Decision coming on status of judge

'Apprehension of bias' may cloud case

Barbara Brown
The Hamilton Spectator

(Nov 11, 2009)

A lawyer for the Ontario government is urging a federally appointed judge to recuse himself from a $12-million civil action filed by a Caledonia couple who claim the province and OPP failed to uphold the law after native protesters forcibly occupied the disputed Douglas Creek Estates.

Crown counsel Dennis Brown argued a three-year solicitor-client relationship between Superior Court Justice Thomas Bielby and Hamilton lawyer John Evans about 14 years ago could create an "apprehension of bias" and the judge ought to remove himself from the case.

Evans currently acts for the plaintiffs, David Brown and Dana Chatwell, who live next door to the contentious former subdivision on Argyle Street South.

In 1995, Evans was hired by the Lawyers' Professional Indemnity Company (now called LawPro) to represent Bielby, then a Brampton lawyer, on a negligence complaint. The matter was settled out of court in Bielby's favour in 1998. Evans said he may have met Bielby once but can't recall the circumstances today or particulars of the file.

Brown argued the trial will be sensitive for the government because it deals with how it handles native land claims and protests. He said the case will be followed by aboriginals and non-aboriginals alike because of the public interest in the events in Caledonia, which drew national headlines in 2006 when protesters barricaded the town's major thoroughfare and blocked entrance to the subdivision.

Brown said any suggestion of bias on the part of Bielby could influence public opinion "and cast a shadow over the integrity of the judge's decision."

He said the native protest which led to the lawsuit has unfolded "against a backdrop of historical injustices, as well as in the shadow of Ipperwash."

Brown was referring to the public inquiry into the death of Dudley George, who was shot in 1995 during a protest by First Nations people at Ipperwash Provincial Park.

But lawyer Michael Bordin, who also acts for the Caledonia couple, said the test for a reasonable apprehension of bias was that it had to be substantial.

He said, "It's not a case of the tiniest apprehension of bias, or, the tiniest whiff of a problem -- that is not the test."

The lawyer argued his client's case was not about how aboriginal people perceived their treatment by the province, but how Brown and Chatwell were treated by their government and the OPP.

Bordin pointed to the testimony during examination for discovery in which OPP Commissioner Julian Fantino admitted under oath that the unlawful conduct his clients complained of -- and that was ignored by police -- could not be viewed as "peaceful protest" or assertions of a valid land claim.

"Threatening to kill somebody for some bad behaviour is unlawful intimidation," lawyer John Evans had asked Fantino.

"Yes," replied the commissioner.

"It's likely to cause fear," continued Evans.

Again, Fantino agreed.

"And it's an act for which, if it was reported, the police have a duty to attend and investigate, right?" asked the lawyer.

"Normally, yes," said Fantino.

Bielby has reserved his decision on whether to recuse himself until the case resumes tomorrow.