Hasan v. Canada (Attorney General), docket T-2159-96

     Date: 19990917

     Docket: T-2159-96

B E T W E E N :

     KHALIL HASAN

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

HUGESSEN J.

     [1]      This application for judicial review seeks two different forms of relief which, although closely related, engage slightly different principles for the reviewing Court.

     [2]      In the first place, the application seeks to review and set aside a decision rendered by the chairperson of an Appeal Board appointed pursuant to section 21 of the Public Service Employment Act¹. By that decision, the chairperson refused to disqualify himself and rejected the applicant's allegations of reasonable apprehension of bias. As I understand the law, that part of the application requires me to review the chairperson's decision for errors of law or jurisdiction on a standard of correctness.

     [3]      The second branch of the application seeks an order in the nature of prohibition to prevent the chairperson from continuing to preside at the hearing of the applicant's section 21 appeal. The ground alleged is again reasonable apprehension of bias. In my understanding, this aspect of the application requires me to weigh the evidence adduced by the applicant and to determine, as a matter of fact, whether it establishes on a balance of probabilities that there is a reasonable apprehesion that the chairperson is biased.

     [4]      On both aspects of the application it is necessary to bear in mind the test established by law for a reasonable apprehension of bias, namely that of a well-informed person, viewing the matter realistically and practically and having thought the matter through.² The chairperson and both parties to this application are in agreement as to the applicability of that test.

     [5]      As I understand the applicant's submissions on the first aspect of the application, that is the attack on the legality of the chairperson's decision, it is not that the chairperson applied the wrong test in law but rather that he should not have applied any test at all. Since the chairperson's own conduct was impugned by the applicant's application to disqualify him, the applicant seems to think that the chairperson was thereby ipso facto disqualified from hearing that application. In this respect, he is clearly wrong. Every tribunal has the right and frequently the duty to hear any application which puts in issue the tribunal's own jurisdiction to undertake an inquiry. In fact, the applicant's contention on this point flies in the face of a decision of Simpson J. of this Court made in the applicant's own case³ which is now res judicata between the parties. Indeed, the applicant's submission to the effect that all that Simpson J. allowed the chairperson to do was to "consider" the quesiton of his own disqualification without hearing evidence and argument on the matter is a manifest absurdity: if the chairperson had ventured to do what the applicant now says Simpson J.'s order required him to do, i.e. consider the question of his own disqualification while refusing to hear evidence and argument on the question, he would have been in clear breach of the rules of natural justice.

     [6]      The great bulk of the applicant's submissions bear on the second aspect of the application, namely the request that the Court find that the chairperson's actions were such as to give rise to a reasonable apprehension of bias.

     [7]      One of those actions which was most heavily relied upon by the applicant was the chairperson's refusal to order disclosure of certain test materials which were in the possession of the Department. It is now clear that that decision by the chairperson was wrong in law and it was, in due course, overturned by a decision of this Court which was later confirmed by the Court of Appeal⁴. That fact, however, does not lead, as the applicant seems to think, to the necessary conclusion that the chairperson was biased. On the contrary, while the rendering of a wrong decision against the interests of a particular litigant may be the result of bias against that litigant, it is not evidence of it. Judges and quasi-judicial officers always render decisions which are adverse to the interests of one or other of the parties before them; some of those decisions are later found to have been mistaken or wrong; the person rendering such a wrong decision is not thereby disqualified by reason of bias.

     [8]      Apart from the result of the decision rendered by him, there is nothing that I can see in the circumstances of the chairperson's decision on the question of disclosure which can properly give rise to a reasonable apprehension of bias.

     [9]      Another large part of the applicant's case is based upon allegations that the chairperson, in speaking to the applicant, has used language which gives rise to a reasonable apprehension of bias. The chairperson is said to have addressed the applicant "in a degrading manner", to have spoken to him in a tone which was "offensive and unprofessional", to have given him a "tongue lashing", to have spoken "rudely" and to have used "foul language". With one exception, these are all characterizations by the applicant of his personal impression of the chairperson's language, but without any detail as to the actual words alleged to have been spoken or the context in which they are said to have occurred. In fact, the only evidence of use of particular words which could be described as foul, is of a rather crude scatalogical remark addressed by the applicant himself to the chairperson. The only other direct quote of which there is evidence is of the chairperson telling the applicant that "he should not act like a child and should grow up". This latter remark, while certainly neither complimentary nor particularly judicious, is not one which taken, in isolation as it is, can serve as the basis for a reasonable apprehension of bias.

     [10]      The applicant makes a number of other complaints about the chairperson's manner of dealing with the applicant and his case. He says that the chairperson did not give the applicant sufficient time to prepare; that he, on the other hand, took far too long to deliver his decision; that he refused to make a copy of a decision which he rendered in another case available to the applicant as soon as it was rendered; and that he received communications from the Department or its representative in the absence of the applicant. There is simply no substance to any of these allegations. By any measure, the time afforded to the applicant was more than adequate. The delay in rendering the decision, while unduly long, can in no sense be construed as an indication of bias. The policy of not releasing the decision in another case to the public, of whom the applicant was one, until such time as the Board was certain that the parties to that case had received it is a sound one and was adequately explained to the applicant. Finally, the evidence makes it clear that any communication between the Department and the chairperson in the applicant's absence took place in the context of a session of the Appeal Board to which the applicant was invited but which, for reasons of his own, he chose not to attend; the applicant was fully informed of the content of such communication.⁵

     [11]      As a final ground of attack, the applicant makes a number of wholly unsubstantiated allegations of a conspiracy between the Department of National Revenue, the Department of Justice and the Public Service Commission. The object of such conspiracy would apparently be to demean and disgrace the applicant to deprive him of his livelyhood and to take food from the mouths of his children. On the evidence, that conspiracy exists only in the mind of the applicant.

     [12]      The burden of establishing, on a balance of probabilities, facts which would give rise on the part of an informed and detached observer to a reasonable apprehension of bias falls squarely upon the applicant's shoulders. That burden has simply not been discharged.

     [13]      For the foregoing reasons, the application will be dismissed with costs.

     "James K. Hugessen"

     Judge

¹      R.S.C. 1985, c. P-33

²      Comittee for Justice and Liberty v. Canada (Natural Energy Board)(1976), [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at 394; 68 D.L.R. (3d) 716; 9 N.R. 115

³      Hasan v. A.G. Canada (3 October 1995), T-1988-95, (FCTD) [unreported]

⁴      Hasan v. Canada (Attorney General) (1996), 206 N.R. 175 (F.C.A.)

⁵      See the cross-examination of Kathleen Plouffe by the applicant on December 17, 1996 (Respondent's Application Record at Tab 2) particularly questions 142-144.