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Bias in Adjudicators - Recusal. Racco v. Corporation of the City of Vaughan [recusal of councillor]
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 (IC) and the sanctions imposed by Council".
The court considered a 'bias' issue, here where the complainant was another municipal councillor and that councillor did not recuse themselves from Council votes regarding the complaints and the IC recommendations:Did Council demonstrate a reasonable apprehension of bias in its decision?
[38] The question of whether Council’s decisions exhibited a reasonable apprehension of bias because the complainant did not recuse herself is more difficult. However, ultimately, I have concluded there was no reasonable apprehension of bias.
[39] To understand the decision-making role of Council members, it is important to consider the nature of Council and the particular statutory context. Council members are elected to represent their constituents. The decisions they make are voted on in transparent, open sessions. There is no statutory requirement for a Council member to recuse themselves from voting on any matter, except where they have a pecuniary interest: Municipal Conflict of Interest Act, R.S.O. 1990, c. M. 50, s. 5.
[40] There can be no doubt that a Council member would need to recuse him or herself where it was established there was a reasonable apprehension of bias. But the test for bias in this context is stringent. In Old St. Boniface Residents Assn Inc. v. Winnipeg (City), 1990 CanLII 31, [1990] 3 SCR 1170, the question was whether a city councillor who had been personally involved in the planning of a proposed development and had appeared as an advocate for it was disqualified from voting on the related zoning by-law. The court found he was not. Although he had advocated for the development, he did not have a personal interest in it. At p. 1197, the court found the test to be whether a member of council is “capable of being persuaded.”
[41] I have considered the possibility that the current situation is different because it did not involve a council member expressing views on a policy issue. On that question, it is helpful to look to Chiarelli, where the council member was sanctioned by city council for sexual harassment against three women seeking employment in his office. Although the council members themselves were not the complainants, some council members made strong statements in favour of the complainants before the vote. For example, some councillors issued public statements supporting the women and commending them for coming forward. Two council members publicly stated they believed the women’s allegations to be true.
[42] This court concluded that the public statements did not reflect a closed mind on the part of the council members. The court was more troubled by some council members’ actions in refusing to sit with Councillor Chiarelli at Council table and calling on him to resign. Because the penalty council could impose was limited to suspension of remuneration for up to 90 days, resignation was not a publicly available penalty. Demands to resign therefore gave the appearance of pre-judgment on the issue of sanction.
[43] Considering the guidance from Chiarelli, I would not find Council exhibited a reasonable apprehension of bias in this case. To start, Mr. Racco did not raise the allegation of bias before Council and give the complainant a chance to respond or for Council to rule on it. As set out above, this is fatal in most cases. The complainant had no opportunity to express the degree to which she had an open mind on sanction.
[44] I am also not satisfied the nature of the complainant’s interest was sufficient, to be of the type that disqualified her, without needing an inquiry into whether she had an open mind, for two reasons: First, it is anticipated by the wording of s. 223.4(1) of the Act that Council members, or Council as a whole, may make complaints to the IC. If Council as a whole complained to the IC, it could not be expected that all Council members would recuse themselves from a resulting vote. It is therefore possible under the legislation to be both complainant and voting member of Council.
[45] Second, although the complainant lodged complaints about Mr. Racco’s conduct, the role of Council is not to make factual determinations or reach conclusions about conduct. It is only the IC’s report that reaches those types of determinations. Pursuant to s. 223.4(5) of the Act, the role of Council is only to determine whether to impose penalties on a member of Council if the IC reports to the Council that the member has contravened the Code of Conduct. Although she filed the complaints, the complainant did not express an opinion in her complaint on sanction. She could have been of the view that the sanctions recommended by the IC were too lenient or too stringent. However, she did not say anything in the Council meeting at all. There are therefore no comments that reflect any predetermined view on sanction
[46] I also note that, having not made any comments during the Council meeting, the complainant did not try to influence the vote of any other Council member. In all of these circumstances, I am not persuaded Council’s decision exhibited a reasonable apprehension of bias. . R. v. Dalia
In R. v. Dalia (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this brought against "convictions for possession of fentanyl and cocaine for the purpose of trafficking and for possession of the proceeds of crime".
Here the court considers the law of 'recusal':[28] Judges are presumed to act with integrity and impartiality. This presumption can be overcome only based on cogent evidence that something a judge did or said gives rise to a reasonable apprehension of bias: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 45. In other words, “a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could not decide the case fairly”: R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at para. 311, leave to appeal refused, [2025] S.C.C.A. No. 127, citing 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, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.
[29] A recusal does not automatically impugn all earlier decisions. As Goodman J. noted at para. 49 of his ruling: “[I]n both the present case and Victoria, the basis for recusal was not an inherent prejudice against the accused personally, or a pre-existing conflict of interest. The appearance of bias only arose as a result of expressing a view on the ultimate strength of the warrant prior to arriving at that point in the litigation.”
[30] This distinguishes this case from the circumstances in R. v. Davis et al., 2012 ONSC 5526 and R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484. In Davis, the judge who recused himself for reasonable apprehension of bias had discovered mid-trial that a personal issue he previously believed to be resolved with the Canada Revenue Agency (a participant in the proceeding) was ongoing. As a result, he acknowledged that his pre-trial rulings might appear tainted by this conflict. In S. (R.D.), a judge acknowledged a potential bias against a category of persons. Both these cases gave rise to circumstances where a reasonable apprehension of bias could taint all the judge’s prior decisions in respect of a matter. As a result, the interests of justice merited relitigating them.
[31] There is no spectre of past bias here. Krawchenko J. instructed himself on and applied the correct principles governing the application. In recusing himself, his sole concern was whether he had gone too far by expressing his view on the ultimate issue. He did not suggest that his ruling ought to be invalidated or that his past decisions might have been tainted. He removed himself as case management judge to avoid creating an appearance of bias going forward. In this situation, a reasonable person would not be concerned that his comment about the overall merits of the warrant demonstrated a bias that put in doubt the justice of his ruling on cross-examination. . Danso v. The Human Rights Tribunal of Ontario et al.
In Danso v. The Human Rights Tribunal of Ontario et al. (Div Court, 2024) the Divisional Court cites some bias authorities, here on the issue of'recusal':[74] Counsel for the HRTO properly submits that in order to find grounds for concluding bias, or a reasonable apprehension of bias, the Applicant must rebut a strong presumption of impartiality. Such an inquiry must be highly fact-specific and the inquiry contextual (See Hazelton Lanes at paras. 58-65).
[75] In Beard Winter LLP v. Shekhdar, 2016 ONCA 493, at para. 10, the court stated:In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic. [76] In reading the decision, it was up to the Adjudicator to control the process before the Tribunal and interpret the evidence. A decision contrary to the claim of a party is not, in and of itself, sufficient to rebut the strong presumption of impartiality and neutrality: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 (Div. Ct.).
[77] As stated in Moore v. The Estate of Lou Ferro et al., 2022 ONSC 1343 (Div. Ct.), at para. 76, cogent evidence is required to rebut this presumption.
[78] The grounds for finding bias or a reasonable apprehension of bias must be substantial and require cogent evidence to rebut the strong presumption of impartiality: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, 326 O.A.C. 301, at paras. 58–65. . Collins v. Canada (Attorney General)
In Collins v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appellant's 'bias' motion for recusal of one of the assigned court panel, here premised on his past judicial involvement with some of her cases:[1] The appellant moves for an order that Stratas J.A. recuse himself from this appeal. She says that Stratas J.A. is biased against her. She relies on various directions, orders and judgments Stratas J.A. has made or concurred with in cases involving her since 2011.
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A. The principles governing a recusal motion
[3] The Chief Justice assigns judges of this Court to serve on panels to hear and decide cases. The judges have no input into this decision.
[4] In this case, consistent with the Court’s standard practice, Stratas J.A. had no input into the Chief Justice’s decision to assign him to this case.
[5] From time to time, judges receive a list of the cases to which they are assigned. Stratas J.A. learned that he was assigned to this case roughly a month ago. When he was assigned to it, he had no concern about his ability to accept the assignment.
[6] Once assigned to a matter, a judge cannot refuse the assignment or recuse, absent good legal cause.
[7] One example of good legal cause is actual bias in favour of or against a side on all or part of the case. A judge with that mental state must recuse forthwith and refrain from being involved in it at all.
[8] Another legal cause for recusal is if the judge is not actually biased but the circumstances are such that a reasonable, fully informed person, thinking the matter through, would conclude that it is more likely than not that a judge, whether consciously or unconsciously, would not decide the case 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 394.
[9] The two tests—one for actual bias, the other for apparent or apprehended bias—give voice to the fundamental principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. Sussex Justices, [1923] EWHC KB 1, [1924] 1 K.B. 256.
[10] The judge against whom an allegation of actual bias is made, here Stratas J.A., is the only person who can confirm or deny the allegation. Thus, whether acting alone or on a panel, only that judge can decide the issue of actual bias.
[11] But where, as here, the Court is comprised of three judges on a panel and where the individual judge denies the allegation of actual bias, the appearance may nevertheless be such that the judge must recuse for reasons of fairness and to maintain the reputation of the Court and the public’s confidence in the administration of justice. Due to the broader sweep of apparent or apprehended bias—an institutional rather than an individual concern—all three judges comprising the Court must consider and determine the issue.
[12] There is a strong presumption that judges will obey their judicial oaths and act impartially. Unwarranted allegations of judicial bias can harm the administration of justice: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3. Alleging judicial bias is “a serious step that should not be undertaken lightly”: R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 133.
[13] Thus, motions such as this should be brought only where there is a “real likelihood or probability of [actual or apparent] bias”, supported by “cogent evidence”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 at paras. 22 and 27. A wholly unwarranted motion should normally be met with an enhanced award of costs.
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