On March 17, 2005. the Ontario Superior Court of Justice released its judgment in Keays v. Honda Canada Inc. (March 17, 2005, Ont. S.C.). My intention is to discuss aspects of this case over the course of a couple of posts. It should be mentioned, at the outset, that Honda has indicated that it is appealing the case to the Court of Appeal. The Globe and Mail has an article (Honda ordered to pay $500,000 for firing disabled worker) that discusses the case and advises that Honda is appealing.
If you're an employer and the Court's judgment starts with a quote like the following, you know it's going to be a bad day:
This wrongful dismissal action brings into sharp focus the tension between the expectations of the computer-programmed workplace and the obligations of human rights legislation, in particular the requirement to accommodate employee disability to the point of undue hardship. For the reasons that follow, I have found on "clear and convincing" proof that the defendant sacrificed the latter in favour of the former and, in doing so, abused a decent and dedicated worker who has the misfortune to be afflicted with what the Centre for Disease Control ("CDC") defines as the "debilitating and complex" disorder of Chronic Fatigue Syndrome ("CFS").
That's how Mr. Justice MacIssac led off in the case of Keays v. Honda Canada Inc.. Mr. Keays was 38 years old and worked for Honda at its Alliston, Ontario assembly plant for 14 years. He was one of the first people hired at the Alliston plant and worked in the production department, for a period, and then moved to the Quality Engineering Department. By all accounts he was a model employee except in the area of attendance.
Mr. Keays health situation deteriorated to such an extent that he went off work from October 1996 until December 1998. He was on short and then long term disability benefits, which were discontinued in December 1998 when the insurer received a medical evaluation (presumably, the LTD policy contained a change in the definition of "disability" after 2 years, such as "disabled from performing the duties of any occupation"). According to the judge, Mr. Keays "described this process as a "farce". No evidence has been led to contradict this position." The judge found that he was "was wrongly terminated from his LTD." and he found the assessment relied upon by the insurer to be "bogus".
Mr. Keays returned to work but began experiencing periods of absenteeism within a month of his return. He completed a medical form that would except him from the attendance program for illnesses recognized by the Ontario Human Rights Code. The judge described that " I am satisfied that [Mr. Keays] seized this opportunity [completing the form] as a drowning person grabs a piece of flotsam." The Company appears to have "required that any absences be "validated" by doctors' notes for each and every occurrence." which the judge found to be inconsistent with Mr. Keays' disability.
The judge also found that, in the course of a medical assessment, there were "threats" that Mr. Keays would be returned to the more physically demanding production area. This was strenuously denied by Honda. Nevertheless, the judge concluded that:
I am satisfied that the possibility of such removal remained a real threat in his mind given Honda's reluctance to acknowledge the validity of his disability and his need for reasonable accommodation.
With respect to the requests for doctor's notes, the Court stated that:
Mr. Keays was getting nowhere with his request to have Honda re-visit the issue of the need to obtain medical notes for each of his absences. I agree that these were not only discriminating in that they imposed a burden or barrier that was not faced by the "mainstream" employee population, they were creating longer absences than mandated by his condition. I agree as well that Mr. Keays followed the "open-door" policy suggested in the Honda employee handbook but continued to meet with insensitive "stone-walling" on the part of management.
Mr. Keays retained counsel. The Court described this and his reasons for doing so as follows:
.... The deck was stacked against him and he was only a minnow compared to the Leviathan that Honda represented. Recent headlines in the popular media present the drastic measures undertaken by frustrated employees. Mr. Keays opted for the civilized choice; he retained counsel who wrote to Honda on March 16, 2000 outlining his concerns along with an offer to work toward an appropriate resolution of their outstanding differences. I find the letter to be conciliatory in the extreme. It is far from confrontational. Honda chose to ignore it and responded with its own volley five days later, unilaterally canceling the OHRC accommodation and dictating that the plaintiff meet with Dr. Brennan because Honda no longer accepted the legitimacy of his absences.
The letter also included "the ultimatum that he meet with Dr. Brennan or be fired." When Mr. Keays asked for clarification about the purpose of the meeting, according to the judge, Honda refused saying that Mr. Keays had been repeatedly told that it was a "get to know you" session. The judge was highly critical of this as well saying that Mr. Keays should have been told that the company doctor "was of the belief that [his condition] is not a source of permanent disability as "most patients are significantly improved within three years of diagnosis". This is not consistent with the data from the CDC to which I have been permitted access." Furthermore, according to the Court, the philosophy that the "occupation-health specialist should be the "driver" on the accommodation "bus"" with the exclusion of the employee's physician was somehow wrong.
This is how things ended, as described by the Court:
The "stand-off" between the parties did not resolve and Mr. Keays was terminated formally on March 29, 2000 for insubordination in failing to meet with Dr. Brennan. According to Dr. Morris, he suffered a three or four month period of post-traumatic disorder as a result and he qualified for a total CPP disability pension for his CFS, retroactive to his termination date. That continues to the present.
Following the completion of the trial and the delivery of reasons, Honda sought a mistrial and alleged a reasonable apprehension of judicial bias, which application was dismissed.
In the end, the Court found that Mr. Keays had been wrongfully dismissed and awarded him a total of 24 months salary (including Wallace damages) and $500,000 in punitive damages. Even Mr. Keay's lawyer in the Globe and Mail article remarks that "... punitive damages are rare in employment cases, and seldom top $25,000."
Reasonable Apprehension of Bias
Let's start our discussion at the end, with Honda's allegation of a reasonable apprehension of judicial bias.
The trial ended on April 19, 2004 and Honda filed its bias motion on June 17, 2004. The motion was argued on October 26, 2004, "more than six months after the trial concluded but still while it was under "reserve" (i.e. judgment had not been rendered).
The judge dismissed Honda's application and relied upon the case of Authorson (Litigation Guardian of) v. Canada (Attorney General) (2002) 32 C.P.C. (5th) 357 where the Court held that the disqualification motion ought to be brought within a "a month of the discovery of the alleged bias or the formation of the perception of bias." This month long period allows the party bringing the application sufficient time to get outside advice, consider its position, prepare materials and "bolster their courage". In this case, Honda's application was brought 3 months after the conclusion of trial and the judge simply dismissed the application saying that:
Honda failed to abide by any of those requirements or suggestions [in Authorson (Litigation Guardian of)]. Accordingly, I found it unnecessary to address the merits of the motion which was dismissed.
With respect, I think that the Authorson (Litigation Guardian of) case establishes "suggestions" or guidelines for the bringing of judicial bias allegation. I would suggest that principles established by Authorson (Litigation Guardian of) should not be applied in a mechanical fashion in dealing with such an important and difficult issue, which goes to the very heart of the judicial process. By dismissing the application on a technical point, such as timeliness, and never considering and opining on the merits of the application, the issue is left dangling and is not finally and conclusively determined.
I do not know the details of the motion, nor when Honda first developed a view that there was a reasonable apprehension of bias. While Honda's motion was filed 3 months after the conclusion of the trial, but before judgment was delivered (while under reserve), I would have thought that a detailed discussion of the merits of the motion was warranted.
A motion of this nature, brought 3 months after the conclusion of a 29 day trial, is not ideal. The parties have been put to the cost, expense and stress of what appears on the face of the judgment, to have been a hotly contested trial.
I would have thought, though, that weighing the need for a conclusive determination on such a fundamental issue as judicial impartiality, following a full and complete consideration of the merits, and the prejudice occasioned by delay and costs, I would err on the side of the conclusive determination. The circle must be closed on this issue and there should not be any unanswered questions.
There is insufficient information available to decide if the motion would succeed on the merits and, at this point, we'll never know. However, by not dealing with the merits, the loop is not closed. Justice must not only be done, it must be seen to be done, is an old adage that applies here. I would view the trial judges dismissal of Honda's motion on a timeliness basis as being something that the Court of Appeal will have to deal with
What is a Reasonable Apprehension of Bias?
The Supreme Court of Canada has considered this issue in a number of cases.The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board,  1 S.C.R. 369 where de Grandpré J. (writing for the minority, though his views were subsequently adopted by the Supreme Court in other cases) stated that:
. . . 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.... [T]hat 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."
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
So would a "reasonable and right minded person informed of all the circumstances, viewing the matter realistically and practically, and having thought the matter through" consider that a reasonable apprehension of bias exists?
More recent Supreme Court cases to adopt this test are Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)  1 S.C.R. 623 and R. v. R.D.S. , 3 S.C.R. 484.
The issue of "reasonable apprehension of bias" was recently raised in the arbitral context in the decision of Hamilton Health Sciences (November 8, 2004). The arbitrator, in that case, ultimately dismissed the application, but only after conducting an extensive review of the allegations and delivering detailed reasons. Interestingly, in this case, the first day of hearing took place on March 30, 2004 at which time a number of preliminary issues were raised. The arbitrator made oral rulings on these preliminary matters and rendered a written decision, confirming those oral rulings, on June 14, 2004. On June 18, 2004, the employer sought the recusal of the arbitrator because of a reasonable apprehension of bias. Interestingly, this was nearly 3 months after the first day of hearing at which the issues giving rise to the reasonable apprehension of bias arose.
Again, the arbitrator heard submissions and wrote detailed reasons dismissing the employer's motion.
I'll have more to say about this case, including the $500,000 punitive damages award in future posts.