When there is a concerning connection between counsel to a party in a proceeding and the adjudicator, who should step aside?
In Whearty v. Ontario (Human Rights Tribunal), 2025 ONSC 932 (CanLII), the complainant alleging discrimination retained the Ontario Human Rights Tribunal’s former Associate Chair as counsel. The OHRT had a conflict-of-interest rule preventing the former Associate Chair from appearing before it for 12 months. A year had in fact passed. The one-person Adjudicator requested submissions on whether an issue remained because the complaint had been made while the former Associate Chair was still on the OHRT and because the former Associate Chair had participated in the recruitment of the Adjudicator. The parties jointly submitted that, in the circumstances, the matter should be reassigned to another Adjudicator. Instead, in an interim decision, the Adjudicator disqualified the former Associate Chair from participating in the matter because there was an appearance of a conflict of interest. The complainant sought judicial review.
The Court reversed the decision, making the following points:
- The Court made an exception to the prematurity principle, considering the issue even though the proceedings were not yet completed.
- The Court noted that there were two competing principles: “The first is a party’s right to their counsel of choice and the need to ensure that they are not deprived of that right without good cause. The second is the need to preserve the integrity of the justice system.”
- The Court said: “The first consideration cannot be allowed to override the second….”
- The Court further said: “[The former Associate Chair’s] role, whatever it was, in the adjudicator’s appointment is not a conflict-of-interest concern; it is a concern that goes to the issue of bias. This is an important distinction because the remedies that flow from each concern are different. If the issue is conflict of interest, this is sufficient to displace a party’s right to counsel of their choice. If the concern is one going to reasonable apprehension of bias, the appropriate remedy is for the adjudicator to recuse themselves. In the Interim Decision the [Adjudicator] conflated the two concerns. This is a fundamental flaw in her reasoning process.”
- The Court also found that there was no conflict of interest in the fact that the complaint had been received by the HRTO during the former Associate Chair’s tenure. No decision had been made by the HRTO on the complaint at the time and the former Associate Chair had no personal involvement in it.
- The Court concluded: “It is unreasonable for an adjudicator to deprive a party of their counsel of choice to solve a bias concern, especially where, as here, there are rules in place that speak to how long a former tribunal member must wait before appearing as counsel in front of the same tribunal. If those rules have been complied with, the appropriate remedy in the face of a bias concern is for the adjudicator to recuse themself.”
- In terms of the ability of the HRTO to assign another adjudicator, the Court said: “Any recusal for bias has an impact on the ability of a tribunal to assign adjudicators. That is the administrative cost of ensuring access to impartial decision making, which is a fundamental component of a fair justice system.”
The distinction between a conflict of interest of counsel (e.g., because they are in possession of confidential information about a party or matter) and an appearance of bias on the part of the tribunal (e.g., because of a connection to counsel) is meaningful.
The decision also highlights the value of a rigorous conflict-of-interest policy on cooling off periods for adjudicators.