Knowing who your friends are (and what that might do to you)

An interesting decision from the Federal Court of Canada today, the latest installment in a long-running labour relations saga at Canada Post.

The Conservative federal government intervened last year to compel Canada Post workers to go back on the job. One component of the back-to-work legislation was that a “final offer” arbitrator would be appointed. Both sides would make their “final offer” and the arbitrator would choose between them. Once the arbitrator had chosen, the “final offer” would become the binding collective agreement between the parties.

But the federal government has now seen its choice of arbitrator reversed twice by the Federal Court. On the first occasion, Martineau J. held that the first choice (retired judge Coulter Osborne) was unreasonable because the minister’s designated arbitrator was not bilingual and did not have sufficient labour relations expertise (in fact, Mr. Osborne had jumped before he was pushed).

Today, Tremblay-Lamber J. held that the second choice choice was also flawed. There were two elements to her decision that Guy Dufort could not act as an arbitrator because his decisions would be tainted by a reasonable apprehension of bias.

First, Dufort had acted as a prosecutor for Canada Post in a pay equity matter several years ago. Second, he had been involved with the Conservative Party: he was friends on Facebook with the minister who appointed him, Lisa Raitt, and the minister responsible for Canada Post, Steven Fletcher; and, on his Facebook page, he made reference to the Conservative Party in his interests and activities.

Dufort refused to recuse himself on application by the union, which promptly lodged a successful application for judicial review.

Tremblay-Lamer J. held that a reasonable and right minded person, applying him or herself to the question and obtaining thereon the required information, would have a reasonable apprehension of bias (i.e. that Dufort would not be an impartial adjudicator).

Much weight was placed on some damning facts. Ordinarily, Dufort’s earlier involvement with Canada Post would probably not have raised a reasonable apprehension of bias: his involvement ended almost a decade ago. However, although Dufort was not involved on the file, he remained a partner at Heenan Blaikie, the firm handling the litigation, until 2009. As a partner, he benefited financially, albeit indirectly. And because the case dragged on until the Supreme Court of Canada finally resolved it in 2011, it remains a fresh event for the union and Canada Post.

As for Facebook, one complicating factor was that Dufort apparently de-friended Raitt and Fletcher after the union first raised his virtual friendships as an issue. That sat poorly with Tremblay-Lamer J.: given the close links between the federal government and Canada Post, a reasonable observer would fear that an arbitrator with ties to federal ministers would inevitably favour management. This might be a bit of a stretch: the interests of management and the federal government are surely not so perfectly aligned that no person close to the Conservative Party could effectively serve as an arbitrator.

Whatever one thinks of the substance of Tremblay-Lamer J.’s decision, it is back to the drawing board, then, for the federal government. And be careful who you friend on Facebook…

Both of these decisions are available in French only: but there is a good news report in English here.

This content has been updated on June 11, 2014 at 09:47.