Recusal – Application for Rehearing
In this decision, the ABCA considered the appropriate procedure to be followed when an appellate judge recuses herself from the panel following the hearing of an appeal but before judgment is rendered. Although it found no legal reason for the panel to recuse themselves, it found that the only recourse available in circumstances where the remaining judges were not unanimous in their decision, was to order a rehearing of the appeal by a new panel.
Background
The appeals before the ABCA arose from a dispute over which party should bear financial responsibility for the failure of an electrical generating unit: see ENMAX Energy Corp v TransAlta Generation Partnership, 2019 ABQB 486. After the hearing but before the decision was issued, counsel for ENMAX Energy Corp. (“ENMAX”) filed a letter raising the concern that the third judge appeared to be periodically inattentive during the hearing. On receipt of counsel’s correspondence, that judge issued an apology to counsel and their clients and recused herself, having nothing to do with the appeals thereafter.
Application for a Rehearing
The ABCA found that during the hearing, neither counsel nor the other two judges on the panel were aware of the third judge’s activity. Nevertheless, ENMAX argued that the other two judges on the panel are “tainted” by the inattention of the third judge. Neither the law nor the fully informed objective observer would support this proposition. The ABCA also emphasized that this is not a case of alleged bias.
ENMAX argued that the two remaining members of the panel needed to recuse themselves along with the unfocused judge and that the appeals needed to be reheard by three other judges. The ABCA determined that this was without merit. Because the remaining two judges were not aware of the third judge’s inattention, they stand in the same position as the other members of the Court who are argued to be required to rehear the appeal.
Procedure Going Forward
ENMAX argued that the right to have an appeal decided by a full quorum of the Court is a substantive right, that it is entitled to an opportunity to persuade each of three judges to decide in its favour, and that any dissent in its favour might enhance an application for leave to appeal to the Supreme Court of Canada.
TransAlta Generation Partnership, as the respondent, argued that there is no reason to reargue the appeals and that the remaining members of the panel could render a decision. The presence of Section 8 in the Court of Appeal Act undermines any general proposition that there is a right to have an appeal decided by a full panel of three judges.
The ABCA held that on its proper interpretation, Section 8(e) of the Court of Appeal Act is clearly intended to be remedial. The ABCA noted that it would be impossible to list all of the circumstances under which one member of a panel might be unable to continue and when the incapacity might be discovered. The ABCA held that this section was designed to avoid unnecessary duplication of proceedings when that happens. Whether the event happens before or after the hearing, or whether it is only discovered later, does not change the remedial purpose of the section. The ABCA therefore held that the two remaining members of the panel “may” decide the appeals if they are unanimous. The decision of the remaining judges was, however, not unanimous. Accordingly, the only recourse available in the circumstances was to order a rehearing of the matter by a new panel.
