B E T W E E N:

Michael McKinnon

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by

the Ministry of Correctional Services, Frank Geswaldo,

George Simpson, Phil James and James Hume

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

Adjudicator: H. Albert Hubbard

Date: July 13, 2010

Citation: 2010 HRTO 1521

Indexed as: McKinnon v. Ontario (Correctional Services)

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Ministry of Correctional Services, )

Frank Geswaldo, George Simpson, ) Leslie McIntosh, Counsel

Phil James and James Hume, Respondents )

Ontario Public Service Employees ) Joshua Phillips, Counsel

Union, Intervenor )

Introduction

1On June 2, 2010, a “Form 5 - Request for an Order during Proceedings” was delivered by the Complainant to the Ministry of Correctional Services (the “Ministry”), the Ontario Human Rights Commission (the “Commission”), the Ontario Public Service Employees Union (“OPSEU”) and to the Registrar-Transition of the Human Rights Tribunal of Ontario. The nature of that request is set out as follows in Schedule A of that document: “The Applicant requests that the Tribunal state a case for contempt to the Divisional Court pursuant to section 13 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.” (the “SPPA”) The relevant parts of that provision are as follows:

13(1) Where any person without lawful excuse,

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.

2Paragraph 1 of Schedule B of the Complainant’s Form 5 request, under the heading “The Facts and Reasons for the Request”, is as follows:

At issue in this case is whether there is a prima facie case that the Respondent Ministry of Correctional Services and/or their Deputy Minister, Jay Hope, are in contempt by their failure to disclose relevant documents in these proceedings. Specifically, at issue is whether the Respondent and DM Hope’s deliberate and repeated violations of the Tribunal’s orders (including the pre-hearing disclosure order, the repeated disclosure orders made during the hearings, and the Tribunal orders requiring the Deputy Minister to disclose information to the parties) and the general ongoing disclosure obligation under Tribunal rules, by way of failing to disclose and, at times, intentionally hiding relevant documents, ought to be addressed by way of a contempt order.

3Paragraph 69 of Schedule B of that request purports to set out the test to be applied in determining whether to make a finding of contempt. It makes reference to a decision of the Court of Appeal of Ontario overturning a finding of contempt made by a trial judge. Although that case does not appear to say anything about the test to be applied by a tribunal in order to find a prima facie case of contempt, it is referred to as follows under the heading “Does the evidence disclose a prima facie case of contempt: 3 part test”:

The breach of an order of a court or tribunal can form the basis of a finding of contempt. The Ontario Court of Appeal in Prescott-Russell Services for Children and Adults v. N.G. et al, (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686, outlined the criteria for a finding of contempt for the breaching of an order:

(i) the order that was breached must state clearly and unequivocally what should or should not be done;

(ii) the party who disobeys the order must do so deliberately and wilfully;

(iii) the evidence must show contempt beyond a reasonable doubt.

4It was anticipated that submissions regarding that “contempt motion” would be heard on the 23rd and 24th of June. However, when the hearing of evidence resumed on June 15, counsel for the Ministry requested me to recuse myself “from hearing the contempt motion” because, in her view, the reasons for my Interim Decision of June 2 ordering the production of certain documents (McKinnon v. Ontario (Correctional Services), 2010 HRTO 1235, paragraph 40) give rise to “a reasonable apprehension that [I] have prejudged the very issue raised by the contempt motion”. Following the submissions of the parties regarding the Ministry’s request, the hearing was adjourned sine die because no dates beyond the 23rd and 24th of June had yet been agreed upon and the contempt motion cannot be heard until a decision with respect to the recusal motion is made.

5Before turning to the submissions of the parties regarding the Ministry’s recusal motion, a brief synopsis of the long history of this litigation is needed to provide the context in which that motion is to be considered.

Relevant Background

[6] Michael McKinnon’s first complaint of discrimination, harassment and reprisal because of his native Canadian ancestry (leveled at the Ministry and other respondents) was filed with the Ontario Human Rights Commission in 1988, and it was followed by further complaints in 1990 and 1992. Those complaints, which arose at the Toronto East Detention Centre (“TEDC”), were referred for hearing before a board of inquiry. I was appointed that board of inquiry (“the Board”) in 1995, and the matters came before me on February 7, 1996. Following a 45-day hearing, the Ministry was found liable and a number of orders were made: McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), [1998 CanLII 29849 (ON HRT)](https://www.minicounsel.ca/hrto/1998/29849), 32 C.H.R.R. D/1.

[7] Having retained jurisdiction pending full compliance with its orders, the Board was called upon in 1999 to reconvene the hearing to consider allegations of non-compliance and further incidents of harassment and reprisal. The Board’s decision that it had jurisdiction to deal with these matters was upheld by the Divisional Court: Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (2001), [2001 CanLII 28415 (ON SC)](https://www.minicounsel.ca/scj/2001/28415), 39 C.H.R.R. D/308.

[8] Following another lengthy hearing that finally began in June of 2001, the Board determined that the Ministry had failed to stop the harassment of Mr. McKinnon and had not complied with all of its orders. Several more orders were issued, some relating to the TEDC, others being system-wide: McKinnon v. Ontario (Ministry of Correctional Services) (No. 7) (2002), [2002 CanLII 46519 (ON HRT)](https://www.minicounsel.ca/hrto/2002/46519), 45 C.H.R.R. D/61. That decision was upheld by the Divisional Court, and a further appeal to the Court of Appeal was dismissed.

[9] The Tribunal was called upon yet again in 2005 to reconvene the hearing to deal with new allegations of failures to comply. Another lengthy hearing ensued, the outcome of which was the imposition upon the Ministry of many additional orders: McKinnon v. Ontario (Correctional Services), 59 C.H.R.R. 89, [2007 HRTO 4](https://www.minicounsel.ca/hrto/2007/4).

[10] Most of the orders made by the Board in its 2002 and 2007 decisions have to do with making it safe for the Complainant and his wife to return to work at the TEDC, from which workplace they have been absent since the decision of Justice Carnwath on January 23, 2003, lifting the stay of the Board’s order for paid leaves of absence pending compliance with its orders—a stay that was occasioned by the Ministry’s application for judicial review of the Board’s 2002 decision.

11On April 20, 2009, the Board held a pre-hearing conference to consider the complainant’s request of December 10, 2008, seeking to have the hearing in this matter reconvened to deal with a number of alleged failures on the part of the Ministry to comply with the orders made in its decisions of 2002 and 2007. The Board concluded that the hearing must be reconvened to hear evidence and submissions regarding those allegations and to make such further orders and rulings as might be necessary. There have been 42 days of evidence and submissions since the Board reconvened the hearing on June 3, 2009, to deal with the matters thus raised, and the parties have indicated that more hearing days will be required.

12The Complainant’s great anxiety that the matters be resolved so that he can return to work some time in the foreseeable future has been made clear time and again since the Board’s decision in 1998. For instance, the following exchange between him and his counsel is recorded in paragraph 447 of the Tribunal’s 2007 decision:

... The Complainant testified on the third day of the proceedings (more than a year before final argument), and he made several references to the impact the Ministry’s wrongs had had on him and his family. His examination-in-chief ended with this exchange (Vol. 3, pp. 639-640):

Q. Now, you referred to health and safety concerns for your family. Could you elaborate on these health and safety concerns you have?

A. My health has deteriorated. I'm on medication and I've sought professional assistance to deal with what I've had to endure. And I'm on more medication now than I was in the past. I suffer bouts of depression and again, that has an impact on my family and I will give you an example. My daughter asked me where I was going downtown. I said, “Meetings.” She goes, “How long has this been going on, Dad?” I said, “17 years.” She goes, “Boy, that's a long time.”

Q. Do you want to take a little bit more time, Mr. McKinnon, or...?

A. No.

Q. So you think that's had a - - your depression has had a negative impact on your family - -

A. (Nodding head.)

Q. - - as well as your career?

A. Yeah.

13The parties and the Tribunal are aware that Mr. McKinnon’s anxiety has been exacerbated by the cancellation of several agreed-upon hearing dates during the current round of these proceedings, and for that reason I have done my utmost to adhere to scheduled dates, none of which were lost on my account. The significance of that observation will become apparent.

General Elements of Recusal Law referred to by the Parties

14Ms. McIntosh began her submissions on behalf of the Ministry with a reference to the test to be applied to determine whether there is a reasonable apprehension of bias on the part of a judge. That test was laid down in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, in which Laskin C.J. said (at page 18) that:

[T]he 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 [Federal] Court of Appeal, the test is “what would an informed person, viewing the matter realistically and practically—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.”

15Counsel for the Complainant also referred to that test, and she drew attention to other relevant considerations as well, particularly as set out in the decision of the Ontario Court of Appeal in Ontario Provincial Police v. MacDonald, 2009 ONCA 805. Ms. Hughes quoted the following passages from that decision:

It has long been established that the removal of an adjudicator is appropriate where a reasonable apprehension of bias has been demonstrated. The applicable legal test was set out in Committee for Justice and Liberty v. National Energy Board [citation omitted]

The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, “[t]he grounds for this apprehension must...be substantial...and the test [will not] be related to the very sensitive... conscience": R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at paras. 31 and 37.

The reasonable person also knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; Marchand (Litigation Guardian of) v. Public General Hospital of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.)

There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.) at paras. 37-39; Chainauskas Estate v. Reed (2009), 2251 O.A.C.209 (C.A.) at para. 12.

16In support of the Ministry’s submissions, Ms. McIntosh made frequent reference to the decision of Teitelbaum D.J. in Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities, Gomery Commission), [2008] F.C.J. 973, drawing attention to various cases cited therein, beginning with Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, which is dealt with in paragraph 43 of Gomery as follows:

In Baker, the Supreme Court of Canada identified five non-exhaustive factors that are to be considered when determining the content of the duty of fairness. They are: (i) the nature of the decision and the decision- making process; (ii) the statutory scheme; (iii) the importance of the decision to the individuals affected; (iv) the legitimate expectations of the parties; and (v) the choices of procedure made by the decision-making body.

17Of the five factors expressly mentioned, Ms. McIntosh singled out the importance of the decision to the individuals affected as being particularly significant when the recusal motion relates to a contempt proceeding or (in her view) a motion to refer a matter of contempt to the Divisional Court. She drew attention to the observation (in paragraph 53 of Gomery) that “the more important the decision is to the lives of those affected and the greater its impact, the greater the procedural protections to be provided”. Before going on to read the following statement made by Teitelbaum D.J. in that case, Ms. McIntosh cautioned me that the negative consequences of being held in contempt go beyond harm to reputation:

This is not to say, however, that the content of fairness is necessarily more stringent where there is a risk that one’s reputation may be negatively affected. As I stated in Addy [citation omitted] “the possible and purported damage to the applicants’ reputations must not trump all other factors and interests”.

18The test for determining whether an apprehension of bias is reasonable depends in part on the nature of the tribunal whose impartiality is questioned. In that regard, Ms. McIntosh referred to paragraph 67 of Gomery in which it was said that because the “standard of impartiality expected of a decision maker is variable depending on the role and function of the decision maker involved ... the Supreme Court established a spectrum for assessing allegations of bias against members of commissions or administrative boards”. That paragraph concludes with the following quotation from the judgment of Cory J. in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at pages 638-639:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

19It was Ms. McIntosh’s submission that the “reasonable apprehension” standard applicable to a tribunal that can grant remedies and make orders is not the “closed mind/open mind” standard applicable to administrative boards that deal merely with matters of policy. In that regard she returned to Gomery, placing particular emphasis on the last sentence of paragraph 68 of that decision:

Justice Cory stressed in that case “that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered” (Newfoundland Telephone, at page 639). Applying this flexible approach, he then concluded that the applicable standard for assessing the Board’s impartiality during the investigative stage was the closed-mind standard. He also found that when the matter reached the hearing stage, the Board’s role had changed and, as a result, the standard used to assess the Board’s conduct at that stage was the reasonable apprehension of bias standard. [Emphasis added.]

20Since, according to the Ministry, the pertinent test is that which applies to judges, Ms. McIntosh referred to a document prepared by the Canadian Judicial Council in 2001, entitled Some Guidelines On The Use Of Contempt Powers. She read the following paragraphs from that document, beginning at page 30, under the heading “The Involvement of the Judge”:

There can be no rule that a judge should not preside or continue to preside at a trial or hearing when a contempt has been alleged just because he or she has been attacked or criticized, for if there were such a rule a judge could easily be driven out of a case. Similarly, a judge should not disqualify himself or herself just because he or she has been attacked, his or her order has been disobeyed or contumacious conduct has taken place in his or her courtroom, particularly if disqualification will delay proceedings to the prejudice of any party. In some cases it is highly desirable that some questions of contempt be resolved “on the spot” and judges should be firm in this connection. It may be, for example, that any judge would come to the same conclusion.

But, if it is possible to sever an alleged contempt from a proceeding at bar, a judge should consider stepping aside if he or she is personally involved or if he or she has expressed any opinion which might reasonably be regarded as a prejudgment, or if the circumstances raise any bona fide question of bias, interest or partiality on the part of the judge beyond a mere allegation.

[21] Of course, since I am not a judge, I cannot resolve a question of contempt at all, let alone “on the spot”. The most I can do is state a case for the Divisional Court, if so persuaded after hearing the submissions of the parties—a kind of “gate keeping” exercise that, according to counsel for OPSEU, affects the standard of procedural fairness. Here is part of what Mr. Phillips had to say in that regard:

Let me now go to the issue I want to spend a little bit more time on and that is the significance of the fact that you are not making the contempt decision here. There's been a fair bit of law on tribunals who, rather than making the decision, themselves, act in sort of a screening capacity. They are the gatekeepers, if you will, who determine whether another adjudicative body should consider a matter, and it has been -- in a number of different contexts in which I'm going to take you in the cases -- it has been determined that the standard of procedural fairness which applies to that kind of decision making is a lower one than would exist at the higher level where the issue is being decided: in this case, the issue of whether or not the Ministry engaged in contemptuous conduct. ...

22Mr. Phillips went on to draw an analogy between an adjudicator’s screening role in respect of other matters and the tribunal’s role in a contempt motion. In that regard, he referred to the decision of the Court of Appeal of New Brunswick in Mount Allison University v. Thorpe, N.B.J. No. 180, in which the impugned statement made by the decision maker prior to adjudicating on the complaint was that it was “not without merit”. Paragraph 4 of that decision is as follows:

Section 18(2) of the Act empowers the Commission to dismiss a complaint at any stage of the proceedings if, in its opinion, the complaint is without merit. The Commission's statement to the University that the complaint in question was “not without merit” merely expressed the opinion that the complaint was not one that it was prepared to dismiss pursuant to s. 18(2) of the Act. No reasonable apprehension of bias arose as a result of that statement and it does not express a conclusion by the Commission that the complaint is well founded.

23While the decision maker’s comment in the Mount Allison case might be seen as somewhat relevant to an issue yet to be decided, it did not purport to deal with the merits of that issue. Deciding whether to hear a matter cannot give rise to a reasonable suspicion of bias regarding the subsequent hearing on the merits. (Indeed, were it otherwise, a refusal to recuse oneself would in itself give rise to such apprehension.) Mr. Phillips referred as well to Allen v. Manitoba (Judicial Council), 1990 CanLII 7952 (MB QB), [1990] 5 W.W.R. 236 in which it was held that no reasonable apprehension of bias or prejudgment arose from the fact that the decision maker had previously determined that a number of complaints made against the applicant were not frivolous or vexatious. It was pointed out by Huband J.A. in that case (at page 4) that the apprehended bias arose:

... because the Judicial Council of necessity reviewed the evidence in order to determine that the complaints were not frivolous or vexatious. Having done so it is suggested that the same individuals are precluded from considering the same factual scenario a second time to make the determination whether the complaints are valid, and if so what disposition is appropriate.

24What that appears to suggest is that, since to rule on a preliminary issue is not to rule on the merits of the matter to be dealt with later, no reasonable apprehension of bias arises from that circumstance. Because the reference in Allen is to the need to consider “the same factual scenario a second time”, the thrust of Mr. Phillips’ submission appears to be this: (a) in dealing with the contempt motion the facts on which I based my finding that the settlement documents were not disclosed in a timely way will need to be considered again; (b) but, since the first consideration of those facts was for a different purpose (akin to deciding a preliminary matter), no reasonable apprehension of bias can be taken to have arisen from that circumstance. Here is what Mr. Phillips had to say in that regard:

Similarly, in the next case I have, Allen v. Manitoba (Judicial Council), it is a Manitoba Court of Appeal decision, and in this case, it was held that there was no reasonable apprehension of bias or prejudgment based on the fact that the same body which had previously determined a number of complaints against the applicant were not frivolous or vexatious, and the court then concluding, the issue of deciding whether a complaint was frivolous or vexatious is entirely different from consideration of the merits of the complaint in full hearing. And the decision concludes, it would be unreasonable to find that the bodies ruling on a preliminary issue meant that it would be unfair in its final determination." And I ask you to turn to page 4 of that decision.

And so what these last two cases stand for is that you may well be required to look at the same factual underpinning to make a decision regarding production as you did, and you may have to reconsider those facts, perhaps with a fuller record, to address other issues -- in this case, contempt -- but simply having made a decision on the prior issue, which you consider an overlapping factual background, does not preclude you from making an unbiased decision on the later and different question.

25There are two aspects to those submissions. The first has to do with the making of a finding in relation to a particular factual scenario for one purpose and then having to review the same facts later for a different purpose—a point to which I will return in another connection. The second has to do with what Mr. Phillips referred to as a “gate keeping” function, in as much as the tribunal is not being called upon to decide that there was contempt but merely whether or not to state a case of contempt to the Court. However, to suggest that a tribunal’s decision on a contempt motion is of such limited impact does not seem to ring true.

26In reply, Ms. McIntosh submitted that the “gate keeping” function involved in the cases referred to by Mr. Phillips is not truly analogous to the function of a tribunal when called upon to state a case of contempt to the Divisional Court. She said: “You are going to be making a finding that there is a prima facie case of contempt. You're going to be exposing the Ministry to the force of judicial determination with respect to contempt.”

27Of course, if a decision maker were to decide that a complaint is without merit or that a claim is frivolous and vexatious that would end his or her involvement in the matter, just as a tribunal’s decision to not state a case of contempt would end its involvement in that matter. On the other hand, if that decision maker finds that the complaint is not without merit or that a claim is not frivolous and vexatious, the person in question is thereby exposed to the risk of decisions of potentially serious consequence—and at the hands of that same decision maker, rather than at the hands of others, as when a case of contempt may be stated to the Divisional Court pursuant to the SPPA.

28That having been said, it strikes me that there is indeed a difference of substance between this case and those cited by Mr. Phillips, and that is the potentially quasi-criminal consequence of stating a case for contempt—the consideration of which involves proof beyond a reasonable doubt (at least at the level of the court). That being so, although the analogy drawn by Mr. Phillips appears logically correct, I think a higher standard is nevertheless called for than might otherwise apply to determine the reasonableness of an apprehension of bias on the part of an administrative tribunal. As was aptly pointed out, I am not conducting a public inquiry; I am adjudicating contentious matters and am in a position to affect the interests of the Ministry and its employees. Thus, and having particular regard to the degree of importance of the impending decision to the individuals affected (as per Baker), I agree with Ms. McIntosh that the standard applicable to judges in dealing with recusal motions applies to me in the present circumstances.

29Ms. McIntosh emphasized that the request was not that I recuse myself from the entire proceeding, but simply from hearing the contempt motion. In her submission, if it is possible to sever the alleged contempt, the best practice is for the judge (or adjudicator) to step aside if he or she has expressed any opinion that might reasonably be regarded as a prejudgment or if the circumstances raise any bona fide question of bias, interest or partiality, beyond a mere allegation. However, whereas the Ministry submits that it is feasible to do so in the circumstances of this case, whether “it is possible to sever the alleged contempt” from the rest of this proceeding seems highly problematic because the matters raised in the contempt motion are clearly germane to the issue of bad faith that must be determined at the conclusion of the present round of hearings. Moreover, since I preside over these matters as an ad hoc board of inquiry and not as part of the standing Human Rights Tribunal of Ontario or its precursor standing Human Rights Board of Inquiry, it is not at all clear that “some other adjudicator” can be assigned the task of hearing in my place the Complainant’s motion that a case of contempt be stated to the Divisional Court, and my recusal might make it necessary for him either to abandon his contempt motion or bring it directly to court at considerable expense and delay.

Principal Basis for the Ministry’s Apprehension of Bias

30The main source of the Ministry’s claim of reasonable apprehension of bias is this partial sentence found in paragraph 40 of my Interim Decision of June 2, 2010, ordering the production of certain documents: “The failure to have brought their existence to the attention of the other parties is one of a number of failures by the Ministry to disclose relevant matters in a timely way…”. In Ms. McIntosh’s view I have thus prejudged “the very issue” to be considered in the contempt motion, and that is something counsel for the Complainant readily acknowledged a Tribunal ought not to do. In that regard, Ms Hughes referred to the following statement made in Administrative Law in Canada (Blake, Butterworths, Fourth Edition, at p. 110):

Tribunal members should not prejudge a case. They should not make up their minds so strongly in advance that they cannot be influenced at the hearing to decide another way. They should not hold predetermined views, regardless of the merits of the case.

31Of course, Ms. Hughes went on at great length to expound upon her contention that counsel for the Ministry has misconstrued the issue raised in the contempt motion. In Ms. Hughes’ view, that issue is not whether relevant documents and information were delivered late, but whether they were wilfully and intentionally hidden and withheld.

32Because it ought to be examined in full context, it is necessary to set out the entire paragraph that contains the partial sentence Ms. McIntosh characterizes as a prejudgment of the contempt issue. That paragraph, as it appears in the June 11 Interim Decision (McKinnon v. Ontario (Correctional Services), 2010 HRTO 1235) as amended June 11, 2010 (the underlined sentence having been added), reads as follows:

Even should I have misconstrued the meaning of “necessary” as it is used in Dos Santos, it happens that I am of the view that in the circumstances of the present case disclosure of these minutes of settlement is necessary. The failure to have brought their existence to the attention of the other parties is one of a number of failures by the Ministry to disclose relevant matters in a timely way, and the questions that Ms. McIntosh suggests be put to witnesses in lieu of their disclosure might better have been put to Ministry witnesses who gave their evidence long before the existence of the settlement agreements became known to the Complainant. Moreover, without the minutes of settlements as background information there is no clear basis for formulating probing questions or for testing responses that might be simply self-serving. The production of these agreements is necessary in this case because they may constitute critical evidence in deciding an issue of fact; indeed, in the end, these potentially balance-tipping documents might prove to be “the sole” means of resolving that issue. There is just too much at stake to leave it to hazard.

33After identifying the contentious assertion in that paragraph, Ms. McIntosh went on as follows (starting at page 8922 of the transcript):

So this sentence [sic], in our submission, is objectionable for a number of reasons. One is, it is, as I said, the very issue that comes up in the contempt proceeding, and I'll take you to that in a moment. So it's not a case where we're complaining about -- where there's a statement about one thing and then the contempt motion is about something else. This is the very issue that is raised in the contempt motion. Secondly, it is not a tentative view about the failure of the Ministry, but the reasons say it is -- and I underline “is” -- one of a number of failures by the Ministry to disclose relevant matters in a timely way. ...

Now, just to track the language of the contempt motion ... in the Schedule A [sic] to the Form 5, in paragraph 1, the motion is characterized. What is at issue in the motion is characterized is – and I'm looking beginning at the end of the second line in the first paragraph, what is in issue is that the Ministry is in contempt by their failure to disclose relevant documents in these proceedings, and then there's some other background information, and then on page 5, paragraph 21, the contempt motion alleges that the majority of the exhibits were not disclosed by the Ministry in a timely way.

34At one point, Ms. McIntosh quoted certain passages from the decision of Lord Denning in Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.), as set out in paragraph 75 of Gomery:

... in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: “The judge was biased.” [Cited cases omitted.]

35After taking me to those passages, Ms. McIntosh said the following:

And let me just pause to say here that this is not surmise or conjecture. There are words in paragraph 40 that I say speak to the very issue that is an issue in this contempt proceeding, and in my respectful submission, reasonable people reading that would think that it had already been decided that the Ministry had failed to disclose relevant documents in a timely way. That's what it says, and I think a reasonable person reading that would conclude that that was your view on June the 2nd before hearing the contempt motion.

36In concluding her submissions, Ms. McIntosh had the following to say regarding paragraph 40 of the Interim Decision:

In our respectful submission, paragraph 40 raises more than a mere allegation [of prejudgment]. It is an actual statement that there has been, there is, a failure by the Ministry to disclose relevant documents in a timely way. That is something that has to be disposed of, that is directly raised in the contempt proceedings, and it is for that reason that we respectfully ask you to refer the contempt motion to another adjudicator. We're not asking you to step down from the whole proceeding and start over again. That's not the argument. The argument is, having said what was said in paragraph 40, that the contempt motion should be dealt with by someone else.

37A final matter to be considered in this segment of these reasons is that Ms. McIntosh repeatedly asserted that whether “the Ministry failed to disclose relevant information in a timely way” is “the” issue to be decided on the contempt motion. Indeed, when focusing (in reply) on the repetition of that phrase in Schedule B, she said she “looked in my friend’s contempt materials just quickly while their arguments were going on, and found at least eight references to those words, ‘failure to disclose relevant documents’, ‘timely way’’. That is the essence of a prima facie case”.

38Ms. McIntosh seems to suggest thereby that if, upon hearing the Complainant’s contempt motion, the adjudicator were to find beyond a reasonable doubt that relevant information was not disclosed when it first came to the Ministry’s notice, then, since that is the essence of a prima facie case, that adjudicator is bound to find that a case of contempt had been made out—even, let us suppose, despite clear evidence of surrounding circumstances absolving the Ministry of blame.

39Although at no point did she say so, I think it likely that Ms. McIntosh’s position is that there are a number of issues that must be addressed on the contempt motion, of which a failure to disclose information in a timely way is but one, “blameworthiness” in that regard being another, and that to prejudge any issue is to exhibit bias. And it is in that sense that I address her concerns.

40However, for reasons fully considered hereafter, I am of the view that whether there was a “failure to disclose relevant information in a timely way” is not “the” issue to be decided on the contempt motion, nor is it one of a number of issues to be decided on that motion. Neither is it some sort of preliminary issue, as seems to have been suggested earlier. In short, I do not see it as an issue at all. Rather, in the context of this particular contempt motion, that phraseology is simply a choice of language (innocuous, at that) that might be used to describe a finding (if one were made) that the Ministry deliberately hid documents and information in defiance of disclosure orders.

41Ms. McIntosh raised other matters that she suggested lend support to her view that there is a reasonable apprehension of bias. However, before turning to those matters, I will deal with her submissions, and those of the other parties, regarding the assertion made by me in paragraph 40 of the Interim Decision of June 2 that constitutes the major focus of the Ministry’s contention.

Submissions Regarding Paragraph 40 of the June 2 Decision

42To begin with, it is to be noted that Schedule B of the complainant’s request consists of 114 paragraphs contained in 30 single-spaced pages. In my opinion, the first sentence of the very first paragraph of that document cannot be taken to define the nature of the alleged contempt or to encapsulate the issue to be dealt with. Although Ms. McIntosh made much of the fact that the phrase “failure to disclose relevant documents in a timely way” is repeated at various places in Schedule B, repetition of a phrase does not alter its essential meaning. That phrase applies to conduct ranging from the clearly blameless to the allegedly quasi-criminal, and its use in the Form 5 request does not clothe it with an indelibly negative meaning associated exclusively with that which is “contemptuous”. Moreover, there is clearly nothing to warrant an inference that such is the meaning invariably intended or implied by the use of those words by others (such as myself) in an entirely different context. And, of course, the context in which I wrote the Interim Decision cannot be coloured after the fact by the contempt motion that had not yet been provided to the Tribunal.

[43] It seems obvious to me that the opening statement in the Form 5 request that “the issue is whether there is a prima facie case that the Ministry and/or their Deputy Minister are in contempt by their failure to disclose relevant documents in these proceedings” must be read in the context of the entire Schedule and in conjunction with the sentence that follows immediately after, to wit: “Specifically, at issue is whether the Respondent and DM Hope’s deliberate and repeated violations of the Tribunal’s orders ... ought to be addressed by way of a contempt order.”

44The first sentence of the Schedule does not suggest that a person should be held in contempt simply because of a failure to disclose relevant documents, as though all such failures are ipso facto matters of contempt regardless of circumstance—which, surely, a reasonable person knows is not the case. Rather, the phrase “by their failure to disclose” would (I think) lead that reasonable person to ask: ”What is it about that particular failure that the complainant finds contemptuous?” And, of course, the answer to that question is found in the very next sentence, and it is made abundantly clear throughout the document. For instance, at page 16, in paragraph 59 of the Schedule, it is said that:

In sum, the above evidence reveals not only a pattern of deliberate non-disclosure and flagrant flouting of the Tribunal's disclosure orders, but a concerted effort on the part of the Respondents to hide evidence directly relevant to issues at the heart of this matter. As set out in more detail above, the Respondents failed to disclose and/or hid: [the matters listed thereafter].

45Of some significance, of course, is the question of the reasonableness of the impugned statement made in paragraph 40. In that regard, Ms. Hughes referred to the following paragraphs of the Court of Appeal decision in the Ontario Provincial Police case (supra):

It seems clear to me that the Divisional Court reasoned in the following manner:

the rulings of the adjudicator were reasonable;
the comments of the adjudicator were understandable, given the difficulty, length and politically charged nature of the proceedings;
given the above, the reasonable, informed, right-minded person would not think that the adjudicator was biased;
therefore, the adjudicator was correct in not recusing himself.

This chain of reasoning is perfectly acceptable. The reasonableness of a ruling is relevant to the question whether there is a reasonable apprehension of bias. Absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias. Moreover, I'm not persuaded that there is any reason to disagree with the Divisional Court's characterization of the adjudicator's response to the four incidents that were raised in support of the application for judicial review and that formed the basis for this appeal. Whether considered individually or cumulatively, those incidents fall well short of supporting the claim of reasonable apprehension of bias. [Emphasis added.]

46In determining the reasonableness of the assertion to which exception is taken, it must be borne in mind that the documents in question, the existence of which I said the Ministry failed to disclose in a timely way, were the very subject of the motion for disclosure and the claim of privilege regarding which the submissions of the parties were fully heard on May 19, 2010. One of the issues that I was called upon to determine was the relevance of those documents, and that is dealt with at length in paragraphs 18 to 21 of the Interim Decision. As said at the start of paragraph 18: “To begin with, the production of documents cannot be compelled unless they are arguably relevant. I find the settlement agreements sought by the Complainant clearly relevant because they touch upon matters that lie at the heart of this litigation.” There then follows over two pages of reasons in support of that finding, and those reasons refer to matters that were within the purview of the Ministry’s knowledge long before the other parties learned of the existence of those documents.

47It is also disconcerting to have had the first part of the sentence separated from the rest and criticized in isolation. Ms. McIntosh had maintained that, rather than seek to rely on privileged documents, the Complainant ought to be content to put relevant questions about them to the Ministry’s witnesses, accept their answers, and move on. The second part of the sentence (to which no consideration was given) is that “the questions that Ms. McIntosh suggests be put to witnesses in lieu of [disclosure of the documents] might better have been put to Ministry witnesses who gave their evidence long before the existence of the settlement agreements became known to the Complainant”. That he was unable to do so underscores the need to examine those documents, and the explanation as to why he was unable to question previous witnesses about them is “the failure to have brought their existence to the attention of the other parties ... in a timely way”, i.e., when those witnesses were testifying. That this kind of failure (as reported in earlier decisions) occurred in the past without there having been any subsequent opportunity to address the particular issue emphasizes the need (lest the present opportunity be forfeit) to obtain the settlement documents “as background information” and as a “basis for formulating probing questions or for testing responses that might be simply self-serving”.

48Although the documents were found to be clearly relevant, their production could not be required pending a decision regarding the claim of privilege, nor was there any suggestion that the Ministry ought to have provided them to the parties just the same. Rather, the point was that, had the existence of these relevant documents been brought to the notice of the other parties sooner, the issue of privilege could have been dealt with at a time when those witnesses who are perhaps best able to speak to them were testifying. It is in that sense that it may be said without casting blame that there was a failure to provide that information in a “timely” way.

49In adding that this was but one instance of such failures, the intended reference was to similar findings in past decisions, two of the principle decisions having been mentioned in paragraph 29 of the Interim Decision. In reply, Ms. McIntosh took the view that the fact that I did not expressly refer in paragraph 40 to similar findings made in past decisions demonstrates conclusively that I have decided that there were other such failures in the course of the present hearings. However, it seems to me that when examined in context, the impugned wording would be found by a reasonable person to amount to this: “There have been a number of failures by the Ministry to disclose relevant matters in a timely way, and not having brought the existence of these settlement agreements to the attention of the parties is another such failure.” Read that way (or, indeed, in its original form), nothing can be inferred from it as to when such other failures are supposed to have occurred, and one must turn to the context.

50It seems plain to me that the reference in paragraph 40 to failures to disclose documents in a timely way is to actual findings expressly made, and not to harboured thoughts inadvertently given voice to. And Ms. McIntosh would be the first to insist that there has been no such actual findings in the present round of hearings—other than the finding in that very paragraph regarding documents the relevance and necessity of which were fully argued. Of course, the only places such actual findings can be found are in previous decisions of which a reasonable person with the same knowledge as the parties regarding the entire McKinnon case would be fully aware. Moreover, since what one reads at one point in reasons for a decision is to be understood in the light of what went before, not only is the reference to past decisions made in paragraph 29 significant (as the other parties maintain), but of even greater import is the specific example cited in paragraph 19 of the Interim Decision when explaining the finding that the settlement agreements are relevant.

51I think a reasonable person, having just read paragraph 19 a few pages earlier, would assume that the partial sentence in paragraph 40 refers back to that example and alludes to other such findings in past decisions. Surely it is unnecessary to spell out again and again as reasons progress matters referred to earlier. The example given in paragraph 19 (which was taken from paragraph 205 of the 2002 decision), is set out as follows (with the crucial part emphasized):

As it happened, the suggestion that Ms. Buhagiar censure the complainant was withdrawn because, as explained in her memorandum to Mr. Hamblin, "When I reminded Ms. Minassian of the concerns Mr. McKinnon had with me, she advised that I do the fact-finding and forward the information to the Superintendent". And she added that, "When asked Ms. Minassian said there was no need to tell Mr. McKinnon of the complaint at this time". The expert advice given was not to recuse herself because of a conflict of interest, but to conduct the fact-finding investigation behind the accused's back. Indeed, although he had written an occurrence report immediately after the incident, the complainant did not learn of this sorry affair until it was inadvertently mentioned in testimony given by Ms. Kosarov three months after Ms. Minassian had testified and could not be cross-examined on it.

52Even assuming that a reasonable person (again, having the same knowledge of the case as the parties) would conclude that I must be saying that other such incidents occurred during the present round of hearings, the other parties point out that such instances can be found in the over 9,000 pages of transcript recorded thus far. While all arguably relevant documents are to be disclosed, the record shows that the existence of some of them was discovered only by happenstance. In some such instances their relevance was readily acknowledged and counsel for the Ministry undertook to get them. In such circumstances, it would hardly seem prejudicial to refer to their subsequent production as being late (that is to say, not having been “timely”)—if that is what I am to be taken by the reasonable reader to have meant in paragraph 40.

53As an example of what the record shows regarding the timing of disclosures (and an example as well of the Commission’s shared concerns dealt with hereafter), counsel for the Complainant quoted at length from the transcript of evidence for February 9, 2010 (Vol. 23, beginning at page 4,456). That reported exchange amongst counsel for the Commission, the Complainant, the Ministry and the Tribunal need not be repeated. However, Ms. Hughes’ comment on it was as follows:

[T]hat excerpt in the transcript indicates a shared concern, and you'll notice that on February 9th there was an undertaking to produce what Mr. Rajan quite properly says, you know, “What was it? Was it reassigned to somebody else? Did it go to the GSB? What happened and where do we find that?” Well, we get that ultimately in Exhibit 255 and some other exhibits around that time when we get the Fic and Rusaw file. And that was in answer to my question under cross-examination of Ms. Mathur at the end of April. And so we got Exhibit 255, for example, that was produced only at that point, only after April 23rd. So we have an undertaking February 9th.

Only after I cross-examine again do we get the file which we see that there was a -- 255 is an e-mail from Tara Jackson to Fiona Crean cc'ing a Ms. Baxter saying that “I'm supposed to reassign the two cases to Geri Sanson for complete reinvestigation. Rather, I'm hopeful it will be resolved at mediation”, and so we have all kinds of exhibits, 255, 256, 257 that were then given.

I mean, those were the exact questions that Mr. Rajan asked back on February 9th. The Commission asks, not me. It was the Commission was asking “You know, what happened? There must be a paper trail. Did it go to the GSB? Did it get reassigned?” And Ms. McIntosh gives an undertaking to produce those on February 9th.

It's really just a factual matter. I'm not even relying on that as a contempt matter, but this is one example of we get documents late. It is, I submit, a factual matter, and I don't rely on it. You will not see in my Schedule A and B to the matter that -- documents like that, that we just got in a late way. The documents are actually listed with respect to the contempt motion, and you will see at page 16 the documents that we talk about that we say were a deliberate non-disclosure

54Ms. Hughes dealt at length with the implication that I had found reprehensible the bare fact that the Ministry had provided certain relevant documents and information only after the other parties had learned of their existence. She began by referring to the following paragraphs found in the reasons given by Cory J. in the decision of the Supreme Court of Canada in R. v. S.(R.D.), supra, beginning (intentionally) with paragraph 141:

These examples demonstrate that allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.

Allegations of reasonable apprehension of bias are entirely fact-specific. It follows that other cases in which courts have dealt with similar allegations are of very limited precedential value. It is simply not possible to look at individual case and conclude that the determination of the presence or absence of bias in that case must apply to the case at bar. Nonetheless, it is helpful to review some selected cases in which similar allegations have been made if only to observe the benchmarks against which the allegations were measured.

Thus, in Bertram, supra, some comments made by the trial judge during the course of a sentencing hearing suggested that he was predisposed to give effect to a joint sentencing submission before he had heard the details of the submission. Although the comments were described at p. 60 as “wholly inappropriate”, Watt J. indicated that the remarks must not be looked at in isolation. On the basis of a review of the whole proceedings, Watt J. concluded that no reasonable apprehension of bias arose from the trial judge's conduct because he had on other occasions stressed his willingness to hear submissions on the question that he appeared to have predetermined. In the circumstances, therefore, it could not be said that a reasonable person hearing his comments, with knowledge of the case, would conclude that he might not be impartial.

55In the context of Cory J.’s comments, Ms. Hughes then referred to the transcript for July 8, 2009, on which date she said she “had been raising disclosure issues [and] had asked for all arguably relevant documents”. She then quoted my reply as it appears at page 697 of Volume 4:

Now, my comment about the nature of the two documents you have, as being a response [to] something in progress [the disclosure of which might be expected], is simply that I think it might well be that Dr. Agard and the people with him in the Ministry did not consider it to be a response, and that's why it was not forthcoming. But now they know. And one of the difficulties about an order that says “produce everything that's arguably relevant” is that one has to determine who it is who is going to say what is relevant, what is arguably relevant. I am sure that the Ministry would be willing to produce whatever the Ministry and their counsel think is relevant.

56Ms. Hughes then brought home to the circumstances of this case the passages quoted from R. v. S.(R.D.):

And so at that point I had been asking for an order, and you had indicated clearly there may be issues with respect to “arguably relevant”, and so you then made the oral order with respect to “produce what are the relevant documents” at that time. And there are repeat comments throughout the transcripts with respect to that, where you have indicated that there may be a number of reasons why a document may or may not be produced. And so, in my submission, anybody looking at this, as the Supreme Court of Canada tells us they must -- look at the whole proceeding as a whole and look at the context of the matter, would -- clearly indicated that no issue, even the issue of whether or not something is arguably relevant, had been predetermined by you let alone, of course, a finding of contempt, which has a much higher standard.

57The fact that the Ministry was found by me in previous decisions of the Tribunal to have failed to provide relevant information or documents in a timely way would be an entirely unreasonable basis upon which to expect me to recuse myself, and I do not take Ms. McIntosh as having suggested otherwise. As to the relevance of the history of this litigation, however, Ms. Hughes referred to the “Guidelines” document provided by the Ministry, at page 31 of which it is said that “In R. v. Toth, the British Columbia Court of Appeal approves of the answers given by the trial judge” (Wood J.), who is then quoted as follows (to which quotation reference is made again at the end):

[I]t is always difficult and troublesome to a judge, when faced with proceedings of the sort that are before me today, to be certain that things said or done, rulings made, impressions gained, if you will, in other proceedings have not in some way affected one's ability to govern fairly - or not to govern - to judge fairly and to decide issues of fact and law fairly and impartially between the parties. That is a problem which faces any judge on any occasion. It is more complex and more difficult when there is a repetition of proceedings such as we have had in this Province over the last several months. On the other side of the coin, it is important that any suggestion of bias or predisposition be scrutinized carefully to ensure that there is some justification for it before it is given effect. Were it otherwise, those who were cynically minded would find a way to disqualify virtually every member of the judiciary and by that very process, avoid ever having to face the consequences of their conduct. So there's a balancing that has to be undertaken. And unfortunately, in the circumstances in which I am faced with this decision, I am the one who has to perform the exercise of balance. The only thing that I can do, Mr. Christie, at this point in time, to resolve the matter, is to assure that I do not feel at this point in time that any ruling which I have previously made in connection with similar or related matters has in any way affected my ability to try these persons fairly ...

58It was submitted by Ms. Hughes that the present situation is similar to Toth in that this litigation has been long and complex, has involved several distinct rounds of hearings, and has led to a great many decisions over the years. For her part, Ms. McIntosh referred to paragraphs 83 and 84 of Gomery as rejecting the relevance of such factors. In my view, however, those paragraphs are tied specifically to the peculiar facts of that case and do not suggest that the concerns troubling Wood J. in Toth can be of no significance in the present case.

59Counsel for OPSEU expressed a view similar to that of the Complainant regarding the relevance of the history of this litigation. He referred to Aitken v. Frontier School Division No. 48, 1985 CanLII 3659 (MB CA), [1985] 4 W.W.R. 323, a case in which a teacher’s dismissal was at issue, and about which Mr. Phillips had the following to say:

... in the course of adjudicating on this dismissal, a board trustee was permitted to read and consider the teacher's negative performance evaluations provided that he still approached the dismissal issue with an open mind, and the point that I would like to highlight for you is at paragraph 32, and the court says:

But unbiased does not mean uninformed. It does not mean that he has not read and is not troubled by negative evaluations of a member of the teaching staff of the Division. In the context of this case it means approaching the critical meeting with Mr. Aitken with a mind open to persuasion. The record before us suggests that this was so. ...

And we say that that is very much applicable to the case before you. You may well have concerns based on what you've seen and adjudicated in the past. You may be, in the words of the Manitoba Court of Appeal, troubled by this but that does not mean that you're approaching the matter with a closed mind, and in our submission, there is certainly nothing to suggest that you're approaching this matter with a closed mind on the record of this matter.

60I have already indicated that I feel bound by the standard applicable to judges, rather than by the closed mind/open mind standard referred to in Aitken. However, that case is relevant in another important respect: being unbiased does not mean being uninformed; nor does it mean not having made in the course of a proceeding numerous decisions that the party requesting recusal was opposed to.

61In reaching the decision regarding the settlement agreements in light of the submissions of the parties made when the motion was dealt with, it was incumbent upon me to make a finding (one way or the other) as to the relevance of those documents as well as to the necessity of their production, and to do so on a balance of probabilities—as opposed to applying the “beyond a reasonable doubt” standard of proof required in making a finding of contempt, as Mr. Rajan pointed out. When dealing in paragraph 40 with the issue of “necessity”, my reference to the relevance of the settlement agreements (the existence of which in fact had not been disclosed) ascribes neither cause nor motivation to the late surfacing of those or any other relevant documents during the course of the presently reconvened hearing, and I think none can logically be inferred from what was said.

62A “failure” may be defined (inter alia) as “something that falls short of what is required or expected”. It was beyond dispute that the documents were in the Ministry’s possession and that their existence had not been disclosed; it was found as a fact that they were clearly relevant; and, if relevant, their existence was to have been disclosed. In fact, that information was not disclosed to the Complainant, but was discovered by him. Is it, then, inappropriate to describe that set of facts as a “failure to disclose relevant documents in a timely way”? Are further arguments to be heard and more jurisprudence to be considered before one may reach that conclusion?

63Mr. Phillips touched upon that aspect of the matter quite tellingly, particularly in the second part of his submission quoted below:

In your paragraph 40, read in context, we say you are primarily concerned with justifying your conclusion that the production of the settlement was necessary, as that word was used in the case law. And you conclude with the finding that, without the minutes of settlements, there would be no clear basis for formulating probing questions or for testing responses that might simply be self-serving, and you decide, in fact, that production is necessary.

Your decision then is in no way directed as inquiring into the cause or the legal significance of any delay on the part of the Ministry. You are not inquiring into whether an order has been breached by the Ministry. You are not further inquiring into whether, even if there were a breach, whether it was wilful and deliberate in accordance with the test for contempt. And so we say you're not making any finding at all there. All you are doing is providing context as part of your justification for the issue that you are addressing.

64The final reference to Gomery made by Ms. McIntosh with which I shall deal was to paragraph 76, which reads in part as follows:

There exists a presumption that a decision maker will act impartially, and “[m]ore than a mere suspicion, or the reservations of a ‘very sensitive or scrupulous conscience,’ is required to displace that presumption” (Beno (CA), at paragraph 29). The onus of demonstrating bias lies with the person who is alleging its existence and the threshold for finding a reasonable apprehension of bias is high. But, where a reasonable apprehension of bias is found, the hearing and any decision resulting from it will be void, since the damage created by such an apprehension of bias cannot be remedied. ...

65After quoting from paragraph 76, Ms. McIntosh made the following comments:

And I know it says that the Court does not -- in paragraph 76, it makes the point that it's not the person who is the subject, if I can put it that way, of the contempt motion or whose perception is at issue. In other words, it's not the Ministry's view. It's a reasonable person's view, and I accept that, of course. But I do say, as Mr. Justice Binnie said in that case I was involved in the Supreme Court of Canada called CUPE and The Minister of Labor -- and this is apropos of the end of that quote from Lord Denning's case -- that the most important person in the room after a case is over is the losing party, and they have to be able to say to themselves, “Well, maybe I disagree, but I got a fair hearing. I had the opportunity to persuade that decision maker. That decision maker had not already decided that in this case I had failed to disclose relevant documents in a timely way”. And that is, in my respectful submission, a problem in this case.

66As already indicated, it is my opinion that in the present context the assertion that some “relevant information was not disclosed in a timely way” is simply a non-pejorative descriptor of sorts that is perfectly neutral because it is predicable of conduct both innocent and otherwise. It does not express “the” (or even “a”) matter to be resolved on the contempt motion, as though the mere suitability of the phraseology is a distinct issue separate and apart from the circumstances it may be used to describe. Rather, the issue consists of the specific allegations that the information was wilfully withheld, and repeatedly so, to a degree that the Complainant thinks egregious—indeed, contemptuous. That issue was in no way addressed by me, and whether the Ministry would be the “losing party” when that motion is considered (by whomever) remains to be seen. However, that a “losing party” is unlikely to agree that he or she has misconstrued the issue and might therefore go away convinced that the hearing was not fair is no basis upon which a court or a tribunal must or should recuse him or herself.

67If relevant documents were hidden away by the Ministry in deliberate and wilful disregard of the Board’s orders, only to be discovered by the Complainant later in the proceedings, then, of course, it could be said of that circumstance: “the Ministry failed to disclose relevant matters in a timely way”. However, the reverse is not true, because such failures may be virtually innocent; hence, to say no more than that is to say nothing as to reprehensibility and would not suggest to a reasonable person (particularly if he or she is familiar with the entire case) that I have prejudged the issues of cause and motivation that lie at the heart of the contempt motion.

68Thus, having regard to the factual record of these proceedings (from the very beginning to date) and the analysis I have made of the submissions of the parties, the suggestion that I have prejudged the fundamental issue or any other viable issue raised by the contempt motion is, in my opinion, unfounded.

Conclusions

81As to the Ministry’s request that I recuse myself from the hearing of the Complainant’s contempt motion on the basis of its perception of the scope and meaning of paragraph 40 of the Interim Decision, together with the nuance it places on the reference to the shared concerns of OPSEU and the Commission, I find that these matters do not give rise to a reasonable apprehension of bias. As to the Ministry’s submission that a reasonable apprehension of bias may be found or supported by the fact that the Interim Decision is complete and expressed in more cogent terms than is the incomplete draft document sent to the parties for a limited, apparently agreed upon, purpose, I find that those circumstances do not provide a sound and objective basis upon which a reasonable apprehension of bias could be found or such an allegation bolstered.

82The hearing of a contempt motion can only be regarded as burdensome; but it is an obligation that cannot be shirked by acceding to an unfounded recusal request when faced with that unpalatable prospect. As Mr. Rajan pointed out, the integrity of the process itself is at stake, and he referred to paragraphs 113, 116 and 117 of the decision of the Supreme Court of Canada in R. v. S.(R.D.), supra in that regard. I need only repeat the first part of paragraph 113, which is as follows:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. ...

83I think it useful to return to parts of passages quoted from various authorities cited previously in order to tie the present circumstances to some of those observations. I begin with the Judicial Council’s guideline document provided by the Ministry:

There can be no rule that a judge should not preside or continue to preside at a trial or hearing when a contempt has been alleged just because he or she has been attacked or criticized, for if there were such a rule a judge could easily be driven out of a case. Similarly, a judge should not disqualify himself or herself just because ... his or her order has been disobeyed ... particularly if disqualification will delay proceedings to the prejudice of any party. ... But, if it is possible to sever an alleged contempt from a proceeding at bar, a judge should consider stepping aside if he or she ... has expressed any opinion which might reasonably be regarded as a prejudgment, or if the circumstances raise any bona fide question of bias, interest or partiality on the part of the judge beyond a mere allegation.

84For reasons already given, I am satisfied that I have not expressed any opinion that might reasonably be regarded as a prejudgment, nor do I think any of the other circumstances referred to by the Ministry raises a bona fide question of bias, interest or partiality, those circumstances being my reference to the shared concerns of the Commission and OPSEU and various differences between my incomplete draft reasons and my June 2 decision. Moreover, even assuming that it is feasible to replace an ad hoc board for such a purpose, I am of the view that it is not possible to sever the contempt motion from the rest of the proceeding without causing serious and irreparable harm.

85Regardless of the outcome of the recusal motion, the very matters that are outlined in the contempt motion will undoubtedly be raised in the course of final submissions and a request made for various orders in respect of them. To recuse myself from dealing with those matters in relation to the contempt motion would be to invite a virtually irresistible request at the close of the proceedings that I recuse myself from dealing with those aspects of the final submissions—aspects that might be critical in formulating such orders and remedies (if any) that might be called for. Moreover, my disqualification would result in very considerable delay causing extreme prejudice to the Complainant whose wait to return to the workplace seems to him interminable.

86Having regard to the circumstances of this case, the quotation from the Ontario Provincial Police case set out in paragraph 45 (supra) is quite apt. I believe my rulings were reasonable and understandable, particularly having regard to “the difficulty, length and politically charged nature of the proceedings”. And, given my view that paragraph 40 of the Interim Decision was reasonable, I find particularly apropos paragraph 54 of that case in which it is said that: “Absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias”.

87In light of the situation before me I find rather significant what Wood J. had to say in the Toth case, as quoted in the guidelines document provided by the Ministry, and it is useful to repeat the following part of it with an interpolation of my own:

... [I]t is important that any suggestion of bias or predisposition be scrutinized carefully to ensure that there is some justification for it before it is given effect. [I believe I have done that.] Were it otherwise, those who were cynically minded would find a way to disqualify virtually every member of the judiciary and by that very process, avoid ever having to face the consequences of their conduct. So there's a balancing that has to be undertaken.

88Finally, to paraphrase the remaining part of the quotation from the judgment of Wood J.: Unfortunately, in the circumstances with which I am faced, I am the one who has to perform the exercise of balance. The only thing that I can do at this point in time, to resolve the matter, is to assure the Ministry that I do not feel that any ruling I have previously made in connection with similar or related matters in this lengthy proceeding has in any way affected my ability to deal with the Complainant’s contempt motion fairly.

89It follows from all of the above that I find that the Ministry has failed to satisfy the onus on it to meet the test set out in Committee for Justice and Liberty (supra), a burden spelled out in case after case, including the decision in Gomery, as seen in paragraph 76 of that case:

90For all the above reasons I have come to the conclusion that I cannot in good conscience recuse myself from the thorny task of hearing the Complainant’s contempt motion.

Dated at Toronto, this 13^th^ day of July, 2010.

“Signed by”

H. Albert Hubbard

Adjudicator

McKinnon v. Ontario (Correctional Services), 2010 HRTO 1521

Case Summary

Introduction

Relevant Background

General Elements of Recusal Law referred to by the Parties

Principal Basis for the Ministry’s Apprehension of Bias

Submissions Regarding Paragraph 40 of the June 2 Decision

Other Contentious Aspects of the June 2 Decision

Conclusions