Date: 20080109
Docket: A-221-07
Citation: 2008
FCA 1
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Appellant
and
JEAN
PELLETIER
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
Immediately
after the decision of Justice Simon Noël setting aside the Order-in-Council terminating
Mr. Pelletier, formerly the Chairman of the Board of Directors of VIA Rail
Canada Inc. (VIA Rail), the government of the day set in motion a process
leading to a second Order-in-Council terminating Mr. Pelletier (the second
termination order). This appeal deals with the validity of the second
termination order.
[2]
Mr.
Pelletier argued in his application for judicial review that the second
termination order was invalid because it was illegal. The appropriate Minister
should have consulted the Board of Directors of VIA Rail before making his
decision, and the comments of the appropriate Minister in the House of Commons
raised a reasonable apprehension of bias. Mr. Justice Lemieux of the Federal
Court agreed with the arguments of Mr. Pelletier and set aside the second
termination order (2007 FC 342).
Facts
[3]
A
short summary of the relevant facts is as follows.
[4]
On
July 31, 2001, Mr. Pelletier was appointed by Order-in-Council to the
position of Chairman of the Board of Directors of VIA Rail to hold office
during pleasure for a term of five years. This appointment was made pursuant to
subsection 105(6) of the Financial Administration Act, R.S.C. 1985, c.
F-11 (the FAA), after consultation with the Board of Directors. Mr. Pelletier’s
remuneration was set out in an annex to the Order that was not in the record
before us. (A.B. vol. 1, page 681).
[5]
On
March 1, 2004, Mr. Pelletier was terminated from his position. He made an
application for judicial review, seeking to set aside what can be referred to
as the first termination order.
[6]
On
November 18, 2005, Mr. Justice Simon Noël of the Federal Court set aside the
first termination order and referred the case back to the Governor General in
Council (2005 FC 1545). He held that procedural fairness required that the
Cabinet inform Mr. Pelletier of their reasons for the termination and that they
allow him the opportunity to be heard: requirements that were not met.
[7]
On
November 21, 2005, the appropriate Minister (the Minister of Transport, the
Honourable Jean Lapierre) informed Mr. Pelletier by letter that the nature and
character of Mr. Pelletier’s comments on February 26, 2004 regarding Ms. Myriam
Bédard [TRANSLATION] “lead me to believe that there are grounds for me to
recommend to the Governor in Council that your appointment be terminated for
loss of confidence in you…”. The Minister invited Mr. Pelletier to provide
written reasons as to why he should not be terminated.
[8]
Later
that same day (November 21, 2005), the Minister stated the following during
Question Period in the House of Commons:
Mr. James
Moore (Port Moody—Westwood—Port Coquitlam, CPC): Mr. Speaker,
although the reasons for doing so are obvious, the Prime Minister is incapable
of properly dismissing the key figures in the sponsorship scandal whom Justice
Gomery has clearly fingered in his report. The Prime Minister had promised to
clean house, yet we find him not even able to just dismiss Mr. Pelletier.
Will the
Prime Minister force Jean Pelletier to step down from his duties at the head of
VIA Rail, yes or no?
Hon. Jean
Lapierre (Minister of Transport, Lib.): Mr. Speaker, the
grounds on which Mr. Pelletier was dismissed in March 2004 are as valid as
ever. That is why this morning I have initiated a process which will allow Mr.
Pelletier to be heard and to provide us with reasons why he ought not to be
dismissed on those grounds.
Obviously,
Mr. Pelletier no longer has our confidence to chair the board at VIA Rail. (Emphasis
added)
[9]
On
November 30, 2005, Mr. Pelletier provided his reasons to the Minister and
requested a hearing with the Minister.
[10]
On
December 1, 2005, the Minister met with Mr. Pelletier. The Honourable Lucienne
Robillard, Minister of Intergovernmental Affairs and President of the Queen’s
Privy Council was also in attendance. During the hearing, the Minister informed
Mr. Pelletier that he would make a decision in a reasonable period of time,
after considering the matter with a clear head.
[11]
That
same day, December 1, 2005, Parliament was dissolved by royal proclamation
following a non-confidence vote.
[12]
On
December 19, 2005, the Attorney General of Canada filed a notice of appeal of
the decision of Justice Simon Noël.
[13]
On
December 22, 2005, the second termination order was adopted by the Governor
General in Council on the recommendation of Minister Lapierre, without
consultation of the Board of Directors of VIA Rail.
[14]
On
January 11, 2007, our Court upheld the decision of Justice Simon Noël regarding
the first termination order (2007 FCA 6) (Pelletier no. 1).
[15]
On
January 16, 2006, Mr. Pelletier filed an application for judicial review seeking
to have the second termination order set aside.
[16]
On
March 30, 2007, Justice Lemieux set aside the second termination order.
[17]
This
leads us to the present appeal brought by the Attorney General of Canada.
Analysis
Existence of a constitutional
convention
[18]
I
deal first with an argument put forward late in the process by the respondent
that a transition of government constitutional convention exists, whereby a
government that has lost the confidence of Parliament cannot nominate or
terminate the presidents of Crown corporations. According to the respondent this
argument was advanced not so that this Court quashes the second termination
order because of a violation of the constitutional convention, but rather
because a violation is further evidence of the government’s bias.
[19]
This
argument has no merit. As a general rule, and it is a well-known rule, Courts
will avoid making pronouncements on the existence of constitutional
conventions, which are not rules of law that are subject to judicial
enforcement (see Re: Resolution to amend the Constitution, [1981] 1
S.C.R. 753 at pages 880, 882; Reference re Secession of Quebec, [1998] 2
S.C.R. 217 at para. 26, 98, 99).
[20]
Furthermore,
the evidence does not establish the existence or scope of the alleged
convention: what is required is not only the proof of precedents, but also
proof that the political actors themselves believe that there is a rule they are
obliged to respect (Re: Resolution to amend the Constitution, supra
at page 888; Re: Objection to a resolution to amend the Constitution,
[1982] 2 S.C.R. 193 at pages 814, 816, 817 and 818).
[21]
In
any event, because the constitutional convention argued by the respondent would
have an effect on the validity of the second termination order, the respondent
was required, as set out in section 57 of the Federal Courts Act, to
file a Notice of Constitutional question and to serve that Notice on the
Attorneys General of Canada and the provinces, which he did not do.
Obligation to consult
the Board of Directors
[22]
VIA
Rail is a parent Crown corporation within the meaning of subsection 83(1) of
the FAA in that it is “wholly owned directly by the Crown”. It is included with
the corporations listed in part 1 of schedule III. It was created by an
Order-in-Council on April 1, 1978 (P.C. 1978-954).
[23]
Subsection
105(5) of the FAA provides that:
Appointment
of officer-directors
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.
|
Nomination
des administrateurs-dirigeants
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.
|
[24]
Subsection
105(6) of the FAA requires the appropriate Minister to consult the Board of
Directors of a parent Crown corporation before appointing officer-directors:
105. (6) Before an
officer director of a parent Crown corporation is appointed, the appropriate
Minister shall consult the board of directors of the corporation with respect
to the appointment.
|
105. (6) Le ministre
de tutelle consulte le conseil d’administration d’une société d’État mère
avant que ses administrateurs dirigeants ne soient nommés.
|
[25]
Subsection
24(1) of the Interpretation Act (R.S.C., 1985, ch. I-21) prescribes that
the power to name a public officer during pleasure, includes the power of
termination
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)
reappoint or reinstate the public officer; and
(c) appoint
another person in the stead of, or to act in the stead of, the public officer.
|
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.
|
[26]
Justice
Lemieux interpreted the combined effect of subsection 24(1) of the Interpretation
Act and subsection 105(6) of the FAA to be that the obligation to
consult the Board of Directors before appointment included the obligation to
consult them again before termination.
[27]
The
proper method of statutory interpretation (stated by the Supreme Court of
Canada in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at paras.
10 and 11 that statutes “must be interpreted in a textual, contextual and
purposive way”) leads me to conclude that the Applications Judge imported words
into subsections 24(1) of the Interpretation Act, and 105(6) of the FAA
that are not in accordance with the text and purpose of the provisions.
[28]
The
texts of the provisions are clear and unambiguous. The power of
appointment is defined in subsection 105(5) of the FAA, which is the power
referred to in subsection 24(1) of the Interpretation Act. Subsection
105(6) imposes an obligation to consult in the exercise of the power of
appointment. No such obligation is imposed on the power to terminate
established under paragraph 24(1)(a) of the Interpretation Act.
[29]
The
legislative context is also significant. In the very Act (the FAA) in which
subsection 105(6) is found, when Parliament intended to create an obligation to
consult before termination, it expressly stated as much. Specifically,
subsection 134(1) regarding auditors and subsection 142(2) regarding special
examiners provide that:
134.
(1) Subject to subsection (2), the auditor of a Crown corporation shall be
appointed annually by the Governor in Council, after the appropriate Minister
has consulted the board of directors of the corporation, and may be
removed at any time by the Governor in Council, after the appropriate
Minister has consulted the board.
142.
(2) Where, in the opinion of the Governor in Council, a person other than the
auditor of a Crown corporation should carry out a special examination, the
Governor in Council may, after the appropriate Minister has consulted the
board of directors of the corporation, appoint an auditor who is qualified
for the purpose to carry out the examination in lieu of the auditor of the
corporation and may, after the appropriate Minister has consulted the
board, remove that qualified auditor at any time.
(my
emphasis)
|
134.
(1) Sous réserve du paragraphe (2), le vérificateur d’une société d’État est
nommé chaque année par le gouverneur en conseil après consultation par le
ministre de tutelle du conseil d’administration de la société; le
gouverneur en conseil peut le révoquer en tout temps, après consultation du
conseil d’administration par le ministre de tutelle.
142.
(2) Le gouverneur en conseil, s’il estime contre-indiqué de voir confier
l’examen spécial au vérificateur de la société d’État, peut, après
consultation du conseil d’administration de la société par le ministre de
tutelle, en charger un autre vérificateur remplissant les conditions
requises; il peut également révoquer ce dernier en tout temps, après
pareille consultation.
(mon
soulignement)
|
[30]
In
other statutes when Parliament sought to create an obligation to consult or
seek recommendations for both appointments and terminations, it stated so
explicitly. See for example subsection 16(2) of the National Film Act (R.S.C.,
1985, c. N-8) regarding the Government Film Commissioner, and subsection
165.21(2) of the National Defence Act (R.S.C., 1985, c. N-5) regarding military
judges.
[31]
The
absence of an obligation to consult at the time of termination is also readily
explainable in the present context. At the time of appointment, the candidate
has the confidence of the government. Parliament intended that the Board of
Directors be consulted in the appointment process in order to avoid situations
of serious conflict materialising once the Chairman began his work. At the time
of termination, the person concerned, regardless of the opinion of the Board of
Directors, no longer enjoys the confidence of the government, making a
consultation with the Board of Directors pointless. It would also be a strange
interpretation of the provision (in the absence of clear wording to the
contrary) that the Chairman, who is a member of the Board of Directors, would
be consulted regarding his own termination.
[32]
It
is also worth noting that Parliament did not intend the appointment of all officer-directors
of parent Crown corporations to be open to termination at the will of the
government. For example, the Chairperson of the Canadian Broadcasting
Corporation (Broadcasting Act, S.C. 1991, c. 11 subsection 36(3)), the
Governor of the Bank of Canada (Bank of Canada Act ( R.S.C., 1985, c.
B-2 subsection 6(3)), and the President of the Business Development Bank of
Canada, (Business Development Bank of Canada Act ( S.C. 1995, c. 28 subsection
6(2)), are appointed to hold office during good behaviour (see Vennat v.
Canada, 2006 FC 1008). If Parliament had intended an appointment other than
during pleasure, the position of Chairman of VIA Rail could have been changed
to the same good behaviour standard held, for example, by the President of
Business Development Bank of Canada.
[33]
Imposing
an obligation to consult at the time of termination of a person appointed
during pleasure in the absence of clear wording, even if only symbolic, would change
the very nature of their appointment i.e. their intrinsically precarious status.
[34]
Justice
Lemieux relied on a short passage from a text by Louis-Philippe Pigeon entitled
Rédaction et interprétation des lois, 3e édition, Publications du
Québec, 1988, at paragraphs 27 and 28, which was cited by the Québec Superior
Court in Gill v. Québec (Ministre de la justice) [1995] R.J.Q. 2690 (Sup.
Ct.) (Gill),
and Commission scolaire de Montréal v. Québec (Procureur général),
[1999] R.J.Q. 2978 (Sup. Ct.) (Commission scolaire):
Consequently, if removal from office is
not to be subject to a rule different from that of appointment, there is no
need to speak of this.
[35]
I
am not convinced that Mr. Pigeon intended to say anything other than: unless
there are words to the contrary, he who has the authority to appoint also has
the authority to terminate. In any event, he was dealing with section 55 of
Québec’s Interpretation Act, a provision that is much more general in
scope than subsection 24(1) of the Federal Interpretation Act, which
deals specifically with appointments of public officers during pleasure.
[36]
Regarding
the two Québec authorities relied on by the Applications Judge, neither
concerns a person appointed during pleasure. Gill was based on
considerations related to judicial independence, and Commission scolaire
was based on an interpretation of Québec’s Education Act.
[37]
I
therefore conclude that the appropriate Minister did not have an obligation to
consult the Board of Directors of VIA Rail before terminating Mr. Pelletier.
Procedural Fairness
[38]
Justice
Lemieux, at paragraph 33 of his reasons, wrote that our Court in Pelletier no.
1,
“…confirmed that given
that Mr. Pelletier’s appointment had been revoked for misconduct, the
highest standard of procedural fairness applied” (my
emphasis)
[39]
He
confirmed this view at paragraph 51 of his decision, where he wrote:
“…the removal of Mr.
Pelletier was not a removal without cause, but rather a removal justified by
his misconduct, justifying the application of the strictest standard of
procedural fairness, as stated by the Federal Court of Appeal.” (my
emphasis)
[40]
With
respect, the Applications Judge has misinterpreted the decision of our Court in
Pelletier no. 1. The Attorney General had conceded that a certain degree of
procedural fairness was applicable and that a “higher standard” of procedural
fairness was applicable when the reason for removal was misconduct. The
Attorney General, however, argued that even this higher standard of procedural
fairness did not require an explicit notice of the reasons for the government’s
dissatisfaction with Mr. Pelletier. He argued it was sufficient that Mr.
Pelletier knew or ought to have known that his appointment was at risk (see
paragraph 30 of the reasons of Pelletier J.A.).
[41]
The
heart of the debate in Pelletier no. 1, therefore, was the determination of the
content of that “higher standard of procedural fairness”. The Court, at
paragraph 39, held that “[P]rocedural fairness requires actual knowledge of the
pending threat and of the reasons for it; constructive knowledge will not do”.
The Court concluded, thus confirming the decision of Justice Simon Noël, that
the evidence established that Mr. Pelletier did not have “actual knowledge” of
the threat he faced.
[42]
Pelletier
J.A. stated this conclusion at paragraph 49 of his decision:
“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.” (my
emphasis)
[43]
In
the circumstances, the Order-in-Council was set aside because Mr. Pelletier was
not informed of the possibility of removal and of the allegations of misconduct
being asserted against him, and he was not offered an opportunity to be heard.
Contrary to the conclusion of Justice Lemieux, it was not a question of
applying the “highest standard of procedural fairness”. Because he was removed
for misconduct, Mr. Pelletier had the right to be informed, and the right to be
heard, no more, no less.
[44]
It
is helpful here to restate that when removing a person appointed during
pleasure for whatever reason, the government’s termination decision does not require
“the necessity to show just cause” (Knight v. Indian Head School Division
No. 19, [1990] 1 S.C.R. 653 at page 674 (Knight), cited by Pelletier
J.A. at paragraph 34 of his reasons). Specifically, Pelletier J.A. noted that:
“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.”
[45]
In
the case at bar, this exact obligation was met by the appropriate Minister: he
informed Mr. Pelletier of his reasons and he gave him an opportunity to be
heard. The Minister met the procedural fairness requirements placed on him by
Justice Simon Noël (requirements later confirmed by our Court). On this basis,
the second termination order should, in principle, be found valid.
[46]
Mr.
Pelletier, nevertheless, maintains that the right to be heard implies that the
decision maker is not biased. And that the decision should be set aside if
there is proof of a reasonable apprehension of bias on the part of the decision
maker.
[47]
The
Attorney General, in response, argues that the proper standard is the lower
standard of a closed mind, rather than the more strenuous reasonable
apprehension of bias.
[48]
The
termination of a person appointed by the Cabinet during pleasure is essentially
a political and discretionary administrative decision. The fact that it is subject
to a certain standard of procedural fairness, and that the standard is higher
because the reason alleged is misconduct, does not in anyway change the nature
of the decision. The decision does not, in either form or substance, resemble a
judicial or quasi-judicial decision.
[49]
In
a series of decisions, the most recent being Imperial Oil Ltd. v. Quebec
(Minister of the Environment), [2003] 2 S.C.R. 624 (Imperial Oil Ltd.),
the Supreme Court of Canada has clearly established that the content of the duty
of impartiality varies according to the functions of the administrative
decision maker, and the question being decided. The content varies between
those of the judiciary and administrative tribunals whose adjudicative
functions are very similar to those of the judiciary (attracting the highest
standard of reasonable apprehension of bias) and those of administrative
decision makers such as ministers or officials who perform policy making
discretionary functions (attracting the lower standard of closed mind).
[50]
At
paragraph 31 of Imperial Oil Ltd., supra, LeBel J. summarises the
law on this point:
The appellant’s
reasoning thus treats the Minister, for all intents and purposes, like a member
of the judiciary, whose personal interest in a case would make him apparently
biased in the eyes of an objective and properly informed third party. This line
of argument overlooks the contextual nature of the content of the duty of
impartiality which, like that of all of the rules of procedural fairness, may
vary in order to reflect the context of a decision maker’s activities and the
nature of its functions (Baker, supra, at para. 21; Knight v.
Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per
L’Heureux Dubé J.; IWA v. Consolidated Bathurst Packaging Ltd., [1990] 1
S.C.R. 282, at pp. 323-24, per Gonthier J.; Newfoundland Telephone Co. v.
Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R.
623, at p. 636, per Cory J.). These variations in the actual content of the
principles of natural justice acknowledge the great diversity in the situations
of administrative decision makers and in the roles they play, as intended by
legislatures (Ocean Port Hotel Ltd. v. British Columbia (General Manager,
Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, at
para. 24, per McLachlin C.J.). The categories of administrative bodies
involved range from administrative tribunals whose adjudicative functions are
very similar to those of the courts, such as grievance arbitrators in labour
law, to bodies that perform multiple tasks and whose adjudicative functions are
merely one aspect of broad duties and powers that sometimes include regulation
making power. The notion of administrative decision maker also includes
administrative managers such as ministers or officials who perform policy
making discretionary functions within the apparatus of government. The extent
of the duties imposed on the administrative decision maker will then depend on
the nature of the functions to be performed and on the legislature’s intention.
In each case, the entire body of legislation that defines the functions of an
administrative decision maker, and the framework within which his or her
activities are carried on, will have to be carefully examined. The determination
of the actual content of the duties of procedural fairness that apply requires
such an analysis. (my
emphasis)
[51]
A
few years earlier in Newfoundland Telephone Co. v. Newfoundland (Board of
Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (Newfoundland
Telephone Co.), Cory J. explained why the standard of impartiality varied
with the circumstances:
28 Janisch
published a very apt and useful Case Comment on Nfld. Light & Power Co.
v. P.U.C. (Bd.) (1987), 25 Admin. L.R. 196. He observed that Public
Utilities Commissioners, unlike judges, do not have to apply abstract legal
principles to resolve disputes. As a result, no useful purpose would be served
by holding them to a standard of judicial neutrality…
29 Further, a
member of a board which performs a policy formation function should not be
susceptible to a charge of bias simply because of the expression of strong
opinions prior to the hearing. This does not of course mean that there are no
limits to the conduct of board members. It is simply a confirmation of the
principle that the courts must take a flexible approach to the problem so that
the standard which is applied varies with the role and function of the Board
which is being considered… (page
639)
[52]
In
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3
S.C.R. 1170 (Old St. Boniface), Sopinka J. explained the concepts of
“prejudice” or of having a “closed mind”:
In my opinion, the test
that is consistent with the functions of a municipal councillor and enables him
or her to carry out the political and legislative duties entrusted to the
councillor is one which requires that the objectors or supporters be heard by
members of Council who are capable of being persuaded. The Legislature
could not have intended to have a hearing before a body who has already made a
decision which is irreversible. The party alleging disqualifying bias must
establish that there is a prejudgment of the matter, in fact, to the extent
that any representations at variance with the view, which has been adopted,
would be futile. Statements by individual members of Council while they may
very well give rise to an appearance of bias will not satisfy the test unless
the court concludes that they are the expression of a final opinion on the
matter, which cannot be dislodged. (page 1197)
(my emphasis)
At page 1198, Sopinka J. concluded:
“It
was error, therefore, for the learned judge to apply the reasonable
apprehension of bias test”
[53]
Not
a single Supreme Court of Canada case with a situation remotely similar to ours
was brought to our attention.
[54]
In
Old St. Boniface, supra, at issue were municipal
councillors. In Knight, supra, at issue was a school board.
In Imperial Oil Ltd., supra, at issue was the
Québec Minister of the Environment acting under the powers conferred on him by
the Environment Quality Act and “the principles of procedural fairness
that apply to the situation … codified by the Act respecting Administrative
Justice, required only that he comply with the procedural obligations set
out in the law and that he carefully and attentively consider the
representations made by the person subject to the law he administers” (at para.
39). In Newfoundland Telephone Co., supra, at issue was a
member of the Board of Commissioners of Public Utilities, charged with
regulating the Newfoundland Telephone Company Ltd. In Wells v.
Newfoundland, [1999] 3 S.C.R. 199, another decision cited by the
respondent, at issue was the abolishment of the position of a senior public servant
appointed to hold office during good behaviour.
[55]
In
the case at bar, no legislation restrains the powers of the appropriate Minister.
What we have is a decision of cabinet, taken at the discretionary instigation
of a Minister, aimed at removing a person appointed during pleasure (a person
whose status is, by definition, precarious). This is, without question, a “policy
making discretionary” administrative decision (to use the words of LeBel J. in Imperial
Oil Ltd.), which attracts, at best, a standard of impartiality of a closed
mind. (see Cougar Aviation Ltd. v. Canada (Minister of
Public Works and Government Services), [2000] F.C.J. No. 1946
(FCA) at para. 36).
[56]
The
respondent argues vigorously for application of the distinction in Newfoundland
Telephone Co., supra, between the comments of a member of a
Commission before and during an inquiry, where the applicable standard is that
of a closed mind (see pages 17 and 20), and the comments, “[O]nce the order
directing the holding of the hearing was given”, where the applicable standard is
a reasonable apprehension of bias (see pages 19 and 20). At issue was a formal
inquiry followed by a formal hearing in a specific legislative context. As will
appear below, the process followed in our case cannot be in any way compared with
the process followed in Newfoundland Telephone Co., supra.
[57]
Justice
Lemieux therefore erred in law in applying the higher standard procedural
fairness of a reasonable apprehension of bias, instead of the lower standard of
a closed mind.
[58]
When
an error of law is made by an application of the wrong standard, the Court of
Appeal has an obligation to consider the facts afresh, apply the correct standard
and come to its own conclusion. I undertake this analysis in the paragraphs
below. (Dr. Q. v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226 at para 43).
The contents of the
closed mind test in the present context
[59]
The
decision making process in this case is very particular and turns aside from
the beaten track. We are here in the heart of the political sphere,
which is a sphere that courts, aside from the minimal procedural fairness
requirements described above, avoid interfering in.
[60]
At
issue in this case is a Cabinet decision. This decision, by its very nature, is
collective and the decision making process is secret. This raises a number of
questions. To whom do we apply the closed mind test? Cabinet? The appropriate
Minister? Where do we look for evidence to prove or disprove the allegations? In
the present case, I accept that the appropriate Minister’s state of mind is the
most significant to consider, although this is not to say it is necessarily
determinate.
[61]
The
decision of the appropriate Minister is already made at the time the person concerned
is informed of it. However, the decision is not final and it must be approved
by Cabinet. In other words, the appropriate Minister has already formed an
opinion when he gives the person concerned the opportunity to be heard. A
Minister does not venture into a process to terminate someone unless he is
convinced that there is a basis for the termination.
[62]
The
hearing can be informal, as long as the person concerned is permitted to
attempt to change the mind of the Minister. The Minister, no matter how well
founded the explanations of the person concerned, is not required to change his
decision, or to explain why he refuses to change his decision. It is on this
basis that any comparison with Newfoundland Telephone Co., supra,
where there was an inquiry, a notice of hearing and a formal hearing, is distinguishable.
Application of the
closed mind test to the facts of this case
[63]
The
appropriate Minister decided to recommend to Cabinet the termination of Mr.
Pelletier. His mind was made up; however he retained the opportunity to change
his mind once he had heard the submissions of Mr. Pelletier. Consequently, when
he said in the House of Commons on November 21, 2005 that “the grounds on which
Mr. Pelletier was dismissed in March 2004 are as valid as ever” and that, “[O]bviously,
Mr. Pelletier no longer has our confidence to chair the board at VIA Rail”, he
did nothing more than describe the situation as it stood at that time. The test
for a “closed mind” is not applicable at this early stage of the process. I
would also add that the context of those comments should be considered and inordinate
weight should not be given to impromptu responses from a Minister in the heat
of Question Period.
[64]
The
hearing is the proper moment to apply the closed mind test to the Minister. The
transcription of the hearing reveals that the Minister excused himself for some
of his earlier statements, asked questions about the incidents leading to the
first termination of Mr. Pelletier, and promised to consider the matter with a clear
head before making a decision. The following extract is significant:
[TRANSLATION]
MS. SUZANNE COTE:
I have a
question for you. After how long of a delay can we hope to receive news
further to this hearing?
THE HONOURABLE JEAN-C. LAPIERRE:
I don’t know;
I will have to reflect on everything I have heard. I would imagine after a
reasonable delay.
MS. SUZANNE COTE:
And for you,
a reasonable delay, can … for certain people, it can be a few days, for other
people it can be a few weeks.
THE HONOURABLE JEAN-C. LAPIERRE:
It is
because… Listen… I have to do this with a clear head; I have to consider the
whole question.
(A.B. vol. 3 p. 363)
[65]
I
do not see how, in the circumstances, it is possible to conclude that the
Minister had a closed mind. I note, moreover, that it was the respondent himself
who pressed the Minister to render the decision in the shortest time possible.
I also note, and this is not an irrelevant consideration because
ultimately this was a Cabinet decision, that Minister Lucienne Robillard also
participated in the hearing and that no allegations have been made suggesting
that she had a closed mind.
Disposition
[66]
For
the reasons given above, I would allow the appeal, set
aside the judgment of the Federal Court, dismiss the application for judicial
review filed by the respondent and restore the validity of the December 22,
2005 Order-in-Council terminating the appointment of Mr. Pelletier.
[67]
I
would award costs to the appellant in this Court and in the Court below.
“Robert Décary”
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
Marc Noël J.A.”
Translation