The applicant was not an “office holder” and therefore his dismissal by the respondent was subject to a minimal duty of fairness which was met by the respondent in the circumstances

Administrative law – Employment law – Termination of employment – Judicial review – Procedural requirements and fairness – Bias

Youth Criminal Defence Office v. Board of Directors of the Legal Aid Society of Alberta, [2004] A.J. No. 1345, November 3, 2004, Alberta Court of Queen’s Bench, Hart J.

The applicant (“Holtby”) applied for a declaration of nullity and an order in the nature of certiorari quashing the decision of the respondent Board of Directors of the Legal Aid Society (the “Board”) to terminate his employment as Senior Counsel of the Youth Criminal Defence Office. Amongst other things, Holtby submitted that the Board breached its duty of fairness and that the circumstances behind his dismissal gave rise to a reasonable apprehension of bias.

Holtby submitted that a duty of fairness can arise as a term of an employee contract or where an employee is the holder of an office in which the public has an interest.

The Court held that although Holtby was in a position of considerable responsibility in which the public had an interest, the link between his position and any statute was tenuous. He was subject to Board control and there was an absence of governmental representation on the Board. The Court therefore held that the applicant was not an office holder.

In determining the content of the duty of fairness in the situation, the Court noted the contextual approach which called for a consideration of the following:

1. The nature of the decision being made and the process being followed in making it;
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
3. The importance of the decision to the individual or individuals affected;
4. The legitimate expectations of the person challenging the decision; and
5. The choices of procedure made by the agency itself.

The Court noted the decision to terminate Holtby was final and specific in nature. The process followed by the Board prior to making the decision included a written reprimand and a clear warning as to the consequences of not following the detailed instructions provided. With respect to legitimate expectations, the Court noted that Holtby took his chances in failing to follow the direction of the Board to communicate and cooperate with it in the face of the prior warning.

In all of the circumstances of the case, the Court found that any duty of notice and opportunity to be heard in this case would have been minimal and was met by the Board.

In addition, any conclusion as to the internal workings of the Board with respect to the issue of bias would be pure speculation. There was no compelling evidence before the Court that Holtby’s termination was anything other than the Board’s reaction to what it perceived as insubordinate and intransigent conduct. A reasonable apprehension of bias had therefore not been made out.

The petition was therefore dismissed.

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