March 1, 2011

Judicial Review for apprehension of bias: production of documents by the decision-maker

Administrative Law
Professional Regulation

The Supreme Court recently reserved its decision on an application by the College of Veterinarians of BC asserting a reasonable apprehension of bias of a member of the Human Rights Tribunal, Ms. Parrack. The court did, however, release a decision concerning a related application by the College seeking that the Human Rights Tribunal disclose documents allegedly relevant to its motion.

Ms. Parrack currently adjudicates a human rights claim against the College, which has to date involved more than 200 hearing days. The issue of bias arose after the Government declined to reappoint Ms. Parrack to the Tribunal, despite the hearing being incomplete. In a statement to the parties, Ms. Parrack expressed her regret that the decision communicated by the Minister resulted in her having to adjourn the hearing. The complainant veterinarians subsequently wrote to government officials to urge her reappointment, and in the following month, Ms. Parrack was offered an authorization to continue to adjudicate the case, which she accepted. The College subsequently brought two applications before Ms. Parrack, asking that she order the Tribunal to disclose documents relating to her reappointment, and asking that she step down on the basis of a reasonable apprehension of bias.

The refusal of Ms. Parrack to order the Human Rights Tribunal to disclose documents relating to the issue of her reappointment is available here.

The refusal of Ms. Parrack to step aside on the basis of a reasonable apprehension of bias is available here.

Although the court reserved its decision on the main issue, the court released reasons for its declining a preliminary application of the College that the Tribunal produce documents. These reasons attach the statement of Ms. Parrack underlying the College’s application for judicial review.

The court decided, with respect to disclosure, that while the court had a jurisdiction to order a decision maker to produce documents for a judicial review application, [15] such a power must be exercised “with great caution, only in exceptional circumstances, and only when the documents are both necessary and relevant.” [20]

In deciding to refuse the College’s application, the Court noted the College was alleging only a reasonable apprehension of bias, and not actual bias – the College itself took the position what Ms. Parrack actually thought did not matter. Accordingly, the College was seeking documents irrelevant to whether a reasonably informed person would apprehend Ms. Parrick was biased, based on her statements, and based on the consequent actions of the complainant veterinarians. [23] Furthermore, although the College asserted that Ms. Parrack’s statement created the impression that the government’s refusal to reappoint her was “connected” to the College, and although the veterinarians may have taken that position after the hearing was adjourned, the court found nothing in Ms. Parrack’s statement could be construed as making that allegation. [29] Although the College attempted to create relevance by asserting its entitlement to explore if Ms. Parrack intentionally “precipitated a crisis,” [26], that was not an allegation of bias at all, but one of misconduct, not forming part of the legal basis of the petition. [26] Further still, if the documents had any relevance, such relevance would be tangential. [36]

The court rejected the College’s argument that the Tribunal had to produce documents based on Ms. Parrack referencing some details about her not being re-appointed, such that “procedural fairness demands that a tribunal not make findings on the basis of evidence not disclosed to the parties.” [30] The court found that this principle did not extent to a recusal hearing. Otherwise, “an adjudicator would have to disclose documents relating to any relevant factor in a recusal decision in the middle of a hearing; and the relevant facts are those chosen by the party challenging the adjudicator.” [31] Such a rule would be unworkable, [34] giving every party “the ability to create an impasse in a hearing that it saw as not going its way by simply raising a conflict or apprehension of bias.” [32]

The BCSC decision on disclosure is here.

Brar v. College of Veterinarians of British Columbia, 2011 BCSC 215 (B.C.S.C. File No. S107603, Vancouver Registry)