Dupras v. Falconbridge Mines Ltd.
1993-02-16
Ontario Board of Inquiry
Monica Dupras
Complainant
v.
Falconbridge Mines Ltd.
Respondent
August 3, 1988
February 16, 1993
Before:
Ontario Board of Inquiry, Lorne Slotnick
Comm. Decision No.:
497
Appearances by:
Fiona Campbell, Counsel for the Complainant
H.P. Rolph, Counsel for the Respondent
BOARDS OF INQUIRY/TRIBUNALS — reasonable apprehension of bias — disqualification of board/tribunal — ADMINISTRATIVE TRIBUNALS — test for reasonable apprehension of bias — JURISDICTION — loss of jurisdiction due to reasonable apprehension of bias — PROCEDURE — procedural fairness
Summary: The Board of Inquiry rejects a motion by the respondent to disqualify himself from hearing the complaint on the grounds that there is a reasonable apprehension of bias in this case because the Board of Inquiry, Lorne Slotnik, is employed as a Local Representative with a union. The respondent Falconbridge Mines Ltd. argues that a reasonable person could expect the Board to have a bias in a case such as this, which involves a complaint by a former employee against an employer.
The Board finds that the issue of bias arises either because of a direct connection between an adjudicator and one of the parties, or because an adjudicator had expressed a view publicly on a specific issue on which he or she was then called upon to adjudicate. The Board finds that neither of these factors is present in this case. A reasonable observer, looking at the fact that this is a non-unionized workplace, that the Board has no connections to any of the parties and has expressed no public views on the factual or legal issues to be adjudicated, would say the Board is approaching the case as an independent and open-minded adjudicator.
The Board of Inquiry declines to disqualify himself because of reasonable apprehension of bias.
Cases Cited
Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369: 16
Gale v. Miracle Food Mart (No. 5) (1992), 1992 CanLII 14223 (ON HRT), 17 C.H.R.R. D/509 (Ont. Bd.Inq.): 17
Large v. Stratford (City) (1992), 1992 CanLII 7612 (ON CTGD), 9 O.R. (3d) 104, 17 C.H.R.R. D/17 (Ont. Ct. (Gen.Div.)): 16
Metropolitan Properties v. Lannon, [1968] 3 All E.R. 304: 16
Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623: 15
Nishimura v. Ontario (Human Rights Comm.) (1989), 1989 CanLII 4317 (ON HCJ), 70 O.R. (2d) 347, 11 C.H.R.R. D/246 (Ont. Div.Ct.): 10
Refrigeration Workers Union, Local 516 v. British Columbia (Labour Relations Board) (1985), 1985 CanLII 706 (BC SC), 19 Admin. L.R. 65 (B.C.S.C.): 16
Szilard v. Szasz, 1954 CanLII 4 (SCC), [1955] S.C.R. 3: 16
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 2, 7, 26
s. 45(1): 28, 32
Labour Relations Act, R.S.O. 1980, c. 228, s. 45(8): 26
1This is a ruling on a preliminary motion by the respondent Falconbridge that I disqualify myself from hearing this case because of a reasonable apprehension of bias.
Simply put, Falconbridge's argument is that an apprehension of bias arises because, besides being an adjudicator in human rights cases, I am employed by a trade union. The argument is that a reasonable person could expect me to have a bias in a case such as this, which involves a complaint by a former employee against an employer.
2I was appointed in May 1992 by the Minister of Citizenship as a part-time member of the boards of inquiry panel that conducts hearings under the Human Rights Code [R.S.O. 1990, c. H.19]. On September 25, 1992, the Minister of Citizenship appointed me as a board of inquiry to hear and decide this complaint.
3There are no full-time members of the board of inquiry tribunal. Virtually all board of inquiry adjudicators have other full-time or part-time employment, although some are self-employed. In my case, I am employed full-time as a local representative of the Southern Ontario Newspaper Guild, a union representing employees in the newspaper, magazine and book publishing fields. I am a member of that union, and also a member of another union which represents me and other employees on the staff of the union. I was called to the Ontario Bar in 1979.
4The Southern Ontario Newspaper Guild is a local of The Newspaper Guild, based in Silver Spring, Maryland, U.S.A. It is affiliated with central labour organizations such as the Ontario Federation of Labour and the Canadian Labour Congress.
As a Local Representative with the union, I represent employees in collective bargaining with employers, in the grievance and arbitration procedures, and in negotiations and proceedings under the Pay Equity Act [S.O. 1987, c. 34].
5The respondent Falconbridge is a large and well-known employer in the mining industry. The workplace where the complaint arose, at Timmins, has no employees represented by a union. Employees at other Falconbridge workplaces are represented by unions, some of which are affiliated to the central labour bodies mentioned above, and some of which are not. No Falconbridge employees are represented by any local of The Newspaper Guild.
6I have no business, personal or other connections whatsoever to the complainant Monica Dupras, or to the respondent Falconbridge, nor were any alleged.
However, Falconbridge argues that, as a union staff member, I can reasonably be perceived as being a partisan or advocate on behalf of trade unions and employees. Thus, the company argues, there is a reasonable apprehension of bias whenever I am appointed to hear any complaint that arises from an employment relationship.
7Counsel for Falconbridge describes the Human Rights Code as one of Ontario's primary employment statutes, a statement with which I agree. He says a reasonable observer would expect me, as a union staff member, to have a general commitment to the interests of unions and employees, and a "natural disposition" in favour of the interests of employees where there is a conflict between an employee and an employer.
He adds that being a full-time union staffer illustrates an ideological commitment on my part to the cause of workers generally, such that I can be regarded not just as an advocate for the members of my own union, but for all employees.
8Falconbridge argues that there is no cause for concern if an advocate gives up that role to become a neutral adjudicator, but that a person in my position cannot be expected to be perceived as neutral when I function as an advocate one day and an adjudicator the next.
9Counsel for Falconbridge pointed to several provisions in the constitution of The Newspaper Guild and the bylaws of the Southern Ontario Newspaper Guild, which were filed as exhibits.Those provisions illustrate that The Newspaper Guild, like most unions, has some commitment to issues beyond the bargaining table and to the interests of workers generally. The constitution also obliges each local to set up a human rights committee, a committee in which I have not participated.
10The union's collective bargaining program, appended to its constitution, requires locals to campaign against discrimination by employers against women and minority groups, and to attempt to negotiate non-discrimination clauses in collective agreements. Counsel has also pointed to the case of Re Nishimura v. Ontario Human Rights Commission (1989), 1989 CanLII 4317 (ON HCJ), 70 O.R. (2d) 347 [11 C.H.R.R. D/246], in which the Southern Ontario Newspaper Guild appeared as an intervener challenging the Commission's refusal to deal with a complaint of sex discrimination in pay by several members of the union employed by the Toronto Star. I had no personal involvement at all in that case.
11I do, however, accept Falconbridge's statements that the union which employs me sees itself as committed at some level to the broader labour movement, to the interests of employees generally, and to the cause of human rights.
Counsel for Falconbridge argues that there may be occasions when I, as a union representative, may seek to use the Human Rights Code to advance the interests of my union's members. I agree.
12As an alternative to its main argument that I should be disqualified from all employment-related cases, Falconbridge says I should at least be disqualified from hearing this particular complaint because of the issues it raises. Counsel says this complaint raises a novel issue of employer liability for the actions of employees; if I rule in a certain way, Falconbridge argues, it could expand the scope of employer liability — an outcome that might benefit trade unions.
13Counsel for the Ontario Human Rights Commission made a brief statement at the hearing of this motion, saying it was inappropriate for the Commission to take a position on whether I should disqualify myself. However, she added that unions are increasingly being named as respondents in human rights complaints and it is thus incorrect to assume that unions will always be on one side of a human rights issue.
14The Commission also disagrees with Falconbridge's argument that this case raises a novel issue of employer liability. Unions would not have any more of a vested interest in the outcome of this case than in any other case, the Commission says. Counsel added that it is important to have board of inquiry chairs who have an understanding of human rights issues, which could include having chairs who are active or have been active in advocacy groups.
15The legal test for reasonable apprehension of bias was set out clearly by the Supreme Court of Canada in the Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities)case, 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 at 636:
The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.
The Supreme Court in that case said an unbiased appearance is an essential component of procedural fairness for all boards and tribunals, but that the standard will vary depending on the type of board making the decision. Tribunals that are primarily adjudicative in their functions will be held to the strictest standard — the same standard as used by the courts (at p. 638):
That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision.
Counsel for Falconbridge argued that boards of inquiry under the Ontario Human Rights Code should be held to this strict standard, and I agree.
16I was referred to a number of other cases on bias by counsel, including Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369; Szilard v. Szasz, 1954 CanLII 4 (SCC), [1955] S.C.R. 3; Metropolitan Properties v. Lannon, [1968] 3 All E.R. 304; Refrigeration Workers Union, Local 516 v. Labour Relations Board of B.C. (1985), 1985 CanLII 706 (BC SC), 19 Admin. L.R. 65; and Large v. City of Stratford (1992), 1992 CanLII 7612 (ON CTGD), 9 O.R. (3d) 104 [17 C.H.R.R. D/17].
In each of these cases, the issue of bias arose either because of a direct connection between an adjudicator and one of the parties, or because an adjudicator had expressed a view publicly on a specific issue on which he or she was then called upon to adjudicate.
In this case, neither of those factors is present: I have no connection to either party, nor have I expressed any thoughts or opinions about the matters to be adjudicated.
17I was not referred to any case in which an adjudicator's outside activities or employment gave rise to an allegation of possible bias where those outside activities had no direct connection to the parties or the specific issues to be adjudicated.
However, a recent Board of Inquiry decision by Prof. Constance Backhouse, Gale v. Miracle Food Mart, (unreported) July 7, 1992 [now reported 1992 CanLII 14223 (ON HRT), 17 C.H.R.R. D/509], raises some similar issues. Respondents in that case argued there was a reasonable apprehension of bias on the part of Prof. Backhouse because she was among the complainants in a human rights case that raised some similar issues, and because of her activity in feminist groups and causes.
18The portion of the Gale ruling, supra, dealing with Prof. Backhouse's involvement with another complaint has no application here. However, I believe some of Prof. Backhouse's observations regarding her feminist activities are pertinent [p. D/511, paras. 13–14]:
It is my view that the respondents have not established a reasonable apprehension of bias through their submissions concerning my alleged expertise in feminist legal theory . . . None of these writings, activities or organizations pertains directly to the parties before this hearing . . . To determine otherwise would risk removing from boards of inquiry, and by logical extension other administrative tribunals and courts, all those who have written or otherwise expressed opinions on feminist matters . . . The absurdity of such a ruling becomes apparent when we realize that only individuals who had restricted themselves to complete silence and inactivity on all questions relating to matters before them could be considered "neutral."
19Counsel for Falconbridge argues that this reasoning does not apply to me because Prof. Backhouse is an academic while, in my case, my entire employment by the union is dedicated to furthering the interests of employees.
However, I believe the essence of the objection to Prof. Backhouse is that because of her strong opinions and involvement in feminist causes, she is predisposed to rule in favour of women when women bring a complaint. I believe this, with the context changed to employees and employers, is also the essence of the objection against me.
20The difficulty with this argument is that it raises an apprehension of bias in a specific case simply because of a general set of beliefs that an adjudicator has or is presumed to have. It presumes that an adjudicator is defined solely by his or her general beliefs rather than his or her perceived fairness and lack of bias in a specific case.
21In my view, the requirement of freedom from bias means that an adjudicator be perceived, above all, as independent of the parties and as open-minded on the issue to be adjudicated. It does not mean that the adjudicator is to have no opinions at all about how society works or what causes should be supported or opposed. If that were so, few, if any, adjudicators in any forum could claim they are free from bias or the perception of bias.
22It is a matter of public record that roughly three-quarters of the complaints that are processed by the Ontario Human Rights Commission arise from employment relationships. It is fair to assume that the types of cases brought to a hearing before boards of inquiry would reflect that ratio also. To adopt Falconbridge's view would mean that there was an apprehension of bias in all of these cases — including those that arise in a non-union workplace such as Falconbridge's operation.
23I cannot accept that view. I believe that a reasonable observer, looking at the fact that this is a non-unionized workplace, that I have no connections to any of the parties, and that I have expressed no public views on either the factual or legal issues to be adjudicated, would say that I am approaching this case as an independent and open-minded adjudicator.
I do not believe a reasonable person informed of the facts would perceive bias in my enforcement of a public policy statute simply because I work as an advocate for employees in private negotiations with employers, unless a clear and direct vested interest in the outcome can be demonstrated.
No such vested interest by me in this case has been demonstrated.
24I cannot see that it makes any difference that the constitution of the union that employs me has several references to the promotion of human rights. Promotion of human rights is public policy in Ontario, and these constitutional provisions say nothing about how I might decide any individual case, including this one. Nor do the vague statements in the union constitution supporting the broad public goals of the labour movement say anything about how I personally might decide a particular case. My duty as an adjudicator is to enforce the Ontario Human Rights Code, not a union constitution.
25I do not believe it makes any difference to this case that I am a current, rather than former, employee of a union. Any adjudicator must be careful not to allow past or present affiliations to interfere with his or her open-mindedness, even if they do not raise a reasonable apprehension of bias. I am conscious of that duty.
Because I currently hold the union staff job, I recognize that there may be cases that I should not hear because of reasonable apprehension of bias. But I disagree with Falconbridge's argument that I should be disqualified from all employment-related cases.
26I want to also deal with the arguments raised by Falconbridge that this particular case raises issues which, given a certain interpretation, could benefit unions. Falconbridge points out that recent amendments to the Ontario Labour Relations Act [R.S.O. 1980, c. 228], specifically the new s. 45(8), will likely increase the use of the Ontario Human Rights Code in labour arbitrations, so that unions may have a direct interest in certain interpretations of the Code.
27This particular case, according to the complaint, arises from allegations that male employees were watching female employees through holes above the women's shower area. I have been asked to determine whether the employer violated the Code through sexual discrimination in employment on the basis of a poisoned environment.
28Counsel for Falconbridge argues that much in this case will turn on whether the conduct complained of is discrimination or harassment, since the rules for employer liability differ between discrimination and harassment, under s. 45(1) of the Code:
45(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 [harassment] and subsection 44(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.
29It appears from a reading of the complaint and listening to counsel for Falconbridge that a number of factual issues will be in dispute. Counsel for Falconbridge argues that an interpretation of the Code in this case that makes the employer liable can be regarded as an attractive outcome for trade unions. However, the Human Rights Commission disagrees that this case raises any novel issues of interpretation.
30In light of the above, I have difficulty assessing Falconbridge's argument before the case is heard. However, I will assume that the case does raise the possibility of holding employers liable in actions for which they have not previously been held liable.
31Even under those circumstances, I do not think I should be disqualified because of the possibility that, in a case that has not arisen yet or may never arise, I could use a particular interpretation of the Code to benefit someone I might represent in another capacity. Everyone in the province stands to gain or lose from certain interpretations if a test that remote is used.
32I note also that s. 45(1) also sets out the rules for liability by trade unions, so that an interpretation that expands employer liability for certain actions could also expand the liability of trade unions. Thus, it could just as easily be argued that I would have a vested interest in an interpretation that benefits Falconbridge.
For these reasons, I find no reasonable apprehension of bias. I would ask the Registrar to schedule a conference call so that we can set dates for the continuation of the hearing.