Paralegal Donates to Deputy Judge's Fundraising Campaign; DJ Should Have Recused Himself

There's a recent case from the Divisional Court, Robinson v. Lepage, dealing with the concept of 'reasonable apprehension of bias'.

Ms. Lepage sued Mr. Robinson in breach of contract, and obtained an award of just under $4400, plus $1650 in costs.  The trial decision was made by Deputy Judge Lyon Gilbert.

The wrinkle arises in that Deputy Judge Gilbert had been fundraising for the CN Ride for CHEO - a charity bicycle ride in which he was participating.  Nine days before the trial, Ms. Lepage's paralegal made a donation to his fundraising campaign, leaving a comment applauding him for raising funds for such a great cause.

As the Divisional Court found:

When the Appellant learned of Deputy Judge Gilbert’s relationship with Phoenix Paralegal & Advocacy and the Respondent’s representative, Tami Cogan, after receiving the decision of the court, he could not but think that he did not receive a fair trial and that the judge was biased in favour of the Respondent (Plaintiff). Any informed person, viewing the matter realistically and practically would arrive at the same conclusion.

Accordingly, the Deputy Judge should have recused himself, and the Divisional Court ordered a new trial.

Commentary

Here's a question:  What if the donation hadn't been 9 days before the trial, but 90?  Or 900?  Is it a problem for a Deputy Judge to raise funds for a good cause (and there's no question that CHEO is a good cause) at all, such that he or she can never adjudicate a dispute argued by or on behalf of somebody who made a donation, ever again?

It's a fuzzy logic question, and pretty hypothetical, but I might argue that 9 days is as good as 900, in large part because it would be quite unusual for a paralegal to know which Deputy Judge she will be appearing before, 9 days in advance of the trial.  And while it wouldn't surprise me to find that the paralegal's donation was part of a 'butter up the Deputy Judges' approach to social networking, Ottawa has quite a few Deputy Judges.

Deputy Judges are lawyers who serve on a per diem basis.  They remain part of the local bar, and deal with other lawyers and paralegals as equal colleagues.  Deputy Judge Gilbert has served in this role for 30 years.

Full-time judges have to be very cognizant, at all times, of the optics of their interactions with other lawyers and the general public.  Still, judges are chosen from the ranks of lawyers, and there's often history.  That history doesn't necessarily create bias.

And for Deputy Judges, that history can be ongoing.  It's entirely plausible for a Deputy Judge to litigate against another lawyer in Superior Court one day, and then adjudicate one of that lawyer's other files the next.  It's a different kind of relationship that Deputy Judges have with local lawyers and paralegals.  It's not only plausible, but actually likely, that Deputy Judges will socialize with the lawyers (and, to a lesser extent, paralegals) who occasionally appear before him or her.  In the legal community, we're all supposed to be friends and colleagues, whichever side of the bench we're on, and that's especially true of Deputy Judges.

And considering that this wasn't a gift to the Deputy Judge, but a donation to his CHEO fundraising campaign, it's not a scenario where the Deputy Judge can be said to have received any benefit.  Likewise, it wasn't from the plaintiff, but rather from the plaintiff's paralegal - a colleague in the Ottawa legal community, supporting the Deputy Judge's efforts to raise funds for a good cause.

Is It Inappropriate For Deputy Judges to Engage in Fundraising At All?

In the Divisional Court's decision, there appears to be a suggestion - without a finding - that it was a violation of judicial ethics for the Deputy Judge to engage in fundraising at all.  There's a citation of the CJC's Ethical Principles for Judges, highlighting that:

Judges should not solicit funds (except from judicial colleagues or for appropriate judicial purposes) or lend the prestige of judicial office to such solicitations.

Which makes sense.  And it also makes sense that, while the CJC's rules don't strictly apply to Deputy Judges, we would have similar expectations.

But it also seems to me that this particular rule might have to be modified when discussing Deputy Judges.  Note that it's actually okay for Federally-appointed judges to solicit funds "from judicial colleagues".  That, doubtless, wouldn't include Deputy Judges in the first place.  But when you start applying the rule to Deputy Judges themselves, ask "Who are their judicial colleagues?"  Other Deputy Judges?  Well, that would still be troubling, because most Deputy Judges are partners in firms of lawyers who might appear before other Deputy Judges.  And if Deputy Judge A donates to Deputy Judge B's campaign, a week before an employee of A's firm litigates a matter in front of B...well, that's basically indistinguishable from this fact pattern.

Here's the distinction:  Deputy Judges aren't walking around with the "prestige of judicial office" in their day-to-day lives.  It's a part time gig.  Ask them what they do, and they'll say, "I'm a lawyer."  On Deputy Judge Gilbert's fundraising page, he identified himself as a member of the Ottawa legal community.

In Superior Court, I'll deal with opposing counsel in essentially the same way, regardless of whether or not he's a Deputy Judge.  Outside of the Small Claims Court, I wouldn't call a Deputy Judge "Your Honour"; I'd call him "My Friend".  Yes, that's literally the appropriate courtroom etiquette for lawyers.  Would a lay litigant, seeing the Deputy Judge who ruled in favour of my client later call me his "friend", think that there's something hokey in the system?  Probably, but that's based on a misapprehension of the facts, and of the roles and relationships in play between members of the legal community, and does not give rise to a reasonable apprehension of bias.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Best Theratronics Loses Its Appeals

Over the last several months, I've discussed several wrongful dismissal cases involving Best Theratronics, including the Court of Appeal's decision in Arnone v. Best Theratronics earlier this year.

Two more appellate decisions have recently been released, in Vist v. Best Theratronics and Beatty v. Best Theratronics.

Vist

This was a decision I discussed last June, dealing with interesting questions surrounding the treatment of non-continuous service periods for the purpose of determining the length of the reasonable notice period.

In my discussion, I expressed some reticence about the ultimate decision:  On these facts, it seemed to me that it was a Boolean question of "Was there an agreement to recognize the employee's previous years of service?"  If yes, they get recognized.  If not, then probably not.  And this was an ambiguous question which could have gone either way.  But instead Justice Blishen took a compromise approach, purporting to not regard the years of service cumulatively, while nonetheless giving "some credit" for them.  Even then, it's not clear what credit she gave, because she only awarded 6 months, which I regarded as being "within or near" the reasonable range under the circumstances.

The Divisional Court's discussion is very interesting.  The employer appealed on three grounds:

1. that the treatment of the previous years of service was wrong, and Vist shouldn't have gotten any credit for them;
2. that Vist failed to mitigate his damages by looking for lower-level employment instead of employment at the same senior level he had previously occupied;
3. that the plaintiff should have been denied costs, because his award was ultimately within the Small Claims Court jurisdiction, after considering mitigation earnings - $24,924.29, which is $75.71 short of the maximum claim in Small Claims Court.  (The judge awarded 'partial indemnity' costs in the amount of $23,000.)

On the first issue, the Court accepted that the ambiguity of the contract permitted an interpretation to give 'some credit' to the employee for the additional years of service, but highlights that in any event it's clear that the judge did not give full credit - because if she had, the notice period would have been 2 to 3 times what it was.  Assuming a 2.5 year employee under the circumstances, the Divisional Court regarded the reasonable notice period as being in a range from 3-6 months, and therefore the judge's award was within the range.

On the second issue, the Court was critical of the employer for even pursuing it:  Vist successfully mitigated, at a lower level, fairly quickly, and the employer received the benefit of that.  Had he been seeking a higher-level position, it presumably would have taken him significantly longer to find it, generating a greater cost to the employer.

And on the third issue, the trial judge did err slightly:  She concluded that the award actually exceeded the Small Claims Court jurisdiction, including interest, thus improperly denying herself the discretion to deny costs.  However, under all the circumstances, given that she nonetheless awarded costs on a scale that rivalled the judgment itself, the Divisional Court felt that it was "pretty clear" which way her discretion would have gone, so it was pointless to remit the matter back to her.

Beatty

My original commentary on the Beatty case focused on the application of the new summary judgment rules to a fairly common employment law scenario:  Where there's a simple wrongful dismissal claim with a side claim for bad faith damages, it may be easy to resolve questions like liability for reasonable notice on summary judgment, yet more complicated in some cases to address entitlements to moral damages.  In Beatty, Justice Hackland determined that he could determine some of the issues, but referred the moral damage issues to a summary trial.

Best Theratronics appealed on two issues:  Firstly, it claimed that Justice Hackland erred in his assessment of the reasonable notice period; secondly, it argued that Justice Hackland erred in finding that the plaintiff had taken reasonable steps in mitigation.

These arguments both have two facets:  On the one hand, they're saying "Justice Hackland made the wrong decision; he should have ruled this way instead"; on the other hand, they're arguing "Justice Hackland lacked the evidentiary basis to find the way he did, and should have at least ordered a trial on the issue."

The Court of Appeal rejected all the employer's arguments.

Notice Period

The employer argued that Justice Hackland had erred by applying the "rule of thumb" approach of one month per year of service, awarding 16 months for 16 years of service.  The Court of Appeal expressly rejected such a "rule of thumb" approach in 1999.

There is a slightly concerning passage in Justice Hackland's decision to this end:

 The plaintiff’s submission is that he is entitled to 16 months’ notice, being a fairly standard one month per year of employment calculation based on a consideration and balancing of all of the recognized factors set out in Bardal v. Globe and Mail (1960), 24 D.L.R. (2d) 140.

Still, the Court of Appeal rejected the notion that 'one month per year of service' is how Justice Hackland came to this answer.  He referred to the appropriate principles, and to comparable case law, in assessing this figure.  He referred to the employer's submission - that 12 weeks was sufficient - as "remarkable", having "no real rationale".  (My read of Justice Hackland's language is that the "fairly standard" language contrasted the plaintiff's submission - which appeared to be in the ballpark - to the defendant's submission...which didn't.)

Mitigation

The employer argued that the defendant had failed to mitigate, because his efforts at a job hunt were inadequate.  The employer put forward a number of positions that were available, but for which the plaintiff had not applied; Justice Hackland found that these jobs were not such that the plaintiff would have been required to apply (because they were not comparable to the job he had before), and therefore the employer had not satisfied its onus of proving a failure to mitigate.  The Court of Appeal agreed with the assessment.

Availability of Summary Judgment

This is kind of the most important, but simplest, aspect of the decision:

This is a case where it was manifestly fair and just for the motion judge to determine the issues he did in a summary manner. The motion judge had a full evidentiary record. The parties filed affidavits, and the respondent was cross-examined. There were no real credibility or even factual issues relevant to the period of reasonable notice and mitigation.

It is increasingly appearing that motions for summary judgment will be very common in wrongful dismissal matters, moving forward.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Ontario Court of Appeal Upholds Danbury Ruling

Over a year ago, I posted about the decision in King v. 1416088 Ontario Ltd., dealing with the 'common employer' doctrine.

To briefly summarize, the case dealt with an unusual fact pattern in which Mr. King had worked for Danbury for many years, then the old business shut down, and the old owner's relative started a new business started up carrying on the Danbury name (which rights the new corporation had acquired many years prior).  However, part of Mr. King's duties prior to his dismissal involved making the accounting transition to the new company.

This week, the Court of Appeal released its reasons, upholding the trial decision.  It's a short endorsement, finding that the trial judge's decision was warranted.

It's a cautionary tale for employers, that it may be difficult or even impossible to transition a company in such a ways as to relieve the new company of employment-related liabilities of the old one.  There are better ways of addressing such transitional issues - talk to an employment lawyer before any large-scale restructures.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.