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ENFORCEMENT AND PROCEDURE - Human rights tribunals and boards of inquiry - Appeals and judicial review - Grounds - Apprehension of bias

Wednesday, May 03, 2017 @ 8:30 AM  


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Appeal by the Attorney General of Nova Scotia (AG) from the dismissal of its motion for the Board Chair to recuse himself. A complaint was filed on behalf of four individuals alleging that they had been discriminated with respect to social services provided to them because of the combined effect of their mental disabilities and their reliance on social assistance. The Disability Rights Coalition raised its own systemic complaint that the Province had, since 1986, discriminated against all persons with disabilities in Nova Scotia by not providing them with their choice of supportive community-based housing. During the course of a Board of Inquiry established to consider the complaint, it came to light that the Board Chair had written two letters concerning matters that were similar to the issues raised in the complaint. The AG moved to have the Board Chair recuse himself on the basis that the impugned correspondence raised a reasonable apprehension of bias. The Board Chair ruled that the letters he had written did not give rise to a reasonable apprehension of bias and he dismissed the motion. The AG appealed and asked that the Court order the Chair to recuse himself from any further consideration of the complaint. The respondent Nova Scotia Human Rights Commission submitted that the Court should decline to hear the appeal on the basis that it was premature.

HELD: Appeal dismissed. The appropriate standard of review was correctness. Given that the complaint was filed in 2014, the Board Chair was appointed in 2015, and the parties had all been heavily involved in establishing the rules and parameters of the Inquiry, it would be a colossal waste of time and resources for the Court to decline to consider the merits of the allegation of apparent bias on the grounds of prematurity. While the AG was right to bring a motion to challenge the Board’s jurisdiction on the basis of a reasonable apprehension of bias, the Board Chair did not err in refusing to recuse himself. There was no evidence to suggest that the Chair would be prevented from judging the matter fairly. He expressed a clear awareness of his past views concerning community-based placements and was conscientiously maintaining an open mind concerning the issues before him in the human rights complaint. The legal context of the complaint was very different from the context in which he wrote his letters. Furthermore, there was no questionable link between the Chair and the populations, parties or subject-matter joined in the current human rights complaint. Finally, a lengthy period of time had elapsed since the Chair wrote the impugned letters. The AG had failed to displace the presumption of impartiality by offering cogent evidence that would establish a reasonable apprehension of bias.

Nova Scotia (Attorney General) v. MacLean, [2017] N.S.J. No. 89, Nova Scotia Court of Appeal, P. Bryson, J.W.S. Saunders and C.A. Bourgeois JJ.A., March 17, 2017. Digest No. TLD-May12017007