Date: 19980828
Docket: IMM-3725-97
Between: Yuri GRIGORENKO
Applicant
| And: Minister of Citizenship and Immigration |
Respondent
REASONS FOR ORDER and ORDER
DENAULT J.:
[1] The main questions raised in this application for judicial review are very limited. I can summarize them as follows: who must apply the test of whether an informed and reasonable observer would have a reasonable apprehension of bias, as formulated by the Supreme Court,1 the person who is asked to recuse himself or herself or the person who is asked to review that decision? A related question is: if this obligation lies first with the member whose impartiality is challenged, does he or she commit an error in law by applying the subjective test to the assessment of the apprehension of bias rather than making an objective assessment? What is the situation in the case at bar?
[2] The facts are very straightforward. The Convention Refugee Determination Division (the panel or the member), which had before it a claim by an Israeli citizen of Ukrainian nationality, dismissed his application, stating that it did not believe his testimony and that there was no credible basis for his case. The issue in this case essentially concerns an motion for recusal made at the beginning of the hearing before the Refugee Division on July 7, 1997 against one of the members of the panel, Jacques La Salle.
[3] There was nothing in the motion for recusal to substantiate any personal conflict between the applicant and the member of the panel. The applicant"s allegation of a reasonable apprehension of bias with respect to Jacques La Salle was based on the following facts: Mr. La Salle"s stay in a kibbutz in Israel between 1969 and 1972, his position as director of information for the Canada-Israel Committee in Montréal from 1972 to 1976 and 1981 to 1985, a private conversation which counsel for the applicant allegedly had with the member at an unspecified time, and an article in the newspaper La Presse entitled [TRANSLATION] "A Member of the Refugee Division Accused of Bias".2
[4] Essentially, after acknowledging what he had done more than 12 years before, saying that the statement attributed to him was misinterpreted, stating that had heard several cases from Israel including [TRANSLATION] "favourable decisions in cases from Israel, in which the claimants were originally from Ukraine or Russia, or the former USSR", the member stated the following (tribunal"s record p. 576):
| The way in which I intend to make my decision today is the same as in all the cases I hear, whether from Israel or elsewhere. My sole intention is to hear all of the evidence which will be presented before me today. |
| My decision and my colleague"s decision will be based solely on the documentary and testimonial evidence which will be presented. That is the only criterion. |
The motion for recusal was dismissed and, after the hearing, the claim for refugee status was also rejected.
[5] The manner in which the test of bias should be applied is now well known since it has been the subject of at least two decisions by the Supreme Court of Canada, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 and R. v. S. (R.D.), [1997] 3 S.C.R. 484. In the first decision, Mr. Justice de Grandpré stated the test which is now accepted (p. 394):
| . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through -conclude. |
In R. c. S. (R.D.), Mr. Justice Cory added (p. 524):
| Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair. |
[6] This is where the dispute between the parties arises. Counsel for the applicant alleges that in performing its analysis the panel erred in law by applying only the subjective test in finding itself impartial; moreover, it failed to ask itself whether a well-informed and reasonable person would also have concluded that it was impartial, which is the objective element of the test. Counsel for the respondent argues that the test established in the case law should be applied not by the person against whom the motion for recusal is made, but by the court whose task it is to ascertain whether that person"s attitude may give rise to a reasonable apprehension of bias;3 in other words, a member of a panel or a judge who presides at a hearing and who is asked to recuse himself or herself by one of the parties for apprehension of bias is not the observer described in the case law.4
[7] I must state at the outset that the position argued by counsel for the respondent is baseless, might well lead to absurd situations if applied, and certainly does not reflect the practice of the courts or the case law.
[8] It goes without saying that the criteria for assessing the apprehension of bias apply not only to the judges who are asked to review the decision but also to the person himself or herself against whom the apprehension is alleged. In R. v. S. (R.D.), Cory J. wrote:
| It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them. . . . In order to fulfil this duty the decision-maker must be and appear to be unbiased (my emphasis). |
It is clear from this passage that despite the difficulty, more apparent than real, of placing himself or herself in the shoes of an informed and reasonable observer, that is nevertheless what a judge who is asked to recuse himself or herself by reason of appearance of bias must do. In fact, it is commonplace for a judge to recuse himself or herself not only because of a real or apprehended conflict with a party but also because of the appearance of an apprehension of bias. For a reference in the case law, we need only read the remarks of Mr. Justice Teitelbaum who was asked to recuse himself in Chief Victor Buffalo et al. v. R., F.C. T-2022-89, a decision dated December 8, 1997, affirmed by the Federal Court of Appeal on May 12, 1998 (A-893-97). After speaking to each of the grounds for recusal, he said (p.32):
| I cannot conclude, after hearing the present application to disqualify myself, that my presiding over these two cases would be likely to raise in the mind of a reasonably informed person an apprehension of bias. |
Lastly, I consider that if only the judge who is asked to review the decision of a tribunal who refused to apply the objective criterion of the apprehension of bias were required to do so, the party which was not satisfied with a judge"s decision to recuse himself or herself after analysing the subjective test would be required to have the question of the reasonable apprehension of bias redetermined by another forum using the informed and reasonable observer test. This is certainly not what the Supreme Court intended in stating this test.
[9] In the case at bar, counsel for the applicant alleges that the member, Mr. La Salle, erred in formulating the legal principle and applying a subjective test in assessing the apprehension of bias.
[10] First, I consider that there is nothing which requires the panel to state the applicable tests in its oral or written decision. As long as it is clear from the decision that the panel had regard to the tests, there are no grounds for this Court to intervene. In the case at bar, it should be noted that the member was aware of or should have been aware of the applicable test because counsel for the applicant clearly pointed it out to him.5 As I previously stated (paragraph [4]), the way in which the member dismissed the motion for recusal could no doubt have been clearer if he had said that he was examining the question of apprehension of bias from the standpoint of the informed and reasonable observer. I consider, however, that this was precisely what he did when he referred to the length of time which had elapsed since his participation in the Canada-Israel Committee 12 years before, and mentioned the favourable decisions he had made regarding claimants from Israel. The method which he stated he wished to follow, namely making his decision based on the evidence before the panel, is consistent not only with the basic rule that a judge"s decision must be made first on the facts which are submitted to him or her, but also with what Cory J. of the Supreme Court recalled in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) , [1992] 1 S.C.R. 623, at page 639:
| . . . the courts must take a flexible approach to the problem so that the standard which is applied [to determine whether there is bias] varies with the role and function of the Board which is being considered. In the end, however, commissioners must base their decision on the evidence which is before them. Although they may draw upon their relevant expertise and their background of knowledge and understanding, this must be applied to the evidence which has been adduced before the Board. |
[11] As an additional argument, the applicant alleged that the panel had not properly assessed the evidence in finding him not credible. The Court is not convinced that there are grounds to intervene on this issue.
[12] For these reasons, the application for judicial review is dismissed. The parties have not asked the Court to certify a serious question of general importance within the meaning of section 83 of the Immigration Act.
PIERRE DENAULT
J.F.C.C.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3725-97
STYLE OF CAUSE: YURI GRIGORENKO v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 11, 1998
REASONS FOR ORDER AND ORDER BY DENAULT J.
DATED AUGUST 28, 1998
APPEARANCES:
JACQUES BEAUCHEMIN FOR THE APPLICANT
MICHÈLE JOUBERT FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, FOR THE APPLICANT
PAQUIN, JOBIN, BRISSON & PHILPOT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________1 In Committee for Justice and Liberty v. National Energy Board and R v. S. (R.D.) which are considered later in the decision.
2 This article, subtitled [TRANSLATION] "He dismisses all political asylum claims by Israelis", referred to a recent decision of this Court, noting "in passing" that the member was the former husband of the Canadian Minister of Immigration, Lucienne Robillard, and concluded by saying that [TRANSLATION] "according to a survey of decisions by the Immigration and Refugee Board in Montréal between July 1994 and June 1995, claimants from Israel were granted political asylum in 52% of cases except if they went before Jacques La Salle. In those cases, the acceptance rate was zero".
3 Paragraph 33 of the defendant"s supplementary memorandum of argument.
4 Paragraph 35 of the defendant"s supplementary memorandum of argument.