A. Complainant
Ontario Human Rights Commission Commission
v.
Jerome Colloredo-Mansfeld, Sarah Eileen Clarke and Chris Clark Respondents
Date of Complaint: July 19, 1990 Date of Decision: October 21, 1993 Before: Ontario Board of Inquiry, Ronald W. McInnes Comm. Decision No.: 556
Appearances by: Russel Armstrong, Counsel for the Complainant Naomi Overend, Counsel for the Commission Arthur Pollack, Counsel for the Respondents
JURISDICTION — jurisdiction to hear complaint where board member is a party in another human rights proceeding — reasonable apprehension of bias — BOARDS OF INQUIRY/TRIBUNALS — bias
Summary: The Board of Inquiry declines to step down because the respondent claims to have a reasonable apprehension that he will be biased in favour of the Ontario Human Rights Commission.
The respondent agrees that because Mr. McInnis is a complainant in a human rights case dealing with an issue of discrimination based on handicap, he cannot be an impartial adjudicator in this case. At issue in complaint of A. is harassment in accommodation based on the complainant being a francophone and having a same-sex partner. The respondent contends that Mr. McInnis will be biased in favour of the Commission because he hopes for a favourable outcome to his own complaint.
The Board of Inquiry rejects the respondent's argument, finding that the apprehension of bias is not reasonably held and not based on relevant facts and sound analysis.
Involvement as a party in another case where the issues are different and the decision of the adjudicator can have no effect on the outcome of the other proceedings is not grounds for removing an adjudicator.
The motion is dismissed.
[See also: (1993), C.H.R.R. NP/94-51 and (1994), 1994 CanLII 18420 (ON HRT), 23 C.H.R.R. D/328.]
Cases Cited
Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716: 10
Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm.) (No. 3) (1993), 1993 CanLII 8616 (ON CTGD), 13 O.R. (3d) 824, 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97 (Gen.Div.): 8
R. v. Gough, [1993] 2 All E.R. 724: 13
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19: 1
1This inquiry involves a complaint [under the Human Rights Code, R.S.O. 1990, c. H.19] dated July 19, 1990 (the "complaint"), alleging discrimination in accommodation on the basis of place of origin, ethnic origin, harassment and reprisal. At the commencement of the hearing on August 30, 1993, counsel for the Commission also advised that evidence would be led which might tend to show that the alleged discriminatory practices were also based on the prohibited ground of sexual orientation.
2At the outset of the hearing, I was asked by counsel for the Commission and counsel for the complainant to order a ban on publication of the name of the complainant and of one of the principal witnesses including any information with respect to these persons which might reasonably lead to their identities being divulged. This motion was resisted by counsel for the respondents and was taken under advisement. Until a decision was rendered, I ordered an interim ban as requested. Because of intervening events, I have not made a final order in this regard and, as the interim order is still outstanding, neither the name or the complainant nor the witness will appear in this interim decision.
3On September 2, 1993, counsel for the respondents brought a motion asking that I disqualify myself from this matter on the basis that there was a reasonable apprehension of bias on my part because I have a complaint outstanding before the Ontario Human Rights Commission. Counsel based his submissions on "knowledge that I obtained yesterday." I can only assume that this knowledge came from a newspaper article which appeared the previous day since there has been no request for a copy of the complaint in which I am involved nor was any reference made to the specifics of that complaint other than information which appeared in the newspaper article.
4At the time this motion was brought, respondents' counsel was part-way through the cross-examination of the complainant's live-in partner. The next witness for the Commission had been flown in from British Columbia for that day partially in response to the objections of respondents' counsel that he would not be able to properly cross-examine if such evidence were taken by speaker phone. I advised counsel that I wished to take this motion under advisement and deliver written reasons but, with the consent of all parties, was prepared to proceed that day to complete the cross-examination and hear the witness from British Columbia. I had been made aware that other legal proceedings scheduled to be heard in September were pending between the parties and I hoped to avoid leaving the witness in the awkward position of being unable to discuss his evidence for what might prove to be a protracted period of time. Counsel for the respondents took the position that he was not, under any circumstances, prepared to proceed further that day and was requesting an adjournment regardless of the decision I might come to on the motion. In the result the hearing was adjourned sine die.
5For the record, the complaint which I filed on October 18, 1990, is against a playhouse in Metropolitan Toronto which I alleged discriminated against me on the basis of handicap with respect to the provision of services. The only issue is the extent to which a theater, offering services to the public, is obliged to make its facilities accessible to persons in wheelchairs. Minutes of settlement were entered into between myself and the respondent in this complaint in October 1992 but the settlement was not approved by the Commission. Accordingly, the matter remains outstanding.
6On the basis of the complaint in this proceeding and the evidence that I have heard to date, it would appear that the issue in this case is whether certain actions alleged to have been taken by some of the respondents, alleged to be superintendents or agents of the landlord, were for the purpose of harassing the complainant from his apartment. The allegation is that the motive behind such actions was that the complainant is a francophone or a homosexual or both.
7Counsel for the respondents conceded that the issues in my complaint were not the same as in this hearing. I understand his submission to be that there is a reasonable apprehension of bias when any person who is a complainant before the Commission acts as an adjudicator in any human rights complaint to which the Commission is a party. He characterized this as a "conflict of interest" and stated that there was "a reasonable bias [basis?] on the part of my clients to suggest that you may be favouring the Commission because you want them to find in your favour when your case comes up." He purported to buttress his position by stating that human rights complaints differ from other cases in the judicial system and are dealt with in a very specific manner. In response to an analogy which I presented, it was his position that there would be no conflict of interest in a criminal court judge continuing to hear cases where that judge had been the victim of a crime and was, presumably, relying on the police and the crown attorney's office to bring his case to a successful resolution.
8The only case cited by counsel was Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (since reported at (1993), 1993 CanLII 8616 (ON CTGD), 13 O.R. (3d) 824 [1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97]). This was a decision of the Ontario Court, General Division, delivered June 7, 1993, which allowed an application to quash proceedings before a board of inquiry on the basis of reasonable apprehension of bias. The alleged violations of the complainant's rights in that case fell generally under the headings of "sex discrimination" and "systemic sex discrimination."
9The Board in that case was one of 120 people who had filed a complaint about five years earlier with the Commission alleging violations of the provisions of the Code by reason of systemic sex discrimination. In addition, the Board had been elected by the complainants to serve as one of a twelve-member steering committee. A memorandum of settlement of the issues raised in the complaint had been entered into and the matter was designated as "inactive" by the Commission. However, because there had been no formal settlement of the issues and the complaint had not been withdrawn, it remained classified as "outstanding."
10The relevant portion of the reasons of the Court for its decision are found at p. 834 [D/101–D/102, paras. 40–43]:
All counsel agree that the appropriate test to employ when determining if there is a reasonable apprehension of bias is derived from Mr. Justice de Grandpré's dissenting opinion in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716. The test put forward in that case would require an analysis of the relevant facts by a reasonable and right-minded person who was well informed as to the issues.
In our view, the unique aspect of this case is that Miss Backhouse went beyond the position of an advocate and descended personally, as a party, into the very arena over which she has been appointed to preside in relation to the very same issues she has to decide.
By becoming a personal complainant before the very commission that was prosecuting the similar case before her, she personally selected one of the parties before her as her own advocate to pursue her personal complaint about the same issue.
Counsel are in agreement that there has been no decided case in this province which deals with an allegation of systemic discrimination on the grounds of sex. Miss Backhouse is therefore in a position, in this case, should she continue as the Board, to vindicate the position she had taken as a personal complainant in a similar case. It is trite to state that simple justice requires a high degree of neutrality. We do not think that would be attained if Miss Backhouse was to continue as the Board. In our opinion, the appropriate test has not been met. [Emphasis added.]
The foregoing passage makes clear that the concern of the Court was with respect to the Board being personally involved in a complaint dealing with the very same issue (systemic sex discrimination) as she had to decide in the hearing in which she was the adjudicator and that, accordingly, she would have a unique opportunity to render a decision vindicating the position which she had personally taken with respect to her own complaint. Counsel for the respondents agreed with this interpretation of the decision but submitted that so long as I had a complaint outstanding before the Commission, regardless of the issue involved, I should disqualify myself from acting as an adjudicator. He made no reference to the test put forward in the Committee for Justice & Liberty [1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369] case but appeared to rely solely on the perception of his clients that I would favour the Commission in order to induce it to act favourably with respect to my own complaint.
11By definition, any apprehension of bias must be reasonably held. It is for this reason that there is an objective rather than a subjective test. It is not acceptable in any judicial or quasi-judicial proceeding that a party may require the removal of an adjudicator, duly appointed to hear a matter, simply because they have a personal view that the adjudicator may have a conflict of interest or bias in favour of another party. The relevant test requires a conclusion reached on "an analysis of the relevant facts by a reasonable and right-minded person who was well informed as to the issues." In my view, involvement as a party in another case under the Ontario Human Rights Code, where different issues are at stake and the decision can have no effect on the issues in the other proceeding, ought not to constitute grounds for removal of an adjudicator who has been appointed by the Minister of Citizenship to chair a board of inquiry in a human rights proceeding.
12As part of her response, counsel for the Commission submitted that it would have a "chilling effect" on the process of attempting to recruit adjudicators from various minority groups — those persons who are most likely to be protected against discrimination through the Human Rights Code — if such people were, in effect, required to renounce their right to bring a complaint in order to act as adjudicators. It would also discourage the panel of present adjudicators from lodging complaints in appropriate circumstances, knowing that they would have to resign or, at least, become inactive until the process involving their complaint was concluded — unfortunately, often a matter of several years under current conditions.
13I have also considered the recent decision of the House of Lords in R. v. Gough, [1993] 2 All E.R. 724. This was a criminal case. After conviction a juror realized that Gough's brother, who had been charged with Gough but discharged before trial, had been her neighbour. The question that the House of Lords faced on appeal was whether the presence of the juror could give rise to an inference of a possibility of bias on her part against Gough justifying his conviction being quashed.
14Lord Goff gave the leading speech for the Lords. He stressed that he was stating a test for bias applicable in all cases and not just in relation to juries. The earlier test in England of "whether a reasonable and fair-minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial of the defendant was not possible" was rejected. He concluded at p. 737:
Accordingly, having ascertained the relevant circumstances, the Court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard . . . with favour, or disfavour, the case of a party to the issue under consideration by him . . .
In the result, the appeal was dismissed as there was no ground for disturbing the jury's verdict.
15The comment in Reid's Administrative Law (2 R.A.L. 219) notes that under this test it is a real danger of bias which is required rather than merely an appearance of bias. The sensitivities or scruples of the applicant are irrelevant.
16I accept that this test has not been adopted in Canada and do not rely on it in this decision. I do, however, take some comfort from the direction of the House of Lords with respect to the relevance of the perception of the applicant.
17The simplest approach for me would be to withdraw from these proceedings. It will no doubt be difficult to continue knowing that the respondents presumably question my impartiality. On the other hand, I feel it would be unfair to the complainant and to the process to accede to this request.
18In conclusion, in my view it would be improper for me to disqualify myself on the basis of the respondents' arguments relating to reasonable apprehension of bias. Counsel for the parties will be advised of a date for a conference call to schedule dates for the continuation of this hearing.