Bossé et al. v. Lavigne, 2015 NBCA 54

• Judge: Larlee, Richard and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 26, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 54;(2015), 440 N.B.R.(2d) 118 (CA)

Bossé v. Lavigne (2015), 440 N.B.R.(2d) 118 (CA);

    440 R.N.-B.(2e) 118; 1148 A.P.R. 118

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. AU.016

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AU.016

Benoit Bossé and Les Immeubles Robo ltée (appellants) v. Lucie A. Lavigne (respondent)

(121-14-CA; 2015 NBCA 54)

Indexed As: Bossé et al. v. Lavigne

Répertorié: Bossé et al. v. Lavigne

New Brunswick Court of Appeal

Larlee, Richard and Quigg, JJ.A.

August 27, 2015.

Summary:

Résumé:

The plaintiffs (Bossé and a company that he controlled) sued Lavigne, J., respecting conduct that occurred when Lavigne, J., was a practising lawyer. Lavigne, J., moved for summary judgment.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the motion on the basis that all of the claims were prescribed under the Limitation of Actions Act. The plaintiffs appealed. The plaintiffs moved for the recusal of each member of the appeal panel assigned to hear the appeal on the following grounds: (1) one member sat on a 1999 appeal in a matter in which the plaintiffs had been respondents (see 222 N.B.R.(2d) 192; 570 A.P.R. 192); (2) two members were on a panel of the court which dismissed a 2014 appeal in a matter involving Bossé's brother and sister-in-law in which Bossé had filed an affidavit in support of their appeal (419 N.B.R.(2d) 1; 1090 A.P.R. 1); and (3) there was an appearance of institutional bias from the fact that Lavigne, J., was now a judge of the Court of Queen's Bench.

The New Brunswick Court of Appeal dismissed the motion.

Courts - Topic 685

Judges - Disqualification - Bias - General - The New Brunswick Court of Appeal summarized the principles that governed the disposition of motions for recusal based on bias - See paragraph 7.

Courts - Topic 687

Judges - Disqualification - Bias - By appeal court judge - The plaintiffs (Bossé and a company that he controlled) sued Lavigne, J., respecting conduct that occurred when Lavigne, J., was a practising lawyer - Lavigne, J., obtained an order for summary judgment dismissing the claims against her on the basis of prescription - The plaintiffs appealed - The plaintiffs moved for the recusal of each member of the appeal panel assigned to hear the appeal - The New Brunswick Court of Appeal dismissed the motion - Each member of the panel, viewing the matter individually, concluded that there was no subjective reason for the members to recuse themselves - None of the members, or their respective families or close friends or associates, had any stake in the outcome, or any personal relationship with any of the parties - The argument that they should recuse because Lavigne, J., was now a Queen's Bench judge was untenable - A reasonable and well-informed person would not consider it likely that a member of the panel was unable to decide the current matter on its merits in fulfilment of the oath of office simply because several years ago the member sat on a panel that ruled against the plaintiffs - That person would also not perceive bias from the fact that the other two panel members had decided an unrelated appeal involving Bossé's relatives in which Bossé had sworn an affidavit in support of the relatives' claim - See paragraphs 8 to 11.

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - [See Courts - Topic 687 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 687 ].

Cases Noticed:

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 3].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 5].

Brooks v. Fredericton Police Force et al. (2015), 433 N.B.R.(2d) 371; 1130 A.P.R. 371; 2015 NBCA 18, refd to. [para. 5].

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. 6].

R. v. Elrick, [1983] O.J. No. 515 (H.C.), refd to. [para. 6].

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. 6].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 6].

Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al. (2006), 299 N.B.R.(2d) 369; 778 A.P.R. 369; 2006 NBCA 61, refd to. [para. 6].

Murray v. New Brunswick Police Commission (2012), 389 N.B.R.(2d) 372; 1008 A.P.R. 372; 2012 CarswellNB 355, refd to. [para. 6].

Lacey-House v. Lambert (2013), 406 N.B.R.(2d) 346; 1053 A.P.R. 346; 2013 NBCA 48, refd to. [para. 6].

Gaudet et al. v. Dugas (2014), 416 N.B.R.(2d) 389; 1079 A.P.R. 389; 2014 NBCA 7, refd to. [para. 6].

Rose v. New Brunswick (Departments of Justice) et al. (2015), 435 N.B.R.(2d) 259; 1134 A.P.R. 259; 2015 NBCA 26, refd to. [para. 6].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2015), 471 N.R. 206; 370 B.C.A.C. 1; 635 W.A.C. 1; 2015 SCC 25, refd to. [para. 18].

Authors and Works Noticed:

Canadian Judicial Council, Ethical Principles for Judges (1998), generally [para. 3].

Counsel:

Avocats:

Benoit Bossé appeared in person, for the appellants;

Lucie Richard, Q.C., for the respondent.

This motion was heard on June 26, 2015, by Larlee, Richard and Quigg, JJ.A., of the New Brunswick Court of Appeal. The court delivered the following decision in both official languages on August 27, 2015.