Wednesday, March 8, 2017

Reasonable Apprehension of Bias

Miracle v. Maracle III, 2017 ONCA 195:

[2]            The test for reasonable apprehension of bias laid down and consistently endorsed by the Supreme Court of Canada 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.  (Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21

[3]            The reasonable observer is not a person with a “very sensitive or scrupulous conscience”: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para 31.  Rather, it is the “sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument” and “who takes the trouble to read the text of an article as well as the headlines”:  Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416 (U.K. H.L.), at para. 3.

[4]            In our view, that test is not met in the circumstances of this appeal. The issues arising in Tyendinaga Mohawk Council v. Brant were strictly legal in nature and quite distinct from the issues posed on this appeal. A reasonable observer would not conclude that, because a judge has ruled against a party on a legal issue in one case, that judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

[5]            Moreover, there is absolutely no connection between anything done in the course of Hourigan J.A.’s prior employment in the office of the Attorney General of Ontario and the issues raised on this appeal. There is no merit to the appellant’s contention that Hourigan J.A.’s prior employment gives rise to a reasonable apprehension of bias.

[6]            We further note that, when this appeal was listed for hearing last week, counsel for the appellant made similar allegations of bias against a differently constituted panel. That panel ruled that, while there was no substance to those allegations, the case would be adjourned to a different panel. The repetition of the same complaint today reveals a pattern of conduct on the part of counsel that cannot be condoned. Unfounded claims of bias and repeated requests for adjournments cause delay and impose added cost to other litigants and the court system. Judges have a duty to sit and hear cases to ensure proper and expeditious justice. They must not be dissuaded from fulfilling that duty by groundless allegations of bias.

[7]            We adopt, for the purposes of this appeal, the following statement made by Doherty J.A. in Beard Winter LLP v. Shekhdar, 2016 ONCA 493, [2016] O.J. No. 3257, at para. 10:

It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  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.

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