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Bias - Evidence. Boua v. Canadian Imperial Bank of Commerce
In Boua v. Canadian Imperial Bank of Commerce (Fed CA, 2026) the Federal Court of Appeal dismissed a JR, this brought against "two decisions of the Canada Industrial Relations Board" where "the Board ruled on a certain number of preliminary objections raised by both parties" in an unjust dismissal context.
The court considers the propriety of inclusion of evidence in a JR factum, here regarding bias allegations:[4] On the issue of bias, this Court must determine, having regard to the record before it, whether the alleged breaches took place (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 54). A tribunal’s impartiality is presumed. Any challenge to it is a serious allegation that cannot rest on mere suspicion or pure conjecture. On the contrary, this type of argument must be "“supported by material evidence demonstrating conduct that derogates from the standard”" from the standpoint of a reasonable and right‑minded person (Arthur v. Canada (Attorney General), 2001 FCA 223 at para. 8; Maritime Employers Association v. Longshoremen’s Union, Local 375 (Canadian Union of Public Employees), 2020 FCA 29 at para. 5; Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at pp. 394–395). Here, there is no evidence of this nature before us in the record, nor was any such evidence adduced before the Board, which had nevertheless given the applicant every opportunity to support this allegation.
[5] The memorandum of fact and law the applicant submitted before us does indeed contain details of what caused her to question the Board’s impartiality towards her. However, there is no evidence in the record supporting what the applicant says on this matter. These statements therefore remain essentially unsubstantiated allegations on which the Court cannot rely to determine the merits of the bias argument. As this Court has recently noted, it is not appropriate to put evidence before it by means of a memorandum of fact and law (Qualizza v. Canada, 2025 FCA 222 at para. 14). On judicial review, the evidentiary basis for the arguments put forward by the parties in their memoranda must be found in the record of either the applicant or the respondent filed under Rules 309 and 310 of the Federal Courts Rules, SOR/98-106, failing which it may not be considered (Rémillard v. Canada (National Revenue), 2022 FCA 63 at para. 56). Once again, evidence relating to the allegation of bias is completely absent in this case, which is sufficient to reject this argument. . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal considered briefly the test for bias:[18] Finally, Ms. Deokaran makes very serious bias allegations against members of the Divisional Court. Such allegations must be accompanied by particulars and cogent evidence: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 113, 117. Ms. Deokaran did not meet this high threshold. . Reflection Productions v. Ontario Media Dev. Corp.
In Reflection Productions v. Ontario Media Dev. Corp. (Div Ct, 2021) the Divisional Court considered evidence that may or may not be used in a bias allegation (here anti-Christian bias):[68] The applicant’s concerns about anti-evangelical Christian bias are founded upon Mr. Harilaid’s interpretation of statements allegedly made by OMDC representatives. It bears repeating that a decision-maker is presumed to be impartial and that party’s interpretation of a decision-maker’s tone of voice, facial expressions and body language are insufficient to overcome the presumption of impartiality: Beard Winter LLP v. Shekhdar, 2016 ONCA 493 at para 12; Ramirez v. Canada, 2012 FC 809 at paras. 22 and 23; SMR v. Children’s Aid Society of Oxford County, 2003 CanLII 2421 (ON SC), [2003] OJ No. 2568 (Ont. S.C.) at paras 23 – 25. The nature of the concerns raised by the applicant are thus not capable of overcoming the high hurdle required to show bias.
[69] Finally, the statements made by people other than a decision-maker are not proof of the decision-maker’s state of mind: Elson v. Canada, 2017 FC 459 at paras. 146 – 149. Any statements made during the October 7, 2019 conversation between the applicant and representatives of the OMDC, even were the court to accept that the statements were made and that they evidence some form of bias as against evangelical Christians, are not evidence of potential bias held by the director, who was not present for that call.
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