Docket: A-82-14
Citation:
2015 FCA 5
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CORAM:
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DAWSON J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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GARTH H. DRABINSKY
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Appellant
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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
NEAR J.A.
I.
Introduction
[1]
Garth H. Drabinsky appeals from the January 8,
2014 decision of the Federal Court (2014 FC 21), in which the Federal Court
judge dismissed his application for judicial review. In the Federal Court Mr.
Drabinsky challenged the following “decisions” in
the process that led to the termination of his appointment as a member of the
Order of Canada:
1.
The decision of the Advisory Council of the
Order of Canada (the “Advisory Council”) to
require that the applicant, Mr. Drabinsky, submit by no later than August 7,
2012 all materials for review by the Advisory Council in its consideration as
to whether to recommend that Mr. Drabinsky’s appointment as an Officer of the
Order of Canada be terminated;
2.
The decision of the Advisory Council to
disregard or to reject Mr. Drabinsky’s request for an extension of the August
7, 2012 deadline so that he could access persons, information, and materials
which he was unable to obtain before August 7, 2012 or while he remained
in custody at Beaver Creek Institution;
3.
The decision of the Advisory Council to
recommend to the Governor General of Canada that he issue an Ordinance
terminating Mr. Drabinsky’s appointment as an Officer of the Order of Canada,
as set out in a letter dated January 17, 2013 and communicated to Mr. Drabinsky
through his lawyers on February 1, 2013; and
4.
The decision of the Governor General to issue
the Ordinance on the basis of the recommendation described in paragraph 3,
above.
[2]
For the reasons set out below, I would dismiss
the appeal.
II.
Facts and Judicial History
[3]
The facts of this case were aptly summarized by
the Federal Court judge:
[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.
[4]
In dismissing the application for judicial
review the Judge found that the decisions of the Advisory Council and the Governor
General could not be reviewed for their substance because “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” (at para. 18). This flows from the fact that no
Canadian citizen can claim a “right” to an honour
(citing Black v. Canada (Prime Minister), 54 O.R. (3d) 215 at para. 60,
[2001] OJ No. 1853 (QL)).
[5]
The Federal Court judge did accept, however,
that the Advisory Council’s decision could be challenged on the procedural
question of whether the process leading to the termination of the appointment
met the affected person’s legitimate expectations (at para. 21). He did so
based on the Federal Court’s reasoning in Black v. Advisory Council for the
Order of Canada, 2012 FC 1234 at para. 63, 2012 F.C.J. No. 1309 (QL).
III.
Issues
[6]
The issues before this Court are:
1. Are decisions of the Advisory Council to recommend termination of an
appointment to the Order of Canada justiciable?
2. Did the procedure followed by the Advisory Council fail to meet any legitimate
expectations held by Mr. Drabinsky?
IV.
Analysis
[7]
In my view, there is no need for this Court to
opine on the issues of justiciability and whether legitimate expectations can
be created where no common law duty of fairness arises. Assuming without
deciding that the decision to terminate Mr. Drabinsky’s order is justiciable
and that the doctrine of legitimate expectations has application, there is no
basis to find that the process followed by the Advisory Council failed to meet
the appellant’s legitimate expectations.
[8]
The law is well-settled that only clear,
unambiguous, and unqualified representations as to procedure can give rise to a
legitimate expectation (Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 94, 98, 99. See
also Canada (Attorney General) v. Mavi, 2011 SCC 30 at para. 68,
[2011] 2 S.C.R. 504).
[9]
Before us Mr. Drabinsky argued that he had a
legitimate expectation to a fair process and that the Advisory Council would
ascertain all of the relevant facts. This did not happen, he argues, in the
following respects.
[10]
First, he was given an inadequate extension of
time to respond to the Advisory Council. This meant it had an inadequate record
on which to base its recommendation.
[11]
Second, the Advisory Council did not communicate
findings to support its recommendation to the Governor General.
[12]
Finally, he was not immediately advised of the
decision of the Governor General.
[13]
I reject the notions that Mr. Drabinsky had any
legitimate expectation that he would receive an indefinite extension, and that
the Advisory Council would make findings of the sort Mr. Drabinsky desired.
I reach these conclusions for the following reasons.
[14]
First, the Policy and Procedure for
Termination of Appointment to the Order of Canada relied upon by Mr.
Drabinsky does not contain a clear, unambiguous and unqualified representation
that any requested extension will be granted. At best, the Policy authorizes
the Secretary General of the Order to grant an extension of time to respond.
Similarly, the Secretary General’s statement in his letter of June 7, 2012 to
Mr. Drabinsky that he could make representations “supported
by the documentation you deem appropriate, by July 7, 2012” could not
give rise to a legitimate expectation of an indefinite extension.
[15]
Second, the Advisory Council put before the
Governor General the entire record that was before it and advised that “[a]fter reviewing all the facts in the matter, notably the
material provided” the Advisory Council is recommending that Mr.
Drabinsky’s appointment be terminated. In other words, the Advisory Council found
the record before it supported termination. Nothing in the Policy creates a
legitimate expectation that the Advisory Council will give detailed reasons as
Mr. Drabinsky seeks.
[16]
Finally, even if Mr. Drabinsky had a legitimate
expectation that he would receive immediate notice of the Governor General’s
decision, any failure to do so is of no legal consequence. Mr. Drabinsky
commenced his application for judicial review on a timely basis when notified
of the decision.
[17]
As the Federal Court judge found, the process
leading to the termination of the appellant’s appointment was consistent with
the Policy. The appellant was granted an extension of time to make submissions,
and he made substantial written submissions within the extended timeframe
granted to him. These materials were considered, and formed the basis of the Advisory
Council’s recommendation to the Governor General. The Governor General made his
decision based upon the recommendation from the Advisory Council.
[18]
While the appellant would have preferred greater
procedural entitlements, given the limited nature of the entitlements afforded
to him under the doctrine of legitimate expectations, I see no basis upon which
this Court should intervene.
V.
Conclusion
[19]
I would dismiss the appeal. The respondent has ten
(10) days to make submissions in writing as to costs. Mr. Drabinsky shall then
have ten (10) days to respond. The parties’ submissions may be in letter form
and shall not exceed two (2) pages in length.
"David G. Near"
“I
agree.
Eleanor R. Dawson
J.A.”
“I
agree.
Wyman
W. Webb J.A.”
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