FPSLREB Decisions

I. Request for recusal

1 Under section 44 of the Public Service Labour Relations Act (“the Act”), I was appointed as a panel of the Public Service Labour Relations Board (“the Board”) to hear the complaint in and to decide PSLRB File No. 561-34-542.

2 In this complaint, filed under section 190 of the Act, it is alleged that the Canada Revenue Agency and two of its employees engaged in unfair labour practices, contrary to subparagraph 186(2)(a)(i) of the Act.

3 The hearing for this complaint was scheduled for June 3 to 5, 2013. On May 23, 2013, the complainant requested that I recuse myself from proceeding with his complaint for the reason that the Board’s website indicates that, 10 years before I was appointed to the Board, one of the positions I held was counsel for the Treasury Board and that the business card of the respondents’ representative shows that she currently holds a position of Counsel for the Treasury Board. According to the complainant, a strong appearance of a conflict of interest results from those two facts alone.

4 The complainant submitted no arguments or authority to support his request, aside from his reference to the Code of Conduct and Guidelines for Members of the Public Service Labour Relations Board, which is also posted on the Board’s website.

5 The complainant’s request was brought to my attention by the Board’s acting chairperson. After learning of it, I did not ask the respondents to present their position on the complainant’s request, as I would be able to rule on it based entirely on the file and on the arguments submitted by the complainant.

II. Reasons

6 After carefully reviewing the complainant’s request and the relevant case law in this matter, I decided to dismiss the request for recusal for the reasons set out later in this decision.

7 The test for determining whether there is reasonable cause for the apprehension of bias or reasonable likelihood of bias was established by the Supreme Court of Canada as follows in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at 394, and in R. v. S. (R.D.), [1997] 3 S.C.R. 484:

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…”

8 Additionally, the question of the nature of the evidence required to demonstrate the existence of an apprehension of bias was raised as follows by the British Columbia Court of Appeal in Adams v. British Columbia (Workers’ Compensation Board) (1989), 42 B.C.L.R. (2d) 228:

…

… An accusation of that nature … ought not to be made unless supported by 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…

…

9 The Board also recently adopted that principle in Singaravelu v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 8, at para 27, and in Nelson v. Canadian Security Intelligence Service, 2012 PSLRB 65, at para 10. I share the opinions expressed in both decisions on that point and believe that the complainant had to demonstrate that, beyond mere suspicion, a reasonable, well‑informed person in all likelihood would believe that I would be biased when dealing with his or her complaint and that I would not make a fair decision. My opinion is that that would not happen.

10 The complainant failed to demonstrate any causal link between my previous employment and my alleged bias. The mere fact that I was counsel for the Department of Justice and that, in that capacity, I occasionally provided legal advice to different departments, including the Treasury Board Secretariat, in no way compromises my ability to be entirely impartial and to bring an impartial mind to bear in my ruling on this complaint. For that reason, the complainant’s concerns or suspicions are simply insufficient to demonstrate the existence of any bias on my part.

11 It is common knowledge that other Board members have also worked within the federal public service or for bargaining agents during their careers. The Board often considers expertise acquired via specializing in labour relations in the federal government, with bargaining agents or in the private sector as an asset. That is also why section 19 of the Act provides that the Board must be representative, and that section deals specifically with the impartiality of Board members, no matter the source of the recommendation for their appointment to the Board. Subsection 19(4) of the Act states specifically as follows:

(4)  Despite being recommended by the employer or the bargaining agents, a member does not represent either the employer or the employees and must act impartially in respect of all powers and functions under this Act.

Finally, subsection 18(1) of the Act confirms that holding office with the Department of Justice does not make a person ineligible for a potential appointment to the Board.

12 I am convinced that a reasonable, well-informed person called upon to appraise my involvement in this case would be unable to find any reasonable apprehension of bias simply because I worked for the Department of Justice before being appointed to the Board as a member.

13 At face value, there is simply no link between the complaint with which I am seized and the reasons provided in support of the request for recusal.

14 For all of the above reasons, I find that nothing substantiates the complainant’s request for recusal.

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

III. Order

16 The request for recusal is dismissed.

17 The complaint will be heard on the scheduled dates.

May 27, 2013.

PSLRB Translation

Stephan J. Bertrand,
a panel of the Public Service Labour
Relations Board