In The Law Society of British Columbia and Valerie Frances Hemminger, 2024 LSBC 7, a hearing panel of the Law Society of British Columbia Tribunal refused to admit twelve affidavits offered to support the Respondent’s allegation of a reasonable apprehension of bias on the part of the panel. The panel found the affidavits were inadmissible primarily because the “reasonable and informed person” part of the test for reasonable apprehension of bias is an objective legal fiction, not informed by a subjective person whose views may be assessed by evidence and then applied by a decision maker. Accordingly, the affidavits – which offered the opinions of self-professed “reasonable” people about the implications of procedural decisions at the heart of the Respondent’s challenge – were inadmissible.
Background – This case began with a disciplinary citation to the Respondent from the Law Society of British Columbia in 2018. The substance of the alleged misconduct, though, is irrelevant to the procedural and evidentiary disputes that arose during the proceeding, and which make this case notable for this blog.
In September 2020, a Panel of the Law Society of British Columbia Tribunal convened a Facts and Determination Hearing about the 2018 citation. The Hearing continued in December 2020, during which the Law Society successfully objected to the admission of a medical report submitted by the Respondent. The Respondent then closed her case. The Panel set deadlines for the exchange of written submissions in the next stage of the proceeding, with oral argument scheduled for January 25, 2021.
On January 13, 2021, the Respondent applied to submit further medical evidence, and to postpone the deadline for written submissions in the upcoming oral argument until after a decision on the Respondent’s additional evidence (the “Reopening Application”). The Law Society opposed this application.
The following events moved quickly, and form the foundation of the Respondent’s bias objection:
- January 20, 2021 – the Respondent’s Reopening Application was denied, with reasons to follow.
- January 21, 2021 – the Respondent’s counsel advised the LSBC Tribunal that it would seek judicial review of that denial.
- January 22, 2021 – the Panel of the LSBC Tribunal hearing the case reconsidered its decision, and communicated that it would hear the Respondent’s Reopening Application de novo at the oral argument scheduled for January 25, 2021.
- January 25, 2021 – the Respondent’s counsel advised the LSBC Tribunal that Respondent would not appear at oral argument that day, and would proceed to judicial review.
Almost a year later, on January 11, 2022 the Respondent’s application for judicial review was dismissed as premature. The Respondent’s appeal of that decision was rejected on January 25, 2023. The Tribunal ruled that it retained jurisdiction in parallel with the application for judicial review, but, in light of the Respondent’s reluctance to proceed, decided to defer further steps until after the judicial review concluded.
On May 31, 2023, the Respondent sought the recusal of the Panel due to a reasonable apprehension of bias. In the Panel’s words, at para. 13, the “crux of the Recusal Application is that the Panel’s initial dismissal of the Reopening Application, without a hearing, gave rise to a reasonable apprehension of bias. The Respondent argues that the reconsideration of the decision to deny the Reopening application only served to compound the apprehension of bias.” In support, the Respondent filed affidavits from the Respondent and twelve individuals, each of whom professed to be a reasonable person properly informed about the facts. The Law Society objected that all thirteen affidavits were inadmissible for myriad reasons, including that they contained irrelevant material, hearsay statements, impermissible personal opinion, argument, commentary and gratuitously inflammatory remarks, unqualified expert opinion, and legal opinions.
The Panel’s Decision – The Panel began by setting out the reasonable apprehension of bias test, citing its expression in Wewaykum Indian Band v. Canada, 2003 SCC 45, at paras. 59-61. In the Panel’s words,
“[a] person contending there is a reasonable apprehension of bias on the part of a decision maker must show that a reasonable and informed person, who has applied themself to the question realistically and practically, would reasonably conclude that the decision-maker does not have an open mind.”
As a preliminary matter, the Panel noted, at para. 38, that it was not bound by the rules of evidence that would apply in a court. Nevertheless, it found “no reason to depart from the rules of evidence generally applicable in British Columbia.”
Turning to the substance of the Law Society’s admissibility objections, the Panel found that the “fundamental difficulty” of the affidavits offered by non-parties was that they “offer unnecessary, and therefore inadmissible, opinion evidence.” The Panel explained that while the reasonable apprehension of bias test is framed around a “reasonable and informed person”, that is “not a person at all, but a metaphorical fiction used to express a legal standard.” The Respondent had sought to support her view of what a “reasonable and informed person” would think by presenting affidavits from individuals who claimed to be reasonable and informed about the circumstances.
The Panel considered that this fundamentally misunderstood the relevant test. At paras. 45-46:
“the decision-maker’s task in determining reasonable apprehension of bias is not to ask whether some real individual matches the standard and, if so, to consider or accede to that person’s view, but to directly apply the legal standard to the facts of the case. […] “The opinions of some set of people about implications that may be drawn from the salient facts, no matter how considered, how earnestly held or how ardently expressed, are not themselves relevant facts.”
The test for reasonable apprehension of bias is objective, and the Panel explained, at para. 47, that statements of subjective belief or opinion are “legally irrelevant to the analysis the Panel must undertake.”
While this was sufficient to reject the twelve affidavits from non-parties, the Panel found they were also inadmissible for a range of other reasons. For example, they offered evidence on irrelevant matters, hearsay statements, or did not qualify as lay opinion. And, as to the affidavits of lawyers or former lawyers, the Panel found they offered unqualified expert opinion, or unnecessary legal opinion. While the Panel was mostly restrained in its reasons, in connection with the admissibility of certain affidavits as expert evidence it observed, at para. 51: “in some instances, the affiants do not bear the hallmarks of objectivity but embarrass their evidence by hyperbole or passionate statements of emotion.”
Contributor’s Notes:
This case does not arise out of arbitration, but has application in that it provides an interesting example of how (or, how not) to prove allegations of reasonable apprehension of bias.
That is an important (and current) issue for arbitration practitioners, not least because of the pending appeal in Aroma Franchise Company Inc. et al. v. Aroma Espresso Bar Canada Inc. et al., 2023 ONSC 1827. The Aroma case was previously covered here: Ontario – Multiple arbitral appointments give rise to reasonable apprehension of bias – #734 and Lisa Reflects (2023): Aroma – the blockbuster case of 2023? – #804. It concerns the set aside of two awards rendered in an Ontario-seated international arbitration under Art. 34(2)(a)(iv) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), which has the force of law in Ontario under the International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5, s 5.
As the Superior Court’s decision in Aroma indicates, the facts and context surrounding an arbitrator’s disclosure are critical to the success of a challenge for alleged bias. The judgment concluded that the arbitration was not in accordance with the Model Law because, during the arbitration, the arbitrator accepted – and failed to disclose – an appointment from one of the parties’ counsel in an unrelated arbitration. The failure to disclose that appointment gave rise to a reasonable apprehension of bias in breach of Art. 12 of the Model Law, which requires the parties to be treated with equality and each given an opportunity of presenting their case.
The Aroma appeal was argued on December 6, 2023, and the decision of the Court of Appeal is expected to further clarify the law regarding an arbitrator’s duty of disclosure.
In a counterpoint to the result in Aroma, though, the Ontario Superior Court recently exercised its residual discretion under the Model Law to decline to set aside the award of a three-member tribunal in a NAFTA arbitration. That case is Vento Motorcycles, Inc. v. United Mexican States, 2023 ONSC 5964, which this blog covered here: Ontario – No unfairness despite Browne v Dunn violation and arbitrator reasonable apprehension of bias – #796. The Court reached that result despite its finding of a reasonable apprehension of bias on the part of one arbitrator, which arose from the arbitrator’s non-disclosure of appointments by Mexico, during the arbitration, to arbitrator rosters under two different trade agreements. The Vento case is now also before the Ontario Court of Appeal.
Thedecisions of theSuperior Court of Justice in Aroma and Vento are hard to square, with Aroma suggesting a strict approach to arbitrator disclosure and Vento tacking the opposite. Stay tuned to see how the Ontario Court of Appeal deals with these cases, which present an opportunity to provide much-needed guidance for future challenges to arbitrators and/or their awards under the Model Law.