April 6, 2009

A Reasonable Counsel “Test”? The Ontario Divisional Court where interactions with counsel found allegation of perceived bias

Filed under: 1 — ruleswatch @ 8:08 pm

In Ontario (Commissioner, Provincial Police) v. MacDonald [2009] O.J. No. 970, a decision by the Court, the Ontario Divisional Court has confronted – and disposed of – an appearance of bias claim in a highly fractious proceeding between, ultimately, the Commissioner of the O.P.P, Julian Fantino, on the one side, and a senior officer of the force who had been charged with Police Service Act offences, on the other.

To do so, the Court arguably conjured an apparent new, “reasonable counsel,” test to be applied where allegations of bias are built upon interactions* between the hearing authority and counsel for the complaining party.

In this case, the disciplinary hearing had been far from smooth. The Court’s decision set the context: “The hearing has gone on for fifteen days, nine of which have been taken up by the motion [by the respondent to enter a stay on the grounds of abuse of process]. There have been no hearing days on the merits.” [para 3]. (The Court did not note that there had already been a failed stay application in Divisional Court, Motions Court and a full panel hearing of the resulting review request.)

It then dealt with the complained of interaction as follows:

37 The fairest view of the exchange, …, is that at the 5:00 p.m. end of a day in which it appeared little progress with the hearing had been made, the Adjudicator expressed his frustration that a great deal of time had been wasted. Judges and counsel know that such things happen from time to time. Hearings sometimes take unexpected turns and that, compounded by the complexity of the law, can result in the expenditure of more time than expected. ..The Court carried on. “Reasonable counsel would perceive the comment about a waste of time to be an admonition to them to try to avoid falling into the trap of such time-consuming complications unnecessarily. Judges give such admonitions to counsel often enough that experienced counsel should know that this goes with the nature of the work and is not to be taken personally.”

The decision is worthy of a read.

As for the parties, it remains to be seen what will happen next.


*Comments the hearing adjudicator had made which Commissioner Fantino argued betrayed bias against his counsel and his investigation appear in the following [“Mr. Gover” is OPP counsel]: THE ADJUDICATOR: I know you’re not playing games, but I want information, and today we wasted a lot of time today. It wasn’t necessary. It was not necessary. Sometimes, we get so academic, we lose sight of the real issue, and I think that happened today…Let’s get common sense in the area. Forget about the academic part for some extent, because sometimes, you can get so tied up you lose sight of what the issue really is, and as far as I’m concerned, the issue is get the information before me. Argument time is going to come. Place your arguments before me and I’ll make my decision, but to horse around the way we have today, it doesn’t make me happy. MR. GOVER: I understand that, Sir, and I hope that because I’m the one on my feet currently that you don’t feel that this is solely or otherwise my responsibility. … MR. GOVER: I’ll do that, and I hope you understand that we’ve acted in good faith and tried to produce the — THE ADJUDICATOR: I don’t doubt it a bit, but sometimes, trying to act in good faith you get so tied up academically you forge about the real issue, and we all know what the real issue is here. Just get the information tome and I’ll make a decision. Don’t try and keep it from me or from the defence. All right. That’s all I’m saying today and we’re back here October 14th. …


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