Tuesday, November 4, 2014

Conflict and judicial recusal

Conflict of interest remains a challenging area for judicial officers. 

The recent Newfoundland and Labrador decision in Cabana v. Newfoundland and Labrador, 2014 NLCA 34 suggests that disqualifying conflict may not be present in matters where Ontario judicial officers have customarily found it. 

As a general rule Ontario judicial officers decline to hear contested matters where one of the parties is represented by someone who is a member of the same law firm as the judicial officer's spouse. So a judge will not hear her husband's associate argue a matter. 

The customary refusal is based in part on the view that there is a potential (albeit slight) financial benefit to the judge or justice in ruling in favour of a spouse's colleague. More generally some would see it as unseemly for a judicial officer's spouse's associate to appear before the judicial officer. 

The Newfoundland and Labrador Court of Appeal disagreed with this traditional position. The Court was unconcerned about the whether and attendance was seemly. Further the Court noted that disqualification for financial gain is not automatic in Canada.  In the case of a judicial officer's spouse appearing the court said the financial benefit was too remote to matter:

"The question is whether the possible financial gain satisfies the reasonable apprehension of bias test. ...

The fact that the judge's husband earns money as a partner in the law firm and that a portion of that money comes from litigation undertaken by the firm cannot form the basis for a finding of reasonable apprehension of bias by the judge in this case.  "

Accordingly disqualification was not required. 

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