Date: 20100319
Docket: T-72-10
Citation: 2010 FC 322
Toronto, Ontario, March 19,
2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
COUCHICHING
FIRST NATION
Applicant
and
DANIEL
J. BAUM and AIMEE ADAMS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Couchiching
First Nation (the “Applicant”) seeks an Order staying Dr. Daniel Baum (or the
“adjudicator”) from continuing with the hearing of the complaint filed by Ms.
Aimee Adams (the “Respondent”) under the provisions of the Canada Labour
Code, R.S.C. 1985, c. L-2 (the “CLC”).
[2]
The
Applicant is the former employer of the Respondent. The Respondent alleges that
she was unjustly dismissed from her employment on March 6, 2007. The Respondent
submitted her complaint pursuant to the CLC on May 11, 2007.
[3]
The
Applicant filed the underlying application for judicial review on January 15,
2010, seeking the following relief:
1. an Order
setting aside the decisions of Respondent Baum and directing that the hearing
of the Complaint take place, in its entirety, in or near Couchiching First
Nation;
2. an Order
removing Respondent Baum as adjudicator of the Complaint, and voiding all
decisions made by Respondent Baum in relation to the Complaint proceedings;
3. its costs of
this application; and
4. an Order
granting such further and other relief as counsel may request and this
Honourable Court may permit.
[4]
The
Notice of Motion seeking a stay of the hearing before Dr. Baum was filed on
February 22, 2010. Paragraphs (a) and (b) of the Notice of Motion set out the
grounds of the motion as follows:
i.
The
Applicant commenced the within Application on January 15th, 2010 to
challenge a decision of Respondent and Adjudicator Daniel Baum to hold the CLC
Complaint hearing in Thunder Bay ON for his sole convenience, as opposed to
Fort Frances ON where the events occurred and the parties and witnesses reside,
and to remove and or preclude Respondent Baum from acting as Adjudicator of the
Complaint due to bias demonstrated in the lead up to and during the first day
of the hearing of the Complaint.
ii.
Respondent
Baum declined the Applicant’s request to change the location of the hearing, to
recuse himself as Adjudicator of the Complaint and to delay the Complaint
hearing until disposition of the within Application.
[5]
The
Applicant filed four affidavits in support of its motion as follows:
a. the Affidavit
of Cynara Bruyere, executive assistant for the Couchiching First Nation
Administrative Office and to Mr. Smokey Bruyere, sworn on February 10, 2010;
b. the Affidavit
of Coral Chisel, legal assistant to Ms. Chantelle Bryson, sworn on February 11,
2010;
c. the affidavit
of Smokey Bruyere, Band Manager for the Couchiching First Nation, sworn on
February 11, 2010; and
d. the second
affidavit of Coral Chisel sworn on February 19, 2010.
[6]
The
first affidavit of Coral Chisel refers to 44 exhibits, including correspondence
between Counsel for the Applicant and Dr. Baum. The exhibits also include
various rulings by the adjudicator upon a number of objections raised by
Counsel for the Applicant concerning the conduct of the hearing into the
Respondent’s complaint. The tone of the correspondence from Counsel for the
Applicant is aggressive and antagonistic, verging at times on intimidation.
[7]
The
test for a stay is tripartite and conjunctive, as set out in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, that is a serious
issue for trial arising from the underlying originating document, in this case
an application for judicial review, the denial of the relief sought will cause
irreparable harm and that the balance of convenience favours the party seeking
the stay.
[8]
The
Applicant submits that it has met the three requirements for a stay as
discussed in RJR-MacDonald.
[9]
The
Applicant claims that Dr. Baum has shown bias and points to his decision to
schedule the hearing of the complaint in Thunder Bay rather than
in Fort
Frances.
The Applicant also points to the decision of Dr. Baum refusing to recuse
himself, a decision set out in a letter dated December 21, 2009 in response to
a request presented by Counsel for the Applicant in her letter of December 16,
2009.
[10]
Relying
on the decisions in Royal Canadian Mounted Police v. Malmo-Levine (1998),
161 F.T.R. 25 (T.D.), Woloshyn v. Yukon Teachers Association [1999] Y.J.
No. 69 (Y.T.S.C.)(Q.L.), Zündel v. Canada (Canadian
Human Rights Commission), [1999] F.C.J. No. 107 (T.D.)(Q.L.), the
Applicant argues that serious allegations of bias meet the requirements of a
serious issue for the purpose of a stay and further that a challenge based on
allegations of bias is a challenge to the jurisdiction of the tribunal in
issue.
[11]
The
Applicant relies on the decisions in Guttierez v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. 608 (T.D.)(Q.L.) and Great
Atlantic and Pacific Co. of Canada Ltd. v. Ontario (Minister of
Citizenship) (1993), 62 O.A.C. 1 (Div. Crt.) to argue that the interests
of justice are best served, in the face of serious bias allegations, by halting
a hearing at an early stage rather than proceeding to a decision that may be
flawed, notwithstanding the availability of judicial review.
[12]
The
test for bias is set out in the decision of the Supreme Court of Canada in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p.
394 as follows:
…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. In
the words of the Court of Appeal, that 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.”
[13]
This
test is not easily met.
[14]
The
affidavit material, including the exhibits, shows that Dr. Baum has made
certain rulings against certain requests made by the Applicant, including a
refusal to adjourn in October 2009 and a refusal to recuse himself. Insofar as
the affidavit of Mr. Smokey Bruyere and the second affidavit of Ms. Chisel purport
to offer a view of the conduct of the adjudicator at the hearing held on
December 1, 2009, I assign those affidavits little weight. Mr. Bruyere
is not a disinterested party and Ms. Chisel is relating hearsay evidence.
[15]
The
adjudicator, acting under the provisions of the CLC, is authorized to control
the processes of the hearing, subject to the requirements of natural justice
and procedural fairness. A well-founded allegation of bias militates against
respect for procedural fairness and natural justice.
[16]
Not
every negative decision by an adjudicator can, or will be, the basis of an
allegation of bias. In this regard, I refer to the decision in Boparai v.
Canada (2008), 79 Admin. L.R. (4th) 240 where counsel for
the applicant raised a motion for recusal against the presiding judge on the
grounds that the fact that he had previously filed a complaint against the
judge gave rise to a reasonable apprehension that she could be biased against
him. The presiding judge resolutely rejected the motion.
[17]
I
repeat that not every allegation of bias, which is said to be the basis of the
underlying application for judicial review, gives rise to a serious issue
either for a hearing on the merits or for the purposes of a stay motion. In the
circumstances of this case, I need not decide whether the Applicant has shown
that a serious issue for trial exists because I am not satisfied in any event,
that the Applicant has met its burden to show that it will suffer irreparable
harm if the stay is refused.
[18]
The
Applicant claims that it will be exposed to significant costs in attending
hearings in Thunder Bay when most, if not all, the witnesses for the Applicant
live in Fort
Frances. The
Applicant says that it will be unable to recover those costs if it successfully
defends the Respondent’s claim of unjust dismissal.
[19]
According
to the jurisprudence, a party seeking a stay must adduce non-speculative
evidence in support of the issue of irreparable harm. I refer to the decisions
in Nature Co. v. Sci-Tech Educational Inc. (1992), 41 C.P.R. (3d) 359
and Centre Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d) 34.
[20]
The
affidavits filed on behalf of the Applicant do not provide adequate evidence of
irreparable harm. Indeed, these affidavits fail to address that issue but focus
on the history of the events leading up to the first day of the hearing of the
Respondent’s complaint. In the absence of sufficient probative evidence of
irreparable harm, the Applicant’s motion for a stay must fail.
[21]
I
note that the Applicant relied on the same arguments in respect of the issue of
balance of convenience as it had advanced in respect of the issue of
irreparable harm. However, as noted above, the Applicant did not present
sufficient probative evidence to support its claim that it would suffer
irreparable harm. It follows then, that the Applicant cannot show that the
balance of convenience lies in its favour.
[22]
The
record filed in this motion raises some worrisome concerns. In my opinion, the
Applicant or its Counsel, or both, are attempting to impede and delay the
hearing of the Respondent’s complaint. This is an attempt to manipulate the
summary hearing procedure granted under the CLC and an attempt to manipulate the
legitimate role of the adjudicator in establishing the parameters and processes
of the hearing. This course of conduct is improper.
[23]
The
Applicant sought costs, payable forthwith, if successful on this motion. Since
it has not succeeded, it is not entitled to costs and there will be no order as
to costs relative to this motion.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the motion is
dismissed, no order as to costs relative to this motion.
“E.
Heneghan”
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