Administrative law – National defence – Freedom of information and protection of privacy – Media access to hearings – Judicial review – Quasi-judicial tribunals – In camera hearings – Procedural requirements and fairness – Discretion of delegated authority – Standard of review – Correctness – Reasonableness simpliciter
Gordon v. Canada (Minister of National Defence),  F.C.J. No. 409, Federal Court, March 8, 2005, Harrington J.
On October 5, 2004, fires broke out aboard the HMCS Chicoutimi which resulted in casualties among her crew, including the death of Lieutenant Saunders. Pursuant to section 45(1) of the National Defence Act, 1985 R.S.C. c. N-5, the Chief of the Maritime Staff convened a Board of Inquiry which was to investigate the fires and casualties. The Board was called upon to make a finding as to the seaworthiness of the H.M.S. Chicoutimi, the cause of the fires and, with respect to the death, injury and medical care of Canadian Forces personnel during and following the fires, whether Lieutenant Saunders or any other person was responsible for his death, and whether the injured or any other person was responsible for his injuries. The Board was guided by its Terms of Reference and would ultimately deliver its Minutes of Proceedings to the Chief of the Maritime Staff.
The Board began by taking evidence from a number of witnesses in Scotland. Weeks later, just before it was to receive evidence in Halifax from crew members, the Canadian Broadcasting Corporation applied to attend. The Board denied the CBC the opportunity to present oral argument, but accepted written submissions. The President of the Board of Inquiry denied the CBC access. The CBC and one of its reporters made this application for judicial review of that decision and argued that the proceedings must be open to the public since the Board was exercising either a judicial or a quasi-judicial function; alternatively, they argued that the President had improperly exercised his discretion under the Terms of Reference in allowing a member of Lieutenant Saunders’ family to attend, but not the CBC.
The Court first considered the issue of whether quasi-judicial functions were involved in the Board’s proceedings. Such functions would give rise to the rebuttable presumption that the proceedings are open to the public. The Court held that the standard of review on this issue was correctness. The Court was in a far better position than the Board to determine the legal nature of the Board. The Board was composed of individuals from the military with appropriate technical expertise, but not legal expertise.
The Court relied on the Supreme Court of Canada’s decision in Canada (Minister of National Revenue) v. Coopers and Lybrand Ltd.,  1 S.C.R. 495, which established several criteria for determining whether a decision or order is made on a judicial or quasi-judicial basis. The Court found that the Board of Inquiry was not carrying out any judicial or quasi-judicial functions. It was, in essence, a private investigation. There was nothing to suggest that the Board conducts hearings in a judicial sense or adjudicates upon the rights and obligations of individuals. Also, the process was not adversarial.
The Court likened the Board’s responsibility to an income tax assessment, finding that the requirement to make findings as to responsibility or blame in the case was not adjudicative. Any “finding” as to responsibility would be within an investigative report. It would not be a court pronouncement.
The Court moved on to consider whether, notwithstanding its finding regarding the nature of the Board of Inquiry’s functions, the President had properly exercised his discretion under paragraph 12 of the Terms of the Reference in allowing a member of Lieutenant Saunders’s family to attend but not the CBC. The Court noted that a discretionary decision, even within a legal context, is entitled to considerable deference. The Court adopted the reasonableness simpliciter standard which would mean that the decision should not be interfered with unless clearly wrong in the sense of being based upon a wrong principle or a misapprehension of the facts.
Paragraph 12 of the Terms of Reference called upon the President of the Board of Inquiry to strike “the appropriate balance between the interest of the public in being informed of the BOI’s progress, and the public’s interest in ensuring that security, privacy, operational and international relations requirements, is achieved. This direction is to ensure that as much information as is appropriate and reasonable is publicly available and disclosed.” In rejecting the CBC’s request for access, the President had stated that he struck a balance by using a number of mechanisms including the posting of information on a National Defence website, interviews with the press, and press releases.
The Court found that, based upon the Board’s mandate, the President could have given the press access, subject to exclusions depending on the topic being discussed. However, there may have been other ways to strike a balance and the President had exercised his discretion in a reasonable manner. It is inherent in the reasonableness simpliciter review standard that there may be more than one way to proceed and more than one decision which could have been made.
Finally, the CBC argued that it ought to have been given the opportunity to plead its case orally. The Court held that the right to an oral hearing is hardly absolute, particularly in an administrative matter. The President was very occupied with the duties inherent to the inquiry itself, and the issues raised by the CBC were ones of legal argument and an analysis of the proper interpretation of the Terms of Reference. No issues of credibility were involved. In the result, it was not unreasonable for the President to refuse to listen to oral argument.
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