The application of the Respondent City of Toronto (the “City”) that a member of the panel of the Divisional Court recuse himself on the basis of a reasonable apprehension of bias was dismissed. The moving parties, by their own conduct, had waived their right to raise the issue of reasonable apprehension of bias and, in addition, the moving parties failed to establish that there was in fact a reasonable apprehension of bias on behalf of the subject judge.

Administrative law – Bias – Judiciary – Judicial review – Reasonable apprehension of bias – test

SOS-Save Our St. Clair Inc. v. Toronto (City), [2005] O.J. No. 4729, Ontario Superior Court of Justice, November 3, 2005, P.T. Matlow, S.E. Greer and E.M. Macdonald JJ.

On October 11, 2005, a panel of the Divisional Court released a unanimous endorsement signed by all three members of the panel allowing the application for judicial review of the Applicant (SOS) and setting aside the decision of the Respondent City of Toronto to proceed with construction of a street car right of way. By Notice of Motion dated October 19, 2005, the moving parties gave notice of a motion in which they sought an Order that one member of the panel recuse himself and that the panel be struck and that the application be remitted for a new hearing before a reconstituted panel of the court on the basis that there was a reasonable apprehension of bias with respect to the subject Judge, given his vociferous opposition to a joint venture between the City and a developer for the construction of a large retail condominium development in the judge’s neighbourhood (the “Thelma Project”).

The court (the reasons for judgment in this issue were given only by the judge in question) held that the law imposed an obligation on a party engaged in litigation who wished to raise an issue of reasonable apprehension of bias to do so at the earliest practicable opportunity. In reviewing the evidence, the court noted that although the City had been in possession of all the pertinent facts since before the commencement of the hearing and, despite the fact that its counsel had, by the evening of the first day of the hearing, considered the implications of those facts, the City did not object to the judge’s participation on the panel. The court held that it was only after receiving the court’s decision on October 11, 2005 that the inquiry into the subject judge’s activities in relation to the Thelma Project began in earnest. On all the evidence, the court was satisfied that neither of the moving parties raised the issue of reasonable apprehension of bias at the earliest practicable opportunity and, as revealed by their own evidence, they acquiesced to his participation in the panel hearing the application for judicial review. A party who believes that grounds exist for alleging an apprehension of bias must raise those grounds as soon as practicable and must not remain silent, relying on such grounds only if the outcome turns out badly.

The court went on to note the requirements for a finding of reasonable apprehension of bias, as follows:

1)   it must be reasonable;

2)   it must be based on serious grounds;

3)   it must be held by (notional) reasonable and right minded persons;

4)   those persons must first apply themselves and obtain the information required by them to make their decision. Their inquiry is fact specific and the facts must be addressed carefully in order in their proper context without shortcuts;

5)   those persons must apply the strong principle of judicial impartiality; and

6)   those persons must then conclude that it is likely that, whether consciously or unconsciously, the judge would not decide the application that was before the panel fairly.

In applying this test, courts have repeatedly emphasized that different considerations govern bias claims made against judicial officers than those made in relation to members of administrative Tribunals. A high threshold must be surpassed in order to establish the existence of a reasonable apprehension of bias on the part of a judge.

On all of the facts disclosed, reasonable persons would say that the moving parties had no reason to fear coming before the judge in question and that they could continue to feel confident that he would fairly judge cases in which they were involved. Accordingly, a reasonable person would say that the moving parties failed to establish any reasonable apprehension of bias on the judge’s part.

The application was therefore dismissed.

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