[1997] 2 F.C. 36
A-600-96
The Canadian Red Cross Society, George Weber, Dr. Roger A. Perrault, Dr. Martin G. Davey, Dr. Terry Stout, Dr. Joseph Ernest Côme Rousseau, Dr. Noel Adams Buskard, Dr. Raymond M. Guévin, Dr. John Sinclair MacKay, Dr. Max Gorelick, Dr. Roslyn Herst and Dr. Andrew Kaegi (Applicants/Appellants)
v.
The Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada, l’honorable Horace Krever, ès qualité de Commissaire de l’enquête sur le système d’approvisionnement en sang au Canada suivant le décret C.P. 1993-1879 (Respondent)
and
Connaught Laboratories Limited, Bayer Inc., Baxter Corporation and Craig A. Anhorn (Applicants/Cross-appellants)
and
HIV-T Group (Blood Transfused), Canadian AIDS Society, Canadian Hemophilia Society, Hepatitis C Survivors’ Society, Janet Connors (Infected Spouses and Children Association), Canadian Hemophiliacs Infected with HIV, Guy-Henri Godin et Jean-Daniel Couture, le Groupe de l’hépatite C des transfusés et hémophiles/ Hepatitis C. Group of Transfusion Recipients and Hemophiliacs, The Gignac, Sutts Group and The Toronto and Central Ontario Regional Hemophilia Society (Intervenors)
Indexed as: Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (C.A.)
Court of Appeal, Strayer, MacGuigan and Décary JJ.A.—Toronto, December 16, 17, 18, 19 and 20, 1996; Ottawa, January 17, 1997.
Administrative law — Judicial review — Commissioner appointed under Inquiries Act to report on safety of blood system in Canada — Notices delivered under Act, s. 13 advising named individuals, corporations, governments of possible findings of misconduct — Applications for judicial review brought by number of them, dismissed by Trial Judge — Administrative acts not beyond reach of judicial review — Courts should intervene only when content of notice implies obvious excess of jurisdiction, flagrant breach of rules of natural justice — Commissioner having no power to make findings of civil, criminal liability — Case law reviewed as to meaning of “findings of liability” — Allegations of misconduct by Commissioner not conclusions of law in respect of appellants’ civil, criminal responsibility — Commissioner not limiting jurisdiction by giving assurances to appellants — Requirements of procedural fairness met — Act giving Commissioner considerable latitude — Notices valid except for one individual — As to participation by Commission counsel in preparation of final report, case law on administrative tribunal decisions in disciplinary matters inapplicable.
Health and Welfare — Inquiry on blood system in Canada — Notices sent to individuals, corporations, governments under Inquiries Act, s. 13 — Commissioner not entitled to make conclusions of law in respect of appellants’ civil, criminal liability — Public inquiry under Inquiries Act not trial — Report not judgment — Commissioner having broad latitude, discretion — Rules of procedural fairness followed.
These were appeal and cross-appeals from a Trial Division decision dismissing applications for judicial review of notices delivered under section 13 of the Inquiries Act. In October 1993, the Canadian government established an Inquiry Commission to review and report on the safety of the blood system in Canada. Public hearings were held between November 22, 1993 and December 21, 1995, at which date Commission counsel delivered forty-five notices naming ninety-five individuals, corporations or governments. Depending on the case, the notices contained from one to one hundred allegations of misconduct. A number of those who had received the notices brought applications for judicial review, arguing that the Commissioner did not have the power to state the conclusions of law in relation to their civil or criminal liability and that delivering the notices at the very end of the hearings violated the rules of procedural fairness. The Trial Judge dismissed the applications for judicial review on the basis that the Commissioner had jurisdiction to send the notices, that the challenge was premature and that the applicants had been accorded all procedural safeguards during the hearings. Three main issues were raised on appeal: 1) whether the applications for judicial review were premature; 2) whether the Commissioner had the power to make conclusions of law in respect of the appellants’ civil or criminal liability and 3) whether the requirements of procedural fairness had been met.
Held, the appeal should be dismissed; the cross-appeals should be allowed in part.
1) The submission that the applications for judicial review were premature in that the notices were merely an administrative act setting out hypothetical findings could not be accepted. In modern case law, the so-called “administrative” nature of an act does not place that act beyond the reach of judicial review. One of the objectives of judicial review of the decisions of administrative bodies is to prevent those bodies from doing acts that they do not have the power to do. The hypothetical finding set out in a notice is one that a commissioner has the power to make, as an actual finding, in his report. Here, the act of the Commissioner that is being challenged is not pure speculation on his part that might have been gleaned from his conduct or his comments at the inquiry; rather, it is an opinion clearly expressed by his representatives to the effect that such conclusions are possible. In principle, it is possible to apply to quash a notice that a commissioner decides to give under section 13. In practice, however, the courts must show extreme constraint before intervening at this stage. The notices in no way state the Commissioner’s opinion; they merely state the possibility that the Commissioner may state the opinion that there has been misconduct. The courts should intervene only when the content of the notice implies an obvious excess of jurisdiction, or discloses a flagrant breach of the rules of natural justice. However legitimate and important the objective may be, it does not justify all the means that might be used to achieve it. The search for truth does not excuse the violation of the rights of those being investigated. The considerable powers of commissioners and the ready, numerous and often tempting opportunities for abuse make it particularly necessary that the courts be vigilant.
2) A public inquiry into a tragedy would be quite pointless if it did not lead to identification of the causes and players for fear of harming reputations and because of the danger that certain findings of fact might be invoked in civil or criminal proceedings. It is almost inevitable that such an inquiry will tarnish reputations and raise questions in the public’s mind concerning the responsibility borne by certain individuals. Section 13 of the Act expressly permits a commissioner to make findings of “misconduct”, that is breach of a standard of conduct. To contend that a commissioner may not find that a person has breached a duty is to strip section 13 of any meaning and to muzzle a commissioner. What the appellants objected to was not disclosure of their names, but the wording of the allegations that might be made against them. It must be taken for granted that the Commissioner has no power to make findings of liability. The expression “findings of liability” is hallowed by practice and the case law. The appellants raised an argument, based upon a decision of the Ontario Court of Appeal in Re Nelles et al. and Grange et al. , that the Commissioner may not express his opinion in terms that would give it the weight of a decision or determination of civil or criminal liability in the eyes of the public. They were, however, wrong to try to create a general principle of law out of comments that were not intended to be such, that were made in an entirely unique context and that, if taken literally, would to all intents and purposes paralyze the work of most commissions of inquiry. The test set out in Nelles and approved by the Supreme Court of Canada in Starr v. Houlden is not applicable to public inquiries that are not concerned with the commission of particular crimes. The Commissioner cannot state an opinion that one or another of the appellants is criminally or civilly liable for acts or omissions; nor can he get around this prohibition by using terms that, while less precise, would suggest that this essentially is his opinion. The more a commissioner uses terms that have hallowed legal meaning, the more he will expose himself to having his findings viewed by the courts, in the exercise of their supervisory power, as determinations of responsibility. Although the choice of certain expressions in the impugned notices and the imputation of intent based on mere knowledge of a fact, on their face, gave the impression of being allegations of liability, the Commissioner has not made allegations of misconduct in terms that amount to conclusions of law in respect of the appellants’ civil or criminal liability. The Commissioner has not limited his jurisdiction by giving appellants assurances that he would make no findings as to their civil or criminal liability; rather, he described it as it was. The appellants were aware from the outset that the Commissioner would be getting to the bottom of things, but would refrain from determining civil or criminal liability on the part of anyone. The rules of procedure were laid down on the basis of this dual objective and they were followed throughout the Inquiry with no objection from the parties.
3) Essentially, the appellants challenged the Commissioner’s decision to wait until the end of the hearings before giving the notices required by section 13. The Inquiries Act does not impose any code of procedure. While a commissioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act. A public inquiry under the Inquiries Act is not a trial, the report of a commissioner is not a judgment and his recommendations may not be enforced. Section 13 requires “reasonable notice”, which means that notice must be given “in the course of an investigation” and before the report is made. There is no requirement that the notice be given to a person before he testifies. The Act gives a commissioner the power to give notices, and whenever a public inquiry is conducted, any person whose conduct may be connected, whether closely or otherwise, to the investigation must be aware that an allegation of misconduct would be made against him or her. Since the Commissioner enjoys considerable latitude, nothing would prevent him from waiting until the end of the hearings, when he has all the information required, to give notices, rather than taking a day to day approach to it, with the uncertainty and inconvenience that this might involve. It was not impossible for the appellants to respond adequately within the time allowed or within a longer time frame, which they did not really make any attempt to obtain.
The cases of Baxter Corporation and Craig A. Anhorn are particular. Baxter deliberately chose not to seek standing as a participant; it believed that its conduct would be of little interest to the Commission. It took a calculated risk and must bear the consequences. In its case, there was nothing that obliged the Commissioner to do anything other than what he did. As for Anhorn, Commission counsel knew, when they met with him in early September 1995 and when they formally questioned him about seven days later, that his conduct was likely to lead to allegations of misconduct being made against him. Because Anhorn was not a party to the Inquiry, he did not receive the memorandum sent to the parties by the Commission on October 26, 1995. Commission counsel had put him in the same basket as the parties or witnesses who were represented by Red Cross counsel. The work done by Commission counsel was so haphazard, as it related to Anhorn, that at least two of the allegations refer to incidents that allegedly occurred at the Red Cross months after he ceased to be employed there. Commission counsel did not forewarn him as to what the subject of his testimony would really be. In the circumstances, procedural fairness was not observed and the notice given to Anhorn should be quashed.
The Court was asked to prohibit Commission counsel from participating in the preparation of the final report, first because the latter contributed to the preparation of the notices and thereby took a position against the appellants, and second because there was a risk that the Commissioner might base certain findings in his report on evidence that is not in the record. With respect to the first argument, the notices stated no finding by the Commissioner or his counsel and could not be said, at this stage, to disclose any bias on their part. The second argument was premature in that the Commissioner had not made a final decision as to the role, if any, he intended to assign to his counsel in the preparation of the final report. A final report is not a decision and the case law that may have developed in relation to decisions made by administrative tribunals, particularly in disciplinary matters, does not apply. What is important is that the findings the Commissioner makes in his report be his own. If, in order to make those findings, he considers it advisable to seek the assistance of one or more of his counsel, in relation to questions of fact, evidence and law, he must have broad latitude to do so.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 96.
Coroners Act, S.Q. 1966-67, c. 19.
Criminal Code, R.S.C., 1985, c. C-46, s. 121.
Federal Court Act, R.S.C, 1985, c. F-7, ss. 2(1) (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.1 (as enacted idem, s. 5).
Federal Court Rules, C.R.C., c. 663, R. 1203(3) (as am. by SOR/79-57, s. 20).
Inquiries Act, R.S.C., 1985, c. I-11, ss. 2, 6, 12, 13.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of Indian Affairs and Northern Development v. Ranville et al., [1982] 2 S.C.R. 518; (1982), 139 D.L.R. (3d) 1; [1983] 1 C.N.L.R. 12; 44 N.R. 616; [1983] R.D.J. 16; Bisaillon v. Keable, [1983] 2 S.C.R. 60; (1983), 2 D.L.R. (4th) 193; 4 Admin. L.R. 205; 7 C.C.C. (3d) 385; 37 C.R. (3d) 289; 51 N.R. 81; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 141 N.S.R. (2d) 1; 124 D.L.R. (4th) 129; 403 A.P.R. 1; 98 C.C.C. (3d) 20; 39 C.R. (4th) 141; 28 C.R.R. (2d) 1; 180 N.R. 1; Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483; 118 D.L.R. (4th) 129; 74 O.A.C. 26 (C.A.).
CONSIDERED:
Richards v. New Brunswick (Commission of Inquiry into the Kingsclear Youth Training Centre), [1996] N.B.J. No. 272 (Q.B.) (QL); Re Nelles et al. and Grange et al. (1984), 46 O.R. (2d) 210; 9 D.L.R. (4th) 79; 42 C.P.C. 109; 3 O.A.C. 40 (C.A.); Starr v. Houlden, [1990] 1 S.C.R. 1366; (1990), 68 D.L.R. (4th) 641; 55 C.C.C. (3d) 472; 110 N.R. 81; 41 O.A.C. 161; O’Hara v. British Columbia, [1987] 2 S.C.R. 591; (1987), 45 D.L.R. (4th) 527; [1988] 1 W.W.R. 216; 19 B.C.L.R. (2d) 273; 38 C.C.C. (3d) 233; 80 N.R. 127; Faber v. The Queen, [1976] 2 S.C.R. 9; (1975), 65 D.L.R. (3d) 423; 37 C.C.C. (2d) 717; 32 C.R. (N.S.) 3; 6 N.R. 1; Consortium Developments (Clearwater) Ltd. v. Sarnia (City) (1996), 30 O.R. (3d) 1 (C.A.).
REFERRED TO:
Gage v. Ontario (Attorney-General) (1992), 90 D.L.R. (4th) 537; 55 O.A.C. 47 (Ont. Div. Ct.); Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.) (1989), 100 N.B.R. (2d) 181; 62 D.L.R. (4th) 512; 252 A.P.R. 181; 10 C.H.R.R. D/6426 (C.A.); Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Law Society of Upper Canada v. Canada (Attorney General) (1996), 28 O.R. (3d) 460; 134 D.L.R. (4th) 300; 67 C.P.R. (3d) 48 (Gen. Div.); Braaten v. Sargent and Attorney-General for British Columbia (1967), 61 D.L.R. (2d) 678; 59 W.W.R. 531 (B.C.S.C.); Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641; 94 D.L.R. (4th) 193; 76 C.C.C. (3d) 10; 57 O.A.C. 115 (C.A.); Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 17 Admin. L.R. (2d) 214; 22 Imm. L.R. (2d) 1; 161 N.R. 200 (C.A.); Bovbel v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 563 (1994), 113 D.L.R. (4th) 415; 18 Admin. L.R. (2d) 169; 167 N.R. 10 (C.A.); Re Sawyer and Ontario Racing Commission (1979), 24 O.R. (2d) 673; 99 D.L.R. (3d) 561 (C.A.); Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447; 76 D.L.R. (3d) 38; 1 L.M.Q. 56 (Div. Ct.); Adair v. Ontario (Health Disciplines Board) (1993), 15 O.R. (3d) 705; 67 O.A.C. 202 (Div. Ct.).
AUTHORS CITED
Anthony, Russell J. and Alastair R. Lucas. A Handbook on the Conduct of Public Inquiries in Canada, Toronto: Butterworths, 1985.
Canada. House of Commons. Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. Tragedy and Challenge: Canada’s Blood System and HIV, May 1993 (Chair.: Stanley Wilbee).
De Smith, S. A. et al. Judicial Review of Administrative Action, 5th ed., London: Sweet & Maxwell, 1995.
Krindle, Ruth and Ross Nugent. “Public Interest v. Private Rights: Striking the Balance in Administrative Law” in Isaac Pitblado Lectures. University of Manitoba, Faculty of Law: Winnipeg, 1990.
APPEAL and CROSS-APPEALS from Trial Division decision ([1996] 3 F.C. 259 (1996), 136 D.L.R. (4th) 449; 37 Admin. L.R. (2d) 260) dismissing applications for judicial review of notices delivered under section 13 of the Inquiries Act. Appeal dismissed, cross-appeals allowed in part.
COUNSEL:
Earl A. Cherniak, Q.C. and Kirk F. Stevens for appellants.
Stephen T. Goudge, Q.C., Richard P. Stephenson and Monica J. E. McCauley for cross-appellant Connaught Laboratories Limited.
Philip Spencer, Q.C. and Tim Farrell for cross-appellant Baxter Corporation.
Randal T. Hughes, Tracey N. Patel and Chris D. Woodbury for cross-appellant Bayer Inc.
Douglas G. Garbig for cross-appellant Craig Anhorn.
John C. Murray, Angus T. McKinnon, Michele J. Lawford and Melanie Sopinka for respondent.
Bonnie A. Tough for intervenor Canadian Hemophilia Society.
R. Douglas Elliott and Patricia A. M. Lefebour for Canadian AIDS Society.
Philip S. Tinkler for intervenor Hepatitis C Survivors’ Society.
Dawna J. Ring for intervenor Janet Connors (Infected Spouses and Children Association).
Lori A. Stoltz and Allan D. J. Dick for intervenor HIV-T Group (Blood Transfused).
Pierre R. Lavigne for intervenor The Hepatitis C Group.
William A. Selnes for intervenor Canadian Hemophiliacs Infected with HIV.
Paul C. Nesseth for intervenor Gignac, Sutts Group.
David G. Harvey for intervenor Toronto and Central Ontario Regional Hemophilia Society.
No one appeared for Jean-Daniel Couture and Guy-Henri Godin.
SOLICITORS:
Lerner & Associates, Toronto, for appellants.
Gowling, Strathy & Henderson, Toronto, for cross-appellant Connaught Laboratories Limited.
Blaney, McMurtry, Stapells, Friedman, Toronto, for cross-appellant Baxter Corporation.
Fraser & Beatty, Toronto, for cross-appellant Bayer Inc.
Roebuck, Garbig, Toronto, for cross-appellant Craig Anhorn.
Genest, Murray, DesBrisay, Lamek, Toronto, for respondent.
Blake, Cassels & Graydon, Toronto, for intervenor Canadian Hemophilia Society.
Elliott, Rodrigues, Toronto, for intervenor Canadian AIDS Society.
Tinkler, Morris, Toronto, for intervenor Hepatitis C Survivors’ Society.
Buchan, Derrick & Ring, Halifax, for intervenor Janet Connors (Infected Spouses and Children Association).
Goodman and Carr, Toronto, for intervenor HIV-T Group (Blood Transfused).
Pierre R. Lavigne, Ottawa, for intervenor The Hepatitis C Group.
Kapoor, Selnes, Klimm & Brown, Melfort, Saskatchewan, for intervenor Canadian Hemophiliacs Infected with HIV.
Gignac, Sutts, Windsor, for intervenor Gignac, Sutts Group.
David G. Harvey, Burlington, Ontario, for intervenor Toronto and Central Ontario Regional Hemophilia Society.
Marchand, Magnan, Melançon, Forget, Montréal, for intervenors Jean-Daniel Couture and Guy-Henri Godin.
This is the English version of the reasons for judgment rendered by
Décary J.A.:
The facts
On October 4, 1993, the Government of Canada appointed the Honourable Horace Krever, a judge of the Ontario Court of Appeal (hereinafter referred to as the Commissioner), to review and report on the blood system in Canada. The terms of his commission, which was issued under Part I of the Inquiries Act[1] (the Act), were as follows:
P.C. 1993-1879
Certified to be a true copy of a Minute of a
Meeting of the Committee of the Privy Council,
approved by His Excellency the Governor General
on the 4th day of October, 1993.
The Committee of the Privy Council, on the recommendation of the Prime Minister, advise that a Commission do issue under Part I of the Inquiries Act and under the Great Seal of Canada appointing the Honourable Horace Krever, a Judge of the Ontario Court of Appeal, to be a Commissioner to review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry,
•€€€€€€ the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;
•€€€€€€ the roles, views, and ideas of relevant interest groups; and
•€€€€€€ the structures and experiences of other countries, especially those with comparable federal systems.
The Committee do further advise that
1. pursuant to section 56 of the Judges Act, the Honourable Horace Krever be authorized to act as a Commissioner on the inquiry;
2. the Commissioner be authorized to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and in such places in Canada as he may decide;
3. the Commissioner be authorized to rent such space and facilities as may be required for the purposes of the inquiry, in accordance with Treasury Board policies;
4. the Commissioner be authorized to engage the services of such experts and other persons as are referred to in section 11 of the Inquiries Act at such rates of remuneration and reimbursement as may be approved by the Treasury Board;
5. the Commissioner be directed to advise the Governor in Council by November 30, 1993 as to whether, in the opinion of the Commissioner, it is necessary in order to achieve the objectives of the inquiry to provide assistance with respect to the intervenor costs of any of the parties that may appear before the Inquiry, the extent of assistance where such assistance would, in the opinion of the Commissioner, be in the public interest, bearing in mind the fiscal restraints programme of the Government, and how such funding should be administered;
6. The Commissioner be directed to submit an interim report in both official languages to the Governor in Council no later than May 31, 1994 on the safety of the blood system, with appropriate recommendations on actions which might be taken to address any current shortcomings;
7. the Commissioner be directed to submit a final report in both official languages to the Governor in Council no later than September 30, 1994 with recommendations on an efficient and effective blood system in Canada for the future including:
•€€€€€€€€ its managerial, financial, and legal principles as well as the medical and scientific aspects;
•€€€€€€€€ the appropriate roles and responsibilities of the provincial/territorial and federal governments, the Canadian Red Cross Society, and other relevant organizations;
•€€€€€€€€ the contractual and other relationship which should exist amongst the governments and organizations involved in the system;
•€€€€€€€€ resource implications, including current allocations;
•€€€€€€€€ powers that are appropriate to recommendations concerning responsibilities and authorities; and
•€€€€€€€€ actions required to implement these recommendations; and
8. the Commissioner be directed to file the papers and records of the inquiry with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.
On October 27, 1993, Mr. Justice Krever received his commission “to be a Commissioner under the Inquiries Act, on the safety of the blood system in Canada”.
On December 10 and 15, 1993, and April 6, 1994, the governments of Prince Edward Island, Ontario and Saskatchewan in turn followed suit and assigned a similar mandate to Mr. Justice Krever. I would note in passing two of the recitals set out in the Prince Edward Island Order in Council:
AND WHEREAS concerns have been expressed that some non-governmental agencies or third parties may attempt to limit the scope of the inquiry or impede its investigation by challenging the jurisdiction of a federally created inquiry to review and report on matters falling within provincial jurisdiction.
AND WHEREAS the possible frustration of the objectives of the Inquiry is contrary to [the] public interest of this Province. [A.B., Vol. 35, at p. 6942.]
The Commission held public hearings throughout Canada between November 22, 1993, and December 21, 1995. An interim report was released on February 24, 1995, pursuant to section 6 of the terms of reference. The final report for which section 7 provides is being prepared. The Commissioner’s mandate has been extended to April 30, 1997.
On October 26, 1995, Commission counsel delivered a memorandum to all parties inviting them to inform the Commission, by November 10, 1995, at the latest, of the detailed findings of misconduct that they intended to urge on the Commission in respect of other persons, “to be considered for inclusion in any notices that may be issued by the Commissioner”. It was then agreed that the submissions received by the Commission would be read only by Commission counsel, would not be disclosed to the other parties or to the persons against whom it was proposed that findings of misconduct be made and would remain confidential unless the persons who made the submissions made them public at a subsequent hearing of the Commission.
On December 21, 1995, which was the final day on which hearings were to be held, Commission counsel delivered forty-five notices under section 13 of the Inquiries Act naming ninety-five individuals, corporations or governments.
The notices read as follows:
TAKE NOTIC that the Commissioner may make the following findings that may amount to misconduct[[2]] within the meaning of the Inquiries Act ….
…
AND TAKE NOTICE that you are entitled to be heard in person or through counsel to address these potential findings ….
Depending on the case, the notice contained from one to one hundred allegations of misconduct.
It would be useful to reproduce the relevant provisions of the Act at this point:
PART I
PUBLIC INQUIRIES
2. The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.
…
PART II
DEPARTMENTAL INVESTIGATIONS
6. The minister presiding over any department of the Public Service may appoint, under the authority of the Governor in Council, a commissioner or commissioners to investigate and report on the state and management of the business, or any part of the business, of the department, either in the inside or outside service thereof, and the conduct of any person in that service, so far as the same relates to the official duties of the person.
…
PART III
GENERAL
…
12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.
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.
A number of those who had received the notices then brought applications for judicial review. They argued, first, that the Commissioner did not have the power to state the conclusions of law in relation to their civil or criminal liability that were, in their view, set out in the impugned notices. Second, they argued that if the Commissioner had such power, he was precluded from exercising it by virtue of the assurances he had given to the effect that he would not exercise it, and on the basis of which the parties had agreed to a procedure for the conduct of the inquiry to which they would not otherwise have agreed. Third, they argued that delivering the notices at the very end of the hearings violated the rules of procedural fairness. The Red Cross also contended that Commission counsel should not participate in the preparation of the final report since they had assisted in preparing the notices and had thereby taken a position against the appellants, and they had had knowledge of confidential submissions that were not brought to the attention of all the parties and persons concerned.
On June 27, 1996, Mr. Justice Richard dismissed the applications for judicial review.[3] Essentially, he found that the Commissioner had jurisdiction to send the notices; that the challenge was premature, since the applicants had an opportunity to respond to the allegations of misconduct and could, if necessary, seek to have the findings made in the final report set aside; and that the applicants had been accorded all procedural safeguards during the hearings. He also concluded that it was premature to rule on the question of the participation of Commission counsel in the preparation of the final report.
Twelve of the individual applicants, as well as the Canadian Red Cross Society (Red Cross), Connaught Laboratories Limited (Connaught), Bayer Inc. (Bayer) and Baxter Corporation (Baxter), appealed the order made by Mr. Justice Richard. For reasons having to do with the Federal Court Rules [C.R.C., c. 663], and specifically subsection 1203(3) [as am. by SOR/79-57, s. 20], the first to file their notices of appeal (the Red Cross and eleven of its employees or directors, collectively referred to as the Red Cross) alone have standing as appellants; the others—Connaught, Bayer, Baxter and Craig A. Anhorn (Anhorn) (a former Red Cross employee who chose to act independently)”are deemed to have filed a cross-appeal. For the purposes of these reasons, I shall consider them collectively as the appellants; this does not mean that I will be unable to consider their individual situations or specific arguments when the time comes.
On the appeal, the appellants presented virtually the same arguments as were made before Mr. Justice Richard.
It should be noted at the outset that the appellants have not attacked the legality or validity of either the Inquiries Act or the Order in Council establishing the terms of the mandate. Accordingly, I take it to be common ground that the objectives adopted, first, by the Governor in Council, and second, by the Commissioner, are valid and are connected “with the good government of Canada or the conduct of any part of the public business thereof” within the meaning of section 2 of the Act.
It must also be noted that the appellants are not seeking to put an end to the inquiry or to prevent the Commissioner from releasing his final report when the time comes. It is not the power of the Commissioner to deliver the notices that they are challenging, but rather his power to deliver notices that were worded and given in the manner adopted by the Commissioner in this instance. The Commissioner’s power to find misconduct on the part of a person in his final report, without determining civil or criminal liability, is not questioned, provided, of course, that the person received reasonable notice.
It is also important to point out that this appeal relates to the powers of a commissioner appointed under Part I of the Act. My analysis would perhaps be different in the context of a departmental inquiry made under Part II with respect to the conduct of a public official.
Lastly, before getting to the heart of the matter, I shall dispose of an argument made by one of the intervenors out of desperation: that the Federal Court does not have jurisdiction to dispose of an application for judicial review of a decision of the Commissioner, by virtue of the fact that he is a judge appointed by the federal government under section 96 of the Constitution Act, 1867[4] and thereby falls outside the definition of “federal board, commission or other tribunal” in subsection 2(1) of the Federal Court Act.[5]
This argument does not stand up under scrutiny. Mr. Krever is not named commissioner in his capacity as a judge; the words “a judge” in the Order in Council are intended to identify, and not to characterize. The argument would have had greater weight if the Order in Council had used the words “as a judge”, or “in his capacity as a judge” (“en tant que juge”, for example, in the French version). This question was decided by the Supreme Court of Canada in Minister of Indian Affairs and Northern Development v. Ranville et al.,[6] in which Mr. Justice Dickson, as he then was, concluded that a judge is not sitting as a judge when he is exercising an “exceptional jurisdiction unrelated to his ordinary capacity”. Certainly Mr. Krever’s capacity as a commissioner bears no relation to his capacity as a judge.
I. The Commissioner’s terms of reference
A brief comment is needed concerning the Commissioner’s terms of reference under the commission issued to him under Part I of the Act. They refer to “all activities of the blood system in Canada”, and the Commissioner’s mandate is to inquire into “the safety of the blood supply system in Canada”. While this mandate may be unusually broad, it was laid down by the Governor in Council in the wake of the third report of the Sub-Committee on Health Issues of the Standing Committee of the House of Commons on Health and Welfare, Social Affairs, Seniors and the Status of Women. That report, entitled Tragedy and Challenge: Canada’s Blood System and HIV (the Wilbee Report) was made public on May 13, 1993.
The Sub-Committee concluded that despite its efforts, it could not answer certain central questions, such as whether antibody testing had been instituted as quickly as it could have been and whether the decision-making process within the blood system in Canada at the time caused or contributed to an unavoidable delay, or whether it was possible that financial considerations played a role, for example, in the availability of funds for the quickest possible transition to Factor VIII, a blood product used primarily by hemophiliacs.
As well, one of the recommendations made in the Wilbee Report was as follows:[7]
RECOMMENDATION NO. 1
The Sub-Committee strongly recommends that a public inquiry be carried out into the Canadian blood system, with the efficiency and safety of the system as the primary focus. The inquiry should also include, but not be limited to, a full examination of the events of the 1980s when the Canadian blood supply became contaminated by the human immunodeficiency virus, the pathogen associated with AIDS.
The federal Minister of Health at the time, Mary Collins (the Minister), then made a commitment to hold an inquiry with a mandate to closely examine how and why so many individuals were infected before systematic screening of all blood donations began in late 1985, to ensure that that never happened again.
This is the background against which Commissioner Krever’s terms of reference were laid down. While his mandate certainly did not focus expressly on the appellants’ conduct—unlike, for example, most commissions that will be discussed in these reasons—it is equally certain that it allowed him to inquire into “events surrounding the contamination of the blood system in Canada in the early 1980s”, and this necessarily implies the conduct of the appellants in relation to those events. As Mr. Justice Beetz stated in Bisaillon v. Keable:[8]
It seems to me that the power to inquire into a specific event incidentally but necessarily includes the power to inquire into the actions of persons involved as well as prior and subsequent events which have some connection with the event in question.
Apparently, the Commissioner decided to devote a significant portion of his inquiry to the conduct of the persons involved in the events of the early 1980s, and it was entirely open to him to interpret his mandate in that manner, having regard to the content of the Wilbee Report and the statements made by the Minister. The courts allow commissioners great latitude in relation to the interpretation of the scope of their mandates, and it is difficult to imagine how a commissioner might make recommendations that would be of any use for the future if he or she were unable to look to the past for guidance. The Commissioner’s power to make recommendations is of course limited to the present (section 6) and the future (section 7), but his power to investigate and report clearly extends to the past.
II. Are the applications for judicial review premature?
The Commissioner contends that the applications for judicial review are premature, in that the notices were merely an administrative act setting out hypothetical findings. Mr. Justice Richard accepted that argument, although I am not certain that this was the reason he dismissed the applications. What he said was:[9]
The central argument of the applicants rests on the analysis that the Commissioner cannot set out in the notices allegations which in their view amount to, are tantamount to, or are equivalent to, findings of criminal or civil liability because they could not properly be made as findings. However, no such findings have been made by the Commissioner; he has only given statutory notice to different persons of the charges of misconduct alleged against them. I am not only being asked to agree with their characterization of the allegations, but also to conclude that the Commissioner may make such findings and that if he did make such findings, they would be beyond his mandate.
As was done in Landreville (Landreville v. The Queen, [1977] 2 F.C. 726 (T.D.)) and Richards,[[10]] the findings of the Commissioner, when released, are subject to individual scrutiny and subject to being set aside if they exceed the mandate of the Commission. All I have before me, at the present time, is the administrative act of the Commissioner, acting through his counsel, of deciding to give statutory notice to affected parties. The notice is given to protect the person’s interests. Any argument against the Commissioner adopting any of the allegations may properly be raised before him since a full opportunity to be heard is afforded to all persons receiving the notices.
I do not agree. It is of little consequence whether the act done by the Commissioner, serving the notice required by the Act, is characterized as “administrative”: it is settled in the modern case law that the so-called “administrative” nature of an act does not place that act beyond the reach of judicial review. Moreover, the fact that the appellants would be able to apply to have the findings made by the Commission set aside when the report was published cannot in itself operate to deprive the appellants of their right to seek, in advance, to prevent the Commissioner from making such findings in his report. One of the objectives of judicial review of the decisions of administrative bodies is to prevent those bodies from doing acts that they do not have the power to do, and one method of doing this that is recognized in the Federal Court Act is to obtain a writ of prohibition (see paragraphs 18(1)(a) [as am. by S.C. 1990, ch. 8, s. 4] and 18.1(3)(b) [as enacted idem, s. 5] of the Act).[11]
It appears to me to be self-evident that if the Commissioner does not have jurisdiction to make the findings in his final report of which his counsel were forewarning the appellants in the notices, he must also have no jurisdiction to give notice that such findings might be made. We must assume that the hypothetical finding set out in a notice is one that a commissioner has the power to make, as an actual finding, in his report. A person who is subject to the authority of an administrative body should not be threatened with an act which that body does not have the power to do, nor should such a person be compelled to attempt to refute, at a continued inquiry, a finding that the administrative body in fact has no power to make. Here, the act of the Commissioner that is being challenged is not pure speculation on his part that might have been gleaned from his conduct or his comments at the inquiry; rather, it is an opinion clearly expressed by representatives of the Commissioner to the effect that such conclusions are possible; that very possibility is formally enunciated in a notice which is required by the Act and which gives the appellants the undeniable right to be heard if they deem it appropriate, and absent which the Commissioner could not allege misconduct against the person in question.
In the most recent edition of Judicial Review of Administrative Action,[12] De Smith, Woolf and Jowell addressed the issue of whether a writ of prohibition is premature in the following terms:
It is still not altogether clear what is the earliest stage at which an application for an order for prohibition may be made. If want of jurisdiction is apparent, prohibition may be applied for at once. If want of jurisdiction is not apparent, the application must wait until the tribunal has actually stepped outside its jurisdiction (as by continuing the hearing after an incorrect determination of a jurisdictional fact) or is undoubtedly about to step outside its jurisdiction (as where it has announced its intention to entertain matters into which it has no power to inquire) …. This is the generally accepted doctrine.
In the instant case, if the Commissioner did not have jurisdiction to make the findings in his report that he set out in the notices, then this is a case in which want of jurisdiction is apparent, or at least one in which the Commissioner “is undoubtedly about to step outside [his] jurisdiction”. It would be intolerable to compel the appellants to wait until the report was made before allowing them to object to it: the harm would then be greater, and probably irreparable.
In principle, therefore, I believe that it is possible to apply to quash a notice that a commissioner decides to give under section 13. In practice, however, I believe that the courts must show extreme restraint before intervening at this stage. The notices in no way state the Commissioner’s opinion; they merely state the possibility that the Commissioner may state the opinion that there has been misconduct. The allegations are not (or should not be) stated in legal language and must not be held under a magnifying glass. When a commissioner decides to include a number of allegations in a single notice, the notice may seem more overwhelming than the final report, in which the findings of misconduct, if such there be, will probably be spread out. Since a notice, by definition, states possible allegations of misconduct, it is inevitable that it will depict the conduct of its recipient unfavourably, and that the recipient will believe that its reputation is tarnished solely because a notice has been sent to it. Thus there are many reasons why the Court should view the notice in context, and not dramatize its implications.
The courts should intervene only when the content of the notice implies an obvious excess of jurisdiction, or discloses a flagrant breach of the rules of natural justice. This need for caution may be easily explained. Commissions of inquiry have become an integral part of our democratic culture. I cannot express this any better than did Mr. Justice Cory in his comments in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy):[13]
As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
…
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover “the truth”. Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
This need for caution is particularly essential in this instance, in that the inquiry in issue is of literally vital importance to all Canadians, it is about to conclude and it had, until the notices were sent, been conducted without serious legal difficulties. As Mr. Justice Finlayson noted in Howe v. Institute of Chartered Accountants of Ontario:[14]
I do not think that we should encourage applications such as these which have the effect of fragmenting and protracting the proceedings except in the clearest of cases.
This respect for the institution that the creation of a commission of inquiry has come to be in Canada must not, however, amount to blind respect. However legitimate and important the objective may be, it does not justify all the means that might be used to achieve it. The search for truth does not excuse the violation of the rights of the individuals being investigated. Individuals whose conduct is being scrutinized at a public inquiry conducted under Part I of the Act are so vulnerable and so powerless that the courts must not allow an inquiry to continue when a commissioner is ostensibly abusing his powers and transforming his role from investigator into inquisitor. The considerable powers of commissioners and the ready, numerous and often tempting opportunities for abuse make it particularly necessary that the courts be vigilant. As Mr. Justice Cory observed:[15]
… [there is] the risk that commissions of inquiry, released from many of the institutional constraints placed upon the various branches of government, are also able to operate free from the safeguards which ordinarily protect individual rights in the face of government action.
Bryan Schwartz correctly noted the dangers that lie in wait for a commissioner:[16]
Again, an interest in promoting a general cause may distort the judgment of even the most judicious person. The danger of distorted perception is especially serious for those who obtain ego-gratification by feeling righteous and being perceived as such. Most public inquiries are about rooting out something every[one] thinks is bad” drug-use in sports, political corruption, bad police behaviour—and a commissioner can be carried away with the general enthusiasm for reform to the point that individual conduct cannot be fairly evaluated.
I shall now consider, from the dual standpoint of restraint and vigilance, whether the appellants’ arguments are more than speculation, and are sufficiently serious that they warrant the intervention of the Court. The appellants are not, of course, asking that the inquiry be halted or that the Commissioner not be permitted to make his final report. However, an order can be made setting aside the notices in the present circumstances, and at the stage that the Commissioner has reached, only if the actions of the Commission, as established by the sending of the notices, are sufficiently troubling that the Court has no choice but to intervene to prevent an injustice being committed in the near future.
III. Power of the Commissioner to make conclusions of law in respect of the appellants’ civil or criminal liability
I shall first examine the appellants’ argument that a commissioner may not find a breach of a duty. I shall then examine their arguments in respect of the findings of liability that, in their opinion, a commissioner may not make. Lastly, I shall apply the principles that I shall identify to the notices in issue.
At the outset, I would note that a public inquiry into a tragedy would be quite pointless if it did not lead to identification of the causes and players for fear of harming reputations and because of the danger that certain findings of fact might be invoked in civil or criminal proceedings. It is almost inevitable that somewhere along the way, or in a final report, such an inquiry will tarnish reputations and raise questions in the public’s mind concerning the responsibility borne by certain individuals. I doubt that it would be possible to meet the need for public inquiries whose aim is to shed light on a particular incident without in some way interfering with the reputations of the individuals involved. And this is precisely why Parliament and the courts have imposed strict limits on such use as anyone might be tempted to make in a civil or criminal trial of evidence obtained or testimony given during an inquiry and of the findings set out in the reports of commissions of inquiry. The system that has been instituted is certainly not perfect, but it is the role of the courts to ensure that it is as perfect as possible.
It must be recalled that the findings made by a commissioner are merely the statement of an opinion formed by the commissioner with respect to the conduct of a person, after an inquiry which does not apply normal legal criteria and at which the rules of evidence and procedure are not so strict as those that apply to a trial between adverse parties. Such an opinion does not, cannot and cannot claim to have the weight, force or effect of a judgment; it cannot be analyzed or interpreted as if it were the product of a traditional trial. A threat to subject a commissioner’s work to systematic legal-style dissection of the findings of fact made by him or her would seriously hinder that work.
(A) Breach of a duty
According to the appellants, a commissioner may not suggest in his or her findings that the fact that someone has done or failed to do something implies that the person has failed to comply with a legal standard of conduct that he or she was bound to observe.
Section 13 of the Act expressly permits a commissioner to make findings of “misconduct” (faute). When we say “misconduct”, we are necessarily saying breach of a standard of conduct. That standard may be moral, legal, scientific, social, political and so on. To contend that a commissioner may not find that a person has breached a duty is to strip section 13 of any meaning, and to all intents and purposes to muzzle a commissioner.
(B) Findings of liability
The appellants argued at length that the Constitution of Canada and the rule of law forbid both the federal government and the provincial governments from giving a commissioner a mandate to make conclusions of law in respect of their civil or criminal liability (hereinafter “findings of liability”). It is not necessary in this instance for me to decide this issue, since the Governor in Council gave no such mandate to the Commissioner and the Commissioner himself has stated that he does not intend to make such findings. I shall therefore take it to be settled, for the purpose of this matter, that the Commissioner has no power to make findings of liability.
How then are we to understand the expression “findings of liability”? The appellants contend that if the allegations of misconduct as formulated by the Commissioner in the notices were to appear in the final report in the form of findings, they would be tantamount to findings of liability which the Commissioner, as he himself has said, has no power to make. What the appellants object to is not disclosure of their names, but the wording of the allegations that might be made against them.
The expression “findings of liability” as used by the appellants is to some extent hallowed by practice and the case law. It refers to the Ontario order in council which instituted the Grange Commission, which was assigned the task of inquiring into the deaths at a children’s hospital (Re Nelles et al. and Grange et al.),[17] which formally prohibited the Commissioner from “expressing any conclusion of law regarding civil or criminal responsibility”. The meaning of this expression was considered by the Ontario Court of Appeal in Nelles, and its analysis was cited by the Supreme Court of Canada in Starr v. Houlden:[18]
A public inquiry is not the means by which investigations are carried out with respect to the commission of particular crimes … Such an inquiry is a coercive procedure and is quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.
…
What is important is that a finding or conclusion stated by the commissioner would be considered by the public as a determination and might well be seriously prejudicial if a person named by the commissioner as responsible for the deaths in the circumstances were to face such accusations in further proceedings. Of equal importance, if no charge is subsequently laid, a person found responsible by the commissioner would have no recourse to clear his or her name ….
Further, it is a reasonable inference that a person intends the natural consequences of his acts and such a finding as that referred to against a nurse in this case would leave nothing further to be said to amount to a conclusion forbidden by the Order in Council.
Thus, according to the appellants, what is important is not so much the precise expression used by a commissioner—it would be much too easy to evade judicial review by playing with words—as the impression that a finding of fact made by the commissioner leaves on the public.
Like the appellants, I acknowledge that the passages from Nelles that were cited in Starr substantiate their argument that the Commissioner may not express his opinion in terms that would give the opinion expressed the weight of a decision or determination of civil or criminal liability in the eyes of the public.
However, the appellants are wrong to try to make a general principle of law out of comments that were not intended to be such, that were made in an entirely unique context and that, if taken literally, would to all intents and purposes paralyse the work of most commissions of inquiry.
I would note at the outset that the comments in question were made in relation to investigations “with respect to the commission of particular crimes”. In Nelles , the only thing missing, for the inquiry to be transformed into a police investigation into a particular crime and for it to become apparent that the person named would then have been viewed by public opinion as the perpetrator of the crime, was the name of the person who allegedly deliberately administered the fatal drug. In Starr, the Order in Council to all intents and purposes reproduced the text of section 121 of the Criminal Code [R.S.C., 1985, c. C-46] and even gave the name of the accused. It is therefore no surprise that in Starr Mr. Justice Lamer, as he then was, cited the comments of the Ontario Court of Appeal in Nelles, since if Commissioner Houlden’s findings had been unfavourable to Ms. Starr they would inevitably have confirmed her guilt in the eyes of the public.
I would also recall that in Starr the question of civil liability did not arise, and that Mr. Justice Lamer was considering not the substance of the ultimate findings of the report, but strictly the constitutional characterization of the purpose of the inquiry. His comments are obiter dicta, at most.
Lastly, I would note that if the comments in Nelles had been adopted as a general principle of law in Starr it would be impossible to reconcile them with a series of decisions of the Supreme Court itself, and with a very recent decision of the Ontario Court of Appeal.
For instance, in O’Hara v. British Columbia,[19] the Supreme Court permitted an inquiry to be held upon the conclusion of which the commissioner was to report on “whether Jacobsen sustained injuries while detained in Police custody and if so, the extent thereof, the person or persons who inflicted them, the reason for so inflicting them and the time and place the injuries were sustained”. In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy),[20] the Supreme Court refused to order the suspension of an inquiry whose purpose it was, inter alia, to inquire into “whether neglect caused or contributed to the explosion”. In Faber v. The Queen,[21] the Supreme Court was not worried about the fact that the Quebec Coroners Act [S.Q. 1966-67, c. 19] allowed the coroner to determine whether there had been “violence”, “negligence” or “culpable conduct of a third person”. In Consortium Developments (Clearwater) Ltd. v. Sarnia (City),[22] the Ontario Court of Appeal permitted a municipal inquiry into “all aspects of the above transactions”, including “the relationships, if any, between the elected and administrative representatives of Clearwater, and the principals and representatives of the Board, MacPump, the Trustee and Consortium at all relevant times”, to be carried on. It is worth noting that, at page 23, Chief Justice McMurtry cited the comments of Mr. Justice Richard in this case.
While none of these decisions examined the actual making of findings by a commissioner, and each was more concerned with the constitutional characterization of the purpose of the inquiry for the purposes of the division of powers, nonetheless it would be surprising if the Supreme Court had authorized the conduct of inquiries leading inevitably, by the very terms of the orders in council, to findings of fact that would carry the weight of a determination of responsibility in the public’s eyes, if it had in fact been of the opinion that such findings amounted to prohibited findings of liability. The Court in effect characterized these inquiries as something other than criminal investigations or criminal trials. By the same reasoning one can conclude that the findings of such an inquiry are not findings of criminal liability. A fortiori they are not findings of civil liability. It is of interest that the Ontario Court of Appeal which decided Nelles appears in the Consortium[23] case to have come to a similar view of such inquiries after reviewing the more recent Supreme Court decisions.
If the test proposed in Nelles were to be set up as a principle of law, the result would be to paralyse commissions of inquiry, the merits of which the Supreme Court itself has extolled. If a commissioner has jurisdiction to report on misconduct on the part of an individual, it is inevitable, as I pointed out earlier, that he or she will be making a value judgment as to that person’s conduct; it is probable that such a finding of misconduct will in some way or another harm that person’s reputation; and it is always possible that someone, somewhere, will interpret a commissioner’s finding, even one that is worded with utmost care, as a determination of responsibility.
The appellants conceded at the hearing that the “public” referred to by the Ontario Court of Appeal is not just any public: it is a public that is reasonably well informed about the legal components of the concept of civil or criminal liability. Here again, unless a commissioner’s findings are written in terms whose legal meaning is inescapable, when will it be possible to state with certainty that the combination or accumulation or natural extension of the findings of fact indeed lead to a conclusion of law?
In Nelles,[24] the Ontario Court of Appeal itself acknowledged that the test it was proposing was one of “extreme difficulty, at times approaching the impossible” and that it would lead to an “impasse”. Chief Justice Daigle of the New Brunswick Court of Queen’s Bench recently encountered the same difficulty in Richards v. New Brunswick (Commission of Inquiry into the Kingsclear Youth Training Centre),[25] when he attempted to apply the test in Nelles, which he described as follows:
It seems logical to me to include, as I see the rationale in Nelles, in the definition of “conclusion of law regarding civil or criminal responsibility” findings of fact which concern the conduct of named persons and implicate all the elements of a crime, a tort or some other legal basis for civil responsibility. It appears necessary to give such a broad definition to the expression “conclusion of law” to ensure fair protection of the individual rights of persons that the prohibition is designed to protect in the coercive and inquisitional process of public inquiries. This therefore mandates the consideration of the legal effect of findings of fact as well as the legal inferences to be drawn from those facts, even if there is no conclusion of guilt as such expressed in the findings or conclusions made by a commissioner. This should not extend, however, to mere speculation about legal responsibility on the basis of findings or conclusions in a report.
Chief Justice Daigle then set about dissecting the findings of the Commissioner having regard to the specific requirements of the Criminal Code and the common law, and this led him to conclude as follows:[26]
Having in mind the definition of civil negligence and its four constituent parts of duty, breach of duty, injury and causation, I conclude that the finding that “officers and employees responsible for the care and safety of the boys of the Training School failed to take any realistically appropriate action and thereby failed … the boys …” constitute an expression of a conclusion of law regarding the civil responsibility of those employees for their action or inaction in the discharge of their duty….
With respect, I would say that this confirms the danger of setting up the test stated in Nelles as a principle of general application, and clearly illustrates the impasse to which a literal application of that principle would inevitably lead. Paradoxically, the very terms of the mandate given to Commissioner Grange in Nelles, which the Supreme Court did not question in Starr, sabotages the appellants’ position. That mandate permitted the Commissioner, inter alia:[27]
3) to inquire into and report on and make any recommendations with respect to how and by what means children who died … came to their deaths;
4) to inquire into, determine and report on the circumstances surrounding the investigation, institution, and prosecution of charges arising out of the deaths of the above mentioned four infants;
If a commissioner’s powers were as limited as the appellants contend, not only would Commissioner Grange not have had the power to name names in Nelles; to all intents and purposes, he would have been incapable of reporting on his inquiry.
I therefore conclude that the test applied in Nelles and approved in Starr is not applicable to public inquiries that are not concerned with the commission of particular crimes. There is no similarity between the public reaction to a report concerning a particular crime and the public reaction to a report that is as general in scope as the one that Commissioner Krever is preparing to publish.
That does not mean that the Commissioner can say whatever he wants, however he wants, as his counsel suggested at the hearing. Certainly he cannot state an opinion that one or another of the appellants is criminally or civilly liable for its acts or omissions. Certainly, too, he cannot get around this prohibition by using terms that, while less precise, would to all intents and purposes suggest that this essentially is his opinion. The more a commissioner uses terms that have hallowed legal meaning, the more he will expose himself to having his findings viewed by the courts, in the exercise of their supervisory power, as determinations of responsibility.
(C) Application of these principles
What is the situation in this case?
The impugned notices are not all worded in the same manner. I shall reproduce passages from some of them below in order to clarify the issues.
The notices served on the Red Cross,[28] Dr. Davey,[29] Dr. Perrault[30] and Mr. Weber[31] are identical, to all intents and purposes. They take up about 24 pages and contain some 70 allegations, which in turn contain about a hundred sub-allegations. Each notice starts off, in paragraph 1, with a general allegation, which reads as follows:
… failed adequately to oversee, direct and provide resources for the operation of the Blood Transfusion Service (BTS) and Blood Donor Recruitment (BDR), at both the national and local level, and as a result contributed to and are responsible for the failures set out below; …. [Emphasis added.]
There follow a series of specific allegations, a few of which are illustrated below:
Red Cross
5. The CRC failed to implement in a timely manner, during January 13—March 10, 1983, any national donor-screening measures to reduce the risk of transfusion-associated AIDS, this failure causing unnecessary cases of transfusion-associated HIV infection and AIDS to occur . [Emphasis added.] [A.B., Vol. 10, at p. 1714.]
9. In 1984 and 1985, the CRC failed to expeditiously implement HTLV-111 screening of blood samples and this delay directly resulted in cases of transfusion-associated HIV and AIDS …. [Emphasis added.] [A.B., Vol. 10, at p. 1718.]
Much less detailed notices were served on the other appellant doctors who worked for the Red Cross. Those notices each contained from one to four allegations, including the following:
[X …], despite knowing that male donors who had sexual relations with men were at high risk for AIDS, failed throughout 1984-1985 to stop the collection of blood donations at clinics in [an area] that was known to be located within the gay community …. [Emphasis added.] [A.B., Vol. 10, at p. 1738.]
[X …], despite knowing that non-heat-treated factor concentrates carried a greater risk of transmitting HIV and hepatitis, and despite having a substantial local inventory of heat-treated product by June 1985, distributed as much of the Centre’s non-heat-treated product as possible prior to the general introduction of heat-treated product on July 1, 1995 as part of a planned depletion of the non-heattreated inventory. [Emphasis added.] [A.B., Vol. 10, at p. 1762.]
The notice sent to Mr. Anhorn, the former operations manager in the blood products section of the Red Cross, contains 17 allegations, the first of which reads as follows:
1. … participated in and was partially responsible for the failures set out below. [Emphasis added.] [A.B., Vol. 12, at p. 2136.]
The sixteen other allegations are identical to those found between allegation 25 and allegation 42 in the notice given to the Red Cross.
The notice delivered to Connaught contains 10 allegations, including the following:
7. … in 1983 knowingly and wrongly advised the CRC that the factor concentrates being made from U.S. plasma and being supplied to the CRC by [Connaught] were not made from plasma collected in places of high AIDS prevalence. [A.B., Vol. 19, at p. 3550.]
The notice served on Bayer contains 4 allegations, including the following:
3. Between 1982 and 1985, Bayer contributed to the failure to warn Canadian hemophiliacs of the risk of acquiring AIDS from the use of factor concentrates by acceding to requests of the Canadian Red Cross Society not to include warnings on products made by Bayer from Canadian-source plasma. [A.B., Vol. 13, at p. 2338.]
Lastly, the notice served on Baxter contained only one allegation:
1. After becoming aware in 1982 and thereafter of the possibility or likelihood that its factor concentrates transmitted the causative agent of AIDS, Baxter failed to take adequate steps to notify consumers and physicians of the risks associated with the use of its products and to advise that they consider alternative therapies. [A.B., Vol. 21, at p. 3882.]
I acknowledge that the choice of certain expressions (”responsible for”, for one, in the context of failures that allegedly contributed to the death of a number of people) and the imputation of intent based on mere knowledge of a fact (”despite knowing”, for example), on their face, give the worrisome impression of being allegations of liability, indicating potential findings of liability.
However, it seems to me to be premature to assume the dramatic consequences that the appellants see therein.
The Commissioner may have sinned by excess of zeal in forging ahead with such detailed notices and prefacing the series of allegations, in the notices to the Red Cross, Dr. Davey, Dr. Perrault, Mr. Weber and Mr. Anhorn, with an introductory paragraph which is not truly appropriate and which contains the unfortunate expression “responsible for”. Certainly, when presented in that manner, one after another in a single document, the allegations appear more overwhelming than they would be if they were to be adopted, once they were spread out in the final report. Appearances may be deceiving; I do not intend to quash any notice on the basis of mere appearances.
The notices delivered to Connaught, Baxter and Bayer are less troubling. These appellants are asking that, based on the words chosen by the Commissioner and interpreting those words from a legal perspective, we impute to the Commissioner an intent to hold them responsible for the consequences of their respective failures. At this stage, I am not prepared to quash any notices on the strength of such a strained reading.
I am certain that the Commissioner will understand that he would be venturing onto dangerous ground if, in his final report, he were to persist in using some of the terms he used in the notices and in adopting turns of phrase that bear too close a resemblance to the expression of a conclusion of law. Subject to this caveat, I find that the Commissioner has not made allegations of misconduct in terms that amount to conclusions of law in respect of the appellants’ civil or criminal liability. The attack mounted by the appellants on the basis of the actual content of the notices must be dismissed.
IV. The assurances given by the Commissioner
The appellants contend that the Commissioner limited his jurisdiction by giving them assurances that he would make no findings as to their civil or criminal liability; they assert that had they known the Commissioner’s true intention, they would not have approved the rules of procedure that the Commissioner established at the commencement of the inquiry.
The comments which the appellants now raise against the Commissioner are as follows:[32]
November 22, 1993:
It is not and it will not be a witch hunt. It is not concerned with criminal or civil liability. I shall make findings of fact. It will be for others, not for the commission, to decide what actions if any are warranted by those findings.
I shall not make recommendations about prosecution or civil liability. I shall not permit the hearings to be used for ulterior purposes, such as a preliminary inquiry of Examination for Discovery, or in aid of existing or future criminal or civil litigation.
As I interpret the terms of reference, the focus of the inquiry is to determine whether Canada’s blood supply is as safe as it could be and whether the blood system is sound enough that no future tragedy will occur. For those purposes it is essential to determine what caused or contributed to the contamination of the blood system in Canada in the early 1980’s. We intend to get to the bottom of that issue, let there be no mistake about that.
On February 14, 1994:
I have said and I repeat that criminal or civil proceedings are not my concern. No one is on trial here. This is an inquiry into facts that will form the foundation of important policy recommendations.
On October 17, 1994:
I said at the very outset of this Inquiry that the reason for hearing evidence is not for the purpose of advancing anybody’s interest in any kind of litigation, civil or criminal.
On November 24, 1995:
I want to repeat what I have said before on more than one occasion that this is not a trial. No one, no person, or organization is on trial. This is not an adversary proceeding in which a party makes allegations against another party. It is an inquiry, inquisitional in nature. Moreover it is my inquiry, not my counsel’s inquiry.
I have no intention of making findings of liability or fault whether civil or criminal.
It is apparent, from my analysis of the terms of the mandate and of the power of the Commissioner to make findings of responsibility, that the appellants have misunderstood the substance of what the Commissioner said. He in no way limited his jurisdiction; quite the contrary, he described it as it was. The appellants were aware from the outset that the Commissioner would be getting to the bottom of things, but would refrain from determining civil or criminal liability on the part of anyone. The rules of procedure were laid down on the basis of this dual objective, they were followed throughout the Inquiry with no objection from the parties and the parties are ill-advised to object to them today. The only objection they may make that deserves the Court’s attention at this stage of the Inquiry is the one relating to the circumstances in which the notices were delivered. It is this complaint that I shall now examine.
V. Procedural fairness
Mr. Justice Richard did a particularly careful analysis of the procedures adopted by the Commissioner and the efforts he made throughout the hearings to meet the requirements of procedural fairness. These are general findings of fact that I have no hesitation in approving. Essentially, what the appellants are challenging is the Commissioner’s decision to wait until the end of the hearings before giving the notices required by section 13. The appellants Baxter and Anhorn made additional arguments to which I shall return.
The Inquiries Act does not impose any code of procedure. Section 2 of the terms of reference in fact authorizes the Commissioner “to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry”. It is common ground that while a commissioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act. The concept of procedural fairness is a shifting one; it changes depending on the type of inquiry and varies with the mandate of the commissioner and the nature of the rights that the inquiry might affect. A public inquiry under the Inquiries Act is not, I would point out, a trial, the report of a commissioner is not a judgment and his recommendations may not be enforced. Thus a commissioner has broad latitude and discretion, and the courts will question his procedural choices only in exceptional circumstances.
(A) Tardiness of the notices
Section 13 requires “reasonable notice” (“préavis suffisant” in the French version). The words “reasonable” and “suffisant” include a content element and a time element. A person who receives a notice must have a good idea of the misconduct that is imputed to him or her and must have sufficient time, before the report is made, to prepare and present an adequate response.
The content of the notice may vary depending on when it is given: a notice given before the hearings commence will likely be less detailed than one given after the hearings have concluded.
Section 13 does not indicate the point at which the notice must be given, other than to say that “no report shall be made against any person” before it is given. Section 12, which recognizes the right to counsel if a “charge”[33] is made “in the course of an investigation”, suggests that the giving of a notice automatically entitles a person to be represented by counsel, but offers no further assistance on the question of when the notice must be sent, other than that it must be “in the course of an investigation”. The appellants are not arguing section 12 in this case; they were all represented by counsel at the time they testified.
Accordingly, all that the Act tells us is that notice must be given “in the course of an investigation” and before the report is made. Even the word “investigation” is not defined and, in my view, it cannot be limited to the hearings proper; thus the notice might be given at the pre-inquiry stage, during the hearings, at the end of the hearings, or after the hearings have been formally concluded, provided, of course, that the person concerned had an opportunity in each case to be heard before the Commissioner made his report.
As well, there is no requirement anywhere that the notice be given to a person before he or she testifies. It would have been surprising were this otherwise, since there may surely be instances in which an allegation of misconduct acquires substance only after testimony is given. Nor does the Act impose a duty on a commissioner to give notice as soon as he or she foresees the possibility, and a fortiori becomes certain, of an allegation of misconduct. And nor does it impose a duty on him or her to inform the parties and potential witnesses, or anyone else, in advance, at the commencement of the inquiry, of the possibility that a notice may be given: the Act gives a commissioner the power to give notices, and whenever a public inquiry is conducted under the Act any person whose conduct may be connected, whether closely or otherwise, to the investigation must be aware that an allegation of misconduct would be made against him or her.
In short, the Commissioner enjoys considerable latitude, and is thereby permitted to use the method best suited to the needs of his inquiry. I see no objection in principle to a commissioner waiting until the end of the hearings, when he or she has all the information that is required, to give notices, rather than taking a day to day approach to it, with the uncertainty and inconvenience that this might involve.
As well, like Mr. Justice Richard, I do not see how the appellants, with the exception of Anhorn, for reasons I shall state in a moment, can object to the method used by the Commissioner in this case. The Commissioner had never told the parties or the witnesses that he had no intention of giving notices, and as I noted earlier, he did not need to state that he would do so if the right circumstances arose. Section 13 had been discussed at the general meeting of the lawyers in November 1993, after which the Commission’s rules of procedure were laid down by the Commissioner, with the agreement of the parties. I do not hesitate to note that greater transparency on the part of Commission counsel would have assisted in dispelling any confusion, but there is nothing there that would undermine the legality of the Inquiry. In particular, it ill behooves the Red Cross to say that it was taken by surprise, when it had received a notice at the stage of publication of the interim report.
The appellants were given an opportunity to respond to the notices and to adduce additional evidence, if necessary. The time they were given for doing this was a little short, I would agree, but the Commissioner was flexible and I am not in a position to say that it was impossible for the appellants to respond adequately within the time allowed or within a longer time frame, which they did not really make any attempt to obtain.
The appellants all declined to respond to the notices. The justification they gave for refusing was that they were convinced that the notices had been given illegally and that responding to them would amount to recognizing the Commissioner’s jurisdiction to give them. I cannot sanction that sort of attitude. If the appellants chose not to respond, simply on the assumption that this Court would make a decision favourable to them, they have no one to blame but themselves.
(B) The cases of Baxter and Anhorn
The appellants Baxter and Anhorn raised additional arguments relating to the fact that, unlike the other appellants, they were not parties to the Inquiry and were not represented by counsel throughout the hearings. They claim to have a sort of special status: in their case, the notices should have been given to them earlier and should have set out, in addition to the allegations of misconduct, the evidence on which the allegations were based.
(a) The case of Baxter
In the early 1980s, Baxter was involved in the production of Factor VIII, a heat-treated blood product used mainly by hemophiliacs to replace untreated coagulation products. The delay experienced in switching from untreated to heat-treated products was one of the questions that the Wilbee Report had been unable to answer and it was certain that the Commission would be trying to answer it. Baxter’s name appeared in the Wilbee Report and Baxter knew or ought to have known that its conduct would be examined in the course of the Inquiry, even though it had played a lesser role during the 1980s than had Connaught and Bayer. Baxter deliberately chose not to seek standing as a participant; it believed that its conduct would be of little interest to the Commission. It took a risk, and this was a calculated risk. Today, it must bear the consequences. I do not see why, in the circumstances, the Commissioner should be required to adopt a special procedure in respect of Baxter, which would moreover place Baxter at an advantage in relation to the other individuals or corporations which had deemed it advisable to obtain participant standing.
I am not saying that the Commissioner may do as he likes in relation to a person who had not obtained standing. I am saying that he must act in relation to that person, as he does in relation to the participants, having regard to all of the circumstances. For instance, when the evidence presented at the Inquiry establishes that a person who is not participating in it is at risk of being put on the hot seat, or when the Commissioner’s concerns take a different tack and focus on new targets, the Commissioner, in all fairness to the persons concerned, would perhaps be well advised to warn them as promptly as possible. There is, I repeat, no general rule. In the case of Baxter, there was nothing that obliged the Commissioner to do anything other than what he did.
On the question of identifying the relevant evidence, and this applies to Anhorn as well, no request for assistance was made to Commission counsel and the evidence indicates that Commission counsel were prepared to assist anyone who requested such assistance. It was therefore not practically impossible to prepare an adequate response.
I should also, before considering the case of Anhorn, immediately reject the procedural argument made by Baxter, which was that there was no evidence in the record on which the Commissioner could rely to make an allegation of possible misconduct against it. The Commission’s record is not before us, and we are quite simply not in a position to evaluate the merits of this argument. Had the record been before us, we would have been extremely reluctant to allow ourselves to be persuaded by such an argument at the stage of the delivery of the notice, which is where we now are. If, as Baxter contends, there is no sufficient evidence in its regard, the Commission will surely refrain from making a finding of misconduct against it in the final report.
(b) The case of Anhorn
The case of Anhorn is of greater concern. Anhorn was operations manager in the blood products section of the Red Cross from 1982 to 1986, but left the Red Cross in July 1986 and severed all association with it. He has been employed by Connaught since July 1986. He did not consider it necessary to ask the Commission for standing and no counsel was retained to represent him at the hearings.
In 1992, even before the Commission was established, his employer Connaught had suggested that he consult a lawyer, Mr. Garbig, to advise him when there was a danger, for the purposes of his work with Connaught, that he might breach the duty of confidentiality to which he was bound by the contract he entered into with the Red Cross, his former employer, during his employment there. Mr. Garbig’s fees were paid by Connaught.
In the fall of 1994, Anhorn offered to assist the Commission. In the spring of 1995, he attended for a few days during part of the examination of Drs. Perrault and Davey, at the point when they were explaining his role in purchasing blood products for the Red Cross during the 1980s.
In September 1995, he was summoned to appear before the Commission as a witness. It was at that point that Mr. Garbig, who had until then not participated in the proceedings of the Commission, became his counsel at the Commission. Mr. Garbig’s fees for his services to Anhorn at the Commission were paid by Connaught.
According to Anhorn, no one ever told him, and he himself never thought, whether before, during or after being examined, that the Commissioner was contemplating the possibility of making findings of misconduct against him or against anyone else. He was convinced that the Commissioner’s only concerns related to the safety of the blood supply in the future. Accordingly, it was on his instructions that, when he was examined, his lawyer asked him no questions and entered no documents. It is plain from the evidence that Commission counsel knew, when they met with Anhorn in early September 1995 and when they formally questioned him about seven days later, that his conduct was likely to lead to allegations of misconduct being made against him.
Because Anhorn was not a party to the Inquiry, he did not receive the memorandum sent to the parties by the Commission on October 26, 1995. He was therefore extremely surprised, on December 22, 1995, when his lawyer was served with the notice which, moreover, gave him only until January 10, 1996, to inform the Commissioner of his intention to respond in person or by counsel.
The content of the notice itself is most revealing, knowing as we do that Anhorn was not represented at the hearings other than when he gave his own testimony. The notice sets out a general allegation in which he is said to be partially responsible for the failures set out thereafter, and sixteen specific allegations in which his name does not appear anywhere and which are, in reality, a carbon copy of the allegations made against the Red Cross, Drs. Davey and Perrault and Mr. Weber in the notices given to them. It is clear to me that Commission counsel had put him in the same basket as the parties or witnesses who were represented by Red Cross counsel and did not consider it necessary to individualize the notice they gave him any further. The work done by Commission counsel was so haphazard, as it related to Anhorn, that at least two of the allegations—allegations 15 and 17—refer to incidents that allegedly occurred at the Red Cross months after he ceased to be employed there.
Since Mr. Justice Richard did not consider Anhorn’s case specifically, it falls to me to consider whether, in the circumstances, procedural fairness was not observed.
The case of Anhorn is nothing if not unique. He has, in a way, been caught between his former employer, the Red Cross, and his present employer, Connaught, which had participant standing before the Commission. Counsel for the Red Cross did not represent him as a former employee, since he was now employed by Connaught, nor did counsel for Connaught represent him, since at the time that is the subject of the Inquiry he was a Red Cross employee.
Commission counsel quickly realized, by the spring of 1995 at the latest, when Drs. Davey and Perrault were examined, that Anhorn was a target. They also knew that he was not participating in the Inquiry and that Red Cross counsel were not representing him. It is clear from the evidence that Commission counsel did not forewarn him as to what the subject of his testimony would really be.
In the circumstances, I find it unacceptable that Commission counsel did not inform Anhorn in the spring of 1995 of the possibility that he would be summoned as an important witness, that they did not caution him of the dangers lying in wait for him when he was examined, that they left him out of the process of the invitations sent to the parties on October 26, 1995, that they waited until the very end of the hearings to give him a notice containing allegations that were so numerous, so important and so little identified with his own conduct and that were, in certain cases, false on their face, and that they gave him so little time to react.
In these circumstances, I cannot do otherwise than quash the notice given to Anhorn. We have here the type of situation that I described earlier, in which a commissioner must, in all fairness to a person who is targeted, offer the person an opportunity to participate in the proceedings of the Commission and play fair with him.
VI. Participation of Commission counsel in the preparation of the final report
The Red Cross is the only one of the appellants that is asking the Court to prohibit Commission counsel from participating in the preparation of the final report. It is no longer arguing in this Court that Commission counsel exhibited bias during the Inquiry. Rather, it is arguing, first, that counsel for the Commission contributed to the preparation of the notices and thereby took a position against the appellants, and second, that they had access to confidential submissions made by the parties in response to the invitation sent to them on October 26, 1995, that some of that information was not brought to the attention of the Commissioner or of the appellants (which was confirmed by Commissioner counsel at the hearing) and that accordingly there is a risk that the Commissioner may base certain findings in his report on evidence that is not in the record.
With respect to the first argument, the notices state no finding by the Commissioner or his counsel and cannot be said, at this stage, to disclose any bias whatever on their part. With respect to the second argument, I am of the view, like Mr. Justice Richard, that this argument is premature in that the Commissioner has not, to our knowledge, made a final decision as to the role, if any, that he intends to assign to his counsel in the preparation of the final report.
We must be careful not to impose too strict standards on a commissioner who is conducting a public inquiry of the nature and scope of this Inquiry, in terms of the role he may assign to his counsel once the actual hearings have concluded. A final report is not a decision and the case law that may have developed in relation to decisions made by administrative tribunals, particularly in disciplinary matters, does not apply.[34] We must be realistic and pragmatic.[35] The Commissioner will not likely be able to write all of his report himself, or verify the accuracy of the facts set out in it on his own, any more than he could reasonably have asked all the questions during the examination of witnesses or sift through the hundreds of documents that were introduced. What is important is that the findings he makes in his report be his own. If, in order to make those findings, he considers it advisable to seek the assistance of one or more of his counsel, including those who conducted the examination of witnesses, in relation to questions of fact, evidence and law, he must have broad latitude to do so.
This being said, it is one thing to seek the assistance of counsel who participated in the examination of witnesses and it is another to seek the assistance of counsel who have reviewed confidential submissions that were not disclosed to the appellants. The method adopted at the very end of the hearings for inviting submissions from the parties was particularly dangerous in that it opened the door to the possibility that a person in respect of whom unfavourable findings of fact would be made in the final report might not have had knowledge of all of the evidence relating to that person. Since the harm has been done, I am satisfied that the Commissioner will not seek advice from those of his counsel who know things of which he and the appellants do not have knowledge.
Disposition
I am consequently of the opinion that the appeal by the Canadian Red Cross Society, George Weber, Dr. Roger A. Perrault, Dr. Martin G. Davey, Dr. Terry Stout, Dr. Joseph Ernest Côme Rousseau, Dr. Noel Adams Buskard, Dr. Raymond M. Guévin, Dr. John Sinclair MacKay, Dr. Max Gorelick, Dr. Roslyn Herst and Dr. Andrew Kaegi should be dismissed; and that the cross-appeals by Connaught Laboratories Limited, Bayer Inc. and Baxter Corporation should be dismissed.
With respect to the cross-appeal by Craig A. Anhorn, I am of the opinion that it should be allowed, that the notice given to him by Commissioner Krever on December 21, 1995 under section 13 of the Inquiries Act should accordingly be quashed, and that the Commissioner should be prohibited from making findings of misconduct against Craig A. Anhorn in his final report.
No costs will be awarded. The appellants and the respondent Commissioner agreed that no costs would be claimed, and the intervenors, who did claim costs, have not satisfied me that their participation in the appeal was so essential and decisive that the Court should deviate from its usual policy of not awarding costs to intervenors.
Strayer J.A.: I agree.
MacGuigan J.A.: I agree.
[1] R.S.C., 1985, c. I-11.
[2] The word “inconduite” (in the French version) is incorrect; the word “faute” has been used in s. 13 since the 1985 revision of the federal statutes, and it was preceded by the expression “mauvaise conduite”. I would also note that the terms in which ss. 12 and 13 are framed bear more relation to departmental inquiries conducted under Part II than to public inquiries conducted under Part I. It would certainly appear that this Act is badly in need of revision.
[3] Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 3 F.C. 259(T.D.).
[4] 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].
[5] R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 1).
2. (1) In this Act,
…
“federal board, commission or other tribunal” means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867. [Emphasis added.]
[6] [1982] 2 S.C.R. 518, at p. 526.
[7] Wilbee Report, at p. 25.
[8] [1983] 2 S.C.R. 60, at p. 80.
[9] Supra, note 3, at pp. 303-304.
[10] Richards v. New Brunswick (Commission of Inquiry into the Kingsclear Youth Training Centre), [1996] N.B.J. No. 272 (Q.B.) (QL).
[11] See: Gage v. Ontario (Attorney-General) (1992), 90 D.L.R. (4th) 537 (Ont. Div. Ct.); Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.) (1989), 100 N.B.R. (2d) 181 (C.A.); Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Law Society of Upper Canada v. Canada (Attorney General) (1996), 28 O.R. (3d) 460 (Gen. Div.).
[12] 5th ed., London: Sweet & Maxwell, 1995, at pp. 703-704.
[13] [1995] 2 S.C.R. 97, at pp. 137-138.
[14] (1994), 19 O.R. (3d) 483 (C.A.), at p. 491. See also Braaten v. Sargent and Attorney-General for British Columbia (1967), 61 D.L.R. (2d) 678 (B.C.S.C.), at pp. 692-693.
[15] Supra, note 13, at pp. 139-140.
[16] Schwartz, Bryan, “Public Inquiries”, in 1990 Isaac Pitblado Lectures, Public Interest v. Private Rights: Striking the Balance in Administrative Law, at pp. 264-265.
[17] (1984), 46 O.R. (2d) 210 (C.A.).
[18] [1990] 1 S.C.R. 1366, at pp. 1398-1399.
[19] [1987] 2 S.C.R. 591, at p. 596.
[20] Supra, note 13, at p. 149.
[21] [1976] 2 S.C.R. 9, at pp. 24-25.
[22] (1996), 30 O.R. (3d) 1 (C.A.), at p. 10.
[23] Id., at pp. 22-29.
[24] Supra, note 17, at p. 221.
[25] Supra, note 10, at para. 82.
[26] Supra, note 10, at para. 87.
[27] Re Nelles and Grange, supra, note 17, at p. 214.
[28] A.B., Vol. 10, at p. 1713 et seq.
[29] A.B., Vol. 10, at p. 1739 et seq.
[30] A.B., Vol. 10, at p. 1769 et seq.
[31] A.B., Vol. 10, at p. 1795 et seq.
[32] Supra, note 3, at pp. 295-296.
[33] The word “charge”, like its counterpart “accusation” in the French version, has a criminal connotation which attests to the age of the Act and to the fact that in some respects it has become outmoded; in modern language, we shall say “allegations”.
[34] See: Re Sawyer and Ontario Racing Commission (1979), 24 O.R. (2d) 673 (C.A.); Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Div. Ct.); Adair v. Ontario (Health Disciplines Board) (1993), 15 O.R. (3d) 705 (Div. Ct.); Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (C.A.); Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330(C.A.); Bovbel v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 563(C.A.).
[35] See: R. J. Anthony and A. R. Lucas, A Handbook on the Conduct of Public Inquiries in Canada, Toronto: Butterworths, 1985, at pp. 144-145.