Ontario Labour Relations Board
[1999] OLRB REP. SEPTEMBER/OCTOBER 870
4555-97-JD; 4557-97-JD; 4559-97-JD International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. The Electrical Power Systems Construction Association, Ontario Hydro, International Brotherhood of Electrical Workers, Local 1788, Responding Parties; International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, International Association of Bridge, Structural, Ornamental and Reinforcing lion Workers, Local 721, Applicant v. The Electrical Power Systems Construction Association, Ontario Hydro, Sheet Metal Workers' International Association, Local 30, Responding Parties; International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, International Association of Bridge, Structural, Ornamental and Reinforcing lion Workers, Local 721, Applicant v. The Electrical Power Systems Construction Association, Ontario Hydro, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, Responding Parties
BEFORE: Harry Freedman, Vice-Chair and Board Members J. Knight and G. McMenemy
APPEARANCES: Gary Caroline, Aaron Murphy and Jack Strickland for the applicant; M. Patrick Moran, John Bruce, John Brining, Rick Currie and Julie Hyatt for The Electrical Power Systems Construction Association and Ontario Hydro; Mark Wright and J. Wilson for International Brotherhood of Electrical Workers, Local 1788; J. Raso, John Nielsen and George Leppanen for Sheet Metal Workers' International Association, Local 30; Laurence C. Arnold, David Clark and Res Bradley for United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46.
DECISION OF THE BOARD; October 12, 1999
1During the course of the consultation in these three complaints concerning the work assignments made by Ontario Hydro, now known as Ontario Power Generation, the Vice-Chair of this panel sought the parties' submissions with respect to Board Member Jerry Knight continuing as a member of the panel. The issue arose during the course of submissions by counsel for the applicant because counsel emphasized the importance of a 1975 mark up meeting in respect of the Pickering B Generating Station and the subsequent dispute that was resolved by the Impartial Jurisdictional Disputes Board ("IJDB") in 1979. Counsel, in his submissions to us, relied on and will be relying on the brief filed by Ontario Hydro in 1979 to the IJDB in asserting that the nature of the work in dispute in these proceedings is virtually identical to the work in dispute in those 1979 proceedings.
2Mr. Knight was an official of Ontario Hydro in its construction labour relations area from before 1975 until after 1979. As a result of his background with Ontario Hydro, we asked the parties whether they had any concern about Mr. Knight's participation in these proceedings. During the course of the submissions, Mr. Knight advised that he had no involvement in either the mark up meeting in respect of the Pickering B Generating Station or the subsequent proceedings before the IJDB. All of the parties, but for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 46 ("Local 46") had no objection to Mr. Knight continuing with these three matters.
3Counsel for Local 46 advised that his client instructed him to object on the basis that there was a reasonable apprehension of bias on the part of Mr. Knight because he had been a senior official with Ontario Hydro in its labour relations area. Local 46 submitted it had concern, despite Mr. Knight's best efforts, that Mr. Knight would be unable to decide these matters just on the basis of the material filed in this proceeding without regard to any knowledge he might have had of the events that occurred at Ontario Hydro in connection with that earlier dispute. Counsel for Local 46 argued that the dispute which culminated in the IJDB proceeding in 1979 was quite significant and therefore would likely have come to the attention of Mr. Knight at the time, even though he had had no direct involvement with it.
4The test for whether there is a reasonable apprehension of bias is an objective one. See Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. In that case, the Supreme Court of Canada wrote at pg. 394:
"...the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude.'"
5In Marques v. Dylex, (1977), 1977 CanLII 1157 (ON HCJ), 81 D.L.R. (3d) 554, a case in which the Vice-Chair of the panel of the Ontario Labour Relations Board assigned to the matter was challenged on the ground of reasonable apprehension of bias, the Divisional Court commented upon the people appointed to the Board and their backgrounds at page 566-7:
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 R. v. Picard et al., Ex p. Int'l Longshoremen's Ass'n, Local 375 (1968), 1967 CanLII 637 (QC QBA), 65 D.L.R. (2d) 658 at p. 661, [1968] Que. Q.B. 301, 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 appellant. Professional persons are called upon to serve in judicial, quasi-judicial and administrative posts in many fields and if Governments were to exclude candidates on such a 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. 91(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.
Examples of where there are grounds for finding a reasonable apprehension of bias are found in Cathcart and Public Service Commission et al, (1975), 1975 CanLII 2337 (FC), 56 D.L.R. (3d) 1 at pg. 5-6:
The cases demonstrate that there are many circumstances which may show that actual bias exists, or alternatively that there are grounds on which persons may reasonably believe that bias exists or is to be apprehended. A simple case is where the person whose duty it is to decide the issue has a financial, economic or business interest in the success of one party in the litigation. In such circumstances it is often said there is a likelihood that the judicial officer "may make the cause his own". Another is where there is such a personal relationship between him and one party however founded, as to lead other persons to the conclusion that he is likely to be favourably, or unfavourably disposed, to that party's cause.
The two kinds of cases just mentioned are only example. The rule is of general application to all circumstances in which persons may reasonably believe that bias exists or apprehend reasonably that it is likely to exist.
Counsel for the respondents contended that a decision of a tribunal cannot be set aside on the ground that it has read or heard some evidence which it may afterwards hold was inadmissible. I agree, but that is not the situation here. In this instance, the whole of the respondent's case was placed in the hands of the chairman of the Board in advance of the hearing and read by her. In my view the situation is somewhat analogous to one in which a Judge has discussed a forthcoming case with counsel for one party in the absence of counsel for the other party. In such a case, if the trial or any issue in the case is brought before the Judge for adjudication, it is my understanding that the Judge should disqualify himself from hearing it. The ground for so doing is, of course, the danger that he may be biased. Similarly, where a quasi-judicial board has read and become familiar in advance with one side of the issue upon which it is required to adjudicate, there is, in my view, a danger that the board has been so influenced by what it has read that its ability to act impartially at the subsequent hearing has been impaired. In other words, there is a likelihood that it has become biased, and it should be disqualified from hearing the case.
6Those circumstances do not exist here. Mr. Knight had never been actually involved in the dispute between the applicant and Local 46 (or the international parent union of Local 46) that gave rise to the IJDB proceeding in 1979. While as an official in construction labour relations at Ontario Hydro, he was familiar with the mark up meeting process and how work was assigned, that type of background and experience are likely some of the reasons for his being appointed to the Board and, in our view, are not a basis for a reasonable apprehension of bias. Local 46 did not suggest actual bias on the part of Mr. Knight and Mr. Knight had no role in the IJDB proceeding in 1979 or in the dispute that gave rise to that proceeding. There are no grounds for having a reasonable apprehension of bias about Mr. Knight's continued participation on this panel and there is in our opinion no basis for disqualifying Mr. Knight from dealing with these matters.
7Following the Board's ruling and a short recess requested by Local 46, counsel for Local 46 advised the Board and the other parties that Local 46 was going to continue participating in these matter on the express condition that Local 46 was not waiving its right to continue with its challenge to Mr. Knight. The Board and none of the other parties took issue with the continued participation of Local 46 under that condition.
8The hearings in these matters will continue on April 12, 13, 28 and May 5, 2000, at the Board's offices, 505 University Avenue, 2nd Floor, Toronto, commencing at 9:30 a.m. before this panel of the Board.