Date: 19981008
Docket: A-447-98
CORAM: MARCEAU J.A.
McDONALD J.A.
SEXTON J.A.
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Appellant
- and -
CANADA POST CORPORATION
Respondent
Heard at Ottawa, Ontario, on Thursday, October 8, 1998.
Judgment rendered from the Bench on Thursday, October 8, 1998.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
Date: 19981008
Docket: A-447-98
CORAM: MARCEAU J.A.
McDONALD J.A.
SEXTON J.A.
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Appellant
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on Thursday, October 8, 1998)
MARCEAU J.A.
We do not need to hear you, Mr. Heintzman. In spite of the excellence of his presentation, counsel for the appellant has not been able to persuade us that this appeal could succeed. In our judgment, the impugned decision of the Trial Division, dismissing the application brought by the appellant for the removal of the Mediator-Arbitrator appointed under the Postal Services Continuation Act, 1997 which legislated unionized postal workers back to work, should not be overturned.
We acknowledge that the position taken by the motions judge as to the standard to be applied to this Mediator-Arbitrator in considering an allegation of reasonable apprehension of bias made against him is not accurate. By suggesting that the situation to be attributed to such a decision-maker in the spectrum established by the Supreme Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, for assessing allegations of bias against members of commissions or administrative boards should be somewhere in between the legislative and adjudicative extremes, the trial judge somewhat misdirected himself as to the teachings to be drawn from the series of cases that followed Szilard v. Szasz, [1955] S.C.R. 3. The role attributed to the Mediator-Arbitrator here is not exactly the same as that of a usual arbitrator, as he is not asked to interpret or rule upon a contract, an existing collective agreement or some binding commercial practices but, rather, to create a collective agreement, albeit based upon evidence presented to him. But, nevertheless, we remain of the view that he should be held to a standard pretty close to the highest one, that attributed to a judge in a civil case.
But, that being said, we believe that the motions judge"s imprecision in the formulation of the applicable rule did not affect the soundness of his overall conclusions.
Let us say, first, that, as openly agreed by counsel, this Court has absolutely no reason to interfere with the findings of the motions judge with respect to the actual content of the conversation that took place between the Mediator-Arbitrator and his flying companion, which conversation is the sole basis of the allegation of apprehension of bias. Those findings, attached as they are to a well-reasoned understanding of the facts and a proper assessment of the credibility of the two main witnesses who testified in open Court, that is to say the flying companion and the appellant"s executive who overheard the conversation, are definitely binding on this appellate court.
The question, therefore, for us is whether the motions judge was wrong in refusing to accept that, in that conversation properly reconstructed, there were passages, either considered in isolation or collectively and in the context of the arbitration process viewed in its entirety, that could make an informed bystander reasonably perceive a serious possibility and a real likelihood of bias on the part of the Mediator-Arbitrator. We believe that, however high the standard applied to the Mediator-Arbitrator, the answer to that question is no. The facts and the relevant principles, as we understand them, did not require a conclusion different from the one arrived at by the motions judge.
The appeal will, therefore, be dismissed with costs.
"Louis Marceau"
J.A.
IN THE FEDERAL COURT OF APPEAL
Date: 19981008
Docket: A-447-98
BETWEEN:
CANADIAN UNION OF POSTAL WORKERS
Appellant
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT