ADMINISTRATIVE LAW |
Judicial Review |
Fetherston v. Canada (Food Inspection Agency)
T-2264-01
2003 FC 827, Gibson J.
4/7/03
18 pp.
Institutional bias--Application for judicial review of Canadian Food Inspection Agency (CFIA) officer's decision cancelling authority of applicant to perform duties, functions as accredited veterinarian until new accreditation obtained--Applicant had issued Equine Infectious Anaemia (Coggins) Certificate for seven horses, having inspected only six of them--Applicant arguing oversight when signed certificates following day--Issues reasonable apprehension of bias, whether breach of natural justice, whether reasons so flawed as to give rise to reasonable error--Application allowed--Dr. Clark, who determined to suspend applicant, instituted process leading to hearing and decision under review and effectively presented CFIA's case at hearing, and Adjudicator, both employees of CFIA--In effect, Dr. Clark appointed own boss to be Adjudicator--In MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.), Court found reasonable apprehension of bias in functioning of Commission: CHRC, after deciding complaint substantiated, chose part-time judge to form CHRT panel to hear complaint at which CHRC would take position its earlier decision correct, concluding such scheme represented after-the-fact justification for decision already made by it and before judges of its own choosing--Conclusion in MacBain applying precisely herein--Submission applicant raised issue of bias too late rejected as applicant and counsel went into hearing with no knowledge of who Adjudicator would be and certainly with no knowledge or reason to believe Adjudicator would be officer from within CFIA in direct reporting relationship to Dr. Clark--While Court making no finding as to breach of natural justice, respondent urged to reconsider its processes: absence of even rudimentary structure in relation to hearing, no record, no list of exhibits maintained, no particular opportunity provided to applicant, counsel to question, cross-examine investigator on conclusions--Finally, no evidence to suggest dearth of independent third parties capable of conducting hearings such as that giving rise to decision under review, instead of Adjudicator from within CFIA--Obiter: As to adequacy of reasons--Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.) providing guidance as to adequacy of reasons where credibility involved--If required to do so, Court would find reasons under review so deficient as to result in reviewable error.