Canada: Apprehending Reasonable Apprehension Of Bias

Three Recent Reasonable Apprehension of Bias Findings by the Ontario Court of Appeal

Careful observers may have noticed that the Ontario Court of Appeal has allowed three civil appeals on the basis of reasonable apprehension of bias in the last few months. This presents an opportunity to reflect on what conduct constitutes reasonable apprehension of bias and what it means for an appeal court to make such a finding.

What is Reasonable Apprehension of Bias?

The formal test for reasonable apprehension of bias is well-established and reflects the now seminal Supreme Court jurisprudence laid out in R. v. Campbell, R. v. S. (R. D.), and Wewaykum Indian Band v. Canada. There is a presumption that judges are impartial, and there is a high threshold to successfully challenge a decision based on reasonable apprehension of bias.1 At the same time, challenges to a judge's impartiality necessitate scrutiny over judicial conduct because the integrity of the legal system requires both fairness and the appearance of fairness throughout the court process;2 without both, public confidence in the system is lost.

What are the markers of a reasonable apprehension of bias? The test is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge.3 The test requires objectivity on two fronts: the perspective from which the alleged bias is viewed is that of a "reasonable person" (which may differ from that of an affected litigant), and the alleged bias must also be reasonable given the circumstances of the conduct.4 A positive finding under this test does not mean that the judge necessarily made a decision based on improper considerations- only that he or she reasonably appeared to be biased in the circumstances.

ONCA's Recent Reasonable Apprehension of Bias Findings

The most recent findings of reasonable apprehension of bias by the Court of Appeal in the civil context helpfully reflect a representative cross-section of the types of judicial conduct that could result in a case being sent back for redetermination.

The first case, Laver v. Swrjeski, 2014 ONCA 294, is an example of how a judge's positive comments about a party or witness can support a finding of reasonable apprehension of bias. In a classic family loan dispute, the applicant's evidence that the amount at issue was a loan directly contradicted the evidence of her daughter's common law husband, a police officer, who said it was a gift. The judge accepted the evidence of the respondent (the police officer) and, throughout the hearing, revealed his preference towards the evidence of police officers in the following ways:

  • "...we have police officers, whom I know and respect and, gentlemen, you're asking me to make a finding that one of them isn't being truthful, and I'm prepared to do that, but there'd better be some strong, strong evidence..."
  • "But you understand my concern and my uber-sensitivity given that I've work[ed] – you know, I've done cases with all these officers. I don't know them personally. I know them professionally, and so that's my – and maybe I'm being over-sensitive here because of my background, but all you have is a reputation, gentlemen..."
  • "I'm not going to make any finding nailing anybody's reputation here... because I'm very uncomfortable because I know these people. I worked with them for a long time, so I even thought, frankly, I was going to [recuse] myself, but then I thought, no, I don't know them that well."5

Of course, negative comments by a judge about a party can also support a finding of reasonable apprehension of bias. In Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, which was a commercial dispute arising out of the purchase and sale of a well-known Toronto commercial premises, the defendants appealed various interlocutory orders that were made mid-trial. The following conduct, taken together, were found to be sufficient to show reasonable apprehension of bias:

  • Interjections and adverse comments by the judge about a defendant's credibility during his cross-examination, to the effect that the evidence provided "defie[d] common sense" and was "gobbledygook";
  • Suggestion by the judge to the plaintiffs that a Mareva injunction motion should be brought against the defendant (recall that a Mareva injunction is an extraordinary remedy);
  • Mid-trial findings, during the Mareva injunction motion, that various defendants had committed fraud;
  • Order by the judge mid-trial for production of documents by the defendants that had not been previously requested and for which relevance and probative value had not been established;
  • Findings by the judge of contempt and failure to comply with mid-trial directions against the defendants, without analysis of the extent to which the directions had been followed or discussion of the validity of the reasons put forward for non-compliance.6

According to the Court of Appeal, the comments during cross-examination "[c]onsidered in isolation... could be viewed as reflecting nothing more than a trial judge's exasperation with a difficult witness. However, considered in the context of the trial judge's other conduct that suggests that he prejudged [the appellant's] conduct and credibility, they form part of a pattern that gives rise to a reasonable apprehension of bias."7 This discussion succinctly reflects the contextual approach to be taken by appellate courts in assessing reasonable apprehension of bias claims.

Finally, in Langstaff v. Marson, 2014 ONCA 510, reasonable apprehension of bias was found against a trial judge who made rulings on liability in a civil sex assault case that was nearly identical to another case from which he had recused himself. The two cases arose because two individuals separately pursued civil actions against the same teacher and school board for alleged sex assaults which were almost identical in nature: the teacher had set up a "mini-zoo" in his classroom and used it to lure and groom students before assaulting them. In the first case seen by the judge, he expressed during the pre-trial his view that the school board was vicariously liable for the sex assault. After making the comment (but while the pre-trial was ongoing), the judge realized that he had a personal association with the plaintiff and his family and recused himself. Less than a year later, the same judge presided over the trial for the other case, which had the same teacher and school board defendants but a different plaintiff. Because there was a different plaintiff, the judge's conflict was less apparent but existed nonetheless: a decision favourable to the plaintiff in the current case would also be favourable to the plaintiff in the previous case, a person with whom the judge was admittedly associated. The judge proceeded to rule that the school board was vicariously liable for the sex assault, consistent with the opinion he had shared at the pre-trial for the previous case. The Court of Appeal determined that a reasonable person informed of the judge's involvement with the first case (his pre-trial opinion, association with the plaintiff, and subsequent recusal), viewing the matter realistically and practically, would conclude that there was an apprehension of bias.8 It also did not matter that counsel did not object at the outset of the trial to the participation of the judge, even after learning some (but not all) of facts about the judge's involvement with the previous case, because the issue of bias did not occur to him at that time: "[t]here is a presumption of impartiality on the part of the judiciary and counsel was entitled to assume impartiality."9


Each of the above cases reinforces the Supreme Court's approach to reasonable apprehension of bias: since there is a presumption of judicial impartiality, an appellant alleging reasonable apprehension of bias must be able to point to a judge's words or conduct to substantiate the claim. In each of the three cases discussed above, there was enough evidence identified by the appellant to rebut the presumption. However, a finding that there is no reasonable apprehension of bias may just mean that sufficient evidence was not identified or provided to the appeal court to make such a finding.

Deference to the judiciary is always in order and counsel may be rightly reluctant to call into question a judge's impartiality. Nevertheless, the cases above reflect that sometimes, inadvertent, good faith mistakes can be made by judges. In order for courts to identify reasonable apprehension of bias and fulfil their role of upholding the integrity of the legal system, it is incumbent on counsel, as both advocates for their clients and officers of the court, to be vigilant, keep a watchful eye out for the appearance of bias, and consider how to appropriately address such issues when they arise.


[1] R. v. S. (R. D.), [1997] 3 S.C.R. 484, at para. 113.

[2] R. v. Campbell, [1997] 3 S.C.R. 3, at para 10.

[3] Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 66.

[4] R. v. S. (R. D.), [1997] 3 S.C.R. 484, at para. 111.

[5] Laver v. Swrjeski, 2014 ONCA 294.

[6] Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793.

[7] Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, at para. 71.

[8] Langstaff v. Marson, 2014 ONCA 510.

[9] Langstaff v. Marson, 2014 ONCA 510, at para. 37.

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