Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SAMPATH ASELA K. EDIRISINGHE ARRACHCH
and GANGA ISHADI DODANGODA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application raises the question of whether a reasonable apprehension of bias may yet arise where a tribunal attempts to deal with “forum shopping” by counsel in a fair and impartial manner.
[2] The applicants are citizens of Sri Lanka and fled that country after allegedly suffering arbitrary arrest, detention, harassment and persecution at the hands of the police. They arrived in Canada on October 4, 2002 and made a claim for refugee protection.
[3] Their hearing before the Immigration and Refugee Board was originally scheduled for April 24, 2003 in Montreal. On the day of the hearing, Mr. Arrachch was ill with the flu. Counsel attended on behalf of the applicants with a medical note and appeared before Board member Manno who accepted the note and adjourned the hearing.
[4] Prior to the date of their rescheduled hearing, the applicants retained new counsel, Maître Dan Bohbot. The hearing commenced on February 5, 2004. At the outset, the applicants and Maître Bohbot discovered that the presiding member was not Mr. Manno as expected, but Mr. Sajjad Rhandawa.
[5] Maître Bohbot was upset at this, according to the applicants, and told them that Mr. Rhandawa had a lower acceptance rate for Sri Lankan refugee claimants than the average for Montreal Board members. He told his clients that they would not get a fair hearing by this Board member. They say that this made them anxious and fearful for their prospects at the hearing.
[6] Maître Bohbot, as he was entitled to, then brought a motion that the member recuse himself on the ground of bias and past history between counsel and the member. Counsel noted that he had objected to the member presiding on seven prior occasions and written a letter of complaint to the Minister of Citizenship and Immigration, a copy of which had been provided to the member. He stressed that his objection was not in relation to the member’s behaviour in the hearing room which had always been impeccable. He stated, at pages 1217-1218 of the Certified Tribunal Record, that his reasoning was as follows:
The board member has a negative bias towards refugee claimants shown by the statistics. If a board member has a positive bias towards claimants, as some other board members in Montreal have, it doesn’t cause a prejudice for the claimants since claimants as a result would be accepted as “Convention refugees”. But a negative bias has a serious consequence on claimants.
[7] The member, Mr. Rhandawa, responded to the motion by initially noting that the choice of panel members for hearings was up to the Board and not applicants or their counsel. He commented briefly on the difficulty of relying on statistics to evaluate decision making and referred, somewhat obliquely, to the test established by the jurisprudence for a reasonable apprehension of bias.
[8] Had the member simply denied the motion at that stage and moved on with the hearing that may have been the end of the matter. However, after counsel stated that he had no response to make to the member’s comments, the member, unfortunately, chose to go on for another four pages of transcript to elaborate upon his views that the recusal motion was unfounded. In doing so, he revisited counsel’s prior objections and complaint, observing at one point (p.1221 of the Certified Tribunal Record) that counsel “was creating a fear in the minds of the claimants” by his statements and opposition to certain panels. The member took a break following these comments and, upon returning, adjourned the proceedings recognizing that it was unlikely they would be concluded that day.
[9] To this point, all of the documentation in the matter had been prepared in English, an English hearing had been requested by the applicants and the aborted February 5, 2004 hearing was conducted in English with a Sinhala interpreter present to assist the applicants. Prior to the resumption of the hearing on May 27, 2004, in accordance with s.12 of the IRB Rules of Procedure, Maître Bohbot notified the Board that his clients wished the continuation of the proceedings to be conducted in French. The Board arranged for two interpreters to be present on that date, to translate from English to French and from French to Sinhala.
[10] At the outset of the proceedings on May 27, 2004 Maître Bohbot raised an objection to Mr. Randhawa hearing the matter pursuant to sections 16 of the Official Languages Act R.S.C, 1985, c. 31 (4th Supp.) as the member would be unable to preside over a hearing conducted in French without the assistance of an interpreter. This led to a prolonged exchange between the member, counsel, the refugee protection officer, the interpreters, and the applicants about the grounds for the motion, Maître Bohbot’s motives in bringing it, the legislative requirements and the applicants’ intentions. When asked directly, the applicants stated that they generally understood and spoke English but not French and wished the hearing to proceed.
[11] In the result, the Board member dismissed the objection and decided to proceed with the hearing relying, among other jurisprudence, upon the decision of the Federal Court of Appeal in Devinat v. Canada (Immigration and Refugee Board) [2000] 2 F.C. 212, (1999), 181 D.L.R. (4th) 441. I note that the Devinat case dealt with the requirement for the publication of final decisions by the IRB in both official languages under section 20 of the Official Languages Act and not with the issue raised before the tribunal in these proceedings. As it was not argued before me, I make no finding as to whether the proceedings complied with section 16 of the statute.
[12] In the course of the exchange over his objection, counsel stated the following, found at page 1148 of the Certified Tribunal Record:
Mr. Board Member, I think that, I feel that the tone of the remarks by the refugee protection officer and some of your comments during your decision that it feels some animosity towards me, and this as a (inaudible) the proceeding.
[13] Counsel’s inaudible comment was likely that the member’s alleged animosity toward him had tainted the proceeding. The member’s response, at pages 1150 and 1151 of the record, was first to defend the RPO’s comments. He went on to say this:
Now, the comment made by counsel also that he feels some animosity towards him, and feels the hearing, or the proceedings could be tainted …He made some comments that there is some animosity towards him causing the proceedings to be, possibly will be tainted. Now this is a repetitive comment from the counsel for the last six to nine months in front of this panel to recuse. This panel always has conducted itself professionally, ethically and with all due regards to the hearing procedures and has made no, never any negative comments towards the counsel. I always respected his right as a professional and the rights of the claimants. If he has a feeling of animosity, it is entirely his own feeling and not the panel.
[14] The proceedings were not completed on May 27, 2004 and were adjourned further to October 26, 2004. On that date, Maître Bohbot was not well and requested an adjournment by fax. The hearing resumed on April 4, 2005, at which time the applicants appeared with their present counsel who advised the panel that his clients preferred to proceed in English with Sinhalese interpretation. The hearing was completed on that date without further controversy.
[15] In a written decision dated July 19, 2005 the applicants were found to be neither convention refugees nor persons in need of protection. The Board’s reasons are extensive and the determination was ultimately made based on numerous adverse credibility findings.
ISSUE
[16] The issue in this case is whether the actions of the Board member lead to a reasonable apprehension of bias such that the decision should be set aside and remitted to another member for re-hearing.
STANDARD OF REVIEW
[17] A pragmatic and functional analysis is not required when the Court is assessing allegations of the denial of natural justice or procedural fairness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. The Court must instead examine the specific circumstances of the case and determine whether the Board in question observed the duty of fairness.
[18] Where a breach of fairness is found to result from a reasonable apprehension of bias, the standard is particularly demanding: Kozak v. Canada (Minister of Citizenship and Immigration); Smajda v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] F.C.J. No. 477 (QL).
[19] If the Court concludes there has been a breach of natural justice no deference is due and the decision of the Board must be set aside.
ANALYSIS
[20] An allegation of bias, actual or apprehended, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture or mere impressions of an applicant or counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard: Arthur v. Canada (Attorney General), 2001 FCA 223, (2001), 283 N.R. 346.
[21] I see no evidence of actual bias on the part of the member on the record of this case. I also have no doubt that the member attempted to deal with this matter in a professional and ethical manner, as he repeatedly stated. However, that is not the test for a reasonable apprehension of bias. The test is whether an informed person, viewing the matter realistically and practically and having thought the matter through to its conclusion, would think it more likely than not that the decision-maker would unconsciously or consciously not decide fairly. The grounds for apprehension must be substantial and the test does not relate to the very sensitive or scrupulous consciences: Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, (1976), 68 D.L.R. (3d) 716; Mahendran v. Canada (Minister of Employment and
Immigration) (1991), 134 N.R. 316, 14 Imm. L.R. (2d) 30 (F.C.A.); Newfoundland Telephone Co. v. Newfoundland (Bd. of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289.
[22] Counsel in this matter was clearly seeking not just a fair and impartial tribunal but one that would more likely be favourable to his clients as measured on a statistical basis. This was blatant forum shopping. It was open to the Board member to deal with that as he initially did at the outset of the proceedings but he let his frustration with counsel emerge then and on the subsequent hearing date over the transparent stratagem to remove him for non-compliance with official languages requirements.
[23] The member, on each occasion, should have stood back and dispassionately considered the effect this dispute with counsel was having on the hearing and how it would be perceived by an informed and reasonable observer. I am satisfied that such an observer would conclude that it was more likely than not that the claim would not be decided fairly in the circumstances. Neither the subsequent non-contentious conclusion of the hearing with fresh counsel, nor the member’s carefully prepared and extensive reasons, would cure that impression. Accordingly, this matter must be remitted for reconsideration by a differently constituted panel.
[24] No serious question of general importance was proposed and none is certified.
JUDGMENT
IT IS HEREBY ORDERED AND ADJUDGED that the application is granted and remitted for reconsideration by a differently constituted panel. No question is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4944-05
STYLE OF CAUSE: SAMPATH ASELA K. EDIRISINGHE
ARRACHCH and GANGA ISHADI
DODANGODA
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 27, 2006
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Robert I. Blanshay
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Asha Gafar
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SOLICITORS OF RECORD:
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ROBERT I. BLANSHAY Barrister & Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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