|
Bias in Adjudicators - General. Kantoor v. Comparone
In Kantoor v. Comparone (Ont CA, 2023) the Court of Appeal stated basics of bias law:[15] The long-standing test for reasonable apprehension of bias was set out by the Supreme Court of Canada in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 31, citing Grandpré J. (dissenting) in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, as: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. [16] The apprehension of bias must be reasonable in the circumstances of the case, and the person considering the alleged bias must be reasonable and informed: S. (R.D.), at para. 111, per Cory J.
[17] There is a presumption of judicial impartiality and a high burden on the person alleging bias. In Yukon Francophone School Board v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26, the Supreme Court confirmed:Because there is a strong presumption of judicial impartiality that is not easily displaced, 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.
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. [Citations omitted.] . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court considered principles of bias:[59] The grounds for bias, or even a reasonable apprehension of bias, must be substantial and require cogent evidence to rebut a strong presumption of impartiality. The determination of whether a reasonable apprehension of bias is present requires a highly fact-specific and contextual inquiry: see Wewyakum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, and Yukon Francophone School Board Education Area #23 v. Yukon (A.G.), 2015 SCC 25, [2015] 2 S.C.R. 282. The threshold for a finding of real and perceived bias is high. There must be a “real likelihood or probability of bias”. Behaviours including an adjudicator controlling her process, interpreting the evidence, making decision adverse in interest, and intervening and questioning witnesses in an effort to guide the parties towards the relevant issues and evidence does not amount to bias. . Lauzon v. Ontario (Justices of the Peace Review Council)
In Lauzon v. Ontario (Justices of the Peace Review Council) (Ont CA, 2023) the Court of Appeal considered an appeal of a JR of a 'Justices of the Peace Review Council' order that removed the JP from office for disciplinary reasons related to an article she wrote critical of Crown prosecutors and the bail courts. Here the court summarizes principles of bias:(3) Judicial impartiality and bias
[48] Judicial impartiality is critical to justice, fairness, and the rule of law. The presence or absence of impartiality is usually addressed by invoking the well-known test for bias: “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.”[28] The question is to be assessed from the objective perspective of the reasonable person.[29] The evaluation is not subjective. The analysis is fact and circumstance specific.[30] The apprehension must be substantial and realistic, not the apprehension of a “very sensitive or scrupulous conscience”.[31] The Hearing Panel did not expressly self-instruct on these principles. . 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. . Kivisto v. Law Society of Ontario
In Kivisto v. Law Society of Ontario (Div Ct, 2021) the Divisional Court reviewed doctrine on bias:[5] In R. v. Musselman, I described the principles that apply to an allegation of bias or reasonable apprehension of bias as follows:The right to trial before an independent and impartial tribunal is fundamental. It is enshrined expressly in s. 11(d) of the Charter; it is inherent in the principles of fundamental justice guaranteed in Section 7 of the Charter; it is likewise enshrined in the Canadian Bill of Rights, s.2(e) and (f) and in Article 14 of the International Covenant on Civil and Political Rights, to which Canada has been a signatory since 1976. See R. v. Lippe et al. (1991), 1990 CanLII 18 (SCC), 64 CCC (3d) 513 (SCC).
Impartiality is assessed on both a subjective and objective basis, as reflected in the time-honoured principle restated by Cory J. in R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384: “In order to fulfill this duty [of fairness] the decision-maker must be and appear to be unbiased.”
A writ of prohibition may issue where an applicant establishes a reasonable apprehension of bias on the part of the Judge: R. v. Steele (1895), 26 OR 540 (CA); R. v. Handley (1921), 1921 CanLII 427 (NS CA), 54 NSR 470 (CA); Nichols v. Graham (1937), 1937 CanLII 229 (MB QB), 68 CCC 349 (Man. KB).
A “mere possibility” of bias is not sufficient to establish a reasonable apprehension of bias: Ex parte Victory (1893), 32 NBR 249 (CA); Campbell v. Walsh (1910), 1910 CanLII 225 (NB QB), 40 NBR 186 (CA). Rather, the likelihood of bias must be real and substantial: Childs v. The Queen (1958), 1958 CanLII 473 (NB CA), 122 CCC 126 (App. Div.); R. v. Menzies; ex parte Skoff, 1969 CanLII 1014 (ON SC), [1970] 1 CCC 345 (Ont. HC); R. v. Camborne Justices, ex parte Pearce, [1954] 3 WLR 415 (Div. Ct.).
There is a strong presumption that Judges will carry out their judicial functions fairly, independently, and impartially. The threshold for a successful allegation of apprehended bias is high. “However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC 353 (SCC); R. v. Curragh Inc. (1997), 1997 CanLII 381 (SCC), 113 CCC (3d) 481 (SCC).
“Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. It is not a concrete fact but is an inference to be drawn from relevant facts”: Ex parte Perry (1929), 1929 CanLII 432 (PE SCAD), 51 CCC 105 (PEI SC), per Mathieson C.J. As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome. “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.
“The scope of this duty [of fairness] and the rigour with which it is applied will vary with the nature of the tribunal in question. For very good reason it has long been determined that the courts should be held to the highest standard of impartiality.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384, per Cory J.
To establish a reasonable apprehension of bias, the applicant must establish that the reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias: R. v. Moore, ex parte Brooks (1969), 1969 CanLII 425 (ON SC), 6 DLR (3d) 465 (Ont. HC); R. v. McCelvis, ex parte Robbins (1970) 1970 CanLII 1100 (ON SC), 1 CCC (2d) 238 (Ont. HC); Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 DLR (3d) 716.
The test, thus stated, involves two objective elements (see R. v. Bertram [1989] OJ No. 2123 (Ont. HCJ), per Watt J.):i. The person by whom bias is apprehended must be a reasonable person, invested with full knowledge of the circumstances said to give rise to bias; and
ii. The apprehension of bias, itself, must be reasonable and not far-fetched or the product of an overly sensitive mind. For authoritative and compendious statements of the test, see: Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 DLR (3d) 716 (SCC., per de Grandpre J., and the passage from R. v. R.D.S. in the judgment of Langdon J. in Moore, referenced at footnote 11, below.[1] These principles were stated in the context of a criminal trial. The expectation of independence and impartiality applies equally in the context of civil regulatory proceedings, such as the case at bar.[2] . R. v. G.M.C.
In R. v. G.M.C. (Ont CA, 2021) the Court of Appeal considered an issue of bias:[84] Public confidence in the legal system is grounded in the perception “that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so”: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 57; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 23.
[85] In determining the existence of a reasonable apprehension of bias, the test is: what would an informed person conclude, having viewed the matter realistically and practically and having thought the matter through? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly?: 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); Yukon Francophone School Board, at paras. 20-21; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 83.
[86] There is a presumption of judicial impartiality. That presumption may be displaced where the party establishes a “real likelihood or probability of bias”: Yukon Francophone School Board, at para. 25; see also Ibrahim, at para. 84.
[87] A judge’s comments during a trial cannot be considered in isolation. The inquiry is inherently contextual and fact-specific, and there is a correspondingly high burden on the party alleging bias: Yukon Francophone School Board, at paras. 25-26; Ibrahim, at para. 85.
[88] 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. This can serve to alert the trial judge to the possible need to modify their behaviour or for a corrective jury instruction. It may also serve to create an evidentiary record and a ruling for the purpose of an appeal, if necessary: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227. . R v Nero
In R v Nero (Ont CA, 2016), Watt JA - a highly-respected judge - sets out the central 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. . Fabrikant v. Ontario Judicial Council
In Fabrikant v. Ontario Judicial Council (Div Ct, 2021) the Divisional Court considered principles of bias:No bias or reasonable apprehension of bias
[20] In Rogerson v. Havergal, 2020 ONSC 2164, Kimmel J. set out the following principles applicable to a recusal motion based on allegations of bias:[30] The parties agree that the question I must consider and answer when deciding whether to recuse myself is: Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly? See Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, at paras. 20-21.
[31] The “informed” person considering the bias must be an objectively reasonable person, and the apprehension of bias must be objectively reasonable. A reasonable person is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289, at para. 18.
[32] The inquiry is fact specific. A judge may be recused where there is actual bias or a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada., 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at paras. 60 and 77. Bias connotes a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial (Wewaykum, at para. 58). The moving party must establish that the judge suffers from “a condition or state of mind which sways judgement and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 106.
[33] There is a strong presumption that judges will carry out their oath of office by conducting themselves impartially. The apprehension of bias must rest on strong grounds and compelling and cogent evidence. The burden is high on the moving party to show a real likelihood or probability of bias (see Duca, at para. 18). They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11).
[34] The motion for recusal should be made to the judge being asked to recuse himself or herself. See Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851.
|
