Alleging Impartiality


Reasonable Apprehension of Bias

When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. 

See R. v. S. (R.D.), 1997 CanLII 324 (SCC), at para 109.

Actual Bias Need not be Established

It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), at p. 636.

It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259.

The Legal Test for Reasonable Apprehension of Bias

In the very recent decision of Lloyd v. Bush, 2017 ONCA 252 (CanLII), 2017 CarswellOnt 4246, Justice Rouleau of the Ontario Court of Appeal succinctly restated the test at paragraphs 112 and 113 of that decision: 

[112]    The test for reasonable apprehension of bias has recently been summarized by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 S.C.R. 282. The court cited the classic, undisputed test as follows at para. 20:  

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?

[113]    Judges are afforded a strong presumption of impartiality that is not easily displaced (Yukon, at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 S.C.R. 357, at para. 22). However, as the court noted in Yukon, the presumption of a trial judge's impartiality can be rebutted by the trial judge's conduct, particularly by the manner and frequency of his or her interventions.




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