Federal Court of Appeal Decisions

     A-672-96

     (T-1311-96)

CORAM:      PRATTE J.A.

     STONE J.A.

     DESJARDINS J.A.

IN THE MATTER OF an Inquiry Pursuant to Part I of the Inquiries Act, R.S.C. 1985, c. I-11 into The Chain of Command System, Leadership Within the Chain of Command, Discipline, Operations, Actions and Decisions of the Canadian Forces and the Actions and Decisions of the Department of National Defence in Respect of the Canadian Forces Deployment in Somalia and a Report Thereon, pursuant to Order in Council, P.C. 1995-442

BETWEEN:

     BRIGADIER-GENERAL ERNEST B. BENO

     Applicant

     - and -

     THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER

     and CHAIRPERSON, PETER DESBARATS, COMMISSIONER, THE

     HONOURABLE ROBERT RUTHERFORD, COMMISSIONER,

     ATTORNEY GENERAL OF CANADA, MAJOR BARRY

     ARMSTRONG, LCOL. PAUL MORNEAULT, MAJOR

     VINCENT J. BUONAMICI

     Respondents

     - and -

     BRIGADIER-GENERAL ROBERT C. MEATING

     Appellant

     (Proposed Intervenor)

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario,

     on Monday, November 18, 1996)

PRATTE J.A.

     We are all of opinion that this appeal must fail.

     The appellant has no interest in the outcome of the judicial review proceedings brought by Brigadier-General Beno ("Beno") in which he seeks to intervene. The only issue in those proceedings is whether the Chairman of the Commission of inquiry into the deployment of Canadian forces to Somalia ("the Commission") shall be disqualified from participating in that inquiry. The appellant, whose conduct is not under investigation by the Commission, will not be affected in any way by the answer that will be given to that question.

     In fact, the purpose of the appellant's proposed intervention is neither to support nor to oppose Beno's application for judicial review, but to show that the Commission, in the reasons it gave in support of its decision that is the subject of Beno's application for judicial review, made unjustified and damaging comments on the affidavit evidence he had given in support of Beno's application to the Commission. As stated by the judge of first instance, the appellant is merely a witness who gave evidence before the Commission in proceedings in which he had no interest and who wants to be given an opportunity to challenge the assessment that the Commission made of his evidence. One may not be allowed to intervene for such a purpose.

     True, the appellant may be in a position to give further evidence that may be of assistance to the Court in determining whether the Chairman of the Commission should be disqualified. But this does not help him, since it is up to Beno, the applicant in the judicial review proceedings in which the appellant seeks to intervene, to adduce the evidence that he deems necessary to support his application.¹

     The appeal will be dismissed without costs.

     "Louis Pratte"

     J.A.

     A-672-96

     (T-1311-96)

CORAM:      PRATTE J.A.

     STONE J.A.

     DESJARDINS J.A.

IN THE MATTER OF an Inquiry Pursuant to Part I of the Inquiries Act, R.S.C. 1985, c. I-11 into The Chain of Command System, Leadership Within the Chain of Command, Discipline, Operations, Actions and Decisions of the Canadian Forces and the Actions and Decisions of the Department of National Defence in Respect of the Canadian Forces Deployment in Somalia and a Report Thereon, pursuant to Order in Council, P.C. 1995-442

BETWEEN:

     BRIGADIER-GENERAL ERNEST B. BENO

     Applicant

     - and -

     THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER

     and CHAIRPERSON, PETER DESBARATS, COMMISSIONER, THE

     HONOURABLE ROBERT RUTHERFORD, COMMISSIONER,

     ATTORNEY GENERAL OF CANADA, MAJOR BARRY

     ARMSTRONG, LCOL. PAUL MORNEAULT, MAJOR

     VINCENT J. BUONAMICI

     Respondents

     - and -

     BRIGADIER-GENERAL ROBERT C. MEATING

     Appellant

     (Proposed Intervenor)

Heard at Ottawa, Ontario, on Monday, November 18, 1996.

Judgment rendered from the Bench on November 18, 1996.

REASONS FOR JUDGMENT OF THE COURT BY:      PRATTE J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-672-96

     (T-1311-96)

IN THE MATTER OF an Inquiry Pursuant to Part I of the Inquiries Act, R.S.C. 1985, c. I-11 into The Chain of Command System, Leadership Within the Chain of Command, Discipline, Operations, Actions and Decisions of the Canadian Forces and the Actions and Decisions of the Department of National Defence in Respect of the Canadian Forces Deployment in Somalia and a Report Thereon, pursuant to Order in Council, P.C. 1995-442

BETWEEN:

     BRIGADIER-GENERAL ERNEST B. BENO

     Applicant

     - and -

THE HONOURABLE GILLES LETOURNEAU, COMMISSIONER and CHAIRPERSON, PETER DESBARATS, COMMISSIONER, THE HONOURABLE ROBERT RUTHERFORD, COMMISSIONER, ATTORNEY GENERAL OF CANADA, MAJOR BARRY ARMSTRONG, LCOL. PAUL MORNEAULT, MAJOR VINCENT J. BUONAMICI

     Respondents

     - and -

     BRIGADIER-GENERAL ROBERT C. MEATING

     Appellant

     (Proposed Intervenor)

     REASONS FOR JUDGMENT

     OF THE COURT

__________________

¹      The judge of first instance seems to have assumed that the Commission had the jurisdiction to rule on the ability of its Chairman to participate in the inquiry and that the only question raised by Beno's application for judicial review related to the legality of that decision. He accordingly held that the judicial review proceedings would be decided only on the basis of the evidence that the Commission had before it. We doubt the correctness of those assumptions and of that conclusion. We incline to think that the Commission lacked the jurisdiction to rule on the disqualification of its Chairman and that, on an application for judicial review and prohibition based on a reasonable apprehension of bias on the part of a member of a tribunal, the applicant is always entitled to adduce in support of his application any evidence tending to show the alleged bias.