Date: 20080219
Docket: T-1942-06
Citation: 2008 FC 214
Ottawa,
Ontario, February 19, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
DEMOCRACY
WATCH
Applicant
and
BARRY CAMPBELL
AND
THE ATTORNEY GENERAL OF CANADA
(OFFICE OF THE REGISTRAR FOR LOBBYIESTS)
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review, pursuant to section 18.1 of the Federal Courts Act,
S.C. 2002, c. 8 (Act), of a decision of the Registrar of Lobbyists,
dated October 10, 2006, that the respondent Mr. Barry Campbell did not breach
Rule 8 of the Lobbyists’ Code of Conduct (Code) in 1999.
[2]
This
is the latest in a long-running series of disputes over the interaction between
Mr. Campbell and Jim Peterson, who held the post of Secretary of State
(International Financial Institutions) at the time of the alleged breach of the
Code. Democracy Watch alleges that Mr. Campbell breached the Code
when, as the Chair of the Friends of Jim Peterson, he organized a
benefit dinner for Mr. Peterson’s re-election campaign in 1999, at which $70,
000 was raised, while registered to lobby the Finance Ministry for a variety of
financial institutions. The respondent Barry Campbell notes that Mr. Peterson
sought the advice of the Ethics Counsellor prior to the event, and received his
approval. Contributions to the fundraiser made by financial institutions were
returned and refunded.
[3]
The applicant first
complained about this matter to the Ethics Counsellor on April 13, 2000. Ten subsequent
complaints were made by Democracy Watch, about other matters, to the Ethics
Counsellor between 2000 and 2002. Democracy Watch filed an application for
judicial review in May 2003 related to rulings the Ethics Counsellor had made
on some of those complaints, not including the Campbell matter. My colleague Justice Frederick E. Gibson ruled on July 9, 2004
that one of the rulings (the Fugère ruling) of the Ethics Counsellor was to be
reconsidered due to the appearance of bias, both personal and institutional: Democracy
Watch v. Canada (Attorney General), 2004 FC 969, [2004] F.C.J. No. 1195 [Democracy
Watch 1]. He declined, however, to provide other remedies sought by
Democracy Watch on the basis that the regime overseeing the compliance of
lobbyists with ethical guidelines had been significantly altered by the
enactment of Bill C-4 on May 17, 2003.
[4]
The evidence (Conacher
affidavit) reveals that Michael Nelson was appointed Registrar of Lobbyists in
July 2004. At that time, he was Assistant Deputy Minister (ADM) comptrollership
and administration and performed his functions as Registrar on a part-time
basis.
[5]
In September 2005, he assumed
the role of Registrar on a full-time basis and gave up his position as ADM. The
office of the Registrar was moved from Industry Canada headquarters in Ottawa to a separate location at 255 Albert Street, Ottawa.
I. Security of tenure
[6]
As
a public servant, the tenure of Mr. Nelson is secure; he was appointed by the
Public Service Commission under the Public Service Employment Act. No minister
can terminate his employment.
[7]
The
function of the Registrar of Lobbyists is the responsibility of the Registrar General
of Canada. Even if Mr.
Nelson were replaced as Registrar, he would be eligible for deployment to
another EX-04 position within the public service.
[8]
The
above structure will be further re-organized as an independent and impartial
function when the Federal Accountability Act (F.A.A.) Bill C-2, given Royal
assent on December 12, 2006, is implemented.
[9]
The
former regime of the Ethics Commissioner and the Lobbyist Code, which existed between
1995 and 2004, was fundamentally revised by the creation of the position of “Registrar
of Lobbyists” in 2004. The Registrar who oversees this office reports directly
to Parliament through the Registrar General on an annual basis (see the
Lobbyists Registration Report, 2005-2006, exhibit L: Conacher-Affidavit).
[10]
Since
September 2005, the Registrar of Lobbyists has been a full-time appointment, with
its office located at 255 Albert Street, Ottawa. In February
2006, the Office of the Registrar of Lobbyists (ORL) became a stand-alone
department and the Registrar of Lobbyists was given the authority of a Deputy Head
for the purpose of the Financial Administration Act and other Acts.
[11]
The
ORL was transferred from Industry Canada to the Treasury Board.
Between 2005-2006, the office personnel grew from five to twenty employees and
its tasks were divided into three areas:
a)
An
operations directorate to handle the registration process;
b)
An
investigative directorate to strengthen the enforcement capacity of the ORL;
and
c)
An
office of the Registrar of Lobbyists to deal with the management and
coordination of the ORL.
[12]
The
investigative directorate is responsible for monitoring lobbying activities by
conducting administrative reviews; if necessary, the Royal Canadian Mounted
Police is called in to investigate complaints under the Code.
II. Summary of Justice
Gibson decision of July 9, 2004
[13]
Justice
Gibson reviewed nine complaints by Democracy Watch in its application against
the respondent Campbell.
[14]
He
granted four applications on the ground that there existed, in 1999-2000, a
reasonable apprehension of bias on the part of the then Ethics Counsellor and
his office. He dismissed three other applications on the basis that, on the
totality of the evidence, the decisions of the Ethics Counsellor met the
standard of reasonableness simpliciter.
[15]
He
also would have allowed the ninth application (Fugère ruling) on the ground
that there had been an error committed in the ruling, had he not already found
a reasonable apprehension of bias in that allegation. Finally, he refused to
grant the applicant any of the declarations requested relating generally to the
Ethics Commissioner and his alleged bias against Democracy Watch. He granted
costs in favour of the applicant because it had substantial success in four applications.
[16]
Justice
Gibson found that two primary factors weighed in favour of the finding of bias,
i.e.:
A.
The
office of the former Ethics of Commissioner existed at the “will of the Prime
Minister”; and
B.
The
dual role of the Ethics Counsellor and his office under the Lobbyists
Registration Act and the two related codes, created a conflict of interest
in both the application of resources and in fully and effectively carrying out the
dual mandates.
[17]
I
believe that both those factors have since been eliminated by the structure
presently in place, because security of tenure and independence of action is
assured and the mandate of the Registrar has been significantly narrowed,
eliminating the causes of Justice Gibson’s finding of a reasonable apprehension
of bias.
[18]
The
proposition that a public servant cannot act independently by nature of the
insecurity of his tenure as a public servant has been rejected by the Federal
Court of Appeal in Mohammad v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 363, [1988] F.C.J. No. 1141 (C.A.).
[19]
The
Registrar of Lobbyists, newly created pursuant to the Lobbyists Registration
Act, 1985, c. 44 (4th Supp.) (LRA), wrote to Democracy Watch in
February 2005 to inquire whether the applicant wished him to address the Campbell complaint. As
of that time, no decision had been made on it. The applicant responded on June
17, 2005 that it did wish to proceed with the complaint. After an
administrative review was conducted by the Investigations Directorate of the
Office of the Registrar, the Registrar concluded that he did not have
reasonable grounds to believe that Mr. Campbell had violated Rule 8 of the Code
as alleged by the applicant. Democracy Watch was advised of this decision by
letter dated October 10, 2006.
III. Relevant Provisions
[20]
Rule
8 of the Lobbyists Code reads as follows:
|
Improper
influence
Lobbyists
shall not place public office holders in a conflict of interest by proposing
or undertaking any action that would constitute an improper influence on a
public office holder.
|
Influence
répréhensible
Les
lobbyistes doivent éviter de placer les titulaires d'une charge publique en
situation de conflit d'intérêts en proposant ou en prenant toute action qui
constituerait une influence répréhensible sur ces titulaires.
|
IV. Issues
A.
Did
the Registrar have jurisdiction to investigate the applicant’s complaint
against Mr. Campbell?
B.
Should
the decision of October 10, 2006 be returned for reassessment because of a
reasonable perception of bias?
C.
If
not, what is the appropriate standard of review for assessing the Registrar’s
decision?
D.
Assessed
against that standard, did the Registrar commit an error in his determination
of the applicant’s complaint against Mr. Campbell?
E.
What
relief should be granted?
V. Analysis
A. Did the
Registrar have jurisdiction to investigate the applicant’s complaint against
Mr. Campbell?
[21]
The
respondent Barry Campbell alleges that the Registrar had no jurisdiction to
investigate the applicant’s complaint against him, as the Code has been
significantly altered by statutory and administrative changes in the period
between 1999 and 2006. He submits that the Registrar only has jurisdiction to
enforce the interpretation of the version of the Code operative under
his regime and not previous regimes. I do not agree that this is the case. The
Registrar may assess violations of previous ethics regimes, but must not
retroactively impose his interpretations in those cases. As is not infrequently
the case in this Court, cases may take time to come before the tribunal and to
find that there is no jurisdiction over any complaints brought prior to an
amendment to the governing statute would essentially equate to wiping the slate
clean with every amendment.
[22]
The
Registrar properly took jurisdiction to assess the complaint, which at the
relevant time remained unresolved. He also, properly, applied the
interpretation of the relevant Rule which was in use at that time. In fact, he
noted in his letter informing the applicant of his decision on October 10,
2006:
It would be unfair to retroactively
impose my approach to enforcement of the Lobbyists’ Code of Conduct upon
lobbyists who operated under the previous approach to enforcing the Code.
B. Should
the decision of October 10, 2006 be returned for reassessment because of a
reasonable perception of bias?
[23]
It
is settled law that where breaches of procedural fairness, such as bias on the
part of a decision-maker, are found, the decision must be quashed and the
matter returned for redetermination as demonstrated by the decision of Justice
Gibson in Democracy Watch 1. As in that case, the parties again disagree
on how stringent the assessment of possible bias should be. The applicant favours
a “reasonable apprehension of bias” while the respondent Attorney General
submits that the “open mind” test should apply.
[24]
The
distinction between the two tests rests largely on the extent to which the
decision-maker acts in a quasi-judicial manner. Where the decision-maker is
dealing with policy-centred administrative decisions, he or she is required to
approach the decision with an open mind, amenable to persuasion: Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners
of Public Utilities), [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21. The
respondent Attorney General contends that that is the correct approach in this
matter.
[25]
Where,
however, the decision to be made is more of an adjudicative nature, the
foundational test is that set out by Justice Louis-Philippe de Grandpré in Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369 at 394: “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.”
[26]
As
did my colleague Justice Gibson, I prefer the somewhat stricter test of the
reasonable apprehension of bias in this instance. While the Registrar of
Lobbyists is involved in the development of policy regarding the constraints
imposed on lobbyists under the LRA, his decisions with regard to the
enforcement of those rules are more of an adjudicative task than one of
administration. I do accept the argument of the respondent Attorney General
that the applicant’s reliance on Wewaykum Indian Band v. Canada, 2003
SCC 45 , [2003] 2 S.C.R. 259 is misplaced, as that case clearly relates only to
those who adjudicate in law and is not relevant to the decision of the
Registrar. This does not, however, affect my view of the appropriate test.
[27]
Having
reached the conclusion that the applicant’s allegation of bias must be
evaluated as would a reasonable person, informed of the circumstances, the next
step is to assess those allegations. I would note, at this juncture, that Justice
Gibson quashed three decision of the Ethics Counsellor in 2004 for bias, both
personal and institutional. In this proceeding the applicant contends that the
Registrar is also biased and that his decision not to conduct a full
investigation into the Campbell matter should likewise
be quashed.
[28]
The
applicant argues that the Registrar displayed bias in continuing to apply the
Advisory Opinion established by the Ethics Counsellor, whose decisions were
returned for reconsideration on account of bias, in assessing Rule 8 of the Code.
This same opinion was addressed by Justice Gibson in Democracy Watch 1,
in which he noted at paragraph 85 that, in the absence of the finding of bias
on the part of the Counsellor, he would have held that his interpretation of
Rule 8 was not an unreasonable interpretation. I would agree with my colleague
that, while strict, the Counsellor’s interpretation of Rule 8 was not
unreasonable. The Registrar, therefore, does not display bias towards the
applicant and similar groups by applying it. I would note that a finding of
bias on specific points of an officer’s conduct will not taint every decision
or policy guideline that person has ever produced.
[29]
The
applicant submits that the Office of the Registrar is tainted by institutional
bias because of his lack of security of tenure in the position, the lack of
criteria or qualifications required for his appointment, the requirement for
approval of the Office’s budget by the Treasury Board, indicia of
under-resourcing, the alleged two-year delay in ruling on the Campbell
complaint, and the failure to respond to other complaints which were passed on
to him unanswered by the elimination of the position of Ethics Counsellor, see 2747-3174
Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, [1996]
S.C.J. No. 112 at para. 951.
[30]
The
respondent Attorney General argues that, especially following the extensive
changes which occurred in 2006, the Registrar’s Office is independent because
the Registrar’s performance pay is fixed at a prescribed rate, his employment
in the public service is secure due to his classification level, he has
discretion over the budget and staffing as a stand-alone department and that
both the delay and the priorities set by the Registrar are insufficient to show
bias.
[31]
In
Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539, Justice William Ian Corneil Binnie set out
the relevant test at paragraph 195:
The test for institutional impartiality
is whether a well-informed person, viewing the matter realistically and
practically and having thought the matter through, could form a reasonable
apprehension of bias in a substantial number of cases (citations removed)
[32]
At
issue in this case is one particular decision of the Registrar. The applicant
alleges that seven other cases remain outstanding at present, but information
about those cases is not before me and thus the allegations remain unproven. I
would note that the requirement of multiple instances of a reasonable
apprehension of bias is not possible on the facts of a single case. It is,
therefore, not possible for the applicant to meet the admittedly high threshold
required for the test of institutional bias in this proceeding.
[33]
The
applicant’s reliance on the delay of almost two years bears further inspection.
The Registrar inherited unresolved complaints from his predecessor in May 2004.
He sent a letter to the applicant in February 2005 to inquire whether it wished
to pursue the complaint against Mr. Campbell. In June 2005, the applicant
responded in the affirmative. The ensuing investigative review, which included interviews,
research into the complaint and the circumstances of the event from which it
sprang and other sources of information, is well-documented in the tribunal record.
That record clearly shows that from at least March 2006 to the date of the
decision of the Registrar the investigation was diligently undertaken. The
activities of the Investigations directorate in the period between June 2005
and March 2006 are not detailed, but I cannot see that, even if nothing had
been done in that period, it is sufficiently lengthy as to reach the high
standard required to substantiate an allegation of bias.
[34]
Likewise,
the other indicia of institutional bias to which the applicant points are not
as damaging as it would contend. Complete institutional independence, which
appears to be the standard asserted by Democracy Watch, is required for the
effective working of the judiciary, but it is widely recognized that tribunals
and other federal decision makers need not be accorded that standard. Operational
decisions, which place emphasis on certain types of complaints, most notably
those which might result in criminal charges and are thus subject to
limitations periods, are reasonable where they do not effectively cut off the
assessment of other complaints. It is clear that the complaint against Mr.
Campbell was assessed, and the delay was not unreasonable, as discussed
previously. I cannot agree with the applicant that the prioritizing of
particular cases indicates that the Office of the Registrar is incapable of
carrying out its obligations.
[35]
For
the above reasons, I do not find that the decision of the Registrar should be
vacated for bias.
C.
If
not, what is the appropriate standard of review for assessing the Registrar’s
decision?
[36]
The
applicant argues that the applicable standard of review is correctness. The
respondent Attorney General submits it is reasonableness simpliciter. The
respondent Barry Campbell contends that the decision of the Registrar should be
overturned only if patently unreasonable.
[37]
The
pragmatic and functional approach to determining which standard to apply
considers four factors: (1) a privative clause, right of appeal or silence in
the governing statute; (2) the relative expertise of the tribunal; (3) purpose
of the legislation; and, (4) nature of the question: Law Society of New
Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 [Ryan].
[38]
The
first factor is neutral in this instance, as the Code contains neither a
privative clause nor a statutory right of appeal.
[39]
The
Registrar is specifically tasked with investigating and punishing breaches of
the Code, which gives him greater expertise in that field than the
reviewing Court. On the other hand, this decision required him to interpret the
Code and test the conduct of Mr. Campbell against that interpretation. This
sort of exercise is well within the expertise of the Court. This factor is,
therefore, neutral. I would note that the applicant is incorrect in submitting
that the personal experience of the Registrar is relevant to this
assessment. It is the institution of a tribunal or other decision-maker which
is to be compared in expertise against that of the reviewing Court.
[40]
The
purpose of the legislation and the relevant provision points towards greater
deference. The Code seeks to define and regulate the relationship
between lobbyists and members of the federal government. This is an area of
great importance to the general public, and the Registrar must balance the
competing interests of these three groups in coming to his decisions, all the
while bearing in mind a variety of policy considerations.
[41]
Finally,
the nature of the question at issue in this proceeding is one which is more
legal than administrative in nature, as it required the Registrar to assess the
compliance of Mr. Campbell against his interpretation of the Code. This
points to less deference.
[42]
Having
assessed the Registrar’s decision by a pragmatic and functional analysis, I
conclude that the applicable standard of review is reasonableness simpliciter,
which does not allow me to replace the Registrar’s decision unless it fails to
stand up to a somewhat probing examination: Ryan, at paragraphs 50-52.
D.
Assessed
against that standard, did the Registrar commit an error in his determination
of the applicant’s complaint against Mr. Campbell?
[43]
As
noted by the applicant at paragraph 65 of its memorandum of fact and law, it is
the narrow interpretation of Rule 8 of the Code with which it takes
issue. It submits that the Registrar interpreted “improper influence” overly
narrowly such that the threshold is equivalent to illegality, whereas
impropriety sufficient to affect the confidence of the public would be a more
appropriate interpretation.
[44]
The
respondent Mr. Campbell suggests that this issue was decided against the
applicant in Democracy Watch I and should not, therefore, now be re-litigated.
I would point out, however, that the comments of Justice Gibson in this regard
were made in obiter, as he had already decided the matter on the basis
of bias. The question is not res judicata.
[45]
That
said, however, I agree with both respondents in that I do not find the decision
of the Registrar unreasonable. He assessed the evidence about Mr. Campbell’s
fundraising for Mr. Peterson, applied the admittedly high threshold test of the
Advisory Opinion and found that there were not sufficient indicia of improper
influence to support reasonable grounds of belief that Mr. Campbell’s actions
constituted a breach of Rule 8. While the “reasonable grounds to believe” test
is not a significant threshold, as noted by Justice Gibson in Democracy
Watch I, it behove the Registrar to not merely have reasonable belief that
there was some appearance of impropriety, but that there had been a breach of
Rule 8. He did not find that, and was not unreasonable in doing so.
E. What
relief should be granted?
[46]
The
applicant asks this Court to quash the finding of the Registrar, provide him
with the correct interpretation of Rule 8 and send the matter back for an
investigation pursuant to section 10.4 of the LRA. Alternatively, it
requests that the Court quash the Ruling, provide a reasonable interpretation
of Rule 8 and return the matter to the Registrar for reconsideration. In the
event of a finding of bias, it seeks to have a declaration that it was deprived
of its right to a fair hearing contrary to section 2(e) of the Canadian Bill
of Rights, S.C. 1960, c. 44. In any event, it requests costs on a
substantial indemnity basis.
[47]
The
respondent Barry Campbell seeks to have the application denied with costs. He
notes that no useful purpose is being served by prolonging and repeating reviews
of the treatment of the complaint against him in the absence of any evidence
that Rule 8 was contravened.
[48]
The
respondent Attorney General notes that the applicant’s request for relief
constitutes a request for mandamus, and that one of the requirements for
such an order is that the duty at issue must be owed to the applicant: Apotex
Inc. v. Canada (Attorney General) (C.A.), [1994] 1 F.C. 742, [1993] F.C.J.
No. 1098. He submits that no duty is owed to the applicant and therefore there
should be no mandamus order issued by the Court. He further argues that
the applicant’s request for declaratory relief is likewise inappropriate as it
shares no legal relationship with the Registrar and that the Court lacks
jurisdiction to make declarations on findings of fact: Canada v. Solosky,
[1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745. Finally, he seeks his costs of the
application.
[49]
Given
that I have found that there was no bias and that the Registrar’s decision was
not unreasonable and should not, therefore, be vacated, I need not find on the
issues of the relief sought by the applicant. I would finally note that Mr.
Campbell has a valid point about the futility of repeated assessments of this
case, given the changes of regime which have occurred in the intervening eight
years.
VI. Costs
[50]
The
applicant seeks costs against the respondent, Attorney General of Canada, but
not against the respondent Barry Campbell.
[51]
The
respondents seek costs against the applicant, invoking the general rule that
the losing party bears the costs. This rule applies for and against the Crown
(Rule 400(2) of the Federal Court Rules). The applicant submits that the
objective of the proceedings was a cause of public interest and that the
interpretation of Rule 8 of the Lobbyists Act required clarification.
Therefore, whatever the result of the application, even if it were dismissed,
it was entitled to costs.
Reese v. Alberta (Ministry of Forestry, Lands and
Wildlife), 133
A.R. 127, [1992] A.J. No. 745;
Stevens v. Conservative Party of Canada, 2005 FCA 383, [2005] F.C.J.
No. 1890
[52]
The
applicant’s attorneys seek costs because the proceedings were in the public
interest and even though they were acting pro bono in this case, 1465778 Ontario Inc. et
al. v. 1122077 Ontario Limited et al. (2006), 82 O.R. (3d)
757, 275 D.L.R. (4th) 321 (Ont. C.A.)
[53]
The
respondents, particularly Mr. Campbell, counter that this application was without
foundation as the issues involved had already been decided by Justice Gibson in
a case based on similar allegations in Democracy Watch 1 and where the
applicant’s application on that point was dismissed with costs.
[54]
The
respondent Campbell’s counsel
argues that the applicant’s proceedings is not only unnecessary but is part of a
vendetta directed against his client, a form of persecution which was launched
nearly eight years ago and continues today.
VII. Analysis
[55]
All
the main issues raised by this application were dealt with by Justice Gibson in
the first case between the same parties, i.e. Democracy Watch 1. It is true
that four of the complaints were to be reconsidered because of the appearance
of bias, both personal and institutional, but the other complaints were
dismissed.
[56]
Since
then, there have been fundamental changes to the Lobbyist legislation, due to the
creation of the office of the Registrar of Lobbyists. It cannot be said to cause
a reasonable apprehension of personal and institutional basis as it is currently
structured.
[57]
The
present application is centered upon the interpretation of Rule 8 of the Code
and the applicable standard of review which were both thoroughly assessed by
Justice Gibson in his decision of 2004.
[58]
He
decided that the standard of review of the impugned ruling was reasonableness simpliciter
(at paragraph 65 of his decision). He granted the application on four
complaints solely for reasons of reasonable apprehension of bias but he refused
to find any other reviewable error.
[59]
Justice
Gibson specifically decided that Rule 8 of the Code was not
“unreasonable” and need not be interpreted to include an appearance of conflict
of interest as well as actual conflict of interest (at paragraph 85 of his
decision).
[60]
This
analysis of Justice Gibson’s decision reveals that all the main issues raised
in the present application were fundamentally identical to those resolved in
his decision.
[61]
The
interpretation of Rule 8 of the Code and the Registrar’s reliance upon
it are not new issues.
[62]
The
factors which constituted appearance of bias in the first decision have been
eliminated by the fundamental changes made by the Office of the Registrar of
Lobbyists.
[63]
Therefore,
the applicant’s contention that this application raised questions of public interest
is not well founded. Furthermore, I notice that Justice Gibson granted the
first application in favour of the applicant “with costs”.
[64]
The
general rule in the awarding of costs is that the losing party must assume the
costs. Even though Democracy Watch is a non-profit organization motivated by
the public interest, these proceedings have caused the respondents to incur
substantial costs to defend themselves.
[65]
Therefore,
costs will be granted in favour of the respondents against the applicant.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application is dismissed with costs.
"Orville
Frenette"
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