Shoan v. Canada (Attorney General)

Shoan v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-04-28
Neutral citation
2017 FC 426
File numbers
T-1053-16
Notes
Digest
Decision Content
Date: 20170428
Docket: T-1053-16
Citation: 2017 FC 426
Ottawa, Ontario, April 28, 2017
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
BALRAJ SHOAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
Table of Contents
SECTIONS PAGE
Background 2
Decision Under Review 6
Issues 7
Preliminary Issue: Should portions of the Applicant’s affidavit be struck out? 7
Respondent’s Position 7
Applicant’s Position 9
Analysis 10
Issue 1: What is the appropriate standard of review? 17
Issue 2: Did the GIC violate the duty of procedural fairness owed to the Applicant? 19
Applicant’s Position 19
Respondent’s Position 22
Analysis 26
(1) Content of the duty of fairness 26
(2) Application of the content of the duty of fairness 46
(a) Notice 46
(b) Opportunity to be heard 56
(c) Fair and impartial decision 61
Issue 3: Was the GIC’s decision to terminate the Applicant’s appointment unreasonable? 70
Issue 4: Remedy 78
Costs 81
[1]
This is an application for judicial review of the decision of the Governor-in-Council (“GIC”) dated June 23, 2016, terminating the appointment of the Applicant, Balraj Shoan, as a Commissioner of the Canadian Radio-television and Telecommunications Commission (“CRTC”), for cause, by way of Order-in-Council PC 2016-651 (“decision”). This application is brought pursuant to ss 18, 18.1 and 18.2 of the Federal Courts Act, RSC 1985, c F-7.
Background
[2] On July 3, 2013 the Applicant was, pursuant to s 3(1) of the Canadian Radio-television and Telecommunications Commission Act, RSC 1985, c C-22 (“CRTC Act”), appointed as a Commissioner of the CRTC by Order-in-Council of the GIC, PC 2013-080 as amended by PC 2013-0838. His appointment was to hold office during good behaviour for a five year term.
[3] The Applicant’s relationship with the CRTC was a difficult one, as demonstrated by the record before me. In September 2014 a complaint of harassment was laid against the Applicant by the CRTC’s Executive Director, Communications and External Relations. Pursuant to the CRTC Guidelines on Formal Harassment Conflict Resolution Mechanisms, the Secretary General of the CRTC was responsible for dealing with the complaint and, ultimately, referred the complaint to a third party for an investigation, Laurin & Associates (“Harassment Investigator”). The Harassment Investigator prepared a report which concluded that the complaint had merit (“Harassment Report”). The Secretary General recommended that the Chairperson of the CRTC accept the Harassment Report and implement the measures it recommended. By letter of April 7, 2015 the Chairperson did so. On April 28, 2015, the Applicant filed an application for judicial review of that decision with this Court.
[4] On October 22, 2015 the Applicant also brought an application for judicial review in the Federal Court of Appeal challenging three decisions of the Chairperson of the CRTC alleging that the Chairperson did not have the authority to establish panels of CRTC Commissioners to hear matters before it.
[5] Various other concerns arose such as the use of social media by the Applicant in a way that the Minister of Canadian Heritage and Official Languages (“Minister”) viewed as highly critical of the CRTC, as she advised the Applicant by letter of May 1, 2015.
[6] This culminated with a letter from the Minister dated February 26, 2016 (“Minister’s Letter”). The letter advised the Applicant that the Minister was writing to express her concerns about the Applicant’s capacity to serve as a Commissioner of the CRTC as matters had been brought to her attention that suggested that the Applicant had not carried out his duties ethically and responsibly and that his conduct had impaired the capacity of the CRTC to carry out its functions and the confidence of the public and stakeholders in its capacity to do so. The Minister stated that she was writing to share her concerns, to inform the Applicant of the information upon which her concerns were based, and to allow the Applicant an opportunity to provide the Minister with any submissions the Applicant believed should be considered by the Minister before she took any further action. The Minister stated that the Applicant should know that she was considering whether to recommend to the GIC that the Applicant’s appointment as a Commissioner be terminated. The letter went on to specify four categories of concern and attached a seven page document entitled “Expected Standard of Conduct & Summary of Concerns” (“Summary”) which appended and referenced approximately 1200 pages of documentation. The Minister asked that the Applicant provide, by March 14, 2016, any written representations that he believed should be taken into account before a decision was made regarding his continued role as a Commissioner of the CRTC and that any such submission would be carefully considered before the Minister decided whether or not to make any recommendation to the GIC.
[7] On March 14, 2016 the Applicant, through his counsel, submitted his response in which he addressed the Minister’s concerns (“Applicant’s Response” or “Response”).
[8] Ultimately, the Minister recommended that the Applicant’s appointment be terminated and, as noted above, the GIC terminated his appointment by Order-in-Council dated June 23, 2016.
[9] Subsequently, on September 2, 2016 Justice Zinn of this Court concluded that the investigation of the Harassment Investigator had exceeded the scope of its mandate and had been conducted with a closed mind (Shoan v Canada (Attorney General), 2016 FC 1003). In the result, as the process leading to the decision of the Chairperson had been conducted in a manner that denied the Applicant procedural fairness and natural justice, the application for judicial review was granted and the Chairperson’s decision to accept the Harassment Report and effect the measures it had recommended was set aside. However, Justice Zinn declined to order that the matter be referred back to be re-determined by another person as such an order would have no value given that the GIC had rescinded the Applicant’s appointment. The Applicant was awarded his costs.
[10] On September 9, 2016 Justice Mactavish declined to grant a motion brought by the Applicant seeking to stay the decision of the GIC, and to reinstate him in his position as a Commissioner of the CRTC, pending determination of his application for judicial review of the GIC’s decision to terminate his appointment (Shoan v Canada (Attorney General), 2016 FC 1031).
[11] On October 24, 2016 the Federal Court of Appeal in an oral judgment dismissed the Applicant’s application for judicial review of the challenged three decisions of the Chairperson of the CRTC. The Federal Court of Appeal held that the Chairperson was fully authorized to establish the panels at issue. Subsection 6(2) of the CRTC Act stated that the Chairperson was the chief executive officer of the CRTC, had supervision over and direction of the work and staff of the CRTC and would preside at CRTC meetings. Implicit in such power was the authority to assign cases and members to cases as explicitly recognized in the by-laws of the CRTC. The Federal Court of Appeal found that the application was sufficiently lacking in merit to warrant an increased award of costs against the Applicant (Shoan v Canada (Attorney General), 2016 FCA 261 (“Shoan FCA”)).
Decision Under Review
[12] The GIC’s decision to terminate the Applicant’s appointment as a Commissioner of the CRTC states as follows:
Whereas by Order in Council P.C. 2013-809 of June 13, 2013 as amended by Order in Council P.C. 2013-838 of June 21, 2013, Raj Shoan was appointed as a full-time member of the Canadian Radio-television and Telecommunications Commission (CRTC) for the Ontario region, to hold office during good behaviour for a term of five years, effective July 3, 2013;
Whereas on February 26, 2016, the Minister of Canadian Heritage wrote to Raj Shoan informing him that certain of his actions brought to her attention called into question his capacity to continue serving as a Commissioner of the CRTC, providing him with information regarding these concerns including the documentation upon which they were based, and inviting him to make any representations that he wished to have taken into account before any decision was made on whether to terminate his appointment for cause;
Whereas the Governor in Council has carefully considered the February 26, 2016 correspondence sent by the Minister, as well as the material communicated to Raj Shoan with that correspondence, and the submissions made by Raj Shoan on March 14, 2016, as well as the material enclosed with that submission;
And whereas the Governor in Council has concluded that Raj Shoan’s actions are fundamentally incompatible with his position and that he no longer enjoys the confidence of the Governor in Council to be a Commissioner of the CRTC;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister for the purposes of the Canadian Radio-television and Telecommunications Commission Act, pursuant to subsection 3(2) of the Canadian Radio-television and Telecommunications Commission Act, terminates for cause the appointment of Raj Shoan as a full-time member of the CRTC for the Ontario Region, effective June 24, 2016.
Issues
[13] The parties submit and I agree that this application for judicial review raises the following four issues:
What is the appropriate standard of review?
Did the GIC violate the duty of procedural fairness owed to the Applicant?
Was the GIC’s decision to terminate the Applicant’s appointment unreasonable?
What is the appropriate remedy?
[14] In addition, there is a preliminary issue to be addressed. This arises from a motion filed by the Respondent on January 20, 2017 seeking to have certain paragraphs of and exhibits to the Affidavit of the Applicant, sworn on July 4, 2016 and filed in support of this application for judicial review (“Shoan Affidavit”) struck out together with certain related paragraphs of the Applicant’s Memorandum of Fact and Law. I heard that motion immediately prior to and on the same date of this application for judicial review.
Preliminary Issue: Should portions of the Applicant’s affidavit be struck out?
Respondent’s Position
[15] As to the timing of the motion, the Respondent submits that applications for judicial review are intended to proceed as expeditious and summary proceedings. Therefore, motions to strike out affidavit evidence are expected to be brought before the judge hearing the application on its merits, to avoid unnecessary delay, rather than earlier in the proceedings by way of an interlocutory motion (Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18 (“Quadrini”); Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 11 (“Assn of Universities and Colleges”)).
[16] The Respondent submits that it objects to the admissibility of portions of the Shoan Affidavit on three grounds: i) it contains inadmissible opinion and argument; ii) it contains the Applicant’s gloss and explanation of the material that was before the GIC when it rendered its decision; and, iii) it contains evidence that was not before the GIC when it made its decision.
[17] Evidence for use in an application for judicial review is restricted to the record that was before the decision-maker, in this case the GIC, because of the differing roles of the decision-maker and the Court. While there is an exception to this general rule with respect to the admissibility of evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that was not before the decision-maker, this is only the case if the evidence could not have been put before the decision-maker. Further, an affidavit for use in an application for judicial review must be confined to the facts within the affiant’s personal knowledge. Opinion, argument or legal conclusions are not facts and are not admissible. Facts must be presented without gloss or explanation. Commenting on the evidence in the record before the decision-maker in order to provide the reviewing court with the affiant’s assessment of the evidence is inadmissible argument (Federal Courts Rules, SOR/98-106, s 81(1) (“Rules”); Quadrini at para 18; Duyvenbode v Canada (Attorney General), 2009 FCA 120 at para 2 (“Duyvenbode”); Canadian Tire Corporation v Canadian Bicycle Manufacturers Association, 2006 FCA 56 at paras 11-12 (“Canadian Tire Corp”)).
[18] And, while an affidavit may contain non-argumentative orienting statements, such evidence is admissible only for the narrow purpose of providing background information for the reviewing court and may not engage in spin or advocacy (Delios v Canada (Attorney General), 2015 FCA 117 at para 45 (“Delios”)). The Respondent then identified each of the paragraphs in the Shoan Affidavit that it objected to as inadmissible and explained the basis for each objection. It also identified the corresponding inadmissible portions of the Applicant’s written submissions.
Applicant’s Position
[19] The Applicant acknowledges that as a general rule the evidentiary record before the reviewing court on judicial review is restricted to the evidentiary record that was before the administrative decision-maker, the GIC in this case. However, the Applicant submits that there are recognized exceptions to this rule (Assn of Universities and Colleges). Further, that motions to strike on the issue of relevance should not be routinely brought, but rather only where the evidence is obviously irrelevant, is prejudicial and goes to a controversial issue (Mayne Pharma (Canada) Inc v Aventis Pharma Inc, 2005 FCA 50 (“Mayne”)). The Applicant submits that to strike irrelevant allegations, the Court must find the allegations to be abusive or it must be convinced that its admissibility would be better resolved at an earlier stage than at the hearing of the application (Quadrini at para 18). The discretion to strike portions of an affidavit should be exercised sparingly and only when it would be in the interests of justice to do so (Armstrong v Canada (Attorney General), [2005] FCJ No 1270 (FC) at para 40).
[20] The Applicant submits that the motion to strike could have been brought at an earlier stage, rather than five months after confirmation that the Shoan Affidavit would be relied upon and two months after the Applicant’s Memorandum of Fact and Law was served. It would be unjust to permit the motion at this stage in the proceedings.
[21] The Applicant also submits that the impugned portions of the Shoan Affidavit contain important background information about the main issues of the judicial review which is necessary to a contextual evaluation of the reasonableness of the GIC’s decision. Further, that they are relevant as they relate to issues concerning the procedural fairness and reasonableness of the GIC’s decision. In particular, that the Minister had a closed mind, was dismissive of the Applicant’s explanations of events as well as issues he raised as to the conduct of others. The Applicant submits that the Respondent has not established that the impugned affidavit evidence is irrelevant, prejudicial or controversial. Additionally, in principle, s 221 of the Rules does not apply in the context of an application for judicial review in order to strike out a pleading and it is only if it is deemed necessary that a judge may strike out parts of a memorandum of fact and law, which has not been established. The Respondent also responds to each of the impugned paragraphs.
Analysis
[22] As to the timing of the motion to strike portions of the Shoan Affidavit, I do not agree with the Applicant that the motion should have been brought earlier or that it would be unjust to permit the motion at this stage.
[23] In Assn of Universities and Colleges the applicant submitted that the issue of the admissibility of an affidavit should be determined by the panel hearing the application and not by way of advance ruling. Justice Stratas of the Federal Court of Appeal stated:
[11] Whether the Court should provide an advance ruling is a matter of discretion. This discretion is constrained by the instruction in subsection 18.4(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, that applications for judicial review be “heard and determined without delay and in a summary way.” As a result, the Court will only exercise its discretion to provide an advance admissibility ruling where it is clearly warranted. Those embarking upon an interlocutory foray to this Court to seek such a ruling will not often find a welcome mat when they arrive.
[emphasis added]
(Also see Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 9-11 (“Bernard”) and Mayne at para 16).
[24] In this matter the Applicant did not oppose the Respondent’s request that the motion to strike portions of the Shoan Affidavit be set down to be heard on the same date as the hearing of the application for judicial review. And, when appearing before me, the Applicant did not seek to have the motion dealt with and the application for judicial review then adjourned until a decision on the motion had been rendered. Accordingly, as neither party sought an advance ruling there is, in my view, no issue arising from the timing of the motion which would, in the normal course, be heard by the applications judge (Mayne at para 16). Indeed, prior to the hearing of the Applicant’s application for judicial review challenging the authority of the Chairperson to appoint panels, the Federal Court of Appeal refused a motion brought by the Respondent seeking to strike portions of the supporting affidavit of the Applicant, in part, on the basis that the Minister had attempted to seek an advance ruling (Shoan v Canada (Attorney General), February 18, 2016, Docket A-464-15 (FCA)).
[25] I would also note that the Applicant has not indicated why it would be unjust or prejudicial to permit the motion at this stage nor is a potential injustice apparent to me. In my view, it was appropriate for the Respondent, in the context of this application for judicial review, to have brought the motion at a time when it could be decided by the judge presiding over the hearing itself.
[26] As to the content of the Shoan Affidavit, in Assn of Universities and Colleges Justice Stratas of the Federal Court of Appeal pointed out that in determining the admissibility of an affidavit in support of an application for judicial review the differing roles played by the Court and the administrative decision-maker must be kept in mind. Parliament gave the administrative decision-maker, and not the Court, jurisdiction to determine certain matters on their merits. Because of this demarcation of roles, the Court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before a reviewing Court on judicial review is restricted to the evidentiary record that was before the decision-maker. Evidence that was not before the decision-maker and that goes to the merits of the matter is, with certain limited exceptions, not admissible. Justice Stratas listed three such exceptions and noted that the list may not be closed. The exceptions are an affidavit that provides: general background in circumstances where that information might assist the Court in understanding the issues relevant to the judicial review; brings to the attention of the judicial review Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review Court can fulfil its role of reviewing for procedural unfairness; and, highlighting the complete absence of evidence before the administrative decision-maker when it made a particular finding (at paras 19-20).
[27] Justice Statas revisited the general rule in Bernard, referencing the Federal Court of Appeal’s prior decisions in Assn of Universities and Colleges, Connolly v Canada (Attorney General), 2014 FCA 294 and Delios, and elaborated on the three recognized exceptions:
[23] The background information exception exists because it is entirely consistent with the rationale behind the general rule and administrative law values more generally. The background information exception respects the differing roles of the administrative decision-maker and the reviewing court, the roles of merits-decider and reviewer, respectively, and in so doing respects the separation of powers. The background information placed in the affidavit is not new information going to the merits. Rather, it is just a summary of the evidence relevant to the merits that was before the merits-decider, the administrative decision-maker. In no way is the reviewing court encouraged to invade the administrative decision-maker’s role as merits-decider, a role given to it by Parliament. Further, the background information exception assists this Court’s task of reviewing the administrative decision (i.e., this Court’s task of applying rule of law standards) by identifying, summarizing and highlighting the evidence most relevant to that task.
[24] The second recognized exception is really just a particular species of the first. Sometimes a party will file an affidavit disclosing the complete absence of evidence on a certain subject-matter. In other words, the affidavit tells the reviewing court not what is in the record-which is the first exception-but rather what cannot be found in the record: see Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.) and Access Copyright, above at paragraph 20. This can be useful where the party alleges that an administrative decision is unreasonable because it rests upon a key finding of fact unsupported by any evidence at all. This too is entirely consistent with the rationale behind the general rule and administrative law values more generally, for the reasons discussed in the preceding paragraph.
[25] The third recognized exception concerns evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the administrative decision-maker and that does not interfere with the role of the administrative decision-maker as merits-decider: see Keeprite and Access Copyright, both above; see also Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69, 274 N.B.R. (2d) 340 (improper purpose); St. John’s Transportation Commission v. Amalgamated Transit Union, Local 1662 (1998), 161 Nfld. & P.E.I.R. 199 (fraud). To illustrate this exception, suppose that after an administrative decision was made and the decision-maker has become functus a party discovers that the decision was prompted by a bribe. Also suppose that the party introduces into its notice of application the ground of the failure of natural justice resulting from the bribe. The evidence of the bribe is admissible by way of an affidavit filed with the reviewing court.
[26] I note parenthetically that if the evidence of natural justice, procedural fairness, improper purpose or fraud were available at the time of the administrative proceedings, the aggrieved party would have to object and adduce the evidence supporting the objection before the administrative decision-maker. Where the party could reasonably be taken to have had the capacity to object before the administrative decision-maker and does not do so, the objection cannot be made later on judicial review: Zündel v. Canada (Human Rights Commission), (2000), 195 D.L.R. (4th) 399; 264 N.R. 174; In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.).
[27] The third recognized exception is entirely consistent with the rationale behind the general rule and administrative law values more generally. The evidence in issue could not have been raised before the merits-decider and so in no way does it interfere with the role of the administrative decision-maker as merits-decider. It also facilitates this court’s ability to review the administrative decision-maker on a permissible ground of review (i.e., this Court’s task of applying rule of law standards).
[28] The list of exceptions is not closed. In some cases, reviewing courts have received affidavit evidence that facilitates their reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider: Hartwig v. Saskatchewan (Commissioner of Inquiry), 2007 SKCA 74, 284 D.L.R. (4th) 268 at paragraph 24. For example, in one case the applicant wished to submit that the administrative decision-maker’s decision was unreasonable because it wrongly construed certain submissions made by counsel as admissions. But counsel’s submissions to the administrative decision-maker were not in the record filed with reviewing court. The reviewing court admitted evidence of counsel’s submissions so that it could assess whether the decision was unreasonable: Ontario Shores Centre for Mental Health v. O.P.S.E.U., 2011 ONSC 358. In another case, a reviewing court admitted a partial transcript of proceedings before an administrative decision-maker. The transcript was prepared by one of the parties, not by the administrative decision-maker. In the circumstances, the reviewing court was satisfied that the partial transcript was reliable, did not work unfairness or prejudice, and was necessary to allow it to review the administrative decision: SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353, 336 D.L.R. (4th) 577.
[28] In Delios, Justice Stratas stated, with respect to the general background exception:
[44] Under this exception, a party can file an affidavit providing “general background in circumstances where that information might assist [the review court to understand] the issues relevant to the judicial review”: Access Copyright, above at paragraph 20(a).
[45] The “general background” exception applies to non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker. In judicial reviews of complex administrative decisions where there is procedural and factual complexity and a record comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavit that briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categories of evidence that the parties placed before the administrator. As long as the affidavit does not engage in spin or advocacy - that is the role of the memorandum of fact and law - it is admissible as an exception to the general rule.
[46] But “[c]are must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider”: Access Copyright, above at paragraph 20(a).
[29] Justice Stratas went on to state that, even though the Court below in that matter had considered evidence in an affidavit to be familiar to the parties, accurate, disclosed in a timely way and not prejudicial, that this did not make the evidence admissible (at para 51). The test for admissibility of background information exception is as set out in paragraphs 44 to 46 of his reasons.
[30] The Federal Court of Appeal has also held that an affidavit must be premised upon personal knowledge and that its purpose is to adduce facts relevant to the dispute without gloss or explanation. The purpose of an affidavit is not to be confused with the written submissions a party is entitled to make in support of their application (Duyvenbode at paras 2-3). Affidavits must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw negative conclusions (Canadian Tire Corp at paras 9-10; also see Quadrini at para 18).
[31] In Appendix A of these reasons I have set out the specifics of the challenged paragraphs, portions of paragraphs and the exhibits of the Shoan Affidavit which, having regard to the principles above, I have concluded must be struck out and the reasons for this.
[32] It is sufficient to say here that the 82 paragraph Shoan Affidavit is not typical of an affidavit submitted in support of an application for judicial review in order to provide the factual backdrop of events occurring prior to the hearing of the application or useful background information to assist the Court in its understanding of the matter. Such affidavits could, for example, provide a non-controversial description of a complicated regulatory regime in order to position the matter before the Court within that regime and to assist the Court’s understanding of its application. The Shoan Affidavit, while containing some relevant background facts, is much closer in form to a memorandum of argument. Many of the paragraphs contain opinion and argument, the contents of which go far beyond factual background information. Some of the impugned paragraphs also contain information that was not before the decision-maker, the GIC, and are not admissible on that basis.
Issue 1: What is the appropriate standard of review?
[33] The Applicant submits that questions of procedural fairness are not subject to a standard of review analysis and deference. Rather, the Court is to determine the level of fairness required and then, based on that, determine whether a procedure was fair or not (Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 at para 74; Canada (Citizenship and Immigration) v Grandmont, 2009 FC 1211 at para 13; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at paras 102-103; Jogiat v Canada (Citizenship and Immigration), 2009 FC 815 at para 36). The Applicant submits that the standard of review that applies to the GIC’s finding of cause for dismissal in light of the good behaviour standard is that of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 (“Dunsmuir”); Wedge v Canada (Attorney General), [1997] FCJ No 872 (FCTD) (“Wedge”)).
[34] The Respondent submits that the standard of review on questions of procedural fairness is correctness and adds that the nature and extent of the duty of procedural fairness is eminently variable and its content is to be decided in the specific context of each case (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 21 (“Baker”); Re Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 42 (“Re Sound”)). The Respondent agrees that the reasonableness standard applies to the substantive review of the GIC’s decision. In that regard, the question to be addressed is whether the decision fell within a range of possible, acceptable outcomes which were defensible in respect of the facts and the law. As Parliament has not constrained the GIC’s discretion by setting out a precise definition of the requirement that a member of the CRTC hold office during “good behaviour”, this points to a broader range of possible, acceptable outcomes at the GIC’s disposal in addressing whether the Applicant’s appointment should have been terminated for cause (Canada (Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha, 2014 FCA 56 at paras 88-91).
[35] I agree with the Respondent that issues of procedural fairness are reviewed on the correctness standard (Mission Institute v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Re Sound at paras 34, 35 and 39). The concept of procedural fairness is variable and its content is to be determined in the specific context of each case and considering all of its circumstances (Baker at paras 21-22). I also agree with both parties that the standard of review of the GIC’s decision to terminate the Applicant for cause is reasonableness. This was a discretionary decision reached by the GIC in exercising a power that is delegated to it by Parliament (Wedge at para 29; Weatherill v Canada (Attorney General), [1998] FCJ No 58 (FCTD) at paras 26-28 (“Weatherill 1998”); Dunsmuir at paras 51 and 53; Vennat v Canada (Attorney General), 2006 FC 1008 at para 80 (“Vennat”); also see Canada (Attorney General) v Pelletier, 2008 FCA 1 at paras 48 and 55 (“Pelletier 2008”) and Prophet River First Nation v Canada (Attorney General), 2017 FCA 15 at para 30 (“Prophet River”)). A discretionary decision made by the GIC will be afforded a high degree of deference (Prophet River First Nation v Canada (Attorney General), 2015 FC 1030 at paras 46-48, aff’d in Prophet River as above; Peace Valley Land River Association v Canada (Attorney General), 2015 FC 1027 at paras 31 and 68 (“Peace Valley”)).
Issue 2: Did the GIC violate the duty of procedural fairness owed to the Applicant?
Applicant’s Position
[36] The Applicant submits that the process undertaken by the Minister and the GIC’s decision to terminate his appointment as Commissioner violated the rules of procedural fairness that apply to protect the independence of good behaviour appointees to quasi-judicial bodies.
[37] The Applicant notes that the rules of natural justice and procedural fairness extend to all administrative bodies acting under statutory authority (Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at para 14 (“Cardinal”); Baker at para 20; Knight v Indian Head School Division No 19 (Saskatchewan Board of Education), [1990] 1 SCR 653 at 669 (“Knight”); Kane v Board of Governors of the University of British Columbia, [1980] 1 SCR 1105 at 1113 (“Kane”)). The nature and extent of the duty is eminently variable and its content is to be decided in the specific context of each case (Baker at para 21). And, procedural fairness is required to ensure that public power is not exercised capriciously regardless of whether the appointment is “at pleasure” or “during good behaviour”, although the scope of procedural fairness owed is not identical (Dunsmuir at paras 115-116).
[38] The Applicant relies heavily on this Court’s decision in Vennat, including for the proposition that individuals appointed during good behaviour deserve greater procedural protections than individuals appointed at pleasure (also see Keen v Canada, 2009 FC 353 at paras 46-48 (“Keen”)), the latter having been described as an intrinsically precarious appointment (Pelletier 2008 at para 33; Keen at para 48), that the GIC had an obligation to provide a real opportunity to respond, and that it was the responsibility of the GIC, not the Applicant, to provide sufficient procedural safeguards (Vennat at paras 80, 105 and 186). As well, a high degree of good faith is owed to GIC appointees prior to their sanctioning, including a requirement to be honest, reasonable, candid and forthright (Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10 at paras 86-96 (“Potter”)).
[39] The Applicant submits that the duty of fairness in this case required that he be afforded an individualized inquiry, that the Minister and GIC were required to act fairly and transparently and that he be provided with clear reasons or analysis for the GIC’s decision.
[40] In that regard, the Applicant submits that the GIC erred as it failed to engage in an individualized inquiry into the allegations against him. This is an inquiry with some degree of autonomy in researching information that contemplates the person facing removal from office and which must shed light on the specific conduct of the affected individual (Vennat at paras 165-166, 169, 178-179). The decisions in Wedge and Weatherill v Canada, [1999] FCJ No 787 (FCTD) (“Weatherill 1999”) also support this view as does Keen (at paras 54-57). Further, no inquiry was held under s 69 of the Judges Act, RSC 1985, c J-1 (“Judges Act”) in this case.
[41] The Applicant submits that he was provided with only notice that the Minister was considering making a recommendation of termination to the GIC and an opportunity to make only initial submissions. No further dialogue or independent inquiry was engaged and he was not provided with adequate information about the exact grounds upon which it was believed that he lacked good behaviour. Further, that many of the concerns raised were “stale dated” as they referred to alleged events that pre-dated the current Minister’s appointment and were deemed by the previous Minister to be insufficient to warrant any action.
[42] The Applicant also takes issue with the timing of the GIC’s decision. Specifically, that a meaningful inquiry was not possible until the related judicial reviews were concluded. Although he had requested that the Minister’s process not proceed until those matters were concluded, his request in this regard, as well as his request for procedural safeguards, were ignored. The Applicant submits that the judicial review pertaining to the harassment complaint was at the core of the GIC’s decision and the Chairperson’s decision in that regard was quashed shortly after the GIC rendered its decision. Further, the GIC’s decision was a collateral attack on the judicial review proceeding before Justice Zinn. The GIC’s hasty decision operated as a de facto extension of the “witch hunt” conducted against him.
[43] With respect to transparency and fair play, the Applicant submits that the Minister and GIC were required to meet a high standard of justice and to observe transparency and fair play but failed to do so (Vennat at para 221). In that regard, his requests for safeguards and to meet with the Minister were ignored, he was provided with merely a summary of the allegations against him and no indication as to the extent, or whether his response was considered and he was not provided with any clear reasons as to the basis of the GIC’s decision to terminate his appointment for cause. The Order-in-Council referred only to conduct fundamentally incompatible with his position, a standard not defined in the CRTC Act or any applicable legislation. As such, the Applicant is left without any real understanding as to the basis for his termination.
Respondent’s Position
[44] The Respondent submits that the process undertaken by the GIC satisfied the duty of fairness that was owed to the Applicant.
[45] As to the content of the duty of procedural fairness owed, the Respondent submits that the Applicant, as a GIC appointee, was entitled to notice and an opportunity to be heard (Wedge at para 22; Canada (Attorney General) v Pelletier, 2007 FCA 6 at para 49 (“Pelletier 2007”); Pelletier v Canada (Attorney General), 2005 FC 1545 at para 87, aff’d in Pelletier 2007 as above (“Pelletier 2005”); Pelletier 2008 at para 43; Keen at para 57). In reviewing the process followed by the GIC in past termination cases, this Court has recognized that the GIC has significant leeway in determining what means will achieve the procedural fairness objective (Vennat at para 148) and is not required to follow complex, costly procedures that are incompatible with its nature (Pelletier 2005 at para 86). Termination cases are not adjudicative processes to which full, formal, court-like procedures apply (Wedge at para 24). The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations (Baker at para 33; Pelletier 2007 at para 36) which must be kept in mind when reviewing prior jurisprudence concerning the termination of GIC appointees.
[46] As to the right to notice, the Minister advised the Applicant in writing that his office was in jeopardy and the reasons why this was