Ontario Labour Relations Board

0330-01-R Elaine C. Aiken, Applicant v. International Union of Painters and Allied Trades and the Ontario Council of the International Union of Painters and Allied Trades, Responding Party v. Mike’s Painting & Decorating, a Division of Mike McMahon’s Painting & Decorating Ltd., Intervenor.

BEFORE: Harry Freedman, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.

DECISION OF THE BOARD; May 24, 2001

1. The Board, differently constituted, by decision dated May 7, 2001 directed a representation vote in this application under section 63 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended for a declaration terminating the bargaining rights of the responding party for a bargaining unit described in the collective agreement by which the responding party and the intervenor are bound. The vote was held on May 9, 2001. The Board, in its decision in this matter directing the vote required the parties, if they wished to make representations to the Board about any issue relating to the application, to file a detailed statement of their representations with the Board and deliver those representations to the other parties within five days of the date on which the vote was taken. The last date for filing representations was therefore May 16, 2001.

2. The applicant advised the Registrar that she wanted an adjournment of this matter until some time after July 13, 2001 as she would be on an authorized leave of absence from her employment between May 25 and July 13, 2001. Counsel for the responding party advised the Board that the responding party does consent to the adjournment requested by the applicant “provided that the time for filing the Responding Party’s submissions with respect to any matters which remain in dispute be extended as well, to an appropriate date to be set by the Ontario Labour Relations Board.”

3. The parties have not yet met with a Labour Relations Officer to review what matters, if any, remain in dispute. Under the circumstances, and having regard to both the request of the applicant and the consent of the responding party, this application is adjourned to a date to be fixed by the Registrar (if necessary) after July 30, 2001. This matter is referred to the Manager of Field Services to schedule a Labour Relations Officer meeting with the parties during the week commencing July 23, 2001. The responding party is directed to file with the Board and deliver to the applicant its submissions, if any, with respect to the matters described in paragraph 9 of the Board’s decision of May 7, 2001 on or before July 3, 2001.

4. The applicant filed submissions with the Board by letter to the Registrar dated May 15, 2001. In view of the extension of time granted to the responding party, should the applicant wish to file any additional submissions with respect to the matters described in paragraph 9 of the Board’s decision of May 7, 2001, those submissions, if any, must be filed with the Board and delivered to the responding party on or before July 19, 2001.

5. The applicant, in her submissions filed May 15, 2001 objected to George McMenemy participating as a member of the panel dealing with this matter. Her letter to the Registrar states:

Please be advised that I wish to adamently [sic] and formally request that Mr. G. McMenemy, allocated vice-chair be removed without hesitation or concern on your part, as my fellow petitioners and myself feel, that due to his previous representation as local 1824 business rep. in the past, cannot without discrimination coertion [sic] intimidation fairly represent a just and unbiased hearing, in this matter!! I hereby request you notify me that a new vice-chair be allocated at once!

The applicant is incorrect about Mr. McMenemy’s role at the Board; he is appointed by the Lieutenant Governor in Council pursuant to section 110(2) of the Act as a member of the Board representative of employees. Mr. McMenemy is not a vice-chair of the Board. It appears that the applicant’s objection to Mr. McMenemy participating as a member of the panel assigned to this matter stems from the position he had with the applicant before he joined the Board. It appears that the applicant’s concern was triggered by Mr. McMenemy’s participation in the decision directing a representation vote in this proceeding.

6. There is, in our view, absolutely no merit whatever in the submission that Mr. McMenemy cannot participate as a member of the panel hearing this matter. This is not the first time that a party to a proceeding before the Board has sought to have Mr. McMenemy disqualified from hearing a matter based on his career prior to joining the Board and, in particular, his activities when he was a member and an officer of a local trade union affiliated with the applicant. The Board in Steel City Millwork, [2000] OLRB Rep. Nov./Dec. 1224 dealt with an objection to Mr. McMenemy continuing as a member of the panel hearing that matter at pages 1225-1228:

7. Counsel for the applicant, on instructions from the applicant, objected to Board Member George McMenemy continuing as a member of this panel because his presence on the panel raises a reasonable apprehension of bias. The applicant does not assert actual bias.

8. Mr. McMenemy, prior to his appointment to the Board, was the business manager of the International Union of Painters and Allied Trades, Local 1795 (“Local 1795”), one of the parties to this proceeding. He was a journeyman glazier, holding a certificate of qualification in the glazier and metal mechanic trade under the Trade Qualification and Apprenticeship Act, R. S. O. 1990, c. T. 17. Mr. McMenemy resigned from his position as Business Manager of Local 1795 in November 1992 when he accepted his appointment to the Board and resigned from his membership in Local 1795 and the international union approximately three years ago. Mr. McMenemy is, as an experienced journeyman, familiar with glazing work. The applicant submits that Mr. McMenemy’s previous association and role with Local 1795 and his presence on this panel causes it concern.

9. The employer parties before us had no submissions on the objection raised. Counsel for the responding unions submitted that there was no substance to the objection.

10. This panel of the Board had recently commented on this issue in Ontario Hydro, [1999] OLRB Rep. Oct./Nov. 870 at 871-872 where the Board wrote:

11. The 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.”

5. In 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.

12. In our opinion there is absolutely no merit whatever to the applicant’s objection. Mr. McMenemy has been a member of the Board since November 1992. He took an oath of office at that time and has discharged his duties as a Board Member continuously from that time forward. His experience and knowledge of the construction industry generally and of the trade in which he holds a Certificate of Qualification does not give rise to any reasonable apprehension of bias; rather, in the words of the Divisional Court in Marques v. Dylex, supra, that “We can take judicial notice, if it is not apparent from the Labour Relations Act itself, that members of the Labour Relations Board…will have had experience and expertise in…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…. Such people, having taken an oath of office (the Labour Relations Act, s. 91(18)) and…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.”

13. In our view, the knowledge and experience that Mr. McMenemy brings to this panel is a positive element that will assist in the fair disposition of this dispute.

14. The objection raised by the applicant is dismissed.

15. In the Steel City Millwork decision, the party seeking to have Mr. McMenemy removed from the panel did not allege actual bias, but rather a reasonable apprehension of bias. In this case, the applicant appears to allege both actual bias as well as a reasonable apprehension of bias. For the reasons set out in Steel City Millwork, there is no basis for finding a reasonable apprehension of bias. As for actual bias, the applicant does not assert any current relationship between Mr. McMenemy and the responding party. Her entire allegation of bias rests on Mr. McMenemy’s “previous representation as Local 1824 business rep. in the past”. In our view, for the reasons expressed by the Board and the courts, there is absolutely nothing about the fact that Mr. McMenemy had in the past acted as a business representative for Local 1824 that affects Mr. McMenemy’s ability to discharge his obligations as a member of this Board fairly and in accordance with the oath of office he took when he accepted his appointment to the Board. As there is no other allegation made by the applicant in support of her claim of actual bias, it is dismissed.

16. Should this matter be listed for hearing by the Registrar after the parties meet with a Labour Relations Officer, Mr. McMenemy may or may not be assigned to the panel, depending on the what panels of the Board are available to be scheduled to hear this matter at that time. The decision as to who will be assigned to hear the matter remains with the Chair and Registrar. The selection of the panel will not, however, be affected by the applicant’s submission concerning Mr. McMenemy’s ability to participate on the panel assigned to hear the matter as we have determined that the applicant’s submission with respect to bias is completely groundless and without merit and her attempt to have Mr. McMenemy removed from the panel is dismissed.

17. This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board