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Bias - Principles II

. Fabrikant v. Ontario Judicial Council

In Fabrikant v. Ontario Judicial Council (Div Ct, 2021) the Divisional Court considered principles of bias:
No bias or reasonable apprehension of bias

[20] In Rogerson v. Havergal, 2020 ONSC 2164, Kimmel J. set out the following principles applicable to a recusal motion based on allegations of bias:
[30] The parties agree that the question I must consider and answer when deciding whether to recuse myself is: Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly? See Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, at paras. 20-21.

[31] The “informed” person considering the bias must be an objectively reasonable person, and the apprehension of bias must be objectively reasonable. A reasonable person is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289, at para. 18.

[32] The inquiry is fact specific. A judge may be recused where there is actual bias or a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada., 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at paras. 60 and 77. Bias connotes a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial (Wewaykum, at para. 58). The moving party must establish that the judge suffers from “a condition or state of mind which sways judgement and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 106.

[33] There is a strong presumption that judges will carry out their oath of office by conducting themselves impartially. The apprehension of bias must rest on strong grounds and compelling and cogent evidence. The burden is high on the moving party to show a real likelihood or probability of bias (see Duca, at para. 18). They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11).

[34] The motion for recusal should be made to the judge being asked to recuse himself or herself. See Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851.
. R. v. G.M.C.

In R. v. G.M.C. (Ont CA, 2021) the Court of Appeal considered an issue of bias:
[84] Public confidence in the legal system is grounded in the perception “that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so”: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 57; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 23.

[85] In determining the existence of a reasonable apprehension of bias, the test is: what would an informed person conclude, having viewed the matter realistically and practically and having thought the matter through? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly?: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, at paras. 20-21; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 83.

[86] There is a presumption of judicial impartiality. That presumption may be displaced where the party establishes a “real likelihood or probability of bias”: Yukon Francophone School Board, at para. 25; see also Ibrahim, at para. 84.

[87] A judge’s comments during a trial cannot be considered in isolation. The inquiry is inherently contextual and fact-specific, and there is a correspondingly high burden on the party alleging bias: Yukon Francophone School Board, at paras. 25-26; Ibrahim, at para. 85.

[88] As a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so. This can serve to alert the trial judge to the possible need to modify their behaviour or for a corrective jury instruction. It may also serve to create an evidentiary record and a ruling for the purpose of an appeal, if necessary: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227.
. Davidson v. Canada (Attorney General)

In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considers the test for bias:
[15] Further, the well-established test for a reasonable apprehension of bias is whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision‑maker, whether consciously or not, would not decide the matter fairly (Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, 9 N.R. 115). The onus on demonstrating bias rests with the party alleging it (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 114, 218 N.R. 1).
. Kivisto v. Law Society of Ontario

In Kivisto v. Law Society of Ontario (Div Ct, 2021) the Divisional Court reviewed doctrine on bias:
[5] In R. v. Musselman, I described the principles that apply to an allegation of bias or reasonable apprehension of bias as follows:
The right to trial before an independent and impartial tribunal is fundamental. It is enshrined expressly in s. 11(d) of the Charter; it is inherent in the principles of fundamental justice guaranteed in Section 7 of the Charter; it is likewise enshrined in the Canadian Bill of Rights, s.2(e) and (f) and in Article 14 of the International Covenant on Civil and Political Rights, to which Canada has been a signatory since 1976. See R. v. Lippe et al. (1991), 1990 CanLII 18 (SCC), 64 CCC (3d) 513 (SCC).

Impartiality is assessed on both a subjective and objective basis, as reflected in the time-honoured principle restated by Cory J. in R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384: “In order to fulfill this duty [of fairness] the decision-maker must be and appear to be unbiased.”

A writ of prohibition may issue where an applicant establishes a reasonable apprehension of bias on the part of the Judge: R. v. Steele (1895), 26 OR 540 (CA); R. v. Handley (1921), 1921 CanLII 427 (NS CA), 54 NSR 470 (CA); Nichols v. Graham (1937), 1937 CanLII 229 (MB QB), 68 CCC 349 (Man. KB).

A “mere possibility” of bias is not sufficient to establish a reasonable apprehension of bias: Ex parte Victory (1893), 32 NBR 249 (CA); Campbell v. Walsh (1910), 1910 CanLII 225 (NB QB), 40 NBR 186 (CA). Rather, the likelihood of bias must be real and substantial: Childs v. The Queen (1958), 1958 CanLII 473 (NB CA), 122 CCC 126 (App. Div.); R. v. Menzies; ex parte Skoff, 1969 CanLII 1014 (ON SC), [1970] 1 CCC 345 (Ont. HC); R. v. Camborne Justices, ex parte Pearce, [1954] 3 WLR 415 (Div. Ct.).

There is a strong presumption that Judges will carry out their judicial functions fairly, independently, and impartially. The threshold for a successful allegation of apprehended bias is high. “However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the Judge has done gives rise to a reasonable apprehension of bias.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC 353 (SCC); R. v. Curragh Inc. (1997), 1997 CanLII 381 (SCC), 113 CCC (3d) 481 (SCC).

“Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. It is not a concrete fact but is an inference to be drawn from relevant facts”: Ex parte Perry (1929), 1929 CanLII 432 (PE SCAD), 51 CCC 105 (PEI SC), per Mathieson C.J. As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome. “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.

“The scope of this duty [of fairness] and the rigour with which it is applied will vary with the nature of the tribunal in question. For very good reason it has long been determined that the courts should be held to the highest standard of impartiality.” See: R. v. R.D.S. (1997), 1997 CanLII 324 (SCC), 118 CCC (3d) 353 at 384, per Cory J.

To establish a reasonable apprehension of bias, the applicant must establish that the reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias: R. v. Moore, ex parte Brooks (1969), 1969 CanLII 425 (ON SC), 6 DLR (3d) 465 (Ont. HC); R. v. McCelvis, ex parte Robbins (1970) 1970 CanLII 1100 (ON SC), 1 CCC (2d) 238 (Ont. HC); Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 DLR (3d) 716.

The test, thus stated, involves two objective elements (see R. v. Bertram [1989] OJ No. 2123 (Ont. HCJ), per Watt J.):
i. The person by whom bias is apprehended must be a reasonable person, invested with full knowledge of the circumstances said to give rise to bias; and

ii. The apprehension of bias, itself, must be reasonable and not far-fetched or the product of an overly sensitive mind.
For authoritative and compendious statements of the test, see: Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 DLR (3d) 716 (SCC., per de Grandpre J., and the passage from R. v. R.D.S. in the judgment of Langdon J. in Moore, referenced at footnote 11, below.[1]
These principles were stated in the context of a criminal trial. The expectation of independence and impartiality applies equally in the context of civil regulatory proceedings, such as the case at bar.[2]



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