RECUSAL OF A JUDGE FOR BIAS AFTER JDR / RECUSAL OF A CASE MANAGEMENT JUDGE
The Rules of Court, Alta Reg 124/2010 (“Rules”) and case law from the Court of Appeal deal with concerns of bias in the specific context where a judge has conducted a JDR with the parties. These authorities indicate that there are limited circumstances in which it will be appropriate for a judge to continue to perform adjudicative functions in the file subsequent to the JDR. This is particularly the case where the issue on which the judge is called to adjudicate is an issue that was already canvassed during the JDR.
A number of decisions have been rendered by Alberta courts dealing with applications for recusal of a case management judge. These cases establish that the approach in a case management context is the same as in any other context, and that the applicable test for apprehension of bias is “whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly”i. These cases suggest that the threshold for finding an apprehension of bias is high, and that judges should not accede to every application for recusal brought by a disgruntled party, but in fact have a responsibility to remain seized of a matter unless a legitimate basis for disqualification exists.
Disqualification of Judge after JDR
The new Rules of Court, Alta Reg 124/2010, Rules 4.17 et seq, set out the rules governing JDR processes. In particular, Rule 4.21 reads as follows:
“4.21(1) The judge facilitating a judicial dispute resolution process in an action must not hear or decide any subsequent application, proceeding or trial in the action without the written agreement of every party and the agreement of the judge.
(2) The judge facilitating a judicial dispute resolution process must treat the judicial dispute resolution process as confidential, and all the records relating to the process in the possession of the judge or in the possession of the court clerk must be returned to the parties or destroyed except
(a) the agreement of the parties and any document necessary to implement the agreement, and
(b) a consent order or consent judgment resulting from the process.
(3) The judge facilitating a judicial dispute resolution process is not competent to give evidence nor compellable to give evidence in any application or proceeding relating to the process in the same action, in any other action, or in any proceeding of a judicial or quasi-judicial nature.” (Emphasis added)
Prior to the new Rules, JDR processes were governed by the Guidelines for Judicial Dispute Resolution (“Guidelines”) issued by the Alberta Court of Queen’s Bench, which provided as follows at paragraphs 8 and 9:
“8. The process is confidential. Statements made by counsel or by the parties are confidential and without prejudice and cannot be used for any purpose or referred to at trial, should the matter proceed to trial. After judicial dispute resolution, all briefs, submissions, notes and papers in the judge’s possession will be destroyed.
9. Unless the parties consent, the judge will not hear any applications or the trial of the matter. The judge will not discuss the judicial dispute resolution process with the trial judge, should the matter proceed to trial.” (Emphasis added)
Thus the new Rules require not only that the parties give consent for the judge administering the JDR to adjudicate on subsequent matters, but also that the consent be provided in writing.
Paragraph 9 of the Guidelines has been interpreted on two occasions by the Court of Appeal. In White v. White, 2003 ABCA 358, 346 A.R. 51, the judge had retained jurisdiction, after issuing judgment at trial, in relation to a possible review of access arrangements and to provide advice and directions to the wife if child support was not paid. The parties did in fact meet with him, without counsel, to attempt to resolve outstanding issues, and the wife had a second meeting with the judge, which the husband declined to attend. The husband subsequently filed an application for variation of child support and increased access, in response to which the wife sought an order permitting her to withhold the final matrimonial property payment and to deduct amounts therefrom as security against payment of child support. The judge’s rulings on those matters were appealed by the husband on grounds of bias. The Court per curiam allowed the appeal with the following reasons:
“ We have no doubt whatsoever as to the fairness and impartiality of the learned chambers judge. He is to be commended for attempting to assist the parties to resolve their outstanding issues in this difficult litigation. Although his meeting with the parties in the absence of counsel in April 2001 was directed to that purpose, an examination of the record persuades us that the meeting in question was in the nature of a mediation. Its purpose was to attempt to resolve some of the outstanding issues between the parties by way of agreement. Judicial Dispute Resolution may often require a judge to adopt a posture that, if assumed in one’s capacity as a trial judge, might well result in reversible error. Trial judges do not enter the fray. A judge engaged in J.D.R. may do precisely that. Indeed, he or she may well exhort the parties and, on occasion, resort to gentle criticism in order to facilitate a fair compromise of disputed issues.
 The meeting between the chambers judge and the Respondent in the absence of the Appellant was also directed to that purpose, as were the post-adjudication meetings of the chambers judge recited above. All were well-intentioned, but we are bound to say incompatible with the adjudicative role.
 In such circumstances, the consent of the aggrieved party, notwithstanding paragraph 9 of the Guidelines, will not have a curative effect. The obligation to recuse lies with the judge regardless of whether or not the litigants consent.” (Emphasis added)
The effect of the parties’ consent for the judge to continue adjudicating despite involvement in a JDR was again addressed in L.N. v. S.M., 2007 ABCA 258, 412 A.R. 232. In that case, the parties had participated in a JDR process which led to an agreement placing custody of their child with the father, and stipulating that the judge would remain seized of the matter. The mother subsequently sought modification to that arrangement, and a trial of the matter was heard by the same judge who had conducted the JDR. He rendered a final order placing custody with the mother. Berger J.A. allowed the father’s appeal, providing lengthy commentary and concluding that the judge’s involvement in the JDR process made it inappropriate for him to act as trial judge. He stated:
“ A judge’s role at JDR is very different than that of an adjudicating judge. The substance of negotiations at a JDR never come before a trial judge. Trial judges do not caucus with the parties. Trial judges are never privy to offers of settlement made at the JDR before they adjudicate on the merits. Moreover, when the JDR is arranged, counsel are reminded that “the non-binding opinion of the [JDR] judge that may be rendered is strictly confidential. … It will not be discussed with a trial judge.” At a JDR, the judge deals directly with the parties. The judge’s role is to facilitate settlement negotiations and resolve outstanding issues. The JDR judge will converse with the litigants and may express his opinion regarding the competing positions.
 There will be an incomplete record of the JDR for appeal purposes. The aggrieved litigant who wishes to rely upon certain representations at JDR, which arguably led him or her to consent to the same judge presiding at trial, would ordinarily be unable to do so. (I allow for an exception in this case; see para. 40). In such circumstances, any such consent would be incapable of meaningful appellate review. Although it might be argued that a judge can be relied upon to recuse himself if that which took place at the JDR gives rise to a reasonable apprehension of bias, judges do err, and the lack of a record of what transpired at the JDR would not be available for any purpose to the losing party.
 It follows that the principles set out in White v. White are not confined to the facts of that case. White establishes a rule of broader application when contested issues at trial were earlier canvassed by the same judge at JDR.
 I recognize that the JDR process has become a valuable tool in expedited dispute resolution within the formal framework of the administration of justice. As such, its use and the practices and rules around it should develop with that purpose in mind, but without sacrificing the integrity of trial process.
 The principled exclusion of JDR judges from the trial role, premised upon the confidentiality of JDR discussions in furtherance of candour and transparency, enhances the efficacy of the process and facilitates the settlement of disputes. I am persuaded that trial judges should not be privy to such discussions, even with the consent of the parties, because to so permit diminishes the efficacy of JDRs and inevitably raises the spectre of an apprehension of bias in subsequent trial or contested chambers proceedings.” (Emphasis added)
In the process of coming to this conclusion, Berger J.A. also acknowledged the following circumstances in which, exceptionally, it may be acceptable for a JDR judge to subsequently act in an adjudicative role in the same file. Note, however, his caveats concerning the necessity for unequivocal consent by the parties, and the avoidance of adjudicating on issues already canvassed in JDR:
“ In so holding, I do not say that there will not be situations where a judge will be invited to conduct a JDR with respect to a discrete number of issues with the consent of the parties and then preside at a trial where the remaining issues in dispute, which were not discussed at the JDR, are adjudicated. But even in those cases, a judge must be very careful to consider whether there would be an appearance of bias and, accordingly, must ensure that the matter is thoroughly canvassed and an express, informed consent obtained. Judges, litigants and their counsel must understand that an implied waiver of apprehension of bias in these circumstances will not immunize the trial verdict from appellate intervention.
 I also acknowledge that there will be situations where a JDR judge may stay involved in non-trial matters following the JDR. But they should be confined to non-contentious issues like signing an order reflecting the settlement agreement. It may also be that on a small outstanding issue the parties will consent to the JDR judge making a decision to finalize a settlement. Any such consent should be clear and unequivocal; it should particularize with care the matters to which the consent applies.
 I recognize that there are situations where it is advantageous and desirable for the JDR judge to be the trial judge. Particularly in family law situations, the litigants cannot always afford the ideal level of procedural protection. They may have developed a comfort level with the JDR judge, or they may recognize that the factual knowledge that the JDR judge has acquired will considerably streamline the final resolution of matters still in dispute. In my opinion, if such issues were unsuccessfully canvassed at the JDR, the JDR judge should not adjudicate such issues at trial or in subsequent contested chambers applications. Instead, if the parties repose confidence in the JDR judge, it is certainly open to them to continue the JDR process. Surely, the JDR regime is flexible enough to allow the JDR judge to hear viva voce testimony from witnesses and to provide the parties with the benefit of his or her opinion which the litigants may agree will bind them and will form the basis of a consent order. Should the parties so elect, they will no doubt appreciate that the JDR judge’s pronouncement remains part of the JDR process and will not be appealable.” (Emphasis added)
Thus, in Berger J.A.’s opinion, it is generally not appropriate for a JDR judge to subsequently act as adjudicating judge in the same matter. Exceptions, in his view, are likely limited to adjudication of issues not canvassed during the JDR, or to minor, non-trial matters. In all cases, the parties’ consent must be clear and unequivocal, and the judge must give careful consideration to whether the circumstances give rise to an apprehension of bias.
The decision in White v. White was also applied in B. (T.P.) v. Alberta (Director of Child Welfare), 2005 CarswellAlta 2728 (Q.B.). In that case, Phillips J. vacated a permanent guardianship order made by a provincial court judge who had also conducted JDR proceedings concerning temporary guardianship of the same children. In rendering judgment, Philips J. took a strict view of the rules, in keeping with White:
“3 Following White v. White [2003 CarswellAlta 1732 (Alta. C.A.)], it is clear the Provincial Court judge should have disqualified herself from the hearing, given that she had conducted a Judicial Dispute Resolution between the parties less than a year prior to trial, albeit the JDR was in relation to a Temporary Guardianship Application concerning the same children and parties as the Permanent Guardianship Application from which this appeal arises.
4 The guidelines for a JDR in Provincial Court are similar to those as set out in Queen’s Bench. In that regard, it is represented to the parties at the outset of a JDR that the judge conducting the JDR shall not hear any application or the trial of the matter.
6 In this case, the items discussed at the JDR are unknown, but the transcript of the trial indicates that the Department was pursuing a Permanent Guardianship Order, which the Appellant mother was advised of prior to the JDR. It therefore follows the same issues that would have beer [sic] discussed at the JDR were likely the same ones before the Provincial Court judge at trial relating to the Permanent Guardianship Application
7 It matters not that the Provincial Court judge did not recall what had gone on at the JDP [sic], or that she acted with fairness and impartiality. […]
Furthermore, it matters not that this matter was not raised with the Provincial Court judge until the third day of the trial. As pointed out in paragraph 16 of White v. White: “consent of the aggrieved party will not have a curative effect”. So too in this case, any failure of the Appellant mother to address the JDR issue with the court at the outset of the trial, arguably amounting to acquiescence on her part, will not in my view have any curative effect on this case whatsoever.”
Thus, these cases take the position that the judge’s roles in JDR and adjudicative contexts are essentially incompatible, and a judge having acted in a JDR capacity should not then go on to adjudicate matters in the same file. The exceptions to this rule arise where the JDR and adjudicated issues are sufficiently distinct to avoid any apprehension of bias, or where the parties have given clear and enlightened consent to the continued involvement of the JDR judge.