APPENDIX: CASE LAW SUMMARIES

B: NATURAL JUSTICE

DUBINSKY, J. IN CUB 8202 (GAUTHIER)

The principles of natural justice are the fundamental rules of fair procedure, which require:

(1) A power of decision exempt from all subjectivity in the legal sense of the term and

(2) For those affected by the decision, the right to a fair hearing.

A fair hearing presupposes:

(1) Sufficient notice of the holding of the hearing

(2) The right to be heard

(3) The right to know the allegations made against a party, and

(4) The opportunity to plead one's case.

The appellant had excellent knowledge of the allegations made against her and she was given a full opportunity to reply to them, which she did. She was given appropriate notice of the time and place of the hearing of the board. She was present and pleaded her case.

MARCEAU, J. IN CUB 45671 (MOREAU)

We wish to emphasize the decision in Jean-Yves Thibault (CUB 20370A), where Rouleau J. quoted Professor Garant and the Supreme Court as follows:

Faced with a situation that might compromise the impartiality of a tribunal, doctrine and the case law are clear, and provide as follows. If one of the parties to a dispute had knowledge, at the time of the hearing, of a situation giving rise to a reasonable apprehension of bias, that party must raise the issue or otherwise will be presumed to have waived the right to invoke it. It will then be presumed that the party did not fear that the tribunal was biased. The case law seems to be clear on this point. [TRANSLATION] (1)

There is no doubt that, generally speaking, an award will not be set aside if the circumstances alleged to disqualify an arbitrator were known to both parties before the arbitration commenced and they proceeded without objections. (2)

P. Garant, Droit administratif, 3rd ed., Cowansville, Les Éditions Yvon Blais Inc., 1991.

Ghirardosi v. Minister of Highways for British Columbia, (1966) S.C.R. 367, 372.

REED, J. IN CUB 21324 (PAQUETTE)

I have listened to the tape and am convinced that the claimant did not receive an adequate hearing. The Chairman continually interrupted the claimant in the presentation of his case, preventing him from completing the thought he was putting forward. The Chairman almost seemed to be playing the role of advocate for the Commission's position rather than attempting to make an independent and objective decision. When the claimant offered to produce copies of his job search, evidence which is relevant to the issue of availability, the Chairman declined to receive it.

ROULEAU, J. IN CUB 12699 (SUPRUNIUK)

The concept of "natural justice" includes the right of a claimant to a fair hearing. So fundamentally important is this right, that there must not exist even the appearance of prejudice to the right of any claimant to make a full presentation before an unbiased Board of Referees. The law requires that not only must justice be done, it must manifestly and undoubtedly be seen to be done The mere suspicion that a claimant has been denied his right is justification in itself for an order returning the matter to the Board of Referees.

MCNAIR, J. IN CUB (STASIUK)

I have since listened to the tape of the proceedings before the Board ofReferees. Like Strayer J. in CUB , Basi, I am satisfied that the claimantdid not have a fair hearing. The impatient, argumentative andconfrontational attitude displayed by one member of the Board, whom Iam unable to positively identify, leads me to conclude that the wholeproceeding was tainted by bias in the sense that a reasonably wellinformedperson would conclude from the comments or statements ofthat member that the full panel would exercise a biased judgment on the issue to be resolved, namely, whether the claimant lost his employment with Canada Post by reason of his own misconduct.

MCNAIR, J. IN CUB (KAASGAARD)

On reviewing the record, I am left with little doubt that the chairperson'saggressive and hostile questioning of the claimant at the hearing raised areasonable apprehension of bias by creating in the claimant's mind thedistinct impression that he was not going to get from the Board of Refereesa fair and impartial hearing of his appeal. It is my opinion that hearings ofunemployment insurance appeals before boards of referees must preserveat all times a reasonable standard of detachment and the appearance ofjustice being seen to be done, and that this standard is not well served byembarking on a confrontational question and answer type of inquisitorialproceeding.

I find that the Board refused the claimant's right to cross-examine exceptthrough the chairperson, who mentioned on page that he did not wantto have any cross-examinations. Either of these comments is a restrictionon a party's right to cross-examine and is an impediment that I find to beneither necessary nor justified.

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