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Bias - 'Institutional Bias'. Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
The court considers this s.2(e) 'fair hearing' Bill of Rights issue, here in the context of 'institutional bias':(1) Revocation by the Minister - the right to an independent and impartial decision maker
[83] In the current revocation process, the Minister delegates their authority to make a decision regarding revocation of a person’s citizenship to a senior analyst. Ms. Tan submits that neither the Minister nor their delegate is an independent and impartial decision maker. She points to the fact that senior analysts are employees of IRCC and work in the same IRCC branch that identifies individuals whose citizenship may be subject to revocation, investigates the case and makes the decision as to whether the individual’s citizenship should be revoked. Ms. Tan relies on the Federal Court’s finding in Hassouna at paragraph 102 that an "“adjudicator who must decide on a balance of probabilities whether a misrepresentation has occurred”" and who "“has already determined on a balance of probabilities that a misrepresentation occurred by virtue of having sent out the initial notice”" may be perceived as biased and lacking independence and impartiality.
[84] In Hassouna, the Federal Court was faced with a revocation process in which the Minister was the investigator and decision maker in every case. As a result, the Court’s analysis of independence and impartiality focussed on the delegate’s dual role. Unlike the citizenship revocation process at issue in Hassouna, an affected person now may choose to have the revocation of their citizenship determined by the Federal Court, an independent judicial body.
[85] Ms. Tan’s argument that the current revocation process lacks judicial independence and impartiality is in large part answered by the amendments to section 10 and the ability of a person facing revocation to have the Federal Court decide their case. Contrary to Ms. Tan’s submission, this amendment to the Citizenship Act is a material change from the previous regime. Where the Federal Court is the decision maker, the determination of whether fraud or misrepresentation occurred in obtaining Canadian citizenship is not made by the same entity that identified and investigated the case.
[86] On appeal, Ms. Tan does not question the independence and impartiality of the Federal Court and its judges. She narrows her argument to the Minister’s assessment of a person’s request for special relief based on personal circumstances. Ms. Tan argues that the availability of the Federal Court process does not respond to her contention that the Minister and his delegates lack the independence and impartiality necessary to ensure a procedurally fair decision in response to a request for special relief, undermining the procedural fairness of that determination contrary to paragraph 2(e) of the Bill of Rights.
[87] I agree with Ms. Tan that the Minister and their delegates do not enjoy security of tenure and remuneration, nor do they control their own administrative process, three conditions of judicial independence: Democracy Watch v. Canada (Attorney General), 2024 FCA 75 at para. 14; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 SCR 673. However, full judicial independence is not required of every tribunal or decision maker, in respect of every decision, in order to establish a fair hearing in accordance with the principles of fundamental justice and paragraph 2(e) of the Bill of Rights: Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36 at paras. 21-22. Otherwise, any number of tribunals and decision makers entrusted by Parliament with significant decision-making responsibilities would be prevented from discharging their mandates. This is an untenable and impractical result.
[88] In my view, regard must be had in each case to the particular decision maker and the decision in question to properly assess whether the procedures followed by the Minister or a delegate respect the duty of procedural fairness and whether the affected person had a meaningful opportunity to present their case fully and fairly: Baker at para. 30.
[89] Ms. Tan attacks the independence and impartiality of a Minister’s delegate in respect of the determination of an affected person’s request for special relief from revocation.
[90] However, in this role, the delegate is tasked with making a discrete decision and the decision-making process begins if and when the affected person makes submissions to the Minister in response to the notice required under subsection 10(3) of the Citizenship Act. There is no prior investigation of the person’s special circumstances. Ms. Tan’s argument that a delegate lacks impartiality centre on IRCC’s prior investigation of revocation for possible fraud or misrepresentation but an affected person can choose have the revocation decision made by the Federal Court. In my view, a person who elects to have their case decided by the Minister pursuant to paragraph 10(3.1)(b) cannot subsequently claim they have not been afforded procedural fairness when the Federal Court process by way of action before an independent and impartial court with its attendant rights to full disclosure and an oral hearing was available to them for the revocation decision: Chelsea (Municipality) v. Canada (Attorney General), 2024 FCA 89 at para. 36, leave to appeal to SCC refused, 41368 (March 6, 2025); Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 90; Sigalas v. Sigalas Selas, 2025 ONCA 75 at para. 28. This was the Federal Court’s conclusion and I find no error in the FC Decision in this regard.
[91] While not independent of IRCC, a delegate does not inherently lack impartiality in deciding a request for special relief from revocation. It is always open to an applicant to allege a lack of impartiality or a perception of partiality on the part of a particular delegate but Ms. Tan has not raised this allegation other than in one brief reference. I find no evidence in the record that would support such an allegation. Ms. Tan’s concerns regarding the senior analyst’s decision regarding her personal circumstances are addressed later in these reasons and do not, in any event, speak to a lack of impartiality.
[92] In summary, I find no error in the Federal Court’s conclusion that the revised structure for revocation of a person’s citizenship pursuant to section 10 of the Citizenship Act does not lack independence and impartiality. The ability of an affected person to have the revocation of their citizenship determined by the Federal Court, and to have an assessment of their personal circumstances made by an impartial decision maker in every case if special relief is requested, fully responds to Ms. Tan’s arguments. . R. v. Currado
In R. v. Currado (Ont CA, 2023) the Court of Appeal considered a defence allegation of 'institutional bias':[24] The appellant also places reliance on the Supreme Court of Canada’s judgment in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114. He submits that the institutional bias described in Lippé finds a counterpart in this case in the LPS’s institutional conflict of interest arising out of its role as victim and investigator.
[25] Institutional bias, as described in Lippé, can have application in the context of an abuse of process claim based on the residual category. A conflict giving rise to an abuse of process within the residual category can arise where the conflict flows from generally applicable statutory mandates or structures, and not from any concerns particular to a specific fact situation. Section 19(2) of the Special Investigations Unit Act, 2019, S.O. 2019, c. 1, Sched. 5, which requires that police forces not investigate member police officers for certain serious offences, can be seen as a statutory recognition that the risk of institutional bias, either for or against a charged officer, is, in the circumstances addressed by the Act, so serious as to preclude a police force from investigating the matter.
[26] Beyond describing the concept of institutional bias, Lippé is of no assistance in this case. Lippé involved a challenge under s. 11(d) of the Charter to the independence and impartiality of municipal courts in Québec. Section 11(d) applies to courts who are adjudicating charges against individuals. The concepts of impartiality and independence, as considered in Lippé, have no application to the LPS, an investigative arm of the administration of justice. . Haudenosaunee Development Institute v. Metrolinx
In Haudenosaunee Development Institute v. Metrolinx (Ont CA, 2023) the Court of Appeal considered an argument about 'institutional bias', which amounts to an argument that the Court of Appeal itself was conflicted in ruling on a matter involving the cutting down of Osgoode Hall (the site in Toronto of the Court) trees:[19] In oral argument, Metrolinx underscored that it was not asserting individual bias on the part of any judge or judges on this court. Metrolinx also emphasized that there is no allegation of actual bias. Rather, Metrolinx asserted that there was a reasonable apprehension of institutional bias – that is, that the Court of Appeal for Ontario as an institution would not be able to fairly determine any issue in relation to the Osgoode Hall station, and in particular the removal of trees from the Osgoode Hall property.
[20] In support of this position, Metrolinx referred to a letter dated December 5, 2022 from Associate Chief Justice Fairburn of this court to the Attorney General of Ontario. In the letter, the Associate Chief Justice indicates that she is speaking on behalf of the Court of Appeal and that Chief Justice Morawetz of the Superior Court of Justice shares the views she expresses.
[21] The gist of the Associate Chief Justice’s letter – to the Attorney General, not Metrolinx, we emphasize – is that both the Court of Appeal and the Superior Court of Justice have a concern about “the structural integrity of Osgoode Hall”, “the safety of the occupants of Osgoode Hall and those who attend at Osgoode Hall” and whether “justice can be accessed and delivered from Osgoode Hall if this project proceeds as contemplated.” The word “trees” is not mentioned in the letter.
[22] The test for reasonable apprehension of bias was stated almost 50 years ago by de Grandpré J. (dissenting, but not on this point) in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:... 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.
See also: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 20. [23] There is a presumption of judicial impartiality. As expressed by McLachlin C.J. in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22:The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [24] In our view, Metrolinx’s position is far removed from meeting this stringent standard. Most judges, including appeal court judges, focus entirely on their adjudicative role. A small number, especially chief justices and associate chief justices, have a second, and different, role – administering the court. In this latter role, these judges must communicate and interact with many external constituencies – governments (especially attorneys general), professional organizations like the Canadian Bar Association and the LSO, smaller legal organizations that represent particular groups of the legal profession, the media, law schools, and many others. All of these relationships, contacts and communications are administrative tasks, not adjudicative.
[25] It follows that the “informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that the Associate Chief Justice’s letter to the Attorney General would not give rise to any concern about the court’s independence and impartiality. The letter does not raise any spectre of judicial bias.
[26] Metrolinx’s argument is, in effect, that the letter casts a shadow over the independence of the entire Court of Appeal with respect to this litigation. In other words, the letter creates a reasonable apprehension of bias that precludes all judges of the court from hearing the motions and appeal. Hence Metrolinx posits the remedy of designating three judges of the Superior Court of Justice from outside Toronto as ad hoc judges of the Court of Appeal to hear all proceedings relating to the motions and appeal.
[27] We did not give effect to this argument. It is misconceived and misunderstands the role of the Ontario judiciary, which is, always, to hear and determine motions and appeals fairly and impartially. Concerns about the practicalities of administering court hearings amidst an ongoing construction project do not cast any aspersions on the court’s ability to perform its adjudicative role.
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