Federal Court Decisions

Date: 20051118

Docket: T-668-04

Citation: 2005 FC 1545

Ottawa, Ontario, the 18^th day of November 2005

Present:           The Honourable Mr. Justice Simon Noël

BETWEEN:

JEAN PELLETIER

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]                On March 30, 2004, the applicant Jean Pelletier filed before this Court an application for judicial review of an order of the Governor General in Council dated March 1, 2004, bearing number P.C. 2004-158 ("termination order"). This order, adopted pursuant to subsection 105(5) of the Financial Administration Act, R.S.C. 1985, c. F-11 (the FAA), terminated the applicant's appointment at pleasure as Chair of the Board of Directors of Via Rail Canada Inc. ("VIA Rail").

[2]                In the conclusions of his memorandum of fact and law, the applicant is asking the Federal Court for the following:

(a)         An order in the nature of certiorari, quashing or setting aside the termination order;

(b)         An order declaring the full force and effect of the appointment by the Governor General in Council dated July 31, 2001, and bearing number P.C. 2001-1294, appointing him as Chair of the Board of Directors of VIA Rail ("appointment order"), until the end of its term on July 31, 2006.

ISSUES

-           What is the scope of the duty of procedural fairness on the Governor General in Council when she chooses to dismiss a person appointed at pleasure?

-           Was this duty fulfilled toward the applicant?

-           If there was a breach of procedural fairness, what remedy must be granted in this case?

FACTUAL BACKGROUND AND THE PARTIES' EVIDENCE

[3]                This application involves only the following facts.

1.         Generally

[4]                The applicant was the Chief of Staff at the Office of the Prime Minister of Canada from November 1993 until May 2001. On July 31, 2001, the appointment order appointed him to hold office at pleasure for a five-year period as Chair of the Board of Directors of VIA Rail. The Governor General in Council's power to make appointments is provided under subsection 105(5) of the FAA, c. F-11, which reads as follows:

105 (5) Each officer-director of a parent Crown corporation shall be appointed by the Governor in Council to hold office during pleasure for such term as the Governor in Council considers appropriate. [emphasis added]

105 (5) Les administrateurs-dirigeants d'une société d'État mère sont nommés à titre amovible par le gouverneur en conseil pour le mandat que celui-ci estime indiqué. [je souligne]

[5]                On September 1, 2001, the applicant took office at VIA Rail, as appears from an agreement signed on November 7, 2001, between the applicant and the Crown corporation. This contract is included in the respondent's record.

[6]                In his affidavit dated April 28, 2004, Mr. Pelletier said that he had [translation] ". . . always fulfilled his duties to the full satisfaction of the Government of Canada and VIA Rail".

2.         Myriam Bédard's letter dated February 13, 2004

[7]                Myriam Bédard, an Olympic medalist, was employed by VIA Rail from January 2001 until January 18, 2002. On February 13, 2004, Ms. Bédard sent a letter to the Office of the Prime Minister of Canada, Paul Martin, in which she stated that in 2001, she was first [translation] ". . . sent to Groupaction as a trainee . . .", then [translation] ". . . forced to resign . . ." by the [translation] "management of VIA Rail Canada", on January 11, 2002. In that letter she also made many remarks about the predominant atmosphere at VIA Rail, referring to the circumstances surrounding the end of her employment. Further, she referred specifically to the applicant by implicating him. She stated that she had given him a project ensuring savings of 5 million dollars for VIA Rail's marketing program. She ended her letter explaining that she wished to resume her position at VIA Rail. This letter is an exhibit in the applicant's record.

[8]                On April 8, 2004, a report ("investigation report") filed by an arbitrator appointed by Paul Côté, then Chair and acting President and Chief Executive Officer of VIA Rail, determined rather that Ms. Bédard had voluntarily left her employment. This report concluded the following with respect to Mr. Pelletier's role in the departure of Ms. Bédard from VIA Rail:

The case at hand represents a tragedy of enormous proportions. Mr. Pelletier was a respected public figure, who was accused by Ms. Bédard in February of 2004 of being an instrument in her alleged forced resignation two years earlier, in January of 2002. This report must conclude that Mr. Pelletier had no involvement in Ms. Bédard's departure from Via-Rail.

This report and its conclusions were not contested judicially by the parties involved. The report is therefore final.

3.         Correspondence between the applicant and Alexander Himelfarb

[9]                The respondent's evidence includes an exchange of correspondence between the Privy Council Office and Mr. Pelletier. There are two letters.

[10]            The first letter, signed by the applicant, is dated February 23, 2004, and is addressed to Alexander Himelfarb, Clerk of the Privy Council and Secretary to the Cabinet. This letter refers to the publication of an article appearing in the National Post that same morning, which suggested that sanctions could be brought against Mr. Pelletier. In the letter, the applicant called for a meeting with Mr. Himelfarb and [translation] ". . . senior officials that Mr. Himelfarb deemed appropriate to have by his side" in order to be heard before such sanctions were taken. Mr. Pelletier states in his letter that he is available to testify under oath [translation] ". . . at any time in this sponsorship case and in all appropriate proceedings", while reiterating that he had already informed the Prime Minister's Chief of Staff of his availability in 2002. He also asked Mr. Himelfarb to confirm that his legal fees would be assumed by the Government of Canada.

[11]            The second letter, dated February 26, 2004, is Mr. Himelfarb's reply to the applicant's letter dated February 23. In his letter, Mr. Himelfarb pointed out to the applicant that the Government of Canada had not yet announced any disciplinary action involving him and responded to Mr. Pelletier's question regarding solicitor's fees. The letter does not state that disciplinary action is planned against the applicant, or that the Governor General in Council was dissatisfied with him.

4.         The interview and article by La Presse

[12]            Also on Thursday, February 26, journalist François Cardinal, from the newspaper La Presse, met Ms. Bédard regarding the allegations made by her in her letter to the Prime Minister dated February 13, 2004. The same day, the applicant also gave an interview to the journalist.

[13]            The next day, Friday, February 27, 2004, the newspaper Le Soleil (affiliated with the newspaper "La Presse") published an article ("article by La Presse")entitled "Victime du scandale des commandites" ["Victim of the Sponsorship Scandal"] in which the journalist quoted several statements by the applicant in response to Ms. Bédard's allegations. Other comments by the applicant concern Ms. Bédard personally. I reproduce here the relevant passages from the article by La Presse:

[translation]

Victim of the Sponsorship Scandal

Olympic medalist Myriam Bédard says that she was forced to resign from VIA Rail.

In a letter sent to Prime Minister Paul Martin on February 13, the former bi-athlete criticized the "unethical atmosphere that reigned in the marketing department of Via-Rail, where she had been employed since January 2001. Stating that she was not a "thief" or a "criminal", she says that "she dug her own grave" by working honestly with the railway company.

When he was Chair of VIA's Board of Directors, Jean Pelletier characterized it all as "lies". The Office of the Prime Minister, Paul Martin, stated that the allegations were being taken "very seriously" . . .

Marc Lefrançois, the President and Chief Executive Officer of Via, who was suspended by Mr. Martin this week following the sponsorship scandal, also denied the facts stated by Ms. Bédard. . .

Mr. Pelletier as well as Mr. Lefrançois claimed that Myriam Bédard was taking advantage of the scandal for her personal gain. "She wants to take advantage of the situation, stated Mr. Pelletier. . . . She is lying shamelessly.

"I do not want to be mean," he added. "This is a poor girl who deserves pity, who doesn't have a spouse, as far as I know. She is struggling as a single mother with economic responsibilities. I pity her, in the end." . . .

Mr. Lefrançois refused to say why Ms. Bédard was no longer working for VIA Rail. But according to Jean Pelletier's version of the facts, she was simply no longer valued by her supervisors.

"What they tell me is that this person did not fit in with the team," he stated. "It was not working at all. She criticized what her boss was doing. She had her own ideas . She was told that if she was not happy, she might be more comfortable at an advertising agency."

"But you know" Mr. Pelletier continued "Olympic medalists are people who find it difficult after being acclaimed at the Olympics, when they find themselves back in the real world. It's not easy to be a regular person, for these people who have been in the spotlight."

In that same article, other comments by Ms. Bédard are reported. She says that she was threatened, she witnessed wrongdoings, and gives her own version of the facts regarding her departure from VIA in January 2002.

[14]            In his affidavit, the applicant justifies the statements that he made about Ms. Bédard. He explained that his comments were issued "so that the journalist would not be too hard on Myriam Bédard in the article that he was about to write". Relying on excerpts from the investigation report, the respondent's counsel suggested that Mr. Pelletier was instead trying to avoid having his comments result in disciplinary action. The audio cassette filed into evidence by the applicant corresponds essentially to the statements attributed to the applicant in the La Presse article. However, the article did not mention the fact that on many occasions during the interview, Mr. Pelletier said that he was trying to spare her, and joked about Ms. Bédard, trying to downplay the seriousness of the allegations. The conversation ended as follows:

[translation]

Jean Pelletier: Do not be too hard with the comments that I am making about her, because I do not want to hurt her, but I'll tell you quite frankly that, uh, she is exaggerating quite a bit. (laughter).

François Cardinal: Fine. Okay, Mr. Uh . . .

Jean Pelletier: I pity her, in the end.

4.         The conversation of the representatives of the Privy Council Office on Friday, February 27, 2004

[15]            The day that the article was published, a telephone conversation took place between Mr. Yves Côté and the applicant. According to Mr. McCutcheon's affidavit dated May 27, 2004, Mr. Yves Côté is counsel and legal advisor for the Clerk of the Privy Council and Secretary to the Cabinet.

[16]            The applicant's affidavit gives a less detailed account than that of Mr. McCutcheon. There is no significant contradiction between the two affidavits, which do not mention the length of the telephone conversation.

[17]       According to the applicant, the purpose of Mr. Côté's call was to verify if the statements reported in the article by La Presse had actually been made. The applicant said to Mr. Côté that a directive had just been issued to publish a statement of apology, and that that could be verified with the Director of Public Affairs of VIA Rail.

[18]       The respondent's account is as follows. Around 3:15 p.m., Mr. Himelfarb directed Mr. Yves Côté and Mr. McCutcheon to call the applicant in order to get his explanations and comments regarding [translation] "the incident reported in an article published in the newspaper La Presse".

[19]       The first call was made around 3:15 p.m. by Mr. Côté, on speaker phone and in the presence of Mr. McCutcheon. According to Mr. McCutcheon, Mr. Pelletier's administrative assistant told Mr. Côté that the applicant was absent, while specifying that he would be able to return the call promptly.

[20]       The applicant returned Mr. Côté's call five minutes later, around 3:15 p.m.. Mr. Côté then introduced himself and mentioned the presence and the title of Mr. McCutcheon. The applicant said that he remembered Mr. McCutcheon very well. Mr. Côté then explained the purpose of the call, i.e. [translation] "to get explanations and comments regarding the article by La Presse". Mr. McCutcheon's affidavit summarizes what the applicant allegedly stated:

[TRANSLATION]

11. With respect to the facts alleged by Myriam Bédard against VIA Rail . . .:

(a) that he was not implicated in these facts;

(b) that VIA Rail was currently reviewing the case;

(c) that the Vice-President of Marketing and the Head of Strategies at VIA Rail was responsible for answering to Ms. Bédard's allegations;

(d) that a press release by VIA Rail would be published on Monday [March 1st], regarding the matter [that release, which was not filed in evidence, was issued on Friday, February 27, i.e. the same day as Mr. Pelletier's public apology];

12. With respect to the remarks about Myriam Bédard attributed to him by the article by La Presse, Mr. Pelletier stated:

(a) that his remarks were inappropriate ;

(b) that a personal press release would be issued in the minutes that followed;

[21]            Mr. Côté then asked Mr. Pelletier if he had anything else to say about the incident reported in the newspaper La Presse. The applicant replied that [translation] "the news release [the affidavit does not specify whether it was VIA Rail's release regarding Ms. Bédard's departure or Mr. Pelletier's statement of apology] was self-explanatory and that he had nothing else to add." This is allegedly how the call ended.

5.         The statement of apology

[22]            Also on February 27, VIA Rail issued the press release attached to the applicant's affidavit, in which the applicant made a public apology to Myriam Bédard for the statements that he made during his interview with François Cardinal.

[23]            The applicant explained in his affidavit dated April 28, 2004, that the apology was made [translation] "immediately" and [translation] "of his own initiative". He added that it was meant to [translation] "remove any embarrassment which may have been caused to Ms. Bédard as a result of the publication of those comments ".

[24]       According to the respondent, this press release was issued between 3:15 p.m. and 3:50 p.m., i.e. between the first call by Mr. Côté and the applicant's return call.

6.          The events of March 1, 2004

[25]       Two days later, namely Monday, March 1, 2004, the events occurred quite quickly. They were described by the applicant and were not disputed by the respondent.

(a)        The calls from the federal Minister of Transport

[26]       First, the applicant states in his affidavit that he had two telephone conversations with the Minister of Transport at the time, Tony Valeri.

[27]       During the first call, around 8:50 a.m., Mr. Valeri informed the applicant that a decision would be made regarding him, without giving further detail[s] regarding the ground[s] and nature of the decision. The applicant explained that during that call from Minister Valeri, he had not had the opportunity to respond when he was informed that a decision would be made regarding him. Mr. Pelletier added that he attempted to obtain details regarding the grounds and nature of the decision that was pending, but that the Minister told him that [translation] "he could not say anything at all".

[28]       During the second call, around 11:50 a.m., Mr. Valeri informed the applicant of the decision that had been made to terminate his appointment, adding that an order would be adopted accordingly.

(b)        The calls by Mark Reynolds to the Office of the Prime Minister

[29]       The same day, Mark Reynolds, from the Office of the Prime Minister of Canada, also spoke with the applicant twice on the telephone. Mr. Pelletier's affidavit describes the content of these conversations.

[30]       During the first call, around noon, Mr. Reynolds informed the applicant of his suspension. Mr. Reynolds first advised the applicant that he was suspended until March 5, 2004, immediately changing his mind and stating that the suspension would continue until March 15, 2004. Mr. Reynolds then simply told the applicant that a decision would be made before that last date and that, until that time, Mr. Pelletier [translation] "had nothing else to do".

[31]       During the second call, 10 minutes later, Mr. Reynolds told the applicant that the situation had evolved, that he was dismissed and that he would receive a message to that effect by facsimile later in the afternoon.

[32]       No ground for dissatisfaction with the applicant was given during these calls.

(c)        The letter, the termination order and press release making the termination public

[33]       Around 3:00 p.m. the same day, the applicant received by facsimile a letter from Mr. Valeri, accompanied by the termination order. The letter in question reads as follows:

[TRANSLATION]

Sir,

I am following up on our conversation of this morning.

Attached you will find a copy of an order by the Governor General in Council, on the recommendation of the Minister of Transport pursuant to subsection 105(5) of the Financial Administration Act, terminating your appointment as Chair of the Board of Directors of VIA Rail Canada Inc., made by order P.C. 2001-1294 dated July 31, 2001.

Sincerely yours,

(signed)

The Hon. Tony Valeri, P.C. Deputy

Encl.

c.c.: Paul Côté . . .

[34]       The termination order reads as follows:

Whereas, by P.C. 2001-1294 on July 31, 2001, Jean Pelletier was appointed chairman of the board of directors of VIA Rail Canada Inc., effective September 1, 2001, to hold office during pleasure;

Whereas the Governor in Council has lost confidence in Jean Pelletier as chairman of the board of directors of VIA Rail Canada Inc.;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 105(5) of the Financial Administration Act, hereby terminates the appointment of Jean Pelletier as chairman of the board of directors of VIA Rail Canada Inc., made by P.C. 2001-1294 on July 31, 2001, effective immediately.

[35]       Also on March 1, 2004, the Government of Canada made the applicant"s termination public through a press release (press release dated March 1). This release reads as follows:

No. GC 001/04

For release March 1, 2004

GOVERNMENT OF CANADA

TERMINATES APPOINTMENT OF VIA CHAIRMAN

OTTAWA - On behalf of the Government of Canada, Transport Minister Tony Valeri today announced the termination of the appointment of Jean Pelletier as Chairman of the Board of Directors of VIA Rail Canada Inc.

The termination of the appointment of Mr. Pelletier is effective immediately.

"The comments made last week by Mr. Pelletier regarding Myriam Bédard were totally unacceptable," said Prime Minister Paul Martin. "I asked people who had knowledge about possible wrongdoings to come forward. And when they do, I expect them to be treated fairly. This was clearly not the case. My government came to office with a commitment to change the way things work. The actions we are taking today reflect that commitment."

Transport Minister Valeri said: "Last week I stated that the government would review the comments of the VIA Chairman and would take appropriate action. It is completely inappropriate for the chairman of a Crown corporation to make comments of this nature about someone identifying wrongdoing in the workplace."

VIA Rail Canada Inc. is a federal Crown corporation wholly owned by the Government of Canada.

ANALYSIS

[36]       This is an application for judicial review based on the alleged default by the Governor General in Council to respect the procedural guarantees applicable to the applicant. Specifically, the Court has before it an application for an order of certiorari setting aside the termination order and an application for an order declaring the full force and effect of the appointment order.

[37]       The writ of certiorari is intended to enable the Court to verify the legality of a decision, in particular when that decision was made in breach of a duty to act fairly. As established by the Supreme Court of Canada in Martineau v. Matsqui Institution [1980] 1 S.C.R. 602, 106 D.L.R. (3d) 385, at paragraph 57:

Certiorari is available . . . to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

[38]       The jurisdiction of the Federal Court to decide this application is based on sections 18 and 18.1 of the Federal Courts Act, R.S. 1985, c. F-7.

[39]       The respondent is not disputing the applicant's claim that he was entitled to procedural fairness. I will therefore not address this aspect at length. To decide if the applicant is entitled to relief, first one must determine the scope or nature of the duty of procedural fairness imposed on the Governor General in Council. Next, it must be determined whether the applicant received the procedural guarantees applicable in this case. If so, the application for judicial review must be dismissed. If not, the applicable remedy would have to be determined.

1.         The existence of a duty of procedural fairness

[40]       In Knight v. Indian Head Sch. Div. No. 19 [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26, the tests were established to determine the existence of a duty of procedural fairness. The method used by the majority consists in verifying first if a duty to act fairly exists as a result of the nature of the decision, of the employer-employee relationship and of the effect of the decision on the employee. Second, one must verify whether that duty is modified by the law or the contract.

(a)         The duty to act fairly

[41]       The existence of a general duty to act fairly resulting from the common law is assessed in light of three factors:

(i)          the nature of the decision which must be made by the authority in question;

(ii)         the existing relationship between that authority and the individual; and

(iii)        the effect of that decision on the rights of the individual (Knight v. Indian Head Sch. Div. No. 19, supra, at page 669).

[42]       Generally, such a duty is imposed "on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual"(Cardinal v. Kent Institution [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78 at paragraph 14).

[43]       The nature of the decision tends to favour the applicant. This was a decision by the Governor General in Council to dismiss the applicant as Chair of the Board of Directors of VIA Rail. That decision contemplates one individual in particular and is not legislative or general in nature. Further, it was an final decision, not a preliminary decision. These are factors that tend to trigger the duty to act fairly. (Knight v. Indian Head Sch. Div. No. 19, supra, at page 670).

[44]            The nature of the relationship must also be considered. According to the Supreme Court of Canada, the fact that a position is occupied at pleasure does not preclude compliance with the duty to act fairly. Just because a person may be dismissed in the absence of a duty to establish just cause does not mean that this person is not entitled to any procedural guarantees. The substance of the decision should not be confused with the procedure which ought to be followed in reaching it, the Court notes (Knight v. Indian Head Sch. Div. No. 19, supra, at page 674).

[45]            Finally, the effect of the decision on the employee must be considered. On this point, there is no doubt that there must be a duty to act fairly when a person's employment is at stake (Knight v. Indian Head Sch. Div. No. 19, supra, at page 677) and in those cases "[a] high standard of justice is required" (Kane v. University of British Columbia, [1980] 1 S.C.R. 1105, (1980) 110 D.L.R. (3d) 311, at paragraph 13).

[46]            The nature of the decision, the relationship between the Governor General in Council and the applicant and the effect of the impugned decision on him lead to the conclusion that the Governor General in Council was bound by a duty to act fairly.

(b)         The legislation and the contract

[47]            In Knight v. Indian Head Sch. Div. No. 19, supra, at pages 677 and 681, the Supreme Court cites Kane v. University of British Columbia, supra, in which it was held that absent express language or necessary implication in the legislation or the contract, the rules of natural justice could not be abrogated. Since I fail to see in either the contract or the legislation provisions or stipulations that could extinguish or modify the duty of procedural fairness of the Governor General in Council, and the existence of this duty is not disputed, I conclude that this duty exists.

2.          Nature of the duty of fairness

[48]            In Baker v. Canada, [1999] 2 S.C.R. 817, (1999), S.C.J. No. 39, at page 837, the Supreme Court of Canada notes the flexible and variable nature of the duty of procedural fairness. Madam Justice L'Heureux-Dubé writes that "All of the circumstances must be considered in order to determine the content of the duty of procedural fairness." I do not think it is necessary to engage in an analysis of these factors, as the nature of the duty of procedural fairness as it applies to the dismissal of persons appointed at pleasure was clearly identified in Knight v. Indian Head Sch. Div. No. 19, supra, at page 683. This duty is minimal: the employer must communicate to the employee the reasons for his dissatisfaction and give the employee an opportunity to be heard (See Cardinal v. Kent Institution, supra, at paragraph 22; Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 S.C.R. 311, (1978) 88 D.L.R. (3d) 671, at paragraph 27; Reglin v. Creston (Town) [2004] B.C.J. No. 1218, 2004 BCSC 790, at paragraphs 43 and 46; Woodley v. Yellowknife Education District No. 1 [2000] N.W.T.J. No. 31, 2000 NWTSC 30, at paragraph 22; Charles v. Université de Montréal (February 14, 1990), Montréal, 500-05-012566-897 (S.C.), at pages 18 and 20). The respondent's opinion is that these two procedural guarantees were complied with in this case, while the applicant thinks they were breached. In the following section, therefore, we will look at both of these procedural guarantees and verify whether they were complied with.

3.          Compliance with the duty of fairness

[49]            The question whether the applicant knew or ought to have known that disciplinary action was being contemplated against him is at the heart of the litigation and directly affects his ability to know the reason(s) for the employer's dissatisfaction and to respond. I will therefore examine, first, the question of whether the applicant knew or ought to have known that disciplinary action was being contemplated against him, and then discuss the procedural guarantees as such.

(a)         Applicant's knowledge that disciplinary action was being contemplated against him

(i)          Explicit mention

[50]            The record indicates that the applicant was informed only belatedly that disciplinary action was being contemplated against him. According to the applicant's affidavit, which is uncontradicted on this point, he was explicitly made aware of this when Mr. Valeri telephoned him on March 1, 2004.

(ii)         Actual notice

[51]            The respondent submitted to the Court certain passages from the judgments in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Knight v. Indian Head Sch. Div. No. 19, supra, and Re Cardinal Insurance Co. and Minister of State (Finance) 44 N.R. 428, [1982] F.C.J. No. 516 (F.C.A.) to show that the Governor General in Council did not need to explicitly inform the applicant that disciplinary measures were being contemplated against him. According to the respondent, the applicant [translation] "knew or ought to have known . . . that his position was at stake" (paragraph 39 of the Respondent's memorandum of fact and law). Each of the relevant extracts from the aforementioned judgments are reproduced, making the necessary distinctions.

Moreau-Bérubé v. New Brunswick (Judicial Council)

[52]            The respondent drew the Court's attention to paragraph 79 of the judgment in Moreau-Bérubé v. New Brunswick (Judicial Council), supra. In that case, Madam Justice Arbour of the Supreme Court of Canada thought Judge Moreau-Bérubé's right to be heard had not been violated merely because she had not been explicitly informed that a sanction might be imposed on her at the conclusion of a disciplinary process. Paragraph 79 of the judgment reads as follows:

In the circumstances of this case, I cannot accept that the Council violated Judge Moreau-Bérubé's right to be heard by not expressly informing her that they might impose a sanction clearly open to them under the Act. The doctrine of legitimate expectations can find no application when the claimant is essentially asserting the right to a second chance to avail him- or herself of procedural rights that were always available and provided for by statute. Moreover, the inquiry panel had no authority to make a recommendation to the Council about the appropriate sanction. This is made abundantly clear in the Act, where s. 6.11(1) states, "the panel shall report to the chairman its findings of fact and its findings as to the allegations of misconduct, neglect of duty or inability to perform duties of the judge whose conduct is in question". This contrasts with the decision-making role of the Council once the panel's report is complete, as stipulated in s. 6.11(4) which states that "[b]ased on the findings contained in the report . . . the Judicial Council may . . . dismiss the complaint, . . . issue a reprimand . . ., or . . . recommend . . . that the judge be removed from office". Regardless of the fact that the panel made a recommendation that it was not mandated to make, the Council had a clear and plain discretion to choose between three options. I do not believe that the respondent, a judge, who had legal advice throughout, could have misapprehended the issues that were alive before the Judicial Council. She never asserted making such an error until it was raised by Angers J. on judicial review.

[53]            In Moreau-Bérubé, the controversial remarks were made by the judge on February 16, 1998, and she was removed on April 15, 1999. A lengthy period had elapsed between the time when the misconduct was committed and the time when the disciplinary sanction was imposed on her. A number of complaints had been made against her to the Judicial Council under the Provincial Court Act, R.S.N.B. 1973, c. P-21, soon after the remarks were made, and she had the right to be informed of this under that Act. So she knew exactly why she was being criticized. The disciplinary process had been under way for a long time and it would have been superfluous to inform Judge Moreau-Bérubé that sanctions might be imposed on her under the Act. Furthermore, the judge had been allowed to participate in a process enabling her to a full hearing and to be assisted by counsel.

[54]            In my opinion, these circumstances have nothing to do with the applicant's case, in which the commencement of the dismissal process was not explicitly announced. The events occurred too quickly and in an extremely informal way, without the presence of Mr. Pelletier's counsel, and even without the possible outcomes of the discussions having been clearly put on the table. In these circumstances, I think the fact that the applicant had not been informed of the pending disciplinary measures is of greater significance than in Moreau-Bérubé.

Knight v. Indian Head Sch. Div. No. 19

[55]            According to the respondent, the following extract should persuade me that the applicant need not have been explicitly informed that disciplinary measures were being contemplated in his regard. The relevant passages from Knight v. Indian Head Sch. Div. No. 19, supra, read as follows, at pages 684 to 686:

The trial judge and the Court of Appeal disagreed on whether the respondent was provided with reasons for his dismissal and the opportunity to be heard. In the Court of Queen's Bench, Lawton J. . . . writes at p. 283:

The failure to agree on a one-year contract, which from the beginning was the major reason for the negotiations, finished them. But there had been negotiations up until that time -- the lines of communication had been open and Knight, through his solicitor, had been actively involved in presenting his case to the Board. He was being heard. By August, everything that had to be said had been said by both parties.

He therefore concluded that the procedure followed by the appellant Board was fair. The Saskatchewan Court of Appeal found that the respondent got neither reasons for his dismissal nor a hearing. [...] Sherstobitoff J.A. found for the court, at p. 313, that:

The trial judge seemed to proceed on the assumption that the appellant knew, or should have known, that if he did not agree to a new one-year contract that he would be fired and we must accept that finding of fact. However, the fact remained that he was never told that he would be fired unless he accepted a one-year contract until he was actually fired. The trial judge was wrong in accepting the implied threat of termination on the part of the employer as a notice of intention to terminate and the failed negotiations as reasons for dismissal as required by the rules of procedural fairness. It is difficult to think of anything more unfair to an employee than to tell him that he must accept a threat which he should have inferred from the employer's conduct as formal notice of intention to terminate, and must treat a purported renegotiation of an employment contract as a hearing into whether or not he should be terminated. [Emphasis added.]

The disagreement between the two courts below lies therefore not so much in the content of the communication but rather in the significance to be attached to the negotiations between the parties.

. . .

In the present case, the trial judge found as a fact that the respondent knew or should have known why the appellant Board was unhappy with his employment contract and that if he did not accept a one-year contract he would be dismissed. In my view, the record amply supports this finding, which was not disputed by the Court of Appeal. I recognize the Court of Appeal's concern that the respondent was never officially notified of the reasons for his dismissal, but it is clear that he was informed of those reasons through his meetings with the appellant Board, sometimes personally, sometimes through his solicitor. In conformity with s. 2 of the contract of employment, the respondent was present at the appellant Board's meeting on May 30, 1983, where his contract was not renewed, and had the opportunity to make representations if he so wished. Further, during the summer, the respondent's attorney met twice with the appellant Board to negotiate a new contract, and all issues appeared to have been settled except as to the duration of the contract, the respondent pressing for a minimum two-year term while the Board insisted on a one-year contract. Both parties appear to have been adamant on this point and it can be presumed that it caused the negotiations to fall through. Since I accept the trial judge's finding of facts that "everything that had to be said had been said" (at p. 283), the requirement of the formal giving of reasons and the holding of a hearing would achieve no more, in my respectful view, than to impose upon the appellant Board a purely procedural requirement, against the above-stated principles of flexibility of administrative procedure.

In my view, the appellant Board has made itself sufficiently available for discussion through meetings with the respondent and his lawyer so that each party's concerns were made fully known to the other. This can only lead to the conclusion that the respondent knew the reasons for his dismissal and was provided with every opportunity to be heard. [Emphasis added.]

[56]            It is to be noted that in Knight, almost three months had elapsed between the time when some members of the Board of Education of the Indian School Division No. 19 of Saskatchewan ("Board") informed the respondent Knight that his contract would not be renewed and dismissed him. Knight had been given an opportunity to be heard during a Board session and negotiations had been held between his lawyer and the Board.

[57]            The facts in the case before this Court are quite different. On February 26, 2004, the applicant was reassured by Mr. Himelfarb's letter, according to which [translation] "the Government of Canada had not yet announced any action involving him". In that letter, Mr. Himelfarb does not mention that a process possibly leading to disciplinary action is under way, nor does he mention any reasons whatsoever for dissatisfaction. Between the telephone call from the representatives of the Privy Council and the dismissal, there elapsed only one weekend (two days), and the dismissal process was much speedier than in Knight v. Indian Head Sch. Div. No. 19, supra, where there were many real opportunities to make representations.

Re Cardinal Insurance Co. and Minister of State (Finance)

[58]            The respondent further submits that the applicant's professional and political experience is a relevant consideration that should persuade this Court that the applicant should have known that disciplinary action was being contemplated and that he was aware of the reason(s) for the employer's dissatisfaction. The respondent relies on some extracts from authorities and on the judgment in Re Cardinal Insurance Co. and Minister of State (Finance), supra, at paragraph 26:

It is common ground that whether a notice in a particular quasi-judicial or administrative proceeding is sufficient depends upon the circumstances of the case. Counsel for the Attorney General points to the above quotations as supporting his contention that Messrs. Mendez and Katzman were both well aware of the actions open to the Minister if he had fears about the protection available to the policyholders. He also pointed out that Mr. Mendez as a highly experienced insurance executive and Mr. Katzman as a solicitor and knowledgeable director of an insurance company would be well aware of the possible actions that the Minister might take when reference was made in the January 28 message to subsection 103.2(2). I agree with those submissions.

[59]            The circumstances of the Cardinal case are distinguishable from those in which the applicant found himself. First, it should be noted that in Cardinal it was not a dismissal or a discharge but a decision by the Minister of State (Finance) to restrict the certificate of registration of an insurance company and to take control of the company's assets. Also, more than 20 days had elapsed between the notice of hearing and the decision and a number of meetings had been held in the interval between the parties and an interested third party company. Furthermore, the legislation clearly listed the Minister's powers in cases where the assets of an insurance company were insufficient, and the notice of hearing explicitly referred to them. Finally, the record indicated that one of the insurance company's representatives was aware of the measures at the Minister's disposal. It was possible to determine based on the circumstantial evidence that the principles of natural justice had not been breached by the Minister, as the insurance company was sufficiently informed and had an opportunity to be heard. In short, the judge held that a minor defect in the notice of hearing was not sufficient in the circumstances to challenge the entire process.

[60]            These circumstances do not at all resemble those in the case at bar. It is possible that an experienced man like the applicant was aware for some time that certain disciplinary action was being contemplated against him. It is conceivable that he learned of this from another source, although I have no evidence before me in this regard. It is also plausible that the call on February 27 brought it to his attention. The article in the National Post that is referred to in the applicant's letter to Mr. Himelfarb might also have made the applicant realize that his position was at stake. The fact that the applicant made some harsh comments about Myriam Bédard, then changed his tune in an attempt to forestall adverse consequences of the La Presse article (that's the interpretation given by the respondent to a passage in the investigation report, p. 43) might also suggest that Mr. Pelletier knew he had just made a mistake. Finally, the press release dated March 1st, 2004, refers to a statement made by Minister Valeri which reads as follows : . . . The government would review the comments of the VIA Chairman and take appropriate action." No evidence was filed by the defendant regarding the time, the circumstances or the content of that statement. Also, there is no evidence indicating that the applicant had knowledge of it and his affidavit, which is not contradicted on this point, says that he was never informed by the Government of Canada or Via Rail that his termination was being contemplated (paragraphs 17 and 19). Furthermore, the respondent's counsel submitted orally at the hearing that when Mr. Côté made the call on Friday, February 27, 2004, he did not know that disciplinary measures were being considered against Mr. Pelletier. Was the statement in question made publicly or not? Was it made before or after the call on February 27, 2004? The evidence filed by the respondent does not support the finding that Mr. Pelletier had factual knowledge of the statement. In short, a number of scenarios could be considered but the Court must not rely on them. This is not its role.

[61]            The Court must confine itself to the facts and refrain from attempting to guess the state of mind of the applicant at the time the facts occurred. Mr. McCutcheon's affidavit indicates that the reason for the call on February 27, 2004, was not to inform Mr. Pelletier of the reason(s) for dissatisfaction with him but rather to obtain his explanations or comments concerning the article in La Presse, or [translation] "in relation to the incident related in an article published in the newspaper La Presse". I am not persuaded that the purpose of the call on February 27, 2004, was sufficiently clear. On the contrary, it was very general in nature. Was it a call to find out whether Mr. Pelletier had been misquoted in his comments about Ms. Bédard? Was it a call to check whether Mr. Pelletier was involved in Ms. Bédard's departure from VIA Rail? Or was it a call to warn him, to reprimand him for his comments and to make him realize that he should not have made them? Was it a call concerning "inflated invoices" by Groupaction?

[62]            If the purpose of the call was to hear the applicant as a last resort as to potential disciplinary measures, there was no institutional constraint to prevent Mr. Himelfarb from writing this in his letter of February 26, or Mr. Côté from saying so clearly during the telephone conversation of February 27, 2004. It was also possible to hear the applicant on March 1, 2004, once he was informed by Minister Valeri that disciplinary measures would be taken. Both the Privy Council office and the Minister preferred to let uncertainty persist in this regard.

[63]            Counsel for the respondent argued at the hearing that Mr. Côté was not the decision-maker and could not have known that disciplinary action was being contemplated. If only the Governor General in Council, as decision-maker, could have known that disciplinary action was being contemplated, I have trouble understanding how the applicant could be presumed to have known. In my opinion, an individual's experience can certainly compensate for minor shortcomings in procedural fairness not affecting the procedure followed when the process as a whole was respected in light of all of the circumstances. The applicant's experience must certainly be considered, but we must ensure that in doing so, the procedural guarantees established by the Supreme Court are not extinguished. There is nonetheless a minimum to meet. Before withdrawing that minimum, the evidence must be clear and specific. In this case, the evidence indicates that the applicant had not been informed that the Governor General in Council was contemplating disciplinary action given the applicant's statements regarding Ms. Bédard in the article by La Presse. It was only on March 1, 2005, that he was informed [translation] ". . . that a decision would be made regarding him". . . i.e. less than three hours after he was informed of his termination by the Minister of Transport.

Summary of the Case Law Submitted

[64]            I believe that we must conclude from the passages quoted above that an employee need not be informed that disciplinary action against him or her is being considered in all circumstances. While this is not an exhaustive list, the factors that may be considered include the legislative context, the fact that a disciplinary process is already underway, the discussions that have taken place between employer and employee, the time that has passed and the employee's experience. These circumstances may make it obvious to the employee that disciplinary action against him or her is being considered. In short, the context must be considered.

[65]            In this case, I am of the opinion that the circumstances in which the applicant found himself are entirely unlike the circumstances in Moreau-Bérubé, Knight and Cardinal. There was no disciplinary process underway in his case, and the events occurred in a sudden flurry. The call on February 27, 2004, was relatively general in nature and seemed more like a call to talk things over with the applicant than a last effort to hear what he had to say when the intention was to take disciplinary action against him. I find based on my analysis of the evidence that neither the applicant or his representative had this second scenario in mind.

[66]            It is clear from the case law that an employee who is facing disciplinary action is entitled to know that the purpose of the forum in which he is speaking is to hear him on that subject. The employee must grasp the seriousness of the situation. That knowledge could result from an express statement or from the context. Otherwise, the employee's right to be made aware of the reasons for the employer's dissatisfaction and to answer those reasons will be seriously affected. Something that should be understood to be a statement of the reasons for dissatisfaction made with the intention of taking disciplinary action may sound like mere criticism or an attempt to obtain information. The employee's right to answer is also affected, because the employee does not necessarily grasp the importance of the forum he or she is participating in and accordingly does not have a genuine opportunity to make his or her own case.

[67]            I shall address the two minimum procedural guarantees that are applicable in this case having regard to the foregoing.

(b)        Right of the Employee to be Made Aware of the Reasons for the Employer's Dissatisfaction

(i)         Express Statement

[68]            Overall, the evidence was that the applicant was at no time expressly informed of the reason or reasons for the dissatisfaction on the part of the Governor General in Council that led to his removal.

[69]            First, the correspondence between the applicant and Mr. Himelfarb between February 23 and February 26, 2004, mentioned neither the fact that the employer was dissatisfied with the applicant's work nor what the reason for the dissatisfaction was.

[70]            Nowhere in the affidavits referring to the content of the call from the Privy Council representatives on February 27, 2004, is there a statement that the reasons for the dissatisfaction on the part of the Governor General in Council were stated to Mr. Pelletier. The affidavit of Mr. McCutcheon dated May 27, 2004, states that during that telephone conversation his colleague, Mr. Côté, explained to the applicant [translation] "that he was calling in response to the publication of an article about Myriam Bédard that had appeared that morning in La Presse, to obtain Mr. Pelletier's explanation or comments concerning that article". Mr. Pelletier's affidavit states that Mr. Côté asked him whether he had said what was reported in La Presse. No additional evidence reporting the content of that conversation was filed with this Court.

[71]            The first call from Mr. Valeri on March 1 did not mention any reason for dissatisfaction, although at that time Mr. Pelletier was informed that a decision would be made about him. The evidence is further that the applicant asked Mr. Valeri to tell him the reason or reasons for dissatisfaction, and his request was denied.

[72]            Even once he had been informed that his appointment would be ending, the plaintiff was not informed of the reason or reasons, either in the second call from Mr. Valeri or in a subsequent call from Mr. Reynolds. That evidence was uncontradicted. And the order of removal was silent as to the reasons for the dissatisfaction on the part of the Governor General in Council, in that it stated only that the Governor General in Council had "lost confidence" in the applicant. In short, from February 13, 2004, to the time when he was removed from office, Mr. Pelletier was not expressly informed at any time of the reason or reasons for the employer's dissatisfaction. That is in fact what was stated in paragraphs 17 and 19 of the applicant's affidavit of April 28, 2004, which was not disputed.

(ii)        De Facto Knowledge

[73]            The facts referred to in the La Presse article may be divided into two groups, which correspond to the reasons for removal cited in the evidence. First, there were the allegations made by Myriam Bédard regarding VIA Rail and the applicant. There were several aspects to those allegations. Ms. Bédard claimed, inter alia, that Mr. Pelletier and VIA Rail management had forced her to resign (the investigation report later concluded that Ms. Bédard had resigned from VIA Rail voluntarily). Ms. Bédard also had harsh words for the atmosphere and the way things were done at the Crown corporation. And second, the article reported the comments made by the applicant about Ms. Bédard.

[74]            For the reasons that follow, I am of the opinion that it cannot be assumed that the applicant had de facto knowledge of the reason or reasons for the Governor General in Council's dissatisfaction.

[75]            First, the information about the reason or reasons for the Governor General in Council's dissatisfaction that was given in the respondent's factum, in the respondent's argument at the hearing, in Mr. McCutcheon's affidavit and in the press release of March 1 is not all the same. At the hearing, the respondent argued that the only reason for dissatisfaction was the comments made by the [applicant] about Myriam Bédard. Then we see in paragraph 11 of Mr. McCutcheon's affidavit that the conversation between Mr. Côté and the applicant on February 27 related to the two aspects of the article in La Presse. The press release of March 1, 2004, also connects the two aspects of the conversation and prematurely concludes that there was wrongdoing on the applicant's part. The respondent's factum says, in some places, that the Governor General in Council was dissatisfied because of the two aspects of the article in La Presse or more than one reason (paragraphs 16, 17, 23, 38, 39, 40, 44, 48, 49(c), 49(d)), and in others that there was only one reason. In the places where the factum refers to only one reason, it appears in some places that the single reason was connected with [translation] "the incident reported the article in La Presse" (the allegations made by Ms. Bédard regarding VIA Rail and the applicant) (paragraphs 9, 18), and in others that it was connected with Mr. Pelletier's comments about Ms. Bédard (paragraphs 19, 36, 49(b)). In short, the reason or reasons for the employer's dissatisfaction were not clear. As well, we see in the investigation report that one allegation on which the decision was based was false and that the decision-maker had reached premature conclusions from that allegation (see the investigation report, p. 153, and the press release of March 1, 2004: "It is completely inappropriate for the chairman of a Crown corporation to make comments of this nature about someone identifying wrongdoing in the workplace".) Counsel for the respondent in fact acknowledged this at the hearing.

[76]            The respondent argued at the hearing that the applicant in fact knew the reason or reasons for the Governor General in Council's dissatisfaction, again relying on the decisions cited above: Moreau-Bérubé v. N.-B., Knight v. Indian Head Sch. Div. No. 19 and Re Cardinal Insurance Co. and Minister of State (Finance). The respondent argued that the applicant [translation] "knew, or should have known, that senior government authorities had expressed specific and identified reasons for dissatisfaction with him".

[77]            The distinctions among those three decisions made earlier, and the facts of this case, may be reiterated. Plainly, an employee need not be expressly informed of the reasons for dissatisfaction with him or her in all circumstances. Here again, the context (the law, the discussions between the parties, representation by counsel, the employee's experience) may mean that the person in fact knew the reasons for dissatisfaction with him or her, particularly if there was only one reason and the dissatisfaction was necessarily based on an isolated incident. In this case, there were several reasons that could have led to Mr. Pelletier's removal, and the reason or reasons in question were at no time clearly stated. Even on March 1, Mr. Valeri refused to tell the applicant the reason or reasons for dissatisfaction with him. If the reason or reasons had been as clear as the respondent contends, then there would have been nothing to prevent Mr. Côté, Mr. McCutcheon, Mr. Valeri or Mr. Reynolds from revealing it to the applicant at some point or other between February 27, 2004, and March 1.

(c)        Opportunity to Answer

[78]            As is apparent from the foregoing analysis, the circumstances are not such as can make up for the significant defects in the procedure followed for removing the applicant in this case. In my opinion, the applicant therefore had no real opportunity to answer.

[79]            The call on February 27, 2004, was too general to enable the applicant to state his views because he did not know that this forum could lead to disciplinary action being taken, and he cannot be presumed to have known this, given the circumstances. In addition, he did not know precisely what the reason or reasons for the Governor General in Council's dissatisfaction were, and he cannot be presumed to have known them. Moreover, he had very little time to prepare for speaking to the Privy Council Office representatives and he had not been able to consult counsel, given the short time.

[80]            Nor did the telephone conversations on March 1 with Mr. Valeri and Mr. Reynolds give him an opportunity to be heard. Mr. Pelletier's affidavit, which was not disputed on this point, states that he did not have [translation] "a chance to reply" during the first conversation with Mr. Valeri. In the calls from Mr. Reynolds, which were made after Mr. Valeri had informed the applicant that he was being removed, there was nothing that could have remedied the failure of the Governor General in Council to allow the applicant to exercise his right to answer.

[81]            As a final point, the following passage from Knight v. Indian Head Sch. Div. No. 19, supra, at page 675 is useful in understanding the exact meaning of the right to answer:

In both the situation of an office held at pleasure and an office from which one can be dismissed only for cause, one of the purposes of the imposition on the administrative body of a duty to act fairly is the same, i.e., enabling the employee to try to change the employer's mind about the dismissal.

[82]            In this case, I do not believe that the [applicant], despite his experience, had a real opportunity to change the employer's mind regarding the disciplinary action that was being considered against him, or to respond to the reason or reasons for dissatisfaction. His right to answer was therefore compromised.

[83]            Ultimately, it is not up to this Court to determine whether the reasons cited by the applicant might excuse what he said about Ms. Bédard or to decide whether the conclusions in the investigation report are true. Nor need this Court ask itself, in deciding whether the employee was given a right to answer, whether the applicant's justifications would have affected the Governor General in Council's decision. As Dickson J. wrote in Cardinal v. Kent Institution, supra, at paragraph 23:

. . . 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 right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

[84]            All in all, the applicant was not provided with the minimum procedural guarantees that apply in this case. It is important to note that the duty of procedural fairness is a minimum in the sense that no lesser guarantees can be offered (Knight v. Indian Head Sch. Div. No. 19, supra, at page 683; Nicholson v. Haldimand-Norfolk (Regional) Police Commissioners, supra, at paragraph 27; Reglin v. Creston (Town), supra, at paragraphs 43 and 46, Woodley v. Yellowknife Education District No. 1, supra, at paragraph 22; Charles v. Université de Montréal, supra, at pages 18 and 20).

[85]            It is difficult to imagine any lesser guarantees than the right to be informed of the reasons for the employer's dissatisfaction and the right to answer. Accordingly, the respondent's argument based on Baker v. Canada, supra, that the decision-making body must be allowed the necessary latitude to establish its own procedures, must be rejected. Paragraph 22 of the decision in Baker v. Canada, supra, provides an explanation of the way in which the duty of procedural fairness must be met, even when, as in this case, the minimum duty applies:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [Emphasis added]

[86]            The Court's objective is not to require that the Governor General in Council follow complex, costly procedures that are incompatible with that body's nature; rather, it is to ensure that the procedure is not violated with impunity under the guise of flexibility.

[87]            I do not believe that finding for the applicant amounts to expanding or narrowing the minimum procedural guarantees that apply in the case of individuals appointed to hold office during pleasure. The evidence was that the process was neither fair nor open. On the contrary, it was conducted in an opaque and hasty manner, without the applicant being informed that disciplinary action was being considered against him. Once he was informed that such measures might be taken, he was expressly denied the right to know the reasons or reasons for the employer's dissatisfaction with him and he was denied the right to answer them. For these reasons, I am of the opinion that the applicant was not provided with the procedural guarantees to which he was entitled.

4.          Last Minute Arguments

[88]            In oral argument, counsel for both parties made an additional argument that had not been addressed in their memoranda of fact and law.

[89]            The applicant's argument was that, having regard to subsection 105(6) FAA, which provides for consultation with the board of directors before an appointment is made, it is self-evident that there must be consultation before removal.

[90]            The respondent's new argument was that in the telephone conversation on March 1, 2004, Mr. Valeri could not have informed the applicant of the reasons for dissatisfaction because he was bound by Cabinet secrecy.

[91]            As noted above, these two arguments were new and the other parties did not have an opportunity to reply to them. In Qureshi v. Canada (Minister of Citizenship and Immigration) [2000], 195 F.T.R. 9, [2000] F.C.J. No. 1300 (F.C.), at paragraphs 10 to 12, Tremblay-Lamer J. wrote:

. . . [c]ounsel for the plaintiff tried to present new arguments at the hearing which did not appear anywhere in his principal memorandum or in his reply memorandum. I refused to hear his arguments. In my opinion, such a tactic by counsel is not acceptable since it prejudices the opposing party, who is obviously taken by surprise. Further, it is clear that the Court is not in a position to fully assess the merits of a new argument suddenly raised at the hearing. . . .

I accept that there may be very special circumstances in which it is in the interests of justice to hear a plaintiff on a new argument. In my opinion, such a situation requires an adjournment to give the defendant an opportunity to prepare adequately. . . .

One final observation: the structure of the Federal Court Rules, 1998 provides for the filing of a memorandum in support of the reasons given by a plaintiff as the basis of the application for leave and application for judicial review. It is on the basis of the reasons given in this memorandum, and if applicable in the defendant's memorandum and the memorandum in reply, that the application for leave will or will not be granted by a judge of the Court. Apart from exceptional cases, this is one more reason why in my opinion it is not appropriate to disregard the arguments for which leave has been given and present new arguments at the hearing without the latter being the subject of the same consideration at the time of the application for leave. [citations omitted]

I share the position stated by Tremblay-Lamer J. In this case, the new arguments were dealt with in the briefest of manners, counsel were taken by surprise, and counsel on both sides objected. In all fairness, those objections are upheld, and the Court will not consider the arguments, given that the parties neither requested an adjournment nor asked the Court to allow them to file supplementary memoranda regarding them.

5.         Remedy

[92]            Subsection 18.1(3) of the Federal Courts Act lists the powers of the Federal Court to order a remedy in an application for judicial review:

(3) On an application for judicial review, the Federal Court may:

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut :

a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou don't il a retardé l'exécution de manière déraisonnable;

b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute decision, ordonnance, procédure ou tout autre acte de l'office fédéral.

[93]            The respondent did not dispute the jurisdiction of the Federal Court to decide the issues in this case or to grant a remedy. It is therefore not necessary to deal with this aspect at length. The definition of the expression "federal board, commission or other tribunal" found in subsection 2(1) F.C.A. leaves no doubt as to the fact that decisions of the Governor General in Council based on a federal statute are decisions covered by that expression. A number of Canadian courts have ruled on this question in the past (see, for example, Saskatchewan Wheat Pool v. Canada (Attorney General), 113 Sask. R. 99, [1993] S.J. 436 (C.A.), at paragraphs 8 and 9 ; R. v. Cummins [1997] B.C.J. No. 2540 (C.S.), at para 42; Aviation Roger Forgues v. Canada [1999] Q.J. No. 1094 (S.C. Civ.), at paragraphs 8 and 9). A remedy may therefore be granted in respect of a decision made by the Governor General in Council that was based on the FAA. A decision of the Governor General in Council that is made in violation of the rules of procedural fairness does not have the force of law (Wells v. Terre-Neuve [1999] 3 S.C.R. 199, [1999] S.C.J. No. 50) and a remedy may be granted in respect of such decisions.

CONCLUSION

[94]            The Governor General in Council had a duty to act fairly in the circumstances. That duty included, at a minimum, the right to know the reason or reasons for dissatisfaction that might have justified the disciplinary action and the opportunity to be heard. The evidence shows that Mr. Pelletier was not informed of the reason or reasons for dissatisfaction with him and that he did not have an opportunity to be heard. He did not become aware of the reasons for dissatisfaction to justify his removal until he read the press release announcing his removal on March 1, 2004, at about 3:00 p.m., once the decision had been made. The implications of this case go beyond the people involved. Rules that are associated with fundamental justice are in issue. The Governor General in Council is required to inform a person appointed at pleasure, with complete transparency, that disciplinary action is being considered, and to disclose the reasons for dissatisfaction and give the person an opportunity to answer. That is a minimum requirement.

[95]            Accordingly, I order that the Order in Council removing the applicant from his position as Chairman of the Board of Directors of VIA Rail be set aside. It is not necessary for this Court to declare the appointment order to be in force, as the applicant requested, because that order has not been subsequently amended or cancelled by a valid order. The applicant's case will therefore be referred back to the Governor General in Council to take its course. Because no costs were requested by the applicant, no order as to costs will be made.

                                               ORDER

THE COURT ORDERS:

-           That the Order of the Governor General in Council dated March 1, 2004, bearing number P.C. 2004-158, be set aside and the applicant's case be referred back to the Governor General in Council.

              "Simon Noël"                

         Judge

Certified true translation

Kelley A. Harvey, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:            T-668-04

STYLE OF CAUSE:                                       JEAN PELLETIER and ATTORNEY GENERAL

OF CANADA

PLACE OF HEARING:                                 Montréal

DATE OF HEARING:                                   October 31 and November 1, 2005

REASONS:         THE HONOURABLE MR. JUSTICE SIMON NOËL

DATE OF REASONS:                                   November 18, 2005     

APPEARANCES:

SOLICITORS OF RECORD: