July 12, 2017
Thibault, Bich, Bouchard
Application for leave to appeal from a judgment of the Superior Court rendered in the course of a proceeding that dismissed an application for recusation. Dismissed.
The applicants and the respondent are parties to three pending proceedings in connection with a construction contract. The hearing of the case was set to span five days. At the start of the second day of the hearing, the applicants presented an application for recusation, which was dismissed after a short deliberation. The applicants claim that they are required to seek leave within thirty days of the impugned judgment, basing themselves on articles 31 and 205 of the Code of Civil Procedure (C.C.P.) and FTQ-Construction v. Lepage (C.A., 2016-09-01), 2016 QCCA 1375, SOQUIJ AZ-51319580, 2016EXP-2975, 2016EXPT-1716, J.E. 2016-1604, D.T.E. 2016T-730. The respondent argues that such a judgment must be appealed at the same time as the final judgment. The applicants wish to rely on facts subsequent to the judgment on the application for recusation to prove the judge’s bias.
A judgment on an application for recusation rendered in the course of a proceeding must be appealed by an application for leave to appeal filed with the clerk of the Court of Appeal and submitted without delay before an appellate judge. The term “without delay” in articles 31 and 357 C.C.P. is not defined in the Code, but commentary from the Minister of Justice reveals that the application must be presented as soon as possible. Therefore, the parties must seek leave to appeal from a judgment on an application for recusation within thirty days of the notice of judgment or, if it was rendered at the hearing, the date of judgment, not at the same time as the final judgment. As for whether a party may rely on facts subsequent to the judgment on an application for recusation, as a general rule, such facts may be raised through a motion to adduce fresh evidence when the party is able to establish that the conditions are met. In this case, the applicants have not presented such a motion, but it is in the interests of justice to consider the subsequent facts pleaded. These facts are concurrent with and closely related to the allegations made in support of the application for recusation. Moreover, neither party will suffer harm if they are considered in appeal. On the contrary, dealing with them immediately is consistent with the rule of proportionality, since otherwise these facts could be the subject of another application for recusation. As for the reasons that allegedly prove the judge’s bias, the applicants’ vague and imprecise allegations do not meet the standard that would permit a reasonable and informed person to conclude that the trial judge was biased.
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