A physician began selling prenatal paternity tests to the public in 2001. The test was touted as being non-invasive, as it required only a sample of the mother’s blood and not tissue from the fetus itself. In December 2010, a magazine wrote an article about the test following eighteen months of research and investigation. The findings described the test as being unreliable. The physician commenced an action against the magazine claiming damages for defamation.
The trial lasted fourteen (14) days. It was a bitterly fought affair with a very tight schedule. The defendants led evidence that the physician lacked the proper expertise to develop the test, that the test had not been properly validated, it ran on flawed methodology and most critically, that the test provided inaccurate results for several patients. The physician’s response was a bold assertion that his test was scientifically sound and that the magazine's investigation and findings were motivated by malice. The trial judge concluded that the defence had satisfactorily established the defences of justification, fair comment, responsible communication and qualified privilege and dismissed the action. To add insult to injury, the costs award made against the physician was for $1,478,766.64. The doctor appealed the decision to the Ontario Court of Appeals (ONCA).
The original notice of appeal listed twenty-five errors of law and fact. After the costs award was made, the physician filed a supplementary notice of appeal alleging errors in the costs award as well. These were both filed by trial counsel. A third notice of appeal was filed by the doctor’s new appeal counsel. It withdrew all of the errors delineated in the first two notices of appeal and instead relied on a suggestion of bias leading to the appellant not having a fair trial. The appellant attacked the conduct of the trial and the reasons for the decisions, in particular, claiming that they indicated a reasonable apprehension of bias on the part of the trial judge.
The ONCA began by setting out the principles and tests by which bias is to be evaluated. Those statements are as follows:
It is key that any allegations of bias must be raised as soon as possible in order to protect the integrity of the court. Such allegations must not be held in reserve to be used tactically if a decision does not go the complainer’s way. The genuineness of the apprehension is likely to be considered suspect when it is held in reserve. The ONCA did recognize that where the trial judge's decision and reasons are needed to support the allegation of bias that an appeal may be the earliest time to raise it.
The problem here for the appellant doctor was that his trial counsel had filed two notices of appeal that did not contain any mention of bias. In addition, there was no affidavit evidence from the doctor or his counsel that they held a subjective apprehension of bias during the proceedings. Although the test is objective, such evidence would help to explain and support the allegations of bias. Here, the doctor's approach was found to be tactical only and the appeal was dismissed.
Raising an apprehension of bias with respect to a court or decision is a serious allegation that should be reserved for cases where the bias can be clearly established and should be raised as soon as possible. Any failure to do so may indicate that the allegation is being made only to favour the claimant, which will seriously undermine the claimant's case.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.