Code of Conduct and Guidelines for Members of the Federal Public Sector Labour Relations and Employment Board
- In performing their duties, members (Chairperson group, full-time and part-time members) are involved primarily in a quasi-judicial decision making process that determines the rights and entitlements of one interest against another. Clearly, the proper exercise of these duties requires a high standard of conduct on the part of the members.
- Members must strive at all times to make their decisions in a manner that is independent, fair, objective, impartial and free of conflict of interest and bias. However, a member's duty does not stop at ensuring that there is no actual bias:
With respect to the question of reasonable apprehension of bias, there is no dispute that the issue is not whether the members named are actually biased . . . but whether the circumstances could properly cause a reasonably well informed person to have a reasonable apprehension of a biased appraisal or judgment by the member, however unconscious or unintentional it might be.1
- Courts have also stated the following principle:
[T]he 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—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”2
- Specifically, members must ensure that all parties with an interest in a matter before the Board are provided with a reasonable opportunity to present their case. All parties dealing with the Board must be treated equally by members, and there must not be any appearance of favouritism. No one appearing before the Board should be given cause to believe that any other person or party can obtain, or has obtained, any influence with the Board or one of its members or that some other party could obtain better treatment.
- Members must ensure that their activities outside of the Board neither conflict with their roles as members nor influence their decisions in any way and must also ensure that these activities do not raise the appearance of conflict. A conflict of interest is any interest, relationship, association or activity that is incompatible with the members' obligations to the Board and to the parties. It is the responsibility of each member to consider and enquire into any circumstance that might suggest a possible conflict of interest or raise a perception of bias in respect of any of his/her responsibilities. The member may at first be the only person in a position to recognize a possible conflict or an issue of bias. As soon as a potential conflict or grounds for a perception of bias is identified, a member should discuss the matter with the Chairperson and/or Board counsel.
- The Conflict of Interest Act, enacted by the Federal Accountability Act, S.C. 2006, c. 9, came into force in July 2007. It replaces the previous Conflict of Interest and Post-Employment Code for Public Office Holders issued by the Privy Council of Canada. The Conflict of Interest Act applies to all members.
- Although Board members have an obligation to disclose possible conflicts of interest to the Chairperson, they also have separate and concurrent obligations to disclose such matters to the Conflict of Interest and Ethics Commissioner. Depending on their status, whether part-time or full-time or in receipt of an annual salary, the obligations of Board members under the Conflict of Interest Act may vary.
- The Office of the Conflict of Interest and Ethics Commissioner is established under s.81 of the Parliament of Canada Act, and the Commissioner is charged with enforcing the Conflict of Interest Act. Board members are responsible for familiarizing themselves with the contents of the Act and applicable Guidelines from the Conflict of Interest and Ethics Commissioner, and for abiding by them.
Conduct Prior to Hearing
- Before commencing a proceeding, prospective parties often contact the Board for procedural direction or advice or simply to discuss preliminary matters on the upcoming proceeding. Such contacts may take the form of an informal written or oral request for information or may take place during a pre-hearing conference. Members should avoid being placed in situations where they are asked to comment on the procedure to be followed or on the merits of any matter that may come before the Board. Members should also be careful not to receive any materials from prospective parties before proceedings have commenced. For these reasons, all outside requests for information made directly to a member are referred to the Executive Director of the Board, to the Director, Registry Operations and Policy with respect to labour relations matters, to the Director, Staffing Registry Services with respect to staffing complaints, or to Board counsel.
Conduct of Hearing
- A member shall approach every hearing with an open mind with respect to every issue and shall avoid doing or saying anything that could cause any person to think otherwise.
- A member shall listen carefully to the views and submissions of the parties and their representatives.
- A member shall show respect for the parties, representatives and witnesses, and for the hearing process itself, through his/her demeanour, timeliness, dress and conduct throughout the proceeding.
- A member must demonstrate a high degree of sensitivity to gender-related issues, cross-cultural understanding and human rights generally in the manner in which the member conducts the hearing, for example in the affirmation/swearing-in of witnesses, the scheduling and time of the hearing, and the attire of the participants, among other things. In the context of an assessment of credibility of a witness, the demeanour of the witness is one of many factors that the member may have to consider; however, if he/she does so, the member should recognize that he/she may not be familiar with cultural norms affecting the manners of the witness and should avoid drawing inappropriate inferences on the credibility of the person on that basis.
- A member must endeavour to conduct all hearings expeditiously, preventing unnecessary delays, while ensuring that all parties have a fair opportunity to present their case.
- A member must avoid undue interruption and interference in the examination and cross-examination of witnesses. It is permissible for a member to question a witness in order to clarify the evidence, but unnecessary or leading questions must be avoided. A member should not show undue impatience or a negative attitude towards a party, representative or witness.
- A member should avoid unnecessary interruptions during the submissions of a party or representative. Interruptions may be necessary to clarify a submission or to ensure the relevance of a particular argument.
- A member must attempt to ensure that parties who are unrepresented are not unduly disadvantaged at the hearing. While a member cannot act as counsel for the unrepresented party, it is appropriate to clearly explain the procedure to be followed in the hearing. In the course of the hearing, the member may, in clear and simple language, outline for the party the relevant evidentiary and procedural rules that have a bearing on the conduct of the proceeding.
- A member shall not communicate directly or indirectly with any party, witness or representative in respect of a proceeding, except in the presence of all parties and their representatives. Telephone calls to the member should be referred to the acting Executive Director and General Counsel of Federal Public Sector Labour Relations and Employment Board of the Administrative Tribunals Support Service of Canada. Correspondence to or from a party or counsel should be handled by the Director, Registry Operations and Policy, the Director, Staffing Registry Services or Board counsel and be forwarded to all parties and representatives who have not already received a copy.
- A member shall not, in the course of a hearing, have meals or other significant social interaction with a party, representative or witness unless all parties and representatives are present and there is no discussion with respect to the subject matter of the hearing.
- A member must make each decision within the framework of the law and on the basis of the evidence presented by the parties and the parties' submissions
- A member must apply the law to the evidence in good faith and to the best of his/her ability. The prospect of disapproval from any person or institution must not deter a member from making the decision that he or she believes to be correct, based on the law and the evidence.
- A member shall not ignore relevant Board (including those from the Public Service Staffing Tribunal (PSST) and the Public Service Labour Relations Board (PSLRB)), Federal Court or Supreme Court of Canada decisions on a question at issue before him or her. Where previous decisions are relevant and are not followed, the member must explain the reasons for the departure clearly and respectfully in the decision. Due weight must be given to previous Board jurisprudence (including PSST and PSLRB jurisprudence) and the need for a degree of consistency in the interpretation of the law.
- A member must endeavour to render his/her decisions promptly and in accordance with any applicable Board guidelines on the issuance of decisions.
- A member is, with the assistance of Board employees, ultimately responsible for ensuring that decisions are prepared in accordance with Board guidelines on form and language and meet Board standards with respect to quality.
- A member should use clear, concise and accessible language in his/her decisions.
- The decisions, in their tone and content, should avoid conveying the impression that the member has a personal interest or preconceived opinion in the case or issue before him/her, hence creating an apprehension of bias.
- A member shall never communicate with the media about a decision of the Board. All inquiries from the media must be referred to the Chairperson or to the Executive Director of the Board.
- A member must, through his/her conduct, endeavour to promote collegiality among members. Accordingly, a Board member should assist colleagues through the exchange of views and opinions in a spirit of respect and in a way that is sensitive to the obligation of all members to reach their decisions independently, objectively and without undue external influence. Such respect for the views and opinions of others should also be demonstrated in the member's consultations and discussions with Board employees.
- A member shall not comment publicly on a decision of a colleague or on the manner in which another member has conducted himself/herself during a hearing.
- A member shall not breach the confidentiality of Board meetings.
- Members should not accept any offer of a gift or be sponsored or provided with any entertainment expense or service. If there is any question of conflict, members should refer to the Conflict of Interest Act. In all cases, members should seek the guidance and direction of the Chairperson.
- A member shall not make public comment, orally or in writing, on any aspect of a matter before the Board. A member shall not discuss in private, outside the Board, any aspect of a matter before the Board.
- Members are encouraged to promote public understanding about the role of the Board. This may include accepting opportunities to make presentations on specific program areas or to write about the work of the Board. These activities must be approved by the Chairperson and should take place in a public forum.
- Members must be careful when appearing in public not to receive information about a matter that is or that may come before the Board or to discuss the merits of an application or other matter before the Board. They must also refrain from providing opinions as to the likelihood of an application's success, as these are matters upon which the Board must adjudicate and render a decision.
- Members must also avoid commenting publicly on, or expressing personal views about, parties and forming opinions relating to the merits of a potential or pending application.
- In addition, members should avoid publicly defending their actions, commenting on the validity of the Board's decisions or interpreting or elaborating on their reasons for a decision, as the reasons contained in the body of the decision speak for themselves.
Competence, Knowledge and Diligence
- Members are responsible for keeping abreast of trends and developments in labour and employment law so that they fully appreciate all aspects of the environment in which they work. In this regard, members are expected to maintain an ongoing review of jurisprudence, texts and periodicals. Also, members may periodically attend seminars and conferences and participate in training seminars.
1. CNG Transmission Corp. v Canada (National Energy Board),  1 F.C. 346 (T.D.), p. 360-361.
2. Committee for Justice and Liberty v. National Energy Board,  1 S.C.R. 369, De Grandpré, writing in dissent, at page 394. This test was expressly adopted by the Federal Court of Canada with respect to a member of this Board in Scheuneman v. Attorney General of Canada,  2 F.C. 365.