Rare judicial review case challenges judge’s impartiality

A unique judicial review has brought the issue of judicial bias to the forefront in the Federal Court. The applicants of this hearing are challenging a Canadian Judicial Council (CJC) decision that “closed” their complaints against Tax Court Justice David Spiro, settling allegations of misconduct against him without a formal public inquiry.

When asked for his commentary on the matter, partner Andrew Bernstein—who is acting as co-counsel for B’nai Brith of Canada League for Human Rights in this hearing, alongside Torys’ Yael Bienenstock and Adrienne Oake—explained to The Lawyer’s Daily (TLD) that judges in Canada, including Justice Spiro, are chosen, in part, for their integrity and are accorded a presumption of impartiality.

“You would need very strong evidence to displace the presumption that a judge is going to fulfil their judicial oath,” he said.

TLD reported that according to the CJC, Justice Spiro was, among other things, alleged by the complainants “to have put the integrity and impartiality of the Tax Court of Canada in jeopardy, and cause any party or lawyer before the court who is Palestinian, Arab, or Muslim to reasonably fear bias.”

Andrew noted that he is not aware of any other judicial review cases challenging the CJC’s dismissal of a judicial misconduct complaint, nor of one which raises the same issues as this one.

“We’re going to be saying to the court ... please consider the concerns that we have about ... preconceived notions that people may have about how a pro-Israel judge is going to react to a, for example, Palestinian litigant,” he said.

“There’s no reason to think that a judge who has worked for the benefit of Israel and the Jewish community is going to have any particular animus against any particular litigant that shows up in front of the court.”

You can read more about our Disputes and Investigations work on our practice page.

Press Contact

Richard Coombs | Senior Manager, Marketing
416.865.3815