Date: 20120808
Docket: T-831-12
Citation: 2012 FC 975
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, August 8, 2012
PRESENT: The Honourable Madam
Justice Tremblay-Lamer
BETWEEN:
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CANADIAN
UNION OF POSTAL WORKERS
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Appellant
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and
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CANADA
POST CORPORATION
and
THE ATTORNEY GENERAL
OF CANADA
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The
Canadian Union of Postal Workers (Union) has filed an application for judicial
review of the decisions of the arbitrator for final offer
selection,
Guy Dufort, rendered April 17 and 30, 2012, not to recuse himself on the
grounds of reasonable apprehension of bias.
I. STATEMENT
OF FACTS
[2]
On June 26, 2011, Parliament adopted the
Restoring Mail Delivery for Canadians Act, S.C. 2011, c 17 (Special Act)
because of the labour dispute between Canada Post Corporation (Canada Post) and
the Union. In addition to ordering the resumption of postal services, this law
extends the collective agreement until a new collective agreement comes into
effect.
[3]
It
also calls for the appointment of an arbitrator who will choose between the
final offers put forth by Canada Post and the Union; the selected final offer
will be the collective agreement until December 31, 2015. The arbitrator's
decision will be protected by a full privative clause.
[4]
On
July 22, 2011, the Honourable Lisa Raitt, Minister of Labour (the Minister)
appointed the Honourable Coulter A. Osborne as arbitrator. The Union asked the
Federal Court to cancel this appointment, as Arbitrator Osborne was not
bilingual and had no experience in the field of labour relations. On October
20, 2011, the Union was granted a stay until the Federal Court was able to rule
on the application for judicial review. On November 1, 2011, Arbitrator Osborne
resigned.
[5]
On
January 24, 2012, the Federal Court granted the application for judicial review
and cancelled Mr. Osborne's appointment as arbitrator. The Court ordered the
Minister to "ensure that the person selected have a certain degree of
recognized labour relations experience and be bilingual."
[6]
In
November 2011, a representative from Human Resources and Skills Development
Canada (HRSDC) asked both parties to submit a list of candidates in order to
appoint a new arbitrator. The Union consulted with its legal advisors,
including Mr. Nadeau, who recommended several people, including Guy Dufort.
This list was approved by the Union's National Executive Board and was sent to
HRSDC on November 18, 2011. Nevertheless, it seems Mr. Nadeau did not inform
the Union that Mr. Dufort had represented Canada Post for several years and
that he had been an influential member of the Conservative Party of Canada
(Conservative Party). There is no evidence before the Court that Mr. Nadeau was
aware of this information.
[7]
On
March 13, 2012, the Minister appointed Mr. Dufort as the new arbitrator. The
next day, Arbitrator Dufort contacted both parties in order to set a date for a
pre-hearing conference. On that same day, Arbitrator Dufort also sent his
curriculum vitae to both parties and pointed out that he had been counsel for
Canada Post in the pay equity dispute, and that he had also been active in the
Conservative Party. Arbitrator Dufort asked the parties to contact him if this
information was problematic.
[8]
In
1992, an important pay equity dispute (pay equity dispute) between the Public
Service Alliance of Canada (PSAC) and Canada Post was brought before the Canadian
Human Rights Tribunal (Tribunal). The matter was brought before the Federal
Court and the Federal Court of Appeal, and was concluded in November 2011 when
the Supreme Court of Canada allowed PSAC's appeal.
[9]
Arbitrator
Dufort was a partner with the law firm Heenan Blaikie until 2009. This firm had
represented Canada Post in the pay equity dispute, and Arbitrator Dufort was a
member of the team of lawyers that represented Canada Post before the Tribunal
from 1998 to 2003
[10]
As
for his political activities, Arbitrator Dufort was president of the Quebec
wing of the Progressive Conservative Party from 1994 to 1999, as well as during
the extraordinary meeting of the Progressive Conservative Party that led to the
formation of the Conservative Party of Canada in 2003. He was also a three-time
candidate for the Conservative Party and a member of the National Policy
Committee from 2006 to 2010. The arbitrator said that he ceased all political
activities in January 2010.
[11]
On
March 15, 2012, Union counsel sent an email requesting that Arbitrator Dufort
recuse himself. On March 27, 2012, Arbitrator Dufort held a hearing to discuss
the Union's request for his recusal. On April 17, 2012, Arbitrator Dufort
rendered his decision and refused to recuse himself.
[12]
A
pre-hearing conference was held on April 30, 2012, at which the appellant's counsel
again requested that the arbitrator recuse himself in light of new information.
The first piece of information was a Facebook page in the arbitrator's name, in
which the "activities and interests" category included links to the
Westmount Ville-Marie Conservative Association and the page for Michelle
Rempel, Conservative Member of Parliament for Calgary Centre-North. The page
also contained a list of "friends", including Minister Raitt, who was
responsible for appointing the arbitrator, as well as Minister Steven Fletcher,
the minister responsible for Canada Post. In May 2012, Arbitrator Dufort
removed these links from his Facebook page.
[13]
During
this conference, the Union also presented Canada Post's financial report for
the third quarter of 2011, which indicates that the decline seen in the third quarter
of 2011 is mainly attributable to the pay equity decision.
[14]
On
May 11, 2012, Justice Lemieux of the Federal Court ordered the arbitration to
be suspended until a ruling was made on this application for judicial review.
II. DECISIONS
OF ARBITRATOR DUFORT
[15]
In his
written decision, the arbitrator set out his interpretation of the principles
applicable with respect to recusal, relying on Wewaykum Indian Band v Canada, 2003 SCC 45,
[2003] 2 S.C.R. 259 (Wewaykum). Inter alia, he indicated that the
burden of proving a reasonable apprehension of bias fell on the appellant.
[16]
Arbitrator Dufort examined the two grounds
invoked in support of the request for recusal.
First, the arbitrator examined the issue of his role in the pay equity case. He
maintained that a period of nine years had elapsed since this mandate ended,
which is [Translation] "a significant period of time." As the Supreme Court of Canada
stated in Wewaykum, the lapse of time is a material factor to consider
in this type of application; the more time that has elapsed, the more difficult
it is to argue a reasonable apprehension of bias. Given the
substantial period of time, he did not believe it would raise an apprehension
of bias in a reasonable person.
[17]
The arbitrator also maintained that this
dispute differs in nature from the pay equity case and
does not involve either the same facts or parties. Moreover, the issue of
pay equity is not the subject of bargaining in this dispute. He therefore concluded that there was no reason for recusal on these grounds.
[18]
The arbitrator also rejected the second
reason that there is a reasonable apprehension of bias due to his political
involvement with the Conservative Party. The vague suspicions regarding his participation in developing policy on the right to strike
were solely speculation. Moreover, his involvement should
not be considered, as he had ceased all political activity as of January 2010
and had made no public statement regarding the Special Act. Lastly, he believes
that there is insufficient serious evidence of his political involvement and
its impacts on this arbitration to raise an apprehension of bias.
III.
QUESTIONS
[19]
This
application raises two issues in dispute:
(1) What standard of
judicial review is applicable?
(2) Did the arbitrator err
in dismissing the appellant's requests for recusal?
IV. STANDARD
OF REVIEW
[20]
In
accordance with established case law, the Court agrees that the reasonable
apprehension of bias raises a question of procedural fairness, and that the
standard of review is therefore correctness. According to the Federal Court of
Appeal: "[w]hether a tribunal’s decision was made in breach of the duty of
procedural fairness, including the requirement of impartiality, is determined
by a reviewing court on a standard of correctness." (Kozak v Canada
(Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 FCR 377, at
paragraph 44). Also see Gonzales v Canada (Minister of Citizenship and
Immigration), 2012 FC 231 [2012] FCJ No 261, at paragraph 23).
[21]
As
the Supreme Court of Canada stated in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, at paragraph 50, "When applying the correctness standard, a reviewing court
will not show deference to the decision maker’s reasoning process; it will
rather undertake its own analysis of the question. The analysis will bring the court
to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and
provide the correct answer. From the outset, the court must ask whether the
tribunal’s decision was correct."
V. APPLICABLE
PRINCIPLES
[22]
The
principles that should guide the Court are well known. They have been repeated
countless times and can be summarized as follows:
·
Our
judicial system is based on the presumed impartiality of judges, an essential component
that is "the core attribute of the judiciary." Impartiality is the
idea that a judge must "approach the case to be adjudicated with an open
mind" (Wewaykum, at paragraphs 58-59; R v S(RD), [1997] 3
SCR 484, at paragraph 93 (R v S(RD))).
·
When
a party alleges an apprehension of bias, these allegations must not be taken
lightly, and must be based on substantial grounds, as they raise doubts about
the fundamental idea of judicial impartiality in our judicial system (R v S(RD),
at paragraph 113).
·
The
party alleging apprehension of bias therefore has the responsibility of
rebutting this strong presumption and demonstrating that there exists
sufficient justification for the judge to be disqualified (Wewaykum, at
paragraph 59).
·
Arbitrators
are also presumed to be impartial (West Region Child and Family Services Inc
v North, 2008 FC 85, [2008], FCJ No 99, at paragraph 14).
·
Note
that an actual bias is quite different from a reasonable apprehension of bias.
The second concept is more concerned with the image of justice. The objective
is not to determine if a judge is impartial, but rather if a reasonable person
would perceive the judge as impartial. This is because "public confidence
in our legal system is rooted in the fundamental belief that those who adjudicate
in law must always do so without bias or prejudice and must be perceived to do
so." (Wewaykum, at paragraph 57, see also R v S(RD), at paragraph 92).
·
Reasonable
apprehension of bias exists when there are reasons to believe that the decision
maker would be predisposed "towards one side or another or a particular
result." (Wewaykum at paragraph 58). The criteria to apply were set
out in Committee for Justice and Liberty v Canada (National Energy Board),
[1978] 1 SCR 369 (Committee for Justice and Liberty), and were
repeated in Wewaykum, at paragraph 60: "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?"
·
A
reasonable person need not have a "very sensitive or scrupulous conscience."
(Wewaykum, at paragraph 76).
·
This
analysis depends on the context and facts of each case and there is no textbook
formula or preconceived test that can be applied (Wewaykum, at paragraph
77; R v S(RD), at paragraph 136).
·
In
many cases, judges may have recused themselves when it was, "strictly
speaking, not legally necessary to do so," in order to respect the
standard of reasonable apprehension of bias (Wewaykum, at paragraph 78).
[23]
In
short, the question the Court must answer is this: Would a reasonable,
right-minded and informed person believe that Arbitrator Dufort, whether
consciously or not, could be influenced in an inappropriate manner by his role
as counsel for Canada Post or participation within the Conservative Party?
Context
of labour relations and final offer selection arbitration
[24]
Before
discussing the two reasons alleged for recusal, it is important to take note of
the context in which these requests were made.
[25]
In
Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003
SCC 29, [2003] 1 S.C.R. 539 (Canadian Union of Public Employees), the
Supreme Court of Canada assessed the nature of arbitration in labour relations
and noted at paragraph 53:
A distinction must be drawn between “grievance
arbitration”, where the arbitrator(s) are required to interpret a collective
agreement previously arrived at, and “interest arbitration” in which the
arbitrator(s) decide upon the terms of the collective agreement itself. The
former is adjudicative; the latter is more or less legislative.
[26]
And
at paragraph 109:
Labour arbitration as a dispute-resolution mechanism
has traditionally and functionally rested on a consensual basis, with the
arbitrator chosen by the parties or being acceptable to both parties. The
intervener, National Academy of Arbitrators (Canadian Region), contended that…
If arbitrators are, or are
perceived to be, a surrogate of either party or of the government, or appointed
to serve the interests of either party or the government, the system loses the
trust and confidence of the parties, elements essential to industrial relations
peace and stability ... A lack of confidence in arbitration would invite
labour unrest and the disruption of services, the very problem impartial
interest arbitration was designed to prevent. [Emphasis added.]
[27]
In
the decision on the recusal of the first arbitrator, Mr. Osborne, Justice
Martineau repeated the Supreme Court's words, adding: "[t]he general
principles outlined above by the Supreme Court of Canada apply with equal force
in the case of a final offer arbitration process under the special Act." (Canadian
Union of Postal Workers
v Canada
Post Corporation,
2012 FC 110, [2012] FCJ No 199, at paragraph 38 (Canadian
Union of Postal Workers)).
[28]
The
context here is rather different from that of Wewaykum, as in that
matter the decision in question had been decided collectively by the Supreme
Court of Canada. In this case, the appointed arbitrator must choose between the
positions of Canada Post and the Union, and no compromise can be made between
the two. Furthermore, the decision will be protected by a full privative
clause, and the offer selected will become the collective agreement until
December 31, 2015. It is therefore essential that this choice be perceived
as being made impartially; otherwise, the labour relations climate between the
two parties will suffer.
[29]
Justice
Martineau also discussed the type of arbitration applicable in this case at
paragraphs 39 and 40:
It should be pointed out that, in the context of the
traditional interest arbitration process, compromise possibilities are not
eliminated and the concept of equity is not completely excluded. However, final
offer arbitration leads to one-sided law-making. As a result of the
special Act, we are dealing with a judicialized labour dispute where the
operation of the usual balance of power no longer guides the final offers that
will be presented by both parties. It is the prevailing party, as designated by
the final offer arbitrator, that will dictate to the unsuccessful party, for
the next three years (and perhaps retroactively) the working conditions of
postal workers and the limitations, if any, to the employer’s management rights
(subsection 11(4) and section 14 of the special Act). Therefore, the weight of
responsibility is enormous. This is a high-wire act, probably more political
than legal, because this case is concerned with legitimacy, and not legality.
In the end, in the arbitrator’s decision, which will
immediately become binding, the final offer arbitrator will have to convince
the unsuccessful party that the final offer presented by the prevailing party
is ultimately more reasonable given the constraints and the criteria dictated
to him or her by Parliament, in this case, section 11 of the special Act,
political determinism oblige. Thus, it will be easy to turn the final offer
arbitrator into a scapegoat. The rhetoric of labour relations will invariably
link the prevailing party to its messenger. This can only be detrimental to the
company, the workers and the government itself. In this case, if the
arbitrator’s appointment is deemed problematic for or unacceptable to the
unsuccessful party right from the outset, this will completely undermine
confidence in this extraordinary process for determining working conditions.
Caution is required to avoid the deterioration of the labour relations
environment for years to come. [Emphasis added.]
[30]
It
is therefore clear that the arbitrator had to take this particular context into
account when analyzing the allegation of reasonable apprehension of bias, as
the Court must now also do.
VI. POSITION
OF THE PARTIES
A.
The Union's position
[31]
The
Union's two reasons for Arbitrator Dufort's recusal are his role as counsel for
Canada Post during the pay equity dispute and his involvement in the
Conservative Party. These two items raise reasonable apprehension of bias in
reasonable and right-minded people.
[32]
Furthermore,
the fact that the arbitrator himself disclosed this information to the parties
and asked them to contact him if there was a problem is proof that the
arbitrator himself believed that this information could create a reasonable
apprehension of bias. A well-informed person knows the following:
Role
as counsel for Canada Post
[33]
The
time that has elapsed since the end of Mr. Dufort's mandate, i.e. 9 years, is
much shorter than the 15-year period that had elapsed for Justice Binnie in Wewaykum.
[34]
Furthermore,
this time must be considered in light of the fact that the dispute continued
until 2011, reaching the Supreme Court of Canada. During his mandate, the
arbitrator worked with Robert Grant, who represented Canada Post in appealing
this case until it reached the Supreme Court. As senior partner at Heenan
Blaikie until 2009, and residing in Ottawa since 1999, the arbitrator was put
in a situation in which a reasonable and right-minded person having thought the
matter through would be justified in believing that he could be directly or
indirectly consulted by other partners from the same firm who continued to
handle the file until 2011.
[35]
For
the Union, it is important to consider the passage of time as it relates to the
current financial effects of the pay equity dispute. As mentioned in Canada
Post's financial report for the third quarter of 2011, one of the main reasons
for the financial losses, Canada Post's first losses in 16 years, is the pay
equity dispute. It is reasonable to believe that this financial fact could
influence the arbitrator in his analysis.
[36]
It
is also reasonable to believe that, as partner, he profited financially from
this case. According to Canada Post’s counsel, Arbitrator Dufort also received
a limited mandate regarding health and safety from Canada Post in 2003, and possibly
other files until 2006.
[37]
Arbitrator
Dufort's role can be differentiated from Justice Binnie's in terms of the
importance and scope of his role in this case. In fact, Mr. Dufort's
participation in the Canada Post pay equity dispute is much larger than the
"limited administrative and supervisory role" that Justice Binnie played
in the case when he was Assistant Deputy Minister of Justice and supervised
thousands of cases.
[38]
Arbitrator
Dufort was one of the key figures in this case, as a member of the counsel team
before the Tribunal and as a senior partner in Heenan Blaikie.
[39]
A
reasonable person would have every reason to believe that the nine years that
have elapsed would not have the mitigating effect that the arbitrator
attributes to them.
[40]
The
Union argues that it is incorrect not to see any ties between the pay equity
dispute and the current dispute. The pay equity dispute mainly dealt with the
filing of expert reports that aimed to establish reparations for discrimination
and required the Tribunal to carry out semi-legislative research on the level
of pay appropriate for a category of workers. The arbitrator's work is similar,
as he will have to, in a semi-legislative manner, establish labour conditions.
[41]
Furthermore,
in the pay equity dispute, experts had to examine collective agreements and
evaluate jobs at Canada Post in terms of pay and other benefits. Finally, equal
treatment is also involved in this case, as Canada Post wished to establish different
labour conditions for different categories of employees, based on their hiring
date.
[42]
The
fact that the dispute does not involve the same two parties is not decisive, as
the appearance of bias does not require the adjudicator to stand before the same
two parties. On the contrary, it is enough that the arbitrator has represented
Canada Post in a very important dispute and the corporation is now before him
for a similar case.
[43]
Furthermore,
unlike Justice Binnie in Wewaykum, the arbitrator acts as sole
arbitrator, not as a member of a panel, as was the case with Justice Binnie,
and moreover the arbitrator will have to choose between the final offers
submitted by Canada Post and the Union. No compromise can be made, and this
decision is protected by a full privative clause.
Involvement
with the Conservative Party
[44]
In
the Union's eyes, a well-informed person who is aware of the arbitrator's
partisan activities would have a reasonable apprehension of bias.
[45]
The
two years since he has ceased his partisan activities cannot be considered a
reasonable period of time in terms of case law.
[46]
Furthermore,
until very recently, the arbitrator's Facebook page contained, under the
"activities and interests" categories, links to two Conservative
associations, and he had Ministers Raitt and Fletcher as "friends".
These links were added in July and November of 2010, well after the date on
which the arbitrator indicated having terminated his partisan activities.
[47]
While
the Union does not know the exact role the arbitrator played in the development
of Conservative Party policy, the fact that the arbitrator has not clarified
his role in the National Policy Committee adds to the reasonable apprehension
of bias. The same goes for the various links on his Facebook page. He had the
opportunity to reassure the Union about these activities, but he chose not to
do so.
[48]
The
Special Act was sanctioned by Canadian Parliament, in which the Conservative
Party forms the majority government. Furthermore, the government is the sole shareholder
in Canada Post and therefore is concerned with its profitability.
[49]
The
Canada Post Corporation Act, RSC 1985, c C-10, also shows the ties
between the government and Canada Post. In addition, according to sections 6
and 7 of this Act, the directors on the Board of Directors are appointed to
hold office during pleasure by the Minister, with approval of the Governor in
Council. Section 22 also stipulates that, in the exercise of its powers and
duties, Canada Post must comply with the Minister's directives.
[50]
Someone
who is reasonable, well-informed and not over-scrupulous may believe that the
long-standing personal and professional relations between Arbitrator Dufort and
the Conservative Party, as well as with the representatives of Canada Post, did
not automatically come to an end along with his official professional
activities. It is also reasonable to believe that the arbitrator is still in
touch with influential members of the Conservative Party and current federal
government leaders, and that he could be influenced, even unknowingly.
[51]
The
Union therefore argues that, in the context of the Special Act, the arbitrator
appointed cannot have been counsel for Canada Post, nor can he have associated
with the Conservative Party, without raising a reasonable apprehension of bias.
B.
Canada Post's position
[52]
Canada
Post argues that Arbitrator Dufort's work as a lawyer in the pay equity dispute
and as a former active member of the Conservative Party are not sufficient
grounds for a reasonable apprehension of bias.
[53]
The Ontario Court of Appeal examined the criteria for
apprehension of bias in Ontario (Commissioner, Provincial Police)v MacDonald,
2009 ONCA 805 3 Admin LR (5th) 278, at paragraph 42: "... first, the
person considering the alleged bias must be reasonable; and second, the
apprehension of bias itself must also be reasonable."
[54]
According
to Canada Post, simple speculation, assumptions or personal beliefs are
insufficient to meet the high standard (Committee for Justice and Liberty,
at page 395; R v S(RD), at paragraphs 112 and 113). The same standard
applies when the decision maker himself discloses the information behind the
apprehension (Children’s Aid Society of the Regional Municipality of
Waterloo v L-AB, 2004 ONCJ 235, 134 ACWS (3d) 645, at paragraph 28, affirmed
[2005] OJ No 2315, 139 ACWS (3d) 881 (ON SC)).
Role
as counsel for Canada Post
[55]
Canada
Post takes note of the Union's admission that the arbitrator's professional
antecedents as counsel for the employer with Heenan Blaikie were not a problem.
[56]
According
to the Canadian Judicial Council, in Ethical Principles for Judges, a
period of more than five years is suggested as enough time for "cooling
off" with respect to the judge's former law partners, associates and
clients. There is a distance of nine years from the pay equity dispute, which
is therefore a considerable time period that is more than reasonable.
[57]
These
ethical principles were cited with approval in the case Syndicat des cols
bleus regroupés de Montréal, section locale 301 c Pointe-Claire (Ville de),
2011 QCCA 1000, [2011] JQ no 6327 (Syndicat des cols bleus). In this
case, the city's counsel believed that there was reasonable apprehension of
bias because a member of its legal firm had filed a petition for a declaration
of disqualification against the arbitrator 12 years prior, and the city's counsel
believed that the arbitrator was still prejudiced against all lawyers in that
firm. The majority of the Court of Appeal of Québec found that there was no
reasonable apprehension of bias, given the time that had passed since the
petition, as well as the fact that other lawyers from that firm had made
arguments before the arbitrator without issue.
[58]
Furthermore,
in Kowallsky v Public Service Alliance of Canada, 2008 FCA 183, 168 ACWS
(3d) 672 (Kowallsky), the Federal Court of Appeal rejected the
plaintiff's argument that there was reasonable apprehension of bias due to the
fact that the decision maker at the Commission had been employed by the Public
Service Alliance of Canada eight years prior, and the Alliance was a party to
the proceedings.
[59]
Canada
Post also argues that the cases are completely different. The pay equity
dispute before the Tribunal was solely intended to analyze the wage gap between
men and women for employees represented by a different union. In this case, the
arbitrator must select a final offer from one of the two parties based solely
on the criteria in the Special Act. Furthermore, these final offers will cover
a multitude of topics affecting a different Union than the one involved in this
dispute. These final offers will not affect wage increases for employees, as
these increases were already defined by the Act.
[60]
The
issue of whether or not the arbitrator benefited financially from the pay
equity dispute in the years following his involvement is not relevant and would
mean disqualifying any former partner in a law firm from acting in any case
involving parties that the firm represented at any time.
Involvement
with the Conservative Party
[61]
The
arbitrator's political activities ceased in 2010. It is pure speculation to
claim that the arbitrator is involved with current federal government leaders;
even if that were the case, it would have no effect on this arbitration.
[62]
Canada
Post argues that it is neither unusual nor surprising for a judge or arbitrator
to have previously participated in a political party; case law confirms that
such participation does not equate bias.
[63]
In
Samson Indian Nation and Band v Canada, [1998] 3 FC 3, 141 FTR 109
(FCTD), at paragraphs 64 to 68 (Samson Indian Nation and Band), Justice
Teitelbaum refused to find that there was reasonable apprehension of bias due
to his previous political activities.
[64]
In Muscillo Transport Ltd v Ontario
(Licence Suspension Appeal Board), 149 DLR (4th) 545, [1997] OJ No 3062,
the Ontario Superior Court decided that a member of the Licence Suspension
Appeal Board was not biased as a result of the fact that she had been the
secretary of the Conservative association and the Conservative minister had
made negative comments about the claimant before the Tribunal.
[65]
A
reasonable and well-informed person would recognize that a distinction must be
made between the Conservative Party, the government, Conservative ministers and
members of Parliament and Canada Post. The latter is an agent of the Crown, but
operates independently and at arm's length from the government, according to
the Canada Post Corporation Act.
[66]
Finally,
links on the arbitrator's Facebook page are insufficient grounds for a
reasonable apprehension of bias (Latronico v York Region District School
Board, 2012 HRTO 637 (Wright)). These links are not proof of personal
friendship and do not show how well the two individuals know each other. In the
same manner, links to professional or political associations do not in any way
indicate active participation.
[67]
Canada
Post maintains that the Union's actions and request for recusal are
incompatible, as it is difficult to understand why the Union did not carry out
independent verification of Arbitrator Dufort when it had both the time and
resources to do so, given how important the final offer selection arbitration
is to it.
[68]
Canada
Post argues that the Union has shown a lack of diligence, even wilful
blindness, and the Union is now barred from making a claim based on its own
turpitude (Fecteau v Gareau, 121 ACWS (3d) 530, [2003] JQ no
39 (CAQ)).
C.
The position of the Attorney General of Canada
[69]
The
two reasons for recusal invoked by the Union, taken alone or in combination, do
not raise a reasonable apprehension of bias in a reasonable and well-informed
person.
[70]
Mr.
Nadeau, who has worked for the Union since the early 1970s as consultant at the
national level, was the one who suggested Arbitrator Dufort to the Union;
however, he did not testify during the application for recusal. It is therefore
not possible to know if Mr. Nadeau was aware of Arbitrator Dufort's previous
dealings with Canada Post and yet still decided to submit Mr. Dufort's
name to the Union. The evidence shows, however, that Mr. Nadeau was of the
opinion that Arbitrator Dufort could do an honest job even though he had been counsel
for the employer.
[71]
Furthermore,
it would have been advisable for the Union to have done this extensive research
on Arbitrator Dufort before suggesting him as a candidate; in doing so, it
could easily have discovered that the arbitrator had worked for Canada Post, as
this is public information. Union members have also indicated that they were
aware that the arbitrator had worked for Heenan Blaikie, a firm that had
represented Canada Post in several files.
[72]
The
Attorney General of Canada notes that in Committee for Justice and Liberty,
at paragraphs 76 to 78, the Supreme Court of Canada made three preliminary
remarks that are very relevant to the proceeding the Union has brought before
this Court:
·
Firstly,
an apprehension must be based on serious grounds and the examination must be
done from the point of view of a reasonable person who is neither
over-sensitive nor over-scrupulous, given the strong presumption of judicial
impartiality the courts enjoy.
·
Secondly,
there is no textbook example of reasonable apprehension of bias, as this
analysis depends largely on the facts and circumstances of the case.
·
Thirdly,
it is very likely that, in many cases in which judges recused themselves, this
outcome is due to an abundance of caution, not because they were legally
required to do so.
Role
as counsel for Canada Post
[73]
The
Attorney General of Canada notes that, in the pay equity dispute, the primary
issue was the wage gap between men and women. In this case, the arbitrator will
not be determining salaries, and the only difference in treatment will be based
on the hiring date for different employees.
[74]
It
was the same for the limited mandate that the arbitrator received from Canada
Post in 2003. The arbitrator noted that he could have done other work from
Canada Post until 2006, but he does not remember if this was the case. In Wewaykum,
the Supreme Court of Canada indicated that a lack of recollection was relevant
and supports a lack of reasonable apprehension of bias (at paragraph 90).
[75]
In
sum, the passage of time and the difference between the two mandates suggests
that there is no reasonable apprehension of bias (Syndicat des cols bleus).
[76]
In
Canada (Attorney General) v Khawaja, 2007 FC 533, 311 FTR 157 (Khawaja),
Justice Mosley was asked to recuse himself because he had participated in the
drafting of Bill C-36 five years before and he would have to apply that law to
the case before him. The judge concluded that the nature of his role in
coordinating the draft of Bill C-36 did not include writing, that the law had
evolved since that bill was drafted, and the comments that Justice Mosley had
made at the time were purely informative. The judge also consulted the Ethical
Principles for Judges and concluded that the time that had passed and the
nature of his previous work were not enough to establish reasonable
apprehension of bias. He still recused himself from considering the
constitutional issue for other reasons, but decided to hear the other part of
the application.
[77]
There
are many decisions that support the idea that impartiality does not mean the adjudicators
must "discount the life experiences that may so
well qualify them to preside over disputes... true impartiality does not
require that the judge have no sympathies or opinions; it requires that the
judge nevertheless be free to entertain and act upon different points of view
with an open mind." (R v S(RD), at paragraph 119).
[78]
In
this case, Arbitrator Dufort was appointed for his experience in labour
relations, and he therefore could put this professional experience to use and
choose a final offer based on the requirements of the Special Act. The fact
that he had previously represented Canada Post does not mean he is not free to
entertain and act upon different points of view with an open mind.
Involvement
with the Conservative Party
[79]
The
Attorney General rejects the relationship presented by the Union between the
fact that the Conservative Party forms the majority government and the fact
that the government is the sole stakeholder in Canada Post. A distinction must
be made between a political party and the State, and the Conservative Party has
no direct or indirect interest in the arbitrator's decision in this case.
[80]
Furthermore, case law is clear that prior political
involvement does not constitute bias. The Attorney General refers to Fogal
v Canada (1999), 164 FTR 99, 85 ACWS (3d) 1058 (Fogal), in which Justice
Dubé states at paragraph 10 in response to a motion for recusal because
he had been a minister in Jean Chrétien's cabinet 25 years prior and would
therefore be favourable to the government's position:
Judges do not descend from
heaven. They come from various fields of activities ... The variety of our
individual careers is a rich source of knowledge and experience for the courts.
Once we took our oath of office, we divorced ourselves from our past and
dedicated ourselves to our new vocation. Our duty is to render justice without
fear or favours.
[81]
According
to the Attorney General, the information found on the arbitrator's Facebook
page does not prove that Arbitrator Dufort has not abstained from all
activities that may give the impression that he is actively involved in
politics.
[82]
Furthermore,
the arbitrator has Facebook "friends" from all political affiliations.
A reasonable person would not believe that these "friends" would
raise a reasonable apprehension of bias. Given that the Conservative Party is
not a party to this dispute, there are no serious grounds for the arbitrator's
recusal. The fact that the arbitrator has recently removed these links from his
Facebook page does not indicate that he does not have the independence and
impartiality required for his task.
VII. ANALYSIS
Introduction
[83]
The
analysis of an apprehension of bias is essentially based on the facts and
context of each case. Especially in this case, the context of final offer
selection arbitration provides a backdrop for the court's analysis.
[84]
It
is important not to lose sight of the fact that this is a labour relations context,
which is a polarized field, and the arbitrator alone will have to choose one of
the final offers put forth by the parties, without compromise. Furthermore,
this decision will be protected by a full privative clause.
[85]
As
my colleague, Justice Martineau, so aptly reminded us, "final offer
arbitration leads to one-sided law-making ... [t]his is a high-wire act,
probably more political than legal, because this case is concerned with
legitimacy, and not legality. (Canadian Union of Postal Workers, at paragraph 39).
(A) Role as counsel
for Canada Post
1.
Passage
of time
[86]
A
well-informed person is aware that the passage of time is a "significant
factor [that] stands out" (Wewaykum, at paragraph 85). I agree with
the Union's claim that the nine-year period must be examined from the
perspective of the "continuity" of the pay equity dispute, which
ended with the 2011 Supreme Court decision.
[87]
Indeed,
the evidence shows that this dispute had an impact on the Corporation's
revenue. Canada Post's financial report for the third quarter of 2011 indicates
that one of the main reasons for its financial loss, the first loss in 16
years, is the pay equity dispute. While the financial losses were not
recurrent, a reasonable and right-minded person having thought the matter
through may fear that this current fact could influence the arbitrator in his
decision.
[88]
Therefore,
despite the nine years that have elapsed since Mr. Dufort ceased active
participation in the pay equity dispute, I maintain that there has not been a
"cooling off" resulting from the passage of time that would mitigate
the nature and importance of his participation.
2. Role
as decision-maker in the previous case
[89]
The
nine-year period must also, in my opinion, be analyzed in light of the
importance of the mandate, which lasted nearly five years. While we do not know
the exact details of Arbitrator Dufort's work, a reasonable person having thought
the matter through, understanding the reality of legal firms, would be
justified in believing that, as a member of a team of four, he played an
important role in presenting evidence to the Tribunal, as well as in developing
the litigation strategy with his client, Canada Post. Let us remember the scope
of this litigation: 414 days of hearings and likely a similar number of days of
preparation. A reasonable and well-informed person may believe that the
arbitrator had formed ties with various managers at Canada Post during this
mandate, and could fear that these ties would influence the arbitrator, even
unconsciously.
3. Similarities
between the two cases
[90]
In
this case, it is true that the arbitrator will not be dealing with the same
dispute. In the pay equity dispute, the proceedings before the Tribunal dealt
only with the wage gap between men and women. Here, we have final offer arbitration
where the arbitrator will have to choose one of the two offers, one that will
cover a multitude of subjects. However, a person having thought the matter
through will note that both cases deal with the relationship between employees
and management at Canada Post. The arbitrator was Canada Post's counsel in a
similar dispute that relied on evidence from experts, who were essentially
mandated by the parties to examine several collective agreements binding Canada
Post, evaluate the jobs and take salary adjustments and some benefits given to
employees into consideration for the purpose of establishing remuneration.
[91]
Furthermore,
Union witnesses have stated that, in the current round of negotiations, Canada
Post wants to establish different working conditions based, inter alia, on the
hiring date of employees, as these distinctions are found in all comprehensive offers
put forth by the employer.
[92]
In
sum, a well-informed person would note that Arbitrator Dufort acted for Canada
Post in an important and long-lasting case comparable to the one with which he
is now entrusted, possibly raising fears that, consciously or unconsciously, he
could favour the position of Canada Post.
B. Political
involvement
[93]
Arbitrator
Dufort's multiple roles and activities in the Conservative Party support the
appellant's claim of reasonable apprehension of bias: the short two-year time
period since the arbitrator claimed having ceased all activities and the fact
that he still holds interests as well as ties with important members of this
Party are sufficient grounds to meet the burden of proof on the Union.
[94]
To
this purpose, the Union submitted Arbitrator Dufort's Facebook page, where the
"activities and interests" section shows, as of April 22, 2012, two Conservative
associations, namely the Westmount–Ville-Marie Conservative Association and the
page for Conservative MP Rempel for Calgary Centre-North.
[95]
According
to the admissions made before the arbitrator on April 30, 2012 and according to
the Facebook pages of the Association and the MP, it is clear that they were
respectively created in July and November 2010. Therefore, the arbitrator must
have chosen to include the links to these pages after they were created, well
after the time he claims to have stopped all political activities.
[96]
Furthermore,
the arbitrator's Facebook page, as examined on April 22, was clear: the
arbitrator is Facebook "friends" with the Honourable Lisa Raitt, the
Minister who, under the law, appoints the final offer arbitrator, and the
Honourable Steven Fletcher, Minister responsible for Canada Post. Once again,
the arbitrator chose to maintain ties with these people.
[97]
A
well-informed person would also note that, after Justice Lemieux granted a
stay, the arbitrator found it advisable to remove these ministers from his list
of friends. While in the reasons for his decision Arbitrator Dufort lists
"friends" with other political affiliations, it is worrisome to see
that he only chose to remove those two Conservative ministers from his list,
and that he did not deem it necessary to explain these ties, which contradict
Arbitrator Dufort's statements in his April 17, 2012, decision, in which he
claimed to have ceased all political activities and associations in January
2010.
[98]
When
the Union raised concerns about the role he played in the National Policy
Committee concerning the right to strike, Arbitrator Dufort falls back on the
absence of proof by the Union, whose witnesses asserted that they did not know
his exact role on the national committee. However, given the submitted proof of
his participation in the policy committee, as well as proof of his ties to the
Conservative Party (beyond the two-year period in which he had claimed having
stopped all activities), Arbitrator Dufort had to respond to these concerns in
order to reassure the Union. This is exactly what Justice Mosely did in Khawaja,
where he thoroughly explained his involvement in the drafting of the bill in
question. Justice Teitelbaum also disclosed details of his relationships with
certain individuals, relationships that were the basis for the allegation of
reasonable apprehension of bias (Samson Indian Nation and Band, at
paragraphs 15-16, 67).
[99]
The
respondents argue that this is insufficient proof, and that a reasonable and well-informed
person would have no reasonable apprehension of bias due to the fact that the
appellant had been actively involved with the Conservative Party, as well as
from his presumed contact with Conservative ministers. The principle of
impartiality does not mean that adjudicators "discount the life
experiences that may so well qualify them to preside over disputes" (R
v S(RD), at paragraph 119).
Furthermore, in Fogal, the appellant asked the judge to withdraw because
he had been a minister in Jean Chrétien's cabinet 25 years before, and he would
therefore be favourable to the government's position. The judge refused to
recuse himself. First, note that, in Fogal, the time period was 25
years. The passage of time was such that a reasonable and right-minded person
could not find any reasonable apprehension of bias.
[100] With respect, I must
conclude that the case law cited by the respondents on tribunals that have
examined allegations of apprehension of bias, with regard to an adjudicator's
political involvement, has limited value as precedent because, in these cases,
the time frame was so long that it was obvious that the passage of time was the
most significant factor. That is not the case in this instance, as only
two years have elapsed since Dufort halted his partisan activities and
evidently maintained his interests and ties with members of the Conservative
Party and the sitting government. A well-informed and not overly-scrupulous
person may believe that he could be influenced by these people, even without knowing
it.
[101] Furthermore, the
respondents argue that the fact that the government is the sole shareholder in
Canada Post does not matter. A well-informed person is able to distinguish
between a Conservative MP or minister in the Conservative Party as a political
entity and the government in and of itself. I do not agree with this claim.
[102] As the appellant's counsel
has reminded us, the Canada Post Corporation Act stipulates that, under
section 6, the directors of the Board are appointed to hold office during pleasure
by the Minister, with the approval of the Governor in Council for respective
terms of at most four years. The Chairperson of the Board is appointed by the
Governor in Council to hold office during pleasure for such term as the
Governor in Council considers appropriate, under section 7. Finally, under section
8, the president of Canada Post is appointed by the Governor in Council to hold
office during pleasure for such term as the Governor in Council considers
appropriate. In addition, under section 22 of the Act, Canada Post must
comply with the Minister's directives.
[103] There is therefore a
close relationship between Canada Post and the government, which is a majority
Conservative government. A well-informed person having thought the matter
through may think that the appointed arbitrator, consciously or unconsciously,
having recently been actively involved with the Conservative Party, would be
predisposed to favour the position of Canada Post, which is required to
follow the Minister's directives, and whose only shareholder is the
government.
CONCLUSION
[104] The respondents attempted to depict the Union as an "overly
scrupulous and over-zealous" party that had been insufficiently diligent since, at the beginning, the
Union had included Mr. Dufort's name on the basis of information from
their legal counsel and that it was extremely unusual for someone to ask that
an adjudicator be recused when that
party in fact suggested his appointment.
[105] I understand the respondents' frustration, as
this case is a material one for all of the parties
concerned, and any delay in appointing an arbitrator means a delay in resolving
this dispute, which has already seen a number of setbacks.
[106] The fact remains that the uncontradicted
evidence presented indicates that Mr. Dufort's
candidacy became unacceptable to the Union when the facts about his involvement as Canada Post’s counsel and active
participation in the Conservative
Party became known.
[107] Mr. Dufort himself considered the information important enough to disclose to the Union and request comments if
it was a problem. This was also what he told the Toronto Star on March
15, 2012. What is the purpose of such
an exercise if not to open the door to a request for recusal?
[108] If the Union had been an overly scrupulous party, it would not
have accepted, as it did, a
lawyer who had represented the employer earlier in his career. But from this to
entrusting a mandate as critical as final offer arbitration to Mr. Dufort,
given the information he
deemed appropriate to communicate following his appointment, is a step the
Union is not prepared to take, given the special circumstances of this dispute.
[109] In my opinion, the combined effect of the
evidence submitted in this case supports the Union’s position.
[110] In short, I think that a reasonable, sensible
person who had thought
the matter through can reasonably be
concerned that an arbitrator who had not only been Canada
Post's counsel for many years in a similar case that, in 2011, led to substantial financial losses for
Canada Post and who had also, until recently, participated in a variety of party activities and maintained ties with the
ministers concerned, may serve
the interests of a party or the government, even unknowingly.
[111] I understand that the situation Mr. Dufort
was in was a delicate one. It is clear that a request
for recusal regarding Mr. Dufort would be difficult to rule on, given the
double role of judge and party that a decision-maker must play. Nonetheless,
this decision must always be guided by the fact that "those who adjudicate the law must always do so
without bias or prejudice and must be
perceived to do so" (Wewaykum, at paragraph 57).
[112] The Court notes with approval Fernand Morin's statements in his
work Lettre à un arbitre, [letters to an arbitrator], quoted by Justice
Wagner in Syndicat des cols bleus, at paragraph 124:
[Translation]
It is always
difficult, and even delicate, to see clearly in one's own case when the
arbitrator must in such situations be both a judge and a party.
Should he not assess his own situation? In our
opinion, as soon as we consider that it is possible for such a doubt to
reasonably arise in one party's mind, the arbitrator must
step down, first and foremost in the interests of both parties, as well as in the
interests of justice.
[113] In short, as the Supreme Court of Canada stated
in Canadian Union of Public Employees, at paragraph 109:
... If arbitrators
are, or are perceived to be, a surrogate of either party or of the government, or
appointed to serve the interests of either party or the government, the system loses the trust and confidence of the parties, elements
essential to industrial relations peace and stability ... A lack of confidence in arbitration would invite labour unrest and the disruption
of services, the very problem impartial interest arbitration was designed to
prevent.
[114] In the extraordinary context of final offer arbitration
under the Special Act, it is even
more important to apply these principles, so as to protect confidence in
arbitration and "avoid the deterioration of the labour
relations environment for years to come" (Canadian
Union of Postal
Workers, at
paragraph 40).
[115] For these reasons, it is the Court's opinion that Arbitrator
Dufort must be recused.
JUDGMENT
THE COURT ORDERS THAT:
1.
The
application for judicial review is allowed.
2.
The
decisions to reject recusal rendered by Arbitrator Guy Dufort on April 17, 2012,
and April 30, 2012, are vacated.
3.
Arbitrator Guy Dufort is recused.
4.
The Minister must appoint a new final offer arbitrator in the matter of the dispute between the Union
and Canada Post.
With costs.
“Danièle
Tremblay-Lamer”
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