Past Lives and Allegations of Bias

Adjudicators all come from somewhere and sometimes those past lives can intrude on the adjudication process. Parties who raise issues of conflict of interest based on a past role of an adjudicator usually frame that objection as an allegation of an apprehension of bias.

The test for reasonable apprehension of bias is well known. I have written about bias in the context of active adjudication previously. The legal test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly (Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369).

A conflict of interest, real or perceived, can arise when an adjudicator once represented a party that is now appearing before him or her. The rule on actual conflict of interest is generally quite straightforward. If an adjudicator worked directly on the dispute, it is inappropriate for her to adjudicate it.

The rule on perceived conflict of interest is more complicated. This can arise when an adjudicator represented a party prior to appointment although he or she had no direct involvement in the matter to be decided.

In applying the reasonable apprehension of bias test, courts apply a strong presumption of adjudicative impartiality and integrity: Terceira v. Labourers International Union of North America, 2014 ONCA 839 (CanLII). Courts have also recognized that many tribunals draw upon the expertise of former practitioners in the area of the tribunal’s jurisdiction. A presumption of disqualification because of prior professional relationships would defeat this practical reality. And, of course, any inquiry into an allegation of apprehension of bias is highly fact-specific.

The general practice at most tribunals appears to be to impose a “cooling off” period after appointment so that no cases with the former client are assigned to the adjudicator for a period of time. Anecdotally, most cooling off periods are a maximum of twelve months and sometimes shorter.

The issue of a perceived conflict is generally raised at the beginning of a hearing by either the adjudicator or one of the parties. Failure to raise an allegation of bias at the first opportunity will be regarded as a waiver of bias by the party that fails to raise it.

When an allegation of past involvement is raised, either by the adjudicator or a party, the adjudicator will explain his or her role with the party in some detail and will then invite submissions from the parties. The adjudicator will then decide whether or not to remove (recuse) himself from the case. That decision will generally be accompanied by brief oral reasons. If the adjudicator does not recuse herself, the reasons for not doing so will be included in the final decision on the dispute.

Situations can arise when knowledge of a possible conflict arises after a decision is reached. This was the case in a recent Ontario case, PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 (CanLII). In these “post decision” cases the issue is how to get the necessary information before a reviewing court. In PowerServe the party alleging bias issued a summons to the adjudicator to be examined under oath. The Ontario College of Trades challenged the summons. A brief synopsis of the facts is relevant to understand the approach of the Ontario Divisional Court to the challenge.

The College of Trades sets the ratio of electricians to electrician journeypersons for companies in Ontario. The College struck a three-person panel to conduct a ratio review of electrician trades. The College appointed the members of the Review Panel from its roster of adjudicators. The chair of the panel was Bernard Fishbein, the Chair of the Ontario Labour Relations Board (OLRB). Mr. Fishbein was appointed to the OLRB in February, 2011. Prior to his appointment he was a long-time partner with Koskie Minsky, representing unions in labour matters. During his work at Koskie Minsky, Mr. Fishbein had represented one of the participants before the Review Panel, the IBEW Construction Counsel of Ontario (“IBEW”), and one its locals, IBEW, Local 353, in over 60 reported cases before the OLRB.

The Panel had submissions from over 300 parties, including PowerServe, a non-unionized company, and IBEW. In its decision, the Panel’s recommended ratio of electricians to apprentices was very close to the ratio put forward by IBEW. PowerServe filed an application for judicial review relying on a single ground:

The Chairperson of the Review Panel, appointed by the Board of the College, is a former labour lawyer with an extensive professional relationship with the IBEW, spanning over 20 years. He did not, at any time throughout the Electrician Ratio Review, disclose this relationship. In failing to disclose the conflict created by his extensive ties to the IBEW, the Chairperson failed to act impartially and neutrally, as required by the Act and the by-laws of the College. His conduct raises a reasonable apprehension of bias. The decision of the Review Panel in the Electrician Ratio Review should, accordingly, be quashed.

In his affidavit supporting the application for judicial review, Mr. Keith McIntyre, a principal of PowerServe, set out the company’s concerns in more detail:

Had I known of Mr. Fishbein’s relationship with the IBEW, I would have considered the whole process unfair and weighted against non-union parties, and would have complained to the College or directly to the Electrician Review Panel. This is because the IBEW was the most influential union voice in the process, and the drastically different position the IBEW was advocating for when compared to non-union contractors such as PowerServe.

It was only after the Electrician Ratio Decision was released that I, and therefore PowerServe, became aware of the fact that Mr. Fishbein, and his former law firm, were so extensively tied to primary trade union making submissions in the electrician ratio review. I initially discovered this fact in discussions with other OEL members, which caused me to investigate the matter further. I simply do not understand how the College could appoint a long-standing lawyer of the IBEW to a Ratio Review in which the IBEW was the core union participant. Having learned of Mr. Fishbein’s relationship with the IBEW, I have lost confidence in the fairness of the Ratio Review process…

PowerServe sent the College’s counsel a summons to witness under Rule 39.03 of the Rules of Civil Procedure which required Mr. Fishbein to attend for examination as a witness prior to the hearing of judicial review application. In addition to the attendance of Mr. Fishbein, the summons sought “any documents, including correspondence, notes, memoranda, contracts, records and copies of same in your custody, possession or power, in any way relating to the matters which are within the scope of this proceeding or have any reference thereto.” The College sought to quash the summons on the presumption of adjudicator impartiality and on the basis of an insufficient evidentiary basis for the summons.

The motion to quash was dismissed by the motion judge, with the following brief endorsement:

I am not persuaded that the summons to witness is an abuse of process or reflects an effort to obtain evidence that would not be relevant or that, for any other reason, it should be set aside.

However, I order that the summons the limited to permit the examiner to examine only on the subjects set out in paragraph 61 of the PowerServe factum…

The motions judge restricted the examination of Mr. Fishbein to the extent of his relationship with IBEW over the course of his tenure with Koskie Minsky, as well as his relationship with the IBEW from the date he was appointed to the OLRB.

The Divisional Court overturned the summons. It concluded that PowerServe was seeking information about the nature of the advice provided to the IBEW, which would be a breach of solicitor-client privilege.

The court relied on the leading statement about the availability of Rule 39.03 examinations in the context of judicial review applications in the Ontario Court of Appeal’s decision in Payne v. Ontario (Human Rights Commission), 2000 CanLII 5731:

… Where it is proposed to examine a tribunal member or senior tribunal official privy to the decision-making process, the right to conduct the examination must be balanced with the principle of deliberative secrecy. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed.

…

[I]t seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision-maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed.

In that case, the Court of Appeal upheld a summons directed to the Registrar of the Ontario Human Rights Commission which sought disclosure of the facts which were before the Commissioners when they decided not to refer the applicant’s complaint to a board of inquiry.

At the Divisional Court hearing, the counsel for PowerServe set out the three areas of questioning of Mr. Fishbein:

• What involvement, if any, Mr. Fishbein had with the IBEW on the issue of journeymen ratios prior to his appointment to the OLRB, the very issue before the Electrician Review Panel;
• The nature of the relationship between Mr. Fishbein and the IBEW following his appointment to the OLRB; and,
• Whether at the time of the Electrician Review Panel, Mr. Fishbein still had a financial interest in his former firm, Koskie Minsky.

The court noted that none of the proposed areas touched on the decision-making process of the Panel and therefore the issue of deliberative secrecy was not at play.

The court held that to allow PowerServe to examine Mr. Fishbein on the first area of proposed questioning would, inevitably, require him to disclose whether he had given legal advice to a former client on a particular subject-matter. Any such communication would be protected by solicitor-client privilege and the former client had not waived that privilege.

The court regarded the second area of proposed questioning as a fishing expedition. Mr. Fishbein resigned from his firm to assume the duties of full-time Chair of the OLRB. In keeping with the presumption of impartiality, the court found it reasonable to assume that to discharge his duties as the OLRB’s full-time chair, Mr. Fishbein severed his professional relationship with his former clients. PowerServe provided no evidence to suggest that those in the construction industry were aware of any continuing relationship.

The court noted that the third area of proposed questioning was not relevant, since a continuing relationship to the former firm was not part of the allegation of apprehension of bias raised by PowerServe.

The court noted, in passing, that Mr. Fishbein disclosed his past involvement with a union client when he chaired a subsequent Review Panel on another case. In that case, Mr. Fishbein had noted the judicial review filed by PowerServe in the other case and made this observation:

I am not only the Chair of this review panel but also the Chair of the OLRB. Prior to my appointment as the Chair of the OLRB (which commenced on February 28, 2011), I practiced labour law for over 30 years, representing very many trade unions (including many building trades’ construction trade unions). Shortly before the consultation date on November 28, 2013, I was advised that the College had received a letter suggesting that an application for judicial review would be made of a ratio review panel decision that I had chaired (which had issued over 6 months ago), on the basis of “a reasonable apprehension of bias”.

In these circumstances, at the outset of the consultation I considered it appropriate to disclose to all of those participants in attendance that in my legal practice, prior to my appointment as Chair of the OLRB, I had from time to time represented the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 853 (“Local 853”), one of the parties who was participating in the consultation and making submissions in support of the trade being reclassified as a compulsory trade. Although I do not recall when I personally last acted for Local 853 (other than it was long ago), my former law firm continues to do so. As pointed out by Local 853, I would have only represented Local 853 in labour relations matters and not with respect to anything involving trade classification, and certainly not involving the College.

In view of this disclosure, I inquired whether any participant had objection to the review proceeding before this panel, and in particular, with me continuing as Chair.

One party did raise an allegation of reasonable apprehension of bias, and the Panel subsequently dismissed the objection.

Disclosing all previous roles that could raise a hint of an apprehension of bias at the beginning of a hearing would seem to be the most prudent course. The parties then have an opportunity to raise objections and waive any allegation of bias. This practice also significantly reduces the prospect of receiving a summons to provide evidence under oath – an uncomfortable turning of the tables for an adjudicator.