Committee for Justice and Liberty v. National Energy Board: Application was made under the NEB Act for construction of a natural gas pipeline. The chairman of the board at the time of the application had been involved (as member of a Study Group) in discussions and planning for the applicant company. • The usual situations of prior involvement are: (i) Where the decision maker has already heard the matter b/f the tribunal, including rehearing after judicial review or appeal - Test for earlier involvement: Can the decision maker draw back and bring an impartial mind to bear on the issue to be determined? (Township of Vespra v. Ontario) - Must look at all the circumstances (ii) Where the decision maker has been involved in the investigation and decision to proceed w/ the matter being heard.
II(5) Attitudinal bias Great Atlantic & Pacific Co. v. Ontario (HR Commission): employee P complains to HRC re sex discrimination. HRC did intensive investigation and then created a committee to hear the complaint. B, a lawyer with a background in sex discrimination, was appointed to the Committee. She had been party to a similar complaint before the HRC prior to her appointment. D (employer) objected to her being on the board claiming that she was an advocate for P’s position and that she herself was a complainant before the HRC. • There was a reasonable apprehension of bias b/c of her involvement in another complaint • The court implied that b/c the area was novel, she may be inclined to judge the case in a certain way in order to create a precedent for her own complaint Imperial Oil v. QB (MOE): IO caused env. pollution so the Minister ordered it to prepare a decontamination measure study at its own expense. IO argued bias b/c the Minister was involved in prior decontamination work and was being sued by the present owners of the land. • The contextual nature of the duty of impartiality adjusts to reflect the context of a ADM’s activities and the nature of its functions: (i) Nature of the functions to be performed: the Minister is performing a mainly political role which involves his authority & duty to choose the best course of action in the public interest; he is not performing an adjudicative function; on the contrary he is performing functions of management. (ii) Legislature’s intention: legislation defines Minister’s role as requiring him to give notice to the person, receive and review representations and info submitted by that person and give reasons to that person for his decision. (iii) Nature of the personal interest: Any interest they may have had in recovering the costs of the proceedings was too remote and attenuated to give rise to a reasonable apprehension of bias; the only interests the Minister was representing were the public interest and the interest of the state in protecting the env/t. • Duty of impartiality applying to the Minister in this case is NOT equivalent to the impartiality required of a judge or adjudicative admin ADM