PSGB# P-2018-3802

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Barnes

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

Patrick Barnes Caroline Cohen

Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

Written submissions completed December 15, 2020

Decision

1This decision deals with the complainant's motion that I recuse myself from the hearing of this matter. The complainant has also indicated that he intends to record the proceedings from now on and requests that he have a lawyer present during the hearing, the expense of which would be included as part of the remedy he is requesting in his complaint.

Background and Context

2By way of background, on January 11, 2019, the complainant, Patrick Barnes, received a two-day disciplinary suspension without pay for a wrongful release and a wrongful hold. On March 14, 2019, he filed a complaint with the Board alleging that the discipline was unfair and unjust. He seeks to remove the discipline from his file, full compensation for the unpaid 2-day suspension, and other redress from the employer. In his complaint (Form 1), Mr. Barnes indicated that he preferred to proceed by way of “Mediation/Arbitration” (also referred to as med-arb).

3The matter was scheduled for one day of mediation to be held on October 3, 2019. To accommodate the complainant, who lives and works in Ottawa, I ruled that the complainant and I (also based in Ottawa) would attend at a neutral location in Ottawa. The employer and counsel for the employer would remain in Toronto, with the parties connecting by conference call. This modified the Board's standard practice of conducting all proceedings at its offices in Toronto.

4The parties were unable to resolve the complaint in mediation, and the matter was scheduled for hearing in Toronto. A hearing date of January 21, 2020, was set in consultation with the parties following the Board's usual practice. In keeping with the Board's practice and with the generally accepted procedures for a med/arb proceeding, the Vice-Chair who attempted to mediate a resolution to the parties' dispute would also hear and determine the matter on the merits.

5In early January 2020, the employer requested an adjournment of the January 21, 2020 hearing date due to its first witness's unavailability. The complainant opposed the request. After hearing the parties' submissions in a conference call held on January 13, 2020, I granted the employer's request. Several procedural matters were also discussed during this call. New hearing dates of October 15 and 28, 2020, were set in consultation with the parties.

6In March 2020, public health announcements related to the COVID-19 outbreak required rigorous distancing and hygiene measures in addition to placing severe limits on travel outside the home. As a result, the Board announced that it would not be holding in-person hearings until further notice. Instead, all Board proceedings were held by way of teleconference or videoconference, as appropriate. The Board's moratorium on in-person hearings remains in place, and while it is being re-assessed on an ongoing basis, it has not been decided when the Board will resume in-person proceedings.

7In September 2020, Mr. Barnes wrote to the Board and expressed concerns about my objectivity and ability to render an objective decision about his complaint. For reasons that will become clear below, I was not aware of this until late October 2020. The Board's Registrar responded, telling Mr. Barnes that he would need to identify the basis for his concerns and informing him that his concerns would need to be shared with the Vice-Chair involved and that submissions would likely be requested from both parties. Mr. Barnes replied to the Registrar with some details about his concerns.

8The Registrar invited him to share these concerns with counsel for the employer, copied to the Board so that the concerns could be brought to my attention (as the Vice-Chair involved) and arrangements could be made for submissions to be heard from both parties in advance of the upcoming hearing dates. Nothing more was heard from Mr. Barnes at that time regarding his concerns. As a result, neither counsel for the employer nor I were aware that Mr. Barnes had expressed doubts about my objectivity and ability to remain impartial and that he was objecting to me adjudicating his complaint.

9The hearing proceeded before me as scheduled on October 15, 2020, by way of a Videoconference. Mr. Barnes did not mention his September 2020 email to the Board or raise any concerns about my objectivity or ability to render an impartial decision at the start of the day's proceedings. The employer called two witnesses. The employer's first witness gave his evidence in chief and was cross-examined by Mr. Barnes. The second witness gave his evidence in chief, and Mr. Barnes started his cross-examination but did not complete it.

10On October 20, 2020, Mr. Barnes wrote to the Chair of the Board. He referenced his earlier concerns and raised additional points about the January 13, 2020 conference call and the October 15, 2020 hearing. Mr. Barnes was informed that his correspondence should be copied to counsel for the employer, which he did a few days later. Mr. Barnes also referenced and reiterated the concerns he expressed in September 2020, which were now brought to the employer's attention and my attention for the first time.

11The Board asked the employer to provide submissions in response, and Mr. Barnes replied to those submissions after hours on October 27, 2020. The October 28, 2020 hearing date was adjourned so that the concerns raised by Mr. Barnes could be fully addressed before the next hearing date, which has not yet been scheduled.

Parties' Submissions

September 2020 Concerns

12In September 2020, Mr. Barnes expressed concerns about my objectivity and ability to remain impartial based on two events: his experience in the October 3, 2019 mediation and his experience in the January 13, 2020 conference call. Concerning the mediation, Mr. Barnes raises several points, all of which suggest that in his view, it sounded to him like I agreed with the employer about several facts that were in dispute when instead I ought to have simply stated the employer's position. He also says that he presented me with evidence to disprove the employer's version of events but that I continued to agree with the employer's position. It is also evident in his September 2020 submissions that Mr. Barnes understood at the time of the mediation that if the matter did not settle, I would go on to hear the matter "in arbitration."

13The January 13, 2020 conference call was convened because Mr. Barnes opposed the employer's request to adjourn the January 21, 2020 hearing date due to its first witness's unavailability. In his September 2020 submissions, Mr. Barnes says that at one point during the call, the employer stated that the witness, who was the author of an occurrence report that the employer needed in evidence, had to be called because he (Mr. Barnes) "would not accept the occurrence report as written." Mr. Barnes asserts that he never objected to the report and that during the call, he stated that he "absolutely accept[s] everything in the occurrence report."

14At this point, says Mr. Barnes, I interjected and insisted that the witness needed to attend the hearing. Mr. Barnes says that he was confused by this because he had agreed to the report as written and that there was no need for me to inject myself into the parties' discussions. The employer's concern had been addressed and dealt with, says Mr. Barnes. The employer's witness did not need to be called, so "why does the arbitrator appear to be taking the employer's position" he asks rhetorically.

15Counsel for the employer disputes Mr. Barnes' description of what happened during this part of the conference call, saying that although Mr. Barnes may have said that he accepted the witness' occurrence report as written, Mr. Barnes also said that he did not think the witness would be truthful because he would be in a tough spot, being called as a witness by the employer. According to employer counsel, I then confirmed that it was an offence to lie under oath and said that Mr. Barnes would have an opportunity to cross-examine the witness. The employer adds that because it has the onus of proof in a discipline case and the witness would testify about disputed facts, the employer decided that it had to call the witness.

October 2020 Concerns

16In his October 20, 2020 email to the Chair of the Board, Mr. Barnes raised concerns about two procedural matters that arose during the October 15, 2020 hearing. Both relate to rulings that I made when Mr. Barnes was conducting his cross-examination of the employer's witnesses.

17First, Mr. Barnes says that the employer objected that he was not allowed to lead the witness when he was asking questions during his cross-examination of their witness. Mr. Barnes says that I allowed this objection and told him that he could not lead the witness and that he was to ask his questions and let the witness answer.

18Then, during the employer's re-direct, the employer began asking leading questions to which Mr. Barnes objected. Mr. Barnes says that he argued with me, stating that it has to be fair for both sides and that I should not have allowed the employer to enter a line of questioning that I had not allowed for him. Mr. Barnes argues that he is permitted to lead a witness during his cross-examination and that the employer should not have been permitted to do so in reply because it was their witness.

19Counsel for the employer says that she did not complain that Mr. Barnes was asking leading questions during his cross-examination of the witness. However, I did intervene. Nevertheless, says the employer, before Mr. Barnes was to start his cross-examination of the employer's second witness, counsel for the employer asked for a caucus with Mr. Barnes and I. Counsel says that she told Mr. Barnes that he could ask leading questions when he cross-examined the employer's witnesses and that if he felt he still had questions for the first witness, we could make arrangements to bring him back for him to ask anything he felt he had not covered. Mr. Barnes indicated that this wouldn't be necessary, and he commenced his cross-examination of the employer's second witness and did ask leading questions.

20Second, Mr. Barnes says that during his cross-examination of the employer's second witness, he referenced a document that was provided to him by the employer as part of its disclosure, specifically a decision of the Board. When he attempted to refer to it, the employer objected to him questioning the witness about it, and I upheld the employer's objection. Mr. Barnes says that before the hearing, he requested disclosure of everything utilized by the employer to justify his suspension and that the Board decision was part of this disclosure. He is permitted to challenge the other party's documents.

21Counsel for the employer says that a published decision of the Board was included in the employer's book of documents rather than filing it separately as an authority upon which the employer would be relying. This was an effort to expedite proceedings, which are not taking place in-person, by including everything in one package. While Mr. Barnes may have believed it was evidence, it was not. The employer says that I told Mr. Barnes that it was not appropriate to question the witness about the decision but that he could discuss the decision in final argument, and Mr. Barnes seemed satisfied with that.

22Concerning Mr. Barnes' intention to record the proceedings, the employer objects to this. Requests to record proceedings are typically denied when one party objects, as is the case here, so Mr. Barnes' request should be dismissed. The employer also observes that Mr. Barnes is free to invite a friend or support person to attend the hearing and take notes.

Analysis and Findings

23The test for a reasonable apprehension of bias is by now well settled. In Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, de Grandpré J wrote:

… 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. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly".

24In Ontario Provincial Police v. MacDonald, 2009 805, the Ontario Court of Appeal elaborated on the test, as follows:

The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, "[t]he grounds for this apprehension must… be substantial… and the test [will not] be related to the very sensitive… conscience": R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at paras. 31 and 37.

There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.) at paras. 37-39; Chainauskas Estate v. Reed (2009), 2009 ONCA 572, 251 O.A.C. 209 (C.A.) at para. 12.

25I turn first to the complainant's concerns about the October 2019 mediation. When the parties agree to med-arb (as they have in this case), the Board engages the parties in settlement discussions to help them avoid unnecessary or unduly lengthy litigation. A settlement gives the parties a resolution that they can both live with because they have agreed to the outcome. The vast majority of complaints that come before the Board are resolved without the need for litigation. Thus, the reasonable person understands that settlement discussions are a normal part of the Board's processes and a necessary feature of the Board's work in fulfilling its mandate.

26In this case, it is clear that Mr. Barnes agreed to the med-arb process and that he knew in October 2019 that I would go on to adjudicate the matter if it did not settle in mediation. He did not raise any concerns during the mediation phase about his agreement to participate in the med-arb process, nor did he raise any concerns at that time about my conduct or any statements that I made during the mediation. Instead, he waited nearly a year to do so.

27When I act as a mediator/arbitrator, it is my practice to shred any notes that I have taken during the mediation phase. The mediation took place in October 2019, and I have long since disposed of any notes from that day. Arbitration is a separate phase of the med-arb process. The merits of a complaint are determined based only on the evidence and arguments presented during that phase.

28The reasonable person understands that it is natural in mediation for a mediator to convey impressions of the relative strengths and weaknesses of the parties' cases. The reasonable person also understands that by highlighting the strengths of the other party's case and/or noting the potential weaknesses of a party's case or obstacles it must overcome, a mediator is not pre-judging the complaint or demonstrating bias. I find that my comments and conduct during the mediation would not suggest to the reasonable person that I have prejudged the case in the employer's favour.

29I turn now to Mr. Barnes' concerns about the January 13, 2020, conference call. My notes from this call indicate that after the employer's request for an adjournment was addressed, we moved to a case management discussion, and I asked for the parties' thoughts on how long it would take them to present their respective cases.

30Counsel for the employer estimated that the employer's case would take about a day to present. There was a discussion about documents, particularly a report, and employer counsel indicated that Mr. Barnes had not agreed to admit certain documents on consent, including the report. Mr. Barnes indicated that he was concerned that the author of the report, who was a SOLGEN employee, might lie. I indicated that I could not simply admit a document into evidence because it was in the file but that it would have to be entered as an exhibit through a witness unless the parties agreed otherwise. I added that both parties are free to call any witness they choose, subject to their evidence being relevant to the proceedings.

31In his expression of concerns about this call, Mr. Barnes states that he "absolutely accept[s] everything in the occurrence report" that the reason for bringing the witness had been resolved, and that there was no need for me to insist that the witness attend. In other words, there was "no reason for the arbitrator to inject himself with his own wishes" in the parties' discussions. In fact, at the hearing on October 15, 2020, the employer's witness was required to review and identify every document that was in the report because Mr. Barnes would not agree to admit them on consent. A significant amount of hearing time was spent on this. Further, my notes indicate that when Mr. Barnes later asked for a brief caucus with employer counsel and myself, he complained that it was taking a long time for the employer to question its witness. When it was observed that this was because the witness needed to identify every document, Mr. Barnes repeated that he was unwilling to agree to admit any of the documents on consent.

32The complainant is a self-represented party before the Board. He is not expected to be intimately familiar with the rules of evidence, the Board's policies and procedures, or the protocol in proceedings before the Board. To some extent, an unrepresented litigant must be shepherded through the process by the presiding Chair or Vice-Chair. The reasonable person understands that it is normal in case management discussions for the adjudicator to provide general information, but not legal advice, about how proceedings are generally conducted, particularly to unrepresented parties. In any event, I find that my comments during the conference call would not suggest to the reasonable person that I have prejudged the case in the employer's favour.

33This leads to Mr. Barnes' concerns about two procedural matters that arose during the October 15, 2020 hearing. First, Mr. Barnes says that I improperly allowed the employer's objection when he started asking the employer's witness leading questions. Specifically, this was near the start of Mr. Barnes' cross-examination of the employer's first witness. Mr. Barnes had asked several questions in a row and was not leaving enough time to allow the witness to answer. When proceedings are being conducted over Videoconference, it is even more important to leave a meaningful pause between questions and answers because only one speaker's voice can be transmitted at a time. It also appeared that Mr. Barnes was answering his own questions and giving evidence rather than asking leading questions. I intervened and suggested to Mr. Barnes that he "slow down and not answer his own questions" (or words to that effect).

34In any event, soon after this exchange, there was a brief caucus with Mr. Barnes, employer counsel and myself. Employer counsel offered to recall its first witness if Mr. Barnes had any additional questions, and Mr. Barnes said that this would not be necessary. If Mr. Barnes felt that he had not had a fair opportunity to cross-examine the employer's first witness, he declined the offer that would have allowed him to remedy the situation.

35The reasonable person, having knowledge and understanding of the adjudication process and the nature of adjudication, would therefore conclude that my intervention and attempt to assist Mr. Barnes with his line of questioning did not affect Mr. Barnes' ability to present his case.

36Finally, Mr. Barnes is concerned because I intervened when he started to question the employer's second witness about a Board decision that had been included in the employer's book of documents. I told Mr. Barnes that it was not appropriate to question the witness about the merits of a previous Board decision but that he could make submissions about the decision in final argument. Counsel for the employer added that the decision was included with its book of documents and agreed that this might have been confusing for Mr. Barnes. Mr. Barnes accepted this.

37The reasonable person, having knowledge and understanding of the adjudication process and the nature of adjudication, would understand that it was improper for Mr. Barnes to question the employer's witness on the merits of a Board decision and that my direction to him that he stop doing so was appropriate.

38Moreover, these rulings were procedural and related to the management of the hearing, which is an area that falls entirely within the prerogative of an adjudicator. The reasonable person, having knowledge and understanding of the adjudication process and the nature of adjudication, would understand that rulings of this nature do not indicate bias simply because one party disagrees with them. As a result, I find that these procedural rulings would not suggest to the reasonable person that I have prejudged the case in the employer's favour.

39I turn now to Mr. Barnes' request that he have a lawyer present and that his legal costs would be part of the remedy he is requesting. Whether and in what circumstances the Board will order that one party pay the other's costs has been previously litigated at the Board. The Board has said that while costs are generally awarded to successful parties in Court, they are not normally awarded by administrative tribunals or in the adjudication of employment matters in Ontario, either based on jurisdiction or as a matter of practice. The Board first stated this in Cardoza v. Ontario (Community Safety and Correctional Services) P-2009-1510 and then reiterated in Wallace v. Ontario (Community Safety and Correctional Services), 2015 CanLII 32427.

40On the matter of awarding legal costs specifically, the Board's approach has been clear and consistent: awards of costs are reserved for the most egregious examples of employer misconduct. While Mr. Barnes is free to retain counsel for the balance of these proceedings, any decision on whether he would be awarded legal costs would be made following a determination of the matter on the merits, taking into account the Board's previous decisions.

Summary and Disposition

41I find that the complainant has provided no basis upon which a reasonable and informed person, with knowledge of all of the relevant circumstances, viewing the matter realistically and practically, would conclude that my conduct in these proceedings gives rise to a reasonable apprehension of bias. As a result, the complainant's request that I recuse myself from continuing to hear this matter is dismissed.

42It is the complainant's decision whether to retain legal counsel for the balance of these proceedings. The issue of awarding legal costs would be made following a determination of the matter on the merits and is likely to be in line with the Board's previous decisions.

43Finally, it is the Board's practice that recording of its proceedings is not allowed. Notetaking is the usual way that the parties and the Board keep track of evidence and arguments. There is no reason to depart from this practice in this case.

44I remain seized.