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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Bias - Administrative Proceedings

. Sternberg v Ontario Racing Commission

In Sternberg v Ontario Racing Commission (Div Ct, 2008), the applicant lawyer sought to quash a decision that he be barred from appearing before the Commission until he apologized for alleged misconduct. The court application was grounded in bias as the Commission panel making the misconduct finding included two of the original members whom he is alleged to have offended, and because the reasons in the contempt decision were prepared before the hearing was conducted (and as well mistated the fact that he had not apologized).

The application was allowed for these reasons, and additionally because the 'misconduct' hearing was essentially a contempt hearing, which jurisdiction resides with the Divisional Court [SPPA s.13(1)(c)] and - at least with respect to professional discipline, the Law Society - not the Commission. As well, the applicant was denied the oppourtunity to make submissions as to penalty.

. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court set out the standard for an administrative decision-maker's bias:
[66] It is a fundamental principle of law that any decision-maker must be impartial and unbiased. There is a presumption that tribunals such as the Discipline Committee of the College will act without bias. In Ritchot v The Law Society of Manitoba, 2010 MBCA 13 at paras 37–38, the Manitoba Court of Appeal wrote:
Judges are presumed to be impartial and “[t]he burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality … [to] establish actual bias or a reasonable apprehension of bias” …

A similar presumption of impartiality applies to an administrative tribunal. See Zündel v. Toronto Mayor’s Committee on Community and Race Relations (2000), 2000 CanLII 17137 (FCA), 189 D.L.R. (4th) 131 (Fed. C.A.), application for leave to appeal dismissed, [2000] S.C.C.A No. 322 (QL), in which Sexton J.A. wrote of the “principle that a member of a Tribunal will act fairly and impartially, in the absence of evidence to the contrary” (at para 36). More recently, in Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58 (CanLII), [2003] 2 S.C.R. 624, LeBel J. wrote that “[t]he duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative justice” (at para. 28).
. Corporation of County of Simcoe v. Ontario

In Corporation of County of Simcoe v. Ontario (Div Court, 2022) the Divisional Court characterized what constitutes bias in this judicial review administrative context, here though the bias was alleged against an inspector who testified as to the facts alleged:
Reasonable Apprehension of Bias

[34] Administrative decisions must be made by an impartial decision maker, free from a reasonable apprehension of bias. Actual bias need not be demonstrated, nor must a party prove that the apprehended bias prejudiced or changed the outcome of the case. The test is an objective one. As noted by DeGrandpré J. in Committee for Justice and Liberty v. National Energy Board:
... the 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 decision-maker], whether consciously or unconsciously, would not decide fairly."

The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
The stringency of the test for bias varies with the circumstances, including the context of the decision maker’s activities and the nature of its functions. [9]
. Briarlane v. Limas

In Briarlane v. Limas (Div Ct, 2020) the Divisional Court quotes a standard for bias in an administrative context:
[29] As noted in Roberts v. R., 2003 SCC 45, there is a strong presumption of judicial and quasi-judicial impartiality. In order to overcome that presumption, the burden is on the party alleging bias to provide strong cogent evidence in that regard. The Tenants have provided no such evidence in this case. There is no transcript of the earlier hearing before us. The Tenants’ description of the comments made, however, amount to nothing more than the Member controlling the process. Further, a review of the transcript of the proceedings before the Board on May 6, 2019, raises no indication whatsoever of any bias by the Board towards the Tenants.
. The Association of Professional Engineers of Ontario v. Rew

In The Association of Professional Engineers of Ontario v. Rew (Div Ct, 2020) the Divisional Court stated the bias test applicable to administrative matters:
[55] The test for reasonable apprehension of bias in the administrative law context is whether a reasonably informed bystander could reasonably perceive bias on the part of the adjudicator: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 at 636.


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