No Right To Pick Your Tribunal

The Tribunal Hearing Division of the Upper Canada Law Society has denied a recusal motion

Mr. Bogue self-identifies as a member of the Kinakwii Nation. He submits that, as a result, he is entitled to choose who the members of this panel will be, and that those persons must be Aboriginal. According to Mr. Bogue, he is supported in this submission by Canada’s endorsement and support for the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), and by the Report to Convocation of the Equity and Indigenous Affairs Committee, dated June 29, 2017.

Mr. Bogue called no evidence on this motion. He submitted that neither Mr. Whist nor I are of Aboriginal heritage, or have “Aboriginal blood” and, as such, we should not be permitted to sit as adjudicators on a panel hearing his motion. Mr. Bogue advised that although Mr. Galati is also non-Aboriginal, given Mr. Galati’s history and reputation for acting on public interest cases, Chief Al Baldwin (of the Kinakwii Nation) was prepared to grant Mr. Galati honourary membership in the Kinakwii Nation, and that Mr. Galati was therefore an acceptable panel member.

The Law Society opposed the motion for recusal, noting that: 1) there was no evidence as to the heritage of any of the panelists; 2) an adjudicator’s ethnic or national origin is not a valid ground for alleging bias; 3) Mr. Bogue has brought similar motions before other tribunals and courts, all of which have been denied, confirming that no such entitlement exists within the Canadian justice system; and 4) the documents referred to by Mr. Bogue (UNDRIP, the Equity and Indigenous Affairs Committee Report to Convocation) do not support the arguments made by Mr. Bogue.

We agree with the Law Society that the motion for recusal should be dismissed, for a number of reasons. First, the composition of a panel that is to hear a motion, or any matter before the Tribunal, should not be affected or dictated by the preferences of a party to the proceeding. A party should not be able to unilaterally determine whether a particular adjudicator will or will not hear a case, or who should sit on a panel. Moreover, a party’s wishes should not determine the assignment of adjudicators. As stated by Justice Doherty in Beard Winter LLP v. Shekhdar, 2016 ONCA 493 (CanLII) at para. 10:

Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

Second, it is notable that this recusal motion was not brought on the basis of a claim of actual bias or a reasonable apprehension of bias. Rather, Mr. Bogue’s argument is that, as a person who identifies as Aboriginal, he has the right to choose to be judged only by Aboriginal persons. We do not consider this to be an appropriate ground on which to base a motion for recusal. Indeed, it stands in complete contrast to the long-held view of the Supreme Court of Canada, and of other courts across Canada, that the assignment of an adjudicator or judge should not be based on the individual’s personal characteristics.

(Mike Frisch)