Child Adoption and the Rule against Bias

Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 is a sad case about adoption. Sad because of the facts and sad because lengthy litigation has prevented a young child being placed in a permanent home.

Oh no, not that guy again!

Ontario's human rights legislation allows unsuccessful parties to a complaint to apply for reconsideration of a decision. But what if the adjudicator who already found against the party is the same adjudicator who determines the application for reconsideration: will the party applying for reconsideration really get a fair shake?

Municipal Councillors: Bias and Legislative Activities

Decision-making by municipal councillors has garnered plenty of headlines in recent months due to the travails of Toronto Mayor Rob Ford (see my posts here and here, and my Financial Post op-ed).  The issues in Ford's case are principally ones of statutory interpretation. A recent decision of the Alberta Court of Appeal, Beaverford v Thorhild (County No. 7), 2013 ABCA 6, is a more traditional application of the common law rule against bias, although the presence of Facebook in the facts of the case gives it a certain novelty value.

I fear, however, that the Court got it wrong in finding bias in this case. It has been quite a while since the Supreme Court of Canada has addressed the rule against bias and this case may provide it with an occasion to do so.

Statistical Evidence and Bias

I have posted previously about Sean Rehaag's empirical analysis of immigration decisions. He also authored an analysis of refugee claim data for 2011:

Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across IRB Members in 2011.

In 2011, some Members very rarely granted refugee status, including Daniel McSweeney (0%, 127 decisions) and David McBean (1.9%, 108 decisions). Others granted refugee status in most of the cases they heard, including Thomas Pinkney (98.0%, 799 decisions) and Deborah Morrish (97.9%, 366 decisions).

This report was relied on by the applicants in Turoczi v. Canada (Citizenship and Immigration), 2012 FC 1423. Member McBean had refused their refugee claim. They argued, based on Rehaag's statistical analysis, that the rate at which Member McBean granted refugee claims raised a reasonable apprehension of bias: a fair-minded observer would not conclude that the decision-maker had decided the case fairly.

Zinn J. rejected the application. Without more, the statistics did not satisfy the test for bias:

[13]           Quite simply, the statistics provided by the applicants are not, without more, sufficiently informative.  Furthermore, one must question what the “informed person” would take from them.

[14]           The applicants submit, and this is the true focus of their submission, that the acceptance and rejection rate data, standing alone, is such that “one must be wilfully blind not to see that there exists a reasonable apprehension of bias” on the Member’s part.  This ignores or overlooks that the acceptance and rejection rate alone says nothing to the “informed person” even if the uninformed person might reach the conclusion that the applicants suggest.

[15]           Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more, including:

•                     Were all of the figures, including, importantly, the weighted country origin averages, properly compiled?

•                     Did the RPD randomly assign cases within each country of origin?  If not, how did the RPD assign cases?

•                     Can factors affecting the randomness of case assignment be reliably adjusted for statistically?

•                     If so, what are the adjusted statistics, and what is their significance?

•                     If the RPD did randomly assign cases, what is the statistical significance of the Member’s rejection rate?

•                     Beyond the Member’s relative performance within the RPD, is there anything objective impugning the Member’s decisions (i.e. that suggests they are wrongly decided)?

•                     Accounting for appropriate factors (if that is possible), are the Member’s decisions more frequently quashed on judicial review than would be expected?

•                     Has the Member made recurring errors of a certain type, e.g. on credibility, state protection, etc., that bear a semblance to the impugned decision?

In short, the informed reasonable person, thinking the matter through, would demand a statistical analysis of this data by an expert based upon and having taken into consideration all of the various factors and circumstances that are unique to and impact on determinations of refugee claims before he or she would think it more likely than not that the decision-maker would not render a fair decision

Zinn J. did not shut the door entirely on the possibility that statistical evidence could assist an applicant in a future case. Analysis, rather than assertion, would be necessary. It will be interesting to see whether a future applicant engages a statistician to perform (and explain) a regression analysis of the type suggested by Zinn J. 

There might, in addition, be better cases in which to make arguments based on statistics. As Zinn J. observed, the present case was straightforward:

[18]           The applicants make no attempt to impugn the Member’s decision on their application.  It did not involve the exercise of discretion on his part.  The applicants claimed refugee protection fearing Ms. Karpati’s violent former boyfriend, who could not accept that their relationship was over and that a new one with Mr. Turoczi had begun.  The Member determined that the applicants had a suitable internal flight alternative (IFA) in Budapest, which is 200 kilometres away from the applicants’ home town, and that they had not rebutted the presumption of state protection.  These findings were straightforward applications of binding legal authorities and the relevant burden of proof.  In my view, the fact that the Member was practically obliged, in light of the relevant law and the burden of proof, to decide as he did, is another factor that a reasonable and informed person, examining the issue thoughtfully, would consider.  Indeed, in the instant case, there is every likelihood that an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that there was very little likelihood that any member would have decided the claim differently. 

Similar questions have been raised in Ireland. In Nyembo v. Refugee Appeals Tribunal, 2007 IESC 25, the applicant was permitted by the Supreme Court to make an argument based on statistics which demonstrated an elevated rate of refusal, but the case settled before the judicial review concluded.

I am not aware of any case in which a statistical argument based on elevated refusal rates have been successful. If I have missed one, please let me know.

Sending a Quashed Decision Back to the Initial Decision-maker Caused a Reasonable Apprehension of Bias

The long title explains the result in Conseil des montagnais de Natashquan c. Malec, 2012 CF 1392, a case about alleged discrimination against Aboriginal educators.

Conflicts of Interest and Bias

There is a very brief discussion in a recent Alberta Court of Appeals decision, Kretschmer v Terrigno, 2012 ABCA 345, of the relationship between the rule against bias and imputed conflicts of interest. The most interesting point to emerge is that the rule against bias, applied to adjudicators, may be less demanding than the rules governing conflicts of interest, applied to lawyers.

Immigration Officer's Academic Writing Did Not Cause a Reasonable Apprehension of Bias

The applicant in Francis v. Canada (Immigration and Citizenship), 2012 FC 1141 was concerned that she had not got a fair shake before the Refugee Protection Division, on the basis of comments made by the decision-maker in previous academic writings. He had suggested that the refugee protection system gave rise to anomalies, and cited the applicant's place of origin, Saint Vincent, as an example. He had also argued that Canada's immigration policy could lead to a break down in social cohesion.

What Happens if you Overhear a Decision-Maker's Deliberations?

A funny thing happened at the Tribunal Administratif du Québec recently. A hearing was conducted into the suspension of an individual's driver's licence by videoconference. One of the administrative judges was present at the hearing; the other joined from a remote location. When the SAAQ -- the administrative agency that controls drivers' licences -- sought to introduce a medical note which it had not previously produced to the individual, the lawyers were asked to leave the room while the judges discussed admissibility.

Knowing who your friends are (and what that might do to you)

An interesting decision from the Federal Court of Canada today, the latest installment in a long-running labour relations saga at Canada Post.