The Court set aside an Order in Council removing the Applicant from his position as Chairman of the Board of Directors of VIA Rail. The Governor General in Council had breached the duty to act fairly by not informing the Applicant of the reason or reasons for dissatisfaction with him and not giving him the opportunity to be heard.

24. January 2006 0

Administrative law – Employment law – Appointment – Termination of employment – Legislation – Orders-in-council – Validity – Judicial review – Procedural requirements and fairness

Pelletier v. Canada (Attorney General), [2005] F.C.J. No. 1891, Federal Court Montréal, Quebec, November 18, 2005, Noël J.

In 2001, the Applicant had been appointed to hold office at pleasure for a 5-year period as Chair of the Board of Directors of VIA Rail. In February 2004, Myriam Bédard, an employee of VIA Rail from January 2001 to January 2002, sent a letter to the Office of the Prime Minister in which she accused the Applicant of being involved in her alleged forced resignation from VIA Rail. It would later be determined by an Arbitrator, in April 2004, that Ms. Bédard had voluntarily left her employment and that the Applicant had had no involvement in her departure from VIA Rail. Ten days after Ms. Bédard’s letter, the Applicant advised the Privy Council Office by letter that he wished to meet with senior officials in order to be heard before any sanctions were taken against him. A reply letter advised the Applicant that the Government of Canada had not yet announced any disciplinary action involving him, and did not state that any such action was planned or that the Governor General in Council was dissatisfied with him.

Shortly after this exchange of correspondence, the newspaper, Le Soleil, published an article in which the journalist quoted several statements by the Applicant in response to Ms. Bédard’s allegations and also regarding Ms. Bédard personally. In the article, the Applicant asserted that Ms. Bédard was taking advantage of the federal sponsorship scandal for her personal gain and was “lying shamelessly”. He also referred to Ms. Bédard’s status as a single mother and that she was a “poor girl who deserves pity”.

Two days later, the Minister of Transport provided the Applicant with a copy of an Order by the Governor General in Council, terminating his appointment as Chair of the Board of Directors of VIA Rail. Earlier that day, in telephone calls with the Minister of Transport and an Official from the Office of the Prime Minister, the Applicant was not given the opportunity to respond when he was informed that a decision would be made regarding him. He was also denied details regarding the grounds and nature of the decision that was pending.

The Applicant applied for judicial review based on the alleged default by the Governor General in Council to respect the procedural guarantees applicable to the Applicant. Specifically, the Applicant applied for an Order of certiorari setting aside the termination Order and an application for an Order declaring the full force and effect of the appointment Order.

The Court first considered the scope or nature of the duty of procedural fairness imposed on the Governor General in Council. The nature of the decision in question, the relationship between the Governor General in Council and the Applicant, and the effect of the impugned decision on him led to the conclusion that the Governor General in Council was bound by a duty to act fairly. The fact that a position was occupied at pleasure did not preclude compliance with the duty to act fairly. While such a person may be dismissed in the absence of a duty to establish just cause, this does not mean the person is not entitled to any procedural guarantees. Moreover, there is nothing in either the contract or the legislative provisions or stipulations that could extinguish or modify the duty of procedural fairness.

The duty in this case was minimal: the employer must communicate to the employee the reasons for his dissatisfaction and give the employee an opportunity to be heard.

An employee need not be informed that disciplinary action against him or her is being considered in all circumstances. The factors that may be considered include the legislative context, the fact that a disciplinary process is already underway, the discussions that have taken place between employer and employee, the time that has passed and the employee’s experience. These circumstances may make it obvious to the employee that disciplinary action against him or her is being considered. In this case, there was no disciplinary process underway and the events occurred in a sudden flurry.

An employee facing disciplinary action is also entitled to know that the purpose of the forum in which he is speaking is to hear him on that subject. The employee must grasp the seriousness of the situation. Otherwise, the employee’s right to be made aware of the reasons for the employer’s dissatisfaction and to answer those reasons will be seriously affected.

The evidence also established that the Applicant was at no time expressly informed of the reason or reasons for the dissatisfaction on the part of the Governor General in Council that led to his removal. The Court held that it could not be assumed that the Applicant had de facto knowledge of the reason or reasons for the Governor General in Council’s dissatisfaction.

An employee need not be expressly informed of the reasons for dissatisfaction with him or her in all circumstances. The context may mean that the person in fact knew the reasons for the dissatisfaction with him or her, particularly if there was only one reason and the dissatisfaction was necessarily based on an isolated incident. In this case, there were several reasons that could have led to the Applicant’s removal, and the reason or reasons in question were at no time clearly stated. Even on the date of the termination, the Minister of Transport refused to tell the Applicant the reason or reasons for dissatisfaction with him.

The Court also found that the Applicant had had no real opportunity to answer. The Applicant did not have a real opportunity to change the employer’s mind regarding the disciplinary action that was being considered against him, or to respond to the reason or reasons for dissatisfaction. His right to answer was therefore compromised. In this regard, it was not up to the Court to determine whether the reasons cited by the Applicant might excuse what he said about Ms. Bédard or, in deciding whether the employee was given a right to answer, whether the Applicant’s justifications would have affected the Governor General in Council’s decision.

In the result, the Court found that the Applicant had not been provided with the procedural guarantees to which he was entitled. A decision of the Governor General in Council that is made in violation of the rules of procedural fairness does not have the force of law and a remedy may be granted in respect of such decisions. The Order in Council was set aside and the Applicant’s case was referred back to the Governor General in Council to take its course.

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