If a reasonable person would think it is likely a decisionmaker in a case may be biased, can the biased decisionmaker’s decision ever stand? According to the Ontario Court of Appeal in Vento Motorcycles Inc v Mexico, the answer is a resounding no. This decision elaborates on this most elemental building block of procedural fairness, making it a must read for administrative decisionmakers and those involved in administrative law and arbitration proceedings.
Vento made a claim against Mexico under the North American Free Trade Agreement and argued they have been driven out (pardon the pun) of the Mexican motorcycle market. The claim went to commercial arbitration. Three arbitrators were appointed to the panel and Vento’s claim was dismissed. Unknown to Vento, Mexican officials, including Mexico’s counsel at the arbitration, called and corresponded with one of the arbitrators, Mexico’s appointee, several times before and after the arbitration, including congratulating one another’s professional successes. Vento subsequently sought to set aside the award on the basis there was a reasonable apprehension the arbitrator was biased. The Ontario Superior Court of Justice found there was a reasonable apprehension that one of the arbitrators was biased but declined to set the arbitration award aside. The rationale behind the Ontario Superior Court of Justice’s decision was premised on the assumption that the other two members of the Tribunal were unbiased – in other words the bias of one arbitrator did not taint the other two arbitrators and therefore did not undermine the reliability of the decision or cause any real injustice.
Writing for the Court of Appeal, Huscroft J.A. explained that though procedural irregularities in commercial arbitration may not raise the same concerns as they do in administrative law, both arenas are subject to the duty of procedural fairness. While the extent of procedural fairness required in a given scenario varies depending on the context, certain elements of procedural fairness are non-negotiable and apply equally in all contexts. One irreplaceable pillar of procedural fairness is the requirement that a decisionmaker must not be biased. This is because, as set out in a 1924 English decision R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256 (E.W.H.C.), justice must not only be done but it must also be seen to be done. Accordingly, a reasonable apprehension of bias is not contingent on demonstrating the decisionmaker is actually biased. Instead, decisionmaker bias is established objectively if an informed person would think it is likely the decisionmaker would not decide fairly.
Can a decisionmaker’s breach of procedural fairness be remedied? The Court of Appeal confirmed that some breaches can, in rare and exceptional circumstances, be remedied, while other breaches of procedural fairness can never be remedied. Decisionmaker bias falls into the latter category regardless of whether the biased decisionmaker was part of a panel of decisionmakers. One decisionmaker’s bias taints the entire panel, because it is impossible to know how much the biased decisionmaker influenced the decision. Once there is a reasonable apprehension of bias, the decisionmaker is disqualified and if a decision has been made it is void— No exceptions. The adjudicative process is so fundamentally undermined by decisionmaker bias that the Court of Appeal determined that courts do not have the discretion to uphold a decision rendered in a situation of a reasonable apprehension of bias.
The key takeaway from this decision is that not all breaches of procedural fairness have the same consequences. Some can be remedied, and others cannot. The key distinguishing factor appears to be whether the breach of procedural fairness rises to the level of fundamentally undermining the integrity and legitimacy of the adjudicative process.
