Simon's Megalomaniacal Legal Resources

Bias - Judge's Prior Professional Involvement

. McLean v. Trevisan et al

In McLean v. Trevisan et al (Ont Divisional Ct, 2025) the Divisional Court dismissed an appellate motion for a recusal order for bias against the single case management judge of the court, here in a LAT SABS context:

[9] The Canadian Judicial Counsel’s Ethical Principles for Judges provides that:

Judges should be sensitive to the existence of relationships which, to a reasonable and informed person, would give rise to reasonable apprehension of lack of impartiality. In particular, judges will face this issue in relation to cases involving former clients, members of the judge’s former law firm or lawyers from the government department or legal aid office in which the judge practiced before appointment. Each case is unique and the apprehension of bias should be assessed in light of all the circumstances. The following general guidelines may be helpful: (i) judges who were involved in private practice should not sit on any case in which the judge or, to their knowledge, the judge’s former firm was directly involved in any capacity before the judge was appointed to office; (ii) judges who practised law in government service or legal aid should not sit on cases in which they had any involvement prior to their appointment; (iii) judges should not sit on a matter in which the judge’s former law firm is involved until after a ‘cooling off period’, often established by local law or tradition, of between two and five years; and, (iv) judges should not sit on a matter in which the judge’s former law firm is involved for at least as long as there continues to be a financial relationship between the judge and the law firm.

[10] Similar facts arose in Rando Drugs Ltd. v. Scott, 2007 ONCA 553, 86 O.R. (3d) 641, wherein a motion was brought for an order that Patterson J. recuse himself from the matter because:

(a) The judge was a partner of the firm that had once represented one of the defendants by counterclaim. Although the judge had never been involved in the case and his former firm no longer acted for the defendant, the plaintiff by counterclaim asked the judge to recuse himself; and

(b) The judge had an association with one of the defendants by counterclaim because the defendant provided estate accounting services to his former firm while he was at the firm and for the estate of his wife’s father in the 1990s.

[11] At the time of the motion, Patterson J. had been a judge for six years. Justice Patterson dismissed the motion. The Court of Appeal at para. 10 cites Patterson J.’s statement in the motion decision:

I cannot even see how there could be an apprehension of bias based on the facts. There has been a time period passed that is certainly well in excess of any two-, three-year guideline. The distinction that this took place when I was a partner does not elevate it to being something that suddenly becomes timeless, in my opinion.

[12] The Court of Appeal upheld the decision. The Court of Appeal stated that the three-year rule applies to when a judge should hear cases involving his or her former firm or former client in an unrelated matter, as in this case: see para. 23. I appreciate that the ‘three-year rule’ is only a guideline, and each case must be determined on the particular facts of that case.

[13] The Court of Appeal concluded:

[32] In my view, a reasonable person, viewing the matter realistically would conclude that the trial judge could deal fairly and impartially with this case. I take this view principally because of the long passage of time and the trial judge's lack of involvement in or knowledge of the case when the Wilson Walker firm had carriage. In these circumstances it cannot be reasonably contended that the trial judge could not remain impartial in the case. The mere fact that his name appears on the letterhead of some correspondence from over a decade ago would not lead a reasonable person to believe that he would either consciously or unconsciously favour his former firm's former client. It is simply not realistic to think that a judge would throw off his mantle of impartiality, ignore his oath of office and favour a client -- about whom he knew nothing -- of a firm that he left six years earlier and that no longer acts for the client, in a case involving events from over a decade ago.

[14] The Applicant reiterates that the passage of time is a consideration when he states at para. 100 of his affidavit:

100. The following statement of Laskin C.J., in Committee for Justice and Liberty v. National Energy Board, supra, at p. 388:

“Lawyers who have been appointed to the Bench have been known to refrain from sitting on cases involving former clients, even where they have not had any part in the case, until a reasonable period of time has passed. A fortiori, they would not sit in any case in which they played any part at any stage of the case. This would apply, for example, even if they had drawn up or had a hand in the statement of claim or statement of defence and nothing else (see: paragraph 80 of Weykaum).

[15] I have not been a partner at Epstein Cole LLP in over six years. While Mr. Papadimtriopoulos may have been a client at the firm while I was there, there is no suggestion that he was my client or that I had any communication or contact with him. There is no suggestion that I had any relationship or contact with Mr. Papadimtriopoulos after I left the firm in 2018.

[16] Mr. Papadimtriopoulos is not a party to these proceedings. He is not counsel of record. At most, his association with this case is that he works with the current counsel of record for SNIC.

[17] I find that a reasonable person, viewing the matter realistically would conclude that I could deal fairly and impartially with this case, given the passage of time, my lack of involvement with Mr. Papadimtriopoulos and the peripheral role that Mr. Papadimtripoulos plays in these proceedings.

. Rebello v. Bank of Nova Scotia

In Rebello v. Bank of Nova Scotia (Ont CA, 2023) the Court of Appeal considered a bias fact scenario:

[2] The appellant raises a reasonable apprehension of bias argument based on the motion judge’s partnership in the law firm representing the respondent. That partnership ended at least 15 years before the motion judge heard this claim. In our view, that very tenuous connection provides no basis for a finding of a reasonable apprehension of bias.