Pelletier v. Canada (Attorney General)

Pelletier v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2005-11-18
Neutral citation
2005 FC 1545
File numbers
T-668-04
Notes
Digest
Decision Content
Date: 20051118
Docket: T-668-04
Citation: 2005 FC 1545
Ottawa, Ontario, the 18th day of November 2005
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
JEAN PELLETIER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] On March 30, 2004, the applicant Jean Pelletier filed before this Court an application for judicial review of an order of the Governor General in Council dated March 1, 2004, bearing number P.C. 2004-158 ("termination order"). This order, adopted pursuant to subsection 105(5) of the Financial Administration Act, R.S.C. 1985, c. F-11 (the FAA), terminated the applicant's appointment at pleasure as Chair of the Board of Directors of Via Rail Canada Inc. ("VIA Rail").
[2] In the conclusions of his memorandum of fact and law, the applicant is asking the Federal Court for the following:
(a) An order in the nature of certiorari, quashing or setting aside the termination order;
(b) An order declaring the full force and effect of the appointment by the Governor General in Council dated July 31, 2001, and bearing number P.C. 2001-1294, appointing him as Chair of the Board of Directors of VIA Rail ("appointment order"), until the end of its term on July 31, 2006.
ISSUES
- What is the scope of the duty of procedural fairness on the Governor General in Council when she chooses to dismiss a person appointed at pleasure?
- Was this duty fulfilled toward the applicant?
- If there was a breach of procedural fairness, what remedy must be granted in this case?
FACTUAL BACKGROUND AND THE PARTIES' EVIDENCE
[3] This application involves only the following facts.
1. Generally
[4] The applicant was the Chief of Staff at the Office of the Prime Minister of Canada from November 1993 until May 2001. On July 31, 2001, the appointment order appointed him to hold office at pleasure for a five-year period as Chair of the Board of Directors of VIA Rail. The Governor General in Council's power to make appointments is provided under subsection 105(5) of the FAA, c. F-11, which reads as follows:
105 (5) Each officer-director of a parent Crown corporation shall be appointed by the Governor in Council to hold office during pleasure for such term as the Governor in Council considers appropriate. [emphasis added]
105 (5) Les administrateurs-dirigeants d'une société d'État mère sont nommés à titre amovible par le gouverneur en conseil pour le mandat que celui-ci estime indiqué. [je souligne]
[5] On September 1, 2001, the applicant took office at VIA Rail, as appears from an agreement signed on November 7, 2001, between the applicant and the Crown corporation. This contract is included in the respondent's record.
[6] In his affidavit dated April 28, 2004, Mr. Pelletier said that he had [translation] ". . . always fulfilled his duties to the full satisfaction of the Government of Canada and VIA Rail".
2. Myriam Bédard's letter dated February 13, 2004
[7] Myriam Bédard, an Olympic medalist, was employed by VIA Rail from January 2001 until January 18, 2002. On February 13, 2004, Ms. Bédard sent a letter to the Office of the Prime Minister of Canada, Paul Martin, in which she stated that in 2001, she was first [translation] ". . . sent to Groupaction as a trainee . . .", then [translation] ". . . forced to resign . . ." by the [translation] "management of VIA Rail Canada", on January 11, 2002. In that letter she also made many remarks about the predominant atmosphere at VIA Rail, referring to the circumstances surrounding the end of her employment. Further, she referred specifically to the applicant by implicating him. She stated that she had given him a project ensuring savings of 5 million dollars for VIA Rail's marketing program. She ended her letter explaining that she wished to resume her position at VIA Rail. This letter is an exhibit in the applicant's record.
[8] On April 8, 2004, a report ("investigation report") filed by an arbitrator appointed by Paul Côté, then Chair and acting President and Chief Executive Officer of VIA Rail, determined rather that Ms. Bédard had voluntarily left her employment. This report concluded the following with respect to Mr. Pelletier's role in the departure of Ms. Bédard from VIA Rail:
The case at hand represents a tragedy of enormous proportions. Mr. Pelletier was a respected public figure, who was accused by Ms. Bédard in February of 2004 of being an instrument in her alleged forced resignation two years earlier, in January of 2002. This report must conclude that Mr. Pelletier had no involvement in Ms. Bédard's departure from Via-Rail.
This report and its conclusions were not contested judicially by the parties involved. The report is therefore final.
3. Correspondence between the applicant and Alexander Himelfarb
[9] The respondent's evidence includes an exchange of correspondence between the Privy Council Office and Mr. Pelletier. There are two letters.
[10] The first letter, signed by the applicant, is dated February 23, 2004, and is addressed to Alexander Himelfarb, Clerk of the Privy Council and Secretary to the Cabinet. This letter refers to the publication of an article appearing in the National Post that same morning, which suggested that sanctions could be brought against Mr. Pelletier. In the letter, the applicant called for a meeting with Mr. Himelfarb and [translation] ". . . senior officials that Mr. Himelfarb deemed appropriate to have by his side" in order to be heard before such sanctions were taken. Mr. Pelletier states in his letter that he is available to testify under oath [translation] ". . . at any time in this sponsorship case and in all appropriate proceedings", while reiterating that he had already informed the Prime Minister's Chief of Staff of his availability in 2002. He also asked Mr. Himelfarb to confirm that his legal fees would be assumed by the Government of Canada.
[11] The second letter, dated February 26, 2004, is Mr. Himelfarb's reply to the applicant's letter dated February 23. In his letter, Mr. Himelfarb pointed out to the applicant that the Government of Canada had not yet announced any disciplinary action involving him and responded to Mr. Pelletier's question regarding solicitor's fees. The letter does not state that disciplinary action is planned against the applicant, or that the Governor General in Council was dissatisfied with him.
4. The interview and article by La Presse
[12] Also on Thursday, February 26, journalist François Cardinal, from the newspaper La Presse, met Ms. Bédard regarding the allegations made by her in her letter to the Prime Minister dated February 13, 2004. The same day, the applicant also gave an interview to the journalist.
[13] The next day, Friday, February 27, 2004, the newspaper Le Soleil (affiliated with the newspaper "La Presse") published an article ("article by La Presse")entitled "Victime du scandale des commandites" ["Victim of the Sponsorship Scandal"] in which the journalist quoted several statements by the applicant in response to Ms. Bédard's allegations. Other comments by the applicant concern Ms. Bédard personally. I reproduce here the relevant passages from the article by La Presse:
[translation]
Victim of the Sponsorship Scandal
Olympic medalist Myriam Bédard says that she was forced to resign from VIA Rail.
In a letter sent to Prime Minister Paul Martin on February 13, the former bi-athlete criticized the "unethical atmosphere that reigned in the marketing department of Via-Rail, where she had been employed since January 2001. Stating that she was not a "thief" or a "criminal", she says that "she dug her own grave" by working honestly with the railway company.
When he was Chair of VIA's Board of Directors, Jean Pelletier characterized it all as "lies". The Office of the Prime Minister, Paul Martin, stated that the allegations were being taken "very seriously" . . .
Marc Lefrançois, the President and Chief Executive Officer of Via, who was suspended by Mr. Martin this week following the sponsorship scandal, also denied the facts stated by Ms. Bédard. . .
Mr. Pelletier as well as Mr. Lefrançois claimed that Myriam Bédard was taking advantage of the scandal for her personal gain. "She wants to take advantage of the situation, stated Mr. Pelletier. . . . She is lying shamelessly.
"I do not want to be mean," he added. "This is a poor girl who deserves pity, who doesn't have a spouse, as far as I know. She is struggling as a single mother with economic responsibilities. I pity her, in the end." . . .
Mr. Lefrançois refused to say why Ms. Bédard was no longer working for VIA Rail. But according to Jean Pelletier's version of the facts, she was simply no longer valued by her supervisors.
"What they tell me is that this person did not fit in with the team," he stated. "It was not working at all. She criticized what her boss was doing. She had her own ideas . She was told that if she was not happy, she might be more comfortable at an advertising agency."
"But you know" Mr. Pelletier continued "Olympic medalists are people who find it difficult after being acclaimed at the Olympics, when they find themselves back in the real world. It's not easy to be a regular person, for these people who have been in the spotlight."
In that same article, other comments by Ms. Bédard are reported. She says that she was threatened, she witnessed wrongdoings, and gives her own version of the facts regarding her departure from VIA in January 2002.
[14] In his affidavit, the applicant justifies the statements that he made about Ms. Bédard. He explained that his comments were issued "so that the journalist would not be too hard on Myriam Bédard in the article that he was about to write". Relying on excerpts from the investigation report, the respondent's counsel suggested that Mr. Pelletier was instead trying to avoid having his comments result in disciplinary action. The audio cassette filed into evidence by the applicant corresponds essentially to the statements attributed to the applicant in the La Presse article. However, the article did not mention the fact that on many occasions during the interview, Mr. Pelletier said that he was trying to spare her, and joked about Ms. Bédard, trying to downplay the seriousness of the allegations. The conversation ended as follows:
[translation]
Jean Pelletier: Do not be too hard with the comments that I am making about her, because I do not want to hurt her, but I'll tell you quite frankly that, uh, she is exaggerating quite a bit. (laughter).
François Cardinal: Fine. Okay, Mr. Uh . . .
Jean Pelletier: I pity her, in the end.
4. The conversation of the representatives of the Privy Council Office on Friday, February 27, 2004
[15] The day that the article was published, a telephone conversation took place between Mr. Yves Côté and the applicant. According to Mr. McCutcheon's affidavit dated May 27, 2004, Mr. Yves Côté is counsel and legal advisor for the Clerk of the Privy Council and Secretary to the Cabinet.
[16] The applicant's affidavit gives a less detailed account than that of Mr. McCutcheon. There is no significant contradiction between the two affidavits, which do not mention the length of the telephone conversation.
[17] According to the applicant, the purpose of Mr. Côté's call was to verify if the statements reported in the article by La Presse had actually been made. The applicant said to Mr. Côté that a directive had just been issued to publish a statement of apology, and that that could be verified with the Director of Public Affairs of VIA Rail.
[18] The respondent's account is as follows. Around 3:15 p.m., Mr. Himelfarb directed Mr. Yves Côté and Mr. McCutcheon to call the applicant in order to get his explanations and comments regarding [translation] "the incident reported in an article published in the newspaper La Presse".
[19] The first call was made around 3:15 p.m. by Mr. Côté, on speaker phone and in the presence of Mr. McCutcheon. According to Mr. McCutcheon, Mr. Pelletier's administrative assistant told Mr. Côté that the applicant was absent, while specifying that he would be able to return the call promptly.
[20] The applicant returned Mr. Côté's call five minutes later, around 3:15 p.m.. Mr. Côté then introduced himself and mentioned the presence and the title of Mr. McCutcheon. The applicant said that he remembered Mr. McCutcheon very well. Mr. Côté then explained the purpose of the call, i.e. [translation] "to get explanations and comments regarding the article by La Presse". Mr. McCutcheon's affidavit summarizes what the applicant allegedly stated:
[TRANSLATION]
11. With respect to the facts alleged by Myriam Bédard against VIA Rail . . .:
(a) that he was not implicated in these facts;
(b) that VIA Rail was currently reviewing the case;
(c) that the Vice-President of Marketing and the Head of Strategies at VIA Rail was responsible for answering to Ms. Bédard's allegations;
(d) that a press release by VIA Rail would be published on Monday [March 1st], regarding the matter [that release, which was not filed in evidence, was issued on Friday, February 27, i.e. the same day as Mr. Pelletier's public apology];
12. With respect to the remarks about Myriam Bédard attributed to him by the article by La Presse, Mr. Pelletier stated:
(a) that his remarks were inappropriate ;
(b) that a personal press release would be issued in the minutes that followed;
[21] Mr. Côté then asked Mr. Pelletier if he had anything else to say about the incident reported in the newspaper La Presse. The applicant replied that [translation] "the news release [the affidavit does not specify whether it was VIA Rail's release regarding Ms. Bédard's departure or Mr. Pelletier's statement of apology] was self-explanatory and that he had nothing else to add." This is allegedly how the call ended.
5. The statement of apology
[22] Also on February 27, VIA Rail issued the press release attached to the applicant's affidavit, in which the applicant made a public apology to Myriam Bédard for the statements that he made during his interview with François Cardinal.
[23] The applicant explained in his affidavit dated April 28, 2004, that the apology was made [translation] "immediately" and [translation] "of his own initiative". He added that it was meant to [translation] "remove any embarrassment which may have been caused to Ms. Bédard as a result of the publication of those comments ".
[24] According to the respondent, this press release was issued between 3:15 p.m. and 3:50 p.m., i.e. between the first call by Mr. Côté and the applicant's return call.
6. The events of March 1, 2004
[25] Two days later, namely Monday, March 1, 2004, the events occurred quite quickly. They were described by the applicant and were not disputed by the respondent.
(a) The calls from the federal Minister of Transport
[26] First, the applicant states in his affidavit that he had two telephone conversations with the Minister of Transport at the time, Tony Valeri.
[27] During the first call, around 8:50 a.m., Mr. Valeri informed the applicant that a decision would be made regarding him, without giving further detail[s] regarding the ground[s] and nature of the decision. The applicant explained that during that call from Minister Valeri, he had not had the opportunity to respond when he was informed that a decision would be made regarding him. Mr. Pelletier added that he attempted to obtain details regarding the grounds and nature of the decision that was pending, but that the Minister told him that [translation] "he could not say anything at all".
[28] During the second call, around 11:50 a.m., Mr. Valeri informed the applicant of the decision that had been made to terminate his appointment, adding that an order would be adopted accordingly.
(b) The calls by Mark Reynolds to the Office of the Prime Minister
[29] The same day, Mark Reynolds, from the Office of the Prime Minister of Canada, also spoke with the applicant twice on the telephone. Mr. Pelletier's affidavit describes the content of these conversations.
[30] During the first call, around noon, Mr. Reynolds informed the applicant of his suspension. Mr. Reynolds first advised the applicant that he was suspended until March 5, 2004, immediately changing his mind and stating that the suspension would continue until March 15, 2004. Mr. Reynolds then simply told the applicant that a decision would be made before that last date and that, until that time, Mr. Pelletier [translation] "had nothing else to do".
[31] During the second call, 10 minutes later, Mr. Reynolds told the applicant that the situation had evolved, that he was dismissed and that he would receive a message to that effect by facsimile later in the afternoon.
[32] No ground for dissatisfaction with the applicant was given during these calls.
(c) The letter, the termination order and press release making the termination public
[33] Around 3:00 p.m. the same day, the applicant received by facsimile a letter from Mr. Valeri, accompanied by the termination order. The letter in question reads as follows:
[TRANSLATION]
Sir,
I am following up on our conversation of this morning.
Attached you will find a copy of an order by the Governor General in Council, on the recommendation of the Minister of Transport pursuant to subsection 105(5) of the Financial Administration Act, terminating your appointment as Chair of the Board of Directors of VIA Rail Canada Inc., made by order P.C. 2001-1294 dated July 31, 2001.
Sincerely yours,
(signed)
The Hon. Tony Valeri, P.C. Deputy
Encl.
c.c.: Paul Côté . . .
[34] The termination order reads as follows:
Whereas, by P.C. 2001-1294 on July 31, 2001, Jean Pelletier was appointed chairman of the board of directors of VIA Rail Canada Inc., effective September 1, 2001, to hold office during pleasure;
Whereas the Governor in Council has lost confidence in Jean Pelletier as chairman of the board of directors of VIA Rail Canada Inc.;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 105(5) of the Financial Administration Act, hereby terminates the appointment of Jean Pelletier as chairman of the board of directors of VIA Rail Canada Inc., made by P.C. 2001-1294 on July 31, 2001, effective immediately.
[35] Also on March 1, 2004, the Government of Canada made the applicant"s termination public through a press release (press release dated March 1). This release reads as follows:
No. GC 001/04
For release March 1, 2004
GOVERNMENT OF CANADA
TERMINATES APPOINTMENT OF VIA CHAIRMAN
OTTAWA - On behalf of the Government of Canada, Transport Minister Tony Valeri today announced the termination of the appointment of Jean Pelletier as Chairman of the Board of Directors of VIA Rail Canada Inc.
The termination of the appointment of Mr. Pelletier is effective immediately.
"The comments made last week by Mr. Pelletier regarding Myriam Bédard were totally unacceptable," said Prime Minister Paul Martin. "I asked people who had knowledge about possible wrongdoings to come forward. And when they do, I expect them to be treated fairly. This was clearly not the case. My government came to office with a commitment to change the way things work. The actions we are taking today reflect that commitment."
Transport Minister Valeri said: "Last week I stated that the government would review the comments of the VIA Chairman and would take appropriate action. It is completely inappropriate for the chairman of a Crown corporation to make comments of this nature about someone identifying wrongdoing in the workplace."
VIA Rail Canada Inc. is a federal Crown corporation wholly owned by the Government of Canada.
ANALYSIS
[36] This is an application for judicial review based on the alleged default by the Governor General in Council to respect the procedural guarantees applicable to the applicant. Specifically, the Court has before it an application for an order of certiorari setting aside the termination order and an application for an order declaring the full force and effect of the appointment order.
[37] The writ of certiorari is intended to enable the Court to verify the legality of a decision, in particular when that decision was made in breach of a duty to act fairly. As established by the Supreme Court of Canada in Martineau v. Matsqui Institution [1980] 1 S.C.R. 602, 106 D.L.R. (3d) 385, at paragraph 57:
Certiorari is available . . . to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.
[38] The jurisdiction of the Federal Court to decide this application is based on sections 18 and 18.1 of the Federal Courts Act, R.S. 1985, c. F-7.
[39] The respondent is not disputing the applicant's claim that he was entitled to procedural fairness. I will therefore not address this aspect at length. To decide if the applicant is entitled to relief, first one must determine the scope or nature of the duty of procedural fairness imposed on the Governor General in Council. Next, it must be determined whether the applicant received the procedural guarantees applicable in this case. If so, the application for judicial review must be dismissed. If not, the applicable remedy would have to be determined.
1. The existence of a duty of procedural fairness
[40] In Knight v. Indian Head Sch. Div. No. 19 [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26, the tests were established to determine the existence of a duty of procedural fairness. The method used by the majority consists in verifying first if a duty to act fairly exists as a result of the nature of the decision, of the employer-employee relationship and of the effect of the decision on the employee. Second, one must verify whether that duty is modified by the law or the contract.
(a) The duty to act fairly
[41] The existence of a general duty to act fairly resulting from the common law is assessed in light of three factors:
(i) the nature of the decision which must be made by the authority in question;
(ii) the existing relationship between that authority and the individual; and
(iii) the effect of that decision on the rights of the individual (Knight v. Indian Head Sch. Div. No. 19, supra, at page 669).
[42] Generally, such a duty is imposed "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. Kent Institution [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78 at paragraph 14).
[43] The nature of the decision tends to favour the applicant. This was a decision by the Governor General in Council to dismiss the applicant as Chair of the Board of Directors of VIA Rail. That decision contemplates one individual in particular and is not legislative or general in nature. Further, it was an final decision, not a preliminary decision. These are factors that tend to trigger the duty to act fairly. (Knight v. Indian Head Sch. Div. No. 19, supra, at page 670).
[44] The nature of the relationship must also be considered. According to the Supreme Court of Canada, the fact that a position is occupied at pleasure does not preclude compliance with the duty to act fairly. Just because a person may be dismissed in the absence of a duty to establish just cause does not mean that this person is not entitled to any procedural guarantees. The substance of the decision should not be confused with the procedure which ought to be followed in reaching it, the Court notes (Knight v. Indian Head Sch. Div. No. 19, supra, at page 674).
[45] Finally, the effect of the decision on the employee must be considered. On this point, there is no doubt that there must be a duty to act fairly when a person's employment is at stake (Knight v. Indian Head Sch. Div. No. 19, supra, at page 677) and in those cases "[a] high standard of justice is required" (Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, (1980) 110 D.L.R. (3d) 311, at paragraph 13).
[46] The nature of the decision, the relationship between the Governor General in Council and the applicant and the effect of the impugned decision on him lead to the conclusion that the Governor General in Council was bound by a duty to act fairly.
(b) The legislation and the contract
[47] In Knight v. Indian Head Sch. Div. No. 19, supra, at pages 677 and 681, the Supreme Court cites Kane v. University of British Columbia, supra, in which it was held that absent express language or necessary implication in the legislation or the contract, the rules of natural justice could not be abrogated. Since I fail to see in either the contract or the legislation provisions or stipulations that could extinguish or modify the duty of procedural fairness of the Governor General in Council, and the existence of this duty is not disputed, I conclude that this duty exists.
2. Nature of the duty of fairness
[48] In Baker v. Canada, [1999] 2 S.C.R. 817, (1999), S.C.J. No. 39, at page 837, the Supreme Court of Canada notes the flexible and variable nature of the duty of procedural fairness. Madam Justice L'Heureux-Dubé writes that "All of the circumstances must be considered in order to determine the content of the duty of procedural fairness." I do not think it is necessary to engage in an analysis of these factors, as the nature of the duty of procedural fairness as it applies to the dismissal of persons appointed at pleasure was clearly identified in Knight v. Indian Head Sch. Div. No. 19, supra, at page 683. This duty is minimal: the employer must communicate to the employee the reasons for his dissatisfaction and give the employee an opportunity to be heard (See Cardinal v. Kent Institution, supra, at paragraph 22; Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 S.C.R. 311, (1978) 88 D.L.R. (3d) 671, at paragraph 27; Reglin v. Creston (Town) [2004] B.C.J. No. 1218, 2004 BCSC 790, at paragraphs 43 and 46; Woodley v. Yellowknife Education District No. 1 [2000] N.W.T.J. No. 31, 2000 NWTSC 30, at paragraph 22; Charles v. Université de Montréal (February 14, 1990), Montréal, 500-05-012566-897 (S.C.), at pages 18 and 20). The respondent's opinion is that these two procedural guarantees were complied with in this case, while the applicant thinks they were breached. In the following section, therefore, we will look at both of these procedural guarantees and verify whether they were complied with.
3. Compliance with the duty of fairness
[49] The question whether the applicant knew or ought to have known that disciplinary action was being contemplated against him is at the heart of the litigation and directly affects his ability to know the reason(s) for the employer's dissatisfaction and to respond. I will therefore examine, first, the question of whether the applicant knew or ought to have known that disciplinary action was being contemplated against him, and then discuss the procedural guarantees as such.
(a) Applicant's knowledge that disciplinary action was being contemplated against him
(i) Explicit mention
[50] The record indicates that the applicant was informed only belatedly that disciplinary action was being contemplated against him. According to the applicant's affidavit, which is uncontradicted on this point, he was explicitly made aware of this when Mr. Valeri telephoned him on March 1, 2004.
(ii) Actual notice
[51] The respondent submitted to the Court certain passages from the judgments in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Knight v. Indian Head Sch. Div. No. 19, supra, and Re Cardinal Insurance Co. and Minister of State (Finance) 44 N.R. 428, [1982] F.C.J. No. 516 (F.C.A.) to show that the Governor General in Council did not need to explicitly inform the applicant that disciplinary measures were being contemplated against him. According to the respondent, the applicant [translation] "knew or ought to have known . . . that his position was at stake" (paragraph 39 of the Respondent's memorandum of fact and law). Each of the relevant extracts from the aforementioned judgments are reproduced, making the necessary distinctions.
Moreau-Bérubé v. New Brunswick (Judicial Council)
[52] The respondent drew the Court's attention to paragraph 79 of the judgment in Moreau-Bérubé v. New Brunswick (Judicial Council), supra. In that case, Madam Justice Arbour of the Supreme Court of Canada thought Judge Moreau-Bérubé's right to be heard had not been violated merely because she had not been explicitly informed that a sanction might be imposed on her at the conclusion of a disciplinary process. Paragraph 79 of the judgment reads as follows:
In the circumstances of this case, I cannot accept that the Council violated Judge Moreau-Bérubé's right to be heard by not expressly informing her that they might impose a sanction clearly open to them under the Act. The doctrine of legitimate expectations can find no application when the claimant is essentially asserting the right to a second chance to avail him- or herself of procedural rights that were always available and provided for by statute. Moreover, the inquiry panel had no authority to make a recommendation to the Council about the appropriate sanction. This is made abundantly clear in the Act, where s. 6.11(1) states, "the panel shall report to the chairman its findings of fact and its findings as to the allegations of misconduct, neglect of duty or inability to perform duties of the judge whose conduct is in question". This contrasts with the decision-making role of the Council once the panel's report is complete, as stipulated in s. 6.11(4) which states that "[b]ased on the findings contained in the report . . . the Judicial Council may . . . dismiss the complaint, . . . issue a reprimand . . ., or . . . recommend . . . that the judge be removed from office". Regardless of the fact that the panel made a recommendation that it was not mandated to make, the Council had a clear and plain discretion to choose between three options. I do not believe that the respondent, a judge, who had legal advice throughout, could have misapprehended the issues that were alive before the Judicial Council. She never asserted making such an error until it was raised by Angers J. on judicial review.
[53] In Moreau-Bérubé, the controversial remarks were made by the judge on February 16, 1998, and she was removed on April 15, 1999. A lengthy period had elapsed between the time when the misconduct was committed and the time when the disciplinary sanction was imposed on her. A number of complaints had been made against her to the Judicial Council under the Provincial Court Act, R.S.N.B. 1973, c. P-21, soon after the remarks were made, and she had the right to be informed of this under that Act. So she knew exactly why she was being criticized. The disciplinary process had been under way for a long time and it would have been superfluous to inform Judge Moreau-Bérubé that sanctions might be imposed on her under the Act. Furthermore, the judge had been allowed to participate in a process enabling her to a full hearing and to be assisted by counsel.
[54] In my opinion, these circumstances have nothing to do with the applicant's case, in which the commencement of the dismissal process was not explicitly announced. The events occurred too quickly and in an extremely informal way, without the presence of Mr. Pelletier's counsel, and even without the possible outcomes of the discussions having been clearly put on the table. In these circumstances, I think the fact that the applicant had not been informed of the pending disciplinary measures is of greater significance than in Moreau-Bérubé.
Knight v. Indian Head Sch. Div. No. 19
[55] According to the respondent, the following extract should persuade me that the applicant need not have been explicitly informed that disciplinary measures were being contemplated in his regard. The relevant passages from Knight v. Indian Head Sch. Div. No. 19, supra, read as follows, at pages 684 to 686:
The trial judge and the Court of Appeal disagreed on whether the respondent was provided with reasons for his dismissal and the opportunity to be heard. In the Court of Queen's Bench, Lawton J. . . . writes at p. 283:
The failure to agree on a one-year contract, which from the beginning was the major reason for the negotiations, finished them. But there had been negotiations up until that time -- the lines of communication had been open and Knight, through his solicitor, had been actively involved in presenting his case to the Board. He was being heard. By August, everything that had to be said had been said by both parties.
He therefore concluded that the procedure followed by the appellant Board was fair. The Saskatchewan Court of Appeal found that the respondent got neither reasons for his dismissal nor a hearing. [...] Sherstobitoff J.A. found for the court, at p. 313, that:
The trial judge seemed to proceed on the assumption that the appellant knew, or should have known, that if he did not agree to a new one-year contract that he would be fired and we must accept that finding of fact. However, the fact remained that he was never told that he would be fired unless he accepted a one-year contract until he was actually fired. The trial judge was wrong in accepting the implied threat of termination on the part of the employer as a notice of intention to terminate and the failed negotiations as reasons for dismissal as required by the rules of procedural fairness. It is difficult to think of anything more unfair to an employee than to tell him that he must accept a threat which he should have inferred from the employer's conduct as formal notice of intention to terminate, and must treat a purported renegotiation of an employment contract as a hearing into whether or not he should be terminated. [Emphasis added.]
The disagreement between the two courts below lies therefore not so much in the content of the communication but rather in the significance to be attached to the negotiations between the parties.
. . .
In the present case, the trial judge found as a fact that the respondent knew or should have known why the appellant Board was unhappy with his employment contract and that if he did not accept a one-year contract he would be dismissed. In my view, the record amply supports this finding, which was not disputed by the Court of Appeal. I recognize the Court of Appeal's concern that the respondent was never officially notified of the reasons for his dismissal, but it is clear that he was informed of those reasons through his meetings with the appellant Board, sometimes personally, sometimes through his solicitor. In conformity with s. 2 of the contract of employment, the respondent was present at the appellant Board's meeting on May 30, 1983, where his contract was not renewed, and had the opportunity to make representations if he so wished. Further, during the summer, the respondent's attorney met twice with the appellant Board to negotiate a new contract, and all issues appeared to have been settled except as to the duration of the contract, the respondent pressing for a minimum two-year term while the Board insisted on a one-year contract. Both parties appear to have been adamant on this point and it can be presumed that it caused the negotiations to fall through. Since I accept the trial judge's finding of facts that "everything that had to be said had been said" (at p. 283), the requirement of the formal giving of reasons and the holding of a hearing would achieve no more, in my respectful view, than to impose upon the appellant Board a purely procedural requirement, against the above-stated principles of flexibility of administrative procedure.
In my view, the appellant Board has made itself sufficiently available for discussion through meetings with the respondent and his lawyer so that each party's concerns were made fully known to the other. This can only lead to the conclusion that the respondent knew the reasons for his dismissal and was provided with every opportunity to be heard. [Emphasis added.]
[56] It is to be noted that in Knight, almost three months had elapsed between the time when some members of the Board of Education of the Indian School Division No. 19 of Saskatchewan ("Board") informed the respondent Knight that his contract would not be renewed and dismissed him. Knight had been given an opportunity to be heard during a Board session and negotiations had been held between his lawyer and the Board.
[57] The facts in the case before this Court are quite different. On February 26, 2004, the applicant was reassured by Mr. Himelfarb's letter, according to which [translation] "the Government of Canada had not yet announced any action involving him". In that letter, Mr. Himelfarb does not mention that a process possibly leading to disciplinary action is under way, nor does he mention any reasons whatsoever for dissatisfaction. Between the telephone call from the representatives of the Privy Council and the dismissal, there elapsed only one weekend (two days), and the dismissal process was much speedier than in Knight v. Indian Head Sch. Div. No. 19, supra, where there were many real opportunities to make representations.
Re Cardinal Insurance Co. and Minister of State (Finance)
[58] The respondent further submits that the applicant's professional and political experience is a relevant consideration that should persuade this Court that the applicant should have known that disciplinary action was being contemplated and that he was aware of the reason(s) for the employer's dissatisfaction. The respondent relies on some extracts from authorities and on the judgment in Re Cardinal Insurance Co. and Minister of State (Finance), supra, at paragraph 26:
It is common ground that whether a notice in a particular quasi-judicial or administrative proceeding is sufficient depends upon the circumstances of the case. Counsel for the Attorney General points to the above quotations as supporting his contention that Messrs. Mendez and Katzman were both well aware of the actions open to the Minister if he had fears about the protection available to the policyholders. He also pointed out that Mr. Mendez as a highly experienced insurance executive and Mr. Katzman as a solicitor and knowledgeable director of an insurance company would be well aware of the possible actions that the Minister might take when reference was made in the January 28 message to subsection 103.2(2). I agree with those submissions.
[59] The circumstances of the Cardinal case are distinguishable from those in which the applicant found himself. First, it should be noted that in Cardinal it was not a dismissal or a discharge but a decision by the Minister of State (Finance) to restrict the certificate of registration of an insurance company and to take control of the company's assets. Also, more than 20 days had elapsed between the notice of hearing and the decision and a number of meetings had been held in the interval between the parties and an interested third party company. Furthermore, the legislation clearly listed the Minister's powers in cases where the assets of an insurance company were insufficient, and the notice of hearing explicitly referred to them. Finally, the record indicated that one of the insurance company's representatives was aware of the measures at the Minister's disposal. It was possible to determine based on the circumstantial evidence that the principles of natural justice had not been breached by the Minister, as the insurance company was sufficiently informed and had an opportunity to be heard. In short,