Never take bias allegations personally - a cautionary tale
Being personally affronted by a bias allegation leads to a successful JR; and just because reasons don't persuade you, doesn't mean they are inadequate
We’ve been experiencing a bit of a cold snap - which has meant I have been spending time indoors reading.
I finished reading “Turning to Stone: Discovering the Subtle Wisdom of Rocks”, by geologist Marcia Bjornerud. I learned about T.C. Chamberlin’s “method of multiple working hypotheses”, which Bjornerud describes as the habit of “holding in the mind more than one scenario… and, without playing favorites, identifying tests for each interpretation until one is shown to be the most likely”. Chamberlin, writing in 1897, described one of the merits of this approach:
A special merit of the method is, that by its very nature it promotes thoroughness. The value of a working hypothesis lies largely in its suggestiveness of lines of inquiry that might otherwise be overlooked. Facts that are trivial in themselves are brought into significance by their bearings upon the hypothesis, and by their casual indications. As an illustration, it is necessary to cite the phenomenal influence which the Darwinian hypothesis has exerted upon the investigations of the past two decades. But a single working hypothesis may lead investigations along a given line to the neglect of others equally important; and thus, while inquiry is promoted in certain quarters, the investigation lacks completeness. But if all rational hypotheses relating to a subject are worked co-equally, thoroughness is the presumptive result, in the very nature of the case.
As Bjornerud concludes, this is not a bad method for areas other than geology - including investigations of all sorts.
The importance of an objective assessment of bias
In a complaint before the Canadian Human Rights Tribunal (CHRT), the complainant, Dr. Attaran, raised concerns that the panel member showed unconscious bias towards him. The panel member dismissed the complaint and included in his decision, a “Bias Allegation Addendum” that summarized the panel member’s views. In the words of the judicial review decision (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2025 FC 18): “centrally and materially, and without notice to the parties or opportunity to respond, the panel effectively dismissed Dr. Attaran’s allegation of “unconscious bias” because the concept of unconscious bias is “unhelpful” and in effect “unsupportable.”
During the hearing, Dr. Attaran accused the panel member of giving preferential treatment to a witness because the witness shared the panel member’s “gender and racial characteristics” (the panel member was a white male). Dr. Attaran did not make a motion of recusal.
The panel member told Dr. Attaran that he did not want witnesses bullied, threatened or intimidated. He referred to Dr. Attaran’s “mannerisms” and the expressions he makes that were intimidating to people. In the addendum, the panel member stated:
[403] In hindsight, these were not the best words I could have chosen. I was trying to avoid inflammatory language, but I thought it was clear to all parties, and members of the gallery about what I meant when I referred to “mannerisms” and things that Dr. Attaran did during the course of the hearing. I used the word “mannerisms”. but the more accurate word would have been “theatrics” that Dr. Attaran performed as others spoke, such as rolling his head back, mock-laughing and throwing his face into his hands.
In the addendum, the panel member made some comments about the allegations of unconscious bias and attempted to defend himself:
[413] Before describing how the matter was resolved, I feel the need to speak on the record from a personal perspective. Allegations of racial bias are very toxic in today’s world. The mere allegation of such impropriety carries with it significant stigmatization and it is often very difficult for the accused to achieve redemption because the allegation, though difficult to prove, is also quite difficult to disprove. My personal reputation was impugned by Dr. Attaran’s allegation, so I wish to reply to defend myself. Firstly, I do not observe Dr. Attaran to speak with an accent or differently from anyone else in North America. He was born and raised in California and educated and employed at some of the most prestigious universities in the English-speaking world. I have never met Dr. Attaran in person. I have only seen him on a video screen. He does not even appear to me to be a visible minority. Perhaps it might be different in person. I also highly doubt that I have a subconscious bias against people with a Persian ethnic background. Some of my closest friends are from Iran, including my college roommate who has remained a lifelong friend and participated as a groomsman at my wedding. In the absence of a motion for my recusal, I did not view the allegation as being serious. I perceived it more as an attempt to intimidate me, which it did not.
[414] In the moment of contentious litigation, it is possible for tempers to flare and judgement to be impaired. In the forum of a human rights tribunal hearing, allegations of discrimination are always top of mind, and perhaps this might influence perceptions.
[415] The Tribunal is sensitive to the fact that Dr. Attaran was self represented and he was concerned about the need to make timely objections to preserve his rights when he believed they had not been respected. However, there is a distinction to be drawn between, on the one hand, objecting to a course of action adopted—or even a ruling made—by the Tribunal, and on the other hand, impugning the Tribunal’s impartiality and integrity. The latter should not be asserted outside of a recusal request.
[416] It is well established that in certain contexts, a party must bring a timely objection on an allegation of bias to prevent an assertion of waiver. However, waiver can have no application in cases where the bias allegation is tied to what is said or done during the decision-making process (Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al., 2006 NBCA 61 (CanLII), at para 14).
[417] Bias is a serious matter. In Arthur v Canada (Attorney General), 2001 FCA 223 at para 8, the Federal Court of Appeal explained that an allegation of bias against a tribunal is a serious allegation that cannot be made lightly. When deployed during the hearing as a simple advocacy tool, allegations of bias undermine the respectful atmosphere that is required for the quasi-judicial process to operate. They inflame the proceedings and distract from the matters to be decided. Because they do not seek a recusal decision from the member, such advocacy allegations erode confidence in the administration of justice since they offer no avenue for either substantiation or dismissal.
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[419] The inherent problem with any allegation of unconscious bias is that it is next-to-impossible to prove what is going on inside the mind of another person, especially when part of the argument is that the person is not even aware themself of it. Unconscious bias finds its roots in the implicit-bias test developed by a group of American social psychology researchers around 30 years ago. Despite the wide use of the test for training in the work place, it has been controversial within the scientific community because of its inability to meet the accepted standard of consistent test results, suggesting to many that the implications, insofar as test results may relate to a propensity for discrimination, are not supportable. A bald allegation of unconscious bias made before a Tribunal member should be received in a careful and measured way. While the complainant may argue that the respondent is discriminatory due to the unconscious bias that is unseen, the respondent is equally open to argue that the complainant is delusional and seeing discrimination where it doesn’t exist. Neither of these arguments are helpful to the adjudicator.
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[421] After some reflection, I issued a letter to the parties concerning decorum on May 20, 2021, which outlined my expectations for hearing decorum and the good order required to complete the inquiry. The parties referred to these directions as the “Decorum Directives” for the remainder of the hearing. There were several allegations made that parties were breaching the Decorum Directives as we concluded the hearing in September. However, I did not view any breaches as being sufficiently prejudicial as to warrant a further suspension of the proceedings. The inquiry had come so far and was getting close to the end. It needed to reach its conclusion.
The court found that the panel member rejected Dr. Attaran’s core allegation of “unconscious bias,” not only without supporting evidence, but without giving the parties an opportunity to know the case to meet, or a fair and full chance to respond. The parties had no notice unconscious bias would be decided by the panel in completing his reasons, nor that “unconscious bias” (acknowledged by the Supreme Court of Canada as a form of bias that might be apprehended) was still under active consideration and might therefore be rejected as a ground for their bias allegation. The court found this to be a breach of procedural fairness.
The court also concluded that the panel member “lost the necessary objectivity when he injected himself into his analysis of the allegation of unconscious bias”. The court highlighted the portions of the addendum where the panel member was assessing the matter from his subjective viewpoint, not objectively as required by the test for reasonable apprehension of bias. The court concluded:
…In my respectful opinion, viewed per the objective test in National Energy Board, Dr. Attaran’s bias allegation constituted a serious attack on the impartiality and competence of the member, and upon the integrity of the Tribunal and administration of justice. This challenge required resolution by the panel under the jurisprudence, regardless of the panel’s personal views of its impact on him.
The first part of this judicial review decision is straightforward enough from a procedural fairness perspective — if you are planning on making conclusions on an issue, make sure that the parties have had an opportunity to make submissions.
The second part of the decision highlights the challenges for adjudicators in dealing with bias allegations. Clearly, this panel member felt that his integrity had been attacked by Dr. Attaran. In other words, he took this all very personally. The test for a reasonable apprehension of bias is objective (the “reasonable person”) — however, being accused of racism (even “unconscious” racism) can be felt by an adjudicator at the very personal level. In this case, the panel member referred to his “personal reputation” being impugned. What the test for reasonable apprehension of bias requires, however, is that personal feelings (which are by definition subjective) be set aside.
Cases of note
Ineffective assistance of counsel as breach of procedural fairness
In Veerasingam v. Licence Appeal Tribunal, 2025 ONSC 290, the appellant challenged a decision of the License Appeal Tribunal (LAT) on the basis of, among other grounds, ineffective assistance of counsel. The court dismissed the judicial review application. The court relied on the test to establish a claim of ineffective assistance by counsel, as set out in Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (Div. Ct.), at para. 27 :
1. The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component).
2. Incompetent representation must be established (the performance component).
3. The incompetent representation caused a miscarriage of justice (the prejudice component).
The appellant relied on letters exchanged between him and his paralegal representative. The court noted that there was disagreement in the letters about the representation. In any event, the court concluded that these letters were not properly before it, as the appellant had not brought a motion to introduce fresh evidence at judicial review. The transcripts of the hearing were properly before the court, and the court concluded:
The appellant also relies on transcript excerpts setting out submissions made by Mr. Rahman about the extent of his preparation and excerpts from the evidence. Those transcripts are before the Court. A number of the statements relied upon are also predicated on whether the instructions were to put a priority on attempting a settlement, rather than preparing for a disputed hearing, discussed above. Others are the starting point for more general criticisms by the appellant about the amount of preparation and choices made during the hearing. The transcript excerpts fall short of establishing incompetence. The first precondition of the above test has not been met.
Distinguishing between inadequate reasons and unpersuasive reasons
In Pereira v British Columbia (Workers’ Compensation Board), 2025 BCSC 65, the appellant filed a judicial review application against a workplace safety complaint. The court noted that the complaint raised a concern over the adequacy of the reasons provided in the workplace investigation relied on by WorkSafeBC. The court referred to the comments in Sacky v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCSC 1541:
[13] Turning first to the adequacy of WCAT’s reasons, it is important to distinguish between inadequate reasons and unpersuasive reasons. The fact that Mr. Sacky is not persuaded by WCAT’s reasons does not make them inadequate. Reasons are only inadequate (and therefore procedurally unfair) on administrative law grounds when, read in context, they fail to reveal why the tribunal decided as it did. …
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[19] What Ms. Pereira really wants is a detailed breakdown of how every factual issue in dispute was dealt with and resolved by the investigator and a decisive determination concluding that she was subjected to mobbing. Such an analysis is not required in this context. The investigation required is not akin to a trial, witnesses are not subject to cross-examination; the investigator is not required to provide a precise assessment of each piece of evidence obtained in the investigation. One must take a functional approach in assessing the reasons, specifically considering that this was an investigation:
a) In a workplace environment involving conflict between workers;
b) Nearly three years after the fact;
c) In which some witnesses were no longer employed at the company; and
d) In which some witnesses did not wish to participate.
[20] It is clear that the investigator grappled with the issues. In my view, the reasons are adequate from a procedural perspective. As noted in Sacky, this does not involve assessing the merits of the substantive decision that was made. This review is focused on procedural as opposed to substantive issues.
Links of interest
Cuts to government jobs may increase backlogs in refugee and immigration claims
Immigration, Refugees and Citizenship Canada (IRCC) has announced plans to cut about 3,300 jobs, or about a quarter of its workforce, over the next three years.
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Tamara Mosher-Kuczer, founder and senior lawyer at Lighthouse Immigration Law, said she was horrified when she found out about the looming cuts.
She said some people wait years to get their immigration documents processed and these cutbacks will only further clog the overburdened system.
"We're going to see increasing processing times. They're already really bad … they're already ridiculous and they're going to get worse."
Canada bracing for possible influx of asylum claimants after Trump immigration orders
[Gabriela] Ramo is also concerned that announced cuts by the federal Immigration Ministry could increase the time it takes to get work permits.
Trump's plan to deport millions of people means that some, particularly those who qualify for an exception for the Safe Third Country agreement because they have family in Canada, may seek other options — like heading to Canada, she said. Even if only a percentage came to Canada and made refugee claims, it could swamp the country's already backlogged refugee system, she said.
AI’s impact on law: why the transformation narrative is overstated
AI can save time combing through piles of documents or cases to find the ones that matter. But most lawyers spend more of their time pouring over or crafting key documents — contracts, pleadings, opinions — pondering strategy, implications, or advice.
And while AI might make finding law easier, you can only find things if you know what you’re looking for. Without a good grasp of law, you won’t know how to prompt AI to look in the right places. AI won’t replace our intuition. It can’t come up with creative ways to frame a legal claim.
AI will help us do many things. But the vast majority of our time on most files will still be spent on tasks we need to do ourselves: reassuring the client, persuading a judge or jury by reading the room, or reaching a settlement by using humility and common sense.
Are we ready for AI translators in the legal industry?
In recent years, there have been huge strides in the quality and quantity of machine translation products available. However, prior to the advent of LLMs, machine translation product trials suggested that – as in the early days of dictation software – there was still some way to go before these tools become sufficiently trained to deal with the intonation of different voices, muffled speech, informal linguistic styles and nuances of meaning to be able to convey speech accurately.
There are also questions about the data used to train these tools. Certain languages will be more dominant in training data sets than some minority languages or dialects, meaning reliability will vary depending on the translation in question. For example, English language content for early GPT models was reported to account for as much as 90% of the training data set.