Québec – Statutory tribunal chair disqualified for bias for comments made in presence of witness during hearing break – #582

In Terrebonne Police Brotherhood Inc. v Truchon, 2022 QCCS 34, Justice Poulin granted, in part, the plaintiff union’s application for judicial review of a decision rendered by a three-person statutory tribunal. The tribunal had dismissed the union’s motion for an order disqualifying the entire tribunal based upon comments made by the chair, which were overheard by a witness and an observer during a break in the hearing. Justice Poulin set aside the tribunal’s ruling and found that those comments demonstrated both a lack of impartiality and a lack of open mind on the part of the chair, which warranted his disqualification. However, the other two members of the panel were not disqualified, even though they contributed to the unanimous decision dismissing the union’s motion. The chair’s comments could not be imputed to them.

The plaintiff, Terrebonne Police Brotherhood Inc., is a union which represents salaried police officers employed by the City of Terrebonne. The defendants were members of a three-person arbitral tribunal (called the “Dispute Resolution Council”, the “CRD”) appointed pursuant to the Québec Act respecting the process of negotiation of collective agreements and settlement of disputes in the municipal sector, CQLR c. R-8.3, whose mandate was to resolve disputes between a municipality and its employees during the period of negotiation before finalization of a collective agreement.

The hearing was for the purpose of addressing the union’s concern that the CRD was made up of members who were not selected and recognized by the parties and who did not have expertise in the police environment. Therefore, the union argued, access to the CRD to resolve disputes was not an adequate substitute for the right to strike. The union had also brought a challenge in the Québec Superior Court to the constitutionality of the legislation and its mechanism for constituting the CRD on the ground that it removed from employees the ability to choose the person who would determine their work conditions, thereby constituting an obstacle to their freedom of association. That decision was on reserve. This background provides context for the comments made by the chair of the CRD tribunal, about which the union complained.

The evidence of the impugned comments – At the beginning of the hearing, the union raised various preliminary objections relating to the constitution of the tribunal, its independence, and a violation of the rules of natural justice. The union called as a witness the president of the Federation of Municipal Police Officers of Québec (FPMP), of which the union was a member. It was during his evidence that the chair made the comments which resulted in the union’s disqualification motion to the tribunal.

The president of the FPMP swore an affidavit in support of the disqualification motion, in which he set out the following events.

During a break in his testimony, the parties and their lawyers absented themselves. He, the members of the tribunal, and the FPMP director of communications remained in the room. The president of the FPMP stayed in the witness chair. He overheard a discussion among the members of the tribunal. Although all evidence had not yet been heard, the tribunal members began to deliberate in his presence. The chair said to the other tribunal members that, “the police lived in a world of unicorns and that, basically, the police questioned the CRD process and that it was up them to show [the police] how things work”.

The FPMP president swore that, “having heard this blatant lack of impartiality and seeing that the other two members did not react to these remarks, I got up from my chair and called out to the [chair] and the two members, saying to them: ‘I cannot don’t (sic) act like I can’t hear you then I’m going to leave the room’. They did not react.”

The affidavit of the FPMP director of communications was almost identical. He too said that he left the hearing room because he was uncomfortable with what he had heard.

The tribunal’s decision – The tribunal dismissed the disqualification motion and stated as follows in its decision:

“4. As mentioned in the motion, [tribunal]l members remained in the hearing room during an adjournment, requested to allow the parties to discuss.

5. The members of the [tribunal] then began a general discussion at random on the subject of the negotiations and conclusions of collective agreements in labor law. Only the members of the [tribunal] were parties to this exchange. The [tribunal] did not deliberate, it discussed various subjects.

6. The exchanges were of a general nature, and did not relate to the evidence already presented in this file.

7. The expression “unicorn world” was used by the [chair], but never to qualify union demands; neither the [chair] nor the members qualified the trade union position in any way.

8. The exchange focused on the world of work in general, on the evolution of the conclusion of collective agreements compared to what was done before. The members philosophized about society in general and about the current world in which we live. It was an informal discussion, to pass the time and discuss labor law.

9. The [chair] also mentioned that the [tribunal] would show the parties and the union how the system worked; this affirmation did not have a directive, authoritarian meaning, but rather an educational one, in the sense of teaching, and that the [tribunal’s] role was to find a solution for the parties.

10. During the adjournment, [the FPMP president] left the room, effectively mentioning that he could not pretend not to hear the conversation in progress between the members of [tribunal]. He said, “I won’t pretend not to hear, I’ll go out.”

11. At no time did [the FPMP president] refer to the comments he allegedly heard. If that had been the case, the [tribunal] would have discussed with [the FPMP president] to clarify the situation, explain the remarks and apologize if necessary, if he had been shocked or hurt by what he had heard.”

The tribunal dismissed the union’s motion to disqualify the tribunal on the basis that the evidence the union relied upon was taken out of context and did not reflect the substance of the discussion. Further, the union relied upon on cases in which the tribunal was disqualified because it demonstrated some animosity towards a party during the hearing, which the union admitted did not occur in this case. Finally, the two witnesses were not members of the union, as a result of which there was no evidence on the record as to the effect that the alleged remarks could have had on the union. For all these reasons, the union had no serious reason to question the impartiality of the tribunal.

The union applied for judicial review of the tribunal’s decision.

The relevant test for disqualification (paras. 30-37) – The applicable test was that the objective reasonable apprehension of bias test pursuant to Commission scolaire francophone du Yukon, school district #23 v Yukon (Attorney General), 2015 SCC 25, paras. 20, 22 to 24, 36 and Droit de la famille -1559, 1993 CanLii 3570 (QC CA) per Justice Delisle. It ensures both the existence and the appearance of fair decision-making. This requires that the decision-maker must be impartial and approach each case with an open mind. The party alleging bias bears the burden of proving it and there is a strong presumption of impartiality which is not easily rebutted.

Decision on the merits – The union argued before Justice Poulin that the use of the words “unicorn world” referred to the chair’s belief that the union’s arguments were “futile, irrational, or far-fetched”, and that when these words were spoken, the evidence and argument were incomplete. It also argued that these words indicated a prejudice with respect to the “police union world” and that the words that it was the chair’s intention to “show the police how things work” were problematic because the tribunal’s role was to apply the law, not educate the parties. Further, the union argued that because the other two members of the tribunal did not disassociate themselves from the chair’s remarks despite the witness’s comments, it could be inferred that they shared the views expressed by the chair. Therefore, the entire tribunal should be disqualified.

Justice Poulin accepted the evidence of the FPMP president and director of communications and found that the facts gave rise to a reasonable apprehension of bias by the tribunal chair and that he must recuse himself. Both sides agreed that the words “unicorn world” had been used, and Justice Poulin found that they could only have a pejorative connotation. The use of the expression indicated, “a lack of openness and a negative perception of the subject addressed, including the evolution of the conclusion of collective agreements, the subject of the CRD’s mandate”, and a well-informed person could reasonably infer that these words expressed the chair’s views of the preliminary objections being raised by the union. This gave rise to reasonable fears of bias. The words that the tribunal would, “show the parties and the union how the system worked” indicated a preconceived view of the union’s arguments which were a challenge to the system, including the constitution of the tribunal, made before the hearing and evidence were complete. Finally, Justice Poulin noted that after the FPMP president announced his departure from the room, nothing was done by the tribunal. Therefore, Justice Poulin found:

“[ 49 ] A well-informed person who would study the question in depth, in a realistic and practical way and informed of the arguments raised by the Brotherhood, could reasonably be concerned about the lack of openness of the president of the CRD in the face of the arguments presented, and this, even after having read the explanations that can be read in the Decision.

50 ] The reasons set out in the Decision do not allow the conclusion that must be set aside in this case, namely that of ordering the recusal of the [chair]. The fact that the comments were made during a break rather than during the hearing does not alter the situation. The fact that the remarks do not denote a real antipathy towards the Brotherhood and that the audience was not imbued with any animosity either. Finally, the applicable criterion relates to the appreciation of the sensible and well-informed person and not to that of the Fraternity. Thus, the absence of evidence of the effect that the president’s remarks could have had on the Brotherhood is not a relevant consideration in deciding the application”.

However, the other two tribunal members were not disqualified. The chair’s words could not be imputed to them. Their assessment of the situation as reflected in the tribunal’s “unanimous and unfounded” decision was not sufficient to rebut the presumption of impartiality or to find a reasonable apprehension of bias.

Editor’s notes:

First, as Justice Poulin recognized (at para. 31), any analysis of whether a decision maker’s conduct amounts to a “reasonable apprehension of bias” is necessarily factual and contextual. In this case, there was no dispute about the facts – the relevant events described in the affidavit of the FPMP president and director of communications were consistent with those set out in the tribunal’s decision on the disqualification motion. Therefore, the only issue was the interpretation to be given to those words. Justice Poulin found that an informed reasonable person would not accept the interpretation given by the tribunal in its decision.

Second, the disqualification of the chair on these facts was not surprising and is consistent with previous case law. However, Justice Poulin’s decision that the other members of the tribunal did not demonstrate a reasonable apprehension of bias is very interesting given her finding that they contributed to a unanimous decision in which they came to what Justice Poulin found was a legally incorrect conclusion – that the chair’s conduct did not demonstrate a reasonable apprehension of bias, distinguishing cases apparently put to it by the union in which a tribunal member showed personal animus to a party, which the union admitted was not an issue here. The union does not appear to have raised as an issue the use to be made of the tribunal’s decision, which contained the tribunal’s version of the facts in response to the affidavits and which Justice Poulin described (at para. 23) as, “explaining the context of the remarks”.