Docket: T-1712-15
Citation:
2016 FC 829
Ottawa, Ontario, July 19, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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CONSTABLE
ROBERT MCBAIN
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
the decision of the Commissioner of the Royal Canadian Mounted Police [the
RCMP], determining that the Applicant had brought discredit on the RCMP by
conducting himself in a disgraceful manner, and directing the Applicant to
resign from the RCMP within 14 days or be dismissed.
II.
Background
[2]
The Applicant, Robert McBain, held the rank of
Constable at the High Level RCMP Detachment in Alberta at all material times.
[3]
On March 25, 2008, the Appropriate Officer Representative
of “K” Division [AOR] initiated a formal disciplinary hearing against the
Applicant alleging he had contravened Part III of the Royal Canadian Mounted
Police Regulations, 1988, SOR/88-361 [the Code of Conduct], since repealed.
[4]
The Notice of Disciplinary Hearing set out two
allegations against the Applicant. Allegation 1 alleges that on January 27,
2007, the Applicant conducted himself in a disgraceful manner by having
consensual sexual intercourse during a contemporaneous professional interaction
with a citizen [the Complainant] while on duty, and in uniform, contrary to
subsection 39(1) of the Code of Conduct.
[5]
The particulars describe that the Applicant had
been patrolling the Meander River First Nation community and agreed to help the
Complainant, who was intoxicated, find her lost keys. Upon forcing open the
door to her locked residence, the Applicant and the Complainant had sexual
intercourse, after which the Applicant left.
[6]
Paragraph 5 of Allegation 1 describes that on
March 23, 2007, another officer, Constable Watts, attended a complaint of an
intoxicated female – the Complainant – who disclosed she had been sexually
assaulted by a member of the RCMP. An investigation ensued and upon
questioning, the Applicant denied having any sexual relationship with the
Complainant to a superior ranked officer.
[7]
Paragraph 6 of Allegation 1 describes that on
January 28, 2008, the Applicant completed a voluntary statement admitting he
had consensual sexual intercourse with the Complainant in her residence.
[8]
Allegation 2 alleges that the Applicant
knowingly and willfully made a false and misleading statement to a member
superior in rank, and contains the identical particulars set out in paragraphs
5 and 6 of Allegation 1.
A.
The Disciplinary Hearing
[9]
The Allegations were put before an RCMP
Adjudication Board [the Board] appointed pursuant to Part IV of the Royal
Canadian Mounted Police Act, RSC 1985, c R-10, as amended [the Act], and a
disciplinary hearing was held on December 14, 16, and 18, 2009.
[10]
At the hearing, the Applicant, through his
Member Representative [MR], entered a qualified admission “that he engaged in disgraceful conduct by having consensual
sexual relations with [the Complainant] on January 27, 2007” while on
duty and in uniform.
[11]
Following this admission, the AOR withdrew
Allegation 2, but informed it would be calling witnesses on the issue of
consent. Neither representative advised the Board whether the withdrawal of
Allegation 2 affected the identical paragraphs (5 and 6) of Allegation 1.
[12]
The MR did not object to the admission of
evidence on the issue of consent, but indicated that the wording of Allegation
1 may not support its examination. He directed the Board to the decision in Gill
v Canada (Attorney General), 2007 FCA 305 [Gill], a case which found
that as a matter of procedural fairness, findings of misconduct must be
restricted to matters raised in the allegations and particulars.
[13]
The Board heard evidence on the issue of consent
that included testimony by two witnesses called by the AOR, the Complainant,
Constable Watts, a friend of the Complainant, and the Applicant.
[14]
The Board rendered an oral decision at the
conclusion of the hearing, and provided written reasons dated January 12, 2010,
finding that while in uniform and on duty, the Applicant engaged in sexual
relations with a citizen. The Board dismissed the joint submission the parties
had submitted on sanction that agreed to a reprimand, professional counselling,
and the forfeiture of 10 days’ pay, and instead directed that the Applicant resign
from the RCMP within 14 days or be dismissed (The Appropriate Officer of
"K" Division and Constable McBain (2009), 5 AO (4th) 136).
B.
The Appeal
[15]
The Applicant appealed the Board’s decision on
the merits, alleging the hearing was procedurally unfair, and also on the
sanction imposed, claiming that the Board erred in rejecting the parties’ joint
submission on sanction and in its assessment of the aggravating factors.
[16]
Pursuant to section 45.15 of the Act, the appeal
was referred to the RCMP External Review Committee [the ERC]. The ERC issued a
non-binding recommendation report [ERC Report] dated February 26, 2015, finding
the Board had erred by:
- failing to
clarify whether particulars 5 and 6 of Allegation l (duplicative of
Allegation 2) had been withdrawn;
- failing to
clarify whether sexual assault was alleged and thus whether consent was a
relevant issue;
- admitting
irrelevant evidence; and
- relying
extensively on inadmissible evidence to make findings of credibility, to
identify mitigating and aggravating factors, and to determine sanction.
[17]
The ERC found that the Applicant’s right to
procedural fairness had been seriously breached, and his right to a fair
hearing prejudiced. It also found that the Board’s reasons on sanction
reflected a lack of consideration of the joint submission, and the
circumstances under which the Board was entitled to depart from that
submission. The ERC recommended that the Commissioner (i) allow the appeal on
the merits and order a new hearing, or alternatively (ii) allow the appeal on
sanction and impose the sanction placed before the Board in the joint
submission.
C.
The Commissioner’s Decision
[18]
It is the Commissioner’s Decision, rendered on
September 11, 2015, that is under review [the Decision]. The Decision is lengthy
and includes summaries and excerpts of both the Board’s findings at the
disciplinary hearing, and of the ERC Report.
[19]
Though the Commissioner noted he is not bound by
the ERC’s findings or recommendations (subsection 45.16(6) of the Act), he
agreed that the Board had breached the Applicant’s right to procedural fairness
and to a fair hearing, which rendered the Board’s Decision invalid.
[20]
The Commissioner found that once the AOR
withdrew Allegation 2, any references to misleading a superior in Allegation 1
became irrelevant and should not have been considered. He found that the Board
did not compartmentalize the evidence, and erred by referencing the Applicant’s
misleading of a superior throughout the Decision.
[21]
Moreover, the scope of Allegation 1 concerns
consensual sexual relations, and does not encompass sexual assault. Though it
was not improper for the Board to hear the evidence prior to determining its
admissibility, once the evidence was found to be irrelevant and inadmissible,
it should have been disregarded.
[22]
The Commissioner acknowledged that breaches of
procedural fairness usually result in the matter being reheard by the Board.
However, on the basis of the limited exception set out by the Supreme Court in Mobil
Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR
202 at paragraphs 51-54 [Mobil Oil] (more recently applied in Renaud
v Canada (Attorney General), 2013 FCA 266 at para 5), he concluded he would
not remit the matter, as “the circumstances will
inevitably lead to the same result on the merits of Allegation 1”.
Moreover, subsection 45.16(2)(c) of the Act provides that the Commissioner may
dispose of an appeal by “allowing the appeal and making
the finding that, in the Commissioner’s opinion, the adjudication board should
have made”.
[23]
The Commissioner found that (i) the Applicant’s
admission to the alleged disgraceful conduct, (ii) the passage of time, and
(iii) the preponderance of relevant evidence that would be brought to bear,
supported his decision not to return the matter to a different Board.
[24]
Applying the test for disgraceful conduct, the
Commissioner concluded that a reasonable person with knowledge of all the
relevant circumstances, including the realities of policing in general and the
RCMP in particular, would be of the opinion that having sexual relations while
in uniform and on duty is disgraceful and sufficiently related to the
employment situation so as to warrant discipline.
[25]
Turning to the issue of the Board’s rejection of
the joint submission on sanction, the Commissioner acknowledged the ERC’s
recommendation that the only admissible evidence available for determining
sanction was the Applicant’s admission, the evidence of the two
character/performance witnesses called by the MR during the sanction hearing,
and the documentary evidence filed in support of the Applicant.
[26]
However, the Commissioner was not convinced he
was required to ignore “even the most relevant portions
of the testimony of the Complainant and her friend”. He did however
disregard the entire testimony of the Applicant and of Constable Watts, and
that of the Complainant and her friend, apart from the following evidence:
- the events took
place in the First Nation community of Meander River;
- the Complainant
was not able to locate her house keys, and so she asked the spouse of her
friend to open her door but her friend told her to find someone else;
- the Complainant
flagged down the Applicant and asked him to push open her door which he
eventually did;
- the sexual
activity occurred in the Complainant’s bedroom; and
- later the same
day, the Complainant returned to the house of her friend and told her that
“she had sex with a cop”.
[27]
The Commissioner recognized that sanctions are
fact-driven and discretionary determinations (Gill, above, at para 14; Elhatton
v Canada (Attorney General), 2014 FC 67 at para 72). He then applied the
three-part test for determining an appropriate sanction:
a.
determine the appropriate range of sanction,
given the seriousness of the conduct;
b.
determine any mitigating and/or aggravating
factors; and,
c.
select a penalty that best reflects the severity
of the misconduct and the nexus between the misconduct and the requirements of
the policing profession.
[28]
The range of sanctions related to incidents of a
sexual nature while on duty spans from forfeiture of pay to dismissal.
[29]
The Commissioner recognized as mitigating
factors, the fact that the Applicant had admitted to Allegation 1, offered an
apology before the Board, enjoyed the support of other members including the
Commanding Officer, received consistently high performance assessments, acted
out of character, and had difficulty establishing a social/work balance in part
due to the remoteness of his community. In terms of aggravating factors, the
Applicant encountered the Complainant in a professional capacity while she was
seeking his assistance, and was in an Aboriginal community.
[30]
The parties relied on a number of cases to
support their joint submission on sanction, which the Commissioner divided into
three categories: (1) sexual relations while on duty at a private location in
an on-going relationship; (2) sexual relations while on duty in a police
vehicle or RCMP facility; and (3) sexual relations while on duty resulting from
a contemporaneous professional interaction with a citizen – the situation at
hand.
[31]
The Commissioner reviewed the facts of these
cases and their imposed sanctions. In the cases allotted to the first and
second categories, the Board accepted the joint submission, and the sanctions
resulted in forfeiture of pay.
[32]
For the two cases cited under the third
category, the AOR had sought dismissal, and the Board in both cases found the
mitigating factors insufficient to alleviate the seriousness of the conduct,
and directed the member to resign or be dismissed (The Appropriate Officer
Division and Constable "A" (1994), 16 AD (2d) 184; The
Appropriate Officer Division and Constable "A" (1993), 11 AD (2d)
83).
[33]
While each case must be assessed on its facts,
the Commissioner noted that circumstances involving sexual relations while on
duty resulting from a contemporaneous professional interaction with a citizen
have been consistently treated as the most serious, as “there
is a steadfast public expectation that whatever the situation […] responding
police officers will not abandon their sworn professional duty and
responsibilities for impulsive gratification”.
[34]
The Decision provides that the principles
applied by Canadian appellate courts to determine when trial judges may
properly reject joint proposals on sentence are readily applicable to joint
submissions on sanction in police disciplinary matters. As summarized in the
ERC Report, the proper test for justifying a departure from a joint submission
on sanction is whether:
- the proposed
sanction brings the administration of justice into disrepute;
- the proposed
sanction is otherwise contrary to the public interest;
- the proposed
sanction is unfit or unreasonable; and
- there is a good
reason for rejecting the joint recommendation; the reason is stated in a
clear and cogent manner; the reason is more than an opinion that the
proposed sanction is insufficient; and the reason is preceded by a
thorough inquiry as to the circumstances underlying the joint submission.
[35]
The Commissioner acknowledged this is not a
situation where the Applicant agreed to make an admission in exchange for a
lenient joint submission. However, the Commissioner’s role involves the
balancing of the interests of the RCMP member subject to discipline with those
of the Force and the Canadian public, by ensuring that those members who have engaged
in disgraceful conduct are sanctioned in a manner that maintains public
confidence in the RCMP (Kinsey v Canada (Attorney General), 2007 FC 543
at para 44 [Kinsey]). Moreover, contributing to safer and healthier
Aboriginal communities is a long-standing RCMP strategic priority.
[36]
The Commissioner found that the Applicant was
expected to perform his duties with the utmost professionalism. The evidence
showed the Applicant was regarded as an exceptional performer with great
potential, and had the support of the Commanding Officer. Ultimately however, the
Commissioner found that’s the mitigating factors did not sufficiently alleviate
the gravity of the Applicant’s admitted actions, which however out of
character, displayed extremely poor judgment and completely undermine the
values, priorities and mission of the RCMP.
[37]
Under the circumstances, and considering the
precedents involving sexual relations resulting from contemporaneous
professional interactions, the Commissioner found the joint submission on sanction
entirely unfit and contrary to the public interest. Accordingly, he ordered the
Applicant to resign, and in default of resigning within 14 days of being served
a copy of the Decision, to be dismissed.
III.
Issues
[38]
The issues are:
- Whether the acknowledged breaches of procedural fairness and
right to a fair hearing leading to the Board’s initial decision were remedied
by the Commissioner’s subsequent Decision;
- Whether the
Commissioner’s Decision on the merits and on sanction was reasonable.
IV.
Standard of Review
[39]
The first issue of procedural fairness is to be
reviewed on the standard of correctness (Schmidt v Canada (Attorney General),
2011 FC 356 at para 14 [Schmidt]).
[40]
The Respondent argues that some deference is
nevertheless warranted, based on Justice Stratas’ statements that the Court is
to review procedural fairness issues with a “degree of
deference” respectful of the decision-maker’s choices (Bergeron v
Canada (Attorney General), 2015 FCA 160 at para 69, citing Re Sound v
Fitness Industry Council of Canada, 2014 FCA 48 at para 42). These cases
are however distinguishable, as the issue before the Court presently involves
review of a potential breach of procedural fairness and the right to a fair
hearing – not an assessment of the procedural choices made by an administrative
body. I find that no deference should be afforded on issues involving breaches
of procedural fairness that include the right to a fair hearing (Canadian
Tire Corp v Koolatron Corp, 2016 FCA 2 at para 14).
[41]
Considering my finding on the first issue with
respect to a breach of procedural fairness, it is unnecessary to consider the
standard of review applied to the Commissioner’s Decision on the merits and on
sanction.
V.
Analysis
A.
Whether the acknowledged breaches of procedural
fairness and right to a fair hearing leading to the Board’s initial decision
were remedied by the Commissioner’s subsequent Decision
[42]
The Applicant argues that the Commissioner’s Decision
was procedurally unfair, given his failure to direct a new hearing,
notwithstanding his recognition that the Applicant’s right to a fair hearing
and procedural fairness had been seriously breached.
[43]
The Applicant submits that a breach of
procedural fairness renders a decision invalid in all but the most exceptional
circumstances (Kinsey, above; Cardinal v Kent Institution, [1985]
2 SCR 643 at para24 [Cardinal]). The Supreme Court has recognized a
limited exception to the requirement for a new hearing stemming from a breach
of procedural fairness – where the result would be legally inevitable (Mobil
Oil, above, at paras 52-55). The Applicant states that the Commissioner’s
expectation the outcome would be the same is not sufficient.
[44]
The Respondent’s position is that it was
reasonable for the Commissioner in this case to decide the matter rather than
returning it to the Board for a new decision.
[45]
The Respondent submits that the Applicant’s
reliance on Cardinal, above, for the proposition that absent exceptional
circumstances, the initial decision is void, is incorrect. Appellate tribunals
can cure breaches of procedural fairness by an underlying tribunal in the
appropriate circumstances (Taiga Works Wilderness Equipment Ltd, Re,
2010 BCCA 97 at para 28 [Taiga Works]; Schmidt, above, at para
16; McBride v Canada (Minister of National Defence), 2012 FCA 181 at
para 41 [McBride]). The test is whether, given the circumstances as a
whole, the proceeding overall – including the initial proceedings and appellate
review – was fair.
[46]
Upon review of the pertinent case law, I agree
with the Respondent that in certain circumstances, administrative appellate
tribunals have been found to have the power to cure procedural lapses or
unfairness arising in a subordinate adjudication (Schmidt, at para 16; Taiga
Works, above, at para 17). In Taiga Works, the British Columbia
Court of Appeal thoroughly canvassed the relevant jurisprudence regarding an
appellate tribunal’s power to cure breaches of procedural fairness. At
paragraphs 36 to 38, the Court wrote:
36 The fact that the Supreme Court of
Canada mentioned both Harelkin and Cardinal with approval means
that Cardinal cannot be taken to have overruled the proposition
established by Harelkin (and King) that a breach of the rules
of natural justice or procedural fairness can be cured by an appellate tribunal
in appropriate circumstances.
37 I think it is fair to say that Cardinal
stands for the proposition that a breach of the rules of natural justice or
procedural fairness cannot be overlooked on the basis that the reviewing court
or appellate tribunal is of the view the result would have been the same had no
breach occurred. As demonstrated by the post-Cardinal authorities to
which I have referred, Harelkin and King continue to stand for
the proposition that appellate tribunals can, in appropriate circumstances,
cure breaches of natural justice or procedural fairness by an underlying
tribunal. The question then becomes how one should determine whether such
breaches have been properly cured.
38 As did Huddart J.A. in International
Union of Operating Engineers and Berger J.A. in Stewart, I prefer
the approach advocated by de Smith, Woolf and Jowell in Judicial Review of
Administrative Action. One should review the proceedings before the
initial tribunal and the appellate tribunal, and determine whether the
procedure as a whole satisfies the requirements of fairness. One should
consider all of the circumstances, including the factors listed by de Smith,
Woolf and Jowell.
[Emphasis added]
[47]
The factors a court should consider in deciding
whether the curative capacity of the appeal has ensured that the proceedings as
a whole have reached an acceptable level of fairness are:
- the gravity of
the error committed at first instance;
- the likelihood
that the prejudicial effects of the error may also have permeated the
rehearing;
- the seriousness
of the consequences for the individual;
- the width of the
powers of the appellate body; and
- whether the
appellate decision is reached only on the basis of the material before the
original tribunal or by way of rehearing de novo.
Taiga Works,
at para 28, citing de Smith, Woolf & Jowell, Judicial Review of
Administrative Action, 5th ed (London: Sweet & Maxwell, 1995) at 489-90;
Schmidt, at para 16.
[48]
The Respondent argues that an analysis of these
factors suggests the overall process was fair. The Commissioner considered
whether the hearing before the Board impacted his ability to make a decision,
and found it did not. He referred specifically to the errors the Board made,
and set clear parameters on the uncontentious facts he took into account, ignoring
objectionable evidence.
[49]
The Respondent claims the Board did not commit a
serious error in initially admitting the evidence related to the issue of
consent, as that evidence also provided the context and circumstances of the
Code of Conduct violation. Though the Board’s consideration of the evidence
respecting Allegation 2 was more egregious, the Respondent argues such evidence
was disregarded. The Commissioner was careful to limit his consideration to
evidence that fell within the scope of Allegation 1, properly defined, and thus
the prejudicial effects of the error are unlikely to have permeated the
rehearing.
[50]
As well, the Respondent emphasizes that the
Commissioner carries the responsibility for maintaining the standards of
integrity of the RCMP, and has broad statutory power under subsection
45.16(2)(c) of the Act to make the findings the Board should have made and to
reject or accept the sanction the Board imposed. Though the Commissioner’s
Decision is not de novo, the Respondent submits the Decision was based
on uncontentious evidence before the Board that was contained in the
particulars, and the Commissioner gave no weight to the initial decision.
[51]
After a consideration of the above enumerated
factors, I disagree with the Respondent that the proceedings as a whole have
reached an acceptable level of fairness. While the Commissioner was attuned to
the procedural breaches, having considered and cited the ERC Report and
tailored his decision accordingly, given the nature of the breaches and their
permeation through the record upon which the Decision was based, I find that
the appeal did not cure the breaches that occurred in the initial decision.
[52]
With regards to the first factor, there is no
doubt that the Applicant was denied procedural fairness at the Adjudication
Hearing. As the ERC noted, and Commissioner agreed, “the
[Applicant’s] right to procedural fairness has been seriously breached
and his right to a fair hearing prejudiced” [emphasis added]. There was
not only one, but several, procedural errors during the hearing process. These
breaches spanned from the improper drafting of the allegations (which delimit
the scope of the entire hearing), to the extensive reliance upon immaterial,
irrelevant and thus inadmissible evidence that was prejudicial to the
Applicant, throughout the Board’s Decision. The ERC found following a thorough
review, and upon consideration of the applicable legal principles, that the
errors were grave.
[53]
Regarding the second factor, I find that the
nature of the procedural lapses at the adjudication hearing suggests there is a
greater likelihood that their prejudicial effect permeated the appeal.
[54]
The ERC Report found that “the only evidence available to the Commissioner in
determining sanction would be the limited admission of the [Applicant], the
evidence of the witnesses called by the MR in the sanction phase of the hearing
and the documentary evidence filed in support of the [Applicant] by the MR”.
Though the Commissioner is not bound by the findings of the ERC, where he
departs from them, he is required to give reasons (subsection 45.16(6) of the
Act (repealed)).
[55]
The Commissioner found it was “abundantly clear” that the Board relied on
inadmissible evidence, and did not compartmentalize the evidence presented.
Yet, in his decision on sanction, the Commissioner was “not
convinced [he] should ignore even the most relevant portions of the testimony
of the Complainant and her friend” – thereby departing from the ERC’s
findings. Difference of opinion, without more, does not justify the
Commissioner’s consideration of testimony elicited for the issue of consent,
and thus which fell outside the ambit of Allegation 1 and was not properly
before the decision-makers. As the Court of Appeal found in Gill, above,
the ultimate decision in RCMP disciplinary proceedings cannot be based on
findings that exceed the boundaries of the allegation.
[56]
Though the Respondent submits this evidence was
uncontentious and was contained in the particulars, the Commissioner relied on
evidence in his decision on sanction that was not relevant to a material issue
and thus not properly before him to consider. This constitutes an error of law,
and a breach of procedural fairness (Sopinka et al, The Law of Evidence in
Canada, 4th ed, (Markham: LexisNexis, 2014) at 51). The proceedings before
the Board were tainted by a number of procedural failures and the Record
contains extensive inadmissible evidence. By picking and choosing which
evidence was most relevant, and relying upon that in rendering a decision on
sanction, the Commissioner acted in a procedurally unfair manner, which cannot
be condoned by this Court.
[57]
The very nature of the procedural breaches of
the Board, and their apparent pervasiveness throughout the record upon which
the Commissioner made his Decision are not easily remedied in the absence of a de
novo hearing, and suggest the prejudicial effects of the errors below also
permeated the appeal.
[58]
With regards to the third factor, it is not
disputed that the Commissioner’s Decision will have serious consequences for
the Applicant, both personally and professionally.
[59]
With respect to the fourth factor, despite the
Commissioner’s ability to disregard the Board’s determination and substitute
his own on appeal, subsection 45.16(2)(c) of the Act cannot be read so as to
override the Applicant’s basic entitlement to fundamental guarantees of
procedural fairness. This is particularly so where the decision is highly
adjudicative, and is of great importance to the affected individual (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras
23 to 27).
[60]
The fifth and final factor also suggests that
the curative measures taken did not make the proceedings as a whole fair.
[61]
A de novo appeal is one in which an
entirely fresh record is developed and no regard at all is had to a prior
decision (Canada (Minister of Citizenship & Immigration) v
Thanabalasingham, 2004 FCA 4 at para 6).
[62]
Notwithstanding the Commissioner’s ability to
give no deference to the Board’s Decision, his Decision was not de novo.
On appeal, the Commissioner must consider the record of the hearing before the
Board, the statement of appeal and any written submissions (subsection
45.16(1)). The Commissioner must also consider the ERC Report, though he is not
bound by their findings and recommendations.
[63]
The record contained extensive inadmissible
evidence, without which there was a limited factual foundation to determine the
matter. This is not a situation where the Applicant benefitted from a de
novo appeal which could have cured the errors below.
[64]
I also note that the cases upon which the
Respondent relies to argue that the proceedings as a whole were fair, despite
procedural defects below, apply in the situation of a de novo review (Alghaithy
v University of Ottawa, 2012 ONSC 142 at paras 38, 40, 44; McBride,
above, at para 43; Schmidt, at paras 19, 20; Khan v University of
Ottawa, [1997] OJ No 2650 (ONCA) at paras 40-45). Generally, in cases where
the appeal was not de novo, courts have found the appellate review did
not cure procedural unfairness at the initial level (Taiga Works; also
see Beauregard v Canada (Attorney General), 2015 FC 1383 at para 55).
[65]
In the present circumstances, I find that the
proceeding overall was procedurally unfair. The breaches of procedural fairness
at the initial hearing were not de minimis and it cannot be said with
certainty that those breaches did not impact the outcome of this case. I do not
find the outcome is inevitable and “the demerits of bad
cases should not ordinarily lead courts to ignore breaches of natural justice
or fairness” (Mobil Oil, at para 53).
[66]
Accordingly, the Commissioner’s Decision to
determine the appeal, despite the breaches of procedural fairness, was in
error. Notwithstanding the significant passage of time in this matter, the basic
principles of procedural fairness should be adhered to, particularly where the
outcome of a decision has such a dramatic impact on the life and career of the Applicant.
[67]
A newly constituted Board will have to come to a
fresh determination after a fair hearing, and then the issue of sanction can be
appropriately determined.
[68]
Given my above finding on procedural fairness,
there is no need to assess the reasonableness of the Commissioner’s Decision.
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