Walden et al. v. Attorney General of Canada (representing the Treasury Board of Canada and Human Resources and Skills Development Canada)

Walden et al. v. Attorney General of Canada (representing the Treasury Board of Canada and Human Resources and Skills Development Canada)
Collection
Canadian Human Rights Tribunal
Date
2023-03-31
Neutral citation
2023 CHRT 13
File number(s)
T1111/9205, T1112/9305, T1113/9405
Decision-maker(s)
Garfield, Matthew D.
Decision type
Ruling
Grounds
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
13
Date:
March 31, 2023
File Nos.:
T1111/9205, T1112/9305 & T1113/9405
Between:
Ruth Walden et al.
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada (representing the Treasury Board of Canada and Human Resources and Skills Development Canada)
Respondent
- and -
Sue Allardyce, Aubrey Brenton, Robert Churchill-Smith, Glen Coutts, Claudette Dupont, Pat Glover, Gary Goodwin, Valerie Graham (Estate of), Carol Ladouceur, Mayer Pawlow, Cindi Resnick, Sharon Smith and Don Woodward
Interested parties
Ruling
Member:
Matthew D. Garfield
Table of Contents
I. Introduction 1
II. Background To Walden Main Proceeding and MOA 1
III. VRCM Group’s Motion for Redetermination of Eligible Work 2
IV. VRCM Group’s Instant Motion for Recusal and Adjournment 7
V. Issues 9
VI. Legal Principles 10
A. Waiver 10
B. Apprehension of Bias 10
VII. Parties’ Positions 11
VIII. Evidentiary Issue: November 4, 2022 Email 13
IX. Analysis: The Eight Allegations 15
A. Allegation # 1: Hybrid Hearing Request 16
B. Allegation #2: Proposed Testimony of Mr. Armstrong 18
C. Allegation #3: The VRCM Settlement Privileged document/Lack of Response to Allegations Against the Respondent 22
D. Allegation #4: Management of Recent Respondent Deadlines for witness list/will-says 26
E. Allegation #5: Disclosure Requests 28
F. Allegation #6: Respondent Not Held Accountable for Withholding Relevant Documents; Incomplete Relevant Documents Provided by the Tribunal 30
G. Allegation #7: Refusing to Hold a Written Hearing 32
H. Allegation #8: Appearance of a Conflict of Interest 33
X. Conclusion 36
I. Introduction [1] Fifteen individuals (two Complainants and thirteen non-Complainants granted Interested Party status, collectively referred to as “the VRCM Group” or “the Group”) who had filed a combined/consolidated motion for compensation in 2014 under the 2012 Memorandum of Agreement (“MOA”) brought a motion on November 7, 2022 that I recuse myself as the presiding member (for reasons of alleged unfairness and apprehension of bias, and perceived conflict of interest) and grant them an adjournment of their upcoming Eligible Work hearing that month. Upon reading the parties’ submissions including case law and upon much reflection, I dismissed the Group’s motion for recusal and adjournment on November 24, 2022, with Reasons to follow. The following day the Group withdrew its Eligible Work motion and the upcoming hearing was adjourned and the file closed, pending the Tribunal’s Reasons. These are those Reasons for Ruling.
II. Background To Walden Main Proceeding and MOA [2] The Group is comprised of fifteen Vocational Rehabilitation Case Managers (“VRCMs”) in the Canada Pension Plan Disability Benefits section of the renamed Employment and Social Development Canada (“ESDC”). (Two members of the Group, Karen Pick and Andrea Taylor, received Walden compensation as Complainants for their work as MAs, and hence already had standing before the Tribunal. Accordingly, they are included in “Walden et al.” in the style of cause/title of proceeding.) In 2014 the Group brought a motion before the Canadian Human Rights Tribunal (“Tribunal”) for redetermination of compensation and other remedies by ESDC, specifically that their work as VRCMs met the definition of “Eligible Work” under the MOA, the 2012 settlement agreement.
[3] The MOA itself is the result of human rights complaints filed by Ruth Walden and 416 other Complainants between 2004 and 2007, challenging the classification of Medical Adjudicators (“MAs”), a group made up predominantly of female nurses involved in the assessment/adjudication of applications for Canada Pension Plan (“CPP”) disability benefits, when compared to Medical Advisors, a group made up predominantly of male doctors working alongside the MAs. The Walden Complainants alleged that, as a result of their classification, Medical Advisors received better compensation, benefits, training, professional recognition and opportunities for advancement than MAs despite the fact that both groups performed similar work in the assessment/adjudication of CPP disability claims. They successfully argued that this amounted to adverse differentiation on the ground of sex and violated both sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (“CHRA”). This decision was upheld by the Federal Court on judicial review: Canada (Attorney General) v. Walden, 2010 FC 490. See also the Tribunal’s Liability (2007 CHRT 56) and Remedy (2009 CHRT 16) Decisions, and judicial review of remedy (2010 FC 1135) and appeal (2011 FCA 202) Decisions.
[4] The MOA was concluded and signed on July 3, 2012. On July 31, 2012, the Tribunal issued a Consent Order implementing the terms of the MOA. The Tribunal retained jurisdiction to deal with any dispute or controversy surrounding the meaning or interpretation of the MOA upon the application of any party or individual who may have performed Eligible Work as defined in the MOA. The Tribunal initially retained this jurisdiction until June 30, 2014, but had since extended this date to March 31, 2015 to determine any outstanding motions (like the Eligible Work ones) filed by said date, and then on consent beyond that date with respect to the issue of gross–up payments only. By November 2019, the last remaining parts of the remedial implementation phase of the Walden proceeding were the VRCM Eligible Work motions of the Group and one other retired VRCM’s motion, which had been adjourned subsequently for medical reasons.
[5] It is important to note that the Group’s Eligible Work claim is not a new, stand-alone complaint of discrimination dealing with liability or remedy under the CHRA. Its motion is for compensation under a settlement agreement, the MOA, in the context of the remaining part of the implementation phase of the Walden proceeding.
III. VRCM Group’s Motion for Redetermination of Eligible Work [6] As noted earlier, the Group originally filed its motion on June 27, 2014. There were sixteen Case Management Conference Calls (“CMCC”) held with the parties, dealing with pre-hearing matters, including motions for disclosure, a motion to limit a party’s witnesses’ testimony, a motion about the scope of the hearing, etc. Tribunal Mediation was offered several times, but declined by the Respondent. The parties did have “without prejudice” and settlement communications over the course of this claim for compensation under the MOA. I made many rulings and orders/directions over the course of this matter, some reported (e.g., in the www.CanLII.org Internet database), and others orally or via Tribunal correspondence (e.g., CMCC summary letters), and of course all part of the Official Record.
[7] The Group went through different representational phases: at first represented by fellow Group members Gary Goodwin and Carol Ladouceur from 2014 to 2021 and 2022 respectively, with brief substitutions during that period by various counsel. On September 22, 2021 Mr. Goodwin resigned as lead representative and Ms. Ladouceur was removed by me as remaining representative for non-cooperation/lack of responsiveness on January 21, 2022. At that point each member of the Group was deemed self-represented. Upon writing the parties and convening a CMCC on March 11, 2022 fellow Group member Aubrey Brenton agreed to consider taking on the role of representative of the Group, with the assistance of Mr. Goodwin, Ms. Ladouceur and the other members. Mr. Brenton confirmed his willingness to represent the Group, and the Group’s agreement that he do so, in April 2022. He remains as the sole representative of the Group.
[8] After lengthy pre-hearing case management including voluminous disclosure and production of the parties, hearing dates were set for Victoria, B.C. to commence in November 2017. Unfortunately, Mr. Goodwin had surgery scheduled during this time and understandably required post-surgery recovery time. On consent, I granted the adjournment with new hearing dates to be scheduled upon Mr. Goodwin being medically cleared. (The matter was not put into abeyance; case management would continue, as indicated in the Tribunal’s reasons of November 10, 2017.)
[9] Fortunately, Mr. Goodwin was able to resume his duties as lead representative and the case was further case managed to a new set of hearing dates, with accommodations, scheduled to commence a year later in November of 2018. Unfortunately, again due to medical reasons, Mr. Goodwin sought an adjournment or abeyance until medically cleared. The Respondent opposed. I granted the adjournment. Neither co-representative Carol Ladouceur nor another Group member was willing or able to take on the role as sole representative, which I understand. I note that I had advised the Group orally and in writing that it cannot expect perpetual, automatic adjournments. The Group should consider making alternate representational plans (e.g., represented by a lawyer, para-legal, other member(s) of the Group). I stressed the importance of achieving finality in this matter and the conclusion of the implementation phase of the Walden proceeding.
[10] I had also agreed to the Group’s suggestion that I swap or switch the Eligible Work hearing queue by putting the Group’s motion on hold and resume the hearing process for the only other remaining Eligible Work motion held in abeyance on consent. (Another former VRCM had withdrawn her Eligible Work motion on October 7, 2019.) The retired VRCM’s motion resumed and was set for hearing. Unfortunately, for medical reasons, she was unable to continue, then was cleared with accommodations, and then medically uncleared again. Her matter remains to this day adjourned without a fixed resumption date pending her medical clearance.
[11] From October 17, 2018-January 21, 2022, the Group’s motion was in abeyance. (Mr. Goodwin had written on July 9, 2020 that he remained unable “indefinitely due to the chronic nature of (my) conditions” to resume his duties and act as lead at a hearing. No current, updated medical documentation was provided and none was required by me.) But given the likelihood of the other retired VRCM’s claim not proceeding to hearing soon, and upon the Respondent’s request, I decided to hold a CMCC with the Group to discuss “next steps” including whether the abeyance should be lifted. It was at this point that the Group, or at least their co-representatives, became uncooperative. More than one attempt was made to get the available dates for Mr. Goodwin and Ms. Ladouceur, by correspondence and call/message from the Tribunal Registry Officer. No response from Ms. Ladouceur was received.
[12] Eventually, a memorable email was sent by Mr. Goodwin on September 22, 2021 resigning as lead representative, peppered with pejorative comments and a colourful baseball metaphor directed the Tribunal’s way, as follows:
It is true that I have delayed responding to the request for CMCC date availability well past deadline. Guilty as charged…I suppose I should not have been too surprised by this [the Tribunal wishing to hold a CMCC to discuss lifting the adjournment], however, as my perception over the seven years of our Motion at the CHRT is that when Ms. Marchildon says jump, the CHRT’s response is often “how high”.
…
Apologies for the oversimplified sports metaphor in advance, but it often felt like we were a beer league baseball team playing the New York Yankees of the 1950’s and early 1960’s, and the umpire was Mickey Mantle’s cousin (although no one knew that). Although we occasionally got a hit, it was usually the result of an unforced error, and almost every close call at the plate went in the Yankees favour. We never stood a chance, really.
[13] In response to Mr. Goodwin’s September 22, 2021 email, the Tribunal sent a letter to the parties on October 4, 2021 whereby I advised Mr. Goodwin and the Group that allegations of bias are a serious matter and the proper procedure is for the party to raise said issues at the earliest opportunity in the form of a recusal motion for the member to withdraw from the proceeding, supported by evidence and legal authorities. The Group did not do so until it filed its motion for recusal on November 7, 2022 (based on its November 1, 2022 “Appeal to the Chairperson” document) – thirteen months later.
[14] Having not received the available CMCC dates from the Group’s representative(s), the Tribunal was left with no choice but to go ahead and schedule a CMCC with all the parties, who were technically at that point still represented by Ms. Ladouceur. That CMCC took place on January 21, 2022 attended by four members of the Group and the Respondent’s counsel and client. Ms. Ladouceur, who did not attend the CMCC, was removed as the Group’s representative. A subsequent CMCC was held on March 11, 2022 attended by four members of the Group and the Respondent’s counsel and client. This was the first attendance by Mr. Brenton who indicated that he would advise if he would represent just himself or one or more members of the Group upon consulting with them. He advised on April 11, 2022 that he would take on the role as lead representative of the Group.
[15] The Tribunal allotted significant time and resources to assist Mr. Brenton in getting immersed in the file and to prepare for a hearing. We agreed to provide key documents of the file to Mr. Brenton and any other part of the file that he requested. I made it clear at the CMCC that the onus rests with Mr. Brenton to contact the Registry Officer, Judy Dubois, regarding specific documents needed. The Registry Officer spent considerable time preparing and sending key and other documents and dealing with other requests from Mr. Brenton, providing them in the usual electronic format, but also in paper copy per Mr. Brenton’s requests. (This was atypical: normally a new representative would receive the file from the party’s previous representative.) I also directed that the file of the other retired VRCM’s similar Eligible Work motion be made available to the Group, with that individual’s consent. I thought this might be helpful, given the similar issues to the Group’s motion, to see the list of witnesses, summaries of anticipated evidence (“will-says”) and Table of Contents of proposed exhibits, including any requested copies of the actual documents.
[16] The Tribunal also set deadlines for the parties to provide any changes to previously filed witness lists and summaries of anticipated evidence from 2018, and provide any supplemental disclosure and production. We also discussed other issues during the renewed case management phase in 2022, including the proposed calling of retired Walden counsel Laurence Armstrong and the mode and location of hearing (i.e., in-person, by Zoom or hybrid).
[17] I had indicated that I believed that the parties might be able to come to an arrangement by way of agreed fact and/or joint submission that the Tribunal would not draw an adverse inference from the failure of parties to call Mr. Armstrong or Ms. Marchildon who negotiated the MOA to testify about the intent of the parties to the MOA. If there was no agreement and the Group still intended to call Mr. Armstrong, per my Ruling in 2018 CHRT 20, the Group would need to provide notice to all the Walden parties and Mr. Armstrong and allow them the opportunity to make submissions regarding the lifting of settlement privilege. I set tight timelines at the September 20, 2022 CMCC given the 3-week hearing was scheduled to commence November 28, 2022. The parties eventually negotiated an agreement and Mr. Armstrong was removed from the Group’s witness list.
[18] The pre-hearing case management proceeded in preparation for the November 28, 2022 scheduled hearing. Updated witness lists/will-says and disclosure took place. The Respondent had agreed to take carriage of preparing a Joint Book of Documents (intended exhibits) with the assistance of Mr. Brenton. The Joint Book (of under 400 documents) was never filed as the Group had removed itself from the pre-hearing process and brought a motion for recusal and adjournment on November 7, 2022 instead.
IV. VRCM Group’s Instant Motion for Recusal and Adjournment [19] On October 20, 2022 I denied the Group’s request to change from a Zoom only hearing to a hybrid one (in-person, Zoom hearing). This precipitated the bringing of the motion for recusal and adjournment which the Group signalled twelve days later via its November 1, 2022 “Appeal to the Chairperson”. This will be discussed in more detail later in these Reasons.
[20] The Tribunal scheduled a further CMCC to deal with final pre-hearing matters on October 24, 2022, but was cancelled at the last minute and rescheduled for November 3, 2022. However, on November 1, 2022 the Group wrote the Tribunal Chairperson with an “appeal” of my Zoom mode-of-hearing decision. The Group alleged that I was unfair and biased toward them and had a perceived conflict of interest. The Group wanted the Chairperson to override my decision, have me replaced as the presiding member and an adjournment granted. The Chairperson wrote back the following day indicating that she did not have such authority and that the proper procedure was for the Group to raise the issue before the presiding member. (The Tribunal had advised the Group, via its representatives, of the proper protocol/procedure for raising issues of unfairness/bias over a year earlier in the Tribunal’s correspondence of October 4, 2021.)
[21] The Tribunal advised the parties that it wanted to hold a CMCC to prepare for the hearing, deal with some outstanding case management matters and address the Group’s November 1, 2022 “Appeal to the Chairperson" and adjournment request. Also included on the Agenda was to set a time for a practice run-through session with everyone using Zoom, as had been agreed to earlier by the parties at the June 6, 2022 CMCC, and the matter of the settlement privileged “remedy chart” document that I had inadvertently seen.
[22] During the November 3, 2022 CMCC the Tribunal dealt only with the Group’s “Appeal to the Chairperson” and adjournment request. The other Agenda items were deferred. The next CMCC would take place on November 7, 2022 during which “filing deadlines for the recusal and adjournment motion will be determined, as well as setting a date for the next CMCC to discuss the remaining items in the agenda for the November 3, 2022 CMCC.”
[23] At this point, no adjournment of the upcoming hearing had been granted and the preparation for the November 21, 2022 hearing was continuing in tandem with the motion for recusal and adjournment. Mr. Brenton agreed to attend the November 7, 2022 CMCC, but changed his mind, as I read his five emails (sent to the Tribunal since the close of business on Friday) sixteen minutes before the start of the Monday, November 7th CMCC. The Group’s representative would not be participating. One of his emails asked the Tribunal to treat the Group’s November 1, 2022 “Appeal to the Chairperson” document as the Group’s Notice of Motion and primary submissions for its recusal and adjournment motion. The CMCC went ahead (with a written summary and audio recording provided to the Group).
[24] I set filing deadlines for a response and reply, ending November 16, 2022. (The Canadian Human Rights Commission was not participating in the Eligible Work hearing and did not file submissions in the recusal and adjournment motion.) The CMCC summary letter states that I said that I would make “best efforts” to render a ruling on the motion with reasons (or with written reasons to follow “in due course”) by the Friday before the Monday, November 21st hearing was to commence. I also granted an extension for Ms. Marchildon to see if Mr. Brenton would finalize the parties’ Joint Book of Documents (intended exhibits).
[25] What transpired thereafter was that there was a technical problem resulting in the Respondent’s motion materials (submissions and authorities) having been sent, but not received by the Tribunal Registry (and I assumed the Group too) by the November 10th deadline. As a result, on November 15, 2022 the Tribunal extended the service/filing deadline for the Group’s reply submissions to November 21, 2022. Accordingly, the hearing dates for the first scheduled week of November 21 to 25, 2022 were adjourned. The CMCC summary letter stated in underlined format: “The parties are reminded that unless an adjournment is granted, the hearing will commence on November 28, 2022. The parties should continue to prepare their respective cases for the hearing accordingly.”
[26] The Group took great umbrage with the above decision, correctly pointing out that I did not seek the parties’ submissions. And the Group had filed its Reply by November 17, 2022. The Respondent had written on November 14, 2022 indicating that, “…ESDC is open to a short delay in starting the VRCM Group’s Eligible Work hearing to give the Tribunal Member the time he needs to fully consider the Group’s recusal motion.” Mr. Brenton wrote further about the Group’s opposition to this Order and the Tribunal replied on November 22, 2022. I note that at no time did the Group contact the Tribunal before my extending the Reply deadline and adjourning the first hearing week to advise that the Group had indeed received the Respondent’s electronic materials by the original deadline.
[27] The partial adjournment allowed the Group an extra eleven days to prepare solely for the hearing with their work on the recusal motion completed. This is something which I thought would be welcomed given Mr. Brenton had complained about the difficulty and time-requirements in preparing the recusal motion and the hearing at the same time. Finally, the filing extension and partial adjournment gave me the necessary extra time to read and contemplate the submissions and case law in a very serious motion. This enabled me to render a ruling on November 24, 2022 (with reasons to follow) on the motion for recusal and adjournment. (As indicated earlier, the Group chose to withdraw their Eligible Work motion on November 25, 2022 and I then adjourned the hearing scheduled to commence November 28, 2022.)
V. Issues [28] The Tribunal deals with the following issues:
Has the Group waived its right to file a motion for recusal; If not, has the Group demonstrated a reasonable apprehension of bias or perceived conflict of interest on my part such that I am required to recuse myself; Is the November 4, 2022 email in question from Mr. Brenton privileged; and Should the hearing dates scheduled to begin November 28, 2022 be adjourned?
VI. Legal Principles [29] I have reviewed the submissions and case law provided by the parties. In particular, I rely on and apply the legal principles as canvassed in the well reasoned ruling on a recusal motion for bias from Member Gaudreault in Constantinescu v. Correctional Service Canada, 2020 CHRT 3.
A. Waiver [30] “Waiver” is a longstanding common law concept whereby if a party does not raise an objection of bias at the earliest opportunity, it voluntarily waives the right to raise it at a subsequent time. The idea is to discourage a party from “holding in reserve” or collecting objections/allegations as to a decision-maker’s bias during the proceeding. It can be considered an abusive tactic. When bias is not raised at the earliest opportunity or immediately as to when the party was aware or objectively ought to have been aware, the genuineness of the apprehension of bias is thus called into question: Constantinescu, supra, at paras. 10 and 33; and Eckervogt v. British Columbia, 2004 BCCA 398, at para. 48. The lack of diligent action by a party may be deemed as acquiescence by same party to the continuation of the proceeding.
B. Apprehension of Bias [31] Bias allegations are very serious and go to the heart of the public’s confidence in not just the decision-maker or court/tribunal in question, but the broader administration of justice. Such allegations can have serious reputational implications for the court or tribunal (and the decision-maker) and thus should not be used as a litigation strategy or treated lightly by the party: Hennessey v. Canada, 2016 FCA 180. Thus, said allegations demand the party prove substantive and substantial grounds and raise them at the earliest opportunity.
[32] Judges/adjudicators must perform their duties without bias or prejudice and must also be perceived to do so: Wewaykum v. Canada, 2003 SCC 45, at paras. 57-58. “The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind.”: Ibid., at para. 58.
[33] A member of the Tribunal is presumed to be acting impartially in the exercise of his/her quasi-judicial function until proved otherwise: Assoc. des employeurs maritimes v. Syndicat des debardeurs, section locale 375, 2020 FCA 29, at para. 5.
[34] In addition, as stated in Constantinescu, supra, at para. 75: “[W]hen it comes to recusal, given the strong presumption of impartiality in favour of decision-makers, including those of administrative tribunals, an error, even reviewable, is not sufficient to support a reasonable apprehension of bias. More is needed to meet this heavy burden of proof; the error should not be confused with bias [cases cited].”
[35] The Supreme Court of Canada set out the test for establishing that a decision-maker recuse himself/herself due to a reasonable apprehension of bias as: what would an informed person, viewing the matter realistically and practically conclude? The grounds must be substantial: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95. And a high onus rests on the party asserting it: Cojocaru v. B.C. Women’s Hospital and Health Centre, [2013] 2 S.C.R. 357, at para. 22; and Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2.
VII. Parties’ Positions [36] The VRCM Group alleges that “over these many years, a number of issues/requests, etc. have resulted in what we feel are the ongoing and unfair treatment by Member Garfield since 2014…” toward the Group. Near the top of page 1 of the November 1, 2022 deemed initial/primary submissions on the recusal motion, the Group enumerates that it wishes to “appeal” the Tribunal’s recent decision that “…unfairly denied our request for a hybrid hearing (part in person, part zoom).” Mr. Brenton at the bottom of page 1 of the Group’s submissions writes: “I will begin by discussing our request for a hybrid hearing and the negative impact of Member Garfield’s decision to my ability to conduct our case.” The Group claims this was “only the most recent of a number of unfair decisions by the Member against our group going back to 2014 when we filed our Initial Motion at the CHRT.”
[37] As will be analyzed later, my decision to hold the hearing via Zoom was the catalyst or fuse that brought about this recusal motion for bias and adjournment. It is also the first of the eight clusters of bias allegations outlined in their submissions. This was highlighted by the following Group submission: “Only after his [Mr. Brenton’s] own experiences regarding Member Garfield’s unfair treatment since becoming lead, especially the Member’s denial of our request for a hybrid hearing making it impossible for him to conduct the hearing to the best of his ability, did he, with the support of the group, reluctantly file a recusal motion.”
[38] The Group also wrote: “…this history of unfairness is an indication of Member Garfield’s long held bias in favour of the Government of Canada and its lead counsel in our case, Lynn Marchildon, and against our unrepresented group.” And further: “…we only know that a number of Member Garfield’s rulings and unsupportive behaviour over the years indicate to us that there is a pattern of unfairness that has led to such a conclusion.” The Group further avers: “Lastly, I will discuss what seems to be, at the very least, an appearance of a conflict of interest in reference to Member Garfield’s involvement in our case, or potentially any CHRT case, where the Government of Canada is a Respondent.”
[39] The Respondent opposes the motion for recusal and adjournment. It argues that the allegations do not meet the high onus of the legal test for recusal based on reasonable apprehension of bias. Rather, ESDC states the Group’s motion “attacks Tribunal decisions made years ago, the proper recourse for which was an application for judicial review challenging the decisions, not an allegation of bias.” It also argues that the Tribunal’s October 20, 2022 decision to hold the hearing via Zoom was a reasonable one and highlighted the assistive measures I ordered for Mr. Brenton in St. John’s, Nfld. to address “his concerns about the technical challenges of a remote hearing.”
[40] The Respondent further wrote:
At best, the Group’s bias allegations reflect a misunderstanding of the Tribunal’s role in adjudicating their motion. At worst, the Group’s allegations of the Tribunal’s unfair treatment, bias and conflict of interest comes perilously close to an abuse of process. Over the course of their eight-year motion, and as set out in the Group’s 18-page motion for adjournment and recusal, the Group has accused ESDC and its counsel of extortion, threats, professional misconduct and off-line communication with the Tribunal all in effort to force ESDC to abandon the hearing and pay the Group members pursuant to the settlement.
[41] The Respondent also submits that no real or perceived conflict exists from my consultant work for CIRNA. This was a contract from 2011-18 to my company, ADR Synergy Inc., for services rendered as an Adjudicator of claims of abuse brought by former Indian Residential School students. Counsel writes: “[Part-time] Tribunal members are often employed in other companies and workplaces and continue to carry out their duties as administrative decision-makers simultaneously.” ESDC also avers that the Group became aware of this contract “in the early years of its motion [2016]” yet decided not to raise it until November 1, 2022, six years later. This again calls “into question the genuineness of its claims of an apprehension of bias on the part of the Tribunal Member.”
VIII. Evidentiary Issue: November 4, 2022 Email [42] On November 7, 2022, Mr. Brenton sent an email to Ms. Marchildon (and copied to the Tribunal and Commission) asking that an email inadvertently sent earlier by him (meant for a member of his Group) but accidentally sent to the Tribunal and the other parties, be deleted. He was alerted to this error by Ms. Marchildon. Upon becoming aware of this, he quickly responded.
[43] The dispute lies in the fact that Ms. Marchildon wished for the Tribunal to read the matter as she argues it was “highly relevant” to the present motion and in a damaging way to the Group’s motives, showing that “the Group’s objectives extend further than just an adjournment and include forcing ESDC into mediation to settle their claim.” Respondent counsel submits this shows bad faith on the part of the Group:
This strategy is consistent with a pattern of conduct by Mr. Goodwin whereby, rather than accepting that the only way to conclude the Group’s motion is through a Tribunal hearing, the Group continues to look for ways to circumvent that requirement. Until now, the Group has focused most of their unfairness allegations against ESDC and its counsel. Now they are turning their focus to the Tribunal itself, with the hope that the infinite delay caused by the appointment of a new Tribunal Member will once again force ESDC into settling their claim.
The Respondent submits that the email in question is not litigation privileged.
[44] The Group strongly opposed the Tribunal admitting this email into evidence on the motion, arguing that it is protected by solicitor-client privilege, specifically legal advice privilege, notwithstanding that Mr. Brenton is neither a lawyer nor a licensed paralegal: Chancey v. Dharmadi (2007), 86 O.R. (3d) 612 (S.C.J.). The Group even submitted that I not even read it and that Respondent counsel’s written submissions identifying the nature of the email itself is improperly before me.
[45] I ordered the email sealed on November 7, 2022, and upon considering the submissions, when I dismissed the motion for recusal and adjournment on November 24, 2022, I also extended the sealing Order, making it permanent and ordered the Respondent and Commission to delete their copy. I also decided that it was not necessary for me to read the email’s actual content, although it would have been open to me to do so: M.(A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 39. I relied on the submissions of the parties, including the description, characterization and nature of the email in dispute.
[46] Having reviewed the case law, I am satisfied that the email, while perhaps relevant, is nonetheless protected by the litigation privilege. Specifically, that the written communication between Mr. Brenton as the non-lawyer representative to one of the members of the Group falls within the class of privilege called litigation privilege. In addition, the leading case on litigation privilege makes it clear that Mr. Brenton not being a lawyer is irrelevant: Blank v. Canada (Minister of Justice), 2006 SCC 39. Unlike the solicitor-client privilege, the litigation privilege arises and operates even in the absence of a solicitor-client relationship, and it applies indiscriminately to all litigants, whether or not they are represented by counsel: see Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407.
[47] I find that the “litigation avoidance” focus of the email based on the Respondent’s submissions may be considered as a type of litigation strategy. I also find that no exceptions to privilege are applicable here, nor does the inadvertent disclosure constitute a waiver or vitiate the protection of privilege.
IX. Analysis: The Eight Allegations [48] The Group has enumerated a cluster of eight allegations. I will address and make findings regarding major allegations, but not address every argument and its minutiae. I adopt Member Gaudreault’s approach in Constantinescu, supra, at para. 54: “For the sake of efficiency and brevity, and as several of the arguments submitted are not relevant and do not assist me in deciding this motion for recusal, I will only address the arguments of the parties that I consider necessary, essential and relevant to a decision”: Turner v. Canada (Attorney General), 2012 FCA 159, at para. 40. I note that the minutiae or details may be found in the many rulings (with reasons) and orders/directions, CMCC summary letters and correspondence from the Tribunal, and submissions from the parties over the course of this Eligible Work Motion. They all form part of the Tribunal Official Record.
[49] Further to the above, it is important to also note that a recusal motion for apprehension of bias is not the proper vehicle for a de facto challenge to the Tribunal’s previous rulings and orders in the proceeding. “It is also not for me to restate the reasons for my decisions. If a party is not satisfied with a decision, it is always open to them to file an application for judicial review in the Federal Court”: Constantinescu, supra, at para. 76.
[50] In addition, it is important to appreciate that even if there is a reviewable error, that is not enough necessarily to demonstrate bias. As is discussed in this Ruling, I find the principal arguments of the Group in this bias-recusal motion focus mainly on the outcomes of my numerous rulings, decisions, orders and directions over the course of their Eligible Work motion. I have considered the other grounds of complaint, including the alleged appearance of a conflict of interest.
[51] Please note that I will be making findings in each of the eight clusters of allegations involving the question of waiver and on the merits. Because of the seriousness of such recusal-for-bias motion, I deem it important to analyze and make alternative findings on the merits even in those instances where I have dismissed the allegation due to a primary finding of voluntary waiver. This was also the approach taken in Constantinescu, supra, at para. 30.
A. Allegation # 1: Hybrid Hearing Request
[52] After having discussed the various options for location and mode of hearing (in-person, Zoom or a hybrid of some participating in St. John’s in-person and using Zoom, and the rest of the parties and witnesses via Zoom), the parties agreed to a Zoom-only hearing at the June 6, 2022 CMCC. However, prior to the September 20, 2022 CMCC, Mr. Brenton sent an email indicating that the Group now wished to change the mode of hearing to a hybrid (in-person/Zoom). During this CMCC we discussed this new request. Mr. Brenton stated, as reflected in the CMCC summary letter, that he felt a hybrid hearing was “the best way for him to present his case. He also indicated some technological concerns regarding his own computer and the use of the Zoom software program. He also made a request for additional equipment.” I informed the parties that post-COVID (February 2020), “Tribunal hearings by Zoom have been the norm, rather than the exception.” (Indeed, at the time of my denial of the Group’s request to change from Zoom to a hybrid hearing on October 20, 2022, all post-COVID hearings to that date had been by Zoom only, without exception.) I note that a party, may prefer, but does not have the right to demand, one technological form of a hearing over another, even if it’s on consent: Cousins v. Silbourne, 2022 ONSC 4000.
[53] The Respondent advised on October 11, 2022 that it consented to the Group’s request. Thereafter I considered the oral and written reasons/rationale put forward by Mr. Brenton along with the factors listed in the September 2022 “Chairperson’s message: In-person and virtual hearings” on the Tribunal’s website and provided to the parties. On October 20, 2022 I provided my written decision with reasons. My decision letter stated that I was satisfied that a fair and accessible hearing could be held using Zoom and that the Group would not be prejudiced.
[54] This was to be a hearing with parties and witnesses spread over six time zones, from Victoria, BC to St. John’s, NL. The mere fact of myself, the Tribunal Registry Officer, Respondent counsel and client representative, and Mr. Brenton (and one of his witnesses) being in the same room, while all other parties (14) and witnesses (13) participating remotely via Zoom vs. everyone participating remotely by Zoom, would not have made the hearing any more or less accessible or fair. Mr. Brenton’s technological concerns/unfamiliarity with Zoom were taken into consideration by me. But when those were balanced with the other considerations in my Decision, the outcome most favoured not changing from Zoom to a hybrid hearing.
[55] I also ordered accommodations to assist Mr. Brenton in addressing some of the issues that he raised (e.g., technological, home setup/environment not conducive, etc.), even though this was not a disability accommodation request under the CHRA. For example, I ordered: a suitable conference room in St. John’s be provided for Mr. Brenton to attend with Wi-Fi/internet connection; and a laptop rented for him to use. (He also could have had a paper copy of the Joint Book of Documents (intended exhibits) for c