Muskrat Falls challenge delayed after judge considers whether to remove herself

ST. JOHN’S, N.L. – A constitutional challenge of the Muskrat Falls hydroelectric project stalled Monday as the Newfoundland judge adjourned the matter to weigh demands that she be replaced.

Provincial Supreme Court Judge Gillian Butler said she will likely issue a written ruling next week after Brad Cabana argued she should step aside because of personal, political and professional ties.

Cabana, a political blogger and small businessman who is representing himself, told the court that Butler has a history of representing Newfoundland and Labrador Hydro. The utility is a subsidiary of Crown corporation Nalcor Energy, proponent of the Muskrat Falls project.

In a written submission, he also said she has previously donated to the Progressive Conservative party, now the provincial government, that supports Muskrat Falls.

And he said Butler is married to David McKay, a partner in the law firm that is representing former premier Danny Williams in a defamation suit and countersuit involving Cabana.

Cabana has argued that Butler is in a position of reasonably perceived bias. If she dismisses the constitutional challenge and imposes hefty court costs, it could limit his ability to argue the defamation case, Cabana said in court.

Butler said the information on political contributions goes back to 1996 and entirely predates her appointment to the bench in 2007.

She said it appeared that Cabana had spent “a great deal of time” over the weekend researching her life before she became a judge.

“I want to caution you, Mr. Cabana, that I think you’ve crossed the line here.”

She stressed that “a focus on what’s relevant” is required and submissions that veer more toward the vexatious, scandalous or embarrassing have legal consequences — including possible charges of contempt of court.

Cabana apologized. He said he only meant to bring to light facts that he thought were relevant.

Butler said she would show Cabana lenience as a non-lawyer representing himself but would not hear his arguments on political donations.

Lawyers for the provincial government, Nalcor Energy and the Innu Nation quoted case law arguing that “cogent evidence” of bias is the proper legal test for when a judge should step down from a case. Mere suspicion of bias or conflict of interest is not enough, they said.

Lawyer Rolf Pritchard, representing the provincial government, stressed that Butler’s husband is not directly handling the Williams case.

Lawyer Thomas Kendell, representing Nalcor Energy, agreed with Pritchard and said it’s unfortunate Cabana feels it necessary to “cast aspersions on the court’s impartiality.”

Cabana said it weighs on him that Butler could impose significant court costs against him if the constitutional challenge proceeds with her as judge and is ultimately dismissed.

“Certainly it will be very, very, very, very difficult for my family should we lose,” he said outside court. “However, on the flip side of it, I think it will be very, very difficult for the people of this province if I lose. So you compare the two, you weigh the two and decide, you know, whether you put the people before yourself.”

Cabana argued that the proper test for a judge’s removal is a reasonable apprehension of bias.

Justice must not just be done but “it must be seen to be done,” he said in court.

Cabana also said Butler has a pecuniary or financial interest because her husband’s law firm stands to profit if his ability to defend himself in the Williams case is diminished.

Cabana is trying to stop the $7.7-billion hydro development in Labrador, alleging various constitutional violations that he says could spell disaster for the province if the project is successfully challenged once it’s built.