Bank of Montreal v. Brown et al., 2006 FC 503

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: February 07, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 503;(2006), 291 F.T.R. 71 (FC)

Bk. of Mtrl. v. Brown (2006), 291 F.T.R. 71 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. MY.004

Bank of Montreal (applicant) v. Debra Brown and The Attorney General of Canada (respondents)

(T-1667-04; 2006 FC 503)

Indexed As: Bank of Montreal v. Brown et al.

Federal Court

de Montigny, J.

April 21, 2006.

Summary:

Brown filed a complaint under the Canada Labour Code, alleging that she had been unjustly dismissed by the Bank of Montreal. An adjudicator found that the Bank did not have just cause to dismiss Brown. At the time of his appointment, the adjudicator was also acting as counsel for claimants in an action against the Bank of Montreal. The Bank applied for judicial review of the adjudicator's decision, alleging a reasonable apprehension of bias. The Attorney General of Canada was added as a respondent by reason of its role in appointing the adjudicator. The Attorney General moved to strike the application as against it.

The Federal Court struck out the application as against the Attorney General. The court also dismissed the application for judicial review of the adjudicator's decision.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - An adjudicator appointed pursuant to s. 242 of the Canada Labour Code found in favour of an employee on a complaint of unjust dismissal against the Bank of Montreal - At the time of his appointment, the adjudicator was also acting as counsel for claimants in an action against the Bank of Montreal - The Bank applied for judicial review of the adjudicator's decision, alleging a reasonable apprehension of bias - The issue of bias had not been raised at the hearing before the adjudicator - The Federal Court dismissed the application - The court found that there was a reasonable apprehension of bias - However, the court found that the Bank was aware of the adjudicator's conflict of interest, or at the very least, was negligent in not actively making further enquiries about the adjudicator's potential conflict of interest - Consequently, the Bank was now precluded from raising a reasonable apprehension of bias in seeking to quash the adjudicator's decision - See paragraphs 40 to 57.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 3354.3

Judicial review - General - Practice - Application - Limitation re orders sought - An adjudicator appointed by the Minister of Labour pursuant to s. 242 of the Canada Labour Code found in favour of an employee on a complaint of unjust dismissal against the Bank of Montreal - When he was appointed, the adjudicator was also acting as counsel for claimants in an action against the Bank of Montreal - The Bank applied for judicial review of the adjudicator's decision, alleging a reasonable apprehension of bias - The Attorney General of Canada was added as a respondent because of its role in appointing the adjudicator - The Federal Court struck the application as against the Attorney General - The Bank's Notice of Application was deficient where it did not challenge the Minister's decision to appoint the adjudicator, it sought no relief against the Attorney General, and it alleged no reviewable error by the Minister - This was also not a case to relax the principle in rule 302 of the Federal Courts Rules that an application for judicial review should be limited to a single order - The Minister's decision to appoint the adjudicator and the decision reached by the adjudicator were not a continuing process, but were two discrete decisions - See paragraphs 20 to 35.

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - [See Administrative Law - Topic 3354.3 ].

Labour Law - Topic 6037

Industrial relations - Complaints - Unjust dismissal - Judicial review - [See Administrative Law - Topic 3354.3 ].

Labour Law - Topic 6046

Industrial relations - Complaints - Adjudicators - Bias - [See Administrative Law - Topic 2088 ].

Labour Law - Topic 6046

Industrial relations - Complaints - Adjudicators - Bias - An adjudicator appointed by the Minister of Labour pursuant to s. 242 of the Canada Labour Code found in favour of an employee on a complaint of unjust dismissal against the Bank of Montreal - At the time of his appointment, the adjudicator was also acting as counsel for claimants in an action against the Bank of Montreal - The Bank applied for judicial review of the adjudicator's decision, alleging a reasonable apprehension of bias - The Attorney General of Canada was added as a respondent by reason of its role in appointing the adjudicator - The Federal Court granted a motion to strike the application as against the Attorney General - The court held, inter alia, that it was not incumbent on the Minister to make inquiries with respect to whether the adjudicator was in a conflict of interest before appointing him and the Minister's failure to do so could not constitute a breach of procedural fairness - See paragraphs 29 to 35.

Cases Noticed:

Arora v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 11 (T.D.), refd to. [para. 26].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 29].

Dynamex Canada Inc. v. Mamona et al. (2003), 305 N.R. 295; 2003 FCA 248, refd to. [para. 29].

Cogéco Radio-Télévision Inc. v. Trépanier (2002), 229 F.T.R. 88; 2002 FCT 1064, refd to. [para. 30].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 34].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 36].

Eamor v. Air Canada Ltd. et al. (1999), 129 B.C.A.C. 212; 210 W.A.C. 212; 179 D.L.R.(4th) 243 (C.A.), refd to. [para. 37].

Braemar Bakery Ltd. v. Liquor Control Commission (Man.) (1999), 142 Man.R.(2d) 47; 212 W.A.C. 47; 181 D.L.R.(4th) 565 (C.A.), refd to. [para. 37].

Canada Post Corp. v. Pollard (1993), 161 N.R. 66; 109 D.L.R.(4th) 272 (F.C.A.), refd to. [para. 38].

National Bank of Canada v. Canada (Minister of Labour) et al. (1997), 133 F.T.R. 142; 3 Admin. L.R.(3d) 51 (F.C.), affd. (1998), 229 N.R. 1 (F.C.A.), leave to appeal refused (1999), 236 N.R. 196 (S.C.C.), refd to. [para. 38].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 40].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 41].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 41].

Fetherston v. Canadian Food Inspection Agency (2005), 332 N.R. 113; 2005 FCA 111, refd to. [para. 41].

Szilard v. Szasz, [1955] 1 D.L.R. 370 (S.C.C.), refd to. [para. 41].

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1968] 3 All E.R. 304 (C.A.), refd to. [para. 45].

Oh v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 142; 2003 FCT 161, consd. [para. 48].

Counsel:

Laurie M. Robson, for the applicant;

Wayne C. Peterson, for the respondent, Debra Brown;

Balji Rattan, for the respondent, Attorney General of Canada.

Solicitors of Record:

Borden Ladner Gervais LLP, Calgary, Alberta, for the applicant;

North & Company LLP, Lethbridge, Alberta, for the respondent, Debra Brown;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This application was heard on February 7, 2006, at Calgary, Alberta, before de Montigny, J., of the Federal Court, who delivered the following decision on April 21, 2006.