T-2022-89
Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and The Samson Indian Band and Nation (Applicants) (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada and The Minister of Indian Affairs and Northern Development and The Minister of Finance (Respondents) (Defendants)
T-1254-92
Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of the members of the Ermineskin Indian Band and Nation (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada and Minister of Indian Affairs and Northern Development and Minister of Finance (Defendants)
Indexed as: Samson Indian Nation and Bandv. Canada (T.D.)
Trial Division, Teitelbaum J."Calgary, October 21; Ottawa, December 8, 1997.
Judges and Courts — Application to recuse Teitelbaum J. from hearing these cases — Associate Chief Justice (ACJ) assigning Campbell J. to hear trial, but removing him when Campbell J. raising issue of friendship with Band members — Plaintiffs requesting ACJ not participate in assignment of new Trial Judge while complaint pending before Canadian Judicial Council alleging discrimination against them by ACJ — Committee of three judges recommending Teitelbaum J. as Trial Judge — Test for reasonable apprehension of bias, disqualification — (1) Manner in which decided Campbell J. should not be Trial Judge not raising reasonable apprehension of bias — Within ACJ's jurisdiction to designate trial judge — Irrelevant to issue of reasonable apprehension of bias of Teitelbaum J. — (2) No reasonable apprehension of bias in manner of appointment of Teitelbaum J. — Federal Court Act, s. 15(2) providing ACJ shall make all arrangements for trials — Neither requiring personal performance nor prohibiting delegation of duties — S. 6(3) requiring performance of ACJ's duties by senior judge not applicable — ACJ not participating in selection of trial judge at plaintiffs' request — (3) Previous comments relating to issue not giving rise to reasonable apprehension of bias — Earlier cases in which Teitelbaum J. deciding issues appealed — FCA pronouncements binding in all future cases where same issue raised — (4) Submission that knowing individuals involved in governing country, or of having been member or fund raiser for political party giving rise to reasonable apprehension of bias, outrageous — Also irrelevant to issue of reasonable apprehension of bias — Being fundraiser, friend of Prime Minister not bar to appointment to superior court — (5) Formal application to recuse in open court not giving rise to reasonable apprehension of bias — (6) That Teitelbaum J. deciding application for own recusal not giving rise to reasonable apprehension of bias — Otherwise mere making of allegations would taint process, force disqualification of judge.
This was an application to have Teitelbaum J. disqualify himself from hearing the trial of these two cases. The Associate Chief Justice (ACJ) had assigned Campbell J. to hear the trial, but after Campbell J. himself, on at least two occasions, raised the issue of his friendship with three Samson Band members, it was decided that he should not be the Trial Judge. As a result of statements attributed the ACJ that he would not assign a newly appointed Aboriginal judge to hear an Aboriginal case as such a judge might find it uncomfortable hearing such a case, the Samson Indian Band filed a complaint of discrimination against the ACJ with the Canadian Judicial Council and requested that the ACJ not assign the trial judge while the complaint was pending. The ACJ agreed, and a committee of three senior judges, the composition of which remained a secret, selected Teitelbaum J. as the Trial Judge. The applicants' submission was that the removal of Campbell J. as Trial Judge and the process followed for that purpose breached the principles of natural justice. They further argued that Teitelbaum J.'s relationships with named politicians and bureaucrats and the Progressive Conservative Party raised a reasonable apprehension of bias. Also, in two other cases, Teitelbaum J. had expressed his views on and made comments respecting the Indian Act, self-government, trust and fiduciary obligations, limitations of actions, the maturity of Indian bands, the implied dependence of Indians as clinging to mother's apron, with the Crown impliedly being the mother, and awarded solicitor-client costs against the Band. Those views, comments, determinations and perspectives were said to give rise to a reasonable apprehension of bias with respect to the pre-determination of crucial issues.
The issues were whether: (1) the manner in which it was decided that Campbell J. would not be the Trial Judge; (2) the manner of the appointment of Teitelbaum J. as Trial Judge; (3) Teitelbaum J.'s past words and actions in other cases involving Aboriginals; (4) Teitelbaum J.'s past relationships with specific individuals, and the Progressive Conservative Party of Canada; (5) the procedure used for recusal; and (6) the fact that Teitelbaum J. heard and decided an application for his own recusal, gave rise to a reasonable apprehension of bias
Held, the application should be dismissed.
The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. That test is "what would an informed person, viewing the matter realistically and practically"and having thought the matter through"conclude." There must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, would favour one side unfairly.
The following circumstances would typically disqualify a judge: kinship, friendship, partisanship, particular professional or business relationship with one of the parties, animosity towards someone interested, predetermined mind as to the issue involved. A decision to disqualify should be exercised sparingly and only in the most clear and exceptional case. In cases where the test for bias is not satisfied, the judge will continue to sit on the trial to its conclusion.
(1) The process whereby it was decided that Campbell J. no longer be the Trial Judge did not raise a reasonable apprehension of bias. The Supreme Court of Canada indicated what it thought of this argument when it refused a remand or stay of execution of the ACJ's "decision" that Campbell J. not be the Trial Judge. It is, and always was, within the ACJ's jurisdiction to designate which judge is to be the "trial judge" in any particular case. Until a judge is seized with a case, the ACJ may decide who will hear any particular case. As well, the entire issue of how it was decided that Campbell J. should not be the Trial Judge was totally irrelevant to the issue of reasonable apprehension of bias on Teitelbaum J.'s part.
(2) The plaintiffs submitted that Teitelbaum J.'s assignment as Trial Judge was invalid because the procedure followed for his assignment was contrary to the provisions of the Federal Court Act and that since the Federal Court is a statutory Court with no inherent jurisdiction, the "procedure" as stated in the Act must be followed to designate a trial judge. Federal Court Act , subsection 15(2) provides that the ACJ shall make all the arrangements for trials. It does not say that the ACJ must personally make these arrangements, nor does it state that he is prevented from delegating his jurisdiction to make such arrangements. In matters of process, a "liberal" or "wide" interpretation must be given to subsection 15(2). Subsection 6(3) provides that where the office of the Associate Chief Justice is vacant or he is absent from Canada or is unable or unwilling to act, the powers and duties of the Associate Chief Justice shall be exercised and performed by the senior judge who is in Canada and is able and willing to act. None of the enumerated situations exist herein. After the plaintiffs had filed a complaint with the Canadian Judicial Council regarding the ACJ's comments, the plaintiffs requested that the ACJ not participate in the selection of a trial judge. The ACJ agreed and decided to seek the advice of a committee of three "senior" judges, which recommended that Teitelbaum J. be selected to hear the present cases. As the ACJ had agreed not to participate in the selection of the judge, he accepted the recommendation of the committee. There can be no reasonable apprehension of bias caused by the process used.
(3) The Court of Appeal will decide whether Teitelbaum J.'s interpretation of various sections of the Indian Act with regard to the issue of self-government, trust and fiduciary obligations, limitations of actions and any other issue raised in the two other judgments was correct, and he will be legally bound, in all future matters where the same issue is raised, to follow the judgment of the Court of Appeal. If what a judge says as to the interpretation of the law can give rise to a reasonable apprehension of bias, judges would never be permitted to sit on a case involving an issue about which they had previously decided. It is not bias, nor does it give rise to a reasonable apprehension of bias, if a judge had previously made comments relating to an issue or interpreted the law as it relates to a particular issue. A judge in deciding issues put before him or her in another case, and which issues may be similar or the same as the issues he or she is to try, will not be recused on the basis of a reasonable apprehension of bias for having previously decided the issues.
(4) The submission that knowing certain individuals involved in the governing of Canada or of having been a member of or fund raiser for a legal federal political party gives rise to a reasonable apprehension of bias was outrageous and totally irrelevant to the issue of a reasonable apprehension of bias. Being a political fund raiser or an acquaintance or friend of a prime minister of Canada is not a bar to appointment to a superior court in Canada.
(5) The present procedure for recusal, wherein the plaintiffs made a formal application for recusal, heard in "open court", did not give rise to a reasonable apprehension of bias.
(6) For Teitelbaum J. to disqualify himself simply because he heard the recusal application would establish a dangerous precedent. It would invite unhappy litigants to make whatever allegations they wished in support of an application for a judge to disqualify himself. If the allegations failed to provide a proper foundation for a finding of bias or a reasonable apprehension of bias, the mere making of the allegations would, by their very nature, taint the process and force the disqualification of the judge. No case law was cited suggesting that a judge other than the one sought to be disqualified should hear the application.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], preamble, s. 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 3, 6(3), 15(2).
Federal Court Rules, C.R.C., c. 663, R. 491(11) (as enacted by SOR/90-846, s. 20).
Indian Act, R.S.C., 1985, c. I-5.
cases judicially considered
applied:
Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.); Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R. (2d) 257; 20 C.P.C. (2d) 27 (C.A.); affg [1993] B.C.J. No. 2965 (S.C.) (QL).
considered:
Energy Probe v. Atomic Energy Control Board, [1984] 2 F.C. 227; (1984), 8 D.L.R. (4th) 735; 5 Admin. L.R. 165; 13 C.E.L.R. 66; 43 C.P.C. 13 (T.D.); affd [1985] 1 F.C. 563; (1984), 15 D.L.R. (4th) 48; 11 Admin. L.R. 287; 13 C.E.L.R. 162; 56 N.R. 135 (C.A.); G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1992), 74 B.C.L.R. (2d) 283; 37 W.A.C. 167 (C.A.); Blanchard v. Canadian Paper Workers' Union, Local 263 et al. (1991), 113 N.B.R. (2d) 344; 285 A.P.R. 344; 49 C.P.C. (2d) 151 (C.A.); Mattson v. ALC Airlift Canada Inc. (1993), 18 C.P.C. (3d) 310 (B.C.S.C.); R. v. S. (R.D.), [1977] 3 S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 118 C.C.C. (3d) 353; 218 N.R. 1; Samson Indian Band v. Canada, [1997] S.C.C.A. No. 291 (QL); Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1992), 98 D.L.R. (4th) 762; 64 O.A.C. 321 (Ont. Gen. Div.); Canadian National Railways v. Canadian Human Rights Commission (1985), 64 N.R. 312 (F.C.A.); Morgentaler v. The Queen (1984), 29 McGill L.J. 369.
referred to:
Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (F.C.T.D.); Canadian Pacific Ltd. v. Matsqui Indian Band, [1996] 3 F.C. 373; (1996), 134 D.L.R. (4th) 555; [1997] 2 C.N.L.R. 16; 111 F.T.R. 161 (T.D.).
authors cited
Friedland, Martin L. A Place Apart: Judicial Independence and Accountability in Canada. Ottawa: Canadian Judicial Council, 1995.
APPLICATION for recusal of the Trial Judge in these proceedings on the ground of reasonable apprehension of bias. Application dismissed.
counsel:
James A. O'Reilly, Edward H. Molstad, Q.C., Marco S. Poretti and Priscilla E. S. Kennedy for plaintiff Victor Buffalo.
Marvin R. V. Storrow, Q.C., Joni Paulus and Maria A. Morellato for plaintiff J. Ermineskin.
Alan D. MacLeod, Q.C., W. Clark Hunter, Thomas E. Valentine, Mary E. Comeau and Wendy K. Johnston for defendants.
solicitors:
O'Reilly & Associates, Montréal, and Parlee McLaws, Edmonton, for plaintiff Victor Buffalo.
Blake, Cassels & Graydon, Vancouver, for plaintiff J. Ermineskin.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order rendered in English by
Teitelbaum J.: This is a notice of motion filed into the Federal Court of Canada Registry at Calgary, Alberta, October 16, 1997 by the plaintiffs, Chief Victor Buffalo and the Samson Indian Band and Nation, for the following relief, as stated therein:
1. An Order declaring that the appointment of the trial judge in these actions is of no force and effect and, inter alia, contrary to the Federal Court Act, R.S.C. 1985, c. F-7, as am., ss. 3, 6(3) and 15(2) as well as the Charter of Rights and Freedoms s. 7 and the Constitution Act, 1867, preamble and s. 101;
2. An Order directing Mr. Justice Teitelbaum to disclose, or alternatively, the disclosure by Mr. Justice Teitelbaum of his relationships since 1956, including the nature and degree thereof, with the Honourable Brian Mulroney, former Prime Minister of Canada; Bernard Roy, former Principal Secretary to the Honourable Brian Mulroney; with Peter G. White, Secretary to the Honourable Brian Mulroney from 1983 to 1986; with Senator W. David Angus, former Treasurer of the Conservative Party of Canada, with the Honourable W. Warren Allmand, a former classmate and former Minister of Indian Affairs and Northern Development; with G. Ian Watson, apparently a former classmate and former Chairman of the Standing Committee of Indian Affairs, and with the following persons who attended McGill Faculty of Law at the same time as Mr. Justice Teitelbaum: former Cabinet Minister Donald J. Johnston; P. Michael Pitfield, former Secretary to the Privy Council; and Yves L. Fortier, Q.C., former Ambassador to the United Nations;
3. An Order directing Mr. Justice Teitelbaum to disclose, or alternatively the disclosure by Mr. Justice Teitelbaum of his relationships since 1956, including the nature and degree thereof, with any persons he met or knew who were or are:
(a) Members of the House of Commons or the Senate, including all Committees thereof;
(b) Members of the Federal Government;
(c) Employees of the Federal Government;
(d) Persons on the staff of, or who acted as an advisor to, any Prime Minister or any Minister of the Federal Government;
(e) Persons working for or associated with the Federal Liberal Party or the Federal Conservative Party;
4. An Order directing Mr. Justice Teitelbaum to disclose, or alternatively the disclosure by Mr. Justice Teitelbaum of his activities relating to the Conservative Party of Canada, including any role as a fund raiser and any other political activities;
5. An Order that Mr. Justice Teitelbaum recuse himself as Trial Judge in these proceedings, or alternatively, the recusal by Mr. Justice Teitelbaum as Trial Judge in these proceedings.
The grounds for this application, as listed in the notice of motion, are numerous. The plaintiffs list 19 grounds. To better understand this notice of motion, I believe it necessary to list, within the body of this decision, all 19 grounds.
The grounds, as listed in the notice of motion, are:
1. The Federal Court Act, s. 15(2) requires the Associate Chief Justice to make arrangements for judges to hold courts. Section 6(3) provides that the senior judge shall exercise the powers of the Associate Chief Justice when the Associate Chief Justice is unable to act;
2. The Associate Chief Justice is unable or unwilling to act in respect of the selection of a trial judge in these proceedings. Consequently the powers of the Associate Chief Judge in respect to the selection of Mr. Justice Teitelbaum as the designated trial judge should have been exercised by the senior judge;
3. The case manager herein, MacKay, J. indicated on a number of occasions that the power had been exercised by a "Committee" of three Justices contrary to section 6(3) of the Federal Court Act ;
4. The composition of the "Committee" remains a secret contrary to section 3 of the Federal Court Act , the Charter of Rights and Freedoms, section 7, and to the Constitution Act, 1867, inter alia, the preamble and section 101. However, even if the appointment process had been open and publicly disclosed, such "Committee" appointment is still contrary to the Federal Court Act . There is no authority for such a "Committee" under the provisions of the Federal Court Act let alone any authority for a "Star Chamber" type of procedure;
5. In respect to disclosure Orders and Relief requested, the case law, particularly that dealing with apprehension of bias, the Rule of Law and the fundamental principle of an open court system embodied in the Charter of Rights and Freedoms, section 7, the Constitution Act, 1867, preamble and section 101 thereof, and in the Federal Court Act, section 3, require disclosure by the Trial Judge of all past and present relationships and activities of the Trial Judge related to the matters at issue in the action;
6. The case law further requires that the test for apprehension of bias involves the obtaining of information to which an applicant in practice may have no or little access. Only the decision-maker concerned may be aware of certain facts. The principles of natural justice and procedural fairness thus require disclosure to the applicants of all relevant facts. This was the procedure recently adopted by Madam Justice McGillis when faced with an issue of apprehension of bias;
7. The removal of Campbell, J. as the Trial Judge herein and the process followed for that purpose breach the principles of natural justice and procedural fairness, have undermined the confidence of Samson Plaintiffs in the Court and its selection process and give rise, in the circumstances of these proceedings, to a reasonable apprehension of institutional bias on the part of the Federal Court of Canada in respect to the designation of the Trial Judge;
8. The different procedure used by the Crown and accepted by the Associate Chief Justice and the procedure for recusal stipulated in the Order of MacKay, J. of October 10, 1997 further raise an apprehension of bias based on unequal treatment of litigants as between the Crown and aboriginal parties and breaches Samson Plaintiffs' constitutional rights under sections 7, 15 and 25 of the Charter of Rights and Freedoms;
9. The particular circumstances of these proceedings, including the Court's concurrence with the Crown's refusal to accept the case manager, MacKay, J., as the Trial Judge and the secret selection process for the designation of Mr. Justice Teitelbaum as the Trial Judge subsequent to the withdrawal of the Associate Chief Justice in July, 1997, from further participation in the selection of the trial judge at the request of Samson Plaintiffs, raises a reasonable apprehension of institutional bias or partiality in the particular circumstances of these proceedings;
10. The secret selection process for the designation of Mr. Justice Teitelbaum as the Trial Judge itself raises a reasonable apprehension of bias;
11. The bases for the apprehension of bias referred to above are compounded and reinforced by the judgment of the Federal Court of Appeal in Sawridge Indian Band v. Canada (sub. nom. Twinn) where that Court found that there was a reasonable apprehension of bias on the part of the Trial Judge, a senior judge of this Court. The proceedings in which bias was found involved, inter alia, all the members of the Ermineskin Band, who are Plaintiffs in T-1254-92, which proceedings raise similar issues to the proceedings instituted by Samson and which are proceeding jointly with the Samson proceedings;
12. Furthermore, the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobias [sic] dated September 25, 1997, and the public perception reflected in the October 2, 1997 editorial in the Globe and Mail, to the effect that many of the judges of the Federal Court of Canada were members of Parliament, Cabinet Ministers, officials of the Federal Government or had prominent involvement with a federal political party, increase the perception of a reasonable apprehension of bias in respect to the designated trial judge, particularly in light of the grounds set forth below;
13. Samson Plaintiffs do not have full knowledge of the nature and degree of the relationships of the designated trial judge with the persons mentioned above in paragraphs 2 and 3 of the Orders or Relief sought of the applications, and in paragraph 6 hereof. However, these proceedings deal with issues which date back to prior to Treaty No. 6 of 1876 and deal in an important and significant manner with the actions and omissions of the Crown and Government of Canada, including employees and advisers to the Government, the Prime Minister and Ministers thereof, during that period. The questions in the proceedings directly involve the 1970's and the 1980's and include the entire period of time of the government presided over by the Honourable Brian Mulroney;
14. The Samson Proceedings involve, inter alia, constitutional, trust and treaty obligations of the Crown respecting the management of natural resources held in trust by the Crown, royalty moneys paid in trust to the Crown, the Indian Act throughout the period mentioned in the preceding paragraph, the constitutionality of provisions of the Indian Act, regulations under the Indian Act, the Indian Oil and Gas Act and regulations thereunder, the Financial Administration Act, the nature and scope of treaty rights and benefits, the rights of Samson Plaintiffs to programs and services under Treaty No. 6 and otherwise, and claims for substantial monetary damages. The major claims with respect to damages relate to the period from 1969 to date;
15. The acquaintances of Mr. Justice Teitelbaum with persons involved on behalf of the Crown related to the issues in this action, and, subject to full disclosure including the activities of Mr. Justice Teitelbaum for the Conservative Party of Canada give rise to a reasonable apprehension of bias in respect of Mr. Justice Teitelbaum as the Trial Judge;
16. In addition, the Trial Judge, in Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1996), 111 F.T.R. 161 and in Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1, set forth his views on and made comments respecting the Indian Act, self-government, trust and fiduciary obligations, limitations of actions, the maturity of Indian bands, the implied dependence of Indians as clinging to mother's apron, with the Crown impliedly being the mother, and awarded solicitor client costs against the Wewayakai Band, in those proceedings. These views, comments, determinations and perspectives of the designated trial judge individually and collectively give rise to a reasonable bias in respect to the designated Trial Judge in respect to the pre-determination of crucial issues in the proceedings herein;
17. That in all these circumstances, a reasonable and right-minded person, applying himself to the question and obtaining thereon the required information, viewing the matter realistically and practically"and having thought the matter through"would have a reasonable apprehension of bias in respect of Mr. Justice Teitelbaum as the Trial Judge in these proceedings;
18. Furthermore, in the light of all the circumstances, Samson Plaintiffs, who are members of a particular aboriginal community with its racial dynamics, including the existence of a history of discrimination against aboriginal peoples and knowing of developments to date relating to the trial judge in respect to these proceedings, have an even greater reasonable apprehension of bias;
19. A reasonable apprehension of bias is incompatible with fundamental justice as required by section 7 of the Charter of Rights and Freedoms and to the Rule of Law pursuant to the Constitution Act, 1867 and Charter preambles and section 101 and requires Mr. Justice Teitelbaum to recuse himself.
As evidence for the present application, the plaintiffs Samson Indian Band and Nation et al. have filed the affidavits of Phil Fontaine, National Chief of the Assembly of First Nations, Elijah Harper, a Treaty Indian who was Chief of the Red Sucker Lake First Nation and he remains "an Honorary Chief of the Red Sucker Lake First Nation", Victor Buffalo, Acting Chief of the Samson Indian Band and Nation, Florence Buffalo, Chief of the Samson Indian Band and Nation, Ovide Mercredi, former National Grand Chief and the affidavit of C. Allan Donovan, a barrister and solicitor who was one of the solicitors of record of the Wewayakum (Campbell River) Indian Band v. Canada and Wewayakai (Cape Mudge) Indian Band and the trial of Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (F.C.T.D.) (presided over by myself). This judgment is now in appeal before the Federal Court of Appeal.
Only one set of reasons was issued for both cases and in it I dismissed the action of the Wewayakai (Cape Mudge) Indian Band against the Crown with costs on a solicitor-client basis for the reasons stated in the judgment. The Court of Appeal will decide, upon hearing the appeal if, for the reasons I gave in the judgment, I was correct in using my discretion in the manner that I did. What is not in the affidavit of Mr. Donovan is that the counterclaim made by the Wewayakai Indian Band against the Wewayakum (Campbell River) Indian Band was dismissed without costs nor that the Wewayakum Indian Band's claim against the Crown was also dismissed without costs.
Counsel for the plaintiffs Chief John Ermineskin et al. in case T-1254-92 filed the affidavit of William Roberts, a fisherman and "a Hereditary Chief of the Wewayakum Indian Band" (Campbell River Band) who states that in the cases involving Cape Mudge Indian Band and Campbell River Indian Band and the Crown he was a witness. He states:
5. During my testimony, I was extensively and aggressively examined by the trial Judge, Mr. Justice Teitelbaum. The tone of the examination was such that I had the strong impression that the trial Judge was attempting to entrap me. I felt as though I, or someone in my family, was being accused of some serious wrongdoing in matters going back almost 50 years.
6. Due to the intensity of the examination and the remarks made by the trial Judge, I suffered greatly from stress and anxiety and as a result I was ill for several days afterwards.
7. I seriously considered reporting the trial Judge to the Judicial Counsel because of the treatment I received at his hands and I discussed this at the time with counsel. I felt that the attitude of the Judge was completely uncalled for and especially intimidating to a person not conversant with legal procedures or court cases.
William Roberts fails to state what were the remarks that were made that caused him to suffer greatly from stress and anxiety.
I have reviewed the transcript of the questions put to the witness during the trial. I am satisfied that I did not try to "entrap" Mr. Roberts but only to try to understand his evidence. In order to do so, I felt it necessary to ask many questions of this witness. Furthermore, to be a witness at a trial can cause stress and anxiety. This is perfectly normal. It has nothing to do with remarks made or not made.
Counsel also filed the affidavit of Gerry Ermineskin, elected Chief of the Ermineskin Indian Band.
With the exception of C. Allan Donovan and William Roberts, all affiants filed exhibits with their affidavits. One of these exhibits, Exhibit "U" to the affidavit of Victor Buffalo is a list of 266 cases decided by me and which, according to Victor Buffalo or, I should say, "Samson's solicitors", were decided 74.1% of the time in favour of the "Crown" and, I assume, this gives Acting Chief Victor Buffalo a reasonable apprehension of bias of my impartiality. I have not gone through this list in any detail as I am satisfied that this allegation is a meaningless one. I decide each case before me on the evidence that is placed before me and on the applicable law. I do not count the percentage of cases decided for or against a party and then make a decision.
I do not intend to refute each and every allegation made by all the affiants. The grounds in the notice of motion reflect what the affiants state in their affidavits. The affiants speak of the process of the Court deciding that Mr. Justice Campbell should not be the Trial judge, the "method" of how I was designated to be the Trial Judge and my "words and actions" arising from the cases of Canadian Pacific Ltd. v. Matsqui Indian Band , [1996] 3 F.C. 373 (T.D.) and in the Wewayakum Indian Band cases (supra).
I believe it important that paragraphs 44, 45 and 46 of the affidavit of Victor Buffalo be reproduced in this decision and answered.
44. THAT I am advised by Samson's solicitors and do verily believe that when the former Prime Minister of Canada, The Honourable Brian Mulroney was asked recently as to whether he knew Mr. Justice Teitelbaum, he responded "Sure I know Max". As a result of this communication I do verily believe that Mr. Justice Teitelbaum is an acquaintance of the former Prime Minister of Canada, The Honourable Brian Mulroney. The Honourable Brian Mulroney was the Prime Minister and a member of the Cabinet when Mr. Justice Teitelbaum was appointed to the Federal Court in 1985. The Honourable Brian Mulroney was also Prime Minister between September 17th, 1984 and June 25th, 1993, a period during which many claims against the Crown arose in this action.
45. THAT I am advised by Samson's solicitors and do verily believe that Mr. Justice Teitelbaum attended at McGill Faculty of Law at the same time as The Honourable W. Warren Allmand, a former Minister of Indian Affairs and Northern Development, G. Ian Watson, a former Chair of the Standing Committee of Indian Affairs, The Honourable Donald J. Johnson, a former Cabinet Minister and P. Michael Pitfield, a former Secretary to the Privy Council and Yves Fortier Q.C., a former Ambassador to the United Nations. Now shown to me and marked as Exhibit "T" to this my Affidavit is a true copy of a list of the class of 1957 and 1958 of the McGill Faculty of Law.
46. THAT I am advised by Samson's counsel and do verily believe that they have made enquiries and have been advised that Mr. Justice Teitelbaum was active in fundraising for the Conservative Party of Canada prior to his appointment to the Federal Court.
These allegations are only made by Acting Chief Victor Buffalo and, as he states, he obtained this information from "Samson's solicitors" who, as it was stated to me is Mr. James O'Reilly who, it appears from what he stated to me, is a friend of the Honourable Brian Mulroney knowing him since 1964.
I would first state that the allegation of whether I know the Honourable Brian Mulroney or any other of the persons mentioned in the above paragraphs is totally immaterial to the issue of a reasonable apprehension of bias. I was asked to disclose my relationship with the individuals mentioned in paragraphs 44 and 45 of the affidavit and my involvement with fund raising for the Conservative Party of Canada prior to my appointment as this would suggest to Acting Chief Victor Buffalo, or at least to his counsel, a reasonable apprehension of bias. I believe that what plaintiffs are really attempting to say is since I know Brian Mulroney I must be recused in the same way Justice Campbell was reassigned because he knows Roy Louis, Cathy Louis and Wilson Okimaw. This is comparing apples and oranges. Roy and Cathy Louis and Wilson Okimaw are members of the Samson Band and Nation. The persons mentioned in paragraphs 44 and 45 of Victor Buffalo's affidavit have no interest in the outcome of these two cases. The Louis' certainly have a direct interest in the outcome of the case. Roy Louis is an active member of the Samson Indian Band and Nation and Cathy Louis is a close friend of Mr. Justice Campbell.
I stated that I was an "acquaintance" of the Honourable Brian Mulroney as my association with him was not on a social basis. The Honourable Warren Allmand, a former Liberal Minister of Indian Affairs and Northern Development, and G. Ian Watson attended Law School at McGill University with me and were classmates. I confirmed that I had heard of Donald J. Johnson and that I may have said hello to him on one or two occasions and that I never had the pleasure of meeting P. Michael Pitfield. I do know Yves Fortier, Q.C.
After asking counsel for plaintiffs their definition of "fundraising", I indicated that I never raised funds for the Conservative Party of Canada. I added that it should be considered an honour to serve one's country in a political office and to know someone who has served his country as a Member of Parliament. In my opinion, this fact cannot give rise to a reasonable apprehension of bias.
As I have stated, the allegations found in paragraphs 44, 45 and 46 of Victor Buffalo's affidavit are, in addition to being irrelevant, totally meaningless for the purpose of the present application.
ISSUES
After a reading of the notice of motion and a reading of the affidavit evidence, together with the attached exhibits, I am satisfied that the following are the issues in the determination of whether or not a reasonable apprehension of bias can legally exist from the facts of this case.
(1) The manner in which it was decided that Mr. Justice Campbell would not be the Trial Judge.
(2) The manner of my appointment as Trial Judge.
(3) Whether my past "words and actions" in the Cape Mudge, Campbell River Indian Band cases and in the Canadian Pacific Ltd. v. Matsqui Indian Band case gives rise to a reasonable apprehension of bias.
(4) Whether my past relationships mentioned by Acting Chief Victor Buffalo with certain specific individuals and with the Conservative Party of Canada is sufficient so as to conclude that a reasonable apprehension of bias exists.
(5) The issue of procedure used for recusal.
(6) A sixth issue arose at the hearing when counsel for the Ermineskin Indian Band and Nation et al. suggested that a reasonable apprehension of bias arises from the mere fact that I heard and decided an application for my own recusal.
THE LAW
The Test for Reasonable Apprehension of Bias
The genesis for the modern formulation of the test is contained in the dissenting judgment of de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at page 394 (hereinafter Committee for Justice):
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically"and having thought the matter through"conclude".
There is some question about the degree of knowledge which this reasonable person possesses. In Committee for Justice, de Grandpré J. referred to an "informed person" at page 394 as being the "reasonable" person.
An oft-quoted passage on the subject is by Lord Denning in Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.), at page 310:
. . . in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand [cited cases omitted]. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough [cited cases omitted]. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased." [Underlining is mine.]
Although the situations where a judge should be disqualified necessarily depend on the level of generality one chooses, there are several situations which seem to crop up on a regular basis. In Energy Probe v. Atomic Energy Control Board, [1985] 1 F.C. 563 (C.A.), affg [1984] 2 F.C. 227 (T.D.), Marceau J.A. suggested at page 580 that the following circumstances would typically disqualify a judge:
. . . kinship, friendship, partisanship, particular professional or business relationship with one of the parties, animosity towards someone interested, predetermined mind as to the issue involved, etc.
Several cases have sounded a warning that a judge should not easily accept an application to recuse. Chief Justice McEachern made the following observation in G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1992), 74 B.C.L.R. (2d) 283 (C.A.), at page 287:
A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quite as simple as that because care must always be taken to ensure that there is no appearance of unfairness. That, however, does not permit the court to yield to every angry objection that is voiced about the conduct of litigation. We hear so much angry objection these days that we must be careful to insure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or at any price.
On a similar note, the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1993), 83 B.C.L.R. (2d) 257 (C.A.), stated the following, at page 261:
As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge's mind a lack of professionalism.
. . .
Bias does not equate with what might be found in the end to be an unsatisfactory trial. [Underlining is mine.]
Thus, as Hoyt J.A. stated in Blanchard v. Canadian Paper Workers' Union, Local 263 et al. (1991), 113 N.B.R. (2d) 344 (C.A.), a decision to disqualify should "only be exercised sparingly and in the most clear and exceptional cases" (at page 351).
In cases where the test for bias is not satisfied, the Court in Mattson v. ALC Airlift Canada Inc. (1993), 18 C.P.C. (3d) 310 (B.C.S.C.) noted that the judge will continue to sit on the trial to its conclusion despite unhappiness on the part of counsel or parties over the conduct of the trial.
As well, in the case of R. v. S. (R.D.), [1997] 3 S.C.R. 484, at pages 530-532:
(iv) The Test for Finding a Reasonable Apprehension of Bias
When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Idziak, supra, at p. 660. It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. See Newfoundland Telephone, supra, at p. 636.
It was in this context that Lord Hewart C.J. articulated the famous maxim: "[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done": The King v. Sussex Justices, Ex parte McCarthy , [1924] 1 K.B. 256, at p. 259. The Crown suggested that this maxim provided a separate ground for review of Judge Sparks' decision, and implied that the threshold for appellate intervention is lower when reviewing a decision for "appearance of justice" than for "appearance of bias". This submission cannot be sustained. The Sussex Justices case involved an allegation of bias. The requirement that justice should be seen to be done simply means that the person alleging bias does not have to prove actual bias. The Crown can only succeed if Judge Sparks' reasons give rise to a reasonable apprehension of bias.
The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394.
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information . . . . [The] test is "what would an informed person, viewing the matter realistically and practically" and having thought the matter through"conclude . . . ."
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick , [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
. . .
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.
DISCUSSION
As I have stated, I see the present application as an application that I disqualify myself from hearing the trial of the above cases set to start sometime in the near future. As it was forecast to take anywhere from one to two years, or more, in Calgary, it was decided that a judge should be assigned to hear the trial. As a result, the Associate Chief Justice, as it is within his jurisdiction to do so, decided that Mr. Justice Campbell should be the assigned judge for the hearing.
(1) The Assignment of Mr. Justice Campbell as Trial Judge
I do not believe it necessary for the purposes of this decision to recite in detail what steps were taken in the assignment of Mr. Justice Campbell as Trial Judge, nor how it was decided by the Associate Chief Justice (hereinafter ACJ) that Mr. Justice Campbell should not be the assigned Trial Judge.
To see what plaintiffs allege took place, one can read the affidavits of Chief Florence Buffalo and the written submissions of the plaintiffs for the present application.
After it was decided by the ACJ that Mr. Justice Campbell would no longer be the assigned Trial Judge, he informed plaintiffs' counsel of that decision by telephone. The ACJ is alleged to have commented, in the course of this conversation, that as a result of Mr. Justice Campbell knowing three persons who are or may be members of the plaintiff Samson Indian Band, he decided Mr. Justice Campbell should not sit as the Trial Judge. It is my understanding that the reassignment of Mr. Justice Campbell came about as a result of Mr. Justice Campbell taking the initiative in raising his relationship with three members of the Samson Indian Band and Nation, all of whom have a direct interest in the outcome of the case. Judges do not normally raise such an issue unless they are concerned that discovery of the relationship, after the commencement of the hearing, might raise a reasonable apprehension of bias. Mr. Justice Campbell raised the issue on at least two occasions. This, I am satisfied, clearly shows his concern that his friendship with these individuals could raise a reasonable apprehension of bias.
It is alleged by plaintiffs' counsel that the ACJ stated he would not assign a newly appointed Aboriginal judge to hear an Aboriginal case as he was of the view that such a judge might find it uncomfortable hearing such a case.
As a result, the Samson Indian Band filed a complaint of discrimination against the ACJ with the Canadian Judicial Council and requested that the ACJ no longer assign the trial judge while the complaint with the Judicial Council was pending. It must be noted that it is the plaintiffs who specifically asked that the ACJ no longer assign the trial judge.
The plaintiffs attempted to appeal the ACJ's "decision" to the Federal Court of Appeal. The Chief Justice issued a direction stating that the issue of the ACJ deciding that Mr. Justice Campbell would no longer be the Trial Judge was not a "judgment" or "order" subject to appeal.
The entire matter was brought by the plaintiffs before the Supreme Court of Canada in an application for leave to appeal, for certiorari and remand, for a stay of execution or other relief and for abridging the legal delays. In the said application for leave, plaintiffs, in a most detailed application recite the entire factual situation of how and why the "decision" of the ACJ to "remove" Mr. Justice Campbell as Trial Judge was invalid and, I say, why they are now claiming that the process raises a reasonable apprehension of bias.
On June 26, 1997 [Samson Indian Band v. Canada, [1997] S.C.C.A. No. 291 (QL)] the Supreme Court of Canada issued the following decision:
The application for an expedited hearing of these applications for leave to appeal are granted.
The applications for remand, for stay of execution, for certiorari and for an oral hearing of the applications for leave are dismissed.
The applications for leave to appeal are dismissed.
It is obvious that the Supreme Court of Canada did not accept the submissions of the plaintiffs. What is of particular interest is that the Court refused to order a remand or a stay of execution of the ACJ's "decision" that Mr. Justice Campbell not be the Trial Judge.
As I have said, according to the affidavit evidence of the plaintiffs, they allege the process of the Federal Court Trial Division wherein it was decided that Mr. Justice Campbell no longer be the Trial Judge raises a reasonable apprehension of bias.
I, with respect, do not agree. Nor did the Supreme Court of Canada agree with this allegation. It is and always was within the jurisdiction of the ACJ to designate which judge is to be "the trial judge" in any particular case. I am satisfied that until a judge is seized with a case, the ACJ may decide who will hear any particular case.
As well, the entire issue of how it was decided that Mr. Justice Campbell should no longer be the Trial Judge is totally irrelevant to the issue of reasonable apprehension of bias on my part.
(2) The Assignment of Justice Max M. Teitelbaum as Trial Judge
Plaintiffs allege that the manner of my assignment as Trial Judge is invalid and thus raises a reasonable apprehension of bias. Briefly stated, the plaintiffs submit that my assignment as Trial Judge is invalid because the procedure followed for my assignment is contrary to the provisions of the Federal Court Act and that since the Federal Court is a statutory court with no inherent jurisdiction, the "procedure" as stated in the Act must be followed to designate a trial judge. The submission is, according to the present notice of motion, that my "appointment" is of no force and effect and, inter alia , contrary to the Federal Court Act, R.S.C., 1985, c. F-7 as amended, section 3, subsections 6(3) and 15(2) as well as the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], section 7 and the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]], preamble and section 101.
The grounds, as it relates to the above, are found in grounds numbered, I believe, 1, 2, 3, 4 and 5.
I do not intend to discuss the issue of the Canadian Charter of Rights and Freedoms, section 7 nor the Constitution Act, 1867. Neither the Charter nor the Constitution Act, 1867 are applicable.
Section 15 of the Federal Court Act states:
15. (1) Subject to the Rules, any judge of the Trial Division may sit and act at any time and at any place in Canada for the transaction of the business of the Court or any part thereof and, when he so sits or acts, he constitutes the Court.
(2) Subject to the Rules, all such arrangements as may be necessary or proper for the holding of courts, or otherwise for the transaction of business of the Trial Division, and the arrangements from time to time of judges to hold such courts or to transact such business, shall be made by the Associate Chief Justice.
(3) The trial of any matter in the Trial Division may, by order of the Court, take place partly at one place and partly at another.
Particular reference is made to subsection 15(2) where it is stated that the arrangements for trials are to be made by the Associate Chief Justice. It does not say that the Associate Chief Justice must personally make these arrangements nor does it state that he is prevented from delegating his jurisdiction to make such arrangements. In matters of process, a "liberal" or "wide" interpretation must be given to subsection 15(2) of the Federal Court Act .
Plaintiffs' counsel then refers to subsection 6(3) of the Federal Court Act. Subsection 6(3) states:
6. . . .
(3) Where the office of Chief Justice or of Associate Chief Justice is vacant, or the Chief Justice or the Associate Chief Justice is absent from Canada or is for any reason unable or unwilling to act, the powers and duties of the Chief Justice or the Associate Chief Justice shall be exercised and performed by the senior judge who is in Canada and is able and willing to act.
This subsection is only resorted to when the office of the ACJ is vacant (not the case), when the ACJ is absent from Canada (not the case), "or is for any reason unable or unwilling to act" (not the case).
There is no suggestion that the ACJ's office was vacant nor that he was out of Canada. The suggestion is that the ACJ was unable and/or unwilling to act.
After plaintiffs had filed a complaint with the Canadian Judicial Council regarding the ACJ's comments, plaintiffs requested that the ACJ not take part in the selection of a trial judge. The ACJ, for his own reasons, agreed and decided to seek the advice of a committee of three "senior" judges. The committee of the three "senior" judges recommended that I be the judge selected to hear the present cases. In that the ACJ agreed not to take part in the selection of the judge, he accepted the recommendation of the committee that I be the judge assigned to hear the two cases.
I fail to understand the plaintiffs' submission that my assignment was done contrary to the Federal Court Act. I am satisfied there can be no reasonable apprehension of bias caused by the process used.
(3) My Past "Words and Actions" in Two Court Cases Give Rise to a Reasonable Apprehension of Bias.
The two cases which plaintiffs claim give rise to a reasonable apprehension of bias are Canadian Pacific Ltd. v. Matsqui Indian Band, [1996] 3 F.C. 373 (T.D.) and in Wewayakum (Campbell River) Indian Band v. Canada and Wewayakai (Cape Mudge) Indian Band and the case of the Wewayakum Indian Band v. Canada and Wewayakai Indian Band reported at (1995), 99 F.T.R. 1 (F.C.T.D.).
Both cases have been brought to the Federal Court of Appeal.
Grounds numbered 16 and 17 specifically refer to these two cases and why my words allegedly give a "reasonable person" a "reasonable" apprehension of bias.
It is of course obvious or, at least, it should be obvious to trained legal counsel that I am unable to respond as to the meaning of what I said in both judgments. What I say in those judgments are there to be read. It will be for the Court of Appeal to agree or disagree with my interpretation of various sections of the Indian Act [R.S.C., 1985, c. I-5], with regard to the issue of self-government, trust and fiduciary obligations, limitations of actions and any other issue raised in those two judgments.
Surely, counsel for the plaintiffs know that if I am wrong in what I state in those two judgments, the Court of Appeal will so state and that I am legally bound, in all future matters where the same issue is raised, to follow the judgment of the Court of Appeal or, for that matter, what the Supreme Court of Canada may say.
I believe it necessary to comment on the issue of solicitor-client costs awarded against the Wewayakai Indian Band. The reasons for my doing so are stated in the judgment before the Court of Appeal and the Court of Appeal will decide if I was correct in that judgment. I repeat, it is worthy to note that in the case of the Wewayakum Indian Band v. Canada and Wewayakai Indian Band, I dismissed the claims of the Wewayakum against the Crown and the Wewayakai Indian Band without costs and that the cross-claim made by the Wewayakai against the Wewayakum Indian Band without costs. It appears that Mr. C. Allan Donovan or the plaintiffs fail to make mention of this fact.
I would also make an observation with respect to the "implied dependence of Indians as clinging to mother's apron, with the Crown impliedly being the mother". Again, this case, Canadian Pacific Ltd. v. Matsqui Indian Band is before the Court of Appeal and it will be for the members of the Court of Appeal to interpret my remarks. I would only state that it is plaintiffs themselves who refer to the Indian Act as being paternalistic.
With due respect, I fail to see how what I say as to the interpretation of the law can give rise to a reasonable apprehension of bias. If this were the case I would never be permitted to sit on a case involving an issue about which I had previously decided. This, of course, would also apply to every other judge in Canada who has made a decision on a particular issue.
There is much jurisprudence that states that it is not bias nor does it give rise to a reasonable apprehension of bias if a judge had previously made comments relating to an issue or interpreted the law as it relates to a particular issue.
In Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1992), 98 D.L.R. (4th) 762 (Ont. Gen. Div.), the employer's counsel requested that one of the judges on the panel disqualify himself because he was a former Labour Relations Board chairman who had decided a case which involved an issue similar to the one presently before the Court. Counsel did not suggest that the Judge had any interest in the present proceedings. The motion was dismissed because there was no requirement to disqualify the Judge based merely on a prior position taken on some topic before being appointed to the judiciary. The Court added that even if the Judge had decided the issue as a judge, there still would not have been a reasonable apprehension of bias.
In Canadian National Railways v. Canadian Human Rights Commission (1985), 64 N.R. 312 (F.C.A.), the Court of Appeal refused to remove MacGuigan J. from the three-judge panel merely because he had expressed his opinion, in connection with another case, on a point of law which arose in the case at bar.
Finally, the statement of the Supreme Court of Canada in Morgentaler v. The Queen, 2 October 1974, S.C.C. motion No. 13504 (reproduced in (1984), 29 McGill L. J. 369, at pages 405-406) appears to have wide application:
All members of this Court, past and present, have, to a greater or lesser degree, before appointment to the Bench and to this Court, expressed views on questions which have legal connotations, and this has never been a disqualifying consideration.
I take the above cases to say that a judge, in deciding issues put before him or her in another case and which issues may be similar or the same as the issues he or she is to try will not be recused on the basis of a reasonable apprehension of bias for having previously decided the issues.
(4) My Past Relationships
I believe it is interesting to note that I am asked to disclose my relationship with various "political" individuals (ground number 2) as well as my relationship, since 1956, with members of the House of Commons or the Senate including all committees thereof, members of the federal government, employees of the federal government, persons on the staff of, or who acted as an advisor to any prime minister or any minister of the federal government and persons working for or associated with the federal Liberal or the federal Conservative Party.
It appears to be plaintiffs' belief or, at least, it is the belief of plaintiffs' counsel, that knowing certain individuals involved in the governing of Canada, either as prime minister or as a minister of the Crown or as a member of the House of Commons or of the Senate or of a committee thereof or of having been a member or fund raiser for a legal federal political party gives rise to a reasonable apprehension of bias.
My first comment is that this submission, in the manner it is stated in the notice of motion is outrageous and is totally irrelevant to the issue of a reasonable apprehension of bias.
I did disclose my relationship to the persons mentioned in ground number 2. I did state that I have never been a fund raiser for the federal Conservative Party. I also stated that it is not illegal to be a fund raiser nor, to the best of my knowledge, is being a fund raiser a bar to being appointed to a superior court in Canada. This, I believe, also applies to being an acquaintance or friend of a prime minister or minister of Canada.
In addition, Martin L. Friedland in A Place Apart: Judicial Independence and Accountability in Canada in a report prepared for the Canadian Judicial Council, states, at page 233:
There is, of course, nothing improper in appointing a person who had been involved in politics. Indeed, knowledge of the political process can be an advantage for a judge.
I see no merit to this submission made by plaintiffs.
(5) The Issue of Procedure Used for Recusal
The plaintiffs allege that the procedure for recusal wherein the plaintiffs were told to make a formal application for recusal, to be heard in "open court" gives rise to a reasonable apprehension of bias as this procedure was different from the "procedure" used by the Crown in its request involving Mr. Justice Campbell.
I must state that I fail to see how the "present procedure" raises a reasonable apprehension of bias. The plaintiffs were told that if they had "concerns" about me and because they refused to disclose what the concerns were, they should make a formal application to the Court. The plaintiffs took two and one-half days to make their submission. How it was decided that Mr. Justice Campbell no longer be the Trial Judge is totally immaterial to the issue of a reasonable apprehension of bias on my part. In addition, and as I have already said, with regard to Mr. Justice Campbell, it was Mr. Justice Campbell who raised the concern of his relationship with three persons who are members of the plaintiff band and nation and such disclosure by a judge usually constitutes an implied invitation to counsel to waive his or her concern. In this case, counsel for the Crown did not do so and expressed their concern by sending a letter, dated May 6, 1997, clearly detailing their concern.
This fact is very different from the concern expressed by plaintiffs' counsel about me. In fact, to the time that plaintiffs presented their application, the plaintiffs gave no reason for their concern. As a result, plaintiffs were asked to bring an application before the Court with supporting materials.
(6) Apprehension of Bias Arising from the Fact that I am Deciding the Reasonable Apprehension of Bias Issue.
I believe I can do no better than to quote the following:
OATH OF OFFICE
I, Max Mortimer Teitelbaum, do solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a Judge of the Federal Court of Canada.
So Help me God.
I swore to the above oath at Montréal, in the province of Quebec, on November 28, 1985. This is just more than 12 years of the date of the present hearing. I have, in the past 12 years, faithfully carried out the above responsibilities and trust. I intend to continue to do so.
I cannot conclude, after hearing the present application to disqualify myself, that my presiding over these two cases would be likely to raise in the mind of a reasonably informed person an apprehension of bias.
In the case of Middelkamp v. Fraser Valley Real Estate Board, [1993] B.C.J. No. 2965 (QL), in the Supreme Court, Boyd J. states [at paragraphs 24-25]:
Finally, Mr. Rankin has submitted that even if there are no grounds for disqualification I ought, nevertheless, to disqualify myself since it will now be impossible for me as the trial judge to hear the plaintiffs' case with fairness and impartiality. Mr. Rankin asks: " . . . could the reasonable observer expect the judge to remain impartial and independent while the person who uncovered this information is a litigant in a case before her?" This is what Mr. Cadman has called the Catch 22 argument.
I cannot accede to such an argument since to do so, in my view, would establish a very dangerous precedent in these courts. In effect, I would be inviting disgruntled, unhappy litigants or their counsel to make whatever allegations they wished, in support of an application for the judge to disqualify himself or herself. If the allegations failed to provide a proper foundation for a finding of bias or a reasonable apprehension of bias, the litigant could nevertheless take comfort in the knowledge that the mere making of the allegations would, by their very nature, taint the process and force the disqualification of the judge. This very danger was recognized by Chief Justice McEachern, C.J.B.C., in G.W.L. Properties Limited v. W.R. Grace & Company of Canada Ltd. (1992), 74 B.C.L.R. (2d) 283 (B.C.C.A.).
I agree with what Boyd J. states. I also take from this case that the judge against whom a disqualification application is made should hear the application for recusal. Counsel for the Ermineskin Band suggested I should not have heard the present application. He failed to submit any jurisprudence that suggests that a judge other than the one against whom the disqualification allegation is made should hear the application.
I have read all of the affidavit evidence filed. I have not commented on all of the exhibits filed as I believe it is not necessary to do so. I have also not commented on the issue raised by plaintiffs that Mr. Justice MacKay failed to follow subsection 491(11) [as enacted by SOR/90-846, s. 20] of the Federal Court Rules [C.R.C., c. 663] and, as a result, I must disqualify myself.
Rule 491. . . .
(11) Other than those matters agreed upon or directed in a pre-trial conference, all matters discussed in the pre-trial conference are confidential and without prejudice to the parties.
The allegation, as I understand it, is that Mr. Justice MacKay informed me of matters discussed in pre-trial conferences which were confidential. I will only state that this is an incorrect allegation as is evident from a memo dated October 16, 1997 sent to plaintiffs' counsel wherein he states "I conclude by noting that in my opinion I have communicated to Teitelbaum J. only information I consider necessary for his planning to assume his responsibilities as trial judge".
The application for my recusal (disqualification) is denied. I shall sit as Trial Judge for the trials in files T-2022-89 and T-1254-92 which have been joined for hearing.