BETWEEN:
EVELYNE MALEC, SYLVIE MALEC, MARCELLINE KALTUSH,
MONIQUE ISHPATAO, ANNE B. TETTAUT, ANNA MALEC,
GERMAINE MESTÉNAPÉO, ESTELLE KALTUSH
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CONSEIL DES MONTAGNAIS DE NATASHQUAN
Respondent
DECISION ON REQUEST
MEMBER: Shirish P. Chotalia, Q.C.
2011 CHRT 15
Tribunal Chairperson
2011/09/29
[1]
The issue in this case arises from the decision in Conseil des montagnais de Natashquan v.
Malec, 2010 FC 1325, rendered on December 23, 2010, in which the Honourable Madam Justice
Tremblay-Lamer found that the Tribunal erred when it determined that there was no evidence on
the record justifying the prima facie discriminatory policy of the Conseil des montagnais de
Natashquan (the Conseil). For that reason, the judge allowed the application for judicial review
and referred the file back to the Tribunal for a new hearing. Her judgment reads as follows:
THE COURT ORDERS that the application for judicial review be allowed, that the
decision be set aside and the matter be referred back to a member or panel of the
Canadian Human Rights Tribunal for redetermination in accordance with these
reasons. With costs. (Emphasis added)
[2]
The judge therefore did not specify whether the same panel or a differently constituted
panel should have the burden of redetermining the matter. Thus, I must determine whether it is
appropriate, in light of the objections made by the respondents, to assign the file to member Doucet
again so that he may decide on the matter in accordance with the reasons of Madam Justice
Tremblay-Lamer.
[3]
The respondents maintain that the impartiality rule as well as the nemo judex in sua causa
rule dictate that a different member must be assigned to this case, failing which, member Doucet
may create a reasonable apprehension of bias. In fact, according to the respondents, by reviewing
his own decision, he would probably be led to confirm it. If I were to reject this motion, the
respondents alternatively submit that member Doucet should recuse himself.
[4]
The issue of apprehension of bias raised when a judge is called on to redetermine a matter
that he or she already decided on has been widely examined by the courts. The case law on this
subject is unequivocal: a judge who has already made a ruling on certain aspects of a case may
again make a ruling in a proceeding arising from the same case, provided that the situation does not
as such create bias or the appearance of bias: R. v. Perciballi, [2001] O.J. No. 1712 at para. 2. (See
Barthe v. The Queen, [1964] 41 C.R. 47; Ahani v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1114 at para. 7; Nord-Deutsche Versicherungs Gesellschaft et al.
2
v. The Queen et al., [1968] 1 Ex.C.R. 443 (Nord-deutsche Versicherungs Gesellschaft); Charkaoui
(re), 2004 FC 624 at paras. 5 to 8 (Charkaoui) and Ianvarashvili c. Canada (Minister of
Citizenship and Immigration), 2004 FC 695 at para. 9.
[5]
The application of this principle in the administrative context was examined by
Donald J. M. Brown and John M. Evans in their work "Judicial Review of Administrative Action
in Canada" loose-leaf edition (Toronto, Canvasback, 2003). The Honourable Mr. Justice Rothstein
cited paragraph 12:6320 of this work in Gale v. Canada (Treasury Board), 2004 FCA 13. It reads
as follows:
When the tribunal reconsiders a matter either on its own motion or following
judicial review it must, of course, comply with the duty of fairness. . . . And unless
a court orders otherwise, while the same persons who decided the matter on the first
occasion may normally also rehear it, they should not do so where they were earlier
disqualified for bias, or if for any reason, there is a reasonable apprehension that the
original decision-maker is not likely to determine the matter objectively.
[6]
Thus, there is a presumption that a member, such as member Doucet in this case, will
comply with the duty to act fairly and that he or she is able to rehear a matter unless there is a
reasonable apprehension of bias (see S.I.D.M. v. British Columbia Maritime Employers
Association, [1987] 81 N.R. 237, at para. 6 (F.C.A.); Deigan v. Canada (Industry), [2000] 258
N.R. 103, at para. 3 (F.C.A.)). Based on that criterion, as it was established in Committee for
Justice and Liberty v. Canada (National Energy Office), [1978] 1 S.C.R. 369 at p. 394 (Committee
for Justice and Liberty), it must be determined what . . . an informed person, viewing the matter
realistically and practically – and having thought the matter through – [would] conclude. Would he
think that it is more likely than not that the member Doucet, whether consciously or unconsciously,
would not decide fairly?
[7]
The burden to demonstrate bias is on the person who is relying on it: R. v. S. (R.D.), [1997]
3 S.C.R. 484 at para. 114 and Miglin v. Miglin, 2003 SCC 24 at para. 26. It is therefore for the
respondents to demonstrate that member Doucet would not be impartial if he had to rehear this
matter.
3
[8]
The respondents claim that member Doucet would not be impartial because of the simple
fact that he had already decided on the issue. However, the case law cited above is clear that there
is
a
presumption
of
impartiality
with
regard
to
members,
and,
in
my
opinion,
the
respondents’ argument is far from demonstrating that there is a serious and unequivocal
apprehension of bias: Arthur v. Canada (Minister of Employment and Immigration) (C.A.), [1993]
1 F.C. 940 at para. 8 and Committee for Justice and Liberty at para. 41.
[9]
In addition, the respondents are basing their position on the Supreme Court of Canada’s
decision in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public
Utilities), [1992] 1 S.C.R. 623 (Newfoundland Telephone). In that case, when a matter the hearing
for which was still in progress was before a commissioner, he made some public statements,
which, to a reasonable observer, would have seemed to indicate that he had already made his
decision before the Board had even heard all of the evidence. The Supreme Court of Canada found
in that context that there was sufficient evidence to raise a reasonable apprehension of bias and that
any order of the Board had to become void.
[10]
However, the facts of this case are nothing like those in Newfoundland Telephone. Indeed,
none of the parties has alleged that member Doucet had said anything or acted in a way that would
raise a reasonable apprehension of bias inside or outside the courtroom. Consequently, apart from
the fact that it stresses one more time the importance of the impartiality rule, I do not believe that
Newfoundland Telephone is useful to us in this case.
[11]
In my view, the facts in Gale (cited above) are more similar to the facts of this case. In that
case, the Federal Court of Appeal decided that not only did the fact that the adjudicator had failed
to consider some of the evidence before making his decision not raise an apprehension of bias but,
on the contrary, it put the adjudicator in a better position to assess the impact of the evidence at
issue on his decision: Gale at paras. 18 and 19. Although in that case one of the parties had to but
had not yet submitted a piece of evidence to the adjudicator, and in this case the evidence in
question was before member Doucet, the main facts are the same: a failure of the adjudicator or
4
member to consider some of the evidence does not in itself create a reasonable apprehension of
bias.
[12]
In light of this analysis, I find that the respondents did not provide the evidence necessary
to displace the presumption of integrity and impartiality enjoyed by member Doucet. In addition,
judicial efficiency as well as the member’s previous knowledge of the file (see Nord-Deutsche
Versicherungs Gesellschaft at p. 458), militate in favour of the file being assigned to him so that he
may redetermine it in light of the reasons of Madam Justice Tremblay-Lamer.
[13]
For these reasons, I assign the file to member Doucet and give him the discretion to
determine his own procedure. He will then be able to decide on other issues raised by the parties,
namely, whether he should recuse himself, whether a new hearing is needed and whether the
Canadian Human Rights Commission should participate.
Shirish P. Chotalia, Q.C.
Tribunal Chairperson
OTTAWA, Ontario
September 29, 2011
CANADIAN HUMAN RIGHTS TRIBUNAL
PARTIES OF RECORD
TRIBUNAL FILE:
STYLE OF CAUSE:
RULING OF THE TRIBUNAL DATED:
APPEARANCES:
Daniel Jouis
François Lumbu
John White
T1318/4808
Evelyne Malec, Sylvie Malec, Marcelline
Kaltush, Monique Ishpatao, Anne B. Tettaut,
Anna Malec, Germaine Mesténapéo, Estelle
Kaltush v. Conseil des Montagnais de
Natashquan
September 29, 2011
For the Complainants
For the Canadian Human Rights Commission
For the Respondent
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