A former commissioner for Canada’s broadcast and telecommunications regulator has won a legal round in his challenge to the federal cabinet decision to fire him last summer.
Federal Court Justice Cecily Y. Strickland granted an application for judicial review by Raj Shoan, who was dismissed 10 months ago as Ontario commissioner of the Canadian Radio-television and Telecommunications Commission.
In a judgment dated April 28, Justice Strickland ruled Heritage Minister Mélanie Joly’s office did not meet its obligation to give him a fair hearing.
In a statement to The Globe and Mail on Saturday, Mr. Shoan claimed victory.
The judgment, he said, has “returned me to my position of CRTC commissioner, Ontario. I am grateful for the considered decision of the Federal Court and I look forward to continuing to support the important work of the CRTC.”
Rachel Rappaport, a spokesperson for Ms. Joly, said in an e-mailed statement: “The minister has no comment at this time. The decision is being studied.”
A CRTC official referred all questions to the Canadian Heritage department.
The case involving Mr. Shoan represents a rare instance of a government dismissing a political appointee; the cabinet has the authority to fill 1,500 or so posts in the various Crown corporations, agencies and regulatory bodies.
Unlike some appointees, who serve at the pleasure of the governor-in-council of the day, CRTC commissioners’ terms are subject to a standard of “good behaviour” and may only be terminated with cause.
In March of 2016, Ms. Joly’s office sent a letter to Mr. Shoan alleging a series of improprieties – criticizing the CRTC on social media, releasing private information regarding a complainant in a harassment case, having inappropriate contact with companies with applications before the board, and making unfounded assertions of unethical conduct on the part of other CRTC members.
In her ruling, Justice Strickland examined four previous dismissals and found that while Ms. Joly’s letter met the standard of procedural fairness in allowing Mr. Shoan to respond in writing, and that she had no obligation to refer the matter to an inquiry, she should have allowed him to respond in a face-to-face meeting.
“The failure to provide the applicant with such a meeting or to otherwise respond to the issues raised in his response led to a potential breach in procedural fairness as it cannot be determined, from the record, if he received a fair and impartial decision,” the ruling reads.
The government also erred in dismissing Mr. Shoan before his challenge of a harassment complaint against him could be heard in court.
In the event, a third-party report finding fault with Mr. Shoan’s conduct was tossed out by a judge.
“Because it cannot be determined from the record or the GIC’s reasons how much reliance was placed on the harassment report and related concerns, I cannot determine whether the GIC’s decision was reasonable,” Justice Strickland wrote.
At the same time, she called Mr. Shoan’s conduct in meeting various firms that had applications before the CRTC, in the face of internal legal guidelines, “very troubling.”
She also referenced “a lack of sound judgment” on his part.
“Given its broad discretion, the GIC could reasonably find that the applicant’s lack of recognition and/or disregard of concern about ex parte communications, and the impact on the integrity of the CRTC, was a basis for dismissal with cause,” she wrote.
Mr. Shoan, a Toronto-area broadcast industry veteran, was appointed to a five-year term on the CRTC in 2013. His relationship with the communications regulator and its chair, Jean-Pierre Blais, eventually became fractious; Mr. Shoan has been embroiled in various legal actions against the body since April of 2015.
The first involved harassment allegations by a long-time CRTC employee. While a third-party investigation concluded harassment had occurred, Mr. Shoan challenged that finding. In September, 2016, a few months after Mr. Shoan was fired, Federal Court Justice Russel found the investigators had a “closed mind” and suggested their work had taken on the appearance of a “witch hunt.”
Mr. Shoan asked to be reinstated immediately following the ruling, but the Federal Court declined his application.
In October, the tribunal heard another legal dispute centred on CRTC chair Jean-Pierre Blais’s administrative authority.
A judge ruled against Mr. Shoan in that case. By then, he was already out of a job (the salary range for which is $142,000-$168,000).
Four months earlier, on June 23, the federal cabinet issued a decision firing him from his post; it was two days after the harassment case opened in Federal Court.
In her reasons for judgment, Justice Strickland said “the quashing of the [governor-in-council]’s decision to remove the applicant for cause would presumably result in the applicant resuming his appointment” but added “there is a legitimate concern that the applicant’s disregard of processes intended to protect the integrity of the CRTC displays a lack of sound judgment. It is also apparent that the relationship between the applicant and the chairperson is fraught.”
Mr. Shoan, for his part, plans to step back into his former job, which is listed as vacant on the CRTC website.
“As I return now to the CRTC, I do so with a renewed sense of optimism that justice can prevail and a determination to represent the province of Ontario with passion and integrity,” his statement said.Report Typo/Error