Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2006 ONFSCDRS 79

FSCO A04-001619

BETWEEN:

RAFFAELE GUGLIELMO

Applicant

and

ING INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION

Before:

David Muir

Heard:

April 19, 2006, at the offices of the Financial Services Commission of Ontario in Toronto.

Written submissions were received on April 5, 2006 and April 13, 2006.

Appearances:

Barry Munro for Mr. Guglielmo

Marla Cox for ING Insurance Company of Canada

Issues:

The Applicant, Raffaele Guglielmo, was injured in a motor vehicle accident on June 17, 1999. He applied for statutory accident benefits from ING Insurance Company of Canada ("ING"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Guglielmo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Although initially framed as a preliminary issue the concern of Mr. Guglielmo is not truly preliminary to the merits of the dispute between the parties. Mr. Guglielmo seeks an order removing counsel for ING from the record because her appearance before an arbitrator at the Commission would violate the rules of fundamental justice which require that Mr. Guglielmo be afforded a hearing before a tribunal that is not only impartial and independent, but also has the appearance of impartiality and independence.

The issue in dispute is:

Is Mr. Guglielmo entitled to an Order barring Ms Catherine Skinner from representing ING at the arbitration hearing scheduled to commence in December 2006?

Result:

Mr. Guglielmo is not entitled to the Order sought.

EVIDENCE AND ANALYSIS:

No evidence was lead in this Motion. The few facts that are alleged are not controversial - most arise from the record of this proceeding - and do not require formal proof.

Ms Catherine Skinner was an employee of the Crown in Right of Ontario as an arbitrator at the Financial Services Commission of Ontario (the Commission) until June 18, 2004. Mr. Guglielmo's application for arbitration was registered at the Commission on August 4, 2004 and the pre-hearing took place on September 28, 2005. The issue before me was raised at the pre-hearing but was not dealt with at that time. The pre-hearing continued to its conclusion and amongst other things accomplished, dates were selected for this hearing. As well dates in December 2006 were reserved for a hearing on the substance of Mr. Guglielmo's claims. Mr. Guglielmo submits that ING should not be entitled to elect Ms. Skinner as its counsel because to do so would offend the principles of fundamental justice which require that an insured be afforded a hearing by a decision maker who is not only impartial and independent but also appears to be impartial and independent. It was submitted that Ms Skinner's past employment as an arbitrator raised a reasonable apprehension of bias on the part of the hearing arbitrator and as such would undermine public confidence in the administration of justice.

Mr. Guglielmo submitted that the Commission has no policy respecting the appearance of former arbitrators as counsel in its proceedings. It was submitted that the absence of a Commission policy on the issue exacerbates the concerns underlying the Motion.

In written submissions Mr. Guglielmo stated that judges, upon retiring from the bench, are prevented from returning to private practice and appearing before the courts. The position of arbitrator is analogous to that of a judge and accordingly arbitrators should be bound to the same rules as apply to a judge. At the hearing in responding to a challenge to this assertion it was submitted that an arbitrator at the Commission should be subject to a higher standard because while judges are held in high esteem in our legal world, public servants are seen in a somewhat different light.

ING made a number of submissions in response.

ING stated that pursuant to Rule 9.9 of the Dispute Resolution Practice Code (4th ed.) and the similar provisions of section 23 of the Statutory Powers Procedure Act, R.S.O. 1990 Chap. S. 22, an arbitrator at the Commission has no jurisdiction to grant the order sought.

ING also took issue with the assertion by Mr. Guglielmo that judges are prevented forever from returning to practice and appearing before the courts. On the other hand ING submitted that Rule 6.08(4) of the Rules of Professional Conduct do provide that a retiring judge is precluded from appearing before the court on which she or he sat for a period of two years. It was submitted that at most, the two year rule which the Rules of Professional Conduct impose would be appropriate for a former arbitrator seeking to appear again at the Commission.

ING also pointed out that Section 93 of the Model Code of Professional and Ethical Responsibilities for Members of Adjudicative Tribunals (SOAR Model Code) provides that an adjudicator is "prohibited from appearing before a tribunal until 6 months after ceasing to be a member of the tribunal". It was noted that while this Code was not binding, it did provide another benchmark that could be applied to these circumstances.

It was agreed that there appeared to be no cases dealing directly with the circumstances of a retired adjudicator appearing before a tribunal they were formerly a member of. ING submitted that given the movement back and forth between bar and adjudication, an inference might be drawn from the lack of any litigation around this question.

ING further submitted that based on the jurisprudence on reasonable apprehension of bias there was simply no case to respond to in these circumstances given the passage of time since Ms Skinner's departure from the Commission .

As noted above ING took the position that there were no circumstances that would allow an arbitrator to order the removal of counsel. As I indicated at the hearing I thought that this was an over statement of the law and notwithstanding the clear language of the Code and the Statutory Powers Procedure Act, I would not want to entirely preclude the possibility in the appropriate circumstances. However it is clear that the facts here fall far short of justifying such an order.

The question raised by Mr. Guglielmo's Motion is whether the right to have his arbitration heard by an impartial decision maker will be compromised by the fact that counsel for ING was once employed as an arbitrator here at the Commission? To put it another way, does Mr. Guglielmo have a reasonable apprehension that the arbitrator who presides over the hearing in December 2006 will be unable to impartially determine the issues between the parties, because counsel for ING was employed as an arbitrator until two and a half years prior to the hearing?

The test for whether a reasonable apprehension of bias exists has been formulated in a number of ways, however a classic statement adopted by both parties is found in the Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:²

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

... The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience."

There are a number of problems with Mr. Guglielmo's argument.

Firstly, there appears to be no basis for the submission that a retired judge is forever precluded from appearing before the court he or she was once a member of. On the contrary, as noted above and below judges are precluded from appearing at bar for a period of two years after retiring from the bench.

The real issue is whether there is a reasonable apprehension that an arbitrator will be unable to fairly and impartially deal with this matter because Ms Skinner was once employed as an arbitrator at the Commission. I note at this point it might have been argued that this Motion is pre-mature and better left to the, as yet to be identified, hearing arbitrator, or alternatively that it should have been raised at the pre-hearing and dealt with prior to the matter proceeding further. While either position is arguable, the parties have framed the issue as they have and I will deal with it on that basis.

As indicated the facts relied on by Mr. Guglielmo are limited, essentially, to the fact that Ms. Skinner was employed at the Commission as an arbitrator, as well as the fact that the Commission has no policy on the question arising here. I find that there are other surrounding circumstances that are relevant.

Ms Skinner left the Commission before the application for arbitration was filed. As a result she can have had absolutely no involvement with the file as an employee of the Commission. By the time the hearing is held, should it proceed as scheduled, it will have been approximately two and a half years since her departure.

The central question raised by this Motion is whether a mere prior professional association of counsel for one of the parties with the Commission is sufficient to give rise to a reasonable apprehension of bias. To my mind it is clear that a prior professional association can support an allegation of a reasonable apprehension of bias.³ Another factor that would likely be considered would be the existence or not of a personal association, concomitant, with the professional relationship.

However in the absence of anything more than the fact of prior professional association, the passage of time since the end of that association becomes critical. In Wewaykun Indian Band v. Canada, the court quoted with approval the opinion of the English Court of Appeal in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451:

... every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

The passage of time has practical consequences, one of which will be that many of the potential arbitrators appointed to preside at the hearing will have only joined the Commission after Ms Skinner's departure⁴. Accordingly it is entirely possible that there will not even be a personal component of the prior professional association between the hearing arbitrator and counsel. Would it be reasonable to fear that an arbitrator who never worked with Ms. Skinner and may only be dimly aware that she was employed at the Commission, would be unable to properly discharge her or his responsibilities at the arbitration hearing? I think that the answer to that question is no it would not be reasonable.

As for the submission that the absence of a policy at the Commission supports a reasonable apprehension of bias, while I agree there ought to be such a policy, I do not find that its absence is sufficient to carry the day in all these circumstances.

It is clear that there is no absolute bar imposed by statute or otherwise by the law, on former adjudicators ever appearing before the institution they were once part of. The question becomes what period of time should pass before a former arbitrator can appear as a representative in an arbitration proceeding at the Commission. I asked the parties for any insight they might offer on the temporal limitations for judges in the Rules of Professional Conduct (two years) and the six month waiting period provided for in Hospital Labour Disputes Arbitration Act, R.S.O. 1990, C.H.14; the Colleges Collective Bargaining Act, R.S.O. 1990, C. c.15. and the SOAR Model Code.⁵ None was offered, but Mr. Guglielmo submitted, as indicated above, that an even higher standard than that required of judges ought to be required when considering a former civil servant, such as an arbitrator. I note in this regard that in a case provided by ING, an allegation of reasonable apprehension of bias based upon a prior professional association was rejected where a year had passed since the ending of the relationship with the former law firm and client.⁶

Without determining the appropriate minimum legal standard, I do not see any basis for concluding that a longer period of time ought to be required when it is a former arbitrator rather than a retired judge. In particular I reject the submission that because the hearing arbitrator will be a civil servant, a longer period should be required.

While judges are required to have been lawyers prior to their appointments, as a matter of fact, all arbitrators employed by the Commission are legally trained. As noted by the Divisional Court in Marques, supra, as trained lawyers "being conscious of the necessity of ridding their minds of extraneous matters, it is not unreasonable to assume, that they, in exercising their jurisdiction, will act in good faith."

I also see no basis for demanding a higher standard of a former arbitrator than was required of an Ontario Labour Relations Board Vice-Chair in the Marques case, or arbitrators under the Colleges Collective Bargaining Act, or the Hospital Labour Disputes Arbitrations Act.

The hearing on the merits of this matter, if it proceeds as scheduled in December 2006, will take place approximately 2 and a half years after Ms Skinner left the employ of the Commission. In the absence of any other factor supporting a reasonable apprehension of bias, I find that the passage of time between the former arbitrator's departure from the Commission til the hearing is adequate to alleviate any reasonable concerns that the requirements of fundamental justice will not be met.

Accordingly I find that Mr. Guglielmo has failed to establish that these circumstances give rise to a reasonable apprehension of bias. The Motion is dismissed.

EXPENSES:

The parties made no submissions respecting expenses. I leave the issue to the hearing arbitrator to determine at the conclusion of this proceeding.

May 18, 2006

David Muir Arbitrator

Date