Date: 19990217
Docket: T-101-98
BETWEEN:
PURANDHAR SETLUR
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application to the Court to quash and set aside the interlocutory ruling of Mrs. Carolyn Brown, Chairperson, Appeal Board, Public Service Commission of Canada, dated December 17, 1997 wherein Mrs. Brown refused to disqualify herself from hearing the appeals.
[2] At the commencement of the hearing before the Commission, the applicant had a legal counsel but the respondent, Attorney General of Canada, choose not to.
APPLICANT"S ARGUMENTS
[3] The applicant suggests that on several occasions during the hearing, the Chairperson deviated from her rule as a neutral adjudicator.
[4] The applicant suggests that on several occasions, the Chairperson displayed bias against the applicant by offering the respondent's representative unsolicited assistance in questioning the applicant"s witness, asking questions that should have been asked by the respondent, repeatedly admonishing the applicant"s counsel and badgering the applicant when he was testifying under oath.
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11. On two occasions during the hearing, once in or about August 1997, and again on or about September 3, 1997, the Applicant requested tapes of the hearing, to clarify some parts of the testimony, and was informed that he would get them after the hearing was completed and a decision was rendered. |
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12. On or about October 30, 1997, the Respondent, which had been represented by Ruth Fox till that time, retained Mr. Robert H. Jaworski, a Department of Justice lawyer, to take over carriage of this matter. |
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13. On or about November 3, 1997, the Chairperson acceded to the Respondent's newly appointed counsel's requests for an adjournment and for tapes of the hearing ("tapes") till that date.1 |
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15. The Chairperson did not question the Respondent's decision to retain counsel at such a late stage, did not question the delay and disruption that it was causing to the Applicant"s case to have Respondent's counsel to bring himself up to date with the proceeding and did not seek any submissions from the Applicant"s counsel before granting the Respondent counsel's request for tapes.2
[5] The applicant"s counsel suggests that when Mrs. Ruth Fox communicated with the Chairperson returning her call, they were:
| 19. ... discussing several matters pertaining to the evidence presented at the hearing, the tone of the hearing and the alleged attack on the Selection Board Chairperson, Mr. John Tkaczyk's (John Tkaczyk) integrity..3 |
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[6] The applicant"s counsel suggests that:
| 20. The Chairperson became even more partial towards the Respondent and confrontational towards the Applicant after the 6th of October 1997. |
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| 21. On or about November 3, 1997, Applicant"s counsel moved that the Chairperson disqualify herself from the board on the basis that she was biased against the Applicant. He cited several reasons for this request. |
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| 22. The Chairperson adjourned the motion to disqualify her on the basis of bias to the 24th of November 1997 to give Respondent's counsel an opportunity to prepare for it. |
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| 23. On or about November 19, 1997, an employee with the Respondent's Human Resources Department, Louis Vigneault, contacted the Chairperson on John Tkaczyk's behalf ....4 |
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[7] The applicant suggests that the Chairperson applied double standard on request by the parties. When the Applicant requested tapes of the hearings it was denied but when the new counsel for the Respondent ask for those tapes his request was granted.
[8] The applicant also mentioned that the Chairperson did not question the respondent"s decision to retain counsel at such a late stage, and did not question the delay and disruption that it was causing the applicant.
[9] The applicant also suggests that when the Chairperson communicated with Mrs. Ruth Fox, representing the respondent, without the applicant"s knowledge and discussing several matters pertaining to the evidence presented at the hearings and communicating also with an employee with the respondent"s Human Resource Department, Louis Vigneault, those two telephone conversations were totally inappropriate and has contributed to a reasonable apprehension of bias against the applicant on the part of the Appeal Board.
[10] The applicant also suggests that when the Chairperson communicated with Mrs. Ruth Fox, representing the respondent, without the applicant and left a message on her voice mail requesting advice to reschedule a witness, at the hearing of the motion, on November 24, 1997, the respondent's counsel acknowledged that the contact had been made by Mr. Vigneault and admitted that it was inappropriate. He also agreed with the applicant"s assertion that there had been a reasonable apprehension of bias against the applicant on the part of the Appeal Board.
RESPONDENT"S ARGUMENTS
[11] The respondent suggests that the evidence does not support the applicant"s allegation that the Appeal Board Chairperson is biased.
[12] The respondent suggests that the Chairperson has conducted the hearing in a fair and unbiased manner. The respondent suggests that the Chairperson has taken such steps that were necessary to facilitate an orderly proceeding, as she was both permitted and expected to do at law.
[13] Concerning phone calls by Mrs. Fox and Mr. Vigneault, the facts surrounding those phone calls with the Chairperson have been credibly explained and, consequently, the Court should not draw any inference that the Chairperson is biased against the applicant.
[14] The respondent also suggests that the Chairperson has not yet concluded the applicant"s appeals and ruled on their merit and that there is nothing exceptional about the circumstances of this appeal, and consequently, the application is being premature.
ANALYSIS
[15] On August 7, 1997, Mrs. Ruth Fox representing the respondent complained to the Board when she realized that the applicant had counsel, but as far as I read the transcript at page 59, Mrs. Fox expresses more her surprise that she was not aware that the applicant was going to have representation, specifically a lawyer. She also mentioned:
...and I feel that the department is, to some extent, at a disadvantage because of that.5
Even though this allegation is true, it does not mean anything about whether or not the Chairperson has a bias.
[16] Later, on October 30, 1997, the respondent which had been represented by Mrs. Ruth Fox, till that time, retained Mr. Robert H. Jaworski, a Department of Justice lawyer, to take over carriage of this matter.
[17] The applicant"s suggestion that the Chairperson did not question the respondent"s decision to retain counsel at such a late stage and did not question the delay and disruption that it was causing to the applicant"s case to have respondent"s counsel bring himself up-to-date for the proceeding showing an unequal treatment towards applicant and respondent is totally inaccurate. Any party has the right to retain counsel at any stage, this is a fundamental right.
[18] What the Chairperson has to take into consideration is only to make sure that any such decision would not create prejudice to any other party. In that case, there is no prejudice created to any party.
[19] The applicant"s suggestion that his request for a copy of the tapes on two occasions was denied and that the new counsel"s request for the tapes was granted, constitute a double standard approach, again, is not accurate.
[20] When the Chairperson was asked for the tapes, the applicant in the absence of his counsel on the 4th of September 1997, said:
Are we allowed to have a copy of the tapes?6
the Chairperson answered:
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Yes, well, I believe a call came from your representative regarding the tapes. The tapes would be available at the end of the -- once the decision is rendered. |
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The appellant said: oh-o.k. |
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The Chairperson added: o.k.7
[21] As the Chairperson explained in her preliminary decision, I understand that copies of the tape recordings of appeal hearings are normally not provided during the hearing period unless there are specific reasonable reasons to do so. When the applicant asked for the tapes, he did not mentioned any reasons for that. And the answer was "yes you will get it but at the end of the hearings".
[22] The Chairperson has considered that a change of counsel for the department is a reasonable reason to provide tape recordings before the end of the hearings; so when counsel for the department requested copies of the tape recordings as he had not been present during the previous five days of the hearing, the Chairperson considered that it was a reasonable explanation for his request and the Chairperson decided to provide copies of the recordings to both parties. That does not represent any double standard approach and does not create any prejudice to the applicant.
[23] I carefully read the transcript and rejected the allegation of the applicant"s counsel that the Chairperson deviated from her rule as a neutral adjudicator. The allegation that the Chairperson has a pre-judgement of the applicant"s case is unsubstantiated and I reject the allegation.
[24] I also reject the allegation of the Chairperson"s favouritism toward respondent. The Chairperson has asked questions and made evidentiary rulings to properly apprise herself of the merits of the case. She also asked many questions to clarify and particularly to make sure that the applicant fully understood the questions that were asked to him. I am convinced that the Chairperson has conducted the hearing in a fair and unbiased manner.
[25] I also reviewed what happened regarding the telephone conversation between Mrs. Ruth Fox and the Chairperson.
[26] First of all, the Chairperson called the two parties, Mrs. Fox and Mr. Ramlall, with respect to the rescheduling of the hearing that week of October, 1997. Mr. Ramlall told the Chairperson, on the phone, that he would be presenting witnesses and that he would be speaking to Mrs. Fox with respect to these witnesses. Mrs. Fox returned the call of the Chairperson and, after addressing the question of rescheduling, mentioned that she had some concerns with respect to the information that was coming out of the hearing and the tone of the hearing.
[27] In her interlocutory ruling, the Chairperson mentioned clearly that she indicated to Mrs. Fox that it was not appropriate for her to raise these issues with the Chairperson on the phone outside of the hearing and subsequently, as we can read in the transcript, the Chairperson brought everything that was said on her two conversations with the applicant"s counsel, Mr. Ramlall, and Mrs. Fox, at the next hearing.
[28] When the Chairperson referred to that conversation with Mrs. Fox at the hearing on October 6, 1997, the applicant"s counsel answered:
Yes. Yes, I thought my friend would have alerted me as to her concerns. I will, of course, approach my opposite side first before I get to the -- in the case of any emergency I will get to the Registrar.8
[29] On October 30, 1997, the new respondent"s counsel, Mr. Jaworski sent a letter to the Chairperson with copy to the applicant asking for copies of the tapes and an adjournment of ten days to take time to go through the case before the hearings.
[30] The Chairperson had received two letters by the applicant"s counsel which were saying that the applicant"s counsel was surprised that the Chairperson had decided to give copies of tapes to the parties after her precedent decision not to do so.
[31] The applicant"s counsel also mentioned that he was going to oppose the adjournment request by the respondent"s counsel at the next hearing of November 3, 1997.
[32] When the Chairperson realized that the applicant"s counsel was opposing the adjournment request, it was totally appropriate for her to tell the parties that she wanted to hear the arguments of the two parties at the next hearing.
[33] On November 3, 1997, the Chairperson clearly mentioned that she wanted to hear the parties on the request of the respondent"s counsel for an adjournment. The respondent"s counsel expressed his arguments during a certain period of time and after that, the applicant"s counsel mentioned, not only that he was opposing the respondent"s counsel request for an adjournment, but that he was also opposing the decision to provide tapes to the parties; and finally, that he was instructed by his client, the applicant Mr. Setlur, to ask that the Chairperson should disqualify herself from conducting the hearing.
[34] It is a little bit surprising that the applicant"s counsel did not mention that he was instructed by his client to ask that the Chairperson should disqualify herself from conducting the hearing at the very beginning of the hearing, but waited after the respondent"s counsel had presented his request to the Chairperson.
[35] At this stage, a decision was taken by the Chairperson to adjourn the hearing till the 24th of November, 1997 to allow the parties to be prepared to present arguments on the decision whether or not the Chairperson should disqualify herself from conducting the hearing.
[36] On the 24th of November 1997, during the hearing, the applicant learned that Mr. Louis Vigneault had tried to reach the Chairperson on the 19th of November 1997, as Mr. Vigneault mentioned in his affidavit:
I intended to enquire as to whether it was possible to address Mr. Setlur's allegations in a different sequence, so that John Tkaczyk could attend at the tax conference in Vancouver. I left a message on Ms. Brown's voice-mail concerning the conflict in the schedule of Mr. Tkaczyk. I did not speak with her directly.9
[37] Also on the 24th of November, 1997, the Chairperson mentioned having received the voice-mail message, from Mr. Vigneault:
... I left a voice-mail message for Mr. Vigneault advising him that it was inappropriate for him to initiate contact with me while I was hearing the appeal and advised him that queries of this nature should be directed to counsel for the Department.10
[38] The Chairperson clearly mentioned in her interlocutory ruling that the telephone calls by both Mrs. Fox and Mr. Vigneault should not have been made. She also mentioned:
... both calls dealt only with administrative issues associated with this appeal and did not include any discussions on the merits of the case.11
[39] I reject the allegation that the Chairperson and the respondent have communicated behind the applicant"s back creating a prejudice for the applicant. All the facts surrounding the two phone calls were fully, clearly and credibly explained by the Chairperson on her preliminary decision.
[40] Finally, the last but not the least argument, is that respondent's counsel has agreed with the applicant"s counsel that there had been a reasonable apprehension of bias against the applicant on the part of the Appeal Board following all those particular circumstances.
[41] I read the transcript and I consider that the respondent"s counsel at the time was frustrated by the fact that the conducts of two employees of his own client were inaccurate and particularly that Mr. Vigneault tried to reach the Chairperson behind his back. The Court is not bound by this affirmation made by the respondent"s counsel at the time.
ISSUES
[42] The respondent"s counsel raised two major issues in this case:
a. Whether this application is premature?
b. Whether there is a reasonable apprehension of bias?
[43] The applicant"s counsel suggested referring to Canada (Minister of Citizenship and Immigration) v. Tobiass12 that many principles of professional conduct must be observed in order to maintain the appearance of judicial independence:
| i. Counsel for one party should not discuss a particular case with a judge except with the knowledge of the other party even where the concern relates to a procedural matter and is legitimate. |
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| ii. Counsel may not exceed to demands of one party without giving the other party a chance to present its view. |
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[44] With all due respect, and particularly relating to the phone calls between the Chairperson, Mrs. Fox and Mr. Vigneault, there was no breach of those principles because those irregularities were done by an individual representing the respondent and another employee of the same respondent and were both reprimanded directly on the phone, and when the matter was brought to the Tribunal, after that, all the facts that were mentioned during those conversations were brought, at the first opportunity, to the attention of the other party at the next hearing.
[45] The respondent referred to the decision in Committee for Justice and Liberty et al. v. National Energy Board.13
| The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, 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 [at p. 667] that 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly? |
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[46] Both parties referred to the Tobiass14 decision:
| [para. 70] The test for determining whether the appearance of judicial independence has been maintained is an objective one. The question is whether a well-informed and reasonable observer would perceive that judicial independence has been compromised. As Lamer C.J. wrote in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139, "[t]he overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality". |
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| [para 71] The essence of judicial independence is freedom from outside interference. Dickson C.J. in Beauregard v. Canada, [1986] 2 S.C.R. 56, described the concept in these words, at p. 69: |
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| Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to her and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. |
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[47] The respondent"s counsel is accurate when she mentioned that this test applies to judicial independence. In this case, it is not a decision of the Court but a decision of an administrative tribunal that is under review, and an administrative tribunal has the power to control its own procedure in order to ensure that justice is done in procedural fairness.
[48] I reviewed the transcript of the hearings and I also reviewed carefully the decision made by the Chairperson and I consider that she has conducted the hearing in a fair and unbiased manner, and probably, if the parties had appeared before the Tribunal more prepared, they could have avoided this particular situation.
[49] I consider that the Chairperson was right when she wrote in her preliminary decision:
| It is unfortunate that the conduct of the department has resulted in the appellant having concerns with respect to the perception or appearance of bias of the Appeal Board Chairperson.15 |
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[50] The applicant failed to convince the Court that there is a reasonable apprehension of bias in this case.
[51] For these reasons, this application is dismissed with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 17, 1999
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1 Applicant Record, Tab 5, Memorandum of Fact and Law, paragraphs 11,12 and 13.
2 Applicant Record, Tab 5, Memorandum of Fact and Law, paragraph 15.
3 Applicant Record, Tab 5, Memorandum of Fact and Law, paragraph 19.
4 Applicant Record, Tab 5, Memorandum of Fact and Law, paragraphs 20-23.
5 Volume 1, page 59, 7th day of August 1997 transcript.
6 Volume 3, Page 6, Hearing of the 4th of December 1997 transcript.
7 Volume 3, Page 7, Hearing of the 4th of December 1997 transcript.
8 Volume 4, page 4, 6th of October 1997 transcript.
9 Respondent's Applicant Record, Tab 2, Affidavit of Louis Vigneault, sworn February 23, 1998, page 9.
10 Interlocutory Ruling by the Chairperson on the 17th of December 1997, page2.
11 Interlocutory Ruling by the Chairperson on the 17th of December 1997, page 6.
12 [1997] 3 S.C.R. 391 at paragraphs 68 and 69.
13 (1976), 68 D.L.R. (3d) 716 (S.C.C.) at 737.
14 Note 13 supra paragraphs 70 and 71.
15 Interlocutory Ruling by the Chairperson, the 17th of December 1997, page 6.
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