Prior Relationships and the Law of Bias

This is an extract from my recent paper on bias (available here):

I will consider three Canadian decisions in this section. They each relate to the prior relationship between a decision-maker and a party to a matter.

The issue in Committee for Justice and Liberty v. National Energy Board[1] was the perceived lack of impartiality of the Chair of the National Energy Board in a quasi-judicial proceeding. In the proceeding, the Board had to consider which, if any, of competing applications for a Mackenzie Valley pipeline should be granted a certificate of public convenience under s. 44 of the National Energy Board Act.[2]

Prior to his appointment to the Board, the Chair had been the president of a Crown Corporation involved in studies of the physical and economic feasibility of a Mackenzie Valley pipeline. The Chair attended meetings of a study group and, indeed, participated in the group’s unanimous decision on the ownership and routing of the pipeline, just a few months before his appointment to the Board. The application arising from the study group’s work was filed about five months after the Chair’s appointment to the Board. The Crown Corporation remained an active member of the study group through the application process up to the point where concerns about impartiality were raised.

A majority of the Supreme Court held that the Chair should have recused himself. One of the applicants before the Board “was born” out of the “deliberations and decisions” of the study group.[3] As a member of this group, the Chair “was not a mere cipher”[4] but had to apply his “own judgment” and his “own talents to the joint project”,[5] including assessing its “[e]conomic and financial feasibility”,[6] with significant “latitude” in pursuing the interests of the Crown Corporation.[7] Ultimately, the Chair “had a hand in developing and approving important underpinnings of the very application which eventually was brought before the panel”[8] and supported the decision to make the application,[9] in circumstances where the question the Board had to answer was “not only … whether a particular application for a pipeline will succeed but also … whether any pipeline will be approved”.[10] Accordingly, a well-informed observer would have formed a reasonable apprehension that the Chair would be pre-disposed to decide in a way favourable to the application arising from the study group’s work.

For three dissenting judges (as well as three judges at the Federal Court of Appeal who found there was no reasonable apprehension of bias), it was important that the pipeline plan had long been in the offing: “the problem was that of routing and of ownership and it is to these two points and to these two points only that Mr. Crowe gave his attention”[11] whereas many other points also fell to be considered by the Board, that there had been modifications to the proposal since the Chair’s involvement and the fact that the Chair had signed a Board report raising “many question marks” about the application process.[12] This was, in other words, a fairly close case, with many judges taking a different view of the facts from the perspective of a well-informed observer.

The issue in Wewaykum Indian Band v. Canada[13] arose after the Supreme Court dismissed the appeals of two bands which had claimed exclusive possession of a reserve. The reasons for decision were written by Justice Binnie. It came to light after the decision had been released that Justice Binnie had acquired some knowledge of the underlying dispute in 1985-1986 when he was Associate Deputy Minister for Justice, in which capacity he oversaw all litigation involving the federal government (save for tax matters and cases from Quebec).

The Supreme Court held that there was no reasonable apprehension of bias. First, Justice Binnie’s prior involvement in the matter was of “a limited supervisory and administrative nature”:[14] “he was never counsel of record, and played no active role in the dispute after the claim was filed”.[15] In his role as Associate Deputy Minister Justice Binnie was involved in setting the “strategic orientations” of “thousands of files” and the issue he had discussed in relation to this one was of a high-level nature as it related to reserves in British Columbia generally.[16] Second, a “lengthy period” of 15 years had elapsed between his earlier involvement and the Supreme Court decision.[17] In addition, Justice Binnie stated that he had no recollection of the matter. These considerations led the Supreme Court to conclude that Justice Binnie need not have recused himself.

My third case is Canadian Union of Postal Workers v. Canada Post Corporation.[18] This case arose from special federal legislation passed in 2011 to compel striking Canada Post workers to return to work. One component of the back-to-work legislation was that a “final offer” arbitrator would be appointed. Both Canada Post and the Union would make their “final offer” and the arbitrator would choose between them. Once the arbitrator had chosen, the “final offer” would become the binding collective agreement between the parties.

The Federal Court held that the arbitrator nominated by the federal government should have recused himself. The arbitrator had previously represented Canada Post in litigation against a different Union about pay equity. Although his active involvement in the litigation ended almost a decade prior to his nomination as arbitrator, he remained a partner at the firm handling the litigation, until 2009. The case only ended in 2011 and continued to have repercussions on Canada’s Post’s operations.

Here, a reasonable apprehension of bias existed because of the short passage of time between the arbitrator’s prior involvement (especially given the continuing importance of the underlying dispute for Canada Post), the fact that the arbitrator “had formed ties with various managers at Canada Post during this mandate”,[19] and the similarity of the issues in the arbitration and the prior litigation, both of which dealt “with the relationship between employees and management at Canada Post”.[20]

Two factors explain why these cases were decided the way they were: time and space.

In terms of time, the length of time from the prior involvement was a key consideration. In National Energy Board, the Chair’s involvement preceded the hearing by only a few years and the application was made to the Board just five months after the Chair’s appointment to the Board. In Canada Post, the arbitrator had been directly involved in a similar matter for many years and indirectly involved until a couple of years before his appointment. By contrast, 15 years had elapsed in Wewaykum between Justice Binnie’s prior involvement and his deliberation on the matter in the Supreme Court.

In terms of space, the nature of the prior involvement was also significant. In National Energy Board, the Chair was a key player in the development of recommendations relating to a Mackenzie Valley pipeline and the application which was before the Board was born out of the work done by the study group of which the Chair was a member. In Canada Post, the arbitrator was lead counsel for the company for many years (albeit that the intensity of his involvement had diminished in the years leading up to his appointment) on a matter also relating to pay and conditions in Canada Post. By contrast, in Wewaykum, Justice Binnie did not have a hands-on role in the litigation, as his involvement related to high-level matters of policy in relation to Indigenous land matters in British Columbia generally and not to the specifics of the particular file: Justice Binnie’s perspective as Associate Deputy Minister was significantly more high-level than his perspective as a Supreme Court judge.

I would suggest, therefore, that in National Energy Board and Canada Post, there was both temporal and spatial proximity: the prior involvement was close in time to the decision in question and related to substantially similar issues as those to be considered in the hearing. By contrast, in Wewaykum, the prior involvement was ancient history and had not required Justice Binnie to take a substantive position on the issues that eventually came before the Supreme Court, meaning that temporal and spatial proximity were lacking.

[1] [1978] 1 SCR 369.

[2] RSC 1970, c N-6.

[3] [1978] 1 SCR 369, at p. 375.

[4] Ibid., at p. 386.

[5] Ibid., at p. 387.

[6] Ibid., at p. 390.

[7] Ibid., at p. 387.

[8] Ibid., at p. 389.

[9] Ibid., at p. 390.

[10] Ibid., at p. 391.

[11] Ibid., at p. 403.

[12] Ibid., at p. 405.

[13] 2003 SCC 45, [2003] 2 SCR 259.

[14] Ibid., at para. 82.

[15] Ibid., at para. 83.

[16] Ibid., at para. 84.

[17] Ibid., at para. 88.

[18] 2012 FC 975.

[19] Ibid., at para. 89.

[20] Ibid., at para. 90.

This content has been updated on May 5, 2025 at 15:16.