The labour and administrative law landscape in Alberta is a little different from many of the other provinces, certainly BC. The use of three member arbitration panels (as opposed to one person), the judicial review route (no labour board sraight to a judge), the determination of standards of review (no Administrative Tribunals Act and on a case by case basis), are but some of the differences that result in Judge made law on very interesting substantive and procedural legal issues.

John Gescher, a very excellent and experienced lawyer from Calgary, brought this case to my attention: Waiward Steel Fabricators Ltd. v. IABSRI (Shopmen’s Local Union No. 805), 2005 ABQB 269 (CanLII).

The case involves the eligibility of a union nominee to sit on an three member arbitration panel where that person was employed by a parent union not party to the collective agreement. The Court reviewed the bias provisions of section 139 of the Alberta Labour Relations Code and held that in addition to the express bias criteria stated in the Act, disqualification would also be based on a reasonable apprehension of bias:

[14] Bethany and Foothills, (supra) both recognize the practice of partiality in appointing nominees to an arbitration panel, but have drawn the line where a nominee is not intellectually objectively impartial. The award framed the issue in this fashion:

The issue is whether there remains an overriding requirement for independence of a nominee to an arbitration board award (page 9).

[15] The award then went on to hold at page 13:

The Court of Appeal in Bethany and Foothills were wrong to import concepts of reasonable apprehension of bias on a lack of independence to nominees in labour arbitration proceedings.

[16] With respect I disagree that the courts have imported the concept of apprehension of bias into labour arbitration proceedings. The concept of a fair hearing has long been a part of administrative law and continues to be so. The concept of a fair hearing includes the concept of of an apprehension of bias. It would be very difficult to set legislative parameters on what constitutes a reasonable apprehension of bias as there are many forms of such. The determination of a reasonable apprehension of bias is best left to the tribunals and courts to determine based on facts presented.

[17] The award in this matter held that the only basis for disqualification are the two reasons set out in s.139 of the Labour Relations Code.

[18] Under the circumstances I must respectfully disagree for in my view disqualification can arise from a bias grounded in, for example, a lack of objective impartiality. In my view the law is well settled in this area and since the nominee Mr. Mike Clarke was an employee of the parent union even though the parent union was not a party to the collective agreement in question, it is my view that a reasonable person apprised of all the circumstances would have a reasonable apprehension of a biased assessment relating to the issue before the arbitration panel.

The underlying award was quashed and sent back to a new panel for re-hearing.

The case is a useful reminder of the principles underlying bias in administrative law proceedings. Very simply, if it looks like someone shouldn’t be making a decision in a matter due to their involvement in the matter or another related matter, they probably shouldn’t be making that decision.