By Johnson Babalola
Little things matter in life, especially in our professional lives. In fields such as medicine, law, finance, and others, professionals must pay careful attention to details. What may appear minor at first glance can determine whether a patient lives, whether a client maintains their freedom, or whether someone remains financially secure. A true professional must therefore be focused, attentive, decisive, and courageous enough to address issues when they arise.
This morning, one of the mentees on the JBLLC Mentorship Platform reached out to me asking if I could provide examples of breach of natural justice and apprehension of bias in a hearing setting. I knew I had encountered several examples over the years, but I eventually settled on one particular case, which I thought would be instructive and worth sharing more broadly.
A few months ago, a young man approached me seeking assistance with the appeal of his refused refugee claim. After I was retained, I began reviewing the decision as well as the transcript of the hearing. Immediately, a number of issues stood out—issues that some might dismiss as minor but which, in reality, were quite significant.
First, the tone of the Adjudicator throughout the hearing was noticeably condescending toward the claimant. At times, the claimant appeared to be mocked for his lack of clarity in the English language. The overall tone of the questioning was also adversarial.
More troubling was the Adjudicator’s comment at the conclusion of the hearing that he had struggled to understand the claimant for much of the proceedings. Despite this admission, the Adjudicator proceeded to render a decision on the matter.
What made the situation even more concerning was the fact that an interpreter had been present at the hearing on standby. The Adjudicator did not deem it appropriate to request the interpreter’s assistance. Instead, he took the position that it was up to the claimant to request interpretation services. This reasoning overlooked the reality that the Adjudicator occupied a position of authority over a claimant who was nervous, unfamiliar with the process, less sophisticated, and fearful for his safety if returned to his country of origin. Unfortunately, the claimant’s counsel did not raise the issue during the hearing.
I explained to the mentee that this was a clear breach of the claimant’s right to procedural fairness. The problem could easily have been avoided if the Adjudicator had simply directed that the interpreter step in to ensure that the claimant was properly understood and able to fully present his case.
On the issue of apprehension of bias, I shared another observation with the mentee. At the conclusion of the same hearing that had lasted several hours, during which detailed documentary evidence and oral testimony were presented, the Adjudicator took a 10-minute break. Upon returning, he proceeded to deliver an oral decision that spanned several pages and took more than 35 minutes to read.
In my view, it would have been extremely difficult to prepare such a detailed decision during a brief 10-minute break. This raised the possibility that the decision had been substantially written while the hearing was still ongoing. That circumstance creates what the courts have described as an appearance that the case may have been decided before all of the evidence was fully considered (see Agastra v. MCI, 1999 CanLII 8692 (FC), para 10).
This, I explained to the mentee, is a classic illustration of apprehension of bias —not necessarily that the decision-maker was actually biased, but that a reasonable observer could conclude that the decision-maker might have pre-judged the matter.
Based on these concerns, I proceeded to file the appeal on the identified grounds of breach of procedural fairness and apprehension of bias, and the appeal was successful.
In essence, procedural fairness requires that a person affected by a decision be given a genuine opportunity to present their case before an impartial decision-maker. Apprehension of bias, on the other hand, arises where the conduct or circumstances surrounding a decision create a reasonable perception that the decision-maker may not be impartial.
These principles are not abstract legal theories. They are fundamental safeguards designed to ensure that justice is not only done, but is also seen to be done.
*Johnson Babalola is a Toronto, Canada based immigration lawyer and the Founder of JBLLC, a mentorship platform for young lawyers and law students.
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