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Il importe peu qu’il y ait ou non lis inter partes, au sens judiciaire traditionnel, à une audience devant l’Office pour l’octroi d’un certificat, puisque l’Office est tenu d’appliquer des normes légales à toute demande et, de fait, puisqu’il est en présence, en l’espèce, de demande en conflit, la similitude avec un lis s’accentue.
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Of course, the functions of the Board are different from the functions of an applicant or group of applicants for a board certificate, just as the functions of a court are different from those of a litigant seeking a favourable decision. It does not matter whether or not there is a lis inter partes, in a traditional court sense, in a Board hearing for the grant of a certificate, so long as the Board is required to apply statutory standards to any application, and, indeed where there are, as here, competing applications the resemblance to a lis is increased. An applicant seeking a certificate must inevitably direct itself to the statutory prescriptions by which the Board is governed, taking into consideration of course, the scope of discretion which those standards permit. To say, therefore, that the issues before the Board are different than those to which the Study Group directed itself is not entirely correct, save as it reflects the different roles of the Board and of the Study Group. Moreover, it does not meet the central issue in this case, namely, whether the presiding member of a panel hearing an application under s. 44 can be said to be free from any reasonable apprehension of bias on his part when he had a hand in developing and approving important underpinnings of the very application which eventually was brought before the panel.
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