T-722-96
BETWEEN:
C. JUSTIN GRIFFIN,
Applicant,
-and-
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
WETSTON J.:
This is an application for judicial review of a decision of the Selection Review Committee (the "Committee") of the National Parole Board (the "Board"), dated February 26, 1996, not to grant the applicant an interview for an appointment as a part-time member of the Board.
The Governor in Council, on the recommendation of the Minister, is empowered by section 103 of the Corrections and Conditional Release Act, R.S.C. 1989, c. C-44.6 (the "Act"), to appoint full and part-time members to the National Parole Board. Notice of all vacancies appears in the Canada Gazette, Part I. The Chairperson of the Board submits a list of candidates to the Minister, who in turn makes recommendations to the Governor in Council.
Section 103 of the Act states:
| The National Parole Board is hereby continued, to consist of not more than forty-five full-time members and a number of part-time members appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for periods not exceeding ten years and three years, respectively. |
A Selection Review Committee of the Board conducts the initial screening of candidates. The Committee discusses the candidates with the Chairperson and a list of candidates for interviews is selected. A list of candidates is then prepared for the Minister. After interviews are held with these candidates, recommendations are sent both to the Minister and Prime Minister's office for consideration. A final list is then submitted by the Minister to Cabinet for appointment to the Board.
In 1995, the applicant responded to a notice in the Canada Gazette for a part-time Board member position in the Ontario and Quebec regions. The notice outlined the qualifications for "preferred candidates" and, furthermore, indicated that the notice was intended to assist the Governor in Council in identifying qualified candidates but that it would not be the sole means of recruitment. The applicant was asked to relate his experience to the criteria listed in the notice. These criteria included experience in the criminal justice system, particularly conditional release, community work, interpretation and application of legislation, and knowledge of the roles and responsibilities of a National Parole Board member. As well, it was indicated that proficiency in both official languages would be preferable. The notice is as follows:
| NOTICE OF VACANCIES |
| NATIONAL PAROLE BOARD |
| Part-time Members - Ontario Region, Quebec Region |
| The National Parole Board (NPB) is an independent, administrative agency. The NPB makes decisions on the conditional release of offenders sentenced to federal penitentiaries and for offenders sentenced to provincial institutions in the provinces and territories where there are no provincial boards of parole. The NPB also renders decisions on the granting of pardons for ex-offenders who have successfully re-entered society as law-abiding citizens. |
| Location: Ontario Region: Kingston, Ontario--Part-Time positions |
| Quebec Region: Montréal, Quebec--Part-Time positions |
| The preferred candidates will be committed to excellence in corrections, in particular conditional release, and will possess the following knowledge, abilities and personal ability: |
| Knowledge, and preferable experience in: |
| - the criminal justice system, in particular corrections and conditional release; |
| - community work; |
| - the interpretation and application of the applicable legislation pertaining to NPB (including Corrections and Conditional Release Act and its Regulations and the Criminal Records Act) as well as duty to act fairly; |
| - roles and responsibilities of an NPB member. |
| Abilities/Skills: |
| - excellent analytical skills; |
| - ability to quickly synthesize relevant case information; |
| - clear, concise and comprehensive writing skills; |
| - effective interviewing skills; |
| - efficient in managing time and setting priorities; |
| - ability to carry a heavy workload and perform in a stressful environment. |
| Personal Suitability: |
| - adaptability and flexibility; |
| - effective and independent work habits as well as an ability to work as a team member; |
| - discretion in managing highly sensitive information; |
| - respectful of differences--cultural, racial, gender, etc. |
| The chosen candidates for the Appeal Division will principally be required to do in-office reviews of conditional release decisions to ensure that decisions rendered are fair and equitable and comply with the legislation and the Board's policies and procedures. |
| Proficiency in both official languages is preferable. |
All applications will be treated confidentially.
| This notice has been placed in the Canada Gazette to assist the Governor in Council in identifying qualified candidates for these positions. It is not, however, intended to be the sole means of recruitment. |
| Please ensure that your curriculum vite and/or your letter of application address(es) the above criteria and send it by December 18, 1995 to ... |
The applicant submitted a resume in French and emphasized that he had fifteen years experience in the penal justice system as well as a degree in law. The applicant had earlier submitted a more detailed English version of his resume to the Board and believed that the Board had retained the English version and would also be considering that information. The applicant's qualifications included thirteen years experience with Corrections Services Canada, participation in community groups, legal training and fluency in both official languages.
The applicant was notified on February 26, 1996, that he had not been selected for an interview. It would appear that around January 5, 1995, the applicant had initially been identified for an interview; however, after a conference call with members of the Committee, including the Chair of the Committee, the applicant was removed from the interview list. The applicant contends that, due to a previous relationship between himself and the Chair of the Committee, the Committee's selection was biased or, at the very least, gave rise to a reasonable apprehension of bias. The applicant now seeks a review of the decision of the Committee to not grant him an interview.
The applicant raises at least four issues in this application for judicial review:
| 1. Is the decision of the Committee to not grant an interview subject to judicial review under section 18.1 of the Federal Court Act? |
| 2. If yes, was the applicant owed a duty of fairness and did the Minister breach that duty? |
| 3. If no procedural fairness is owed, did the government's actions in advertising the vacancies give the applicant a legitimate expectation that he would be granted an interview? |
| 4. Did the Selection Committee base its finding on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it? |
Analysis
The Federal Court is granted, by virtue of section 18.1, a broad scope for judicial review: Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services) (1995), 125 D.L.R. (4th) 559 (F.C.A.).
Pursuant to section 103, the Governor in Council has full discretionary authority to appoint members upon the recommendation of the Minister. The role of the Minister is contained in the statute. Section 105 of the Act outlines certain general qualifications which Board members should possess; however, the Act does not provide procedures which the Minister should follow in selecting or recommending potential Board members. While the Minister's role is a requirement, the method utilized to identify, select and recommend possible members to Cabinet is not contained in the statute or regulations.
In this case, the applicant is not challenging the power of the Governor in Council to appoint, or the decision-making power of the Minister to recommend, but rather the decision of the selection committee established by the Minister. The initial question, therefore, is whether the decision of the committee not to grant the applicant an interview is subject to judicial review under section 18.1.
A minister of the Crown is not strictly required to exercise a statutory power personally. This principle is reflected in the Carltona doctrine which is discussed by David Mullan in his text Administrative Law, 3rd ed (Toronto: Carswell, 1996), at pages 190-191 as follows:
| A minister of the Crown is entitled to act through a responsible person in his or her department. This is not strictly a delegation, since the person exercising the power acts in the name of the Minister or as the Minister. The exercise of power by the ministerial official does not depend on the presence of any formal authorizing instrument.... The minister is accountable to the legislature, not the courts, for the actions of his or her subordinates. The doctrine perforce applies to statutory functions that are conferred on the Governor in Council; they may be performed by the relevant Minister acting through her or his subordinates and carrying forward a recommendation to the Governor in Council. To that extent, any procedural obligations stemming from the exercise of the power may be satisfied at the ministerial or departmental level. [footnotes omitted] |
In this case the Committee was appointed by the Minister to perform the initial identification and selection for the interview process. This was squarely within the powers of the Minster and the function can be considered incidental to the agency's responsibilities: see Interpretation Act, paragraph 24(2)(a). I am satisfied, therefore, that the committee, acting in the name of the Minister, was subject to the same level of procedural fairness as the Minister. In this regard, it is my opinion that the decision maker was acting pursuant to statutory authority and is subject to review under section 18.1.
The Act clearly grants the Minister a very broad discretion in deciding to recommend future part-time Board members to Cabinet. While categorization is unnecessary, this power to recommend is most certainly administrative and executive in nature. In Martineau v. Matsqui Institution disciplinary Board (No. 2) (1979), 106 D.L.R. (3d) 385, at page 410, the Supreme Court stated:
| A purely Ministerial decision, on broad grounds of public policy, will typically offer the individual no procedural protection and any attack upon such a decision will have to be founded upon abuse of discretion. |
The applicant and the Committee had no previous relationship in the sense of having any pre-existing benefit removed: Re Webb and Ontario Housing Corporation (1978), 93 D.L.R. (3d) 187 (Ont. C.A.). Appointment to the National Parole Board is a matter of broad public policy, not entirely dissimilar to judicial appointments or other positions of public trust: A.G. (NSW) v. Quinn (1990), 93 A.L.R. 1 (H.C. of A.). In my opinion, no procedural protection flows from the decision of the Minister in the absence of an abuse of discretion including acting in bad faith.
The applicant further alleges reasonable apprehension of bias on the grounds that he had previously threatened to sue Correction Services Canada for breach of contract and had communicated that intention in writing to the then acting director, Mr. Gibbs. Mr. Gibbs was the Chair of the selection committee and involved in screening the candidates for Board positions which the applicant had applied for. The alleged contract in respect of which the applicant was threatening to sue did not involve Mr. Gibbs, but rather involved representations made by Mr. Gibbs' predecessor at Correctional Services Canada. Mr. Gibbs had simply been advised of the applicant's intentions to sue by virtue of his position as acting director within the Department. I do not believe that there is sufficient evidence that would cause a reasonably well informed person to believe that the Chairperson was biased against the applicant in this case: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] S.C.R. 1170. However, the applicant has failed to demonstrate, in this regard, that the committee acted in bad faith.
The applicant also asserts an entitlement to procedural fairness on the basis of a legitimate expectation. A legitimate expectation arises when a public official leads a person to believe that a decision affecting their rights will not be taken without some form of hearing, procedure or consultation: Mullan, supra, page 214. The applicant contends that the notice gave rise to a legitimate expectation that those candidates with the enumerated qualifications would be granted an interview. He contends that given his qualifications he should have been granted an interview.
I am satisfied that the notice in no way created a legitimate expectation on the part of the applicant that he would be granted an interview. The notice is clear that there are a variety of qualifications sought for the position of a Board member. It is equally clear, however, that many of the listed qualifications are subjective in nature and that the Committee must exercise its discretion in determining those candidates to be interviewed. The Minister did not represent that all candidates with the enumerated qualifications would be interviewed; simply that they would be considered "preferred candidates". In my opinion, such a representation could not give rise to the legitimate expectation which the applicant claims.
The applicant also alleges that the record discloses an error which was made in a capricious or perverse manner without regard to the evidence before it. In particular, in the "chart for selection process of candidates for the Board member positions" the applicant is described as having worked with Correctional Services Canada as a Case Management Officer from 1980-83. The applicant had actually worked in that position from 1980-1993, for thirteen years and not three.
I am satisfied that there was an error in this document, but I cannot conclude that the error was made in a perverse or capricious manner without regard to the material before it. While the respondent offered no explanation for this error, the applicant's resume, which was also before the committee, contained the correct dates and was considered by the selection committee in making its recommendations. This error is insufficient to justify setting aside the decision to not grant an interview.
In conclusion, I am of the opinion that the decision to not grant an interview to the applicant cannot be set aside. It is discretionary and made on the basis of broad public policy grounds which can only be set aside on the basis of the abuse of discretion including acting in bad faith. The applicant has not demonstrated that such grounds exist. Nor has he demonstrated any other grounds to set aside the decision.
Accordingly, the application for judicial review is dismissed.
"H. Wetston"
J.F.C.C.
Toronto, Ontario
March 20, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-722-96
STYLE OF CAUSE: C. JUSTIN GRIFFIN
- and -
| HER MAJESTY THE QUEEN |
DATE OF HEARING: JANUARY 13, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: MARCH 20, 1997
APPEARANCES:
Mr. C. Justin Griffin
86 North Park Street
Brantford, Ontario
N3R 4K1
Fax: (519) 753-3048
For the Applicant
Ms. Claire le Riche
For the Respondent
SOLICITORS OF RECORD:
Mr. C. Justin Griffin
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: T-722-96
Between:
C. JUSTIN GRIFFIN
Applicant
- and -
| HER MAJESTY THE QUEEN |
Respondent
REASONS FOR ORDER