OTTAWA – A Federal Court judge ruled against former Ontario CRTC commissioner Raj Shoan in dismissing a motion in which Shoan sought a stay in the Governor-in-Council’s June decision to remove him from his position, upon which we have reported extensively.
This decision was released Friday after a court hearing in Ottawa which took place Tuesday, September 6.
Soon after Shoan was informed by Heritage Minister Mélanie Joly that he was having his appointment rescinded, Shoan filed for a judicial review of that decision as well as for an immediate stay of the Order-in-Council so that he could resume his job. He asked for the stay at least until a ruling on a previous judicial review filed against the CRTC was ruled upon. While that ruling was passed down late last week in Shoan’s favour, it didn’t help him with Friday’s ruling against the stay request.
“I have concluded that although Mr. Shoan has established that his application for judicial review raises a serious issue, he has failed to demonstrate with clear and non-speculative evidence that he will suffer irreparable harm between now and the time that his application for judicial review is finally disposed of if the stay is not granted. I am further satisfied that the balance of convenience favours the respondent. Consequently, Mr. Shoan’s motion will be dismissed,” wrote justice Anne Mactavish.
“Shortly before the motion to stay the termination of Mr. Shoan’s appointment was to be heard, Justice Zinn rendered his decision with respect to the judicial review of the findings of the harassment investigation. In a decision that was very critical of the process followed by the investigator, Justice Zinn found that Mr. Shoan had been denied procedural fairness in the investigation process, as the investigator had approached the investigation with a closed mind,” reads the judgement.
Despite that, Justice Mactavish said Shoan’s application did not clear all the legal bars required and she wrote she was not convinced that Shoan would suffer “unavoidable irreparable harm” if he was not reinstated immediately.
“Reinstating Mr. Shoan to his position on an interim basis would undoubtedly have a negative impact on the collegiality required for the effective operation of the CRTC.” – Justice Anne Mactavish, Federal Court
“Ordering that Mr. Shoan be reinstated to his position at the CRTC pending the hearing of his application for judicial review of his termination would do nothing to restore the Governor in Council’s trust in him. The harm to Mr. Shoan’s reputation resulting from the Governor in Council’s loss of confidence in his ability to discharge his responsibilities as a Commissioner of the CRTC would, moreover, not be undone if he is reinstated to his position pending the hearing of his application for judicial review,” reads the decision.
Justice Mactavish also wrote that she does not “accept Mr. Shoan’s assertion that the Minister has never raised any concerns with respect to his ability to do his job. For example, the Minister has alleged that Mr. Shoan held an inappropriate ex parte meeting with stakeholders involved in a proceeding that was pending before the CRTC, which led a party to the proceeding to raise concerns as to a potential apprehension of bias on the part of Mr. Shoan. The same party also requested his recusal from the proceeding. This directly calls Mr. Shoan’s judgment into question, and with it, his ability to do his job,” reads the decision.
“There is, moreover, a strong public interest in preserving integrity of, and public confidence in the CRTC. This would be undermined if Mr. Shoan were reinstated to his position as a CRTC Commissioner prior to the determination of his application for judicial review challenging the termination of his appointment for cause.
“Finally, there is a strong public interest in ensuring the effective functioning and well-being of the CRTC. Without making any finding as to who is at fault, it is clear that the relationship between Mr. Shoan and the CRTC Chairperson and certain other staff members has become very difficult. Reinstating Mr. Shoan to his position on an interim basis would undoubtedly have a negative impact on the collegiality required for the effective operation of the CRTC.
“For the reasons given, Mr. Shoan’s motion to stay the Order in Council terminating his appointment to the CRTC is dismissed.”
