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To Recuse or Not to Recuse, That is the Question…

On May 11, 2020, our firm successfully argued the dismissal of a motion seeking the recusal of the Honourable Madam Justice Dietrich as the presiding judge over two applications that are currently being heard together on the Toronto Estates List: one application is with respect to the administration of an estate (the “Estate Application”) which I will not address here; and the other application is proceeding under the Substitute Decision Act (the “POA Application”) which is also not addressed.

On May 25, 2020, the Honourable Madam Justice Dietrich issued reasons in an Endorsement denying the request for her recusal. These reasons are unreported at this time, you can read a copy of Justice Dietrich’s said Endorsement here.

The Recusal Motion

The grounds for the recusal motion, as set out by the moving party in his motion materials, were that Justice Dietrich allegedly made comments in the course of a case conference which demonstrated bias or a reasonable apprehension of bias in her mind with respect to the applicant’s credibility.

The Endorsement of Justice Dietrich dismissing the recusal motion succinctly outlined the facts of each of the underlying applications, and in particular, those alleged comments which underpinned the allegation of bias or reasonable apprehension of bias by the moving party. Since the Estate Application and POA Application are still proceeding before the court, we leave the reader to review the facts as set out by Justice Dietrich in her said Endorsement.

The Law of Apprehension or Reasonable Apprehension of Bias

The Supreme Court of Canada has reliably held that the test which a judge must consider and answer in deciding whether to recuse themselves on the grounds of bias or reasonable apprehension of bias is the following:

Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly?[1]

This test contains a two-fold objective element:

  1. the person considering the alleged bias must be reasonable; and,
  2. the apprehension of bias must also be reasonable in the circumstances of the case.[2]

To unpack the elements of this test further, case law explains that a “reasonable person” is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging.[3] As for the notion of “bias”, an allegation is to be evidenced by a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial.[4]

Litigants must be aware that the threshold to prove bias is high. The Ontario Court of Appeal has held that in cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of “judicial impartiality”.[5]

It is important to note that the principle of judicial impartiality is enshrined in the Oath of Office, which is taken by every judicial or officer of a court in Ontario in accordance with section 80 of the Courts of Justice Act. As such, the ONCA has declared that for a judge to step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.[6]


Although the case law suggests that these kinds of recusal motions are not commonly addressed in estates matters, I hope that this article will in any event serve as a useful primer to the reader on the law of bias or reasonable apprehension of bias.

Most importantly, I hope to highlight by way of this article the importance that the legislature and the courts have placed on the bright line principal of judicial impartiality; as such principle underpins the oath of office, and in effect, the administration of justice.

I close by repeating the words of the Honourable Mister Justice Perell from one of his many decision in the case of Fontaine v Canada (Attorney General: http://canlii.ca/t/hpqpj. [7] Justice Perell explained that allegations which call into question the court’s impartiality and its integrity, such as allegations of bias or reasonable apprehension of bias, “diminish public confidence in the court’s supervision” and “may possibly be contemptuous”.

[1] Yukon Francophone School Board, Education Area No. 23 v Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 SCR 282, at paras 20-21.

[2] R v S (RD), [1997] 3 SCR 484, at para 111.

[3] Duca Financial Services Credit Union Ltd v Smith, 2016 ONSC 6289, OJ No. 5202, at para 18; Rogerson v Havergal, 2020 ONSC 2164, at para 31.

[4] Ibid at para 58.

[5] Bailey v Barbour, 2012 ONCA 325 (CanLII), at para 25.

[6] Beard Winter LLP v Shekdar, 2016 ONCA 493 (CanLII), at para.

[7] Fontaine v Canada (Attorney General), 2018 ONSC 357 (CanLII), at para 4.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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