Date: 20070330

Docket: T-74-06

Citation: 2007 FC 342

Ottawa, Ontario, March 30, 2007

Present: The Honourable Mr. Justice Lemieux 

 

BETWEEN:

Jean Pelletier

Applicant

and

 

Attorney General of Canada

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               In this application for judicial review, Jean Pelletier is asking the Court to set aside Order-in-Council P.C. 2005-2341 (the second termination order), adopted by Her Excellency the Governor General in Council pursuant to subsection 105(5) of the Financial Administration Act (the Act) and section 24 of the Interpretation Act, R.S.C. 1985, c. I-21, on the recommendation of Jean Lapierre, the Minister of Transport at that time. This order, reproduced in the Appendix, terminated the appointment of Jean Pelletier as Chair of the Board of Directors of Via Rail Canada Inc. (Via Rail).

 

[2]               This is not the first time that Mr. Pelletier has called on the remedial powers of this Court to continue his position as Chair of Via Rail’s Board of Directors, a position that he has held since September 1, 2001, following his appointment at pleasure (“à titre amovible”) by Her Excellency the Governor General in Council’s order P.C. 2001-1294, adopted pursuant to sections 105 and 106 of the Act, on the recommendation of Tony Valeri, then the Minister of Transport, after consulting Via Rail’s Board of Directors.

 

[3]               In fact, Mr. Pelletier was successful before my colleague, Mr. Justice Simon Noël, who in a decision dated November 18, 2005, set aside the first termination order adopted by the Governor General in Council on March 1, 2004, and referred Mr. Pelletier’s case to the Governor General in Council (Pelletier v. Canada (Attorney General), 2005 FC 1545).

 

[4]               Noël J. determined that the government had a duty to act fairly towards Mr. Pelletier, which was indeed acknowledged by the government’s counsel. According to my colleague, the substance of this duty was to advise him that his position was in danger, to inform him of the reasons for being dissatisfied with him, and to give him the opportunity to be heard. Noël J. determined that the government breached its duty to act fairly, since Mr. Pelletier was not aware of the precariousness of his situation until after his removal on March 1, 2004, he did not know the reasons for the dissatisfaction alleged against him and he had not had the opportunity to be heard.

 

[5]               The Federal Court of Appeal maintained Noël J.’s decision on January 11, 2007, and the Attorney General did not apply for leave to appeal to the Supreme Court of Canada (Canada (Attorney General) v. Pelletier, 2007 FCA 6).

 

[6]               In this matter, Mr. Pelletier is challenging the validity of the second termination order on three grounds:

1.      Jean Lapierre (the Minister), the Minister of Transport at that time, showed bias when he recommended that his appointment be revoked;

2.      The Minister had the obligation to consult Via Rail’s Board of Directors before he made his recommendation to Cabinet, which he did not do;

3.      The second termination order had been adopted after the federal election was called, breaching the constitutional convention limiting the Cabinet’s power to act once it has lost the confidence of the House of Commons.

 

[7]               For the reasons that follow, I believe that Mr. Pelletier’s application must be allowed on the grounds that the Minister acted in a way that raised a reasonable apprehension of bias when he oversaw Mr. Pelletier’s case after the first termination order was set aside by this Court on November 18, 2005. I am also of the opinion that Minister Lapierre had a statutory duty to consult Via Rail’s Board of Directors before making his recommendation and that he breached this duty.

 

[8]               I point out that the issue of the appropriate standard of review will not be examined in the reasons that follow. This issue was not raised in the parties’ written arguments and I believe with good reason. In fact, the first issue examined by this Court bears on procedural fairness and there is ample case law to the effect that there is no standard that applies to this type of issue. With regard to the second issue, the appropriate standard is that of correctness, since the issue of whether the Board of Directors had to be consulted is a question of law regarding which the Court has a more expertise than the Minister, and since the Act does not contain a privative clause.

 

[9]               I also point out the fact that the respondent did not see fit to file affidavits from Minister Lapierre or other members of government, or any other evidence in support of his arguments. Hence, the only evidence that the Court has in this matter is the evidence filed by the applicant.

 

[10]           Indeed I take judicial notice of the fact that, in previous proceedings, the applicant, in accordance with section 317 of the Federal Courts Rules, SOR/2004-283, requested that he be sent all documents, reports and recommendations regarding the issuance of the impugned order, which the respondent opposed based on section 39 of the Evidence Act, R.S. 1985, c. C-5. In this case, the applicant made another request under section 317 of the Federal Courts Rules, a request that did not result in any disclosure.

 

1.      Background

[11]           By the adoption of order P.C. 2001-1294 on July 31, 2001, the applicant was appointed at pleasure for a five-year period, as Chair of Via Rail’s Board of Directors, effective on September 1, 2001.

 

[12]           On February 26, 2004, the applicant took part in a telephone interview with François Cardinal, a journalist with La Presse daily newspaper, regarding the alleged dismissal in January 2002 of Myriam Bédard, a Via Rail employee since January 2001. It should be noted that this interview request was also made in the context where Ms. Bédard’s had sent a letter, dated February 13, 2004, to the then-Prime Minister regarding the sponsorship matter.

 

[13]           The next day, an article reporting what the applicant said was published in La Presse under the headline, [translation]“Victim of the Sponsorship Scandal”. I refer to the relevant passages from this article:

[translation]

 

Victim of the Sponsorship Scandal

 

Olympic medalist Myriam Bédard says that she was forced to resign from VIA Rail

 

. . .

 

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."

 

[14]           Indeed, it is worthwhile mentioning that the transcript of this interview establishes that Mr. Pelletier told the journalist that Myriam Bédard’s departure from Via Rail had nothing to do with the sponsorship scandal.

 

[15]           On February 27, 2004, Mr. Pelletier issued a press release, in which he apologized for what he had said about Ms. Bédard. At that time, Via Rail also issued a press release stating that Myriam Bédard had left Via Rail of her own initiative.

 

[16]           On March 1, 2004, the first termination order was adopted by the Governor General in Council against Mr. Pelletier.

 

[17]           That same day, Jean Lapierre, then a candidate for the federal elections for the Liberal Party, was speaking in the city of Granby. During this speech, an overview of which was reported in an article appearing in the daily La Voix de L’Est on March 2, 2004, Minister Lapierre stated that the Liberals had to do a [translation] “spring cleaning” in their ranks and that [translation] “there are even a few that will be thrown out”. The Minister then stated that Jean Pelletier’s comments about Myriam Bédard were unacceptable and that he was one of the individuals who should be ousted.

 

[18]           On April 8, 2004, an investigation report filed by Michel G. Picher, an independent arbitrator responsible for investigating Ms. Bédard’s departure from Via Rail, determined that her departure was voluntary and that Mr. Pelletier had not been involved with it in any way.

 

[19]           On November 18, 2005, Mr. Justice Simon Noël set aside the first termination order and referred the applicant’s case to the Governor General in Council. This decision was upheld by the Federal Court of Appeal in a judgment delivered on January 11, 2007.

 

[20]           On November 21, 2005, the Minister wrote to the applicant asking him to make written arguments against the Governor General in Council’s termination of his duties as Chair of Via Rail’s Board of Directors. I refer to the following passage of this letter:

[translation]

The government examined the decision of the Federal Court of Canada very carefully and decided to refer your case back to the  Governor General in Council for reconsideration. Since you were appointed at pleasure, the Governor in Council has the discretion to terminate your duties, to revoke your appointment, or to suspend you.

 

During this exercise, the government will have to decide which measures must be taken after the statements you made on February 26, 2004, to a journalist from the newspaper La Presse regarding Myriam Bédard. . . .

 

You made these statements during a period when you knew or should have known that the government was encouraging Canadians who could have information on any situation connected with the sponsorship program to step forward and cooperate with the Gomery Commission .

 

The nature and the character of these statements raise serious issues which lead me to believe that there are grounds for me to recommend to the Governor in Council that your appointment be termination for loss of confidence in you as Chair of The Board of Directors of Via Rail Canada Inc. [Emphasis added.]

 

[21]           Later that day, the Minister made the following statements at the House of Commons:

Mr. James Moore (Port Moody—Westwood—Port Coquitlam, CPC): Mr. Speaker, although the reasons for doing so are obvious, the Prime Minister is incapable of properly dismissing the key figures in the sponsorship scandal whom Justice Gomery has clearly fingered in his report. The Prime Minister had promised to clean house, yet we find him not even able to just dismiss Mr. Pelletier

 

Will the Prime Minister force Jean Pelletier to step down from his duties at the head of VIA Rail, yes or no?

 

Hon. Jean Lapierre (Minister of Transport, Lib.): Mr. Speaker, the grounds on which Mr. Pelletier was dismissed in March 2004 are as valid as ever. That is why this morning I have initiated a process which will allow Mr. Pelletier to be heard and to provide us with reasons why he ought not to be dismissed on those grounds.

 

Obviously, Mr. Pelletier no longer has our confidence to chair the board at VIA Rail. [Emphasis added.]

 

[22]           On November 30, 2005, the applicant replied to the Minister’s letter, sending him his submissions, in essence concerning the Minister’s bias, his continued appointment as Chair of Via Rail’s Board of Directors, and the absence of fault justifying the termination of his appointment. It is worthwhile to mention that, in this letter, Mr. Pelletier specifically said that he made [translation] “the following submissions under reserve of all the remedies that I may exercise against your decision relating to me, based on this breach of the rules of natural justice.”

 

[23]           At Mr. Pelletier’s request, a meeting took place on December 1, 2005, with Minister Lapierre and the Minister of Intergovernmental Affairs and President of the Queen's Privy Council, Lucienne Robillard. Both parties’ counsel attended.

 

[24]           At the beginning of this meeting, the Minister explained the statements that he had made before assuming his duties, i.e. the statements that he made in the city of Granby on March 1, 2004. However, he did not remark at all on the statements that he made at the House of Commons on November 21, 2005, even though the applicant had stated in his written arguments dated November 30, 2005, that in his opinion these statements established his bias.

 

[25]           The applicant then played the recording of his telephone interview with François Cardinal and made his oral submissions. The submissions were essentially in regard to the fact that his remarks regarding Myriam Bédard did not justify a dismissal, the findings of the Picher report and the grounds justifying revoking his appointment for cause.

 

[26]           Minister Lapierre, aside from his explanations regarding the statements made in Granby, only intervened a few times during this meeting. These interruptions bore on the impact of Mr. Pelletier’s statements about Ms. Bédard on the public’s willingness to provide information on the sponsorship program, and on the issue of whether Mr. Pelletier ought to have defended Via Rail following the allegations made by Ms. Bédard. Ms. Robillard, for her part, refrained from any comment. I add that the Minister, in response to a question formulated by the applicant regarding the time period for making the decision, allegedly said that he would make the decision in a reasonable period of time, i.e. after quietly thinking over what had been said during the meeting.

 

[27]           The same day that the meeting took place between the Minister and the applicant, i.e. December 1, 2005, Parliament was dissolved by royal proclamation following a non-confidence motion.

 

[28]           December 19, 2005, a notice of appeal was filed against Noël J.’s judgment.

 

[29]           On December 22, 2005, the Governor General in Council adopted the second termination order on the recommendation of Minister Lapierre, without consulting Via Rail’s Board of Directors. In so doing, the government decided, just like the first termination order, to revoke Mr. Pelletier’s appointment for misconduct.

 

[30]           The order, reproduced in the Appendix, essentially provides that the Governor General in Council lost confidence in Jean Pelletier following the remarks that he made about Ms. Bédard, when the government was encouraging people with information about the sponsorship program to come forward. For these reasons, the Governor General in Council, on the recommendation of the Minister of Transport, terminated Mr. Pelletier’s appointment, pursuant to subsection 105(5) of the Act and section 24 of the Interpretation Act.

 

2.      The decision of the Federal Court of Appeal

[31]           Before proceeding to analyze the reasons raised by the applicant against the second termination order, I think it fitting to summarize the remarks of the Federal Court of Appeal made by Mr. Justice Denis Pelletier and concurred in by Décary and Nadon JJ.A., since they are likely to be guidelines in my analysis.

 

[32]           First, I must point out and adopt the comment made by Pelletier J.A., at the very beginning of the analysis of the Attorney General’s arguments regarding the government’s right to end Mr. Pelletier’s appointment:

As a preliminary matter, it is important to remember that the issue in this case is not whether the government was entitled to put an end to Mr. Pelletier’s appointment. Mr. Pelletier held his office at pleasure; the government was entitled to remove him at any time for any reason. The duty of procedural fairness, whatever its content, deals only with the process by which the government exercises its right to terminate his appointment, and not with the substance of the decision itself. The right to be given reasons and the right to be heard do not create, by implication or otherwise, a right to be removed from office only for reasons which meet some standard of rationality:  see Knight at  pages 674 – 675 . . .

 

[33]           In his reasons, Pelletier J.A. then pointed out the difference between removal for cause of misconduct and removal based on purely political reasons, and he confirmed that given that Mr. Pelletier’s appointment had been revoked for misconduct, the highest standard of procedural fairness applied. I refer to the relevant passage from Pelletier J.A.’s reasons on this issue:

In light of the above, I conclude that where the government, in the exercise of its statutory power to terminate the appointment of persons named to office at pleasure, proposes to act on the basis of a person’s misconduct, the duty of procedural fairness requires that, where that person does not know that his or her position is in jeopardy by reason of that misconduct, the person be informed of the possibility of removal and of the reasons for that removal, and be given the opportunity to be heard.

 

[34]           Finally, Pelletier J.A., considering his findings, did not see fit to decide on the applicant’s argument regarding the need to consult the Board of Directors to remove Mr. Pelletier from office, an argument raised once again in this case. He did however make several remarks about the argument formulated by the respondent to the effect that Mr. Valeri could not, based on the principle of the confidentiality of cabinet deliberations, inform Mr. Pelletier of the reasons that could have or did lead to his removal. In fact, he determined that this argument was specious and that if it was appropriate to make the reasons for Mr. Pelletier’s removal public through a press release, it was certainly appropriate to inform Mr. Pelletier of it beforehand.

 

3.      The analysis

Bias

[35]       In this case, the applicant is challenging the impartiality of Minister Lapierre, who was responsible for making a recommendation with regard to continuing or revoking the applicant’s appointment. The applicant argued in effect that the Minister was disqualified from holding office and, on that basis, the termination order is void.

 

[36]       There is really no issue as to whether the applicant was entitled to impartiality, since it was determined in the previous proceedings that Mr. Pelletier was entitled to procedural fairness, including inter alia the right to be heard. As such, “ [t]he rules which require a tribunal to maintain an open mind and to be free of bias, actual or perceived, are part of the audi alteram partem principle which applies to decision-makers.” (Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, paragraph 41). The comments made by the Supreme Court per Cory J. in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioner of Public Utilities), [1992] 1 S.C.R. 623, paragraph 22 are also in agreement:

Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal.  See Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 7 (S.C.C.), [1980] 1 S.C.R. 602.  The duty to act fairly includes the duty to provide procedural fairness to the parties.  That simply cannot exist if an adjudicator is biased.

 

[Emphasis added]. 

 

[37]       Indeed, in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at paragraph 31, Madam Justice Claire L’Heureux-Dubé pointed out that one of the objectives of the obligation to act fairly is to allow the person whose job is threatened to change the employer’s mind about the dismissal:

In both the situation of an office held at pleasure and an office from which one can be dismissed only for cause, one of the purposes of the imposition on the administrative body of a duty to act fairly is the same, i.e., enabling the employee to try to change the employer's mind about the dismissal.  The value of such an opportunity should not be dependant on the grounds triggering the dismissal.

 

[38]       In the matter before us, the Minister of Transport, Minister Lapierre, had first to decide whether Mr. Pelletier should be removed from office. Minister Lapierre’s role therefore was to communicate with the applicant, gather his arguments in writing and orally, and make a recommendation as the appropriate Minister. It was therefore what could be described as a preliminary role, in the sense that the Minister’s decision was not in itself a final decision, since Cabinet could decide not to follow his recommendation. Even though preliminary, the Minister’s role in making the decision to remove the applicant was still significant, since his recommendation certainly influenced the Cabinet’s decision.

 

[39]       At the hearing, the respondent acknowledged that the Minister, as the person responsible for hearing Mr. Pelletier and formulating a recommendation, had a duty to act fairly and had to have an open mind. In my opinion, this admission was correct, since the Minister played a significant role in adopting the second termination order.

 

[40]       This finding is supported by the remarks made by Madam Justice Claire L’Heureux-Dubé in Baker to the effect that the obligation to act fairly, i.e. in a manner that does not give rise to a reasonable apprehension of bias, applies to the decision-maker even if that decision is not final, to the extent that the decision-maker plays a significant role:

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.  The respondent argues that Simpson J. was correct to find that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate.  In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision.  The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner.  In addition, as discussed in the previous section, the notes of Officer Lorenz constitute the reasons for the decision, and if they give rise to a reasonable apprehension of bias, this taints the decision itself.

 

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, paragraph 25.

 

[41]       In deciding as such, L’Heureux-Dubé J. continued to follow the path she had taken while she was sitting on the Court of Appeal of Québec in St-Hilaire v. Bégin, [1982] C.A. 25. In that case, the judge effectively found that the chairman appointed by a municipal commission to conduct an inquiry into the administration of the town of Rimouski had a duty to act impartially, since his recommendation could affect a citizen’s rights. It should be pointed out that in this decision the Court specifically dismissed the argument to the effect that the commissioner had not acted impartially, since his role was not to render a judgment, but rather to gather the facts and to report them to the government. Indeed, the application for leave to appeal this judgment to the Supreme Court was denied (St-Hilaire v. Bégin, [1982] C.S.C.R. No. 322).

 

[42]       That said, in order to determine whether the Minister showed actual bias or created a reasonable apprehension of bias by his conduct or by his statements, it is necessary to define the standard of impartiality governing him.

 

[43]           The notion of bias was defined as follows by the Supreme Court in R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paragraphs 104 et seq.: 

In a more positive sense, impartiality can be described – perhaps somewhat inexactly – as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

 

In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. . . .

 

Indeed, the applicant who alleges a decision-maker’s bias need not establish an actual bias, but rather a reasonable apprehension of bias.

 

[44]       Insofar that it is impossible to assess the state of mind of a decision-maker, the courts have adopted the notion of appearance of bias:

It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision.  As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness.  To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias.  The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.

 

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioner of Public Utilities), supra, paragraph 22.

 

[45]       The substance of the standard of impartiality for a decision-maker varies according to the terms of the statute pursuant to which the decision-maker operates, the nature of the particular function of which the decision-maker is seized and the type of decision the decision-maker is called upon to make (Old St. Boniface Residents Association Inc. v. Winnipeg (City), supra, paragraph 44). A review of the case law on this issue indicates that there are two standards of impartiality, one which applies more to judicial or quasi-judicial functions, namely the reasonable apprehension of bias test; and the other to organizations or agents exercising administrative functions, i.e. the closed mind test.

 

[46]       The reasonable apprehension of bias standard was defined as follows by the Supreme Court at paragraph 40 of the decision Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."

 

[47]       As for the closed mind standard, it was defined as follows by the Supreme Court, at paragraph 57 of Old St. Boniface Residents Association Inc., supra:

The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile.  Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.  In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change.

 

[48]       The most stringent test, that of reasonable apprehension of bias, was applied by the Supreme Court in Committee for Justice and Liberty v. Canada (National Energy Board), supra. The Supreme Court held in that matter that the Chairman of the Board was disqualified from presiding over an application for a certificate of public convenience and necessity in connection with the McKenzie Valley Pipeline pursuant to section 44 of the National Energy Board Act, R.S.C. 1970, c. N-6, by reason of his participation in the work of a study group made up of parties interested in the project. It should be mentioned that in hearing such an application, the Board was exercising a quasi-judicial role and its duties are not political or legislative.

 

[49]       In Old St. Boniface Residents Association Inc., supra, the Supreme Court applied the closed mind test to a municipal councillor. The municipal councillor in question was sitting on the municipal council in regard to a rezoning application for the implementation of a real estate development. Before the public hearings were held, the councillor had been personally involved in the planning of a development project and had advocated the project at in camera private meetings of the Finance Committee. The Supreme Court determined that the councillor had not prejudged the case to the extent that he was disqualified from the municipal committee, since there was nothing to indicate that he had made a final and irrevocable decision. The Court also pointed out the fact that some degree of prejudgment is inherent in the role of a municipal councillor, and that persons occupying this function should not be governed by too strict a standard of impartiality, so that they can perform their duties.

 

[50]       In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioner of Public Utilities), the Supreme Court applied two different standards with regard to the apprehension of bias: the standard of reasonable apprehension of bias at the hearing stage, and the standard of the closed mind standard at the investigative stage. In that case, the Supreme Court determined that a member of the Board of Commissioners of Public Utilities, a Board with a role in economic regulation, was disqualified from one matter because public comments that he made before as well as after the hearing raised a reasonable apprehension of bias.

 

[51]       In this case, the apprehension of bias raised by the applicant was that of the Minister responsible for making a recommendation to the Governor General in Council as to whether an official appointed at pleasure should continue in office or be removed. The role of the Minister, in the removal of Mr. Pelletier, was in a specific context: first, the extent of the government’s obligations toward the applicant was established in a judicial decision, i.e. the decision by Noël J. and second, the removal of Mr. Pelletier was not a removal without cause, but rather a removal justified by his misconduct, justifying the application of the strictest standard of procedural fairness, as stated by the Federal Court of Appeal. I would add that the role of the Minister, when he was deciding Mr. Pelletier’s case, was not to elaborate general policies or legislative principles, but was to hear and weigh Mr. Pelletier’s arguments.

 

[52]       I therefore determine that, considering the specific nature of the task that the Minister had to achieve and the type of recommendation that he made, once the process had begun to have Mr. Pelletier removed from office, i.e. on November 21, 2005, the impartiality standard that applied to him was that of a reasonable apprehension of bias. This solution is similar to the one adopted by the Supreme Court in Newfoundland Telephone, supra, at paragraph 35.

 

[53]       The respondent relied on Woodley v. Yellowknife District No. 1, 2000 NWTSC 30, to try to minimize the substance of the Minister’s duty to act fairly, specifically so that the less stringent standard, that of closed mindedness, be applied to him. This decision does not apply to the matter at hand, given that the reasonable apprehension of bias raised by the applicant is based on circumstances involving events which occurred after the process of removing Mr. Pelletier had been initiated, and that Mr. Pelletier was then entitled to expect the Minister’s conduct “would be such that it would not raise a reasonable apprehension of bias ” (Newfoundland Telephone, supra, at paragraph 35).

 

[54]       The apprehension of bias raised by the applicant is founded on the following circumstances:

-         Before he was Minister, Mr. Lapierre stated, referring to the applicant: [translation] “we have to air our carpets” and “there are a few that we will be throwing out”.

-         Three days after Noël J. rendered his decision, i.e. on November 21, 2005, Minister Lapierre told Mr. Pelletier the grounds of misconduct that had been alleged against him by the government and informed him of his right to make submissions in writing;

-         Later the same day, Minister Lapierre stated at the House of Commons that the reasons that existed in March 2004 to remove Mr. Pelletier from office were still valid and that, even if he had been sent a letter giving him the opportunity to be heard, it was obvious that the government had lost confidence in him.

 

[55]       I believe that it is important to point out that the applicant, in his written submissions, raised the apprehension of bias in regard to Minister Lapierre, and he specifically referred to two of the Minister’s statements supporting his apprehension. Indeed, at the very beginning of the meeting intended to allow Mr. Pelletier to make his oral submissions, the Minister gave details regarding the allegations of bias made by the applicant. I refer to the passages in question from the transcript:

[translation]

 

First, thank you for responding to my letter and for being there this morning. I think that I would like to clarify, because when I read your letter referring to my speech in Granby, I must tell you in all sincerity that when I made this notorious speech, I had no idea what was going to happen to you or anything of the sort, since I was not a member of the government and I was there as a speaker-candidate who was not aware of anything.

 

I learned of your removal after the end of my speech. I don’t want you to take it personally, because it was colourful expression, but I tell you that I truly had no idea because I was not privy to the information, I was simply a candidate, in no way a government member, on the road, addressing the crowd, but I had no idea and it is for that reason that if it may have been interpreted as attacking you directly, I know that was not really the case because I had no idea, I was referring to a big spring cleaning in general, without any individual in mind, because I had no idea what awaited you, I had no discussion with anyone.

 

I want to clarify because really, it was not my intention to hurt you personally and it was a general statement, colourful, but not concerning you directly. I had no idea at that time and I learned it when I left the room. There, the journalists who were in touch with the Canadian press and I don’t know, that’s where I heard about it. But I was not on the inside track and I wanted to clarify because that is not what I think of you.

 

Besides that, listen, I read your letter and it would be my pleasure to hear you out.

 

[56]       As the Minister explained the statements made in the context of his speech in Granby, and as statements were made before he came into office, in my opinion they did not disqualify him from acting in Mr. Pelletier’s case.

 

[57]       The same cannot be said, however, about the statements made by the Minister at the House of Commons. I find it appropriate to refer once again to the relevant passage of the Parliamentary debates:

Mr. James Moore (Port Moody—Westwood—Port Coquitlam, CPC): Mr. Speaker, although the reasons for doing so are obvious, the Prime Minister is incapable of properly dismissing the key figures in the sponsorship scandal whom Justice Gomery has clearly fingered in his report. The Prime Minister had promised to clean house, yet we find him not even able to just dismiss Mr. Pelletier

 

Will the Prime Minister force Jean Pelletier to step down from his duties at the head of VIA Rail, yes or no?

 

Hon. Jean Lapierre (Minister of Transport, Lib.): Mr. Speaker, the grounds on which Mr. Pelletier was dismissed in March 2004 are as valid as ever. That is why this morning I have initiated a process which will allow Mr. Pelletier to be heard and to provide us with reasons why he ought not to be dismissed on those grounds.

 

Obviously, Mr. Pelletier no longer has our confidence to chair the board at VIA Rail.

 

[58]       This passage shows that there was a reasonable apprehension of bias, since it establishes that the Minister had no intention of changing his mind about the removal, even if the applicant was given the chance to make written submissions: he had lost confidence in Mr. Pelletier, speaking on behalf of the government then in place. I consider that these remarks, made on the very day that the Minister communicated with the applicant to inform him of his right to make his arguments in writing, would lead a reasonable and informed person to have a reasonable apprehension of bias.

 

[59]       In addition to this statement, there is a very specific chronology to the events which led to the adoption of the second termination order: before Noël J.’s decision was definitive, namely three days after it had been rendered or the following Monday, the Minister initiated the process to have Mr. Pelletier removed once again; and the termination order had been adopted in the middle of the election campaign. The chronology of events as well as Minister Lapierre’s reservation in the questions that he addressed to the applicant at the meeting of December 1,  2005, shows the Minister’s willingness to quickly decide Mr. Pelletier’s fate, and these are factors supporting the existence of a reasonable apprehension of bias. In absence of counter-evidence made by the respondent, in my view there is no basis to diminish Minister Lapierre’s remarks given the fact that they were made in the parliamentary chamber. I would add that no such argument was raised before me.    

 

[60]       On balance, in my view an informed person, viewing the matter realistically and practically, and having thought the matter through, considering the circumstances set out above, would find it more likely than not that the Minister’s state of mind was not “disinterested in the outcome, and . . . open to persuasion by the evidence and submissions” (R. v. S. (R.D.), supra). I point out that the lack of counter-evidence filed by the respondent is also a factor that had been taken into consideration during the assessment of the Minister’s bias.

 

[61]       The reference in the order to the factors considered in making the decision was not enough to establish that the Minister was impartial when he recommended to the Governor General in Council that Mr. Pelletier be removed, or therefore to rebut the applicant’s evidence of appearance of bias.

 

[62]       For these reasons, it is my opinion that the Minister acted in a manner that created a reasonable apprehension of bias when he led Mr. Pelletier’s case.

 

The duty to consult the Board of Directors

[63]       Considering my finding regarding the Minister’s bias, I need not deal with the other grounds raised by the applicant against the validity of the removal order. In the interest of being thorough, I nevertheless intend to examine the second ground raised, which bears on the Minister’s duty to consult Via Rail’s Board of Directors before recommending the Chair’s removal.

 

[64]       In the case at bar, the applicant argued that the termination order is void and ultra vires because the appropriate procedure was not used in adopting it, i.e., in his opinion, the government should have consulted Via Rail’s Board of Directors before terminating his appointment. This obligation exists based on the combination of subsection 105(6) of the Act and section 24(1) of the Interpretation Act. These provisions read as follows:

 

 

[65]           Subsection 105(6) of the Act provides that the appropriate Minister must consult the Board of Directors of a Crown corporation before recommending the appointment of its Chair. The applicant argues in essence that, insofar as there is nothing provided in this Act regarding removal, we should refer to subsection 24(1) of the Interpretation Act. This provision provides that the power to appoint an officer at pleasure includes the power to suspend or remove the officer. The applicant adds that the removal power provided under the Interpretation Act is exercised according to the same terms as the appointment, i.e. after the appropriate Minister has consulted the Board of Directors, which was not done in this case. 

 

[66]           It appears to me that the issue of whether the appropriate Minister ought to have consulted Via Rail’s Board of Directors before making its recommendation on the termination of Mr. Pelletier’s appointment depends on the scope and meaning of subsection 24(1) of the Interpretation Act. It seems that Canadian authors have not specifically addressed this issue, and the same can be said of the Canadian jurisprudence.

 

[67]           The applicant referred this Court to Gill v. Québec (Ministre de la justice), [1995] R.J.Q. 2690 (S.C.). In Gill, Madam Justice Nicole Duval Hesler, now at the Court of Appeal of Québec, determined that when the act is silent on the conditions for exercising the removal power, this power is exercised following the same rules as for the appointment. The judge, in support of this finding, referred to the remarks of Pigeon J. in his book Rédaction et interprétation des lois. I refer to sections 27 and 28 of this decision:

 

[translation]

The laws [See section 55 of Quebec’s Interpretation Act, R.S.Q. 1993, c. I-16, p. I-16/6.] and the principles of interpretation entrenches the rule that “the right to appointment includes the right to be removed”:

 

Accordingly, when we do not want removals to be subject to a rule different from the rule for appointments, there is nothing more to discuss [The Honourable Mr. Justice Louis-Philippe Pigeon, Rédaction et interprétation des lois. 3rd ed. Quebec: Publications du Québec, 1986, page 35]

 

The Court finds that both a ministerial order (not deputy ministerial) and the approval of the Chief Justice of this Court are required to remove Mr. Gill from his duties as special clerk of the Superior Court for the district of Terrebonne. It therefore follows that this removal cannot be operative without applying to the Chief Justice of the Superior Court to remove his appointment [See Pellerin, supra, note 2, at page 52.]

 

 

[68]           It should be noted that in Commission scolaire de Montréal v. Québec, [1999] J.Q. No. 5341 (S.C.) (Q.L.), Mr. Justice Pierre J. Dalphond, now sitting on the court of Appeal of Québec, followed Duval Hesler J.’s decision.

 

[69]           While I am not formally bound by the decision of the Superior Court of Québec, there is nothing to prevent me from applying a similar solution in this case, since the parallel reading of subsections 55(1) of Quebec’s Interpretation Act and 24(1) of the Canadian Interpretation Act establishes the similarity of both pieces of legislations on this issue. Section 55 of the Interpretation Act, R.S.Q. 1993, c. I-16, reads in essence as follows:

 

[70]           The respondent’s argument on this point of law consists essentially in saying that the applicant’s interpretation adds a condition to the Act, while the text is clear and fully expresses what the legislator intended to express. The respondent also argued that, when Parliament wants to require that a removal be effected on the recommendation of another body, it specifically states as such, as is the case under section 16 of the National Film Act, R.S.C. 1985, c. N-8 and under subsection 31(4) of the Interpretation Act.

 

[71]           I carefully reviewed these arguments and determined that they cannot be accepted in this case.

 

[72]           In fact, I am of the opinion that the interpretation submitted by the respondent is inconsistent with the approach adopted by the Supreme Court in Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, from which I refer to paragraphs 21 et seq.:

Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states:

 

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

 

[73]           First, it is difficult to argue that the text of section 105 of the Act is clear, with regard to removal, since there  is no reference to it, and that is indeed the reason why it is necessary to refer to the principles provided under the Interpretation Act. Second, the interpretation proposed by the respondent indicates that, regardless of the rules prescribed by the law to appoint an officer, it is possible to remove an officer without following any determined procedure. Finally, the fact that the legislator thought it proper to specify in the National Film Act and in the Interpretation Act that the conditions for removal of officers and repealing regulations were the same as the applicable conditions for appointing and adopting, does not have the effect of undermining the general principle that, absent indications to the contrary, the removal is accomplished by following the same procedure as for the appointment. In my view, the legislator specified as such as a matter of caution. I would add that the Interpretation Act is a law of general application whose scope must not be unduly limited.

 

[74]           In my view, the interpretation suggested by Pigeon J. is quite consistent with Parliament’s intention and the purpose of subsection 105(6) of the Act. Indeed, it seems logical to me that Via Rail’s Board of Directors be consulted by the appropriate Minister, since the Minister is in a position to inform the government on the impact of the removal of its Chair on the Crown corporation’s  management. It is also of note that Via Rail was established as a Crown corporation to give it a certain independence from the government, and one of the factors that makes it possible to preserve this independence is the process of consulting the Board of Directors when appointing and removing its Chair.

 

[75]           Therefore, the failure to respect the procedures provided by law to adopt the second termination order affects its validity. This consultation was a condition precedent to the Minister exercising his power to recommend and therefore to the adoption of the Order-in Council. I would point out that the Minister’s obligation to consult Via Rail’s Board of Directors before removing the Chair is not a very onerous burden, insofar as he is not at all bound by the wishes of the Board of Directors.

 

[76]           For these reasons, the application for judicial review is allowed.

 

 

4.      Conclusion

[77]       The Governor General in Council had the duty to act fairly, which implies that the applicant was entitled to impartiality. Considering the significant role that it plays, this procedural guarantee extends to the minister responsible for making a Cabinet recommendation with regard to continuing or terminating the appointment of an officer appointed at pleasure, as is the case with Mr. Pelletier. The Minister had to act impartially, i.e. in a manner that did not raise any reasonable apprehension of bias, which was not the case in this matter. Indeed, the Minister should have consulted Via Rail’s Board of Directors before recommending the removal of its Chair, Mr. Pelletier.

 

[78]       Accordingly, I would allow the application for judicial review and order that the termination order be set aside. I need not declare that the order of appointment remain in effect, as the applicant has requested, since this order was not subsequently validly amended or set aside.

 

[79]       I award costs to the applicant. He asked that costs be awarded to him on a solicitor-client basis. Such costs are awarded where “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties” (Baker, supra, at paragraph 77). Like Pelletier J.A., in my opinion there is no evidence of such conduct in this matter.

 

[80]       That said, given the result of the case, as well as the importance and the complexity of the issues, I award costs on a party-party basis, assessed in accordance with column V of Tariff B of the Federal Courts Rules.

 APPENDIX

 

P.C. 2005-2341

 

   Whereas, by Order in Council P.C. 2001 1294 of July 31, 2001, Jean Pelletier was appointed Chairman of Via Rail’s Board of Directors Canada Inc., effective September 1, 2001, to hold office during pleasure for a term of five years;

 

   Whereas on February 26, 2004, the newspaper La Presse published an account of an interview with Jean Pelletier, in which he made certain declarations with respect to Myriam Bédard;

 

   Whereas at the time of the declarations, Jean Pelletier was the Chairman of Via Rail’s Board of Directors Canada Inc.;

 

   Whereas the declarations were made at a time when the government was encouraging Canadians having any information respecting the sponsorship program to come forward and collaborate with the Commission of Inquiry into the Sponsorship Program and Advertising Activities;

 

   Whereas, on November 18, 2005, the Federal Court ordered that the Order in Council P.C. 2004 158 of March 1, 2004 be set aside and that Jean Pelletier’s case be referred back to the Governor General in Council;

 

   Whereas, by letter dated November 21, 2005, the Minister of Transport invited Jean Pelletier to make submissions in writing as to why his appointment as Chairman of The Board of Directors of Via Rail Canada Inc. should not be terminated;

 

   Whereas Jean Pelletier made submissions to the Minister of Transport in writing on November 30, 2005, and orally on December 1, 2005;

 

 

   Whereas the Governor in Council has considered

 

(a) the La Presse newspaper article of February 26, 2004, and a transcript of the interview that led to it;

 

(b) the letter dated November 21, 2005 from the Minister of Transport to Jean Pelletier;

 

(c) the written submissions by or on behalf of Jean Pelletier received on November 30, 2005;

 

(d) the Report of the Independent Inquiry Officer Michel G. Picher respecting the Departure of Myriam Bédard, of April 8, 2004, submitted by Jean Pelletier on December 1, 2005; and

 

(e) a transcript of the oral submissions made by or on behalf Jean Pelletier on December 1, 2005;

                 

And whereas the Governor in Council has lost confidence in Jean Pelletier as Chairman of Via Rail’s Board of Directors 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 Via Rail’s Board of Directors Canada Inc., made by Order in Council P.C. 2001 1294 on July 31, 2001.

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

DOCKET:                                          T-74-06

 

STYLE OF CAUSE:                          JEAN PELLETIER

                                                            and

                                                            ATTORNEY GENERAL OF CANADA                 

 

 

PLACE OF HEARING:                    MONTRÉAL, QUEBEC

 

DATE OF HEARING:                      JANUARY 22 AND 23, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          LEMIEUX J.

 

DATE OF REASONS:                      MARCH 30, 2007

 

 

APPEARANCES:

 

Suzanne Côté, Patrick Girard	FOR THE APPLICANT
Carole Bureau, Rosemarie Millar	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Stikeman Elliot, S.E.N.C.R.L., srl Avocats 1155, boul. René-Lévesque ouest # 4000 Montréal, PQ H3B 3V2	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT