Shoan v. Canada (Attorney General)

Shoan v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-05-07
Neutral citation
2018 FC 476
File numbers
T-796-17
Notes
Digest
Decision Content
Date: 20180507
Docket: T-796-17
Citation: 2018 FC 476
Ottawa, Ontario, May 7, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
BALRAJ SHOAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 18.1 of the Federal Courts Act, RSC 1985, c F-7, for judicial review of the decision of the Governor in Council [GIC], dated May 4, 2017 and promulgated by Order in Council, PC 2017-456 [Decision], to terminate the Applicant’s appointment as a member of the Canadian Radio-television and Telecommunications Commission [CRTC] for cause.
II. BACKGROUND
[2] The Applicant was appointed as the CRTC Commissioner for Ontario by the GIC in June 2013. His appointment was effective July 3, 2013 and was to last for five years: PC 2013-809, as amended by PC 2013-838. Pursuant to s 3(2) of the Canadian Radio-television and Telecommunications Commission Act, RSC 1985, c C-22 [CRTC Act], he was to hold office “during good behaviour.”
[3] This is the second time the termination of the Applicant’s appointment has been before this Court. In Shoan v Canada (Attorney General), 2017 FC 426 at para 135 [Shoan #1], Justice Strickland reviewed the Applicant’s first termination for cause, dated June 23, 2016, and held that she was not able to determine, based on the record before her, whether the GIC had afforded the Applicant sufficient procedural fairness when terminating his appointment. Justice Strickland allowed the application for judicial review and quashed the GIC’s decision. The effect was to reinstate the Applicant to his position when Shoan #1 was rendered on April 28, 2017.
[4] Justice Strickland’s reasons in Shoan #1 formed part of the record before the GIC in the Decision under review in this application. Justice Strickland laid out the background to her decision as follows:
[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”)).
[5] As explained in Shoan #1, the Applicant’s first termination for cause was based on four concerns the Minister of Canadian Heritage [Minister] had disclosed in a letter to the Applicant [Minister’s Letter], and accompanying summary, dated February 26, 2016: negative public statements the Applicant had made about the CRTC; the release of confidential information by the Applicant; inappropriate contact the Applicant had with CRTC stakeholders; and, the effect of the Applicant’s actions on the internal operations of the CRTC. Justice Strickland was unable to conclude what reliance, if any, was placed by the GIC on a report finding a complaint of harassment laid against the Applicant had merit [Harassment Report] and related concerns. In Shoan v Canada (Attorney General), 2016 FC 1003, a decision subsequent to the Applicant’s first termination, Justice Zinn found the Harassment Report to be deeply flawed, and determined the related confidentiality concerns did not justify a confidentiality order by the Court. Justice Strickland also held she was unable to understand what consideration the Minister and the GIC gave to the Applicant’s assertion that he alone was not responsible for the lack of collegiality in the CRTC. As a result, Justice Strickland concluded that the Applicant was “potentially” denied procedural fairness and she allowed the application for judicial review. See Shoan #1, above, at para 142.
[6] On May 4, 2017, six days after Justice Strickland’s decision in Shoan #1, and without the Minister communicating with the Applicant during the intervening period, the GIC terminated the Applicant’s appointment for cause for a second time. In the Decision, the GIC listed two separate grounds for the Applicant’s termination: inappropriate contact with CRTC stakeholders and a lack of recognition of and disregard for the impact of that contact on the reputation and integrity of the CRTC; and, the Applicant’s refusal to respect internal CRTC processes and practices for meeting its obligations under the Access to Information Act, RSC 1985, c A-1 [Access to Information Act] and his negative public statements about the CRTC. In the Minister’s Letter, and supporting summary, these grounds had been previously disclosed to the Applicant.
[7] With respect to the first ground, the Minister’s Letter expressed concerns that the Applicant had inappropriate contact with CRTC stakeholders in July and August 2015. The Minister said that, on these occasions, the Applicant met alone with CRTC stakeholders whose applications were before the CRTC, and he did so without following CRTC practices. The Applicant’s public tweet about one meeting raised concerns from an affected party that he had inappropriately met ex parte with another party to an application then before the CRTC. The other meeting raised similar concerns about perceptions of fairness and neutrality.
[8] With respect to the finding that the Applicant made negative public statements about the CRTC, the Minister’s Letter noted that in April 2015, the Applicant promoted a personal statement, via his Twitter account, about a judicial review application he commenced against the CRTC. The Minister was of the opinion that the statement was critical of the CRTC and its Chairperson, and led to negative media attention about the CRTC. In October 2015, the Applicant again promoted a personal statement, via his Twitter account, relating to a subsequent legal challenge he commenced against the CRTC. Again, the Minister found the statement was critical of the CRTC and it led to negative media attention. The Minister also noted the Applicant did not respect internal processes and procedures designed to allow the CRTC to meet its statutory requirements under the Access to Information Act.
III. DECISION UNDER REVIEW
[9] The Decision reads in full 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, the submissions made by Raj Shoan on March 14, 2016 and the material enclosed with those submissions;
Whereas, in light of the September 2, 2016 decision of Mr. Justice Zinn of the Federal Court in the matter of Shoan v. Canada (Attorney General), docket T-668-15, the Governor in Council has excluded from consideration the report into the complaint of harassment filed against Raj Shoan on March 17, 2015 and the sole grounds on which the Governor in Council relies set out below;
Whereas the Governor in Council has concluded that Raj Shoan’s actions with respect to inappropriate contact with CRTC stakeholders and his lack of recognition of and disregard for the impact of that contact on the reputation and integrity of the CRTC (the inappropriate contact ground) 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;
And whereas, independent of the inappropriate contact ground, the Governor in Council has concluded that Raj Shoan’s responses related to his refusal to respect internal CRTC processes and practices for meeting its obligations under the Access to Information Act and his negative public statements about the CRTC 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 Canadian Radio-television and Telecommunications Commission for the Ontario region, effective May 5, 2017.
IV. ISSUES
[10] The Applicant submits that the following issues arise in this application:
Did the process adopted by the GIC to terminate the Applicant’s appointment a second time breach the duty of fairness owed to him?
Is the GIC’s Decision to terminate the Applicant’s appointment unreasonable?
What is the appropriate remedy?
V. STANDARD OF REVIEW
[11] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[12] The Applicant submits that questions of procedural fairness are not subject to the standard of review analysis. Instead, a reviewing court determines the level of fairness required and whether the procedure followed was fair. See Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 at para 74 [Moreau-Bérubé]. The Respondent argues issues of procedural fairness are reviewable on the correctness standard. The Respondent notes the nature and extent of the duty of procedural fairness is variable, and the content is to be decided in the specific context of each case. See Wsanec School Board v British Columbia, 2017 FCA 210 at paras 22-23, Gupta v Canada, 2017 FCA 211 at paras 29-30.
[13] While the distinction may be relevant in particular circumstances, it is not clear to me how the Applicant’s submission differs from conventional correctness review. Since Moreau-Bérubé, “developments in the common law principles of judicial review” have clarified that procedural issues are reviewed under the standard of correctness. See Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa], and Mission Institution v Khela, 2014 SCC 24 at para 79. Admittedly, the Federal Court of Appeal has described the standard of review on procedural issues as “currently unsettled” and catalogued instances where some deference was afforded to decision-makers on procedural points. See Bergeron v Canada (Attorney General), 2015 FCA 160 at paras 67-71. Here, however, the issues of whether the Applicant received adequate notice and an opportunity to be heard are issues of procedural fairness that do not suggest a margin of deference is required and will be reviewed for correctness. No deference is owed to the decision-maker when applying the correctness standard. Rather, a reviewing court will undertake its own analysis and if it disagrees with the decision-maker, the court will substitute its view of the correct answer. See Dunsmuir, above, at para 50.
[14] In Shoan #1, above, at para 35, Justice Strickland held that the GIC’s decision to terminate the Applicant’s appointment for cause was reviewable under the reasonableness standard. The parties also agree that the reasonableness standard should apply here. See Wedge v Canada (Attorney General), (1997), 4 Admin LR (3d) 153 at para 29 (FCTD) [Wedge], and Dunsmuir, above, at para 53. I see no reason to disturb this holding. The GIC’s decision to terminate the Applicant’s appointment for cause will therefore be reviewed for reasonableness.
[15] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[16] The following provisions of the CRTC Act are relevant in this application:
Commission established
Établissement
3 (1) There is established a commission, to be known as the Canadian Radio-television and Telecommunications Commission, consisting of not more than 13 members, to be appointed by the Governor in Council.
3 (1) Est constitué le Conseil de la radiodiffusion et des télécommunications canadiennes, composé d’au plus treize membres, nommés par le gouverneur en conseil.
Tenure
Mandat
(2) A member shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed at any time by the Governor in Council for cause.
(2) La durée maximale du mandat est de cinq ans pour tous les conseillers. Ceux-ci occupent leur poste à titre inamovible, sous réserve de révocation motivée de la part du gouverneur en conseil.
VII. ARGUMENT
A. Applicant
(1) Procedural Fairness
[17] The Applicant submits that the process employed in the Minister’s recommendation to the GIC and the Decision fell short of the level of fairness he was owed as a “good behaviour” appointee serving on a quasi-judicial administrative tribunal. He says that the Minister and the GIC failed to engage in an individual assessment, did not fairly and transparently articulate the reasons for the Decision, and did not provide a meeting to discuss the allegations against him or explain why such a meeting was unnecessary.
[18] The Applicant points to the foundational cases on procedural fairness to establish that the GIC owed him a duty of fairness when deciding to terminate his appointment. There is “a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at 653. This duty “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], quoting Knight v Indian Head School Division No 19, [1990] 1 SCR 653 at 682.
[19] The Applicant notes that the Supreme Court of Canada has identified the importance of the decision to the individual or individuals affected as a relevant factor in determining the level and content of the duty of fairness. See Baker, above, at para 25. When an individual’s profession or employment is at stake, a high degree of fairness is required. See Kane v University of British Columbia, [1980] 1 SCR 1105 at 1113. The Applicant submits that these concerns are heightened in the context of his appointment to a quasi-judicial tribunal and because his termination for a second time is a unique circumstance that has had a profound personal and professional impact on him.
[20] The Applicant submits that, while a duty of fairness is owed to both “at pleasure” and “good behaviour” appointees, the scope of fairness owed is not identical in each case. See Dunsmuir, above, at paras 115-16. In Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10 at paras 86-98, the Supreme Court also recognized that GIC appointees are entitled to good faith before they are sanctioned. The Applicant says that officials appointed during good behaviour are owed greater procedural protection than officials appointed at pleasure. See Vennat v Canada (Attorney General), 2006 FC 1008 at para 105 [Vennat]. In the context of judges appointed during “good behaviour,” this enhanced procedural protection flows from the necessity of judicial independence. See Keen v Canada (Attorney General), 2009 FC 353 at paras 46-47 [Keen]. In comparison, at pleasure appointments have been described as “intrinsically precarious”: Pelletier v Canada (Attorney General), 2008 FCA 1 at para 33, quoted in Keen, above, at para 48.
[21] Since the CRTC Act does not lay out a scheme for the removal of members, the GIC has discretion over how to meet the duty of fairness. Nevertheless, the GIC is obliged “to give the affected party a real opportunity to respond to the reasons” for dissatisfaction: Vennat, above, at para 80. The duty to provide sufficient procedural fairness rests with the GIC, and it is not the Applicant’s responsibility to request procedural safeguards. See Vennat, above, at para 186. The Applicant says that, despite this requirement, his requests for safeguards were ignored, even after Justice Strickland’s decision in Shoan #1.
(a) Individualized Inquiry
[22] The Applicant also submits that he was denied the individualized inquiry he was entitled to because he was given no notice before his second termination and therefore could not know the specific case he had to meet.
[23] The Applicant says that the Minister made no independent investigation into the facts presented to the GIC. Conceptually, the Applicant submits that the right to a personalized inquiry more properly engages his right to be heard, as it implicates elements of inquisition and analysis that require consultation with the individual affected by a decision. Regardless, this inquiry must be conducted with a degree of autonomy which results in more than a review and “must, in short, make it possible to shed light on the specific conduct of the person affected”: Vennat, above, at para 178. The Applicant says that the obligation to conduct a personalized inquiry continues “even if [the] facts appear to have been established generally in a fact-finding report, and the employee has a right to respond”: Vennat, above, at para 166. He says that the complexity of the issues surrounding his dismissal and the unreliability of the information provided to the Minister demanded a personal inquiry of the sort illustrated by Wedge, above, and Weatherill v Canada (Attorney General), [1999] 4 FCR 107.
[24] The Applicant also submits that the personalized inquiry he was owed required consideration of, and an explanation for, why his position about his participatory rights was dismissed. He says this did not occur. In Keen, Justice Hughes held that the applicant had been appointed at pleasure. However, if she had been appointed on good behaviour as she alleged, the Minister of Natural Resources’ failure “to enter into further dialogue or hold some form of independent inquiry [would have] demonstrate[d] a clear lack of fairness.” See Keen, above, at para 57. The Applicant notes that, after he responded to the Minister’s Letter, the Minister conducted no further dialogue with him before his first or second termination.
[25] The Applicant also says that the record demonstrates that, at least with respect to the allegation that his conduct had led to the improper release of confidential information, the Minister conducted no independent inquiry into the facts. The Minister’s Letter cited three instances that gave rise to this concern: the release of personal information of an individual as part of the Applicant’s application for judicial review of the Harassment Report; documents that the Attorney General claimed were subject to solicitor-client privilege filed in the Federal Court of Appeal as part of the Applicant’s application for judicial review of the CRTC Chairperson’s panel assignments; and the disclosure of personal information by the Applicant that had led to a complaint against the CRTC under the Privacy Act, RSC 1985, c P-21 [Privacy Act]. The Applicant notes that these allegations were in the materials placed before the GIC for both of his terminations. He says that any investigation would have revealed to the Minister that the allegations were unfounded. In Shoan v Canada (Attorney General), 2016 FC 1003 at para 149, Justice Zinn concluded that nothing in the matter justified a confidentiality order. The Applicant also says that he provided the Minister with the Federal Court of Appeal’s order rejecting the Attorney General’s argument that the Applicant breached solicitor-client privilege. Also, the Applicant’s own investigation into the Privacy Act complaint, conducted after Justice Strickland’s decision in Shoan #1 was rendered, led to the CRTC Senior General Counsel confirming to him that the Office of the Privacy Commissioner had concluded that the complaint was “not well-founded.” The Applicant submits that this instance in particular shows that the Minister did not conduct an individualized inquiry to independently determine the validity of the complaint before it was placed before the GIC and that she had a closed mind regarding his possible innocence.
[26] The Applicant also notes that the Order in Council containing the Decision refers to three grounds to justify his termination but it does not articulate what information was relied on in making the Decision. Only the Harassment Report is specifically referred to as excluded. In these circumstances, the Applicant says that he is left guessing which allegations the GIC relied on when making the Decision.
[27] The Applicant submits that the haste with which he was removed from his position for a second time indicates that the Minister and the GIC operated with a closed mind and he could not have altered the Decision. Factors indicating the Minister’s closed mind include: the Minister’s failure to speak with him before his first termination; the complete lack of opportunity to change or affect his second termination; the Minister’s disregard for concerns the Applicant raised about procedural fairness, discrimination and potential bigotry; and the lack of further inquiry into a record derived from an unfair and deficient process. The Applicant says this process failed to provide the level of fairness required to remove him from his appointment as a good behaviour appointee.
(b) Clear and Transparent Reasons
[28] The Applicant submits that the Minister and the GIC failed to provide him with clear and transparent reasons. The Applicant says he was provided with a summary of allegations that were provided to the Minister, but he was not given an indication as to whether his responses were considered, or to what extent they were considered. The Applicant states that when he made requests for safeguards in the process he was ignored, including when he asked to meet with the Minister, and when he raised concerns respecting conduct at the CRTC that had impacted his ability to fulfill his duties.
[29] The Applicant also notes that, following Shoan #1, he was not provided information as to how or whether the GIC would engage further in the decision-making process. He was left unaware of the process undertaken.
(c) Opportunity to be Heard
[30] The Applicant says he was deprived of an opportunity to be heard because he was not offered a meeting with the Minister or her staff prior to the Decision, and he was not advised why the Minister or the GIC deemed such a meeting unnecessary. The Applicant argues that the Court has been clear that he was entitled to such a meeting to ensure procedural fairness or, at least, he was entitled to know why such a meeting was deemed unnecessary. In Shoan #1, above, at para 123, Justice Strickland held that
… if the Minister was of the opinion that the matters raised by the Applicant in his [March 14, 2016] Response did not warrant a meeting with her or her officials or further inquiry into the matters alleged, such as the Applicant’s assertion that the lack of collegiality was not attributable in whole to his actions, that the Chairperson exhibited a hostile, negative animus towards him, and, that it would be premature for the GIC to proceed prior to a decision on judicial review concerning the Harassment Report being rendered by this Court, then the duty of procedural fairness required her to advise the Applicant of this and, at least on a summary basis, why she reached that conclusion.
The Applicant argues he was deprived of an opportunity to be heard, which makes the GIC’s decision procedurally unfair.
[31] The Applicant submits there were significant facts he would have discussed in a meeting with the Minister that were relevant to the GIC’s Decision, including his assertion that the lack of collegiality within the CRTC was not attributable to his actions. He argues these items are in addition to the matters raised during the administrative investigation and in his March 14, 2016 [Response] and June 14, 2016 letters.
(2) Reasonableness
[32] The Applicant submits the Decision is unreasonable because it is based upon a wrong principle in respect of “good behaviour” and the threshold of “cause” was made perversely without regard to the evidence. He argues a contextual approach must be applied. In Wedge, above, at para 30, the Court held that
In order to determine whether a holder of public officer meets the standard of good behaviour necessary to remain in office, Cabinet, that is, the Governor in Council, must examine the conduct of that individual to assess whether it is consistent with the measure of integrity the Governor in Council deems necessary to maintain public confidence in federal institutions and the federal appointment process.
See also Wedge, above, at para 32.
[33] In the employment context, the Supreme Court of Canada has held a “contextual approach” is required to determine whether misconduct warrants summary dismissal of an employee, including an examination of the circumstances surrounding the conduct, as well as its nature or degree. The principle of proportionality must underlie the approach. See McKinley v BC Tel, 2001 SCC 38 at paras 34 and 53. The Applicant maintains that, considering the nature of his employment, and the quasi-judicial duties that he held, the GIC was required to undertake a contextual analysis. Any decision must be proportionate to the alleged misconduct.
[34] The Applicant argues that the Court’s finding in Shoan #1, above, which addressed whether the GIC’s first decision to terminate the Applicant was reasonable, should not be relied upon here because Justice Strickland’s assessment is obiter dicta, and not binding, and because the Court’s comments include errors of fact. The Applicant submits the following findings were errors of fact: the Applicant did not follow CRTC practices, or consult with CRTC counsel; Shomi was a party to an application before the CRTC; and Shomi’s activity was a matter under consideration by the CRTC.
[35] The Applicant argues that the record relied upon by the GIC is unreliable because it was the result of a process described by Justice Strickland in Shoan #1 as procedurally unfair. In addition, no steps were taken by the GIC, between April 28, 2017, when Justice Strickland’s decision in Shoan #1 was issued, and May 4, 2017, the date of the GIC’s Decision, to re-assess the context or remedy the procedural flaws. He argues that any decision based upon the record is therefore unreasonable.
[36] The Applicant also argues the Decision is made without regard to the material he presented. The Applicant points out that he raised concerns about inaccurate information contained in the Minister’s Letter in his March 14, 2016 Response, but no response or inquiry was conducted by the Minister. He argues that the Minister’s concerns with respect to public statements made by the Applicant, his contact with stakeholders, and concerns about the internal operations of the CRTC, are inaccurate, speculative and cannot form the basis of a rational finding of cause for termination in the circumstances. The Applicant submits it is unreasonable to conclude that any of these grounds justify cause for dismissal.
[37] With respect to public statements, the Applicant states there was no evidence before the GIC that the Applicant’s two impugned statements had an impact on public or stakeholder confidence. He argues that “none” of the media articles included with the Minister’s Letter challenge the CRTC’s ability to fulfill its mandate. He maintains that the impugned statements were in respect of judicial proceedings, and were not critical of the CRTC. Rather, he spoke of perceived changes in the decision-making process that, in his view, made vulnerable the independence of the CRTC Commissioners.
[38] With respect to contact with CRTC stakeholders, the Applicant argues he was open about the meetings and followed both CRTC protocols and the guidelines of the Conflict of Interest and Ethics Commissioner. In the case of Mr. Byrne, of Byrnes Communications, the Applicant obtained confirmation in writing that an open file before the CRTC would not be discussed at the meeting, and he met with Mr. Byrne in his capacity as a consultant for other radio operators; the meeting was “unrelated” to Mr. Byrne’s interests as a radio broadcaster. With respect to the Applicant’s meeting with a representative of Shomi, he argues that when the meeting was held there was no active application before the CRTC that involved Shomi, and therefore no potential conflict existed for the meeting. The Applicant also states that, because Shomi was an unregulated service and operated pursuant to an exemption order under the Broadcasting Act, SC 1991, c 11, it was a separate legal entity from the carriers subject to the application noted by the Minister. He argues that CRTC decisions form part of the GIC record, and none of the applications were examined by the Commissioners in any respect. The applications in question were returned to the applicants, unexamined, because of changes in circumstances and facts.
[39] With respect to internal operations of the CRTC, the Applicant maintains he never refused to respond to a request under the Access to Information Act. On August 10, 2015 the CRTC received a request for “All emails, memos, attachments exchanged between the CEO, Secretary General, and Commissioners regarding travel, hospitality and conference expense allocations for Commissioners related to fiscal year 2015-2016. Timeframe June 1, 2014 – June 30, 2015.” The Applicant stated his intention to satisfy the request pending the resolution of certain legal concerns. He argues his concerns with respect to the fair disclosure of the materials requested, and the decision-making process associated with the request, were valid.
[40] The Applicant argues that if there were legitimate concerns held by the Minister and the GIC, the concerns must be considered in the full context of his behaviour, and the importance of this employment to him. None of the concerns expressed strike at the core of the employment relationship. The decision must provide a proportionate response, and not exceed a rational or logical consequence.
(3) Remedy
[41] The Applicant seeks an Order quashing and setting aside the Decision of the GIC, and declaring that Orders in Council P.C. 2013-809 and P.C. 2013-838, dated June 13 and 21, 2013, remain fully in force. The Applicant also seeks an Order declaring that he is entitled to an order from the GIC that accounts for his lost service time as Commissioner and provides for an additional term as Ontario Commissioner for a commensurate period according to the same terms and conditions of his initial terms. The Applicant also seeks costs on a solicitor-client basis, and such further and other relief as this Court deems just.
B. Respondent
(1) Procedural Fairness
[42] The Respondent recognizes that procedural fairness is owed to a GIC appointee who holds office during good behaviour and who is facing termination for misconduct. The Respondent argues the process that led to the May 4, 2017 termination of the Applicant’s appointment was procedurally fair. The Applicant was afforded adequate notice of the allegations against him, he was given a meaningful opportunity to respond, and he was afforded a fair and impartial decision, which allows him to understand the basis for it. The Respondent also submits that the GIC addressed the procedural concerns raised by Justice Strickland in Shoan #1 by excluding from consideration the grounds to which those procedural concerns related.
[43] To establish the context of the duty of fairness owed to the Applicant, the Respondent points to cases where the Court has reviewed terminations of GIC appointees. The Court has recognized that the GIC “has significant leeway in determining what means will achieve the procedural fairness objective”: Vennat, above, at para 148. The GIC is not required to “follow complex, costly procedures that are incompatible with that body’s nature”: Pelletier v Canada, 2005 FC 1545 at para 86. Termination cases are not adjudicative processes to which full, formal, court-like procedures apply: Wedge, above, at para 24. The content of the duty of fairness is at the “lower level” and is comprised of: “notice to the extent that he was informed of the basis of the Minister’s concerns and that his appointment was potentially at risk; an opportunity to meaningfully respond and to present his case fully and fairly; and, to receive a fair and impartial decision allowing him to understand the basis for it”: Shoan #1, above, at paras 59 and 91.
(a) Notice
[44] The Respondent acknowledges the Applicant was entitled to notice, including to be informed of the sanction being considered against him, the possibility of removal, and adequate information setting out the ground