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15 views14 pages

Al4 07

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lostbilla66
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Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 7
Fairness: Bias

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

Impartiality: The Second Pillar of


Procedural Fairness
Second pillar of procedural fairness is impartiality
Two elements of impartiality:
• Individual impartiality: Decision-maker must be
free from individual bias
• Institutional impartiality: Tribunal/agency must
not be structured to suggest that its decisions will
favour one party over another

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 3

Actual Bias and Reasonable


Apprehension of Bias
• It is improper for a decision-maker to hear a case
where he has an actual bias
• It is improper to hear a case where there is a
reasonable apprehension of bias (appearance
of bias to a reasonable, well-informed observer)
• Strong presumption of judicial integrity; burden is
higher than a simple balance of probabilities, but
lower than proof beyond a reasonable doubt
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 4

Elements of Individual Bias

• Bias can arise from conflict of interest, prior


knowledge of facts that are prejudicial to one of
the parties, or a friendship with or dislike of one of
the parties
• Conflict of interest: Any interest, including a
financial interest, incompatible with an individual’s
function as a tribunal member

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 5

Indicators of Possible Bias


When a decision-maker:
• meets with one party in absence of other parties

• has a friendship with or is related to someone


with vested interest in case
• has financial interest in outcome of the case

• belongs to an association with vested interest in


the outcome
• persistently favours one party during hearing

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 6

Indicators of Possible Bias (cont’d)


• shares opinions before evidence & arguments
are heard
• expresses strong like/dislike for a party / witness

• has been in litigation against party/witness

• has had significant professional relationship with


a party/witness
• accepts gifts or favours from a party or witness

• has played a part in the case at any stage

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 7

Elements of Institutional Bias

• The impartiality of a decision-maker is


determined by examining his or her state of mind
• Independence of tribunal is a matter of its status

Requirement of institutional impartiality


• Statutory exceptions: A built-in bias will be
acceptable if it is required by statute and not
unconstitutional

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 8

Does Agency–Gov’t Relationship


Contribute to Institutional Bias?
Most important considerations:
• Closeness of relationship between
agency/tribunal and government department
affected by its decisions
• Whether agency has multiple functions that
overlap such that some employees have
inappropriate influence over others (see Changes
at the Immigration and Refugee Board)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 9

Agency–Gov’t Relationship and


Institutional Bias? (cont’d)
Overlapping functions and institutional bias
• Appearance of bias: When those who
recommend/prosecute proceedings against a
person decide whether to take away the person’s
rights, privileges, or benefits
• A clear separation of roles avoids the appearance
of bias

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 10

Does Agency–Gov’t Relationship


Contribute to Institutional Bias? (cont’d)
Statutory Exceptions to Institutional Impartiality—A
statute may provide:
• that a tribunal must follow government policy

• that chair must report to minister of dept


appearing as a party before the tribunal
• that the minister has right to approve tribunal’s
rules of procedure

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 11

Does Agency–Gov’t Relationship


Contribute to Institutional Bias? (cont’d)
Statutory Exceptions (cont’d):
• that the chair must provide any information about
tribunal’s operations that the minister requests
• that the agency’s budget must be approved by
the minister
Any bias resulting from these requirements is
immune from attack in the courts

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 12

Raising an Allegation of Bias


• Allegations should be raised as early as possible

• Best way to raise the issue will depend on the


circumstances of each case
• Court will consider party to have waived the right
to argue an allegation of bias if they do not raise it
during the hearing
• Right is not waived if party raises an allegation
but member continues to hear the case
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 13

Tribunal Response to an
Allegation of Bias
If an adjudicator is concerned about appearance of
bias, he or she may:
• ask tribunal chair to assign a different adjudicator

• informally disclose facts to parties and volunteer


to stand aside
• decide it is in public’s interest to continue to hear
case if he/she believes there is no actual bias or
reasonable apprehension of bias
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 14

Tribunal Response to an
Allegation of Bias (cont’d)
• Simplest approach is usually for the adjudicator to
stand aside
• An adjudicator may present facts in his or her
own defence
• See cases: Dulmage v Ontario (Police
Complaints Commissioner),1994; Ocean Port
Hotel Ltd v BC (General Manager, Liquor Control
& Licensing), 2001
Copyright © 2020 Emond Montgomery Publications. All rights reserved.

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