T-2550-78
Paul D. Copeland on his own behalf and on behalf
of all members of the Law Union of Ontario
(Applicant)
v.
Mr. Justice David C. McDonald, Donald S. Rick-
erd and Guy Gilbert, members of the Commission
of Inquiry into certain activities of the Royal
Canadian Mounted Police (Respondents)
Trial Division, Cattanach J.—Toronto, June 26
and 29; Ottawa, August 4, 1978.
Prerogative writs — Prohibition — Investigation into cer
tain, possibly illegal, activities of R.C.M.P. — Applicant
contending to be victim of illegal activity and perhaps subject
to investigation by Commission — Claim that Commissioners,
because of political activity prior to appointment, biased in
legal sense, and hence disqualified — Whether or not prohibi
tion should be granted — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18(a) — Federal Court Rule 319(4).
Class motion — Whether or not allegations common to
applicant and to all members of class on behalf of whom
motion brought.
This is an application by way of an originating notice of
motion for a writ of prohibition prohibiting the respondents, as
members of a Commission of Inquiry for the purpose of
inquiring into certain activities of the Royal Canadian Mount
ed Police, from continuing their inquiry on the ground of bias,
in a legal sense, of each Commissioner. It is contended that the
applicant Copeland was a victim of R.C.M.P. illegal activity
and may be the subject of investigation by the Commission;
that he is entitled to have his allegations of illegal activities by
the R.C.M.P. with respect to himself investigated by a com
pletely unbiased panel; and that he could reasonably apprehend
the Commission's not acting in an entirely impartial manner, in
view of their political activities prior to appointment—a ground
for disqualification. The application is also brought on behalf of
all members of the Law Union of Ontario.
Held, both the application of the applicant Copeland on.his
own behalf and the class motion with respect to the Law Union
of Ontario are dismissed. The allegations are personal to the
applicant Copeland and are not common to him and the
members of the Law Union of Ontario. There are no such
allegations with respect to any or all members of the Law
Union of Ontario. At its very highest, the Commission is but a
fact-finding, reporting and advisory body that is not even
quasi-judicial for it decides nothing and determines nothing.
The common law standards of bias are not applicable, and
therefore, even should bias be found to exist, such a finding
would be irrelevant. The remedy of a person aggrieved by a
decision required to be made on the basis of its being fair to the
best ability of those who decide is political not judicial; that
being so, it applies with much greater force to a tribunal which
makes no decision. No prejudice to any personal right or
interest of applicant is foreseeable as a result of the inquiry or
of any action that may be taken by the Governor in Council on
the report of the Commission when eventually submitted.
Naken v. General Motors of Canada Ltd. (1978) 17 O.R.
(2d) 193, agreed with. Committee for Justice and Liberty
v. National Energy Board [1978] 1 S.C.R. 369, applied.
Guay v. Lafleur [1965] S.C.R. 12, applied. Saulnier v.
Quebec Police Commission [1976] 1 S.C.R. 572, distin
guished. In re Pergamon Press Ltd. [1970] 3 W.L.R. 792,
considered. Maxwell v. Department of Trade and Com
merce, Times newspaper L.R., June 25, 1974, considered.
APPLICATION.
COUNSEL:
Michael Mandel and J. House for applicant.
J. J. Robinette, Q.C., for respondents.
SOLICITORS:
Michael Mandel, Osgoode Hall Law School,
York University, Downsview, for applicant.
McCarthy & McCarthy, Toronto, for
respondents.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: As indicated in the style of
cause this is an application by way of an originat
ing notice of motion pursuant to section 18(a) of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, for a writ of prohibition prohibiting the
respondents, as members of a Commission of
Inquiry for the purpose of inquiring into certain
activities of the Royal Canadian Mounted Police,
from continuing their inquiry on the ground of the
bias, in the legal sense, of each Commissioner.
Immediately antecedent to the hearing of this
motion the applicant moved for leave to call the
respondents and two newspaper reporters to testify
orally in open court in relation to issues of fact
raised by the present application pursuant to Rule
319(4).
I declined to grant the leave requested because,
in my opinion, no special reason was established
for so doing.
By virtue of Rule 319, the rule is that the
allegations of fact on which a motion is based shall
be proved by affidavit. That a witness may be
called to testify in open court in relation to an
issue of fact raised in the application, is the excep
tion. The exception is granted only by leave when
special reason is shown.
The adverse party to a motion may file an
affidavit in reply and that affidavit too is to be
directed to the facts. That is all an adverse party is
required to do and he need not file an affidavit in
reply unless he considers it expedient to do which
the respondents in this matter did not.
As I appreciated the purpose of calling the three
respondents to testify orally as well as the two
newspaper reporters, it was to exact an admission
or denial from the Commissioners of the allega
tions of fact in the supporting affidavit to the
principal motion, from which an inference of bias
might be made, and the source of the information
of the newspaper reporters for their published
stories.
I failed to see the necessity for so doing. I
expressed the view that there were adequate alle
gations of fact in the supporting affidavit to the
principal motion from which bias, in its legal
sense, may be inferred, but in so stating I did not
make a finding of bias and I made it clear that I
did not intend to so imply.
An application by way of motion is in no way
akin to the trial of a cause of action which is based
on antecedent pleadings.
I did not fault the applicant in adopting the
procedure which he did and as he is entitled to do
but I could not refrain from expressing the view
that if the applicant wished to examine the
respondents (and he could not cross-examine them
on their affidavits because the respondents did not
consider it necessary to file such affidavits and
were under no obligation to do so) then if the
applicant had adopted the alternative course open
to him of filing a statement of claim an examina
tion for discovery of the respondents would have
been available to him.
While I verbally rejected the application I have
considered it expedient to reduce to writing at this
stage the reasons I gave orally for doing so.
There is a further matter also preliminary in its
nature which may be considered also at this stage.
The applicant brings this motion on his own
behalf and on behalf of all members of the Law
Union of Ontario.
Thus it is a class motion. For a matter to be
appropriate for the institution of a class or repre
sentative action (and for the purposes of this par
ticular subject matter only I shall consider a class
motion as synonymous with a class cause of
action) the persons in the class must have the same
interest. There must be a common interest and a
common grievance and the relief sought in its
nature must be beneficial to all.
In Naken v. General Motors of Canada Ltd.
(1978) 17 O.R. (2d) 193 Griffiths J. speaking for
the Divisional Court said at page 195:
The first important principle to be extracted from these cases
is that a plaintiff is only permitted to sue in a representative
capacity on behalf of a class when the cause of action being
asserted is common to all members of the class, not similar, but
identical.
In the affidavit of Paul D. Copeland in support
of the motion it is alleged that the members of the
Law Union of Ontario is an unincorporated asso
ciation of one hundred and eighty progressive and
socialist lawyers, law students and legal workers.
Thus the Law Union of Ontario is but a collection
of individuals.
In paragraph 10 of Mr. Copeland's affidavit he
alleges that he verily believes that he has been the
victim of criminal and other illegal activity by
members of the Royal Canadian Mounted Police
on the grounds that his clients have been the
victims of such activities, that confidential tele
phone communications with a potential witness
had been illegally intercepted, that his office has
been the subject of surveillance, that he was
regarded as a threat to the security of the Canadi-
an Penitentiary Service and because his legal part
ner was the victim of illegal acts by the R.C.M.P.
and that because of that association he was also a
victim.
These allegations are personal to Mr. Copeland.
They are not common to him and the members of
the Law Union of Ontario nor are there such
allegations with respect to all or any members of
the Law Union of Ontario.
Therefore this motion is not properly brought by
Mr. Copeland in a representative capacity on
behalf of all members of the Law Union of
Ontario and I have entertained the motion as
being brought on his own behalf exclusively.
With respect to the members of the Law Union
of Ontario the motion is therefore dismissed.
Counsel for Mr. Copeland, because of the alle
gations in his affidavit above mentioned, contend
ed that he was a victim of R.C.M.P. illegal activity
which may well be the subject of investigation by
the Commission and in fact Mr. Copeland has so
requested and there has been a tentative indication
given that these particular matters will be investi
gated if deemed appropriate and at the appropri
ate time.
Accordingly it is contended that Mr. Copeland
is entitled to have his allegations of illegal activi
ties by the R.C.M.P. with respect to himself inves
tigated by a completely unbiased panel.
It was then contended Mr. Copeland could rea
sonably apprehend that the Commission might not
act in an entirely impartial manner and that is a
ground for disqualification.
The supporting affidavit to the motion has many
allegations and has annexed thereto numerous
exhibits running through the alphabet and starting
through the alphabet a second time, the gist of
which may be summarized.
The allegations are that Mr. Justice McDonald,
prior to his appointment, had been an active,
energetic and political partisan in the Province of
Alberta for the political party which now forms
the Government of Canada and which was respon
sible for the appointment of all three Commission
ers. Similar allegations are made of political parti
sanship by Mr. Rickerd and Mr. Gilbert. It is
further alleged that Mr. Justice McDonald, after
his appointment accompanied the present Prime
Minister in a private DOT aircraft on an official
visit to the Orient in the capacity of a news
correspondent. It is also alleged that Mr. Rickerd
and Mr. Gilbert had close personal and business
relationships with members of the Cabinet particu
larly the then Solicitor General responsible for the
R.C.M.P. It is alleged that the Commission has
expressed the view that certain alleged illegal
activities by the R.C.M.P. may have been justified
by the interests of national security. It is a func
tion of the Commission to determine the extent to
which the members of the Government, the Cabi
net and the Liberal party were aware of, author
ized or were in any way complicit in illegal activi
ties of the R.C.M.P.
These allegations were the subject matter of
many newspaper reports, given wide distribution
and prominence in the newspapers because the
stories were newsworthy. The press clippings are
among the exhibits to the affidavit.
Still further summarized the gist of the allega
tions is that these circumstances lead to the suspi
cion, to be reasonably entertained that the Com
mission will serve as a whitewash of the R.C.M.P.
and members of the Government and that Mr.
Copeland, as a victim of these activities, cannot
expect a fair shake from a Commission so appoint
ed and so comprised.
The most recent test of bias to be applied and a
discussion thereof is in the reasons for judgment
delivered by Laskin C.J.C. for the majority of the
Supreme Court of Canada in Committee for Jus
tice and Liberty v. National Energy Board [1978]
1 S.C.R. 369 where he said at page 391:
[The past activity of the Chairman of the Board], in my
opinion, cannot but give rise to a reasonable apprehension, [of
bias] which reasonably well-informed persons could properly
have, of a biased appraisal and judgment of the issues to be
determined on a s. 44 application.
This Court in fixing on the test of reasonable apprehension of
bias, as in Ghirardosi v. Minister of Highways for British
Columbia ([1966] S.C.R. 367), and again in Blanchette v.
C.!.S. Ltd. ([1973] S.C.R. 833), (where Pigeon J. said ... that
"a reasonable apprehension that the judge might not act in an
entirely impartial manner is ground for disqualification") was
merely restating what Rand J. said in Szilard v. Szasz ([1955]
S.C.R. 3), at pp. 6-7 in speaking of the "probability or reasoned
suspicion of biased appraisal and judgment, unintended though
it be". This test is grounded in a firm concern that there be no
lack of public confidence in the impartiality of adjudicative
agencies, and I think that emphasis is lent to this concern in the
present case by the fact that the National Energy Board is
enjoined to have regard for the public interest.
The majority held that Mr. Crowe, the Chair
man of the National Energy Board, because of his
previous association with a party before the Board,
was the object of a reasonable apprehension of
bias. Similar circumstances applied in Szilard v.
Szasz.
In the plethora of decided cases expressions such
as "reasonable apprehension of bias", "reasonable
suspicion of bias" and "real likelihood of bias"
have been used interchangeably without distinc
tion.
In his dissenting judgment in the National
Energy Board case, de Grandpré J. with whom
Martland and Judson JJ. concurred, applied the
same test as did Laskin C.J.C. but arrived at a
different result.
Judge de Grandpré said at pages 394-395:
... the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to
the question and obtaining thereon the required information.
He could:
... see no real difference between the expressions found in the
decided cases, be they `reasonable apprehension of bias', 'rea-
sonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
I can perceive no difference in principle to the
approaches between the judgment of Laskin C.J.C.
and de Grandpré J. but it is significant that de
Grandpré J. does refer to "real likelihood of bias"
whereas the majority excluded that formula.
It may be that a "real likelihood of bias"
imposes a higher standard on an applicant for
prerogative relief than does a "reasonable appre
hension of bias" but in view of the majority's
silence as to the test of a "real likelihood" such
expressions of the test as to whether "a reasonable
man would consider there was a likelihood of
bias", which has been frequently propounded, may
not be an accurate statement of the law.
Accordingly the question immediately arises as
to what issues are to be determined by the
Commission.
For there to be an issue to be determined there
must be a lis inter partes, that is to say a dispute
between parties to be decided by the Commission.
Lord Simonds in Labour Relations Board of
Saskatchewan v. John East Iron Works Ltd.
[1948] 4 D.L.R. 673 said at page 680:
It is a truism that the conception of the judicial function
is inseparably bound up with the idea of a suit between
p arties, ... .
Thus if there is a lis inter partes the function is
judicial in the case of courts of law and equally so
in the case of a tribunal where issues between
parties are decided where the function is more
properly described as quasi-judicial.
Conversely if there is no issue or lis to be
determined then the function of the tribunal is
described as administrative and the principles of
natural justice, particularly the common law con
cept of bias, do not apply with the same full force
and effect to such a tribunal as they apply to a
quasi-judicial tribunal which is required to deter
mine a quasi -lis.
Incidentally in Committee for Justice and Lib
erty v. National Energy Board (supra) there was
such a quasi -lis. There the Board had before it the
question for decision whether to issue a certificate
in respect to the proposed Mackenzie Valley pipe-
line to an applicant therefor to which other inter
ested parties upon whom the Board had conferred
status were opposed.
In Guay v. Lafleur [1965] S.C.R. 12 Cartwright
J. (as he then was) said that the maxim, audi
alteram partem (one of the cardinal principles of
natural justice) does not apply to an administrative
officer whose function is simply to collect informa
tion and make a report and who has no power to
impose a liability or to give a decision affecting the
rights of parties.
In In re Pergamon Press Ltd. [1970] 3 W.L.R.
792 the English Court of Appeal held that inspec
tors appointed to investigate the affairs of a com
pany under Companies legislation were masters of
their own procedure but were required to act fairly
and, therefore, were required to give anyone whom
they proposed to condemn or criticize in their
report a fair opportunity to answer what was
alleged against him.
In the federal Companies Act as I once knew it,
that right was the subject of precise statutory
enactment.
But Lord Denning M.R. in his characteristically
precise and incisive language said [at page 797]:
They are not even quasi-judicial, for they decide nothing, they
determine nothing.
Accordingly a tribunal is to be categorized as
either quasi-judicial or administrative by the func
tion it performs and its powers. The category into
which a tribunal falls is of paramount importance
in determining what common law principles of
natural justice are applicable and consideration
must also be given to the legislation to which the
tribunal owes its existence.
The present Commission of Inquiry, of which
the respondents are members, owes its existence to
the Inquiries Act, R.S.C. 1970, c. I-13, as stated in
the style. Under Order in Council, P.C. 1977-1911
a Commission issued appointing the respondents to
be Commissioners under Part I of the Inquiries
Act.
Their functions are therein outlined to be:
(a) to conduct such investigations as in the opinion of the
Commissioners are necessary to determine the extent and
prevalence of investigative practices or other activities involv
ing members of the R.C.M.P. that are not authorized or
provided for by law and, in this regard, to inquire into the
relevant policies and procedures that govern the activities of
the R.C.M.P. in the discharge of its responsibility to protect
the security of Canada;
(b) to report the facts relating to any investigative action or
other activity involving persons who were members of the
R.C.M.P. that was not authorized or provided for by law as
may be established before the Commission, and to advise as
to any further action that the Commissioners may deem
necessary and desirable in the public interest; and
(c) to advise and make such report as the Commissioners
deem necessary and desirable in the interest of Canada,
regarding the policies and procedures governing the activities
of the R.C.M.P. in the discharge of its responsibility to
protect the security of Canada, the means to implement such
policies and procedures, as well as the adequacy of the laws.
of Canada as they apply to such policies and procedures,
having regard to the needs of the security of Canada.
I have omitted the introductory portion and the
procedure provisions.
Paragraph (a) requires the Commission to
"investigate" and to "determine" the extent and
prevalence "of [certain] investigative practices" of
and to "inquire into" certain policies of the
R.C.M.P.
By paragraph (b) the Commission is required to
"report the facts", and to "advise as to any further
action that the Commissioners may deem neces
sary and desirable in the public interest".
By paragraph (c) the Commission is required
"to advise and make such report as the Commis
sioners deem necessary and desirable".
In the procedural portion of the Order in Coun
cil which I have not reproduced, the Commission
ers are "directed to report to the Governor in
Council".
The key words in the functions of the Commis
sion are to "investigate", "inquire", "report the
facts" and "to advise" with respect thereto.
Thus at its very highest the Commission is but a
fact-finding, reporting and advisory body.
Paraphrasing and applying the words of Lord
Denning M.R. to the Commissioners herein, they
are not even quasi-judicial, for they decide noth
ing, they determine nothing.
The Commission reports to the Governor in
Council and it is for him to decide what shall be
done. He may implement the advice given in the
report in whole or in part or he may consign the
report to oblivion. The action to be taken thereon
is exclusively his decision.
In contrasting the position of a judge in court
and that of a fact-finding and advisory body which
can only be classed as administrative, notwith
standing that both hold hearings, the gulf is so
wide between them that the common law stand
ards of bias are not applicable to the latter.
In my view bias in the Commission, even if it
should be found to exist and I make no such
finding, is irrelevant.
In so stating I have not overlooked the comment
in In re Pergamon Press (supra) that the inspec
tors appointed under Companies legislation to give
to anyone whom they propose to condemn or criti
cize, "a fair opportunity to answer what was
alleged against him".
In Maxwell v. Department of Trade and Com
merce (Times newpaper L.R., June 25, 1974) the
Court of Appeal dealt with the same inquiry as
that dealt with in the Pergamon Press case and
refused to apply any requirement other than the
inspectors must be "fair to the best of their
ability".
If a person is aggrieved by a decision that should
have been made on a quasi-judicial basis then that
person, in my view, may resort to proceedings in
the nature of certiorari or may invoke a review of
that decision under section 28 of the Federal
Court Act.
But if a person is aggrieved by a decision that is
required to be made on the basis of its being fair to
the best ability of those who decide, then the
remedy is political not judicial.
That being so it applies with much greater force
to a tribunal which makes no decision.
Counsel for Mr. Copeland relied strongly on the
judgment of the Supreme Court in Saulnier v.
Quebec Police Commission [1976] 1 S.C.R. 572 in
support of his position that, even though the
respondent Commissioners would not have any
decision to make, their recommendations would or
might form the basis for action to be taken by the
Governor in Council which might prejudicially
affect Mr. Copeland's interests. In that case,
Pigeon J. speaking for the Court, distinguished the
case of Guay v. Lafleur in the following passage at
pages 578-579:
With respect, I must say that the function of the Commission
is definitely not that of the investigator concerned in Guay v.
Lafleur. That investigator was charged only with collecting
information and evidence. The Minister of National Revenue
could then unquestionably make use of the documentary evi
dence collected, but not of the investigator's conclusions. It is
for this reason that it was held the investigator could refuse to
allow the taxpayer concerned to be present or be represented by
counsel at the kind of investigation provided for by the Income
Tax Act. The situation is quite different under the Police Act,
s. 24 of which reads as follows:
24. The Commission shall not, in its reports, censure the
conduct of a person or recommend that punitive action be
taken against him unless it has heard him on the facts giving
rise to such censure or recommendation. Such obligation
shall cease, however, if such person has been invited to
appear before the Commission within a reasonable delay and
has refused or neglected to do so. Such invitation shall be
served in the same manner as a summons under the Code of
Civil Procedure.
This provision indicates that in this essential particular the
Police Act differs fundamentally from the Income Tax Act. If
this Court held that the latter Act did not require application of
the audi alteram partem rule, this was because it had first
concluded that the kind of investigation provided for by the Act
involved no conclusion or finding as to the rights of the
taxpayer concerned. The Police Act, on the other hand, besides
expressly recognizing the application of the audi alteram
partem rule, clearly indicates that the investigation report may
have important effects on the rights of the persons dealt with in
it. It does not appear necessary for me to labour this point, as I
cannot see how it can be argued that the decision is not one
which impairs the rights of appellant, when it requires that he
be degraded from his position as Director of the City of
Montreal Police Department, and the sole purpose of subse
quent proceedings is to determine the lower rank to which he
should be assigned, that is the extent of the degradation.
In my opinion Casey J.A., dissenting, properly wrote, with
the concurrence of Rinfret J.A.:
I believe that the Lafleur case is clearly distinguishable
from the one now being discussed. In Lafleur the Supreme
Court was concerned with the Income Tax Act—here we
have a Quebec statute. In that case it had to decide whether
the doctrine audi alteram partem applied: here it is written
right into the Act by sec. 24. Finally there it was said that
.. the appellant has no power to determine any of the
former's (Respondent's) rights or obligations". In my opinion
Appellant (i.e. the Commission) has done just that.
Appellant has rendered a decision that may well impair if
not destroy Respondent's reputation and future. When I read
the first and fourth considerants and the conclusions of the
sixth recommendation and when I recall that the whole
purpose of these reports is to present facts and recommenda
tions on which normally the Minister will act the argument
that no rights have been determined and that nothing has
been decided is pure sophistry.
In the Saulnier case the inquiry was into the
conduct of Saulnier as a police officer under the
applicable statutory provision. The report, from
which there was no appeal, was held to have
impaired his rights while in the Lafleur case the
rights of the person investigated under the Income
Tax Act remained intact, since he had access to
the courts by way of appeal from any assessment
that might arise from information collected by the
investigator.
Here the situation is that it is not even the
conduct of Mr. Copeland, but that of the
R.C.M.P., that is to be investigated, and while
there is no appeal neither is there any report to be
made on Mr. Copeland's conduct. No prejudice to
any personal right or interest of his is foreseeable
as a result of the inquiry or of any action that may
be taken by the Governor in Council on the report
of the Commission when eventually submitted. At
most Mr. Copeland may, and perhaps will be a
witness at some stage of the inquiry, in which
event he will undoubtedly be entitled to the same
rights and protections as any witness.
In the event that any adverse report is to be
made against him as a witness, he will also be
entitled to the protection afforded by section 13 of
the Inquiries Act, that is to say the right to be told
what is alleged against him as misconduct on his
part and the right to a full opportunity to be heard
in person or by counsel on his behalf. But this will
be the full extent of his rights in respect of the
making of such an adverse report. Though pre
scribed here by the statute, these rights are, in my
opinion, precisely the same as those upheld by the
Court of Appeal in the absence of a like statutory
provision in the Pergamon Press case.
The application therefore fails and it will be
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.