Gardaworld Cash Services Canada Corporation v. Smith

Gardaworld Cash Services Canada Corporation v. Smith
Court (s) Database
Federal Court Decisions
Date
2020-12-02
Neutral citation
2020 FC 1108
File numbers
T-162-20
Decision Content
Date: 20201202
Docket: T-162-20
Citation: 2020 FC 1108
Ottawa, Ontario, December 2, 2020
PRESENT: Mr. Justice Sébastien Grammond
BETWEEN:
GARDAWORLD CASH SERVICES CANADA CORPORATION
Applicant
and
DEAN A. SMITH
Respondent
JUDGMENT AND REASONS
[1] GardaWorld Cash Services Canada Corporation [Garda] terminated Mr. Smith, one of its employees who headed its branch in Red Deer, Alberta. Mr. Smith initiated a complaint for unjust dismissal under the Canada Labour Code, RSC 1985, c L-2 [the Code]. After protracted proceedings, which included the issuance and retraction of a first decision, the adjudicator found that Mr. Smith’s dismissal was unjust, ordered Garda to pay approximately $60,000 in damages, as well as $500,000 in punitive damages.
[2] Garda now applies for judicial review of the adjudicator’s decision. It argues that the decision is unreasonable on the merits and that the adjudicator breached procedural fairness and showed a reasonable apprehension of bias. I agree that the adjudicator’s private communications with Mr. Smith, conduct towards Garda’s counsel and comments about witnesses give rise to a reasonable apprehension of bias. Thus, the adjudicator’s decision must be quashed. However, I decline Garda’s invitation to rule on the merits of the complaint myself. The matter must be sent back to a different adjudicator for redetermination.
[3] Although the parties filed a considerable volume of evidence and made wide-ranging submissions, I will confine myself to the issue of bias, which is sufficient to dispose of the case, and I will say as little as possible about the merits. These reasons are organized as follows. I first give an account of the incident that led to Mr. Smith’s termination. I describe the main steps of the proceedings before the adjudicator. I then show why several aspects of the adjudicator’s conduct gave rise to a reasonable apprehension of bias.
I. Factual Background
[4] On July 10, 2017, Mr. Smith attended the Sobeys liquor store in Sylvan Lake. He wore his uniform and was ostensibly on duty. He explained to the store’s manager that he thought he had lost a piece of identification while shopping at the store a few days earlier and asked for an opportunity to look at the recordings of the store’s CCTV camera system. Even though the manager had not found any lost ID, she agreed to Mr. Smith’s request.
[5] Mr. Smith found images of himself waiting in line to pay at the cash. He asked for permission to take pictures of these images on his smartphone, to be able to enlarge them later. He is not alone on the pictures he took. Another woman appears in front of him at the cash. This woman is a social worker with the Alberta Ministry of Children’s Services. One of the cases assigned to her relates to the son of Ms. Opal Roszell, who is Mr. Smith’s tenant and, according to Garda, his girlfriend. Mr. Smith admits that he knows who the social worker is and that he recognized her on that occasion.
[6] On July 14, 2017, Ms. Roszell transmitted a complaint to Alberta’s Children’s Services Minister, alleging that the social worker had an alcohol consumption problem. The complaint contained information about the social worker apparently retrieved from the Internet, including personal information and various pictures appearing on social media showing the social worker partying with friends. It also included two pictures taken by Mr. Smith from the Sobeys CCTV footage, showing the social worker buying alcohol. Mr. Smith himself can be seen on one of the pictures.
[7] The social worker called the RCMP, as she was concerned for her own safety. She identified the man standing besides her on one of the pictures as Ms. Rozsell’s boyfriend. After speaking with Sobeys’s store manager, the RCMP officer who investigated the matter concluded that no criminal offence was committed, but found it appropriate to disclose the situation to Garda and Sobeys. On July 20, 2017, Sobeys wrote to Garda to complain about the incident and to request that Mr. Smith not be dispatched to Sobeys stores.
[8] On July 21, 2017, Garda executives interviewed Mr. Smith regarding the Sobeys incident. Their notes show that Mr. Smith explained that he was simply seeking to find his lost piece of identification and that he sent the pictures to his girlfriend, who had a phone with a wider screen, to be able to enlarge the pictures. Mr. Smith was immediately suspended from road duties. Mr. Smith was interviewed again by Garda’s corporate security investigator on July 25. He was terminated on August 14.
[9] Some aspects of these events are in dispute or have been the subject of contradictory evidence before the adjudicator. Mr. Smith now asserts that a number of statements attributed to him in Garda’s notes of the interviews are false. Notably, he denies sending the pictures to Ms. Roszell, who testified that she may have had access to them because her tablet was synchronized with Mr. Smith’s smartphone. Ms. Roszell initially denied sending the complaint to the Ministry of Children’s Services, but later recanted her testimony and admitted doing so. Mr. Smith and Ms. Roszell deny that they are in a romantic relationship; rather, Ms. Roszell would simply be renting a room in Mr. Smith’s house.
II. Proceedings Before the Adjudicator
[10] Mr. Smith made a complaint for unjust dismissal and requested the appointment of an adjudicator pursuant to the Code. After significant delays, a hearing took place on April 3 and 4, 2019. At that hearing, Garda called as witnesses its two executives who interviewed Mr. Smith before his termination. Mr. Smith, who was not represented by a lawyer, called three current or former Garda employees and testified himself. Garda argued that Mr. Smith was a “manager” who cannot bring a complaint for unjust dismissal, given subsection 167(3) of the Code, and that, in any event, his termination was justified, mainly because of the Sobeys incident and his refusal to be forthcoming about what really took place.
[11] At the close of the April hearing, the adjudicator left open the possibility of reconvening a further hearing. After the hearing, both parties communicated by email with the adjudicator, without immediately copying each other. For example, Mr. Smith sent written submissions on April 20, and Garda on June 3. In both cases, the adjudicator forwarded the email to the other party.
[12] From June 21 to July 16, however, the adjudicator engaged in a series of email exchanges with Mr. Smith, unbeknownst to Garda. In these exchanges, the adjudicator solicited information from Mr. Smith regarding two main subjects: his status as a manager and his claim for damages. Mr. Smith took the opportunity of these exchanges to reiterate allegations of bad faith against Garda and to inform the adjudicator that a number of Garda employees, including one who testified at the hearing, had been terminated. These exchanges are analyzed in more detail below.
[13] Moreover, on June 26, after reaching the conclusion that Mr. Smith had been unjustly dismissed, the adjudicator sought the help of the firm Economica Ltd. to calculate damages. He mentioned this to Mr. Smith, but not to Garda.
[14] On July 18, 2019, the adjudicator issued a 45-page decision that fully sided with Mr. Smith. The adjudicator’s reasons are poorly structured and difficult to follow. He reached the conclusion that Mr. Smith was not a manager and was terminated without cause. He found that Garda acted in “bad faith” and treated Mr. Smith in a “premeditated, careless and callous manner.” While this conclusion is not explicitly justified, the recurring theme throughout the decision is that Garda invented crucial aspects of the Sobeys incident to be able to terminate Mr. Smith without providing notice, as part of a campaign to reduce Garda’s operating costs. Thus, the adjudicator suggests, at several places in his reasons, that Garda’s witnesses were not credible and that “an inference may be drawn that Garda was looking for additional reasons for dismissal” (p 27; see also pp 8, 11). He went as far as suggesting that the RCMP officer acted improperly at the behest of Garda’s management (p 27) and doubting that Ms. Roszell ever sent a complaint about the social to the Ministry of Children’s Services (p 9).
[15] As Economica Ltd. had not yet provided its calculation of the damages, the adjudicator retained jurisdiction. Nevertheless, he ordered the immediate payment of a sum of $13,779, to compensate Mr. Smith for various expenses incurred after his termination, as well as a sum of $2,000 intended to pay for the publication of a notice of the award.
[16] On July 31, 2019, Garda wrote to the adjudicator to express its concerns with the July 18 decision. It asserted that the decision was based on a number of erroneous findings of fact. It appended a “can say” statement from the RCMP officer who investigated the Sobeys incident, as well as pictures taken from the Internet that could suggest that Mr. Smith and Ms. Roszell were involved in a romantic relationship. Moreover, Garda noted that several findings were based on emails from Mr. Smith that were never provided to Garda. It also argued that the award of costs was unsupportable at law. For all these reasons, Garda asked the adjudicator to retract his July 18 decision.
[17] On August 1, the adjudicator agreed to retract his decision, forward a copy of his email exchanges with Mr. Smith to Garda’s counsel and reconvene a hearing. Over the following days, he forwarded most, but not all, communications he had with Mr. Smith in June and July.
[18] On August 16, the adjudicator sent three long emails to Garda’s counsel, disputing most of the claims made in the July 31 letter. Lengthy exchanges followed, mainly between the adjudicator and Garda’s counsel, as to the scheduling of this new hearing. Garda initially sought to have 20 witnesses testify at that new hearing. The adjudicator strongly reacted to what he considered an abusive stance. This led to heated exchanges that are further analyzed below.
[19] The second hearing took place on November 7. Mr. Smith testified and was cross-examined, but left immediately afterwards given his work schedule. Garda called four witnesses: two of its executives, the RCMP officer and a representative from the Ministry of Children’s Services. The adjudicator also received sworn statements from Mr. Smith and Ms. Roszell.
[20] The adjudicator, the parties and Ms. Roszell kept communicating with each other by email over the following weeks. Garda’s counsel objected to the fact that these emails constituted unsworn evidence. As a result, the adjudicator asked Mr. Smith, Ms. Roszell and another witness to provide further sworn statements.
[21] The adjudicator issued his decision on January 29, 2020. The decision is 61 pages long and once again, it is poorly organized and difficult to follow. Although the adjudicator mentions the evidence given at the second hearing, his main findings are substantially the same as in his first decision. In reviewing the evidence, the adjudicator criticizes everything that does not conform to Mr. Smith’s version of events. While he acknowledges that Ms. Roszell admitted sending the complaint to the Ministry of Children’s Services after denying doing so, he apparently believes her explanation that she gained access to the pictures taken by Mr. Smith at Sobeys through a common iCloud account. The following two paragraphs (at p 39) appear to summarize his views:
Reflecting on the evidence and various testimonies, the Adjudicator is of the opinion that, on a balance of probabilities, the examination of the Sobeys CCTV by the Complainant was not an unauthorized extraordinary event (that occurred on this single instance) warranting termination of his employment for cause. Such examination was probably only regarded as serious because Sobeys expressed concern. It is hard to understand how the rather incomplete can say information provided by the RCMP officer happened to coincide with [Garda’s general manager’s] misleading and distorted interpretation of the circumstances. While difficult to understand, the Adjudicator feels the officer’s uninvestigated can say suggestion of July 19, 2019 as quoted before: “I concluded that the most probable version of events is that Dean Smith fabricated that he wanted pictures of his lost ID in order to obtain pictures of [the social worker] purchasing liquor...” must have contributed to or fitted in with the misleading circumstances portrayed by Garda.
Consequently, the Adjudicator is of the view, on a balance of probabilities, based on the evidence and in the context of a campaign to reduce head count, it was expedient for Garda to terminate the employment of the Complainant, Smith, even for cause.
[22] The adjudicator condemned Garda to pay Mr. Smith damages in the amount calculated by Economica Ltd, that is, $62,278. In addition, he condemned Garda to pay $500,000 in punitive damages.
[23] Garda is now seeking judicial review of this decision.
III. Analysis
[24] Garda challenges the adjudicator’s second decision on three main grounds: it is unreasonable on the merits, the adjudicator breached procedural fairness and his conduct raises a reasonable apprehension of bias. These grounds are intertwined to a certain extent, as Garda’s allegations regarding apprehension of bias rely on its criticism of the decision and on events that would also be procedurally unfair.
[25] I conclude that the adjudicator’s conduct raises a reasonable apprehension of bias. I reach this conclusion without reviewing the substance of the adjudicator’s decision. Likewise, I do not need to review allegations of procedural unfairness beyond those related to bias. The matter will be remitted to a different adjudicator for a new decision. As I do not pronounce on the substance of the dispute, the new adjudicator will be free to take a fresh look at the matter, unconstrained by previous pronouncements.
A. Reasonable Apprehension of Bias
[26] Disagreement among members of our society is inevitable. Yet, to achieve social peace and a sense of justice, we must at least be able to agree on a process to settle legal disputes. This is the role of courts and administrative decision-makers. But for people to agree to submit their disputes to the courts and respect their decisions, they must consider that courts are impartial, not biased. No one would have confidence in the administration of justice if judges were biased.
[27] Thus, impartiality inheres in the adjudicative role. As the symbol of a blindfolded woman holding the scales of justice suggests, judges and other decision-makers must not favour one party at the expense of the other. They must approach cases with an open mind and be ready to be convinced by each party’s evidence and arguments. They must not have an interest in the case or prejudice towards one party. Indeed, the public “expects judges to undertake an open-minded, carefully considered, and dispassionately deliberate investigation of the complicated reality of each case before them:” R v S (RD), [1997] 3 SCR 484 at paragraph 40.
[28] The adjudicator in this case did not meet this standard. Several aspects of his conduct give rise to a reasonable apprehension of bias. The ex parte communications show that he took up the role of an advocate for Mr. Smith. He showed antipathy towards Garda’s counsel. He made remarks that were systematically favourable to Mr. Smith’s witnesses and unfavourable to Garda’s. The sequence of events leading to the award of punitive damages leads a reasonable observer to conclude that this award was made in retaliation for Garda’s challenge to his first decision.
[29] To explain why I reach these conclusions, I first lay out the general principles guiding the analysis of allegations of reasonable apprehension of bias. I then examine each aspect of the adjudicator’s conduct that contributes to creating such an apprehension.
(1) Legal Principles
[30] The impartiality of judges and administrative decision-makers is guaranteed by several constitutional and statutory sources, as well as the common law. I need not examine the written sources here, as this case may be settled by the rules of the common law. Case law has established general principles to ascertain whether a judge is impartial. After setting out these principles, I address how their application must take into account two specific aspects of this case, namely, that the adjudicator is not a judge but an administrative decision-maker and that Mr. Smith is self-represented.
[31] As mentioned above, impartiality is pivotal to ensure that parties accept the judicial process and its outcome. To achieve this, however, the process must not only be fair but also perceived to be fair, if not by the parties themselves, at least by reasonable observers who take a close look at the situation. Thus, we approach allegations of bias not by inquiring into the judge’s actual state of mind, but by asking whether the circumstances give rise to a reasonable apprehension of bias. According to a long line of cases, allegations of bias must be assessed from the perspective of a reasonable observer who takes all the facts into careful consideration: Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369 at 394.
[32] There is a high threshold for proving a reasonable apprehension of bias, as judges are presumed to be impartial: Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at paragraphs 14-22, [2013] 2 SCR 357; Yukon Francophone School Board, at paragraph 25; Oleynik v Canada (Attorney General), 2020 FCA 5 at paragraph 57 [Oleynik]. Indeed, respect for the administration of justice would be undermined if litigants made allegations of bias in a careless fashion or if judges were disqualified without solid grounds.
[33] Like judges, administrative decision-makers must be impartial. Administrative decision-makers, however, exercise a broad range of functions, ranging from adjudication of disputes to broad policy-making decisions. Thus, the requirement of impartiality must be calibrated by reviewing the nature and characteristics of the decision-maker, as well as the relevant statutory regime: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paragraph 47 [Baker]. The Supreme Court of Canada provided the following explanation in Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36 at paragraph 21, [2003] 1 SCR 884:
… administrative tribunals perform a variety of functions, and “may be seen as spanning the constitutional divide between the executive and judicial branches of government” […]. Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of, particular government policies. Such tribunals may require little by way of procedural protections. Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers may bring with them stringent requirements of procedural fairness, including a higher requirement of independence.
[34] Adjudicators under the Code are close to the judicial end of this spectrum. Our Court requires them to be impartial and relies on the principles regarding the impartiality of judges to assess whether there is a reasonable apprehension of bias: Bank of Montreal v Brown, 2006 FC 503; Bank of Montreal v Payne, 2012 FC 431 at paragraphs 51-52, reversed on other grounds, 2013 FCA 33; Rafizadeh v Toronto Dominion Bank, 2013 FC 781, at paragraphs 15 and 16.
[35] Nevertheless, procedure before administrative decision-makers is flexible and is not required to mirror the judicial process. One of the reasons for entrusting large areas of the law to administrative decision-makers is to allow for a process that is simpler, more flexible and more accessible than that of the courts. Thus, a reviewing court should not find bias simply because a decision-maker adopts a process that differs, in some respects, from that followed by courts. In particular, adjudicators under the Code do not show bias simply by acting differently than courts in some respects, for example by engaging in mediation: Skinner v Fedex Ground Ltd, 2014 FC 426.
[36] The fact that Mr. Smith is self-represented is also relevant to the bias issue. Self-represented litigants face significant disadvantages when they bring their cases to court. They are often unfamiliar with the judicial process and the substantive law. Judges and administrative decision-makers increasingly recognize that they should provide information and assistance to self-represented litigants, to help them understand the process. There is also a growing acceptance of the need to transform the judicial or administrative process to make it more accessible for self-represented litigants, for example through what is known as “active adjudication.” These practices do not give rise, in and of themselves, to a reasonable apprehension of bias: Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons, September 2006, endorsed by the Supreme Court of Canada in Pintea v Jonhs, 2017 SCC 23, at paragraph 4, [2017] 1 SCR 470; see also Michelle Flaherty, “Self-Represented Litigants, Active Adjudication and the Perception of Bias: Issues in Administrative Law” (2015) 38 Dalhousie LJ 119; Jula Hughes and Philip Bryden, “Implications of Case Management and Active Adjudication for Judicial Disqualification” (2017) 54 Alberta L Rev 849. Yet, the requirement of impartiality remains and the judge or decision-maker “must carefully walk the line between being of assistance to [self-represented] litigants and becoming their advocate:” Malton v Attia, 2016 ABCA 130, at paragraph 3. A detailed review of the facts of this case shows that the adjudicator crossed that line.
[37] Various kinds of situations may give rise to a reasonable apprehension of bias: for a survey, see Philip Bryden, “Legal Principles Governing the Disqualification of Judges” (2003) 82 Can Bar Rev 555. In this case, the allegations of bias are based on the adjudicator’s statements or conduct during the course of the proceedings. The case law provides examples of conduct that gives rise to a reasonable apprehension of bias, including the decision-maker’s public statements regarding the outcome of the case (Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623 [Newfoundland Telephone]), private communications with one party or its counsel (Hunt v The Owners, Strata Plan LMS 2556, 2018 BCCA 159 [Hunt]; Setlur (Attorney General) v Canada, 2000 CanLII 16580 (FCA) [Setlur]) and persistent hostility towards counsel (Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at paragraph 25, [2015] 2 SCR 282 [Yukon Francophone School Board]) or a witness (Brouillard Also Known As Chatel v The Queen, [1985] 1 SCR 39). In certain circumstances, a reasonable apprehension of bias may result from comments made in the reasons for decision: Baker, at paragraph 48; Sawridge Band v Canada, [1997] 3 FC 580 (CA) [Sawridge Band].
[38] In particular, a judge should not communicate with one party about the case in the absence of the other party or, at the very least, without giving notice to the other party as soon as feasible: Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391 at paragraphs 74-75 [Tobiass]. This situation, known as an “ex parte communication,” may give rise to procedural unfairness, as the other party is deprived of the opportunity to respond: Kane v University of British Columbia, [1980] 1 SCR 1105 at 1114-1115; National Bank of Canada v Lajoie, 2007 FC 1130 at paragraphs 16-20. Quite understandably, the party excluded from the conversation may also have serious concerns about the judge’s impartiality, thus giving rise to a reasonable apprehension of bias: see, for example, Tobiass; Setlur; Ciebien v Canada (Attorney General), 2005 FC 167 at paragraphs 59-61.
[39] The rationale for this prohibition also applies to administrative decision-makers. Nevertheless, some flexibility is in order, especially where the decision-maker is not assisted by a registry through which communication with the parties may be channelled. In these circumstances, communications pertaining to purely administrative or scheduling matters do not give rise to procedural unfairness or an apprehension of bias: Grey v Whitefish Lake First Nation, 2020 FC 949 at paragraphs 44-51. Likewise, where a party, especially a self-represented one, sends information to the decision-maker without providing a copy to the other party, no harm is done if the decision-maker immediately forwards the communication to the other party: GRK Fasteners v Leland Industries Inc, 2006 FCA 118 at paragraph 17; see also Opaskwayak Cree Nation v Booth, 2009 FC 225 at paragraphs 55-59, aff’d 2010 FCA 299.
(2) Ex parte communications with Mr. Smith
[40] The first problematic aspect of the adjudicator’s conduct is his ex parte communications with Mr. Smith. These communications did not pertain to purely administrative matters and did not simply deprive Garda of the opportunity to respond. Rather, they show that the adjudicator had made up his mind on several crucial issues without the necessary evidence and was seeking additional facts from Mr. Smith to buttress his conclusions. They also show, more generally, that the adjudicator was prepared to give advice to Mr. Smith (and to his witness Ms. Roszell) to help him present his case. He also shared his preliminary findings with Mr. Smith, but not with Garda’s counsel. Thus, one could reasonably conclude that the adjudicator viewed his role as that of an advocate for Mr. Smith rather than a neutral decision-maker. As a result, the adjudicator’s conduct gives rise to a reasonable apprehension of bias.
[41] A first ex parte communication took place on June 7, 2019. On that date, Mr. Smith sent an email to the adjudicator about the termination of certain Garda employees. The adjudicator forwarded the email to Garda’s counsel. This, however, was not the end of the conversation. The next day, Mr. Smith emailed again (Applicant’s Record [AR] at 550), making the point that the termination of one of these employees (Mr. Dan Smith, not to be confused with the respondent Mr. Smith), who had testified for Garda at the hearing, tended to show that the Sobeys incident was merely a pretense for terminating his own employment for cost reduction purposes. He wrote:
And the termination of Dan Micheal Smith is suspicious to say the least. […] Dan was cost cutting and lied! […] He lied, in attempt to come up with a reason not to pay me severance to cut cost. Rumor has it they are letting go of all senior staff for overhead reasons for the purpose of sale.
[42] The adjudicator’s initial reaction to this email, conveyed the same day, was to tell Mr. Smith to “focus on your own complaint only and not pursue the firings mentioned by you” (AR at 553). Nevertheless, the adjudicator became increasingly interested in the idea that the true motive for Mr. Smith’s termination was the reduction of Garda’s operating costs.
[43] The most important series of ex parte communications begins on June 20, 2019. On that date, without giving notice to Garda’s counsel, the adjudicator sent Mr. Smith a long list of questions pertaining to the “manager issue,” to the use of Garda vehicles and fuel cards and to the damages Mr. Smith was seeking. Mr. Smith responded the next day (AR at 557-563). The adjudicator replied the same day with further questions on the same subjects as well as the Sobeys incident. On June 24, the adjudicator asked another round of questions and suggested to Mr. Smith that he claim his expenses associated with the hearing. The adjudicator noted:
I can see that my queries are somewhat endless and are going around in circles. I am trying to understand the extent of control Garda Calgary may have had over your working day. (AR at 573)
[44] On June 25, the adjudicator emailed Mr. Smith, telling him that he had reached the conclusion that Garda had no just cause for his termination and that the remaining issue was what reasonable notice had to be paid. He asked him to prepare calculations based on 3, 6 and 12 months of notice (AR at 579-580). Mr. Smith responded later the same day with a schedule of various heads of damages totalling a little more than $1 million (AR at 585-588). On June 26, the adjudicator responded with some comments and mentioned that he intended to hire an accountant (AR at 594). Mr. Smith and the adjudicator exchanged several emails on that day.
[45] On July 4, the adjudicator wrote again to Mr. Smith to ask another series of questions about the Sobeys incident and his termination, as well as the “manager issue” (AR at 622-627). Mr. Smith answered the same day, and provided additional answers and a statement of expenses the next day and the day after (AR at 628-637). On July 5, the adjudicator also asked additional questions about the “manager issue,” the Sobeys incident and his termination. The adjudicator wrote again to Mr. Smith on July 11 and 12, asking questions pertaining mostly to his termination, Garda’s motives and damages (AR at 645-649).
[46] On July 16, two days before issuing his first decision, the adjudicator sent a long list of questions to Mr. Smith, essentially asking him to confirm a number of findings of fact he intended to make regarding the Sobeys incident and his termination (AR 653-662).
[47] Thus, one can appreciate that during the first half of the month of July, the adjudicator kept looking for additional evidence and clarification on the “manager issue” and Mr. Smith’s termination, even though he had already told him on June 25 that he had concluded that he had been dismissed without cause. Yet, the adjudicator could only reach this conclusion after finding that Mr. Smith was not a manager and after considering all the evidence regarding his termination.
[48] To give rise to a reasonable apprehension of bias, it is not necessary to show the impact of the evidence conveyed through the ex parte communications. In any event, the first decision’s poor structure makes it difficult to follow the adjudicator’s reasoning and to isolate the impact of specific pieces of evidence. Nevertheless, the reasons for decision refer extensively to information provided by Mr. Smith. For example, at pages 5 and 6 of the first decision, the adjudicator quotes verbatim an answer provided by Mr. Smith on July 4 and gives a detailed summary of the July 16 email; at pages 18-24, he summarizes other answers given by Mr. Smith in late June and early July; at pages 39-41, he quotes verbatim Mr. Smith’s July 12 email regarding his financial circumstances and attempts to find new employment.
[49] Most importantly, the adjudicator did not seek Garda’s comments on the evidence he obtained from Mr. Smith. To a reasonable observer, this can only mean that the adjudicator had made up his mind in favour of Mr. Smith, sought additional evidence buttressing his conclusion and was uninterested in hearing anything that would contradict it. In other words, the adjudicator ceased acting in an impartial manner and instead became an advocate for Mr. Smith. These communications are sufficient to create a reasonable apprehension of bias. By their duration and scope, they far exceed those that led to the disqualification of the decision-maker in cases such as Setlur or Hunt. No reasonable observer would accept to submit their disputes to such a process. I would simply add that the flexibility of administrative proceedings and the willingness to help self-represented litigants do not excuse the adjudicator’s conduct. Even in an adapted form, justice must still be done in public and with both parties present.
[50] Nevertheless, Mr. Smith argues that the adjudicator also engaged in ex parte communications with Garda’s counsel, thus showing that he was not biased. To be sure, such communications took place on a few occasions. In particular, on June 7, the arbitrator asked a number of factual questions to Garda’s counsel. On July 5, she provided a response to the adjudicator alone (AR at 483), who never forwarded it to Mr. Smith. However, a review of these communications shows that the adjudicator did not embark on a systematic search for evidence favourable to Garda or anything that might evince bias against Mr. Smith. As in Setlur, the fact that the decision-maker initiated separate conversations with each party does not negate the apprehension of bias resulting from the comments made to one party during one of these conversations. Later in these reasons, I will address Mr. Smith’s argument that by writing to the adjudicator alone, Garda acquiesced to whatever communications the adjudicator had with Mr. Smith.
[51] Mr. Smith also suggests that the adjudicator acted in good faith. He knew that it was preferable not to have ex parte communications, as he initially urged Mr. Smith to copy Garda’s counsel on any correspondence sent to him (AR at 553). Forgetting to abide by this rule himself would be nothing more than an honest mistake. His mention of Mr. Smith’s emails in his first decision would show that he thought he was not doing anything wrong. However, a reasonable apprehension of bias does not depend on proof of the decision-maker’s actual state of mind. The assessment is objective. Any reasonable observer would conclude that the adjudicator seriously misunderstood his role. Moreover, the remarks he made in his second decision, which are quoted below, belie any suggestion that the adjudicator acted by mistake in engaging in ex parte communications with Mr. Smith.
(3) Hostility Towards Garda’s Counsel
[52] The adjudicator’s hostility towards Garda’s counsel also contributes to create a reasonable apprehension of bias. This hostility manifested itself mainly in the course of email exchanges taking place in August and early September 2019, after Garda’s counsel wrote a long letter criticizing the adjudicator’s first decision and the process that led to it. In these communications, the adjudicator and Garda’s counsel explored various manners of convening a second hearing or gathering new evidence. For our purposes, what matters is not the procedural decisions the adjudicator made, but the adversarial tone he adopted towards Garda’s counsel.
[53] On August 16, the adjudicator sent three long email to Garda’s counsel, essentially refuting point by point the arguments made in Garda’s July 31 letter. These emails set the general tone of the following exchanges. The adjudicator blamed Garda and its counsel for not providing the information obtained from Mr. Smith in the ex parte communications and went as far as saying that this was “dishonest” (AR at 821). He also asked Garda to provide evidence on certain matters by way of affidavits and announced his intention to hold a new hearing where several witnesses would be heard, including the RCMP officer, the social worker, Ms. Rozsell, the Sobeys employee and a representative from the Ministry of Children’s Services.
[54] On August 23, Garda’s counsel responded and added more names to the list of witnesses suggested by the adjudicator. She announced her intention to call 20 witnesses, noting that some of these were necessary to respond to allegations of fraud or bad faith. The adjudicator responded the same day, saying that five days of hearings would be needed to accommodate so many witnesses.
[55] On August 27, however, the adjudicator wrote a formal letter to Garda’s counsel, suggesting that it might not be necessary to convene a hearing in person. Rather, he asked counsel for Garda to provide affidavits from all proposed witnesses no later than September 3, that is, within seven days, including the Labour Day weekend. He also wrote that witnesses who were heard in April, or who “could or should have been called” on that occasion would not be able to testify at the new hearing. Remarkably, this applied to some of the witnesses he had himself suggested to call in his August 16 email. On August 30, Garda’s counsel replied that it would not be possible to provide the requested affidavits before September 3, that this requirement was a breach of procedural fairness and that Garda would apply for judicial review if the requirement were enforced.
[56] On September 4, the adjudicator sent an email to Garda’s counsel, containing the following statement:
Affidavits and information on various matters have previously been requested from Garda. It would seem legal counsel may have elected to ignore such requests. In the event these are not provided by 1:00 p.m. on Thursday, September 12, 2019 the Adjudicator will either deem you and your client to be in contempt of this Tribunal or seek the order of a Superior Court to issue an order holding your client, Garda, and\or legal counsel for Garda to be in contempt of this Tribunal. (AR at 850)
[57] Garda provided some of the information on September 12. The adjudicator did not take any steps to hold Garda or its counsel in contempt.
[58] In fact, blaming Garda’s counsel appears to be the adjudicator’s way of absolving himself of his procedural missteps, in particular his ex parte communications with Mr. Smith. Although this theme is frequently repeated in communications with Garda’s counsel, for example in an email sent on December 24 (AR at 1570-1572), the adjudicator’s position is clearly stated at page 12 of the second decision:
While some of this information was to a limited extent contained in the evidence previously provided, the area remained vague. As a result, without including legal counsel in his queries, the Adjudicator asked the Complainant directly for such clarification and accepted the information provided by the Complainant’s various emailed responses. These responses were not communicated to legal counsel for Garda until later.
[…]
The Adjudicator was of the strong view it was delinquent of the employer, Garda, not to volunteer in the first instance the full significance of the daily activities of the Complainant in the course of carrying out his duties and responsibilities. The non-existence of any helpful explanation of the realities of the employee’s day-to-day job seemed to leave a vacuum full of job titles. The absence of a full explanation required the Adjudicator to look into the matter further.
[59] This constant hostility towards Garda’s lawyers, in particular the threat to hold them in contempt, is similar to, if not more serious than, the conduct of the judge that gave rise to a reasonable apprehension of bias in Yukon Francophone School Board.
[60] In reaching this conclusion, I am mindful that adjudicators must be able to manage actively the proceedings before them to achieve the Code’s aim of a quick resolution of unjust dismissal complaints. In so doing, adjudicators may have to rein in lawyers who seek to lengthen proceedings for purely tactical purposes. Here, it is obvious that the adjudicator viewed Garda’s request to call 20 witnesses as excessive—he wrote that this would be tantamount to “allow[ing] a circus” (AR at 1011). He was certainly entitled to refuse to hear some of them. Nevertheless, his hostility to Garda’s counsel predated Garda’s attempt to have 20 witnesses testify and manifested itself with respect to issues other than the number of proposed witness