Bias and Conflict of Interest

1. Principles of Judicial Bias
2. Test for Bias
3. Integrity
4. Bias Contrasted with Conflict of Interest
5. Bias and Intervention by the Bench
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1. Principles of Judicial Bias

. Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)

The case of Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) (SCC, 2015) contains a broad statement from the Supreme Court of Canada on judicial bia:

Analysis

[20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows:

. . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [Citation omitted.]

(Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting))

[21] This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by this Court: e.g., Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] 1 S.C.R. 539, at para. 199; Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para. 26; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 46; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 11, per Major J., at para. 31, per L’Heureux-Dubé and McLachlin JJ., at para. 111, per Cory J.; Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267, at para. 45; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 143; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 684.

[22] The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S. (R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ.

[23] In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of a judge to be genuinely open:

. . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasis added; paras. 57-58.]

[24] Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted, litigants must have confidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger” (1984), 29 McGill L.J. 369, at p. 389.

[25] Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.

[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.):

. . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]

[27] That said, this Court has recognized that a trial judge’s conduct, and particularly his or her interventions, can rebut the presumption of impartiality. In Brouillard v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, for example, the trial judge had asked a defence witness almost sixty questions and interrupted her more than ten times during her testimony. He also asked the accused more questions than both counsel, interrupted him dozens of times, and subjected him and another witness to repeated sarcasm. Lamer J. noted that a judge’s interventions by themselves are not necessarily reflective of bias. On the contrary,

it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. [p. 44]

[28] On the other hand, Lamer J. endorsed and applied the following cautionary comments of Lord Denning in Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.):

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large . . . . [p. 159]

(See also Take and Save Trading CC v. Standard Bank of SA Ltd., 2004 (4) S.A. 1 (S.C.A.), at para. 4.)

[29] Although Lamer J. was not convinced that the trial judge was actually biased, there was enough doubt in his mind to conclude that a new trial was warranted in the circumstances of the case.

[30] In Miglin, another case where the allegation of bias arose because of the trial judge’s interventions, this Court agreed with the Court of Appeal for Ontario that while many of the trial judge’s interventions were unfortunate and reflected impatience with one of the witnesses, the high threshold necessary to establish a reasonable apprehension of bias had not been met. The Court of Appeal observed:

The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, . . . to reflect the overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open to the evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of an unfair trial. Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial.

The assessment of judicial bias is a difficult one. It requires a careful and thorough review of the proceedings, since the cumulative effect of the alleged improprieties is more relevant than any single transgression . . . . [Citations omitted; (2001), 2001 CanLII 8525 (ON CA), 53 O.R. (3d) 641, at paras. 29-30.]

[31] As for how to assess the impact of a judge’s identity, experiences and affiliations on a perception of bias, Cory J.’s comments in S. (R.D.) helpfully set the stage:

Regardless of their background, gender, ethnic origin or race, all judges owe a fundamental duty to the community to render impartial decisions and to appear impartial. It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations. [para. 120]

[32] But it is also important to remember the words of L’Heureux-Dubé and McLachlin JJ. in S. (R.D.), where they compellingly explained the intersecting relationship between a judge’s background and the judicial role:

. . . judges in a bilingual, multiracial and multicultural society will undoubtedly approach the task of judging from their varied perspectives. They will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench. In fact, such a transformation would deny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the judiciary. The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging.

It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function. [paras. 38-39]

[33] Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one. Bora Laskin noted that the strength of the common law lies in part in the fact that

the judges who administer it represent in themselves and in their work a mix of attitudes and a mix of opinions about the world in which they live and about the society in which they carry on their judicial duties. It is salutary that this is so, and eminently desirable that it should continue to be so.

(“The Common Law is Alive and Well — And, Well?” (1975), 9 L. Soc’y Gaz. 92, at p. 99)

[34] The reasonable apprehension of bias test recognizes that while judges “must strive for impartiality”, they are not required to abandon who they are or what they know: S. (R.D.), at para. 29, per L’Heureux-Dubé and McLachlin JJ.; see also S. (R.D.), at para. 119, per Cory J. A judge’s identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them. Justice is the aspirational application of law to life. Judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities. As Martha Minow elegantly noted, the ability to be open-minded is enhanced by such knowledge and understanding:

None of us can know anything except by building upon, challenging, responding to what we already have known, what we see from where we stand. But we can insist on seeing what we are used to seeing, or else we can try to see something new and fresh. The latter is the open mind we hope for from those who judge, but not the mind as a sieve without prior reference points and commitments. We want judges and juries to be objective about the facts and the questions of guilt and innocence but committed to building upon what they already know about the world, human beings, and each person’s own implication in the lives of others. Pretending not to know risks leaving unexamined the very assumptions that deserve reconsideration.

(“Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors” (1992), 33 Wm. & Mary L. Rev. 1201, at p. 1217)

[35] This recognition was reinforced by Cameron A.J. of the Constitutional Court of South Africa in South African Commercial Catering and Allied Workers Union v. Irvin & Johnson Ltd. (Seafoods Division Fish Processing), 2000 (3) S.A. 705:

. . . “absolute neutrality” is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality . . . . Impartiality is that quality of open-minded readiness to persuasion — without unfitting adherence to either party or to the Judge’s own predilections, preconceptions and personal views — that is the keystone of a civilised system of adjudication. Impartiality requires, in short, “a mind open to persuasion by the evidence and the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. [Citations omitted; para. 13.]

[36] Impartiality thus demands not that a judge discount or disregard his or her life experiences or identity, but that he or she approach each case with an open mind, free from inappropriate and undue assumptions. It requires judges “to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies”: Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12. As Aharon Barak has observed:

The judge must be capable of looking at himself from the outside and of analyzing, criticizing, and controlling himself. . . .

The judge is a product of his times, living in and shaped by a given society in a given era. The purpose of objectivity is not to sever the judge from his environment [or] to rid a judge of his past, his education, his experience, his belief, or his values. Its purpose is to encourage the judge to make use of all of these personal characteristics to reflect the fundamental values of the society as faithfully as possible. A person who is appointed as a judge is neither required nor able to change his skin. The judge must develop sensitivity to the dignity of his office and to the restraints that it imposes. [Footnote omitted.]

(The Judge in a Democracy (2006), at pp. 103-4)

[37] But whether dealing with judicial conduct in the course of a proceeding or with “extra-judicial” issues like a judge’s identity, experiences or affiliations, the test remains

whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias . . . . [T]he assessment is difficult and requires a careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties. [Citations omitted; Miglin, at para. 26.]

. R v Richards

Here in R v Richards (Ont CA, 2017) Watt JA canvasses principles applicable to the determination of judicial bias:

[42] No serious dispute arises about the principles that control our decision in this case. A brief reminder will suffice.

[43] First, there is a presumption of judicial integrity, that is to say, that judges will carry out their oath of office: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 117. This presumption is one of the fundamental reasons why the threshold for a successful allegation of actual or apprehended judicial bias is high: S. (R.D.), at para. 117.

[44] Second, this presumption of judicial integrity does not relieve a judge from their sworn duty to be impartial: S. (R.D.), at para. 117.

[45] Third, although the threshold for a successful claim of actual or apprehended bias is high, it is not insurmountable. The presumption of judicial integrity can be displaced by cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias: S. (R.D.), at para. 117.

[46] Fourth, in accordance with general principle, the onus of rebutting the presumption of integrity, or put another way, of demonstrating bias, rests upon the party who alleges it, in this case, the appellant: S. (R.D.), at para. 114.

[47] Fifth, allegations of reasonable apprehension of bias, thus inquiries into whether such a claim has been made out, are entirely fact-specific. It follows that it is simply not possible to examine another case and conclude that the determination of the presence or absence of bias in that case must apply to and control the disposition of the case under consideration: S. (R.D.), at para. 136.

[48] Sixth, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The test is “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.

[49] Inherent in this test is a two-fold objective element. The person considering the alleged bias must be reasonable. And the apprehension of bias must also be reasonable in all the circumstances of the case. The reasonable person must be informed, impressed with the knowledge of all the circumstances, including the traditions of integrity and impartiality that form a part of the background and cognizant of the fact that impartiality is one of the duties judges swear to uphold: S. (R.D.), at para. 111.

[50] Finally, stereotypical reasoning may give rise to a reasonable apprehension of bias: S. (R.D.), at para. 6, Major J. dissenting.

2. Test for Bias

. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC

In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (Ont CA, 2016) an appeal was granted on a rare finding of bias against the motion judge below. The court cited the following principles as applicable to the issue, particularly that of impartiality:

Reasonable Apprehension of Bias

[47] As noted by Abella J. in Yukon Francophone, at para. 21, the Supreme Court has consistently endorsed the test for a reasonable apprehension of bias as set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

“[W]hat would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[48] The strong presumption of judicial impartiality is not easily displaced: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 S.C.R. 357, at para. 22. A reasonable apprehension of bias requires a “real likelihood or probability of bias”: Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, at para. 2; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, per Cory J., at paras. 112-14. The test is an objective one, viewed from the perspective of an informed and reasonable observer: Chippewas of Mnjinkaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), 265 O.A.C. 247, at para. 230, leave to appeal refused, 33613 (July 18, 2010). It is a high burden.

[49] Significantly, in assessing whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings: S. (R.D.), per Cory J., at para. 134; Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 77.

[50] The objective of the test is to ensure both the reality and the appearance of a fair adjudicative process. Both are essential to maintaining public confidence in our system of justice: Yukon Francophone, at paras. 22-23. It is not normally possible to prove actual bias. If the impugned conduct or comments have the cumulative effect of raising a reasonable apprehension of bias, there is no need to consider the impact of the bias.

. R v Nero

In R v Nero (Ont CA, 2016) Canada's Lord Denning, Watt JA, sets out the principles applicable to finding bias on the part of a trial judge:

[29] First, the apprehension of bias must be reasonable, held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it. The test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111; Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60.

[30] Second, the standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality: Committee for Justice and Liberty, at p. 395; Wewaykum, at para. 76. The grounds for the apprehension must be substantial: R.D.S., at para. 112.

[31] Third, as a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence: R.D.S., at para. 114. That party must prove bias on a balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 131

[32] Fourth, the inquiry into a reasonable apprehension of bias is fact-specific. Said in another way, whether a reasonable apprehension of bias arises, all the more so whether it has been established, depends entirely on the circumstances of the case under consideration: R.D.S., at para. 114.

[33] Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 11.

. R v Siddiqi

In R v Siddiqi (Ont CA, 2015) the Court of Appeal characterized the test for bias as follows:

[6] .... To ascertain whether a reasonable apprehension of judicial bias exists, one must ask the question: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?” Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395.

. Laver v. Swrjeski

Here in Laver v. Swrjeski (Ont CA, 2014) the court comments generally on the test for bias:

[17] The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:

[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:

[W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude [?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly[?]

[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.

. Langstaff v. Marson

In Langstaff v. Marson (Ont CA, 2014) the court stated as follows regarding the doctrine of judicial bias:

[24] There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.

[25] Judicial impartiality has been called “the key to our judicial process”: see Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at p. 288. Chief Justice Lamer referred to “public confidence in the impartiality of the judiciary” as “essential to the effectiveness of the court system”: see R. v. Campbell, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para 10. The presumption of impartiality anchors public confidence in the integrity of the administration of justice.

[26] An allegation of bias engages the very foundation of our judicial system. It calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[27] In order to rebut the presumption of impartiality, a test has been developed by the Supreme Court of Canada. It was first articulated by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … [T]hat test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly."

[28] The Supreme Court has repeatedly endorsed this test. In his reasons in R. v. S. (R. D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by de Grandpré J. contains a “two-fold objective element”: not only must the person considering the alleged bias be reasonable, but “the apprehension of bias itself must also be reasonable in the circumstances of the case.” Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[29] This two-fold objective element is based on reasonableness: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable. The reasonable person must be informed and know the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based. A mere suspicion is not enough.

[30] The determination is also fact-specific. In Wewaykum, the Supreme Court held, at para. 77:

[T]his is an inquiry that remains highly fact-specific. In Man O’War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that “This is a corner of the law in which the context, and the particular circumstances, are of supreme importance.” As a result, it cannot be addressed through peremptory rules…there are no “textbook” instances. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.

[31] This stringent test for a party alleging apprehension of bias is grounded in the need to preserve the integrity of the judicial system. It also recognizes the need to maintain the public confidence in the judicial system. The analysis contemplates a hypothetical observer who is informed of all the facts. It does not depend upon the views or conclusions of the litigant.

[32] It has also been held that, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He said:

[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself.... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

[33] This passage was cited with approval by Major J. in his dissenting reasons in S.(R. D.), at para. 11, and by this court in Benedict v. Ontario 2000 CanLII 16884 (ON CA), (2000), 51 O.R. (3d) 147 (C.A.). In Benedict, the court added, at para. 20:

We note that while Lord Denning M.R. spoke in terms of a “real likelihood” rather than a “reasonable apprehension”, in National Energy Board de Grandpré J. took care to state that such variations in the expression used should not generally be treated as involving any substantive difference in the approach to be taken. “Reasonable apprehension”, “real likelihood”, “reasonable likelihood” and “reasonable suspicion” amount to the same standard.

This reasoning accords with the decision of Lord Nolan in R. v. Bow Street Metropolitan Stipendiary Magistrate et al., [1999] 1 All E.R. 577 (H.L.), at p. 592:

[I]n any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality.

The appearance of impartiality was emphasized in Weywakum, at para. 66:

[W]here disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.

. Hazelton Lanes Inc. v. 1707590 Ontario Limited

In Hazelton Lanes Inc. v. 1707590 Ontario Limited (Ont CA, 2014) the Court of Appeal granted an appeal against a trial judge's conduct on the grounds of reasonable apprehension of bias. It cited applicable principles of law as follows:

C. Reasonable apprehension of bias

[58] The test for reasonable apprehension of bias is that set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at pp. 394-95, which reads as follows:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…. [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[59] The Supreme Court of Canada has repeatedly endorsed this test. In his reasons in R. v. S. (R. D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by de Grandpré J. in Committee for Justice and Liberty contains a “two-fold objective element”: not only must the person considering the alleged bias be reasonable, but “the apprehension of bias itself must also be reasonable in the circumstances of the case.”

[60] It has also been held that, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, reflex, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He said:

In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself.... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

[61] This passage was cited with approval by Major J. in his dissenting reasons in S. (R. D.), at para. 11, and by this court in Benedict v. Ontario (2000), 2000 CanLII 16884 (ON CA), 51 O.R. (3d) 147. In Benedict, this court added, at para. 20:

We note that while Lord Denning M.R. spoke in terms of a “real likelihood” rather than a “reasonable apprehension”, in National Energy Board de Grandpré J. took care to state that such variations in the expression used should not generally be treated as involving any substantive difference in the approach to be taken. “Reasonable apprehension”, “real likelihood”, “reasonable likelihood” and “reasonable suspicion” amount to the same standard.

[62] This reasoning accords with the decision of Lord Nolan in R. v. Bow Street Metropolitan Stipendiary Magistrate et al., reflex, [1999] 1 All E.R. 577 (H.L.), at p. 592: “[I]n any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.”

[63] The appearance of impartiality was emphasized in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 66:

[W]here disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.

[64] A review of this court’s recent statements in Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47 (CanLII), 265 O.A.C. 247, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91, at paras. 229-30, and Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 66, at para. 131, reveals the following principles for assessing a claim of reasonable apprehension of bias that are particularly applicable in this case:

• “Impartiality reflects the state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues”: Marchand, at para. 131.

• The threshold for a finding of reasonable apprehension of bias is high. “Courts presume that judges will carry out their oath of office”: Marchand, at para. 131.

• To determine that a reasonable apprehension of bias exists requires “a fact-specific inquiry” that considers “the facts and circumstances of a particular trial”: Chippewas, at para. 230.

• “The party alleging reasonable apprehension of bias has the onus of proving it on the balance of probabilities”: Marchand, at para. 131.

• The grounds for finding a reasonable apprehension of bias must be substantial; establishing an allegation of judicial bias requires “cogent evidence”: Marchand, at para. 131.

[65] If a judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial. Therefore, on appeal, “a finding of actual or apprehended bias will ordinarily result in a new trial”: Marchand, at para. 131.

3. Integrity

. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC

In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (Ont CA, 2016) the court considers the issue of 'integrity', closely-related to bias:

Presumption of Integrity

[45] Judges benefit from a presumption of integrity, which acknowledges that they are bound by their judicial oaths and will carry out their duties in accordance with their legal responsibilities: R. v. Teskey, 2007 SCC 25 (CanLII), [2007] 2 S.C.R. 267, at para. 29. In R. v. Arnaout, 2015 ONCA 655 (CanLII), at para. 18, this court described these responsibilities: “A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.”

[46] Although judges enjoy the benefit of the presumption of integrity, the presumption can be rebutted by a judge’s comments or conduct: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 S.C.R. 282, at para. 27.

4. Bias Contrasted with Conflict of Interest

. Terceira v. Labourers International Union of North America

In Terceira v. Labourers International Union of North America (Ont CA, 2014) the Court of Appeal contrasts bias with conflict of interest where an OLRB adjudicator over a case had previously been retained by one of the parties:

[26] Before this court, it was accepted by all parties that the test set forth in Wewaykum was applicable and not that in MacDonald Estate. This court and others, as well as the OLRB, have consistently applied a reasonable apprehension of bias test to address adjudicators’ prior professional relationships: see, for example, Rando Drugs Ltd. v. Scott, 2007 ONCA 553 (CanLII), 86 O.R. (3d) 641 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 494; Re Marques and Dylex Ltd. (1977), 1977 CanLII 1157 (ON SC), 18 O.R. (2d) 58 (Ont. Div. Ct.); Brick and Allied Craft Union, Local 5 v. International Union of Bricklayers and Allied Craftworkers, Local 6 (2000), 65 C.L.R.B.R. (2d) 287 (OLRB); and Re Suguitan, 2006 CanLII 2415 (ON SC), 2006 CanLII 2415 (S.C.).

[27] The distinction between a claim of conflict of interest by a lawyer and reasonable apprehension of bias by an adjudicator is significant for a number of reasons. In MacDonald Estate, which addresses a lawyer’s potential conflict of interest, the Supreme Court found, at p. 1260, that the imparting of confidential information is presumed to occur. In contrast, in Wewaykum, which addresses a claim of reasonable apprehension of bias of an adjudicator, the Supreme Court established, at para. 59, that impartiality of the adjudicator is presumed. Indeed, there is a strong presumption of judicial (or in this case adjudicative) impartiality and integrity: Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (CanLII), 255 O.A.C. 376, at para 44.

[28] The rules governing a lawyer’s conflict of interest stem, in part, from the existence of a fiduciary relationship and a duty of loyalty owed to the client: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 (CanLII), [2013] 2 S.C.R. 649, at paras. 19, 48; R. v. Neil, 2002 SCC 70 (CanLII), [2002] 3 S.C.R. 631, at pp. 640-644 and MacDonald Estate, at pp. 1243-1246. In contrast, the adjudicator’s duty is anchored in principles of procedural fairness including impartiality: Wewaykum, at paras. 57-59.

[29] The distinction has important implications for the OLRB administrative function. In selecting its adjudicators, the OLRB draws upon the expertise of practitioners from within the labour and employment bar. A presumption of disqualification would operate to disregard this practical reality. As stated by Morden J. in Re Marques and Dylex Ltd., at p. 70: “Most, if not all of those appointed [to the OLRB], are bound to have some prior association with parties coming before the Board.” Having said that, there will of course be instances of adjudicative bias as, for instance, where a decision-maker has a material pecuniary interest in a proceeding.

[30] By applying the incorrect test, the Divisional Court failed to apply the presumption of impartiality. The Divisional Court also failed to conduct a contextual analysis, which requires consideration of a number of factors that are relevant to the reasonable apprehension of bias test: Wewaykum, at paras. 74-93. The inquiry into an allegation of apprehension of bias by an adjudicator is “highly fact-specific” and is evaluated on an objective standard: Wewaykum, at paras. 73, 77. The person considering the alleged bias must be reasonable and the apprehension of bias must be reasonable: Wewaykum, at para 73. To succeed in this case, the Employees would have to establish that reasonable, right-minded and properly informed persons would think that the Vice-Chair was consciously or unconsciously influenced by his participation, about seven years earlier, in a matter resolved at the pleadings stage and of which the Vice-Chair said he had no knowledge of any parts material to the proceeding before him.

5. Bias and Intervention from the Bench

. R. v. Danial

Here in R v Danial (Ont CA, 2016) the Court of Appeal set out principles that apply to questions to witnesses from the bench:

[3] During the testimony of the defence witness, the trial judge perceived a lack of clarity as to the conversation that took place between the witness and Samira. At the conclusion of the witness’ testimony, the judge asked a short series of questions in an effort to clarify when those discussions took place. The appellant submits that these questions raised an apprehension of bias on the part of the trial judge.

[4] We do not accept this submission. There is a presumption of impartiality on the part of the trial judge and a high threshold on the part of an appellant to rebut it.

[5] A trial judge is entitled to ask questions for clarification. The trial judge here followed the long standing protocol articulated in R. v. Stuckey, 2009 ONCA 151 (CanLII) at para 64. He waited until the conclusion of the witness’ testimony, asked questions for clarification on a narrow issue, and allowed further re-examination. That some of the questions towards the end of the series of questions may have been leading would not lead a reasonable observer being apprised of all the facts to conclude that the trial judge was not impartial.

. Laver v. Swrjeski

In Laver v. Swrjeski (Ont CA, 2014) the Court of Appeal also commented on a situation of interventions from the bench in a civil case, here relating to the credibility of police officer witnesses:

[17] The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:

....

[33] In Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal to S.C.C. refused, 33613 (July 18, 2010), at para. 230, this court provided additional guidance:

A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.

[18] In Martin v. Sansome, the appellant was a self-represented litigant. The trial judge tried to help him with procedural issues, but was apparently impatient and frustrated with the slow progress of the trial. On appeal, the court concluded, at para. 39, that, although some of the trial judge’s comments could create the impression of favouring the respondent when viewed in isolation, when the entire record was viewed as a whole, the court was not satisfied that “a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent.”

[19] In this case, the comments of the application judge did not come in the context of witness testimony but during the oral argument of the application. The application judge made two types of comments that could raise a concern in the mind of a reasonable person that he was predisposed to decide the issues before him in favour of the respondent.

[20] The first were comments about the credibility of police officers and his concern about making an adverse credibility finding about a police officer. In this case the respondent and his common law wife were officers while the appellant, the mother, was not.

[21] The second was a number of adverse comments about the credibility of the appellant which were based on misapprehensions of the evidence or the law.

. R v R.B.

In R v R.B. (Ont CA, 2017) the court comments as follows on the issue of when a judge's interjections at trial result in it being compromised:

[4] There is a strong presumption that a judge has not unduly intervened in a trial. The question of whether the interventions led to an unfair trial is undertaken from the perspective of a reasonable observer who was present throughout the trial: R. v. Hamilton, 2011 ONCA 399 (CanLII), 271 C.C.C. (3d) 208, at paras. 29-30. Intervening frequently, without more, does not lead to a miscarriage of justice: R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.). The presence or absence of objections from defence counsel to the judge’s interventions is a relevant factor, although it is not determinative: R. v. Lahouri, 2013 ONSC 2085 (CanLII), 280 C.R.R. (2d) 249 (S.C.), at para. 10.

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• Terceira v. Labourers International Union of North America (Ont CA, 2014)
  
• Hazelton Lanes Inc. v 1707590 Ontario Limited (Ont CA, 2014)
  
• Langstaff v Marson (Ont CA, 2014)
  
• Laver v Swrjeski (Ont CA, 2014)
  
• R v Siddiqi (Ont CA, 2015)
  
• Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) (SCC, 2015)
  
• R. v. Danial (Ont CA, 2016)
  
• R v Nero (Ont CA, 2016)
  
• Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (Ont CA, 2016)
  
• R v Richards (Ont CA, 2017)

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Cases to be integrated