Justice Perell of the Ontario Superior Court was recently given pause in the midst of a certification motion in Davidson v Canada (Attorney General) when he expressed concern that a written submission made by counsel could have led an objective observer to reasonably apprehend that he had pre-judged the motion before it had been completed. While the motion has now moved forward, with Justice Perell continuing to preside, Justice Perell’s brief endorsement provides a cautionary tale for counsel with respect to making submissions in ongoing class proceedings.

In this case, an initial hearing was held to determine whether the proposed class action met the requirements of the first of five certification criteria set out in section 5(1) of the Class Proceedings Act. Justice Perell held that the first criterion was satisfied, and the parties were then invited to make written submissions in advance of further hearings with respect to the remaining four certification criteria.

Justice Perell’s Concern Regarding Appearance of Bias

The plaintiff submitted a factum that concluded its overview with the following statement: “As this Court noted during a previous hearing, this action is precisely the type of human rights discrimination case which is ideally suited to proceed as a class action”. While the defendant did not raise an objection to this statement in its responding submissions or at the commencement of the hearing, Justice Perell became concerned that the statement might suggest that he had already decided the certification motion in its entirety before the second phase had concluded.

Justice Perell asked the plainitiff to advise when he had made the statement that was attributed to him in the plaintiff’s factum. He was advised that, in fact, the comment was not accurately reported both in its content or in its context, which had been a passing comment that sexual harassment and discrimination class actions have unique provisions under the U.S. class action regime. He found that his actual comment would not raise a reasonable apprehension of bias nor would it suggest that he had pre-judged the other certification criteria.

Lost Hearing Time and Adverse Cost Consequences as a Result

In these circumstances, Justice Perell adjourned the motion and directed counsel to obtain instructions as to whether their clients wished to bring a recusal motion to have him removed from the proceeding. The hearing resumed the following day, at which time both parties advised that they were prepared to proceed with Justice Perell as the presiding judge for certification. However, because a significant amount of hearing time had been lost, the plaintiff requested an adjournment. Justice Perell granted the adjournment, and also allowed the defendant to reserve the right to claim costs for the wasted hearing.

A Cautionary Tale for Litigants Regarding Statements of the Court

The procedural hiccup provides a cautionary tale for litigants. In making oral or written submissions, counsel need to be extremely careful to accurately record statements of the court on which they wish to rely and must ensure that such statements are summarized accurately in any further court materials. Taking detailed notes during the course of hearings and obtaining transcripts where possible can aid in avoiding potential issues, such as the recusal of the judge presiding over the action, or an adverse costs award. The failure of counsel to do so will be embarrassing at the least, and may result in an adverse cost award and potential loss of goodwill with the presiding judge.

Where one party may have inaccurately attributed a statement to the court, the opposing party should carefully consider whether and how it might raise an objection. Justice Perell remarked on the difficulty for counsel of raising the appearance of bias of the court when he noted that the defendant “had made no objection in its factum to the statement, but that is understandable because it’s a hard allegation to make against a judge particularly during the course of a hearing”. If there is a concern that counsel has not accurately recorded a statement of the court, counsel should first raise the concern with opposing counsel, giving opposing counsel an opportunity to correct the statement before the materials are filed with the court or, if that is not practicable, at the commencement of the hearing. In many cases, discussion between counsel, while reserving rights with respect to matters such as costs, can lead to an acceptable resolution of the issue for all involved.