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Bias in Adjudicators - Personal Comments by Adjudicator

. Children's Aid Society of Toronto v. R.I.

In Children's Aid Society of Toronto v. R.I. (Ont CA, 2023) the Court of Appeal considered some statements respecting "views on the quality of the judges" made by a lower court judge, here as a potential bias issue:
(ii) Reasonable apprehension of bias

[18] The test for reasonable apprehension of bias is high: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.

[19] I do not see any basis for the Society’s submission that the SCJ judge demonstrated any bias in his conduct of the appeal hearing. The SCJ judge attempted to get the parties to resolve the issue, which was entirely reasonable given the nature of the proceedings. Subrule 2(5)(c) of the Family Law Rules actually requires the court to promote its primary objective of enabling the court to deal with cases justly by “helping the parties to settle all or part of the case”.

[20] The Society also contends that references by the SCJ judge to his “respect for” his “wonderful” colleagues at the OCJ were “over familiar” and therefore gave rise to a reasonable apprehension of bias. I do not see a basis for this submission either. The SCJ judge specifically says that “I don’t know all of them [the judges at this particular courthouse] and I don't know the judge who, by the way, this judge”. In my view, this clarification completely undermines any suggestion of positive bias towards the judge who made the order under appeal. I accept that it would have been preferable if the SCJ judge had not offered his views on the quality of the judges of the OCJ in this fashion. Those views were not relevant to the issues but, more importantly, members of the public could easily misconstrue such comments as suggesting a prior relationship with those judges, including the judge being appealed, that might be seen as undermining the required independent and objective determination of the matter in issue. While I do not believe for a moment that any lack of objectivity occurred, appearances can be equally important to realities.

[21] None of that, however, warrants the suggestion that there was an appearance of bias on behalf of the SCJ judge. The conduct of the SCJ judge does not approach that level.
. Kim v. McIntosh

In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted a family court practice of judge's making 'Case History Reports' that precipitated bias allegations, here when cautionary notes were made with respect to a party. The court explains the issue at paras 38-60.

. 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp.

In 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp. (Ont CA, 2022) the Court of Appeal comments as to the elements of bias:
[45] Second, the appellants advanced a claim of bias with respect to the conduct of the trial judge during the trial and in his reasons. In the latter regard, the trial judge, in his reasons, appears to disparage Mr. Thompson as a businessman or land developer by making reference to him as having a background as a potato farmer, a comment that was taken out of context from the evidence. There were also other unnecessary comments made during the course of the trial that suggested that the trial judge personally identified with Mr. Louch. Further, there were times during the trial when the trial judge made it appear that he was using his own personal experiences and knowledge to supplement the evidence led.

[46] All of these instances were unfortunate. Trial judges should remain vigilant in terms of the appearance of fairness. They should avoid commentary that might suggest to an outside observer that they are not impartial as between the parties. They should also avoid comments that might suggest that they are bringing their own personal knowledge of subjects to bear on the issues in the case. While it is unnecessary for me to reach a conclusion on whether these instances rise to the level of evidencing a reasonable apprehension of bias, it is a cautionary note that is worth repeating.


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Last modified: 10-02-24
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