Docket:
T-363-13
Citation: 2014 FC 21
Ottawa, Ontario, January 8, 2014
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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GARTH H. DRABINSKY
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Applicant
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and
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THE ADVISORY COUNCIL OF THE ORDER OF CANADA AND THE ATTORNEY
GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr Garth H Drabinsky is a well-known impresario
and producer. In 1995, the Governor General awarded Mr Drabinsky the Order of
Canada based on his contribution to the entertainment industry.
[2]
In 2009, Mr Drabinsky was convicted on two
counts of fraud in respect of the management of his company, Livent. The
Ontario Superior Court of Justice sentenced him to 7 years of imprisonment. On
appeal, the Ontario Court of Appeal upheld the convictions but reduced the
sentence to 5 years: R v. Drabinsky, 2011 ONCA 582.
[3]
In June 2012, while Mr Drabinsky was still in
custody, the Secretary General to the Governor General wrote to inform him that
the Advisory Council of the Order of Canada planned to consider whether his
appointment to the Order should be terminated. The Secretary General told Mr
Drabinsky that he could make written submissions to the Council and set a
deadline of July 7, 2012.
[4]
Counsel for Mr Drabinsky replied to the
Secretary General’s letter and requested an extension of time to make
submissions. In particular, counsel requested an extension until January 2013
when Mr Drabinsky expected to be released on day parole, and would therefore be
in a better position to assemble the materials that he wished to provide to the
Council.
[5]
The Secretary General replied to counsel’s
letter and stated that the Council had agreed to give Mr Drabinsky a one-month
extension until August 7, 2012.
[6]
Mr Drabinsky made extensive representations to
the Council on August 3, 2012 – 17 pages of written submissions and voluminous
supporting documentation, including a copy of his autobiography, entitled “Closer
to the Sun”. However, he also stated that he reserved the right to add
substantially to those submissions following his release. The Secretary General
acknowledged receipt of Mr Drabinsky’s materials, but said nothing about allowing
further submissions.
[7]
The Council met in November 2012 and decided to
recommend to the Governor General that Mr Drabinsky’s appointment be rescinded.
The Governor General accepted the Council’s recommendation and signed an
Ordinance to that effect. The Secretary General informed Mr Drabinsky of the
Governor General’s decision, which was later published in the Canada Gazette.
[8]
Mr Drabinsky argues that the Council unfairly
refused him an opportunity to make further written submissions and failed to
comply with the procedures it was bound to follow before terminating his
appointment.
[9]
Mr Drabinsky purports to challenge a series of
decisions – the Council’s setting of the August 7, 2012 deadline; the Council’s
apparent refusal of an extension of time to January 2013; the Council’s
recommendation to terminate his appointment; and the Governor General’s
acceptance of that recommendation, as reflected in the Ordinance. Looking at
the circumstances as a whole, it appears to me that Mr Drabinsky is actually
challenging the decision of the Governor General to revoke his appointment to
the Order of Canada, and is citing steps, which he regards as unfair, along the
route to that decision. Accordingly, in his view, I should overturn the
Governor General’s decision because it was the product of an unfair process.
[10]
The respondents argue that neither the Council’s
nor the Governor General’s decisions are amenable to judicial review and, even
if they were, Mr Drabinsky has failed to show that he was treated unfairly.
[11]
I can find no basis for allowing this
application. While I accept Mr Drabinsky’s contention that judicial review is
available to a person in his circumstances, albeit on limited grounds, I find
that the Secretary General, the Council, and the Governor General treated Mr
Drabinsky fairly and, in particular, respected the procedures that he would
have legitimately expected to be followed. I must, therefore, dismiss this
application for judicial review.
[12]
The following issues arise:
1. Can
the Court review the decision to revoke Mr Drabinsky’s appointment to the Order
of Canada?
2. If
so, did the process that led to the termination of Mr Drabinsky’s appointment, meet
his legitimate expectations about the procedure to be followed?
II. The
Legal Framework
[13]
The Constitution
of the Order of Canada (s 7(1) – see Annex for all provisions cited)
provides that the Council is made up of:
• The Chief Justice of Canada, who chairs the Council;
• The Clerk of the Privy Council;
• The Deputy Minister of the Department
of Canadian Heritage;
• The Chairperson of the Canada Council;
• The President of the Royal Society of
Canada;
• The Chairperson of the Board of Directors
of the Association of Universities and Colleges of Canada; and
• Not more than five other members
appointed by the Governor General on the recommendation of the Council.
[14]
A person’s
membership in the Order of Canada can be terminated if the Governor General issues
an Ordinance to that effect (s 25(c)).
[15]
The Policy and
Procedure for Termination of Appointment to the Order of Canada sets out the
process by which a person’s membership in the Order can be terminated. In
essence, after considering the evidence, ascertaining the relevant facts, and
being guided by the principle of fairness, the Council may recommend
termination. The relevant provisions of the Policy (ss 2 to 5) include the
following steps:
• The Council must consider termination
if the person has been convicted of a criminal offence;
• The Secretary General must notify the
affected person that his or her appointment is under consideration;
• The notice must advise the person
that he or she may, within the time period set out in the notice, make
representations to the Council; if the person does not reply within the
applicable time frame, the process will continue to unfold;
• The Secretary General will forward
the person’s representations to the Council;
• The Council will duly consider the
representations and prepare a report setting out its findings and
recommendations;
• After receiving the Council’s report,
the Governor General can either advise the person, through the Secretary
General, that he or she remains in the Order in good standing, or issue an
Ordinance terminating the person’s appointment; and
• Notice of termination will be
published in the Canada Gazette.
III. Issue
One – Can the Court review the decision to revoke Mr Drabinsky’s appointment?
[16]
The respondents argue that the Governor
General’s decision is not amenable to judicial review because his power
emanates from the Crown Prerogative.
[17]
Clearly, the courts have limited powers to
review decisions based on the Crown Prerogative. However, in my view, a
decision terminating an appointment to the Order of Canada can be challenged in
court, but only on narrow grounds.
[18]
Generally speaking, decisions based on the Crown
Prerogative can be judicially reviewed solely where a person’s rights or legitimate
expectations have been affected (Black v Canada (Prime Minister),
[2001] OJ No 1853, at para 51) [(Black (1)]. It follows that, since no Canadian
citizen can claim a “right” to an honour (Black( 1), at para 60), a
decision to grant, or not to confer, or even to withdraw an honorary appointment
does not affect a person’s rights, and cannot be challenged in court.
[19]
Therefore, the Governor General’s decision
cannot be contested on the ground that it affects Mr Drabinsky’s rights. By
contrast, the doctrine of legitimate expectations relates to procedural
fairness, not substantive rights (Baker v Canada (Minister of Citizenship
and Immigration) (1999), 174 DLR (4th) 193 (SCC), at 212-214).
Accordingly, the sole basis on which the Governor General’s decision can be
reviewed is procedural [Black (1)]. The question is whether the process
leading to the termination of the appointment met the affected person’s legitimate
expectations.
[20]
In a case dealing with potential termination of
an appointment to the Order of Canada, Justice Yves de Montigny recognized that
the procedure set out in the Policy created a legitimate expectation that could
give rise to a court challenge: Black v Advisory Council for the Order of
Canada, 2012 FC 1234, at para 63 [Black (2)]. There, Mr Black
challenged a decision of the Council denying him an opportunity to make oral
submissions. Justice de Montigny held that the Council’s decision could only be
challenged on the procedural question of whether Mr Black’s legitimate
expectations had been met. In the end, he found that the Council was not
obliged to afford Mr Black an oral hearing. The Federal Court of Appeal agreed
that an oral hearing was not required, but expressed no opinion on the question
of whether the decision was actually amenable to judicial review, or on the
doctrine of legitimate expectations: 2013 FCA 267, at para 7. In other words,
it appears that the Court assumed without deciding that the Council’s decision
was amenable to judicial review.
[21]
The issue in Black (2) differs from the
issue that Mr Drabinsky is raising here. As discussed above, I do not interpret
Mr Drabinsky’s application as challenging a particular procedural decision made
along the way toward the ultimate decision of the Governor General. Rather, he argues
that the overall process followed by the Council leading to that decision was
unfair because it failed to correspond with his legitimate expectations about
the procedure to be followed.
[22]
In my view, a person who feels aggrieved by a
decision of the Governor General terminating his or her appointment to the
Order of Canada can challenge that decision on procedural grounds based on the
doctrine of legitimate expectations. I believe this approach would be
consistent with Black (1). There, the Ontario Court of Appeal observed
that a decision of the Prime Minister to oppose the awarding of an appointment
to a Canadian citizen by a foreign government could be reviewed on grounds that
legitimate expectations about the procedure to be followed had not been met. (Black
(1), at para 61).
[23]
Similarly, I have no doubt that the Ordinance
terminating Mr Drabinsky’s Order of Canada can be challenged by way of judicial
review on the basis that his legitimate expectations about the process that
would be followed en route to that decision were not met.
[24]
The respondents also argue that this issue is now
moot since any procedural irregularities took place before the Ordinance was
issued. Once the Ordinance was signed, they say, none of the steps leading to
that decision can now be challenged. In my view, given my interpretation of Mr
Drabinsky’s application for judicial review (ie, that it challenges the
Governor General’s decision), and my conclusion that the Ordinance is open to
review on procedural grounds, Mr Drabinsky’s application cannot be moot.
Clearly, there remains a live controversy between the parties.
IV. Issue
Two – Did the process that led to the termination of Mr Drabinsky’s
appointment, meet his legitimate expectations about the procedure to be
followed?
[25]
Mr Drabinsky argues that the process that
resulted in the Governor General’s decision to terminate his appointment to the
Order of Canada did not correspond with the procedures that have been set out
in the applicable Policy. In particular, Mr Drabinsky argues that the Council
can make a recommendation to the Governor General to terminate a person’s
appointment only after ascertaining “the relevant facts” (s 2). According to
Mr. Drabinsky, the Council was required to balance his criminal convictions against
all factors favouring retention of his appointment. Since he had a limited
opportunity to make it aware of all those positive factors, the Council was not
in a position to ascertain the relevant facts.
[26]
In my view, the conduct of the Council and the Governor
General respected the steps set out in the applicable process – identifying the
applicable deadline, extending the deadline, receiving written submissions, Council’s
consideration of those submissions, its report to the Governor General, the
Governor General’s consideration of that report, the Governor General’s signing
of the Ordinance, the communication of the decision to Mr Drabinsky, and the
publishing of the decision in the Canada Gazette.
[27]
While Mr Drabinsky complains that he was
unfairly denied a chance to present supporting documentation, I note that in
his letter of August 3, 2012, Mr Drabinsky did not explicitly request a further
extension of time to make additional submissions. Rather, he said he reserved
the right to do so, even though there was no apparent legal basis on which he
could have asserted such a right.
[28]
In fact, after receiving the acknowledgement of
the Secretary General dated August 23, 2012, Mr Drabinsky said nothing more to
the Council about his parole status or his capacity to make further
submissions, even though that was the basis of his suggestion that he would be
able to make fuller representations at a later date. In fact, he did not follow
up in any way to the Secretary General’s letter of acknowledgement, which did
not grant him any additional opportunity to make further submissions.
[29]
On these facts, I can find no basis for a
legitimate expectation that the Council would grant Mr Drabinsky a further
extension of time to make submissions beyond those he provided in August 2012.
[30]
Mr Drabinsky also argues that he was entitled to
receive immediate notice of the Governor General’s acceptance of the Council’s
recommendation, and to make submissions during the period of time between that
approval and the issuance of the Ordinance. I see no basis for any legitimate
expectation that he would be afforded an opportunity to make additional
representations at that stage. He was given a reasonable amount of time to make
submissions to the Council. His only legitimate expectation was that those
submissions would be reviewed by the Council and taken into account in its
recommendation to the Governor General. And they were.
[31]
Mr Drabinsky maintains that the Council had an
obligation to consider all relevant evidence and, because he could have
supplied further documentation, the Council failed to discharge its duty.
However, the question of relevance had to be determined by the Council, not by
Mr Drabinsky. While he may have felt he had more evidence to supply, the
Council obviously believed it had all the relevant evidence it needed in order to
make a recommendation to the Governor General.
[32]
It must be remembered that once Mr Drabinsky had
been convicted of a crime the Council had no choice but to consider whether his
appointment should be terminated. It had no alternative. The Policy distinguishes
between criminal convictions and other grounds for termination. In respect of the
former, the Council acts solely on the basis of the conviction, which suggests
that there may be a limited range of other evidence that would be relevant to
its deliberations. Where the Council considers termination on other grounds (eg
whether the person’s conduct constitutes a significant departure from
generally-recognized standards of public behaviour which is seen to undermine
the credibility, integrity or relevance of the Order), it must obviously weigh
numerous factors. The range of relevant evidence would likely be wider there than
in respect of criminal convictions.
[33]
In sum, I cannot conclude that the process
leading to the decision to terminate Mr Drabinsky’s appointment failed to meet
his legitimate expectations about the process that would be followed along the
way.
V. Conclusion
and Disposition
[34]
The decision to terminate Mr Drabinsky’s
appointment is amenable to judicial review based on his legitimate expectations
about the procedure that would be followed. However, in my view, the Council
and the Governor General respected the applicable procedures, and provided Mr
Drabinsky a fair chance to make submissions opposing the termination of his
Order of Canada. Therefore, there is no basis on which to overturn the Governor
General’s decision.
[35]
I must, therefore, dismiss this application for
judicial review, with costs. The parties agree that costs should be fixed in
the amount of $5,000.00.
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