The Test for Reasonable Apprehension of Bias


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.

The reasonable observer 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.

Same Judge, Different Case

That a judge has ruled against a party on a legal issue in one case does not necessarily lead a reasonable observer to conclude that the judge, whether consciously or unconsciously, would likely be biased when deciding a different legal issue with respect to that same party in another case.

Miracle v. Maracle III, 2017 ONCA 195, at para. 4.

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