Power Workers' Union v. International Brotherhood of Electrical Workers, 1997 CanLII 15542

Power Workers' Union v. International Brotherhood of Electrical Workers

[1997] OLRB REP. NOVEMBER/DECEMBER 1005

4077-95-U; 1992-96-U Power Workers' Union - Canadian Union of Public Employees, Local 1000 ("PWU") and J. Caskanette, G.D. Chaffey, M.D. Collins, L. Crausen, H.R. Gillies, R.C. Hansen, G. O'Donnell, J. Stark, R. Thorns, H. Tomsett and R.R. Young, Applicants v. International Brotherhood of Electrical Workers in its own right and as trustee of International Brotherhood of Electrical Workers, Local 1788, Ken Woods, Allan Diggon, Tom McGreevy, Ontario Hydro and Electrical Power Systems Construc­tion Association ("EPSCA"), Responding Parties v. The IBEW Electrical Power Sys­tems Construction Council of Ontario ("IBEW-EPSCCO"), Intervenor; International Brotherhood of Electrical Workers Local Union 1788 ("IBEW, Local 1788"), Applicant v. International Brotherhood of Electrical Workers, Ken Woods, Allan Diggon and Jim Seaton, Responding Parties v. The IBEW Electrical Power Systems Construction Council of Ontario ("IBEW-EPSCCO"), and Electrical Power Systems Construction Association ("EPSCA"), Intervenor

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: L. A. Richmond for Power Workers' Union - Canadian Union of Public Employees, Local 1000; L.A. Richmond, H. Tomsett and J. McDermott for IBEW Local 1788; Rob Little for Ontario Hydro and Electrical Power Systems Construction Association; David McKee and Ken Woods for International Brotherhood of Electrical Workers, Ken Woods and Tom McGreevy; David McKee, Allan Diggon and Jim Seaton for Allan Diggon and Jim Seaton; A. M. Minsky and John Pender for IBEW Electrical Power Systems Construction Council of Ontario.

DECISION OF THE BOARD; November 4, 1997

1These unfair labour practice complaints were scheduled to be heard beginning on September 16, 1997. In the case of Board File No. 4077-95-U, this was a continuation in the sense that one of the issues raised in that complaint has already been heard and disposed of (by decision dated September 30, 1996, reported at [1996] OLRB Rep. Sept./Oct. 821). Board File No. 1992-96-U is a newer complaint which had been scheduled to come on for hearing at the same time so that the parties could address the question of how it should proceed, if at all.

2By endorsement dated September 17, 1997, I dismissed the applicants' request that I disqualify myself from having anything further to do with these complaints.

3After the hearing was convened, but before it began, the applicants (all of them) requested that I disqualify or otherwise excuse myself from hearing these matters because of what they asserted was a reasonable apprehension of bias arising out of what counsel described as my long-term involve­ment in what he characterized as "the dispute" between IBEW Local 1788 and its members, supported by the PWU, on one hand, and the IBEW International, the other IBEW construction entities (i.e. the Council and other local unions) and Ontario Hydro on the other; and out of decisions which I have issued in the various matters I have heard in that respect. Mr. Richmond stated that his clients believe that I have chosen sides, that I have arrived at a conclusion regarding how "the dispute" should ultimately be resolved, and that I therefor cannot impartially adjudicate these complaints. Although counsel characterized the issue being raised as one of a "reasonable apprehension of bias", and notwithstanding that Mr. Richmond was quick to indicate that what was being asserted was a natural consequence of my involvement in the various matters as a "thinking adjudicator", it was apparent that "actual bias" was also being alleged.

4The applicants submitted that they are entitled to an impartial adjudication of their com­plaints. They argued that they are entitled to a "sustained confidence in the independence of mind of those who sit in judgment of them", and presumably of their cause. They submitted that a reasonably informed bystander would perceive or apprehend bias on my part.

5In that respect, the applicants pointed to the context of these complaints, which they say goes back some four years. They asserted that with the exception of a telephone conference in one matter, I have been the only Vice-Chair to have been given authority to decide any significant matters in the overall dispute, and that I appear to have acquired a kind of property right over the dispute and become the "Czar" of what is primarily an IBEW internal dispute; something which they submitted is unprecedented. Although the applicants did not ascribe any personal blame to me, they asserted that the resulting situation is an untenable one, both for me and for them, and which demonstrates why no one Vice-Chair should control the entire destiny of a "single struggle".

6The applicants also asserted that the decisions which I have issued in this "single struggle" to date demonstrate a bias against their position(s) and indicate that I have predetermined the result of these complaints. Indeed, counsel specifically asserted that these complaints: "would simply be an opportunity for you to restate what you have found - no matter what the arguments or evidence presented". In that respect, the applicants pointed to paragraph 93 of my February 9, 1996 decision in International Brotherhood of Electrical Workers [1996] OLRB Rep. Feb. 70 (in Board File No. 4151-93-U), paragraphs 70 and 72 of my February 27, 1997 decision in Ontario Hydro [1997] OLRB Rep. Jan./Feb. 82 (in Board File Nos. 01 64-94-R, 01 86-95-R, 01 87-95-R and 0251-95-R), the decision which has already issued in Board File No. 4077-95-U herein dated September 30, 1996 (reported as International Brotherhood of Electrical Workers [1996] OLRB Rep. Sept./Oct. 821, my decision dated October 11, 1996 in Board File No. 0856-96-M (reported as International Brotherhood of Electrical Workers [1996] OLRB Rep. Sept./Oct. 826), and the last sentence of paragraph 20 in my unreported decision dated October 5, 1995 in Board File No. 2161-95-M. The applicants asserted that the undeni­able consistent theme of these decisions is that I have decided that the members of IBEW Local 1788 are to have no say about their collective bargaining future, and that where a balancing of interests is necessary, IBEW Local 1788, and more importantly its members, will lose.

7The applicants submitted that through no fault of my own I have been placed in a situation which I should remove myself from, and give some other Vice-Chair an "opportunity" to take a fresh look at the matter. Counsel suggested that if I had any doubts concerning my ability to continue with these matters, I should resolve them in favour of granting the motion and stepping down.

8In argument counsel for the applicants referred to Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (1992) 1992 CanLII 84 (SCC), 89 D.L.R. (4th) 289 (Supreme Court of Canada); Regina v. Board of Arbitration Ex parte Cumberland Railway Co. (1968) 1968 CanLII 746 (NS CA), 67 D.L.R. (2nd) 135 (Nova Scotia Court of Appeal); Huerto v. College of Physicians and Surgeons (1994) 1994 CanLII 4900 (SK QB), 117 D.L.R. (4th) 129 (Saskatch­ewan Queens Bench) and (1996) 1996 CanLII 4920 (SK CA), 133 D.L.R. (4th) 100 (Saskatchewan Court of Appeal); Re. Batorski and Moody (1983) 1983 CanLII 1609 (ON HCJ), 150 D.L.R. (3rd) 114; Zundel v. Canada (Minister of Citizenship & Immigration) (1996) 1996 CanLII 4083 (FC), 138 D.L.R. 12 (Federal Court, Trial Division); and Matsqui Indian Band v. Canadian Pacific Ltd. (1995) 1995 CanLII 145 (SCC), 122 D.L.R. (4th) 129 (Supreme Court of Canada).

9The other parties all opposed the applicants' motion. They submitted that there was no factual or legal support for the motion, In essence, they submitted that there was nothing which suggested that I had not, could not or would not impartially dispose of any of the various pieces of litigation between or involving the parties which I have been, am or may be assigned to hear on the basis of the relevant evidence and considerations. They pointed out that I have not been assigned to every piece of litigation in what they at least implicitly agreed was a single evolving struggle which is substantially an internal IBEW conflict, but which also directly affects non-IBEW parties such as those herein. They submitted that the extent of my involvement in what is essentially a single matter is not unprecedented, either at the Board or elsewhere. They characterized the applicants' motion as "sour grapes", and submitted that what was being urged upon me was an inappropriate "score card" approach to the assignment of Vice-Chairs. The parties opposite to the applicants suggested that what the applicants really wanted was to be allowed to do some "Vice-Chair shopping", and asked the rhetorical questions: "What happens when a party has had preliminary, procedural, or evidentiary rulings consis­tently made against it, or which perceives a Vice-Chair to be responding in a negative manner to its case? Does this raise a question of actual or apprehended bias"?

10Further, the parties opposite submitted that it is sensible and efficient to assign a single Vice-Chair to what is essentially a single matter.

11Finally, the other parties submitted that there was nothing in any of the decisions which I have issued which predicts the result in the complaints herein, and in that respect they point out that the applicants have failed to make any connection between the decisions they referred to and the issues in these complaints.

12Alleging that an adjudicator is biased, or that there is a reasonable apprehension that s/he is biased, is a very serious matter. It is an allegation which must not be made lightly. I was satisfied that the applicants' motion in that respect in this case was seriously made, with due regard to the gravity of the issue. However, having carefully considered the motion, I was satisfied that I have not demonstrated any actual bias, and that I am not biased against the applicants (or anyone else) in these proceedings. I was also satisfied that whatever the subjective feelings of any of the litigants or their supporters, there is no objective reasonable apprehension that I am biased. Finally, I was satisfied that it is otherwise neither necessary nor appropriate for me to "step down" or decline to hear these complaints.

13I did not consider the question of the timing of or any delay in bringing this motion to be significant or relevant. If bias has just come into being, or has just been apprehended, the issue is properly raised at that time. Assuming that delay could be a relevant consideration, and even if the alleged bias was or could reasonably have been apprehended earlier, I considered it appropriate in the circumstances to discount it entirely and to deal with the motion on its merits.

14The applicants' allegations of bias were based entirely on the degree of my involvement in the various proceedings to date, and the decisions which I have issued to date.

15The following is a list by file number of cases, in addition to the ones herein, which appear on their face to directly or indirectly relate to "the single dispute" that these proceedings relate to, together with the Vice-Chairs who have been assigned to or who have had dealings with them:

0163-96-M Herman, Surdykowski

0164-95-R Stamp, Surdykowski

0186-95-R Stamp, Surdykowski

0187-95-R Stamp, Surdykowski

0251-95-R Stamp, Surdykowski

0480-96-U Bloch, Herman

0540-95-U Hewitt, Stamp

0856-96-M Surdykowski

1031-96-U Bloch, Herman

1183-95-U Bloch, MacDowell

1319-95-U MacDowell

2160-95-U Herman, Trachuk

2161-95-M Surdykowski

2717-94-U Bloch, Shouldice, Surdykowski

3380-95-U Nairn

3513-95-U Nairn

3623-96-U Bloch, Surdykowski

4100-95-U Surdykowski

4103-95-U Bloch

4151-93-U Surdykowski

4225-95-T Shouldice, Surdykowski

4305-96-T Bloch, Surdykowski

4396-94-U Chapman, MacDowell

4397-94-M Chapman, MacDowell

4456-94-U Trachuk

16This list is likely incomplete, and it may be that some of the matters on it have only a remote connection to the "single struggle". However, the list does serve to illustrate that while I am far from the only Vice-Chair assigned to cases involving the applicants and "the single dispute", my name does come up relatively often. On the other hand, so do the names of several other Vice-Chairs.

17I assumed that all of the various proceedings have been important to the parties. However, I also accepted that some have been more significant than others, and, for purposes of the applicants' bias allegations, I assumed that the five proceedings specifically identified by them, and my decisions in them, have been the most significant ones from their perspective.

18The first decision was in Board File No. 4151-93-U, issued on February 9, 1996. This was an unfair labour practice complaint by IBEW Local 1788 in which it alleged that the IBEW International had altered its jurisdiction and interfered with its autonomy without just cause, contrary to what are commonly referred to as the "Bill 80" provisions of the Act. This matter was entirely concerned with construction industry labour relations. The Act has long contemplated, indeed it has directed, that the Board have a construction industry division (sub-section 110(5) of the current Act). The Board has in fact long had such a division. I am a "construction Vice-Chair" (as are many of the other Vice-Chairs whose names appear in the list in paragraph 15, above). I note that although I actually wrote this particular decision, it is a unanimous decision of a three person construction industry panel of the Board. The complaint was dismissed; that is, IBEW Local 1788 lost. There was no request for reconsideration, and no one has sought judicial review.

19The reported decision consists of 105 paragraphs covering 25 pages. The applicants pointed to a single paragraph, paragraph 93, in support of their allegations of bias. That paragraph reads as follows:

93. Nor is there any question regarding the wishes of Local 1788's members. Local 1788 has enjoyed very strong support for the position it took in the dispute which is the subject of this application from its members at all material times. In that respect, we did not understand any part of Local 1788's position to be that a jurisdictional change which is opposed by the members of the local union in question is somehow presumptively without just cause. We do not find that to be a tenable position in any event. The "wishes of the members of the local union" is just one of the four factors the Board is required to consider under section 147. Further, in the construction industry, it will be the rare case indeed in which members of a local union will want to give up jurisdiction (which in the construction industry translates into work or opportunities for work). If the Legislature had intended that members' wishes have some sort of veto effect, it could have said so. The Legislature has not said so.

20The applicants submitted that at least in hindsight this was the first indication that I had decided I was going to give no weight to the wishes of the members of IBEW Local 1788.

21This decision speaks for itself and must be read in its entirety. It is probably fair to say that the decision stands for the proposition that although it is a factor which must be considered, in circumstances like those established in that case, the "wishes of the members of the local union" are not likely to be given much weight because they will generally oppose the change in jurisdiction which led to the complaint. (It is probable that it is only in the unlikely event that the members supported a change in jurisdiction which the local union challenged that the "wishes" factor would be given any significant weight.) Paragraph 93 recognizes, as does the decision as a whole, how the construction industry works, particularly when it comes to matters of local union jurisdiction.

22The second decision was in Board File 2161-95-M, an application for interim relief. Again, the matter was heard and unanimously decided (by decision dated October 4,1995) by a full construc­tion panel, not by me alone. The decision is 23 paragraphs (9 pages) long. The applicants point to the last sentence in paragraph 20 which reads:

At the same time, the applicants seek interim reinstatement to membership in the very trade union which they are actively seeking to leave.

23It was not clear to me how this suggests any bias. No one has ever sought reconsideration or judicial review of the decision. No one, including the applicants, has ever suggested how or why the last sentence in paragraph 20 is either inaccurate, otherwise wrong, or inappropriate. Further, the sentence must be placed and read in context, not only of the entire paragraph 20, but the whole decision, particularly paragraphs 17 to 22:

17. The Board is satisfied that the applicants have pleaded a case which is interesting, and perhaps difficult, but nevertheless arguable. It raises questions concerning the interplay between the rights of individuals and trade unions under the Labour Relations Act, the manner in which a trade union may or may not react to what are perceived to be threats to it or its members, and the extent to which the Board may or will involve itself in what may appear to be internal trade union matters.

We are not prepared to say at this interim stage that there is no arguable case.

18. However, the Board is not persuaded that this is an appropriate case for granting interim relief.

19. The Board has consistently said that individual or personal harm will usually not constitute a sufficient basis for interim relief, particularly where the harm asserted in that respect is speculative or can be compensated for in damages. This is because the Board's interim relief power is a labour relations tool in a labour relations statute. As such, it is to be applied for labour relations reasons, not personal ones. Although the personal harm alleged in this case is not entirely speculative, all of it can, in our view, be compensated for in damages if the applicants succeed in their main application.

20. Nor are we persuaded that there is a sufficient labour relations basis for granting the interim relief sought. Virtually every application at the Board which posits an arguable case includes allegations that important rights under the Labour Relations Act have been violated or require protection. The materials before the Board describe a rather unusual situation but not one which requires interim intervention. Moreover, the applicants own materials and representations demon­strate that this is but one part of a large, complex and very acrimonious fight in which they have to varying degrees participated in a manner which has been, or has been perceived to be, contrary to various IBEW interests. Indeed, at least some of the applicants appear to be at the forefront of the attempt by the PWU to displace the IBEW Local of which they are former officers or representatives as well as members. At the same time, the applicants seek interim reinstatement to membership in the very trade union which they are actively seeking to leave.

21. We agree with the observation of counsel for the applicants that real stability will only be possible when all of the various pieces of litigation are disposed of. Having regard to the materials filed, the fact that representation votes have been taken and the ballot boxes sealed in the certifica­tion proceedings, and the fact that the hearings in the certification proceedings are scheduled to begin shortly and are expected to conclude before the end of the year, we are of the view that granting the interim relief sought is more likely to further destabilize the labour relations situation than to stabilize it.

22. In the result, the Board is not satisfied that there are good labour relations reasons to prefer the status quo described by the applicant, which is just one of several status quos which could be constructed, over the present status quo. The Board is not satisfied that the interim relief requested is necessary or appropriate.

24The third decision chronologically is the previous decision in Board File No. 4077-95-U herein, one of the complaints herein. This time I did sit and decide the issue alone. The parties agreed and jointly requested that I determine whether a breach of section 79 of the Labour Relations Act was made out on the Agreed Statement of Facts which they filed. I determined that no such breach had been made out on the agreed facts.

25The applicants alleged that the "Generation Projects" collective agreement between the IBEW-EPSCCO and the EPSCA had not been ratified as required by section 79. More specifically, the applicants alleged that the IBEW-EPSCCO was required to conduct a ratification vote of employees in accordance with sub-sections 79(7) through (9), that it had failed to do so, and that the "Generation Projects" agreement was therefor not a collective agreement for purposes of the Act. As a practical matter, most (if not all) of the employees who would have been entitled to vote would have been members of IBEW Local 1788.

26In paragraphs 12 to 16 of my decision, I rejected the applicants' position as follows:

12. Accordingly, now as before, there is nothing in section 44, section 79, or elsewhere in the Labour Relations Act, 1995 which requires a trade union to conduct a ratification vote with respect to a proposed collective agreement or Memorandum of Settlement which applies to construction employees. It is clear that the legislature intended to exclude the construction industry from the mandatory employee ratification (and strike) vote provisions of section 44 (and subsections 79(3) and 79(4) in the case of a strike) now in the Act. This means that trade unions continue to enjoy considerable freedom in the manner in which they conduct themselves when it comes to strikes and the settling of collective agreements which relate to construction employees. This includes the right, which all unions previously had, to adopt ratification procedures which do not include an employee ratification vote. Such ratification procedures may include ratification votes of other than employees, which as a practical matter are common in the case of councils of trade unions (which are recognized as collective bargaining entities under the Act and are common in the construction industry). Indeed, it is not uncommon for negotiating committees to put things to a vote, even when they are not negotiating for a council or trade unions. There cannot be anything improper about such votes, which are clearly not subject to the provisions of subsections 79(7) through 79(9).

13. Consequently, when it comes to construction employees, a trade union is free to choose a ratification process which includes a vote which is not a vote of employees. To put it another way, the fact that a trade union chooses to hold a ratification vote with respect to a proposed collective agreement or Memorandum of Settlement which relates to construction employees does not mean that that ratification vote has to be a vote of employees. Like its predecessor provisions, subsections 79(7) through 79(9) apply to the construction industry only when a trade union decides to hold an employee ratification vote. If it does, then subsections 79(7) through 79(9) require the union to conduct the vote in accordance with the minimum standards established by those provisions (except in the ICI sector of the construction industry in which case section 165 governs the manner in which an employee bargaining agency or an employee bargaining agent which chooses to do so must conduct an employee strike ratification vote).

14. Cases like Cuddy Food Products Ltd. [1988] OLRB Dec. 1211 and the T Eaton Company Limited [1985] OLRB Aug. 1309 (among others) deal with the conduct of a trade union which chooses to conduct an employee ratification vote, and do not stand for the proposition that every ratification vote must be a vote of employees.

15. Nor is it odd or surprising that this results in different treatment of construction and non-construction employees. For most of the history of labour relations in this province, the construction industry has been recognized as requiring different treatment. Accordingly, there has long been a "construction industry" section in the Act which has provided, as it does in the current Act, that where there is a conflict between the "general" provisions and the construction provisions of the Act, the latter will prevail in circumstances to which they apply. This is legislative recognition of the fact that while there are many similarities between the labour relations in the construction industry and the labour relations in non-construction endeavours, there are also significant differ­ences between them.

16. In this case, the IBEW-EPSCCO decided not to have an employee ratification vote with respect to the May 23rd, 1996 Memorandum of Settlement. Instead, it decided to hold a vote of the accredited delegates of the IBEW-EPSCCO. It was entitled to do this and the provisions of sections 79(7) through 79(9) do not operate to require that the IBEW-EPSCCO hold an employee ratification vote in that respect, nor to the manner in which the IBEW-EPSCCO conducted its ratification vote. It remains to be seen whether the conduct complained of was otherwise improper.

27The applicants alleged that this decision demonstrates my propensity to prevent the members of IBEW Local 1788 from expressing their wishes with respect to collective bargaining matters which concern them. In the decision, I dealt with a question of law which raised an issue of statutory interpretation. The wishes of persons who may be affected are not relevant to a question of law. However, the applicants in that case are seeking judicial review of this decision, and the parties may obtain the benefit of the court's assessment of my decision in due course. To my knowledge, no allegations of bias or apprehension of bias have been made in the application for judicial review.

28The fourth decision was in an application for interim relief made in aid of the “main application" in the complaint in Board File No. 4077-95-U herein. I sat on and determined this application alone as well. Although it was the fourth decision to be issued, it constitutes my reasons for dismissing the application for interim relief by "bottom line" decision dated July 2, 1996 (i.e. prior to the "third decision" as aforesaid).

29The applicants argued that demonstrates what they assert is the consistent theme in my decision; namely, that when a balancing of interest is required, they will be balanced against them. I found it interesting that the applicants conceded that I may have had "good reasons" for my decision, but nevertheless asserted that the conclusion which they draw; that is, that I am biased against them, is a reasonable one. The applicants did not request reconsideration, and to my knowledge, no application for judicial review of this decision has been filed.

30This particular decision consists of 79 paragraphs, and the reported version is some 16 pages long. As the opening words of the single paragraph the applicants specifically pointed to (paragraph 70) suggest, it must be read in the context of the decision as a whole, and particularly paragraphs 64 to 79, which are the "guts" of the decision:

64. First, I note that this is but one more piece of an extensive litigation puzzle involving the internal workings and organization of the IBEW, its various construction Locals and the IBEW Electrical Power Systems Construction Council of Ontario ("IBEW-EPSCCO"), and the EPSCA and Ontario Hydro, a struggle in which the Power Workers Union, with whom former representa­tives and members of the IBEW, Local 1788 are now associated, has become involved through applications for certification in which the PWU seeks to displace IBEW Local 1788 as bargaining agent.

65. In essence, the applicants, which are the PWU and individual members of the IBEW Local 1788 who support the PWU, allege that "Ontario Hydro/EPSCA and IBEW-EPSCCO" have negotiated and entered into a collective agreement in a manner which is contrary to sections 86(2), 87(2), 79, and 149 and 74 of the Act, for purposes of this application, by destroying the seniority rights Local 1788 members have enjoyed for some 40 years. (I note that with respect to section 74, section 99(5) of the Act gives the Board a broad interim relief jurisdiction. It is not necessary to resort to the SPPA in that respect.) They allege that the immediate impact on the applicants is the loss of the right to bump on a province-wide basis, and to retain seniority if they are hired from the out-of-work list. They allege that the harm to the PWU is a perception that it is unable to protect its supporters.

66. Although it is not entirely clear that the applicants have a clearly arguable case on all the breaches of the Act they allege, they clearly do on some of them. Due to the disposition of this application, I find it unnecessary to delve into that question further. Suffice is to say that I consider that the applicants made Out enough of an arguable case for me to address the second prong of the test which the Board has developed; that is, balancing the harm which would likely result if the orders requested are not granted on one hand, and if they were granted on the other.

67. I was not satisfied that the applicants had pointed to any actual harm which had or is about to occur. On the contrary, the harm alleged was entirely speculative.

68. Further, although the harm being alleged by the applicants had broader labour relations elements in it, it was primarily personal so far as the individual applicants are concerned, If there is one thing that is clear from the Board's interim jurisprudence, it is that the interim power is to be used for labour relations reasons, not personal ones, however significant these may seem to be to the individuals involved. Accordingly, it will generally be inappropriate for the Board to grant interim orders with respect to personal harm issues (see, for example, Morrison Meat Packers Ltd. [1993] O.L.R.B. Rep. April 358). This is particularly true where, as I am satisfied is the case here, any harm which may be suffered by the individuals can be remedied if the applicants are ultimately successful. In that respect, I reject the applicants' assertions that it will be impossible to fashion appropriate remedies for the seniority rights problems, although I do not deny that some difficulties may be presented.

69. Nor was I persuaded by the applicants "chilling effects" arguments with respect to the PWU's applications for certification. Those applications have been made and representation votes have been held (although the ballot boxes have been sealed pending the outcome of the litigation of various issues, which litigation has progressed much more slowly than anyone involved, including myself as the Vice-Chair seized with that litigation, would like). It is not at all clear what chilling effect, or other harm, which has not yet occurred in any event, there could be here in that respect, and it is insufficient to establish a labour relations harm which would form an appropriate basis for the interim orders sought.

70. On the other hand, I was satisfied that granting the orders sought could create significant labour relations problems for the collective bargaining parties whose conduct is challenged by the applicants, by upsetting the collective bargaining balance they have sought to achieve, and could at the same time have the same kind of negative impact on members of other IBEW Locals which the applicants complain of.

71. Finally, there is the question of delay. It may be that the delay in this case, which on the applicants' own materials is at least three weeks (from May 24, 1996 when it is alleged that IBEW Local 1788 stewards were advised that a collective agreement which have been rejected by the membership was going to be signed by the IBEW-EPSCCO, to June 17, 1996 when this application was filed), but it could be viewed as being as long as thirteen weeks having regard to the history of internal acrimony which gives context to the particular circumstances (from May 24, 1996 when a Memorandum of Settlement which allegedly contained concessions, including the stripping of seniority rights which the applicants complain of, until June 17, 1996).

72. A delay of three weeks would not have caused me to dismiss this application without considering it on its merits. Nor would it otherwise have caused me any great concern. Parties are entitled and expected to consider and formulate their positions before coming to the Board. However, I did find it appropriate to consider the longer period of thirteen weeks, when it ought to be apparent to the applicants that the matters they complained of in this interim application were a concern, as a factor in assessing the merits of the application (as the Board has done on other cases: see William Neilsen Ltd. [1994] O.L.R.B. Rep. March 326; Price Club Inc. [1993] O.L.R.B. Rep. July 635; Morrison Meat Packers Ltd., supra).

73. As I already indicated above, a fundamental purpose of the Labour Relations Act, 1995 which has remained constant throughout the legislative history of the Labour Relations Act in Ontario is to facilitate collective bargaining and promote the expeditious resolution of workplaces disputes.

74. Further, it is well accepted that "labour relations delayed are labour relations defeated and denied", and it is therefore important that labour relations litigation be commenced and pursued with reasonable diligence. (In that respect see the comments of Supreme Court of Canada in Dayco (Canada) Ltd. v. CAW-Canada 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230 at pages 306 to 307.)

75. It is particularly important that a request for interim relief be made in a timely manner. Such relief is "extraordinary" in the sense that it is relief which is given notwithstanding that there has been no hearing or decision on the merits of the case, and is relief to which the receiving party may not be entitled in the result. Accordingly, it is appropriate for the Board to take any delay in making or pursuing an application for interim orders into account when considering whether interim relief is appropriate, or when considering whether it will entertain such an application on its merits.

76. This does not mean that the party must or should come to the Board at the first sign of trouble. It is quite appropriate for a party to take some time to consider its options, and to pursue a non-litigation resolution of the dispute. It is almost inevitable that some time will pass between the time when a dispute arises and an application for an interim order is made. The question is not whether the party has delayed in coming to the Board, but rather whether there has been undue delay in pursuing an application to the Board.

77. In this case, history suggests that there was no reasonable prospect for any resolution between the parties. Further, the dispute involves a complex collective bargaining situation. Even at its simplest, collective bargaining is a process in which the Board is reluctant to intervene, but if intervention is necessary or appropriate, it should occur at the earliest possible stage and not, if at all possible, after the process has come to fruition in the form of a collective agreement.

78. In this case, I considered the applicants delay to be undue in the circumstances.

79. In the result, and having regard to all the circumstances, including the timing of the filing of this application, I was not satisfied that it was appropriate to grant the interim relief requested. In the exercise of the Board's discretion I therefore dismissed the application.

31With respect, it is not apparent to me that there is anything startling or even novel in the disposition of this application for interim relief on its merits. Indeed, most of the decision (paragraphs 9 to 56) dealt with the issue of the Board's jurisdiction to award interim relief at all. After concluding that the Statutory Powers Procedure Act gives the Board jurisdiction to award interim relief, I consid­ered whether the Board should nevertheless approach interim relief applications differently under the current (Bill 7) Act. I concluded that there was no reason for the Board to approach interim relief applications differently, and I applied the approach which the Board had developed under the Bill 40 Act to the application.

32The fifth decision concerned Board File Nos. 0164-95-R, 0186-95-R, 0187-95-R and 0251-95-R, which proceeded together. I dismissed the three applications for certification in which the PWU sought to displace the IBEW-EPSCCO and IBEW Local 1788 as the bargaining agent for employees covered by the "Generation Projects" and "Transmission" agreements respectively. Sitting alone as a single Vice-Chair, I dismissed the PWU's applications in a 130 paragraph 33 page long (reported version) decision, on the basis that the PWU is not a construction trade union; that is, not a trade union within the meaning of section 126 of the Act, and that it was therefor not entitled to make the applications. This decision dealt with what is probably a question of mixed fact and law which raised an issue of statutory interpretation. The applicants' point to paragraphs 70 and 72 as demonstrating a predisposition against them, and specifically against permitting the members of IBEW Local 1788 to express their wishes regarding the question of who will represent them in collective bargaining.

33I had some difficulty in understanding what it was that the applicants were complaining about (other than the result). First of all, it is inappropriate to read paragraphs 70 and 72 without also reading paragraph 71:

70. I also note that the Board has recently received some 200 letters from individuals who purport to be members of IBEW Local 1788 and "one of 242 people on the voters' list" for the votes which were held in these applications, in which these individuals express the view that "we as workers should have the right to choose the union to be our bargaining agent", and "urging" that the ballots be counted "without delay". It is readily apparent that someone on the PWU's side of this litigation has orchestrated this letter writing campaign in an attempt to influence the Board. All of the letters are in a prepared form which the individual has dated and signed, and all but a very few have been sent to the Board in an envelope bearing a printed address label. All of the letters are addressed to the Chair. Of course, the Chair is not seized with this matter, I am. Accordingly, the decision in these applications must be, and will be, made by me, not by the Chair or anyone else.

71. 1 will give both the unidentified orchestrator(s) and the individual letter writers the benefit of the doubt and assume that they did not intend to have the Chair try to influence my decision in these matters. Further, I understand the frustration that the employees must be feeling, their desire and that of the parties for a decision, and that any avoidable delay is very undesirable. However, speed is not the only objective. This has been a lengthy proceeding which has raised complex issues of great significance not only to the employees and parties involved, but also to the construction industry as a whole. Like every matter which comes before the Board, these applications deserve a decision which is made after the Board has given due consideration to the evidence and representa­tions of the parties. Surely, none of them would have it any other way. This takes longer in some cases than in others. Unfortunately for all concerned, this is one of those "longer" times.

72. In any event, the letter campaign is quite irrelevant to the Board's consideration of the issues of whether, first, the PWU must be a section 126 trade union in order to bring its applications herein, or second, if so, whether it is such a trade union. That is, whether or not the PWU is entitled to represent the employees who are the subject of its applications is not a matter of their wishes in that respect. It may be that the PWU wishes to represent the employees and that the employees wish the PWU to represent them, but the question is whether or not the PWU can do so. That is what this whole case is really about.

34In argument, counsel for the applicants expressly stated that the purpose of the letters referred to in the excerpt was to try to influence the Board to determine the issue under consideration in favour of the PWU. Although it is not clear from the decision, these letters were sent to the Chair of the Board and without advising any of the parties opposed an interest to the PWU, well after the hearing had concluded and I had begun preparing the decision. Accordingly, the letters were intended to induce the Chair to try to influence me to decide the matter in a particular way; namely, in favour of the position the writers supported. This was clearly inappropriate. Indeed, it was not appropriate for anyone directly or indirectly interested in the proceedings to write to the Board about the manner in which the issues should be determined after the hearing had ended. Nevertheless, and notwithstanding the sentiments I expressed in paragraph 70, I gave the benefit of the doubt to the letter writers and made an assumption which I discovered was unwarranted when this bias motion was argued. Further, I did not consider these letters as weighing either for or against the PWU. Not only would it have been improper for me to do so (Banca Nazionale de Lavori of Canada Ltd. v. Lee-Shanok (1988) 87 N.R. 178 (Federal Court of Appeal), they were irrelevant to the question of mixed fact and law which was before the Board. Why they were irrelevant should be clear from the decision read as a whole.

35Finally, given the applicants' approach to their motion that I disqualify myself, and their apparent sensibilities in that respect, I have no doubt that if I had made no mention of this improper post-hearing letter writing campaign, they would have criticized me for ignoring it.

36The PWU has filed an application for judicial review of this decision. To my knowledge, no allegations of bias or apprehension of bias have been made in the application for judicial review.

37Independent and impartial adjudication of disputes is fundamental to our system of justice. Indeed, it is part of the duty of fairness, if not natural justice. Independence and impartiality are overlapping and related, but not congruent concepts. As Madam Justice L'Heureux-Dube observed in 2747-3174 Quebec Inc. v. Quebec (Regie des permits d'alcool (1996) 1996 CanLII 153 (SCC), 140 D.L.R. (4th) 577 (Supreme Court of Canada), at page 622, "Independence is a necessary, but not sufficient, prerequisite for impartiality". The differences between them arise out of the focus on the effect of institutional structure on adjudicative freedom (i.e. institutional bias) when independence is in issue; and the focus on the characteristics or attitudes of the individual adjudicator (i.e. personal bias) when impartiality is in issue.

38More specifically, there is a distinction between institutional bias or lack of independence, and actual or apprehended individual bias or lack of impartiality. As the Supreme of Canada pointed out in R. v. Valente 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, independence and impartiality are related but severable and distinct values or requirements of justice. The Supreme Court of Canada offered the following distinction:

Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case... the word "independent" in section 11(d) [of the Canadian Charter of Rights and Freedom] reflects or embodies the traditional constitutional value of judicial indepen­dence. As such it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others...

Similarly, in R. v. Genéréux 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, the Supreme Court of Canada commented that:

To assess the impartiality of a tribunal, the appropriate frame of reference is the "state of mind" of the decision-maker. The circumstances of an individual case must be examined to determine whether there is a reasonable apprehension that the decision-maker, perhaps by having a personal interest in the case, will be subjectively biased in the particular situation. The question of indepen­dence, in contrast, extends beyond the subjective attitude of the decision-maker. The independence of a tribunal is a matter of its status. The status of a tribunal must guarantee not only its freedom from interference by the executive and legislative branches of government but also by any other external force, such as business or corporate interests or other pressure groups.

39To summarize, the "independence" of a tribunal refers to its status and freedom to make decisions free from the influence or interference of the government, whether it be by the influence or interference of the persons who appoint tribunal members or otherwise, or that of others. "Impartiality" is personal to individual adjudicators rather than institutional to the tribunal, and tends to be case specific. Impartiality, or the lack thereof, refers to personal interests or opinions which affect an adjudicators ability to determine a dispute on its merits.

40The applicants did not allege an institutional bias or lack of independence. Their allegations were personal to me. Outside of my involvement with them in my capacity as a Vice-Chair or as an arbitrator, I have had no direct or indirect connection with any of the parties or counsel. Indeed, it was not suggested that I did, or that I have a personal interest or conflict of interest which disqualifies me. What was alleged was that I am not, or that there is a reasonable apprehension that I am not, impartial; that is, that I am personally biased.

41It is self evident that a Vice-Chair of the Ontario Labour Relations Board must not pre-judge a dispute which comes before him/her, in the sense that s/he must not hold a pre-determined view of the issues or the result. To say that the applicants, and all of the other parties, are entitled to an impartial adjudication of their complaints is to state the obvious.

42As I have already noted, this forms part of the duty of fairness (and perhaps is one of the requirements of natural justice) which all adjudicators, whether courts or administrative tribunals, owe to parties which appear before them.

43In that respect, it is essential not only that justice be done, but also that it be seen to be done. This proposition is neither novel nor difficult to understand. In Matsqui Indian Band, supra, albeit a case of institutional bias or lack of independence, the Supreme Court of Canada made the point as follows:

79This court has considered Valente, supra, in at least one case involving an administrative tribunal, Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69(1990), 1990 CanLII 132 (SCC), 68, D.L.R. (4th) 524, [1990] 1 SCR. 282, 42 Admin. L.R. 1, in which the independence of the Ontario Labour Relations Board was at issue. There, Gonthier J. stated at p. 561:

Judicial independence is a long-standing principle of our constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection

80I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties. However, I recognize that a strict application of these principles is not always warranted. In Valente, supra, Le Dam J. wrote, at p. 175:

It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. ... The essential conditions of judicial independence for purposes of s. 11(d) must bear some relationship to that variety.

I reached a similar conclusion in Généreux supra at pp. 128-29.

81The classic test for a reasonable apprehension of bias is that stated by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board) (1976) 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 at p.735, [1978] 1 SCR. 369,9 N.R. 115:

……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 [at p.677], 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly?"

De Grandpré J. further held that the grounds for the apprehension must be "substantial".

82The decision in Committee for Justice and Liberty confirms, at p.736, that a more flexible approach should be taken in applying the test for bias in the context of administrative tribunals:

The question of bias in a member of a Court of Justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.

The basic principle is of course the same, namely, that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice (1971), at p.220:

“……’tribunals' is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.

To the same effect, the words of Tucker, L.J. in Russell v. Duke of Norfolk et al., [1949] 1 All ER. 109 at p.118:

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal s acting, the subject-matter that is being dealt with, and so forth."

In the case at bar, the test must take into consideration the broad functions entrusted by law to the Board.

44Accordingly, as in the case of procedural fairness, what this fairness consists of will depend on the nature and function of the particular adjudicative body. In the Newfoundland Telephone Co., supra, decision (at page 299), the Supreme Court of Canada observed that:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgement of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

45This reflects the test in which the Supreme Court of Canada articulated in its earlier decision in Committee for Justice & Liberty v. National Energy Board (1976) 1976 CanLII 2 (SCC), 68 D.L.R. (3rd) 716, [1978] 1 S.C.R. 369 (sometimes referred to as "the Crowe case") when the court said:

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 [at p. 667], 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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly?"

I can see no real difference between the expressions 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 be related to the "very sensitive or scrupulous conscience".

This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a Court of Justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.

And see, Huerto v. College of Physicians and Surgeons, supra.

46The 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 that adjudicator.

47(Interestingly, the English House of Lords appears to have rejected the "reasonable suspicion of bias" test in favour of the "real danger of bias" test (R. v. Gough [1993] A.C. 646). In doing so, the House of Lords drew the very distinction which the Supreme Court of Canada rejected in the Crowe case, and held that the "real danger" test should be applied from the perspective of the court, not from some notional "reasonable man". Further, although R. v. Gough, supra, was a criminal case in which an allegation of bias was made against a juror, the House of Lords specified that the same test should be applied in all cases, whether the allegation concerned judges, members of "inferior" (i.e. administrative) tribunals, arbitrators, or jurors.)

48In the result, in Canada, an adjudicator who is confident that s/he will be impartial is nevertheless disqualified from hearing the matter in question if there is an objective reasonable apprehension of bias.

49It is impossible to see into the mind of an adjudicator. Accordingly, indications that a Vice­Chair, for example, is not impartial must be found in the Vice-Chair's behaviour prior to or during the hearing, in the way in which the hearing was or is being conducted, or in the decisions issued in either the particular proceeding or otherwise.

50Huerto, supra, is an example of a case in which two Saskatchewan Courts considered the conduct of that Province's College of Physicians and Surgeons and found it wanting. The comments of the trial judge sitting in review of the College's Discipline Committee commented that:

Even if this were not so, still, the analogy with judges is weak. True, the committee was acting in a judicial capacity, but that did not clothe its members with all the attributes of judges. It is perhaps immodest to say that judges are trained to disregard facts which are not part of the evidence, but doctors on a discipline committee are not.

This betrays a mistrust of what the Court apparently considered to be an actually "inferior" tribunal. In any case, it appears that the Court, both initially and on appeal, was concerned about several things. First, it held that the College's Discipline Committee had asked itself the wrong question by responding to an allegation of bias by saying that it was not actually biased and failing to consider whether there was a reasonable apprehension of bias. Second, the Court found that there was a reasonable apprehension of bias because one of the four members of the discipline committee had participated in discipline proceedings against the same doctor five years earlier. The Court also found that the committee had improperly relied on its expertise as evidence in the proceeding.

51I am not bound by the Court decisions in this Saskatchewan proceeding. To the extent that the decisions suggest that an adjudicator who has determined a dispute cannot adjudicate a subsequent dispute between the same parties, I respectfully disagree. First, there is judicial authority that that is not the case (see Kinaschuk v. Weiser (1983) 1983 CanLII 337 (BC SC), 3 D.L.R. (4th) 521 (B. C. Supreme Court); Acharya v. Newfoundland (Medical Board) (1986) 60 N.F.L.D. & PE.I.R. 339 (Newfoundland Trial Division) -neither of which were referred to by either court in Huerto, supra). Second, such an approach is impractical for a busy administrative tribunal like the Board which not only has a significant number of "repeat customers", but which in the construction industry in particular deals with many disputes between the same repeat customers. A Vice-Chair of the Board who is familiar with the parties and the industry is more likely to be able to both understand the parties' positions and why they are taking them in disputes which often have significant policy and practical labour relations elements to them, and to deal with the case in a more expeditious and economical way. Indeed, the Supreme Court of Canada has specifically recognized that quasi-judicial tribunals which regulate business activities or labour relations repeatedly have dealings with the same parties, and that neither the tribunal as an institution nor the individual adjudicators can be said to be biased merely because they have dealt with similar matters between the same parties (see, Brosseau v. Alberta (Securities Commission) (1989) 1989 CanLII 121 (SCC), 57 D.L.R. (4th) 458 (Supreme Court of Canada)).

52Further, the Huerto, supra decisions also gave little weight to the raison d'etre of administra­tive tribunals. Administrative tribunals have diverse functions and take many forms. But whatever their function or form there are two main reasons for giving exclusive jurisdiction (often with a privative clause in aid) to regulate many important aspects of modern life to an administrative tribunal like the Ontario Labour Relations Board:

1. To provide a fair and expeditious but less formal and mediation oriented forum for dealing with certain types of disputes;

2. To provide a mechanism for the speedy adjudication of disputes which have to be litigated by persons who have expertise in the field.

53The Ontario Labour Relations Board is a quasi-judicial administrative tribunal. The Board places great emphasis on mediation, and as a result many disputes which come before the Board are settled. But when adjudication is required, the Board proceeds in accordance with the rules of fairness and natural justice, and other principles applicable to a quasi-judicial decision-making process. It is therefor appropriate that the Board be held to a high standard when it comes to questions of alleged bias.

54To say this, or to say as the Supreme Court of Canada has that the appropriate standard is the same as the one which is applied to the courts, does not mean the tribunals like the Board should look or act exactly like a court. On the contrary, administrative tribunals are specifically designed not to be or act like courts, so that they are better able to fulfil their more specialized purposes. Indeed, in Toronto (City) v. CUPE, Local 79 (1982) 1982 CanLII 2229 (ON CA), 35 O.R. (2nd) 545, the Ontario Court of Appeal admonished labour relations boards of arbitration not to try to act like courts as follows:

It is, therefore, surprising to observe the extent to which arbitration awards purport to deal with complex questions of law. Many arbitration board decisions cited to us contain scholarly disserta­tions on important substantive and procedural rules applicable to judicial proceedings. They exemplify the extreme legal formalism and adherence to technical rules which overhangs the arbitration process. At best these elaborate legal studies may be irrelevant because Boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they could obscure the real issues confronting an arbitration board and confuse it in the performance of its duty. While it may be helpful for arbitration boards to seek guidance by way of analogy from established legal procedures, they risk committing jurisdictional error by rigid adherence to them.

55Of course, notwithstanding that an administrative tribunal has exclusive jurisdiction in an area, and that the courts quite rightly defer to administrative tribunals within their areas of jurisdiction (particularly when they are protected by a privative clause), the courts retain a supervisory jurisdiction to ensure that a tribunal does not overstep its jurisdiction, that a tribunal does not ignore the tenets of fairness or natural justice which are appropriate to it, and that a tribunal does not make a decision which is arbitrary or otherwise "patently unreasonable".

56The right to an independent and impartial adjudication of a dispute does not mean that parties are entitled to a Vice-Chair whose mind is a blank slate, or who sits as some sort of adjudicative sponge which sits ready to soak up whatever any party may wish to throw at him/her. Quasi-judicial proceedings are not free-for-alls. Parties are not entitled to do whatever they wish. If a party is unable or unwilling to conduct itself appropriately, a directory hand, sometimes a firm one, is required. Further, it is a natural and necessary part of the adjudicative process for a decision-maker to form impressions from the pleadings and as a case progresses. It is also appropriate for a quasi-judicial adjudicator, such as a Vice-Chair at the Ontario Labour Relations Board, to use his/her expertise to assess the evidence and arguments of the parties (although s/he must not use any such expertise as evidence in itself). As I have already noted, one of the purposes of administrative tribunals like the Ontario Labour Relations Board is to provide an expert quasi-judicial forum for determining disputes in specialized areas. Parties to proceedings before the Board are entitled to an adjudicator with an open and impartial mind, not to one with an empty or uninformed one. (Aitken v. Frontier School Div. 48 1985 CanLII 3659 (MB CA), [1985] 4 W.W.R. 323 (Manitoba Court of Appeal)). Indeed, statements which reveal preliminary or tentative impressions are not necessarily objectionable in and of themselves (550551 Ontario Ltd. v. Framingham (1991) 1991 CanLII 7388 (ON CTGD), 4 O.R. (3rd) 571 (Ontario General Division). On the contrary, properly used, such statements (or questions) can be a useful adjudicative device, and can serve to direct the attention of the parties to matters which are of concern to the adjudicator.

57In this case, there was no suggestion that I have been hostile or antagonistic to any of the applicants either inside or outside of the hearing room. There was no suggestion that any of the applicants have not been afforded a full and fair opportunity to make their case in any of the proceedings to date. There was no suggestion that took into account anything which was irrelevant or which was not before me in the various proceedings. Except for the letters referred to in paragraphs 32-34, above, which were not properly before the Board, there was no suggestion that I refused to consider (as opposed to give weight to) anything which was before the Board.

58This situation is quite unlike the one presented in Cumberland Railway Co., supra, where the Chair of a Board of Arbitration appointed by the Minister of Labour had also been the Chair of a Board of Referees under the then Unemployment Insurance Act, something which the adjudicator did not reveal to the parties. The Nova Scotia Court of Appeal held that the issues and facts in the two proceedings were substantially the same, that the adjudicator would essentially be sitting on appeal of his own earlier decision, and that he could not be expected to give new and fair consideration to evidence and argument regarding issues he had already determined. The Court concluded that the adjudicator should not have sat as an arbitrator without the express and informed consent of the parties, and in effect held that there was a "bias in law" (to borrow from the head note of the reported decision) to proceed as the adjudicator did.

59Here, the applicants made no attempt to draw any specific connection between the issues which remained to be determined in these proceedings and the issues which I have determined in any of the decisions which I have already made or participated in. Nor is it obvious on the face of the pleadings that the issues raised in these proceedings have anything to do with the matters which have already been determined, except in the general sense that they form part of the continuum of what is really one continually evolving dispute. To the extent that issues which have already been determined are referred to, they are raised as part of the relevant background to the proceedings. To the extent that they are not raised that way, questions of res judicata or issue estoppel may be raised. Although the applicants did suggest that these proceedings would merely give me an opportunity to reiterate the proposition(s) or conclusions set out in the decisions they referred to, I understood them to mean that in a sense of the central theme which they perceive in my decisions (i.e. that the members of IBEW Local 1788 should have no say in their collective bargaining future), and not in the Cumberland Railway Co., supra, sense of sitting on appeal of myself. In any event, it appears to me that the issues raised in the proceedings herein are different from the ones which have already been litigated.

60Nor is this a case like Re Batorski and Moody supra, in which the adjudicator had previously tried a police officer charged with discreditable conduct on several occasions, and in each case found against him largely on the basis of his credibility.

61It maybe that the applicants and their supporters honestly believe that I am not impartial as between them and the parties opposite. Although they conceded that that is not the test when bias is alleged, that is in fact the test the applicants would have had me apply. This reflects their subjective belief they have lost every time they have come before me because I am biased against them.

62The applicants are entitled to an impartial adjudication of their complaints. However, whether they have a subjective "sustained confidence" in that respect is not the issue. Nor is the issue whether justice is being "seen to be done" from their subjective perspective.

63As a matter of law, the test is an objective one, not a subjective one. Proceedings before the Board are adversarial. When a dispute is litigated, someone inevitably "loses". The fact that a party loses, or has consistently lost in litigation before a particular tribunal, or before a particular adjudicator, does not by itself suggest bias. If a party fails to make its case, it should not succeed. If it fails to make its case 10 (or 100) times it should not succeed an equal number of times. There is no law of averages or other principle of statistics or probability which operates in legal proceedings to increase the likelihood that a party will succeed in some proportion to the number of proceedings it is invoived in, or in proportion to how strongly it holds its views. Nor is there any kind of "broken clock theory" (whereby a 12 hour clock happens to tell the correct time twice a day notwithstanding that it is broken) which operates in legal proceedings. Legal proceedings are not like that. The result of legal proceedings is determined by the application of the relevant law and legal principles to an impartial assessment of the relevant evidence and representations of the parties in a hearing conducted in a manner which permits all parties which have a legal interest in the proceedings to participate and fully present their cases.

64In the result, I was not satisfied that the applicants have pointed to anything which on any objective analysis suggested any actual or reasonable apprehension of bias. Further, whether or not the extent of my involvement in proceedings involving the applicants is unprecedented, I was not satisfied that there was any other cogent reason for me to withdraw from these proceedings. On the contrary, the nature and evolution of the "single dispute" which these proceedings are one manifestation is itself novel, and to my knowledge unprecedented. In this context, and having regard to the Board's purpose and functions, and the manner in which the Board operates, I was not persuaded that it was inappropriate for these complaints to be determined by the same Vice-Chair.