Date: 19980123
Docket: T-18-98
BETWEEN:
JOHN FREDERICK WILLIAM WEATHERILL
Applicant
- and -
ATTORNEY GENERAL FOR CANADA and NICOLE JAUVIN
Respondents
REASONS FOR ORDER
JOYAL, J.
The Facts:
[1] The applicant before this Court is the Chairperson of the Canada Labour Relations Board ("CLRB"). Well-known and respected in labour relations and arbitration circles, he was appointed to his position on May 1, 1989. According to Section 10 of the statute governing the CLRB, the term of the appointment is 10 years and the incumbent may be only be removed for cause.
[2] There is no evidence before me that, over his first 8 years in office, the applicant had not fulfilled his functions dutifully. However, some incidents in his conduct surfaced in April 1997, when the Ottawa Citizen published negative allegations relating to what appears to be his excessive travel and hospitality expenses, as well as certain allegations of bias in his adjudicative functions.
[3] This prompted the then Minister of Labour to announce to Parliament, on April 10, 1997, that he was asking the Auditor General of Canada to review the applicant's expenses. At the same time, he requested the Ethics Counsellor to review the bias issue.
[4] On that latter issue, the Ethics Counsellor later reported that bias was not established, and that challenge was closed. On the expenses issue, however, the Report of the Auditor General of Canada, filed with Parliament on December 2, 1997, contained damaging statements. The Report outlined that, over a long period of time, the expenses claimed by the applicant for travel and hospitality were excessive and way beyond the levels fixed by Treasury Board for public servants in general.
[5] The Report prompted the then Minister of Labour to announce in the House of Commons that he was firing the applicant and that the legal steps required in order for the Governor in Council to remove the applicant had been initiated.
[6] The legal steps required were to set up an inquiry headed by the Deputy Clerk of the Privy Council, the respondent Nicole Jauvin, in order to review the Auditor General's Report, to receive representations from the applicant and to file a submission to Cabinet for consideration and appropriate action.
[7] Meetings were held during the month of December 1997, involving the inquiry officer, counsel for the applicant and members of the Auditor General's staff. These culminated on December 24, 1997, with the filing of the Deputy Clerk's Report to the Governor in Council, with the applicant being invited to make submissions thereon no later than January 16, 1998.
[8] Other factors enter into the picture. Currently before Parliament is Bill C-19, An Act to Amend the Canada Labour Code. It is the same bill which passed the House last year and which died on the Order Paper in the Senate. It is expected to get the quick approval of Parliament this time around. Section 9 of the draft Bill establishes the Canada Industrial Relations Board, and section 87 provides that members of the former Board, i.e. the CLRB, cease to hold office on the day sections 87 to 94 come into force. It is noted that, although the applicant's term of office would normally expire on May 1, 1999, it could conceivably come to an end much sooner.
Judicial Proceedings:
[9] On January 7, 1998, by way of an Originating Notice of Motion, the applicant applied to this Court for an Order declaring that the Governor in Council could not proceed to remove the applicant from his office without complying with section 69 of the Judges' Act, and that any inquiry thereunder has to be in compliance with that section.
[10] Concurrently, the applicant filed another motion, for injunctive relief staying any further proceedings currently underway pending a hearing and judicial determination of the main issue. It is the hearing of this motion which came to be heard before me in Toronto on January 20, 1998.
[11] It is acknowledged that the applicant must meet the threefold test which jurisprudence has long imposed in such proceedings, namely that there be a serious issue to be tried, that the applicant would suffer irreparable harm not compensable in damages if a stay were refused, and finally that the balance of inconvenience is greater on one if a stay is granted or on the other if it is refused.
Case for the Applicant:
A Serious Issue to be Tried
[12] Basic to the applicant's case is his reliance on section 69 of the Judges' Act, which provides for an inquiry process under the aegis of the Canadian Judicial Council in respect of persons who are not judges, or persons to whom section 48 of the Parliament of Canada Act applies, but who have been appointed pursuant to an enactment of Parliament to hold office during good behaviour. That process, however, can only be initiated following a request of the Minister of Justice.
[13] The text of section 69 et seq. of the Judges' Act reads as follows:
| 69. (1) The Council shall, at the request of the Minister, commence an inquiry to establish whether a person appointed pursuant to an enactment of Parliament to hold office during good behaviour other than
should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). |
69. (1) Sur demande du ministre, le Conseil enquête aussi sur les cas de révocation " pour les motifs énoncés sur les cas de révocation " des titulaires de poste nommés à titre inamovible aux termes d'une loi fédérale, à l'exception des:
|
| (2) Subsections 63(3) to (6), sections 64 and 65 and subsection 66(2) apply, with such modifications as the circumstances require, to inquiries under this section. |
(2) Les paragraphes 63(3) à (6), les articles 64 et 65 et le paragraphe 66(2) s'appliquent, compte tenu des adaptations nécessaires, aux enquêtes prévues au présent article. |
| (3) the Governor in Council may, on the recommendation of the Minister, after receipt of a report described in subsection 65(1) in relation to an inquiry under this section in connection with a person who may be removed from office by the Governor in Council other than on an address of the Senate or House of Commons or on a joint address of the Senate and House of Commons, by order, remove the person from office. |
(3) Au vu du rapport d'enquête prévu au paragraphe 65(1), le gouverneur en conseil peut, par décret, révoquer " s'il dispose déjà par ailleurs d'un tel pouvoir de révocation " le titulaire en cause, sur recommandation du ministre, sauf si la révocation nécessite une adresse du Sénat ou de la Chambre des communes ou une adresse conjointe de ces deux chambres. |
| 70. Any order of the Governor in council made pursuant to subsection 69(3) and all reports and evidence relating thereto shall be laid before Parliament within fifteen days after that order is made or, if Parliament is not sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting. |
70. Les décrets de révocation pris en application du paragraphe 69(3), accompagnés des rapports et éléments de preuve à l'appui, sont déposés devant le Parlement dans les quinze jours qui suivent leur prise ou, si le Parlement ne siège pas, dans les quinze premiers jours de séance ultérieurs de l'une ou l'autre chambre. |
| 71. Nothing in, or done or omitted to be done under the authority of, any sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections. |
71. Les articles 63 à 70 n'ont pas pour effet de porter atteinte aux attributions de la Chambre des communes, du Sénat ou du gouverneur en conseil en matière de révocation des juges ou des autres titulaires de poste susceptibles de faire l'objet des enquêtes qui y sont prévues. |
[14] Counsel for the applicant argues that this process is the only one which would ensure a complete, fair and impartial hearing to determine whether or not the applicant is fit to continue in office. Counsel states that the duties and functions of the applicant as head of the CLRB are as close as one can get to making his office a judicial one. He is, as such, entitled to protection from any intrusion into his independence or impartiality. In that regard, independence and impartiality are institutionalized and would appear to touch or affect all members of the Board.
[15] Further, says counsel, there are already elements in the inquiry which warp and twist the normal safeguards. In his view, these procedural obstacles can only be avoided by way of a judicial inquiry under section 69 of the Judges' Act. As mentioned earlier, members of administrative tribunals exercising judicial or adjudicative functions are entitled to the same investigative process into their conduct as are judges. The independence and impartiality of the appointee is deserving of protection so as to preserve the integrity of the institution. The requirement of laying the inquiry report before Parliament ensures public accountability and transparency of process. In this regard, counsel cites a number of decisions of the Supreme Court1 as well as one from the Quebec Court of Appeal2 in support of the great importance which jurisprudence attaches to the security of tenure which is to be enjoyed by judges if the guarantee of independence and impartiality, for purposes of section 11(d) of the Canadian Charter of Rights and Freedom, is to be maintained. It is to say that it is by the nature of an office that the processes of removal should be engaged.
[16] Finally, again referring to a section 69 process, counsel cites the Supreme Court decision in CBC v. Canada (L.R.B.)3, where the Court outlines the various processes, jurisdiction and attributes of the CLRB to endorse once again the hands-off policy of courts in dealing with labour board decisions unless these should be found to be patently unreasonable. At page 179, the Court said:
| [...] The labour relations tribunal, in its federal and provincial manifestation, is a classic example of an administrative body which is both highly specialized and highly insulated from review. Decisions of the federal Board are protected by a broad privative clause, found in s.22 of the Code. The Canada Labour Relations Board must develop a coherent and workable structure for the application of the numerous statutory provisions which govern the labour relations of the employers and employees whose operations fall within federal jurisdiction. In order for these workers and their employers to receive rapid resolution of their disputes in a manner which can be rationalized with their other rights and duties under the Canada Labour Code, the decisions of the Board cannot routinely be overturned by the courts whenever they disagree with the Board's treatment of an isolated issue. Thus the applicable standard of judicial review is one of patent unreasonableness so long as the Board has not committed a jurisdictional error. |
Irreparable Harm not Compensable by Damages
[17] Counsel for the applicant argues that, on the basis that the processes already initiated by the Deputy Clerk of the Privy Council and the Governor in Council are essentially ultra vires, harm to the applicant and to the institution of which he is chairperson would be serious and irreparable. Damages would not repair the prejudice suffered. The integrity of the CLRB and its members is up for bids. If the conduct of an Order in Council appointee is subject to inquiry, the nature of that inquiry must be commensurate with the independence and security of tenure otherwise enjoyed by that person.
Balance of Inconvenience
[18] In all circumstances, a delay in the final disposition will not be to the respondents' prejudice. The hearing on the main motion might be heard reasonably soon, and in the meantime, in any event, the applicant continues to exercise the functions of his office.
Case for the Respondents:
[19] The general response of counsel for the respondents is to submit that the applicant has not established prejudicial treatment, a serious issue, an arguable case or irreparable harm.
On the Facts:
[20] As a preliminary matter, counsel for the respondents points out that the judicial review application itself is premature. The Governor in Council has not yet determined whether cause exists to remove the applicant before the end of his term. In the circumstances, the respondents should be able to consider the report filed, together with the applicant's representations, and exercise the discretion which inherently vests in the Governor in Council under subsection 10(2) of the Canada Labour Code, which clearly states that a member of the CLRB is removable by Governor in Council for cause. In support, counsel cites the Bell v. Ontario Human Rights Commission4 and Canadian Pacific Air Lines Ltd. v. Williams5 cases.
[21] Furthermore, a process identical to the one in the present case was the subject of an inquiry by this Court in Wedge v. A.G. for Canada6. In that case, the Court found that the process met all the requirements of procedural fairness, and constituted a proper delegation of the Governor in Council's authority and a proper exercise of its discretion.
On the issue of Section 69 of the Judges' Act
[22] Counsel for the respondents firmly disagrees with the applicant's position in this respect. There is no requirement under the terms of the Judges' Act to refer the inquiry to the Canadian Judicial Council, pursuant to section 69. Counsel for the respondents argues rather that this is an option open to the Governor in Council under its authority exercised pursuant to subsection 10(2) of the Canada Labour Code.
[23] Furthermore, in a converse argument, counsel for the respondents states that "there is nothing in the Judges' Act which precludes Parliament considering the removal of a judge without any recommendation from the [Judicial] Council"7, and to which the learned judge adds: "Indeed, section 71 of the Judges' Act specifically preserves Parliament's power in this respect".
[24] This would mean that if section 71 preserves Parliament's power in respect of judges, it preserves the Governor in Council's power in respect of Order in Council appointees who are appointed during good behaviour. Consequently, the applicant's argument, to the effect that the section 69 procedure is exclusive and mandatory on the Governor in Council, cannot stand.
[25] Finally, suggests counsel for the respondents, there is no real evidence in the record to indicate that the applicant would suffer irreparable harm if the interim relief claimed herein is refused. First of all, it is speculative that he would suffer any harm at all. Further, should the applicant ultimately be removed, the way is open for him to seek to quash the Governor in Council decision and to claim damages for any loss suffered.
Findings:
[26] Having already traversed the well-prepared and ably-presented arguments of counsel, I need only observe that the characteristics of the proceedings which have been instituted are neither prosaic nor commonplace. Indeed rare are the occasions where either by Crown prerogative or by statute, the executive branch, namely the Governor in Council, is called upon to exercise its authority to inquire into and determine if the holder of a Crown office should or should not be removed. So rare, in fact, that there is little jurisprudence to guide the courts, each case referred to being substantially one of a kind.
[27] This means, in effect, that an issue of "behaviour" on the part of Order in Council appointments is determinable on a case by case basis, the Crown, through the Governor in Council, preserving for itself the ultimate judicial prerogative to determine when "behaviour" is or is not compatible with a particular office.
[28] Into this field of ultimate prerogative authority, which I venture to suggest has legitimate constitutional roots, the judicial arm must move gingerly and diffidently, and must eschew sweeping declarations. I note that MacKay J., in his decision in Wedge (supra), appears to limit considerably the area of judicial intrusion into this matter. He refers, among other things, to procedural fairness, to improper delegation of authority, and to a lack of opportunity to cross-examine witnesses. He further refuses to enter into an inquiry as to whether the determination by the Governor in Council as to the standard of "behaviour" or "cause" it applied in the case is or is not the proper one. This determination, he says, is a discretionary decision, reached by the Governor in Council in its exercise of the power delegated by Parliament.
[29] Notwithstanding the foregoing observations, the best that I can do with the stay application before me is to deal with the applicant's grounds to establish an arguable case. Let me say that at first blush, counsel's argument in that respect is neither frivolous nor vexatious. I have earlier referred in some detail to counsel's thesis, and as I admitted to him at close of his argument, I find it persuasive but not necessarily conclusive. I can only say that it has sufficient merit to pass the first stage of the three-fold test applicable in stay proceedings.
[30] On the issue of irreparable harm, however, I must reject the applicant's argument that "the loss of office itself and to which he is entitled" constitutes irreparable harm which cannot be compensated by damages. One cannot prejudge at this time what disposition might hereinafter be made of the case by the Governor in Council, but judicial review proceedings would be open to the applicant, as well as special and general damage claims.
[31] I should finally refer to the granting or refusal of interim relief in issues where the public interest is involved. If a stay be granted to the applicant, the Governor in Council, i.e. the public interest, is prevented from exercising its statutory and prerogative powers. In A.G. of Canada v. Fishing Vessel Owners' Assoc. of B.C. et al8, it was said that in such cases, the public interest itself suffers irreparable harm. Whether that applies to all cases is open to question, but I believe the jurisprudence is well established that when the respondent is a public authority, "one must look at the balance of convenience more widely and take into account the interests of the public in general, to whom these duties are owed"9.
Conclusion:
[32] I am grateful to counsel on both sides for the quality of their material and of their argument before me. I conclude, however, that the applicant has not convinced me that there are sufficient grounds to justify my intervention by way of a stay of proceedings. I must accordingly dismiss the application.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
January 23, 1998.
__________________1 Valente v. The Queen, (1985) 2 S.C.R. 673; The Queen v. Beauregard, (1986) 2 S.C.R. 56; Matsqui Indian Band v. C.P. Limited, (1995) 122 D.L.R. (4th) 129; and Reference re. Public Sector Pay Reduction Act (P.E.I.) s. 10, re. Provincial Court Act (P.E.I.), R. v. Campbell, R. v. Ekmecic; R. v. Wickman, Manitoba Provincial Judges' Assn. v. Manitoba (Minister of Justice), (1997) 150 D.L.R. (4th) 577 (S.C.C.).
2 Alex Couture Inc. v. Canada (A.G.), (1991) 83 D.L.R. (4th) 577 (Q.C.A.).
5 [1982] 1 F.C.R. 214 (F.C.A.).
6 Court file T-2812-94 (F.C.T.D.), judgement of MacKay J. dated June 23, 1997. Note : The argument under section 69 of the Judges' Act was not raised in that proceeding.
7 As per Strayer J. (as he then was) in Gratton vs. Canadian Judicial Council et al , (1994) 115 D.L.R. (4th) 81 at 106.
9 Smith v. Inner London School Authority, (1978) All E.R. 411 at 422.