[1997] OLRB REP. JULY/AUGUST 568
1593-96-FC; 1594-96-U; 1628-96-U National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Dover Corporation (Canada) Limited Industrial Division, Responding Party; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Limited, Applicant v. Dover Corporation (Canada) Limited, Industrial Division, Burns International Security Services Limited and Fred Collins, Responding Parties
BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF VICE-CHAIR LAURA TRACHUK AND BOARD MEMBER H. PEACOCK; July 24, 1997
This is a request for reconsideration of a decision of the Board (differently constituted) dated November 22, 1996.
The history of this matter that is relevant to this request for reconsideration is as follows. On September 17, 1996 a panel of the Ontario Labour Relations Board comprised of Vice-Chair R. Stoykewych and Board Members R. M. Sloan and P. V. Grasso commenced a hearing with respect to the above three applications. One of the applications (1593-96-FC) is a request that a first contract be determined by arbitration. The other file (1594-96-U) is an application under section 96 of the Act alleging various unfair labour practices.
The hearing concluded on October 31, 1996 and a decision of a majority of the panel (Board Member Sloan dissenting) was rendered on November 22, 1996. Board Member Sloan's dissent and an opinion by Board Member Grasso concurring with the November 22, 1996 decision were issued on January 27, 1997.
The majority's decision was relatively brief and directed that the first contract be settled by arbitration. The application under section 96 of the Act was dismissed. As a result of this decision, a strike which had been in effect for approximately six months was brought to an end.
Vice-Chair Stoykewych's full-time appointment to the Board was terminated on October 2, 1996 and replaced with a part-time appointment specifically for the purpose of finishing any cases with which he was seized.
Between October 12 and November 22, 1996 the Vice-Chair engaged in discussions with the Canadian Air Line Pilots Association (CALPA) with respect to being retained as counsel by that organization. CALPA is a trade union which represents pilots and operates solely in the federal sector. On or about November 22, 1996 the Vice-Chair entered an agreement with CALPA.
The Vice-Chair did not advise the parties to this matter of the change in his appointment. On December 4, 1996 the responding party (referred to as the "company") learned that the Vice-Chair was working for CALPA. On January 7, 1997 the company filed this request for reconsideration on the basis that there was a reasonable apprehension that the Vice-Chair was biased when he rendered his decision.
By way of correspondence dated February 25, 1997 to the Registrar of the Board, Vice-Chair Stoykewych declined to determine the request for reconsideration. In that correspondence, the Vice-Chair set out a number of facts, including those outlined above, upon which the parties have agreed to rely in this request for reconsideration.
The Vice-Chair and two other Vice-Chairs whose full-time appointments to the Board were terminated at the same time, commenced litigation with respect to the cancellation of their Orders-In-Council. In a decision dated February 11, 1997 the Divisional Court found that the revocation of the Orders-In-Council was invalid.
Correspondence was subsequently received from the parties with respect to this request for reconsideration. On the basis of that correspondence, it appeared that the facts relevant to this request for reconsideration were not in dispute. The Board therefore directed the parties to make their submissions with respect to this request for reconsideration in writing. Those submissions have now been received and neither party has requested a further oral hearing.
In its submissions, the company has included further "factual" material upon which it appears to be relying. This material is apparently part of an affidavit filed by the Vice-Chair with the Divisional Court and part of a transcript of a cross-examination on that affidavit.
Submissions of the Parties
The company argued that this is an appropriate case for reconsideration as it did not know, and could not reasonably be expected to know, the facts giving rise to its claim of a reasonable apprehension of bias prior to the Board's decision in November 22, 1996 being rendered. The essence of its argument that there is a reasonable apprehension that the Vice-Chair was biased in making his November 22 decision is that he was in discussion with a trade union with respect to future employment during the hearing and while making the decision. The company also notes that it is possible that the Vice-Chair entered his agreement with CALPA before rendering his November 22 decision as his correspondence indicates he entered that agreement "on or about" November 22. The company claims that there is no question that the Vice-Chair had entered his agreement with CALPA before the Board was functus officio as the Board Member did not issue his dissent until the end of January. The company asserts that there is a reasonable apprehension that the Vice-Chair would be biased in these circumstances. The company also claims that as the Vice-Chair did not agree with the termination of his "employment" during these proceedings, there is a reasonable apprehension that he would be biased against all employers. The company argues that its claim that there is a reasonable apprehension of bias is supported by the short reasons provided for the Board's November 22 decision. The company stressed in its reply, however, that it was not alleging real bias on the part of the Vice-Chair.
The company also claims, based on the partial affidavit included in its materials, that there is a reasonable apprehension of bias because the Vice-Chair asserted in that document that one of the reasons he was advised that his full-time Order-in-Council was being revoked was that the government perceived that there were too many Vice-Chairs with a background in representing unions at the Board.
The company relied upon the following decisions: Edwards, A Unit of General Signal, [1996] OLRB Rep. July/August 632; Regina v. Ontario Labour Relations Board; Ex Parte Hall 1963 CanLII 189 (ON HCJ), [1963] 2 O.R. 239; Committee For Justice and Liberty et. al v. National Energy Board 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716; Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69 et al. 1990 CanLII 132 (SCC), 68 D.L.R. (4th) 524; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623; Careful Hand Laundry and Dry Cleaners Limited, [1988] OLRB Rep. Dec. 1205; The Ontario Realty Corporation (ORC), [1996] OLRB Rep. November/December 998; Ottawa General Hospital 1994 CanLII 18628 (ON LA), 41 L.A.C. (4th) 344; Calgary General Hosp., etc. 29 ALTA L.R. (2d) 3; Re Miracle Food Mart, Steinberg Inc. 1990 CanLII 12824 (ON LA), 18 LAC. (4th) 257.
The applicant (referred to as the union) denies that there is a reasonable apprehension that the Vice-Chair was biased when he rendered his decision in November, 1996. It argues that the issue of whether there is such a reasonable apprehension of bias must be considered in the context of the particular tribunal. In this case, most Chairs and Vice-Chairs of the Ontario Labour Relations Board have practised labour law, and as is common in that practice, have represented either unions or employers, but not both. The union asserts that no informed member of the community would be surprised to learn that a Chair or Vice-Chair would seek to return to a labour law practice. It notes that that has indeed occurred on a number of occasions in the past. It argues that the labour relations community accepts adjudicators with such backgrounds and relies upon their oaths of office, the Rules of Professional Conduct and their personal integrity. It also notes that trade unions are not a monolithic group. CALPA has no formal ties with the applicant, and unlike the applicant, is not an affiliate of the Canadian Labour Congress, the Ontario Federation of Labour, the Metro Labour Council or any like trade union body. (These are also facts provided for the first time through the parties' submissions.) It notes that CALPA is active only in the federal sector and has no status as a trade union under Ontario legislation. There is no nexus between Mr. Stoykewych's retainer and the parties, the tribunal, or the subject matter of the dispute.
The union also argued that the company's counsel became aware of the Vice-Chair's change in status during the course of the hearing and did not raise any objection at the time. According to the union, the company has therefore waived its ability to make this bias objection. The union denies that the Vice-Chair should have awaited the dissent before accepting the retainer with CALPA as it is quite possible it would not be issued. Under the Board's system of tripartite decision-making, the Vice-Chair had made his decision when he released it, as it indicates that the Board Member's dissent would follow. The union also asserts that it is relevant that the Vice-Chair's relationship with CALPA is a retainer, not an employee relationship. It denies that the Vice-Chair's own litigation gives rise to an apprehension of bias against employers in general.
The union also argues that the request for reconsideration is untimely, as even by its own assertion, the company knew the relevant facts with respect to the Vice-Chair's situation on December 4, yet waited until January 7, 1997 to make its request. In the meantime, the parties proceeded to hearing on a back-to-work protocol (a fact raised for the first time in the submissions). It denies that the limited reasons provided by the Board are any indication that it was biased in making its determination.
In reply, counsel for the company denied that he was aware of the Vice-Chair's change in status during the hearing. The company also denies the other submissions made by the union and it claims that the Vice-Chair may conceivably rely upon his own decision in a future case involving CALPA and that that is an example of why there is a reasonable apprehension of bias.
Decision of the Majority
The Board accepts that the facts upon which the company relies in this application for reconsideration did not come to its attention and could not have been expected to come to its attention through due diligence prior to the Board's decision of November 22, 1996. The Board is therefore prepared to consider the company's motion that there is a reasonable apprehension that the November 22, 1996 panel was biased. However, having carefully considered the submissions of the parties, the majority has concluded that there is no merit to the company's claim of an apprehension of bias.
The Board is subject to a high standard when it comes to matters of bias or its perception. In the Ontario Realty Corporation (ORC), (supra, at paragraphs 40-44), the Board explained this high standard as follows:
As the respondents point out, the Board is charged with the responsibility of supervising labour relations in the province. This requires the Board to make decisions with significant consequences for commercial, individual and collective rights. The Board's decisions are protected by a privative clause. Judicial deference to the Board's particular expertise is well entrenched in the jurisprudence. For most purposes, the Board's decision of an issue is the final one. These factors alone in my view would require a strict standard against which to measure perceptions of bias.
There is also a very real sense in which the nature of the Board's subject matter demands that parties are able to hold the Board to a high standard of neutrality. The statutory scheme set out in the Act assumes that, on one level, the interests of management and labour are explicitly in conflict. This assumption lies at the heart of notions of inclusion or exclusion, whether a person is an employee for purposes of the Act, or alternatively, excluded from collective bargaining because his or her interests lie with management. The scheme of the Act anticipates that these parties whose interests are in conflict, will live with each other in long term relationships.
The legislation provides necessarily for a neutral third party in the person of the Board or, in some cases, as arbitrators. The neutral's job is to enforce and supervise the long term "management and labour" relationships that are inherently characterized by a degree of unavoidable conflict. The job cannot be done if one or both parties apprehend that the neutral is partial, or "interested" in the way in which the relationship is managed or supervised. Without the parties' trust in its "lack of bias", the neutral will fail in its responsibilities. If this happens, the statutory scheme will not work. Parties may in this case, look beyond the statute for other means by which to influence and pressure each other.
On this analysis, the advantages of holding the Board to a high standard, as the respondents suggest, are obvious. What of the disadvantages? The immediately apparent one is that the application of this standard requires a declaration of potential conflicts between adjudicators and parties on a broad scale. The circle of proscribed knowledge or relationships, is drawn larger rather than smaller. It is unlikely, however, that this apparent disadvantage has in the past, or will in the future, prevent the Board from doing its job.
Having regard to these considerations. I accept the respondents' submission that, on issues of bias and its perception, the Board should be held to a high standard.
The Board therefore acknowledges the necessity that there be no reasonable apprehension of bias in its decision making. However, the circumstances surrounding the Board's determination of this application do not violate that standard.
The Vice-Chair completed the hearing in this matter and issued the November 22 decision while he was properly appointed by an Order-in-Council and subject to the same oath of office he was subject to when he commenced the hearing. His Order-in-Council specifically directed that he finish the matters upon which he was seized. The Lieutenant-Governor-in-Council therefore appears to have had no concerns with his ability to continue to adjudicate cases. Nevertheless, the company claims that there was a reasonable apprehension that the Vice-Chair was biased when he concluded the hearing and the majority rendered its decision because he had engaged in discussions with, or had entered into a remunerative relationship with, that trade union before he issued his decision. Alternatively, it claims there was a reasonable apprehension of bias because he had entered into an employment or retainer relationship with a trade union before the Board Member had issued his dissent. The majority does not agree that "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." (see Careful Hand Laundry (supra, at pg. 9). Or, as the Supreme Court of Canada has articulated it, the facts do not "give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined..." (see National Energy Board (supra, at pg. 733).
The organization with which the Vice-Chair was in discussion, and with which he ultimately entered into a remunerative relationship, has no relationship to any party in this proceeding. It has never even been a party to any proceeding of this Board because it operates strictly in the federal sector. These facts are significantly different than those in any of the decisions referred to by the company. In all of those decisions, the adjudicator in question was identified in some way with one of the parties or with a particular issue to be decided upon. In Regina v. Ontario Labour Relations Board; Ex parte Hall (supra), the Board member in question was actually the president of an organization of trade unions of which one of the parties was a member. He had also taken an oath of office upon obtaining that position which required him to promote the goals of that organization. It is noteworthy that the court in that decision did not seem to be concerned by a situation in which a Board member was a member of any trade union (see page 246). In National Energy Board (supra), the apprehension of bias arose because one of the members of the Commission had been involved in a study which gave rise to one of the competing applications before it. The Commission member therefore had been associated with an issue he had to decide, as well as being associated with the equivalent of a "party" (see page 730). Re Consolidated Bathurst does not deal with a question of an apprehension of bias and is presumably included for the principle that the Board is subject to the principles of natural justice, a claim about which there can be no dispute. In Newfoundland Telephone Company (supra), the Board Member actually spoke publicly about an issue that was before the Board to decide. In doing so, he clearly expressed a view before the Board had made its decision. There is absolutely no similarity between those facts and the facts of this case. In Careful Hand Laundry (supra), one of the parties brought a motion to have the Vice-Chair hearing the matter disqualified because of a reasonable apprehension of bias because she had commented on the nature of the evidence that the parties would have to deal with in order to succeed with their case. The Board did not find that there was a reasonable apprehension of bias, and in any case there are no allegations that anything similar occurred in this case. As noted, the Ontario Realty Corporation (ORC) (supra) decision stands for the proposition that the Board is subject to a high standard with respect to questions of bias and apprehension of bias. That is a principal about which there can be no doubt. In Ottawa General Hospital (supra), the arbitrator withdrew from the hearing because his wife was an employee of the party employer. In Calgary General Hospital (supra), the Board Member was an employee of the parent union of one of the parties. Again it is not alleged that the Vice-Chair in this case has any association with either of the parties. Finally, in Re Miracle Food Mart (supra), the arbitrator withdrew because his law partners were involved in litigating the same issue before the courts as gave rise to the grievance before him. His law partners were taking the same position as the employer in the arbitration. It is noteworthy that no one suggested that the arbitrator was biased merely because he was a partner in a law firm which represents employers in labour and other matters.
The facts of this situation do not approximate the facts of any of the above cases and do not give rise to a reasonable apprehension of bias. While there is no question that Vice-Chairs of the Ontario Labour Relations Board are subject to a high standard of neutrality and the appearance of neutrality, the Board is not a court and that "appearance" must reflect the context in which the adjudication of labour relations matters takes place in this Province. The company is urging the Board to find essentially that because the Ontario labour relations bar tends to represent either trade unions or employers, and the Vice-Chair was in discussions with, or had accepted a position with, a trade union prior to issuing his decision, there is a reasonable apprehension that he would give a biased decision in this matter. There is simply no basis to find that the Vice-Chair was tainted by any such "bias in the air". He had no association with these parties or the issue upon which he was deciding. The Ontario Labour Relations Board is an expert tribunal. It acquires its expertise because its Vice-Chairs and Board Members have labour relations experience. That expertise is not synonymous with bias. It has always been understood that Vice-Chairs adjudicating at the Board under an oath of office are applying their experience in a neutral fashion. In Dylex Ltd. v. Amalgamated Clothing and Textile Workers (1977) 77 CLLC 296, an allegation of a reasonable apprehension of bias was raised because the Vice-Chair had had a somewhat recent association with one of the parties appearing before him. The Court stated:
[Bias not established]
In looking at the cumulative effect of the factors relied upon by counsel for the employer there are certain other factors which have to be weighed in the balance. They are as follows. The vice-chairman had nothing to do with any aspect of the present proceedings, as part of his association with the law firm or otherwise, and neither did the law firm itself during the currency of his association with it. Over a year had elapsed since he had anything to do with the union, or more correctly, one of its predecessors. Almost a year had elapsed since his connection with the law firm terminated.
Further, on a more general plane, the nature and functions of the Board itself have to be regarded. The fact that a judge in similar circumstances would not, I would think, have heard the case is not determinative. (In saying this I am not expressing an opinion on minimum legal standards.) We can take judicial notice, if it is not apparent from The Labour Relations Act itself, that members of the Labour Relations Board and in particular the chairmen of panels will have had experience and expertise in the law and labour relations. The Government of Ontario looks to people with such a background in making appointments. Most, if not all of those appointed, are bound to have some prior association with parties coming before the Board. In this connection the remarks of Mr. Justice Hyde in Regina v. Picard et al, Ex parte late p-national Longshoremen (1968), 1967 CanLII 637 (QC QBA), 65 D.L.R. (2d) 658 at p. 661 [68 CLLC ¶14.124] are apposite:
The only basis for any apprehension of bias submitted by appellant is that Commissioner Picard had been consulted more than a year before his appointment as Commissioner by Aluminum Limited which is a company which controls one of the parties before the Commission, namely, the respondent Saguenay Shipping Ltd. ... I am quite unable to anticipate a biased approach by Commissioner Picard on the ground raised by the appellant. Professional persons are called upon to serve in quasi-judicial and administrative posts in many fields and if Governments were to exclude candidates on such ground, they would find themselves deprived of the services of most professionals with any experience in the matters in respect of which their services are sought.
Such people, having taken an oath of office (The Labour Relations Act, s. 9 1(18)) and, at least in the case of trained lawyers, being conscious of the necessity of ridding their minds of extraneous matters, it is not unreasonable to assume that they, in exercising their jurisdiction, will act in good faith.
In this case, the fact that the Vice-Chair had discussions with a trade union or accepted a job with a trade union at or about the same time as the majority decision was issued does not mean that he was suddenly incapable of applying his expertise in a neutral fashion. The mere fact that the adjudicator was intending to represent a trade union with no relationship to the dispute in other matters, in the future, in another jurisdiction, cannot be perceived as diminishing his ability to adjudicate this matter in a neutral manner as directed by the Lieutenant Governor in Council.
The company also argues that the fact that the Vice-Chair had commenced his relationship with CALPA before the dissent was issued is an indication of an apprehension of bias or a failure of natural justice. It is not uncommon for a majority decision to be issued prior to a dissent if there is some expectation that the dissent may not be issued for some time and time is of the essence. In this case the Act requires the Board to issue decisions with respect to first contract applications expeditiously. It was therefore not only appropriate but necessary for the majority to issue its decision. Furthermore, the limited reasons provided for the majority's decision in this matter are not reflective of any bias but of the time frame in which such decisions must be rendered by statute.
The company also claims that the Vice-Chair's account of what he was told about the circumstances of the change in his Order-in-Council which is included in the portion of his affidavit in the materials gives rise to a reasonable apprehension of bias. The majority does not find anything in this hearsay "evidence" which can support such a claim.
For all of the above reasons, the majority declines to grant the request for reconsideration of the Board's decision of November 22, 1996.
DECISION OF BOARD MEMBER JAMES A. RONSON; July 24, 1997
- It is my decision that we should set this matter down for an open, public hearing. I am obliged to Mr. J. Richard Finlay, whose opinion piece in The Financial Post of July 16, 1997, has been of assistance. Mr. Finlay is chairman of the Centre for Corporate and Public Governance, and he opined, in part:
"Why do good people so often find themselves ensnared in situations that cause such personal and professional distress? Several reasons come to mind.
First, perception and reality are often confused. If there is no real conflict of interest, there is no real problem - right? Wrong In matters of public ethics, which is just about anything in which the public has a stake, perceptions are everything. The idea is not new. Like Caesar's wife, who had to be above suspicion, and justice, which must be seen to be done, there must be nothing that gives rise to even the appearance of a conflict of interest when the public's business is involved."
- The procedural path chosen by my colleagues in arriving at their decision allows the perception that this Board is protecting one of its own from the rigours of cross-questioning and that it does not wish to have one of its friends dragged through the mud. I think we should never consciously allow the Board to find itself in such a situation.