Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) [1997] 3 S.C.R. 440: Whether Commission had jurisdiction to make findings of misconduct

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Administrative law -- Judicial review -- Public inquiry -- Jurisdiction -- Notices of possible findings of misconduct -- Whether Commission had jurisdiction to make findings of misconduct -- Inquiries Act, R.S.C., 1985, c. I-11, ss. 2, 6, 12, 13.

Public inquiries -- Jurisdiction -- Notices of potential findings of misconduct -- Whether notices unfair.

The Commission of Inquiry appointed to examine the blood system after thousands contracted HIV and Hepatitis C from blood and blood products held exhaustive hearings governed by rules of procedure agreed to by all parties. Twenty-five interested parties were granted standing. The Baxter Corporation did not seek standing but subsequently participated in the proceedings by supplying relevant documents and providing witnesses. The Commission, on the final day of scheduled hearings, sent out confidential notices that the Commission might reach certain conclusions based on the evidence before it, that these conclusions might amount to misconduct with the meaning of s. 13 of the Inquiries Act (setting out jurisdiction to make findings of misconduct), and that the recipients had the right to respond as to whether the Commissioner ought to reach these conclusions. A number of the recipients of notices brought applications for judicial review in the Federal Court, Trial Division. That court declared that no findings of misconduct could be made against 47 of the applicants for judicial review, but otherwise dismissed the applications. Many recipients whose notices were not quashed appealed. The Federal Court of Appeal quashed one notice but dismissed the remaining appeals. At issue here are: (1) whether the Commissioner exceeded his jurisdiction by the nature and extent of the allegations of misconduct set out in the notices; (2) if the Commissioner originally had such jurisdiction, did he lose it by failing to provide adequate procedural protections or by the timing of the release of the notices; (3) whether Commission counsel should be prohibited from taking part in the drafting of the final report because of their receipt of confidential information not disclosed to the Commissioner or the other parties; and, (4) whether the appellant Baxter Corporation should be treated differently from the other appellants.

Held: The appeal should be dismissed.

Several basic principles are applicable to inquiries. A commission of inquiry is not a court or tribunal and has no authority to determine legal liability; it does not necessarily follow the same laws of evidence or procedure that a court or tribunal would observe. A commissioner accordingly should endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability for the public perception may be that specific findings of criminal or civil liability have been made. A commissioner has the power to make all relevant findings of fact necessary to explain or support the recommendations, even if these findings reflect adversely upon individuals. Further, a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference. In addition, a commissioner may make a finding that there has been a failure to comply with a certain standard of conduct, so long as it is clear that the standard is not a legally binding one such that the finding amounts to a conclusion of law pertaining to criminal or civil liability. Finally, a commissioner must ensure that there is procedural fairness in the conduct of the inquiry.

Notices warning of potential findings of misconduct, if issued in confidence to the recipient, should not be subject to as strict scrutiny as the formal findings because their purpose is to allow parties to prepare for or respond to any possible findings of misconduct. The more detail included in the notice, the greater the assistance to the party. The only possible harm would be to a party's reputation and this could not be an issue if the notices are released only to the party against whom the finding may be made. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, it must be assumed that commissioners will not exceed their jurisdiction. The final report may demonstrate the assumption to be erroneous.

The Commissioner here stated that he would not be making findings of civil or criminal responsibility and, in the interests of fairness to the parties and witnesses, must be bound by these statements. It was not necessary, therefore, to deal with the ultimate scope of the findings that a commissioner might make in a report.

The Commissioner did not exceed his jurisdiction in the notices delivered to the appellants. The inquiry's mandate was extremely broad and the potential findings of misconduct covered areas that were within the Commissioner's mandate to investigate. The appellants' challenge was launched prematurely. As a general rule, such a challenge should not be brought before the publication of the report unless there are reasonable grounds to believe that the Commissioner is likely to exceed his or her jurisdiction. Further consideration of this issue might have been warranted if the Commissioner's report had made findings worded in the same manner as the notices. Even if the challenges were not premature, the notices would not be objectionable. While many of the notices come close to alleging all the necessary elements of civil liability, none appeared to exceed the Commissioner's jurisdiction. The use of the words «failure» and «responsible» in the notices does not mean, absent something more indicating legal responsibility, that the person breached a criminal or civil standard of conduct. The use of these words was not objectionable.

The procedural protections offered to parties to the Inquiry and to individual witnesses were extensive and eminently fair. The appellants could not have been misled or suffered prejudice as a result of any «misunderstanding» about the type of findings which would be made by the Commissioner.

Although the notices of potential findings of misconduct should be given as soon as it is feasible, it is unreasonable to insist that the notice of misconduct must always be given early. So long as adequate time is given to the recipients of the notices to allow them to call the evidence and make the submissions they deem necessary, the late delivery of notices will not constitute unfair procedure. The timing of notices will always depend upon the circumstances. Here, it was within the discretion of the Commissioner to issue notices when he did because, given the enormous amount of information gathered and the nature and purposes of this Inquiry, it was impossible to give adequate detail in the notices before all the evidence had been heard. The appellants were given an adequate opportunity to respond to the notices, and to adduce additional evidence, if they deemed it necessary.

It was premature to forbid Commission counsel from taking part in the drafting of the report. The Commissioner did not indicate that he intended to rely upon his counsel to draft the final report. In addition, it is not clear from the record what was contained in the confidential submissions reviewed by counsel.

Baxter Corporation should not be treated any differently than the other appellants. Although it must have realized that its conduct would be under scrutiny in the proceedings it took a calculated risk and elected not to seek standing before the Commission. It should not now be allowed to escape the consequences of that decision.

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