Black v. Advisory Council for the Order of Canada

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: de Montigny, J.
• Citation: 2012 FC 1234,(2012), 420 F.T.R. 79 (FC)
• Date: 24 August 2012
• Subject Matter: ADMINISTRATIVE LAW,CROWN

Black v. Order of Can. Advisory Council (2012), 420 F.T.R. 79 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. NO.011

Conrad Black (applicant) v. The Advisory Council for the Order of Canada (respondent)

(T-1348-12; 2012 FC 1234)

Indexed As: Black v. Advisory Council for the Order of Canada

Federal Court

de Montigny, J.

October 23, 2012.

Summary:

The Advisory Council for the Order of Canada refused Black's request for an oral hearing in advance of their determination as to whether there were reasonable grounds for the termination of his appointment to the Order of Canada. Black applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - [See third Administrative Law - Topic 3205 ].

Administrative Law - Topic 341

The hearing and decision - Nature or extent of the hearing - General - [See third Administrative Law - Topic 3205 ].

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See third Administrative Law - Topic 3205 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See third Administrative Law - Topic 3205 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See second and third Administrative Law - Topic 3205 ].

Administrative Law - Topic 2270

Natural justice - The duty of fairness - Circumstances or powers to which duty does not apply - [See third Administrative Law - Topic 3205 ].

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See second Administrative Law - Topic 3205 ].

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - The Advisory Council for the Order of Canada refused Black's request for an oral hearing in advance of their determination as to whether to recommend to the Governor General that Black's appointment to the Order of Canada be terminated - Black applied for judicial review - An issue arose as to whether the application was premature (i.e., whether Black should wait until the Governor General had considered the Council's recommendation and rendered a decision) - The Federal Court held that the application was not premature - It was possible that neither the Advisory Council's recommendation nor the Governor General's ultimate decision to terminate an appointment were judicially reviewable, being exercises of prerogative powers - The issue raised by Black was an "exceptional circumstance" that constituted an exception to the rule against judicial review of interlocutory decisions - To decide otherwise would risk imposing on Black a potentially grave injustice, as he could ultimately be left with no possibility to challenge the Council's decision - See paragraphs 32 to 43.

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - The Advisory Council for the Order of Canada refused Black's request for an oral hearing in advance of their determination as to whether there were reasonable grounds for the termination of his appointment to the Order of Canada - Black applied for judicial review - An issue arose as to whether the Council's decision was susceptible to judicial review, being a prerogative act - The Federal Court held that an exercise of the prerogative would be justiciable, or amenable to the judicial process, if the subject matter affected the rights or legitimate expectations of an individual - Here, no rights were affected by the conferral or removal of the honour - However, there was a policy in place controlling the procedure to be followed by the Council which created an expectation that the procedural fairness principles embedded in the policy would be adhered to - Thus the subject matter of Black's judicial review application was justiciable and properly before the court - See paragraphs 44 to 66.

Administrative Law - Topic 3205

Judicial review - General - Crown prerogative - The Advisory Council for the Order of Canada refused Black's request for an oral hearing in advance of their determination as to whether to recommend to the Governor General that Black's appointment to the Order of Canada be terminated - Black applied for judicial review - The Federal Court dismissed the application - Procedural fairness and natural justice did not require an oral hearing in the circumstances of this case - There was nothing in the policy governing the procedure to be followed by the Council which would ground a legitimate expectation of an oral hearing - A consideration of the Baker factors led the court to the same result - See paragraphs 67 to 87.

Administrative Law - Topic 3220

Judicial review - General - Interim applications - [See first Administrative Law - Topic 3205 ].

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings - [See first Administrative Law - Topic 3205 ].

Administrative Law - Topic 9117

Boards and tribunals - Judicial review - Review of interlocutory orders - [See first Administrative Law - Topic 3205 ].

Crown - Topic 2212

Crown privilege or prerogative - General - Honours prerogative - [See all Administrative Law - Topic 3205 ].

Cases Noticed:

United States of America v. Black (2008), 530 F.3d 596 (7th Cir. Ill.), refd to. [para. 9].

Black v. United States (2010), 78 USWL 4732, refd to. [para. 9].

United States of America v. Black (2010), 625 F.3d 386 (7th Cir. Ill.), refd to. [para. 9].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 32].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al., [2011] 2 F.C.R. 332; 400 N.R. 367; 2010 FCA 61, refd to. [para. 32].

Burnt Church (Esgenoôpetitj) First Nation v. Human Resources and Skills Development Labour Program (Can.), [2010] F.T.R. Uned. 800; 2010 FC 1195, refd to. [para. 33].

Lundbeck Canada Inc. v. Canada (Minister of Health) et al. (2008), 338 F.T.R. 145; 2008 FC 1379, refd to. [para. 33].

Boulos v. Canada (Attorney General) (2012), 406 F.T.R. 210; 2012 FC 292, refd to. [para. 33].

Garrick et al. v. Amnesty International Canada et al. (2011), 397 F.T.R. 213; 2011 FC 1099, refd to. [para. 33].

Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756, refd to. [para. 35].

Fairmont Hotels Inc. et al. v. Director Corporations Canada et al. (2007), 308 F.T.R. 163; 2007 FC 95, refd to. [para. 36].

Jada Fishing Co. et al. v. Canada (Minister of Fisheries and Oceans) et al. (2002), 288 N.R. 237; 2002 FCA 103, refd to. [para. 38].

Chauvin v. Canada (2009), 355 F.T.R. 200; 2009 FC 1202, refd to. [para. 41].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 45].

Council of Civil Service Unions et al., Re, [1985] 1 A.C. 374; 62 N.R. 336 (H.L.), refd to. [para. 48].

Chiasson v. Canada (2003), 303 N.R. 54; 226 D.L.R.(4th) 351; 2003 FCA 155, refd to. [para. 56].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 67].

Xwave Solutions Inc. v. Canada (Minister of Public Works and Government Services) (2003), 310 N.R. 164; 2003 FCA 301, refd to. [para. 69].

Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321, refd to. [para. 76].

Chrétien v. Gomery et al., [2009] 2 F.C.R. 417; 333 F.T.R. 157; 2008 FC 802, affd. (2010), 409 N.R. 193; 2010 FCA 283, refd to. [para. 76].

Khan v. University of Ottawa (1997), 101 O.A.C. 241; 34 O.R.(3d) 535 (C.A.), refd to. [para. 82].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 82].

Masciangelo v. Spensieri (1990), 1 C.P.C.(3d) 124 (Ont. H.C.), refd to. [para. 82].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 86].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 86].

Statutes Noticed:

Policy and Procedure for Termination of Appointment to the Order of Canada, sect. 3 [para. 27].

Authors and Works Noticed:

Lordon, Paul, Crown Law (1991), p. 103 [para. 18].

Counsel:

Peter Howard and Aaron Kreaden, for the applicant;

Christine Mohr and Andrea Bourke, for the respondent.

Solicitors of Record:

Stikeman Elliott LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on August 24, 2012, at Toronto, Ontario, before de Montigny, J., of the Federal Court, who delivered the following decision on October 23, 2012.