Background
Jessie Leendertse was struck by the mirror of a passing police vehicle while cycling in 2012. He sued Ontario in negligence for personal injuries and sought Charter damages for alleged detention-related breaches during the police investigation immediately after the collision.
The trial, originally scheduled for February 2020, was disrupted by the illness of Leendertse’s counsel and later by the COVID-19 lockdown. Before proceedings resumed, Leendertse unsuccessfully sought a mistrial, alleging that counsel’s illness had impaired his representation. The Superior Court ultimately dismissed the action in 2022.
On appeal, Leendertse sought a new trial based on an alleged reasonable apprehension of bias arising from an ex parte case-management appearance by Ontario’s lawyers and the trial judge’s handling of counsel’s illness. He also argued that he had been detained during the police investigation and requested $25,000 in Charter damages.
The Court’s Holding
The Court of Appeal dismissed the appeal. It held that the brief appearance by Ontario’s lawyers before the trial judge, without anyone representing Leendertse present, was an innocuous case-management event intended to advise the judge that the trial could not proceed that day. The record did not show that Ontario’s counsel made substantive submissions or persuaded the judge to reverse an earlier decision. A reasonably informed observer would not apprehend bias.
The trial judge also acted within her discretion in proceeding during the week of February 18, 2020. Whenever Leendertse’s counsel said she was unable to proceed, the judge adjourned the matter; counsel later represented that she was ready to continue. The record did not establish that counsel’s illness rendered the trial unfair, and the refusal of the mistrial application itself was not appealed.
The court said the trial judge may have erred by finding that Leendertse was never detained, because an officer had told him he could be arrested for leaving the scene before the investigation ended. It declined to decide the point because the detention theory had not been fully argued and would not affect the outcome. Even assuming a detention, Charter damages were unwarranted: Leendertse proved no compensable loss, the trial judge found that police acted professionally, and there was no serious interference with his liberty requiring vindication or deterrence.
Key Takeaways
- A brief ex parte communication concerning routine scheduling or case management does not create a reasonable apprehension of bias without evidence of substantive advocacy or prejudgment.
- A judge may rely on counsel’s representation that counsel is ready to proceed when deciding whether illness requires a further adjournment.
- A possible Charter breach does not automatically justify damages; the claimant must establish that compensation, vindication, or deterrence makes damages just and appropriate.
Why It Matters
The decision distinguishes procedurally harmless case-management communications from ex parte dealings capable of undermining confidence in judicial impartiality. It also underscores the deference appellate courts give trial-management decisions, particularly where counsel affirmatively represented an ability to proceed.
For Charter claims, the ruling confirms that proving detention would not alone entitle a claimant to damages. Courts must separately assess the remedial purposes of compensation, vindication, and deterrence, and may decline to resolve a constitutional issue that cannot affect the appeal’s disposition.