Administrative law – Teachers – Disciplinary proceedings – Adjudication – Judicial review – Reasonable apprehension of bias – test – Procedural fairness – Natural justice
Lurette v. New Brunswick (Minister of Education),  N.B.J. No. 353, New Brunswick Court of Queen’s Bench, September 19, 2003, Young J.
The court reviewed the principles of fundamental justice as including the rules of natural justice and a duty to act fairly, which in turn imposes a duty on a decision-maker to be and appear to be impartial (R. v. R.D.S.,  3 S.C.R. 484). The court also noted that although the requirement of procedural fairness and the rules of natural justice apply to administrative tribunals, the scope of these rules can vary depending on the nature and function of the tribunal. The court held that the pivotal function of this Board of Adjudication involved the resolution of disputes between opposite parties, in this case between the Province of New Brunswick and Lurette. Given that this was an adjudicative function, the court held that the conduct of the members of the Board should meet the same standards of bias as judges have to meet. That is, members of the Board of Adjudication should start with a neutral mind and undertake their duties in an impartial manner.
The court applied the following test in paragraph 24:
…whether a reasonable person, who took the time and trouble to become informed of all of the circumstances of the situation presently under review, would conclude that Mr. Poirier’s employment with Service New Brunswick, after the hearing, but before a decision was rendered, would render it more likely than not that he would not be impartial as between the parties.
An objective standard is to be used in determining reasonable apprehension of bias, with a twofold objective element, namely that the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.
The court considered the information that would be known to a reasonable person in the circumstances in assessing the question of reasonable apprehension of bias and held that although Poirier was not associated with the Province of New Brunswick at the time of the hearing before the Board, 10-1/2 months prior to rendering a decision he became an employee of Service New Brunswick. The Province of New Brunswick was found to be involved to a significant degree in the financial affairs of Service New Brunswick and although both organizations were large organizations which could provide a great diversity of employment, the court held that a well-informed person, assessing all of the information, would find that there existed a substantial nexus between Service New Brunswick and the Province of New Brunswick such that Poirier could be more favourably disposed towards the Province of New Brunswick than to Lurette.
Lurette was successful in demonstrating a reasonable apprehension of bias.
The province attempted to argue that Lurette waived the breach of procedural fairness resulting from the reasonable apprehension of bias by his failure to object at the first reasonable opportunity to Poirier acting as chairperson of the Board of Adjudication. The court held that although Poirier and/or his solicitor had been dilatory in taking positive steps to ascertain Poirier’s position, in the circumstances, Lurette’s failure to raise the allegation of bias prior to the Board rendering its decision did not lead the court to the inference that he had waived his right to be tried by an impartial Board of Adjudication.
Finally, the court considered the correctness of the decision made by the Board of Adjudication. The Province of New Brunswick submitted that normally a court was precluded from examining the correctness of a decision following a finding that there had been a violation of procedural fairness. The court reviewed the circumstances of the hearing and held that it was not satisfied that the Board could not have made any decision other than the one it rendered as “a matter of law” for two reasons: first, due to the incomplete record of the proceedings and second, because, in the court’s opinion, it was a decision based on an assessment of credibility, and such assessments had been described by McLachlin C.J. as being quintessentially questions of fact (Dr. Q. v. College of Physicians and Surgeons of British Columbia,  S.C.J. No. 18).
The court also noted that, following the decision in R. v. R.D.S., the mere fact that a judge appears to make proper findings of credibility on certain issues, or comes to the correct result, cannot alleviate the effects of a reasonable apprehension of bias arising from either the words or conduct of the judge.
The court held that a procedural error had occurred consisting of a reasonable apprehension of bias, and that the Board’s decision could not be construed as being correct as a matter of law. The reasonable apprehension of bias tainted the entire proceeding, and the only remedy was a new hearing. The court remitted the matter back to be determined by another Board of Adjudication.
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