Beno v for BIAS

7/31/2019 Beno v for BIAS

1/12

Beno v. Canada (Somalia Inquiry Commission)

In The Matter of an inquiry pursuant to Part I of the Inquiries Act, R.S.C.1985, c. I-11 into the chain of command system, leadership within the chain ofcommand, discipline, operations, actions and decisions of the Canadian Forcesand the actions and decisions of the Department of National Defence in respect

of the Canadian Forces Deployment of Somalia and a report thereon, pursuant toOrder in Council, P.C. 1995-442

(sub nom. Beno v. Canada (Commissioner & Chairperson, Commission of Inquiry into theDeployment of Canadian Forces to Somalia)), [1997] 2 F.C. 527, (sub nom. Beno v. Canada(Commission of Inquiry into the Deployment of the Canadian Forces to Somalia)) 146 D.L.R.(4th) 708, (sub nom. Beno v. Ltourneau) 2121997 CarswellNat 688

N.R. 357, 47 Admin. L.R. (2d) 244, (sub nom. Beno v. Ltourneau) 129 F.T.R. 160(note), 1997 CarswellNat 1572, 2 F.C. 527, [1997] F.C.J. No. 509

The Honourable Gilles Ltourneau, Commissioner and Chairperson PeterDesbarats, Commissioner, The Honourable Robert Rutherford, Commissioner,Appellants (Respondents) and Brigadier-General Ernest B. Beno, Respondent(Applicant) and Attorney General of Canada, Major Barry Armstrong, Lcol. PaulMorneault Major Vincent J. Buonamici, Respondents (Respondents)

Federal Court of Canada, Appeal Division

Isaac C.J., Pratte and Stone JJ.A.

Heard: March 25 and 26, 1997

Judgment: May 2, 1997

Docket: A-124-97

Proceedings: reversing (1997), 144 D.L.R. (4th) 493 (Fed. T.D.)

SUBSEQUENT HISTORY: Leave to appeal refused by: Beno v. Canada (Somalia Inquiry Commission), 224

N.R. 395 (Note), [1997] S.C.C.A. No. 322 (S.C.C. Oct. 2, 1997)

Distinguished in: Stevens v Canada (Commission of Inquiry), [1998] 4 F.C. 125, 147 F.T.R. 310 (note), 228 N.R.

133, 1998 CarswellNat 1049, 1998 CarswellNat 2310 (Fed. C.A. Jun. 5, 1998)

Counsel: Mr. Raynold Langlois Q.C., and Ms. Eve Stphanie Sauve, for the Appellant.Mr. J. Bruce Carr-Harris and Mr. Lawrence A. Elliot, for Brigadier-General Ernest B. Beno.Mr. Graham Jones, for Major Vincent J. Buonamici.

Subject: Public Administrative law -- Requirements of natural justice -- Bias

Chair of Commission made comments about EB during EB's testimony and during privatemeetings which EB claimed indicated bias -- EB unsuccessfully moved before Commission tohave chair disqualified from acting as commissioner or from making adverse findings


2/12

against EB -- EB was successful on application for judicial review in Federal Court, TrialDivision, where judge concluded that chair's comments indicated he would not treat EBfairly in future -- On appeal from decision of Trial Division, court found that there wasnothing to support EB's allegations of bias -- In assessing behaviour of commissioners,special nature of their functions should be taken into account, and inquiry functions werenot classified at adjudicative extreme -- Commissioner should be disqualified for bias only if

challenger established reasonable apprehension that commissioner would reach conclusionon basis other than evidence, which was not established -- Flexible application of reasonableapprehension of bias test required reviewing court to take into consideration fact thatcommissioners were acting as investigators in context of long, arduous and complex inquiry,and trial judge failed to appreciate this context in applying test -- Trial judge found chair'sremark indicative of bias because he disagreed with chair's assessment of EB's demeanourand credibility, which was not valid reason to question chair's impartiality.

EB testified before the Somalia Inquiry Commission in 1996. The chair of the Commissionintervened while EB was being examined by commission counsel, and pointed out that whatEB had just said contradicted an answer he had previously given. When EB denied thatthere was a contradiction, the chair said: "I might as well tell you that you won't gain muchby fiddling around. It was a clear question and you won't gain much." Later, while the chair

was in Calgary to interview soldiers who might be of assistance, he was accused of unfairlyand aggressively treating EB. In reply, the chair indicated his opinion that EB had not givenstraight answers, seemed tense and unco-operative, and was perhaps trying to deceive theCommission. At a subsequent meeting with EB's counsel, the chair assured them that hisremark merely expressed his perception of the evidence at the time, and that he would readthe transcript before reaching any definite conclusion.

EB moved before the Commission to have the chair disqualified from continuing to act as acommissioner or, in the alternative, from making adverse findings against EB. TheCommission dismissed the motion, deciding that EB was mistaken in his contention thatthere existed a reasonable apprehension of bias, and reiterating that EB would have otheropportunities for correcting any misapprehensions he felt the Commission had about his

evidence. When EB applied for judicial review of the Commission's decision, the FederalCourt, Trial Division, granted his application, and prohibited the chair from participating inthe making of findings adverse to EB. At the trial level, the judge concluded that the chair'scomments indicated he would not treat EB fairly in the future. The Commission appealed.

Held: The appeal was allowed.

In assessing the behaviour of commissioners, the special nature of their functions should betaken into account. Depending on its nature, mandate, and function, the Somalia Inquirywas to be situated along the spectrum between its legislative and adjudicative extremes.Because of the significant differences between this inquiry and a civil or criminal proceeding,the adjudicative extreme was inappropriate. A commissioner should be disqualified for biasonly if the challenger could establish a reasonable apprehension that the commissioner

would reach a conclusion on a basis other than the evidence.

Further, a flexible application of the reasonable apprehension of bias test required that thereviewing court take into consideration the fact that the commissioners were acting asinvestigators in the context of a long, arduous, and complex inquiry. The judge failed toappreciate this context in applying the test.

There was nothing in the evidence to suggest that the remark made by the chair on thatday was inspired by something other than his own honest, although probably mistaken,


3/12

perception of EB's evidence. The chair was clearly reacting to EB's testimony; in thecircumstances, his comment could not reasonably be seen as indicating a tendency todecide on some basis other than the evidence. There was certainly no evidence that coulddisplace the presumption that the chair would act impartially. The only reason why thejudge found the chair's remark on that day to be indicative of bias was that he disagreedwith the chair's assessment of EB's demeanour and credibility. However, that was not a

valid reason to question the chair's impartiality. It was a gross error for the judge toconclude that the events in question gave rise to a suspicion that the chair was notimpartial.

Cases considered:

Badu v. Canada (Minister of Employment & Immigration) (January 6, 1994), Doc. A-85-93(Fed. T.D.) -- referred to

Bennett v. British Columbia (Superintendent of Brokers) (1994), (sub nom.Bennett v.British Columbia Securities Commission (No. 3)) 48 B.C.A.C. 56, 36 C.P.C. (3d) 96, 7C.C.L.S. 165, 30 Admin. L.R. (2d) 283, (sub nom. Bennett v. British Columbia SecuritiesCommission (No. 3)) 78 W.A.C. 56 (B.C. C.A. [In Chambers]) -- referred to

Bennett v. British Columbia (Superintendent of Brokers) (1994), 96 B.C.L.R. (2d) 274, 5C.C.L.S. 93, 118 D.L.R. (4th) 449, (sub nom. Bennett v. British Columbia SecuritiesCommission (No. 4)) 51 B.C.A.C. 81, (sub nom. Bennett v. British Columbia SecuritiesCommission (No. 4)) 84 W.A.C. 81, 28 Admin. L.R. (2d) 102 (B.C. C.A.) -- referred to

Bortolotti v. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617, 76 D.L.R. (3d) 408(Ont. C.A.) -- referred to Canada (Attorney General) v. Canada (Commissioner of theInquiry on the Blood System) (1997), 142 D.L.R. (4th) 237, (sub nom. Canada (AttorneyGeneral) v. Royal Commission of Inquiry on the Blood System in Canada) 207 N.R. 1 (Fed.C.A.) -- referred to

Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R.369, 9 N.R. 115, 68 D.L.R. (3d) 716 (S.C.C.) -- referred to

Di Iorio v. Montreal Jail, [1978] 1 S.C.R. 152, 33 C.C.C. (2d) 289, 35 C.R.N.S. 57, 8 N.R.361, 73 D.L.R. (3d) 491 (S.C.C.) -- referred to

Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80 (B.C. S.C. [In Chambers]) --referred to

Irvine v. Canada (Restrictive Trade Practices Commission), 24 Admin. L.R. 91, 15 C.P.R.(3d) 289, (sub nom. Re Irvine and Restrictive Trade Practices Commission) 34 C.C.C. (3d)481, [1987] 1 S.C.R. 181, (sub nom. Restrictive Trade Practices Commission v. Irvine) 74N.R. 33, (sub nom. Re Irvine and Restrictive Trade Practices Commission) 41 D.L.R. (4th)

429 (S.C.C.) -- referred to

Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957] 2 Q.B. 55 (Eng. C.A.) -- referredto

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),134 N.R. 241, 89 D.L.R. (4th) 289, 4 Admin. L.R. (2d) 121, [1992] 1 S.C.R. 623, 95 Nfld. &P.E.I.R. 271, 301 A.P.R. 271 (S.C.C.) -- considered


4/12

Nicholson v. Haldimand-Norfolk (Regional Municipality) Commissioners of Police (1978),[1979] 1 S.C.R. 311, 88 D.L.R. (3d) 671, 78 C.L.L.C. 14,181, 23 N.R. 410 (S.C.C.) --referred to

Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), 39 C.R. (4th) 141, 31 Admin.

L.R. (2d) 261, (sub nom. Phillips v. Richard, J.) 180 N.R. 1, (sub nom. Phillips v. Richard, J.)141 N.S.R. (2d) 1, (sub nom. Phillips v. Richard, J.) 403 A.P.R. 1, (sub nom. Phillips v. NovaScotia (Commission of Inquiry into the Westray Mine Tragedy)) 98 C.C.C. (3d) 20, (subnom. Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)) 124D.L.R. (4th) 129, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry into the WestrayMine Tragedy)) 28 C.R.R. (2d) 1, (sub nom. Phillips v. Nova Scotia (Commission of Inquiryinto the Westray Mine Tragedy)) [1995] 2 S.C.R. 97 (S.C.C.) -- referred to

R. v. Brouillard, (sub nom. Brouillard c. R.) [1985] 1 S.C.R. 39, 17 C.C.C. (3d) 193, 44 C.R.(3d) 124, [1985] R.D.J. 38, 16 D.L.R. (4th) 447, 57 N.R. 168 (S.C.C.) -- referred to

Ringrose v. College of Physicians & Surgeons (Alberta), [1977] 1 S.C.R. 814, 1 A.R. 1,[1976] 4 W.W.R. 712, 9 N.R. 383, 67 D.L.R. (3d) 559 (S.C.C.) -- considered

Shulman, Re, [1967] 2 O.R. 375, 63 D.L.R. (2d) 578 (Ont. C.A.) -- referred to

Statutes considered:

Inquiries Act, R.S.C. 1985, c. I-11

s. 3 -- referred to

s. 13 -- referred to

APPEAL from order of Federal Court, Trial Division, prohibiting chair of Somalia Inquiry from

participating in making of findings adverse to respondent Brigadier-General.

Per curiam:

1 This is an appeal from an order of the Trial Division prohibiting the Chairman of theCommission of Inquiry into the Deployment of Canadian Forces to Somalia fromparticipating in the making of findings adverse to the respondent, Brigadier-General Beno.That order was based on the finding that there was a reasonable apprehension that theChairman was biased against Beno.

2 The appellants were appointed by the Governor in Council, pursuant to section 3 of theInquiries Act, to conduct an inquiry and report on the actions and decisions of the CanadianForces and the Department of National Defence in respect of the deployment of Canadian

Forces to Somalia.

3 The respondent, Beno, is an officer in the Canadian Armed Forces. He is a party beforethe Commission and was served with a Notice, pursuant to section 13 of the InquiriesAct,[FN1] indicating, inter alia, that, in the course of the evidentiary hearings of theCommission, certain allegations of misconduct on his part might be investigated and mightlead "to an adverse finding that would reasonably be expected to bring discredit uponyou..."


5/12

4 Beno testified before the Commission on January 29, 30 and 31, 1996. He was beingexamined by counsel for the Commission, on January 30, when the Chairman intervened topoint out that what the witness had just said contradicted an answer that he had previouslygiven to a question that the Chairman had put to him. As the witness maintained that therewas no contradiction between his two statements, the Chairman interjected:

I might as well tell you that you won't gain much by fiddling around. It was a clear questionand you won't gain much...

That remark prompted Beno's counsel to rise and assert that the witness had notcontradicted himself and was not "fiddling around". The Chairman then put an end to theexchange by saying:

We'll take it from the transcript.

5 That is the incident which is the source of these proceedings.

6 On February 6, 1995, the Chairman was in Calgary with the Commission's Secretaryand two investigators to interview soldiers who might be of assistance to the Commission.

At the invitation of Brigadier-General Robert Meating, they all attended a breakfast meetingat the Calgary Base Officer's Mess. The Chairman sat beside Meating who, like many others,had been watching the public hearings of the Commission on television. During theirconversation, Meating expressed the opinion that Beno, when he had testified before theCommission, had been unfairly and aggressively treated by the Chairman. According to theaffidavit that was filed later by Meating, the Chairman replied that "it was his opinion ... thatBGen. Beno had not given straight answers and that perhaps Beno had been trying todeceive."

7 The Chairman was about to leave that meeting when his host introduced him to a Mr.Mariage, a retired officer who happened to be sitting at another table. Mariage was a friendof Beno and, like Meating, he had been irritated by the Chairman's reaction to Beno's

evidence. He took advantage of that occasion to express his concerns to the Chairman who,according to the affidavit later filed by Mariage, said that Beno, during his testimony, was"very tense ... he seemed to be hiding things ... he didn't seem to want to cooperate withthe Commission."

8 On the following day, Mariage telephoned Beno and told him of his conversation withthe Chairman. Beno conveyed that information to his counsel who communicated with theSecretary of the Commission and asked for an opportunity to meet privately with the threeCommissioners. That meeting took place on February 12, 1996. The only persons present,apart from Beno's two counsel, were the three commissioners and the Secretary of theCommission. According to the transcript of that meeting, Beno's counsel told theCommission that the Chairman's "fiddling" remark, which they considered unjustified, hadseriously damaged their client's reputation; they suggested that the Chairman should do

something to remedy that situation; they also referred to the Chairman's conversation withMariage, in Calgary, during which, they said, he had said that Beno was hiding something;they expressed their concern that the Chairman had already made up his mind that theirclient was not to be believed. The Chairman answered that his "fiddling" remark merelyexpressed the perception of the evidence that he had at the time and he assured them thathe would read the transcript before reaching any definite conclusion; he denied having saidto Mariage that Beno was hiding something; he also said, to explain his attitude at thehearing, that when he had problems with the testimony of a witness, he thought it


6/12

preferable to express immediately his doubts or difficulties so as to give the witness, hiscounsel and other interested persons, the opportunity to clear up any misunderstanding.

9 A few weeks later, Beno's counsel had apparently decided to commence proceedings toobtain the disqualification of the Chairman. For that purpose, they were interviewingwitnesses and obtaining affidavits concerning the Chairman's visit to Calgary on February 6,

1996. This came to the ears of the Chairman on March 20, 1996; he immediately asked oneof his subordinates to remind the authorities of the Calgary Base that they should notbreach the Commission's undertaking not to disclose the identity of the soldiers who hadmet with representatives of the Commission. The Chairman also phoned Meating on thesame subject and, during that call, told him that he considered that their conversation ofFebruary 6 was confidential.

10 On April 4, 1996, Beno filed a Notice of Motion with the Commission seeking an order"disqualifying the Commission Chairman ... from continuing to act as a Commissioner" or, inthe alternative, "disqualifying [him] ... from inquiring into, investigating, or participating inany way in the making of adverse findings ... in relation to charges or allegations which arethe subject matter of a Notice issued to the Applicant pursuant to Section 13 of theInquiries Act R.S.C. (1985) c. I-11, dated September 22nd, 1995." The Notice of Motion was

supported by material which established the facts that, until now, we have tried tosummarize as faithfully as we could. The Commission dismissed that motion on May 7, 1996and gave lengthy reasons in support of its decision. The concluding paragraphs of thesereasons deserve to be quoted:

As was stated to counsel for the Applicant during the private meeting with Commissionersconvened at his request, findings concerning the Applicant's credibility or any determinationas to whether adverse commentary should be made against him will not be made until all ofthe evidence that is to be called over the entire range of events that this Commission hasbeen asked to investigate has been heard. Findings that may reveal individual failings willbe based solely and scrupulously upon the evidence that has been formally disclosed tothese individuals and received in our hearings. All such holdings, it need scarcely be stated,

will be the findings and conclusions of the commission as a whole - not those of any singlemember of it. Also, it should be stated, no member of this Commission has had any priorknowledge of or ulterior, personal interest in Brigadier-General Beno. His evidence and hisrole in the events that transpired will be assessed solely in terms of what has been disclosedon the public record.

For the reasons given, we believe that the Applicant is mistaken in his contention that thereexists a reasonable apprehension of bias. Such valid concerns as he may have regarding thecompleteness of the picture presented in these hearings and the fairness of its depiction ofhim can be addressed in other ways. Our process is such that the Applicant will be accordedother opportunities for correcting any misapprehensions he feels that we, asCommissioners, may have as regards his evidence or the issues affecting him. He may haveother opportunities to testify... He will also, like all parties affected by these proceedings, be

given an opportunity at the conclusion of our evidentiary hearings to make submissions andsuggest that other evidence be brought forward that may be germane to any findings orconclusions that the Commissioners may make. Given these avenues that are available tohim, it is therefore difficult to envision any conceivable prejudice that the Applicant mayultimately suffer in the forthcoming phases of the Commission's proceedings.

One additional observation on the matter of final submissions is merited. Final submissions,whether at the conclusion of a trial or upon the completion of proceedings, represents anoccasion for counsel to "set the record right" and present a client's perspective in the


7/12

strongest and most favourable light possible. This opportunity has not been lost. It awaitsBrigadier-General Beno and his counsel. A tribunal does not reach its conclusions until suchsubmissions have been received. Nothing that has been heard or received to date in ourproceedings has been set in stone. Indeed, what may have appeared important at an earlystage of the process may, in the end, turn out to be less significant, or pale in comparisonwith more fundamental matters revealed by the process. Our minds remain open and there

is much terrain yet to be traversed before we reach the point of final submissions.

11 Beno then commenced an application for judicial review in the Trial Division seekingan order setting aside the decision that the Commission had just rendered and prohibitingits Chairman either from continuing to act as a Commissioner or, in the alternative, fromparticipating in the making of findings adverse to Beno. That motion was granted by theorder of the Trial Division against which this appeal is directed.

12 In the reasons that he gave in support of his order, the judge first considered thebranch of Beno's motion seeking an order setting aside the decision of the Commission; heconcluded on that point that the Commission had no jurisdiction to rule on thedisqualification of its Chairman and that, for that reason, its decision was a nullity. Theappellants and the respondents do not challenge that conclusion.

13 Turning to the second branch of Beno's application seeking an order in the nature ofprohibition, the judge expressed the view that, as Commissioners have "trial like" functions,the test for determining whether they have the required impartiality is not different from thetest applicable to judges, namely, whether the evidence discloses circumstances giving riseto a reasonable apprehension of bias on their part. After recalling what he considered to bethe general "expectations of judicial conduct in relation to bias," the judge of first instanceexamined the evidence in order to determine whether it gave rise to a reasonableapprehension of bias on the part of the Chairman. According to Beno, evidence of areasonable apprehension of bias was to be found in the evidence relating to the hearing ofJanuary 30 during which the "fiddling" remark was made, the meeting of the Chairman withMeating and Mariage in Calgary, on February 6, the informal meeting of the Commission of

February 12, the Chairman's phone call to Meating on March 20, 1996, and, finally, thereasons given by the Commission in support of its decision to dismiss Beno's application todisqualify the Chairman.

14 The judge held that no evidence of bias was provided by the reasons of theCommission or by the telephone conversation of March 20, 1996. In his view, the decisionof the Commission was a nullity and was devoid of any evidentiary value; as to thetelephone conversation of March 20, he thought that what was said by the Chairman on thatoccasion was not relevant to the bias issue.

15 The judge of first instance, therefore, rested his decision solely on the evidencerelating to the hearing of January 30, the visit of the Chairman to Calgary on February 6,and the informal meeting of the Commission on February 12.

16 It is during the hearing of January 30 that the Chairman made his "fiddling" remark.The judge, after watching the videotapes of Beno's evidence on that day,[FN2] concludedthat Beno had testified in an exemplary manner and that the intervention of the Chairmanon that occasion had clearly been prompted by a misunderstanding of certain answers givenby Beno. The judge expressed himself as follows:

There is no question that Commissioner Ltourneau was wrong in his assessment of BGen.Beno, and any misunderstanding about BGen. Beno's intentions could have been easily


8/12

corrected from carefully listening to the manner and style of BGen. Beno's evidence giving,and from reading the exact words used.

About this, the bystander's concern would not be so much about the error made inmisinterpreting the complex evidence, which is not uncommon in judicial proceedings, butabout why it was necessary for Commissioner Ltourneau to make the "fiddling" remark.

Even considering the allowances for intervention cited by Chief Justice Wilson [in A Book forJudges[FN3]], I think the bystander would be correct in concluding that this highlydisrespectful remark is evidence of an opinion held by Commissioner Ltourneau aboutBGen. Beno's credibility which is unsubstantiated by inspecting the evidence he gave.

In analyzing the remark, "I might as well tell you that you won't gain much by fiddlingaround. It was a clear question and you won't gain much--", the bystander would have anumber of questions. These would include: what did Commissioner Ltourneau think BGen.Beno wanted to gain; was he generally viewed as a person who was attempting to avoidresponsibility; did "fiddling around" mean not paying attention or being evasive, or didCommissioner Ltourneau think BGen. Beno was just not telling the truth?

I think the bystander would think that Commissioner Ltourneau was suspicious of BGen.

Beno's evidence and that suspicion came from some source other than the evidence.

17 The judge was also of opinion that the reasonable conclusion to be drawn from theconversations of the Chairman with Meating and Mariage on February 6, in Calgary, wasthat the Chairman "really believed what he said to BGen. Meating, being that BGen. Beno'was being less than open and truthful in his testimony', and to Mr. Mariage being that 'heseemed to be hiding things', and had no hesitation in saying so in defence of his remark inthe January 30th hearing."

18 Finally, for the judge, what the Chairman had said at the informal meeting of theCommission on February 12, showed that the Chairman had "a general suspicion of BGen.Beno and his evidence" and "was completely committed to the opinions he expressed to

BGen. Meating and Mr. Mariage on February 6th". The judge added:

Thus, even though Commissioner Ltourneau said and reiterated on February 12th that hewould look at all the evidence at the end of Inquiry and decide on BGen. Beno's credibility atthat time, his commitment to the conclusions which he has already drawn would cause thebystander to put no weight on this assurance.

19 The judge concluded that a reasonable bystander, considering all that evidence,"would say that BGen. Beno has not and would not in the future be treated fairly byCommissioner Ltourneau because of Commissioner Ltourneau's unjustified andentrenched negative opinion about BGen. Beno's credibility."

20 He, for those reasons, granted the application.

21 Before discussing the merit of the appeal, we wish to dispose immediately of anargument put forward on behalf of Beno and according to which the judge of first instanceerred in ruling that neither the decision of the Commission respecting Beno's application northe Chairman's phone call to Meating on March 20 provided evidence relevant to the biasissue. We agree with the judge of first instance that those two pieces of evidence do notsupport a finding of bias or of reasonable apprehension of bias. But we do not share thejudge's view that, in the case of the decision of the Commission, this conclusion flows fromthe fact that the decision was a nullity because it exceeded the Commission's jurisdiction.


9/12

The decision was rendered by the Commission, it is part of the record and cannot be ignoredeven though its evidentiary value must, in each case, be weighed.[FN4] The fact is,however, that there is nothing in that decision that supports Beno's allegation ofapprehension of bias.

22 The appellants invoke two main grounds of appeal. First, they say that the judge of

first instance erred in deciding that Commissioners exercise "trial like functions" and that, asa consequence, their impartiality should be judged by the "closed mind" test rather than bythe "reasonable apprehension of bias" test (see Newfoundland Telephone Co. v.Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (S.C.C.), at636 & ff.). Second, they say that, in any event, whatever be the applicable test, the judge'sconclusion is not supported by the evidence.

23 It is clear from his reasons for judgment that the judge of first instance assimilatedCommissioners to judges. Both, in his view, exercise "trial like functions." That is clearlywrong. A public inquiry is not equivalent to a civil or criminal trial (see Canada (AttorneyGeneral) v. Canada (Commissioner of the Inquiry on the Blood System) [now reported at(1997), 142 D.L.R. (4th) 237 (Fed. C.A.)] January 17, 1997, Court File Number A-600-96 atparagraphs 36, 73; Greyeyes v. British Columbia (1993), 78 B.C.L.R. (2d) 80 (B.C. S.C. [In

Chambers]) at 88; Di Iorio v. Montreal Jail , [1978] 1 S.C.R. 152 (S.C.C.), at 201; Bortolottiv. Ontario (Ministry of Housing) (1977), 15 O.R. (2d) 617 (Ont. C.A.) at 623-4); Shulman,Re , [1967] 2 O.R. 375 (Ont. C.A.) at 378). In a trial, the judge sits as an adjudicator, andit is the responsibility of the parties alone to present the evidence. In an inquiry, thecommissioners are endowed with wide-ranging investigative powers to fulfil theirinvestigative mandate (Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995]2 S.C.R. 97 (S.C.C.), at 138). The rules of evidence and procedure are thereforeconsiderably less strict for an inquiry than for a court. Judges determine rights as betweenparties; the Commission can only "inquire" and "report" (see Irvine v. Canada (RestrictiveTrade Practices Commission), [1987] 1 S.C.R. 181 (S.C.C.), at 231; Greyeyes, supra at 88).Judges may impose monetary or penal sanctions; the only potential consequence of anadverse finding by the Somalia Inquiry is that reputations could be tarnished (see Phillips,

supra at 163, per Cory J.; Krever, supra at paragraph 29; Greyeyes, ibid at 87).

24 It does not follow, however, that the impartiality of Commissioners should always bejudged by applying the "closed mind" test rather than the "apprehension of bias" test.Rather, whatever be the applicable test, in assessing the behaviour of Commissioners, thespecial nature of their functions should be taken into account: Newfoundland Telephone,supra at 636, 638; Irvine v. Canada (Restrictive Trade Practices Commission), supra at 230-31; Nicholson v. Haldimand-Norfolk (Regional Municipality) Commissioners of Police (1978),[1979] 1 S.C.R. 311 (S.C.C.), at 327.

25 In Newfoundland Telephone, Cory J. established a spectrum for assessing allegationsof bias against members of commissions or administrative boards. He held (supra, at 638-639):

It can be seen that there is a great diversity of administrative boards. Those that areprimarily adjudicative in their functions will be expected to comply with the standardapplicable to courts. That is to say that the conduct of the members of the board should besuch that there could be no reasonable apprehension of bias with regard to their decision.At the other end of the scale are boards with popularly elected members such as thosedealing with planning and development whose members are municipal councillors. Withthose boards, the standard will be much more lenient. In order to disqualify the members achallenging party must establish that there has been a prejudgment of the matter to such


10/12

an extent that any representations to the contrary would be futile. Administrative boardsthat deal with matters of policy will be closely comparable to the boards composed ofmunicipal councillors. For those boards, a strict application of a reasonable apprehension ofbias as a test might undermine the very role which has been trusted to them by thelegislature.

26 It is not necessary, for the purposes of this appeal, to determine with precision thetest of impartiality that is applicable to members of Commissions of Inquiry.[FN5]Depending on its nature, mandate and function, the Somalia Inquiry must be situated alongthe Newfoundland Telephone spectrum somewhere between its legislative and adjudicativeextremes. Because of the significant differences between this inquiry and a civil or criminalproceeding, the adjudicative extreme would be inappropriate in this case. On the otherhand, in view of the serious consequences that the report of a Commission may have forthose who have been served with a section 13 Notice, the permissive "closed mind"standard at the legislative extreme would also be inappropriate. We are of the opinion thatthe Commissioners of the Somalia Inquiry must perform their duties in a way which, havingregard to the special nature of their functions, does not give rise to a reasonableapprehension of bias. As in Newfoundland Telephone, the reasonable apprehension of biasstandard must be applied flexibly. Cory J. held (supra, at 644-645):

Once matters proceeded to a hearing, a higher standard had to be applied. Proceduralfairness then required the board members to conduct themselves so that there could be noreasonable apprehension of bias. The application of that test must be flexible. It need notbe as strict for this Board dealing with policy matters as it would be for a board acting solelyin an adjudicative capacity. This standard of conduct will not of course inhibit the mostvigorous questioning of witnesses and counsel by board members.

27 Applying that test, we cannot but disagree with the findings of the judge of firstinstance. A commissioner should be disqualified for bias only if the challenger establishes areasonable apprehension that the commissioner would reach a conclusion on a basis otherthan the evidence. In this case, a flexible application of the reasonable apprehension of bias

test requires that the reviewing court take into consideration the fact that thecommissioners were acting as investigators in the context of a long, arduous and complexinquiry. The judge failed to appreciate this context in applying the test.

28 The judge first considered the evidence relating to the hearing of January 30 and the"fiddling" remark. He found that Beno was an exemplary witness; that the "fiddling" remarkwas prompted by the Chairman's misunderstanding of Beno's evidence, and, finally, that"this highly disrespectful remark is evidence of an opinion held by Commissioner Ltourneauabout BGen. Beno's credibility which is unsubstantiated by inspecting the evidence hegave." He concluded that the Chairman "was suspicious of Beno's evidence and that [that]suspicion came from some source other than the evidence."

29 It should first be observed that there is nothing, absolutely nothing, in the evidence

that might suggest that the remark made by the Chairman on that day was inspired bysomething other than his own honest, although probably mistaken, perception of Beno'sevidence. The Chairman was clearly reacting to Beno's testimony; in the circumstances, hiscomment cannot reasonably be seen as indicating a tendency to decide on some basis otherthan the evidence. There was certainly no evidence that could displace the presumption thatthe Chairman would act impartially (see, Bennett v. British Columbia (Superintendent ofBrokers) (1994), 48 B.C.A.C. 56 (B.C. C.A. [In Chambers]), per Taylor J.A., affd (1994), 51B.C.A.C. 81 (B.C. C.A.); Badu v. Canada (Minister of Employment & Immigration) (January6, 1994), Doc. A-85-93 (Fed. T.D.) ). More than a mere suspicion, or the reservations of a


11/12

"very sensitive or scrupulous conscience," is required to displace that presumption (seeCommittee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R.369 (S.C.C.), at 394, per de Grandpr J., dissenting).

30 Moreover, that remark would have been entirely justified if, as the Chairmanobviously thought, Beno had contradicted himself. It is entirely appropriate even for a trial

judge to interject in order to clarify inconsistencies in the evidence: see R. v. Brouillard,[1985] 1 S.C.R. 39 (S.C.C.), at 42-48; Jones v. National Coal Board, [1957] 2 All E.R. 155(Eng. C.A.). Indeed, Beno's testimony that day was sufficiently unclear that CommissionerDesbarats was also struggling to understand it, and said so. [FN6]

31 The only reason why the judge found the Chairman's remark on that day to beindicative of bias is that he disagreed with the Chairman's assessment of Beno's demeanourand credibility. But that is not a valid reason to question the Chairman's impartiality. Thereis a difference between being impartial and being right. The Chairman had to form anopinion on the evidence of the witness; he had to base that opinion on his own honestperception of things. It matters little, in so far as the allegation of bias is concerned, that hemay have misunderstood the evidence or been less impressed than was the judge by thecandour of the witness. It was, in our view, a gross error for the judge to conclude that the

events of January 30 gave rise to a suspicion that the Chairman was not impartial. The onlyreasonable inference that could be drawn from those events was that the Chairman hadmisunderstood the evidence and that he would, as he had said, look at the transcript beforemaking up his mind.

32 Having drawn that wrong conclusion from the events of January 30, the judge had nodifficulty in finding a confirmation of his opinion in the evidence relating to the Chairman'svisit to Calgary and the informal meeting of the Commission. That evidence, as we read thereasons for judgment, would show that the Chairman persisted in his error and, therefore,in his bias. Again, this is wrong.

33 The Chairman's visit to Calgary where he met Meating and Mariage took place a week

after the incident of January 30. There is no reason to believe that the Chairman had givenany further thought to that incident or to Beno's evidence. One may assume that he hadmany other things on his mind. It must have been a shock for him to hear Meating's andMariage's criticisms of his behaviour. It is easy now to say that he should then haveremained silent. But it is not abnormal for a person in that situation whose impartiality isopenly put in question to try to explain the reasons that motivated his behaviour. It doesnot show that he was partial or had already reached a definite conclusion about Beno'sevidence.

34 Finally, contrary to what the judge found, the Chairman said nothing, during theprivate meeting of February 12, that could be interpreted as an indication that he wasbiased or committed to the views he had expressed at the January 30 hearing.

35 We would allow the appeal, set aside the decision of the Trial Division and dismissBeno's application for judicial review.

Appeal allowed.

FN1. That section reads as follows:


12/12

13. No report shall be made against any person until reasonable notice has been given tothe person of the charge of misconduct alleged against him and the person had beenallowed full opportunity to be heard in person or by counsel.

FN2. Counsel told us at the hearing that the viewing of those tapes would not assist us inthe decision of this appeal.

FN3. J.O. Wilson, A Book for Judges, Ottawa: Minister of Supply and Services Canada, 1980.

FN4. As was noted by Cory J. in Newfoundland Telephone, at p. 636: "It is, of course,impossible to determine the precise state of mind of an adjudicator who has made anadministrative board decision. As a result, the courts have taken the position that anunbiased appearance is, in itself, an essential component of procedural fairness." InRingrose v. College of Physicians & Surgeons (Alberta), [1977] 1 S.C.R. 814 (S.C.C.), at pp.821-822, the Supreme Court, per de Grandpr J., adopted the view that, while evidence forthe purpose of having the relevant circumstances before the Court is admissible, evidencefor the purpose of establishing that a person that the law presumes to be biased was not infact biased is not admissible. This, or course, presupposes the existence of a situationcreating a reasonable apprehension of bias.

FN5. It is possible that different tests are applicable to apprehensions of bias arising fromevents prior to their appointment as Commissioners and to those arising from subsequentevents.

FN6. Transcript, January 30, 1996, p. 7936, Appeal Book at 178.

Documents

Beno v for BIAS