Rando v Scott is a decision from the Ontario Court of Appeal on the issue of judicial bias. In this case Justice Patterson had been a partner in a law firm that had initially acted for a party one the action was commenced some twelve years previously (Justice Patterson was appointed to the Bench two years after the action was commenced). It was commonly accepted between the parties that Justice Patterson had not hand in the proceedings and no knowledge of the proceedings. A motion for Justice Patterson's recusal was heard and dismissed by Justice Patterson - the applicant and her counsel subsequently left Court and, as a result, were deemed to have abandoned the proceedings. After that Justice Patterson recollected and advised counsel that the party had done estate planning work for members of his firm when he was a lawyer.
The Court of Appeal noted that the rule in Martin Estate would have prohibited a lawyer who had been a partner in the firm who drafted pleadings to then act of another party. The reason for this is that there was a presumption of disclosure of confidential information. However for members of the judiciary there is a presumption of judicial impartiality that must be rebutted before recusal is necessary.
The decision cites the decision of the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259 (dealing with Justice Binnie and his tenure at the Dept of Justice) as standing for the proposition that a judge can have some prior level of participation in a proceeding and still not be disqualified from participating in the hearing.
One cannot help but feel that this case is one where hard facts make bad law. Wewaykum arises from a situation in which Justice Binnie, as an ADM, may have been involved in plotting strategy but probably was functioning more as a bureaucrat than counsel. Therefore it was quite reasonable to hinge the decision upon the fact that he was not counsel in this case. To extend that proposition to the point that says a partner in a law firm that drafted pleadings can then proceed to hear the case is a little strange. It seems bizarre to say that while a person is a lawyer the court will presume presume that s/he is privy to information regarding the file but on the day of appointment as a judge it will presume that s/he is totally unaware of the file.
The Court also noted that the Applicant took a big risk walking out of Court and I agree. Nothing would have stopped them from carrying on with the Trial (particularly where the recusal application was only brought at the beginning of the Trial) and appealing the motion if the Trial was lost.
