A-1024-90
J. F. Wiebe (Applicant)
v.
Her Majesty the Queen (Respondent)
INDEXED AS: WIEBE V. CANADA (CA.)
Court of Appeal, Heald, Mahoney and Hugessen
JJ.A.—Ottawa, April 1 and 3, 1992.
Judicial review — Whether administrative tribunals must
follow practice of ordering witnesses excluded prior to testify
ing — Appeal Board under Public Service Employment Act, s.
21 refusing to exclude each of two members of Screen-
ing/Selection Board while other testifying as not convinced wit
nesses should be excluded — Appeal based on screening and
selection processes — Board exercising discretion on wrong
principle — In law courts presumption in favour of exclusion,
and onus on party opposing exclusion to show why order
should not be granted — Refusal, rather than exclusion,
requiring justification — Requirements for administrative
tribunals depending upon nature of inquiry and extent to which
procedure adversarial — S. 21 proceedings adversarial — As
circumstances so similar to trial, Board should be governed by
same considerations as court upon application for exclusion of
witnesses — Natural for Screening/Selection Board members
to put decisions in best possible light when challenged, creat
ing presumption in favour of exclusion in interests of fairness
and accuracy in fact finding — Proper question whether any
reason why witnesses should not be excluded — As difficult to
specify grounds for exclusion before testimony, exclusion
based on mere possibility of bias, fabrication or tailoring of
evidence.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Employment Act, R.S.C., 1985, c. P-33,
s. 21.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Millward v. Public Service Commission, [1974] 2 F.C.
530; (1974), 49 D.L.R. (3d) 295 (T.D.).
REFERRED TO:
Schwartz v. R., [1982] 1 F.C. 386 (C.A.); Sorobey v.
Canada (Public Service Commission Appeal Board),
[1987] 1 F.C. 219; (1986), 72 N.R. 318 (C.A.).
AUTHORS CITED
Sopinka, John et al., The Law of Evidence in Canada,
Toronto: Butterworths, 1992.
APPLICATION to set aside Appeal Board's deci
sion in an appeal against an appointment based on its
refusal to exclude certain witnesses from the hearing
while others were being examined as to the screening
and selection process. Appeal allowed.
COUNSEL:
Catherine H. MacLean for applicant.
Geoffrey S. Lester for respondent.
SOLICITORS:
NelliganlPower, Ottawa, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: An order for the exclusion of wit
nesses from the courtroom, up until such time as they
have given their evidence, is commonly sought and
routinely granted in trials before courts of law.t This
section 28 [Federal Court Act, R.S.C., 1985, c. F-7]
application raises the question of how far an adminis
trative tribunal may be obliged to follow this same
rule of conduct.
The application is brought against a decision of an
Appeal Board appointed pursuant to section 21 of the
Public Service Employment Act. 2 The Board was
seized of an appeal by the applicant against a pro
posed appointment to the position of Senior Excise
Auditor, AU-02, Revenue Canada, Customs and
Excise, Winnipeg. The applicant was an unsuccessful
candidate who had been screened out at an early
One of the earliest recorded and spectacularly successful
such applications is recounted in the apocryphal story of
Susanna and the Elders, Daniel 13,51.
2 R.S.C., 1985, c. P-33
stage of the competition as not having the necessary
qualifications. The screening out had been done by a
Screening Board composed of two persons both of
whom were present as witnesses at the Appeal Board
hearing. The selection of the successful candidate had
been effected by a Selection Board composed of the
same two persons together with a third person who
acted as the employer's representative in the proceed
ings before the Appeal Board.
At the opening of the hearing, the applicant's rep
resentative asked that each of the two members of the
Screening/Selection Board be excluded from the
room while the other was being examined as to the
detail of the screening and selection process. No
objection seems to have been taken to the presence of
the third member of the Selection Board who, as
noted, was acting as the employer's representative.
The Appeal Board refused to order such exclusion.
In her written decision following the hearing, the
Chairperson explained this refusal in these words:
I had not been convinced that in a case of this kind, one Board
member's hearing anther's testimony as to why a decision
was reached, could affect the findings that I had to make with
respect to the reasonableness of the conclusions. I mentioned
that I could certainly change my ruling if the discussion
involved bias or some other area where exclusion of witnesses
would be appropriate. (Case, pages 161-162)
In my view, the Appeal Board was wrong to hold
as it did.
While there can be no doubt that the Board is
master of its own procedure and that, in any event,
the decision as to whether or not to exclude witnesses
is a matter of discretion, it is my view that the discre
tion was here exercised upon a wrong principle.
In a court of law the order to exclude witnesses is
granted "as a matter of course". 3 That is to say that
there is a presumption in favour of exclusion when it
is sought and it is for the party opposing such exclu
sion to demonstrate that the order should not be
granted with respect to some or all of the witnesses.
Very commonly, the parties themselves, or their rep
resentatives, are exempted from the exclusion order
3 Sopinka, John et al., The Law of Evidence in Canada,
(Toronto: Butterworths, 1992), at p.826.
so as to ensure the fairness of the hearing. It is also
common to exempt experts on the ground that their
evidence, being a matter of opinion, is less likely to
be improperly influenced by hearing the evidence of
others. The matter being one of discretion, there are
many other circumstances where the exclusion of
witnesses may properly be refused, but they all have
in common that it is the refusal rather than the exclu
sion which requires justification.
Clearly, administrative tribunals are not always
held to follow the same rules as courts. The require
ments for any particular tribunal will depend upon
the nature of the inquiry being conducted and
whether and to what extent the procedure may prop
erly be seen as adversarial. In the case of the Appeal
Boards appointed under section 21 of the Public Ser
vice Employment Act generally, and more specifically
in the particular circumstances of this case, it is my
view that the Board should have approached its dis
cretion in the same way as would a court.
Proceedings under section 21, though styled an
"inquiry", are very much adversarial in nature, with
the applicant and the employer each being on oppo
site sides of the question and each generally being
represented by persons experienced in this special
ized type of dispute. The situation was aptly
described by Cattanach J. in the Trial Division as
follows:
While there is not a lis inter parties [sic] in the true sense of
that term, there is, nevertheless, a contest between two parties.
The deputy head is before the board to justify that the selection
of the successful candidate was on the basis of the merit sys
tem and the unsuccessful candidate is present to establish that
this was not the case. Such situation has been described and
established by authority as a quasi -lis between quasi-parties.
Often there will be one or more other interested
parties as well, notably successful candidates or per
sons whose names have been placed on the eligible
4 Millward v. Public Service Commission, [1974] 2 F.C. 530,
at p. 539.
list. 5 They are entitled as of right to participate 6 and
if they choose to give evidence they must submit
themselves to cross-examination? The circumstances
being so similar to those of a trial, the Appeal Board
should be governed by the same considerations when
considering the exclusion of witnesses.
Turning to the particular facts of this case, it will
be recalled that the request for exclusion was specifi
cally directed (and limited) to the two members of the
Screening Board and that the third member of the
Selection Board, who was serving as the employer's
representative, was necessarily going to be present
throughout the hearing in that capacity. The inquiry
itself was directed in particular to the process by
which the applicant had been screened out by the
Screening Board and to that by which the successful
candidate had been selected by the Selection Board.
Members of such Boards are only human and one can
hardly expect other of them than to attempt to put
their decisions in the best possible light when chal
lenged. Those facts, of themselves, created a strong
presumption in favour of the Appeal Board's order
ing exclusion in the interests of fairness and accuracy
in fact finding. It is not without significance that the
final decision of the Board, when made, contained a
number of favourable findings of credibility regard
ing the members of the Screening Board, findings
upon which respondent's counsel was quick to rely
when arguing another aspect of this application.
In my view, the Appeal Board erred in law by
exercising its discretion to exclude witnesses upon a
wrong principle. Instead of asking itself whether
there were any reasons why the two members of the
Screening and Selection Boards should not be
excluded, a question to which there could only be one
answer in the circumstances, the Board asked itself
whether it was convinced that they should be
excluded. Since exclusion orders, by their very
nature, are sought and obtained before the witnesses
have testified, it is very difficult for a party to specify
and articulate grounds for exclusion in advance. Such
5 The successful candidate in this case appeared but made no
representations before the Appeal Board.
6 Schwartz v. R., [1982] 1 F.C. 386 (C.A.).
7 Sorobey v. Canada (Public Service Commission Appeal
Board), [1987] 1 F.C. 219 (C.A.).
grounds will at that stage necessarily be based on the
mere possibility or suspicion of bias, fabrication or
tailoring of evidence. Once the evidence has been
given and there is material upon which such an alle
gation may be supported, it is too late and the damage
has been done.
Since, in my view, there must be a new hearing, it
is not appropriate for us to deal with the second
ground of the applicant's attack which bears upon the
merits of the decision of the Appeal Board.
I would allow the section 28 application, I would
set aside the decision of the Appeal Board and I
would refer the matter back for a new hearing before
another Appeal Board to be established by the Public
Service Commission.
HEALD J.A. concurred.
MAHONEY J.A. concurred.
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