GSB# 2003-2386

UNION# 2003-0999-0027

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Union

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Andrew Lokan Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Lucy McSweeney Senior Counsel Management Board Secretariat

HEARING

December 20, 2004.

Decision

On September 30, 2003 the Union filed a policy grievance that alleged the Employer “is in violation of the collective agreement by the deduction of the CPP (Disability Benefit) COLA from LTIP benefits”. By way of remedy the Union asked that the Employer be ordered to cease this practice and to make whole all LTIP recipients “both current and former”. This decision addresses a motion raised by the Employer that I should withdraw from this case due to a reasonable apprehension of bias.

The following facts are relevant to an understanding of this matter. I have been a Vice Chair with the Grievance Settlement Board for more than a decade and have mediated and arbitrated many disputes for these parties. Additionally, I (along with Vice Chair Loretta Mikus) act as Co-Chair on the Joint Insurance Benefits Review Committee (JIBRC). In that capacity I hear and determine appeals from members of the bargaining unit whose claims for Long Term Income Protection benefits have been denied or discontinued.

The unique process for hearing these LTIP disputes was negotiated by the parties and has been in place for a number of years. The hearings usually require only one day of hearing and the litigation proceeds on the basis of the claimant’s medical file.

In 2004 the parties jointly agreed to have me hear and determine this grievance. With the agreement of the parties I attempted to resolve this matter through mediation. The matter was not resolved and accordingly, on November 19, 2004, we proceeded to hearing.

Opening statements disclosed that the parties have very differing views of the propriety of offsetting LTIP benefits with other pension of WSIB benefits. There was no dispute that, at one time the Employer took the position that inflationary adjustments would not be offset. However, in 1998 the Employer’s approach to this matter changed and it advised the Union accordingly. Ms. Nixon, for the Employer, stated at the November 19, 2004 hearing that the Employer was led to believe that the Union agreed to this change because no grievance was filed until September of 2003. Ms. Nixon briefly outlined the Employer’s view of this matter. First of all it was the Employer’s view that the language of the collective agreement is clear and supports its view. It was also the Employer’s view that the grievance is out of time. Furthermore, the Employer asserted that Union is estopped from succeeding in this matter because the matter was discussed at three JIBRC meetings in late 1998. Then, according to the minutes from December 15, 1998 until December 2000 OPSEU was “to review” the matter. Finally, on December 2000 the notation in the minutes states “remove from the table”. On that basis, the Employer’s position was that it assumed the matter was no longer an issue in dispute between the parties. Therefore it lost any opportunity that it might have had to deal with the issue in collective bargaining. Ms. Nixon suggested that the Employer relied upon the Union’s representations to its detriment and therefore the Union is estopped.

Mr. Lokan, for the Union suggested that the Employer has violated Article 42.2.2 of the collective agreement. Further, because members seeking LTIP were induced to apply for CPP and given certain representations that there would be no offset it would now be inequitable to allow the Employer to offset the COLA as it has done. Therefore, the Employer is estopped.

At the conclusion of the opening statements I spoke with counsel for the parties and advised that as a result of my work with the parties in the JIBRC process I had experience with the phrase “removed from the table”. I informed counsel that, in my experience, it might mean that a file was being withdrawn but it might also mean that the matter was moving to the appeal stage, that is, to be adjudicated. I also told counsel that at one of my earlier JIBRC hearings, there was specific discussion about the phrase “removed from the table” and the phrase was part of an argument raised in an evidentiary matter. Further, I indicated to counsel that it was my view that it was important for me to make the parties aware of this matter in order that they may address it in any way that they might see fit.

By agreement, the matter proceeded again to mediation for the remainder of November 19, 2004. Again those efforts were unsuccessful in resolving the matter and the day concluded with discussions about further disclosure issues. I was notified shortly after this day of hearing that the Employer intended to proceed with a motion that there is a reasonable apprehension of bias on my part and that I should therefore remove myself from the matter. The hearing reconvened on December 20, 2004 to deal with this preliminary matter.

Ms. McSweeney, for the Employer, submitted the estoppel aspect of its case is very important. Accordingly, it is proceeding with this motion for three reasons. The first is because the Employer heard me to indicate that it might not want me hearing this matter given my experience. Further, as a result of working with JIBRC I have a different understanding of the phrase “remove from the table”. Finally, the phrase “remove from the table” was raised in a matter that required a ruling.

Ms. McSweeney stated that the Employer was of the view that because I “flagged” this issue, there is a reasonable apprehension of bias. To be clear, it is not contended that I have an actual bias. Indeed, Ms. McSweeney said that the Employer is of the view that if I thought I was biased I would have withdrawn from the matter. However, if my disclosed comments were known at the time this matter was scheduled to proceed before me, the Employer would have asked another arbitrator to deal with the grievance. Given that view, I must find that there is a reasonable apprehension of bias. The Employer contended that because this dispute concerns the meaning of a specific representation, my familiarity with the parties in relation to the administration of benefits creates an apprehension of bias.

It was common ground that the appropriate test for this Board to consider is whether an informed bystander would have a reasonable apprehension of bias in these circumstances, in the Employer’s view. In this regard the Employer relied upon Re Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623; [1992] S.C.J. No 21; Re Committee For Justice and Liberty et al v. National Energy Board et al (March 11, 1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.); Re The Crown in Right of Ontario and OPSEU (Kowal) (1989), GSB#83/88 (Verity); Re Maple Leaf Meats Inc. v. The United Food and Commercial International Union, Local 175 (2000), 2000 CanLII 50152 (ON LA), 89 L.A.C. (4^th) 439 (Gordon); Re Ontario Hydro [1997], O.L.R.D. No. 3578 (O.L.R.B.) (Surdykowski); and Re Miracle Food Mart, Steinberg Inc. and UFCW (1991) 1990 CanLII 12824 (ON LA), 18 L.A.C. (4^th) 257 (Kennedy).

Mr. Lokan, for the Union submitted there are two reasons to dismiss this motion. The first is because in the labour relations context people are invited to hear and determine disputes precisely because of their backgrounds and areas of expertise. In the instant matter it was noted that I have knowledge of the parties, an understanding of the context for this dispute, experience with the collective agreement and the issues between the parties. That familiarity must be viewed positively, not as a reason to step down from this matter. In the Union’s view, the complete answer to the Employer’s concern is that evidence has yet to be called. The Employer has every opportunity to call evidence as to the meaning of the phrase “remove from the table”.

The Union relied upon excerpts from Judicial Review of Administrative Action in Canada by Brown and Evans. At page 11-54 “prior knowledge” is considered. It stated:

Generally speaking, the quality of a hearing is likely to be enhanced if the decision-maker has some general knowledge and understanding of the matters to be decided. And that is equally true of issues of law, and of matters of professional judgment and policy to be decided by administrative tribunals, many of which were created specifically to ensure that decisions were made by individuals with a specialized knowledge of the subject matter. Indeed, this point has been explicitly recognized in the context of human rights tribunals as follows:

Human rights inquiry boards are drawn from those who have some experience and understanding of human rights issues. To exclude everyone who [has] ever expressed a view on human rights issues would exclude those best qualified to adjudicate fairly and knowledgeably in a sensitive area of public policy.

Accordingly, since prior knowledge is not in itself a bad thing, the question in each case will be one of drawing a line between that which is appropriate, and that which could be said to lead to either prejudgment or to ex parte evidence-gathering. Or to put it in traditional doctrinal terms, it requires ascertaining the point at which prior knowledge gives rise to a reasonable apprehension of bias.

The Union submitted that it might be different if I had been an eyewitness to an event which is central to an issue being litigated before me. However, that is not the case. Here we have a phrase that is to be interpreted and there is nothing in my disclosure that would make it inappropriate for me to hear the evidence and determine what the phrase actually means in the context of this matter.

Mr. Lokan asserted that a review of the minutes of the various JIBRC meetings themselves reveal the very matter I disclosed. That is, that “remove from the table” has more than one meaning. Further, the Employer has consistently taken the position that the Union is estopped mainly because of its failure to take any action between December of 2000 and December 14, 2003. That fact has nothing to do with any words found in the JIBRC meeting minutes.

The Union contended that it is to be remembered that these parties agreed on more than one occasion that I would mediate this dispute. Mr. Lokan suggested it is quixotic that the Employer would now raise an issue of theoretical prejudice that might arise as the result of my exposure to certain terminology when it was content to put a negotiating position in front of me.

The Union also submitted that this motion might be a tactical move by the Employer to derail these proceedings and stall an answer to this important question. Indeed, real prejudice would be caused if the parties had to begin this process anew. This Board should not allow the motion out of an abundance of caution because labour relations harm could be done as a result.

The Union relied upon Re Centenary Health Centre and Ontario Public Service Employees Union (1996), 1996 CanLII 20451 (ON LA), 60 L.A.C. (4^th) 21 (Whittaker).

In reply Ms. McSweeney advised that this motion has not been made lightly. The Employer is faced with a consideration as to how to “dislodge” my understanding of the phrase “remove from the table” and it would be “better” for someone without any experience or understanding of the phrase at issue to hear this matter.

DECISION

At the outset I wish to note my rejection of the Union’s suggestion that this motion was put forward by the Employer in an effort to derail the litigation of this matter. There is simply no evidence of such motivation and I accept that the Employer raised this motion in good faith.

Much has been written on the issue of judicial bias. The Employer provided Leading Cases On Labour Arbitration, Volume 1, (Evidence and Procedure) (Toronto: Lancaster House, 2002) (Mitchnick and Etherington). Bias is reviewed therein beginning at page 1-7:

In the case of a neutral Chair of an arbitration board, or sole arbitrator, a reasonable apprehension of bias can arise in a variety of situations. In Camp Hill Medical Centre and N.S.N.U. (1995), 1995 CanLII 18414 (NS LA), 51 L.A.C. (4^th) 164, Arbitrator Sloane reviewed the caselaw on bias, and outlined the grounds for removal of an arbitrator as follows:

1. “demonstrated” bias, based on something done or said in the course of the proceedings.

2. Prior or present involvement in the same case.

3. An ongoing client relationship with one of the parties.

4. A family or other personal relationship with one of the participants.

5. Prior professional associations not separated by a “respectable period of time”.

The arbitrator emphasized that the mere discomfort of the objecting party is not a sufficient ground on which to disqualify an appointee. In each case, it is the “reasonableness” of the asserted apprehension which must be assessed.

Eric Sloane, Chair: -

In analyzing the cases, it is apparent that they fall into several distinct types.

Demonstrated Bias

A perception of bias may arise during the course of the very proceeding either as a result of comments made or, in some cases, improper ex parte communications with one side. In R. v. R.D.S., [1995] N.S.J. No. 444 (QL) (C.A.), which is the most recent case of the Nova Scotia courts on the subject, remarks by a Youth Court judge at the conclusion of trail were held to have shown a possible bias, and the trial judgment was accordingly tainted. On the facts there is a little similarity to the case here; however, some of the general comments are instructive. Speaking for the majority, Flinn J.A. at para. 25 adopted some of the dissenting reasons of de Grandpre J. in Committee for Justice and Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716, at pp. 735-36, [1978] 1 S.C.R. 369:

…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 [Federal] 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 it more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?”

I can see no real difference between the expression found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias”, or “real likelihood of bias”. 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 related to the “very sensitive or scrupulous conscience”.

Again, at para 27, Flinn J.A. adopted the words of Lord Dening M.R. in Metropolitan Properties Co. v. Lannon [1968] 3 All E.R. 304 (C.A.), who said:

Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough….There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other.

Prior or present involvement in the very issue

In the aforementioned case of Committee for Justice and Liberty v. Canada (National Energy Board), a member of the National Energy Board was held to be disqualified from sitting on a case concerning a proposed pipeline, because previous to his appointment to the Board he had been involved in a study group which drafted some of the terms of the applications to the Board. The majority of the Court held that a reasonably well-informed person would have a reasonable apprehension that he would give a biased appraisal and judgment on this issue. The case clearly turns on the fact that there was personal, prior involvement, however slight, on one side of the very issue directly before the member in his capacity as a member of the board.

Leading Cases also reviewed Re Tkachuk and British Columbia (Riverview Hospital) (1999), 53 Can. L.R.B.R. (2d) 298 (B.C.L.R.B.) In that decision the following was said:

The Board has reviewed the applicable test to be used when an allegation or apprehension of bias is raised. In Sean Parr, B.C.L.R.B. No. B211/96 (Leave for Reconsideration of B.C.L.R.B. No. B81/96), the Board summarized the applicable test and its approach to charges of bias:

The test for determining a reasonable apprehension of bias, as outlined by the Supreme Court of Canada in Committee for Justice and Liberty v. (Canada) National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, is whether a reasonably well-informed person could properly have a reasonable apprehension of a biased appraisal on the part of the decision-maker of the issues to be determined. The test is an objective one and the evidence must be sufficient to show the decision-maker would not approach the case with an open mind: Canada Post Corp. v. C.U.P.W. (1992), 1991 CanLII 434 (BC CA), 62 B.C.L.R. (2d) 182 (C.A.), at p. 184. There is a presumption that an adjudicator will act in a fair and unbiased manner based on the evidence before him or her. There must be more than mere suspicion or an allegation that an adjudicator will not bring an impartial mind to bear on the matter. There must be evidence which could lead a reasonable person to apprehend bias: Adams v. B.C. (Workers’ Compensation Board) (1989), 1990 CanLII 1952 (BC CA), 43 B.C.L.R. (2d) 228 (C.A.).

In Re Ontario Hydro (supra) it was stated at paragraph 46:

The test for bias, and specifically for bias consisting of a lack of impartiality, which has been developed in Canada is whether a reasonable person would apprehend bias; that is, whether a reasonable person, knowing the relevant facts and being familiar with a particular tribunal’s procedures and decision-making process, would suspect that the individual adjudicator may be unduly influenced, even if unintentionally, by improper considerations to favour one party or “side” in the matter before the adjudicator.

I agree with that view. Indeed, I find this decision to be the most helpful to the facts at hand. Vice Chair Surdykowski was writing for the Ontario Labour Relations Board, a tribunal with which we share some common features. The Grievance Settlement Board, however, has the added advantage of continuously dealing with the same parties and the same collective agreements. There is a highly developed understanding of the parties, the issues and the jurisprudence. An application of the facts of this case to the relevant standard of review compels the conclusion that there is no reasonable apprehension of bias. Clearly, a reasonable person in this context could not have a reasonable apprehension of bias because I have had some disclosed experience with a particular phrase utilized by the parties.

With respect to the Employer’s indication that had it known at the time the parties were choosing the adjudicator that I had this experience they would have chosen another Vice Chair, I would note that the Employer cannot be surprised that I came to the hearing room with experience from numerous hearing days with these parties dealing with various LTIP matters. I am not persuaded the Employer is, in any way, prejudiced by that experience given that the disclosure was made.

Further, the Employer argued that it would be “better” if this matter was heard and decided by someone else. That might be. But that is not sufficient reason for me to withdraw from this matter. Arbitrator Kennedy in Re Miracle Food Mart, Steinberg Inc. and UFCW (supra) was appointed by the Minister of Labour to determine a dispute regarding the issue of Sunday shopping. He was asked to remove himself due to a reasonable apprehension of bias because of his “association with counsel who, in interest, were totally aligned with the company on such a central and high profile issue as Sunday shopping”. Partners in his large law firm had acted in a leading constitutional case on the issue. Arbitrator Kennedy decided that there was no actual risk of bias. Further, he found that knowledgeable and informed people might realize that there is no connection whatsoever between the constitutional issues of the Sunday shopping matter and the contract interpretation matter raised by the grievances, it might not be so apparent to others who have a direct interest in the outcome. He stated that he believed he was “a proper person to hear this arbitration”, and he was convinced he had no actual bias. However, he stated he would withdraw unless both counsel notified him of their desire that he remain on the matter.

In my view, that case is distinguishable on the basis that those parties had no particular experience with the chair. Arbitrator Kennedy was appointed by the Minister of Labour, not invited by the parties. Moreover, where a reasonable apprehension of bias has not been established a public tribunal cannot justify the expenditure of costs that would be associated with starting this matter again before another Vice Chair merely on the basis that such an approach would be “better”.

For all of the foregoing reasons, the motion is denied. We will continue on our previously scheduled hearing dates.

Dated in Toronto this 17^th day of January, 2005.