Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal has decided not to hear an upcoming civil trial arising from the controversial Winnipeg Police Service headquarters construction project, citing the "spectre" of bias.
The lawsuit was launched by the City of Winnipeg in January 2020, roughly one month after Manitoba RCMP closed Project Dalton — the multi-year, multimillion-dollar fraud investigation into the over-budget project — without criminal charges.
The defendants named in the suit are former City of Winnipeg chief administrative officer Phil Sheegl, various contractors and consultants connected to the job and Caspian Construction, the firm hired to build the WPS HQ.
In a letter dated May 10th obtained by the Free Press, Joyal notified the lawyers on the case that he planned to recuse himself.
"It is my view that my continuation as trial judge in the present action would give rise to a reasonable apprehension of bias that could potentially affect the integrity of the trial and the determinations respecting various issues that may have to be adjudicated," Joyal wrote.
"Accordingly, I can advise counsel that I will not be continuing as the trial judge at what will be the scheduled trial of this matter."
“I can advise counsel that I will not be continuing as the trial judge at what will be the scheduled trial of this matter.” – Chief Justice Glenn Joyal
In March, Joyal ruled that Sheegl accepted a $327,000 bribe from Caspian Construction related to the awarding of the construction project, and ordered him to repay the city hundreds of thousands of dollars.
The portion of the lawsuit dealing with Sheegl was severed from the rest of the case.
Last week, Sheegl’s lawyer Robert Tapper — who successfully argued in 2020 that the portion of the lawsuit dealing with his client should be severed from the other defendants — told the Free Press Sheegl would appeal the ruling.
Joyal, while stating his "mind would remain open throughout the trial," pointed to that ruling in his letter explaining his decision to take himself off the case.
"I must acknowledge that even if there is not a concern in respect of real bias, given my reasons in the judgment noted above and in the unique and particular circumstances of this case, the spectre of an apprehension of bias is reasonable," he wrote.
Joyal noted his intention to remain as case management judge on the lawsuit, which is an administrative role that makes sure the matter moves through the courts properly.
Should any of the parties to the lawsuit have an issue with him remaining on in a case management capacity, Joyal asked them to register their objections by Wednesday.
On Tuesday, the city’s director of corporate communications, Felicia Wiltshire, sent a brief statement to the Free Press regarding the development.
"The city respects Justice Joyal’s decision," Wiltshire wrote.
The legal team for Caspian Construction did not respond to a request for comment by deadline.
Krish Maharaj, an assistant professor in the faculty of law at the University of Manitoba, said it’s not uncommon for judges to recuse themselves due to current or prior professional or personal relationships with someone involved in a case, or a personal interest in the case themselves, but that doesn’t appear to be the concern here.
"This is slightly different…. Having already ruled in the earlier, separate action — having to do with Sheegl accepting a bribe — it would suggest he has potentially already formed an opinion about matters that would be in issue in the coming litigation," Maharaj said.
"That could be perceived as an indication he would not be free from some bias against the defendants in that litigation… I think it’s perfectly reasonable and understandable on the part of the trial judge, and it’s in the best interest of the administration of justice."
Maharaj said the legal test Joyal used when deciding whether to recuse himself is a "prophylactic standard" that takes a conservative approach and does not require actual bias to be present.
"The test is… that a reasonable and informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not the decision-maker, whether consciously or unconsciously, would not decide the matter fairly," he said.
"There’s a touchstone principle that it’s not enough for justice to be done, justice must also be seen to be done. Any perception the process may be unfair or flawed tends to undermine the perception of justice being done, and thus undermine confidence in the justice system."
Any perception the process may be unfair or flawed tends to undermine the perception of justice being done, and thus undermine confidence in the justice system.” – Krish Maharaj
A trial date for the lawsuit has not yet been set.
Last week — on the same day Joyal announced to counsel he was stepping down as trial judge — the Free Press revealed the existence of a second RCMP investigation, code named Project Dioxide, into city hall deals from former mayor Sam Katz’s election in 2004 to his exit from civic politics in 2014.
Like Project Dalton, RCMP Project Dioxide also closed without criminal charges.
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