2158-00-R Brick and Allied Craft Union, Local 5, Applicant v. International Union of Bricklayers and Allied Craftworkers, Local 6, Responding Party v. Hyde Park Masonry Limited, Intervenor.

1072-00-G Brick and Allied Craft Union of Canada, Local 5, Applicant v. Hyde Park Masonry Limited, Responding Party v. International Union of Bricklayers and Allied Craftworkers, Local 6, Intervenor.

1357-00-U Brick and Allied Craft Union of Canada, Local 5, Applicant v. Hyde Park Masonry Limited, International Union of Brick and Allied Craftsmen, Local 6, Luciano Mascarin and Erni Bortolussi, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; November 21, 2000

1. This decision deals with a motion by the applicant that I step down from hearing this application. It does so on the basis that it submits that there would be a reasonable apprehension of bias if I were to sit as Vice-Chair on this matter. This motion was opposed by the responding party trade union (the International Union of Bricklayers and Allied Craftworkers, Local 5 or “IUBAC Local 5”) and the intervenor International Union of Bricklayers and Allied Craftworkers (“IUBAC” or “the International Union”). The responding party employer (Hyde Park Masonry Limited (“Hyde Park”)) did not attend the argument of this motion, although it was present on the first day of hearing.

2. The first issue raised by the applicant is whether I or a different Vice-Chair (or the Chair or Alternate Chair of the Board) should hear this motion. He submitted that I should step down at least for the purposes of this motion to allow someone else to deal with it. I declined to do so. My reasons for doing so were these. The question of reasonable apprehension of bias is an objective standard. No adjudicator should have a personal investment in the issue, and I do not feel one in this case. Indeed, as I suggested to counsel, if he were concerned about personal feelings clouding the judgement of the person hearing the motion, a concern about my ability to deal objectively with comments directed about my situation should be no higher than a concern about the collegial deference towards another Vice-Chair about whom things are said which might be taken as personally critical.

3. In later submissions, counsel for the IUBAC and Local 5 pointed out that in the caselaw they had reviewed such a process had never been adopted. That is, in practice, arguments about a reasonable apprehension of bias were brought either before the judge or adjudicator whose presence allegedly raised the apprehension, or before an appellate or reviewing court when the matter was raised for the first time by way of appeal, judicial review or prohibition. No counsel could point to a case where an adjudicator or judge presided over a motion to require a fellow judge or adjudicator sitting at the same level in a judicial or administrative hierarchy not to hear a matter.

4. The only decision cited which discusses any sort of rationale for this practice is Marchand (Litigation guardian of) v. Public General Hospital of Chatham [1999] O.J. No. 670. at paragraph 13-14. In that case a trial judge was asked to stand down from the determination of costs after a 165 day trial, over 1000 pages of written submissions and a 733 page decision on the grounds of a reasonable apprehension of bias. He declined to do so and determined the question of a reasonable apprehension of bias himself, partly on the grounds that for another judge to do so would require that judge to review the entire transcript of the trial. This matter took 15 days of hearing time, in part because the parties were able to agree on a large volume of documentary evidence. However, there is no transcript. To hear and determine the applicant’s motion would require a Vice-Chair to rehear the entire case, although it would then be impossible to compare it to what had happened in the first hearing, unless further evidence were called as to the perceived differences between what happened at the two hearings.

5. The applicant is Brick and Allied Craft Union of Canada, Local 5 (“BACU, Local 5”). It is one of a number of locals in the Brick and Allied Craft Union of Canada (“BACU”), all of whom are represented in a number of applications before the Board. The BACU is engaged in a longstanding dispute with the IUBAC. Indeed, at the risk of over-simplification, BACU claims to have sprung from the Ontario Provincial Council (“Old OPC”) of the IUBAC, to be the Old OPC in a different form, or to be the successor of the Old OPC, or to be entitled to be the successor of the Old OPC. The BACU includes in its supporters the leadership of 11 of the 14 locals of the IUBAC in Ontario. The eleven locals of the BACU make the same claim with regard to their relationship with their corresponding local of the IUBAC as the BACU does with respect to the Old OPC. Three locals of the IUBAC are opposed to the BACU. One of them is IUBAC, Local 5. All three groups of unions are represented by the same counsel in these disputes. Counsel for the applicant indicated that he would make the same motion in other cases involving disputes between his client and the other two union parties if I were appointed Vice-Chair to sit on any one of them. There are a number of outstanding applications at the present time, not all of which have reached the hearing stage.

6. The first issue to be dealt with in this case is described in a decision of the Board in this file dated October 24, 2000 in this matter. Essentially, the issue is whether or not the Board should declare that BACU Local 5 is the successor to IUBAC, Local 5. IUBAC Local 6 and the International Union argue that the issue has already been decided in a decision of the Board in which I sat as a single Vice-Chair (Board File 2784-98-R, the “Jaddco decision”). The applicant asserts that it has not been so decided. In the October 24 decision and orally I set that argument down for hearing to be decided as part of the first issue in this case. Res judicata may be argued as part of that issue, but I indicated in the decision and orally that all evidence and argument with respect to the entire successorship issue would be heard.

7. The test for identifying a reasonable apprehension of bias is one about which there is little controversy. Counsel all agreed that the test as set out in R. v. S. (R.D.) (1997), 1997 CanLII 324 (SCC), 151 D.L.R. (4th) 193 (SCC):

In that case, L’Heureux-Dubé and McLachlin JJ. described the test at p. 207:

The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, 23 C.C.C. (3d) 193, 24 D.L.R. (4th) 161; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, 64 C.C.C. (3d) 513; Ruffo v. Conseil de la Magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267, 130 D.L.R. (4th) 1. De Grandpré J. stated, at pp. 394-95:

… 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 … [T]hat 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 [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

The grounds for this apprehension must, however, be substantial and I … [refuse] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

Cory J. elaborated on the test as follows:

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 (QL) (H.C.J.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (QL) (S.C.), at para. 34 [summarized 27 W.C.B. (2d) 199].

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegation. Yet, this is a serious step that should not be undertaken lightly. [p. 229-231.]

8. That test applies, in context, to a Vice-Chair of the Ontario Labour Relations Board. On a personal level, a Vice-Chair must meet the same high standards of personal integrity and honesty that characterizes judges of the Superior Court of Justice. Nothing less will do. However, the question of reasonable apprehension of bias includes a question of context. That is, the reasonable and informed person is one who is aware of the context in which the Board operates and the specialized nature of its mandate. This is certainly appropriate on the test as articulated by the applicant. Indeed, the applicant argued that a reasonable and informed person would be one who, among other things, is familiar with all of the Board’s decisions among these parties, understands that these decisions have a broad impact in the construction industry, understands that sections 145-150 are unique in North American labour statutes, and that the actions of his client were “part of the evolving pattern of union development in Ontario”.

9. In International Brotherhood of Electrical Workers, [1997] OLRB Rep. Nov. 1005, the Board in dealing with a similar motion stated as follows:

10. I 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. & P.E.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)).

11. Similarly, the Divisional Court in Re Marques et al and Dylex Ltd. et al. (1977) 1977 CanLII 1157 (ON HCJ), 18 OR(2d) 58 stated at p. 70 as follows:

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 International 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 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. 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 …

11. The applicant argued that there were four grounds on which a reasonable apprehension of bias would arise. He argued that cumulatively they raised a reasonable apprehension of bias, although some were strong enough to raise such an apprehension independently. I will deal with them in reverse order of his argument.

The Personal Professional Background of the Vice-Chair

12. The applicant asserted that my personal professional background gave rise to a reasonable apprehension of bias. The applicant pointed out that I practiced law for nineteen years before being appointed to the Board in April of 1999. Some of my clients were international unions. The IUBAC was never a client of mine or of the firm in which I was a partner. In a number of disputes arising from the “Bill 80” sections (i.e. sections 145-150) of the Act, I did act for international unions. The applicant asserts, and I accept, that these provisions did provoke strong feelings and disputes among members of many trade unions in Ontario. The applicant submitted that my association with international unions in the practice of law raised a reasonable apprehension of bias some eighteen months after I was appointed to the Board.

13. There is, of course, a difference between a lawyer and the client whose case he or she advances. Counsel must advocate his or her client’s case as vigorously as possible, but it is not a requirement that counsel be personally associated with or personally committed to his or her client’s cause. Indeed, in many contexts, it is a violation of the rules of professional conduct for a lawyer to assert a personal belief as to the justice of his client’s cause. The reasonably-informed individual to whom one looks for a reasonable apprehension of bias would be aware of that distinction.

14. I acknowledge that that distinction is not a universally held belief. There are counsel who feel that their professional work must lead them to represent only causes in which they have a personal belief and commitment. This often leads to dedicated counsel who are passionately committed to the causes they champion. While this is not universally accepted as the proper role for a lawyer, there is frankly much to be admired in this approach. The applicant did not suggest, however, that my practice was marked by any such admirable qualities.

15. In cases where courts have found a reasonable apprehension of bias arising from the activity of a judge or adjudicator outside of the hearing or trial room, they have done so in cases where the adjudicator is: (a) involved in the issue simultaneously with his or her hearing of the matter before him or her and (b) personally involved as a litigant or complainant in the other matter. (See The Great Atlantic & Pacific Company of Canada Limited and Ontario Human Rights Commission, et al (1993) 1993 CanLII 8616 (ON CTGD), 13 O.R. (3d) 824 and Benedict v. Her Majesty the Queen in Right of Ontario [2000] O.J. 1013.

16. The furthest reach of this doctrine is suggested in The Great Atlantic & Pacific Company, supra. In that case the Divisional Court stated:

During the course of argument, we advised counsel that we did not think it necessary to decide whether Ms. Backhouse’s public advocacy in favour of the same position advanced before her by the Commission in relation to systemic sex discrimination went so far as to create a reasonable apprehension of bias in relation to this case. Rather, we told counsel that for the purposes of determining this issue, our attention was focused only upon the fact that Ms. Backhouse’s involvement in the proceedings outstanding before the Commission in which she was, at the relevant times, one of the complainants.

The applicant relied only on my activities as a lawyer prior to my appointment. Indeed, as a full-time Vice-Chair of the Ontario Labour Relations Board, it would be entirely improper of me to be involved in any advocacy with respect to any issue which relates to the work of this Board or the statutes which the Board administers.

17. In Re Marques and Dylex Ltd., supra, Divisional Court said,

No case has been brought to our attention in which a prior professional association with a party has been held to be a reasonable apprehension of bias nor has any case in which a prior professional relationship with one of the counsel, which has led to this result. (p.69)

Similarly, counsel were unable to point to any case which suggested that the general type of some of the clients for whom a judge or adjudicator had acted in the past raised any sort of reasonable apprehension of bias.

18. BACU Local 6 and IUBAC argued that the applicant had not raised the issue of a reasonable apprehension of bias at the earliest opportunity. They pointed out that the applicant, or other iterations of the BACU or its locals, did not object to my sitting as a Vice-Chair in the Jaddco decision initially, nor in another case involving the pension fund of officers of the union in Canada: International Union of Bricklayers and Allied Craftworkers [1999] OLRB Rep. July 628 (the “Trustees case”). There was one day of hearing in this case before the motion was raised, although I do not think that is significant, given the Jaddco decision was released just a few days prior. However, if my personal professional background raised a reasonable apprehension of bias, presumably it would have raised that same apprehension in the BACU’s mind well over a year before this motion was made. As well, the applicant made much of the fact that before the Jaddco decision it had been successful in twelve different applications before this Board and in court and unsuccessful in only one of them. I was, of course, the Vice-Chair in one of those successful applications (the Trustees’ case mentioned above).

19. To be fair, the applicant only suggested that this issue is one factor in an accumulation of factors. However, I am not persuaded that any reasonable apprehension of bias would arise from my personal professional background from the time prior to my appointment to this Board.

A Previous Administrative Decision

20. Counsel referred to an administrative decision I had made in another file involving some of these same parties. Board File 1905-99-U was re-listed for hearing commencing November 27, 2000. On October 12, 2000, after receiving that notice of hearing, counsel for the BACU wrote to the Board’s Registrar stating as follows:

On October 3, 2000, we received a Notice of Hearing for November 27^th and November 28^th, 2000.

On November 29, 1999, the Board adjourned this matter sine die and Vice-Chair McKee remained seized of the application for the purposes of scheduling only.

We did not receive a letter from the Applicants requesting that this matter be brought back on for hearing.

It appears that the Vice-Chair has brought back a section 96 application against our clients on his own motion, when the Applicants themselves were content to let the matter stand adjourned sine die.

We respectfully request the Board to confirm that this is what in fact has happened. If our conclusion is incorrect, we request the Board to advise us exactly how this application against our clients came to be relisted when the Applicants themselves did not request it to be.

We will consider an appropriate response once the Board confirms what has occurred in the scheduling of this application.

In response to that letter, I issued the following decision which I reproduce here in its entirety:

1. Counsel for the responding parties has written to the Board requesting an explanation of the scheduling of this application. Generally, inquiries about scheduling are addressed, on a more informal level, to the Registrar, who is the person who does the actual scheduling. However, since this application is one of a number of cases involving the same parties, the Board will endeavour to explain to counsel the sequence of events.

2. On November 24, 1999 the Board issued a decision in Board File Nos. 1904-99-U and 2784-98-R. In that decision the Board set out the issues which would next be dealt with in those files. The Board also had before it a number of other applications dealing with similar or related issues arising out of the same facts as the ones underlying Board File Nos. 1904-99-U and 2784‑98-R. As the Board said in a decision of November 25, 1999 in those two files:

3. There are many files before this Board in which some aspect of this dispute arises. The one issue which underlies, or is an essential component of these applications is the status of the BACU. Some files approach the issue as the central one to the application. Other files appear to be applications made where the facts giving rise to the application appear to be little more than a platform on which to litigate the issue. As well, the status issue arises in certification applications, grievances and jurisdictional disputes which are not directly related to this dispute at all. Extensive efforts by officers and Vice-Chairs of the Board and by others outside the Board have failed to assist the parties in resolving the dispute. It is apparent at this stage, at least, that the matter cannot be resolved short of litigation.

4. In this application, as well as a number of other applications, the Board examined the files to determine the most efficient use of the time and resources of the Board and the parties. In this application, as in a number of others at the same time, the Board issued the following decision:

For the reasons set out in a decision in Board Files 2784-99-R and 1904‑99-U dated November 25, 1999, this application is adjourned sine die. It is expected that the decision in those applications will determine at least one of the fundamental issues in this application, and one which would need to be determined before this application could be disposed of in any event. I will remain seized of this application for the purposes of scheduling only, following the conclusion of the “status” issue in Board Files 2784-99-R and 1904-99-U or any (at the moment unanticipated) request that the Board do something prior to that date.

4. This was not a decision made at the request of any of the parties. It was made on the Board’s own motion as a way of maximizing the efficiency of the Board’s time and resources and those of the parties. Normally a party which files an application will expect that the Board will process it in the normal course. When the Board determines not to do so, the applicant is entitled to an explanation as to the reasons for doing so.

5. In fact, the applicants in another file that was adjourned in a manner similar to this one requested that the other application proceed notwithstanding the Board’s decision. The Board in fact did schedule a hearing in Board File No. 1715-99-U. No such request was received in this file and so the matter remained adjourned on the basis set out in the decision.

6. The Board released its decision in Board File Nos. 2784-98-R and 1904-99-U on September 15, 2000. That decision resolved the issues (or most of them) set out in the November 24, 1999 decision. This application, along with a number of other applications which had been adjourned on the same basis, was put before the same panel of the Board which had adjourned them in the first place, in accordance with the last sentence of that decision. This was done because the Board employs a “tickler” system, similar to that used in any law office to “bring forward” a file that the Board has decided not to act on until the occurrence of a certain event.

7. The Board did this because it was the Board’s own decision not to proceed with the application in the normal course. When the parties themselves have agreed to adjourn a proceeding the Board generally waits for them to ask the Board to reschedule the matter before doing anything. That is because the basis of the adjournment was the decision of the parties. The Board leaves it up to them to decide what is appropriate in terms of how and whether to advance the claims set out in an application. It involves no time and very few resources to leave a file sitting on a shelf. On other occasions, the Board will specifically ask for the submissions of the parties where it is not clear whether and how to proceed. In the September 15, 2000 decision, for instance, the Board directed the parties to advise the Registrar how they wished to proceed, although the Board determined that the two files would proceed separately. Counsel for the applicant in Board File No. 2784-98-R requested that the matter be relisted. The application has been relisted by the Registrar for hearing on November 9, 2000. No such request was received in respect of Board File No. 1904-99-U, and it has not been relisted.

8. In this application, the September 15, 2000 decision had resolved the issue which was the basis of the Board’s original decision to depart from its normal practice. It was therefore appropriate to review the file at that time. There was no reason at that point to depart from the Board’s normal practice to schedule matters in the normal course. No party had written to the Board suggesting that any other course of action was appropriate. The file was returned to the Registrar with instructions to list the matter for hearing in whatever manner he saw fit. That is the Registrar’s job. This panel was not and is not seized of this application. If counsel has any questions about the scheduling of this matter, such inquiries should be directed to the Registrar, who will no doubt be of assistance to counsel, as is his invariable practice.

9. Should any party have any other views on the scheduling of this application, they should feel free to address them to the Board. If the parties reach an agreement with respect to scheduling, it is likely that the Board will accommodate them if possible. Otherwise, this application will proceed on the dates scheduled by the Registrar.

There is nothing more which needs to be said about this decision. In my view, it does not raise a reasonable apprehension of bias.

Findings of Fact

21. The applicant also raised an issue of what it said were erroneous findings of fact made in the Jaddco decision. These included:

(1) adverse findings of credibility against witnesses called by the BACU in that case (paragraphs 46 and 68);

(2) incorrect findings of fact (paragraphs 30 and 71);

(3) a finding of fact which was based on no evidence before me (paragraph 65); and

(4) the analysis found in paragraphs 68, 122 and 146 which, it said, ignored an undertaking given by the BACU during the course of that proceeding and failed to make reference to section 147 a sufficient number of times.

22. This argument is not one with which I will deal in detail as none of these issues are the basis of a reasonable apprehension of bias argument. Aside from his vehement disagreement with the findings made, counsel was unclear as to how these alleged errors could give rise to a reasonable apprehension of bias. He was unable to articulate any reason why these alleged “errors” could lead a reasonable person to apprehend that the motive for such decisions was a bias in favour of the IUBAC or against the BACU. Except perhaps for the finding of fact at paragraph 30, these findings of fact reflect, to some extent, the submissions of the responding parties and reject the submissions of the applicant. The fact that an adjudicator does not accept every submission a party makes does not lead reasonably to the conclusion that the adjudicator is biased against that party.

23. If the applicant suggests that there are findings of fact which were made without evidence or that certain findings are patently unreasonable, the applicant is free to argue that in an application for judicial review. Indeed, the applicant has indicated that one will be filed in respect of the Jaddco decision. Assuming that the applicant is successful in that application, such success itself would not be a basis for a reasonable apprehension of bias.

24. If he suggests that the quality of decision-making is so low as to be beneath the standard to which the applicant is entitled, that too is a matter more appropriately addressed elsewhere.

25. Beyond that, there is no need to comment further. This is not an application for reconsideration of any of these issues under section 114 of the Act in the Jaddco decision. To comment on the substance of his argument with respect to these findings would be, in effect, to offer unsworn testimony, or worse yet, advocacy, in an upcoming application for judicial review. That would be improper. For the purposes of this motion, my mind (and my conscience) are clear on the subject, and nothing urged in argument by the applicant cause me to doubt that belief.

Discretion

26. The issue which counsel described as his “main” reason for asserting that a reasonable apprehension of bias arises in this case, is one which arises from the manner in which the Board’s discretion under section 68 was exercised by me in the Jaddco decision. This was an issue he argued in several ways.

27. To the extent that the assertion is that my exercise of the Board’s discretion was motivated by a bias against the BACU or in favour of the IUBAC (it is not clear to me that counsel did make that argument in that branch of his submissions), I will not deal with it here. Such an assertion (if that is what was made in this case) is an assertion of actual bias rather than a reasonable apprehension of bias. That is a ground for judicial review or an application for prohibition unprotected by any privative clause. It is inappropriate for any other than a reviewing or appellate court to deal with that sort of allegation.

28. The applicant argued that I exercised the Board’s discretion under section 68 in favour of a party which had broken the law (the IUBAC) and against a party (BACU) which had followed the law. In the applicant’s submission, such an exercise of discretion promotes lawlessness. He advised the Board that the International Union had imposed another receivership on his clients which is the subject of yet another application under sections 147, 149, and others. The applicant argues that the Board granted relief to the International Union in the Jaddco decision and simply told the BACU that it would have to await the outcome of another decision (File 2532-98-U) for any relief. In the applicant’s submission, to exercise a discretion in favour of law-breakers is simply wrong.

29. Again, it is difficult to know how this argument has anything to do with a reasonable apprehension of bias. It is also ill founded. First, the Board’s discretion was not exercised in favour of the International Union in the Jaddco decision. I declined to exercise the Board’s discretion under section 68 to grant the declaration sought by the BACU. The International Union may well have been pleased by the result. But that is not the same as exercising a discretion in favour of the IUBAC. Second, counsel was unable to provide me with any authority for the proposition that one party has been found to have violated a statute in one or several related applications, the other party who is the victim of such unlawful behaviour is entitled to whatever relief it seeks in another application.

30. Second, the applicant asserts that the analysis of the Board’s discretion under section 68 found in paragraphs 133-140 of the Jaddco decision is contrary to previous Board decisions on point (including those cited in those paragraphs) and is simply wrong. If this interpretation of the statute is patently unreasonable, the applicant’s relief lies elsewhere. In the context of this motion, it can only be an assertion that I developed a new and different interpretation of the Act because of an actual bias. Again, actual bias is a matter for judicial review or an application for prohibition, not a motion before me asserting a reasonable apprehension of bias.

31. Third, the applicant asserted that the entire case could have been decided on the basis of the effect of section 147(5) and that there was no need to comment at all on the other issues dealt with in the decision, including the applicant’s claim to be the successor under section 68. Since the applicant raised these issues, and all parties led evidence and made full argument on them, it is difficult to understand how rendering a decision on them gives rise to a reasonable apprehension of bias. There was no reason not to give the parties a decision on an issue they had brought to the Board for determination.

32. Fourth, the applicant asserted that because I had exercised my discretion under section 68 in the manner in which I did in the Jaddco decision, I would do so again in this case, if for no other reason than to be consistent with my previous decision. The International Union and BACU, Local 6 have asserted that the issue in this case is that the issue of whether or not IUBAC, Local 5 transferred bargaining rights to BACU, Local 5 is res judicata. Having regard to paragraph 150 of the Jaddco decision, that is not immediately apparent to me, but that is a matter that they will argue when the case resumes. If it is res judicata, it would be so for any panel of the Board hearing the case.

33. To the extent that the applicant argues that I have effectively pre-judged the issue in the manner in which I exercised the Board’s discretion in the Jaddco decision, even if it is not res judicata, it misidentifies the issue. The issue in this case is whether the Board should declare that IUBAC, Local 5 transferred bargaining rights with respect to a single group of employees employed pursuant to a single collective agreement effective in the residential sector binding Hyde Park Masonry Limited. In the Jaddco decision, I determined that I would not exercise the discretion under section 68 in favour of a declaration that the Ontario Provincial Council of the IUBAC had transferred its bargaining rights to the BACU. The reasons which led to that exercise of discretion are:

(1) to do so would undermine the definition of “employee bargaining agency”, and the manner in which the province-wide bargaining rights of an employee bargaining agency are acquired and exercised in the ICI sector in bargaining a Provincial Collective Agreement with all employers in the province (paragraphs 144-145);

(2) a concern that the provincial structure of the BACU would be used oppressively in respect of Locals 6, 7 and 25 (paragraph 146). Parenthetically, I note that “oppression” remedies are rendered to prevent the oppressive effect of lawful authority, not to prohibit unlawful activity.

(3) the effect of such a declaration on the collective agreement between the IUBAC and the Electrical Power Systems Construction Association in the electrical power systems sector.

None of these has anything to do with residential bargaining rights or the facts of this case. There is nothing in the Jaddco decision with which one could be “consistent ” in this decision, even if consistency were one’s primary motive.

34. The final branch of this argument, and it may well be that this really lies at the heart of the applicant’s motion, is the assertion that the Jaddco decision effectively disposes of the major remedies sought in File 2532-98-U. Counsel has misconceived the decision. The Jaddco decision decides that the action of the BACU and the actions of the Old OPC and the old IUBAC locals are not such as to persuade the Board that they had transformed the old union into the BACU, or to persuade the Board to exercise its discretion to declare that the BACU was the successor to the old Ontario Provincial Council. In File 2532-98-U the BACU complained of certain activity of the International Union, activity which was ultimately found to be a violation of sections 147 and 149. It seeks as relief certain orders and declarations, some of which would amount to the same result as sought by the BACU in the Jaddco decision. The fact that the practical effect of the relief sought in the two applications would lead to the same practical result, does not mean that the legal issues or the Board’s activity is in any way similar. They are not. The Jaddco decision focused on what the BACU claimed was the legal effect of what it had done. The question in File 2532-98-U is the appropriate remedy for a violation of the Act by the International Union. That decision will be dependent on the facts of that case, which do overlap to a great extent with the facts on which the Jaddco decision was based. However, they are entirely different legal exercises. Certainly nothing in the Jaddco decision purports to grant or deny any of the relief sought or available in File 2532-98-U.

35. The applicant also took exception to paragraph 156 of the Jaddco decision. That paragraph provides as follows:

36. This conclusion means that the OPC and the eleven Locals are therefore still affiliated Local Unions and an affiliated council of the IUBAC. The purported revocation was ineffective after the filing of the s. 147 application and was withdrawn by the IU on August 16, 1999. The OPC and the Locals retain all of the rights duties and privileges which they held immediately prior to the revocation.

This paragraph is part of a concluding summary. The Board found that there had been no transformation of the old union or a transfer from the old union to the BACU and that the International Union had withdrawn its revocation of the charters of its old locals. The only logical result of that finding is that the bargaining rights, duties and privileges are and remain where they have always been, in the hands of the OPC and the local unions, which remain as affiliates of the IUBAC. And they will remain there unless and until the Board in some other application, or conceivably a court, declares otherwise. Accordingly, there is nothing in this ground raised by the applicant which persuades me that any person should have a reasonable apprehension of bias if I were to continue as the Vice-Chair in this case.

36. The motion is dismissed. The Registrar is directed to schedule this for one additional day of hearing to determine the preliminary issues set out in the October24th decision in Board Files 1072-00-G and 1357-00-U.

“David A. McKee”

for the Board