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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Bias - Administrative Proceedings

. Ramsay v. Waterloo Region District School Board

In Ramsay v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered a JR by a school board trustee against "the Waterloo Region District School Board (the “WRDSB”) ... which found that he had breached its Code of Conduct for Trustees (“Code of Conduct”) and imposed sanctions upon him as a result".

In these quotes, the JR applicant unsuccessfully challenges a school board disciplinary finding, here for bias:
[43] Ramsay further submits that the Chair’s involvement in the investigation process and his participation in casting votes tainted the decision with bias, or a reasonable apprehension of bias.

[44] Ramsay argues that by making submissions to the Integrity Commissioner the Chair was acting as both investigator and advocate which are roles that are incompatible with his ultimate role as a decision-maker. Ramsay argues that where a decision is made by multiple decision makers and one is disqualified on the basis of bias, the question becomes whether the entire panel is tainted. The Court must therefore evaluate the role of the decision-makers and whether the biased decision-maker had case the deciding vote (see: 101115379 Saskatchewan Ltd. v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 31, [2019] 8 W.W.R. 67).

[45] In this case, the Chair was the deciding vote since a majority of two-thirds is required to confirm any finding that the Ramsay breached the Code of Conduct. But for the casting of the Chair’s vote, the finding could not have been confirmed and the decision would not have been made. Ramsay argues that the Chair’s role as author of the reasons and the necessity of his vote to the decision mean that his reasonable apprehension of bias taints the whole decision.

[46] The WRDSB points out that the Integrity Commissioner invited all of the trustees to make written submissions and that is why the Chair did so. The WRDSB submits that there was nothing wrong with the Chair’s providing of his submission to the Integrity Commissioner after having been invited to do so.

[47] The WRDSB argues that it cannot be said that the Chair’s submissions constituted bias that tainted the entire group of trustees when making the decision. It is evident from the Integrity Commissioner’s report that the Chair’s submissions were not shared with the other WRDSB trustees. The decision-maker in this case was the panel of the WRDSB as a whole, made up of nine voting trustees. There is no evidence that five other trustees who comprised the majority were biased or tainted by the alleged apprehension of bias of the Chair, nor does the Chair’s submission in response to the invitation from the Integrity Commissioner raise any reasonable apprehension that they were biased (see: R. v. Roberts, 2005 SCC 3, [2005] 1 S.C.R. 22).

[48] I agree with the approach taken by the WRDSB to this issue in its argument. Ramsay’s concerns of bias must be evaluated against the particular structure of the board of trustees and its processes for the handling of complaints against any individual trustee. Indeed, it is only a trustee who is able to bring a formal complaint against another trustees. The Code of Conduct prohibits the trustee who filed the complaint from voting on the disciplinary resolution, but does not otherwise prohibit other trustees from being witnesses, providing such information as they may have to the Integrity Commissioner, and participating in the decision-making process. The very nature of many of the requirements of expected conduct of trustees as contained in the Code of Conduct makes it likely that other trustees may often be ‘witnesses” to such conduct. This does not raise any spectre of bias in such a setting.

[49] Accordingly, given the nature of the complaint, the observation that the basic facts underlying it were not disputed, and the context of the decision itself, I conclude that there is no basis for a finding of bias here nor any denial of procedural fairness to Ramsay.
. A. Z. v. Office of the Independent Police Review Director

In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.

In these quotes the court considers bias, here in an statutory and administrative OIPRD (police complaint) context:
[55] A reasonable apprehension of bias is to be determined not from the standpoint of the decision-making organisation, or from that of the complainant. Rather, the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111.

[56] It is not an answer to an allegation of reasonable apprehension of bias to say that there is no evidence that actual bias was displayed by the NRPS investigation into the applicant’s complaints. It is sufficient that if a reasonable and informed person would have reasonable concerns about the ability of the NRPS to conduct an impartial and unbiased investigation into five of its own, a reasonable apprehension of bias would be established.

[57] While public expectations in relation to the police complaints system in Ontario have evolved over the last two decades, it remains open to a police service to investigate a complaint into its own officers.

[58] In his Report on the Police Complaints System in Ontario (Toronto: Ministry of the Attorney General of Ontario, 2005), the Honourable Patrick J. LeSage, Q.C., expressly rejected the proposition that police services could not investigate themselves.

[59] By contrast, the Honourable Michael H. Tulloch (now Chief Justice of Ontario), in his 2017 Report of the Independent Police Oversight Review (Toronto: Queen’s Printer for Ontario, 2017) (“Tulloch Report”), noted, at p. 167:
Many of the people with whom I spoke expressed a strong desire to have an independent, civilian body investigating police misconduct, rather than police services themselves. Irrespective of issues of actual bias, they noted the potential for a perception of bias when police officers investigate other police officers in their same force.
Such views led Tulloch J.A. (as he then was) to recommend that within five years, the OIPRD should be the sole body to investigate police misconduct complaints.

[60] However, this recommendation from the Tulloch Report was not adopted by the government when it enacted the Community Safety and Policing Act, 2019, S.O. 2019, c. 1., Sched. 1. To the contrary, the new legislation, once proclaimed, would create a presumption in favour of having the same police service conduct investigations.

[61] Further, currently, s. 61(5) of the PSA explicitly permits the investigation of a complaint to be referred to the same police service for investigation. The statutory scheme does not require that complaints be sent to a different service, or that they be retained by the OIPRD. In exercising the discretion to retain the complaint or to refer it to the same or different police service, s. 61(6) of the PSA requires the Director to consider the nature of the complaint and the public interest. Further, Rule 7 of the OIPRD’s Rules of Procedure sets out a list of non-exhaustive factors to be considered in making the decision to refer or retain the investigation of a complaint. The OIPRD’s Operational Directive provides further guidance in making this determination.

[62] The applicant relies on the portion of the Operational Directive that provides, as an example of a complaint the Director may retain or refer, “[a]llegations of substandard police investigation of sexual assaults…where effective oversight cannot be achieved by referring the complaint to a different police service other than the one that undertook the original investigation.” However, the Operational Directive provides guidance, not mandatory instruction. It also states that the decision to retain or refer is made on a case-by-case basis. It does not contain a presumption that allegations of substandard police investigation of sexual assaults be retained by the OIPRD or be referred to a different police service than the one that undertook the original investigation.

[63] In the present case, the record clearly demonstrates that at the screening stage, the OIPRD was alert to the question of whether or not investigation of the applicant’s complaints should be undertaken by the NRPS, or by an external force, or by the OIPRD itself. This is evidenced by the fact that one of the four OIPRD personnel involved at the screening stage did support referring the matter out to another police service. The other personnel, however, found that the factors that would support a referral to a different police service were not engaged. It is evident from the record that due consideration was given to the issue.

[64] Contrary to the applicant’s belief, the investigation was not conducted by the same unit as the one to which the complaint pertained. The complaint was investigated by the Professional Standards Unit, as opposed to the Sexual Assault Unit. In the end, two officers were found to have violated certain policies relating to sexual assault investigations and were found to be in neglect of duty.

[65] In addition, the NRPS has a review body, the Sexual Violence Advocate Case Review Team, which examines all sexual assault allegations where charges are not laid. This review body is composed of civilians who represent various advocacy groups in the Niagara region. None of the members of the review body are employees of the NRPS. The review body can make recommendations to the Sexual Assault Unit if its members have a concern about an investigation. The review body did not make any recommendations in this case.

[66] Overall, the OIPRD reviewed the specific circumstances of this case and exercised its discretion to refer the complaint to a different unit of the same police service, where there would also be oversight by a civilian review body. A reasonable person would not find these circumstances raised a reasonable apprehension of bias.

[67] Based on the foregoing, we are not satisfied that there was actual or a reasonable apprehension of bias.
. 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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Last modified: 14-12-23
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