Credibility assessments under fire and waiving bias allegations
A couple of recent Federal Court decisions overturning credibility findings and some recent guidance on waiver of allegations of apprehension of bias
“If your men get their coffee early in the morning, you can hold” [your position]: Civil War Union General Benjamin Butler
I trust everyone is “holding their position” on this Friday morning. It’s been a busy week for me with radio shows and going to the Ottawa Jazz Festival, but I have a few recent cases to share on credibility assessments and recusal requests, as well as some links. But first, an image of great concentration - a picture of Kendrick Scott at the National Arts Centre on Tuesday.
And also a big shout out to Supreme Advocacy for featuring my newsletter in yesterday’s Supreme Advocacy Letter #41. It resulted in a big bump in subscribers - and I welcome all my new subscribers!
Credibility assessments under attack
Two recent Federal Court decisions highlight the necessity of being careful in making credibility assessments. In Zarate Lopez v. Canada (Citizenship and Immigration), 2024 FC 879, Justice Azmudeh noted that there was “generally” a great deal of deference given to credibility findings of expert tribunals (see Tsigehana v Canada (Citizenship and Immigration), 2020 FC 426, at paras 33-35). She then provided the following guidance to those assessing credibility:
[7] However, credibility assessment is a fact-finding exercise. The decision-maker can accept or reject the facts on a balance of probabilities. Facts that the decision-maker accepts or rejects are then linked to their rationally connected legal consequence. If the claimant’s testimony cannot be relied upon, and there is no independent evidence to corroborate the facts relevant to the claim, the decision-maker is left with insufficient credible evidence to find that the fact is established to support the claim. Therefore, the starting point is to understand and consistently use well-defined concepts such as credibility, probative value, relevance, materiality, weight and sufficiency. My colleague Justice Grammond has offered guidance on this in Magonza v Canada (Citizenship and Immigration), 2019 FC 14 that I will not repeat here. Concisely, by understanding and using concepts related to accepting or rejecting evidence consistently, administrative decision-makers increase the likelihood of rendering reasonable decisions.
[8] When the decision-maker accepts certain material facts while they reject some others, it is important for the analysis to engage with both to explain how the evidence was weighed to support the ultimate conclusion.
She also noted that although the formal rules of evidence do not apply in the tribunal context, this did not mean that “all facts, irrespective of their relevance, probative value or materiality, are created equal”:
…relevance and materiality remain key to the weight of the evidence. Therefore, generally speaking, an exercise in making credibility assessment of individual facts, irrespective of how they matter in the context of the refugee case, in and of itself may not support an overall reasonable decision. This is because a decision where the member refers to all facts as equal, irrespective of their relevance and materiality in the context of the refugee claim, could lose the logical chain of reasoning contemplated by Vavilov.
The paragraph of Vavilov that she relies on is paragraph 85:
[85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.
Justice Azmudeh, clearly a jigsaw puzzle aficionado, paraphrased this statement from Vavilov in this way:
[10] Putting it differently, likening the situation to puzzle pieces, individual credibility findings represent fragments of evidence. Each piece might be accurate on its own, but without assembling and examining the complete puzzle, the overall picture – the comprehensive credibility assessment – may fail to reflect the true nature of the case. It underscores the necessity of a holistic approach to ensure the integrity and accuracy of the decision-making process. Without it, the chain of reasoning is lost and the reasons are no longer intelligible…
After reviewing the credibility findings in some detail, Justice Azmudeh concluded that the decision-maker’s approach “appears to have been overly fixated on scrutinizing the individual piece of evidence without stepping back to consider the broader context or the overarching narrative”. She found the decision to be unreasonable.
In Kayali v. Canada (Citizenship and Immigration), 2024 FC 909, Justice Grammond conducted a similarly detailed analysis of the evidence to conclude that a visa officer made credibility findings that were based on a distortion of the applicants’ evidence. He relied on a different paragraph from Vavilov (para. 126), when he stated, “I can only intervene with respect to factual determinations if the officer ‘has fundamentally misapprehended or failed to account for the evidence before it’.”
Waiver of bias claims
The timing of a motion to recuse an adjudicator for a reasonable apprehension of bias is critical - if a party does not raise it at the earliest possible opportunity they may be found to have waived their claim. A recent B.C. Superior Court decision talks about the timing of recusal requests and waiver, and a recent Law Society of Ontario Appeal Tribunal decision somewhat muddies the waters.
In District Director, Metro Vancouver v Environmental Appeal Board, 2024 BCSC 1064, the court adopted the reasoning of the New Brunswick Court of Appeal in Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al., 2006 NBCA 61 on the waiver defence: waiver is inferred “where the party alleging bias has full knowledge and failed to make a timely objection” (para. 27). The New Brunswick Court of Appeal continued:
[28] It is not difficult to appreciate the policy rationale underscoring the acceptance of the waiver defence. As stated at the outset, it is not just for a party to hold in reserve an objection as to the impartially of a decision-maker and, in the event the case is lost, to allege bias as the basis for setting aside the unfavourable ruling. For this reason, the law holds that the right to set aside a decision on the basis of a reasonable apprehension of bias is waived if the issue is not raised at the first practical opportunity. If a timely objection is raised, the decision-maker has the opportunity to reflect on whether recusal is warranted in the circumstances. However, waiver will be inferred only if the party alleging bias was aware of the pertinent facts that would support a bias allegation. … Once knowledge is established then it is necessary to decide whether a timely objection was made. If not, the reviewing tribunal is entitled to infer that the bias allegation was raised for tactical purposes. This leads one to ask whether the inference is a rebuttable one. Despite prior knowledge and a failure to raise a timely objection, are there circumstances in which it would be unwise or improper to draw the inference that bias had been raised for tactical purposes? That too is a question I abandon for another day.
In the B.C. case, a reasonable apprehension of bias allegation arose during the hearing and not from any prior knowledge. The recusal request was dismissed by the Environmental Appeal Board (EAB). The District Director alleged that it was the cumulative conduct of the Chair and the Member during the hearing that met the evidentiary threshold of establishing a reasonable apprehension of bias and once that threshold was met, he acted promptly in bringing the recusal application. The court agreed with this statement in Rothesay (at para. 14) on waiver:
The fourth category is tied to the inappropriate behavior of the decision-maker, whether it comes in the form of words or actions. Cases within this category are sometimes described as “actual bias” cases. Parenthetically, note that the plea of waiver can have no application in cases where the bias allegation is tied to what is said or done during the decision-making process.
The court accepted that once the District Director was satisfied that he had a valid basis to assert an allegation of bias, he made the recusal request. It found that the doctrine of waiver was not applicable on the facts. However, the court went on to consider whether the District Director had waited too long after the date on which he said he established the basis for the allegation. He made the recusal request approximately four months later. It is important to note that this was all happening in the midst of the pandemic. The court took judicial notice that “the pandemic upended the natural flow of most proceedings“. The court continued:
[229] In addition, the decision to seek a recusal of Panel members in the middle of a hearing is not a decision to be taken lightly. It is a decision which requires careful assessment of the risks in doing so, knowing that if the panel does not accept the applicant’s position, the applicant will have to continue the hearing before that same panel he has just asserted is biased. …
…
[232] The mischief which the cases on waiver address, is a party holding back its allegation of bias until the party receives an unfavourable outcome. This is described as a strategic use of the bias allegation, essentially using bias as a means to take a second run at the case after a loss. That is clearly not what happened before the EAB in this case. The District Director attempted to bring the application before the close of evidence, to salvage the hearing if at all possible. The submission of the District Director was that the two Panel members should recuse themselves, allowing the third Panel member to complete the evidence and render the decision. The District Director did not wait until the decision of the Panel in the appeal had been rendered. He attempted to raise the allegation in a timely way once the basis for his allegation bias had crystalized.
The court found that the doctrine of waiver had no application in the circumstances of this case.
The facts in Law Society of Ontario v. Diamond, 2024 ONLSTA 8 were slightly different, in that the knowledge of the possible apprehension of bias related to social media posts of the panel chair that predated the hearing. However, Mr. Diamond did not immediately request the recusal of the chair at the commencement of the hearing. The hearing was proceeding on the basis of joint submissions by the Law Society and Mr. Diamond on the appropriate outcome of the disciplinary process. When the panel questioned whether that joint submission was in the public interest and sought further submissions, Mr. Diamond’s lawyer asked that Mr. Diamond be permitted to withdraw his admissions. He stated that if he was not permitted to do so, a recusal motion would be brought.
The Law Society Tribunal has held in the past that for a waiver of procedural rights to be valid, the waiver “must be voluntary, unequivocal and informed in the sense that the party waiving those rights understands the consequences of the waiver” Law Society of Ontario v. Goldfinger, 2019 ONLSTA 10. In this case, the hearing panel relied on an implied waiver based on the timing of the recusal motion. The appeal panel found that the lawyer’s conduct was not unequivocal in waiving his rights.
The appeal panel noted the strong statement by the B.C. Court of Appeal in Eckervogt v. British Columbia, 2004 BCCA 398 about not using a bias allegation as a litigation tactic:
I do not think it is proper for a party to hold in reserve a ground of disqualification for use only if the outcome turns out badly. Bias allegations have serious implications for the reputation of the tribunal and in fairness they should be made directly and promptly, not held back as a tactic in the litigation. Such a tactic should, I think, carry the risk of a finding of waiver. Furthermore, the genuineness of the apprehension becomes suspect when it is not acted on right away.
The appeal panel noted that the lawyer first raised the issue of bias two days after becoming aware of who was on the hearing panel. He raised the issue immediately after he received notice that the hearing panel was not satisfied with the joint submission on the penalty outcome. His counsel then raised the concern of bias directly with the hearing panel the next day -- just the second day of the hearing. The appeal panel concluded that this timing was reasonable:
…The obligation to raise the issue of bias at the earliest practicable opportunity does not mean that parties must raise the issue hastily before they have had a meaningful opportunity to consider the foundation for a recusal motion.
It is arguable that the recusal motion in this case was a litigation tactic - at least from the way the summary of the facts reads in the decision. If the hearing panel had permitted the lawyer to withdraw his admissions, the recusal motion would not have been made. That implies that the reasonable apprehension of bias was conditional — which is contrary to the jurisprudence on bias. Either there is a reasonable apprehension of bias, or there is not — it cannot depend on whether a party gets the outcome they want (in this case, the withdrawal of admissions).
Stay tuned for more on this decision - I have a Slaw column forthcoming on the other issue raised in this decision about social media posts and bias.
Links of interest
Why winning bronze feels better than winning silver
Tips for Assisting Self-Represented Litigants
Canadian Open Access Legal Citation Guide