Stemming from the remarkable decision of the Federal Court in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2025 FC 18 (CanLII) (“Attaran”), this blog post will deal with strategic considerations around raising an allegation of reasonable apprehension of bias during an administrative hearing, and other important take away lessons from Attaran.

Context of the Attaran Decision

In January 2025, Justice Brown of the Federal Court released his decision regarding the judicial review of a Canadian Human Rights Tribunal (“CHRT” or “Tribunal”) decision dismissing a complaint filed by Professor Amir Attaran pursuant to the Canadian Human Rights Act (“CHRA”).

After 22 days of hearing before CHRT, Professor Attaran’s complaint was dismissed. Suffice it to say that throughout the hearing, there were some heated exchanges between Professor Attaran, who is a practicing lawyer and was self-represented during the course of the hearing, and counsel for the Respondent, representing the Attorney General. During these exchanges, the Tribunal member made several interventions and ruled on various objections. In response to some of these objections, Professor Attaran indicated that he felt that the intervention by the Tribunal was unconsciously biased against his expert witness who was a racialized woman in distinction to a white male expert who testified for the Respondent.

While Professor Attaran raised his concern on the record, he did not move to seek recusal of the adjudicator. As a result, after an adjournment and submissions from opposing counsel, the Tribunal did not render a decision on recusal or the matter of bias. Instead, the Tribunal issued a directive relating to the decorum of the remainder of the hearing applicable to all parties.  The Tribunal heard the remainder of the evidence. In its reasons for decision, the adjudicator dismissed Professor Attaran’s complaint. After disposing of the merits of the complaint, however, the adjudicator went on to provide a lengthy addendum  (“the Bias Addendum”) explaining the reasons why he felt that he was not biased towards the complainant.

The relevant portion in the Bias Addendum, showing the reasoning of the Tribunal’s thinking regarding its own bias (or lack thereof) is quite exceptional and merits review.  Despite being ancillary to the decision, it was found to be the fatal flaw in the decision read as a whole (see: para 42 of the Federal Court’s decision):

[413]      Before describing how the matter was resolved, I feel the need to speak on the record from a personal perspective. Allegations of racial bias are very toxic in today’s world. The mere allegation of such impropriety carries with it significant stigmatization and it is often very difficult for the accused to achieve redemption because the allegation, though difficult to prove, is also quite difficult to disprove. My personal reputation was impugned by Dr. Attaran’s allegation, so I wish to reply to defend myself. Firstly, I do not observe Dr. Attaran to speak with an accent or differently from anyone else in North America. He was born and raised in California and educated and employed at some of the most prestigious universities in the English-speaking world. I have never met Dr. Attaran in person. I have only seen him on a video screen. He does not even appear to me to be a visible minority. Perhaps it might be different in person. I also highly doubt that I have a subconscious bias against people with a Persian ethnic background. Some of my closest friends are from Iran, including my college roommate who has remained a lifelong friend and participated as a groomsman at my wedding. In the absence of a motion for my recusal, I did not view the allegation as being serious. I perceived it more as an attempt to intimidate me, which it did not.”

Upon judicial review, the Federal Court notes that the Bias Addendum was not the subject of written submissions, and the parties did not have an opportunity to comment upon it before it was rendered. It reads, moreover, like a defense regarding a personal slight on the adjudicator’s character for which he was seeking vindication. Justice Brown determined that the personalization of the adjudicator’s approach was inconsistent with the requirement to assess reasonable apprehension of bias on an objective standard. Accordingly, the decision of the CHRT was set aside for violating procedural fairness.

Strategic Considerations in Raising Bias

For reasons that may seem obvious based on the content of the Bias Addendum, the Federal Court determined that the Tribunal’s decision was procedurally unfair and should be set aside. In coming to its decision, however, the Court made certain comments critical of the way Professor Attaran raised his allegation of reasonable apprehension of bias.

With respect, I believe the way Professor Attaran raised his reasonable apprehension of bias concern was appropriate. Raising bias in the context of hearing is somewhat difficult to navigate in practice. As a matter of law, as the Federal Court rightly points out, an apprehension of bias must be raised at the first available opportunity. In Attaran, however, one of the issues in contention was whether a motion of recusal must also immediately and necessarily follow a comment or objection that raises reason apprehension of bias. Justice Brown of the Federal Court took exception to the fact that Professor Attaran raised his concern regarding unconscious bias, indicating that  he would address it “… in the future on the totality of the evidence.”

According to Justice Brown, the appropriate manner in which reasonable apprehension of bias should be addressed is as set out by the Federal Court of Appeal (FCA) in its decision of International Relief Fund for the Afflicted and Needy (Canada) v Canada (National Revenue), 2013 FCA 178 (“IRFAN Canada”). In IRFAN Canada, the FCA noted that reasonable apprehension of bias must be raised before the decision maker, and one should not wait to raise an apprehension of bias issue following the decision only when that decision is found to be unfavourable to the applicant. The logical implication of the FCA’s decision in IRFAN Canada is that it is improper not to raise a reasonable apprehension of bias before the decision maker him or herself and then lie in wait to raise the issue for the first time upon appeal or judicial review. This, however, is not at all what Professor Attaran did.

More specifically, what Professor Attaran indicated was that while he raised on the record an issue of unconscious bias before CHRT, he was not prepared to bring a motion for recusal. Contrary to the suggestion of Justice Brown, there was no procedural failing on Professor Attaran’s part. Specifically, there is no clear jurisprudence that sets out the moment at which a recusal motion must be brought by the party raising a bias concern. To the contrary, the jurisprudence raised by the respondent ,i.e. Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al., 2006 NBCA 61 (CanLII) (“Rothesay”), at para 14, does not clarify the matter.

In Rothesay, the New Brunswick Court of Appeal indicates that a failure to raise a reasonable apprehension of bias allegation in a timely fashion may result in a waiver of the right to rely on bias subsequently to the attack decision. It does not specify, however, when a recusal motion should be brought. More specifically, the choice that Professor Attaran made to raise the reasonable apprehension of bias, or as he called it, an unconscious bias issue, at the first opportunity and then wait before raising a recusal motion suggests the need to deliberate upon the matter of  whether an apprehension of bias (which must be raised in a timely manner) amounts to a basis for recusal.

In other words, while it is incumbent on a party to raise a reasonable apprehension of bias as soon as possible, it may not be the case that every matter that signals some apprehension of bias is sufficient to give rise to a motion for recusal. It must be understood, as a practical matter, that bringing a recusal motion can be cumbersome and time-consuming. Often, it requires review of a transcript, filing of written submissions, and reliance on authorities as well as an opportunity for the responding party to respond to the motion. Whereas it is not advisable or efficient to wait indefinitely before raising a recusal motion, IRFAN Canada merely addresses the question of when to put the decision maker or tribunal on notice of the bias concern, as opposed to the precise moment when a recusal motion must be made.

Important Takeaways from Attaran

Based on Attaran we set out below some considerations to bear in mind when raising an issue of unconscious bias or reasonable apprehension of bias:

1.      Whether you call it unconscious bias or reasonable apprehension of bias, the test that applies in assessing the relevant form of bias is the “reasonable apprehension of bias” test based on the objective standard set out by the Supreme Court in the decision of Committee for Justice & Liberty v Canada (National Energy Board) 1976 CanLII 2 (SCC), that  “. . . 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”.

 

2.      Do not raise a reasonable apprehension of bias concern lightly. Should you raise a bias concern regarding a decision maker without sufficient factual foundation, it may undermine your credibility in the hearing process, and will also make for an awkward tension during the hearing itself. One should be careful to frame bias concerns raised during the course of the hearing in the form of apprehension of bias as opposed to an actual bias allegation unless there is clear evidence of actual bias.

 

3.      Remember, that there is a legal obligation to raise a reasonable apprehension of bias at the first available opportunity. This means that one should not wait hours or days when raising and apprehension of bias concern. As a practical matter, it may be difficult to raise an apprehension of bias concern within minutes or seconds of an objection and often one may need to take stock of events before raising such a concern on the record. This was the approach adopted by Professor Attaran.

 

4.      It is illustrative that an adjudicative decision-maker sitting as a member of the CHRT would subscribe to the discriminatory tropes that appear in the Bias Addendum to justify his personal belief that he is not racist. It is both ironic and perhaps laudable to some degree that the adjudicator felt the need to write a justificatory note about his open-mindedness and nondiscriminatory approach. 

 

5.      The laudable part of the addendum is that it gives the reader a rare insight that is absent normally from routine decisions. In an employment context, for example, one often receives decisions with no rationale whatsoever such that it is necessary to infer intention based on circumstance and context. In Attaran, the adjudicator’s Bias Addendum provides a clear insight into his motivation and subjective thinking. If an adjudicator sitting on one of the highest human rights bodies in Canada holds such a defensive, reactive, and stereotypical response to concerns of racism, it is not unreasonable to conclude that such attitudes may be pervasive throughout various forms of non-adjudicative decision making in Canada involving persons with little or no human rights training or awareness.

 

6.      When raising an allegation of reasonable apprehension of bias, look to other examples of anecdotal evidence and or statistical or systemic evidence of bias that may be demonstrated by the same decision maker or the same body. When raising bias or reasonable apprehension of bias, it is important to be specific.  One should raise fact-based concerns, which demonstrate on their face an unusual or differential treatment by the decision maker with respect to a specific issue.

 

7.      Whether or not you are represented by a lawyer, you should expect that a question of recusal may arise during a hearing once it is triggered by a concern of reasonable apprehension of bias that is raised. Anticipating the possibility that recusal may be an option, apprehension of bias concerns raised during the hearing should be done in a diplomatic and strategic manner, as recusal will force a de novo (new) hearing.

 

8.      Once you have raised a matter of reasonable apprehension of bias to the attention of the decision maker, and you believe that the issue has not been satisfactorily resolved or the conduct of the decision maker has not changed, then you must be prepared to make a recusal motion. Although in Attaran, the circumstances did not prompt the complainant to insist on raising a recusal motion, such a motion could still have been raised by him at a subsequent time during the hearing. The decision in Attaran does not help to identify when or whether a complainant’s right to raise a bias concern has been waived because of delay.

 

9.      Allegations of reasonable apprehension of bias, even where they are seriously felt on the part of one of the parties to the litigation, should not be expected to prevail without evidence and proper support. Where possible, on the same day that you seek to raise a reasonable apprehension of bias concern, you should review your notes and possibly obtain a copy of the relevant transcript if that facility exists. As a compromise measure, one may also raise the concern of reasonable apprehension of bias to the attention of the decision-maker and reserve your right to raise a recusal motion subject to a further review of your notes or once the relevant transcript can be obtained. A logical trigger for filing a recusal motion during the course of a hearing may be if the conduct complained of repeats itself following clear notice brought to the attention of the decision-maker.

 

10.  Remember to always act respectfully towards the Tribunal, particularly when raising apprehension of bias concerns. If your bias concern rises to the level that will result in the need to bring a recusal motion, you should be aware that your recusal motion may fail.  Accordingly, it is imperative that you maintain a constructive relationship with the decision- maker even in the aftermath of a failed recusal motion.