Solitaire-playing judge raises issue of procedural fairness in power lawsuit

Power company Enmax Corp. wants to be dealt a fresh hand in a $127-million lawsuit after discovering a judge at the Alberta Court of Appeal was playing cards throughout a hearing during the summer.

“Any reasonable person would not want a justice of the highest court of Alberta playing Solitaire during a hearing,” Dalton Mcgrath, a lawyer representing Calgary's Enmax said in a hearing Monday.

Enmax on Aug. 18 filed for a new hearing “before a fresh, three-member panel” because Justice Jolaine Antonio, one of the three judges that heard an appeal on July 8, “was observed actively playing Solitaire on a computer screen in front of her ... which was reflected on the glass behind” her, according to the legal filing.

Playing computer games when both lawyers and judges are working remotely has become the subject of some gossip in legal circles and it also raises the issue of judicial fairness: Can judges perform their duties fairly if they are distracted?

Antonio apologized in a letter to the parties involved in the lawsuit, but added that asking questions showed she was engaged and she had also extensively prepared for the hearing.

“I write to extend my unreserved apology to you and your clients. ... there is no excuse for causing litigants and their counsel to feel unheard and disregarded,” she wrote in an Aug. 17 letter to Enmax, Transalta Corp. and the Balancing Pool, in which she also recused herself from the appeal decision.

Enmax and the Balancing Pool want another chance to litigate a power dispute that has been fought since 2013, which Enmax claims cost it, and the City of Calgary by extension, more than $100 million.

The Balancing Pool claims $40 million in public funds are at stake.

The dispute flared up after an eight-month power outage at Transalta's Keephills Unit 1 generating station in 2013.

Transalta claimed force majeure and forced Enmax, which owned a power purchase agreement at Keephills, to buy alternate sources of power on the open market.

Both Enmax and the Balancing Pool disputed the claim and the case ended up in mediation in 2016, where a mediator ultimately sided with Transalta.

Enmax and the Balancing Pool then disputed the outcome of that mediation at a hearing in 2019, but an Alberta Court of Queen's Bench judge once again sided with Transalta.

This led to an appeal heard over the summer, when COVID-19 protocols demanded hearings be conducted online, during which Enmax executives zoomed in on their computer screens to watch one of the three judges playing multiple rounds of solitaire.

“I was absolutely shocked to observe Solitaire being played by a member of the Court during the Appeal Hearing, particularly given the limited time of an appeal,” Erica Young, Enmax chief legal officer and executive vice-president of corporate development, said in an Aug. 18 affidavit.

Young added that she was able to observe the judge “playing Solitaire during the appeal hearing, including moving cards around.”

Both Enmax and the Balancing Pool, which oversees the transfer of power agreements in the province, also want the two other judges who heard oral arguments for an appeal to step aside and allow three new judges to take their place.

“Any oral hearing is conducted in front of an indivisible quorum of judges. The court appears as a single panel,” Mcgrath said on Monday, noting that the issue is that in the eyes of the public, “the court is playing Solitaire.”

The two remaining judges, Peter Martin and Frans Slatter, reserved their decision on how to proceed and sought arguments on whether they could continue as a two-judge panel, add a third judge or restart the process entirely.

“Unfortunately, you are both members of a three-person panel that treated the parties unfairly,” Patrick Roche, a partner at DLA Piper (Canada) LLP, which is acting on behalf of the Balancing Pool, said during Monday's hearing.

Mike Donaldson, a partner at Lawson Lundell LLP, which is acting on behalf of Transalta, said the card-playing judge was not biased and was otherwise actively engaged in the appeal hearing.

Transalta requested that the two remaining judges on the three-member panel continue and to also dismiss the appeal heard during the July 8 hearing.