Pelletier v. Canada (Attorney General), 2007 FC 342

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: March 30, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 342;(2007), 309 F.T.R. 266 (FC)

Pelletier v. Can. (A.G.) (2007), 309 F.T.R. 266 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2007] F.T.R. TBEd. AP.015

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

(T-74-06; 2007 CF 342; 2007 FC 342)

Indexed As: Pelletier v. Canada (Attorney General)

Federal Court

Lemieux, J.

March 30, 2007.

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). Thereafter the Minister of Transport recommended that Pelletier's appointment be terminated and a second order was adopted terminating the appointment. Pelletier applied for judicial review.

The Federal Court 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.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension 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 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 to chair Via Rail's board - The Minister subsequently recommended that Pelletier's appointment be terminated - A second termination order was adopted - The Federal Court set aside the order - The Governor General in Council had a duty to act fairly which implied that Pelletier was entitled to impartiality - Considering the significant role that the Minister's recommendation played, that procedural guarantee extended to the Minister - The court rejected an assertion that comments made by the Minister before he came into office disqualified him from acting in Pelletier's case - However, his 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 - This conclusion was supported by the Minister's willingness to quickly decide Pelletier's fate - A reference in the termination order to other factors considered was insufficient to rebut the appearance of bias - See paragraphs 35 to 62.

Administrative Law - Topic 2094.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Crown Ministers - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 2275

Natural justice - The duty of fairness - Exceptions - Appointments at pleasure - [See Administrative Law - Topic 2088 ].

Crown - Topic 5127

Officials and employees - Appointment and employment - Appointment at pleasure - Termination of - [See Administrative Law - Topic 2088 ].

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 Federal Court held that consultation with Via Rail's Board of Directors was a condition precedent to the Minister exercising his power to recommend and therefore to the Governor General in Council's adoption of the order - See paragraphs 63 to 76.

Cases Noticed:

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. 36].

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. 36].

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. 37].

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

St-Hilaire v. Bégin, [1982] C.A. 25, leave to appeal denied (1982), 41 N.R. 534 (S.C.C.), refd to. [para. 41].

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. 43].

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. 46].

Woodley v. Board of Education of Yellowknife District No. 1, 2000 NWTSC 30, dist. [para. 53].

Gill v. Québec (Ministre de la justice), [1995] R.J.Q. 2690 (S.C.), refd to. [para. 67].

Commission scolaire de Montréal v. Québec, [1999] J.Q. No. 5341 (S.C.), refd to. [para. 68].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 72].

Statutes Noticed:

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 105(6) [para. 64].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24(1) [para. 64].

Authors and Works Noticed:

Pigeon, Louis-Philippe, Rédaction et interprétation des lois (3rd Ed. 1986), p. 35 [para. 67].

Counsel:

Suzanne Côté and Patrick Girard, for the applicant;

Carole Bureau and Rosemarie Millar, for the respondent.

Solicitors of Record:

Stikeman Elliot, S.E.N.C.R.L., srl, Montreal, Quebec, for the applicant;

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

This application was heard at Montreal, Quebec, on January 22 and 23, 2007, by Lemieux, J., of the Federal Court, who delivered the following reasons for judgment on March 30, 2007.