Manufacturing a Conflict of Interest: Can Suing a Judge Force Their Recusal?
When handling a case, a judge can hardly please everyone — that much is obvious. However, scenarios in which a party actually retaliates against a judge tend to be the stuff of movies and television dramas, and rarely happen in real life.
So when reading McIntosh v. Kim, 2026 ONSC 2779 (CanLII), in which the applicant sued the judge personally and used that lawsuit as grounds to demand the judge's recusal from the case, it seemed only right to share this motion with readers.
The applicant sought to have the presiding judge withdraw from all cases involving the applicant, on the grounds that the applicant had already commenced a civil action against the judge personally, and that the judge had previously initiated a vexatious litigant proceeding against the applicant on her own motion under Rule 2.2 of the Rules of Civil Procedure. The applicant argued that, as a result, the judge could not remain impartial and neutral.
The court noted that the applicant had brought the identical application in November 2025, which had already been dismissed in February 2026. This latest motion raised two new grounds: first, that the applicant had named the judge as a defendant in a civil action; and second, that the judge had, on her own initiative, commenced a vexatious litigant proceeding against the applicant. The question the court needed to determine was whether a reasonable and fully informed person, having objectively considered all the circumstances, would conclude that the judge was more likely than not unable to fairly hear the case.
The court reaffirmed the fundamental principles of Canadian law regarding judicial impartiality. Judicial neutrality and fairness are core values of the justice system, and judges are entitled, by law, to a strong presumption of judicial impartiality. Accordingly, anyone alleging that a judge is biased must produce concrete and compelling evidence, and cannot rely merely on speculation, suspicion, or dissatisfaction with a judgment's outcome to reach that conclusion.
On the matter of the applicant having commenced a civil action against the judge herself, the court noted that, in that separate civil action against the judge, the applicant sought nominal damages of one dollar and demanded that the judge take a six-month leave of absence. The applicant alleged that the judge had exceeded her jurisdiction and had deliberately caused harm to her and her children. However, the court held that the mere fact a party has sued a judge does not, on its own, automatically give rise to a conflict of interest or a reasonable apprehension of bias.
The court reasoned that if the applicant's argument were accepted — namely, that any party could force a judge to withdraw from a case simply by suing that judge, thereby achieving a form of "judge shopping" — this would not only undermine judicial efficiency, but would also damage judicial independence and public confidence in the courts.
The court further noted that the applicant had failed to produce any objective evidence demonstrating that the judge harboured hostility or bias toward her. On the contrary, the applicant had previously proposed a settlement to the judge, offering to withdraw the lawsuit and pay $10,000 in costs if the judge agreed not to recuse herself from the case. The court found that this proposal never resulted in any actual financial relationship, and had in any event already been rejected — meaning no conflict of interest existed. The court held that the applicant's attempt to manufacture a so-called conflict of interest through her own litigation conduct and by offering the judge a settlement payment, and to then use that as grounds for demanding the judge's withdrawal, was insufficient to establish a reasonable apprehension of bias.
Turning to the second ground — that the judge had initiated the vexatious litigant proceeding on her own motion — the court noted that Rule 2.2 of the Rules of Civil Procedure, as amended in 2024, grants the court the power to review, on its own initiative, whether a party constitutes a vexatious litigant. Under this provision, the court may issue notice and consider whether to restrict a party from continuing to commence litigation, in order to prevent abuse of judicial resources.
The applicant argued that, because the judge had already initiated this proceeding against her, the judge could not possibly remain objective. The court disagreed. It held that the Rule 2.2 process is, in essence, a judicial administrative function, aimed at protecting court resources and preserving the integrity of judicial process — not at pursuing any personal interest of the judge. In carrying out this duty, the judge was acting pursuant to statutory authority, not participating in litigation in a personal capacity.
The court further noted that, even where a judge initiates a vexatious litigant proceeding, this does not mean the judge has already reached a final determination regarding the applicant. Accordingly, a reasonable and informed person would not reasonably doubt the judge's impartiality simply because the judge was carrying out her statutory duties.
On the whole, the court found that the applicant had failed to produce any evidence sufficient to rebut the presumption of judicial impartiality. Neither the civil action brought against the judge, nor the judge's exercise of her statutory authority to initiate a vexatious litigant proceeding, was sufficient to lead an objective observer to reasonably conclude that the judge was unable to fairly hear the case. The court emphasized that allowing a party to force a judge's withdrawal through such tactics would constitute an abuse of judicial process and would jeopardize the proper functioning of the justice system.
Accordingly, the court dismissed the applicant's second recusal application, and confirmed that the case would continue to be heard by the originally assigned judge.