Leahy v. Canada (Attorney General)

Leahy v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2024-01-17 Neutral citation 2024 FCA 15 File numbers A-159-23 Decision Content Date: 20240117 Docket: A-159-23 Citation: 2024 FCA 15 CORAM: WEBB J.A. RENNIE J.A. LOCKE J.A. BETWEEN: TIMOTHY E. LEAHY Appellant and THE ATTORNEY GENERAL OF CANADA Respondent Order delivered at Toronto, Ontario, on January 17, 2024. REASONS FOR ORDER BY: THE COURT Date: 20240117 Docket: A-159-23 Citation: 2024 FCA 15 CORAM: WEBB J.A. RENNIE J.A. LOCKE J.A. BETWEEN: TIMOTHY E. LEAHY Appellant and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR ORDER [1] The appellant moves for an order that Rennie J.A. recuse himself from this appeal. He says that Rennie J.A. is biased against him and cannot make a fair and impartial decision in respect of this appeal. He relies on three judgments Rennie J.A. rendered while a judge of the Federal Court. [2] A preliminary observation is in order. The language used by the appellant in his written submissions to the Court is entirely inappropriate and unacceptable in a court. It is replete with objectionable personal attacks, vitriol and intemperate language, which a less charitable panel may well have characterized as contempt. We have, nevertheless, set aside the offensive nature of the appellant’s submissions and focused on the substance of his argument. [3] The principles governing a recusal motion have been thoroughly canvassed in the decision of this Court in Collins v. Canada (Attorney General), 2024 FCA 5 [Collins]. We will not repeat them, save to emphasize that they govern our approach to this motion. [4] Once assigned to a matter, a judge cannot refuse the assignment or recuse, absent good legal cause. [5] One example of good legal cause is actual bias in favour of or against a side on all or part of the case. A judge with that mental state must recuse forthwith and refrain from being involved in it at all. [6] Another legal cause for recusal is if the judge is not actually biased but the circumstances are such that a reasonable, fully informed person, thinking the matter through, would conclude that it is more likely than not that a judge, whether consciously or unconsciously, would not decide the case fairly: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at 394. [7] As the Court observed in Collins, the two tests—one for actual bias, the other for apparent or apprehended bias—give voice to the fundamental principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. Sussex Justices, [1923] EWHC KB 1, [1924] 1 K.B. 256. [8] The judge against whom an allegation of actual bias is made, here Rennie J.A., is the only person who can confirm or deny the allegation. Thus, whether acting alone or on a panel, only that judge can decide the issue of actual bias. Where, as here, the Court is comprised of three judges on a panel and where the individual judge denies the allegation of actual bias, the appearance may nevertheless be such that the judge must recuse for reasons of fairness and to maintain the reputation of the Court and the public’s confidence in the administration of justice. As noted by the Court in Collins at paras. 10 and 11, due to the broader sweep of apparent or apprehended bias—an institutional rather than an individual concern—all three judges comprising the Court must consider and determine the issue. [9] There is a strong presumption that judges will obey their judicial oaths and act impartially. Unwarranted allegations of judicial bias can harm the administration of justice: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3. Alleging judicial bias is “a serious step that should not be undertaken lightly”: R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 133. [10] Thus, motions such as this should be brought only where there is a “real likelihood or probability of [actual or apparent] bias”, supported by “cogent evidence”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 at paras. 22 and 27. A wholly unwarranted motion should normally be met with an enhanced award of costs. (a) Actual bias [11] In this case, Rennie J.A. declares that he is not biased. He has never had nor has he developed an animus against the appellant. As for this appeal, he confirms that he is approaching it with an open, persuadable mind. He is and remains committed to reviewing the appellant’s written and oral submissions carefully in light of the facts and the applicable law. [12] Thus, Rennie J.A. rejects the appellant’s allegations of actual bias. (b) Apparent or apprehended bias [13] As for apparent or apprehended bias, we are all of the view that the appellant’s allegations and submissions have no merit. [14] The appellant has referred to three immigration matters that Rennie J.A. decided where the appellant was counsel. The appellant, importantly, was not a party, and in one of the cases, Rennie J.A. decided in favour of the appellant’s client. Nevertheless, he contends that the decisions reflect an animus on the part of Rennie J.A. in the matters involving him on which Rennie J.A. has sat. He alleges that Rennie J.A. has consistently ruled against him in various matters. We note that the appellant did not mention that Rennie J.A. was part of a panel of this Court that allowed the appellant’s appeal in part: Leahy v. Canada (Justice), 2017 FCA 246, 287 A.C.W.S. (3d) 456. [15] Again, averting to Collins, one or more previous rulings by a judge against a litigant—indeed, the overall win-loss record of a litigant before a judge—cannot, by themselves, demonstrate apparent or apprehended bias. A reasonable, fully informed person appreciates that a judge may rule against a party on a number of occasions. And that person also appreciates that a losing streak may be justified by the facts and the law of the individual cases. See Canada (Attorney General) v. Yodjeu, 2019 FCA 178, 307 A.C.W.S. (3d) 611 at para. 15; Oberlander v. Canada (Attorney General), 2019 FCA 64 at para. 10; Abi-Mansour v. Canada (Passport Canada), 2016 FCA 5, 481 N.R. 145 at para. 14; and R. v. Perciballi (2001), 146 O.A.C. 1, 54 O.R. (3d) 346 at para. 21, aff’d 2002 SCC 51 at para. 1. [16] These principles apply with greater force here where the appellant was not a party. Indeed, in one of the cases said to justify a finding of bias, the appellant was neither a party nor counsel. The appellant has not pointed to anything to substantiate an allegation of bias and his complaint is, in essence, about the legal result. [17] We therefore dismiss the motion. “Wyman W. Webb” J.A. "Donald J. Rennie" J.A. "George R. Locke" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-159-23 STYLE OF CAUSE: TIMOTHY E. LEAHY v. THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Toronto, Ontario REASONS FOR ORDER BY: THE COURT APPEARANCES: Timothy E. Leahy For The Applicant (ON HIS OWN BEHALF) James Stuckey Elizabeth Koudys For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent