Judgments

[1996] 3 F.C. 259

T-154-96, T-156-96, T-157-96, T-158-96, T-159-96,

T-160-96, T-161-96, T-163-96, T-164-96, T-165-96,

T-166-96, T-167-96, T-168-96, T-169-96, T-177-96

* The Attorney General of Canada, Dr. Albert Joseph Liston, Dr. Alastair James Clayton, Dr. Norbert Gilmore, Dr. Denise Leclerc, Jake Epp, Dr. Gordon A. Jessamine, Dr. Wark Boucher, Dr. David Pope, Monique Bégin, Dr. John Furesz, Dr. Maureen M. Law, David Kirkwood, Dr. Denys Cook, Dr. Emmanuel Somers, Dr. J.W. Davies, Bruce Rawson, J.L. Fry, and Dr. A.B. Morrison, Bayer Inc., Craig A. Anhorn, The Canadian Red Cross Society, George Weber, Dr. Roger A. Perrault, Dr. Martin G. Davey, Dr. Elizabeth Ross, Dr. Morris A. Blajchman, Dr. Terry Stout, Dr. Joseph Ernest Come Rousseau, Dr. Noel Adams Buskard, Dr. Raymond M. Guevin, Dr. John Sinclair MacKay, Dr. Max Gorelick, Dr. Roslyn Herst, and Dr. Andrew Kaegi, Armour Pharmaceutical Company and Rhône-Poulenc Rorer Inc., Connaught Laboratories Limited, Baxter Corporation, Le Procureur Général du Québec, et l’Honorable Camille Laurin, The Honourable Dennis Timbrell, The Honourable Larry Grossman, The Honourable Keith Norton, The Honourable Alan Pope, The Honourable Murray Elston, The Honourable Philip Andrewes and The Honourable Elinor Caplan, Le Procureur Général du Québec et l’Honorable Thérèse Lavoie-Roux, Le Procureur Général du Québec et l’Honorable Pierre-Marc Johnson, Le Procureur Général du Québec et l’Honorable Marc-Yvan Côté, Le Procureur Général du Québec, Le Procureur Général du Québec et l’Honorable Guy Chevrette, Her Majesty the Queen in Right of British Columbia, Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Newfounland, Her Majesty the Queen in Right of the Yukon Territories, Her Majesty the Queen in Right of the Northwest Territories, The Honourable Stephen Rogers, The Honourable Jim Nielsen, The Honourable Peter Dueck, The Honourable John Jansen, The Honourable David Russell, The Honourable Marv Moore, The Honourable Nancy Betkowsky, The Honourable Larry Desjardins, The Honourable Donald Orchard, The Honourable Charles Gallager, The Honourable Nancy Clark Teed, The Honourable Raymond Frenette, The Honourable Gerald Sheehy, The Honourable Ronald Russell, The Honourable Joel Matheson, The Honourable Albert Fogarty, The Honourable Joseph Ghiz, The Honourable Keith Milligan, The Honourable Wayne Cheverie, The Honourable John Collins, and Denise Leclerc-Chevalier (Applicants)

v.

The Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada

and

Canadian Hemophilia Society, Canadian AIDS Society, HIV-T Group (Blood Transfused), Janet Conners (Infected Spouses and Children), Canadian Hemophiliacs Infected with HIV, Committee for HIV Affected and Transmitted, Association of Hemophilia Clinic Directors of Canada, Hepatitis C Survivors Society, Gignac, Sutts Group, Guy Henri-Godin and Jean-Daniel Couture, The Hepatitis C Group, The Toronto and Central Ontario Regional Hemophilia Society (Intervenors)

* EDITOR’S NOTE: The style of cause is the result of an order of joinder of proceedings and of the amalgamation of fifteen styles of cause established, in each case, by the applicant or applicants. The Judge herein has decided to abide strictly by the designation of the parties as originally established by them, in the language of their choice.

Indexed as: Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (T.D.)

Trial Division, Richard J.—Toronto, May 22, 23, 24, 27, 28, 29, 30 and 31, June 3 and 4; Ottawa, June 27, 1996.

Administrative law — Judicial review — Applications for judicial review of notices delivered under Inquiries Act, s. 13 after public hearings on contamination of blood system in Canada — Commissioner of Inquiry appointed by Order in Council to investigate all aspects of blood system — Whether Commissioner had jurisdiction to make findings of misconduct against governments, institutions, individuals named in notices — Commission of Inquiry advisory, investigatory body without judicial functions — Not concerned with criminal, civil liability — Doctrine of legitimate expectations not applicable — Commissioner not going beyond mandate — Applicants given full opportunity to be heard — Charter, s. 7, Canadian Bill of Rights, s. 2(e) inapplicable — Commissioner complying with Act, s. 13.

Health and Welfare — Commission of Inquiry appointed by Order in Council to probe contamination of blood system in Canada in early 1980s — Notices sent under Inquiries Act, s. 13 advising named governments, institutions, individuals of possible findings of misconduct — Whether Commissioner had jurisdiction to deliver notices — Mandate of Inquiry enabling Commissioner to uncover facts to explain to public contamination of blood system and to make recommendations for future safety of blood system — Commissioner not acting beyond mandate.

Evidence — Inquiry ordered by federal government to investigate contamination of blood system — Functions of Inquiry investigatory, advisory — Terms of reference of Commissioner to include all activities related to blood system in Canada — Inquiry not determining guilt, liability — Commissioner not to make conclusions of criminal, civil liability — Commission entitled to receive evidence otherwise inadmissible in court of law — Inquiries not governed by strict rules of evidence — Findings of Commissioner, content of notices not admissible in evidence at subsequent civil proceedings.

These were applications for judicial review of notices delivered under section 13 of the Inquiries Act at the conclusion of public hearings into the contamination of the blood system in Canada in the early 1980s. At that time, more than 1,000 Canadians became directly infected with HIV from blood and blood products, and approximately 12,000 others were infected with Hepatitis C from the same products. These infections brought into question the safety of Canada’s blood supply system. However, it was not until 1993 that the Government of Canada made the decision to call an inquiry. The Order in Council establishing the Commission of Inquiry directed the Commissioner to investigate and report on the events of the early 1980s and to examine and make recommendations concerning the current blood system. On December 21, 1995, Commission counsel delivered 45 notices under section 13 of the Inquiries Act advising the named governments, institutions and individuals that the Commissioner may make findings of misconduct against them and that they had the right to respond. The applicants’ position was that, after some two years of hearings, the Commissioner had no jurisdiction to make any of the possible findings of fact set forth in the notices or, in the event that he originally had such jurisdiction, he had lost it by virtue of either the assurances he had given or the procedures he had adopted. Two main issues were raised: 1) whether the Commissioner had the legal and constitutional jurisdiction to make the findings of misconduct contained in the notices, or whether he had lost jurisdiction by giving assurances that he would not make findings of the kind contained in the notices, and 2) whether the Commissioner had lost jurisdiction by non-compliance with sections 12 and 13 of the Inquiries Act and the requirements of natural justice and, with respect to individuals, section 7 of the Charter.

Held, the applications should be dismissed.

1) The Inquiries Act grants broad investigatory powers to enable the discovery of facts that are not readily accessible to the government or the general public. Such investigative powers are justified by the extreme social importance of having some vehicle of the government which is able to explain a tragic event to the public and to advise the government as to what solutions might be adopted to avoid the recurrence of similar tragedies. The Supreme Court of Canada has upheld many inquiries where the focus of the investigation was to uncover facts related to misconduct and in none of these cases did it question the jurisdiction of the inquiry to make findings of fact showing misconduct. The Inquiry is both an advisory and an investigatory body. It does not exercise judicial functions, does not determine rights or obligations and does not adjudicate a lis inter partes. It is not a branch of the judiciary and is not a court or quasi-judicial administrative tribunal. The Inquiry is independent of the government which appointed it. The functions of the Inquiry herein were both investigatory and advisory or recommendatory and the terms of reference of the Commissioner had been broadly drafted to include all activities related to the blood system in Canada. It was essential for the fulfilment of his mandate that the Commissioner be able to uncover facts to explain to the public the contamination of the blood system and, on the basis of those facts, to make recommendations for the future safety of the blood system. The doctrine of legitimate expectations does not create substantive rights. It is part of the rules of procedural fairness which govern administrative bodies. Where it is applicable, it can only create a right to make representations or to be consulted. The applicants sought to use the doctrine of legitimate expectations not to obtain procedural fairness, but to alter the substantive jurisdiction or otherwise to fetter the decision of the administrative body. That doctrine has no application in law or in fact in this case. The applicants had put forward no evidence that they are accused or suspected in any criminal proceedings or that they will be exposed to some prejudice in civil proceedings. There is no legal authority for the proposition that the findings of the Commissioner, much less the content of the notices, would be admissible in evidence at subsequent civil proceedings to determine any issue before that court. The distinction between an inquiry and a court is that an inquiry does not determine guilt or liability. The individual applicants feared that the charges of misconduct alleged in the notices, if adopted by the Commissioner, had the potential to devastate their reputations and careers. They challenged potential, not actual findings. It was pure speculation on their part at that stage. The Commissioner has undertaken to give the recipients of notices a full opportunity to be heard including all the necessary procedural safeguards. He has also undertaken not to make any conclusions of law or any findings of liability, civil or criminal. In issuing these notices, the Commissioner has not gone beyond his mandate or crossed the line to conduct an investigation of the commission of particular crimes. He has only given statutory notice to different persons of the charges of misconduct alleged against them.

2) Under the Rules of Procedure and Practice governing the proceedings of the Inquiry, the Commission was entitled to receive evidence which might otherwise be inadmissible in a court of law. The strict rules of evidence would not apply to determine the admissibility of evidence. The issuance of the notices did not engage a specifically identified interest under section 7 of the Charter, which applies only to natural persons and not to corporations or governments. Reputation or protection from stigma are not independent constitutionally protected rights; security of the person does not encompass mere reputation. Accordingly, any interests of the applicants in relation to the issuance of the notices was not within the scope of section 7 of the Charter because it could not be said to engage or deprive their rights to “security of the person”. The Inquiry has fulfilled the duty of procedural fairness to which it was subject, and the applicants could not be heard to say that the issuance of the notices did not accord with the principles of fundamental justice. Paragraph 2(e ) of the Canadian Bill of Rights has no application either because the Commissioner’s report did not determine any rights or obligations of the applicants. The principles of fundamental justice were also met with respect to the Canadian Bill of Rights. Sections 12 and 13 of the Inquiries Act codify certain elements of the common law duty of procedural fairness: the right to counsel and audi alteram partem. All of the applicants have had the right to counsel throughout the course of the Inquiry and they have been offered a full opportunity of being heard. Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The procedural rules of litigation do not apply to an inquiry. Inquiries are not governed by strict rules of evidence. Their broad public purpose is generally facilitated by relaxed rules regarding the admission of hearsay and other evidence that is not strictly admissible in judicial proceedings. The applicants who sought standing have had the benefit of all the necessary procedural protections throughout the Inquiry, even before the notices were issued. They have not been denied a right to a fair hearing by reason of Commission counsel receiving confidential submissions concerning the issuance and content of the notices. As to the timeliness of the notices, the Commissioner has literally complied with section 13 of the Inquiries Act which expressly provides that notice be given to any person of the charge of misconduct alleged against him before any unfavourable report is made. There was no evidence that the Commissioner acted in bad faith or for an ulterior purpose in deciding to deliver the notices at the conclusion of the public hearings. Finally, the objection raised by the Canadian Red Cross Society and the Attorney General for Canada to the participation of Commission counsel in the drafting of the final report was without merit. Commission counsel have not overstepped their appropriate role in the Inquiry process to date.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act respecting inquiries concerning Public Matters, S.C. 1868, c. 38.

An act to amend the Inquiries Act, S.C. 1912, c. 28.

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d), 13.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).

Food and Drugs Act, R.S.C., 1985, c, F-27.

Inquiries Act, R.S.C., 1985, c. I-11, ss. 2, 4, 5, 11, 12, 13.

Public Inquiries Act, R.S.O. 1990, c. P.41, s. 5(2).

Public Inquiries Act, R.S.P.E.I. 1988, c. P-31, s. 7.

CASES JUDICIALLY CONSIDERED

APPLIED:

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 141 N.S.R. (2d) 1; 124 D.L.R. (4th) 129; 403 A.P.R. 1; 98 C.C.C. (3d) 20; 39 C.R. (4th) 141; 28 C.R.R. (2d) 1; 180 N.R. 1.

CONSIDERED:

Starr v. Houlden, [1990] 1 S.C.R. 1366; (1990), 68 D.L.R. (4th) 641; 55 C.C.C. (3d) 472; 110 N.R. 81; 41 O.A.C. 161; Robinson et al. and The Queen in right of British Columbia et al. (1987), 36 D.L.R. (4th) 308; [1987] 3 W.W.R. 362; 28 B.C.L.R. (2d) 343; 33 C.C.C. (3d) 90 (C.A.); Re Nelles et al. and Grange et al. (1984), 46 O.R. (2d) 210; 9 D.L.R. (4th) 79; 42 C.P.C. 109; 3 O.A.C. 40 (C.A.); Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; Pulp, Paper and Woodworkers of Canada, Local 8 et al. v. Canada (Minister of Agriculture) et al. (1994), 174 N.R. 37 (F.C.A.); Richards v. New Brunswick (Commission of Inquiry into the Kingsclear Youth Training Centre), [1996] N.B.J. No. 272 (Q.B.) (QL); Hecla Mining Company of Canada v. Cominco Ltd. and Canada (Minister of Indian Affairs and Northern Development) (1988), 116 N.R. 44 (F.C.A.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353.

REFERRED TO:

Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (1993), 107 D.L.R. (4th) 424; 21 Imm. L.R. (2d) 221; 159 N.R. 210 (C.A.); Consortium Developments (Clearwater) Ltd. v. Sarnia (City) (1995), 23 O.R. (3d) 498; 81 O.A.C. 96 (Div. Ct.); O’Hara v. British Columbia, [1987] 2 S.C.R. 591; (1987), 45 D.L.R. (4th) 527; [1988] 1 W.W.R. 216; 19 B.C.L.R. (2d) 273; 38 C.C.C. (3d) 233; 80 N.R. 127; Attorney General (Que.) and Keable v. Attorney General (Can.) et al., [1979] 1 S.C.R. 218; (1978), 90 D.L.R. (3d) 161; 43 C.C.C. (2d) 49; 6 C.R. (3d) 145; 24 N.R. 1; Di Iorio et al. v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; (1976), 35 C.R.N.S. 57; 8 N.R. 361; Faber v. The Queen, [1976] 2 S.C.R. 9; (1975), 65 D.L.R. (3d) 423; 27 C.C.C. (2d) 171; 32 C.R.N.S. 3; 6 N.R. 1; Phillips et al. v. Richard J. (1993), 117 N.S.R. (2d) 218; 100 D.L.R. (4th) 79; 324 A.P.R. 218; 10 C.O.H.S.C. 43 (C.A.); United Steelworkers of America, Local 9332 v. Richard, [1993] 4 S.C.R. vii; (1993), 133 N.S.R. (2d) 80; 106 D.L.R. (4th) vii; 380 A.P.R. 80; 166 N.R. 77; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (1989), 61 D.L.R. (4th) 313; 8 Imm. L.R. (2d) 20; 95 N.R. 385 (C.A.); Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621 (1992), 6 Admin. L.R. (2d) 62; 16 Imm. L.R. (2d) 241; 136 N.R. 254 (C.A.); R. v. Kuldip, [1990] 3 S.C.R. 618; (1990), 61 C.C.C. (3d) 385; 1 C.R. (4th) 285; 1 C.R.R. (2d) 110; 114 N.R. 284; 43 O.A.C. 340; R. v. S. (R.J.), [1995] 1 S.C.R. 451; Landreville v. The Queen, [1977] 2 F.C. 726 (1977), 75 D.L.R. (3d) 380 (T.D.); R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205; Re The Ont. Crime Comm., ex p. Feeley, [1962] O.R. 872; (1962), 34 D.L.R. (2d) 451; 113 C.C.C. 116 (C.A.); Re The Children’s Aid Society of the County of York, [1934] O.W.N. 418 (C.A.); Re Public Inquiries Act and Shulman, [1967] 2 O.R. 375; (1967), 63 D.L.R. (2d) 578 (C.A.); Fraternité Inter-Provinciale des Ouvriers en Électricité v. Office de la Construction du Québec et al. (1983), 148 D.L.R. (3d) 626; [1983] C.A. 7 (Que. C.A.); Mahon v Air New Zealand Ltd, [1984] 3 All ER 201 (P.C.); Canada (Attorney General) v. Canada (Commissioner of Inquiry on the Blood Systems), [1996] 2 F.C. 668(T.D.); Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; (1987), 41 D.L.R. (4th) 429; 24 Admin. L.R. 91; 74 N.R. 33.

AUTHORS CITED

Alberta Law Reform Institute. Proposals for the Reform of the Public Inquiries Act, Report No. 62, Edmonton, Alberta, November 1992.

“Bad blood probe needed, Collins says”, The Globe and Mail , September 16, 1993.

Canada. Commission of Inquiry into the Use of Drugs and Banned Practices Intended to Increase Athletic Performance, Ottawa: Canadian Government Publishing Centre, 1990 (Commissioner: C. Dubin).

Canada. House of Commons. Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Tragedy and Challenge: Canada’s Blood System and HIV, May 1993 (Chair.: Stanley Wilbee).

Canada. Law Reform Commission. Administrative Law—Commissions of Inquiry: A New Act (Working Paper No. 17), Ottawa: Supply and Services Canada, 1977.

Canada. Law Reform Commission. Report 13: Advisory and Investigatory Commissions, December 1979.

Commission of Inquiry into Certain Events at the Prison for Women in Kingston, Ottawa, 1996 (Commissioner: L. Arbour).

Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario, 1992 (Commissioner: V. Mohansky).

Henderson, G. F. “Abuse of Power by Royal Commissions”, in Special Lectures of the Law Society of Upper Canada , Toronto: De Boo, 1979, at p. 493.

Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française (Le), Paris: Dictionnaires Le Robert, 1993.

Ontario Law Reform Commission. Report on Public Inquiries. Toronto: The Commission, 1992.

Shorter Oxford English Dictionary, 8th ed., Oxford: Clarendon Press, 1990.

Sopinka J. Public Inquiries. CIAJ Conference, Winnipeg, Manitoba, August 24, 1990.

APPLICATIONS for judicial review of notices delivered under section 13 of the Inquiries Act advising the applicants that the respondent may make findings of misconduct against them with respect to the contamination of the blood system in

COUNSEL:

Earl A. Cherniak, Q.C., Maureen B. Currie and Kirk F. Stevens, for applicants The Canadian Red Cross Society et al.

Stephen T. Goudge, Q.C., Richard P. Stephenson and Monica J. E. McCauley for applicant Connaught Laboratories Limited.

Philip Spencer, Q.C. and Tim Farrell for applicant Baxter Corporation.

Randal T. Hughes and Tracey N. Patel for applicant Bayer Inc.

William Thomas McGrenere, Q.C. for applicants Armour Pharmaceutical Company et al.

Douglas G. Garbig for applicant Craig Anhorn.

Michelle M. Smith for applicants the Honourable Dennis Timbrell et al.

William G. Craik for applicants Her Majesty the Queen in Right of Alberta et al.

Serge Kronström for applicants Procureur général du Québec et al.

Donald J. Rennie and Linda J. Wall for applicants Attorney General of Canada et al.

Paul S. A. Lamek, Q.C., Angus T. McKinnon, Michele J. Lawford and Melanie Sopinka for respondent.

Bonnie A. Tough and Kathryn M. E. Podrebarac for intervenor Canadian Hemophilia Society.

Kenneth Arenson for intervenor Committee for HIV Affected and Transmitted.

Dawna J. Ring for intervenor Janet Conners (Infected Spouses and Children).

William A. Selnes for intervenor Canadian Hemophiliacs Infected with HIV.

R. Douglas Elliott and Patricia A. M. Lefebour for intervenor Canadian AIDS Society.

Philip S. Tinkler for intervenor Hepatitis C Survivors Society.

Pierre R. Lavigne for intervenor The Hepatitis C Group.

Allan D. J. Dick and Lori A. Stoltz for intervenor HIV-T Group (Blood Transfused).

Michel Savonitto and Lyne Beauchamp for intervenors Guy-Henri Godin and Jean-Daniel Couture.

Mark Freiman and Julia Schatz for intervenor Association of Hemophilia Clinic Directors of Canada.

Paul C. Nesseth and Harvey T. Strosberg, Q.C. for intervenor Gignac, Sutts Group.

David G. Harvey for intervenor Toronto and Central Ontario Regional Hemophilia Society.

SOLICITORS:

Lerner & Associates, Toronto, for applicants The Canadian Red Cross Society et al.

A. N. West, Toronto, for applicant Connaught Laboratories Limited.

Blaney, McMurtry, Stapells, Friedman, Toronto, for applicant Baxter Corporation.

Fraser & Beatty, Toronto, for applicant Bayer Inc.

Lawson, McGrenere, Wesley, Rose & Clemenhagen, Toronto, for applicants Armour Pharmaceutical Company et al.

Roebuck, Garbig, Toronto, for applicant Craig Anhorn.

Ministry of the Attorney General, Toronto, for applicants the Honourable Dennis Timbrell et al.

Woloshyn Mattison, Saskatoon, Saskatchewan, for applicants Her Majesty the Queen in Right of Alberta et al.

Kronström, Desjardins, Ste-Foy, Quebec, for applicants Procureur général du Québec et al.

Deputy Attorney General of Canada, for applicants the Attorney General of Canada et al.

Genest, Murray, DesBrisay, Lamek, Toronto, for respondent.

Blake, Cassels & Graydon, Toronto, for intervenor Canadian Hemophilia Society.

Kenneth Arenson, Toronto, for intervenor Committee for HIV Affected and Transmitted.

Buchan, Derrick & Ring, Halifax, for intervenor Janet Conners (Infected Spouses and Children).

Kapoor, Selnes, Klimm & Brown, Melfort, Saskatchewan, for intervenor Canadian Hemophiliacs Infected with HIV.

Elliott, Rodrigues, Toronto, for intervenor Canadian AIDS Society.

Tinkler, Morris, Toronto, for intervenor Hepatitis C Survivors Society.

Pierre R. Lavigne, Ottawa, for intervenor The Hepatitis C Group.

Goodman and Carr, Toronto, for intervenor HIV-T Group (Blood Transfused).

Marchand, Magnan, Melançon, Forget, Montréal, for intervenors Guy-Henri Godin and Jean-Daniel Couture.

McCarthy Tétrault, Toronto, for intervenor Association of Hemophilia Clinic Directors of Canada.

Gignac, Sutts, Windsor, for intervenor Gignac, Sutts Group.

David G. Harvey, Burlington, Ontario, for intervenor Toronto and Central Ontario Regional Hemophilia Society.

The following are the reasons for order rendered in English by

Richard J.: A nation-wide public health calamity of alarming proportions emerged in Canada in the early 1980s. It posed a threat of contracting fatal illnesses to every resident of the country who might need blood, a blood component or a blood product.

On October 4, 1993, the Government of Canada appointed the Honourable Horace Krever to report on the events surrounding the contamination of the blood system in Canada in the early 1980s.

The Commission held public hearings throughout Canada between November 22, 1993 and December 21, 1995. An interim report was released on February 24, 1995. The final report is due on September 30, 1996.

On December 21, 1995, Commission counsel delivered, on a confidential basis, forty-five notices (the notices) under section 13 of the Inquiries Act[1] advising the named governments, institutions and individuals that the Commissioner may make findings that may amount to misconduct against the recipient and that they had the right to respond.

The applicants commenced these proceedings, alleging that after some two years of hearings the Commissioner had no jurisdiction to make any of the possible findings of fact set forth in the notices or, in the event that he originally had such jurisdiction, he had lost such jurisdiction by virtue of either the assurances he had given or the procedures which he had adopted. The Canadian Red Cross Society (CRCS) and the Baxter Corporation (Baxter) also allege that the Commissioner’s counsel adopted an adversarial approach during the course of the Inquiry and ought to be prevented from assisting the Commissioner in the preparation of his final report.

In order to properly analyze this case, it is essential to examine the political and practical realities out of which this Inquiry was born in order to determine the context which precipitated this Inquiry and its scope.[2]

1.         BACKGROUND

More than 1,000 Canadians became directly infected with HIV from blood and blood products in the early 1980s. An additional 10 to 20 of their spouses were infected with HIV and an unknown number of children were born HIV positive. Approximately 12,000 Canadians became infected with Hepatitis C from blood and blood products, which can also lead to death. These infections brought into question the safety of Canada’s blood supply system.

Ultimately a public outcry arose for answers as to how this tragedy had occurred and assurances that the necessary steps had been taken or were to be taken to prevent a reoccurrence of such an event. Testing was introduced for HIV in 1985. In 1989, the federal government initiated a compensation program. It was not until 1993 that the Government of Canada made the decision to call an inquiry.

On May 13, 1993, the Parliamentary Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women released the third report of the Sub-committee on health entitled Tragedy and Challenge: Canada’s Blood System and HIV (the Wilbee Report).

The Wilbee Report notes that:

Every single day in Canada a person requires a blood transfusion … one every 20 seconds. …[3]

and that:

The contamination of blood and blood products in Canada, and elsewhere, is truly a medical and social tragedy.[4]

The Sub-committee’s study of this issue developed along two lines of concern. First, those events and factors that led to the infection of more than 1,000 Canadians by HIV from contaminated blood and blood products during the 1980s. Second, whether the Canadian blood supply today is as safe as it can reasonably be made and, moreover, whether the system that is in place can respond effectively and with dispatch to any future crisis along the lines of the AIDS disaster of a decade ago.[5]

The Wilbee Report describes the Canadian blood system as an essential part of Canada’s health-care system. There are few individuals or families in this country that are not touched in some way by the ongoing requirement for blood and blood products of high quality and assured safety. Just as blood is a complex health resource requiring careful and intelligent management, the Canadian blood system itself is equally complex.

The Report notes that the Canadian blood system is strongly identified with the CRCS. The system includes a number of other players as well, each of whom has an essential role to play. In the early 1980s, when the AIDS epidemic was in its early stages, the Canadian blood system had three major stakeholders.

The CRCS, then as now, was the operational arm of the system. There were two major components of the CRCS system: Blood Donor Recruitment and the Blood Transfusion Service. The CRCS collection and distribution system is national in terms of organization and operation, and is carried out through regional centres which follow national procedures, guidelines and policies.

A second major player in the system in the early 1980s was the Canadian Blood Committee (CBC). The CBC was a federal-provincial committee made up of federal and provincial ministers of Health with a federal official as its executive director.[6]

The federal government, although not directly involved in the administrative or operational structure of the Canadian blood system, played a number of essential roles in the overall process. Blood products have been regulated under the Food and Drugs Act[7] since these products were first developed. The federal authority also regulates diagnostic and blood-screening test kits for ensuring blood safety.[8]

The Wilbee Report documented the hearings which the Sub-committee had conducted. These included hearing from twenty-nine witnesses representing the “major players” in the blood supply system and those who had been infected with HIV through contaminated blood. The Sub-committee concluded that despite its efforts it could not answer a number of central questions such as:

… whether antibody testing was instituted as quickly as it could have been, given the state of technology and expertise at the time; and whether the decision-making process within the blood system in Canada at the time caused, or contributed to, an avoidable delay in the instituting of testing.

Was the transition [to heat treated Factor VIII being a blood product used primarily by hemophiliacs] made as quickly as possible under the circumstances at the time? Was there an avoidable delay in decision-making in the blood system to make the switch from untreated to heat-treated coagulation products in the first place? Is it possible that financial considerations played a role, for example, in the availability of funds for the purchase of replacement product?[9]

The Wilbee Report made nine recommendations, the first two of which were:

RECOMMENDATION NO. 1

The Sub-Committee strongly recommends that a public inquiry be carried out into the Canadian blood system, with the efficiency and safety of the system as the primary focus. The inquiry should also include, but not be limited to, a full examination of the events of the 1980s when the Canadian blood supply became contaminated by the human immunodeficiency virus, the pathogen associated with AIDS.

RECOMMENDATION NO. 2

The Sub-Committee further recommends that the federal government take the lead in organizing, funding and carrying out the inquiry as a joint federal-provincial-territorial initiative. The Terms of Reference of this public inquiry should be developed jointly and cooperatively by the federal, provincial and territorial governments, after consultation with affected groups and organizations.[10]

On September 16, 1993, the federal, provincial and territorial ministers of Health met and agreed on the terms of the proposed inquiry announcing that it would examine both the past and present blood systems in Canada. The ministers issued a press release announcing that a public inquiry would be established to review and address:

•     the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;

•     the roles, views and ideas of interested organizations; and

•     the structures and experiences of other countries, especially those with comparable systems.[11]

Then federal Minister of Health, Mary Collins, committed the federal government for the first time to such an inquiry, long sought by representatives of the more than 1,000 Canadians infected with the AIDS virus through contaminated blood products and transfusions. The probe, with the power to subpœna witnesses and documents, would closely examine how and why so many individuals were infected before screening of all blood donations began in late 1985.

In an interview with the Globe and Mail, she is reported to have said:

“No one wants a witch hunt and I understand this will make some people nervous,” Ms. Collins said, “but we have to understand the events of the past in order to ensure that something like this does not happen again.”

The Health Minister said a broader investigation is needed than the one first proposed in May by then Minister Benoît Bouchard.

“That would have been more of a study. I think what is needed is a full inquiry under the Inquiries Act. This was a major tragedy,” Ms. Collins said.

“You can’t change the past. But just from reading what I have about it, it appears things could have been done better.”

…

It’s so sad. A major thing that they [the victims] want is to understand what happened to them and why. It’s almost like a cleansing effect, and I feel strongly about that,” she said.

“After talking to people, I felt that this was the only way to get at the truth and to ensure a really independent look at everything. I feel that there is a lot of cynicism around, and I feel that has to be addressed.”[12]

On September 17, 1993, Minister Collins was interviewed on the CBC Morning News and, in response to enquiries as to whether the Commissioner would assess or assign blame, stated that it is:

… totally up to the commissioner how they decide to proceed and how they pull together their findings and indicate in fact what happened in the past and what organizations, and how it all worked … the commissioner is free … commissioners are free, obviously, to deal with the situation as they feel is most effective. But I think what is really important is to ensure the future of the effectiveness of the system. That’s what everyone is asking us. And, in order to do that, to understand what happened in the past, why there were problems, why in fact so many Canadians were infected with the HIV virus through blood products, and to try to ensure that that never happens again.

…

So, the Inquiry has a very broad mandate, it will have access to all of the information that it requires, and obviously it will make up its own mind about how it will finally come forward with its report. It is not constrained in any way, and I know I’m very confident that it will do a good job.[13]

2.         APPOINTMENT OF THE COMMISSIONER

On October 4, 1993, the Privy Council of Canada issued Order in Council P.C. 1993-1879 advising that a commission would issue under Part I of the Inquiries Act appointing the Honourable Horace Krever to:

… review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s . …[14]

The Commissioner received an identical mandate by orders in council issued by the provinces of Ontario, Saskatchewan and Prince Edward Island.

Each of the orders in council and letters patent of the Commission provided that the Commissioner was:

… authorized to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and in such places in Canada as he may decide.[15]

The Commissioner was directed to prepare first an interim and then a final report and to deliver these reports to the Privy Council.[16] The Commissioner was directed to submit his interim report by May 31, 1994, and his final report by September 30, 1994. The interim report was to address specifically “the safety of the blood system, with appropriate recommendations on actions which might be taken to address any current shortcomings”. By Order in Council P.C. 1994-894 dated May 26, 1994, the date for the delivery of the interim report was extended to November 30, 1994, and the date for the delivery of the final report extended to December 31, 1995. By Order in Council P.C. 1994-2001, dated November 30, 1994, the date for the delivery of the interim report was further extended to February 15, 1995. Subsequently, by Order in Council P.C. 1995-2135 dated December 13, 1995, the date for the delivery of the final report was further extended to September 30, 1996.

3.         EVENTS LEADING TO THIS APPLICATION

Between November 22, 1993 and December 21, 1995, the Inquiry sat for a total of 235 days of public hearings. Between February 14 and 24, 1994, there were introductory hearings in Toronto over nine days. Over 87 days, from March 7 to December 9, 1994, the Inquiry sat and took evidence in various provinces in a series of regional hearings which predominantly focused on historical events of the 1980s. On December 6 and 7, 1994, the Inquiry devoted two days to hearings directed toward a “Safety Audit” of the blood system in Canada which led to an interim report dated February 24, 1995.[17] The hearings on issues with a Canada-wide dimension began on March 7, 1995, and ended on December 21, 1995. These national hearings occupied a total of 137 days, of which 111 days were devoted to historical issues relating to the contamination of the blood supply in the 1980’s. Twenty-six days were devoted to issues currently affecting the safety of the blood supply in Canada. The national hearings into the historical issues concluded on November 6, 1995. National hearings on the present and future of the blood supply took place between November 7, 1995 and December 21, 1995.[18]

More than 490 witnesses were called during the course of the various phases of the public hearings. By the end of the public hearings, 1,230 exhibits had been adduced into evidence totalling approximately 100,000 pages. The Inquiry also generated 48,843 pages of transcript.[19] Free copies of the transcripts were provided to each of the parties and are publicly available for inspection.

On February 7, 1995, Commission counsel advised the parties that public hearings would conclude at the end of December 1995. On October 18, 1995, Commission counsel informed all parties with standing that written submissions were due by noon, January 19, 1996, a deadline which was extended on December 21, 1995, to February 8, 1996, as a result of a near-unanimous request by all of the parties with standing, but not including the CRCS.

On October 26, 1995, Commission counsel delivered a memorandum to all parties stating:

The Commissioner is required by section 13 of the Public Inquiries Act, R.S.C., c. I-13 [sic], to give notice to any person against whom he may report misconduct. The Commissioner will consider your final submissions before making his findings of fact. In order to avoid the situation where some person has not been given notice under section 13 of the Act of a possible finding of misconduct urged by you in your final submissions, and which the Commissioner may wish to adopt, we ask you to provide to us your submissions on what should be included in such notices. You should set out all findings of misconduct which you intend to urge upon the Commissioner by setting out those persons (individual, collective and corporate) against whom you are going to urge such findings and, for each person, what those proposed findings are. These must be provided to Commission counsel no later than one week after the close of the hearings on the historical issues, by 5:00 p.m. on November 10, 1995, if you wish your proposed findings to be considered for inclusion in any notices that may be issued by the Commissioner.

On December 21, 1995, Commission counsel delivered, on a confidential basis, 45 notices under section 13 of the Inquiries Act naming 95 individuals, corporations or governments. Those delivered to the applicants remained confidential until they were filed with the Court by the applicants as part of these proceedings or, in the case of the CRCS applicants, made public through a CRCS press release.

The notices advised that, based upon the evidence adduced, there was a possibility that the Commissioner might make certain findings of fact, that these findings of fact might come within the meaning of section 13 of the Inquiries Act and that the recipient had the right to respond to whether the Commissioner ought or ought not to make any or all of the enumerated findings of fact. The text of the notices recite the detailed individual possible findings of fact which the Commissioner might make.

The notices in issue[20] advise

… that the Commissioner may make the following findings that may amount to misconduct within the meaning of the Inquiries Act, c. I-13, R.S.C. 1990 [sic], the Public Inquiries Act c. P.41, R.S.O. 1990, and the Public Inquiries Act, R.S.P.E.I. 1988, Cap. P-31…. [Italics in original.]

and that the applicants

… are entitled to be heard in person or through counsel to address these potential findings. You may prefer to do so through your final submissions, and, if that is so, no notice need be given to the Commissioner’s office of your preference to be heard in that manner. Final written submissions must be received by the Commissioner’s office no later than noon on Thursday, February 8, 1996. If you wish to be heard in any other manner, you must notify the Commissioner’s office of that wish no later than noon on Wednesday, January 10, 1996.

The affidavit of Commission counsel filed in these proceedings explains the timing of the notices and the reason for the invitation to parties with standing to make known to the Commission any of the allegations of misconduct they may make in their submissions.

(1) The Commissioner and his counsel were cognizant from the outset of the Inquiry that, should the evidence which was adduced lead to the prospect of the Commissioner making a finding of fact within the meaning of section 13 of the Inquiries Act, then notices would have to be given to the affected individual or institution and an opportunity afforded to them to respond.[21]

(2) It was determined that, prior to section 13 notices being issued, all relevant evidence which was to be called by Commission counsel would be heard so that the entire context in which decisions had been made and actions taken could be understood.[22]

(3) Commission counsel was aware that certain of the parties were likely to make submissions at the close of the Inquiry requesting the Commissioner to make findings of fact in respect of other parties which would come within the meaning of section 13 of the Inquiries Act. In order to avoid the prospect of such submissions being accepted by the Commissioner without prior notice having been given to the affected party and thereby requiring a second round of section 13 notices and submissions, Commission counsel determined that it would be useful to obtain a preview of the parties’ final submissions.[23]

4.         THE APPLICATIONS FOR JUDICIAL REVIEW

The Attorney General of Canada, two former federal ministers of Health and sixteen employees or former employees of the federal government (the federal applicants), the Attorney General of Quebec and five former Quebec ministers of Health (the Quebec applicants), seven former Ontario ministers of Health (the Ontario applicants), Her Majesty the Queen in Right of the provinces of British Columbia, Alberta, Manitoba, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and the Yukon and Northwest Territories, together with twenty-five former ministers of Health from these provinces and one former employee (the provincial applicants), the CRCS and thirteen of its employees or former employees (the Red Cross applicants), Bayer Inc. (Bayer), Armour Pharmaceutical Company and Rhône-Poulenc Rorer Inc. (Armour), Connaught Laboratories Limited (Connaught), Baxter Corporation (Baxter), and Craig Anhorn (Anhorn) (all of the foregoing collectively referred to as the “applicants”) commenced these proceedings by way of originating notices of motion (the applications) pursuant to sections 18 and 18.1 of the Federal Court Act.[24]

At the outset of the hearings, three former provincial ministers of Health for Nova Scotia[25] withdrew their applications, together with Her Majesty the Queen in Right of the provinces of British Columbia and Nova Scotia.

During the course of oral argument, following a request for clarification by the Court, counsel for the respondent confirmed that only some of the applicants who had received notices were at risk of being specifically named in the Commissioner’s final report.[26]

Although not all applicants seek precisely the same relief, they ask, collectively, for:

(1) A declaration that the respondent, the Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada, acted without jurisdiction or beyond his jurisdiction in issuing notices on December 21, 1995, to the applicants pursuant to section 13 of the Inquiries Act, subsection 5(2) of the Public Inquiries Act[27] and section 7 of the Public Inquiries Act;[28]

(2) A declaration that the Commissioner acted contrary to the principles of natural justice and procedural fairness and in violation of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and the Canadian Bill of Rights [R.S.C., 1985, Appendix III] in issuing the notices;

(3) A declaration that the Commissioner erred in law in issuing the notices;

(4) An order quashing the notices and prohibiting the Commissioner from making any findings of misconduct or findings of fact tantamount to misconduct or findings of fact tantamount to a finding of civil or criminal liability in his final report; and, in the alternative;

(5) An order extending the time for the applicants to respond to the notices and directing the Commissioner to deliver particulars and produce all evidence in support of the potential findings of misconduct set forth in the notices.

In addition to the foregoing relief, the Red Cross applicants and Baxter also seek a further order prohibiting the Commissioner’s counsel from assisting in the preparation of the Commissioner’s final report, by, inter alia, giving advice to the Commissioner, making recommendations to the Commissioner, or assisting in the drafting of the report. It is to be noted that in its factum, Baxter appeared to have abandoned this request for relief; a fact which was confirmed at the oral hearing.

The Attorney General of Canada does not contest the notice directed to the Government of Canada, but stated before me that the Government of Canada and all its subsidiary departments intend to make a full reply to the allegations set out in the notice directed to them.

5.         THE ISSUES

The applicants base their challenge to these notices on two principal grounds.

The first is whether the Commissioner has the legal and constitutional jurisdiction to make the findings of misconduct contained in the charges in the notices, or whether alternatively, he has lost jurisdiction by having made assurances that he will not make findings of the kind of charges contained in the notices.

The second is whether the Commissioner has lost jurisdiction to make the findings of misconduct set out in the notices because he has not complied with sections 12 and 13 of the Inquiries Act and the requirements of natural justice and, with respect to individuals, section 7 of the Charter.

The CRCS raised an additional issue as to whether Commission counsel should be precluded from participating in the drafting of the Commissioner’s final report.

Counsel for the CRCS stated, “the Applicants are challenging these Notices in these circumstances”. He submitted that the Commissioner, from the outset, interpreted his mandate and repeatedly gave assurances to the applicants on which they relied, that he would make no findings of the kind that are threatened in these notices. Until these notices were received in late December 1995, counsel for the CRCS claims that the applicants had no reason to believe that they could not rely on those assurances or that the Commissioner or his counsel were contemplating notices of this kind at all.[29]

He acknowledged that the ultimate purpose of the Commission to report on the safety of the blood system is a legitimate public purpose but argued that the Commissioner, as an incident to that purpose, cannot make findings of fact equivalent to findings of criminal or civil liability against the individual applicants.[30] He accepted that the Commissioner can be critical of past actions, but claimed that he cannot make findings that characterize the conduct of individuals and institutions in the terms that he has threatened.[31] He conceded that, from the outset, the CRCS recognized and accepted the possibility that the Commissioner might find facts that reflect poorly upon the CRCS[32]—indeed, the CRCS publicly urged its employees to cooperate with the Inquiry while recognizing this possibility. The CRCS did not object to the possibility of findings of misconduct per se and the possibility of section 13 notices when Commission counsel, Ms. Edwardh, delivered her memorandum of October 26, 1995, inviting the parties with standing to make allegations of misconduct against each other.

The Commissioner was represented by outside counsel who asserted that the Commissioner has neither lost his jurisdiction to issue the notices, nor acted outside his jurisdiction in doing so. Counsel also asserted that the Court should not interfere in the Commissioner’s discretion as to the degree and kind of assistance he will require from his counsel in the preparation of his final report.

Twelve intervenors were granted standing to fully participate in the judicial review. All but one of them supported the Commissioner. One of them, the Association of Hemophilia Clinic Directors of Canada, itself received a notice under section 13 of the Inquiries Act, but stated that it was neither in favour nor opposed to the application for judicial review and would respond to the allegations against it in an appropriate forum and at an appropriate time.

In oral argument before me, counsel for the respondent clarified the Commission’s position by stating that:

(1) Only some of the applicants who have received notices are at risk of being specifically named in the Commissioner’s report. The respondent produced a list of individual applicants whose names do not specifically appear in the body of the notices, but who were given notices to permit them to answer any allegations which may reflect unfavourably on their reputation as a result of findings of misconduct made against institutions which they directed.[33] Although they may be mentioned by name in the narrative portion of the report, their names will not appear in a finding which will reflect adversely upon them.

(2) The rules of procedural fairness afford the same protection to non-natural persons as are guaranteed to natural persons;[34]

(3) The Commissioner recognizes[35] that the following principles of procedural fairness are due to the recipients of notices:

(a) the right, although not the obligation, to appear;

(b) the right to counsel of their choice;

(c) the right to be afforded an opportunity to review the documents which the Inquiry is utilizing in its investigation and in making its report;

(d) the right to cross-examine witnesses;

(e) the right to adduce evidence;

(f) the right not to have incriminating answers used against the individual in subsequent proceedings;

(g) the right to be advised of allegations against them;

(h) the right to be provided with an opportunity to respond; and

(i) the right to appear and make submissions before any adverse finding is made;

(4) If it becomes necessary in order to allow a full opportunity to respond, there is no evidence that the Commissioner will not seek an extension of time to fulfil his mandate.[36] He has done so on every prior occasion when such an extension was needed;

(5) No findings will be made where no allegations have been made. If there are new allegations raised as a result of new evidence heard by the Commission, new notices will be issued;[37]

(6) The Commissioner, while not conceding that he does not have jurisdiction to do so, has undertaken not to make any conclusions of law or make any findings of liability, civil or criminal.[38]

Counsel for the applicants also clarified their position by stating that:

(1) They are not trying to stop the Inquiry;[39]

(2) They don’t dispute the power of the Commissioner to make findings generally;[40]

(3) The Commissioner can find individuals to be responsible for actions or inactions, although he may not suggest a failure thereby to meet an objective standard of conduct which may be expected of them;[41]

(4) The Commissioner has jurisdiction to issue section 13 notices generally. It is the particular notices issued in these particular circumstances which they are challenging on the basis that they contain allegations which may lead to findings of criminal or civil liability;[42]

(5) The circumstances in which the notices are being challenged refer to their timeliness (that is, after 2” years of hearings) and the illusory nature of the opportunity now provided to respond.[43]

6.         JURISDICTION OF THE COMMISSIONER TO ISSUE THE NOTICES

(a)       The Inquiries Act

The first Inquiries Act in Canada was given Royal Assent in 1868 [An Act respecting inquiries concerning Public Matters, S.C. 1868, c. 38]. The present Inquiries Act dates back to 1912 [An Act to amend the Inquiries Act, S.C. 1912, c. 28]. The Law Reform Commission of Canada (LRCC) suggests that from 1867 to 1977 (the date of its Working Paper), about 400 Commissions have been appointed under Part I, and from 1880, close to 1,500 under Part II.[44]

The Inquiries Act is divided into two parts. Part I provides for “public inquiries”, which are described [section 2] as inquiries “made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof”. Part II is the authority for “DEPARTMENTAL INVESTIGATIONS”; these investigate and report upon the business of a government department and perhaps on the official conduct of persons working for that department. This Inquiry is being conducted under the provisions of Part I of the Act. Clearly, the purpose of this Inquiry comes within the ambit of section 2 and is concerned, in particular, with the conduct of part of the public business of Canada.

Sections 4 and 5 grant to a Commission coercive powers to compel the attendance and the testimony of witnesses and to compel the production of documents.[45] These are sweeping powers which have been criticized as a potential for the abuse of power.[46]

4. The commissioners have the power of summoning before them any witnesses, and of requiring them to

(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and

(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.

5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

Section 11 allows the commission to engage and utilize the services of advisers, experts and counsel. It reads in part as follows:

11. (1) The commissioners, whether appointed under Part I or under Part II, may, if authorized by the commission issued in the case, engage the services of

(a) such accountants, engineers, technical advisers or other experts, clerks, reporters and assistants as they deem necessary or advisable; and

(b) counsel to aid and assist the commissioners in an inquiry.

Sections 12 and 13 are a statutory recognition of three common law elements of procedural fairness: the right to counsel, the right to notice of any charge of misconduct and the right to a full opportunity to be heard in person or by counsel. They read as follows:

12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.

13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.

There is no definition of “misconduct” in the Inquiries Act. The definition of misconduct in the Shorter Oxford English Dictionary is:[47]

1. Improper or unprofessional behaviour; or 2. bad management.

The French version of the Act uses the term “faute”. In Le Nouveau Petit Robert,[48] the word “faute” is defined as “inconduite”. It can be conduct that falls short of exposing an individual to civil or criminal liability.[49] It is a finding or conclusion that could reasonably be construed as bringing discredit on an individual.[50] Clearly, it is a finding which tends to reflect negatively on the person in question.

The allegation of misconduct must be based on findings of fact, and such findings of fact are independent of any determination as to their legal effect.[51] Section 13 clearly contemplates that the investigation may lead to an unfavourable report against a person showing bad conduct.[52]

In its Working Paper,[53] the LRCC states that there are two types of commissions of inquiry. There are those that advise and there are those that investigate. However, the LRCC notes that many inquiries both advise and investigate. It goes on to say (at page 13) that the “[s]tudy of broad issues of policy may lead to study of abuses or mistakes permitted by the old policy, or absence of policy”.

The Working Paper recommends (at page 34) that:

Proposed findings by an inquiry concerning the conduct of any person should be disclosed to that person, and he should have the right to comment on those findings. There should be a right to legal aid, with those not qualifying for legal aid eligible for some or all of their legal costs at the discretion of the commission.

The Working Paper also recommends that subsection 11(1) be retained and that sections 12 and 13 be continued in modified form.[54]

The Report[55] which followed, notes that both advisory and investigatory Commissions may, in their reports, allege misconduct by a person. However, elementary fairness and basic principles underlying our system of law require that any such person be given reasonable notice of the allegation and an opportunity to be heard concerning it. In some circumstances, that person will be able to address himself meaningfully to those allegations only if he is permitted to present witnesses to the Commission.

The Inquiries Act grants broad investigatory powers to enable them to uncover facts that are not readily accessible to the government or the general public. Many inquiries, of which this Inquiry is an example, are created in the aftermath of a tragic event to establish the reasons for the event. The endowment of an inquiry with such investigative powers is justified by the extreme social importance of having some vehicle of the government to explain the tragic event to the public and to advise the government what solutions to adopt in the future to avoid similar tragedies. As stated by Mr. Justice Cory in the Westray case:[56]

One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers …. [T]hese inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem …. They are an excellent means of informing and educating concerned members of the public.

…

The investigative, educational and informative aspects of inquiries clearly benefit society as a whole.

The finding of facts, and in particular facts that reveal what went wrong or why a disaster occurred, can be an essential precondition to the making of useful, reliable recommendations to the government as to how to avoid a repetition of the events under review.

Justice cannot be properly administered until what happened in this case is discovered, because only then can steps be taken to ensure that it does not happen again. As well, public confidence in the administration of justice is threatened by what has happened here. A public inquiry is necessary so that the public will know that this matter is being dealt with.[57]

The Supreme Court of Canada has upheld many inquiries where the focus of the investigation was to uncover facts related to misconduct, including inquiries focused specifically on whether there was misconduct on the part of particular individuals. In none of these cases did the Supreme Court of Canada question the jurisdiction of the inquiry to make findings of fact showing misconduct.[58]

None of the applicants in these proceedings have challenged the constitutionality of the Inquiries Act or of the Inquiry itself.[59]

(b)       The Mandate of the Inquiry

The Inquiry was established by Order in Council of the Governor in Council pursuant to the Inquiries Act.

The Inquiry is both an advisory and investigatory body. It does not exercise judicial functions, does not determine rights or obligations and does not adjudicate a lis inter partes. It is not a branch of the judiciary and is not a court or quasi-judicial administrative tribunal. The Inquiry is independent of the government which appointed it.

The jurisdiction and mandate of the Inquiry is set out in the following terms of reference from the Order in Council which created it:

… to review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry,

•     the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;

•     the roles, views, and ideas of relevant interest groups; and

•     the structures and experiences of other countries, especially those with comparable federal systems.[60]

This mandate reveals that the functions of the Inquiry are both investigatory and advisory, or recommendatory: the Commissioner must investigate and explain those past events leading to the contamination of the blood system and must make recommendations as to how to avoid the occurrence of a similar disaster in the future.

The terms of reference of the Commissioner have been broadly drafted to include all activities of the blood system in Canada. The Inquiry is not an abstract inquiry into the process of a system. It is about why there was a disaster and what can be learned from that disaster.

It is up to the Commissioner to set the agenda of the Inquiry so as to enable him to fulfil his statutory mandate. The Ontario Law Reform Commission has observed:

It is often difficult at the time of the appointment of an inquiry to investigate either a policy matter or suspected wrongdoing to know precisely the direction the inquiry will follow, and one of the important tasks of any commissioner is to direct the energies of the inquiry as the problem unfolds. One of the distinctive features of public inquiries is their inquisitorial nature. Accordingly, it is the commission, not the parties, that sets the agenda, and this agenda often evolves during the life of a commission.[61]

In order to fulfil the Commissioner’s mandate, the Governor in Council has granted him a wide discretion to determine the procedures and methods of his investigation:

2. the Commissioner [is] authorized to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and in such places in Canada as he may decide;[62]

Under Part I of the Inquiries Act, the Commissioner has wide discretion to determine those things that he will examine to further his investigation. To this end, he has the power to summon witnesses and to compel their testimony and the production of documents and other things that he considers relevant to his investigation.

In my view, it is essential to the fulfilment of the mandate of this Inquiry that the Commissioner be able to uncover facts to explain to the public the contamination of the blood system and, on the basis of those facts, to make recommendations for the future safety of the blood system.

(c)        The Doctrine of Legitimate Expectations

The CRCS, the Attorney General for Canada, the Attorney General for Quebec, Connaught and Bayer raise the issue of legitimate expectations in support of their characterization of the Commissioner’s mandate. Anhorn, Baxter, and Armour do not raise the issue in their memoranda but adopt the arguments of those who do. In oral argument, however, only the CRCS addressed the issue of legitimate expectations. Connaught made a similar argument, although referring to it as reasonable expectations or fair play. The argument is that assurances given by the Commissioner during the course of the hearings effectively limit his mandate and constitute a recognition by him of the same restrictions as were found in the Nelles[63] case. Counsel for CRCS conceded that the legitimate expectation wasn’t with respect to the procedure adopted by the Commission, but “was with respect to what the Inquiry was all about”.[64]

The applicable principles of the doctrine of legitimate expectations are set out by Mr. Justice Sopinka in Reference re Canada Assistance Plan (B.C.).[65] He explains that the doctrine of legitimate expectations does not create substantive rights. The doctrine is part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can only create a right to make representations or to be consulted.

The principle has been applied in the Federal Court in Bendahmane v. Canada (Minister of Employment and Immigration)[66] and in Pulp, Paper and Woodworkers of Canada, Local 8 et al. v. Canada (Minister of Agriculture) et al.[67] In the latter case, Madam Justice Desjardins provided a summary of the relevant case law in the following passage:

The doctrine of legitimate expectations is essentially procedural. It was outlined by Hugessen, J.A., in Bendahmane v. Minister of Employment and Immigration [1989] 3 F.C. 16 95 N.R. 385, at page 31, when he said:

“The applicable principle is sometimes stated under the rubric of ‘reasonable expectation’ or ‘legitimate expectation’. It has a respectable history in administrative law and was most forcefully stated by the Privy Council in the case of Attorney General of Hong Kong v. Ng Yuen Shiu , [1983] 2 A.C. 289 (P.C.). In that case, Ng was an illegal immigrant to Hong Kong from Macau, one of several thousands. The Government gave a public assurance that each illegal immigrant would be interviewed and each case treated on its merits. Notwithstanding this, Ng, whose illegal status was not in dispute, was ordered deported without being given the opportunity to explain why discretion should be exercised in his favour on humanitarian and other grounds. The Privy Council held that in so acting the authorities had denied Ng’s reasonable expectations based upon the Government’s own statements. Lord Fraser of Tullybelton put the matter thus (at page 638):

‘… when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits.’”

After citing a number of British (To those cited, one may add R. v. Secretary of State, [1987] 2 All E.R. 518; R. v. Secretary of State, [1985] 1 All E.R. 40.) and Canada (Other cases may be added. See Gaw v. Commr. of Corrections (1986), 2 F.T.R. 122; 19 Admin. L.R. 137; Bawolak v. Exroy Resources Ltd. (1992), 11 admin. L.R. (2d) 137 (Que. C.A.); Lehndorff United Properties (Canada) Ltd. v. Edmonton (City) (1993), 146 A.R. 37; 14 Alta. L.R. (3d) 67 (Q.B.); Pollard et al. v. Surrey (District) et al. (1993), 25 B.C.A.C. 81 and 43 W.A.C. 81 (C.A.); Sierra Club of Western Canada v. British Columbia (Attorney General) (1991), 83 D.L.R. (4th) 708 (B.C.S.C.) (doctrine not applied); Furey et al. v. Board of Education (Roman Catholic) of Conception Bay Centre et al. (1993), 108 Nfld. & P.E.I.R. 328; 339 A.P.R. 328; 104 D.L.R. (4th) 455 (nfld.) (doctrine not applied).) cases dealing with the doctrine, the Supreme Court of Canada in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R (2d) 134, at 1204, stated the following:

“The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity. The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation.”

In Reference re Canada Assistance Plan (B.C.),[68] the Supreme Court of Canada further explained:

There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. It is a part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create a right to make representations or to be consulted. It does not fetter the decision following the representations or consultation.

In reality, the applicants seek to use the doctrine of legitimate expectations not to obtain procedural fairness, but to alter the substantive jurisdiction or otherwise to fetter the decision of the administrative body. This is an Inquiry established on the direction of the Governor in Council and, although it is to be conducted by the Commissioner, the Commissioner cannot abridge or enlarge his terms of reference.

The assurances relied on by the applicants to limit the mandate of the Commission were made at the outset of the opening hearings of the Inquiry on November 22, 1993, at which time the Commissioner described his terms of reference as follows:

It is not and it will not be a witch hunt. It is not concerned with criminal or civil liability. I shall make findings of fact. It will be for others, not for the commission, to decide what actions if any are warranted by those findings.

I shall not make recommendations about prosecution or civil liability. I shall not permit the hearings to be used for ulterior purposes, such as a preliminary inquiry, or Examination for Discovery, or in aid of existing or future criminal or civil litigation.

As I interpret the terms of reference, the focus of the inquiry is to determine whether Canada’s blood supply is as safe as it could be and whether the blood system is sound enough that no future tragedy will occur. For those purposes it is essential to determine what caused or contributed to the contamination of the blood system in Canada in the early 1980’s. We intend to get to the bottom of that issue, let there be no mistake about that.[69]

Counsel also relied on similar assurances[70] to those given on November 22, 1993. On February 14, 1994, the Commissioner stated:

I have said and I repeat that criminal or civil proceedings are not my concern. No one is on trial here. This is an inquiry into facts that will form the foundation of important policy recommendations.

On October 17, 1994, he said:

I said at the very outset of this Inquiry that the reason for hearing evidence is not for the purpose of advancing anybody’s interest in any kind of litigation, civil or criminal.

On November 24, 1995, the Commissioner said:

I want to repeat what I have said before on more than one occasion that this is not a trial. No one, no person, or organization is on trial. This is not an adversary proceeding in which a party makes allegations against another party. It is an inquiry, inquisitional in nature. Moreover it is my inquiry, not my counsel’s inquiry.

I have no intention of making findings of liability or fault whether civil or criminal.

It is clear that the doctrine of legitimate expectations has no application in law or in fact to this case.

These statements are entirely consistent with the terms of reference set out in the Order in Council. Even if I were to find that the doctrine of legitimate expectations were to apply, these statements could not alter the Commissioner’s mandate.

(d)       Prejudice in Respect of Other Proceedings

The applicants make reference to the prejudice which they may suffer at subsequent criminal or civil trials.

With respect to subsequent criminal proceedings, the applicants have put forward no evidence that they are accused or suspected in any criminal proceedings. In any event, the applicants would have an array of procedural protections at subsequent criminal proceedings including: protection under sections 7 and 13 of the Charter and section 5 of the Canada Evidence Act [R.S.C., 1985, c. C-5] against the admissibility or use in subsequent criminal proceedings of evidence, including derivative evidence, from the Inquiry; the discretion of the Attorney General not to prosecute if to do so would be unfair; the discretion of the trial judge to stay a proceeding if it would be unfair; an impartial decision-maker if the proceeding were before a judge alone; and, challenge for cause or a stay if the proceeding were before a jury that is not considered impartial.

In particular,

(1) Section 13 of the Charter prohibits the use of any testimony by an applicant before the Commissioner to incriminate him in criminal proceedings.

(2) Where section 5 of the Canada Evidence Act[71] has been invoked before testifying, it prohibits the use of testimony to incriminate in criminal proceedings, although this protection adds nothing to the section 13 protection which need not be invoked.[72]

(3) Section 13 of the Charter will protect those compelled to testify, should charges ever be laid against them, from the use of any “evidence which [came] to light as a result of [their] compelled disclosure.” This includes not only evidence that “could not have been obtained” but also evidence “the significance of which could not have been appreciated” but for the compelled testimony. The Supreme Court of Canada has expressly left open that the same protection may be available to those who testify voluntarily.[73]

Therefore, where one testifies through compulsion, there is a protection beyond that of section 13 of the Charter and section 5 of the Canada Evidence Act, through section 7 of the Charter. Section 7 applies so that no derivative evidence obtained through compelled testimony is admissible in criminal proceedings since this would be contrary to the principle against compelled self-incrimination.[74]

In Westray, Mr. Justice Cory, speaking for three members of the Court, enumerated a number of considerations to be taken into account when considering the position of individuals at risk of adverse findings by the Commission. Although the considerations are given in the context of an application for a stay or publicity ban, they are instructive to the present case where the applicants argue that they will be exposed to the stigma of criminal liability as a result of the publicity likely to surround the findings of the Commissioner. The pertinent considerations are the following:

1. Public inquiries often play an important role in satisfying public interest and concern as to the cause of a tragedy, the safety of persons involved in the operation of the institution or industry to be investigated, the nature of the applicable safety regulations, the governmental enforcement of those regulations and procedures, and recommendations for the future safety of the industry or institution.

2. The right to a fair trial is of fundamental importance and must always be carefully considered in determining whether Charter remedies should be granted in order to protect that right.

3. The importance of public inquiries requires that all persons with relevant evidence to be given will be subject to subpœna and compellable to testify as witnesses.

4. The rights of those witnesses are generally protected by the provisions of the Charter, particularly paragraph 11(d) and sections 13 and 7.

5. Not only will the witness have the right not to have the testimony given used to incriminate him or her, there will also be protection from the use of “derivative evidence” as provided by S. (R.J.) , supra.

6. In some circumstances proceeding with the public inquiry may so jeopardize the criminal trial of a witness called at the inquiry that it may be stayed or result in important evidence being held to be inadmissible at the criminal trial. In those situations, it is the executive branch of government which should make the decision whether to proceed with the public inquiry. That decision should not, except in rare circumstances, be set aside by a court.

7. If the accused elects trial before a judge alone then pre-trial publicity will not be a factor to be taken into consideration in assessing the fairness of the trial.

As for the prejudice to which the applicants claim they will be exposed in civil proceedings, many of the current civil suits against the applicants were initiated before the hearings of the Inquiry commenced. The applicants have known throughout the Inquiry hearings the uses which could be made of their evidence given at the Inquiry in these civil proceedings. I have been referred to no legal authority for the proposition that the findings of the Commissioner, much less the content of the notices, would be admissible in evidence at subsequent civil proceedings to determine any issue before that court. In any case, the trial judge will be better placed to determine whether the evidence or the report should be admitted into evidence and if so, what weight should be accorded it.

There is a distinction between an inquiry and a court; an inquiry does not determine guilt or liability.

(e)       Nature of the Allegations

It is important to keep in focus that the applicants are seeking to quash notices of the charges of misconduct alleged against them and not any findings of misconduct made in the Commissioner’s report. The applicants have not brought into question the Commissioner’s interim report and he has not yet delivered his final report. The notices, which were given pursuant to section 13 of the Inquiries Act, are intended to give notice to the recipients of the charge of misconduct alleged against them and to allow them a full opportunity to be heard in person or by counsel. This is a procedure that has been followed by many commissions of inquiry.[75] The applicants attack these notices based on the nature of the charges of misconduct contained in them.

Although there are some reported cases where specific findings of a commissioner have been set aside,[76] I was not referred to any case where a notice under section 13 of the Inquiries Act has been set aside.

The individual applicants fear that the charges of misconduct alleged in the notices, if adopted by the Commissioner, have the potential to devastate their reputations and careers. Further, they claim that the Commissioner may not make findings of fact that would reasonably be taken by the public as determinations that a case has been established. These are clearly challenges to potential and not to actual findings. It is pure speculation on the part of the applicants at this stage. Additionally, the Commissioner has undertaken to give the recipients of notices, who wish to avail themselves of the right, a full opportunity to be heard including all of the procedural safeguards enumerated earlier in this decision. The Commissioner has also undertaken not to make any conclusions of law.[77] He has stated that he won’t make any findings of liability, civil or criminal.[78]

Counsel for the applicants relied heavily on the Nelles[79] and Starr[80] cases and urged on me that they impose an implied limitation on the jurisdiction of a commission of inquiry which had been recognized by the Commissioner in giving his assurances.

In the Nelles case, the Order in Council specifically limited the Commissioner by forbidding him to express any conclusion of law regarding criminal or civil liability. The Commissioner stated the following question for the Court: “Was I right in determining that I am entitled in my Report … to express my opinion upon whether the death of any child was a result of the action, accidental or otherwise, of any named person or persons?” The Court of Appeal answered that while the Commissioner must not identify an individual as being legally responsible for a death, he should analyze and report upon all the evidence with respect to the circumstances of a death and if he can, make recommendations on the basis of that evidence. Although the constitutional validity of the Order in Council was not in issue, the interpretative limitations which were imposed by the Court were designed to ensure that it stayed within provincial jurisdiction.[81]

The Court of Appeal made the following important observation at pages 215-216:

A public inquiry is not the means by which investigations are carried out with respect to the commission of particular crimes …. Such an inquiry is a coercive procedure and is quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.

It is clear from the Starr case that an inquiry by a Commissioner is not a substitute police investigation and preliminary hearing into a specific allegation of misconduct by named private citizens.[82] Such an inquiry would result in the Commission assimilating its role to that of a judge at a preliminary hearing. In the Starr case, no broader policy objective was present to distinguish that inquiry from a substitute police investigation.

The O’Hara[83] and Westray[84] cases illustrate the broad purpose which commissions of inquiry serve. In O’Hara, the Supreme Court upheld an inquiry which made findings which clearly amounted to civil and potentially criminal liability on the grounds that the Order in Council mandating an inquiry into all matters associated with the alleged injuries sustained by Michael Albert Jacobson pursued a valid purpose which was within provincial jurisdiction. In Westray, there was a criminal prosecution and a close measure of cooperation between the commission and the police. The Nova Scotia Court of Appeal found that this was a valid fact-finding exercise, a point on which leave to appeal to the Supreme Court of Canada was refused.[85] Indeed, the Supreme Court refused the application to stay the commission’s hearings pending the conclusion of the criminal prosecution.

The terms of reference of this Commission of Inquiry reflect the fact that its predominant role is to elucidate facts and not to conduct a criminal trial. In Starr, Lamer J. [as he then was] acknowledged that there is substantial scope for an inquiry into misconduct as long as it is not used as a substitute for the ordinary criminal process or to bypass the protections provided by that process.[86]

I was also referred to a recent decision of Chief Justice Daigle.[87] In that case, the applicant sought an order quashing certain adverse findings of the Commissioner on the ground that the findings exceeded the limited mandate of the Commissioner. The Order in Council establishing the Commission of Inquiry, as in the Nelles case, specifically precluded the Commissioner from expressing “any conclusion of law regarding civil or criminal responsibility”. In his analysis, Chief Justice Daigle reviewed the Nelles, Starr and Westray cases. He observed that the findings of fact under attack would have to be examined in the context of the purpose and mandate of the Commission and in light of the specific limitation imposed on the Commission. In the result, he found that a particular finding of fact constituting a conclusion of civil responsibility and ascribing such responsibility to an individual by naming him offended the prohibition in his mandate and had to be severed from the report.

In issuing these notices, the Commissioner has not gone beyond his mandate or crossed the line to conduct an investigation of the commission of particular crimes. The allegations contained in the notices could lead to findings that could reasonably be construed as bringing discredit on an individual, a corporation or an institution, that is to say, misconduct. The Commissioner has stated that although there is no such prohibition in his mandate, he would not, in his findings, make any conclusions of law or conclusions of liability, criminal or civil.

The central argument of the applicants rests on the analysis that the Commissioner cannot set out in the notices allegations which in their view amount to, are tantamount to, or are equivalent to, findings of criminal or civil liability because they could not properly be made as findings. However, no such findings have been made by the Commissioner; he has only given statutory notice to different persons of the charges of misconduct alleged against them. I am not only being asked to agree with their characterization of the allegations, but also to conclude that the Commissioner may make such findings and that if he did make such findings, they would be beyond his mandate.

As was done in Landreville[88] and Richards, the findings of the Commissioner, when released, are subject to individual scrutiny and subject to being set aside if they exceed the mandate of the Commission. All I have before me, at the present time, is the administrative act of the Commissioner, acting through his counsel, of deciding to give statutory notice to affected parties. The notice is given to protect the person’s interests. Any argument against the Commissioner adopting any of the allegations may properly be raised before him since a full opportunity to be heard is afforded to all persons receiving the notices.

Counsel for the Attorney General of Canada has suggested that the recipients of the notices should not be placed in a position to negotiate their rights with the Commissioner.[89] In my view, he misconstrues the nature of the notices under section 13 of the Inquiries Act. The recipients are accorded a full opportunity to be heard; this is a right, not a position from which to negotiate.

7.         PROCEDURAL FAIRNESS

The applicants assert that the Commissioner lost his jurisdiction due to a failure to afford those procedural protections which they allege are required by section 7 of the Charter, paragraph 2(e) of the Canadian Bill of Rights, sections 12 and 13 of the Inquiries Act and the common law.

(a)       Standing

Twenty-nine applications for standing before the Inquiry were heard on November 22, 1993. Eighteen applicants were granted standing, including the following:[90]

•€ CRCS

•€ Connaught

•€ Government of Canada

•€ Miles Canada Inc. (now Bayer)

•€ British Columbia

•€ Alberta

•€ Saskatchewan

•€ Manitoba

•€ Ontario

Subsequent to the opening hearing, the provinces of New Brunswick, Newfoundland, Prince Edward Island, Nova Scotia and the Yukon and Northwest Territories sought and were granted standing.[91]

In addition to the foregoing, standing was granted to the following organizations:[92]

Canadian Hemophilia Society

Canadian AIDS Society

HIV-T Group (Blood Transfused)

Canadian Hemophiliacs Infected with HIV

Janet Conners

Hemophilia Ontario—Toronto and Central Ontario Region

Gignac Sutts Group

Jean-Daniel Couture and Guy-Henri Godin

Canadian Blood Agency

Canadian Association of Transfused Hepatitis C Survivors

Committee of HIV Affected and Transfused

Canadian Hemophilia Clinic Directors Group

None of the applicants in these proceedings who sought standing had their applications denied. Of the institutional applicants in these proceedings, only Armour, Baxter and the province of Quebec did not apply for standing before the Commission. Although Quebec did not seek standing, it was accorded all of the rights and privileges of a party with standing and participated in the hearings held in the province of Quebec and the national hearings subsequently held in Toronto.[93] None of the individual applicants in these proceedings sought standing before the Inquiry.

(b)       Rules of Procedure

During the course of the Commissioner’s opening remarks on November 22, 1993, he announced that a meeting of all persons with standing would be held on November 29, 1993 to discuss the issues to be examined by the Inquiry and the procedures to be adopted. In this regard, the Commissioner stated:

Rather than promulgate a code of procedure I have arbitrarily devised in advance, I am instructing my counsel to call, as soon as possible, a meeting of all persons with standing to discuss both the issues and procedures that should be adopted that would make it possible to canvass all the important issues adequately and in a fair way.[94]

In accordance with the Commissioner’s direction, meetings of counsel for all parties were held November 29, 1993 and December 20, 1993. During the course of these meetings and through correspondence and discussions between Commission counsel and counsel for the parties, consensus was achieved concerning the Rules of Procedure and Practice which would govern the proceedings of the Inquiry and the views of the parties were obtained concerning the issues to be examined and the identity of prospective witnesses.[95]

As a result of the discussions, the following procedures were agreed to:

i)    Commission counsel would assume primary responsibility for adducing the evidence before the Inquiry and counsel for the other parties would be afforded the opportunity to cross-examine each witness;

ii)    only those documents produced to the Inquiry which were selected for use as exhibits would be made available to the other parties;

iii)   all parties would have the right to introduce additional documentary evidence and apply to call additional witnesses; and

iv)   all parties and all witnesses would have an opportunity to be represented by counsel.[96]

On January 28, 1994, the final version of the Rules of Procedure and Practice was circulated to the parties. At no time did any of the parties raise any objection with the Commissioner concerning these rules or the manner in which they were applied at the hearings.[97]

The final version of the Rules of Procedure and Practice contained the following relevant provisions:

# 1     It is proposed that in the ordinary course Commission counsel will call and question all witnesses who will be heard at the Inquiry. Counsel for a party may apply to the Commissioner to adduce a particular witness’ evidence in-chief. If counsel is granted the right to do so, the examination shall be confined to the normal rules governing the examination of one’s own witness.

…

# 4     If, at the end of a stage of the hearing there are persons who a party believes must be heard and Commission counsel has not called them, the party may apply for leave to have them called as witnesses. If leave is granted, Commission counsel shall call them, subject to Rule 1.

# 5     The order of examination will be as follows:

i)     Commission counsel will adduce the evidence from the witness. Parties granted formal standing will then have an opportunity to cross-examine the witness;

ii)    Counsel for a witness, regardless of whether or not counsel is representing a party, will cross-examine last, unless he or she has adduced the evidence of that witness in chief, in which case there will be a right to re-examine the witness; and

iii)    Commission counsel may ask questions concerning new areas that have been raised through cross-examination conducted by the parties.

…

The Form of the Evidence

# 7     Commission counsel are entitled to adduce evidence by way of both leading and non-leading questions as they, in their judgment, deem necessary, subject always, of course, to the discretion of the Commissioner.

…

# 9   Witness who are not represented by counsel for parties with standing are entitled to have their counsel present.

# 10   Counsel for a witness is entitled to ask questions of the witness after Commission counsel has adduced his or her evidence and the other parties have cross-examined the witness.

…

# 12   The Commission is entitled to receive evidence which might otherwise be inadmissible in a court of law. The strict rules of evidence will not apply to determine the admissibility of evidence. However, the Commissioner will be mindful of the dangers of evidence not admissible in a court of law and its possible effect on reputation.

…

Confidentiality

# 19   The Commissioner is committed to a process of public hearings. However, applications may be made to proceed in camera or to otherwise preserve the confidentiality of information.

…

Documentary Evidence

# 33   The Commission expects all relevant documents to be produced by any party with standing.

# 34   Documents received from a party, or any other organization or individual, shall be treated as confidential by the Commission unless and until they are made part of the public record as an exhibit. This is not intended to preclude Commission counsel from disclosing a document to a proposed witness prior to the witness giving his or her testimony or as part of the investigation being conducted.

# 35   Subject to Rule 36 and to the greatest extent possible, Commission counsel will endeavour to provide in advance to both the parties and a witness the documentation that will be referred to during the course of that witness’ testimony.

…

# 37   A party who believes that Commission counsel has not included relevant documents in the document book must bring this to the attention of Commission counsel at the earliest possible opportunity. The object of this rule is to prevent witnesses from being surprised with a relevant document that they have not had an opportunity to examine prior to their testimony. If Commission counsel decides the document is not relevant, it shall not be included in the document book. This does not preclude the document from being used in cross examination by any of the parties. Before such a document may be used for the purposes of cross examination, a copy must be made available to all parties by counsel intending to use it not later than the first cross examination of that witness, subject to the discretion of the Commissioner.

The Right to Counsel

# 38   If a person is employed with someone who holds standing as a party to the Inquiry, Commission counsel will interview that person only after informing counsel for the party, unless the witness says he or she has independent counsel or instructs Commission counsel that he or she does not wish counsel for the party to be present or notified.

# 39   If a witness has held prior employment with one or more of the parties, Commission counsel will tell the witness that he or she is free to have the benefit of counsel for that party, but Commission counsel will proceed with the interview if the witness indicates that he or she does not wish counsel for the party by whom he or she was employed to be notified or be present during the interview.[98]

(c)        List of Issues for Inquiry Hearings

The Order in Council establishing the Commission of Inquiry directed the Commissioner to investigate and report on the events of the early 1980s and to examine and make recommendations concerning the current blood system, but did not provide details of the specific issues which the Commissioner was to examine.

Following consultation with the parties, Commission counsel developed an outline of the issues which had, by then, been identified as being appropriate to be examined at the local hearings. This outline contained over 20 topics and was circulated to counsel for the parties on January 14, 1994. It included such topics as:[99]

i) the history of HIV and AIDS being made reportable diseases;

ii) the existence of “trace back” and “look back” programs intended to identify those who had donated infected blood and those who had received it, including an examination of what programs had been considered and rejected and what programs should be put in place to trace future epidemics;

iii) non-Red Cross blood testing; and

iv) donor screening issues.

Commission counsel also developed a list of issues to be examined primarily at the national hearings. This list of national issues was described as a working document and was circulated to the parties on February 11, 1994. It included such topics as:[100]

i) an overview of federal regulation of the blood system;

ii) funding of the blood system;

iii) a detailed review of the events surrounding HIV and AIDS in the blood system, including knowledge of HIV and AIDS in the blood supply, the development of HIV testing, the development of heat treatment for blood products, organizational difficulties relating to the CRCS, the role of the Bureau of Biologics, the CBC and the Canadian Hemophilia Society;

iv) Hepatitis B;

v) donor screening issues;

vi) HIV testing issues;

vii) heat treatment of blood products, including whether there ought to have been a recall of non-heat treated products and whether alternative products were available. When funding was available for heat treated products and when such products were available for supply;

viii) donor and recipient notification programmes;

ix) blood fractionation issues; and

x) the current legislative and regulatory framework.

None of the parties suggested that any of the proposed issues went beyond the Commissioner’s mandate or were not appropriate for review by the Inquiry.[101]

In addition to seeking the assistance of the parties in identifying the issues to be examined during the hearings, Commission counsel also sought the parties’ views as to who ought to be called as witnesses.

(d)       Section 7 of the Charter

I am not satisfied that the issuance of the notices engages a specifically identified interest under section 7 of the Charter, which in any event applies only to natural persons and not to corporations or governments. Like other provisions of the Charter, section 7 must be construed in light of the interests it was meant to protect.[102] No one has suggested that it engages the “life” or “liberty” of the person. The argument would appear to rest on the proposition that “security of the person” encompasses reputation. Respect for reputation is an underlying value in our society. However, reputation or protection from stigma are not independent constitutionally protected rights. There is no authority to support the proposition that security of the person encompasses mere reputation. Accordingly, any interests of the applicants in relation to the issuance of the notices is not within the scope of section 7 of the Charter because it cannot be said to engage or deprive their rights to “security of the person”.

In any event, even if it were accepted that the issuance of the notices engages the applicants’ rights under section 7 of the Charter, the Inquiry has fulfilled the duty of procedural fairness to which it is subject, and accordingly the applicants cannot claim that the issuance of the notices did not accord with the principles of fundamental justice.

(e)       Paragraph 2(e) of the Canadian Bill of Rights

Paragraph 2(e) provides that every law of Canada shall be construed or applied so as not to “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”.

Unlike section 7 of the Charter, the protections afforded by paragraph 2(e) apply to corporations as well as to human persons.

The short answer to those applicants who rely on paragraph 2(e) is that the Canadian Bill of Rights has no application in the present case because the Commissioner’s report does not determine any rights or obligations of the applicants. In any event, paragraph 2(e) requires that section 13 of the Inquiries Act be construed and applied so as not to deprive the applicants of a fair hearing. Since the Inquiry has fulfilled the duty of procedural fairness to which it is subject, the principles of fundamental justice are also met with respect to the Canadian Bill of Rights.

(f)   Sections 12 and 13 of the Inquiries Act and the Common Law

Sections 12 and 13 of the Inquiries Act codify certain elements of the common law duty of procedural fairness: the right to counsel and audi alteram partem.

All of the applicants have had the right to counsel throughout the course of the Inquiry. The applicants, if they choose to respond, have been offered a full opportunity to be heard and there is clearly no evidence that they have been deprived of such opportunity. Section 13 of the Inquiries Act contains no requirement that the notices provide details of the evidence supporting the possible findings; only that notice of the potential findings be given. As I noted earlier, the record of the tribunal’s proceedings has been made available to all parties and is available to the public.

The Supreme Court of Canada has held that fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right.[103]

The procedural rules of litigation do not apply to an inquiry.

The Law Reform Commission of Canada has recommended the following procedural safeguards, noting that some are at the discretion of the Commissioner:[104]

What safeguards are necessary? It is imperative that all those appearing before a commission have the right to be represented by counsel. One who appears as a witness before an investigatory commission should have the right to be heard concerning any matter raised at the hearing that may adversely affect his interests, and, at the commission’s discretion, to call, examine or cross-examine witnesses personally or by counsel. The commission’s discretion regarding the calling and examining of other witnesses should be exercised having regard to the importance of the interest affected and the need to proceed expeditiously with the work of the commission. Those who did not appear initially as witnesses, but who have been commented on adversely in the testimony of others, should have the opportunity at the discretion of the commission to appear as witnesses (with the right to counsel and cross-examination) should they wish to do so.

The applicants who sought standing have had the benefit of all the foregoing procedural protections throughout the Inquiry, even before the notices were issued. The applicants have not sought to respond to the notices and have presented no evidence to show that the Commissioner will not allow them a full opportunity to respond to the notices through the exercise of these same or even greater procedural protections.

In those cases where an inquiry is convened solely to examine possible wrongdoing or misconduct, which this Inquiry was not, the courts have held that the common law duty of procedural fairness can include:

(i)         a right to counsel and a right to call and to cross-examine witnesses;[105]

(ii)        a right to have counsel lead evidence in chief and make representations to the Commissioner after all witnesses have been examined;[106]

(iii)       a right to be informed of all exhibits or documents produced or evidence heard before the commission; and[107]

(iv)       a right to be informed of the allegations or complaints against the individual and an ample opportunity to respond to those allegations;[108]

All of the foregoing procedural safeguards have been provided to the applicants and the very issuance of the notices informs them of the allegations and of their opportunity to respond.

(g)       Nature of the Evidence

Although the applicants did not respond to the notices, they assert that their ability to do so has been irreparably damaged due to the form of some of the evidence that has been admitted at the hearings.

Inquiries are not governed by strict rules of evidence. Their broad public purpose is generally facilitated by relaxed rules regarding the admission of hearsay and other evidence that is not strictly admissible in judicial proceedings. There is no evidence to suggest that the Commissioner will not be mindful of the dangers of any hearsay evidence which may have been admitted in the proceedings, as acknowledged in Rule 12 of the Commission’s Rules of Procedure.[109] The record of this Inquiry is not yet complete. All of the applicants now have the opportunity to add to the record by responding to the notices and by making submissions.

I am confident that, in writing his report, the Commissioner will be guided by the principles set out by Lord Diplock in the Mahon case.[110] A tribunal making a finding in the exercise of an investigative jurisdiction is required to base its decision on evidence that has some probative value, in the sense that there has to be some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supporting the finding, if disclosed, not be logically self-contradictory. A tribunal exercising an investigative jurisdiction is also required to listen fairly to any relevant evidence conflicting with, and any rational argument against, a proposed finding that a person represented at the inquiry whose interests (including his career and reputation) might be affected wishes to place before the inquiry.

(h)       Confidential Submissions

As a further ground for asserting that the Commissioner has lost his jurisdiction to issue notices, the applicants rely on the receipt by Commission counsel of confidential submissions concerning the issuance and content of the notices.

Earlier in these reasons, I have recited the events leading to the memorandum dated October 26, 1995, from Commission counsel to all parties with standing inviting them to set out all findings of misconduct which they intend to urge upon the Commissioner in their final submissions.[111]

In response to Commission counsel’s October 26, 1995, memorandum, many of the applicants’ counsel wrote to Commission counsel expressing concern with the proposed procedure. Amongst the matters objected to was the potential for adverse publicity arising from the submissions themselves. No party objected to the prospect of notices being issued on the basis that it was too late in the proceedings.[112]

Commission counsel clarified that the submissions would be kept confidential and that they were not to be made public by the party filing them so as to avoid harm to the reputation of those referred to in the submissions.[113]

On November 24, 1995, the Commissioner stated that he would not review the submissions which had been received or were to be received and that they would be reviewed only by his counsel.[114]

During November and December 1995, while the hearings in respect of the current issues were ongoing, the documentary exhibits and transcripts of evidence which had been adduced were reviewed to determine whether and to whom notices should be issued. The confidential submissions which had been received were also reviewed in order to ensure that Commission counsel did not overlook an issue or fact from the two year record of the hearings.[115]

On December 21, 1995, 45 notices naming 95 individuals, corporations or governments were delivered on a confidential basis.

Although the applicants requested the production of the confidential submissions at the outset of these judicial review proceedings, they withdrew this request prior to or at the scheduling motion[116] due to the public interest privilege associated with the submissions.

Any submissions received by Commission counsel which may form the basis of findings of misconduct by the Commissioner are contained in the notices and the applicants will be provided with an opportunity to respond to those potential findings. The parties who did not receive the submissions will be afforded a fair opportunity to respond to any issues raised by them prior to any decision being made in reliance on the submissions.

I was referred by counsel for the Attorney General of Canada to the case of Hecla Mining Company of Canada v. Cominco Ltd. and Canada (Minister of Indian Affairs and Northern Development).[117] In that case, the record showed that after the parties had completed their submissions, the Minister had received a letter from the mining recorder which contained a number of assertions of fact and opinions which were incorporated by the Minister into his decision almost verbatim. That letter was never communicated to the parties prior to the decision. Counsel for the respondent attempted to argue that the Minister’s breach was of little consequence since even if the applicant had been afforded an opportunity to reply, there is nothing it could usefully have said or done. In setting aside the decision of the Minister, Mr. Justice Hugessen relied on the decision of the Supreme Court in Cardinal et al. v. Director of Kent Institution[118] where Le Dain J. said:

… I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.

The following distinguishing features arise in the present case:

(1) The invitation to make submissions was public, in writing, and addressed to all parties;

(2) On November 24, 1995, the Commissioner stated publicly that he would not review the submissions which had been received and that they would be reviewed only by his counsel;

(3) The Commissioner has not taken any decision in the sense of having made any findings as a result of receiving submissions in answer to this memorandum;

(4) The allegations concerning any person that may be included in a finding by the Commissioner were disclosed to that person in the notice that was subsequently delivered and that person has knowledge of any of the allegations contained in the submissions in reply to the memorandum which have been retained by the Commissioner;

(5) Any other allegations contained in the submissions cannot support a finding of misconduct by reason of section 13 of the Inquiries Act;

(6) The persons against whom these allegations have been made have a full opportunity to be heard before any findings are made by the Commissioner in his final report.

Accordingly, the applicants have not been denied a right to a fair hearing by reason of Commission counsel receiving the confidential submissions described above in these particular circumstances.

(i)         Timeliness of the Notices

The applicants claim that timely notice, and therefore reasonable notice, was not given by the Commissioner who waited until after two years of hearings to deliver the notices. This ground of attack also arises in the claim of a denial of a full opportunity to be heard which I will deal with shortly.

Section 13 of the Inquiries Act expressly provides that notice be given to any person of the charge of misconduct alleged against him before any unfavourable report is made. The Commissioner has literally complied with that statutory provision. Other commissions of inquiry have, depending on their context, adopted different approaches to the timing of the issuance of section 13 notices. In some cases where their terms of reference or the surrounding circumstances have implicitly or explicitly made it clear that the conduct of an identifiable individual is being investigated, notice has been given at the outset[119]. In other cases, where it is only through the investigatory process that individuals are identified and evidence of possible misconduct is uncovered, notice is given following the investigation[120].

The notices which were delivered on December 21, 1995, were provided to counsel who had represented the parties or a witness during the proceedings or who Commission counsel understood had represented the parties or witnesses. In the case of the individual Red Cross applicants, their notices were provided to counsel for the CRCS. Following receipt of these notices, the CRCS’ assistant general counsel wrote to each of the individual Red Cross applicants advising:

A common practice in Commissions of Inquiry is the distribution of “Notices” to organizations and individuals involved in the Inquiry. This action is part of the Commission’s duty to notify people of the possibility of adverse findings against them in the final report and must include all possible findings—they do not mean that a decision has been made.

On December 21, 1995, the Commission of Inquiry into the Blood System in Canada issued a number of such notices, including one addressed to you. A copy of the notice is enclosed, along with a letter from Earl Cherniak, the Society’s counsel, explaining in more detail what these notices mean and how we are planning to address them.

In response to this notice we will be incorporating the evidence you presented to the Inquiry into the Red Cross written submissions. However, if there is any other information you would like to bring forward, please let me know promptly so that we can assist you.[121]

There is no evidence before me that the Commissioner acted in bad faith or for an ulterior purpose in deciding to deliver the notices at the conclusion of the public hearings.

(j)         Allegations of Procedural Inadequacies

The applicants complain in these proceedings that they were not afforded all of the procedural safeguards required in the circumstances by natural justice. More particularly, they complain of:

(1) inadequate opportunity to examine and cross-examine witnesses;

(2) inadequate notice of anticipated issues and evidence;

(3) inadequate documentary disclosure;

(4) failure to put allegations contained in the notices to the witnesses during the course of their testimony; and,

(5) inappropriate restrictions regarding witnesses.

The public hearings spanned some two and a half years. The applicants have referred me to specific incidents to illustrate each particular complaint. I cannot conclude, on the basis of these incidents, that the Inquiry hearings were rendered unfair. Given the Commissioner’s assurance that recipient of the notices will be given a full opportunity to be heard on the allegations contained in those notices, surrounded by all the procedural safeguards which I have set out earlier, before making any unfavourable report, I cannot conclude that the applicants have been or will be deprived of a fair hearing.

(k)        The Apology Issue

Although the CRCS has made no allegations of bias against the Commissioner, its counsel raised as an issue the verbal exchange which took place between the Commissioner and Mr. Douglas Lindores, the current Secretary General of the CRCS, at the opening of the public hearing on November 23, 1995.[122] Before Mr. Lindores commenced his presentation, the Commissioner referred him to a transcript of a phone-in radio program, in which Mr. Lindores participated in March of 1995, and which the Commissioner interpreted as placing the blame on the Commission of Inquiry for the inability of the CRCS to apologize to those persons who had become infected by the use of blood and blood products.[123] The Commissioner confessed to having great difficulty in understanding how an apology would amount to selling out and abandoning the staff of the organization.

Counsel for the CRCS suggests that the Commissioner has apparently concluded that the CRCS ought to apologize and has something to apologize for. He goes on to suggest that this may affect its ability to respond to the notices directed at the CRCS and its senior officials. However, he does not challenge the integrity of the Commissioner, does not claim that the Commissioner should be prevented from writing his final report and does not claim that the report cannot be critical of the CRCS.

Placed in their context, the remarks of the Commissioner do not establish that the Commissioner will not fairly listen to any submissions that the CRCS or its officials may wish to make in response to the allegations contained in their notices.

8.         THE ROLE OF COMMISSION COUNSEL IN THE DRAFTING OF THE FINAL REPORT

The objection raised by the CRCS and the Attorney General for Canada (originally raised by Baxter as well, although dropped in oral argument) to the participation of Commission counsel in the drafting of the final report is without merit.

Firstly, the application is premature since the Commissioner has not yet requested their participation in the drafting of the final report and there is nothing on the record to suggest that he has made any decision as to what their role will be.

Even if the application were not premature, the CRCS’ objection to Commission counsel must be rejected. There was no objection raised as to the impartiality of the Commissioner himself. Indeed, the Attorney General for Canada raises the issue as going only to fairness and not to bias at all. I have been referred extensively to the record to illustrate the conduct of Commission counsel over two and a half years of hearings. The applicants seek to show that Commission counsel’s role has been inappropriate on the basis of allegations set out principally in the affidavit of Ms. Connie Berry. These allegations were all answered and explained by Commission counsel, Ms. Marlys Edwardh and Mr. Delmar Doucette, in their affidavits and cross-examinations. I am satisfied that Commission counsel have not overstepped their appropriate role in the Inquiry process to date.

Finally, I should note on this point that the Commissioner has clearly indicated that “this is my inquiry, not my counsel’s inquiry”.[124] He is, quite appropriately, directing the actions of Commission counsel. Therefore, it is up to him to decide, based on the principles which have been established by the case law, what role his counsel is to play. This question is not for me to decide at this point.

9.         CONCLUSION

All of the institutions and corporations who received section 13 notices and which may be named by the Commissioner in adverse findings of facts were major stakeholders in the Canadian blood system in the relevant period. They clearly knew, and certainly ought to have known, that the Inquiry would examine their conduct.

Of the seventeen natural person applicants who the Commissioner states may be named by him in adverse findings of fact,[125] fourteen are CRCS officials and three are Government of Canada officials. Of the fourteen CRCS officials, four were senior officials of the CRCS in Canada and ten were medical directors or deputy medical directors at CRCS regional centres across Canada, during the relevant period. All of these individuals, except a former CRCS medical director, Dr. Terrence Stout,[126] testified at the public hearings and had access to counsel. Three senior CRCS officials, Mr. Weber, Dr. Perrault and Dr. Davey were represented by their own counsel. A former CRCS official, Mr. Craig Anhorn, was also represented by his own counsel. All of the governments and their agencies, the CRCS and the pharmaceutical corporations were represented by counsel and, except for Armour, Baxter and the province of Quebec, who voluntarily limited their participation, all participated fully in the Inquiry.

Counsel for the Commissioner has confirmed to this Court that the forty-seven other natural person applicants who received notices will not be named in any adverse findings of fact resulting from such notices. They are listed in Appendix III to my reasons.[127] It would have been preferable that these notices be worded in such a manner as to make it clear that there would be no explicit unfavourable report or other findings of misconduct naming them in the report of the Commissioner.[128] Since the notices were intended to give these persons an opportunity to be heard if they wished to do so, they should not be set aside so as to deprive them of this right. However, it is appropriate for this Court to declare that there can be no explicit unfavourable report or other findings of misconduct naming them in the final report of the Commission based on these notices.

Further, this Court declares that all of the recipients of section 13 notices are to be given a full opportunity to be heard.

Finally, the Commission is directed to consider any requests for standing and funding which may be made by individual persons who have received section 13 notices.

In all other respects, all of the applications for judicial review are dismissed.

APPENDIX I

P.C. 1993-1879

Certified to be a true copy of a Minute of a Meeting of the Committee of the Privy Council, approved by His Excellency the Governor General on the 4th day of October, 1993.

The Committee of the Privy Council, on the recommendation of the Prime Minister, advise that a Commission do issue under Part I of the Inquiries Act and under the Great Seal of Canada appointing the Honourable Horace Krever, a Judge of the Ontario Court of Appeal, to be a Commissioner to review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry,

•     the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;

•     the roles, views, and ideas of relevant interest groups; and

•     the structures and experience of other countries, especially those with comparable federal systems.

The Committee do further advise that

1.   pursuant to section 56 of the Judges Act, the Honourable Horace Krever be authorized to act as a Commissioner on the inquiry;

2.   the Commissioner be authorized to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and in such places in Canada as he may decide;

3.   the Commissioner be authorized to rent such space and facilities as may be required for the purposes of the inquiry, in accordance with Treasury Board policies;

4.   the Commissioner be authorized to engage the services of such experts and other persons as are referred to in section 11 of the Inquiries Act at such rates of remuneration and reimbursement as may be approved by the Treasury Board;

5.   the Commissioner be directed to advise the Governor in Council by November 30, 1993 as to whether, in the opinion of the Commissioner, it is necessary in order to achieve the objectives of the inquiry to provide assistance with respect to the intervenor costs of any of the parties that may appear before the Inquiry, the extent of assistance where such assistance would, in the opinion of the Commissioner, be in the public interest, bearing in mind the fiscal restraints programme of the Government, and how such funding should be administered;

6.   the Commissioner be directed to submit an interim report in both official languages to the Governor in Council no later than May 31, 1994 on the safety of the blood system, with appropriate recommendations on actions which might be taken to address any current shortcomings;

7.   the Commissioner be directed to submit a final report in both official languages to the Governor in Council no later than September 30, 1994 with recommendations on an efficient and effective blood system in Canada for the future including:

•€€€€€€€€€ its managerial, financial, and legal principles as well as the medical and scientific aspects;

•€€€€€€€€€ the appropriate roles and responsibilities of the provincial/territorial and federal governments, the Canadian Red Cross Society, and other relevant organizations;

•€€€€€€€€€ the contractual and other relationship which should exist amongst the governments and organizations involved in the system;

•€€€€€€€€€ resource implications, including current allocations;

•€€€€€€€€€ powers that are appropriate to recommendations concerning responsibilities and authorities, and

•€€€€€€ actions required to implement these recommendations; and

8.   the Commissioner be directed to file the papers and records of the inquiry with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.

APPENDIX II

NATURAL-PERSON APPLICANTS

WHO MAY BE NAMED IN ADVERSE

FINDINGS OF FAC

Canadian Red Cross Society

Mr. George Weber

Dr. Rober Perrault

Dr. Martin Davey

Dr. Elizabeth Ross

Dr. Max Gorelick

Dr. Morris Blajchman

Dr. Raymond Guévin

Dr. Joseph E.C. Rousseau

Dr. John MacKay

Dr. Andrew Kaegi

Dr. Roslyn Herst

Dr. Terrence Stout

Dr. Noel Buskard

Mr. Craig Anhorn

Government of Canada

Dr. Leclerc-Chevalier

Dr. Norbert Gilmore

Dr. John Furesz

APPENDIX III

NATURAL-PERSON APPLICANTS WHO

RECEIVED NOTICE AND WILL NOT

BE NAMED IN ANY ADVERSE

FINDINGS OF FACT RESULTING

FROM SUCH NOTICE

Dr. Albert Joseph Liston

Dr. Alastair James Clayton

Mr. Jake Epp

Dr. Gordon A. Jessamine

Dr. Wark Boucher

Dr. David Pope

Ms. Monique Bégin

Dr. Maureen M. Law

Mr. David Kirkwood

Dr. Denys Cook

Dr. Emmanuel Somers

Dr. J.W. Davies

Mr. Bruce Rawson

J.L. Fry

Dr. A.B. Morrison

L’Honorable Camille Laurin

The Honourable Dennis Timbrell

The Honourable Larry Grossman

The Honourable Keith Norton

The Honourable Alan Pope

The Honourable Murray Elston

The Honourable Philip Andrewes

The Honourable Elinor Caplan

The Honourable Thérèse Lavoie-Roux

The Honourable Pierre-Marc Johnson

The Honourable Marc-Yvan Côté

The Honourable Guy Chevrette

The Honourable Stephen Rogers

The Honourable Jim Nielsen

The Honourable Peter Dueck

The Honourable John Jansen

The Honourable David Russell

The Honourable Marv Moore

The Honourable Nancy Betkowski

The Honourable Larry Desjardins

The Honourable Donald Orchard

The Honourable Charles Gallager

The Honourable Nancy Clark Teed

The Honourable Raymond Frenette

The Honourable Gerald Sheehy

The Honourable Ronald Frenette

The Honourable Joel Matheson

The Honourable Albert Fogarty

The Honourable Joseph Ghiz

The Honourable Keith Milligan

The Honourable Wayne Cheverie

The Honourable John Collins

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