The Federal Court of Appeal has dismissed a case by former CRTC commissioner Raj Shoan over his termination from the regulator, characterizing his allegations of racial bias as a “new issue” that was not raised during his earlier application for judicial review.
Mr. Shoan, whose legal battles brought internal conflict at the Canadian Radio-television and Telecommunications Commission into public view, was appealing his second termination from his post as Ontario regional commissioner, which occurred in 2017, less than a year after the federal cabinet dismissed him the first time. He was also seeking a declaration that cabinet should have investigated allegations of racism that he had raised while working at the commission.
Mr. Shoan had specifically requested, in a June 14, 2016, letter, that then-heritage minister Mélanie Joly investigate “racially charged conduct” at the CRTC, according to court documents. He alleges a colleague had referred to him as a “spoiled, rich brown kid" and made other racially insensitive comments.
Justice David Stratas dismissed the case on Monday, saying in reasons issued later that cabinet’s “alleged obligation to investigate racial bias” is a new issue that Mr. Shoan failed to raise during his initial application in the Federal Court.
“New issues should generally not be heard by a reviewing court,” Justice Stratas wrote. “We exercise our discretion against entertaining this new issue.”
Mr. Shoan said in an e-mail that he is “disappointed that the Court chose to characterize racial bias issues – which have been ever present in the tribunal record – as a ‘new’ issue.”
“I am exploring the options before me and will make a considered choice with respect to next steps in the coming days," Mr. Shoan added.
Mr. Shoan was appointed to the CRTC in 2013, and his appeal is part of a lengthy legal battle that revealed tensions between the regional commissioner and then-CRTC chairman Jean-Pierre Blais. The feud between the two came to light in 2015, when Mr. Shoan sought judicial review of a finding that he had harassed a CRTC employee through e-mail. The workplace harassment complaint was later tossed out by a Federal Court, which found the investigators had approached the case with a “closed mind.”
Mr. Shoan, a lawyer and former director of regulatory affairs at the CBC, was first dismissed from the commission in June, 2016, amid multiple legal actions he had filed. He had repeatedly butted heads with Mr. Blais over what he characterized as the chairman overstepping his powers.
Mr. Shoan sought a judicial review of his dismissal and won, but his reinstatement as a commissioner was short-lived. In May, 2017, mere days after he had returned to his job, the federal cabinet again revoked Mr. Shoan’s appointment.
Mr. Shoan challenged the second firing in court, but this time he lost. A Federal Court judge dismissed his application for judicial review, saying that the cabinet decision had appropriate procedural fairness. That is the decision that Mr. Shoan was appealing.
The Attorney-General of Canada had argued in court filings that the case should be dismissed because the cabinet had communicated to Mr. Shoan the grounds for his dismissal: inappropriate contact with stakeholders, his failure to follow internal CRTC processes with respect to access to information requests and the negative public statements he had made about the regulator. Cabinet felt Mr. Shoan’s actions were “fundamentally incompatible with his position,” according to court documents.
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