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Judge’s Conduct During a Hearing Can Lead to Finding of Reasonable Apprehension of Bias

January 21, 2016

A case in Newfoundland and Labrador, Cabana v. Newfoundland and Labrador, 2014 NLCA 34, once more emphasized the need for an impartial judge – and went so far as to take a judge’s grouchiness into consideration. 

The case originally focused on the commencement of a hydro-electric project, which Cabana felt should not have begun prior to a public referendum. A public referendum was not held, and approval was not given for the project in this way, making the project unlawful. Cabana was asking for an interim declaration that would stop the development; however, during this initial process, Cabana also initiated an action against the judge, requesting that she recuse herself from the case. As Cabana did not have a civil lawyer representing him, when the judge instructed him to present information, he was not clear on what kind of information he was supposed to present, and instead drew on her past donations and political affiliations. She heard his evidence, and decided not to recuse herself. 

The Newfoundland and Labrador Court of Appeal decided that Cabana’s evidence did not prove that the judge displayed a reasonable apprehension of bias; however, in examining the behavior on the part of the judge throughout the hearing, the appeals court found that her responses to the evidence brought against her showed bias, and decided to set aside the decision reached on the interim declaration regarding the hydro-electric project, and also ordered a different judge preside over hearings or other matters including Cabana.   

Interactions between the appellant and the judge from the court document:



Q.        … It seems to me that you spent a great deal of energy on the weekend researching my prior life and you now want to seek to rely on political donations that were either made by me personally or that are being made or have been made by my husband’s firm as part of the assertions relative to the impartiality claim.


Q.        … Now I want to caution you, Mr. Cabana, that I think you’ve crossed the line here, okay?


Q.        … While judges are subject to appropriate scrutiny, what I expect from you and from all the counsel that are here from you today and every day is a focus on what’s relevant … .  So when documents are forwarded to the Court or when statements are made that become vexatious, scandalous or embarrassing, there are consequences, but if somebody gets out of line in a courtroom, there are other types of consequences … .  Findings of contempt can be made. …


Q.        I want you to treat this as a warning from me …


Q.        … I’m not going to entertain any reference from you of contributions made by anybody to political parties as far back as 1996 …  I became a Justice of this Court in March of 2007 and I consider these types of things to be irrelevant, pre-appointment matters that suggest  ̶  I’m going to say suggest for the moment – a vendetta.  Okay, and this is where I think you crossed the line.


Q.        A vendetta.  So that’s where I think you crossed the line, so do not in your arguments or any further submissions that you are going to make on this issue of impartiality, get into that, …


In 2016, Cabana was in court again in order to reach a decision regarding costs. He argued that, though he did not have a lawyer representing him and was not out on costs regarding representation, the amount of time spent on court appearances made him lose work; it also cost him as he was preparing submissions, traveling, and had interest on money borrowed to finance the proceedings. As a result of this, Cabana was asking for $95,462.43. The court evaluated the costs and granted Cabana $25,360.94, in addition to $2000 for his costs application. 

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