Law Times

Page 4 November 24, 2014 • Law Times www.lawtimesnews.com Judge criticized for appearance of bias against Toronto lawyer By yamri Taddese Law Times Superior Court judge created an ap- pearance of bias when he said a lawyer's evidence was "gobbledygook" and made questionable midtrial orders against him, the Ontario Court of Appeal has found. John Faraci, a lawyer who's in a commercial dispute with Yorkville shopping centre Hazel- ton Lanes Inc., will get a second chance to argue his case before a different judge after the appeal court found Justice Ted Matlow's conduct during the trial made the process unfair to him. "For the reasons that follow, I conclude that, when con- sidered cumulatively, the trial judge's conduct of the trial creates an appearance that he prejudged Faraci's conduct and credibility and aligned him- self with the respondents on the issue of mid-trial production in a manner that rendered the trial unfair," wrote Justice Janet Simmons on the ap- peal court's behalf. The dispute between Hazelton Lanes and Fara- ci involves claims of rental arrears for his law firm. Faraci, who had a three-per-cent ownership in Ha- zelton Lanes, says he had a rent-free arrangement for office space in the building. According to the ruling in Hazelton Lanes Inc. v. 1707590 Ontario Ltd., Faraci claims Stephen Chan, "the directing mind of Hazelton," directed that he bill him for services in an amount equivalent to the monthly rent stipulated in the lease and use the payments on the account to pay the rent. But Faraci and Chan's relationship later deteriorated. When the lawyer was testifying in November 2012, Matlow made interjections that jabbed at his credibility. "In my view, an informed person, viewing the trial judge's conduct realistically and practically, would reasonably conclude that at least three as- pects of that the trial judge's conduct, taken togeth- er, give rise to a reasonable apprehension of bias," wrote Simmons. In addition to the comments the judge made about Faraci's evidence being "gobbledygook," Matlow also suggested the plaintiff 's counsel should bring a Mareva injunction against him. The appeal court also said the judge made a finding of contempt against Faraci for failing to comply with all of the 19 directions for midtrial production of masses of documents without ana- lyzing their probative value. "As I have said, my re- view of the trial judge's mid-trial directions leads me to conclude that their breadth, scope and lack of relevance to the issues at trial contributes to a reasonable apprehension of bias. His willingness to invoke the quasi-criminal remedy of contempt in relation to those directions only adds to that ap- pearance," wrote Simmons. "Moreover, in the circumstances of this case, the trial judge's failure to consider Faraci's evi- dence and his failure to conduct a direction by di- rection analysis of compliance suggests more than mere inadvertence or misapprehension. Rather, his treatment of the issue demonstrates he had be- come aligned with the respondent." According to University of Montreal law Prof. Paul Daly, the bar is high for a finding of a reason- able apprehension of bias. Such a finding requires "an accumulation of adverse comments and ac- tions" by an adjudicator, he says. In Hazelton Lanes, the appeal court had three major actions it could rely on, says Daly, who notes the trial judge's suggestion that the plaintiff 's counsel should make an application for a Mareva injunction was "pretty exceptional." But from lawyer Christopher Horkins' perspec- tive, the Mareva suggestion wasn't exceptional at all. The judge offered the suggestion as an alterna- tive to a midtrial costs motion the plaintiffs had brought, says Horkins, who notes adjudicators of- ten make such suggestions for efficiency reasons. "Looking at the facts of this case, I'm not sure ultimately that I agree with the Court of Appeal's decision," says Horkins, an associate in the advo- cacy group at Cassels Brock & Blackwell LLP. While the excerpts of the comments made by the trial judge may seem extreme after the fact, "I don't know that they go to the level of being evi- dence somebody would [use] to conclude he is pre- disposed against them," he adds. The appeal court's decision may have the unin- tended consequence of encouraging litigants who are on the receiving end of interim orders to bring an appeal on grounds of reasonable apprehension of bias, says Horkins. LT Courts urged to reconsider laws around kinky sex By yamri Taddese Law Times t was all kinky talk at the University of Toronto earlier this month when a panel of experts discussed bondage and dominance in the context of Canadian law. The Nov. 13 discussion fol- lows the allegations against Jian Ghomeshi and the intense pub- lic interest in how the courts treat issues like bondage, domi- nance, and submission where the activities have resulted in injury. According to University of Toronto Faculty of Law Prof. Hamish Stewart, consent is ir- relevant if someone suffers a "non-trivial" bodily injury dur- ing such activities. That's because in 1995, the Ontario Court of Appeal in R. v. Welch found consent to bond- age "could not detract from the inherently degrading and dehu- manizing nature of the conduct." "Although the law must rec- ognize individual freedom and autonomy, when the activity in question involves pursuing sex- ual gratification by deliberately inf licting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour," the court said. The decision followed R. v. Jobidon, a Supreme Court of Canada ruling that found con- sent was irrelevant in the con- text of a fist fight that led to the death of one of the participants. To Stewart, the law as it relates to bondage could use reconsid- eration. "I don't find the reason- ing satisfactory at all," he said of Welch, adding there wasn't a lot of argument in the case about why an activity would be dehu- manizing if someone had con- sented to it. Stewart added the courts should hear evidence about bondage culture before they make an informed decision. Andrea Zanin, a bondage educator and author of the blog Sex Geek, agreed. "You know how it didn't work to make gay illegal? It wouldn't work to make kink illegal," she said. The courts make exceptions to consensual bodily harm in the context of sports and other activities known to have "social utility." But in Welch, the appeal court saw no social use in bond- age sex, something that could be subject to a challenge in the future. According to Kyle Kirkup, a Trudeau scholar at the Univer- sity of Toronto law faculty, Can- ada has "a long and misguided history of using the heavy hand of the criminal law to target non-normative sexualities." But it's also important to con- sider Canada's historic failure to treat gender and sexual vio- lence seriously, said Kirkup, adding bondage has sometimes served to mask male violence. The complexity of making laws around bondage could be "symptomatic of much larger contradictions in the crimi- nal law," he said. "These are contradictions that cannot be papered over but rather must be critically engaged, exposed, ex- plored, and acknowledged." Some bondage practitioners use detailed written contracts about their sexual relationship and the limits around them, said Zanin, adding that's perhaps something that could help with producing evidence on consent. Last year, nearly a decade af- ter Welch, the Ontario Court of Appeal rendered another deci- sion around bondage that seems to distance itself from the origi- nal ruling. "The social utility of inti- mate sexual relationships is sig- nificantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sex- ual context as suggested by the ruling in Welch," the court said in R. v. Zhao, leaving open the possibility of challenging Welch in the future. LT NEWS Let the experts help you to narrow your search and save you research time. Canadian Patent Reporter has been Canada's leading intellectual property law report since 1942. This renowned resource, available online and in print, includes precedent-setting intellectual property law judicial and board decisions from across Canada. 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