Administrative Law – Natural Justice – Bias
– Public Inquiries
The Honourable Alfonso Gagliano (the
"appellant") appealed the decision of
the Federal Court to dismiss his application for judicial review of
a report of the Commission of Inquiry into the Sponsorship Program
and Advertising Activities (the "Sponsorship
Inquiry"). The Sponsorship Inquiry, led by
Commissioner John Gomery, was mandated to investigate allegations
of corruption and mismanagement of a federal program purportedly
designed to promote national unity by advertising federal programs
and initiatives. The report in dispute was the Phase I Report of
the Sponsorship Inquiry, entitled "Who is Responsible
– Fact Finding Report" (the
"report"). The report concluded that
responsibility for the program's problems lay in part with the
appellant, who had served as Minister of Public Works and
Government Services Canada.
Before the Federal Court, the appellant was unsuccessful in
arguing that the report's findings should be set aside on the
basis that Commissioner Gomery was biased.
On appeal, the appellant argued, among other grounds, that the
Federal Court erred by: (1) applying a different test for bias
in his case from the test applied in a judicial review of the same
report by former Chief of Staff Jean Pelletier; (2) failing to take
into account various grounds raised in support of his allegations
of bias; (3) applying an overly onerous burden of proof of bias;
and (4) deciding that Commissioner Gomery's conduct did not
give rise to a reasonable apprehension of bias.
The Federal Court of Appeal confirmed that courts must apply
different standards to allegations of bias depending on the
context, and in particular, that allegations of bias in a public
inquiry are not to be accorded the same treatment as allegations of
bias in a criminal or civil trial. The court posited that public
inquiries investigate rather than adjudicate, and that the
inquisitorial process cannot be held to the same standard of bias
as an adversarial process; investigations must seek out information
themselves, while an adversarial process allows a court to weigh
evidence that is collected and submitted by the parties.
The court therefore confirmed two distinctive tests to be
applied to allegations of bias during public inquiries, depending
on the stage at which the challenge is launched. While the public
inquiry is still underway, the commissioner will only be
disqualified for bias if there is a reasonable apprehension that
the commissioner's decisions are made on a basis other than the
evidence. When bias is alleged against a commissioner after the
report of a public inquiry has been issued, the conclusions of the
report will be upheld if they are supported by "some evidence
in the record of the inquiry".
The Federal Court of Appeal found that the Federal Court's
decision was based on a finding that Commissioner Gomery's
conclusions were supported by some evidence and the court did not
disturb this finding. As this is the appropriate test for bias in a
public inquiry once its report has been issued, the court found
that it was unnecessary to consider other grounds raised by the
appellant in support of his allegations of bias, or whether
Commissioner Gomery's conduct gave rise to a reasonable
apprehension of bias. The court also found that the same test had
been applied to both Mr. Pelletier and the appellant, and that the
outcome of their applications had differed because the fact
situations in the two cases were not identical.
With respect to the alleged unfair burden placed on the
appellant, the Federal Court of Appeal found no fault with the
Federal Court's assertion that the onus of demonstrating bias
is high, particularly in light of the Federal Court of Appeal's
earlier comments regarding the higher threshold for proving bias
arising from the inquisitorial nature of public inquiries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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