SOS-Save Our St. Clair Inc. v. Toronto (City) et al., (2005) 204 O.A.C. 63 (DC)

• Judge: Matlow, Greer and E. Macdonald, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 03, 2005
• Jurisdiction: Ontario
• Citations: (2005), 204 O.A.C. 63 (DC)

SOS-Save Our St. Clair Inc. v. Toronto (2005), 204 O.A.C. 63 (DC)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. NO.029

SOS-Save Our St. Clair Inc. (applicant/respondent in motion) v. City of Toronto and Toronto Transit Commission (respondents/moving parties)

(329/05)

Indexed As: SOS-Save Our St. Clair Inc. v. Toronto (City) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Matlow, Greer and E. Macdonald, JJ.

November 3, 2005.

Summary:

The Ontario Divisional Court, per Matlow, Greer and E. Macdonald, JJ., issued an endorsement allowing a judicial review application against the City of Toronto and the Toronto Transit Commission (TTC). The court postponed the filing of reasons so the City and the TTC could file a motion for an order "that justice Matlow recuse himself, that this panel be struck and that this application [for judicial review] be remitted for a new hearing before a reconstituted panel of this court." The City and the TTC argued reasonable apprehension of bias.

Matlow, J., declined to recuse himself. See paragraphs 1 to 119. However, Greer and E. Macdonald, JJ., decided to stand down, declared that the decisions made by the two of them were "null and void" and found that the panel had to be struck and a new panel constituted to hear the application for judicial review de novo. See paragraphs 119 to 139.

Courts - Topic 687

Judges - Disqualification - Bias - Appeal court judge - Matlow, J., of the Ontario Divisional Court, lived on Thelma Street in Toronto - Thelma Street was 0.6 km away from St. Clair Ave. - A development project was proposed for Thelma Street - Matlow, J., and other residents of Thelma Street opposed the project and publicly made their views known to the City of Toronto - They were unsuccessful - Matlow, J., then sat on a panel that heard an application for judicial review against the proposed construction of a streetcar right of way on St. Clair Ave. - The panel also included Greer and E. Macdonald, JJ. - The court allowed the application - The City and the Toronto Transit Commission then brought a motion to the court seeking the recusal of Matlow, J., and a rehearing of the judicial review application - The moving parties argued reasonable apprehension of bias - Matlow, J., alone made the decision on recusal - He declined to recuse himself - However, Greer and E. Macdonald, JJ., declared that their decisions in the judicial review application were null and void - They held as follows: "It is not for us to say that Justice Matlow ought to recuse himself. But in circumstances where we conscientiously believe there is a perception of bias, it is open for us to stand down on the grounds that we believe that the matter is proceeding in breach of the principles of natural justice. Accordingly, we find that the panel must be struck and a new panel constituted to hear the application de novo."

Courts - Topic 691.1

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

Courts - Topic 696

Judges - Disqualification - Bias - Waiver - Matlow, J., of the Ontario Divisional Court, lived on Thelma Street in Toronto - Thelma Street was 0.6 km away from St. Clair Ave - Matlow, J., was on the panel that heard an application for judicial review against the City of Toronto and the Toronto Transit Commission (TTC) in respect of a project on St. Clair Ave. - After the first day of hearing, the City became concerned about the presence of Matlow, J., on the panel, since he had previously, as a citizen, publicly told the City of his opposition to a development project on Thelma Street - No objection was raised - The court continued to sit and eventually allowed the application for judicial review - After that, the City obtained legal advice and, along with the TTC, sought the recusal of Matlow, J., on grounds of reasonable apprehension of bias - Matlow, J., declined to recuse himself, ruling that the moving parties had waived their rights to object on grounds of bias - See paragraphs 18 to 38.

Cases Noticed:

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 36].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), consd. [para. 37].

Human Rights Tribunal and Atomic Energy of Canada Ltd., Re - see Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re.

Eckervogt et al. v. British Columbia (Minister of Employment and Investment) (2004), 201 B.C.A.C. 302; 328 W.A.C. 302; 241 D.L.R.(4th) 685 (C.A.), consd. [para. 38].

Toronto (City) v. First Ontario Realty Corp. (2002), 59 O.R.(3d) 568 (Sup. Ct.), refd to. [para. 40].

Smith v. Toronto (City) (2005), 197 O.A.C. 136 (Div. Ct.), refd to. [para. 40].

Vincent v. Degasperis (2005), 200 O.A.C. 392 (Div. Ct.), refd to. [para. 40].

Toronto (City) v. Alcohol and Gaming Commission (Ont.) et al. (2005), 203 O.A.C. 166 (Div. Ct.), refd to. [para. 41].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, consd. [paras. 56, 130].

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, consd. [para. 63].

G.W.L. Properties Ltd. et al. v. Grace (W.R.) & Co. of Canada Ltd. et al. (No. 2) (1992), 21 B.C.A.C. 167; 37 W.A.C. 167; 74 B.C.L.R.(2d) 283 (C.A.), consd. [para. 65].

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [1998] 3 F.C. 3; 141 F.T.R. 109 (T.D.), consd. [para. 65].

Samson Indian Band v. Canada - see Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

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. 130].

Byers v. Pentex Print Master Industries Inc. et al. (2003), 167 O.A.C. 159; 62 O.R.(3d) 647 (C.A.), refd to. [para. 136].

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. 138, footnote 2].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2004), vol. 3, para. 11:77 [para. 35].

Canadian Judicial Council, Ethical Principles for Judges (1998), generally [para. 133]; Commentary A.2 [para. 133].

Canadian Judicial Council, Report of the Flynn Inquiry Committee (Flynn Report) (December 12, 2002), para. 59 [para. 134].

de Smith, Stanley Alexander, Woolf, Harry, and Jowell, Jeffrey L., Judicial Review of Administrative Action (5th Ed. 1995), p. 542 [para. 35].

Flynn Report - see Canadian Judicial Council, Report of the Flynn Inquiry Committee.

Lester, Geoffrey, Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure (2001), 24 Adv. Q. 326, pp. 338, 339 [para. 138].

Perell, Paul, The Disqualification of Judges and Judgments (2004), 29 Adv. Q., p. 107 [para. 112].

Counsel:

Brian Gover and Patricia MacLean, for the applicant;

Earl A. Cherniak Q.C., and Cynthia B. Kuehl, for the respondent, City of Toronto;

James W. Harbell and Patrick G. Duffy, for the respondent, Toronto Transit Commission.

This motion was heard on October 25 and 26, 2005, by Matlow, Greer and E. Macdonald, JJ., of the Ontario Divisional Court. The decision of the Divisional Court was released on November 3, 2005 and the following reasons were filed:

Matlow, J. - see paragraphs 1 to 118;

Greer and E. Macdonald, JJ. - see paragraphs 119 to 139.