The Language of Administrative Law VI: Personification

(This is the sixth and last in a series of posts, a day early this time because I hope to comment tomorrow on two very important administrative law decisions from the Supreme Court of Canada. You can also read the first, second, third, fourth and fifth installments. Download my draft paper in its entirety here.)

As is well known, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.[1] All public bodies are subject to this rule against bias, though it is applied flexibly to administrative decision-makers.[2] In administrative law, the question is always “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker] whether consciously or unconsciously, would not decide fairly?”[3]

Unfortunately, the suggestion that the so-called ‘reasonable observer’ might actually be a real person is a source of intractable difficulty in this area.[4] This ‘reasonable observer’ is purely a judicial construct; indeed, in attributing various degrees of knowledge to the hypothetical observer, a judge may simply be “holding up a mirror to himself”.[5] Although it is more accurate to say that “the court in cases such as these personifies the reasonable man”[6], any reference to a hypothetical reasonable person “encourages the conflation of ‘descriptive’ attributes of the person with the normative standard of behaviour”.[7] This is an invitation to woolly thinking: decisions justified on the basis that ‘a reasonable person would think X’ with little or no discussion of why the judge believes intervention would be appropriate or inappropriate.

A court faced with an allegation of biased decision-maker should not ask: “Would the hypothetical reasonable person think the decision-maker was not impartial?” Rather, the question should be: “Should the decision-maker recuse herself?” Or, as the High Court of Australia would have it, “There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[8] Abandoning the pretense that hypothetical reasonable persons have any role to play in administrative law adjudication is a necessary pre-condition to a meaningful inquiry that will enable jurists to determine when reviewing courts should intervene on the grounds of partiality.[9]

When it comes to questions of bias, unfortunately, clear rules are elusive. There are no equivalent to the procedural fairness rules that are obscured by the metaphor of the spectrum – perhaps for this reason the hypothetical reasonable observer continues to persist. The inquiry is always “highly fact-specific”: “There are no shortcuts”.[10] A significant pecuniary interest,[11] prejudicial comments before or during a decision-making process,[12] a prior relationship with one of the parties,[13] pre-judgement of the issues,[14] or overly vigorous prosecution[15] can make a decision-maker’s position untenable. But the relevant question is not what a man or woman plucked off the street at random would say about the impartiality of the decision-maker: what matters is the judge’s considered view of the decision-maker’s ability to conduct a fair hearing. As Gageler J. recently put it, in an Australian case in which a prosecutor had also participated in the adjudication of the proceedings she had earlier been involved in, “a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person”.[16] This conclusion adequately captures the normative content of the requirement of administrative impartiality.

One area of the rule against bias in which courts have achieved an important degree of clarity is that relating to decisions taken by elected officials. When a representative of a segment of the population is not exercising an adjudicative function,[17] she may speak freely of her intuitions about future decisions as long as she does not demonstrate a ‘closed mind’.[18] Here at least the rule is clear. Of course it is not self-applying and cannot be enforced without a modicum of subjective judicial judgement, but the achievement of clarity suggests that once the defective tool of personification is cast aside, sustained reflection on the normative underpinnings of the rule against bias may yield rewarding outcomes.

[1] R. v. Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256, at p. 259, per Lord Hewart C.J.

[2] See e.g. Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, at p. 118, per Tucker L.J.:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth

[3] Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394, per De Grandpré J., dissenting, quoting the judgment under appeal: [1976] 2 F.C. 20.

[4] Abimbola A. Olowofoyeku, “Bias and the Informed Observer: A Call for a Return to Gough” (2009), 68 Cambridge Law Journal 388.

[5] Lord Rodger, “Bias and Conflicts of Interest: Challenges for Today’s Decision-Makers”, 24th Sultan Azlan Shaw Lecture.

[6] R. v. Gough, [1993] A.C. 646, at p. 668, per Lord Goff.

[7] Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford, Oxford University Press, 2003), at pp. 9.

[8] Ebner v. Official Trustee in Bankruptcy (2000), 205 C.L.R. 337, at p. 345.

[9] Laverne Jacobs, “From Rawls to Habermas: Toward a Theory of Grounded Impartiality in Canadian Administrative Law” (2014), 51 Osgoode Hall Law Journal 543.

[10] Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45, at para. 77.

[11] Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869.

[12] Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.

[13] Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45.

[14] Beaverford v Thorhild (County No. 7), 2013 ABCA 6.

[15] College of Physicians & Surgeons (Ontario) v. Casullo, [1977] 2 S.C.R. 2.

[16] Isbester v. Knox City Council, [2015] HCA 20, at para. 63. Emphasis added.

[17] Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.

[18] Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170. For an earlier authority, using slightly different concepts, see Franklin v. Minister of Town Planning, [1948] A.C. 87.

This content has been updated on September 24, 2015 at 09:32.