FPSLREB Decisions

I. Request for recusal

1 In accordance with paragraph 223(2)(d) of the Public Service Labour Relations Act, I was designated as the adjudicator to hear Marie-Claudy Nelson’s grievance (“the grievor”) against her employer, the Canadian Security Intelligence Service (CSIS); file number 566-20-5245.

2 The hearing will be held from July 2 to 6, 2012.

3 The parties were convened to a pre-hearing conference on May 10, 2012. Although the grievor attended, she was not represented by counsel or in any other way. Karl Chemsi, counsel from the Department of Justice, and a CSIS manager represented the CSIS.

4 During the pre-hearing conference of May 10, 2012, in the interests of transparency, I informed the parties that the Senior General Counsel and Director of the CSIS, to whom Mr. Chemsi reports hierarchically, is a friend of mine and that we worked together for over 20 years. I also indicated that I had reviewed the documents on file at the time of the pre-hearing conference.

5 I indicated to the parties that, despite the friendship, I was convinced that the situation had no bearing on the proceedings and that it in no way affected my ability to decide the grievor’s grievance with complete impartiality and transparency.

6 The grievor said that she was uncomfortable with the information. She also indicated that her objection was not against me personally and asked that another adjudicator be assigned to her file. The employer’s counsel indicated that the grievor’s reason was insufficient and that it was not a justifiable ground to remove me from the case.

7 I indicated to the parties that I would consider the grievor’s objection and that I would return to them with a decision.

II. Reasons

8 After careful consideration, and with due respect to the applicable case law, I decided to treat the grievor’s objection as a formal request for recusal. Finally, I decided to dismiss the request for recusal for the following reasons.

9 The test for determining whether reasonable cause exists for the apprehension of or a reasonable likelihood of bias was developed as follows by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369:

…

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude …”

…

10 In addition, Adams v. British Columbia (Workers’ Compensation Board) (1989), 42 B.C.L.R. (2d) 228 (B.C.C.A.), raised as follows the question of the nature of the evidence required to demonstrate an appearance of bias:

…

… sufficient evidence to demonstrate that, to a reasonable person, there is a sound basis for apprehending that the person against whom it is made will not bring an impartial mind to bear upon the cause … suspicion is not enough…

…

11 Under the circumstances, I believe that the grievor had to demonstrate beyond mere suspicion that a reasonable and well-informed person could believe that, in all likelihood, I would be biased when handling her grievance and that I would not render a fair decision.

12 In Haight-Smith, BCLRB No. B244/1999, the applicant argued that one of the panel members who heard her grievance was biased due to his friendship with counsel for the union. The arbitrator dismissed the applicant’s argument, stating that the mere fact of a panel member being friends with the union’s counsel did not automatically lead to a conclusion of a reasonable apprehension of bias. According to that arbitrator, recusal cannot be granted for the simple reason of a relationship of friendship.

13 In Société des alcools du Québec et Syndicats des employés de magasins et de bureaux de la S.A.Q. 92-1025, Justice Forget stated as follows:

[Translation]

Therefore, one can conclude from those decisions that the request for recusal cannot rest on mere suspicion but must rely on a reasonable apprehension of bias based on sufficiently strong evidence.

14 In this case, no ground was put forward other than the information that I voluntarily shared with the parties about my friendship or working relationship with the Senior General Counsel and Director of the CSIS. Therefore, I can conclude that the grievor’s objection was based on mere suspicion. Moreover, I have no information, on file or otherwise, to indicate that the Senior General Counsel and Director of the CSIS was involved in this matter. However, if that was the case, such information was never disclosed to me. Finally, according to the information obtained during the pre-hearing conference of May 10, 2012, the Director General’s name does not appear on the employer’s list of potential witnesses in this case.

15 For all of the above reasons, I make the following order:

III. Order

16 The request for recusal is denied.

17 The grievor’s hearing shall be held as scheduled by the Public Service Labour Relations Board.

June 1, 2012.

Linda Gobeil,
adjudicator