Iwa v. Consolidated-Bathurst Packaging Ltd.

Iwa v. Consolidated-Bathurst Packaging Ltd.
Collection
Supreme Court Judgments
Date
1990-03-15
Report
[1990] 1 SCR 282
Case number
20114
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Ontario
Subjects
Administrative law
Notes
SCC Case Information: 20114
Decision Content
IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282
Consolidated‑Bathurst Packaging Ltd. Appellant
v.
International Woodworkers
of America, Local 2‑69 Respondent
and
The Ontario Labour Relations Board Respondent
indexed as: iwa v. consolidated‑bathurst packaging ltd.
File No.: 20114.
1989: April 26; 1990: March 15.
Present: Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Administrative law -- Natural justice -- Audi alteram partem rule -- Right to know case to be made -- Three‑person panel hearing case and ultimately making decision -- Case involving important and wider policy implications ‑‑ Full Board meeting called to discuss policy implications of a draft decision ‑‑ Facts accepted as stated in draft decision -- No vote or consensus taken ‑‑ No minutes kept -- Attendance not recorded -- Whether or not breach of rules of natural justice occurred -- Labour Relations Act, R.S.O. 1980, c. 228, ss. 14, 102(9), (13), 106, 108, 114.
The Ontario Labour Relations Board ordinarily sits in panels of three when hearing applications under the Labour Relations Act. A three‑member panel decided that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close a plant. In the course of deliberating over this decision, a meeting of the full Board was held to discuss a draft of the reasons. No express statutory authority exists for this practice.
The record did not indicate how many of the Board's 48 members attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act. The members of the panel who heard the case, however, appear to have been present. The meeting was conducted in accordance with the Board's longstanding and usual practice. This practice required that discussion be limited to the policy implications of a draft decision, that the facts be accepted as contained in the decision, that no vote or consensus be taken, that no minutes be kept, and that no attendance be recorded.
Appellant applied for judicial review of the Board's decision on the ground that the rules of natural justice had been breached. The application was granted by the Divisional Court but was disallowed on appeal. At issue here was whether the two rules of natural justice had been breached: (a) that the adjudicator be independent and unbiased, that he who decides must hear, and (b) the audi alteram partem rule, the right to know the case to be met.
Held (Lamer and Sopinka JJ. dissenting): The appeal should be dismissed.
Per Wilson, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: Full board meetings are a practical means of calling upon the accumulated experience of board members when making an important policy decision and obviate the possibility of different panels inadvertently deciding similar issues in a different way. The rules of natural justice should reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties.
The members of a panel who actually participate in the decision must have heard both the evidence and the arguments presented by the parties. The presence of other Board members at the full board meeting does not, however, amount to "participation" in the final decision. Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decision because this discussion might "influence" the decision maker.
Decision makers cannot be forced or induced to adopt positions they do not agree with by means of some formalized consultation process. A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and does not constitute an obstacle to this freedom. The ultimate decision, whatever discussion may take place, is that of the decision maker and he or she must assume full responsibility for that decision. Board members are not empowered by the Act to impose one member's opinion on another and procedures which may in effect compel or induce a panel member to decide against his or her own conscience or opinion cannot be used to thwart this de jure situation.
The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions. The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. As practised by the Board, the holding of full board meetings does not impinge on the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence.
For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues.
Evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness. It is, however, possible to discuss the policy issues arising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factual conclusions. These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel. The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value.
Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties. While they are adopted in a factual context, they are an expression of principle or standards akin to law. Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint.
On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view. The rule with respect to legal or policy arguments not raising issues of fact is, however, somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments. This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case.
The safeguards attached by the Board to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided the parties are advised of any new evidence or grounds and are given an opportunity to respond. The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice. In the instant case, the policy decided upon was the very subject of the hearing when the parties had full opportunity to deal with the matter and present diverging proposals which they did.
Per Lamer and Sopinka JJ. (dissenting): The introduction of policy considerations in the decision‑making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in that respect violates the rationale underlying the principles of natural justice.
The final decision was formally that of the three‑member panel. The inference that the full Board meeting might have affected the outcome, however, exists and is fed by two difficulties. Firstly, uniformity can only be achieved if some decisions of the individual panels are brought into line with others by the uniform application of policy. Secondly, in matters affecting the integrity of the decision‑making process, an appearance of injustice is sufficient to taint the decision.
The Board is required by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions. It is also entitled to apply policy. The role of policy in the decision-making function of boards must be reappraised in light of the evolution of the law relating to the classification of tribunals and the application of the rules of natural justice and fairness to those boards. The content of the rules of natural justice is no longer dictated by classification as judicial, quasi‑judicial or executive, but by reference to the circumstances of the case, the governing statutory provisions and the nature of the matters to be determined. It is no longer appropriate to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates.
The full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and accordingly constituted a denial of natural justice. It could not be determined with certainty from the record that a policy which was developed at the full Board hearing and was not disclosed to the parties was a factor in the decision. That this might very well have happened, however, was fatal to the Board's decision.
The goal of uniformity in the decisions of individual boards, while laudable, cannot be achieved at the expense of the rules of natural justice. The legislature, if it so chooses, can authorize the full Board procedure.
The conclusion that no substantial wrong occurred could not be made. Prejudice arising because of a technical breach of the rules of natural justice must be established by the party making the allegation. The appellant, however, could hardly be expected to establish prejudice when it was not privy to the discussion before the full Board and when there is no evidence as to what in fact was discussed. The gravity of the breach of natural justice could not be assessed in the absence of such evidence.
The full Board procedure was not saved by s. 102(13) of the Labour Relations Act which granted the Board the power to determine its own practice and procedure subject to the qualification that full opportunity be granted the parties to any proceedings to present their evidence and to make their submissions. The appellant was not given a full opportunity to present evidence and make submissions. The Board's practice must give way when at a variance with the rules of natural justice.
Cases Cited
By Gonthier J.
Considered: United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577; Doyle v. Restrictive Trade Practices Commission, [1985] 1 F.C. 362; referred to: Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344; The King v. Huntingdon Confirming Authority, [1929] 1 K.B. 698; Re Rosenfeld and College of Physicians and Surgeons (1969), 11 D.L.R. (3d) 148; Regina v. Broker‑Dealers' Association of Ontario (1970), 15 D.L.R. (3d) 385; Re Ramm (1957), 7 D.L.R. (2d) 378; Regina v. Committee on Works of Halifax City Council (1962), 34 D.L.R. (2d) 45; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; Re Rogers (1978), 20 Nfld. & P.E.I.R. 484; Underwater Gas Developers Ltd. v. Ontario Labour Relations Board (1960), 24 D.L.R. (2d) 673; Re Toronto and Hamilton Highway Commission and Crabb (1916), 37 O.L.R. 656; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente v. The Queen, [1985] 2 S.C.R. 673; Rex v. Sussex Justices, [1924] 1 K.B. 256; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Board of Education v. Rice, [1911] A.C. 179; Local Government Board v. Arlidge, [1915] A.C. 120.
By Sopinka J. (dissenting)
United Electrical, Radio and Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577; Re Ramm (1957), 7 D.L.R. (2d) 378; Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344; Walker v. Frobisher (1801), 6 Ves. Jun. 70, 31 E.R. 943; Szilard v. Szasz, [1955] S.C.R. 3; Rex v. Huntingdon Confirming Authority, [1929] 1 K.B. 698; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; B. Johnson & Co. (Builders), Ltd. v. Minister of Health, [1947] 2 All E.R. 395; Re Cloverdale Shopping Centre and the Township of Etobicoke (1966), 2 O.R. 439; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Innisfil (Corporation of the Township) v. Corporation of Township of Vespra, [1981] 2 S.C.R. 145; City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; R. v. Criminal Injuries Board, [1973] 1 W.L.R. 1334; Toshiba Corp. v. Anti‑Dumping Tribunal (1984), 8 Admin. L.R. 173; Komo Construction Inc. v. Commission des Relations de Travail du Québec, [1968] S.C.R. 172.
Statutes and Regulations Cited
Labour Relations Act, R.S.O. 1980, c. 228, ss. 14, 102(9), (13), 106, 108, 114.
Authors Cited
Aronson, Mark and Nicola Franklin. Review of Administrative Action, 2nd ed. Sydney: Law Book Co., 1987.
Benyekhlef, K. Les garanties constitutionnelles relatives à l'indépendance du pouvoir judiciaire au Canada. Cowansville, Québec: Blais, 1988.
Blache, Pierre et Suzanne Comtois. "La décision institutionnelle" (1986), 16 R.D.U.S. 645.
Crane, Brian. Case Comment (1988), 1 C.J.A.L.P. 215.
de Smith, S. A. de Smith's Judicial Review of Administrative Action. 4th ed. By J. M. Evans. London: Stevens & Sons, 1980.
Dussault, René and Louis Borgeat. Administrative Law: A Treatise, 2nd ed. Translated by Murray Rankin. Toronto: Carswells, 1985.
Garant, Patrice. Droit administratif, 2e éd. Montréal: Blais, 1985.
Morissettte, Yves‑Marie. Le contrôle de la compétence d'attribution: thèse, antithèse et synthèse (1986), 16 R.D.U.S. 591.
Ontario. Royal Commission Inquiry into Civil Rights. Report of the Royal Commission Inquiry into Civil Rights, vol. 5, Report No. 3. Toronto: The Queen's Printer, 1971.
Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2e éd. Cowansville, Québec: Blais, 1982.
Sack, Jeffrey and C. Michael Mitchell. Ontario Labour Relations Board Law and Practice. Toronto: Butterworths, 1985.
Wade, Henry William Rawson. Administrative Law, 4th ed. Oxford: Clarendon Press, 1977.
APPEAL from a judgment of the Ontario Court of Appeal (1986), 56 O.R. (2d) 513, allowing an appeal from a judgment of the Divisional Court (1985), 51 O.R. (2d) 481, 20 D.L.R. (4th) 84, 85 CLLC 14,031, granting an application to quash a decision of Ontario Labour Relations Board, [1983] OLRB Rep. December 1995, 5 CRBR (NS) 79, made on a reconsideration of its original decision, [1983] OLRB Rep. September 1411, 4 CLRBR (NS) 178. Appeal dismissed, Lamer and Sopinka JJ. dissenting.
William R. Herridge, Q.C., for the appellant.
Paul Cavalluzzo and David Bloom, for the respondent International Woodworkers of America, Local 2‑69.
Gordon F. Henderson, Q.C., and R. Ross Wells, for the respondent Ontario Labour Relations Board.
//Sopinka J.//
The reasons of Lamer and Sopinka JJ. were delivered by
Sopinka J. (dissenting) -- The issue in this case is the propriety of a practice of the Ontario Labour Relations Board pursuant to which a full Board session is held to discuss a draft decision of a three‑person panel.
Facts
The Ontario Labour Relations Board (hereinafter the "Board") derives its statutory authority under the Labour Relations Act, R.S.O. 1980, c. 228 (hereinafter the "Act"). The Board ordinarily sits in panels of three in hearing applications under the Act. This is authorized by s. 102(9) of the Act which provides:
102. . . .
(9) The chairman or a vice‑chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.
The original decision of a panel of three members of the Board ([1983] OLRB Rep. September 1411) from which this litigation arises was that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close its Hamilton plant. In the course of deliberating over this decision, a meeting was held of the full Board to discuss a draft of the reasons. No express statutory authority exists for this practice.
Although we are told that the full Board consists of 48 members, it does not appear from the record how many attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act. The affidavit of Mr. Michael Gordon, filed on behalf of the appellant, identifies thirteen of the people present, among them an alternate chairman, several vice‑chairmen, a number of Board members, solicitors and senior employees of the Board. Of those specifically identified, only Board member Wightman was a member of the panel which heard the case. Nevertheless it appears from the Board's reasons on reconsideration that the other members of the panel of three were also present.
While it is not contested that no evidence was introduced at this full Board meeting, it is not clear from the record what was discussed. The meeting took several hours but no minutes were kept. The reasons of the Board on reconsideration describe the practice of the Board in relation to full Board hearings but provide no details as to what was discussed. It may be assumed that the matters discussed were in accordance with the Board's practice in this regard. This practice is described in the decision of the Board on Consolidated‑Bathurst's application to reconsider the original decision, [1983] OLRB Rep. December 1995, which reads, in part, at paragraph 8:
8. After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice‑chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.
There is no evidence that the procedure at the meeting in question departed from the Board's usual practice, whereby discussion is limited to the policy implications of a draft decision, the facts contained in the decision are taken as given, no vote or consensus is taken, no minutes are kept, and no attendance is recorded. The practice is not a recent innovation. It goes back at least as far as 1971 when it was referred to, disapprovingly, in Chief Justice McRuer's report in the Royal Commission Inquiry into Civil Rights, February 22, 1971, pp. 2004‑6.
The appellant learned of the full Board meeting by chance and requested a reconsideration by the Board of its decision. This request was denied. In the course of its reasons the Board, as mentioned above, described its practice in detail and defended it as promoting consistency in the Board's decisions and as an institutionalization of the informal practice of conferral among colleagues. The Board considered its practice not a breach of natural justice but rather a procedure well suited to the Board's size, composition, and statutory mandate. Subsequent to the Board's refusal to reconsider its decision, the appellant applied to the Divisional Court for judicial review.
Divisional Court (1985), 51 O.R. (2d) 481
The majority of the Divisional Court, with Osler J. dissenting, granted the application, quashed the Board's decision, and ordered the Board to reconsider the matter in light of the Court's reasons for judgment. The reasons of the majority of the Divisional Court, delivered by Rosenberg J., were to the effect that because the parties had no knowledge as to what had been said in the discussions and no opportunity to respond, there was a violation of the principle that he who hears must decide. It could not be said with certainty that the three‑member panel was not influenced in its decision by the full Board, because of the lack of evidence as to what transpired at the meeting. Thus the Court quashed the Board's decision. Osler J., on the other hand, was of the view that the common law contained no prohibition of consultation among decision makers and their colleagues, so long as those who have not heard the evidence and submissions do not participate in the decision. While the parties must be given the opportunity to respond to new ideas or evidence, this case provided no evidence that the full Board meeting had yielded any such ideas or evidence.
Court of Appeal (1986), 56 O.R. (2d) 513
The decision of the Divisional Court was reversed on appeal to the Court of Appeal. Cory J.A., as he then was, in the Court of Appeal, concluded that pursuant to s. 102(13) of the Labour Relations Act the Labour Relations Board had exclusive jurisdiction to determine its own practice and procedure subject only to the obligation to give a full opportunity to the parties to the proceedings to present evidence and make submissions. He further concluded that there was no denial of natural justice in this case and that the meeting was an exercise of common sense whereby the significance and effect of a decision was discussed with other experts in the field. He emphasized, however, that the full Board procedure was limited in that the parties must be recalled if new evidence is considered in the full Board's discussion, and that while the panel can receive advice from the full Board there can be no participation by the other Board members in the decision.
Issues
The issue in this appeal is whether the following rules of natural justice have been violated:
(a) he who decides must hear;
(b) the right to know the case to be met.
The Effect of the Full Board Procedure
The first step in deciding whether the rules of natural justice have been breached is to assess what role, if any, the full Board procedure played in the decision‑making process. The appellant submits that the outcome of its case may have been influenced by a formalized meeting of the full Board. The respondent Union counters by submitting that the appellant must establish a breach of the rules of natural justice but can point to no new evidence or arguments in the decision of the Board that were obtained as a result of the full Board procedure. The purport of the Board's reasons on the application for reconsideration is that the ultimate decision was left to the panel and therefore presumably that the discussion of policy implications did not influence the final decision.
In the Board's reasons on reconsideration, it is stated at p. 2002 that the object of the full Board hearings is as follows:
These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.
The Board further states, at pp. 2002‑3, that:
9. "Full Board" meetings are as important to fashioning informed and practical decisions which will withstand the scrutiny of subsequent panels as is the research and reflection undertaken by the vice‑chairmen in preparing their draft decisions . . . . The "Full Board" meeting merely institutionalizes these discussions and better emphasizes the broad ranging policy implications of individual decisions.
The learned authors of Sack and Mitchell, Ontario Labour Relations Board Law and Practice, at p. 7, summarized the practice in the following terms:
When such a matter is referred in this way, the full Board does not consider the evidence or the facts of the case, but individual members may express their views on questions of law or policy. No vote is taken. The panel which heard the case then confers in private session and reaches a decision. In this way, some uniformity in Board decisions on matters of policy and procedure has been achieved in spite of the fact that differently constituted panels sit every day.
The issue before the Board was whether unsolicited disclosure of a proposed plant closing which was alleged to be at least under serious consideration was an aspect of the duty to bargain in good faith. In this regard the Board was being asked by the respondent Union to extend its decision in United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577, or at least to give it a broad interpretation. That case had decided that, as part of the employer's obligation to negotiate in good faith, an employer had a duty to disclose a de facto decision to close a plant. Resolution of this issue required the panel to choose between competing policies. The important role of policy is depicted in the following passages in the Board's original reasons at pp. 1430‑31, 1436 and 1443:
In cases of this kind there are, of course, significant conflicting values at stake. There is the desirability of stability in collective bargaining relationships as evidenced by the statutory policy requiring a collective agreement for a minimum term of one year and the twin statutory requirements of "no strike and no lockout". All differences during the term of an agreement are to be funnelled through grievance arbitration. It is also widely understood that management must have the ability to take initiatives in responding to the new demands posed by changing circumstances. The market place seldom awaits labour and management consensus. On the other hand, unilateral management initiatives can adversely affect significant interests of employees and unions who, in the absence of change, may have built up certain expectations and attitudes concerning the status quo.
. . .
The Board must also be sensitive to the statutory purpose of the bargaining duty, the language describing that duty, and the industrial relations implications of one approach over another.
. . .
What policy justification then supports greater unsolicited disclosure and merits the Board's intervention in the face of these potential difficulties?
In the result the Board chose to broaden the application of Westinghouse by extending the meaning of a de facto decision to the facts of this case. At paragraph 53, p. 1447 of its decision, it stated:
53. In any event, we find that the matter of the impending closing was so concrete and highly probable in early January and dealt with by the board of directors in such a perfunctory manner (in that there was no documentation or apparent consideration of alternatives), the company had a minimum obligation to say that unless a certain percentage of the new business was retained or unless there was a dramatic turn in the operation a recommendation to close would be made within the next few weeks. Having regard to the Christmas letter to employees; the productive second half of 1982; and to the then state of dialogue between local labour and management on the future of the plant, the company's silence at the bargaining table was tantamount to a misrepresentation within the meaning of the de facto decision doctrine established in Westinghouse.
The following passage, at p. 2004, from the Board's reasons on reconsideration summarizes the participation of the full Board in the application of policy:
Unsolicited disclosure in collective bargaining -- the issue involved in the case -- is an area of great significance to effective and harmonious collective bargaining in this Province and it is fair to say that many of the labour and management Board members in attendance at the meeting gave their reaction to the principles and their application as set out in the draft decision. No vote, however, was held and no other mechanism for measuring consensus was employed.
Given the number of Board members present and the fact that included were an alternate Chairman, Vice‑chairmen and solicitors, the views expressed were potentially very influential.
In view of the above I adopt the following from the reasons of the majority of the Divisional Court, at pp. 491-92, as a correct statement as to the effect of the full Board meeting:
Chairman Shaw [sic] states in his reasons that the final decision was made by the three members who heard evidence and argument. He cannot be heard to state that he and his fellow members were not influenced by the discussion at the full board meeting. The format of the full board meeting made it clear that it was important to have input from other members of the board who had not heard the evidence or argument before the final decision was made. The tabling of the draft decision to all of the members of the board plus all of the support staff involved a substantial risk that opinions would be advanced by others and arguments presented. It is probable that some of the people involved in the meeting would express points of view. The full board meeting was only called when important questions of policy were being considered. Surely, the discussion would involve policy reasons why s. 15 should be given either a broad or narrow interpretation. Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence. The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.
I would conclude from the foregoing that the full Board meeting might very well have affected the outcome. The Board in its reasons on reconsideration does not directly seek to refute this inference. It does affirm that the final decision was that of the panel. There are two difficulties which confront the Board in seeking to negate the inference. First, I find it difficult to understand how the full Board practice can achieve its purpose of bringing about uniformity without affecting the decision of individual panels. Uniformity can only be achieved if some decisions are brought into line with others by the uniform application of policy. The second difficulty is that in matters affecting the integrity of the decision‑making process, it is sufficient if there is an appearance of injustice. The tribunal will not be heard to deny what appears as a plausible objective conclusion. The principle was expressed by Mackay J. in Re Ramm (1957), 7 D.L.R. (2d) 378 (Ont. C.A.) Mackay J. wrote, at p. 382:
With respect to the difference in the constitution of members of the Public Accountants Council on the first and second hearings, it may very well be that the two members of the Public Accountants Council who were not present at the earlier hearing, abstained from argument on the issues which fell for determination. It appears, however, that they did vote inasmuch as the decision to revoke the licence of the appellant Ramm was unanimous. It is well established that it is not merely of some importance but of fundamental importance, that "justice should not only be done but should manifestly and undoubtedly be seen to be done". In a word, it is not irrelevant to inquire whether two members of the Council who were not present at the earlier meeting took part in the proceeding in the Council's deliberation on the subsequent hearing. What is objectionable is their presence during the consultation when they were in a position which made it impossible for them to discuss in a judicial way, the evidence that had been given on oath days before and in their absence and on which a finding must be based. [Emphasis added.]
In Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, at p. 350, Cartwright J. cited with approval the following passage from the judgment of Lord Eldon L.C. in Walker v. Frobisher (1801), 6 Ves. Jun. 70, 31 E.R. 943, at pp. 72 and 944:
But the arbitrator swears, it (hearing further persons) had no effect upon his award. I believe him. He is a most respectable man. But I cannot from respect for any man do that, which I cannot reconcile to general principles. A Judge must not take upon himself to say, whether evidence improperly admitted had or had not an effect upon his mind. The award may have done perfect justice, but upon general principles it cannot be supported.
This statement had been approved previously by this Court in Szilard v. Szasz, [1955] S.C.R. 3. Cartwright J. was also impressed by the statement of Romer J. in Rex v. Huntingdon Confirming Authority, [1929] 1 K.B. 698, at p. 717:
Further, I would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25. There was a division of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.
I turn next to consider whether a discussion of policy matters at the full Board meeting which may have affected the outcome constituted a breach of the rules of natural justice.
The Principles of Natural Justice
Section 102(13) of the Act provides that the Board shall give full opportunity to the parties to present their evidence and make their submissions. The Board is empowered to determine its own practice and procedure but rules governing its practice and procedure are subject to the approval of the Lieutenant Governor in Council. While not every practice of the Board would necessarily be subject to the approval of the Lieutenant Governor, the full Board practice is one which might require such approval. No such approval has been given and indeed the practice does not appear to have been adopted formally as a rule of the Board. In view of the fact, however, that this point was not argued I do not propose to deal with it further.
The full Board hearing in this case is said to violate the principles of natural justice in two respects: first, that members of the Board who did not preside at the hearing participated in the decision; and second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there was no opportunity to make submissions.
Although these are distinct principles of natural justice, they have evolved out of the same concern: a party to an administrative proceeding entitled to a hearing is entitled to a meaningful hearing in the sense that the party must be given an opportunity to deal with the material that will influence the tribunal in coming to its decision, and to deal with it in the presence of those who make the decision. As stated by Crane in his case comment on the Consolidated-Bathurst decision (1988), 1 C.J.A.L.P. 215, at p. 217: "The two rules have the same purpose: to preserve the integrity and fairness of the process." In the first case the party has had no opportunity to persuade some of the members at all, while in the second the party has not been afforded an opportunity to persuade the tribunal as to the impact of material obtained outside the hearing.
The concern for justice is aptly put by the pithy statement in the McRuer Report criticizing the full Board procedure. At pages 2005‑6, the former Chief Justice of the High Court of Ontario states:
To take a matter before the full Board for a discussion and obtain the views of others who have not participated in the hearing and without the parties affected having an opportunity to present their views is a violation of the principle that he who decides must hear.
. . .
Notwithstanding that the ultimate decision is made by those who were present at the hearing, where a division of the Board considers that a matter should be discussed before the full Board or a larger division, the parties should be notified and given an opportunity to be heard.
Although I am satisfied that, at least formally, the decision here was made by the three‑member panel, that does not determine the matter. The question, rather, is whether the introduction of policy considerations in the decision‑making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in respect thereto, violates the rationale underlying the above principles.
In answering this question, it is necessary to consider the role of policy in the decision‑making processes of administrative tribunals. There is no question that the Labour Board is entitled to consider policy in arriving at its decisions. See Dickson J. (as he then was) in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at pp. 235‑36:
The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.
The Board, then, is obliged by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions. It is also entitled to apply policy. At a time when the content of the rules of natural justice was determined by classifying tribunals as quasi‑judicial or administrative, the Board would have been classified as exercising hybrid functions. A tribunal exercising hybrid functions did so in two stages. As a quasi‑judicial tribunal it was required to comply with the rules of natural justice. In making its decision, however, it assumed its administrative phase and could overrule the conclusion which was indicated at the hearing by the application of administrative policy. Examples of this type of tribunal and the jurisprudence relating to its functions can be found in cases such as B. Johnson & Co. (Builders), Ltd. v. Minister of Health, [1947] 2 All E.R. 395, and Re Cloverdale Shopping Centre and the Township of Etobicoke (1966), 2 O.R. 439 (Ont. C.A.) In this state of the law there was no obligation on a tribunal during its administrative phase to comply with the rules of natural justice and hence to disclose policy which was being applied. Although tribunals exercising so‑called administrative functions were subject to a general duty of fairness, disclosure of the policy to be applied by the tribunal was generally not a requirement. In the case of hybrid tribunals, therefore, such non‑disclosure at the quasi‑judicial stage would not