CAPE BRETON REGIONAL MUNICIPALITY (BIAS RULING)
L.R.B. NO. 4268
PROVINCE OF NOVA SCOTIA
the Trade Union Act of Nova Scotia, and
a judicial review of LRB No. 4268, Interim Order II, heard before Justice MacAdam, whereby, in a decision, S.H. No. 121864, dated April 9, 1996, quashed Interim Order II, including the part of the Order dealing with "TERM" Employees (aka "post May 5, 1994 employees")
Cape Breton Regional Municipality
77 Kings Road
Sydney, NS B1S 1A2
- and -
Canadian Union of Public Employees
Commerce Tower, #102
15 Dorchester St.
Sydney, NS B1P 5Y9
- and -
Police Association of Nova Scotia
22 - 1000 Windmill Road
Dartmouth, NS B3B 1L7
- and -
International Association of Fire Fighters
P.O. Box 621
Sydney, NS B1P 6H7
- and -
Mark Bettens, Hank Lamond, Wayne Pitcher, Francie Reid, Keith Wilcox, Jody Wrathall
Re: Procedural Ruling on Motion Concerning Allegations of Bias
The Applicant, Cape Breton Regional Municipality, has made a motion that Mr. Greg Blanchard, a member of the Board sitting in this hearing, be replaced on the basis that he has shown himself to be biased in this matter, or in the alternative, that there exists a reasonable apprehension of bias with respect to his impartiality herein. Counsel for the Applicant seeks agreement among the Board and parties, that another member of the Board be substituted for Mr. Blanchard in the middle of the hearing, and that after a suitable period of adjournment (where the substitute member could familiarize him or herself with the exhibits and transcripts) the hearing should continue.
Associate Counsel for the Applicant, Ms. Karen Oldfield, swore an affidavit on Sunday, August 16, 1998, paragraphs 2 and 3 of which read:
"THAT I am co-counsel for CBRM in the within proceeding. I attending the hearing in this matter on Friday, August 13, 1998 at Sydney, Nova Scotia. During a break in the said hearing, I observed Board member Greg Blanchard speaking to Blaise MacDonald, counsel for CUPE and IAFF, near the elevators outside of the hearing room. I heard Mr. Blanchard say to Mr. MacDonald "What do you expect, when they dont have any witnesses to call?"
THAT I am advised by Rhona Green, Director of Human Resources for CBRM, and do verily believe, that because of the said statement by Board Member Blanchard, CBRM believes that it will not receive a fair hearing in this proceeding because there is either actual bias or a reasonable apprehension of bias of Board Member Blanchard."
Evidence was heard as to the nature of the conversation near the elevators outside the hearing room, from Ms. Oldfield, from Mr. Blaise MacDonald, Counsel for the International Association of Fire Fighters and Canadian Union of Public Employees, and from Mr. Dennis MacLeod, present for part of the events. A statement was also made on the record by Mr. Blanchard as to his understanding of the events.
The Board has reviewed the authorities presented by the Applicant in this matter, has considered the facts presented by the witnesses called by the parties and the statement of Mr. Blanchard, and has assessed the arguments made in relation to this matter by Counsel for the Applicant CBRM, Counsel for the Respondent Unions and that of Mr. Jody Wrathall purporting to speak on behalf of a number of the Intervenors to this proceeding.
While the recollections of the various participants in and observers of the alleged events constituting bias vary somewhat, the Board is convinced, well beyond a balance of probabilities, that there emerges a coherent picture of the facts which the Board finds as follows:
The Board therefore finds that while the words were accurately heard by Ms. Oldfield, the real meaning to be attributed to these words could only be garnered from the context of the discussion, which she did not hear. We find that she drew inferences which, though entirely understandable from her perspective and that of her client, were mistaken.
While the Board is fully aware of the numerous authorities presented by the Applicant, the Board is content to rely upon the test for the apprehension of bias adopted by the Ontario Labour Relations Board in Textile Processors, Service Trades, Health Care, Professional and Technical Employees Union, Local 351 (Applicant) v. Careful Hand Laundry and Drycleaners Limited (Respondent) v. Group of Employees (Objectors), OLRB 1187-99-R p. 1207 at para 7: (lines 5 - 11)
"An objective test is necessary to avoid both allegations and determinations which are more reflective of self-interest than actuality. The determination must therefore be based on an assessment of the impugned words, including the context in which they were made and the surrounding statements. The test is whether a person who is informed about the circumstances surrounding the event giving rise to the allegation could have a reasonable apprehension that the adjudicator will not or will not be able to determine the matters in issue in a manner consistent with providing a fair and impartial hearing."
We conclude that the remarks of Mr. Blanchard, as they were unrelated to the events of this hearing, do not constitute any actual bias on his part which could mar his impartiality or his decision-making capacity in this proceeding. More importantly, we find that the statement, when understood in context, does not constitute the basis for a reasonable apprehension of bias. In accordance with the foregoing test, we find that the words heard by Ms. Oldfield, if assessed by a reasonable person with a knowledge of the context of the alleged matters in Ingonish and the discussion between Mr. Blanchard and Mr. MacDonald about possible legal proceedings there, could not give rise to a reasonable apprehension of bias.
A word must be said about the broadly general context of this proceeding in which these unfortunate perceptions and allegations arose. The Board moved these proceedings from Halifax to Sydney because of requests from the Respondents and Intervenors who were concerned that their participation in these proceedings would be inhibited by the costs of travel to and from and accommodation in Halifax. In acceding to these requests the Board was aware that facilities in a hotel conference room are not the same as its permanent facilities in Halifax. Among other things, in Halifax, when the Board retires at breaks it goes to its own break-off room and can minimize awkward contact with the parties. In an impromptu venue like this one in Sydney, there is inevitable pressure to appear friendly and approachable during contact in the halls. There are risks of misperception and misunderstandings in such settings which Board members try to guard against, but which have caused the difficulty here.
The Board regards these events and the arguments yesterday arising from them as regrettably but understandable. The parties are represented by counsel who are vigorously representing their clients interests as they best see fit. While the procedures and arguments which developed yesterday may have been unfamiliar to many of the Intervenors and interested observers then present, they were a rigorous and logical working out of the adversarial process - a process which is not always perfect, but which has generally served our legal system well for some centuries. The allegations were unusual and the arguments sometimes heated. However, the Board is unwilling to find impropriety on the party of anyone involved, and is content with its having demonstrated a misunderstanding of significant magnitude. While it is possible that those involved might have acted differently with the benefit of hindsight and that the matter could have been clarified more quickly and simply, we are confident that all acted in good faith. In particular, we find that Ms. Oldfield was motivated by a genuine concern for her clients interests and the integrity of the adjudicative processes of this Board.
The upshot is that the Board rules that the impugned words of Mr. Blanchard did not constitute actual bias, and give rise to no reasonable apprehension of bias. The Board does not accede to the Applicants motion in this regard, and will now proceed to the completion of argument in relation to the Applicants main motion for a non-suit.
DATED AT SYDNEY, NOVA SCOTIA, this EIGHTEENTH (18th) day of AUGUST, 1998.
Bruce P. Archibald