Date: 20010509
Court File No.: T-845-99
Neutral Citation: 2001 FCT 449
Ottawa, Ontario, the 9th day of May, 2001
BEFORE THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
CANADIAN PACIFIC RAILWAY
Applicant
- and -
BRIAN DUNN
Respondent
- and -
RON T. CLERK
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of Mr. Brian Dunn, an adjudicator, who was appointed on February 12, 1999, to adjudicate a dispute under the Canada Labour Code, R.S.C. 1970, c. L-1, between Ron T. Clerk ("Clerk") and Canadian Pacific Railway ("CP Rail"). CP Rail is seeking review of a May 11, 1999 decision by the adjudicator, Brian Dunn, refusing to grant CP Rail a postponement of the scheduled hearing. The applicant also seeks an order for the withdrawal of the adjudicator Brian Dunn.
[2] A brief history of the dispute between the applicant, CP Rail, and the respondent Clerk, will be provided in order to situate the matter before this Court. On June 12, 1996, the respondent Clerk filed a complaint against the applicant alleging unjust dismissal under section 240 of the Canada Labour Code. The complaint proceeded to adjudication before adjudicator David Kwavnick. Before the end of the adjudication, adjudicator Kwavnick disqualified himself as the adjudicator of the dispute since he had been informed of the terms of a settlement proposal between the applicant and the respondent Clerk.
[3] A new adjudicator was appointed on February 12, 1999, Mr. Brian Dunn (the "Adjudicator"). One of the preliminary issues before the Adjudicator was whether there had been a binding settlement between the applicant and the respondent Clerk despite the disqualification of adjudicator Kwavnick. The Adjudicator rendered a decision on March 10, 1999, holding that there had been no settlement between the parties and that a hearing date would be set which is convenient to all parties.
[4] The events which occurred while attempting to set hearing dates convenient to the parties give rise to the issues currently before this Court.
[5] On April 6, 1999, Ms. Louise Béchamp, counsel for the applicant, states in her affidavit that the Adjudicator "left an undetailed message" on her voice mail[1]. She states that she did not have time to return the Adjudicator's call, given that she was outside her office for much of April. Counsel for the applicant states in her affidavit that the Adjudicator called her secretary on April 16, 1999, to inform her that he was convening a hearing for April 26 and 27, 1999. The Adjudicator also informed her that he had tried to fax a letter to counsel for the applicant's law firm, but was having difficulties. Counsel for the applicant's secretary informed the Adjudicator that counsel for the applicant was not available on April 26 and 27, 1999.
[6] On April 16, 1999, the Adjudicator wrote to the applicant that the hearing dates for this matter would be scheduled on April 26 and 27, 1999. Counsel for the applicant states that this letter was received by her on April 20, 1999.
[7] On April 21, 1999, counsel for the applicant faxed the Adjudicator a letter stating that she would not be available on April 26 and 27, 1999 and that the availability of witnesses could not be ascertained before the hearing. Counsel for the applicant requested that she be consulted before hearing dates are scheduled.
[8] On April 23, 1999, the Adjudicator wrote a letter to counsel for the applicant stating that the hearing would proceed on April 26 and 27, and that a motion for adjournment could be argued at the commencement of the hearing.[2] The last two paragraphs of the Adjudicator's letter read as follows:
This matter has dragged on for such a length of time that it is becoming an embarrassment.
It does not fall to one of the parties to presume an adjournment of a scheduled hearing. That is my jurisdiction. I will be in attendance at 10:00 A.M. on April 26. I will entertain any motion for an adjournment at that time as I would do at any time during any hearing. Such a motion will be granted if reasonable grounds exist other than neglect. I expect that both parties or their representative will be in attendance on April 26.
[9] On April 26, 1999, a partner in counsel for the applicant's law firm, Mr. Rolland Forget, attended the hearing before the Adjudicator in order to obtain an adjournment. Mr. Forget advised the Adjudicator that counsel for the applicant would be available from May 17 to 21, and from June 14 to 18, 1999, subject to the availability of witnesses. The Adjudicator granted the adjournment provided that counsel for the applicant confirm the availability of witnesses by April 28, 1999.
[10] Mr. Forget states in his affidavit that at the April 26, 1999 hearing, the Adjudicator questioned the truthfulness of the availability of counsel for the applicant's witnesses:[3]
5. The Respondent, Mr. Dunn verified the veracity of this information with the plaintiff, Mr. Clerk, in such a manner which I felt, based on my experience, was inappropriate in that it expressed doubts of disbelief as to the accuracy of the statements I was making; I therefore felt compelled to advise the arbitrator that there was no valid reason to question in such a manner the statements I was making.
6. Mr. Dunn also made comments during the session of April 26 whereby doubts were cast on the length of the hearing estimated by Applicant's counsel, not believing that the hearing could last up to six days while, however, knowing that five days of hearings had been held in front of the Previous adjudicator and an additional four days had been scheduled to complete the hearing.
[11] The respondent Clerk disagrees with Mr. Forget's characterization of the April 26 hearing. According to the respondent Clerk, it was Mr. Forget, not the Adjudicator, that suggested that the respondent Clerk verify the veracity of the information provided by Mr. Forget concerning the availability of witnesses. The respondent Clerk states in his affidavit that the Adjudicator did not make negative comments to Mr. Forget, nor did the Adjudicator cast doubt on his submissions.[4]
[12] On April 28, 1999, counsel for the applicant informed the Adjudicator by voice mail and fax that witnesses would be available the week of June 14th, 1999, but would not be available the week of May 17th, 1999.
[13] On April 30, 1999, the Adjudicator left a voice mail with counsel for the applicant that the hearing would be scheduled for May 19 to 21, and June 15 to 17. According to the affidavit of counsel for the applicant, the Adjudicator stated that these dates would be set "having considered the matter and the position of Mr. Clerk" and stated that no further requests for adjournment would be considered.
[14] On May 5, 1999, counsel for the applicant wrote to the Adjudicator requesting that he withdraw from the file.[5] Counsel for the applicant pointed to the written and oral comments of the Adjudicator, and the Adjudicator's conduct in setting a hearing date, as a violation of natural justice. Counsel for the applicant also alleged that there is a reasonable apprehension of bias on the part of the Adjudicator.
[15] On May 11, 1999, the Adjudicator wrote to counsel for the applicant that he would consider her request to withdraw from the file at the commencement of the hearing as scheduled, on May 19th 1999. The Adjudicator did not, at this time, reschedule the hearing dates.[6]
[16] On May 18, 1999, a motion for stay of proceedings was granted by this Court.
[17] The applicant raises two issues concerning the May 11, 1999 decision of the Adjudicator. First, did the Adjudicator breach the principle of natural justice by scheduling hearing dates which conflict with the availability of the applicant's witnesses? Second, is there a reasonable apprehension of bias on the part of the Adjudicator?
[18] The applicant argues that the Adjudicator breached the right to know the case being made against the applicant, and the right to be given an opportunity to answer it (referred to as the audi alteram partem rule). Specifically, the applicant argues that the Adjudicator breached the audi alteram partem rule by (1) setting hearing dates in conflict with the availability of the applicant's witnesses, and (2) refusing to grant the applicant an adjournment before the April 26, 1999 hearing.
[19] The Supreme Court of Canada held in Supermarchés Jean Labrecque Inc. v. Flamand[7] that failing to give notice to the parties of the date and place of a hearing is a breach of the audi alteram partem rule. In that case, a Labour Court judge decided to hold a hearing in Montréal instead of in Val d'Or, without informing the parties. The Court states the following at 234:
Even where there is no specific reference to the audi alteram partem rule in the legislation, as in s.128 of the Labour Code, and bearing in mind that the setting of the date and place of a trial is not a purely administrative act, as noted above, failing to give the parties or their counsel of record prior notice of the date and place of hearing in Montréal on June 10, 1981 is not consistent with that fundamental rule, implicit in any proceedings of a judicial or quasi-judicial nature. The decision made by the Chief Judge, in the absence of the parties and without prior notice, to hold the hearing in Montréal on June 10, 1981, rather than in Amos or Val d'Or, does not either respect that rule.
[20] In the case at bar, the Adjudicator did give the applicant notice of the hearing, however, the applicant argues the notice did not leave a reasonable amount of time for preparation. I accept that the Adjudicator left an undetailed message on the voice mail of counsel for the applicant on April 6, 1999, which does not amount to notice of the hearing dates. The earliest possible notice given by the Adjudicator to the applicant would have been on April 16, 1999, when the Adjudicator told counsel for the applicant's secretary of the hearing dates. This would have left nine days for the applicant to prepare for the hearing. The latest possible notice given to the applicant would have been on April 20, 1999, when counsel for the applicant received the Adjudicator's letter confirming the hearing dates. This would have left five days for the applicant to prepare for the hearing.
[21] Similarly, the Adjudicator would have been aware of the unavailability of counsel for the applicant on the scheduled hearings dates on April 16, 1999 when counsel for the applicant's secretary informed the Adjudicator of counsel's prior commitment. On April 21, 1999, the Adjudicator was informed by letter that the applicant's witnesses could not attend the hearing on such short notice.
[22] Although the Adjudicator did proceed to grant an adjournment on April 26, 1999, counsel for the applicant had to inform the Adjudicator of witness availability by April 28, 1999. Despite the fact that counsel for the applicant informed the Adjudicator on April 28, 1999 that witnesses would be available in June, the Adjudicator scheduled the hearings in conflict with the availability of the applicant's witnesses.
[23] In my opinion, the Adjudicator breached the duty of procedural fairness by scheduling hearings which conflict with the availability of the applicant's witnesses. The Supreme Court in Supermarchés Jean Labrecque Inc. v. Flamand[8] quoted with approval the following comments in de Smith's Judicial Review of Administration Action:[9]
Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position:
(a) to make representations on their own behalf; or
(b) to appear at a hearing or inquiry (if one is to be held); and
(c) effectively to prepare their own case and to answer the case (if any) they have to meet.
...
If, as is usual, the reason for imposing an obligation to give prior notice is to afford those affected an opportunity to make representations, the notice must be served in sufficient time to enable those representations to be made effectively. If an oral hearing is to be held, the time and place must be properly notified.
The duty of procedural fairness requires that a party be able to effectively prepare their case and answer the case to meet. It is important to note that, in the underlying arbitration under the Canada Labour Code, it will be the employer, in this instance, who bears the onus of proof at the ultimate hearing. The request made by counsel for the applicant to adjourn proceedings until June in order for witnesses who need to travel to be available, was a reasonable request. Given the burden of proof on the employer in this arbitration, it must be given a reasonable amount of time to allow for witnesses to travel, in order for the employer to effectively present its case. By scheduling a hearing in May instead of June, the Adjudicator breached the duty of procedural fairness by limiting the ability of the applicant to present its case.
[24] A finding that the Adjudicator breached the rules of natural justice is regarded as an excess of jurisdiction.[10] As such, the May 11, 1999 decision of the Adjudicator setting hearing dates in conflict with the availability of the applicant's witnesses is quashed. The availability of witnesses and counsel should be a key consideration in the setting of new hearing dates for this matter, and a reasonable time frame should be provided for witnesses and counsel to make themselves available.
[25] The applicant seeks more than the quashing of the Adjudicator's May 11, 1999 decision. The applicant also seeks an order for the withdrawal of the Adjudicator from the file since the applicant alleges there is a reasonable apprehension of bias on the part of the Adjudicator.
[26] The test to determine whether there is a reasonable apprehension of bias was set out by the Supreme Court in Committee for Justice and Liberty v. National Energy Board[11] as follows:
... 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. 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."
This test was further explained by the Ontario Court of Appeal in Sorger v. Bank of Nova Scotia[12] in which the Court states:
...one must consider the cumulative effect of all the relevant factors. Taken together, would they lead a reasonable and informed person observer to have a reasonable apprehension of bias on the part of the trial judge and to conclude that there had not been a fair and impartial trial?
[27] The applicant argues that there is a reasonable apprehension of bias given the cumulative effect of the following evidence. First, the Adjudicator's letter dated April 23, 1999 in which he states that "this matter has dragged on for such a length of time that it is becoming an embarrassment", and that an adjournment will be granted if "reasonable grounds exist other than neglect". According to the applicant, the tone of this letter suggests that the Adjudicator is laying blame on the applicant for the delays, and that the applicant has been negligent. Second, the affidavit of Mr. Forget who states that at the hearing of April 26, 1999, in which an adjournment was granted by the Adjudicator, Mr. Forget felt that the Adjudicator questioned the truthfulness of his submissions. Third, the Adjudicator's general disregard for hearing dates convenient to all parties. Fourth, the voice mail message from the Adjudicator on April 30, 1999 stating that "having considered the matter and the position of Mr. Clerk" the hearing dates would be set in May and June. The applicant argues that it was not made aware of any "position of Mr. Clerk".
[28] Before examining this evidence to determine whether there is a reasonable apprehension of bias, it is important to note that conjecture alone will not be enough to find a reasonable apprehension of bias. As Lord Denning stated in Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon:[13]
. . . in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand [cited cases omitted]. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough [cited cases omitted]. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
[29] I find that, the evidence submitted by the applicant does not indicate, based on the test of an informed person viewing the matter realistically and practically, that there is a reasonable apprehension of bias on the part of the Adjudicator. The Adjudicator's comments in his letter dated April 23, 1999 that the length of time the case has taken "is becoming an embarrassment" is not an assignment of blame to counsel for the applicant, it is a general statement. The Adjudicator's comments that he will grant an adjournment "if reasonable grounds exist other than neglect" is not an accusation of neglect as argued by the applicant. Once again this is a general statement advising the parties that an adjournment will be granted if reasonable grounds exist. The Adjudicator did in fact grant an adjournment.
[30] Although Mr. Forget states in his affidavit that he felt the Adjudicator expressed doubts concerning the accuracy of his submissions at the April 26, 1999 hearing, the respondent Clerk states in his affidavit that no doubts were expressed by the Adjudicator. The inquisitory tone of the Adjudicator may or may not have been misunderstood by either Mr. Forget or the respondent Clerk. I am satisfied, however, that this evidence would not lead a reasonable person to conclude that the Adjudicator was accusing Mr. Forget of misleading him. At best, this evidence amounts to surmise. Given that surmise will not be enough to establish a reasonable apprehension of bias, this evidence would not lead a reasonable person to conclude there is a reasonable apprehension of bias on the part of the Adjudicator. The same reasoning applies to the voice mail message left by the Adjudicator with counsel for the applicant stating that the hearing dates would be set "having considered the matter and the position of Mr. Clerk". Although counsel for the applicant argues that the applicant was never made aware of "the position of Mr. Clerk", this statement could simply refer to the position of Mr. Clerk as argued at the April 26, 1999 hearing. Once again, any conclusions about this statement is conjecture, and does not point to a reasonable apprehension of bias.
[31] Having considered the evidence, and the cumulative effect of the evidence, it is my opinion that there is no reasonable apprehension of bias on the part of the Adjudicator.
[32] The May 11, 1999 decision by the Adjudicator setting the dates for this hearing is hereby quashed. The matter is sent back to the Adjudicator to set new dates for the hearing of this matter. In doing so, the Adjudicator is directed to consider the availability of witnesses and counsel, and to afford a reasonable amount of time for witnesses and counsel to attend the hearing.
ORDER
THIS COURT ORDERS that:
1. The May 11, 1999 decision by the Adjudicator setting the hearing dates is hereby quashed.
2. The matter is sent back to the Adjudicator to set new dates for the hearing of this matter and the Adjudicator is directed to consider the availability of witnesses and counsel, and afford a reasonable amount of time for witnesses and counsel to attend the hearing.
3. The request for an order to withdraw the adjudicator Mr. Dunn from the file is dismissed.
4. No costs are awarded in this proceeding.
"Edmond P. Blanchard"
Judge
[1] Applicant's Application Record, Book I, at p. 55, tab 6.
[2] Ibid. at p.77, tab 11.
[3] Ibid. at p. 19, tab 4.
[4] Record of the Respondent, at p. 1.
[5] Supra, note 1, at p. 79, tab 13.
[6] Ibid. at p. 83, tab 14.
[9] de Smith, Stanley Alexander. de Smith's Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons, 1980 at 196 and 197.
[12] (1998), 160 D.L.R. (4th) 66 at p. 69.
[13] [1968] 3 All E.R. 304 (C.A.), at p. 310.
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