Recusal Refusal
In Rana v. Rana, 2021 ABCA 399, Mr. Rana unsuccessfully appealed a case management judge’s decision to not recuse himself from Mr. Rana’s lawsuit. In the underlying litigation Mr. Rana had brought an application against his brother, who was acting as the power of attorney for their mother. A case management judge was assigned to hear the proceedings, however, Mr. Rana wanted this particular judge removed. After his application to remove the judge was denied, the Alberta Court of Appeal reviewed that decision.
The Applicable Law
The Court reviewed the law decisions on recusal as follows:
13 Every judge is required to be and is presumed to be impartial, which means approaching each case to be decided with an open mind: Wewaykum Indian Band v Canada, 2003 SCC 45 at para 58. A party arguing for the recusal of a judge bears the burden of establishing that the circumstances justify it. The criterion is whether the circumstances give rise to a reasonable apprehension of bias on the part of the judge. The Supreme Court has defined a reasonable apprehension of bias as follows:
. . . 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, the test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude . . . “.
Reasonable Apprehension of Bias Not Found
The Court held the case management judge’s “pattern of communication” did not give rise to a reasonable apprehension of bias.
The Court rejected Mr. Rana’s arguments in turn.
Mr. Rana argued a letter where the case management judge stated Mr. Rana could discontinue the litigation if he no longer wished to pursue it, did not raise a reasonable apprehension of bias. Litigation had been ongoing for four years, Mr. Rana was a self-represented litigant, and the case management justice was providing information he may not have known.
Further, part of an order made by the case management judge that directed the applications proceed without questioning did not give rise to reasonable apprehension of bias in the context. The direction was found to be reasonable by the Court for many reasons, including that Mr. Rana had rejected at least ten proposed questioning dates without a reasonable excuse.
Further, the Court rejected Mr. Rana’s argument that another order made by the case management judge raised a reasonable apprehension of bias. Mr. Rana had filed a statement of claim, and the case management judge was required to review the claim on its merits. His conclusion that the statement of claim was without merit was a reasonable decision.
This case demonstrates the law on recusal and provides context for what might not amount to a reasonable apprehension of bias.
