Prior Involvement and the Law of Bias

This is an extract from my recent paper on bias (available here):

In this section, I will draw a contrast between an Australian decision and one from Canada, again to support my proposition that the law relating to bias is best understood in terms of temporal and spatial proximity.

At the centre of the tale of Isbester v. Knox City Council[1] was a dog, Izzy, who had attacked and injured a person. Legislation in the Australian province of Victoria gave the Council the power to order that a dog be destroyed in such circumstances. The problem here arose from the involvement of a Mrs. Hughes in the decision-making process. As the Council’s Co-ordinator of Local Laws, she had been an active participant in the investigation that led to the initiation of legal proceedings in the Magistrates’ Court relating to Izzy. Subsequently, she sat on the panel that ordered Izzy’s destruction.

For the majority (Kiefel, Bell, Keane and Nettle JJ.) explained, the key question was the interest Mrs. Hughes would have in seeing charges brought to their successful conclusion: “The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment”.[2] As Gageler J. put it, writing separately, “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”.[3]

Here, Mrs. Hughes’ prior investigative involvement tainted her later participation with a reasonable apprehension of bias, as “her involvement in the prosecution of the charges created an interest in the final outcome of the matter”:

Having participated in obtaining the conviction for the offence…, she organised the Panel hearing and drafted the letter advising the appellant of it [and] supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog. If Ms Hughes could not actually be described as a prosecutor with respect to the [final] decision…, she was certainly the moving force.[4]

As she had a “material part” in the decision, it had to be quashed.[5]

Most instances of prior involvement in a decision-making process will “typically” invalidate a decision, certainly where the same person wears the hats of investigator, prosecutor and adjudicator.[6] However, there are cases in which prior involvement has not risen to the level required to generate a reasonable apprehension of bias. Again, this can be understood in terms of temporal and spatial proximity. Consider the decision of the Court of Appeal for Saskatchewan in DeMaria v Law Society of Saskatchewan.[7] The issue here related to the role of in-house counsel at the Law Society, a person who “among other capacities, acts as legal advisor to the Executive Director of the Law Society and to the Law Society itself, prosecutes all instances of lawyer misconduct, handles general litigation involving the Law Society, and prosecutes instances of unauthorised practice of law”.[8]

The facts giving rise to an allegation of bias were unusual. They involved contact between the Benchers of the Law Society (that is, the senior members who chair committees and, ultimately, make decisions in the name of the Society) and the in-house counsel:

(a)               the Bencher who served as chair of the A&E Panel [i.e. the discipline committee] contacted the Law Society’s in-house counsel on an ex parte basis about the A&E Panel’s final decision before it was released to the parties and also invited the Law Society’s in-house counsel to play golf with him;

(b)               the Benchers who sat in review of the A&E Panel’s decision breakfasted with the Law Society’s in-house counsel on the day of the hearing and met with him on an ex parte basis after the Bencher review hearing; and

(c)               one Bencher is ‘friends’ on Facebook with the Law Society’s in-house counsel.[9]

As to the email of the decision and accompanying golf invitation, the Court of Appeal characterized the communication as an “imprudent and out-of-place addition to a surprisingly ex parte email”,[10] but only “a single flippant display of familiarity between a Bencher and the in-house counsel for the Law Society”.[11] This was not enough to ground a finding of bias, given the “institutional limitations and administrative arrangements at the Law Society”[12] and the ability of the Benchers to “expertly divorc[e] themselves from friendship and affinity to dispassionately assess a matter on the basis of advocacy and reasoned argument on the facts and law”.[13] In a spatial sense, the communication was not sufficiently ‘on point’ as it had no relation to the substance of the matter being decided. It was also significant that the email communication was of a final decision: temporally speaking, the decision had already been made and could not be affected by the “careless slip of familiarity” that had occurred.[14]

As for the breakfast, this was “ill-considered”[15] (no doubt because of its temporal proximity to the hearing) but nonetheless understandable given the multiple roles played by in-house counsel for the Law Society.[16] Spatial proximity was lacking, because the in-house counsel had perfectly legitimate reasons for attending a breakfast meeting. As for the social media relationship, without more “that unadorned fact is indicative of nothing more than the two individuals know each other, which would be presumed in any event from their respective offices within the corporate structure of the Law Society”.[17]

[1] [2015] HCA 20.

[2] Ibid., at para. 46.

[3] Ibid., at para. 63.

[4] Ibid., at paras. 43-44.

[5] Ibid., at para. 48.

[6] David Brown and John Evans, Judicial Review of Administrative Action in Canada (looseleaf), s. 11.20.

[7] 2015 SKCA 106.

[8] Ibid., at para. 31.

[9] Ibid., at para. 36.

[10] Ibid., at para. 44.

[11] Ibid., at para. 45.

[12] Ibid., at para. 44.

[13] Ibid., at para. 45.

[14] Ibid., at para. 44.

[15] Ibid., at para. 47.

[16] Ibid., at para. 48.

[17] Ibid., at para. 49.

This content has been updated on May 12, 2025 at 01:49.