Date: 20030624
Docket: A-723-01
Citation: 2003 FCA 277
CORAM: DESJARDINS J.A.
ISAACJ.A.
BETWEEN:
TREVOR NICHOLAS CONSTRUCTION CO. LIMITED
Appellant
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE MINISTER FOR PUBLIC WORKS CANADA
Respondent
Heard at Toronto, Ontario, on June 5, 2003.
Judgment delivered at Ottawa, Ontario, on Tuesday, June 24, 2003.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: DESJARDINS J.A.
ISAAC J.A.
Date: 20030624
Docket: A-723-01
Citation: 2003 FCA 277
CORAM: DESJARDINS J.A.
BETWEEN:
TREVOR NICHOLAS CONSTRUCTION CO. LIMITED
Appellant
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE MINISTER FOR PUBLIC WORKS CANADA
Respondent
REASONS FOR JUDGMENT
[1] This appeal arises from a judgment of Simpson J. (the Trial Judge), dated November 23, 2001, reported as (2001) 15 C.L.R. (3d) 256, 2001 FCT 1282. The Trial Judge decided that there was no basis to conclude that the Minister of Public Works Canada had breached his contractual obligation to treat the appellant, Trevor Nicholas Construction Co. Limited (Trevor), fairly. This issue arose in relation to a tender submitted by Trevor in respect of the dredging and construction of a marine service dock at Meaford, Ontario.
[2] This appeal was commenced in Toronto on October 10, 2002. Although the appellant was represented by counsel at trial, Mr. John Susin, the president of Trevor, represented Trevor on appeal. During the course of argument, Mr. Susin became ill and the matter was adjourned to a date to be fixed by the Judicial Administrator. On June 5, 2003, the appeal was continued and concluded before this panel.
[3] In its written submissions, the appellant advanced twenty-two grounds in support of this appeal, some of which allege errors of fact or inferences of fact on the part of the Trial Judge; others allege errors of law; and another raises an allegation of an apprehension of bias against the appellant on the part of the Trial Judge.
[4] The principles of appellate review were restated by Major and Iacobucci JJ., writing for the majority of the Supreme Court of Canada, in Housen v. Nikolaisen (2002), 211 D.L.R. (4th) 577, 2002 SCC 33 (Housen). In Housen, the Court explained that matters of law are to be reviewed on a standard of correctness, and findings of fact and inferences of fact by a trial judge are not to be interfered with absent a palpable and overriding error.
[5] Overall, the appellant has not persuaded me that the Trial Judge committed any errors of law that warrant the intervention of this Court, or committed any palpable and overriding errors in her findings of fact or in the inferences she drew from the facts found. It is not the role of this Court to redetermine the factual findings of the Trial Judge, as it has long been settled that appellate courts must treat a trial judge's findings of fact with great deference.
[6] Two issues do, however, require specific comment.
[7] First of all, I note that the respondent conceded some misunderstanding on the part of the Trial Judge when she found that the appellant, in June of 1990, had refused to undertake some clean-up and repair work until August 1990 (see Reasons for Judgment at paragraph 20, point 6). The evidence reveals that the appellant sought an extension of time in which to complete the work. That being said, I am satisfied that this finding is not so overriding as to vitiate the Trial Judge's ultimate conclusion that there was no unfairness in the treatment of the appellant by the respondent on the Meaford Project. There was ample other evidence to support this result (see Reasons for Judgment, paragraphs 17 to 27).
[8] Second, I refer specifically to the allegation of an apprehension of bias against the Trial Judge. The Supreme Court of Canada discussed the test for a reasonable apprehension of bias in R. v. R.D.S., [1997] 3 S.C.R. 484. Cory and Iacobucci JJ., in their concurring reasons in that case, explained at paragraph 111 the applicable test for apprehension of bias:
The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34.
[9] To support its allegation of bias in this case, the appellant refers to two occurrences: (1) interchanges between Mr. Susin and the Trial Judge, where the Trial Judge asked Mr. Susin, during his testimony, to clarify his responses; and (2) the Trial Judge allowed hearsay evidence of the respondent to be admitted, while disallowing hearsay evidence to be tendered by the appellant. The appellant also cites two cases from the Ontario Court of Appeal in support of its assertion of bias: Sorger v. Bank of Nova Scotia, 160 D.L.R. (4th) 66 (C.A.), and J.M.W. Recycling Inc. v. Attorney General of Canada (1982), 35 O.R. (2d) 355 (C.A.).
[10] In both of these cases relied on by the appellant, the trial judges made numerous and one-sided interventions, and prejudged both the credibility of witnesses and certain trial issues. This is clearly not the case here. The Trial Judge's questions of Mr. Susin were confined to the clarification of relevant evidence, and cannot be characterized as cross-examination, as alleged by the appellant. The Trial Judge, in fact, also asked clarifying questions to the respondent's witness.
[11] Furthermore, in this case, the Trial Judge's acceptance of hearsay evidence and an expert report prepared by Colin B. Fairn for the respondent do not demonstrate any bias or favouritism towards either litigant. In fact, at trial the appellant was represented by counsel, who raised no objections as to the admissibility of any of respondent's evidence that the appellant now contests. The admission of and weight, if any, that was to be ascribed to all of this evidence were determinations that were properly addressed by the Trial Judge in the absence of objections by the appellant. In these circumstances, there is no basis for the appellant's claim of an apprehension of bias.
[12] I would dismiss this appeal with costs.
"B. Malone"
J.A.
"I agree
Alice Desjardins
J.A."
"I agree
Julius A. Isaac
J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-723-01
STYLE OF CAUSE: TREVOR NICHOLAS CONSTRUCTION CO. LTD. V. HER MAJESTY THE QUEEN AS REPRESENTED BY THE MINISTER FOR PUBLIC WORKS
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED NOVEMBER 23, 2001, TRIAL DIVISION FILE NO. T-2034-91
PLACE OF HEARING: HELD BY VIDEO CONFERENCE BETWEEN OTTAWA AND TORONTO, ONTARIO
DATE OF HEARING: JUNE 5, 2003
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: DESJARDINS J.A.
ISAAC J.A.
DATED: JUNE 24, 2003
APPEARANCES:
Mr. John Susin FOR THE APPELLANT
Mr. Christopher Parke FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT