Between:
7-Eleven Canada Inc. o/a or intending to o/a 7 Eleven, 1181 Western Rd, London Applicant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent
-and-
David Heap and Jeff Robinson Added Parties
AMENDED DECISION ON MOTION TO RECUSE
ATTENDANCES
Order made by: Geoff Pollock, Vice-Chair
For the Applicant: Will Shaw, Jane Mayfield and Natasha Sanders, Counsel
For the Respondent: Rena Khan, Counsel
For the Added Parties: David Heap (Self-Represented) and Jeff Robinson (Self-Represented)
HEARD: IN WRITING
OVERVIEW
1One of the Added Parties, David Heap, has brought a motion that I recuse myself from hearing this Appeal. The grounds for this motion are that the University of Western Ontario (“Western”) objects to the application for a liquor licence by 7-Eleven Canada Inc. (“7-Eleven”) and brought a motion to be added as a party. I am a member of Western’s Board of Governors. Dr. Heap submits that my membership in Western’s Board of Governors, when coupled with Western’s opposition to the issuance of the licence in this case, creates a reasonable apprehension of bias. He is supported by the other added party, Jeff Robinson, 7-Eleven and the Registrar.
TIMELINESS OF THE RECUSAL MOTION
2The issue of reasonable apprehension of bias was properly raised at the very earliest opportunity, i.e. at the outset of the hearing. All parties requested that this motion be heard in writing. I agreed.
ANALYSIS
3The test for a reasonable apprehension of bias is well-established in Canadian law. As stated in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369:
…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…that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?
4Further, in Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 59, the Supreme Court held:
…”[i]mpartiality is the fundamental qualification of a judge and the core attribute of the judiciary” (Canadian Judicial Council, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed. As was noted by L’Heureux-Dubé J. and McLachlin J. (as she then was) in S. (R.D.), supra, at para. 32, the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption. Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification to establish that the circumstances justify a finding that the judge must be disqualified.
See also: Ontario Provincial Police v. MacDonald, 2009 ONCA 805 (C.A.) at para. 44.
5Notwithstanding that prior to the commencement of this hearing, the Tribunal dismissed Western’s motion to be an added party, given Western’s overall opposition and the fact that it may well assert its opposition by way of evidence on behalf of objectors, I am persuaded by the parties’ submissions that my membership in Western’s Board of Governors gives rise to a reasonable apprehension of bias for the following reasons.
6Every member of the Board of Governors has a duty to act in the best interests of the university. While I do not conclude that I am indeed biased for or against any of the parties in this dispute, that is not the end of the inquiry. The Supreme Court’s test set out in Committee for Justice and Liberty requires me to consider the public’s perception of bias. Given my concurrent roles as a member of Western’s Board of Governors and the adjudicator currently assigned to preside over this hearing, I conclude that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it is more likely than not that, consciously or unconsciously, my role in the former presents a conflict with my role in the latter in this particular hearing. Given the evidence before me and the parties’ submissions, the motion is granted.
ORDER
7Mr. Heap’s motion for recusal is granted.
LICENCE APPEAL TRIBUNAL
Geoff Pollock, Vice-Chair
Date of Issue: December 5, 2022