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Conrad Black Not Entitled to Make Oral Submissions Regarding the Termination of his Appointment to the Order of Canada: Black v The Advisory Council for the Order of Canada

Conrad Black has had a difficult year. The newspaper tycoon and former head of Hollinger International Inc recently finished serving a prison sentence in the United States for convictions of fraud and obstruction of justice. Having renounced Canadian citizenship in order to become a British Lord in 2001, Black returned to Canada this past May on a one-year temporary resident permit.

The most recent defeat is the decision of the Federal Court in Black v The Advisory Council for the Order of Canada, 2012 FC 1234.  Black wished to make oral submissions regarding the possible termination of his appointment to the Order of Canada, by the Advisory Council for the Order of Canada (“Council”) refused. The court declined to interfere. The decision was released on October 23, 2012, just two days before Black was fined $6.1 million for violating US securities law during his tenure at Hollinger International Inc.

Black was appointed as an Officer of the Order of Canada in 1990. In July of 2011 he was informed that the Council was considering terminating his appointment. According to the terms of the Policy and Procedure for Termination of Appointment to the Order of Canada (the “Policy”), the Council shall consider termination in the following circumstances:

    1. the person has been convicted of a criminal offence; or
    2. the conduct of the person
      1. constitutes a significant departure from generally recognized standards of public behaviour which is seen to undermine the credibility, integrity or relevance of the Order, or detracts from the original grounds upon which the appointment was based; or
      2. has been subject to official sanction, such as a fine or a reprimand, by an adjudicating body, professional association or other organization.

Black was convicted of fraud and obstruction of justice in the United States in relation to his conduct at Hollinger International Inc. He claimed to have done nothing wrong, legally or morally.

Whenever the Council considers terminating an appointment, it follows an eleven step process set out in the Policy. The individual is notified that the Council is considering termination and given an opportunity to make representations either in writing or otherwise as the Secretary General may authorize. At the conclusion of the process, the Council prepares a report of findings and recommendations for the Governor General, who makes the ultimate decision as to termination.

The process began on July 20, 2011 when Black was informed the Council was considering terminating his appointment and invited to either resign voluntarily or make written submissions.

Black responded with a request for an oral hearing, which he claimed was necessary based on the nature and complexity of the matters and the importance of credibility. The Advisory Council refused to hold an oral hearing and invited Black to make additional written representations. Black initiated an application for judicial review of the Council’s decision not to hold an oral hearing.

 

The Federal Court Dismissed the Application

While the court accepted Black’s submissions that the application was not premature and the matter was not injusticiable, it found that no principle of fundamental justice had been breached by denying Black an oral hearing. There was no legitimate expectation of an oral hearing under the Policy, and the requirements of procedural fairness in the circumstances were minimal.

 1. The Application is Not Premature

In general, interlocutory decisions of administrative bodies are not reviewable. Absent exceptional circumstances, parties cannot proceed to the courts until the administrative process has run its course.

Black argued that there were exceptional circumstances justifying the court’s early intervention. Firstly, he argued that the decision to deny him an oral hearing was a breach of procedural fairness with an irreversible impact on his rights. Secondly, he argued that he would be left without a remedy should he wait until the Governor General has terminated his appointment.

The court rejected the first argument. It found that an allegation of a breach of procedural fairness was not an exceptional circumstance justifying the court’s early intervention. In support of this position it relied on caselaw that restricted the scope of the recognized exceptions to the rule against judicial review of interlocutory decisions.

The court accepted Black’s second argument. As thee Governor General’s decision to terminate an appointment is a true exercise of prerogative power, Black will be unable to seek judicial review once decision is made.  Similarly, once the decision is made Black could not challenge the Council’s process in formulating its report, because any issues would have been rendered moot by the decision. Thus, Black could be left without a remedy.

The circumstances presented here justified an exception to the rule against judicial review of interlocutory decisions.

 

2. The Decision of the Council to Deny Black an Oral Hearing is Susceptible to Judicial Review

The decision to confer or withdraw an appointment in the Order of Canada is an exercise of Crown prerogative over honours.

The test for the justiciability of the exercise of prerogative powers is Black v Canada (Prime Minister) [2001] OJ no 1853 – another case involving Conrad Black. The Ontario Court of Appeal in that case provided  that the exercise of a prerogative power may be found to be justiciable where it:

    1. Alters the individual’s legal rights; or
    2. Affects the individual’s legitimate expectations

Furthermore, the case stands for the proposition that no Canadian citizen has a right to an honour. The Federal Court extended that finding and held that that no person has a right to keep an honour once it has been conferred. Accordingly, the decision to terminate an appointment wass not justiciable on the basis that it altered an individual’s legal rights.

The Federal Court held that the decision to terminate Black’s appointment was justiciable on the grounds that it affected his legitimate expectations. These expectations were set by the publicly available Policy, which established the procedure for terminating an appointment. Black had a legitimate expectation that the Council will follow the prescribed procedure prior to submitting a recommendation for the exercise by the Governor General of the royal prerogative.

Although the decision about terminating an appointment to the Order of Canada is not justiciable, the process adopted by the Council in making its recommendation to the Governor General on termination was justiciable. Next, the Court reviewed the Council’s recommendation process to ensure it has followed the procedure set out in the Policy. This is so despite the fact that Black has no right or legitimate expectation, in a substantive sense, of keeping the Order of Canada.

 

3. The Council did not Breach a Principle of Procedural Fairness

Having found that the Council’s recommendation process was reviewable, the court held that there had been no breach of procedural fairness. In doing so it rejected Black’s argument that the principles of natural justice required an oral hearing in the circumstances.

Firstly, there is nothing in the Policy to ground a legitimate expectation to an oral hearing. The Policy provides an opportunity to make written representations, and permits the Secretary General to authorize an oral hearing if he sees fit. There is no duty to provide an oral hearing, and no criteria to constrain the decision as to whether or not to grant one.

Secondly, by applying the Baker factors an oral hearing is not necessary to provide a reasonable opportunity for Black to effectively make his case. Based on the Baker analysis, the required standard procedural fairness in the circumstances is minimal and does not include the right to an oral hearing.

Finally, Black had argued throughout that an oral hearing was required because credibility was at issue. The court rejected this argument, noting that the Council is not called upon to reconsider the merits of his American convictions. The court found that Black’s case could be adequately made through written submissions.

 

[filed: List of cases]

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