The fact that the Executive Director dealt with previous complaints to the Commission from the appellant does not give rise to a reasonable apprehension of bias. To do so would hold the Executive Director to too high a standard given the function he is to perform at the investigative stage of a complaint.

Administrative law – Judicial review – Boards and tribunals – Questions of jurisdiction – Reasonable apprehension of bias – Previous complaints – Investigative bodies – Fairness – Human rights complaints

Ayangma v. Prince Edward Island (Human Rights Commission), [2002] P.E.I.J. No. 20, Prince Edward Island Supreme Court – Appeal Division, March 4, 2002, Mitchell C.J.P.E.I., McQuaid and Webber JJ.A.

The appellant teacher (“Ayangma”) filed a complaint with the PEI Human Rights Commission alleging that the school board discriminated against him in its hiring practices. The Executive Director referred the investigation to the New Brunswick Human Rights Commission because of the Commission’s concerns about a reasonable apprehension of bias. A Human Rights Officer was designated to investigate the case but his report to the P.E.I. HRC was incomplete. By this time, there was a new Executive Director who delegated the completion of the report to a P.E.I. HRC compliance officer, who dismissed the complaint as being without merit.

The duty of fairness applies to all administrative bodies but the extent of that duty will depend upon the nature and the function of the tribunal. [Newfoundland Telephone Co. v. Newfoundland (Public Utilities Board), [1992] 1 S.C.R. 623]. The standard of impartiality varies with the function of the tribunal. An agency or tribunal exercising adjudicative functions would be held to a standard of impartiality tantamount to that of a court. On the other hand, the standard of impartiality for an investigator would be at the lower end of any spectrum. As long as the evidence does not indicate that the investigator had a closed mind, the action of the investigator should not be subject to a jurisdictional attack on the basis of reasonable apprehension of bias.

The previous involvement of the Commission and the Executive Director in complaints made to the Commission by the appellant should not necessarily raise an apprehension of bias given the threshold for establishing a reasonable apprehension of bias in an official carrying out an investigative function. Furthermore, the Executive Director is not in the position to concede an apprehension of bias on the part of the HRC.

There was no evidence that the Executive Director or his delegate had a closed mind indicative of having prejudged the issues which would arise from the complaint.

However, the trial judge erred in concluding that the Chair reached a reasonable conclusion when he concurred with the decision of the compliance officer to dismiss the complaint. The role of the investigator is to decide whether there is a reasonable basis in the evidence gathered which would justify sending the proceeding to the next stage which, failing settlement, is the Inquiry. The evidence gathered in this case established a prima facie case of discrimination and it was sufficient to warrant a recommendation to the Chair to appoint a panel of Inquiry.

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