T-764-75
Christopher Bruce Cathcart (Applicant)
v.
The Public Service Commission and Irene Clap-
ham (Respondents)
Trial Division, Smith D.J.—Winnipeg, March 11
and 19, 1975.
Public Service—Extraordinary remedies—Certiorari and
Prohibition—Applicant appealing recommendation of dismis
sal from Public Service—Post Office Department's appeal file
read by Board Chairman in advance of hearing—Whether
existence of bias or reasonable likelihood of bias—Public
Service Employment Act, R.S.C. 1970, c. P-32, s. 31 and
Regulations, s. 45(1)(a).
Applicant, a mail service courier in the Public Service,
appealed a recommendation of dismissal. Before the hearing,
the Post Office Department's appeal file was read by respond
ent, the Chairman and sole member of the Board of Inquiry.
Applicant applied for certiorari requiring the forwarding of all
relevant documents in the appeal to this Court, and for prohibi
tion prohibiting and/or restraining respondent Clapham from
acting as Chairman.
Held, granting the order of prohibition, it is not necessary to
make a decision on the application for certiorari. The funda
mental principle, applicable to courts and quasi-judicial bodies
equally, is that not only must justice be done, it must appear to
be done. If a member of a body engaged in a judicial proceed
ing is subject to a bias, he ought not to participate in the
decision, or even sit on the tribunal. The rule is of general
application to all circumstances in which persons may reason
ably believe that bias exists, or apprehend reasonably that it is
likely to exist. Thus, where a quasi-judicial body has read and
became familiar with one side of an issue upon which it is
required to adjudicate, there is a danger that the Board's ability
to act impartially at the subsequent hearing has been impaired.
Frome United Breweries Co. v. Bath J.J. [1926] A.C. 586;
Nichols v. Graham [1937] 2 W.W.R. 464; Eckersley v.
Mersey Docks and Harbour Board [1894] 2 Q.B. 667;
Rex v. Sussex J.J. ex parte McCarthy [1924] 1 K.B. 256;
Regina v. Steele (1895) 2 C.C.C. 433 and Regina v.
Huggins, ex parte Clancy [1895] 1 Q.B. 563, applied.
APPLICATION.
COUNSEL:
M. Myers, Q. C., for applicant.
D. Rutherford and S. Lyman for respondents.
SOLICITORS:
Pollock, Nurgitz, Skwark, Bromley and
Myers, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application for an order
of certiorari requiring the respondents to forward
to the Registry of this Court in Winnipeg all
things, including all records, transcripts of pro
ceedings, all exhibits, documents and all other
papers and matters touching upon the applicant's
appeal to the respondent The Public Service Com
mission pursuant to the Public Service Employ
ment Act, and
For an order of prohibition to prohibit and/or
restrain the respondent Irene Clapham from acting
as Chairman of the Board of Inquiry established
by the Public Service Commission pursuant to the
said section 31 and the Regulations, to inquire into
an appeal from the applicant against a recommen
dation by Mr. G. Toal that the applicant be
released from his employment as a mail service
courier with the Canada Post Office. The motion
was heard on March 11, 1975.
The applicant has been employed as a mail
service courier under his present appointment since
April 1, 1972. By letter from Mr. G. Toal, Direc
tor, Manitoba District Western Postal Region,
dated January 31, 1975, he was given notice that
Mr. Toal had decided to recommend to the Public
Service Commission that he be released under
section 31 of the Public Service Employment Act
because of incompetence in performing the duties
of his position.
The applicant appealed against Mr. Toal's
recommendation. On March 3, 1975 the matter
came before an Appeal Board established by the
Commission to conduct an inquiry into the appeal.
The Chairman and sole member of the Board was
the respondent Irene Clapham.
At the opening of the hearing before the Appeal
Board it became clear that not only the applicant's
appeal document had been forwarded to Mrs. Clap-
ham, as required by section 45(1)(a) of the
Regulations under the Public Service Employment
Act, but also the Post Office Department's appeal
file. This file was marked as Exhibit D-1 in the
proceedings, but the record is not clear as to
whether it was marked for identification only, as
requested by counsel for the applicant, or as an
accepted exhibit. It had not been identified by
evidence before the Board. I therefore regard it as
merely having been marked for identification. It is
a bulky file, which the Chairman had read, and
which she stated contained 42 exhibits. By the
word "exhibits" I assume she meant "documents",
as no exhibits had then been filed. Further she
could not know how many of these documents
would ultimately become exhibits. Some might be
irrelevant or otherwise inadmissible, or counsel for
the respondent the Public Service Commission
might decide not to make use of them. However,
they had all been read by the Chairman, though
not exhaustively, in advance of the hearing.
The Board hearing was adjourned from March
3 to March 12, 1975, without evidence being
taken. Counsel for the applicant then launched this
motion for certiorari and prohibition. The motion
was heard on March 11, 1975 when the decision
was reserved.
Counsel for the applicant submitted to this
Court that it was improper to put this file, which
as he said contained the whole case of the Post
Office Department, in the hands of the Chairman
of the Board prior to the hearing, and that it was
wrong for the Chairman to read it in advance of
the hearing. Counsel for the respondents argued
that the proceedings before the Board were an
inquiry, not litigation, that there were no formal
pleadings and that supplying the Board with the
Department's file was the only way by which the
Board could be apprised of the issues that would
be brought before it. With this I do not agree. All
that the Board needed was the ground on which
the recommendation for release of the applicant
was based, viz: incompetence, with some indication
of the nature of the alleged incompetence. The rest
would be a matter of evidence, to be adduced in
the normal way.
The fundamental principle of law applicable to
cases of this kind is that justice must not only be
done but must manifestly appear to be done. The
courts have always been astute to enforce observ
ance of this principle, and the principle applies
alike to proceedings in the courts of justice and to
proceedings before other bodies exercising quasi-
judicial functions, as was the situation of the
Board in the present case.
The question of bias, real or likely, on the part
of a person acting in a judicial capacity, has
frequently been the touchstone for decisions giving
effect to the foregoing principle. For example, in
Frome United Breweries Co. v. Bath J.J. [1926]
A.C. 586 the Lord Chancellor, Viscount Cave,
said in the House of Lords, at page 590:
My lords, if there is one principle which forms an integral
part of the English law, it is that every member of a body
engaged in a judicial proceeding must be able to act judicially;
and it has been held over and over again that, if a member of
such a body is subject to a bias (whether financial or other) in
favour of or against either party to the dispute or is in such a
position that a bias must be assumed, he ought not to take part
in the decision or even to sit upon the tribunal. This rule has
been asserted, not only in the case of Courts of justice and
other judicial tribunals, but in the case of authorities which,
though in no sense to be called Courts, have to act as judges of
the rights of others.
A very similar statement is found in the well
known Manitoba case of Nichols v. Graham
[1937] 2 W.W.R. 464, where Dysart J. said at
page 469:
The law is clear that no person shall act as a Judge in any
case in which he is an accuser or prosecutor, or in which he has,
or may reasonably appear to have, any interest or bias in favour
of or against any party thereto. The inhibition goes not only to
the propriety of his so acting, but to his very capacity to act at
all, so that if he does purport to act, his judgment will be set
aside as a nullity. This great principle of our law applies to all
cases without exception in which a person is called upon to act
judicially, and extends to every member of a judicial tribunal,
and to every judicial act. The courses of justice must be pure
and undefiled, and all judicial officers, like Caesar's wife, must
be above suspicion in the exercise of their judicial functions.
In Nichols v. Graham the respondent was Police
Magistrate of Winnipeg. As such he was, by stat
ute, a member of the Board of Police Commission
ers for the city. A decision was made by the Board
to instruct the Chief Constable of the Winnipeg
Police Force to enforce the provisions of the Lord's
Day Act against storekeepers, with certain excep
tions, who were keeping their stores open for busi
ness on Sunday. Magistrate Graham had taken an
active part in the discussions leading to the
Board's decision. A charge was laid against Mr.
Nichols, which charge would normally come
before Magistrate Graham for decision. An
application for an order of prohibition to prohibit
him from hearing the case, was made. The order of
prohibition was granted.
In the course of his judgment Dysart J. referred
to many cases in which strong judicial opinions
had been expressed. Examples are:
Eckersley v. Mersey Docks and Harbour Board
[1894] 2 Q.B. 667, where Lord Esher M.R. sum
marized the Judges' duty by saying at page 671,
that:
... Not only must they be not biassed, but that, even though it
be demonstrated that they would not be biassed, they ought not
to act as judges in a matter where the circumstances are such
that people—not necessarily reasonable people, but many peo-
ple—would suspect them of being biassed.
Rex. v. Sussex J.J., Ex parte McCarthy [1924]
1 K.B. 256, where Lord Hewart C.J. said, at page
259, that the issue turns "not upon what actually
was done, but upon what might appear to be done.
Nothing is to be done which creates even a suspi
cion that there has been an improper interference
with the course of justice."
Regina v. Steele (1895) 2 C.C.C. 433, where
Meredith C.J.C.P. of Ontario, quoted with approv
al at page 438, the language of Wills J. in Regina
v. Huggins, Ex parte Clancy [1895] 1 Q.B. 563, at
page 565, that:
It is far safer to enlarge the area of this class of objections to
the qualification of justices than to restrict it.
At page 473 in his judgment Dysart J. summa
rized the issue before him, as follows:
The main question here, as in all these cases, is whether or
not the facts and circumstances of the case would reasonably
make it appear to the accused persons that there is a likelihood
or danger of bias on the part of the Magistrate, or that his
relationship at the earlier stages of this case, especially that
part leading up to the prosecution was such that he may be
interested in convicting the accused.
His conclusion, as stated at the bottom of the
same page, was:
There is ground, I believe, for Mr. Nichols' fear or apprehen
sion that in the circumstances Mr. Graham is likely to be
biased.
The cases demonstrate that there are many cir
cumstances which may show that actual bias
exists, or alternatively that there are grounds on
which persons may reasonably believe that bias
exists or is to be apprehended. A simple case is
where the person whose duty it is to decide the
issue has a financial, economic or business interest
in the success of one party in the litigation. In such
circumstances it is often said there is a likelihood
that the judicial officer "may make the cause his
own". Another is where there is such a personal
relationship between him and one party however
founded, as to lead other persons to the conclusion
that he is likely to be favourably, or unfavourably
disposed, to that party's cause.
In the present case there is no suggestion that
actual bias exists on the part of Mrs. Clapham. In
fact counsel for the applicant expressly disowned
any such suggestion. Nor is there any suggestion
of any personal relationship between her and the
applicant which could in any way affect her ability
to act judicially in deciding the case. It is quite
likely that she has never met or had anything to do
with the applicant.
The two kinds of cases just mentioned are only
examples. The rule is of general application to all
circumstances in which persons may reasonably
believe that bias exists or apprehend reasonably
that it is likely to exist.
It is clear that the real question for decision is
what conclusion do the circumstances in this case
lead to.
Counsel for the respondents contended that a
decision of a tribunal cannot be set aside on the
ground that it has read or heard some evidence
which it may afterwards hold was inadmissible. I
agree, but that is not the situation here. In this
instance the whole of the respondent's case was
placed in the hands of the Chairman of the Board
in advance of the hearing and read by her. In my
view the situation is somewhat analogous to one in
which a judge has discussed a forthcoming case
with counsel for one party in the absence of coun
sel for the other party. In such a case, if the trial
or any issue in the case is brought before that
judge for adjudication, it is my understanding that
the judge should disqualify himself from hearing
it. The ground for so doing is, of course, the
danger that he may be biassed. Similarly, where a
quasi-judicial Board has read and become familiar
in advance with one side of the issue upon which it
is required to adjudicate, there is, in my view, a
danger that the Board has been so influenced by
what it has read that its ability to act impartially
at the subsequent hearing has been impaired. In
other words, there is a likelihood that it has
become biassed, and it should be disqualified from
hearing the case.
Counsel for the respondents further argued that
as the Public Service Commission is an independ
ent body and particularly since no decision had
been made and no evidence, had even been ten
dered, there could not be bias. He submitted that
as all the material in dispute was contained in one
file which had been marked as Exhibit D-1, at
least for identification, the whole matter could be
cleared up in the course of taking evidence in chief
and on cross-examination, thus overcoming any
possibility of bias.
I do not agree. Where an opinion of a case has
been arrived at, it is difficult to persuade a tri
bunal to alter its conclusion, and where that opin
ion has been reached by reading in advance, infor
mation supplied for one party which, as I see it,
should not then have been available to it, the other
party should not be saddled with the onus of
displacing it.
While the Public Service Commission is
independent of Government, and while its Boards
of Inquiry are engaged in discharging one or more
of its independent duties, nevertheless the Com
mission is in the broad sense an agency of Govern
ment, and a Board of Inquiry is appointed by the
Commission. This being so, the fact that the whole
of the case of the Department concerned, in this
case the Canada Post Office, has been placed in
the hands of and read by the Board, in advance of
the hearing, is likely to enhance the apprehension
of the applicant that the Board may be biassed
against him.
Finally, the fact that in the present case some of
the material contained in Exhibit D-1 may be
inadmissible for one reason or another, or may
simply not be tendered in evidence, but nonetheless
has been read, would limit severely the possibility
of overcoming at the hearing any impression that
may have been garnered from it by advance
reading.
I have found no recorded case that is completely
on all fours with the present one, nor have counsel
for any of the parties cited such a case. In my view
the fundamental principle of law discussed herein
clearly applies. It is not disputed that Mrs. Clap-
ham acted in good faith. Nevertheless, in the
circumstances disclosed I hold that she is disquali
fied from acting as Chairman of the Board of
Inquiry in this case or taking any part in the
decision which may be reached. Accordingly, the
application for an order of prohibition is granted,
with costs.
Counsel for the applicant stated that the only
purpose of the application for an order of certio-
rari was to ensure production of the material that
had been supplied to Mrs. Clapham. As this ma
terial has been produced and marked as Exhibit
D-1, it is not necessary to make a decision on this
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.