AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:
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).
