McWhirter v. Shankle

McWhirter v. Shankle

The applicant failed to meet the high objective threshold for reasonable apprehension of bias; an informed reasonable person, apprised of the facts and the presumption of judicial impartiality, would not conclude the adjudicator was biased or had prejudged the matter; therefore recusal is not warranted and the motion is dismissed.

Citation
2013 NSSM 28
Parties
Appellant (applicant): Jason McWhirter; Respondent: Andrew Shankle
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
26 August 2013
Procedural Posture
Residential Tenancies Appeal (small Claims Court) / Preliminary Motion to Recuse (motion Hearing)
Outcome
Motion to recuse dismissed; adjudicator will continue to preside over the appeal
Legal Topics
Recusal, Reasonable Apprehension of Bias, Adjournment, Natural Justice, Res Judicata/consistency
Source Language
English
Administrative Law Civil Procedure Residential Tenancies Judicial Conduct/recusal Recusal Reasonable Apprehension of Bias Adjournment Natural Justice +1 more

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Parties

Jason McWhirter

Appellant (applicant)

Andrew Shankle

Respondent

Procedural Posture

Residential Tenancies Appeal (small Claims Court) / Preliminary Motion to Recuse (motion Hearing)

Legal Issues

  1. 1 Whether the adjudicator should recuse for reasonable apprehension of bias
  2. 2 Proper application of the objective reasonable‑person test for apprehension of bias
  3. 3 Whether past adverse rulings or courtroom demeanor establish bias

Ratio Decidendi

The applicant failed to meet the high objective threshold for reasonable apprehension of bias; an informed reasonable person, apprised of the facts and the presumption of judicial impartiality, would not conclude the adjudicator was biased or had prejudged the matter; therefore recusal is not warranted and the motion is dismissed.

Court Disposition

Motion to recuse dismissed; adjudicator will continue to preside over the appeal

Orders

  • Motion to recuse dismissed
  • Applicant's pending appeal scheduled to proceed before Gavin Giles on September 6, 2013 at 11:00 (subject to appeal or stay)