Judgments

[2001] 1 F.C. 30

A-346-98

T-1645-97

The Attorney General of Canada (Appellant)

v.

Lieutenant-Colonel Paul R. Morneault (Respondent)

Indexed as: Morneault v. Canada (Attorney General) (C.A.)

Court of Appeal, Stone, Strayer and Robertson JJ.A. —Ottawa, March 21 and May 24, 2000.

Administrative law — Judicial review — Declarations — Appeal from Trial Division decision granting application for judicial review of findings made in report of Commission of Inquiry into deployment of Canadian Forces to Somalia — Motions Judge declaring general statements as to credibility of witnesses, condemning personnel whose conduct attacked, not applicable to respondent; findings of misconduct by respondent invalid — Declaratory relief available notwithstanding characterization of report of Commission of Inquiry as having “no legal consequences” — Because reputation at stake, procedural fairness must be accorded — Federal Court Rules, 1998 providing for granting of declaratory relief, whether or not consequential relief can be claimed — While declaration would not affect legal right, would remove any possible harm to respondent’s reputation — Declaration general statements not applicable to respondent upheld — Motions Judge applied standard of patent unreasonableness, requiring any evidence in support of decision — Preferable to review findings of Commission of Inquiry on standard of whether supported by some evidence — Record disclosing some evidence to support findings Motions Judge found unsupported.

Federal Court Jurisdiction — Trial Division — Motions Judge holding within Court’s jurisdiction to review findings of Commission of Inquiry into deployment of Canadian Forces to Somalia because “decisions” within Federal Court Act, s. 18.1(4)(d) — Noting similarity between procedure adopted by Commission and that applicable in court of law supported argument findings “decisions” — Similarities in procedure not affording reliable basis for concluding findings “decisions” reviewable under s. 18.1(4)(d) — But judicial review under s. 18.1 not limited to “decision or order” — S. 18.1(1) enabling anyone “directly affected” by matter to seek judicial review — Matter other than decision may be reviewed — Respondent’s reputation “directly affected” by findings — Court must be in position to determine whether supported by evidence — Commission within s. 2(1) definition of “federal board, commission or other tribunal” — Derived mandate from order in council, and investigatory powers, power to make findings of misconduct from Inquiries Act — If findings reviewable under s. 18.1, relief available under s. 18.1(3) provided ground for granting relief established under s. 18.1(4) — Unsupported finding made in exercise of Crown’s statutory powers within scope of s. 18.1(4)(b) (failure to observe principle of natural justice, procedural fairness) — Case law not confining application of those principles to cases ending with decision, order — Natural justice denied if findings not supported by some evidence.

Inquiries — Inquiries Act, s. 13 requiring reasonable notice be given of misconduct alleged against individual, and that individual be allowed full opportunity to be heard in person or by counsel — Respondent served with s. 13 notice — Amplified by letter advising Final Report would consider allegations exercised poor, inappropriate leadership in pre-deployment phase of deployment of Canadian Airborne Unit to Somalia — Further details later provided — Motions Judge holding general statement in Report as to credibility of witnesses should have been subject of s. 13 notice, but statements not applicable to respondent; reasonable notice of matters cited as grounds for findings of misconduct not given — Statement as to credibility of witnesses clearly not including respondent — But adverse findings of credibility not requiring s. 13 notice — Inquiry process in general not requiring giving of prior notice party’s credibility may be made subject of adverse finding — Such finding could only be made after witness testified, testimony evaluated in light of other evidence — On its face, general statement of condemnation applicable to all military officers whose conduct addressed, including respondent — Direct link between statement, findings of misconduct — Respondent given reasonable notice of findings of misconduct — Findings within scope of Commission’s mandate — Respondent present in person or by counsel throughout evidentiary hearings, received summary in advance of what other witnesses had to say, had access to all of documentary evidence — Had right to examine, cross-examine witnesses, apply to call witnesses of own, prepared by Commission counsel, presented oral, written submissions — Together with s. 13 notice, respondent made aware of case against him.

Armed Forces — Appeal from Trial Division order declaring general statements in report of Commission of Inquiry into deployment of Canadian Forces to Somalia as to credibility of witnesses, condemning personnel whose conduct attacked, not applicable to respondent; findings of misconduct by respondent invalid — Commission giving reasonable notice under Inquiries Act, s. 13 of matters cited as grounds for findings of misconduct — Findings of misconduct reviewable under Federal Court Act, s. 18.1(4)(d) — Findings of fact in respect of conduct supported by some evidence.

This was an appeal from an order of the Trial Division granting the respondent’s application for judicial review of findings made in the report of a Commission of Inquiry into the deployment of Canadian Forces to Somalia. The inquiry was carried out pursuant to the provisions of the Inquiries Act. The respondent was in command of the Canadian Airborne Regiment in 1992 when it was selected for deployment to Somalia. He was served with a notice under Inquiries Act, section 13 informing him that he was entitled to be heard in relation to charges or allegations concerning the pre-deployment phase that could lead to an adverse finding that could reasonably be expected to bring discredit upon him. Inquiries Act, section 13 requires that reasonable notice be given to the individual concerned of a charge of misconduct alleged against him and that the person be given full opportunity to be heard in person or by counsel. The respondent was interviewed by Commission counsel for a full day. He testified before the Inquiry from January 22 to 25, 1996. In January 1997 he was notified by letter that the Commissioners in their Final Report would consider allegations that he had exercised poor and inappropriate leadership in the pre-deployment phase of the Somalia mission by failing to adequately organize, direct and supervise the training preparations of the Regiment and in his duty as a Commanding Officer as defined in the Queen’s Regulations and Orders and in military custom. In response to a request for further particulars, the Commission provided greater detail. The respondent filed lengthy written submissions and presented oral submissions before the Inquiry with respect to the alleged misconduct. The respondent’s motion focussed on general statements made by the Commission lamenting the credibility of witnesses and condemning the officers whose conduct was attacked, as well as on specific findings of misconduct made against him. While the Motions Judge agreed that the general statements should have been made the subject of a section 13 notice, she declared that the statements did not apply to the respondent. The Motions Judge held that she had jurisdiction to review the specific findings of misconduct because they were “decisions” within the meaning of Federal Court Act, paragraph 18.1(4)(d). That paragraph permits the Trial Division to grant relief under subsection 18(3) if it is satisfied that the federal board, commission or other tribunal based its decision on an erroneous finding of fact. She noted that the procedure adopted by the Commission in investigating the alleged misconduct was similar to that which applies in a court of law, and that this supported an argument that the findings were “decisions” reviewable under paragraph 18.1(4)(d). She found that reasonable notice had not been given of the misconduct alleged and that the findings were not supported by the record and that the decision was patently unreasonable.

The issues were whether the Motions Judge erred in determining that (1) the Commission did not give reasonable notice of matters that were eventually cited by the Commission as grounds for findings of misconduct; (2) the findings of misconduct constituted reviewable “decisions” under Federal Court Act, paragraph 18.1(4)(d); and (3) findings of fact made by the Commission in respect of the respondent’s conduct were not supported by the evidence and therefore were patently unreasonable.

Held, the appeal should be allowed in part, except that the declarations that the general statements did not apply to the respondent were upheld.

(1) The language of the general statement as to the credibility of witnesses clearly indicated that it was not aimed at all senior officers so as to unmistakably include the respondent. Even if the statement did apply to the respondent, its presence did not deprive the respondent of procedural fairness because there did not appear to be a link between it and the findings of misconduct. The adverse findings of credibility did not require a section 13 notice. The inquiry process did not in general appear to require the giving of prior notice that a party’s credibility may be made the subject of an adverse finding. Such a finding could be made only after the witness had testified, and perhaps not until such testimony could be evaluated in the light of other evidence. A requirement that there be prior notice could well impose on a commission of inquiry an unduly onerous standard of procedural fairness.

The statement of general condemnation appeared on its face to apply to all of the military officers whose conduct was addressed, including the respondent. And there was a direct link between that statement and the findings of misconduct as the statement was expressly tied to the “individuals that follow”. The Motions Judge found that the statement did not apply to the respondent. The declaratory order was upheld in this respect, so as to remove any possible question that this critical statement which, on its face, applied to respondent was not intended to apply to him. Declaratory relief was available, notwithstanding the characterization of a commission of inquiry’s report as having “no legal consequences”. Procedural fairness had to be accorded because the respondent’s reputation was at stake. Also, Federal Court Rules, 1998 provides for the granting of declaratory relief, whether or not any consequential relief can be claimed. While a declaration would not affect a legal right, it would remove any possible harm that may have been caused to the respondent’s reputation by the critical statement.

The respondent had been given reasonable notice of the specific findings of misconduct. The findings were well within the scope of the notice and of the Commission’s mandate. The respondent was present in person or by counsel throughout all of the evidentiary hearings into the pre-deployment phase, was provided in advance with a summary of what other witnesses intended to say, had access to all of the documentary evidence, had the right to examine and cross-examine witnesses and to apply to call witnesses of his own, was prepared by Commission counsel prior to testifying, was given the opportunity to, and did present oral submissions and written submissions before the findings in issue were made. Together with the section 13 notice, these factors made the respondent aware of the substance of the case against him.

(2) It was not clear that similarities in procedure by itself afforded a reliable basis for concluding that the findings were “decisions” reviewable under paragraph 18.1(4)(d). But even if relief was not available under that paragraph, the findings were reviewable under section 18.1. Judicial review thereunder is not limited to a “decision or order”. Subsection 18.1(1) enables the Attorney General of Canada and “anyone directly affected by the matter” to seek judicial review. It is plain from the section as a whole that, while a decision or order is a “matter” that may be reviewed, a “matter” other than a decision or order may also be reviewed. The respondent is directly affected by the findings and they are amenable to review under section 18.1. The findings were exceptionally important to the respondent because of the impact on his reputation. The Court must be in a position to determine whether or not the findings are supported by the evidence.

To be reviewable under section 18.1, a “matter” must emanate from “a federal board, commission or other tribunal”. The Commission falls within the definition of “a federal board, commission or other tribunal” in Federal Court Act, subsection 2(1), for it derived its mandate from an order in council, and its detailed investigatory powers and power to make findings of misconduct from the Inquiries Act. If the findings are reviewable under section 18.1, relief may be made available under subsection 18.1(3), provided a ground for granting relief is established under subsection 18.1(4). If the findings are not “decisions or orders” no ground for review is available under paragraph 18.1(4)(d) or (c). An unsupported finding of misconduct made in exercise of the Commission’s statutory powers falls within the scope of paragraph 18.1(4)(b), which permits the Trial Division to grant relief where the federal board, commission or other tribunal failed to observe a principle of natural justice or procedural fairness. While natural justice and procedural fairness are usually associated with the quality of a hearing that ends with a decision or order, it has not been so confined by the case law. Thus, natural justice will be denied if the findings of the tribunal, including those of a commission of inquiry are not supported by some evidence. If the findings are supported by some evidence, the respondent could not complain that the findings may have harmed his reputation. If there was no evidence to support the findings, the potential harm to the respondent’s reputation would be significant. The respondent could not go back to the Commission to have the error corrected because its mandate has been exhausted. Nor could he appeal an erroneous finding to a court of law. Unless the findings are reviewable under section 18.1, any error that may have been committed could never be corrected and harm that may have been done could never be undone.

(3) A decision is not patently unreasonable if there is any evidence capable of supporting it. The Motions Judge examined the findings on a standard of patent unreasonableness. Given that the findings are those of a commission of inquiry, it would be preferable to review them on a standard of whether they are supported by some evidence in the record of the inquiry. The Inquiry’s record did disclose some evidence to support each of the findings which the Motions Judge found to be unsupported. Even if the evidence may not appear to be wholly consistent, it was for the Commission to weigh and assess the evidence of the various witnesses in coming to its findings of fact. A reviewing Court should not assume the role of the Commissioners by reweighing and reassessing the evidence in dispute.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal” (as am. by S.C. 1990, c. 8, s. 1), 18.1 (as enacted idem, s. 5), 28.

Federal Court Rules, 1998, SOR/98-106, r. 64.

Inquiries Act, R.S.C., 1985, c. I-11, s. 13.

Public Service Employment Act, R.S.C. 1970, c. P-32, s. 21(b).

Queen’s Regulations and Orders for the Canadian Forces (1994 Revision), art. 4.20.

CASES JUDICIALLY CONSIDERED

APPLIED:

Merricks v. Nott-Bower, [1964] 1 All E.R. 717 (C.A.); Mahon v. Air New Zealand Ltd., [1984] 1 A.C. 808 (P.C.); United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81; Krause v. Canada, [1999] 2 F.C. 476 (1999), 19 C.C.P.B. 179; 236 N.R. 317 (C.A.).

CONSIDERED:

Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; (1997), 151 D.L.R. (4th) 1; 48 Admin. L.R. (2d) 1; 216 N.R. 321; Nenn v. The Queen, [1981] 1 S.C.R. 631; (1981), 122 D.L.R. (3d) 577; 36 N.R. 487.

REFERRED TO:

Landreville v. The Queen, [1973] F.C. 1223; (1973), 41 D.L.R. (3d) 574 (T.D.); Peters v Davison, [1999] 2 NZLR 164 (C.A.); Canadian Fishing Company Limited et al. v. Smith et al., [1962] S.C.R. 294; (1962), 32 D.L.R. (2d) 641; 37 W.W.R. 625; 39 C.P.R. 1; Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624 (1999), 177 D.L.R. (4th) 192; 246 N.R. 287 (C.A.); Sweet v. Canada (1999), 249 N.R. 17 (F.C.A.); Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (1999), 181 D.L.R. (4th) 441; 3 Imm. L.R. (3d) 1; 250 N.R. 326 (C.A.); Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (1995), 129 D.L.R. (4th) 226; 32 C.R.R. (2d) 295; 103 F.T.R. 105; 31 Imm. L.R. (2d) 191 (T.D.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 3 F.C. 259 (1996), 136 D.L.R. (4th) 449; 37 Admin. L.R. (2d) 260; 115 F.T.R. 81 (T.D.); Ontario Public Service Employees’ Union et al. and The Queen in right of Ontario, Re (1984), 45 O.R. (2d) 70; 5 D.L.R. (4th) 651; 2 O.A.C. 351 (Div. Ct.); Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 1585, [1996] O.J. n^o 3039 (Div. Ct.) (QL).

AUTHORS CITED

Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback, 1998.

Commission of Inquiry into the Deployment of Canadian Forces to Somalia. Dishonoured Legacy: The Lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia. Ottawa: Minister of Public Works and Government Services Canada, 1997.

Wade, Sir William and C. Forsyth. Administrative Law, 7th ed. Oxford: Clarendon Press, 1994.

APPEAL from the Trial Division decision granting the respondent’s application for judicial review of findings made in the report of a Commission of Inquiry into the deployment of Canadian Forces to Somalia (Morneault v. Canada (Attorney General) (1998), 10 Admin. L.R. (3d) 251; 150 F.T.R. 28 (F.C.T.D.)). Appeal allowed in part.

APPEARANCES:

Ivan Whitehall, Q.C., Lynn Watt, and Catherine J. Moore for appellant.

Ronald D. Lunau and Maryrose Ebos for respondent.

SOLICITORS OF RECORD:

Deputy Attorney General of Canada for appellant.

Gowling, Strathy & Henderson, Ottawa, for respondent.

The following are the reasons for judgment rendered in English by

[1]        Stone J.A.: This is an appeal from an order of the Trial Division of April 27, 1998, granting the respondent’s application for judicial review of findings made in the report of a Commission of Inquiry (the Commission) dated June 30, 1997 (the Report) into the deployment in 1992 of Canadian Forces to Somalia [Dishonoured Legacy: The Lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia]. The Inquiry was carried out pursuant to the provisions of the Inquiries Act, R.S.C., 1985, c. I-11. The purpose of the application, brought pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], was to quash various findings made in the Report. By the order in issue, the Motions Judge declared certain of the findings in the Report not to be applicable to the respondent and declared other findings to be invalid.

[2]        As the background of the dispute is fully set forth in the judgment of the learned Motions Judge,[1] it will not be necessary to cover the same ground in detail. In approaching the issues in this appeal it is well to recall the counsel of Cory J. in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440 (hereinafter Krever), with respect to the distinctive nature of a commission of inquiry. At paragraph 34 [page 460], Cory J. stated:

A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter.

BACKGROUND

[3]        The Commission was appointed by Order in Council [P.C. 1995-442] dated March 20, 1995 “under Part 1 of the Inquiries Act” with the mandate of inquiring into and reporting,

… on the chain of command system, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces and actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia.

In carrying out this mandate the Commission was required by the terms of appointment to have particular regard to several enumerated concerns related to the pre-deployment, in-theatre and post-deployment phases of the Somalia deployment. Those respecting the pre-deployment phase were:

Pre-Deployment (prior to 10 January 1993)

(a)  the suitability of the Canadian Airborne Regiment for service in Somalia;

(b)  the mission and tasks assigned to the Canadian Airborne Regiment Battle Group (CARBG) and the suitability of its composition and organization for the mission and tasks assigned;

(c)  the operational readiness of the CARBG, prior to deployment, for its mission and tasks;

(d)  the adequacy of selection and screening of officers and non-commissioned members of the Somalia deployment;

(e)  the appropriateness of the training objectives and standards used to prepare for deployment of the Airborne Regiment;

(f)   the state of discipline within the Canadian Airborne Regiment prior to the establishment of the CARBG and within the CARBG prior to deployment;

(g)  the effectiveness of the decisions and actions taken during the training period prior to deployment by leadership at all levels of the Airborne Regiment to prepare for its mission and tasks in Somalia;

(h)  the effectiveness of the decisions and actions taken by leadership at all levels within Land Forces Command to resolve the operational, disciplinary and administrative problems that developed in the Canadian Airborne Regiment and the CARBG in the period leading up to the CARBG deployment to Somalia;

(i)   the effectiveness of the decisions and actions taken by Canadian Forces leadership at all levels to ensure that the CARBG was operationally ready, trained, manned and equipped for its mission and tasks in Somalia;

[4]        In 1992, at the time the Canadian Airborne Regiment (the regiment) was selected for deployment to Somalia, it was under the command of the respondent who had been appointed to the position on June 24, 1992. In addition to a headquarters and services unit, the regiment comprised “three company sized units: 1 Commando, 2 Commando and 3 Commando” which were under the command of Majors Pommet, Seward and Magee, respectively. On September 5, 1992, the regiment was given formal notice (a Warning Order) that it had been assigned to Somalia on a peacekeeping mission (code named Operation Cordon) under Chapter VI of the Charter of the United Nations [[1945] Can. T.S. No. 7]. The nature of the mission changed on December 2, 1992, when it became a peace enforcement mission under Chapter VII of the Charter of the United Nations. The respondent had continued to serve as Commanding Officer until October 21, 1992, when he was removed. His hope was that the Inquiry would investigate the circumstances which led to his removal.

[5]        On September 15, 1995 the respondent applied for full standing as a party before the Commission, and by order of September 20, 1995 his application was granted. On September 22, 1995, he was served in confidence with a notice under section 13 of the Inquiries Act. The notice reads in part:

TAKE NOTICE that pursuant to powers vested in them under section 13 of the Inquiries Act, R.S.C. 1985, c. I-11, the Commissioners will hear and consider submissions that you or your counsel may wish to make in relation to charges of misconduct or allegations that may lead to an adverse finding that could reasonably be expected to bring discredit upon you, or that may be made against you during the pre-deployment phase of the Commission’s evidentiary hearings.

At the evidentiary hearings, in relation to the shortcomings or failures in the fulfilment of your military duties, your actions, or the role played by you, Commissioners’ counsel may investigate charges of misconduct or allegations that may lead to an adverse finding that could reasonably be expected to bring discredit upon you, as regards:

(a)  whether the Canadian Airborne Regiment was suitable for the Somalia mission;

(b)  whether the Canadian Airborne Regiment Battle Group (CARBG) was properly constituted in terms of its organization and composition, and operationally ready for deployment in Somalia;

(c)  the effectiveness of your decisions within the chain of command with respect to the pre-deployment phase of the Somalia mission, the selection and screening of officers and non-commissioned members and the operational readiness of CARBG, as well as your leadership;

(d)  preparing and declaring the Battle Group ready or approving a decision to that effect, especially in light of the composition of CARBG, the state of discipline in CARBG, the lack of previous command experience of many of the officers, the high turnover in officers and non-commissioned members in 2 Commando, the late replacement of the Commanding Officer of CAR, the change in the structure of CAR, the late change in the nature of the mission and the training received; or

(e)  addressing the administrative, operational and disciplinary problems encountered in the pre-deployment phase.

[6]        By this notice the respondent was informed that he was entitled to be heard in relation “to the above-noted charges or allegations” either in person or by counsel or by means of written submissions. By his counsel’s letter to the Commission of October 3, 1995, the respondent indicated his wish to be heard in person and by counsel. In the same letter he requested “that you provide us with further information concerning the specific charges of misconduct or allegations that may be made against our client, and which form the basis of the section 13 notice” and, also, that the respondent be provided “with any witness statements in which allegations that may lead to an adverse finding against our client have been made.”

[7]        On October 2, 1995, shortly after the evidentiary hearings into the pre-deployment phase of the Inquiry commenced, the respondent was informed that he would be called as a witness. On October 9, 1995, he was interviewed by Commission counsel for a full day, at which time he suggested names of a number of possible witnesses and provided documentation from his own personal files. The respondent testified before the Inquiry from January 22 to 25, 1996.

[8]        By letter of January 31, 1997, Commission counsel notified the respondent as follows:

The Commissioners have instructed me to advise you that, pursuant to the section 13 Notice already delivered to you and based upon the evidence adduced before the Inquiry, the Commissioners will, in their Final Report, consider allegations that you exercised poor and inappropriate leadership in the pre-deployment phase of the Somalia mission by failing:

(i)   in advising Brigadier-General Beno that the Canadian Airborne Regiment would be operationally ready once the unit had completed Exercise Stalwart Providence when you knew, or ought to have known, that the Regiment was experiencing problems with discipline, cohesiveness, training at the regimental level and informal leadership.

(ii)  to adequately organize, direct and supervise the training preparations of the Canadian Airborne Regiment during the period from receipt of the Warning Order for Operation Cordon until you were relieved of command.

(iii) to ensure that all members of the Canadian Airborne Regiment were adequately trained and tested in the Law of War or the Law of Armed Conflict including the four 1949 Geneva Conventions on the protection of victims of armed conflict.

(iv) in your duty as a Commanding Officer as defined in Queen’s Regulations and Orders, s. 4.20 and in military custom.

This letter is designed to provide greater specification and particularization of the matters previously conveyed to you in your section 13 Notice.

The Commissioners, in writing their Final Report, will limit their comments regarding your possible misconduct to these matters.

[9]        A letter of reply dated February 3, 1997 from the respondent’s counsel reads in part:

We also request further particulars of some of the allegations against LCol. Morneault that are set out in your notice, in order for our client to effectively respond. The allegations, as stated, are very sweeping. The requested particulars include:

(a)  With respect to para. 2 of the notice, what acts or omissions by LCol. Morneault are alleged to have constituted poor and inappropriate leadership in adequately organizing, directing and supervising the training preparations?

(b)  With respect to para. 3 of the notice, what acts or omissions of LCol. Morneault are alleged to have shown poor and inappropriate leadership in training and testing in the Law of War and the Law of Armed Conflict, including the four 1949 Geneva Conventions?

(c)  With respect to para. 4 of the notice, in what respect is LCol. Morneault alleged to have failed to perform his duty as defined in QR&O 4.20?

(d)  With respect to para. 4 of the notice, what “military customs” are being referred to?

[10]      Commission counsel responded by letter dated February 11, 1997, addressed to the respondent’s counsel. The material portion of that letter reads:

For the four allegations against LCol Morneault for which you request further particulars in your February 3, 1997 letter, the Commissioners will consider in their Final Report:

(a)  With respect to para. 2 of the Notice:

He spent insufficient time observing and supervising training and providing direction with respect to training, especially as it related to the tone of the training [see the testimony of BGen Beno, p. 7795 and 8115; Maj Turner, pp. 3547-48, 3446, 3449, 3527, 3674 and 3728; Maj Kyle, pp. 3845, 3808 and 3855-57. LCol Morneault said in his own evidence that he spent 15 to 20 per cent of his time supervising training. [See also his testimony at p. 7321.]

He did not set out a statement of concept, objectives, standards and priorities in the training plan. [See the testimony of BGen Beno, p. 7753; Maj Turner, pp. 3724, 3435-38 and 3619-20; Maj Seward, p. 5760 and Maj MacKay, p. 6485.]

He did not provide uniform training for the various sub-units. [See the testimony of Maj Turner, pp. 3449 and 3528 and MWO Murphy, p. 6646. In this context, the Commissioners will take into account the performance of the CAR during exercise Stalwart Providence.]

Please note: these references are not exhaustive.

(b)  With respect to para. 3 of the Notice:

He did not exercise his responsibility as commander of the CAR, to ensure that all of the personnel under his command were familiar with their rights and obligations under the law of armed conflict (LOAC). Reference should be made to his obligations as set out in the four Geneva Conventions of 1949 (articles 47, 48, 127, 144 respectively for Convention I-IV), and the First Additional Protocol of 1977 (article 87).

The Commissioners will examine the question of whether your client ensured that the members of the CAR understood their obligations toward the basic rights of “detainees”, whether civilian or captured, sick or wounded combatants.

The Commissioners will also consider if your client directed his staff to include adequate LOAC training in the Op Cordon training plan, provided guidance to his subordinates on the content of the LOAC training, directed the OCs to include refresher training in the LOAC in their sub-unit training and tested or provided for testing of all ranks on this subject.

The Commissioners will consider if your client advised the SSF Commander, BGen Beno, or his staff of the importance of including LOAC in Exercise Stalwart Providence, with a view to ensuring that the soldiers understood the principles of the LOAC.

(c)  With respect to para. 4 of the Notice:

The Commissioners will consider whether LCol Morneault retained for himself “important matters requiring the Commander’s personal attention and decision,” in accordance with s. 4.20 of the QR&O. In particular, the Commissions will consider whether he supervised the training of his commandos, supervised specific training in 2 Commando even though problems had been brought to his attention concerning the status of readiness of the sub-units, redressed problems of command within the CAR, adequately assess the operational readiness of the CAR and properly informed his superiors of the state of readiness, discipline and training of the CAR.

A further question which will be addressed is whether LCol Morneault maintained adequate “general control and supervision of the various duties” that he allocated to others. In particular, did he supervise adequately the training plans and activities of the OCs, review properly the orders and directives that his subordinate commanders were issuing and ensure that his orders and directives were being followed as intended.

(d)  With respect to para. 4 of the Notice:

The Commissioners will consider whether LCol Morneault maintained good order and discipline in the unit under his command.

Did he lead by example in the field?

A further reference for you with respect to “military custom” is found in s. 1.13 of Q.R.&O and s. 49 of the National Defence Act.

[11]      Hearings into the pre-deployment phase continued until February 22, 1996. They were followed by hearings into the in-theatre phase, which began on April 1, 1996 and, after a four-month interruption relating to the post-deployment phase, continued until March 1997. In the meantime, the time for completing the Inquiry and for filing a report with the Governor in Council was extended to March 31, 1997 and to June 30, 1997, respectively. A total of 116 witnesses testified before the Inquiry and something in the order of 200,000 documents were filed in evidence. In April 1997 the respondent filed lengthy written submissions and presented oral submissions before the Inquiry with respect to the alleged misconduct.

THE MOTION

[12]      The respondent’s motion focussed on general statements made by the Commission in the preface to Volume 1 of the Report and in the introductory chapter to Volume 4, as well as on specific findings made in Chapter 35 of Volume 4 which is devoted exclusively to the respondent’s conduct as Commanding Officer of the regiment. The principal attack on the general statements is that they ought to have been made the subject of a section 13 notice. While the Motions Judge agreed that this was so, she found that the statements did not apply to the respondent and granted a declaration to that effect.

[13]      In the preface to Volume 1 the Commission laments the Government’s “decision to impose time constraints” on the Inquiry and, more significantly, that the Commissioners “were too often frustrated by the behaviour of witnesses whose credibility must be questioned”. The statement attacked appears in the same section of the Report, at pages xxxii-xxxiii. It reads:

We are cognizant of the institutional and peer pressure on witnesses appearing before us. Giving testimony before a public inquiry is a test of personal integrity that demands the moral courage to face reality and tell the truth. It also involves a readiness to be held to account and a willingness to accept the blame for one’s own wrongdoing. Many soldiers, non-commissioned officers and officers have shown this kind of integrity. They have demonstrated courage and fidelity to duty, even where doing so required an acknowledgement of personal shortcomings or the expression of unwelcome criticism of the institution. These soldier-witnesses deserve society’s respect and gratitude for contributing in this way to improving of an institution they obviously cherish.

With regret, however, we must also record that on many occasions, the testimony of witnesses before us was characterized by inconsistency, improbability, implausibility, evasiveness, selective recollection, half truths, and even plain lies. Indeed, on some issues, we encountered what can only be described as a `wall of silence’. When several witnesses behave in this manner, the wall of silence becomes a wall of calculated deception.

The proper functioning of an inquiry depends upon the truthfulness of witnesses under oath. Truthfulness under oath is the foundation of our system of justice. Some witnesses clearly flouted their oath.

Perhaps more troubling is the fact that many of the witnesses who displayed these shortcomings were officers, non-commissioned members (active or retired) or senior civil servants—individuals sworn to respect and promote the values of leadership, courage, integrity, and accountability. For these individuals, undue loyalty to a regiment or to the military institution or, even worse, naked self-interest, took precedence over honesty and integrity. By conducting themselves in this manner, these witnesses have also reneged on their duty to assist this Inquiry in its endeavours. In the case of officers, such conduct is a breach of the undertakings set out in their Commissioning Scroll.

…

Our concern is not with the mere fact of contradictions in testimony. Even where all who testify speak the truth as they know it, contradictions can occur. Contradictions often relate to recollections of conversations that took place between or among people without the presence of other witnesses and without the benefit of notes. At the time, a particular conversation may have seemed unimportant. The passage of time may have driven its details from memory. We are not concerned with differences in recollection that simply reflect the frailty of human memory. We are concerned, however, with something darker than imprecision and contradiction, something closer to a pattern of evasion and deception.

[14]      The respondent also attacks the general statement at page 953 in the introductory chapter to Volume 4 of the Report. It reads:

A few additional words are called for concerning the portrayal of the actions of individuals that follows. The individuals whose actions are scrutinized are members of the Canadian Forces (CF) who have had careers of high achievement. Their military records, as one would expect of soldiers who have risen so high in the CF pantheon, are without blemish. The Somalia deployment thus represents for them a stain on otherwise distinguished careers. There have been justifications or excuses advanced before us which, if accepted, might modify or attenuate the conclusions that we have reached. These have ranged from “the system performed well; it was only a few bad apples” to “there will always be errors” to “I did not know” or “I was unaware” to “it was not my responsibility” and “I trusted my subordinates”. We do not review these claims individually in the pages that follow, but we have carefully considered them.

Also mitigating, to a certain extent, is the fact that these individuals must be viewed as products of a system that placed great store in the “can do” attitude. The reflex to say “yes sir” rather than to question the appropriateness of a command or policy obviously runs against the grain of free and open discussion, but it is ingrained in military discipline and culture. However, leaders properly exercising command responsibility must recognize and assert not only their right but their duty to advise against improper actions, for failing to do so means that professionalism is lost.

[15]      The respondent also challenges various specific findings in Chapter 35 of Volume 4 for lack of procedural fairness and for absence of evidentiary support.

[16]      It was contended before the Motions Judge that the Chapter 35 findings in issue were not reviewable under paragraph 18.1(4)(d) of the Federal Court Act because they did not constitute “decisions”. The Motions Judge rejected this argument. She rejected the appellant’s further argument that, in any event, there was evidence in the record of the Inquiry to support each of the Chapter 35 findings. After proceeding to a detailed examination of those findings the Motions Judge concluded, at paragraph 109 [pages 285-286] of her reasons:

It is clear, on the basis of the above, that the Commission’s finding of misconduct against the applicant on the ground that he failed to adequately organize, direct, and supervise training preparations from September 5, 1992 to September 21, 1992 is deeply flawed. Many of the primary findings of fact simply do not accord with the evidence. Many conclusions are simply not supported by the evidence. I do not think it is possible to reach any other conclusions than that the decision was patently unreasonable.

ISSUES

[17]      Three issues are raised in this appeal. First, whether the Motions Judge erred in determining that the Commission did not give reasonable notice of matters that were eventually cited by the Commission as grounds for findings of misconduct. Second, whether the Judge erred in determining that the findings of misconduct constituted reviewable “decisions” under paragraph 18.1(4)(d) of the Federal Court Act. Third, whether the Judge erred in determining that findings of fact made by the Commission in respect of the respondent’s conduct were not supported by the evidence and, therefore, were patently unreasonable.

[18]      I turn to a discussion of these issues.

ANALYSIS

Reasonable notice

The general statements

[19]      The respondent contends that the general statements in issue include findings that reflect adversely on his own reputation and that he was denied procedural fairness because they were not made the subject of a section 13 notice. He maintains as well that five specific findings made by the Commission in Chapter 35 were not the subject of such a notice.

[20]      The requirement for “reasonable notice” of alleged misconduct is laid down in section 13 of the Inquiries Act, which reads:

13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.

[21]      The critical importance for reasonable notice of alleged misconduct is made clear in Krever, supra, given that a finding may damage the reputation of a witness. As Cory J. put it, at paragraph 56 [pages 471-472]:

That same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13 of the Inquiries Act. A commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report. As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the only harm which could be caused by the issuing of detailed notices would be to a party’s reputation. But so long as notices are released only to the party against whom the finding may be made, this cannot be an issue. The only way the public could find out about the alleged misconduct is if the party receiving the notice chose to make it public, and thus any harm to reputation would be of its own doing. Therefore, in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed their jurisdiction.

If a notice of alleged misconduct complies with section 13 requirements and the inquiry process is otherwise fair, a commission of inquiry is authorized by that section, as Cory J. found in Krever, supra, at paragraph 52 [pages 469-470], to make findings of fact and reach conclusions based upon the facts.

[22]      The tone of the statement in the preface to Volume 1 is unquestionably harsh. However, while the respondent complains that the statement applies to him, the language in which it is couched suggests that this is not necessarily so. It refers to “the testimony of witnesses”, “several witnesses” and “some witnesses”, and states that “many of the witnesses who displayed these shortcomings were officers, non-commissioned officers, and senior civil servants”. It is clear, therefore, that the statement is not aimed at all senior officers so as to unmistakably include the respondent. The Motions Judge herself concluded with respect to both statements that it was not “seriously contended that the statements of general condemnation” applied to Lieutenant-Colonel Morneault.

[23]      Even if it could be said that the statement in Volume 1 applies to the respondent, I am not at all sure that its presence deprived the respondent of procedural fairness. There would appear to be no link between that statement and findings of misconduct in Chapter 35. What needs to be addressed is whether the adverse findings of credibility suggested by the statement required a section 13 notice, assuming for the moment that the statement was intended to apply to the respondent. As was emphasized by Cory J. in Krever, supra, at paragraph 52 [page 469], the “primary role, indeed the raison d’être, of an inquiry investigating a matter is to make findings of fact” and that, in doing so, the commission “may have to assess and make findings as to the credibility of witnesses”. Indeed, as Cory J. explained in that case, at paragraph 42 [page 465], the very wording of section 13 of the Inquiries Act “by necessary inference authorizes a commissioner to make findings of fact and to reach conclusions based upon those facts, even if the findings and conclusions may adversely affect the reputation of individuals or corporations”. He also explained, at paragraph 40 [page 463], that the authority in section 13 to make findings of “misconduct” encompasses “not only finding the facts, but also evaluating and interpreting them” and, if necessary, “to weigh the testimony of witnesses … and make findings of credibility”. It is by adhering to this process that a commissioner is able to determine whether a party’s behaviour amounted to “misconduct”.

[24]      The process would not in general appear to require the giving of prior notice that a party’s credibility may be made the subject of an adverse finding. Such a finding could be made only after the witness had testified and perhaps not until his or her testimony could be weighed and evaluated in the light of other evidence. A requirement that there be prior notice could well impose on a commission of inquiry an unduly onerous standard of procedural fairness.

[25]      By contrast with the Volume 1 statement, the general statement in the introductory chapter to Volume 4 would appear on its face to apply to all of the military officers whose conduct is addressed in that volume including the respondent. Thus the “portrayal of actions” is of the “individuals that follows”, namely, “members of the Canadian Forces … whose actions are scrutinized”. The statement is objected to on the twin bases that the respondent was not given prior notice and that the evidence does not support the finding that the respondent conducted himself in the manner described in the statement. The Motions Judge concluded that the statement ought not be have been made because no reasonable notice had been given in compliance with section 13.

[26]      The appellant contends that the statement is unassailable because it cannot be construed as a finding of misconduct against the respondent. I find this difficult to accept. As a “product of the system” the respondent was one whose reflex was to say “yes sir”, who as a “leader exercising command responsibilities” had a “duty to advise against improper actions” and to lose “professionalism” by failing in that duty. There is a direct link between the statement and the findings in Chapter 35 for, as we have seen, the statement is expressly tied to the “individuals that follow”. The appellant conceded before the Motions Judge and in written argument on appeal that the statement did not amount to misconduct and, indeed, the Motions Judge herself found that it did not apply to the respondent. In my view, the Court should, if it can, uphold the declaratory order below in this respect, so as to remove any possible question that this critical statement which, on its face, applies to the respondent was not intended to apply to him.

Availability of declaratory relief

[27]      There was a time when declaratory relief was not available if it would have no legal effect, but this is no longer so. In Merricks v. Nott-Bower, [1964] 1 All E.R. 717 (C.A.), at page 721, Lord Denning stated:

If a real question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration. A good instance is the recent case on the football transfer system decided by Wilberforce, J., Eastham v. Newcastle United Football Club, Ltd. ([1963] 3 All E.R. 139). Counsel for the plaintiff’s said that, in this particular case, the declaration might be of some use in removing a slur which was cast against the plaintiffs by the transfer. He also put us on the wider ground of the public interest that the power to transfer can only be used in the interest of administrative efficiency and not as a form of punishment. He said that it would be valuable for the court so to declare. Again on this point, but without determining the matter, it seems to me that there is an arguable case that a declaration might serve some useful purpose.

Salmon L.J., concurring, added at page 724:

It is said: Even if the plaintiffs’ rights under the regulations were infringed, what good could the remedies which are claimed by the plaintiffs do them? Can they benefit by these declarations? If a plaintiff seeks some declaration in which he has a mere academic interest, or one which can fulfil no useful purpose, the court will not grant the relief claimed. In this case, however, again without deciding the point in any way, it seems to me clearly arguable that, if the declarations are made, they might induce those in authority to consider the plaintiffs’ promotion, there being some evidence that the alleged transfers by way of punishment have prejudiced, and whilst they remain will destroy, the plaintiffs’ chances of promotion.

The principle was applied by Pratte J. (as he then was) in Landreville v. The Queen, [1973] F.C. 1223 (T.D.), at page 1231 and very recently, again in the context of a commission of inquiry, in Peters v Davison, [1999] 2 NZLR 164 (C.A.), at pages 186-187. The Motions Judge granted declaratory relief in respect of this error. I am satisfied that this remedy was available notwithstanding Cory J.’s characterization of a report of a commission of inquiry in Krever, supra, as having “no legal consequences”. Cory J. acknowledged at the same time that it is precisely because the reputation of a witness is at stake that procedural fairness must be accorded for, as he put it at paragraph 55 [page 471]: “For most, a good reputation is their most highly prized attribute”. In my view the respondent does have an interest in protecting his reputation. It is also to be noted that rule 64 of the Federal Court Rules, 1998 [SOR/98-106] provides for the granting of declaratory relief, whether or not any consequential relief is or can be claimed.

[28]      It seems to me that while a declaration would not affect a legal right, it would serve the useful purpose of removing any possible, though perhaps unintended, harm that may have been caused to the respondent’s reputation by the statement in the introductory chapter to Volume 4 of the Report. I would restrict the declaration accordingly.

Specific findings

[29]      Five specific findings in Chapter 35 of the Report are then attacked on the ground that they were not made the subject of prior notice in compliance with section 13. I shall underline these findings in the following extracts from Chapter 35:[2]

1.   … personal supervision is of utmost importance and must be made one of the highest priorities in the matter of training, if not the overall priority, for it is on the CO that the greatest responsibility for training falls. We find, however, that LCol Morneault failed to meet this important responsibility in two respects. First, he failed to inculcate in his commandos, through the design of an appropriate training plan and through adequate direct supervision, an attitude suitable to a peacekeeping mission.

…

2.   … LCol Morneault knew his troops were training for a Chapter VI United Nations peacekeeping mission, and he knew or ought to have known that such missions require a broader knowledge base than normal general purpose combat training permits. Despite this, he allowed 2 Commando (2 Cdo) to train in a manner far too focused on general purpose combat skills, and with a level of aggression not in keeping with a peacekeeping mission. LCol Morneault himself admitted that 2Cdo spent too much time on general purpose combat training, and did not complete the tasks it was assigned. LCol Morneault also knew of 2 Cdo’s aggressiveness.

3.      We find that LCol Morneault knew early in the training period that 2 Cdo had problems with leadership and aggressiveness, and that these problems were closely linked. He was the primary officer answerable for training, and bore the responsibility of ensuring that pertinent and adequate training was conducted by the appropriate officers commanding (OCs). If any of the OCs were found lacking, it was incumbent upon LCol Morneault to make the required changes. But LCol Morneault did not make these changes.

4.      LCol Morneault responded similarly to LCol MacDonald’s criticisms of Maj Seward and 2 Cdo. He told him that he did not want his hands tied with regard to Maj Seward and requested that LCol MacDonald remove critical comments about Maj Seward from a letter LCol MacDonald was to send to BGen Beno. LCol MacDonald deleted the reference as LCol Morneault requested, and no subsequent action was taken to correct the serious deficiency in 2Cdo’s leadership as noted by LCol MacDonald. Though LCol Morneault was relieved of command almost immediately after this incident, and cannot be held responsible for others’ inactions, his direction to LCol MacDonald prevented immediate action from being taken against Maj Seward, and for this he is accountable.

5.      On this point, one of the more serious criticisms arising from Stalwart Providence was that the three commandos operated independently without the cohesion required of a regimental unit. Cohesion develops in accordance with clear training direction issued from the CO, and is ensured only when the CO personally supervises the execution of that direction. LCol Morneault did neither. [Emphasis added.]

[30]      The Motions Judge found that reasonable notice had not been given of many of the matters cited by the Commission in these Chapter 35 findings. She noted further, at paragraph 46 [page 267] of her reasons, that most of the negative comments concerning the respondent’s conduct “originated with one person, a person whose version of events conflicted with his own”, and that the comments were repeated by others. “In those circumstances”, she added, “the applicant would have great difficulty knowing, in the absence of specific notice, which of the statements concerning his conduct the Commission was treating seriously”.

[31]      I must respectfully disagree that the respondent was not given reasonable notice of these findings. It is to be recalled that Commission counsel’s letter of January 31, 1997, as amplified by his letter of February 11, 1997, sets forth a general allegation that the respondent had “exercised poor and inappropriate leadership in the pre-deployment phase of the Somalia mission” by failing, inter alia:

… to adequately organize, direct and supervise the training preparations of the Canadian Airborne Regiment during the period from the receipt of the Warning Order for Operation Cordon until [he was] relieved of command;

…

… in his duty as a Commanding Officer, as defined in Queen’s Regulations and Orders, art. 4.20, and in military custom.

[32]      These allegations were clearly the prime focus of the Commission’s findings in Chapter 35. That training of the regiment while the respondent was its Commanding Officer was the Commission’s predominant concern is made plain at the beginning of the chapter, where the Commission stated:[3]

As the Commanding Officer (CO) of the Canadian Airborne Regiment (CAR) until October 23, 1992, LCol Morneault bore primary responsibility to ensure that training was conducted appropriately during that time with regard to factors relevant to a peacekeeping mission. Training is fundamental to deployment preparations and is the principal activity through which leadership is exercised, attitudes conveyed, and operational readiness ascertained. Those who bear responsibility for training are therefore expected to pay particular attention to its proper supervision, ensuring that the conduct of training is adequate and appropriate, and that its progression follows a carefully articulated plan.

With respect to the applicability of article 4.20 [of the Queen’s Regulations and Orders for the Canadian Forces (1994) Revision)] and military custom, the Commission wrote:[4]

Given our findings above concerning the leadership failures of LCol Morneault, and in view of the importance of control and supervision of training for overseas missions, we conclude that LCol Morneault failed as a commander.

[33]      As early as September 22, 1995, the respondent was put on formal notice that the Commission would investigate the “suitability of the regiment” for service in Somalia, its “readiness”, the “screening of officers and non-commissioned officers”, the “appropriateness of training objectives and standards” and “effectiveness of decisions and actions taken during the training period prior to deployment”, and the “state of discipline”. The particularized notice of January 31, 1997, as we have seen, laid primary emphasis on the adequacy of “training preparations” for the Somalia assignment. It was followed by the letter of February 11, 1997, which contained additional details of alleged misconduct as particularized in the January 31, 1997 letter with respect to the adequacy of “training preparations” and performance of the duty imposed by article 4.20 of the QR&O and by military custom.

[34]      In my view, when the findings in issue are viewed in their immediate contexts and the entire context of Chapter 35, it cannot be said that the respondent was denied procedural fairness due to lack of reasonable notice. It seems to me that the findings were well within the scope of the notice and of the Commission’s mandate. I am satisfied in all of the circumstances that the respondent was given reasonable notice in accordance with section 13 of the Inquiries Act. The respondent was present in person or by counsel throughout all of the evidentiary hearings into the pre-deployment phase, was provided in advance with a summary of what other witnesses intended to say on the stand, had access to all of the documentary evidence, had the right to examine and cross-examine witnesses and to apply to call witnesses of his own, was prepared by Commission counsel prior to testifying, was given the opportunity to, and did, present oral submissions and written submissions before the findings in issue were made. The written submissions, running to some 117 pages, addressed in much detail the issues of training and discipline within the regiment. In my view, all of these factors are relevant in considering whether the respondent was given reasonable notice. They, together with the section 13 notice, made the respondent aware of the substance of the case against him such that nothing that the Commission found could have caught him by surprise: see Canadian Fishing Company Limited et al. v. Smith et al., [1962] S.C.R. 294, at page 316.

Reviewability of Commission’s findings

[35]      The respondent next attacks specific findings made in Chapter 35 on the basis that they are not supported by the record. The Motions Judge agreed and declared them invalid. These findings are conveniently summarized by the Motions Judge in her reasons [at paragraphs 40-41, pages 265-266]:

I turn then to a summary of the findings against Lieutenant-Colonel Morneault set out in chapter 35 of the Commission’s Report. The relevant portion of the text starts with the statement that Lieutenant-Colonel Morneault failed to meet his important responsibilities with respect to training because he failed to inculcate in his commandos, through the design of an appropriate training plan and through adequate direct supervision, an attitude suitable to a peacekeeping mission. The Report then states that: he spent insufficient time directly supervising the troops; the content of the training plan was too focussed on general purpose combat skills with an inappropriate level of aggression; he ought to have known that a broad knowledge base was required; he had been warned several times about the inappropriate level of aggression in the training but had not corrected this; he had not removed Major Seward as officer commanding of 2 Commando when he had been told that that officer was not fit to command the unit; he had prevented immediate action being taken against the officer.

The second basis for the Commission’s finding of misconduct with respect to training set out in the Report is that Lieutenant-Colonel Morneault failed to adequately instruct his OCs on the aim, scope, and objectives of the training they were to conduct, and failed to include a proper statement of these in the training plan he designed; he should have known that a written statement clearly establishing priorities within an overall training concept is an important feature of training direction; the cohesiveness within the Regiment suffered as a result of this absence; he failed to make every effort to draw his unit together as a cohesive whole.

[36]      Two discrete issues are raised in this connection. The first is whether the Motions Judge erred in concluding that she had jurisdiction to review the findings because they were “decisions” within the meaning of paragraph 18.1(4)(d) of the Federal Court Act and, second, whether she erred in determining that the findings were not supported by the Inquiry’s record.

[37]      The issue of reviewability is certainly novel and not without some difficulty. Although the Motions Judge found that the Chapter 35 findings were “decisions” that were amenable to review under paragraph 18.1(4)(d), the whole of the section should be examined not only so as to assist in the interpretation of that paragraph but because it was invoked by the respondent in his application for judicial review.

[38]      Section 18.1 reads:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

(3) On an application for judicial review, the Trial Division may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order , act or proceeding of a federal board, commission or other tribunal.

(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

(5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may

(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and

(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.

[39]      The Motions Judge noted that the procedure adopted by the Commission in investigating the alleged misconduct was similar to that which applies in a court of law, and that this supported an argument that the findings were “decisions” reviewable under paragraph 18.1(4)(d). Her analysis on the point appears in paragraph 52 [page 269] of her reasons, where she stated:

The procedure followed by the Commission for the purpose of its volume 4 findings has many similarities to that followed in a court: the proceedings are all held in public; the individuals are answering “charges of misconduct”; the individuals are allowed to call at least some witnesses; they are given an opportunity to make submissions; the outcome is either a dismissal of the “charge” or a finding of misconduct against the individual. This is a quasi-judicial decision-making process. In addition, the Commission’s findings of individual misconduct against named individuals can have grave consequences for the reputations and careers of those individuals. To hold that decisions arising out of such a process are not reviewable under paragraph 18.1(4)(d) would be completely contrary to the whole purpose of judicial review and its development as a remedy in the law.

[40]      The issue, in my view, resolves itself into one of statutory construction. It is not clear, however, that similarities in procedure by itself affords a reliable basis for concluding that the findings in issue are “decisions” reviewable under paragraph 18.1(4)(d). This Court has been called upon on many occasions to construe the phrase “decision or order … required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal” in section 28 of the Act as it read prior to the 1990 amendments. As has been pointed out in D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf ed. (Toronto: Canvasback Publishing, 1998), at paragraph 2:4420, note 376, “initially the Court restricted the term to ‘final’ decisions or orders, and to those that the tribunal was expressly charged by its enabling legislation to make” but, subsequently, the scope of section 28 was “broadened to include a decision that was fully determinative of the substantive rights of the party, even though it may not be the ultimate decision of the tribunal”. Indeed, a recommendation to a Minister of the Crown by an investigative tribunal which by reasonable expectation would lead to a deportation, has been considered reviewable under section 28: Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624 (C.A.).

[41]      I must confess to some difficulty in viewing the findings in issue as “decisions” within the meaning of the section. The decision in Krever, supra, [at paragraph 34, page 460] suggests that the contrary may be true for, as has been seen, the findings of a commissioner under the Inquiries Act “are simply findings of fact and statements of opinion” that carry “no legal consequences”, are “not enforceable” and “do not bind courts considering the same subject matter”. In an earlier case, Nenn v. The Queen, [1981] 1 S.C.R. 631, at page 636, it was held that the “opinion” required of the Public Service Commission under paragraph 21(b) of the Public Service Employment Act, R.S.C. 1970, c. P-32, was not a “decision or order” that was amenable to judicial review by this Court under section 28. I must, however, acknowledge the force of the argument the other way, that the review of findings like those in issue is available on the ground afforded by paragraph 18.1(4)(d) despite their nature as non-binding opinions, because of the serious harm that might be caused to reputation by findings that lack support in the record.

[42]      If a ground for granting relief is not available under that paragraph, I have the view that the findings are yet reviewable under the section. Judicial review under section 18.1 is not limited to a “decision or order”. This is clear from subsection 18.1(1) which enables the Attorney General of Canada and “anyone directly affected by the matter” to seek judicial review. It is plain from the section as a whole that, while a decision or order is a “matter” that may be reviewed, a “matter” other than a decision or order may also be reviewed. This Court’s decision in Krause v. Canada, [1999] 2 F.C. 476 (C.A.) illustrates the point. It was there held that an application for judicial review pursuant to section 18.1 for a remedy by way of mandamus, prohibition and declaration provided for in section 18 [as am. by S.C. 1990, c. 8, s. 4] of the Act, were “matters” over which the Court had jurisdiction and that the Court could grant appropriate relief pursuant to paragraphs 18.1(3)(a) and 18.1(3)(b). See also Sweet v. Canada (1999), 249 N.R. 17 (F.C.A.); Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.). I am satisfied that the respondent is directly affected by the findings and that they are amenable to review under section 18.1. The findings are exceptionally important to the respondent because of the impact on his reputation. The Court must be in a position to determine whether, as alleged, the findings are not supported by the evidence.

[43]      To be reviewable under section 18.1 a “matter” must yet emanate from “a federal board, commission or other tribunal”. Such was the case in Krause, supra. The phrase “a federal board, commission or other tribunal” is defined in subsection 2(1) of the Act to mean “any body or any person having, exercising or purporting to exercise jurisdiction or power conferred by or under an Act of Parliament. In my view, the Commission falls within the scope of that definition, for it derived its mandate from the March 20, 1995 Order in Council as subsequently amended and its detailed investigatory powers and power to make findings of misconduct from the Inquiries Act: see Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.).

[44]      If, as I have stated, the findings in issue are reviewable under section 18.1, it would follow that relief may be made available under subsection 18.1(3) provided a ground for granting relief is established under subsection 18.1(4). If the findings are not “decisions or orders” no ground for review is available under paragraph 18.1(4)(d) or 18.1(4)(c). The appellant suggested in argument that a finding of the Commission that happened to be contrary to the evidence might be reviewed under paragraph 18.1(4)(f), “acted in any other way that was contrary to law”. I have difficulty in accepting this argument in that the intent of the paragraph appears to have been to afford a ground that was not otherwise specifically mentioned in subsection 18.1(4). I leave the point open as I believe that an unsupported finding in Chapter 35 made in exercise of the Commission’s statutory powers falls within the scope of paragraph 18.1(4)(b). While natural justice and procedural fairness are usually associated with the quality of a hearing that ends with a decision or order, it has not been so confined by the case law. Thus, natural justice will be denied if the findings of the tribunal, including those of a commission of inquiry, are not supported by some evidence: Mahon v. Air New Zealand Ltd., [1984] 1 A.C. 808 (P.C.), per Lord Diplock, at page 820:

The rules of natural justice that are germane to this appeal can, in their Lordships’ view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490, which was dealing with the exercise of an investigative jurisdiction, though one of a different kind from that which was being undertaken by the judge inquiring into the Mt. Erebus disaster. The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

See Sir William Wade and C. Forsyth, Administrative Law, 7th ed. (Oxford: Clarendon Press, 1994), at page 540. See also Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 3 F.C. 259 (T.D.), at paragraph 144 [page 315]; compare Ontario Public Service Employees’ Union et al. and The Queen in right of Ontario, Re (1984), 45 O.R. (2d) 70 (Div. Ct.); Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 1585, [1996] O.J. No. 3039 (Div. Ct) (QL).

[45]      If the findings in issue are supported by some evidence, the respondent could not really complain that the findings may have harmed his reputation. On the other hand, if there was no evidence to support the findings, the potential harm to the respondent’s reputation would be significant. The respondent could not go back to the Commission to have the error corrected. Its mandate has been exhausted. Nor could he appeal an erroneous finding to a court of law. Unless the findings in issue are reviewable under section 18.1, any error that may have been committed could never be corrected and harm that may have been done could never be undone. The respondent would be obliged to live with the harm for the rest of his life regardless of how much damage may have been done to his reputation. This would seem unjust. I concede that these considerations alone are not decisive of the issue of reviewability, but neither are they to be ignored. I am satisfied, however, that a case such as this is indeed reviewable on the ground provided in paragraph 18.1(4)(b) so as to ensure that natural justice has been done and that no unjustified harm is caused to the respondent’s reputation.

The Inquiry’s evidentiary record

[46]      I turn then to the appellant’s argument that the findings in issue are supported by the record. The Motions Judge examined the findings on a standard of patent unreasonableness, although they are findings of a commission of inquiry. Where that standard applies, the Supreme Court has held that “if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same decision” the decision is not patently unreasonable: United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pages 340-341. Given that the findings are those of a commission of inquiry, I prefer to review them on a standard of whether they are supported by some evidence in the record of the inquiry. In Mahon, supra, at page 814, Lord Diplock remarked on differences between an investigative inquiry and ordinary civil litigation and went on, at page 820, to lay down the two rules of natural justice in the passage quoted above. He then added, at page 821:

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

[47]      I am satisfied from my own examination of the Inquiry’s record that it contains some evidence to support each of the findings which the Motions Judge found to be unsupported. I say this even if the evidence may not appear to be wholly consistent for, in the final analysis, it was for the Commission to weigh and assess the evidence of the various witnesses in coming to its findings of fact. It scarcely requires mention that such is not an easy task in the best of circumstances, and certainly not here where the sense of frustration with some of the testimony is made readily apparent in the Report. In my view, therefore, it is surely not the proper function of a reviewing Court to assume the role of the Commissioners by reweighing and reassessing the evidence that is here in dispute.

[48]      As to the first of these findings, the respondent testified that “of the time available to me, I think it is 15 per cent of my time, 15 to 20 per cent of my time supervising training”.[5] This evidence and other evidence on the point are discussed in the respondent’s written submissions, at paragraphs 165-173.[6] The finding that the time spent was “insufficient” would appear to represent the conclusion or opinion the Commission arrived at on the basis of the facts found.[7] Then a finding is made that the respondent knew or ought to have known that a peacekeeping mission “requires a broader knowledge base than normal general purpose combat training permits”. There is evidence to the effect that a peacekeeping mission involves a “completely different mind set”[8] and that too little “mission-specific training” had been given to the soldiers during the pre-deployment phase.[9] The finding that the respondent allowed 2 Commando “to train in a manner far too focussed on general purpose combat skills, and with the level of aggression not in keeping with a peacekeeping mission” would, again, appear to be supported by the record. There was some evidence of general purpose combat training including use of lethal force in 2 Commando that was not compatible with a peacekeeping mission.[10] The finding that the respondent “failed to take Captain Kyle’s criticism of 2 Commando training seriously” appears to have some basis in the evidence.[11] So too the finding that a direction given by the respondent to Lieutenant-Colonel MacDonald “prevented immediate action being taken against Major Seward, the officer commanding 2 Commando” and for which the respondent was accountable.[12] Similarly, the finding that the respondent “failed to adequately instruct his OCs on the aim, scope and objective of the training that they were to conduct, and failed to include a proper statement of these in the training plan he designed”, has support in the evidence.[13] Finally, the findings that the 3 Commando units “operated independently without the cohesion required of a Regimental unit” and that the respondent “failed to make every effort to draw his unit together as a cohesive whole”, has support in the evidence.[14]

DISPOSITION

[49]      I would allow the appeal in part, set aside the order of the Trial Division and substitute a declaration that the general statement quoted above and appearing at pages xxxii-xxxiii of Volume 1 and the general statement quoted above and appearing at page 953 of Volume 4 of the Report do not apply to the respondent. In all other respects I would dismiss the application for judicial review. As the appellant has enjoyed a large measure of success on this appeal, she should have two-thirds of her party and party costs of the appeal.

Strayer J.A.: I agree.

Robertson J.A.: I agree.

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