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[28] However, the Attorney General seeks to draw a distinction between Mr. Pelletier’s position and that of other persons holding appointments at pleasure. He says that the removal of Mr. Pelletier from office is a political matter and, as such, is subject to a different regime than those cases which resemble Knight. Having regard to the political nature of the process by which Mr. Pelletier was appointed and then removed, the Attorney General argues that the content of the duty of fairness is much reduced.
[29] Where the government seeks to replace an appointee holding office at pleasure for purely partisan political reasons, the Attorney General, while conceding that while some form of procedural fairness is mandated by the statutory nature of the power being exercised, argues that the content of that duty is even more limited than the duty imposed in Knight. On the other hand, where the government seeks to remove an office holder for misconduct, the Attorney General concedes that a higher standard of procedural fairness applies. However, even in those cases, the requirements of procedural fairness are tempered by constraints such as the fact that the government (i.e. Cabinet) generally acts through senior civil servants who may not know what the government proposes to do after it deliberates, and who are bound by Cabinet confidentiality if they do know.
[30] These considerations lead the Attorney General to argue that Mr. Pelletier was owed a duty of procedural fairness falling below that identified in Knight, specifically, that there was no need for an express notice of the grounds for the government’s dissatisfaction. In support of this position, the Attorney General relied upon selected passages from the decision of the Supreme Court in Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 and a decision of the High Court of Australia, The State of South Australia v. O’Shea (1987), 163 C.L.R. 378 (H.C.). It is sufficient, says the Attorney General, that the person knows or ought to know, by virtue of all of the surrounding circumstances, that their appointment is at risk.
[31] The Attorney General says the application judge made three mistakes in deciding the matter as he did. The first is that he erred in his assessment of the evidence of the telephone conversation between Messrs Coté and McCutcheon and Mr. Pelletier. Given Mr. Pelletier’s sophisticated understanding of the inner workings of government, and the circumstances surrounding the call itself, the application judge ought to have found that Mr. Pelletier either knew, or ought to have known, at the time of his conversation with Messrs Coté and McCutcheon that his office was at risk. Had the application judge drawn the proper conclusion as to Mr. Pelletier’s state of mind and, had he given effect to the fact that Mr. Pelletier was asked if he had anything else to say, the application judge would have concluded that Mr. Pelletier was aware of the reasons for the government’s dissatisfaction with him and was given an opportunity to be heard.
[32] The Attorney General’s second argument is that the application judge erred when he held that it was not appropriate for him to speculate as to Mr. Pelletier’s state of mind. Given the nature of the argument made by the Attorney General, the application judge was bound to decide whether Mr. Pelletier knew or ought to have known that his position was at risk. By failing to do so, the application judge essentially failed to exercise his jurisdiction.
[33] The Attorney General’s third argument bears on the standard of proof. He alleges that the application judge reversed the onus of proof by requiring the Attorney General to show that Mr. Pelletier did not know, or was not confused as to the precariousness of his position in the period following the publication of the Cardinal article. The Attorney General argues that it was for Mr. Pelletier to make the case that he was confused or uncertain since he is better placed to comment on his state of mind than is the Attorney General.
Analysis of the Attorney General’s Arguments [34] As a preliminary matter, it is important to remember that the issue in this case is not whether the government was entitled to put an end to Mr. Pelletier’s appointment. Mr. Pelletier held his office at pleasure; the government was entitled to remove him at any time for any reason. The duty of procedural fairness, whatever its content, deals only with the process by which the government exercises its right to terminate his appointment, and not with the substance of the decision itself. The right to be given reasons and the right to be heard do not create, by implication or otherwise, a right to be removed from office only for reasons which meet some standard of rationality: see Knight at pages 674 - 675: The justification for granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment, fairness dictates that the administrative body making the decision be cognizant of all relevant circumstances surrounding the employment and its termination (Nicholson, supra, at p. 328, per Laskin C.J.). One person capable of providing the administrative body with important insights into the situation is the office holder himself. As pointed out by Lord Reid in Malloch v. Aberdeen Corp., supra, at p. 1282: "The right of a man to be heard in his own defense is the most elementary protection of all ...." To grant such a right to the holder of an office at pleasure would not import into the termination decision the necessity to show just cause, but would only require the administrative body to give the office holder reasons for the dismissal and an opportunity to be heard. … The argument to the effect that, since the employer can dismiss his employee for unreasonable or capricious reasons, the giving of an opportunity to participate in the decision-making would be meaningless, is unconvincing. In both the situation of an office held at pleasure and an office from which one can be dismissed only for cause, one of the purposes of the imposition on the administrative body of a duty to act fairly is the same, i.e., enabling the employee to try to change the employer's mind about the dismissal. The value of such an opportunity should not be dependant on the grounds triggering the dismissal.
[35] To the extent that the Attorney General’s position is that a decision to revoke an appointment of one who serves at pleasure for misconduct is subject to a higher standard of procedural fairness than a purely political decision, the facts of this case call for the higher standard since the revocation of Mr. Pelletier’s appointment was clearly based upon an allegation of misconduct. The government’s press release leaves no doubt on that score.
[36] The question then becomes the content of that higher standard of procedural fairness. The Supreme Court’s decision in Knight established, and its subsequent decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 confirmed, that the duty of fairness is variable according to the circumstances.
[37] The Attorney General argues that, given the political nature of Mr. Pelletier’s appointment the duty of fairness was satisfied if, as the Attorney General alleges, he knew or ought to have known that his office was at risk and why.
[38] With respect, the argument is one of form over substance in that the purpose of express notice is to ensure that those at risk are aware of the jeopardy they face and the reasons for that jeopardy. Nothing in Knight would support the conclusion that a person who was fully aware of the risk of removal and of the grounds of disapproval could nonetheless establish a violation of procedural fairness from the mere fact that formal express notice had not been given.
[39] It is one thing to say that the duty of fairness to a person in the position in the position of Mr. Pelletier is satisfied when that person knows, even in the absence of express notice, on the basis of the surrounding circumstances, that his or her office is at risk and the reasons for which it is. It is quite another thing to say that the duty of procedural fairness to that person is satisfied when, absent express notice, they ought to know, on the basis of the surrounding circumstances, that his or her appointment is at risk and the reasons why. The difference lies in the fact that the person with actual knowledge is in a position to make appropriate representations to the decision-maker. The person who has only constructive knowledge, i.e. the person who ought to know, is not in a position to be heard because that person has no present knowledge that he or she is at risk or why, even if, objectively, they ought to know. One can hardly impose on a person, in the name of procedural fairness, the obligation to anticipate trouble and to mount a defence before being attacked Procedural fairness requires actual knowledge of the pending threat and of the reasons for it; constructive knowledge will not do. Consequently, the issue in this case is whether Mr. Pelletier actually knew, notwithstanding the absence of express notice, that his position was at risk and why it was at risk.
[40] The Attorney General attempted to bolster his argument by arguing that express notice was not only not required, but not possible because of the constraints under which the power to remove Mr. Pelletier from office was exercised. He argued that Messrs Coté and McCutcheon could not provide Mr. Pelletier with more information than they did because they were bound by Cabinet confidentiality, as was Mr. Valeri. This argument is spurious. Cabinet confidentiality did not prevent the issuance of a press release in which the government justified its removal of Mr. Pelletier from office. If it was appropriate to make such an announcement to the public at large after terminating Mr. Pelletier’s appointment, it was surely appropriate to raise the matter squarely with Mr. Pelletier prior to doing so.
[41] It does not assist the Attorney General that he chose not to file affidavits from Mr. Coté, Mr. Himelfarb, Mr. Valeri or Mr. Reynolds. If the constraints alleged by the Attorney General were truly a factor in the conduct of these gentlemen, then it was easy enough to have them say so under oath. Argument and speculation are no substitute for evidence.
[42] This leads to the next issue which is the application judge’s purported failure to speculate as to Mr. Pelletier’s state of mind. The Attorney General says that the question of Mr. Pelletier’s knowledge of the situation is the key issue in the litigation and that the application judge was bound to decide it. It is obvious that the application judge did decide this question, in that he concluded that Mr. Pelletier did not know of the reasons for his removal until after the fact: see paragraph 94 of his reasons. The issue is not so much what he decided but how he decided it. The judge’s comment that he should limit himself to the facts and not speculate as to Mr. Pelletier’s state of mind suggests to the Attorney General that the application judge simply refused to consider the evidence which would have established Mr. Pelletier’s state of mind.
[43] Mr. Pelletier was well aware of the government’s first area of concern – the sponsorship scandal. He had, however, received Mr. Himelfarb’s written assurance on February 26, 2004 that the government had announced no measures to be taken with respect to his situation, in spite of a National Post story about rumours to that effect. These assurances may have comforted Mr. Pelletier somewhat prior to the appearance of the Cardinal article. After its publication, the issue was a live one once more.
[44] As for the government’s second area of concern – Mr. Pelletier’s comments with respect to Ms. Bédard – the application judge’s review of the evidence led him to conclude that Mr. Pelletier was never told that this incident put his appointment at risk. Whether Mr. Pelletier knew or should have known that something was afoot is not the test; the question is whether Mr. Pelletier knew that his removal was under active consideration. The judge inferred from the evidence that Mr. Pelletier was not aware that he was at risk of removal and the reasons why he was at such risk.
[45] Given that Mr. Pelletier swore in his affidavit that he first learned of the reasons for his removal from office when he read the government’s press release, it is significant that the Attorney General chose not to cross-examine him on his affidavit. The Attorney General had the means to test his theory that Mr. Pelletier knew that his office was at risk prior to its revocation, but in doing so he ran the risk that Mr. Pelletier’s evidence would not support his theory. Having declined to run that risk, the Attorney General cannot credibly ask the application judge to draw a conclusion which must have appeared to him to be unlikely to be supported by Mr. Pelletier’s evidence.
[46] The Attorney General’s argument that the application judge declined to inquire into Mr. Pelletier’s state of mind does not stand up to examination. The judge drew the inference that Mr. Pelletier was not aware of the risk he faced. As pointed out by the Supreme Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paragraph 23, inferences of fact drawn by a judge of first instance are entitled to the same deference as conclusions of fact: 23 We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. As we discuss below, it is our respectful view that our colleague's finding that the trial judge erred by imputing knowledge of the hazard to the municipality in this case is an example of this type of impermissible interference with the factual inference drawn by the trial judge.
[47] The Attorney General’s third argument, dealing with the shifting of the onus of proof is also doomed to failure. By choosing to argue that Mr. Pelletier either knew or ought to have known that his appointment was at risk, the Attorney General assumed the burden of proving the facts which would support his argument. The Attorney General’s evidence did not persuade the application judge that he should draw the conclusion which he was asked to draw. The only burden of proof which the Attorney General had to discharge was the one which he assumed.
[48] Finally, given the issues related to the question of notice, little attention was devoted to the issue of the opportunity to be heard. The Attorney General attempted to argue that Mr. Pelletier could have exercised his right to be heard by speaking either to Messrs Coté and McCutcheon, or Mr. Valeri, but it is clear that without notice of the jeopardy to which he was exposed, there was nothing for Mr. Pelletier to say.
CONCLUSION [49] In light of the above, I conclude that where the government, in the exercise of its statutory power to terminate the appointment of persons named to office at pleasure, proposes to act on the basis of a person’s misconduct, the duty of procedural fairness requires that, where that person does not know that his or her position is in jeopardy by reason of that misconduct, the person be informed of the possibility of removal and of the reasons for that removal, and be given the opportunity to be heard. I have deliberately refrained from speaking of “disciplinary reasons” because it seems to me to be inappropriate to import into the context of the removal, by the executive branch of government, of persons holding office at pleasure, notions which are generally associated with wrongful dismissal in the context of an employer/employee relationship.
[50] In the circumstances, I would dismiss the appeal with costs to the respondent. Mr. Pelletier asked that he be awarded costs on a solicitor and client basis. Costs are not generally awarded on that basis unless “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties” (Baker, paragraph 77). No such conduct having been shown in this case, costs will be awarded on a party and party basis and will be assessed in column III of Tariff B of the Federal Courts Rules.
"J.D. Denis Pelletier" J.A.
“I agree. Robert Décary J.A.”
“I agree. M. Nadon J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-620-05
(APPEAL FROM A JUDGMENT OF THE FEDERAL COURT OF CANADA DATED NOVEMBER 18, 2005 (T-668-04)).
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. JEAN PELLETIER
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 19, 2006
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: DÉCARY J.A. NADON J.A.
APPEARANCES:
SOLICITORS OF RECORD:
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