Labor & Employment Law

Test for Reasonable Apprehension of Bias

By Michael Fitzgibbon

The Ontario Human Rights Tribunal recently released a decision dealing with the complex (and uncomfortable) issue of reasonable apprehension of bias.  The applicant in this case alleged that the Adjudicator should excuse herself from hearing a case on the basis of a reasonable apprehension of bias.

The Tribunal cited Committee for Justice and Liberty v. National Energy Board as laying out the proper test:

?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 [the decision-maker], whether consciously or unconsciously, would not decide fairly.?

The test, therefore, is "whether a reasonable and well-informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude a reasonable apprehension of bias exists"    Furthermore, the onus of establishing the reasonable apprehension of bias rests on the party seeking the disqualification.  

One of the bases upon which the applicant advanced the bias allegation was that the Adjudicator and the mother of one of the respondents' lawyers were friends on Facebook.  This and the other issues advanced in support of the allegation did "not create a relationship with counsel which a reasonably informed person would conclude raises an apprehension of bias."

In the circumstances, the Adjudicator dismissed the suggestion that there was a reasonable apprehension of bias.  

Full post as published by Thoughts from a Management Lawyer on December 20, 2010 (boomark / email).