Date: 20070111
Docket: A-620-05
Citation: 2007 FCA 6
CORAM: DÉCARY
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
JEAN PELLETIER
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
On July 31, 2001, in
the exercise of its power to appoint its candidates directly to high office,
the government of the day appointed Jean Pelletier to the office of Chairman of
the Board of Directors of VIA Rail Canada Inc., to serve at pleasure , (“à
titre amovible”). On March 1, 2004, the government of the day, differently
constituted, in the exercise of its right to remove him from office, terminated
Mr. Pelletier’s appointment.
[2]
Mr. Pelletier
challenged the government’s termination of his appointment in Federal Court,
where he met with success. The Attorney General conceded before Mr. Justice
Simon Noël, the application judge, that Mr. Pelletier was owed duty of
procedural fairness but contended that this duty was minimal and that it had
been satisfied. In a decision reported at 2005 FC 1545, the application judge
found that Mr. Pelletier was owed a more robust duty of procedural fairness
than proposed by the Attorney General, and that this duty had not been
satisfied. The
Attorney General now appeals from that decision.
[3]
The issue in the
appeal is therefore very circumscribed. It is not whether Mr. Pelletier was
owed a duty of fairness at all, since that point was conceded. It is the
content of that duty and whether, on the facts, the duty was satisfied. For
the reasons which follow, I would dismiss the appeal.
THE FACTS
[4]
Mr. Pelletier is the
former Chief of Staff to former Prime Minister Chrétien. After his departure
from political life, he was appointed, by Order in Council No. PC 2001-1294, to
the office of Chairman of the Board of Directors of VIA Rail. The appointment
was at pleasure, for a term of five years commencing September 1, 2001. At that
time, Ms. Myriam Bédard, once best known as an Olympic athlete, was an employee
of VIA Rail, and had been so since January 2001. On February 13, 2004, she
wrote to Prime Minister Martin, claiming to be a victim of the sponsorship
scandal. In her letter, Ms. Bédard said that she had been forced to resign from
VIA Rail in January 2002 after she submitted to management, at the request of
Mr. Pelletier, a a proposal which she had developed by which she claimed she
could increase VIA Rail’s publicity by 35% while reducing its marketing budget
from $12 million to $7 million. This is how she described her experience:
In a set up, they asked me to open my own
business to run the project, then they sent me to Groupaction as a trainee and
from there, on January 11, 2002, the heads of VIA Rail Canada forced me to hand
in my resignation.
(Appeal Book. Vol. 1 p. 81 Translation contained
in the Report of the Independent Inquiry Officer – Michel G. Picher.)
[5]
Long after the events
which gave rise to the termination of Mr. Pelletier’s appointment,
Mr. Michel G. Picher, an independent Inquiry Officer, investigated Ms.
Bédard’s allegations. On
April 8, 2004, he concluded as follows:
The case at hand represents a tragedy of
enormous proportions. Mr. Pelletier was a respected public figure, who was
accused by Ms. Bédard in February of 2004 of being an instrument in her alleged
forced resignation two years earlier, in January of 2002. This report must
conclude that Mr. Pelletier had no involvement in Ms. Bédard’s departure from VIA
Rail.
(Appeal Book Vol. 2 p.
200.)
[6]
On February 26, 2004,
the allegations which Ms. Bédard made in her letter to Prime Minister Martin came
to the attention of François Cardinal, a reporter for the Montreal daily newspaper, La Presse. He interviewed Ms.
Bédard, who repeated her allegations and added others. Mr. Cardinal then
requested an interview with Mr. Pelletier, who agreed to meet with him.
[7]
In the course
of the interview, as reported in Mr. Cardinal’s article which appeared the
following day, February 27, 2004, Mr. Pelletier said that Ms. Bédard was lying
shamelessly and that she was attempting to take advantage of the sponsorship
scandal for her personal advantage. He was quoted as saying [Translation] "I do not want to be mean. This is a poor girl who deserves
pity, who doesn't have a spouse, as far as I know. She is struggling as a
single mother with economic responsibilities. I pity her, in the end." See
the application judge’s reasons at para.13. The transcript of the Mr.
Pelletier’s interview was filed with the Court. (A.B. Vol. II
p. 302.)
[8]
The government’s
reaction was not long in coming. That same day, February 27, 2004, at 3:15
p.m., Mr. Alexander Himelfarb, the Clerk of the Privy Council, instructed
Mr. Yves Coté and Mr. Wayne McCutcheon to telephone Mr. Pelletier for his
comments about the Cardinal article. Mr. Coté is Counsel to the Clerk of
the Privy Council and Associate Secretary to the Cabinet, while Mr. McCutcheon
is a senior official in the Privy Council Office. They called Mr. Pelletier’s
office at approximately 3:45 p.m. Mr. Pelletier was not available to take their
call but his assistant assured them that he would return their call promptly.
[9]
At approximately 3:50
p.m., Mr. Pelletier called Mr. Coté and Mr. McCutcheon. Mr. Coté explained that
they had called to get his explanation or comments with respect to the Cardinal
article. Mr. Pelletier responded by making a number of points. He stated that
he was not involved in any of the incidents referred to by Ms. Bédard involving
VIA Rail. He indicated that the file was being reviewed and that senior VIA
Rail officials, the Vice President Marketing and the Chief Strategy Officer,
would respond to Ms. Bédard’s allegations. According to Mr. Pelletier, a VIA
Rail press release would be issued on Monday, March 1.
[10]
As for the comments
attributed to him in the Cardinal article, Mr. Pelletier admitted that they
were inappropriate and that his personal press release to that effect would be
issued imminently.
[11]
Mr. Coté then asked
Mr. Pelletier if he had anything to add. Mr. Pelletier responded that his press
release would speak for itself and that he had nothing to add. On that note, the conversation
ended.
[12]
At approximately the
same time, VIA Rail issued a press release in which Mr. Pelletier publicly
apologized to Ms. Bédard. He acknowledged that his comments were inappropriate
and he expressed his sincere regrets.
[13]
Three
days later, on Monday, March 1, at approximately 8:50 a.m., Mr. Pelletier
received a telephone call from Mr. Tony Valeri, the Minister of Transport, and
therefore the Minister responsible for VIA Rail. Mr. Valeri informed Mr.
Pelletier that a decision would be taken later that day with respect to his
appointment. Mr. Pelletier asked about the nature of the decision to be taken and
the reasons for it, but Mr. Valeri would only say that he could say nothing
more about it. At approximately 11:50 a.m., Mr. Valeri called again, this time
to say that his appointment was to be terminated and that an Order in Council
to that effect was being prepared. Later that same day, one Mark
Reynolds from the Prime Minister’s office telephoned Mr. Pelletier twice. The
first time, around noon, he informed Mr. Pelletier that he had been suspended
until March 5 then, correcting himself, until March 15. He called back ten
minutes later to inform Mr. Pelletier that the situation had evolved and he was
no longer suspended, but terminated.
At 3:00 p.m., Mr. Pelletier received a fax copy of a letter from
Mr. Valeri to which was attached a copy of the Order in Council
terminating his appointment.
[14]
Later the same day,
the government issued a press release announcing Mr. Pelletier’s departure from
VIA Rail. The
press release is reproduced below:
GOVERNMENT
OF CANADA
TERMINATES APPOINTMENT OF VIA CHAIRMAN
OTTAWA - On behalf of the Government of Canada,
Transport Minister Tony Valeri today announced the termination of the
appointment of Jean Pelletier as Chairman of the Board of Directors
of VIA Rail Canada Inc.
The termination of the appointment of Mr.
Pelletier is effective immediately.
"The comments made last week by Mr.
Pelletier regarding Myriam Bédard were totally unacceptable," said Prime
Minister Paul Martin. "I asked people who had knowledge about possible
wrongdoings to come forward. And when they do, I expect them to be treated
fairly. This was clearly not the case. My government came to office with a
commitment to change the way things work. The actions we are taking today
reflect that commitment."
Transport Minister Valeri said: "Last week
I stated that the government would review the comments of the VIA Chairman and
would take appropriate action. It is completely inappropriate for the chairman
of a Crown corporation to make comments of this nature about someone
identifying wrongdoing in the workplace."
VIA Rail Canada Inc. is a federal Crown
corporation wholly owned by the Government of Canada.
[15]
I pause to note that this review
of the facts, which are uncontested, is taken from Mr. Pelletier’s
affidavit, filed by the respondent, and Mr. McCutcheon’s affidavit, filed by
the appellant. Neither deponent was cross-examined. Further, the Attorney
General did not think it useful to file affidavits sworn by Messrs Valeri,
Himelfarb, Coté and Reynolds, nor did he provide any explanation as to the
latter’s role in the Prime Minister’s office.
[16]
On March 1, 2004, Mr.
Pelletier filed his Notice of Application to set aside the Order in Council
terminating his appointment.
THE DECISION UNDER APPEAL
[17]
The application judge
found that the government was bound to afford Mr. Pelletier a measure of
procedural fairness. He found that the government was required to advise Mr.
Pelletier that his position was at risk and to inform him of the reasons for
its dissatisfaction with him. The application judge concluded that the government
did not meet this standard. Mr. Pelletier was unaware of his precarious
position and of the grounds for the government’s dissatisfaction until he read
the government’s March 1 press release. He was never given the opportunity to
respond to those grounds. As a result, the application judge set aside the
Order in Council terminating Mr. Pelletier’s appointment and remitted the
matter to the Governor in Council for reconsideration.
[18]
The application judge
noted the Attorney General’s concession that Mr. Pelletier was entitled to
procedural fairness. He then examined the jurisprudence in order to determine
the content of that duty of fairness. He relied particularly on the decision of
the Supreme Court in Knight v. Indian Head School Division No. 19,
[1990] 1 S.C.R. 653 from which he concluded that the duty of fairness in the
case of the dismissal of persons holding office at pleasure was minimal: the
employer must tell the employee the reasons underlying the termination, and
give the latter an opportunity to be heard.
[19]
The application judge
then considered whether, on the facts, this minimal duty of fairness had been
satisfied. He found that Mr. Pelletier was not specifically told that
disciplinary measures were pending until Mr. Valeri first called him on March
1, 2004. Then he took note of the Attorney General’s argument that no express
notice was required – it was sufficient that Mr. Pelletier knew or ought to
have known that his office was at risk. The application judge then reviewed
each of the authorities relied upon by the Attorney General and distinguished
them from the case before him.
[20]
The application judge
concluded that nothing in the evidence led to the conclusion that
Mr. Pelletier knew that his office was at risk. Counsel for the Attorney General
attempted to explain Mr. Coté’s failure to put Mr. Pelletier on notice by
noting that the Governor in Council was the ultimate decision-maker so that, at
the time of his telephone conversation with Mr. Pelletier, Mr. Coté did
not know what the Governor in Council would decide. This led the application
judge to ask how Mr. Pelletier could or should have known what the future held
for him, if Mr. Coté himself did not know.
[21]
As for the right to
be heard, the application judge found that Mr. Pelletier had not been provided
with the opportunity to be heard. The diffuse nature of his conversation with
Messrs Coté and McCutcheon as well as the absence of any comment to the effect
that disciplinary measures were pending did not suggest that further explanations
were required. The laconic nature of Mr. Valeri’s first intervention did
not provide any opportunity for any kind of exculpatory narrative since there
was no indication as to the nature of the decision under consideration nor of
the reasons underlying it. As for Mr. Valeri’s second intervention, it was to
announce that the decision had been taken so that the time for making
representations had passed.
[22]
In the end result,
the application judge concluded that while Mr. Pelletier was only entitled to
the minimum standard of procedural fairness, he was not afforded even that
meagre measure of fair play.
[23]
Each of the parties
raised, at the last minute, an argument which was not contained in their
Memorandum. The application judge declined to deal with either of these
arguments since, in each case, the opposite party was caught short by the new
argument.
[24]
Mr. Pelletier argued
that since the subsection 105(6) of the Financial Administration Act
R.S.C. 1985 c. F-11 required the Governor in Council to consult with the Board
of Directors of VIA Rail before appointing him to the office of Chairman of the
Board, it followed that the Board must also be consulted before he was removed.
Since this was not done, he said, his termination was unlawful and of no
effect. Having regard to the conclusion to which I have come on the issue of
procedural fairness, it is not necessary for me to deal with this argument.
[25]
The Attorney General,
on the other hand, argued that Mr. Pelletier could not be advised of the
reasons for which action was taken or to be taken against him because Mr.
Valeri was bound by cabinet confidentiality. He was therefore not in a position
to say more to Mr. Pelletier than he did. I will deal with this argument later
in these reasons.
ANALYSIS
The Attorney General’s Arguments
[26]
The Attorney
General’s attack on the application judge’s decision can be summarized as
follows.
[27]
The Attorney
General’s primary argument is that Mr. Pelletier is owed a lesser duty of
procedural fairness than that set out in Knight, the standard which was
accepted by the application judge. The Attorney General accepts that Knight
requires him to concede that Mr. Pelletier is owed a degree of procedural
fairness because the power to remove Mr. Pelletier from office is a statutory
power: see Knight, paragraph 32. That statutory power is found in the
combination of ss. 105(5) of the Financial Administration Act and ss.
24(1) of the Interpretation Act both of which are reproduced below.
|
Financial
Administration Act
104.1 In this Division, “officer-director”,
in respect of a parent Crown corporation, means the chairperson and the chief
executive officer of the corporation, by whatever name called.
105(5) Each officer-director
of a parent Crown corporation shall be appointed by the Governor in Council
to hold office during pleasure for such term as the Governor in Council
considers appropriate.
Interpretation
Act
24.
(1)
Words authorizing the appointment of a public officer to hold office during
pleasure include, in the discretion of the authority in whom the power of
appointment is vested, the power to
(a)
terminate the appointment or remove or suspend the public officer;
(b)
re-appoint or reinstate the public officer; and
(c)
appoint another person in the stead of, or to act in the stead of, the public
officer.
|
Loi sur la gestion des finances publiques
104.1 Dans la présente section,
« administrateurs-dirigeants » s'entend du président et du premier
dirigeant, indépendamment de leur titre, d'une société d'État mère.
105(5) Les administrateurs-dirigeants d’une société
d’État mère sont nommés à titre amovible par le gouverneur en conseil pour le
mandat que celui-ci estime indiqué.
Loi d’interprétation
24. (1) Le pouvoir de nomination d’un fonctionnaire
public à titre amovible comporte pour l’autorité qui en est investie les
autres pouvoirs suivants :
a) celui de
mettre fin à ses fonctions, de le révoquer ou de le suspendre;
b) celui de le nommer de nouveau ou de le
réintégrer dans ses fonctions;
c) celui de nommer un remplaçant ou une autre
personne chargée d’agir à sa place.
|
[28]
However, the Attorney
General seeks to draw a distinction between Mr. Pelletier’s position and that
of other persons holding appointments at pleasure. He says that the removal of
Mr. Pelletier from office is a political matter and, as such, is subject to a
different regime than those cases which resemble Knight. Having regard
to the political nature of the process by which Mr. Pelletier was appointed and
then removed, the Attorney General argues that the content of the duty of
fairness is much reduced.
[29]
Where the government
seeks to replace an appointee holding office at pleasure for purely partisan
political reasons, the Attorney General, while conceding that while some form
of procedural fairness is mandated by the statutory nature of the power being
exercised, argues that the content of that duty is even more limited than the
duty imposed in Knight. On the other hand, where the government seeks to
remove an office holder for misconduct, the Attorney General concedes that a
higher standard of procedural fairness applies. However, even in those cases,
the requirements of procedural fairness are tempered by constraints such as the
fact that the government (i.e. Cabinet) generally acts through senior civil servants
who may not know what the government proposes to do after it deliberates, and
who are bound by Cabinet confidentiality if they do know.
[30]
These considerations
lead the Attorney General to argue that Mr. Pelletier was owed a duty of
procedural fairness falling below that identified in Knight,
specifically, that there was no need for an express notice of the grounds for
the government’s dissatisfaction. In support of this position, the Attorney
General relied upon selected passages from the decision of the Supreme Court in
Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249
and a decision of the High Court of Australia, The State of South Australia
v. O’Shea (1987), 163 C.L.R. 378 (H.C.). It is sufficient, says the
Attorney General, that the person knows or ought to know, by virtue of all of
the surrounding circumstances, that their appointment is at risk.
[31]
The Attorney General
says the application judge made three mistakes in deciding the matter as he
did. The first is that he erred in his assessment of the evidence of the
telephone conversation between Messrs Coté and McCutcheon and Mr. Pelletier.
Given Mr. Pelletier’s sophisticated understanding of the inner workings of
government, and the circumstances surrounding the call itself, the application
judge ought to have found that Mr. Pelletier either knew, or ought to have
known, at the time of his conversation with Messrs Coté and McCutcheon that his
office was at risk. Had the application judge drawn the proper conclusion as to
Mr. Pelletier’s state of mind and, had he given effect to the fact that Mr.
Pelletier was asked if he had anything else to say, the application judge would
have concluded that Mr. Pelletier was aware of the reasons for the government’s
dissatisfaction with him and was given an opportunity to be heard.
[32]
The Attorney
General’s second argument is that the application judge erred when he held that
it was not appropriate for him to speculate as to Mr. Pelletier’s state of
mind. Given the nature of the argument made by the Attorney General, the
application judge was bound to decide whether Mr. Pelletier knew or ought
to have known that his position was at risk. By failing to do so, the
application judge essentially failed to exercise his jurisdiction.
[33]
The Attorney General’s
third argument bears on the standard of proof. He alleges that the application
judge reversed the onus of proof by requiring the Attorney General to show that
Mr. Pelletier did not know, or was not confused as to the precariousness
of his position in the period following the publication of the Cardinal
article. The Attorney General argues that it was for Mr. Pelletier to make
the case that he was confused or uncertain since he is better placed to comment
on his state of mind than is the Attorney General.
Analysis of the Attorney General’s Arguments
[34]
As a preliminary
matter, it is important to remember that the issue in this case is not whether
the government was entitled to put an end to Mr. Pelletier’s appointment. Mr.
Pelletier held his office at pleasure; the government was entitled to remove
him at any time for any reason. The duty of procedural fairness, whatever its
content, deals only with the process by which the government exercises its
right to terminate his appointment, and not with the substance of the decision
itself. The right to be given reasons and the right to be heard do not create,
by implication or otherwise, a right to be removed from office only for reasons
which meet some standard of rationality: see Knight at pages 674 -
675:
The justification for
granting to the holder of an office at pleasure the right to procedural
fairness is that, whether or not just cause is necessary to terminate the
employment, fairness dictates that the administrative body making the decision
be cognizant of all relevant circumstances surrounding the employment and its
termination (Nicholson, supra, at p. 328, per Laskin C.J.). One person
capable of providing the administrative body with important insights into the
situation is the office holder himself. As pointed out by Lord Reid in Malloch
v. Aberdeen Corp., supra, at p. 1282: "The right of a man to be heard
in his own defense is the most elementary protection of all ...." To grant
such a right to the holder of an office at pleasure would not import into the
termination decision the necessity to show just cause, but would only require
the administrative body to give the office holder reasons for the dismissal and
an opportunity to be heard. … The argument to the effect that, since the
employer can dismiss his employee for unreasonable or capricious reasons, the
giving of an opportunity to participate in the decision-making would be
meaningless, is unconvincing. In both the situation of an office held at
pleasure and an office from which one can be dismissed only for cause, one of
the purposes of the imposition on the administrative body of a duty to act
fairly is the same, i.e., enabling the employee to try to change the employer's
mind about the dismissal. The value of such an opportunity should not be dependant
on the grounds triggering the dismissal.
[35]
To the extent that
the Attorney General’s position is that a decision to revoke an appointment of
one who serves at pleasure for misconduct is subject to a higher standard of
procedural fairness than a purely political decision, the facts of this case
call for the higher standard since the revocation of Mr. Pelletier’s
appointment was clearly based upon an allegation of misconduct. The
government’s press release leaves no doubt on that score.
[36]
The question then
becomes the content of that higher standard of procedural fairness. The Supreme
Court’s decision in Knight established, and its subsequent decision in Baker
v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817 confirmed, that the duty of fairness is variable according to the
circumstances.
[37]
The Attorney General
argues that, given the political nature of Mr. Pelletier’s appointment the duty
of fairness was satisfied if, as the Attorney General alleges, he knew or ought
to have known that his office was at risk and why.
[38]
With respect, the
argument is one of form over substance in that the purpose of express notice is
to ensure that those at risk are aware of the jeopardy they face and the
reasons for that jeopardy. Nothing in Knight would support the
conclusion that a person who was fully aware of the risk of removal and of the
grounds of disapproval could nonetheless establish a violation of procedural
fairness from the mere fact that formal express notice had not been given.
[39]
It is one thing to
say that the duty of fairness to a person in the position in the position of
Mr. Pelletier is satisfied when that person knows, even in the absence of
express notice, on the basis of the surrounding circumstances, that his or her
office is at risk and the reasons for which it is. It is quite another thing to
say that the duty of procedural fairness to that person is satisfied when,
absent express notice, they ought to know, on the basis of the surrounding
circumstances, that his or her appointment is at risk and the reasons why. The
difference lies in the fact that the person with actual knowledge is in a
position to make appropriate representations to the decision-maker. The person
who has only constructive knowledge, i.e. the person who ought to know, is not
in a position to be heard because that person has no present knowledge that he
or she is at risk or why, even if, objectively, they ought to know. One can
hardly impose on a person, in the name of procedural fairness, the obligation
to anticipate trouble and to mount a defence
before being attacked Procedural fairness requires actual knowledge of the
pending threat and of the reasons for it; constructive knowledge will not do.
Consequently, the issue in this case is whether Mr. Pelletier actually knew,
notwithstanding the absence of express notice, that his position was at risk
and why it was at risk.
[40]
The Attorney General
attempted to bolster his argument by arguing that express notice was not only
not required, but not possible because of the constraints under which the power
to remove Mr. Pelletier from office was exercised. He argued that Messrs
Coté and McCutcheon could not provide Mr. Pelletier with more information than
they did because they were bound by Cabinet confidentiality, as was Mr. Valeri.
This argument is spurious. Cabinet confidentiality did not prevent the issuance
of a press release in which the government justified its removal of Mr.
Pelletier from office. If it was appropriate to make such an announcement to
the public at large after terminating Mr. Pelletier’s appointment, it was
surely appropriate to raise the matter squarely with Mr. Pelletier prior to
doing so.
[41]
It does not assist
the Attorney General that he chose not to file affidavits from Mr. Coté,
Mr. Himelfarb, Mr. Valeri or Mr. Reynolds. If the constraints alleged by
the Attorney General were truly a factor in the conduct of these gentlemen,
then it was easy enough to have them say so under oath. Argument and
speculation are no substitute for evidence.
[42]
This leads to the
next issue which is the application judge’s purported failure to speculate as
to Mr. Pelletier’s state of mind. The Attorney General says that the question
of Mr. Pelletier’s knowledge of the situation is the key issue in the
litigation and that the application judge was bound to decide it. It is obvious
that the application judge did decide this question, in that he concluded that
Mr. Pelletier did not know of the reasons for his removal until after the fact:
see paragraph 94 of his reasons. The issue is not so much what he decided but
how he decided it. The judge’s comment that he should limit himself to the
facts and not speculate as to Mr. Pelletier’s state of mind suggests to the
Attorney General that the application judge simply refused to consider the
evidence which would have established Mr. Pelletier’s state of mind.
[43]
Mr. Pelletier was
well aware of the government’s first area of concern – the sponsorship scandal.
He had, however, received Mr. Himelfarb’s written assurance on February 26,
2004 that the government had announced no measures to be taken with respect to
his situation, in spite of a National Post story about rumours to that effect. These assurances may have comforted
Mr. Pelletier somewhat prior to the appearance of the Cardinal article.
After its publication, the issue was a live one once more.
[44]
As for the government’s
second area of concern – Mr. Pelletier’s comments with respect to Ms. Bédard –
the application judge’s review of the evidence led him to conclude that Mr.
Pelletier was never told that this incident put his appointment at risk.
Whether Mr. Pelletier knew or should have known that something was afoot is not
the test; the question is whether Mr. Pelletier knew that his removal was under
active consideration. The judge inferred from the evidence that Mr. Pelletier
was not aware that he was at risk of removal and the reasons why he was at such
risk.
[45]
Given that Mr.
Pelletier swore in his affidavit that he first learned of the reasons for his
removal from office when he read the government’s press release, it is
significant that the Attorney General chose not to cross-examine him on his
affidavit. The Attorney General had the means to test his theory that Mr.
Pelletier knew that his office was at risk prior to its revocation, but in
doing so he ran the risk that Mr. Pelletier’s evidence would not support his
theory. Having declined to run that risk, the Attorney General cannot credibly
ask the application judge to draw a conclusion which must have appeared to him
to be unlikely to be supported by Mr. Pelletier’s evidence.
[46]
The Attorney
General’s argument that the application judge declined to inquire into
Mr. Pelletier’s state of mind does not stand up to examination. The judge
drew the inference that Mr. Pelletier was not aware of the risk he faced. As
pointed out by the Supreme Court in Housen v. Nikolaisen, [2002] 2
S.C.R. 235 at paragraph 23, inferences of fact drawn by a judge of first
instance are entitled to the same deference as conclusions of fact:
23 We
reiterate that it is not the role of appellate courts to second-guess the
weight to be assigned to the various items of evidence. If there is no palpable
and overriding error with respect to the underlying facts that the trial judge
relies on to draw the inference, then it is only where the inference-drawing
process itself is palpably in error that an appellate court can interfere with
the factual conclusion. The appellate court is not free to interfere with a
factual conclusion that it disagrees with where such disagreement stems from a
difference of opinion over the weight to be assigned to the underlying facts.
As we discuss below, it is our respectful view that our colleague's finding
that the trial judge erred by imputing knowledge of the hazard to the
municipality in this case is an example of this type of impermissible
interference with the factual inference drawn by the trial judge.
[47]
The Attorney
General’s third argument, dealing with the shifting of the onus of proof is
also doomed to failure. By choosing to argue that Mr. Pelletier either knew or
ought to have known that his appointment was at risk, the Attorney General
assumed the burden of proving the facts which would support his argument. The
Attorney General’s evidence did not persuade the application judge that he
should draw the conclusion which he was asked to draw. The only burden of proof
which the Attorney General had to discharge was the one which he assumed.
[48]
Finally, given the
issues related to the question of notice, little attention was devoted to the
issue of the opportunity to be heard. The Attorney General attempted to argue
that Mr. Pelletier could have exercised his right to be heard by speaking
either to Messrs Coté and McCutcheon, or Mr. Valeri, but it is clear that
without notice of the jeopardy to which he was exposed, there was nothing for
Mr. Pelletier to say.
CONCLUSION
[49]
In light of the
above, I conclude that where the government, in the exercise of its statutory
power to terminate the appointment of persons named to office at pleasure,
proposes to act on the basis of a person’s misconduct, the duty of procedural
fairness requires that, where that person does not know that his or her
position is in jeopardy by reason of that misconduct, the person be informed of
the possibility of removal and of the reasons for that removal, and be given
the opportunity to be heard. I have deliberately refrained from speaking of
“disciplinary reasons” because it seems to me to be inappropriate to import
into the context of the removal, by the executive branch of government, of
persons holding office at pleasure, notions which are generally associated with
wrongful dismissal in the context of an employer/employee relationship.
[50]
In the circumstances,
I would dismiss the appeal with costs to the respondent. Mr. Pelletier asked
that he be awarded costs on a solicitor and client basis. Costs are not
generally awarded on that basis unless “there has
been reprehensible, scandalous or outrageous conduct on the part of one of the
parties” (Baker,
paragraph 77). No such conduct having been shown in this case, costs will be
awarded on a party and party basis and will be assessed in column III of
Tariff B of the Federal Courts Rules.
"J.D. Denis Pelletier"
“I agree.
Robert
Décary J.A.”
“I agree.
M. Nadon J.A.”
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