Removal of a decision maker for bias

Removal of an adjudicator, whether a judicial officer or otherwise, for bias is a significant step. Parties often, and usually wrongly, see bias where none exists.

Friday's decision in Ontario Provincial Police v. MacDonald, 2009 ONCA 805 gives a useful summary of the law in this regard:

Test for reasonable apprehension of bias

[41] It has long been established that the removal of an adjudicator is appropriate where a reasonable apprehension of bias has been demonstrated. The applicable legal test was set out in Committee for Justice and Liberty v. National Energy Board, [1978] 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 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..."

[42] The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, "[t]he grounds for this apprehension must … be substantial… and the test [will not] be related to the very sensitive… conscience": R. v. S. (R.D.), [1997] 3 S.C.R. 484 at paras. 31 and 37.

[43] The reasonable person also knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at para. 77; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 ( C.A. ).

[44] There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 64 O.R. (3d) 161 ( C.A. ) at paras. 37-39; Chainauskas Estate v. Reed (2009), 251 O.A.C. 209 ( C.A. ) at para. 12.