Pelletier v. Canada (Attorney General), (2005) 275 F.T.R. 108 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: November 01, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 275 F.T.R. 108 (FC);2005 FC 1545

Pelletier v. Can. (A.G.) (2005), 275 F.T.R. 108 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2005] F.T.R. TBEd. NO.036

Jean Pelletier (demandeur) v. Le Procureur général du Canada (défendeur)

(T-668-04; 2005 FC 1545; 2005 CF 1545)

Indexed As: Pelletier v. Canada (Attorney General)

Federal Court

Noël, J.

November 18, 2005.

Summary:

An order of the Governor General in Council, adopted pursuant to s. 105(5) of the Financial Administration Act, terminated Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada. Pelletier applied for judicial review.

The Federal Court allowed the application and remitted the matter to the Governor General in Council.

Administrative Law - Topic 2275

Natural justice - The duty of fairness - Exceptions - Appointments at pleasure - Pelletier was appointed to hold office at pleasure for five years as the Chair of the Board of Directors of Via Rail - A complainant (Bédard) implicated Pelletier in an alleged forced resignation - On Friday, February 27, 2005, a newspaper published the allegations and quoted several comments by Pelletier in response - On the same day, Via Rail issued a public apology to Bédard for Pelletier's comments and counsel for the Privy Council Office contacted Pelletier for an explanation - Two days later, Pelletier's appointment was terminated without explanation or an opportunity to respond - A public press release on March 1, 2004, disclosed that he was terminated because of his inappropriate comments regarding Bédard - The Federal Court rejected an assertion that Pelletier knew or ought to have known of the reasons for his termination - The Governor General in Council had a duty to act fairly in the circumstances - A minimum duty included the right to know the reason or reasons for dissatisfaction that might have justified disciplinary action and the opportunity to be heard - The court remitted the matter to the Governor General in Council - See paragraphs 68 to 87 and 92 to 95.

Administrative Law - Topic 2405

Natural justice - Procedure - General - Notice of subject matter to be considered - Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada was terminated - Pelletier sought judicial review - The Federal Court stated 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." - See paragraph 66.

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada was terminated - Pelletier sought judicial review - The Federal Court stated 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." - See paragraph 64.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See Administrative Law - Topic 2405 ].

Administrative Law - Topic 2447

Natural justice - Procedure - Notice - Notice of sanctions to be imposed - [See Administrative Law - Topic 2405 ].

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Administrative Law - Topic 2275 ].

Crown - Topic 5241

Officials and employees - Discipline - General - [See Administrative Law - Topic 2405 and Administrative Law - Topic 2442 ].

Cases Noticed:

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(d) 385, refd to. [para. 37].

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, consd. [para. 40].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 42].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; 110 D.L.R.(3d) 311, refd to. [para. 45].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 48].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, refd to. [para. 48].

Reglin v. Creston (Town) et al., [2004] B.C.T.C. 790; 2004 BCSC 790, refd to. [para. 48].

Woodley v. Board of Education of Yellowknife District No. 1, [2000] N.W.T.J. No. 31; 2000 NWTSC 30, refd to. [para. 48].

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, dist. [para. 51].

Cardinal Insurance Co., Re (1982), 44 N.R. 428 (F.C.A.), dist. [para. 51].

Qureshi v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 195 F.T.R. 9 (T.D.), refd to. [para. 91].

Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 113 Sask.R. 99; 52 W.A.C. 99 (C.A.), refd to. [para. 93].

R. v. Cummins, [1997] B.C.J. No. 2540 (S.C.), refd to. [para. 93].

Aviation Roger Forgues v. Canada, [1999] Q.J. No. 1094 (S.C. Civ.), refd to. [para. 93].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 93].

Counsel:

Suzanne Côté and Patrick Girard, for the plaintiff;

Jacques Jeansonne and Alberto Martinez, for the defendant.

Solicitors of Record:

Stikeman Elliot, Montreal, Quebec, for the plaintiff;

Deslauriers Jeansonne, Montreal, Quebec, for the defendant.

Noël, J., of the Federal Court, heard this application at Montreal, Quebec, on October 31 and November 1, 2005, and delivered the following reasons for order on November 18, 2005.