Federal Court Finds Bias in Tribunal Chair’s Dismissal of Canadian Immigration Case
A recent Federal Court decision has added a surprising twist to a long-running human rights complaint involving the Immigration Department. The court ruled that the former head of the Canadian Human Rights Tribunal demonstrated an “apprehension of unconscious bias” in dismissing a university professor’s discrimination case. According to the decision, Chair David Thomas lost the necessary objectivity required of an adjudicator when he personally defended himself from bias allegations in an unexpected addendum to his ruling. The case now returns to a newly assigned Tribunal panel for redetermination, shining a spotlight on unconscious bias, the delicate balance between fairness and impartiality, and the pitfalls of self-representation in complex legal matters.
The Complaint
The underlying human rights case dates back to 2010, when Amir Attaran—a University of Ottawa law professor of American-Iranian heritage—filed a formal complaint against what was then known as Citizenship and Immigration Canada (now Immigration, Refugees and Citizenship Canada). He argued that the government’s extended wait times for parent and grandparent sponsorships amounted to discrimination based on age, race, ethnicity, and family status. At the time, sponsor applications for spouses or children took about 42 days to process, while parent and grandparent sponsorships averaged 37 months.
The Canadian Human Rights Commission (CHRC), which serves as the gatekeeper for such complaints, initially dismissed Attaran’s claims but was overruled on appeal to the Federal Court of Appeal. Eventually, the matter proceeded to a full hearing before the Canadian Human Rights Tribunal in 2021, presided over by Chair David Thomas. By then, Attaran’s parents had already become permanent residents, but he continued with the complaint in hopes of securing a systemic remedy for others in similar situations.
Heated Exchanges and Allegations of Bias
About halfway through the Tribunal hearing, Attaran objected to what he perceived as a double standard in the way Thomas handled cross-examination of expert witnesses. Attaran made references to unconscious bias against himself or his witness, who was Asian and female, compared to a government expert who was white and male.
Thomas responded that Attaran’s “mannerisms” were disruptive and intimidating. Attaran contended that any criticism of his personal style, especially in the context of alleged racial bias, was inappropriate. He formally placed the bias concern on the record, labelling it an “apprehension of unconscious bias,” but declined to ask Thomas to recuse himself. The Tribunal adjourned, and proceedings resumed months later after Thomas issued a “Decorum Directive,” instructing the parties to refrain from further bias allegations unless formally moving for recusal.
Tribunal’s Ruling and Addendum
In July 2023, Thomas delivered his final decision, finding that the Immigration Department’s slower processing times for parents and grandparents did not constitute a “service” under the Canadian Human Rights Act and thus were not discriminatory. However, the ruling included a seven-page “Bias Allegation Addendum” in which Thomas personally rebutted Attaran’s accusations. He stated that “some of [his] closest friends are from Iran” and that Attaran did not appear to him to be a visible minority—remarks that the Federal Court would later interpret as evidence of a subjective, rather than objective, self-defense.
Thomas also dismissed the concept of “unconscious bias” as largely unproven, citing his doubts that such allegations could ever be definitively proven. He framed Attaran’s complaint about bias as a form of “intimidation,” undercutting the seriousness with which most courts or tribunals are expected to treat claims of racial or ethnic discrimination.
Federal Court’s Critique
Justice Henry Brown of the Federal Court took issue with how Thomas handled the bias allegation. In a January 2025 ruling, Brown faulted the Tribunal for two major errors:
- Procedural Fairness
By declaring in an “unexpected addendum” that Attaran’s bias claims lacked merit, Thomas denied the parties any notice or opportunity to respond. The court found this breached fairness norms because the Tribunal had not advised that it would formally rule on unconscious bias at the end of the process, nor had it invited further submissions. - Loss of Objectivity
Brown held that Thomas improperly personalized his response, offering anecdotal arguments about having Iranian friends and stating that Attaran was not visibly a minority person. Such defenses, the judge wrote, replaced the required legal framework with Thomas’s subjective viewpoint. The court found that a well-established test for bias should be whether a reasonable, informed observer would fear partiality, not whether the adjudicator personally felt offended or believed himself free of bias.
As a result, the court set aside the Tribunal’s entire decision on grounds of a “reasonable apprehension of unconscious bias.” It remanded the case for a rehearing before a different Tribunal member.
Implications
The Federal Court’s decision underscores how critical impartiality is for administrative tribunals, particularly those dealing with human rights. It highlights two key lessons:
- Unconscious Bias Is Taken Seriously
Courts recognize that bias may not be deliberate or obvious. By delving into the concept of unconscious bias, this case opens broader discussions about subtle forms of discrimination, even among those who believe themselves objective. - Importance of Proper Procedure
Allegations of bias, once raised, need timely resolution. Ignoring them or dismissing them in an after-the-fact addendum robs the parties of due process. Moreover, an adjudicator must remain dispassionate; personal rebuttals can compromise the appearance of impartiality.
What’s Next?
The complaint will be heard again by a new panel at the Canadian Human Rights Tribunal, which must address whether parent and grandparent sponsorship delays constitute discriminatory action by immigration officials. The Federal Court’s ruling also serves as a reminder that those who represent themselves—like Attaran—risk procedural snares, especially in highly charged areas like human rights law.
While self-representation is allowed, legal experts caution that it can result in misunderstandings about motions, evidence requirements, and allegations such as unconscious bias. A brief consultation with a lawyer might help parties navigate complex proceedings, ensuring their claims and defences are presented effectively—and preventing abrupt derailment if conflicts with decision-makers arise.
Ultimately, the court’s admonition that “bias is a serious matter” resonates. Whether or not unconscious bias is proven in a particular case, tribunals must exercise extreme care in handling such allegations, aiming to preserve both actual and perceived fairness. This case stands as a reminder that good procedure, open-minded adjudicators, and, often, solid legal representation remain essential pillars of justice in Canada’s human rights framework.