Wedge v. Canada (Attorney General), docket T-2812-94

     T-2812-94

BETWEEN:

     RONALD ARTHUR WEDGE

    

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

MacKAY J.:

     This is an application for judicial review of a decision of the Governor in Council (P.C. 1994-1791) dated October 27, 1994 which, pursuant to s.4(4) of the Veterans Appeal Board Act, S.C. 1985, c. V-1.2, (the "Act"), terminated the applicant's appointment as a member of the Veterans Appeal Board.

     The applicant seeks judicial review of the decision on the grounds that the Governor in Council:

i)      breached the principles of natural justice and procedural fairness by relying on a biased and incomplete investigation and by failing to give the applicant a proper opportunity to be heard;

ii)      erred by improperly delegating its decision-making authority; and

iii)      did not have cause to terminate the applicant's appointment and erred by applying the wrong standard for "good behaviour" in deciding to terminate the applicant's appointment.

     By way of relief, the applicant seeks a writ of certiorari or an order pursuant to s.18.1(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, quashing or declaring invalid the Order in Council, and he seeks costs of this application.

Facts

     On March 28, 1991, by Order-in-Council P.C. 1991-616, His Excellency the Governor in Council, upon the recommendation of the Minister of Veterans Affairs, appointed the applicant a member of the Veterans Appeal Board (the "VAB"). According to the Order in Council, this appointment, made pursuant to s.4 of the Act, was to be held by the applicant "during good behaviour for a term of seven years, effective April 1, 1991".¹

     Section 4 of the Act provided as follows:

4.(1) There is hereby established an independent and impartial board, to be known as the Veterans Appeal Board, consisting of a Chairman, a Deputy Chairman, four other members and such number of additional members as are appointed in accordance with subsection (2).

(2) Additional members of the Board may be appointed whenever, in the opinion of the Governor in Council on the advice of the Minister, the workload so requires .

(3) The members shall each be appointed by the Governor in Council for a term not exceeding seven years, except that each additional member shall be appointed for a term not exceeding five years.

(4) Each member holds office during good behaviour and may be removed by the Governor in Council at any time for cause.

     In May or June 1993, the applicant learned that the R.C.M.P. were investigating allegations that he, and others, had been involved in irregularities that allegedly occurred in connection with a general election in Prince Edward Island in March 1993. In December 1993, the R.C.M.P. announced its investigation was concluded, that there was not evidence of offences, and no criminal or other charges were thereafter laid.

     Subsequently, on May 2, 1994, the applicant received a letter from Margaret Bloodworth of the Privy Council Office expressing concern regarding his suitability to remain a member of the VAB. The concern, the letter noted, pertained to the applicant's conduct in connection with the 1993 provincial election in Prince Edward Island. According to the letter, the allegations giving rise to the concern were that the applicant had assisted and encouraged two individuals to vote in that election when he knew they were ineligible to do so, and that prior to the election, he had taken steps to assist a third individual to vote when he also knew that person was ineligible to do so.

     In light of these allegations, the letter stated, the Governor in Council was required to decide whether the applicant's conduct was consistent with the requirement of "good behaviour", or whether cause existed for removing him from office. The letter advised that the Clerk of the Privy Council had requested Ms. Bloodworth and Ms. Twila Whalen, Chairperson of the VAB, to review the applicant's conduct and to report on the matter.

     The letter enclosed a copy of an earlier report of an investigation into the underlying circumstances of the allegations (the "investigation report"). This investigation and report had been completed for the Department of Justice by private investigators. After outlining in detail the allegations giving rise to the concern regarding his suitability to remain in office, the letter advised the applicant that in order to provide him with an opportunity "to provide any further facts or circumstances which should be taken into account, or to otherwise comment on the accuracy of the facts included in the investigation report", a meeting had been scheduled with Ms. Bloodworth and Ms. Whalen to hear his comments with respect to whether his alleged conduct was consistent with good behaviour.

     On June 9, 1994, that meeting was held, with the applicant, accompanied by his counsel, and Ms. Bloodworth and Ms. Whalen. At this meeting, the applicant and his counsel raised a number of their concerns, including possible bias on the part of Ms. Bloodworth and Ms. Whalen, the reliability of the evidence provided by the investigation report, and general objections to the manner in which the investigation was being conducted. A principal factor underlying the concern about possible bias arose because the Secretary of State for Veterans Affairs, when interviewed sometime before the June 9 meeting about the allegations of irregularities in the P.E.I. general election, commented publicly that a decision to fire alleged perpetrators would soon be made by the Privy Council Office. Following the June meeting counsel for the applicant made written submissions to Ms. Bloodworth about the appropriate standard for "good behaviour".

     In September 1994, the review by Ms. Bloodworth and Ms. Whalen and their report to the Privy Council (the "Report"), was completed. By letter dated September 19, 1994, the applicant was provided with a copy of the Report and invited to respond to it by making written submissions, which, the letter noted, would be forwarded to the Governor in Council for consideration. The applicant responded with written submissions dated October 6, 1994 which outlined his concerns regarding the manner in which the investigation was conducted, particularly the completion of the investigation report, as well as the findings of the final Report.

     The applicant's written submissions, the Report, the earlier investigation report and related material were then forwarded to the Governor in Council for consideration. After considering the matter, by Order-in-Council P.C. 1994-1791, dated October 27, 1994, on the recommendation of the Minister of Veterans Affairs, the Governor in Council determined that the conduct of the applicant during the 1993 P.E.I. provincial election was "incompatible with his position as a member of the VAB", and on this basis, terminated the applicant's appointment pursuant to s-s.4(4) of the Act. The applicant was advised of this decision by letter dated October 27, 1994.

     On November 24, 1994, the applicant filed this application for judicial review of the decision of the Governor in Council. The hearing of the application came on before me in Charlottetown, Prince Edward Island on December 17, 1996 and at the end of the hearing I reserved judgment.

Submission of the Parties

     The applicant bases his application for judicial review principally on three grounds. The first, the applicant submits, is that he was denied procedural fairness in the manner in which (i) the investigation was conducted, in that he was not given a full opportunity to be heard, and (ii) the final Report was prepared, relying heavily on the earlier investigation report which contained prejudicial and unsubstantiated allegations about the applicant, including statements from witnesses whom he was not given an opportunity to confront or to cross-examine. Further, it is submitted that the Bloodworth-Whalen Report failed to include a complete representation of the concerns raised by the applicant and his counsel at the June 1994 meeting.

     The applicant's second ground for judicial review is that the Governor in Council erred by improperly delegating its decision-making authority to its subordinates, in particular, by basing its decision on the Bloodworth-Whalen Report and on the recommendation of the Minister of Veteran Affairs.

     The third ground raised by the applicant is that the Governor in Council erred by applying the wrong standard for "good behaviour". The applicant submits that rather than apply an objective test which considers conduct only in matters concerning the office, the Governor in Council erred by applying an overly broad "judicial" standard which also looks to conduct outside the workplace to determine whether public confidence in the institution in question could be undermined. According to the applicant, while the VAB does perform an adjudicative role, it is not a court, and its members are not judges, and therefore, the Governor in Council erred in applying a stringent standard of "good behaviour", applicable to those holding judicial appointments, which, the applicant submits, was inappropriate in the circumstances.

     According to the respondent, the requirements of procedural fairness and natural justice are not absolute, but rather are to be determined on the basis of a contextual approach, which considers the decision-making process in question as a whole, in light of nature of the decision-making body and the decision to be made.

     For the respondent, it is urged that as the Governor in Council is not an adjudicative body exercising adjudicative functions, it's proceedings are not subject to the procedural protections ordinarily applicable in courts. In the present context, the respondent submits that as s.4 of the Act is silent with respect to the procedure to be followed, the Governor in Council is obliged only to comply with the common law requirements of procedural fairness that the applicant be apprised of allegations against him and be given a fair opportunity to respond. These requirements, the respondent submits, have clearly been satisfied in the present case, as the applicant was informed of the allegations against him and was given ample opportunity to respond, which he did at the June 9, 1994 meeting, by making written submissions following that meeting, and again with his written submissions in response to the Bloodworth-Whalen Report, a copy of which was sent to him before it was submitted, with his written submissions, to the Governor in Council.

     With respect to the standard of "good behaviour" to be applied in the present case, according to the respondent, where the conduct of a public office holder is at issue, it is not possible simply to draw an arbitrary line between one's conduct inside and conduct outside the office. Rather, the respondent submits, in determining whether the applicant's conduct was consistent with "good behaviour", the germane consideration is one of public confidence, of examining what the individual has done as a person and the impact of that behaviour on public perception. According to the respondent, conduct must be evaluated based one's position, or public standing in the community, rather than where the conduct takes place,² within or outside office functions.

     In this context, the respondent submits, the standard to be applied to the decision of the Governor in Council to remove the applicant from the VAB is whether that decision is rationally supported by the evidence and whether the process leading to that decision was fair. In the present case, the respondent submits the decision of the Governor in Council was supported by the evidence, and was reached in a manner that involved no procedural unfairness.

Analysis

     Having considered the submissions of both counsel for the applicant as well for the respondent raised in their written submissions and presented in oral arguments before me at the hearing, I have concluded that this application for judicial review must be dismissed for the reasons that follow.

i)      Procedural Fairness:

     In my view, there has been no breach of procedural fairness in the present case. The applicant was informed of the allegations against him and was given opportunities to respond to those. The essence of these allegations was outlined for the applicant in the May 2, 1994 letter of notification from Ms. Bloodworth. The basis for the allegations was more fully described in the investigation report, and the grounds for the action by the Governor in Council were set out in the final Report, and both those reports were provided to the applicant with opportunity to comment. The applicant was given full opportunity to respond to the allegations and to the comments in the two reports. He had the opportunity to do so orally at the meeting on June 9, and thereafter in writing in response to the investigation report and in writing in response to the final Report.

     While the applicant refers to alleged inadequacies and omissions in the Bloodworth-Whalen Report, in my view, there was opportunity for him to deal with any such deficiencies or short-comings by written submissions he made in response. Indeed, his written submissions do refer to some, at least, of the deficiencies perceived in fairly presenting the position of the applicant in relation to the allegations of wrongdoing on his part. Through these submissions, the applicant was able to respond to that Report by outlining his criticisms and concerns as he saw fit to do. Through his submissions, the applicant was able to place any concerns he had before the decision maker. These submissions were placed, along with the Report, before the Governor-in-Council. It is therefore not reasonable, in my view, to suggest that the applicant did not have a full and fair opportunity to present his comments to the Governor in Council prior to its decision.

     The applicant also argued he was denied procedural fairness in that he was not provided with an opportunity to cross-examine witnesses interviewed during the investigation by private investigators, nor was he given a proper opportunity to be heard at that stage of the proceedings. This argument, in my view, is simply not sustainable. While that investigation and the review conducted by Ms. Bloodworth and Ms. Whalen may have been significant steps in the process of considering the applicant's future as a member of the VAB, those steps did not constitute an adjudicative process to which the procedures normally associated with a criminal proceeding, such as cross-examination, should apply. Accordingly, the applicant was not entitled to cross-examine witnesses interviewed, or to a full, formal, court-like hearing of the matter. In my opinion, 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 at the June 1994 meeting, and twice thereafter in writing.

ii)      Improper Delegation:

     Moreover, in my view, the Governor in Council did not, as suggested by counsel for the applicant, breach standards of procedural fairness or natural justice by relying on the materials prepared by staff, such as the Bloodworth-Whalen Report. As noted by counsel for the applicant, procedural fairness is not to be applied in a vacuum, but rather its content determined by the context in which a particular decision is made.

     In the present case, the Governor in Council, after its review of the Bloodworth-Whalen Report and the submissions of the applicant in response, upon the recommendation of the Minister of Veterans Affairs, decided to terminate the applicant's appointment pursuant to s-s.4(4) of the Act. By so doing, the Governor in Council did not improperly delegate its decision-making authority to its subordinates. By its nature, the Governor in Council, a collective body of Ministers, is required to rely on the advice of staff and of individual Ministers to assist in reaching decisions on the wide range of issues for which it is responsible. The procedural propriety of such reliance on staff as a source of advice was recognized by the Supreme Court of Canada in Attorney General of Canada v. Inuit Tapirsat of Canada et al,³ in which Mr. Justice Estey stated as follows:

The very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council. The Executive Branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature.

     Accordingly, I find that in the circumstances, the Governor in Council committed no procedural error or improper delegation of authority by relying upon the submissions and advice of its staff in reaching its decision to terminate the appointment of the applicant to the VAB.

iii)      Standard of "Good Behaviour":

     I also reject the argument presented for the applicant, that the Governor in Council erred by applying the wrong standard of "good behaviour" in examining the conduct of the applicant, the basis of "cause" found for removing the applicant from office. In my view, the decision by the Governor in Council to terminate the applicant's appointment, on the basis that his behaviour was not consistent with "good behaviour", involved no reviewable error.

     While members of the VAB hold their office during "good behaviour", s-s.4(4) of the Act broadly authorizes the Governor in Council to remove a member of the VAB for "cause." This determination is a discretionary decision, reached by the Governor in Council, exercising the power delegated to it by Parliament. The Act contains no definition or standard for "cause" or for "good behaviour", however s-s.4(4) empowers the Governor in Council in its discretion to remove a member of the VAB at any time for cause.

     In my view, there is no evidence to suggest that the Governor in Council improperly exercised its discretion in the present case. In order to determine whether a holder of public office meets the standard of good behaviour necessary to remain in office, Cabinet, that is, the Governor in Council, must examine the conduct of that individual to assess whether it is consistent with the measure of integrity the Governor in Council deems necessary to maintain public confidence in federal institutions and the federal appointment process.

     In the present case, the decision by Cabinet to remove the applicant from the VAB was based on consideration of the submissions of the applicant and of the Bloodworth-Whalen Report. In light of this evidence, the Governor in Council determined the conduct of the applicant during the 1993 P.E.I. provincial election to be incompatible with the requirement of "good behaviour" upon which his appointment as a member of the VAB was based. There is no basis for the Court to intervene in regard to that decision unless it is clear that the Governor in Council acted upon a wrong principle or perversely, without regard to the evidence before it.

     The argument raised by counsel for the applicant, that Cabinet improperly applied a "judicial standard" of "good behaviour" to the applicant's conduct, in my view, is simply not sustainable. The issue to be determined by the Governor in Council was whether the applicant's conduct was consistent with the requirement of "good behaviour" pursuant to s.4 of the Act. As mentioned earlier, no standard or definition for "good behaviour" or "cause" is provided in the Act itself. Instead, the language of s.4(4) confers upon the Governor in Council a broad discretion to remove a member of the VAB "at any time for cause". Accordingly, in my view, in determining whether "cause" exists, the Governor in Council is entitled to assess whether the conduct of the applicant was consistent with the terms of his appointment to that office, including, in its judgment whether his conduct could undermine public confidence in the federal institution with which he had been appointed to serve.

     As an appointed member to a public office involving quasi-judicial functions, the applicant had been placed by the Governor in Council in a position of public trust and confidence. In order to maintain this position, the appointee is required to abide by the requirement of "good behaviour" and is subject to the proviso that, at any time, he or she may be removed by the Governor in Council for cause. In my view, given the position of trust and influence conferred upon appointees to federal office, including the Veterans Appeal Board, and their influence as representatives of that office on the public's perception, it is not for this Court to limit the scope of discretion vested by Parliament in the Governor in Council. In my view, whether in a given case it is appropriate to assess the conduct of appointees only with regard to activities which transpire in the discharge of functions of an office is a matter within the discretion of the Governor in Council. In the present case, it was open to the Governor in Council to consider off-duty activities of the applicant, other than those directly involving his work, and public perceptions of those, in determining whether his conduct was consistent with the "good behaviour" required of that position. As stated by my colleague Mr. Justice Rouleau in Attorney General v. Rene Cormier⁴:

As the holder of a public office, [the applicant] has the responsibility to act in a manner consistent with the terms of his appointment. His behaviour, either in his professional or personal life, does have consequences on how the public perceives him.

Conclusion

     On the basis of the reasons stated above, the application for judicial review is dismissed. An order to that effect now issues.

________________________________________

JUDGE

OTTAWA, Ontario

June 23, 1997.

__________________

^1.      The applicant was first appointed to the VAB on November 6, 1989 for a term of three years.

^2.      On this point, the respondent relies on Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 in which La Forest J., dealt with the propriety of examining the "off-duty" conduct of a teacher in determining whether termination of his employment was appropriate in the circumstances. In that case, after referring to the position of public trust and influence held by teachers, and the importance of their role in supporting "public confidence in the public school system as a whole", La Forest J. stated at 857:
         "By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond."

^3.      [1980] 2 S.C.R. 735">[1980] 2 S.C.R. 735 at 753.

^4.      (1995), 102 F.T.R. 291 at 294.