Tuesday, April 3, 2012

Arbitrators and reasonable apprehension of bias

Among the recent summaries of BC arbitrations forwarded to me by Diane Mclean is a very interesting and useful decision by Arbitrator Ron Keras on when an arbitrator should step down for a reasonable apprehension of bias.   The employer applied to the LRB for a review of the decision and the LRB rejected the employer's application on March 27, 2012


The arbitrator was appointed under Section 104 of the B. C. Labour Relations Code. Under this section, the arbitrator is appointed by the Director of the Collective Agreement Arbitration Bureau. The employer raised a preliminary objection, arguing that the arbitrator should decline his appointment because of a reasonable apprehension of bias. The employer testified that the arbitrator’s sister owned a competitor company. The employer was not alleging actual bias but the possibility or potential appearance of bias. In the alternative, the employer also suggested that the arbitrator ask himself if he is comfortable proceeding on a non-consensual basis.

Analysis and Decision

The arbitrator started by stating that the test for reasonable apprehension of bias is grounded on the necessity for confidence in the impartiality of adjudicators. The question to be addressed in this case “is whether the employer’s apprehension is reasonable in the circumstances based on the evidence”. The arbitrator noted there was no evidence or allegation the arbitrator had an interest in his sister’s company. The arbitrator then referred to the principles to be applied as summarized   Taylor Ventures Ltd.

(i) a judge’s impartiality is presumed

(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;

(iii) the criterion for disqualification is the reasonable apprehension of bias;

(iv) the question is what would an informed, reasonable and right minded person, reviewing the matter realistically and practically, and having thought the matter through, conclude;

(v) the test for disqualification is not satisfied unless it is proved that the informed reasonable and right minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;

(vi) the test requires demonstration of serious grounds on which to base the apprehension;

(vii) each case must be examined contextually and the inquiry is fact specific. (emphasis in the original)

The arbitrator considered these principles. First, the arbitrator noted that  the employer had not proven a current or past business or professional relationship between the arbitrator and the competitor company. The arbitrator commented that the employer’s application began on the basis that the arbitrator had significant knowledge about his sister’s business. The arbitrator had earlier provided information about his knowledge and commented that:

The information provided, and the manner in which it was acquired, is indicative of someone who takes particular care in terms of impartiality, including the appearance of impartiality, with respect to his status and reputation within the profession.

The arbitrator noted that the employer was concerned that strategic business information divulged in an arbitration hearing could be provided to a competitor, but no evidence was provided in regard to this. In addition, arbitral decisions, which often review evidence, become public when they are published. The arbitrator, in applying the test, found there was insufficient factual evidence to establish the circumstances justified disqualification.

The arbitrator also considered the employer’s suggestion that the arbitrator might be more comfortable declining this appointment. The arbitrator noted that under Section 104 the parties might not receive their arbitrator of choice but that was the nature of the statute and “to some extent this form of adjudication is of the Parties own making”. The arbitrator also considered that while stepping aside may seem to be an attractive option, he was persuaded by the union’s arguments that he had an obligation to hear the matter and therefore would not step aside.   

The employer made an unsuccessful application to stay the award at the Labour Relations Board.  The Board was not satisfied that its long-standing policy of implementation pending applications for review should be departed from in this case.  

The Labour Relations Board issued its reconsideration decision on March 27, 2012.  The Board declined to set aside the decision after a thorough review of the case law on the subject.  The Board applied the following test: “what would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude: would he or she think that it is more likely than not that the adjudicator, whether consciously or unconsciously, would not decide fairly.” As well, the ground for apprehension must be substantial or serious. The Board concluded that the particular circumstances were insufficient to give rise to a reasonable apprehension of bias. 

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