Barrister and Solicitor
Legal Writing and Research
Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC (Ont CA, 2016)
In this Court of Appeal case an appeal was granted on a rare finding of bias on the part of the motion judge below. The court cited the following principles as applicable to the issue:
Presumption of Integrity
 Judges benefit from a presumption of integrity, which acknowledges that they are bound by their judicial oaths and will carry out their duties in accordance with their legal responsibilities: R. v. Teskey, 2007 SCC 25 (CanLII),  2 S.C.R. 267, at para. 29. In R. v. Arnaout, 2015 ONCA 655 (CanLII), at para. 18, this court described these responsibilities: “A judge must both weigh the case impartially in his or her own mind and ensure that the circumstances objectively demonstrate his or her impartiality to an informed and reasonable observer.”
 Although judges enjoy the benefit of the presumption of integrity, the presumption can be rebutted by a judge’s comments or conduct: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII),  2 S.C.R. 282, at para. 27.
Reasonable Apprehension of Bias
 As noted by Abella J. in Yukon Francophone, at para. 21, the Supreme Court has consistently endorsed the test for a reasonable apprehension of bias as set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),  1 S.C.R. 369, at p. 394:
“[W]hat 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.” The strong presumption of judicial impartiality is not easily displaced: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII),  2 S.C.R. 357, at para. 22. A reasonable apprehension of bias requires a “real likelihood or probability of bias”: Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC),  3 S.C.R. 851, at para. 2; R. v. S. (R.D.), 1997 CanLII 324 (SCC),  3 S.C.R. 484, per Cory J., at paras. 112-14. The test is an objective one, viewed from the perspective of an informed and reasonable observer: Chippewas of Mnjinkaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII), 265 O.A.C. 247, at para. 230, leave to appeal refused, 33613 (July 18, 2010). It is a high burden.
 Significantly, in assessing whether a judge’s presumption of impartiality has been displaced, his or her individual comments or conduct during the hearing of a matter should not be considered in isolation but within the context of the entire proceedings: S. (R.D.), per Cory J., at para. 134; Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII),  2 S.C.R. 259, at para. 77.
 The objective of the test is to ensure both the reality and the appearance of a fair adjudicative process. Both are essential to maintaining public confidence in our system of justice: Yukon Francophone, at paras. 22-23. It is not normally possible to prove actual bias. If the impugned conduct or comments have the cumulative effect of raising a reasonable apprehension of bias, there is no need to consider the impact of the bias.