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Bias in Adjudicators - Test. Davidson v. Canada (Attorney General)
In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considers the test for bias:[15] Further, the well-established test for a reasonable apprehension of bias is whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision‑maker, whether consciously or not, would not decide the matter 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 p. 394, 9 N.R. 115). The onus on demonstrating bias rests with the party alleging it (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 114, 218 N.R. 1). . R. v. M.M.
In R. v. M.M. (Ont CA, 2021) the Court of Appeal considered the appeal ground of bias:[18] The test for a reasonable apprehension of bias is long-standing, and was first set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394 (dissenting):… 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. [Citation omitted.] [19] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific. Further, a presumption of impartiality, not easily displaced, imposes a high burden on the party alleging bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26. . Durham Regional Police Service v. The Ontario Civilian Police Commission
In Durham Regional Police Service v. The Ontario Civilian Police Commission (Div Ct, 2021) the Divisional Court considers the test for bias and impartiality of the administrative decision-maker:[73] The test for reasonable apprehension of bias of an administrative decision-maker concerns the reasonably informed bystander. As stated by de Grandpré J., writing in dissent, in Committee for Justice and Liberty at p. 394:… the 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, 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.” See too: Baker, paras. 45-48.[74] As noted in Baker at para. 47, citing Newfoundland Telephone v. Newfoundland (Public Utilities Board), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, the standards for reasonable apprehension of bias may vary depending on the context and the type of function performed by the administrative decision-maker. There is a strong presumption of impartiality for administrative decision-makers discharging their statutory duties. In order to overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of “serious grounds.” The inquiry is “highly fact-specific” and contextual: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 59, 76 and 77. . McMurter v. McMurter
In McMurter v. McMurter (Ont CA, 2020) the Court of Appeal sets out a test for bias:[26] Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks “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”: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 31. . Laver v. Swrjeski
Here in Laver v. Swrjeski (Ont CA, 2014) the court comments generally on the test for bias:[17] The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:[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[?] [32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.
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