COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Siemens v. Howard, |
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2018 BCCA 197 |
Date: 20180518
Docket: CA44404
Between:
Lucas Siemens
Appellant
(Plaintiff)
And
Graham Alexander Howard
Respondent
(Defendant)
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Before: |
The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Goepel The Honourable Madam Justice Fenlon |
On appeal from: An order of the Supreme Court of British Columbia, dated April 10, 2017 (Siemens v. Howard, 2017 BCSC 587, Chilliwack Docket S027624).
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Counsel for the Appellant: |
A.N. MacKay |
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Counsel for the Respondent: |
J. Fiddick |
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Place and Date of Hearing: |
Vancouver, British Columbia January 18, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia May 18, 2018 |
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Written Reasons by: |
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The Honourable Madam Justice Fenlon |
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Concurred in by: |
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The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Goepel |
Summary:
Mr. Siemens alleged that his neighbour, Mr. Howard, acted as his agent in purchasing rural property. He sought a declaration that Mr. Howard held the land in trust for his benefit. The trial judge dismissed the claim on the basis that no implied agency relationship existed. On appeal Mr. Siemens argued the judge (1) misapplied the test for implied agency, (2) overlooked essential evidence, (3) improperly relied on hearsay, and (4) conducted the trial in a way that gave rise to a reasonable apprehension of bias. Held: appeal dismissed. The judge applied the correct test to the facts as she found them and did not err in assessing the evidence. The exchanges between the judge and counsel during submissions were forceful and direct, but did not raise a reasonable apprehension of bias.
Reasons for Judgment of the Honourable Madam Justice Fenlon:
[1] Lucas Siemens appeals the dismissal of his claim to a constructive trust over land owned by the respondent Graham Howard. He submits Mr. Howard bought the land for him under an implied agency agreement.
[2] The parties live across the road from one another in a rural area of Abbotsford. Mr. Howard is a licensed realtor and Mr. Siemens is a businessman and chicken farmer. On December 26, 2013, Mr. Siemens crossed the road from his farm to speak to Mr. Howard. He mentioned he wanted to buy some property in the area as he had purchased additional chicken quota and needed land to build another chicken barn. Mr. Howard told Mr. Siemens that he had been looking into acquiring about 19 acres of land that abutted his property. It was in the Agricultural Land Reserve and known locally as “Old Riverside”. The land was not listed for sale, but Mr. Howard knew the owners and thought they might be interested in selling. He told Mr. Siemens that his plan was to adjust the lot lines to expand his original 9.5 acre property to ten acres and suggested the remaining 18 acres or so might suit Mr. Siemens. Mr. Siemens expressed interest, and Mr. Howard told him he would keep him informed (at paras. 7–18).
[3] The two men stayed in touch over the next two months by text and telephone. During that time Mr. Howard made a number of unsuccessful offers to the owners of Old Riverside, always in his own name. He made a final successful offer of $2,030,000 on February 14, 2014. On February 17, Mr. Howard informed Mr. Siemens that he had purchased the property but would not be in position to assign the accepted offer to Mr. Siemens because there was a short closing date and Mr. Howard could not adjust the lot lines in time. Mr. Howard told Mr. Siemens that another person was also interested in the surplus land. Following that call, Mr. Siemens sent the following message to Mr. Howard:
[78] … Graham this is our deal as we have discussed it should not even be a decision to flip it or sell to the other friend. You said to me you would assign it.
Litigation ensued.
[4] The judge began by noting the parties’ conflicting versions of key events. She reviewed their evidence on the initial conversation of December 26, 2013, saying:
[15] According to Mr. Siemens, it occurred to him that he should talk to Mr. Howard about finding a property, since Mr. Howard was a realtor. Mr. Siemens explained that he thought Mr. Howard was well-connected in real estate and development, and that he might know something that no one else knew. On cross-examination, Mr. Siemens went even further and said that he specifically went over to talk about hiring Mr. Howard as his realtor. …
[16] As Mr. Siemens recalled, he told Mr. Howard that he was looking for some property and asked Mr. Howard if Mr. Howard knew anyone that was interested in selling or knew of any good deals or anything close to the Home Farm. As Mr. Siemens recalled, Mr. Howard told him that, yes, Mr. Howard had the “perfect property” for Mr. Siemens, namely Old Riverside. As Mr. Siemens recalled, Mr. Howard told him that the property was right behind Mr. Howard’s property, and that he thought that the owners wanted to sell. He also recalled that Mr. Howard mentioned that, a few years ago, the owners wanted around $2 million for it, although Mr. Howard was not sure where they were currently. According to Mr. Siemens, he walked away from the discussion on December 26 thinking that Mr. Howard was his agent.
…
[20] According to Mr. Howard, during the discussion on December 26, he told Mr. Siemens about his personal plans for Old Riverside, to adjust the lot lines on his property and, if that were done prior to closing the purchase and sale, he would be willing to assign the contract to purchase to Mr. Siemens. According to Mr. Howard, he also told Mr. Siemens that if he was not able to adjust the lot lines before closing, he would complete the purchase himself and potentially sell the remainder of Old Riverside afterwards. According to Mr. Howard, he told Mr. Siemens that, as of December 26, he had nothing he could sell or assign, but that he had an open line of communications with one of Old Riverside’s owners (that was Mr. Hooge), and the outcome of the negotiations would dictate whether there was something to either sell or assign. As Mr. Howard recalled, he also told Mr. Siemens that he would contact the owners to see whether they were still open to selling, and that there were four people in the owner group.
[21] According to Mr. Howard, he told Mr. Siemens that he (Mr. Howard) would be writing an offer in his name, and that if there were an opportunity to participate after he had followed through with his vision for Old Riverside, then there would be an opportunity for Mr. Siemens. As Mr. Howard recalled, Mr. Siemens was fine with that. According to Mr. Howard, he agreed to keep Mr. Siemens informed, because Mr. Siemens seemed sincere in his desire to buy some property, and it was never Mr. Howard’s goal to keep the whole of Old Riverside, since he did not need the entire property.
[22] Mr. Siemens’ recollection of this part of the discussion on December 26 is quite different. According to Mr. Siemens, Mr. Howard said nothing about his plans for Old Riverside. According to Mr. Siemens, Mr. Howard first mentioned the topic of acquiring for himself part (a half-acre) of Old Riverside only much later, on February 13, 2014, just before the final offer to purchase Old Riverside was made.
[Emphasis added.]
[5] The judge began her assessment of the evidence by addressing the credibility and reliability of the parties who were the only witnesses at trial. Of Mr. Howard she said:
[104] During cross-examination, Mr. Howard often struggled to understand questions, and required questions to be repeated or rephrased. Sometimes the questions were complex and difficult to understand, and benefitted from being rephrased and simplified. However, often the questions were straightforward, and Mr. Howard’s approach made him appear at times evasive and defensive. His evidence at trial was not always completely consistent with the evidence he had given at his examination for discovery, when this was put to him on cross-examination. However, generally, the inconsistencies were minor and inconsequential. Sometimes discovery evidence was used simply to refresh Mr. Howard’s memory, rather than to impeach.
[6] Turning to Mr. Siemens’ evidence, the judge concluded she had to “treat his evidence with considerable caution” (at para. 114), and gave four main reasons for that conclusion. First, she found Mr. Siemens had misstated material facts in an affidavit sworn in support of a without notice application to prevent Mr. Howard from selling Old Riverside. That affidavit was sworn about four weeks after the events attested to (at para. 107). Second, she found Mr. Siemens’ evidence that Mr. Howard did not express an intention to acquire half an acre of Old Riverside for himself until February 13, 2014, to be implausible and inconsistent with offers Mr. Howard presented to the owners which all included a term stating he intended to retain a portion of the property and sell or assign the remainder (at para. 109). Third, she found Mr. Siemens’ explanation for his use of the phrase “this is our deal” in the February 17 text message to Mr. Howard implausible. Mr. Siemens explained that by “our deal” he “possibly” had his brother or the farm in mind as being involved, so used “our” in the sense of his family organization (at paras. 79 and 110). Finally, the judge found Mr. Siemens’ evidence came across as overly rehearsed and directed at making the case against Mr. Howard, rather than telling her in a straightforward way what the facts were (at para. 111).
[7] Turning to whether there was an agency relationship between the parties, the judge concluded that neither an express nor implied agency had been established. It followed that Mr. Howard did not have fiduciary obligations to Mr. Siemens and that there was no basis for imposing a constructive trust over the property in dispute.
[8] Mr. Siemens seeks a new trial, contending the judge made the following four errors in dismissing his claim:
1. Misapplying the test for implied agency;
2. Overlooking essential evidence;
3. Relying on hearsay evidence; and
4. Conducting the trial in a manner that gave rise to a reasonable apprehension of bias.
I will address each ground of appeal in turn.
[9] The judge instructed herself on the test for implied agency as follows:
[130] The principle applicable to deemed or gratuitous agency is stated in Bowstead & Reynolds on Agency, 20th ed. (London: Sweet & Maxwell, 2014), at p. 61, as follows:
Agreement between principal and agent may be implied in a case where each has conducted himself towards the other in such a way that it is reasonable for that other to infer from that conduct consent to the agency relationship.
[131] That principle was cited and applied, for example, at trial in Soulos v. Korkontzilas (1991), 4 O.R. (3d) 51 (Gen. Div.) (“Soulos Trial”), at pp. 65-66, in support of the trial judge’s finding that Mr. Korkontzilas was the agent of Mr. Soulos. This finding was accepted in the subsequent appeals to the Ontario Court of Appeal and the Supreme Court of Canada. Indeed, in Soulos SCC, McLachlin J. observed, at para. 12, that “Most real estate transactions involve one person acting gratuitously for the purchaser, while seeking commission from the vendor.”
[Emphasis added.]
[10] The judge observed that the fact Mr. Siemens had no obligation to pay a commission to Mr. Howard was not relevant to a determination of whether a deemed agency relationship existed (at para. 132). She also noted that the concept of gratuitous agency in relation to a realtor or real estate agent had received little attention in BC, other than in Sandhu v. Shiell, 1996 CanLII 2193 (B.C.C.A.). In that case Mr. Justice Lambert, writing for the court, found it unnecessary to address the issue of gratuitous agency, but described the concept as “a very attractive legal principle” (at para. 17). Relying on Sandhu and Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, the judge rejected Mr. Howard’s argument that gratuitous or deemed agency is not part of the law of British Columbia.
[11] I note that the judge cited the 20th edition of Bowstead & Reynolds on Agency, when in fact the quotation she included in her reasons came from the 15th edition. The 20th edition describes deemed agency this way at 61:
Agreement between principal and agent may be implied in a case where one party has conducted himself towards another in such a way that it is reasonable for that other to infer from that conduct assent to an agency relationship.
[12] Although the test is expressed somewhat differently in the two editions, both rely on the same jurisprudence. In my view nothing turns on the difference in phrasing. The question is whether it is reasonable for the party asserting an agency relationship to infer from the conduct of the other party that he or she consented to an agency relationship.
[13] Mr. Siemens contends the judge misapplied the test because she focused on his conduct and whether he was acting in a manner consistent with Mr. Howard being his agent, rather than asking whether Mr. Howard’s conduct, seen from the perspective of Mr. Siemens, could reasonably lead Mr. Siemens to infer that Mr. Howard had consented to act as his agent in buying Old Riverside.
[14] In my view, whether it was reasonable for Mr. Siemens to infer Mr. Howard was acting as his agent required the judge to consider the behaviour of both men. Mr. Howard’s actions could not be sensibly isolated from Mr. Siemens’ behaviour, and the judge was correct in this case to look at the events in the context of all of the circumstances. Further, as counsel acknowledged, the conduct of one man was often the flipside of the conduct of the other — for example, the judge’s observation that Mr. Siemens did not determine the purchase price to be included in the offers was equivalent to recognizing that Mr. Howard had control over the price offered.
[15] Mr. Siemens also contended the judge erred because she failed to consider that even if Mr. Howard planned to buy the property in his own name as principal in relation to the vendors, he could still be regarded as an agent for Mr. Siemens in relation to the resale to him. For this proposition Mr. Siemens relies on Bowstead (20th edition) at 372. This argument was not made at trial, so naturally was not addressed by the judge in her reasons. However, in my opinion this characterization, like the first, turns on the facts: was it reasonable for Mr. Siemens to infer from Mr. Howard’s conduct that he was acting as Mr. Siemens’ agent whether in relation to the original purchase or on a resale of the bulk of the property? In both scenarios Mr. Siemens would end up paying all or nearly all of the price Mr. Howard paid to the vendors. Mr. Howard indeed testified that his plan was to retain the half acre and pay no part of the purchase price if he could adjust the lot lines and assign the purchase agreement before closing. In either scenario, if Mr. Howard was acting as agent, it would be expected that Mr. Siemens would have some control over the price being offered.
[16] The judge made a number of findings of fact that did not support a reasonable inference on Mr. Siemens’ part that Mr. Howard was acting as his agent. First, she found that although Mr. Howard introduced Mr. Siemens to the property, it was in the context of Mr. Howard telling Mr. Siemens that he was interested in acquiring the property for himself — an interest he had held for some time prior to their initial conversation.
[17] Second, she found Mr. Siemens did not instruct Mr. Howard on any of the terms of the four offers made (including the purchase price), was not aware of the terms of the offers, and did not see copies of the documents presented to the owners. She found Mr. Howard alone set the terms of the offers and that Mr. Siemens knew that to be so (at paras. 145–148).
[18] Third, the judge noted that Mr. Howard and Mr. Siemens communicated with one another frequently by text and telephone, but did not speak over the phone between January 30 and February 7, 2014, even though Mr. Howard submitted two offers on February 4. The judge found the frequency of the communications between the two men confirmed Mr. Siemens’ interest in Old Riverside, but was reasonably explained by the prospect of Mr. Siemens’ acquiring surplus lands from Mr. Howard if he succeeded in acquiring the property and adjusting the lot lines (at para. 151). All of these findings were available to her on the evidence.
[19] In summary on this ground of appeal, in my view the judge applied the correct test to the facts as she found them. I see no error in either her understanding of the test or its application.
[20] Mr. Siemens contends the judge ignored and overlooked evidence that was central to an analysis of whether Mr. Howard’s conduct could reasonably give rise to an inference of gratuitous agency. The standard of review on this ground of appeal is palpable and overriding error: Van Mol v. Ashmore, 1999 BCCA 6 at paras. 11–12, leave to appeal ref’d [1999] SCCA No. 117.
[21] I begin by noting that it is open to a judge to prefer the testimony of one witness over another, and to place more weight on some parts of the evidence than others. A judge is not required to address in her reasons for judgment all of the evidence and every point raised in argument: Housen v. Nikolaisen, 2002 SCC 33 at para. 72. With those principles in mind, I turn to the evidence Mr. Siemens contends the judge overlooked.
[22] First, he submits the judge ignored evidence that Mr. Howard was motivated to avoid clarifying his relationship with Mr. Siemens and chose not to do so — even though he was aware that Mr. Siemens at times did not seem to understand that Mr. Howard was not representing him. For example, both parties testified they discussed whether Mr. Siemens should be paying Mr. Howard a commission on the sale, and at one point Mr. Siemens texted Mr. Howard to “hold off on offer”. Mr. Howard agreed in cross-examination that Mr. Siemens seemed confused at times, and acknowledged it would not have been ideal for Mr. Siemens to get his own agent and start a bidding war over Old Riverside. Mr. Siemens submits the judge should have taken Mr. Howard’s “omission to correct” into account in deciding whether it was reasonable for Mr. Siemens to infer that Mr. Howard was acting as his agent.
[23] Although the judge did not directly address Mr. Howard’s motive not to clear up Mr. Siemens’ confusion, she did refer to the parties’ discussions about payment of a commission and Mr. Siemens’ instruction to “hold off on offer” (at para. 138). However, she placed more weight on the evidence demonstrating that Mr. Siemens had no input into the terms of the offers Mr. Howard made, and to the evidence that Mr. Howard had demonstrated an interest in acquiring the property for himself long before speaking to Mr. Siemens about it.
[24] Second, Mr. Siemens says the trial judge ignored text messages that showed Mr. Siemens had given instructions to Mr. Howard. On January 28, 2014, Mr. Siemens sent two text messages. The first read: “Call me when you get a chance. Want to do a deal on property but need to stretch closing date back.” The second I have already alluded to: “Hold off on offer just got call from city. Let’s talk/meet tomorrow.” Mr. Siemens submits the judge’s conclusion that “None of the messages contain anything that [she] would describe as instructions from Mr. Siemens to Mr. Howard” (at para. 150) cannot be sustained in light of these two texts.
[25] In my view, the judge’s conclusion, read in context, is not inconsistent with the evidence. The full sentence reads: “None of the messages contain anything that I would describe as instructions from Mr. Siemens to Mr. Howard, certainly not relating to the content and terms of an offer. That includes Mr. Siemens’ first text on January 28, which I have discussed above.” (Emphasis added.) The first text is emphasized presumably because it related to “stretching the closing date back” — arguably something that could be construed as a term of an offer. Again, it is apparent from the judge’s reasons as a whole that she placed considerable weight on the absence of instructions from Mr. Siemens as to the purchase price and deposit. She also considered these communications to be consistent with the parties’ loosely defined plan for Mr. Howard to assign his purchase agreement or sell part of Old Riverside to Mr. Siemens (at para. 50).
[26] Finally, Mr. Siemens says the judge ignored or overlooked challenges to Mr. Howard’s credibility. He contends the judge could not fully assess Mr. Howard’s credibility because she improperly permitted his counsel to ask leading questions during critical areas of Mr. Howard’s examination in chief.
[27] With great respect to the trial judge, I am of the view that she incorrectly held that leading questions are not objectionable but go only to weight. The party who calls a witness is generally not permitted to ask the witness leading questions: R. v. Rose (2001), 53 O.R. (3d) 417 at para. 9 (C.A.). Although a judge has discretion to permit leading questions on material matters, that ruling is often made after counsel has failed to elicit testimony with proper questioning. If a leading question is allowed at that point, less weight may well be given to the answer. In my view, however, this error was not a material one taken in the context of the record as a whole. Nor do I find that the judge ignored the weaknesses in Mr. Howard’s testimony. For ease of reference I repeat here the judge’s assessment of Mr. Howard’s evidence:
[104] During cross-examination, Mr. Howard often struggled to understand questions, and required questions to be repeated or rephrased. Sometimes the questions were complex and difficult to understand, and benefitted from being rephrased and simplified. However, often the questions were straightforward, and Mr. Howard’s approach made him appear at times evasive and defensive. His evidence at trial was not always completely consistent with the evidence he had given at his examination for discovery, when this was put to him on cross-examination. However, generally, the inconsistencies were minor and inconsequential. Sometimes discovery evidence was used simply to refresh Mr. Howard’s memory, rather than to impeach.
Despite Mr. Howard’s deficits as a witness, the judge generally preferred his testimony over that of Mr. Siemens. Her assessment of credibility is entitled to a high level of deference.
[28] In summary on this ground of appeal, I find no palpable and overriding errors in the judge’s assessment of the evidence.
[29] An important issue at trial was whether Mr. Howard put the offers to acquire Old Riverside in his name because some of the owners of the property considered Mr. Howard to be a preferred buyer — this was described at trial as the “neighbour card” issue. Mr. Siemens wanted to establish that Mr. Howard told him the owners were more likely to sell to him and at a better price because he was a neighbour, and might not want to sell to someone who would put a chicken barn on the property. Mr. Siemens viewed these statements as important in explaining why he was content to let Mr. Howard make the offers to purchase in his own name. The owners of Old Riverside did not testify.
[30] Mr. Siemens submits the judge used the evidence tendered on the neighbour card issue for an improper hearsay purpose rather than the proper non–hearsay use. He contends the non-hearsay use was whether Mr. Howard believed he had an advantage, as a neighbour, in pursuing the property as a result of what the owners had said to him. If he believed that to be so, it increased the likelihood that he used the phrase “playing the neighbour card” in his discussion with Mr. Siemens, just as Mr. Siemens testified. It did not matter whether the owners actually held those views.
[31] Mr. Siemens submits the hearsay component was whether the owners of Old Riverside really preferred to sell to a neighbour or a person they knew, and whether they had concerns about how a potential buyer would use the property.
[32] Mr. Siemens contends the judge erred because she used the hearsay evidence for its truth and engaged in a protracted analysis of whether the owners made such statements to Mr. Howard. The appellant points to the following passages from the reasons for judgment:
[154] On cross-examination, Mr. Howard denied using the term “neighbour card” in his discussions with Mr. Siemens. Mr. Howard at first resisted the suggestion that Mr. Hooge wanted to sell Old Riverside to him in particular because he was a neighbour. However, Mr. Howard acknowledged that evidence he had given on his examination for discovery that he understood Mr. Hooge wanted to sell to him in particular because he was a neighbour and the two of them had communicated numerous times about the property was true. But this does not assist Mr. Siemens to establish a deemed agency, especially where Mr. Howard has disclosed to Mr. Siemens his own interest in acquiring Old Riverside. Moreover, Mr. Howard’s evidence that he has never made an offer for a client in his own name, and his explanation of why, makes sense. It is consistent with what a practical and informed person would recognize as reasonable and expected in the circumstances.
[155] The proposition that business people would sell real property at less than market because the potential buyer was a neighbour strikes me as improbable, although it might be possible. However, more improbable is the proposition that the sellers of Old Riverside would be concerned about the use a potential buyer was intending to make of the property they were selling. Mr. Siemens mentioned the latter as a reason in support of “playing the neighbour card,” and for not disclosing that he was the true purchaser. However, in my view, this simply does not make sense, and Mr. Siemens evidence that he was told this by Mr. Howard is not credible. In addition, Mr. Howard did not need to be the nominal purchaser (for an undisclosed principal) for his relationship with Mr. Hooge to be a benefit in negotiations, since the relationship between Mr. Howard and Mr. Hooge could be also used if Mr. Howard were acting explicitly on behalf of a client. Mr. Siemens’ evidence about the “neighbour card,” as support for his position that Mr. Howard implicitly consented to be his agent, is not reasonable.
[156] What is more probable is that the owners of Old Riverside may have been prepared to entertain an offer from Mr. Howard, when the property was not in fact listed for sale. Mr. Howard had been on the scene and discussing a possible sale with Mr. Hooge in the fall of 2013. This would be a reasonable interpretation of Mr. Howard’s January 10, 2014 text message to Mr. Siemens, where he says “I think they bought in :),” namely, that the owners of Old Riverside had – finally – bought into the idea of selling the property, particularly in the context of Mr. Howard’s late December text saying “I know they were talking about selling. I think they are tired of holding the property.”
[Emphasis added.]
[33] Mr. Siemens submits the judge should have limited herself to asking the right question: whether in light of Mr. Howard’s admission that he believed three of the owners would prefer to sell to him so long as the price was competitive, it was more likely than not that Mr. Howard suggested that offers to purchase Old Riverside should go in his name. After answering that question, he contends the judge should have gone on to ask whether, if Mr. Howard did propose such a thing, it was reasonable for Mr. Siemens to infer that Mr. Howard was protecting his interest as his agent by making the offers in his own name. In other words, Mr. Siemens contends the judge’s focus on the wrong question — whether the neighbours really did prefer to sell to Mr. Howard — led the judge to enhance her assessment of Mr. Howard’s credibility and diminish that of Mr. Siemens. As a result of her view that it was improbable that there was a neighbour card, she was more inclined to conclude that Mr. Siemens was not telling the truth.
[34] I would not accede to this ground of appeal. In my view, the judge was not making findings as to whether the owners actually told Mr. Howard they preferred to buy from him, were concerned about the use of the property, and would sell to him at a better price. Rather, she recognized Mr. Howard’s admission that he thought he had an advantage as a neighbour in getting the owners to sell, and then assessed whether it was likely that he told Mr. Siemens the owners would not want to sell to someone who planned to put a chicken barn on the property and that they would sell to a neighbour at a better price. Having concluded that those putative statements made no sense, she inferred it was improbable that Mr. Howard would have made them to Mr. Siemens. In my view the judge did not here rely on hearsay evidence. Rather, to use the judge’s words, she assessed the evidence by considering what was “consistent with what a practical and informed person would recognize as reasonable and expected in the circumstances” (at para. 154).
[35] In summary on this ground of appeal, in my view the judge did not improperly rely on hearsay evidence.
[36] This ground of appeal largely repeats submissions made in an application to the judge at trial asking her to recuse herself on the basis of a reasonable apprehension of bias. That application was made the day before the parties were to continue with closing submissions. The judge dismissed the application in a written ruling delivered November 2, 2016.
[37] On appeal, counsel for Mr. Siemens relies primarily on the manner in which the trial proceeded during closing submissions, “but assessed in light of other conduct that occurred during the course of the trial”. Mr. Siemens contends the following gave rise to a reasonable apprehension of bias:
(i) The judge refused to read his written closing argument;
(ii) The judge challenged Mr. Siemens’ counsel when she referred to contested facts in argument; and
(iii) The judge made critical comments about counsel’s conduct.
[38] I will describe each category of complaint and then address them as a whole.
[39] The first category of complaint relates to closing argument. On August 19, the date set for continuation of closing submissions, Mr. Siemens’ counsel presented a 50-page written document with pinpoint references to case law. Counsel then provided the court with “a roadmap” of her oral submissions. The following exchange then occurred:
MS. MACKAY: So turning to the first question, which is a question of express agency.
THE COURT: Are you in your submissions yet or not?
MS. MACKAY: [I] don’t propose to read my submission.
THE COURT: All right. Don’t leave me to read them on my own. I’m not going to do that. [If] you have submissions to make and they’re here, you need to take me to them.
MS. MACKAY: I intend to do that, but I don’t want to intend [sic] to each paragraph, read them to the court. If I did, we would be here until, well, Monday morning.
THE COURT: Well, I’m sure that’s not true. But it’s not good practice to give the court a lengthy written brief and then say I’m not going to -- I’m not going to go to it; you can read it on your own. No.
MS. MACKAY: Well, I won’t -- I won’t comment on that. But I certainly will --
THE COURT: Well, I’m telling you what my perspective is.
MS. MACKAY: My Lady, I have organized my submissions in a way that is somewhat different than my written submission, and I do -- from my perspective -- and the court is well entitled to its own view, but in my perspective, it is not good advocacy for counsel to stand and read line by line a written submission.
THE COURT: Well, I’m not suggesting that either. Let’s be clear about that. But it seems that you’re telling me that your oral submissions are actually going to be quite different from the written brief that you’ve given me. Is that right?
MS. MACKAY: They’re not quite different. It’s that I have organized them in a way that, from my perspective, will be helpful for the Court.
THE COURT: All right. But does that mean that the written submissions really aren’t going to be helpful for me this morning?
MS. MACKAY: Not at all. Not at all. And there are passages of the written submission that I will be referring to in detail. And I propose to do that now. But if the court is advising me that it does not wish to hear my oral submission, then we will have to proceed in a different way.
THE COURT: No, of course, Ms. MacKay, I want to hear your oral submissions, but I’m just trying to follow what’s -- I’m just trying to follow your presentation. And generally speaking, when I receive a written submission, counsel doesn’t depart markedly from it. I don’t expect counsel to read it verbatim. That’s not reasonable either. But I do expect that the written submission will provide me with some guidance with respect to the -- the submissions that counsel are going to be making in closing. But let’s try and move forward as best we can.
MS. MACKAY: Right. And if I can make the point, I have not said that I have departed markedly from my written submission. What I have said is that I have organized my oral submissions differently, and I will be taking the court to particular passages of the written submission, and I have that organized. I’m ready to proceed.
[Emphasis added.]
[40] During the hearing of the disqualification application, the following exchange occurred between the judge and counsel for Mr. Siemens:
THE COURT: Ms. MacKay, do you have a case that says there’s an express obligation on the court to read a closing submission?
MS. MacKAY: I do not.
THE COURT: All right. I’m not aware of any. …
* * *
THE COURT: Well, it’s a little odd then perhaps that you can’t cite any authority for me -- and I’m sure you’ve canvassed the leading authorities for the purposes of this application, that expresses such an obligation on a trial judge.
MS. MacKAY: I would turn it -- that question on its head, My Lady, and I would say this. I have never seen or heard of a proceeding in which a trial judge disavowed an obligation to review a written submission.
THE COURT: All right. Ms. MacKay, that’s not what happened here. I told you I wasn’t going to read the submission on my own. And --
MS. MacKAY: I have never seen or heard of a proceeding in which the judicial officer made such a statement.
[41] The second category of complaint relates to the judge challenging counsel for Mr. Siemens for relying on contested facts. In his written submission, Mr. Siemens relied on his version of events to argue that it was reasonable for him to infer that Mr. Howard was acting as his agent. When counsel began to address that submission, the following exchange occurred:
THE COURT: All right. I see -- I see some of these things at -- because there’s not necessarily no dispute on the evidence about that.
MS. MACKAY: No, this is part of the submission --
THE COURT: All right.
MS. MACKAY: And I, as Mr. Siemens’ counsel, am putting forward to the Court our interpretation of matters that are disputed. And some of them are disputed and some of them are not. And one of the points that I would make is that there are two litigants before the Court. There’s Mr. Siemens and there is Mr. Howard. And what the Court’s duty is in all of the circumstances is to listen to Mr. Siemens’ evidence, listen to Mr. Howard’s evidence and balance both of them against the preponderance of the evidence. And there is no requirement on Mr. Siemens to proffer only the evidence that is uncontested. Mr. Siemens can proffer the evidence that he wishes to proffer and ask the Court to draw inferences from that evidence.
THE COURT: I’m not disputing that. But I’m simply observing that some of these things that are set out in paragraph 143 of your submissions are disputed on the evidence. But I take it that these are the findings that you want me -- or you say I should make.
[Emphasis added.]
[42] Similarly, when counsel turned to the “neighbour card” issue, the judge pointed out that Mr. Howard’s evidence was that he did not use that term.
[43] Mr. Siemens submits the judge’s comments signalled that she was not prepared to find contested facts in Mr. Siemens’ favour — even before the parties had a full opportunity to address issues of credibility.
[44] The third category of complaint relates to the judge correcting counsel when she used the phrase “in my view” rather than “in my submission”, as well as other exchanges which were viewed by counsel as unwarranted comments on counsel’s professionalism. With respect to the latter, Mr. Siemens refers to the following exchange:
THE COURT: All right. I know we’re going to -- well, I assume we’re going to get to Mr. Khangura probably shortly because I see there’s a section in the argument about -- it’s called “the Khangura agreement.”
MS. MACKAY: Right.
THE COURT: And of course based on the evidence that I heard, there’s -- there’s no Khangura agreement. We --
MS. MACKAY: My Lady, I -- let me say this, and let me say this constructively and with all due respect to the Court, we can engage in this and we can engage in this picking and this detail, but the problem is, is that at paragraph 112 of my submission I have said this:
In January, February, March or April Mr. Howard and Mr. Khangura reached a verbal agreement, agreement in principle or an understanding that Mr. Khangura will buy the excess of the property once the lot lines have been adjusted.
And -- so we can engage in this negative banter all the way through, or the Court can sit and listen and engage with me constructively and positively on a closing statement that I wish to make.
THE COURT: All right. Ms. MacKay, I’m asking questions because I’m trying to follow the submissions that you’re making to me. If I don’t follow the submissions, you’re really in an impossible position, so that’s why I’m asking the questions. And it may be aggravating to have me asking these questions, but that’s why I’m doing it. I’m not doing it to try and aggravate you or interrupt the flow of your argument or -- or any other reason that’s not constructive. I’m trying to follow the argument and -- so when I raise with you an issue that concerns me where you’re going to be making submissions about something called “the Khangura agreement” and I make the observation that based on the evidence I heard, legally there is nothing. It’s a concern that I have in this case, and if you’re going to be making a submission relying on something that you’re calling “the Khangura agreement” when no such agreement exists, I’m not going to be able to accept your submission.
[Emphasis added.]
[45] The test for reasonable apprehension of bias is set out in Wewaykum Indian Band v. Canada, 2003 SCC 45. In that case, the Court (at para. 60) adopted “the criterion for disqualification” of a judge set out by Justice de Grandpré in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394:
… 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. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[46] The court’s obligation to be open to the submissions of counsel was emphasized in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 30, where the Court cited the following passage from Miglin v. Miglin, [2001] 53 O.R. (3d) 641 (C.A.), aff’d 2003 SCC 24:
The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S. (R.D.), [1997] 3 S.C.R. 484, … to reflect the overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open to the evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of an unfair trial. Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial.
[Emphasis added.]
[47] Counsel submits it is open to a party to present closing submissions orally, in writing, or ideally both. She points to Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, where the Supreme Court of Canada said:
[34] In this spirit, and in the interests of expediting judicial business, courts actively encourage parties to submit written arguments and proposed orders. This process is accelerating. In the United States, and more and more in Canada, courts welcome electronic submissions. Such submissions help the judge get the decision right, facilitate the task of judgment writing and speed the judicial process. …
[48] While I agree with this submission, that is not to say that a judge has no control over how argument is to be presented. As part of trial management, it is open to the judge to ask for written argument, and to require as well that counsel make full oral submissions so that the judge has an opportunity to ask questions, express preliminary thoughts, and probe what appear to be weaknesses in the party’s position. These interjections, while at times challenging for counsel, do not in my view give rise to a reasonable apprehension of bias. As this Court stated in R. v. Sanghera, 2015 BCCA 326, leave to appeal ref’d [2015] SCCA No. 375:
[59] The final alleged interference concerns comments of the judge during submissions. Repeatedly, it has been said that little should be taken from the exchange of counsel and a trial judge during submissions. There is little wrong in a judge challenging assertions of counsel or expressing preliminary thoughts on issues in order to give counsel an opportunity to address the judge’s concerns.
[49] Nor in my view did the exchanges, which counsel here construed as overly critical of her conduct of the case, rise to that level. It is evident that counsel was advocating forcefully on behalf of Mr. Siemens, and that she considered his case to be a compelling one. It is no doubt frustrating for counsel when a judge takes a different view of the evidence and when that view is put to counsel in clear terms during argument. However, at the end of a trial it is neither unusual nor improper for a judge to have formed a preliminary view of the strengths of each side’s case and to express those views to test counsel’s position and to ensure that counsel is aware of the aspects of the case the judge is having difficulty accepting. It is indeed often in the thrust and parry of these final exchanges that a judge’s understanding of a case is refined and clarified.
[50] In an adversarial system, differing views of the case and the evidence are inevitable. In my respectful view, the exchanges here complained of could be described as forceful and direct on the part of both judge and counsel, but they would not give rise to a reasonable apprehension of bias on the part of an objective observer.
[51] In the result, I would dismiss the appeal.
“The Honourable Madam Justice Fenlon”
I AGREE:
“The Honourable Mr. Justice Tysoe”
I AGREE:
“The Honourable Mr. Justice Goepel”