Raj Shoan – a former commissioner of Canada's broadcast and telecom regulator who dragged internal conflict at the commission into public view and was openly critical of its chairman – will get another day in court as he challenges the federal cabinet's decision to fire him.
Acting on the recommendation of Heritage Minister Melanie Joly, the cabinet issued an order in June terminating Mr. Shoan's appointment as regional commissioner for Ontario of the Canadian Radio-television and Telecommunications Commission.
He is seeking a judicial review of that decision and the Federal Court in Toronto will hear his arguments Wednesday in a case that touches upon rarely raised questions of when and how the government can dismiss political appointees. There are about 1,500 such jobs on commissions, Crown corporations, agencies and tribunals across Canada.
Mr. Shoan contends the decision did not meet the "very high threshold of 'cause' for termination." CRTC commissioners are appointed by the cabinet and typically serve five-year terms under the condition of "good behaviour." (In contrast, some political appointments are served at the "pleasure" of the government, giving the cabinet wider discretion to dismiss those appointees.)
He argues in a court filing that "considering the nature of his employment … the threshold for 'cause' must be at least as onerous as it is for private sector employees," and says the government did not meet that standard.
Government lawyers counter that the cabinet's decision was reasonable and the procedure it followed was fair. The government says in its own court filing that Mr. Shoan, among other things, publicly disclosed information meant to be confidential and "waged a campaign of public criticism against the CRTC and its chairperson."
"After carefully considering the Minister's concerns and Shoan's response to them, the [cabinet] determined that Shoan's actions had had a harmful effect on the integrity of the CRTC and had undermined the public's trust in its effective functioning," the government filing states.
Mr. Shoan's case has a complicated back story that initially stemmed from a complaint of workplace harassment filed against him by a senior CRTC employee. A third-party investigator concluded Mr. Shoan did harass the employee through a series of e-mails.
He made the internal complaint public when he filed his first court action in April, 2015, seeking judicial review of CRTC chairman Jean-Pierre Blais's decision to accept the harassment finding.
As that case worked its way through the system, Mr. Shoan launched additional legal proceedings complaining that Mr. Blais was over-stepping his authority. The Federal Court of Appeal dismissed the first of those claims in October and ordered Mr. Shoan to pay $5,000 in costs and he discontinued the second claim in November.
Mr. Shoan's initial case on the harassment investigation made it to court in June, just two days before the federal cabinet issued the order revoking his appointment as commissioner for Ontario.
Federal Court Justice Russel Zinn ruled in September that the finding of harassment should be set aside, stating that there was a denial of procedural fairness and natural justice in the way the harassment investigation was conducted. The judge said the CRTC chairman Mr. Blais played an unfair "dual role" of both witness and decision maker and that the third-party investigator approached the complaint with a "closed mind."
The government has appealed Justice Zinn's ruling as well as an order he made to set aside an earlier confidentiality order in the case.
In the present case, Mr. Shoan points to Justice Zinn's description of the harassment investigation as a "witch hunt" and argues: "The [cabinet's] decision is in essence an extension of, and occurred contemporaneous to, the 'witch hunt' to which Shoan was initially subjected. The information that the [cabinet] relied upon … was by no measure fair and balanced."
But the government argues that the question before cabinet was not restricted to whether Mr. Shoan's actions did in fact amount to harassment and states that the decision also took into account his behaviour outside that investigation. The government says cabinet also considered Mr. Shoan's response to a request under the Access to Information Act as well as his meeting – and a public message he posted on Twitter about the meeting – with a senior official from Shomi, which was a party to an application before the CRTC at the time.
The federal government appointed Mr. Shoan to the CRTC in 2013 and his term was set to expire in 2018.