Monday, September 16, 2013

Recusal not justified by the mere fact that a judge was involved in some interlocutory part of a case

Toliver v Koepke, 2013 ABCA 297: 

[5]               The appellant also suggests that two other judges of this Court are disqualified from hearing this appeal, because they also had minor involvement in interlocutory proceedings in the trial court. However, the mere fact that a judge is involved in some interlocutory part of the proceedings does not mean that the judge cannot act in any later parts of it. This is so even if the judge rules against one of the parties on interlocutory issues: Collins v Canada, 2011 FCA 123 (CanLII), 2011 FCA 123, 418 NR 196; Lavesta Area Group Inc. v Alberta (Energy and Utilities Board), 2012 ABCA 84 (CanLII), 2012 ABCA 84 at paras. 26-9, 522 AR 88; R. v Tremblay, 2004 ABCA 102 (CanLII), 2004 ABCA 102 at paras. 4-6; R. v Perciballi 2001 CanLII 13394 (ON CA), (2001) 146 OAC 1 at paras. 21-2, 54 OR (3d) 346 (CA), affirmed 2002 SCC 51 (CanLII), 2002 SCC 51, [2002] 2 SCR 761; D.M.M. v T.B.M., 2011 YKCA 8 (CanLII), 2011 YKCA 8 at para. 39, 311 BCAC 146.

[6]               In order to justify recusal there must be a reasonable apprehension of bias, which is one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information: Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), 2003 SCC 45 at para. 60, 2003 SCC 45 (CanLII), [2003] 2 SCR 259. My dated and limited prior involvement in this case does not meet the test. The application is dismissed.

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