Apprehending Reasonable Apprehension Of Bias

Three Recent Reasonable Apprehension of Bias Findings by the Ontario Court of Appeal

Careful observers may have noticed that the Ontario Court of Appeal has allowed three civil appeals on the basis of reasonable apprehension of bias in the last few months. This presents an opportunity to reflect on what conduct constitutes reasonable apprehension of bias and what it means for an appeal court to make such a finding.

What is Reasonable Apprehension of Bias?

The formal test for reasonable apprehension of bias is well-established and reflects the now seminal Supreme Court jurisprudence laid out in R. v. Campbell, R. v. S. (R. D.), and Wewaykum Indian Band v. Canada. There is a presumption that judges are impartial, and there is a high threshold to successfully challenge a decision based on reasonable apprehension of bias.1 At the same time, challenges to a judge's impartiality necessitate scrutiny over judicial conduct because the integrity of the legal system requires both fairness and the appearance of fairness throughout the court process;2 without both, public confidence in the system is lost.

What are the markers of a reasonable apprehension of bias? The test is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge.3 The test requires objectivity on two fronts: the perspective from which the alleged bias is viewed is that of a "reasonable person" (which may differ from that of an affected litigant), and the alleged bias must also be reasonable given the circumstances of the conduct.4 A positive finding under this test does not mean that the judge necessarily made a decision based on improper considerations- only that he or she reasonably appeared to be biased in the circumstances.

ONCA's Recent Reasonable Apprehension of Bias Findings

The most recent findings of reasonable apprehension of bias by the Court of Appeal in the civil context helpfully reflect a representative cross-section of the types of judicial conduct that could result in a case being sent back for redetermination.

The first case, Laver v. Swrjeski, 2014 ONCA 294, is an example of how a judge's positive comments about a party or witness can support a finding of reasonable apprehension of bias. In a classic family loan dispute, the applicant's evidence that the amount at issue was a loan directly contradicted the evidence of her daughter's common law husband, a police officer, who said it was a...