First Post: Apprehension of Bias and assorted updates

Some recent cases of interest, upcoming training, and links

Jun 14, 2024

In these weekly posts I will highlight a case or two that has caught my attention, as well as linking to articles and books that I’m reading. On occasion, I’ll update subscribers on what I’ve been up to.

Cases of note

Apprehension of bias

Landa v. The Dominion of Canada General Insurance Company, 2024 ONSC 2871:

In this case, Ms. Landa alleged reasonable apprehension of bias on the basis that the License Appeal Tribunal (LAT) member who conducted case conferences was previously affiliated with the law firm representing the respondent and that the initial decisions were reconsidered by the same member who made the original decisions. On the first ground, the court stated:

[98] According to LAT’s Code of Conduct, during the first two years of their appointment, members must not determine any matter involving a firm where they worked immediately prior to that appointment. The LAT member who conducted the case conferences in question was appointed to the LAT on January 24, 2018. The case conferences were conducted on April 6, 2020 and May 4, 2020 – more than two years after her appointment. Furthermore, she did not determine any substantive issues at the case conferences. In view of this, Ms. Landa has failed to meet her burden of establishing a reasonable apprehension of bias against the member who presided over the case conferences.

Tribunals have different “cooling off” periods for tribunal members for matters involving former employers or clients - ranging from six-months to 2 years. In this case, the court has accepted the Tribunal’s rule of 2 years. This is a lengthy cooling-off period and might be unworkable for a smaller tribunal. What is left open in these reasons is whether dealing with substantive issues would have made a difference in the conclusion. One hopes that this part of the reasons was just to buttress the conclusion on the length of time, and not a separate consideration. Some specialized tribunals would become paralyzed if the determining factor was dealing with substantive issues related to a former employer or client.

The court also confirmed the longstanding conclusion that a reconsideration by the same tribunal member who made the original decision does not lead to a reasonable apprehension of bias. Also see, Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Div. Ct.) at paras. 18-22).

Conferences and panels

This month I have moderated a panel and been a panelist at two programs. On June 6, I moderated a panel at the National Administrative Law Roundtable put on by the Canadian Institute for the Administration of Justice (CIAJ). It was an interesting discussion about the government resourcing of tribunals (appointments and funding) and independence.

On June 13, I participated on a panel for the Toronto Metropolitan University/Lancaster House labour relations certificate program on preparing for a grievance hearing and what to expect.

What I’m reading

I’m always partial to memoirs or biographies of decision-makers and, so far, this memoir of Justice David Tatel is insightful. I’ll report back when I’ve finished it.

I’ve also started reading the kind of arcane book only of interest to, perhaps, legal editors and citation geeks - The Supreme Court Footnote, by Peter Charles Hoffer.

The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time.

Interestingly, there is not a significant use of footnotes in Canadian jurisprudence.