November 25, 1997, E.C.B. No. 68/92/150
(63 L.C.R. 52)
Trading Ltd. and Elke Erika Reiner|
Majesty the Queen in Right of the Province of British Columbia |
by the Minister of Transportation and Highways
Julian K. Greenwood, Presiding Member|
Sharon I. Walls, Member
AACI, P.App., Member
Reinhard Burke for the Claimants|
Alan V.W. Hincks for the Respondent
REASONS FOR DECISION ON 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.
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.
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.
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.
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
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.
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.
"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.
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.
Intervention Application by the Attorney General
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,
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.
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
3. The Law
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
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.
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),
 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,  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.
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.
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
"... 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
The principles surrounding independence
of tribunals are discussed at p. 127-8 of the same report.
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.
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..."
Application of the legal principles to the facts
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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'
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.