Bias in Adjudicators - Prior Involvement with the Party. 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:
 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.. Windrift Adventures Inc. v Chief Animal Welfare Inspector
 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.
 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,  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”. 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”.
 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.
 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.
 Therefore, we are going to proceed to hear the matters today.
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:
 There is a strong presumption of judicial impartiality and the party who seeks to rebut this presumption bears a heavy burden. As noted in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC),  1 S.C.R. 369 at p. 394:. James v. LSO
[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.” 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.
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:
 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:. Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)
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.
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:
 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),  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),  3 S.C.R. 484, 151 D.L.R (4th) 193 (S.C.C.) at para. 36 [S.(R.D.)]).. Abara v. Hall and Lee
 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,  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,  2 S.C.R. 259 at paras. 76-77 [Wewaykum]; S. (R.D.) at paras. 112-114).
 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),  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.
In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court considered 'attitudinal' and other bias in the RTA-LTB context:
 The appellant directs the Court to Turner v. Northview Apartment Reit.7F 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 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. 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.
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
 Objectively speaking, I do not conclude that an informed person, viewing the matter realistically and objectively would conclude that either Member was biased.