Mooney v. Canadian Society for Immigration Consultants

Mooney v. Canadian Society for Immigration Consultants
Court (s) Database
Federal Court Decisions
Date
2011-04-27
Neutral citation
2011 FC 496
File numbers
IMM-2077-10
Decision Content
Federal Court
Cour fédérale
Date: 20110427
Docket: IMM-2077-10
Citation: 2011 FC 496
Ottawa, Ontario, April 27, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PHILIP MOONEY, RHONDA WILLIAMS
and
GERD DAMITZ
Applicants
and
CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Respondent
REASONS FOR JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of three decisions (Decisions) made by the Canadian Society for Immigration Consultants (CSIC / the Society) in response to a complaint against the Applicants.
BACKGROUND
[2] The Applicants are current or former board members of the Canadian Association of Professional Immigration Consultants (CAPIC), a non-profit organization that provides education, information and recognition to immigration consultants and engages in lobbying on their behalf. The professional regulator for immigration consultants in Canada is CSIC. The Federal Court of Appeal confirmed in Law Society of Upper Canada v Canada (Minister of Citizenship and Immigration), 2008 FCA 243 [Law Society of Upper Canada] at paragraph 73, that the Governor-in-Council has sub-delegated to CSIC the legislative power to enact its own rules, standards and qualifications for membership. Accordingly, CSIC has established Rules of Professional Conduct and a Complaints and Discipline Policy. Pursuant to regulations enacted under section 91 of the Act, all three Applicants are CSIC members.
[3] In June 2008, the Standing Committee on Citizenship and Immigration published its report entitled Regulating Immigration Consultants (Report), which was a study of “unacceptable practices of immigration consultants.” In its final report, the Standing Committee recommended that CSIC, as it currently exists, should be wound up and then re-established under federal statute. John Ryan, Chairman and Acting CEO of CSIC, opined that this recommendation, in particular, was “unacceptable.”
[4] On 24 June 2008, Mr. Mooney drafted and published on the CAPIC website an open letter (Letter) supporting the recommendations of the Standing Committee’s Report. The Letter criticized Mr. Ryan’s comments and noted that CAPIC had urged CSIC to “think of the greater good of the profession, and accept the [proposed] changes.” It included the following relevant statements:
Unfortunately, our Regulator appears to have chosen the route of self-preservation…. What the committee has offered all of us, is to reinforce these successes with real authority to better protect consumers from those who are not regulated…. The response from CSIC does not acknowledge this point, since it would mean a total restructuring of the Corporation, and at the very least, a new governance structure. They call this “unacceptable”.
We believe that what is “unacceptable” is that the Board of the Regulator acts as though only they understand what is best for consumer protection and what is best for the profession. The Standing Committee listened to all kinds of input before issuing their report, including much input from consultants themselves, who clearly expressed frustration with the way their Regulator operates….
We believe that what is “unacceptable” is a Complaints and Discipline process that does not apply to unregulated agents, and which cannot have its decisions enforced in law even for its own members, because the Society is not supported by statute. It is also unacceptable that its decisions cannot be subject to judicial review, meaning that members could lose their right to practice even if an error is made in the process.
… Mr. Ryan states that CSIC has a Strategic Plan. That is news to most of us, as we have never seen it…. Perhaps that is why so many feel that CSIC is busy doing things to us, instead of listening. Mr. Ryan also states that CSIC presents Audited Financial statements to its members. Again, there is no mention of this on their web site, and to the best of our recollection, we have not seen one in two years. In the past, any Audited Statement that we have seen has been so top-level, that members cannot see how their fees are being spent in any kind of meaningful way….
[5] Wenda Woodman, the Complaints and Discipline Manager of CSIC, believed that the publication of this Letter may have constituted a breach of the Society’s Rules of Professional Conduct. Consequently, she launched a complaint against all CAPIC board members. On 3 July 2008, Pierre Briand of CSIC began an investigation into the alleged breach.
[6] Rules 16.5 and 16.6 of CSIC’s Rules of Professional Conduct state:
An Immigration Consultant shall act toward the Society with respect and dignity.
An Immigration Consultant shall not bring discredit upon the Society by acting in such a way as to undermine or threaten to undermine the Society’s mandate and/or governing principles.
[7] Between September 2009 and April 2010, CSIC closed the complaint against all CAPIC board members except the Applicants. The complaint alleged that the Applicants had discredited the Society and had included inaccurate statements in the Letter. During a 17-month investigation, Mr. Briand interviewed the Applicants as well as other CAPIC board members and requested certain documentation. Based on his findings, the Complaints and Discipline Manager determined that disciplinary action should be taken against the Applicants and the nature of that action.
[8] CSIC issued an Administrative Discipline Order against Mr. Mooney and fined him $1000 for “undermining” and “bringing discredit” upon CSIC. CSIC issued a Letter of Warning to both Ms. Williams and Mr. Damitz for “withholding and concealing information” during the investigation.
DECISIONS UNDER REVIEW
[9] The Decisions are comprised of the following the documents: in the case of Mr. Mooney, an 18 March 2010 Administrative Discipline Order from Ms. Woodman, which was informed by a 12 December 2009 Closing Memorandum from Mr. Briand; in the case of Ms. Williams, a 31 March 2010 Letter of Warning from Ms. Woodman, which was informed by a 14 December 2009 Closing Memorandum from Mr. Briand; and, in the case of Mr. Damitz, a 1 April 2010 Letter of Warning from Ms. Woodman, which was informed by a 14 December 2009 Closing Memorandum from Mr. Briand.
Mr. Mooney
[10] The Closing Memorandum pertaining to Mr. Mooney indicates that Mr. Mooney published the Letter in question, which was “confrontational,” “unfavourable and negative to CSIC” and “far from being in the tone of someone promoting the ‘enhancement’ of CSIC.” Its “misinformation” was widely available to the public at large over a period of months, which “marred” CSIC’s reputation. Moreover, Mr. Mooney failed to observe CAPIC’s own procedures when he neglected to put the Letter forward for discussion at a board meeting and to circulate it for comments. Finally, Mr. Briand asked Mr. Mooney to provide an accurate list of the directors serving on CAPIC’s board at the time that the Letter was published as well as related emails and minutes, and it took Mr. Mooney months to comply with these requests.
[11] The Administrative Discipline Order states that Mr. Mooney’s reporting on CSIC in the Letter was not accurate and that he never solicited CSIC’s input before publication. As a member of CSIC, Mr. Mooney had a duty to the profession and to the Society to comply with its Rules of Professional Conduct and the spirit of these rules at all times. Mr. Mooney was found to have breached Rules 16.5 and 16.6 and, in consequence, was fined $1000 in accordance with the Society’s Complaints and Discipline Policy.
Ms. Williams
[12] The Closing Memorandum pertaining to Ms. Williams states that Mr. Briand asked her to name the CAPIC board members who were serving at the time the Letter was published and who were also members of CSIC. She responded that she did not remember that information. Mr. Briand then asked her to verify a list of CAPIC’s board of directors to ensure that no names were missing. She reviewed the list and replied that she thought the list accurate. As secretary of the CAPIC board of directors, Ms. Williams was the holder of the records and the minutes. It would have been a simple matter for her to verify the list and provide a definite answer, but she did not do so. This conduct fell short of that expected from a professional.
[13] The Letter of Warning states that Ms. Williams breached the Society’s Complaints and Discipline Policy by “withholding and concealing information reasonably required for the purpose of an investigation.” Her duty to cooperate with the investigation included refreshing her memory prior to her interview with Mr. Briand and reviewing relevant documents, particularly the list of CAPIC board members. Relying on “I don’t think so” is misleading and amounts to withholding and concealing information. The Letter of Warning was placed in Ms. William’s membership file.
Mr. Damitz
[14] The Closing Memorandum pertaining to Mr. Damitz observes that he bore responsibility for the publication of the Letter, along with Mr. Mooney. In his interview with Mr. Briand, Mr. Damitz frequently questioned the relevance of the investigator’s questions and was “hesitant” regarding the composition of the board of directors of CAPIC at the time the Letter was published. As an active board member, he could have requested access to the minutes to refresh his memory before or after the interview, but he did not do so. Mr. Damitz thereby failed to cooperate fully and acted “contemptuously” with respect to the investigative process.
[15] The Letter of Warning states that Mr. Damitz breached the Society’s Complaints and Discipline Policy by “withholding and concealing information reasonably required for the purpose of an investigation.” His duty to cooperate with the investigation included refreshing his memory prior to his interview with Mr. Briand and reviewing the list of CAPIC board members. The Letter of Warning was placed in Mr. Damitz’s membership file.
[16] These documents comprise the Decisions under review.
ISSUES
[17] The Applicants raise the following issues:
(a) Whether the Decisions were made for an unauthorized purpose;
(b) Whether the Decisions are discriminatory against the Applicants;
(c) Whether the Administrative Discipline Order violates section 2(b) of the Charter;
(d) Whether CSIC failed to provide procedural fairness to the Applicants with respect to:
i. disclosure of particulars,
ii. opportunity to respond,
iii. requests for evidence that was beyond the scope of its investigation, and
iv. adequacy of reasons; and
(e) Whether the Decisions raise a reasonable apprehension of bias.
STATUTORY PROVISIONS
[18] The following provisions of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter], are relevant to these proceedings:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
[…]
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ….
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
2. Chacun a les libertés fondamentales suivantes :
[…]
(b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication; ….
[19] The following provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) are applicable in these proceedings:
Regulations
91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
Règlement
91. Les règlements peuvent prévoir qui peut ou ne peut représenter une personne, dans toute affaire devant le ministre, l’agent ou la Commission, ou faire office de conseil.
[20] The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), are applicable in these proceedings:
Interpretation
2. The definitions in this section apply in these Regulations.
[…]
“authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003.
[…]
Representation for a fee
13.1 (1) Subject to subsection (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
[…]
Students-at-law
(3) A student-at-law shall not be deemed under subsection (1) to be representing, advising or consulting for a fee if the student-at-law is acting under the supervision of a member in good standing of a bar of a province or the Chambre des notaires du Québec who represents, advises or consults with the person who is the subject of the proceeding or application.
Définitions
2. Les définitions qui suivent s’appliquent au présent règlement.
[…]
« représentant autorisé » Membre en règle du barreau d’une province, de la Chambre des notaires du Québec ou de la Société canadienne de consultants en immigration constituée aux termes de la partie II de la Loi sur les corporations canadiennes le 8 octobre 2003.
[…]
Représentation contre rémunération
13.1 (1) Sous réserve du paragraphe (2), il est interdit à quiconque n’est pas un représentant autorisé de représenter une personne dans toute affaire devant le ministre, l’agent ou la Commission, ou de faire office de conseil, contre rémunération.
[…]
Stagiaires en droit
(3) Pour l’application du paragraphe (1), un stagiaire en droit n’est pas considéré comme représentant une personne ou faisant office de conseil contre rémunération s’il agit sous la supervision d’un membre en règle du barreau d’une province ou de la Chambre des notaires du Québec qui représente cette personne dans toute affaire ou qui fait office de conseil.
[21] The following provisions of the Canadian Society for Immigration Consultants, Rules of Professional Conduct (Rules), are applicable in these proceedings:
PART 16: Responsibility to the Society and Others
[…]
16.5 An Immigration Consultant shall act toward the Society with respect and dignity.
16.6 An Immigration Consultant shall not bring discredit upon the Society by acting in such a way as to undermine or threaten to undermine the Society’s mandate and/or governing principles.
PARTIE 16
RESPONSABILITÉ ENVERS LA SOCIÉTÉ ET LES AUTRES
[…]
16.5 Un consultant en immigration doit se comporter envers la Société avec respect et dignité.
16.6 Un consultant en immigration ne doit pas jeter le discrédit sur la Société en agissant de manière à saper ou à menacer de saper le mandat et/ou les principes directeurs de la Société.
[22] The following provisions of the Canadian Society for Immigration Consultants, Complaints and Discipline Policy (Policy), are applicable in these proceedings:
2.6 No Member shall withhold, destroy or conceal any information, documents or thing reasonably required for the purpose of an investigation by an Investigator.
[…]
3.3 After considering a matter that has entered the complaints and compliance process and any response in writing from the Member, the Manager may do one or more of the following:
(a) take no action;
(b) require the Member to successfully complete educational or upgrading measures specified by the Manager at the Member’s expense;
(c) advise, caution or warn the Member in writing;
(d) require the Member to appear before the Manager or a person designated by the Manager, at a time and place specified by one of them, to be cautioned in person;
(e) refer the matter to another body that could more appropriately deal with the matter;
(f) refer the matter to the Discipline Council for a Hearing;
(g) require the Member to take such other action that the Manager considers appropriate that is not inconsistent with the By-Laws of the Corporation.
(h) suspend a Member;
(i) impose a financial penalty upon the Member.
2.6 Aucun membre ne peut retenir, détruire ou dissimuler des renseignements, des documents ou des éléments qui sont raisonnablement requis aux fins d’une enquête effectuée par un enquêteur.
[…]
3.3 Après avoir examiné une question qui a été soumise au processus de plaintes et de conformité et la réponse écrite du membre, le directeur peut prendre l’une ou plusieurs des mesures suivantes :
(a) ne prendre aucune mesure;
(b) exiger que le membre suive et termine avec succès les programmes d’éducation ou de perfectionnement qu’il prescrira, aux frais du membre;
(c) conseiller, avertir ou mettre en garde le membre par écrit;
(d) exiger que le membre comparaisse devant lui ou devant une personne qu’il aura désignée, au moment et à l’endroit stipulés par l’un d’entre eux, afin d’être averti en personne;
(e) soumettre la question à un autre organisme qui pourrait traiter la question de façon plus appropriée;
(f) soumettre la question au conseil de discipline aux fins de la tenue d’une audition;
(g) exiger que le membre prenne d’autres mesures qu’il jugera appropriées et qui ne sont pas incompatibles avec les règlements de la Société.
(h) suspendre le membre ;
(i) imposer une pénalité financière au membre.
STANDARD OF REVIEW
[23] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[24] An inquiry into whether the Decisions were made for an unauthorized purpose is an inquiry into whether the decision-maker acted outside its jurisdiction. The issues raised by the Applicants—jurisdiction, discrimination and Charter infringement, procedural fairness and reasonable apprehension of bias—are reviewable on a standard of correctness. See Dunsmuir, above. When applying the correctness standard, a reviewing court will not show deference to the decision-maker’s reasoning process. Rather, it will undertake its own analysis of the question.
ARGUMENTS
The Applicants
Decisions Were Made for an Unauthorized Purpose
[25] The Applicants contend that CSIC, a statutory delegate, used its delegated power for an unauthorized purpose, specifically to silence the Applicants’ criticism and to prevent certain members from running for CSIC board positions.
[26] Justice Rand in Roncarelli v Duplessis, [1959] SCR 121 at pages 15 and 16, stated:
“Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption….
“Good faith” in this context … means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.
[27] The Applicants assert that, although CSIC is authorized to discipline its members, it cannot do so as retribution for criticism. See Desjardins v Canada (Royal Canadian Mounted Police, Commissioner) (1986), 3 FTR 52, [1986] FCJ No 237 (QL) at paragraph 6.
[28] In considering whether a discretionary decision is based on improper considerations, the Court must determine the purpose of the enabling statute. Any ambiguity regarding whether the administrative decision is within the scope of the decision-maker’s enabling statute must be resolved in favour of the applicant. See Shell Canada Products Ltd. v Vancouver (City) (1993), [1994] 1 SCR 231, [1994] SCJ No 15 (QL) at paragraphs 97-98.
[29] The purpose of CSIC’s enabling legislation is to protect the public against unscrupulous consultants. See Onuschak v Canadian Society of Immigration, 2009 FC 1135 at paragraphs 15 and 17. The Applicants allege that this does not accord with CSIC’s actual purpose in launching the complaint, which was to silence and punish its critics. Use of delegated power for an unauthorized purpose is ultra vires the jurisdiction of the decision-maker and may be quashed on judicial review. See Jones and De Villars, Principles of Administrative Law, 4th ed. (Scarborough: Thomson Carswell, 2004) [Jones and De Villars] at page 169.
Decisions Are Discriminatory
[30] The Applicants argue that there is no justification for CSIC’s decision to dismiss the complaint against all other CAPIC board members except the Applicants. This decision was discriminatory, as it was “partial and unequal between different classes.” See Moresby Explorers Ltd. v Canada (Attorney General), 2006 FCA 144 at paragraph 23. An administrative decision that is discriminatory is ultra vires and may be quashed. See Guy Régimbald, Canadian Administrative Law (Markham: LexisNexis, 2008) at page 208.
Decisions Violate the Applicants’ Freedom of Expression
[31] The Applicants argue that, in deciding to investigate and to discipline members for commenting on matters of public importance, CSIC violated their right to free expression, which is protected under section 2(b) of the Charter. The protection of political speech is a fundamental purpose of section 2(b). As Chief Justice Brian Dickson of the Supreme Court of Canada observed in R v Keegstra (1990), 117 NR 1, [1990] SCJ No 131 (QL) at paragraph 89:
The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.
[32] The Applicants rely on Slaight Communications Inc. v Davidson (1989), 59 DLR (4th) 416, [1989] SCJ No 45 (QL) at paragraph 87, for the proposition that administrative decisions that breach the Charter may be quashed by the reviewing court. In that case, the Supreme Court of Canada stated:
The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1…. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.
[33] The Applicants also argue that, because the original decision to investigate was in breach of their Charter rights, all subsequent decisions arising as a result of the unlawful investigation, including the Letters of Warning, should be quashed. See Kuntz v Saskatchewan Association of Optometrists (1992), [1993] 3 WWR 651, [1992] SJ No 644 (QL) (QB).
CSIC Breached Its Duty of Procedural Fairness
[34] A duty of fairness applies to all disciplinary investigations and decisions. See Kuntz, above. With respect to the investigation, the Applicants argue that, in the instant case, CSIC failed to provide them with sufficient particulars of the allegation and a fair opportunity to respond. See Syndicat des employés de production du Québec et de l’Acadie v Canada (Human Rights Commission) (1989), [1989] 2 SCR 879, [1989] SCJ No 103 (QL). Furthermore, the investigation was overbroad. CSIC requested documentation and information beyond the scope of the investigation and entered into a “fishing expedition.” CSIC’s persistent inquiries into the identities of CAPIC board members at the time that the Letter was published were beyond the scope of the investigation.
[35] With respect to the disciplinary measures, the Applicants assert that Mr. Mooney’s Administrative Discipline Order failed to disclose which of the comments in the Letter were inaccurate. As for the Letters of Warning, the Applicants argue that they also breach the rules of procedural fairness because they resulted from CSIC’s overbroad inquiries into the identities of CAPIC board members.
Investigation and Decisions Raise a Reasonable Apprehension of Bias
[36] The test for reasonable apprehension of bias is whether a reasonably informed bystander would perceive that the adjudicator was biased. See Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) (1992), [1992] 1 SCR 623, [1992] SCJ No 21 (QL) at paragraph 22. The Applicants contend that CSIC’s investigation and its Decisions raise a reasonable apprehension of bias for the following reasons:
(a) The Complaints and Discipline Manager acted as both complainant and decision-maker with respect to the investigation;
(b) Although the complaint concerned a single Letter, CSIC unjustifiably took over 17 months to conduct its investigation;
(c) The investigation looked into matters unrelated to the complaint, including CAPIC’s internal operations, its workings and its historic views of CSIC and CSIC activities;
(d) The Decisions have effectively prevented the Applicants from running for a position on CSIC’s board of directors, and there have long been concerns that CSIC uses its disciplinary procedures to prevent members from running for office; and
(e) The impetus for the complaint was criticism of CSIC.
The Respondent
CSIC’s Rules and Discipline Policy Not Made for an Unauthorized Purpose
[37] The Federal Court of Appeal has recognized CSIC’s sub-delegated power to establish rules and policies to fulfill its mandate. See Law Society of Upper Canada, above. The Respondent submits that CSIC’s Rules of Professional Conduct and its Complaints and Discipline Policy constitute subordinate legislation enacted within the scope of the Society’s enabling legislation and that, for this reason, they are valid. See Jones and De Villars, above, at pages 100, 105, 107-08.
[38] Contrary to the Applicants’ assertions, there is no evidence that the Rules or Policy were adopted in bad faith or for a purpose irrelevant (and, therefore, improper) to the Society’s mandate which, according to its Letters Patent, is to regulate consultants in the public interest in accordance with the Society’s policies and procedures. Neither does the establishment of the Rules or Policy constitute an abuse of discretion. Consequently, there is no basis upon which the Court can interfere. See Maple Lodge Farms Ltd. v Canada, [1982] 2 SCR 2 at pages 7 and 8.
Decisions Do Not Discriminate
[39] The Applicants argue that the Decisions single them out for treatment that is harsher than that meted out to the other CSIC members of the CAPIC board of directors who were serving when the Letter was published. The Respondent contends that this is not accurate. Mr. Mooney was disciplined because he wrote the Letter in question and because he published it without soliciting input from other members, contrary to CAPIC procedures. Ms. Williams and Mr. Damitz were disciplined for withholding and concealing information during the investigation. Had these two been cooperative, the complaint against them would have been dismissed, as it was dismissed against ten of the other CAPIC board members.
CSIC’s Rules and Policy Do Not Violate the Charter
[40] CSIC’s Rules of Professional Conduct and its Complaints and Discipline Policy require members to treat the Society with respect and to refrain from discrediting the Society by undermining its mandate and principles. Regulatory bodies commonly impose similar obligations on their members. They have readily been upheld by the Court and do not offend the Charter. See Perry v Association of Professional Engineers and Geoscientists of the Province of British Columbia, 2005 BCSC 1102 at paragraphs 8, 14 and 15; Ahrens v Alberta Teachers Association (1994), 15 Alta LR (3d) 388, [1994] AJ No 30 (QL) (QB) at paragraph 2; Histed v Law Society of Manitoba, 2007 MBCA 150 at paragraph 54.
[41] Moreover, the right to freedom of expression, as stated by the Courts, is not absolute. The Courts have readily held that a member’s right to freedom of expression does not outweigh the public interest in the code of conduct of a regulatory body. That these codes of conduct serve an important social value has been recognized and has withstood scrutiny in the context of Charter challenges. See Perry, above, at paragraphs 14, 15 and 19-21; Ahrens, above, at paragraphs 18, 19, 22 and 23; Histed, above, at paragraphs 40, 46, 54, 55, 60-63 and 67-79.
Procedural Fairness Was Observed
[42] The Respondent asserts that, at the investigative stage, particulars of the complaint are not required; notice of the nature of the complaint suffices. See Kutsogiannis v Association of Regina Realtors Inc. (1989), 79 Sask R 214, [1989] SJ No 439 (QL) (QB) at page 8; Strauts v College of Physicians and Surgeons of British Columbia (1997), 36 BCLR (3d) 106, [1997] BCJ No 1518 (QL) (CA) at paragraphs 13-16.
[43] Nevertheless, all people listed as board members on the CAPIC website, including the Applicants, were provided particulars of the allegations made against them via a Notice of Complaint and Investigation. This notice cited Rules 16.5 and 16.6 as well as the specific parts of the Letter that offended those rules. The board members were reminded that, during the investigation, they were bound by the CSIC Rules to provide requested documentation, to reply to inquiries promptly and to cooperate with the investigator.
[44] The Respondent contends that the Applicants were provided sufficient notice of the complaint. In matters of professional discipline, the duty of procedural fairness is limited, particularly at the investigative stage, due to the important role that professional bodies play in protecting the public interest. See Butterworth v College of Veterinarians of Ontario, [2002] OJ No 1136 (QL) (Div Ct) at paragraph 2; Silverthorne v Ontario College of Social Workers and Social Service Workers (2006), 264 DLR (4th) 175, [2006] OJ No 207 (QL) (Div Ct) at paragraphs 15-18; Strauts, above, at paragraphs 6 and 7.
[45] The Applicants also argue that they were not afforded an opportunity to respond to the complaint and investigation. The Respondent contends that, in the case of administrative bodies, such as CSIC, procedural perfection is not imposed. See Knight v Indian Head School Division No 19 (1990), 69 DLR (4th) 489, [1990] SCJ No 26 (QL) at paragraph 49. Considerable deference is owed a decision-maker that has the authority under statute to choose its own procedures. See Baker v Canada (Minister of Citizenship and Immigration) (1999), [1999] 2 SCR 817, [1999] SCJ No 39 at paragraph 27. Nonetheless, the Applicants were invited to put their case forward, to submit evidence and to respond to the investigator’s inquiries. The Applicants requested multiple extensions of time, which were granted. Contrary to the Applicants’ claims, CSIC observed its duty of procedural fairness.
[46] With respect to sufficiency of reasons, the Respondent points out that the Administrative Discipline Order clearly states that Mr. Mooney was the author of the Letter and that measures were being taken against him for disseminating misleading and inaccurate information about CSIC and for undermining CSIC’s mandate and its governing principles. Similarly, the Letters of Warning clearly state that disciplinary measures were being taken against Ms. Williams and Mr. Damitz for withholding and concealing information during the course of an investigation. The Supreme Court of Canada held in R v REM, 2008 SCC 51 at paragraphs 17 and 25, that reasons are sufficient when they inform the individuals whose rights, privileges or interests are affected why the decision was made and when they permit effective judicial review. In this case, that threshold was met. CSIC was not obliged to set out every finding leading up to the decisions. See REM, above, at paragraph 35.
Allegations of Reasonable Apprehension of Bias Are Without Merit
[47] The Respondent submits that the allegation of reasonable apprehension of bias is without merit. The party alleging bias must demonstrate that there is a real likelihood that bias exists; mere suspicion is insufficient. See Zündel v Citron (2000), [2000] 4 FC 225, [2000] FCJ No 679 (QL) (CA) at paragraph 36.
[48] The Respondent argues that CSIC’s Complaints and Discipline Department is independent of all other departments. The Manager’s performance of “overlapping functions,” by both initiating an investigation and imposing a remedy, will not generally raise a reasonable apprehension of bias. See Brosseau v Alberta (Securities Commission) (1989), 57 DLR (4th) 458 at 464, [1989] SCJ No 15.
[49] With respect to the investigation, Mr. Briand is an investigator with 29 years of experience. He joined CSIC less than a month before he began his investigation. Investigators in a professional complaint situation are entitled to be suspicious and must be given latitude. See College of Physicians and Surgeons of the Province of Alberta v JH, 2008 ABQB 205 at paragraphs 81, 116, 124 and 127.
[50] That the investigation took 17 months to complete is largely due to the actions of the Applicants, who submitted incomplete and inconsistent evidence, who requested and were granted extended periods of time to respond to requests for documentation and information and who underwent changes in counsel. The Respondent relies on Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at paragraphs 101-04 to argue that, in any event, delay in an investigation results in unfairness only if it impairs a person’s ability to respond to the complaint. That did not happen in this case.
[51] Contrary to the Applicants’ assertions, the Administrative Discipline Order does not preclude Mr. Mooney from practising in Quebec, as he remains a CSIC member in good standing. Furthermore, the disciplinary measures were not undertaken to prevent Mr. Mooney and Mr. Damitz from running for the 2010 CSIC election. Mr. Mooney, because he was previously disciplined in 2008, was already disqualified from running. Mr. Damitz was issued a Letter of Warning because he refused to cooperate fully with the investigation. Had he been cooperative, the complaint against him would have been dismissed, as it was dismissed against the other CAPIC board members.
The Decisions Were Reasonable
[52] The Respondent asserts that the Decisions fall within the acceptable range as set out in Dunsmuir, above. CSIC’s Manager of Complaints and Discipline found that the Letter in question: contained comments about CSIC and its rules, structure and modus operandi; discredited CSIC and the profession; undermined CSIC’s independence, integrity and effectiveness as well as its mandate and governing principles; and widely disseminated to the public at large inaccurate statements about CSIC and its role as regulator. Mr. Mooney’s involvement in drafting and publishing the Letter contravened Rules 16.5 and 16.6 of the Rules of Professional Conduct, which warranted disciplinary measures. Similarly, the conduct of Ms. Williams and Mr. Damitz, in withholding and concealing information during the investigation into the publication of the Letter, contravened section 2.6 of the Complaints and Discipline Policy. For that reason, they deserved Letters of Warning.
Applicants’ Reply
[53] The Applicants submit that the Respondent has misstated and mischaracterized the nature of their Charter challenge. This challenge is directed at CSIC’s decision to discipline Mr. Mooney for exercising his right to free expression, which is constitutionally protected, and not at the constitutionality of Rules 16.5 and 16.6 themselves. As a result, the Respondent introduces irrelevant evidence regarding the similarity of Rules 16.5 and 16.6 to provisions in the ethical codes of other regulatory bodies.
[54] The Saskatchewan Court of Appeal in Whatcott v Saskatchewan Assn. of Licensed Practical Nurses, 2008 SKCA 6 at paragraphs 31, 32, 36, 43 and 56, provides the correct analytical framework for deciding this issue. I paraphrase the Applicants’ summary as follows:
(a) An administrative tribunal’s decision can be challenged on the basis that the decision itself has infringed Charter rights;
(b) An administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order that infringes the Charter;
(c) In analyzing whether a decision infringes the Charter, the administrative law standard of review is irrelevant. The applicable standard is correctness. The issue is the effect of the decision on the constitutional guarantee of freedom of expression;
(d) Where the constitutionality of a decision is at issue, a constitutional analysis must be undertaken;
(e) Where section 2(b) of the Charter is concerned, the Court must first determine whether section 2(b) has been infringed. The two-part test is set out in Irwin Toy v Québec (Attorney General) (1989), [1989] 1 SCR 927, [1989] SCJ No 36: First, is the activity protected as free expression? Second, does the impugned decision infringe that protected activity in purpose or effect?;
(f) If section 2(b) has been infringed, the Court must consider whether the decision can be saved by section 1 of the Charter. Under section 1, the decision-maker has the burden of satisfying the Court, based on cogent evidence, that the infringement can be justified “in a free and democratic society.”
[55] The Applicants rely on Whatcott, above, at paragraphs 56-79, to argue that the Decisions violate Mr. Mooney’s freedom of expression. The onus is on CSIC to provide evidence that the infringement is justified, but it has not done so.
[56] The Applicants also allege that aspects of the Respondent’s evidence are self-serving and unsubstantiated. First, Mr. Mooney denies the allegation that information contained in the Letter is incorrect. The Respondent has not furnished evidence to prove otherwise. Second, the Responde