By Ahmad Hathout
A former CRTC commissioner will go to court on Monday armed with new evidence he says will show why the Federal Court got it wrong when it dismissed his case for judicial review of his second termination from the regulator.
Former commissioner of Ontario Balraj Shoan (above) was twice fired by then-Heritage Minister Melanie Joly in 2016 and 2017 for allegations of workplace harassment, engaging in inappropriate stakeholder contact, speaking negatively of the regulator in public, and refusing to respect appropriate access to information policy.
Shoan, who was appointed by Heritage to the CRTC in 2013, challenged the first dismissal in court and succeeded on the basis that the investigation wasn’t done fairly and was reinstated at the regulator, only to be fired again about a week later by the minister. In May 2018, the Federal Court denied his appeal of the second termination.
On Monday, Shoan will have an opportunity to challenge that denial in court, and he hopes to be allowed to present new pieces of evidence that he says will throw into doubt the correctness of the court’s decision. The evidence motion will be heard before the roughly three-hour hearing gets underway virtually.
The first piece of new evidence is a previously-redacted revelation by the information commissioner about the scope of an investigation by the Office of the Privacy Commissioner (OIC) looking into the conduct of the CRTC’s handling of the personal information of the accuser in the harassment case against Shoan. Previously, according to Shoan, the court was told by government counsel the OPC’s report pertained to the conduct not of the CRTC, but of Shoan’s handling of personal information, which was disclosed in court records after the regulator allegedly provided it to him.
“Our argument is that the OPC Report was issued in January 2017 – and the government continued to inaccurately link my conduct to the privacy act investigation through two votes in Cabinet for my termination and two judicial reviews in the Federal Court,” Shoan told Cartt.ca this week.
“It calls into question the veracity of the record and whether they actually investigated the information placed before them,” he added.
The second piece of evidence relates to how the Federal Court comparatively treated a judicial review application by the Independent Community Television Montreal (ICTV) against a decision by the CRTC to grant Rogers the sole national licence to air its OMNI multi-ethic channel on basic TV.
The ICTV alleged that the CRTC held inappropriate stakeholder meetings with Rogers following the regulator’s notice of consultation that would form the basis for its licence hearing. Shoan argues that the stakeholder meetings he held pale in comparison to the ones the CRTC held, which he said should’ve led to a judgment of bias against the CRTC — yet the court ruled against ICTV.
“The conduct of the Commissioners in question was objectively far more egregious than my supposedly inappropriate conduct and, yet, the Federal Court of Appeal refused to grant leave to appeal based on a reasonable apprehension of bias,” Shoan told Cartt.ca
Shoan’s case stems from a 2014 complaint by a now former executive director of the CRTC, who alleged Shoan harassed her by threatening to undermine her position to her bosses and ultimately destroy her career. Following an investigation, CRTC chair Jean-Pierre Blais instituted five measures to limit Shoan’s contact and interactions with the complainant and her staff. The legal saga flowed from there.
He also sued the federal government and others for $8.4 million in 2018 but that case is on hold pending this appeal.
Update October 19: The Federal Court of Appeal on Monday morning dismissed Shoan’s application.
“A number of the appellant’s (Shoan’s) procedural fairness concerns were not raised with the Governor-in-Council and thus cannot raise them on judicial review,” Justice David Stratas read Monday morning. “Even assuming a high level of procedural fairness was owed… there was no violation of procedural fairness in this case.”
Shoan also hoped to raise the issue of racial bias against the government — being one of the very few people of colour to hold a commissionership at the regulator — but the court said it could not look at new issues presented to it, as Shoan didn’t raise the issue of racial bias in the lower court.
Asked if he’d consider appealing to the Supreme Court of Canada, Shoan told Cartt.ca Monday, “We’ll need to review the reasons in writing, obviously. But we’re certainly considering it.”
