1. Introduction

This paper will examine in general how courts have interpreted "bias" in connection with the appointment of and services rendered by judges, members of administrative boards and tribunals and arbitrators. It will mainly review court decisions rendered recently in Canada but will also refer briefly to cases rendered recently in the United Kingdom, Australia, New Zealand and South Africa.

2. What is the meaning of bias

The Shorter Oxford Dictionary states that bias is an oblique or slanting line. In connection with bowls, it is the construction or form of the bowl causing it to swerve when rolled - the course in which it runs. While we are not dealing with lines or bowls, the meaning of the word has also developed over the last four centuries to include more relevant meanings "off the straight", "awry" in case of dress, and "bent", "pre

disposition towards", "prejudice" and "unfavourably inclined".

When we speak of the modern bias of a judge, a member of an administrative tribunal or an arbitrator, we would not consider him to be "off the straight" or "bent", although that description might well fit some adjudicators. In general terms, bias is improper prejudice or conduct on the part of an adjudicator.

Lord Thankerton in the English case of Franklin v. Minister of Town & Country Planning [1948] A.C. 87 stated that:

"I would not wish that the use of the word "bias" should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that having to adjudicate between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute."

3. Independence and impartiality

The concept of independence and impartiality appears in S. 11(d) of the Canadian Charter of Rights and Freedoms (Schedule B of the Constitution Act, 1982, Appendices to Revised States of Canada, 1985). This section states in part that:

"11. Any person charged with an offence has the right:

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

The parties who are before an adjudicator or tribunal, whether by choice or otherwise, demand and require the adjudicator to be independent and impartial.

The concepts of "independence" and "impartiality" found in S. 11(d) of the Canadian Charter of Rights and Freedoms, although obviously related, are separate and distinct values or requirements.

Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673

LeDain J., speaking for the Supreme Court of Canada held at page 685:

"Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" … connotes absence of bias, actual or perceived. The word "independent" in S. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government that rests on objective conditions or guarantees."

Again at page 689 of the Valente case, Mr. Justice LeDain states:

"Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without this confidence, the system cannot command the respect and acceptance that are essential to its effective operation."

Although the Valente case involved a question as to whether a judge was independent, the same qualities of impartiality and independence should be exhibited by an arbitral tribunal.

A judge is normally independent and is sworn to administer impartial justice. The authority of a judge, and in fact an adjudicator of any tribunal, greatly depends upon that presumption of impartiality by the parties using the court or arbitrator.

Can there ever be complete impartiality? L’Heureux-Dubé and McLachlin J.J. cited in the Supreme Court of Canada case of R. v. S. (R.D.) [1997] 3 S.C.R. 484 at page 504, quoted the words of Benjamin Cardozo in his work The Nature of the Judicial Process (1921):

"There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs … In this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.

…

Deep below consciousness are other forces, the likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether he [or she] be litigant or judge."

and also at page 504 quoted from the Commentaries on Judicial Conduct (1991) published by the Canadian Judicial Council:

"… the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind."

The same can be said for any arbitrator. It is an open mind and lack of improper prejudice which is most important as a basis for a good arbitrator.

4. Difference between impartiality of a judge and that of an arbitrator or other adjudicator

Should there be a difference between the impartiality of a judge and that of an arbitrator? Despite the fact that maritime arbitrators are generally picked by the parties themselves, and can be known to be inclined to favour the views of owners or charterers, in our view there should be no distinction in maritime arbitration. However, Canadian cases have disagreed in certain areas not directly applicable to maritime arbitration.

For example, a university professor whose performance has been criticized in writing by colleagues can go subsequently through a tenure process adjudicated by those same colleagues, the justification being that the university is a "domestic" setting with mutual consent to the system of peer review.

Paine v. University of Toronto (1981) 131 D.L.R. (3d) 325 (Ontario C.A.)

In 1978, the Honourable Mr. Justice De Grandpré stated in the Supreme Court of Canada case of The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369 @ 395:

"The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statue with an administrative discretion exercised in the light of its experience and that of its technical advisers … The basic principle is of course the same, namely that natural justice must be rendered. But its application must take into consideration the special circumstances of the tribunal."

His support for this statement was taken from Reid, Administrative Law & Practice 1971 @ 220 and Tucker J. in the English case of Russell v. Duke of Norfolk and Others [1949] 1 All E.R. 109.

The Honourable Mr. Justice De Grandpré was one of the three dissenting judges. The five other judges, being the majority of the court, do not appear to have gone so far. According to the majority decision rendered by the Honourable Mr. Justice Laskin, at page 384:

"In my opinion, the board’s function is quasi-judicial or, at least, is a function which it must discharge in accordance with the rules of natural justice, not necessarily the full range of such rules that would apply to a court … but certainly to a degree that would reflect integrity of its proceedings and impartiality in the conduct of those proceedings."

In Szilard v. Szasz [1955] S.C.R. 3, Mr. Justice Rand of the Supreme Court of Canada held at page 4 that:

"From its inception arbitration has been held to be the nature of judicial determination and to entail incidents appropriate to that fact. The arbitrators are to exercise their function not as the arbitrators of the parties nominating them, and a fortiori of one party when they are agreed upon by all, but with as free, independent and impartial minds as the circumstances permit …"

The question would appear to have been put at rest, at least temporarily, in the Supreme Court of Canada decision of Newfoundland Telephone Company Limited v. The Board of Commissioners of Public Utilities [1992] 1 R.C.S. 623. A court consisting of seven judges, by a judgement rendered by Cory J., in a case involving an administrative tribunal, held unanimously at page 636 that:

"Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal … The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased."

And at page 638:

"… there is a great diversity of administrative boards. Those that are primarily adjudicative in their function will be expected to comply with the standard applicable to courts … At the other end of the scale are boards with popularly elected members such as those dealing with planning and developments whose members are municipal councillors. With those boards, the standard will be much more lenient."

In our view, maritime arbitrators fall under the type of boards that are primarily adjudicative in their function (quasi-judicial), and therefore they will be expected to comply with the standard applicable rules of natural justice and impartiality, free from bias so that there is no pre-judgement of the matter to such an extent that any representations to the contrary would be futile.

There also appears to be no such distinction under English law:

(1) AT & T v. Saudi Cable Corporation [2000] 1 Lloyd’s Law Reports 22 (Queen’s Bench);

(2) R. v. Gough [1993] A.C. 646 @ 660, 670-671, 673

This is the reasoning given by the courts. However, in 1986 Alan Redfern and Martin Hunter in their book entitled Law & Practice of International Commercial Arbitration were stating at page 170 that it was not uncommon for a party-nominated arbitrator to be predisposed toward the party who appointed him. Would such an appointment be biased?

5. Canadian Arbitration Acts

The Federal government and most of the provinces of Canada have enacted arbitration acts. The act which relates to maritime shipping matters is a Federal act entitled the Commercial Arbitration Act (R.S.C. 1985, C. 17 (2nd Suppl.). This act and the Commercial Arbitration Code incorporated therein are based upon the model law of the United Nations Commission of International Trade Law dated June 21, 1985.

Article 11 of the Commercial Arbitration Code deals with the appointment of an "independent and impartial arbitrator". Although in Article 11(1) no person shall be precluded by reason of his nationality from being appointed as an arbitrator, Article 11(5) states that the appointment of a third arbitrator in a panel of three "shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties".

Generally, the Canadian provincial arbitration acts follow the model law provisions. For example, under Article 942 of the Quebec Code of Civil Procedure, an arbitrator may be recused because he does not have the qualifications agreed by the parties or because of the many reasons given to recuse a judge found in Articles 234 and 235 of that Code. These reasons include whether the judge is related or allied to one of the parties within the degree of cousin-german; whether he is a party to an action involving a question similar to the one in dispute; if he has given advice on the matter in dispute; if he has acted as an attorney for any of the parties; if he has made known his opinion extra-judicially; if he or his consort is interested in the action; if he is directly interested in an action pending before a court in which any of the parties will be called to sit as a judge; if there is mortal enmity between him and any of the parties; if he is the legal representative or mandatory or the administrator of the property of a party to the suit; if he is a relation to one of the parties, a successor or a donee; if he is a member of an association, partnership or legal person, or is a manager or patron of some order or community which is a party to the suit; if he has any interest in favouring any of the parties, or if he is related or allied to the attorney or counsel or the partner of any of them, either in the direct line, or in the collateral line in the second degree.

The reasons would also, as we shall see, be reasons for which a judge or arbitrator could be removed for bias or impartiality under Canadian common law.

6. Canadian arbitration associations

There are two arbitration associations in Canada which deal with maritime disputes. They are the Association of Maritime Arbitrators of Canada (AMAC) located in Montreal and the Vancouver Maritime Arbitrators Association (VMAA) located in Vancouver. The Rules of these associations vary.

The Rules of the AMAC incorporate the Canadian Commercial Arbitration Code, thereby incorporating Articles 11 and 12 as outlined above relating to the impartiality and independence of arbitrators.

The VMAA Rules do not specifically incorporate the Commercial Arbitration Code. However, under Rule 11, it is stated that when someone is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Rule 12 goes on to state that no person shall serve or continue to serve as an arbitrator if he has any financial or personal interest in the result of the arbitration, he has acquired detailed prior knowledge of the dispute, circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or, in cases where the parties have agreed to qualifications, he does not possess those qualifications.

7. Disclosure

Article 12 of the Commercial Arbitration Code, based on the model law, states that when a person is approached in connection with his possible appointment he shall disclose any circumstances likely to give rise to "justifiable doubts as to his impartiality or independence". It further states that from the time of his appointment and throughout the arbitral proceedings, he shall "without delay disclose any such circumstances to the parties".

8. Consequences of non-disclosure

The consequences of non-disclosure can be fatal to the action or arbitration in progress or completed and would be very costly to all parties if a new trial or arbitration was necessary.

Sawridge Band v. Canada [1997] 3 F.C. 580 (Federal Court of Appeal)

9. Interpretation of bias under Canadian common law

Although no Canadian cases can be found specifically relating to the interpretation of "justifiable doubts" under Article 12 of the Commercial Arbitration Act, with respect to the impartiality of an arbitrator, there has been considerable recent jurisprudence in Canadian common law relating to bias and impartiality of judges, administrative adjudicators and arbitrators. This case law would, we believe, probably apply equally to the interpretation of "justifiable doubts" under the Commercial Arbitration Code and the VMAA Rules.

The first Supreme Court of Canada case to which we will refer relating to impartiality or bias is Szilard v. Szasz [1955] S.C.R. 3. The question in this case was whether one of the arbitrators was disqualified by reason of his business relations with one of the parties. The facts were that the arbitrator and his wife were joint tenants with one of the parties and his wife who had jointly purchased as an investment a property on which there was a joint mortgage. Mr. Justice Rand held at page 4:

"From its inception arbitration has been held to be of the nature of judicial determination and to entail incidents appropriate to that fact. The arbitrators are to exercise their function not as the advocates of the parties nominating them, and a fortiori of one party when they are agreed upon by all, but with as free, independent and impartial minds as the circumstances permit. In particular they must be untrammelled by such influences as to a fair minded person would raise a reasonable doubt of that impersonal attitude which each party is entitled to."

And at pages 6-7:

"These authorities illustrate the nature and degree of business and personal relationships which raise such a doubt of impartiality as enables a party to an arbitration to challenge the tribunal set up. It is the probability or the reasoned suspicion of biased appraisal and judgment, unintended though it may be, that defeats the adjudication at its threshold. Each party, acting reasonably, is entitled to a sustained confidence in the independence of mind of those who are to sit in judgement on him and his affairs.

Especially so is this the case where he has agreed to the person selected. The Court of Appeal took the view that ‘from that circumstance alone’ (the joint ownership of the property) ‘it is not to be inferred that the arbitrator would not act in an entirely impartial manner, and there is no evidence before us that he did not in fact act in an impartial manner.’ But as the facts show, it is not merely a case of joint ownership. Nor is it that we must be able to infer that the arbitrator ‘would not act in an entirely impartial manner’; it is sufficient if there is the basis for a reasonable apprehension of so acting. I think it most probable, if not indubitable, that had the facts been disclosed to Szilard, he would have refused, and justifiably, to accept Sommer."

The more recent Supreme Court decisions have quoted the statement in this case that "it is sufficient if there is the basis for a reasonable apprehension of so doing", which in turn was based, in part, upon holdings in certain English cases such as Kemp v. Rose [1858] 1 Giff. 258 @ 264; Walter v. Frobisher [1801] 6 Ves. Jr. 70; Eckersley v. The Mersey Docks and Harbour Board [1894] 2 Q.B. 667; In Re Haig and the L. & N. and G.W. Ry Co. [1896] 1 Q.B. 649; and other Canadian cases rendered prior to 1955.

The Supreme Court of Canada dealt with the subject again in 1978 in the cases of The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369.

This case involved an administrative tribunal where one of the members of the board had been involved previously as a member of a group which had studied the matters which subsequently gave rise to the application of competing parties to obtain the right to build a pipe line.

Chief Justice Laskin for the majority held at page 385 that "the only issue here is whether the principle of reasonable apprehension or reasonable likelihood of bias" applied to the board.

The majority held the member of the board must be disqualified based on the test of reasonable apprehension of bias, citing the cases of Ghirardosi v. Minister of Highways for British Columbia [1966] S.C.R. 367; Blanchette v. C.I.S. Ltd. [1973] S.C.R. 833; and Szilard v. Szasz [1955] S.C.R. 3.

The dissenting member of the court (De Grandpré J., cited earlier) judged the case based on the same law, but he considered that the basis for determining whether or not there was an apprehension of bias should be less for a member of a public policy-orientated board than for a judge. He held the board was not a quasi

judicial body and that therefore the board member was not disqualified. He held at page 394 that:

"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 … what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude."

He then went on to state that the grounds for apprehension of bias must be "substantial".

The next main Supreme Court of Canada case involved a challenge to the independence of a provincial court. In Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673 @ 684. Mr. Justice LeDain, writing the decision of a unanimous court, adopted the reasonable apprehension of bias test set forth by De Grandpré J. in the case of The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369 and Section 11(d) of the Charter of Rights and Freedoms. Although the main issue dealt with independence rather than impartiality, the reasonable apprehension doctrine was not overruled or altered.

In 1988 a judge of the trial division of the Newfoundland Supreme Court, in Sanwa Bank California v. Quebec North Shore & Labrador Railway Co. Ltd. (1988) 48 D.L.R. (4th) 360, was required to rule on the qualifications of a panel of independent appraisers appointed under an equipment lease with an option to purchase to determine the sound market value of the equipment for the purpose of sale. One of the appraisers was a lessee then currently in possession of another used-equipment lease from a used-equipment dealer. Although appointed as appraisers, the court considered them to be arbitrators. The judge (page 367) held that the principle on which he must make a decision was whether there was a "reasonable apprehension of bias arises where there exists a reasonable probability that a panel member may act in an entirely impartial manner". No evidence of actual bias need be established. In support of his holding, he relied on the case The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369 in which it was stated that a reasonable apprehension of bias arises where there exists "a reasonable probability that the panel member may act in an entirely impartial manner". The court also relied upon R. v. Ontario Labour Relations Board, Exp. Hall (1963) 39 D.L.R. (2d) 113 (Ontario H.C.) where Chief Justice McRuer, on the question on whether or not there was a "real likelihood of bias", held at pages 118

119 that:

"’Real likelihood of bias’ was not to be determined by an attempt to analyse the mind or character of … but by considering objectively whether or not a reasonable man in all the circumstances might suppose that there would be an improper interference, conscious or unconscious, with the course of justice …"

In 1992, the Supreme Court of Canada in Newfoundland Telephone Company Limited v. The Board of Commissioners of Public Utilities [1992] 1 R.C.S. 623 again was required to determine whether a member of an administrative utility board should be disqualified because of an apprehension of bias. The member in question was a self-appointed champion of consumer’s rights and made public statements relating to the issue during the hearings of the board. The court held that the member should be disqualified. Cory J. of the court followed the reasonable apprehension of bias test, relying upon the Supreme Court cases of Szilard v. Szasz [1955] S.C.R. 3 and The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369.

Mr. Justice Cory, at pages 637-638, also referred to another Supreme Court case of Old St. Boniface Residents Association Inc. v. Winnipeg (City) [1990] 3 S.C.R. 1170, which set aside a planning decision made by elected municipal councillors, one of whom had previously been personally involved for interests in the planning issues and had not disclosed that involvement prior to the decision. Mr. Justice Cory held that there was a great diversity of administrative boards. Those members of boards with adjudicative functions must be judged more strictly with the test than those members of a planning and development board whose members are elected municipal councillors. Nevertheless, Mr. Justice Cory, for the court, held that under the circumstances of the case, there was a reasonable apprehension of bias, and the decision of the board was declared void.

In 1995, a decision from the trial division of the Ontario Court in Re:  Turpin and Wilson (1995) 130 D.L.R. (4th) 158 held that a person appointed as an arbitrator relating to a property dispute in separation proceedings between a man and his wife could not be the lawyer who acted for the husband in connection with his previous marriage. The related question to be answered was whether the circumstances raised a reasonable apprehension of bias. Reference was made to the Newfoundland Telephone case.

In 1997, the Supreme Court of Canada considered in R. v. S. (R.D.) [1997] 3 S.C.R. 484 whether comments of a Youth Court judge giving in oral reasons references to police and racism in general was a reasonable apprehension of bias. The four dissenting judges held that the test for finding a reasonable apprehension of bias had been interchangeably interpreted as a "real danger of bias" or "a real likelihood of bias", a "reasonable suspicion of bias" or in other ways. The judge rendering the decision of the minority referred to the judgement of Lord Denning in Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 Q.B. 577 who had held at page 599:

"In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was a impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg v. Huggins; and Rex v. Sunderland Justices, per Vaughan Williams L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justice, ex parte Pearce, and Reg. v. Nailsworth Licensing Justices, ex parte Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’"

Reference was also made in the R. v. S. (R.D.) case to the case of The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369 and the English case of The King v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256.

The five majority judges all agreed that the appeal should be allowed, but the reasons given were varied.

L’Heureux-Dubé and McLachlin J.J. referred to the test of reasonable apprehension of bias as set out by De Grandpré J. in the case of The Committee for Justice and Liberty v. The National Energy Board and indicated that the test had been endorsed by the Supreme Court of Canada in Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673; R. v. Lippé [1991] 2 S.C.R. 114; and Ruffo v. Conseil de la Magistrature [1995] 4 S.C.R. 267. However, these two judges stated that the apprehension must be "substantial".

In order to determine who is a "reasonable and right-minded" person applying themselves to the question, the majority judges held that there must be a judicial inquiry into the factual, social and psychological context within which the litigation arises. They stated that a "conscious, contextual inquiry has become an accepted step toward judicial impartiality".

They went on to hold that an informed and right-minded person must be a member of the community, a community which, in Canada, supports the fundamental principles entrenched in the constitution by the Canadian Charter of Rights and Freedoms. The reasonable person is not only a member of the Canadian community but also, more specifically, a member of the local community in which the case at issue arose and who is aware of local issues gained from the experience of having lived in that community.

Cory J., on behalf of himself and two other judges, held that the issue to be resolved was whether the remarks of the trial judge gave "rise to a reasonable apprehension that she was not impartial as between the Crown and the accused" and quoted in support Newfoundland Telephone Company Limited v. The Board of Commissioners of Public Utilities [1992] 1 R.C.S. 623 and two other Supreme Court cases of R. v. Curragh Inc. [1997] 1 S.C.R. 537 and Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631 @ 660-661.

Cory J. reaffirmed that actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. In this context, he quoted Lord Hewart C.J. in The King v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 @ 259 that "(it) is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

Cory J. also held that the test which had been adopted by the Supreme Court of Canada for two decades contained a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must be reasonable in the circumstances of the case. "The reasonable person must be an informed person with knowledge of all the relevant circumstances … and be aware of the social reality that forms the background to a particular case, such as social awareness …"

He held that a submission by the attorneys of one of the parties that the test requires a demonstration of "real likelihood" of bias, i.e., bias being probably, rather than a "mere suspicion", was unnecessary in the light of the test set out by De Grandpré J. in The Committee for Justice and Liberty. Nevertheless, he agreed with two of the minority judges, L’Heureux-Dubé and McLachlin J.J., that various English and Canadian cases had supported their contention that the bias must be substantial and that a real likelihood of bias must be demonstrated, not a "mere suspicion". Nevertheless, he stated that:

"Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed 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."

Of course, the onus of demonstrating bias lies with the person who is alleging its existence.

An example where general remarks were very serious and had enormous consequences can be found in Sawridge Band v. Canada [1997] 3 F.C. 580 (Federal Court of Appeal) where the Federal Court of Appeal ordered a whole new trial because during the previous trial on issues as to whether certain parts of the Indian Act were contrary to the Charter of Rights and Freedoms, the judge said and conveyed the impression that he had a very negative view about aboriginal rights and claims for special status for all or some aboriginal peoples. The judge used epithets such as "racism", "apartheid" and compared restraints on intermarriage to certain Nazi laws. The consequence was that the Federal Court of Appeal refused to rule on the substantive grounds of appeal other than the complaints of reasonable apprehension of bias and refused to even discuss the grounds for the trial judge’s decision dismissing the Plaintiff’s action (which took up some 150 pages in the law reports - see [1996] 1 F.C. 3 - delivered after a 79-day trial).

In 1999, a motion was made to the Supreme Court of Canada for one of its own judges, Mr. Justice Bastarach, to recuse himself on the grounds that during the time he was practicing law, he was a "leading champion" of language rights for French-speaking minority populations in Canada’s maritime provinces. The case before the court involved the question as to whether minority language education rights included the right to instruction in an educational facility located in a specific area where numbers warranted provision of minority language instruction. Mr. Justice Bastarach had no prior involvement with either of the parties before the courts, and, unlike the utility board member in the Newfoundland Telephone Company Limited case, cited above, had made no statements on the very conflict between those parties, but he had fought similar cases in the past on behalf of various French-speaking minority groups.

Surprisingly, Mr. Justice Bastarach himself gave the judgement dismissing the motion. The reasons for the dismissal are reported in Arsenault-Cameron v. Prince Edward Island [1999] 3 S.C.R. 851. He referred to R. v. S. (R.D.) [1997] 3 S.C.R. 484 and Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673, both cited above, and applied the test of "real likelihood or probability of bias" that would cause a reasonable person who understands the complex and contextual issues to believe that the particular judge had prejudged the issues of the case.

Finally, in 2000, the Ontario Court of Appeal in Benedict v. Her Majesty the Queen in Right of Ontario (2000) 51 O.R. (3d) 147 referred to with approval the case of The Committee for Justice and Liberty v. The National Energy Board. In this case, the Defendant alleged that the judge of a Public Service Grievance Board, who rendered a decision with respect to whether or not the board had jurisdiction, was a Plaintiff in an on-going action against the Crown, arising from her employment as a lawyer by the Ontario Human Rights Commission before her appointment to the bench, in which she was seeking damages for wrongful dismissal. No disclosures had been made. The Court of Appeal held that there was a reasonable apprehension of bias.

The test applied was that described by L’Heureux-Dubé, McLachlin and Cory J.J. in R. v. S. (R.D.) [1997] 3 S.C.R. 484, which followed the definition of De Grandpré J. in The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369.

The court also referred to and relied upon the English cases of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All E.R. 577 or 2 W.L.R. 272 and Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1968] 3 All E.R. 304, [1969] 1 Q.B. 577. It is interesting to note that the English case of R. v. Gough [1993] A.C. 646, and the test outlined therein, have never been relied upon or referred to in any the Canadian cases mentioned in this paper.

10. Conclusion

It would appear that at least five conclusions can be derived from the above cases:

(1) The test for determining whether there is bias which would disqualify someone from hearing a case or arbitration has been constant since 1954 and more specifically described by De Grandpré J. in The Commission for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369, which is that the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons in the community in which the matter occurred, applying themselves to the question and obtaining thereon the required information.

(2) With some reservation, there is no specific distinction between "reasonable apprehension of bias", "reasonable suspicion of bias" and "real likelihood of bias". The apprehension must, however, be "substantial".

(3) The test will be applied to all persons acting in quasi-judicial functions, such as judges, board members and arbitrators. Nevertheless, the courts have stated that they will consider and apply the test of apprehension of bias more strictly in the case of a judge or a person appointed in a quasi-judicial function than in the case of a member of a publicly-appointed board.

(4) Canadian courts will look to all the circumstances of the case, including the social and psychological background of the person and community involved.

(5) Canadian courts have not followed the test described in R. v. Gough [1993] A.C. 646, which in part has stated that there must be a "real danger" of bias. That case, as we shall see later in this paper, also rejected the test that the court should look at the matter through the eyes of a reasonable man.

11. English law

The leading case in England is R. v. Gough [1993] A.C. 646. In that case, an accused was convicted and sentenced. The brother of the accused who was present in court was the next-door neighbour of one of the jurors, who claimed he only recognized the accused after sentencing.

The test applied was whether, in all the circumstances of the case, there appeared to be a real danger of bias concerning the member of the tribunal in question, i.e., a real danger that there may not have been a fair trial. The court followed the test outlined in Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1969] 1 Q.B. 577 which held that an appearance of bias was sufficient, even though no bias was proven. Moreover, it agreed that the test was whether a reasonable and fair-minded person sitting in the court and knowing all the circumstances of the relevant facts would have a reasonable suspicion that a fair trial of the Defendant was not possible.

The court held that the test of a reasonable suspicious person would not be followed and stated that there was no difference between the test of a "real likelihood" of bias and a "real danger" of bias. The court rejected the test that it should look at the matter through the eyes of a reasonable man "because the court in cases such as these personifies the reasonable man". The judgement appears to say that the court was in a much better position to determine the relevant circumstances from available evidence, knowledge which would not necessarily be available to an observer in court at the relevant time.

Goff J. at page 670 outlined the test as follows:

"… Having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …"

R. v. Gough was followed in R. v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All E.R. 139. In this case, where a coroner refused to reopen an inquest, it was held at page 153 that:

"All the applicants need to show is in the first instance an appearance of bias and then on an examination of all the facts a real possibility that the coroner may unconsciously have felt resentful towards them in a way as to have influenced his approach to their case for a resumption."

In R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [1999] 2 W.L.R. 272, the issue was whether one of the House of Lord judges was to be considered biased because he and his wife were involved with Amnesty International, a human rights body, who had intervened in the original case against Pinochet. Holding that there was apparent bias, Lord Browne-Wilkinson of the House of Lords stated that:

"The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial."

As the court was not required to discuss the second implication, there was no real discussion about the test of a real danger of bias outlined in R. v. Gough.

The last English case we would like to discuss briefly is AT & T Corporation v. Saudi Cable Company [2000] 1 Lloyds Law Reports 22. This case involved a motion by one of the two parties to an arbitration to disqualify a lawyer/arbitrator on an international commercial arbitration panel on the grounds that he was a non-executive director and shareholder of a company which was a competitor and rival bidder of the work which was obtained by one of the parties. The arbitrator in question claimed that as a result of a typographical error in his curriculum vitae, no disclosure had been made. Mr. Justice Longmore of the Commercial Court held that the application failed.

The Applicant submitted to the court that the appropriate test to apply was an objectively reasonable apprehension of bias rather than the test of real danger of bias laid down in R. v. Gough. The Respondent submitted that the correct test for apparent bias was that the court, in possession of the full facts, should determine whether there was a real danger of bias.

The court accepted the Respondent’s submission, stating that:

"The present state of English law in relation to apparent or assumed bias, as it applies to Judges and inferior tribunals, is that there is an automatic disqualification for any Judge who has a direct pecuniary interest (such as owning shares) in one of the parties or is otherwise so closely connected with a party that he can truly be said to be judge in his own cause; apart from that, if an allegation of apparent or unconscious bias is made, it is for the Court to determine whether there is a real danger of bias in the sense that the Judge might have unfairly regarded with favour or disfavour the case of a party under consideration by him or, in other words, might be pre-disposed or prejudiced against one party’s case for reasons unconnected with the merits of the issue. These propositions are settled by R. v. Gough [1993] A.C. 646 at p. 670 per Lord Goff of Chievely, R. v. Inner West London Counsel, ex parte Dallaglio [1994] 4 All E.R. 139 at p. 151 per Lord Justice Simon Brown and R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [1999] 2 W.L.R. 272 at pp. 281-282 per Lord Browne-Wilkinson.

It also emerges from the judgments in the Dallaglio case that the use of the phrase "apparent" bias is inapt; the famous dictum of Lord Hewart C.J. in R. v. Sussex Justice, ex parte McCarthy [1924] 1 K.B. 256 at p. 259 that justice should not only be done but should manifestly and undoubtedly be seen to be done is, of course, good law insofar as the appearance of bias is such as to show a real danger of bias, see per Sir Thomas Bingham M.R. in ex parte Dallaglio at p. 162. But it is for the Court to which application is made to decide, on all the evidence then before it, whether such real danger existed at that time when the impugned decision was taken. Unconscious bias is a more suitable phrase than apparent bias and as Lord Justice Simon Brown said at p. 152:

… by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias, but rather with establishing the possibility that there was actual although unconscious bias."

The difference between "apparent" and "unconscious" bias was not clarified. It is clear that a "real danger" might be equivalent to "actual" bias, even if unconscious.

Thus, under English law, it would appear that it has become much more difficult to establish bias as there appears to have been a trend to follow the reasoning in R. v. Gough.

12. South African law

We refer only to one recent case of President of the Republic of South Africa v. South African Rugby Football Union [1999] 4 S.A. 147. In this case, one of the parties to a dispute wished a recusal of certain judges of the Appeal Court on the grounds that some of them had been members of the political party of one of the other parties to the dispute and that the President of the court had a long-outstanding relationship of advocacy and client with that political party. The application for disqualification was refused. The court held in part at page 177 that:

"The correct approach to the application … is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to hear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of the counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience."

Reference in that case was made to the Canadian case of R. v. S. (R.D.) and the dissenting judgement of De Grandpré J. in The Committee for Justice and Liberty v. The National Energy Board.

It would appear that the South African courts have not followed the test described in R. v. Gough. The application was refused.

13. Australian law

We refer to a recent case of Clenae Pty Ltd. v. Australia & New Zealand Banking Group 2000 HCA 63 [176 ALR 644] where the Australian High Court was required to determine whether to allow an application for disqualification. The facts were that a bank sued a borrower of a loan from that bank. The trial judge heard the case and took it under advisement. While on advisement, the judge inherited 2,400 shares of the bank involved in the dispute. The judge did not disclose his inheritance subsequently. The judge gave judgement in favour of the bank. The borrower alleged bias. Mr. Justice Gleeson held at page 647 that:

"A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide … the question is one of possibility (real and not remote) not probability."

He went on to say at page 652 that Australian law was different from English law and that:

"… an issue such as that which arose in Pinochet (No. 2) would be resolved by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial view of the resolution of the question the judge was required to resolve."

Mr. Justice Gleeson went on to state at page 657 that Australia did not accept that "there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding."

14. New Zealand law

In Auckland Casino Ltd. v. Casino Control Authority [1995] 1 NZLR 142, the New Zealand Court of Appeal addressed the question of bias. In this case, the facts were that the applicant who requested disqualification was refused a licence by the Casino Control Authority. The applicant appealed the decision on the grounds of bias of members of the Authority who held shares in a company which owned 80 percent of the shares of the successful applicant for a licence. One member was a member of a law firm which acted for the Auckland City Council who had allowed the competitor to buy the site of the casino.

The court held that even if there was bias, the applicant had waived its right to object as no objection had been taken in time, although aware of the probable bias. Nevertheless, obiter the court held that there would probably have been bias with members of the Authority holding 80 percent of the shares of the successful bidder. Mr. Justice Cooke of the Court of Appeal in Wellington stated at page 149 that there was little difference between tests of "real danger" and real likelihood in the sense of real possibility. He stated:

"But once it is granted that the hypothetical reasonable observer must be informed, so that as indicated by the House of Lords in Gough at pp. 664 and 673, R. v. Sussex Justices, ex parte McMathy (sic) [1924] 1 K.B. 256 is a dubious authority, the distinction becomes very thin. If a reasonable person knowing all the material facts would not consider that there was a real danger of bias, it would seem strained to say that nevertheless he or she would reasonably suspect bias. One must query whether the law should countenance such refinements. In the result we accept the real danger test as satisfactory."

The court therefore decided, contrary to courts in Australia and Canada, to follow the test outlined in R. v. Gough.

15. Challenge to qualification

Under most jurisdictions, there is a time limit within which a party has a right to challenge the qualifications of an arbitrator. If the time limit expires, then the party who wishes to make the challenge will be considered as having waived its right to challenge.

For example, under Article 13 of the Canadian Commercial Arbitration Code (model law), unless there is an agreement between the parties on a procedure to challenge an arbitrator, a person who wishes to challenge an arbitrator must do so within 15 days after becoming aware of the constitution of the arbitral board or after becoming aware of any circumstances referred to in Article 12, i.e., circumstances likely to give rise to justifiable doubts as to his impartiality or impendence or if he does not possess the qualifications agreed to by the parties. The procedure of making a challenge is outlined in Article 13.

16. Differences between Canadian and English law

There are apparent differences between the reasoning of the Canadian, Australian and South African courts and that of the English courts. The differences are:

(a) Under English law, there must be a "real danger" of bias, while under Canadian law, there must only be a "reasonable apprehension of bias". However, under Canadian law, the apprehension must be "substantial". Is there a real difference?

(b) The reasonable man in English law through whose eyes the court must look is one who is present in court and who has heard and understood the evidence. Under Canadian law, there must be a judicial inquiry into the factual, social and psychological context within which the litigation arises and that he must be an informed and right-minded member of the community in which the matter occurred.

(c) Under English law, there is a two-tiered system of determining bias. There is an automatic disqualification if the adjudicator is a party to the litigation or has a financial or proprietary interest in the outcome of the dispute. Where an adjudicator is not a party to a suit and has no financial interest, then the court must decide whether his conduct or behaviour may give rise to a real danger that he is not impartial.

There is no such distinction under Canadian law.

(d) Under English law, there appears to be a distinction between "apparent" and "unconscious" bias which does not appear to exist under Canadian law.

Nevertheless, when all comparisons are made, it would still appear that justice is normally done by the courts whatever principles are applied.

17. Recommendations

In view of the expense and apparently frequent legal challenges to the appointment and decisions of judges, adjudicators and arbitrators, and the cost and delay to the parties arising from any such disputes, it is highly recommended, as per Article 12 of the Commercial Arbitration Code, that arbitrators, when approached in connection with their possible appointment as arbitrators, disclose in writing any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. Moreover, the arbitrator should also perhaps produce to both parties a curriculum vitae outlining his qualifications to indicate that he possesses the qualifications required by the parties.

Finally, an arbitrator, once appointed, should refrain from making any remarks or giving any orders which would indicate to the parties that he had made up his mind or that an unfair hearing was in progress. Cedric Barclay once said, "silence is an arbitrator’s mother tongue". However apt the phrase may be, it is not appropriate where proper disclosure should be made.

Yours faithfully,

________________________

Trevor H. Bishop

Brisset Bishop s.e.n.c.

Montreal, Canada

July 2001

LIST OF JURISPRUDENCE

Arsenault-Cameron v. Prince Edward Island [1999] 3 S.C.R. 851

AT & T Corporation v. Saudi Cable Company [2000] 1 Lloyds Law Reports 22

Auckland Casino Ltd. v. Casino Control Authority [1995] 1 NZLR 142

Benedict v. Her Majesty the Queen in Right of Ontario (2000) 51 O.R. (3d) 147

Blanchette v. C.I.S. Ltd. [1973] S.C.R. 833

Clenae Pty Ltd. v. Australia & New Zealand Banking Group 2000 HCA 63 [176 ALR 644]

Eckersley v. The Mersey Docks and Harbour Board [1894] 2 Q.B. 667

Franklin v. Minister of Town & Country Planning [1948] A.C. 87

Ghirardosi v. Minister of Highways for British Columbia [1966] S.C.R. 367

Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631

In Re Haig and the L. & N. and G.W. Ry Co. [1896] 1 Q.B. 649

Kemp v. Rose [1858] 1 Giff. 258

Metropolitan Properties Co. (FGC) Ltd. v. Lannon [1968] 3 All E.R. 304, [1969] 1 Q.B. 577

Newfoundland Telephone Company Limited v. The Board of Commissioners of Public Utilities [1992] 1 R.C.S. 623

Old St. Boniface Residents Association Inc. v. Winnipeg (City) [1990] 3 S.C.R. 1170

Paine v. University of Toronto (1981) 131 D.L.R. (3d) 325

President of the Republic of South Africa v. South African Rugby Football Union [1999] 4 S.A. 147

R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All E.R. 577, [1999] 2 W.L.R. 272

R. v. Curragh Inc. [1997] 1 S.C.R. 537

R. v. Gough [1993] A.C. 646

R. v. Inner West London Coroner, ex parte Dallaglio [1994] 4 All E.R. 139

R. v. Lippé [1991] 2 S.C.R. 114

R. v. Ontario Labour Relations Board, Exp. Hall (1963) 39 D.L.R. (2d) 113

R. v. S. (R.D.) [1997] 3 S.C.R. 484

Re: Turpin and Wilson (1995) 130 D.L.R. (4th) 158

Ruffo v. Conseil de la Magistrature [1995] 4 S.C.R. 267

Russell v. Duke of Norfolk and Others [1949] 1 All E.R. 109

Sanwa Bank California v. Quebec North Shore & Labrador Railway Co. Ltd. (1988) 48 D.L.R. (4th) 360

Sawridge Band v. Canada [1997] 3 F.C. 580 (Federal Court of Appeal)

Szilard v. Szasz [1955] S.C.R. 3

The Committee for Justice and Liberty v. The National Energy Board [1978] 1 S.C.R. 369

The King v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 @ 259

Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673

Walter v. Frobisher [1801] 6 Ves. Jr. 70