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Labour - Bias. Fearing v. Canada Council of Teamsters
In Fearing v. Canada Council of Teamsters (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here brought against two CIRB decisions.
Here the court considers an allegation of bias against one member of the CIRB panel:[8] Mr. Fearing also alleges that one of the panel members was biased because he was previously an officer of the union.
[9] Panel members on the Board bring with them their backgrounds and experiences, some labour-side, some management-side. This infuses the Board with knowledge and experience in this specialized area from both sides. In this case, the fact that a panel member once served on the respondent union is not necessarily and by itself evidence of bias. By way of analogy to the judicial context, after a suitable “cooling-off period”, judges can and do hear cases prosecuted or defended by law firms in which they were once a partner.
[10] The test for bias is a high one: Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. The test is whether the reasonable, fully informed person, thinking the matter through, would conclude that the relevant panel member was unable to act fairly and impartially. I am not persuaded that this test has been met: on the record filed before us concerning the two decisions under review, there was a “cooling-off period” and I am not persuaded that its length was inadequate.
[11] In any event, even if bias or some procedural flaw were present, the remedy of quashing the Board’s decision and remitting it back for re-decision would serve no practical use. On this record, the finding that the union did not breach its duty of fair representation by declining to act for Mr. Fearing is inevitable. Mr. Fearing failed to cooperate with the union. In this sort of situation, the remedy of quashing and remittal back is not available: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142, citing, among others, Sharif v. Canada (Attorney General), 2018 FCA 205 and Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45.
[12] Thus, there are no grounds to interfere with either of the Board’s decisions.
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