Prejudicial Comments and the Law of Bias

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

Comments made by a decision-maker may give rise to a reasonable apprehension of bias. It is useful to contrast the statements at issue in two Canadian cases.

On the one hand, in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),[1] a lay member of a regulatory board made comments to the media before and during a rate-setting hearing.

One of the issues related to the recovery of salary costs by a utility company from ratepayers. The member was reported, before the hearing as describing executive pay packages as “ludicrous” and “unconscionable” and stating that the costs should be borne by shareholders in the utility, not ratepayers: “I’m not having anything to do with the salary increases and big fat pensions”. After the hearing began, the member continued to speak to the media. He reiterated his view that “it is unfair to expect ratepayers, the consumers, you and I to pay for this kind of extravagance”, suggesting that the packages were “excessive” and could not be justified “at all”: “very clearly there is a significant level of executive over compensation”. The Supreme Court of Canada held that, “viewed cumulatively”, these statements generated a reasonable apprehension of bias.[2]

On the other hand, in R. v. Pickersgill, ex parte Smith,[3] a speech on transportation policy by a member of the Canadian Transport Commission did not give rise a reasonable apprehension of bias. The speech in question was given about six weeks before the opening of a rate-setting hearing under a new statutory scheme. The fate of the so-called “The Canadian” passenger trains run by Canadian Pacific Railway was at issue in the hearing. The applicants argued that the member’s speech revealed a bias in favour of granting the railway company’s application to discontinue the train service, as it allegedly indicated a pre-disposition to favour the economic interests of railway companies, to the neglect of the public interest (which, in turn, was a factor to be considered under the statutory scheme). Wilson J considered that several factors militated against a finding of bias. The member had not specifically mentioned “The Canadian” or the Canadian Pacific Railway.[4] While he had expressed an understanding of the economic challenges facing railways, he did not indicate that his eyes were closed to consideration of the public interest.[5] To the extent that passages of the speech suggested favouritism to the interests of the railways, they had to be read in light of his closing remarks, which described the statutory scheme as having “twin objectives”: “securing the most adequate and efficient methods of total transport and of distributing the benefits of increased efficiency and lower cost fairly among the transport industries, their customers, and the Canadian public”.[6] Considering the speech as an “integrated whole”, there was no basis for a finding of bias.[7]

These contrasting decisions can be understood in terms of time and space. In Newfoundland Telephone, the problematic comments were made immediately prior to and during the hearing process: they were temporally proximate to the decision; the comments also touched directly on a set of the precise issues that were to be considered in the decision: there was also spatial proximity. But in Pickersgill, there was a lapse of time between the comments and the decision (six weeks) and the comments were couched in generalities, not in specifics: here, temporal and spatial proximity were absent. Hence, I suggest, the different outcomes, and the analytical utility of thinking about bias issues in terms of time and space.

I would add to these two another pair of cases addressing prior conduct that might have been indicative of bias. On the one hand, in Beaverford v. Thorhild (County No. 7),[8] a municipal councillor was precluded by reason of bias from adjudicating on whether or not to grant a quarrying permit because he had recently introduced a legislative proposal that would have imposed an outright ban on quarrying and required a subsequent super-majority to reverse the ban: the legislative proposal was close in time to the decision at issue and took a very strong view on precisely the same subject-matter, so considerations of proximity weighed heavily in favour of a conclusion of bias.[9] On the other hand, in Francis v. Canada (Citizenship and Immigration),[10] a refugee adjudicator was not tainted by bias on the basis of articles he had written previously about anomalies in the refugee determination process and the threat of immigration to Canada’s social cohesion: the comments in the articles were broad, general and concerned “a societal question that is unrelated to the case at bar”,[11] thus lacking spatial proximity, and predated the adjudicator’s appointment, meaning temporal proximity was also lacking.

[1] [1992] 1 SCR 623.

[2] Ibid., at p. 643.

[3] (1970), 14 D.L.R. (3d) 717.

[4] Ibid., at p. 724.

[5] Ibid., at p. 726.

[6] Ibid., at p. 728.

[7] Ibid., at p. 729. See also Teksavvy Solutions Inc. v. Bell Canada, 2024 FCA 121, at para. 52, emphasizing that engagement on policy issues by regulators can be constructive and in the public interest.

[8] 2013 ABCA 6.

[9] Ibid., at paras. 30-31.

[10] 2012 FC 1141.

[11] Ibid., at paras. 35-36.

This content has been updated on June 9, 2025 at 22:44.