Chapter 5: Fairness: Bias

Criteria for reviewing tribunal decision for bias

if right-minded persons would think that, in the circumstances, there was a real likelihood of bias

There must be circumstances from which a reasonable person would think

it is likely that the tribunal member favoured one side unfairly at the expense of the other

T/F: appearance of bias is enough, explain

true; don’t have to show actual bias

Second pillar of procedural fairness

impartiality

What is required to displace the presumption of judicial integrity

strong evidence of a real likelihood of bias

Standard of proof to displace presumption of judicial integrity

higher than balance of probabilities but lower than beyond a reaonable doubt

Two elements of impartiality

individual

institutional

individual impartiality: adjudicators should/must

be free from any type

not prejudge disputes

begin hearings with open mind

reserve judgment until all evidence/arguments have been heard

Institutional impartiality: process must not be designed to suggest

decision will be biased in favour of a specific party or class of party

Institutional impartiality: tribunal must be __ from any government agency that is a party to its hearings

independent from

Actual bias occurs when

decision maker does not approach decision with an open mind and allows bias to impact the process

Possible reasons for actual bias: decision maker

may stand to benefit/lose financially

may have close relationship with a party

may have strong dislike for a party

may believe in sterotypes

Adjudicator should not appear in a case where a reasonable and well-informed observer would

assume the adjudicator would probably be bias because of their outside affiliations or circumstances

Conflict of interest has (narrower or more broad) meaning than individual bias

narrower

Conflict of interest is a

specific kind of bias

Conflict of interest

adjudicator has financial interest in the outcome of a case

Indicators of possible bias

meeting with one party in the absence of the other

having closer friend/family member that may be affected by outcome

belonging to an association that has a position on the issue

accepting gifts or favors from a party or witness

Three factors that help ensure court is independent from government

security of tenure

financial security

administrative independence

Courts have control over their own judicial administration, including

assigning judges to cases

court sittings

direction over admin staff

What factors are used to assess level of tribunal independence

same as those of the court

Factors to consider in assessing agency institutional independence

closeness of relationship between government actors and agency

overlapping functions

need for decision approval by a government department

are members answerable to government

is office held at pleasure or is it fixed-term

are salaries fixed by law or at will of government

are appointments part-time or full time

to what extent does agency chair have discretion over who they can appoint to hear cases

does minister evaluate performance of the chair

what criteria is used in evaluating chair’s performance

Tribunal statute may allow government interference by providing

tribunal must follow government policy

chair must report to minister of department that appears before them

minister has the right to approve tribunal’s rules of procedure

chair must provide any information requested by the minister

budget must be approved by the minister

When should allegation of bias be raised (during or after the hearing)?

during the hearing

Failure to raise allegaiton of bias during the hearing can result in

being barred from raising it on judicial review

possible waiving of any bias

Steps to take if member decides not to step down

make a formal bias application in open court

ask member to make ruling on the application