Bias - Intervention by Decision-Maker
The issue of excess or intrusive intervention by a decision-maker is often countered by appeal (or judicial review) judges by the lower decision-maker's need to control hearing process. In Ontario administrative law 'control of process' jurisdiction is located in the SPPA [s.9(2) and 25.0.1]. In superior courts it is considered a feature of their inherent jurisdiction.
. R. v. Donnelly
In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered the bias in the form of excess intervention by the judge:
 I see nothing in the record that would meet the high threshold necessary to displace the presumption of judicial impartiality or lead “a reasonable person, properly informed and viewing the matter realistically and practically” to conclude that the trial judge could not decide the case fairly: R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 83-84.. R. v. Davani
 The trial judge did not “intervene” in the Crown’s closing argument but appropriately asked both counsel for assistance with remembering the evidence. ...
In R. v. Davani (Ont CA, 2023) the Court of Appeal considered whether a trial judge's interventions reflected bias (though it wasn't called 'bias'):
 While both the number and nature of the interventions by the trial judge arguably resulted in more criticism of appellant’s counsel than the other two counsel, I do not accept that these comments were either inappropriate or excessive in the context of the seven-week trial, or that they affected the fairness of the trial. As Rosenberg J.A. observed in R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40, “Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please.” The trial judge did not overstep his role by actively engaging with counsel to give directions, seek clarification, and avoid irrelevant and repetitive evidence.. North Elgin Centre Inc. v. City of Richmond Hill
In North Elgin Centre Inc. v. City of Richmond Hill (Div Court, 2023) the Divisional Court considers a tribunal's [the Ontario Land Tribunal] jurisdiction to control it's own process and bias:
 Similarly, the record does not support NEC’s allegation of a reasonable apprehension of bias. After its recusal motion was rejected, NEC refused to participate in the hearing and instead brought repetitive motions, conducted cross-examinations in a dilatory manner, failed to give notice that it would not lead evidence at the Phase 2 hearing, and ignored the procedural directives of the Tribunal. A tribunal is entitled to control its own process and to take steps to require a litigant to behave in a civil manner: Di Blasi v. Regional Municipality of York, 2022 ONSC 7104 (Div. Ct.), at para. 38. The Tribunal’s efforts to control the proceeding and rein in NEC’s conduct does not mean that it was biased.. R. v. Burton
In R. v. Burton (Ont CA, 2023) the Court of Appeal considered whether a judge's questioning was inappropriate (bias):
 Second, Mr. Burton argued that the trial judge improperly asked the witnesses his own questions and based his decision on those answers. There may be circumstances in which a trial judge goes too far in asking questions of witnesses, thereby usurping the role of counsel in the adversarial context: R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 71. However, trial judges are entitled to ask questions of witnesses, for example for the purpose of seeking clarifications or following up on questions asked by counsel: R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230. Ultimately, the issue is “would a reasonably minded person who had been present throughout the trial consider that the accused had not had a fair trial?”: R. v. Imran-Khan, 2021 ONCA 874, at para. 6. In this case, the trial judge asked a few questions, but they were relatively limited and they did not affect the trial fairness. For example, Mr. Burton points to a question the trial judge asked one of the complainants about whether she was receiving any counselling. In his decision, the trial judge then mentioned that this complainant was receiving counselling. While the question was not relevant to the issues at trial, it had no impact on the outcome of the trial nor did it compromise the fairness of the trial.. Di Blasi v. York (Regional Municipality) [for case cites see the link]
In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court held that there was no tribunal member bias where the tribunal excluded a party, who was represented by counsel, for portions of an administrative hearing due to their disruptive behaviour:
 The appellant argues that the Tribunal’s treatment of him during – including: excluding him from a portion of the hearing, giving him peremptory directions, cutting him off when he was speaking, and permitting the allegedly unfair cross examination on his character and truthfulness, created an air of oppression giving rise to a reasonable apprehension of bias. . Democracy Watch v. Canada (Attorney General)
 I do not accept this argument. The Tribunal is entitled to control its own process, and when a litigant before it behaves badly, it is entitled to take steps – including stern steps – to require the litigant to behave in a civil manner, respectful of the Tribunal’s control over its own process. The appellant was treated quickly by the Tribunal in response to his own rudeness and unruliness. The Tribunal’s response was measured and reasonable and enabled the hearing to continue on a reasonable schedule to its conclusion.
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) Stratas JA (sitting alone, but always an interesting read) in the Federal Court of Appeal may be 'pushing the envelope' on the extent to which a judge may involve themselves in legal advocacy in a case, which is normally dealt with as a judicial bias issue. But the underlying issues of near-privative clauses and ultimate justiciability in the political realm is of overwhelming importance (so I for one forgive him ;-):
 Given that this question will be answered by a panel of this Court, I shall keep my explanations concerning the legal uncertainty to a minimum. Nevertheless, it will be helpful to the parties to flag some of the elements of uncertainty. That will assist them in addressing them in their memoranda of fact and law for the application. In the Court’s experience, this sort of approach by the Court often leads to more focussed and more useful submissions: Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85 at paras. 6-12.The cited case quotes (from Teksavvy) were from the same judge and read:
 In these motions, another recent innovation was on display: the use of brief and pointed case management directions to focus and improve the quality of submissions.. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
 Traditionally, a court faced with a dispute is expected to be sphinx-like and silent, expressing no views until all submissions are in. Long ago that approach worked and litigants did not need to labour long to bring their dispute to a hearing. On any legal point, there were at most only a few leading cases, chosen by learned editors and published in law reports.
 But today, the law has become more accessible but less ascertainable. After just a couple of keystrokes, a litigant can find over a hundred cases on intervention, uncurated by an editor. They must be reviewed and sifted. Time runs and costs mount. And for what purpose? Just to tell the court about the law of intervention—law the court already knows well.
 In certain well-trodden areas of law, the Court does know the law. So why shouldn’t it just announce the law at the outset, inviting the parties to correct or supplement it if necessary? There are many ways this can be done. One way is to issue a written direction at the outset of a dispute setting out preliminary views of the law. That is how this Court proceeded in these motions.
 At an early stage in this appeal, three parties filed motions to intervene. The Registry acted swiftly, bringing the motions to the attention of the Court before all submissions were received and before other intervention motions were brought. In response, this Court issued a written direction to assist the three who had already moved and others who were thinking of moving. The direction informed the parties about certain key features of this Court’s law on intervention. Those who had already filed their motions could revise or supplement their submissions by informal letter in light of the direction.
 The direction warned potential interveners that our approach differs from that of some other courts. We have strict criteria governing leave to intervene in Rule 109 and we insist they be fulfilled. Unlike some other courts, for reasons of judicial economy we do not admit all who apply to intervene. This is especially so if most favour one side of the debate. We do not want to create the appearance or the reality of a court-sanctioned gang-up: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174, 414 D.L.R. (4th) 373; Zaric v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 36 at para. 12; Atlas Tube Canada ULC v. Canada (National Revenue), 2019 FCA 120 at para. 12. We also warned potential interveners that, if admitted, they will have to take the issues set by the appellant and as disclosed in the reasons of the Federal Court and neither add to them nor add to the evidentiary record: Rule 109; Tsleil-Waututh Nation at paras. 54-56; Canada (Attorney General) v. Canadian Doctors for Refugee Care, 2015 FCA 34, 470 N.R. 167. We reminded them that we are running a court of law, not a court of policy, and, still less, a legislature, and so those who want to make freestanding policy submissions should wander down the street to lobby a politician for legislation: Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, 474 N.R. 268; Atlas Tube at paras. 4-12.
 By announcing the law in this case in advance without closing our ears to correction and supplementation, we received not a dry recital of law already known to the Court but rather focused submissions on the real issue: how the moving parties’ submissions would further the Court’s practical consideration of the issues. By telling them in advance what we want, we probably ended up with better interveners.
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered whether the tribunal member was biased by their active involvement in the evidence phase of the hearing:
 Second, Ms. Yan suggests that the Panel Chair inappropriately took a more active role in the proceedings. Ms. Yan argues, for example, that the Panel Chair allowed independent legal counsel and College’s counsel to take “lots of time” during cross-examination and to “constantly interrupt the Appellant’s legal representative” during cross-examination.. Uribe v. Tsandelis
 The Court of Appeal in Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 at paras 230-231, 233, 24 set out for trial judges the following regarding interventions during a trial:
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 … Pursuant to the Statutory Powers Procedure Act, RSO 1990, c S.22, s 25.0.1, Discipline Committees have the power to control their processes during a proceeding. And there is no evidence before this Court to suggest that the Panel Chair acted inappropriately in her role during the proceedings.
An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings. …
The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial. ...
In Uribe v. Tsandelis (Ont CA, 2021) the Court of Appeal set out the circumstances that allow, and the procedures for, a judge's questioning a witness:
 A trial judge is entitled to question witnesses for clarification by intervening in the testimony of witnesses. In Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247, at paras. 231, 238 and 243, leave to appeal refused,  S.C.C.A. No. 91, this court considered questioning by a trial judge:. Younis v. Canada (Immigration, Refugees and Citizenship)
An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings. The trial judge here followed the protocol referred to by this court said in R. v. Danial, 2016 ONCA 822, at para. 5:
On occasion, trial judges may be required to play a more active role in asking witnesses questions. However, when they do, it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.
All of that said, appellate courts are reluctant to intervene on the basis that a trial judge "entered the arena" and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. … In the end, an appellate court should only intervene if satisfied that the trial judge's interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased.
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 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. Questions by a trial judge may be problematic when they either disclose bias or lead to trial unfairness. There is a presumption of impartiality on the part of a trial judge and the trial judge’s questions do not disclose bias. Apprehension of bias was not alleged by the appellant.
In Younis v. Canada (Immigration, Refugees and Citizenship) (Fed CA, 2021) the Federal Court of Appeal considered an issue of bias:
 In Miglin v. Miglin, 2003 SCC 24, the Supreme Court of Canada confirmed the test for bias:. R. v. Gager
 The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is 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: R. v. S. (R.D.), 1997 CanLII 324 (SCC),  3 S.C.R. 484, at para. 111, per Cory J.; Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),  1 S.C.R. 369, at pp. 394-95, per de Grandpré J. A finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence (S. (R.D.), at para. 114). As stated by Abella J.A., the 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. […] In Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, (Yukon) the Supreme Court of Canada noted:
 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.): As noted by this Court in ABB Inc. v. Hyundai Heavy Industries Co., 2015 FCA 157, at para. 55: "“[t]he onus of establishing a reasonable apprehension of bias lies with the person who alleges it, and the threshold for perceived bias is high”" (see also R. v. R.D.S., 1997 CanLII 324 (SCC),  3 S.C.R. 484, at para. 114, 151 D.L.R. (4th) 193, and Miglin, at para. 26). In this case, the onus is on Ms. Younis to demonstrate that the Judge was biased or that there was a reasonable apprehension of bias.
... 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 by the Supreme Court; para. 141.]
 Tense exchanges between a judge and counsel, even if the judge’s statements are discourteous, do not necessarily lead to a conclusion that a judge is biased. As noted by the Supreme Court in Miglin:
 […] We see no reason to interfere with the Court of Appeal's assessment of the record, nor with its conclusion that although the trial judge's comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish a reasonable apprehension of bias. Similarly, the Ontario Court of Appeal in Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, (Stuart Budd) noted:
 It is important to acknowledge from the outset that it takes much more than a demonstration of impatience with counsel or even unwarranted discourtesy to rebut the strong presumption of impartiality: Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, at para. 21. The Nova Scotia Court of Appeal also noted, "“[m]omentary friction is not bias”" (2446339 Nova Scotia Ltd. v. AMJ Campbell Inc., 2008 NSCA 9, at para. 105).
 However, courts will be rightly troubled when a motion judge is consistently discourteous towards counsel for no apparent reason. Derisive remarks will therefore be relevant to the issue of bias: see Yukon, at para. 52.
In R. v. Gager (Ont CA, 2020) the Court of Appeal reviewed some principles of bias, especially regarding intervention by the judge:
(b) Reasonable Apprehension of Bias. R. v. Chambers
 Because of the strong presumption of judicial fairness, impartiality and integrity that is not easily displaced, there is a high burden on the party alleging bias to prove on the basis of substantial grounds that there is a real likelihood or probability of the appearance of bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25,  2 S.C.R. 282, at para. 25; Miglin v. Miglin (2001), 2001 CanLII 8525 (ON CA), 198 D.L.R. (4th) 385 (Ont. C.A.), at paras. 29-30, rev’d on other grounds, 2003 SCC 24,  1 S.C.R. 303. As I explain, I am of the view that the appellants have fallen far short of this stringent threshold.
 The well-known test for establishing a reasonable apprehension of bias, as first articulated by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC),  1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting), is as follows:
[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 trial judge], whether consciously or unconsciously, would not decide fairly. As the Supreme Court confirmed in Yukon Francophone School Board, at para. 22: “The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process” (emphasis in original).
 While a judge’s conduct, particularly his or her interventions, can rebut the presumption of impartiality, a judge’s individual comments or interventions must not be seen in isolation. Rather, the impugned conduct must be considered in the context of the circumstances and in the light of the whole proceeding. The inquiry is therefore inherently contextual and fact-specific: see Yukon Francophone School Board, at paras. 25 to 27.
 As Mr. Gager’s counsel on this appeal fairly acknowledged, the appellants would not likely have raised the issue of reasonable apprehension of bias solely on the basis of the trial judge’s alleged verbal interventions, as most of them were justified as being within his case management prerogative as trial judge. This is consistent with the comments of Lamer J. in Brouillard Also Known As Chatel v. The Queen, 1985 CanLII 56 (SCC),  1 S.C.R. 39, at p. 44:[I]t 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.
 As Mr. Gager’s counsel stated in submissions during the mistrial application, a trial is not a tea party: see also Groia v. Law Society of Upper Canada, 2018 SCC 27,  1 S.C.R. 772, at para. 3. This is particularly the case in criminal proceedings where the stakes are so enormously high for the accused. Defence counsel must feel at liberty to forcefully protect their clients’ interests within the bounds of their professional obligations and the rule of law. A trial judge must intervene with caution so as not to create trial unfairness. At the same time, he or she has a right and an obligation to intervene to control the process, even to intervene to rebuke and correct counsel: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946 (Ont. C.A.), at para. 154, leave to appeal refused,  S.C.C.A. No. 66; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 97.
In R. v. Chambers (Ont CA, 2019) the Court of Appeal held that judicial bias did in fact exist, which is rare. The brief criminal case is useful reading for the facts that an appeal court look to in such cases.
 The appellant raises a number of issues in this appeal. We find it necessary to deal with only the allegations of reasonable apprehension of bias. We see the appellant’s complaints as largely centring upon an appearance of unfairness arising from: (a) the trial judge’s conduct during the trial; and (b) the content of the reasons for judgment. We agree that, when the record is considered as a whole, this case gives rise to an appearance of unfairness that resulted in a miscarriage of justice.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:
 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.. Laver v. Swrjeski
 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.
 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.
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:
 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:. R v R.B.
.... 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.”
 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.
 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.
 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.
 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.
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:
 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.