CITATION: PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857

DIVISIONAL COURT FILE NO.: 565/13

DATE: 20150210

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, C. Horkins and D. Brown JJ.

BETWEEN:

PowerServe Inc.

Applicant

– and –

The Ontario College of Trades and IBEW Construction Council of Ontario

Respondents

M. Gottlieb and C. Muir, for the Applicant

C. Paliare, for the Respondent, The Ontario College of Trades

R. Lebi, for the Respondent, IBEW Construction Council of Ontario

HEARD at Toronto: December 10, 2014

D. Brown J.

I. Nature of Proceeding

1The Ontario College of Trades (the “College”), pursuant to section 21(5) of the Courts of Justice Act, moves to set aside or vary the order of Matlow J. made June 24, 2014, as a single judge of the Divisional Court, refusing to quash a summons to witness issued by the Applicant, PowerServe Inc. (“PowerServe”), to Mr. Bernard Fishbein, Chair of the Ontario Labour Relations Board and the Chair of the College’s Electrician Ratio Review Panel. The College asks this court to quash the summons to witness.

II. Background Events

2PowerServe provides electrical services to home and business owners in the Windsor and Kitchener areas. The company must adhere to electrician ratios set by the College dealing with the number of electrician journeypersons to electrician apprentices.

3The College struck a three-person panel to conduct a ratio review of electrician trades. The Electrician Review Panel was to inquire into and make recommendations about the appropriate ratio between journeyperson electricians and apprentice electricians. Pursuant to its statutory mandate under section 21 of the Ontario College of Trades and Apprenticeship Act, 2009 (the “Act”)¹, in December, 2012, the College appointed the members of the Electrician Review Panel from its roster of adjudicators. The Act provides that those appointed to the roster of adjudicators “shall be capable of, and shall act, in a neutral and impartial manner”.²

4The College appointed as Chair of the Electrician Review Panel Mr. Bernard Fishbein, the Chair of the Ontario Labour Relations Board (the “OLRB”). Prior to his appointment to the OLRB in February, 2011, Mr. Fishbein had been a long-time partner with the law firm Koskie Minsky, representing unions in labour matters. During his work at Koskie Minsky, Mr. Fishbein had represented the respondent, the IBEW Construction Counsel of Ontario (“IBEW”), and one its locals, IBEW, Local 353, in over 60 reported cases before the OLRB.

5The Electrician Review Panel invited affected persons to make submissions to them on the Electrician Ratio Review. Just under 300 parties made written submissions to the Panel, including PowerServe and Mr. Fishbein’s former client, IBEW, Local 353. Following the receipt of written submissions, the Panel entertained oral submissions from a number of interested parties, including PowerServe, IBEW, Local 353 and IBEW.

6On July 2, 2013, the Panel released its decision in the Electrician Ratio Review. The ratio adopted by the Panel was not that argued for by PowerServe, but was very close to that advanced by IBEW.

7By letter dated November 15, 2013, PowerServe’s counsel wrote to the Chair of the College expressing concern about the process by which the Panel had reached its recommended ratio. The letter stated:

Specifically, we are concerned that the “neutral” Chairperson appointed to chair the review panel was, in fact, in a conflict of interest throughout the review process, and that there is a reasonable apprehension of bias with respect to his participation and decision- making in the review process.

Please advise immediately as to whether the Board will agree not to proceed with the recommendation, pending our application [for judicial review] or our meeting with the Board.

8On December 6, 2013, counsel for the College replied:

If you are going to proceed with an application for judicial review of the Review Panel’s decision, we will accept service. In the meantime, I have advised our client that there is no need to adhere to your suggestion that they take no steps with respect to the determination made by the Panel.

9As a result, on December 19, 2013, PowerServe commenced this application for judicial review against the College seeking an order quashing the July 2, 2013 recommendation of the Review Panel, prohibiting the College from prescribing the recommended ratio, and directing the Review Panel to be reconvened and reconstituted. PowerServe advanced a single ground for its application for judicial review:

The Chairperson of the Review Panel, appointed by the Board of the College, is a former labour lawyer with an extensive professional relationship with the IBEW, spanning over 20 years. He did not, at any time throughout the Electrician Ratio Review, disclose this relationship. In failing to disclose the conflict created by his extensive ties to the IBEW, the Chairperson failed to act impartially and neutrally, as required by the Act and the by-laws of the College. His conduct raises a reasonable apprehension of bias. The decision of the Review Panel in the Electrician Ratio Review should, accordingly, be quashed.

10On April 16, 2014, counsel for PowerServe sent the College’s counsel a summons to witness under Rule 39.03 of the Rules of Civil Procedure which required Mr. Fishbein to attend for examination as a witness prior to the hearing of the application for judicial review. In addition to the attendance of Mr. Fishbein, the summons sought “any documents, including correspondence, notes, memoranda, contracts, records and copies of same in your custody, possession or power, in any way relating to the matters which are within the scope of this proceeding or have any reference thereto.”

11On April 16 counsel for the College advised PowerServe’s counsel that there were restrictions on the compellability of decision-makers:

The summons as it is currently drafted is far too broad and open-ended. In order to consider our client’s position on the summons, please provide us with details of the scope of the intended examination.

12PowerServe’s counsel responded that he intended to examine “on issues relevant to the facts regarding bias”, but did not intend to examine regarding the decision-making process, including how the panel arrived at its recommendation. That elicited an April 17 response from the College’s counsel which stated:

Given the presumption of impartiality, we are of the view that there is an insufficient evidentiary basis for the summons, and that it is based on mere speculation. As such, my client intends to move to quash the summons.

III. Decision Sought to be Set Aside

13The motion to quash came on before the motion judge who, in a brief June 24, 2014 endorsement, dismissed the motion, writing:

I am not persuaded that the summons to witness is an abuse of process or reflects an effort to obtain evidence that would not be relevant or that, for any other reason, it should be set aside.

However, I order that the summons the limited to permit the examiner to examine only on the subjects set out in paragraph 61 of the PowerServe factum…

Paragraph 2 of the formal order of the motion judge stated:

THIS COURT FURTHER ORDERS THAT the summons to witness served on Bernard Fishbein, issued April 16, 2014, is restricted to examination of Mr. Fishbein by the applicant on the extent of Mr. Fishbein’s relationship with the International Brotherhood of Electrical Workers (“IBEW”) over the course of time that Mr. Fishbein represented the IBEW at Koskie Minsky, as well as his relationship with the IBEW from the date he was appointed to the Ontario Labour Relations Board.

14The College moves before this panel of the Divisional Court to set aside or vary that order.

IV. The governing legal principles

A. Motion to quash a Rule 39.03 summons: general principles

15A comprehensive summary of the principles governing a motion to quash a summons to witness issued under Rule 39.03 can be found in the decision of Perell J. in Elmaati v. Canada (Attorney General):

The case law establishes that where a party serves a summons to examine a witness for a pending motion or application, an opposing party may move to quash the summons for the examination of the witness on the ground that the evidence sought is not relevant to the application or motion or that the examination or the underlying proceeding would amount to an abuse of process…

If the summons to the witness is challenged, the party seeking the examination should be prepared to show that the evidence is relevant to the pending application or motion and that the party to be examined is in a position to provide the evidence…

If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, then the summons is regarded as a fishing expedition and an abuse of process…Similarly, if the examination is being used for an ulterior or improper purpose, or if the process is itself an abuse, it will be set aside on that ground…

An examination is improper if the purpose of the examination is to prematurely inquire into a party's defences or otherwise commence the discovery process…

In considering whether to strike a summons to a witness, the court will consider the nature and grounds for the application to determine what are the issues for which the examination is in aid…

Once the party seeking to conduct the examination shows that the proposed examination is about an issue relevant to the pending application and that the party to be examined is in a position to offer possibly relevant evidence, it is not necessary for the party to go further and show that the proposed examination will provide evidence helpful to that party’s cause…

If the evidence would be possibly relevant to the issues, the burden is on the party challenging the summons to show that the examination or the underlying application is an abuse of process…

In considering whether to quash a summons, the court may consider the merits of the underlying proceeding…³

Courts are prepared to impose conditions on the scope of the examination sought under Rule 39.03 so that the questioning remains confined to relevant issues.⁴

B. Rule 39.03 examinations on judicial review applications

16The leading statement about the availability of Rule 39.03 examinations in the context of judicial review applications remains the decision of the Court of Appeal in Payne v. Ontario (Human Rights Commission) where that court summarized the applicable principles as follows:

I would summarize the effect of these authorities and considerations in the following manner. There is a prima facie right to resort to a Rule 39.03 examination in relation to an application for judicial review and there is no onus on the party seeking the examination to prove any facts as a precondition. However, as there is no general right to discovery on a judicial review application, the party serving a notice of examination may be required to specify the scope of the proposed examination. The matters intended to be covered in the examination must be relevant to a ground that would justify judicial review. The evidence must not be excluded by statute. The proposed examination will not be allowed where it is being used for some improper purpose or where the examination or the application for judicial review would constitute an abuse of the process of the court. Where it is proposed to examine a tribunal member or senior tribunal official privy to the decision-making process, the right to conduct the examination must be balanced with the principle of deliberative secrecy. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed.⁵

17In Payne the majority of the Court of Appeal dealt at some length with the factual foundation a party must lay down to support a Rule 39.03 summons on an application for judicial review:

A difficult and delicate issue is the nature of the factual threshold a party must satisfy to conduct a Rule 39.03 examination in support of an application for judicial review. I do not accept the argument advanced by the Commission that it is necessary in all cases to establish a "reasonable evidential foundation". Nor do I agree with my colleague Abella J.A.'s conclusion that there is a "heavy onus" or that the party seeking an examination must provide "reasonable, reliable, relevant evidence" to meet the "high threshold". In my view, language of this kind is not apt for a variety of reasons… [A]n applicant for judicial review should not have to prove his or her case before securing access to the very process designed by the Rules of Civil Procedure to adduce evidence. It is also my view that to pitch the test so high in a case such as the present one would be inimical to the inherent power of judicial review and the importance of having a full and accurate record of what transpired before the decision-maker. To fulfil their constitutionally protected mandate of ensuring that statutory procedures are followed in a manner that accords with the principles of natural justice, the superior courts must afford litigants adequate procedures to ensure that all relevant facts are presented. Accordingly, it is sufficient if the proposed examination is focussed on facts relevant to an issue properly raised by way of judicial review…

[I]t seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision-maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed.⁶

The Court of Appeal in Payne upheld a summons directed to the Registrar of the Ontario Human Rights Commission which sought disclosure of the facts which were before the Commissioners when they decided not to refer the applicant’s complaint to a board of inquiry.

18On the motion before us the parties referred to several decisions which pre-dated Payne. Two, in particular, merit comment. In Bettes v. Boeing Canada, De Havilland Division,⁷ the motion judge quashed a summons to witness issued to a member of the Ontario Labour Relations Board whom a judicial review applicant was alleging had tampered indirectly with a witness in a proceeding before a panel of which he was a member. The principle applied by the motion judge of the need to establish a prima facie case in order to support the summons was rejected by the Court of Appeal in Payne.

19In Agnew v. Ontario Association of Architects⁸ a single judge of this court quashed several summons issued under Rule 39.03 which sought to examine the members of a board of the Ontario Association of Architects about the material they had reviewed in reaching their decision. the motion judge held that tribunal members were not compellable about their decision-making process

V. Analysis

The approach to reviewing the decision of the motions judge

20The reasons of the motion judge were very brief. As they provide little insight into how he balanced the factors described in Payne to reach his decision, in the circumstances of this case it is appropriate to consider the matter afresh on the merits, following the approach set down by the Court of Appeal in Overseas Missionary Fellowship v. 578369 Ontario Ltd. that the use of the term “set aside or vary” in CJA s. 21(5) is intended to give a panel of the Divisional Court all of the powers of the single judge with respect to the proper disposition of the motion.⁹

The scope of review and relevance

21As the Court of Appeal held in Payne, the party serving a Rule 39.03 notice of examination must specify the scope of the proposed examination. As well, the matters it intends to cover must be relevant to a ground that would justify judicial review.

22PowerServe’s notice of application identified, as the sole ground upon which its application for judicial review rested, a reasonable apprehension of bias of Mr. Fishbein by virtue of his prior retainers with the IBEW. In Summitt Energy Management Inc. v. Ontario (Energy Board),¹⁰ Perell J. summarized the governing principles on the issue of reasonable apprehension of bias:

The legal test for a reasonable apprehension of bias was set out by de Grandpré J., in his dissenting judgment in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, and the test was approved and adopted by the Supreme Court of Canada in R. v. Valente, [1985] 1 S.C.R. 673 and in R. v. S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484. The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly.

The test for a reasonable apprehension of bias has two elements of objectivity: (1) the measure is that of the reasonable and informed person; and (2) his or her apprehension of bias must be reasonable: R. v. S. (R.D.), supra; Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369. The determination of whether there is a reasonable apprehension of bias is an objective, fact-specific inquiry in relation to the facts and circumstances of a particular trial: Chippewas of Mnjikaning First Nation v. Ontario (Minister Responsible for Native Affairs), 2010 ONCA 47 at para. 230.¹¹

23In Terceira v. Labourers International Union of North America,¹² the Court of Appeal considered the issue of reasonable apprehension of bias in the context of a request that a Vice-Chair of the Ontario Labour Relations Board recuse himself from a hearing because some seven years before the hearing he had acted for one of the parties against the other. In applying the reasonable apprehension of bias test to address an adjudicator’s prior professional relationships, the Court of Appeal recalled that the jurisprudence contains a strong presumption of judicial or adjudicative impartiality and integrity.¹³ As well, some administrative tribunals, such as the OLRB, select their adjudicators by drawing upon the expertise of practitioners from within the labour and employment bar, a practical reality which would be defeated by a presumption of disqualification because of prior professional relationships.¹⁴ Finally, the Court of Appeal emphasized that an inquiry into an allegation of apprehension of bias by an adjudicator is highly fact-specific, to be evaluated on an objective standard.¹⁵

24In his affidavit supporting the application for judicial review, Mr. Keith McIntyre, a principal of PowerServe, articulated the company’s concern about Mr. Fishbein’s involvement in the Electrician Review Panel consultation process:

Had I known of Mr. Fishbein’s relationship with the IBEW, I would have considered the whole process unfair and weighted against non-union parties, and would have complained to the College or directly to the Electrician Review Panel. This is because the IBEW was the most influential union voice in the process, and the drastically different position the IBEW was advocating for when compared to non-union contractors such as PowerServe.

It was only after the Electrician Ratio Decision was released that I, and therefore PowerServe, became aware of the fact that Mr. Fishbein, and his former law firm, were so extensively tied to primary trade union making submissions in the electrician ratio review. I initially discovered this fact in discussions with other OEL members, which caused me to investigate the matter further. I simply do not understand how the College could appoint a long-standing lawyer of the IBEW to a Ratio Review in which the IBEW was the core union participant. Having learned of Mr. Fishbein’s relationship with the IBEW, I have lost confidence in the fairness of the Ratio Review process…

25In paragraph 61 of its factum on the motion below PowerServe described the issues upon which it was seeking to examine Mr. Fishbein:

PowerServe seeks to examine Mr. Fishbein on the issue of bias. Specifically, PowerServe seeks to examine on the extent of his relationship with the IBEW over the course of time that Mr. Fishbein represented the IBEW at Koskie Minsky, as well as his relationship with the IBEW from the date he was appointed to the OLRB. This is not a fishing expedition, or an examination in the nature of the general discovery. There is a reasonable evidentiary basis for the examination sought. These facts are at issue on this application, and are relevant and necessary for its resolution.

26In response to questions posed by the panel during the hearing before us, PowerServe’s counsel stated that his client wished to question Mr. Fishbein on three areas:

(i) First Area: What involvement, if any, Mr. Fishbein had with the IBEW on the issue of journeymen ratios prior to his appointment to the OLRB, the very issue before the Electrician Review Panel;

(ii) Second Area: The nature of the relationship between Mr. Fishbein and the IBEW following his appointment to the OLRB; and,

(iii) Third Area: Whether at the time of the Electrician Review Panel, Mr. Fishbein still had a financial interest in his former firm, Koskie Minsky.

None of these proposed areas of inquiry touch upon the decision-making process undertaken by the Electrician Review Panel and therefore do not raise the issue of tribunal deliberative secrecy. Nor does the Act contain any statutory exclusion which would preclude an examination of Mr. Fishbein.

27It is difficult to see the relevance of the proposed Third Area of questioning because any continuing relationship between Mr. Fishbein and his former firm did not form part of the allegation of reasonable apprehension of bias asserted by PowerServe in its notice of application or supporting affidavit.

28As to the Second Area, the evidence disclosed that Mr. Fishbein resigned from his firm in order to assume the duties of full-time Chair of the OLRB. It is reasonable to assume from the presumption of impartiality that in order to discharge his duties as the OLRB’s full-time chair, Mr. Fishbein severed his professional relationship with his former clients, including the IBEW. PowerServe, a company which operates within the construction industry, offered no evidence which suggested that industry members were aware of some continuing relationship between Mr. Fishbein and his former client. Accordingly, I regard the Second Area of proposed inquiry as nothing more than a fishing expedition.

29Turning to the First Area, PowerServe’s notice of application and supporting affidavit disclosed that it already possesses some evidence relevant to the test for reasonable apprehension of bias upon which it intends to rely at the hearing of the application, specifically:

(i) Mr. Fishbein, the Chair of the Review Panel, was appointed to the OLRB in February, 2011;

(ii) Mr. Fishbein was appointed Chair of the Review Panel in December, 2012;

(iii) Prior to his appointment to the OLRB, Mr. Fishbein had been a long time partner with the Koskie Minsky law firm;

(iv) Throughout his private-sector legal career, Mr. Fishbein had represented the IBEW CCO, IBEW 353 and other IBEW locals in over 60 reported proceedings dating as far back as 1989;

(v) Mr. Fishbein did not disclose this fact to the parties which participated in the Electrician Ratio Review process;

(vi) Koskie Minsky remains counsel of record for the IBEW to this day;

(vii) In the Review Panel proceeding the IBEW was advocating for a ratio which PowerServe described as “directly at odds with the majority of the submissions put forth”. According to PowerServe, at least 266 of the 295 written submissions made to the Electrician Review Panel advocated the reduction of the electrician ratio to a level quite different than that proposed by the IBEW and ultimately recommended by the Review Panel;

(viii) In a subsequent Review Panel convened by the College in December, 2013 to conduct a classification hearing for the sprinkler and fire protection trade, Mr. Fishbein, who had been appointed chair of that review panel, issued an interim decision in which he disclosed that while in practice at the Koskie Minsky firm he had represented a union local which was one of the parties participating in that consultation process.

None of that evidence, however, touches directly upon the issue of whether Mr. Fishbein, in his pre-OLRB retainers with the IBEW, advised that organization on the very subject-matter of the Electrician Review Panel – i.e. the electrician journeyperson to apprentice ratio.

30The case law discloses that concerns about whether an adjudicator previously had advised a party on the very subject-matter of the proceeding usually are addressed by a party raising the issue at the start of a hearing, sometimes by way of a formal request that the adjudicator recuse himself. For example, in the seminal case of Committee for Justice v. National Energy Board,¹⁶ the Chair of the National Energy Board was disqualified from serving on a hearing panel on the grounds of reasonable apprehension of bias by reason of his involvement, immediately prior to his appointment to the NEB, as president of a corporation which had participated in the study of the construction and operation of a natural gas project which was the subject-matter of the NEB hearing. Information about the Chair’s prior involvement with the corporation and the project study group came, in part, from a statement which the Chair had made about his involvement at the commencement of the Board hearing.

31Even when the issue of reasonable apprehension of bias is raised after the conclusion of a hearing, it is not unheard of for the adjudicator in question to make a statement about the extent, if any, of his prior professional relationship with a party. That is precisely what took place in Wewaykum Indian Band v. Canada.¹⁷ Justice Binnie had authored the Court’s unanimous decision in that case. Following the decision’s release, the unsuccessful party moved to set aside the decision on the basis that Justice Binnie, when previously employed as a senior official in the federal government, had given advice on the subject-matter of the dispute which had been litigated before the Supreme Court of Canada. Justice Binnie filed with the Court a statement describing the extent of his prior involvement and his recollection of the matter.

32In the present case Mr. Fishbein has not taken a similar path. Although the IBEW, in its affidavit in support of its motion to intervene as an added party on the judicial review application, deposed that it had “relevant information about that professional association [with Mr. Fishbein] that it should be permitted to file with the Court”, in the result it filed no such information, although given the opportunity to do so.

33Nevertheless, to permit PowerServe to examine Mr. Fishbein on the First Area inevitably would require him to disclose whether he had given legal advice to a former client on a particular subject-matter. Such communications with his client would be protected by solicitor-client privilege, which the IBEW has not waived.

34By way of summary, I conclude that the scope of the examination of Mr. Fishbein proposed by PowerServe does not support its resort to Rule 39.03 because its proposed areas of inquiry are either irrelevant, amount to a fishing-expedition or would require Mr. Fishbein to disclose communications protected by solicitor-client privilege.

VI. Summary

35For those reasons, I would allow the College’s motion and set aside the June 24, 2014 Order of the motion judge.

36On the issue of costs, at the end of the hearing counsel advised that they had agreed that costs of $10,000 should be awarded to the successful party on the motion before us, as well as $7,500 to the successful party in respect of the hearing before the motion judge. Accordingly,

PowerServe shall pay the College costs of $7,500 for the motion before the motion judge and costs of $10,000 for this motion.

___________________________ D. Brown J.

Sachs J.

C. Horkins J.

Released: February 10, 2015

CITATION: PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857

DIVISIONAL COURT FILE NO.: 565/13 DATE: 20150210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Horkins and D. Brown JJ.

BETWEEN:

PowerServe Inc.

Applicant

– and –

The Ontario College of Trades and IBEW Construction Council of Ontario

Respondents

Footnotes

1. 1S.O. 2009, c. 22.
2. 2Ibid., s. 21(5).
3. 32013 ONSC 3176, paras. 61 to 68, citations omitted.
4. 4Ibid., paras. 71 and 72.
5. 52000 5731 (ON CA), [2000] O.J. No. 2987 (C.A.), para. 177.
6. 6Ibid., paras. 170 and 172.
7. 7(1992), 1992 7789 (ON SC), 10 O.R. (3d) 768 (Gen. Div.)
8. 8(1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.)
9. 9Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 1990 6771 (ON CA), 73 O.R. (2d) 73 (C.A.). See also, Sobeys Inc. v. U.F.C.W., Local 1000A (1993), 1993 8659 (ON SC), 12 O.R. (3d) 157 (Div. Ct.), paras. 2 and 3.
10. 102012 ONSC 2753 (Div. Ct.), paras. 52 and 53.
11. 11Summitt Energy Management Inc. v. Ontario (Energy Board), 2012 ONSC 2753 (Div. Ct.), paras. 47 to 50, citations omitted.
12. 122014 ONCA 839
13. 13Ibid., paras. 26 and 27.
14. 14Ibid., para. 29.
15. 15Ibid., para. 30.
16. 161976 2 (SCC), [1978] 1 S.C.R. 369.
17. 172003 SCC 45, [2003] 2 S.C.R. 259