[2001] 3 F.C. 605
A-838-99
2001 FCA 97
The Minister of Citizenship and Immigration (Appellant)
v.
Victor Antonio Reyes Ahumada (Respondent)
Indexed as: Ahumada v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Noël, Evans and Sharlow JJ.A.— Vancouver, February 9; Ottawa, April 2, 2001.
Administrative law — Judicial review — Certiorari — Appeal from decision allowing application for judicial review of dismissal of refugee claim, on ground of reasonable apprehension of bias — Member of CRDD panel dismissing refugee claim on temporary leave of absence from position as appeals officer with Enforcement Branch, Citizenship and Immigration — Test for bias in independent adjudicative tribunal whether reasonable person, reasonably informed of facts and viewing matter realistically, practically, having thought matter through, would think it more likely than not tribunal biassed — Although such “reasonable person” not synonymous with losing party, Court should not lose sight of perspective of unsuccessful refugee claimant — Minister’s role in refugee determination process such that cases holding employment relationship between tribunal member, party may give rise to reasonable apprehension of bias, relevant in principle — Informed, reasonable bystander might think serious possibility Board member might be influenced by how decision would be regarded within Enforcement Branch, repercussions for career — Evidence of improper use of perspective not general requirement to prove reasonable apprehension of bias — Finding not frustrating Board’s ability to discharge statutory functions.
Citizenship and Immigration — Judicial review — Appeal from decision allowing application for judicial review of dismissal of refugee claim, on ground of reasonable apprehension of bias — Member of CRDD panel dismissing refugee claim on temporary leave of absence from position as appeals officer with Enforcement Branch, CIC — Given Minister’s role in refugee determination process (detecting, opposing claims believes should be denied), cases holding employment relationship between tribunal member, party may give rise to reasonable apprehension of bias, relevant in principle — Cases relied on by Minister distinguished, doubted — Immigration Act entrusting adjudicative function to tribunal independent of agency responsible for enforcement to avoid danger of enforcement-minded adjudication — Informed, reasonable bystander might think serious possibility such CRDD member might be influenced by how decision would be regarded within Enforcement Branch, repercussions for career — Finding not frustrating Board’s ability to discharge statutory functions — Not unreasonable to require those closely connected with discharge of CIC’s enforcement functions to relinquish employment upon appointment to CRDD.
This was an appeal from the Motions Judge’s decision allowing the respondent’s application for judicial review. Rouleau J. certified the following question for appeal: would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of CIC? A member of the CRDD panel that dismissed the respondent’s refugee claim was on a temporary leave of absence from Citizenship and Immigration Canada (CIC), where she had worked as an appeals officer in the Enforcement Branch prior to appointment to the Board. The Immigration Act requires that notice be given to the Minister of all refugee hearings before the CRDD, and authorizes the Minister to be represented at any stage of a case, prior to the CRDD rendering its decision, in order to present evidence for or against the claimant. Generally, decisions to intervene are made by officials acting in the name of the Minister, on the advice of appeals officers. Rouleau J. found that there was a reasonable apprehension of bias.
Held, the appeal should be dismissed.
Since the record did not reveal the range of functions performed by an immigration officer in the Enforcement Branch, other than acting as an appeals officer, the question on appeal was limited to whether a person who is on a leave of absence from a position as an appeals officer in the Enforcement Branch of CIC is thereby disqualified by bias from sitting as a member of the CRDD.
The test for bias in an independent adjudicative tribunal such as the CRDD, is whether a reasonable person, who is reasonably informed of the facts, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that the tribunal was biassed. The precise content of the standard of impartiality is determined by considering, in its entirety, the particular decision-making context to which the duty applies. The composition of administrative boards can, and should, reflect all aspects of society and should not for this reason be regarded as prone to bias. The reasonable person whose view of the matter is determinative of the existence of bias is not synonymous with the losing party in the process. But when a reviewing court constructs the fictional reasonable person, it should not altogether lose sight of the perspective of the unsuccessful refugee claimant. It has been said that the most important person in a hearing room is he who has just lost a cause. While the loser may be bitter, what matters most is that the outcome was — and was seen to have been — reached impartially and under a fair procedure.
The basis of any possible apprehension of bias was that the panel member might believe that, when she returned to her duties with CIC, she might be rewarded or punished depending on whether her decisions had conformed to CIC’s view. The Minister submitted that most refugee claims are determined on the basis of a non-adversarial process, so that cases holding that a person was disqualified from adjudicating a dispute by virtue of his relationship to a party were inapplicable. The fact that the Minister was not a party to the appellant’s claim was not, however, determinative. Even though not technically a party to hearings in which she elects not to intervene, the Minister is always waiting in the wings ready to oppose a claim that raises issues that are of sufficient public interest or importance to warrant Ministerial intervention. The Minister’s role in the refugee determination process is primarily oriented towards detecting and opposing claims that the Minister or her officials believe should not be allowed. Accordingly, cases holding that an employment relationship between a member of an adjudicative tribunal and a party may give rise to a reasonable apprehension of bias were in principle relevant. The suggestion that an employee of CIC would only be disqualified from sitting on a CRDD panel when the Minister intervened would enable the Minister to ensure the exclusion of the employee from the panel by exercising the power to intervene. To enable the Minister to so influence the composition of a panel would clearly compromise the CRDD’s independence from CIC in a manner inconsistent with the scheme of the Act.
The Minister relied upon Mohammad v. Canada (Minister of Employment and Immigration) but that was of little assistance because it was a Charter case challenging the constitutional validity of the statutory scheme. Courts approach an attack on the validity of a statutory scheme approved by Parliament with greater judicial restraint than they do a case dealing with the question whether an individual’s membership in a tribunal raises a reasonable apprehension of bias, which involves only the application of well-established principles of the common law duty of fairness. Further, the statutory scheme in place when Mohammad was decided was significantly different from the current Immigration Act. As Mohammad predated cases in which statutory provisions respecting administrative adjudication have been impugned before the Supreme Court of Canada for failing to ensure institutional independence and impartiality, there was some doubt whether it would still be decided the same way.
The allegation was that officials responsible for enforcing the law tend to view matters from an enforcement perspective. It is precisely to avoid the danger of enforcement-minded adjudication that the Immigration Act entrusts adjudicative functions to a tribunal that is independent of the agency responsible for enforcement. In the absence of a controlling precedent, the factual situation had to be assessed in its entirety in order to determine whether the relationship between the panel member and CIC gave rise to a reasonable apprehension of bias. As an appeals officer on temporary leave from the Branch of CIC that advises the Minister on whether an intervention is appropriate and represents the Minister when the Minister does intervene, the panel member might well be mindful of how her colleagues were likely to view her decisions as a CRDD member and what effect her decisions might have on her career when she returned to CIC, particularly in cases that raised issues of law or fact that were not case specific and on which officials in the Enforcement Branch had a view. The informed, reasonable bystander would likely think that there was a serious possibility that the panel member might well be influenced by how her decision would be regarded within the Enforcement Branch, and what repercussions this might have for her on her return. The oath of office taken by Board members is not adequate to satisfy a reasonable person otherwise. Employees occupy a sufficiently vulnerable position that a reasonable person might well think that their decisions were likely to be influenced by extraneous considerations connected with their employment status.
While in cases involving allegations of “attitudinal bias” it may be necessary for the party alleging bias to establish that a decision-maker had improperly used her perspective on an issue, this is not a general requirement for proving a reasonable apprehension of bias.
Finally, a finding that employees in CIC who occupy positions as appeals officers are disqualified from membership on the CRDD will not frustrate the Board’s ability to discharge its statutory functions. It is not unreasonable to require that, on appointment to the Board, those closely connected with the discharge of CIC’s enforcement functions must relinquish their employment.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 61(1) (as am. by S.C. 1992, c. 49, s. 50), 69.1(3) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), (5)(a)(ii) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 83(1) (as am. idem, s. 73).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Ellis-Don Ltd. v. Ontario (Labour Relations Board) (2001), 194 D.L.R. (4th) 385; 265 N.R. 2 (S.C.C.); Bethany Care Centre v. United Nurses of Alberta, Local 91 (1983), 50 A.R. 250; 5 D.L.R. (4th) 54; 29 Alta. L.R. (2d) 3; 6 Admin. L.R. 80; 84 CLLC 14,032 (C.A.).
CONSIDERED:
Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363 (1988), 55 D.L.R. (4th) 321; 91 N.R. 121 (C.A.).
DISTINGUISHED:
Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552 (1988), 52 D.L.R. (4th) 681; 31 Admin. L.R. 123; 22 F.T.R. 80; 87 N.R. 389 (C.A.); R. v. S. (R.D.), [1997] 3 S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 1 Admin. L.R. (3d) 74; 118 C.C.C. (3d) 353; 10 C.R. (5th) 1; 218 N.R. 1.
REFERRED TO:
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995), 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1.
AUTHORS CITED
Citizenship and Immigration Canada. Immigration Manual: Enforcement and Control (EC). “The Minister’s Role at CRDD Hearings”, Section 18, Chapter EC 5; IAD Appeals and CRDD Refugee Determination Hearings.
APPEAL from the Motions Judge’s decision allowing the respondent’s application for judicial review ([1999] F.C.J. No. 1851 (T.D.) (QL)) on the ground that a reasonable apprehension of bias was created by the fact that a member of the Convention Refugee Determination Division that dismissed the appellant’s refugee claim was an employee on temporary leave of absence from her position as an appeals officer in the Enforcement Branch of Citizenship and Immigration. Appeal dismissed.
APPEARANCES:
Kevin Lunney for appellant.
Karen O’Connor Coulter for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for appellant.
Karen O’Connor Coulter, Vancouver, for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] Victor Antonio Reyes Ahumada applied for refugee status in Canada in 1996, but the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) dismissed his claim.
[2] Kim Workun was a member of the two-person panel of the CRDD that decided Mr. Reyes’ case. She is an employee with Citizenship and Immigration Canada (CIC), where she worked as an appeals officer in the Enforcement Branch before she was appointed to the Board. Since her appointment, she has been on a temporary leave of absence from CIC.
[3] The question to be decided in this appeal is whether Ms. Workun’s continuing employment with CIC gives rise to a reasonable apprehension of bias that warrants the Court’s setting aside the CRDD’s dismissal of Mr. Reyes’ refugee claim.
[4] Rouleau J. allowed Mr. Reyes’ application for judicial review ([1999] F.C.J. No. 1851 (T.D.) (QL)), quashed the CRDD’s decision and remitted the matter to a differently constituted panel, saying (at paragraph 11):
One of the functions of an Appeals Officer is to represent the Minister in quasi-judicial proceedings before the Convention Refugee Determination Division, including hearings to determine refugee claims. While retaining this employment status, albeit on a temporary leave of absence, Ms. Workun is at the same time sitting as a member of the very tribunal before which she appears on behalf of the Minister. In my view, those facts are capable of leading a reasonable person to have serious doubts as to the impartiality of the decision-maker and the decision-making process.
[5] He certified the following question for appeal under subsection 83(1) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 49, s. 73]:
Would a reasonable apprehension of bias be created by the fact that a member of the Convention Refugee Determination Division of the Immigration and Refugee Board is an employee on leave of absence from a position as an immigration officer in the Enforcement Branch of Citizenship and Immigration Canada?
The Minister has appealed to this Court on the ground that Rouleau J. erred in law in finding that a reasonable apprehension of bias arose on the facts of this case.
B. BACKGROUND
[6] After the end of the first day of the hearing of Mr. Reyes’ refugee claim, counsel learned of Ms. Workun’s employment with CIC. When the hearing resumed, he made a motion requesting that Ms. Workun recuse herself from the panel because her continuing employment gave rise to a reasonable apprehension that she would not adjudicate Mr. Reyes’ claim impartially. In a reasoned ruling, Ms. Workun concluded that no reasonable apprehension of bias arose on the facts, dismissed the motion and refused to step down.
[7] The factual record on which the allegation of bias is based is somewhat sparse. It is acknowledged that Ms. Workun is an employee with CIC who had worked in Vancouver as an appeals officer, and that she was given a temporary leave of absence on her appointment to the Immigration and Refugee Board as a member of the CRDD based in Vancouver.
[8] In the absence of further evidence on the nature of Ms. Workun’s contractual relationship with CIC, I assume only that, as a person on a temporary leave of absence, Ms. Workun no longer performs her duties with CIC, but that she has a right to return to her previous position as an appeals officer when her appointment to the Board expires.
[9] However, the record is unclear in two significant respects. First, there are few details of Ms. Workun’s ongoing relationship with CIC. In his capacity as Chair of the Refugee Committee of the Immigration Section of the British Columbia Branch of the Canadian Bar Association, Alistair Boulton attempted to obtain more information about the precise employment status of Ms. Workun, from both CIC and the Immigration and Refugee Board, and through a request under the Access to Information Act, R.S.C., 1985, c. A-1.
[10] He met with little success. While it has been confirmed that Ms. Workun is an employee with CIC, CIC has taken the position that further information is personal in nature and will not be disclosed without Ms. Workun’s consent. The record does not indicate whether Ms. Workun was asked in connection with Mr. Reyes’ case to supply information about her precise status with CIC. However, it is reasonable to infer from the record that she had ample opportunity throughout this proceeding to reveal the precise nature of her employment status, but has chosen not to do so.
[11] Hence, it is not clear whether, for example, she had the right to continue to make pension contributions or to receive other employment benefits during her leave, or whether a person who is described as being on a temporary leave of absence while she serves on a federal administrative tribunal is still in receipt of her salary. Although I expect that the answer to this latter question is no, the record does not state that she is on an unpaid temporary leave of absence.
[12] The second aspect on which the record is unclear is relevant to the certified question. On the basis of submissions from counsel, Rouleau J. defined the question by asking whether the fact that a CRDD member is on a leave of absence from her position as an immigration officer in the Enforcement Branch of Citizenship and Immigration Canada gives rise to a reasonable apprehension of bias.
[13] However, the record does not reveal the range of functions performed by an immigration officer in the Enforcement Branch of CIC, other than acting as an appeals officer, the position occupied by Ms. Workun. The duties performed by appeals officers include advising on whether the Minister should intervene in a proceeding before the CRDD and representing the Minister at the hearing when the Minister does appear.
[14] In view of the uncertainty about what jobs are covered by the certified question as framed, I would prefer to deal with the appeal on the narrower basis of the facts of this case. That is, I would limit the question to whether a person who is on a leave of absence from a position as an appeals officer in the Enforcement Branch of Citizenship and Immigration Canada is thereby disqualified by bias from sitting as a member of the CRDD.
[15] Another important aspect of the factual background of this case is the Minister’s role in the refugee process. Most hearings before the CRDD are not adversarial in nature, in the sense that the Minister typically does not appear as a party. A significant element of the procedural design of the present system for determining refugee claims is to make it clear that the Minister generally has no interest in opposing individual refugee claims. An employee of the Board, a refugee claims officer, adduces evidence at hearings and questions claimants on behalf of the CRDD to test the factual basis of their claims.
[16] However, the Immigration Act requires that prior notice be given to the Minister of all refugee hearings before the CRDD (subsection 69.1(3) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60]) and authorizes the Minister to be represented at any stage of a case, prior to the CRDD’s rendering its decision, in order to present evidence for or against the claimant (subparagraph 69.1(5)(a)(ii) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60]). This provision also states that, with the consent of the panel, the Minister may question the claimant and any witnesses, and make submissions; however, no consent is required where, in the Minister’s opinion, a case involves an exclusion from the Convention or the cessation of refugee status.
[17] Generally, of course, decisions to intervene are made, not by the Minister personally, but by officials acting in the name of the Minister, on the advice of appeals officers. The process is explained in Section 18, “The Minister’s Role at CRDD Hearings”, of Chapter EC 5: IAD Appeals and CRDD Refugee Determination Hearings in the Enforcement and Control (EC) component of the Immigration Manual, which is published by CIC for the guidance of officials and the public. Subparagraph 18.4 provides examples of cases warranting the intervention of the Minister, including exclusion from the Convention, serious criminality, cases that may affect Canada’s relations with another country and cases likely to be of interest to the news media because of their controversial nature.
[18] A Minister can only decide whether to intervene if she or he is aware of refugee claims coming before the CRDD and monitors their progress. Hence, in addition to receiving a pre-hearing notice, the Minister also receives a copy of the Personal Information Form, a document issued by the Immigration and Refugee Board that all claimants must complete by setting out the basis of their claim and providing other relevant information.
C. ANALYSIS
(i) Bias: the Legal Test
[19] It is well established that the test for bias in an independent adjudicative tribunal, such as the CRDD, is whether a reasonable person, who is reasonably informed of the facts, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal was biassed: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at pages 394-395.
[20] It was suggested by counsel that Rouleau J. had erred by formulating the test too stringently, when, for example, he said (at paragraph 9) that “the mere suggestion” of a breach of the duty of fairness was sufficient to justify a court in setting aside a decision. However, counsel did not press this point strongly in oral argument and, having read Rouleau J.’s reasons in their entirety, I am in no doubt that the learned Judge applied the correct test.
[21] Nonetheless, three points may usefully be made in this context about the test of bias to be applied. First, like the content of participatory rights imposed by the duty of fairness, the standard of impartiality to which decision-makers are held is variable and, in any given case, its precise content is determined by considering, in its entirety, the particular decision-making context to which the duty applies: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pages 636-639.
[22] Second, as Cory J. also said in the Newfoundland Telephone case (supra, at page 635), the composition of administrative boards “can, and often should, reflect all aspects of society” and should not for this reason be regarded as prone to bias. Because it was apposite to the facts of that case, he added (ibid.): “Boards need not be limited solely to experts or to bureaucrats”. However, I do not think that this latter comment sheds any light on the present case.
[23] Third, the reasonable person whose view of the matter is determinative of the existence of bias is not synonymous with the losing party in the process. Thus, the test to be applied in this case is not whether a reasonable, but unsuccessful refugee claimant would have thought that Ms. Workun would be biassed because she continued to be an employee with CIC.
[24] However, when a reviewing court constructs the fictional reasonable person and determines how much information and understanding should be imputed to her for the purpose of the bias test, it should not altogether lose sight of the perspective of the unsuccessful refugee claimant. For, as Binnie J. recently said in Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, at paragraph 59:
It is occasionally observed that the most important person in the hearing room is the party that has just lost a cause. Whatever may be the loser’s bitterness or incredulity at the outcome, the overriding imperative is that the outcome was-and was seen to be-reached impartially under a fair procedure.
(ii) The Apprehended Bias
[25] Rouleau J. did not spell out precisely how, in the eyes of a reasonable person, Ms. Workun’s ongoing employment was more likely than not to be an improper influence on the way that she would decide the cases that came before her as a member of the CRDD.
[26] However, in the course of oral argument, counsel appeared to agree that the underlying concern was the suspicion that Ms. Workun would tailor her decisions, and her reasons, in a way that she believed would please senior officials at CIC. In other words, the basis of any possible apprehension of bias was said to be that Ms. Workun might believe that, when she returned to her duties with CIC, she might be rewarded or punished depending on whether her decisions had conformed to CIC’s view.
[27] Of course, counsel for the Minister vigorously denied that a reasonable person who was well-informed of the facts would seriously think that Ms. Workun’s employment relationship with CIC made it more likely than not that she would be biassed.
(iii) The Minister’s Role in the Refugee Determination Process
[28] The first submission made on behalf of the Minister in this appeal was that most refugee claims heard by the CRDD, including the one from which this litigation has arisen, are determined on the basis of a process that is not adversarial in nature. Hence, cases holding that a person is disqualified from adjudicating a dispute by virtue of his or her relationship to a party are simply inapplicable here.
[29] I am not persuaded by this argument. While it is true that, as with most refugee claims, the Minister was not a party to the appellant’s claim, this is not determinative. The categories of relationships and conduct that may give rise to a reasonable apprehension of bias are never closed, but must respond to new fact situations and institutional arrangements in order to ensure the continuing vitality of the essential values underlying this aspect of the duty of fairness.
[30] As the Act and the Immigration Manual make clear, the Minister is a potential party to every hearing before the CRDD and may intervene at any stage of the process before the decision is made. In order to exercise her participatory rights, the Minister must, through her officials, including appeals officers, keep a watchful eye on the cases coming before the CRDD.
[31] As for the role played by the Minister when she decides to intervene, the provisions of the Immigration Manual, and appeals officers’ location within the Enforcement Branch, confirm what one would have expected. That is, the Minister’s representative appears before the CRDD in order to represent the public interest in opposing a claim in order to keep the claimant out of Canada. It is normally the function of the refugee claims officer to ensure that the CRDD is aware of any favourable evidence that has not already been presented by the claimant.
[32] In other words, even though not technically a party to hearings in which she elects not to intervene, the Minister is no stranger to the process, but is always waiting in the wings ready to oppose a claim that raises issues that, guided by the Immigration Manual, officials believe are of sufficient public interest or importance to warrant Ministerial intervention in order to ensure that the panel has before it all the material required to enable it make a correct determination of the claim.
[33] In my opinion, the role of the Minister in the refugee determination process is primarily oriented towards detecting and opposing claims that the Minister or her officials believe should not be allowed. Accordingly, cases holding that an employment relationship between a member of an adjudicative tribunal and a party may give rise to a reasonable apprehension of bias, such as Bethany Care Centre v. United Nurses of Alberta, Local 91 (1983), 50 A.R. 250 (C.A.), are in principle relevant here.
[34] Further, to suggest that an employee of CIC would only be disqualified from sitting on a CRDD panel when the Minister intervened would enable the Minister to ensure the exclusion of the employee from the panel by exercising the power to intervene, a power that is exercisable at any stage of the hearing process. In my opinion, to enable the Minister in this way to influence the composition of a panel would clearly compromise the CRDD’s independence from CIC in a manner that would be inconsistent with the scheme of the Act.
(iv) Employment Relationship between Member and Department
[35] Counsel’s principal argument was that, in the absence of other evidence, the fact that Ms. Workun is an employee with CIC, on leave from her duties as an appeals officer, does not give rise to a reasonable apprehension of bias, even in cases where the Minister is represented at a hearing before the CRDD in opposition to a claim.
[36] Counsel submitted that the Minister’s only interest in the outcome of any refugee claim is that it is decided correctly, in fact and in law. Hence, the presence on the panel of an employee with CIC cannot constitute bias, because it would not please the Minister if, as a member of the CRDD panel, the employee wrongly rejected a genuine claim. He argued also that, in determining the reasonableness of any apprehension of bias, the Court should take into account the oath of office taken by Board members to perform their duties as Board members truly and faithfully and to the best of their ability, and to adhere to the Code of Conduct prescribed for them.
(a) The precedents
[37] In support of his position, counsel relied on two decisions of this Court which I shall now consider.
Mohammad v. Canada (Minister of Employment and Immigration)
[38] Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363 (C.A.) involved a challenge under section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] to the institutional independence of immigration adjudicators, before they became a Division of the Immigration and Refugee Board. The Court held that no reasonable apprehension of bias arose from the fact that adjudicators and the case presenting officers who appeared before them on behalf of the Minister at deportation inquiries were both employees with CIC, and were ultimately subject to the same managerial hierarchy. Nor was it a ground for disqualification that case presenting officers sat as adjudicators on an ad hoc basis, or that adjudicators were sometimes assigned temporarily to serve as immigration appeals officers or as acting visa officers.
[39] After carefully describing the institutional structures in place, including attempts made by CIC de facto to separate adjudicators from case presenting officers, the Court concluded (at page 398) that:
… the statutory scheme relating to adjudicators under the Immigration Act, 1976 meets the requirement articulated in Valente [v. The Queen et al., [1985] 2 S.C.R. 673] that the perception of independence and impartiality in a tribunal must include a perception that the tribunal enjoys the essential guarantees of judicial independence.
[40] If, counsel submitted, such an obvious mingling of adjudicative and prosecutorial roles passed Charter scrutiny in Mohammad, then the much more tenuous connection between Ms. Workun and CIC that exists in this case cannot possibly give rise to a reasonable apprehension of bias.
[41] In my opinion, Mohammad, supra, is of little assistance to the Minister’s position. First, Mohammad, supra, was a Charter case challenging the constitutional validity of the statutory scheme. It is a very different matter, to conclude that, by virtue of her continuing employment in CIC, Ms. Workun is disqualified by the common law duty of impartiality from serving as a member of the CRDD. Courts can be expected to approach an issue with greater judicial restraint when it involves an attack on the validity of a statutory scheme approved by Parliament, than where, as here, it involves only the application of well-established principles of the common law duty of fairness to an individual’s membership in a tribunal.
[42] Further, if the adjudicator who heard Mr. Mohammad’s case was disqualified for lack of independence, then so were all adjudicators. Even if Ms. Workun is not the only member of the CRDD who is also an employee of CIC, it was not suggested that, were she found to be disqualified for bias, the CRDD’s ability to discharge its functions would be more than temporarily inconvenienced. Of course, if successful, the attack on Ms. Workun’s impartiality will prevent her, not only from hearing this case, but any other case as well. However, Ms. Workun could always prospectively remove the disqualification by resigning her position as an employee in CIC.
[43] Second, whether there has been a breach of the duty of impartiality must be determined in the context of the particular statutory scheme from which the issue arises. The statutory scheme in place when Mohammad, supra, was decided was significantly different from the current Immigration Act. In particular, although adjudicators, unlike other Board members, are still civil servants, they have been brought within the Board and now comprise its Adjudication Division. In contrast, under the previous law, Parliament had not created a separate institutional structure that provided the same degree of institutional separation of adjudicators from the Department.
[44] The Immigration and Refugee Board is structured to operate as an administrative tribunal with as much independence from its sponsoring Department as is ever found in the contemporary administrative justice system. Members of the Appeal Division and of the CRDD are appointed by the Governor in Council to hold office during good behaviour for a term not exceeding seven years: subsection 61(1) [as am. by S.C. 1992, c. 49, s. 50].
[45] Given the variable content of the requirement of impartiality, the Court in Mohammad, supra, may well have allowed much more deviation from the judicial model of institutional design than would be appropriate in a statutory context in which the impugned decision-maker is a member of an independent administrative tribunal.
[46] Third, Mohammad, supra, predates the cases in which statutory provisions respecting administrative adjudication have been impugned before the Supreme Court of Canada for failing to ensure institutional independence and impartiality: see, in particular, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919. There must be some doubt, therefore, whether it would be decided the same way today as it was nearly 15 years ago.
Sethi v. Canada (Minister of Employment and Immigration)
[47] Counsel also relied on Sethi v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 552 (C.A.), where this Court held that the members of the former Immigration Appeal Board were not disqualified for bias because a Bill was before Parliament that proposed the abolition of the Board and the termination of its members’ appointment without compensation. The Minister had announced that not all the members of the Board would be appointed to the proposed Immigration and Refugee Board.
[48] It was argued in Sethi, supra, that reasonable people might think that, in order to improve their chances of an appointment to the new Board, members of the existing Board would render decisions that were favourable to the Minister. Reversing the decision of the Trial Division, the Court found no reasonable apprehension of bias on these facts.
[49] Counsel referred, in particular, to the following passage (at pages 561-562) in the reasons given by Mahoney J.A.:
While the Minister is the party adverse in interest to [applicants and appellants] in proceedings before the Board, the Minister is also the person ultimately responsible for the administration of the Act in a manner that accords with the law. If the Minister opposes an application or appeal, it is because there is a genuine disagreement to be resolved by the Board, not because the Minister or the government, has an interest personal to the individual concerned. The Board knows all that and so does the informed, right-minded person. In my opinion, no informed right-minded person would conclude that members of the Board would, in fact, please the government if they decided that disagreement unfairly. Members of the Board, taken collectively, are well informed as to the administration and policy of the Act, and, I trust, right-minded. They would not think that such conduct would, in fact, please the government. [Emphasis added.]
[50] While this passage would seem to support the position taken on behalf of the Minister in the present appeal, it must be read in the context of the case. As the rest of the judgment makes clear, the Court was dealing with a very different situation from that before us.
[51] First, in considering whether a reasonable apprehension arose on the facts, Mahoney J.A. emphasized that it was always uncertain whether a Bill would be passed by Parliament in the form in which it was introduced, or whether it would be passed at all. Accordingly, it was unreasonable to think that members of the Board would shape their decisions on the assumption that the Bill as introduced would be enacted, or that the Minister would inevitably act on his announcement that not all members of the existing Board would necessarily be appointed to the new Board.
[52] Second, Mahoney J.A. noted “a more profound reason” (at page 562) for rejecting the bias argument based on the Minister’s announcement, namely that, if such announcements prevented a tribunal from operating because all its members were thereby tainted with bias, public debate would effectively be stifled. Again, unlike our case, the allegation of bias in Sethi, would, if successful, have disqualified all the members of the Board and would have had a highly disruptive effect on the administration of the Act.
[53] Third, in my opinion, the nub of the apprehension of bias in our case is the likely reaction to Ms. Workun’s decisions of her colleagues and, in particular, senior officials in the Enforcement Branch who might be her immediate superiors at the expiry of her period of leave. It is one thing to say that the Minister has no interest in the outcome of particular cases, but it is quite another to say the same of immigration officials who have front line responsibility for enforcing the Act by monitoring refugee claims coming before the CRDD, advising when the Minister should intervene and appearing at the hearing on behalf of the Minister to oppose a claim.
[54] The allegation is not, of course, that officials are anxious to subvert the Act by opposing refugee claims that they believe to be well founded. Rather, it is that officials responsible for enforcing the law, whether contained in a regulatory programme administered by an administrative agency, or in the criminal law, almost inevitably tend to view matters from an enforcement perspective. What may seem an unfounded claim to officials in the Enforcement Branch of CIC may appear in a very different light to members of the CRDD who have heard the claimant and considered all the material put before them at the hearing.
[55] It is precisely to avoid the danger of enforcement-minded adjudication that, like many statutory administrative schemes, the Immigration Act entrusts adjudicative functions to a tribunal that is independent of, and separate from, the agency responsible for enforcement.
(b) Situational analysis
[56] In the absence of a controlling precedent, the factual situation must be assessed in its entirety in order to determine whether the relationship between Ms. Workun and CIC gave rise to a reasonable apprehension that she would not decide cases on their merits with the necessary degree of impartiality. In my view, a reasonable person who was reasonably well-informed of the facts, had viewed the matter realistically and practically, and had thought it through, would entertain a reasonable apprehension that Ms. Workun was likely to be biassed.
[57] First, it is far from fanciful to think that, as an appeals officer on temporary leave from the branch of CIC that advises the Minister on whether an intervention is appropriate in a given case, and represents the Minister when the Minister does intervene, Ms. Workun might well be mindful of how her colleagues were likely to view her decisions as a CRDD member and what effect her decisions might have on her career prospects or opportunities when she returned to CIC.
[58] This might be particularly true in cases that raised issues of law or fact that were not case specific and on which officials in the Enforcement Branch had a view. Whether the Minister personally has an interest in the outcome of any given case is likely to be of much less concern to a member in the position of Ms. Workun than the views of her colleagues, especially her immediate superiors.
[59] Further, in cases where the Minister was represented at the hearing of a refugee claim, it seems to me almost indisputable that the informed, reasonable bystander would think that there was a serious possibility that Ms. Workun might well be influenced by how her decision would be regarded within the Enforcement Branch, and what repercussions this might have for her on her return.
[60] The oath of office taken by Board members may establish that members fully intend to discharge their statutory duties. However, it is not adequate to satisfy a reasonable person that Ms. Workun would be impervious to the kinds of constraints and pressures to which she might well feel subject by virtue of her status as an employee in the CIC, given the nature of the position that she occupied within it and the fact that she might be expected to return to it on the expiry of her term of office as a CRDD member.
[61] Employees occupy a sufficiently vulnerable position that a reasonable person might well think that their decisions were likely to be influenced by extraneous considerations connected with their employment status. As an appeals officer, Ms. Workun might be expected by her colleagues and superiors to render decisions that were, from their perspective, properly informed and “correct”. “Erroneous” decisions by Ms. Workun might well be thought to be likely to blight her career on her return from the CRDD to the CIC. For this reason, it is relevant that Ms. Workun was employed in the Enforcement Branch as an appeals officer and not, say, as a janitor.
(v) Evidential Basis
[62] Counsel for the Minister submitted that the party alleging a reasonable apprehension of bias must provide a proper evidential basis for the allegation, over and beyond proving the existence of the ongoing employment relationship between Ms. Workun and CIC. While in some cases involving allegations of “attitudinal bias”, such as that considered in R. v. S. (R.D.), [1997] 3 S.C.R. 484, it may be necessary for the party alleging bias to establish that a decision-maker had improperly used her perspective on an issue, this is not a general requirement for proving a reasonable apprehension of bias.
[63] I know of no authority for the proposition that, where an allegation of bias is based on the relationship between a tribunal member and a party or, as here, a person in an analogous position, a reviewing court is not entitled to determine on the basis of the relationship alone whether it gives rise to a reasonable apprehension of bias. I would only add that, while I have concluded that a reasonable apprehension of bias arose on the basis of the admitted facts about Ms. Workun’s employment status with CIC, her refusal to disclose further details about her precise status did nothing to dispel the suspicion that she was likely to be biassed.
(vi) Administrative Disruption
[64] Finally, a finding that employees in CIC who occupy a position of the kind occupied by Ms. Workun are disqualified from membership of the Board will not frustrate the ability of the Board to discharge its statutory functions. No doubt Ms. Workun brought to her duties as a Board member a valuable wealth of experience and knowledge about the Act and its administration, and a familiarity with the processes of the CRDD, that many members do not have on their appointment.
[65] However, in my opinion, this knowledge and experience would be purchased at too high a price: the diminution of public confidence in the impartiality of Board members. Employees with CIC are not the only repositories of this kind of expertise. Moreover, if it is decided that particular CIC employees would make excellent Board members, it is not unreasonable to require that, on their appointment, those closely connected with the discharge of CIC’s enforcement functions must relinquish their employment.
D. CONCLUSION
[66] For these reasons, I would dismiss the appeal with costs.
Noël J.A.: I agree.
Sharlow J.A.: I agree.