Reasonable Apprehension of Bias and Waiver

Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, released today online, gives a good summary of apprehension of bias and waiver. The Court holds:

(1) Reasonable Apprehension of Bias

[20] I begin with the governing principles regarding claims of reasonable apprehension of bias.

[21] There is no dispute that the Tribunal, as an adjudicative administrative body, owed a duty of fairness to the respondents in respect of the determination of whether CCBC's registration should be revoked. As observed by Cory J. in R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 92, "It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them."

[22] This duty to act fairly included the duty to provide procedural fairness. And, "an unbiased appearance is, in itself, an essential component of procedural fairness": Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at p. 636. Thus, the demonstration of a reasonable apprehension of bias by the adjudicator would result in a violation of the duty of fairness owed to the respondents by the Tribunal.[3]

[23] The well-settled test for establishing a reasonable apprehension of bias was set out by de Grandpré J. in his dissenting judgment in Committee for Justice and Liberty v. Canada (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. … [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 also Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 60; S.(R.D.), at para. 31; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 81.

[24] The threshold for a finding of real or perceived bias is high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated: S.(R.D.), at paras. 111-14. As stated in Wewaykum at para.

76, citing de Grandpré J. in Committee for Justice and Liberty at p. 395, the grounds for the alleged apprehension of bias must be "substantial".

[25] The question whether a reasonable apprehension of bias arises is a highly fact-specific inquiry. See for example, Wewaykum, at para. 77. This court recently indicated in Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, at para. 230, leave to appeal refused, [2010] S.C.C.A. No. 91, that:

The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial. [Citations omitted.]

Although directed at interventions by a trial judge, I regard these comments as equally applicable to interventions by other adjudicative decision makers.

[26] The court also cautioned in Chippewas, at para. 243: "Isolated expressions of impatience or annoyance by a judge as a result of frustrations … do not of themselves create unfairness." As the court explained at para. 231:

[T]here are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings.

Again, these comments are apposite in this case.

[27] There is also a strong presumption in favour of the impartiality of an adjudicative decision maker: see for example Chippewas, at para. 243; Kelly v. Palazzo (2008), 89 O.R. (3d) 111 (C.A.), at para. 20, leave to appeal refused, [2008] S.C.C.A. No. 152; Peart v. Peel Regional Police Services Board (2006), 217 O.A.C. 269 (C.A.), at para. 39, leave to appeal refused, [2007] S.C.C.A. No. 10; Wewaykum, at paras. 59-60; R. v. A.G. (1998), 114 O.A.C. 336 (C.A.), at para. 42, aff'd [2000] 1 S.C.R. 439; S.(R.D.), at paras. 32 and 114.
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(2) Waiver

[50] In rejecting the Superintendent's waiver claim, the Divisional Court reasoned:

While as a general rule bias allegations should be made directly and promptly, the most egregious comments arose on the twenty-third day of a twenty-five day hearing. [Kannuthurai's] failure to raise concerns about comments made so late in the hearing does not reflect adversely on the genuineness of the apprehension of bias in these circum-stances. The litigant was self-represented and there is no suggestion that he held back as a tactic or to avoid an explanation by the adjudicator. As well, given that the allegations arise solely from the record, a decision of the adjudicator on this issue would not shed additional light on the facts that form the basis of the allegations.

I also agree with the Divisional Court's analysis of this issue.

[51] There is no doubt that where the facts giving rise to a possible apprehension of bias become apparent during the course of a hearing, it is incumbent on the party affected "to put the allegation and the facts on which that party is relying to the decision maker at the earliest possible moment": see David J. Mullan, Essentials of Canadian Law, Administrative Law (Toronto: Irwin Law, 2001), at p. 348. See also R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 11; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at pp. 941-43. In that way, the challenged decision maker is afforded an opportunity to set out its position regarding the bias claim and a reviewing court will have the benefit of a complete record on the issue. This obligation assumes, however, that the pertinent facts are apparent to the affected party and that a voluntary and informed decision might be made whether to advance a bias claim based on those facts.

[52] Brown and Evans, in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publication, 2010) at 11-77 – 11-78, note that objections on the ground of bias are generally deemed to have been waived if the affected party knew of the grounds for the bias claim and acquiesced in the proceedings "by failing to take objection at the earliest practicable opportunity" unless, for example, the affected party "was unrepresented by counsel and did not know of his right to object at the time" (quoting Woolf, Jowell and LeSueur, De Smith's Judicial Review, 6th ed. (London: Sweet & Maxwell, 2007), c. 10-055ff).

[53] It is important to keep in mind that CCBC and Kannuthurai were self-represented litigants. Nothing on the record suggests that Kannuthurai, on his own or CCBC's behalf, appreciated prior to the completion of the hearing that the adjudicator's impugned comments might give rise to a reasonable apprehension of bias claim and, knowing that, that the respondents withheld their allegation of bias for use only if the outcome of the hearing was adverse.

[54] In my view, in the absence of some contrary indication in the record, it is unlikely that these self-represented respondents, although obviously aware of the adjudicator's comments, were also aware of their right to object to the comments during the hearing on the basis of bias and that they elected not to do so at the first opportune moment for tactical or strategic reasons. This case is therefore distinguishable from those cases in which the affected party knew or was advised, during the proceeding at issue, of a potential bias claim and chose not to object: see for example, Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 76 O.R. (3d) 321 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 428.

[55] In Taylor, a case relied on by the Superintendent to support her waiver claim, the matter of bias was not raised until almost eight years after the tribunal hearing and, even then, was only raised in a collateral proceeding. And in Taylor at p. 972, McLachlin J. (as she then was), suggested in respect of a bias claim (in dissent, although not on this point), that the fact that the affected party did not have counsel would militate against a finding of waiver where there was some delay in raising the bias objection.

[56] In this case, the facts giving rise to a potential bias claim emerged in the final days of the Tribunal hearing. The respondents advanced their bias argument as soon as they had retained counsel to conduct their appeal to the Divisional Court. That appeal was undertaken on a timely basis. I am satisfied that this is sufficient to defeat an argument of waiver.