Keen v. Canada (Attorney General), (2009) 342 F.T.R. 270 (FC)

• Judge: Hughes, J.
• Court: Federal Court (Canada)
• Case Date: March 31, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 342 F.T.R. 270 (FC);2009 FC 353

Keen v. Can. (A.G.) (2009), 342 F.T.R. 270 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AP.018

Linda Keen (applicant) v. Attorney General of Canada (respondent)

(T-246-08; 2009 FC 353)

Indexed As: Keen v. Canada (Attorney General)

Federal Court

Hughes, J.

April 7, 2009.

Summary:

The Governor in Council, by Order in Council (OIC), terminated Keen's designation as President of the Canadian Nuclear Safety Commission, although she remained a member of the Commission. Keen commenced judicial review proceedings, seeking to have the OIC declared invalid or unlawful, quashed or set aside. She subsequently gave notice that she could no longer continue in a position as a member of the Commission.

The Federal Court dismissed the application to quash the OIC.

Administrative Law - Topic 571

The hearing and decision - Decisions of the tribunal - Academic or moot matters - [See Courts - Topic 2286 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Crown - Topic 5126 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - On January 15, 2008, the Governor in Council, by Order in Council (OIC), terminated Keen's designation as President of the Canadian Nuclear Safety Commission, although she remained a member of the Commission - On February 14, 2008, Keen commenced judicial review proceedings, seeking to quash the OIC - On September 22, 2008, she gave notice that she could no longer continue in a position as a member of the Commission - The Attorney General argued that the application should be dismissed on the basis of mootness - Given that Keen had resigned, the Attorney General argued that the relief sought would have no practical effect - It was recognized that she no longer sought re-instatement as President - The Federal Court held that it would proceed to determine the remaining issue - There was some possibility of a future claim against the Crown by Keen and, more importantly, the issue raised might well have broader application than just upon Keen's circumstances, but also upon many others who were appointed to government positions - See paragraphs 35 to 43.

Crown - Topic 5125

Officials and employees - Appointment and employment - Appointment at pleasure - General - The Federal Court discussed the concepts of appointments "at or during pleasure" and "during good behaviour" - See paragraphs 44 to 49.

Crown - Topic 5126

Officials and employees - Appointment and employment - Appointment at pleasure - What constitutes - The Governor in Council, by Order in Council (OIC), terminated Keen's designation as President of the Canadian Nuclear Safety Commission, although she remained a member of the Commission - Prior to the termination, Keen was notified of the pending termination of her designation and given an opportunity to respond - Keen commenced judicial review proceedings, seeking to have the OIC quashed - She thereafter resigned as a Commission member - The judicial review proceeded - The Federal Court dismissed the application - The court noted that while s. 10(5) of the Nuclear Safety and Control Act provided that Commission members held their appointment "during good behaviour", the Act was silent as to the status of the President of the Commission - The court held that, in those circumstances, the designation as President was "at pleasure" - The court commented that, in any event, the original commission as granted by the Queen stated that Keen's appointment as member was for five years "during good behaviour" and that the designation as President was "during our pleasure" - The court stated that "it could not be more clear" - The court opined that since Keen's appointment as President was "at pleasure" the requirements of procedural fairness as set out in Dunsmuir v. NB (SCC 2008) were met; however, if designation had been "during good behaviour", the requirements of procedural fairness would not have been met - See paragraphs 44 to 80.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Crown - Topic 5126 ].

Crown - Topic 5127.1

Officials and employees - Appointment and employment - Appointment during good behaviour (incl. termination of) - [See Crown - Topic 5125 and Crown - Topic 5126 ].

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - [See Courts - Topic 2286 ].

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 36].

Pro-West Transport Ltd. et al. v. Canada (Attorney General) et al. (2007), 367 N.R. 57; 2007 FCA 206, refd to. [para. 40].

Manuge v. Can. (2009), 384 N.R. 313; 2009 FCA 29, refd to. [para. 41].

Grenier v. Canada (2005), 344 N.R. 102; 2005 FCA 348, refd to. [para. 41].

TeleZone Inc. v. Canada (Attorney General) (2009), 245 O.A.C. 91; 2008 ONCA 892, refd to. [para. 41].

Cosgrove v. Canadian Judicial Council et al. (2007), 361 N.R. 201; 279 D.L.R.(4th) 352; 2007 FCA 103, refd to. [para. 46].

Pelletier v. Canada (Attorney General), [2008] 3 F.C.R. 40; 376 N.R. 360; 2008 FCA 1, refd to. [para. 48].

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. 49].

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 55].

Thorne's Hardware Ltd. v. Canada - see Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193, refd to. [para. 66].

McKenzie v. British Columbia, [2006] B.C.T.C. Uned. D07; 272 D.L.R.(4th) 455; 2006 BCSC 1372, refd to. [para. 67].

Houle v. Canada (Minister of Labour and Immigration), [1987] 2 F.C. 493 (T.D.), affd. 86 N.R. 38 (F.C.A.), refd to. [paras. 69, 72].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 76].

Statutes Noticed:

Interpretation Act, R.S.C. 1985, c. I-21, sect. 23(1) [para. 45].

Nuclear Safety and Control Act, S.C. 1997, c. 9, sect. 10(5) [para. 10].

Counsel:

Allan O'Brien and Steven Levitt, for the applicant, Linda Keen;

John B. Laskin and Nathalie Biderman, for the respondent, Attorney General of Canada.

Solicitors of Record:

Nelligan O'Brien Payne, Ottawa, Ontario, for the applicant, Linda Keen;

Torys LLP, Toronto, Ontario, for the respondent, Attorney General of Canada.

This application was heard in Ottawa, Ontario, on March 31, 2009, before Hughes, J., of the Federal Court, who delivered the following decision on April 7, 2009.