Chrétien v. Gomery et al., (2008) 333 F.T.R. 157 (FC)

• Judge: Teitelbaum, D.J.
• Court: Federal Court (Canada)
• Case Date: April 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 333 F.T.R. 157 (FC);2008 FC 802

Chrétien v. Gomery (2008), 333 F.T.R. 157 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JL.002

The Right Honourable Jean Chrétien (applicant) v. The Honourable John H. Gomery, in His Quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities and The Attorney General of Canada (respondents)

(T-2118-05; 2008 FC 802)

Indexed As: Chrétien v. Gomery et al.

Federal Court

Teitelbaum, D.J.

June 26, 2008.

Summary:

A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities. An interested individual, the Right Honourable Jean Chrétien (a former Prime Minister), applied for judicial review to quash the Phase I Report of the Commission entitled "Who is Responsible - Fact Finding Report" (i.e., the fact finding phase).

The Federal Court allowed the application. The court found that there was a reasonable apprehension that Commissioner Gomery was biased toward Chrétien and therefore the findings contained in the Phase I Report as they related to Chrétien were set aside.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See second and third Administrative Law - Topic 7912 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - The Attorney General moved to quash paragraph 4 and expurgate exhibits 2 to 4 from an affidavit (the Gallant affidavit) sworn in support of Chrétien's application for judicial review - The paragraph and exhibits, which made allegations pertaining to the Commission's lead counsel, the Commissioner's daughter and former Prime Minister Mulroney, were included in the Gallant affidavit to support Chrétien's allegation that Commissioner Gomery showed a reasonable apprehension of bias toward him - The Attorney General claimed that the allegations and documents that supported them were irrelevant - The Federal Court agreed that paragraph 4 and corresponding exhibits 2 to 4 were irrelevant to the bias issue - The court quashed paragraph 4 and expurgated the corresponding exhibits from the affidavit - However, for the sake of efficiency, the court did not require the affidavit to be modified, rather, the court stated that it would simply not take into consideration that portion of the evidence in its analysis of the merits - See paragraphs 17 to 24.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - The Attorney General moved to quash paragraphs 5 to 13 and 32 and expurgate exhibits 5 to 18 and 36 from an affidavit (the Gallant affidavit) sworn in support of Chrétien's application for judicial review - The Attorney General argued that the impugned paragraphs and exhibits were irrelevant because they related to Phase II of the Commission's mandate and, more particularly, the Phase II Report - The Federal Court agreed that any allusion or reference to the Phase II mandate of the Commission was irrelevant to the present application for judicial review - The court therefore quashed paragraphs 5 to 13 and 32 and the corresponding exhibits 5 to 18 and 36 were expurgated from the Gallant affidavit - The court did not require the affidavit to be modified, but simply agreed not to take those portions into consideration in analysing the merits of the application - See paragraphs 25 and 26.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - The Attorney General moved to quash paragraphs 15 to 23 and expurgate exhibits 20 to 28 (documents and newspaper articles) from an affidavit (the Gallant affidavit) sworn in support of Chrétien's application for judicial review, all which pertained to the media coverage surrounding the Commissioner and the publication of his Phase I Report - The impugned exhibits were included in support of Chrétien's allegation that his reputation was damaged by the Commissioner's findings and by the statements the Commissioner made to the media - The Attorney General alleged that the newspaper articles that mentioned Chrétien's name in relation to the Commission constituted hearsay in that they reflected only the opinions of the journalists who wrote them - Furthermore, it was impossible to cross-examine these journalists - The Attorney General did not deny that Commissioner Gomery made declarations to journalists; however, evidence of those declarations could not be established by relying on the journalists' opinions - The Federal Court agreed with the Attorney General that the newspapers articles that alluded to Chrétien in relation to the Commission constituted hearsay in that they merely represented the opinions of the journalists who wrote them - Therefore, paragraphs 15 to 23 were quashed and corresponding exhibits 20 to 28 were expurgated from the Gallant affidavit - See paragraphs 27 and 28.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - The Attorney General moved to quash paragraphs 33 to 34 and expurgate corresponding exhibits 37 to 38 from an affidavit (the Gallant affidavit) filed in support of Chrétien's judicial review application, which dealt with the book, Inside Gomery, by Perreault - Those documents were included in support of Chrétien's allegation that Commissioner Gomery showed a reasonable apprehension of bias towards him - Chrétien argued that Perreault's book should be admitted into evidence because in the foreword written by him, Commissioner Gomery recognized the accuracy of Perreault's "chronicle of the inner workings of the commission" - The Attorney General insisted that this statement by Commissioner Gomery should not be perceived as an admission that the entirety of the book was accurate - The Attorney General opined that the Perreault book constituted hearsay - The Federal Court agreed with Chrétien, that Commissioner Gomery's statement in his foreword strongly suggested that he in fact attested to the accuracy of the entire book - Therefore, the Perreault book was admissible and the impugned paragraphs and exhibits could remain in the affidavit - See paragraphs 29 and 30.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - Chrétien sought leave, pursuant to Federal Courts Rule 312, to file a supplemental affidavit (the Prud'homme affidavit) - The Prud'homme affidavit introduced additional evidence, consisting of newspaper articles and transcripts of interviews granted by Commissioner Gomery when he retired from the Superior Court of Québec in August 2007, during which he made some comments that Chrétien considered relevant to his judicial review application - The Federal Court noted that in addition to relevance, other conditions had to be met in order to file a supplemental affidavit - Those conditions were that: "1) the evidence must serve the interests of justice; 2) it must assist the Court; 3) it must not cause substantial or serious prejudice to the other side; and 4) the evidence must not have been available prior to the cross-examination of the opponent's affidavits" - The court held that in this case, Chrétien had met all these conditions, therefore leave was granted to file the supplemental affidavit and the evidence introduced by that affidavit was henceforth part of the record - See paragraphs 35 to 37.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - [See all Administrative Law - Topic 3345 ].

Administrative Law - Topic 7912

Public inquiries - Procedural fairness - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase), alleging a lack of procedural fairness - The Federal Court discussed the content of procedural fairness owned to persons appearing before the Commission - The court, applying the factors enunciated in Baker v. MCI (SCC 1999), held that Chrétien was entitled to a high level of procedural fairness before the Commission - See paragraphs 39 to 61.

Administrative Law - Topic 7912

Public inquiries - Procedural fairness - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase), alleging a reasonable apprehension of bias - The Federal Court opined that the appropriate test for apprehension of bias in this situation was that enunciated in the dissenting judgment of Justice de Grandpré in Committee for Justice and Liberty v. National Energy Board, as subsequently adopted by the Supreme Court of Canada in R. v. R.D.S. - Under that test, the apprehension of bias had to be a reasonable one, held by reasonable and right minded informed persons - The court stated that there was a presumption that a decision-maker would act impartially and more than a mere suspicion or the reservations of a very sensitive or scrupulous conscience was required to displace that presumption - The onus of demonstrating bias lay with the person who was alleging its existence and the threshold for finding a reasonable apprehension of bias was high - But if an apprehension of bias was found, the hearing and any decision resulting from it were void, since the damage from apprehension of bias cannot be remedied - See paragraphs 67 to 76.

Administrative Law - Topic 7912

Public inquiries - Procedural fairness - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien (a former Prime Minister), applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase), alleging a reasonable apprehension of bias - Chrétien alleged that the public statements made by the Commissioner during the Phase I hearings and after the release of the Phase I Report and the Commissioner's preoccupation with media coverage evidenced an apprehension of bias - The Federal Court held that comments made by the Commissioner to the media, viewed cumulatively, not only indicated that he prejudged issues but also that the Commissioner was not impartial toward Chrétien - The court also found that the Commissioner became preoccupied with ensuring that the spotlight of the media remained on the Commission's inquiry and that preoccupation outside the hearing room had a detrimental impact on the fairness of the proceedings - The court found that there existed a reasonable apprehension of bias on the part of the Commissioner toward Chrétien and therefore the findings in the Report as they related to him had to be set aside and treated as void - See paragraphs 77 to 108.

Administrative Law - Topic 7985

Public inquiries - Judicial review - Scope of review - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - An interested individual, the Right Honourable Jean Chrétien, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - The Federal Court discussed the standard of review - The court noted that with respect to the Commission's findings the standard applicable was whether the findings were "based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory" - The court stated that it was well-established that the standard of review analysis did not apply to issues of procedural fairness - They were always reviewed as questions of law and as such subject to the correctness standard - No deference was owed when determining the fairness of the decision-maker's process - If the duty of fairness was breached, the decision in question had to be set aside - See paragraphs 62 to 66.

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - [See fifth Administrative Law - Topic 3345 ].

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See third and fourth Administrative Law - Topic 3345 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See first and second Administrative Law - Topic 3345 ].

Cases Noticed:

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 20].

Atlantic Engraving Ltd. v. Rosenstein (2002), 299 N.R. 244; 2002 FCA 503, refd to. [para. 36].

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. 39].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 40].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 40].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 40].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 40].

Phillips v. Nova Scotia (Commissioner, Public Inquiries Act) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 41].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 44].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), refd to. [para. 47].

Beno v. Létourneau et al., [1997] 1 F.C. 911; 126 F.T.R. 241 (T.D.), refd to. [para. 47].

Addy v. Létourneau, J., et al., [1997] 3 F.C. 784; 133 F.T.R. 81 (T.D.), refd to. [para. 54].

R. v. Higher Education Funding Council; Ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), refd to. [para. 55].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 57].

Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; 256 N.R. 85 (F.C.A.), refd to. [para. 62].

Beno v. Canada (Attorney General), [2002] 3 F.C. 499; 216 F.T.R. 45 (T.D.), refd to. [para. 63].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 66].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 66].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 236 D.L.R.(4th) 485; 2004 FCA 49, refd to. [para. 66].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 67].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 70].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 74].

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon et al., [1968] 3 All E.R. 304; [1969] 1 Q.B. 577 (C.A.), refd to. [para. 75].

R. v. Gough (R.B.), [1993] A.C. 646; 155 N.R. 81 (H.L.), refd to. [para. 97].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 97].

R. v. Barnsley Licencing Justices; Ex parte Barnsley and District Licensed Victuallers' Association, [1960] 2 Q.B. 167 (C.A.), refd to. [para. 97].

Counsel:

David Scott and Peter K. Doody, for Jean Chrétien;

Raynold Langlois, Marie Cossette, Marie-Geneviève Masson, for John H. Gomery;

Francisco Couto and Sylvain Lussier, for The Attorney General of Canada.

Solicitors of Record:

Borden Ladner Gervais, LLP, for Jean Chrétien;

Langlois Kronström Desjardins, s.e.n.c.r.l. for John H. Gomery;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for The Attorney General of Canada.

This application was heard at Ottawa, Ontario, on February 19, 20, 21, 25, 26, 27, 2008, and April 15, 2008, before Teitelbaum, D.J., of the Federal Court, who delivered the following reasons for judgment on June 26, 2008.