Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 SCR 221

Ellis‑Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4

Ellis‑Don Limited         Appellant

v.

The Ontario Labour Relations Board and

the International Brotherhood of Electrical Workers,

Local 894                                                                                           Respondents

Indexed as:  Ellis‑Don Ltd. v. Ontario (Labour Relations Board)

Neutral citation:  2001 SCC 4.

File No.:  26709.

2000:  February 15; 2001:  January 26.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Administrative law ‑‑ Natural justice ‑‑ Institutional consultations ‑‑ Union filing grievance with labour relations board against contractor for violation of provincial collective agreement ‑‑ First draft of panel’s decision  dismissing grievance ‑‑ Full board meeting discussing draft decision ‑‑ Panel’s final  decision upholding grievance ‑‑ Whether rules of natural justice breached ‑‑ Whether principles governing institutional consultations violated ‑‑ Whether contractor’s failure to ask for reconsideration of decision constitutes bar to judicial review ‑‑ Nature of evidentiary burden on party applying for judicial review because of alleged breach of natural justice.

Administrative law ‑‑ Judicial review ‑‑ Audi alteram partem ‑‑ Union filing grievance with labour relations board against contractor for violation of provincial collective agreement ‑‑ First draft of panel’s decision dismissing grievance ‑‑ Full board meeting discussing draft decision ‑‑ Panel’s final  decision upholding grievance ‑‑ Contractor alleging breach of audi alteram partem rule ‑‑ Whether apprehension of breach sufficient to trigger judicial review.

In 1962, the appellant entered into a collective bargaining agreement to contract or subcontract only to individuals or companies whose employees were members of the affiliated unions of the Toronto Building and Construction Trades Council.  In 1971, the Electrical Contractors Association of Toronto applied to the respondent Board to be certified as a bargaining agent for the electrical contractors of Toronto.  In that accreditation process, the IBEW, Local 353 filed a required document listing all employers for which it claimed bargaining rights but it did not include the appellant’s name. In 1978, when province-wide bargaining was introduced, the bargaining rights of Local 353 were extended to Local 894.   In 1990, Local 894 filed a grievance with the Board alleging that the appellant had subcontracted electrical construction work to non-union subcontractors contrary to the provincial collective agreement.   A three-member panel of the Board heard the grievance.  The appellant argued that Local 353 had abandoned its bargaining rights in part because it omitted the appellant’s name from the document filed in the 1971 accreditation proceedings and Local 894 offered no explanation for the omission. A first draft of the panel’s decision would have dismissed the grievance based on the abandonment of bargaining rights.  However, after a full Board meeting discussed the draft, a majority of the panel found that there had been no abandonment of bargaining rights and upheld the grievance. The appellant applied for judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change, and claimed that there was a breach of natural justice and a violation of the rules governing institutional consultations.  Prior to the hearing of the application for judicial review,  the appellant obtained an order compelling the Chair of the Board, the Vice-Chair who presided over the panel, and the Registrar of the Board to give evidence with respect to the procedures implemented by the Board in arriving at its final decision.  This order was reversed on appeal based upon a finding of statutory testimonial immunity.  The Divisional Court later dismissed the application for judicial review  and the Court of Appeal affirmed the decision.

Held (Major and Binnie JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Arbour and LeBel JJ.:  Institutional consultation ensures consistency in the decisions of an administrative body and does not create an apprehension of bias or lack of independence if the following rules are respected:  (1) the consultation proceeding  cannot be imposed by a superior level authority within the administrative hierarchy; (2) the consultation must be  limited to questions of policy and law; and (3) even on questions of law and policy, the decision‑makers must remain free to make their own decision.  The mere fact that litigated issues are discussed by a full board does not amount to a breach of the audi alteram partem rule.  Any risk of breaching this rule can be addressed by notifying the parties of any new issue addressed in the board meeting and allowing an opportunity to respond.  If these rules are met, then adjudicators may modify a draft decision and a presumption of regularity applies such that a change between a draft and final reasons will not of itself create a presumption that something improper occurred during institutional consultations.

In this case, there is no direct evidence of improper tampering with the decision of the panel.  The only information available is that discussions took place at the full Board meeting and that a change was made in the draft decision.  The final decision discarded the idea that the failure to list the appellant created a rebuttable presumption of abandonment of bargaining rights and stated that the omission merely constituted a factor to be considered in deciding the issue of abandonment.  The change consists in a different conclusion as to the legal consequences to be derived from the facts, which is a pure question of law.  Moreover, it does not constitute the application of an entirely new policy since  the change brought the final decision more in line with a number of cases decided by the Board that made it very difficult to establish an abandonment of bargaining rights.  It would be speculative to argue that the change was prompted by a re-assessment of the particular facts.  Furthermore, a change from a favourable to an unfavourable decision by itself does not demonstrate an apparent failure of natural justice sufficient to justify  judicial review.  In the case of an alleged violation of the audi alteram partem rule, the applicant must establish an actual breach; an apprehended breach is not sufficient to trigger judicial review.  Here, the record does not indicate an actual breach of the audi alteram partem rule.  There is no indication of a change on the facts, of  impropriety or of a violation of the principles governing institutional consultation.  The change in the decision of the panel concerned a matter of law and policy.

This case reveals a tension between the fairness of the process and the principle of deliberative secrecy which plays an important role in safeguarding the independence of administrative adjudicators.  Deliberative secrecy also favours administrative consistency by granting protection to a consultative process.  Without such protection, there could be a chilling effect on  institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency.  Consistency and independence come at the price of a less open process and difficulty in building the evidentiary foundation to prove alleged breaches of natural justice.  However, a court cannot reverse the presumption of regularity simply because of a change in reasons for a decision in the absence of any further evidence.

Although the appellant failed to ask for reconsideration, reconsideration did not constitute an absolute prerequisite to judicial review.

Per Major and Binnie JJ. (dissenting): This appeal tests the limits of the rule that panel members can consult a full board on matters of law or policy but not of fact.  The concept of “policy” has been stretched beyond its breaking point  in this appeal and the principle that “he who hears must decide” should  be vindicated.  IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, should not be interpreted to authorize a full board to micro-manage the output of particular panels to the extent evident in this case.  Compliance with the rules of natural justice raises a legal issue and the standard of review is correctness.

The procedure in this case violated the requirement that a full board can only discuss policy and law.  Although the issue of “abandonment”, when considered in the abstract, has a policy component, the change in the panel’s reasons was a re-assessment of fact.  The Board's jurisprudence has developed the legal and policy content of the concept of abandonment of bargaining rights in terms of active promotion of rights  and it was for the panel to determine in the factual context of this particular case whether this standard was met. The panel made it clear that it considered abandonment to be an issue of fact.  The Board's policy was never in doubt and was defined in the same language in the initial and final decisions.                

The undisputed evidence is that the initial decision held as a fact that the union had abandoned its bargaining rights, the final decision held as a fact that it had not, and the intervening event was the full Board meeting.  The reasonable inference is that factual matters were referred for discussion at the full Board meeting. 

While the finding of testimonial immunity prevents determining the Board's decision-making process, it does not prevent the appellant from establishing a basis for judicial review.  The Board cannot rely on legislation to deny all legitimate access to relevant information and then rely on the absence of the information as a conclusive answer to the complaint.  The difficulties of proof presented in this case should be factored into the evidentiary burden of proof placed on the appellant.

The Ontario Court of Appeal considered the Board's proceedings to be protected by the “presumption of regularity”.  The strength of the evidence necessary to displace this presumption depends on the nature of the case and, having regard to the difficulties of obtaining evidence, the appellant should be held to have discharged its evidentiary onus. The Board has to live with the reasonable inference that the full Board meeting influenced a reversal of fact-driven issues.  There is a public interest in the integrity of decision-making at stake and the appellant has made out a prima facie case for judicial review.  As the Board's procedure violated the principles of natural justice, the resulting order was made without jurisdiction and should be set aside despite the existence of privative clauses.

Cases Cited

By LeBel J.

Applied:  IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Canada (Director of Investigation and Research) v. Southam Inc.,  [1997] 1 S.C.R. 748; referred to: Khan v. College of Physicians & Surgeons of Ontario (1992), 94 D.L.R. (4th) 193; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; Lorne’s Electric, [1987] OLRB Rep. 1405; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Valente v. The Queen, [1985] 2 S.C.R. 673; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.

By Binnie J. (dissenting)

IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Marvel Jewellery Ltd., [1975] OLRB  Rep. 733; Accomodex Franchise Management Inc., [1993] OLRB Rep. 281; R. Reusse Co., [1988] OLRB Rep. 523; Vieczorek v. Piersma (1987), 36 D.L.R. (4th) 136; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Université du Québec à Trois‑Rivières v. Laroque, [1993] 1 S.C.R. 471; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602.

Statutes and Regulations Cited

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.

Labour Relations Act, 1995, S.O. 1995, c. 1, ss. 9(1), 17, 69, 76, 114(1), 116, 117.

Labour Relations Act, R.S.O. 1990, c. L.2, ss. 108, 111 [am. 1992, c. 21, s. 45].

Authors Cited

Adams, George W.  Canadian Labour Law, 2nd ed.  Aurora, Ont.:  Canada Law Book (loose‑leaf updated May 2000, release 13).

Brown, Donald J. M., and John M. Evans.  Judicial Review of Administrative Action in Canada, vol. 2.  Toronto:  Canvasback (loose‑leaf updated July 2000, release 2‑2000).

Hawkins, R. E.  “Behind Closed Doors II:  The Operational Problem — Deliberative Secrecy, Statutory Immunity and Testimonial Privilege” (1996), 10 C.J.A.L.P. 39.

Janisch, H. N. “Consistency, Rulemaking and Consolidated‑Bathurst” (1991), 16 Queen’s L.J. 95.

Lemieux, Denis.  “L’équilibre nécessaire entre la cohérence institutionnelle et l’indépendance des membres d’un tribunal administratif:  Tremblay c. Québec (Commission des affaires sociales)” (1992), 71 Can. Bar Rev. 734.

Mullan, David J.  “Policing the Consolidated‑Bathurst Limits — Of Whistleblowers and Other Assorted Characters” (1993), 10 Admin. L.R. (2d) 241.

Sack, Jeffrey, C. Michael Mitchell and Sandy Price.  Ontario Labour Relations Board Law and Practice, vol. 1, 3rd ed.  Markham, Ont.:  Butterworths (loose‑leaf updated August 2000, release 14).

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed.  Toronto:  Butterworths, 1999.

Wade, William, Sir, and Christopher Forsyth.  Administrative Law, 7th ed.  Oxford:  Clarendon Press, 1994.

APPEAL from a judgment of the Ontario Court of Appeal (1998), 38 O.R. (3d) 737, 108 O.A.C. 301, 6 Admin. L.R. (3d) 187, affirming a decision of the Divisional Court (1995), 89 O.A.C. 45, [1995] O.J. No. 3924 (QL), dismissing  the appellant’s application for judicial review.  Appeal dismissed, Major and Binnie JJ. dissenting.

Earl A. Cherniak, Q.C., and Kirk F. Stevens, for the appellant.

Sheila R. Block and Andrew E. Bernstein, for the respondent Ontario Labour Relations Board.

Alan M. Minsky, Q.C., and Susan Philpott, for the respondent International Brotherhood of Electrical Workers, Local 894.

The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Iacobucci, Bastarache, Arbour and LeBel JJ. was delivered by

LeBel J. –

I.  Introduction

1                                   The main issue raised by this appeal is whether the rules of natural justice were breached by the Ontario Labour Relations Board (“OLRB” or “Board”) when a three-member panel of the Board upheld a grievance filed by the respondent International Brotherhood of Electrical Workers, Local 894 (“Union” or “IBEW, Local 894”) against the appellant Ellis-Don Limited.  The question of the breach of the rules of natural justice arose when the appellant learned that a first draft of the decision would have dismissed the grievance and that a full Board meeting had been held during which this draft was discussed.  The appellant suggests that the differences between the draft and the final decision that allowed the grievance are the result of a change in the assessment of the facts.  Ellis-Don alleges that this constitutes sufficient evidence that factual matters were discussed at the full Board meeting, in violation of the rules established by this Court in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282.

II.  The Facts

2                                          This matter has a long history and is closely tied to the evolution of the labour relations system in the Ontario construction industry and to its move towards a more centralized collective bargaining system.  In 1962, Ellis-Don was a very active general contractor, but was entering the Toronto market for the first time. A system of local collective bargaining prevailed in the construction industry at this time.  Ellis-Don entered into a “Working Agreement” with the Toronto Building and Construction Trades Council (“Council”), in which Ellis-Don agreed to employ only members of the unions affiliated with the Council and to contract or subcontract only to individuals or companies whose employees were members in good standing in the unions affiliated with the Council.  The Working Agreement provided for automatic renewals unless notice of termination was given (such notice was never given). 

3                                   Local 353 of the International Brotherhood of Electrical Workers (“IBEW, Local 353”) was affiliated with the Council.  It was and still is the IBEW local with jurisdiction in the Toronto area (the respondent Union, Local 894, was not yet a member of the Council in 1962).  

4                                          In 1971, the Electrical Contractors Association of Toronto applied to the OLRB to be certified as a bargaining agent for the electrical contractors of Toronto.  According to the regulations then in force, upon filing of that application by the employers’ association, the IBEW, Local 353 had to list the employers in respect of which they claimed to hold bargaining rights on a form known as Schedule F. 

5                                          IBEW, Local 353 failed to list Ellis-Don as an employer in the form it filed in response to the application of the Electrical Contractors Association of Toronto.

6                                   In 1978, there was a move towards a province-wide bargaining scheme in the industry.  The jurisdiction of the Council was extended to include Central Ontario in 1979.  Local 894 of the IBEW became affiliated with the Council.  By amending legislation, the bargaining rights of the IBEW, Local 353 in respect of Ellis-Don’s employees were to be extended to Local 894, provided those bargaining rights had not been abandoned by Local 353 prior to the introduction of the province-wide bargaining scheme.  

7                                   On January 12, 1990, the Union filed a grievance with the Board, alleging that the appellant had subcontracted electrical construction work to non-union electrical subcontractors, contrary to the provisions of the provincial collective agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario, the IBEW, and the IBEW Construction Council of Ontario representing its affiliated local unions.

8                                   A three-member panel of the OLRB presided over by Vice-Chair Susan Tacon heard the grievance.  The appellant did not dispute that it had subcontracted some work to non-union electrical contractors.  However, it argued that it was not bound by the provincial agreement because the IBEW, Local 353 had abandoned its bargaining rights prior to the introduction of the province-wide bargaining scheme, when it failed to include the name of Ellis-Don in Schedule F of the accreditation proceedings of the Electrical Contractors Association of Toronto.  According to Ellis-Don, this omission and the IBEW, Local 894's failure to call evidence to explain it,  demonstrated either that the IBEW, Local 894 in fact recognized that it did not hold bargaining rights on behalf of the appellant’s employees or that these bargaining rights had been abandoned.     

9                                   After the hearing of the grievance, a draft decision was prepared by Vice-Chair Tacon.  This draft proposed to dismiss the grievance on the ground that  the IBEW, Local 353 had failed to list Ellis-Don on Schedule F at the time of the certification proceedings of the Electrical Contractors Association of Toronto and was thus deemed to have abandoned its bargaining rights with respect to the appellant:

Local [8]94, the applicant herein, called no evidence to explain the failure of Local 353 to include Ellis-Don on schedule F, as would be expected if the union in the accreditation application thought it possessed bargaining rights vis-à-vis Ellis-Don.  Absent an explanation, the most reasonable inference is that the union in the accreditation application assumed it did not possess such bargaining rights in 1971, when the accreditation application was filed.  In effect, the union was asserting it did not have bargaining rights for Ellis-Don.  The respondent union in the accreditation application must be taken to have abandoned whatever bargaining rights it possessed as against Ellis-Don at the latest by that point.  The mere use by Ellis-Don of union electrical subcontractors is not tantamount to granting voluntary recognition anew once the bargaining rights created by the working agreement were extinguished.

The consequences of the Board’s finding that bargaining rights had been abandoned by Local 353 IBEW prior to 1978 is that that trade union cannot “plug into” the province‑wide scheme so that the issue of abandonment post 1978 does not arise.  Local [8]94, the applicant in the instant grievance referral, relies on that province‑wide scheme to acquire the bargaining rights which it seeks to enforce against Ellis‑Don.  In the Board’s view, no such rights were held by Local 353 in 1978 so that the legislation in 1978 and the subsequent amendments could not extend any bargaining rights to Local [8]94.  [Emphasis added.]

10                               The draft decision was circulated among all the members of the OLRB and Vice-Chair Tacon called a full Board meeting to discuss its implications.  It appears that this meeting was held on January 27, 1992. 

11                               On February 28, 1992, the Board released its final decision, upholding the grievance (Board member Trim dissenting):  [1992] OLRB Rep. 147.  The majority found that there had been no abandonment of bargaining rights by the Union in spite of the omission of Ellis-Don from schedule F (at para. 54):

The absence of evidence to explain the omission of Ellis-Don from the schedule F filed by Local 353, IBEW in the accreditation application is of concern to the Board.  The question for the Board is whether this omission, of itself, is sufficient, in the context of all the other circumstances, to cause the Board to conclude that Local 353 had abandoned the bargaining rights it had earlier obtained.  The omission of Ellis‑Don’s name is not inconsistent with abandonment and, thus, may signify what respondent counsel asserts.  However, that omission is also consistent with an assumption on the part of the Local that the accreditation application affected only specialty contractors or that schedule F speaks only to employers for whom the Local held bargaining rights but who had had employees in the past (albeit not within the previous year).  It appears (and there is no cogent evidence to suggest otherwise) that the employer association represented specialty electrical contractors, not general contractors.  In that context, the name of Ellis‑Don may have been omitted, in the respondent union’s reply, as apparently were the names of other general contractors who had signed the working agreement, to reflect the framing of the original application.  The question is not what is the most reasonable or a reasonable inference from the omission of Ellis‑Don’s name but whether the omission signifies abandonment.  In the Board’s opinion, it is more probable than not that the omission of Ellis‑Don’s name from schedule F did not reflect an abandonment of bargaining rights.  As well, the context of a consistent pattern of Ellis‑Don’s subletting electrical work to "union" contractors prior  to the accreditation application, although not necessarily conclusive proof of the existence of bargaining rights (see paragraph 46 above), cannot be ignored.  Given the Board's finding that the working agreement was duly executed by the parties and constituted a series of voluntary recognition agreements, including the voluntary recognition of Local 353, and given that the working agreement was never terminated but, rather, that at least with respect to the subcontracting of electrical work, Ellis‑Don fully complied with that agreement for many years with Ellis‑Don receiving the advantages of the working agreement during that period, the Board is not satisfied, as a matter of fact, that the bargaining rights of Local 353 were abandoned because of the omission of Ellis‑Don’s name from schedule F.  In short, considering all the circumstances, the Board does not find that Local 353 abandoned its bargaining rights prior to the introduction of province‑wide bargaining.  [Emphasis added.]

12                               A few weeks later, in March 1992, a retired member of the OLRB handed over to Ellis-Don a copy of the draft that had been circulated to all members of the Board.  From the same source, Ellis-Don also learned that a full Board meeting had been held at the request of Vice-Chair Tacon to consider the draft decision.  

13                               Ellis-Don claimed that there was a breach of natural justice and that  jurisprudential rules governing institutional consultations had been violated.  Without asking for reconsideration of the decision, it applied for judicial review.  According to the appellant, the change between the draft decision and the arbitration award ultimately released by the Board was of a factual nature as opposed to a legal or policy change.  This indicated that facts had been discussed at the full board meeting, contrary to the principles established by this Court in Consolidated-Bathurst, supra.

14                               Prior to the hearing of the application for judicial review, the appellant sought an interlocutory order to stay the decision of the OLRB;  it also requested that several members of the Board be summoned for examination before an official examiner and that certain documents be produced.  In July 1992, Steele J., of the Ontario Divisional Court, granted an order compelling members of the Board to appear before an official examiner, but refused to stay the decision and to order the production of documents:  (1992), 95 D.L.R. (4th) 56.  In January 1994, a three-judge panel of the Divisional Court reversed the decision of Steele J. and decided that the members of the Board could not be compelled to appear before an official examiner:  (1994), 16 O.R. (3d) 698.  The Divisional Court based its decision on the common law rule respecting the compellability of administrative tribunal members and on s. 111 of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 (now S.O. 1995, c. 1, s. 117).  Leave to appeal this decision was denied by the Ontario Court of Appeal in June 1994 and by the Supreme Court of Canada in January 1995, [1995] 1 S.C.R. vii.

15                               On December 20, 1995, the Divisional Court dismissed the appellant’s application for judicial review.  A unanimous Court of Appeal confirmed this judgment in April 1998.    

III.  Relevant Statutory Provisions

16                               Labour Relations Act, 1995, S.O. 1995, c. 1

114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [Previously s. 108 of the Labour Relations Act, R.S.O. 1990, c. L.2.]

117.  Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

IV.  Judicial History

A.  Divisional Court (Decision on the Application for Judicial Review) (1995), 89            O.A.C. 45

17                            The court dismissed the application for judicial review.  Adams J., writing for the panel, found that the difference between the draft and the final decisions reflected a change in the applicable policy or legal standard, but not a new determination of the facts.  Adams J. noted that the fact that IBEW, Local 353 had omitted Ellis-Don’s name from Schedule F of the accreditation proceedings of the Electrical Contractors Association of Toronto and the fact that this association represented specialty electrical contractors, not general contractors, remained unchanged between the draft decision and the final award.  For Adams J., the Board simply had to decide whether the omission, in and of itself, dictated the conclusion of abandonment.  He wrote (at p. 55):

This determination had a substantial and obvious policy component, notwithstanding the particular manner in which the panel expressed itself.  In this sense, it involved a matter which could be addressed at a level of principle without offending the requirements of natural justice.

18                            Adams J. listed several policy options open to the Board: (i) the omission could constitute per se evidence of abandonment; (ii) the omission could give rise to a rebuttable presumption of abandonment (thus requiring an explanation from the IBEW, Local 894); (iii) the omission could constitute a factor to be considered along with the rest of the evidence before the Board; or (iv) the omission could be irrelevant to the issue of abandonment.  Adams J. concluded that the Board had determined that the omission was a factor to be considered, without being determinative in the circumstances, even in the absence of an explanation from the IBEW, Local 894.

19                            Adams J. noted that the conclusion of the arbitration award was consistent with the unlikelihood that the Union intended to abandon its bargaining rights and with the case law and policy of the Board which required unequivocal evidence that a trade union has “slept on its rights” (p. 56).  Accordingly, Adams J. found that there was no basis to infer that members of the Board who were not on the hearing panel might have participated in the panel’s fact-finding.  Adams J. referred to the decision of the Ontario Court of Appeal in Khan v. College of Physicians & Surgeons of Ontario (1992), 94 D.L.R. (4th) 193, to support the idea that modern decision-making cannot be made in complete isolation. Adams J. explained that, if the appellant suspected that there had been a discussion of factual issues at the full Board meeting, it should, at least as a matter of courtesy, have given the Board an opportunity to explain itself by seeking reconsideration. Finally, in the opinion of Adams J., the decision of the Board  was not patently unreasonable.

B.   Court of Appeal (1998), 38 O.R. (3d) 737

20                            A unanimous Court of Appeal dismissed the appeal.  It held that the appellant had not established that the change in the panel’s decision was the consequence of interference by the full Board in the panel’s fact-finding process.  A review of the record revealed that the possibility of interference by the full Board on factual matters amounted to little more than speculation.  The court was satisfied that the change was the result of the application of a different legal standard to the facts introduced in evidence before the panel.

21                            The court held, at p. 740, that the panel had not speculated on the intention of the IBEW, Local 353 in omitting the appellant’s name from Schedule F: 

The fact of the omission, that the employer association involved in the application represented special electrical contractors, not general contractors, that Ellis-Don is a general contractor who had signed the provincial working agreement, that other general contractors who had signed the agreement were also omitted from Schedule F, that Ellis-Don obtained the benefit of the agreement and that it had used only unionized electrical contractors until the grievance gave rise to this dispute, were all in evidence and were not speculation.

22                            The Court of Appeal also found that the Divisional Court had correctly refused to draw an adverse inference from the Board’s refusal to disclose the internal deliberations which took place at the full Board meeting.  According to the Court of Appeal, a presumption of regularity applied, as there was no evidence that the procedure at the full Board meeting in question departed from its usual practice, whereby discussion was limited to the policy implications of a draft decision.  The mere fact that the construction panel had changed its conclusion could not give rise to an inference that the Board had acted improperly during the consultation process.

V.  The Issues

23                                        This appeal does not challenge the legality of an institutional consultation process within administrative bodies like the OLRB.  Moreover, there has been no suggestion that the Court should revisit the rules established in Consolidated-Bathurst, supra, and Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952.  At issue in this appeal is whether the Board complied with these rules when it held the full Board meeting and discussed the grievance against Ellis-Don.  This requires us to discuss the nature of the evidentiary burden on a party applying for judicial review because of an alleged breach of natural justice. 

24                            The appellant submits several closely linked propositions.  First, it asserts that the change in the final decision was of a factual nature and that this is sufficient to prove that factual matters were discussed at the full Board meeting.  The appellant also contends that the Court should intervene as the change raises a reasonable apprehension of a breach of natural justice.  It suggests that the refusal of the Board to offer evidence about its internal decision proceedings gave rise to the application of a presumption of irregularity that would permit courts to imply that there has been improper tampering with the evidence during the full Board conference. 

25                            The Court also has to decide whether the appellant’s failure to ask for reconsideration of the Board’s decision constitutes a bar to judicial review.

VI.  Analysis

A.  The Rules Concerning Institutional Consultation

26                            The problems relating to procedures of institutional consultation  within administrative bodies have been thoroughly canvassed in the reasons of Gonthier J. in  Consolidated-Bathurst, supra, and Tremblay, supra.  A mere reminder of the principles set out in these decisions will suffice here to deal with the main legal issues presented by this case.

27                            In the Consolidated-Bathurst case, the legality of institutional consultation procedures within administrative bodies had been put in doubt for two reasons.  First, it was argued that these procedures created a reasonable apprehension of bias and lack of independence on the part of the adjudicators.  The members of an administrative body hearing a case might be subject to undue pressure from other colleagues or from their hierarchical superiors.  These pressures would come from persons who would not have heard the evidence nor the arguments of the parties, and would nevertheless be in a position to influence the final decision.  Second, it was suggested that these consultations also breached the audi alteram partem rule, as new arguments might be raised during the full Board discussion without being communicated to the parties.

28                            Writing for the majority, Gonthier J. recognized the legitimacy of institutional consultations to ensure consistency between decisions of different adjudicators or panels within an administrative body.  Indeed, the critical nature of this procedure was underlined later by the judgment of this Court in Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.  Writing for a unanimous Court, L’Heureux-Dubé J. observed that ensuring the consistency of decisions of administrative bodies or tribunals was not a proper function of judicial review by superior courts.  Inconsistencies or conflicts between different decisions of the same tribunal would not be reason to intervene, provided the decisions themselves remained within the core jurisdiction of the administrative tribunals and within the bounds of rationality.  It lay on the shoulders of the administrative bodies themselves to develop the procedures needed to ensure a modicum of consistency between its adjudicators or divisions (Domtar, supra, at p. 798).

1. Apprehension of Bias or Lack of Independence

29                            In Consolidated-Bathurst, supra, Gonthier J. examined whether the existence of this kind of institutional consultation procedure in itself created an apprehension of bias or lack of independence as Sopinka J. feared in his dissent.  According to Gonthier J., such a procedure would not of itself raise such an apprehension, provided it was designed to safeguard the ability of the decision-maker to decide independently both on facts and law in the matter.  Gonthier J. laid down a set of basic principles to ensure compliance with the rules of natural justice.  First, the consultation proceeding could not be imposed by a superior level of authority within the administrative hierarchy, but could be requested only by the adjudicators themselves.  Second, the consultation had to be limited to questions of policy and law.  The members of the organization who had not heard the evidence could not be allowed to re-assess it.  The consultation had to proceed on the basis of the facts as stated by the members who had actually heard the evidence.  Finally, even on questions of law and policy, the decision-makers had to remain free to take whatever decision they deemed right in their conscience and understanding of the facts and the law, and not be compelled to adopt the views expressed by other members of the administrative tribunal.  Provided these rules were respected, institutional consultation would not create a reasonable apprehension of bias or lack of independence. 

30                                        It is noteworthy that also at issue in the Consolidated-Bathurst case were the consultation proceedings followed within the OLRB.  The majority decided that such procedures did not create a reasonable apprehension of bias or lack of independence. 

31                            The principles developed in Consolidated-Bathurst were also applied in the later case of Tremblay, supra.  In the Tremblay case, the Supreme Court of Canada considered that the consultation procedures were imposed from above on the decision- makers and that they were so formalized that they became binding on the triers of facts, therefore compromising their independence.

2. Audi Alteram Partem

32                            The other issue in Consolidated-Bathurst concerned the impact of the consultation proceeding on the application of the audi alteram partem rule.  The reasons of Gonthier J. conceded that there existed risks in that regard, but held that they could be addressed by ensuring that the parties be notified of any new issue raised during the discussion and allowed an opportunity to respond in an effective manner.  The mere fact that issues already litigated between the parties were to be discussed again by the full Board would not amount to a breach of the audi alteram partem rule. 

33                            Provided these rules were complied with, the adjudicators retained the right to change their minds and to modify a first draft of a decision.  Such changes would not create a presumption that something improper had occurred during the consultation process.  In the absence of other evidence to the contrary, the presumption of regularity of administrative procedures would apply.

B.   Application to the Case at Hand

34                            These principles, as set out in Consolidated-Bathurst, supra, and applied in Tremblay, supra, govern the present case.  As the appellant bears the burden of establishing that the rules of natural justice have been breached, so it must demonstrate that there was inappropriate tampering with the assessment of evidence.

1.  Evidentiary Problems

35                            The appellant faced difficult evidentiary problems when it launched its application for judicial review.  The only facts it knew were that a draft decision dismissing the grievance had been circulated, that a full meeting of the OLRB had been called at the request of Vice-Chair Susan Tacon, that such a meeting had indeed been held and that the final arbitration award upheld the grievance.

36                            The final decision was silent as to what had happened during the full Board meeting.  As stated above, there has been no request for reconsideration, and thus, perhaps, an opportunity was lost to obtain information on the consultation process within the OLRB.  From these facts, there is no direct evidence of improper tampering with the decision of the panel.  Ellis-Don sought to strengthen its case by obtaining evidence of what had happened during the consultation process.  The appellant tried to get this evidence through an interlocutory motion to examine certain members and officers of the OLRB.  After the dismissal of its motion by the Divisional Court, Ellis-Don found itself in an impasse, as it could not obtain evidence of the process followed in the particular case from the OLRB through the interrogation of its members or officers.

37                            The appellant then tried a new tack during the hearing of its application for judicial review.  The purpose of its argument remained the same: to establish an improper interference by the full Board in the decision of the panel.  Thus, it sought to convince the courts that the change in the decision was of a factual nature and that it could properly be implied that a discussion of the facts had occurred at the full Board meeting.  It also suggested that the threshold for judicial review in such a case was an apprehension of breach of natural justice and that there was no need to establish an actual breach of the audi alteram partem rule.  It argued that such an apprehended breach of natural justice had been established through a displacement of the presumption of regularity of the administrative proceedings of the Board.  According to the appellant, it fell to the respondents to establish that the proceedings had not been tainted by any breach of natural justice.  Absent evidence to this effect, the Court should find that there was a breach of natural justice, that the Board had been biased and that the audi alteram partem rule had been violated.   This unrebutted presumption would justify granting the application for judicial review and quashing the decision of the Board. 

2.   The Nature of the Change

38                            The appeal rests on the argument that there was a change in the assessment of facts.  It stressed that the only explanation for the change was the Board’s acceptance of the factual theory advanced by the Union that had originally been rejected in the draft. Starting from that premise, Ellis-Don argued that in the circumstances, there were enough elements to reverse the presumption of regularity of the proceedings of the Board and to conclude that factual matters had been discussed at the full Board meeting.  Thus, we first have to examine the nature of the change in question.

39                            From the outset, it must be conceded that the distinction between mixed questions of fact and law as opposed to pure questions of law is difficult and that the lines between them are often blurred.  Moreover, a consultation procedure will not take place in a purely abstract manner.  Even if the factual background is accepted, it will be considered and the discussion will take place in relation to it.  Sometimes intricate questions may arise.  There may be discussions of the legal characterization of facts or of fact selection itself.  These are especially likely when a critical part of the evidence has been disregarded and when this error might change the whole appreciation of the law applicable to the case.

40                            In Canada (Director of Investigation and Research) v. Southam Inc.,  [1997] 1 S.C.R. 748, an administrative law case, Iacobucci J. examined the difficulty of drawing distinctions between questions of law and fact and attempted to define them as follows (at paras. 35-37):

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.  A simple example will illustrate these concepts.  In the law of tort, the question what “negligence” means is a question of law.  The question whether the defendant did this or that is a question of fact.  And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact.  I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult.  On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

For example, the majority of the British Columbia Court of Appeal in Pezim, supra, concluded that it was an error of law to regard newly acquired information on the value of assets as a “material change” in the affairs of a company.  It was common ground in that case that the proper test was whether the information constituted a material change; the argument was about whether the acquisition of information of a certain kind qualified as such a change.  To some extent, then, the question resembled one of mixed law and fact.  But the question was one of law, in part because the words in question were present in a statutory provision and questions of statutory interpretation are generally questions of law, but also because the point in controversy was one that might potentially arise in many cases in the future:  the argument was about kinds of information and not merely about the particular information that was at issue in that case.  The rule on which the British Columbia Securities Commission seemed to rely – that newly acquired information about the value of assets can constitute a  material change – was a matter of law, because it had the potential to apply widely to many cases.

By contrast, the matrices of facts at issue in some cases are so particular, indeed so unique, that decisions about whether they satisfy legal tests do not have any great precedential value.  If a court were to decide that driving at a certain speed on a certain road under certain conditions was negligent, its decision would not have any great value as a precedent.  In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact.  See R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at pp. 103-108.  Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future.  [Emphasis added.]

(See also, in a criminal law context, the remarks of Arbour J. in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, at paras. 21-22.)

41                            In the case at hand, it appears the change in the decision of the panel concerned a matter of law and policy.  The general question in issue was the problem of abandonment of bargaining rights.  The factual situation as such was well established.  It was not disputed that when requested to list the employers for whose employees it held bargaining rights, the IBEW, Local 353 omitted the name of Ellis-Don.  It was also conceded that the Union had not offered any evidence at the hearing before the panel as to the reasons for this failure.

42                            The position taken in the first draft was that the failure to list Ellis-Don in Schedule F created a rebuttable presumption of abandonment.  The final decision discarded the idea that there was such a presumption and stated that the omission of Ellis-Don’s name from the schedule merely constituted one of the factors to be considered in deciding the issue of abandonment.  The change consists in a different conclusion as to the legal consequences to be derived from the facts, which is a pure question of law.  Moreover, it does not constitute the application of an entirely new policy: the change in the final decision brought it more in line with a number of cases decided by the OLRB that made it very difficult to establish an abandonment of bargaining rights.  (See, for example, Lorne’s Electric, [1987] O.L.R.B. Rep. 1405, at pp. 1408-10).

43                            The appellant also argued that the change was prompted by a re-assessment of the particular facts and that it did not really concern a matter of policy and law.  On the record before us, this amounts to little more than speculation.

3.  The Standard for Judicial Review

44                            The appellant relies heavily on the following statement of Gonthier J. in Tremblay, supra, at pp. 980-81:

A litigant who sees a “decision” favourable to him changed to an unfavourable one shall not think that there has been a normal consultation process. . . . 

45                            This comment is quoted out of context.  It would be useful to quote at length the paragraph from which it was excerpted.

Finally, I would note that the procedure of early signature of draft decisions by members and assessors followed in the case at bar seems to me unadvisable.  Although this procedure may be practical, it only adds to the appearance of bias when a decision maker decides to alter his opinion after free consultation with his colleagues.  A litigant who sees a “decision” favourable to him changed to an unfavourable  one will not think that there has been a normal consultation process; rather, he will have the impression that external pressure has definitely led persons who were initially favourable to his case to change their minds.

In this paragraph, it appears that Gonthier J. did not state a principle of law, but merely commented on the effect of an administrative practice that required the signature of draft reasons.

46                             According to the appellant, a change from a favourable to an unfavourable result demonstrates an apparent failure of natural justice.  The appellant asserts that its burden is limited to the demonstration of an apparent failure of natural justice and that this should suffice to justify the judicial review of the decision of the Board.  The appellant would not have to establish an actual breach.

47                            Such a test was never adopted by the law.  Breaches of natural justice are grounds for judicial review, but this complex notion covers a number of very diverse situations, particularly bias and lack of independence of the adjudicator and the audi alteram partem rule in all its variations.

48                            The appellant tries to extend to every case of breach of natural justice an approach limited to the problem of bias and lack of independence.  The test of appearance of a breach was developed for the application of the concept of bias mainly in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394.  This test was reaffirmed in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689, which dealt with reasonable apprehension of lack of independence.  In the case of bias, the courts faced the problem of establishing the state of mind of the decision-maker, evidence of which is often difficult to apprehend directly.  Therefore, the test adopted had to be usually limited to the demonstration of a reasonable apprehension that the mind of the adjudicator might be biased.   If a requirement to establish actual bias had been adopted as a general principle, judicial review for bias would have been a rare event indeed. 

49                            In the case of an alleged violation of the audi alteram partem rule, even if it can be difficult to obtain evidence to that effect in certain cases, the applicant for judicial review must establish an actual breach. There is no authority for the proposition put forward by the appellant that an “apprehended” breach is sufficient to trigger judicial review.  In Consolidated-Bathurst, supra, the reasons of Gonthier J. clearly distinguished the two problems:  bias and audi alteram partem.  On the one hand, Gonthier J. examined whether the process of institutional consultation created an apprehension of bias.  While reviewing the application of the audi alteram partem rule, he never indicated that an apprehension of breach was sufficient to justify intervention.  Indeed, he found that the record before the Court revealed no evidence that any other issues or arguments had been discussed at the full Board meeting.  Therefore, he held that the appellant had failed to prove a breach of the audi alteram partem rule: see Consolidated-Bathurst, at pp. 339-40.  Thus, one has to look at the nature of the natural justice problem involved to determine the threshold for judicial review.  Consolidated-Bathurst does not stand as authority for the assertion that the threshold for judicial review in every case of alleged breach of natural justice is merely an apprehended breach of natural justice.

50                            In support of its argument, the appellant also invoked the ruling of this Court in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, where Dickson J. (as he then was) wrote at p. 1116:

We [i.e., the Court] are not concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.

However, this excerpt does not have the meaning ascribed to it by the appellant.  In  Kane, the applicant had established an actual breach of the audi alteram partem rule: during the deliberations of the Board of Governors of UBC on a disciplinary matter, the President of the University had provided the decision-makers  with supplementary facts in the absence of the parties.  Dickson J., writing for the majority, simply said that once a breach of the audi alteram partem rule had been made out, it was not necessary to prove that this breach had caused an actual prejudice to the litigant, but only the likelihood of it.

51                            In the present case, the Court must apply the normal standards of judicial review in matters involving the audi alteram partem rule.  In support of its allegation of a breach of the audi alteram partem rule, Ellis-Don had to demonstrate an actual breach.  As stated above, it could not get directly at the evidence after the dismissal of its interlocutory motion.  The record as such does not indicate any  breach of this nature.  The only information available is that discussions took place at the full Board meeting and that a change was made on a question of law and policy in the draft decision.  This is not sufficient to warrant judicial review.

52                            The case reveals a tension between the fairness of the process and the principle of deliberative secrecy.  The existence of this tension was conceded by Gonthier J. in Tremblay, supra, at pp. 965-66.  Undoubtedly, the principle of deliberative secrecy creates serious difficulties for parties who fear that they may have been the victims of inappropriate tampering with the decision of the adjudicators who actually heard them.  Even if this Court has refused to grant the same level of protection to the deliberations of administrative tribunals as to those of the civil and criminal courts, and would allow interrogation and discovery as to the process followed, Gonthier J. recognized that this principle of deliberative secrecy played an important role in safeguarding the independence of administrative adjudicators.

53                            Deliberative secrecy also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who have heard the case and the members who have not, within the rules set down in Consolidated-Bathurst, supra.  Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency.

54                            Satisfying those requirements of consistency and independence comes undoubtedly at a price, this price being that the process becomes less open and that litigants face tough hurdles when attempting to build the evidentiary foundation for a successful challenge based on alleged breaches of natural justice (see, e.g., H. N. Janisch, “Consistency, Rulemaking and Consolidated-Bathurst” (1991), 16 Queen’s L.J. 95; D. Lemieux, “L’équilibre nécessaire entre la cohérence institutionnelle et l’indépendance des membres d’un tribunal administratif: Tremblay c. Québec (Commission des affaires sociales)” (1992), 71 Can. Bar Rev. 734).  The present case provides an excellent example of those difficulties. 

55                            After the dismissal of its interlocutory motion, the appellant could not examine the officers of the Board on the process that had been followed.  In the absence of any further evidence, this Court cannot reverse the presumption of regularity of the administrative process simply because of a change in the reasons for the decision, especially when the change is limited on its face to questions of law and policy, as discussed above.  A contrary approach to the presumption would deprive  administrative tribunals of the independence that the principle of deliberative secrecy assures them in their decision-making process.  It could also jeopardize institutionalized consultation proceedings that have become more necessary than ever to ensure the consistency and predictability of the decisions of administrative tribunals.

4.  Conclusion on the Grounds for Judicial Review

56                            The record shows no indication of a change on the facts, of impropriety or of a violation of the principles governing institutional consultation.  Any intervention would have to be based on mere speculation about what might have happened during the consultation with the full Board. The judicial review of a decision of an administrative body may not rest on speculative grounds.  Thus, the Divisional Court and the Court of Appeal of Ontario correctly applied the rules governing judicial review when they dismissed the appellant’s application.

5.  Failure to Ask for Reconsideration

57                            There was also some discussion in this Court about the failure of the appellant to ask for reconsideration.  However, even the Board conceded that in the circumstances, reconsideration did not constitute an absolute prerequisite to judicial review.  In the present case, it might have been a good tactical move that would perhaps have elicited some information from the Board about its consultation process, but the principles of judicial review did not require the use or exhaustion of this particular remedy.  Of course, in some cases,  failure to seek reconsideration might be a factor to be weighed by superior courts when determining whether to grant a remedy in an application for judicial review. 

VII.  Conclusion

58                            For these reasons, I would dismiss the appeal with costs.

The reasons of Major and Binnie JJ. were delivered by

59                            Binnie J. (dissenting)  –  It is occasionally observed that the most important person in the hearing room is the party that has just lost a case.  Whatever may be the loser's bitterness or incredulity at the outcome, the overriding imperative is that the outcome was –  and was seen to be – reached impartially under a fair procedure.  That is the overriding issue in this appeal.

60                            The appellant, a general contractor in the Ontario construction industry, claims that 30 years ago the respondent union abandoned whatever bargaining rights it held for the employees of the appellant and its subcontractors.  It complains that a panel of the Ontario Labour Relations Board that had heard weeks of evidence and argument and which reached an initial decision in the appellant's favour, subsequently abdicated its adjudicative responsibilities in favour of a full Board meeting.  The Chair of the Board, the Alternate Chair, the 20 Vice-Chairs and about 40 other members were invited to the meeting to discuss the decision before its release in the absence of the parties whose interests were directly at stake.  The appellant was given no opportunity to address evidence or argument to this wider audience. 

61                            The appellant's complaint is thus that a decision in its favour, based on what the Board itself characterized as an issue of fact, was changed to one against it immediately following a full Board meeting called specifically to consider the reasons for decision in this specific case.  It further complains that the Board resisted every legal avenue for the appellant to shed further light on how or why that change occurred.  The appellant says it has been unfairly dealt with.

62                            When this Court decided in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, that panel members could consult with the full Board on matters of policy as opposed to issues of fact, it was feared in some quarters that the integrity of administrative decision-making could appear to be compromised without effective redress.  This appeal tests the limits of the Consolidated-Bathurst rule.  It also tests the availability of effective redress for non-observance of those limits.

63                            The Board has long treated abandonment of bargaining rights as a question of fact.  In its initial decision prepared by the Vice-Chair, which the Board acknowledged to be authentic, the panel wrote that it “has found unequivocal evidence of abandonment by the applicant [union] of its bargaining rights prior to 1978” (para. 55), being the date when the Ontario construction industry went to province-wide bargaining.  In its revised decision, the Vice-Chair wrote that “considering all the circumstances, the Board does not find that Local 353 abandoned its bargaining rights prior to the introduction of province-wide bargaining” ([1992] OLRB Rep. 147, at para. 54).  The evidence discloses no explanation for the change other than the full Board meeting.  In my view, Consolidated-Bathurst should not be interpreted to authorize the full Board to micro-manage the output of particular panels to the extent evident in this case.  The concept of “policy” has been stretched beyond its breaking point.  The principle that “he who hears must decide” should be vindicated.  I would therefore allow the appeal and return the issue to be addressed by a different panel of the Board.

64                            I have had the benefit of reading the reasons of my colleague LeBel J. and will not duplicate his description of the events leading to the present controversy or his review of the leading authorities.  I will elaborate only as may be necessary to identify my points of disagreement.

Standard of Review

65                            The respondent union argues that the Board's decision should be set aside only if it is “patently unreasonable”.  This presupposes that the error was made within the Board's jurisdiction.  The appellant contends that the panel of the Board lost jurisdiction when it called for a full Board meeting to discuss what it regards as a question of fact.  Compliance with the rules of natural justice is a legal issue.  The standard of review is correctness as noted in D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 2, at para. 14:2300, pp. 14-14 and 14-15:

. . . whether the administrative decision-maker has breached the rules of natural justice or the duty of procedural fairness by failing to permit any, or adequate, participation by the person concerned will usually be assessed on the basis of “correctness.”  And the presence of a privative clause will be of no consequence in this regard.

I think this is a correct statement of the law.

He Who Hears Must Decide

66                            Nothing is more fundamental to administrative law than the principle that he who hears must decide.  Consolidated-Bathurst, supra, affirmed the vigour of this general rule while recognizing an exception for a full board meeting to give “quality and coherence” in matters of Board policy (p. 324).  Policy issues were thought to be different from fact finding, and the latter was ruled off-limits even for discussion at the full Board meeting, per Gonthier J., at p. 335:

Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram partem rule because the parties are not aware of what is said at those meetings and do not have an opportunity to reply to new arguments made by the persons present at the meeting.  In addition, there is always the danger that the persons present at the meeting may discuss the evidence.  [Emphasis added.]

At p. 339, Gonthier J. stressed that the Consolidated-Bathurst principle is limited to “legal or policy arguments not raising issues of fact” (emphasis added):

It is true that on factual matters the parties must be given a "fair opportunity . . . for correcting or contradicting any relevant statement prejudicial to their view". . . .  However, the rule with respect to legal or policy arguments not raising issues of fact is somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments.  [Emphasis added.]

67                            It appears more probable than not that at the full Board meeting in this case there was a discussion about factual matters which likely included “statement[s] prejudicial to [the appellant's] view” because the panel subsequently reversed itself on the appropriateness of an adverse inference against the union for its failure to lead relevant evidence, reversed itself on the issue of abandonment, and thus reversed itself on the outcome of the hearing.

The Issue of Abandonment

68                            The Ontario Labour Relations Act, 1995, S.O. 1995, c. 1 (“the Act”) does not speak of abandonment of bargaining rights.  The concept was developed in the Board's jurisprudence to allow termination of the bargaining rights of a union that fails to “actively promote those rights”.  These principles were adopted by the panel, citing earlier cases, in identical terms in para. 43 of its initial decision and para. 43 of its final decision:

Over the last 20 years the principle of abandonment has been deeply entrenched in the Board's jurisprudence.  Once a union has obtained bargaining rights either through certification or voluntary recognition it is expected that it will actively promote those rights.  If a union declines to pursue bargaining rights it may lose them through disuse.  Whether a union has abandoned its bargaining rights is a matter which must be assessed on the facts of each individual case, but once the Board is satisfied that a union has failed to preserve its rights, the union may no longer rely on them to support the appointment of a Conciliation Officer under section 15 of the Act. . . .  [Emphasis added.]

The issue for the panel, therefore, was whether the respondent union had “actively promote[d]” its bargaining rights with the appellant, or had lost them “through disuse”.

The Initial Decision

69                            I take the following events from the initial decision prepared for the panel dated December 1991.  (It seems to be more than a draft.  It appears from the “true copy” in the record that the original was signed by the presiding Vice-Chair.)

70                            On January 12, 1990, IBEW Local 894 grieved the appellant's subcontract of electrical work to a non-union contractor.  It claimed that the appellant was bound by the current province-wide agreement between the Electrical Contractors Association of Ontario and the IBEW Construction Council of Ontario.  The appellant took the position that it was not party to that agreement.  In response, the union reached back almost 30 years to a “working agreement” the IBEW, Local 353 had signed with the appellant in 1962.  The appellant's position was that if there was voluntary recognition of IBEW bargaining rights at that time (which it denied), such bargaining rights had been abandoned no later than the early 1970s when the Electrical Contractors Association of Toronto sought accreditation as bargaining agent for employers with whom the IBEW, Local 353 asserted bargaining rights.  The statutory form (“schedule F”) and regulations required the union to list “all employers” in the unit with whom the respondent union “is entitled to bargain as a result of a collective agreement, a recognition agreement or a certificate of The Labour Relations Board that has not yet resulted in a collective agreement” but who had not directly employed electricians in the year prior to the application.  The IBEW, Local 353 had filed such a list.  It did not include the name of the appellant.  The appellant argued that if any bargaining rights had been acquired under what the Board regarded as the 1962 “recognition agreement”, such rights had been abandoned by the time the union filed the accreditation documents in 1971.  The accreditation exercise was subsequently extended to province-wide bargaining.

71                            The initial decision included a description of the 1971 accreditation process:

What is important is that, as part of an accreditation application, the respondent trade union files with the Board a “schedule F” wherein the union lists those employers with whom it asserts it has bargaining rights but who did not have employees within one year prior to the accreditation application date.  In reviewing Board File 1469-71-R, wherein an accreditation order was issued on January 9, 1975, it is apparent that Ellis-Don's name does not appear on the final schedule F.  Nor was Ellis-Don's name struck off an initial schedule F as were other employers who challenged their inclusion on schedule F by the respondent trade union.  Quite simply, it appears that Local 353 did not include Ellis-Don's name on schedule F which the union filed with the Board.

72                            An accreditation order was made on January 9, 1975.  It is important to emphasize that the union's grievance in this case is based on its view that the appellant is bound by the subcontracting clause in the provincial agreement between the Electrical Contractors Association of Ontario and the IBEW Construction Council of Ontario, which is the present version of the agreement which grew out of the accreditation process in the 1970s, in which the union failed to assert bargaining rights against the appellant.

73                            The appellant raised a variety of objections and arguments against the union's contention, most of which were rejected.  In particular, in its initial decision the panel refused to draw any adverse inference from the failure of various unions (apart from the “civil trades”) to attempt to enforce the province-wide agreements against the appellant prior to 1990, despite evidence of limited subcontracting of work to non-union firms over the years.  The respondent union explained that if it did not appear to be “actively promot[ing]” its rights, it was because there was no need to.  The appellant invariably gave work to electrical subcontractors who were unionized.  The only point on which the panel concluded that union action may have been called for was the accreditation process which led to the predecessor agreement to the agreement it now sues upon:

Local [8]94, the applicant herein, called no evidence to explain the failure of Local 353 to include Ellis-Don on schedule F, as would be expected if the union in the accreditation application thought it possessed bargaining rights vis-a-vis Ellis-Don.  Absent an explanation, the most reasonable inference is that the union in the accreditation application assumed it did not possess such bargaining rights in 1971, when the accreditation application was filed.  [Emphasis added.]

Whether or not an adverse inference is warranted on particular facts is bound up inextricably with the adjudication of the facts.  The union, though challenged to do so, declined to call any witness with knowledge of the events of 1971.  “Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it”, J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29, at para. 28.

74                            In sum, the panel, in its initial decision, reasoned as follows:

1.         A union that was actively pursuing bargaining rights against the appellant under the predecessor agreement to the one now sued upon was required by the Act and Regulations to list the appellant on schedule F.

2.         Unless explained away by the union, the failure afforded some evidence of abandonment.

3.         The union called witnesses, but nobody who could speak to its failure to include the appellant in schedule “F”.

4.         There was no other evidence of “active” assertion of bargaining rights by the union that could tilt the panel's conclusion in the union's favour.

75                            In the result, having regard to the union's failure to “actively promote” its bargaining rights, the panel in its initial decision found “unequivocal evidence of abandonment by the applicant [IBEW] of its bargaining rights prior to 1978”.

76                            My colleague LeBel J. concludes at para. 42 that this initial decision turns on a “rebuttable presumption” which was subsequently discarded, as a matter of policy, by the full Board.  It is therefore necessary to examine in some detail what changes to the decision were made following the full Board meeting.

The Full Board Meeting

77                            For reasons which are not explained, the Vice-Chair requested a full Board meeting to discuss the panel's initial decision.  The Vice-Chair did not formulate a policy issue or notify colleagues that there would be a general review of the policy implications of abandonment.  The Vice-Chair just referenced this particular pending decision as the topic for full Board discussion.

78                            Consolidated-Bathurst holds that convening a full board meeting while a particular case is pending is permissible so long as (i) the question for discussion is one of policy rather than fact, (ii) that in the end the panel is free to make its own decision, and (iii) that if the discussion at the full board raises matters not addressed by the parties, that the parties be put on notice and permitted to make representations before a decision is made.

79                            In my view, the procedure adopted in the present case violates only the first of these limitations.  There is no evidence that the second limitation was not observed, and as to the third limitation, the appellant had the opportunity to address the panel on every aspect of the abandonment issue.  Its proper complaint is that the initial decision ought not to have been referred to the full Board meeting at all.

Fact versus Policy

80                            I agree with my colleague LeBel J. that one of the conditions precedent to the validity of a full board meeting is that “the consultation had to be limited to questions of policy and law.  The members of the organization who had not heard the evidence could not be allowed to re-assess it.  The consultation had to proceed on the basis of the facts as stated by the members who had actually heard the evidence” (para. 29).  This limitation is based on what was said by Gonthier J. for the majority in Consolidated-Bathurst, supra, at pp. 335-36.  In that case, the issue was the scope of the employer's duty to bargain in good faith imposed by what is now s. 17 of the Ontario Labour Relations Act.  More specifically, the question was whether the duty to bargain in good faith included a duty of candour to disclose without being asked future plans of the employer that would have a significant impact on the economic lives of bargaining unit employees (Consolidated-Bathurst, supra, at p. 311).  A discussion about the relationship between the obligation to bargain in good faith and a duty of candour raised an abstract policy issue that could be segregated from the facts of that case.  Here, the Board's policy had been authoritatively established, i.e., the “active promotion” test.  It was for the panel to determine in the factual context of this particular case whether or not this standard was met.

81                            I agree with my colleague LeBel J. that the issue of “abandonment”, when considered in the abstract, has a policy component.  As I will attempt to demonstrate, however, what happened following the full Board meeting was not a change in policy but a re-assessment of the facts.

Mixed Questions of Policy and Fact

82                            Counsel for the Board argues that primary facts are those “observed by the witnesses and proved by testimony.  Whether established primary facts satisfy some legal definition or requirement is a question of law, which is an entirely proper subject for a full board meeting”.  There is, of course, an intermediate category between “primary facts” and “law” which is that of mixed law (or policy) and fact.  Within this intermediate category there are gradations from the factual end of the spectrum, where the legal content may be uncontroversial or minimal, to the legal end, where the facts may be of little consequence and, as the Board's counsel notes, a decision will have “an impact which goes beyond the resolution of the dispute between the parties”.  This spectrum was recognized by the Court in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, per Iacobucci J., at paras. 35-38.  In the present case, the legal or policy content of “abandonment” was defined in a portion of the decision that was unchanged from the initial decision to the final rewrite, as mentioned above.  The test was not whether the union intended to throw away rights (which, as the Divisional Court noted, is an unlikely scenario), but whether it actively promoted those rights in circumstances where it would reasonably be expected to do so.

83                            In my view, the question here is not whether a policy issue can be teased out of the adjudicative facts.  The question is whether, taking the law (or policy) as the Board has defined it, the reference to the full Board descends so far into the adjudicative process as to violate the principle that he who hears must decide and he who decides must hear.  This depends, I think, on whether the policy issue can be segregated sufficiently from the facts of the particular dispute to avoid interfering with fact adjudication, as indeed Gonthier J. contemplated in Consolidated-Bathurst at p. 337:

These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel. [Emphasis added.]

Where no such segregation can safely be made, the reference to the full Board of a decision before its release risks putting at risk the integrity of its decision-making process, as noted by Professor H. N. Janisch in his commentary, “Consistency, Rulemaking and Consolidated Bathurst” (1991), 16 Queen's L.J. 95, at p. 104.

84                            The implications of the Court's acceptance of what was done in this case are extensive.  Under s. 9(1) of the Act, for example, the Board is required to determine an appropriate bargaining unit.  Over the years, the Board has developed extensive policies on the topic which individual panels are expected to apply to the facts:  see J. Sack, C. M. Mitchell and S. Price, Ontario Labour Relations Board Law and Practice (3rd ed. (loose-leaf)), vol. 1, at p. 3.121.  Frequently, the evidence on this issue is extensive.  Generally speaking, I think it would be inappropriate for a panel to refer a particular case for ad hoc policy making by the full board in relation to the specific facts in the absence of the parties.  Equally, s. 76 prohibits the use of “intimidation or coercion to compel any person” to belong or not to belong to collective bargaining organizations, etc.  This requires a definition of “intimidation or coercion”, but whether or not a particular situation meets the definition should be determined by the panel charged with the decision.  Similarly, s. 69 regulates successor rights on the “sale of a business”.  One test of this is whether “the business continues to function”:  Marvel Jewellery Ltd., [1975] OLRB Rep. 733, at p. 735, and this too is considered by the Board to be a question of fact:  Accomodex Franchise Management Inc., [1993] OLRB Rep. 281.  It is evident that all of these determinations, and many others, are predicated on a legal or policy interpretation of a concept or statutory provision, as the case may be.  Consolidated-Bathurst did not licence wholesale full board consultations on those fact-dependent adjudications.  This is especially the case where the Board's jurisprudence on the policy point is already well established.  In this case, as stated, the Board's policy on abandonment in terms of active promotion of rights was never in doubt and was defined in the same language in the final decision as it had been in the initial decision.

Reversal of a Finding of Fact

85                            The panel made it clear both in its initial decision and in the rewrite that it considered abandonment to be an issue of fact.  It explained in both at para. 43:

Prior to the introduction of province-wide bargaining in the ICI sector, the Board has on several occasions determined, as a matter of fact, that a trade union has abandoned its bargaining rights through inaction. . . .  A useful summary of the caselaw and the factors influencing the Board's assessment is found in R. Reusse Co. Ltd. . . .  [Emphasis added.]

In the case cited, R. Reusse Co., [1988] OLRB Rep. 523, the Board set out its policy as follows at paras. 13 and 15:

It was not disputed that the question of abandonment is a matter of fact to be resolved by the Board in the circumstances of each case. . . .

                                                                   . . .

What is most striking about this application is that, having attained bargaining rights in 1965, Local 397 did nothing for almost 15 years (just to the advent of province-wide bargaining) to negotiate renewals of the collective agreement, administer those “existing” agreements or otherwise contact the respondent.  Given such an extended passage of time, the Board must carefully scrutinize the reasons proffered by the union as explanation for its inactivity in order to avoid the reasonable inference that the union has abandoned its bargaining rights.  [Emphasis in original.]

The Board's decision in the present case (both initial and final) simply repeated the language in Reusse, supra:

It was not disputed that the question of abandonment is a matter of fact to be resolved by the Board in the circumstances of each case: J. S. Mechanical, supra; Inducon Construction (Northern) Inc., supra; John Entwistle Construction Limited, supra; Re Carpenters’ District Council of Lake Ontario and Hugh Murray (1974) et al., Re Labourers’ International Union of North America, Local 527 et al. and John Entwistle Construction Ltd. et al., supra; Twin City Plumbing and Heating, [1982] OLRB Rep. Apr. 631.  [Emphasis added.]

and then continued (at para. 44):

It is in the above jurisprudential context that the Board must analyse the evidence in the instant case.

86                            Indeed, the panel concluded in its final version of the decision in this case at para. 54 that “[it] is not satisfied, as a matter of fact, that the bargaining rights of Local 353 were abandoned because of the omission of Ellis-Don's name from schedule F” (emphasis added).  We are not bound by the characterization placed on its own decision by the panel, but in this respect I think the panel was correct.

The Controlling Issue Was Whether the Union had “Actively Promoted” its Bargaining Rights

87                            The initial decision accepted the respondent union's position that it could hardly be faulted for lack of “active promotion” when its intervention proved not to be necessary to ensure that electrical work was subcontracted to union subcontractors, albeit the Board also found that the appellant did not consider itself under any obligation to do so.  The important exception was the panel's expectation that a union that was “actively” promoting its bargaining rights would have included the appellant on schedule F in the accreditation process that led to the predecessor to the one now invoked by the union.  The panel noted that the union might well have had a plausible explanation for its lack of “active” promotion in the accreditation process but had not put any such evidence forward.  In its initial decision the panel was not prepared to act on the unsupported hypotheses offered up by counsel for the respondent union.  In its final decision, however, the panel seemingly accepted the same unsupported speculation to be the adequate explanation that it had earlier found not to exist.

88                            The panel initially concluded that in the particular circumstances of the case an adverse inference should be drawn against the union for its decision not to call the evidence.  I do not say that the panel was obliged to draw an adverse inference.  The fact is that following a lengthy hearing, it did so.  The correctness of that determination was bound up with the evidence:

It is perfectly appropriate for a jury to infer, although they are not obliged to do so, that the failure to call material evidence which was particularly and uniquely available to the Vieczoreks was an indication that such evidence would not have been favourable to them.  It is a common sense conclusion that may be reached by any trier of fact.  There are no authorities which cast any doubt upon the proposition.  [Emphasis added.]

(Vieczorek v. Piersma (1987), 36 D.L.R. (4th) 136 (Ont. C.A.), per Cory J.A., at pp. 140-41)

To the same effect is the statement found in Sopinka, Lederman and Bryant, supra, at p. 97:

A presumption of fact is a deduction of fact that may logically and reasonably be drawn from a fact or group of facts found or otherwise established.  Put differently, it is a common sense logical inference that is drawn from proven facts.  [Emphasis added.]

89                            To characterise this “common sense conclusion . . . by [a] trier of fact” as a “rebuttable presumption” does not, in my view, transform this issue of factual adjudication into a question of law, as my colleague LeBel J. concludes at para. 42.  In any event, with respect, a debate about labels should not detract us from the more fundamental inquiry about whether in this case the full board consultation intruded into adjudicative matters of fact the panel itself was required to decide.

90                            The Vice-Chair's reasons, rewritten after the full Board meeting, now said, at para. 54:

The absence of evidence to explain the omission of Ellis-Don from the schedule F filed by Local 353, IBEW in the accreditation application is of concern to the Board.  The question for the Board is whether this omission, of itself, is sufficient, in the context of all the other circumstances, to cause the Board to conclude that Local 353 has abandoned the bargaining rights it had earlier obtained.  The omission of Ellis‑Don’s name is not inconsistent with abandonment and, thus, may signify what respondent counsel asserts.  However, that omission is also consistent with an assumption on the part of the Local that the accreditation application affected only specialty contractors or that schedule F speaks only to employers for whom the Local held bargaining rights but who had had employees in the past (albeit not within the previous year).  It appears (and there is no cogent evidence to suggest otherwise) that the employer association represented specialty electrical contractors, not general contractors.  In that context, the name of Ellis‑Don may have been omitted, in the respondent union’s reply, as apparently were the names of other general contractors who had signed the working agreement, to reflect the framing of the original application.  The question is not what is the most reasonable or a reasonable inference from the omission of Ellis‑Don’s name but whether the omission signifies abandonment.  In the Board’s opinion, it is more probable than not that the omission of Ellis‑Don’s name from schedule F did not reflect an abandonment of bargaining rights.  [Emphasis added.]

The test applied by the panel (“it is more probable than not that the omission . . . did not reflect an abandonment of bargaining rights”) is typical for a finding of fact.  The rewrite does not reflect any change in policy or legal principle governing the weight to be given to the evidence.  It simply multiplies speculation about why the union might (or might not) have acted as it did.  The Board thus chose to put less weight on the union's failure to list the appellant on schedule F and more weight on speculative factors.  In other words, the evidence was reweighed or re-assessed, apparently as a result of the full Board meeting.  This is contrary to Consolidated-Bathurst.

The Divisional Court's Rationalization of the Board's Decision

91                            It was left to Adams J. in the Ontario Divisional Court ((1995), 89 O.A.C. 45) to offer a suggestion about how to rationalize the panel's initial decision with its ultimate decision, at para. 31:

The Board had several policy options open to it on the facts as found:  (i) the absence of Ellis-Don on Schedule F constituted per se evidence of bargaining right abandonment; (ii) the omission gave rise to a rebuttable presumption of abandonment, thus requiring an explanation from Local 353; (iii) the omission was a factor to be considered along with all the other evidence before the Board; or, finally, (iv) the failure of Local 353 to place Ellis-Don’s name on Schedule F was irrelevant, in the circumstances, to the issue of abandonment.  Ultimately, the Board concluded the failure of Local 353 to include Ellis-Don on Schedule F was a factor to be considered and was not determinative in the circumstances.

92                            The options are presented as a menu of policy choices, but the passage does no more than describe transition stages from a strong inference to a weak inference to no inference at all.  The question of what weight should be attached to the union's conduct in light of all the evidence heard over several weeks seems to me, quintessentially, for the trier of fact.  The appellant was not dealing with the Ministry of Labour, where departmental procedures are not expected to conform to a judicial or quasi-judicial method of making decisions.  The Ontario Labour Relations Act holds out the promise of a quasi-judicial tribunal where union and management are eyeball-to-eyeball with the decision-makers.  So long as the legislative promise is there the relevant constraints should be observed in factual adjudications.

93                            The panel's initial decision, as I read it, did not suggest that the absence of the appellant on schedule F per se constituted abandonment.  The initial decision concluded that the union's decision not to include the appellant on schedule F “was a factor to be considered along with all the other evidence” but that in the absence of any explanation, or contrary evidence from the union that bargaining rights had in fact been actively asserted at some point between 1962 and 1971, there was nothing opposable to the common sense inference of abandonment. 

94                            The Divisional Court also faulted the appellant for its failure to seek a reconsideration by the Board under s. 114(1) of the Act.  Apparently the court was not pleased with appellant counsel's somewhat triumphal rejoinder that the Board had been “caught . . . with [its] hand in the cookie jar” and he was not disposed to give it an opportunity to extricate itself.  While a motion for reconsideration was an option, it was not equivalent to an internal appeal for purposes of an “exhaustion of administrative remedies” argument.  The Board's position advanced with ingenuity and vigour in these proceedings no doubt reflects what the panel would have said on a reconsideration, namely the assertion that Consolidated-Bathurst sanctioned the procedure adopted in this case. 

Failure to Obtain Evidence from Board Witnesses

95                            The appellant obtained an order from Steele J. of the Ontario Court (General Division) ((1992), 95 D.L.R. (4th) 56) compelling the attendance of the Chair of the Board, the Vice-Chair who presided over the panel, and the Registrar of the Board “to obtain information with respect to the procedures implemented by the O.L.R.B. in arriving at its final decisions” (p. 58).  The motions judge was reversed by the Ontario Divisional Court ((1994), 16 O.R. (3d) 698) on the basis of s. 111 of the Labour Relations Act, R.S.O. 1990, c. L.2 (now s. 117), which grants testimonial immunity in the following terms:

Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

96                            The Ontario Court of Appeal and subsequently this Court ([1995] 1 S.C.R. vii), denied leave to appeal from this interlocutory decision.

97                            The legislative grant of testimonial immunity in s. 111 may be justified on various policy grounds, as pointed out by my colleague LeBel J. at paras. 52-53.  However, it creates the following problem in the present context:

Safeguards are of no use if they cannot be enforced.  How can judicial review be used to police the safeguards built into the decision-making process if the operation of that process is veiled behind a cloak of deliberative secrecy?  Just as at the substantive level, there exists a need for safeguards to reconcile natural justice with institutional decision-making; at an operational level some mechanism must be found to reconcile the need for judicial review with the privilege of deliberative secrecy.

(R. E. Hawkins, “Behind Closed Doors II:  The Operational Problem – Deliberative Secrecy, Statutory Immunity and Testimonial Privilege” (1996), 10 C.J.A.L.P. 39, at p. 40)

98                            This Court in Consolidated-Bathurst contemplated meaningful redress when full board meetings exceed their proper role.  This was demonstrated in Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, in which Gonthier J. wrote, at p. 965:

The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice.... Paradoxically, it is the public nature of these rules which, while highly desirable, may open the door to an action in nullity or an evocation.  It may be questioned whether justice is seen to be done.  Accordingly, the very special way in which the practice of administrative tribunals has developed requires the Court to become involved in areas into which, if a judicial tribunal were in question, it would probably refuse to venture. . . .  [Emphasis added.]

and at p. 966:

. . . by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals.

99                            Here the undisputed evidence is that the initial decision of the panel held as a fact that the union had abandoned its bargaining rights.  The final decision held as a fact that it had not, and the intervening event was the full Board meeting.  In Tremblay, Gonthier J. observed at p. 980:

. . . the procedure of early signature of draft decisions by members and assessors followed in the case at bar seems to me unadvisable.  Although this procedure may be practical, it only adds to the appearance of bias when a decision maker decides to alter his opinion after free consultation with his colleagues.

(While, as stated, an original signed copy of the initial decision in the present case is not in the Court record, the “true copy” that was filed indicates that the original was signed.) Gonthier J. continued at pp. 980-81:

A litigant who sees a “decision” favourable to him changed to an unfavourable one will not think that there has been a normal consultation process; rather, he will have the impression that external pressure has definitely led persons who were initially favourable to his case to change their minds.

100                        The appellant does not need to establish “external pressure” in this case.  It merely has to establish a basis for a reasonable inference that factual matters were referred for discussion at the full Board meeting that ought to have been left to the undisturbed deliberations of the panel.

101                        Section 111 prevented the appellant from getting to the bottom of the Board's decision-making process in this case.  The result, in my view, is not that the appellant is thereby prevented from establishing a basis for judicial review.  The Court ought not to be blind to the difficulties of proof in determining whether the appellant has made out its case.  Otherwise the limitation imposed by Consolidated-Bathurst becomes a pious sentiment rather than an enforceable rule of law, which indeed is a question raised by Professor David J. Mullan in his case comment:

. . . it is possible to see the judgment as simply drawing the attention of members to their responsibilities without any real expectation that there will be consistent monitoring of behaviour.

(D. J. Mullan, “Policing the Consolidated-Bathurst Limits – Of Whistleblowers and Other Assorted Characters” (1993), 10 Admin. L.R. (2d) 241, at p. 242)

102                        I think Tremblay showed that the Court did have a “real expectation” that the limits on the scope of full board meetings would be enforceable.  In that case, the Court quashed the decision of the Quebec Commission des affaires sociales because its equivalent of the full board meeting procedure compromised the ability of individual panels to reach their own decision free of constraints imposed by colleagues.

103                        The Board is responsible for maintaining its deliberative secrecy, and it will generally be assisted by the courts in that regard.  However, where there is a breach of that secrecy from within the Board itself, whether by reason of a whistleblower or otherwise, the inconvenient information cannot be wished out of existence.  The appellant is not to be faulted for coming into possession of information volunteered by a retired member of the Board. 

104                        The Board in its submissions cautions the Court against “lowering the bar” for judicial review, and worries that once “an allegation of wrongdoing was made, an administrative tribunal would have no choice but to reveal its deliberations so as to rebut the ‘reasonable apprehension’”.  The Board construes “deliberations” broadly to include process as well as substance, and says that it embraces not only the decision makers (the panel) but all attendees at the full board meeting as well.  However, it is in the nature of judicial review that the secrecy as to the process may have to be relaxed by the Board to dispel legitimate concerns about the integrity of its decision-making process.  The alternative for the Board in a case where an applicant has met the threshold evidentiary onus (as here) is to allow the decision to be vacated as the price of preserving intact the secrecy surrounding its formation. 

105                        In my view, the Board cannot have it both ways.  It cannot, with the assistance of the legislature, deny a person in the position of the appellant all legitimate access to relevant information, then rely on the absence of this same information as a conclusive answer to the appellant's complaint.  We are not in the business of playing Catch 22.  The record discloses a change of position by the panel on an issue of fact.  This runs counter to Consolidated-Bathurst and has to be dealt with properly if confidence in the integrity of the Board's decision making is to be maintained.  The exigencies of judicial review were specifically affirmed by Gonthier J. in Tremblay at pp. 965-66:

. . . when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way:  as to legality by judicial review.  It is of the very nature of judicial review to examine inter alia the decision maker's decision‑making process.  Some of the grounds on which a decision may be challenged even concern the internal aspect of that process:  for example, was the decision made at the dictate of a third party?  Is it the result of the blind application of a previously established directive or policy?  All these events accompany the deliberations or are part of them.

Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals.  Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.  [Emphasis added.]

106                        In Tremblay, of course, the Court was not confronted with a testimonial immunity provision comparable to s. 111 of the Ontario Labour Relations Act.  Nevertheless, it could not have been intended by the Court to make a distinction between fact and policy, only to have its enforcement rendered impracticable.  Where such difficulties of proof are presented, as here, they will have to be factored into the evidentiary burden of proof placed on the appellant.

The Presumption of Regularity

107                        The Ontario Court of Appeal considered the Board's proceedings to be protected by the “presumption of regularity” ((1998), 38 O.R. (3d) 737, at p. 740).  This presumption, like any rebuttable presumption, yields to contrary evidence.  Here again the Board relies on its successful denial of access to relevant information to feed the presumption and defeat the appellant's complaint.  Not only were subpoenas set aside, as mentioned, but attempts by the appellant to obtain relevant information through the provincial Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, were successfully resisted.  Building on this success, the Board relies upon the statement of Gonthier J. in Consolidated-Bathurst at p. 336:

The appellant does not claim that new evidence was adduced at the meeting and the record does not disclose any such breach of the audi alteram partem rule.  The defined practice of the Board at full board meetings is to discuss policy issues on the basis of the facts as they were determined by the panel.  The benefits to be derived from the proper use of this consultation process must not be denied because of the mere concern that this established practice might be disregarded, in the absence of any evidence that this has occurred.  In this case, the record contains no evidence that factual issues were discussed by the Board at the September 23, 1983 meeting.  [Emphasis added.]

108                        Where, as here, a serious question is raised on material emanating from the Board itself as to whether the Consolidated-Bathurst limits were respected, I do not think it is for the Board to claim that the failure of the party to obtain the additional evidence that the Board itself has fought to withhold is a complete answer to the claim.  The strength of the evidence necessary to displace the presumption of regularity depends on the nature of the case:  W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at p. 334.  Having regard to the difficulties put in the way of the appellant to obtain evidence to which at common law it would have been entitled (Tremblay, at pp. 965-66), I think the appellant discharged its evidentiary onus to displace the “presumption” of regularity.

109                        The Board relies on the public interest in the effective operation of its docket, but that is not the only public interest at stake here.  Public confidence in the integrity of decision making by courts and adjudicative tribunals is of the highest importance.  Parties coming before the Board should not come away with a reasonable apprehension that they were subject to a rogue process.  Once it was determined here that the change between the initial decision and the final decision related to an issue that was almost entirely factual, and was nevertheless put up for discussion at a full Board meeting, I think the appellant has made out a prima facie basis for judicial review which in this case the Board chose not to rebut.  To hold otherwise would suggest that the Court in Consolidated-Bathurst affirmed procedural limitations on full board meetings for breach of which there is no effective remedy.

110                        I do not think it is necessary in this case to address the possibility of relief against an “apparent” breach of fair hearing rights.  I note, however, that many of the justifications my colleague, LeBel J. lists, at para. 48, for resort to “appearances” in bias cases apply here, principally the difficulty of proof and the need to vindicate the integrity of the adjudicative process.  In the normal case it will be apparent whether someone has received the sort of hearing to which he or she is entitled.  Did he or she know the case to meet?  Was there proper disclosure?  Was there a hearing?  Were reasons given?  Were those reasons adequate?  Generally, unlike cases of bias, a participant has enough information in the ordinary course to determine the content of procedural fairness in a particular case and to assess whether it was received.  For the most part, it will be “seen” by all whether fair hearing rights have been respected.  This type of case is different.  The statute bars access to the information relevant to a determination whether the full Board meeting was contrary to natural justice.  The problems of information and proof inherent in bias cases, which contributed to the creation of the “appearances” standard, are present here.

111                        However, it is not necessary in this case to step into such controversial jurisprudential waters.  The evidence shows a reference of the case to the full Board, and a change in the factual adjudication.  This brings the appellant within the principle enunciated by Gonthier J. in Consolidated-Bathurst at pp. 335-36:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and an overall evaluation of the relevancy of all the information presented as evidence.  As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result.  Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision.  However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence.  [Emphasis added.]

On this point, there seems to have been no disagreement between Gonthier J. and Sopinka J., dissenting in the result, who wrote at p. 296:

... in matters affecting the integrity of the decision-making process, it is sufficient if there is an appearance of injustice.  The tribunal will not be heard to deny what appears as a plausible objective conclusion.  [Emphasis added.]

Once the likelihood is established that the full Board meeting trespassed on adjudicative matters properly left to the panel, the further question of prejudice is properly dealt with in accordance with the observation of Dickson J. in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1116:  “We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.” 

112                        In my view, subject to the privative clause issue, the appellant is entitled to a new hearing before a different panel of the Board.  This is not an easy order to make given the fact that this case has been before the Board and the courts for many years.  However, the courts in Ontario refused to stay the Board's original order upholding the respondent union's bargaining rights, and the union and its members have not on that account been prejudiced by the delay.

The Privative Clauses

113                        Decisions of the Board are protected by a considerable armoury of statutory provisions including a “finality clause” and a “privative clause”:

114. (1)  [Jurisdiction]  The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

116.  [Board's orders not subject to review]  No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

114                        The effect of such clauses was explained by Dickson J. (as he then was), speaking for the Court in Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, at p. 389:

A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause.  Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.  [Emphasis added.]

To the same effect see Université du Québec à Trois-Rivières v. Laroque, [1993] 1 S.C.R. 471, at pp. 491 and 494;  Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, at p. 435; Brown and Evans, Judicial Review of Administrative Action in Canada, supra, at para. 13:5440, p. 13-78; G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at para. 4.100, p. 4-6.  The Board lies at the judicial end of the spectrum of administrative tribunals discussed in Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at pp. 628-29.  Where, as here, the Board upholds a grievance and orders the payment of damages under a procedure that violated the principles of natural justice, the order is made without jurisdiction and will be set aside despite the privative clause.

Disposition

115                        I would allow the appeal with costs and remit the union's application to the Ontario Labour Relations Board for a rehearing before a different panel.  The appellant should have its costs on a party and party basis here and in the courts below.

Appeal dismissed with costs, Major and Binnie JJ. dissenting.

Solicitors for the appellant:  Lerner & Associates, Toronto.

Solicitors for the respondent Ontario Labour Relations Board:  Tory Tory DesLauriers & Binnington, Toronto.

Solicitors for the respondent International Brotherhood of Electrical Workers, Local 894:  Koskie Minsky, Toronto.