In the same proceeding discussed above, the original Hearing Judge had recused himself from sitting on the matter of redetermination (this case is summarized in our June 28, 2010 Bulletin). Janssen appealed that decision. The Court of Appeal upheld the recusal.
The Court of Appeal held that the decision was remitted to the Judge with the implicit expectation that his judicial function would be performed impartially. “A judge cannot be faulted for recusing himself when he lacks the fundamental qualification at the heart of impartiality”. The Court of Appeal thus accepted the Judge’s determination and had no basis upon which to doubt it.