Award Number 17-001

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City of Ottawa Police Services Board

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Award Date: 2017-02-22
Arbitrator: Marcotte, W
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Municipality: Ottawa
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Region: East
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Classifications: Duty of Fair Representation, Associations
Grievor: M. VanderMeulen, Complainant
Appearances: P. Machado and P. Laflamme, for the Respondent, for the Association
M. VanderMeulen, for the Applicant, for the Employer
Length of Award:15 pp
Collective Agreements Cit. ----
Statutory Cit. Police Services Act, s. 122 (3.5)


Duty of Fair Representation   ARBITRATION HEARING - Conduct of hearing - Duty of fair representation complaint - Applicant brought motion for recusal - Particulars of alleged bias reviewed against judicial test for bias - Arbitrator’s decisions concerning procedural matters were made with proper regard to procedural fairness for both parties - No justification for recusal of arbitrator on the grounds of bias - Motion dismissed - Preliminary award.

Associations   Duty of fair representation - Duty of fair representation complaint - Applicant brought motion for recusal - Arbitrator has discretionary authority to determine procedures for hearing - Procedural rulings by arbitrator were made with proper regard for procedural fairness to both parties - No basis for arbitrator to recuse himself on the grounds of bias - Motion dismissed - Preliminary award.


This preliminary award dealt with a motion for recusal. The applicant, Mr. VanderMeulen, brought a complaint alleging that the association failed to meet its duty of fair representation owed to him in certain matters involving his employer, the Ottawa Police Services Board. Two separate complaints were filed by Matthew Clark and Kelly Ryan alleging similar failures of the duty of fair representation. The arbitrator was appointed to hear all three complaints on October 31, 2016. Separate hearing dates were set for the three complaints. Mr. VanderMeulen’s complaint was scheduled to be heard on the first date, November 28, 2016. On January 6, 2017 Mr. VanderMeulen sent the arbitrator an email, requesting that he recuse himself as arbitrator due to his lack of objectivity. On January 9, 2017 the arbitrator informed both Mr. VanderMeulen and counsel for the OPA that he would hear the motion for recusal on the next scheduled hearing date, February 6, 2017. On November 17, 2016 counsel for the association requested disclosure and particulars of the complaints by November 25, 2016. The applicants responded that they would await the arbitrator’s decision as to timelines for disclosure. On November 18, 2016 the arbitrator informed the parties that in his view November 25th represented a reasonable amount of time in which to produce the information requested. Counsel for the association forwarded preliminary disclosure materials on November 24th, but at the commencement of the hearing on November 28th counsel indicated that she had received no particulars from the complainants. Mr. VanderMeulen responded that he and the other complainants did not consider the arbitrator’s direction to the parties to be an order. During that initial hearing date the arbitrator made several procedural rulings: 1) Counsel for the association objected to Mr. Clarke and Mr. Ryan being present. The arbitrator ruled that since separate complaints had been filed, it would be appropriate to exclude the other complainants when Mr. VanderMeulen and the association presented their evidence. He informed Mr. VanderMeulen that he was entitled to have an advisor present. 2) The arbitrator ruled that, consistent with the usual practice at arbitration hearings in Ontario, and absent agreement of all parties, Mr. VanderMeulen could not record the hearing. Mr. VanderMeulen was told that he could have a note-taker present if he felt he would be incapable of taking notes while presenting his evidence. 3) Mr. VanderMeulen indicated that in presenting his evidence he would be relying on 6-8 hours of recordings he had made of meetings relating to his complaint. The arbitrator ruled that he could either provide a transcript to the association or he could rely on notes of the matters recorded. Since the complainants expressed concerned about the costs for a transcription, the arbitrator indicated that he would inquire whether the Ontario Police Arbitration Commission (OPAC) would pay for a transcription. 4) Since none of the complainants provided any particulars by the first hearing date, an adjournment was necessary. New dates for hearing the merits of the complaints were set. In addition, the arbitrator ordered that the parties would simultaneously exchange particulars by email in advance of the new first hearing date into Mr. VanderMeulen’s complaint. With respect to costs for a transcription, in December 2016 the arbitrator informed the complainants of OPAC’s response – viz. that parties, not the Commission, are responsible for compiling their evidence and for the costs associated therewith. Mr. VanderMeulen then sent the arbitrator his email of January 6, 2017, in which he requested that the arbitrator recuse himself.


At the hearing of the motion Mr. VanderMeulen expanded on five points that he had raised in his email. He claimed that the arbitrator displayed bias and sacrificed natural justice by: 1) Acceding to the association’s requested deadline for disclosure; 2) Violating the “90 day rule” pursuant to s. 122(3.5) of the Police Services Act; 3) Stating words to the effect that counsel for the association was a lawyer and knew everything while he, the complainant, did not; 4) Refusing to “allow the victims to record the hearing for note taking purposes”. 5) In addition, he maintained that such flagrant bias caused his two colleagues to withdraw their complaints. With respect to point 2), Mr. VanderMeulen referred to an apparent test that he found on Wikipedia concerning “the legitimate expectation of the parties”. The association pointed out that with respect to points 1) and 2), disclosure was central to any proceeding, and the arbitrator accepted the complainants’ request for more time when they failed to meet his direction of November 18, 2016. With respect to point 3), the association submitted that in response to the applicant’s frustration about lack of knowledge concerning procedural matters, the arbitrator explained the procedure surrounding exclusion of witnesses. With respect to point 4), the association noted that recording hearings is not the norm in labour arbitration.

Award #

The arbitrator ruled that point 5) was irrelevant to the applicant’s motion for recusal. The test for determining bias was set out in the Supreme Court of Canada’s decision in Re R. v. S. (R.D.), [1997], 3 S.C.R. 484: “whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge.” The context of the motion in this case was an arbitration hearing, an adversarial process in which the arbitrator was required to ensure procedural fairness. In order to do so, the arbitrator had the discretionary authority to determine procedures so that the hearing was fair to both parties. A fundamental component of procedural fairness was disclosure: each party was entitled to know the case it had to meet in preparation for the hearing. Accordingly, the usual practice was for parties to exchange documents and particulars in advance of the hearing. With respect to point 1), the time-line for disclosure was established as an exercise of arbitral discretion; and, as the applicant, Mr. VanderMeulen bore the onus of initial disclosure. With respect to point 2), although the PSA did contain a 90-day time-limit for issuing a decision from the date of the arbitrator’s appointment, in this case the hearing could not proceed on the merits on the first date because Mr. VanderMeulen had not complied with the arbitrator’s direction for disclosure. It was improper for the applicant to claim a lack of procedural fairness when he was the cause of the arbitrator’s inability to issue a decision within 90 days. With respect to point 3), the arbitrator was explaining that counsel for the association could properly object to the presence of the other complainants, noting that she had experience and training in such matters. With respect to point 4), the ruling that the hearing would not be recorded fell within the arbitrator’s discretionary authority and was accompanied by the further ruling that Mr. VanderMeulen was entitled to have a note taker present. Both rulings reflected usual practices in arbitration hearings. The particulars of the applicant’s allegations, assessed in light of the test for bias in Re R. v. S. (R.D.), disclosed no justification for recusal on the grounds of bias. The decisions which the applicant objected to involved procedural matters. These decisions were made with proper regard to procedural fairness for both the applicant and the association. Motion dismissed.

Authorities Cited

• Re R. v. S. (R.D.), [1997] 3 S.C.R. 484 • Re Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259

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