Federal Court Decisions

Date: 20050429

Docket: T-404-05

Citation: 2005 FC 591

Ottawa, Ontario, this 29^th day of April, 2005

PRESENT:    MADAM PROTHONOTARY ARONOVITCH

BETWEEN:

THE RIGHT HONOURABLE JEAN CHRÉTIEN

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

ARONOVITCH P.

[1]                The Right Honourable Jean Chrétien, the Applicant in the underlying judicial review application, is challenging the refusal of the Honourable Justice John Gomery to recuse himself as Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the "Commission") on grounds that the parties appearing before the Commission have been denied their rights to procedural fairness and that there exists a reasonable apprehension of bias on the part of the Commissioner.

[2]                The motion now before me is brought on behalf of the Commissioner, under Rule 109 of the Federal Courts Rules, (the "Rules") for leave to intervene in the Applicant's court challenge. While it is opposed by the Applicant, the respondent Attorney General of Canada (the "Attorney General") takes no position on the motion to intervene.

[3]                The sole issues on this motion are whether the Commissioner should be granted leave to intervene, and if so on what terms. For the reasons that follow I find that it would be of assistance to the Court and in the public interest that the Commissioner be granted leave to intervene, on a limited basis, such as not to call into question the Commissioner's impartiality.

[4]                While I have concluded that the Commissioner ought not to speak to the law on the apprehension of bias or the law on the recusal of the head of an inquiry, it is appropriate that he address his jurisdiction and process. He will also have leave to appeal the final decision of the Court should the Attorney General choose not to.

THE FACTS

[5]                I will provide an account of the evidence adduced by the parties in support of this motion, starting with the facts presented by the Commissioner. The facts provided by all the parties are uncontested.

[6]                 The Commissioner has divided the Commission's examinations into two parts. Phase 1A explored the creation, purpose and objectives of the sponsorship program, the means by which it was administered and the extent to which it met standards of good management. Phase 1B, which is ongoing, explores where the sponsorship and advertising funds went, the extent to which there was value for money and whether there was any political influence and involvement. Closing submissions are scheduled for June 2005. The Commission's findings of fact are due on November 1, 2005, and its recommendations on December 15, 2005.

[7]                 On May 7, 2004, the Commissioner made an opening statement affirming his independence and issued rules of practice and procedure. On June 21, 2004, he took submissions from parties seeking standing before the Commission. The Applicant and the Attorney-General both sought and were granted standing by the Commissioner at that time.

[8]                 The Commissioner stated that the Attorney-General's role would be to "represent the interests of the Government of Canada in relation to the proceedings of the Commission" and provide "legal services" for federal public servants who were appearing or being interviewed.

[9]                 On January 31, 2005, counsel to the Applicant brought a motion at the Commission seeking the recusal of the Commissioner on the grounds of the existence of a reasonable apprehension of bias. H. Lorne Morphy, counsel to the Commissioner on this motion, also made submissions on the Commissioner's behalf during the hearing of the recusal motion. On February 1, 2005, the Commissioner dismissed the recusal motion as failing to establish a reasonable apprehension of bias, and declined to recuse himself.

[10]            The Applicant filed for judicial review of this decision in the Federal Court on March 3, 2005 seeking:

(i) an order in the nature of certiorari setting aside the Commissioner's decision on the Recusal Motion;

(ii) a declaration that there is a reasonable apprehension of bias in the Commissioner's performance of his duties; and

(iii) an order prohibiting the Commissioner from continuing to act as Commissioner.

[11]            On April 5, 2005, the Applicant was given leave to amend his judicial review application, with the consent of the Attorney General, to include additional allegations in support of the claim. These allegations relate to the Commissioner's recall of a public servant, Alex Himelfarb, Clerk of the Privy Council Office and Secretary to Cabinet, for further questioning.

[12]            This recall took place in February 2005. The respondent was notified of it by Commission counsel, Bernard Roy Q.C., on February 15, 2005. The respondent wrote a letter formally objecting to the recall on the ground of irrelevance, on February 25, 2005. The respondent renewed this objection on February 28, 2005, when Mr. Himelfarb re-appeared before the Commission. Both the Applicant and the respondent made the argument that Mr. Himelfarb's testimony was irrelevant. The Commissioner overruled the objection and allowed the questioning. When Mr. Himelfarb had finished his testimony, the Applicant reiterated the shared position on irrelevance.

[13]            There is a second judicial review application currently before the Court involving the Commissioner. It was brought by the Honourable Alfonso Gagliano, another person who was granted standing before the Commission. This application concerns the Commissioner's refusal to allow the cross-examination of Charles Guité based on statements made to the Public Accounts Committee of the House of Commons, and the issue of whether those statements are protected by Parliamentary privilege. The Commissioner was granted intervener status in this proceeding by order dated February 17, 2005.

[14]            Turning to the Applicant's evidence on this motion, clippings and statements from a variety of media sources are adduced that set out the position taken by the Prime Minister, the Right Honourable Paul Martin, and his Ministers. This evidence spans the period prior to the recusal motion to the April 21, 2005 televised appearance of the Prime Minister.

[15]            The evidence reflects the public pronouncements of the Prime Minister that it was his government that established the Commission and that he has an unequivocal commitment to support the Commissioner in completing his mandate.

[16]            There are added statements on behalf of the government made by the Minister of Public Works, the Honourable Scott Brison, and the Attorney General of Canada, the Honourable Irwin Cotler, in the House of Commons. The pronouncements of these Ministers are similarly supportive of the Commissioner and state the commitment of the government to cooperate with the Commissioner, and to see him remain in office to complete his work.

[17]            Finally, the Applicant recounts the position taken by the Attorney General at the hearing of the recusal motion. Before the Commissioner, counsel for the Auditor General made lengthy submissions opposing the motion. These submissions were wholly endorsed by the Attorney General who took the position that the Applicant had not met the necessary legal test for recusal and asked the Commissioner to reject the recusal motion.

The scope of the proposed intervention

[18]            As to the scope of the Commissioner's proposed intervention, he has requested standing to make argument and address the following issues:

(a)                 the law of reasonable apprehension of bias as it relates to federal commissions of inquiry;

(b)                the scope of mandate of the Commission as set out in the Terms of Reference;

(c)                 the jurisdiction and procedural discretion of the Commission, including in relating to the Commission Rules, the calling of witnesses and the admissibility of evidence;

(d)                the law as to whether the Commissioner should be prohibited from proceeding with the inquiry pursuant to his mandate; and

(e)                 the applicable standard of review.

(f)                  to have a right of appeal. [emphasis mine]

For reasons that follow, the intervention of the Commissioner will be restricted essentially to the matters addressed above at items b) c) and f).

ANALASIS

[19]            The right to intervene, unless authorized by statute requires leave to be granted under Rule 109 of the Rules. The principal element of the Rules is that a proposed intervener must indicate how their participation "will assist the determination of a factual or legal issue related to the proceeding". This has been held to mean that the party is not merely to restate what others will be arguing, but to assist the Court by bringing an additional or a different perspective to the proceeding.^[1]

[20]            There are factors identified by the Court as generally relevant in the exercise of the Court's discretion in granting intervener status, which need not all be satisfied.^[2] These include: whether the proposed intervener is directly affected by the outcome; whether a justiciable issue and a veritable public interest exists; whether there is an apparent lack of any other reasonable or efficient means to submit the question to the Court; whether the position of the proposed intervener is adequately defended by one of the parties to the case; and whether the interests of justice are better served by the intervention of the proposed third party.^[3]

[21]            Tribunals, however, are not placed on the same footing as other proposed interveners and have been allowed only a limited role in the judicial review of their decisions. Courts have consistently recognized that it is improper, indeed unseemly, for an impartial tribunal to be given the opportunity to defend the correctness of its decision, essentially taking sides with one of the parties to the dispute. The jurisprudence underscores that there are good public policy grounds to preclude a tribunal, which is required to be and be seen to be impartial, from becoming an advocate in its own cause.^[4]

[22]            In Northwestern Utilities, supra, Justice Estey, speaking for an unanimous bench of the Supreme Court, wrote the following:

It has been the policy in this Court to limit the role of an administrative tribunal whose decision is at issue before the Court, even where the right to appear is given by statute, to an explanatory role with reference to the record before the Board and to the making of representations relating to jurisdiction.

He went on to explain what he meant by jurisdiction:

In the sense the term has been employed by me here, "jurisdiction"does not include the transgression of the authority of a tribunal by its failure to adhere to the rules of natural justice."[emphasis mine]

[23]            The rules of natural justice that Justice Estey refers to, the notion of procedural fairness, requires that decisions be made free from an apprehension of bias on the part of an impartial decision maker.^[5] Where, as in this case, a denial of procedural fairness is alleged, a tribunal will either be denied leave to intervene altogether, or is called upon to be circumspect.^[6] The Ontario Court of Appeal makes this point in Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 1426 (C.A.) (QL),at paragraph 40. Where the essential issue in a court review is whether a tribunal treated a particular litigant fairly, "impartiality may suggest a more limited standing¼"^[7]

[24]            The Commissioner says he does not wish to intervene in this judicial review to defend his decision to recuse himself, nor to respond, as an adversary would, to the specific allegations made against him. He acknowledges that it would be improper for him to address the merits of the case against him. Rather, he says, the purpose of the proposed intervention is to preserve the independence of the Commissioner from the Attorney General, and to assist the Court.

Whether the Commissioner may address the law as it relates to the apprehension of bias and the removal of heads of independent inquiries

[25]            The Commissioner begins his argument by emphasizing that it is crucial that the Commissioner be, and appear to be, independent.^[8] The Commissioner fears that if the Attorney General is the sole advocate of the Commissioner before the Court at the same time that he is a party before the Commission to represent the interests of the Government of Canada, on an ongoing basis, the Commissioner will be perceived as not being independent of the Crown. In light of the public interest that his independence be maintained, the Commissioner suggests that he be allowed, before the Court, to add submissions from his own independent perspective to those of the Attorney General, as regards the law of bias and the law relating to the removal of the head of an inquiry. To this the Commissioner adds that his intervention would also bring a perspective on the relevant law that is independent and distinct from that of the Attorney General.

[26]            It is argued on behalf of the Commissioner that the circumstances presented by this case take it out of the jurisprudence normally applicable to the intervention of tribunals in the review of their own decisions. There are no adverse parties before the Commission, as there would be before a tribunal. The Applicant and the Attorney General both have standing and are in a parallel, not adversarial, position before the Commission. The Commissioner submits that there is no lis, or dispute, between the Applicant and the Attorney General that would make it problematic for the Commissioner to intervene.

[27]            Finally, the Commissioner argues that unlike the ordinary situation of a judicial review of a tribunal decision, where the parties will not appear before the tribunal again, in this case the Attorney General will continue to appear before the Commission following the hearing of the judicial review.

[28]            There is no question, in my view, and the Commissioner does not contest, that the Attorney General is properly named as party respondent in this proceeding. The Applicant points to Rule 303 of the Rules, which states that at first instance, an applicant is to name as a respondent the party directly affected by the order sought in the application, other than the tribunal. Rule 303(2) then provides that where there are no other persons who can be named, the Attorney General shall be named as a respondent. Whether under the former or the latter, it is clear that the Attorney General is named as a proper respondent in this application to speak to the merits of the judicial review.

[29]            In that connection, reference is made to my decision in Hoechst, supra note 6, where the Attorney General, named party respondent under Rule 303 of the Rules, made the point that he appeared as respondent in the public interest, the role and mandate of the Attorney General being to assist the Court in reaching a decision that accords with the law. The Commissioner points out that the Attorney General, in this case, is not independent and does not represent the public interest in the same sense as in Hoechst, supra by virtue of the interest it represents before the Commission.

[30]            What is more, says the Commissioner, the Court recognized in Hoechst, supra that an agency or tribunal whose decision is under review is entitled to expect that there will be a party present at the judicial review to defend the reasonableness of the tribunal's decision. The Commissioner points out that, in this case, not only is the Attorney General not independent by virtue of its vested interest, but the Commissioner has no way of knowing the position that the Attorney General will take on judicial review, or whether he can expect a vigorous defense. This underscores, for the Commissioner, not only that he be allowed to supplement the Attorney General's submissions as the applicable law with his own, from the perspective of the Commissioner, but also, that he be able to appeal from any adverse decision. The Commissioner says he cannot count on the Attorney General to do so.

[31]            The Attorney General responds that he has put in a Notice of Appearance to the application and intends to oppose it. The position of the Attorney General is that he is not an "advocate" for the Commissioner but rather the defender of the Commissioner's decision, as the Attorney General is often called upon to do as respondent, in the public interest. That is indeed what the Attorney General is called upon to do, from time to time, in the case of boards and commissions established under federal legislation, notwithstanding that the Crown is often a party litigant before the same board or commission.

[32]            As well, I take the point made by the Applicant that the evidence of the public pronouncements of the Prime Minister and the Ministers of the Crown, in addition to the conduct of the Attorney General in the recusal motion before the Commission bear out that the Attorney General will be vigorous in defending the Commissioner and in pursuing an appeal.

[33]            Indeed, it is hard to accept the Commissioner's comment that he does not know what the Attorney General will do or if an appeal will be pursued. The evidence is to the contrary. There is nothing half-hearted in the position taken by the Attorney General to date as to whether Justice Gomery should recuse himself.

[34]            More importantly, as the Applicant and the Attorney General point out, there is a lis, or dispute, between them on the issue of bias and the recusal of Justice Gomery. The Applicant and the Attorney General hold, and have maintained, diametrically opposing and adversarial positions on the issues.

[35]            It is for the litigant parties to debate the law. I fail to see how, in this debate, there can be yet another independent or essentially neutral presentation by the Commissioner as to the law of bias or as to the law governing the removal of the Commissioner.

[36]            The Commissioner's apprehended bias and whether he will be precluded from proceeding with his inquiry are precisely the matters at issue on the merits in this judicial review. It is difficult to conceive of any submission of law, by the Commissioner, on these issues that would not be self-interested or directed to the merits. The Commissioner's impartiality in my view is best protected by precluding his participation in the very subject area in controversy between Applicant and the Attorney General.

[37]            Finally, I am not persuaded that the Commissioner's submissions as to the applicable law, over and above those of the parties, can bring anything new or helpful to the Court's deliberation on the merits.

Whether the Commissioner may address his jurisdiction and the standard of review

[38]            The Commissioner wishes to address the jurisdiction of the Commission. Counsel for the Commissioner concedes that the reasonableness of his decision to recuse himself which may broadly be viewed as a jurisdictional issue, is not jurisdictional in the sense of that term in the case law.

[39]            Counsel on behalf of the Applicant takes the position that there is no jurisdictional issue for the Commissioner to address. The issue of the "reasonableness" of the decision which the Supreme Court stated in Paccar, supra note 4, that a board or tribunal with special expertise may address as an intervener, is not relevant here. If I understand his position correctly, he is referring to the jurisprudence which states that the standard of review analysis has no application to a procedural fairness question, as per Binnie J. in Canadian Union of Public Employees (CUPE) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100.

[40]            I agree that there is no basis here to grant leave for the Commissioner to speak to the broader jurisdictional issue or to the standard of review. That said, I am satisfied that that there may be a jurisdictional issue in respect of the recall of the Clerk of the Privy Council, that I have referred to above, and that the Commissioner should have leave to address the scope of the mandate of the Commission, and his jurisdiction and the procedural discretion of the Commission under the Commission Rules, including as to the calling of witnesses, and the admissibility of evidence.

Whether the Commissioner may appeal from an unfavorable decision by the Court

[41]            Ordinarily an intervener is not granted the right to pursue an appeal should the decision in the proceeding in which it is intervening be contrary to its interests.^[9]

[42]            One of the considerations in determining whether interveners ought to be granted a right of appeal is whether there is an expectation that the respondent would have any vital interest or motivation to prosecute an appeal with the same vigor as the intervening parties would do.^[10] Then, the appeal is generally limited to the issues which the intervener was given leave to address below. All the more so in the case of a tribunal or board which ought not to be an advocate in its own cause on appeal, anymore than at first instance.

[43]            As I have said, all the evidence is to the effect that this application will be robustly defended, in the same manner that the Attorney General defended the recusal motion before the Commissioner. That said, it is in the public interest and the interests of justice that the matter be prosecuted to an eventual appeal, if necessary. I will accordingly grant the Commissioner leave to appeal from an unfavorable decision, in the event that the Attorney General will no do so. The appropriate scope of the Commissioner's role in the appeal will be left to be determined by the Court of Appeal.

Conclusion

[44]            I conclude that it will be in the public interest and will assist the Court in its deliberations on the merits of this judicial review for the Commissioner to be granted leave to address the scope and mandate of the Commission as set out in the Terms of Reference, and the jurisdiction and procedural discretion of the Commission in relation to the Commission Rules, the calling of witnesses and admissibility of evidence. In addition, the Commissioner will have leave to appeal in the event the Attorney General chooses not to, subject to the redetermination of the scope of its intervention by the Court of Appeal.

"Roza Aronovitch"