Welland County General Hospital v. Service Employees International Union, Local 204, 1992 CanLII 4703

0340-92 Welland County GeneralHospital, Applicant v. Service Employees International Union, Local 204, Respondent

Before : Mary Anne McKellar, Vice-Chair; Janet Slone-Taylor and Geri Sheedy, Members

Appearances:StevenF. Wilson, William Montgomery, Diane Sanderson, Paul Barrett, David Chondon for the Applicant; MaryCornish, TomSmall, LarryBishop,Marcelle Goldenberg, KarenSandercock for the Respondent

Cite As: Welland County General Hospital (1992), 3 P.E.R. 200

Bias

Areviewofthe Tribunal'sadjudicative historyestablished the adjudicative independence of members and contradictsanyclaimthatthe eventssurroundingresignationofTribunalMemberDudarmayhave a chilling effect on the expression of opinion by members representative of employers. The fact situation on which the motion was based was too attenuated and remote to give rise to a reasonable apprehension of bias. Moreover, as the member representative of employers assigned to hear this case acknowledged her competenceto continue to hearmattersbeforetheTribunal,themajorityruledthatitwould proceed tohear the application on its merits.

Partialité

Unexamendupassé judiciaireduTribunalaétablil'indépendancejudiciairede sesmembresetréfutetoute déclarationà l'effetque lesévénementsentourant ladémissiondumembreduTribunalDudarpourraitavoir poureffetdebâillonnerlesmembresreprésentant les employeurs. La majoritéaconcluquelasituationde fait sur laquelle reposait la motion était trop ténue et lointaine pour donner lieu àune suspicionraisonnable de partialité. De plus, comme le membre représentant les employeurs assigné pour entendre cette cause s' est déclaré compétent pour continuer d' entendre des causes devant le Tribunal, la majorité a décidé qu'il continuerait d'entendre la demande sur le fond.

DECISION OFMARYANNEMCKELLAR,VICE-CHAIR,AND MEMBER GERISHEEDY, NOVEMBER 10, 1992

THE ISSUE AND THE PARTIES' POSITIONS

1This decision disposes of a preliminary motion by the Applicant, the Welland County General Hospital ("the Employer"),whichsubmittedthatthe PayEquityHearings Tribunal("the Tribunal") byitsconducthad created asituationinwhichthe Employermightreasonablyapprehendthatthe Tribunalwasbiasedand that the Employer would not receive a fair hearing.

2The Respondent, the Service Employees International Union, Local 204 ("the Union") took no position on the Employer's motion and stated that it was content to proceed with the hearing before this panel.

3We find that no grounds for a reasonable apprehension of bias exist in this case.

BACKGROUND TO THE ALLEGATIONS

1 The Employer claims that the following circumstances give rise to a reasonable apprehension of bias.

2 In June, 1992, the Tribunal releasedGlengarry Memorial Hospital ("Glengarry"), (1992), 3 P.E.R. 34]. The issue in that case was how pay equity adjustments were to be integrated into collective agreements. Mr. Dudar, the member of the panel representative of employers, dissented from the majority decision in Glengarry. Mr. Dudar's dissent was two-pronged. He thought that the substance of the majority decision was flawed, and he was concerned that the decision-making process raised questions as to "whether the parties' rights to natural justice [had] been respected". Mr. Dudar provided no further details withrespect to the naturaljusticeissue he hadraisedbecausehe was concerned that his obligations toconfidentialityasanadjudicatorpreventedhim from doingso. He referred to this situation as calling into question"myown independence as an adjudicator". GlengarryMemorialHospitalhasappliedforjudicial review of Glengarry, in part on grounds that an error of natural justice occurred.

3 Mr. Dudar was also a member of the panel dealing with Tribunal File No. 0127-90 ("Belleville"). At issue in Belleville is whetherthe CityofBelleville or the Belleville Public Library Board is the employer ofthepersonsworkingattheBellevillePublicLibrary. There had been several days of hearing in Belleville prior to the release of Glengarry and four more days had been scheduled for September, 1992. In August, the parties in Belleville were advised that Mr. Dudar was unable to continue participating in the case. They were asked to choose between the substitution of another member representative of employers or of having the case begin again before a differently constituted panel.

4The Belleville Public LibraryBoard("theBoard")isrepresentedbyMr. Wilson, who is also counsel to the Employer in this case. On August 27, 1992, Mr. Wilson wrote to the Chair of the Tribunal setting out his concerns with respect to the prejudice the Board might suffer under the options proposed to the Belleville parties. In concluding his letter, he wrote:

In the circumstances, we submit that Mr. Dudar's inability to continue must be for a compellable reason. I have asked [the Tribunal's Registrar] about Mr. Dudar's inability to so continue; he has declined to answer. Would you please provide such explanation.

Mr. Wilson did not receive a response to this letter.

8. On September 9, 1992, Mr. Wilson wrote to the Chair of the Tribunal a second time. Again, he was writinginhiscapacity as counsel to the Boardin Belleville. Itappearsthatthis letterwaspromptedbythe fact that the Tribunal had adjourned the four previously scheduled September hearing days in Belleville without the consent of Mr. Wilson's client. The letter concluded:

The adjournment without consent and the initial failure to provide an explanation for Mr. Dudar's inability to remain a member of the quorum and the continued failure to do so raises a regrettable concern about the neutrality of the process.

I request that you advise me immediately why Mr. Dudar is no longer able to continue to participateinthe hearingofthis matter,and whythe matterwasadjournedwithoutconsent.

Mr. Wilson did not receive a response to this letter.

9. On September 23, 1992, Mr. Wilson wrote to the Chair of the Tribunal once more. This time he wrote to her in his capacity as counsel to this Employer. He reiterated his previous requests for an explanationrespectingMr. Dudar'sinabilitytocontinue in Belleville and the adjournment ofthe Belleville hearing days without the Board's consent. He did not explain in this letter why that information was pertinent to the adjudication of the dispute between the Employer and the Union in this case. The issues raised in this case differ from those in Glengarry and Belleville. The letter concluded:

The Employer respectfully requests that the Tribunal advise it why the above events occurredand that it do so as soon aspracticable but inanyevent priorto October 20,the firstday scheduled for the hearinginthe above notedmatter[the Welland CountyGeneral Hospital case].

Mr. Wilson did not receive a response to this letter.

10. On October 6, 1992, Mr. Wilson wrote to the Chair of Tribunal once more, again in his capacity as counsel to this Employer. In this letter, Mr. Wilson suggested how his correspondence with the Chair might be relevant to this case:

The withdrawal or removal of this member and the matters surrounding the event raise a concernforthe Employer. . . about the institutional setting in whichdecisions are madeat the Tribunaland howthe Tribunalfunctions as wellas withthe"actualorapparent influence on the intellectual freedom of the decision makers" . . . . We submit that it raises a reasonable apprehension of bias for the Applicant Hospital in this matter.

. . . . The Applicant Employer is hopeful that a reasonable explanation will be provided in sufficient time to permit a review of the reasons and to dispel any apprehensions about bias.

Mr. Wilson concluded by requesting a response by October 13, 1992.

11. On October 19, 1992, the Chair of the Tribunal wrote to Mr. Wilson advising that his correspondence had been forwarded to this panel:

Pleasebe advisedthataftercarefulconsiderationIhaveinstructedtheRegistrarto forward your correspondence to the panel of the Tribunal assigned to hear this matter. Your submissions regarding an apprehension of bias against the Applicant are properly addressed to the panel for its deliberation.

2 This hearing was convened on October 20, 1992. At the commencement of the hearing, the Vice-Chair referred to the correspondence that had been forwarded to the panel and asked Mr. Wilson if he was making a preliminary objection. He said that his answer depended onwhetherthepanelwasable to and prepared to provide him with the information he sought. The panel advised him that we were not in a position to respond to his inquiries and he proceeded to outline the nature of his concerns.

3 Mr. Wilson commenced his argument by stating that the Employer in this case is aware of the circumstances set out in paragraphs 5 through 11 above. He described the Employer's concern in these circumstances as follows:

What we face today is a structure in which there is a reasonable if not probable apprehensionofimproperinfluencepotentiallywitha financialconsequencetothemember representative ofemployersinthis case because she mightchoose to exerciseherfreedom to make a decision which is inconsistent with some superseding and unknown direction.

Whenquestionedbythe panel, Mr. Wilsonconfirmedthatwehadaccuratelyrecorded his concern, and clarified that the phrase "financial consequence" was a euphemism for "loss of employment".

14. On October 22, 1992, the Chair of the TribunalrespondedtoMr.Wilson'slettersinthe Belleville matter. This letter reads, in part:

. . . please be advised that Tribunal MemberDudarhasresignedfromthe Tribunal. In the circumstances, and to accommodate Mr. Dudar's wish to be free to deal with other matters, he has been relieved from all cases to which he was assigned.

2 On October 27, 1992, Mr. Wilson wrote to this panel:

Thecontinuedfailureofthe Tribunalto explainthe situationup to October 22 and the letter from [the Chair]raisedareasonableapprehensionofbias. [The Chair's] letter itself raises a number of questions and, far from removing the apprehensions of bias, reinforces the concerns of the Applicant Hospital [the Employer].

In his letter of October 27, 1992, Mr. Wilson then went on to pose several questions respecting the circumstances surrounding Mr. Dudar's resignation. This panelisnotinaposition to answer any of those questions.

16. In short, to paraphrase Mr. Wilson, what he seems to be saying is the following:

The Employer here knows what happened in Belleville.

In the middle of the hearing, the quorum was lost.

The quorum was lost because the member representative of employers could no longer continue on the case.

We don't know why he couldn't continue.

No one at the Tribunal would tell us.

Two months earlier the same member issued a dissent in Glengarry suggesting an unspecified error of natural justice may have occurred in that case.

We think his inability to continue in Belleville has to do with his dissent in Glengarry; that he was being penalized for his dissent.

The same thing could happen here.

17. We understand that Mr. Wilson is not saying that the Tribunal is without jurisdiction to make or changepanelassignmentsortoadjournahearing without consent of the parties. Rather,whatheissaying is that absent an explanation for its actions, the Tribunal's exercise of its jurisdiction in Belleville raises a reasonable apprehension of bias for the Employer in this case.

THE ANALYSIS

1 Mr. Wilson commenced his legal argument by stating that the Tribunal is required to act in a manner that is procedurally fair. We accept this proposition. He cited Pearlman v. Manitoba Law Society Judicial Committee (1991), 1991 CanLII 26 (SCC), 84 D.L.R. (4th) 105 (S.C.C.) in support of the proposition that the requirements of procedural fairness may vary depending on the circumstances or "context". We also accept this proposition.

2 Mr. Wilson says that the recent decisions of Mr. Justice Steele of the Ontario Court (General Division) in Re Ellis-Don Limited and The Ontario Labour Relations Board et al. (July 17, 1992) and of the Supreme Court of Canada in Tremblay v. Québec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 provide us with the relevant "context" in which to consider the issue of procedural fairness to the Employer. Both cases, he says, deal with the intellectual freedom of decision makers in particular institutional settings. If we can extrapolate from Mr. Wilson's remarks, he appears to be citing these authorities for the proposition that procedural fairness requirements are not met where the institutional setting is such that the decision maker does not enjoy the intellectual freedom to make his or her own decisions. The facts in Ellis-Don and Tremblay must be examined before we can determine whether the proposition for which Mr. Wilson cites them is applicable in this case.

3 In Tremblay, the two commissioners of the Commission des affaires sociales who heard the case of Noémie Tremblay agreed on the outcome of the case and prepared a draft decision. Pursuant to the Commission's institutionalized consultation procedure, the Commission president reviewed the decision, proposed a contrary opinion, and convened a plenary session of the Commission to discuss it. Following the meeting, the two commissioners who had heard the case no longer agreed on the outcome. Where a split of the commissioners hearing the case occurred, the statute required that the matter be remitted to the president. It was, and thepresidentdecidedthecaseinaccordancewithhisprevious opinion. Tremblay deals at considerable length with the propriety of institutionalized consultation procedures which permit persons who did not hear a case to compelitsdiscussionat plenary sessions of the Commission at which attendance is compulsory and at which recorded attendance, votes and minutes are taken. At bottom, however, what Tremblay is about is an institutional settingthatcreated a situationinwhichsomeone other than the person hearing the case decided it. This is not the issue presented by Mr. Wilson here.

4 The Ellis-Don decision deals with a motion to compel the Chair, Vice-Chair and Registrar of the Ontario Labour Relations Board ("the OLRB") to attend before an Official Examiner to obtain information abouthowtheOLRBhadarrivedat its decisioninaparticularcase. Certain facts were known. A plenary session of the OLRB had been called to discuss a draft of the decision. Following that discussion a final decision was released. The outcome in the final decision was different from the outcome in the draft decision. The outcome in the final decision wasnottheoneEllis-Donhadurgedonthepanelinthecourse of the hearing. Ellis-Don made an application to judicially review the decision. The application for judicial review has not yet been heard. Steele J.'s decision in the motion was that the Chair, Vice-Chair and Registrarwere compellable to attend before the Official Examiner. That decision has beenappealedand the appeal will be heard in November, 1992. Like Tremblay, the issue in Ellis-Don is" who really decided the case?" Again, this is not the issue presented by Mr. Wilson here.

5Ellis-Don is not the first case in which the courts have dealt with the propriety of OLRB plenary sessionsatwhichdraftdecisionsarediscussed. The Supreme Court of Canada also dealt with this subject ina case Mr. Wilsondid notciteto us, IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282. In Consolidated-Bathurst, the majoritydealt squarelywiththe topic of the intellectual freedom and independence of adjudicators. The Court held that it is not improper for one adjudicator to attempt to influenceanotherinhisor her decision making, nor is it improper for the second adjudicator tochange his or her mind on account of that influence. What is improper is a situation where the second adjudicator is compelled to write a decision with which he or she does not agree. The pertinent passages are set out below:

It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision. It also goes without saying that a formalized consultation process could not be used to force or induce decision makersto adoptpositions withwhichthey do not agree. Nevertheless, discussions withcolleaguesdo not constitute, in and of themselves, infringementsonthe panelmembers'capacityto decide the issues at stake independently. Adiscussion does not prevent a decision maker from adjudicating inaccordance withhis ownconscienceandopinionsnordoesitconstituteanobstacletothisfreedom. Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility.

The essential difference between full board meetings and informal discussions with colleagues is the possibility that moral suasion may be felt by the members of the panel if their opinions are not shared by other Board members, the chairman or vice-chairmen. However, decision makers are entitled to change their minds whether this change of mind istheresult ofdiscussions withcolleaguesor the result oftheir ownreflectiononthe matter. A decision maker may also be swayed by the opinion of the majority of his colleagues in the interest of adjudicative coherence since this is a relevant criterion to be taken into consideration even when the decision maker is not bound by any stare decisis rule.

Itfollowsthatthe relevant issue inthis case is notwhetherthe practiceofholdingfullboard meetings can cause panel members to change their minds but whether this practice impinges on the ability of panel members to decide according to their opinions. There is nothing in the Labour Relations Act which gives either the chairman, the vice-chairmen or other Board members the power to impose his opinion on any other Board member. However, this de jure situation mustnotbe thwartedbyprocedureswhichmayeffectively compelor inducepanelmembersto decideagainsttheir own conscience and opinions.(at pp. 332-333)

A majority of the Supreme Court of Canada found that no error of natural justice had occurred.

1 Consequently, the "context" in which we must assess whether procedural fairness has been undermined by a lack of adjudicative independence must take into account both Consolidated-Bathurst and Tremblay. Consultation, discussion, and other attempts to influence decision makers, do not compromise adjudicative independence so long as the decisionmakeris not compelled to decide against hisorherownconscienceoropinions. That situation is, effectively, nodifferentfromthecasehavingbeen decided by someone who did not hear it. Attempts to influence must stop short of that situation. Mr. Wilson has not located his allegations in that "context".

24. How and when Consolidated-Bathurst, Tremblay and Ellis-Don came before the courts is significant. In all three cases, afinal decision waschallengedbythe partyadverselyaffectedbyit.Ineach case, the basis for the challenge was that the process by which the decision was reached was flawed and violated the principles of natural justice. Here, of course, the hearing of the merits has not commenced. No decision has been issued. An apprehension of bias may arise at any point in the hearing or decision­makingprocess,including before the hearing on the merits has begun. Wheretheallegationisthatapanel membermaybecompelledtodecidecontrary to his or her own opinion, however, the point inthe hearing process at which the allegation is made is a factor to consider in determining how reasonable the apprehensionis. Mr. Wilson's motion amounts to asking this panel to make a ruling prohibiting ourselves from proceeding to hear the case. But more than that, he is asking us to anticipate a breach of the requirements of procedural fairness by finding that adjudicators at the Tribunal are not independent. The

implications of what he is asking us to do are enormous. In the absence of a decision around which his objections might crystallize, what could possibly be the result of this panel's acceptance of his proposition that adjudicative independence does not exist at the Tribunal?

25. In our view the appropriate standard for assessing whether there is a lack of independence is the same as for assessing whether there is a reasonable apprehension of bias. This standard is set out in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, and affirmed and applied in both Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673 and Consolidated-Bathurst at p. 334:

. . . 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 -- concluded . . . ."

2 Would an informed person, viewing the circumstances set out in paragraphs 5 through 15 above, realistically and practically, and having thought the matter through, conclude that he or she could not get afairhearingbeforethisTribunalforlackofadjudicativeindependence? We do not think so. In the words of the Supreme Court of Canada in Pearlman, the eventswhichMr. Wilsonspeculatesmayoccur are far too "attenuated and remote to give rise to a reasonable apprehension of bias" (at p. 122).

3 In Pearlman it was alleged that a reasonable apprehension of bias arose in the conduct of proceedings beforethe discipline committeeofthe ManitobaLawSocietybecause thatcommitteehadthe powertorecoupthecostsofitsproceedingsfromalawyerfoundguiltyofmisconduct. This, it was argued, might predispose the committee to a finding of guilt. The Supreme Court of Canada noted that in the past the amounts collected in respect of costs averaged .04% of the Law Society's revenues. The costs collected spread among the members would amount to only a few dollars per year. The Court stated that it found it "unreasonable to suggest that this minuscule indirect benefit might predispose certain members of the Judicial Committee towards a finding of guilt" (at p. 123).

4 As in Pearlman, we are being asked to find that the potential for compromise of adjudicative freedominthiscaseraisesareasonableapprehensionofbias. AstheCourtdidin Pearlman, we must ask howreasonableorlikelyitisthat that potentialitywillberealized. And like the Court in Pearlman, we find that what has already occurred is of great relevance in assessing the likelihood of the realization of that potentiality.

29. An examination of the decisions reported in Volumes 1 and 2 of the Pay Equity Reports and subsequent significant decisions offers some insight into adjudicative independence at the Tribunal. There havebeen31decisionsreleasedbytheTribunalinwhichthe reasons for decision were unanimous. There have been 2decisions inwhichthe employeerepresentative onthe panelconcurredinthe result,but issued separate reasons. There have been 5 decisions in which the employee representative issued dissenting reasons. There have been 12 decisions in which the employer representative issued dissenting reasons. There has been 1 decision in which both the employee and employer representative dissented. There has

been1decisioninwhichtheVice-Chairdissented. Of the 12 dissents by employer representatives, 4 were released subsequent to the release of Glengarry and 3 ofthosewerereleasedafterMr. Wilson had been advised of the loss of quorum in Belleville. Two of those three dissents were written by the employer representative on this panel. The third was written by Mr. Dudar.

5 The raw numbers of dissents are revealing in and ofthemselves,but the Tribunal's treatment of the "employer" issue is particularly illuminating as well. This is of course the very issue at stake in Belleville. The analytical framework set out in Haldimand-Norfolk (No.3) (1990), 1 P.E.R. 17 was used in three subsequent unanimous "employer" decisions, including two in which Mr. Dudar participated. Following thosefour decisions,the majorityinBarrie Public Library Board (1991), 2 P.E.R. 93 adopted a different analyticalapproach. Mr. Dudar was part of that majority. The Barrie approachwasfollowedinone later case. In its most recent "employer" case, yet a third approach has been adopted, one which attempts to "marry"Haldimand-Norfolk (No.3) and Barrie. Mr. Dudardissentedinthis case, Kingston-Frontenac Children's Aid Society (1992), 3 P.E.R. 117].

6From merely looking at the Tribunal's decisions to date, not only is it not reasonable, but it is impossible to conclude that this Tribunal is one that does not brook dissent or tolerate different opinions. In short, what we find in the preceding two paragraphs is not the record of a Tribunal lacking in adjudicative independence,norisitthe recordofa Tribunal in which there has been a chilling effectonthe employer representatives' expression of their opinions. On the contrary, the record demonstrates the continuing exercise of independent decision making by Tribunal members.

7We have a record of decision making that reveals considerable evidence of adjudicative independence. We have a case which has not yet begun in which Mr. Wilson is complaining about perceived injustices to his client in another file and speculating about the reasons for those injustices. We have a case in which Mr. Wilson, from his theory of why those perceived injustices occurred, is extrapolating the conclusion that similar injustices might occur to the Employer here. His apprehensions are not reasonable: they are too attenuated and remote. He is attempting to link together three different cases involving three different panels adjudicating three different issues.

8This motion is denied. It is premature and raises no basis for a reasonable apprehension of bias. In Pearlman, wherethe applicationwasbrought beforeanorder forcosts could be madeonthe basis that the merepotentialityofsuchanorder's beingmaderaiseda reasonable apprehensionof bias, the Supreme Court of Canada had this to say:

Itisworthmentioningthat,ifthere weretobe anunfair or otherwiseabusive orderofcosts pursuant to s.52(4), Pearlmanwouldhave the fullpanoplyofadministrative remediesopen to him. All I am deciding is that the legislative provision authorizing the recoupment of costs involved in disciplinary proceedings does not, in and of itself, put into doubt the impartiality of those proceedings. (at p.123)

Similarly, if Mr. Wilson feels our final decision in this matter is patently unreasonable or in violation of the principles of natural justice, includingthe requirement to have the caseheardbyindependent adjudicators, he will have the full panoply of administrative remedies open to him.

34. It is hard to avoid the conclusion that Mr. Wilson is just using this motion as a lever to attempt to secure information respecting the lossofquorum in Belleville. We are aware of Mr. Wilson's frustration in Belleville. He wrote to the Chair of the Tribunal seeking information. The Chair of the Tribunal acknowledged his letters the day before the hearing in this matter. At that time, he was told the correspondence had been forwarded to this panel. On the first dayofthe hearing, Mr. Wilson requested thatthispanelprovidetheinformation. We werenotinapositiontoprovideit.OnOctober22,1992,two days after the hearing, the Chair advised Mr. Wilson in writing that Mr. Dudar had resigned. Mr. Wilson wrote directly to thispanelonOctober27,1992seekingmoreinformationaboutthatresignation. We are not in a position to provide that information, nortodeterminewhetherMr.Wilsonhasany right to it. The sole function of this panel is adjudicative. It has no administrative functions or responsibilities within the Tribunalintermsofschedulingcasesormakingpanelassignments. Mr. Wilson was frustrated at not having his correspondence acknowledged by the Chair, who is responsible for the administration of the Tribunal. Thatfrustration, however,relatesto the circumstances surrounding the scheduling ofthe hearinginanother file. No matter how acutely he feels this frustration, it does not translate into a reasonable apprehension of bias on the part of the Employer in this case.

THE DECISION

35. The member of this panel representative of employers has issued dissenting reasons. In those reasons she has indicated at Paragraph23 thatshe iswillingand able to performheradjudicative functions with competence. Having regard to that statement and the majority's determination that the circumstances of this case do not raise a reasonable apprehension of bias, the hearing will continue on its merits before this panel.

DECISION OF MEMBER JANET SLONE TAYLOR, NOVEMBER 10, 1992

1 In this matter, Welland County Hospital (the "Applicant") has raised a preliminary issue concerning areasonableapprehensionofbias. The context in which the Applicant raises the concern, and the grounds for this concern, are a series of events which have followed the releaseofarecentTribunaldecision. The majority has determined that the Applicant has no grounds for a reasonable apprehension of bias in this case. I dissent.

2 The Applicant points to a recent series of events which raises the question: are the members of the Tribunal, and more specifically in this case, the members representative of employers, free to fulfill their adjudicative responsibilities without fear of removal? The Applicant also asks: can the applicant in this hearing be assured of procedural fairness in this institutional setting?

3 In expressing this concern, counsel for the Applicant has said:

We face a quasi-judicial structure in which there is a reasonable if not probable apprehensionofimproper influence, potentially withfinancialconsequencesto the Member Representative of Employers, in this case, because she might choose to exercise her freedom to make a decision which is inconsistent with some superceding and unknown direction.

Whatwefacetodayisa public tribunalwhichhascloakedanextraordinaryand prejudicial decision in secrecy. What we face is a proceeding, like the Belleville proceeding, which may be interrupted and adjourned without consent with the potential that the Applicant's witnesses may have to be cross-examined twice ... without explanation ....

The Supreme Court has expressed clearly the need for proceedings before impartial decision-makers,not those who maybe intimidatedintosilence --asilencewhichhasand contines to greet this Applicant's request for information.

1 Counsel for the Applicant stated that it was the Employer's awareness of the decision in Glengarry Memorial Hospital ("Glengarry")1992), 3 P.E.R. 34,the non-availabilityoftheMemberRepresentative ofEmployers,MemberDudar,to continue as a panelmemberinTribunalFile No. 0127-90 ("Belleville") the lack of response to questions raised by counsel concerning that non-availability, and the lack of response to the questions raised in this case which form the basis for concern.

2 These events have led the Applicant to concern over the institutional setting in which its case is to be heard, and has resulted in an anticipation that the fundamental right to natural justice cannot be met . For these reasons, the Applicant wishes to have the concerns addressed, and its questions answered, before proceeding to the merits of the case.

BACKGROUND

1 It is necessary to review the events and circumstances surrounding the two previous cases,Glengarry and Belleville in order to understand these present concerns.

7. In Glengarry, my colleague, Member Dudar, dissented from the majority decision, and stated in his concluding paragraphs that:

1 Since the matter was heard over six months ago, I believe there have been events which call into serious question whether the parties’ rights to natural justice have been respected.

1 I have raised these issues within the Panel and the Tribunal, however, it is apparent that the question cannot be resolved satisfactorily, in my view.

33. Further, it may well be that, notwithstandingtheseriousnessofmyconcerns,itwould be inappropriate and wrong in law for me to discuss the bases for my concerns in this

decision. This arises out of my Oath of Office and my obligation to confidentiality as an adjudicator. This further calls into question whether the parties’ rights are being respected, as well as my own independence as an adjudicator.

1 I apologize to the parties for the inconvenience this will cause and the injustice they will feel. I have been left with no choice.

2 Subsequent to the release of theGlengarry decision, the Registrarofthe Tribunalinformedthe parties in Belleville that Mr. Dudar was no longer able to participate in that hearing. Counsel for the Belleville Public LibraryBoard wrote to the Chair of the Tribunal on August27, 1992, expressingconcernoverthe options given to him by the Registrar: to substitute a member for Mr. Dudar, or to have the case begin again. (He noted in his argument that all of the evidence in chief for the City of Belleville had been given, and that the witness for the Library Board had begun.) He wrote:

A new member substituted for Mr. Dudar at this time will not be able to judge the comportmentofthecity’switnessesnormuchof(theLibrary’switness’s)evidence. From the Library’s perspective, this will place the panel in an untenable position and raises a concern about thefairnessoftheprocess. Alternatively, the requirement to start the entire process over at this stage, would require that witnesses of the City and Library retestify and besubjectto a second round ofcross-examination:this too raisesaconcernabout the neutrality and fairness of the process as well as involving substantial additional cots.

In the circumstances, we submit that Mr. Dudar’s inability to continue must be for a compellable reason. I have asked Mr. Gallus about Mr. Dudar’sinabilitytosocontinue; he has declined to answer. Would you please provide such explanation.

On August 28, 1992, counsel for the City of Belleville also wrote refusing the two options for proceeding with the case given to him bythe Registrar,and requestinginformationas to why Mr. Dudar was not able to continue.

1 Neither counsel received a response. On September 9, 1992, Counsel for the Library wrote again, stating that “The adjournment without consent and the initial failure to provide an explanation for Mr. Dudar’sinabilityto remaina memberofthe quorum and the continued failure to do so raises a regrettable concern about the neutrality of the process.” On September 23, 1992, the same counsel, now acting on behalf of the Applicant in this case wrote to the Chair of the Tribunal, noting that “The Employer is aware that in the Belleville matter, Tribunal File Number 0127-90, the quorum was lost when the member representing employers was no longer able to participate in the proceedings.” He again asked for an explanation. Counsel for the City of Belleville also wrote again on September 23, 1992, asking for a reply to his letter of August 28, 1992.

2 Counsel for the Applicant wrote to the Chair again on October 6, 1992, and on October 19, 1992, requestingareplytohisearlierlettersonbehalfofthe Applicant,and askingfora responseintime toassess the facts before beginning the merits of this case.

11. On October 19, 1992, the day before the hearing was to begin, he received a letter from the Chair of the Tribunal, informing him that she had instructed the Registrar to pass the matter on to the panel. On October 22, 1992, the Chair wrote to all of the parties in Belleville, providing the explanation that:

MemberDudarhasresignedfromthe Tribunal. Inthe circumstances,and to accommodate Mr.Dudar'swishto be freeto dealwithothermatters,he has been relieved from allcases to which he was assigned.

12. In response, counselfortheApplicant wrote to the panel in Welland, expressing further concerns. He stated that:

Clearly the Belleville case is one of those cases from which Mr. Dudar was relieved. It is apparent that he was so relieved from that case at least as early as August 27, 1992, the date of my letter to Ms. Symes.... Yetthe Tribunalfailedto explainwhy this happened at the time of its announcement, following 4 letters requesting the information, and at the hearing in the Welland matter on October 20 .. The continued failure of the Tribunal to explain the situation up to October 22and the letterfromMs. Symes raised a reasonable apprehension of bias. Ms. Symes' letter itself raises a number of questions and far from removing the apprehension of bias, reinforces the concerns of the Applicant Hospital.

13. Counsel for the Applicant then proceeded to raise seven new questions:

2 When was Mr. Dudar relieved from the Belleville case;

2 WhendidMr.DudarresignfromtheTribunal. For greater clarity,IaskwhenMr. Dudarformally offered his resignationand whenitwasacceptedratherthanwhen the resignation was effective;

2 Was Mr. Dudar unwilling to continue to participate in the Belleville matter as he was entitled to do pursuant to the Pay Equity Act, 1987, subsection 28 (4), and if so why;

2 Was Mr. Dudar's resignation voluntary and entered into without intimidation or coercion or any other pressure by any individual associated with the Pay Equity Office, Commission or Hearings Tribunal or any member of the provincial government;

2 Did Mr. Dudar receive any compensation for resigning and if so why;

2 Why did the Tribunal not provide the simple explanation given in the October 22 letter for almost two months, knowing or ought reasonably to have known that the refusal to answer would generate an apprehension of bias;

2 Why were the four days scheduled for the Belleville matter in September adjourned without consent.

NATURAL JUSTICE AND APPREHENSION OF BIAS

1 The majority has reviewed the jurisprudence on natural justice and apprehension of bias in determining what are the appropriate tests.

2 The majority has stated that three decisions, Re: Ellis-Don Limited and the Ontario Labour Relations Board et al. (July 17, 1992) ("Ellis-Don"), Tremblay v. Quebec Commission des affaires sociales, [1982] 1 S.C.R. 952 ("Tremblay") and IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282 ("Consolidated Bathurst") are relevant. They agree that these cases stand for the proposition that procedural fairness and the intellectual freedom of decision-makers is a requirement of natural justice.

3 The majority agrees as well with Pearlman v. Manitoba Law Society Judicial Committee (1991), 1991 CanLII 26 (SCC), 84 D.L.R. (4th) 105 (S.C.C.). In this decision, the Court addressed the specific requirement of "a procedurally fair hearing before an impartial decision-maker as a basic tenet of natural justice" (p.116). The Court found that context must be examined in determining whether the requirement of procedural fairness has been met. At p.116 the decision stated "There are many different factual settings which could place the impartiality of a decision-making body in question".

4 I agree that this jurisprudence is relevant here. I agree that the appropriate tests for determining whethertherequirementsofnaturaljusticehave beenmetare proceduralfairnessand aninstitutioninwhich decision-makers have intellectual freedom and may decide according to their conscience without fear of removal. I agree that the circumstances, or context, must be examined in each case.

5 The majority, using these tests, has concluded that the Applicant's claim of an apprehension of bias cannot be supported. I do not agree.

19. In arriving at their conclusion, the majority has made four errors:

5 The majority has reached its conclusion by distinguishing the procedural issues in Ellis-Don, Tremblay, and Consolidated Bathurst from the issues in Welland.

5 The majority has found that the history of decision-making at the Tribunal supports their decision in this case.

5 The majority has concluded that the point in the hearing process at which the allegation is made is a factor to consider in determining how reasonable the apprehension of bias is (paragraph 24) .

5 The majority has determined that, because the issues before the Tribunal in Glengarry, Belleville, and Welland are dissimilar,the Applicant hasno groundsonwhichtoanticipate bias.

1. Dissimilar Issues of Procedural Fairness

2. The issue in this case does not appear to arise out of matters relating to consultation or discussion following a hearing, as the majority has said atparagraph24. That does not dispose of the question. That Ellis-Don, Tremblay, and Consolidated Bathurst do not address the particular context in this case is irrelevant. The real issue has been summarized in Consolidated Bathurst (p.333):

The relevant issue ...iswhether(this practice)impingesonthe abilityof panel members to decide according to their opinions ... the de jure situation must not be thwarted by procedures whichmay effectively compelor inducepanelmembersto decideagainsttheir own conscience and opinions.

2. History of Decision-making at the Tribunal

1 The majority has discussedthehistoryofdecision-makingatthe Tribunal at paragraphs 29 ,30, 31 and 32. I do not believe that this history is relevant. There has been only one decision of the Tribunal in which a member raised an issue of natural justice and the intellectual freedom of a decision-maker. That issue was raised by Member Dudar in Glengarry. Mr.DudarisnolongeramemberoftheTribunal. That is the relevant history.

2 Furthermore, a general history of decision-making at the Tribunal does not answer the Applicant's concerns. The issue is not whether members representative of employers are biased, but whether the Applicant, based on the fact situation he has outlined, has reasonable grounds for an apprehension of bias.

3 I believe that the members representative of employers are willing and able to perform their adjudicativefunctionswithcompetence. They will continue to do so even if there were a threat of removal. However, I also believe that this fact situation, which the Applicant has outlined as the grounds for his preliminary objection, provides a firm basis for an apprehension of bias.

3. Timing of the Allegation

1 The majority suggests at paragraph 24 that the timing of the allegation must be considered in determining how reasonable the apprehension of bias is.

2 The standard for apprehensionofbias,whichthemajoritysetsoutatparagraph25, simply requires that a reasonable person, applying himself/herself to the question and knowing the facts, would conclude that he/she would not get a fair hearing. There is no jurisprudence supporting the view that the timing of the allegation makes an apprehension of bias more or less reasonable.

3 The Applicant believes that, because of events which have already occurred, there are justifiable grounds for concern that members representatives of employers may be subject to fear of removal, or maybe removed for unknown reasons, and that this may have a severely adverse impact on this case.

4 Since the apprehension of bias in this case has arisen before the merits of the case have been heard, that is the most appropriate time to raise the issue. Surely that does not make the apprehension of bias less "reasonable", as the majority has implied in paragraph 24. The timing of the allegation arises out of the context in which it has been made. It would be an absurd situation if counsel for the Applicant were to allow the hearing to proceed, and then raise his concerns at the end of the process in this fact situation.

28. InNewfoundland Telephone Co. v. Newfoundland (1992), 1992 CanLII 84 (SCC), 4 Admin. L.R. (2d) 121, the Supreme Court said:

Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right . ... it is impossible to have a fair hearing or to have proceduralfairnessif a reasonable apprehension of bias hasbeenestablished.Iftherehas been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal whichdeniedthe parties a fair hearing cannot be simply voidable and rendered invalid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing and any subsequent order resulting from it, is void (emphasis added).

5 I believe that the fact situation which counsel for the Applicant has described requires that the Applicant's questions be answered. He may then determine if he will receive procedural fairness and if the decision-makers in Welland are free to decide according to their conscience without fear of removal.

4. Different Questions in Glengarry, Belleville and Welland.

5. The majority has stated at paragraph 32 of this decision that:

We have a case in which Mr. Wilson (counsel for the Applicant), fromhis theory of why those perceived injustices occurred, is extrapolating the conclusion that similar injustices might occur to the Employer here. His apprehensions are not reasonable; they are too attenuated and remote. He is attempting to link together three different cases involving three different panels adjudicating three different issues.

2 The fact that the questions are different in each of the three cases is not relevant, and mischaracterizes the Applicant's claim. Counsel for the Applicant has not said that the Applicant will not get a fair hearing because the question in Welland is the same as in Glengarry or Belleville. He has said thathisconcerns ariseout ofthe context and institutional settinginwhichthe Tribunal'sdecisions are made.

3 The majority has concluded that counsel for the Applicant has attempted to use his motion as a means of finding out why the quorum was lost in Belleville (paragraph 34). This characterization of his motives is entirely speculative and without foundation. Counsel for the Applicant has stated very clearly why he is asking his questions about Belleville and why he is raising the issue of natural justice in Welland. There is no reasonable basis for disbelieving him.

CONCLUSION

1 The Applicanthasrequestedinremedythatthequestionsposed to the Chair of the Tribunal and to this panel be answered before proceeding. I believe he should be given the answers to his questions. However, as was the case for my colleague Member Dudar, I cannot answer these questions out of concern that I may violatemyOathofOfficeandmyobligationtomaintainconfidentiality. I do not believe that such answers, were I able provide them, would alleviate the Applicant's concerns.

2 Counsel for the Applicant believes he has established the grounds for a reasonable apprehension of bias. I regret that I have no choice but to agree with him. The fact situation set out by counsel for the Applicant gives rise to a justifiable concern over procedural fairness in this institutional setting, and the possibility that the events he has described may have had a chilling effect on members representative of employers.