November 12, 2009 Hamilton Spectator
The judge hearing a $12 million civil suit launched by a Caledonia couple against the proviince and OPP has refused to withdraw from the case.
Superior Court Justice Thomas Bielby today refused to recuse (withdraw) himself as requested by the lawyer for the Ontario government. The suit claims 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 Justice 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.
But Justice Bielby Thursday morning refused to withdraw, saying a breif professional relationship with Evans would not affect his impartiality. the Crown said he will appeal that decision.
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."
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.