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This month, Ecojustice filed an application for judicial review of the Vancouver Fraser Port Authority’s decision to permit a coal transfer facility. They claim that the Port Authority failed to consider some environmental effects, including climate change, and that the decision of the Port and its officers and staff was affected by bias.

Bias is a serious allegation. As our Supreme Court said in Roberts v. R, 2003 SCC 45: “public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.” Without fair, impartial decision-makers, our legal system cannot function. Perhaps the Port Authority should not have permitted the coal facility, but was it “biased”?

In assessing a claim of bias, the court will ask whether there is a “reasonable apprehension of bias” – i.e. what would an informed person conclude, viewing the matter realistically and practically – and having thought the matter through? Would this person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, was affected by a conflicting interest of its own?

The alleged evidence of bias in this case include:

  • Comments from Port Authority officers and staff indicating that they had predetermined that the permit would be issued;
  • The officers making a decision whether to issue the permit had a financial incentive to issue an approval because there is a link between the economic performance of the Port Authority and the executive compensation program;
  • While the project was under review, the Port Authority was affiliated with organizations promoting coal and the coal industry; and
  • While the project was under review, the Port Authority collaborated with the project proponents regarding how the project would be portrayed to the public.

The federal government’s drive to make ports and similar facilities economically self sufficient creates a built in conflict between port authorities’ obligation to see the port make money and their responsibility to protect the public interest, including the natural environment. In such conflicts, whether private or public, money often wins. Is this why the coal permit was authorized? If so, does it count as legal “bias”? And, if it does, what governance structures for ports and similar authorities would pass the legal test?

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