Date: 19980727
Docket: T-950-98
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Applicant
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.:
Nature of the Proceeding
[1] This application is brought by the Canadian Union of Postal Workers (the Union) to remove the Honourable Mr. Justice Guy A. Richard of the Court of Queen"s Bench of New Brunswick as mediator and arbitrator with respect to a labour dispute between the Union and the respondent, Canada Post Corporation (Canada Post). Mr. Justice Guy Richard (the Mediator-Arbitrator) was appointed on January 13, 1998, by the Minister of Labour pursuant to the provisions of the Postal Services Continuation Act , 1997, S.C. c. 34 (the Act).
Background
[2] The Act was passed and came into force on December 4, 1997, in order to bring to an end a strike by the employees of Canada Post by requiring them immediately to return to work and to resume the duties of their employment.
[3] In accordance with the provisions of the Act, the Minister of Labour referred to the Mediator-Arbitrator all matters that, at the time of appointment, remained in dispute between the Union and Canada Post with respect to the conclusion of a new collective agreement between them. Among other things, the Act required the Mediator-Arbitrator, within 90 days of his appointment,
| (a) to mediate all matters and bring about an agreement between the parties; |
| (b) failing such agreement, to hear the parties, arbitrate the matter and render a decision; and |
| (c) to report to the Minister of Labour on the resolution of all matters. |
[4] Immediately following his appointment on January 13, 1998, the Mediator-Arbitrator commenced mediation with the Union and Canada Post and many outstanding issues were resolved during the course of the next several weeks. Arbitration of the remaining unresolved issues began on March 3, 1998, pursuant to a procedure established by the Mediator-Arbitrator which contemplated that evidence would be called and argument made by the parties on each issue, followed by final submissions.
[5] By April 1998, it became apparent that, although the parties had been engaged in the mediation-arbitration for nearly three months, further time was required. By letter dated April 13, 1998, and following submissions by the parties as to the additional time each thought was required to complete the mediation-arbitration, the Minister of Labour extended the appointment of the Mediator-Arbitrator to July 31, 1998.
[6] On April 3, 1998, the Mediator-Arbitrator was flying from Ottawa to Toronto. Joe L"Espérance (L"Espérance), a member of the Union and a technical advisor to the negotiating team, was seated on an aircraft in the same row as the Mediator-Arbitrator and overheard a conversation between the Mediator-Arbitrator and another individual (the overheard conversation) who was later identified as Mr. John Marshall (Marshall).
[7] Marshall has worked for the human resource consulting firm of William M. Mercer Limited (Mercer) for approximately 25 years and for the past twenty years he has been a principal of the firm. Marshall specializes in providing advice to organizations on how to structure health care and group benefits.
[8] On April 14, 1998, counsel for the Union contacted counsel for Canada Post and advised him of the overheard conversation. On the same day, counsel for the Union contacted the Mediator-Arbitrator and asked for a hearing with Canada Post and the Mediator-Arbitrator to discuss the procedure to be followed to deal with the issue. The Mediator-Arbitrator asked for and was sent a copy of a draft application for disqualification.
[9] On April 15, 1998, the Union filed with the Mediator-Arbitrator an application to disqualify the Mediator-Arbitrator, alleging that the Union had a reasonable apprehension that the Mediator-Arbitrator was biased against it, based on comments alleged to have been made by the Mediator-Arbitrator during the course of the overheard conversation with Marshall on the Air Canada flight from Ottawa to Toronto on April 3, 1998.
[10] The parties met with the Mediator-Arbitrator on April 15, 1998, to discuss the procedure to be followed to deal with the Union"s application for disqualification of the Mediator-Arbitrator. The Mediator-Arbitrator asked the Union to prepare and submit its supporting affidavits and scheduled a date for the hearing of the Union"s application.
[11] During the course of the proceedings of April 15, 1998, which, like all such proceedings, were recorded so that a transcript could be maintained, the Mediator-Arbitrator summarized his version of the overheard conversation. Among other comments, the Mediator-Arbitrator advised the parties that he had said nothing to Marshall that was not said at the hearings. The Mediator-Arbitrator also stated that he had made no reference to any decision or opinion of his regarding the questions in issue before him.
[12] The proceedings on April 15, 1998, before the Mediator-Arbitrator were adjourned in order to permit the Union to file affidavit material in support of its application for disqualification. On April 20, 1998, after receiving, on April 17, 1998, the affidavit of L"Espérance, the Mediator-Arbitrator issued an order adjourning the mediation-arbitration to permit the Union an opportunity to apply to this Court for a stay of proceedings. As a result of this and subsequent orders, no further evidence has been adduced or argument made and accordingly, the mediation-arbitration has yet to be completed.
[13] The Order dated April 20, 1998, which is the subject matter of this application for judicial review, reads as follows:
CANADIAN UNION OF POSTAL WORKERS
("CUPW" )
- and -
CANADA POST CORPORATION
("CPC")
ORDER
On April 14, 1998, I received an unsigned motion from CUPW, presented without affidavits, to recuse myself as arbitrator named pursuant to the Postal Services Continuation Act, 1997 (the "Act"). The motion concerns a conversation I had with a Mr. Marshall during an Air Canada flight from Ottawa to Toronto on April 3, 1998.
At the hearing on April 15, 1998, I provided the parties with an account of my conversation with Mr. Marshall and indicated that I was prepared to continue with the hearing.
CUPW then filed a signed motion. The parties made submissions when CUPW should file its supporting affidavits. CPC submitted that the affidavits should be submitted within 24 hours; CUPW submitted that the affidavits should be produced within one week. I asked CUPW to submit its affidavits no later than April 20, 1998 at 10:00 am. The supporting affidavits were received by me on April 19, 1998.
The determination of whether this arbitration can proceed is clearly urgent. The parties have been in mediation and/or arbitration before me since mid-January 1998. Pursuant to the Act, many of the terms and conditions of work of some 45,000 CUPW members are in issue, together with many of the rights and obligations of CPC as a major Crown Corporation.
The urgency is underlined by the fact that the Act contemplates a mandate of only three months, which could be extended on consent of the parties or by Order of the Minister of Labour. The Minister has now ordered an extension of the mandate until July 31, 1998.
Even if I have the jurisdiction to rule on the motion, I have decided that it would be inappropriate for me to do so. In addition, counsel for CUPW advised at the hearing that his client had decided to proceed to the Federal Court of Canada on this matter and would also seek a stay of proceedings.
In light of the above, I adjourn the scheduled proceedings until May 5, 1998 at 10:00 am to enable CUPW to bring a motion in the Federal Court of Canada seeking a stay of the arbitration proceedings.
20/04/98
Date Guy A. Richard
[14] The notice of application by the Union for an order, pursuant to section 18.1 of the Federal Court Act, to remove the Mediator-Arbitrator, was filed in this Court on May 5, 1998.
[15] On May 13, 1998, at the request of the parties, I made an order that the proceeding be managed as a specially managed proceeding, pursuant to Rule 384 of the Federal Court Rules, 1998. A Case Management Judge was designated on May 22, 1998. By order dated June 25, 1998, an expedited hearing was set for July 13, 1998.
Legislation
[16] The relevant sections of the Act read as follows:
| MEDIATOR-ARBITRATOR 8.(1) The Minister shall, after the coming into force of this Act, appoint a mediator-arbitrator and refer to the mediator-arbitrator all matters that, at the time of the appointment, remain in dispute between the parties in relation to the conclusion of a new collective agreement. |
MÉDIATEUR-ARBITRE 8.(1) Après l"entrée en vigueur de la présente loi, le ministre est tenu de nommer un médiateur-arbitre et de lui soumettre toutes les questions qui, au moment de sa nomination, font toujours l"objet d"un différend entre les parties en ce qui concerne la conclusion d"une nouvelle convention collective. |
| (2) The mediator-arbitrator shall, within ninety days after being appointed, (a) endeavour to mediate all the matters referred to in subsection (1) and to bring about an agreement between the parties on those matters; (b) if the mediator-arbitrator is unable to do so, hear the parties on the matter, arbitrate the matter and render a decision; (c) ensure that any agreement or decision referred to in paragraph (a) or (b) is in appropriate contractual language so as to allow its incorporation into the collective agreement; and |
| (2) Dans les quatre-vingt-dix jours suivant sa nomination, le médiateur-arbitre est tenu : a) de s"efforcer d"intervenir sur les questions visées au paragraphe (1) et d"amener les parties à se mettre d"accord; b) s"il ne peut y arriver, d"entendre les parties et de rendre une décision arbitrale; c) de veiller à ce que les accords ou les décisions visés aux alinéas a) ou b) soient libellés de façon à pouvoir être incorporés dans la convention collective; |
| (d) report to the Minister on the resolution of all such matters. |
d) de faire rapport au ministre lorsque toutes ces questions sont réglées. |
| (3) The mediator-arbitrator has, with any modifications that the circumstances require, |
(3) Le médiateur-arbitre a, compte tenu des adaptations nécessaires : |
| (a) for the purposes of the mediation referred to in paragraph (2)(a), all the powers of a conciliation commissioner under section 84 of the Canada Labour Code; and |
a) dans le cadre de la médiation visée à l"alinéa (2)a ), les pouvoirs d"un commissaire-conciliateur prévus à l"article 84 du Code canadien du travail ; |
| (b) for the purposes of the arbitration referred to in paragraph (2)(b), all the powers and duties of an arbitrator under sections 60 and 61 of that Act. |
b) dans le cadre de l"arbitrage visé à l"alinéa (2)b ), les pouvoirs d"un arbitre prévus aux articles 60 et 61 de cette loi. |
| (4) The mediator-arbitrator may, with the approval of the Minister, engage the services of any technical advisers or other experts or assistants that the mediator-arbitrator considers necessary. |
(4) Le médiateur-arbitre peut, avec l"approbation du ministre, retenir les services des conseillers techniques et autres experts ou des collaborateurs qu"il estime nécessaires. |
| (5) The time during which the mediator-arbitrator may perform the duties and exercise the powers under this section may be extended by the Minister or by mutual consent of the employer and the union. |
(5) Le délai accordé au médiateur-arbitre pour s"acquitter des obligations prévues par le présent article peut être prorogé par le ministre ou d"un commun accord par l"employeur et le syndicat. |
| 9. The mediator-arbitrator shall be guided by the need for terms and conditions of employment that are consistent with the Canada Post Corporation Act and the viability and financial stability of Canada Post, taking into account |
9. Le médiateur-arbitre doit s"inspirer de la nécessité d"avoir des conditions de travail compatibles avec la Loi sur la Société canadienne des postes et la viabilité et la stabilité financière de la Société canadienne des postes, compte tenu de : |
| (a) that the Canada Post Corporation must, without recourse to undue increases in postal rates, |
a) la nécessité pour celle-ci, sans recours à des hausses indues de tarifs postaux : |
| (i) operate efficiently, |
(i) d"être efficace, |
| (ii) improve productivity, and |
(ii) d"accroître sa productivité, |
| (iii) meet acceptable standards of service; and |
(iii) de respecter des normes de service acceptables; |
| (b) the importance of good labour-management relations between the Canada Post Corporation and the union. |
b) l"importance des bonnes relations patronales-syndicales entre la Société canadienne des postes et le syndicat. |
| 10. No order may be made, no process may be entered into and no proceeding may be taken in court |
10. Il n"est admis aucun recours ou décision judiciaire visant à : |
| (a) to question the appointment of the mediator-arbitrator; or |
a) soit contester la nomination du médiateur-arbitre; |
| (b) to review, prohibit or restrain any proceeding or decision of the mediator-arbitrator. NEW COLLECTIVE AGREEMENT |
b) soit réviser, empêcher ou limiter l"action du médiateur-arbitre, ou une décision de celui-ci. NOUVELLE CONVENTION COLLECTIVE |
| 11. As of the day that the mediator-arbitrator reports to the Minister under paragraph 8(2)(d), the collective agreement shall be deemed to be amended by the incorporation into it of |
11. À compter de la date à laquelle le médiateur-arbitre fait rapport au ministre en application de l"alinéa 8(2)d ), la convention collective est réputée modifiée par l"incorporation : |
| (a) any agreement resolving the matters in dispute between the employer and the union arrived at before, or pursuant to, mediation; and |
a) des accords réglant les différends qui sont intervenus entre l"employeur et le syndicat avant la médiation ou par suite de celle-ci; |
| (b) any decision of the mediator-arbitrator in respect of any matters that were arbitrated. |
b) des décisions que le médiateur-arbitre a rendues sur les questions soumises à l"arbitrage. |
| 12. The collective agreement shall also be deemed to be amended by increasing the rates of pay in effect as of February 1, 1997 and set out in Appendix A to the collective agreement by 1.5% effective February 1, 1998, by another 1.75% effective February 1, 1999 and by another 1.9% effective February 1, 2000. |
12. La convention collective est également réputée modifiée par la majoration des taux de salaire énumérés à son annexe A, applicables le 1er février 1997, de 1,5% à compter du 1er février 1998, de 1,75% supplémentaire à compter du 1er février 1999 et de 1,9% supplémentaire à compter du 1er février 2000. |
[17] The relevant provisions of the Canada Labour Code read as follows:
| Powers of Board 16. The Board has, in relation to any proceeding before it, power (a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding; (b) to administer oaths and solemn affirmations; (c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not; |
| Pouvoirs du Conseil 16. Le Conseil peut, dans le cadre de toute affaire dont il connaît_: a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et pièces qu'il estime nécessaires pour mener à bien ses enquêtes et examens sur les questions de sa compétence; b) faire prêter serment et recevoir des affirmations solennelles; c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation, il juge indiqués, qu'ils soient admissibles ou non en justice; |
[...]
| Powers of arbitrator, etc. 60. (1) An arbitrator or arbitration board has (a) in relation to any proceeding before the arbitrator or arbitration board, the powers conferred on the Board, in relation to any proceeding before the Board, by paragraphs 16(a), (b) and (c); and (b) power to determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable. |
Pouvoirs des arbitres 60. (1) L'arbitre ou le conseil d'arbitrage a les pouvoirs suivants_: a) ceux qui sont conférés au Conseil par les alinéas 16a), b) et c); b) celui de décider si l'affaire qui lui est soumise est susceptible d'arbitrage. |
| Procedure 61. An arbitrator or arbitration board shall determine his or its own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to the arbitrator or arbitration board. R.S., c. L-1, s. 157; 1972, c. 18, s. 1; 1977-78, c. 27, s. 55. |
Procédure 61. L'arbitre ou le conseil d'arbitrage établit sa propre procédure; il est toutefois tenu de donner aux parties toute possibilité de lui présenter des éléments de preuve et leurs arguments. S.R., ch. L-1, art. 157; 1972, ch. 18, art. 1; 1977-78, ch. 27, art. 55. |
Test for Bias or Apprehended Bias
[18] The authoritative statement of the proper test to be applied was expressed by Mr. Justice de Grandpré in The Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394:
| ... 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. |
[19] In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636, Mr. Justice Cory opined:
| All administrative bodies, no matter what their function, owe a duty of fairness to the regulated parties whose interest they must determine. |
[...]
| Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal. See Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. |
[20] At page 638, he added:
| It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. |
[21] And at page 643, he concluded:
| Once the matter reaches the hearing stage a greater degree of discretion is required of a member. Although the standard for a commissioner sitting in a hearing of the Board of Commissioners of Public Utilities need not be as strict and rigid as that expected of a judge presiding at a trial, nonetheless procedural fairness must be maintained. |
[22] Where a reasonable apprehension of bias exists, it is irrelevant that there is no actual bias.
[23] The Court also stated that the damage created by apprehension of bias cannot be remedied and that the hearing and any subsequent order resulting from it, must be void.
[24] In Beno v. Canada, [1997] 2 F.C. 527 at p. 540, the Federal Court of Appeal noted that in Newfoundland Telephone, Cory J. established a spectrum for assessing allegations of bias against members of commissions or administrative boards.
[25] Where the Board will be situate in the spectrum will depend on its nature, mandate and function. Here, the Mediator-Arbitrator must be situated between the legislative and adjudicative extremes. Given the serious consequences that the report of the Mediator-Arbitrator may have for the employer and the employees, the permissive "closed mind" standard at the legislative extreme would be inappropriate. The adjudicative extreme would not be appropriate either, given the significant differences between the proceeding before the Mediator-Arbitrator and a civil or criminal proceeding.
[26] It is for the applicant to establish a reasonable apprehension of bias in this case.
[27] The test for determining the existence of reasonable apprehension of bias is an objective one. The relevant inquiry is what would an informed person, viewing the matter realistically and practically " and having thought the matter through " conclude1.
[28] Decision-makers should take care not to discuss specific cases which are pending before them. The test is not whether the comment was imprudent but whether it creates a reasonable apprehension of bias. The apprehension of bias must be a reasonable one in the circumstances.
What is Bias
[29] In deciding whether bias arises in a particular case, one must explore the definition of bias. In this regard, the reasons for judgment of Mr. Justice Cory in R. v. S. (R.D.), [1997] 3 S.C.R. 484 at 528, are most helpful. He wrote that bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to a particular issue. Cory J. cites Scalia J."s explanation of that concept in Liteky v. U.S. , 114 S.Ct. 1147 (1994), at p. 1155:
| The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant"s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant"s prior criminal activities that he will vote guilty regardless of the facts). [Emphasis in original.] |
The Overheard Conversation
[30] Both L"Espérance and Marshall provided affidavits of their recollection of the overheard conversation, were cross-examined on these affidavits and, by leave of the Court and at the request of counsel, gave viva voce evidence at the hearing of this application for judicial review. They maintained their version of the content of the overheard conversation throughout. What is in dispute is not the fact of a conversation having taken place between the Mediator-Arbitrator and Marshall on an Air Canada flight on April 3, 1998, but the content of such conversation.
[31] Although the portions of the transcript of the meeting between the parties on April 15, 1998, which contain the Mediator-Arbitrator"s comments concerning his recollection of the overheard conversation were entered as part of the tribunal"s record, in this proceeding I have given no weight to them in assessing the evidence and reaching my decision. The fact of the conversation, its date and location and approximate duration are not in dispute. In these proceedings the Mediator-Arbitrator did not file an affidavit, was not called to testify in person and accordingly was not subject to cross-examination on his comments.
[32] I did, however, consider the evidence of two witnesses, L"Espérance and Marshall together with the supporting affidavits of Philippe Arbour, the Union"s National Grievance Officer, and of Lynn Bue, a member of the Union"s bargaining committee.
[33] The overheard conversation lasted approximately 30 minutes on an Air Canada flight between Ottawa and Toronto on Friday, April 3, 1998. L"Espérance was in seat 18A, Marshall in seat 18B and the Mediator-Arbitrator in seat 18C (the aisle seat).
[34] Both L"Espérance and Marshall agree that a substantial portion of the overheard conversation dealt with personal matters, such as the Mediator-Arbitrator"s vacation plans and his family. No part of this conversation can provide a foundation for a claim of apprehended bias.
[35] Both L"Espérance and Marshall agree that Marshall himself raised some matters and expressed his views. The comments or statements made by Marshall and not by the Mediator-Arbitrator cannot be the foundation for a claim of apprehended bias. They reflected the views of Marshall. Further, Marshall was not informed about the mediation-arbitration process, was not a participant in the process, had no interest in its outcome and was not knowledgeable about the specific issues before the Mediator-Arbitrator or even about the situation at Canada Post except for some general information. I find, on the evidence, that he did not communicate information to the Mediator-Arbitrator that was properly receivable only at a hearing.
[36] The Mediator-Arbitrator did not embark on his own quest for evidence.
[37] Many parts of the overheard conversation relied on by the Union to support its allegation of reasonable apprehension of bias do not support such an allegation, regardless of whose version is accepted.
[38] L"Espérance overheard the Mediator-Arbitrator say that the Minister had granted an extension of four months to complete the report. Apparently, this was not communicated to the parties by the Minister until April 18, 1998. This is clearly a decision made by the Minister after receiving representations from the parties and is not a decision of the Mediator-Arbitrator. While the disclosure of this information to a stranger, in these circumstances, may be viewed as an indiscretion, it discloses no bias.
[39] The same can be said for that part of the conversation, whether it took part or not, where l"Espérance alleges that the Mediator-Arbitrator agreed with Marshall that he must have a hard job bringing the two sides together. The same applies to the allegation that the Mediator-Arbitrator said that both sides were rude at the hearing or described the relationship as an illness.
[40] The fact that the Mediator-Arbitrator may have said that there were many issues outstanding and that a few of them had been settled by mediation, does not support an allegation of apprehended bias.
[41] The comments by Marshall on the importance of establishing trust in a relationship cannot provide a foundation for disqualifying the Mediator-Arbitrator. Nor can his reference to the Chairman of Canada Post.
[42] Regardless of whose version of the facts is accepted, Marshall"s reference to an article on Canada Post"s profits in a Canada Post magazine distributed to all its employees and of the increasing use of E-mail does not disclose any bias on the part of the Mediator-Arbitrator.
[43] Similarly, regardless of whose version is accepted, the comments by the Mediator-Arbitrator that the profits of the corporation has been affected by the strike and that the volume of first class mail was down, do not support a reasonable apprehension of bias.
[44] In my opinion, there are only three statements attributed by L"Espérance to the Mediator-Arbitrator which, if accepted as accurate, may be relevant to a decision to disqualify the Mediator-Arbitrator on the ground of reasonable apprehension of bias. These three statements concern general profitability, Volume Electronic Mail and pay.
[45] L"espérance testified that he had overheard the following statements which he attributed to the Mediator-Arbitrator:
| 1) that Canada Post"s revenues were not a good level of corporate return, that he had a mandate to ensure a corporate return on investment and that the rate of return has to be comparable to outside industry (Profitability); |
| 2) that the Mediator-Arbitrator had written his decision on Volume Electronic Mail, apparently in favour of the position being advanced by Canada Post (Volume Electronic Mail); |
| 3) that postal workers were very well paid for what they do (Pay). |
[46] It is up to the applicant to provide sufficient evidence to support the claim of disqualification based on a reasonable apprehension of bias. Marshall disputes L"Espérance"s version of the conversation dealing with these three matters.
[47] Marshall is a principal with William M. Mercer, a human resource consulting firm, and works primarily in bi-party arrangements involving representatives of management groups and employee groups to whom he provides advice on health care and group benefit programs.
[48] Marshall and the Mediator-Arbitrator had not met one another prior to this flight to Toronto.
[49] Marshall testified that his conversation with the Mediator-Arbitrator was a general conversation and was no different in most respects than others he had with other people on an airplane. He asserted that the Mediator-Arbitrator did not share his opinions about Canada Post with him.
[50] He further asserted that he did not learn anything from the conversation that would indicate that the Mediator-Arbitrator was leaning one way or another on any issue. Had it been otherwise, what he described as not being a memorable flight, would have been a memorable one.
[51] Neither the time available nor the circumstances were, according to Marshall, appropriate to have had the specific and detailed discussions about business issues of the kind described by L"Espérance in his affidavit.
[52] With regard to the issue of profitability, Marshall"s evidence is that the discussion arose from comments he made regarding a magazine article that he had read, to the effect that the strike had had an impact on Canada Post that would cause it to fall short of its financial goals. Marshall also deposed that he had commented on both the decline in first class mail volume and the increase in the use of E-mail, each of which could affect Canada Post"s profit-making potential.
[53] While the profitability of Canada Post was, therefore, discussed during the course of the conversation and while the Mediator-Arbitrator made reference to two experts who had provided information on profitability that had not been challenged, Marshall"s evidence was that at no time did the Mediator-Arbitrator express any opinion on whether it was part of his mandate to ensure that Canada Post achieved profitability. Marshall and the Mediator-Arbitrator merely agreed that the issue of profitability was important for everyone involved in the mediation-arbitration. This is not sufficient to create a reasonable apprehension of bias.
[54] Contrary to the evidence of L"Espérance, Marshall deposed that he and the Mediator-Arbitrator never discussed Volume Electronic Mail or VEM or any issues relating to VEM that the Mediator-Arbitrator was required to determine. Until reading the initial application to disqualify the Mediator-Arbitrator, Marshall had never heard the phrase Volume Electronic Mail or VEM. Marshall and the Mediator-Arbitrator did, however, discuss the increased use of E-mail.
[55] Contrary to the evidence of L"Espérance, Marshall deposed that neither he nor the Mediator-Arbitrator made any comment as to whether postal workers were well paid for what they did. Marshall did not have any information that would have allowed him to reach such a conclusion2.
[56] On the basis of the record before me, I prefer Marshall"s version of the overheard conversation to that of L"Espérance.
[57] Marshall is a true stranger in these proceedings. He has no connection with the arbitration process and has no interest in the proceedings. Counsel for the applicant did not suggest in argument that Marshall"s evidence was coloured by the fact that Mercer had provided some services to Canada Post.
[58] When he was first approached for his recollection of the overheard conversation by solicitors on behalf of Canada Post, he was told nothing and given no documents other that the notice of application for disqualification presented by the Union to the Mediator-Arbitrator.
[59] He described his conversation with the Mediator-Arbitrator as being general and philosophical and not of a specific nature.
[60] While L"Espérance made notes of the overheard conversation the next day and reported his recollection of the overheard conversation to Lynn Bue the same day, and while Marshall was not called upon to record his recollection until two weeks later, I don"t accord any significance to this two-week difference. What is in issue is not who first made notes of the conversation but whose version is to be relied on.
[61] Marshall and the Mediator-Arbitrator participated in the conversation; L"Espérance did not. L"Espérance is reporting on a conversation in an aircraft between other persons.
[62] Marshall"s evidence is more likely to be reliable than that of L"Espérance who was not part of the conversation. This can be illustrated by reference to these parts of the overheard conversation.
1) L"Espérance attributed to the Mediator-Arbitrator the comments on the impact of the strike at Canada Post. Marshall testified that it was he and not the Mediator-Arbitrator who made these comments and that there was no mention of Performance magazine by name as alleged by L"Espérance.
2) L"Espérance attributed to the Mediator-Arbitrator the comment that first class mail volume was down by 0.1%. Marshall testified that it was he who referred to Canada Post"s annual report that first class mail volume had declined by 0.1% and it was he who commented that it would be a challenge to Canada Post"s profitability.
[63] On cross-examination, L"Espérance insisted that his version was correct even though he was wrong on a number of things based on Marshall"s evidence.
1) L"Espérance testified that Marshall talked about a committee that he worked on in Alberta. Marshall testified that he never worked on a committee in Alberta and that he had mentioned to the Mediator-Arbitrator that he knew of a committee in Alberta made up of a number of judges.
2) L"Espérance testified that Marshall had said that he did work for Justice and Treasury Board. Marshall denied he had done work for Justice.
3) L"Espérance testified that Marshall had referred by name to the Performance magazine. Marshall denied this; he did not recollect the name of the magazine and could not have named it.
4) L"Espérance testified that the Mediator-Arbitrator had said that the Union"s Chief negotiator had told him that the Union was in charge of the work floor. Marshall testified that the notion of control of the work floor was never part of the discussion and the term "work floor" was unknown to him until he read the notice of application for disqualification. Further, in his affidavit, the Chief Union negotiator stated that no such meeting had taken place. Philippe Arbour affirmed: In particular, as Chief Negotiator, at no time did I indicate to the Mediator-Arbitrator that CUPW was in charge of the work floor.
5) L"Espérance testified that the Mediator-Arbitrator talked about Volume Electronic Mail. Marshall testified that until he reviewed the notice of application for disqualification, he was unfamiliar with the term and that VEM had never been discussed, only E-mail.
6) L"Espérance testified that the Mediator-Arbitrator had said that he made counsel appearing before him "officers of the court". Marshall testified that he had never heard the expression and does not know what it means.
7) Marshall denied that he had asked the Mediator-Arbitrator if he intended to use the postal services of other countries for the purpose of comparison; he had no knowledge of postal services in New Zealand or in the United States.
8) Marshall denied that either he or the Mediator-Arbitrator said that the postal workers were well paid for what they do; he had no personal information that would form the basis for any such conclusion.
[64] L"Espérance insisted that he had heard all these comments. Marshall"s denial of these comments was accompanied by an explanation. L"Espérance was sitting beside Marshall and not the Mediator-Arbitrator.
[65] If I were to accept the evidence of L"Espérance I would have to accept that the Mediator-Arbitrator described events that did not happen, such as the meeting with the Chief Union negotiator, and that Marshall had discussed matters he knew nothing about.
[66] It is my finding based on the evidence before me in this proceeding that the applicant has not established an evidentiary basis to support its allegation of reasonable apprehension of bias, as defined in law.
[67] Accordingly, the application for judicial review is dismissed without costs.
Associate Chief Justice
OTTAWA, Ontario
July 27, 1998
__________________1 See: Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd., [1997] A.J. No. 506 (Alta C.A.).
2 The only pay issue between the parties involves a request by the Union for a cost of living allowance (COLA) since section 12 of the Act stipulates the rates of pay in effect as of February 1, 1997, February 1, 1998, February 1, 1999 and February 1, 2000.