Simon's Megalomaniacal Legal Resources

Bias in Adjudicators - Political

. Economical Insurance Co. v. Abou-Gabal

In Economical Insurance Co. v. Abou-Gabal (Ont Div Ct, 2026) the Ontario Divisional Court allowed a SABS appeal, this brought against LAT findings that denied claims for "entitlement to attendant care benefits and a variety of treatment plans".

Here the court allowed a rarely-successful bias appeal:

Reasonable Apprehension of Bias:

[16] This is a case about reasonable apprehension of bias. There is no claim of actual bias.

[17] The Applicant submits that the test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "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.” (Emphasis added.)

See also Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-26; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.

[18] The Supreme Court has further elaborated on judicial impartiality, bias and prejudice in Yukon and Wewaykum.

[19] The Court stated at paras. 33-34 of Yukon:

33. Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge's identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one. Bora Laskin noted that the strength of the common law lies in part in the fact that

the judges who administer it represent in themselves and in their work a mix of attitudes and a mix of opinions about the world in which they live and about the society in which they carry on their judicial duties. It is salutary that this is so, and eminently desirable that it should continue to be so.

("The Common Law is Alive and Well - And, Well?" (1975), 9 L. Soc'y Gaz. 92, at p. 99)

34. The reasonable apprehension of bias test recognizes that while judges "must strive for impartiality", they are not required to abandon who they are or what they know: [R. v.] S. (R.D.), [1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484,] at para. 29, per L'Heureux-Dube and McLachlin JJ.; see also S. (R.D.), at para. 119, per Cory J. A judge's identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them.

[20] In Wewaykum, at para. 58, bias or prejudice was defined as:

a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

(R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 106.)

[21] The threshold for a finding of a reasonable apprehension of bias is a high one, with the burden on the party seeking to establish a reasonable apprehension of bias. Each case must be examined contextually, and the inquiry is fact-specific.

[22] There is a strong presumption of judicial impartiality that is not easily displaced. The test for reasonable apprehension of bias requires a real likelihood or probability of bias: Yukon, at para. 24.

[23] The Respondent refers to Miller v. The Union of British Columbia Performers, 2021 BCSC 1054, 2021 C.L.L.C. para. 230-042, at para. 95, aff'd 2022 BCCA 358, 2023 C.L.L.C. para. 230-021. In Miller, the British Columbia Supreme Court rejected an argument of reasonable apprehension of bias made on the basis that the adjudicator was an "LGBTQ+ activist". The court relied on a tribunal decision, Oger v. Whatcott, 2018 BCHRT 183, in which the same adjudicator was similarly accused of bias. The adjudicator dismissed the recusal request in part because the "evidence demonstrated only that the member came to the tribunal with experience in human rights law, which is not evidence of bias." The court in Miller endorsed this analysis and held that the petitioner failed to demonstrate that the adjudicator was not impartial.

[24] Many of the cases relied on by the Respondent are instances where an adjudicator's involvement or actions took place prior to their appointment.

[25] There is no dispute that the Adjudicator has a significant employment and volunteer history in advocating for people with autism. The Adjudicator's younger brother has autism. I am not going to set out his entire history of his efforts in this area, as they are set out in detail in the Appellant's factum. I will highlight a few so that the context in which this decision is being made can be understood.

[26] Just prior to being appointed as an adjudicator, the Adjudicator served as a Member of Provincial Parliament from June 7, 2018, until May 3, 2022. Shortly after his term in parliament ended, he is quoted as saying: "This is the reason I ran for elected office, to make sure we were doing a better job supporting kids with special needs. I would say we're in a much better spot today than we were four years ago."

[27] The Adjudicator penned articles advocating for increased support for caregivers of those with autism spectrum disorder. The adjudicator was appointed to the LAT on December 8, 2022. He wrote another article shortly before his appointment to the LAT on August 26, 2022, in an article for thehub.ca. He discussed his role (as an MPP) in arranging a $97 million investment "to improve the experiences and lifelong outcomes for more than 1100 children and youth with complex special needs". He also outlined the difficulties his family experienced in getting improved care for his younger brother. He emphasized that supporting those with special needs was his main motivation for entering politics: "I have written elsewhere of my experience growing up with a younger brother with special needs. It was the driving force for my motivation to enter politics and continues to hold an important place in my heart."

[28] He authored another article on this topic on November 9, 2023 (approximately six months before the hearing underlying this request for reconsideration but, more importantly, it was after his appointment as an adjudicator) for thehub.ca. Here, Vice-Chair Roberts advocated for greater resources to be extended to caregivers and endorsed the Canadian Centre for Caregiving Excellence and the National Caregiving Summit (an organization and an event that he took part in creating).

[29] In the article, the Adjudicator reiterates that his involvement in advocacy for additional support for caregivers stems from his own experiences with his brother, who is on the autism spectrum and deals with severe developmental delays and behavioural challenges. In the article, the Adjudicator states as follows:

It's not an exaggeration to say that without family members assisting with the care of their loved ones our health and social support systems would collapse.

Despite their vital role in the system, caregivers receive little to no support from our governments. Because of this, they often experience high levels of burnout, mental health challenges, and difficulties maintaining jobs.

A few years ago, a group of concerned citizens banded together and, with support from the Azrieli Foundation, launched the Canadian Centre for Caregiving Excellence (CCCE), our first umbrella organization to advocate for caregivers across Canada. This week, CCEC convened Canada's first National Caregiving Summit in Ottawa, which brought together hundreds of advocates, researchers, caregivers, and government partners to kick-start a discussion about how we as a society can better support these vital contributors. I was proud to be a panelist and participant.

The goal is to develop a comprehensive National Caregiver Strategy, which would ensure that we have a coordinated approach nationwide for supporting caregivers. A plethora of problems could be addressed through such a strategy ...

...

So join our conversation! Check out the updates from the summit. And talk to your elected official about what they are doing to support caregivers. Together, we can make sure that caregivers get the supports we need so that we can continue doing what matters most: caring for those we love.

[30] The biography included in the article states as follows:

Jeremy Roberts is the former MPP for Ottawa West - Nepean and is a Senior Fellow at the Munk School of Global Affairs & Public Policy. Views expressed here are his own.

[31] While he is to be commended for his work in this area and adjudicators are not expected to abandon who they are, I accept that in this case a reasonably informed person, viewing the matter realistically and practically would conclude that the adjudicator, whether consciously or unconsciously, would not decide the matter fairly.

[32] Judges and adjudicators all have backgrounds prior to their appointment. However, once appointed, we "divorced ourselves from our past and dedicated ourselves to our new vocation": Fogal v. Canada, 1999 CanLII 7465 (FC), [1999] 164 F.T.R. 99 (F.C.), aff'd [2000] 258 N.R. 97 (F.C.A.), leave to appeal refused, [2001] S.C.C.A. No. 84.

[33] Public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

....

[36] On the second issue, I respectfully disagree with the LAT’s determination that the material the Appellant relied on did not demonstrate a reasonable apprehension of bias. The concern in this case is that the Adjudicator's advocacy for people with autism and their caregivers, continued after his appointment to the LAT. Membership in an association, without more, is not a basis for concluding that a perception of bias can reasonably be said to arise. However, the Adjudicator's ongoing advocacy efforts following his LAT appointment to support caregivers for people with autism, previously described as his "driving force", is sufficient to raise a reasonable apprehension of bias when he is deciding a case specifically determining whether the claimant, who suffers from severe autism, is entitled to attendant care benefits.

[37] Once a hearing is tainted by the appearance of bias, the integrity of the decision requires that the decision in its entirety be declared void, and the entire matter is to be resubmitted for a new hearing.

. 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.