Dear readers,
Only one case this week. Please see here for last week’s newsletter, which contains several important cases.
For those that read about the ostrich case last week, the plot thickens: “RFK Jr asks Canadian regulator to reconsider ostrich cull at BC farm.”
Halifax (Regional Municipality) v Dalhousie University, 2025 NSCA 33
Context: From the Court’s summary:
Dalhousie University acquired a residential property in Halifax with plans to demolish the existing house. The Halifax Regional Municipality (HRM), acting on a recommendation from the Heritage Advisory Committee (HAC), registered the property as a municipal heritage property under the Heritage Property Act. Dalhousie objected, claiming procedural unfairness, bias, and unreasonableness in the decision-making process (paras 2-3, 18-20).
Issue: Was HRM’s adoption of the HAC recommendation biased?
Holding: There is no apprehension of bias in this case.
Analysis: Any time an appellant court weighs in on the nemo judex principle, I think it is worth noticing. Bias cases do not arise often, but when they do, they tend to arise on interesting facts: see Vento Motorcycles Inc v Mexico, 2025 ONCA 82 (Issue #167).
First, there was a dispute between the parties over which test for bias applies to the facts. Where a decision-maker performs an adjudicative function, the typical, well-established test for bias applies: whether “an informed person viewing the matter realistically and practically ... [w]ould think that it is more likely than not that [the decisionmaker], whether consciously or unconsciously, would not decide fairly.” On the other hand, where a decision-maker exercises a policy or legislative function, a different test applies; the decision-maker is only required to keep an open mind (/not have a closed mind): Newfoundland Telephone, [1992] 1 SCR 623.
The Court (per Van den Eynden JA) concludes that the “no reasonable apprehension of bias” test applies [140]. This was a simple conclusion, because the Council was exercising an adjudicative function. However, the reviewing judge below misapplied the test—and Van den Eynden JA’s interpretation of that test arguably relaxes it based on the statutory context.
The statutory context, here, is the Heritage Property Act. That statute contemplates that HRM is vested with broad powers [149]; that HRM can appoint 10 members of the public to serve on the HAC [148]; and that, in general, HRM/Council is statutorily empowered to “consider and weigh the competing rights and interests” involved [152]. These include the balance between private property interests and the preservation of heritage property [152].
Dalhousie argued that several comments from councillors, and their participation in the HAC recommendation process, evinced a reasonable apprehension of bias [154, 158]. Van den Eynden JA’s analysis proceeds on the supposition that HRM was exercising an adjudicative function, but that this adjudicative function—in statutory context—does not require all of the trappings of a formal adjudicative process. Many of the impugned comments [161-167] involved alleged instances of pre-judgment, in which councillors indicated a preference for saving the heritage property. But in this context, Van den Eynden JA concludes that this not fatal: given the political context, politicians are allowed to make their votes and positions known [169]. This might suggest something closer to the Newfoundland Telephone test. But Van den Eynden JA is quick to note that “no reasonable apprehension” in this case only amounts to a fair and impartial consideration of the evidence [160]. That bar was met here.
As for the argument from overlapping functions (ie) the same councillors were on the HAC and at Council, Van den Eynden JA deals with this easily: these overlapping functions are authorized by statute, and thus constrain the role of the common law principle of nemo judex [158].
This is a fascinating case. Van den Eynden JA is honest: this is a “close call” [171]. Some of the councillor’s comments raised “cause for concern” [170]. This is a close call case because while the councillors are acting in an adjudicative capacity—suggesting a higher bar—the statutory and political context in which they operate does not commend a strict adjudicative process.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own