Fletcher v. Manitoba Public Insurance Corp., 2004 MBCA 192 (CanLII)IN THE COURT OF APPEAL OF MANITOBACoram:Mr. Justice Charles R. Huband
Mr. Justice Guy J. Kroft
Madam Justice Barbara M. Hamilton
BETWEEN:STEVEN J. FLETCHER(Applicant) Appellant
S. Green, Q.C.for the Appellant
- and -
THE AUTOMOBILE INJURY COMPENSATION APPEAL COMMISSION(Defendant) Respondent
T.D. Gisser and S. Hymanfor the Respondent
- and -
THE MANITOBA PUBLIC INSURANCE CORPORATION(Intervenor)
J. R. Shawfor the Intervenor
Appeal heard:
October 15, 2004Judgment delivered:
December 15, 2004HAMILTON J.A.1. This appeal is about an allegation of reasonable apprehension of bias concerning the chairperson of a three-person panel of the respondent (the Commission), which dismissed the appellant’s appeal under The Manitoba Public Insurance Corporation Act,
C.C.S.M. c. P215 (the Act). The Manitoba Public Insurance Corporation (MPI) had denied the appellant’s claim for additional attendant care costs that he would incur in his position as president of the Progressive Conservative Party of Manitoba. The panel unanimously upheld MPI’s denial of the appellant’s claim.
2. The appellant alleges a reasonable apprehension of bias exists because the chairperson made political contributions to the New Democratic Party. Based on that allegation, he brought an application for judicial review in the Court of Queen’s Bench to quash the panel’s decision. The motions judge denied the application and the appellant appeals.
3. The Commission says that the motions judge was correct because the circumstances of the allegation are not sufficient to meet the high threshold required to establish a reasonable apprehension of bias. At the appeal hearing before us, counsel for MPI, as intervenor, adopted the arguments of counsel for the Commission.
Background 4. The case manager at MPI assigned to the appellant, and then the internal review officer at MPI, denied the additional attendant care costs because the appellant had been, and is, receiving the maximum monthly reimbursement under s. 131 of the Act:
Reimbursement of personal assistance expenses131 Subject to the regulations, the corporation shall reimburse a victim for expenses of not more than $3,000 per month relating to personal home assistance where the victim is unable because of the accident to care for himself or herself or to perform the essential activities of everyday life without assistance.
5. The appellant appealed the decision of the internal review officer to the Commission. The hearing of the appeal took place before the panel on September 5, 2002, at which the parties were represented by counsel. The panel issued written reasons denying the appellant’s appeal on November 14, 2002.
6. The appellant filed his application in the Court of Queen’s Bench on October 8, 2003. Prior to this, Kroft J.A. denied the appellant leave to appeal the panel’s decision under s. 187(1) of the Act (see
2003 MBCA 62 (CanLII), (2003), 173 Man.R. (2d) 230, 2003 MBCA 62, leave to appeal to the Supreme Court of Canada denied,
[2003] S.C.C.A. No. 273 (QL)). In his decision, Kroft J.A. set out in some detail the personal history of the appellant, including the accident that left him paralyzed below the neck, his extraordinary determination to pursue his education and participate in extra-curricular activities at university (he served as president of the student’s union for two consecutive years) and his past and current relationship with MPI. The appellant acknowledges that MPI had “compassionately [exercised] its statutory powers to give rehabilitative assistance” (at
2003 MBCA 62 (CanLII), (2003), 173 Man.R. (2d) 230, 2003 MBCA 62, para. 4) to the appellant, until MPI’s denial of his claim for the additional attendant care costs.
The Panel’s Decision7. The substance of the panel’s decision is not at issue on this appeal. However, an understanding of the panel’s reasons provides helpful context.
8. In its reasons, the panel disagreed with the internal review officer and noted that in addition to reimbursement under s. 131, MPI has discretion to order reimbursement of expenses under s. 138 of the Act :
Corporation to assist in rehabilitation138 Subject to the regulations, the corporation shall take any measure it considers necessary or advisable to contribute to the rehabilitation of a victim, to lessen a disability resulting from bodily injury, and to facilitate the victim’s return to a normal life or reintegration into society or the labour market.
9. The pertinent regulation is subs. 10(1)(e) of Man. Reg. 40/94:
Rehabilitation expenses10(1) Where the corporation considers it necessary or advisable for the rehabilitation of a victim, the corporation may provide the victim with any one or more of the following:
(e) funds for occupational, educational or vocational rehabilitation that is consistent with the victim’s occupation before the accident and his or her skills and abilities after the accident, and that could return the victim as nearly as practicable to his or her condition before the accident or improve his or her earning capacity and level of independence.
10. The panel considered this discretion and then denied the appellant’s appeal for the following reasons:
In order to exercise that discretion, the Commission must be satisfied, on a balance of probabilities, that the funds to be expended are necessary or advisable for the Appellant’s rehabilitation in the context of occupational, educational or vocational rehabilitation. The Appellant’s current occupational goal is to become an [sic] MLA for the Province of Manitoba. In furtherance of that goal, he has chosen to become the president of a political party. While we are mindful that that position may assist him in his eventual goal, we find that this volunteer position is not a prerequisite to obtaining an elected seat in the Legislature. As such, the additional expenses which the Appellant incurs in this volunteer capacity cannot be deemed necessary in order to fulfill his occupational rehabilitation. Additionally, the Appellant has not established, on a balance of probabilities, that this volunteer position is advisable or recommended as a means to secure an elected seat in the Legislature. Certainly, many elected members have successfully run for office without becoming president of their political party. Unlike MPIC who may have exercised its discretion broadly in the past with respect to this Appellant, the Commission is strictly limited to the application of the relevant law. Having found that the Appellant’s request does not meet the requirements set out in subsection 10(1)(e) of Manitoba Regulation 40/94, we are unable to find in favour of the Appellant. Accordingly, for the foregoing reasons we accept the position advanced on behalf of MPIC and must dismiss this appeal.The Allegation of Reasonable Apprehension of Bias11. In July 2003, the appellant inquired of the offices of Elections Manitoba and learned that the chairperson of the panel, Yvonne Tavares, had made political contributions to the New Democratic Party of Manitoba ($701 in 2001 and $760 in 2002). He argues that these donations demonstrate that Ms Tavares is a political partisan of the New Democratic Party. He also argues that the issue on appeal before the panel had political implications because the additional attendant care costs related to the appellant’s work as president of the Progressive Conservative Party of Manitoba. Therefore, as a partisan of another political party, Ms Tavares should have recused herself from the panel or disclosed the fact of her contributions to enable the parties to object (or not) to her participation. Her failure to do either taints Ms Tavares, and therefore the panel, with a reasonable apprehension of bias and, as a result, the panel’s decision is a nullity.
The Commission and the Members of the Commission12. An understanding of how the Commission is established, how commissioners are appointed, and how panels of three commissioners hear the appeals is relevant to the issue on this appeal. Therefore, I provide a brief overview of pertinent provisions in the Act.
13. The Commission is “established as a specialist tribunal to hear appeals” (s. 175). The Lieutenant Governor in Council must appoint a chief commissioner and may appoint “one or more deputy chief commissioners and other commissioners” (s. 176(1)). A deputy chief commissioner is appointed for a term of three years or until re-appointed or replaced (s. 176(4)). A deputy chief commissioner and other commissioners “may be appointed on a full-time or part-time or sessional basis” (s. 176(6)). A commissioner takes and subscribes to an oath or affirmation of office pursuant to s. 176(8).
14. The Commission sits in panels of three commissioners (s. 178(1)) as established by the chief commissioner, who designates a commissioner as chairperson of the panel (s. 178(2)). Pursuant to s. 179(2) “a decision of the majority of the commissioners of a panel is a decision of the commission, and if there is not a majority, the decision of the chairperson of the panel is the decision of the commission.”
15. The chairperson of the panel, Ms Tavares, was appointed in April 2000, as deputy chief commissioner of the Commission on a full-time basis, at a salary of $69,694, and was re-appointed in April 2003, at a salary of $80,097. See Orders in Council 128/2000 and 142/2003.
The Reasonable Apprehension of Bias Test16. The test for reasonable apprehension of bias is well known and was expressed recently by the Supreme Court of Canada in Wewaykum Indian Band v. Canada,
2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, 2003 SCC 45. In Wewaykum, the court considered a motion for directions and to vacate a judgment written by Binnie J. (
2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, 2002 SCC 79) on behalf of a unanimous court. The motion was brought in light of public information that disclosed that Binnie J. had supervisory involvement in the mid-1980’s, in his capacity as Assistant Deputy Minister of Justice, over cases involving the Indian bands which were parties in the case. When the motion was made, Binnie J. recused himself from any further proceedings on the matter, and filed a statement that he had no recollection of personal involvement in the case.
17. The Supreme Court of Canada dismissed the motion, concluding that no reasonable apprehension of bias had been established. In reaching its decision, the court wrote of the serious nature of an allegation of reasonable apprehension of bias, of the strong presumption of judicial impartiality, that the standard requires an apprehension based on “serious grounds,” and that each case must be examined contextually and the inquiry is fact-specific.
18. In Wewaykum, the court set out what bias is (at para. 58):
… [A] leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. …
(R. v. Bertram, [1989] O.J. No. 2123 (QL) (H.C.), quoted by Cory J. in R. v. S. (R.D.),
1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484, at para. 106.)
19. The court then summarized the test for reasonable apprehension of bias in this way (at para. 60):
… [W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
The Decision of the Motions Judge 20. The motions judge referred to the test set out in Wewaykum and concluded that the appellant had not met this standard. He found the reasoning of Chapnik J. in Muscillo Transport Ltd. v. Ontario (Licence Suspension Appeal Board)
1997 CanLII 12317 (ON S.C.), (1997), 149 D.L.R. (4th) 545 (Ont. Gen. Div.) to be persuasive.
21. In Muscillo, the losing party before the Licence Suspension Appeal Board brought a motion for judicial review on the grounds, inter alia, of a reasonable apprehension of bias. The allegations centred around the fact that one board member held the position of membership secretary in the riding association for the Minister of Transportation. It was further alleged, by the applicant, that the member had made “significant” contributions to the Minister’s campaign for election and that the member benefited financially from her appointment to the board and was dependent on the Minister for the renewal of her appointment.
22. Chapnik J. concluded that the allegation of pecuniary bias was too remote. She wrote (at p. 562):
The applicants note that Ms. Bortolussi benefits from her Board appointment and claim that she is dependent upon the Minister for the renewal of her appointment.Certainly, there is financial benefit inherent in the position. Board members are compensated on a per diem
basis at a rate of $170 per day and sit, on average, one or two days per month. Their remuneration, however, is fixed by order in council and not by the Minister. There is no allegation of any special pecuniary interest in respect of the particular matter before the Board. The allegation of pecuniary bias is, in my view, both remote and speculative.
23. Chapnik J. reached a similar conclusion with respect to the allegation that a reasonable apprehension of bias existed due to the member’s prior political involvement. She concluded (at p. 573):
Although a degree of institutional perceptual bias exists by virtue of the Minister’s involvement in the appointment process, this is expressly permitted by the legislation and cannot, therefore, be the subject of legal complaint. The applicants have not satisfied the onus to demonstrate a reasonable perception of bias in the well-informed observer regarding Ms. Bortolussi’s exercise of her public duty. In my opinion, a reasonably well-informed observer would not apprehend that her appraisal or judgment of the issues in this case might be less impartial in all of the circumstances.24. The motions judge in our case concluded his reasons as follows (at para. 10):
Applying the principles set out in the Wewaykum and Muscillo, supra, decisions, I find that the plaintiff has not established that there is a perceived bias on the part of Yvonne Tavares. We do not have any information as to when in 2002 the donation was made nor do we have any information as to when Yvonne Tavares was appointed to the Appeal Commission. The fact that Yvonne Tavares may at some time have made donations to the New Democratic Party does not necessarily mean that there is a perceived bias if she presides at some later time on the Appeal Commission. There is nothing to indicate that Ms. Tavares had an interest in the outcome of the proceeding. The New Democratic Party is presently in power and the Manitoba Public Insurance Corporation is a crown corporation. The Appeal Commission is set up under the provisions of the Manitoba Public Insurance [Corporation]
Act to hear appeals from decisions of the Manitoba Public Insurance Corporation. It is set up as an independent body and there are no allegations that its decisions are somehow influenced by the New Democratic Party. The Appeal Commission which heard the appeal consisted of three members who issued a unanimous well-reasoned decision. I do not believe that a reasonable person properly informed would apprehend that there was bias in this case. Accordingly, the application of the plaintiff is dismissed. …Analysis and Decision 25. The Orders in Council appointing Ms Tavares as deputy chief commissioner were not before the motions judge. At the appeal hearing, we granted leave to the appellant to file copies of them. While the Orders in Council provide more detail about Ms Tavares’ appointments pursuant to s. 176(1) of the Act, the appellant’s argument remained focussed exclusively on the political donations made by Ms Tavares. The appellant did not argue that political activity or party support alone created a reasonable apprehension of bias.
26. The appellant argues that the motions judge erred in not concluding that the political donations demonstrate that Ms Tavares is a political partisan and that the issue before the panel was political in nature. He says that these circumstances satisfy the test set out in Wewaykum.
27. The appellant also argues that Muscillo does not apply to the circumstances here because the issue on appeal in that case concerned the cancellation of a truck operating licence and had no connection to politics. He relies on Szilard v. Szasz,
1954 CanLII 4 (S.C.C.), [1955] S.C.R. 3, a case challenging the decision of an arbitrator who had business interests with a party to the arbitration, for the principles applicable to the case here. The principles set out in the review of authorities in Szilard are not contentious and are consistent with the principles set out in Wewaykum. These principles were also the subject of comment by Cory J. in R. v. S. (R. D.),
1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484. He wrote (at paras. 111-13):
The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369, at p. 394:[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. … [The] test is “what would an informed person, viewing the matter realistically and practically ― and having thought the matter through ― conclude. …”This test has been adopted and applied for the past two decades. It contains a two-fold objective element: 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. See Bertram [[1989] O.J. No. 2123 (QL)], at pp. 54-55; Gushman [[1994] O.J. No. 813 (QL)], at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v. Elrick, [1983] O.J. No. 515 [(QL)] (H.C.), at para. 14. See also Stark, [[1994] O.J. No. 406 (QL)], at para. 74; R. v. Lin, [1995] B.C.J. No. 982 [(QL)] (S.C.), at para. 34 [summarized 27 W.C.B. (2d) 199]. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
The appellant submitted that the test requires a demonstration of “real likelihood” of bias, in the sense that bias is probable, rather than a “mere suspicion”. This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95:
I can see no real difference between the expressions found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias”, or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. [Emphasis added.]Nonetheless the English and Canadian case law does properly support the appellant’s contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not enough.. . .
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high.
. . .[Italics added]
28. In my view, the high threshold required for a finding of reasonable apprehension of bias has not been met. The allegation is simply too remote. The fundamental nature of the issue before the appeal panel was about benefits under the Act. It was not about politics. The political aspect to the case is merely incidental to the benefits issue.
29. While political donations may be made for any number of reasons, I assume for this analysis that these donations demonstrate that Ms Tavares supports the New Democratic Party. Having said that, a reasonable and informed person would know that Ms Tavares is appointed by The Lieutenant Governor in Council. Viewing these appointments realistically and practically, a reasonable and informed person would accept that some, if not many, of the persons appointed support the political party which appointed them and that they may show that support by making donations to that party. Nonetheless, this support cannot be assumed to detract from their integrity to perform their duties as commissioners pursuant to their oath of office.
30. The decision of the panel is not the decision of Ms Tavares. Two commissioners participated in the unanimous decision, in addition to Ms Tavares. It is the decision of each commissioner. In my view, this is important when the court is asked to nullify a decision of an adjudicative tribunal. I find support for this conclusion in the comments of the Supreme Court of Canada in Wewaykum, where the court noted that although a judgment is written by one judge, it “express[es] the individual views of each and every judge who signs them, and the collective effort and opinion of them all” (at para. 92). The court wrote about the effect of the unanimous judgment (at para. 93):
… In the circumstances of the present case, even if it were found that the involvement of a single judge gave rise to a reasonable apprehension of bias, no reasonable person informed of the decision-making process of the Court, and viewing it realistically, could conclude that it was likely that the eight other judges were biased, or somehow tainted, by the apprehended bias affecting the ninth judge.
31. Counsel for the appellant made numerous references to instances where judges have recused themselves in circumstances “less compelling than the circumstances here.” The response to that argument is found in Wewaykum. The court wrote (at para. 78):
… [I]n circumstances such as the present one, where the issue of disqualification arises after judgment has been rendered, rather than at an earlier time in the proceedings, it is neither helpful nor necessary to determine whether the judge would have recused himself or herself if the matter had come to light earlier. There is no doubt that the standard remains the same, whenever the issue of disqualification is raised. But hypotheses about how judges react where the issue of recusal is raised early cannot be severed from the abundance of caution that guides many, if not most, judges at this early stage. This caution yields results that may or may not be dictated by the detached application of the standard of reasonable apprehension of bias. In this respect, it may well be that judges have recused themselves in cases where it was, strictly speaking, not legally necessary to do so. Put another way, the fact that a judge would have recused himself or herself ex ante cannot be taken to be determinative of a reasonable apprehension of bias ex post.
32. While the appellant focussed his argument on the political donations made by Ms Tavares, he asked that the court consider them in light of the fact that she was appointed and re-appointed as deputy chief commissioner with a full-time salary. In this regard, I find Muscillo instructive, and I disagree with the appellant that Muscillo does not assist the analysis required for this appeal. While the appellant did not directly challenge the panel’s decision on the basis of the pecuniary interest of Ms Tavares, he did so indirectly by referring throughout the submissions to her full-time salary as deputy chief commissioner. As in Muscillo, the allegation of pecuniary bias is simply too remote and speculative.
Conclusion 33. The motions judge was correct to dismiss the appellant’s application. The allegation of reasonable apprehension of bias is too remote and speculative; it is not substantial enough to undermine the integrity of Ms Tavares and certainly does not undermine the integrity of the panel.
34. The appeal is dismissed with costs.
______________________ J.A.I agree:_______________ J.A.I agree:_______________ J.A.
Her mother, Mary Ann Schopp, told the Chronicle last year that McBroom immediately reported that incident to a female supervisor who did nothing in response. Kent was charged with abusive sexual conduct for improperly touching McBroom without her permission. In March 2007, she alleged that Kent physically touched her under her clothing, put his mouth on her breast and made obscene comments to her in his chambers.
