Before: The Honourable Madam Justice Gray

Reasons for Judgment

Counsel for the Petitioner:	F.A. Schroeder
Counsel for the Respondent, Workers' Compensation Board of British Columbia:	S. Tucker E. Sigurdson
Counsel for the Respondent, Workers' Compensation Appeal Tribunal:	V.A. Pylypchuk
Date and Place of Hearing:	September 9, 2008
	Vancouver, B.C.

INTRODUCTION

[1] The petitioner, Mr. Johnston, sought judicial review of a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”) and class action certification. The proceeding was certified as a class action, and later, several issues were determined on judicial review.

[2] The Court of Appeal's order pronounced May 27, 2008 remitted back to this court issues remaining under the amended petition. The respondent, Workers' Compensation Board of British Columbia ("WCB"), applied for an order that I disqualify myself from hearing those issues, and argued that there is a reasonable apprehension that I will be biased in deciding the issues. The case has become procedurally complex, and the WCB's argument requires consideration of the entire procedural background.

FACTS

[3] On September 21, 2001, the WCB Review Board decided that Mr. Johnson was entitled to retroactive wage loss benefits. At the time, the WCB's interest policy ("Old Interest Policy") provided that a person in Mr. Johnson's circumstances was entitled to interest on such benefits.

[4] On October 15, 2001, the WCB panel of administrators passed a new policy limiting the payment of interest on retroactive benefits ("New Interest Policy"). The New Interest Policy denied interest unless "a blatant [WCB] error necessitated the retroactive payment". The New Interest Policy defined “blatant” as an “obvious and over-riding error” that excluded understandable errors resulting from misjudgement.

[5] In December 2001, Mr. Johnson was paid the retroactive wage loss benefits, but without interest. On May 17, 2002, he was informed by the WCB that he was not entitled to interest. Mr. Johnson appealed to the WCB Review Board. The appeal was transferred to the WCAT. The arguments before WCAT addressed whether application of the New Interest Policy to Mr. Johnson was retroactive, retrospective or prospective. The WCAT found the New Interest Policy was retrospective and therefore intra vires the statutory authority of the WCB. The WCAT reasons for decision included the statement that "[w]e do not consider the amended policy, and its retrospective application in the circumstances of the worker's case, to be patently unreasonable.” The WCAT dismissed Mr. Johnson's appeal.

[6] Mr. Johnson petitioned for judicial review and sought class action certification. The Chief Justice appointed me the case management judge.

[7] In reasons for judgment reported at 2007 BCSC 24, and supplemental oral reasons dated January 31, 2007 (together, "Certification Decision"), I certified this proceeding as a class action pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50. The two questions certified as common issues were:

(a) whether the New Interest Policy is patently unreasonable in the face of s. 5(1) of the Workers' Compensation Act, R.S.B.C. 1996, c. 492 ("WCA"); and

(b) whether the New Interest Policy is retroactive and therefore ultra vires the statutory authority of the WCB.

[8] The common issues proceeded to a three-day hearing on affidavit evidence. There was no dispute on the evidence. In reasons for judgment reported at 2007 BCSC 1410 ("Judicial Review Decision"), I concluded that the New Interest Policy is not capable of being supported by the WCA and its regulations, and it was patently unreasonable for the WCAT to conclude otherwise. As a result, the decision was referred to the WCAT precedent panel for reconsideration. I concluded in the Judicial Review Decision that it was unnecessary to address the question of retroactivity. The question of whether judicial review ought to have been refused by reason of failure to exhaust alternative remedies, such as an appeal to WCAT, was not raised before me, and I did not make any findings in that regard in the Judicial Review Decision.

[9] WCB commenced appeals of both the Certification Decision and the Judicial Review Decision. The appeal of the Judicial Review Decision was heard by the Court of Appeal, which released oral reasons for judgment on May 27, 2008, reported at 2008 BCCA 232, 81 B.C.L.R. (4^th) 380. The Court of Appeal quashed the order arising from the Judicial Review Decision, and referred back to the trial court in chambers the issues in the petition that remain to be determined. The Court of Appeal declined to dismiss the judicial review because, first, Mr. Johnson has another argument to make as to whether the court can (and should) consider the legality of the New Interest Policy directly and without reference to the WCAT's decision and, second, because the common issue regarding retroactivity was not decided.

[10] By letter dated June 23, 2008, Mr. Arvay, Q.C., as counsel for WCB, made written submissions to the Chief Justice suggesting that the matter should be referred to a judge of this court other than me. Mr. Arvay argued that there was a reasonable apprehension that I would be biased, either consciously or unconsciously, in deciding the remaining issues. Mr. Schroeder, as counsel for Mr. Johnson and the class, sent a letter dated June 24, 2008 arguing that there was no concrete basis for a reasonable apprehension of bias.

[11] By email dated July 8, 2008, the court's manager of trial coordination advised counsel that I "will be the one to determine whether [I] will hear the portion remitted back from the Court of Appeal", and asked counsel to arrange a case management conference.

[12] The Chief Justice sent counsel a letter dated August 11, 2008, stating that after considering counsel's letters dated June 23 and 24, 2008, "I have asked Madam Justice Gray to continue with this assignment".

[13] The WCB's application for an order that I disqualify myself proceeded to a one-hour hearing on September 9, 2008. Mr. Schroeder argued against the WCB's application. Counsel for WCAT took no position.

POSITION OF THE PARTIES

[14] WCB argued that it has been directed by the Court of Appeal to raise issues which I was not previously asked to consider, such as the scope of the relief sought in the petition, and whether Mr. Johnson can attack the New Interest Policy on the basis now proposed and without first exhausting his remedies under the WCA. I will refer to these issues collectively as the “Procedural Issues".

[15] WCB argued that this court may have discretion in deciding the Procedural Issues, and that there is a reasonable apprehension that I would be biased in deciding those issues because of my conclusions in the Judicial Review Decision and the Certification Decision. WCB argued that, because I came to the conclusions I did in the Judicial Review Decision without the benefit of reasons from WCAT, it is reasonable to apprehend that I will be biased in considering whether it was appropriate for me to make a decision in the absence of WCAT's reasons on the issue.

[16] Mr. Schroeder argued that there is no legal basis for a reasonable apprehension of bias because I have not adjudicated the Procedural Issues. Mr. Schroeder argued that the Chief Justice assigned this matter to me, and, after considering letters from counsel for the petitioner and the respondent on the issue of disqualification, asked me to continue, and that I should respect that decision.

LAW

[17] The standard to be applied in determining whether a judge should be disqualified from hearing a case is whether there is a reasonable apprehension of bias. The Supreme Court of Canada held in R. v. S.(R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4^th) 193, that the test is as follows (quoting Grandpre J., dissenting, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at 394):

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?

[18] In R. v. S.(R.D.), Cory J., at para. 111, clarified that this test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold".

[19] Bias, reduced to its most basic element, is a state of mind in which the decision-maker is not open to persuasion on the basis of evidence or submissions (see Lesiczka v. Sahota, 2007 BCSC 479, leave to appeal dismissed 2007 BCCA 334, 70 B.C.L.R. (4^th) 281, at paras. 7-9).

[20] The principles for the determination of a reasonable apprehension of bias are summarized by the British Columbia Court of Appeal in Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350, 49 B.C.L.R. (4^th) 134, at para. 7:

(a) A judge’s impartiality is presumed;

(b) A party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;

(d) The question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter though, conclude;

(e) The test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;

(f) The test requires demonstration of serious grounds on which to base the apprehension;

(g) Each case must be examined contextually and the inquiry is fact-specific.

[Emphasis deleted.]

[21] As set out in Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259, it is presumed that judges act with integrity. The presumption acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. In Roberts, at para. 2, McLachlin C.J. stressed the significance of the presumption of impartiality in any allegation of bias:

An allegation that a judgment may be tainted by bias or by a reasonable apprehension of bias is most serious. That allegation calls into question the impartiality of the Court and its members and raises doubt on the public's perception of the Court's ability to render justice according to law.

[22] And further at para. 59:

... (i)mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary" (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted in … S. (R.D.)… the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption.

[23] The threshold is high and “mere suspicion” of partiality will be insufficient: R. v. S.(R.D.), at para. 112. “Something more” is required: R. v. Novak (1995), 59 B.C.A.C. 152, at para. 7.

[24] In Novak, the accused was charged with two counts of assault arising out of two different incidents. The trials were heard consecutively and by the same provincial court judge, who found Mr. Novak guilty on both counts. On appeal, Mr. Novak argued that the judge should have disqualified himself from hearing the second trial on the grounds that he had made adverse findings of credibility against Mr. Novak in the first trial. Mr. Novak also argued that, even if the judge were able to come to a decision in the second trial solely on the basis of evidence led in that trial, there was nonetheless a reasonable apprehension of bias.

[25] The British Columbia Court of Appeal dismissed the appeal, stating at para. 7:

[7] The fact that a trial judge has ruled adversely in a previous case on the credibility of either a defence witness or the accused does not necessarily result in a reasonable apprehension of bias. Something more is required showing a predisposition by the adjudicator with respect to the accused's credibility, such as to amount to pre-judgment of the result of the second hearing. (See, for example, Re Arthur and Minister of Employment and Immigration (1992), 98 D.L.R. (4th) 254 (F.C.A.).) In this case, that "something more" is lacking.

[26] Judges have a duty to hear the cases to which they are assigned. In De Cotiis v. De Cotiis, 2004 BCSC 117, Groberman J., as he then was, considered an application that he disqualify himself from that case. He noted, at para. 10:

[10] There is, however, another aspect of these matters that must not be forgotten. It is the duty of a judge to hear cases that come before him or her, and a party should not be able to unilaterally choose not to have a matter heard by a particular judge simply because that party would prefer that another judge hear the case. If one party, without sound reason, is able to unilaterally determine that a particular judge will not hear a case, it also tends to bring the administration of justice into disrepute.

[27] In R. v. Quinn, 2006 BCCA 255, 209 C.C.C. (3d) 278, the British Columbia Court of Appeal, at para. 53, stated that judges should take care “not to create the impression that they are disqualified when in law they are not.”

[28] In Middelkamp v. Fraser Valley Real Estate Board, [1993] B.C.J. No. 2965 (S.C.), at para. 25, the court noted that hasty disqualification can set a “dangerous precedent”. In that case, counsel submitted that the judge should disqualify herself even though there were no grounds for disqualification. Boyd J. wrote that to do so would invite:

… disgruntled, unhappy litigants or their counsel to make whatever allegations they wished…. If the allegations failed to provide a proper foundation for a finding of bias or a reasonable apprehension of bias, the litigant could nevertheless take comfort in the knowledge that the mere making of the allegations would, by their very nature, taint the process and force the disqualification of the judge.

[29] In R. v. Kochan, 2001 ABQB 346, 288 A.R. 333, Binder J. had acted as trial judge in pre-jury selection motions on an indictment of the accused. The indictment was eventually stayed by the Crown and a new indictment filed, with the result that the court would be called upon to make fresh determinations of the same issues in proceedings concerning nine of the same accused.

[30] In refusing to disqualify himself from hearing the later proceedings, Binder J. wrote as follows at paras. 15 and 20:

[15] Generally a determination which does not involve the hearing of evidence crucial to the guilt or innocence of an accused, findings of fact based on such evidence or the assessment of credibility of witnesses, does not, barring very rare and exceptional circumstances, provide a basis for a finding of bias… .

[20] There is no authority in Canada or in foreign jurisprudence that the results of judicial decisions alone are ever indicative of an apprehension of bias…the appropriate remedy for any litigant who is dissatisfied with the legal interpretations adopted by a presiding judge is to pursue appellate remedies rather than an application for recusal.

[31] In Broda v. Broda, 2001 ABCA 151, 286 A.R. 120, the Alberta Court of Appeal wrote at para. 16 that “the mere fact that a party has lost some motion or suit before a judge…does not entitle that litigant to be thereafter free of that judge.” The court goes on to note that any other rule would render litigation impossible in smaller communities where only a few judges sit regularly, or in motions to rehear or reconsider previous rulings.

DISCUSSION

[32] WCB argued that, because I came to the conclusions I did in the Certification Decision and the Judicial Review Decision, there is a reasonable apprehension that I will be biased in considering the Procedural Issues, which involve consideration of the court's discretion.

[33] The flaw in this argument arises from the fact that my conclusions in the Certification Decision and the Judicial Review Decision are binding on every judge of this court unless overruled by the Court of Appeal. In considering whether a judge could come to a decision without the benefit of analysis by WCAT, every judge of this court must consider that in fact I did so in the Judicial Review Decision. In considering whether there could be any merit to the argument that the New Interest Policy was patently unreasonable in the face of s. 5 of the WCA, every judge of this court must consider that in fact I concluded it was.

[34] My impartiality is presumed, and the WCB must demonstrate serious grounds for the apprehension that I am biased. The WCB relies solely on the fact that I ruled against the WCB in the Certification Decision and the Judicial Review Decision. The fact that a judge previously ruled against a party is insufficient to establish a reasonable apprehension of bias; “something more” is required: see Novak, supra.

[35] The WCB relied on R. v. Kelly, 2005 BCCA 373, 199 C.C.C. (3d) 336, to argue that a reasonable apprehension of bias arises when a judge is required to revisit matters already addressed in a decision intended at the time to be final. Kelly is distinguishable from the present case on several grounds.

[36] In Kelly, the sentencing judge had found Mr. Kelly to be a dangerous offender. A new hearing was ordered because the judge had failed to consider the long-term offender provisions which became law after the commission of the offence. This new hearing came before the same sentencing judge. On application for disqualification, Warren J. noted that the sentencing judge had made comments suggesting a preference for the opinions of the Crown expert over those of the defence expert, and that the judge had concluded there was no hope of effective treatment of Mr. Kelly. Warren J. found that there was a reasonable apprehension of bias. This decision and Warren J.’s findings of fact were upheld on appeal.

[37] In Kelly, the sentencing judge had made findings of fact on the evidence regarding weight to be given to expert evidence and on the offender's prospects of rehabilitation. In contrast, there was no dispute on the evidence in the Certification Decision or the Judicial Review Decision. The contentious issues were matters of legal analysis, not findings of fact.

[38] As in Marchand and Kochan, the hearing of the Procedural Issues will not require me to revisit findings of fact or credibility made in previous proceedings. The issues decided in the Certification Decision and the Judicial Review Decision were solely of substantive law. The issues yet to be heard are procedural.

[39] A judge should not withdraw from a case without sufficient grounds to support an allegation of bias. Litigants should not be encouraged to make unsubstantiated allegations in order to force the disqualification of a judge who has ruled unfavourably against them in the past, or to “taint” the proceedings with an air of bias.

[40] A reasonable and right-minded person, informed of the circumstances of this case, familiar with the conduct of such petitions, and with the occasionally piecemeal manner in which judicial proceedings must be of necessity be conducted, would conclude that there are no serious grounds on which to found an allegation of bias.

CONCLUSION

[41] As a result, the WCB's application is dismissed. Counsel should schedule the hearing of the Procedural Issues through the registry, and if required, schedule a case management conference.

"Madam Justice Gray"

Citation:	*Johnson v. WCB,*
	2008 BCSC 1386