[2000] 1 F.C. 494
T-2463-97
Air Canada (Applicant)
v.
Arthur E. Lorenz and The Attorney General of Canada (Respondents)
Indexed as: Air Canada v. Lorenz (T.D.)
Trial Division, Evans J.—Toronto, August 26; Ottawa, September 10, 1999.
Administrative law — Judicial review — Lawyer whose practice including labour, employment law, appointed adjudicator of unjust dismissal complaint — After five days of hearing, employer learning adjudicator representing different employee against different employer under analogous provincial legislation — Adjudicator refusing to recuse himself on ground of bias — Hearing stayed two years pending disposition of application — Court should not rule on bias before adjudicator rendering final decision on unjust dismissal complaint — Exercise of Court’s discretion to refuse relief on ground premature requiring weighing competing considerations — Factors considered: hardship to applicant, waste, delay, fragmentation of issues, strength of applicant’s case, statutory context — Substantial delay antithetical to legislative purpose in creating specialized tribunal to adjudicate unjust dismissal claims — Fragmentation of issues in multiple litigation remaining possibility — Waste reduced by fact proceeding well under way, not plain, obvious adjudicator biased — Bias allegation not equated with constitutional challenge to very existence of tribunal.
Labour relations — Judicial review of adjudicator’s refusal to recuse himself on ground of bias — Five days into projected 23-day unjust dismissal hearing, employer learning adjudicator lawyer acting for an employee in unjust dismissal case under provincial legislation — That issue never before litigated some evidence labour lawyers not considering practising labour law inconsistent with serving as adjudicator — Hearing delayed nearly two years pending outcome of this application — Absence of right of appeal, inclusion of strong preclusive provision in Labour Code evidencing legislative intention to minimize judicial oversight of proceedings before adjudicator — Inconsistent with unjust dismissal provisions in Code for Court to exercise discretion in way potentially increasing delay, costs of adjudication — Avoidance of delay, fragmentation of issues carrying considerable weight in context of statutory scheme — Substantial delay herein, real possibility of fragmentation of issues weighed against reduced possibility of waste, strength of allegation.
This was an application for judicial review of an Adjudicator’s refusal to recuse himself. Jacques V. Marchessault, Q.C. was appointed as an adjudicator to hear and determine an unjust dismissal complaint made against Air Canada by Arthur Lorenz. After five days of hearing, Air Canada learned that Mr. Marchessault’s practice included labour and employment law and that he was then representing an employee who was pursuing an unjust dismissal complaint under the analogous Quebec legislation against an employer that was not Air Canada. Mr. Marchessault then refused to provide information about that case or any other unjust dismissal cases that he was handling. Mr. Marchessault denied a motion requesting him to recuse himself on the ground of bias, concluding that his conduct did not give rise to a reasonable apprehension of bias. The hearing of Mr. Lorenz’s complaint has been stayed for nearly two years pending the disposition of this application for judicial review.
The issue was whether the application was premature.
Held, the application should be dismissed.
It would be inappropriate for the Court to make a ruling before the adjudicator has rendered a final decision on the unjust dismissal complaint. If the adjudicator finds in favour of the employee, Air Canada will be able to apply for judicial review on the ground of bias and, at the same time raise any other reviewable error. If the adjudicator dismisses the complaint then the bias issue will be moot.
It was within the Court’s jurisdiction to refuse relief on the ground of prematurity. The exercise of the Court’s discretion here turned on a weighing of competing considerations: the possible hardships caused to Air Canada, and the time and resources that will have been wasted, if the bias question is not determined prior to the completion of the proceeding before the adjudicator versus the adverse consequences of delaying the administrative process and of countenancing a multiplicity of litigation.
The applicant submitted that a party should not be subject to the exercise of legal powers by a tribunal whose very authority to hear the dispute the party has called into question. This factor cannot, however, be determinative because otherwise a reviewing court would always have to decide allegations of bias and to award relief when they are upheld, even though raised before the completion of the administrative process. Thus a court would have no discretion to dismiss an application for judicial review for prematurity when bias is alleged. This is not the law.
The hearing was predicted to last for 23 days. Air Canada submitted that if it were required to postpone its challenge to the proceeding on the ground of the adjudicator’s apprehended bias until the end of that hearing, and its application was then successful, the resources devoted to the last 18 days of the hearing will have been wasted. This concern is relevant only if Air Canada is found to have dismissed Mr. Lorenz unjustly.
The completion of the hearing before the adjudicator has been delayed by this application for judicial review. Delay should be considered as a factor as it may affect not only the parties in this particular case, but also the conduct of other administrative proceedings. If the Court were to decide Air Canada’s allegation of bias prior to the completion of the administrative process, it is likely that participants in other administrative proceedings may resort to judicial review on this ground for the purpose of delaying the proceedings, or forcing the more vulnerable party to surrender or settle.
A determination of Air Canada’s bias allegation at this time may also proliferate litigation. If the allegation were found to be misconceived then, when the ultimate decision is made by another adjudicator, an aggrieved party could make a second application for judicial review on other issues. Fragmentation of the issues raised by an administrative proceeding is wasteful of court resources and unduly burdens the administration of public programs.
That no court has heretofore been called upon to rule on the question raised by Air Canada may be some evidence that labour and employment law practitioners do not regard that combining the duties of an adjudicator and a lawyer practising in the area gives rise to a reasonable apprehension of bias, especially when the adjudicator in his legal practice represents both management and employees. However, there was no evidence about the prevalence of the appointment of adjudicators who actively practise labour and employment law. While Air Canada had not established that this was a clear and obvious case of bias, its concerns could not be characterized as frivolous.
The absence of a right of appeal and the inclusion of a strong preclusive provision in the Code evidence a legislative intention to keep to a minimum judicial oversight of the proceedings before adjudicators. It would seem inconsistent with the unjust dismissal provisions in the Code for the Court to exercise its discretion in a way that potentially increases delays and the costs of adjudication. The avoidance of delay and fragmentation of the issues should be regarded in the context of this statutory scheme as carrying considerable weight.
The factual and legal matrices of each case makes generalization difficult. It has been said that a court should only intervene before the tribunal has rendered its final decision in “exceptional circumstances” on an application for judicial review alleging bias where there is no right of appeal from that tribunal to another administrative body. There was no authority for the proposition that an allegation of bias ipso facto constitutes “exceptional circumstances” justifying judicial review before the tribunal has rendered its final decision. The jurisdictional nature of a ground of review does not in itself deprive a reviewing court of its discretion in the exercise of its supervisory jurisdiction.
Substantial delay is antithetical to the legislative purpose underlying the creation of a specialized tribunal to adjudicate unjust dismissal claims. Fragmentation of the issues in multiple litigation remains a real possibility. The possibility of waste was reduced by the fact that the proceeding before the adjudicator was already well under way, even though the hearing had only gone for about a quarter of its projected length, and by the fact that it was not plain and obvious that the adjudicator was biased. A non-frivolous allegation of bias that falls short of a cast-iron case does not per se constitute “exceptional circumstances” even when the hearing before the tribunal is still some way from completion, and there is no broad right of appeal from the tribunal. Nor is such a bias allegation to be equated with a constitutional attack on the “very existence of a tribunal”.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 242(1), 243.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Con-Way Central Express Inc. v. Armstrong et al. (1997), 153 F.T.R. 161 (F.C.T.D.).
DISTINGUISHED:
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.).
CONSIDERED:
Woloshyn v. Yukon Teachers Assn., [1999] Y.J. No. 69 (S.C.) (QL); Refrigeration Workers Union, Local 516 and Labour Relations Board of British Columbia et al., Re (1986), 27 D.L.R. (4th) 676; [1986] 4 W.W.R. 223; 2 B.C.L.R. (2d) 1; 19 Admin. L.R. 73 (B.C.C.A.); R. v. Lippé, [1991] 2 S.C.R. 114; (1991), 64 C.C.C. (3d) 513; 5 C.R.R. (2d) 31; 5 M.P.L.R. (2d) 113; 128 N.R. 1; 39 Q.A.C. 241; Zündel v. Citron, [1999] 3 F.C. 409 (T.D.); Coopers & Lybrand Ltd. v. Wacyk (1996), 23 C.C.E.L. (2d) 165; 94 O.A.C. 292 (Ont. Div. Ct.).
REFERRED TO:
Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798; 99 D.L.R. (4th) 738; 63 O.A.C. 393 (Div. Ct.); Great Atlantic & Pacific Co. of Canada Ltd. v. Ontario (Minister of Citizenship) et al. (1993), 62 O.A.C. 1 (Ont. Div. Ct.); Cannon v. Canada (Assistant Commissioner, RCMP), [1998] 2 F.C. 104 (T.D.); Bissett v. Canada (Minister of Labour), [1995] 3 F.C. 762 (1995), 102 F.T.R. 172 (T.D.); Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (1996), 42 C.B.R. (3d) 245; 116 F.T.R. 173 (T.D.); University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), 28 O.A.C. 295 (Ont. Div. Ct.).
APPLICATION for judicial review of an Adjudicator’s refusal to recuse himself from hearing an unjust dismissal complaint five days into a projected 23-day hearing on the ground of bias because he was a lawyer whose practice included labour and employment law. Application dismissed as premature.
APPEARANCES:
Richard J. Charney for applicant.
Guy Lemay for respondent A. E. Lorenz.
Joanne Fox and Scott McCrossin for respondent Attorney General of Canada.
SOLICITORS OF RECORD:
Heenan Blaikie, Toronto, for applicant.
Lavery, de Billy, Montréal, for respondent A. E. Lorenz.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
The following are the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
[1] In this application for judicial review Air Canada asks the Court to answer the following question. Is an adjudicator appointed under the Canada Labour Code [R.S.C., 1985, c. L-2] to determine an unjust dismissal complaint disqualified by bias because as a practising lawyer he was at that time representing a client in an unjust dismissal claim under provincial employment standards legislation against another employer?
[2] Counsel submitted that these facts give rise to a reasonable apprehension of bias. An informed observer who had thought the matter through carefully and practically would reasonably think that the adjudicator might fashion an award that would assist him as a precedent in the case where he was acting as counsel. Accordingly, the Court should call an immediate halt to the proceeding before the adjudicator.
[3] Having heard full argument on this interesting question I have nonetheless decided that it would be inappropriate for the Court to make a ruling before the adjudicator has rendered a final decision on the unjust dismissal complaint. Air Canada has put the bias objection on the record and, if the adjudicator finds in favour of the employee, Air Canada will be able to apply for judicial review on the ground of bias and, at the same time, raise any other reviewable error that it believes that the adjudicator’s award contains. Of course, if the adjudicator dismisses the complaint then the bias issue becomes moot.
B. FACTUAL BACKGROUND
[4] In April of 1997 Jacques V. Marchessault, Q.C. was appointed by Human Resources Canada under subsection 242(1) of the Canada Labour Code, R.S.C., 1985, c. L-2 as an adjudicator to hear and determine an unjust dismissal complaint made against Air Canada by Arthur E. Lorenz, who had been a senior counsel in Air Canada’s legal department.
[5] Five days of hearing were held in October 1997 on the preliminary issue of whether Mr. Lorenz was a “manager” and, as such, excluded from the Code’s unjust dismissal provisions. Shortly before the hearing was to resume in early November counsel for Air Canada learned that Mr. Marchessault’s practice included labour and employment law and that he was then representing an employee who was pursuing an unjust dismissal complaint under the analogous Quebec legislation against an employer that was not Air Canada.
[6] Counsel for Air Canada asked Mr. Marchessault for information about the case in which he was acting as counsel and about any other unjust dismissal cases that he was also then handling. Mr. Marchessault refused.
[7] Counsel then made a motion requesting Mr. Marchessault to recuse himself on the ground of bias. In a reasoned decision extending over five and a half single-spaced pages Mr. Marchessault reviewed the case law and concluded that his conduct did not give rise to a reasonable apprehension of bias. He declined to recuse himself.
[8] The hearing of Mr. Lorenz’s complaint was stayed pending the disposition of this application for judicial review. Interlocutory motions were filed and affiants were cross-examined. Nearly two years have elapsed since any progress was made in the hearing of Mr. Lorenz’s complaint. Whether Mr. Marchessault is currently representing a client or clients in unjust dismissal complaints I do not know.
C. ANALYSIS
[9] I invited counsel to make their submissions on whether this application for judicial review should be dismissed for prematurity as part of their argument on the merits, and not as a preliminary objection. Hearing the case in its entirety has provided a valuable context within which to consider the exercise of my discretion over the grant of relief.
[10] However, this does not necessarily mean that the allegation of bias should be decided before the Court considers the exercise of its remedial discretion. As Vertes J. in Woloshyn v. Yukon Teachers Assn., [1999] Y.J. No. 69 (S.C.) (QL) pointed out, it would seem quite inappropriate to compel an applicant to complete an administrative hearing before a tribunal which a reviewing court has found to be disqualified by bias.
[11] But it does not follow, either, that an applicant is entitled to have a bias question determined at any time of its choosing, simply for the asking. The time and resources put into preparing the written submissions and making the oral argument are not necessarily wasted if it is not. Should the matter be brought back to the Court on the issue of bias after the tribunal has rendered its final decision, counsel will already have done most of the necessary work.
[12] It was agreed by counsel that it is within the jurisdiction of the Court on an application for judicial review alleging bias to refuse relief on the ground of prematurity. Counsel for the Attorney General submitted that it was only in the most unusual and exceptional cases that the Court will intervene in an administrative proceeding before the final decision has been rendered. Counsel for Air Canada, on the other hand, maintained that allegations of bias stand apart from most other grounds of review, and that the courts are less reluctant to intervene on this ground than on others before the administrative process is complete.
[13] As a general rule it is much more difficult nowadays for a litigant to persuade a court to intervene before the applicant has exhausted the available administrative remedies than it was when Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756 was decided.
[14] Thus, relief may be refused on the ground that a litigant has not taken advantage of a right of appeal to an administrative tribunal when this is an adequate alternative remedy to an application for judicial review, even when the ground of review is the wrongful denial of a participatory right in breach of the duty of fairness (Harelkin v. University of Regina, [1979] 2 S.C.R. 561), or even a substantive jurisdictional error (Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3).
[15] Courts are similarly reluctant to intervene to review an interim or interlocutory decision prior to the conclusion of the proceeding before the administrative tribunal. There are a number of cases in which relief has been refused when the applicant has challenged the proceeding of a human rights tribunal prior to its rendering a final decision, including some involving allegations of bias: see, for example, Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.).
[16] In other cases, however, the Court has found that an allegation of bias against a tribunal should be determined without requiring the applicant to complete the administrative hearing and await a decision: Great Atlantic& Pacific Co. of Canada Ltd. v. Ontario (Minister of Citizenship) et al. (1993), 62 O.A.C. 1 (Ont. Div. Ct.). More recently, there was found to be a reasonable apprehension of bias with respect to one of the members of a Canadian Human Rights Tribunal. The Tribunal was prohibited from proceeding with the hearing as it was then constituted, even though the hearing had lasted for approximately 40 days and was expected to take more than a few days to complete: Zündel v. Citron, [1999] 3 F.C. 409 (T.D.). However, the question of the prematurity of granting relief seems not to have been addressed by the Court, perhaps because the Court permitted the Tribunal to continue without the disqualified member.
[17] I should make it clear that, unlike the cases cited above (with the exception of Zündel), there is in this case no broad statutory right of appeal from the adjudicator to another administrative tribunal or to this Court. Nor is this a case where non-intervention can be justified by the policy of curial deference to the expertise of administrative tribunals. Despite dicta to the contrary in Refrigeration Workers Union, Local 516 and Labour Relations Board of British Columbia et al., Re (1986), 27 D.L.R. (4th) 676 (B.C.C.A.), at pages 681-682, whether Mr. Marchessault is disqualified for bias must be decided independently by a reviewing court on a standard of correctness. Nor is this a case where a better record will be compiled for the conduct of the judicial review on the ground of bias if it is postponed until after the adjudicator has rendered his final decision.
[18] Rather, the exercise of the Court’s discretion here turns principally on a weighing of two competing considerations. On the one hand are the possible hardships caused to Air Canada, and the time and resources that will have been wasted, if the bias question is not determined prior to the completion of the proceeding before the adjudicator. On the other hand, there are the adverse consequences of delaying the administrative process and of countenancing a multiplicity of litigation.
(i) The factors to be considered
(a) hardship to the applicant
[19] Counsel submitted that an allegation of bias casts a cloud over the legitimacy of the entire proceeding before the adjudicator, and to require Air Canada to push through to the end without having this question resolved would impose serious hardships. A party should not be subject to the exercise of legal powers by a tribunal whose very authority to hear the dispute the party has called into question.
[20] This factor cannot be determinative, however, because otherwise a reviewing court would always have to decide allegations of bias and to award relief when they are upheld, even though raised before the completion of the administrative process. This would mean, in effect, that a court would have no discretion to dismiss an application for judicial review for prematurity when bias is alleged or, putting it another way, an allegation of bias always constitutes “exceptional circumstances” justifying judicial intervention before the administrative process is complete. In my opinion this is not the law.
[21] Further, counsel argued, even if the adjudicator ultimately decides in favour of Air Canada he may make rulings in his reasons that are adverse to it, which it has no means of challenging, whether by an application for judicial review or otherwise. This does not seem to me to be a particularly pressing concern.
(b) waste
[22] Air Canada raised the bias allegation on what would have been the sixth day of a hearing that is predicted to last for a total of 23 days. If Air Canada is required to postpone its challenge to the proceeding on the ground of the adjudicator’s apprehended bias until the end of that hearing, and its application is then successful, the resources devoted to the last 18 days of the hearing will have been wasted.
[23] This concern is only relevant, however, if Air Canada is found to have dismissed Mr. Lorenz unjustly, something that is still in the realm of the unknown.
(c) delay
[24] There is no doubt that the completion of the hearing before the adjudicator has been delayed by Air Canada’s application for judicial review: the last day on which the merits of Mr. Lorenz’s complaint was heard was in October 1997, nearly two years ago. Thus, if Air Canada’s application is unsuccessful on the merits, it will nonetheless have delayed the determination of the substantive issues in Mr. Lorenz’s complaint.
[25] Delay should be considered as a factor as it may affect not only the parties in this particular case, but also the conduct of other administrative proceedings. If the Court were to decide Air Canada’s allegation of bias prior to the completion of the administrative process it is all too likely that participants in other administrative proceedings may resort to judicial review on this ground for the purpose of delaying the proceedings, or forcing the more vulnerable party to surrender or settle.
(d) fragmentation
[26] A determination of Air Canada’s bias allegation at this time may also proliferate litigation. If the allegation were found to be misconceived then, when the ultimate decision is made by another adjudicator, an aggrieved party could make a second application for judicial review on other issues. Fragmentation of the issues raised by an administrative proceeding is wasteful of court resources and unduly burdens the administration of public programs.
(e) strength of the case
[27] The potential harmful consequences of deciding or not deciding the merits of this application for judicial review prior to the determination of the administrative process are largely premised on the eventual success or failure of the allegation of bias. It is therefore appropriate to consider the strength of the case made by the applicant.
[28] Counsel for Air Canada conceded that the question on which he has asked the Court to rule is largely one of first impression. While there is no authority directly on point, he argued that in R. v. Lippé, [1991] 2 S.C.R. 114, the Supreme Court of Canada expressed the view that, in the absence of adequate safeguards, the appointment of part-time judges who continued their legal practice breached the constitutional requirement of institutional impartiality and independence.
[29] It is an open question whether similar concerns are applicable to specialized administrative tribunals. For example, a consequence of a finding that Mr. Marchessault was disqualified by bias from acting as an adjudicator in this case would be that lawyers practising labour and employment law would be generally ineligible for an appointment under section 240 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15] of the Canada Labour Code. This might result in the loss of a valuable source of relevant expertise. However, in the absence of any evidence about the frequency with which adjudicators are appointed from the ranks of practising labour and employment lawyers I can make no finding on this point.
[30] Of course, a claim is not doomed to failure by virtue of its legal novelty or the practical fall out from its success. Nonetheless, the fact is that no court appears to have been called upon before to rule on the question raised by Air Canada in this proceeding. This may be some evidence that at least labour and employment law practitioners do not regard combining the duties of an adjudicator and a lawyer practising in the area as giving rise to a reasonable apprehension of bias, especially when, as here, the adjudicator in his legal practice represents both management and employees.
[31] However, I should state again that there was no evidence before me about the prevalence of the appointment of adjudicators who actively practise labour and employment law. Hence, I do not know how often this occurs. Indeed, the only evidence in the record on the issue is the expression of surprise by a partner in the law firm representing Air Canada in this matter that an adjudicator was also actively practising labour and employment law. This suggests that it may be unusual for adjudicators also to represent clients in this area of the law.
[32] Air Canada did not satisfy me that this is a clear and obvious case of bias. On the other hand, it clearly cannot be characterized as frivolous either. The concerns expressed in Lippé, supra, and, to a lesser extent, codes of ethics from other jurisdictions put into evidence by counsel, suggest that Air Canada’s allegation of bias is by no means fanciful.
(f) statutory context
[33] The factors outlined above must be evaluated, not only on the basis of the facts of the particular case, but also in the context of the statutory scheme from which the application for judicial review arises. Parliament conferred on adjudicators, appointed ad hoc, jurisdiction to determine unjust dismissal complaints in order to minimize the expense and delays that dismissed employees, often still out of work and typically far from being among the highest income earners, could have expected to encounter in the courts. The absence of a right of appeal and the inclusion of a strong preclusive provision in the Code (section 243) evidence a legislative intention to keep to a minimum judicial oversight of the proceedings before adjudicators.
[34] While timing may not have quite the same significance in unjust dismissal cases as it does in industrial disputes and contested union certifications, it would seem quite inconsistent with the unjust dismissal provisions in the Code for the Court to exercise its discretion in a way that potentially increases delays and the costs of adjudication.
[35] Accordingly, in my opinion the avoidance of delay and fragmentation of the issues are factors that should be regarded in the context of this statutory scheme as carrying considerable weight. Thus, even when an adjudicator is impugned for bias, it will be the rare case indeed when the Court should determine the merits of the claim prior to the release of the adjudicator’s ultimate decision, such as when the allegation reveals a very clear case of bias and the issue arises at the outset of a hearing that is scheduled to last for a significant length of time.
(ii) The jurisprudence
[36] Previous jurisprudence involving judicial discretion can provide valuable guidance on the test to be applied and the general approach to be taken to the exercise of that discretion. It can also identify the factors that a judge should take into account when making a decision. However, an examination of the actual disposition of particular cases is apt to yield only limited and indirect assistance on the way in which the discretion ought to be exercised in a given case. The factual and legal matrices of each case makes generalization difficult.
[37] There is judicial authority on the test to be applied on an application for judicial review when the applicant has alleged that an administrative tribunal was biased, and there is no right of appeal from that tribunal to another administrative body. Thus, it has been said that a court should only intervene before the tribunal has rendered its final decision in “exceptional circumstances” (University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), 28 O.A.C. 295 (Ont. Div. Ct.), at page 306), in “exceptional or extraordinary circumstances” (Ontario College of Art v. Ontario (Human Rights Commission) , supra, at page 799), or where the attack is on the “very existence of the tribunal” (Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.), page 596).
[38] In other words, the test applied when other grounds of review are asserted is equally applicable to allegations of bias. However, judicial review for bias does not engage the policy either of curial deference to the expertise of the tribunal, or of postponing review until a complete factual record is compiled. Accordingly, I accept that the burden of demonstrating the existence of “exceptional circumstances” may be somewhat easier to discharge when the impartiality of the tribunal is impeached in judicial review proceedings before the administrative process has run its course than it is when the applicant alleges other reviewable errors.
[39] Nonetheless, I find no authority for the proposition that an allegation of bias ipso facto constitutes “exceptional circumstances” justifying judicial review before the tribunal has rendered its final decision. With respect, I cannot agree with the proposition advanced by my colleague Muldoon J. in Con-Way Central Express Inc. v. Armstrong et al. (1997), 153 F.T.R. 161 (F.C.T.D.), at page 163 that the fact that an application for judicial review raises “a question of jurisdiction” brings it within the “special circumstances” category.
[40] Although a case in which the applicant had a right of appeal to another tribunal, Canadian Pacific, supra, would appear clearly to indicate that the “jurisdictional” nature of a ground of review does not in itself deprive a reviewing court of its discretion in the exercise of its supervisory jurisdiction.
[41] Counsel for Air Canada also relied on the statement by Cory J. in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 645 that when “a reasonable apprehension of bias has been established”, the ensuing decision of the tribunal “cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal”. However, these comments are not relevant to the issue in this case where no finding of bias has been made; they do not speak to the discretion of the Court to dismiss an application for prematurity without determining whether a reasonable apprehension of bias existed.
[42] Counsel for Air Canada sought to distinguish the cases in which the Court had declined to intervene on grounds of prematurity where bias was alleged and where there was no right to an administrative appeal. For example, in the Ontario College of Art case, supra, the bias alleged was that of the officer appointed by the Ontario Human Rights Commission to investigate the complaint, not of the board of inquiry appointed to adjudicate it. The board was presumably capable of taking into account in its determination any possible bias by Commission staff.
[43] In Coopers & Lybrand Ltd. v. Wacyk (1996), 23 C.C.E.L. (2d) 165 (Ont. Div. Ct.), counsel pointed out, the application for judicial review had been filed 13 months after the impugned decision had been made. However, the Court did not mention in its discussion of the prematurity issue the late filing of the application as a reason for refusing relief. Instead, it simply relied on the case law establishing that only in exceptional circumstances will relief be granted before the tribunal has made its final decision. Obviously, the allegation of bias and the absence of any right of appeal from the tribunal were regarded as insufficient in Coopers & Lybrand to constitute “exceptional circumstances”.
[44] A reviewing court may also be more willing to intervene when the applicant alleges that the tribunal’s enabling statute is constitutionally flawed: Pfeiffer v. Canada (Superintendent of Bankruptcy), supra; Cannon v. Canada (Assistant Commissioner, RCMP), [1998] 2 F.C. 104 (T.D.). However, even in these circumstances a challenge may be dismissed for prematurity if more factual material is required in order properly to address the question of the tribunal’s independence: Bissett v. Canada (Minister of Labour), [1995] 3 F.C. 762 (T.D.).
[45] Counsel for Air Canada also relied heavily on the dissenting judgment in Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.), at pages 502-507, where Laskin J.A. held that a failure to disclose the report of an investigation of a complaint to a professional regulatory body constituted a breach of the duty of fairness and that the application for judicial review was not premature. However, in that case it was also said (at page 506) that:
There would be no fragmenting or protracting of the proceedings since the hearing has not started.
[46] This is not, of course, the situation in our case where five days of hearings have already been held. Moreover, to the extent that Laskin J.A.’s judgment rested on an assumption that courts should generally be ready to intervene whenever a jurisdictional error is alleged, including a denial of procedural fairness, it has been weakened by the subsequent decision of the Supreme Court of Canada in the Canadian Pacific case, supra.
D. CONCLUSION
[47] It is not, of course, disputed that Air Canada has a right to a fair hearing before an adjudicator that is free from any reasonable apprehension of bias. The question, here, however, is the point in the administrative process at which the applicant is entitled to a determination of its allegation and the grant of relief if it is upheld.
[48] In my opinion the substantial delay that has arisen from this application for judicial review is a vivid illustration of the dangers of a practice that, in all but truly exceptional circumstances, does not seek firmly to discourage applications for judicial review before an administrative tribunal has rendered its decision. Delay of this kind is antithetical to the legislative purpose underlying the creation of a specialized tribunal to adjudicate the claims of dismissed employees that their dismissal was unjust. Fragmentation of the issues in multiple litigation remains a real possibility.
[49] The fact that the proceeding before the adjudicator was already well under way mitigates the waste factor in the exercise of discretion, even though the hearing had only gone for about a quarter of its projected length. The possibility of waste is also reduced by the fact that it cannot be said that it is plain and obvious in law that the adjudicator’s activities disqualified him on the ground of bias.
[50] A non-frivolous allegation of bias that falls short of a cast-iron case does not per se constitute “exceptional circumstances”, even when the hearing before the tribunal is still some way from completion, and there is no broad right of appeal from the tribunal. Nor is it to be equated with a constitutional attack on the “very existence of a tribunal” considered in Pfeiffer v. Canada (Superintendent of Bankruptcy), supra.
[51] For these reasons the application for judicial review is dismissed.