The Ontario Divisional Court Rejects Bias Allegations Against Discipline Committee
Samantha Olsen with Michael Ng
Regulators draw hearing panels from small pools. The same public and professional members sit on file after file. Sooner or later, one of them will have addressed some previous matter relating to an applicant or licensee faced with a new matter— perhaps an earlier licensing decision, or an earlier complaint.
Can that panelist still decide the new matter fairly?
An Ontario court has provided an answer, in the context of a disciplinary proceeding involving a dental surgeon, Dr. Bacchus. Two members of the Discipline Committee of the Royal College of Dental Surgeons of Ontario had sat on an earlier disciplinary panel involving Dr. Bacchus. Dr. Bacchus argued this prior participation gave rise to a reasonable apprehension of bias. The Committee rejected the allegation. On appeal, the Ontario Divisional Court agreed: in the circumstances, the panel members’ earlier involvement did not create a reasonable apprehension of bias: Bacchus v. Royal College of Dental Surgeons of Ontario, 2026 ONSC 3415 (CanLII).
Background: The case arose from two Notices of Hearing involving Dr. Bacchus before the Discipline Committee. Before a hearing proceeded, counsel for Dr. Bacchus objected to the participation of two public members of the panel on the basis that they had previously served on a panel that found Dr. Bacchus guilty of professional misconduct in an earlier disciplinary proceeding.
Counsel for Dr. Bacchus argued that their prior involvement gave rise to a reasonable apprehension of bias because he had appealed the earlier decision on grounds that included allegations of bias. He submitted that permitting the same panel members to participate in the current matter could prejudice his appeal if he consented to their continued involvement. He further argued that, to ensure impartiality of the tribunal, natural justice and procedural fairness required the matter to be considered by a panel with “fresh eyes”.
The College opposed the recusal motion, arguing that the allegations of bias in the earlier proceeding remained unsubstantiated and that prior participation in a case involving the same registrant did not displace the strong presumption of impartiality. The College further cautioned that recusal should not be granted absent a sufficient evidentiary basis, as doing so could encourage litigants to raise bias allegations as a means of selecting their preferred panel members.
The Committee’s Decision: The Discipline Committee dismissed the recusal motion, concluding that Dr. Bacchus had not established a reasonable apprehension of bias: Royal College of Dental Surgeons of Ontario v. Bacchus, 2025 ONRCDSO 4.
The Committee applied the established test for a reasonable apprehension of bias: whether an informed person, viewing the matter realistically and practically, would think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly and impartially. In applying this test, apprehension of bias must be founded on strong grounds and compelling and cogent evidence. The burden rests on the party alleging bias, and the threshold for establishing a reasonable apprehension of bias is high.
The Committee found that Dr. Bacchus had not provided any evidence of actual bias demonstrating that the two panel members could not approach the matter impartially. Rather, his argument rested solely on their participation in the earlier disciplinary proceeding and the fact that he had appealed that decision on grounds that included allegations of bias. But accepting that position would effectively mean that no member of the earlier panel could adjudicate any future matter involving Dr. Bacchus. The Committee stated that suspicion alone is not enough to meet the test for a reasonable apprehension of bias.
The Committee further reasoned that, in any event, every Discipline Committee panel considering an appropriate penalty for a registrant is provided with their disciplinary history and any other information the parties consider relevant. The practice of disclosing disciplinary history applies to all discipline proceedings and does not, by itself, give rise to a reasonable apprehension of bias.
The appeal: On appeal, the Ontario Divisional Court dismissed Dr. Bacchus’s appeal, rejecting his allegations that the Committee was biased and finding that the circumstances relied upon by Dr. Bacchus did not establish a reasonable apprehension of bias.
The Court reaffirmed that there is a strong presumption that adjudicators act impartially and that “far, far more is required” to displace that presumption. It held that an adverse decision against a party, without more, does not establish a reasonable apprehension of bias. The Court further observed that, having found no reversible error in the Committee’s decision, the Committee’s adverse rulings could not reasonably be taken as evidence of bias.
The Court also rejected Dr. Bacchus’s argument that the Committee demonstrated bias by attaching the complaints, including allegations that had ultimately been dismissed, to its decision. The Court held that identifying all allegations and indicating which had been proven and which had been dismissed is an established practice of the Discipline Committee and did not give rise to a reasonable apprehension of bias.
A caution where a panel member is to address the same matter: The panel members’ earlier involvement concerned a different matter — an earlier misconduct proceeding, already resolved, with its own findings. Where, however, a decision to be made involves the same matter that a member has previously decided (after, for example, an appeal or judicial review), such a scenario involves a different question: whether someone who has already reached a conclusion can genuinely reconsider it, given the circumstances.
Such a scenario may raise a reasonable apprehension of bias, as illustrated in a case where a tribunal member reached a decision that was later quashed by a court, for serious evidentiary issues, and the tribunal assigned the same member to re-address the matter: Conseil des Montagnais de Natashquan v. Malec, 2012 FC 1392.The Federal Court concluded that a reasonable observer, aware of the criticism directed at the first decision, could not be confident that the same member would decide the second decision fairly. As the Federal Court noted (at para. 35), “Such criticisms rendering the member’s decision unreasonable must necessarily have a significant impact on the person against whom they are directed and influence his frame of mind, whether consciously or unconsciously. It is also important to consider the impression made by these criticisms in the eyes of an informed person who must consider whether a given member is the appropriate person to reassess the evidence and make new determinations fairly.”
A finding of a reasonable apprehension of bias in any given case will, of course, depend on the facts. A tribunal may prudently avoid any bias allegation entirely by not assigning a member who had already decided the matter to re-decide a conclusion to which they had committed. But a member may also properly re-address a matter where they are familiar with the evidence – especially live witness testimony – and the task is to address a narrow flaw.
Bacchus v. Royal College of Dental Surgeons of Ontario, 2026 ONSC 3415
Samantha Olsen with Michael Ng