Appearance of Bias related to Adjudicative Conduct

An appearance of bias can arise as a result of the way that a proceeding is conducted. In Kivisto v. Law Society of Ontario, 2021 ONSC 6394 (CanLII), an unusual objection was made that the way an appeal hearing was held by the Divisional Court on a discipline appeal demonstrated an appearance of bias.

The objection was against one of the three Justices hearing the case and was based on several aspects in the proceeding, including that the Justice had refused to allow the appellant to file a longer than permitted factum, that the hearing was allegedly rescheduled deliberately to permit the Justice to hear the case, that excessive questions and comments were made by the Justice during the practitioner’s submissions, and that the decision itself revealed an appearance of bias.

The affected Justice released separate reasons explaining his response to each of the allegations. Some of this explanation described the routine processes followed by the Court.

The affected Justice nicely summarized the test for an appearance of bias quoting from a previous case as follows:

Bias as applied to a person or tribunal… is a state of mind disqualifying the person affected from adjudicating impartially in respect of the subject-matter under consideration. … As reflected in this statement, bias is not solely circumscribed by a subjective animus towards a participant in the proceedings, or some personal interest in the outcome. “Bias” refers to anything that may reasonably lead the adjudicator to decide the case on some basis other than the evidence before the tribunal and the law. “Apprehended bias” refers to anything that may lead the informed and reasonable observer to form a reasonable apprehension that the adjudicator might decide the case on some basis other than the evidence and the law.

The other two Justices concurred that there was no appearance of bias, stating:

As observed by Corbett J., administrative judges are required to make many directions and rulings on issues leading up to a hearing, including the permissible length of a factum. Corbett J.’s ruling denying Mr. Kivisto’s request to file a factum longer than 30 page in this case, including the language used to describe Mr. Kivisto’s proposed factum, would not lead a reasonable person to conclude that our colleague had made up his mind about the merits of Mr. Kivisto’s case. It is trite law that a ruling unfavourable to a litigant, even when expressed in strong language, on its own cannot form the basis for finding a reasonable apprehension of bias.

We also agree that there is no basis for Mr. Kivisto’s suggestion that there is a reasonable apprehension of bias in the manner in which this matter was scheduled. As one of the administrative judges of the Divisional Court, Justice Favreau is aware of how matters are scheduled in this Court. Generally, as in this case, hearing panels are scheduled months ahead to sit for a week at a time. Here, when the original hearing date was cancelled due to a conflict of interest by Justice Sachs, it was fortuitous that there was availability for a hearing the following week. There was no design to schedule this matter before Corbett J. and any suggestion by Mr. Kivisto to the contrary is unsupported and defies common sense.

Also, we agree that the manner in which the hearing was conducted does not give rise to a reasonable apprehension of bias. It is normal and expected for the president of a panel to control the hearing process and for all members of a panel to ask questions, including expressing their concerns about the positions advanced by the parties. In order for such questions or interventions to give rise to a reasonable apprehension of bias, courts look at the cumulative conduct and not at isolated questions or interventions. We have reviewed the transcript in this matter and are satisfied that the conduct of the hearing did not create a reasonable apprehension of bias. The questions and interventions were directed at testing the logic and foundation of Mr. Kivisto’s arguments and positions. This is a proper and appropriate role of the Court on an appeal, such as this one, where Mr. Kivisto challenged multiple findings made by the tribunal below.

Besides the arguments made by Mr. Kivisto addressed in Corbett J.’s reasons, in his factum Mr. Kivisto also relies on findings made by the Court of Appeal in an unrelated case about the manner in which our colleague had conducted a prior case. That decision and the Court of Appeal’s comments in that case have no bearing or relevance on the issue of whether there is a reasonable apprehension of bias in this case. The decision in question is over 5 years old. Mr. Kivisto was not a party to that case nor has he suggested that this matter is in any way related to that case. There is no basis for Mr. Kivisto’s attempt to suggest a reasonable apprehension of bias based on an unrelated decision of the Court of Appeal.

The approach taken in this case may be of assistance to tribunals as well, and particularly to tribunal members who face an objection that their conduct during a hearing has created an appearance of bias.

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