Date: 20051104
Docket: T-1519-04
Citation: 2005 FC 1503
Toronto, Ontario, November 4, 2005
PRESENT: THE HONOURABLE MR. JUSTICE O'KEEFE
BETWEEN:
GRANT GALE
Applicant
and
TREASURY BOARD
(Solicitor General Canada Correctional Service)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 for judicial review of a decision of an adjudicator appointed under the Public Service Staff Relations Act, R.S.C., c. P-35. The applicant seeks that the July 16, 2004 decision of the adjudicator, upholding the termination of the applicant's employment, be quashed and set aside, with costs to the applicant.
Background
[2] The applicant was a correctional officer at the Saskatchewan Penitentiary until his employment was terminated in November 1999. The termination resulted from an allegation of a single incident of sexual harassment on May 19, 1999 when the applicant and complainant were both working at the maximum security Federally Sentenced Women's Unit ("FSWU") of the Saskatchewan penitentiary. The applicant has denied the allegation since the commencement of the complaint and throughout all the proceedings. During the course of the hearing, the adjudicator raised the question of the whereabouts of another employee, L. Mardell, at the relevant time, as the staff roster appeared to indicate that L. Mardell was on the FSWU but had submitted no incident report. The applicant asserted that if L. Mardell was not on the unit at the relevant time, it confirmed his statement that all staff on the unit at that time would have responded to the incident and submitted a report, thus removing credibility concerns about the applicant's testimony.
[3] The adjudicator's initial decision to uphold the termination of the applicant's employment was the subject of a judicial review before the Federal Court. The affidavit evidence before the Court indicated that the adjudicator raised the issue of the whereabouts of L. Mardell at the relevant time. As the respondent could not confirm this information at the hearing, the respondent was to obtain this information and send it to counsel for the applicant who would then forward it to the adjudicator. The decision was rendered without the adjudicator having received the confirmation as to L. Mardell's whereabouts. The application for judicial review was dismissed by the Federal Court and that decision was appealed to the Federal Court of Appeal.
[4] The Federal Court of Appeal allowed the appeal, set aside the decision of the Trial Division, and quashed the adjudicator's decision on the basis that the adjudicator had rendered his decision before receiving the information he had requested and indicated was of interest.
[5] The Court of Appeal stated:
The appellant submits that the matter should be redetermined de novo before a different Adjudicator. The respondent says the matter may be remitted to the same Adjudicator to redetermine the matter taking into account the L. Mardell evidence and submissions in respect of it made by counsel.
We agree with the respondent that, in the circumstances of this case, the matter should be remitted to the same Adjudicator. . . . There is no suggestion here of bias. Nor is there any reasonable apprehension of bias. . . .
It was the Adjudicator who raised the issue that gave rise to the obtaining of the evidence in question and he is in the best position, upon considering it, to determine its effect on his determination. We would, therefore, remit the matter to the same Adjudicator for redetermination. The Adjudicator should take into account the information in the August 17, 2001, letter of counsel for the respondent respecting L. Mardell and provide the parties with an opportunity to make submissions as to its effect on the outcome of the adjudication. In all other respects, the Adjudicator is free to determine his own procedure.
[6] Counsel for the applicant subsequently submitted a copy of the August 17, 2001 letter to the adjudicator and advised that he wished to make representations on whether it was appropriate for the adjudicator to render a decision in the matter. The applicant requested an oral hearing to deal with both the recusal issue and the substantive issue, while the respondent requested the matter proceed in writing. The adjudicator determined that the issues would proceed in writing and after receiving written submission from both parties, rendered a decision dated March 24, 2004 declining to recuse himself, and determined that the issue to be dealt with pursuant to the Court of Appeal decision could be fully addressed by written submissions. The parties were provided with timelines within which to provide their submissions and they did so.
[7] The adjudicator rendered his decision on July 16, 2004, dismissing the applicant's complaint. This is the judicial review of that decision.
Issues
[8] The issues as framed by the applicant are:
1. What is the appropriate standard of review on an application for judicial review of a decision of an adjudicator of the Public Service Staff Relations Board?
2. Did the adjudicator fail to observe the principles of natural justice or procedural fairness, including the applicant's right to an impartial hearing and the right to be heard?
3. Did the adjudicator make a mistake of law or fact?
4. Assuming the decision was patently unreasonable, what is the appropriate remedy?
[9] The issues as framed by the respondent are:
1. What is the appropriate standard of review of the adjudicator's decision on the merits?
2. Did the adjudicator violate the principles of procedural fairness or natural justice?
Applicant's Submissions
[10] Issue 1: Standard of Review
The applicant submitted that the standard of review in this case is patent unreasonableness.
[11] Issue 2: Breach of Procedural Fairness
The applicant submitted that the duty on an administrative tribunal to act fairly consisted of both the right to an impartial hearing and the right to be heard (see 2001 SCC 35">Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3). The applicant further submitted that in keeping with the five factors outlined by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to determine the extent of the duty to act fairly in a given circumstance, the applicant in this case was owed a high degree of fairness.
[12] Right to an Impartial Hearing
The applicant submitted that the adjudicator did not approach the second hearing in an impartial manner. Instead, he used the opportunity to justify his actions in failing to consider the evidence concerning L. Mardell in the original decision. The applicant submitted therefore that there existed a reasonable apprehension of bias by the adjudicator. The applicant submitted that in light of the decision under review as well as the adjudicator declining to recuse himself from the case and refusing the applicant's request for an oral hearing without reasons, the adjudicator did not approach the matter impartially.
[13] The applicant submitted that notwithstanding that the adjudicator had raised the issue of L. Mardell's location at the time in question, noted it was a concern, and requested confirmation from the respondent, the adjudicator stated in this decision that the issue of L. Mardell's location was conceded at the hearing by the employer, and in any event, the information was irrelevant to the decision and upheld his original findings. It was highly inconsistent to request information before rendering a decision yet later state that the information had been conceded at the hearing and was irrelevant.
[14] The applicant submitted that rather than approaching the second hearing afresh and giving the evidence regarding L. Mardell due consideration, it appears that the adjudicator approached the hearing in a spiteful and resentful manner and simply took the opportunity to justify his original decision by attempting to artificially minimize the importance of the evidence concerning L. Mardell's location.
[15] The applicant submitted that therefore an informed person, viewing the matter realistically and practically, would conclude upon reading the decision of the adjudicator that he did not approach the matter impartially, whether consciously or unconsciously. This raises an apprehension of bias and breaches the applicant's right to an impartial hearing.
[16] Right to be Heard
The applicant submitted that the adjudicator's erroneous treatment of the evidence regarding L. Mardell, as previously noted, also breached the applicant's right to be heard. Further, the adjudicator denied, without reasons, the applicant's request for an oral hearing to make submissions on the effect of the evidence regarding L. Mardell.
[17] Issue 3: Error of Fact or Law
The applicant submitted that the adjudicator's mistaken finding of fact that the location of L.Mardell had been conceded at the original hearing lead him to make an error of law in concluding that the evidence was not relevant, when it was clearly relevant to the issue of the applicant's credibility. The Federal Court of Appeal had noted that this case was "one in which credibility was very much an issue, the complainant alleging sexual harassment and the appellant denying it."
[18] Issue 4: The Appropriate Remedy
The applicant submitted that the applicant should not be required to continue to go through a process which has already taken over five years. Instead, the decision should be quashed and the applicant should be reinstated in his position at the Saskatchewan Penitentiary. In the alternative, the matter should be quashed and a new hearing ordered before a different adjudicator.
Respondent's Submissions
[19] Issue 1: Standard of Review
The respondent submitted that the appropriate standard of review is patent unreasonableness.
[20] Timeliness
The respondent submitted that he applicant is out of time to challenge the procedural fairness elements of the adjudicator's decision related to (i) the fact that the same adjudicator heard the case after the matter had been referred back by the Federal Court of Appeal, and (ii) that the adjudicator decided that the rehearing would be done in writing. Those matters were decided in a preliminary decision released on March 24, 2004. The applicant proceeded on the merits and did not file his notice of application until August 19, 2004, long after the thirty day time limit specified in subsection 18.1(2) of the Federal Courts Act (see for example, Canada (Attorney General) v. Purcell (1994), 86 F.T.R. 232, [1994] F.C.J. No. 1649 (T.D.) (QL) and Moulton v. HCQ Handling Inc., 2003 FCT 762).
[21] Issue 2: Procedural Fairness
The respondent submitted that if the Court determines that the applicant is not out of time to seek judicial review, the applicant has failed to show a breach of procedural fairness. With respect to the applicant's submission on the adjudicator rehearing the matter, the Federal Court of Appeal ordered that the matter be returned to the same adjudicator rather than having the matter heard de novo before another adjudicator. Accordingly, there was no breach of procedural fairness in that respect.
[22] The respondent submitted that the Federal Court of Appeal ordered the adjudicator to provide the parties with an opportunity to make submissions as to the effect that evidence concerning the location of L. Mardell might have on the outcome of the adjudication. The Federal Court of Appeal also stated, "In all other respects, the Adjudicator is free to determine his own procedure." The adjudicator provided the parties with an opportunity to make submissions. The principles of procedural fairness do not require an oral hearing in every case and do not demand an oral hearing on the narrow issue remitted to the adjudicator for redetermination.
[23] The respondent agreed that a high level of procedural fairness was required and it was met as the parties understood the one remaining issue and were given opportunities to respond to it.
[24] Merits
The respondent submitted that the applicant's submissions in support of the allegation that the decision was patently unreasonable are simply a recital of the concerns raised in the submissions on procedural fairness. The adjudicator heard evidence and argument, including testimony from the applicant and the complainant, and rendered a decision that was reasonably open to him on the evidence and argument presented.
[25] Concession by the Employer
The respondent submitted that notwithstanding the fact that the issue of concession as to the location of L. Mardell played no part in the adjudicator's decision, both the adjudicator and Bonnie Davenport, in her affidavit, confirm that in fact the concession was made.
[26] The respondent requested that the application be dismissed with costs.
Analysis and Decision
[27] Standard of Review
The standard of review of a decision of an adjudicator under the Public Service Staff Relations Act is patent unreasonableness (see Green v. Canada(Treasury Board), [2000] F.C.J. No. 379 at paragraph 7 (F.C.A.)(QL)).
[28] After the matter was referred back to the adjudicator, the applicant requested the adjudicator to recuse himself because of a potential for an appearance of bias. The applicant also requested the right to make oral representations. The adjudicator refused to recuse himself and ordered that submissions were to be made in writing. These decisions were made on March 24, 2004. The application for judicial review was made on August 19, 2004. The respondent submitted that the application for judicial review of these two issues was out of time. I agree as subsection 18.1(2) of the Federal Courts Act requires the application to be made within thirty days after communication of the decision, unless an extension of time for filing was granted by the Court. No motion for an extension of time was made. In the alternative, if the application is not out of time for these two arguments, I am of the view that the adjudicator did not make a reviewable error in not recusing himself or by ordering that submissions be in writing rather than orally as requested by the applicant.
[29] The applicant submitted that a reasonable apprehension of bias was supported by the wording of the second decision of the adjudicator. In 2001 SCC 35">Re Therrien the Court stated at paragraph 82 that the duty to act fairly has two components:
Essentially, the duty to act fairly has two components: the right to be heard (the audi alteram partem rule) and the right to an impartial hearing (the nemo judex in sua causa rule). The nature and extent of the duty may vary with the specific context and the various fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, cited with approval in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, at para. 22, and Ruffo, supra, at para. 88. Thus, in Baker, supra, at paras. 23-28, L'Heureux-Dubé J. specifically pointed out that several factors have been recognized in the jurisprudence as relevant to determining what is required by the duty of procedural fairness in a given set of circumstances. While she did not provide a comprehensive list of such factors, she referred to: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) respect for the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures. It is from this perspective that I will now consider the allegations of breach of the rules of procedural fairness made by the appellant in the instant case.
[30] In Baker the Court stated at paragraph 46:
The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . [T]hat 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."
[31] I agree that the sending back of the issue to the same adjudicator does not in itself create an apprehension of bias.
[32] However, the adjudicator's second decision must also be reviewed when considering an apprehension of bias on the part of the adjudicator. For ease of reference, I will set out a portion of the adjudicator's decision dated July 16, 2004:
I wish to comment on one of the apparent reasons why it was deemed necessary to revisit my original decision of August 17, 2001.
At the initial adjudication hearing, as noted in paragraph 5 of the Federal Court of Appeal's decision (supra), I ". . . raised the issue of why another employee, L. Mardell, who was on the work list for that day, did not attend the prisoner incident."
. . .
If it was suggested to the Federal Court of Appeal that there were no time limits placed on the process of advising me whether L. Mardell was working on the day in question or not, this simply is not true. It would be unfortunate, indeed, if that was one of the reasons why the Federal Court of Appeal issued the reconsideration order.
In this particular case, at the conclusion of the hearing (July 12, 2001) the only issue outstanding was a response to my question of whether or not L. Mardell was working on the day in question. The parties told me that if the information was available, it could be obtained in a few weeks. Accordingly, as noted in paragraph 6 of the Federal Court, Trial Division's Reasons for Order (supra):
(. . .) It was agreed that counsel would submit the information by agreement to the Adjudicator within a few weeks. The process agreed upon was that counsel for the respondent would submit the information to counsel for the applicant. He would then send it on to the Adjudicator.
However, counsel for the employer conceded, at the adjudication hearing, that L.Mardell was not on the FSWU on the day in question. As noted in paragraph 15 of the Federal Court, Trial Division's decision (supra):
. . . counsel for the respondent conceded, at the conclusion of the hearing, that it had no problem agreeing that L. Mardell was not working on the FSWU but was in the A & D in the main institution as sworn to by the applicant.
After waiting more than a "few weeks", from the July 12 conclusion of the hearing, and without hearing anything from either party that the information was forthcoming, I issued a decision on the important issue of the grievor's termination on August 17, 2001. By coincidence, this was the same date that counsel for the grievor received confirmation from the employer's counsel that L.Mardell was not working in the applicable work unit on the day in question.
What was going to be submitted to me in writing, if it was indeed available, was confirmation that what Mr. Gale had testified to about L. Mardell was, indeed correct. The employer had already conceded this point at the conclusion of the hearing! The irony here is that the only possible impact a letter would have is if it disputed Mr. Gale's testimony. The employer had already conceded the point at the end of the hearing.
Whether L. Mardell was working on the day in question or not, played no part in my original decision to uphold the termination. Counsel for the grievor says it is a critical element in buttressing the grievor's credibility. Counsel for the employer says it is a red herring.
Essentially, what I was asked to determine in the original hearing was whether or not an alleged incident of sexual harassment occurred. As I noted in paragraph 2 of my original decision (supra):
. . The parties were ad idem with respect to the issue of penalty, namely the result should be either denial of the grievance (in the event the allegation is proven) or full reinstatement (in the event the allegation is not proven).
The case was literally a "he said, she said". Ms. "X" said the incident took place; Mr. Gale said it did not. Other than the two parties directly involved in the alleged incident, no one else witnessed the event.
I assessed all of the evidence and concluded that I preferred the evidence of Ms. "X" over that of Mr. Gale with respect to the alleged incident. The termination was upheld.
Now, counsel for the grievor suggests that since the employer has admitted that L.Mardell was not scheduled to work at the applicable work unit on May 19, 1999, then L. Mardell could not have responded to the inmate incident, which is exactly what Mr. Gale testified to. Counsel submitted, at paragraph 35 of his written submission "what Mr. Gale said was substantiated."
In my original decision, I did not state that everything that Mr. Gale said was not believable. I analyzed the events surrounding the alleged incident, and the recollection of other employees who, although not witnessing the actual incident, did observe and speak to Ms. "X" shortly after the alleged incident.
As I pointed out in my original decision, at paragraphs 132 and 133:
Cases involving serious allegations without witnesses other than the persons directly involved are among the most difficult for adjudicators to deal with. Issues of credibility often arise and adjudicators often refer to the decision of Mr. Justice O'Halloran of the British Columbia Court of Appeal in Faryna v. Chorney, [1952] 2 D.L.R. 354 for guidance here.
Justice O'Halloran states at page 356 of his decision:
If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box.
The evidence of Ms. "X" was that she was sexually harassed in Tier 1 of the work unit, by Mr. Gale, sometime between her arrival there at 11:10 and 11:25 a.m. on May 19,1999. Mr. Gale stated he was not on Tier 1 at that time. At paragraph 139 of my decision (supra), I wrote:
Mr. Gale states he was on Tier II typing his OSOR at 11:00 a.m. and it took about 45 minutes to complete . . .
The evidence at the adjudication hearing showed that Ms. "X" had been asked to go to Tier 1 to replace another female correction officer, Ms. Wilson-Demuth, who was involved in an interview with an inmate. It was not disputed that the employer's policy did not allow a male staff member to be alone on duty at the particular work unit.
The logbook indicated that Ms. Wilson-Demuth commenced her interview with the inmate at 11:10 a.m., and upon arriving at Tier 1, Ms. "X" looked into the interview room and saw the interview in progress. As I stated at paragraph 138 of my decision:
. . . This was not refuted in cross-examination . . .
Ms. "X" said the incident took place between 11:10 and 11:25 a.m. Mr.Gale said he was not there at that time. At paragraph 140 of my decision (supra), I wrote:
On these two versions, I prefer the evidence of Ms. "X" . . .
Does the fact that L. Mardell did not work on the FSWU on May 19, 1999, affect my conclusion with respect to this finding? Absolutely not. My conclusion was based on direct evidence surrounding the alleged whereabouts of Ms. "X" and Mr. Gale. Whether or not L. Mardell worked or not is irrelevant, in my view, to this finding.
Similarly, all of the evidence that I outlined in my decision which occurred after the alleged sexual harassment is not, in my view, affected one iota by whether or not L. Mardell worked on the day in question.
Counsel for the employer stated:
The presence or absence of L. Mardell is a red herring, it is entirely irrelevant.
I agree. In my view, nothing in this matter hangs on the balance of whether L. Mardell worked that day in question, or not.
I will also comment on one other point raised at paragraph 24 of the written submission of counsel for the grievor. He states:
All of the evidence is consistent that Mr. Gale let Ms. ["X"] into the FSWU only once on that day.
Later on, at paragraph 29, counsel for the grievor writes, in part:
. . . the evidence of Mr. Gale . . . [was] she left again at 11:30 and someone other than Mr.Gale permitted re-entry at 12:00 noon.
Counsel for the employer wrote that this proposition was entirely inaccurate. I completely agree.
There is no dispute that Mr. Gale admitted Ms. "X" into the work unit for the first time sometime around 11:00 a.m. Now, the grievor's counsel is saying that was the only time Mr. Gale let Ms. "X" into the work unit. During extensive cross-examination of Ms. "X", counsel for the grievor never put to her that her version of the events that took place after she re-entered Tier 1 at about 12:00 noon following her lunch break were at variance with what Mr. Gale would be testifying to. Such notice would be required under the principles enunciated in Browne v. Dunn, [1893] 6 R 67 (H.L.). At no time during the original proceedings was there a suggestion that Mr. Gale had let Ms. "X" into the work unit only once. After hearing, reviewing and examining all of the evidence, there was no question in my mind that Mr. Gale allowed Ms. "X" into the Tier 1 work unit twice on the day in question. At paragraph 88 of my original decision (supra) I wrote:
When asked if he recalled letting Ms. "X" back in the unit after lunch and asking her how she liked it, Mr. Gale replied he did not specifically recall that, but it could have happened.
At the adjudication hearing Ms. "X" testified that after lunch she returned to the FSWU and, as I wrote at paragraph 24, ". . . she rang a bell to get in and the grievor answered, opened the door and Ms. "X" testified he said to her: "so, how was it? . . .".
At paragraph 148 of my decision (supra) I wrote:
Ms. "X", thinking the inquiry referred to her lunch, replied "not bad". This was not contested."
Ms. "X" responded to an inquiry from Mr. Gale after she returned from her lunch break. I remain of the view that Mr. Gale let Ms. "X" back into the work unit and spoke to her. It is simply inaccurate for counsel for the grievor to state, at paragraph 24 of his May 14, 2004 submission, that:
All of the evidence is consistent that Mr. Gale let Ms. "X" in to the FSWU only once on that day.
In summary then, the issue of whether L. Mardell was working in the FSWU on the day in question, or not, was not and is not in the least bit critical to my determination in the case.
The fact of the matter is, the letter of August 17, 2001, from the employer's counsel to counsel for the grievor, simply confirmed that which the employer had conceded at the hearing. In my view, ultimately nothing whatsoever turned on whether L. Mardell was working in the FSWU or not. The other evidence cited in my original decision (supra) led me to conclude that, in all probability, Mr. Gale did sexually harass Ms. "X".
Ultimately there are only two people who know, with 100% certainty, whether the events Ms. "X" testified to actually occurred. As a trier of fact, after carefully weighing all of the evidence, including the letter of August 17, 2001, confirming that L. Mardell was not working in the FSWU on May 19, 1999, I remain convinced that Mr. Gale did, indeed, commit an act of sexual harassment as stated by Ms. "X". Accordingly, I see no reason whatsoever to reverse my decision, and Mr. Gale's termination stands.
[33] A review of the decision reveals that the adjudicator referred to and addressed one of the apparent reasons the Federal Court of Appeal deemed it necessary to revisit his original decision, that reason being that the adjudicator raised the issue of why another employee, L. Mardell who was on the work list for the day, did not attend the prison incident. He stated that if it was suggested to the Court of Appeal that there were no time limits placed on the provision of the work location of Ms. Mardell, this was "simply not true". The Court of Appeal stated there was no time limit for the provision of the information, while the adjudicator stated that the information as to whether L. Mardell was working on the day in question was to be provided in a few weeks. The adjudicator stated that it "would be unfortunate indeed, if that was one of the reasons why the Federal Court of Appeal issued the reconsideration order". However, that discussion is not related to the issue at hand for the adjudiciator, that is, dealing with the August 17, 2001 letter concerning the work location of L. Mardell at the time in issue.
[34] The adjudicator also stated, "the issue of whether L. Mardell was working in the FSWU on the day in question, or not, was not and is not in the least bit critical to my determination of the case". I would note, however, it was the adjudicator who requested this information at the end of the hearing as it concerned the issue of credibility. From a review of the adjudicator's second decision, I do not find any real reason why the evidence about where L. Mardell was working had become unimportant to the case. The adjudicator simply stated that the evidence of where L. Mardell was working was irrelevant to his finding.
[35] I have reviewed the adjudicator's second decision in detail and I am of the view that the adjudicator focused more on dealing with the reason for the Court of Appeal sending the matter back and in justifying his first decision than dealing with the evidence supplied in the August 17, 2001 letter.
[36] There is no doubt that it is the adjudicator's role to deal with this evidence. The Federal Court of Appeal had ordered the adjudicator to "take into account the information in the August 17, 2001 letter of counsel for the respondent respecting L. Mardell and provide the parties with an opportunity to make submissions as to its effect on the outcome of the adjudication."
[37] The adjudicator also stated in his second decision that the employer conceded at the end of the hearing that L. Mardell was not working on the FSWU on the day in question. If that was the case, I do not understand why the adjudicator also stated in his second decision that there was agreement that the information would be submitted by counsel within a few weeks on that. As the adjudicator himself pointed out in his second decision, " . . . at the conclusion of the hearing (July 12, 2001) the only issue outstanding was a response to my question of whether or not L. Mardell was working on the day in question."
[38] The decision has very serious repercussions for the applicant. If he is unsuccessful, he will lose his employment. In 2001 SCC 35">Re Therrien the Court stated that the duty to act fairly had two components: the right to be heard and the right to an impartial hearing (the nemo judex in sua causa rule). It is the latter aspect that I will deal with in this case.
[39] I have to ask myself what "would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?" (see Baker at paragraph 46). I am of the view that the informed person viewing the matter as above would conclude it is more likely than not that the adjudicator, whether consciously or unconsciously would not decide fairly. I base this on the tone of the second decision and its failure to deal in a realistic manner with the evidence of L. Mardell's work location on the day in question.
[40] The application for judicial review is therefore allowed.
[41] The applicant shall have his costs of the application.
ORDER
IT IS ORDERED that:
1. The application for judicial review is allowed and the July 26, 2004 decision is quashed and the matter is referred for a new hearing before a different adjudicator.
2. The applicant shall have his costs of the application.
"John A. O'Keefe"
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