FPSLREB Decisions

I. Complaint before the Board

1 Sameh Boshra (“the complainant”) made a complaint under section 190 of the Public Service Labour Relations Act, alleging that his bargaining agent, the Canadian Association of Professional Employees (CAPE), did not comply with its duty of fair representation. Before the hearing, scheduled to begin on March 19, 2012, the complainant contacted the Public Service Labour Relations Board (“the Board”) and requested that the hearing be recorded. He was advised that it is not the Board’s normal practice to record hearings. He indicated to the Board that he intended to record the hearing. At the outset of the hearing, he acknowledged that he had a recording device with him, which was turned on. I asked him to turn off this recording device. He refused.

2 I indicated that I would permit the complainant to make submissions about his request to record the hearing and that I would provide a written ruling on that issue. I excused the respondent from making any oral submissions in light of the fact that the complainant was recording the proceeding but invited it to make written representations if it wished. I then adjourned the hearing.

II. Preliminary issues

3 This decision deals with two preliminary issues. One is the complainant’s request to record the hearing. The other is his request for further disclosure from the respondent.

A. Request to record the hearing

4 The complainant made oral submissions at the hearing on March 19, 2012. Much of his presentation consisted of an effort to show that he had been prejudiced by the absence of a recording of an earlier hearing about the termination of his employment (Boshra v. Deputy Head (Statistics Canada), 2011 PSLRB 97). He alleged that the decision issued by the adjudicator in that proceeding omitted or misrepresented important evidence. It is impossible for me to form any reliable views about the strengths or weaknesses of the previous proceeding or the resulting decision on the basis of a selective summary of the evidence and the issues given by the complainant. I understand that he has availed himself of the recourse of judicial review for that decision, which is the appropriate mechanism for raising issues with respect to its soundness.

5 The respondent provided written submissions on the recording issue in a letter dated April 3, 2012. The deadline for a written response from the complainant was originally April 10, 2012. At his request, he was given an extension of time and access to several Board files. The ultimate deadline for his response was May 14, 2012. A written response was received in accordance with that deadline. In addition, he communicated with the Board on March 7, 14 and 16, 2012 (before the hearing), outlining his reasons for asking that the hearing be recorded.

1. Reasons

6 As an adjudicator making decisions within the framework of a statutory process, I acknowledge that I have a responsibility to conduct proceedings in accordance with the duty of fairness that has been articulated by the courts since Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311. The basic tenets of the duty of fairness, like the principles of natural justice that were in place before Nicholson, are that participants are entitled to a fair hearing (which may or may not be an oral hearing) and that the decision should be made by an unbiased decision maker.

7 It should be noted that the complainant submitted a “Notice of Constitutional Question” in support of his request that the proceeding be recorded, based on the premise that failing to record it would violate his rights under section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”), which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8 The complainant seemed to feel somewhat lukewarm about an administrative decision maker’s ability to consider and apply the Charter, citing the reservations expressed by the Supreme Court in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854. However, he acknowledged that more recent decisions, such as Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Worker’s Compensation Board) v. Laseur, 2003 SCC 54, clearly detail that administrative tribunals will interpret and apply the Charter when it is relevant to issues before them.

9 In this case, the complainant did not advance any argument to demonstrate how an interest under section 7 of the Charter in the “life, liberty and security of the person” is engaged by the question of recording an administrative proceeding. Rather, his focus was on the second part of section 7, which alludes to the principles of fundamental justice. Although the courts have carefully refrained from finding that the duty of fairness and the principles of fundamental justice are identical concepts, they have held that the underlying principles are similar. For example, the Supreme Court made that observation in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 113. In this case, since the complainant did not attempt to demonstrate that a section 7 interest was engaged, I do not find that the allusion to section 7 adds anything to his arguments. Therefore, I will consider his arguments in relation to the concept of fairness, although, as I have indicated, this is generally congruent with the idea of fundamental justice.

10 Nothing in the legislation that gives the Board its mandate requires the Board to record or make transcripts of its hearings. In fact, the Board’s long-standing practice is not to record its proceedings. The rationale for that practice was suggested as follows in Singaravelu v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 8, at para 29:

[29] … It has been the Board’s practice not to tape or otherwise record its proceedings nor to allow the recording of proceedings at the request of a party. The policy foundation of such a practice is the desire to not overly judiciarize the Board’s processes and hearings and, as much as possible, to maintain the informality that has characterized the operation of labour tribunals in general…

11 That statement represents a recent reaffirmation of the important principle of administrative decision making that the process should remain as nimble and accessible as possible and, at the same time, take into account the importance of the issues brought forward by the participants in the resolution process.

12 It should also be noted that it is important that the Board maintain control over its own process. Although there have been cases in which tribunals have permitted one party or both to make recordings of the proceedings, making such recordings, and the determination of their status remain under the firm control of the decision‑making body.

13 As the adjudicator pointed out in Singaravelu, the Board has made the occasional exception to this practice for cases in which the issues were particularly complex or in which the hearing was likely to be extremely protracted. An example is Chopra et al. v. Treasury Board (Department of Health), 2011 PSLRB 99, in which the hearing, resulting in a very lengthy decision, took place over a 4-year period.

14 In Ayangma v. Treasury Board (Department of Health), 2006 PSLRB 64, the grievor requested to record the second phase of a hearing that had already begun. Noting that the respondent employer did not object, the adjudicator set out conditions under which a recording could be made, which, like in Chopra, included the condition that the cost of recording and any transcription should be borne by the parties. In the end, the hearing was not recorded.

15 The complainant noted in his submissions that no reference was made to the criterion of complexity or hearing length in Ayangma. However, it must be noted that, in the Board’s letter, in which it ruled on the request to record the proceedings, reference is made to the criteria of complexity and the length of the proceedings as a basis for another ruling on the issue.

16 In 2009, the Board gave notice that it was undertaking a pilot project in which selected Board members would mechanically record hearings over which they presided. The notice made it clear that the project’s purpose was to ascertain whether recordings might be a useful tool “… to support the notes that Board members take during hearings.” Although the primary focus was on the utility of recordings as work tools for Board members, the notice indicated that the recordings would be available to the parties after the Board members issued their decisions. Although the notice indicated that the intention was to run the project for 12 months, it was suspended before then. I should note that I was not one of the Board members participating in the project.

17 In Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388, the Federal Court of Appeal found that the lack of a transcript of a refugee hearing constituted a denial of natural justice. However, that decision was overturned by that Court in Kandiah v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 232, in which the Court observed the following:

…

… The question whether or not a verbatim record of the proceedings before the Refugee Division was made or kept is not relevant to the quality of the hearing before that tribunal or of the decision it rendered. An otherwise fair hearing does not become unfair because it is not recorded; in other words, a verbatim record of the proceedings is not a condition precedent to a good trial and a good judgment.

…

I am ready to assume, for sake of discussion, that the principles of fundamental justice require that the decisions of the Refugee Division be subject to judicial review. However, a meaningful right of review may exist without a transcript or a recording of the proceedings. In the absence of a transcript, the appellant may establish by other means what transpired at the hearing…

…

18 In Rhéaume v. Canada, [1992] F.C.J. No. 1131 (QL) (C.A.), the Federal Court of Appeal spoke specifically to the Board’s practice in this regard, as follows:

…

… The result is that in the absence of any statutory provision, a tribunal, whether it be a court of record or not, but which has been given control of its process, has complete discretion as to any mechanical or other recording of its proceedings, which means that the fact that it has adopted a general policy of refusing to permit such recording, provided that no discrimination is allowed to enter into the application of the policy, is legally unassailable…

…

19 The Supreme Court considered that line of cases in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 and at para 80 found that Kandiah provided “an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal hearing.” The Supreme Court concluded that the absence of a recording or a transcript does not in itself constitute a compromise of the principles of natural justice or fairness, stating as follows at paragraph 83: “… in the absence of a statutory right to a recorded hearing, a party’s rights to natural justice will only be infringed where the court has an inadequate record upon which to base its decision.”

20 The Supreme Court also distinguished a series of cases from the Labour Court in Quebec on the ground that the statutory regime in place in those instances contemplated appeal on the merits rather than judicial review. In the case of judicial review, the focus of the court is on whether an adequate record is available from which to assess the decision of the administrative decision maker. The Supreme Court, in Canadian Union of Public Employees, Local 301, concluded that, as long as the record contains sufficient material to allow the judicial review of the decision, a recording or transcript is not required.

21 The Board’s overall policy can be described as not recording proceedings held before it, while providing Board members with the latitude to make rare exceptions. The policy has withstood specific legal challenges. My view is that the caveat suggested by the Supreme Court in Canadian Union of Public Employees, Local 301 that, in the absence of a recording of the proceedings, the record must otherwise be sufficient to form a basis for judicial review, can be met by the record commonly provided by the Board in the numerous judicial review applications made about its decisions. Board members normally provide full reasons for their decisions, including summaries of evidence and arguments, which is certainly a practice that I myself have followed.

22 In his submissions, the complainant referred to the policy of not recording proceedings as “arbitrary” and “unwritten.” Leaving aside the question of whether it is necessary to enshrine as a “policy” a practice of not doing something there is no requirement to do, the policy appears in written form in the document “Complaints Under Section 190 of the Public Service Labour Relations Act: A guide for parties representing themselves, March 21, 2006.” The file related to this complaint indicates that a copy of that document, along with other materials, was sent to the complainant on February 17, 2009, along with a letter acknowledging the receipt of an earlier complaint against the respondent (Board File No. 561-02-383).

23  With respect to the arbitrariness of the policy, as I indicated, the Board has within the last couple of years re-examined that policy by undertaking a pilot project to determine whether it should be changed. The Board concluded that the policy should remain in place. The policy provides Board members with the flexibility to grant exceptions in unusual cases. The criteria advanced in Chopra of complexity and the hearing length seem the primary grounds for granting exceptions to this point. Ayangma does not provide any insight into the possible grounds that were the basis for granting an exception. It is important to note the caution of the Federal Court of Appeal in Rhéaume thatsuch a policy should not be applied in a discriminatory manner. I understand that to mean that, when exceptions are granted, some clear rationale is required; otherwise, it is possible that the policy will be applied inconsistently, without thought as to the rationale for its existence.

24 I do not see this case as one in which persuasive grounds exist for diverging from the usual policy. This case involves the relatively straightforward issue of whether the CAPE failed to carry out its obligations to the complainant by declining to refer his grievance to adjudication. It cannot be anticipated that the hearing will be unusually protracted or that my notes and the evidence and submissions that the parties would put before me would not form an adequate basis for making a decision.

25 In both his oral and written submissions, the complainant raised the issue of bias on the part of the Board. In his written submission dated May 14, 2012, he suggested that the Board tried to rig the outcome of the proceeding by assigning the case in succession to two decision makers who had previously made decisions not in his favour. I think it is reasonable to question whether the fact that a decision maker previously dismissed an application or grievance would in itself be enough to establish a reasonable apprehension of bias, as it is not unusual for them to encounter the same party more than once. In any case, in this instance, both of them asked to be relieved since others were available and since, in the case of one of them, the complainant had commenced a judicial review application of their decision. I have been assigned the case, and I have had nothing to do with the complainant’s previous applications. It is hard to see what could now be the basis for an allegation of bias.

26 The complainant’s representations on bias are not clearly tied to the recording issue, other than through the previous adjudicator’s ruling that recording would not be allowed. I have considered that as well as the complainant’s other arguments and have given my reasons for believing that a departure from the Board’s usual practice is unwarranted in this case. The fact that I am making a ruling similar to that made by an adjudicator in a different case does not seem to me to demonstrate bias.

B. Disclosure request

27 The second issue covered in this decision concerns the complainant’s request for the disclosure of documents. He first requested disclosure from the respondent in a letter dated November 20, 2009. Following the filing of this complaint in January 2012, the complainant sought the assistance of the Board in securing disclosure, referring to the November 20, 2009 letter. A series of exchanges ensued between the parties and the Board on that issue, including a fairly lengthy letter from the respondent dated April 12, 2010 that raised a number of concerns about the scope and content of the request. A Board member was asked to review the parties’ positions and to provide further direction. On April 26, 2010, the Board member indicated that the complainant should be directed to provide to the respondent a revised list of documents that:

1. were relevant to the CAPE’s representation for his termination grievance;
2. were from the period of his first contact with the CAPE about his termination until the date on which the complaint was filed;
3. were not already in his possession;
4. were not subject to solicitor-client privilege; and
5. identified the specific document requested.

28 The list was to be provided within two weeks of the date of the letter.

29 The letter was sent to the complainant on April 29, 2010.

30 Despite a number of reminders, the complainant did not provide the respondent with a revised list. Indeed, in a communication to the Board shortly before the hearing, reminding him of the April 2010 direction, the complainant indicated that he thought that his request was adequately captured in his original November 2009 letter.

1. Reasons

31 My view is that it is not open to the complainant to simply express a preference to return to a request of the scope and kind he submitted in November 2009.

32 The parties made a series of representations on this issue. A Board member considered it and issued a direction, which seems to me to have dealt adequately with the issue. I reiterate it as the appropriate basis for a request for disclosure from the complainant. Had the hearing continued on March 19, 2012, I would have summarized this history, as I have in this decision, and would have made the same ruling.

33 For all of the above reasons, the Board makes the following order:

III. Order

34 The Board will not record the hearing of the complaint, and the parties will not be permitted to make their own recordings.

35 The complainant is directed to provide to the respondent, no later than two weeks from the date of this decision, a revised list of requested documents that:

• are relevant to the CAPE’s representation for the complainant’s termination grievance;
• are from the period of his first contact with the CAPE about his termination grievance until the date on which the complaint was filed;
• are not already in his possession;
• are not subject to solicitor-client privilege; and
• are specifically identified.

No further hearing will be scheduled until the complainant has complied with this direction.

August 1, 2012.

Beth Bilson,
a panel of the Public Service
Labour Relations Board