Date: 20050211
Docket: T-1976-04
Citation: 2005 FC 223
BETWEEN:
ROBERT GORDON, Journalist, and
CANADIAN BROADCASTING CORPORATION
Applicants
and
MINISTER OF NATIONAL DEFENCE
Respondent
(Delivered orally from the Bench on Wednesday, February 9, 2005, at Halifax;
subsequently written for precision and clarification)
[1] We are gathered here today in Halifax to hear an application for judicial review in respect of the decision of the Board of Inquiry, Fires and Casualties, concerning the HMCS Chicoutimi, dated 4 November 2004, in which the Board denied Mr. Gordon and the Canadian Broadcasting Corporation ("CBC") access to its hearings with respect to the casualty concerning the Chicoutimi.
[2] Applicant's counsel advised that they only learned today that I would be the presiding judge. They immediately reported and sought instructions, and moved that I recuse myself on the grounds of real or apprehended bias.
[3] The concern with respect to bias arises from the fact that it was I, on 5 November 2004, who dismissed their application for an order staying the Board of Inquiry's hearings until the application for judicial review was heard.
[4] It is somewhat unfortunate that this motion was brought on verbally with no prior notice. Chief Justice Lutfy issued a notice to the parties and the profession on 4 May 2004 informing them that the name of the presiding judge or prothonotary would be available upon request through the Registry as of two weeks prior to the commencement of scheduled hearings. This policy does not extend to the hearing of motions at General Sittings and urgent motions, and of course there may be changes to the assignments of judges or prothonotaries at any time. This notice is circular 1/2004 and is available on the Federal Court website. This led the Minister to complain that the motion should not be heard on such short notice. Nevertheless, I have agreed to waive all irregularities, have dealt with the motion on the merits and have dismissed same with costs.
[5] The concern expressed by Mr. Gordon and the CBC arises out of language used in my reasons supporting the order I issued on 5 November. In the text of the reasons, I said:
To my mind, there is a controlling case, Travers v. Canada (Chief of Defence Staff), 1993, 3 Federal Court, 528, maintained in Appeal at 1994 F.C.J. No. 932.
As I understand it, this Board of Inquiry, like that Board of Inquiry, under the same section of the Act, is a Board of Inquiry "for the purpose of investigating and reporting on" the matter at-hand.
The Applicants draw a distinction. They suggest that under the Terms of Inquiry, this particular Board exercises judicial or quasi-judicial functions.
I cannot agree. The Terms of Reference of the Board of Inquiry must be construed as being within the meaning of Section 45 of the Act.
[6] Counsel for the applicants also noted that immediately after issuing the reasons I said that I had not dealt with the judicial review or in any way tried to dismiss the judicial review.
[7] Counsel for the respondents draw my attention to another passage from my reasons which read:
Urgent Applications require rapid thought and rapid decisions. There is no time for serenity. Tonight, I must rely upon my judicial instinct, which tells me that the Press falls short on all three prongs of the test.
[8] As the parties well know, I was speaking of the three-prong test which relates to interlocutory injunctions or stays of proceedings. In my reasons in November I cited the Supreme Court decision in RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[9] The application for a stay had been brought on on an urgent basis. It was heard by video conference in Ottawa and Halifax on a Friday evening. The hearings were scheduled to start the very next morning in Halifax which certainly explains why I did not have the opportunity to look at the matter in depth and with serenity.
[10] There is a wealth of jurisprudence which deals with real or apprehended bias. It is a cornerstone of our system of justice that not only justice be done but that it be seen to be done. I cannot overstress the importance of both parties having the right to be heard before an impartial decision-maker. The question here is whether the fact I issued an interim order, or the reasons I gave for issuing that order, raise an apprehension of bias.
[11] I rely upon the words of De Granpré J. in dissent in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394, where he asked:
...what would an informed person, viewing the matter realistically and practically--and having thought the matter through-- conclude.
...
... The grounds for this apprehension must ... be substantial...
[12] The role played by a judge or other decision-makers in interlocutory matters has come up for decision before. A recent case, which I consider most helpful, is Charkaoui (Re), 2004 FC 624, a decision of my colleague Simon Noël J. He dealt with an application for disqualification of a judge and the principles relating thereto at paragraphs 5 and following. He said at paragraph 8:
The presumption of integrity and judicial impartiality is such that it allows the judge to act and make rulings in circumstances where he or she has already acquired knowledge in earlier proceedings and decisions involving the same parties.
[13] He relied upon the decision of the Federal Court of Appeal in Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C., and cases cited therein, more particularly the decision of Jackett P., as he then was, in Nord-Deutsche Versicherungs Gesellschaft et al. v. The Queen et al., [1968] 1 Ex.C.R. 443. Jackett P. in turn relied upon the decision of Hyde J. of the Quebec Court of Appeal in Barthe v. The Queen (1964), 41 C.R. 47, where he said: "The ability to judge a case only on the legal evidence adduced is an essential part of the judicial process".
[14] I have had occasion to refer to the same cases in Ianvarashvili v. Canada (Minister of Citizenship and Immigration), 2004 FC 695.
[15] The applicants might think they will have a more difficult time convincing me of the merits of their case because of what I have said earlier with respect to the governing Act and the Travers case. However, this brings to mind the old saw which, in my law school, was attributed to Mr. Justice Migneault when he was sitting on the Supreme Court. He had written a multi-volume text on Quebec civil law which was cited to him. His answer is said to have been: "Things might not appear to me now as they appeared to me then".
[16] Going back to the Ianvarashvili case, I had said at paragraph 9, relying in large measure on what my administrative law professor, Gerald Le Dain, said:
If one were to go one step further and suggest that an adjudicator who erred in law in one case will make the same error again, there would still be no basis whatsoever for asserting bias. While adjudicators should be consistent in their application of the law, an adjudicator can realize even without correction by an appellate court, or by way of judicial review, that he or she was wrong in an earlier decision. Only months after rendering a landmark decision while on the Federal Court of Appeal, Le Dain J.A. said:
... I am now of the view that I was wrong in the conclusion which I reached in the Domestic Converters case (Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. et al. [1982] 1 F.C. 406 at para. 18).
[17] For these reasons I dismissed the application with costs.
"Sean Harrington"
Judge
Ottawa, Ontario
February 11, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1976-04
STYLE OF CAUSE: ROBERT GORDON, Journalist, and
CANADIAN BROADCASTING CORPORATION
AND
MINISTER OF NATIONAL DEFENCE
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: FEBRUARY 9, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: FEBRUARY 11, 2005
APPEARANCES:
David Coles
David Doyle FOR APPLICANTS
Martin Ward FOR RESPONDENT
SOLICITORS OF RECORD:
Boyne Clarke
Dartmouth, Nova Scotia FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT