Simon's Megalomaniacal Legal Resources

Bias - Prompt Raising of Allegation Required

. Racco v. Corporation of the City of Vaughan

In Racco v. Corporation of the City of Vaughan (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two municipal councillor-brought JR applications, these against "findings of the Integrity Commissioner and the sanctions imposed by Council".

Here the court considered the effect of not making a bias complaint promptly:

Did the IC exhibit a closed mind with respect to the confidentiality investigation?

[24] I also am not persuaded by Mr. Racco’s submission that the IC exhibited a closed mind with respect to the confidentiality investigation. Mr. Racco relies on comments the IC made during Council’s October 29, 2024 meeting. By that time, the issue of the disclosure of confidential information had crystallized because Mr. Racco’s counsel had sent the complaints form/affidavits to members of Council. The IC indicated at the meeting that she would retain carriage of any complaint about the confidentiality issue. She also explained the reasons for not making the complaint forms/affidavits public, including referring to the confidentiality provisions of the Act and to the goal of protecting complainants and witnesses.

[25] I agree with the IC that Mr. Racco was required to raise this concern to the IC and did not do so. This meant she did not have the opportunity to rule on his allegation that she was biased. Mr. Racco has pointed to a letter dated October 21, 2024 in which he said that “someone other than the present IC” should be found to address the complaints. Those comments were in reference to the email complaints, not the confidentiality complaint. They did not constitute a clear request for the IC to recuse herself with respect to the confidentiality complaint.

[26] This court explained in Chiarelli v. Ottawa (City of), 2021 ONSC 8256, at para. 77 that the requirement to raise an allegation of bias at the first instance, is not a mere technicality. Failure to raise it is fatal in most cases because it does not allow the decision-maker to respond to or rule on the allegation:

This is no mere technicality. An allegation of bias impugns the integrity and conduct of the person against whom it is made. That person is not a party to the underlying conflict, and the allegation by its nature, seeks to cast a neutral party into the conflict itself. That person is entitled to respond to the allegation and, where the allegation of bias is rejected, to explain why they are not biased in fact, and why their conduct does not give rise to a reasonable apprehension of bias. Usually, this is the only chance the person has to respond to serious allegations made against them. If this issue is then pursued on judicial review, it is the task of this court to review the decision on the bias issue – a task we cannot perform since the issue was not raised with the Commissioner and so he has not made a decision on the issue that we can review.

[27] Mr. Racco did not squarely raise his allegation in the proceeding below and I would find he cannot do so now.

. Robinson v. The Corporation of the City of Pickering

In Robinson v. The Corporation of the City of Pickering (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a sanction imposed by Pickering’s City Council for breaches of the City’s Code of Conduct". These breaches related to applicant statements that the Integrity Commissioner found to be false, misrepresentative of the City's policy, and "which exposed the City to a potential breach of the Municipal Freedom of Information and Protection of Privacy Act".

Here the court illustrates that allegations of bias must be made promptly:

[15] The applicant did not raise her allegations of bias in the underlying proceeding and cannot do so now. Much of the evidence and information the applicant relies on in support of her allegations of bias are not properly before the court or not before the court at all. The applicant also did not give the underlying decision-makers an opportunity to rule on this issue. Although she relies on occasions where she has previously stated the Mayor was biased against her, this is not the same as raising the concern in the underlying proceeding and asking the Mayor to recuse himself. This would have given the Mayor an opportunity to consider the request, provide input, and rule on the issue. The applicant’s claim on this point is fatal for the same reason as when she unsuccessfully sought judicial review and alleged bias of previous sanction decisions: Robinson v. Pickering (City), 2025 ONSC 3233 at para. 132.

. Robinson v. Pickering (City)

In Robinson v. Pickering (City) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against "two decisions of council in which council unanimously voted, in the first instance, to suspend the applicant’s salary for 30 days and, in the second, to suspend her salary for 60 days", these "based on recommendations provided by the respondent integrity commissioner, who determined, following investigation of various complaints, that the applicant had violated council’s code of conduct".

The court considers the first raising of a bias issue at the review stage, here in a JR motion to amend the Notice of Application:

Should the applicant’s motion for leave to amend to raise new allegations of bias against the mayor be allowed?

[131] The applicant states that on May 22, 2024, she filed a notice of motion for leave to further amend the notice of application.[80] The applicant seeks to add the mayor of the City as a party respondent in the second judicial review application in respect of the Second Decision. The applicant seeks to advance allegations of bias against the mayor for alleged conduct and statements said to have been made by the mayor during the Council meeting in October 2023 when the Second Decision was made.[81]

[132] I would deny leave to further amend the notice of application. I agree with the respondents that, as was reiterated in Chiarelli,[82] a claim of bias cannot be made for the first time on judicial review; it must be raised before the original decisionmaker. The applicant failed to raise the allegation of the mayor’s alleged bias before City Council, which would have given the mayor an opportunity to consider whether to recuse himself, and if he did not recuse himself, to provide reasons explaining his decision, which would then be available to this court on judicial review. This is fatal to any claim of bias by the applicant against the mayor.

[133] Further, I am satisfied that permitting the amendment at this stage would cause procedural unfairness. First, I am not satisfied that the applicant has provided a compelling explanation for the delay in bringing the motion for leave to further amend. The applicant herself was in attendance at the meeting in question in October 2023. We were advised that a video recording of the meeting was made and uploaded to YouTube essentially the day after the meeting.[83]

. Hunt v. Trevisan et al.

In Hunt v. Trevisan et al. (Ont Divisional Ct, 2025) the Divisional Court dismissed an RTA s.210 appeal, here from orders that "terminated his tenancy and ordered that he move out of the rental unit".

Here the court cites law essentially setting up bias allegations on an attornment basis, ie. if not raised at first oppourtunity the right is waived:

[37] Further, Mr. Hunt submits that the Board Member’s conduct raised a reasonable apprehension of bias. This ground is also without merit. By failing to ask the Board Member at the earliest opportunity to recuse herself or to even raise this issue with the Review Member, Mr. Hunt has impliedly waived any right to advance a claim of bias: Stetler v. Ontario (Agriculture, Food & Rural Affairs Appeal Tribunal), 2005 CanLII 24217 (ON CA), [2005] O.J. No. 2817, para. 99.