CUB 46055

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on October 23, 1997 in Chandler, Quebec

The claimant, Marie Mercier, and Mrs. Sabine Roy and Mr. Gaétan Clavet, who were also claimants, were represented by their counsel, Madone Minville, at the hearing in Gaspé on September 7, 1999.

In her appeal, the claimant requested that the Board of Referees' decision be rescinded and that these cases be returned to another Board because her clients had allegedly been the victims of a denial of natural justice. The chairman of the Board of Referees reportedly refused counsel's motion for adjournment on October 20, 1997, as she had been suffering from gastroenteritis (diarrhea and vomiting) and that this request to adjourn the hearing had only been served two hours prior to the Board hearing on October 23, 1997.

It must be noted at the outset that the three claimants had selected their counsel, Manon Minville, to represent them before the Board of Referees several months prior to the hearing of October 23, 1997.

They certainly did not appear before the Board at the last minute to request an adjournment to find counsel to represent them, as was the case in Pierre [1978], 2 F.C., p. 849 and particularly p. 876:

Every person shall have the right to be heard by the proper authority or court and to have a reasonable opportunity to answer to the allegations made against him. Instead of voicing his grievances personally, the person concerned can be represented in Court by counsel who shall speak on his behalf.

During any proceeding, when the person concerned, who is aware or has been informed of his right to counsel, decides to represent himself/herself, he cannot attack the procedure at some later stage on the ground that he had not been represented by counsel. That person was not denied the services of counsel, as he decided to pursue the proceeding on his own and did not avail himself of the opportunity to be represented [TRANSLATION]

In her argument, counsel indicated that the Board had not scheduled any hearings in July, August and September 1997, when she was available at that time to represent her clients.

Counsel maintained that her clients have the right to be represented by counsel under article 34 of the Quebec Charter of Human Rights and Freedoms, which reads as follows:

34. Every person has a right to be represented by an advocate or to be assisted by one before any tribunal

However, as counsel Sheri Rafai-Far pointed out, the Quebec Charter only affects those matters that come under the legislative authority of Quebec. (See article 55 of the Charter).

Meanwhile, counsel for the Commission, Sheri Rafai-Far, maintained that since federal legislation was at issue, the Quebec Charter could not apply, in line with a decision by Marin J. in Roger Riopel (CUB 29070), in which our colleague, Rouleau J. was quoted in Ha vs. Canada (T-1426-91. I agree with this principle a priori, but under certain circumstances, the refusal to recognize this right can prove most prejudicial to claimants, since the Commission's decision entailed very serious consequences for them and involved a penalty for making a false and misleading statement knowingly.

Article 10 of the Canadian Charter of Rights and Freedoms states that everyone has the right on arrest or detention [.] and to retain and instruct counsel without delay and to be informed of that right.

Of course, unlike the persons in the various decisions counsel Far submitted, these claimants had not been arrested or detained. However, they were the subject of a sentencing by the Commission, which was penal in nature, and it was very much in their interest to be well represented before the Board with respect to this appeal. That is why they had retained the services of counsel Minville. Because the chairman of the Board of Referees refused to allow the adjournment she requested due to illness, a serious reason, they were not able to be represented before the Board on October 23, 1997 by the counsel they had selected.

I understand it was the third motion for adjournment, but it was certainly justified by the circumstances which were proved in this case.

Counsel Far cited Joseph Ni-Otoo Quaye, F.C.A. (A-538-93), in which the Federal Court declared that injustice had to be proved for there to be a denial of justice.

In this case, it is obvious that a serious prejudice was done to the claimants, since the same members of the Board of Referees in five (5) identical cases heard the claimants and concluded that their versions were credible. As a result, the Board unanimously upheld the claimants' appeal in their decision of September 1, 1999 in the file.

In this case, the members of the Board merely reviewed the files at the hearing, which was not attended by the claimants and their counsel. It is reasonable to conclude that if a hearing were held before a new Board and they were represented by their counsel, they would be successful.

By refusing the adjournment under the aforementioned circumstances, the Board refused to hear the other party (audi alteram partem), which is a denial of natural justice.

For these reasons, I have no alternative but to uphold the claimant's appeal, rescind the Board's decision and order an appeal before another Board.

Consequently, on these reasons, I uphold the claimant's appeal, rescind the Board's decision of October 23, 1997 and order that this appeal be heard before a new Board as soon as possible.