L.N. v. S.M., (2007) 412 A.R. 232 (CA)

• Judge: Conrad, McFadyen and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 10, 2007
• Citations: (2007), 412 A.R. 232 (CA);2007 ABCA 258

L.N. v. S.M. (2007), 412 A.R. 232 (CA);

      404 W.A.C. 232

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.035

L.N. (respondent/plaintiff) v. S.M. (appellant/defendant)

(0601-0322-AC; 2007 ABCA 258)

Indexed As: L.N. v. S.M.

Alberta Court of Appeal

Conrad, McFadyen and Berger, JJ.A.

August 10, 2007.

Summary:

Spouses chose to resolve a custody dispute through Judicial Dispute Resolution (JDR) conducted by Clark, J. The result was a negotiated consent order that the child live with the father, with the mother exercising access. The spouses consented to Clark, J., remaining seized of the matter. The mother alleged a breach of the consent order and sought a change of custody. Rather than a review of custody to ensure compliance with the consent order, Clark, J., conducted a full custody trial. The mother was awarded custody and permitted to move to Newfoundland with the child. Neither spouse raised the issue of bias nor asked Clark, J., to recuse himself and Clark, J., did not seek the spouses' express consent to conduct the trial. The father appealed. At issue was whether Clark, J., as the JDR judge, was disqualified from conducting the subsequent trial, even if the spouses consented, or whether he should have recused himself.

The Alberta Court of Appeal, McFadyen, J.A., dissenting, allowed the father's appeal, set aside the custody order and ordered a new trial. Clark, J., as the JDR judge, should not have conducted the trial, even if the spouses did not object to, or consented to, his conducting the trial. Clark, J., had a duty to recuse himself. The mere fact of the trial judge also being the JDR judge raised a reasonable apprehension of bias. McFadyen, J.A., dissenting, opined that the court should not deal with the issue of bias which was raised for the first time on appeal. In any event, the Guidelines for Judicial Dispute Resolution permitted parties to consent to the continuation of the proceedings, including the trial, before the JDR judge. This policy could not be set aside by the Court of Appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings (incl. judicial dispute resolution) - [See first Practice - Topic 5269.1 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See first Practice - Topic 5269.1 ].

Courts - Topic 696

Judges - Disqualification - Bias - Waiver - Spouses in a custody dispute did not object to the judge who conducted the Judicial Dispute Resolution also conducting a subsequent trial on the issue of custody - At issue was whether the failure to raise the issue of bias until appeal constituted a waiver - The Alberta Court of Appeal held that, according to the Supreme Court of Canada, "in order to maintain the integrity of the court's authority, allegations of bias must 'as a general rule' be brought forward as soon as it is reasonably possible to do so" - The court stated that "it seems to me that the emphasized choice of language has as its purpose to allow for the exceptional case where the court might exercise its discretion to declare a pronouncement void in the face of allegations of impartiality that impugn trial fairness to such a degree that appellate intervention may be warranted even in circumstances where the complaint was not as timely as might be preferred. ... Where the trial judge is himself aware of statements made by him at a JDR which, arguably, support the contention of a lack of impartiality, the failure to canvass whether waiver was freely made with full knowledge of all of the facts may relieve the aggrieved party from not having raised the issue of reasonable apprehension of bias in a timely fashion. ... for a waiver to be effective it must be express and unequivocal and it must be clear that the party waiving the safeguard or jurisdictional taint fully understands the consequences of so doing." - See paragraphs 25 to 29.

Practice - Topic 5269.1

Trials - General - Judicial or alternate dispute resolution - General - Spouses chose to resolve a custody dispute through Judicial Dispute Resolution (JDR) conducted by Clark, J. - The result was a negotiated consent order that the child live with the father, with the mother exercising access - The spouses consented to Clark, J., remaining seized of the matter - The mother alleged a breach of the consent order and sought custody - Rather than reviewing custody to ensure compliance with the consent order, Clark, J., conducted a full custody trial - The mother was awarded custody and permitted to move to Newfoundland with the child - Neither spouse raised the issue of bias nor asked Clark, J., to recuse himself and Clark, J., did not seek the spouses' express consent to conduct the trial - The father appealed - At issue was whether Clark, J., as the JDR judge, was disqualified from conducting the subsequent trial on the ground that his role as JDR judge raised a reasonable apprehension of bias, even though the spouses consented to him conducting the trial - The Alberta Court of Appeal held that a JDR judge conducting the subsequent trial raised a reasonable apprehension of bias - The court stated that "the principled exclusion of JDR judges from the trial role, premised upon the confidentiality of JDR discussions in furtherance of candour and transparency, enhances the efficacy of the process and facilitates the settlement of disputes. I am persuaded that trial judges should not be privy to such discussions, even with the consent of the parties, because to so permit diminishes the efficacy of JDRs and inevitably raises the spectre of an apprehension of bias in subsequent trial or contested chambers proceedings. ... The mere silent acquiescence of the parties to thereafter proceed with the trial, even if it amounted to an implied consent, did not relieve the judge of the duty to recuse himself, nor did the failure of the parties to bring a motion for recusal." - See paragraphs 10 to 39.

Practice - Topic 5269.1

Trials - General - Judicial or alternate dispute resolution - General - The Alberta Court of Appeal, in discussing the nature and purpose of Judicial Dispute Resolution (JDR), stated that "a judge's role at JDR is very different than that of an adjudicating judge. The substance of negotiations at a JDR never come before a trial judge. Trial judges do not caucus with the parties. Trial judges are never privy to offers of settlement made at the JDR before they adjudicate on the merits. Moreover, when the JDR is arranged, counsel are reminded that 'the non-binding opinion of the [JDR] judge that may be rendered is strictly confidential. ... It will not be discussed with a trial judge.' At a JDR, the judge deals directly with the parties. The judge's role is to facilitate settlement negotiations and resolve outstanding issues. The JDR judge will converse with the litigants and may express his opinion regarding the competing positions." - See paragraph 31.

Practice - Topic 5269.1

Trials - General - Judicial or alternate dispute resolution - General - The Alberta Court of Appeal stated that "I do not say that there will not be situations where a judge will be invited to conduct a JDR with respect to a discrete number of issues with the consent of the parties and then preside at a trial where the remaining issues in dispute, which were not discussed at the JDR, are adjudicated. But even in those cases, a judge must be very careful to consider whether there would be an appearance of bias and, accordingly, must ensure that the matter is thoroughly canvassed and an express, informed consent obtained. Judges, litigants and their counsel must understand that an implied waiver of apprehension of bias in these circumstances will not immunize the trial verdict from appellate intervention. I also acknowledge that there will be situations where a JDR judge may stay involved in non-trial matters following the JDR. But they should be confined to non-contentious issues like signing an order reflecting the settlement agreement. It may also be that on a small outstanding issue the parties will consent to the JDR judge making a decision to finalize a settlement. Any such consent should be clear and unequivocal; it should particularize with care the matters to which the consent applies." - See paragraphs 34 to 35.

Waiver - Topic 4

General principles - Requirements of valid waiver - [See Courts - Topic 696 ].

Cases Noticed:

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 9].

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. 17].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 23].

White v. White (2003), 346 A.R. 51; 320 W.A.C. 51; 2003 ABCA 358, refd to. [para. 24].

Ghirardosi v. British Columbia (Minister of Highways), [1966] S.C.R. 367, refd to. [para. 26].

Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174; 195 D.L.R.(4th) 399 (F.C.A.), refd to. [para. 27].

R. v. Park, [1981] 2 S.C.R. 64; 37 N.R. 501, refd to. [para. 28].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [para. 29].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), leave to appeal refused (1986), 72 N.R. 77 (S.C.C.), refd to. [para. 60].

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. 62].

Abernethy (J.W.) Management & Consulting Ltd. et al. v. 705589 Alberta Ltd. et al. (2005), 367 A.R. 38; 346 W.A.C. 38; 2005 ABCA 103, refd to. [para. 79].

Wilbur v. Foothills Hospital et al. (2005), 367 A.R. 191; 346 W.A.C. 191; 2005 ABCA 220, refd to. [para. 85].

R. v. Bolt (R.I.) (1995), 162 A.R. 204; 83 W.A.C. 204 (C.A.), refd to. [para. 92].

R. v. Werner, [2005] A.R. Uned. 736; 2005 NWTCA 5, refd to. [para. 92].

R. v. Teskey (L.M.) (1995), 167 A.R. 122 (Q.B.), refd to. [para. 92].

R. v. Trang (D.) (2002), 332 A.R. 1; 2002 ABQB 1130, refd to. [para. 92].

R. v. Sammy, [2002] O.J. No. 2913 (C.J.), refd to. [para. 92].

R. v. James (D.B.) (2000), 147 B.C.A.C. 153; 241 W.A.C. 153; 2000 BCCA 616, refd to. [para. 92].

R. v. Novak (P.) (1995), 59 B.C.A.C. 152; 98 W.A.C. 152 (C.A.), refd to. [para. 92].

Van de Perre v. Edwards - see K.V.P. v. T.E.

Bachor v. Lehmann-Bachor (2001), 277 A.R. 269; 242 W.A.C. 269; 2001 ABCA 53, refd to. [para. 98].

L.W.E. v. G.L.E. (2004), 354 A.R. 40; 329 W.A.C. 40; 2004 ABCA 179, refd to. [para. 98].

Barter v. Barter (1996), 42 Alta. L.R.(3d) 221 (C.A.), refd to. [para. 98].

M.M.K. v. U.K. (1990), 109 A.R. 241 (Q.B.), refd to. [para. 98].

Authors and Works Noticed:

Agrios, John A., A Handbook on Judicial Dispute Resolution for Canadian Judges (2005 Update), Version 2.9, pp. 22, 23, 24 [para. 12].

Canadian Judicial Council, Ethical Principles for Judges, §§ E.13, E.14 [para. 30].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), pp. 379 [para. 20]; 242 [para. 21].

Counsel:

R.S. Foster, Q.C., for the appellant;

P.L. Pritchett, for the respondent.

This appeal was heard on February 12, 2007, before Conrad, McFadyen and Berger, JJ.A., of the Alberta Court of Appeal.

On August 10, 2007, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Berger, J.A. (Conrad, J.A., concurring) - see paragraphs 1 to 41;

McFadyen, J.A., dissenting - see paragraphs 42 to 101.