[1] This is an appeal of a decision of the Trial Division (Huyck v. Musqueam Indian Band, [2000] F.C.J. 582 (T.D.) (QL), Nadon J.) which dismissed an application for judicial review of a decision made on July 6, 1998 by a panel of the Musqueam Indian Band Board of Review (the "MIBBR") with respect to property tax assessments for the year 1997.
[2] The grounds for the application were that a reasonable apprehension of bias existed with respect to the MIBBR's independence; that a reasonable apprehension of bias existed with respect to the panel of the MIBBR that heard the appellants' property tax assessments appeals; that the MIBBR acted without jurisdiction; and that the MIBBR did not observe the rules of natural justice and procedural fairness.
[3] The motions judge ruled that the Band's non-disclosure of their counsel's February 19, 1998 letter and of the reasons for the initial panel's mass resignations gave rise to a reasonable apprehension of bias. He found, however, that the appellants had waived their right to raise these issues, having failed to raise the allegation of a reasonable apprehension of bias at the earliest practical opportunity. He consequently dismissed their application.
[4] The appellants appeal the motions judge's findings with respect to waiver only. They argue there can be no waiver without full knowledge of the facts giving rise to the reasonable apprehension of bias, and that there is no duty on persons such as the appellants to put fishing questions in order to extract evidence of a disqualification of which there may be suspicion but not actual knowledge. They say they were unaware of the reasons for the initial panel's resignation at the time of the hearing before the newly constituted panel on May 11, 1998, that they did not know Mr. Brothers and Ms. Roberts had been members of the MIBBR prior to April 7, 1998, and that, had they known this at the time of the hearing, they would have requested the resignation of the panel that heard the case. They also submit there was no duty prevailing upon them to ask the initial panel members and particularly Mr. Cavazzi, the former chair, for the circumstances of the resignations of the initial panel members.
[5] We find there was evidence on which the motions judge could conclude that the appellants suspected something was amiss from the very beginning, namely as early as February 19, 1998, and that they failed to react at the earliest practical opportunity.
[6] At paragraph 78 of his reasons, the motions judge stated:
... the Applicants suspected something was amiss from the very beginning. This is reflected in the correspondence, specifically in Mr. Mickelson's February 19th letter to Mr. Fast asking "who is in charge in respect of arranging the hearing of this matter-yourself of Mr. Cavazzi"; Mr. Funt's February 27th letter to Mr. Savage asking for a "full and candid explanation... Otherwise the inference will be that the hearing process is fundamentally flawed"; Mr. Funt's March 12th letter to Mr. Fast asking for an explanation on the Band's role and saying that "a lack of any such explanation... will serve only to compound the apprehensions held by many of our clients"; Mr. Mickelson's March 13th letter to the Band (Attention: Mr. Fast) inquiring about the resignations; and Mr. Mickelson's April 16th letter to Mr. Harvey asking for a meeting between the Applicants and the Band so that they may discuss the resignations, the new appointments, and the new panel.
[7] The sequence of events was the following:
.
[8] The letters dated February 19 and 27, 1998, indicated the concerns of the appellants over the contradictory role of the Band in appointing Mr. Gordon to the MIBBR early in January despite an apparent conflict, and later in objecting to his sitting as a panel member. The letter dated March 12, 1998, even contemplated recourse to the Federal Court if sufficient answers were not forthcoming. The March 13, 1998 letter from appellants' counsel raised the issue of the mass resignation of the initial panel, indicating that no notice had been given of those resignations nor the dates on which they were made.
[9] On April 7, 1998, Mr. Brothers, on behalf of the MIBBR, wrote to counsel for the appellants informing them of a meeting the MIBBR had held on April 2, 1998, wherein a second panel was selected to hear the case following the resignations of the initial panel members. The new panel, he stated, would be comprised of himself acting as chair, Ms. Roberts as vice-chair and either Messrs. Fraser or Rivard, depending on their availability. Mr. Brothers gave the parties the opportunity to raise any issue of concern to them. He wrote:
The Board does not wish to be plagued by procedural motions at the commencement of the hearings. If the parties have any further matters worrying them, then they should bring it to my attention as soon as possible, so I can obtain the opinion of the ‘test case' panel.
I would be pleased to hear from you at the earliest possible moment in connection with the matter raised in this letter.
[10] Despite Mr. Brother's invitation, the appellants never responded to his letter and never raised reasonable apprehension of bias as an issue, which led the motions judge to note, at paragraph 78 of his reasons, that the appellants had failed, at that stage, to make an objection at the earliest practical opportunity.
[11] On April 16, 1998, a letter from the appellants' counsel to counsel for the Band clearly stated the appellants' concerns regarding the mass resignation of the initial panel members and requested a meeting to receive information and clarification regarding the resignation of the initial panel members and the appointment of the new MIBBR members. The letter also indicated a concern about the appearance of the process itself with regard to the integrity of the new panel that was to hear the case. Mr. Mickelson wrote:
The letter from Mr. Brothers dated April 7, 1998, was the first news that board members had been appointed and a panel constituted. While I have no doubt that the present members of the Board would discharge their duties in an independent and objective fashion, it is important, as you well know, that there be an appearance of justice being done so that whatever decision comes down from the Board stands on its own merits and is not subject to any perception of conflict or bias.
[12] In another letter dated April 28, 1998, not referred to by the motions judge, Mr. Mickelson wrote to Mr. Harvey (Appeal Book vol. 2 at 196):
It is imperative that such a meeting take place prior to the hearing. There is not much time remaining and I would like to schedule a date.
Please get back to me later today or tomorrow.
[Our emphasis]
Despite all these requests for information, when the actual hearing took place on May 11, 1998, before a panel composed of Mr. Brothers, as chair, and Ms. Roberts and Mr. Rivard as members, the following exchange took place between Mr. Mickelson and the chairperson (Appeal Book vol. 2 p. 118, 119):
CHAIRPERSON: ...Do you have any objection to us sitting as a panel?
MR. MICKELSON: Mr. Chairman, I expressly don't have any objection whatsoever and have no concern about this Board discharging its function independently and impartially. There was one matter I was going to raise, and this seems like an opportune time, and I'll make it in view of your comments much more brief, but I thought it might be useful to briefly outline very briefly the history of what's happened since – I don't have to then, but I suppose the only concern I have isn't myself as counsel but on behalf of my clients and it's really a question about not only the justice being done but the integrity of the process and one of the things that was of concern to my clients was, one, the delay in getting this back on and that was never explained. I'm not asking this Board to explain it –
CHAIRPERSON: We acted with the speed of light
.
MR. MICKELSON: Yes, I'm just – up until April – I have no criticism of –
CHAIRPERSON: I prefer not to talk about the past. I'm talking about the present and the future.
MR. MICKELSON: Okay.
CHAIRPERSON: What happened in the past is in the past.
MR. MICKELSON: All right, Mr. Chairman, I accept that. I just – I guess I just wanted to express on behalf of my clients that hopefully in terms of the past we can deal with the future today, that there be some – not from this Board but some explanation at some stage forthcoming
–
CHAIRPERSON: I'll leave that up to the parties to straighten that out.
MR. MICKELSON: Thank you.
[13] Nothing explains the failure of the appellants to pursue their quest for an explanation for the mass resignation and the delay in the appointment process, despite the fact that they had already voiced their concern about the appearance of the process with regard to the integrity of the new panel that was to hear the case. Had they raised their concern with the new panel, they might have had some explanation which would have guided their course of conduct. It was open to the motions judge to conclude that the appellants had abandoned their intention to advance the matter, and then, to infer that the appellants had waived their right to raise the issue of a reasonable apprehension of bias with respect to the panel that heard the case and with respect to that panel's independence, based on the resignation of the initial panel as evidence of that bias. (Canada(Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 896; Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 at 110 (F.C.A.); Abdabrithah v. M.E.I. (1991), 40 F.T.R. 306 at 308-309 (Denault J.)).
[14] We find the case at bar to be distinguishable on the facts from those relied on by the appellants. ([1955] S.C.R. 3">Szilard v. Szast [1955] S.C.R. 3; McGuire v. Royal College of Dental Surgeons (1991), 44 QAC 11 (Div. Ct); NAPE v. Newfoundland (Treasury Board) (1991), 47 Admin. L.R. 149 (Nfld. S.C.); Bailey v. Registered Nurses Assoc. Saskatchewan, [1998] 10 W.W.R. 536 (Sask. Q.B.).
[15] The appellants have failed to persuade us that the motion judge erred in the conclusion he reached. We find that our intervention in this case is unwarranted. For this reason, the appeal will be dismissed with costs in favour of the respondent Band only. The respondent Assessor is not entitled to costs.
(Sgd.) "Alice Desjardins"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-388-00
STYLE OF CAUSE: Dorothy A. Huyck et al. v. The Musqueam Indian Band
et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: May 7, 2001
REASONS FOR JUDGMENT BY DESJARDINS, J.A.
CONCURRED IN BY:ISAAC, J.A., MALONE, J.A.
DATED: May 7, 2001
APPEARANCES:
Richard R. Sugden, Q.C. FOR THE APPELLANTS
Craig P. Dennis
Darrell W. Roberts, Q.C. FOR THE RESPONDENT,
Wendy A. Baker Musqueam Indian Band
John E.D. Savage FOR THE RESPONDENT,
Assessor for the Musqueam Indian Band
SOLICITORS OF RECORD:
Sugden, McFee & Ross FOR THE APPELLANTS
Roberts & Baker FOR THE RESPONDENT,
Musqueam Indian Band
Crease Harman & Company FOR THE RESPONDENT,
Assessor for the Musqueam Indian Band
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