August 31 – Reasonable Apprehension of Bias

“Second, and importantly, we have examined the comments of the trial judge attacked by the appellant.  In our view, in the circumstances of this trial and having regard to the demonstrated conduct of the parties as established by the record, these comments fall far short of meeting the test for reasonable apprehension of bias established by the Supreme Court of Canada in R. v. R.D.S.1997 CanLII 324 (SCC)[1997] 3 S.C.R. 484 and related cases.  Many of the impugned comments were directed to the respondent wife or her counsel, rather than the appellant or his counsel.  Others arose during the testimony of the respondent, in contrast to that of the appellant.  While some of the challenged remarks by the trial judge may appear to reflect his frustration and concerns with the appellant’s conduct, neither the trial judge’s statements nor his alleged interruptions during the testimony of the parties support the assertion that he approached this trial with a closed mind or that his management of the trial was unfair or partisan.  This was an acrimonious law suit.  The evidence of the parties was conflicting and every issue appears to have been vigorously contested.  Viewed as a whole, the record and the trial judge’s reasons reveal that he did a commendable job in weighing the evidence, managing the trial and adjudicating on the issues in contention.”

McFarlane v. McFarlane, 2007 ONCA 591 (CanLII) at 3