November 25, 1997, E.C.B. No. 68/92/150 (63 L.C.R. 52)

Between:Glendale Trading Ltd. and Elke Erika Reiner
And:Her Majesty the Queen in Right of the Province of British Columbia
as Represented by the Minister of Transportation and Highways
Before: Julian K. Greenwood, Presiding Member
Sharon I. Walls, Member
Lesley Eames, AACI, P.App., Member
Appearances: Reinhard Burke for the Claimants
Alan V.W. Hincks for the Respondent



1. The Motion

On Monday, September 8, 1997, this panel of the board convened at Williams Lake, British Columbia, for a compensation hearing scheduled for one week; however, Mr. Burke, for the claimants, presented an oral preliminary motion in which he asked the board to disqualify itself and refer the adjudication of compensation to the Supreme Court. He based his motion on two grounds: that the board lacked the appearance of independence, and that it lacked the appearance of impartiality. These words are underlined because Mr. Burke himself stressed them on more than one occasion during his remarks. He was careful to say that he did not allege any actual lack of independence or impartiality either of the board as a whole or of the panel, and that he was not producing any evidence on which such actual defects could be based.

Mr. Burke's careful limitation of his motion to these grounds was surprising, since he also advised the panel that he had only decided to bring the motion when he heard the makeup of the panel the night before. He stated that he might not have made the motion had the panel been more to his liking. Nevertheless, the board holds Mr. Burke to the scope of his motion and declines to consider any part of his argument that could go only to the actual or perceived bias or lack of independence of the particular panel members involved.

Mr. Burke made an alternative motion that if the panel should rule against him and refuse to disqualify itself, then nevertheless the hearing should be adjourned pending the outcome of the Court of Appeal hearing in another case before this board - Ingham, Jamieson and Kowalski v. Town of Creston (1996), 59 L.C.R. 113 (B.C.E.C.B.), (here referred to as "Ingham"). The basis of this motion was that two issues under appeal in that case would also be relevant to the present case.

Mr. Burke made three arguments on the motion to disqualify the board.

(1) He argued that the board lacks the appearance of institutional independence, relying on the decision of Lamer, C.J. in the case of Matsqui Indian Band et al. v. Canadian Pacific Ltd. et al. (1995), 122 D.L.R. (4th) 129 (S.C.C.). Mr. Burke took objection to the conditions under which part-time members of the board serve. The claim in short was that such members lack sufficient certainty of remuneration and tenure, and that therefore their decisions would tend to be coloured by fear for their continued employment. The three members of the panel are in fact all part-time members of the board.

(2) He argued that the board lacks the appearance of impartiality because some members from time to time have served the Province in other capacities. He alleged that some of the board appointments are merely a "shuffle" from the Ministry of the Attorney General. He thought (incorrectly) that the present panel chair had previously been an employee of the Attorney General. In fact, although the chair had once worked in an unrelated function for the Ministry of Finance, he had never worked for the Attorney General, and when appointed to the board was a private lawyer in sole practice. Mr. Burke claimed (without details) that other members of the board (although not the present panel) had previously worked for the Attorney General or other arms of government. No evidence was presented on which members were involved, what their previous employment had been, or the circumstances under which they had arrived at the board. The essence of this submission was simply that if some board members have at any time been government employees, or have even done contract work for government, the board as a whole must be seen as lacking the necessary appearance of impartiality. A board with such members, Mr. Burke argued, would have the appearance of being concerned to protect the public purse, rather than being concerned to grant fair compensation.

(3) Thirdly, Mr. Burke argued that the present panel lacks the appearance of impartiality because two members had served on a prior expropriation compensation hearing on which Mr. Burke was counsel, and had made rulings on two issues with which Mr. Burke disagreed, and on which he had obtained leave to appeal. That case, Ingham, involved a road widening in Creston, B.C. The two issues identified by Mr. Burke were whether non-pecuniary losses were compensable, and whether general benefits should be deducted from specific losses in the circumstances of the case. He claimed that the decisions of the panel in Ingham on these two issues was made without any supporting authority, and that they were contrary to much long-standing jurisprudence.

No evidence in the formal sense was presented in support of Mr. Burke's motion at the hearing. He relied on what all the panel members can be presumed to know about the terms of their own appointments, on his unsupported allegations about the prior activities of other board members both present and past, and on the findings of the board in the Ingham case, which are of course a matter of record.

Mr. Hincks, in response, observed firstly that he was unprepared for the motion, and secondly that he did not, in any event, feel it was appropriate for him to make a spirited defence to the motion that the board disqualify itself. However, Mr. Hincks did oppose the alternative application for an adjournment, alleging that the true reason for the two motions was something else entirely. Mr. Burke, he said, had recently served him with new expert reports of which Mr. Hincks had not had proper notice. An adjournment, therefore, would enable Mr. Burke to overcome any objections as to late delivery of these reports.

Since its jurisdiction was being attacked, and a number of lengthy authorities had been referred to, the board had no option but to adjourn the hearing pending its decision on all motions, and advised the parties that if they wished to present any further arguments or authorities they would have one week to do so.

Within that subsequent week, Mr. Burke took the somewhat surprising step of filing a written notice of motion and his own affidavit in support. The written motion is different from the oral motion made at the hearing in some significant respects. It is now directed specifically at the three panel members, and does not on its face claim to be an attack on the board generally. It does not ask for a reference to the Supreme Court.

Faced with two somewhat different motions, the board has decided it must treat the later written motion as an amendment to the earlier motion, restricting what the board is asked to decide. Thus the motion to refer the matter to the Supreme Court is treated as abandoned.

The "evidence" represented by Mr. Burke's affidavit presents, of course, a different problem. It is trite that a counsel should not allow himself to become a witness in his own cause, and courts routinely caution against counsel tendering affidavits that are at all controversial. Yet in his affidavit, Mr. Burke makes statements which are his personal memory of past events, and invites conclusions or inferences from those memories. He makes statements which appear on their face to be hearsay. He makes statements which are submissions, and do not belong in an affidavit.

This new evidence is also beyond the scope of the board's order, which was simply to invite the parties to present further authority and argument on that authority, if they so wished. The board did not invite further evidence, and has referred to Mr. Burke's affidavit only as amplification of his argument.


2. Intervention Application by the Attorney General

Following the receipt of Mr. Burke's written motion, the Attorney General of British Columbia applied to "intervene" in this proceeding.

Mr. Burke, in a letter to the board written in response to this application, questioned whether the Attorney General could be described as an "intervenor", since the Crown, as represented by the Minister of Transportation and Highways (MoTH), is the respondent to the claim.

The board invited written submissions from the parties and the Attorney General as to the power of the board to accept the Attorney General as an intervenor, and the appropriateness of such an intervention. The claimants offered no further submissions on the issue. The Attorney General submitted some authority from which the board concludes that it has the power to accept an intervention in an appropriate case, as a necessary component of its power to control its own process. The Attorney General further suggested that he has a right to be heard as an intervenor where, as here, there are allegations made that his conduct conflicts with his statutory and common law duties as guardian of the public interest in all matters connected with the administration of justice in the province.

However the Attorney General also submitted that he does not have to "intervene" to make submissions on the motion. Rather, he has the right to be heard under his statutory power to conduct all litigation for or against the government (Attorney General Act, R.S.B.C. 1996 c. 22, s. 2(i)).

The board agrees with this latter submission. It accepts that the Attorney General ought to be heard in connection with allegations of this nature and would allow an intervention if such were necessary. However it observes that the Attorney General is already present in the proceeding as counsel for the respondent, and is free to make such relevant comments as he thinks fit in response to the motion without the need for a formal intervention. Having come to this conclusion, the panel has considered the written submission of the Attorney General made in response to the claimants' motion.

In that submission, the Attorney General made objections to the claimants' affidavit material, commented on the legal principles regarding impartiality and independence of tribunals, and made submissions on the application of those principles to this board.


3. The Law

There is a well accepted principle that a quasi-judicial tribunal should be independent of either of the parties and impartial as between them. Independence and impartiality should not only exist in fact, they should be seen to exist. A tribunal may be disqualified from deciding a dispute if its institutional arrangements are such that a reasonable person, knowing how it operates, would be likely to conclude that it would not make impartial decisions. This disqualification would apply even if in fact the tribunal is capable of being completely impartial in any particular case.

The two concepts, independence and impartiality, are closely related, but nevertheless different. "Impartiality" refers to the state of mind of the tribunal and its members, however arrived at. "Independence" refers to the status of the tribunal or the institutional arrangements in which it and its members work. A lack of independence from one of the parties might present a situation in which tribunal members, though impartial in conscience, might nevertheless feel pressure to make a decision against their consciences in their own self-interest. Thus both independence and impartiality have "institutional" components which, if lacking, can lead to an appearance of bias, even without any proof of actual bias.

Mr. Burke, by restricting his motion to the "appearance" of partiality and dependence, and applying it simply to the present panel members, has expressly refrained from relying on any actual defect in those members - even though his argument, at times, seemed otherwise. The board therefore need only look to the institutional arrangements under which the panel members have been appointed and carry out their functions.

The leading cases cited to the board as setting out the principles include Matsqui Indian Band et al. v. Canadian Pacific Ltd. et al. (1995), 122 D.L.R. (4th) 129 (S.C.C.), Katz v. Vancouver Stock Exchange (1995), 14 B.C.L.R. (3d) 66 (C.A.), and 2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool), [1996] 3 S.C.R. 919, (1996), 42 Admin. L.R. (2d) 1 (S.C.C.). Within these cases one finds reference to earlier cases, such as Valente v. The Queen (1985), 24 D.L.R. (4th) 161, 23 C.C.C. (3d) 193, [1985] 2 S.C.R. 673. The board was also referred to Douglas Lake Cattle Co. Ltd. and Douglas Lake Timber Co. Ltd. v. The Minister of Transportation and Highways for the Province of British Columbia, (1991), 45 L.C.R. 30 (B.C.E.C.B.), in which one finds that Mr. Burke as counsel for the claimants made a rather similar argument before, attacking the jurisdiction of Mr. Heinrich, the then chair of this board, on institutional dependence grounds. The chair ruled against Mr. Burke on that aspect of the motion. It is worth noting that there have been no significant changes since that decision (either alleged or proved) in the way the board is appointed or administered.

A number of additional cases were provided to the board by the Attorney General in its subsequent submission, including such cases on judicial independence as R. v. Lippe et al (1991), 64 C.C.C. (3d) 513 (S.C.C.), and References re Remuneration, Independence and Impartiality of Judges of the Provincial Court of P.E.I., S.C.C., 24508 and 24778, September 18, 1997.

Although some of these decisions are long and complex, the basic principles are stated quite succinctly in the 2747-3174 Quebec Inc. case. In the majority decision of Gonthier J., at p. 119 (Admin L.R.) one finds the following comment on institutional impartiality:

"... the test for institutional impartiality is well established... The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically - and having thought the matter through - would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention."

The principles surrounding independence of tribunals are discussed at p. 127-8 of the same report.

"The three main components of judicial independence, namely security of tenure, financial security and institutional independence, were identified in Valente, supra. The purpose of these objective elements is to ensure that the judge can reasonably be perceived as independent and that any apprehension of bias will thus be eliminated. Independence is in short a guarantee of impartiality.

"The principles developed by this Court in relation to judicial independence must be applied under s. 23 of the [Quebec] Charter. That does not mean of course that the administrative tribunals to which s. 23 applies must be in all respects comparable to courts of law. As is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned. Le Dain J.'s reasons in Valente leave room for a flexibility that takes the nature of the tribunal and all the circumstances into account..."


4. Application of the legal principles to the facts

4.1 Institutional independence

As has already been noted, there is very little factual support for this motion. The board has been referred to the terms of employment of part-time members, which are that they are appointed for three year terms under s. 53 of the Expropriation Act, R.S.B.C. 1996 c. 125 (the "Act"). The board's attention was also drawn to the statement in s. 53(5) that board members "may" be paid remuneration for their services. In fact, the panel members are all appointed by Orders in Council that stipulate the amount of remuneration on a per diem basis.

Mr. Burke argues that this is insufficient security of tenure and remuneration to establish the needed degree of judicial independence. He cites certain passages from Chief Justice Lamer's decision in Matsqui, who found that the circumstances of appointment of the Indian band assessment tribunals in that case raised a reasonable apprehension that they were not independent. There was "a complete absence" of financial security; security of tenure was either "completely absent" or "ambiguous", and the tribunals were appointed by the very bands who were litigants before them in the disputes with the railways. This was enough, in Lamer C.J.C.'s view, to justify the railway in seeking judicial review of the assessment rather than submitting to the assessment tribunals.

It is worth noting that this reasoning is in fact a minority decision in Matsqui, concurred in by only one other judge. It is also relevant that the decision only went to the right of Canadian Pacific to choose an alternative process -- direct petition to the Federal Court. It was not used as a basis for disqualifying the band tribunals altogether, since that relief was not requested. His Lordship was careful, furthermore, to base his conclusion on the combination of all three factors, and to deny that any one of the factors alone would have been enough. In short, he saw an extreme example of institutional dependence. Even so, four other judges disagreed with him on this point, and the remainder declined to deal with it.

When considering the independence of administrative tribunals, the "flexibility" principle means that one cannot simply apply the minimum standards for independence to all tribunals equally. One must take the different circumstances of each tribunal into account. A case that is similar to the present one is Katz, which involved a hearing panel set up by the B.C. Securities Commission to inquire into allegations that a member had breached the rules of the Commission. The panel was selected from a roster of people, some of whom were practising lawyers, and others of whom were volunteer members of the Commission. The chairs of such panels were drawn from the lawyers. An objection was taken by Katz to the jurisdiction of the panel in that case, on the grounds that the chair had no security of tenure or pay and could be dropped from the roster at any time. However the B.C. Court of Appeal had no difficulty in agreeing with the Commission that private lawyers, serving on such panels, do not need security of tenure, since that work is not their career. Rather it is just one job among others, and there is no practical doubt that they will be paid for it at their agreed hourly or daily rates. Those conditions did not raise a reasonable apprehension that the chair would be under pressure to make a biased decision.

In the present case, similar comments can be made. Part-time members of the board have tended to be lawyers, appraisers or similar professionals in private practice, for whom the board appointment is one source of income, but not a career. They have a degree of security of tenure and remuneration as set out in the Douglas Lake decision of the board. This structure ought not to raise an apprehension in a fair-minded person, aware of the facts, that the typical part-time member is so worried about continued appointment as to consciously or unconsciously favour the government at all, let alone in a "substantial number of cases". Thus the board rejects Mr. Burke's submission that it lacks the appearance of institutional independence.

4.2 Prior or other government connections of members

Mr. Burke's second main complaint was that some members of the board have had government connections or positions in the past or as part of their private practice. Since the motion speaks only to the "appearance" of partiality or dependence, there is no claim of actual bias under this heading. Thus the only way to interpret the motion is that because some members, at some times, have had some government connections, it must follow that the entire board is suspect and cannot be allowed to carry out its functions. Put this way, the proposition is plainly unsustainable. If correct, it would mean that no board member could ever be appointed from the ranks of qualified people who have ever had a government contract or job. There is no case that even approaches such a principle.

Mr. Burke suggests, without any useful evidence, that board appointees are simply the beneficiaries of political patronage. The board does not accept such an unsustained inference, and refuses to dignify it with further discussion.

4.3 Prior decision of panel members

The third attack on the impartiality of the panel is aimed at two members of the panel who served on the Ingham case mentioned above. The essence of this complaint is that those panel members have already decided certain issues in certain ways, and would be unlikely to change their minds in this subsequent case. It is this concern, according to Mr. Burke, which led to his last-minute decision to bring the application.

Properly understood, this is not truly a complaint about impartiality at all; it is simply a criticism of the previous decision. The mere fact that a decision maker has faced a similar problem before and decided it a particular way does not mean he or she is thenceforth biased. Board members are aware of their responsibility to decide every case on its own facts and the law as explained by higher authority, and there are certainly occasions known to the board where previous board decisions have not been followed or have been distinguished.

As Mr. Burke points out, he has leave to appeal the Ingham decision, and in due course the Court of Appeal will tell the board whether it was right or wrong. It is not the law that an appeal should result in a stay of all other cases which happen to have some common issues with those in the appeal, yet that is the apparent effect or intent of Mr. Burke's motion. It is a matter for the board's discretion in any particular case whether to allow an adjournment long enough to hear from a higher court in another matter, and on occasion the board may be persuaded to do that. However the board does not accept that the participation of particular panel members in a prior decision which is under appeal in any way prevents those members from participating in subsequent hearings.

It follows that the motion that the panel disqualify itself is dismissed. This leads immediately to Mr. Burke's alternative motion to adjourn the proceedings pending the Court of Appeal decision in Ingham. Mr. Burke has advised that the hearing will not be until early 1998. The Court of Appeal may take some time after that to render its decision. Acceptance of this adjournment motion could result in a very long delay. The board declines to exercise its discretion to adjourn the case any further, and advises the parties accordingly that they should proceed to find a new hearing date.


5. Costs and Interest

The board has not found any merit in these motions brought by Mr. Burke on behalf of the claimants. The effect of the motions on the processing of this claim, however, has been quite dramatic. Participants travelled to Williams Lake for the one week hearing that had been scheduled for some time. As a result of the motion the hearing could not proceed and a rescheduling of the hearing will undoubtedly result in some duplication of effort for all participants.

In a court, such circumstances would be likely to result in an order that the claimants pay the costs of the respondents on the motion, regardless of the outcome of the compensation hearing. In an expropriation case there are different principles of costs, and under s. 45(3), the claimant is entitled to reasonable legal, appraisal or other costs that are necessarily incurred in asserting his or her claim for compensation or damages. In this case, the motion, being in effect an attack on the jurisdiction of the board itself, was (in spite of Mr. Burke's assertions) a motion that could have and should have been made, if it was to be made, on proper notice, in advance of the scheduled hearing date. Therefore the board is of the view that various costs incurred by the claimants may not have been "necessarily" incurred for the purpose of asserting a claim for compensation. No doubt the chair may take this into account if and when the time comes to assess the claimants' costs.

It is further the opinion of the board that by bringing these motions without reasonable evidentiary or legal basis, and without any notice to the board or the respondent, the claimants have caused an unreasonable delay of the proceedings in the meaning of s. 47. It therefore orders that the claimants will not be permitted interest on any eventual award between the date of the start of the hearing (September 8, 1997) and the date that the compensation hearing is reconvened. The board intends and hopes that this will encourage the claimants to reset the hearing with reasonable dispatch.



Government of British Columbia