The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.
If all the considerable bend in the Canadian legal system was to be reduced to one word, that single word would be "reasonable." Legislators, law students, lawyers and judges all know they can safely qualify what they intend to communicate by inserting the word "reasonable" in their legislation, exam answers, written and oral submissions and judicial decisions.
The universality of "reasonableness" in the law reflects the uncountable nuances and gradations of life itself. Law and legal procedure can rarely set down strict rules and standards for human behaviour because they cannot predict what people will do and for what reasons. People and their individual lives are not a "one size fits all" proposition and--if there is to be fairness and justice--the law must also be elastic in its governance of human behaviour.
This article takes a tour through the reasonableness concept in legislation, common law and equity. The purpose is to convey an idea of the range of law and procedure that is mediated by the reasonableness standard, or even double standards of reasonableness as the Nicholson test prescribes above.
The Spectrum of Legal Reasonableness
Reasonableness inhabits the full span of Canadian law as the following categories demonstrate.
In real estate law, land use zoning and development criteria and approvals are subject to reasonableness. Both the common law and legislation in residential tenancies law provide that consent to an assignment and sub-let cannot be unreasonably withheld by the landlord. The reasons for refusal must be reasonable. The Alberta Residential Tenancies Act also creates objective standards of a "reasonable landlord" and a "reasonable tenant" (http://canlii.ca/t/52s97. The landlord may not enter the premises without consent unless there are reasonable grounds that an emergency exists or that the tenant abandoned the premises. It would be impossible for the legislature to generate a conclusive list of evidence that an emergency exists, so landlords must use their own judgment and be able to defend their decisions and actions as reasonable.
In intellectual property, the Copyright Act [http://canlii.ca/t/52sf0] defines "commercially available" work as "available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort". Other parameters in the Copyright Act are reasonable price, reasonable demands, reasonably applicable, reasonable extract, reasonable diligence, and reasonable requests.
Similarly, the Patent Act [http://canlii.ca/t/52sdt] refers to "reasonable commercial terms and conditions" and "reasonable returns", "reasonable compliance", "reasonable compensation", "reasonably related uses", "reasonable intervals", "reasonable advantage" and...