Pelletier v. Canada (Attorney General) et al., (2008) 333 F.T.R. 190 (FC)

• Judge: Teitelbaum, D.J.
• Court: Federal Court (Canada)
• Case Date: June 26, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 333 F.T.R. 190 (FC);2008 FC 803

Pelletier v. Can. (A.G.) (2008), 333 F.T.R. 190 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JL.006

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

(T-2121-05; 2008 FC 803)

Indexed As: Pelletier v. Canada (Attorney General) 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, Pelletier (chief of staff for former Prime Minister Chrétien), 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 Pelletier and therefore the findings contained in the Phase I Report as they related to Pelletier 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, Pelletier (chief of staff for former Prime Minister 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 certain paragraphs and expurgate exhibits from an affidavit sworn by Pelletier in support of his judicial review application - The Federal Court struck certain paragraphs and exhibits that it considered irrelevant, including materials and exhibits relating to Phase II of the Commission's mandate - The court also struck paragraphs and exhibits (documents and newspaper articles) that the court found constituted hearsay because they reflected only the opinions of the journalists who wrote them - The court refused to strike paragraphs and exhibits in the affidavit relating to a book entitled, Inside Gomery, by Perreault, because it could be taken from the foreword of the book written by Commissioner Gomery, that he acknowledged the entirety of the book was accurate - The court therefore rejected the Attorney General's argument that the book constituted hearsay, holding that it was admissible - See paragraphs 17 to 32.

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, Pelletier, applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - Pelletier 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 Pelletier 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, Pelletier 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 33 to 35.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - [See both 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, Pelletier, 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 Pelletier was entitled to a high level of procedural fairness before the Commission - See paragraphs 37 to 59.

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, Pelletier, 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 65 to 74.

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, Pelletier, 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 because of a reasonable apprehension of bias - Pelletier submitted that the Commissioner's comments, on the record, to the media, and after the Inquiry had concluded established a reasonable apprehension of bias - He further argued that Commissioner Gomery was seduced by the media and the limelight to such an extent that the judicial instinct for fairness, objectivity and restraint which Pelletier was entitled to expect of him gave way to a preoccupation on his part with focusing media (and public) attention upon himself, a course of conduct which preordained unfavourable findings about Pelletier in the Report - The Federal Court agreed that there was a reasonable apprehension of bias on the part of the Commissioner toward Pelletier - Therefore, the findings in the Report as they related to Pelletier, were set aside and treated as void - See paragraphs 75 to 101.

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, Pelletier, 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 60 to 64.

Practice - Topic 3604.6

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

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See first Administrative Law - Topic 3345 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See first 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. 34].

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. 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, refd to. [para. 38].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38].

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. 38].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

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. 38].

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. 38].

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

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), affing [1997] 1 F.C. 911; 126 F.T.R. 241 (T.D.), refd to. [para. 45].

Beno v. Létourneau et al., [1997] 1 F.C. 911; 126 F.T.R. 241 (T.D.), refd to. [para. 45].

Addy v. Létourneau, J., et al., [1997] 3 F.C. 784; 133 F.T.R. 81 (T.D.), refd to. [para. 52].

R. v. Higher Education Funding Council; Ex parte Institute of Dental Surgery, [1994] 1 All E.R. 651 (Q.B.), refd to. [para. 53].

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. 55].

Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; 256 N.R. 85 (F.C.A.), refd to. [para. 60].

Beno v. Canada (Attorney General), [2002] 3 F.C. 499; 216 F.T.R. 45 (T.D.), refd to. [para. 61].

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. 64].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 64].

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. 64].

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. 65].

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. 68].

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. 72].

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. 73].

R. v. Gough (R.B.), [1993] A.C. 646; 155 N.R. 81 (H.L.), refd to. [para. 91].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 91].

R. v. Barnsley Licencing Justices; Ex parte Barnsley and District Licensed Victuallers' Association, [1960] 2 Q.B. 167 (C.A.), refd to. [para. 91].

Counsel:

Guy Pratte and Nadia Effendi, for Jean Pelletier;

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

André Lespérance and Pascale-Catherine Guay, for the Attorney General of Canada.

Solicitors of Record:

Borden Ladner Gervais, s.r.l., for Jean Pelletier;

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 matter was heard at Ottawa, Ontario, on February 11, 12, 13, 14, 18 and 19, 2008, before Teitelbaum, D.J., of the Federal Court, who delivered the following reasons for judgment on June 26, 2008.