[2017] 4 F.C.R. D-3
Public Service
Termination of Employment
Judicial review of decision by Governor in Council (GIC) terminating appointment of applicant as Canadian Radio-television and Telecommunications Commission (CRTC) Commissioner for cause by way of Order in Council P.C. 2016-651 — Applicant initially appointed for five-year term — Maintaining difficult relationship with CRTC, including harassment complaint filed against him, challenging Chairperson’s authority through courts, using social media to criticize CRTC — Minister of Canadian Heritage and Official Languages advising applicant in letter of concerns about applicant’s capacity to serve as Commissioner — Recommending applicant’s termination as Commissioner — Federal Court subsequently concluding that investigation of harassment investigator exceeding scope of mandate, conducted with closed mind — Chairperson’s decision to accept harassment report, measures recommended therein set aside — Main issue whether GIC violating duty of procedural fairness owed to applicant — Duty of procedural fairness applying to GIC’s decision — What was content of duty of fairness imposed on GIC in this case? — Was that duty met by affording applicant applicable procedural protections or safeguards? — Factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 suggesting lower level of procedural fairness herein — Based on review of prior relevant removal decisions, duty of fairness owed to applicant herein comprised of: (1) notice to extent applicant informed of basis of Minister’s concerns, fact appointment potentially at risk; (2) opportunity to meaningfully respond, present case fully, fairly; (3) to receive fair, impartial decision — Applicant afforded more than adequate notice of allegations against him by way of Minister’s letter — Applicant afforded personalized inquiry — Procedural fairness in present case not necessarily requiring that third party report be generated, submitted to GIC — In absence of any legislated requirements in Canadian Radio-television and Telecommunications Commission Act, R.S.C., 1985, c. C-22 or otherwise, open to GIC to determine its own process — Clear that Minister not required to refer matter to inquiry — Applicant, in response to Minister’s letter, not requesting or expressing need for formal hearing — That said, if Minister of opinion that matters raised by applicant in his response not warranting meeting, duty of procedural fairness requiring Minister to advise applicant of this, explain why such conclusion reached — Significant consequences arising from GIC’s decision to proceed because, subsequent to decision to remove applicant from appointment, Federal Court quashed Chairperson’s decision concerning alleged harassment on basis of flawed harassment report — Not discernable from record to what extent GIC relied on flawed harassment report — Not possible to determine whether applicant was afforded fair hearing, procedural fairness — Applicant potentially denied procedural fairness — Matter returned to GIC for reconsideration — Application allowed.
Shoan v. Canada (Attorney General) (T-1053-16, 2017 FC 426, Strickland J., judgment dated April 28, 2017, 92 pp.)