Reasonable apprehension of bias, @CaringSociety and definition of “First Nations child”, and the Judicial Council

Update: I recently started my own practice and I will be scaling back the weekly posts to monthly posts. I expect this to increase the consistency in sharing administrative law cases. I hope you can continue to enjoy the twitter account here and say hello to the @IndigiBot! You can contact me directly here. You can subscribe here.

Children’s Aid Society of Oxford County v. E.M.T., 2019 ONCJ 427

This is a motion brought during trial for an order that the judge recuse himself as presiding judge by the respondent (MAR). MAR argued that the court’s intervention into examination of the Society’s worker and subsequently, replying on her answers in his ruling created a reasonable apprehension of bias (“RAB”). The test for RAB is whether “the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case” (para 23). The case highlights that RAB also affirms that the reasonable person must be an informed person and “should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community” (para 23). The case held that while a judge should not intervene in counsel’s presentation of the evidence, cases involving children or a child’s best interests, a trial judge can play a more active role than in ordinary civil litigation (paras 28-28). The judge relied on case law and legislation to hold that a judge can take a more active role. The judge held that his intervention, from the reasonable person, was not excessive, did not convey partiality or suggest prejudgment, and counsel did not intervene (para 42), among other things. The judge dismissed the motion.

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 7

This is an order to clarify the definition of “First Nations child” by the applicant, First Nations Child & Family Caring Society of Canada. Specifically, the applicant makes a motion for further relief to ensure that the Tribunal’s orders (four in total) are effective especially on the definition of “First Nations child”. The basis for this request is a case where the applicant intervened to pay for medical transportation for a young First Nations’ child without Indian Act status who required a medical diagnostic service to address a life-threatening condition. Canada would not pay due to the child’s status. The matter was resolved but the applicant’s highlighted the case as an example. The Tribunal ordered that Canada shall provide such children living off-reserve who have urgent and/or life-threatening needs but not have (and are not eligible for) Indian Act status with the services required to meet those urgent and/or life-threatening service needs pursuant to Jordan’s Principle.

Canada (Judicial Council) v. Girouard, 2019 FCA 148

This is an application for judicial review by the Judicial Council. The application sought to have a federal court judgment that dismissed the Council’s motions to strike the applications for judicial review filed by the Hon. Justice Michel Girouard (Justice Girouard). The federal court judgment subject of the application held that Council’s investigative powers do not derive from the Constitution (they come from the Judges Act), and such powers belong to the Council as an institution, not to the chief justices individually, among other things. The standard of review is a standard of correctness. The Court of Appeal agreed with Justice Girouard in that if the Council did have judicial powers (similar to that of superior courts), Parliament would not have conferred on them, the powers and immunities enjoyed by superior courts (para 55). Further, not all of its members are superior court judges within the meaning of the Constitution (para 78). The Court of Appeal agreed that the Judges Act has a “limited scope” and does not grant Council “attributes of a superior court” (para 96). The Court of Appeal dismissed the application.

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