A Manitoba judge with an illustrious political career has refused to recuse himself in a wrongful dismissal case filed by a medical doctor, who provided abortions, against the health clinic where he used to work.
Justice Vic Toews of the Court of King’s Bench called the position of the plaintiff “somewhat puzzling” given the fact the defendant clinic in this case arguably played a much larger role in enabling abortions than the the doctor did.
The plaintiff, engaged in providing surgical abortions and medical services at the defendant’s clinic, alleges breach of contract, wrongful termination, and several other causes.
The motion for recusal questioned the impartiality of the judge, citing his past political affiliations and public statements. Toews was a politician before joining the bench. He was an MLA in Manitoba from 1995 to 1999 and was a Conservative Member of Parliament (MP) from 2000 until 2013. He served in the cabinet of Prime Minister Stephen Harper, including stints as Minister of Justice – Attorney General of Canada, and Minister of Public Safety.
The plaintiff’s concerns stem from the judge’s decisions at pre-trial conferences and his alleged bias against abortion-related services.
However, the judge defended his position, emphasizing the legal standards for recusal and his adherence to judicial impartiality.
This legal saga began with the plaintiffs seeking a mandatory injunction for document disclosure, which the defendant claimed was procedurally inappropriate. The defendant, denying any breach of contract or other allegations, provided a 90-day notice before terminating the contract with the plaintiffs.
Significant pre-trial activities included the defendant’s intentions to challenge certain claims, the judge’s orders for particulars to streamline the case, and the setting of a trial date for February 2024. The judge also discussed the potential for summary judgment applications, emphasizing their contextual consideration at future pre-trials.
The defendant countered the recusal motion by highlighting the timeliness and procedural appropriateness of the judge’s decisions. They argued that the judge’s rulings were in line with standard judicial practice and did not exhibit bias.
The judge’s response
In his detailed analysis released on Jan. 8, 2024, the judge systematically addressed the plaintiff’s allegations, emphasizing the context and legal framework governing judicial conduct and recusal.
He noted that the decision-making throughout the pre-trial stages was consistent with judicial guidelines and did not demonstrate bias. The judge referred to his role in facilitating an efficient trial process, including orders for particulars and discussions on summary judgment applications, as standard judicial practices aimed at clarifying and simplifying the issues at hand.
The judge also addressed his past political career and public statements, arguing that they were focused on the constitutional separation of powers and did not constitute bias against the plaintiffs or the subject matter of the lawsuit.
“The materials themselves do not support the position and arguments of the plaintiffs,” he said. “The materials repeatedly reiterate the position that I took while in political office, namely that it was the constitutional jurisdiction of the legislative and executive branches of government to legislate in respect of matters of social policy and that this jurisdiction should not be improperly appropriated by the third branch of government.”
He emphasized that his comments were always within the broader context of constitutional jurisdiction and not specific to any social policy issue.
“The legal, ethical and constitutional obligations and responsibilities I carry out in the context of my federal judicial appointment to a provincial superior court are significant and not lost on me,” he said.
Few recusals in his career
Justice Toews noted that, despite his significant prior interaction with members of the public in his role as a provincial and federal politician, he has rarely come to the conclusion that recusal was necessary — “perhaps no more than three or four times over the course of almost 10 years on the bench.”
“I might add, those recusals have never been on account of political or even personal views which I may have held prior to coming to this branch of government,” he said.
Justice Toews noted that in a province where the population is small and the judge is likely to have previously encountered many individuals or expressed opinions due to past governmental roles, using these connections or expressed views as the sole criteria for judicial recusal would render a judge’s role largely ineffective or unproductive.
“I have not addressed the somewhat puzzling position of the plaintiffs that I may be biased or give the appearance of bias in respect of the individual plaintiff doctor because he is performing a specific medical procedure and at the same time favouring the defendant medical clinic which arguably plays a much larger role in providing the necessary support to enable several doctors to carry out this same procedure,” he said. “Considering my reasons, it is not necessary for me to do so.”
In conclusion, the judge found no reasonable grounds for recusal based on the evidence and legal standards presented. He underscored the importance of judicial impartiality and the high threshold required for establishing a real likelihood or probability of bias.
The motion for recusal was dismissed, and the judge affirmed his decision to continue presiding over the case. Costs were awarded to the defendant on a usual tariff basis, regardless of the outcome.
For more information, see Hahlweg et al. v. Women’s Health Clinic Inc., 2024 MBKB 1 (CanLII)
