Date: 20050203
Docket: T-2468-03
Citation: 2005 FC 167
Ottawa, Ontario, this 3rd day of February, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
DAVID G. CIEBIEN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a Public Service Commission Appeal Board ("the Appeal Board") decision of December 1, 2003 by Chairperson Mr. Gaston Carbonneau in which Mr. David Ciebien's complaint about a staffing process was dismissed. For reasons set out below, I have decided to grant the application on the ground that a reasonable apprehension of bias arose from the Appeal Board proceedings.
BACKGROUND
[2] Mr. Ciebien formerly occupied a financial management position, classified at the FI-04 level, in the Pacific Region of the department of the Correctional Service of Canada ("CSC"). In 1999, his position was declared redundant as a result of a departmental reorganization. Mr. Ciebien was subsequently appointed to a senior administrative position at the AS-07 group and level in the department of Public Works and Government Services and was placed on a list of people with priority for staffing FI-04 positions maintained by the Public Service Commission.
[3] In August 2001, there was an anticipatory competition to fill an upcoming FI-04 position for Regional Comptroller, Pacific Region, CSC. A poster was first published with a closing date of August 31, 2001. On September 4, 2001, following the Labour Day weekend, the deadline for applications was extended to September 14, 2001. Mr. Ciebien applied before the first deadline. The candidate who was ultimately successful, Ms. Goudal, applied before the amended deadline, on September 12, 2001.
[4] Mr.Ciebien was accepted as qualified to compete in the competition in a preliminary screening by the Selection Board (Rodger Brock - Assistant Deputy Commissioner, Corporate Services, Sylvain St. Laurent - Director, Financial Management, and Margaret Fortin - Director, Personnel Administration) based on his education and experience. For the purposes of the competition, he was treated as a reinstatement priority candidate. In other words, unlike other candidates in the competition, he did not need to be considered the best candidate to be appointed. He simply needed to be assessed as qualified to fill the position.
[5] Thirty-five other people also applied for the job. Twenty-two were screened out by the Selection Board and four dropped out of the competition. Ten candidates who met the requirements for education and experience were assessed by interview. The interview was the only assessment method used by the Selection Board. Only one candidate, Ms. Goudal, successfully passed all three required areas of assessment (knowledge, abilities, and personal suitability). Mr. Ciebien passed the knowledge portion, but not the abilities segment of the interview. He was therefore not assessed for personal suitability. Ms. Goudal was ultimately appointed to the position of Regional Comptroller, Pacific Region, CSC. Mr. Ciebien appealed that appointment under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended ("the PSEA").
THE APPEAL BOARD'S DECISION
[6] On December 3, 2002 an Appeal Board consisting of Mr. Yves Nadeau found that it lacked jurisdiction to hear Mr. Ciebien's complaint. By consent, that decision was overturned on July 28, 2003 by the Court and a new hearing was ordered. At that time, Mr. Ciebien filed an amended statement of allegations. That amended statement was approved in a preliminary decision on November 6, 2003 by the new Appeal Board chairperson, Mr.Carbonneau.
[7] At the hearing on November 18th and 19th 2003, Mr. Ciebien attempted to introduce evidence respecting allegations that were not in the amended statement, but had been presented to the first Appeal Board. This was not permitted by Chairperson Carbonneau as there was no reference to those allegations in the amended statement. The decision of December 1, 2003 dealt, therefore, only with the twenty-two allegations contained in the amended statement.
[8] The Appeal Board found that the applicant's twenty-two allegations - including complaints of bias on the part of the selection board, failure to accommodate a disability, and failure to respect the merit principle in a job competition - were without merit.
ISSUES
[9] Mr. Ciebien ably represented himself in these proceedings. In his record and argument he has meticulously identified numerous concerns relating to both the selection board and appeal board proceedings. For the sake of clarity, I adopt the respondent's characterization of the issues: Did the Appeal Board commit any reviewable error in finding that the selection process did not breach the requirements of the merit principle? In particular,
A. Was there any breach of procedural fairness by the Appeal Board?
B. Did the Appeal Board err by not finding that allowing the extension of the application deadline violated the merit principle or the PSEA or the regulations?
C. Did the Appeal Board err in finding that the Selection Board properly screened in Ms. Goudal?
D. Did the Appeal Board err in finding that the Selection Board was entitled to not require a pass on all of the sub-factors?
E. Did the Appeal Board err in finding that the Selection Board did not fail to accommodate his disability?
F. Was there actual bias or a reasonable apprehension of bias on the part of the Appeal Board?
[10] As indicated above, I have decided to allow this application on the last ground. I will address the other issues for the benefit of the Appeal Board constituted to re-hear Mr. Ciebien's appeal.
[11] As a preliminary matter, the respondent has objected to the inclusion in Mr. Ciebien's Application Record of material that was not before the Appeal Board. Some of the argument in Mr. Ciebien's Memorandum also relates to material he has submitted that is not in the certified record of the Appeal Board proceedings. It is settled law that in judicial review proceedings the Court is bound by the record filed before the administrative tribunal: see for example Koulamallah v. Canada (Minister of Citizenship and Immigration) 2003 FC 1043.
[12] New evidence is admissible if it relates to issues concerning procedural fairness or jurisdiction: Gitxsan Treaty Society v. Hospital Employee's Union, [2000] 1 FC 135 (C.A.); Association of Architects (Ontario) v. Association of Architectural Technologists (Ontario), [2003] 1 F.C. 331. To the extent that Mr. Ciebien's additional evidence and argument relates to those issues, I have considered them.
ARGUMENT & ANALYSIS
A. Procedural fairness
[13] Mr. Ciebien submits that prior to the interlocutory hearing on his new allegations, he was not provided with a copy of the written arguments of the respondent. Furthermore, although he had requested that his hearing be held in English, the department's submissions were in French. He also complains that he was not allowed to present allegations and facts that were presented at the first Appeal Board hearing.
[14] The respondent submits that the interlocutory decision was in the applicant's favour, in that it allowed him to submit amended allegations. The respondent also submits that it was reasonable for the Appeal Board to allow only the allegations from the amended statement of allegations, as the former allegations had apparently been abandoned.
[15] Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.).
[16] Mr. Ciebien did not claim at the Appeal Board hearing that he had been prejudiced by the Chairperson's preliminary decision and, in my view, it is not open to him now to complain about that decision. It appears that Mr. Ciebien had assumed that his original statement of allegations would continue to be considered and would be supplemented by the amended statement. He was, therefore, surprised to find at the hearing that the Chairperson would not allow him to make argument or introduce evidence respecting those allegations. If his complaints about the procedure adopted by the Appeal Board were limited to this issue, I would not find that it was unfair to Mr. Ciebien. He had chosen to file the amended statement of allegations and, in my view, was bound by that statement at the hearing.
[17] Further, I do not find that he was prejudiced by the fact that the department's submissions with respect to the amended statement were in French as no decision was being made on the merits of his allegations, simply whether he could file an amended statement. He was not limited in his ability to make submissions to the Chairperson and the outcome was in his favour.
[18] Mr. Ciebien wanted the original electronic posting of the job to be introduced as evidence to impugn the credibility of Mr. Brock, one of the Selection Board members, who testified that the second posting was an amendment that was made before the original time period closed. The introduction of that evidence was denied by the Chairperson. However, the second electronic posting on the "Publiservice" Human Resources web site appears to have formed part of the Tribunal record in any case. That poster clearly indicates that a previous version of the poster was entered on August 16, 2001 and that the current version was entered on September 4, 2001. Other than the new closing date, there was no change to the poster.
[19] Mr. Brock, the chair of the Selection Board and manager responsible for the position within CSC, had stated in his evidence that he had caused a second poster to be issued as insufficient candidates would have come forward due to the summer season. He considered the second poster to be the correct or "official" version. The Appeal Board's view (at paragraph 23 of the decision) was that the second poster constituted an amendment but found that nothing turned on this as the PSEA did not prevent it from being done. I will discuss the question of the deadline extension below, but do not find that Mr. Ciebien was denied procedural fairness by the exclusion of his evidence relating to the poster as it was, in fact, considered by the Appeal Board, though not with the result he sought. Further, I do not find that Mr. Brock's credibility as a witness is impugned to any significant degree by his apparent error with respect to when the second poster was issued and the Appeal Board did not err in accepting his evidence.
[20] Much of the new evidence that Mr. Ciebien wanted to introduce at the hearing and which the Chairperson disallowed was related to corroborating the fact that he suffers from a disability and to explaining its nature. The evidence would have shown, Mr.Ciebien argues, that he suffers from sleep disorders, including narcolepsy, and that his performance in the interview portion of the competition deteriorated as a result of that disability.
[21] The respondent was permitted to file evidence respecting prior complaints by Mr. Ciebien related to his disability. That evidence included an investigation report by the Canadian Human Rights Commission dated January 6, 1999 recommending dismissal of Mr. Ciebien's complaint of employment discrimination, and an investigation report by the Public Service Commission dated April 2, 2002 which concluded that Mr. Ciebien's complaints about his treatment by CSC, including the selection process in these proceedings, were unfounded.
[22] Mr. Ciebien raised the issue of his disability and whether it was properly accommodated in his revised statement of allegations. In my view, it was not reasonable for the Appeal Board to disallow his evidence as to his disability, particularly as it accepted evidence from the respondent that related to the same condition. Indeed the Appeal Board relied upon that evidence in arriving at its conclusions on the accommodation issue.
[23] Procedural fairness means at a minimum allowing each side to present its case and providing both parties with the opportunity to be heard: Canada (Minister of Citizenship and Immigration) v. Dhaliwal-Williams (1997), 131 F.T.R. 19 (T.D.).
[24] The respondent argued that even if there had been a breach of natural justice in the denial of the applicant's evidence, that does not necessarily warrant setting aside the tribunal's decision if correcting the error would not affect the result of the case. The outcome was "inevitable" in that the decision-maker "would be bound in law to reject the application": Mobil Oil Canada Ltd., v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. Justice Iacobucci noted at page 228 of Mobil Oil that these circumstances were "exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition".
[25] It is not clear to me that the introduction of Mr. Ciebien's evidence relating to his disability would have made a difference in the outcome of his appeal, as I will discuss below with respect to the duty to accommodate. In my view, the Appeal Board would likely have arrived at the same conclusions with respect to the selection board process had it accepted Mr. Ciebien's evidence. However, I do not need to determine his application for judicial review on this ground as I have decided to allow it for another.
B. The deadline extension
[26] Mr. Ciebien submits that because the competition was to end on August 31, 2001, the extension of the deadline to September 14, 2001, as of September 4th, was unfair and that people who applied after the original cutoff (including Ms. Goudal) should have been excluded from consideration. He argues that the Appeal Board erred in law in finding that issuing a second or amended poster did not violate the merit principle or any provision of the PSEA or regulations.
[27] The respondent argues that there was nothing incorrect in law or unreasonable in the Appeal Board's finding that the extension of the deadline was justifiable due to the summer holidays and the desire to have enough applicants. There were no modifications to the competition, save for the deadline for applications.
[28] Mr. Ciebien relies upon section 16 of the PSEA and section 8 of the Public Service Employment Act Regulations ("PSER"). Section 16(1) of the PSEA states in part: "The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications".
[29] PSER subsection 8(1) elaborates further on the issue of deadlines:
8(1)The Commission shall examine and consider any written application referred to in subsection 16(1) of the Act that, subject to subsections (2) and (3), is received at the address and by the date specified in the notice of a competition.
(2) An application shall be considered to be received by the date specified in the notice of a proposed competition if
(a) in the case of an application that was sent by mail, it bears a postmark or postage meter impression authorized by the Canada Post Corporation that is not later than the closing date specified in the notice and the application is received at the address specified in the notice within 10 days after the closing date; and
(b) in the case of an application that was submitted by means other than by mail, it is received at the address by the closing date specified in the notice.
[30] There is no express limitation in either the Act or the Regulations that precludes the Commission from extending the time within which applications may be submitted. Mr. Ciebien urges that the Court adopt a strict interpretation of the words "within the time prescribed" in subsection 16(1) and cites several decisions in support of that proposition: Lynne Lapointe, Public Service Commission Appeal Board Decision, File 02-JUS-00089 (Bumbers); Dyker v. Canada (Public Service Commission Appeal Board) [1978] F.C.J. No. 912 (F.C.A.); Allard v. Public Service Commission et al [1982] 1 F.C. 432 (F.C.A.).
[31] In Dyker, the application for the appointment attacked had not been received within the time advertised as the closing date for the competition. From the brief recital of the facts in the decision, it does not appear that there was a new or amended poster issued. The Court of Appeal affirmed that PSEA subsection 16(1) requires that applications must be received within the "prescribed" time. The decision does not say, as the applicant would have me interpret it, that the prescribed time can not be extended.
[32] Allard concerned a notice of appeal that was out of time as it was received after the 14 day appeal period prescribed by the Commission had expired. The time limit had been set in the regulations. The Court of Appeal found that it had therefore been "prescribed" within the terms of section 21 and could not be disregarded by the Commission. There is no comparable fixed time limit in the case before me.
[33] Lapointe is more on point as it concerned a competition for which two posters were issued. The first fixed the time period for applications as between June 21, 2001 and July 10, 2001. Twenty six applications were received before the close of business on July 10, 2001. The Department then issued a second Notice of Competition on July 17, 2001 for the same position with a closing date of July 20, 2001. The July 17th notice did not indicate that the time period ran from the opening of the initial period on June 21st. The successful candidate submitted her application minutes after the re-opening of the time period. That appears to have been a significant factor in the outcome of the case as it was explored in some detail in the decision.
[34] The Appeal Board Chair in Lapointe found that there had been no extension of the time prescribed in the original notice and that the time period for receipt of applications had ended on July 10th. He found that section 16(1) of PSEA does not allow the Commission to prescribe another time period once the time period it has already prescribed has been established and has elapsed. He concluded that allowing the re-prescribing of the time period would lend itself to arbitrariness and erode the transparency and fairness of a selection process.
[35] Contrary to the findings in Lapointe, Chairperson Carbonneau found that the second notice constituted an amendment and extension of the first poster and concluded that the amendment had no material effect upon the fairness of the competition.
[36] In my view, the Appeal Board's conclusions in this case were neither unreasonable nor incorrect in law. Mr. Brock's evidence was that the Selection Board had not received a sufficient number of candidates due to the holiday period and that he therefore caused the second poster to be issued to allow others to apply who might not have received notice of the competition. This is not a case, unlike Lapointe, where there was evidence to support the inference that the competition was reopened to allow a particular candidate to apply. I note also that, unlike in Lapointe, there was no significant break in the time period during which applications could be received other than for a few days over the Labour Day weekend and the competition was not re-opened in the sense that a new time period was set for receiving applications.
[37] The Act and Regulations are silent on whether the Commission has the authority to extend a time period once it has been prescribed in a published notice. The object of the merit principle is to find the best candidates for any position. In my view, beginning the selection process with a larger pool of potentially qualified candidates helps to support the merit principle and management should be allowed some flexibility in determining how large that pool should be. I do not believe that the extension of the application period in this case resulted in any unfairness to Mr. Ciebien or to the others who had submitted their applications prior to the close of business on August 31st as they were not excluded from consideration.
C. The screening-in process and assessment
[38] Mr. Ciebien submits that Ms. Goudal should have been screened out because only three out of four of the required areas of experience specified on the Statement of Qualifications for the position and on the electronic notice - budgeting, analysis, accounting and systems - were assessed. The official Competition poster, by contrast, refers to "budgeting analysis, accounting and systems" without a comma between the first two words.
[39] Mr. Ciebien also submits that Ms. Goudal should have been screened out because she lacked "extensive" experience.
[40] Mr. Ciebien submits that a pass mark of 50% for knowledge was unreasonable because it would result in candidates who were assessed below the point of fully satisfactory being given a pass mark. He also submits that his answers should have been given more points because the Selection Board failed to assess his alternative responses.
[41] The respondent argues that the Appeal Board found that it was the job of the Selection Board to assess Ms. Goudal's qualifications and that it did so reasonably. The definition of "extensive" used in determining experience and the pass-mark for knowledge were also up to the Selection Board, not the Appeal Board or the applicant. The Selection Board reasonably found that Mr. Ciebien's responses were lacking and that Ms. Goudal qualified for the position.
[42] The only evidence that Ms. Goudal was assessed according to three instead of four criteria appears in an e-mail sent by Margaret Fortin, a Selection Board member, to Mr. Ciebien. There, she noted that "Management also expected the candidates to have experience in all three areas (budgeting analysis, accounting and systems)." I note that she says that she expected the candidates, not just Ms. Goudal to have experience in these three areas. Therefore, if there was an irregularity in the competition in this regard, which I do not accept, it apparently affected all candidates equally. I find that the presence or lack of a comma in the description of the experience required for "budgeting analysis" makes no substantive difference to the assessment of qualifications for a financial management position.
[43] The question of whether the candidates met the requirements of the job was for the Selection Board to decide. It was also up to the Selection Board to set the relevant pass marks for each criterion and to score the candidates according to their own judgment. The Appeal Board properly upheld the Selection Board's findings in this respect and should be given considerable deference. I see no grounds to interfere with its conclusions.
D. Passing all the sub-factors
[44] Mr. Ciebien submits that the Selection Board breached the merit principle by failing to require that Ms. Goudal pass each sub-qualification. Ms. Goudal failed one question each in knowledge and ability, though she received passing marks for each qualification cumulatively.
[45] The respondent submits that it is up to the Selection Board to decide which sub-qualifications are essential (or non-compensatory) and which are desirable (or compensatory). The Selection Board did not breach the merit principle by assessing qualifications in an aggregate manner or by using compensatory sub-qualifications.
[46] The issue is whether the merit principle requires that the Selection Board establish a "pass-mark" for each sub-factor, even if compensatory, and assess the candidates against that mark. This is a pure question of law to be assessed against a correctness standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235.
[47] The Federal Court of Appeal has recently clarified the law in this area in two related decisions which differ only with respect to certain of the underlying facts: Attorney General of Canada v. Carty et al (2004), 35 C.C.E.L. (3d) 73 (F.C.A.) and Attorney General of Canada v. Mercer et al. (2004), 35 C.C.E.L. (3d) 92 (F.C.A.). In these decisions Justice Noël, for the Court, reviewed several earlier authorities relied upon by the applicant in these proceedings for the proposition that the Appeal Board had erred in law in finding that the successful candidate did not have to succeed on each sub-factor within a posted qualification.
[48] Justice Noël concluded that the merit principle was not breached where a minimum "threshold" or "pass-mark" was not assessed for each sub-factor which an employer had effectively designated as "compensatory" and the Selection Board evaluates this qualification according to an appropriate minimum standard. He states at paragraph 24 of Carty:
Indeed, where an employer has made such a designation, the best candidate has to be the one who achieves in the aggregate the highest mark for the qualification, regardless of his or her score in any of the individual sub-factors.
[49] Accordingly, I find that the Appeal Board did not err in law in its decision on this issue.
E. Accommodation of disability
[50] Mr. Ciebien submits that the Appeal Board erred when it found that the Selection Board did not have to accommodate his disability. Mr. Ciebien contends that his poor performance during part of the Selection Board interview must be attributable to this disability. His answers to certain questions did not reflect his deep knowledge and lengthy experience with the subject matter and that he must have gone into a form of automatic behaviour during which he was able to respond to questions but at a low level of functioning. He submits that the Selection Board ignored evidence of the deterioration of his performance and failed to make allowances for this.
[51] The Appeal Board preferred the evidence of Mr. Brock that the members of the Selection Board were not aware of the disability and had not observed any change in the applicant's comportment during the interview.
[52] Mr. Ciebien had indicated on his application form that he had a disability without providing any particulars of its nature. The department wrote to him prior to the interview asking that he contact them to discuss any special arrangements that might be necessary. He did not respond to the letter as he did not know of any specific accommodation that would help him. Mr. Ciebien submits that two of the Selection Board members ought to have known about his disability by reason of his history with the department, including a medical leave of absence. He submits that it is the responsibility of the employer to determine the appropriate type of accommodation based on the needs of the disabled person: Bates v. Canada (Attorney General), [1997] 3 F.C. 132 (T.D.).
[53] The respondent submits that the duty to accommodate a disability involves responsibilities for all parties, including the person accommodated: Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 994. The evidence shows, the respondent argues, that Mr. Ciebien did not respond to the inquiry as to the need for any special arrangements, so the Selection Board cannot be faulted for failing to accommodate, especially when the applicant concedes that he is unaware of any special accommodation that could have been made.
[54] The evidence is clear that Mr. Ciebien did not alert the department to the nature of his disability nor of any means by which he could be accommodated prior to his interview. He did not respond to the department's invitation to provide such information. In the hearing before me, Mr. Ciebien argued that his failure to respond was immaterial as knowledge of his condition must be attributed to the Selection board and the Selection board had breached its duty to him in that, with such knowledge, it had taken no steps to ascertain whether some form of accommodation could be provided. In my view, however, his argument that the Selection Board members must have had personal knowledge of his disability is not supported by the evidence. The members denied that they were aware of any disability and their evidence was that they noticed no change in his comportment during the interview.
[55] The 1999 Canadian Human Rights Commission investigation report accepted as evidence by the Appeal Board indicates that Mr. Ciebien's complaint at that time was based on allegations that he was discriminated against because of a perception held by his supervisor that he suffered from narcolepsy, which at that time he denied. Mr. Ciebien had been cleared by his medical advisors and the Department of Health as not suffering from that condition, following a medical leave of absence, but believed that he continued to be treated as if he did and this had an adverse affect on his employment opportunities. The evidence that he wished to file at the Appeal Board hearing, and which was not allowed, included a more recent diagnosis from another doctor indicating that he did in fact suffer from the condition. There was no evidence before the Appeal Board indicating that the members of the Selection Board were aware of this more recent diagnosis, or for that matter, the earlier events documented in the 1999 report.
[56] I do not think that Bates, supra supports the applicant's position, as in that case the Selection Board was clearly aware that the candidate's performance in a written test did not conform to her acknowledged ability to do the work. Two Appeal Boards concluded that the Selection Board should have inquired into the reasons for this, including the possibility of a learning disability for which they could have made some accommodation.
[57] In this case, the Appeal Board did not accept Mr. Ciebien's allegations with respect to the failure to accommodate. While I have found that the Board erred in not accepting his evidence as to the nature and affects of his disability, as indicated above I do not believe that it would have had a material affect on the Appeal Board's findings with respect to the accommodation issue as those findings were based on the Selection Board's lack of knowledge of Mr. Ciebien's medical history. I see no error of law or patently unreasonable finding of fact in the Appeal Board's conclusions that would warrant the intervention of the Court on this ground.
F. Bias
[58] Mr. Ciebien submits that the Appeal Board was biased against him. In the proceedings before the Appeal Board he had also alleged that the Selection Board showed actual bias against him throughout the staffing process. The Appeal Board found that there was no evidence led in support of that allegation and concluded it was without merit.
[59] Mr. Ciebien contends that the Appeal Board's bias against him is evident from its refusal to allow him to present all of his allegations and much of his evidence and from the manner in which he was treated during the hearing. Moreover, he argues that the appearance of bias arises from discussions which the Appeal Board Chairperson, Mr. Carbonneau, had with the departmental representative on two occasions during the hearing while Mr. Ciebien was out of the room. Those discussions were preserved on the tape recording of the hearing.
[60] Mr. Ciebien had submitted an informal transcript of portions of the Appeal Board hearing as part of his Application Record. At my direction, the respondent arranged to have a court reporter prepare a transcript of the third tape of the proceedings. It is clear from that transcript, as well as from listening to the tape itself, that the Chair of the Appeal Board and the departmental representative engaged in ex parte discussions while Mr. Ciebien was out of the room to make copies of documents.
[61] I find that a reasonable inference may be drawn from those ex parte discussions that Mr. Carbonneau took advantage of Mr. Ciebien's absence from the room to offer some advice to the departmental representative, Mr. Vaillancourt, on the presentation of his case. At page 27, Mr. Carbonneau advised Mr. Vaillancourt to "[b]e careful how you answer the qualifications because that is a case on point." He also made the comment, "Il est dur à suivre", referring presumably to Mr. Ciebien, to which Mr. Vaillancourt replied, "you have all my sympathy". At page 40 there was a further exchange in French between the Chair and Mr. Vaillancourt concerning the issue addressed above respecting evaluation of the qualifications. These exchanges could lead an observer to conclude, in my view, that the proceedings were not being conducted in an impartial manner.
[62] I am also concerned with the Chairperson's treatment of Mr. Ciebien during the hearing. I have listened to portions of the tape recordings. Particularly at the beginning of the hearing, when most of the issues about the introduction of evidence arose, Mr. Carbonneau frequently interrupted the applicant and was dismissive of his submissions in tones of exasperation and impatience. Mr. Carbonneau did not allow Mr. Ciebien to complete his submissions and frequently cut him off when he attempted to explain why the evidence he proposed to introduce and the arguments he wished to make were relevant.
[63] I have no doubt that many of Mr. Carbonneau's interventions were intended to exclude irrelevancies and to keep the proceedings on track. Mr. Ciebien has the tendency, which I observed in the hearing before me, to complain about minutiae and to revisit past grievances that are not germane to the issues at hand. However, that does not justify uncivil behaviour by the chair of a tribunal before which he is appearing.
[64] The respondent submits that neither actual nor a reasonable apprehension of bias has been made out. Actual bias cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions. It must be supported by material evidence demonstrating conduct that derogates from the standard: Arthur v. Canada (Attorney General) (2001), 283 N.R. 346 (F.C.A.).
[65] While the conduct of the Appeal Board Chairperson in these proceedings derogated, in my view, from the expected standard, I do not find that the case to establish actual bias has been made out. As I have found above, the Appeal Board properly dealt with most of the pertinent issues raised by the applicant in his revised statement of allegations and I do not find that it was predisposed to decide against his application.
[66] The test for disqualifying apprehension of bias and the proper manner of its application are set out in the dissenting judgment of de Grandpré J.in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. This test was adopted by the Supreme Court in R.v.S.(R.D.), [1997] 3 S.C.R. 484. See also Satiacum v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 430 (F.C.A.).
[67] A reasonable apprehension of bias may be raised where an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide the issue unfairly.
[68] In my view, an objective third party sitting in the hearing room during the appeal would conclude from the tone of the proceedings and from the ex parte discussions between the Chairperson and the departmental representative that Mr. Ciebien did not receive a fair hearing. Thus I find that a reasonable apprehension of bias has been made out and that this matter must be remitted for re-hearing before a differently constituted Appeal Board.
Costs
[69] Mr. Ciebien is entitled to a lump sum of $1,000 as a moderate allowance for his time and effort spent in preparing and arguing at the hearing, and to his reasonable disbursements. If the parties cannot agree on an amount, Mr. Ciebien can request an assessment of his disbursements by an assessment officer under Rule 405.
ORDER
THIS COURT ORDERS that the application for judicial review of the Appeal Board decision of December 1, 2003 is granted and the matter is remitted to a differently constituted Appeal Board for a fresh hearing and determination in accordance with the reasons given for this Order.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2468-03
STYLE OF CAUSE: DAVID G. CIEBIEN
AND
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 21, 2004
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: February 3, 2005
APPEARANCES:
David G. Ciebien FOR THE APPLICANT
(Self-represented)
Michael Roach FOR THE RESPONDENT
SOLICITORS OF RECORD:
DAVID G. CIEBIEN FOR THE APPLICANT
Ottawa, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario