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Bias in Adjudicators - Personal Comments by Adjudicator. 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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