Expression of preliminary findings by an administrative body does not necessarily indicate a reasonable apprehension of bias

Administrative law – Decisions reviewed – Election commissioner – Judicial review – Appeals – Procedural requirements and fairness – Compliance with legislation – Bias

Rebel News Network Ltd. v. Alberta (Election Commissioner), [2021] A.J. No. 1541, 2021 ABCA 376, Alberta Court of Appeal, November 19, 2021, F.L. Schutz, M.G. Crighton and J. Strekaf JJ.A.

This was an appeal by the plaintiff, Rebel News Network, from a decision dismissing its application for judicial review of a decision of the respondent election commissioner. The conduct in question was the appellant had engaged in political advertising costing in excess of $1,000 when they were not registered as a third-party advertiser in violation of the Election Finances and contributions Disclosure Act (the “Act”). The advertising that was subject of the dispute was a billboard that was critical of Alberta’s education minister at the time.

When the Commissioner was made aware of the potential violation, they wrote to Rebel providing notice that the potential violation was being investigated. Rebel requested additional information and about a month later the Commissioner sent Rebel a letter with the re line as “Notice of Adverse Finding and Proposed Penalty” (the “Notice”). The Notice outlined that Rebel appeared to have contravened the Act and invited Rebel to respond.

Rebel then wrote to the Commissioner and argued that the Commissioner had made his decision without giving Rebel an opportunity to respond. The Commissioner wrote to Rebel on two subsequent occasions advising that no final decision had been reached and invited Rebel’s response. Rebel declined to provide a response. The Commissioner then issued a decision finding that Rebel had contravened the provisions of the Act that required third parties to be registered before placing political ads costing more than $1,000. The penalty was a letter of reprimand.

Rebel applied for judicial review alleging that the Commissioner had prejudged the matter prior to Rebel being given the opportunity to respond and failed to act in a procedurally fair manner. The application for judicial review was dismissed. The judicial review judge applied the “closed mind” test, which analyses whether the decision maker has prejudged the matter and is no longer capable of persuasion. The judicial review judge determined that the Commissioner did not prejudge the contravention issue and had given Rebel the opportunity to respond as required by the Act.

On appeal, at issue was whether the judicial review judge applied the incorrect legal test and erred in concluding that the required standard of procedural fairness was met. Rebel argued that the decision should be quashed.

On appeal it was found that the expression of a preliminary opinion on what the evidence shows at the investigative stage does not necessarily amount to a reasonable apprehension of bias. It was found that the Notice was not intended to be a final decision but was in compliance with the Act’s requirement to provide notice of the substance of the allegations against Rebel and to request Rebel’s response.

The judicial review judge’s finding was upheld that no reasonable reader would read the Notice as reflecting a final decision or a closed mind to Rebel’s potential submission.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Deanna C. Froese at dfroese@harpergrey.com.

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