Docket: T-850-11
Citation: 2012 FC 431
Ottawa, Ontario, April 13,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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BANK OF MONTREAL
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Applicant
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and
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MARK PAYNE
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of Adjudicator Peter G.
Barton (the Adjudicator) dated November 11, 2010 and April 26, 2011 rendered under
the Canada Labour Code, RSC 1985, c L-2, as amended (the Code).
In his decision of November 11, 2010, the Adjudicator found that the respondent,
Mark Payne, had been unjustly dismissed by the applicant, the Bank of Montreal.
In his decision of April 26, 2011, the Adjudicator ordered the Bank to
reinstate Payne and pay him sixteen months’ back pay as compensation. He also
imposed a four-month suspension.
[2]
For
the reasons that follow, the application is granted.
Facts
[3]
The
parties filed an Agreed Statement of Facts before the Adjudicator. Two
witnesses also testified: Payne and Ms. S, the Employee Relations business
partner of the Bank, responsible for employment policies, including the Bank’s Code
of Business Conduct and Ethics and Anti-Harassment (Including Sexual)
(Anti-Harassment policy) policies.
[4]
Payne
worked for the Bank for almost five and a half years as a branch manager at
various locations before being dismissed for cause on November 20, 2008. He
was the manager of the branch of the Bank of Montreal in Woodstock, Ontario for the
majority of the material time.
[5]
On
September 29, 2008, Payne was suspended with pay pending an investigation into
a complaint. On October 16, 2008, he received “Step Three” corrective action
for inappropriate behaviour that included yelling and making demeaning and
inappropriate comments to his subordinates, some of which were of a sexual or
sexist nature. Part of the corrective action included a demotion to a smaller
branch in Norwich, Ontario.
[6]
On
November 7, 2008, as a result of a complaint by the Assistant Manager of the
Woodstock Branch (Teresa Carter) Payne was again suspended with pay pending a
further investigation. In the course of that second investigation, which was
also conducted by Ms. S, the Bank learned that Payne and Carter had engaged in
a consensual sexual relationship on Bank premises during and after business
hours and at Carter’s home. This relationship took place both prior to and during
the period of time covered by the first complaint, and the investigation. It
also continued subsequent to the corrective action issued on October 16, 2008.
In the course of the second investigation the Bank also learned that Payne had
discussed the investigation into the first complaint with Carter, in violation
of a confidentiality commitment he had made in consequence of the investigation
into that complaint.
[7]
On
November 20, 2008, Payne was dismissed for cause. As grounds, the Bank
asserted that Payne had knowingly breached the confidentiality of the
investigation into his inappropriate behaviour and management practices by
discussing it with Carter; that he had acted inappropriately on Bank property
during and after business hours; that he had failed to meet the expectations
set out in the October 16 corrective letter; and he had breached the Bank’s Code
of Business Conduct and Ethics. As a result, the Bank concluded that it
had lost trust and confidence in him.
[8]
Payne
filed a complaint of unjust dismissal pursuant to section 240 of the Code
on December 18, 2008.
The
Adjudicator’s Decision
[9]
The
Adjudicator found that Payne had behaved recklessly, but that little or no
actual harm had resulted from his behaviour. While he felt Payne was deserving
of discipline, the Adjudicator found that the concept of progressive discipline
required that something short of dismissal should have been imposed in order to
provide Payne with sufficient time to improve. As a result, the Adjudicator
ruled that Payne had been unjustly dismissed.
[10]
With
regard to remedies, the Adjudicator ordered reinstatement following a six-month
suspension. Counsel for the Bank objected to this ruling as he had understood
that there had been an agreement to defer the issue of remedies until after the
decision on the merits was reached. In response to these objections the
Adjudicator withdrew his order of reinstatement so that the parties could lead
evidence and make submissions on remedy.
[11]
On
December 16, 2010, the Bank requested that the Adjudicator recuse himself on
the basis that he was, in light of his decision to order reinstatement prior to
the hearing of submissions, biased. The Adjudicator dismissed that motion on
January 28, 2011, heard argument on remedies, and rendered his final decision
on April 26, 2011.
[12]
In
this final decision the Adjudicator noted that reinstatement was not a right
but the preferred remedy for unjust dismissal, barring exceptional
circumstances. As he did not find exceptional circumstances, and given, in his
view, that the Bank had failed to establish that reinstatement was unrealistic,
he ordered Payne reinstated. As previously noted, he ordered a four-month
suspension and back pay of sixteen months.
[13]
The
Bank seeks to set aside both the finding with respect to unjust dismissal and
the remedy of reinstatement.
Issues
Preliminary Issue
[14]
Payne
argues that the Bank’s application with regard to the Adjudicator’s November
10, 2010 decision is not timely as it was not brought within the 30-day
limitation period prescribed by subsection 18.1(2) of the Federal Courts Act,
RSC, 1985, c F-7 for the commencement of judicial review applications. As a
result, Payne argues that this Court can only review the Adjudicator’s decision
on remedies.
[15]
By
way of background, counsel for the Bank wrote to counsel for Payne by email on
November 21, 2010, indicating that he wished to present evidence on the issue
of remedies and that, in his opinion, “the limitation period for filing an
application for judicial review does not begin to run until after the
Adjudicator has considered our respective submissions on remedy and has filed
his final decision with respect to remedy.” Payne’s counsel indicated by email
on December 15, 2010 that any failure to respond should not be taken as an
acquiescence or acceptance of the Bank’s submissions.
[16]
In
my view, this matter can be quickly disposed of. It is well-settled that the
period of time prescribed in subsection 18.1(2) does not begin to run until the
final decision in the proceedings has been rendered: Zündel v Canada (Human
Rights Commission), [2000] 4 FC 255 at para 17. Were this not the
case, this Court would continually have before it multiple applications for
judicial review, with the attendant duplication of materials and incursion of
unnecessary cost. This fragmented approach would do little to advance the
disposition of litigation.
[17]
In
this case, I find the final decision of the Adjudicator was only rendered on
April 26, 2011 and that the two “decisions” were in fact two parts of a whole.
Furthermore, I note that this matter was not seriously pressed at the hearing
before this Court. Additionally, given the misunderstanding between the
Adjudicator and counsel as to the status of the matter at the conclusion of the
evidence on the merits, leave to extend the period of time would be granted
were it required.
Substantive Issues
[18]
The
issues in this case can be summarized as follows:
a. Was the
Adjudicator’s finding of unjust dismissal reasonable?
b. Was the
Adjudicator’s order of reinstatement reasonable?
c. Did the
Adjudicator violate the parties’ right to be heard on the question of remedies?
d. Was there a
reasonable apprehension of bias with respect to the Adjudicator?
Analysis
Standard of Review
[19]
Questions
of mixed fact and law are generally reviewed on a reasonableness standard: Dunsmuir
v New
Brunswick,
2008 SCC 9 at para 53. The Adjudicator’s finding that Payne was unjustly
dismissed involved an interpretation and application of the law that is not
easily separated from the facts, and therefore is to be reviewed on a
reasonableness standard.
[20]
Similarly,
the determination of appropriate remedies is a discretionary decision that also
gives rise to a reasonableness review: Chalifoux v Driftpile First Nation,
2002 FCA 521 at para 12.
[21]
While
reasonableness is a deferential standard of review, this does not mean that
decisions of adjudicators are immune from review. The decision must be
justifiable, transparent, and intelligible and fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”: Dunsmuir, above at para 47.
[22]
In
so far as issues three and four are concerned, questions of bias and the right
to be heard are questions of procedural fairness, inviting a correctness
review: Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at paras 42-43; Geza v Canada (Minister of Citizenship and
Immigration), 2006 FCA 124 at para 44.
1. Was the Adjudicator’s finding
of unjust dismissal reasonable?
[23]
I find
that the Adjudicator committed two errors that rendered his decision
unreasonable.
Failure to apply the
Contextual Analytical Framework
[24]
The first
error arose in the approach to assessing whether Payne’s dismissal was just.
Review of dismissal decisions must be taken in the framework developed by the
Supreme Court of Canada (SCC) in McKinley v BC Tel, [2001] 2 S.C.R. 161,
2001 SCC 38. In McKinley, at para 57, Justice Iacobucci
indicated that a reviewing Court is to employ “an analytical framework that
examines each case on its own particular facts and circumstances, and considers
the nature and seriousness of the dishonesty in order to assess whether it is reconcilable
with sustaining the employment relationship.”
[25]
I find
that while the Adjudicator cited the McKinley judgment, he failed to
employ the contextual analysis it dictates and, as a result, failed to
consider several relevant factors in reaching his determination that Payne’s
dismissal was unjust.
[26]
The
Adjudicator is required to look at the employee’s conduct as a whole,
particularly where the events in question are closely linked in time and
substance. In this case, the Adjudicator failed to consider the relevance of
the timeline and sequence of events leading up to the dismissal. It is to be
recalled that on October 16, 2008, in consequence of the first complaint and
investigation, Payne received the most serious discipline short of dismissal
(the Step Three warning). The Adjudicator found that Payne had not been given
sufficient time to improve following this corrective action. However, this
conclusion fails to take into account the conduct giving rise to that
corrective action, and Payne’s conduct both concurrent with and subsequent to,
that corrective action.
[27]
Payne
received the Step Three warning for inappropriate conduct, which included demeaning
and other inappropriate comments. Following the corrective action in which he
was transferred to the Norwich branch, Payne returned to the
Woodstock branch and had sexual
relations with Carter on bank premises. These facts, which are not contested,
vitiate the rationale that underlies the Adjudicator’s finding that the
dismissal was unjust. The Adjudicator’s finding was predicated on his
conclusion that the Bank ought to have allowed the corrective action time to
take effect. It is clear from Payne’s behaviour that the corrective action
failed to have the desired effect, as he showed little or no understanding that
his behaviour was unacceptable, and in fact continued to engage in
inappropriate conduct in a similar vein to that which earned him the initial
Step Three warning. As noted in Re Roberts and the Bank of Nova Scotia (1979), 1 LAC (3d) 259, this
lack of self-awareness can render a continued employment relationship
inappropriate:
The complainant was guilty of misconduct
worthy of discipline short of dismissal, but at the hearing she was completely
unwilling to accept that she had been at fault in any way. In these
circumstances, reinstatement is not, in my opinion, appropriate.
[28]
The
Adjudicator also appears to have given no weight to the fact that Payne was a
manager and thus in a position of authority and trust. As a branch manager, Payne
was expected to show leadership with respect to the Anti-Harassment policy and the Bank needed to be
able to rely on his trustworthiness and good judgment. The Adjudicator’s
reasons evince a belief that he needed to find that Payne had either threatened
Carter or held out some benefit in return for their sexual relationship in
order to justify his dismissal. This is not the case.
[29]
The role
of a manager is to protect employees and the corporation. As noted in Simpson
v Consumers’ Assn of Canada, [2001] OJ No 5058, 57
OR (3d) 351 at para 66:
Furthermore, as a supervisor, the
respondent had obligations to his employer. Again as Carthy J.A. said in
Banister at p. 587: “management ha[s] two positive duties: first, to members of
the workforce who are entitled to protection from offensive conduct, and
second, to the corporation, to protect it against civil suits at the hands of
individual complainants.” It is the job of senior employees to ensure that the
employer’s duties to its workforce and to its shareholders, in this case,
effectively the public, are carried out so that the employer is protected. If
the supervisor creates the problem, he is in breach of that duty.
[30]
Indeed,
the Adjudicator did not consider the Anti-Harassment policy in a fulsome way. Harassment
is defined in part in the policy as any conduct or language “that creates a
hostile, intimidating or offensive environment.” Furthermore, as a manager, Payne
was identified in the policy as a possible resource for employees who had
experienced harassment, which should have been taken into account by the
Adjudicator. As a manager, Payne had an obligation to adhere to the Bank’s
policies. The simple fact that the relationship between Payne and Carter was
consensual does not change the fact that Payne’s behaviour undermined the
provisions of the Anti-Harassment policy. As noted by the court in Simpson,
above:
[I]t is not only those in the workplace
who are the direct victims of sexual harassment who may have a complaint about
the conduct of a harassing supervisor. Others may be affected by receiving less
favourable treatment, but also in other ways such as by enduring an unwelcome
sexually charged atmosphere associated with the workplace, or risking the
consequences of complaining about the situation.
[31]
The
Adjudicator’s conclusion that the relationship was “essentially a matter
between two private people who happened to work in the same place” does not
accord with the evidence. By focusing only on the Anti-Harassment policy as it would apply between Payne
and Carter, the Adjudicator failed to consider how other employees in the branch,
particularly female employees, would perceive Payne’s conduct and its
implications for them.
Absence of Harm
[32]
The second
error of law of the Adjudicator was his belief that actual harm was required in
order for Payne’s dismissal to have been justified. This was incorrect. As
the case law makes clear, employee misconduct that creates a risk of harm to
the employer is sufficient to amount to cause for dismissal: Banque Nationale
du Canada c Lepire, 2004 FC 1555 at para 12; Simard v Transport aérien
Royal, [1996] FCJ No 373 at paras 18-20. Actual harm is not required to justify a
dismissal.
[33]
As the
Adjudicator noted, Payne exposed the Bank to a civil suit by Carter: “Whether
or not he breached any Policy, his conduct was at the very least, reckless in
the extreme and put the Bank at real risk. Its reputation in the community
could have been seriously damaged by publicity.” The Adjudicator also found
that at least one employee was aware of the relationship, which may have
produced a negative work environment in which other employees assumed that the
manager would favour one employee. Furthermore, given that Payne engaged in
his sexual relations with Carter during business hours, the Bank did in fact
suffer lost hours and productivity of two employees.
[34]
The
Adjudicator erred in framing his analysis on the belief that actual harm was
required to justify Payne’s dismissal. The Adjudicator’s conclusion was
animated by a belief that actual harm is necessary to justify dismissal:
Despite the great risk faced by this
employer, little or no actual harm came to it, unlike the situation in
the above cases. The only proven work or community related consequence was that
one other employee was aware of the situation. There was serious risk
without real harm…
In progressive discipline, the employee
is moved up the ladder if lesser disciplines do not teach him/her anything. A
very serious incident allows the employer to jump to discharge. Here the
Bank saw the events as serious, as they were, but in my view went too far. As
far as I can tell only the one employee learned of it. Reckless, yes,
foolish, yes, dangerous, yes, but essentially a matter between two people who
happened to work in the same place. If there had been work-related pressures
between the two, as for example him threatening a poor appraisal, or if
there had been evidence that more than the one person in the workplace or in
the community had been aware of things and was upset things might be different.
I do not think that the fact per se that he was a supervisor and in a role
model position determines the result automatically.
[Emphasis added]
[35]
Indeed,
the fact that there was no evidence that other colleagues or members of the
public knew about his behaviour provided the basis for the Adjudicator’s
finding that the dismissal was unjustified. He thereby reasoned that the risk
of harm was not a sufficient basis, but that actual harm was required. It is
in this regard that I find that the Adjudicator made an error of law. His
incorrect belief that actual harm was necessary to justify dismissal of Payne
formed the basis of his analysis and rendered his decision unreasonable.
[36]
While the
consequences of the conduct are a consideration, they are not determinative.
The analysis, at its core, must focus on the judgment that underlies the
conduct, and to situate it in the context of the McKinley test. To find
otherwise would be to accord favourable treatment to an employee whose conduct,
although demonstrating equally poor judgment, does not, through circumstance
result in loss of injury to the company and its employees. The focus,
particularly with employees in a management or supervisor capacity, must be on
judgment, and not to the exclusion of consequence.
[37]
In
closing, I note as well inconsistency between the Adjudicator’s
characterization of Payne’s conduct as “reckless, foolish and dangerous” and
his responsibilities as supervisor and the Bank’s lack of confidence in his judgement.
The Adjudicator did not explain how conduct of this nature was consistent with
the ongoing employment relationship. While that conclusion might be open to an
Adjudicator, it could only be reached after measuring the conduct against the
requirements of the position and the employer’s expectations.
2. Was the Adjudicator’s order of
reinstatement reasonable?
[38]
The second
question for review with respect to the reasonableness of the Adjudicator’s
decision is his order for the Bank to reinstate Payne in his position.
[39]
The
Adjudicator was acting under subsection 242(4) of the Code, which reads
as follows:
|
242. (4) Where an Adjudicator decides pursuant to subsection
(3) that a person has been unjustly dismissed, the Adjudicator may, by order,
require the employer who dismissed the person to
(a) pay the person compensation not exceeding
the amount of money that is equivalent to the remuneration that would, but
for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing
that it is equitable to require the employer to do in order to remedy or
counteract any consequence of the dismissal.
|
242. (4) S’il décide que le congédiement était injuste,
l’arbitre peut, par ordonnance, enjoindre à l’employeur :
a) de payer au plaignant une
indemnité équivalant, au maximum, au salaire qu’il aurait normalement gagné
s’il n’avait pas été congédié;
b) de réintégrer le plaignant dans
son emploi;
c) de prendre toute autre mesure
qu’il juge équitable de lui imposer et de nature à contrebalancer les effets
du congédiement ou à y remédier.
|
[40]
The
Adjudicator found that reinstatement was, barring exceptional circumstances,
not a right but a preferred remedy. He found that such “exceptional
circumstances” did not arise in this case. While it is not necessary to deal
with this issue in light of my finding regarding the conclusion on unjust
dismissal, I find that the Adjudicator’s conclusion that reinstatement was an
appropriate remedy was also unreasonable.
[41]
The Bank
submits that the Adjudicator committed the same error as that identified by
Justice Yves de Montigny in Defence Construction Ltd. v Girard, 2005 FC
1177, by considering himself bound to order reinstatement barring exceptional
circumstances. However, I am satisfied that the Adjudicator’s decision in this
case is distinguishable from that in Defence Construction, and the error
pointed out by Justice de Montigny was not made in this case. The relevant
part of Justice de Montigny’s decision states:
In his decision, as we saw earlier, the
adjudicator stated that he had to order Mr. Girard's reinstatement unless he
was persuaded that the relationship of trust with his employer could not be
restored. In saying this, he was relying on the position of Létourneau J.A. and
doing precisely what Desjardins J.A. criticized another adjudicator for in a
subsequent unanimous decision of the Federal Court of Appeal. Here is what she
wrote in this regard in Chalifoux v. Driftpile First Nation, supra, at
paras. 28-29:
The appellant argues (paragraph 34 of her
Memorandum) that the case of Atomic Energy of Canada, supra,
requires an adjudicator to order reinstatement unless he finds that the bond of
trust between the employer and his fired employee is hopelessly broken.
This, in my view, is not the law. Marceau
J.A., in Atomic Energy of Canada Ltd., supra, is saying in effect that
where the relationship of trust cannot be restored, the adjudicator may, at his
discretion, order compensation in lieu of reinstatement. Marceau J.A. does
not say that an adjudicator must order reinstatement if the relationship of
trust between the parties is intact or can be restored. He says, in
paragraph 12, with regard to the unfair dismissal provisions in the Code, that:
... they certainly do not, and even could
not, go as far as to create a right in the person of the wrongfully dismissed
employee ... They simply provide for reinstatement as a possible remedy that
may be resorted to in proper situations ... It is undisputable, however, on a
mere reading of subsection 242(4) of the Code, than an adjudicator is given
full discretion to order compensation in lieu of reinstatement, if, in his
opinion, the relationship of trust between the parties could not be restored.
[Emphasis in original]
[42]
Thus, the
Adjudicator in Defence Construction found that he must order
reinstatement unless convinced that the trust between the employer and employee
could be restored. There are two errors in this finding—that an adjudicator is
ever required to grant reinstatement (it is, rather, within their discretion),
and that the only factor permitting an adjudicator to withhold reinstatement is
the inability to restore trust (rather, many factors can be considered and
weighed).
[43]
In
contrast, the Adjudicator in this case did not find that he must order
reinstatement unless he found the trust between the Bank and Payne could not be
restored. Rather, he found that, while reinstatement is not a right, it is a
preferred remedy, barring exceptional circumstances. He accurately stated the
law by acknowledging there is no right to reinstatement, but finding
reinstatement preferable. In my view, it is within his discretion as
Adjudicator to prefer the remedy of reinstatement, so long as the relevant
factors are considered.
[44]
In this
case, therefore, the Adjudicator’s error lay not in his statement of the law,
but in his avoidance of one of perhaps the most relevant factors; whether the
trust and confidence between the Bank and Payne had been lost. The Adjudicator
wrote the following on this point:
Most of the bank cases which establish
that they are different form normal ones in that trust is more significant, are
cases of financial default by employees. Here that is not the situation. Thus
trust not to steal is not in issue. Trust to tell the truth is, however. He
denied the affair more than once. Perhaps that was understandable but… I agree
that bank employees may be held to a high standard.
[45]
The
Adjudicator was correct that trust to tell the truth was most definitely in
issue. Yet, the Adjudicator never completed this thought or arrived at its
necessary implication; that this breakdown in trust would make reinstatement an
inappropriate remedy in this case. The Adjudicator’s analysis on this point is
lacking and does not meet the required standard of cogency. He found as fact
that Payne lied more than once, and that Bank supervisors may be held to a high
standard, but then excuses Payne from that principle. No explanation is given,
simply the statement “Perhaps that is understandable but…” That ellipsis does
not explain why the failure to tell the truth and engaging in reckless,
dangerous and foolish conduct did not affect the Bank’s trust and confidence in
him.
[46]
Ultimately,
the error in the Adjudicator’s decision on remedy was the same as his error in
the finding of unjust dismissal; he concluded that Payne deserved a second
chance to learn from his previous discipline. This finding, again, failed to
consider Payne’s misconduct immediately following the Step Three discipline,
and the fact that this misconduct was linked in time and substance to the
misconduct giving rise to the initial discipline.
[47]
Before
concluding on this point, I also note that the Adjudicator did not consider
whether, in ordering that Payne be reinstated, the requisite trust and
confidence necessary to sustain the employment relationship could be
re-established. As discussed, Payne lied twice to Ms. S during the
investigation, he disregarded the direction that he not communicate with other
employees about the investigation until it was concluded, and subsequent to the
corrective order of October 16, 2008 he returned to his previous branch and had
sexual relations with Carter. By not taking into account these factors, the
Adjudicator did not have regard to all relevant considerations in making his
decision on reinstatement.
3. Did the Adjudicator violate
the parties’ right to be heard on the question of remedies?
[48]
Apart
from the question of bias, the only potential violation of procedural fairness
that arises from the parties’ submissions relates to the right to be heard in
the context of the Adjudicator’s decision on remedies.
[49]
While
the parties had not had the chance to make submissions on remedy before the
November 11, 2010 decision of the Adjudicator, Payne is correct in suggesting
that a violation of the right to be heard can be cured by a subsequent hearing
in which the parties are given the opportunity to make submissions on the issue
at hand: McNamara v Ontario (Racing Commission), [1998] OJ No 3238 (CA)
at para 26.
[50]
In
this case, the Adjudicator withdrew his initial decision on remedies and gave
the parties a chance to be heard prior to issuing his final decision. No final
decision had been rendered and the Adjudicator had remained seized of the
matter. This cured any initial violation of procedural fairness that may have
existed. I note that the Adjudicator in fact adjusted his decision somewhat
following receipt of the evidence and submissions. There was no breach of
procedural fairness.
4. Was there a reasonable
apprehension of bias with respect to the Adjudicator?
[51]
The
test for establishing a reasonable apprehension of bias of the decision-maker
was restated by the SCC in R v S (RD), [1997] 3 S.C.R. 484 at para 111: a
reasonable apprehension of bias exists where a reasonable and informed person,
with knowledge of all the relevant circumstances, viewing the matter
realistically and practically, would conclude that the decision maker’s conduct
gives rise to a reasonable apprehension of bias. The decision-maker does not
need to have actually been biased; rather a reasonable apprehension of bias is
sufficient for there to have been a violation of procedural fairness.
[52]
In
determining if there is a reasonable apprehension of bias the Court is to
consider whether an informed person would think that it is more likely than not
that the decision-maker, whether consciously or unconsciously, would not decide
fairly: Committee for Justice & Liberty v Canada (National Energy Board)
(1976), [1978] 1 S.C.R. 369; and R v S (RD), above. Adjudicators are
presumed to be impartial and thus a high standard of proof is required to
establish a reasonable apprehension of bias: R v S (RD), above at para
158.
[53]
In
alleging that there was a reasonable apprehension of bias with respect to the
Adjudicator, the Bank relies on the fact that the Adjudicator did not give the
parties the chance to present evidence with respect to remedy before making his
decision. The Bank suggests that the Adjudicator inferred that Payne would
have learned from a suspension, but failed to seek his testimony on this point,
and that these facts suggest that the Adjudicator was predisposed to a
particular result. In addition, the Bank in effect submits that since the
Adjudicator came to the same conclusion on remedies after hearing submissions
from the parties, he could not reasonably be considered to be impartial.
[54]
I
disagree. While the initial failure to give the parties the opportunity to be
heard on the question of remedies may have resulted in a violation of
procedural fairness, he rectified that potential violation prior to reaching
his final decision. I do not believe that the Bank has offered sufficient
evidence to establish that an informed person would reasonably conclude that
the Adjudicator was unable to decide fairly in this case. An informed observer
would conclude that the lapse in procedural fairness arose by reason of a
genuine misunderstanding and was promptly rectified.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is granted. The decision of the Adjudicator is set aside.
"Donald
J. Rennie"
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