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Judges — Removal — Apprehension of bias — Panel of appellate court suggesting alternative route of appeal at preliminary hearing — Whether apprehension of bias arising justified removal of panel.
This was an application to dismiss a panel of judges hearing an appeal. A group of persons purchased a property. The governing agreement contained nothing enabling one member to acquire the shares of another against his will. On the petition of the respondents the court ordered that the interest of the appellant be sold to the respondents. No appeal was then taken but an application to set aside the order was dismissed. The appellant's application for an extension of the time to appeal the first order was refused. An application for an extension to bring a notice of review of the refusal to extend time was refused. Apparently, binding authority which ruled that the Partition Act did not permit the sale of an interest against the owner's will had not been brought to the attention of the courts. An appeal was brought from the dismissal of the application to set aside the order. At the initial hearing the panel indicated that it was considering whether it should review the orders refusing the extension of time to appeal the initial order, given the lack of jurisdiction under the Partition Act for the initial order. The respondent was required to file a factum. The appellant sought replacement of the panel on the basis of an apprehension of bias in that the issues were predetermined in favour of the respondent.
HELD: The application was dismissed. Because of counsel's apparent failure to point to the applicable law, the course followed by the panel was appropriate. Counsel's duty to assist the court took precedent to his duty to his client. Inviting a second appeal from the order was possibly done without jurisdiction but did not show bias. No apprehension of bias arose from the request of the assistance of the respondent's counsel, the only legally trained person before the court.
| Counsel for the Appellant: Elaine
Sturhahn. Counsel for the Respondent: David Unterman. |
BY THE COURT:— The matter now before us namely, whether a panel of this Court seized of a pending appeal, should disqualify itself on the ground that its conduct has been such as to give rise to a reasonable apprehension of bias, arises on a lengthy set of proceedings all of which took place in, or arise from, a petition launched in the Supreme Court of British Columbia on the 9th February, 1989.
Fundamentally at issue are two orders, one pronounced by the Honourable Judge Drost, as he then was, on the 16th June, 1989, and the other pronounced by the Honourable Judge Anderson, as he then was, on the 23rd April, 1990, requiring the sale by the appellant to the respondent of her interest in certain lands in Port Coquitlam.
In 1973, a group, known as the Gatensbury Syndicate, of some thirteen persons, including Mrs. Elaine Sturhahn, the sister of the appellant, purchased these lands intending to develop them. The syndicate is governed by an agreement in writing which empowers the managers to deal with the lands. It contains nothing that enables one member to acquire the share of another against the other's will.
At the time the proceedings below commenced, the lands were registered in the name of Gatensbury Estates Ltd. as trustee for the participants.
The matter has proceeded throughout on the footing that the members of the syndicate are tenants in common of the equitable estate. The syndicate agreement so provides.
At some time, the present appellant bought her sister's one-sixteenth interest. So far, this Court has permitted Mrs. Sturhahn to represent her sister Mrs. Armbruster on this appeal.
By various arrangements, the respondent Lougheed had acquired by 1989 six-sixteenths of the equitable estate and the respondent Vine, two-sixteenths.
On the 9th February, 1989, these two syndicate members launched the petition which begins thus:
| TAKE NOTICE that the Petitioners apply to this Court for an order pursuant to Rule 10 of the Rules of Court and the Partition of Property Act, R.S.B.C. 1979, c. 311, as amended, that: |
| (i) | The undivided 1/16 interest of the Respondent in the lands and premises situated in the Municipality of Port Coquitlam, in the Province of British Columbia and more particularly known and described as: |
| Lot B | |||
| of: | Section 6 | ||
| Block 6 | |||
| North Range 1 East | |||
| Plan 7763 | |||
| NWD | |||
| (herein the "Lands") |
| be sold to Lougheed
Enterprises Ltd. and Vine Enterprises Ltd. (hereinafter collectively called the
"Petitioners"). (ii) An appraiser who is a member of the Appraisal Institute of Canada be appointed to value the interest of the Respondent in the Lands. |
The answer to the petition was in part this:
| 6. | In answer to the whole of the Petition the Respondent says: |
| (a) | The subject property has a present value, because of its potential for subdivision into 110 building lots, of approximately $110,000.00 per acre. | ||
| (b) | The price paid to some of the syndicate members as set out in paragraph 15 of the Petition is well below the current market value of this property. | ||
| (c) | The Respondent has from time to time paid monies to the Gatensbury Syndicate for the benefit of the Petitioners and has never received an accounting although same has been requested from time to time. |
| THE RESPONDENT REQUESTS THIS HONOURABLE COURT TO: |
| (a) | Direct that the subject property be sold on the open market on the multiple listing service of the Greater Vancouver Real Estate Board through a real estate company to be appointed by this Honourable Court; | ||
| (b) | Direct that any sale be subject to the approval of this Honourable Court; | ||
| (c) | Order an accounting of all funds paid by the Respondent to the Gatensbury Syndicate for the benefit of the Petitioners; | ||
| (d) | Make such further Order as may be requisite on the conclusion of the accounting; |
That petition was launched eleven years almost to the day after Catliff, L.J.S.C., as he then was, had held in Hersog v. Hersog (1978), 5 B.C.L.R. 354, that the Partition Act, R.S.B.C. 1960, c. 276, which does not appear to be materially different from the Act invoked in this petition, did not empower the court to grant a petitioner, against the will of his co-tenant, the order sought here.
Mr. Unterman was not counsel for the petitioners when the petition came on for hearing before Drost, L.J.S.C. on the 16th June, 1989. Thus, he is unable to tell us whether either counsel (the appellant was also represented) drew this decision which was binding on Drost, L.J.S.C. to his attention. However, we proceed upon the assumption that Judge Drost would not knowingly ignore a decision binding upon him and that he was probably not made aware of it.
The order pronounced was in these terms, in part:
| THIS COURT ORDERS that the undivided one- sixteenth (1/16th) interest of the Respondent in the lands and premises situate in the Municipality of Port Coquitlam, in the Province of British Columbia, more particularly known and described as : |
| Lot B | ||
| Section 6 | ||
| Block 6 | ||
| North Range 1 East | ||
| Plan 7763 | ||
| NWD | ||
| (herein the "Lands") |
| be sold to the Petitioners, Lougheed Enterprises Ltd. and Vine Enterprises Ltd.; | ||
| THIS COURT FURTHER ORDERS that D.C. Andrews of D.C. Andrews Corporation be and the same is hereby appointed to value the interest of the Respondent in the lands; |
Curiously, nowhere in the order is it expressly stated that Mr. Andrews' value will be the purchase price nor does the order expressly give liberty to apply.
No appeal was then taken.
On the 28th March, 1990, the appellant launched a motion for an order among other things:
| 1. | . . . setting aside the Order of the Honourable Judge Drost, made in this action on June 16, 1989, and dismissing the Petitioner's application; | ||
| 2. | In the alternative, a supplementary order giving further directions to the valuator with respect to the proper method of valuation, fixing the effective date for valuation purposes and fixing the rate of interest payable on the price established by the valuator. |
There were no written reasons given by Judge Anderson in deciding that application. It is not clear to us what precise points were put before that learned judge. His order, in part, was this:
| THIS COURT ORDERS that the Respondent's application to set aside the Order of the Honourable Judge Drost, made June 16, 1989, is hereby dismissed; | ||
| THIS COURT DECLARES the report of D.C. Andrews, dated November 21, 1989 satisfies the requirements of the Order of the Honourable Judge Drost aforesaid; | ||
| THIS COURT ORDERS that the date for valuation of the Respondent's interest in the land is June 16, 1989; |
Thereupon, the appellant applied for an extension of time for bringing an appeal from the order of Judge Drost. On 13th June, 1990, that application was refused by Mr. Justice Legg who said, in part (Vancouver CA012542, at pp. 5-6):
| Notwithstanding the forceful and detailed submissions which were made by counsel for the appellant, I am unable to agree with his submissions. Rather, I accept the submissions of Mr. Unterman on behalf of the respondents, namely that when the provisions of s. 6 and s. 10 of the Act are read together the Court has jurisdiction to direct a sale of any property which is the subject of partition proceedings held beneficially by tenants in common, and to authorize persons in the position of the respondents to bid at the sale. Further, s. 8 of that Act authorizes the Court to direct the sale of the property held beneficially by or for tenants in common when one of the parties to the proceeding requests the Court to direct a sale. In her Answer filed in response to the petition, which was heard by Judge Drost the appellant had requested a sale, although she requested that the land be sold in the open market rather than in the manner sought in the petition and which was ultimately ordered. | ||
| In my opinion, Judge Drost had jurisdiction to make the order he made. I must therefore reject the submission of counsel for the appellant, that the appellant was given bad advice by her counsel on her rights under the Partition of Property Act. The authorities upon which counsel relied, Clarke v. Clarke et al., [1989] B.C.J. No. 22, [1989] B.C.D. Civ. 207-02 (B.C.C.A.) and the decision referred to in the case of Treeland Motor Inn Ltd. v. Western Assurance Company, [1984] 2 W.W.R. 285 do not apply in the case at bar. |
| (Emphasis mine) |
Mr. Unterman was unable to assure us that Hersog v. Hersog was brought to the attention of Mr. Justice Legg.
The appellant desired a review of that refusal of an extension of time. Unfortunately, her application was not brought in time and thus she had to apply for an extension of time to bring a notice of review. That application came on for hearing before Mr. Justice Hinkson on 7th September, 1990; he refused it saying in part (Vancouver CA012542, at pp. 4-5):
Again, this application is well out of time under the Rules and again, I am told that when the matter of challenging Mr. Justice Legg's decision was raised with counsel that counsel informed the applicant that the decision of Mr. Justice Legg could not successfully be challenged. It was only belatedly when a judge in chambers in Supreme Court suggested that the applicant should apply for a review of Mr. Justice Legg's decision that the present application was brought.
I am not persuaded that Judge Legg fell into error in the two matters relied upon by the applicant, nor am I persuaded that on the whole of his reasons for judgment there is any basis for considering that review would be meritorious. In the circumstances it is not appropriate nor in the interests of justice to extend the time for filing for a review. Therefore, the application is dismissed.
Here again, counsel is unable to assure us that Hersog v. Hersog was brought to the attention of Mr. Justice Hinkson.
The appeal from the order of Judge Anderson came on before Mr. Justice Hutcheon, Madam Justice Southin and Mr. Justice Taylor on 25th January, 1991, the respondents being represented by Mr. Unterman and the appellant by Mrs. Sturhahn, who is not, of course, legally trained.
Because of the significance in Mr. Unterman's submission of what we then did we set out in full what Mr. Justice Hutcheon, speaking for the panel, said:
| We have a doubt that the order made by Judge Drost was one that could be made under the Partition Act. The petition purported to be under that Act but what the petitioners sought was to expropriate the minority interest of Olwen Armbruster in the property. According to the decision in Hersog v. Hersog (1978), 5 B.C.L.R. 354 the Partition Act does not allow of that remedy to a petitioner. | ||
| Section 8 of the Partition Act under which order appears to have been made, requires that there be "a proceeding for partition". This petition was not a proceeding for partition or for the sale of the property but was for the enforced sale to the petitioners of the interests of Armbruster. Section 8 would not seem to apply. At this point we are not satisfied that the request for sale made in the alternative and in response to the petition would transform the proceeding into that contemplated by the opening words of s. 8. | ||
| We are considering whether we should review the orders of Mr. Justice Legg and of Mr. Justice Hinkson, a review that is available under s. 9(7) of the Court of Appeal Act, R.S.B.C. 1979, c. 7. That in turn involves the question of extensions of time. | ||
| We are in no position to make those decisions today. The adjournment will give time to Mr. Unterman, counsel for the petitioners, to prepare a factum for our assistance on the question of the jurisdiction to make the order that was made and on the question of extensions of time. | ||
| The Partition Act has a long history and we will need to study the cases decided under that Act and similar Acts in other jurisdictions including England. One case for example we will need to study is the case in the House of Lords of Pitt v. Jones (1880), 49 Law Journal Chancery 795. | ||
| This panel is seized of the appeal. We do not propose to put a time limit at this time on the filing of a factum by the petitioners. Once that factum is filed, however, the appellant should file a reply factum within 21 days. In that interval our direction is that the petitioners may obtain a date for the continued hearing of this appeal. That date would necessarily be one after the expiration of the 21 days. | ||
| There will be liberty to apply for any further directions to a single member of the panel. |
On 12th November, 1991 Mr. Unterman filed his factum, making a number of points including that which is now before us which he put thus:
| 5. | It is respectfully submitted that a reasonable person would have grounds to believe that this Panel would not afford a fair and impartial hearing to the Petitioners. | ||
| 6. | The Panel, on its own, raised issues and pre- determined issues without hearing any submissions from Counsel for the Petitioners. |
* * *
| 9. | It would appear from these comments that the Panel has already reached a conclusion as to the disposition of this matter or at least with regard to certain issues. It has raised the issues, done the legal research, and pronounced its view in favour of the Respondent. This would lead a right minded person to think that there is bias. The Panel should disqualify itself. |
The matter was scheduled to be heard on the 20th January, 1992. When it became known on the 17th January that Mr. Justice Hutcheon was unable to be present on the 20th January, the Chief Justice directed that Mr. Justice Goldie should sit with Madam Justice Southin and Mr. Justice Taylor and that we should address only the issue raised in those paragraphs.
What Mr. Unterman says is that for a judge or a panel of judges ex mero motu to invite a litigant to take a certain course based on the judge's knowledge of the law is simply wrong, no matter what the circumstances.
There is here an apparent conflict between two principles:
| 1. | This is an adversarial system. That being so, every judge is generally in the hands of counsel, or where a party is not represented by counsel, in the hands of that party, on the points to be raised and decided. A judge, as has often been said, must not "descend into the arena". | ||
| 2. | A judge has an overriding duty, in the words of the old judicial oath, "to administer justice without fear or favour, affection or ill-will, according to the laws and usages of this realm". To this extent, the judge has a duty to ensure that the law is applied, even though the litigants may not be aware of its requirements. |
The concept of judicial self-restraint, to which we adhere, is founded, if not wholly, at least in part, upon the assumption that counsel will do their duty, which is to do right by their clients and right by the court, and that all parties will be represented by counsel. In this context, "right" includes taking all legal points deserving of consideration and not taking points not so deserving. The reason is simple. Counsel must assist the court in doing justice according to law. When a point is deserving of consideration, the judge must have regard to all the relevant authorities.
As Lord Birkenhead, then Lord Chancellor, said in Glebe Sugar Refining Company, Ltd. and others v. Trustees of the Port and Harbours of Greenock, [1921] W.N. 85 at 86 (H.L. (Sc.):
| It was not, of course, in cases of complication possible for their Lordships to be aware of all the authorities, statutory or other, which might be relevant to the issues requiring decision in the particular case. Their Lordships were therefore very much in the hands of counsel and those who instructed counsel in these matters, and the House expected, and indeed insisted, that authorities which bore one way or the other upon the matters under debate should be brought to the attention of their Lordships by those who were aware of those authorities. That observation was irrespective of whether or not the particular authority assisted the party which was aware of it. |
The Lord Chancellor's remarks arose in the following circumstance. An appeal was argued before the House of Lords in which neither party referred to a provision in an 1847 Act incorporated by reference in the 1913 statute under consideration. After argument Lord Atkinson looked at the 1847 Act and drew one of its sections, which bore on the issue, to the attention of his colleagues. A second hearing was ordered before the same panel confined to the effect of the 1847 provision. It was held to dispose of the issues before the court. In allowing the appeal ([1921] 2 A.C. 66 at 76 (H.L. (Sc.)), Lord Birkenhead concluded:
| The appeal succeeds, not, however, upon the grounds put forward by the appellants, but upon grounds never put forward by the appellants (though they should have been); never alluded to by either of the parties in any Court. It may be that this omission has brought about the entire litigation, certainly I should think it has brought about this appeal. I therefore think that both parties should bear their own costs here and below. |
The term "relevant" in the context of the case before us means that counsel has a duty to be aware of all cases in point decided within the judicial hierarchy of British Columbia which consists of the Supreme Court of Canada, this Court and the Supreme Court of British Columbia, and where applicable, one of its predecessor courts, the County Court, and to refer the court to any on which the case might turn.
It is not necessary in these reasons to go into the exceptions to this duty. It is not the same as the duty to one's client to be persuasive which often requires counsel to produce authorities outside the hierarchy of British Columbia.
But these points must be made:
| 1. | We do not expect counsel to search out unreported cases, although if counsel knows of an unreported case in point, he must bring it to the court's attention. | ||
| 2. | "On point" does not mean cases whose resemblance to the case at bar is in the facts. It means cases which decide a point of law. | ||
| 3. | Counsel cannot discharge his duty by not bothering to determine whether there is a relevant authority. In this context, ignorance is no excuse. |
In the case at bar, there was a relevant authority which went to the very root of these proceedings. It said that the order sought in the petition could not be granted as a matter of law.
Whether Hersog v. Hersog was rightly decided is, of course, for this Court and was not for Judge Drost.
The duty to bring relevant law to the attention of the court is founded upon the proposition that counsel has an obligation to the court to assist in duly administering the law, as well as a duty to his client and that, in some circumstances, the former duty may override the latter.
Because of that apparent failure on counsel's part to bring the law forward before Drost, L.J.S.C., we consider the course followed by this panel was appropriate.
Mr. Unterman has said that the panel appeared to be inviting the appellant to make another stab at an appeal from the order of Judge Drost. He submitted that for a panel hearing one appeal to, in effect, bring forward another appeal, or suggest another appeal, is a bad thing. The question whether that would be proper if the other appeal were in a different proceeding is not before us, because here the potential second appeal would be from an order in the same action as that which was before us. We were considering an appeal from an order made in support of a decision which, on the established authority of Hersog v. Hersog, it seemed to us might very well have been made without jurisdiction.
We are unable to accept that our attempt to have this matter dealt with by counsel for the respondent, the only legally-trained person before us, could reasonably be said to give rise to an apprehension of bias within the meaning of the authorities.
We are satisfied that this matter should be set for completion of the hearing before Mr. Justice Hutcheon, Madam Justice Southin and Mr. Justice Taylor on the first available date.
| SOUTHIN J.A. |
| TAYLOR J.A. |
| GOLDIE J.A. |
DRS