Implications of Case Management and Active Adjudication for Judicial Disqualification

Abstract

In the face of very limited judicial resources and a widely recognized access to justice crisis, the judicial role is changing to include an enlarged set of tools for making trials fairer and more efficient. These tools range from pre-trial settlement and case-management conferences to more active adjudication during the trial itself. Appellate decisions have recognized that “it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please.” (R. v. Felderhof (2003) 68 OR (3d) 481 (Ont CA) at para. 40). These are important developments and undoubtedly a component of addressing power imbalances, systemic delays and inefficiencies. However, for judges, these new tools also present considerable challenges since judicial interventions have the potential to raise, in the eyes of litigants, and occasionally in the eyes of the reasonable and informed observer, an apprehension of bias. In these cases, appellate courts sometimes describe the judge’s conduct as “having aligned themselves with one of the parties” or “descended into the fray”. These phrases are clear in articulating appellate disapproval, but they do not provide very helpful guidance to judges about how to play a more active role without raising concerns about lack of impartiality. In this paper, we review the recent case law and commentary on case management and active adjudication with a view to identifying with greater particularity the boundaries between permissible judicial intervention in order to foster fairness and efficiency impermissible descent into the fray. We identify factors considered by appellate courts, flag areas of continued uncertainty and suggest some approaches towards reconciling competing notions of efficiency, access to justice and impartiality.