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January 13, 2022 Practice Points

Can Judges (or Arbitrators) be Compelled to Give Evidence on a Bias Challenge?

There are strong arguments against the ability to compel an arbitrator to give evidence relating to an application to disqualify the arbitrator based on alleged bias.

By Joanne Luu

In Credit Transit Inc. v. Chartrand, 2021 QCCS 4329, the Québec Superior Court quashed a summons to compel a judge to give evidence relating to an application to disqualify him on grounds of bias. The court held that judicial immunity, which safeguards judicial independence, also protects judges from being compelled as witnesses in relation to the exercise of their judicial functions.

This case concerned a professional liability claim against certain defendants. One of the defendants, Jean-François Malo, applied to disqualify Judge Bernard Synnott from serving as the case management judge based on a statement Judge Synnott allegedly made to a journalist in 2015 when he was still a lawyer: “I hope that the person or people who commit these crimes [i.e. violent incidents in Joliette where local lawyers were victims] will be or will soon be arrested . . . Parallel justice is unacceptable” (para. 4). No charges were laid in relation to these incidents. Five years later, in 2020, Malo was charged with attempted murder following an attack on a lawyer acting in cases against him.

In pursuit of his disqualification application, Malo served Judge Synnott with a summons requiring him to testify at the upcoming disqualification application hearing over which Judge Synnott would be presiding and to bring with him various documents relating to his alleged dealings with journalists in 2015. (Judge Synnott decided to hear the application even though Malo requested him not to.)

Although Malo conceded that Judge Synnott could not be compelled to serve as a witness with respect to any event that arose after his appointment to the bench, Malo alleged that that the judge should be compellable with respect to events that took place before his appointment. Justice Lussier disagreed and relied on judicial immunity to quash the summons in advance of the disqualification hearing.

Justice Lussier explained that judicial immunity is generally invoked to defeat liability claims against judges. This means that while judges are civilly responsible for their purely personal acts, unrelated to their judicial responsibilities, they are immune for any act committed in the exercise of their judicial functions. This immunity serves as the cornerstone of judicial integrity and independence—ensuring that, in coming to their decisions, judges are driven solely to find the right result, and are not tainted or distracted by fears they could be sued, especially by powerful parties.

Judicial immunity also protects a judge from being compelled to testify as a witness in relation to the exercise of their judicial functions. Malo argued that Judge Synnott could be questioned about the comments he made as a lawyer, since they were unrelated to his judicial responsibilities. It is well-accepted that judicial immunity does not shield judges from professional acts before they ascended to the bench, nor from actions taken in their capacity as ordinary citizens.

Justice Lussier found that Judge Synnott acted in a judicial capacity when ruling on Malo’s request for disqualification. He found that the decision of whether to recuse oneself is part of the exercise of judicial power. It is at the heart of the judicial process and one of the prerequisites for exercising a judicial function. In this way, Justice Lussier reasoned that judges cannot be questioned or cross-examined on the reasons they relied upon to either recuse themselves or not.

Justice Lessier held that in a challenge to a judge’s impartiality, it is up to the party asserting bias to establish the grounds for disqualification based on extrinsic evidence. The judge cannot be compelled to establish them—even if the facts preceded his ascension to the bench. The judge is expected to respond to these criticisms in his judgment. Justice Lussier stated in paragraph 47 that, “The judge cannot be treated as an ordinary witness with regard to his function as a judge, at the risk of jeopardizing his independence and, thereby, his impartiality, which is at issue in this case.”

Accordingly, the summons was quashed.

Practice Point

It is common for an arbitrator’s Terms of Reference to provide that the arbitrator has the same immunity as a judge. Even without such a term, there is some authority for the concept of arbitral immunity in Canadian law. For example, in Flock v. Beattie, 2010 ABQB 193, the Alberta Court of Queen’s Bench held that “[i]n the absence of fraud or bad faith, an arbitrator enjoys immunity from civil liability.” Moreover, arbitral immunity is a matter of public law “because of the similarity of arbitration to the judicial function” (at para. 17-18, 20; see also: Alexander v. Neville, [2014] OJ No 969 (ONSC) at para. 36-37).

When read with these cases, the Chartrand decision provides a useful extrapolation as to whether arbitrators can be compelled to testify with respect to the exercise of their arbitral functions, especially when they rule on challenges to their own impartiality. In other words, there would be strong arguments against the ability to compel an arbitrator to give evidence relating to an application to disqualify the arbitrator based on alleged bias. 

Joanne Luu is a partner at Burnet, Duckworth & Palmer LLP in Calgary, Alberta.

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