Digests

Setlur v. Canada (Attorney General)

A-165-99

McDonald J.A.

27/11/00

14 pp.

Reasonable apprehension of bias--Appeal from Trial Division order dismissing application for judicial review of interlocutory decision by Appeal Board Chairperson of Public Service Commission of Canada whereby Chairperson refused to disqualify herself from hearing his appeals brought before Board pursuant to PSEA, s. 21--Appellant argued reasonable apprehension Chairperson biassed--Appellant employed as clerical worker with Revenue Canada for 10 years--In November 1996, applied for two PM-2 positions with Revenue Canada, pursuant to closed competition--Did not make eligibility list for either position--Appealed decisions excluding him from eligibility lists--During appeal, Chairperson denied appellant's request for release of hearing tapes, saying tapes would be available once decision rendered--However, at request of newly appointed counsel for Revenue Canada, Chairperson decided to release hearing tapes to parties and to grant adjournment requested by counsel for Revenue Canada--Appellant opposed requests on basis Chairperson had earlier refused to release hearing tapes when appellant requested them, and on basis Revenue Canada should not be given advantage of adjournment at this late date as had clearly chosen not to obtain legal representation sooner--Furthermore, Chairperson twice communicated ex parte with Revenue Canada human resources advisors about procedural matters--Counsel for appellant thereupon submitted Chairperson ought to recuse herself--Counsel for Revenue Canada agreed that perception of bias did arise from Chairperson's ex parte contacts with two human resources advisors at Revenue Canada--Chairperson refused to recuse herself, saying release of tape recordings not usually granted unless reasonable reasons to do so, such as change of counsel; that contacts with human resources advisors only in respect of administrative issues and did not include any discussions of merits of case, and that appellant informed of communications at early opportunity--Trial Division dismissed application to quash on basis no prejudice arose from adjournment, and that no reasonable apprehension of bias on part of Chairperson, in view of explanations provided--Gave no weight to Revenue Canada counsel's opinion as to disqualification of Chairperson--Appeal allowed--Application of reasonable apprehension of bias test in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369: if informed member of community, viewing matter realistically and practically, were to apprehend bias in conduct of Board Chairperson herein, she should be disqualified--As to ex parte communications, registrar had been assigned to matter, and unexplained why Chairperson chose to contact parties about procedural matters rather than registrar or why she would initiate separate calls rather than conference call with both sides at same time--As to release of tapes, given that Chairperson did not ask appellant why he wanted tapes, that his lawyer not present due to illness, and that she summarily dismissed request, Chairperson's explanation that appellant, contrary to respondent's counsel, provided no reasons for request for tapes, not acceptable--As to opposing counsel's concurrence on apprehension of bias, when coupled with other objective facts, such as ex parte communications and uneven approach to release of hearing tapes, concurring submissions of counsel on issue should be addressed and given some weight--Chairperson and Trial Judge both lost sight of reasonable observer test mandated by National Energy Board decision, failing to consider cumulative impression left by those events--Trial Judge adopted particularly narrow approach, finding that each event, by itself, did not cause appellant any prejudice--Having regard to objective facts and concurring submissions of counsel reasonable apprehension of bias raised, appellant has discharged burden--Trial Judge erred in not applying correct test for reasonable apprehension of bias.