Date: 20001127
Docket: A-165-99
CORAM: ROTHSTEIN J.A.
McDONALD J.A.
SHARLOW J.A.
BETWEEN:
PURANDHAR SETLUR
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
HEARD at Toronto, Ontario, on Thursday, October 26, 2000
JUDGMENT delivered at Ottawa, Ontario, on Monday, November 27, 2000
REASONS FOR JUDGMENT BY: McDONALD J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
Date: 20001127
Docket: A-165-99
CORAM: ROTHSTEIN J.A.
McDONALD J.A.
SHARLOW J.A.
BETWEEN:
PURANDHAR SETLUR
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.
[1] The appellant appeals an Order of the Trial Division dismissing his application for judicial review of an interlocutory decision by an Appeal Board Chairperson of the Public Service Commission of Canada whereby the Chairperson refused to disqualify herself from hearing his appeals brought before the Board pursuant to section 21 of the Public Service Employment Act.1 The decision of the Chairperson not to recuse herself was made in respect of a series of events which arose in the course of appeal proceedings before the Board which, according to the appellant, had the effect of raising a reasonable apprehension that the Chairperson was biased. The disposition of this appeal depends upon the proper characterization of these events. Accordingly, the facts leading up to the Chairperson's decision merit close scrutiny.
The Facts
[2] The appellant had been employed as a clerical worker with Revenue Canada for approximately ten years when, in November of 1996, he applied for two positions described as Tax Auditor/Audit Officer-GST (PM 2), also with Revenue Canada, pursuant to a closed competition. He passed the initial screening for these positions and subsequently wrote an exam on November 26, 1996. He was then invited to attend an oral examination in January of 1997. As it happened, the appellant did not make the eligibility list for either of the applied-for positions. He appealed the decisions excluding him from the eligibility lists. The appeals came on for hearing before the Appeal Board Chairperson on August 7, 1997 and continued on August 25 and September 4, on which date the hearings were adjourned. They resumed on October 6, 1997 and continued on October 7 and 23 and on November 3 and 24.
[3] The appellant was represented before the Chairperson by legal counsel. Revenue Canada was represented by Human Resources Advisor, Ms. Ruth Fox. At the opening of the hearing, Ms. Fox expressed surprise that the appellant had obtained counsel and stated that Revenue Canada was at somewhat of a disadvantage by that fact. In reply, the appellant's counsel suggested to Ms. Fox that Revenue Canada also seek legal representation before the Board. Apparently, this advice was not taken, and the hearing continued until adjourned on September 4, 1997.
[4] In the month of August, the appellant asked his lawyer to request copies of the hearing tapes. Apparently, his counsel phoned Ms. Odette Alain at the Office of the Public Service Commission of Canada and made the request on behalf of his client. Upon consulting the Registrar's Office in Ottawa, Ms. Alain informed the appellant's counsel that the tapes would not be made available during the pendency of the hearing but only after the hearing was completed.2 On the morning of September 4, 1997, the appellant repeated the request for the hearing tapes to the Chairperson. The Chairperson replied the following:
| Yes, well, I believe a call came from your representative regarding the tapes. The tapes would be available at the end of the -- once the decision is rendered.3 |
[5] Prior to the continuation of the hearing on October 6, 1997, the Chairperson contacted Ms. Fox and counsel for the appellant in order to coordinate the rescheduling of hearing dates. She spoke with the appellant's counsel and left a message for Ms. Fox. Ms. Fox later returned the Chairperson's call. During that conversation, Ms. Fox raised concerns that she and Selection Board Chairperson John Tkaczyk had about "the tone of the hearing, the manner in which the appellant's allegations were being presented, and the attacks upon Mr. Tkaczyk's integrity".4 The Chairperson indicated to Ms. Fox that it was not appropriate for her to express these concerns off the record but undertook to raise those concerns when the hearing resumed. According to the affidavit evidence, the Chairperson further suggested to Ms. Fox that she contact senior human resources personnel with Revenue Canada about her concerns.
[6] At the recommencement of the hearing on October 6, 1997, the Chair informed counsel for the appellant of the concerns raised by Ms. Fox and asked Ms. Fox if she would like to discuss those concerns at that time. Counsel for the appellant remarked that he would have expected Ms. Fox to discuss with him personally any concerns she might have had with the proceedings. Ms. Fox did not mention anything further about her concerns at that time and continued to represent Revenue Canada until the end of October, 1997.
[7] By way of a fax-letter dated October 30, 1997, Mr. R. Jaworski, a lawyer at Justice Canada, notified the Appeals Division that he had been retained by Revenue Canada to act as departmental representative for the appellant's appeal. Mr. Jaworski asked for an adjournment of the hearing in order to review the evidence and testimony that had come before the Board to date and in order to consider the law applicable to the matter. Mr. Jaworski also requested access to the tapes of previous testimony which he offered to share with counsel for the appellant. A copy of this letter was sent to the appellant's counsel on October 30 or 31, 1997.
[8] On October 31, 1997, counsel for the appellant sent a letter to the Appeals Division confirming receipt of Mr. Jaworski's letter and opposing his request for the hearing tapes on the basis that the appellant had requested access to the tapes earlier in the proceeding and was refused. In a letter dated the same day, the Chairperson informed Mr. Jaworski that copies of the hearing tapes would be provided to both sides as soon as possible and that, given counsel for the appellant's opposition to an adjournment, she would hear submissions from the parties on that matter at the continuation of the hearing on November 3, 1997.
[9] At the hearing on November 3, counsel for the appellant argued that Revenue Canada should not be given the advantage of an adjournment at this late date because it had clearly chosen not to obtain legal representation sooner. The appellant's counsel also renewed his objection to the release of the hearing tapes. The Chairperson decided to release the tapes and to grant the adjournment requested by Mr. Jaworski. At this point, counsel for the appellant submitted that the Chairperson ought to recuse herself. The Chairperson set aside November 24 to hear submissions from the parties on the issue of her disqualification.
[10] On November 9, the Chairperson received a voice-mail message from Mr. Louis Vigneault, team leader of the Human Resources Department at Revenue Canada, requesting advice with respect to the requirement for the Selection Board Chairperson, Mr. John Tkaczyk, to appear before the Board on November 24, 1997. Mr. Vigneault's concern apparently arose from the fact that Mr. Tkaczyk was scheduled to attend a conference in Vancouver on that day. According to affidavit evidence, the Chairperson left Mr. Vigneault a voice-mail message advising him that it was inappropriate to initiate contact with her and suggesting that if there was a scheduling conflict he should inform all parties by facsimile immediately.
[11] At the hearing on November 24, counsel for the appellant submitted that a reasonable apprehension of bias had been raised due to the differential treatment accorded to the parties regarding the release of the tapes and the Chairperson's allegedly negative attitude towards the appellant after the telephone call with Ms. Fox. Mr. Jaworski, counsel for Revenue Canada, agreed that the contact between the Department and the Chairperson should not have been made and that a perception of bias did arise from the Chairperson's contacts with Ms. Fox and Mr. Vigneault. Indeed, Mr. Jaworski noted that the appellant's affidavit prepared for the disqualification hearing made "reference to the fact that H.R. Consultants are in the practise of approaching chairpersons and discussing issues of hearings in the absence of candidates and/or their representatives, and regretfully it would appear that my client has done so a second time in this -- this case."5 Accordingly, Mr. Jaworski submitted that he "[could] see where an other -- another person standing back might have some apprehension ... as to the Department's attempt to influence you..."6 Mr. Jaworski concluded that the best way of avoiding any further issue of impartiality was for the Chairperson to disqualify herself and a new hearing held before a different chairperson.
Decision of the Chairperson
[12] On December 17, 1997, the Chairperson decided not to recuse herself. She held that tape recordings of appeal hearings are not normally released unless there are reasonable reasons for doing so. The Chairperson considered that a change of counsel, for either party, would be an example of an acceptable reason for requesting access to the tapes. However, she stated that when the appellant requested access to the tapes, he provided no reasons for his request. By contrast, Mr. Jaworski's request was necessitated by his having missed five days of testimony before the Board.
[13] The Chairperson regretted the telephone calls made to her by both Ms. Fox and Mr. Vigneault. However, she concluded that both calls were made only in respect of administrative issues and did not include any discussions on the merits of the case. Accordingly, the calls were not intended to influence the course of the hearing. The Chairperson also noted that both individuals were informed that such contact was inappropriate, and the appellant was informed of the communications "at an early opportunity".
[14] On these bases, the Chairperson concluded that her decision to release the hearing tapes and the ex parte contacts made with Ms. Fox and Mr. Vigneault were of insufficient significance to raise a reasonable apprehension of bias on her part.
Decision of the Trial Judge
[15] The appellant applied to the Trial Division to have the Chairperson's decision quashed and set aside. On February 17, 1999, the Court dismissed his application. The Trial Judge endorsed the Chairperson's decision to grant Revenue Canada an adjournment to allow Mr. Jaworski to acquaint himself with the file, noting that a party retains the right to obtain legal representation at any stage in a proceeding. The Chairperson was simply under a duty to ensure that an adjournment would not cause prejudice to any other party. In this respect, the Trial Judge agreed that no such prejudice arose from the granting of an adjournment.
[16] The Trial Judge also rejected the appellant's complaint that a double standard had been applied with regard to the release of the hearing tapes. He noted that the appellant offered no reasons in support of his request when it was made in the absence of his lawyer on September 4, 1997. The Chairperson's decision to release the tapes upon request by Mr. Jaworski was based on reasonable grounds and therefore was not the product of any double standard.
[17] As to the Chairperson's ex parte communications with Ms. Fox and Mr. Vigneault, the Trial Judge concluded that the contacts were "fully, clearly and credibly explained by the Chairperson" and caused no prejudice to the appellant. Though the Trial Judge referred to the leading case on what constitutes improper interference in judicial independence,7 he distinguished it from the facts before him on the basis that the Chairperson is not a judge but a member of an administrative tribunal which has control over its own procedure in order to ensure that justice is done with procedural fairness.
[18] Finally, the Trial Judge refused to give any weight to Mr. Jaworski's opinion expressed at the disqualification hearing that the Chairperson should recuse herself. He considered that Mr. Jaworski expressed that opinion because he was "frustrated by the fact that the conduct of two employees of his client were inaccurate and particularly that Mr. Vigneault tried to reach the Chairperson behind his back".8
Analysis
[19] The test for reasonable apprehension of bias was set out in Committee for Justice and Liberty v. National Energy Board9 where De Grandpré J., writing in dissent, stated at page 394:
| [T]he 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 a 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". |
This test has been endorsed by the Supreme Court on numerous occasions, most recently in Mavis Baker v. Canada (Minister of Citizenship and Immigration).10 Therefore, if an informed member of the community, viewing the matter realistically and practically, were to apprehend bias in the conduct of the Board Chairperson in this case, she should be disqualified.
Ex Parte Communications
[20] I should state here that the Chairperson set events in motion when she chose to contact the parties separately in order to reschedule some of the hearing dates. Though she characterized her conversation with Ms. Fox, referred to in paragraph 5 above, as originating from Ms. Fox, it is clear that Ms. Fox was simply returning the Chairperson's telephone call. Despite chastising Ms. Fox for raising concerns regarding the tenor of the hearings in the absence of the appellant or his counsel, the Chairperson nonetheless offered advice to the effect that Ms. Fox should consult with senior Human Resources personnel about any reservations she might have about the proceedings.
[21] The Chairperson emphasized that the appellant was advised of the communications at "an early opportunity". However, it appears from the transcript that the appellant and his counsel came to learn of Mr. Vigneault's intervention from Mr. Jaworski, not the Chairperson.
[22] A registrar has been assigned to this matter, and it was not explained why the Chairperson would personally have contacted the parties about procedural matters rather than the registrar nor why she would initiate separate calls rather than a conference call with both sides at the same time.
The Hearing Tapes
[23] The Chairperson justified her decision to release the tapes at Mr. Jaworski's request on the basis that good reasons existed for doing so. Specifically, Mr. Jaworski had been retained after the hearing was underway and needed time to familiarize himself with the five days of testimony that had already been heard. By contrast, the Chairperson indicated that the appellant offered no reasons for his request earlier in the hearing. However, it is clear on the face of the transcript that the appellant was not given an opportunity to advance any reasons in support of his request. The Chairperson never asked him for reasons and disposed of the issue by saying that the tapes would only be made available "once the decision is rendered". Given that she did not ask the appellant why he wanted the tapes, that his lawyer was not present due to illness, and that she summarily dismissed his request, I cannot accept the Chairperson's explanation as stated in her decision that the appellant provided no reasons for his request for the tapes.
Revenue Canada's Counsel's Submissions on Apprehension of Bias in the Chairperson
[24] The Chairperson and the Trial Judge did not give any weight to Mr. Jaworski's opinion at the disqualification hearing that the Chairperson should recuse herself. The Chairperson failed to engage Mr. Jaworski's position in her ruling. The Trial Judge, however, specifically stated that he was not bound by Mr. Jaworski's opinion because it stemmed from a frustration at the conduct of his client's employees in contacting the Chairperson off the record.
[25] I fail to see any significance in the motivation for Mr. Jaworski's submissions at the disqualification hearing. Whatever frustration Mr. Jaworski may have been feeling takes nothing away from his opinion that a reasonable apprehension of bias against the appellant had been raised. Mr. Jaworski did not state that his opinion was based on any frustration he was feeling. On the contrary, the transcript reveals that he arrived at his opinion after "considerable thought" and was particularly concerned about the contact between the Chairperson and Mr. Vigneault. Given Mr. Jaworski's role as opposing counsel and his intimate understanding of the issues involved in the hearing, his concurrence on the issue of reasonably perceived bias should have been accorded some weight. I do not say that in the absence of other evidence, the mere fact that both counsel before a tribunal agree that a reasonable apprehension of bias has been raised is binding or necessarily persuasive. However, when coupled with other objective facts upon which such opinions are based, such as ex parte communications and an uneven approach to the release of hearing tapes, the concurring submissions of counsel on the issue should be addressed and given some weight.
[26] The Trial Judge's willingness to unearth Mr. Jaworski's subjective feelings of frustration is frankly puzzling. So is his focus on the degree of actual prejudice caused to the appellant by the individual events that gave rise to his apprehension of bias. He failed to consider the cumulative impression left by those events. It seems that both the Chairperson and the Trial Judge lost sight of the `reasonable observer' test mandated by the National Energy Board decision. The Trial Judge adopted a particularly narrow approach, finding that each event, by itself, did not cause the appellant any prejudice.
[27] The appellant does not have to prove actual bias, and the Court does not have to seek it out. Rather, he has the burden of satisfying the Court that a reasonable apprehension of bias existed in the circumstances of the case. Having regard to the objective facts and the concurring submissions of counsel that a reasonable apprehension of bias has been raised, he has discharged this burden.
[28] The respondent in this proceeding was the Attorney General of Canada. Initially, the Court was of the impression that counsel for the Attorney General was representing Revenue Canada, the party opposing the appellant before the Appeal Board. Only upon questioning counsel did it become apparent that counsel was representing the Public Service Commission and not Revenue Canada. The fact that Revenue Canada was not separately represented before the Court is of some concern in this case because of the position Revenue Canada took before the Appeal Board conceding a reasonable apprehension of bias.
[29] I am of the view that the Trial Judge erred in not applying the correct test for reasonable apprehension of bias. On a full and fair review of the events that transpired, the appellant's apprehension of bias in the Chairperson is reasonably held.
[30] If a tribunal like the Appeal Board wishes to avoid encumbering its procedure with disqualification proceedings, it would be well advised to revisit its procedure of communicating with the parties on procedural matters. The use of registrars and conference calls for such purposes is strongly recommended. If reasons to support a request for tapes are required, litigants before a tribunal should be asked for their reasons before the request is summarily dismissed.
Disposition
[31] This appeal should be allowed and the matter should be remitted to a different Appeal Board of the Public Service Commission of Canada for redetermination. The appellant will be entitled to costs throughout.
"F.J. McDonald"
J.A.
"I agree
Marshall Rothstein"
"I agree
K. Sharlow"
__________________2 Affidavit of Purundhar Setlur sworn on November 24, 1997, Appeal Book, Vol. 1 at 15.
3 Transcript of Hearing held on September 4, 1997, Vol 3 at 7.
4 Affidavit of Ruth Nickle Fox sworn on February 20, 1998, Compendium at Tab 7, para. 3.
5 Transcript of Hearing held on November 24, 1997 at 17.
7 Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
8 Trial Judge's Reasons for Order dated February 22, 1999 at paragraph 41.