CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.1. General Characteristics of Administrative Proceedings

1.1.2 Independence and Impartiality

1.1.2.2 Impartiality

1.1.2.2.1 Individual Aspect

From an individual point of view, "impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case".^{136 Citation 136} It suggests "an absence of bias, actual or perceived". It is the "state of mind of an arbitrator who is disinterested in terms of the outcome and who is likely to be persuaded by the evidence and the arguments submitted".^{137 Citation 137} Bias "may be deduced from both the state of mind and conduct".^{138 Citation 138}

A reasonable apprehension of bias has given rise to rules governing removal and grounds for challenging the decisions rendered by tribunals whose members are placed or find themselves in the situations referred to in the case law. This apprehension must be reasonable and serious; it must not be based solely on suspicions that are more or less imaginary.^{139 Citation 139} It is necessary to show that "the threshold for a finding of real or perceived bias is high".^{140 Citation 140} The onus of establishing bias lies with the person alleging that it exists; thus, a party who is aware of a ground for removal but does not raise it at the appropriate time is deemed to have waived this ground.^{141 Citation 141}

Parliament may have expressly or implicitly permitted or authorized a situation that, in another context, could have given rise to a reasonable apprehension of bias. This is the case with professional disciplinary tribunals where it is accepted that a professional should be tried by his or her peers.^{142 Citation 142} It is also true of those tribunals in which particular groups or communities are equally represented.^{143 Citation 143} Thus, s. 111 Section 111 of the Act of our Act cannot be impugned in this regard to the extent that it provides that one of the members shall be chosen to represent the community of employers and the other the community of insured persons.

Four main categories of situations have been recognized as giving rise to a reasonable apprehension of bias and they can be linked to the concept of conflicts of interest.

The conflicts of interest involved here are situations in which a person is liable to prefer his or her personal interest (links of blood, friendship or business) to the detriment of the public interest, that is to the detriment of the superior interest of administrative justice.

Parliament often includes in the incorporating act of certain administrative tribunals provisions designed to prevent this kind of conflict of interest. Moreover, the common law has long since required any holder of a quasi-judicial power not to have any financial interest in a dispute he or she is required to decide.

It would appear that recent decisions have attempted to reintroduce the reasonable person test and to leave it to the courts of law to determine whether there is really any reason to fear that a given member of a tribunal is biased solely because he or she has minimal or remote financial or economic interests relating to the case he or she is required to decide.^{144 Citation 144}

Conflicts of interest of a moral or psychological nature result from links of blood, friendship or membership in an association or organization whose objectives are not financial or professional. In Ladies of the Sacred Heart,^{145 Citation 145} it was found that there was a reasonable apprehension of bias in a member of the tribunal whose wife was a member of the management of one of the parties to the dispute.

Conflicts of interest of a "professional nature" that have been punished by the courts are based on those conflicts resulting from the creation of links of a professional nature between one of the parties to the dispute and one of the members of the tribunal deciding a case. It should be noted that this can include business relationships in the broad sense. The case law has recognized that a business relationship between a member of a tribunal and a party appearing before it is sufficient to create a reasonable apprehension of bias.^{146 Citation 146}

Any professional may have rendered professional services to one of the parties to a case that the professional is then responsible for hearing as a member of the tribunal: from this fact alone a reasonable apprehension of bias will not arise. The question or questions to which these services related must be substantially or at least partly the same as those later submitted to the tribunal.^{147 Citation 147} Thus, a member of an administrative tribunal is not technically prevented from acting as the lawyer or representative of other individuals before the same tribunal if it involves a completely different docket. However, this question may be regarded from an institutional aspect, as will be discussed below.

On the other hand, the fact that a member of a tribunal is employed by one of the parties does not in itself constitute a situation that would create a reasonable apprehension of bias.^{148 Citation 148} This last situation often causes problems, especially in labour relations organizations.^{149 Citation 149} It has been held in those cases that the assessor or arbitrator would have to have taken part in the hearing and deliberations. The employer is deemed to know of the relationship between a union assessor and the union. The same is true in the reverse situation: this is, moreover, what was held by the Quebec Court of Appeal when it dismissed the application to disqualify a union arbitrator who had acted as chairperson of a union grievance committee.^{150 Citation 150}

The situation where a person hears an appeal from his or her own decision is one that must be avoided. In fact, the case law has held that if an individual is entitled to a true appeal, this appeal involves a quasi-judicial process. A person sitting on appeal from his or her own decision may well be tempted to affirm the decision and this would lead a reasonable person to conclude that he or she was "biased".^{151 Citation 151} 

Administrative tribunals accordingly have a duty to respect the rule of impartiality and to ensure that a person or a group of persons is not required to review its own decision unless the law makes express or implicit provision for this, as is the case with our s. A. 120. However, the rehearing in that case is not an appeal since it involves different facts.

The case law has also held that another situation creating a reasonable apprehension of bias is the fact that a person sitting on a tribunal has himself or herself filed the complaint or made the allegation on which the tribunal must express an opinion or has even recommended that this complaint be laid or urged others to file it. Such a situation could occur if a board member gives advice to a claimant while filing the appeal.

Finally, an administrative judge may violate the principle of impartiality through his or her conduct prior to or during the hearing. The basic principle that should guide us in describing this situation is the following: the members of the tribunal are supposed to have the necessary maturity to set aside their own preconceived ideas or their earlier more or less biased conduct. However, certain situations are regarded as too important for the serious apprehension of bias to be dispelled from the mind of a reasonable person.^{152 Citation 152}

We should first note that the earlier conduct must be clearly such as to permit a finding that there is a reasonable apprehension of bias.^{153 Citation 153} Thus, it has been held that the fact that some members of a labour relations commission had previously helped the employees to organize a union gave rise to a reasonable apprehension of bias when these employees submitted an application for certification.^{154 Citation 154} However, the case law is cautious and hesitant to recognize that such earlier conduct would give rise to a reasonable apprehension of bias.

If a tribunal member has made earlier statements on the actual subject of the dispute he or she is deciding, there will not necessarily be a reasonable apprehension of bias. Thus, a member of the Labour Relations Board who had stated earlier that the facts did not justify a strike by the employees in question was not disqualified from later hearing a case relating to the issuance of an order to cease an unlawful strike.^{155 Citation 155} The earlier statements would have to constitute "the expression of a definite opinion on the question".^{156 Citation 156} The expressions of opinion, especially if they are conveyed by the media, would have to be excessive and indicate a real prejudice.^{157 Citation 157}

Current conduct is also likely to indicate bias. If a member of the tribunal adopts an attitude that is clearly hostile to one of the parties, there are grounds for a reasonable apprehension that this tribunal member is prejudiced and this will give rise to a possibility of removal, disqualification or quashing of the decision rendered. The Court of Appeal has recognized that if the presiding judge of an inferior court ejects a friend of the accused and announces that he was surrounded by swindlers, the judge creates an atmosphere that is not conducive to the administration of justice.^{158 Citation 158} Similarly, violent verbal altercations with counsel for one of the parties are considered to show a hostile attitude. It has even been concluded that there was a reasonable apprehension of bias because of hostile conduct as a result of the way in which the questions were asked and the fact that one aspect rather than another was emphasized.^{159 Citation 159}

It must nevertheless be shown that the hostility displayed by this tribunal or tribunal member toward a party is clearly characterized. Thus it has been held that close questioning by the members of a tribunal was not sufficient to quash a decision if there was otherwise sufficient evidence to support it.^{160 Citation 160} The existence of animosity on the part of a disciplinary board may be overcome by proven facts and by compliance with the audi alteram partem rule.^{161 Citation 161} Finally, a Court of Appeal held that a [Translation] "fleeting lack of serenity" and "a moment of impatience" were also not sufficient to constitute a denial of natural justice.^{162 Citation 162} Such is the state of general administrative law.

According to our case law, boards of referees must examine cases impartially, maintain a certain distance from the Commission and avoid being seen as siding ahead of time with the Commission's position.^{163 Citation 163} The members and the chairperson must fully understand their role as being that of a judge who depends on none of the parties: "the board sits as an impartial and independent tribunal and not as a mere creature of the Commission".^{164 Citation 164} The chairperson must not appear to be the "representative of the Commission" or refer to the other members as representing "claimants" or "employers".^{165 Citation 165}

Some conflict of interest situations of a professional or psychological nature have been noted. In one case, a board had to decide a dispute involving an especially sensitive dismissal. One of the members was at the time acting as a notary for the employer on the record and this should have required him to recuse himself.^{166 Citation 166} In another case, it was held that the fact that the chairperson clamed to have known the claimant for 20 years "leads to an apprehension of bias if he continues to sit".^{167 Citation 167} However, the simple fact that a member calls the representative of the claimant by his first name was not considered sufficient to [TRANSLATION] "cloud his objectivity".^{168 Citation 168} It was also held that the family links between an appellant and a member of the board "create an appearance of bias that constitutes a denial of natural justice";^{169 Citation 169} the same was true where a board member was a friend of the employer,^{170 Citation 170} as was the fact that a board member was a friend of the employer and a member of the same golf club.^{171 Citation 171} However, the fact that a member had been on a panel hearing a case involving a relative of the applicant "does not constitute bias in law".^{172 Citation 172}

The rule that a judge must not sit in appeal of his or her own decision has been upheld on many occasions. Where a board holds a second hearing on or inquiry into the same question and consists of the same members, there is a violation of natural justice.^{173 Citation 173} However, the rule is not violated where the board hears a different dispute or question.^{174 Citation 174} The mere fact that the Umpire refers a case back to the same board for a full hearing does not violate the rule.^{175 Citation 175}

The chairperson and members must not, in their earlier conduct, lay themselves open to criticism with respect to their duty to be impartial. Thus, there must be no communication before the hearing between the claimant and a member of the board, especially if the latter assures the claimant that he or she will represent the claimant.^{176 Citation 176} The chairperson must not receive information prior to the hearing unbeknownst to the claimant and his or her counsel.^{177 Citation 177}

During or at the hearing the conduct or attitude of the chairperson and the members must be such that they give an impression of neutrality. Thus, decisions have held that there was a violation of natural justice when one member made injurious remarks about the claimants and their representative.^{178 Citation 178} It is also reprehensible when a chairperson verbally hassles a claimant and threatens him or her with criminal prosecution.^{179 Citation 179} It has been held that "the impatient, hair-splitting and aggressive attitude displayed by a member leads to the conclusion that the hearing was tainted by bias".^{180 Citation 180} Any hostile attitude displayed by a member raises a reasonable apprehension of bias.^{181 Citation 181} Nevertheless there is a difference between being hostile and having little sympathy for an appellant whose appeal has scarcely any basis.^{182 Citation 182} Furthermore, some interventionism on the part of the chairperson or members does not breach natural justice.^{183 Citation 183}

What is the case where other attitudes, for example impatience, are displayed? It seems that such displays must be fairly vehement or strained.^{184 Citation 184} The board must not give the claimant's representative the clear impression "that he is talking to a wall".^{185 Citation 185}

The parties must always be given equal treatment. During the hearing a chairperson happened to absent himself on two occasions "to check something with the Commission";^{186 Citation 186} that is a display of bias. After the hearing, the board will breach its duty to be impartial if it hears the employer's representative in the absence of the claimant and his or her representative.^{187 Citation 187} Similarly, after the hearing, there will be a violation of natural justice when a member conducts a long informal conversation with one of the parties.^{188 Citation 188}

Section 78 of our Regulations   Section 78 of the Regulationssets out three types of situations in which the chairperson or a member may recuse himself or herself: where he or she was or is a representative of the claimant or the employer in the case in question, where he or she has taken any part in the proceedings either on behalf of an association or as a witness or otherwise and where he or she is or may be directly affected. These restrictions must be interpreted in light of administrative law. Although a prohibition must be announced, we feel that it must be requested, especially if it is known to the parties.

In all cases, if the reason for withdrawal is not known to the parties, the member of an administrative tribunal should mention it when the hearing opens.^{189 Citation 189} The parties may then waive reliance on it. Otherwise, the chairperson must render an opinion before hearing the case or sustaining the objection subject to a reservation while undertaking to reply to it in the tribunal's decision on the merits.

 

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