January 12, 2011

13 Ways Hearing Panels Can Lose Jurisdiction by Appearing Biased: Part 2

Administrative Law
Professional Regulation

This week we continue with introducing thirteen ways a hearing panel can lose its jurisdiction based on actions that make it appear biased. Last week, we detailed methods 1, 2 and 3, which focused on exhibiting hostility and thereby appearing biased. This week, we discuss methods 4, 5 and 6, which focus on prejudging a case.

All hearing panels I have worked with try very hard to provide a fair hearing and render a well-considered decision.   One of the hurdles of the art of adjudicating faced by panel members is the temptation to draw conclusions on the ultimate issues before all the evidence is presented.  It is natural for us as humans to sift and classify their information, and draw conclusions on the issue at hand, as we listen to what a witness is saying. As adjudicators on a hearing panel, however, it is crucial to withhold drawing conclusions on the ultimate issues until all evidence is heard and considered.  This includes not making comments that suggest a decided mind, and not drafting a completed decision in advance of hearing all the evidence. A panel deciding a case or appearing to decide before all the evidence is heard is a basis for the panel to lose its jurisdiction due to actual or an appearance of bias.

Below are three examples of cases where decisions were set aside because the adjudicator(s) prejudged, or appeared to pre-judge, the ultimate issues.

4. Making comments before or during the hearing of one’s opinion on an issue to be adjudicated

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.  Prior to a hearing involving the company’s charges and expenses, one of the Commissioners on the Board publicly made comments against its pay policies, including “But, I’m not having anything to do with the salary increases and big fat pensions”. The same Commissioner continued making similar comments to the media both during the hearing and before the Board’s decision was released. The Supreme Court of Canada held a reasonable apprehension of bias existed and rendered the decision void. The Court found the Commissioner’s opinions indicated his mind was closed as to make any of company’s submissions futile during the hearing.

5. Making comments and asking irrelevant questions during the hearing about the credibility of a registrant

Canadian College of Business and Computers Inc. v. Ontario, [2010] O.J. No. 5435 (C.A.) This case concerned the licensing of a private career college under the Private Career Colleges Act.  During the hearing, a panel member stated that the principal of the private college was misleading the panel.  The statement was made while the principal was cross examining the superintendant of licensing on a key issue.  Throughout the hearing the same panel member asked recurring questions of the principal about his possible ties to Liberation Tigers, which was irrelevant to the issue in the hearing. The panel member’s statements taken together with the context of the proceedings concerning allegations of dishonesty as a whole gave rise to a reasonable apprehension of bias, and could be seen as an indication that the panel had prejudged the principal’s credibility.

6. Making and preparing a decision before hearing all the evidence

Sternberg v. Ontario Racing Commission (2008), 88 Admin L.R. (4th) 54, 2008 (Ont. S.C.J. – Div. Ct.). At a hearing before the Commission, Sternberg, who appeared as counsel, berated the Chairman of the Commission. At that hearing, the Chairman commented to Sternberg that he had already asked the witness the same question before. Sternberg responded by saying that the Chairman was a former hockey player and had no legal training. In a subsequent hearing to determine how the Commission should respond to Sternberg’s comments to the Chairman, Sternberg apologized three times for his statements, but after an eight-minute adjournment, the Commission produced 15-pages of typewritten reasons, which the court found to have been prepared in advance, to order that Sternberg be prohibited from appearing before the Commission as counsel until he provided an unqualified apology. The Court found that a reasonable bias of apprehension existed and quashed the decision, finding the Commission had pre-judged and pre-prepared its decision. For example, the decision stated Sternberg showed no remorse, even though he had apologized on 3 occasions at the hearing.

Xu v. Canada (Minister of Citizenship and Immigration), [1999] FCJ No. 1184. Xu applied for an authorization to study in Canada and a related visitor’s visa. The visa officer’s letter refusing the application was finalized prior to Xu’s interview. The visa officer gave Xu the letter at the end of the interview without any modifications to reflect the impact of the interview. The Court found a fettering of discretion and that a reasonable apprehension of bias existed, and referred the case back to be decided by a different visa officer.

Next week we will cover methods 7, 8 and 9 for a hearing panel losing jurisdiction based on an appearance of bias, due to involvement of the prosecutor or the investigatory arm of an institution.