August 26 – Reasonable Apprehension of Bias

“The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71.

In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned:

[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial.  There is a strong presumption that judges have conducted themselves fairly and impartially.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.  Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias.  In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]

A.M. v. J.M.,2016 ONCA 644 at 55-56.