COURT FILE NOS.: 262/07 AND 266/07

DATE: 20080222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEITCH r.s.j., GREER and swinton JJ.

B E T W E E N:

UFCW CANADA/UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, SARY KEO, BAN LENG, PHEAP MUTH and RITH CHOR

Applicants

• and -

ROL-LAND FARMS LIMITED, HANK VANDERPOL and AGRICULTURAL, FOOD AND RURAL AFFAIRS TRIBUNAL

Respondents

AND BETWEEN:

DIANE HAROLD

Applicant

• and –

ROL-LAND FARMS LIMITED, HANK VANDERPOL and AGRICULTURAL, FOOD AND RURAL AFFAIRS TRIBUNAL

Respondents

Chris G. Paliare for the Applicants

Kevin A. Egan for the Respondents Rol-Land Farms and Hank Vanderpol

Stephen F. Gleave and Sean Sells for the Respondent Tribunal

Jack Coop and Fateh A. Salim for the Attorney General of Ontario

Paul J. Cavalluzzo and Fay Faraday for the Applicant

Kevin A. Egan for the Respondents Rol-Land Farms and Hank Vanderpol

Stephen F. Gleave and Sean Sells for the Respondent Tribunal

Jack Coop and Fateh A. Salim for the Attorney General of Ontario

HEARD at Toronto: November 13 and 14, 2007

SWINTON J.:

[1] The UFCW Canada/United Food and Commercial Workers International Union (“the Union”) and Diane Harold have brought applications for judicial review of three decisions of the Agricultural, Food and Rural Affairs Tribunal (“the Tribunal”) dated March 29, May 4 and May 10, 2007, which added Ms. Harold as a party to an unfair labour practice complaint. The applicants also allege that there is a reasonable apprehension of bias in the Tribunal.

[2] The applications were originally brought on an urgent basis pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”) and were heard by Jennings J. on June 19, 2007. He determined that the test for urgency had not been met and declined to hear the applications.

Background Facts

[3] Rol-Land owns and operates agricultural businesses in several Canadian provinces and the United States. Its business predominantly involves cultivating, processing and distributing mushrooms. The present dispute arose out of its operations in Kingsville, Ontario, where it employs between 270 and 300 workers.

[4] The four individual applicants in Court File 262/07, Sary Keo, Ban Leng, Pheap Muth and Rith Chor (the “Employees”), were employed as mushroom pickers at Kingsville. They were members of the Union and were known by the employer to be Union members. On or around June 20, 2006, they were given two separate directions by a supervisor to re-do the picking of two particular mushroom beds. According to their subsequent unfair labour practice complaint, they completed the work, but the next day they were brought into the office and questioned by management staff as to why they had not followed directions. They were then sent home pending further investigation.

[5] The applicant Diane Harold was employed as the Human Resources Administrator at the Kingsville operation at the relevant time. She was directed to conduct an investigation with respect to the four Employees. Having done so, she concluded that the incidents were not serious, and that there was no just cause for termination. She communicated this to her supervisor.

[6] According to Ms. Harold, she was then neutralized from the investigation and decision-making process. The four Employees were terminated on June 26, 2006, and the termination letters were drafted by employees other than Ms. Harold. Along with the Union, the Employees made a complaint to the Tribunal on September 6, 2006, claiming that Rol-Land Farms had terminated the Employees in breach of the Agricultural Employees Protection Act, 2002, S.O. 2002, c.16 (“the AEPA”) – more precisely, they had been terminated for union participation and union activity contrary to ss. 8, 9 and 10.

[7] Ms. Harold commenced a wrongful dismissal action against Rol-Land after her employment was terminated around September 18, 2006. She filed an affidavit in that litigation stating that she had been terminated because she opposed dismissing the four Employees. She agreed to be a witness for the Union and the Employees before the Tribunal and agreed to have her affidavit filed as part of their complaint. In a letter from Union counsel dated October 26, 2006, the Tribunal was informed that Ms. Harold’s affidavit was being relied upon by it in support of the complaint, and the affidavit was filed with the Tribunal on two occasions.

The Statutory Framework

[8] The complaint brought by the Union and the four Employees is the first complaint of an alleged violation of the AEPA. The AEPA was enacted in 2002 in response to the decision of the Supreme Court of Canada in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, in which the Court held that the total exclusion of agricultural employees from provincial labour relations legislation violated s. 2(d) of the Canadian Charter of Rights and Freedoms and was not justified under s. 1.

[9] The Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A (the “LRA”) excludes an agricultural employee from that Act. Instead, the relations of employers and employees in the agricultural sector are governed by the AEPA, which came into force June 17, 2003. Its purpose is to protect the right of agricultural employees to form and maintain an employees’ association and to participate in its lawful activities.

[10] The Tribunal is given jurisdiction to hear complaints of breaches of the AEPA. It is established pursuant to s. 14 of the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M.16. Subsections 14(1.2) and (1.3) establish a special roster of the Tribunal for proceedings under the AEPA, and four members have been designated for that roster. In the decisions under review, three of the four members sat as a panel.

[11] Section 11 of the AEPA permits complaints to the Tribunal alleging that there has been a contravention of the Act. In this case, the complaint alleged violation of ss. 8 through 10: the prohibition on employer interference with an employees’ association, the prohibition on the employer’s interference with employees’ rights, and the prohibition on intimidation and coercion.

[12] “Employer” is defined in s. 2(1) to mean

(a) the employer of an employee, and

(b) any other person who, acting on behalf of the employer, has control or direction of, or is directly or indirectly responsible for, the employment of the employee…

The prohibitions in ss. 8 and 9 of the AEPA prohibit an “employer, employers’ organization or person acting on behalf of an employer or an employers’ organization” from interfering with employees’ associations or employees’ rights.

The Tribunal’s Decisions on Party Status

[13] The two named respondents to the complaint were Rol-Land Farms Limited and Hank Vanderpol. The complaint makes no allegation against any individual for breach of the Act except Mr. Vanderpol.

[14] Ms. Harold is mentioned in paragraph 51 of the complaint, which states that she participated in management meetings in which the Employees were questioned. In paragraph 57, the complaint states that she told one of the Employees investigated, “we investigated everything about you, that’s why you are fired”. She also refused to provide information with respect to the investigation or the reasons for firing. In paragraph 58, the complainants pleaded that the terminations were for such minor or trivial concerns, there appeared to be lack of cause, and a contrary motive ought to be presumed in the circumstances. Other workers were not disciplined or questioned, leading the complainants to say, “Such conduct smacks of discriminatory treatment.”

[15] No relief is sought against Ms. Harold in the complaint. Among the remedies sought in paragraph 93 is a declaration that the Act was breached, a cease and desist order, reinstatement for the Employees, a posting of a notice of violation, notification to other employees of the breach, reasonable access to the workplace for the Union, and damages or compensation for the Employees.

[16] On or around October 26, 2006, the Union and the Employees filed Ms. Harold’s affidavit as part of their complaint and expressly indicated that the affidavit was being relied upon by them in support of their complaint. On or about March 15, 2007, they filed a complete copy of the documentary evidence on which they relied in their complaint, and included Ms. Harold’s affidavit and exhibits as part of their complaint.

[17] In a letter dated March 20, 2007, the Tribunal, on its own motion, raised the question of whether particular individuals who were referred to in the complaint, including Ms. Harold, should be added as respondent parties. Subsection 11(3) of the AEPA deals with parties, providing that

The parties to the hearing shall be,

(a) any employee, employees’ association, employer, employers’ organization, or other person or entity who filed the complaint;

(b) any employee, employees’ association, employer, employers’ organization, or other person or entity who is alleged in the complaint to have contravened this Act; and

(c) any other person or entity that the Tribunal specifies as a party.

[18] Without giving notice to the individuals, the Tribunal held a hearing to determine party status. On March 29, 2007, it issued an interlocutory decision in which it ruled that the five named individuals referred to in the complaint, including Ms. Harold, were entitled to be parties to the proceedings. The Tribunal stated,

It appears to the Tribunal that the above-named individuals are persons alleged in the Complaint to have contravened the Act.

The AEPA therefore entitles the above-named individuals to be parties.

[19] In response to the decision, counsel for the Union and the Employees clarified that they did not seek any personal relief against Ms. Harold. Through counsel, Ms. Harold objected to the ruling, which had been made without providing her notice and an opportunity to be heard.

[20] On April 12, 2007, the Tribunal issued a decision indicating that the newly added parties would be given the opportunity to make written submissions on their party status. Following the receipt of written submissions, the Tribunal issued a further decision dated May 4, 2007, in which it maintained its ruling of March 29, 2007, which had indicated that Ms. Harold was “entitled to be a party”.

[21] On May 10, 2007, the Tribunal released its reasons for that decision. Relying on s. 11(3)(b) of the AEPA, it stated that Ms. Harold, among others, was named in the complaint. It went on to find that all the named persons were alleged to have contravened the AEPA. With respect to Ms. Harold, the Tribunal made reference to paragraphs 51, 57 and 58 and concluded that there was a factual finding to be made whether Ms. Harold had violated the AEPA. The Tribunal made reference to s. 11(3)(b), and concluded:

Therefore, it is the AEPA which requires them [the named individuals] to be parties. However, the parties are entitled to decide for themselves whether or not they choose to participate in the hearing.

[22] During the proceedings to this date, the Tribunal had retained Leslie McIntosh, a senior lawyer with the Crown Law Office - Civil of the Ontario Ministry of the Attorney General to act as its counsel. The Union has been involved in longstanding litigation against the Attorney General of Ontario in several constitutional challenges that have addressed the rights of agricultural workers to unionize and bargain collectively. One of those constitutional challenges, Fraser v. Ontario (Attorney General) (2006), 2006 121 (ON SC), 79 O.R. (3d) 219 (S.C.J.) attacked the validity of the AEPA. Farley J. rejected the Charter challenge, holding that the Tribunal must have the opportunity to demonstrate its ability to show whether the AEPA is an effective means of protecting the rights of agricultural workers. That decision is presently under appeal to the Court of Appeal.

[23] Following the Tribunal’s May 4, 2007 decision, Ms. Harold sought clarification about the role of counsel in the Tribunal proceedings. As well, counsel sought information about the background, expertise and experience of each of the members of the panel, particularly relating to labour relations and law, and a statement as to which panel member represents the interests of agricultural employees.

[24] In a letter of May 10, 2007, the Tribunal responded by referring to its interlocutory decision on conflict of interest of May 10, 2007. The reasons refer to an order of April 12, 2007 referring counsel to three cases dealing with conflict of interest and state that the referral of these cases was done “in accordance with the well established principle that if the Tribunal receives any legal advice from its counsel, it will make the nature of the advice known to the parties so that they can make submissions with respect to the law”.

[25] With respect to the inquiries about the panel members, the letter appended a brief synopsis of the members of the Tribunal entitled to hear matters under the AEPA, stating that no member is appointed to represent the interests of employees or employers.

The Issues

[26] There are two issues raised by these applications for judicial review:

1. Did the Tribunal exceed its jurisdiction, in its interpretation and application of s. 11(3)(b) of the AEPA, by adding Ms. Harold as a respondent party to the complaint?

2. Should the Tribunal’s proceedings be quashed due to a reasonable apprehension of bias?

[27] The Tribunal and the Attorney General brought motions to quash these applications, which were heard as part of the responding submissions. These motions raise the following issues:

1. Are the applications for judicial review premature?

2. Is the reasonable apprehension of bias claim moot, given the recusal of counsel for the Tribunal?

The Standard of Review

[28] We agree with the parties’ submission that the standard of review is correctness with respect to the decision on party status.

[29] The decisions of the Tribunal are protected by a privative clause in s. 16 of the AEPA, which states that a decision is “final and binding on the parties”. Although the privative clause is not as strong as that found in s.116 of the LRA, still some deference is warranted.

[30] Secondly, the Tribunal as a whole is a generalist tribunal, dealing with a wide range of agricultural disputes. While there is a special roster to deal with employment disputes, the panel does not sit as a tripartite board, with representatives of labour and management, as in the case of the Labour Relations Board. Thus, it appears that the Tribunal does not have specialized expertise in labour relations matters.

[31] More importantly, however, the substantive issue in this case is the question who may be added as a party. This question requires interpretation of the AEPA, as well as consideration of the complaint and other provisions of the AEPA. This is a question on which the Tribunal has no greater expertise than this Court. Moreover, the question relates directly to the scope of the Tribunal’s jurisdiction, as the applicants allege that the Tribunal, having failed to consider relevant factors, lost jurisdiction.

[32] Given these factors, we are of the view that the standard of review is correctness on the party issue.

[33] With respect to the issue of reasonable apprehension of bias, the only question is whether there was a breach of the rules of procedural fairness that are required in the circumstances (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10).

Evidentiary Issues

Motion to adduce new evidence

[34] At the hearing of the applications before this panel, Rol-Land Farms and Mr. Vanderpol brought a motion seeking to adduce new evidence and allowing them to rely on an amended factum. The new evidence was an affidavit that purported to show an intention of the applicant Union to breach a settlement agreement between the Union and Rol-Land Farms.

[35] That motion was dismissed on the grounds that the evidence was not relevant to the matter before us. It relates to a claim of abuse of process, which should properly be brought before the Tribunal.

The admissibility of volume 3 of the Record of Proceedings

[36] The Tribunal filed a three volume Record of Proceedings. The first two volumes deal with matters relating to the three decisions under review. The third volume deals with matters from June to October, 2007, after these proceedings were commenced. It includes correspondence between counsel and, most importantly, a “Statement of the Tribunal re: Allegations of Bias”, dated October 5, 2007, which purports to respond to the bias allegations. It also attaches biographies of Tribunal panel members that are much more detailed than the information provided to Ms. Harold’s counsel in the May 10, 2007 letter.

[37] As indicated in an oral ruling during the hearing, volume 3 of the Record of Proceedings is not admissible. Section 10 of the JRPA requires a tribunal to file its record of proceedings when served with an application for judicial review of a decision. It is the record of proceedings relating to the particular decision that is to be filed, as is clear from the words of s. 10:

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application, the record of proceedings in which the decision is made. (emphasis added)

[38] Thus, the content of volume 3 is not properly part of the record required to be filed pursuant to s. 10 of the JRPA, as it post-dates the decisions under review. Moreover, it is not relevant to the issue of reasonable apprehension of bias before this Court, as it responds to an issue of actual bias.

[39] Counsel for the Tribunal submitted that the Statement was properly before this Court, as a similar approach had been followed in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. In each of those cases, an allegation of reasonable apprehension of bias was made - against a member of the Supreme Court of Canada in Wewaykum and against the chair of a tribunal in Committee for Justice and Liberty. At the outset of the hearing, the challenged adjudicator filed a statement in response. In Wewaykum, Binnie J. then withdrew from participation in the proceedings. The parties then made submissions based on the material filed (at para. 4).

[40] The Statement here was generated long after the applications for judicial review commenced. After Jennings J. refused to hear these applications on an urgent basis, the Tribunal invited the applicants to make submissions on bias. However, the applicants refused to do so, on the basis that the Tribunal had pre-judged the issue by taking a position on the merits in its factum filed for the proceedings before Jennings J. Subsequently, the Tribunal made its Statement dated October 5, 2007, without notice and without calling on the parties for submissions. The Tribunal has declined to provide any opportunity to the applicants to test the allegations in the Statement.

[41] While evidence relating to bias may be provided by affidavit evidence in a proper case, that is not the nature of this Statement or the other material in volume 3. It was inappropriate for the Tribunal to have issued the Statement, given that there were no allegations of actual bias and given that the Statement was issued so late in the proceedings and without notice. Therefore, volume 3 is inadmissible.

Are the applications for judicial review premature?

[42] The Attorney General and the Tribunal take the position that the applications should be dismissed because they are premature. They submit that the allegation of reasonable apprehension of bias should have been first brought to the Tribunal for its consideration, and the issue of party status should not be addressed at this point in the proceedings.

[43] Judicial review is a discretionary remedy, and the Divisional Court has taken the position that it should not fragment proceedings before administrative tribunals. Absent exceptional circumstances demonstrating that the application should be heard, the Court will not intervene at a preliminary stage in proceedings. However, where the preliminary decision will likely result in a fundamental failure of justice, the Court may exercise its discretion to hear the application (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.) at pp. 2-3; Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (C.A.) at 490; Gage v. Ontario (Attorney General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Div. Ct.) at 553). This Court has stated that it will review an interlocutory decision of a tribunal where a process is fatally flawed (Roosma v. Ford Motor Co. of Canada (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 at 25-26).

[44] In this case, as in Great Atlantic &Pacific Co. of Canada Ltd. v. Ontario (Minister of Citizenship), [1993] O.J. No. 4179 (Div. Ct.), the question whether Ms. Harold was properly added as a party should be addressed as an interlocutory matter. The issue of party status is a discrete issue that has been finally determined by the Tribunal. The full record upon which the Tribunal made its decision is before this Court.

[45] Failure to address the issue of party status at this time will subject Ms. Harold to considerable prejudice. The proceedings before the Tribunal are expected to last between 20 and 25 days. While the respondents have suggested that Ms. Harold need not participate, that argument is without merit, given that she risks having findings made against her. Before she should be put to the trouble and expense of a hearing, the correctness of the Tribunal’s decision to add her as a party should be determined. Therefore, this is one of the exceptional cases in which the application for judicial review of the interlocutory decision should be determined.

[46] With respect to the bias issue, the prematurity argument is more difficult. It is desirable that a party alleging bias against a tribunal first raise the issue before the tribunal, so that the members can respond to the issue, curing a problem if there is one and providing a response to the allegation of bias, should there be a subsequent application for judicial review. In this case, the issue of bias was first raised in the applications for judicial review.

[47] However, on the facts of this particular case, the application is not premature, given the Tribunal’s response to the application for judicial review. Both in its initial factum in these proceedings and in the material filed for the hearing, the Tribunal has taken a position on the merits of the bias issue. Given that, it is inappropriate to send the issue back to the Tribunal for consideration, as it has pre-judged the issue.

[48] Moreover, in these applications, the allegations of bias include both the choice of the Tribunal’s counsel and the manner in which the Tribunal has conducted itself in these judicial review proceedings. The applicants take the position that the filing of the material in volume 3 of the Record of Proceedings is further support for their allegation of reasonable apprehension of bias.

[49] Given the content of the bias argument and given that the Tribunal has, in effect, taken a position on the bias issue, I would not quash this aspect of the applications for judicial review on the ground of prematurity.

Did the Tribunal exceed its jurisdiction, in its interpretation and application of s. 11(3)(b) of the AEPA, by adding Ms. Harold as a respondent party to the complaint?

[50] Subsection 11(3)(b) of the AEPA provides that the parties to the hearing include any employee or other person “who is alleged in the complaint to have contravened this Act.” All the parties, including the Tribunal, took the position that the decision of the Tribunal to add Ms. Harold as a party was jurisdictional in nature.

[51] The respondents submit that the Tribunal correctly added Ms. Harold as a party because there are allegations against her in the complaint. Moreover, s. 11(5) of the AEPA allows the Tribunal to make an order against a person who has acted contrary to the Act, while s. 11(6) sets out its remedial authority, including the power to order a person to rectify the act or acts complained of.

[52] In my view, the Tribunal erred in making Ms. Harold a party to the complaint for a number of reasons. First, the complaint does not allege that Ms. Harold personally violated the AEPA. The Tribunal appears to have taken the position that because a person is named in the complaint, he or she is a party. However, before an individual can be added as a party, the Tribunal must assess whether references to that individual substantively amount to an allegation that he or she has breached the Act.

[53] When one reads the paragraphs in the complaint referring to Ms. Harold, it is clear that they are not sufficient to amount to allegations that she personally breached the Act. Paragraph 51 states that she participated in management meetings. Paragraph 57 states that she investigated and refused to provide information about the investigation and the reasons for the firings. There is no suggestion that she was responsible for the termination of the four Employees, or that she personally violated the AEPA by interfering with the Employees’ rights or by seeking to intimidate them.

[54] Indeed, in paragraph 59, the complaint states that the Respondents – that is, Rol-Land and Mr. Vanderpol – “were targeting the terminated employees to punish them and send a clear message to other employees” about the dangers of participating in union activity. The only allegations with respect to Ms. Harold are that she made certain statements, on the basis of which the complainants ask the Tribunal to determine that the respondent Rol-Land did not have a legitimate reason to terminate the four Employees.

[55] Moreover, the remedies sought in paragraph 93 of the complaint are clearly addressed to the named respondents, the employer Rol-Land and its directing mind, Mr. Vanderpol. Ms. Harold is a former employee, and would have no capacity to provide the remedies sought, such as access to the business premises and reinstatement in employment. Thus, looking at the complaint as a whole, the Tribunal would have no basis for finding a contravention of the AEPA by Ms. Harold or a basis for ordering relief against her.

[56] Second, the Tribunal failed to consider relevant information before it that clearly shows there are no allegations made against Ms. Harold by the complainants. The Tribunal also failed to take into account the Union’s stated position that it was relying on Ms. Harold’s evidence, and that she should not be made a party, as it was not seeking any remedy against her.

[57] The Tribunal made no reference to the affidavit, which was made part of the complaint, and which shows that Ms. Harold opposed the terminations. The affidavit shows clearly that Ms. Harold did not violate the Act, as she states that she counselled against the terminations and she did not participate in the decision to terminate. According to John Evans, who was Union counsel before the Tribunal, the Tribunal indicated that the members had read the affidavit, despite the objection of Rol-Land’s counsel to its reception (Transcript, Evans cross-examination at p. 121).

[58] Rol-Land and Mr. Vanderpol submitted that the Ontario Labour Relations Board has construed its legislation as granting it jurisdiction to find that an individual has breached the LRA (C.J.A., Local 1030 v. Nepean Roof Truss Ltd., [1988] O.LR.B. Rep. 61). However, in the Nepean case, the Board made it clear that it could find an individual officer or owner of a corporate respondent liable for a breach of the Act “where it is so pleaded and is borne out by the facts (having regard to the sections claimed to have been breached)” (para. 26). In the complaint before the Tribunal, it is not pleaded that Ms. Harold breached the AEPA by her conduct.

[59] Principles of administrative law have long held that a person can be made a party to a proceeding only if he or she has a direct or substantial interest in the outcome of the case (Re Hoogendoorn and Greening Metal Products & Screening Equipment (1967), 1967 20 (SCC), 65 D.L.R. (2d) 641 (S.C.C.)). In this case, the record shows that Ms. Harold does not have a direct or substantial interest in the outcome of the complaint.

[60] Therefore, the Tribunal erred in law and exceeded its jurisdiction by adding Ms. Harold as a party respondent. In reaching its decision, it failed to properly assess the content of the complaint, and it failed to consider relevant and cogent evidence.

[61] Even if the standard of review were reasonableness or even patent unreasonableness, this decision could not stand, given the failure of the Tribunal to consider the evidence and the lack of allegations of wrongdoing against Ms. Harold personally in the complaint. Therefore, the decisions to grant her party status are set aside.

Should the Tribunal’s proceedings be quashed due to a reasonable apprehension of bias?

[62] The test for reasonable apprehension of bias adopted by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), supra has been reaffirmed in a number of cases, including R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at para. 111:

[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 …. [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude…”

The Court has also emphasized that the threshold for finding a reasonable apprehension of bias is high and requires the party alleging bias to show a “real likelihood of probability of bias” (at para. 112).

[63] The applicants submit that there is a reasonable apprehension of bias on the part of the Tribunal, because counsel retained by the Tribunal was a senior lawyer with the Ministry of the Attorney General, because of the role she played, and because of the role of the Tribunal in this application for judicial review, including its stance on the merits of the application and the issuance of the October 5, 2007 Statement. These arguments are set out in more detail below.

[64] First, the applicants allege that there is a reasonable apprehension of bias because Ms. McIntosh, counsel to the Tribunal until she recused herself on June 28, 2007, is employed by the Ministry of the Attorney General. The apprehension of bias is said to arise because the Attorney General has been adverse in interest to the Union in the constitutional challenges mentioned earlier in these reasons. According to the applicants, through Ms. McIntosh’s employment with the Ministry, there is an appearance that she is biased, and this, in turn, is said to taint the Tribunal. In the applicants’ submission, counsel is likely to have particular influence over this Tribunal, given its lack of experience and expertise in labour relations matters.

[65] In addition, the Union submits that the Tribunal was not even-handed in the way it treated the parties, having refused an adjournment to Union counsel and having granted an extension of time to employer’s counsel. As well, the Tribunal has not revealed the advice given by its counsel, even though she caucused with the members.

[66] I accept the Attorney General’s submission that the argument of bias based on counsel’s participation is moot. Ms. McIntosh has recused herself, and the Tribunal has now retained counsel from a private law firm. It is not necessary to decide whether Ms. McIntosh’s participation justifiably raised a concern about past decisions by the Tribunal, as the decisions on party status, made at the time she was counsel, have been set aside in this decision. In future steps of the proceeding, there is a presumption that the Tribunal members will act impartially (Omineca Enterprises Ltd. v. British Columbia (Minister of Forests), [1993] B.C.J. No. 2337 (C.A.) at para. 26)

[67] In any event, I find that the Union applicants have waived any argument of bias based on Ms. McIntosh’s participation, as they raised no objection to her role before the Tribunal (Canada ( Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892 at 942; Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (C.A.) at paras. 98-99). Union counsel Mr. Evans agreed in cross-examination that he was aware of her participation from November 6, 2006, when she was copied on a communication. In a November 14, 2006 fax to the parties from the Tribunal stating that it had received legal advice, Ms. McIntosh was identified as counsel. During a pre-hearing conference on November 27, 2006, Ms. McIntosh retired with the Tribunal members. Moreover, she also attended the hearing on March 27, 2007. No objection was made to her participation prior to this judicial review proceeding. In the circumstances, the Union clearly waived any claim of bias.

[68] Ms. Harold is not in the same position as the Union with respect to waiver, as she was not given notice about the party status issue until April, 2007, and she was not definitively added as a party until the reasons released May 10, 2007. However, I need not deal with her argument of reasonable apprehension of bias relating to Ms. McIntosh, which was made in the alternative, should she fail on the party status issue (Factum, para. 9).

[69] The applicants also submitted in their facta that there was a reasonable apprehension of bias because of the structure of the Tribunal. They pointed out that the Tribunal does not have the tripartite structure of many labour relations adjudicative boards, with representatives of management and labour, as well as a neutral chair. In fact, there appears to be a member with experience with farm employer organizations, but there are no members who represent the interests of agricultural employees.

[70] Again, the expertise and the composition of the Tribunal were known by the Union at the time of the complaint. No objection was raised. Given the failure to object, the Union must be taken to have waived any objection to the composition of the Tribunal.

[71] The applicants also relied on other actions of the Tribunal which they said cumulatively gave rise to a reasonable apprehension of bias, as in Baker v. Law Society of Upper Canada (1999), 1999 19935 (ON SC), 42 O.R. (3d) 413 (Div. Ct.) at para. 6. For example, the Tribunal sent copies of the notice of pre-hearing conference to various political and legal staff in the Ministry of Agriculture, including the office of the Minister, and its procedural rulings were said to be uneven between the two sides. Moreover, it has taken a stand on the issue of bias in its factum and its October Statement.

[72] While the sending of the Notices of Hearing to political staff raises a question of appropriateness, in my view, the actions of the Tribunal do not give rise to a reasonable apprehension of bias, even when considered cumulatively. The procedural rulings have gone in favour and against both parties. In my view, the applicants have failed to show that a reasonable and right-minded person, informed of the facts, would be satisfied that the Tribunal, consciously or subconsciously, would likely fail to decide the matters before it fairly.

Natural Justice

[73] The applicants also submit that there was a denial of natural justice because Ms. McIntosh “caucused” with the Tribunal, and they were not informed of her discussions with the members. They submit that the failure to disclose the legal advice provided is a breach of natural justice (Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing at 12:4350).

[74] I need not address the merits of this argument. Again, counsel for the Union was aware that counsel was meeting with the members. No objection was raised at the time. Therefore, having failed to raise its concern in a timely manner, the Union has waived its objection, in my view.

The Standing of the Tribunal

[75] The applicants raised the issue of the standing of the Tribunal in these applications for judicial review, submitting that it has a very limited role to play.

[76] A court has discretion whether to grant standing to a Tribunal when its decision is challenged. In exercising that discretion, the Court balances two important considerations: the need for the Tribunal’s participation, so that there can be a full understanding of the issues before the court, and the importance of maintaining the tribunal’s impartiality (Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) (2005), 2005 11786 (ON CA), 75 O.R. (3d) 309 (C.A.) at para. 43).

[77] The case law shows that a tribunal is given a broader scope for standing when the challenge is systemic or structural in nature, and the tribunal is likely to receive a more restricted standing when it is alleged that an individual has been unfairly treated (Children’s Lawyer, supra, at para. 40; Laverne A. Jacobs and Thomas S. Kuttner, “Discovering What Tribunals Do: Tribunal Standing Before the Courts” (2002), 81 Can. Bar Rev. 616 at 629).

[78] In these applications, the Tribunal moved to quash the applications for judicial review on grounds of prematurity. In its factum, it took a position on the merits of the decision on party status, as well as the allegation of reasonable apprehension of bias.

[79] This is not a case like Goodis, where the Tribunal’s participation is necessary to assist the Court. Here, counsel for the employer appeared and responded to the applications, and counsel for the Attorney General appeared as well on the issues of mootness, prematurity and reasonable apprehension of bias.

[80] The Tribunal submitted that it should be heard on the bias issue because the applicants’ attack was structural in nature. In my view, the attack by the applicants was not structural, at least as framed in oral argument. Rather, it turned on the facts of this case – specifically, the past and ongoing litigation between the Union and the government, in which the Attorney General is both a party and provides counsel, as well as the particular actions of the Tribunal.

[81] However, in their facta, the applicants also made reference to the structure of the Tribunal, raising the issue of an apprehension of bias because the Tribunal does not have members with both management and employee-side experience in labour relations. In my view, it was appropriate for the Tribunal to make submissions on this aspect of the bias allegations.

[82] Otherwise, the Tribunal’s participation is appropriately limited to the standard of review and a description of the legislative scheme. It is not appropriate to grant standing to the Tribunal or to consider the arguments in its factum on the merits of the decision about party status, nor the allegation of reasonable apprehension of bias, to the extent that the allegations are factual in nature. In intervening on these issues, the Tribunal inappropriately descended into the arena, making detailed submissions to justify its conduct.

Conclusion

[83] The applications for judicial review are granted in part. The decisions of the Tribunal ordering that Ms. Harold be a party are set aside. The balance of the applications is dismissed.

[84] If the parties cannot agree on costs, they may make brief written submissions, through the Divisional Court Office, within 30 days of the release of this decision.

Swinton J.

Leitch R.S.J.

Greer J.

Released: February 22, 2008

COURT FILE NOS.: 262/07 AND 266/07

DATE: 20080222

B E T W E E N:

UFCW CANADA/UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, SARY KEO, BAN LENG, PHEAP MUTH and RITH CHOR

Applicants

• and -

ROL-LAND FARMS LIMITED, HANK VANDERPOL and AGRICULTURAL, FOOD AND RURAL AFFAIRS TRIBUNAL

Respondents

AND BETWEEN:

DIANE HAROLD

Applicant

• and -

ROL-LAND FARMS LIMITED, HANK VANDERPOL and AGRICULTURAL, FOOD AND RURAL AFFAIRS TRIBUNAL

Respondents

REASONS FOR DECISION

Swinton J.

Released: February 22, 2008