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Bias in Adjudicators - Political. Carolyn Burjoski v. Waterloo Region District School Board
In Carolyn Burjoski v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considers a JR against a school board decision to stop a "presentation to a Committee of the Whole Meeting".
In these quotes, the court considers the applicant's 'bias' argument, partially based on an allegation of 'transphobia':Was there a reasonable apprehension of bias in the decision?
40. Burjoski submits that the statements made by the Chair subsequent to the meeting can leave no doubt that the decision was motivated by bias. She submits that the Chair disparaged her comments as “transphobic”; inexplicably stated that she “questioned the right to exist of trans people”; claimed she had not been “respectful and courteous”; that she engaged in “hate” and “derogatory speech”; and that she had in fact caused “harm.”
41. She argues that these comments are not reflective of a sober and impartial decision maker. She argues that a reasonable person would perceive that the decision maker in this case formed a biased opinion against Burjoski based on his own personal perspective on the issue. Because of this bias, Burjoski submits that the decision should be quashed.
42. The test for bias is objective. In this case, the question that must be answered is whether a reasonable, informed and right-minded person viewing all the facts would believe that the WRDSB had a “closed mind” before making the decision because they were not amenable to persuasion (see: Citizens for Accountable and Responsible Education Niagara Inc v. Niagara District School Board, 2015 ONSC 2058, 335 O.A.C. 101 (Div. Ct.)).
43. The only evidence of bias raised by Burjoski are statements that were made after the meeting. The WRDSB submits that the comments that Burjoski takes issue with merely support the decision that was made after the fact and do not in any way leave a reasonable person to believe that the Chair had a closed mind before he voted in support of the decision. In addition, the decision was made by five members of the elected WRDSB. The Chair also specifically passed the chair position to the Vice-Chair to preside over the vote. Having formed a reason for voting a certain way is not the same as being biased before the vote is cast.
44. I see no basis established upon which any finding of a reasonable apprehension of bias, or any actual bias, on the part of the WRDSB could be justified.
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