Sam Lévy & Associés Inc. v. Mayrand

Sam Lévy & Associés Inc. v. Mayrand
Court (s) Database
Federal Court Decisions
Date
2005-05-16
Neutral citation
2005 FC 702
File numbers
T-547-04, T-75-04
Notes
Reported Decision
Decision Content
Date: 20050516
Citation: 2005 FC 702
Docket: T-75-04
OTTAWA, ONTARIO, THE 16th DAY OF MAY 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
SAM LÉVY & ASSOCIÉS INC.
and
SAMUEL L. LÉVY, trustee
Applicants
and
MARC MAYRAND
and
ATTORNEY GENERAL OF CANADA
Respondents
and
MICHEL LEDUC
Interested party
Docket: T-547-04
BETWEEN:
JACQUES ROY, trustee
Applicant
and
MARC MAYRAND
and
ATTORNEY GENERAL OF CANADA
Respondents
and
SYLVIE LAPERRIÈRE
Interested party
REASONS FOR ORDER AND ORDER
[1] The applications for judicial review at bar raise the same issues regarding due process, the scope of procedural guarantees and the impartiality and independence of the authority empowered pursuant to the Bankruptcy and Insolvency Act, S.C. 1985, c. B-3 (the Act), to rule on the conduct of bankruptcy trustees.
[2] The applicants hold trustee licences issued under the Act by the Superintendent of Bankruptcy (the Superintendent). They are currently the subject of disciplinary proceedings initiated pursuant to sections 14.01 and 14.02 of the Act (the provisions in question), the application of which could entail the suspension or cancellation of their licences. On this point, the applicants submitted essentially that the provisions in question are contrary to their fundamental right to a fair and equitable hearing before an independent and impartial tribunal. Consequently, the applicants are seeking a judicial declaration that the provisions in question are of no force or effect, as well as a stay of the disciplinary proceedings.
[3] In two interlocutory decisions, rendered by Fred Kaufman (docket T-75-04) and Lawrence Poitras (docket T-547-04), respectively acting as Superintendent's delegates pursuant to subsection 14.01(2) of the Act (the delegates), the applicants' claims were not allowed. The Attorney General of Canada intervened to support the validity of the provisions in question and the merit of the delegates' findings.
[4] I consider that the applications for judicial review at bar should be dismissed. Although my reasons for not granting the remedies sought by the applicants are more elaborate than those given by the delegates, I have reached the same conclusions. In short, the delegates were correct in law and fact to find that the application of the provisions in question was not inconsistent with paragraphs 1(a) and 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, reproduced in R.S.C. 1985, App. III (the Bill), or section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Canadian Charter), this conclusion being implicit in the position initially taken by the applicants before the delegates. Similarly, the delegates made no reviewable error when they found that the other arguments made by the applicants, involving the application of certain procedural guarantees, were premature or without legal foundation.
[5] The background is very important in the case at bar and the applicants' many arguments tended to overlap, being based at times on the right to due process of law and at other times on the right to an impartial hearing. Accordingly, for a better understanding of the answers given to the complex legal questions which were raised in the case at bar, these reasons will follow the following general plan:
I - Provisions in question
II - General regulatory framework
III - Factual background
IV - Whether impugned decisions are reviewable
V - Tribunal's reasoning
VI - Interaction of the Bill and the Canadian Charter
VII - Due process of law
1. Scope
2. Situation before 1960
3. Situation after 1960
4. Substantive rights
5. Procedural rights
6. Independence of decision-makers
VIII - Independent and impartial tribunal
1. Rights and obligations defined by the tribunal
2. Principles of fundamental justice
3. Concepts of independence and impartiality
4. Distinction between administrative and judicial tribunals
5. Test of the reasonable and fully informed person
6. Functions of administrative officials and Bankruptcy Court
7. Operational aspects and practices of tribunal
8. Answers to questions of tribunal's structural bias
9. Answers to questions of decision-makers' independence
IX - Summoning and compelling witnesses
X - Discharge of applicant Roy - Sunliner case
XI - Costs
I - PROVISIONS IN QUESTION
[6] The provisions in question read as follows:
14.01 (1) Where, after making or causing to be made an investigation into the conduct of a trustee, it appears to the Superintendent that
(a) a trustee has not properly performed the duties of a trustee or has been guilty of any improper management of an estate,
(b) a trustee has not fully complied with this Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate, or
(c) it is in the public interest to do so,
the Superintendent may do one or more of the following:
(d) cancel or suspend the licence of the trustee;
(e) place such conditions or limitations on the licence as the Superintendent considers appropriate including a requirement that the trustee successfully take an exam or enrol in a proficiency course, and
(f) require the trustee to make restitution to the estate of such amount of money as the estate has been deprived of as a result of the trustee's conduct.
14.01 (1) Après avoir tenu ou fait tenir une enquête sur la conduite du syndic, le surintendant peut prendre l'une ou plusieurs des mesures énumérées ci-après, soit lorsque le syndic ne remplit pas adéquatement ses fonctions ou a été reconnu coupable de mauvaise administration de l'actif, soit lorsqu'il n'a pas observé la présente loi, les Règles générales, les instructions du surintendant ou toute autre règle de droit relative à la bonne administration de l'actif, soit lorsqu'il est dans l'intérêt public de le faire :
a) annuler ou suspendre la licence du syndic;
b) soumettre sa licence aux conditions ou restrictions qu'il estime indiquées, et notamment l'obligation de se soumettre à des examens et de les réussir ou de suivre des cours de formation;
c) ordonner au syndic de rembourser à l'actif toute somme qui y a été soustraite en raison de sa conduite.
(1.1) This section and section 14.02 apply, in so far as they are applicable, in respect of former trustees, with such modifications as the circumstances require.
(1.1) Dans la mesure où ils sont applicables, le présent article et l'article 14.02 s'appliquent aux anciens syndics avec les adaptations nécessaires.
(2) The Superintendent may delegate by written instrument, on such terms and conditions as are therein specified, any or all of the Superintendent's powers, duties and functions under subsection (1), subsection 13.2(5), (6) or (7) or section 14.02 or 14.03.
(2) Le surintendant peut, par écrit et aux conditions qu'il précise dans cet écrit, déléguer tout ou partie des attributions que lui confèrent respectivement le paragraphe (1), les paragraphes 13.2(5), (6) et (7) et les articles 14.02 et 14.03.
(3) Where the Superintendent delegates in accordance with subsection (2), the Superintendent or the delegate shall
(a) where there is a delegation in relation to trustees generally, give written notice of the delegation to all trustees; and
(b) whether or not paragraph (a) applies, give written notice of the delegation of a power to any trustee who may be affected by the exercise of that power, either before the power is exercised or at the time the power is exercised.
(3) En cas de délégation aux termes du paragraphe (2), le surintendant ou le délégué doit :
a) dans la mesure où la délégation vise les syndics en général, en aviser tous les syndics par écrit;
b) en tout état de cause, aviser par écrit, avant l'exercice du pouvoir qui fait l'objet de la délégation ou lors de son exercice, tout syndic qui pourrait être touché par l'exercice de ce pouvoir.
14.02 (1) Where the Superintendent intends to exercise any of the powers referred to in subsection 14.01(1), the Superintendent shall send the trustee written notice of the powers that the Superintendent intends to exercise and the reasons therefor and afford the trustee a reasonable opportunity for a hearing.
14.02 (1) Lorsqu'il se propose de prendre l'une des mesures visées au paragraphe 14.01(1), le surintendant envoie au syndic un avis écrit et motivé de la mesure qu'il entend prendre et lui donne la possibilité de se faire entendre.
(2) At a hearing referred to in subsection (1), the Superintendent
(a) has the power to administer oaths;
(b) is not bound by any legal or technical rules of evidence in conducting the hearing;
(c) shall deal with the matters set out in the notice of the hearing as informally and expeditiously as the circumstances and a consideration of fairness permit; and
(d) shall cause a summary of any oral evidence to be made in writing.
(2) Lors de l'audition, le surintendant :
a) peut faire prêter serment;
b) n'est lié par aucune règle juridique ou procédurale en matière de preuve;
c) règle les questions exposées dans l'avis d'audition avec célérité et sans formalisme, eu égard aux circonstances et à l'équité;
(3) The notice referred to in subsection (1) and, where applicable, the summary of oral evidence referred to in paragraph (2)(d), together with such documentary evidence as the Superintendent receives in evidence, form the record of the hearing and the record and the hearing are public, unless the Superintendent is satisfied that personal or other matters that may be disclosed are of such a nature that the desirability of avoiding public disclosure of those matters, in the interest of a third party or in the public interest, outweighs the desirability of the access by the public to information about those matters.
(3) L'audition et le dossier de l'audition sont publics à moins que le surintendant ne juge que la nature des révélations possibles sur des questions personnelles ou autres est telle que, en l'espèce, l'intérêt d'un tiers ou l'intérêt public l'emporte sur le droit du public à l'information. Le dossier de l'audition comprend l'avis prévu au paragraphe (1), le résumé de la preuve orale visé à l'alinéa (2)d) et la preuve documentaire reçue par le surintendant.
(4) The decision of the Superintendent after a hearing referred to in subsection (1), together with the reasons therefor, shall be given in writing to the trustee not later than three months after the conclusion of the hearing, and is public.
(4) La décision du surintendant est rendue par écrit, motivée et remise au syndic dans les trois mois suivant la clôture de l'audition, et elle est publique.
(5) A decision of the Superintendent given pursuant to subsection (4) is deemed to be a decision of a federal board, commission or other tribunal that may be reviewed and set aside pursuant to the Federal Courts Act.
(5) La décision du surintendant, rendue et remise conformément au paragraphe (4), est assimilée à celle d'un office fédéral et comme telle est soumise au pouvoir d'examen et d'annulation prévu à la Loi sur les Cours fédérales.
II - GENERAL REGULATORY FRAMEWORK
[7] Samuel S. Lévy and Sam Lévy & Associés Inc. (docket T-75-04) and Jacques Roy (docket T-547-04) (the applicants) carry on their activities as licensed trustees in the province of Quebec in accordance with licences issued by the Superintendent pursuant to the Act.
[8] In their capacity as trustees, the applicants are subject to various obligations regarding the administration of estates, set out in the Act, need not be listed here. To prevent conflicts of interest, sections 13.3 and 13.4 of the Act also prohibit the applicants from acting as trustees in a number of cases. Further, under section 13.5 of the Act, the applicants must comply with the Code of Ethics for Trustees (the Code), which is part of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368 (the General Rules).
[9] The professional activities of trustees are not self-regulated. Thus, in a case where the conduct of a bankruptcy trustee is in question, the disciplinary process does not fall under the provincial law generally applicable to other categories of professionals. In Quebec the Professional Code, R.S.Q., c. C-26 (the Professional Code) applies only to members of a professional order or body recognized by provincial legislation. However, I note that there is a national association, the Canadian Association of Insolvency and Restructuring Professionals (CAIRP).
[10] Accordingly, misconduct by a trustee in the broad sense is penalized through the system of licences covered in the Act. In this regard, misconduct should be taken to mean any infringement or breach of the Act, the General Rules (including the Code), the Superintendent's Directives or any law on the proper administration of any estate (subsection 14.01(1) of the Act).
[11] Accordingly, after making or causing to be made an investigation into the conduct of a trustee, in the cases mentioned in subsection 14.01(1) of the Act, the Superintendent may suspend or cancel the trustee's licence, and place such conditions on the licence as the Superintendent considers appropriate, in addition to requiring the trustee to make restitution to the estate of such amount of money as the estate has been deprived of as a result of the trustee's conduct (paragraphs 14.01(1)(a), (b) and (c) of the Act). However, no action mentioned in subsection 14.01(1) of the Act can be taken without the trustee being afforded a reasonable opportunity for a hearing duly convened for that purpose (subsection 14.02(1) of the Act).
[12] Further, the Superintendent may also delegate his powers of investigation and adjudication to a "delegate" (subsection 14.01(2) of the Act). That being said, throughout these reasons, whenever the Superintendent or his delegate exercises or purports to exercise adjudicative powers conferred on them by the provisions in question, I will use the word [TRANSLATION] "tribunal", even though this term is not used in the Act.
III - FACTUAL BACKGROUND
[13] In 1998, Marc Mayrand, the Superintendent, made a general delegation pursuant to subsection 14.01(2) of the Act to two federal officials in his office, Michel Leduc (docket T-75-04) and Sylvie Laperrière (docket T-547-04), senior analysts (the analysts), of the following powers: that of making an investigation into the conduct of any trustee; that of proposing that one of the measures covered in subsection 14.01(1) be taken; the duty stated in subsection 14.02(1) to send the trustee written notice with reasons of the steps he or she intends to take; and the power set out in subsection 14.03(1) to give certain directions of a conservatory nature.
[14] In 2000, the Deputy Superintendent, Programs, Standards and Regulatory Affairs (the Deputy Superintendent), asked the analysts to carry out a specific investigation into the applicants' conduct.
[15] In the past, official receivers had already made supervisory visits to the offices of the applicants Lévy, and after various complaints had apparently identified [TRANSLATION] "certain breaches of the rules of conduct applicable to them in the course of their duties". That said, in conjunction with the disciplinary investigation initiated by the analyst Leduc in 2000, the Office of the Superintendent of Bankruptcy also conducted a general audit of the administration of the applicants Lévy.
[16] With regard to the applicant Roy, the disciplinary investigation undertaken by the analyst Laperrière was limited to the files in Pierre-André Jacob (Jacob) and Distribution Sunliner (1985) Inc. (Sunliner). The investigation arose out of certain complaints: apparently the complaints indicated [TRANSLATION] "breaches of the Act, the Bankruptcy and Insolvency Rules and the Directives of the Superintendent of Bankruptcy".
[17] With respect to the Sunliner case, the applicant Roy subsequently raises (see infra, section X - Discharge of Applicant Roy - Sunliner case) a supplementary argument which requires further explanation. On March 15, 1994, Sunliner made an assignment of its property to the applicant Roy pursuant to the Act. On November 25, 1996, the applicant Roy sent the official receiver his final statement of receipts and disbursements. After an exchange of information, the official receiver on May 9, 1997, issued a letter containing positive comments. The applicant Roy then took steps to have his final statement taxed by the Superior Court of Quebec, Bankruptcy Division (the Bankruptcy Court). On June 6, 1997, the applicant Roy sent the notice of his application for discharge, and on July 23, 1997, obtained his discharge from the Bankruptcy Court.
[18] In 2001, at the conclusion of their respective investigations, the analysts each submitted to the Superintendent a written analytical report setting out the facts which, in their view, indicated that the applicants had not properly performed their statutory duties in the administration of certain estates (the offences alleged against the applicants). At the same time, the analysts concluded that the offences alleged against the applicants were sufficient grounds for the Superintendent to exercise the powers contained in section 14.01 of the Act. That said, there is no evidence in the record on which the Court could conclude or infer that the Superintendent himself interfered, or might have interfered, in any way in the investigation conducted by the analysts or in the preparation of the reports in question.
[19] There is no doubt of the seriousness of the offences alleged against the applicants here. In this case, for the applicants Lévy, the analyst Leduc in his report of August 31, 2001 (which amounted to nearly 200 pages) set out 118 different offences. The analyst Leduc accordingly recommended the cancellation of their trustee licences and the restitution of certain sums of money to the estate in the bankruptcy files in question. In the case of the trustee Roy, the analyst Laperrière in her amended report (some 50 pages), dated November 2, 2001, set out a number of offences relating to the Jacob and Sunliner files. She accordingly recommended that the applicant Roy's trustee licence be suspended for a period of one month.
[20] When the analysts gave the applicants their reports and recommendations - the reports in question in lieu of the notice provided under subsection 14.02(1) of the Act - the applicants chose to exercise their right to a hearing. Nevertheless, rather than hearing the case himself, in September 2001 the Superintendent decided that it would be best [TRANSLATION] "in the interests of natural justice and to allow [the trustees] to have a hearing as soon as possible" pursuant to subsection 14.01(2) of the Act, to delegate to two outside lawyers, Fred Kaufman (docket T-75-04) and François Rioux (docket T-547-04), the duty to determine whether one or more of the circumstances set out in subsection 14.01(1) of the Act existed and to impose the appropriate penalties on the applicants, if necessary. Following the death of Mr. Rioux, who did not have an opportunity to carry out his mandate, Lawrence Poitras, from the same law firm, was appointed by the Superintendent in September 2003 to replace him.
[21] In the fall of 2003, at the opening of the hearing, by separate motions, but restating in essence the same argument (subject to the supplementary argument of the applicant Roy regarding the effects of his discharge in the Sunliner case), the applicants asked the delegates to declare the provisions at issue of no force or effect and to order a stay of proceedings. In particular, the applicants asked the delegates to find that the provisions in question were inconsistent with paragraphs 1(a) and 2(e) of the Bill and with section 7 of the Canadian Charter, and that in fact their implementation infringed their fundamental rights.
[22] In particular, the applicants argued that the same person cannot carry out the duties of investigator, prosecutor and judge, which subsection 14.01(1) of the Act unlawfully authorizes. Further, although the delegates Kaufman and Poitras did not participate in the investigation or act as prosecutors, in fact the analysts Leduc and Laperrière were appointed by the Superintendent and were also parties to the disciplinary proceedings. In the applicants' view, therefore, the application of subsection 14.01(2) of the Act, authorizing the Superintendent to make such a delegation, raises a reasonable apprehension of bias in structural terms. Further, the conditions for hiring the delegates did not give them sufficient guarantees of judicial independence:
inter alia, they could be relieved of their duties if they did not carry out their obligations properly under their respective contracts. Accordingly, the applicants' right to be tried by an independent and impartial tribunal was infringed in the case at bar.
[23] The applicants further argued before the delegates that the procedure set out in subsection 14.02(2) of the Act is defective, in that it prevents them from submitting a "full answer and defence" to the tribunal. Thus, the provisions in question gave them no protection in procedural terms or as regards evidence: the applicants also objected to the fact that the Act did not give the tribunal the power to summon witnesses. Further, subsection 14.01(1) of the Act authorizes the tribunal to order the applicants to make restitution to "the estate" of any amount of which it has been deprived as a result of their misconduct, which in the applicant's submission may include restitution of the costs of the disciplinary investigation. The applicants accordingly risk being deprived of the enjoyment of property, in this case the licence authorizing them to engage in their profession, through a proceeding which in their submission does not observe due process of law and infringes the rules of fundamental justice (collectively, the applicants' other arguments).
[24] The applicant Roy also made a supplementary argument, based on his prior discharge in the Sunliner case. He maintained that under subsection 41(8) of the Act, there would be immunity (except in cases of fraud) from any disciplinary proceeding in that case.
[25] The applicants' arguments were not accepted by the delegates. The applicants maintained that the impugned decisions were wrong in law, and that in fact, if not in appearance, the tribunal was not independent or impartial from the standpoint of a reasonable and fully informed person.
IV - WHETHER IMPUGNED DECISIONS ARE REVIEWABLE
[26] The existence of reasonable grounds to question the independence or impartiality of a tribunal must be raised without delay (see in inter alia Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584, and the case law mentioned at paragraph 13). In the case at bar, the delegates had full power to decide the points of law and fact raised by the applicants and to order a stay of proceedings, if need be (Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504; Canada (Attorney General) v. Sam Lévy & Associés et al., 2005 FC 171).
[27] That said, the impugned decisions are reviewable by this Court applying the standard of the correct decision (subsection 14.02(5) of the Act and subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Federal Courts Act), as amended; Martin, supra; Canada (Attorney General) v. Sam Lévy & Associés et al., supra).
[28] For the reasons stated below, I find that the delegates made no reviewable error of law or fact. I further believe that the particular reasons they gave were reasonable and generally in accordance with the present state of the law and case law. Consequently, I find that, by refusing to declare the provisions in question of no force or effect and to order a stay of proceedings, the delegates did not refuse to exercise their jurisdiction or act contrary to the Act.
V - TRIBUNAL'S REASONING
[29] The applicability of paragraphs 1(a) and 2(e) of the Bill and section 7 of the Canadian Charter to the facts of the case at bar were not the subject of any particular discussion in the impugned decisions. However, the delegates recognized that the applicants were entitled to a fair hearing before an independent and impartial tribunal. These preliminary questions are addressed in sections VI - Interaction of Bill and Canadian Charter, and VII - Due process of law, as well as in subsection 1- Rights and obligations defined by the tribunal, of section VIII - Independent and impartial tribunal.
[30] That said, the delegates determined that the provisions in question were neutral and that their application did not infringe the fundamental right referred to by the applicants. Essentially, the application of the provisions at issue did not raise a problem here, in the delegates' view, since, in fact, the functions of investigation, prosecution and adjudication were not assumed by the same person. In this regard, the delegates relied essentially on the decision by the Quebec Court of Appeal in 2003 in Métivier v. Mayrand, [2003] R.J.Q. 3035 (C.A.), which dealt with a similar case. The issues of the accumulation of functions and the relevance of Métivier, supra, are considered in subsection 8 - Answers to questions of tribunal's impartiality, of section VIII - Independent and impartial tribunal.
[31] In particular, in his interlocutory decision of December 19, 2003, the delegate Kaufman concluded, inter alia, that [TRANSLATION] "the Superintendent's accumulation of duties is not such as to lead 'a reasonable and fully informed person' to conclude that a trustee will necessarily be deprived of his right to a fair and impartial hearing". However, he acknowledged that [TRANSLATION] "the application of these sections may in fact raise an apprehension of bias", but everything was dependant on the particular circumstances of each case. Accordingly, in his view, it was necessary to undertake a more thorough review of the independence of the decision-maker and consider practice (Métivier, supra).
[32] That said, the delegate Kaufman concluded that the case at bar differed from Laflamme v. Canada (Superintendent of Bankruptcy), [1995] 3 F.C. 174 (F.C.T.D.), relied on by the applicants to demonstrate the fact that the delegate was not independent. In 1993, the delegate then appointed to hear the complaint filed against the trustee Laflamme, Robert Archambault, was recalled before the end of his mandate, with no reason being given by the Minister of Industry, Science and Technology (who at the time had the power now exercised by the Superintendent). The delegate Archambault subsequently lost his action to recover the total amount of the fees mentioned in the contract. The Minister had not undertaken any contractual obligation to the delegate to have a valid reason for recall (Robert Archambault v. Attorney General of Canada, S.C. No. 500-05-006239-949, Roger E. Baker J., August 2, 1996).
[33] However, it is worth noting that the delegate Kaufman wrote: [TRANSLATION] "Although the reasons for which I might be recalled at the end of my contract are perhaps not as specific as one might desire, my contract gives me much more security than that which the Minister signed with the delegate recalled in Laflamme, supra . . . according to the terms of my employment, I can only be relieved of my duties for a valid reason" (emphasis added). I agree with the finding of the delegate Kaufman (see as to this my comments in subsection 9 - Answers to questions of decision-makers' independence, of section VIII - Independent and impartial tribunal).
[34] In his decision dated February 16, 2004, the delegate Poitras essentially used the same reasoning. He referred expressly to clause 5.1 of his employment contract (which was in all respects similar to that of the delegate Kaufman), providing:
[TRANSLATION]
5.1 Her Majesty may notify the contractor in writing that she has cancelled the contract. The delegation of powers, duties and functions regarding supervision of bankruptcy trustees made to the contractor may be revoked in writing by Her Majesty or the Superintendent if they determine that the contractor:
(a) is by reason of infirmity incapable of properly performing his or her obligations under the contract;
(b) has been found guilty of any professional misconduct;
(c) has not properly performed his or her obligations under the contract;
(d) by reason of his or her conduct, or otherwise, is in a position inconsistent with the proper performance of his or her obligations under the contract.
(Emphasis added.)
[35] In this regard, the delegate Poitras saw [TRANSLATION] "nothing in the wording [of clause 5.1 of the employment contract] to foster insecurity or undermine the security of tenure of the delegate, so that a reasonable person would be inclined to conclude that a trustee would necessarily be deprived of his right to a fair and impartial hearing". In the view of the delegate Poitras, [TRANSLATION] "it is most important that the removal of the administrative judge or delegate not be left to the whim of the Executive": that is not the case here, since the delegate can only be recalled for one of the reasons indicated in the aforesaid clause 5.1 of the employment contract. I also agree with the delegate Poitras.
[36] The delegates considered that the applicants' other arguments were premature at this stage. Further, the delegate Poitras indicated that in the absence of legislation authorizing the compellability of witnesses, the Federal Court of Canada had the power to assist federal boards, commissions or other tribunals and, if necessary, to issue a subpoena ordering a person to appear before the tribunal. With respect to the reimbursement of the costs incurred on account of the measures taken by the Superintendent, the delegate Poitras added that, as he interpreted paragraph 14.01(1)(c) of the Act, [TRANSLATION] "reimbursement is not made even indirectly to the Superintendent". I also agree with the reasoning of the delegates Kaufman and Poitras (see infra, section IX - Summoning and compelling witnesses). Moreover, before this Court, counsel for the applicants also objected that the delegates had not considered the applicants' other arguments from the standpoint of due process of law or the rules of fundamental justice. In any case, I have determined below that the provisions at issue are not contrary to the substantive or procedural rights that may be protected by paragraphs 1(a) and 2(e) of the Bill and section 7 of the Canadian Charter (see infra, section VI - Interaction of the Bill and the Charter, and section VII - Due process of law).
[37] The supplementary argument of the trustee Roy is also dismissed. The delegate Poitras considered that the discharge of Roy by the Bankruptcy Court did not give him immunity from disciplinary proceedings (although subsection 41(8.1) of the Act was not in effect at the time these proceedings were brought). In this connection, the delegate Poitras adopted the interpretation given in Friedman & Friedman Inc. v. Canada (Superintendent of Bankruptcy), [2001] F.C.J. No. 124 (F.C.T.D.) (QL). I concur with the delegate Poitras in this regard (see infra, section X - Discharge of applicant Roy - Sunliner case).
VI - INTERACTION OF THE BILL AND THE CANADIAN CHARTER
[38] The first point to be made is that the Bill is complementary in nature.
[39] The Bill is a quasi-constitutional statute: unless the conflicting legislation expressly declares that it operates notwithstanding the Bill, as required by section 2, where federal legislation conflicts with the protections of the Bill, the Bill applies and the legislation (or part thereof) is inoperative (R. v. Drybones, [1970] S.C.R. 282; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, at paragraph 28; Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40, at paragraph 32; Air Canada v. Canada (Procureure générale), [2003] R.J.Q. 322, at paragraphs 39 to 50 (C.A.)). The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect (subsection 52(1) of the Constitution Act, 1982) unless, in cases where a right guaranteed by the Canadian Charter is infringed, such an infringement can be justified under section 1 of the Charter.
[40] Paragraphs 1(a) and 2(e) of the Bill, on which the applicants relied, state:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
1. Il est par les présentes reconnu et déclaré que les droits de l'homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe :
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law . . .
. . . . .
a) le droit de l'individu à la vie, à la liberté, à la sécurité de la personne ainsi qu'à la jouissance de ses biens, et le droit de ne s'en voir privé que par l'application régulière de la loi . . .
. . . . .
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
. . . . .
2. Toute loi du Canada, à moins qu'une loi du Parlement du Canada ne déclare expressément qu'elle s'appliquera nonobstant la Déclaration canadienne des droits, doit s'interpréter et s'appliquer de manière à ne pas supprimer, restreindre ou enfreindre l'un quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni à en autoriser la suppression, la diminution ou la transgression, et en particulier, nulle loi du Canada ne doit s'interpréter ni s'appliquer comme
. . . . .
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations . . .
e) privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations . . .
[41] It should be pointed out that some of the preceding guarantees acquired the status of constitutional guarantees when the Constitution was amended and the Canadian Charter came into effect. Section 7 and paragraph 11(d) of the Canadian Charter state:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
11. Any person charged with an offence has the right
. . . . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . .
11. Tout inculpé a le droit :
. . . . .
d) d'être présumé innocent tant qu'il n'est pas déclaré coupable, conformément à la loi, par un tribunal indépendant et impartial à l'issue d'un procès public et équitable . . .
[42] The trustees acknowledged that paragraph 11(d) of the Canadian Charter does not apply in this case. Further, the Supreme Court has excluded application of paragraph 11(d) of the Canadian Charter in disciplinary cases of a regulatory nature intended to maintain discipline, professional integrity and professional standards, when the latter have no true penal consequences (R. v. Wigglesworth, [1987] 2 S.C.R. 541; R. v. Kalanj, [1989] 1 S.C.R. 1594; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869). That said, because of the seriousness of the offences charged, the quasi-judicial nature of the proceeding in question and the impact of the tribunal's decision on their professional activities, the applicants submitted that by analogy they have the right to be presumed innocent and to put forward a "full answer and defence" against the offences charged, before an independent and impartial tribunal.
[43] In this regard, the applicants relied on the following comments by Dickson J. (as he then was) in Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, at 1113:
A high standard of justice is required when the right to continue in one's profession or employment is at stake . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.
[44] In his decision, the delegate Kaufman said that he agreed in general with the viewpoint expressed in Kane, supra, and by implication the delegate Poitras also subscribed to this general principle, which the Attorney General of Canada does not appear to dispute here.
[45] Further, it should be noted that section 14.08 of the Act authorizes a trustee licence to be issued to a body corporate. That is the case, for example, with the applicant Sam Lévy & Associés Inc. It is thus more accurate to say that the possible suspension or cancellation of the latter's licence only involves economic interests.
[46] Thus, from the outset the applicants adopted the following position before the delegates: insofar as paragraph 2(e) of the Bill is not infringed, the same is true of section 7 of the Canadian Charter; as a corollary, if paragraph 2(e) of the Bill is infringed, section 7 of the Canadian Charter is as well. However, it should be noted that this equation is not absolute or equivalent in positive law. The phrase "principles of fundamental justice" in paragraph 2(e) of the Bill is expressly associated with the right to a "fair hearing", while section 7 of the Canadian Charter does not create the same connection. In the latter case, the words "principles of fundamental justice" are associated with a much more fundamental right, i.e. the right to "life, liberty and security of the person".
[47] I note that in Reference Re Section 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486, the Supreme Court held that section 7 of the Canadian Charter could also include the substantive right not to be imprisoned for an absolute liability offence, a proposition which may be conceivable with respect to paragraph 1(a) of the Bill, but certainly not under paragraph 2(e). Generally speaking, the Supreme Court has to date seemed hesitant to recognize that economic rights can be protected by section 7 of the Canadian Charter, unless the infringement of the right to life, liberty and security of the person results from the interaction of the individual with the judicial system and the administration of justice (Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429).
[48] It is true that a whole range of situations may involve the administration of justice and the latter does not exclusively entail criminal proceedings (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307. However, there is still considerable doubt as to the scope of section 7 of the Charter in a situation involving administrative regulation of economic or professional activities by various groups of individuals. This is true, for example, when the very comp