Digest: Ayers v Miller, 2019 SKCA 2

Date:January 03, 2019

Reported as: 2019 SKCA 2

Docket Number: CACV 3274 , CA19001

Court: Court of Appeal

Date: 2019-01-03


  • Jackson


  • Civil Procedure � Appeal ��Leave to Appeal
  • Statutes � Interpretation � Court of Appeal Act, 2000, Section 8(2)
  • Administrative Law � Apprehension of Bias � Recusal

Digest: The applicants applied for leave to appeal the decision of a Queen�s Bench chambers judge to deny their request that he recuse himself. The recusal application had been initiated after the applicants complained to the Canadian Judicial Council (CJC). Following that complaint, the judge made what the applicants believed to be an unfavourable decision establishing the sequence of a series of upcoming applications that would be heard in the proceedings between the parties by way of a Scheduling Order. The applicants� complaint to the CJC was that there had been inordinate delay in how the judge had been managing the case management process. Shortly after the complaint, the judge released the order. The applicants believed that the schedule favoured the respondents and asked the judge to recuse himself. They maintained that he could not be impartial because of their complaint against him to the CJC. In his written refusal, the judge explained the delay was unavoidable and applied the test in Aalbers to determine whether he could adjudicate the applications without bias and found that a reasonable person would believe that there was no reasonable apprehension of bias and that he could decide the matters fairly. This application for leave was based on the applicants� position, with which the respondents were in agreement, that the recusal fiat was interlocutory and thus governed by s. 8 of The Court of Appeal Act, 2000. The preliminary issue in the application was whether a refusal to recuse was could be appealed.
HELD: The application for leave was dismissed. The court found that it would resolve the matter on the basis that the recusal fiat was an interlocutory order and subject to the test set out in Rothmans. Regarding the question of the merit of the applicants� case, the court found that they had attempted to make a collateral attack on the Scheduling Order by arguing that bias could be inferred from the judge�s delay in issuing his decision in the process. The only evidence that the applicants put forward to support their claim to bias in relation to it was the fact of the sequence of the hearings alone, saying that

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