Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System)

Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System)
Collection
Supreme Court Judgments
Date
1997-09-26
Report
[1997] 3 SCR 440
Case number
25810
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
SCC Case Information: 25810
Decision Content
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440
The Canadian Red Cross Society, George Weber,
Dr. Roger A. Perrault, Dr. Martin G. Davey,
Dr. Terry Stout, Dr. Joseph Ernest Côme Rousseau,
Dr. Noel Adams Buskard, Dr. Raymond M. Guevin,
Dr. John Sinclair MacKay, Dr. Max Gorelick,
Dr. Roslyn Herst and Dr. Andrew Kaegi and Bayer Inc.
and Baxter Corporation Appellants
v.
The Honourable Horace Krever,
Commissioner of the Inquiry on the Blood System in Canada Respondent
and
The Canadian Hemophilia Society,
the Canadian Aids Society, Canadian
Hemophiliacs Infected with HIV,
T‑COR, the HIV‑T Group (Blood Transfused),
the Toronto and Central Ontario Regional
Hemophilia Society, the Hepatitis C Survivors’ Society,
the Hepatitis C Group of Transfusion Recipients
& Hemophiliacs and Janet Conners
(Infected Spouses & Children) Association Interveners
Indexed as: Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System)
File No.: 25810.
1997: June 25; 1997: September 26.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Administrative law ‑‑ Judicial review ‑‑ Public inquiry ‑‑ Jurisdiction ‑‑ Notices of possible findings of misconduct ‑‑ Whether Commission had jurisdiction to make findings of misconduct ‑‑ Inquiries Act, R.S.C., 1985, c. I‑11, ss. 2 , 6 , 12 , 13 .
Public inquiries ‑‑ Jurisdiction ‑‑ Notices of potential findings of misconduct ‑‑ Whether notices unfair.
The Commission of Inquiry appointed to examine the blood system after thousands contracted HIV and Hepatitis C from blood and blood products held exhaustive hearings governed by rules of procedure agreed to by all parties. Twenty‑five interested parties were granted standing. The Baxter Corporation did not seek standing but subsequently participated in the proceedings by supplying relevant documents and providing witnesses. The Commission, on the final day of scheduled hearings, sent out confidential notices that the Commission might reach certain conclusions based on the evidence before it, that these conclusions might amount to misconduct with the meaning of s. 13 of the Inquiries Act (setting out jurisdiction to make findings of misconduct), and that the recipients had the right to respond as to whether the Commissioner ought to reach these conclusions. A number of the recipients of notices brought applications for judicial review in the Federal Court, Trial Division. That court declared that no findings of misconduct could be made against 47 of the applicants for judicial review, but otherwise dismissed the applications. Many recipients whose notices were not quashed appealed. The Federal Court of Appeal quashed one notice but dismissed the remaining appeals. At issue here are: (1) whether the Commissioner exceeded his jurisdiction by the nature and extent of the allegations of misconduct set out in the notices; (2) if the Commissioner originally had such jurisdiction, did he lose it by failing to provide adequate procedural protections or by the timing of the release of the notices; (3) whether Commission counsel should be prohibited from taking part in the drafting of the final report because of their receipt of confidential information not disclosed to the Commissioner or the other parties; and, (4) whether the appellant Baxter Corporation should be treated differently from the other appellants.
Held: The appeal should be dismissed.
Several basic principles are applicable to inquiries. A commission of inquiry is not a court or tribunal and has no authority to determine legal liability; it does not necessarily follow the same laws of evidence or procedure that a court or tribunal would observe. A commissioner accordingly should endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability for the public perception may be that specific findings of criminal or civil liability have been made. A commissioner has the power to make all relevant findings of fact necessary to explain or support the recommendations, even if these findings reflect adversely upon individuals. Further, a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference. In addition, a commissioner may make a finding that there has been a failure to comply with a certain standard of conduct, so long as it is clear that the standard is not a legally binding one such that the finding amounts to a conclusion of law pertaining to criminal or civil liability. Finally, a commissioner must ensure that there is procedural fairness in the conduct of the inquiry.
Notices warning of potential findings of misconduct, if issued in confidence to the recipient, should not be subject to as strict scrutiny as the formal findings because their purpose is to allow parties to prepare for or respond to any possible findings of misconduct. The more detail included in the notice, the greater the assistance to the party. The only possible harm would be to a party’s reputation and this could not be an issue if the notices are released only to the party against whom the finding may be made. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, it must be assumed that commissioners will not exceed their jurisdiction. The final report may demonstrate the assumption to be erroneous.
The Commissioner here stated that he would not be making findings of civil or criminal responsibility and, in the interests of fairness to the parties and witnesses, must be bound by these statements. It was not necessary, therefore, to deal with the ultimate scope of the findings that a commissioner might make in a report.
The Commissioner did not exceed his jurisdiction in the notices delivered to the appellants. The inquiry’s mandate was extremely broad and the potential findings of misconduct covered areas that were within the Commissioner’s mandate to investigate. The appellants’ challenge was launched prematurely. As a general rule, such a challenge should not be brought before the publication of the report unless there are reasonable grounds to believe that the Commissioner is likely to exceed his or her jurisdiction. Further consideration of this issue might have been warranted if the Commissioner’s report had made findings worded in the same manner as the notices. Even if the challenges were not premature, the notices would not be objectionable. While many of the notices come close to alleging all the necessary elements of civil liability, none appeared to exceed the Commissioner’s jurisdiction. The use of the words “failure” and “responsible” in the notices does not mean, absent something more indicating legal responsibility, that the person breached a criminal or civil standard of conduct. The use of these words was not objectionable.
The procedural protections offered to parties to the Inquiry and to individual witnesses were extensive and eminently fair. The appellants could not have been misled or suffered prejudice as a result of any “misunderstanding” about the type of findings which would be made by the Commissioner.
Although the notices of potential findings of misconduct should be given as soon as it is feasible, it is unreasonable to insist that the notice of misconduct must always be given early. So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure. The timing of notices will always depend upon the circumstances. Here, it was within the discretion of the Commissioner to issue notices when he did because, given the enormous amount of information gathered and the nature and purposes of this Inquiry, it was impossible to give adequate detail in the notices before all the evidence had been heard. The appellants were given an adequate opportunity to respond to the notices, and to adduce additional evidence, if they deemed it necessary.
It was premature to forbid Commission counsel from taking part in the drafting of the report. The Commissioner did not indicate that he intended to rely upon his counsel to draft the final report. In addition, it is not clear from the record what was contained in the confidential submissions reviewed by counsel.
Baxter Corporation should not be treated any differently than the other appellants. Although it must have realized that its conduct would be under scrutiny in the proceedings it took a calculated risk and elected not to seek standing before the Commission. It should not now be allowed to escape the consequences of that decision.
Cases Cited
Distinguished: Re Nelles and Grange (1984), 46 O.R. (2d) 210; Starr v. Houlden, [1990] 1 S.C.R. 1366; considered: O’Hara v. British Columbia, [1987] 2 S.C.R. 591; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; Beno v. Canada (Commissioner and Chairperson,Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 5 .
Canadian Charter of Rights and Freedoms, ss. 7 , 13 .
Inquiries Act, R.S.C., 1985, c. I‑11, ss. 2 , 6 , 12 , 13 .
Authors Cited
Canada. House of Commons. Third Session of the Thirty-fourth Parliament, 1991-92-93. Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Sub-Committee on Health Issues. Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Tragedy and Challenge: Canada’s Blood System and HIV. (Wilbee Report, May 1993.) Ottawa: 1993.
Concise Oxford Dictionary of Current English, 8th ed. Oxford: Clarendon Press, 1990, “misconduct”.
APPEAL from a judgment of the Federal Court of Appeal, [1997] F.C.J. No 17 (QL), dismissing an appeal from a judgment of the Richard J., [1996] 3 F.C. 259, 115 F.T.R. 81, 136 D.L.R. (4th) 449, 37 Admin. L.R. (2d) 260, [1996] F.C.J. No. 864. Appeal dismissed.
Earl A. Cherniak, Q.C., Kirk F. Stevens, Maureen B. Currie and Christopher I. Morrison, for the appellants the Canadian Red Cross Society, George Weber, Dr. Roger A. Perrault, Dr. Martin G. Davey, Dr. Terry Stout, Dr. Joseph Ernest Côme Rousseau, Dr. Noel Adams Buskard, Dr. Raymond M. Guevin, Dr. John Sinclair MacKay, Dr. Max Gorelick, Dr. Roslyn Herst and Dr. Andrew Kaegi.
Randal T. Hughes, Christopher D. Woodbury and Tracey N. Patel, for the appellant Bayer Inc.
Philip Spencer, Q.C., and Tim Farrell, for the appellant Baxter Corporation.
P. S. A. Lamek, Q.C., Angus T. McKinnon and Michele J. Lawford, for the respondent.
Bonnie A. Tough and Kathryn Podrebarac, for the intervener the Canadian Hemophilia Society.
R. Douglas Elliott and Patricia A. LeFebour, for the intervener the Canadian Aids Society.
William A. Selnes, for the intervener Canadian Hemophiliacs Infected with HIV, T‑COR.
Allan D. J. Dick, for the intervener the HIV‑T Group (Blood Transfused).
David Harvey, for the intervener the Toronto and Central Ontario Regional Hemophilia Society.
Philip S. Tinkler, for the intervener the Hepatitis C Survivors’ Society.
Pierre R. Lavigne, for the intervener the Hepatitis C Group of Transfusion Recipients & Hemophiliacs.
Dawna J. Ring, for the intervener Janet Conners (Infected Spouses & Children) Association.
//Cory J.//
The judgment of the Court was delivered by
1 Cory J. -- What limits, if any, should be imposed upon the findings of a commission of inquiry? Can a commission make findings which may indicate that there was conduct on the part of corporations or individuals which could amount to criminal culpability or civil liability? Should different limitations apply to notices warning of potential findings of misconduct? It is questions like these which must be considered on this appeal.
Factual Background
2 More than 1,000 Canadians became directly infected with Human Immunodeficiency Virus (HIV) from blood and blood products in the early 1980s. Approximately 12,000 Canadians became infected with Hepatitis C from blood and blood products during the same time period. This tragedy prompted the federal, provincial and territorial ministers of health to agree in September of 1993 to convene an inquiry which would examine the blood system.
3 On October 4, 1993, pursuant to Part I of the Inquiries Act, R.S.C., 1985, c. I‑11 (the Act ), the Government of Canada appointed Krever J.A. of the Ontario Court of Appeal (the Commissioner) to review and report on the blood system in Canada. Specifically, the Order in Council directed the Commission to:
. . . review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry,
· the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;
· the roles, views, and ideas of relevant interest groups; and
· the structures and experiences of other countries, especially those with comparable federal systems.
On November 3, 1993, an announcement of the Commissioner’s appointment and a description of his mandate was published in newspapers across Canada. Subsequently, all those with an interest were provided with an opportunity to apply for standing before the Inquiry and for funding. Twenty‑five interested parties were granted standing, including the appellants, The Canadian Red Cross Society and Bayer Inc., the federal government and each of the provincial governments except for Quebec. The appellant Baxter Corporation chose not to seek standing, but subsequently participated in the proceedings by supplying relevant documents and providing witnesses.
4 The Order in Council authorized the Commissioner to “adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry”. In consultation with the parties, the Commissioner adopted rules of procedure and practice. The rules, which were agreed to by all parties, provided that in the ordinary course, Commission counsel would question witnesses first, although other counsel could apply to be the first to question any particular witness. The rules included these procedural protections:
all parties with standing and all witnesses appearing before the Inquiry had the right to counsel, both at the Inquiry and during their pre‑testimony interviews;
each party had the right to have its counsel cross‑examine any witness who testified and counsel for a witness who did not have standing was afforded the right to examine that witness;
all parties had the right to apply to the Commissioner to have any witness called whom Commission counsel had elected not to call;
all parties had the right to receive copies of all documents entered into evidence and the right to introduce their own documentary evidence;
all hearings would be held in public unless application was made to preserve the confidentiality of information; and
although evidence could be received by the Commissioner that might not be admissible in a court of law, the Commissioner would be mindful of the dangers of such evidence and, in particular, its possible effect on reputation.
5 The Commission held public hearings throughout Canada between November 1993 and December 1995. In describing his mandate and intention, the Commissioner emphasized that the Inquiry “is not and it will not be a witch hunt. It is not concerned with criminal or civil liability”. He said the reason the Inquiry was called was not to advance the interests of those involved with or contemplating litigation of any kind, and that he would not permit the hearings to be used for ulterior purposes. At the same time, he made it clear that he interpreted his mandate as including a fact‑finding process focusing upon the events of the early 1980s and that he intended to “get to the bottom” of those events. “For those purposes it is essential to determine what caused or contributed to the contamination of the blood system in Canada in the early 1980's”, he warned.
6 On October 26, 1995, Commission counsel delivered a memorandum to all parties inviting them to inform the Commission of the findings of misconduct they felt should be made by the Commission. The memorandum explained that under s. 13 of the Act , the Commissioner is required to give notice to any person against whom he intends to make findings of misconduct. The parties’ submissions would help ensure that the notices gave warning of all the possible findings of misconduct which might be made by the Commission. These confidential submissions would be read only by Commission counsel, and would be considered for inclusion in notices issued by the Commissioner. Only those possible findings which were supported by evidence adduced in the public hearings and which were anticipated to be within the scope of the Commissioner’s final report were included in the notices.
7 On December 21, 1995, the final day of scheduled hearings, 45 confidential notices naming 95 individuals, corporations and governments, each containing between one and 100 allegations, were delivered pursuant to s. 13 of the Act . The notices advised that the Commission might reach certain conclusions based on the evidence before it, that these conclusions may amount to misconduct within the meaning of s. 13 , and that the recipients had the right to respond as to whether the Commissioner ought to reach these conclusions. The recipients were given until January 10, 1996 to announce whether and how they would respond to the notices in their final submissions.
8 A number of the recipients of notices brought applications for judicial review in the Federal Court. On June 27, 1996, Richard J. ([1996] 3 F.C. 259) declared that no findings of misconduct could be made against 47 of the applicants for judicial review, but otherwise dismissed the applications. Many recipients whose notices were not quashed appealed. The Federal Court of Appeal, [1997] F.C.J. No. 17 (QL), quashed the notice against Dr. Craig Anhorn, but dismissed the remaining appeals.
Relevant Statutory Provisions
9 Inquiries Act, R.S.C., 1985, c. I‑11
2. The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.
. . .
12. The commissioners may allow any person whose conduct is being investigated under this Act , and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.
13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
Decisions Below
Federal Court, Trial Division, [1996] 3 F.C. 259
10 The appellants made four principal arguments before Richard J. of the Federal Court, Trial Division. They argued that the notices contained conclusions of law in relation to their civil or criminal liability and that the Commissioner did not have the power to make such conclusions. Alternatively, if the Commissioner did have the power to make the conclusions set out in the notices, they submitted that he was precluded from exercising it because he had given assurances that he would not do so, and without these assurances the parties would never have agreed to the procedure for the conduct of the inquiry. Third, they said that delivering the notices at the very end of the proceedings violated the rules of procedural fairness. Finally, the Red Cross contended that Commission counsel should not participate in the preparation of the final report because they had assisted in preparing the notices and had thereby taken a position against the appellants, and because they had seen confidential submissions that were not brought to the attention of all the parties and persons concerned.
11 Richard J. noted that s. 13 of the Act clearly contemplates that an inquiry’s investigation may lead to a finding of misconduct against a person. This, he stated, covers any conduct, regardless of whether or not it exposes that person to civil or criminal liability. In his view, the finding of facts, and in particular facts that reveal what went wrong or why a disaster occurred, can be an essential precondition to the making of useful, reliable recommendations as to how to avoid a repetition of the events under review. He noted that the Supreme Court of Canada has upheld many inquiries where the focus of the investigation was to uncover facts related to misconduct, including inquiries focused specifically on whether there was misconduct on the part of particular individuals. In none of these cases, he continued, did the Court question the jurisdiction of the inquiry to make findings of fact showing misconduct.
12 Richard J. found that the Inquiry had both an investigatory and an advisory role. In order to fulfil this role, the Commissioner had a wide discretion to determine the Inquiry’s agenda and the procedures under which it would operate. He rejected the appellants’ argument that they had a legitimate expectation, based on assurances given by the Commissioner during the hearings, that he would not make factual findings that could be interpreted as amounting to findings of legal liability. He held that the legitimate expectation doctrine was limited to procedural rights. In his view, it could not be used to alter the substantive jurisdiction of the Commission.
13 Richard J. found that the appellants had failed to show that they would be prejudiced by future criminal or civil trials. They were protected, in his view, by the limits on the use of their testimony in criminal proceedings provided by ss. 7 and 13 of the Canadian Charter of Rights and Freedoms and by s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C‑5 . He further noted that he had not been referred to any legal authority for the proposition that the findings of the Commissioner, much less the contents of the notices, would be admissible in evidence in subsequent civil proceedings. In any case, he said, the trial judge will be better placed to determine whether the evidence in the report should be admitted into evidence and if so, what weight should be accorded to it.
14 Richard J. held that the challenges to potential findings of misconduct were, at this stage, purely speculative. The Commissioner had undertaken not to make any findings of civil or criminal liability, and all persons receiving notices are allowed full opportunity to argue against adoption of the allegations. He held that the Commissioner had not exceeded his mandate by conducting an investigation of the commission of particular crimes. He concluded that when released, the findings of the Commissioner might be set aside on the basis that they exceeded the mandate of the Commission. Here, he stated, all that was before him was the administrative decision to give statutory notice to affected parties.
15 With respect to the procedure adopted by the Commissioner, Richard J. found that s. 7 of the Charter did not apply to protect reputation, and even if it did, the issuance of the notices accorded with the principles of fundamental justice. The procedural safeguards recommended under the Act had been provided to the appellants. He rejected the appellants’ complaints regarding the evidence accepted by the Commission, the confidential submissions, the timing of the notices, the fairness of the hearings and the conduct of Commission counsel.
16 Richard J. declared that no explicit findings of misconduct could be made against 47 of the persons who received notices. Counsel for the Commissioner had confirmed that these persons would not be named in any adverse findings of fact resulting from the notices. He dismissed the remaining applications for judicial review. He further declared that all of the appellants were to be allowed to respond to the notices.
Federal Court of Appeal, [1997] F.C.J. No. 17 (QL)
17 Décary J.A., writing for the court, found that the challenge to the Commissioner’s jurisdiction was not premature. In his view, the fact that the Commissioner had not yet prepared his final report was not significant. If the Commissioner did not have jurisdiction to make the findings in his final report which were being suggested in the notices, he would also be without jurisdiction to give notice that such findings might be made. Décary J.A. emphasized, however, that courts must show extreme restraint before intervening at this stage in order to avoid disrupting the work of inquiries. The courts should only intervene, he concluded, when it is clear that the Commissioner is about to exceed his jurisdiction.
18 Décary J.A. went on to examine whether the Commissioner had the authority to make the findings contained within the notices. He noted that public inquiries into tragedies inevitably tarnish reputations and raise questions about the responsibility borne by certain individuals. Consequently, Parliament and the courts have imposed strict limits on the use of these findings in civil and criminal trials. The findings made by a commissioner, moreover, are merely statements of the commissioner’s opinion with respect to the conduct of a person. Such an opinion does not have the weight, force or effect of a judgment.
19 Décary J.A. noted that s. 13 of the Act expressly permits a commissioner to make findings of “misconduct”. He concluded that this encompasses the power of a commissioner to find that an individual breached a standard of conduct. Since that standard may be moral, legal, scientific, social or political, a conclusion that someone breached a duty does not necessarily mean that the individual in question broke the law. It simply means that the individual failed to meet a standard proposed by the commissioner. To hold otherwise would completely muzzle public inquiries and would be inconsistent with s. 13 .
20 Décary J.A. left open the question of whether a Commissioner could ever make a finding of civil or criminal liability, but found that in this particular case the Commissioner was precluded from doing so both by his own assurances that he would not and because of an absence of authority within the terms of the Order in Council appointing the Inquiry. The question, therefore, became whether the notices sent to the appellants contained findings or threatened findings of civil or criminal liability.
21 In Re Nelles and Grange (1984), 46 O.R. (2d) 210 (C.A.), the test adopted for this question was whether the findings would have the weight of a decision or determination of civil or criminal liability in the eyes of the public. This case was cited with approval by this Court in Starr v. Houlden, [1990] 1 S.C.R. 1366, at p. 1398. However, Décary J.A. said that approach should be restricted to inquiries into the commission of particular crimes. First, he said, the strict test would paralyse the work of most broad inquiries such as this one. In addition, he observed that the test is inconsistent with the approach taken by this Court in other cases, such as O’Hara v. British Columbia, [1987] 2 S.C.R. 591, at p. 596, and Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97. Although none of these decisions examined the actual findings made by a commissioner, he concluded that the Supreme Court would not have authorized inquiries leading inevitably to findings of fact that would determine responsibility in the eyes of the public if those findings were prohibited.
22 Décary J.A. noted that the Commissioner cannot make findings of civil or criminal liability, and he cannot escape this prohibition simply by using language that is less precise but essentially suggests the same thing. The more a commissioner uses terms with “hallowed legal meaning” (at para. 55), the more likely it is that a court will find the conclusions to be determinations of legal responsibility.
23 Décary J.A. then applied this approach to the notices in this case. He acknowledged that the choice of certain expressions, such as “responsible for” and “despite knowing” indicated potential findings of legal liability, but he was not prepared to quash the notices on that basis alone. However, he went on to state at para. 69:
I am certain that the Commissioner will understand that he would be venturing onto dangerous ground if, in his final report, he were to persist in using some of the terms he used in the notices and in adopting turns of phrase that bear too close a resemblance to the expression of a conclusion of law.
Subject to this caveat, he held that the Commissioner had the power to issue the notices and rejected the appellants’ first argument.
24 Décary J.A. rejected the claim that the late delivery of the notices had violated rules of procedural fairness. He noted that the Commissioner had broad latitude and discretion in determining the Inquiry’s procedures, and that those adopted were in accordance with procedural fairness. He said he could see no objection to a commissioner’s waiting until the end of the hearings to give notices. The appellants were given the opportunity to respond to the notices and to adduce additional evidence in a short but flexible time period, which they chose to ignore.
25 Décary J.A. then reviewed the situation of two appellants who were not parties to the inquiry, and were, therefore, unrepresented there; Baxter Corporation, and Craig A. Anhorn, a former employee of the Red Cross. They both claimed that since they were not parties they should have received their notices earlier, and the notices should have set out the evidence which was relied upon for the allegations of misconduct. Décary J.A. rejected Baxter Corporation’s claim, holding that the company knew that it would be a likely subject of investigation and had deliberately chosen not to seek standing at the inquiry. Having taken this calculated risk, he stated, it must now bear the consequences. On the other hand, in light of the unique position of Craig Anhorn, he found that it was appropriate to quash the notices issued to him.
26 Finally, Décary J.A. turned to the submission that Commission counsel should be prohibited from participating in the final report because they had reviewed confidential documents which had not been disclosed to the other parties or the respondent. He seemed sympathetic to the appellants’ claim, but held that it was premature, since the Commissioner had not stated any intention to rely on Commission counsel in the drafting of the final report. Décary J.A. cautioned that he did not think the Commissioner should seek advice from those of his counsel who knew of matters which he and the appellants did not.
27 Accordingly, he allowed the cross-appeal by Craig Anhorn, but dismissed all other appeals.
Issues
28 1. Did the Commissioner exceed his jurisdiction by the nature and extent of the allegations of misconduct set out in the notices?
2. If the Commissioner originally had such jurisdiction, did he lose it by failing to provide adequate procedural protections or by the timing of the release of the notices?
3. Should Commission counsel be prohibited from taking part in the drafting of the final report because of their receipt of confidential information not disclosed to the Commissioner or the other parties?
4. Should the appellant Baxter Corporation be treated differently from the other appellants?
Analysis
Did the Commissioner Exceed his Jurisdiction by the Nature and Extent of the Allegations of Misconduct Set Out in the Notices?
A. Introduction ‑- Commissions of Inquiry
29 Commissions of inquiry have a long history in Canada, and have become a significant and useful part of our tradition. They have frequently played a key role in the investigation of tragedies and made a great many helpful recommendations aimed at rectifying dangerous situations.
30 It may be of assistance to set out what was said regarding the history and role of commissions of inquiry in Phillips, supra, at pp. 137‑38:
As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
At least three major studies on the topic have stressed the utility of public inquiries and recommended their retention: Law Reform Commission of Canada, Working Paper 17, Administrative Law: Commissions of Inquiry (1977); Ontario Law Reform Commission, Report on Public Inquiries (1992); and Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992). They have identified many benefits flowing from commissions of inquiry. Although the particular advantages of any given inquiry will depend upon the circumstances in which it is created and the powers it is given, it may be helpful to review some of the most common functions of commissions of inquiry.
One of the primary functions of public inquiries is fact‑finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide‑ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long‑term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
Undoubtedly, the ability of an inquiry to investigate, educate and inform Canadians benefits our society. A public inquiry before an impartial and independent commissioner which investigates the cause of tragedy and makes recommendations for change can help to prevent a recurrence of such tragedies in the future, and to restore public confidence in the industry or process being reviewed.
31 The inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for the careful balancing was recognized by Décary J.A. when he stated at para. 32 “[t]he search for truth does not excuse the violation of the rights of the individuals being investigated”. This means that no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.
The Background of This Inquiry
32 The circumstances which gave rise to this Inquiry cannot be forgotten. The factual background underlines the importance of the Commission and places the hearings in their proper context. More than 1,000 Canadians became directly infected with HIV from blood and blood products in the early 1980s, and approximately 12,000 more were infected with and exposed to the dangers of Hepatitis C. These infections were caused by the very system Canadians rely upon to restore their health in times of illness or accident. It is a system which operates throughout the country. The Wilbee Report (Report of the Sub‑Committee on Health Issues of the Standing Committee of the House of Commons on Health and Welfare, Social Affairs, Seniors and Status of Women, Tragedy and Challenge: Canada’s Blood System and HIV (May 13, 1993)), a 1993 parliamentary study of the blood system, observed that every 20 seconds of every single day someone in Canada requires a blood transfusion. A great many Canadian families are touched in some way by the urgent and continuous need for blood and blood products. Clearly, the blood system is an essential part of Canada’s health care system. The answers to questions as to how and why this vitally important system failed Canadians are crucial both to ensuring that this terrible tragedy never recurs and to restoring public confidence in our system of health care.
33 It is against that background that the assessment must be made of the jurisdiction of the Commissioner to issue notices indicating potential findings of misconduct against the appellants.
B. The Scope of a Commissioner’s Power to Make Findings of Misconduct
34 A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter. The nature of an inquiry and its limited consequences were correctly set out in Beno v. Canada (Commissioner and Chairperson,Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527, at para. 23:
A public inquiry is not equivalent to a civil or criminal trial. . . . In a trial, the judge sits as an adjudicator, and it is the responsibility of the parties alone to present the evidence. In an inquiry, the commissioners are endowed with wide‑ranging investigative powers to fulfil their investigative mandate. . . . The rules of evidence and procedure are therefore considerably less strict for an inquiry than for a court. Judges determine rights as between parties; the Commission can only “inquire” and “report”. . . . Judges may impose monetary or penal sanctions; the onl