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IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282

 

Consolidated‑Bathurst Packaging Ltd.                                                                           Appellant

 

v.

 

International Woodworkers

of America, Local 2‑69  Respondent

 

and

 

The Ontario Labour Relations Board                                                                             Respondent

 

indexed as:  iwa v. consolidated‑bathurst packaging ltd.

 

File No.:  20114.

 

1989:  April 26; 1990:  March 15.

 

Present:  Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.

 

on appeal from the court of appeal for ontario

 

    Administrative law -- Natural justice -- Audi alteram partem rule -- Right to know case to be made -- Three‑person panel hearing case and ultimately making decision -- Case involving important and wider policy implications ‑‑ Full Board meeting called to discuss policy implications of a draft decision ‑‑ Facts accepted as stated in draft decision -- No vote or consensus taken ‑‑ No minutes kept -- Attendance not recorded -- Whether or not breach of rules of natural justice occurred -- Labour Relations Act, R.S.O. 1980, c. 228, ss. 14, 102(9), (13), 106, 108, 114.

 

    The Ontario Labour Relations Board ordinarily sits in panels of three when hearing applications under the Labour Relations Act.  A three‑member panel decided that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close a plant.  In the course of deliberating over this decision, a meeting of the full Board was held to discuss a draft of the reasons.  No express statutory authority exists for this practice.

 

    The record did not indicate how many of the Board's 48 members attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act.  The members of the panel who heard the case, however, appear to have been present.  The meeting was conducted in accordance with the Board's longstanding and usual practice.  This practice required that discussion be limited to the policy implications of a draft decision, that the facts be accepted as contained in the decision, that no vote or consensus be taken, that no minutes be kept, and that no attendance be recorded.

 

    Appellant applied for judicial review of the Board's decision on the ground that the rules of natural justice had been breached.  The application was granted by the Divisional Court but was disallowed on appeal.  At issue here was whether the two rules of natural justice had been breached:  (a) that the adjudicator be independent and unbiased, that he who decides must hear, and (b) the audi alteram partem rule, the right to know the case to be met.

 

    Held (Lamer and Sopinka JJ. dissenting):  The appeal should be dismissed.

 

    Per Wilson, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.:  Full board meetings are a practical means of calling upon the accumulated experience of board members when making an important policy decision and obviate the possibility of different panels inadvertently deciding similar issues in a different way.  The rules of natural justice should reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties.

 

    The members of a panel who actually participate in the decision must have heard both the evidence and the arguments presented by the parties.  The presence of other Board members at the full board meeting does not, however, amount to "participation" in the final decision.  Discussion with a person who has not heard the evidence does not necessarily vitiate the resulting decision because this discussion might "influence" the decision maker.

 

    Decision makers cannot be forced or induced to adopt positions they do not agree with by means of some formalized consultation process.  A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and does not constitute an obstacle to this freedom.  The ultimate decision, whatever discussion may take place, is that of the decision maker and he or she must assume full responsibility for that decision.  Board members are not empowered by the Act to impose one member's opinion on another and procedures which may in effect compel or induce a panel member to decide against his or her own conscience or opinion cannot be used to thwart this de jure situation.

 

    The criteria for independence are not absence of influence but rather the freedom to decide according to one's own conscience and opinions.  The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties.  As practised by the Board, the holding of full board meetings does not impinge on the ability of panel members to decide according to their opinions so as to give rise to a reasonable apprehension of bias or lack of independence.

 

    For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues.

 

    Evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness.  It is, however, possible to discuss the policy issues arising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factual conclusions.  These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel.  The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value.

 

    Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties.  While they are adopted in a factual context, they are an expression of principle or standards akin to law.  Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint.

 

    On factual matters the parties must be given a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view.  The rule with respect to legal or policy arguments not raising issues of fact is, however, somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments.  This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case.

 

    The safeguards attached by the Board to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided the parties are advised of any new evidence or grounds and are given an opportunity to respond.  The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice.  In the instant case, the policy decided upon was the very subject of the hearing when the parties had full opportunity to deal with the matter and present diverging proposals which they did.

 

    Per Lamer and Sopinka JJ. (dissenting):  The introduction of policy considerations in the decision‑making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in that respect violates the rationale underlying the principles of natural justice.

 

    The final decision was formally that of the three‑member panel.  The inference that the full Board meeting might have affected the outcome, however, exists and is fed by two difficulties.  Firstly, uniformity can only be achieved if some decisions of the individual panels are brought into line with others by the uniform application of policy.  Secondly, in matters affecting the integrity of the decision‑making process, an appearance of injustice is sufficient to taint the decision.

 

    The Board is required by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions.  It is also entitled to apply policy.  The role of policy in the decision-making function of boards must be reappraised in light of the evolution of the law relating to the classification of tribunals and the application of the rules of natural justice and fairness to those boards.  The content of the rules of natural justice is no longer dictated by classification as judicial, quasi‑judicial or executive, but by reference to the circumstances of the case, the governing statutory provisions and the nature of the matters to be determined.  It is no longer appropriate to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates.

 

    The full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and accordingly constituted a denial of natural justice.  It could not be determined with certainty from the record that a policy which was developed at the full Board hearing and was not disclosed to the parties was a factor in the decision.  That this might very well have happened, however, was fatal to the Board's decision.

 

    The goal of uniformity in the decisions of individual boards, while laudable, cannot be achieved at the expense of the rules of natural justice.  The legislature, if it so chooses, can authorize the full Board procedure.

 

    The conclusion that no substantial wrong occurred could not be made.  Prejudice arising because of a technical breach of the rules of natural justice must be established by the party making the allegation.  The appellant, however, could hardly be expected to establish prejudice when it was not privy to the discussion before the full Board and when there is no evidence as to what in fact was discussed.  The gravity of the breach of natural justice could not be assessed in the absence of such evidence.

 

    The full Board procedure was not saved by s. 102(13) of the Labour Relations Act which granted the Board the power to determine its own practice and procedure subject to the qualification that full opportunity be granted the parties to any proceedings to present their evidence and to make their submissions.  The appellant was not given a full opportunity to present evidence and make submissions.  The Board's practice must give way when at a variance with the rules of natural justice.

 

Cases Cited

 

By Gonthier J.

 

    Considered:  United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577; Doyle v. Restrictive Trade Practices Commission, [1985] 1 F.C. 362; referred to:  Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344; The King v. Huntingdon Confirming Authority, [1929] 1 K.B. 698; Re Rosenfeld and College of Physicians and Surgeons (1969), 11 D.L.R. (3d) 148; Regina v. Broker‑Dealers' Association of Ontario (1970), 15 D.L.R. (3d) 385; Re Ramm (1957), 7 D.L.R. (2d) 378; Regina v. Committee on Works of Halifax City Council (1962), 34 D.L.R. (2d) 45; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; Re Rogers (1978), 20 Nfld. & P.E.I.R. 484; Underwater Gas Developers Ltd. v. Ontario Labour Relations Board (1960), 24 D.L.R. (2d) 673; Re Toronto and Hamilton Highway Commission and Crabb (1916), 37 O.L.R. 656; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente v. The Queen, [1985] 2 S.C.R. 673; Rex v. Sussex Justices, [1924] 1 K.B. 256; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Board of Education v. Rice, [1911] A.C. 179; Local Government Board v. Arlidge, [1915] A.C. 120.

 

By Sopinka J. (dissenting)

 

    United Electrical, Radio and Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577; Re Ramm (1957), 7 D.L.R. (2d) 378; Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344; Walker v. Frobisher (1801), 6 Ves. Jun. 70, 31 E.R. 943; Szilard v. Szasz, [1955] S.C.R. 3; Rex v. Huntingdon Confirming Authority, [1929] 1 K.B. 698; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; B. Johnson & Co. (Builders), Ltd. v. Minister of Health, [1947] 2 All E.R. 395; Re Cloverdale Shopping Centre and the Township of Etobicoke (1966), 2 O.R. 439; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Innisfil (Corporation of the Township) v. Corporation of Township of Vespra, [1981] 2 S.C.R. 145; City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; R. v. Criminal Injuries Board, [1973] 1 W.L.R. 1334; Toshiba Corp. v. Anti‑Dumping Tribunal (1984), 8 Admin. L.R. 173; Komo Construction Inc. v. Commission des Relations de Travail du Québec, [1968] S.C.R. 172.

 

Statutes and Regulations Cited

 

Labour Relations Act, R.S.O. 1980, c. 228, ss. 14, 102(9), (13), 106, 108, 114.

 

Authors Cited

 

Aronson, Mark and Nicola Franklin.  Review of Administrative Action, 2nd ed.  Sydney:  Law Book Co., 1987.

 

Benyekhlef, K.  Les garanties constitutionnelles relatives à l'indépendance du pouvoir judiciaire au Canada.  Cowansville, Québec:  Blais, 1988.

 

Blache, Pierre et Suzanne Comtois.  "La décision institutionnelle" (1986), 16 R.D.U.S. 645.

 

Crane, Brian.  Case Comment (1988), 1 C.J.A.L.P. 215.

 

de Smith, S. A.  de Smith's Judicial Review of Administrative Action.  4th ed. By J. M. Evans.  London:  Stevens & Sons, 1980.

 

Dussault, René and Louis Borgeat.  Administrative Law:  A Treatise, 2nd ed.  Translated by Murray Rankin.  Toronto:  Carswells, 1985.

 

Garant, Patrice.  Droit administratif, 2e éd.  Montréal:  Blais, 1985.

 

Morissettte, Yves‑Marie.  Le contrôle de la compétence d'attribution:  thèse, antithèse et synthèse (1986), 16 R.D.U.S. 591.

 

Ontario.  Royal Commission Inquiry into Civil Rights.  Report of the Royal Commission Inquiry into Civil Rights, vol. 5,  Report No. 3.  Toronto:  The Queen's Printer, 1971.

 

Pépin, Gilles et Yves Ouellette.  Principes de contentieux administratif, 2e éd.  Cowansville, Québec:  Blais, 1982.

 

Sack, Jeffrey and C. Michael Mitchell.  Ontario Labour Relations Board Law and Practice.  Toronto:  Butterworths, 1985.

 

Wade, Henry William Rawson.  Administrative Law, 4th ed.  Oxford:  Clarendon Press, 1977.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1986), 56 O.R. (2d) 513, allowing an appeal from a judgment of the Divisional Court (1985), 51 O.R. (2d) 481, 20 D.L.R. (4th) 84, 85 CLLC 14,031, granting an application to quash a decision of Ontario Labour Relations Board, [1983] OLRB Rep. December 1995, 5 CRBR (NS) 79, made on a reconsideration of its original decision, [1983] OLRB Rep. September 1411, 4 CLRBR (NS) 178.  Appeal dismissed, Lamer and Sopinka JJ. dissenting.

 

    William R. Herridge, Q.C., for the appellant.

 

    Paul Cavalluzzo and David Bloom, for the respondent International Woodworkers of America, Local 2‑69.

 

    Gordon F. Henderson, Q.C., and R. Ross Wells, for the respondent Ontario Labour Relations Board.

 

//Sopinka J.//

 

    The reasons of Lamer and Sopinka JJ. were delivered by

 

    Sopinka J. (dissenting) -- The issue in this case is the propriety of a practice of the Ontario Labour Relations Board pursuant to which a full Board session is held to discuss a draft decision of a three‑person panel.

 

Facts

 

    The Ontario Labour Relations Board (hereinafter the "Board") derives its statutory authority under the Labour Relations Act, R.S.O. 1980, c. 228 (hereinafter the "Act").  The Board ordinarily sits in panels of three in hearing applications under the Act.  This is authorized by s. 102(9) of the Act which provides:

 

    102. . . .

 

    (9)  The chairman or a vice‑chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.

 

    The original decision of a panel of three members of the Board ([1983] OLRB Rep. September 1411) from which this litigation arises was that the appellant had failed to bargain in good faith by not disclosing during negotiations for a collective agreement that it planned to close its Hamilton plant.  In the course of deliberating over this decision, a meeting was held of the full Board to discuss a draft of the reasons.  No express statutory authority exists for this practice.

 

    Although we are told that the full Board consists of 48 members, it does not appear from the record how many attended the meeting in question and whether labour and management were equally represented as contemplated by s. 102(9) of the Act.  The affidavit of Mr. Michael Gordon, filed on behalf of the appellant, identifies thirteen of the people present, among them an alternate chairman, several vice‑chairmen, a number of Board members, solicitors and senior employees of the Board.  Of those specifically identified, only Board member Wightman was a member of the panel which heard the case.  Nevertheless it appears from the Board's reasons on reconsideration that the other members of the panel of three were also present.

 

    While it is not contested that no evidence was introduced at this full Board meeting, it is not clear from the record what was discussed.  The meeting took several hours but no minutes were kept.  The reasons of the Board on reconsideration describe the practice of the Board in relation to full Board hearings but provide no details as to what was discussed.  It may be assumed that the matters discussed were in accordance with the Board's practice in this regard.  This practice is described in the decision of the Board on Consolidated‑Bathurst's application to reconsider the original decision, [1983] OLRB Rep. December 1995, which reads, in part, at paragraph 8:

 

8.   After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice‑chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make.  These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.

 

There is no evidence that the procedure at the meeting in question departed from the Board's usual practice, whereby discussion is limited to the policy implications of a draft decision, the facts contained in the decision are taken as given, no vote or consensus is taken, no minutes are kept, and no attendance is recorded.  The practice is not a recent innovation.  It goes back at least as far as 1971 when it was referred to, disapprovingly, in Chief Justice McRuer's report in the Royal Commission Inquiry into Civil Rights, February 22, 1971, pp. 2004‑6.

 

    The appellant learned of the full Board meeting by chance and requested a reconsideration by the Board of its decision.  This request was denied.  In the course of its reasons the Board, as mentioned above, described its practice in detail and defended it as promoting consistency in the Board's decisions and as an institutionalization of the informal practice of conferral among colleagues.  The Board considered its practice not a breach of natural justice but rather a procedure well suited to the Board's size, composition, and statutory mandate.  Subsequent to the Board's refusal to reconsider its decision, the appellant applied to the Divisional Court for judicial review.

 

Divisional Court (1985), 51 O.R. (2d) 481

 

    The majority of the Divisional Court, with Osler J. dissenting, granted the application, quashed the Board's decision, and ordered the Board to reconsider the matter in light of the Court's reasons for judgment.  The reasons of the majority of the Divisional Court, delivered by Rosenberg J., were to the effect that because the parties had no knowledge as to what had been said in the discussions and no opportunity to respond, there was a violation of the principle that he who hears must decide.  It could not be said with certainty that the three‑member panel was not influenced in its decision by the full Board, because of the lack of evidence as to what transpired at the meeting.  Thus the Court quashed the Board's decision.  Osler J., on the other hand, was of the view that the common law contained no prohibition of consultation among decision makers and their colleagues, so long as those who have not heard the evidence and submissions do not participate in the decision.  While the parties must be given the opportunity to respond to new ideas or evidence, this case provided no evidence that the full Board meeting had yielded any such ideas or evidence.

 

Court of Appeal (1986), 56 O.R. (2d) 513

 

    The decision of the Divisional Court was reversed on appeal to the Court of Appeal.  Cory J.A., as he then was, in the Court of Appeal, concluded that pursuant to s. 102(13) of the Labour Relations Act the Labour Relations Board had exclusive jurisdiction to determine its own practice and procedure subject only to the obligation to give a full opportunity to the parties to the proceedings to present evidence and make submissions.  He further concluded that there was no denial of natural justice in this case and that the meeting was an exercise of common sense whereby the significance and effect of a decision was discussed with other experts in the field.  He emphasized, however, that the full Board procedure was limited in that the parties must be recalled if new evidence is considered in the full Board's discussion, and that while the panel can receive advice from the full Board there can be no participation by the other Board members in the decision.

 

Issues

 

    The issue in this appeal is whether the following rules of natural justice have been violated:

 

    (a)  he who decides must hear;

 

    (b)  the right to know the case to be met.

 

The Effect of the Full Board Procedure

 

    The first step in deciding whether the rules of natural justice have been breached is to assess what role, if any, the full Board procedure played in the decision‑making process.  The appellant submits that the outcome of its case may have been influenced by a formalized meeting of the full Board.  The respondent Union counters by submitting that the appellant must establish a breach of the rules of natural justice but can point to no new evidence or arguments in the decision of the Board that were obtained as a result of the full Board procedure.  The purport of the Board's reasons on the application for reconsideration is that the ultimate decision was left to the panel and therefore presumably that the discussion of policy implications did not influence the final decision.

 

    In the Board's reasons on reconsideration, it is stated at p. 2002 that the object of the full Board hearings is as follows:

 

These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.

 

    The Board further states, at pp. 2002‑3, that:

 

9.   "Full Board" meetings are as important to fashioning informed and practical decisions which will withstand the scrutiny of subsequent panels as is the research and reflection undertaken by the vice‑chairmen in preparing their draft decisions . . . . The "Full Board" meeting merely institutionalizes these discussions and better emphasizes the broad ranging policy implications of individual decisions.

 

    The learned authors of Sack and Mitchell, Ontario Labour Relations Board Law and Practice, at p. 7, summarized the practice in the following terms:

 

When such a matter is referred in this way, the full Board does not consider the evidence or the facts of the case, but individual members may express their views on questions of law or policy.  No vote is taken.  The panel which heard the case then confers in private session and reaches a decision.  In this way, some uniformity in Board decisions on matters of policy and procedure has been achieved in spite of the fact that differently constituted panels sit every day.

 

    The issue before the Board was whether unsolicited disclosure of a proposed plant closing which was alleged to be at least under serious consideration was an aspect of the duty to bargain in good faith.  In this regard the Board was being asked by the respondent Union to extend its decision in United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577, or at least to give it a broad interpretation.  That case had decided that, as part of the employer's obligation to negotiate in good faith, an employer had a duty to disclose a de facto decision to close a plant.  Resolution of this issue required the panel to choose between competing policies.  The important role of policy is depicted in the following passages in the Board's original reasons at pp. 1430‑31, 1436 and 1443:

 

In cases of this kind there are, of course, significant conflicting values at stake.  There is the desirability of stability in collective bargaining relationships as evidenced by the statutory policy requiring a collective agreement for a minimum term of one year and the twin statutory requirements of "no strike and no lockout".  All differences during the term of an agreement are to be funnelled through grievance arbitration.  It is also widely understood that management must have the ability to take initiatives in responding to the new demands posed by changing circumstances.  The market place seldom awaits labour and management consensus.  On the other hand, unilateral management initiatives can adversely affect significant interests of employees and unions who, in the absence of change, may have built up certain expectations and attitudes concerning the status quo.

 

                                                                           . . .

 

The Board must also be sensitive to the statutory purpose of the bargaining duty, the language describing that duty, and the industrial relations implications of one approach over another.

 

                                                                           . . .

 

What policy justification then supports greater unsolicited disclosure and merits the Board's intervention in the face of these potential difficulties?

 

    In the result the Board chose to broaden the application of Westinghouse by extending the meaning of a de facto decision to the facts of this case.  At paragraph 53, p. 1447 of its decision, it stated:

 

53.  In any event, we find that the matter of the impending closing was so concrete and highly probable in early January and dealt with by the board of directors in such a perfunctory manner (in that there was no documentation or apparent consideration of alternatives), the company had a minimum obligation to say that unless a certain percentage of the new business was retained or unless there was a dramatic turn in the operation a recommendation to close would be made within the next few weeks.  Having regard to the Christmas letter to employees; the productive second half of 1982; and to the then state of dialogue between local labour and management on the future of the plant, the company's silence at the bargaining table was tantamount to a misrepresentation within the meaning of the de facto decision doctrine established in Westinghouse.

 

    The following passage, at p. 2004, from the Board's reasons on reconsideration summarizes the participation of the full Board in the application of policy:

 

Unsolicited disclosure in collective bargaining -- the issue involved in the case -- is an area of great significance to effective and harmonious collective bargaining in this Province and it is fair to say that many of the labour and management Board members in attendance at the meeting gave their reaction to the principles and their application as set out in the draft decision.  No vote, however, was held and no other mechanism for measuring consensus was employed.

 

Given the number of Board members present and the fact that included were an alternate Chairman, Vice‑chairmen and solicitors, the views expressed were potentially very influential.

 

    In view of the above I adopt the following from the reasons of the majority of the Divisional Court, at pp. 491-92, as a correct statement as to the effect of the full Board meeting:

 

Chairman Shaw [sic] states in his reasons that the final decision was made by the three members who heard evidence and argument.  He cannot be heard to state that he and his fellow members were not influenced by the discussion at the full board meeting.  The format of the full board meeting made it clear that it was important to have input from other members of the board who had not heard the evidence or argument before the final decision was made.  The tabling of the draft decision to all of the members of the board plus all of the support staff involved a substantial risk that opinions would be advanced by others and arguments presented.  It is probable that some of the people involved in the meeting would express points of view.  The full board meeting was only called when important questions of policy were being considered.  Surely, the discussion would involve policy reasons why s. 15 should be given either a broad or narrow interpretation.  Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence.  The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.

 

    I would conclude from the foregoing that the full Board meeting might very well have affected the outcome.  The Board in its reasons on reconsideration does not directly seek to refute this inference.  It does affirm that the final decision was that of the panel.  There are two difficulties which confront the Board in seeking to negate the inference.  First, I find it difficult to understand how the full Board practice can achieve its purpose of bringing about uniformity without affecting the decision of individual panels.  Uniformity can only be achieved if some decisions are brought into line with others by the uniform application of policy.  The second difficulty is that in matters affecting the integrity of the decision‑making process, it is sufficient if there is an appearance of injustice.  The tribunal will not be heard to deny what appears as a plausible objective conclusion.  The principle was expressed by Mackay J. in Re Ramm (1957), 7 D.L.R. (2d) 378 (Ont. C.A.)  Mackay J. wrote, at p. 382:

 

    With respect to the difference in the constitution of members of the Public Accountants Council on the first and second hearings, it may very well be that the two members of the Public Accountants Council who were not present at the earlier hearing, abstained from argument on the issues which fell for determination.  It appears, however, that they did vote inasmuch as the decision to revoke the licence of the appellant Ramm was unanimous.  It is well established that it is not merely of some importance but of fundamental importance, that "justice should not only be done but should manifestly and undoubtedly be seen to be done".  In a word, it is not irrelevant to inquire whether two members of the Council who were not present at the earlier meeting took part in the proceeding in the Council's deliberation on the subsequent hearing.  What is objectionable is their presence during the consultation when they were in a position which made it impossible for them to discuss in a judicial way, the evidence that had been given on oath days before and in their absence and on which a finding must be based. [Emphasis added.]

 

    In Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, at p. 350, Cartwright J. cited with approval the following passage from the judgment of Lord Eldon L.C. in Walker v. Frobisher (1801), 6 Ves. Jun. 70, 31 E.R. 943, at pp. 72 and 944:

 

    But the arbitrator swears, it (hearing further persons) had no effect upon his award.  I believe him.  He is a most respectable man.  But I cannot from respect for any man do that, which I cannot reconcile to general principles.  A Judge must not take upon himself to say, whether evidence improperly admitted had or had not an effect upon his mind.  The award may have done perfect justice, but upon general principles it cannot be supported.

 

This statement had been approved previously by this Court in Szilard v. Szasz, [1955] S.C.R. 3.  Cartwright J. was also impressed by the statement of Romer J. in Rex v. Huntingdon Confirming Authority, [1929] 1 K.B. 698, at p. 717:

 

Further, I would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25.  There was a division of opinion.  The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.

 

    I turn next to consider whether a discussion of policy matters at the full Board meeting which may have affected the outcome constituted a breach of the rules of natural justice.

 

The Principles of Natural Justice

 

    Section 102(13) of the Act provides that the Board shall give full opportunity to the parties to present their evidence and make their submissions.  The Board is empowered to determine its own practice and procedure but rules governing its practice and procedure are subject to the approval of the Lieutenant Governor in Council.  While not every practice of the Board would necessarily be subject to the approval of the Lieutenant Governor, the full Board practice is one which might require such approval.  No such approval has been given and indeed the practice does not appear to have been adopted formally as a rule of the Board.  In view of the fact, however, that this point was not argued I do not propose to deal with it further.

 

    The full Board hearing in this case is said to violate the principles of natural justice in two respects:  first, that members of the Board who did not preside at the hearing participated in the decision; and second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and in respect of which there was no opportunity to make submissions.

 

    Although these are distinct principles of natural justice, they have evolved out of the same concern:  a party to an administrative proceeding entitled to a hearing is entitled to a meaningful hearing in the sense that the party must be given an opportunity to deal with the material that will influence the tribunal in coming to its decision, and to deal with it in the presence of those who make the decision.  As stated by Crane in his case comment on the Consolidated-Bathurst decision (1988), 1 C.J.A.L.P. 215, at p. 217:  "The two rules have the same purpose:  to preserve the integrity and fairness of the process."  In the first case the party has had no opportunity to persuade some of the members at all, while in the second the party has not been afforded an opportunity to persuade the tribunal as to the impact of material obtained outside the hearing.

 

    The concern for justice is aptly put by the pithy statement in the McRuer Report criticizing the full Board procedure.  At pages 2005‑6, the former Chief Justice of the High Court of Ontario states:

 

To take a matter before the full Board for a discussion and obtain the views of others who have not participated in the hearing and without the parties affected having an opportunity to present their views is a violation of the principle that he who decides must hear.

 

                                                                           . . .

 

    Notwithstanding that the ultimate decision is made by those who were present at the hearing, where a division of the Board considers that a matter should be discussed before the full Board or a larger division, the parties should be notified and given an opportunity to be heard.

 

    Although I am satisfied that, at least formally, the decision here was made by the three‑member panel, that does not determine the matter.  The question, rather, is whether the introduction of policy considerations in the decision‑making process by members of the Board who were not present at the hearing and their application by members who were present but who heard no submissions from the parties in respect thereto, violates the rationale underlying the above principles.

 

    In answering this question, it is necessary to consider the role of policy in the decision‑making processes of administrative tribunals.  There is no question that the Labour Board is entitled to consider policy in arriving at its decisions.  See Dickson J. (as he then was) in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at pp. 235‑36:

 

The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations.  In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

 

    The Board, then, is obliged by statute to hold a hearing and to give the parties a full opportunity to present evidence and submissions.  It is also entitled to apply policy.  At a time when the content of the rules of natural justice was determined by classifying tribunals as quasi‑judicial or administrative, the Board would have been classified as exercising hybrid functions.  A tribunal exercising hybrid functions did so in two stages.  As a quasi‑judicial tribunal it was required to comply with the rules of natural justice.  In making its decision, however, it assumed its administrative phase and could overrule the conclusion which was indicated at the hearing by the application of administrative policy.  Examples of this type of tribunal and the jurisprudence relating to its functions can be found in cases such as B. Johnson & Co. (Builders), Ltd. v. Minister of Health, [1947] 2 All E.R. 395, and Re Cloverdale Shopping Centre and the Township of Etobicoke (1966), 2 O.R. 439 (Ont. C.A.)  In this state of the law there was no obligation on a tribunal during its administrative phase to comply with the rules of natural justice and hence to disclose policy which was being applied.  Although tribunals exercising so‑called administrative functions were subject to a general duty of fairness, disclosure of the policy to be applied by the tribunal was generally not a requirement.  In the case of hybrid tribunals, therefore, such non‑disclosure at the quasi‑judicial stage would not have been considered a breach of the rules of natural justice.  In this respect policy was treated on the same footing as the law.  Both law and policy might be dealt with at the hearing but the tribunal was entitled to supplement it by its own researches without disclosure to the parties.

 

    This view of the role of policy must be reappraised in light of the evolution of the law relating to the classification of tribunals and the application to them of the rules of natural justice and fairness.  The content of these rules is no longer dictated by classification as judicial, quasi‑judicial or executive, but by reference to the circumstances of the case, the governing statutory provisions and the nature of the matters to be determined.  See  Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, and Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879.

 

    It is no longer appropriate, therefore, to conclude that failure to disclose policy to be applied by a tribunal is not a denial of natural justice without examining all the circumstances under which the tribunal operates.

 

    The proceedings which are the subject of this appeal involve the exercise of extraordinary powers by the Board.  In this case the Board was asked to order reopening of the Hamilton plant although it had operated at a loss.  Although the Board declined to make that order, it apparently considered that it had jurisdiction to do so.  In lieu thereof the employer was ordered to pay damages.  These are civil consequences that affect the rights of employers to a greater degree than many civil actions in the courts in which a litigant enjoys the whole panoply of protection afforded by the rules of practice, procedure and the rules of evidence.  The Act, here, provides for a full opportunity to the parties to present evidence and to make submissions.  Is this opportunity denied when the tribunal considers and applies policy without giving the parties an opportunity to deal with it at the hearing?  Is it a breach of the standard of fairness which underlies the rules of natural justice?

 

    The answers to these questions lie in the nature of policy and whether it is correct to treat it on the same footing as the law.  In Innisfil (Corporation of the Township) v. Corporation of Township of Vespra, [1981] 2 S.C.R. 145, this Court was called upon to deal with the question whether a party to a proceeding before the Ontario Municipal Board was entitled to challenge policy by leading evidence and by cross‑examination -- the traditional methods for contesting fact.  The Court of Appeal of Ontario had held that government policy introduced at the hearing was not binding but could be met by other evidence.  Cross‑examination was, however, denied.  In this Court, the right to challenge policy by evidence was affirmed.  In addition, the appellants were accorded the right to cross‑examine and the Court of Appeal was reversed in this respect.  Estey J., who delivered the judgment of the Court, stated, at p. 167:

 

On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen's right to meet the case made against him by cross‑examination.

 

    If a party has the right to attack policy in the same fashion as fact, it follows that to deprive the party of that right is a denial of a full opportunity to present evidence and is unfair.  Policy in this respect is not like the law which cannot be the subject of evidence or cross‑examination.  Policy often has a factual component which the law does not.  Furthermore, under our system of justice it is crucial that the law be correctly applied.  The court or tribunal is not bound to rely solely on the law as presented by the parties.  Accordingly, a tribunal can rely on its own research and if that differs from what has been presented at the hearing, it is bound to apply the law as found.  Ordinarily there is no obligation to disclose to the parties the fruits of the tribunal's research as to the law, although it is a salutary practice to obtain their views in respect of an authority which has come to the tribunal's attention and which may have an important influence on the case.  For an example of the application of this practice in this Court, see City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2, at p. 36.  We do not have the same attitude to policy.  There is not necessarily one policy that is the right policy.  Often there are competing policies, selection of the better policy being dependent on being subjected to the type of scrutiny which was ordered in Innisfil, supra.

 

    Ample support can be found in the cases and writings for the proposition that generally policy is to be treated more like fact than law.  In Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141, Laskin C.J., in holding that the Commission was entitled to rely on policy, stated at p. 171:

 

. . . it was eminently proper that it lay down guidelines from time to time as it did in respect of cable television.  The guidelines on this matter were arrived at after extensive hearings at which interested parties were present and made submissions.  An overall policy is demanded in the interests of prospective licensees and of the public under such a regulatory regime as is set up by the Broadcasting Act.  Although one could mature as a result of a succession of applications, there is merit in having it known in advance.

 

In de Smith's Judicial Review of Administrative Action (4th ed. 1982), at p. 223, the learned author states:

 

. . . an opportunity to be heard, both on the application and the merits of the policy, may be required in order to prevent a fettering of discretion.

 

In support, the learned author cites R. v. Criminal Injuries Board, [1973] 1 W.L.R. 1334, at p. 1345, per Megaw L.J.:

 

    As to the question of the board's minutes, I think that justice and paragraph 22 of the Scheme alike require that if the board in any particular case are minded to be guided by any principle laid down in any pre‑existing minute of the board, the applicant must be informed of the existence and terms of that minute, so that he can, if he wishes, make his submissions with regard thereto: that is, submissions on the questions whether the principle is right or wrong in relation to the terms of the Scheme and whether the principle, if right, is applicable or inapplicable to the facts of the particular case.

 

    Another comment from de Smith is found in the section on the right to a hearing, at p. 182, note 92:

 

Whilst it would be going too far to assert that in all circumstances there is an implied right to be apprised of and to argue against policy proposals, there are some indications pointing in this direction: see for example, British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610, 625, 631 (desirable that notice be given to applicants for industrial grants of any rule or policy generally followed by the Department, and an opportunity for the applicants to make representations on the soundness or applicability of the policy or rule: this would make applications more effective and prevent the Department from fettering its statutory discretion) . . . .

 

    In Professor Patrice Garant's Droit administratif (2nd ed. 1985), he states, at pp. 792‑93:

 

    [TRANSLATION] It seems to be well established that a  policy or guidelines previously adopted by a tribunal do not give rise to a reasonable apprehension of bias, if the tribunal respects the audi alteram partem rule, even if the decision to intervene is in accordance with the policy or guidelines.

 

    See also Dussault and Borgeat, Administrative Law: A Treatise (2nd ed. 1985), at p. 423, and Pépin and Ouellette, Principes de contentieux administratif (2nd ed. 1982), at p. 269.

 

    In the discussion of "The Duty of Disclosure" Aronson and Franklin in Review of Administrative Action write, at p. 183:

 

The extent to which policy, expertise and independent inquiry are integral to the decision‑making process will inevitably vary according to the subject matter for decision or investigation.  But even in a trial‑type hearing, the adjudicator is not bound exclusively by the parties' proofs and arguments, and will need to accommodate public and institutional interests.  The more "polycentric", policy‑oriented or technical a problem, the greater is the pressure on decision‑makers to seek out solutions, to confer separately with interested persons, and to use their experience to find a settlement.  The ability of administrators to inform themselves, and to apply their expertise and accumulated experience, and the expectation that they will do so, makes the duty of disclosure sometimes difficult to define, and to observe.  At the same time, however, it enhances the importance of the duty.  Disclosure can act as an important safeguard against the use of inaccurate material or untested theories.  It can also contribute to the efficiency of the hearing by directing argument and information to the relevant issues and materials. [Emphasis added.]

 

Wade, Administrative Law (4th ed. 1977) states, at p. 470:

 

Policy is of course the basis of administrative discretion in a great many cases, but this is no reason why the discretion should not be exercised fairly vis‑a‑vis any person who will be adversely affected.  The decision will require the weighing of any such person's interests against the claims of policy; and this cannot fairly be done without giving that person an opportunity to be heard.

 

    In my opinion, therefore, the full Board hearing deprived the appellant of a full opportunity to present evidence and submissions and constituted a denial of natural justice.  While it cannot be determined with certainty from the record that a policy developed at the full Board hearing and not disclosed to the parties was a factor in the decision, it is fatal to the decision of the Board that this is what might very well have happened.

 

    While achieving uniformity in the decisions of individual boards is a laudable purpose, it cannot be done at the expense of the rules of natural justice.  If it is the desire of the legislature that this purpose be pursued it is free to authorize the full Board procedure.  It is worthy of note that Parliament has given first reading to Bill C‑40, a revised Broadcasting Act which authorizes individual panels to consult with the Commission and officers of the Commission in order to achieve uniformity in the application of policy (s. 19(4)).  Provision is made, however, for the timely issue of guidelines and statements with respect to matters within the jurisdiction of the Commission.

 

Section 114

 

    The respondents do not contend that if a breach of natural justice has occurred, the privative clause in s. 108 of the Act would apply.  They have, however, submitted that if there was a breach of natural justice, it was technical only and hence no remedy should be available.  The respondents cite s. 114 of the Act as well as Toshiba Corp. v. Anti‑Dumping Tribunal (1984), 8 Admin. L.R. 173 (F.C.A.)  Section 114 reads:

 

    114.  No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

 

Toshiba concerned a preliminary staff report prepared for the Anti‑Dumping Tribunal which was not revealed to the parties and which the Court described as "a dangerous practice."  Nonetheless, the Court of Appeal was satisfied that the report contained only matters of general knowledge or was based upon facts and sources which were brought out at the hearing in such a manner that the parties had the opportunity to test them.  Thus any breach of natural justice was minor and inconsequential and the application for judicial review was dismissed.

 

    The submission that there is no prejudice as a result of a technical breach of rules of natural justice requires that the party making the allegation establish this fact.  To do so in this case it would be necessary for the respondents to satisfy the court that the matters discussed were all matters that had been brought out at the hearing.  This has not occurred; unlike Toshiba there is no report or minutes of the full Board meeting against which the hearing proceedings can be compared.  The appellant can hardly be expected to establish prejudice when it was not privy to the discussion before the full Board and there is no evidence as to what in fact was discussed.  In the absence of such evidence the gravity of the breach of natural justice cannot be assessed, and I cannot conclude that no substantial wrong has occurred.

 

Section 102(13)

 

    Nor can I conclude that the full Board procedure is saved by virtue of s. 102(13) of the Labour Relations Act.  Section 102(13) reads:

 

                                   102. . . .

 

    (13)  The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.  [Emphasis added.]

 

I recognize the importance of deference to a Board's choice of procedures expressed by this court in Komo Construction Inc. v. Commission des Relations de Travail du Québec, [1968] S.C.R. 172, at p. 176 [reported in English translation at (1967), 1 D.L.R. (3d) 125, at p. 127], per Pigeon J.:

 

While upholding the rule that the fundamental principles of justice must be respected, it is important to refrain from imposing a code of procedure upon an entity which the law has sought to make master of its own procedure.

 

However, in this case the appellant was not given a full opportunity to present evidence and make submissions, which is an explicit limit placed by statute on the Board's control of its procedure.  Furthermore, when the rules of natural justice collide with a practice of the Board, the latter must give way.

 

Disposition

 

    In the result, the appeal is allowed, the judgment of the Court of Appeal is set aside and the order of the Divisional Court restored with costs to the appellant against the respondents both here and in the Court of Appeal.

 

//Gonthier J.//

 

    The judgment of Wilson, La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by

 

    GONTHIER J. -- I have had the opportunity to read the reasons of my colleague, Sopinka J., and I must respectfully disagree with his conclusions in this case.  While I do not generally disagree with the summary of the facts, decisions and issues, I consider it useful to refer to them in somewhat more detail.

 

    The appeal is from a decision of the Court of Appeal of Ontario dismissing an application for judicial review of two decisions of the Ontario Labour Relations Board ("Board").  In the first decision, a tripartite panel composed of G. W. Adams, Q.C., Chairman of the Board, W. H. Wightman and B. F. Lee representing the management and labour sides respectively, decided, Mr. Wightman dissenting, that the appellant had failed to bargain in good faith with the respondent union because it did not disclose during the negotiations its impending decision to close the plant covered by the collective agreement.  Counsel for the appellant then learned that a full board meeting had been called to discuss the policy implications of its decision when it was still in the draft stage.  The parties were neither notified of nor invited to participate in this meeting.  The appellant applied for a reconsideration of this decision under s. 106 of the Labour Relations Act, R.S.O. c. 228, on the ground that the full- board meeting had vitiated the Board's decision and on the ground that the evidence adduced at the first hearing had been improperly considered.  The same panel rejected both these arguments in the second decision (the "reconsideration decision").

 

    The Board's decisions were challenged in the Divisional Court on the basis:  (1) that the original decision was manifestly unreasonable in fact and in law, and (2) that the full board meeting called by the Board prior to the panel's decision constituted a violation of the rules of natural justice.  The Divisional Court rejected the first ground and the appellant did not raise this argument in the Court of Appeal nor in this Court.  Thus, the only issue before this Court is whether the impugned meeting vitiated the first decision rendered by the Board on the ground that the case was there discussed with panel members by persons who did not hear the evidence nor the arguments.

 

    In order to determine whether the principles of natural justice have been breached in this case, it is necessary to examine in some detail the facts which led to the initial complaint made by the respondent union.  It will also be necessary to examine the evidence as to the purpose and the context of the full board meeting so as to understand the policy matters in issue at that meeting.

 

I - The Facts

 

(a)  Plant Closure and Collective Agreement Negotiations

 

    The appellant operated a corrugated container plant in Hamilton (the "Hamilton plant") and decided to close it on April 26, 1983.  This decision was approved by the Board of Directors on February 25, 1983 and announced on March 1, 1983.  The respondent union was the bargaining agent for the employees of the Hamilton plant and negotiated a new collective agreement with the appellant from November 2, 1982 to January 13, 1983, the date at which a memorandum of settlement was concluded.  The collective agreement was signed on April 22, 1983.  It is obvious from the evidence heard by the Board that the decision to close the Hamilton plant and the labour negotiations concerning this plant took parallel courses.  It is also obvious that the respondent union was never informed of the possibility of an impending plant closure.  Although its demands did initially include a modification of art. 18.26 of the existing collective agreement concerning plant closure and severance pay, the respondent union unilaterally dropped this demand during the negotiations and art. 18.26 was simply renewed.  At no other point during the negotiations did the subject of plant closure arise.

 

    According to the testimonies of the representatives of the appellant, the Hamilton plant was so unprofitable that it would have been closed in 1982 if an industry‑wide strike had not taken place from June to December of that year.  The Hamilton plant remained open during that period and the appellant hoped that some goodwill would be generated through the new contracts entered into as a result of the industry‑wide strike.  As early as 1981, following the negotiation of the 1980‑82 collective agreement, the appellant and the respondent union met to discuss concerns over the possibility of a plant closure given the severe losses anticipated for that year.  The appellant had decided to turn the plant around and sought the respondent union's collaboration adding that there were no plans to close the Hamilton plant at that time.  In October of 1981, the employees of the bargaining unit did commit themselves to the improvement of productivity at the plant.  After registering a loss of $1.3 million for the year 1981, the appellant continued to invest in the Hamilton plant but warned that it would not continue to "throw `good money after bad'" and that the plant would have to become profitable in the short term.  In May of 1982, immediately before the industry‑wide strike, 25 employees had to be laid off and the plant was operating only two shifts a day on a four‑day work week.

 

    In this context, the industry‑wide strike was a godsend for the Hamilton plant.  New clients had to award contracts to the Hamilton plant for the duration of this strike and the plant was operating at capacity, three shifts a day seven days a week.  Unfortunately, the anticipated goodwill from new customers did not materialize and Mr. Ted Haiplik, Vice‑President and General Manager of the Container Division, reported to his superiors that in his opinion the Hamilton plant should be closed.  Mr. Souccar, to whom Mr. Haiplik reports, testified that this recommendation was made to him in the "first or second week of February during one of their regular meetings".  The matter was brought to the attention of the Board of Directors during their meeting of February 25, 1983 and they decided that the plant would close on April 26, 1983.  Mr. Souccar insisted that it took four to five weeks following the end of the industry‑wide strike to determine the amount of market share retained by the appellant and assess its viability under normal circumstances.  Thus, according to Mr. Souccar, no decision concerning the closure of the Hamilton plant could be made before February of 1983.

 

    Throughout this period, no mention was made of the possibility of plant closure during the negotiations except to point out that customers were monitoring these negotiations closely to see whether there was any possibility of a strike after the deadline set for January 8, 1983 by the respondent union.  Moreover, Mr. Gruber, labour negotiator for the appellant, testified that he was not aware of any plans to close the plant during the negotiations.  It is in this context that the Board was asked to determine whether the appellant had breached its obligation to bargain in good faith and, more particularly, whether it had the obligation to disclose its plans to close the Hamilton plant.

 

    The obligation to disclose, without being asked, information relevant to any particular labour negotiation was held by the Board to be part and parcel of the obligation to bargain in good faith in United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Ltd., [1980] OLRB Rep. 577, (Westinghouse), where this information relates to plans "which, if implemented during the term of the collective agreement, would have a significant impact on the economic lives of bargaining unit employees" (at p. 598).  In order to understand the policy issues which were the subject of discussion at the full board meeting held by the Board, it is necessary to analyse the Westinghouse decision and its implications in this case.

 

(b)The Westinghouse Decision and the Arguments Raised by the Parties before the Board

 

    In Westinghouse, management had decided to relocate its Switchgear and Control Division from Hamilton to several other locations two months after the conclusion of negotiations for a collective agreement.  In this decision, the Board ruled that the obligation to bargain in good faith set out in s. 14 of the Labour Relations Act, now s. 15, comprised the obligation to reveal during the course of negotiations decisions which may seriously affect members of the bargaining unit.  However, the Board found it difficult to define the point at which a planned decision becomes sufficiently certain to warrant disclosure during the negotiations without creating unnecessarily threatening perceptions in the bargaining process.  The Board described as follows the perils of forced disclosure of plans which may be discarded in the future and held that an employer does not have the obligation to disclose plans until they have become at least de facto decisions, at pp. 598‑99:

 

41.  The competitive nature of our economy and the ongoing requirement of competent management to be responsive to the forces at play in the marketplace result in ongoing management consideration of a spectrum of initiatives which may impact on the bargaining unit.  More often than not, however, these considerations do not manifest themselves in hard decisions.  For one reason or another, plans are often discarded in the conceptual stage or are later abandoned because of changing environmental factors.  The company's initiation of an open‑ended discussion of such imprecise matters at the bargaining table could have serious industrial relations consequences.  The employer would be required to decide in every bargaining situation at what point in his planning process he must make an announcement to the trade union in order to comply with section 14.  Because the announcement would be employer initiated and because plans are often not transformed into decisions, the possibility of the union viewing the employer's announcement as a threat (with attendant litigation) would be created.  If not seen as a threat the possibility of employee overreaction to a company initiated announcement would exist.  A company initiated announcement, as distinct from a company response to a union inquiry may carry with it an unjustified perception of certainty.  The collective bargaining process thrusts the parties into a delicate and often difficult interface.  Given the requirement upon the company to respond honestly at the bargaining table to union inquiries with respect to company plans which may have a significant impact on the bargaining unit, the effect of requiring the employer to initiate discussion on matters which are not yet decided within his organization would be of marginal benefit to the trade union and could serve to distort the bargaining process and create the potential for additional litigation between the parties.  The section 14 duty, therefore, does not require an employer to reveal on his onw [sic] initiative plans which have not become at least de facto decisions.  [Emphasis added.]

 

The Board then decided that management "had not made a hard decision to relocate during the course of bargaining as would have required it to reveal its decision to the trade union" (at p. 599).  [Emphasis added.]

 

    The facts in this case are substantially similar to those in the Westinghouse case in that a decision which would substantially affect the bargaining unit was taken by management either during or immediately after collective agreement negotiations thereby raising the issue of whether plans to close the Hamilton plant had gone sufficiently far through management's decision‑making process to justify their disclosure to union representatives during the course of the negotiations.  Before the Board, the appellant and the respondent union both argued, inter alia, that the test established in the Westinghouse decision ought to be modified.  In his reasons, [1983] OLRB Rep. September 1411, Chairman Adams stated the respondent union's position as follows, at p. 1428:

 

26.  The complainant's second major alternative argument requested this Board to reconsider its holding in Westinghouse that an employer does not have to reveal on his own initiative plans which have not become at least de facto decisions.  The complainant asserted that the test ought to be disclosure where an employer is "seriously considering an action which if carried out will have a serious impact on employees".

 

Chairman Adams later summarized the appellant's arguments as follows, at p. 1429:

 

29.  On behalf of the respondent company it was submitted that the extent of its bargaining duty was to disclose any decisions the company had made about the closing of the plant during the course of negotiations.  Counsel submitted that on the evidence before the board one could only conclude that a definitive decision had not been made and that the respondent was not obligated to engage in speculation about a possible plant closing during bargaining.

 

Thus, although other legal and factual arguments were put forward by the parties, the main issue before the Board was whether the Westinghouse decision had to be reconsidered and the test it adopted replaced by either one of the tests proposed by the parties.  This issue was a policy issue which had important implications from the point of view of labour law principles as well as of the effectiveness of collective bargaining in Ontario.  The Board's desire to discuss it in a full board meeting was therefore understandable.

 

    The Board panel decided in this case, Mr. Wightman dissenting on this issue, that the test set out in the Westinghouse case should be confirmed and that in this case, the appellant had made a de facto decision to close the Hamilton plant during the course of the negotiations.  Thus, the appellant had the obligation to disclose this decision to the respondent union even if no questions were asked on this subject.  The Board also found in the alternative that the decision to close the plant was so highly probable that the appellant should have informed the respondent union that if the Hamilton plant's financial situation did not improve in the short term, a recommendation to close the plant would shortly be made to the Board of Directors.

 

(c)  The Full Board Meeting

 

    On September 23, 1983, Mr. Michael Gordon, counsel for the appellant, became aware that a full board meeting concerning the Hamilton plant closure was taking place at the Board's offices.  Mr. Gordon was aware that full board meetings have been part of the Board's practice for some time but had never been aware that any of the cases in which he had been involved was the subject of such a meeting.  The appellant then filed an application for a reconsideration of the initial decision on the basis, inter alia, that the practice of holding full board meetings is illegal.

 

    In this reconsideration decision, Chairman Adams described in detail the purpose of these meetings and the way in which they are held.  Not surprisingly, Chairman Adams emphasized the necessity to foster coherence and maintain a high level of quality in the decisions of the Board, at p. 2001:

 

6.  In considering this question, it is to be noted that the Act confers many areas of broad discretion on the Board in determining how the statute should be interpreted or applied to an infinite variety of factual situations.  Within these areas of discretion, decision-making has to turn on policy considerations.  At this level of "administrative law", law and policy are to a large degree inseparable.  In effect, law and policy come to be promulgated through the form of case by case decisions rendered by panels.  It is in this context that the Board is sometimes criticized for not creating enough certainty in "Board law" to facilitate the planning of the parties regulated by the statute.  This criticism, however, ignores the fact that there is a huge corpus of Board law much of which is almost as old as the legislation itself and as settled and stable as law can be.  Board decision‑making has recognized the need for uniformity and stability in the application of the statute and the discretions contained therein.  Indeed, it is because there is so much settled law and policy that upwards to 80% of unfair labour practice charges are withdrawn, dismissed, settled or adjusted without the issuance of a decision and that a high percentage of other matters are either settled or withdrawn without the need for a hearing . . . .  Thus, there is great incentive for the Board to articulate its policies clearly and, once articulated, to maintain and apply them.  Nevertheless, there remains, even in applying an established policy, an inevitable area of discretion in applying the statute to each fact situation.  Moreover, the Board reserves the right to change its policies as required and new amendments to the Act create additional requirements for ongoing policy analysis.  To perform its job effectively, the Board needs all the insight it can muster to evaluate the practical consequences of its decisions, for it lacks the capacity to ascertain by research and investigation just what impact its decisions have on labour relations and the economy generally.  In this context therefore, and accepting that no one panel of the Board can bind another panel by any decision rendered, what institutional procedures has the Board developed to foster greater insightfulness in the exercise of the Board's powers by particular panels?  What internal mechanisms has the Board developed to establish a level of thoughtfulness in the creation of policies which will meet the labour relations community's needs and stand the test of time?  What internal procedures has the Board developed to ensure the greatest possible understanding of these policies by all Board members in order to facilitate a more or less uniform application of such policies?  The meeting impugned by the respondent must be seen as only part of the internal administrative arrangements of the Board which have evolved to achieve a maximum regulatory effectiveness in a labour relations setting.  [Emphasis added.]

 

    It will be noted that Chairman Adams does not claim that the purpose of full board meetings is to achieve absolute uniformity in decisions made by different panels in factually similar situations.  Chairman Adams accepts that "no one panel of the Board can bind another panel by any decision rendered" (at p. 2001).  The methods used at those meetings to discuss policy issues reflect the need to maintain an atmosphere wherein each attending Board member retains the freedom to make up his mind on any given issue and to preserve the panel members' ultimate responsibility for the outcome of the final decision.  Thus, Chairman Adams states that discussions at full board meetings are limited to policy issues, that the facts of each case must be taken as presented and that no votes are taken nor any attendance recorded, at p. 2002:

 

8.  After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board members and vice‑chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make.  These "Full Board" meetings have been institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical consequences of proposed policy initiatives on labour relations and the economy in the Province.  But this institutional purpose is subject to the clear understanding that it is for the panel hearing the case to make the ultimate decision and that discussion at a "Full Board" meeting is limited to the policy implications of a draft decision.  The draft decision of a panel is placed before those attending the meeting by the panel and is explained by the panel members.  The facts set out in the draft are taken as given and do not become the subject of discussion.  No vote is taken at these meetings nor is any other procedure employed to identify a consensus.  The meetings invariably conclude with the Chairman thanking the members of the panel for outlining their problem to the entire Board and indicating that all Board members look forward to that panel's final decision whatever it might be.  No minutes are kept of such meetings nor is actual attendance recorded.  [Emphasis added.]

 

At page 2004 of his reasons, Chairman Adams confirmed that the impugned meeting was held in accordance with the above‑mentioned rules.

 

    Finally, Chairman Adams rejected the idea that full board meetings could have an overbearing effect on the panel members' capacity to decide the issues at hand in accordance with their opinion, at p. 2003:

 

10.  The respondent's submission is really attempting to probe the mental processes of the panel which rendered the decision in question and in so doing ignores the inherent nature of judicial decision‑making and administrative law making . . . . In general, the deliberations of this panel were not unlike those engaged in by a judge sitting in court.  The "Full Board" meeting, to the extent there is no judicial analogy, distinguishes an administrative agency from somewhat more individual common law judging.  But, as an extra‑record event, "Full Board" meetings are in substance no different than the post‑hearing consultation of a judge with his law clerks or the informal discussions that inevitably occur between brother judges.  Such meetings, we also suggest, have no greater or lesser effect than a judge's post‑hearing reading of reports and periodicals which may not have been cited or relied on by the advocates.

 

It follows that the full board meetings held by the Board are designed to promote discussion on important policy issues and to provide an opportunity for members to share their personal experiences in the regulation of labour relations.  There is no evidence that the particular meeting impugned in this case was used to impose any given opinion upon the members of the panel or that the spirit of discussion and exchange sought through those meetings was not present during those deliberations.  Moreover, three sets of reasons were issued by the members of the panel, one member dissenting in part while another dissented on the principal substantive issue at stake in this case.  If this meeting had been held for the purpose of imposing policy directives on the members of the panel, it certainly did not meet its objective.

 

    Incidentally, the record does not disclose the identity of all the persons who attended the impugned meeting.  In his affidavit, Mr. Gordon, counsel for the appellant before the Board, describes the events which led him to conclude that a full board meeting was taking place; he also lists the persons whom he saw entering or leaving the room where the meeting took place.  This affidavit does disclose that Mr. Wightman was seen leaving the room in which the meeting was held but there is no evidence that the other members of the panel did attend the meeting.  However, the Board's decision on the motion for reconsideration indicates that all members of the panel attended the meeting.

 

II - Decisions of the Courts Below

 

    Of the two decisions rendered by the Board in this case, only the reconsideration decision is relevant since it alone deals with the issue of the legality of the practice of holding full board meetings on important policy issues.  The Board decided that the practice of holding full board meetings on policy issues does not breach principles of natural justice because of its tripartite nature, the manner in which they are conducted and because of the institutional requirements which they serve.  According to Chairman Adams, with whom Messrs. Lee and Wightman concurred, ss. 102 and 103 of the Labour Relations Act create a procedural framework based on panels composed of three members and the high number of cases handled by the Board creates the necessity to have a large number of full‑time and part‑time members and, therefore, a wide variety of panels.  Such institutional constraints create the necessity to provide a mechanism which would promote a maximum amount of coherence in Board decisions.  In essence, the Board decided that full board meetings are a necessary component of decision making within the procedural framework of the Labour Relations Act and that they do not breach the principles of natural justice.

 

    In the Divisional Court (1985), 51 O.R. (2d) 481, Rosenberg J., with whom J. Holland J. concurred, allowed the appellant's application for judicial review on the basis that the impugned full board meeting allowed persons who did not hear the evidence to "participate" in the decision even though they did not vote.  Rosenberg J. adopted the recommendations of the McRuer Report entitled Royal Commission Inquiry into Civil Rights, 1971, vol. 5, Report No. 3, which dealt specifically with the Board and recommended that the parties be notified and given an opportunity to be heard whenever important policy issues must be dealt with by the entire Board, at pp. 2205‑06:

 

In Report Number 1 we pointed out that no person should participate in a decision of a judicial tribunal who was not present at the hearing and heard and considered the evidence and that all persons who had heard and considered the evidence should participate in the decision.

 

    The practice we have outlined violates that principle.  To take a matter before the full Board for a discussion and obtain the views of others who have not participated in the hearing and without the parties affected having an opportunity to present their views is a violation of the principle that he who decides must hear.

 

                                                                           . . .

 

    Notwithstanding that the ultimate decision is made by those who were present at the hearing, where a division of the Board considers that a matter should be discussed before the full Board or a larger division, the parties should be notified and given an opportunity to be heard.

 

The majority stated, at pp. 491‑92, that the practice of holding full board meetings creates situations where members who did not hear the evidence can have an influence over the result as well as situations where arguments are proposed by persons attending the meeting without giving the parties the opportunity to respond:

 

Chairman Shaw [sic] states in his reasons that the final decision was made by the three members who heard evidence and argument.  He cannot be heard to state that he and his fellow members were not influenced by the discussion at the full board meeting.  The format of the full board meeting made it clear that it was important to have input from other members of the board who had not heard the evidence or argument before the final decision was made.  The tabling of the draft decision to all the members of the board plus all of the support staff involved a substantial risk that opinions would be advanced by others and arguments presented.  It is probable that some of the people involved in the meeting would express points of view.  The full board meeting was only called when important questions of policy were being considered.  Surely, the discussion would involve policy reasons why s. 15 should be given either a broad or narrow interpretation.  Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence.  The parties to the dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.  [Emphasis added.]

 

Rosenberg J. then added at p. 492 that factual issues are necessarily built into policy issues since it is impossible, in his opinion, to decide factual issues without a prior determination of the legal standards applicable to them.

 

    Osler J. dissented on the basis that there is no authority prohibiting decision makers acting in a judicial capacity to engage in either formal or informal discussions with their colleagues concerning policy issues at stake in a case standing for judgment.  Full board meetings are merely a formalized method of seeking the opinion of colleagues on policy issues.  In fact, this practice is desirable given the importance of achieving a high degree of coherence in Board decisions.  Osler J. also noted that the tripartite procedural framework imposed by the Labour Relations Act made it necessary to resort to full board meetings as a means of achieving such coherence.  Finally, Osler J. held that the record in this case does not indicate that either new evidence was heard during the impugned meeting or that new ideas requiring a reply from the parties were discussed during this meeting.  The policy alternatives had all been proposed by the parties during argument and Chairman Adams' decision as well as Mr. Wightman's dissent simply adopted one of the alternatives.

 

    The Court of Appeal (1986), 56 O.R. (2d) 513, unanimously allowed the appeal for the reasons set out in Osler J.'s dissent.  Cory J.A. (as he then was) added that the following limitations on the practice of holding full board meetings on policy issues must be observed by the Board, at p. 517:

 

    It must be stressed, however, and indeed it was conceded by the appellants, that if new evidence was considered by the entire Board during its discussion, then both parties would have to be recalled, advised of the new evidence and given full opportunity to respond to it in whatever manner they deemed appropriate.  In the absence of the introduction of fresh material, the evidence must be taken as found in the draft reasons for the purposes of the full Board discussions.

 

    As in any judicial or quasi‑judicial proceeding, the panel should not decide the matter upon a ground not raised at the hearing without giving the parties an opportunity for argument.  It is also an inflexible rule that while the panel may receive advice there can be no participation by other members of the Board in the final decision.

 

It was therefore the view of the Court of Appeal that, while some precautions are necessary in the use of any formalized consultation process, the full board meeting procedure described by Chairman Adams does not violate any principle of natural justice.

 

III - Analysis

 

(a)  Introduction

 

    It is useful to begin with a summary of the arguments submitted by the parties.  The appellant argues that the practice of holding full board meetings on policy issues constitutes a breach of a rule of natural justice appropriately referred to as "he who decides must hear".  According to the appellant's version of this rule, a decision maker must not be placed in a situation where he can be "influenced" by persons who have not heard the evidence or the arguments.  Thus, the appellant's position is that panel members must be totally shielded from any discussion which may cause them to change their minds even if this change of opinion is honest, because the possibility of undue pressure by other Board members is too ominous to be compatible with principles of natural justice.  The appellant also claims that full board meetings do not provide the parties with an adequate opportunity to answer arguments which may be voiced by Board members who have not heard the case.

 

    It is important to note at the outset that the appellant's arguments raise issues with respect to two important and distinct rules of natural justice.  It has often been said that these rules can be separated in two categories, namely "that an adjudicator be disinterested and unbiased (nemo judex in causa sua) and that the parties be given adequate notice and opportunity to be heard (audi alteram partem)":  Evans, de Smith's Judicial Review of Administrative Action (4th ed. 1980), at p. 156; see also Pépin and Ouellette, Principes de contentieux administratif (2nd ed. 1982), at pp. 148‑49.  While the appellant does not claim that the panel was biased, it does claim that full board meetings may prevent a panel member from deciding the topic of discussion freely and independently from the opinions voiced at the meeting.  Independence is an essential ingredient of the capacity to act fairly and judicially and any procedure or practice which unduly reduces this capacity must surely be contrary to the rules of natural justice.

 

    The respondent union argues that the practice of holding full board meetings on important policy issues is one which is justified for the reasons set forth by Chairman Adams in the reconsideration decision quoted previously.

 

    Before embarking on an analysis of these arguments, one should keep in mind the difference between a full board meeting and a full board hearing:  a full board hearing is simply a normal hearing where representations are made by both parties in front of an enlarged panel comprised of all the members of the Board in the manner prescribed by s. 102 of the Labour Relations Act; on the other hand, a full board meeting does not entail representations by the parties since they are not invited to or even notified of the meeting.  The procedure recommended by the McRuer Report is somewhat different in that it entails the presence of the parties at an informal meeting where they would have the right to answer the arguments raised by members of the Board.  In this case, the parties have not made any arguments on the relative virtues of these procedures and have restricted their arguments to the legality of the full board meeting procedure in relation to the rules of natural justice.

 

    I agree with the respondent union that the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal.  These tribunals are created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads.  It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts of law.  In fact, it has long been recognized that the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and of the institutional constraints it faces.  This principle was reiterated by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113:

 

    2.  As a constituent of the autonomy it enjoys, the tribunal must observe natural justice which, as Harman L.J. said, [Ridge v. Baldwin, at p. 850] is only "fair play in action".  In any particular case, the requirements of natural justice will depend on "the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject‑matter which is being dealt with, and so forth":  per Tucker L.J. in Russell v. Duke of Norfolk, at p. 118.  To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.  [Emphasis added.]

 

The main issue is whether, given the importance of the policy issue at stake in this case and the necessity of maintaining a high degree of quality and coherence in Board decisions, the rules of natural justice allow a full board meeting to take place subject to the conditions outlined by the Court of Appeal and, if not, whether a procedure which allows the parties to be present, such as a full board hearing, is the only acceptable alternative.  The advantages of the practice of holding full board meetings must be weighed against the disadvantages involved in holding discussions in the absence of the parties.

 

(b)  The Consequences of the Institutional Constraints Faced by the Board

 

    The Labour Relations Act has entrusted the Board with the responsibility of fostering harmonious labour relations through collective bargaining, as appears clearly in the preamble of the Act:

 

WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

 

The Board has been granted the powers thought necessary to achieve this task, not the least of which is the power to decide in a final and conclusive manner all matters which fall within its jurisdiction:  s. 106(1) of the Labour Relations Act.  As was stated by Chairman Adams in his reconsideration decision, the Board has also been given very broad discretionary powers as is the case with the power to determine what constitutes "bargaining in good faith" (s. 15).

 

    The immensity of the task entrusted to the Board should not be underestimated.  As Chairman Adams wrote in the reconsideration decision, the Board had a caseload of 3189 cases to handle in 1982‑83 and employed 12 full‑time chairman and vice‑chairmen, 4 part‑time vice‑chairmen, 10 full‑time Board members representing labour and management as well as another 22 part‑time Board members to hear and decide those cases.  The Board's full‑time chairman and vice‑chairmen have an average caseload of 266 cases per year.  Moreover, the tripartite nature of the Board makes it necessary to have an equal representation from management and labour unions on each panel as appears clearly from s. 102 of the Labour Relations Act:

 

    102.--(1)  The Ontario Labour Relations Board is continued.

 

    (2)  The Board shall be composed of a chairman, one or more vice‑chairmen and as many members equal in number representative of employers and employees respectively as the Lieutenant Governor in Council considers proper, all of whom shall be appointed by the Lieutenant Governor in Council.

 

                                                                           . . .

 

    (9)  The chairman or a vice‑chairman, one member representative of employers and one member representative of employees constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Board.

 

                                                                           . . .

 

    (11)  The decision of the majority of the members of the Board present and constituting a quorum is the decision of the Board, but, if there is no majority, the decision of the chairman or vice‑chairman governs.

 

The rules governing the quorum of any panel of the Board are especially suited for panels of three although they do not appear to prevent the formation of a larger panel.  However, even if the Labour Relations Act allows full board hearings, such a procedure would not necessarily be practical every time an important policy issue is at stake.

 

    Indeed, it is apparent from the size of the Board's caseload and from the number of persons which would sit on such an enlarged panel that holding full board hearings is a highly impractical way of solving important policy issues.  Furthermore, the difficulties involved in setting up a panel comprised of an equal number of management and labour representatives and in scheduling such a meeting are also obvious when one takes into consideration the large number of Board members who would have to be present.  In fact, one wonders whether it is really possible to call a full board hearing every time an important policy issue arises.  The solution proposed in the McRuer Report, i.e., allowing the parties to be present and to answer the arguments made at the meeting, would entail similar difficulties since their presence would necessitate some formal procedure and involve organizational difficulties as well.

 

    The first rationale behind the need to hold full board meetings on important policy issues is the importance of benefiting from the acquired experience of all the members, chairman and vice‑chairmen of the Board.  Moreover, the tripartite nature of the Board makes it even more imperative to promote exchanges of opinions between management and union representatives.  As was pointed out clearly by Dickson J. (as he then was) in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, the primary purpose of the creation of administrative bodies such as the Ontario Labour Relations Board is to confer a wide jurisdiction to solve labour disputes on those who are best able, in light of their experience, to provide satisfactory solutions to these disputes, at pp. 235‑36:

 

Section 101 constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the Board.  Privative clauses of this type are typically found in labour relations legislation.  The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling.  The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations.  In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

 

The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated experience of its members.  On the contrary, the rules of natural justice should in their application reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties.

 

    The second rationale for the practice of holding full board meetings is the fact that the large number of persons who participate in Board decisions creates the possibility that different panels will decide similar issues in a different manner.  It is obvious that coherence in administrative decision making must be fostered.  The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be "[TRANSLATION] difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one":  Morissette, Le contrôle de la compétence d'attribution:  thèse, antithèse et synthèse (1986), 16 R.D.U.S. 591, at p. 632.  Given the large number of decisions rendered in the field of labour law, the Board is justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases.  The fact that the Board's decisions are protected by a privative clause (s. 108) makes it even more imperative to take measures such as full board meetings in order to avoid such conflicting results.  At the same time, the decision of one panel cannot bind another panel and the measures taken by the Board to foster coherence in its decision making must not compromise any panel member's capacity to decide in accordance with his conscience and opinions.

 

    A full board meeting is a forum for discussion which, in Cory J.A.'s words (as he then was) is "no more than an amplification of the research of the hearing panel carried out before they delivered their decision" (at p. 517).  Like many other judicial practices, however, full board meetings entail some imperfections, especially with respect to the opportunity to be heard and the judicial independence of the decision maker, as is correctly pointed out by Professors Blache and Comtois in "La décision institutionnelle" (1986), 16 R.D.U.S. 645, at pp. 707‑8:

 

    [TRANSLATION]  There are advantages and disadvantages to institutionalizing the decision‑making process.  The main advantages with which it is credited are increasing the efficiency of the organization as well as the quality and consistency of decisions.  It is felt that institutional decisions tend to promote the equal treatment of individuals in similar circumstances, increase the likelihood of better quality decisions and lead to a better allocation of resources.  Against this it is feared that institutionalization creates a danger of the introduction, without the parties' knowledge, of evidence and ideas obtained extraneously and reduces the decision maker's personal responsibility for the decision to be made.

 

The question before this Court is whether the disadvantages involved in this practice are sufficiently important to warrant a holding that it constitutes a breach of the rules of natural justice or whether full board meetings are consistent with these rules provided that certain safeguards be observed.

 

(c)The Judicial Independence of Panel Members in the Context of a Full Board Meeting

 

    The appellant argues that persons who did not hear the evidence or the submissions of the parties should not be in a position to "influence" those who will ultimately participate in the decision, i.e., vote for one side or the other.  The appellant cites the following authorities in support of its argument:  Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, at p. 351; The King v. Huntingdon Confirming Authority, [1929] 1 K.B. 698, at pp. 715 and 717; Re Rosenfeld and College of Physicians and Surgeons (1969), 11 D.L.R. (3d) 148 (Ont. H.C.), at pp. 161‑64; Regina v. Broker‑Dealers' Association of Ontario (1970), 15 D.L.R. (3d) 385 (Ont. H.C.), at pp. 394‑95; Re Ramm (1957), 7 D.L.R. (2d) 378 (Ont. C.A.), at pp. 382‑83; Regina v. Committee on Works of Halifax City Council (1962), 34 D.L.R. (2d) 45 (N.S.S.C.), at pp. 53‑55; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, at p. 594; Re Rogers (1978), 20 Nfld. &  P.E.I.R. 484 (P.E.I.S.C.), at p. 499; Doyle v. Restrictive Trade Practices Commission, [1985] 1 F.C. 362 (C.A.), at p. 371; Royal Commission Inquiry into Civil Rights, vol. 5, Report No. 3, c. 124, at pp. 2004‑5.  In all those decisions with the exception of Re Rogers, some of the members of the panel which rendered the impugned decision had not heard all the evidence or all the representations of the parties; their vote was cast even though some of the members of these panels did not have the benefit of assessing the credibility of the witnesses or the validity of the factual and legal arguments.  I agree that, as a general rule, the members of a panel who actually participate in the decision must have heard all the evidence as well as all the arguments presented by the parties and in this respect I adopt Pratte J.'s words in Doyle v. Restrictive Trade Practices Commission, supra, at pp. 368‑69:

 

The important issue is whether the maxim "he who decides must hear" invoked by the applicant should be applied here.

 

    This maxim expresses a well‑known rule according to which, where a tribunal is responsible for hearing and deciding a case, only those members of the tribunal who heard the case may take part in the decision.  It has sometimes been said that this rule is a corollary of the audi alteram partem rule.  This is true to the extent a litigant is not truly "heard" unless he is heard by the person who will be deciding his case . . . .  This having been said, it must be realized that the rule "he who decides must hear", important though it may be, is based on the legislator's supposed intentions.  It therefore does not apply where this is expressly stated to be the case; nor does it apply where a review of all the provisions governing the activities of a tribunal leads to the conclusion that the legislator could not have intended them to apply.  Where the rule does apply to a tribunal, finally, it requires that all members of the tribunal who take part in a decision must have heard the evidence and the representations of the parties in the manner in which the law requires that they be heard.

 

In that case, one of the issues was whether it was sufficient for the members of the panel who had not heard the evidence to read the transcripts and this question was answered in the negative in light of the relevant statutory provisions.  In this case, however, the members of the panel who participated in the impugned decision, i.e., Chairman Adams and Messrs. Wightman and Lee, heard all the evidence and all the arguments.  It follows that the cases cited by the appellant cannot support its argument, nor can the presence of other Board members at the full board meeting amount to "participation" in the final decision even though their contribution to the discussions which took place at that meeting can be seen as a "participation" in the decision‑making process in the widest sense of that expression.

 

    However, the appellant claims that the following extract from the reasons of Romer J. in The King v. Huntingdon Confirming Authority, supra,  constitutes the basis of a rule whereby decision makers who have heard all the evidence and representations should not be influenced by persons who have not, at p. 717:

 

Further, I would merely like to point this out:  that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25.  There was a division of opinion.  The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.  [Emphasis added.]

 

Thus, Romer J. was of the opinion that the influence of those who did not hear the evidence could go beyond their vote and that this influence constituted a denial of natural justice.  Following that reasoning, it was held in Re Rogers that the presence of a person who heard neither the evidence nor the representations at one of the meetings where a quorum of the Prince Edward Island Land Use Commission was deliberating invalidated the decision of the Commission even though that person did not vote on the matter.  The opposite result was reached in Underwater Gas Developers Ltd. v. Ontario Labour Relations Board (1960), 24 D.L.R. (2d) 673 (Ont. C.A.), where it was held that the presence of Board members who neither heard the evidence nor voted on the matter did not invalidate the Board's decision, at p. 675.

 

    I am unable to agree with the proposition that any discussion with a person who has not heard the evidence necessarily vitiates the resulting decision because this discussion might "influence" the decision maker.  In this respect, I adopt Meredith C.J.C.P.'s words in Re Toronto and Hamilton Highway Commission and Crabb (1916), 37 O.L.R. 656 (C.A.), at p. 659:

 

The Board is composed of persons occupying positions analogous to those of judges rather than of arbitrators merely; and it is not suggested that they heard any evidence behind the back of either party; the most that can be said is that they -- that is, those members of the Board who heard the evidence and made the award ‑‑ allowed another member of the Board, who had not heard the evidence, or taken part in the inquiry before, to read the evidence and to express some of his views regarding the case to them . . . .  [B]ut it is only fair to add that if every Judge's judgment were vitiated because he discussed the case with some other Judge a good many judgments existing as valid and unimpeachable ought to fall; and that if such discussions were prohibited many more judgments might fall in an appellate Court because of a defect which must have been detected if the subject had been so discussed.  [Emphasis added.]

 

    The appellant's main argument against the practice of holding full board meetings is that these meetings can be used to fetter the independence of the panel members.  Judicial independence is a long standing principle of our constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection.  It is useful to define this concept before discussing the effect of full board meetings on panel members.  In Beauregard v. Canada, [1986] 2 S.C.R. 56, Dickson C.J. described the "accepted core of the principle of judicial independence" as a complete liberty to decide a given case in accordance with one's conscience and opinions without interference from other persons, including judges, at p. 69:

 

    Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them:  no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.  This core continues to be central to the principle of judicial independence.

 

See also Valente v. The Queen, [1985] 2 S.C.R. 673, at pp. 686‑87, and Benyekhlef, Les garanties constitutionnelles relatives à l'indépendance du pouvoir judiciaire au Canada, at p. 48.

 

    It is obvious that no outside interference may be used to compel or pressure a decision maker to participate in discussions on policy issues raised by a case on which he must render a decision.  It also goes without saying that a formalized consultation process could not be used to force or induce decision makers to adopt positions with which they do not agree.  Nevertheless, discussions with colleagues do not constitute, in and of themselves, infringements on the panel members' capacity to decide the issues at stake independently.  A discussion does not prevent a decision maker from adjudicating in accordance with his own conscience and opinions nor does it constitute an obstacle to this freedom.  Whatever discussion may take place, the ultimate decision will be that of the decision maker for which he assumes full responsibility.

 

    The essential difference between full board meetings and informal discussions with colleagues is the possibility that moral suasion may be felt by the members of the panel if their opinions are not shared by other Board members, the chairman or vice‑chairmen.  However, decision makers are entitled to change their minds whether this change of mind is the result of discussions with colleagues or the result of their own reflection on the matter.  A decision maker may also be swayed by the opinion of the majority of his colleagues in the interest of adjudicative coherence since this is a relevant criterion to be taken into consideration even when the decision maker is not bound by any stare decisis rule.

 

    It follows that the relevant issue in this case is not whether the practice of holding full board meetings can cause panel members to change their minds but whether this practice impinges on the ability of panel members to decide according to their opinions.  There is nothing in the Labour Relations Act which gives either the chairman, the vice‑chairmen or other Board members the power to impose his opinion on any other Board member.  However, this de jure situation must not be thwarted by procedures which may effectively compel or induce panel members to decide against their own conscience and opinions.

 

    It is pointed out that "justice should not only be done, but should manifestly and undoubtedly be seen to be done":  see Rex v. Sussex Justices, [1924] 1 K.B. 256, at p. 259.  This maxim applies whenever the circumstances create the danger of an injustice, for example when there is a reasonable apprehension of bias, even if the decision maker has completely disregarded these circumstances.  However, in my opinion and for the reasons which follow, the danger that full board meetings may fetter the judicial independence of panel members is not sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this Court in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, reaffirmed and applied as the criteria for judicial independence in Valente v. The Queen, supra, at p. 684 (see also p. 689):

 

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.  In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- concluded . . . ."

 

    A full board meeting set up in accordance with the procedure described by Chairman Adams is not imposed:  it is called at the request of the hearing panel or any of its members.  It is carefully designed to foster discussion without trying to verify whether a consensus has been reached:  no minutes are kept, no votes are taken, attendance is voluntary and presence at the full board meeting is not recorded.  The decision is left entirely to the hearing panel.  It cannot be said that this practice is meant to convey to panel members the message that the opinion of the majority of the Board members present has to be followed.  On the other hand, it is true that a consensus can be measured without a vote and that this institutionalization of the consultation process carries with it a potential for greater influence on the panel members.  However, the criteria for independence are* not absence of influence but rather the freedom to decide according to one's own conscience and opinions.  In fact, the record shows that each panel member held to his own opinion since Mr. Wightman dissented and Mr. Lee only concurred in part with Chairman Adams.  It is my opinion, in agreement with the Court of Appeal, that the full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties.  The Board's practice of holding full board meetings or the full board meeting held on September 23, 1983 would not be perceived by an informed person viewing the matter realistically and practically -- and having thought the matter through -- as having breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice.

 

(d)  Full Board Meetings and the Audi Alteram Partem Rule

 

    Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram partem rule because the parties are not aware of what is said at those meetings and do not have an opportunity to reply to new arguments made by the persons present at the meeting.  In addition, there is always the danger that the persons present at the meeting may discuss the evidence.

 

    For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues.  In every decision, panel members must determine what the facts are, what legal standards apply to those facts and, finally, they must assess the evidence in accordance with these legal standards.  In this case, for example, the Board had to determine which events led to the decision to close the Hamilton plant and, in turn, decide whether the appellant had failed to bargain in good faith by not informing of an impending plant closing either on the basis that a "de facto decision" had been taken or on some other basis.  The determination and assessment of facts are delicate tasks which turn on the credibility of the witnesses and an overall evaluation of the relevancy of all the information presented as evidence.  As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result.  Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision.  However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence.

 

    It is already recognized that no new evidence may be presented to panel members in the absence of the parties:  Kane v. Board of Governors of the University of British Columbia, supra, at pp. 1113‑14.  The appellant does not claim that new evidence was adduced at the meeting and the record does not disclose any such breach of the audi alteram partem rule.  The defined practice of the Board at full board meetings is to discuss policy issues on the basis of the facts as they were determined by the panel.  The benefits to be derived from the proper use of this consultation process must not be denied because of the mere concern that this established practice might be disregarded, in the absence of any evidence that this has occurred.  In this case, the record contains no evidence that factual issues were discussed by the Board at the September 23, 1983 meeting.

 

    In his reasons for judgment, Rosenberg J. has raised the issue of whether discussions on policy issues can be completely divorced from the factual findings, at p. 492:

 

    In this case there was a minority report.  Although the chairman states that the facts in the draft decision were taken as given there is no evidence before us to indicate whether the facts referred to those in the majority report or the minority report or both.  Also, without in any way doubting the sincerity and integrity of the chairman in making such a statement, it is not practical to have all of the facts decided except against a background of determination of the principles of law involved.  For example, a finding that Consolidated‑Bathurst was seriously considering closing the Hamilton plant is of no significance if the requirement is that the failure to bargain in good faith must be a de facto decision to close.  Accordingly, until the board decides what the test is the findings of fact cannot be finalized.

 

With respect, I must disagree with Rosenberg J. if he suggests that it is not practical to discuss policy issues against the factual background provided by the panel.

 

    It is true that the evidence cannot always be assessed in a final manner until the appropriate legal test has been chosen by the panel and until all the members of the panel have evaluated the credibility of each witness.  However, it is possible to discuss the policy issues arising from the body of evidence filed before the panel even though this evidence may give rise to a wide variety of factual conclusions.  In this case, Mr. Wightman seemed to disagree with Chairman Adams with respect to the credibility of the testimonies of some of the appellant's witnesses.  While this might be relevant to Mr. Wightman's conclusions, it was nevertheless possible to outline the policy issues at stake in this case from the summary of the facts prepared by Chairman Adams.  In turn, it was possible to outline the various tests which could be adopted by the panel and to discuss their appropriateness from a policy point of view.  These discussions can be segregated from the factual decisions which will determine the outcome of the case once a test is adopted by the panel.  The purpose of the policy discussions is not to determine which of the parties will eventually win the case but rather to outline the various legal standards which may be adopted by the Board and discuss their relative value.

 

    Policy issues must be approached in a different manner because they have, by definition, an impact which goes beyond the resolution of the dispute between the parties.  While they are adopted in a factual context, they are an expression of principle or standards akin to law.  Since these issues involve the consideration of statutes, past decisions and perceived social needs, the impact of a policy decision by the Board is, to a certain extent, independent from the immediate interests of the parties even though it has an effect on the outcome of the complaint.

 

    I have already outlined the reasons which justify discussions between panel members and other members of the Board.  It is now necessary to consider the conditions under which full board meetings must be held in order to abide by the audi alteram partem rule.  In this respect, the only possible breach of this rule arises where a new policy or a new argument is proposed at a full board meeting and a decision is rendered on the basis of this policy or argument without giving the parties an opportunity to respond.

 

    I agree with Cory J.A. (as he then was) that the parties must be informed of any new ground on which they have not made any representations.  In such a case, the parties must be given a reasonable opportunity to respond and the calling of a supplementary hearing may be appropriate.  The decision to call such a hearing is left to the Board as master of its own procedure:  s. 102(13) of the Labour Relations Act.  However, this is not a case where a new policy undisclosed or unknown to the parties was introduced or applied.  The extent of the obligation of an employer engaged in collective bargaining to disclose information regarding the possibility of a plant closing was at the very heart of the debate from the outset and had been the subject of a policy decision previously in the Westinghouse case.  The parties had every opportunity to deal with the matter at the hearing and indeed presented diverging proposals for modifying the policy.  There is no evidence that any new grounds were put forward at the meeting and each of the reasons rendered by Chairman Adams and Messrs. Wightman and Lee simply adopts one of the arguments presented by the parties and summarized at pp. 1427‑30 of Chairman Adams' decision.  Though the reasons are expressed in great detail, the appellant does not identify any of them as being new nor does it contend that it did not have an opportunity to be heard or to deal with them.

 

    Since its earliest development, the essence of the audi alteram partem rule has been to give the parties a "fair opportunity of answering the case against [them]":  Evans, de Smith's Judicial Review of Administrative Action (4th ed. 1980), at p. 158.  It is true that on factual matters the parties must be given a "fair opportunity . . . for correcting or contradicting any relevant statement prejudicial to their view":  Board of Education v. Rice, [1911] A.C. 179, at p. 182; see also Local Government Board v. Arlidge, [1915] A.C. 120, at pp. 133 and 141, and Kane v. Board of Governors of the University of British Columbia, supra, at p. 1113.  However, the rule with respect to legal or policy arguments not raising issues of fact is somewhat more lenient because the parties only have the right to state their case adequately and to answer contrary arguments.  This right does not encompass the right to repeat arguments every time the panel convenes to discuss the case.  For obvious practical reasons, superior courts, in particular courts of appeal, do not have to call back the parties every time an argument is discredited by a member of the panel and it would be anomalous to require more of administrative tribunals through the rules of natural justice.  Indeed, a reason for their very existence is the specialized knowledge and expertise which they are expected to apply.

 

    I therefore conclude that the consultation process described by Chairman Adams in his reconsideration decision does not violate the audi alteram partem rule provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from such a meeting.  In this case, an important policy issue, namely the validity of the test adopted in the Westinghouse case, was at stake and the Board was entitled to call a full board meeting to discuss it.  There is no evidence that any other issues were discussed or indeed that any other arguments were raised at that meeting and it follows that the appellant has failed to prove that it has been the victim of any violation of the audi alteram partem rule.  Indeed, the decision itself indicates that it rests on considerations known to the parties upon which they had full opportunity to be heard.

 

IV - Conclusion

 

    The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice‑chairmen and members of the Board can be shared to improve the overall quality of its decisions.  Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances.  An institutionalized consultation process will not necessarily lead Board members to reach a consensus but it provides a forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand.

 

    The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice.  The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice.  In this respect, I adopt the words of Professors Blache and Comtois in "La décision institutionnelle", op. cit., at p. 708:

 

    [TRANSLATION]  The institutionalizing of decisions exists in our law and appears to be there to stay.  The problem is thus not whether institutional decisions should be sanctioned, but to organize the process in such a way as to limit its dangers.  There is nothing revolutionary in this approach: it falls naturally into the tradition of English and Canadian jurisprudence that the rules of natural justice should be flexibly interpreted.

 

The consultation process adopted by the Board formally recognizes the disadvantages inherent in full board meetings, namely that the judicial independence of the panel members may be fettered by such a practice and that the parties do not have the opportunity to respond to all the arguments raised at the meeting.  The safeguards attached to this consultation process are, in my opinion, sufficient to allay any fear of violations of the rules of natural justice provided as well that the parties be advised of any new evidence or grounds and given an opportunity to respond.  The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural justice.

 

    For these reasons, I would dismiss the appeal with costs.

 

    Appeal dismissed with costs, LAMER and SOPINKA JJ. dissenting.

 

    Solicitors for the appellant:  Beard, Winter, Toronto.

 

    Solicitors for the respondent International Woodworkers of America, Local 2‑69:  Cavalluzzo, Hayes & Lennon, Toronto.

 

    Solicitors for the respondent Ontario Labour Relations Board:  Gowling & Henderson, Ottawa.

 



     * See Erratum, [1990] 1 S.C.R. iv

 

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