Ontario Labour Relations Board
[1988] OLRB Rep. December 1205
Between: Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. Careful Hand Laundry and Dry Cleaners Limited, Respondent v. Group of Employees, Objectors
Before: Patricia Hughes, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.
Appearances: S. B. D. Wahl and F. DaSilva for the applicant; Stephen A. McArthur, Sidney H. Chelsky and Brenda Chelsky for the respondent; Jennifer Dailey for the objectors.
Decision of the Board; December 16, 1988
Decision
This decision deals with the request by Careful Hand Laundry and Dry Cleaners Limited ("Careful" or "the employer"), the respondent in this application for certification, that this panel of the Board disqualify itself from continuing to sit on this matter on the basis that there is a reasonable apprehension that the chair of the panel would be biased in determining the issues in dispute.
This certification application is brought by Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 ("the union") with respect to certain of the employees of Careful. There was filed with the Board a statement of opposition to certification of the union ("the petition"), and a document affirming support for the union ("the counter petition"); the overlap in relevant signatures between and among the membership cards filed by the union, the petition and the counter petition is such that the petition is relevant to these proceedings, but the counter petition is not relevant. As a party to these proceedings, the representative of the objecting employees has been present throughout and has participated in the proceedings as she saw fit. On the first day of hearing (before a different panel), the employer brought an allegation that an employee who had signed a membership card and confirmed on it that she had paid one dollar to the union for membership fees had not in fact paid the dollar ("the first non-pay"); three other non-pay allegations were raised by the representative of the objecting employees before this panel ("the second", "the third" and "the fourth non-pay"). In addition, the union and the employer have brought allegations of unfair labour practices against each other and the union has made an application under section 8 of the Labour Relations Act.
A Labour Relations Officer was appointed to inquire into the first non-pay allegation and report back to the Board by a different panel of the Board which also dealt with certain other preliminary matters (see Board decision dated September 23, 1988); at that time also, an Officer met with the parties who reached agreement on the bargaining unit description and who were given "the count", that is, that the union has filed membership evidence purporting to show the support of over 55% of the employees in the bargaining unit. As a result of the Officer's inquiry, the first non-pay allegation was set down for hearing by this panel which unanimously dismissed it (see decision dated October 19, 1988). During the hearing of that allegation, the representative of the objecting employees raised the second, third and fourth non-pay allegations. After the Board authorized a Labour Relations Officer to conduct the usual inquiry (see the October 19th decision), those allegations were set down for hearing by this panel to be heard together. As a result of the demeanour while on the witness stand of the individual who was said not to have paid one dollar, the parties agreed that the second allegation of non-pay should be withdrawn and it was. The Board then heard the evidence of the third and began to hear that of the fourth individual who was alleged not to have paid one dollar. It was during the evidence of the fourth individual, Chivonne Peniston, that the issue addressed in this decision arose.
In accordance with its usual procedure in hearing non-pay allegations, the Board first questioned Ms. Peniston. Counsel for the union then had an opportunity to question her and during that process asked her about her involvement in the counter petition (such questions were allowed in light of the circumstances of this case and the secrecy of the other names on the counter-petition was maintained). Counsel for the employer objected to a particular line of questioning which union counsel claimed was relevant to a possible explanation of Ms. Peniston's denial that she had signed the counter petition, and in the process of discussion of that objection, the chair suggested to him that there was no doubt that it was Ms. Peniston's signature on the counter petition, and that he would obviously have the opportunity to examine the relevant material and question the witnesses accordingly on it. It should be noted at this point that, as the parties were aware, the Board had before it documentary evidence in various forms of what purported to be Ms. Peniston's signature: three times on the membership card (which Ms. Peniston testified she had signed), once on the document filed as her "specimen signature" by the employer (which had not been put to her), once on the petition (which she said she had signed) and once on the counter petition (about which her own testimony was in total inconclusive). Normally, such evidence is not seen by the parties or by all the parties because of the protection the legislation and the Board grant to membership evidence. In this case, however, the chair had advised counsel that he would have an opportunity to view those documents. There was no further discussion at that point since, as a result of a comment by another member of the panel about the signature, the panel recessed. In the event, the recess was lengthy, the panel taking advantage of the opportunity to consider some matters of concern to it, in part relating to the signature, and as a result of those considerations the panel determined to adjourn the hearing until the early afternoon. After the panel returned to the hearing room, counsel for the employer advised that he had a motion to bring that the comment of the chair prior to the recess, that there was no doubt that it was Ms. Peniston's signature which appears on the counter petition, constitutes the basis for an apprehension of bias. The arguments of counsel for the employer and the union on that motion were heard after the extended lunch break; the representative of the objecting employees chose to make no submissions on the matter. We note that neither at this time nor by the end of hearing for the day did the Board determine the admissibility of the evidence which union counsel had sought to adduce; the objection to its admissibility remains outstanding.
Counsel for the union argued that for the motion to succeed, employer counsel must show that there was a predisposition on the part of the chair prior to or at the time of coming to these proceedings, evidenced by an event arising in the course of the proceedings (employer counsel does not make such an allegation). We reject that proposition; in our view, allegations of bias or apprehension of bias can arise during proceedings regardless of whether it can be traced to any predisposition prior to or at the start of the hearing. We also reject his proposition that the applicable test differs, depending on whether the matter arises at the commencement of the hearing or during the hearing.
The applicable test was framed as follows by Laskin C.J.C., speaking for the majority, in Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.): that a reasonably well-informed person could properly have a reasonable apprehension of a biased appraisal and judgment of the issues to be determined (p.'733). The Chief Justice continued that "the test of reasonable apprehension of bias ... [is a restatement of]what Rand, J. said in Szilard v. Szasz, 1954 CanLII 4 (SCC), [1955] 1 D.L.R. 370 at p. 373, [1955] S.C.R. 3 at pp. 6-7 [which, like the Committee for Justice and Liberty, involved bias based on prior association], in speaking of the 'probability or reasoned suspicion of biased appraisal and judgment, unintended though it be' ".
The test is an objective one. It is not sufficient to find apprehension of bias in a decision-maker simply because one party states "I am afraid the adjudicator will be biased because of something she said"; on the other hand, it is not sufficient for the adjudicator to deal with the matter simply by saying "I am not biased" or "I do not think anyone should think I would be biased". An objective test is necessary to avoid both allegations and determinations which are more reflective of self-interest than actuality. The determination must therefore be based on an assessment of the impugned words, including the context in which they were made and the surrounding statements. The test is whether a person who is informed about the circumstances surrounding the event giving rise to the allegation could have a reasonable apprehension that the adjudicator will not or will not be able to determine the matters in issue in a manner consistent with providing a fair and impartial hearing.
Counsel for the employer stated clearly and unequivocably that he was not asserting that the chair had made a determination or had made up her mind about Ms. Peniston's credibility. He conceded that he was not alleging that favouritism to any party was inherent in the chair's comment, but rather that after the panel recessed, he, his student and the employer looked at each other and said "we're cooked; we are not going to get a fair hearing"; he expressed "the fear that what [he] say[s] or do[es] from this time on is not going to matter". He explicitly confined his concern to the remark about the signature on the counter petition which he variously termed "an unalterable conclusion", "a prejudgment of fact", and "an unequivocal decision". Whether Ms. Peniston is found to have signed the counter petition, he further submitted, constituted a critical factor going to her credibility (he suggested that if the Board were prepared not to make it a critical factor, matters might be different, but he could not see how the Board could honestly do that). He submitted that the Board had made a conclusion without objecting employees or the employer having a chance to deal with the matter by calling evidence, seeing the documents or calling a handwriting expert. He discounted the significance of the statement which followed immediately upon the chair's remark, that he would have an opportunity to deal with the question and see the relevant materials. It is not, in our view, reasonable to conclude that the chair would at the same time make a statement relating to the evidence and assure counsel that he would have an opportunity to deal with all the relevant evidence and then ignore whatever counsel placed before the panel. A more reasonable inference is that the chair had reached a preliminary conclusion but was open to changing or tempering it in light of any additional evidence led by any of the parties.
Counsel for the employer relied primarily on two cases: Re Gooliah and Minister of Citizenship and Immigration (1967), 1967 CanLII 673 (MB CA), 63 D.L.R. (2d) 224 (Man C.A.) (in which the allegation was of actual bias) and Re Golomb and College of Physicians and Surgeons of Ontario (1976), 1976 CanLII 752 (ON HCJ), 68 D.L.R. (3d) 25 (Ont. Div. Ct.). In each case, the reviewing court found that the impugned proceedings from beginning to end were characterized by conduct leading to a reasonable apprehension of bias or of actual bias. Apart from ruling, without objection from the parties, on one further matter, in light of the lateness of the hour, the proceedings were adjourned. There is therefore nothing subsequent to assess in the manner in which the proceedings were assessed in Re Gooliah, supra, or Re Golomb, supra. However, counsel raised no objection to any of the proceedings prior to the impugned comment and specifically limited his objection to that comment.
The situation before us is thus quite different from any which occurred in the cases cited to us in which there has been a finding of apprehension of bias. In this case, the objection is to one comment made by the chair in the context of an objection raised by one party with respect to evidence adduced by the other. During hearings it is common to deal with objections in an informal manner; many objections are resolved without the necessity of rulings by the Board because of the parties' agreement on the way to proceed or because of the withdrawing of the objection or of the questions or documents from consideration. In the course of such informal discussions, the Board may make comments indicative of the trend of the evidence to that point; indeed, it may do so at times on its own initiative if it considers it appropriate to do so. Such comments may also be offered as a way of indicating to the parties the Board's view of the evidence to that point in time or of communicating to them concerns the Board may have about the issues being raised. Indeed such comments may be at times desirable in achieving a fair hearing since an element of fairness is that the hearing not be unduly prolonged by the unnecessary calling of extensive and/or unfocussed evidence on peripheral or minor issues; this issue in our view, as only one factor possibly going to credibility, may be so characterized. On a fair and reasonable consideration of the circumstances, the comment made by the chair to employer counsel would be understood to have been made in that spirit. The chair has no hesitancy in stating that she has not reached a final or unalterable decision on the point in dispute. More important, however, an objective assessment of the circumstances clearly demonstrates that the remark was made by the chair on the basis of the evidence to that time, including the documentary evidence before the Board, to indicate that in at least the chair's view, counsel might have a difficult time in counteracting the evidence then before the panel. But "difficult" is not impossible; a message to counsel that the road may be a difficult one is not synonymous with a statement reflecting conviction beyond persuasion to the contrary.
For these reasons, we conclude that a reasonably well-informed person would not properly have a reasonable apprehension that the chair (or any member of the panel) would appraise and reach conclusions on the issues to be determined in a biased manner without giving the parties a fair and impartial hearing. There being no merit to counsel's objection to our proceeding, the hearing will continue on January 20, 1989, as previously scheduled.
During the recess referred to in paragraph 4 above, the panel had an opportunity to do an additional check of the documentary evidence in the file. That review revealed some "doubtful signatures": signatures on cards which did not appear to be the same as the corresponding speciman signatures filed by the employer. It appeared that the Board had not yet done the usual investigation into these cards. Accordingly, the Board appointed a Labour Relations Officer to inquire into the "doubtful signatures" and report back to the Board. As result of the Officer's investigation, the Board will inquire into whether the following two individuals did sign the cards filed by the union purporting to be evidence of their membership in the union: Sonia Jackson and Ana Barreiros. Accordingly, that matter is added to the issues to be heard by the Board when hearings into this application recommence on January 20, 1989. Pursuant to its usual practice, the Board will call as witnesses the two individuals purported to have signed the relevant cards, the collector, Jim Amos, and the Form 9 declarant, Carlos Aedo, who is already under subpoena to testify with respect to the "non-pay" allegations.