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Bias in Adjudicators - 'Reasonable Apprehension'. Li v. Canada (Citizenship and Immigration)
In Li v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, here from a court 'direction' (not from an 'order') that "the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready". 'Directions' can't be appealed, thus raising a lack of jurisdiction argument and respondent countered with a Rule 74 motion to 'remove document from the court file', which - in conjunction with the Federal Court's 'plenary' authority under Constitution Act, 1867 s.101 - serves in some Federal Court contexts as a de facto quashing of an appeal.
Here Stratas JA questions an operative distinction between 'actual bias' and 'apprehension of bias' in the context of an exception to a statutory IRPA [s.74(d)] bar on appeals to the FCA without certification of the questions:[15] Next, the appellant alleges that by acting on a letter sent by counsel for the respondents and not waiting for the appellant to respond, the judge created a reasonable apprehension of bias in favour of the respondents.
[16] Actual bias is a judge-made exception to the statutory bars against appeals in the Immigration and Refugee Protection Act. I have not been provided with a case that suggests that an apprehension of bias, as opposed to actual bias, is an exception to the statutory bars and I am aware of none. And it may be that an apprehension of bias does not implicate the rule of law as seriously as an allegation of actual bias and so a judge-made exception should not be recognized. The issue need not be decided here.
[17] In any event, the appellant is making an allegation of procedural fairness, which is not an exception to the statutory bars, and is labelling it as a "“reasonable apprehension of bias”". In the circumstances of this case, this is mere wordplay. When assessing allegations, this Court fastens only onto matters of substance: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[18] Some of the appellant’s submissions come close to and perhaps smack of an allegation of actual bias on the part of the Federal Court. I am sure that the appellant does not mean to allege any actual bias. To be clear, allegations of bias should never be made lightly: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3. There is a strong presumption that judges will carry out their duties properly, and with integrity: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 141 D.L.R. (4th) 193 at para. 32 per L’Heureux-Dubé J. and McLachlin J. (as she then was), and at paras. 116–117 per Major J.; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, per Abella J.; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, per McLachlin C.J. This presumption can be rebutted only by a "“serious”" and "“substantial”" demonstration made by "“convincing evidence”": Wewaykum at para. 76; S. (R.D.) at para. 32; Horne v. Canada (MCI), 2010 FCA 337, 414 N.R. 97 at para. 5. This case falls well short of the mark. . Kivisto v. Law Society of Ontario
In Kivisto v. Law Society of Ontario (Div Ct, 2021) the Divisional Court reviewed the 'reasonable apprehension' aspect of bias:[5] In R. v. Musselman, I described the principles that apply to an allegation of bias or reasonable apprehension of bias as follows: ....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.). ... . Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC
In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (Ont CA, 2016) an appeal was granted on a rare finding of bias against the motion judge below. The court cited the following principles as applicable to the issue, particularly that of impartiality:Reasonable Apprehension of Bias
[47] As noted by Abella J. in Yukon Francophone, at para. 21, the Supreme Court has consistently endorsed the test for a reasonable apprehension of bias as set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:“[W]hat 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.” [48] The strong presumption of judicial impartiality is not easily displaced: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 S.C.R. 357, at para. 22. A reasonable apprehension of bias requires a “real likelihood or probability of bias”: Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, at para. 2; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, per Cory J., at paras. 112-14. The test is an objective one, viewed from the perspective of an informed and reasonable observer: Chippewas of Mnjinkaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), 265 O.A.C. 247, at para. 230, leave to appeal refused, 33613 (July 18, 2010). It is a high burden.
[49] Significantly, in assessing whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings: S. (R.D.), per Cory J., at para. 134; Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 77.
[50] The objective of the test is to ensure both the reality and the appearance of a fair adjudicative process. Both are essential to maintaining public confidence in our system of justice: Yukon Francophone, at paras. 22-23. It is not normally possible to prove actual bias. If the impugned conduct or comments have the cumulative effect of raising a reasonable apprehension of bias, there is no need to consider the impact of the bias. . R v Siddiqi
In R v Siddiqi (Ont CA, 2015) the Court of Appeal characterized the test for bias as follows:[6] .... To ascertain whether a reasonable apprehension of judicial bias exists, one must ask the question: “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?” Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395. . Hazelton Lanes Inc. v. 1707590 Ontario Limited
In Hazelton Lanes Inc. v. 1707590 Ontario Limited (Ont CA, 2014) the Court of Appeal granted an appeal on the grounds of reasonable apprehension of bias:C. Reasonable apprehension of bias
[58] The test for reasonable apprehension of bias is that set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 (S.C.C.), at pp. 394-95, which reads as follows:[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…. [The] 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.” [59] The Supreme Court of Canada has repeatedly endorsed this test. In his reasons in R. v. S. (R. D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by de Grandpré J. in Committee for Justice and Liberty contains a “two-fold objective element”: not only must the person considering the alleged bias be reasonable, but “the apprehension of bias itself must also be reasonable in the circumstances of the case.”
[60] It has also been held that, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality. In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, reflex, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M.R. stressed the importance of the appearance of judicial impartiality. He said:In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself.... It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. [61] This passage was cited with approval by Major J. in his dissenting reasons in S. (R. D.), at para. 11, and by this court in Benedict v. Ontario (2000), 2000 CanLII 16884 (ON CA), 51 O.R. (3d) 147. In Benedict, this court added, at para. 20:We note that while Lord Denning M.R. spoke in terms of a “real likelihood” rather than a “reasonable apprehension”, in National Energy Board de Grandpré J. took care to state that such variations in the expression used should not generally be treated as involving any substantive difference in the approach to be taken. “Reasonable apprehension”, “real likelihood”, “reasonable likelihood” and “reasonable suspicion” amount to the same standard. [62] This reasoning accords with the decision of Lord Nolan in R. v. Bow Street Metropolitan Stipendiary Magistrate et al., reflex, [1999] 1 All E.R. 577 (H.L.), at p. 592: “[I]n any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.”
[63] The appearance of impartiality was emphasized in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 66:[W]here disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. [64] A review of this court’s recent statements in Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47 (CanLII), 265 O.A.C. 247, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91, at paras. 229-30, and Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 66, at para. 131, reveals the following principles for assessing a claim of reasonable apprehension of bias that are particularly applicable in this case:• “Impartiality reflects the state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues”: Marchand, at para. 131.
• The threshold for a finding of reasonable apprehension of bias is high. “Courts presume that judges will carry out their oath of office”: Marchand, at para. 131.
• To determine that a reasonable apprehension of bias exists requires “a fact-specific inquiry” that considers “the facts and circumstances of a particular trial”: Chippewas, at para. 230.
• “The party alleging reasonable apprehension of bias has the onus of proving it on the balance of probabilities”: Marchand, at para. 131.
• The grounds for finding a reasonable apprehension of bias must be substantial; establishing an allegation of judicial bias requires “cogent evidence”: Marchand, at para. 131. [65] If a judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial. Therefore, on appeal, “a finding of actual or apprehended bias will ordinarily result in a new trial”: Marchand, at para. 131.
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