Courts and tribunals in Canada are to be held to the highest standards of impartiality. This is not just a matter of decision makers subjectively acting fairly and impartially (i.e. actually being fair and impartial) but just as importantly a matter of fairness and impartiality being demonstrated to the public. As articulated by the English Chief Justice Lord Hewitt: “[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” A hearing will be unfair, and justice will not be seen to be done, if the words or actions of the decision maker give rise to a “reasonable apprehension of bias” to the “informed and reasonable observer”. Decision makers must be fair and impartial and must also appear to be fair and impartial. If there is an appearance of bias, then the decision maker is subject to review.
Impartiality has been described by the Supreme Court of Canada as “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.” Bias is the opposite: “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to the particular issues.” The words or actions of a decision maker will give rise to a reasonable apprehension of bias where “an informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that the decision maker was not impartial. That “informed person” must have knowledge of all relevant circumstances, including “the social reality that forms the background to a particular case”, and must have more than a “mere suspicion” of impartiality. The threshold for finding actual or perceived bias is high because it calls into a question an element of judicial integrity.
Reasonable apprehension of bias became an issue recently in a matter before the Normal Farm Practices Protection Board (the “NFPPB”). The NFPPB is a tribunal with the power “to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice” and “to make the necessary inquiries and orders to ensure compliance with its decisions.” A person directly affected by a disturbance from an agricultural operation can apply to the Board for a determination “as to whether the disturbance results from a normal farm practice.” Farmers directly affected by a municipal by-law or “persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it” can apply to the Board for a determination “as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.”
Following a seven-day hearing in 2022, the NFPPB dismissed an application made by cottage owners who complained of nuisances caused by a neighbouring farm operation. The Applicants alleged improper storage of manure, an increase in manure odour and flies as a result of the farm’s damage to and/or removal of hedgerows and other vegetative buffers, nuisance caused by manure laden dust, and odour and flies caused by deadstock disposal. The respondent farm had been operating in the same location for 50 years and the NFPPB noted that the cow calf farm was operated using practices similar to other cow calf operations. The NFPPB dismissed the application on the basis that the Applicants did not show “substantial interference and discomfort which would not be tolerated by the ordinary occupier in their location” and did not demonstrate “unreasonable interference with the use and enjoyment of the Applicants’ land.”
The respondent farm applied for a costs award against the unsuccessful applicants, arguing that the application was “frivolous and/or vexatious”. The NFPPB agreed that the application was frivolous because, while the Applicants alleged that the respondent farm had altered its practices intentionally to aggrieve the Applicants, the NFPPB determined that the respondent farm’s operations were “normal farm practices”. The NFPPB also took note of the fact that the Applicants were pursuing other legal actions against the respondent farm outside of the NFPPB process, that the Applicants had raised a multitude of issues without presenting evidence on particular issues, and that the Applicants had through their conduct throughout the proceedings attempted to malign and vilify the respondent farm. In the end, the NFPPB ordered that the Applicants pay the respondent farm $40,000 in costs.
The Applicants requested a review of the decision on costs, both on the issue of the amount of the costs awarded and on the issue of reasonable apprehension of bias. On the latter issue, the Applicants raised a concern about the appearance of a conflict of interest on the part of one of the three members of the NFPPB panel who heard the application and delivered the decision on costs. It turned out that one of the panel members had sat as an adjudicator on a panel of the Agriculture, Food and Rural Affairs Appeal Tribunal (“AFRAAT”) that also included as a member a senior partner in the law firm representing the respondent farm in the NFPPB proceeding. That AFRAAT proceeding was taking place at or around the very same time as the NFPPB hearing in 2022.
The NFPPB Vice-Chair considering the review request determined that an appearance of bias did result from the fact that one of the NFPPB panelists had sat on another tribunal panel with a lawyer who indirectly was the lawyer for the respondent farm (that is, the respondent farm was technically a client of the lawyer’s law firm and, therefore, of the lawyer himself). The Vice-Chair concluded: “When viewed from that perspective, an informed reasonable person viewing the matter realistically and practically, would conclude that the decision maker whether consciously or unconsciously would not decide fairly. There is the appearance of bias at the original hearing that would continue to exist for the subsequent costs decision.” The Vice-Chair ordered a re-hearing on costs before a full panel of the NFPPB.
Read the decision at: 2023 ONNFPPB 3 (CanLII).
