One of the most intractable difficulties in this area is the assumption that the so-called 'reasonable observer' is actually a real person. As has been argued and as Jacobs suggests (though she does not condemn the assumption outright) in her paper, the 'reasonable observer' is purely a judicial construct.
At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence. This article will be published in the next issue of the Osgoode Hall Law Journal (51:2).
Accordingly, the appropriate question for a court to ask when a bias problem arises is not, "Would the hypothetical reasonable person think the decision-maker was not impartial?" but "Should the decision-maker recuse herself?" A similar problem sometimes arises with respect to the test for unreasonableness in substantive review. Again, the question should never be, "What would a hypothetical reasonable decision-maker have done or not done?" but rather, "Should this decision be struck down for unreasonableness?"
Answering these should questions is not easy. Constructs of 'bias' and 'reasonableness' must be developed. Jacobs suggests that five contextual factors may assist courts in dealing with impartiality claims. However, abandoning the pretense that hypothetical reasonable persons have any role to play in administrative law adjudication is a necessary pre-condition to a meaningful contextual inquiry. I am not sure that Habermas, Rawls et al have a crucial role to play, but the effort to integrate their insights is interesting.