I have previously written about "bias" at Reasonable Apprehension of Bias - A Tough Subject. I have come across a couple of more recent cases on the subject that describe not only the test for bias but what type of conduct can result in a finding that a reasonable apprehension of bias on the part of the adjudicator exists.
The first case is Concordia Hospital v. Concordia Nurses Local 27 of the Manitoba Nurses' Union (November 24, 2004, Man. Q.B.). This case discusses how the "form" of a decision and the manner in which it is written, including its focus, can result in a finding of reasonable apprehension of bias. In addition, the claim of bias focuses "principally on a comment made by the chairman in a letter that he sent to the employer nominee on July 29, 2003, during the deliberative process" that included the following:
My view from the outset and one can even refer to questions I posed during the hearing, was that the position of the Nurses in this situation should be protected properly. ... I am willing to meet and discuss matters even though I am fixed in my opinion. [Emphasis added]
The employer supported its reasonable apprehension of bias allegation by pointing to a number of passages in the award. The Court commented:
The question really is, does the form of this award add support to the argument that the chairman has not maintained the appearance of being a disinterested arbitrator? Significant parts of the award are devoted to the passionate criticism of health care policies generally and specifically the policies or actions of third parties who were related to but not part of the grievance. The form of the award is also unusual. It is filled with exclamation marks that are frequently attached to disjointed criticisms of both the Hospital and third parties, such as the College of Physicians and Surgeons of Manitoba and the WRHA.
Ultimately, the Court overturned the arbitration award and held that:
In summary, my reading of the award as a whole, particularly when it is read together with the chairman's letter, leads one to conclude that the arbitrator had become a judge in a cause to which he was committed. Whether that cause was limited to protecting the role of nurses in the health care system or included generally improving health care policy in Manitoba does not matter. He has generated a reasonable apprehension that he was not disinterested.
The second case is McMillan v. Castro (C.A., 5th Circuit, April 19, 2005). This is a US case, that discusses those circumstances in which judicial questioning of witnesses or interventions can found a reasonable apprehension of bias finding. A number of earlier cases are reviewed as illustrations of types of acceptable and non-acceptable judicial conduct during a trial. It must be remembered that, in the US, the jury system is present whereas in Canada most actions are decided by a judge alone.