In common law countries, the constitutional tradition dictates that all disputes must be heard before an impartial third party, free of bias.

Legally speaking, what constitutes “bias”?

In R. v. S.(R.D.), [1997] 3 S.C.R. 484, the Supreme Court of Canada indicated whether any particular set of circumstances will disqualify the decision-maker on the ground of reasonable apprehension of bias depends on the following test:

“[W]hat would an informed person, viewing the matter realistically and practically — and having thought the matter through– conclude?”

In one recently reported case,+ the Ontario Racing Commission held a review hearing concerning a representative’s conduct at a prior hearing.

At the end of the representative’s submission, the panel adjourned for 8 minutes, and returned with their decision. The reading of the decision took 25 minutes. The reasons were pre-typed, 15 pages long, and identical to the written reasons issued on the following day.

The Superior Court of Justice, upon an application of a judicial review of the hearing in question, concluded that the hearing panel prejudged the matter. The court found that it would have been “impossible for the panel to have deliberated and drafted the reasons during the eight-minute adjournment.”

The court ruled that “once a hearing is tainted by the appearance of bias the integrity of the process requires that the decision of the hearing be quashed.” Accordingly, the decision of the Ontario Racing Commission was rescinded.

+Sternberg v. Ontario Racing Commission (2008), 92 O.R. (3d) 257.