COURT FILE NO.: 103/07

DATE: 20071023

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CAPUTO, GANS AND SWINTON JJ.

B E T W E E N:

MICHAEL DICKSON

Applicant

• and -

CANADORE COLLEGE

Respondent

Ian M. McLean, for the Applicant

Ian R. Dick, for the Respondent

HEARD at Toronto: February 19, 2007

Gans J. (Caputo J. Concurring):

1I do agree with my colleague, Justice Swinton, in the result and would dismiss the application for the reasons stated by her in that portion of her reasons, which speaks to the issue of implied waiver of bias. I am in complete agreement with her articulation of the principles of law and their application to the facts of this case.

2I do, respectfully, disagree with Swinton J.’s conclusion in respect of the first mentioned issue of reasonable apprehension of bias as that concept was defined and described in the judgement of De Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394-5. In my opinion, an informed person, viewing the matter realistically and practically would conclude that the prior undisclosed involvement of the Registrar of Admissions of the Respondent College, occurring in the wake of a previously impugned appeal hearing of the College involving this Applicant, might very well result in his, consciously or unconsciously, not deciding the matter fairly. In my view, as a minimum, Mr. Alexander should have made disclosure to his co-panellists and to both counsel at the outset of the hearing of his familiarity with the Applicant’s student file and the fact that they had previously met to at least canvass their views on the matter.

3That having been said, and not withstanding his trepidation, Mr. Dickson could and should have raised the matter with his own lawyer, if only in private, to seek his counsel on the issue had he any misgivings, particularly when the notion of procedural fairness was raised at the outset of the hearing.

Gans J.

Caputo J.

SWINTON J. (Concurring):

4The applicant Michael Dickson has brought an application for judicial review of the decision of an appeal committee of Canadore College dated June 21, 2006, which dismissed his appeal and held that the respondent College had acted appropriately in involuntarily withdrawing him from the diploma (RN) programme. This application raises issues of reasonable apprehension of bias in the way the appeal panel was constituted and implied waiver.

Background Facts

5The applicant was a third year student in the RN program at Canadore College when he was involuntarily withdrawn on October 27, 2003 because of concerns about his performance in the clinical part of the programme. He unsuccessfully pursued appeals through the College internal procedures and then brought an application for judicial review. Another panel of the Divisional Court granted that application on March 21, 2005 on the grounds that the applicant had been denied procedural fairness because of the way in which the Level 2 appeal panel had proceeded. The matter was remitted for a hearing before a new panel.

6On December 8, 2005, the applicant spoke to the College Registrar, Dan Alexander, asking about any documents outlining the guidelines and procedure of learning contracts with students. Mr. Alexander indicated that no document existed, and then asked the reason for the request. The applicant told Mr. Alexander of the involuntary withdrawal and the judicial review proceedings, and explained that he was seeking material to support his case in the new hearing. Mr. Alexander then pulled and reviewed the applicant’s academic file, and indicated to the applicant that all was in order.

7In an affidavit filed for this application, the applicant states that he explained to Mr. Alexander what had happened in the courses that led to his involuntary withdrawal and spoke of his intent to pursue his appeal rights. He stated that he was under the impression that Mr. Alexander “reviewed this file with some shock, doubt and unbelief and stated to the effect ‘I had no idea that this was going on’ ”. Mr. Alexander indicated that he would do some research and get back to the applicant. However, there was no follow up with the applicant.

8The new appeal panel was reconvened on June 21, 2006. The original three panel members, Jim Connell, Karyn Brearly and Randy Boyer, had had no prior involvement in the matter. About a week before the hearing, Mr. Boyer was replaced by Mr. Alexander, and the applicant’s counsel was told of the change. However, the applicant was not aware of the change before the hearing.

9The applicant has deposed that he was shocked to see Mr. Alexander at the hearing on June 21, 2006. Although he was represented by counsel, he raised no issue with respect to Mr. Alexander. He states in his affidavit that he was intimidated by the presence of Mr. Alexander.

10The panel invited the parties to raise any issues or objections with respect to the process, and none were made. It is common ground between the parties, however, that the applicant’s counsel was not advised that his client had met with Mr. Alexander prior to the hearing. The panel then heard evidence from the nursing faculty and the applicant.

11The applicant first objected to Mr. Alexander’s participation in the panel when he received the decision of the panel, dated July 11, 2006, some three weeks later.

The Issues

12There are two issues in this application:

(a) Was there a reasonable apprehension of bias in the appeal panel?

(b) If so, was there an implied waiver of bias?

Analysis

Issue No. 1: Was there a reasonable apprehension of bias in the appeal panel?

13There is no dispute between the parties that the appropriate standard of review to be applied when considering whether there was a reasonable apprehension of bias is correctness.

14A majority of the Supreme Court of Canada judges in R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 described bias as denoting a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues (see, for example, Cory and Iacobucci JJ. at para. 105).

15The Supreme Court of Canada has applied the test set out in the dissenting reasons of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 to determine whether a decision maker is disqualified on the grounds of a reasonable apprehension of bias (see, for example, R.D.S., supra, and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 60 and 76):

[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 Court of Appeal, that 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.” (at 394-5)

De Grandpré J. went on to state that the grounds of the apprehension must be substantial.

16Therefore, the question to be determined in this application is whether a reasonable person, fully informed of the facts, would conclude that it was more likely than not that Mr. Alexander would not decide the appeal fairly.

17In my view, the applicant has not made out a case of reasonable apprehension of bias. The evidence shows that Mr. Alexander, in his capacity as Registrar of the College, met with the applicant in December 2005. Mr. Alexander examined the applicant’s College file to ensure that everything was in order. He heard the applicant’s concerns and plans and, according to the applicant, appeared to be shocked by what had happened. There is nothing in the applicant’s affidavit that suggests Mr. Alexander acted improperly during the hearing.

18This evidence does not suggest that Mr. Alexander, as part of the appeal panel some six months later, would not decide the appeal fairly and impartially because of his earlier meeting with the applicant. If anything, the evidence suggests that Mr. Alexander was predisposed in favour of the applicant in the appeal.

19The fact of some prior knowledge of the facts giving rise to the appeal is not alone sufficient to give rise to a reasonable apprehension of bias. I note that in Waterloo (Regional Municipality) v. Elgin Construction, [2001] O.J. No. 4368 (S.C.J.), a case relied upon by the applicant, one member of an arbitration board had met with the principal witness for one of the parties prior to the hearing and had received information favourable to that party which was not before the tribunal. The Court accepted the argument of the opposing party that there was a reasonable apprehension of bias, given the nature and degree of information possessed by the tribunal member (at paras. 20-23).

20The one encounter with the applicant six months before the hearing does not give rise to a reasonable apprehension that Mr. Alexander, consciously or unconsciously, had a closed mind or a predisposition to find against the applicant.

Issue No. 2: Was there an implied waiver of bias?

21A party may waive objections to a decision-maker who would otherwise be disqualified on the basis of bias. If a party fails to make a timely objection to the participation of the decision-maker, he will generally be held to have waived his objection (Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892 at 942 and 971; Re Human Rights Tribunal and Atomic Energy of Canada Ltd., 1985 5528 (FCA), [1986] 1 F.C. 103 (C.A.) at 113).

22In this case, even if the applicant had demonstrated a reasonable apprehension of bias, he waived his objection to Mr. Alexander’s participation.

23The applicant learned of Mr. Alexander’s participation on the day of the hearing. Although the applicant was represented by counsel, he made no mention of his prior contact with Mr. Alexander, nor did he raise any objection in the days following the hearing. It was not until he received the unfavourable decision that he raised a concern about Mr. Alexander’s participation. In my view, by his conduct, he impliedly waived any objection to Mr. Alexander’s participation. While there may be some circumstances in which a failure to raise bias at the outset may not amount to an implied waiver, here the applicant has provided no reasonable explanation for his failure to raise his concerns in a more timely fashion, even with his own counsel.

Conclusion

24The application for judicial review is dismissed. Costs to the respondent are fixed at $3,500.00.

Swinton J.