This month, Ecojustice filed an
application for judicial review of the Vancouver Fraser
Port Authority's decision to permit a coal transfer facility.
They claim that the Port Authority failed to consider some
environmental effects, including climate change, and that the
decision of the Port and its officers and staff was affected
Bias is a serious allegation. As our Supreme Court said
in Roberts v. R, 2003 SCC 45: "public
confidence in our legal system is rooted in the fundamental belief
that those who adjudicate in law must always do so without bias or
prejudice and must be perceived to do so." Without fair,
impartial decision-makers, our legal system cannot function.
Perhaps the Port Authority should not have permitted the coal
facility, but was it "biased"?
In assessing a claim of bias, the court will ask whether there
is a "reasonable apprehension of bias" – i.e. what
would an informed person conclude, viewing the matter
realistically and practically – and having thought the matter
through? Would this person think that it is more likely than not
that the decision-maker, whether consciously or unconsciously, was
affected by a conflicting interest of its own?
The alleged evidence of bias in this case include:
Comments from Port Authority officers and staff indicating that
they had predetermined that the permit would be issued;
The officers making a decision whether to issue the permit had a
financial incentive to issue an approval because there is a link
between the economic performance of the Port Authority and the
executive compensation program;
While the project was under review, the Port Authority was
affiliated with organizations promoting coal and the coal industry;
While the project was under review, the Port Authority
collaborated with the project proponents regarding how the project
would be portrayed to the public.
The federal government's drive to make ports and
similar facilities economically self sufficient creates a built in
conflict between port authorities' obligation to see the
port make money and their responsibility to protect the public
interest, including the natural environment. In
such conflicts, whether private or public, money often wins.
Is this why the coal permit was authorized? If so, does
it count as legal "bias"? And, if it does, what
governance structures for ports and similar authorities would pass
the legal test?
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