BCTA 308:Administrative Law

Chapters 7 Administrative Law, Principles & AdvocacyAllegations of Bias Against a Decision Maker

What is bias

•Bias is a lack of neutrality on the part of a decision maker with regard to the issue being decided. If a member of a tribunal is biased, the decision reached by that tribunal can be overturned upon judicial review.

•It is better to deal with the issue of potential bias as the party becomes aware of it.

What is bias

•When deciding whether or not bias exists, the Court does not look into the mind of the judge himself, or whether the judge really would act in favour of one side over another.

•Instead the Courts look at the impression or appearance given to other people. However there must be a real likelihood of bias in the minds of a reasonable observer in order for bias to exist.

Institutional & Individual Bias

•The decision maker must be free of any individual bias. Also the agency must be free of any institutional bias based on its structure or composition.

•One of the main protections against institutional bias is that the administrative agency must be reasonably free from a government agency that is involved in the proceeding.

Institutional & Individual Bias

•Institutional bias becomes a concern if the agency has multiple roles and functions, and these overlap in a way that suggests that some employees have inappropriate influence over the decision maker.

Two Types of Bias

There are two kinds of bias - actual bias and reasonable apprehension of bias.

Examples of actual bias include financial interest in the outcome of the decision, a close, personal connection with one of the parties. The clearest example of a bias would be where an individual sitting on a tribunal is involved in the decision that is being appealed.

Two Types of Bias

Factors that would give rise to concerns about actual bias would include:

• Previous relationships between decision maker and a party• Decision maker or family has financial interest in the

outcome• Belongs to an association that has taken a position on the

issue before the tribunal• Decision maker expressing strong dislike of a party• Decision maker has accepted gifts from one of the parties• Decision maker expresses opinion early on in the

proceeding before all the facts are heard

Reasonable Apprehension of Bias

Reasonable apprehension of bias is less straightforward. It is defined by S. Blake in Administrative Law in Canada as: “a situation where a reasonable person, knowing the facts concerning the member of the tribunal, would suspect that the member may be influenced, albeit unintentionally, by improper considerations to favour one side in the matter he or she is to decide.”

Reasonable Apprehension of Bias

•Reasonable apprehension of bias is more of a notion that bias exists. While there may not be clear facts revealing the bias, a strong argument will support allegations of bias.

•Once bias has been raised, it is up to the tribunal to determine whether or not the bias actually exists.

What is the Effect of Bias

•In Canadian law, a reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision-makers for bias. Bias of the decision-maker can be real or merely perceived. Either may at times be sufficient to remove the decision maker.

How does a party raise the issue of bias

When do you raise a concern about bias?

It is best to raise the issue of bias prior to the tribunal hearing so that the issue can be determined prior to the witnesses starting to give evidence.

How does a party raise the issue of bias

How do you raise it?

Contact the person or organization that has set up the tribunal hearing and informed you of it. Find out who is sitting on the tribunal and what they do. If you believe that one of these tribunal members has actual bias or you have a reasonable apprehension of bias, notify the person or organization in charge of the tribunal hearing.

How does a party raise the issue of bias

How do you raise it?

Sometimes you do not become aware of a concern about bias until the hearing has started. In such a case, you would bring it to the attention of the decision maker. Usually if you wish to have the member remove themselves, you would bring a motion for recusal.

How Does a Party Prove the Issue of Bias

•Those complaining of bias or lack of independence still have to satisfy a very strict, demanding test and the complaint must not be idly or frivolously made, without evidence in support of the claim.

•The requirements of impartiality and independence are common law requirements that can be ousted or modified by statute. Constitutional challenges in this area have largely failed.

What is the test for bias

The test for bias was first stated in Committee for Justice and Liberty v. Canada (National Energy Board), [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. . . . [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude."

What is the test for bias

It was further stated in Melo Sanchez v. Canada, 2011 that:“A reasonable apprehension of bias may be raised where an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide the issue unfairly [emphasis added].”

What should the decision maker do?

•The decision about whether or not to accept a motion for recusal for bias is up to the decision maker, and nobody else.

•Sometimes it makes sense for the decision maker to step down even if they don’t feel there is actual bias, or a reasonable apprehension of bias, as this prevents the proceeding from being tainted and being reviewed or appealed.

What should the decision maker do?

•It is a generally accepted rule that a decision maker should NOT give evidence in his or her own defence of the claim.

•While it may be easy for a decision maker to step down, this would require a new trial to be held, causing delays of time, and additional expense.