The President of the Progressive Conservative Party of Manitoba (“Fletcher”) was unsuccessful on appeal from a judicial review upholding the decision of the Automobile Injury Compensation Appeal Commission that had affirmed Manitoba Public Insurance Corporation’s (“MPI”) denial of his claim for additional attendant care costs that he would incur as the president of the Party

Administrative law – Judicial review – Bias

Fletcher v. Manitoba Public Insurance Corp., [2004] M.J. No 443, Manitoba Court of Appeal, December 15, 2004, Huband, Kroft and Hamilton JJ. A.

Fletcher alleged that a reasonable apprehension of bias existed because the chairperson made political contributions to the New Democratic Party. Fletcher argued that the chairperson, a Ms. Tavares, was a partisan of another political party who should have recused herself from the panel or disclosed the fact of her contributions to enable the parties to object (or not) to her participation. Fletcher contended that her failure to do so tainted the panel with a reasonable apprehension of bias and rendered the panel’s decision a nullity.

The definition of bias, and the test for reasonable apprehension of bias were expressed by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259.

The Court of Appeal held that the high threshold required for a finding of reasonable apprehension of bias had not been met:

The fundamental nature of the issue before the appeal panel was about benefits under the Act. It was not about politics.

While political donations may be made for any number of reasons, I assume for this analysis that these donations demonstrate that Ms. Tavares supports the New Democratic Party. Having said that, a reasonable and informed person would know that Ms. Tavares is appointed by the Lieutenant Governor in Council. Viewing these appointments realistically and practically, a reasonable and informed person would accept that some, if not many, of the persons appointed support the political party which appointed them and that they may show that support by making donations to that party. Nonetheless, this support cannot be assumed to detract from their integrity to perform their duties as commissioners pursuant to their oath of office.

The appeal was dismissed.

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