I.  Introduction

II.  Preliminary Matter

60  In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, …[[1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716], at p. 394, is the reasonable apprehension of bias:

… 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."

27  Thus, disqualification is not the natural corollary to a finding that a trial judge has had some involvement in a case over which he or she is now presiding. Where the judge had no involvement, as here, it cannot be said that the judge is disqualified.

28  The point can rightly be made that had Mr. Patterson been asked to represent the appellant as counsel before his appointment to the bench, the conflict rules would likely have prevented him from taking the case because his firm had formerly represented one of the defendants in the case. Thus, it is argued how is it that as a trial judge Patterson J. can hear the case? This issue was considered by the Court of Appeal (Civil Division) in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451. The court held, at para. 58, that there is no inflexible rule governing the disqualification of a judge and that, "[e]verything depends on the circumstances."

29  It seems to me that what appears at first sight to be an inconsistency in application of rules can be explained by the different contexts and in particular, the strong presumption of judicial impartiality that applies in the context of disqualification of a judge. There is no such presumption in cases of allegations of conflict of interest against a lawyer because of a firm's previous involvement in the case. To the contrary, as explained by Sopinka J. in MacDonald Estate v. Martin (1990), 77 D.L.R. (4th) 249 (S.C.C.), for sound policy reasons there is a presumption of a disqualifying interest that can rarely be overcome. In particular, a conclusory statement from the lawyer that he or she had no confidential information about the case will never be sufficient. The case is the opposite where the allegation of bias is made against a trial judge. His or her statement that he or she knew nothing about the case and had no involvement in it will ordinarily be accepted at face value unless there is good reason to doubt it: see Locabail, at para. 19.

30  That brings me then to consider the particular circumstances of this case and whether there are serious grounds to find a disqualifying conflict of interest in this case. In my view, there are two significant factors that justify the trial judge's decision not to recuse himself. The first is his statement, which all parties accept, that he knew nothing of the case when it was in his former firm and that he had nothing to do with it. The second is the long passage of time. As was said in Wewaykum, at para. 85:

  To us, one significant factor stands out, and must inform the perspective of the reasonable person assessing the impact of this involvement on Binnie J.'s impartiality in the appeals. That factor is the passage of time. Most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making.

31  There are other factors that inform the issue. The Wilson Walker firm no longer acted for any of the parties by the time of trial. More importantly, at the time of the motion, Patterson J. had been a judge for six years and thus had not had a relationship with his former firm for a considerable period of time.

32  In my view, a reasonable person, viewing the matter realistically would conclude that the trial judge could deal fairly and impartially with this case. I take this view principally because of the long passage of time and the trial judge's lack of involvement in or knowledge of the case when the Wilson Walker firm had carriage. In these circumstances it cannot be reasonably contended that the trial judge could not remain impartial in the case. The mere fact that his name appears on the letterhead of some correspondence from over a decade ago would not lead a reasonable person to believe that he would either consciously or unconsciously favour his former firm's former client. It is simply not realistic to think that a judge would throw off his mantle of impartiality, ignore his oath of office and favour a client - about whom he knew nothing - of a firm that he left six years earlier and that no longer acts for the client, in a case involving events from over a decade ago.

(emphasis added)

III.  Issue

IV.  Analysis

A.  Standard of Review

B.  Did the Judge err in interfering with the Prothonotary’s Order?

17.  Within the 96 paragraph Statement of Claim, the Plaintiff addresses his complaint in paragraphs 14-24, inclusive. All but four of those paragraphs are dedicated to an incident that occurred in 2006 in and around the legislature in New Brunswick. The jurisdiction of the Federal Court does not extend to Her Majesty the Queen in right of the Provinces. In any event, the Plaintiff hasn’t named the Province or provincial actors as parties to this action. The incident alleged does not give rise to a justiciable cause of action in this Court.

(…)

21.  The few paragraphs that directly address the Defendant provide no details as to the individuals involved or the location of the alleged incidents or other details sufficient to allow the Defendant to respond. As a result, it is difficult or impossible to determine the causes of action the Plaintiff is attempting to advance. A generous reading of the Statement of Claim allows the Defendant to only speculate as to the true and/or intended cause of action. At best, the Plaintiff’s action may possibly be summarized as: he suspects he is barred from the House of Commons.

[footnotes omitted].

[13]  As in both the cases of Odhavji Estate v Woodhouse, 2003 SCC 69 [Odhavji] and Lewis v Canada, 2012 FC 1514 [Lewis], I must determine whether the plaintiffs’ statement of claim pleads each element of the alleged tort of misfeasance in public office:

a) The public officer must have engaged in deliberate and unlawful conduct in his or her capacity as public officer;

b) The public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff; and

c) There must be an element of bad faith or dishonesty by the public officer and knowledge of harm alone is insufficient to conclude that a public officer acted in bad faith or dishonestly.

Odhavji, above, at paras 23, 24 and 28

(Federal Court Judgment at para. 28).

…When pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases such as “deliberately or negligently,” “callous disregard,” or “by fraud and theft did steal”. “The bare assertion of a conclusion upon which the court is called upon to pronounce is not an allegation of material fact”. Making bald, conclusory allegations without any evidentiary foundation is an abuse of process…

To this, I would add that the tort of misfeasance in public office requires a particular state of mind of a public officer in carrying out the impunged action, i.e., deliberate conduct which the public officer knows to be inconsistent with the obligations of his or her office. For this tort, particularization of the allegations is mandatory. Rule 181 specifically requires particularization of allegations of “breach of trust,” “wilful default,” “state of mind of a person,” “malice” or “fraudulent intention.”

(at paras. 34-35, citations omitted).

V.  Conclusion