BALRAJ SHOAN Applicant v. ATTORNEY, 2017 FC 426

Date: 20170428 Docket: T-1053-16 Citation: 2017 FC 426 Ottawa, Ontario, April 28, 2017 PRESENT: The Honourable Madam Justice Strickland BETWEEN: BALRAJ SHOAN Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS Table of Contents SECTIONS PAGE Background . 2 Decision Under Review .. 6 Issues . 7 Preliminary Issue: Should portions of the Applicant’s affidavit be struck out? . 7 Respondent’s Position . 7 Applicant’s Position . 9 Analysis . 10 Issue 1: What is the appropriate standard of review? . 17 Issue 2: Did the GIC violate the duty of procedural fairness owed to the Applicant? . 19 Applicant’s Position . 19 Respondent’s Position . 22 Analysis . 26

(1) Content of the duty of fairness . 26

(2) Application of the content of the duty of fairness . 46 (

a) Notice . 46 (

b) Opportunity to be heard . 56 (

c) Fair and impartial decision . 61 Issue 3: Was the GIC’s decision to terminate the Applicant’s appointment unreasonable? . 70 Issue 4: Remedy . 78 Costs . 81 [ 1 ] This is an application for judicial review of the decision of the Governor-in-Council (“GIC”) dated June 23, 2016, terminating the appointment of the Applicant, Balraj Shoan, as a Commissioner of the Canadian Radio-television and Telecommunications Commission (“CRTC”), for cause, by way of Order-in-Council PC 2016-651 (“decision”). This application is brought pursuant to ss 18, 18.1 and 18.2 of the Federal Courts Act , RSC 1985, c F-7.

Background [ 2 ] On July 3, 2013 the Applicant was, pursuant to s 3(1) of the Canadian Radio-television and Telecommunications Commission Act , RSC 1985, c C-22 (“ CRTC Act ”), appointed as a Commissioner of the CRTC by Order-in-Council of the GIC, PC

2013-080 as amended by PC 2013-0838. His appointment was to hold office during good behaviour for a five year term. [ 3 ] The Applicant’s relationship with the CRTC was a difficult one, as demonstrated by the record before me. In September 2014 a complaint of harassment was laid against the Applicant by the CRTC’s Executive Director, Communications and External Relations.

Pursuant to the CRTC Guidelines on Formal Harassment Conflict Resolution Mechanisms, the Secretary General of the CRTC was responsible for dealing with the complaint and, ultimately, referred the complaint to a third party for an investigation, Laurin & Associates (“Harassment Investigator”). The Harassment Investigator prepared a report which concluded that the complaint had merit (“Harassment Report”). The Secretary General recommended that the Chairperson of the CRTC accept the Harassment Report and implement the measures it recommended. By letter of April 7, 2015 the Chairperson did so.

On April 28, 2015, the Applicant filed an application for judicial review of that decision with this Court. [ 4 ] On October 22, 2015 the Applicant also brought an application for judicial review in the Federal Court of Appeal challenging three decisions of the Chairperson of the CRTC alleging that the Chairperson did not have the authority to establish panels of CRTC Commissioners to hear matters before it. [ 5 ] Various other concerns arose such as the use of social media by the Applicant in a way that the Minister of Canadian Heritage and Official Languages (“Minister”) viewed as highly critical of the CRTC, as she advised the Applicant by letter of May 1, 2015. [ 6 ] This culminated with a letter from the Minister dated February 26, 2016 (“Minister’s Letter”).

The letter advised the Applicant that the Minister was writing to express her concerns about the Applicant’s capacity to serve as a Commissioner of the CRTC as matters had been brought to her attention that suggested that the Applicant had not carried out his duties ethically and responsibly and that his conduct had impaired the capacity of the CRTC to carry out its functions and the confidence of the public and stakeholders in its capacity to do so.

The Minister stated that she was writing to share her concerns, to inform the Applicant of the information upon which her concerns were based, and to allow the Applicant an opportunity to provide the Minister with any submissions the Applicant believed should be considered by the Minister before she took any further action. The Minister stated that the Applicant should know that she was considering whether to recommend to the GIC that the Applicant’s appointment as a Commissioner be terminated.

The letter went on to specify four categories of concern and attached a seven page document entitled “Expected Standard of Conduct &

Summary of Concerns” (“Summary”) which appended and referenced approximately 1200 pages of documentation.

The Minister asked that the Applicant provide, by March 14, 2016, any written representations that he believed should be taken into account before a decision was made regarding his continued role as a Commissioner of the CRTC and that any such submission would be carefully considered before the Minister decided whether or not to make any recommendation to the GIC. [ 7 ] On March 14, 2016 the Applicant, through his counsel, submitted his response in which he addressed the Minister’s concerns (“Applicant’s Response” or “Response”). [ 8 ] Ultimately, the Minister recommended that the Applicant’s appointment be terminated and, as noted above, the GIC terminated his appointment by Order-in-Council dated June 23, 2016. [ 9 ] Subsequently, on September 2, 2016 Justice Zinn of this Court concluded that the investigation of the Harassment Investigator had exceeded the scope of its mandate and had been conducted with a closed mind ( Shoan v Canada (Attorney General) , 2016 FC 1003 ).

In the result, as the process leading to the decision of the Chairperson had been conducted in a manner that denied the Applicant procedural fairness and natural justice, the application for judicial review was granted and the Chairperson’s decision to accept the Harassment Report and effect the measures it had recommended was set aside. However, Justice Zinn declined to order that the matter be referred back to be re-determined by another person as such an order would have no value given that the GIC had rescinded the Applicant’s appointment.

The Applicant was awarded his costs. [ 10 ] On September 9, 2016 Justice Mactavish declined to grant a motion brought by the Applicant seeking to stay the decision of the GIC, and to reinstate him in his position as a Commissioner of the CRTC, pending determination of his application for judicial review of the GIC’s decision to terminate his appointment ( Shoan v Canada (Attorney General) , 2016 FC 1031 ). [ 11 ] On October 24, 2016 the Federal Court of Appeal in an oral judgment dismissed the Applicant’s application for judicial review of the challenged three decisions of the Chairperson of the CRTC.

The Federal Court of Appeal held that the Chairperson was fully authorized to establish the panels at issue. Subsection 6(2) of the CRTC Act stated that the Chairperson was the chief executive officer of the CRTC, had supervision over and direction of the work and staff of the CRTC and would preside at CRTC meetings. Implicit in such power was the authority to assign cases and members to cases as explicitly recognized in the by-laws of the CRTC.

The Federal Court of Appeal found that the application was sufficiently lacking in merit to warrant an increased award of costs against the Applicant ( Shoan v Canada (Attorney General) , 2016 FCA 261 (“ Shoan FCA ”)).

Decision Under Review [ 12 ] The GIC’s decision to terminate the Applicant’s appointment as a Commissioner of the CRTC states as follows: Whereas by Order in Council P.C. 2013-809 of June 13, 2013 as amended by Order in Council P.C. 2013-838 of June 21, 2013, Raj Shoan was appointed as a full-time member of the Canadian Radio-television and Telecommunications Commission (CRTC) for the Ontario region, to hold office during good behaviour for a term of five years, effective July 3, 2013; Whereas on February 26, 2016, the Minister of Canadian Heritage wrote to Raj Shoan informing him that certain of his actions brought to her attention called into question his capacity to continue serving as a Commissioner of the CRTC, providing him with information regarding these concerns including the documentation upon which they were based, and inviting him to make any representations that he wished to have taken into account before any decision was made on whether to terminate his appointment for cause;

Whereas the Governor in Council has carefully considered the February 26, 2016 correspondence sent by the Minister, as well as the material communicated to Raj Shoan with that correspondence, and the submissions made by Raj Shoan on March 14, 2016, as well as the material enclosed with that submission; And whereas the Governor in Council has concluded that Raj Shoan’s actions are fundamentally incompatible with his position and that he no longer enjoys the confidence of the Governor in Council to be a Commissioner of the CRTC; Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister for the purposes of the Canadian Radio-television and Telecommunications Commission Act , pursuant to subsection 3(2) of the Canadian Radio-television and Telecommunications Commission Act , terminates for cause the appointment of Raj Shoan as a full-time member of the CRTC for the Ontario Region, effective June 24, 2016.

Issues [ 13 ] The parties submit and I agree that this application for judicial review raises the following four issues: 1. What is the appropriate standard of review? 2. Did the GIC violate the duty of procedural fairness owed to the Applicant? 3. Was the GIC’s decision to terminate the Applicant’s appointment unreasonable? 4. What is the appropriate remedy? [ 14 ] In addition, there is a preliminary issue to be addressed.

This arises from a motion filed by the Respondent on January 20, 2017 seeking to have certain paragraphs of and exhibits to the Affidavit of the Applicant, sworn on July 4, 2016 and filed in support of this application for judicial review (“Shoan Affidavit”) struck out together with certain related paragraphs of the Applicant’s Memorandum of Fact and Law. I heard that motion immediately prior to and on the same date of this application for judicial review. Preliminary Issue: Should portions of the Applicant’s affidavit be struck out?

Respondent’s Position [ 15 ] As to the timing of the motion, the Respondent submits that applications for judicial review are intended to proceed as expeditious and

summary proceedings. Therefore, motions to strike out affidavit evidence are expected to be brought before the judge hearing the application on its merits, to avoid unnecessary delay, rather than earlier in the proceedings by way of an interlocutory motion ( Canada (Attorney General) v Quadrini , 2010 FCA 47 at para 18 (“ Quadrini ”); Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 at para 11 (“ Assn of Universities and Colleges ”)). [ 16 ] The Respondent submits that it objects to the admissibility of portions of the Shoan Affidavit on three grounds:

i) it contains inadmissible opinion and argument; ii) it contains the Applicant’s gloss and explanation of the material that was before the GIC when it rendered its decision; and, iii) it contains evidence that was not before the GIC when it made its decision. [ 17 ] Evidence for use in an application for judicial review is restricted to the record that was before the decision-maker, in this case the GIC, because of the differing roles of the decision-maker and the Court.

While there is an exception to this general rule with respect to the admissibility of evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that was not before the decision-maker, this is only the case if the evidence could not have been put before the decision-maker. Further, an affidavit for use in an application for judicial review must be confined to the facts within the affiant’s personal knowledge. Opinion, argument or legal conclusions are not facts and are not admissible. Facts must be presented without gloss or explanation.

Commenting on the evidence in the record before the decision-maker in order to provide the reviewing court with the affiant’s assessment of the evidence is inadmissible argument ( Federal Courts Rules , SOR/98-106, s 81(1) (“Rules”); Quadrini at para 18 ; Duyvenbode v Canada (Attorney General) , 2009 FCA 120 at para 2 (“ Duyvenbode ”); Canadian Tire Corporation v Canadian Bicycle Manufacturers Association , 2006 FCA 56 at paras 11-12 (“ Canadian Tire Corp ”)). [ 18 ] And, while an affidavit may contain non-argumentative orienting statements, such evidence is admissible only for the narrow purpose of providing background information for the reviewing court and may not engage in spin or advocacy ( Delios v Canada (Attorney General) , 2015 FCA 117 at para 45 (“ Delios ”)).

The Respondent then identified each of the paragraphs in the Shoan Affidavit that it objected to as inadmissible and explained the basis for each objection. It also identified the corresponding inadmissible portions of the Applicant’s written submissions. Applicant’s Position [ 19 ] The Applicant acknowledges that as a general rule the evidentiary record before the reviewing court on judicial review is restricted to the evidentiary record that was before the administrative decision-maker, the GIC in this case.

However, the Applicant submits that there are recognized exceptions to this rule ( Assn of Universities and Colleges ). Further, that motions to strike on the issue of relevance should not be routinely brought, but rather only where the evidence is obviously irrelevant, is prejudicial and goes to a controversial issue ( Mayne Pharma (Canada) Inc v Aventis Pharma Inc , 2005 FCA 50 (“ Mayne ”)). The Applicant submits that to strike

irrelevant allegations, the Court must find the allegations to be abusive or it must be convinced that its admissibility would be betterresolved at an earlier stage than at the hearing of the application (Quadrini at para 18).

The discretion to strike portions of an affidavitshould be exercised sparingly and only when it would be in the interests of justice to do so (Armstrong v Canada (Attorney General),2005 FC 1013 , [2005] FCJ No 1270 (FC) at para 40). [20] The Applicant submits that the motion to strike could have been brought at an earlier stage, rather than five months afterconfirmation that the Shoan Affidavit would be relied upon and two months after the Applicant’s Memorandum of Fact and Law wasserved.

It would be unjust to permit the motion at this stage in the proceedings. [21] The Applicant also submits that the impugned portions of the Shoan Affidavit contain important background informationabout the main issues of the judicial review which is necessary to a contextual evaluation of the reasonableness of the GIC’s decision. Further, that they are relevant as they relate to issues concerning the procedural fairness and reasonableness of the GIC’s decision.

Inparticular, that the Minister had a closed mind, was dismissive of the Applicant’s explanations of events as well as issues he raised as tothe conduct of others. The Applicant submits that the Respondent has not established that the impugned affidavit evidence is irrelevant,prejudicial or controversial. Additionally, in principle, s 221 of the Rules does not apply in the context of an application for judicialreview in order to strike out a pleading and it is only if it is deemed necessary that a judge may strike out parts of a memorandum of factand law, which has not been established.

The Respondent also responds to each of the impugned paragraphs. Analysis [22] As to the timing of the motion to strike portions of the Shoan Affidavit, I do not agree with the Applicant that the motionshould have been brought earlier or that it would be unjust to permit the motion at this stage. [23] In Assn of Universities and Colleges the applicant submitted that the issue of the admissibility of an affidavit should bedetermined by the panel hearing the application and not by way of advance ruling.

Justice Stratas of the Federal Court of Appeal stated: [11] Whether the Court should provide an advance ruling is a matter of discretion. This discretion is constrained by the instruction insubsection 18.4(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, that applications for judicial review be “heard and determined withoutdelay and in a

summary way.” As a result, the Court will only exercise its discretion to provide an advance admissibility rulingwhere it is clearly warranted.

Those embarking upon an interlocutory foray to this Court to seek such a ruling will not often finda welcome mat when they arrive. [emphasis added] (Also see Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 9-11 (“Bernard”) and Mayne at para 16). [24] In this matter the Applicant did not oppose the Respondent’s request that the motion to strike portions of the Shoan Affidavitbe set down to be heard on the same date as the hearing of the application for judicial review.

And, when appearing before me, theApplicant did not seek to have the motion dealt with and the application for judicial review then adjourned until a decision on the motionhad been rendered. Accordingly, as neither party sought an advance ruling there is, in my view, no issue arising from the timing of themotion which would, in the normal course, be heard by the applications judge (Mayne at para 16).

Indeed, prior to the hearing of theApplicant’s application for judicial review challenging the authority of the Chairperson to appoint panels, the Federal Court of Appealrefused a motion brought by the Respondent seeking to strike portions of the supporting affidavit of the Applicant, in part, on the basisthat the Minister had attempted to seek an advance ruling (Shoan v Canada (Attorney General), February 18, 2016, Docket A-464-15(FCA)). [25] I would also note that the Applicant has not indicated why it would be unjust or prejudicial to permit the motion at this stagenor is a potential injustice apparent to me.

In my view, it was appropriate for the Respondent, in the context of this application forjudicial review, to have brought the motion at a time when it could be decided by the judge presiding over the hearing itself. [26] As to the content of the Shoan Affidavit, in Assn of Universities and Colleges Justice Stratas of the Federal Court of Appealpointed out that in determining the admissibility of an affidavit in support of an application for judicial review the differing roles playedby the Court and the administrative decision-maker must be kept in mind.

Parliament gave the administrative decision-maker, and notthe Court, jurisdiction to determine certain matters on their merits. Because of this demarcation of roles, the Court cannot allow itself tobecome a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before a reviewingCourt on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before thedecision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible.

Justice Stratas listed threesuch exceptions and noted that the list may not be closed.

The exceptions are an affidavit that provides: general background incircumstances where that information might assist the Court in understanding the issues relevant to the judicial review; brings to theattention of the judicial review Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review Court can fulfil its role of reviewing for procedural unfairness; and, highlighting the complete absenceof evidence before the administrative decision-maker when it made a particular finding (at paras 19-20). [27] Justice Statas revisited the general rule in Bernard, referencing the Federal Court of Appeal’s prior decisions in Assn ofUniversities and Colleges, Connolly v Canada (Attorney General), 2014 FCA 294 and Delios, and elaborated on the three recognizedexceptions: [23] The background information exception exists because it is entirely consistent with the rationale behind the general rule andadministrative law values more generally.

The background information exception respects the differing roles of the administrativedecision-maker and the reviewing court, the roles of merits-decider and reviewer, respectively, and in so doing respects the separation ofpowers. The background information placed in the affidavit is not new information going to the merits. Rather, it is just a

summary ofthe evidence relevant to the merits that was before the merits-decider, the administrative decision-maker. In no way is the reviewingcourt encouraged to invade the administrative decision-maker’s role as merits-decider, a role given to it by Parliament. Further, the

background information exception assists this Court’s task of reviewing the administrative decision (i.e., this Court’s task of applyingrule of law standards) by identifying, summarizing and highlighting the evidence most relevant to that task. [24] The second recognized exception is really just a particular species of the first. Sometimes a party will file an affidavit disclosingthe complete absence of evidence on a certain subject-matter.

In other words, the affidavit tells the reviewing court not what is in therecord-which is the first exception-but rather what cannot be found in the record: see Keeprite Workers’ Independent Union v. KeepriteProducts Ltd. (1980), (ON CA), 29 O.R. (2d) 513 (C.A.) and Access Copyright, above at paragraph 20. This can beuseful where the party alleges that an administrative decision is unreasonable because it rests upon a key finding of fact unsupported byany evidence at all.

This too is entirely consistent with the rationale behind the general rule and administrative law values moregenerally, for the reasons discussed in the preceding paragraph. [25] The third recognized exception concerns evidence relevant to an issue of natural justice, procedural fairness, improper purpose orfraud that could not have been placed before the administrative decision-maker and that does not interfere with the role of theadministrative decision-maker as merits-decider: see Keeprite and Access Copyright, both above; see also Mr. Shredding WasteManagement Ltd. v.

New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69, 274 N.B.R. (2d) 340 (improperpurpose); St. John’s Transportation Commission v. Amalgamated Transit Union, Local 1662 (1998), (NL SC), 161Nfld. & P.E.I.R. 199 (fraud). To illustrate this exception, suppose that after an administrative decision was made and the decision-makerhas become functus a party discovers that the decision was prompted by a bribe. Also suppose that the party introduces into its notice ofapplication the ground of the failure of natural justice resulting from the bribe.

The evidence of the bribe is admissible by way of anaffidavit filed with the reviewing court. [26] I note parenthetically that if the evidence of natural justice, procedural fairness, improper purpose or fraud were available at thetime of the administrative proceedings, the aggrieved party would have to object and adduce the evidence supporting the objection beforethe administrative decision-maker. Where the party could reasonably be taken to have had the capacity to object before theadministrative decision-maker and does not do so, the objection cannot be made later on judicial review: Zündel v.

Canada (HumanRights Commission), (2000), (FCA), 195 D.L.R. (4th) 399; 264 N.R. 174; In re Human Rights Tribunal and AtomicEnergy of Canada Limited, (FCA), [1986] 1 F.C. 103 (C.A.). [27] The third recognized exception is entirely consistent with the rationale behind the general rule and administrative law valuesmore generally. The evidence in issue could not have been raised before the merits-decider and so in no way does it interfere with therole of the administrative decision-maker as merits-decider.

It also facilitates this court’s ability to review the administrative decision-maker on a permissible ground of review (i.e., this Court’s task of applying rule of law standards). [28] The list of exceptions is not closed. In some cases, reviewing courts have received affidavit evidence that facilitates theirreviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider: Hartwig v. Saskatchewan(Commissioner of Inquiry), 2007 SKCA 74, 284 D.L.R. (4th) 268 at paragraph 24.

For example, in one case the applicant wished tosubmit that the administrative decision-maker’s decision was unreasonable because it wrongly construed certain submissions made bycounsel as admissions. But counsel’s submissions to the administrative decision-maker were not in the record filed with reviewing court.The reviewing court admitted evidence of counsel’s submissions so that it could assess whether the decision was unreasonable: OntarioShores Centre for Mental Health v. O.P.S.E.U., 2011 ONSC 358.

In another case, a reviewing court admitted a partial transcript ofproceedings before an administrative decision-maker. The transcript was prepared by one of the parties, not by the administrativedecision-maker. In the circumstances, the reviewing court was satisfied that the partial transcript was reliable, did not work unfairness orprejudice, and was necessary to allow it to review the administrative decision: SELI Canada Inc. v.

Construction and SpecializedWorkers’ Union, Local 1611, 2011 BCCA 353, 336 D.L.R. (4th) 577. [28] In Delios, Justice Stratas stated, with respect to the general background exception: [44] Under this exception, a party can file an affidavit providing “general background in circumstances where that information mightassist [the review court to understand] the issues relevant to the judicial review”: Access Copyright, above at paragraph 20(a). [45] The “general background” exception applies to non-argumentative orienting statements that assist the reviewing court inunderstanding the history and nature of the case that was before the administrative decision-maker.

In judicial reviews of complexadministrative decisions where there is procedural and factual complexity and a record comprised of hundreds or thousands ofdocuments, reviewing courts find it useful to receive an affidavit that briefly reviews in a neutral and uncontroversial way the proceduresthat took place below and the categories of evidence that the parties placed before the administrator.

As long as the affidavit does notengage in spin or advocacy - that is the role of the memorandum of fact and law - it is admissible as an exception to the general rule. [46] But “[c]are must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matterdecided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider”: Access Copyright, aboveat paragraph 20(a). [29] Justice Stratas went on to state that, even though the Court below in that matter had considered evidence in an affidavit to befamiliar to the parties, accurate, disclosed in a timely way and not prejudicial, that this did not make the evidence admissible (at para51).

The test for admissibility of background information exception is as set out in paragraphs 44 to 46 of his reasons. [30] The Federal Court of Appeal has also held that an affidavit must be premised upon personal knowledge and that its purpose isto adduce facts relevant to the dispute without gloss or explanation. The purpose of an affidavit is not to be confused with the writtensubmissions a party is entitled to make in support of their application (Duyvenbode at paras 2-3).

Affidavits must be free fromargumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw negative conclusions(Canadian Tire Corp at paras 9-10; also see Quadrini at para 18). [31] In Appendix A of these reasons I have set out the specifics of the challenged paragraphs, portions of paragraphs and theexhibits of the Shoan Affidavit which, having regard to the principles above, I have concluded must be struck out and the reasons forthis.

[32] It is sufficient to say here that the 82 paragraph Shoan Affidavit is not typical of an affidavit submitted in support of anapplication for judicial review in order to provide the factual backdrop of events occurring prior to the hearing of the application oruseful background information to assist the Court in its understanding of the matter. Such affidavits could, for example, provide a non-controversial description of a complicated regulatory regime in order to position the matter before the Court within that regime and toassist the Court’s understanding of its application.

The Shoan Affidavit, while containing some relevant background facts, is muchcloser in form to a memorandum of argument. Many of the paragraphs contain opinion and argument, the contents of which go farbeyond factual background information. Some of the impugned paragraphs also contain information that was not before the decision-maker, the GIC, and are not admissible on that basis. Issue 1: What is the appropriate standard of review? [33] The Applicant submits that questions of procedural fairness are not subject to a standard of review analysis and deference.

Rather, the Court is to determine the level of fairness required and then, based on that, determine whether a procedure was fair or not(Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 at para 74; Canada (Citizenship and Immigration) v Grandmont,2009 FC 1211 at para 13; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at paras 102-103; Jogiat v Canada (Citizenship andImmigration), 2009 FC 815 at para 36).

The Applicant submits that the standard of review that applies to the GIC’s finding of cause fordismissal in light of the good behaviour standard is that of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 (“Dunsmuir”);Wedge v Canada (Attorney General), (FC), [1997] FCJ No 872 (FCTD) (“Wedge”)). [34] The Respondent submits that the standard of review on questions of procedural fairness is correctness and adds that the natureand extent of the duty of procedural fairness is eminently variable and its content is to be decided in the specific context of each case(Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 21 (“Baker”); Re Soundv Fitness Industry Council of Canada, 2014 FCA 48 at para 42 (“Re Sound”)).

The Respondent agrees that the reasonableness standardapplies to the substantive review of the GIC’s decision. In that regard, the question to be addressed is whether the decision fell within arange of possible, acceptable outcomes which were defensible in respect of the facts and the law.

As Parliament has not constrained theGIC’s discretion by setting out a precise definition of the requirement that a member of the CRTC hold office during “good behaviour”,this points to a broader range of possible, acceptable outcomes at the GIC’s disposal in addressing whether the Applicant’s appointmentshould have been terminated for cause (Canada (Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha, 2014FCA 56 at paras 88-91). [35] I agree with the Respondent that issues of procedural fairness are reviewed on the correctness standard (Mission Institute vKhela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Re Sound at paras 34, 35 and39).

The concept of procedural fairness is variable and its content is to be determined in the specific context of each case andconsidering all of its circumstances (Baker at paras 21-22). I also agree with both parties that the standard of review of the GIC’sdecision to terminate the Applicant for cause is reasonableness.

This was a discretionary decision reached by the GIC in exercising apower that is delegated to it by Parliament (Wedge at para 29; Weatherill v Canada (Attorney General), (FC), [1998]FCJ No 58 (FCTD) at paras 26-28 (“Weatherill 1998”); Dunsmuir at paras 51 and 53; Vennat v Canada (Attorney General), 2006 FC1008 at para 80 (“Vennat”); also see Canada (Attorney General) v Pelletier, 2008 FCA 1 at paras 48 and 55 (“Pelletier 2008”) andProphet River First Nation v Canada (Attorney General), 2017 FCA 15 at para 30 (“Prophet River”)).

A discretionary decision madeby the GIC will be afforded a high degree of deference (Prophet River First Nation v Canada (Attorney General), 2015 FC 1030 at paras46-48, aff’d in Prophet River as above; Peace Valley Land River Association v Canada (Attorney General), 2015 FC 1027 at paras 31and 68 (“Peace Valley”)). Issue 2: Did the GIC violate the duty of procedural fairnessowed to the Applicant?

Applicant’s Position [36] The Applicant submits that the process undertaken by the Minister and the GIC’s decision to terminate his appointment asCommissioner violated the rules of procedural fairness that apply to protect the independence of good behaviour appointees to quasi-judicial bodies. [37] The Applicant notes that the rules of natural justice and procedural fairness extend to all administrative bodies acting understatutory authority (Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at para 14 (“Cardinal”); Baker atpara 20; Knight v Indian Head School Division No 19 (Saskatchewan Board of Education), (SCC), [1990] 1 SCR 653at 669 (“Knight”); Kane v Board of Governors of the University of British Columbia, (SCC), [1980] 1 SCR 1105 at 1113(“Kane”)).

The nature and extent of the duty is eminently variable and its content is to be decided in the specific context of each case(Baker at para 21).

And, procedural fairness is required to ensure that public power is not exercised capriciously regardless of whetherthe appointment is “at pleasure” or “during good behaviour”, although the scope of procedural fairness owed is not identical (Dunsmuirat paras 115-116). [38] The Applicant relies heavily on this Court’s decision in Vennat, including for the proposition that individuals appointedduring good behaviour deserve greater procedural protections than individuals appointed at pleasure (also see Keen v Canada, 2009 FC353 at paras 46-48 (“Keen”)), the latter having been described as an intrinsically precarious appointment (Pelletier 2008 at para 33; Keenat para 48), that the GIC had an obligation to provide a real opportunity to respond, and that it was the responsibility of the GIC, not theApplicant, to provide sufficient procedural safeguards (Vennat at paras 80, 105 and 186).

As well, a high degree of good faith is owed toGIC appointees prior to their sanctioning, including a requirement to be honest, reasonable, candid and forthright (Potter v NewBrunswick Legal Aid Services Commission, 2015 SCC 10 at paras 86-96 (“Potter”)).

[ 39 ] The Applicant submits that the duty of fairness in this case required that he be afforded an individualized inquiry, that the Minister and GIC were required to act fairly and transparently and that he be provided with clear reasons or analysis for the GIC’s decision. [ 40 ] In that regard, the Applicant submits that the GIC erred as it failed to engage in an individualized inquiry into the allegations against him.

This is an inquiry with some degree of autonomy in researching information that contemplates the person facing removal from office and which must shed light on the specific conduct of the affected individual ( Vennat at paras 165-166, 169, 178-179 ). The decisions in Wedge and Weatherill v Canada , [1999] FCJ No 787 (FCTD) (“ Weatherill 1999 ”) also support this view as does Keen (at paras 54-57 ).

Further, no inquiry was held under s 69 of the Judges Act , RSC 1985, c J-1 (“ Judges Act ”) in this case. [ 41 ] The Applicant submits that he was provided with only notice that the Minister was considering making a recommendation of termination to the GIC and an opportunity to make only initial submissions. No further dialogue or independent inquiry was engaged and he was not provided with adequate information about the exact grounds upon which it was believed that he lacked good behaviour.

Further, that many of the concerns raised were “stale dated” as they referred to alleged events that pre-dated the current Minister’s appointment and were deemed by the previous Minister to be insufficient to warrant any action. [ 42 ] The Applicant also takes issue with the timing of the GIC’s decision. Specifically, that a meaningful inquiry was not possible until the related judicial reviews were concluded. Although he had requested that the Minister’s process not proceed until those matters were concluded, his request in this regard, as well as his request for procedural safeguards, were ignored.

The Applicant submits that the judicial review pertaining to the harassment complaint was at the core of the GIC’s decision and the Chairperson’s decision in that regard was quashed shortly after the GIC rendered its decision. Further, the GIC’s decision was a collateral attack on the judicial review proceeding before Justice Zinn.

The GIC’s hasty decision operated as a de facto extension of the “witch hunt” conducted against him. [ 43 ] With respect to transparency and fair play, the Applicant submits that the Minister and GIC were required to meet a high standard of justice and to observe transparency and fair play but failed to do so ( Vennat at para 221 ). In that regard, his requests for safeguards and to meet with the Minister were ignored, he was provided with merely a

summary of the allegations against him and no indication as to the extent, or whether his response was considered and he was not provided with any clear reasons as to the basis of the GIC’s decision to terminate his appointment for cause. The Order-in-Council referred only to conduct fundamentally incompatible with his position, a standard not defined in the CRTC Act or any applicable legislation. As such, the Applicant is left without any real understanding as to the basis for his termination.

Respondent’s Position [ 44 ] The Respondent submits that the process undertaken by the GIC satisfied the duty of fairness that was owed to the Applicant. [ 45 ] As to the content of the duty of procedural fairness owed, the Respondent submits that the Applicant, as a GIC appointee, was entitled to notice and an opportunity to be heard ( Wedge at para 22 ; Canada (Attorney General) v Pelletier , 2007 FCA 6 at para 49 (“ Pelletier 2007 ”); Pelletier v Canada (Attorney General) , 2005 FC 1545 at para 87 , aff’d in Pelletier 2007 as above (“ Pelletier 2005 ”); Pelletier 2008 at para 43; Keen at para 57 ).

In reviewing the process followed by the GIC in past termination cases, this Court has recognized that the GIC has significant leeway in determining what means will achieve the procedural fairness objective ( Vennat at para 148 ) and is not required to follow complex, costly procedures that are incompatible with its nature ( Pelletier 2005 at para 86). Termination cases are not adjudicative processes to which full, formal, court-like procedures apply ( Wedge at para 24 ).

The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations ( Baker at para 33 ; Pelletier 2007 at para 36) which must be kept in mind when reviewing prior jurisprudence concerning the termination of GIC appointees. [ 46 ] As to the right to notice, the Minister advised the Applicant in writing that his office was in jeopardy and the reasons why this was so. The Applicant was given notice of the specific allegations of misconduct asserted against him and was provided a

summary of the Minister’s concerns, organized into four categories and referring to specific incidents within each category, as well as supporting documentation. There was no real factual dispute as to what happened and the material provided was all material of which the Applicant was aware. The information and documentation provided the Applicant with notice of the case that he had to meet. [ 47 ] The Respondent submits that the Applicant was also given a meaningful opportunity to respond and be heard. He was represented by legal counsel and provided his comprehensive response in writing.

He had the opportunity to, and did respond by putting forward his version of events, pointing out what he felt were inadequacies or deficiencies in the evidence and submitting his own evidence to correct or supplement the record, giving explanations for his actions and making submissions as to how the decision-maker should interpret his conduct. The Applicant accepted the process that the Minister set out in her letter and his counsel made no complaint that he was being deprived of a meaningful opportunity to be heard.

He did not assert that he was not given sufficient time to respond nor did he ask for more time. He did not assert that he could not adequately respond without having additional disclosure and at no point did he advise the Minister that he wanted to make additional submissions or that his response was incomplete. [ 48 ] The Minister followed the process that she set out in her letter and was transparent in that regard. The GIC provided the Applicant with a fair hearing as it considered those allegations which were disclosed to him and to which he was given an opportunity to respond.

There is also no basis for the Applicant’s suggestion that he was provided with merely a

summary of allegations nor that there was no indication as to what extent, or whether, his response was considered. The GIC stated in the Order-in-Council that it carefully considered his evidence and submissions before coming to a decision and the validity of such a recital is not open to question ( Keen at para 55 ; also see Peace Valley at para 63 ). [ 49 ] The Respondent also submits that procedural fairness did not require face-to-face meetings between the Minister and the Applicant. Unlike Weatherill 1999 , where several meetings were necessary in order for Mr.

Weatherill to seek disclosure of additional documents and information and so that he could understand the allegations against him and adequately reply, in this matter the Minister took the approach of first collecting the supporting documentation available to her and articulating her concerns in an organized way before commencing the proceedings, thereby negating the need for multiple back-and-forth communications. Here, the Applicant has

also not shown that this is a complex case where an oral hearing would be necessary to ensure that he had a meaningful opportunity to be heard. This was not a case where the decision-maker could not fully appreciate the facts or the Applicant’s responding written submissions without oral submissions and, as such, it was reasonable for the Minister to exercise her discretion not to meet with the Applicant. Vennat is distinguishable on the basis that it involved an extraordinarily complex dispute. [ 50 ] The Respondent submits that Vennat is also distinguishable in other respects.

There the unfairness in the process stemmed from the fact that the GIC had relied on the findings of a process that was not personal to Mr. Vennat. Specifically, the GIC had relied on findings of a process in which Mr. Vennat’s conduct was not the focus, being a civil proceeding in which he was merely a witness. As such, he had no right to call evidence in response, to make legal submissions or to appeal. The process in this case was personalized to the Applicant.

The concerns set out in the Minister’s Letter were about the Applicant’s conduct, the articulation of those concerns and the supporting documentation were prepared specifically for a process aimed at deciding whether he should be removed from office and was not collateral to some other process. Nor was the timing or length of the decision-making process unfair. [ 51 ] The Respondent also submits that there is no merit to the Applicant’s position that any of the Minister’s allegations were stale-dated or that the GIC made a hasty decision. The Minister explained in her letter that the concerns were cumulative.

While the incidents of misconduct began during the tenure of the prior Minister, they continued until the recurring inappropriate behaviour caused the new Minister to commence the process to determine if the Applicant should be removed from office. Further, although the earlier incidents of misconduct did not cause the previous Minister to recommend removal, in her correspondence she warned that all information related to this matter remained under active consideration. Nor was it inappropriate for the GIC to act while the judicial review proceedings initiated by the Applicant were ongoing.

In Weatherill 1998 , the Court declined to grant an injunction prohibiting the GIC from acting to remove the applicant from office and exercising its statutory and prerogative powers (at paras 26-28). Further, there is no basis for any insinuation of malice concerning the timing of the GIC’s decision. There is no evidence that the decision was made in order to thwart or prejudice the application before Justice Zinn. Analysis

(1) Content of the duty of fairness [ 52 ] The CRTC is established pursuant to the CRTC Act and consists of not more than thirteen members, to be appointed by the GIC. Subsection 3(2) states that a member shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed at any time by the GIC for cause.

The CRTC Act does not define either “good behaviour” or “cause” , nor does it prescribe a process to be undertaken in the event that removal for cause is being considered. [ 53 ] The parties agree that a duty of procedural fairness applies to the GIC’s decision ( Cardinal at para 14 ; Baker at para 20 ). They also agree that the concept of procedural fairness is variable and that its content is to be decided in the specific context of each case and that all of the circumstances of the case must be considered in determining the content of the duty owed ( Baker at para 21 ).

In that regard, the Supreme Court of Canada in Baker stated: 22 Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances.

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [ 54 ] The question, therefore, is first what is the content of the duty of fairness imposed on the GIC in this circumstance and, second, whether that duty was met by affording the Applicant the applicable procedural protections or safeguards ( Pelletier 2005 at para 39). [ 55 ] Baker identified several factors that are relevant in determining what is required by the duty of fairness in a given set of circumstances.

One of these is the nature of the decision being made and the process followed in making it. The closer the administrative process is to the judicial process, the greater the procedural protections required (at para 23). In this case, the process adopted by the Minister and the GIC did not resemble a judicial process, thus, this factor does not point to a high level of procedural fairness ( Vennat at paras 77-78, 127-132 and 146 ; Wedge at para 24 ; Pelletier 2008 at para 59). [ 56 ] The next factor is the nature and terms of the statutory scheme ( Baker at para 24 ).

Here there is little within the CRTC Act to assist in this analysis, other than s 3(2)). I note, however, that there is no right of appeal, although the Applicant does have the ability to seek judicial review of the GIC’s decision. [ 57 ] A third factor is the importance of the decision to the individual affected. The Supreme Court of Canada in Baker held that the more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated (at para 25).

In this case, the GIC’s decision removes the Applicant from his appointed office as a Commissioner of the CRTC and it is reasonable to assume that this could have a negative consequence on his future career.

As such, this factor weighs in favour of greater procedural protections, requiring “a high standard of justice” ( Baker at para 25 ; referencing Kane at p 1113; Vennat at paras 119-124 ) and is a significant factor affecting the content of the duty of fairness in the present case. [ 58 ] The Supreme Court of Canada in Baker next discussed the legitimate expectations of the person challenging the decision, however, this factor is not in play in the matter before me.

Finally, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself ( Baker at para 27 ). This is particularly so where the statute leaves to the decision-maker the ability to choose its own procedures or where the agency has an expertise in determining what processes are appropriate in the circumstances. In this matter, the CRTC Act is silent as to procedure and the Minister and GIC

chose the process they deemed appropriate. This would not point to a high level of procedural fairness. [ 59 ] While the Baker factors provide important guidance, they are not particularly instructive in the circumstances of this matter, overall suggesting a lower level of procedural fairness. However, the Supreme Court of Canada also concluded, more generally, that: 28 I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that were followed respected the duty of fairness.

Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. [ 60 ] Removal of a GIC appointee is rather a rare event.

In my view, it is appropriate and helpful to also review the four prior relevant removal decisions for the purpose of ascertaining the previously identified content of the duty of fairness in the circumstances of those matters. [ 61 ] The first of these is Wedge , decided by Justice MacKay of this Court in 1997. In Wedge the application for judicial review concerned a decision of the GIC to terminate the appointment, during good behaviour, of the applicant as a member of the Veterans Appeal Board (“VAB”). Following allegations of participation in election irregularities, criminal charges were not laid against Mr.

Wedge but a complaint was made to the VAB. Subsequently, Mr. Wedge received a letter from the Privy Council Office expressing concern regarding his suitability as a member of the VAB arising from his conduct in connection with the election. The letter advised that the Privy Council Office had requested that a representative of that office and the chairperson of the VAB review his conduct and prepare a report. The letter also enclosed a copy of an earlier report of an investigation completed for the Department of Justice by private investigators.

After outlining in detail the allegations giving rise to the concern regarding his suitability to remain in office, the letter advised Mr. Wedge that in order to afford him with an opportunity to provide any further facts or circumstances which should be taken into account or to comment on the accuracy of the facts included in the investigation report, a meeting had been scheduled with those representatives. [ 62 ] At the meeting Mr. Wedge and his counsel raised several concerns, including general objections to the manner in which the investigation was being conducted.

The representatives then prepared a report for the Privy Council. A copy was provided to Mr. Wedge who was invited to respond by written submissions which would be forwarded to the GIC for consideration. Mr. Wedge responded outlining his concerns. His written submissions, the report, the earlier investigation report and related material were forwarded to the GIC for consideration. The GIC subsequently determined that Mr. Wedge’s conduct during the election was incompatible with his position as a member of the VAB and terminated his appointment. [ 63 ] Mr. Wedge sought judicial review of that decision.

Justice MacKay concluded that there had been no breach of procedural fairness. He found that Mr. Wedge had been informed of the allegations against him and given an opportunity to respond. The essence of the allegations had been set out in the letter of notification and were more fully described in the investigation report and the grounds for the action by the GIC were set out in the final report. Both reports were provided to Mr. Wedge with an opportunity to respond by comment orally at the meeting and, thereafter, in writing in response to the initial report and the final report. Mr.

Wedge was thereby able to address any alleged inadequacies and omissions in the final report and to place any concerns before the decision-maker. Justice MacKay held that it was not reasonable to suggest that Mr. Wedge did not have a full and fair opportunity to present his comments to the GIC prior to its decision. As to Mr.

Wedge’s submission that he was also denied procedural fairness because he was not provided with the opportunity to cross-examine witnesses, Justice MacKay held that while the initial investigation and the review conducted by the representatives may have been significant steps in the process of considering Mr. Wedge’s future as a member of the VAB (at para 24): …those steps did not constitute an adjudicative process to which the procedures normally associated with a criminal proceeding, such as cross examination, should apply.

Accordingly, the applicant was not entitled to cross-examine witnesses interviewed, or to a full, formal, court like hearing of the matter.

In my opinion, the requirements of procedural fairness were satisfied in this case in that the applicant was apprised of the substance of the allegations against him, and of the investigation report and the final Report about these allegations, and he was accorded a fair opportunity to respond orally once at the June 1994 meeting, and twice thereafter in writing. [ 64 ] As to the standard of good behaviour, Justice MacKay stated that while members of the VAB hold their office during “good behaviour” , s 4(4) of the Veterans Appeal Board Act , SC 1985 c V-1 .2 broadly authorized the GIC to remove a member for “cause” , neither of which terms were defined.

Rather, this was a discretionary decision reached by the GIC exercising the power delegated to it by Parliament (at para 29). Justice MacKay held that: 30 In my view, there is no evidence to suggest that the Governor in Council improperly exercised its discretion in the present case.

In order to determine whether a holder of public office meets the standard of good behaviour necessary to remain in office, Cabinet, that is, the Governor in Council, must examine the conduct of that individual to assess whether it is consistent with the measure of integrity the Governor in Council deems necessary to maintain public confidence in federal institutions and the federal appointment process. 31 In the present case, the decision by Cabinet to remove the applicant from the VAB was based on consideration of the submissions of the applicant and of the Bloodworth-Whalen Report.

In light of this evidence, the Governor in Council determined the conduct of the applicant during the 1993 P.E.I. provincial election to be incompatible with the requirement of “good behaviour” upon which his appointment as a member of the VAB was based.

There is no basis for the Court to intervene in regard to that decision unless it is clear that the Governor in Council acted upon a wrong principle or perversely, without regard to the evidence before it. 32 The argument raised by counsel for the applicant, that Cabinet improperly applied a “judicial standard” of “good behaviour” to the applicant’s conduct, in my view, is simply not sustainable. The issue to be determined by the Governor in Council was whether the applicant’s conduct was consistent with the requirement of “good behaviour” pursuant to s.4 of the Act .

As mentioned earlier, no standard or definition for “good behaviour” or “cause” is provided in the Act itself. Instead, the language of s. 4(4) confers upon the Governor in Council a broad discretion to remove a member of the VAB “at any time for cause”. Accordingly, in my view, in

determining whether “cause” exists, the Governor in Council is entitled to assess whether the conduct of the applicant was consistent with the terms of his appointment to that office, including, in its judgment whether his conduct could undermine public confidence in the federal institution with which he had been appointed to serve. 33 As an appointed member to a public office involving quasi-judicial functions, the applicant had been placed by the Governor in Council in a position of public trust and confidence.

In order to maintain this position, the appointee is required to abide by the requirement of “good behaviour” and is subject to the proviso that, at any time, he or she may be removed by the Governor in Council for cause. In my view, given the position of trust and influence conferred upon appointees to federal office, including the Veterans Appeal Board, and their influence as representatives of that office on the public’s perception, it is not for this Court to limit the scope of discretion vested by Parliament in the Governor in Council… [ 65 ] On this basis, Mr.

Wedge’s application for judicial review was denied and the Order-in-Council terminating his appointment was not quashed. [ 66 ] The second decision in this group is Weatherill 1999 , decided by Justice Sharlow in 1999, in which she reviewed the decision of the GIC to remove Mr. Weatherill, who had been appointed to hold office during good behaviour, as the chairman of the Canada Labour Relations Board (“CLRB”). [ 67 ] There, on the same day as an Auditor General’s report reviewing travel expenses and other allowances and benefits reimbursed to the applicant was tabled in Parliament, Mr.

Weatherill was advised by letter from the Deputy Clerk of the Privy Council and Counsel (“Deputy Clerk”) that the GIC would be considering, in light of the Auditor General’s report, whether there was cause for his removal pursuant to s 10(2) of the Canada Labour Code , RSC 1985, c L-2. The letter identified specific statements in the Auditor General’s report that were of concern and invited Mr.

Weatherill to provide any information that he considered relevant or to otherwise comment on the accuracy of the Auditor General’s report and offered to meet with the applicant that week. [ 68 ] On December 5, 1997 counsel for Mr. Weatherill met with the Deputy Clerk and advised that Mr. Weatherill had not been given sufficient time to respond to the Auditor General’s report and could not adequately respond to her December 2, 1997 letter without having access to the working papers and data collected by the Auditor General in forming its report and sufficient time to analyze them. That same day, counsel for Mr.

Weatherill attended a meeting arranged by the Deputy Clerk with officials of the Office of the Auditor General at which time he was given some information orally but the officials wished to further consider his request for documents. By letter of December 9, 1997 Mr. Weatherill made a formal request to the Auditor General for the documents. By letter of the following day the Office of the Auditor General provided the working papers related to his expenses but refused access to other requested documents. On December 11, 1997 the Deputy Clerk wrote to Mr.

Weatherill acknowledging that he would need more time to prepare and proposed a meeting on December 17 or 18, 1997. Further, that she would try to obtain some of the requested documents directly from other government agencies, that she had been asked to conclude her report by Christmas and that Mr. Weatherill would be afforded an opportunity to respond in writing to her report. [ 69 ] Various correspondence and telephone conversations were exchanged and held, including a letter from Mr.

Weatherill’s counsel on December 14, 1997 advising that the process was contrary to s 69 of the Judges Act and would not result in a fair and impartial hearing and that he was still not in receipt of information he had required as to the comparisons that were the basis of the Auditor General’s report. Ultimately, no further information was provided and there were no further meetings between the Deputy Clerk and Mr. Weatherill or his counsel. The Deputy Clerk delivered a copy of her report to Mr.

Weatherill on December 24, 1997, a covering letter advised that any written reply would be submitted to the GIC by January 16, 1998. Mr. Weatherill made no submissions but brought an application for judicial review seeking an order preventing the GIC from considering the question of his removal in the absence of an inquiry under s 69 of the Judges Act and sought an interim injunction in that regard. The injunction was denied on January 23, 1998 (see Weatherill 1998 ). The Privy Council decided that the process would continue while that decision was under appeal and advised Mr.

Weatherill that he must make any submissions by January 28, 1998. Mr. Weatherill’s counsel requested the process be stopped pending the hearing of the appeal, scheduled for February 2, 1998, and reminded the Privy Council that Mr. Weatherill had still not been provided with all of the documents required to respond to the report. The Privy Council refused to stop the process and, on January 27, 1998, made the removal order. [ 70 ] On judicial review, Mr. Weatherill argued that he could not be removed from office without an inquiry under

section 69 of the Judges Act and that there had been a denial of fundamental justice in the procedure that led up to the removal order. Justice Sharlow concluded that s 69(1) applies only at the discretion of the Minister of Justice. Further, that the removal of a person from an office held during good behaviour cannot be done without affording that person procedural protection, however, that a full hearing, with examination and cross-examination of witnesses and full disclosure of documents was not essential to the fair exercise of the power of removal (at para 87). [ 71 ] Mr.

Weatherill also argued that he was denied procedural fairness because there was a reasonable apprehension of bias demonstrated by press reports that members of Parliament had applauded when it was announced that proceedings to effect his removal from office were intended, and, that he should have been given better access to the documents relied on by the Auditor General and more time to respond to the Deputy Clerk’s report. Justice Sharlow did not accept that the press reports were sufficient to establish a reasonable apprehension of bias nor that Mr.

Weatherill was denied a fair opportunity to respond to the allegations against him or was unfairly treated, finding that he had been afforded substantially the same information and opportunity to be heard as in Wedge . Justice Sharlow also did not accept that Mr. Weatherill’s decision to make no submissions was due to a lack of time or knowledge and that the GIC did not act unfairly in refusing further delay after the refusal at first instance of the interim injunction (at para 96). [ 72 ] The third decision in this series is Vennat , decided by Justice Noël in 2006.

He allowed the application, quashing the decision of the GIC on the basis of a failure of procedural fairness. There, Mr. Vennat had been appointed as President and Chief Executive Officer of the Business Development Bank of Canada (“BDC”) by Order-in-Council. His appointment was for a five year term, during good behaviour, pursuant to s 6(2) of the Business Development Bank of Canada Act , SC 1995 c 28. In February 2004, the Superior Court of Quebec issued its decision in Beaudoin v Banque de développement du Canada , [2004] JQ No 705 (CS Que) (“ Beaudoin ”) which contained harsh comments about the BDC and Mr.

Vennat, who was a witness at the hearing. On February 18, 2004 the Board of

Directors of the BDC issued a press release stating that it had decided not to appeal the decision and maintained full confidence in Mr. Vennat. On February 23, 2004 Mr. Vennat wrote to the Prime Minister of Canada advising that he was very concerned about newspaper reports that the government was preparing to make decisions about his future. If true, he requested the opportunity to be fairly heard, with due process, in the presence of the Chairman and counsel at a meeting where the Clerk of the Privy Council and the Deputy Minister of Justice would participate, before any decision and any announcement was made.

In response, on the following day, the Minister of Industry sent Mr. Vennat a letter informing him that upon review of the Beaudoin decision and its findings as to Mr. Vennat’s conduct and the role he had played in the matter, serious questions had been raised regarding whether there were valid grounds justifying the termination of his appointment and advising him that, by way of an Order-in-Council adopted earlier that day, he was suspended without pay.

He was given until March 1, 2004 to produce written reasons explaining why the GIC should not terminate his appointment for cause. [ 73 ] On February 25, 2004 Mr. Vennat wrote to the Minister of Industry asking for the grounds of the allegations and requesting a meeting before the Clerk of the Privy Council Office and the Deputy Minister of Justice. The Minister of Industry responded by letter the following day and informed Mr.

Vennat that the Beaudoin decision raised serious questions about his conduct and role in that matter and drew his attention to paragraphs 597, 651 and 653 of that decision, also asking that he comment on eleven other paragraphs but noting that this was not an exhaustive list of all of the paragraphs of concern and that Mr. Vennat must provide a global and comprehensive response to the decision as a whole. The Minister of Industry agreed to meet with Mr. Vennat and advised that the recommendation that she would make to the GIC would be based on the Beaudoin decision, explanations provided by Mr.

Vennat during the meeting and on Mr. Vennat’s written submissions. [ 74 ] On February 29, 2004 Mr. Vennat’s counsel wrote to the Minister of Industry pointing out the unreasonableness of the time limit prescribed for the written submissions and noted that only a first draft could be prepared by then.

The letter also pointed out that the Beaudoin decision was 1745 paragraphs, over 210 pages in length and that the facts and evidence upon which it was based comprised of 32 days of hearing, 35 witnesses, more than 300 exhibits and approximately 8000 pages of transcripts. [ 75 ] A meeting of no more than two hours was held on March 1, 2004 during which Mr. Vennat discussed a six page letter that gave his version of the facts regarding various aspects of the Beaudoin decision and part of a preliminary memorandum which had been prepared to send to the Minister of Industry with the letter.

By letter of March 10, 2004 sent to the Minister of Industry and copied to the Minister of Justice, Mr. Vennat proposed that he be given the opportunity to defend himself before an impartial and independent tribunal by reference of the matter to an inquiry convened pursuant to s 69 of the Judges Act . On March 12, 2004 the Minister of Industry wrote to Mr. Vennat and informed him of his dismissal. The letter stated that the Beaudoin decision and Mr.

Vennat’s written and oral submissions had been considered but that the GIC determined that she had lost confidence in him as President of BDC and that his conduct in relation to the issues contemplated in the reasons of the Beaudoin decision was incompatible with his continued appointment. Attached was an Order-in-Council adopted earlier that day to that effect. [ 76 ] In determining the duty of fairness, Justice Noël first conducted an analysis in accordance with the Baker factors.

He concluded that the process of the adoption of Orders-in-Council is very different than the process leading to a judicial decision, it is a non-judicial and non-formalistic procedure (at para 77) and, as such, the nature of the decision gives rise to procedural safeguards that are “somewhat flexible, intended to enable the interested party to have a real opportunity to be heard” (at para 78).

However, that in the absence of a legislated procedure for dismissal, the GIC is still required to give the affected party a “real opportunity” to respond to the reasons for the employer’s dissatisfaction (at para 80). [ 77 ] While acknowledging that the GIC’s obligation to give reasons should not be the same as the obligation imposed on judicial or quasi-judicial tribunals, Justice Noël stated that, nevertheless there was an obligation to do so and that the reasons given to Mr.

Vennat by the GIC were insufficient as there was nothing in the dismissal order or in the letter which could be characterized as analysis or reasoning and no mention had been made to the position submitted by Mr. Vennat or why his written and oral arguments had been dismissed: 95 This is not a matter of imposing requirements for judicial or quasi-judicial reasons on the Governor in Council but rather of asking the Governor in Council to explain the reasons for the removal.

The decision, without being reasoned in great detail, must convey a certain reasoning taking into account the submissions made by the applicant in his preliminary memorandum (Exhibit MV-15). The decision must summarily explain why the arguments submitted were dismissed. The letter could have contained this information.

These requirements are certainly not excessive when the fate, the reputation and the career of an individual is being decided, with the knowledge that the decision will inevitably receive a great deal of media attention. [ 78 ] Justice Noël addressed the removal mechanisms instituted in other federal laws for persons appointed during good behaviour and, having gone through these examples, held that the concept of holding office during good behaviour is not, in and of itself, enough to substantiate finding an automatic and clearly defined acknowledgment of specific procedural safeguards.

However, that Parliament’s use of the term “during good behaviour” was not insignificant and was an important indication of its intention to give such appointees “enhanced procedural safeguards” (at para 105) as did the absence of a right of appeal and the foreseeable impact of the GIC’s decision on Mr.

Vennat’s right to work and his reputation. [ 79 ] As to the procedural choices of the decision-maker, Justice Noël found that it would not be appropriate to impose a procedure similar to the one provided under s 69 of the Judges Act (citing Weatherill 1999 at para 82 ) and that the GIC is free to decide whether or not to use such mechanisms (at para 130). [ 80 ] Justice Noël then addressed the question of whether Mr. Vennat was entitled to a personalized inquiry. He determined that this was necessary and that the obligation had not been observed.

He noted that Wedge and Weatherill 1999 illustrated that the GIC, in an employee-employer relationship, normally conducts a personalized inquiry into the facts even if these facts appear to have been established generally in a fact finding report, and the employee has a right to respond. In Wedge the second and third reports contemplated Wedge personally and he could have responded to them. Similarly, in Weatherill 1999 , the second report contemplated Mr. Weatherill and he had the opportunity to present his position and point out inaccuracies in the record. However, that Mr.

Vennat did not have a similar opportunity (at para 166).

[ 81 ] Further, Mr. Vennat had strenuously contested the truthfulness of certain facts relied upon in the Beaudoin decision, offered to submit witnesses and evidence contradicting those facts, formally requested an inquiry and submitted that the evidence established that he had an exemplary professional record and an untainted reputation prior to the Beaudoin decision. Justice Noël found that these were circumstances that would play a role in justifying a more elaborate inquiry as did the complexity of the matter (at paras 168-169).

The facts in Beaudoin implicated numerous persons who contradicted each other at the lengthy and complex hearing. The GIC ought to have conducted a specific analysis of Mr. Vennat’s conduct which could only come from a serious inquiry and personalized review of the facts. To rebut the presumption of facts presented by the Beaudoin decision, Mr. Vennat should have been permitted to present evidence by affidavit, interviews or counter-evidence in the context of that personalized inquiry. He could not, in less than eight days, review all of the relevant evidence in order to do so.

Justice Noël found that the factual situation and the type of investigation conducted did not reflect a high standard of justice, resulting in a breach of procedural fairness (at paras 169-174). [ 82 ] Justice Noël also explained what he contemplated by the term “personalized” inquiry which must make it possible to shed light on the specific conduct of the person affected: 178 With respect to the term “personalized” used to describe the inquiry, it means that the inquiry leading to the removal must contemplate the person(

s) facing the removal procedure. This does not exclude the possibility that several persons be contemplated by the same personalized inquiry, as long as the inquiry targets the individual actions of each of these persons and they have the right to a personalized response. The inquiry must, in short, make it possible to shed light on the specific conduct of the person affected. 179 The choice that I made to use the expression “personalized inquiry” is based in part on the nature of the proceeding that must be followed.

In my opinion, it would be wrong to say that the Governor in Council was only bound to conduct a simple review regarding the applicant’s conduct, considering the complexity of the matter. The procedure followed in Wedge and Weatherill was not a simple review. Instead, an independent investigation of the facts was carried out by the decision-maker, and that investigation was personalized. On the other hand, my choice to use the expression “personalized inquiry” is based on the respondent’s own choice of vocabulary.

On several occasions the respondent uses the term [TRANSLATION] “inquiry” [“enquête”] in his memorandum, which confirms that it is an appropriate expression in the circumstances (respondent’s memorandum, paragraphs 70 and 85 to 88). [ 83 ] Justice Noël also remarked as to the requirement of fair play and transparency that the GIC is bound by (at para 185) and found that three factors in that case showed that the decision-maker had an inappropriate attitude, inconsistent with transparency and fair play, being that it was the applicant who was demanding that the procedural safeguards be observed, while the decision-maker should have taken it upon herself to offer these safeguards to the applicant and explain the decisional framework to him (at para 186); the applicant was unaware of the burden imposed on him by the GIC (at para 187); and, that the letters in which Mr.

Vennat expressed his concerns after reading the

article in the newspaper La Presse and asking that the procedure of s 69 of the Judges Act be followed went unanswered, yet they were a means by which Mr. Vennat was making requests concerning the decision-making process and there was nothing to prevent the Minister of Industry or the Privy Council Office from responding to these requests (at para 188). Justice Noël found that the attitude betrayed by the decision-maker’s acts and omissions were not analogous to the work of the GIC’s delegates in Wedge and Weatherill 1999 . He concluded that the GIC did not deal with Mr.

Vennat in a transparent manner, in accordance with fair play (at para 190). [ 84 ] Justice Noël also conducted an analysis of the procedural safeguards pursuant to Knight and found that Mr. Vennat had been informed of the reasons for the GIC’s dissatisfaction and was aware of the substance of the reasons for the allegations. However, that his right to respond was only observed in part. In the absence of a personalized inquiry, Mr.

Vennat could not have meaningfully responded to the reasons for dissatisfaction considering the complexity of the matter and the relatively brief period of time to prepare his submissions which affected the quality of his right to respond. To respond meaningfully Mr. Vennat and his counsel should have had detailed knowledge of the facts surrounding the hearing in Beaudoin but Mr. Vennat was simply a witness in that matter. Therefore, he could not have had detailed knowledge of the direct and indirect remarks made in that decision regarding him and the evidence on which those remarks were based (at para 203).

Another factor was the absence of Mr. Ritchie, the Chairperson of the BDC’s Board of Directors at the time the Beaudoin decision was rendered, at the meeting of March 1, 2004 as requested by Mr. Vennat. Mr. Ritchie could have spoken to the decision not to appeal the Beaudoin decision and the Board of Director’s vote of confidence in Mr. Vennat, his absence also affected the quality of Mr. Vennat’s right to respond (at paras 206-207). Further, the standard applied by the GIC was very strict and improper. In conclusion, Justice Noël found that: [215] The applicable procedural safeguards are the following.

First, the applicant was entitled to the safeguards recognized in Knight v. Indian Head School Div. No. 19 , above, at page 683, namely the right to know the reason(

s) for dissatisfaction as well as the right to respond to the reasons for dissatisfaction. These safeguards are the most basic form of the duty to

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