The conduct of the chambers judge did not give rise to bias or an apprehension of bias: court
In a 13-year-long estate dispute, the Alberta Court of Appeal upheld an order removing the co-executors and appointing a new estate administrator.
In Kirst Estate (Re), 2023 ABCA 252, Michael Kirst appealed an order denying his application for an adjournment, removing the co-executors of the estate of William James Krist Jr. and appointing the respondent, Forest Mitchell Kirst, as administrator of the estate. The order also authorized Forest Kirst to enforce and effect specific court orders, including the sale of a property, which was the only substantial asset of the estate.
The appellant, Michael Kirst, contended that the chamber's judge committed an error in refusing to adjourn the application to permit cross-examination of the respondent on his affidavit. Kirst asserted that he did not seek the adjournment to delay the proceedings but to challenge the allegations in the respondent's affidavit that Kirst breached court orders and destroyed estate property.
The appeal court explained that Michael Kirst failed to show that the chambers judge committed an error in his discretion by dismissing the application for an adjournment in the circumstances where a cross-examination would be relevant. The court emphasized that cross-examination is not an unlimited right.
Kirst argued that the chambers judge demonstrated a reasonable apprehension of bias against him. He said the chambers judge seemed to have made up his mind before allowing Kirst's counsel to be heard, and he ordered more than what was sought in the application. However, the appeal court said that the estate litigation began in 2010 and has granted 17 orders to date. The court believed that the chambers judge's comment that he thought he had some involvement in this matter at some point did not indicate he had prejudged the application.
The court further explained that the test for reasonable apprehension of bias is if a fully informed and reasonable observer could reasonably apprehend, having thought the matter through, that the judge was not fair and impartial. As there is a presumption of judicial integrity, substantial grounds and cogent evidence are required to conclude that an apprehension of bias is reasonable.
The court found that Michael Kirst failed to demonstrate that the conduct of the chambers judge gave rise to bias or an apprehension of bias. Accordingly, the court dismissed his appeal and affirmed the decision denying his application for an adjournment, removing the co-executors of the estate and appointing a new administrator of the estate.
