Weatherill v. Canada (Attorney General), docket T-18-98

Date: 19990528

Docket: T-18-98

BETWEEN:

JOHN FREDERICK WILLIAM WEATHERILL

Applicant

and

ATTORNEY GENERAL FOR CANADA

and NICOLE JAUVIN

Respondents

     REASONS FOR ORDER

SHARLOW J.:

[1]      On January 29, 1998, the Governor in Council ordered the removal of the applicant as Chairman of the former Canada Labour Relations Board. The applicant is asking for the removal order to be declared invalid and of no effect.

Background

[2]      The applicant was appointed Chairman of the Canada Labour Relations Board on March 9, 1989 by order of the Governor in Council, to hold office during good behaviour for a term of ten years commencing May 1, 1989. The appointment was authorized by section 10 of the Canada Labour Code.

[3]      On January 1, 1999, amendments to the Canada Labour Code made by S.C. 1998, c. 26 came into force. Those amendments made numerous changes but for present purposes I note only that they replaced the Canada Labour Relations Board with the Canada Industrial Relations Board, and abolished the office formerly held by the applicant.

[4]      By virtue of those amendments, the applicant's term would have ended on December 31, 1998, even if there had been no removal order. Therefore, it would appear that if the removal order was invalid, the applicant was wrongfully deprived of his office for a period of approximately 11 months, from January 29, 1998, to December 31, 1998.

[5]      The Canada Labour Relations Board, while it existed, was a branch of the federal government created by the Canada Labour Code. It was included in the definition of "department" in the Financial Administration Act, as are many other federal tribunals, commissions and agencies. Its function was to investigate, adjudicate and render decisions on matters covered by the Canada Labour Code.

[6]      Among the workers who come under the jurisdiction of the Canada Labour Code are those employed in railways, federal Crown corporations, airlines, chartered banks, interprovincial trucking, telecommunications, shipping and broadcasting.

[7]      By virtue of section 9 of the Canada Labour Code, the Canada Labour Relations Board consisted of a Chairman, one to four Vice-Chairmen, four to eight other full-time members, and any number of part-time members. The Chair was the chief executive officer.

[8]      Section 10 of the Canada Labour Code provided for the appointment and removal of members of the Canada Labour Relations Board. At the relevant time it read as follows:

10(1) Subject to subsections (2) and (3), the members of the Board shall be appointed by the Governor in Council to hold office during good behaviour for terms not exceeding

(a)      in the case of the Chairman and a Vice-Chairman, ten years;

(b)      in the case of any other full-time member, five years;

(c)      in the case of any part-time member, three years.

(2) A member of the Board is removable by the Governor in Council for cause.

[9]      Section 12 of the Canada Labour Code provided for the remuneration of members of the Canada Labour Relations Board. The relevant portions read as follows:

     Each member of the Board [...]

(a)      shall be paid a salary to be fixed by the Governor in Council; and

(b)      is entitled to be paid reasonable travel and other expenses incurred by him while absent from his ordinary place of residence in the course of his duties under this Part.

[10]      The removal order that is the subject of these proceedings was made after the Governor in Council was presented with a report prepared by Ms. Nicole Jauvin, in her capacity as Deputy Clerk of the Privy Council and Counsel. Ms. Jauvin is named as a respondent.

Preliminary argument relating to affidavits of Mr. Hefferon

[11]      At the hearing of this application, counsel for the respondents raised a preliminary argument for the exclusion from the record of two affidavits of Mr. Dennis Hefferon. Those affidavits are the only evidence adduced by the applicant. Mr. Hefferon is a lawyer who acts for the applicant but he is not counsel for the applicant in these proceedings. I did not exclude the affidavits.

[12]      Counsel for the respondents, in support of his submission that the affidavits should be excluded, cited Rule 82 which reads as follows:

Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court on that affidavit.

[13]      Rule 82 has no application. Mr. Hefferon is not counsel for the applicant in these proceedings. He is not even a member of the same firm as counsel for the applicant.

[14]      Counsel for the respondents also cited Rule 81, which reads as follows:

(1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefore, may be included.

(2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.

[15]      The affidavits include some statements of fact that are within Mr. Hefferon's direct knowledge. For example, there are statements that identify Mr. Hefferon, that describe his function as solicitor for the applicant at the relevant times, and that relate to communications that were part of the process leading to the removal order and steps taken in this proceeding. Some of these statements are relevant because they provide the basis for the applicant's arguments that the procedure leading to the removal order did not meet the requisite standard of fairness. Others deal with facts that are so uncontroversial as to provide no substantive basis for objection. Counsel for the respondent indicated that he was not objecting to most of the documents appended to the affidavits.

[16]      There are also statements of fact that are not within Mr. Hefferon's knowledge and are based on information and belief. In some cases the source of the information is the applicant or his executive assistant. Statements of that kind are found in paragraph 7, paragraph 10 except the first three sentences, paragraph 11, the third and fourth sentences of paragraph 12, the second sentence of paragraph 14 and paragraph 24 of the affidavit dated January 6, 1998.

[17]      There is no explanation as to why this evidence was not the subject of an affidavit by the applicant or his executive assistant. In my view, it is open to me to strike those statements from the record. However, in the circumstances of this case, it seemed to me more appropriate to leave these statements in the record and, when dealing with the issues to which they relate, consider the question of the adverse inference referred to in Rule 81(2).

[18]      Mr. Hefferon made other statements on information and belief for which the source of the information was a person within the Office of the Privy Council or the Office of the Auditor General. There is no reason to exclude that evidence merely on the basis that it is hearsay: Ethier v. Canada (Royal Canadian Mounted Police (R.C.M.P.) Commissioner), [1993] 2 F.C. 659 (C.A.). The truth of those statements must be presumed to be within the knowledge of the respondents.

[19]      There are other statements in the affidavits relating to press coverage of various events leading up to the removal, and events that occurred later. They were included to indicate something of the political climate prevailing at the time of publication. They were considered for that purpose only.

[20]      The affidavits also contain some statements that are opinions of Mr. Hefferon on points of law. Those statements are relevant only as background facts that afford some explanation of the applicant's dealings with Ms. Jauvin.

[21]      Counsel for the respondent indicated in argument that he did not attempt to cross-examine Mr. Hefferon on either affidavit because cross-examination would have risked the applicant's claim of solicitor client privilege. He cited Lex Tex Canada Limited v. Duratex Inc., [1979] 2 F.C. 722 (T.D.). In Lex Tex, the only affidavit in support of a motion to strike certain paragraphs of a statement of claim was the affidavit of the applicant's solicitor. Cross-examination on the affidavit was effectively blocked by claims of solicitor client privilege, and it was admitted that the solicitor was chosen as the deponent instead of the applicant in order to protect the applicant from cross-examination. The affidavit was struck, leaving no evidence to support the motion.

[22]      I do not read the Lex Tex case as authority for the proposition that I must strike the affidavit of Mr. Hefferon merely because of his status as the applicant's lawyer. In the absence of any evidence to the contrary, I must assume that Mr. Hefferon was open to cross-examination in the same manner as any other deponent. I have no basis for determining whether there is anything in Mr. Hefferon's affidavits that might have put the applicant's solicitor client privilege in jeopardy. Nor do I have any basis for determining whether the applicant was prepared to waive the privilege, as he would have been entitled to do. In my view, the fact that Mr. Hefferon acted for the applicant does not make it unfair to the respondents for the Court to permit the affidavits of Mr. Hefferon to remain in the record.

Facts

[23]      In April of 1997, the Minister of Labour asked the Office of the Auditor General to review travel expenditures, allowances and benefits reimbursed to the applicant and other Canada Labour Relations Board members.

[24]      This request was made after the Chairman's travel and hospitality expenditure records were released under the Access to Information Act and became the subject of press reports and questions in Parliament.

[25]      The result of the Auditor General's review of those expenditures is found in Chapter 26 of the Auditor General's report for 1997, which was tabled in Parliament on December 2, 1997. A copy had been provided to the applicant on November 7, 1997.

[26]      Of the 21 pages of text in Chapter 26, approximately 2" pages deal with the travel and hospitality expenditures of the Chairman from May, 1989 to March, 1997. On that subject the Auditor General's report contains the following critical statement, at paragraph 26.97:

As we have indicated, the Chair claims reimbursement of actual travel and hospitality expenses. We found that the Chair's pattern of travel and hospitality expenses is not reasonable.

The reort goes on to provide the factual basis for this conclusion.

[27]      The Office of the Auditor General had provided a draft of the relevant chapter to the applicant under cover of a letter dated October 6, 1997. The applicant was advised that the auditors were working under tight deadlines, and he was invited to advise them of any inaccuracies and to provided a written response by October 17, 1997. The letter also indicated that the auditors would be willing to meet with the applicant specifically to discuss the portions related to his travel and hospitality expenses.

[28]      By letter dated October 9, 1997, the applicant asked for more time to respond. His letter states that because of existing commitments for travel, meetings and hearings, the October 17 deadline would leave him only two working days to prepare his response. The deadline was extended to October 20, 1997.

[29]      The applicant provided a written response, which was published in the report. The portion of the response dealing with the applicant's travel and hospitality expenses reads as follows (emphasis added):

In the [chapter] ... the "conclusion" is stated that "the Chairman's pattern of expenditures on travel and hospitality is not reasonable". I do not accept that the expenditures were unreasonable.

I agree that the standard to be applied is one of "reasonableness". It is clear that a broad discretion exists in the case of a deputy head. This is clear both from the legislation and all applicable regulations. The [chapter] itself recognizes the special status of the deputy head position. Unreasonableness must be determined by reference to the responsibilities and functions of the Chairman of the Canada Labour Relations Board.

The work of the Chairman has three main aspects. First, he or she has an overall responsibility for the adjudicative operations of the Board (the extent of which has been the subject of great conflict), as well as a responsibility in the hearing and decision of certain cases before the Board. Actual hearing of cases has involved considerable and at times lengthy travel, the Board's geographical jurisdiction covering all of Canada. My own rate of participation in the hearing and deciding of cases is among the highest at the Board. On some occasions (see, for example, paragraph 26.106), hospitality expenses may be required.

Second, the Chairman as Chief Executive Officer and as deputy head of the department has administrative duties relating to a department which has offices in Ottawa and in five other locations across Canada. These responsibilities likewise involve considerable travel and, to some degree, hospitality.

Third, there is a more general role of leadership within the labour relations community, both within and outside Canada. The Chairman is, in an informal way, an ambassador for Canada, and represents Canada at international conferences. My expenses were in line with the expenses of other participants attending such conferences.

Reciprocal international conferences have been held in Canada with substantial intellectual and economic benefit to the country. These have included the hemispherical conference of the International Society for Labour Law and Social Security held in Montreal in 1995, and two conferences of the National Academy of Arbitrators (in Ottawa in 1990 and in Toronto in 1996 " when I was President of the Academy). The holding of the latter two in Canada has been primarily due to my efforts in this aspect of my work.

To state, as the [chapter] does, that expenses incurred in carrying out the duties of Chairman of the Board are unreasonable because they are substantially in excess of the Treasury Board regulations governing the expenses of public servants (regulations which clearly do not apply in the case of deputy heads), is wrong. The appropriate standard of comparison is not to public servants generally, but to public officials having the same status and performing the same or similar functions as the Chairman of the Board. The comparisons used in the report do not provide an appropriate basis for the assessment of my expenses, which in my view were appropriate to the circumstances.

[30]      The underlined words summarize the applicant's argument that the Auditor General's conclusions with respect to his travel and hospitality expenses were not based on sound comparisons.

[31]      The affidavit of Mr. Hefferon dated January 6, 1998 also refers, in paragraphs 13 to 19, to arguments that criticize the principles apparently adopted by the Auditor General. I have not attempted to determine the validity of those arguments, nor did counsel for the applicant suggest that I should do so. As I understand it, these points were made only to demonstrate that the applicant would have had arguments to make against removal for cause, if he had been allowed the kind of hearing he argues he was entitled to.

[32]      On December 2, 1997, the same day as the Auditor General's report was tabled in Parliament, Ms. Jauvin wrote to the applicant to advise him that the Governor in Council would be considering whether, in light of the Auditor General's report, there was cause for his removal pursuant to subsection 10(2) of the Canada Labour Code.

[33]      The letter explains that Ms. Jauvin had been asked by the Clerk of the Privy Council to review the issues and provide a report. The letter identifies the specific statements in the Auditor General's report that were of concern. The letter concludes with an invitation to the applicant to provide any information he considered relevant, or to otherwise comment on the accuracy of the Auditor General's report. Ms. Jauvin also offered to meet with the applicant that week.

[34]      On December 5, 1997, Mr. Hefferon met with Ms. Jauvin. The applicant did not attend that meeting. Mr. Hefferon says that he advised Ms. Jauvin that, contrary to her apparent understanding, the applicant had not been given sufficient time to respond to the draft Auditor General's report. Mr. Hefferon also told Ms Jauvin that he could not adequately respond to her December 2, 1997, letter without having access to the working papers and data collected or compiled by the Auditor General in forming his report, and sufficient time to analyze them.

[35]      Ms. Jauvin advised Mr. Hefferon that the applicant's expense requisitions had been returned to the Canada Labour Relations Board and should be accessible to the applicant there. She arranged a meeting that same day with officials of the Office of the Auditor General. At that meeting Mr. Hefferon was given some information orally, but the officials wished to consider his request for documents. By letter to the Office of the Auditor General dated December 9, 1997, the applicant made a formal request for the documents.

By letter dated December 10, 1997, the Office of the Auditor General provided the applicant with the working papers related to his expenses. However, they would not give him access to documents relating to the expense claims of other individuals or documents relating to agencies other than the Canada Labour Relations Board, nor would they identify the documents being withheld. They suggested that some of the material related to other government agencies might be obtainable from them under the Access to Information Act.

[36]      Ms. Jauvin, having been apprised of the situation, wrote to Mr. Hefferon on December 11, 1997, acknowledging that he would need more time to prepare. She proposed a meeting on December 17 or 18, and indicated that she would try to obtain some of the required documents directly from the other government agencies. She also indicated that the applicant would be afforded an opportunity to respond to her report in writing, and that she had been asked to conclude her report by Christmas.

[37]      Ms. Jauvin provided Mr. Hefferon with copies of the travel and hospitality expense statements of policy from the Atomic Energy Control Board, the National Film Board, the National Parole Board, the International Centre for Human Rights and Democratic Development, the Public Service Staff Relations Board and the Veterans Review and Appeal Board. This was apparently done by approximately mid-December, 1997. It appears from Ms. Jauvin's report (referred to below) that these organizations were those considered by the Auditor General as comparable to the Canada Labour Relations Board. Mr. Hefferon says that Ms. Jauvin did not tell him that when the documents were provided.

[38]      Mr. Hefferon says that in meeting with his client on December 13 and 14, 1997, he reached the conclusion that the process being undertaken was contrary to section 69 of the Judges Act, and would not result in a fair and impartial hearing. He wrote to Ms. Jauvin on December 14, 1997, to advise her of his position on this issue. At the same time he indicated that he still had not received the information he required as to the comparisons that were the basis of the Auditor General's report.

[39]      Ms. Jauvin replied to Mr. Hefferon on January 16, 1997, indicating that she did not agree with Mr. Hefferon's view of section 69 of the Judges Act. She repeated her proposal to meet on December 17 or 18, 1997.

[40]      Mr. Hefferon wrote back to Ms. Jauvin on the same day. He indicated that he still did not have the information he required, and that as he was not in a position to make an appropriate response, he would not meet with her. He repeated his views as to the appropriate procedure. After a telephone conference that evening, Ms. Jauvin agreed to consult counsel on the procedural question.

[41]      Between December 17 and December 19, 1997, telephone conferences were held between counsel, at the end of which there remained a disagreement with respect to the application of section 69 of the Judges Act.

[42]      Apparently, the applicant received no further information and there were no further meetings between Ms. Jauvin and Mr. Hefferon or the applicant.

[43]      Ms. Jauvin completed her report and a copy of it was delivered to the applicant on December 24, 1997, under cover of a letter from Mr. Michel Garneau, Assistant Clerk of the Privy Council. His letter indicates that the report was to be submitted to the Governor in Council. The applicant was told that any written reply he wished to make would be submitted to the Governor in Council as well, but that it should be received by January 16, 1998.

[44]      The report itself is mostly factual. It includes information about the meetings and correspondence between Ms. Jauvin and Mr. Hefferon. The report makes it clear that Mr. Hefferon had advised Ms. Jauvin that he did not believe that he had sufficient information to make an appropriate response, and that this was the reason for the lack of any submission on behalf of the applicant.

[45]      Apart from the facts, the report contains a discussion of some legal principles, including the meaning of "good behaviour" and the procedural requirements for the exercise of the power to terminate an appointment, as considered in Wedge v. Canada (Attorney General) (1995), 133 F.T.R. 277 (F.C.T.D.).

[46]      The report repeats the conclusions reached by the Auditor General as to the reasonableness of the applicant's expenses but does not state any opinion by Ms. Jauvin on that point. The report expresses no opinion or recommendation as to whether there was cause for removal of the applicant as Chairman of the Canada Labour Relations Board, but advises that this is a determination to be made by the Governor in Council.

[47]      The applicant made no submission to the Governor in Council in response to Ms. Jauvin's report.

[48]      On January 7, 1998, the applicant commenced this application for judicial review, seeking an order preventing the Governor in Council from considering the question of removal in the absence of an inquiry under section 69 of the Judges Act. At the same time an application was made for an interim injunction to prevent the Governor in Council from considering the question of removal until the completion of the judicial review.

[49]      The interim injunction application was heard and denied by Joyal J. on Friday, January 23, 1998.

[50]      The applicant commenced an appeal on the following Monday, January 26, 1998, and sought an expedited hearing date.

[51]      Meanwhile, on Monday, January 26, 1998, Mr. Garneau of the Privy Council Office wrote to the applicant, reminding him that the original deadline for his submission in response to Ms. Jauvin's report was January 16, 1998. He indicated that matters had been deferred pending the result of the hearing of the interim injunction application, but as that application had been denied, the process would be resumed. Mr. Garneau requested the applicant's written submissions by 5:00 p.m. the following Wednesday, January 28, 1998.

[52]      The hearing of the appeal was scheduled for Monday, February 2, 1998. On Tuesday, January 27, 1998, Mr. Hefferon wrote to Mr. Garneau at the Privy Council Office asking that the process be stopped pending the hearing of the appeal, and reminding him that the applicant still had not been given all the documents required to respond to the report. No further information was provided to the applicant.

[53]      On the same day, Tuesday, January 27, 1998, the applicant applied to the Federal Court of Appeal for an interim injunction pending the hearing of the appeal the following Monday. That application was heard and denied by Pratte J.A. on Wednesday, January 28, 1998.

[54]      On Thursday, January 29, 1998, counsel for the respondents wrote to counsel for the applicant, in reply to Mr. Hefferon's letter of January 27, 1998, to advise that the process would continue. On that same day, the Governor in Council made the removal order.

[55]      The appeal of the order of Joyal J. with respect to the interim injunction was thus rendered moot and was never heard. The applicant, however, continued with the application for judicial review.

Analysis

[56]      The applicant argues, first, that a person appointed pursuant to an Act of Parliament to hold office during good behaviour cannot be removed from office without an inquiry under section 69 of the Judges Act, and second, in this case, there was a denial of fundamental justice in the procedure that led to the removal order.

[57]      No issue is raised in this application as to whether or not there was cause for the

removal of the applicant, or whether his travel and hospitality expenses were reasonable within the meaning of section 12 of the Canada Labour Code. I am asked to review only the process by which the Governor in Council's decision was made, not the merits of the decision itself.

Section 69 of the Judges Act

[58]      The relevant part of subsection 69(1) of the Judges Act reads as follows:

The Council [Canadian Judicial Council] shall, at the request of the Minister [of Justice], commence an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour other than

(a)      a judge of a superior court or of the Tax Court of Canada, or

(b)      a person to whom section 48 of the Parliament of Canada Act applies,

should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d).

[59]      The reasons listed in paragraphs 65(2)(a) to (d) are:

(a)      age or infirmity,

(b)      having been guilty of misconduct,

(c)      having failed in the due execution of that office, or

(d)      having been placed, by his conduct or otherwise, in a position incompatible with the due execution of that office.

[60]      Subsection 69(2) incorporates by reference certain provisions of the Judges Act relating to inquiries and investigations concerning judges, with necessary modifications. These are subsections 63(3) to (6), sections 64 and 65, and subsection 66(2).

[61]      By virtue of subsection 63(4), the Council when conducting an inquiry or investigation is deemed to be a superior court, with the power to summon witnesses, take evidence on oath or affirmation, and compel attendance and the production of documents. By virtue of section 64, the person who is the subject of an inquiry is entitled to reasonable notice of the subject-matter of the inquiry, and of the time and place of any hearing, and has the right to be heard at the hearing, to cross-examine witnesses and to adduce evidence on his own behalf. The result of an inquiry is a report to the Minister of Justice under 65(1). Subsection 65(2) provides that the report may recommend the removal of the person from office.

[62]      Subsection 69(3) provides that if there is a report to the Minister of Justice under subsection 65(1) in respect of a person referred to in subsection 69(1), the Governor in Council may, on the recommendation of the Minister, by order remove the person from office. It is clear that the Governor in Council, when considering the question of removal of a person in respect of whom there has been an inquiry under subsection 69(1), may make a removal order whether the report of the Council contains a recommendation for removal or not.

[63]      Section 70 provides that if an appointment is terminated under subsection 69(3), the order and all related reports and evidence must be laid before Parliament within a specified time.

[64]      It is undisputed that the office of Chairman of the Canada Labour Relations Board is an office held "during good behaviour." That is the implication of the requirement in section 10 of the Canada Labour Code that imposes a maximum term and permits removal "for cause."

[65]      It is also undisputed that in this case no inquiry was held under section 69 of the Judges Act. The applicant says that is a fatal flaw in the process. The respondent's position is that section 69 affords an optional procedure, not a mandatory one.

[66]      It is important to note that the language of subsection 69(1) is parallel to that of subsection 63(1), which applies to superior court judges. I will quote those provisions for comparison:

63(1)      The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court or of the Tax Court of Canada should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d).

63(2)      The Council may investigate any complaint or allegation made in respect of a judge of a superior court or of the Tax Court of Canada.

69(1)      The Council shall, at the request of the Minister, commence an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour other than

(a)      a judge of a superior court or of the Tax Court of Canada, or

(b)      a person to whom section 48 of the Parliament of Canada Act applies,

should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d).

[67]      The procedural protection in section 64 is afforded to any person who is the subject of an inquiry or investigation under any of these provisions. Subsection 65(1) says that any such inquiry or investigation must end in a report to the Minister. Under subsection 65(2) that report may contain a recommendation for removal, and thus may lead to removal.

[68]      In the case of a superior court judge, removal would require a joint address of the House of Commons and the Senate. In the case of a person to whom section 69 applies, removal would require an order of the Governor in Council.

[69]      The question, however, is whether an investigation or inquiry by the Canadian Judicial Council is an essential precondition for removal. It seems to me that as a matter of statutory interpretation, the answer must be the same for superior court judges and persons to whom section 69 applies. If the inquiry process in section 69 of the Judges Act is optional rather than mandatory, then so is the inquiry or investigation process in section 63. If that is so, then by necessary implication it is legally possible for a superior court judge to be removed from office by a joint address of the House of Commons and Senate that is not preceded by an inquiry or investigation by the Canadian Judicial Council.

[70]      Given the necessary connection between section 63 and section 69, counsel for the applicant argues for a constitutional imperative that justifies reading both provisions as mandatory preconditions to removal. I summarize his argument as follows. The requirement of security of tenure for a person holding judicial or quasi-judicial office is a basic constitutional principle. Such security cannot be assured in the absence of a statute that precludes removal without a hearing with all the rights referred to in section 64 of the Judge Act. As sections 63 and 69 of the Judges Act are the only statutory provisions that afford an appropriate procedure, those provisions must be interpreted as mandatory.

[71]      Respondents' counsel argues that the procedures in subsection 63(1) and 69(1) are not mandatory, but optional. He says they can be commenced only at the discretion of the Minister of Justice. He argues that the words of the statute cannot reasonably bear the applicant's interpretation, and that the applicant's argument would require reading into the Judges Act a provision to the effect that the Minister of Justice must make a request under section 69 if a removal decision is under consideration.

[72]      There is no question as to the importance of security of tenure as far as judges are concerned. The issue has been discussed extensively in cases dealing with the right of a person charged with an offence to a fair and public hearing by an independent and impartial tribunal as required by section 11(d) of the Charter.

[73]      Valente v. The Queen, [1985] 2 S.C.R. 673 was such a case. The issue was whether an Ontario provincial court judge was a tribunal that met the standard of independence in section 11(d). Le Dain J., speaking for the Court, said (at page 694):

Security of tenure, because of the importance that has traditionally been attached to it, must be regarded as the first of the essential conditions of judicial independence for purposes of s. 11(d) of the Charter.

[74]      The provincial statute provided that he could be removed from office by the Lieutenant Governor in Council, but only for misbehaviour or for inability to perform his duties properly, and only after an inquiry by a superior court judge at which the provincial court judge was given a full opportunity to be heard. The report of the inquiry had to be laid before the Legislature, but the Lieutenant Governor in Council was not bound by its findings or recommendations. The Court's conclusion is stated at page 698:

In sum, I am of the opinion that while the provision concerning security of tenure [...] falls short of the ideal or highest degree of security, it reflects what may be reasonably perceived as the essentials of security of tenure for purposes of s. 11(d) of the Charter; that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the affected judge is afforded a full opportunity to be heard. The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.

[75]      With respect to the position of superior court judges, he said this at page 695:

There are, of course, a variety of ways in which the essentials of security of tenure may be provided by constitutional or legislative provision. As I have indicated, superior courts in Canada enjoy what is generally regarded as the highest degree of security of tenure in the constitutional guarantee of s. 99 of the Constitution Act, 1867 that they shall hold office during good behaviour until the age of seventy-five, subject to removal by the Governor General on address of the Senate and House of Commons. The judges of this Court, the Federal Court of Canada and the Tax Court of Canada also enjoy, under their respective governing statutes, a tenure during good behaviour until a specified age of retirement, subject to removal only on address of the Senate and House of Commons.

[76]      Thus, there is more than one way to provide the security of tenure that is required by section 11(d) of the Charter. In the case of a superior court judge, security of tenure is protected by the machinery of removal, the transparent and cumbersome procedure of joint address. In the case of a judge who can be removed by executive order, security of tenure is provided by the statutory requirement for cause and the existence of a legal right to a full hearing by an independent body. It is not suggested in Valente that these are the only permissible techniques for providing security of tenure.

[77]      It is not clear to me whether the constitutional validity of decisions of the Canada Labour Relations Board requires the same degree of security of tenure for its members. Counsel for the applicant urges that the Canada Labour Relations Board is a quasi-judicial body with a broad jurisdiction. It is entrusted with very important decisions that are not subject to judicial scrutiny except in the most limited circumstances. I agree with that. But at the same time, respondents' counsel says, correctly, that the Canada Labour Relations Board is not a court. There is no scope for the application of section 11(d) of the Charter in matters heard by the Canada Labour Relations Board.

[78]      Assuming there is some need for security of tenure for members of the Canada Labour Relations Board, what is the standard to be applied? Is it the same as for provincial court judges, or will something less suffice?

[79]      In Alex Couture Inc. v. Canada (Attorney General) (1991), 83 D.L.R. (4th) 577, [1991] R.J.Q. 2534, an analogous question was considered by the Quebec Court of Appeal in the context of the Competition Tribunal established under the Competition Tribunal Act. Some members of that tribunal are judges of the Federal Court, Trial Division and others are lay members appointed by the Governor in Council on the recommendation of a Minister, who is required to consult with an advisory council. The constitutionality of the Competition Act and the Competition Tribunal were challenged on numerous grounds, including the lack of independence of the tribunal, on the basis that lay members did not enjoy security of tenure. On that point Rousseau-Houle J.A., speaking for the Court, said this at page 665-6 (emphasis added):

The lay members may be removed before the end of their appointment by the Governor in Council. Such removal must be for cause [...]. The Act does not specify the specific causes for removal but this is not required as an essential condition for judicial independence for the purposes of s. 11(d) of the Charter. As the lay members are appointed to hold office during good behaviour, the Governor in Council can only remove them for some cause related to the exercise of their function. In this regard, the method of removal would appear to be sufficient. As Le Dain J. wrote in Valente, at p. 179:

It may be that the requirement of an address of the legislature makes removal of a judge more difficult in practice because of the solemn, cumbersome and publicly visible nature of the process, but the requirement of cause, as defined by statute, together with a provision for judicial inquiry at which the judge affected is given a full opportunity to be heard, is in my opinion a sufficient restraint upon the power of removal for purposes of s. 11(d).

The Competition Tribunal Act does not specifically provide for the holding a prior hearing in a proceeding in which the person in question is given an opportunity to be heard. The rules of natural justice and s. 69 of the Judges Act [...] supplement the absence of a specific legislative provision in a satisfactory fashion. Should the Governor in Council be called upon to exercise his power to remove a lay member, he would be obliged to adopt a fair process which would provide the opportunity for the person in question to be heard [...]. Moreover, s. 69 of the Judges Act provides that, at the request of the Minister of Justice for Canada, the Canadian Judicial Council shall hold an inquiry [...].

If it were called upon to hold such inquiry concerning a lay member of the Competition Tribunal, the council would be required, pursuant to s. 64 of the Judges Act, to afford the member an opportunity to be heard and to adduce evidence that he considers relevant. The report of the inquiry is submitted to the Minister of Justice who may remove the person in question on the basis of this report. The fact that the commencement of this inquiry process is left to the discretion of the Minister of Justice does not permit, in my view, the conclusion that the minimum standard required by Valente has not been met.

The whole of these provisions and the rules of natural justice concerning security of tenure sufficiently demonstrate, in my view, that the office of the lay members of the tribunal is secure against interference in a discretionary or arbitrary manner by the Governor in Council, who is responsible for appointments.

[80]      From these comments, it appears to me that the requirement of security of tenure was met in this case by the combination of three elements. The first was the statutory requirement of "cause" as the ground for removal. The second was the obligation of the Governor in Council to observe the principles of natural justice when making a removal decision. The third was the potential for an independent inquiry under section 69 of the Judges Act, despite the fact that section 69 could not be engaged except at the discretion of the Minister of Justice.

[81]      As I read this case, an inquiry under section 69 of the Judges Act was acknowledged to be a mere possibility while the application of the principles of natural justice are mandatory. In my view, that leads to the conclusion that if section 69 had never been enacted, the first two elements would suffice. The principles of natural justice are as binding on the Governor in Council, when considering whether to exercise a statutory power to remove a person from a position on a tribunal, as any procedural requirements in a statute. That is so even though the particular requirements of natural justice will necessarily vary from case to case. Therefore, a tribunal cannot be said to lack security of tenure merely because, in the event of a proposal to terminate an appointment, no procedural protections are mandated by statute.

[82]      As stated above, the argument for the applicant is that security of tenure cannot be assured unless section 69 of the Judges Act is interpreted as a mandatory requirement, and therefore section 69 should be read as mandatory. My conclusion is that security of tenure does not require section 69. Therefore the applicant's argument on the interpretation of section 69 must fail for lack of a premise.

[83]      My interpretation of subsection 69(1) is that it applies only at the discretion of the Minister of Justice.

[84]      In my view, this interpretation is the one that is consistent with all the words of the statute. It is the only interpretation that gives effect to the words "at the request of the Minister" in a statute that requires the Council to act at her request but does not compel the Minister to make a request. It is also the only interpretation that is consistent with section 71 of the Judges Act, which reads as follows:

Nothing in, or done or omitted to be done under the authority of, any of sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections.

[85]      In this regard I refer to the comments of Strayer J. in Gratton v. Canadian Judicial Council, [1994] 2 F.C. 769 at page 802-3:

It is for the Canadian Judicial Council to recommend removal, but Parliament has the ultimate responsibility to decide whether to use the only constitutional device for removal, namely the joint address. There is nothing in the Judges Act which precludes Parliament considering the removal of a judge without any recommendation from the Council. Indeed section 71 of the Judges Act specifically preserves Parliament's power in this respect.

[86]      That is not to say that the decision to remove a superior court judge can be made without complying with the principles of fundamental justice. But I cannot justify the conclusion that an inquiry or investigation by the Council under the Judges Act is the only possible means for accomplishing that objective.

[87]      Similarly, the removal of a person from an office held during good behaviour cannot be done without affording that person procedural protection. I do not accept, however, that a full hearing, with examination and cross-examination of witnesses, and full disclosure of documents, is essential to the fair exercise of the power of removal.

[88]      In this regard, I agree with the following statements of MacKay J. in the Wedge case (supra) at page 282:

... the requirements of procedural fairness were satisfied in this case in that the applicant was apprised of the substance of the allegations against him, and of the investigation report and the final Report about those allegations, and he was accorded a fair opportunity to respond orally once ... and twice thereafter in writing.

[89]      The issue then becomes whether or not the procedure adopted by the Governor in Council in this case met those requirements.

Procedural fairness

[90]      The applicant argues that he was denied procedural fairness. He argues that there was a reasonable apprehension of bias, as demonstrated by press reports to the effect that members of Parliament, including the Prime Minister, applauded when the Minister of Labour announced his intention to commence proceedings for the applicant's removal. He argues also that he should have been given better access to the documents relied on by the Auditor General, and more time to respond to the report of Ms. Jauvin.

[91]      I am not persuaded that the press reports are sufficient to establish a reasonable apprehension of bias. First, there is no evidence before me as to whether the facts as reported are true. Secondly, if they are true, I can see no basis for distinguishing this case from that of Mohammad v. Canada, [1989] 2 F.C. 363 (C.A.). Nor do I accept that the applicant was denied a fair opportunity to respond to the allegations against him, or that he was unfairly treated. I accept the submissions of the respondents' counsel that the applicant in this case was afforded substantially the same information and substantially the same opportunity to be heard as the applicant in the Wedge case.

[92]      The applicant initially was asked to provide written submissions to Ms. Jauvin and meet with her on December 17 or 18, 1997. He did not do so, and his reasons for not doing so were fairly stated in Ms. Jauvin's report for consideration by the Governor in Council.

[93]      When Ms. Jauvin's report was provided to him on December 24, 1997, he was asked to provide a written reply to the Governor in Council by January 16, 1998, later extended to January 28, 1998. He did not do so.

[94]      I do not accept that his decision to make no submissions to Ms. Jauvin or the Governor in Council was due to a lack of time or knowledge. From October of 1997, he knew in general terms the factual foundation for the Auditor General's report. He knew that the Auditor General had considered the expense guidelines applicable to other public officials, though he did not have access to their actual claims. He knew, from December 2, 1997, the substance of the allegations that were under consideration with respect to the decision as to whether he should be removed.

[95]      In early December, he had the opportunity to discuss the Auditor General's report with the auditors who worked on it. With some effort, he obtained by approximately mid-December of 1997 the expense guidelines applicable to organizations thought to be comparable to the Canada Labour Relations Board. Ms. Jauvin's report, which he had on December 24, 1997, says that these were the same organizations considered by the Auditor General.

[96]      The Governor in Council delayed its decision while the applicant's initial application for an interim injunction was pending. The applicant failed to take advantage of even that delay to prepare a written reply to the Governor in Council, in case the interim injunction was not granted. In my view the Governor in Council did not act unfairly in refusing further delay after the decision of Joyal J.

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Conclusion

[97]      This application for judicial review is dismissed with costs.

                                 Karen R. Sharlow

                            

                                     Judge

Ottawa, Ontario

May 28, 1999