Public Service Announcement: Accessibility

The following showed up in my email from Inclusion Canada today so I'm passing it on.

You have a right to accessible information. What should that look like?

We know that accessibility is key to people with disabilities participating fully and equally in society. Fill out a survey to help us tell the federal government how they can do better and communicate more accessibly. 

Inclusion Canada is looking for people with an intellectual or developmental disability and their supporters to speak up. We want your voices to be heard You can do the survey in three ways: 

         1.  Online 

          2   With support over the phone or a video call 

3. On paper (we will mail you a printed copy of the survey) 

Please contact AIIDD.Study@camh.ca or by phone 437-328-6761.

When you complete the survey you will be entered into a draw for 1 of 12 gift cards. But the real prize helping improve how the Government of Canada communicates with people with disabilities in the future. 

This project is a partnership between Inclusion Canada, the Centre for Addiction and Mental Health (CAMH), People First of Canada, the British Columbia Aboriginal Network on Disability Society (BCANDS), and Surrey Place. 

The Canada Disability What??!!

Does anyone remember the Canada Disability Benefit? Apparently, the government doesn't. 

Which is why this is so necssary.

 

It's long past time to bring this back to the public's attention. 

SO IF YOU WANT TO HELP, HERE'S HOW.

In the meantime, keep on singing. Keep on dancing. No matter how you groove.

In Residential Care Situations, What Are Essential Visitors?

These days when I come across an interesting issue or article in the media, I generally just post on FaceBook, reasoning that at least that way it will receive some attention. You may not know this but legal blogging is  a very labour and time-intensive craft (at least it is if you want to do it right) and many days I find it hard to keep up with both my practice and my life.

Although something may indeed better than nothing, the downside is that it limits how much commentary I can provide on any given issue, so it really isn't the same, is it? 

So just as I would about to add this link on the MMC Legal Services FB page , I stopped, took a deep breath and made the decision bring it here instead. Consider it a small effort at atonement.

I know for a fact that the restrictions on visitation at Dept of Community Services home in Nova Scotia has affected many individuals and their families. Although I don't know for sure exactly how negatively people have been affected here, I do know that Nova Scotia could sorely use something along the lines of this proposed Private Member's Bill in Ontario.

Many, including Taylor, hope that a private-member’s bill introduced in September 2020 could lead to change. The More Than a Visitor Act, proposed by Lisa Gretzky, NDP critic for the Ministry of Community, Children and Social Services, aims to ensure that caregivers of a group-home resident would not be treated “merely as a visitor,” especially in emergency situations. The bill defines a caregiver as an individual who “continuously or occasionally provides significant, unpaid, non-professional support to a person receiving care, support or services,” shares an “emotional bond” with the person who receives care, and is considered by the person receiving care, or their substitute decision-maker, to be a designated caregiver. “A designated caregiver,” the bill reads, “may be a family member, a neighbour, a friend, a support person, an attorney for personal care or property under the Substitute Decisions Act, 1992 or another similar type of person.”

There's already been one successful human rights decision on this issue in Ontario, in which the Commission found that a child's disability-specific needs were violated when a rigid visitor restriction policy initially allowed for only video calls or drive-by visits and when in-person visits were allowed, they were required to remain six feet apart from residents. Unfortunately, due to a  communications disability, the child could not use words to communicate, instead relying on  touch, hugging, pulling on hands, gestures and other physical displays of expression.

This decision raises (and answers) many complex and timely issues.

Significantly, the Tribunal found that “[h]uman rights protections do not go away in a pandemic”, despite the service provider's argument that the unprecedented nature of the pandemic did not allow space for individual human rights protections or individualized assessment. Although the pandemic raised important and difficult issues, service providers were still required to follow the requirements of the Code. The human rights framework is robust enough to address many contexts – including a pandemic where safety and health considerations require particular attention. 

The next point of interest is Commission's response to the argument that the parents were at fault for failing to try out the alternative methods of communication proposed offered and instead “insisted upon their preferred accommodation.” The Tribunal rejected this, finding that once the parents had made an accommodation request and explained why the alternatives offered were insufficient, it was incumbent upon the Respondent to actually consider their request, as opposed to insisting that their way was the only way. 

Although the duty to accommodate requires the cooperation of both parties cooperative process, the ultimate responsibility for finding and implementing the accommodation solution remains with the respondent.          

The third important finding relates to the effect of government guidance around safety protocols on human rights obligations. The provider asserted that it was required to strictly follow the government guidelines and couldn't deviate from these to accommodate any individual. However, the Tribunal found that such directions were advice and recommendations intended to guide service providers in their decision making. 

This mandated that the service provider implement the government’s guidelines and recommendations with its mind turned to the individual human rights of its residents. The accommodation request must be investigated and an assessment of the actual risk of accommodating the individual must be undertaken. As they had failed to do this, it was unable to demonstrate that accommodating these individual needs would amount to undue hardship.

The ball was in the respondent’s court to consider the applicant’s accommodation request, and seek its own public health advice on that specific request. It did not do so. Instead, it remained steadfast in its approach. Because the respondent did not investigate the applicant’s accommodation request, there is no objective health evidence that it would have caused undue hardship to grant the request in terms of jeopardizing the health and safety of the residents and staff in the applicant’s home. (para 132) 

Although the Tribunal’s decision relied heavily on the individual facts of the case (the child came with particular pressing needs to have meaningful contact with his parents; the group home had only two residents, which was a relatively controlled environment; and the public health authority was supportive of an individualized risk-based assessment informed by the rates of transmission in the region at that time). all of the above were important factors in the Tribunal’s determination. 

I would submit that there is a strong argument to be made that such such accommodations must be guaranteed to  adults as well. There are a myriad of factors to be considered when individuals have developmental disabilities or delays. For example, outdoor visits with strict rules around touching can be very confusing and upsetting for these individuals, no matter their age. 

The definition of "essential visitors" in residential care situations must include parents or other significant individuals and accommodations must be made [to the point of undue hardship] to meet everyone’s needs. The law requires it.

Self-Represented Litigant Resources

I am please to say that I garnering quite a collection of Self-Represented Litigant {"SRL") resources. I just added one more to the list today.

Guide for SRLs with Disabilities: Understanding Your Rights and Requesting the
Assistance you Need 

You can find all the SRL resources in the sidebar on the right-hand side of the page, immediately under the heading, Featured Posts: Groundbreaking Ontario Human Rights Decision Special Education Decision.

Please check them out. You never know when they might come in handy.

It's About Time ... Canada to Relax Medical Accessibility Issues

Canada, in many ways very progressive, has had long-standing issue with respect to immigration policy when it comes to individuals with a family member with a disability. In such situations, immigration is usually denied under a "medical" exclusion; namely, "medical conditions that ... cause[s] excessive demand on health or social services". 

As just one of numerous examples, in 2017, an American family moved to Manitoba after purchasing a hunting and fishing business. However, their application for permanent residency was denied due to  their 6-year-old daughter's intellectual disability.

At that time, the limit for “excessive demand” was set at $6,655 a year, said to be the average annual health and social service spending per Canadian. If the costs of caring for a person’s condition were higher than this, the applicant and all family members were denied permanent residency. 

Where to begin?

Let's start with the $6,655.00 figure - the supposed average annual health and social service spending per Canadian in 2017. 

A Global investigation revealed the figures used by Immigration Canada to determine “excessive demand” and the denial of permanent residency does not accurately reflect the cost of providing health and social services in the country. Global’s reporting found the government doesn’t accurately account for up to $40-billion in annual social service spending – or roughly $1,105 a year per Canadian. This means the $6,655 limit used to deny applicants should be at least $7,404 if all social service spending is accounted for accurately.

Sadly, Immigration officials made other errors when assessing this family’s application, such as failing to  take into account their contribution to the local economy and unfounded claims about excessive costs on the local school. The family had come to Canada through the Provincial Nominee Program, meaning the Province had already recognized the beneficial investment they were bringing due to their business acumen, business plan and business experience.

Even the local School Division Superintendent recognized that, due to the fact that (as in most, if not all Provinces) special education is funded on a “block” basis, the Division's overall budget wouldn't change as a result of admitting Karalynn.

 "QUITE SIMPLY, THIS CHILD IS IN OUR SCHOOL DIVISION AND SO THEREFORE WE EDUCATE THIS STUDENT REGARDLESS OF ANY NEEDS ETC. IT'S OUR JOB," HE SAID. "WHETHER THIS STUDENT IS HERE OR SOMEPLACE ELSE THAT WON'T CHANGE OUR FUNDING."

The legal definition of ‘excessive demand’ is very broad in that both physical and mental conditions and disabilities make a person potentially inadmissible even if the treatment cost is only slightly higher than that for the average Canadian. 

To add insult to injury, as noted above, this exclusion can be applied to family members who don't have a medical condition. Thus, if a principal applicant applying for economic-class immigration has an accompanying dependent found medically inadmissible, that principal applicant is also inadmissible. 

Looking for an example a little closer to home? Even worse??

Can We Chat?

First, mea culpa. It's been a while since I posted. I'm more or less blaming that on Covid brain.

But. Two things.

First, I just came across an Ontario law firm [Pooran Law] whose tagline is Whole Life Planning and Legal Support for Life. I strongly suggest you check it out. 

Although some items will be province-specific, a lot of the material will apply. I have added the firm to the sidebar of the blawg - right now, it's in top position but I will be moving it further down the sidebar later.

Second, I have started on some draft blog posts, including some that are Covid specific (the legal obligation to wear mask and Covid's effect on special education) and others of more general interest, such as a new case out of Ontario concerning discrimination in university and the restraining and exclusion of students with disabilities in public school.

So, please stay tune.

Hoping for Good News [Round Two]

I'm hoping (and praying) for some good news today.

Some night recall the Federal government's "thwarted" attempt in June to provide a one-time non-reportable payment to individuals with disabilites to "navigate the effects of the [COVID] outbreak" and "assist with additional expenses incurred during the pandemic". "

Thwarted" by party politics, it was.

Today, they return to the House of Commons for Round Two:

Today, the Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, announced that the Government of Canada intends to propose legislation that would make the benefit available to more people and expand the one-time payment to include approximately 1.7 million Canadians with disabilities

You will qualify if you receive any of the following benefits/services:

•  a Disability Tax Credit certificate provided by the Canada Revenue Agency;
• Canada Pension Plan disability benefit or Quebec Pension Plan disability benefit; or
• disability supports provided by Veterans Affairs Canada.

This too is good news in that eligibility criteria have been expanded. I'm fairly confident that the original proposal would have only provided the payment to those in receipt of the Disability Tax Credit.

Here's hoping and praying that the Department of Community Services doesn't claw this one back too (as they did with the CERB).

ROUND TWO [bell rings]

Lessons Learned: The DTC Appeal Process [Part III]

As noted in my last post, applying (or re-applying) for the DTC involves having the relevant medical
practitioner provide the required information on the T2201 form. Depending on the extent of the
individual's challenges, you might want to consider having the medical practitioner send along an additional letter or report with the application form.

I.   The Appeal Route: Roads Not Taken?
There are three possible methods to challenge an initial denial of he DTC; namely

• reapply for the DTC;
• request an informal review; and/or
• file a Notice of Objection (formal appeal).

Although you can re-apply at any time, unless something has changed (or you now have significant new medical information to provide) with the person's situation, you are probably just as well (or better) off to proceed through the appeal route.

Whether proceeding with an informal review or a Notice of Objection, you will want to highlight
specific information found in the T2201 form and any included correspondence that shows how the effects of the person's impairments on their ability to perform the Activities of Daily Living. Remember, you are now providing  information to an individual who has no prior knowledge of the situation and must highlight for him or her the facts that you believe makes the person eligible for the DTC.

You have one year from the date of the denial to request an informal review but only 90 days to pursue the more formal Notice of Objection. If this timing sounds illogical to you, I agree but it is what it is.

Unfortunately, this timing issue can make things a little more complicated. As it could take anywhere from six months to two years to receive a response to your request for an informal review, you might well still be waiting for that response as you approach the one-year time limit to file a formal Notice of Objection. For this reason, you need to document your timelines carefully and make sure you file a Notice of Objection two or three weeks prior to the one-year time limit, even if you haven't yet received a response to your informal review.

II.  The So-called Requirement of 'Additional Medical Information"

Whichever route you take, it's important to include any new medical information that you have not already supplied, such as new or updated medical reports, or an additional letter from a medical practitioner who is familiar with the situation. This additional information will clearly focus on how the impairment affects the activities of daily living.

However, it's important to realize that although you can (and should) supply any additional helpful medical information you can, you are most certainly not obligated to do so.

This is extremely important because the CRA appears to have taken the ludicrous (and totally unsupported) position that it CANNOT and WILL NOT review any application unless additional medical information has been provided.

This is exactly what occurred when I requested an informal review of the denial of my youngest daughter's re application for the DTC and it's flatout not true. This position violates not only the
CRA's own Taxpayer Bill of Rights, but also the broader legal principle that when appealing a government decision you have the right to have that decision reviewed by an independent party (someone not involved in the original decision) whether or not you have new information to provide.

Whether a review or appeal, should you receive such a response, know that the CRA is simply up to  its old tricks. Unfortunately, too many people don't realize this and once they receive a letter denying their request for a review, they simply move on. Thank goodness I (and now you) know differently. If you receive such a response, simply move on to the next level of appeal and file a Notice of Objection.

III. The Notice of Objection
The procedure for filing a Notice of Objection is set out here, along with information as to the  documentation required. Note that there is no mention of a requirement to provide any additional medical information, only the "relevant facts and reasons for your objection" and "copies of all documents that support your objection". This supporting documentation will often be as simple as the T2201 form you originally sent to the CRA (along with any additional material that might have been attached).

It appears that the CRA is effectively requiring the majority of DTC applicants to reach this level before providing any semblance of due process. Unless your case is an obvious slam dunk (as occurred with my daughter and other situations I've recently become aware of), you can expect to receive a phone call from the authorized CRA officer prior to the the final decision being made.

V. The Tax Court of Canada
Should your Notice of Objection be dismissed, you have one final avenue of appeal to the Tax Court of Canada. However, I cannot recommend you take on this level of appeal without legal counsel.

VI. One Final Step: the Service Complaint
You also have the right to lodge a service complaint with the Office of the Taxpayer's Ombudsman. Please don't write this step off as a waste of time.

One of the issues noted in the "2019 First Annual Report of the Disability Advisory Committee: Enabling access to disability tax measures – Report in brief"was that the CRA doesn't
adequately share information about the results of objections or appeals with its employees, which negatively affects the Agency's ability to  improve its performance. Assessment decisions that are overturned  may signal inconsistencies in assessment or objection processes and sharing such information should reduce the numbers of objections and appeals.

The  CRA agreed and has explained that it is committed to ensuring that objection and appeal decisions are shared with all assessing and audit areas.

Let's do our part to give them a little shove push in that direction.

* With a tip of the hat and many thanks to Dan Paladin of Padalin Disability Tax Credit Solutions.

Lessons Learned; Appealing a Denial of the Disability Tax Credit [Part II]

In the last post, we looked at some of the many issues surrounding the eligibility requirements for the Disability Tax Credit ("DTC") and I promised to discuss the DTC appeal process, including some lessons I recently learned in successfully appealing the denial of my daughter's re- application for the DTC.

However, before doing that, I would like to discuss some of the tricks the CRA has been using to deny eligibility in the first place, hoping that arming you with this additional information might well help you be more successful in either your initial application or any required appeal.

Even though the actual eligibility requirements haven't changed, the interpretation of those provisions have become significantly tighter such that CRA agents are now imposing stipulations not prescribed by the legislation. Put another way, the CRA is (and one must wonder if intentionally) making errors in law. After all, it's not like these issues haven't been previously brought to its attention. Many. Many. Times.

There was the 2017 issue with respect to the eligibility of applicants with Type 2 diabetes:

Last May, the CRA told its staff not to honour claims for the disability tax credit. The agency had concluded that Type 1 diabetics were not using 14 hours of their time each week to manage their insulin therapy, which was the minimum required in the agency’s view.

Once disability advocates learned of that move and went public, the CRA promised to revert to the previous clarification letter (basically meaning they " took it back") and agreed to review all denied applications dating back to the date the revised rule was put in place.

Then there are the CRA guidelines* that require that impairment due to mental illness be present continuously for 90 per cent of the time. In addition to the fact that the 90% figure is found only in the CRA policy and has no basis in law, the very nature of mental health disabilities means it is often “temporary, episodic and changing in nature, with symptoms varying in severity and duration over the course of peoples’ lives”. Sadly, data from the fiscal year 2016 to 2017 showing a 53% increase in the number of rejections of applications from people living with mental illness is no surprise.

Being Proactive with More Difficult Applications

Applying (or re-applying) for the DTC involves having the relevant medical practitioner** provide the required information in the T2201 form. Although this process mostly involves checking off
affirmative or negative responses and filling in a few blanks, there are some places for additional information to be wrote in.

Don't let the fact that the T2201 form states that "working, housekeeping, managing a bank account, and social or recreational activities are not considered basic activities of daily living. Basic activities of daily living are limited to walking, speaking, hearing, dressing, feeding, eliminating (bowel or bladder functions), and mental functions necessary for everyday life" deter you. Ignore and carry on.

For individuals with obvious severe disabilities, the form,itself, should likely be sufficient. However, depending on the extent of the challenges faced, you might want to consider having the medical practitioner send along an additional letter or report with the application form.

As we all know, some disabilities are much recognizable and relatable to the uninitiated than others. For this reason, it is wise to proceed with a little more care if (for example) the applicant has a learning disability or a  number of smaller impairments in many activities of daily living ("ADL"). The challenges brought about by some disabilities take more time and detail to fully explain and in other situations, although the level of impairment in any particular ADL might not meet the required degree of impairment, often the cumulative effects in all areas of daily living might qualify as a "significant restriction"(the equivalent of being markedly restricted in one basic ADL).

In such situations, I recommend you book an additional or lengthier appointment with the medical practitioner so you can provide additional information (both for the benefit of the medical practitioner and the CRA) as to the extent of the effects of the individual's daily functioning. We're looking for practical examples of how the individual's particular challenges affect their day-to-day living as that information is critical when it comes to meeting the eligibility requirements.

A few very important things to remember here:
Before doing this, make sure that you have taken the time to compile in written form  the details you want to provide; although you will verbally pass this information on to the medical practitioner, you want to make sure you don't miss anything and you never know which piece of evidence might be sufficient to break the CRA's back.

Depending on the extent of the individual's challenges and insight, it might well be worthwhile to compile this list with the help of the individual and have them participate in the appointment. Although the process of getting these practical examples from my adult daughter often felt like "pulling teeth", with perseverance and persistence, we were able to provide the psychologist with an impressive list of practical effects that she had no other way of knowing, even as the "treating professional".

Further, be aware of the language used in any such written material - perfectly normal words such as "could", "might" or "should" can and will be relied on by the CRA to deny eligibility. That's part of the reason why real-life examples of how the challenges impact the person's daily life are so critical - it totally reduces the need for speculation (which can and will be used against you).

Stay tuned for a further detailed discussion of the DTC appeal process and the pitfalls to avoid.

* Note that "guidelines" do not have the legal force of law. To be valid, regulations, "guideline" and "policy" cannot contradict the enabling legislation.

** The appropriate medical practitioner will be a medical doctor, nurse practitioner, optometrist, audiologist. occupational therapist, physiotherapist, psychologist or speech-language pathologist, depending on the disability involved; however, whenever possible I recommend using the most specialized professional in the relevant field (for example, it is better to use a neurologist than a family doctor).

Lessons Learned: A Review of the Disability Tax Credit; Part I

There's much going on and so much wrong in the world today, that it's hard to even know where or how to start. In all honesty, right at the moment, I'm finding it hard to move off the couch after my daily date update with Justin.

But life (more or less) goes on and for the past few months I've wanted to update a topic we haven't discussed in quite a while - the Disability Tax Credit ("DTC"). When we first discussed the DTC in 2007, I explained how and why it's so much more than just a tax credit and I would recommend refreshing your memory on that. 

Not only does the DTC give a nice size tax credit to an individual with a "profound impairment" resulting in them being "markedly restricted" in any of the basic activities of daily living {"ADL"), it is the gateway to access other federal tax programs and benefits, such as the Registered Disability Savings Plan ("RDSP") and the Child Disability Benefit (a supplement to the Child Tax Benefit).

The full eligibility requirements for the DTC can be found here.

Bottom line; the DTC can be extremely important for you and your children (as applicable).

However, the DTC is notoriously hard to receive and unfortunately, that situation has only worsened over the past few years.

Only 40 per cent of the more than 1.8 million people who live with severe disability in Canada use the federal disability tax credit (DTC). And the mind-numbing rules devised by the Canada Revenue Agency to assess eligibility for the credit are likely one of the main reasons for such poor uptake.

That’s the conclusion of a recent review of the credit by the University of Calgary’s School of Public Policy, which also cites low awareness of the credit and limited understanding of its potential benefits as possible causes for low participation rates.

In fact, the situation is so bad that many who should qualify don't even bother to apply.

Although the wording of the eligibility requirements set out in the legislation hasn't changed significantly, the way those provisions are being interpreted by the CRA have become so tight that they verge (and often cross the line into) ridiculous.

In 2019, a government panel tasked with examining the federal tax measures offered to Canadians with disabilities made several recommendations to improve the DTC situation for Canadians.

To state, as the Panel did in the "2019 First Annual Report of the Disability Advisory Committee: Enabling access to disability tax measures – Report in brief" that "receiving the credit can often be an uphill battle that requires navigation of a complex set of requirements in the application phase" is a huge understatement.

One of the recommendations made was that the CRA change the requirement that a person must have a "severe or prolonged impairment" that restricts an activity of daily living that is present “all or substantially all the time.” An applicant will be considered "markedly restricted" in at least one of the ADL if "all or substantially all the time", he or she cannot (or takes an inordinate amount of time to) do one or more of the basic ADL.

This is where it gets interesting - although the legislation does not specify a percentage to define "all or substantially all of the time", the CRA in its infinite wisdom has decided that a  person must be markedly restricted at least 90% of the time, something that has NO basis in law.

The 90 per cent interpretation is problematic for those with mental disorders and for those with disorders that are characterized by episodic symptoms,” said Dr. Karen Cohen, co-chair of the committee.

There were numerous other recommendations, including that the CRA make the application form more readable and offer a second review when a claimant with long-standing eligibility for the credit is suddenly rejected. A summary of all the recommendations can be found here.

Now that we have reviewed the importance and challenges involved with the DTC, in my next post we will look at the appeal process and the lessons I recently learned in successfully appealing the decision that my adult daughter longer qualified for the DTC.

* You can learn more about other tax measures for individuals with disabilities here.

Estate Documents: When is it Too Late?

I want to share a very sad situation I was recently involved in so that hopefully it won't happen to any other family.

I was approached by a gentleman seeking estate documents [Wills, Powers of Attorney ("POA") and Personal Directives ("PD")] for himself and his wife, who was hospitalized with a terminal condition. I took instructions, completed the documents and attended at the hospital so they could be signed.  However, when I spoke to the wife, I immediately realized we had a problem - she did not appear to have the legal capacity required to validly sign the documents.

Although the instructions the husband had given sounded perfectly reasonable and I had no reason to think that this wasn't what she wanted, I could not proceed with having the wife sign the documents.

What's required for a person to have the "legal capacity" will vary depending on the act to be performed. However, in general terms, in order to execute legally valid documents, you must have a certain level of competency. You must have the ability to understand the information relevant to making the decision and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Unfortunately, mental competence can become an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. This is why it's critical that Wills and other estate documents be completed while you are in good health so that there are no questions as to your mental competence.

I felt bad for both parties but it emphasized how important it is to prepare such documents before it is too late.

Note to yourself: there's a good chance it will be "too late" to proceed with such documentation when you already have a terminal diagnosis.

This is especially so when you consider leaving assets in a Will to a beneficiary whom is challenged.

For more information on the standards required to execute valid estate documents, please follow the link.

Biased? Who, Me? [Reasonable Apprehension of Bias]

This is a follow-up (or, perhaps more accurately, a follow-on) from my most recent blawg post regarding students with behavioral challenges, in which which I noted that the parent had (unsuccessfully) argued that the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards.

You will recall that the parent argued that her son required Applied Behaviour Analysis ("ABA") in order to receive a meaningful education. She was concerned that the adjudicator was predisposed to find that ABA was not education because

• during his legal career, a large part of his practice involved representing school boards in the areas of special education, human rights and litigation;
• in that capacity, he “repeatedly appeared as counsel to school boards seeking to achieve a finding that ABA is incompatible with education of autistic children”;
• the fact that he had argued on behalf of a school board that intensive behavioural intervention ("IBA") therapy was not a special education program or service raised a reasonable apprehension of bias arose with respect to the current situation;
• subsequent to those court cases, he had advised his school board clients that ABA was incompatible with the education of autistic children; and
• in an interim decision, he had placed restrictions on the parent’s evidence which precluded her from giving opinion evidence relating to whether “ABA at Tier 3" was education.

You will note that the correct wording is "a reasonable apprehension of bias", not that an adjudicator or judge is actually biased. The reason for this is two-fold; not only would it be much more difficult for a party to prove that the decision-maker is biased, but even the appearance of bias (to a reasonable observer) is enough to disqualify a decision-maker from hearing the case. I'm sure we're all at least somewhat familiar with the old adage that "Justice must not only be done, but must be seen to be done".

The test for finding a reasonable apprehension of bias is as follows:

. . . the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),
p. 94]

Lawyers are ethically bound to make the best possible arguments on behalf of their clients, whether or not they reflect their personal views. Just because a lawyer advocates a certain position does not mean that he or she agrees with it. Further, having existing, even publicly expressed personal views prior to appointment should does not generally lead to a reasonable apprehension of bias.

It more or less makes sense if you think about it: to find otherwise would preclude adjudicators (and judges) from ever hearing cases in which an issue arises or might arise that also arose in a case in which they acted as counsel prior to being appointed.

... True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.[Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p.12]

Many, however, have (quite legitimately, I believe) questioned how or why a judge can decide for himself whether or not he or she is biased. Shouldn't it be a different impartial actor in the justice system who makes this decision? I have often asked (or at least thought) the same question myself.

But the fact is that it is very judge whom appears biased to you that will decide whether you are right, whether he or she is biased (or at least appears that way). That's what makes an application for recusal on the basis of a reasonable apprehension of bias something to be very carefully thought through. Should you be unsuccessful in the bias application, the same individual you challenged will remain the ultimate decision-maker - this is the self-same person you will need to convince of the rightness of your case. And all of us are, after all, only human.

Although there is a right to appeal a judge's decision that there is no reasonable apprehension of bias, I believe it will be a very uphill battle to convince an appeal court overturn the initial judge's findings.

For any wishing to delve deeper into subject, I will send you off here. Happy travels.