T-52-88
Harvinder Singh Sethi (Applicant)
v.
Minister of Employment and Immigration and
Attorney General of Canada (Respondents) *
INDEXED AS: SETHI v. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Trial Division, Reed J.—Winnipeg, March 1;
Ottawa, March 8, 1988.
Judicial review — Prerogative writs — Prohibition —
Pending legislation would remove from office Immigration
Appeal Board members, some of whom being named to new
Board — Government opposing applicant's refugee status
claim — Whether situation creating reasonable apprehension
of bias No allegation of actual bias — Argument courts
ignore status of bills not to point as existence of bill very fact
giving rise to apprehension of bias — Whether event at base of
apprehension too remote to support apprehension — Bill at
sufficiently advanced stage of legislative process that not too
remote Underpinning of independence of decision maker —
Objective independence and perception thereof both necessary
— Independence and impartiality different, if overlapping,
concepts — Test ,to determine if reasonable apprehension of
bias existing — Test depending on nature of tribunal or
interest adjudicated High standard required in refugee
status determinations — Security of person at stake —
Present Board members having reason to think financial pros
pects in hands of government — Prohibition granted.
Immigration — Immigration Appeal Board — Motion to
prohibit Board from determining application for refugee status
as long as government proposing to remove Board members
from office pursuant to Bill C-55 — Bill C-55 providing for
removal of existing Board members and appointment of some
to new Board Reasonable suspicion of bias test — Board
members' financial security threatened — Fact government to
select new members from existing Board members and oppos-
*Editor's Note: This decision was reversed on appeal by
Mahoney J. (concurred in by Heald and Urie JJ.), A-493-88,
June 20, 1988. The Court of Appeal was of the opinion that the
Trial Judge erred in considering relevant the stage to which
Bill C-55 had advanced in the parliamentary process. It held
that no informed, right-minded person viewing the situation
from outside, would think it more likely than not that the
Board will not deal fairly with applicants because of the
government's intentions as expressed in Bill C-55. The Court
of Appeal decision will be reported on'a top priority basis.
ing refugee status claim justifying apprehension members
might favour government's position.
The applicant seeks an order to prohibit the Immigration
Appeal Board from determining his application for Convention
refugee status for as long as the government proposes to remove
the Board's members from office as contemplated by Bill C-55.
Bill C-55, passed by the House of Commons on October 21,
1987, establishes a new Board for the determination of immi
gration matters and provides that some, but not all, of the
existing Board members will become full members of the new
Board. The applicant argues that this situation creates a
reasonable apprehension of bias, an apprehension that the
existing Board members will tend to lean in favour of the
government, which is opposing his claim for refugee status. It is
submitted that the principles of natural justice, and the require
ments of paragraph 2(e) of the Canadian Bill of Rights and
those of section 7 of the Charter all require that a person's
rights be adjudicated upon by an independent decision maker.
Held, the application should be allowed.
The respondent's submission that there can be no reasonable
apprehension of bias since Bill C-55 is not yet statute law is
without merit. Bill C-55 is at a sufficiently advanced stage in
the legislative process that the event which constitutes the basis
of the apprehension cannot be said to be too remote to support
a finding of apprehension of bias if that finding is valid for
other reasons.
As noted by Mr. Justice Le Dain in Valente v. The Queen et
al., [1985] 2 S.C.R. 673, while the concept of independence
overlaps with the requirement that there be a lack of apprehen
sion of bias, the two are different concepts. The question
therefore focusses on the test to be used in determining whether
reasonable apprehension of bias exists: is it necessary to show
that a "real likelihood of bias" exists or is it sufficient to
establish that a "reasonable suspicion of bias" exists? The test
will vary with the nature of the tribunal or interest being
adjudicated. The Supreme Court of Canada decision in Singh
has made it clear that in cases involving the determination of
refugee status, a very high standard of fairness is required.
Here, the interest being determined by the Immigration Appeal
Board relates to the security of the person. Since a very high
standard must be met in the present situation, it is necessary to
apply the reasonable suspicion of bias test set out by Rand J. in
Szilard v. Szasz, [1955] S.C.R. 3 and reiterated by Laskin
C.J.C. in Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369. As stated by Laskin
C.J.C. in the National Energy Board case, that test is "ground-
ed in a firm concern that there be no lack of public confidence
in impartiality of adjudicative agencies".
The question whether the facts are such that a reasonably
well-informed person would have a reasonable apprehension
that the members of the Board might be likely to favour the
government's position over that of the applicant, should be
answered in the affirmative. In the present case, the Board
members have been appointed for varying terms. They would
have undertaken the appointment on that basis and arranged
their financial affairs accordingly. Bill C-55 threatens that
financial security by proposing that all the members be
removed from office while holding out the possibility that some
will be reappointed full time. Given the fact that the govern
ment will select the latter from the existing members and the
fact that it is the government which is opposing the claim
before the Board, there exists a reasonable apprehension of
bias.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Bill C-55, An Act to amend the Immigration Act, 1976
and to amend other Acts in consequence thereof, 2d
Sess., 33rd Parl., 1986-87, ss. 18, 38(1),(2),(3),(4),(7).
Canadian Bill of Rights, R.S.C. 1970, Appendix 111, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982 c. 11 (U.K.), ss. 7, 8, 11(d).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 59(2) (as
am. by S.C. 1986, c. 13, s. I), 60.
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] I S.C.R. 369; Szilard v.
Szasz, [1955] S.C.R. 3.
CONSIDERED:
Iscar Ltd. v. Karl Hertel GmbH, T-2332-85, Jerome
A.C.J., order dated 29/1/88, F.C.T.D., not yet reported;
Valente v. The Queen et al., [1985] 2 S.C.R. 673.
REFERRED TO:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
AUTHORS CITED
Shetreet, S. and Deschênes, J., eds. Judicial Indepen
dence: The Contémporary Debate. Dordrecht, The
Netherlands, Martinus Nijhoff Publishers, 1985.
De Smith's Judicial Review of Administrative Action.
4th ed. by J. M. Evans. London: Stevens & Sons
Limited, 1980.
COUNSEL:
David Matas for applicant.
Brian H. Hay for respondent Minister of
Employment and Immigration.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent Minister of Employment and
Immigration.
The following are the reasons for order ren
dered in English by
REED J.: The applicant seeks an order to prohib
it the Immigration Appeal Board from adjudicat
ing his claim of Convention refugee status. He
asks that such an order issue for as long as the
government proposes to remove the Board's mem
bers from office along the lines contained in, and
on the coming into force of, Bill C-55, An Act to
amend the Immigration Act, 1976 and to amend
other Acts in consequence thereof, 2d Sess., 33d
Parl., 1986-87 (passed by House of Commons,
October 21, 1987).
Counsel for the applicant's argument can be
succinctly summarized as follows. The members of
the Immigration Appeal Board were originally
appointed for a fixed term, to hold office during
good behaviour.' Upon the coming into force of
Bill C-55, the present Immigration Appeal Board
will cease to function. Bill C-55 creates a new
Board for the determination of immigration mat
ters, to be called the Immigration and Refugee
Board (see section 18 of Bill C-55). The members
of the present Board will not automatically
become members of the new Board. Subsection
38(1) of Bill C-55 provides:
' Subsection 59(2) and section 60 of the Immigration Act,
1976, S.C. 1976-77, c. 52 provided as follows:
59....
(2) The Board shall consist of not less than seven and not
more than eighteen members to be appointed by the Gover
nor in Council.
60. (1) Subject to subsections (3) and (5), each member
shall be appointed to hold office during good behaviour for a
term not exceeding ten years, but may be removed by the
Governor in Council for cause.
(2) Each member is eligible for re-appointment.
(Continued on next page)
38. (1) Subject to this section, the members of the former
Board and the members of the former Committee cease to hold
office on the commencement day.
There is provision for some continuing jurisdiction
with respect to pending applications. Subsections
38(2) and (3) provide:
38....
(2) The members of the former Board continue to have
jurisdiction to hear and determine pending applications for
redetermination of claims and pending appeals as described in
section 48. [It is not necessary to refer to the text of section
48.]
(3) The Chairman has supervision over and direction of the
work of the members of the former Board having continuing
jurisdiction under subsection (2).
It is contemplated, however, that some but not
all of the existing Board members will become full
members of the new Board. Subsection 38(4)
provides:
38....
(4) Each member of the former Board having continuing
jurisdiction under subsection (2), other than a person appointed
to the Refugee Division or the Appeal Division, shall be paid
the fees for services rendered under the said Act fixed by the
Governor in Council for part-time members of the Refugee
Division. [Underlining added.]
(Continued from previous page)
(3) A member ceases to hold office on attaining the age of
seventy years.
(4) No person who has attained the age of sixty-five years
shall be appointed a member.
(5) Each member who, immediately prior to the coming
into force of this Act, was a permanent member of the
Immigration Appeal Board established by section 3 of the
Immigration Appeal Board Act, as it read before it was
repealed by subsection 1280) of this Act, continues in office
as a member of the Board and shall hold such office during
good behavior but may be removed by the Governor in
Council for cause.
These provisions were amended somewhat in 1986 (S.C. 1986,
c. 13) in response to the Supreme Court decision in Singh et al.
v. Minister of Employment and Immigration, [1985] 1 S.C.R.
177:
1. Subsection 59(2) of the Immigration Act, 1976 is
repealed and the following substituted therefor:
"(2) The Board shall consist of not fewer than seven
and not more than fifty members to be appointed by the
Governor in Council.
(3) Notwithstanding subsections 60(1) and (2) but sub
ject to subsection (4), not more than eighteen members
may be appointed for terms exceeding two years and a
member appointed for a term not exceeding two years is
only eligible for re-appointment for one term not exceeding
two years.
(4) A member appointed for a term not exceeding two
years is eligible for re-appointment for one or more terms
exceeding two years if fewer than eighteen members are
serving terms exceeding two years."
And subsection 38(7) provides:
38....
(7) No person appointed to hold office as a member of the
former Board or of the former Committee has any right to
claim or receive any compensation, damages, indemnity or
other form of relief from Her Majesty in right of Canada or
any servant or agent thereof for ceasing to hold office under
this section or for the abolition of that office by this Act, but
the Governor in Council may, by order, authorize or provide for
any such relief.
Counsel for the applicant argues that it is the
government which is opposing his client's claim for
refugee status while, at the same time, that gov
ernment is about to "fire" all the existing Board
members and select some of them, but not all, to
become members of the new Board. This, it is
argued, creates a reasonable apprehension of bias,
an apprehension that the existing Board members
will tend to lean in favour of the government's
position.
I note, first of all, that no allegation is made
that actual bias exists. The argument is put solely
on the basis that there is a reasonable apprehen
sion of bias. It is trite law that the existence, or
non-existence of actual bias is irrelevant to this
issue.
Secondly, no claim is made that the applicant
should "escape" having his status determined. But,
it is argued that this should occur either after Bill
C-55 is enacted, by the new Board, or if the
government should announce that it does not
intend to remove the present Board members from
office as contemplated in Bill C-55, then, by the
existing Board.
Thirdly, a decision in the applicant's favour will
have no effect on other decisions which, since the
introduction of Bill C-55, have been made by the
Immigration Appeal Board. The applicants cov
ered by those decisions did not object to the
Board's jurisdiction; accordingly, they would be
taken to have waived any objection to the Board's
jurisdiction on the ground being asserted by this
applicant.
Counsel for the respondent argues that there can
be no reasonable apprehension of bias because Bill
C-55 is merely a bill and not yet statute law. He
argues that the courts traditionally do not pay
attention to bills because a great deal of uncertain
ty exists with respect to whether they will in fact
become law. Also, he argues, it is impossible to
determine at what point apprehension should be
said to arise: on passage of the Bill through the
House of Commons; on introduction to the House;
when the legislation is being drafted; when policy
is being discussed before drafting is started.
In the context of this case, I do not find either of
these arguments convincing. While courts tradi
tionally do not pay much attention to bills which
are before legislatures, this usually occurs in
response to arguments made concerning issues of
interpretation with respect to the existing legisla
tion. A similar attitude is exhibited when a court is
asked to determine an issue on the assumption that
a given bill will become law. I cannot forbear from
quoting some recent comments by the Associate
Chief Justice in this regard:
Second, the principal ground advanced in support of the stay
is that a Bill is presently before the Parliament of Canada
which will not only take away the plaintiffs' cause of action,
but as I understand it, will do so retroactively. 1 am asked to
find this rather special situation to be more appropriate for a
stay of proceedings than parallel proceedings. I take the oppo
site view. I cannot imagine anything less predictable than the
course of legislation through Parliament. Indeed, the only thing
that is certain about life in Parliament is that nothing is
certain. The ever-present possibility of a crisis leading to an
election or a general election without such a crisis, to say
nothing of a hostile Senate, underline only the most basic
realities that make it impossible to predict whether any meas
ure will become law, let alone when.
These comments are found in Iscar Ltd. v. Karl
Hertel GmbH, F.C.T.D., January 29, 1988,
Jerome A.C.J., not yet reported (T-2332-85). But,
in this case, the apprehension of bias argument is
based on the fact that Bill C-55 is not yet law. If it
were law, the creation of the new Board would be
a fait accompli; there would no longer be an
argument that reasonable apprehension of bias
existed (or if there were, it would be based on
other grounds). I do not think the argument that
courts in general ignore the status of bills before
legislatures pertains in this case. The existence of
Bill C-55 is the very fact which gives rise to the
argument that an apprehension of bias exists.
As noted, counsel for the respondent argues that
if one is to give some weight to the existence of Bill
C-55, it becomes an impossible task of knowing
where in the legislative process to draw the line (at
the policy development stage of legislation, at the
drafting stage, etc.). I do not think it is necessary
to address the issue in those terms. The question is
whether the event which is said to lie at the base of
the apprehension of bias, in this case, is too remote
to support such apprehension. In my view, given
our system of government, once a piece of legisla
tion has passed the House of Commons, there is a
reasonable likelihood that it will become law. That
is not, of course, to say that there is certainty.
There may be amendments proposed, by the
Senate, which lead to change. The Bill may die on
the order paper. The Bill may be passed by the
House of Commons and the Senate and signed by
the Governor General, but never proclaimed in
force. Nevertheless, for the purposes of this case, I
think the Bill is at a sufficiently advanced stage in
the legislative process so that it would not be too
remote or speculative an event to support a finding
of apprehension of bias if that finding is valid for
other reasons.
I turn then to the heart of the argument being
made by counsel for the applicant. It is argued
that the basic principles of natural justice (at
common law) and the requirements of paragraph
2(e) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III] 2 and those of fundamental justice
prescribed by section 7 of the Canadian Charter of
2 2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)], 3 all require that a person's
rights be adjudicated upon by an independent
decision maker. As noted, this carries with it the
requirement that there be no facts from which a
conclusion can be drawn that a reasonable appre
hension of bias exists. He notes that two of the
cardinal underpinnings of the existence of the in
dependence of a decision maker are: (1) security of
tenure; (2) financial security. Mr. Matas, counsel
for the applicant, made reference to the declara
tions of three international bodies as relevant to
this case.
The International Bar Association, in October
22, 1982, at a Conference in Delhi, unanimously
approved standards (drafted as a proposal by the
Association's Committee on the Administration of
Justice) respecting the administration of justice.
One of these stated:
20(b) In case of legislation abolishing courts, judges serving
in these courts shall not be affected, except for their transfer to
another court of the same status.
The Law Association for Asia and the Western
Pacific (Lawasia) issued a report on the indepen
dence of the judiciary, following a seminar in
Tokyo on July 17-18, 1982. One of the principles
and conclusions formulated in that report states:
11.(d)(iii) The abolition of the court of which a judge is a
member should not be accepted as a reason or an occasion for
the removal of a judge.
The collection of papers and addresses edited by
Shetreet and Deschênes, entitled Judicial In
dependence: The Contemporary Debate, at page
454, contains the text of the "Universal Declara
tion on the Independence of Justice", adopted at
Montréal on June 10, 1983. That Declaration
contains the following statement:
2.39 In the event that a court is abolished, judges serving in this
court shall not be affected, except for their transfer to
another court of the same status.
Counsel for the applicant also referred to the
Supreme Court decision in Valente v. The Queen
et al., [1985] 2 S.C.R. 673. In that case, a Provin -
3 7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
cial Court Judge had declined jurisdiction with
respect to a proceeding before him on the ground
that he was not an independent tribunal as
required by paragraph 11(d) of the Canadian
Charter of Rights and Freedoms. ° Lack of in
dependence was asserted on a number of grounds,
among them were: some provincial court judges
were appointed at pleasure (i.e., those that had
reached retirement age); the executive not the
legislative branch of government determined the
judges' salaries; the salaries and pensions were not
a charge on the Consolidated Revenue Fund; sal
aries were the subject of annual parliamentary
appropriation; a judge received fringe benefits
similar to civil servants (sick leave, dental plans,
life and accident insurance, etc.); a judge could be
removed after an inquiry, but without a vote of the
legislature. It is not necessary to list all the points
which were alleged to undercut the independent
status of provincial court judges.
The relevance of the Valente decision, to this
case, is that the Supreme Court seemed to hold
that in order to satisfy paragraph 11(d) of the
Canadian Charter of Rights and Freedoms, there
had to be not only a status or relationship of
independence, resting on objective institutional
conditions or guarantees, e.g. security of tenure,
financial security, etc., but also a perception that
the tribunal is independent (see particularly, page
689 of the Supreme Court decision). This second
branch of the test, as expressed by the Court of
Appeal of Ontario, was an adaptation of the test
applying in apprehension of bias cases (pages 684-
685 of the Supreme Court decision). The Supreme
Court seemed to adopt the view that there must be
not only objective independence, but also a precep-
tion of independence, while at the same time,
making it clear that independence and impartiality
are two different, if overlapping, concepts. Mr.
Justice Le Dain, at page 685, noted:
Although there is obviously a close relationship between in
dependence and impartiality, they are nevertheless separate and
distinct values or requirements. Impartiality refers to a state of
mind or attitude of the tribunal in relation to the issues and the
' 11. Any person charged with an offence has the right.
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
parties in a particular case ... The word "independent" in s.
11(d) reflects or embodies the traditional constitutional value
of judicial independence. As such, it connotes not merely a
state of mind or attitude in the actual exercise of judicial
functions, but a status or relationship to others, particularly the
Executive Branch of government, that rests on objective condi
tions or guarantees.
Mr. Justice Le Dain then went on to analyse the
arguments made with respect to three distinct
aspects of the status of the provincial court judges
in issue: security of tenure; financial security;
administrative control by the executive branch of
government. Mr. Justice Le Dain determined that
the requirements of independence prescribed by
paragraph 11(d) of the Charter would not be the
same for all judges and all tribunals; the highest
standard, that applicable in the case of a superior
court judge, was not a standard that had to be met
in all cases (refer to pages 693-694 of the deci
sion). With the exception of the appointment at
pleasure of post-retirement judges, the Supreme
Court found that the conditions which pertained
with respect to the institutional relationships be
tween the provincial court judges and the provin
cial executive, in the Valente case, were not such
as to constitute an infringement of paragraph
11(d).
I note that the authorities to which counsel for
the applicant has referred all relate to the require
ment of independence. As noted above, while the
concept of independence overlaps with the require
ment that there be a lack of apprehension of bias,
the two are different concepts. Therefore, it is
necessary to ask, first, what is the test used in
determining whether a reasonable apprehension of
bias exists.
Counsel for the respondent argues that it is the
test referred to in the Valente decision, at page
684:
... the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information. In
the words of the Court of Appeal [see [1976] 2 F.C. 20, at p.
29], that test is "what would an informed person, viewing the
matter realistically and practically—and having thought the
matter through—conclude" ....
Counsel argues that this quotation from Mr. Jus
tice de Grandpré's decision in Committee for Jus
tice and Liberty et al. v. National Energy Board et
al., [1978] 1 S.C.R. 369, is an endorsement by the
Supreme Court of that test as applicable with
respect to both the determination of apprehension
of bias and with respect to a determination of
whether or not a perception of independence exists.
I do not read Mr. Justice Le Dain's reference to
the above quotation this way. It seems to me Mr.
Justice Le Dain, in the passage quoted, is doing no
more than summarizing the reasons which the
Ontario Court of Appeal had given in the court
below. Also, the test referred to, that expressed by
Mr. Justice de Grandpré, was in the context of the
National Energy Board case, a dissenting judg
ment.
I think it is fair to characterize the National
Energy Board case as one which dealt with the
question whether the test for a reasonable appre
hension of bias was one in which it was necessary
to show that "a real likelihood of bias" existed or
whether it was sufficient to show that "a reason
able suspicion of bias" existed. It seems to me, the
Supreme Court adopted the latter. At page 391 of
the decision, Chief Justice Laskin, in writing for
the majority, stated:
This Court in fixing on the test of reasonable apprehension of
bias, as in Ghirardosi v. Minister of Highways for British
Columbia, and again in Blanchette v. C.I.S. Ltd., (where
Pigeon J. said at p. 842-43, that "a reasonable apprehension
that the judge might not act in an entirely impartial manner is
ground for disqualification") was merely restating what Rand
J. said in Szilard v. Szasz, at pp. 6-7 in speaking of the
"probability or reasoned suspicion of biased appraisal and
judgment, unintended though it be". This test is grounded in a
firm concern that there be no lack of public confidence in the
impartiality of adjudicative agencies, and I think that emphasis
is lent to this concern in the present case by the fact that the
National Energy Board is enjoined to have regard for the
public interest.
The two formulations of the test for reasonable
apprehension of bias are addressed in de Smith,
Judicial Review of Administrative Action, 4th ed.,
London: Stevens & Sons Limited, 1980, at pages
262-264:
A "real likelihood" of bias means at least a substantial possibil
ity of bias. The court, it has been said, will judge of the matter
"as a reasonable man would judge of any matter in the conduct
of his own business." The test of real likelihood of bias, which
has been applied in a number of leading cases in magisterial
and liquor licensing law, is based on the reasonable apprehen
sions of a reasonable man fully apprised of the facts. It is no
doubt desirable that all judges, like Caesar's wife, should be
above suspicion; but it would be hopeless for the courts to insist
that only "people who cannot be suspected of improper
motives" were qualified at common law to discharge judicial
functions, or to quash decisions on the strength of the suspi
cions of fools or other capricious and unreasonable people.
What is the position if the court is satisfied, on the evidence
before it, that there was no real likelihood of bias but is
nevertheless of the opinion that a reasonable man, at the time
when the decision under review was made, could well have
suspected that the tribunal would be biased? Does the public
interest nevertheless demand that the original decision be set
aside? The cases do not speak with one voice on this matter.
The courts have often quashed decisions on the strength of the
reasonable suspicions of the party aggrieved, without having
made any finding that a real likelihood of bias in fact existed.
... the pendulum has now swung towards a test of reasonable
suspicion, founded on the apprehensions of a reasonable man
who had taken reasonable steps to inform himself of the
material facts. "Reasonable suspicion" tests look mainly to
outward appearances; "real likelihood" tests focus on the
court's own evaluation of the probabilities; but in practice the
tests have much in common with one another, and in the vast
majority of cases they will lead to the same result. For the
courts to retain both tests as alternative methods of approach is
unlikely to cause serious uncertainty, and there may be advan
tages in preserving a measure of flexibility.
Mr. Justice Rand, in the Szilard [Szilard v.
Szasz, [1955] S.C.R. 3] case, at page 4, stated
with respect to arbitrators of a commercial
dispute:
In particular they must be untrammelled by such influences as
to a fair minded person would raise a reasonable doubt of that
impersonal attitude which each party is entitled to. This princi
ple has found expression in innumerable cases ....
And, at pages 6-7:
It is the probability or the reasoned suspicion of biased apprais
al and judgment, unintended though it may be, that defeats the
adjudication at its threshold.
It is the case which Chief Justice Laskin cited in
the National Energy Board case.
The test for reasonable apprehension of bias, as
with perception of independence, will vary with the
nature of the tribunal or interest being adjudicat
ed. This is clearly so under section 7 of the
Canadian Charter of Rights and Freedoms, and
indeed it was so at common law. The Singh case
has made it clear, however, that in cases involving
the determination of refugee status, a very high
standard, on the scale of values, is required. The
interests being determined by the Immigration
Appeal Board, in these cases, relate to the security
of the person. Keeping in mind, then, that a very
high standard of fairness (fundamental justice)
(natural justice) must be met in the present situa
tion, it is necessary to apply, to the facts of this
case, the test set out by Mr. Justice Rand in the
Szilard case and reiterated by Chief Justice
Laskin in the National Energy Board case.
The result of doing so, in my view, leads to the
conclusion that a reasonable apprehension of bias
exists. The present Board members have been put
in a position where they have every reason to think
that their immediate financial future is unsettled
and in the hands of the government. That same
government is opposing the applicant's claim for
refugee status, the question which is before the
Board. I emphasize that there is no suggestion of
actual bias. Counsel for the applicant stressed that
no such allegation was being made and there is not
a shred of evidence to suggest actual bias. The
question is whether the facts are such that a
reasonably well-informed person would have a
reasonable apprehension that the members of the
Board, in the present circumstances, might be
likely to try to please the government, by favouring
its position over that of the person opposing the
government. I think such exists.
This is not a case where the members were
originally appointed on a short term basis
(although since 1985 some have been so
appointed) 5 . While it is true that the shorter the
term of an appointment, when such is renewable,
the closer one gets to effective appointment "at
pleasure", this case does not deal with that issue.
In this case, the Board members were appointed
for varying terms (some for 10 years). They would
have undertaken the appointment on that basis
and arranged or planned their financial affairs
accordingly. What Bill C-55 does, is undercut that
financial planning, that financial security. By
threatening to "throw" all the members of the
5 Supra, ftn. 1.
Board out of office, it threatens the financial
security of the members, while at the same time,
holding out the possibility that some of them will
be reappointed full time. In my view, given the
fact that it is the government which will select
from the existing Board members, those that will
be reappointed full time, and it is the government
which is opposing the applicant's claim before the
Board, I accept the applicant's contention that a
reasonable apprehension of bias exists.
Two procedural matters remain to be comment
ed upon. Counsel for the respondent raised the
preliminary objection that many of the appendices
to the applicant's affidivit are not appropriate:
some are authorities; some are matters about
which the applicant does not have personal knowl
edge; the affidavit is not one framed as based on
information and belief. Although counsel for the
respondent wished his objection noted for the
record, he also indicated that he preferred that the
motion proceed on the basis of the material as
filed, it being expeditious and convenient to do so.
Secondly, counsel for the respondent indicated
that while the applicant's style of cause named
both the Attorney General of Canada and the
Minister of Employment and Immigration as
respondents, he was only appearing on behalf of
the latter.
For the reasons given, the applicant will have an
order prohibiting the present Immigration Appeal
Board from determining his application for Con
vention refugee for as long as a reasonable appre
hension of bias exists as described herein. The
applicant is entitled to recover his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.