by Written on behalf of Wise Health Law December 20, 2019 3 min read

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 Doctor Alleges Malice as Magazine's Motivation

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).

Alleging Bias on Appeal

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.

Bias Principles and Tests

The ONCA began by setting out the principles and tests by which bias is to be evaluated. Those statements are as follows:

  1. As established in the previous ONCA decision of Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (2016), the doctor had the onus to establish that an informed person viewing the matter realistically and practically - and having thought the matter through - would conclude that it was more likely than not that the trial judge, whether consciously or unconsciously, would not decide the matter fairly;
  2. The doctor had a heavy burden to overcome the strong presumption of judicial impartiality also based on Stuart Budd & Sons;
  3. An apprehension of bias should be raised as soon as it is reasonably possible to do so based on the decision of the Supreme Court of Canada (SCC) (1997) in R. v. Curragh Inc.

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 Appellant's Conduct Indicated Tactical Intentions

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.

Takeaway for Litigants

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.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in a variety of health-related litigation claims and appeals. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.



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