Past Lives and Allegations of Bias

• Author: Ian Mackenzie
• Date: March 04, 2015

Adjudicators all come from somewhere and sometimes those past lives can intrude on the adjudication process. Parties who raise issues of conflict of interest based on a past role of an adjudicator usually frame that objection as an allegation of an apprehension of bias.

The test for reasonable apprehension of bias is well known. I have written about bias in the context of active adjudication previously. The legal test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly (Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369).

A conflict of interest, real or perceived, can arise when an adjudicator once represented a party that is now appearing before him or her. The rule on actual conflict of interest is generally quite straightforward. If an adjudicator worked directly on the dispute, it is inappropriate for her to adjudicate it.

The rule on perceived conflict of interest is more complicated. This can arise when an adjudicator represented a party prior to appointment although he or she had no direct involvement in the matter to be decided.

In applying the reasonable apprehension of bias test, courts apply a strong presumption of adjudicative impartiality and integrity: Terceira v. Labourers International Union of North America, 2014 ONCA 839 (CanLII). Courts have also recognized that many tribunals draw upon the expertise of former practitioners in the area of the tribunal’s jurisdiction. A presumption of disqualification because of prior professional relationships would defeat this practical reality. And, of course, any inquiry into an allegation of apprehension of bias is highly fact-specific.

The general practice at most tribunals appears to be to impose a “cooling off” period after appointment so that no cases with the former client are assigned to the adjudicator for a period of time. Anecdotally, most cooling off periods are a maximum of twelve months and sometimes shorter.

The issue of a perceived conflict is generally raised at the beginning of a hearing by either the adjudicator or one of the parties. Failure to raise an allegation of bias at the first opportunity will be regarded as a waiver of bias by the party that fails to raise it.

When an allegation of past involvement is raised, either by the adjudicator or a party, the adjudicator will explain his or her role with the party in some detail and will then invite submissions from the parties. The adjudicator will then decide whether or not to remove (recuse) himself from the case. That decision will generally be accompanied by brief oral reasons. If the adjudicator does not recuse herself, the reasons for not doing so will be included in the final decision on the dispute.

Situations can arise when knowledge of a...