Actions taken by the Legislative Assembly relating to the tenure of an official appointed to carry out statutory duties attracted a duty of fairness. The Conflict of Interest Commissioner (the “Conflict Commissioner”), whose appointment was revoked by Commissioner of the Northwest Territories on the recommendation of the Legislative Assembly, was owed a duty of procedural fairness which included, at a minimum, the obligation to put her on notice that her position was at risk and to give her the right to be heard. The removal from office of the Conflict Commissioner was not an aspect of the Legislative Assembly’s privilege.

26. November 2002 0

Administrative law – Legislative assembly – Executive officers – Duty of fairness – Official appointments – Judicial review – Procedural requirements

Roberts v. Northwest Territories (Commissioner), [2002] N.W.T.J. No. 81, Northwest Territories Supreme Court, October 23, 2002, Vertes J.

The appointment of the Conflict Commissioner was for a four-year term. Fifteen months into her tenure, the Legislative Assembly passed a resolution that, in the absence of her voluntary resignation, the Commissioner of the Northwest Territories be advised to revoke her appointment. The Legislative Assembly and Executive Council Act, S.N.W.T. 1999, c. 22 (the “Act”), provided that the Conflict Commissioner may be removed from office by the Commissioner of the Northwest Territories on the recommendation of the Legislative Assembly, for cause or incapacity. The Conflict Commissioner sought a declaration that the Commissioner of the Northwest Territories (the “NWT Commissioner”) acted unlawfully in revoking her appointment. In response, the NWT Commissioner argued that the Legislative Assembly was the decision-maker in present case and that since internal discipline of member is an inherent privilege of the Legislative Assembly, the duties of the Conflict Commissioner are an aspect of that internal discipline and are also matters of privilege and not reviewable by the Courts.

The question of who was the decision-maker was essentially one of statutory interpretation of the revocation powers contained in the Act. In the context of the statute, the NWT Commissioner “may” remove the Conflict Commissioner from office on the prescribed conditions of “cause or incapacity” or “the recommendation of the Legislative Assembly”. When considered in the context of the NWT Commissioner’s role in the structure of government, the legislation imposed an obligation on the NWT Commissioner to act on the recommendation of the Legislative Assembly. Thus the word “may” really means “must”. It is also the Legislative Assembly that must determine the condition of “cause or incapacity”. Thus, the Legislative Assembly was the decision maker in this case.

The Legislative Assembly’s decision to remove the Conflict Commissioner was not an exercise of parliamentary privilege and therefore was not immune from judicial review. The conflict commissioner was appointed, negotiated terms of remuneration, and signed a contract. Her appointment was revocable only for cause or incapacity. It was irrefutable that the terms of the appointment, as provided by the Act and the contract, displaced any unilateral power of dismissal. If the Legislative Assembly wanted the Conflict Commissioner to serve at pleasure it could have said so. Yet the statute expressly contradicts that.

This contractual relationship was not the subject of privilege as the Legislative Assembly, through provision of the Act, had enacted statutory limits on the exercise of its privilege to regulate its internal affairs. Parliamentary privilege is not an end in itself, but simply a means to ensure that the legislature has whatever protection it needs in order to go about its parliamentary business without being second guessed by the Courts. The Courts, while vigilant to ensure that they do not interfere with the business of the legislature, must also be vigilant to ensure that parliamentary privilege is not carried so far that it interferes unnecessarily with the rights of citizens to have access to the courts in relation to matters that do not interfere with the parliamentary business of the legislature, (Thompson v. McLean (1997), 37 C.C.E.L. (2d) 170 (Ont.Ct.Gen.Div.), at 177-178.

It is well-recognized that where a person occupies a statutory position from which there can be dismissal only for cause, the courts are most insistent on a high degree of procedural fairness (Kane v. University of British Columbia, [1980] 1 S.C.R. 1105). Here, the legislative assembly, by considering a resolution to recommend the applicant’s removal from office, had a duty of fairness to the Conflict Commissioner. That duty consisted, at a minimum, of the obligation to put her at notice that her position was at risk and to give her the right to be heard on the issue. This was not done in the present case. In terms of remedies, a declaratory order was made that the Conflict Commissioner was removed from office by an unfair process. There had been a violation of her entitlement to procedural fairness in respect of her security of tenure. Although an order regarding her entitlement to compensation was not made, the Court commented it should be self-evident, in the absence of cause or incapacity, that there was an obligation to compensate her for her economic losses as a result of her removal from office.

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