Impartiality

Question 1

What is the main principle?

Answer 1

Nemo Judex- should not be a judge in their own cause

Question 2

State the case saying need for impariality

Answer 2

Charakaoi

Independence and impartiality are at the cornerstone of the common law duty of procedural fairness

A dm must be independent and must be impartial, but also must be perceived to be both too.

Question 3

What is bias

Answer 3

A predisposition to a certain outcome
A lack of an open mind
A lack of neutrality

Question 4

Name the 2 cases that define impartilaity

Answer 4

Valente
R v s

Question 5

Valente

Answer 5

Impariality is a lack of actual or perceived bias

Question 6

R v S

Answer 6

Impartiality shows the DMS disinterest in the outcome of the decision so that they are persuaded by the facts and evidence

Question 7

Canadian counsel on judicial conduct

Answer 7

Impartiality doesn’t mean complete objectivity
Acknowledges that judges come in with their own opinions, experiences and expertise an cant just negate that
Jyst has to be able to entertain and act upon different POVs.

Question 8

The duty of impartiality
name Case

Answer 8

Under common law, the duty of an impartial decision-maker is an absolute right and cannot be qualified by the fact that the decision is correct

Baker
PF requires that a DM be impartial, that is- no reasonable apprehension of bias.

Question 9

Correlation between nemo judex and audi alteram

Answer 9

Both require that a dm be free from bias so that a party will be able to present case and they wont be a judge in their own cause

Question 10

What is the standard of bias

Answer 10

Must be a reasonable apprehension of bias, dont need to show that there is actual bias, a mere suspicion of bias sufficies

Question 11

Whats the rationale for this standard
State cases

Answer 11

R v S
Justice has to be served literally, but the public also has to see that justice is being done
If public see that a dm is biased, this decreases the confidence in the legal system

Newfoundland

Cant actually know what is going on in the mind of the dm so reasonable suspicionn is enough

Question 12

What do u not have to show n the standardf of bias

Answer 12

That the bias resulted in prejudice

Question 13

What is the test for impartilaity in Canada

Answer 13

Comittee for justice v National Energy Board

Whether an informed person having viewed the matter would believe that the dm is more unlikely or likely to be unconsiouy or uncnsialy biased so as to make an unfair deicion

NB: Reuires a real likelihood rather than a mere suspicion

Question 14

What is the degree of impartilaity?

Answer 14

Varies w context
Gold standard: The impartality expected of judges

Question 15

Factors to consider on the degree of impartiality

Answer 15

Newfoundland telephone
Created a baker like contextual analysis
Nature of the decision
Issue to be decided
Activities and fucntion of Dm
nature of proceedings
Interest of the individual

Question 16

What are the 3 different types of context for impartiality?State degree of impartiality.

Answer 16

1. Adjudicative
   Looking at facts and applying law
   Impartiality expected of that like judges
2. Investigatie
   Lookig and analysing evidence
   Less than adjudicative
3. Ministerial: Actions the minister taking in capacity
   Non adjudicative so warrants a lesser degree of impartilaity

Question 17

Statutory exclusion

Answer 17

Some legislture may allow for/ provide for bias

Ocean Port
The legislature can exclude aspects of PF as long as its within the consitutional limits.

Question 18

What are the specific situations that give rise to a reasonable apprehension of bias

Answer 18

1. Personal or financial stake/interest
2. Current personal relationship
3. Past association with litigants/representatives
4. Extra judicial knowledge/ past involvement
5. Words/conduct of the decision maker

Question 19

1. Personal or financial stake/interest

Answer 19

situations where dm has a personal interest in the ourcome of the deicison, usually gives rise to reasonable pprehension of bias
Must be a sufficient link between the decision and the financial stake
cant just be a remote interest

test: whether reaosnable person would find it more unlikely thn not tt thy would e biased

Question 20

2. Current personal relationship

Answer 20

When a dm has a personal relationsho w someoneinvolved in matter, impattiality can be hindered
usually a party but can extend to counsel//witnesses
thats why judges cant decide on cases of former colleagues for 5/8 years
Issue: cant expect a dm to stop all relationships

Question 21

Factors to consider for
2. Current personal relationship

Answer 21

1. Current relationhsips hold greater weight than past relationships
2. The intesnity of the relationshop also relavtn
   Friend/familial relationship more weight than mere business relationship

Question 22

3.Past association with litigants/representatives

Answer 22

Reaosnable ap of bias may arise if dm had past professional relationship w counsel/parties

Question 23

Types of relationships concerned

Answer 23

Admin decision makers- used for their expericne or expertise on matter

Political/public service- may identify w certain political groups or social causes

Question 24

case on
3.Past association with litigants/representatives

Answer 24

Tekksavvy

Meetings that discuss the issues or are concerned with the hearing undermine fairness and should not happen.

members are welcome to attend, but should not discuss their matters before them.

Meetings between two people, one a regulator and one a regulatee, without any independent witnesses or other evidence to substantiate why the meeting happened and what was discussed can be a recipe for trouble.

Question 25

4. Extra judicial knowledge/ past involvement

Answer 25

This is when the dm has prior knowledge of the issue or has been previosuly invoved.

Question 26

4. Extra judicial knowledge/ past involvement
   why does this give a reasonable apprehension of bias?

State case

Answer 26

1.The decision must be made entirely on the matter before them- If they have specific previous knowledge, it may undermine the process.

2. If they have prior knowledge, they may have formed an opinion which could make it difficult for them to be swayed or convinced.- lack of open mind.

Comittee for justice v NEB

involved w planing proposal, became judge, reasonable app of bias

Question 27

5. Words/conduct of the decision maker

Answer 27

A decision maker may be disqualified due to their hostile behaviour or statements if they would cause a reasonable person to believe that they are biased in favour of a certain party or incapable of acting impartially.
Can occur before, after or during the proceedings.
Must distinguish between experiences and views that a decision-maker brings to a hearing,ie. Their opinions on the matter.
Concerns derogatory or clearly close-minded statements that demonstrate a reasonable apprehension of bias.

Question 28

5. Words/conduct of the decision maker
   State cases

Answer 28

Morreu v Newbrunswick
Live off wellfare and we pay them derogatory so as to give rise to reasonable apprehension of bias

NEwfoundland telephone
made press statements agaisnt one of the parties, gave rise to reasonable app of bias.

Question 29

Instiutional bias

Answer 29

Just because an institution has several functions doesn’t mean that that raises an apprehension of bias
However theres a possibility

Question 30

Impartiality raised wgy

Answer 30

Overlap in
Policy
Investigative
Adjudicatie

But note legislature inteded it- parliamentary sovereignty

Question 31

NAme case

Answer 31

Queec v Quebecv
Facts: Concerned an allegation that the director structure didn’t meet the requirement of independence and impartiality because it allowed certain members to participate in both investigation and complaints and decision making.

Held: The function wasn’t prima facie troubling, but there has to be some sort of separation.
Possible under the structure that a director holds a hearing and participates in the decision-making process.
It is open for the legislation to house these operations in one agency but needs to be done in a manner that doesn’t raise reasonable apprehension of bias.
The courts slightly amended the test for personal bias to fit into institutional bias.
Tests: Whether or not a well-informed person would have a reasonable apprehension of bias in a substantial number of cases.

Question 32

`When to raise issues of bias

Answer 32

As soon as the party becomes aware of any reasonable apprehension
Failure to do so could result in a waiver

Question 33

Waiver

Answer 33

Tekksavvy
A party upon knowing of a procedural flaw must make the decision-maker aware.
Failure to do so constitutes a waiver of the flaw, defect or irregularity.
Therefore it cannot be raised in a judicial review/ statutory appeal of the decision.

Question 34

Justification for waiver

Answer 34

Held:

1. Raising the issue allows the decision maker to review the situation and make amends before it becomes a prejudiced result.
   Even when the mistake cannot be corrected, other measures can be taken to mitigate any prejudice.
2. If the issue was of any importance to the party, they would raise it as soon as reasonably possible.
3. If they realise the mistake and do not say anything about it, it will only look like this was a tactical reason.

Administrative law never rewards purely tactical behaviour that benefits a party to the detriment of the larger public interest or the proper administration of justice.