Bailey v. Barbour, 2012 ONCA 325

• Judge: Juriansz, LaForme and Ducharme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 18, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 325;(2012), 291 O.A.C. 344 (CA)

Bailey v. Barbour (2012), 291 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MY.020

Angelina Bailey (claimant/appellant) v. Gerald Harry Barbour (objector/respondent)

(C55105; 2012 ONCA 325)

Indexed As: Bailey v. Barbour

Ontario Court of Appeal

Juriansz, LaForme and Ducharme, JJ.A.

May 16, 2012.

Summary:

Barbour and Bailey were in a long term battle over their respective rights to the waterfront properties. The Deputy Director of Titles found that an objection filed by Barbour was not valid and granted Bailey possessory title to a portion of the parcel claimed by Barbour (a narrow access route across Barbour's property to Bailey's property). Barbour appealed. At trial, the judge alerted the parties to a potential conflict of interest, but refused Bailey's request that he recuse himself.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 4019, allowed the appeal. Bailey appealed, raising eight issues, including whether it was appropriate and necessary in the interest of justice for the judge to recuse himself.

The Ontario Court of Appeal allowed the appeal, holding that Bailey had established a reasonable apprehension of bias. The court ordered a new trial before a different judge.

Courts - Topic 691

Judges - Disqualifications - Reasonable apprehension of bias - Barbour and Bailey were in a long term battle over their respective rights to the waterfront properties - The Deputy Director of Titles found that an objection filed by Barbour was not valid and granted Bailey possessory title to a portion of the parcel claimed by Barbour - Barbour appealed - At trial, the judge alerted the parties to a potential conflict of interest, but refused Bailey's request that he recuse himself - The trial judge allowed the appeal - Bailey appealed, asserting that the judge should have recused himself - The Ontario Court of Appeal allowed the appeal - The trial judge's wife (a real estate agent) had connections to the people and to the properties at the heart of dispute, including the following: (a) one of her clients (Lauridsen) was expected to be a witness in the trial; (b) another client was Lauridsen's sister; (c) the sisters were the daughters of the late Mrs. Rice, whose estate owned land that abutted Barbour's property; (d) Mrs. Rice joined Bailey as an objector to Barbour's Boundaries Act application in 2002, and testified on Bailey's behalf; (e) in the proceeding under the Land Titles Act, relevant evidence admitted by Deputy Director of Titles included statutory declarations of Mrs. Rice and her sister, by then both deceased, and a sworn affidavit of Lauridsen - The judge's wife had a great deal of knowledge about the parties to the dispute and an ongoing interest in the litigation and its result - A reasonable person properly informed would have concluded that her connection to the property was deep, current and multi-layered - The judge failed to weigh the assertion of bias carefully and contextually, taking account of all relevant circumstances - Bailey had met the high threshold required to establish a reasonable apprehension of bias.

Courts - Topic 694

Judges - Disqualifications - Bias - Participation of spouse in case - [See Courts -Topic 691 ].

Cases Noticed:

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 17].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 18].

Pinochet, Re, [1999] 2 W.L.R. 272; 237 N.R. 201; [1999] 1 All E.R. 577 (H.L.), refd to. [para. 19].

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304; [1969] 1 Q.B. 577 (C.A.), refd to. [para. 20].

Benedict v. Ontario (2000), 136 O.A.C. 259; 51 O.R.(3d) 147 (C.A.), refd to. [para. 21].

Counsel:

Robert J. Fenn, Richard Rohmer (O.C.), Q.C., Izaak De Rijcke and Patrick M. Floyd, for the appellant;

Jeffrey Streisfield, for the respondent.

This appeal was heard on April 18, 2012, by Juriansz, LaForme and Ducharme, JJ.A., of the Ontario Court of Appeal. The following judgment of the court was released on May 16, 2012.