In this long read, I thought it would be interesting to tackle an area I am quite interested in – the legal concept of ‘reasonable apprehension of bias’ and how it applies to Federal Court decisions where counsel are raising this argument. I focus this piece on Federal Court decisions issued in 2018 (one is a FCA decision).
My early thesis is that as administrative burdens on the Government increase along with a growing demand on immigration to Canada (which subsequently will increase the requirement to removal individuals who have ‘fallen out of favour’ – either by status or admissibility), more decisions may be perceived by applicants of demonstrating bias or being grounded in biased policies.
Simultaneously, we may see a subsequent increase in counsel going after the procedural fairness of a decision, on the basis of alleged bias.
What is the current state of the law? How does this all play out?
What is a Reasonable Apprehension of Bias
The test for Reasonable Apprehension of Bias was recently restated by Justice Gagné in Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC 995 (CanLII):
[34] The test to determine whether there is a reasonable apprehension of bias is established by the Supreme Court of Canada in Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at page 394, and confirmed in Baker at paragraph 46:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[35] An allegation of bias must be supported by convincing evidence and cannot be made lightly. The burden of proof is on Mr. Rodriguez, and the threshold to be met is high (Fouda v Canada (Immigration, Refugees and Citizenship), 2017 FC 1176 (CanLII) at para 23). In essence, he must demonstrate that the decision-maker was closed-minded and not open to persuasion.
Emphasis added.
Another common setting out of the test of bias quotes from R v. S RD) 1997 3 SCR 484 which can also be found in Justice Brown’s decision in Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), at para 32. In the decision, he endorses Justice Kane’s setting of the test in Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956(CanLII) at para 50:
[48] In R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.
As set out in Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, recently re-iterated by Justice Strickland at para 27 in Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII), the test is not whether there was any conscious or unconscious bias or to utilize it to fill evidentiary gaps, but to view it from the viewpoint of the objective ‘reasonable person’:
66 Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry. In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259). To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was. In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice. As was said by Lord Goff in Gough, supra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.
[Emphasis in original]
In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> at para 48, Justice McDonald reminds that the threshold is extremely high:
[48] The threshold to establish bias is high. The party alleging bias must do more than
“hint”that the outcome is tainted (Turoczi v Canada (Citizenship and Immigration),2012 FC 1423 (CanLII) at paras 11-17 [Turoczi]). There must be an evidentiary foundation in support (Zundel v Citron, 2000 CanLII 17137 (FCA), [2000] 4 FC 225 (FCA) at para 36; Southern Chiefs Organization Inc. v Dumas, 2016 FC 837 (CanLII) at para 46).
We also know that:
“a reasonable apprehension of bias does not arise merely because the same officer has made the decision on the different processes whereby an applicant seeks legal status in Canada.”
[IRB Legal Policy Guide – https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar11_e.pdf – citing Kouka, Serge v. M.C.I. (F.C., no. IMM-1823-06), Harrington, October 17, 2006; 2006 FC 1236.}
2018 FC Decision Citing the Reasonable Apprehension of Bias in the Context of Immigrants and Refugees
In this data set, I looked at 19 cases that directly mentioned “reasonable apprehension of bias.” Fourteen are immigration and refugees cases and one is in the context of a CSIS matter, but significantly similar so I included it.
The cases are included in numerical order, from earliest in the year to latest in the year. I acknowledge that there could be other ones that address bias under procedural fairness. In narrowing the list, some decisions where reasonable apprehension of bias were raised at earlier tribunal levels but not raised to the Federal Court, were excluded. Those cases where the Court acknowledged but did not directly address the arguments were also included.
Given the above, how did the reasonable apprehension of bias argument fare in 2018 judicial reviews related to immigration? Out of the 19 cases analyzed, not a single ‘reasonable apprehension of bias’ argument, was altogether responsible for the granting of a judicial review. Indeed, in the large number of cases where JR was dismissed, the analysis of the failure of the argument was more robust compared to those where JR was allowed (see Analysis below).
I tried to provide a brief quasi-summary where there wasn’t a paragraph in the decision that did it clearly. Some descriptors are longer than others for that reason
I also decided to go with replicating portions of decision that addressed reasonable apprehension of bias as opposed to attempting to summarize the decision. This choice was made consciously to allow us to look at the exact wording.
[1] Malit v. Canada (Citizenship and Immigration), 2018 FC 16 (CanLII), <http://canlii.ca/t/hppb2> – McDonald J. – JR Dismissed.
The Applicant (a Filipino national) was refused a study permit as the accompanying spouse of a study permit holder on the basis of financial inadmissibility (s.39 IRPA).
On the question of whether the Officer demonstrated a reasonable apprehension of bias, Justice McDonald writes:
[18] Although the Applicant suggests that the Officer was operating under a bias, the Applicant was not able to identify any evidence or indication on the record which would support this contention.
…….
[21] Here the Applicant’s assertions of bias are not substantiated by any evidence. Therefore the Applicant’s bias arguments are without merit.
[2] Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), <http://canlii.ca/t/hq5jv> – Ahmed J. – JR Granted.
The Applicant’s (a Nigerian national) judicial review of a RAD decision upholding a RPD rejection of a protection claim based on sexual orientation. RPD member noticed similarities of BOC with that of another claimant. Applicant tried to have RPD member recused. Decision was refused on negative credibility. Applicant argues that there a reasonable apprehension of bias, erred credibility assessment, and failure to analyze Applicant’s claim under s.97. Justice Ahmed reclassifies the issue as whether there was a breach of procedural fairness and focuses attention on RAD’s failure to determined whether RPD followed Rule 27 of the RPD Rules by not notifying Minister.
[3] Hosseini v. Canada (Immigration, Refugees and Citizenship), 2018 FC 171 (CanLII), <http://canlii.ca/t/hqhd0> – O’Reilly J. – JR Granted.
The Applicant (an Iranian national) found inadmissible pursuant to s.34(1)(d) IRPA, re: an Iranian chemical engineer who was formerly worked for the National Iranian Oil Company Company (NIOC). Justice O’Reilly finds that the decision was procedurally unfair and in doing so does not address the Applicant’s third argument on reasonable apprehension of bias.
[5] The issues are:
- 1.Did the officer treat Mr Hosseini unfairly?
- 2.Was the officer’s conclusion unreasonable?
[6] The applicants also argued that the officer’s analysis gives rise to a reasonable apprehension of bias. In light of my rulings on the first two issues, it is unnecessary to address the question of bias.
[4] Mathurin v. Canada (Immigration, Refugees and Citizenship), 2018 FC 172 (CanLII), <http://canlii.ca/t/hqg19> – O’Reilly J. – JR Dismissed.
The Applicant (a St Lucian national) was an H&C PR applicant who had a previous refugee claim refused on credibility and also a prior H&C refusal. Her argument was that the Officer’s reason gave rise to bias in the analysis of the birth of her children in Canada (similar type argument to the seminal case of Baker). Justice O’Reilly dismisses the argument and defends the Officer’s assessment, ultimately denying the JR.
[3] Ms Mathurin argues that the officer’s decision was unreasonable because it overlooked important evidence supporting her application. She also maintains that the officer’s reasons give rise to a reasonable apprehension of bias, in particular, the officer’s observation that Ms Mathurin had chosen to have two children in Canada while having no immigration status here. She asks me to quash the decision and order another officer to reconsider her application.
…………..
[15] Ms Mathurin objects to the officer’s observation that she and her partner chose to have two children in Canada while having no status here. She claims that the officer’s statement, which appears twice in the reasons, is indicative of bias.
[16] I cannot find that the officer’s statement displays bias. Reading the officer’s decision as a whole, I find that the officer, in his first statement, merely noted the amount of time Ms Mathurin had spent in Canada illegally and pointed out that she had two children here during that period of time. The second statement appears in the officer’s summary of the circumstances in which Ms Mathurin and her children have found themselves. A fair reading of the officer’s statements does not support a reasonable apprehension of bias. Rather, the officer’s overall analysis reflects a genuine concern for the family and empathy for the choices they now face.
[5] Vo v. Canada (Citizenship and Immigration), 2018 FC 230 (CanLII), <http://canlii.ca/t/hr4gv> – Diner J. – JR Dismissed.
The Applicant, a citizen of Vietnam, sought judicial review of an IAD decision which dismissed her sponsorship as res judicata, specifically due to issue estoppel. This case is interesting as the Applicant did not raise this as part of her procedural fairness argument to the IAD, but Justice Diner still engaged with a potential analysis. He writes:
[22] Further, while Ms. Vo indeed argued certain fairness concerns before the IAD, she did not submit that the immigration officer’s refusal raised a reasonable apprehension of bias. Generally, a reviewing court will decline to consider issues raised for the first time on judicial review (see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 (CanLII) at paras 22-23).
[23] Even putting aside this principle, as well as the fact that the second immigration officer’s refusal is not the subject of this judicial review, there is no merit to Ms. Vo’s submission. Allegations of bias are serious and must be supported by concrete evidence (Panov v Canada (Citizenship and Immigration), 2015 FC 716 (CanLII) at para 20). It was open to the second immigration officer to explore the aspects of Ms. Vo’s application that had raised credibility concerns in prior determinations, and which continued to raise concerns. I am satisfied that an informed person, viewing the matter realistically and practically, would not find that such questioning gave rise to a reasonable apprehension of bias(Committee for Justice and Liberty et al v National Energy Board et al, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 (SCC)at 394).
[24] Specifically with respect to the “trick question” allegation, I agree with the Respondent that any bias argument fails when that exchange is looked at in its entirety:
Q: What did you and the SPR decide to do after the appeal was dismissed? We were depressed and sad for not being allowed to be together. So we decided to give birth to a child. Q: Why? I think that having a baby is evidence of our real marriage. Q: So you had a baby to show that your marriage was real? Yes.
[Emphasis added]
[6] Ahmed v. Canada (Citizenship and Immigration), 2018 FC 353 (CanLII), <http://canlii.ca/t/hrfdr> – Strickland J. – JR Granted.
The Applicant (a Pakistani National) sought judicial review of a danger opinion finding pursuant to s.115(2)(a). In the decision, the Risk Assessment Unit found some of the Applicant’s documentation submitted fraudulent. As part of the process the RAU approached Pakistani authorities for assistance relating to som e of the documentation The Applicant sought to cross-examine the RAU officer but not was not provided that opportunity.
The JR was allowed but Justice Strickland found both that the Applicant did not establish the existence of a reasonable apprehension of bias in the Delegate exceeding his or her jurisdiction but also that a reasonable apprehension of bias could have occured in the Delegate’s decision to ignore the bias allegation of the Applicant. Justice Strickland ultimately says that determining this is not necessary in this matter.
[62] As I have found above, there is no merit to the allegation that the Delegate exceeded his or her jurisdiction and, in my view, it was open to the Delegate to seek to have the new evidence submitted by the Applicant in support of his alleged new risk verified for authenticity. Doing so does not support an allegation of bias. Determining if a reasonable apprehension of bias exists involves asking “what would an informed person, viewing the matter realistically and practically- and having thought the matter through”
would conclude that bias exists (Committee for Justice & Liberty v Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at pp 394-395). Further, the threshold for finding a reasonable apprehension of bias is high and the onus lies with the person alleging its existence to rebut the presumption of impartiality (Zündel v Citron, 2000 CanLII 17137 (FCA), [2000] 4 FC 225 at para 36, citing R v S (RD), [1997] 2 SCR 484). In my view, the Applicant has not established the existence of a reasonable apprehension of bias in these circumstances.
[63] However, as the allegation of bias was made by the Applicant the Delegate could not simply choose to ignore it (Bongwalanga v Canada (Minister of Citizenship and Immigration), 2004 FC 352 (CanLII) at paras 15-16; see also Bajwa v Veterinary Medical Assn (British Columbia), 2011 BCCA 265 (CanLII) at paras 23-24, citing Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII)). Accordingly, had I not been able to address this issue on the merits, the failure to address the issue could also have been a reviewable error.
[64] Given my findings above it is not necessary for me to also consider the reasonableness of the Delegate’s findings on risk.
[7] I.P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), <http://canlii.ca/t/hrjrg> – Russell J. – JR Dismissed.
This is a very length decision relating to an RPD member’s reported ‘zero percent acceptance rate’ of refugee claims and an application for recusal on the basis of a reasonable apprehension of bias and Professor Rehaag’s report. The member refused.
The Applicants (an extended family of 24 Mexican nationals) sought judicial review on the basis that the reasonable apprehension of bias in the RPD proceedings violated s.7 Charter and the administrative law principles of natural justice.
In Russel J’s decision (with over 60 references to the term ‘reasonable apprehension to bias’), he finds that there is no s.7 Charter violation or administrative breach of procedural fairness.
[235] In my view, a reading of the transcript makes it clear that the Applicants really became concerned about the Member after learning about his acceptance rate in news articles and otherwise. This source of information is all negative. It would naturally cause the Applicants great concern, and no doubt could give rise to psychological and physical symptoms. But this is not something the Member has done or induced in the Applicants. It comes from outside the RPD. In my view, there is nothing in the hearing process itself, and the Member’s conduct throughout that process, that would cause an informed person, viewing the matter realistically and practically, to detect a reasonable apprehension of bias. What is more, I think that most of the allegations and evidence cited by the Applicants in this review to support their case for a reasonable apprehension of bias, even when they are accurate, have little substance to them and would not cause a fully-informed objective observer to detect bias on a balance of probabilities.
…..
[277] In my view, there is insufficient evidence, either from the proceedings themselves, or from witnesses commenting upon the Member’s general performance at the RPD, to support a reasonable apprehension of bias finding. From the Applicants’ perspectives, the Member was predisposed to decide against them. From the Member’s perspective, he was doing his duty:
I am bound by a Code of Conduct to decide cases based on the facts and the law before me and each case turns on its own merit…. All members are bound with the same case law and generally use the same standard documentary evidence packages for each country. Each of us are bound by the same Code of Conduct that we swore an oath to or affirmed, that we would decide cases properly on the facts and the law before us.
[8] Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), <http://canlii.ca/t/hrzn6> – Brown J. – JR Dismissed.
In Kamal, the Applicant (Bangladeshi national) sought to have an alleged expert to testify and to rely on a Response to Information Request [RIR] document, not earlier tendered (para 24) in relation to a s.34 terrorism case. The Immigration Division allowed a lengthy report authored by the alleged expert but dismissed the request for the proposed testimony. The Applicant argued that the ID member recuse herself on the ground of bias for ‘prejudging the case’ by disagreeing with the Applicant’s interpretation of the RIR (para 30). The ID found the allegation baseless and dismissed the recusal request.
[33] Before me, the Applicant specifically alleged not only apprehension of bias but actual bias:
This finding by the ID is tainted by bias as it disallows the Applicant from rebutting the Minister’s case against him; indeed it is a grave breach of natural justice as by refusing [name of the alleged expert] to testify on this basis, the ID is effectively breaching the Applicant’s right to put forward his case.
[34] In my respectful view, the allegations of apprehended bias and actual bias are unsupported. The ID made an evidentiary ruling in the course of an inadmissibility hearing. The Applicant requested relief from his failure to follow the rules established by the ID for the admission of oral evidence. It was open on the record for the ID to decline to abridge time; the ID not only considered the lateness of the filing but also considered the substance of the proposed testimony. The ID considered the Applicant’s newly-discovered RIR, which the Applicant used to support the request for oral testimony. The ID noted that the Applicant’s discovery of the RIR was extremely late in the day (the night before the hearing). Further, the ID found its lateness was inadequately explained.
[9] Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> – McDonald J. – JR Granted.
In one of the most important FC cases in 2018 that has inspired a greater conversation about children in care accessing citizenship. Justice McDonald addresses the Applicant’s (a Somali national) argument that the Minister’s Delegate (MD) redetermination process involved bias. Justice McDonald dismisses this argument writing:
[49] Here, Mr. Abdi’s arguments are largely speculative, pointing only to perceived associations between the MD and CBSA officials. While the MD and the CBSA officials share a common employer, there is no evidence that the MD consulted with others before rendering her decision.
[50] As noted above, the decision by CBSA to arrest Mr. Abdi is not at issue in this judicial review. Further, the actions of CBSA in taking Mr. Abdi into custody, without more, does not provide an objective indication of bias, sufficient to meet the high threshold set out in Committee for Justice and Liberty.
[51] I conclude that there is insufficient evidence to support a reasonable apprehension of bias finding.
[10] Bains v. Canada (Citizenship and Immigration), 2018 FC 740 (CanLII), <http://canlii.ca/t/ht2c1> – Boswell J. – JR Dismissed.
This is a JR involving a Canadian sponsor and his Indian-national spouse. There was not much discussion in the matter about the law or application of the reasonable apprehension of bias test. The Applicant’s argument was that the IAD refusal of the spousal sponsorship was based on a moral judgment of hte Applicant as a sex offender. Boswell J writes in response to this allegation:
[20] As to the Applicant’s allegation that the IAD showed bias based on a moral judgment of him being a sex offender, this too is devoid of merit. The Applicant provided no legal argument as to how the test for a reasonable apprehension of bias is met in this case. Just because the IAD asked itself why Ms. Bains and her family would agree to her marriage with a sexual offender does not, in my view, show bias of any kind.
[11] Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII), <http://canlii.ca/t/ht3x3> – Strickland J. – JR Granted.
This very interesting case (that I quoted in the outset) involves an argument that the Member demonstrated a reasonable apprehension of bias by not asking the same questions at a second de novo hearing that had been asked by the same Member at the first hearing, which was tainted by interpretation issues. The case involves an Applicant (Chinese national) who made a refugee-claim based on her practice of Falun Gong that was found manifestly unfounded.
[28] It is clear from the transcript of the de novo hearing that the Applicant herself was concerned that her poor performance in the first hearing would impact the decision to be rendered after the de novo hearing. However, the test for a reasonable apprehension of bias is not to be utilized by the “very sensitive conscience”. Understandably, the Applicant would fall into that category in these circumstances, thus the test is not met simply on the basis of her concern.
[29] Moreover, it was open to the Member to choose what questions he wished to put to the Applicant. As he pointed out, it was a de novo hearing, accordingly, he was not compelled to try to recreate the first hearing. Further, there is jurisprudence that suggests that religious knowledge cannot be equated with faith and that the quality and quantity of religious knowledge to prove faith is unverifiable (Zhang v Canada (Citizenship and Immigration), 2012 FC 503(CanLII) at para 16). Put otherwise, religious knowledge cannot necessarily be equated to the genuineness of a claimant’s beliefs. While a certain level of knowledge may be expected, the sincerity of the belief is what is legally relevant (Ren v Canada (Citizenship and Immigration), 2015 FC 1402 (CanLII) at para 18; Liang v Canada (Citizenship and Immigration), 2017 FC 1020 (CanLII) at para 18. Accordingly, the Member was not compelled to test this or to test it in the manner that the Applicant’s counsel would prefer.
[30] That said, I acknowledge that there could be a perception that by not asking the Applicant the same questions as to her Falun Gong knowledge the Member was, in effect, precluding the Applicant the opportunity of the “redo” that she had sought and been denied at the close of the Member’s questions in the first hearing. I would also point out, however, that when the Member did attempt to ask a different question about her religious knowledge – which of the five exercises is focused on getting rid of karma and jealousy – counsel objected to the question on the basis that it was misleading because there was no one exercise that does this and stated that, in his view, this was a trick question. The Applicant then duly answered that it was necessary to practice all five exercises to achieve this.
[31] With respect to the Applicant’s submission that the Member focused on peripheral matters rather than the Applicant’s “Falun Gong identity” (Rasheed v Canada (Minister of Citizenship and Immigration) 2004 FC 587 (CanLII)(“Rasheed”), I note that the Member made a number of negative credibly findings. In my view, even if one or all of them were unreasonable, this is demonstrative of reviewable error, not bias. Further, in Kozak v Canada (MCI), 2006 FCA 124 (CanLII), the Federal Court of Appeal stated that the legal notion of bias also connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration (at para 57). Based on the record and the decision, I am not persuaded that in this matter the Member based his decision on improper considerations. Rather, the Applicant would prefer that the Member had focused on other evidence.
[32] In conclusion, viewing the matter in whole, I am not persuaded that the Applicant has established that 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 Member, whether consciously or unconsciously, would or did not decide fairly and therefore that he erred by failing to recuse himself.
[12] Ching v. Canada (Immigration, Refugees and Citizenship), 2018 FC 839 (CanLII), <http://canlii.ca/t/htl6j> – Diner J. – JR Granted.
In Ching, the Applicant (a Chinese national) had sought recusal of the IAD member. The Applicant has had a decade long series of immigration proceedings, including the pursuit of a serious criminality finding against him. Justice Diner addresses the reasonable apprehension of bias argument in the last section of his decision after setting aside the appeal and remitting the matter. However, he had some harsh words for counsel’s raising of this ground.
[192] Mr. Ching has a variety of ongoing administrative and civil proceedings, which overlap in many respects. His litigation history also includes allegations of bias against the member who decided the IAD’s Inadmissibility Decision. As a result, I will comment on his allegations of bias made in these Applications, with respect to the member who issued the IAD’s Refusal to Reconsider, for Mr. Ching’s future benefit.
[193] Mr. Ching’s Amended Statement of Claim in his civil action impugns certain acts and omissions of the RCMP Liaison Office in China, and pleads that it conspired with the People’s Republic of China’s Ministry of Public Security in an attempt to deliver Mr. Ching to torture and unlawful imprisonment. On February 6, 2017, during the reconsideration hearing, the IAD member disclosed to the parties that he was a former member of the RCMP. The relevant excerpt of the transcript is as follows:
[transcript omitted for length]
[195] Mr. Ching argued that the test set out in Committee for Justice and Liberty et al v National Energy Board et al, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 [Committee for Justice] was met, namely that “an informed person, viewing the matter realistically and practically — and having thought the matter through”, would conclude it “more likely than not that [the member], whether consciously or unconsciously, would not decide fairly” (at 394). Mr. Ching also submitted that actual bias need not be established, only a reasonable apprehension of bias, relying on R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 (at para 109) [RDS].
[196] Mr. Ching’s position is untenable. I remind him that allegations of bias must not be undertaken lightly and that the threshold for a finding of bias is high (RDS at para 113). The member’s former membership in the RCMP, on its own, does not raise a reasonable apprehension of bias with respect to the IAD’s Refusal to Reconsider. Further, Mr. Ching did not raise his bias concerns at the earliest reasonable opportunity, as required by the jurisprudence (see AB v Canada (Citizenship and Immigration), 2016 FC 1385 (CanLII) at para 139).
[13] Nassif v. Canada (Citizenship and Immigration), 2018 FC 873 (CanLII), <http://canlii.ca/t/hv2zs> – Annis J. – JR Dismissed.
In Nassif, the Applicant (presumably, Lebanese nationals) argued that there was a reasonable apprehension of bias demonstrated by the Officer questioning her right to enter Canada that transferred into the dismissal of the appeal of the removal order. Annis J refused this argument as it was not raised in the IAD appeal:
[23] The applicant claims that the immigration officer demonstrated bias upon her arrival at the Montréal International Airport on May 3, 2014, by questioning her right to enter Canada, which was subsequently reflected in the officer’s decision to dismiss the appeal of the removal order.
[24] There is no evidence indicating that the applicant or her counsel raised an apprehension of bias during the hearing before the IAD. The Court agrees with the respondent that the applicant is prohibited from raising this argument in the judicial review.
[14] Khan v. Canada (Public Safety and Emergency Preparedness), 2018 FC 881 (CanLII), <http://canlii.ca/t/htsjd> – Lafrenière J. – JR Dismissed.
In Khan, the Applicant’s vacation of convention refugee status was allowed by the RPD. The Applicant requested that the RPD member recuse themselves arose in the context of a series of postponement delays. I have reproduced paragraphs 14 – 21 of the decision below as they adequately set out what occur.
[14] The proceedings before the RPD were delayed by several postponements. The hearing scheduled for November 2014 was postponed after the Applicant contested the validity of documents submitted by the Minister and he presented documents that shed doubt as to whether he was Arshad Iqbal.
[15] Another hearing was scheduled for April 30, 2015. Three days before the hearing, counsel for the Applicant requested a postponement on the grounds that he was not available on that date and that the Applicant’s medical condition did not allow him to prepare for the hearing. A note from a medical doctor in British Columbia was produced in support of the request. A postponement was granted by the RPD. On April 29, 2015, the RPD received further correspondence from counsel for the Applicant indicating that the Applicant’s health problems were more serious than initially thought. Counsel indicated that a medical opinion on this issue would be sent, but nothing was ever submitted. The hearing was rescheduled for October 26, 2017, with two months’ notice to the parties.
[16] Two days before the rescheduled hearing, counsel for the Applicant sought another postponement on the basis that his client was in a “psychological crisis”
and unable to give instructions. The Minister objected to the request given the lack of proof supporting the Applicant’s condition.
[17] At the hearing, counsel for the Applicant called two witnesses in support of his allegation that the Applicant was in Vancouver and unable to proceed for medical reasons. The Applicant’s wife and a friend, who was a pharmacist in Pakistan, testified that they visited the Applicant in September 2017 and that, during the visit, the Applicant was agitated, talking nonsense, paranoid and constantly repeating that people want to kill him. Both witnesses testified that the Applicant was taking medication; however, neither knew what medication had been prescribed to him. Both witnesses claimed that they did not know the Applicant’s address or phone number, and were only able to get in touch with him through an “Indian guy”
who lives in Vancouver. The RPD found the two witnesses not to be credible and, in the absence of evidence of incapacity of the Applicant or other impediment to attend the hearing, rejected the request for postponement. Detailed reasons were provided orally at the hearing and are set out in paragraphs 20 to 24 of the Decision.
[18] Counsel for the Applicant then made another request for a postponement on the grounds that he was not ready to proceed. Counsel stated that he had only prepared to request a postponement and had not prepared the case itself. According to counsel, he had three witnesses to call. The RPD denied the postponement request as counsel had had ample time to prepare his case and also declined the RPD’s offer to have the witnesses testify by phone.
[19] Counsel for the Applicant then asked the RPD member to recuse herself from the case, arguing that she had acted in an “extremely belligerent fashion”
towards him. Counsel claimed that the member constantly interrupted him in an impolite fashion, did not listen well to the witnesses, and did not act fairly. Counsel further accused the RPD member of snapping at him and behaving in an impolite fashion towards him in the past.
[20] Applying the test for bias set out in Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 369, 1976 CanLII 2 (SCC), the RPD rejected the recusal motion, finding that the recusal request was arbitrary and not credibly grounded. The hearing subsequently proceeded, with no witnesses being called by the parties.
[21] As reflected earlier, the RPD allowed the application of the Minister to vacate the refugee protection that had been conferred to the Applicant by the CRDD and to exclude him from refugee status under article 1Fb) of the Convention.
Counsel argued that the RPD displayed favouritism to the Minister causing the whole proceeding to be unfair, and rejecting all of the Applicant’s evidence for no reason (para 34).
Justice Lafrenière dismisses the reasonable apprehension of bias argument:
[36] A review of the hearing transcript reveals that the RPD member did not show any bias towards the Applicant or his counsel or any predisposition on any issues. To the contrary, the RPD member was professional and courteous and exhibited great patience with Applicant’s counsel. Although she admonished Applicant’s counsel on occasion, her interventions were warranted given that he repeatedly made assertions, without evidence. I am satisfied that the RPD member conducted the proceeding in a fair, impartial and judicious manner.
[37] Any informed person viewing the matter would not conclude there was a reasonable apprehension of bias from the RPD member. The Court reminds the Applicant that an allegation of bias against a tribunal is serious and cannot be invoked solely because the Applicant disagrees with the RPD’s decision.
[15] Gebreyesus v. Canada (Citizenship and Immigration), 2018 FC 966 (CanLII), <http://canlii.ca/t/hvd9h> – Zinn J. – JR Dismissed.
The Applicants (husband and wife of respective Eritrean and Ethiopian nationality) sought JR of a negative RAD decision which upheld a negative RPD finding.
Counsel argued that the Panel member was alleged to have made an inaccurate reference to the Applicant’s Ethiopian citizenship and allowed an adjournment to allow the Minister to intervene leading to a reasonable apprehension of bias. The RPD then decided that the Applicant was excluded by Article 1E of the Refugee Convention. The RAD dismissed the appeal finding there was no reasonable apprehension of bias.
Zinn J. addressed the RPD’s actions as follows, without directly addressing the apprehension of bias but upholding the reasonableness of the decision:
[22] In my view, the RPD acted in accordance with the Rules and there is nothing in its conduct to support the allegation that it had made a determination that Article 1E applied. The RPD by way of its first letter had invited the Minister to address the exclusion issue only six days before the hearing. When new evidence emerged in the hearing it was adjourned, pursuant to Rule 27, in order to update the Minister. The panel did not take any position or make any findings and it arguably had an obligation to update the Minister, especially when as here the first notice was given so close to the hearing and the Minister had not yet responded.
[23] Furthermore, when the questionable documents came to light, and the RPD concluded that the Minister’s participation might be of assistance, it had a statutory obligation to advise the Minister as set out in Sub Rule 27(2) of the Rules.
[16] Scott v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 178 (CanLII), <http://canlii.ca/t/hvdcb> – Gleason J.A – Appeal Dismissed.
Self-representative argued that Justice Roy’s dismissal of an extension of time JR for was biased due to the fact that he formerly served as a government lawyer prior to appointment to bench (para 1). Justice Gleason found there was no reasonable apprehension of bias. She writes:
[3] There is no indication that Justice Roy was previously involved in any matter involving the appellant and the mere fact that he held the positions as outlined in the appellant’s material is insufficient to establish a reasonable apprehension of bias, see, for example, Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259 (Wewaykum)at paras. 76, 81-85; Amos v. Canada, 2017 FCA 213 (CanLII), 2017 FCA 213 (Amos) at paras. 18-22. Neither his past functions as General Counsel in the Criminal Law Policy Section at the Department of Justice nor as Deputy Secretary to the Clerk of the Privy Council and National Security Advisor to the former Prime Minister required Justice Roy to have recused himself from deciding the appellant’s motion.
[4] Those who wish to disqualify a judge bear a heavy onus in light of the presumption of impartiality and must prove that the facts are such that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it is likely that the judge would not decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, (1976) 9 N.R. 115.
[5] No such conclusion can be drawn in this case as there is no evidence or even any suggestion that Justice Roy was in any way involved in the appellant’s complaint against CSIS. As we held in Amos, absent such involvement, prior employment is insufficient to rebut the presumption of impartiality. In addition, as in Wewaykum, the passage of time militates strongly against a finding of bias in this case. Thus, an informed person, having thought the matter through and viewing it realistically, would not conclude that there was a reasonable apprehension that Justice Roy was biased.
[17] Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC 995 (CanLII), <http://canlii.ca/t/hvmqq> – Gagné J – JR Dismissed.
This case involved the JR of the IAD’s refusal of a Cuban national’s spousal sponsorship. The context of this reasonable apprehension of bias seemed a little far-fetched and convoluted with a reasonableness and procedural fairness argument. As set out in the decision:
[33] Mr. Rodriguez submits that the IAD gave rise to a reasonable apprehension of bias:
- By criticizing the fact that he was challenging the ID’s finding of misrepresentation;
- By indicating that the new evidence could have been presented to the ID and to the Superior Court, whereas the IAD hearing is a de novo hearing;
- By indicating to the minister’s counsel that there was no need to cross-examine him, an indication that its decision had already been made;
- By displaying animosity towards him through irrelevant statements;
- By misinterpreting his current spouse’s testimony;
- By minimizing his efforts to find employment and by discriminating against his status as a [translation] “homemaker”; and
- By citing the fact that he frequently goes out dancing to minimize the effects of his back pain.
[54] Just because the IAD interprets the evidence in an unfavourable manner for Mr. Rodriguez does not mean that the IAD is biased.
[61] Therefore, I am of the view that “an informed person, viewing the matter realistically and practically—and having thought the matter through—”
would not conclude that there is a risk of bias on the part of the IAD in Mr. Rodriguez’s case.
[18] Lakatos v. Canada (Citizenship and Immigration), 2018 FC 1061 (CanLII), <http://canlii.ca/t/hvx28 – Southcott J. – JR Dismissed.
In Laktatos, the RPD refused an argument from a family of Hungarian Romas. The Applicants argued that their discrimination and racism amounting to persecution. The Applicants objected to the RPD’s questioning of the adult female Applicant. Southcott J writes:
[2] As explained in greater detail below, this application is dismissed, because I have found that the RPD did not demonstrate conduct giving rise to a reasonable apprehension of bias, and the Applicants’ arguments have not established that the Decision is substantively unreasonable.
[7] They now apply for judicial review of this decision under section 72(1) of the IRPA. They submit that the decision is tainted by a reasonable apprehension of bias, that it breaches their parents’ Charter-protected right to parental decision-making, and that the immigration officer’s assessment of their best interests is unreasonable.
[16] Portions of the Member’s questioning and his exchange with counsel, which are raised by the Applicants in support of their bias allegation, demonstrate that the Member was sceptical about components of the Applicants’ assertions. The Member questioned the assertion that the homeless are permitted starve to death in Hungary and sought support for this assertion in the country condition documentation. The Member also explained that he was having difficulty with the Applicants’ allegation that a Hungarian physician had refused to prescribe appropriate medication for their child, as the Applicants had not presented evidence to support the diagnosis that they alleged required the medication. Neither area of questioning demonstrates that the Member was not considering the Applicants’ claims fairly.
[17] At the hearing of this application, the Applicants’ counsel raised concern about how the Member’s questioning affected Ms. Horvath’s ability to give her evidence. However, as the Respondent points out, the Applicants have not filed affidavit evidence from Ms. Horvath in support of this argument.
The appellant alleges that the Federal Court’s decision should be set aside because she claims there is a reasonable apprehension that Justice Roy was biased in light of the roles he held as a government lawyer prior to his appointment to the bench.
[19] Jani v. Canada (Citizenship and Immigration), 2018 FC 1229 (CanLII), <http://canlii.ca/t/hwjqk> – Norris J. – JR Dismissed.
In Jani, the Applicants (a Canadian sponsor) argued that the H&C officer demonstrated bias in not understanding the situation relating to the Indian national children he was trying to sponsored that were barred under R.117(9)(d) IRPR. Norris J. dismisses this argument justifying that it was a different officer who conducted the officer and who made the decision [which as a side note, although not discussed in the decision: is not a breach of the procedural fairness concept of ‘who hears, decides‘]. Norris J writes:
[28] The applicants rely on the record of the interview on March 23, 2017, and their father’s affidavit to support their submission that the decision denying their H&C applications is tainted by a reasonable apprehension of bias. Mr. Jani states that during the interview the officer’s “manner and tone of questioning was quite hostile, as if she did not understand our situation at all.”
He felt the officer was critical of him for not having discussed a potential move to Canada and separation from their mother with Kshitij or Darshith. Mr. Jani was of the view that the officer was biased towards himself and Ms. Pasla.
[29] There is a simple answer to the applicants’ submission. The officer who conducted the interview is not the officer who made the decision. The case had been reassigned in the interim. The officer who conducted the interview asked Mr. Jani and Ms. Pasla a number of direct questions about their relationship and the parentage of the children, among other things. Given the unusual circumstances of this case, it was only fair for her to put her concerns squarely to Mr. Jani and Ms. Pasla and to give them an opportunity to address them before a decision was made. But even if there were a reasonable basis to conclude that the officer who conducted the interview did not approach the applications with an open mind, something I need not decide, there is no basis whatsoever to conclude that the officer who made the decision was influenced improperly by the views of the officer who conducted the interview.
Analysis
Of the 19 decisions (18 FC and 1 FCA), judicial review was granted in 6 cases. In most of the 13 cases where judicial review was dimissed, the Federal Court (and FCA panel of) judges took quite a bit of care in establishing the contours of the law and the high thresholds. In many cases, an ardent defense of the system and the decision-makers rationale is carefully laid out. The same cannot be said for the cases where JR was granted. This was the case even in the reviewed decision of Justice Ahmed in Oyejobi, a judge who rarely minces words when analyzing the actions of decision-makers. Judges who granted JR preferred to overturn the decision on other basis, stating there was no need to engage with the argument.
My feeling is the ‘reasonable apprehension of bias’ not only is viewed as a case-specific procedural fairness issue but one that undermines the rule of law. As such, judges prefer not to give off the impression that there are potential systematic problems. As such, finding other procedural fairness faults or the decision-making unreasonable, allows focusing on safer, calmer waters.
Yet, with upward demands, should the Federal Court more actively engage with the concept in cases where it is successful, so as to ensure that there is not a chill created in raising the argument. Where the Federal Court so clearly steps in the shoes of the decision-maker when upholding the lack of bias in the system, does that encourage challenging voices to hold back for fear of being ostracized. Is that even the role of the FC on judicial review? Should they simply keep their assessment short and thrift where the threshold of bias clearly not met and avoid a dicta defense?
It could also be very well that the cases where it was part of the successful argument were settled by the Department of Justice (my colleague Raj Sharma shared on example where he presumes this may have happened).
From my perspective, I do hope 2019 brings a few cases where the Federal Court utilizes reasonable apprehension of bias cases (even where the JR may have been granted on different grounds) to heed caution to decision-makers that a reasonable person may begin to formulate concerns with the decision-maker bias, especially the oft-misunderstood concept of unconscious bias. Counsel should not also be dissuaded by the high-bar or the fear of being criticized, for putting together well-though out criticisms of the structure of immigration-decision making that it inherently biased. I do see a room for the argument – even if we never have another Baker-like decision that spells out the bias so clearly and unequivocally.
Moving forward, this piece is still a work in progress. I hope to compare other years and look at other decisions where a reasonable apprehension of bias was found and to see if I track any historical trends. If anyone is interested in this project, please message me!
