Date: 20071018
Docket: T-1595-03
Citation: 2007 FC 1065
Ottawa, Ontario, October 18,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
DENNIS
NOWOSELSKY
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Dennis
Nowoselsky appeals from the order of a prothonotary acting as a case-manager.
The prothonotary refused to grant him an extension of time in which to file
affidavits and other documentary material in support of his application for
judicial review of a decision of the Canadian Human Rights Commission
dismissing his human rights complaint. Mr. Nowoselsky further seeks a stay of
the scheduling order made by the prothonotary until such time as his appeal is
disposed of.
[2]
Mr.
Nowoselsky asserts that he was denied a fair hearing before the prothonotary.
According to Mr. Nowoselsky, the conduct of the prothonotary in this
proceeding, as well as in an earlier proceeding involving Mr. Nowoselsky,
demonstrates that the prothonotary was biased against him. In the alternative,
Mr. Nowoselsky says that, at a minimum, he has a reasonable apprehension that
she was biased against him.
[3]
Mr.
Nowoselsky further submits that the prothonotary erred in denying him leave to
file affidavits and other documentary material in support of his application,
and that the material was relevant to the issues raised by his application for
judicial review.
[4]
For
the reasons that follow, I cannot agree. As a consequence, the appeal will be
dismissed.
Background
[5]
In
order to put Mr. Nowoselsky’s submissions into context, particularly as they
relate to the allegations of bias on the part of the prothonotary, it is
necessary to have some understanding of the long and tortuous history of the
legal proceedings in which Mr. Nowoselsky has been involved with respect to his
employment, including, but not limited to, this application for judicial
review.
[6]
Mr.
Nowoselsky worked for many years as a parole officer for the Correctional
Service of Canada in Prince Albert, Saskatchewan. During the
course of his employment, Mr. Nowoselsky was very active in union activities.
[7]
In
1995, it was announced that parole officers in Prince Albert would be
required to assume some clerical duties, including typing reports. This caused
Mr. Nowoselsky some concern, as one of his fingers had been amputated, and a
second finger was damaged as a result of a childhood accident. Mr. Nowoselsky
asserts that he sought the accommodation of his disability, which his employer
refused to provide.
[8]
In
1996, a number of issues were raised with respect to Mr. Nowoselsky’s conduct,
which led to a series of investigations. The result of these investigations
was that Mr. Nowoselsky’s employment with the CSC was terminated for misconduct
on November 16, 1998.
[9]
Mr.
Nowoselsky initiated a series of grievances in relation to his employer’s
conduct towards him, including a grievance with respect to the termination of
his employment. These grievances were ultimately dealt with by the Public
Service Staff Relations Board.
[10]
In
the meantime, in October of 1997, Mr. Nowoselsky contacted the Canadian Human
Rights Commission, asserting that the CSC had discriminated against him in the
course of his employment, by failing to accommodate his disability.
[11]
In
August of 1998, the Commission declined to deal with Mr. Nowoselsky’s complaint
at that time, as he was pursuing these matters through the grievance process.
[12]
After
a lengthy hearing before the PSSRB, the Board released its decision on February
26, 2001, dismissing Mr. Nowoselsky’s grievances. The PSSRB found that CSC was
justified in terminating Mr. Nowoselsky’s employment because of his misconduct.
[13]
The
PSSRB decision also addressed Mr. Nowoselsky’s allegation that CSC had breached
its duty to accommodate his disability, finding that while the employer “might
have been more pro-active in addressing this issue” so too could Mr.
Nowoselsky. The PSSRB found that there was no evidence that Mr. Nowoselsky had
raised the issue of his disability with CSC’s human resources personnel prior
to the allegations of misconduct arising. Moreover, the PSSRB found that as an
active union member, Mr. Nowoselsky would have been fully aware of his rights
in this regard.
[14]
The
PSSRB further found as a fact that when he did raise the issue of his
disability with management, Mr. Nowoselsky failed to follow up with his
supervisor, as he had been directed to do, in order to identify suitable
accommodative measures. The PSSRB also found that Mr. Nowoselsky had refused
to attend a medical assessment, and had provided no explanation for failing to
do so.
[15]
Mr.
Nowoselsky sought judicial review of the PSSRB’s decision. On June 30, 2005,
following a Status Review, his application for judicial review was dismissed
for delay. Mr. Nowoselsky endeavoured to appeal this decision, but failed to
do so in a timely manner.
[16]
Mr.
Nowoselsky points out that the prothonotary who dismissed his application for
judicial review of the PSSRB decision is the same prothonotary whose ruling
forms the subject matter of this appeal.
[17]
On
March 19, 2002, the Commission agreed to examine Mr. Nowoselsky’s human rights
complaint. A Commission investigation resulted in a report recommending that
Mr. Nowoselsky’s complaint be accepted, notwithstanding the fact that it had
been filed outside of the one year period provided for in the Canadian Human
Rights Act.
[18]
However,
the Commission investigator went on to recommend that the complaint be
dismissed, as the matters complained of had been addressed by a procedure
provided for under another Act of Parliament.
[19]
In
coming to this conclusion, the investigator considered whether there were
outstanding human rights issues raised by Mr. Nowoselsky that had not been
dealt with by the PSSRB. In an effort to fully address this question, the
investigator sought information from Mr. Nowoselsky with respect to:
- his position as to why the
Commission should proceed with an investigation into his complaint;
- details of the human rights
issues (ie. failure to accommodate his disability; and termination of his employment
because of his disability), which were not dealt with by the grievance process;
- details of any evidence
(witnesses or documentation), which would support his allegations that his
disability was not accommodated and that his employment was terminated because
of his disability, which had not been taken into consideration by the other
process.
[20]
Mr.
Nowoselsky elected not to provide the requested information to the Commission
investigator, asking instead that the Commission conduct a thorough independent
investigation of his complaint.
[21]
The
Commission investigator then recommended that the Commission dismiss Mr.
Nowoselsky’s human rights complaint pursuant to paragraph 41(1)(d) of the Canadian
Human Rights Act. In this regard, the investigator noted that the human
rights issues raised by the complaint had been dealt with by the PSSRB, and
that there were no outstanding human rights issues that had not been dealt
with.
[22]
The
investigator further observed that Mr. Nowoselsky had provided no reason why
the matter should be further investigated, and there was no public interest to
be served by conducting a further investigation.
[23]
This
recommendation was accepted by the Commission. By letter decision dated July
30, 2003, the Commission advised Mr. Nowoselsky that it had concluded that his
complaint would not be referred to the Canadian Human Rights Tribunal, as the
matters that he had complained of had already been addressed by the PSSRB, and
that, as a result, no further enquiry was warranted.
[24]
It
is this decision that underlies this application for judicial review.
The Procedural History
of this Application for Judicial Review
[25]
The
application for judicial review was commenced on August 28, 2003. Mr.
Nowoselsky’s Notice of Application named the Canadian Human Rights Commission
as the respondent. On September 16, 2003, the Commission wrote to the Court
advising that it was of the opinion that it had been improperly named as the
respondent in Mr. Nowoselsky’s Notice of Application.
[26]
Apart
from an exchange of correspondence regarding the identity of the proper
respondent, it appears that nothing happened in this case until a Notice of
Status Review was issued on March 30, 2004.
[27]
After
reviewing the parties’ submissions on the matter, on May 28, 2004, the prothonotary
allowed the application to continue as a specially managed proceeding, with the
caveat that Mr. Nowoselsky act promptly to identify the proper respondent and
commit to a procedure to rectify any error in the style of cause.
[28]
In
relation to the misnomer issue, the prothonotary stated that “counsel appears
to have been as ineffective as the Applicant in forging a solution to the
perceived problem.”
[29]
The
prothonotary also noted that Mr. Nowoselsky was in default of serving and
filing affidavits required under Rule 306. Consequently, she ordered that Mr.
Nowoselsky seek an extension of time in which to file his supporting
affidavits, and that he do so no later than June 30, 2004.
[30]
In
response to this order, on June 18, 2004, Mr. Nowoselsky brought a motion to
amend the style of cause, and for an extension of time to amend and serve his
Notice of Application. Mr. Nowoselsky also requested that he be granted an
extension of time to prepare, file and serve his affidavit and documentary
exhibits.
[31]
On
August 5, 2004, the prothonotary dismissed Mr. Nowoselsky’s application to
amend the style of cause and for an extension of time within which to file his
affidavits, noting that Mr. Nowoselsky had provided no explanation for his
failure to file his affidavits within the eight months following the filing of
his Notice of Application.
[32]
The
prothonotary further noted that Mr. Nowoselsky had not filed the proposed
affidavits, despite having had sufficient time to do so. Finally, the
prothonotary observed that having dismissed Mr. Nowoselsky’s application for an
extension of time, his application to amend the style of cause became moot.
[33]
The
prothonotary’s decision was ultimately overturned by the Federal Court of
Appeal: see Nowoselsky v. Canada (Canadian Human Rights
Commission), 2006 FCA 382. In so doing, the Federal Court of Appeal
held that:
With respect, we are of the view that the
prothonotary erred in principle. The issue of delay was disposed of when the
prothonotary decided to allow the matter to proceed as a specially managed
proceeding. The delay which the appellant was called upon to explain in
responding to the notice of status review was the delay in filing the
affidavits required by Rule 306 … Having accepted the appellant’s explanation,
and having put the matter into case management, the prothonotary erred in
requiring the latter to address a question she had already decided.
[…] As for the prothonotary’s second
ground for dismissing the appellant’s motion, it is apparent that the
prothonotary did not credit the appellant for having complied with her order
according to its terms. The appellant’s interpretation of what the order
required him to do was not unreasonable.
[34]
In
disposing of the matter, the Federal Court of Appeal ordered that Mr. Nowoselsky
serve and file affidavits and documentary evidence required by Rule 306 of the Federal
Courts Rules within 45 days of the order (or January 5, 2007), as well as
any jurisprudence that he sought to rely upon in order to enable the
Prothonotary “to assess whether there was relevant and admissible evidence in
support of the pending application for judicial review.”
[35]
In
an attempt to comply with the order of the Federal Court of Appeal, Mr.
Nowoselsky filed nine affidavits, a memorandum of fact and law and a bound
volume of documents with the Court of Queen’s Bench in Regina on January
4, 2007. Not only did Mr. Nowoselsky file his documents in the wrong court, he
evidently also miscalculated the time limits due to the Christmas holidays. As
a consequence, Mr. Nowoselsky did not comply with the deadline set by the order
of the Federal Court of Appeal.
[36]
Moreover,
the documents he filed did not conform to the requirements of the Federal
Courts Rules.
[37]
On
February 20, 2007, Justice Létourneau ruled that Mr. Nowoselsky should be
deemed to have served and filed his material on time and within the period
allowed by the Federal Court of Appeal’s decision. Justice Létourneau also
granted Mr. Nowoselsky an additional 30 days in which to conform to the
requirements of Rule 306.
[38]
At
some point in this chronology, Mr. Nowoselsky sought the assistance of
counsel. In an attempt to comply with the second order of the Federal Court of
Appeal, counsel from the firm of Balfour Moss LLP submitted a letter to the
Court in which it stated that nine affidavits and a letter from Dr. Rabuka were
part of the record before the Commission, and were therefore properly filed
with the Court pursuant to Rule 309 of the Federal Courts Rules.
[39]
In
addition, counsel stated that the affidavit of Fred Payton had been provided to
the Commission after it had rendered its decision, and was, therefore, properly
filed with the Court pursuant to Rule 306. Counsel further submitted that a
bound volume of documents, which were unsupported by an affidavit “may be
submitted later in these proceedings pursuant to Rule 309”. Finally, it was
submitted that the memorandum of fact and law was properly filed under Rule
309.
[40]
By
letter dated April 17, 2007, counsel for the Attorney General asked for
clarification of the status of Balfour Moss LLP. Counsel noted that while the
Federal Court of Appeal had observed that the firm had agreed to assist Mr.
Nowoselsky in putting his material in proper form, the firm had since made
representations on Mr. Nowoselsky’s behalf and had served and filed documents
on his behalf, without appearing as counsel of record.
[41]
As
counsel noted, this raised ethical issues with respect to counsel’s ability to
continue to deal directly with Mr. Nowoselsky. Counsel further observed that
in the circumstances, Rule 123 of the Federal Courts Rules would operate
to deem Balfour Moss LLP to be solicitors of record for Mr. Nowoselsky.
[42]
On
April 27, 2007, the prothonotary issued a seven page order dealing with the
status of Balfour Moss LLP, which was highly critical of the firm’s conduct.
After reviewing the situation in some detail, and noting the problems that
could result from the uncertain status of Balfour Moss LLP, the prothonotary
held that the Court would not consider the firm’s communications and
submissions unless the law firm confirmed that it was authorized by Mr.
Nowoselsky to act as its solicitor of record when it made communications to the
Court and to the Respondent’s counsel from February 20 to April 20, 2007.
[43]
Confirmation
of the firm’s authority to act on Mr. Nowoselsky’s behalf was subsequently
provided to the Court.
[44]
The
prothonotary then proceeded to re-determine Mr. Nowoselsky’s motion for an
extension of time within which to serve and file his affidavits under Rule 306,
as directed by the Federal Court of Appeal.
The Order Under Appeal
[45]
On
June 6, 2007, the prothonotary rendered her order in respect of Mr.
Nowoselsky’s motion for a re-determination of an extension of time within which
to serve and file his affidavits under Rule 306. This is the order under
appeal.
[46]
The
prothonotary observed that the decision of the Federal Court of Appeal required
her to rule solely on the relevance and admissibility of the affidavits and
evidence sought to be filed by Mr. Nowoselsky, which included the following
documents:
a) Affidavit
material including:
1. Affidavit
of Dennis Nowoselsky, sworn August 13, 2001
2. Affidavit
of Raymond Gosselin, sworn August 9, 2001
3. Affiadavit
of Velera L. Thorpe, sworn August 9, 2001
4. Affidavit
of Della Hunter, sworn August 9, 2001
5. Affidavit
of Alan Beasley, sworn August 10, 2001
6. Affidavit
of Lawrence F. Bell, sworn August 13, 2001
7. Affidavit
of Darlene McDougal, sworn March 27, 2002
8. Affidavit
of Audrey Johnson, sworn March 25, 2002
9. Affidavit
of Fred Payton, sworn December 13, 2004
(b) A letter from Dr. Rabuka
dated November 14, 1997
(c) A bound volume of
documents; and
(d) A memorandum of fact and
law on behalf of the Applicant.
[47]
The
prothonotary noted that Mr. Nowoselsky’s submissions did not address the
relevance of the documents in question, and were focussed “primarily on the
admissibility of these documents and on the contention that, with the exception
of the affidavit of Fred Payton dated December 13, 2004, the documents ‘are
currently filed under Rule 306 and can in any event be properly filed as part
of the Applicant’s record pursuant to Rule 309, because they were part of the
record before the Canadian Human Rights Commission’”.
[48]
In
this regard, the prothonotary observed that: “[u]nfortunately for the
Applicant, apart from the Applicant’s bald statement to that effect made in his
written submissions, there is no evidence before me that any of those
affidavits and documents formed part of the record before the CHRC.”
[49]
The
prothonotary noted that the documents transmitted to the Commission pursuant to
Mr. Nowoselsky’s Rule 317 request did not contain any of the affidavits in
question, nor did they contain any of the other documents sought to be filed by
Mr. Nowoselsky.
[49]
[50]
The
prothonotary also observed that Mr. Nowoselsky had previously asked that the
Commission forward its entire investigation file to the Court, and that the
Commission had objected to its disclosure, stating that the investigation file
had not been before the Commission when it rendered its decision, and that the
only documents before the Commission when it made the decision under review
were those that had already been provided to the Court in accordance with Rule
317. Mr. Nowoselsky did not seek directions or a ruling from the Court in
relation to the Commission’s objection to producing these documents.
[51]
As
a consequence, the prothonotary concluded that the documents were not
admissible under either Rule 306 or 309, as part of the record that was before
the Commission.
[52]
The
prothonotary then considered whether the documents were otherwise relevant or
admissible. In making this determination, the prothonotary examined the
affidavits and documents themselves, and also considered the Notice of
Application, and the grounds cited therein as to the errors allegedly committed
by the Commission.
[53]
The
prothonotary noted that the first six affidavits were originally filed with the
Court in connection with Mr. Nowoselsky’s application for judicial review of
the decision of the PSSRB. In this regard, the prothonotary stated:
I fail to see how affidavits filed in a
judicial review proceeding, which judicial review proceeding was dismissed,
could possibly be relevant or admissible in the context of a different judicial
review of a different decision by a different tribunal. The answer to that
question does not appear from any of the submissions of the Applicant, from a
careful review of the notice of application, or from the decision of the
Canadian Human Rights Commission itself. In fact, the entire enterprise smacks
of an impermissible attempt by Mr. Nowoselsky to collaterally attack the
decision of the adjudicator on his grievances and of this Court in dismissing
his judicial review of that decision.
[54]
With
respect to the affidavits of Darlene McDougal and Audrey Johnson, the
prothonotary observed that these affidavits related to events that occurred at
a staff meeting in the fall of 1995, where Mr. Nowoselsky allegedly raised the
issue of his disability with his area manager. In this regard, the
prothonotary stated:
The relevance of this evidence to the
legality or lawfulness of the CHRC's decision not to deal with the Applicant’s
complaints because they had been addressed by a grievance by the PSSRB is
nowhere explained by the material filed by the Applicant and remains a mystery
even on a most generous reading of the application for judicial review. Once
again, it appears that this evidence is directed to an attempt to review on the
merits the decision of the adjudicator on the grievance.
[55]
With
respect to the letter from Dr. Rabuka, the prothonotary noted that there was no
evidence that the document had been before the Commission, nor was it supported
by an affidavit. Moreover, insofar as the document’s relevance was concerned,
the prothonotary stated that “it speaks to the Applicant’s disability and his
ability to perform his duties. No relevance can be discerned to the subject
matter of this judicial review application”.
[56]
Insofar
as the volume of bound documents was concerned, the prothonotary found that
like the letter from Dr. Rabuka, the volume was inadmissible as it was not
introduced through an affidavit nor was it part of the tribunal record.
Moreover, she noted that with the exception of a few pages, the documents did
not relate to the decision process of the Commission and were therefore
irrelevant.
[57]
Finally,
the prothonotary addressed Mr. Nowoselsky’s memorandum of fact and law,
observing that it was not an affidavit or other documentary evidence which
would be admissible for filing under Rule 306, but rather was intended to be
filed in accordance with Rule 309. As a result, a ruling under Rule 306 was
not required.
[58]
The
prothonotary then went on to note that a review of the content of the
memorandum of fact and law confirmed her conclusions with respect to the
apparent purpose of the affidavits and documents, which was “a clear and
unequivocal attempt to review the merits of the adjudicator’s decision on [Mr.
Nowoselsky’s] grievances.
[59]
While
she was aware that she was not being called upon to rule on the appropriateness
of the proposed memorandum of fact and law, the prothonotary stated that if it
was Mr. Nowoselsky’s intention to file the memorandum under Rule 309 “It
behooves me as case-manager, to indicate at this early stage that the argument
presented in that memorandum is wholly irrelevant to a judicial review of the
CHRC decision, as it is framed in the notice of application and as is by law
permissible”.
[60]
Moreover,
given her ruling with respect to the admissibility of the affidavits and other
documentary evidence, the arguments were unsupported by evidence. The
prothonotary went on to recommend that if Mr. Nowoselsky were to proceed with
his judicial review of the Commission’s decision, he should consider a more
appropriate memorandum of fact and law.
[61]
Finally,
the prothonotary addressed the affidavit of Fred Payton. Mr. Payton was one of
Mr. Nowoselsky’s supervisors at CSC. The prothonotary described this document
as the only affidavit tendered in accordance with Rule 306. The prothonotary
noted that the affidavit dealt solely with the claim that Mr. Nowoselsky had
raised the issue of his physical disability with Mr. Payton, and that Mr.
Payton had in turn raised it with his supervisor. Consequently, the prothonotary
held that the affidavit was irrelevant to the application to review the
Commission’s decision.
[62]
Having
determined that none of the affidavits submitted by Mr. Nowoselsky pursuant to
the judgment of the Federal Court of Appeal were relevant, and that none of the
documents submitted by him were either admissible or relevant, it followed that
Mr. Nowoselsky’s motion for an extension of time in which to file the material
should be dismissed.
[63]
The
prothonotary then stated that as a result of her ruling, none of the documents
would form part of the record on the application for judicial review. The only
document that could be included in Mr. Nowoselsky’s application record was the
certified tribunal record. The prothonotary further ruled that the respondent
would have no right to serve and file affidavits and documentary exhibits as of
right, pursuant to Rule 307.
Standard of Review
[64]
Mr.
Nowoselsky’s bias argument raises a question of procedural fairness. The issue
of the standard of review does not arise in relation to such questions – it is
for the Court to determine whether the individual received a fair hearing or
not, having regard to all of the relevant circumstances: Sketchley v. Canada
(Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[65]
Insofar
as the standard of review with respect to the merits of the prothonotary’s
decision is concerned, where a discretionary order of a prothonotary is vital
to the final issue in a case, the decision should be reviewed on a de novo
basis: see Merck & Co. Inc. v. Apotex, [2003] F.C.J. No. 1925, 2003
FCA 488 at ¶18-19.
[66]
However,
where the decision under review is not vital to the final issue in the case, it
ought not to be disturbed on appeal unless the order is clearly wrong, in the
sense that the exercise of discretion by the prothonotary was based upon a
wrong principle or upon a misapprehension of the facts: Merck, at ¶19
[67]
Mr.
Nowoselsky submits that the issues before the prothonotary were clearly vital to
the final issue of the case, as the decision fundamentally affects his ability
to present his case in this proceeding. As a consequence, Mr. Nowoselsky says
that the matter should be reviewed on a de novo basis.
[68]
The
first question, then, is whether the prothonotary’s decision was vital to the
final issue in this case. In this regard, the decision in Merck makes
it clear that the reference to a "question vital to the final issue of the
case" refers to the subject matter of an order issued by a prothonotary,
and not to the effect of such an order.
[69]
As
to what sort of questions will be viewed as vital to the final issues in a
case, Merck teaches that the test is a stringent one. Examples of vital
issues were cited by Justice Reed in James River Corp. of Virginia v.
Hallmark Cards, Inc., (1997), 72 C.P.R. (3d) 157 (F.C.T.D.) where she
stated that:
Questions that are vital to the final
issues of a case are, for example, the entering of default judgment, a decision
not to allow an amendment to pleadings, a decision to add additional defendants
and thereby potentially reduce the liability of the existing defendant, or a
decision on a motion for dismissal for want of prosecution. [at page 160,
footnotes omitted]
[70]
As
my colleague Justice Blanchard noted in Association des crabiers acadiens
inc. v. Canada (Attorney General), [2005] F.C.J. No. 1591, 2005 FC 1309 (at
¶25), an order striking out an affidavit is not vital to the final issue in a
case, as the order does not to affect the party’s substantive rights as the
application for judicial review could still proceed.
[71]
In
a similar vein, an order refusing to allow a party an extension of time in
which to file affidavit material is not vital to the final issue in a case, and
thus attracts the more deferential standard of review.
[72]
As
a consequence, I should not interfere with the prothonotary’s decision unless I
am satisfied that the order is clearly wrong, in the sense that it was based
upon a wrong principle or upon a misapprehension of the facts
The Bias Issue
[73]
The
first issue that must be addressed is Mr. Nowoselsky’s assertion that he did
not receive a fair hearing before the prothonotary as she was biased against
him, or that, at the very least, her conduct throughout this matter - and in
related litigation - was such as to create a reasonable apprehension of bias on
the part of the prothonotary.
[74]
In
this regard, Mr. Nowoselsky relies on the following circumstances in support of
his allegation of actual or apprehended bias on the part of the prothonotary:
1. It
was the prothonotary whose decision is in issue in this proceeding who had
dismissed his application for judicial review relating to the PSSRB decision
for delay, when Mr. Nowoselsky’s then counsel had only been two weeks late in
meeting a filing deadline.
2. The
prothonotary’s original order of August 5, 2004 dismissing Mr. Nowoselsky’s
motion for an extension of time demonstrated a negative predisposition with
respect to the merits of Mr. Nowoselsky’s application for judicial review.
3. The
Federal Court of Appeal determined that in making her August 5, 2004 order, the
prothonotary erred in principle. The prothonotary was aware of this ruling,
and the fact that she had been criticized by the Federal Court of Appeal, which
would arguably lead her to harbour an animus towards Mr. Nowoselsky.
4. The
prothonotary’s April 27, 2007 order regarding the status of Balfour Moss LLP
includes a number of gratuitous and derogatory comments about the firm, and is
“an astonishing exercise that conjures up blameworthy conduct on the part of
the firm”. This, after the prothonotary had already criticized Mr.
Nowoselsky’s earlier counsel in her May 28, 2004 ruling.
5. In
making her June 6, 2007 order, which is the decision under appeal, the
prothonotary was clearly frustrated by the delays with the progress of this
matter, failing to appreciate that the delays were largely the result of her
own error in her August 5, 2004 order.
6. In
her June 6, 2007 order, the prothonotary, on her own initiative, made a
pre-emptive ruling with respect to the contents of Mr. Nowoselsky’s application
record, when that issue was not before her, and without allowing him to make
submissions in this regard.
7. The
prothonotary further acted unfairly in examining the contents of Mr. Nowoselsky’s
memorandum of fact and law in the course of her analysis, when the memorandum
of fact and law had been “filed prematurely”, and was not the subject of the
motion.
8. Throughout
her dealings with Mr. Nowoselsky, the prothonotary used harsh and hyperbolic
language which was both undeserved and highly critical of Mr. Nowoselsky and
his counsel.
9. The
prothonotary never gave directions to Mr. Nowoselsky as to what procedural
steps he had to follow to allow his application for judicial review to proceed
properly.
[75]
The
test for determining whether actual bias or a reasonable apprehension of bias
exists in relation to a particular decision-maker is well known: that is, the
question for the Court is what an informed person, viewing the matter
realistically and practically - and having thought the matter through – would
conclude. That is, would he or she think it more likely than not that the
decision-maker, either consciously or unconsciously, would not decide fairly:
see Committee for Justice and Liberty v. Canada (National
Energy Board), [1978] 1 S.C.R. 369, at p. 394.
[76]
An
allegation of bias, especially an allegation of actual, as opposed to
apprehended, bias, is a serious allegation. Indeed, it challenges the very
integrity of the adjudicator whose decision is in issue. As a consequence, the
threshold for establishing bias is high: R. v. S. (R.D.), [1997] 3
S.C.R. 484, at ¶ 113.
[77]
With
these principles in mind, I turn now to consider Mr. Nowoselsky’s arguments.
At the outset, I should observe that the only decision directly before me on
this appeal is the prothonotary’s June 6, 2007 order denying Mr. Nowoselsky an
extension of time in which to file affidavits and documentary material in
support of his application for judicial review. I am not sitting in appeal of
any of the prothonotary’s earlier rulings made in the course of this or related
proceedings, and it is not my role to second-guess any of those rulings.
[78]
Thus,
the question before me is not whether these earlier rulings were made in error,
but rather, whether the cumulative effect of all of Mr. Nowoselsky’s dealings
with the prothonotary over the course of this and related proceedings
demonstrates actual or apprehended bias on her part, such that he was denied a
fair hearing on the motion in issue in this appeal.
[79]
Having
considered all of the grounds advanced to support his claim of bias, both
individually and cumulatively, and having carefully considered Mr. Nowoselsky’s
submissions, I have concluded that he has not established either actual bias or
a reasonable apprehension of bias on the part of the prothonotary.
[80]
The
fact that a decision-maker may have ruled against a party in previous
proceedings does not, by itself, give rise to a reasonable apprehension of
bias, nor is it evidence of actual bias.
[81]
Similarly,
I am not persuaded that the fact that the prothonotary’s original order of
August 5, 2004 dismissing Mr. Nowoselsky’s motion for an extension of time was
overturned by the Federal Court of Appeal would reasonably be perceived to
create a bias on her part.
[82]
Decision-makers
strive to do the best they can, but errors do occur, which is why we have an
appellate process. Nevertheless, absent compelling evidence to the contrary,
one expects that both the oath of office and the professionalism of the
decision-maker in question would lead the individual to continue to deal with
parties in a fair and impartial manner, even where the decision-maker is found
to have erred in earlier proceedings.
[83]
I
cannot agree that the prothonotary acted unfairly in examining the contents of
Mr. Nowoselsky’s memorandum of fact and law in the course of her analysis in
the decision under appeal, when the memorandum had, according to Mr. Nowoselsky
“been filed prematurely”, and was not the subject of the motion.
[84]
Having
reviewed the material that Mr. Nowoselsky has filed in the course of his
efforts to get the material that he wants before the Court on this application
for judicial review, it is difficult to discern what the issues are on the
underlying application, and precisely what his arguments are in this regard.
In these circumstances, I see nothing improper in the prothonotary actually
reading the memorandum of fact and law provided to her by Mr. Nowoselsky, in
what was clearly an effort on the part of the prothonotary to gain a better
understanding of the basis for his attack on the decision of the Commission.
[85]
I
also do not agree that in making the decision under appeal, the prothonotary
manifested frustration with the delays in the progress of this matter, while
failing to appreciate that the delays were largely the result of her own
error. The decision under review reflects a clear desire on the part of the
prothonotary to have this case proceed quickly to a hearing. Given that
judicial review is intended to be a summary procedure, this was quite properly
part of her role as case-manager.
[86]
I
am further not persuaded that the prothonotary’s June 6, 2007 order represents
“a pre-emptive ruling with respect to the contents of Mr. Nowoselsky’s
application record”. Having denied Mr. Nowoselsky an extension of time in
which to file evidence in support of his application for judicial review, it
necessarily follows that he would only be able to rely on the certified
tribunal record and his memorandum of fact and law in support of his
application.
[87]
I
do agree with Mr. Nowoselsky that the prothonotary has used some very blunt
language in the various rulings that she has rendered in this matter, and that
her choice of language was at times unfortunate, particularly in the April 27,
2007 ruling regarding the status and conduct of Balfour Moss LLP.
[88]
That
said, blunt language by itself is not evidence of actual bias, nor does it give
rise to a reasonable apprehension of bias: see Ahani v. Canada, (2000),
184 F.T.R. 320 (F.C.A.).
[89]
Having
reviewed the totality of the record before me, and viewing the language used by
the prothonotary in the context of the history of this matter, I am not
persuaded that she has manifested actual bias in this matter. Nor am I
persuaded that a reasonable apprehension of bias exists with respect to the
conduct of the prothonotary.
[90]
This
then takes me to consider the appeal as it relates to the merits of the
prothonotary’s decision.
Did the Prothonotary Err
in Denying the Extension of Time?
[91]
As
a preliminary matter, I must address the fresh evidence that Mr. Nowoselsky
seeks to put before the Court on this appeal.
[92]
In
the decision under appeal, the prothonotary observed that there was no evidence
before her that some of the documentation that Mr. Nowoselsky sought to put
before the Court was actually before the Canadian Human Rights Commission when
it made the decision under review.
[93]
In
support of his appeal, Mr. Nowoselsky has provided an affidavit in which he
deposes that the documentation in question was provided to the Commission
investigator in the course of the investigation.
[94]
It
is well established in the jurisprudence of this Court that, subject to limited
exceptions that do not apply here, new evidence should not be admitted on an appeal
from a decision of a prothonotary. Rather, the Court should proceed on the
basis of the record that was before the prothonotary at the time that the
decision was made: see, for example, Advanced Emissions Technologies Ltd.
v. Dufort Testing Services, [2006] F.C.J. No. 1012, 2006 FC 794, at paras.
2 and 3, and Odessa Partnership v. Canada (Department
of National Revenue), [2003] F.C.J. 1814, 2003 FC 1420.
[95]
As
a consequence, I do not intend to consider the new evidence on this appeal,
other than to simply observe that even if Mr. Nowoselsky did in fact provide
the documents in question to the Commission investigator, this does not mean
that the documents were before the Commissioners themselves when they made the
decision under review. Indeed, the fact that the documents in question were
not included in the certified tribunal record suggests that they were not.
[96]
With
respect to the merits of the prothonotary’s decision, in deciding whether to
grant Mr. Nowoselsky an extension of time in which to file his affidavit
material the prothonotary properly identified the issue before her as whether
the proposed evidence was admissible and relevant to the issues on the
application for judicial review.
[97]
With
respect to the letter from Dr. Rabuka and the volume of bound documents, the
prothonotary quite properly noted this material was not supported by an
affidavit. As such it was not admissible. Thus, the prothonotary did not err
in refusing an extension of time to file this material.
[98]
With
respect to the affidavit material, six of the affidavits (Nowoselsky, Gosselin,
Thorpe, Hunter, Beasley and Bell) were evidently originally filed with the
Court in connection with Mr. Nowoselsky’s application for judicial review of
the decision of the PSSRB. Given this, it is perhaps not surprising that the
affidavits make no mention of the Canadian Human Rights Commission
investigation or decision. Rather, the focus of the affidavits is on the
merits of the PSSRB decision.
[99]
For
example, Mr. Nowoselsky’s affidavit discusses at great length what transpired
at the PSSRB hearing, and takes issue with the weight ascribed by the
adjudicator to various pieces of evidence in that case.
[100] The other
five affidavits are from individuals who testified at the PSSRB hearings.
These affidavits refer to the deponents’ evidence before the Board. In some
cases, the deponents take issue with the weight ascribed to their evidence. In
other cases, the affidavits point to alleged errors in the PSSRB decision.
[101] The
prothonotary stated that she could not see how affidavits filed in one judicial
review proceeding could possibly be relevant or admissible in the context of a
different judicial review of a different decision by a different tribunal. The
fact is that the Commission’s decision dismissing Mr. Nowoselsky’s human rights
complaint was based upon the Commission’s finding that his human rights issues
had been dealt with by the PSSRB. As a consequence, there is of necessity some
overlap between the two cases, and affidavits relating to the PSSRB process
could at least theoretically be relevant on a judicial review challenging the
Commission’s decision.
[102] That said, it
is hard to see how the specific affidavits in issue here relate to the issues
raised by Mr. Nowoselsky on his application for judicial review.
[103] Mr.
Nowoselsky’s Notice of Application for Judicial Review cites the following as
the grounds for his application:
(5) The Commission failed […] to
properly apply Section 44 of the Canadian Human Rights Act.
(6) The Human Rights Commission
failed to properly […] accord the Canadian Human Rights Act of
paramountcy over the PSSRB.
(7) The Commission failed to
adhere to mandatory provisions of the Canadian Human Rights Act Section
44.
(8) The Commission acted without
jurisdiction, acted beyond their jurisdiction or refused to exercise their
jurisdiction.
(9) The Commission failed to
observe the principles of natural justice, procedural fairness or the
procedure that the Commission was required by law and act to observe.
[104] The six
affidavits under consideration really do not have any bearing on any of these
issues. Rather, as the prothonotary observed, they really amount to a
collateral attack on the decision of the adjudicator.
[105] It must be
kept in mind that the issue at this point is not whether the decision of the
PSSRB was flawed. As a result of Mr. Nowoselsky’s failure to pursue his
application for judicial review of that decision in a timely manner, the PSSRB
is now final. Rather the central issue on this application is whether the Canadian
Human Rights Commission erred in finding that Mr. Nowoselsky’s human rights
issues had been dealt with by the PSSRB.
[106] It is true
that evidence provided to a human rights investigator can be admissible on
judicial review where there is an allegation impugning the accuracy or
completeness of the investigation report, or the thoroughness of the
investigation, even if that evidence was not before the Canadian Human Rights
Commission when it made its decision: see, for example, Pathak v. Canada
(Canadian Human Rights Commission), [1995] 2 F.C. 455 (F.C.A.).
[107] It is also
true that such an error could amount to a breach of procedural fairness, and
that Mr. Nowoselsky’s Notice of Application for Judicial Review alleges that
the Canadian Human Rights Commission failed to observe the principles of
procedural fairness in this case.
[108] That said,
having reviewed the submissions made by Mr. Nowoselsky to the prothonotary, it
is clear that no issue as to the fairness or thoroughness of the investigation
was raised before her. In fact, in reply submissions, counsel for Mr.
Nowoselsky described the investigation as “extensive”. Moreover, there was no
evidence before the prothonotary that the affidavits in question had even been
provided to the investigator. As such, the prothonotary cannot be faulted for
failing to consider this issue.
[109] As a
consequence, I am not persuaded that the prothonotary based her decision on a
wrong principle or a misapprehension of the facts in finding that these
affidavits were not relevant to the issues on this application for judicial
review, as those issues have been identified by Mr. Nowoselsky.
[110] The McDougall
and Johnson affidavits were not filed in relation to the application for
judicial review of the PSSRB decision, but were allegedly provided to the
Commission investigator, although there was no evidence of this before the
prothonotary. Each of the deponents states that Mr. Nowoselsky raised the
issue of his disability with managerial personnel within the Correctional
Service of Canada. The relevance of this evidence to the issues raised by Mr.
Nowoselsky in his Notice of Application is not apparent, and once again, it
appears that the evidence is really directed to collateral attack of the
decision of the PSSRB adjudicator.
[111] Unlike the
other affidavits sought to be relied on, the Payton affidavit was not provided
to the Commission during the course of the investigation. Rather, Mr.
Nowoselsky seeks to file this affidavit pursuant to the provisions of Rule
306.
[112] Like the
McDougall and Johnson affidavits, Mr. Payton’s affidavit states that Mr.
Nowoselsky raised the issue of his disability with managerial personnel within
the Correctional Service of Canada.
[113] Although Mr.
Nowoselsky endeavoured to characterize this evidence as going to a
jurisdictional question, the evidence really speaks to the alleged failure of
CSC to accommodate Mr. Nowoselsky’s disability. For the reasons given in
relation to the other affidavit material, I am not persuaded that this evidence
is relevant to the issues on this application for judicial review
[114] As a
consequence, I am not persuaded that the prothonotary erred in dismissing Mr.
Nowoselsky’s request for an extension of time to file affidavits and other
documentary material in support of his application for judicial review.
Conclusion
[115] For these
reasons, this appeal is dismissed.
[116] The parties
have consented to an order staying the scheduling order made by the
prothonotary in her June 6, 2007 decision until such time as this appeal was
finally disposed of. The matter is remitted to the case managers to fix a new
schedule for the remaining steps in this matter.
[117] I will leave
the matter of costs to be dealt with by the judge dealing with the merits of
the application.
ORDER
THIS COURT
ORDERS that:
1. The appeal is
dismissed;
2. The
file is referred back to the case-managers to fix a new schedule for the
remaining steps in this matter; and
3. Costs shall be in
the cause.
“Anne
Mactavish”
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