Motion for recusal denied. The Plaintiff’s asserted their rights as Métis Acadian Mi’kmaq as justification for filing a claim for damages in the creation of the Kouchibouguac National Park. Their allegations of bias and apprehension of bias towards this claim by this Court were without merit.
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The Plaintiff’s filed a claim stating that between 1969 and 1971, the Province of New Brunswick expropriated the lands of residents in Northern New Brunswick and transferred these lands to Canada for the creation of the Kouchibouguac National Park. It stated that the Park was not Crown land, and the Plaintiffs held Métis rights and title regarding the Park and therefore, damages were sought on numerous grounds. The Plaintiffs claimed rights as Métis Acadian Mi’kmaq who come within the meaning of s 35 of the Constitution Act, 1982.
After the hearing, the Plaintiffs filed a motion seeking recusal on allegations of a reasonable apprehension of bias. It was alleged that the exchange with counsel caused them to be of the view that the Court was biased (Commanda v Algonquins of Pikwakanagan First Nation, 2018 FC 606).
Every Canadian has the constitutional right to have their issues decided by a fair and impartial judge, and allegations of bias and recusal motions strike at the core of judicial integrity (R v RDS, [1997] 3 SCR 484). The test to determine a reasonable apprehension of bias is to ask, “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude” (Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369). The objective for the Court is not just to ensure the process is fair; it is also to grant the appearance of a fair process (Yukon Francophone School Board Education Area No 23 v Yukon Territory (AG), 2015 SCC 25). The onus to establish reasonable bias is a “real likelihood or probability of bias” which is a high standard.
This Court determined that a reasonable, right-minded and informed person would view the comments at issue in this motion as encouraging the Plaintiff’s counsel to point to relevant evidence and to get to the point if there was a point to be made. The Plaintiffs’ perception of the comments demonstrates a view of the words used in isolation, detached from the hearing in which they occurred, with a special subjective sensitivity. This subjective sensitivity is inefficient to meet the objective test for a reasonable apprehension of bias.
The Plaintiff’s allegation does not give rise to bias or a reasonable apprehension of bias. To the contrary, the record is clear that the Court had an open mind to the Plaintiffs’ submission. After reviewing the judicial comments made during the hearing, it was determined that there was no reasonable apprehension of bias. Therefore, the Plaintiff’s allegations of bias and apprehension of bias were without merit, as the Court had an open mind to their submission.