Institutional Bias: The Applicability of the
Nemo Judex Rule to Two-Tier Decisions
David Phillip Jones*
1. Introduction
The tremendous increase in the state’s intervention in all aspects
of human activity over the past fifty years has been accomplished
by the delegation by Parliament of a very wide range of discretionary
powers. Frequently, Parliament has provided an appeal from the
decisions taken by its delegates. As the extensive jurisprudence on
the efficacy of privative clauses indicates, Parliament has not always
seen fit to permit such an appeal to the courts, but has preferred
to leave the final decision with another level of the administration.
Such administrative appeals may or may not be a better vehicle
than an appeal to the courts for determining whether the initial
decision is either correct or fair. Nevertheless, serious problems may
arise where there is overlapping between the membership of the
original decision-making body and the body hearing the appeal there-
from –
a phenomenon which might be called “institutional bias”.
Does the maxim nemo judex in sua causa debet esse’ apply in such
circumstances?
The attempt to invoke the nemo judex rule to prevent institutional
bias must be seen in light of the remarkable upsurge in the number
of recent cases2 dealing with this second principle of natural justice.
There appear to be four principal reasons for this increased litiga-
tion.3
* Of the Bars of Alberta and the Northwest Territories; and of the Faculty of
Law, McGill University, Montreal.
3 No man should be a judge iA his own cause. This second principle of
natural justice is otherwise known as the bias rule or the nemo judex rule.
2At least eight cases involving the nemo judex rule have come before the
Supreme Court of Canada in the last decade: Ghirardosi v. Minister of High-
ways (B.C.) [1966] S.C.R. 367, (1966) 56 D.L.R. (2d) 469, 55 W.W.R. 750; King
v. University of Saskatchewan, infra, note 9; Blanchette v. C.I.S. Ltd (1973) 36
D.L.R. (3d) 561; Law Society of Upper Canada v. French, infra, note 12; P.P.G.
Industries v. A.G. of Canada (1976) 65 D.L.R. (3d) 354; Ringrose v. College of
Physician and Surgeons of Alberta, infra, note 4; The Committee for Justice
and Liberty v. The National Energy Board (1976) 68 D.L.R. (3d) 716; Morgen-
taler v. The Queen (1974, not reported on this point).
8 For a discussion of another aspect of the nemo judex rule see Jones, The
National Energy Board Case and the Concept of Attitudinal Bias (1977) 23
McGill L. 459.
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First, prior to the recent decision of the Supreme Court of Canada
in Committee for Justice and Liberty Foundation v. National Energy
Board,4 considerable confusion existed about the correct test for
bias. In that case, however, the majority of the Supreme Court of
Canada clearly held that the nemo judex rule is broken whenever
there is a reasonable apprehension of bias, and that there is no
further requirement that there also be a real likelihood of bias.5
The effect of this decision is to widen the applicability of the nemo
judex rule.
Secondly, it has not yet been finally determined in Canada
whether the rules of natural justice apply only to the exercise of a
judicial or quasi-judicial function. On the one hand, the concept of
a judicial or quasi-judicial function is notoriously difficult to define
with any precision. This makes it exceedingly difficult for counsel to
advise clients before litigation whether the rules of natural justice
even arguably apply, let alone whether they have been breached in
the circumstances. On the other hand, Canadian courts have not yet
satisfactorily dealt with the now numerous English cases” which
apply the rules of natural justice wherever the decision-maker has a
general “duty to be fair”, regardless of the characterization of the
function as quasi-judicial. No doubt, this latter lacuna can be directly
attributed to the infelicitous wording of section 28 of the Federal
Court Act 7 with which many of the recent cases have been concerned.
4 Supra, aote 2. Note that in this case the appellants had specifically dis-
claimed any allegation that Mr Crowe in fact was biased. Therefore there
could have been no real likelihood of his bias. Nevertheless, the Supreme
Court of Canada held that his previous participation in the Study Group would
raise a reasonable apprehension that he would be biased, and prohibited him
from sitting on the Board in the particular hearings there in issue. The
reasonable apprehension test was subsequently accepted to be correct by de
Grandprd J. writing for the majority of the Court in Ringrose v. College of
Physicians and Surgeons of Alberta [1976] 4 W.W.R. 712 (S.C.C.), even though
he had dissented on this point in the National Energy Board case. See also
de Smith’s comments on the proper test in Judicial Control of Administrative
Action 3d ed. (1973), 230-32.
5 For a discussion of the differences between the reasonable apprehension
and real likelihood tests for bias, see Metropolitan Properties Co. v. Lannon
[1969] 1 Q.B. 577, 599 per Lord Denning M.R., 606 per Edmund Davies L.J.
ISee, e.g., In re H.K. (An Infant) [1967] 2 Q.B. 617, 630 (C.A.); Regina v.
Gaming Board for Great Britain [1970] 2 Q.B. 417 (C.A.); Re Pergamon Press
Ltd [1971] Ch.388 (C.A.); Pearlberg v. Varty [1972] 1 W.L.R. 534, 547 (H.L.);
Bates v. Lord Hailsham of St Marylebone [1972] 1 W.L.R. 1373, 1378 (Ch.D.);
Regina v. Liverpool Corp. [1972] 2 Q.B. 299, 307-308, 310 (C.A.).
7 R.S.C. 1970, c.10. S.28(1) states:
“Notwithstanding section 18 or the provisions of any other Act, the Court
of Appeal has jurisdiction to hear and determine an application to review
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INSTITUTIONAL BIAS
Thirdly, the principles of natural justice are procedural rules
which are implied by common law. Their application and their
content yield to contrary Parliamentary provision, either express or
necessarily implied. Considerable argument, therefore, can arise in
construing the statutes under which Parliament or the provincial
legislatures have granted very numerous and often enormous discre-
tionary powers to various delegates. Regrettably, very little Canadian
legislation specifies in detail the procedure by which the delegates
are to exercise their discretionary powers, possibly because the
legislation itself is almost invariably drafted by that part of the
administration which subsequently will exercise the delegated pow-
ers. In many cases, therefore, the courts are faced with unnecessary
and difficult questions of statutory interpretation in order to de-
termine whether the principles of natural justice do or do not apply
to the exercise of a particular delegate’s powers.
Finally, the rules of natural justice may apply to an extremely
varied multitude of factual circumstances. It is often exceedingly
difficult to predict before litigation exactly what does constitute a
fair hearing in particular circumstances.
The purpose of this article is to examine the applicability of
the nemo judex rule to one particularly vexing fact pattern, the two-
tier decision. In the paradigm case, a committee which is entitled to
exercise a particular power (e.g., to discipline a member of a pro-
fession) appoints a subcommittee either (i) to investigate the facts
but make no judgment thereon, or (ii) tentatively to decide the
matter subject to a final hearing (or an appeal) before the parent
committee. The question then becomes, is the nemo judex rule
breached if members of the subcommittee also participate in the
parent committee’s deliberations. A similar fact pattern raises the
same issue. Is the nemo judex rule breached where there is an appeal
to a person or body which is reasonably apprehended to be unlikely
and set aside a decision or order, other than a decision or order of an
administrative nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings before a
federal board, commission or other tribunal, upon the ground that the
board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the
error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the
material before it.” (Emphasis added.)
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to deviate from the previous decision taken elsewhere in the decision-
making institution, even if no actual overlap of personnel occurs
between the two different decisions? Both of these fact patterns
might generically be labelled “institutional bias”.,
Attempts to obtain judicial review of decisions entailing insti-
tutional bias have been rare until relatively recently; and, further-
more, the courts have not clearly come to grips with the issues raised
by such allegations. For example, in 1969 the Supreme Court of Ca-
nada in King v. The University of Saskatchewan,9 rejected an attempt
to invoke the concept of institutional bias to strike down a particular
decision. There, the appellant argued that he had not been given a
fair hearing by a committee of the University Senate (which declined
to grant him a law degree) because a number of the members of
that committee had also been members of at least two previous
bodies which had considered his petition. 10 Although Spence J. ac-
cepted that the nemo judex rule was applicable to the Senate com-
mittee’s deliberations, he held that it had not in fact been breached
because:
It was inevitable that there would be duplication as one proceeded from
one body to another … of persons carrying out their ordinary duties as
members of the faculty of the University … . I am of the opinion that, in
such matters as were the concern of the various university bodies here,
duplication was proper and was to be expected, and I am not ready to
agree that such duplication would result in any bias or constitute a breach
of natural justice.”
8 See de Smith, supra, note 4, 227-29 for a discussion of the problems raised
by the phenomenon of institutional bias, which may also be called depart-
mental bias. Dickson J. in Ringrose, supra, note 4, 720, actually used the
phrase “institutional bias or participation by association” to refer to the
second type of bias.
9 [1969] S.C.R. 678, (1969) 6 D.L.R. (3d) 120; aff’g (1969) 1 D.L.R. (3d) 721, 67
W.W.R. 126 (Sask.C.A.).
‘0 King’s “appeal” was first heard by a special committee of faculty council
(composed of Messrs Spinks, Booth, Haslam, Tracey, Mann, Langley and
Pepper) which recommended that he be granted his degree. The executive
committee of faculty council (including both Dean Lang and Professor Pepper
from the College of Law, as well as all of the other members of the special
committee except Professor Tracey)
then rejected the special committee’s
recommendation. Finally, the plaintiff appealed to the Chancellor of the
University, Chief Justice Culliton, who treated it as an appeal to the University
Senate and set up a five-member Senate committee to dispose of the matter.
The members of the Senate committee included the President of the University
as well as two deans (Begg and Currie) who had all been members of the
executive committee.
11 Supra, note 9, 690-91.
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INSTITUTIONAL BIAS
Thus, Spence I., without referring to any test for determining
whether the nemo judex rule had been breached, simply rejected
the appeal. One must conclude, therefore, that the facts in this case
did not disclose any reasonable apprehension of bias.
Two more recent cases involving allegations of institutional bias
have posed considerably more conceptual difficulties for the Supre-
me Court of Canada. In both The Law Society of Upper Canada v.
French”2 and Ringrose v. College of Physicians and Surgeons of
Alberta,” the majority of the Court dismissed attacks on the validity
of particular decisions where institutional bias was alleged, despite
very strongly worded dissenting opinions. This division in judicial
opinion indicates a serious difference in the methods adopted by the
various judges in dealing with both the concept of institutional bias
and the nemo judex rule itself. This difference may be highlighted
by reference to the following four points.
First, in the particular fact pattern coming before the court, is
there a reasonable apprehension that the second decision-maker is
biased? Secondly, if so, has the nemo judex rule been ousted by
statute (either expressly, or by necessary implication) from applying
to the particular facts in question? Thirdly, if not, does the nemo
judex rule apply if, but only if, the subcommittee is making a
binding decision affecting rights (and not merely investigating facts
to be reported to the parent body) from which a strict appeal lies
to the parent body (which, therefore, would not be making the first
decision in the matter)? And, finally, does the applicability of the
nemo judex rule depend upon characterizing the function of either
the parent body or the subcommittee as being judicial or quasi-
judicial?
Let us turn, therefore, to an examination of the judgments in
these two cases.
2. The Law Society of Upper Canada v. French
In The Law Society of Upper Canada v. French, the respondent
had been found guilty of professional misconduct by the Discipline
Committee of the Law Society. Its report, and a recommendation
that Mr French be suspended for three months, was sent to Con-
vocation for final decision. All members of the Discipline Committee
were Benchers and therefore also members of Convocation. Two
12 [1975] 2 S.C.R. 767, (1975) 49 D.L.R. (3d) 1.
13 Supra, note 4.
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of them 4 asserted their right to participate in Convocation’s disposi-
tion of the Discipline Committee’s report. At this point, French
successfully applied to the High Court for an order quashing Con-
vocation’s proceedings.” This was subsequently affirmed by the
Court of Appeal.’ 6 The Law Society took a further appeal to the
Supreme Court of Canada, on two principal grounds: first, that the
Law Society Act'” impliedly permitted the two Benchers to parti-
cipate in Convocation’s decision;’ 8 and, secondly, that Convocation
was not really hearing an appeal at all, but merely receiving a report
from one of its committees, and that the nemo judex rule therefore
had no application to prevent members of the Discipline Committee
from sitting in Convocation on the same matter.
(a) Statutory construction: Has the rule been ousted?
Spence J., writing for the majority which allowed
the Law
Society’s appeal, looked at the Law Society Act in its entirety and
agreed that the Legislature had impliedly intended to oust the
application of the nemo judex rule from the particular kind of dis-
ciplinary proceedings which had been taken against French. 19 He
14Messrs Strauss and Harris. Mr Maloney (now Ombudsman for Ontario)
of his own volition did not sit in Convocation on this matter. Mr Chappel
had been defeated at an intervening election for Benchers, and therefore had
ceased to act as a member of the Discipline Committee and was not entitled
to sit in Convocation.
15 (1972) 25 D.L.R. (3d) 692, [1972] 2 O.R. 766 (OslerJ.).
16 (1974) 41 D.L.R. (3d) 22n, 1 O.R. (2d) 513n.
17 S.O. 1970, c.19; now R.S.O. 1970, c.238.
‘ Spence J. rejected the Law Society’s submission that the present pro-
ceedings were not subject to the nemo judex rule because at common law
judges could sit in appeal from their own decisions. He pointed out that the
Supreme Court of Judicature Act, 1873 of England (36-37 Vict. c.66) and The
Judicature Act of Ontario (R.S.O. 1970, c.228) now prohibit such judicial over-
lapping, supra, note 12, 782; and specifically held that such overlapping could
contain the seeds of bias. Therefore the nemo judex rule could arguably be
presumed to apply to the present proceedings unless ousted by statute –
which he held to be the case here. It is interesting to note that Spence J. spe-
cifically treated his earlier decision in King v. University of Saskatchewan,
supra, note 9, as “applying only to its particular circumstances”, supra, note
12, 783.
19 French was charged with professional misconduct under s.34 of the Act,
which provided: “If a member is found guilty of professional misconduct or
of conduct unbecoming a barrister and solicitor after the due investigation
by- a committee of Convocation, Convocation may by order cancel his mem-
bership in the Society by disbarring him as a barrister and striking his name
off the roll of solicitors or may by order suspend his rights and privileges as
a member for a period to be named or may by order reprimand him or may
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reached this remarkable conclusion by comparing the wording of
the section dealing with professional misconduct with that of other
provisions dealing with other disciplinary offences which specifically
prohibited members of the Discipline Committee from subsequently
sitting in Convocation on the same matter.FO Spence J. concluded
that this was a proper place to apply the maxim expressio unius est
exclusio alterius,2′ and that therefore this particular example of ins-
titutional bias had been statutorily put beyond the reach of the nemo
judex rule,1 a whether or not a reasonable person would apprehend
that the two Benchers would have been biased.
Chief Justice Laskin, writing for the three dissenting members
of the Court, found this to be “a curious, if not inverted view of
expressio unius, exclusio alterius”,2 The Chiel Justice noted that the
specific statutory prohibitions of overlapping membership between
the Discipline Committee and Convocation dealt with far less serious
offences than charges of professional misconduct. The Chief Justice
pointed out that a charge of professional misconduct is so grave
by order make such other disposition as it considers proper in the circums-
tances.” One might “note that s.33(12) clearly infers that a person found
guilty of professional misconduct under s.34 by the Discipline Committee has
a right of appeal: “The decision taken after a hearing shall be in writing and
shall contain or be accompanied by the reasons for the decisions in which
are set out the findings of fact and the conclusions of law, if any, based
thereon, and a copy of the decision and the reasons therefor, together with a
notice to the person whose conduct is being investigated of his right of appeal,
shall be served upon him within thirty days after the date of the decision.”
Although the Act does not specify to whom this appeal lies, the Lieutenant-
Governor-in-Council, acting under the powers granted to him in s.55 of the
Act, made Regulation 556, R.R.O. 1970, 719 which assumes that the “appeal”
lies to Convocation, although it refers to the Discipline Committee’s report,
not to its decision (see s.13(7) of that regulation). The vires of this regulation
was not considered by either the majority or the minority in the Supreme
Court of Canada –
somewhat remarkable in light of Spencer J.’s insistence
that there was no strict appeal because the Discipline Committee was merely*
investigating and did not decide anything. Osler J., supra, note 15, specifically
held the regulation to be intra vires.
21oSpence J., supra, note 12, 781-82, referred to s.39 of the Act, whicht per-
mitted the Discipline Committee itself to impose the lightest penalty –
the
reprimand –
on a recalcitrant member, and which also provided that an
appeal from such a decision lay to Convocation. S.39(4) further provided that:
“No bencher who sat on the committee of Convocation when the order appealed
from [i.e., the reprimand] was made shall take any part in the hearing of
the appeal in Convocation.”
21Expression of one thing is the exclusion of another.
21a Supra, note 12, 785-86.
22 Ibid., 773.
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that the nemo judex rule would clearly have been implied by the
courts at common law if the statute had been silent. Faced with the
absence of such a statutory prohibition against overlapping member-
ship, Chief Justice Laskin considered this to be “a casus omissus
which cries for judicial intervention in accordance with accepted
principles of administrative law” 23
With respect, Chief Justice Laskin’s approach is preferable.
Clearly, Parliament ought to give closer attention to the details of
legislation so as to specify, as far as possible, when it does intend
to permit or prohibit overlapping membership in multi-tiered deci-
sions (or in any other case where bias might be apprehended). But
Parliament, it seems, lacks the energy, the will and the time to con-
sider such important procedural details. Although the courts may no
longer be prepared to strike down a statutory provision which ex-
pressly ousts the nemo judex rule, as Coke did, 4 there is still no
reason for them to scrutinize legislation as minutely as Spence J.
did in order to eke out the legislators’ “intention” to permit bias. 42
After all, the policy underlying the nemo judex rule is to maintain
the public’s confidence in the integrity and impartiality in the ad-
ministration of the affairs of state. The courts have achieved this
policy by applying both principles of natural justice to a myriad of
decisions where Parliament has made no specific provision whatever
for the procedure by which, or the persons by whom, those decisions
were to be made. Of course, Parliament may always oust the applica-
tion of either rule of natural justice, provided it uses clear words to
do so. But why should the courts not adopt as robust a method of
statutory construction to presume that the nemo judex rule does
23Ibid.
24See Dr Bonham’s Case (1610) 8 Co. Rep. 113b, 118 77 E.R. 638, 652 where
Coke said: “[Wjhere an Act of Parliament is against common right or reason,
or repugnant, or impossible to be performed, the common law will controul
[sic] it, and adjudge such Act to be void.”
24aDe Grandpr6 J. in the Ringrose case, supra, note 4, 718, stated, as a
general proposition, that the nemo judex rule is ousted whenever the statutory
scheme provides for multi-step proceedings where overlapping membership
could occur but does not specifically prohibit it. De Grandpr6 J. said: “[N]o
reasonable apprehension of bias is to be entertained when the statute itself
prescribes overlapping of functions. Such is exactly the situation under the
Medical Profession Act. …. Thus, the same council, the members of which
are by law entitled to take part in all of its decisions, is by statute authorized
at the same time to … appoint a discipline committee staffed by at least
three of its midst. Thus, it is clear that the legislator has created the con-
ditions forcing upon the members of the council overlapping functions.”
(Emphasis added.)
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INSTITUTIONAL BIAS
apply as they have when avoiding the effect of privative clauses?2
Let Parliament state its intentions clearly.
(b)
Is a strict “appeal” necessary for the rule to apply?
Spence J. then went on to hold that the nemo judex rule did not
apply to prevent the two Benchers from sitting in Convocation
because it was not, strictly speaking, hearing an appeal2 from a
decision of the Discipline Committee. He said that the Committee
decided nothing; it was only an investigator and reporter, not a
prosecutor?’ Therefore the nemo judex rule did not apply to prevent
the two members of the Committee from also sitting in Convocation.
It is important to examine Spence J.’s insistence that there was
no appeal from the Discipline Committee’s report to Convocation.
One may agree that only Convocation had the power to impose a
25 See, e.g., Anisminic Ltd v. Foreign Compensation Commission [19693 2
A.C. 147 (H.L.); Metropolitan Life v. International Union of Operating En-
gineers, Local 796 [1970] S.C.R. 425. Arguing for a less hostile judicial approach
to privative clauses, see Laskin, Certiorari to Labour Boards: The Apparent
Futility of Privative Clauses (1952) 30 Can.Bar Rev. 986.
20 But what constitutes an “appeal”? Must there be a “decision” at the first
stage, so that there can be no “appeal” from a mere investigation of facts?
If, on the other hand, the first body does form an opinion (e.g., about guilt),
or make recommendations as to what action is required, is this enough to
constitute an “appeal”? Or must the first body not only have reached some
sort of decision, but also be in a position to implement that decision itself,
before one can say that an “appeal” exists from it to another body? Spence J.
did not specify which meaning he ascribed to the word “appeal”, but it was
clearly relevant to his decision that only Convocation had the power to
impose any actual penalty on French and therefore there could be no “appeal”
to it from the Discipline Committee (whatever it investigated or decided).
Chief Justice Laskin, on the other hand, clearly concentrated on the fact that
the Discipline Committee had done more than merely investigate the facts,
but had gone on to find French guilty and recommended to Convocation that
he be suspended. Laskin CJ.C. said, supra, note 12, 786, that he did “not
think that the issue herein falls to be decided according to whether the
proceedings in Convocation are or amount to an appeal or are or amount to a
review under a two-stage scheme of inquiry into allegations of professional
misconduct. No doubt, characterization of the proceedings as an appeal may
lend weight to the contention of the appellant solicitor, but the principle
underlying his position rises above any such formalistic approach. The prin-
ciple is immanent in the ancient maxim nemo judex in causa sua, expressed
by Coke in Dr. Bonham’s Case …. ”
As Spence J. noted, supra, note 12, 788, if anyone was the prosecutor, it was
the Secretary of the Law Society, Kenneth Jarvis. Quaere whether Mr Jarvis sat
with either the Discipline Committee or Convocation when they considered
the case against French. If so, would this have breached the nemo judex rule?
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penalty on French for professional misconduct. As well, it is true
that the Committee made no final or binding determination, from
which an appeal might (or might not) have been taken to Convoca-
tion. But, as Chief Justice Laskin pointed out in his dissenting judg-
ment, it does not therefore follow that the Committee made no
determination at all. Indeed, the Committee did decide that French
had been guilty of professional misconduct, and recommended to
Convocation that he be suspended. One may question, therefore,
whether the existence of a strict appeal is a necessary requirement
for the nemo judex rule to apply to prevent overlapping membership
of committees in circumstances like that in French, or whether the
existence of such a strict appeal is merely a sufficient condition for
the application of the nemo judex rule. In other words, are there
other circumstances besides the existence of a strict appeal, in
which there may be a reasonable apprehension of bias?
The answer to this question is clearly yes, and the fallacy in
Spence J.’s reasoning can easily be demonstrated by reference to
the National Energy Board case.2s where he himself agreed that the
nemo judex rule applied to prevent Crowe from hearing the applica-
tion to build the pipeline. The basis for Crowe’s disqualifica-
tion was his previous involvement with the Study Group which
planned the pipeline. The Study Group certainly was not an ad-
judicative body and certainly did not “appeal” (in any sense of the
word) to the National Energy Board when it applied for a permit
to build its proposed pipeline. Nevertheless, Crowe’s involvement
with the Study Group raised a reasonable apprehension that he
would be biased in favour of building the Arctic Gas pipeline, and he
was therefore disqualified as a member of the National Energy Board
when it subsequently had to decide which pipeline should be built.
The Supreme Court of Canada simply asked the blunt question
“is there a reasonable apprehension of bias on these facts?” If the
same question had been asked in French at the very outset, the result
would surely have been different. For the mere involvement of the
committee members in the disciplinary proceedings ought to have
raised a reasonable apprehension that they would be biased against
French in Convocation. Why, therefore, was it necessary to go further
and to insist that the nemo judex rule applied if, but only if, the
Discipline Committee’s hearings were “adjudicative”, from which an
appeal could be taken to Convocation? Yet, this was clearly the
ratio decidendi adopted by Spence J. in allowing the Law Society’s
appeal. Instead of challenging this reasoning, by his emphasis on the
28 Supra, note 2.
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INSTITUTIONAL BIAS
adjudicative nature of the Discipline Committee’s finding of guilt,
Chief Justice Laskin merely distinguished the authorities relied upon
by Spence J.
But why is it relevant to know whether the Discipline Committee,
the first stage of the two-tier process, made any “determination” at
all? Spence J.’s reasoning clearly requires the first stage to be
“determinative” (and not merely investigative), for otherwise there
could be no strict appeal to Convocation. And a strict appeal is ne-
cessary, in Spence J.’s opinion, for the application of the nemo judex
rule to Convocation’s proceedings. Although Chief Justice Laskin
specifically held that the existence of a strict appeal was not ne-
cessary in order for the nemo judex rule to apply,29 the basis of his
judgment rests squarely on his view that the Discipline Committee
had, in fact, found French guilty. In effect, the Chief Justice simply
disagrees with the facts as found by the majority. But how would
Chief Justice Laskin have disposed of the case if he, too, had
characterized the Discipline Committee’s decision as being “merely
investigative”?
the
investigative. This was
The clue to Spence J.’s reasoning might be thought to lie in the
proposition that the rules of natural justice do not apply to pro-
ceedings which are only
result
of the Supreme Court of Canada’s decision in Guay v. Lafleur,30
where the Court held that the plaintiff taxpayer was not entitled
to legal counsel during a statutory inquiry into his financial affairs.
All members of the Court agreed that the inspector was not there
acting in a judicial or quasi-judicial capacity because he was only
inquiring into facts and had no power to affect the plaintiff’s rights.
And even if at a subsequent time the plaintiff were assessed higher
taxes as a result of the inquiry, all of the normal appeal procedures
under the Income Tax Act3 ” would then be open to him. Guay v.
Lafleur therefore may be said to stand for the proposition that the
rules of natural justice do not apply to a merely investigative
procedure.
But does the rationale behind Guay v. Lafleur necessarily apply
to determine the outcome of a case involving institutional bias?
Aside from the fact that Guay v. Lafleur concerned the applicability
of the audi alteram partem rule and not the nemo judex rule, it is
important to note whose decision was being attacked in Guay v.
Lafleur. The Supreme Court of Canada held that the audi alteram
29 See supra, note 26.
30 [1965] S.C.R. 12, (1965) 47 D.L.R. (2d) 226.
3oa R.S.C. 1952, c.148, s.231(15) as amended by S.C. 1970-71-72, c.63.
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partem rule was not applicable to the inspector’s inquiry. It said
nothing about the applicability of the rules of natural justice to
any subsequent step in the proceedings. If the Minister of National
Revenue did assess the plaintiff in light of the report and the matter
went to the Tax Review Board, could it render its judgment without
permitting the plaintiff to be heard, or without the advice of counsel?
Surely not. And the reason for this would be the quasi-judicial
nature of these subsequent proceedings before the Tax Review Board,
which necessarily 3′ required the application of the rules of natural
justice. And no one would suggest that the Tax Review Board would
be exempted from the rules of natural justice simply because the
preceding stage in the tax-collecting process was “merely investiga-
tive”.
Why, therefore, did it matter at all in French whether the Disci-
pline Committee had made a “determination”? Why was the charac-
terization of the Discipline Committee’s function even relevant to the
applicability of the nemo judex rule 2 to the proceedings before
Convocation? Surely, at least as long as Convocation’s proceedings
could properly be characterized as being judicial or quasi-judicial,:3
there could be no doubt that both rules of natural justice applied to
them. And the only relevant question then is: “Has the nemo judex
31 This assumes that the principles of natural justice apply to the exercise
of all quasi-judicial functions. It can, of course, be forcefully argued that the
principles of natural justice are of considerably wider application, and do not
depend upon the existence of a judicial or quasi-judicial function. This wider
concept of the principles of natural justice explains the genesis of the
English cases on the “general duty to be fair” referred to supra, note 6. See
also Lord Reid’s eloquent analysis of the relationship of the principles of
natural justice and the existence of a judicial or quasi-judicial function in
his judgment in Ridge v. Baldwin [1964] A.C. 40 (H.L.).
32 Th1is point was clearly recognized by Par6 J. (though not by any of the
judges in the Court of Appeal or in the Supreme Court of Canada) in
Saulnier v. The Quebec Police Commission at first instance (unreported, but
referred to in Pigeon J.’s judgment in the Supreme Court of Canada which
is reported at (1976) 57 D.L.R. (3d) 545, 547-48) when he said: “‘Here, there
arises an irreconcilable conflict between the spirit of the Act and the rules of
elementary justice. The tribunal before which applicant could appeal the
decision of the investigator is none other than the one which decided his
case at first instance, through a Commission of Inquiry.’ ” See Jones, (1975)
53 Can.Bar Rev. 802.
33And none of the judges doubted that Convocation was exercising a
judicial or quasi-judicial function. Cf. de GrandprdJ.’s judgment
in the
National Energy Board case, supra, note 2, where he would have held that
the Board did not exercise a quasi-judicial function. On this aspect of the case,
see Jones, supra, note 3, 464-68.
1977]
INSTITUTIONAL BIAS
rule been breached; is there a reasonable apprehension of bias?”
And the answer to this question would surely have been yes, what-
ever the characterization of the first stage in the proceedings.
3. Ringrose v. College of Physicians and Surgeons of Alberta
The above approach was precisely the one adopted by Dickson J.
in his dissenting judgment in Ringrose v. College of Physicians and
Surgeons of Alberta.34 There, the plaintiff was charged with conduct
unbecoming a physician and surgeon. His medical privileges were
immediately suspended 35 by the Executive Committee of the Council
(or general governing body) of the College, pending the outcome
of a formal hearing into his conduct by the Discipline Committee.
This latter committee subsequently found him guilty and recom-
mended to the Council (which had the final decision-making power)
that he be suspended for one year 6 Dr Ringrose sought to prevent
this report from reaching the Council by applying for an order ‘of
certiorari to quash the Discipline Committee’s report because one of
its members (Dr McCutcheon) was also a member of the Executive
Committee which had earlier temporarily suspended the plaintiff’s
licence. In fact it turned out that Dr McCutcheon had not taken part
in the first proceedings at all, but only became aware of the charges
against the plaintiff when the case later came before the Discipline
Committee. The Ringrose case, therefore, does not concern the first
type of institutional bias noted above (where the same person ac-
tually participates in more than one stage of a multi-step proceeding),
but rather the second type in which there is a reasonable apprehen-
sion that the final decision-maker is unlikely to deviate from the pre-
vious decision taken elsewhere within the decision-making institu-
tion, even if no overlap of personnel occurs. Ringrose’s application for
certiorari was dismissed by the Trial Division of the Supreme Court
of Alberta, and this was confirmed both by the Appellate Divi-
sion31 and the Supreme Court of Canada.3 8
34 Supra, note 4.
3 The suspension was itself almost immediately quashed by the Trial
Division per Lieberman .. (unreported, but referred to in de Grandprd J.’s
judgment, supra, note 4, 713).
36 The final decision rested with the Council, of which Dr McCutcheon was
also a member (as, presumably, were all of the members of both the Executive
and the Discipline Committees). The Discipline Committee also recommended
that Dr Ringrose be required to pay the costs of its investigation.
7 [1975] 4 W.W.R. 43, (1975) 52 D.L.R. (3d) 584 per Prowsel.A.
38Supra, note 4.
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(Vol. 23
In speaking for the majority of the Supreme Court of Canada, de
Grandpr6 J. presented reasons which closely resembled those of the
majority in French. After first considering whether two affidavits
were admissible for the purpose of determining whether there was a
reasonable apprehension of bias,29 de Grandpr6 3. held that the
nemo judex rule could only be invoked where the allegedly biased
person was sitting in direct appeal from the committee of which he
was normally a member.40 This was clearly not the case here because
39 First de Grandpr6 J. pointed out that the College had not argued that
Dr Ringrose had waived his right to object to Dr McCutcheon’s presence on
the Discipline Committee by waiting to bring the present proceedings until
after the Committee had sat. Therefore Dr Ringrose’s affidavit concerning his
ignorance of Dr McCutcheon’s functions in the College could only have been
made for the purpose of sustaining the allegation of bias. After expressing
surprise that a member of a professional body did not know the names of its
officers, de Grandpr6 J., supra, note 4, 715, said that “the allegation is irrelevant
because we are not to look at the situation through the eyes of a person
wlo takes no step to inform himself of the true facts; on the contrary, it is
to the reasonable person, well-informed, that we must look and that reasonable
person has the duty to obtain knowledge of the facts.” (Emphasis added.) This
statement is strikingly similar to de Grandpr6J.’s approach in his dissenting
judgment in the National Energy Board case, supra, note 2, which has been
criticized by this author for ignoring the policy behind the nemo judex rule,
supra, note 3, 470-71.
Secondly, de Grandpr6 J. considered the admissibility of the affidavit made
by the Registrar of the College. Although in principle no evidence is admissible
to determine whether there was or was not actual bias (because such evidence
is simply irrelevant to the question whether there is a reasonable apprehension
of bias), de Grandpr6J., supra, note 4, 716, admitted the College’s affidavit
for the reasons given by Prowse J.A. in the Appellate Division, supra, note 37,
48. There ProwseJ.A. said: “In my view these cases [Szilard v. Szasz [1955]
S.C.R. 3 and Ghirardosi v. Minister of Highways for B.C., supra, note 2]
merely support the conclusion that when circumstances exist from which a
reasonable apprehension of bias arises evidence is not admissible for the
purpose of establishing that a person the law presumes to be biased was not
in fact biased. They do not purport to deal with the question of the admissibili-
ty of evidence for the purpose of having the relevant circumstances before the
court so that it may consider whether in those circumstances a reasonable
apprehension of bias arises.” (Emphasis added.)
Although de Grandpr6J. referred to Chief Justice Laskin’s decision in
P.P.G. Industries v. A.G. of Canada, supra, note 2, he did not appear to notice
that the Chief Justice there did quite definitely consider evidence –
contrary
to principle – which showed that Buchanan had not in fact participated in the
Anti-Dumping Tribunal’s decision, although he had signed one copy of it. Ought
one to conclude, therefore, that the first part of Prowse J.A.’s summary of the
law has been overruled by the Supreme Court of Canada in P.P.G.?
4 0 De Grandpr6 J.’s ruling is contrary to Lord Widgery’s dictum in Hannam
v. Bradford City Council [1970] 2 All. E.R. 690, 698, [1970] 1 W.L.R. 937, 946
1977]
INSTITUTIONAL BIAS
the Executive Committee’s decision temporarily to suspend Rin-
grose was
nothing more than a statement of the common weal on the one hand and
the private interest of the medical practitioner on the other … [which
have] … been weighed and … the temporary conclusion has been reached
that, until the facts are properly investigated, it is preferable to suspend.41
The Discipline Committee was not hearing an appeal of any kind
from the provisional decision of the Executive Committee to suspend
Dr Ringrose. Therefore, de Grandpr6 J. held that the nemo judex
rule did not apply to the Discipline Committee’s proceedings.
Dickson J., writing for the minority, strongly dissented from this
technical approach. He simply assumed that the principles of natural
justice did apply to the Discipline Committee’s proceedings. He then
asked whether on the facts there was a reasonable apprehension
that the Discipline Committee would have been biased against the
plaintiff. The answer to this question, he said, in such a case depended
upon a whole host of factors:
All of the surrounding circumstances must be investigated. What is the
function of each of the committees? Does the first body merely find facts,
or does it make a preliminary adjudication? What is the effect of one body’s
decision on the second’s decision making? Is one of the committees sitting
in appeal, expressly or in effect, from the decision of the other committee?
Is the member in the second committee defending, perhaps unconsciously,
a decision of the first committee which he helped to make? Did the first
committee initiate the proceedings or lay charges with the result that a
member of that committee, who later sits on the other committee to hear
evidence, is both accuser and judge? What i the size of the respective
committees? What was the degree of participation in each committee by
the member whose presence on both committees is impugned? These
and other questions must be asked and answered.4
In complete contrast to the approach adopted by the majority in
both French and Ringrose, Mr Justice Dickson posed these questions
for the sole purpose of determining whether there was a reasonable
apprehension of bias. If these questions had been answered in the
affirmative, Dickson J. would have held the impugned decision to
have been void, without further inquiry. Although the majority also
(CA.), which reads: “[W]hen one is used to working with other people in a
group or on a committee, there must be a built-in tendency to support the
decision of that committee, although one tries to fight against it, and this is
so although the chairman [i.e., the person whose impartiality is attacked] was
not sitting on the occasion when the decision complained about was reached.”
Thus, the Hannam case clearly did deal with the second type of institutional
bias noted in the “introduction” to this article. See text, supra, p.607.
41Supra, note 4, 717.
42Ibid. 720 (emphasis added).
McGILL LAW JOURNAL
[Vol. 23
asked these questions, they did so for the purpose of first determining
whether the principles of natural justice applied at all. Only then
would they have asked whether there was a reasonable apprehension
of bias.
Although Dickson J.’s approach would not always yield a different
solution,43 it possesses a number of distinct advantages. First,
Dickson J. clearly concentrated on the impression created by the
particular fact situation in which the nemo judex rule is alleged to
have been breached, thus bearing in mind the public policy behind
the very existence of the rule: justice should be seen to be done
impartially. This has the double advantage of being both a generic
approach capable of being applied to all situations in which bias is
alleged, as well as recognizing that
[w]hat may be termed institutional bias or participation by association
should … not be rejected out of hand as a possible ground for appre-
hension of bias. 44
Dickson J. thus acknowledged that both types of institutional bias dis-
tinguished earlier in this article 44″ may, in certain circumstances,
constitute a breach of the nemo judex rule. Secondly, this approach
avoided the magical requirement that there be a strict appeal before
the nemo judex rule can apply to the second stage of a two-tier
decision. Thirdly, this approach riveted the court’s attention squarely
on the apprehension of bias at a particular stage in the proceedings,
and completely avoided confusing the issue by referring to the merely
investigative or administrative nature of preceding steps in the
decision-making process. Finally, such a forthright judicial appraisal
of whether or not the particular facts do generate a reasonable ap-
prehension of bias would encourage the courts to take a far more
robust approach to the construction of poorly drafted statutory
provisions which may (or may not) inferentially permit institutional
bias. As Dickson J. himself said:
On occasion, … the governing statute may permit overlapping of functions
in a two-stage procedure but such an enabling provision must not be
over-extended. The provision in the Medical Profession Act, … permitting
a degree of overlapping between the council and discipline committee, does
not justify overlapping between the discipline committee and the executive
committee. I think that, to avoid criticism, reliance should be placed upon
such an overlapping provision as infrequently as the practicalities of the
situation permit, since there rests upon the governing bodies of the
professions in the exercise of their statutory disciplinary powers the duty
4 Indeed, in this case, Dickson J. agreed that there was no reasonable
apprehension of bias.
44 Supra, note 4, 720.
44a See text, supra, p.607.
1977]
INSTITUTIONAL BIAS
to be scrupulously fair to those of their members whose conduct is under
investigation and whose reputations and livelihood may be at stake….
[T]he investigation of the alleged breach, and the steps taken to determine
culpability, must be such that justice is manifestly seen to be done,
impartially and, indeed, quasi-judicially 4 5
4. Conclusion
As de Grandprd J. said in a slightly different context:
Confidence in our institutions is at a low ebb. This statement is not very
original but unfortunately is unchallengeable. Many factors have brought
about this crisis and unconscionable conduct by public officials is only
part of the story. Still, if we are to regain some of the lost ground, we
have to start somewhere. To reaffirm the requirements of highest public
morality in elected officials is a major step in that direction.
To speak of civil liberties is very hollow indeed if these liberties are not
founded on the rock of absolutely unimpeachable conduct on the part of
those who have been entrusted with the administration of the public
domain. 6
Not only must the conduct of public administrators in fact be
absolutely unimpeachable, it must also appear to be fair. Decision-
makers who participate in more than one level of a multi-tier deci-
sion frequently do appear to be biased, and therefore appear to be
somewhat less than fair. The courts do nothing to alleviate such a
lingering suspicion of unfairness by invoking very technical grounds
(such as the lack of a strict appeal or the merely investigative nature
of earlier steps) for holding that the nemo judex rule virtually never
applies to cases of institutional bias. The appearance of justice is a
major element in the public’s confidence in society’s institutions.
Maximizing the appearance of justice requires a far more intrepid
approach to the nemo judex rule than demonstrated by the majority
in either French or Ringrose. Justice cannot appear to be done where
there is a reasonable apprehension of bias. And the very existence
of such an apprehension of bias ought to be the starting point for
judicial review – whether of institutional bias, or of any other
circumstance where the nemo judex rule has allegedly been breached.
The appearance of procedural fairness may not insure substantive
justice, but greater care over procedural details would go a long way
to raising the public’s confidence in those who exercise authority
over us all.
45 Supra, note 4, 720.
40 In Hawrelak v. City of Edmonton (1975) 54 D.L.R. (3d) 45, 68 (S.C.C.), a
case dealing with conflict of interest.
