Ontario Human Rights Commission and Henry v. Kuntz, 2003 HRTO 15

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Fitzalbert Henry

Complainant

-and-

Andreas Kuntz and Mrs. Beasley’s Bake Shop Inc.

Respondents

INTERIM DECISION

Adjudicator: Steven J. Faughnan

Date: July 17, 2003

Citation: 2003 HRTO 15

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168

APPEARANCES

Ontario Human Rights Commission ) Eddie Taylor, Counsel

Fitzalbert Henry , Complainant ) In person

Andreas Kuntz, Mrs. Beasley’s Bake Shop Inc., ) Andreas Kuntz

Respondents )

INTRODUCTION

1This matter arises from a Complaint that the Respondents discriminated against the Complainant in employment. The case has been emotional and sometimes difficult for both the Complainant and the personal Respondent. The Complainant is not represented. The Respondents are also not represented and Mr. Andreas Kuntz acts for himself and the Corporate Respondent. Mr. Eddie Taylor acts for the Ontario Human Rights Commission (the “Commission”). The motion for bias came after the Complainant and the Commission had completed their case in chief and the Respondents commenced their defence. This decision addresses an interim motion brought by the Complainant alleging bias against me. The motion proceeded by way of written materials supplemented by oral submissions made during a telephone conference call hearing.

DECISION

2The motion is dismissed.

The Proceedings to date

3In the decision that follows I refer to some matters so that the grounds for the motion can be put into context. I must be cautious not to make any rulings on evidence or credibility or discuss the evidence in detail, as not all the evidence has been heard. Although some of the submissions made and events at the hearing may not be explicitly set out in the decision that follows, I have considered all the submissions made and events at the hearing in rendering this decision.

4Shortly after conducting a telephone conference call with the parties on June 20, 2002, the original adjudicator assigned to the case resigned from the Tribunal due to other professional commitments. The case was reassigned to me. The first step that took place after my assignment was to hear a motion brought by the Commission requiring the Respondents to deliver a Response in accordance with Rule 36 of the Tribunal’s Rules of Practice (the “Rules of Practice”), as the Commission was not satisfied with the Response that the Respondents had filed, and to provide witness statements. A telephone conference call was held on September 20, 2002 to address the issue and it was ultimately ordered that the Respondents provide a Response and witness statements. With respect to the substance of the Response, as confirmed at paragraph three of a letter from the Tribunal dated September 20, 2002, confirming the matters that were determined on the call, by October 2, 2002, the Respondents were to provide to the other parties and to the Tribunal a Response:

…that sets out a response to each item from (a) to (t) in the Complaint dated February 13, 2001, in the same sequence as that found in the Complaint. The Response must indicate if the Respondents agree or disagree with the item and if they disagree, why, by setting out the Respondents’ version of the facts on which the Respondents’ rely in response.

5With respect to witness statements, the letter confirmed that the following was determined at that conference call:

By September 27, 2002, the parties are to provide to each other a list of witnesses they intend to call, and if those witnesses have not already provided a statement, a short summary of the evidence that that witness will give at the hearing. Only a list of witnesses need be forwarded to the Board.

6Instead of filing a new Response, Mr. Kuntz simply provided a copy of the original Response with a covering letter stating, amongst other things, that he was unable to figure out the difference between his original Response and the requirements of my Order. In a letter dated October 3, 2002, the Commission took issue with this failure, alleging that the Respondents were wilfully ignoring my Order.

The first day of hearing - October 7, 2002

7At the scheduled start time of 10:00 a.m. the Commission and Mr. Kuntz were in attendance. The Complainant was not present. After waiting a period of time, I suggested that the Commission attempt to contact the Complainant by telephone, which Mr. Taylor did. He reported that the Complainant slept in and would attend at 11:15 a.m. I commenced the hearing at approximately 11:30 a.m. and after hearing submissions, advised that the hearing would adjourn until the afternoon and would recommence whether the Complainant was present or not. As I left the hearing room Commission counsel advised that the Complainant had just arrived.

8When the hearing reconvened at approximately 1 p.m., all the parties were present. Mr. Henry apologized for being late. Mr. Taylor opened the hearing by requesting that the Tribunal find the Respondents in contempt for their failure to abide by the Tribunal’s Order made in the conference call on September 20, 2002. After hearing submissions on the matter, but without a finding of contempt, I allowed the Respondents to purge any possible contempt by forthwith drafting a handwritten Response and providing it to the Commission and the Complainant. Mr. Kuntz did so and the Commission quickly reviewed it submitting that a determination whether this Response satisfied my Order could be made the following day. I agreed to proceed on that basis.

9I then granted the Commission’s request for a witness exclusion order, and immediately thereafter the Commission advised that it had some concerns about the statements of proposed witnesses for the Respondents that were not interviewed by the Commission. Mr. Taylor advised that he would object when those witnesses were called.

10Opening statements were given and Mr. Henry was sworn as a witness. At the start of his examination-in-chief, which was conducted by Mr. Taylor, the Complaint and the title of proceedings were amended to reflect the correct name of the Complainant, Fitzalbert Henry. Finally, the examination-in-chief of the Complainant was commenced and ultimately was carried over to the following day.

The second day of hearing - October 8, 2002

11On the next hearing day only the Commission and Mr. Kuntz were in the hearing room when the matter convened at approximately 10:02 a.m. At approximately 10:20 a.m., as I was about to adjourn the hearing, the Complainant arrived. The hearing then began by the Commission advising that there were two matters to address. The first was that the Commission had added a witness named Paul Thompson to their witness list. The second was that in the Commission’s view the handwritten Response provided by the Respondents did not satisfy the requirements of Rule 36 of the Rules of Practice. Notwithstanding the Commission’s dissatisfaction, Mr. Taylor advised that the Commission would not be pursuing the contempt motion but reserved the right to call Reply evidence, if necessary. I agreed that the Commission could proceed on that basis. The examination-in-chief of the Complainant continued.

12At the outset the Complainant apologized for being late and explained that it was difficult for him to leave the house, that coming to this hearing made him feel as if he was coming to the bake shop and he felt like he was going through “torture”. This he said was making him ill and causing him difficulty sleeping. I accepted his apology and to put him at ease offered that a hearing could be a stressful experience for all the participants, including myself. I advised however, that the earlier we start, the earlier we finish.

13The examination-in-chief of the Complainant began in an orderly fashion. During the course of his examination Mr. Henry was shown some typewritten notes and a request was made to have Mr. Henry use the notes to refresh his memory. The Respondent objected. Mr. Henry advised that he did not prepare the notes but that the notes were quite close to an accurate reflection of his handwritten notes, which no longer existed. I ruled that although I was somewhat reluctant to do so because of the unknown origin of the typewritten notes and the absence of the handwritten notes that were their source, factors that I could consider when weighing the evidence, in all the circumstances Mr. Henry could keep the notes close at hand. I asked that Mr. Henry advise when he is using the notes if necessary to refresh his memory. For the sake of the record the notes were made an exhibit.

14Shortly after my oral ruling, in the course of the continuation of his examination-in-chief, Mr. Henry volunteered that he didn’t need to refer to the notes. I stated, “good for you.”

15Mr. Henry was emotional at times during his examination-in-chief, once placing his head on the witness box table apparently overcome by emotion. Noticing this I suggested that there be a fifteen-minute break. When the Complainant regained his composure his examination-in-chief continued. A number of questions after further hearing dates were set, the Complainant broke down crying and I adjourned the hearing to the following day.

The third day of hearing - October 9, 2002

16Because of the unavailability of the venue where the hearing had taken place the previous two days, the hearing was to take place at the offices of Gillespie Arbitrations in Ottawa. The room in which the hearing was held was a room typically used for examinations for discovery and was somewhat cramped. When the hearing convened all were present. The examination-in-chief continued, and at one point Mr. Henry had a number of documents spread in front of him. I asked him if he could turn the other papers over and refer only to the Complaint, when he was being asked questions. I also advised Mr. Taylor that if he wished to refer Mr. Henry to an exhibit he could take it out and show it to him.

17During his examination-in-chief, to demonstrate discrimination at the workplace, Mr. Henry related a story he had heard involving an individual and an attendance by the police at the workplace.

18In the course of the examination the Commission requested an amendment of item M of the Complaint regarding the number of hours set out in that paragraph. Mr. Taylor submitted it was an error. I advised that because it was an error, an amendment was not necessary.

19As Mr. Henry was being examined, in addition to the items referred to above, I asked him a number of questions for the purpose of clarifying the answers he gave. At the end of Mr. Henry’s examination-in-chief, I pointed out that there is an onus on the Complainant to prove mitigation and damages and Mr. Henry gave a short statement. At the end of the statement, and the completion of the examination-in-chief of the Complainant, Mr. Kuntz requested an adjournment to the following day to prepare questions. The Commission objected to the request. I refused the adjournment request but allowed Mr. Kuntz an extra half-hour to prepare and advised that I would give him latitude because he was not represented.

20The cross-examination of the Complainant began in earnest. At the end of the cross-examination Mr. Kuntz again requested that the matter be adjourned, this time to October 20, 2002. This request was also refused. Mr. Kuntz remarked that he knew that I would say that. No one reacted to this statement.

The Fourth day of hearing – October 10, 2002

21The hearing continued at Gillespie Arbitrations in Ottawa. On this day the Complainant arrived approximately seven minutes late, explaining that public transit had delayed him. His cross-examination was continued. In dealing with a discussion about how Mr. Kuntz had characterized what the Complainant’s evidence on a point had been a previous day, Mr. Taylor stated that this was one of the problems with not having an official record.

22The cross-examination continued without major incident until the Complainant refused to answer a question on the basis of relevance and stated that the matter was not being taken seriously. At that stage I pointed out to Mr. Henry first, that he has commenced the Complaint and Mr. Kuntz is defending himself, second that as I had explained previously the Respondents are entitled to show a non-discriminatory reason for their actions and lastly, that I could assure him that I was treating the matter seriously. Mr. Taylor emphasized that this is a fact gathering process and each party will have the opportunity to make submissions at the end.

23Later on in the examination while he was being questioned, I inquired whether Mr. Henry was reading from notes in front of him. He replied that he was not. I asked him to turn them over, which he did.

24Then, during an exchange between Mr. Taylor and Mr. Kuntz regarding the impact of Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) (“Browne v. Dunn”) on an evidentiary point in this proceeding, Mr. Henry had this to say with respect to Mr Kuntz:

Andy, you’re in grade four kindergarden. I don’t think you (sic) graduate from high school. You don’t know what you’re doing and you’re wasting my time and I don’t like being tortured, treated under some racist treatment from you. I don’t think makes matters better or easier.

25No comment on was made on this outburst. I asked if there was any objection to me providing Mr. Kuntz with an excerpt from The Art of Trial, White, 1993 Canada Law Book Inc. discussing the impact of Browne v. Dunn. There was no objection, so I provided Mr. Kuntz with the excerpt.

26Later on in response to various questions, the Complainant used the opportunity to accuse Mr. Kuntz of criminal racist behaviour, that Mr. Kuntz was being absurd and belligerent in his questioning and that he had better make a settlement with the Complainant. Mr. Kuntz attempted to continue to ask questions, but was he himself was overcome by emotion asking and receiving a five-minute break. Mr. Henry took that opportunity to state to Mr. Kuntz, “see that Kleenex, that’s what you’re going to come back as.” Mr. Kuntz did not reply. I instructed Mr. Henry that when he is responding to a question he is to stick to the facts.

27The cross-examination continued. In the midst of a reply to one of Mr. Kuntz’s assertion that his other employees will say he addresses them as “Sir” or “Mr.” the Complainant offered that Mr. Kuntz would address him in a belittling tone and manner and went on to say:

…Let me put it to you this way, you know the KKK, first that’s what I think you are. Secondly, the KKK calls every black man boy but it was your tactics to call me Sir in a belittling way as though you’re talking to your cat….”

28At this Mr. Kuntz became visibly upset but made no comment. I took the opportunity to confirm the next hearing dates and adjourn the matter over to the next day.

The fifth day of hearing – October 21, 2002

29The hearing continued at Gillespie Arbitrations in Ottawa. When the hearing commenced all were present and I took the opportunity to advise the Complainant to listen carefully to the questions asked and then respond, to allow Mr. Kuntz time to formulate his questions and for Mr. Taylor to choose his objections carefully. The Complainant’s cross-examination proceeded.

30The Complainant’s continued cross-examination began in an orderly fashion. However at one point in answer to a question the Complainant stated that “discrimination is not black and white, all the time is it when you have some agenda you know the person you’re discriminating against already feel your powers of being a purist bastard…”. I do not believe that Mr. Kuntz overtly reacted to this statement.

31Later, in the midst of the cross-examination Mr. Taylor brought a motion for abuse of process under section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, (“SPPA”) for an order and direction as I considered proper to limit further cross-examination of the Complainant by Mr. Kuntz. The motion was denied. The cross-examination continued and all agreed to stay until 5 p.m. that day.

32Unfortunately when the Complainant used the word “bastard” in response to a question and stated “that’s a racist-you’re a racist” I realized that the hearing would have to restart another day. I advised the Complainant that one of the problems that I had in the case was that when a question is asked he did not answer it directly, but he got round to it after a time. I advised the Complainant that he wants me to hear the story that he wants to tell and that it is important that he answer the questions asked. After a few more questions, and discussion about the evidence of a potential witness, the matter was put over to the next day.

33Throughout the course of the Complainant’s examination-in-chief and cross-examination by Mr. Kuntz, I had asked a few short simple questions for the purpose of clarification. On a number of times when Mr. Kuntz was having difficulty asking a question, I suggested the manner in which he might frame them, although at one point during Mr. Kuntz’s cross-examination of the Complainant, I was concerned that my intervention was affecting the cross-examination. As a result, I advised Mr. Kuntz that I would stop suggesting the manner in which he could frame his questions.

The Sixth day of hearing – October 22, 2002

34The hearing continued at Gillespie Arbitrations in Ottawa. All were present when the hearing convened. The re-examination of Mr. Henry commenced on October 22, 2002. During the re-examination Mr. Taylor sought to introduce newspaper ads relating to employment at the bakery that he advised Mr. Henry had given to him that day. There was no objection to allowing him to speak to the ads. After mentioning that it is somewhat unusual, I allowed the ads to be introduced on re-examination and allowed Mr. Kuntz re-cross-examination.

35After the re-cross-examination had been completed, and a break had been provided, Mr. Kuntz advised he had one more question regarding what position the Complainant applied for. I did not allow the question and stated that the document speaks for itself. I stated to Mr. Kuntz, however, that I would hear his evidence regarding the creation of the application form.

36At that point I advised that I myself had a question for Mr. Henry. I asked Mr. Henry whether he had filled out everything on the job application form except the note on the right hand side. He replied in the affirmative.

37Mr. Taylor then advised that although she had appeared on a list of witnesses for the Commission, the Commission would not be calling Hazel Conley, Mr. Henry’s former mother-in-law. Mr. Taylor further advised that the Commission did wish to call Vivian Cange but that he had no success in contacting that witness to testify, and asked for an adjournment. Mr. Taylor advised that this witness also appeared on the witness list for the Respondents but that he was not expecting an undertaking from Mr. Kuntz to call her. He suggested reluctantly that she be the first witness on the return date. I allowed the adjournment.

38Between that hearing date and the recommencement date of January 20, 2003, the Commission advised in a letter dated January 9, 2003, that it would be resting its case and would not be calling any further witnesses. The letter requested witness statements for the 19 witnesses that were listed in a letter from the Respondents dated January 9, 2003 and the employment files of any of the witnesses who are past or current employees of the Corporate Respondent. The Commission requested in the letter that the witness statements be detailed and precise.

39In response, Mr. Kuntz forwarded a letter dated January 16, 2003, stating that he had only seen the Commission’s letter at 5:45 p.m. on January 15, 2003, and that he had not even prepared the questions he was going to ask the witnesses that he intended to call. The letter further criticizes Mr. Taylor for suddenly resting the case and asking him to provide information that he had not prepared himself.

40The Tribunal then forwarded a letter to all the parties dated January 17, 2003 advising that, if necessary, those issues would be dealt with at the hearing scheduled to recommence on January 20, 2003.

The seventh day of Hearing – January 20, 2003

41The hearing continued at Gillespie Arbitrations in Ottawa. All were present when the hearing convened. When the hearing began, the Commission advised the Tribunal that the Complainant and the Commission were resting their case, reserving the right to Reply, if necessary.

42The Commission then advised that it was requesting copies of witness statements and employee files, alleging that the Respondents were hijacking and frustrating the process, by ignoring directions and Orders that the Tribunal made. To my knowledge however, there was no specific request made by the Commission for employee files prior to the letter dated January 9, 2003. Mr. Taylor made extensive submissions on the issue and submitted that the Commission sought compliance with the Order with respect to witness statements set out in the letter dated September 20, 2002, referred to above. As Mr. Kuntz had agreed to provide the requested employee files to the Commission it was not necessary for me to rule on that specific disclosure request.

43Mr. Kuntz advised that he intended to call witnesses who observed the interaction between Mr. Henry and himself. Based on the Commission’s information, however, Mr. Taylor submitted that many of the witnesses on the list did not observe any such interaction. Time was then taken to review the list of witnesses whom the Respondents intended to call to testify. Mr. Kuntz advised that statements were given by some of the witnesses during the investigation. The Commission asserted however, that the information that they had was not sufficient, they wished to know how the witnesses are relevant, and they wanted to know in a witness statement what their anticipated evidence would be.

44On that day I varied my original order and ordered the Respondents to provide a more fulsome summary of the evidence of Brenda Pelow, Mike Carnell, Matthew Whitten, and Samantha Varacalli, and a summary of what the anticipated evidence of Vivian Cange, Paul Giustiazia, Sandria Henry, Julie Leblanc, Alex Migdal, Rizgar Zangana, Heng La and Omolara Ogunrinde will be. Mr. Taylor agreed that the witness statements could be provided before the witnesses gave their evidence but need not be provided before Mr. Kuntz testified.

45During this discussion the Complainant made an extemporaneous emotional statement and I asked the Complainant not to do so. I also asked Mr. Taylor to speak to the Complainant so that this phase of the hearing could proceed in an orderly fashion and gave a ten-minute break for that purpose. Mr. Taylor returned from the break without the Complainant. Mr. Taylor advised that the Complainant was very upset and that he was losing faith in the process, and while he will be present when Mr. Kuntz gives his evidence, he is not inclined to be present when the other witnesses testify. Mr. Taylor also advised that Mr. Henry would make submissions at the end of the day in argument. Mr. Taylor stated that the Complainant sees the conduct of Mr. Kuntz as a continuation of what the Complainant views as discriminatory behaviour by the Respondents. I then asked Mr. Taylor to bring the Complainant back in.

46When the hearing reconvened, I advised the Complainant that I valued his input and explained that the process that we are engaged in is all that we have, so this is the best that we have.

47Mr. Kuntz then began his evidence in chief, which took the form of a narrative. At times during his testimony Mr. Taylor interjected with questions that clarified the Respondents’ evidence. I took no issue with them.

48After giving evidence in chief the matter was adjourned for lunch to recommence at 2 p.m. The Complainant arrived at approximately 2:10 p.m. and Mr. Kuntz continued with his evidence. Shortly after Mr. Kuntz began his testimony, in the midst of describing a photograph, the Complainant stated that he could not go through this and that Mr. Kuntz was “farting around.” As I did not wish the evidence of Mr. Kuntz to be derailed, I asked Mr. Kuntz to continue.

49In the midst of giving his evidence regarding a statement, I asked Mr. Kuntz what statement he was referring to, and he provided a response. Then he commenced to give evidence regarding training, but the Complainant interjected yet again. He said amongst other things that Mr. Kuntz does “not benefit from lying” and that he was attacking Mr. Henry’s character and not to expect him to sit and hear it. Mr. Henry stated that that is not him and that maybe he should leave now because he couldn’t stay there listening to the inconsistencies “and sit here and suck it in.” I advised the Complainant that if he wished he could object to a question on the grounds of relevancy, but if he had a question to wait until cross-examination. I then took a five-minute break.

50After the break Mr. Kuntz returned to his evidence in chief and went through the same sequence of the Complaint as Mr. Taylor did in his examination of Mr. Henry, examining the Complaint paragraph by paragraph. When the Respondent addressed item F of the Complaint, I asked him what he meant when he used the words “partial accuracies” in his testimony and he responded. The evidence then proceeded for a time but when the discussion turned to item J in the Complaint, the Complainant interjected with comments about the pay cards, minimally disturbing the hearing. When the Complainant had finished his comments the matter continued. During the continuation the Respondent referred to “us” in describing an event in the office. I asked, “Who is ‘us’”? Mr. Kuntz replied. A short time later, the Complainant interjected again but minimally disturbed the hearing. At another point Mr. Kuntz was testifying about “changing the workstation” in relation to item M of the Complaint. I asked Mr. Kuntz, “What is ‘changing the workstation’”? Mr. Kuntz replied.

51Mr. Kuntz then continued with his testimony and came to item O of the Complaint. This involved an allegation that Mr. Henry was given the wrong paycheque. This was one of two allegations regarding paycheques in this case. At one point in his testimony, to be sure as to which cheque he was testifying about, I asked Mr. Kuntz to identify what paycheques he was referring to so. This was so that his comments could be cross-referenced to the cheques discussed in the testimony of Mr. Henry.

52At this point Mr. Henry said that he just wanted to say something because it appeared that my mind was made up. I emphatically denied this allegation by saying “absolutely not” and I continued on to have Mr. Kuntz identify the cheques at issue in this matter.

53Shortly after the comment was made Mr. Taylor asked for a short break stating that the Complainant said something that I reacted to and that he wanted to clear it up. I allowed the break.

54When he returned Mr. Taylor advised the Tribunal that he had heard from the Complainant an allegation of bias, and he wanted to make sure Mr. Henry said what he thought Mr. Henry said and what caused him to say it. Mr. Taylor stated that this did not appear to be Mr. Henry’s feeling at the last session. He advised that it was now apparent to him that Mr. Henry does feel that way and that I should hear him. Mr. Taylor suggested that if he feels that way, and if it was a misunderstanding, then we could deal with it and perhaps proceed.

55Mr. Henry was then given an opportunity to speak. He stated that the evidence that has been given at the hearing by Mr. Kuntz is “regurgitation”, that I am almost helping him in what to say and that he feels bias. This he says is because it is his belief that I am helping Mr. Kuntz to say how he should say things. He stated that he believed it would be in our best interests to bring me into the bakery to see its physical layout. He stated that through the evidence given he doesn’t feel it is an objective hearing from his end of the table. He believes that a clear message must be sent that no other employer would treat any person with such indignation.

56Mr. Henry advised that his perception tells him that I am biased. He described himself as a “pop psychologist” and he gathered this perception from seeing my eyes and hearing me breathe. He stated that he felt that I was sometimes leading Mr. Kuntz by saying do you mean to say this or that and choose carefully how you say it. Mr. Henry stated that if he were a respondent he would have gotten representation.

57To his credit Mr. Taylor took the opportunity to explain to the Complainant that I could give a party leeway without exhibiting or without it being bias. That my job is to get the story and then decide on which story I prefer. The more information that I have from any party, the better it is in the decision making process. Mr. Taylor explained that if I want clarification and don’t understand something, that I have a duty to understand it and get it right.

58In response Mr. Henry stated that Mr. Kuntz tells a lot of lies and if anyone is caught they won’t admit it and added, “lucky we’re in Canada that’s all I can tell you.”

59Mr. Taylor continued to explain that this is part of the evidence of Mr. Kuntz and the second part is cross-examination and that his role is to have me take a different view of the evidence I’ve heard so far. He added that I am an experienced adjudicator and I know there’s more coming.

60Mr. Henry then stated that he would like to see that the evidence given is done in a clear way instead of what someone copied.

61Mr. Taylor summed up by stating that he thought that he understood now what Mr. Henry’s reasons are. He stated that from the Commission’s point of view this does not equal bias. He did not think it is an allegation of bias, but rather a perception of a difference and Mr. Henry is not sure what the difference was. Mr. Taylor offered that if Mr. Henry was represented he would have discussed it with his counsel and that statement wouldn’t have been made.

62Mr. Taylor added that the Commission would not support an allegation of bias. He submitted that the decision is Mr. Henry’s whether to bring a motion. Mr. Taylor stated that after the hearing that day he would speak to Mr Henry and would give him the benefit of his knowledge and expertise. He submitted that Mr. Henry could then seek independent counsel or decide for himself.

63After Mr. Henry made some further comments, I instructed him to clarify the following morning what his intentions were with respect to his concerns regarding the matter, and my hearing of it.

The Eighth day of hearing – January 21, 2003

64The hearing continued at Gillespie Arbitrations in Ottawa. When the hearing convened all parties were present. Mr. Taylor advised that he had met with the Complainant after the hearing the day before and they discussed issues of concern to Mr. Henry. Mr. Taylor advised the Tribunal that he explained to Mr. Henry in further detail the points he had made the day before and about what point we were at in the process. He said that he explained my role in the process when a party is without representation. He said that he assured Mr. Henry that from the Commission’s point of view there is no hint of bias. He said that what he understood from Mr. Henry is that Mr. Henry’s concerns are legitimate concerns but do not reach the threshold of bias. On behalf of the Commission Mr. Taylor submitted that the matter continue.

65Mr. Henry then spoke. He stated that he thought at this time there was no need to consider the allegation as such and to proceed in good faith and that he hoped that this matter could get some closure. He stated that he was somewhat apologetic and that it was more a feeling that he was perceiving but as Mr. Taylor explained, “I’m pretty cool with [the] situation so fire ahead.”

66At that point I was prepared to continue and advised that what we could learn is that if a party does have a concern, it can be expressed and it can be addressed.

67The hearing recommenced and I advised the parties of my independent research with respect to the issue of a view of the bakery under subsection 39(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended, and some discussion ensued, with no final ruling on taking a view of the premises being made. I asked if there is a door on the freezer. Mr. Kuntz responded.

68During the course of the discussion Mr. Kuntz asked whether the interjection of the Complainant during his testimony should attract a sanction. I stated that the powers of the Tribunal to sanction conduct were discussed by Mr. Taylor the previous day, but that I was not going to sanction anything right now. My rationale for this was to attempt to press on with the hearing and at least complete this phase. After some further discussion on the issue of a freezer door, I advised all the parties that the time to make submissions on the evidence is at the end of the hearing.

69The direct examination of Mr. Kuntz continued. Mr. Taylor asked some questions for the purposes of clarification to which I took no objection. After dealing with an objection by Mr. Taylor regarding the evidence of Mr. Kuntz surrounding the Ministry of Labour, Mr. Kuntz returned to the three cheques and continued to go through the Complaint, item by item.

70In giving evidence regarding an allegation that Mr. Henry did not get paid, I pointed out that I had observed Mr. Kuntz referring to written notes when he was giving his evidence. Mr. Taylor advised that he did not object to Mr. Kuntz reading from his notes. The Complainant voiced no objection. The evidence in chief continued. During the course of the evidence documents were referred to, of which Mr. Henry did not have a copy. Mr. Taylor offered to share his copy of the exhibits, but Mr. Henry declined. I advised Mr. Henry that if at some point he wished to look at something, to mention in right away so that it can be addressed.

71In the midst of his evidence Mr. Kuntz advised that in looking through the employee files he located the T4 for Mr. Henry. This was a document that the Complainant alleged was never sent to him. Although Mr. Kuntz did not seek to make this document an exhibit, I explained that because it is a document that can be helpful to calculate wage loss, if liability is established, that I would enter it as an exhibit at the hearing, which I did.

72At this point Mr. Kuntz began to address an allegation regarding an incident that the Complainant testified to in his examination-in-chief involving the attendance of the police at the bakery. There was an objection to the relevance of this evidence. Mr. Kuntz agreed that it was irrelevant but that it was mentioned in Mr. Henry’s testimony. Mr. Taylor noted that this point was not touched on in the cross-examination of Mr. Henry, now Mr. Kuntz says it is not relevant and this would not be allowed in a typical examination-in-chief. Mr. Kuntz pointed out that Mr. Henry mentioned this incident as an example of discrimination at the workplace. Erring on the side of caution, I allowed Mr. Kuntz to describe the incident. This took very little time and his evidence turned to other matters and was completed shortly thereafter.

The Cross-examination of Mr. Andreas Kuntz on January 21, 2003

73The cross-examination of Mr. Kuntz began with Mr. Taylor explaining how he was going to proceed in the cross-examination. As I typically do when any cross-examination is about to begin and I am taking hand-written notes, I asked for the cross-examination to start slowly so that I could get up to speed in my note-taking.

74After the cross-examination began a question arose with respect the use of the word “arbitrary”, as Commission counsel was alleging that certain conduct of Mr. Kuntz was “arbitrary”. Mr. Taylor asserted that he was using the word “arbitrary” in its common usage. As Mr. Taylor asked the question, perhaps in frustration, he stated to Mr. Kuntz, “If you are attempting to frustrate the process by playing dumb we’re wasting time.” I offered that the problem could be in the use of the word “arbitrary”, after which Mr. Taylor explained what in his view the word meant and continued to pursue that line of inquiry.

75As the cross-examination continued Mr. Taylor asked questions at a quick pace. At times I asked for a pause to take notes, as I had done throughout the proceeding, by asking the witness or questioner to slow down until I captured the evidence. I then advised that I needed a break to rest my hand. Mr. Taylor offered that the problem was that there is no record and my asking him to slow down to capture the evidence “interrupts all the flow of cross-examination.”

76After a short break, the cross-examination of Mr. Kuntz continued. The cross-examination proceeded for a time without interjection from the Complainant or comment from Commission counsel. However, after a time when I asked for clarification of a response given in cross-examination and a discussion ensued about what evidence was actually given, Mr. Taylor commented that the process of not having a transcript was unfair to everyone. He said this was because the adjudicator has to act as stenographer as well as adjudicator. He stated that the role of adjudicator is to judge amongst competing credibility of witnesses which involves evaluating the demeanour of witness their body language, facial expressions and spontaneity when answering questions. I replied that I have made observations of the demeanour of the witnesses as they have testified and asked Mr. Taylor to continue on. He continued.

77The next event occurred near the end of the hearing day. This involved a statement made by Mr. Kuntz to an investigator from the Commission. Mr. Taylor sought to put portions of the document to Mr. Kuntz as prior inconsistent statements. As Mr. Kuntz was being asked questions about how the document came to be created, he broke down crying and stated that he had chemotherapy and that he was ill at the time, but that the interview proceeded. He objected to the use of this statement because he was sick. All parties then provided cogent reasoned submissions on the issue.

78In light of the circumstances surrounding the creation of the document, I advised that I needed time to reflect on how this document could be used. I provided Mr. Taylor with an opportunity to contact the Commission and make further submissions on the point. When he returned he advised that he could not contact the Commission but made some additional submissions. At that point Mr. Henry offered that what happened today will come up in the future and he inquired whether when inconsistencies surface will Mr. Kuntz return to “crying and whining like a baby.”

79Subsequently, I asked Mr. Kuntz to specify his objection. He advised that his sole objection was that he was sick. Mr. Taylor asked questions of Mr. Kuntz surrounding the creation of the document. The Complainant made a further statement.

80With that I adjourned the matter and reserved the issue of the use of the document to the following day.

The last day of Hearing - January 22, 2003.

81The hearing continued at Gillespie Arbitrations in Ottawa. Mr. Henry arrived at approximately 10:12 a.m. Mr. Kuntz introduced a person sitting with him as Brian Sheahan and advised that he would be taking notes for Mr. Kuntz. Mr. Henry objected to Mr. Shaehan’s presence. Mr. Taylor addressed Mr. Henry’s objection after which Mr. Henry advised that he had no objection. I allowed Mr. Sheahan to stay for the purpose of taking notes.

82I asked Mr. Kuntz when he was undergoing chemotherapy and he advised me of the period. After asking Mr. Taylor whether he had anything to add, and him replying in the negative, I read the following ruling:

The Commission wishes to use some of the notes of Andreas Kuntz’s interview with Mr. Maurice Richard, which the personal respondent initialled and signed on September 4, 2001, to impeach the credibility of Andreas Kuntz. The Commission seeks to demonstrate inconsistencies in the notes and other statements made by Andreas Kuntz. This, the Commission submits, is to challenge credibility only.

Mr. Kuntz objects to the use of the notes for that purpose because he says he was undergoing chemotherapy at the time, and he advised Mr. Richard he was sick but the interview took place anyway. Mr. Kuntz submits that to use the notes would not be fair. Mr. Kuntz admits that he made a change to the notes and that there were no other changes. Mr. Kuntz states that the portion read to him is accurate. He does not say how his treatment affected the notes.

I have considered the issue and the submissions of the parties. Mr. Kuntz has failed to satisfy me that there is a sufficient reason to not allow the use of the notes for the purpose indicated by the Commission. The notes are not intended by the Commission to be introduced for the truth of their contents, only for the purpose of testing credibility. The Commission will be permitted to use the notes for its stated purpose.

83After the ruling was read Mr. Taylor wished to revisit again the issue of witness statements. Mr. Taylor advised that he had received two witness statements the previous day that contained only questions without answers. Mr. Taylor submitted that the statements as given throws no light on the issues and shows no observations by the witnesses of the interaction between Mr. Kuntz and Mr. Henry.

84Somewhat concerned that the issue of witness statements was again taking up precious hearing time, I suggested to Mr. Taylor that we would have to carry on with the hearing and that he is experienced counsel. He replied that that his obligation was to represent the Commission and in his view since the witness statements were not acceptable, the witnesses could not be called.

85Mr. Kuntz pointed out that Hazel Conley, a witness who appeared on the Commission’s list of witnesses, had provided a statement to the Commission and that everything on the statement would be asked except for one question, whether Mr. Henry gave his children Christmas presents. Mr. Taylor offered that he would object to that evidence since he asserted that the Ruling in Browne v. Dunn was not followed with respect to this evidence. In order to avoid protracted discussion on the topic, I advised that the whole issue of the applicability of Browne v. Dunn could be avoided depending on what Ms Conley’s answer to that question actually is, and suggested that the matter could be dealt with later. I expressed aloud that some people ask their witnesses what their evidence will be before they are called, after undertaking a cost benefit analysis over the value versus the harm that a witness can do to one’s case. I also advised, however, that because there is a witness exclusion order none of the evidence led at the hearing could be discussed with any of Mr. Kuntz’s potential witnesses.

86The cross-examination of Mr. Kuntz on his statement then began. The Commission asked a number of questions on specific items. The questions took the form of whether that was the answer given to the investigator then and whether that was Mr. Kuntz’s answer now. At one point Mr. Taylor asked if an answer given at the top of page three of the statement was his answer then and is it his answer now. The sentence that the Commission referred to reads “ I never for example said what is indicated in ‘c’ of the Complaint.” I asked for the purpose of clarification whether he meant “then” by referring to August. Mr. Taylor continued to ask if that is his answer now. Mr. Kuntz asked to look at the Complaint form. Mr. Taylor stated that he could not. I interjected that it was not fair to ask Mr. Kuntz whether that is his answer now, without allowing him to look at the reference in the Complaint.

87Mr. Taylor did not agree with this assessment. Then Mr. Henry stated that he was tending to believe that it was “coming to that situation”. This I interpret as Mr. Henry possibly referring to bias on my part. Mr. Henry then continued on to state that I did not let him refer to notes when he was giving his evidence and that I am now letting Mr. Kuntz. He stated that he was “feeling prejudiced.” None of the participants at the hearing, including myself, addressed that statement. When Mr. Taylor asked the next question about whether Mr. Kuntz wished to keep his answer given in August or change the answer now, Mr. Kuntz replied that he didn’t know. Mr. Taylor did not pursue the question further. Mr. Kuntz did answer a number of questions posed in the same fashion about other items in the document. In fact when he was asked about a portion of the interview found at page 5 of the document as to whether that was his answer then, I refused to allow Mr. Kuntz to refer to the Complaint to respond as to whether that was his answer then.

88The cross-examination continued, although at a brisk pace and with Mr. Taylor expressing some frustration with how to pose questions to Mr. Kuntz. At one point Mr. Taylor was asking Mr. Kuntz when a Christmas party took place. Mr. Kuntz responded and almost immediately thereafter Mr. Taylor asked him if he owned a firearm. I stated, “Sorry that came out of the blue” and that I had to write down the question after which I said to proceed. Mr. Kuntz responded to the questions Mr. Taylor asked. Mr. Taylor pursued the line of questioning and at one point inquired why he had to think about his answers. Mr. Kuntz responded.

89Shortly thereafter Mr. Taylor began questioning Mr. Kuntz about the name of a person to whom Mr. Kuntz was alleged to have made a comment. When he provided the name of the witness I asked him to spell it, so that there would be no doubt as to who that was. Sensing some unease at this question, I explained that the witness had the same last name as Forbes magazine and I had just wanted to know if was spelled in the same way. It was unfortunate that I used a comparison to Forbes magazine and in future I will be more diligent in that regard.

90Discussion then took place about why an employee file was not provided for Ms. Forbes. Mr. Kuntz advised that she wouldn’t be on the list of files if she wasn’t a witness, and I pointed out that was all that Mr. Taylor had asked for. Mr. Taylor asked for Mr. Kuntz to verify when Ms. Forbes worked at the bakery and Mr. Kuntz agreed to provide that information.

91The cross-examination continued, but after a number of questions Mr. Taylor felt that he should express his concerns about the testimony of Mr. Kuntz. He stated that he could only conduct the cross-examination on the basis of the evidence that the Commission has, Mr. Kuntz’s statements and what Mr. Kuntz has said in direct examination. He complained that if Mr. Kuntz constantly changes his story it’s impossible for him. He explained that he had earlier asked a series of questions about the truth table, which is a concept of philosophy but which has been appropriated into computer concepts, because certain things can only happen if there is internal consistency and internal logic. He complained that when a witness cannot tell the truth or changes the story in virtually every answer it is impossible.

92He then gave an example of his perceived difficulty, unfortunately adding thereafter that he didn’t know if Mr. Kuntz thinks he is being exceptionally clever or incredibly dumb. At that point I firmly stated that Mr. Taylor was not to use the word “dumb”.

93Mr. Henry added that he didn’t think it was fair to have a witness swear to tell the truth and “outright lie”.

94I then took the opportunity to state to all parties that every case presents its own special challenges and that the entire process is predicated on the good faith of the participants to tell the truth. I explained that a case based on credibility is one of the most difficult cases for an adjudicator to determine. I stated that submissions with respect to credibility could be made to me at the end of the hearing, and that everyone would have the chance to do that.

95The cross-examination continued. Approximately five questions later Mr. Taylor went into some detail on the criminal offence of uttering a threat, and although Mr. Kuntz had indicated in his handwritten Response that a statement he allegedly made was a joke, asked Mr. Kuntz if he was aware that it is a criminal offence to utter a threat, asserting that the Criminal Code section on this discusses uttering threats in any manner. I then asked Mr. Taylor if he was giving evidence on the state of criminal law. He did not pursue the specific question but continued to cross-examine Mr. Kuntz on the alleged statement. The last question that Mr. Taylor asked on the topic involved a lengthy discussion by Mr. Taylor about Mr. Taylor’s view of the history of a certain phrase, which involved the history of the treatment of horses at racetracks and in farming. Prior to Mr. Kuntz addressing the statement the Complainant was overcome by emotion and began to cry, stating, that Mr. Kuntz “did say that”. I determined that it was time to take a break.

96At 2:25 p.m. the hearing reconvened. Before continuing with the cross-examination, Mr. Kuntz wanted to show me some documentation specifying his chemotherapy dates. There was an objection on the basis of relevancy. Because Mr. Kuntz was not represented and had the dates before him, I allowed him to tell me the dates. This of course would have allowed the Complainant or the Commission to cross-examine Mr. Kuntz on those dates if they wished.

97I then advised that before the break we had stopped at a point where Mr. Taylor was giving evidence or making submissions, as I wasn’t sure. Mr. Taylor continued by stating that he was putting a proposition to Mr. Kuntz, and after summarizing his proposition, asked Mr. Kuntz for his reaction, which he gave.

98When inquiring about the origin of the statement Mr. Taylor inquired, where would people come up with it, “out of the blue”? Mr. Kuntz provided a response.

99The matter was pursued for two more questions when the Complainant made another interjection, although this time it was of a slightly different quality than earlier ones. The Complainant used a powerful expletive deletive and suggested that a psychiatrist or psychologist be obtained for Mr. Kuntz. This was one of the worst outbursts from the Complainant to date. I advised the Complainant that it was not appropriate and that I was close to adjourning for the day, in the hope that he would take heed and modify his behaviour.

100Mr. Taylor offered to speak to the Complainant and instruct him not to speak so that the matter could proceed. He offered that these are emotional issues with unrepresented parties and he and I are in the middle. He advised that he would offer to discuss the matter with Mr. Henry so that the matter could be moved along. I pointed out, however, that the difference between Mr. Taylor and myself was that he represented a party and I was the decision-maker. I also said that the problem with instructing Mr. Henry not to speak is that he is a party and he might have a valid objection that he wished to raise. When Mr. Henry stated that I had told him that he could freely express his concerns, I agreed that he was correct, and added that he could voice his concerns, but it was the manner in which it was done that was the problem. Mr. Taylor and the Complainant then left the room. Their discussion took some time.

101Upon their return, Mr. Henry addressed the Tribunal first. Mr. Henry stated that he was tending to feel that the case was beginning to be “highly prejudicial” or bias and that I had been assisting Mr. Kuntz in answering questions. He used as an example my statement that I was ready to adjourn the hearing. He stated that I was not independent or objective, however he said it did not come to the threshold of legal bias.

102Mr. Taylor then spoke. He advised that he called his client, the Commission, and advised them of Mr. Henry’s feeling and that Mr. Henry would now make a formal motion of bias. He advised that he spoke to his superiors, and based on the advice that Mr. Taylor gave them, they agreed that my conduct in the hearing room, while not meeting the threshold of reasonable apprehension of bias, has raised concerns about what he perceives to be the assistance that I am offering Mr. Kuntz. Assistance that he says goes beyond what is proper for the Tribunal to offer an unrepresented party. He stated that in particular there were suggestions for answers, that he believed that he was cut off in asking legitimate proper questions, and he believed that irrelevant material has been entered in evidence by Mr. Kuntz during the cross-examination that was not in response to any question that he asked him. Mr. Taylor stated that after the cross-examination and the re-examination I am entitled to ask any question I wish, or arising during the course of examination for clarification, but he thought that sometimes it went beyond that. Those, he said were the concerns that he voiced to his superiors. However, he advised that his instructions were that the Commission did not support the motion because my alleged conduct does not meet the test set out in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623 (S.C.C.). This, he said, is because he did not think that I have decided and he did not think that I had a closed mind. Mr. Taylor kindly mentioned that he was personally sorry that it had come to this. I asked Mr. Kuntz if he had a comment. He responded that he did not.

103Although I was uncertain, based on the submission that Mr. Henry had made, as to whether he had actually formally raised an allegation of bias, I advised that any motion for bias would have to be in writing and the hearing would be adjourned. To accommodate Mr. Henry, I allowed him to set out his concerns in the form of a letter. The Commission was also provided an opportunity to provide written submissions. Mr. Kuntz advised that he had no position on the motion and had nothing to say about it. All agreed that the motion would be heard on February 11, 2003, by telephone conference call, and the hearing was adjourned to that date.

Submissions of the Parties

104Only the Complainant and the Commission filed submissions.

The Complainant’s Written Submissions

105The Complainant forwarded a letter to the Tribunal dated January 22, 2003. For the sake of completeness the letter is reproduced in its entirety. It states:

RE: Fitzalbert Henry vs. Mrs. Beasley’s Bake Shop Inc. et al.

SUBJECT: Motion in View:

Sir: To you it must be a concern of public interest

I am the complainant in a human rights hearing that I feel is not fair. Your behaviour and attitudes in the past two days cause me to believe that you have already made up your mind. I feel that you are not acting independently or being objective to the matter at hand.

I remember your behaviour from Tuesday January 21st, 2003 saying that material in evidence can be used as assistance to the respondent, Mr. Kuntz in how he can answer the questions being put forward. I feel you are coercing (sic) him. During the cross-examination, Mr. Kuntz refused to comply and answer the questions put to him by Mr. Taylor. Thus, Mr. Taylor asked Mr. Kuntz not to play dumb by not answering important questions and you, Sir, scolded Mr. Taylor, “saying that’s not a good word to use to the respondent” It is obvious that Mr. Kuntz is acting insensitive and evasive. Sir, your jestering (sic), body language and posterior (sic) has also caused me to be concerned about the basis on which you will be fair and unbias in the final outcome of this hearing hence.

Bias: The oblique direction is this you sir, advice (sic) me on Tuesday January 21st’2003 that I may express myself without reservation and on January 22, 2003 during the cross-examination by Mr. Taylor when I expressed myself without reservation, you Sir, adamantly reproached me for this. Secondly you immediately blurted threats that you were about to adjourn for the day, however we have only sat down in continuation with this hearing for ten (10) minutes.

The facts have to come out. Mr. Kuntz is very inconsistent and elusive with his answers (Mr. Kuntz repeats the question asked more than twice before considering his answer). The fact is that he has violated the Human Rights Code. Therefore, he must answer to the act of discrimination, which he committed against me.

I sincerely hoping that you realize the seriousness of this case and that you will understand the position that I have taken.

The Commission’s Written Submissions

106For the sake of completeness the submissions of the Commission, which also took the form of a letter, are also set out in their entirety:

For the information of the Tribunal the following are the submissions of the Ontario Human Rights Commission on the motion of the complainant in his letter of January 22, 2003, to disqualify the Chair, Mr. Faughnan on the grounds of a reasonable apprehension of bias. Also enclosed are the cases referred to.

The Test

The burden of proof is on the balance of probabilities and rests with party making the allegation. It is not necessary for the party to demonstrate that the adjudicator was actually biased, a reasonable apprehension of bias will suffice. The test for disqualification of a decision maker on the grounds of bias was articulated in Committee for Justice and Liberty v. National Energy Board; [the apprehension is one]…”held by reasonable and right minded people, applying themselves to the question and obtaining therefrom the required information. In the words of the Court of Appeal, that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”’ 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394-395.

The test is grounded in a “firm concern that there be no lack of public confidence in the impartiality of adjudicative agencies…”. Per Laskin, C.J.C. supra, at 391.

In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, the Supreme Court of Canada affirmed the test in Committee for Justice and Liberty, and at 638 Cory J. wrote for the Court:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their function will be expected to comply with the standard applicable to courts. That is to say the conduct of members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision.

Bias may be of two kinds. One is direct pecuniary or proprietary interest in the subject matter of the hearings, which is not the issue here.

The other, non pecuniary bias, includes “emotional-type interests, such as kinship, friendship, partisanship…animosity towards someone interested, predetermined mind as to the issue involved…[and] must arise from a connection to the case or with the parties”. See Energy Probe v. Atomic Energy Control Board and Ontario Hydro, 1984 CanLII 5388 (FCA), [1985] 15 D.L.R. (4m) 48 at 61 (F.C.A.).

Almost all of the case law in this area of administrative law focuses on statements made by the adjudicator, or on the conduct of the adjudicator, outside the hearing, and prior to the case being heard.

Although rare, behaviour and conduct during the hearing can also provide grounds for disqualification for bias. See: Ontario v. Paul Magder Furs Ltd. [1990] O.J. No. 221 (H.C.J.) The Tribunal must at all times display an open mind on all issues that are presented to it. Interim rulings must show independence and be in accord with the principles of natural justice, in particular the audi alteram partum rule. In all its actions the Tribunal must be mindful that the parties are entitled to have the cause determined by an impartial adjudicator who is untainted by a predisposition to a particular point of view, or exhibits a closed mind which might affect the result. Underpinning this principle is the often quoted public policy that justice must not only be done but must manifestly and undoubtedly be seen to be done. See Canadian Cable Television Association v. American College Sports Collective of Canada Inc. (1991), 129 N.R. 296 at 313-317 (F.C.A.).

Other indicators of a closed mind during the hearing may be comments by the Tribunal which are arbitrary and capricious about the style and presentation of the parties or the counsel for the parties which cast aspersions on the skill, character or integrity of the parties or their counsel. Interference with the manner and course of the examination of the witnesses, or interruptions by the Tribunal to ask questions of the witness, or any interjection which upsets the flow of the examinations may attract an allegation of bias and a closed mind.

Recently the Supreme Court of Canada held that an immigration officer exercising a statutory power of discretion who lacked sympathy with the legislative objectives of the enabling statute and expressed impatience with the way the law was being enforced should be disqualified. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. In that case the officer in his reasons attributed negative characteristics to the applicant which, the Court found, were inimical to the purpose of the Act’s mandate of an exemption from deportation on humanitarian and compassionate grounds. For the Court, L’Heureux-Dube J. wrote:

Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, and understanding of others, and an openness to difference. (at paragraph 47).

In one of the few reported cases on point, the Review Tribunal of the Canadian Human Rights Tribunal had the opportunity to comment on the comments and conduct of an adjudicator during the course of the hearing. Canadian Human Rights Commission and Lagace v. Canada (Armed Forces) (No.2), 1996 CanLII 1299 (CHRT), 30 C.H.R.R. D/302, was an appeal from a decision of single member Tribunal on the grounds of bias. The appellants submitted that the transcript of the hearing disclosed bias on the part of the Chairman in the language used by him which denigrated the complainant (Lagace). Included in that issue was the example of the manner and tone used by the Chairman to direct the complainant, “in an authoritarian manner to answer a question”. A further allegation concerned the Chairman’s conduct during breaks in the proceeding, when he would converse with the witnesses and counsel for the respondent. In rejecting the appeal on the grounds of bias the review tribunal concluded, “the Chairman’s choice of language is not unusual in administrative or judicial proceedings, particularly when used to describe the evidence or the positions taken by the parties. Nor is it unusual for a trier of fact to ask a witness to answer a question. This is part of the dynamics of a hearing.” (at paragraph [14])

Evidence

Unfortunately we do not have a transcript to review. However there are certain things in the record which may explain why the complainant appears to be of the view that the Tribunal is not acting independently or being objective.

The Commission submits that since the beginning of the Tribunal’s involvement the respondent has purposely and pointedly ignored its directions. The respondent did not provide disclosure or comply with Rule 41 of the Rules of Practice as directed by the Tribunal on May 8, 2002. The respondent did not respond to repeated requests by the Commission for disclosure. On August 14, 2002, the Commission made a motion for disclosure, response and particulars. This motion was heard by the current Chair on September 20, 2002, at which time the respondent was directed to provide disclosure including witness will say statements. On October 7, 2002, the day the hearing started, this disclosure had not been made and the Commission again sought by way of motion to have the disclosure accomplished. When the hearing resumed on January 20, 2003, the respondent had not provided witness will say statements, and the Commission again had to request by motion a direction of compliance. Throughout the complainant was aware that the respondent was ignoring the directions of the Tribunal and from the complainant’s perspective, the respondent was getting away with it.

The question of bias on the part of the Tribunal was initially raised by the complainant on January 20, 2003, on the first day of the resumption of the hearing following a long adjournment. During the adjournment the complainant and the Commission rested their case. On January 20, 2003, the respondent began its case with the direct evidence of the personal respondent, Mr. Andreas Kuntz (Kuntz). As he is representing himself, the direct examination was a monologue. At several points, the complainant (who is also self-represented) spoke out, interrupting to challenge Kuntz. On one occasion the Chairperson did not make any comments. On a couple of occasions the Chair asked the complainant to refrain from these outbursts, as the respondent had not interrupted him during his evidence. On another occasion the Chair cautioned the complainant about the interruption and pointed out to him that he was allowed to speak and that he wanted to hear from him but at the proper time, which was during the cross-examination.

At this point the complainant made the comment that he felt that the Chair had already made up his mind about the case. He said he felt that the Chair was helping Kuntz with what he had to say, coaching him so that the evidence would fit into a picture that was not an accurate reflection of what happened.

On hearing this the Commission counsel asked for an brief adjournment to discuss the allegations with the complainant. Back ‘on the record’ the Commission Counsel explained that the complainant had been surprised by how the Chair had been assisting the respondent, because it was unlike how the Chair had behaved during the previous days of the hearings. The Commission counsel explained to the Chair that he had explained the difference to the complainant and was satisfied that an allegation of bias had not been raised and that the complainant would continue in the hearing and his presence did not constitute a waiver.

The direct examination monologue continued the next day with one or two interruptions. The cross-examination began just before the noon day break at 1 p.m. The Commission and the complainant both indicated a desire to cross-examine the respondent and agreed that the Commission would go first.

The Commission submits that there are several examples during the cross-examination which caused the complainant to revive his bias claim.

Example 1

One obvious plan by the Commission was to discredit the testimony of the witness by pointing out inconsistencies in his evidence, attacking the credit of documents the respondent had put into evidence, and through previous inconsistent statements. On the first presentation of an inconsistent statement, the respondent objected to the use of that statement, which he submitted would be unfair to allow because he was sick during the interview and at the time he signed the notes. The Chair heard submissions on the issue and reserved to the next day. At the beginning of the hearing the next day the respondent sought to put in further evidence on his objection, which was allowed by the Tribunal over the objection of the Commission. The decision of the Tribunal, to accept further evidence over the objection, was open for the Tribunal to make pursuant to its power to control its own proceedings. However, it is understandable that, from the complainant’s perspective as a lay person, this may have been seen as a form of assisting the respondent.

Example 2.

The complaint contains an allegation that the respondent said “be careful because if you lose a hand we will have to shoot you”. In previous statements the respondent denied saying this, or anything like it. In his later statements and in his direct evidence the respondent changed his story. In direct he said, “I know I have said that to somebody else, another worker has told me. I have said it to somebody else, its possible I said it to Mr. Henry.”

In cross-examination the Commission asked the respondent the identity of the worker who told him he had said it, and the identity of the person to whom he said it. At this point, the Commission submits, the respondent realized he was impeaching himself and sought to back track. The answer to the second part of the question was “Shirley Forbes”. At this point the Chair stopped the next question to ask the respondent how to spell the name, saying, he wanted to get it right because there is a magazine called Forbes magazine, etc. It is possible to understand from the complainant’s perspective, this interruption and pause could be seen as giving the respondent a chance to reconsider his answer and when the Commission counsel continued with this line of questioning, the respondent rephrased his answer in an attempt to avoid the impeachment.

Further in the cross on this point, the Commission counsel asked the respondent; “do you own a gun?” The foundation for the question was the reference to “shoot” referred to above. At this point the Chair interrupted before the answer could be given to say, “what, wait a minute, what was the question, it came out of the blue.” Thus again giving the respondent time to consider his answer. In several other answers that followed the respondent used the phrase “out of the blue” to deflect the question, and to ponder the answer.

Example 3

The Chair challenged the counsel’s use of the word “arbitrary’ implying that the counsel was using the word incorrectly. Another example – when the counsel was asking the respondent about a member of his staff, and why that person’s name did not appear on the employee records, the Chair interrupted to offer that in its disclosure request the Commission had only asked for the records of the people who were going to be called as witnesses. It is possible to understand why the complainant may have perceived the Chair’s interjection as a form of offering help or assistance to the respondent.

Submissions

The Commission submits the threshold for a reasonable apprehension of bias is high. Allegations of bias of the type which refer to comments or conduct of the adjudicator which are outside the hearing, or involve institutional bias, are tested on the strict “fully informed reasonable person” basis.

The Commission further submits that allegations of bias during the course of the hearing must be decided on their own facts. The Commission submits that the strict reasonable person test in cases such as this one cannot adequately assess the impartiality of the adjudicator because of the emotional factors identified by the court in the Energy Probe case cited above. The Commission submits that the comments of L’Heureux-Dube J. in. Baker are apposite. While those comments apply to officers in the immigration context, the Commission submits that sympathy for and understanding of diversity are even more appropriate in the human rights context.

Based on Baker, it is the Commission’s view that the standard for assessing an allegation of bias in the course of the hearing should be that of the reasonable complainant. The Commission submits that the Tribunal must consider very carefully the comments of the complainant in his letter of January 22, 2003. Clearly the complainant has subjectively lost faith in the impartiality of the chair. The Tribunal must address itself to the reasonableness of the complainant’s fears. The Tribunal should ask, does the complainant have a rational basis for his conclusions?

In the standard reasonable person test, there is a presumption that the judiciary and administrative law adjudicators take their responsibilities seriously and do everything in their power to be impartial. That presumption is rebuttable only by compelling evidence.

The Commission submits that on the basis of the strict reasonable person test, the conduct and comments of the Chair do not reach the high threshold necessary for disqualification.

However on the basis of the reasonable complainant test, the Commission can see a basis for the complainant to have lost faith in the impartiality of the Tribunal in this proceeding.

On the other hand, the Tribunal’s conduct and interventions can also be understood in the context of the Tribunal’s attempt to control the proceedings before it and to deal with the difficulties that arise when a case is presented by an unrepresented respondent.

On balance, the Commission submits that it is open for the Tribunal to find that the complainant’s apprehension of bias does not meet the threshold of a reasonable complainant in these circumstances. The Tribunals decision should carefully weigh the factors identified in the complainant’s letter, the legal tests set out in these submissions, and the Tribunal should then determine for itself whether the test has, or has not, been made out.

The motion - February 11, 2003

107On this day, the motion was scheduled to commence at 10:00 a.m. by conference call. At approximately 10:04 a.m. the conference call operator advised that Mr. Henry wanted her to call him back in five minutes. The Commission and Mr. Kuntz consented to the short delay. At 10:15 a.m. the conference call operator advised that Mr. Henry had asked to be called back in another five minutes. At approximately 10:22 a.m. the conference call began.

The Parties submissions on the Call

The Complainant’s Submissions

108The Complainant stated that it was his belief that I realize that Mr. Kuntz is playing “silly and dumb”, and I did not direct him to answer questions. That, he said, is part of why he was becoming uncomfortable with the situation. He stated that if this is not addressed he does not believe there will be a fair hearing.

109When I mentioned that those were submissions that he could make at the end of the day he moved to another concern. He stated that with respect to “out of the blue”, Mr. Kuntz choose to use my words, that Mr. Kuntz knows he is lying and he is “fuddy, duddying” around.

110When I inquired as to how many times Mr. Kuntz had used the expression “out of the blue,” Mr. Henry said he had used it to respond to one question.

111The next concern he raised was that at one point in Mr. Kuntz’s cross-examination, Mr. Taylor inquired why Mr. Kuntz had to wait to answer. Mr. Henry asked why Mr. Kuntz had to think about his answers.

112Mr. Henry then submitted that Mr. Kuntz had changed his story with respect to the person to whom he had made a statement. Mr. Henry submitted that I was telling Mr. Kuntz to say that. Mr. Henry then mentioned the occasion with respect to the spelling of the name of Shirley Forbes and took the same position as that set out in the Commission’s written submissions. For Mr. Henry, at that point of the hearing it was apparent that Shirley Forbes was an employee of the bakery. He also repeated the Commission’s submissions on the topic of the use of the word “arbitrary”. In reply to Mr. Kuntz’s submissions he also adopted the same position with respect to the Respondent’s disclosure and witness statements as that set out in the Commission’s written submissions.

113Mr. Henry submitted that the events at issue in the Complaint took place and Mr. Kuntz knows that they did. He then discussed his view of the social underpinnings of the matter. He submitted that it was necessary and imperative that the Tribunal decide on the facts as alleged in his Complaint and his testimony.

114I then inquired directly of Mr. Henry whether he wished for another adjudicator to hear his case. He quite candidly stated that it was not his role to direct anyone to do that. All he asked was for me to be objective and not subjective and that he honestly thought that Mr. Kuntz did something that was not acceptable by the system or society. He mentioned that there was a public interest in this. He stated that he wanted me to make it clear to Mr. Kuntz that this is not acceptable and that I am not here to be a party to what he has done.

115I then inquired again as to whether he wished to challenge my continuing to hear the case. He stated that that is for me to decide. I mentioned to him that on January 22, 2003, the concern that I had was that he swore that day and it was not the message, but how he said it. I added that if he did not swear that I would listen to everything he had to say, but that if he did I would not. He acknowledged this, but again submitted that Mr. Kuntz is very inconsistent and elusive in his answers and he repeats the questions.

116When I asked him if he believed I would not decide fairly, he replied that he did not know. He stated that he felt that I was doing my job and following the rules and everything that goes with my job but for some reason in the back of his mind because of my “posturing” and “gesturing” and “listening to me speaking”, without saying words, there are questions. He then mentioned that it was fair for me to ask questions, and for everyone to participate, to have a fair understanding of what had happened.

117When I inquired again whether he wished for someone else to hear the case he offered quite candidly again that it was not his business to say if someone else should hear the case. He added that since the hearing had already started, it would be a disadvantage to him to ask someone else to hear the case and that he has become accustomed to my ways and to my voice. However, he again stated that I was letting Mr. Kuntz “play the fool” and that Mr. Kuntz never made a submission he was required to make. He believed that I was letting Mr. Kuntz “get away” with this behaviour.

The Commission’s Submissions

118Mr. Taylor began his submissions by stating that because Mr. Henry is not represented and is not a lawyer, the manner in which I posed the question whether he wanted me replaced would be difficult for Mr. Henry to answer. He submitted that based on his discussions with Mr. Henry on January 20, 2003 he was confident that Mr. Henry was not formally alleging bias. However, on the second occasion on January 22, 2003, he was convinced that Mr. Henry was making a bias allegation and the content of Mr. Henry’s letter amounts to such an allegation.

119His second comment related to the evidence in support of an allegation of bias. He submitted that the lack of a transcript made it difficult, since the perception of how something was said and the timing is subjective. He submitted that without a transcript there is no concrete record as to how the dialogue went. He submitted that in his search of case law he did not find any cases in which bias is alleged in a hearing where there is no transcript.

120Mr. Taylor also pointed out that allowing Mr. Henry to make submissions at the end of the day with respect to matters that he raised is not sufficient. If there is bias, the proceeding is void and bias can not be cured by providing the opportunity for submissions. He is correct.

121He submitted that in his view it was not so much the discussion about the words, for example “arbitrary”, but the timing of my interjections. In his view, the timing of my interjections is problematic because it could appear to give comfort to Mr. Kuntz when he is attempting to craft his answers. For example, asking for the spelling of the name of Shirley Forbes at that point would give comfort to Mr. Kuntz. Mr. Taylor pointed out that most of the time in a hearing confirmation of the spelling of words is done during a break, when the stenographer asks for the spelling.

122Mr. Taylor then reviewed the cases the Commission filed in support of the motion. Except for the authorities that he referred to in support of his efforts to convince me that a new test for bias should be adopted, his oral legal submissions were consistent with the written submissions filed. As a result it is not necessary to repeat them in great detail here.

123By way of summary, Mr. Taylor submitted that based on certain dicta set out in Canada (Human Rights Comm.) and Lagacé v. Canada (Armed Forces) (No. 2) 1996, 1996 CanLII 1299 (CHRT), 30 C.H.R.R. D/302 (C.H.R.R.T.), Energy Probe v. Atomic Energy Control Board and Ontario Hydro, (1985) 1984 CanLII 5388 (FCA), 15 D.L.R. (4th) 48 (F.C.A.) (“Energy Probe”), Canadian Cable Television Association v. American College Sports Collective of Canada Inc. (1991), 129 N.R. 296 (F.C.A.), and Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), because this is a human rights proceeding where sensitivity is crucial, as a matter of public interest and as there is no transcript for a reviewing court to consider, the apprehension of bias should be considered from the point of view of a participant at the hearing. In this case because it is Mr. Henry who alleges bias, the apprehension of bias should be considered from the point of view of a reasonable Complainant.

124The Commission submits that my authority to run the hearing is not being challenged. Rather, the examples provided by Mr. Henry and the Commission led Mr. Henry to believe that I am not impartial. Mr. Taylor submitted that setting conditions to the hearing could also be seen as insensitivity to the parties that appear before me. Mr. Taylor gave as an example my advising Mr. Henry that he would have a full opportunity to speak out if he did not swear and that only then I would listen to him. Mr. Taylor submitted that the issues are emotional and whether or not it is a normal pattern of speech, people swear. He submitted that in the heat of the moment at a hearing he has used a word that he would not use in normal conversation.

125In conclusion, Mr. Taylor submitted that while this is not a Court and I am not a judge I am acting in a judicial role here and he believes that my job is to sit and listen and decide the issue. Any question that I ask should be to further these duties and I must not descend into the arena. Mr. Taylor submitted that he could see where Mr. Henry would think that I was descending into the “fray” and taking a side.

126At the end of his submissions, I inquired of Mr. Taylor the number of times that Mr. Kuntz used the expression “out of the blue” in a response to a question. Mr. Taylor said that this occurred on two occasions.

The Respondents’ Submissions

127Mr. Kuntz did not directly address the allegations raised in the motion but took issue with the Commission’s assertions with respect to the witness statements and the manner in which Mr. Taylor characterized his evidence in the Commission’s written submissions.

128He did however have something to say about swearing. He objected to being sworn at. He stated that he is faced with these accusations and that he does not interrupt. He submitted that he deserved to have some respect especially if both the Complainant and the Commission’s counsel were going to swear now.

Analysis

129The starting point for any discussion about an allegation of bias in administrative tribunal decision-making is Mr. Justice DeGrandpré’s dissent in Committee for Justice and Liberty v. Canada (National Energy Board) 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. At page 394 of the Supreme Court of Canada decision he writes:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."

I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias, or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.

130Over time this test has been routinely applied when allegations of bias are raised in both administrative and judicial proceedings. In R. v. S.(R.D.), (1997) 1997 CanLII 324 (SCC), 151 D.L.R. (4th) 193 at page 207, the majority of the Supreme Court of Canada recounted the history of the test and reduced it down to its fundamental constituent parts:

The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716. Though he wrote dissenting reasons, de Grandpré J.' s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, 23 C.C.C. (3d) 193, 24 D.L.R. (4th) 161; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, 64 C.C.C. (3d) 513; Ruffo v. Conseil de la Magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267, 130 D.L.R. (4th) 1. De Grandpré J. stated, at pp. 394-95:

the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

The grounds for this apprehension must, however, be substantial and I . . . [refuse] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

131The Commission asserted that a different test be applied, that of the perception of a reasonable Complainant, based on, amongst other things, the lack of a transcript in this case. I acknowledge as a given that an impartial adjudicator is a fundamental component of natural justice and that a partial adjudicator will have a deleterious impact on the administration of justice. I do not agree however, that the test is other than that set out above, and for good reason. Taken to its logical conclusion, suggesting that the perception of the reasonable Complainant is the applicable test means that the test could vary depending on whether a transcript of the proceedings exists or be that of the reasonable Respondent or reasonable Commission counsel depending on which party in the proceeding alleges bias.

132The difficulty in applying a test that derogates from the one created by the Supreme Court of Canada and consistently applied in decisions on bias is alluded to in A. v. Colloredo-Mansfield (No.2) (1993), 1993 CanLII 16510 (ON HRT), 23 C.H.R.R. D/325 (Ont. Bd. Inq.). At paragraphs 10 and 11 of that decision, after quoting the comments of the Divisional Court in Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Comm. (No.3) (1993), 1993 CanLII 16525 (ON CTGDDC), 18 C.H.R.R. D/97, it states:

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.

By 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.

133The Complainant’s submissions focussed on an allegation of reasonable apprehension of bias arising from my conduct in the hearing room. In particular, both the Complainant and the Commission were concerned about my interjections during the cross-examination of Mr. Kuntz. In many cases that address the conduct of a decision-maker, the following excerpt from Evans J.A., in Majcenic v. Natale, 1967 CanLII 267 (ON CA), [1968] 1 O.R. 189 (Ont. C.A.) is often quoted:

When a Judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

134It is of interest to note that in his oral submissions at the hearing on January 22, 2003, Mr. Taylor did not give specific examples of my conduct that concerned him, and only spoke in generalities. I believed, however, that when he was referring to proper questions that I did not allow him to ask he was referring to the occasion when I advised that it was unfair to ask Mr. Kuntz to respond to a question without looking at the reference in the Complaint. This allegation was not repeated in the Commission’s written submissions, but because this issue was also raised by the Complainant, I have considered this allegation in determining this matter. With respect to the allegation of allowing Mr. Kuntz to provide irrelevant information that was not in response to a question, I assumed that Mr. Taylor was referring to the occasion when Mr. Kuntz offered to provide the dates of his chemotherapy, which I allowed him to do. This is confirmed somewhat in the Commission’s written submissions, which now properly indicate that that was open for me to do pursuant to the Tribunal’s power to control its own proceedings. Although the Commission appears to no longer take issue with my ruling, Mr. Henry has raised concerns about it and I have considered this allegation in determining this matter. With respect to the allegation of suggestions for answers, at the time that Mr. Taylor made this very serious allegation I was shocked and at a complete loss as to what he was referring to. Upon receipt of the written submissions, I believe that Mr. Taylor was referring to the occasion when he asked if Mr. Kuntz owned a firearm and I asked for a moment and said that “came out of the blue”. Although the Commission’s written submissions now do not allege that I suggested answers to Mr. Kuntz, this is alleged by Mr. Henry and I have considered this serious allegation in determining this matter.

135That being said, because it is a matter of degree, careful consideration must be given to all the constituent elements before one determines whether there is a reasonable apprehension of bias. In Ontario v. Paul Magder Furs Ltd. [1990] O.J. No. 221 (H.C.J.), Farley J. succinctly states the difficulty that a decision-maker faces when their impartiality is challenged. In that case Farley J. made a comment on the merits of the case, and bias was alleged. In that decision he writes:

I must, as I said earlier, tread very warily in this matter, for of necessity I sit in judgment concerning a complaint about myself. It would, of course, be open to me to disqualify myself automatically, but to do that would be to shirk my responsibility. If this were the practice then it would be painfully obvious that judges could be easily disqualified if they made any preliminary comments or remarks. Therefore, I must look at the circumstances, the nature of the complaint and what was said as to the question of pre-judgment bias.

136In most cases where bias is raised, the conduct of the judicial or quasi-judicial officer gave rise to an allegation of a closed mind through expressions on the matters at issue which explicitly or implicitly favoured one side or the other, or a usurpation of the role of counsel by essentially taking over the examination or cross-examination. This is not the case here. The concerns here focus on a very limited number of interventions over the course of a hotly contested emotional hearing with unrepresented parties, punctuated throughout by extemporaneous and intemperate statements made by the Complainant, often about the character or motivation of the Respondent. Whether considered separately or as a whole, this does not meet the threshold for disqualification necessary to support a reasonable apprehension of bias, whether on the applicable reasonable person test or that of a reasonable Complainant. As a result, the Complainant’s motion is dismissed.

137While that addresses the Complainant’s motion, I wish all participants to know that swearing in the hearing room will not be tolerated. The Complainant has expressed himself on a number of occasions without swearing and I have no reason to believe that he will not be able to do so in the future. It is trite to say that in no way will swearing by Commission counsel be tolerated. Furthermore, I ask all the parties to consider proper decorum and procedure at the continued hearing of this matter, and unless for the purposes of a valid objection, or for the purposes of clarification, any interruption during testimony must be minimized.