[1] This is an appeal from a decision of the Trial Division (as it then was) in a judicial review of a decision of an Adjudicator under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). The issue is whether the Adjudicator denied the appellant procedural fairness. The learned Trial Division Judge found no breach of procedural fairness and dismissed the judicial review.

FACTS

[2] The facts that are relevant to the issue of procedural fairness are the following. The appellant, who was working as a correctional officer at the Saskatchewan Penitentiary, was the subject of a complaint of one incident of sexual harassment by a female colleague. The appellant's employment was terminated as a result. The appellant grieved the termination and, eventually, the matter was the subject of an adjudication under the PSSRA. The hearing before the Adjudicator took place on July 10 to 12, 2001.

[3] The case was one in which credibility was very much an issue, the complainant alleging sexual harassment and the appellant denying it. In the course of the proceedings before the Adjudicator, there was evidence of a separate incident, immediately before the alleged sexual harassment, involving a prisoner at the Federally Sentenced Women's Unit (FSWU) of the Saskatchewan Penitentiary where both the appellant and complainant were working at the time.

[4] The appellant had testified that everyone at the FSWU who was working in the Unit at the time would have attended the prisoner incident to help deal with it. The appellant said the complainant was not at the FSWU at the time and did not attend. He said she must have left the FSWU, otherwise she would have known about the incident and attended. The alleged sexual harassment occurred within a half hour after the incident with the prisoner. There was, therefore, an issue of the appellant's credibility with respect to his evidence that everyone at the FSWU who was present would have attended the prisoner incident.

[5] After the evidence was closed, and during argument, the Adjudicator raised the issue of why another employee, L. Mardell, who was on the work list for that day, did not attend the prisoner incident. It appears the question may have been asked to test the appellant's evidence that everyone working at the FSWU that day would have attended the prisoner incident.

[6] Because the issue appeared to be of concern to the Adjudicator, counsel for the appellant asked to reopen the case to call evidence on whether L. Mardell was working at the FSWU that day. The Adjudicator adjourned the proceedings to allow counsel to obtain the answer to the question. After two hours of checking, counsel for the respondent was still unable to confirm whether L. Mardell was working at the FSWU that day. Counsel returned and advised the Adjudicator that the point could not be confirmed. It was agreed that the Adjudicator would adjourn the proceedings and await confirmation as to whether L. Mardell was working that day. It was agreed that counsel for the respondent would obtain the information and forward it to counsel for the appellant who would submit it to the Adjudicator. There were no time limits placed on the process.

[7] After some communication between counsel, on August 17, 2001, counsel for the respondent wrote to counsel for the appellant advising that L. Mardell was working in another part of the Saskatchewan Penitentiary and was not scheduled to work in the FSWU on the relevant date. Counsel for the appellant was to forward this information to the Adjudicator.

[8] However, on the same date, August 17, 2001, the Adjudicator issued his decision. It is agreed he did so without having received any evidence respecting L. Mardell. There was no reference in the Adjudicator's decision to the issue he had raised.

ANALYSIS

[9] The respondent says the issue is irrelevant to the main question in this case, that of whether the appellant sexually harassed the complainant, that it could have had no impact on the outcome of the adjudication and that the learned Trial Division Judge was correct to dismiss the appellant's judicial review.

[10] We are unable to come to the same conclusion. The question of L. Mardell was raised by the adjudicator himself. He agreed to adjourn to allow counsel to provide evidence on whether she was working at the FSWU at the relevant time. In light of the procedure adopted by the Adjudicator, we are unable to be certain to what extent this evidence might have influenced the Adjudicator's decision had he awaited its receipt.

[11] It was open to the Adjudicator to advise the parties that he considered the issue of L. Mardell's whereabouts unnecessary and, had he done so, we do not think he would have needed to await receipt of that information from the parties. However, he did not do so and we are left to speculate as to why he issued his decision without waiting for that information.

[12] A finding by this Court that the evidence related to L. Mardell would not have affected the result of the adjudication would be a finding based on speculation. In these circumstances, the principle enunciated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, is pertinent - that a denial of a right to a fair hearing always renders a decision invalid, whether or not it appears to a reviewing court that a fair hearing would have likely resulted in a different decision. At page 661, Le Dain J. stated:

... I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

This approach was reiterated by Lamer C.J.C. in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471 at 493, where he stated:

Secondly, and more fundamentally, the rules of natural justice have enshrined certain guarantees regarding procedure, and it is the denial of those procedural guarantees which justifies the courts in intervening. The application of these rules should thus not depend on speculation as to what the decision on the merits would have been had the rights of the parties not been denied.

[13] We acknowledge that a court may exercise its discretion not to grant a remedy for a breach of procedural fairness where the result is inevitable (See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at 228-29). That is not the case here. In this case, the adjudication turns on credibility and we cannot say the result is inevitable one way or the other.

[14] We acknowledge that the duty of fairness is not absolute and that it will vary with the circumstances (Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at 682-83). However, the variability of the duty of fairness is not the issue here. In these circumstances, the Adjudicator established a procedure in respect of the receipt of certain evidence and then departed from that procedure without notice. The appellant was entitled to expect that the Adjudicator would not make his decision without the evidence that he, himself, had said was of interest and which he gave the parties an opportunity to produce. In this respect, we think the observation of L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 26, is relevant:

This doctrine, as applied in Canada, is based upon the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them [the tribunal] to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.

[15] Nor is this a case of a tribunal considering and rejecting evidence, in which circumstance, that decision might be considered to be within the scope of the tribunal's discretion to reject evidence (Université du Québec at 491). We simply do not know why the Adjudicator decided the adjudication without waiting for receipt of the evidence or whether the evidence would have had any impact on his decision.

[16] The appeal will therefore be allowed, the decision of the Trial Division set aside, and the Adjudicator's decision quashed.

[17] The appellant submits that the matter should be redetermined de novo before a different Adjudicator. The respondent says the matter may be remitted to the same Adjudicator to redetermine the matter taking into account the L. Mardell evidence and submissions in respect of it made by counsel.

[18] We agree with the respondent that, in the circumstances of this case, the matter should be remitted to the same Adjudicator. At paragraph 12:6320 of Donald J.M. Brown & John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback, 2003), the learned authors state:

When the tribunal reconsiders a matter either on its own motion or following judicial review it must, of course, comply with the duty of fairness. ... And unless a court orders otherwise, while the same persons who decided the matter on the first occasion may normally also rehear it, they should not do so where they were earlier disqualified for bias, or if for any reason, there is a reasonable apprehension that the original decision-maker is not likely to determine the matter objectively.

There is no suggestion here of bias. Nor is there any reasonable apprehension of bias. The decision-maker in this case was the Vice-Chairman of the Public Service Staff Relations Board. There is a presumption of integrity and impartiality in such a decision-maker and in the absence of some evidence to the contrary, we can see no reason why the matter may not be redetermined by him (See I.L.W.U. v. British Columbia Maritime Employers Association (1987), 81 N.R. 237 at paragraph 6 (F.C.A.); Deigan v. Canada (Industry) (2000), 258 N.R. 103 at paragraph 3 (F.C.A.)).

[19] It was the Adjudicator who raised the issue that gave rise to the obtaining of the evidence in question and he is in the best position, upon considering it, to determine its effect on his determination. We would, therefore, remit the matter to the same adjudicator for redetermination. The Adjudicator should take into account the information in the August 17, 2001, letter of counsel for the respondent respecting L. Mardell and provide the parties with an opportunity to make submissions as to its effect on the outcome of the adjudication. In all other respects, the Adjudicator is free to determine his own procedure.

[20] The appellant will be entitled to costs here and in the Trial Division.

"Marshall Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-633-02

STYLE OF CAUSE: GRANT GALE

APPELLANT

TREASURY BOARD

(Solicitor General Canada Correctional Service)

RESPONDENT

PLACE OF HEARING: Saskatoon, Saskatchewan

DATE OF HEARING: January 12, 2004

REASONS FOR JUDGMENT

OF THE COURT: STRAYER, ROTHSTEIN, SHARLOW JJ.A.

DELIVERED FROM THE

BENCH BY: ROTHSTEIN J.A.

APPEARANCES:

Martel D. Popescul, Q.C.

FOR THE APPELLANT

Richard E. Fader

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Sanderson Balicki Popescul

Prince Albert, Saskatchewan

FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Gale v. Canada (Solicitor General), 2004 FCA 13

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2004 FCA 13