Docket: T-1053-16
Citation:
2016 FC 1031
Ottawa, Ontario, September 9, 2016
PRESENT: The Honourable Madam Justice Mactavish
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BETWEEN:
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BALRAJ SHOAN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
The Governor in Council terminated Balraj
Shoan’s appointment as a Commissioner of the Canadian Radio-television and
Telecommunications Commission for cause. Mr. Shoan has brought an
application for judicial review challenging the decision to terminate his
appointment. He has also brought a motion seeking to stay the Governor in
Council’s decision, and to reinstate him in his position as a Commissioner of
the CRTC pending the determination of his application for judicial review.
[2]
For the reasons that follow, I have concluded that
although Mr. Shoan has established that his application for judicial
review raises a serious issue, he has failed to demonstrate with clear and
non-speculative evidence that he will suffer irreparable harm between now and
the time that his application for judicial review is finally disposed of if the
stay is not granted. I am further satisfied that the balance of convenience
favours the respondent. Consequently, Mr. Shoan’s motion
will be dismissed.
I.
Background
[3]
The following brief summary of the facts should
serve to put Mr. Shoan’s motion into context.
[4]
The Governor in Council appointed Mr. Shoan
to serve as a full-time Commissioner of the CRTC for a term of five years,
effective July 3, 2013. Mr. Shoan held office “on
good behaviour”, with the result that he could only be removed from his
position for cause. This is reflected in subsection 3(2) of the Canadian
Radio-television and Telecommunications Commission Act, R.S.C., 1985, c.
C-22, which provides that a member of the Commission may be removed “at any time by the Governor in Council for cause”.
[5]
Concerns subsequently developed with respect to Mr. Shoan’s
conduct, and the Minister of Canadian Heritage wrote to him on February 26,
2016, advising him of the Minister’s concerns regarding his capacity to serve
as a Commissioner of the CRTC.
[6]
The Minister’s concerns fell into five
categories. The first related to Mr. Shoan’s public disparagement of the
CRTC and its Chairperson, and his allegedly unfounded accusations of unethical
conduct or conflicts of interest on the part of the CRTC Chairperson and CRTC
staff.
[7]
The second category of concerns related to Mr. Shoan
having allegedly disclosed confidential information, including information that
was subject to solicitor-client privilege, in proceedings that Mr. Shoan
had commenced in this Court and in the Federal Court of Appeal.
[8]
The third category of concerns arose as a result
of Mr. Shoan’s allegedly inappropriate ex parte meetings with
stakeholders involved in proceedings pending before the CRTC.
[9]
The Minister was also concerned about the effect
that Mr. Shoan’s actions were having on the internal operations of the
CRTC. By way of example, the Minister noted that Mr. Shoan had made
allegedly unfounded accusations of unethical conduct or conflicts of interest
on the part of the CRTC Chairperson and CRTC staff as a basis for not
respecting internal processes designed to permit the CRTC to comply with its
obligations under the Access to Information Act, R.S.C., 1985, c. A-1.
[10]
Finally, the Minister noted that an independent
third-party investigation into a complaint received from a CRTC staff member
alleging that she had been harassed by Mr. Shoan had determined that the
allegations of harassment were well-founded, and corrective measures were
imposed on Mr. Shoan.
[11]
The Minister concluded that, when taken
together, these events called into question Mr. Shoan’s capacity to
continue to serve as a Commissioner of the CRTC. Mr. Shoan was invited to
provide whatever submissions that he wished to have taken into account before a
decision was made with respect to his future. Through his counsel, Mr. Shoan
provided a detailed response to the allegations set out in the Minister’s
letter.
[12]
Mr. Shoan also sought judicial review of
the findings of the harassment investigation, and his application was heard by
Justice Zinn on June 21, 2016. Justice Zinn took his decision under reserve
following the hearing.
[13]
Mr. Shoan’s response to the Minister’s
concerns was evidently determined to be unsatisfactory. After concluding that
his actions were fundamentally incompatible with his position, and that he no
longer enjoyed the confidence of the Governor in Council to be a Commissioner
of the CRTC, on June 23, 2016, the Governor in Council terminated Mr. Shoan’s
appointment for cause, effective the following day. It is Mr. Shoan’s
application for judicial review of that decision that underlies this motion.
[14]
Shortly before the motion to stay the
termination of Mr. Shoan’s appointment was to be heard, Justice Zinn
rendered his decision with respect to the judicial review of the findings of
the harassment investigation. In a decision that was very critical of the
process followed by the investigator, Justice Zinn found that Mr. Shoan
had been denied procedural fairness in the investigation process, as the
investigator had approached the investigation with a closed mind.
[15]
Consequently, Mr. Shoan’s application for
judicial review was granted, and both the investigation report and the
corrective measures imposed on Mr. Shoan by the CRTC Chairperson were set
aside.
[16]
Mr. Shoan’s motion for a stay then
proceeded before me on September 6, 2016.
II.
Should a Stay be Granted in this Case?
[17]
Mr. Shoan’s motion seeks a stay of the
Governor in Council’s decision to terminate his appointment, and asks that he
be reinstated in his position as a CRTC Commissioner pending the determination
of his application for judicial review.
[18]
The parties agree that in determining whether Mr. Shoan
is entitled to the interlocutory injunctive relief that he seeks, the test to
be applied is that established by the Supreme Court of Canada in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17.
[19]
That is, Mr. Shoan must establish that:
1)
There is a serious issue to be tried in the
underlying application for judicial review;
2)
Irreparable harm will result if the injunction
is not granted; and
3)
The balance of convenience favours the granting
of the injunction.
[20]
Given that the RJR-MacDonald test is
conjunctive, Mr. Shoan has to satisfy all three elements of the test
before he will be entitled to relief: Abbvie Corp. v. Janssen Inc., 2014
FCA 112 at para. 14, [2014] F.C.J. No. 471.
III.
Serious Issue
[21]
In most cases, for an applicant to establish the
existence of a serious issue in a proceeding, the applicant need only show that
the application is neither frivolous nor vexatious, and a prolonged examination
of the merits is generally neither necessary nor desirable: RJR-MacDonald,
above at para. 50. Mr. Shoan says that this is the standard that should be
applied here.
[22]
In contrast, the respondent submits that a more
extensive review of the merits of Mr. Shoan’s case is required here, given
the nature of the relief sought. Amongst other things, the respondent submits
that if the Court were to stay the decision of the Governor in Council, it
would have the practical effect of granting Mr. Shoan the relief that he
is seeking in his application for judicial review – namely reinstatement to his
position as a Commissioner of the CRTC.
[23]
I agree with the respondent that the nature of
the mandatory relief being sought by Mr. Shoan in this case is such that
the elevated standard should apply for the establishment of a serious issue: Gould
v. Canada (Attorney General), [1984] 1 F.C. 1133, [1984] F.C.J. No. 82
(FCA), (aff’d [1984] 2 S.C.R. 124); Wang v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 148, [2001] 3 F.C. 682.
[24]
That said, I am satisfied that Mr. Shoan
has nevertheless satisfied the serious issue component of the RJR-MacDonald
test.
[25]
It is apparent from the February 26, 2016 letter
to Mr. Shoan from the Minister of Canadian Heritage that the Minister had
a number of different concerns with respect to Mr. Shoan’s conduct,
several of which were completely unrelated to the allegations of harassment
that had been made against him. An example of this would be Mr. Shoan’s
allegedly inappropriate meetings with CRTC stakeholders.
[26]
It is, however, clear from a review of the
Minister’s letter that the findings of the harassment investigation were a
major concern for the Minister, and that they played a material role in the
decision to terminate Mr. Shoan’s appointment. Indeed, it is acknowledged
in the respondent’s memorandum of fact and law that concerns identified in the
Minister’s February 26, 2016 letter “built upon earlier
concerns about Shoan’s actions that were found to have constituted harassment
towards a CRTC employee”.
[27]
The report of the harassment investigation has
now been set aside as a result of Justice Zinn’s determination that Mr. Shoan
was denied procedural fairness and natural justice in the investigation process
as the investigator approached her task with a closed mind, and the outcome of
the investigation had been pre-determined: Shoan v. Canada (Attorney
General), 2016 FC 1003 at para. 54.
[28]
Justice Zinn further found that the investigator
had exceeded her mandate in a manner that was unfair to Mr. Shoan: see,
for example, Shoan, above at paras. 70, 82, 85 and 92. He also
determined that the investigator failed to critically and impartially analyze
some, if not most of the email chains that were the subject of the harassment
complaint: Shoan, above at para. 98. Justice Zinn further found that the
investigator’s interpretation of the language used by Mr. Shoan in the
emails was unreasonable: Shoan, above at paras. 109 and 130. Also of
concern to Justice Zinn was the fact that the CRTC Chairperson acted as both a
witness to events complained of, and as the final decision-maker: at para. 79.
[29]
These findings raise a serious issue as to whether
it was appropriate to rely on the findings of the investigation report as a
basis for concluding that Mr. Shoan’s actions were fundamentally
incompatible with his position as Commissioner, and for terminating his
appointment for cause.
[30]
Justice Zinn’s finding that there was no need
for a confidentiality order protecting the identity of the complainant in the
harassment case also raises a serious issue with respect to the Minister’s
allegation that by filing documents with this Court in relation to his
application for judicial review of the investigation report, Mr. Shoan “unnecessarily and unacceptably included personal information
about an individual who had brought forward a harassment complaint against
[him]”: see the Minister’s February 26, 2016 letter to Mr. Shoan,
and Shoan, above at paras. 148-149.
[31]
To be clear: it is not for me at this stage of
the proceeding to offer an opinion as to whether Mr. Shoan’s arguments
regarding the significance of Justice Zinn’s decision will ultimately succeed.
Suffice it to say that I am satisfied that Justice Zinn’s findings raise a
serious issue as to whether it was appropriate to rely on the findings of the
investigation report as a basis for terminating Mr. Shoan’s appointment.
IV.
Irreparable Harm
[32]
Having satisfied the serious issue component of
the RJR-MacDonald test, the next question is whether Mr. Shoan has
provided clear and non-speculative evidence that he will suffer irreparable
harm between now and the time that his application for judicial review is
finally disposed of, unless he is reinstated into his position as a CRTC
Commissioner.
[33]
“Irreparable harm” refers to the nature of the harm, rather than its magnitude. It is
harm that either cannot be quantified in monetary terms, or which cannot be
cured, typically because one party cannot collect damages from the other party:
RJR-MacDonald, above at para 59.
[34]
The Federal Court of Appeal has confirmed that a
party cannot satisfy the irreparable harm component of the test for a stay by
relying on mere assertions of harm. Choson Kallah Fund of Toronto v. Canada
(National Revenue), 2008 FCA 311, at paras. 5 and 8, [2008] F.C.J. No. 1576
(leave to appeal denied: [2008] S.C.C.A. No. 528 (S.C.C.)).
[35]
There must instead “be
evidence at a convincing level of particularity that demonstrates a real probability
that unavoidable irreparable harm will result unless a stay is granted”:
Gateway City Church v. Canada (National Revenue), 2013 FCA 126, at para.
16, [2013] F.C.J. No. 514, citing Glooscap Heritage Society v. Minister of
National Revenue, 2012 FCA 255 at para. 31, [2012] F.C.J. No. 1661.
[36]
That said, the Court may draw inferences that
logically flow from evidence when there can be no evidence of irreparable harm
that has already occurred: Ciba-Geigy Canada Ltd. v. Novopharm Ltd., [1994]
F.C.J. No. 1120 at para. 119, [1984] 83 F.T.R. 161.
[37]
Mr. Shoan submits that he will suffer
irreparable harm in this case as his termination for cause will send the
message to the public that his actions as a CRTC Commissioner lacked
independence, were dubious and cannot be trusted. This will have a damaging
effect on his reputation on a “going-forward”
basis, especially in light of the significant national media coverage of his
termination. This will render it unlikely that he will be able to secure
employment in his field of expertise in the future, given the nature and
implications of his termination.
[38]
According to Mr. Shoan, the longer that he
is removed from his position, the greater the risk is to his legitimacy as a
decision-maker with the CRTC. This will have a negative impact on him as a
decision-maker, and will impair his ability to engage with stakeholders. It
will, moreover, cause harm to the CRTC as an institution. Mr. Shoan also
says that his termination will have a chilling effect on others, dissuading
them from bringing forward legitimate complaints in the future.
[39]
This last point concerning the alleged harm to
the CRTC and the “chilling effect” on others may
be quickly disposed of, as it is only harm suffered by the moving party that
qualifies as “irreparable harm” under this
branch of the RJR-MacDonald test: RJR-MacDonald, above at
para. 58.
[40]
Insofar as Mr. Shoan’s assertions of
reputational harm are concerned, I agree with the respondent that, to a large
extent, the damage has already been done. As Mr. Shoan himself
acknowledges in his affidavit, there has been significant media coverage of his
disagreements with the way that the CRTC is being run, and of the termination
of his appointment for cause by the Governor in Council.
[41]
Ordering that Mr. Shoan be reinstated to
his position at the CRTC pending the hearing of his application for judicial
review of his termination would do nothing to restore the Governor in Council’s
trust in him. The harm to Mr. Shoan’s reputation resulting from the
Governor in Council’s loss of confidence in his ability to discharge his
responsibilities as a Commissioner of the CRTC would, moreover, not be undone
if he is reinstated to his position pending the hearing of his application for
judicial review.
[42]
I am also not persuaded that any harm that Mr. Shoan
may have sustained to his reputation is “irreparable”
as that term is used in the jurisprudence. Should Mr. Shoan’s application
for judicial review ultimately succeed, it would be open to him to commence an
action for damages, both in relation to his lost income, and with respect to
the harm that he says that he has sustained to his reputation and career
prospects: Weatherill v. Canada (Attorney General), [1998] F.C.J. No.
58 at para. 30, 143 F.T.R. 302.
[43]
Having failed to satisfy the “irreparable harm” component of the RJR-MacDonald
test, it follows that Mr. Shoan’s motion for a stay will be dismissed. In
the interests of completeness, however, I will also deal briefly with the issue
of the balance of convenience.
V.
Balance of Convenience
[44]
At the third stage of the RJR-MacDonald
test, an assessment must be made as to which of the parties will suffer greater
harm from the granting or refusal of the remedy, pending a decision on the
merits.
[45]
The Supreme Court has held that it is open to
either party to tip the scales of convenience in its favour by demonstrating to
the Court a compelling public interest in granting or refusing the relief
sought: RJR-MacDonald, above at paras. 62 and 66.
[46]
Although he has not brought a motion to expedite
the hearing of his application for judicial review, Mr. Shoan submits that
it is reasonable to expect his application to move forward quickly. He argues
that the balance of convenience overwhelmingly favours granting an injunction
to maintain the status quo as it existed prior to the termination of his
appointment. This is especially so, Mr. Shoan says, given that no
concerns have ever been raised by the Minister with respect to his ability to
do his job.
[47]
I accept that the termination of his appointment
and the associated loss of income have undoubtedly caused harm to Mr. Shoan,
although, as noted earlier, I have not found that harm to be irreparable in
nature.
[48]
I do not, however, accept Mr. Shoan’s
assertion that the Minister has never raised any concerns with respect to his ability
to do his job. For example, the Minister has alleged that Mr. Shoan held
an inappropriate ex parte meeting with stakeholders involved in a
proceeding that was pending before the CRTC, which led a party to the
proceeding to raise concerns as to a potential apprehension of bias on the part
of Mr. Shoan. The same party also requested his recusal from the
proceeding. This directly calls Mr. Shoan’s judgment into question, and
with it, his ability to do his job.
[49]
There is, moreover, a strong public interest in
preserving integrity of, and public confidence in the CRTC. This would be
undermined if Mr. Shoan were reinstated to his position as a CRTC
Commissioner prior to the determination of his application for judicial review
challenging the termination of his appointment for cause.
[50]
There is also a public interest in enforcing an
Order in Council, which enjoys a presumption of validity. If a stay were
granted to Mr. Shoan, the Governor in Council would be prevented from
exercising its statutory and prerogative powers: Weatherill, above at
para. 31.
[51]
Finally, there is a strong public interest in
ensuring the effective functioning and well-being of the CRTC. Without making
any finding as to who is at fault, it is clear that the relationship between Mr. Shoan
and the CRTC Chairperson and certain other staff members has become very
difficult. Reinstating Mr. Shoan to his position on an interim basis would
undoubtedly have a negative impact on the collegiality required for the
effective operation of the CRTC.
[52]
As a consequence, I have concluded that the
balance of convenience favours giving effect to the Order in Council revoking Mr. Shoan’s
appointment to the CRTC until such time as his application for judicial review
challenging that decision can be heard.
VI.
Conclusion
[53]
For the reasons given, Mr. Shoan’s motion
to stay the Order in Council terminating his appointment to the CRTC is
dismissed. The costs of this motion shall be in the cause.
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