Apprehension of Bias

Robinson v Lepage, 2015 ONSC 3128 (CanLII)

[19] The test for ascertaining whether there is a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice v. The National Energy Board, 1976 CanLII 2 (SCC), (1978) 1 S.C.R. 369:

…the 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…That 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 the Decision maker, whether consciously or unconsciously, would not decide fairly.

[20] Whether Deputy Judge Gilbert was aware of the ethical guidelines of the CJC is not material. He had received a financial donation from the paralegal company representing the Respondent along with a personal message from the paralegal, herself.

[21] When the Appellant learned of Deputy Judge Gilbert’s relationship with Phoenix Paralegal & Advocacy and the Respondent’s representative, Tami Cogan, after receiving the decision of the court, he could not but think that he did not receive a fair trial and that the judge was biased in favour of the Respondent (Plaintiff). Any informed person, viewing the matter realistically and practically would arrive at the same conclusion.

[22] Deputy Judge Gilbert should have recused himself on his own volition under the circumstances.

[23] All of this information should have been disclosed by Deputy Judge Gilbert to the Appellant before the commencement of the trial and it was not. Failure to make disclosure denied the Appellant the opportunity to ask for an adjournment or to request that the judge recuse himself.

[24] It is my finding that the Appellant has established that Deputy Judge Gilbert demonstrated a reasonable apprehension of bias. Consequently, there is no reason to address the other grounds of appeal.

[25] The appeal is allowed. The decision of Deputy Judge Gilbert is set aside. The registrar of the Small Claims Court is directed to schedule a new trial date.

Terceira v. Labourers International Union of North America, 2014 ONCA 839 (CanLII)

[1] The main issue on this appeal is the application of the test governing a request for the disqualification of an Ontario Labour Relations Board Vice-Chair on the basis of reasonable apprehension of bias in circumstances where he had previously acted for one of the parties appearing before the Board.

[26] Before this court, it was accepted by all parties that the test set forth in Wewaykum was applicable and not that in MacDonald Estate. This court and others, as well as the OLRB, have consistently applied a reasonable apprehension of bias test to address adjudicators’ prior professional relationships: see, for example, Rando Drugs Ltd. v. Scott, 2007 ONCA 553, 86 O.R. (3d) 641 (Ont. C.A.), leave to appeal to S.C.C. refused, (2007) S.C.C.A. No. 494; Re Marques and Dylex Ltd. (1977), 1977 CanLII 1157 (ON SC), 18 O.R. (2d) 58 (Ont. Div. Ct.); Brick and Allied Craft Union, Local 5 v. International Union of Bricklayers and Allied Craftworkers, Local 6 (2000), 65 C.L.R.B.R. (2d) 287 (OLRB); and Re Suguitan, 2006 CanLII 2415 (S.C.).

[27] The distinction between a claim of conflict of interest by a lawyer and reasonable apprehension of bias by an adjudicator is significant for a number of reasons. In MacDonald Estate, which addresses a lawyer’s potential conflict of interest, the Supreme Court found, at p. 1260, that the imparting of confidential information is presumed to occur. In contrast, in Wewaykum, which addresses a claim of reasonable apprehension of bias of an adjudicator, the Supreme Court established, at para. 59, that impartiality of the adjudicator is presumed. Indeed, there is a strong presumption of judicial (or in this case adjudicative) impartiality and integrity: Ontario Provincial Police v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para 44.

[28] The rules governing a lawyer’s conflict of interest stem, in part, from the existence of a fiduciary relationship and a duty of loyalty owed to the client: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, (2013) 2 S.C.R. 649, at paras. 19, 48; R. v. Neil, 2002 SCC 70, (2002) 3 S.C.R. 631, at pp. 640-644 and MacDonald Estate, at pp. 1243-1246. In contrast, the adjudicator’s duty is anchored in principles of procedural fairness including impartiality: Wewaykum, at paras. 57-59.

[29] The distinction has important implications for the OLRB administrative function. In selecting its adjudicators, the OLRB draws upon the expertise of practitioners from within the labour and employment bar. A presumption of disqualification would operate to disregard this practical reality. As stated by Morden J. in Re Marques and Dylex Ltd., at p. 70: “Most, if not all of those appointed [to the OLRB], are bound to have some prior association with parties coming before the Board.” Having said that, there will of course be instances of adjudicative bias as, for instance, where a decision-maker has a material pecuniary interest in a proceeding.

[30] By applying the incorrect test, the Divisional Court failed to apply the presumption of impartiality. The Divisional Court also failed to conduct a contextual analysis, which requires consideration of a number of factors that are relevant to the reasonable apprehension of bias test: Wewaykum, at paras. 74-93. The inquiry into an allegation of apprehension of bias by an adjudicator is “highly fact-specific” and is evaluated on an objective standard: Wewaykum, at paras. 73, 77. The person considering the alleged bias must be reasonable and the apprehension of bias must be reasonable: Wewaykum, at para 73. To succeed in this case, the Employees would have to establish that reasonable, right-minded and properly informed persons would think that the Vice-Chair was consciously or unconsciously influenced by his participation, about seven years earlier, in a matter resolved at the pleadings stage and of which the Vice-Chair said he had no knowledge of any parts material to the proceeding before him.

[31] Given the foregoing, I must consider anew the issue of reasonable apprehension of bias. For the following reasons, I would reinstate the Vice-Chair’s decision.

[32] Fundamentally, the Employees failed to rebut the presumption of impartiality that attached to the Vice-Chair.

[33] The proceeding before the Vice-Chair was a hearing dealing with preliminary motions submitted by LIUNA and Local 183 and, as such, was limited in scope. Mr. O’Brien’s length of service with an entity related to Local 183, if relevant at all, was only germane to the remedial stage of the Application. This was not before the Vice-Chair.

[34] No materials or record of any kind were filed in support of a claim of reasonable apprehension of bias. This is particularly noteworthy given that the client was making the bias allegation rather than an opposing party who might not possess any such materials. The Employees submit that they were unaware that the Vice-Chair was to preside until they entered the hearing room. That said, they did not seek an adjournment.

[35] Mr. O’Brien’s retainer ended about seven years prior and settled at the pleadings stage. It did not include unfair labour practice complaints against LIUNA or Local 183. Examined objectively, there was an inadequate nexus between the factual matrix before the Vice-Chair and the prior retainer by Mr. O’Brien. Furthermore, the Vice-Chair noted, at para. 7 of his reasons dated March 30, 2012:

There was no suggestion by counsel for the applicants that I am in possession of confidential information from Mr. O’Brien that would negatively affect his interests or the interests of the other applicants in this proceeding.

As stated in Rando Drugs Ltd., at para. 29, an adjudicator’s statement that “he or she knew nothing about the case and had no involvement in it will ordinarily be accepted at face value unless there is good reason to doubt it.”

[36] On the issue of being a potential witness, there was no evidence of material facts on which the Vice-Chair might be called to testify nor was there any representation that Mr. O’Brien would waive any solicitor/client privilege that might govern the Vice-Chair’s anticipated testimony.

[37] I therefore conclude that the Vice-Chair’s decision on the issue of reasonable apprehension of bias should be reinstated. As such, there is no need to address the appellants’ submission that the Employees waived their right to object given their failure to object during the four week hearing of the consolidated proceedings.

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