Monday, May 25, 2015

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.


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.


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.

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