This document discusses bias in administrative law decision making. It defines bias as a lack of neutrality that could undermine a decision. There are two types of bias - actual bias, where a relationship could improperly influence a decision, and reasonable apprehension of bias, where a reasonable person may perceive improper influence. The test for bias considers whether an informed person would believe the decision maker may decide unfairly. If bias is alleged, the decision maker must determine if they should recuse themselves from the case to avoid appeals based on a tainted process.

1. BCTA 308:
Administrative Law
Chapters 7 Administrative Law, Principles &
Advocacy
Allegations of Bias Against a Decision Maker

2. What is bias
•Bias is a lack of neutrality on the part of a
decision maker with regard to the issue being
decided. If a member of a tribunal is biased, the
decision reached by that tribunal can be
overturned upon judicial review.
•It is better to deal with the issue of potential
bias as the party becomes aware of it.

3. What is bias
•When deciding whether or not bias exists, the
Court does not look into the mind of the judge
himself, or whether the judge really would act in
favour of one side over another.
•Instead the Courts look at the impression or
appearance given to other people. However
there must be a real likelihood of bias in the
minds of a reasonable observer in order for bias
to exist.

4. Institutional & Individual Bias
•The decision maker must be free of any
individual bias. Also the agency must be free of
any institutional bias based on its structure or
composition.
•One of the main protections against institutional
bias is that the administrative agency must be
reasonably free from a government agency that
is involved in the proceeding.

5. Institutional & Individual Bias
•Institutional bias becomes a concern if the
agency has multiple roles and functions, and
these overlap in a way that suggests that some
employees have inappropriate influence over the
decision maker.

6. Two Types of Bias
There are two kinds of bias - actual bias and
reasonable apprehension of bias.
Examples of actual bias include financial
interest in the outcome of the decision, a close,
personal connection with one of the parties. The
clearest example of a bias would be where an
individual sitting on a tribunal is involved in the
decision that is being appealed.

7. Two Types of Bias
Factors that would give rise to concerns about
actual bias would include:
• Previous relationships between decision maker and a party
• Decision maker or family has financial interest in the outcome
• Belongs to an association that has taken a position on the
issue before the tribunal
• Decision maker expressing strong dislike of a party
• Decision maker has accepted gifts from one of the parties
• Decision maker expresses opinion early on in the proceeding
before all the facts are heard

8. Reasonable Apprehension of Bias
Reasonable apprehension of bias is less
straightforward. It is defined by S. Blake in
Administrative Law in Canada as:
“a situation where a reasonable person, knowing
the facts concerning the member of the tribunal,
would suspect that the member may be
influenced, albeit unintentionally, by improper
considerations to favour one side in the matter
he or she is to decide.”

9. Reasonable Apprehension of Bias
•Reasonable apprehension of bias is more of a
notion that bias exists. While there may not be
clear facts revealing the bias, a strong argument
will support allegations of bias.
•Once bias has been raised, it is up to the
tribunal to determine whether or not the bias
actually exists.

10. What is the Effect of Bias
•In Canadian law, a reasonable apprehension of
bias is a legal standard for disqualifying judges
and administrative decision-makers for bias.
Bias of the decision-maker can be real or merely
perceived. Either may at times be sufficient to
remove the decision maker.

11. How does a party raise the issue of bias
When do you raise a concern about bias?
It is best to raise the issue of bias prior to the
tribunal hearing so that the issue can be
determined prior to the witnesses starting to
give evidence.

12. How does a party raise the issue of bias
How do you raise it?
Contact the person or organization that has set
up the tribunal hearing and informed you of it.
Find out who is sitting on the tribunal and what
they do. If you believe that one of these tribunal
members has actual bias or you have a
reasonable apprehension of bias, notify the
person or organization in charge of the tribunal
hearing.

13. How does a party raise the issue of bias
How do you raise it?
Sometimes you do not become aware of a
concern about bias until the hearing has
started. In such a case, you would bring it to the
attention of the decision maker. Usually if you
wish to have the member remove themselves,
you would bring a motion for recusal.

14. How Does a Party Prove the Issue of Bias
•Those complaining of bias or lack of
independence still have to satisfy a very strict,
demanding test and the complaint must not be
idly or frivolously made, without evidence in
support of the claim.
•The requirements of impartiality and
independence are common law requirements
that can be ousted or modified by statute.
Constitutional challenges in this area have
largely failed.

15. What is the test for bias
The test for bias was first stated in Committee
for Justice and Liberty v. Canada (National
Energy Board), [1978] 1 S.C.R. 369:
...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. .
. . [The] test is "what would an informed person,
viewing the matter realistically and practically
and having thought the matter through
conclude."

16. What is the test for bias
It was further stated in Melo Sanchez v. Canada,
2011 that:
“A reasonable apprehension of bias may be
raised where an informed person, viewing the
matter realistically and practically and having
thought the matter through, would think it more
likely than not that the decision maker would
unconsciously or consciously decide the issue
unfairly [emphasis added].”

17. What should the decision maker do?
•The decision about whether or not to accept a
motion for recusal for bias is up to the decision
maker, and nobody else.
•Sometimes it makes sense for the decision
maker to step down even if they don’t feel there
is actual bias, or a reasonable apprehension of
bias, as this prevents the proceeding from being
tainted and being reviewed or appealed.

18. What should the decision maker do?
•It is a generally accepted rule that a decision
maker should NOT give evidence in his or her
own defence of the claim.
•While it may be easy for a decision maker to
step down, this would require a new trial to be
held, causing delays of time, and additional
expense.