Context is Important in Assessing whether there is an Appearance of Bias

At day 39 of what would turn into a 60 day registration hearing, the applicant raised an appearance of bias concern. The concern was that the applicant for a paralegal licence was giving advice to an individual in a human rights case where the chair of the hearing panel represented the respondent. The individual was also going to become a character witness for the applicant. The chair of the panel immediately transferred the case (her involvement had only been brief at this point) to another lawyer in the firm and separated herself entirely from the human rights case.

In Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545 the Divisional Court held that there was no appearance of bias. The Court found that the appeal tribunal’s conclusion on the bias issue was reasonable, when the appeal tribunal said: “A reasonably informed person would not form the view that Ms. Blight’s brief representation of the respondent to G’s human rights application would impair her ability to fairly adjudicate the appellant’s licensing proceeding.” Undoubtedly, the raising of this concern so late in the protracted hearing process was a significant consideration.

The Court also said that the appointment process for the hearing panel in registration matters did not require a degree of independence of an appointment of a Judge to the courts. Allowing the chair of the tribunal to freely appoint panel members demonstrated an adequate degree of independence.

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