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Friends of the Cawthra Bush & Greater Mississauga Area
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Opening comments: More at the end. [ section above ] - 8 - The legal rulings at the Court & Supreme court level The source of legal ruling quotes is an article - Bias a Canadian Perspective (July 2001) by Trevor H. Bishop, at the law firm of Brisset Bishop in Montreal, which can be found at www.amac.ca/Bishop.htm. The term "judge" is used to cover all those who hold legal hearings, including the OMB. It is clear that rulings quoted from the Supreme Court down regarding Conflict of Interest and Bias are to be applied to all persons acting in judicial and quasi-judicial functions. This includes the OMB. CONFLICT OF INTEREST - what does it mean in broad terms, to most reasonable people? To paraphrase the wording in the Information and Privacy Commission Order M-1091, a decision-maker, or judge, is in a Conflict of Interest situation when it is reasonable to assume that he or she is making decisions based on their personal interest rather than in the public's interest. The question thus being, did the decision-maker or judge have any kind of personal or special interest in the issue being decided or in the effect the decision had? For example, by providing a benefit for another by failing to be impartial, the judge could in some way be benefiting. Conflict of Interest can be taken as the trading of favors or some form of patronage, not necessarily direct financial gain, as the OMB rules suggest. A breach of this fundamental rule of fairness should automatically cause a statutory delegate of the jurisdiction to judge and decide the matters at hand. If a delegation does not take place, the result of this loss of jurisdiction is to render his or her decisions void. This is regardless of whether or not a Conflict of Interest was declared at the time. It is common thread throughout Canadian common law, administrative law, natural justice and legal process/systems in general that there be an automatic disqualification for any judges who have any Conflict of Interest(s) with one of the parties or those involved in general, or is otherwise so closely connected with a party that they can reasonably be said to be a judge in their own cause. "The fundamental principle is that a man may not be a judge in his own cause." It is a logical and reasonable extension of this principal that a person should not judge their own work. BIAS - generally means a "pre-disposition towards", "prejudice", absence of impartiality, and "unfavourably inclined", in other words to unfairly favour one side at the expense of the other. Impartiality & independence are necessary elements for creating the environment that the principles of natural justice and administrative law need to operate in. Generally, consideration of Bias by the courts focuses upon whether or not there is a reasonable apprehension of Bias in a particular proceeding. The courts have concluded that a "reasonable apprehension of bias" or "justifiable doubts" are sufficient to intervene and it is not necessary to establish actual Bias on the part of the decision-maker. Both Conflict of Interest and Bias cause a loss of independence and impartiality. The concept of independence and impartiality is entrenched in S. 11(d) of the Canadian Charter of Rights and Freedoms (Schedule B of the Constitution Act, 1982, Appendices to Revised States of Canada, 1985). This section states in part that: "11. Any person charged with an offence has the right: (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673, at page 689 of the Valente case, Mr. Justice LeDain states: "Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without this confidence, the system cannot command the respect and acceptance that are essential to its effective operation." The reasonable apprehension of Bias calls into question not simply the personal integrity of the judge but the integrity of the entire administration of justice. The public must see those who would judge as capable of administering justice without fear or favour. When a society's or a community's judges are seen to be making judgements in a position of Conflict of Interest or are believed to be making Biased decisions, this can be viewed as the beginning of uncontrollable patronage and corruption of the government by knowledgeable and reasonable persons, the kind of corruption that endangers our Democracy's very existence. ....9 - 9 - Significant legal rulings regarding Conflict of Interest and Bias The first Supreme Court of Canada case being referred to relating to impartiality or Bias is Szilard v. Szasz [1955] S.C.R. 3. at pages 6-7: "It is the probability or the reasoned suspicion of biased appraisal and judgment, unintended though it may be, that defeats the adjudication at its threshold." The Supreme Court of Canada dealt with the subject again in 1978 in the cases of The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369. This case involved an administrative tribunal where one of the members of the board had been involved previously as a member of a group which had studied matters related to the application that came before the board. This case bares a striking similarity to this OMB matter. Chief Justice Laskin for the majority held at page 385 that "the only issue here is whether the principle of reasonable apprehension or reasonable likelihood of Bias" applied to the board. The majority held that the member of the board must be disqualified based on the test of reasonable apprehension of Bias. The classic test and current standard for a reasonable apprehension of Bias was that stated by Justice De Grandpré in the above case at p. 394: "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 ... what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude." The apprehension of Bias itself must be reasonable in the circumstances of the case or in this case the political realities in the City of Mississauga. Another reason why the standard of any "apparent" or possible Bias or Conflict of Interest is enough to disqualify a judge is that there could be a chance of unconscious Bias and even that is to be avoided. Cited in a Supreme Court of Canada case, Benjamin Cardozo, from his work "The Nature of the Judicial Process" (1921): "Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether he [or she] be litigant or judge." In Canadian law, the difference between "apparent" and "unconscious" Bias is not clearly defined. However, it is apparent that a "real danger" is equivalent to "actual" Bias, even if unconscious. In the Newfoundland Supreme Court, in Sanwa Bank California v. Quebec North Shore & Labrador Railway Co. Ltd. (1988) 48 D.L.R. (4th) 360. The judge (page 367) held that the principle on which he must make a decision was whether "reasonable apprehension of bias arises where there exists a reasonable probability that a panel member may not act in an entirely impartial manner". No evidence of actual Bias need be established. In the judgement of Lord Denning in Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 Q.B. 577 who had held at page 599: "In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand:" Suffice it is that enough reasonable people might suspect he was Bias or in some kind of Conflict of Interest. The reasons are clear enough. First and fore most, justice must be rooted in confidence, and confidence is destroyed when right-minded people believe that the judge was biased and an unfair hearing had taken place. Under Canadian law, there must only be a "reasonable apprehension of bias" and the apprehension must be "substantial". In the Northmount OMB Hearing, the grounds for apprehension of Bias are "substantial". The OMB's Code of Conduct is to an even higher standard: "Members should not only be unbiased, but also appear to be so." Home page - Main Table of Contents - Back up a Page - Back to Top [ COMMENTS BY DON B. - ] |
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