When advocacy leads to an apprehension of bias

A recent case on the limits of advocacy by a tribunal member after appointment

Winter is definitely upon us, at least in central and eastern Canada.

Last week my column in Slaw focused on the impact of poor decision-making on backlogs in our administrative justice system. In that column I gave a couple of examples of weak decisions that with a bit of forethought would likely have not ended up in the courts. This week brought two more examples. One case involved a simple failure to ask a claimant for their submissions on adverse information, while the other was a simple failure to engage with the final submissions of a claimant. Although I cannot say with 100 percent certainty that these cases would not have ended up being judicially reviewed on the merits, I can say with certainty that they would have ended up being heard only once by the court, as opposed to now likely being heard twice (first on procedure, and then on the merits).

The first case involved an application for a student visa and the alleged filing of a fake bank statement to support financial stability. The visa officer contacted the bank listed on the statement and was told that that branch did not exist. The visa application was rejected, without going back to the applicant with this information from the bank.

The second case involved a brief final level grievance decision that adopted the reasons of the previous level decision - without addressing submissions made by the applicant after that previous decision.

Both of these errors are breaches of fundamental (and basic) procedural fairness rules. An easy fix that would have saved significant court resources - not to mention the time of lawyers, administrators and judges.

More Clawbie winners

As I mentioned in last week’s newsletter, this newsletter won a 2025 Clawbie in the newsletter category. In the next few newsletters I will profile the other 2025 winners.

First up is Bow River Law’s Employment Law Blog, out of Calgary. As the name implies, the focus is on employment law - but it also includes other aspects of the employment relationship that touch on administrative law. A recent post about adding respondents to human rights complaints is of interest to administrative law practitioners.

When advocacy becomes apprehension of bias

A recent Ontario Divisional Court decision highlights the challenges of advocates for a cause deciding cases that engage the issues they advocate for. In this case involving a claim before the Licensing Appeals Tribunal (LAT) of Ontario, the court found a reasonable apprehension of bias of the tribunal adjudicator in an accident benefits case.

The accident victim had severe autism and other significant impairments when she was involved in a minor collision with a stopped vehicle while she was riding her bike. She alleged that the collision worsened her pre-existing condition, resulting in “catastrophic impairment” and sought benefits from the insurer. The adjudicator agreed with her, and granted benefits.

The adjudicator had a significant employment and volunteer history of advocating for people with autism. His younger brother has autism. The decision sets out in some detail his advocacy prior to his appointment to the LAT. However, it was his advocacy after his appointment that caught the attention of the court.

After his appointment he wrote an article for an online publication, about six months before the hearing of the case under judicial review. In the article, he advocated for greater resources for caregivers and emphasized his own experiences with his brother:

It’s not an exaggeration to say that without family members assisting with the care of their loved ones our health and social support systems would collapse.

Despite their vital role in the system, caregivers receive little to no support from our governments. Because of this, they often experience high levels of burnout, mental health challenges, and difficulties maintaining jobs.

…

So join our conversation! Check out the updates from the summit. And talk to your elected official about what they are doing to support caregivers. Together, we can make sure that caregivers get the supports we need so that we can continue doing what matters most: caring for those we love.

The issue of a reasonable apprehension of bias was raised only after the decision was issued. The LAT declined to reconsider the decision because the insurer did not raise the issue of bias at the earliest possible opportunity (discussed later). In the alternative, the LAT said that the material relied on by the insurer demonstrated only that the adjudicator could be considered as an autism subject matter expert.

Relying on the long-established test set out in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), the court concluded that “a reasonably informed person, viewing the matter realistically and practically would conclude that the adjudicator, whether consciously or unconsciously, would not decide the matter fairly” (paragraph 31). The court stated (at paragraph 36):

The concern in this case is that the Adjudicator’s advocacy for people with autism and their caregivers, continued after his appointment to the LAT. Membership in an association, without more, is not a basis for concluding that a perception of bias can reasonably be said to arise. However, the Adjudicator’s ongoing advocacy efforts following his LAT appointment to support caregivers for people with autism, previously described as his “driving force”, is sufficient to raise a reasonable apprehension of bias when he is deciding a case specifically determining whether the claimant, who suffers from severe autism, is entitled to attendant care benefits.

On the issue of the timeliness of raising the bias allegation, the court made some interesting findings (at paragraph 35).

I agree that a party cannot sit on information and wait to decide whether to proceed with an allegation of reasonable apprehension of bias. However, whether the material pre-dated the hearing is not determinative of the issue. A party is not expected to research an adjudicator in advance. There is a process in place for adjudicators and judges to self-disclose any potential conflicts or apprehension of bias. There was no evidence to suggest that the Appellant was aware of the information in advance. Further, the timing of such an allegation is not dispositive. I cannot conclude on the evidence before this Court that the Appellant delayed raising the issue for tactical reasons.

Given the high profile of the adjudicator in his pre-appointment role (he was a provincial member of parliament and actively supported initiatives around support for caregivers of those with autism) and his very public (online) advocacy for autism support, it surprises me that a sophisticated party such as an insurance company would not be aware of his background. However, there is also an obligation on an adjudicator to self-disclose matters that might raise a concern of an apprehension of bias.

Lessons for tribunals