Feb 11, 2020

Appeal Court Says No Bias, But Allows Appeal

Willms v. Willms, 2020 BCCA 51 (CanLII)

It will inevitably come up in your law practice. You finish a hearing, get the Reasons, experience the disappointment, and then, while formulating the grounds of appeal, consider an appeal based on a reasonable apprehension of bias. Was the judge sneering, did he sternly caution counsel, did your client feel he or she was misunderstood and unfairly criticized? A constellation of “second guessing” of what occurred at the hearing might lead counsel to seriously consider this ground of appeal.

But I urge you to take this step very carefully. In my 30 year trial career only once did I make this argument before a chambers judge who promptly dismissed my application. At that time I researched the law extensively and remarkably found that in 99% of cases, the alleged “offending” judge declined to recuse him or herself and the matter proceeded. Whether the argument is more successful at the appellate level is doubtful.

In Willms v. Willms 2020 BCCA 51 the Court of Appeal considered an allegation of bias and the appellant’s complaints about the chambers judge, which included the following:

1. Counsel was “harshly” reprimanded by the chambers judge when he submitted that “the respondent had intentionally deposed statements that were deceiving the court”. The judge responded saying: “Don’t call somebody a fraud based on this kind of material. And don’t suggest they’re deceiving the court. It’s a very serious allegation – – could end somebody in jail. … And a conclusion like that based on assumptions is on very, very thin ice indeed. Don’t do it again.”

The Court of Appeal noted that the affidavit said to be deceptive had not been tested, was not the subject of cross-examination, and the respondent’s evidence was not contradicted. After that exchange, counsel changed his approach calling the respondent’s evidence “inconsistent”. The Court of Appeal indicated that the transcript showed the judge’s respectful attention to the balance of counsel’s submissions.

2. Later there was an exchange between counsel and the judge following completed submissions on the respondent’s application to increase spousal support. It was then that appellant’s counsel began argument regarding his application to reduce spousal support. The judge remarked that all the necessary submissions had already been made on the topic of spousal support. Counsel advised the court that he was also seeking to terminate spousal support. The judge asked him where that could be found in the pleadings and a discussion ensued regarding the “fuzzy” reference to it in the material. Nonetheless, the court stated it would take the submissions into account.

3. Counsel also argued that he was repeatedly interrupted by the judge, that the judge dismissed his arguments without proper consideration, and failed to hear all of his submissions, which taken collectively, was evidence of bias.

The appeal court dismissed Mr. Willms appeal on this ground, finding there was nothing in the exchanges that gave rise to a reasonable apprehension of bias if viewed by an impartial observer cognizant of the matters that preceded the dialogue between counsel and the judge, and accepting at face value the judge’s assurance he would take counsel’s submissions into account. Further, the appeal court said that the appellant’s concerns that certain issues were not addressed by the judge could not be blamed on him, as counsel failed to make submissions on those points.

However, Mr. Willms did persuade the appeal court to address a miscalculation in the amount of spousal support and varied the retroactive award from August 2016 to March 2018, the date his former spouse brought her application for an increase in support.