Pelletier v. Canada (Attorney General), (2008) 376 N.R. 360 (FCA)

• Judge: Décary, Létourneau and Noël, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 11, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 376 N.R. 360 (FCA);2008 FCA 1

Pelletier v. Can. (A.G.) (2008), 376 N.R. 360 (FCA)

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[French language version follows English language version]

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

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Temp. Cite: [2008] N.R. TBEd. JA.020

Le Procureur général du Canada (appelant) v. Jean Pelletier (intimé)

(A-221-07; 2008 FCA 1; 2008 CAF 1)

Indexed As: Pelletier v. Canada (Attorney General)

Federal Court of Appeal

Décary, Létourneau and Noël, JJ.A.

January 9, 2008.

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. The order was set aside on judicial review and the matter was referred to the Governor General in Council (see 275 F.T.R. 108, affd. 358 N.R. 102). The Minister of Transport subsequently recommended that Pelletier's appointment be terminated. A second order was adopted terminating the appointment. Pelletier applied for judicial review.

The Federal Court, in a decision reported at 309 F.T.R. 266, allowed the application and set aside the termination order where the Minister of Transport demonstrated a reasonable apprehension of bias after the first termination order was terminated. Further, the Minister breached his statutory duty by failing to consult with Via Rail's Board of Directors before making his recommendation. The Attorney General appealed.

The Federal Court of Appeal allowed the appeal, set aside the Federal Court's decision, dismissed the judicial review application and restored the order-in-council terminating Pelletier's appointment.

Administrative Law - Topic 1384

Classification of power or function - Policy directives - What constitutes - An order of the Governor General in Council terminated Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada - The order was set aside on judicial review - Three days later the Minister of Transport wrote to Pelletier advising him that there were grounds to recommend his termination for loss of confidence and requesting written arguments - Later that day, the Minister stated at the House of Commons that the grounds for Pelletier's termination were still valid and that he had therefore initiated a process which would allow Pelletier to be heard - He further stated that Pelletier no longer had their confidence - The Minister subsequently recommended Pelletier's termination - A second termination order was adopted - A reviewing judge set aside the order, holding that the Minister's statements at the House of Commons established that he had no intention of changing his mind about the removal - This created a reasonable apprehension of bias - The Federal Court of Appeal allowed an appeal - This was not a question of applying the highest standard of procedural fairness - Because he was removed for misconduct, Pelletier was entitled to be informed and heard - The Minister met those obligations - There were no legislative restraints on the Minister's powers - This was a policy making discretionary administrative decision which attracted, at best, a standard of impartiality of a closed mind - The reviewing judge erred in applying the higher standard of a reasonable apprehension of bias - See paragraphs 38 to 58.

Administrative Law - Topic 2275

Natural justice - The duty of fairness - Exceptions - Appointments at pleasure - [See Administrative Law - Topic 1384 ].

Administrative Law - Topic 2275

Natural justice - The duty of fairness - Exceptions - Appointments at pleasure - The Federal Court of Appeal stated that "The termination of a person appointed by the Cabinet during pleasure is essentially a political and discretionary administrative decision. The fact that it is subject to a certain standard of procedural fairness, and that the standard is higher because the reason alleged is misconduct, does not in anyway change the nature of the decision. The decision does not, in either form or substance, resemble a judicial or quasi-judicial decision." - See paragraph 48.

Administrative Law - Topic 3205.1

Judicial review - General - Policy statements - [See Administrative Law - Topic 1384 ].

Constitutional Law - Topic 63

General - Conventions - Nature of - An order of the Governor General in Council terminated Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada - The order was set aside on judicial review - Three days later the Minister of Transport wrote to Pelletier advising him that there were grounds to recommend his termination for loss of confidence and requesting written arguments - The Minister subsequently recommended termination - A second termination order was adopted - An application's judge set aside the order, holding, inter alia, that comments made by the Minister in the House of Commons raised a reasonable apprehension of bias - The Attorney General appealed - Pelletier asserted that a transition of government constitutional convention existed whereby a government that had lost the confidence of Parliament could not nominate or terminate the presidents of Crown corporations - Pelletier asserted that a violation of the convention was further evidence of bias - The Federal Court of Appeal rejected Pelletier's assertions - Generally, courts avoided making pronouncements on the existence of constitutional conventions, which were not rules of law that were subject to judicial enforcement - Furthermore, the evidence did not establish the existence or scope of the alleged convention - What was required was not only the proof of precedents, but also proof that the political actors themselves believed that there was a rule that they were obliged to respect - In any event, because the alleged convention would have had an effect on the validity of the second termination order, Pelletier was required to file a notice of constitutional question and to serve that notice on the Attorneys General of Canada and the provinces, which he did not do - See paragraphs 18 to 21.

Constitutional Law - Topic 68

General - Conventions - Proof of - [See Constitutional Law - Topic 63 ].

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of constitutional question - [See Constitutional Law - Topic 63 ].

Crown - Topic 683

Authority of Ministers - Exercise of - Policy statements - Judicial review - [See Administrative Law - Topic 1384 ].

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Administrative Law - Topic 1384 and second Administrative Law - Topic 2275 ].

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - The Minister of Transport recommended the termination of Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada - An order of the Governor General in Council, adopted pursuant to s. 105(5) of the Financial Administration Act, terminated Pelletier's appointment - Pelletier applied for judicial review, asserting that the order was void and ultra vires because the government failed to consult Via Rail's Board of Directors before terminating his appointment - The Act did not address the termination of an appointment - Pelletier relied on s. 105(6) of the Act and s. 24(1) of the Interpretation Act - Section 105(6) provided that a Minister had to consult the Board of Directors of a Crown corporation before recommending the appointment of its Chair - Section 24(1) provided that the power to appoint an officer at pleasure included the power to suspend or remove the officer - The reviewing judge allowed the application, holding, inter alia, that the combined effect of s. 24(1) and s. 105(6) was that the obligation to consult the Board of Directors before appointment included the obligation to consult them again before termination - The Federal Court of Appeal allowed an appeal - The sections were clear and unambiguous - No obligation to consult was imposed on the power to terminate under s. 24(1)(a) - Imposing an obligation to consult at the time of termination of an appointment at pleasure in the absence of clear wording, even if only symbolic, would change the nature of the appointment, i.e., its intrinsically precarious status - See paragraphs 22 to 37.

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - An order of the Governor General in Council terminated Pelletier's appointment at pleasure as the Chair of the Board of Directors of Via Rail Canada - The order was set aside on judicial review - Three days later the Minister of Transport wrote to Pelletier advising him that there were grounds to recommend his termination for loss of confidence and requesting written arguments - Later that day, the Minister stated at the House of Commons that the grounds for Pelletier's termination remained valid and that he had therefore initiated a process which would allow Pelletier to be heard - He further stated that Pelletier no longer had their confidence - The Minister subsequently recommended Pelletier's termination - The Federal Court of Appeal held that the Minister's decision met the closed mind standard - Although the Minister's mind was made up when he recommended Pelletier's termination, he retained the opportunity to change his mind after he had heard Pelletier's submissions - His statements in the House of Commons did nothing more than describe the situation as it then stood - The test for a closed mind did not apply to that early stage of the process - Further, inordinate weight should not be given to impromptu responses in the heat of Question Period - The hearing was the proper moment to apply the test to the Minister - At the hearing, the Minister excused himself for some earlier statements, asked questions about the incidents leading to Pelletier's first termination and promised to consider the matter with a clear head - Moreover, it was Pelletier who pressed the Minister to render a quick decision - Ultimately this was a Cabinet decision and no allegations of closed mindedness were made against the other Minister who participated in the hearing - See paragraphs 63 to 65.

Cases Noticed:

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 19].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 19].

Quebec Constitutional Amendment Reference (No. 2); Quebec (Attorney General) v. Canada (Attorney General) et l'Association Canadienne-Française de l'Ontario and Grand Council of the Crees (of Quebec), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 20].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 27].

Vennat v. Canada (Attorney General) (2006), 299 F.T.R. 12; 2006 FC 1008, refd to. [para. 32].

Gill v. Québec (Ministre de la justice), [1995] R.J.Q. 2690 (S.C.), dist. [para. 34].

Commission scolaire de Montréal v. Québec, [1999] R.J.Q. No. 2978 (S.C.), dist. [para. 34].

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. 44].

Compagnie pétrolière Impériale ltée v. Québec (Ministre de l'Environnement), [2003] 2 S.C.R. 624; 310 N.R. 343; 2003 SCC 58, refd to. [para. 49].

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, dist. [para. 51].

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. 52].

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. 54].

Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2000), 264 N.R. 49 (F.C.A.), refd to. [para. 55].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 58].

Statutes Noticed:

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 105(6) [para. 24].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24(1) [para. 25].

Authors and Works Noticed:

Pigeon, Louis-Philippe, Rédaction et interpretation des lois (3rd Ed. 1986), paras. 27, 28 [para. 34].

Counsel:

Carole Bureau and Warren Newman, for the appellant;

Suzanne Côté and Patrick Girard, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Montreal, Quebec, for the appellant;

Stikeman Elliott LLP, Montreal, Quebec, for the respondent.

This appeal was heard at Montreal, Quebec, on December 11, 2007, by Décary, Létourneau and  Noël, JJ.A.,  of  the  Federal  Court  of Appeal. Décary, J.A., delivered the following reasons for judgment for the court on January 9, 2008.