A recent decision of the Ontario Labour Relations Board raises questions about the Board’s approach to principles of fairness in its proceedings.
Labourer’s Union Local 183 and Islington Nurseries were embroiled in a lengthy dispute before Labour Board Vice Chair Mark Lewis when Mr. Lewis announced his resignation. There had been 9 days of hearing already and it was estimated that there were many days of hearing left. Upon his resignation, Mr. Lewis immediately began working as a lawyer for another construction trade union – the Carpenters union.
Exercising his authority under the Labour Relations Act, the Board Chair authorized Lewis to continue to sit as Vice Chair on the Islington Nurseries case after he began his new job with the Carpenters union. Islington Nurseries objected alleging that Mr. Lewis’ new employment raised a reasonable apprehension of bias.
The Board Chair rejected Islington Nurseries objection and issued an award confirming his decision to allow Lewis to continue to preside over the matter.
Although its not explicit in the Chair’s reasons, not far below the surface there seems to have been a concern that the employer’s objections were primarily tactical in nature. While frustrating for the Chair, this should not distract from the important task of protecting the integrity of the Board as a neutral and independent quasi-judicial tribunal.
In the Board’s decision, the Chair draws a parallel between the circumstances when a private practitioner leaves private practice to come to the Board and situations, such as here, when a Vice Chair leaves the Board to return to private practice. The Chair labels distinctions between these two circumstances as “distinctions without a difference”.
With respect, I’m not so sure.
When a judge is appointed to the Court, she “puts her pen down”. She becomes an officer of the court and is no longer in a position to continue to represent clients. Her allegiance is solely to the Court and the administration of justice. Once appointed, the allegiance of Board Vice Chairs is exclusively to the Board and the advancement of the principles of the Labour Relations Act. Even under these circumstances, it is understood that there will be a period of time when caution is exercised in assigning cases that are connected with the Vice Chair’s previous life as counsel.
In its reasoning, the Board relies on cases involving objections to a newly appointed Vice Chair because of their work as a lawyer prior to their appointment. The question in those decisions is whether prior activity by the Vice Chair raises an apprehension of bias in his subsequent role as a Vice Chair. But these cases don’t address situations in which a Vice Chair is acting simultaneously as counsel for trade unions while presiding as a Vice Chair of the Board. Yet that is precisely the factual situation presented in the Islington Nurseries case.
As a practicing union lawyer, Mr. Lewis is duty bound to advance the interests of trade unions. That is what he is now paid to do. As a matter of principle, he will not act on behalf of employers. Yet at the same time, he will now be rendering a decision as a Vice Chair of the Board.
How can the Board say that this is a distinction without a difference – patently it is not.
Chief Justice McRuer wrote the following in Regina v. Ontario Labour Relations Board ex parte Hall (1963), 39 D.L.R. (2d) 113:
“It is quite a different thing where a member of a board has a dual responsibility, on the one hand to carry out the declared policies of the Ontario Federation of Labour and on the other hand to decide impartially any matter that may be in conflict with those policies. I do not think on any recognized principle of law applicable to judicial or quasi-judicial tribunals one who has clearly divided loyalties as in this case can be permitted to act.”
We all recognize the inefficiencies and practical difficulties associated with restarting a case like this. Indeed, my view is that most parties in similar circumstances would not object to Mr. Lewis continuing and would welcome the Chair exercising his powers under section 110(7) of the Act. However, these concerns ought not to subordinate the fundamental principle of ensuring that the Board is free from apprehension of bias.
To be clear, I have no doubt in the integrity of Mr. Lewis and personally believe that he would ultimately render a decision that fairly weighs the evidence and applies the law. Indeed, I suspect that he would be exceedingly cautious in his decision in this regard. No doubt, that’s what ultimately drove the Chair to reject Islington Nurseries’ objection. But that is not the test.
The test – as the Chair rightly points out – is whether the circumstances could reasonably raise an apprehension of bias. Clearly the answer to that question is “yes”, regardless of my or the Chair’s own personal opinion of Mr. Lewis’ integrity as an individual decision maker.
The Labour Board arguably has its strongest roster of Vice Chairs in recent history and is under the leadership of an excellent Chair. It should confidently and aggressively defend the integrity of the Board as one of the most respected neutral decision-making administrative tribunals in the country. This decision is a step backward, not forward.