As a family lawyer, I am often asked about applying to disqualify a judge or master because my client was not happy with a previous decision that particular judge or master. Often clients allege judicial bias as a basis to disqualify the adjudicator.
My response is almost always the same: “it is very difficult to disqualify an adjudicator. Our judges and masters of the court are trained professionals who listen to your evidence, read your materials, and make a determination based on the facts and case law before them and not based on their personal opinion”.
Subject to the reasons for seeking qualification, I generally tell my clients that it is waste of their time and money, and court’s resources to apply to disqualify an adjudicator. However, having that said, there may be times where it is warranted to ask to disqualify a judge from a hearing.
How to disqualify a judge or master from hearing your case?
You will need to go before the judge that you want to disqualify and ask for an order that (s)he withdraws from hearing any applications in your divorce case or family law case. In Boardwalk REIT LLP v. Edmonton (City), 2008 ABCA 176, the Alberta Court of Appeal stated:
[l]ittle case law expressly discusses the appropriate procedures for making a disqualification motion. Nevertheless, the Canadian practice seems uniform. The practice is for the impugned judge (or judges) to rule on the motion that he or she (or they) withdraw from hearing or deciding the case.
You can file a notice of application (notice of motion, if you are in provincial court), if you know who is going to your judge, in advance of the hearing. In your notice of application or notice of motion you will ask for an order that the judge/master recuse herself/himself from hearing your case. Otherwise, if you find out on the day of your hearing who the judge is, you will need to seek leave on the day of the hearing to ask for an order for the judge or master to recuse herself/himself from hearing your matter.
Often times, if the judge or master thinks there may be possibility of conflict, they will bring it to your attention or they would disqualify themselves automatically. Just to give you an example, in one of the cases that I was co-counsel, the judge had attended a wedding with the opposing counsel. The judge, in that case, advised both parties at the outset and asked if the parties had any issues with that. In another case, the judge automatically disqualified himself because he was previously affiliated with the opposing counsel’s firm and had close relationship with the opposing counsel.
In another case that I was involved with, the master had presided over the parties’ JCC (Judicial Case Conference) and disqualified herself from hearing the application that was before her. Often times, presiding over the FCC (family case conference) or JCC (judicial case conference) gives rise to a claim to disqualify a judge from hearing applications or the trial because it defeats the purpose of the FCC or the JCC. The purpose of the FCC or JCC is to allow parties to have open and without prejudice conversations about settling their case and the statements made at the FCC/JCC is not be used later in court.
So just to summarize, if there is a possibility of misapprehension of bias, the court will generally inform you about it and seek your consent or the judge would automatically recuse himself/herself from hearing your family law or divorce case without the need for you to bring an application to disqualify a judge.
What is the legal test for disqualifying a judge or master?
However, if you feel like you have to bring an application to disqualify a judge, the legal test for disqualification is:
What would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? Would this person think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly? The Court added that [w]hether there is a reasonable apprehension of bias is to be assessed from the point of view of a reasonable, fair minded and informed person.
Wewaykum Indian Band v. Canada, 2 S.C.R. 259, 2003 SCC 45
In the recent case of A.B. v. C.D. and E.F., 2019 BCSC 1057, the honourable Madam Justice Marzari was asked (by the father) to recuse herself from hearing an application for breach of protection order. The applicant father alleged that the court’s past affiliation with West Coast LEAF, a non-profit organization, gave rise to reasonable apprehension of bias. In support of his application to disqualify the judge, the father stated both the child’s former counsel and the child’s mother had affiliation with this organization.
The court dismissed the father’s application, but only after a thorough review of the law about disqualify a judge. The court stated as follows:
…The test requires that I consider whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that my past affiliation with West Coast LEAF gives rise to a reasonable apprehension of bias: see Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 [Yukon].
There is a strong presumption of judicial impartiality that is not easily displaced: Yukon at para. 25. The party alleging bias faces a high burden, the grounds for recusal must be serious and convincing, and the party arguing for recusal carries the burden of establishing the circumstances to justify disqualification: D.M.M. v. T.B.M., 2011 YKCA 8 as cited in N.R.G. v. G.R.G., 2017 BCCA 407 at para. 66.
A judge who is too eager to recuse oneself without an adequate evidentiary basis to establish a real apprehension of bias could damage the public respect for the administration of justice. Not only does it contribute to delay in proceedings, but it impacts greatly on the issue of whether justice is seen to be done and the integrity of the justice system: See R. v. S. (R.D.),  3 S.C.R. 484 at para.113.
Judges are entrusted with the duty of carrying out their judicial duties with integrity and impartiality. Acceding too quickly to suggestions of bias encourages parties, and the public, to believe that a different judge would be more likely to decide in their favour. Judges are expected to, and do, take their oaths when they become judicial officers very seriously. This is why the threshold for proof of bias is high. To quote Justice Cory in R. v. S. (R.D.), at para. 116:
116 Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfillment of a life’s dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high.
In cases, as in this case, where it is not any specific conduct during proceedings, but a judge’s background and organizational affiliation that is alleged to give rise to bias, the Yukon case sets out where a judge must recuse themselves.
In Yukon, the Yukon Francophone School Board sued the Yukon government for deficiencies in the provision of minority language education. The trial judge’s impartiality was called into question after he ruled in favour of the school Board on most issues.
The issue of the trial judge’s significant prior involvement in the provision of minority education before he became a judge was not before the Supreme Court of Canada. The Court of Appeal concluded that the fact the judge was highly active in the francophone community and actively contributed to the greater provision of francophone education before becoming a judge did not raise a reasonable apprehension of bias. Quite the opposite, in fact, as the appellate court considered the judge’s experience a “positive attribute” as it allowed him to approach the issues with important insights gained from his experience: see para. 181.
What was of concern to the Court of Appeal was that the trial judge was associated with and acted as a governor of a philanthropic francophone community organization in Alberta while he was a judge. However, the Court of Appeal’s finding that his current involvements gave rise to a reasonable apprehension of bias was overturned by the Supreme Court of Canada in Yukon. Justice Abella, for the Court, wrote:
Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one.
Impartiality thus demands not that a judge discount or disregard his or her life experiences or identity, but that he or she approach each case with an open mind, free from inappropriate and undue assumptions. It requires judges to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies:
In considering whether the trial judge’s active affiliations met the test for disqualification, Abella J. continued at para. 59:
[Judges] should not and cannot be expected to leave their identities at the courtroom door. What they can be expected to do, however, is remain, in fact and in appearance, open in spite of them.I find the following observations by Lord Bingham of Cornhill C.J., Lord Woolf M.R. and Sir Richard Scott V.-C. in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.,  Q.B. 451 (C.A.), to provide a persuasive instructional template on how to view the relationship between a judge’s identity, organizational affiliation, and impartiality:
We cannot conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers. By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case;.[Citations omitted; para. 25.]
(See also S. (R.D.), at paras. 38-39, per L’Heureux-Dub and McLachlin JJ.)
Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. We expect a degree of mature judgment on the part of an informed public which recognizes that not everything a judge does or joins predetermines how he or she will judge a case. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.
If you are faced with a situation where you have to apply to disqualify a judge from hearing your divorce of family law case, it is best to retain a lawyer who knows the legal test that you need to meet and can prepare the proper evidentiary basis for your application to disqualify a judge. This is a highly technical area of law and a very difficult application to bring. Your counsel needs to be able to properly advise you whether it is wise to bring such an application. You need a lawyer who will give your proper advice. If you need legal help in your divorce of family law case, contact our seasoned lawyers for initial consult.