Farmer v. Hirtle

Farmer v. Hirtle

The adjudicator declined to recuse because the moving parties failed to meet the high objective threshold for a reasonable apprehension of bias; the partnership with counsel who acted in prior proceedings, without evidence of improper conduct or a realistic likelihood of partiality or embarrassment, is insufficient to displace the presumption of impartiality and does not warrant recusal.

Citation
2014 NSSM 82
Parties
Claimant/respondent on Recusal Motion: Lloyd George Farmer; Claimant/respondent on Recusal Motion: Charlotte Rose Farmer; Defendant / Moving Party (solicitor): David R. Hirtle / Hirtle Legal Services Inc.; Defendant / Moving Party (solicitor): Allen C. Fownes / Fownes Law Offices Inc.
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
3 November 2014
Procedural Posture
Taxation of Contingency Fee Accounts / Preliminary Recusal Motion
Outcome
Recusal motion dismissed; adjudicator will continue to preside and the taxation will proceed
Legal Topics
Recusal, Reasonable Apprehension of Bias, Contingency Fee Taxation, Conflict of Interest, Judicial Impartiality
Source Language
English
Civil Procedure Professional Regulation of Lawyers Costs and Taxation Judicial Conduct Recusal Reasonable Apprehension of Bias Contingency Fee Taxation Conflict of Interest +1 more

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Parties

Lloyd George Farmer

Claimant/respondent on Recusal Motion

Charlotte Rose Farmer

Claimant/respondent on Recusal Motion

David R. Hirtle / Hirtle Legal Services Inc.

Defendant / Moving Party (solicitor)

Allen C. Fownes / Fownes Law Offices Inc.

Defendant / Moving Party (solicitor)

Procedural Posture

Taxation of Contingency Fee Accounts / Preliminary Recusal Motion

Legal Issues

  1. 1 Whether the adjudicator must recuse because of partnership with counsel (Wendy J. Johnston, Q.C.) who acted in the underlying proceedings
  2. 2 Whether a reasonable and informed observer would apprehend bias or lack of impartiality
  3. 3 Whether the possibility that the partner could be called as a witness or cause embarrassment requires recusal

Ratio Decidendi

The adjudicator declined to recuse because the moving parties failed to meet the high objective threshold for a reasonable apprehension of bias; the partnership with counsel who acted in prior proceedings, without evidence of improper conduct or a realistic likelihood of partiality or embarrassment, is insufficient to displace the presumption of impartiality and does not warrant recusal.

Court Disposition

Recusal motion dismissed; adjudicator will continue to preside and the taxation will proceed

Orders

  • Recusal motion declined
  • Taxation to proceed subject to scheduling