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Bias in Adjudicators - Prior Involvement with the Party. Teksavvy Solutions Inc. v. Bell Canada
In Teksavvy Solutions Inc. v. Bell Canada (Fed CA, 2024) the Federal Court of Appeal dismisses a CRTC rate-setting appeal.
The court considers a bias issue, here where the appellant "says that the Chair of the CRTC met with a senior officer of the respondent, Bell Canada, while the matter leading to the decision in issue here was pending before the CRTC":[54] Teksavvy raises another incident that it says gives rise to a reasonable apprehension of bias, one that on different facts and circumstances could indeed be problematic. Teksavvy says that the Chair of the CRTC met with a senior officer of the respondent, Bell Canada, while the matter leading to the decision in issue here was pending before the CRTC. For good measure, Teksavvy adds that the Chair attended ten other meetings with industry officials between November 2019 and the date of the decision under appeal. It is unclear whether the Chair attended alone or with other CRTC officials.
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[64] Before closing on this issue, this Court has a general power of supervision over federal tribunals and it would be remiss if it did not offer a word or two about meetings between a regulator and a frequent party before it, such as the one in this case.
[65] Meetings between regulators and regulatees outside of the hearing room are a tricky area.
[66] At one end of the spectrum are meetings that are in the public interest, particularly where the regulator has a policy-making mandate and the regulator and the regulatee are in a long term relationship. Regulators need to understand the industry they regulate and the parties in it, their challenges, needs, aspirations, and plans. And regulatees need to understand the motivations of regulators, their view of the public interest and their need to protect it. It is evident from the register maintained under the Lobbying Act, most regulatees in sectors such as this engage in these meetings. It is accepted that they are part of doing business. For good measure, the preamble to the Lobbying Act has declared lobbying to be a "“legitimate activity”". And the CRTC’s Code of Conduct correctly recognizes that "“[f]ormal and informal contacts with parties with an interest in the communications industry are essential to maintaining and enhancing our expertise and knowledge”".
[67] At the other end of the spectrum are meetings to discuss live issues coming before the regulator or already before the regulator for hearing and decision. In effect, these meetings are means by which secret submissions can be offered outside of the hearing room, away from the eyes and ears of other parties to the hearing and the public. This subverts fairness and should not happen.
[68] Somewhere in the middle are social gatherings. The CRTC’s Code of Conduct permits attendance at social events and other meetings between CRTC members and industry representatives as long as CRTC members do not discuss matters before the CRTC during the events. But this can still invite unwelcome questions that can multiply, with mounting risk.
[69] Looking at this case as an example, why were the two together? What was discussed? Why were just the two of them there without any witnesses? Quite simply, meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.
[70] In the evidentiary record before us is a CRTC policy that offers good practical guidance on this issue. It recognizes the benefits of regulator-regulatee meetings. But it also flags the risks and offers some ways the risks can be mitigated. For example, among other things, the policy suggests that a senior Commission staff person be present at such meetings. It also suggests that the purposes of the meeting be confirmed in writing.
[71] In the end, though, based on the paucity of evidence in this case, the informed, reasonable and right-minded person, viewing the matter realistically and practically and having thought the matter through, would not conclude that there was an actual or apprehended lack of impartiality on the part of the Chair: Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716; S. (R.D.) at para. 31. . Collins v. Canada (Attorney General)
In Collins v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the 'prior judicial involvement' basis of a bias allegation:[19] One or more previous rulings by a judge against a litigant—indeed, the overall win-loss record of a litigant before a judge—cannot, by themselves, demonstrate apparent or apprehended bias. A reasonable, fully informed person appreciates that a judge may rule against a party on a number of occasions. And that person also appreciates that a losing streak may be justified by the facts and the law of the individual cases. See Canada (Attorney General) v. Yodjeu, 2019 FCA 178 at para. 15; Oberlander v. Canada (Attorney General), 2019 FCA 64 at para. 10; Abi-Mansour v. Canada (Passport Canada), 2016 FCA 5 at para. 14; and R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 146 O.A.C. 1, 54 O.R. (3d) 346 at para. 21, aff’d 2002 SCC 51 at para. 1. . Windrift Adventures Inc. v Chief Animal Welfare Inspector
In Windrift Adventures Inc. v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered an applicant's argument that the judge was biased because they had heard prior matters between the parties, and particularly because they refused a stay which was later allowed by the Court of Appeal, pending leave to appeal to that court:[1] Windrift Adventures Inc. (“Windrift”) has raised a preliminary objection based on a concern about reasonable apprehension of bias on the part of Leiper J. The basis for this concern is Leiper J.’s involvement in prior proceedings concerning the same parties. More particularly, Leiper J. was a member of the panel that dismissed one of Windrift’s applications for judicial review on December 6, 2022.
[2] Windrift concedes that this involvement alone would not meet the threshold necessary for disqualification on the basis of reasonable apprehension of bias. However, according to Windrift, that threshold is now met because Leiper J. refused to grant Windrift a stay on January 25, 2023 regarding the enforcement of the account at issue in this proceeding.
[3] Late last week, the Court of Appeal did stay the enforcement of that account pending a hearing for leave to appeal in that court. There is no dispute about the fact that there is a strong presumption of judicial impartiality and that the party who seeks to rebut this presumption bears a heavy burden. As set out 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 the required information …[T]hat test is “what would an informed person reviewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly”. [4] In J.B. v. Ontario (Child and Youth Services) 2020 ONCA 199 at para. 9, the Ontario Court of Appeal found that “a reasonable observer informed of all the facts would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same parties”.
[5] Essentially, Windrift is submitting that while this may be true if the judge in question has been involved in one decision affecting the same party, the calculous changes when that involvement extends to two decisions and the effect of one has been partially reversed by the Court of Appeal. In assessing this argument, it is important to note that there is no allegation of any conduct on the part of Leiper J. that would raise any reasonable basis for any concern about bias in her conduct of the other proceedings. It is also important to note that the proceedings at issue in this court do not involve making any findings of credibility. There are legal proceedings, involving legal arguments and determinations based on that law.
[6] It is also important to note that Windrift has brought a number of proceedings in the Divisional Court in Toronto. The number of judges who are assigned to the Divisional Court is small. Therefore, it is not surprising that one judge could find themselves presiding over more than one matter involving Windrift. Taking into account all of these factors, we find that Windrift has not met its heavy onus of rebutting the strong presumption of judicial impartiality.
[7] Therefore, we are going to proceed to hear the matters today. . Windrift Adventures Inc. v Chief Animal Welfare Inspector
In Windrift Adventures Inc. v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court [on a CJA s.21(5) panel set aside motion] considered the bias issue of the presumption of impartiality of decision-makers, here where a judge was challenged for bias when they sat on a prior hearing regarding the same matter:[29] There is a strong presumption of judicial impartiality and the party who seeks to rebut this presumption bears a heavy burden.[2] As noted 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. …[T]hat test is “what would an informed person, reviewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly.” [30] Of more pertinence to this case, the Ontario Court of Appeal observed in J.B. at para. 9 that: “A reasonable observer, informed of all the facts, would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same party.” That analysis by a reasonable observer does not engage the views or conclusions of a particular litigant before the court.[3] . James v. LSO
In James v. LSO (Div Ct, 2021) the Divisional Court considered whether a judge's finding of lack of credibility of a party in a previous proceeding, was ground for recusing them for bias in another proceeding involving that same party:[24] The Appeal Division also concluded, even if it could be suggested that the appeal panel in the earlier costs appeal was in some manner adversely commenting on the credibility of the appellant, that alone was not sufficient to demonstrate a reasonable apprehension of bias. The appellant provided no evidence of “something more” to show a predisposition by Messrs. Bredt and Epstein that would amount to a pre-judgement of the result of the appeal: see Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465 at para. 45:In terms of the relationship between adverse credibility findings and the reasonableness of a litigant’s apprehension of real or perceived bias, the reasonable person, acting reasonably and properly informed of the law, would take into account the settled principle of law that a judge’s adverse finding regarding a litigant’s credibility in a previous hearing does not in itself create a reasonable apprehension of bias. … Something more is required showing a predisposition by the adjudicator with respect to the accused’s credibility, such as to amount to a pre-judgement of the result of the second hearing. . Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)
In Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal considered the test for bias, here where the original decision-maker heard a later appeal with the same party:[36] The test applicable to the assessment of an allegation of bias like the one made in this case is well known and involves asking, "“what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would [that person] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”" (Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at p. 394 [National Energy Board]). Thus, a claim that circumstances give rise to a reasonable apprehension of bias must be evaluated "“through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail”" (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R (4th) 193 (S.C.C.) at para. 36 [S.(R.D.)]).
[37] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias is inherently contextual and fact-specific (Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 26). In addition, the case law firmly establishes that the threshold for a finding of bias is high; a party alleging bias must rebut a strong presumption of impartiality on the part of the decision-maker and must do so with concrete evidence, as opposed to speculation (National Energy Board at p. 395; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 76-77 [Wewaykum]; S. (R.D.) at paras. 112-114).
[38] A reasonable apprehension of bias—if not a finding of actual bias—may well arise where the same decision-maker makes an initial decision and then sits in appeal from that decision or appoints the appellate decision-maker (see, for example, MacBain v. Lederman, 1985 CanLII 3160 (FCA), [1985] 1 F.C. 856 (FCA), 22 D.L.R. (4th) 119 at paras. 11, 14; Port Colborne Warehousing Ltd. v Canada (Bd. of Steamship Inspection), 73 N.R. 126, 1987CarswellNat 924 at para. 12). In such circumstances, there is a perceived denial of an impartial appellate decision-maker. This sort of circumstance has sometimes been described as a violation of the maxim "“nemo judex in causa sua”" or that no one shall be a judge of that person’s own cause. . Abara v. Hall and Lee
In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court considered 'attitudinal' and other bias in the RTA-LTB context:[42] The appellant directs the Court to Turner v. Northview Apartment Reit.7F[8] In Turner, the Court found that the existence of a reasonable apprehension of bias was present based on the Member’s prior involvement in eviction proceedings against the Tenant. In coming to that conclusion, Wilton-Siegel J. quoted the test for bias adopted in Baker that:... the 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…[T]hat 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.”8F[9] [43] Wilton-Spiegel J. then quoted the Review Boards application of the test:This is an objective test, measured in terms of the impression held by the reasonable observer. The categories in which reasonable apprehension of bias can occur are not closed and vary according to the general principles of procedural fairness. The limits of bias can be examined in the context of antagonism during the hearing, prior association, involvement in the preliminary stage, statutory authorization and attitudinal bias. Generally, an active role in the hearing process or a closed mind is not equivalent to bias. An adjudicator should not however, cast ‘gratuitous aspersions’ on the character or physical attributes of the participant, his counsel or representative. Based upon the text of the order and the hearing recording, I find that none of these factors were apparent in the present case.
In terms of attitude, the trier of fact must not appear predisposed to a particular conclusion and should direct her mind to the claim before her. The hearing recording from June 5, 2018 indicates that the Member offered both sides a full opportunity to present evidence and submissions on the issues of the L2 Application. At no point did she demean, insult or disparage the Tenant or his Legal Representative. Although she expressed some skepticism towards his claims of self-defence, the recording and the order itself confirmed that she allowed the Tenant’s Legal Representative to present this argument in full and thoroughly considered it in the order.9F[10] [44] From my review of the transcripts and the Decision of the Review Board, I do not find reviewing objectively that the conduct of either Member gave rise to a reasonable apprehension of bias. I do not agree that the transcripts show antagonism during the hearing or an attitudinal bias. At no point was there insulting, demeaning, or disparaging statements made at the hearing. Though the Member conducting the hearing could have been more explanatory in their decision making and provided the parties with a better explanation on why there is a lack of jurisdiction, this failure, I do not find, reaches the realm of bias. Moreover, I find no elements of bias in the decision Member Mulima. The complaints the appellant raises are better understood as alleged errors of fact or of mixed fact and law (and as such, not open to challenge on this appeal), not indicators of bias.
[45] Objectively speaking, I do not conclude that an informed person, viewing the matter realistically and objectively would conclude that either Member was biased.
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