Vennat v. Canada (Attorney General)

Vennat v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2006-08-23
Neutral citation
2006 FC 1008
File numbers
T-611-04
Notes
Reported Decision
Decision Content
Date: 20060824
Docket: T-611-04
Citation: 2006 FC 1008
Ottawa, Ontario, August 24, 2006
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
MICHEL VENNAT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
TABLE OF CONTENTS
I. Introduction ......................................................................................................... 6
II. The suspension without pay order....................................................................... 7
III. Issues................................................................................................................... 8
IV. Answer to the questions at issue........................................................................ 9
V. Facts and procedural background....................................................................... 9
A. Mr. Beaudoin’s departure and Mr. Vennat’s arrival.................................... 9
B. The exchange of correspondence between the Minister of Industry and the Chairperson of the Board of Directors of the BDC................................... 11
C. The requests for meetings and the suspension without pay....................... 12
D. The meeting and the production of documents.......................................... 17
E. The applicant’s additional requests............................................................ 19
F. The decision and the application for judicial review................................... 21
VI. Analysis – Motions to strike and to remove certain evidence....................... 23 A. Respondent’s motion to strike and to remove certain evidence................ 23
(1) First part.................................................................................................. 24
(2) Second part............................................................................................. 24
(i) Ground A........................................................................................... 25
(ii) Ground B........................................................................................... 28
(iii) Ground C........................................................................................... 28
(iv) Ground D........................................................................................... 29
B. Applicant’s motion to strike.......................................................................... 29
(1) First part................................................................................................. 32
(2) Second and third part............................................................................. 33
VII. Analysis – Principal application– Procedural issues......................................... 33 A. Analysis in accordance with the factors in Baker........................................ 38
(1) The nature of the decision being made and process followed in
making it................................................................................................... 38
(a) A non-judicial and non-formalistic procedure.............................. 38
(b) The Governor in Council, master of the procedure........................ 39
(2) The nature of the statutory scheme and the terms of the law.............. 40
(a) The wording of subsection 6(2) of the BDC Act and the “for cause”
requirement drawn from the case law............................................... 40
(b) The notion of holding office during good behaviour: a variable
concept which does not afford a basis for inferring that specific
procedural safeguards apply thereto................................................. 45
(c) The status and the purpose of the BDC: Enhanced procedural
......... safeguards.......................................................................................... 49
(d) The absence of a right to appeal confirms that enhanced
procedural safeguards must be recognized....................................... 53
(3) The importance of the decision to the individual affected................... 54
(4) The legitimate expectations................................................................... 55
(5) The procedural choices of the decision-making body........................... 58
(a) A non-judicial and non-formalistic procedure............................ 58
(b) The Governor in Council’s obligation to conduct a personalized
inquiry and the right to respond.................................................... 60
(i) The use of the judgment in Beaudoin v. Banque de développement du Canada............................................................ 61
i.1) The judgment creates a simple presumption of facts............ 62
i.2) The applicant does not have the right to examine and
cross-examine witnesses........................................................ 65
(ii) The case law.................................................................................. 66
ii.1) Wedge v. Canada (Attorney General)................................... 67
ii.2) Weatherill v. Canada (Attorney General)............................ 68
(iii) Findings regarding the obligation to conduct a personalized inquiry and the right to respond.................................................. 71
(iv) Meaning of the expression “personalized inquiry”
[“enquête personalisée”]................................................................ 76
(c) The nature of the duties performed: the Governor in Council
can be somewhat predisposed in factual situations in the context
of an employer-employee relationship............................................ 78
(d) The right to fair play and transparency........................................ 80
B. Analysis of the procedural safeguards according to Knight................ 83
(1) The right to be informed of the reasons for the employer’s
dissatisfaction ........................................................................................ 84
(2) The applicant’s right to respond was only observed in part............... 85
(a) The duration of the meeting and failure to conduct a personalized inquiry................................................................ 86
(b) The timeframe for the decision-making process was very brief. 87
(c) The absence of Mr. Ritchie.......................................................... 89
(d) The standard applied.................................................................... 90
C. Finding on the Governor in Council’s duty to act fairly......................... 93
VIII. Analysis – Principal application– Substantive issues..................................... 95
IX. The costs.......................................................................................................... 95
X. Conclusion........................................................................................................ 96
Appendix A 99
Appendix B............................................................................................................... 100
Appendix C............................................................................................................... 101
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] This is an application for judicial review based on section 18.1 of the Federal Courts Act, R.S., 1985, c. F-7 (FCA) against two Orders of the Governor in Council regarding the applicant Michel Vennat (applicant or Mr. Vennat).
[2] The two Orders in Council (the Orders in Council) at issue are the following:
- An Order in Council dated February 24, 2004, bearing number P.C. 2004-147 (suspension without pay order), suspending the applicant without pay from his duties as President and Chief Executive Officer of the Business Development Bank of Canada (BDC) until further notice (MV-10);
- An Order in Council dated March 12, 2004, bearing number P.C. 2004-225 (dismissal order), made pursuant to subsection 6(2) of the Business Development Bank of Canada Act , 1995, c. 28 (BDC Act), terminating the appointment of Mr. Vennat as President and Chief Executive Officer of the BDC (Exhibit MV-21).
[3] Mr. Vennat is asking the Court to make certiorari orders quashing or setting aside the Orders in Council, as well as an order confirming the full force and effect of the Order in Council for the applicant’s appointment, dated July 31, 2000, bearing number P.C. 2000-1278 (Appointment Order) (Exhibit MV-2).
II. The suspension without pay order
[4] Although this application for judicial review appears to contemplate two distinct decisions, it would, in my opinion, be appropriate to deal with them as a single decision. That is what Hugessen J. stated in his order dated January 20, 2006:
[TRANSLATION]
[3] Mr. Vennat alleged that the orders constituted a single decision . . .
[4] In my opinion, the Court should authorize Mr. Vennat to contest the two orders in a single application for judicial review. In my view, it is obvious that the orders constitute one continuous decision. These two orders were published by only one decision-making organization, that is, the Governor General in Council. The Suspension Order and the Dismissal Order concern the same facts, and Mr. Vennat is seeking the same relief. It is obvious that the two orders concern one situation, that is, the role played by Mr. Vennat in the dismissal of François Beaudoin. In addition, it would be a waste of time and resources to require two distinct applications for judicial review in this case. In short, the Court shall order that this application for judicial review concern both orders of the Governor General in Council. . . .
[References omitted.]
I share the opinion of Hugessen J. The two Orders in Council are inextricably linked and they need not be addressed separately, as the applicant acknowledged before Hugessen J.
[5] This application for judicial review will require a detailed analysis of the issue of whether the duty to act fairly was observed in the applicant’s case. A preliminary decision does not generally give rise to the application of a duty to act fairly (Knight v. Indian Head School Div. No. 19, [1990] 1 S.C.R. 653, at page 670). The suspension without pay order is a preliminary decision, and the dismissal order is the final decision. Bearing that in mind, the suspension without pay order is still a relevant factor in the factual framework in determining whether the applicant was treated in compliance with the duty to act fairly.
III. Issues
[6] The issues are the following:
1. What is the nature of the duty to act fairly applicable when dismissing a person appointed to hold office during good behaviour as President and Chief Executive Officer of the BDC?
2. Was the duty to act fairly observed in the applicant’s case?
3. In the affirmative,
(a) What is the appropriate standard of review for the decisions of the Governor in Council in this case?
(b) Should the Orders in Council be upheld considering this standard of review?
IV. Answer to the questions at issue
[7] For the reasons that follow, it is my opinion that the applicable procedural safeguards were not respected as regards the applicant. The application for judicial review is allowed, and questions 3(a) and 3(b) need not be answered considering my answer to questions 1 and 2.
V. Facts and procedural background
A. Mr. Beaudoin’s departure and Mr. Vennat’s arrival
[8] François Beaudoin (Mr. Beaudoin) had been President and Chief Executive Officer of the BDC from January 27, 1993 to October 1, 1999.
[9] On June 4, 1998, the applicant was appointed as Chairperson of the BDC’s Board of Directors during pleasure for a three-year mandate, as appears from the Order of the Governor in Council bearing number P.C. 1998-985 (Exhibit MV-1).
[10] During 1999, disputes within the BDC would lead to Mr. Beaudoin’s departure. On September 15, 1999, a transaction providing for the payment of Mr. Beaudoin’s pension was made between Mr. Beaudoin and the BDC (the transaction). This transaction was approved by the Governor in Council on September 17, 1999. Mr. Beaudoin continued his duties until October 1, 1999.
[11] On July 31, 2000, the applicant was appointed President and Chief Executive Officer of the BDC for a five-year mandate beginning on August 15, 2000, as appears in the Appointment Order. At that time he replaced Bernie Schroder, the person that had been appointed to act following Mr. Beaudoin’s departure.
[12] On November 3, 2000, following difficulties relating to the performance of the transaction, Mr. Beaudoin filed a motion to homologate the transaction (Exhibit MV-17, sub-tab 3) in the Superior Court of Quebec. On December 8, 2000, the BDC asked that the transaction be annulled and that the motion be dismissed. Moreover, it drafted a counterclaim against Mr. Beaudoin (Exhibit MV-17, sub-tab 5).
[13] On February 6, 2004, Mr. Justice André Denis of the Superior Court of Quebec made a decision in the matter of Beaudoin v. Banque de développement du Canada, [2004] J.Q. No. 705, homologating the transaction and ordering the BDC to comply with it. The judgment also offset some of the sums due from Mr. Beaudoin to the BDC. The judgment contains harsh remarks about the BDC and the applicant, who was a witness at the hearing. That decision is final, as the parties chose not to appeal it.
B. The exchange of correspondence between the Minister of Industry and the Chairperson of the Board of Directors of the BDC
[14] In a letter dated February 9, 2004, the Minister of Industry, Lucienne Robillard (the Minister of Industry) wrote the following to Cedric E. Ritchie (Mr. Ritchie), then Chairperson of the BDC’s Board of Directors (Exhibit MV-6):
Dear Mr. Ritchie,
Last Friday, Justice Denis of the Quebec Superior Court rendered his decision in the case of François Beaudoin vs Development Bank of Canada.
Like many Canadians, I am concerned by the conclusions expressed and the fact findings by Justice Denis in his decision.
As Minister responsible for the BDC before Parliament, and to allow me to report to Canadians, I would like to be informed of what the BDC intends to do following the Court’s decision and, more particularly, if the BDC will appeal the decision. I would also like to be informed of any other decisions and actions the BDC intends to take as a result of the Court’s decision.
[15] Mr. Ritchie responded to the Minister of Industry in a letter dated February 18, 2004, (Exhibit MV-7), which reads as follows:
Dear Minister,
On February 9th, you wrote me concerning the decision in the case of François Beaudoin vs Development Bank of Canada.
After careful discussion, the Board has decided not to appeal the decision for the reasons mentioned in the attached draft press release. The Board has also confirmed its full confidence in the management of the Bank, and specifically its President and Chief Executive Officer, Mr. Michel Vennat.
The Board is of the opinion that no further action is required as a result of the court’s decision.
[16] The press release attached to the letter reads as follows (press release dated February 18, 2004) (Exhibit MV-8):
BDC Board of Directors decides not to appeal court decision - Board fully supports BDC management
Montréal, February 18, 2004 – At a meeting held earlier today, the Business Development Bank of Canada’s (BDC) Board of Directors (Board) has decided not to appeal the February 6th Superior Court of Québec’s decision in the matter involving BDC and its former President, Mr. François Beaudoin.
In coming to this decision, the Board considered two separate legal opinions: (i) the advice of the Honourable Claude Bisson, retired Chief Justice of the Court of Appeal of Québec, in his capacity as independent counsel to the Board, and (ii) the advice of Raynold Langlois in his capacity as outside counsel to BDC.
Although the legal advice received from both counsels was to the effect that the decision is flawed in many respects and that an appeal was recommended, the Board decided not to pursue the matter.
The Board Chairman, Cedric E. Ritchie, said: “The Board in conjunction with Bank management has decided to close this chapter in the best interest of our employees and our clients, and get on with what BDC does best – serve the needs of Canadian entrepreneurs.”
The Board’s decision is the result of a profound and thoughtful analysis. The Board believes that all legal actions undertaken by BDC in this case were solely governed by sound principles of governance and the protection of its assets.
At its meeting this morning, the Board unanimously reiterated its full confidence in the management of the Bank, and specifically its President and Chief Executive Officer, Michel Vennat. It noted that since his appointment as head of the Bank in August 2000, Mr. Vennat implemented a number of initiatives to strengthen BDC governance and ethics. The Board also observed that the performance of BDC has been outstanding in all respects since Mr. Vennat took office, making it even more relevant to the aspirations and development of businesses in Canada.
Mr. Ritchie added: “The Board understands that this has been a trying time for BDC’s employees and clients. Furthermore, the Board fully supports the Management of BDC”.
The Business Development Bank of Canada is a financial institution wholly owned by the Government of Canada. BDC plays a leadership role in delivering financial, investment and consulting services to Canadian small businesses, with a particular focus on the technology and export sectors of the economy.
C. The requests for meetings and the suspension without pay
[17] Mr. Vennat then sent to the Prime Minister of Canada, Mr. Paul Martin, a letter dated February 23, 2004 (letter to the Prime Minister), asking the government to observe the procedural fairness owed to him (Exhibit MV-9):
Dear Prime Minister,
I am very concerned in reading newspaper reports to the effect that your government is preparing to make decisions about my future without giving me the opportunity to be heard. I am not even aware of what allegations have been made about me.
If these stories are true, I am hereby requesting the opportunity to be heard fairly, with due process, in the presence of our Chairman and counsel, at a meeting where the Clerk of the Privy Council and the Deputy Minister of Justice would participate, before any decision and any announcement is made.
[18] On February 24, 2004, the Minister of Industry sent the applicant a letter reading as follows (letter dated February 24, 2004) (Exhibit MV-10):
[TRANSLATION]
Sir,
The government has carefully reviewed the decision by Mr. Justice Denis of the Superior Court in the matter of Beaudoin v. Banque de développement du Canada, made on February 6 of this year.
Following that review and taking into account the comments and findings made by Mr. Justice Denis with regard to your conduct and the role that you played in this matter, serious questions were raised regarding whether there are valid grounds justifying the termination of your appointment as President and Chief Executive Officer of the BDC.
In view of the foregoing, I hereby inform you that earlier today an Order was adopted by the Governor in Council having the immediate effect of suspending you without pay from your duties as President and Chief Executive Officer of the BDC. Please find attached a copy of the Order in Council in question.
I also inform you that you have until next Monday, March 1 at 4:00 p.m. to produce written reasons explaining why, in your opinion, the Governor in Council should not terminate for cause your duties as President and Chief Executive Officer of the BDC. I would appreciate it if you would send your written submissions to my office.
Sincerely yours . . .
[19] The suspension without pay order is attached to the letter.
[20] On February 25, 2004, the applicant wrote to the Minister of Industry (letter dated February 25, 2004) asking for the grounds for the allegations and requesting a meeting before counsel, the Clerk of the Privy Council Office and the Deputy Minister of Justice. The letter included as an attachment a press release entitled [TRANSLATION] “Michel Vennat: unjust decision” (Exhibit MV-11).
[21] In a letter dated February 26, 2004, the Minister of Industry responded to the applicant (letter dated February 26, 2004) (Exhibit MV-12). The letter reads as follows:
[TRANSLATION]
Sir,
I acknowledge receipt of your letter dated February 25, 2004, in reply to my letter dated February 24, 2004, informing you inter alia of the decision by the Governor General in Council to suspend you, without pay, from your duties as President of the Business Development Bank of Canada, until further notice.
I understand in part from your letter that you would like to know more specifically what allegations have been made against you.
I would first like to refer to my letter dated February 24, in which I pointed out that the comments and findings made by Mr. Justice Denis raise serious questions regarding your conduct and the role that you played in that matter. That said, and in response to your letter of yesterday, I am providing you with the following additional information to assist you in preparing your written reasons.
First, and foremost, I draw your attention to paragraphs 597, 651 and 653 of the decision, which read as follows:
[597] In fact, the entire operation reinforces the impartial observer’s impression that a vendetta was orchestrated by the BDC against Mr. Beaudoin. . . .
[651] The vicious if not malicious manner in which he was treated in this whole matter certainly reinforced his beliefs.
[653] They acted as though they wanted to break him and ruin his career. This entire affair leaves a profound sense of injustice . . .
As well as commenting on the paragraphs that I just cited, please also comment on the following paragraphs of the decision by Mr. Justice Denis: 490, 499, 555, 576, 580, 608, 609, 613, 614, 640 and 1614.
I would add that the list of the above-mentioned paragraphs is not an exhaustive list of all the paragraphs concerning you or relating to the BDC, its employees and agents and, in essence, you must provide a global response to this judicial decision as a whole and not just to the cited paragraphs.
In elaborating your written reasons, it will be important that you comment not only on your personal role, but also on aspects of the conduct and behaviour of the Bank and its agents, for whom you may legitimately be held responsible. Furthermore, please ensure that your reasons are supported by objective and relevant facts and data.
You have also asked me to meet with you in the presence of your legal counsel, the Clerk of the Privy Council and the Deputy Minister of Justice. I agree to meet with you and I may be accompanied by representatives of the Privy Council and the Justice Minister.
Note that this meeting does not in any way substitute the request that I made to you to submit to me in writing, before March 1, 2004, at 4:00 p.m., the reasons for which, in your opinion, the Governor General in Council should not terminate your duties. The explanations that you provide verbally during our meeting should be included in your written reasons.
The recommendation that I will make to the Governor General in Council will be based on the decision by Mr. Justice Denis, on the explanations provided during our meeting and on your written reasons. The Governor General in Council will consider it all when she decides whether or not you will continue in your position.
My office will contact you in the hours that follow to determine the place, date and time of the meeting.
Sincerely yours . . .
[Emphasis added.]
In short, the letter dated February 26, 2004, informed the applicant that there were two components of the allegations against him, namely:
- His conduct and his credibility at the hearing in Beaudoin v. Banque de développement du Canada, above (personal component);
- His actions, in performing his duties as President and Chief Executive Office in particular [TRANSLATION] “in relation to the issues contemplated in the reasons of the decision in the matter of Beaudoin” [the letter specifies a series of paragraphs from the judgment] and with respect to “the aspects of the conduct and behaviour of the bank and its agents for whom [Mr. Vennat] may legitimately be held responsible” (corporate component).
[22] On February 29, 2004, the applicant’s counsel wrote to the Minister of Industry, referring to the unreasonableness of the time period given to respond to the grounds for the allegations and pointing out that only [TRANSLATION] “a first draft” of the applicant’s response could be submitted in that time (Exhibit MV-13). The letter reads as follows:
[TRANSLATION]
Madam Minister,
Your letter dated February 26, 2004, addressed to our client, Michel Vennat, O.C., Q.C., was referred to us for review and response.
First, we must thank you for having accepted, in principle, the meeting requested.
On another note, we have reviewed the additional information that you provided to Mr. Vennat regarding the paragraphs of Mr. Justice Denis’ decision that you wanted Mr. Vennat to comment on specifically. We are working on it and we believe that at Monday’s meeting we shall be able to provide you with a first draft of the written reasons as to why Mr. Vennat considers that the Governor in Council should not terminate his duties as President and Chief Executive Officer of the BDC on the basis of Mr. Justice Denis’ decision.
You understand, however, that the amount of time that was given to Mr. Vennat to do so is such that it is unreasonable to expect that we can do a thorough job in that time – for us it will involve a careful review of not only the judgment of 1745 paragraphs over 210 pages, but of the facts and the evidence on which it is based (32 days of hearing/35 witnesses, more than 300 exhibits, approximately 8000 pages of transcript).
That is why, when you ask us to “provide a global response to this judicial decision as a whole and not just to the cited paragraphs” and “reasons . . . supported by objective and relevant facts and data”, that at the end of our meeting on Monday we may subsequently give you additional written information if it is necessary to review all of the evidence (since we were not the solicitors of record at trial).
Sincerely yours . . .
[Emphasis in original.]
D. The meeting and the production of documents
[23] On March 1, 2004, a meeting was held in Ottawa (meeting of March 1, 2004). The applicant, accompanied by his counsel, the Minister of Industry, the Clerk of the Privy Council as well as Pierre Legault, general in-house counsel at the Department of Industry, were present. The substance of that meeting was established only by the applicant’s affidavit, as the respondent chose not to file an affidavit.
[24] At the meeting, the applicant in essence says that he explained the substance of a six-page letter, dated March 1, 2004, addressed to the Minister of Industry (letter dated March 1, 2004) (Exhibit MV-14). This letter gives the applicant’s version of the facts regarding various aspects of the matter of Beaudoin v. Banque de développement du Canada, above. Moreover, his counsel reviewed some parts of the preliminary memorandum that they had prepared to be sent to the Minister of Industry (preliminary memorandum) (Exhibit MV-15) at the same time as the letter.
[25] The Clerk of the Privy Council asked Mr. Vennat and his counsel whether it would be possible to obtain a copy of the legal opinions. It was then stated that the BDC had advised the applicant that it would not waive solicitor-client privilege and that, for that reason, the applicant could not disclose a copy of the legal opinions to the Minister of Industry. The Minister of Industry had also asked, near the end of the meeting, whether she could have a copy of certain documents, including the minutes of the proceedings of the Board of Directors with regard to Beaudoin v. Banque de développement du Canada, above, to which the applicant agreed. The applicant and his counsel asked the Minister of Industry if she wanted to have a copy of the exhibits and the transcripts of hearing of Beaudoin v. Banque de développement du Canada, above. The applicant invited the Minister of Industry to obtain statements from certain third parties in order to establish that the judgment was unfounded. The Minister of Industry responded that it was not necessary. The applicant indicated that he was ready to provide additional information or to respond to any other questions.
[26] On March 2, 2004, the applicant’s counsel prepared the documentation requested by the Minister of Industry and sent it to her (Exhibits MV-16 and MV-17). Counsel agree that the meeting lasted no more than two hours.
E. The applicant’s additional requests
[27] On March 3, 2004, the remarks of [TRANSLATION] “a source close to Paul Martin” were reported in Vincent Marissal’s political column (article from the newspaper La Presse) (Exhibit MV-18):
[TRANSLATION]
I really cannot see how those two [the applicant and Marc Lefrançois, President of Via Rail] can get out of it, knowing the allegations against them, there is nothing they can say that would convince the Prime Minister to leave them in their positions.
[28] The applicant’s counsel then sent a letter, dated March 4, 2004 (letter dated March 4, 2004), to the Minister of Industry (Exhibit MV-19). That letter refers to the article from the newspaper La Presse, expresses the applicant’s concerns and seeks the Minister of Industry’s reassurance:
[TRANSLATION]
Madam Minister,
Further to our meeting of Monday, March 1, 2004, and our letter dated Tuesday, March 2, 2004, sending you the additional documents, we wish to call your attention to a highly disturbing situation.
In an article that appeared in La Presse on Wednesday, March 3, 2004, entitled “The Apprentice” sauce Paul Martin …, journalist Vincent Marissal reports the following remarks of a source close to Paul Martin:
I really cannot see how those two (*) can get out of it, knowing the allegations against them, there is nothing they can say that would convince the Prime Minister to leave them in their positions.
(*) referring to Michel Vennat and Marc Lefrançois
This source seems to indicate that the decision has been, for all practical purposes, already made. This hardly reflects the duty to act in observing the rules of natural justice and procedural fairness (regarding which we have made specific submissions to you).
Michel Vennat made a great deal of effort to meet the deadline that was imposed on him. We believe that you had an open mind at our meeting and that you were listening to Michel Vennat’s position. We hope that this exercise was not in vain for him or for you, in light of the foregoing.
You would agree that to be judged and condemned like this, in public, without any other form of hearing (Vincent Marissal talks about the Prime Minister giving Michel Vennat and Marc Lefrançois [TRANSLATION] “a professional death sentence” to have an effect on the polls) is appalling to the fair and equitable. Especially when Michel Vennat, out of respect to you and his position as President and Chief Executive Officer of the BDC, has to date refused to debate the matter publicly, thereby respecting the review process that you have begun.
Michel Vennat must be assured that the rules of natural justice and procedural fairness are truly observed.
Sincerely yours . . .
[Emphasis in original.]
[29] On March 10, 2004, in a letter sent to the Minister of Industry, copied to the Minister of Justice, Irwin Cotler (letter dated March 10, 2004), the applicant’s counsel proposed that the Minister of Justice refer the matter to the Judicial Council for an inquiry to be held regarding the applicant’s possible removal, in accordance with section 69 of the Judges Act, R.S., 1985, c. J-1 (Exhibit MV-20). The letter reads as follows:
[TRANSLATION]
RE: Michel Vennat, O.C., Q.C.
Madam Minister,
Further to our meeting of Monday, March 1, 2004, and our letters of Tuesday, March 2, 2004, sending you the additional documents, and of Thursday, March 4, 2004, sharing our concerns with you regarding the observance of the rules of natural justice and procedural fairness, we would like to bring to your attention an additional matter for reflection.
Although we are confident that you will make a recommendation observing Michel Vennat’s rights as set out in his letter and our memorandum of March 1, 2004, if there should be a degree of discomfort following your analysis, or if you are confronted with contrary views, there is then the following alternative.
The source of the problem is the judgment in Beaudoin. Michel Vennat wholeheartedly disagrees with the judge’s position toward him, which he considers to be totally unfounded and unenforceable. We believe that we established this for you based on the evidence and the principles that apply in such cases. This should be enough to reinstate Michel Vennat to his duties immediately.
If, notwithstanding the foregoing, the government still had doubts, we should remember that our justice system is designed in such a way that the recognized manner to challenge an unfounded judgment is to appeal it before the Court of Appeal.
However, since Michel Vennat was not personally a party to the proceedings between Mr. Beaudoin and the BDC, he did not have the right to appeal the judgment in order to challenge its merits even if it targeted him personally. Only the BDC could go to appeal, on its own or on ministerial order. The BDC decided not to do so for business reasons. The government, which had the power to instruct the BDC to go to appeal, did not do so. As the time period for the appeal has expired, we note that this is no longer a viable solution.
However, the BDC clearly expressed its disagreement with the judgment, and its Board of Directors, which by law directs and manages the business and affairs of the BDC, unanimously reiterated its support for its President and Chief Executive Officer, Michel Vennat.
Michel Vennat must therefore be given the opportunity to defend himself before an impartial and independent tribunal whose decision is not dependant on political pressure, influenced by the polls, and/or by media hype, but rather is respectful of the rights of the parties including the rights of Michel Vennat. This forum exists. It is a matter of referring the case to the Canadian Judicial Council (“Council”) in accordance with the Judges Act (R.S.C 1985, c. J-1). A specific provision of that Act, section 69, authorizes the Minister of Justice to address the Council to conduct an inquiry on the reasons for the removal raised in respect of a person appointed to hold office during good behaviour under a federal law. That is Michel Vennat’s case.
It is clear that in any event, Michel Vennat must be reinstated immediately to resume his duties since, even if the matter is referred to the Council, this must be parallel to a reinstatement in order to, first, respect the referral to the Council and, second, to not prejudge its recommendation. That would establish that the government is respecting individual human rights.
Sincerely yours . . .
F. The decision and the application for judicial review
[30] A certificate from the Clerk of the Privy Council (an appendix is attached thereto) dated April 20, 2005, had been submitted to the Court pursuant to section 39 of the Canada Evidence Act, R.S. 1985, c. C-5 (Exhibit MV-32). The certificate indicates that two documents cannot be disclosed because they contain confidential information of the Privy Council. The appendix states that document #1 involves the suspension without pay order. The appendix states moreover that document #2 is a submission proposing the Minister of Industry’s recommendation to the Governor in Council in March 2004 (the date and the title are not specified), regarding the end of Mr. Vennat’s mandate. The certificate and the appendix do not reveal anything else regarding the substance of document #2.
[31] On March 12, 2004, the Minister of Industry wrote the applicant to inform him of the adoption of the dismissal order (dismissal letter) (Exhibit MV-21):
[TRANSLATION]
Sir,
The government has carefully reviewed the decision made by Mr. Justice Denis of the Superior Court of Quebec in François Beaudoin v. Banque de développement du Canada (BDC), on February 6 of this year. The government has also reviewed the written submissions and the documents that you provided to me on March 1 and 2, 2004. It has also considered your oral submissions of March 1, 2004.
The Governor in Council determined that she lost confidence in you as President of the Business Development Bank of Canada and that your conduct in relation to the issues contemplated in the reasons of the decision in the matter of Beaudoin is incompatible with your continued appointment.
In light of the foregoing, I hereby inform you that an Order was adopted by the Governor in Council earlier today, having the immediate effect of terminating your duties as President and Chief Executive Officer of the BDC. Please find attached a copy of the Order in Council in question.
Sincerely yours . . .
[32] The dismissal order, attached to the letter, reads as follows:
Whereas, by Order in Council P.C. 2000-1278 of July 31, 2000, Michel Vennat was appointed President of the Business Development Bank of Canada, to hold office during good behaviour for a term of five years, effective August 15, 2000;
Whereas on February 6, 2004, the Honourable Justice André Denis of the Superior Court of Québec issued his reasons for judgment in François Beaudoin v. Banque de développement du Canada, in which he commented adversely on the conduct of Michel Vennat;
Whereas, by Order in Council P.C. 2004-147 of February 24, 2004, Michel Vennat was suspended, without pay, from his duties as President of the Business Development Bank of Canada until further notice;
Whereas on February 24, 2004, Michel Vennat was informed by the Government of Canada of its concerns respecting his conduct as described in the reasons for judgment in François Beaudoin v. Banque de développement du Canada, and was invited to make submissions in response before March 1, 2004;
Whereas on March 1, 2004 and March 2, 2004, Michel Vennat made submissions orally and in writing;
And whereas the Governor in Council, having considered the reasons for judgment in François Beaudoin v. Banque de développement du Canada and the submissions received from Michel Vennat in response,
(a) has lost confidence in Michel Vennat as President of the Business Development Bank of Canada, and
(b) is of the opinion that the conduct of Michel Vennat in respect of the matters addressed in the reasons for judgment in François Beaudoin v. Banque de développement du Canada is incompatible with his continued appointment as President of the Business Development Bank of Canada;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, hereby terminates the appointment of Michel Vennat as President of the Business Development Bank of Canada, made by Order in Council P.C. 2000-1278 of July 31, 2000.
[33] On March 25, 2004, the applicant filed this application for judicial review before the Federal Court.
[34] The hearing of the application began in Montréal on June 27 and 28, 2006, in accordance with the order of the court administrator dated June 9, 2006. Based on the complexity of the issues in play and the length of the oral arguments, the hearing continued on July 4 and 5, with the parties’ consent. The undersigned heard the parties’ submissions on the motions to strike and to remove certain evidence as well as on procedural and substantive issues.
VI. Analysis – Motions to strike a