Extracts: Procedural Fairness – Independence and Bias | shannonsalter | May 06, 2015

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Extracts: Procedural Fairness – Independence and Bias

Rex v. Sussex Justices, [1924] 1 K.B. 256, at p. 259:

 

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done."   

Charter of Human Rights and Freedoms, RSQ, c C-12

 

  1. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

 

 

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369.

 

De Grandpre J. (dissent) described the proper test for a reasonable apprehension of bias at page 394:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, 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. In the words of the Court of Appeal, 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 that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

 

And at page 395:

The grounds for this apprehension [of bias] must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.  

It can be seen that there is a great diversity of administrative boards.  Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts.  That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision.  At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors.  With those boards, the standard will be much more lenient.  In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile.  Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors.  For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

 

 

Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing.  This does not of course mean that there are no limits to the conduct of board members.  It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered.  In the end, however, commissioners must base their decision on the evidence which is before them.  Although they may draw upon their relevant expertise and their background of knowledge and understanding, this must be applied to the evidence which has been adduced before the Board.

 

 

The statements made by Mr. Wells before the hearing began on December 19 did not indicate that he had a closed mind.  For example, his statement:  "[s]o I want the company hauled in here -- all them fat cats with their big pensions -- to justify (these expenses) under the public glare... I think the rate payers have a right to be assured that we are not permitting this company to be too extravagant" is not objectionable.  That comment is no more than a colourful expression of an opinion that the salaries and pension benefits seemed to be unreasonably high.  It does not indicate a closed mind.  Even Wells' statement that he did not think that the expenses could be justified, did not indicate a closed mind.  However, should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would indicate a closed mind.  Even at the investigatory stage statements manifesting a mind so closed as to make submissions futile would constitute a basis for raising an issue of apprehended bias.  However the quoted statement of Mr. Wells was made on November 13, three days after the hearing was ordered.  Once the hearing date had been set, the parties were entitled to expect that the conduct of the commissioners would be such that it would not raise a reasonable apprehension of bias.  The comment of Mr. Wells did just that.

 

Once the matter reaches the hearing stage a greater degree of discretion is required of a member.  Although the standard for a commissioner sitting in a hearing of the Board of Commissioners of Public Utilities need not be as strict and rigid as that expected of a judge presiding at a trial, nonetheless procedural fairness must be maintained.  The statements of Commissioner Wells made during and subsequent to the hearing, viewed cumulatively, lead inexorably to the conclusion that a reasonable person appraised of the situation would have an apprehension of bias.

 

IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282

 

The Court concluded:

 

However, in my opinion and for the reasons which follow, the danger that full board meetings    may fetter the judicial independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this Court in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, reaffirmed and applied as the criteria for judicial independence in Valente v. The Queen, supra, at p. 684 (see also p. 689):

 

. . . 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.  In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- concluded . . . ."

Kozak [Geza] v. Canada (Minister of Citizenship and Immigration) 2006 FCA 124.

 

Evans J.A. provides a convenient summary of the appropriate test for bias as follows:

 

52    Although trite, the definition of bias bears repetition. A tribunal's decision is liable to be set aside for bias if a reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. A similar test determines whether a tribunal is independent. Three preliminary considerations may be added to this general proposition.

53    First, the standard of impartiality expected of a particular administrative decision maker depends on context and is to be measured by reference to the factors identified by L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 47. The independence of the Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness.

55    Second, the Board is charged with a uniquely difficult mandate of administrative adjudication. For instance, throughout the 1990s, the Board carried a very heavy caseload and had a large membership. Its approximately 200 members sat across Canada in panels of two. The Board had to keep abreast of the often rapidly changing human rights conditions in the places from which refugee claimants came, and was subject to unpredictable and sudden increases in claimants from particular countries. In addition, because of the often sensitive nature of its subject-matter, the Board operated in the glare of the political and public attention attracted both by individual decisions and more systemic issues, such as the time taken to render decisions and the backlog of cases waiting to be heard.

57    Third, the legal notion of bias connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision maker has been influenced by some extraneous or improper consideration. Similarly, a belief that a decision maker is not independent goes to the improper surrender of freedom as to how disputes should be decided. In determining propriety, the legitimate interests of the agency in the overall quality of its decisions cannot be ignored.

 

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3:

 

Lamer CJ first pointed out the distinction between a lack of impartiality on the part of a particular decision maker and a lack of impartiality at the institutional level at paragraphs 65-67:

 

In R. v. Lippé, [1991] 2 S.C.R. 114, I considered the question of institutional impartiality.  I stated there, at p. 140,

 

Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level.  Although the concept of institutional impartiality has never before been recognized by this Court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this.  Just as the requirement of judicial independence has both an individual and institutional aspect, so too must the requirement of judicial impartiality.

                                                                  . . .

 

Therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met.

 

The respondents' allegations involve institutional impartiality.  The fact that band members may be appointed to appeal tribunals is, in the submission of the respondents, a structural flaw which results in a reasonable apprehension of bias. 

Given that structural impartiality is challenged by the respondents, I would apply the principles elaborated in Lippé, supra, at p. 144 modified for this case:

 

Step One: Having regard for a number of factors including, but not limited to, the potential for conflict between the interests of tribunal members and those of the parties who appear before them, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

 

Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.

 

Lamer CJC then stated at paragraph 73:

 

Thus, I am left with the allegation that a reasonable apprehension of bias exists because tribunal members may not be paid, lack security of tenure, and are appointed by the Band Chiefs and Councils.  It is here that I part company with my colleague Sopinka J.  In my opinion, the respondents' submissions concerning institutional independence raise serious questions about the structure of the appeal tribunals established by the appellant bands….  If the bands' tribunals lack sufficient institutional independence, then this is a relevant factor which must be taken into account in determining whether the respondents should be required to pursue their jurisdictional challenge before those tribunals.

 

Lamer CJC went on to state at paragraph 80:

 

I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent.  Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension.  Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties.   However, I recognize that a strict application of these principles is not always warranted.

 

At paras 83 and 84, Lamer CJC stated:

 

Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue.   The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.

 

In some cases, a high level of independence will be required.  For example, where the decisions of a tribunal affect the security of the person of a party (such as the Immigration Adjudicators in Mohammad, supra), a more strict application of the Valente principles may be warranted.   In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property taxes.  In my view, this is a case where a more flexible approach is clearly warranted.

 

2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919:

 

Section 23 of the Quebec Charter of Human Rights and Freedoms:

 

Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

 

Section 56 of the Quebec Charter states:

 

(1) In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word “tribunal” includes a coroner, a fire investigation commissioner, an inquiry commission, and any person or agency exercising quasi judicial functions.

At para 24, the SCC defined the characteristics of quasi-judicial functions:

In this regard, Minister of National Revenue v. Coopers & Lybrand, [1979] 1 S.C.R. 495, which LeBel J.A. applied in the case at bar, provides a useful classification of the distinctive characteristics of a quasi-judicial act. Dickson J., speaking for the Court, summarized the factors to be considered as follows at pp. 504-5:

It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

(1)  Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2)  Does the decision or order directly or indirectly affect the rights and obligations of persons?

                        (3)  Is the adversary process involved?

(4)  Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense

For a useful illustration of the proper role of counsel to a decision maker, see Khan v. College of Physicians and Surgeons of Ontario (1992), 94 D.L.R. (4th) 193 (Ont. CA):

The ultimate aim of the drafting process is a set of reasons which accurately and fully reflects the thought processes of the Committee. To the extent that consultation with counsel promotes that aim, it is to be encouraged. The debate must fix, not on the Committee's entitlement to assistance in the drafting of reasons, but on the acceptable limits of that assistance.

It must also be recognized that the volume and complexity of modern decision-making all but necessitates resort to "outside" sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any "outside" influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic but also destructive of effective reason-writing.

Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52; [2001] 2 S.C.R. 781:

 

22        However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication.  See generally: Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 S.C.R. 814; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.  Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive.  It is not open to a court to apply a common law rule in the face of clear statutory direction.  Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.

 

23        This principle reflects the fundamental distinction between administrative tribunals and courts.  Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence.  The same constitutional imperative applies to the provincial courts:  Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (the “Provincial Court Judges Reference”).  Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive.  It protected, and continues to protect, the impartiality of judges – both in fact and perception – by insulating them from external influence, most notably the influence of the executive: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p. 69; Régie, at para. 61. 

 

24        Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.  However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it.  While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not.  Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. 

 

29        Nor is a constitutional guarantee of independence implicated in the present case.  The respondent does not argue that the proceedings before the Board engage a right to an independent tribunal under ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms.  Instead, it contends that the preamble to the Constitution Act, 1867 mandates a minimum degree of independence for at least some administrative tribunals.  In support, the respondent invokes Lamer C.J.’s discussion of judicial independence in the Provincial Court Judges Reference.  In that case, Lamer C.J., writing for the majority, concluded that “judicial independence is at root an unwritten constitutional principle . . . recognized and affirmed by the preamble to the Constitution Act, 1867 (para. 83 (emphasis in original)).  The respondent argues that the same principle binds administrative tribunals exercising adjudicative functions.   

 

30        With respect, I find no support for this proposition in the Provincial Court Judges Reference.  The language and reasoning of the decision are confined to the superior and provincial courts.  Lamer C.J. addressed the issue of judicial independence; that is, the independence of the courts of law comprising the judicial branch of government.  Nowhere in his reasons does he extend his comments to tribunals other than courts of law. 

 

McKenzie v. Minister of Public Safety and Solicitor General et al., 2006 BCSC 1372

 

  1. 14.9(3) of the Public Sector Employers Act, which specifically permitted residential tenancy arbitrators to be terminated on with payment of the lesser of 12 month’s notice or the remainder of their term.

 

Members of tribunals

14.9

(3)      The appointment of a person referred to in subsection (1) may be terminated without notice before the end of the term of their appointment on payment of the lesser of

(a)      12 months’ compensation, or

(b)      the compensation in an amount equal to the remuneration otherwise owing until the end of the term.

The key passages of McEwen J’s decision reveal a degree of hostility to the notion that Ocean Port permits administrative decision makers at the more judicial end of the spectrum to have little security of tenure:

 

[150]      Tribunals that are assigned responsibilities lifted straight from the courts’ jurisdiction are obviously different.  If the Respondents are correct, the same function, depending solely on whether it is located in a court or in a tribunal, may require the constitutional protection of a fair and independent arbiter, or may be left to whatever cowed or needy sycophant the government, in its absolute discretion, thrusts into the judgment seat.  This is such an affront to the notion of “a fair and public hearing by an independent and impartial tribunal,” guaranteed in writing elsewhere in the constitutional firmament, and is so fundamentally illogical and arbitrary, that it cannot be reconciled with the concept of the rule of law itself.

[153]      Section 14.9(3) of the PSEA, as interpreted by the Respondents, violates that principle.  So would any provision with the same purpose, no matter how clearly expressed.  Section 14.9(3) is accordingly invalid and of no force and effect against the Petitioner in her function as a residential tenancy arbitrator, as infringing on the constitutional requirement of independence attaching to the function of that office.

Saskatchewan Federation of Labour v. Saskatchewan (Attorney General, Department of Advanced Education, Employment and Labour), 2010 SKCA 27

Section 20 of Saskatchewan’s Interpretation Act stated:

 

20(1) Subject to subsection (2), notwithstanding any other enactment or any agreement, if a person is a member of a board, commission or other appointed body of the Government of Saskatchewan or any of its agencies or Crown Corporations on the day on which the Executive Council is first installed following a general election as defined in The Election Act, the term of office for which that person was appointed is deemed to end on the earlier of:

(a)  the last day of the term for which that person was appointed; or

(b)  a day designated by the Lieutenant Governor in Council or the person who made the appointment.

The Saskatchewan Court of Appeal stated:

24     It is important to state at the outset that the appellants, in pleading their case in the Court of Queen's Bench, did not challenge the validity of O.C. 98/2008 on the basis the statutory authority upon which it was made was unconstitutional. More particularly, they did not allege that sections 19 and 20 of The Interpretation Act,1995, to the extent they purport to apply to persons holding office as members of the Labour Relations Board, run contrary to the unwritten constitutional principle of judicial independence mentioned in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, and are therefore inconsistent with section 52(1) of the Constitution Act, 1982 and of no force or effect.

42     However, these are only general observations, and it cannot be doubted that the relationship between the Board and the government is a matter for the Legislature to determine in the absence of constitutional restraints. And the Legislature can certainly override common law principle: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), supra. But to suppose the Legislature intended by section 19 of The Interpretation Act, 1995 that the chairperson and vice-chairpersons of the Board should be presumed to hold office during pleasure only is to suppose an awful lot. It is to suppose the Legislature, cognizant of both the mandate of the Board under The Trade Union Act and the common law principle of natural justice and all it implies regarding the independence and impartiality of the Board, intended to so override common law principle as to divest the Board of virtually the whole of its independence from the government.

 

 

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May 08, 2015

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shannonsalter

Adjunct Professor

University of British Columbia Faculty of Law

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