Date: 20040609
Docket: T-294-03
Citation: 2004 FC 831
Ottawa, Ontario, this 9th day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
WATERHEN LAKE FIRST NATION
Applicant
- and -
MICHELLE ERNEST, LEONARD VINCENT,
DONALD MARTELL, JOANNE MARTELL and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of an adjudicator, Frank P. Moorgen (the "adjudicator"), dated March 28, 2003, wherein the adjudicator found, pursuant to section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2, that the applicant dismissed the individually-named respondents without just cause.
[2] The applicant seeks a writ of certiorari quashing the decision of the adjudicator and costs of this application.
Background
[3] The individually named respondents, Michelle Ernest, Leonard Vincent, Donald Martell, and Joanne Martell, (the "respondents") were employed by the applicant, the Waterhen Lake First Nation (the "applicant"). Although named as a party, the respondent Attorney General of Canada took no position regarding this application and did not file a respondent's record or appear at the hearing.
[4] On October 15, 2001, and continuing for approximately nine days, a protest and blockade of the applicant's Band Offices took place. Various members of the Band took part, including employees of the saw mill.
[5] The applicant concluded that 25 employees of the Band, including the respondents, took part in the protest and blockade. The applicant concluded that the respondents were the ring leaders of the protest and blockade. On November 2, 2001, the applicant terminated the respondents' employment because of their alleged participation in the protest and blockade. Among the other employees that had been identified as having participated in the protest and blockade, 12 were reprimanded and two were terminated.
[6] The respondents registered a complaint regarding their dismissal with Human Resources Development Canada in December, 2001. In June 2002, the adjudicator was appointed to hear and determine the respondents' complaints.
[7] The initial sitting of the adjudication took place from August 19 to 22, 2002. By the end of the hearing day on August 22, 2002, the applicant had concluded its case and evidence had been taken from two of the respondents' witnesses.
[8] At some point during the hearing on August 22, 2002, applicant's counsel stated that he was relocating to Manitoba and would be unavailable to complete the hearing. The applicant had not been informed of this by counsel before.
[9] By the end of August, the applicant had retained new counsel. However, new counsel had difficulty contacting the applicant's previous counsel, and was unable to obtain a complete set of notes as to what happened at the hearing up until that point.
[10] During a telephone conference call between the adjudicator and the parties on October 2, 2002, the adjudicator fixed dates for the continuation of the hearing as November 4, 5 and 6, 2002.
[11] On October 22, 2002, the applicant made a formal application to the adjudicator to allow the applicant to re-open its case, to cross-examine previous witnesses and to adjourn re-commencement of the hearing. The adjudicator refused all of the applicant's requests. In his decision, the adjudicator stated:
During his submission, Mr. Worme stated that the WHLFN would consider that I have committed a great injustice to them in the event I denied the above application. I responded that I was offended that the Employer would think that by not granting their application, such a decision would automatically make me an instrument of injustice. After careful consideration, I concluded that I could not see my way to accommodate the Employer's request and denied their application.
[12] On October 29, 2002, the adjudicator sent a letter to the parties which stated that in accordance with an agreement between the parties and the adjudicator, the hearing was to be resumed on November 4, 2002 and would be continued until November 6, 2002.
[13] In response, the applicant sent a letter which stated that it had not agreed to the November hearing dates and that it questioned the adjudicator's motivation in writing such a letter. Although the applicant requested a response, the adjudicator did not provide one.
[14] Counsel for the respondents and the applicant agreed to an adjournment of the hearing to December 11 through the 13, 2002.
[15] When the hearing resumed on December 11, 2002, the applicant's witnesses testified that the respondents had taken an active part in the blockade and protest. The Chief of Waterhen Lake First Nation, Sidney Fiddler, explained the procedure by which it was determined that the respondents would be terminated, and how other employees of the Band had been reprimanded. The respondents' witnesses testified, inter alia, that the respondents had not taken part in the protest and blockade.
[16] On December 13, 2002, the applicant requested permission to call three rebuttal witnesses. The adjudicator permitted two of the witnesses to be called, but refused to allow Robert Fiddler, who had already testified, to be called in rebuttal.
[17] A final day of hearing was held on January 10, 2003.
[18] On January 21, 2003, the adjudicator issued an interim award without reasons. On March 2, 2003, the adjudicator provided reasons for his decision. Corrections were issued on May 1, 2003.
[19] On the merits of the case, the adjudicator noted that some of the testimony of the applicant's witnesses supported the conclusion that the respondents had not taken part in the blockade and protest. The adjudicator then found that the decision to terminate the respondents was not made in good faith. He based this conclusion on the fact that the applicant did not apply discipline in a consistent manner, that the decision to terminate was not made by council as a whole, but by a quorum of council that had been selected by the Chief, and that the applicant disregarded the respondents' appeals of their dismissals.
[20] Finally, the adjudicator concluded:
The Employer [applicant] did not discharge its onus of demonstrating on the balance of probability that it terminated the Complainants [respondents] for "just cause". The decision to terminate was arrived purely on erroneous perceptions. The Employer failed to demonstrate that the Complainants were actively involved in the planning and participation of the protest as it has alleged. The Complainants demonstrated reasonable efforts to mitigate their losses and the Employer was not able to refute their evidence.
[21] The adjudicator awarded the respondents reinstatement to their positions at the Band, as well as full compensation for lost wages and benefits.
[22] This is the judicial review of the adjudicator's decision that the respondents were terminated without just cause.
Applicant's Submissions
[23] The applicant challenges the adjudicator's decision on the basis of a denial of natural justice, including bias and denial of a fair hearing, that the adjudicator's decision was based on an erroneous finding of fact and is otherwise patently unreasonable.
[24] Violation of Duty of Fairness
The applicant submits that the adjudicator denied it a fair hearing by not granting new counsel an adjournment of the hearing dates, by imposing a hearing date in early November; by refusing to allow new counsel to re-open the applicant's case and call evidence so that counsel could know what testimony had already been given; and by refusing to allow the applicant's counsel to call rebuttal witnesses.
[25] The applicant submits that during an arbitration hearing under theCanada Labour Code, supra, where a party asks for an adjournment and the request is reasonable, it is an error for an adjudicator to deny the request because doing so denies that party a fair hearing.
[26] Furthermore, the applicant submits that the adjudicator should take into consideration the prejudice caused to the requesting party and whether there is evidence that the party is requesting an adjournment because it does not desire to proceed with the hearing. The adjudicator should take into account all the surrounding circumstances in determining whether to grant an adjournment.
[27] In the case at bar, the applicant submits that the adjudicator should have recognized the severe prejudice that counsel would be under when he denied the request for an adjournment and the request to re-open the applicant's case. The applicant further submits the adjudicator forced it to proceed with unprepared counsel. In doing so, the applicant submits that the adjudicator exceeded his jurisdiction.
[28] Reasonable Apprehension of Bias
The applicant submits that the adjudicator displayed real bias or a reasonable apprehension of bias by the following:
· Refusing the applicant's request for an adjournment;
· Refusing the applicant's request to re-open its case;
· Commenting at page 44 of the final award on the applicant's discipline of other band members when there was no such evidence before him;
· Erring in his recording and recitation of the evidence of Chief Sidney Fiddler;
· Erring in the recording and recitation of the evidence of Robert Fiddler;
· Erring in the recording and recitation of Emily Gauthier's evidence;
· Commenting on the ineffective and inconsistent evidence of the witnesses for the applicant while ignoring issues of inconsistencies and contradictions of evidence of the respondents' witnesses;
· Ignoring, or in the alternative, ignoring the import of the contradiction of Donald Martell's evidence by Peter McCallum;
· The timing of the adjudicator's October 29, 2002 fax correspondence to the applicant's new counsel.
· Failing to reply to the correspondence dated October 29, 2002 from the applicant's new counsel;
· Stating that he "was offended" by the applicant's suggestion that it would be unjust to deny the request for the adjournment and to re-open the applicant's case, and further characterizing such suggestion as a personal attack which would render the adjudication an "instrument of injustice";
· Suggesting that the applicant's new counsel agreed to the dates set in November when no such agreement was given;
· Refusing to allow applicant's counsel to call rebuttal witnesses at the hearing;
· Stating that the rebuttal witnesses that were called at the hearing were called to address the issue of whether or not the saw mill workers took part in the protest;
· Setting a 3:00 p.m. deadline for the hearing on January 10, 2003 [sic - should read December 13, 2002] thus potentially constraining applicant's counsel's cross-examination, and then, shortly after 3:00 p.m., suggesting that he would be prepared to stay past 3:00 p.m. to hear argument.
[44] The applicant submits that the test for bias is to consider the cumulative effect of all the relevant factors and then ask: would they lead a reasonable and informed observer to have a reasonable apprehension of bias on the part of the decision-maker and conclude that there had not been a fair and impartial hearing? The applicant states that bias can be consciously or unconsciously formed.
[45] The applicant submits that the standards for reasonable apprehension of bias may vary depending on the context and the type of function performed by the administrative decision-maker involved. In the context of the case, the adjudicator had a quasi-judicial function. The applicant contends that the adjudicator should be given little deference as he has no particular experience in legal matters, is selected from a pool of adjudicators and he lacks expertise, especially in regard to principles of natural justice and bias.
[46] The applicant further submits that in some circumstances adjudicators have been found to have raised a reasonable apprehension of bias by "picking" on the credibility of the employer's witnesses while remaining silent on the inconsistencies of the complainant's evidence.
[47] The applicant submits that the cumulative effect of the evidence was to create actual bias or a reasonable apprehension of bias.
Respondent's Submissions
[48] Denial of Fair Hearing
Refusing Adjournment
The respondents submit that the adjudicator, under the Canada Labour Code, supra, has the discretion to grant or refuse an application for an adjournment as long as procedural fairness is maintained. The respondents further submit that when an adjournment is requested, the adjudicator is in the best position to determine whether the adjournment should be granted.
[49] The respondents submit that a party who has adequate notice of a hearing has no right to an adjournment and is not entitled an adjournment for the convenience of counsel.
[50] In the case at bar, the adjudicator examined several factors before refusing an adjournment. Firstly, the parties had all agreed initially to the hearing dates of November 4, 5, and 6, 2002. Secondly, had the hearing proceeded on November 4, counsel for the applicant would have had 73 days to prepare for resumption. The respondent submits that this was more than adequate time to prepare for the hearing, taking into consideration that the applicant's case had been concluded so the applicant only had to cross-examine the respondents' witnesses. The adjudicator also considered that there was a desire to have an expeditious determination of the matter in the interests of justice. Indeed, once the parties themselves agreed to an adjournment, the adjudicator agreed to one, though he did have the authority to insist that the matter proceed.
[51] The respondents submit that even if the adjudicator erred by not granting the adjournment requested by the applicant, then this error was rectified when an adjournment was obtained through the consent of the parties.
Refusing to Re-open the Employer's Case
[52] The respondents submit that the applicant did not need to reinitiate its case. Representatives of the applicant were present through the entire hearing and were taking notes. The applicant's first counsel and each of the individual witnesses were available to be interviewed. The applicant's new counsel, argues the respondents would therefore have been able to ascertain what occurred at the hearing without re-opening its case. The respondents further note that if the witnesses were unable to recall what they stated during their testimony, then their affidavits for the present application for judicial review are of no use because they attest to what their testimony was at the earlier adjudication hearing.
[53] The respondents further submit that the applicant had a full and fair opportunity to present its case. All of the applicant's witnesses were examined, the applicant had counsel of its choice and it was not alleged that the previous counsel had performed inadequately. The respondents submit that there was no denial of a fair hearing simply because the applicant was denied the opportunity to re-open its case.
[54] The respondents submit that the adjudicator, like a trial judge, has the discretion to admit further evidence for his or her own satisfaction or where the interests of justice require. However, there is no authority for being permitted to recommence a party's entire case, especially where all of the evidence and witnesses the applicant's new counsel sought to introduce were available to the applicant's previous counsel. In the respondents' view, the applicant was inconvenienced by the actions of its prior counsel, but suffered no true prejudice.
[55] The respondents further submit that one must balance the injustice to be suffered by the respondents had the hearing been recommenced in its entirety against the injustice suffered by the applicant in being required to proceed with cross-examinations performed by its new counsel. The respondents submit that had the adjudicator allowed the applicant to re-open its case, the respondents would have been denied a fair hearing.
Refusing to Admit Rebuttal Witnesses
[56] The respondents submit that the standard of review of this is issue is patent unreasonableness.
[57] The respondents further submit that it is a general principle of law of evidence that re-examination must be confined to matters arising out of cross-examination. A witness is not permitted to supplement the examination-in-chief with new evidence not raised under cross-examination.
[58] In the case at bar, the adjudicator did not allow the applicant to re-call Robert Fiddler as a rebuttal witness. The applicant sought to call Mr. Fiddler to rebut the evidence of one of the respondents, Joanne Martell. However, Robert Fiddler was not being called to clarify his previous position or to respond to matters that arose for the first time in cross-examination. The evidence that Mr. Fiddler was to provide was within his knowledge and had been at the time of his examination-in-chief. It is submitted the adjudicator's decision that the applicant sought to call Mr. Fiddler for an improper purpose was, therefore, correct.
[59] Even if it was not correct, the respondents submit that the adjudicator's decision was not patently unreasonable. As such, it is submitted that the decision should not be disturbed by this Court on judicial review.
[60] The respondents further submit that these principles should also apply to the adjudicator's decision to refuse to allow the applicant to re-open its case and examine every witness. This is particularly so, given that the applicant had already heard the testimony of the respondents' first two witnesses at the time of its request to re-open.
Reasonable Apprehension of Bias
[61] The respondents essentially agree with the legal test as identified by the applicant. The respondents add, however, that the threshold for finding a real or perceived bias is high, that surmise and conjecture are insufficient to establish a reasonable apprehension of bias, and that the party alleging bias bears the onus of proof.
[62] Here, the respondents contend that the applicant is simply attacking the adjudicator's decision on its merits. The respondents suggest that this submission is made as an attempt to submit the affidavits filed by the applicant's witnesses. The respondents submit that the affidavits filed by the applicant should not be read in support of these allegations. In the respondents' view, the applicant's allegations of bias are nothing more than surmise and conjecture that do not raise a reasonable apprehension of bias.
Refusing the Applicant's Request for an Adjournment, Re-opening its Case and Rebuttal Witnesses
[63] The respondents submit that the applicant's request for an adjournment, its request to re-open its case and call rebuttal witnesses is, as stated before, matters that the adjudicator used his discretion correctly to deny. Furthermore, the applicant's request for an adjournment was granted on consent, therefore, no reasonable apprehension of bias was created.
Comment Regarding Disciplining Other Employees Who had Taken Part in the Blockade
[64] The applicant alleges that the there was no evidence before the adjudicator regarding the discipline of other band members and argues that this finding supports its claim of bias. The respondents submit that this is false, however, as the record shows that Chief Fiddler testified during his examination-in-chief that there were approximately 25 employees who participated in the blockade and that approximately 12 were reprimanded and six were issued letters of termination.
Erring in the Recording and Recitation of Evidence
[65] The respondents note that the applicant filed affidavits from three hearing witnesses which state that the evidence they gave was misunderstood by the adjudicator. The respondents state that the adjudicator recorded the witnesses' testimony at the time it was presented, whereas the applicant's witnesses' affidavits were not drafted until several months after their appearances at the hearing so are less reliable. The adjudicator, moreover, was an independent party. Thus, the respondents submit that the adjudicator's contemporaneous notes should be given more weight than that of the affidavits filed by the applicant.
[66] The respondents further submit that the applicant, in making this submission, is asking the Court to correct an alleged erroneous finding of fact. However, the Court can only intervene when the tribunal has made a finding of fact in a perverse or capricious manner, and here this was not the case. As such, the respondents submit that the Court should not disturb the adjudicator's decision on this point.
Findings of Credibility
[67] The respondents submit that the adjudicator should be given deference in determinations of credibility. Here, the adjudicator determined that the testimony of the applicant's witnesses was conflicting and inconsistent and that there was no credible evidence that the respondents participated in the protest.
[68] The respondents argue that the inconsistencies in the testimony of the applicant's witnesses are clear. For instance, Chief Fiddler first testified that he saw the respondents at the protest and then said that he did not. This affidavit, if accepted, only confirms that the Chief saw the respondents at the protest, something which was never denied. The respondents argue that the adjudicator's findings of credibility are sustainable and that any allegations of bias arising from the adjudicator's assessments of credibility are nothing more than surmise and conjecture.
Facsimile of October 29, 2002 and Agreed Date for Resumption of Hearings
[69] The respondents submit that there is evidence on the record and from the respondents' counsel at the time of the hearing that, contrary to the applicant's position, the parties agreed to the November hearing dates. The facsimile was sent after the applicant's motion for an adjournment was rejected, and was sent as clarification that it would still go forward. The respondents further submit that there was no evidence presented that explains how such a facsimile could create an apprehension of bias.
Adjudicator's Statement of Being "Offended"
[70] The respondents submit that in Clerk v. Canadian Pacific Railway (2001), 205 F.T.R. 60, 2001 FCT 449, the Court found that the applicant's contentions of bias were based on conjecture, and no reasonable apprehension of bias existed. The respondents submit that this is also true of the case at bar.
[71] The respondents emphasize that the threshold for demonstrating bias is high, and argue that no reasonable person could conclude an apprehension of bias existed based on this harmless comment made by the adjudicator.
Deadline for Hearing
[72] The respondents submit that placing restrictions on the duration of a hearing session is within the discretion of an adjudicator and it is clearly within the authority provided to the tribunal to determine its own procedure.
[73] The record demonstrates that the adjudicator set a time limit for the hearing, but that he actually extended that time limit upon the request of applicant's counsel. The respondents submit that there exists no reasonable apprehension of bias in this case.
Issues
[74] The applicant submits that the issues are as follows:
1. Did the adjudicator deny the applicant a fair hearing and in so doing, breach the principles of natural justice and exceed his jurisdiction by refusing the request by the applicant in October 2002 for an adjournment?
2. Did the adjudicator deny the applicant a fair hearing and thereby breach the principles of natural justice and exceed his jurisdiction by refusing new counsel for the applicant to re-open the case for the applicant and call evidence?
3. Did the adjudicator deny the applicant a fair hearing and thereby breach the principles of natural justice and exceed his jurisdiction by refusing to allow new counsel for the applicant to call rebuttal witnesses at the hearing?
4. Did the adjudicator, in his preliminary ruling of October 2, 2002 and final ruling in March 2003 and in his overall treatment of the applicant and characterization of the applicant's evidence display a genuine bias?
Relevant Statutory Provisions and Regulations
[75] Section 16 of the Canada Labour Code, supra reads as follows:
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16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
(a.1) to order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the times, dates and places of the hearings for those procedures;
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16. Le Conseil peut, dans le cadre de toute affaire dont il connaît:
a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et pièces qu'il estime nécessaires pour mener à bien ses enquêtes et examens sur les questions de sa compétence;
a.1) ordonner des procédures préparatoires, notamment la tenue de conférences préparatoires à huis clos, et en fixer les date, heure et lieu;
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(a.2) to order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the Board to communicate with each other simultaneously;
(b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;
. . .
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a.2) ordonner l'utilisation des moyens de télécommunication qui permettent aux parties et au Conseil de communiquer les uns avec les autres simultanément lors des audiences et des conférences préparatoires;
b) faire prêter serment et recevoir des affirmations solennelles;
c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation, il juge indiqués, qu'ils soient admissibles ou non en justice;
. . .
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Sections 240 and 242 of the Canada Labour Code, supra read as follows:
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240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous employment by an employer, and
(b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).
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240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si:
a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;
b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.
242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement.
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(2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and ©).
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
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(2) Pour l'examen du cas dont il est saisi, l'arbitre:
a) dispose du délai fixé par règlement du gouverneur en conseil;
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
(3) Sous réserve du paragraphe (3.1), l'arbitre:
a) décide si le congédiement était injuste;
b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.
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Analysis and Decision
[76] Issue 1
Did the adjudicator deny the applicant a fair hearing and in so doing, breach the principles of natural justice and exceed his jurisdiction by refusing the request by the applicant in October 2002 for an adjournment?
As of October 2002, the hearing before the adjudicator was set to recommence on November 4, 2002. The hearing had previously been held from August 19 to 22, 2002, at which time the applicant had completed calling its witnesses and the respondent had called two witnesses. The applicant's first counsel discontinued his services on August 22, 2002 as he was moving from the province. The applicant retained new counsel in August 2002, who did not locate the former counsel until some time in September. New counsel made a request to adjourn the hearing to a later date. The motion for an adjournment was denied by the adjudicator. After the denial of the adjournment request, the parties agreed to the hearing being adjourned to December 11, 2002.
[77] For ease of reference, I will reproduce paragraph 242(2)(b) of the Canada Labour Code, supra which states:
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(2) An adjudicator to whom a complaint has been referred under subsection (1)
. . .
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
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(2) Pour l'examen du cas dont il est saisi, l'arbitre:
. . .
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
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[78] In Canada Post Corp. v. P.S.A.C. (1988), 50 D.L.R. (4th) 543 (N.S.C.A.) the Court stated at page 553 when considering a similar provision:
I agree with the learned chambers judge that the arbitrator generally has a power to adjourn under the Code. It is a power clearly within the arbitrator's jurisdiction in the narrow and original sense.
Only if this power is exercised in a manner which the Court considers unreasonable, and found upon the law, a flagrant injustice or characterized by a patently unreasonable error, will intervention by the Court take place. . . .
[79] In the present case, the adjudicator stated in refusing the adjournment request that the applicant would have had 73 days (51 working days) to prepare for the recommencement of the hearing. I am of the view that this period of time was sufficient for the applicant to prepare for the remainder of the hearing, even if it had new counsel for the continuation of the hearing. On the facts of this case, the refusal to grant the adjournment did not deny the applicant a fair hearing so as to breach the rules of natural justice and cause the adjudicator to exceed his jurisdiction. I would note that by agreement, the completion of the hearing did not take place on November 4 to 6, 2002, but the hearing was continued on December 11 to 13, 2002 and January 10, 2003. Again, this span of time which was agreed upon by the parties would certainly satisfy me that, in the alternative, the applicant was given a fair hearing and that there was no breach of the rules of natural justice by reason of the denial of an adjournment.
[80] Issue 2
Did the adjudicator deny the applicant a fair hearing and thereby breach the principles of natural justice and exceed his jurisdiction by refusing new counsel for the applicant to re-open the case for the applicant and call evidence?
The applicant had completed presenting its evidence and the respondents had called two of its witnesses at the August hearing. When the applicant's counsel moved to another province, the applicant retained a new lawyer who made an application "to continue the case of the said employer for the purpose of tendering new evidence and witnesses. . . ." The applicant wished to re-open its case as it claimed that it was not able to determine what evidence was put before the adjudicator. I am of the view that the applicant would be able to consult one of the witnesses who stated that he was present at the whole hearing, as to the evidence given in August 2002. There was also an opportunity to consult the former counsel and the applicant's representatives who were taking notes at the hearing in August 2002. It is within the discretion of the adjudicator as to whether or not to re-open the case. He refused to do so and I cannot say that he was in error in refusing to re-open the applicant's case based on the facts of this case. The applicant was not denied a fair hearing in this respect nor were the rules of natural justice breached by the adjudicator.
[81] Issue 3
Did the adjudicator deny the applicant a fair hearing and thereby breach the principles of natural justice and exceed his jurisdiction by refusing to allow new counsel for the applicant to call rebuttal witnesses at the hearing?
The adjudicator allowed the applicant to call two rebuttal witnesses after the completion of the respondents' case, however, the applicant chose to call only one of these rebuttal witnesses. The adjudicator refused to allow Robert Fiddler, who had already testified, to be called by the applicant as a rebuttal witness. According to the adjudicator, the applicant wished to call Mr. Fiddler to rebut Joanne Martell's statement that she did not pay one of Mr. Fiddler's expense claims because she did not receive his requisition for payment from her supervisor. The adjudicator denied the applicant's request to call Mr. Fiddler as a rebuttal witness because he could have addressed that situation as part of his evidence-in-chief. The adjudicator has a discretion as to whether to allow the calling of rebuttal evidence. I am of the view that he exercised the discretion properly in this case. Accordingly, there was no breach of the rules of natural justice or denial of a fair hearing due to the ruling that Robert Fiddler could not be called as a rebuttal witness.
[82] Issue 4
Did the adjudicator, in his preliminary ruling of October 2, 2002 and final ruling in March 2003 and in his overall treatment of the applicant and characterization of the applicant's evidence display a genuine bias?
The applicant submitted that the adjudicator displayed real bias, and/or raised a reasonable apprehension of bias, and thereby violated the principles of natural justice. The applicant listed a number of examples of conduct that, in its view, amounts to bias or a reasonable apprehension of bias. I must now determine whether the incidents described by the applicant would lead the adjudicator to be biased or would lead a reasonable and informed person to have a reasonable apprehension of bias on the part of the adjudicator.
[83] The test for reasonable apprehension of bias was set out by L'Heureux-Dubé J. and McLachlin J. (as she then was) in R. v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 31 (quoting from de Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at pages 394 to 395):
. . . the 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."
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
Refusing the applicant's request for an adjournment and refusing the applicant's request to re-open the case
[84] I have already ruled that the adjudicator's refusal to grant an adjournment and his refusal to re-open the applicant's case were discretionary decisions that were reasonably open to him. As such, these decisions do not amount to bias or an apprehension of bias on the part of the adjudicator.
Commenting at page 44 of his final award on the applicant's discipline of other Band members when there was no such evidence in that regard before him
[85] In his decision, the adjudicator states (at page 97 of the applicant's record) that Chief Fiddler testified that of the 25 employees who took part in the blockade, approximately 12 were reprimanded and 6 were issued letters of termination. As such, there is no basis for the applicant's argument that the adjudicator's finding of fact on this issue demonstrates bias or a reasonable apprehension of bias.
Error in recording and recitation of the evidence of Chief Sidney Fiddler, Robert Fiddler and Emily Gauthier
[86] The applicant filed affidavits of three of its witnesses. In these affidavits, the witnesses state that either their testimony was different than noted by the adjudicator or that the adjudicator mischaracterized their evidence. The affidavits were sworn on April 17, 2003, while presumably the detailed factual background given by the adjudicator would be taken from his contemporaneously-made hearing notes. On this basis, I prefer the adjudicator's factual findings. There is no evidence that any of the adjudicator's factual findings were made in a perverse or capricious manner (see Kibale v. Canada (Transport Canada) (1988), 90 N.R. 1 (F.C.A.)). There is, therefore, no bias or apprehension of bias on the part of the adjudicator on this basis.
Commenting on the ineffective and inconsistent evidence of the witnesses for the applicant while ignoring issues of inconsistencies and contradictions of evidence of the respondents' witnesses and ignoring, or in the alternative, ignoring the import of the contradiction of Donald Martell's evidence by Pete McCallum
[87] The adjudicator found that the evidence of the applicant's witnesses was conflicting and inconsistent. The assessment of testimony and witnesses is at the very heart of the adjudicator's role. This Court grants considerable deference to adjudicators' decisions on such matters. This finding does not amount to bias or an apprehension of bias on the part of the adjudicator in this case.
The timing of the adjudicator's October 29, 2002 fax correspondence to new counsel
[88] This was a fax sent to counsel confirming the date on which the hearing was to resume. The applicant seemed to suggest that the fax was sent out as the result of a conversation with the respondents' counsel. There is no evidence of such a conversation. The applicant has not established bias or apprehension of bias in this respect.
Failing to reply to the correspondence from the applicant's new counsel dated October 29, 2002
[89] The adjudicator did not reply to the applicant's new counsel's fax concerning the November 2002 hearing dates. The adjudicator's failure to reply does not amount to bias or an apprehension of bias.
Stating that he "was offended" by the applicant's suggestion that it would be unjust to deny the request for the adjournment and to re-open the applicant's case and further characterizing of such suggestions as a personal attack which would render the adjudicator as "an instrument of injustice"
[90] I have reviewed the adjudicator's statements, in his decision, concerning this issue. All the adjudicator seems to be saying is that he was offended that the applicant would see him as being automatically "an instrument of injustice" if he refused the applicant's application. I cannot agree that this statement makes the adjudicator biased or would raise a reasonable apprehension of bias.
Suggesting that new counsel agreed to the dates set in November 2002 when no such agreement was given
[91] The adjudicator in his fax of October 29, 2002 which related to the resumption dates for the hearing stated that all parties agreed to the new dates. The applicant's counsel states that he did not agree to the dates. At most, this would be a misunderstanding on the part of the adjudicator. It does not lead to a finding of bias or an apprehension of bias.
Refusing to allow applicant's counsel to call rebuttal witnesses at the hearing
[92] This argument has been dealt with under Issue 3 and I would repeat my conclusions and find that this is not a basis for bias or an apprehension of bias.
Stating that the rebuttal witnesses that were called at the hearing were called to address the issue of whether or not the saw mill workers took part in the protest
[93] The adjudicator's decision states (at page 127 of the applicant's record) that the applicant's counsel had obtained information that the saw mill workers were not the only employees involved in the blockade of the Band offices, and that he wanted to call rebuttal witnesses to address that issue. Even if the applicant's rebuttal witnesses were called for broader purposes, this would not lead to a finding of bias or an apprehension of bias on the part of the adjudicator.
Setting a 3:00 p.m. deadline for the hearing on December 13, 2002 thus potentially constraining applicant's cross-examination, and then, shortly after 3:00 p.m. suggesting that he would be prepared to stay past 3:00 p.m. to hear argument
[94] Pursuant to paragraph 242(1)(b) of the Canada Labour Code, supra, it was within the adjudicator's authority to set a time for the close of the hearing on December 13, 2002. That day was not the last scheduled day of the hearing as it was also set for January 10, 2003. In any event, the applicant decided not to call the witness who was present on December 13, 2002. If there was not sufficient time to complete the witness on December 13, 2002, the witness could have been heard on January 10, 2003. This step by the adjudicator does not support a finding of bias or an apprehension of bias.
[95] For all of the above reasons, I find that the conduct put forward by the applicant does not either individually or cumulatively support a finding of bias or an apprehension of bias on the part of the adjudicator. I am not convinced that the applicant's right to a fair hearing or the safeguards of natural justice were breached in the circumstances.
[96] The applicant's application for judicial review is therefore dismissed with one set of costs to the respondents.
ORDER
[97] IT IS ORDERED that the applicant's application for judicial review is dismissed with one set of costs to the respondents.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
June 9, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-294-03
STYLE OF CAUSE: WATERHEN LAKE FIRST NATION
- and -
MICHELLE ERNEST, LEONARD VINCENT,
DONALD MARTELL, JOANNE MARTELL and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: June 9, 2004
APPEARANCES:
Gregory J. Curtis
FOR APPLICANT
Scott D. MacDonald
Benjamin Partyka
FOR RESPONDENTS
SOLICITORS OF RECORD:
Semaganis Worme & Missens
Saskatoon, Saskatchewan
FOR APPLICANT
Wallace Meschishnick Clarkson Zawada
Saskatoon, Saskatchewan
Benjamin Partyka
Meadow Lake, Saskatchewan
FOR RESPONDENTS
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