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Lack of Success is Not Evidence of Bias

Christopher Johnson, a self-represented Plaintiff, commenced a copyright infringement action in November 2021 against several defendants, including the Canadian Tennis Association (“Tennis Canada”). Madam Associate Judge Coughlan was appointed as case management judge. The action had stalled due to several “unnecessary and duplicative” motions brought by Mr. Johnson.

Mr. Johnson brought a motion under Rule 383(a) of the Federal Courts Rules requesting that a new case management judge be appointed. Mr. Johnson made several complaints challenging Coughlan A.J.’s impartiality. In particular, he argued that:

  • Tennis Canada had mounted a malicious disinformation campaign to smear him and the Court had failed to punish and deter the defendants’ behaviour;
  • Coughlan A.J. was not suitable to case manage the file because she had graduated from the same law school as counsel for Tennis Canada and had represented the Canadian government in the past.

Coughlan A.J. dismissed Mr. Johnson’s motion and declined to recuse herself.

Coughlan A.J. applied the objective test for recusal or reasonable apprehension of bias articulated by Justice de Grandpré in his dissenting judgment in Committee for Justice and Liberty et al v National Energy Board et al, later adopted with approval by the Supreme Court of Canada in R v S (R.D.) and Wewaykum Indian Band v Canada: whether the informed person, viewing the matter realistically and practically, and having thought the matter through, would think that it is more likely than not that the decision-maker, consciously or unconsciously, would not decide the matter fairly. The threshold for establishing a reasonable apprehension of bias is high and the burden rests on the person alleging it. A litigant’s lack of success does not establish a reasonable apprehension of bias.

Coughlan A.J. observed that the bulk of Mr. Johnson’s complaints demonstrated his frustration with, and misunderstanding of, the litigation process. The mere fact that Mr. Johnson was unsuccessful on his various motions would not lead a reasonable person to conclude that the Court was biased against him. Likewise, Coughlan A.J.’s former employment, and the fact that she had attended the same law school as counsel for Tennis Canada, did not support her disqualification. The Court held that attending the same law school “is hardly a basis for recusal” and imposing such a rule would create an “impossible standard”. Mr. Johnson’s assertions of bias were unsupported by any evidence and failed to recognize the presumption of neutrality and the oath of judges to render justice impartially.

A copy of the decision is available here.