Date: 20121128
Docket: T-1740-11
Citation: 2012 FC 1392
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
BETWEEN:
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CONSEIL DES MONTAGNAIS
DE NATASHQUAN
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Applicant
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and
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EVELYNE MALEC, SYLVIE MALEC, MARCELLINE
KALTUSH,
MONIQUE ISHPATAO, ANNE B. TETTAUT, ANNA
MALEC, ESTELLE KALTUSH AND THE CANADIAN HUMAN RIGHTS COMMISSION, THE CANADIAN
HUMAN RIGHTS TRIBUNAL AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR ORDER
Simon Noël J.
[1]
These
reasons follow the order issued by this Court on November 9, 2012.
[2]
This is an application
for judicial review of a decision dated September 29, 2011, and delivered
by the Chairperson of the Canadian Human Rights Tribunal [the Tribunal]. In
that decision, the Chairperson held that Member Doucet would sit in review
of the decision he himself had rendered, which was the subject of a judicial
review allowed by this Court. The applicant and the Canadian Human Rights
Commission [the CHRC] filed written submissions in support of their respective
positions and presented oral arguments at the hearing.
I. The
facts
[3]
The
respondents filed a complaint with the Canadian Human Rights Commission [the Commission]
against the applicant on April 21, 2007. They argued that it was
discriminating against them because of their race or national or ethnic origin,
contrary to section 7 of the Canadian Human Rights Act, RSC (1985),
c H-6.
[4]
The
complaint was referred to the Tribunal. It was allowed in part by the Tribunal in
a decision rendered on January 27, 2010. Member Doucet found that
the system of isolated post allowances established by the applicant for
employees not residing in the community was discriminatory, as the allowances
are generally granted to non-Aboriginals. He also found that the applicant had
not provided a bona fide justification to rebut the prima facie presumption
of discrimination.
[5]
The
applicant filed an application for judicial review of the Tribunal’s decision.
It was allowed in a decision rendered on December 23, 2010 (Conseil des Montagnais de Natashquan v Malec, 2010 FC 1325, 2010 CarswellNat 5666). The Court held that Member
Doucet’s decision did not fall within the range of reasonable outcomes
defensible in respect of the facts and law, given that he had not considered
all of the evidence presented by the applicant to explain why the prima
facie evidence of discrimination was rebuttable.
[6]
The
Court found that the evidence of a justification had been erroneously rejected outright
by the decision maker, who had an obligation to consider it, analyze it and
address it in his decision. The decision maker failed to consider the testimony
of three people who had provided a justification for the system of isolated
post allowances, which the decision maker had declared to be prima facie discriminatory.
[7]
Justice Tremblay-Lamer’s
order reads as follow:
THE COURT ORDERS that the application for judicial
review be allowed, that the decision be set aside and the matter be referred
back to a member or panel of the Canadian Human Rights Tribunal for redetermination
in accordance with these reasons. With costs.
[8]
The
respondents wanted to appeal the decision, but the time limit expired, and
their application for an extension was refused.
[9]
On
March 7, 2011, the Tribunal’s Director of Registry Operations issued
instructions to the parties’ counsel, asking them to file written submissions
on how the case should proceed. All of the parties filed written submissions. Counsel
for the applicant asked for a different member to be assigned to the file and
for a de novo hearing.
[10]
The Chairperson
of the Tribunal decided to reassign the file to Member Doucet. In her decision,
she gave him the discretion to determine his own procedure. That decision is
the subject of this application for review.
II. The
decision under review
[11]
The Chairperson
noted that Justice Tremblay-Lamer had not specified whether the case
should be reassigned to Member Doucet or assigned to a different member.
[12]
The Chairperson
of the Tribunal considered the principles developed in the case law regarding
the possibility for a decision maker to review a decision that he or she has
rendered, in cases where such a situation does not lead to a reasonable
apprehension of bias. She applied to the facts the test developed in the case
law of whether an informed person, viewing the matter realistically and
practically—and having thought the matter through—would more likely than not
believe that Member Doucet, whether consciously or unconsciously, would not
decide fairly if he had to examine the file again.
[13]
According
to the Chairperson, Member Doucet has a duty to act fairly and impartially.
There is therefore a presumption that he will do so. The Chairperson of the
Tribunal noted that the applicant has the burden of establishing a reasonable
apprehension of bias.
[14]
The Chairperson
of the Tribunal found that the facts of this case were similar to those in Gale
v Canada (Treasury Board), 2004 FCA 13, 316 NR 395 [Gale], in which
an Adjudicator had reviewed a decision that he had previously rendered because
he had failed to consider one item of evidence. Moreover, she added that Member
Doucet had never made any statements that would give rise to a reasonable
apprehension of bias. The Chairperson of the Tribunal therefore found that the
file could be reassigned to him, given that the applicant had not met its
burden of establishing a reasonable apprehension of bias.
III. The submissions of the
applicant and the Commission
A. Did the Chairperson of the
Tribunal err in assigning to Member Doucet the review of his own decision?
[15]
The
applicant raises several arguments against the decision. The applicant submits
that Member Doucet will not act impartially and that his reassignment to the
file would be a violation of the right to a fair and impartial hearing. The applicant
submits that administrative tribunals must meet the requirement of impartiality
and that they must therefore avoid having a decision maker review his own
decision, except where it is explicitly or implicitly permitted by law, which
is not the case here. Therefore, another decision maker must be assigned to the
file so that the principles of procedural fairness and natural justice are
respected.
[16]
According
to the applicant, the member has certainly formed an opinion about the evidence
he has heard. Moreover, he is being asked to make determinations about evidence
that is not new. The evidence in question was submitted to him at the hearing,
and he concluded that there was a lack of evidence. Member Doucet cannot
reassess evidence that he had initially ignored. He has already made a negative
assessment of the witnesses’ credibility and therefore cannot assess it again.
[17]
It
adds that if the Federal Court had wanted the same decision maker to hear the
case, this would have been clearly indicated in its decision.
[18]
Finally,
the applicant proposes de novo proceedings so that it can exercise its
right to make full answer and defence. However, during the submissions, counsel
for the applicant mentioned that it was possible to shorten the evidentiary
process by not rehearing some of the testimony already heard, but rather
relying on the archives of the proceedings that have already taken place before
the Tribunal.
[19]
The
Commission, on the other hand, argues that no reasonable apprehension of bias
arises from Member Doucet’s reassignment to the file. A decision that has
been the subject of a judicial review that is remitted for rehearing does not
in itself create a problem of bias. According to the Commission, specific,
concrete evidence is required to rebut the presumption of impartiality of a
decision maker. The fact that he must review a decision that he has rendered,
following instructions from the Federal Court to consider all of the evidence,
does not raise an apprehension of bias.
[20]
The
Commission cites Vilven v Air Canada, 2009 FC 367, [2010] 2 FCR 189 [Vilven],
in support of its arguments. In that case, this Court allowed the application
for judicial review of a decision of the Tribunal. The case was remitted to the
decision maker who had rendered the impugned decision and ultimately reached a
different conclusion.
[21]
It
has been suggested that the decision maker in this case must correct an error
of law that he committed when he heard the case the first time. According to
the Commission, all he needs to do is take into account the evidence that he
had not considered. The failure to consider certain items of evidence does not
mean that the decision maker has decided the issue in advance.
[22]
According
to the Commission, it is in the public interest that the member who first heard
the matter sit in review, given his in-depth knowledge of the file.
[23]
It
also submits that in its decision of December 23, 2010, the Federal Court
did not order that the matter be remitted to a different member or that a de
novo hearing be held. If Justice Tremblay-Lamer had wanted it
otherwise, she would have indicated this clearly in her conclusions.
[24]
According
to the Commission, this application for judicial review is a disguised appeal
of the decision of December 23, 2010. The applicant should have appealed
the decision, or at least requested a clarification. Therefore, the Commission
submits that the applicant has waived the possibility of raising the issue of
bias and that this application constitutes an abuse of process.
B. Did the Chairperson of
the Tribunal err in rendering her decision without allowing the parties to make
oral submissions and in allowing the CHRC to intervene?
[25]
The
applicant submits that the Chairperson of the Tribunal did not respect the
principles of natural justice and erred in not allowing the parties to make
oral submissions before she rendered her decision. According to the Commission,
there is no obligation to allow the parties to make oral submissions.
Proceedings are to be conducted informally, according to section 48.9 of
the Canadian Human Rights Act, RSC (1985), c H-6. In this case, written
submissions sufficed.
[26]
The applicant also
raises procedural arguments:
- the participation of
the Canadian Human Rights Commission in Tribunal proceedings; and
- the use of the word “requête” [motion] in the heading of the decision of the
Chairperson of the Tribunal.
According to the Commission, these arguments are not
determinative of this application for judicial review.
[27]
Having reviewed the
various arguments, the Court finds that the argument relating to the importance
of respect for the principle of impartiality of the member and the assignment
of the file to the person who had originally decided the matter raises an
important issue that will be determinative of this case. As explained during
the hearing, the Court will make the necessary determinations on this issue,
which will also determine the final outcome of the dispute on which this
application for judicial review is based. Therefore, it will not be necessary
to address the procedural arguments.
IV. The issue
[28]
The
following issue is at the heart of this dispute:
- Did the Chairperson of the
Tribunal err in assigning the file to Member Doucet?
[29]
Given that this is a question
of procedural fairness relating to one of the fundamental elements of our
judicial and quasi-judicial systems, namely, the impartiality of the decision
maker, the issue will be reviewed on a standard of correctness (see Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at paragraph 44, [2009] 1 S.C.R. 339).
V. The analysis
[30]
The
test of reasonable apprehension of bias was established in Committee for
Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369, 9 NR 115 at paragraph 40:
[T]he apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. . . . [T]hat test is “what would an informed person, viewing the
matter realistically and practically—and having thought the matter through—conclude.
Would he think that it is more likely than not that [the decision maker],
whether consciously or unconsciously, would not decide fairly.”
This case establishes the approach that must be
followed, but particular attention will be paid to Gale, above, given
that that this was the case on which the Chairperson primarily relied in
deciding to reassign the case to Member Doucet. She found that the facts in
that case resembled the facts in this case. Therefore, to analyse this case
properly, one must ask whether an informed person, viewing the matter
realistically and practically and having thought the matter through, would
conclude that it is more likely than not that Member Doucet, whether consciously
or unconsciously, would not decide fairly.
[31]
Member Doucet’s
decision is a final one, in which, after reviewing the evidence, he decided how
much weight to give the testimony and to what extent it was credible and made
any determinations he considered appropriate. The member in fact rejected some
testimony and preferred other testimony.
[32]
Justice Tremblay-Lamer
found that Member Doucet’s decision was unreasonable. Her criticisms were
serious. She described as “not true” the statement that the employer had failed
to submit any evidence to justify the isolated post allowance policy. The judge
held that the member had failed, “without a valid reason”, to assign any
probative value to the admission of a witness during cross-examination. She
also criticized the decision maker for failing to examine the testimony of
another witness regarding the isolated post allowance. Finally, the judge
criticized the member for failing to consider “all of the testimony”.
[33]
These are major,
serious reproaches, which should be considered in the context of assigning the
file to a member, since this decision must be fair and equitable.
[34]
The Chairperson of
the Tribunal did not indicate in her decision whether she had taken into
account the criticisms directed against the member’s work. This strikes the
Court as a major omission in the context of her evaluation of which decision
maker should be assigned to the file.
[35]
Such criticisms rendering
the member’s decision unreasonable must necessarily have a significant impact
on the person against whom they are directed and influence his frame of mind,
whether consciously or unconsciously. It is also important to consider the
impression made by these criticisms in the eyes of an informed person who must
consider whether a given member is the appropriate person to reassess the
evidence and make new determinations fairly.
[36]
Naturally, there is a
presumption of judicial impartiality and mere doubts do not suffice to call
this into question. However, in this case, knowing that the decision was
declared “unreasonable” on the basis of strong and serious criticisms, going to
the very heart of the decision and the work normally required of a member in a
similar situation, will necessarily influence the assessment of an informed
person looking at such a situation objectively. It should be recalled that the member
signed a final decision in which he decided the questions of fact and law that
were before him.
[37]
But there is more to
it than that. In the first paragraph of her decision, the Chairperson limits
her understanding of the file and the case to the fact that the decision maker
erred in determining that there was no evidence in the file justifying the
applicant’s prima facie discriminatory policy. Such a general
understanding does not do justice to Justice Tremblay-Lamer’s reasons and
judgment.
[38]
I can only reiterate
the judge’s important comments from paragraph 36 of her decision (see Conseil des Montagnais de Natashquan v Malec, 2010 FC 1325):
It is one thing to
say that a piece of evidence is insufficient to overturn a prima facie
case of discrimination, but it is quite another to completely ignore, as
is the case here, the evidence of bona fide justification that had been
submitted.
The
Court then adds:
The Tribunal should have taken the applicant’s explanations into
account and then decided whether, under the applicable case law and having
considered the totality of the evidence, these explanations were sufficient to
overturn the prima facie case of discrimination.
[Emphasis added]
[39]
The task of the member
assigned to the file will not be limited to considering the evidence
establishing the prima facie presumption of discrimination. He may also
be called upon to assess the reasonableness of the compensation awarded by the
Tribunal to the respondents (see paragraphs 37, 12, 13 and 14 of
Justice Tremblay-Lamer’s decision). In her decision, the Chairperson of
the Tribunal did not take into consideration all of the work required by the
decision maker and the impact on a member who has already made up his mind by
making specific determinations with respect to all of these factors. In such
circumstances, it is an error to call upon a member to sit on appeal from his
own decision and to ask him to look at certain testimony (that he did not
consider overtly) more attentively or to ask him to reconsider his findings
regarding the isolated post allowances, should this be necessary. An informed
person would have much cause for concern with respect to the objectivity and
impartiality required of a member.
[40]
The Chairperson of
the Tribunal relied on Gale, above, to justify her decision to reassign
the file to Member Doucet. In that decision, the Federal Court of Appeal
remitted the matter to the same Adjudicator who had rendered the initial
decision. In that case, an issue of procedural fairness was raised, as a
decision maker rendered a decision without waiting for the results of a further
inquiry that he himself had requested. The Federal Court of Appeal concluded
that this had deprived the appellant of the procedural fairness to which he was
entitled and remitted the matter to the same Adjudicator for redetermination. Such
a situation was not found to raise an issue of bias or a reasonable
apprehension of bias.
[41]
That
is very different from the case before us. As mentioned above, the criticisms
directed against the member are serious and significant, and a completely new
assessment of the testimony is required, taking into account the law applicable
to such circumstances. In Gale, above, the failure to wait for
the results of a further inquiry was noted and the file was remitted to the Adjudicator for redetermination, taking into
account the new information. By comparing Gale, above, with this case,
the Chairperson of the Tribunal again demonstrated her limited understanding of
Justice Tremblay-Lamer’s reasons and judgment and their consequences.
[42]
An informed
person, aware of the issues, who has taken into consideration the member’s
decision; Justice Tremblay-Lamer’s reasons and judgment, including her
criticisms and the work to be done; and the decision of the Chairperson of the
Tribunal reassigning the file to the same member could only conclude that it is
more likely than not that the decision maker, whether consciously or
unconsciously, would not decide fairly.
[43]
Counsel for the
Commission argued that judicial economy favours reassignment to the same member.
This would save time for the parties and the decision would save judicial
resources. When the interests of justice are at stake and the impartiality of a
decision maker is called into question, time and financial considerations must
give way to the most fundamental aspect of our judicial system, the right to
see one’s case decided by an impartial and neutral decision maker free of any
ties that could influence him or her unduly.
[44]
I would add, taking
into account the opening remarks of counsel for the applicant during the
hearing, that a new member would have the opportunity to speak with the parties
and their counsel to find appropriate ways to make efficient use of the work
already done, with a view to saving time and money. This will better serve the
interests of justice and the parties.
[45]
Recently, in the
course of a motion for adjournment pending a decision of the Federal Court on
this application for judicial review, Member Doucet, despite having no motion
for recusal before him, responded in a decision rendered on April 11, 2012,
to the argument raised that the applicant’s request for an adjournment was
justified by a reasonable apprehension. He concluded that the situation arising
from Justice Tremblay-Lamer’s judgment is not a sufficient [translation] “basis for a reasonable
apprehension of bias”. He did so in the same manner as the Chairperson of the
Tribunal, without regard for the work required, what it implies and the
criticisms directed against him. He found that the circumstances did not create
a reasonable apprehension of bias. According to him, an informed person would find
that he had merely committed an error of law in his evaluation of the law and
the facts. It was partly on this basis that he dismissed the motion for an
adjournment of the hearing.
[46]
This Court is of the
view that it was not appropriate to make such a finding at that stage. He was
not considering a motion for recusal and the parties had not made submissions
on such a motion. Furthermore, he does not seem to attribute any importance to
the judgment rendered regarding his decision and does not seem to be cognizant
of the task to be done and the criticisms directed against him. Proceeding in
this manner seems to indicate a desire to hear the file before the Federal
Court has rendered its decision on the application for judicial review of the
decision by the Chairperson of the Tribunal. This suggests that the member is
not acting objectively.
[47]
I note that
the respondents, Évelyne
Malec, Sylvie Malec, Marcelline Kaltush, Monique Ishpatao, Anne B. Tettaut,
Anna Malec and Estelle Kaltush, did not file a memorandum with respect to
costs. The Commission has intervened in the file. Its participation has been
useful for the determinations made in the file. Accordingly, no costs will be awarded.
[48]
In conclusion, the Court finds that in the
circumstances, the Chairperson’s decision did not take into account all of the
work that must be redone or the criticisms directed against the member. Because
she failed to take these important elements into account, her analysis of the member’s
impartiality in such circumstances is erroneous. Thus, an informed person
familiar with the file would conclude that it is more likely than not that the member,
whether consciously or unconsciously, would not decide fairly. The matter is
therefore remitted to the Chairperson for reassignment to a different member.
[49]
I also have before me a motion for a stay of the
hearing scheduled for November 21, 22 and 23, 2012. It goes without saying
that since the application for judicial review is allowed, the hearing
scheduled for late November will not take place.
[50]
Because these reasons could not be ready before the
hearings scheduled for late November 2012, the Court signed an order on November 9, 2012, allowing the application for judicial review, and
remitted the file to the Chairperson for reassignment to another member.
“Simon Noël”
_____________________________
Judge
Ottawa, Ontario
November 28, 2012
Certified true translation
Francie Gow, BCL, LLB
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