A-1457-83
John C. Doyle (Applicant)
v.
Restrictive Trade Practices Commission and F.
H. Sparling and Canadian Javelin Ltd./Javelin
International Ltd. (Respondents)
Court of Appeal, Pratte, Ryan and Marceau JJ.—
Ottawa, April 24, 25 and June 3, 1985.
Judicial review — Applications to review — Corporations
— S. 28 application to set aside report of Restrictive Trade
Practices Commission pursuant to Canada Corporations Act s.
114 — Following investigation, hearings held into alleged
fraudulent use of Canadian Javelin Ltd. by applicant —
Commission filing report confirming fraudulent conduct —
Applicant alleging two of three commissioners signing report
not present at all hearings — Two commissioners absent on
separate occasions for all or part of hearings, on up to six days
— Transcription of hearings available — Act providing two
members constituting quorum — Applicant invoking rule "he
who decides must hear" — Whether irregularity rendering
report null and void — Rule based on legislator's supposed
intentions — Inapplicable when expressly excluded by legisla
tor or not implied by statutory provisions — Rule requiring
commissioners hear evidence and arguments according to law
— Applicant's absence from hearings not disqualifying him
from challenging validity of report — Law requiring commis
sioners be present at hearings to consider evidence — Whether
rule applying only to judicial or quasi-judicial bodies making
decisions directly affecting rights of parties — Commission
only making recommendations — Although not creating
individual rights or obligations, report not devoid of legal
effect as empowering Minister to initiate proceedings in name
of company — Non-compliance with statutory requirements
concerning presence of commissioners, sufficient to void report
as if judicial or quasi-judicial decision — Canada Corpora
tions Act, R.S.C. 1970, c. C-32, s. 114 (as am. by R.S.C. 1970
(1s' Supp.), c. 10, s. 12) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
The applicant is asking that a report of the Restrictive Trade
Practices Commission, made pursuant to section 114 of the
Canada Corporations Act, be set aside under section 28 of the
Federal Court Act. Following an investigation of Canadian
Javelin Ltd. by the Commission's inspector, hearings were held
into allegations that the applicant had fraudulently used the
company for his personal gain at the expense of other share
holders. Between April 26, 1982, and June 1983, the Commis-
sion held 32 days of hearings. The applicant was not present at
the hearings but was represented by counsel until July 21,
1982. Two of three commissioners were absent on separate
occasions for all or part of the hearings on a total of six days.
Transcriptions of the hearings were available to the commis
sioners to review what had taken place in their absence. In
September 1983, the Commission filed its report, signed by the
three commissioners, stating that most of the allegations of
fraud made by the inspector were founded and appropriate
recommendations were made. It appears that two of three
commissioners were not present at all times to hear the evi
dence. The applicant, invoking the maxim "he who decides
must hear", argues that the absences of the commissioners
render the report null and void as only one member was
authorized to sign it. The respondent maintains that the maxim
does not apply since the Commission only makes recommenda
tions, not decisions affecting the rights of the parties. Further
more, the applicant's absence from the hearings prevents him
from invoking the irregularity.
Held (Marceau J. dissenting): the application should be
granted and the report a quo set aside.
Per Pratte J.: The principal issue to be decided is whether the
maxim "he who decides must hear" is applicable in the present
case. The rule establishes that only those members of a tribunal
having heard the evidence can participate in its decision. The
rule is more than a corollary to the maxim audi alteram
partem in that it actually affects the judge's jurisdiction. Its
violation can be invoked even though the applicant, by his
absence from the proceedings, forfeited his right to be heard.
The applicant's choice of not participating in the hearings does
not deprive him of the right to be judged by members of a
tribunal present throughout the hearings. The rule "he who
decides must hear" is based on the legislator's supposed inten
tions. When it applies to a tribunal, it requires that all members
taking part in the decision hear the evidence and arguments of
the parties in the manner prescribed by law. Even though
transcriptions of the hearings were made available for the
benefit of the absent commissioners, the question remains
whether the evidence was received according to law.
It is stated in numerous cases that the rule applies only to
judicial or quasi-judicial bodies making decisions that directly
affect the rights of the parties involved. Although, in accord
ance with section 114 of the Act, the Commission only makes
recommendations, it is necessary to examine the statutory
provisions governing the Commission. The recommendations
contained in the report are not without legal effect since they
empower the Minister to institute, maintain or settle proceed
ings in the name of the company under investigation. It is
apparent that Parliament intended the Commission to hold
hearings where the parties concerned could be heard and that
only the commissioners present to hear the evidence could
lawfully sign the ensuing report. In light of these provisions, the
absences of two commissioners who signed the report render it
void as if it were a judicial or quasi-judicial decision. Therefore,
the report a quo should be set aside.
Per Marceau J. (dissenting): It is clear from the statutory
provisions governing the Commission that the report can only
be prepared and submitted to the Minister after those con
cerned have had the opportunity to be heard. However, the
requirement put forth by the applicant that no commissioner
who is absent at any time during the hearings participate in the
preparation of the report, cannot be inferred from the Act.
Section 114 discloses no presumed intention on the part of
Parliament that the rule "he who decides must hear" be
complied with. Furthermore, the Commission must maintain a
quorum of two members to act legally. It must be emphasized
that at all stages of the process it is the Commission that acts
and not its members. In the case at bar, the evidence seems to
indicate that only one commissioner was actually absent a
limited number of times from the hearings.
The source of the rule not being in the Act itself or implied
by presumed intention, the only remaining source would be as a
corollary to the maxim audi alteram partem. If that were the
case, the applicant, by his absence waived his right to invoke
the rule. However, a requirement of this nature and impor
tance, cannot be considered as a mere corollary to the parties'
right to be heard. Furthermore, it is impossible in the present
case to link the existence of the rule invoked to principles of
natural justice as the Commission is not a tribunal rendering
decisions affecting individual rights.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Conseil de section du Barreau de Québec v. E. et al.,
[1953] R.L. 257 (Que. K.B.); CRTC v. CTV Television
Network Ltd. et al., [1982] 1 S.C.R. 530; Lipkovits v.
Canadian Radio-television and Telecommunications
Commission, [1983] 2 F.C. 321; 45 N.R. 383 (C.A.);
Reg. v. Race Relations Board, Ex parte Selvarajan,
[1975] 1 W.L.R. 1686 (Eng. C.A.); Foster v. City of
Halifax, [1926] 1 D.L.R. 125 (N.S.S.C.); Rex v. Hunt-
ingdon Confirming Authority. Ex parte George and
Stamford Hotels, Ld., [1929] 1 K.B. 698 (C.A.); Mehr v.
Law Society of Upper Canada, [1955] S.C.R. 344; Re
Ramm (1957), 7 D.L.R. (2d) 378 (Ont. C.A.); Hughes v.
Seafarers' International Union of North America,
Canadian District & Heinekey (1961), 31 D.L.R. (2d)
441 (B.C.S.C.); R. v. Committee on Works of Halifax
City Council, Ex p. Johnston (1962), 34 D.L.R. (2d) 45
(N.S.S.C.); Re Rosenfeld and College of Physicians and
Surgeons (1969), 11 D.L.R. (3d) 148 (Ont. H.C.); R. v.
Broker-Dealers' Association of Ontario, Ex parte Saman
Investment Corporation Ltd., [1971] 1 O.R. 355 (H.C.);
Re Rogers: Rogers v. Prince Edward Island Land Use
Commission (1979), 20 Nfld. & P.E.I.R. 484
(P.E.I.S.C.); Murray v. Rockyview No. 44 (1980), 12
Alta. L.R. (2d) 342; 21 A.R. 512 (C.A.); Hayes v. Sask.
Housing Corp., [1982] 3 W.W.R. 468 (Sask. Q.B.).
COUNSEL:
Robert Décary and Serge Laurin for appli
cant.
J. Mabbutt for respondent Restrictive Trade
Practices Commission.
François Garneau for respondent F. H.
Sparling.
SOLICITORS:
Noël, Décary, Aubry & Associés, Hull, for
applicant.
Deputy Attorney General of Canada for
Attorney General of Canada.
Desjardins, Ducharme, Desjardins & Bour-
que for respondent F. H. Sparling.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant is asking that a report
made by the respondent Commission under subsec
tion 114(25) of the Canada Corporations Act
[R.S.C. 1970, c. C-32 (as am. by R.S.0 1970 (1st
Supp.), c. 10, s. 12)] be set aside under section 28
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10].'
The applicant raised several arguments in sup
port of his appeal. Only one, however, is worthy of
consideration, namely the argument that the deci
sion a quo should be set aside because two of the
three commissioners who rendered it did not
attend all the hearings during which the Commis
sion obtained the evidence on which it was to base
its report. When this case was heard, we did not
feel it was necessary to hear counsel for the
respondents on any other points.
Section 114 of the Canada Corporations Act
provides that the Restrictive Trade Practices Com
mission may, where there are reasonable grounds
for believing that one of the situations provided for
in subsection 114(2) exists, order that a company
be investigated and appoint an inspector for that
purpose. This investigation is carried out in two
stages. First, the inspector investigates and, if he is
' This Court held on January 20, 1984 that this report was a
"decision" within the meaning of section 28.
of the opinion that his investigation has revealed
the existence of one of the situations contemplated
by the Act, he submits to the Commission a state
ment of the evidence he has obtained. The Com
mission must then, as provided for in subsection
114(24), hold hearings at "which evidence and
argument in support of the statement may be
submitted by or on behalf of the inspector, and at
which the persons against whom an allegation has
been made in the statement shall be allowed full
opportunity to be heard in person or by counsel".
Once these hearings have been completed, the
Commission reports to the Minister.
On May 17, 1977, the Commission ordered,
pursuant to section 114, that an investigation be
conducted into the affairs of Javelin International
Ltd. On January 26, 1982, the inspector appointed
to conduct this investigation submitted to the
Commission a statement of the evidence he had
obtained. In this document, the inspector stated,
among other things, that he had discovered that
the applicant Doyle had fraudulently used Javelin
for his personal gain at the expense of the other
shareholders of the company. Shortly thereafter,
the Commission advised the inspector, the appli
cant and all others concerned that it would be
holding public hearings commencing on April 26,
1982. Between that date and June 1983, the Com
mission held 32 days of hearings. The applicant,
who lives outside the country, did not attend the
hearings. However, he was represented at them by
a lawyer until July 21, 1982; on that date the
latter withdrew from the hearings to protest the
manner in which the Commission was conducting
the investigation; he was not to return. On Sep-
tember 26, 1983, the Commission filed its report
with the Minister of Consumer and Corporate
Affairs; in the report it concluded that most of the
allegations of fraud made by the inspector against
the applicant were founded and made the recom
mendations it considered appropriate. It is this
report which the applicant is seeking to have set
aside.
The Commission's report is signed by three
members of the Commission: the Chairman, Mr.
Stoner, and two commissioners, Mr. MacLellan
and Mr. Roseman. It is clear that Mr. Stoner
attended all the hearings which preceded the filing
of the report. Mr. MacLellan, for his part, was
apparently not present at the hearings on January
24, 25 and 26, 1983; 2 he was apparently also
absent at the commencement of the sessions on
March 28 and 29, 1983; finally, he apparently left
for a few minutes during the morning of March 30
and the afternoon of April 5, 1983. As for Mr.
Roseman, he was apparently absent for part of the
morning and the entire afternoon of June 29 or
July 21, 1982. It is not disputed that the Commis
sion had the benefit of stenographic and transcrip
tion services which allowed the commissioners to
review what had taken place in their absence.
Thus two of the three persons who signed the
report apparently had not heard all the evidence. It
is this irregularity raised by counsel for the appli
cant. He invoked the maxim "he who decides must
hear" and concluded that only one of the three
persons who signed the report had the authority to
sign it. The report was therefore null and void for
two reasons: first, because it had been validly
signed by only one person, whereas the Act pro
vides that two members of the Commission shall
constitute a quorum; 3 second, because it is suffi
cient, for a decision rendered by serveral persons
to be invalidated, for only one of them not to have
the authority to participate in it.
To this, counsel for the respondents replied:
that the quorum rule had been complied with
since the decision a quo had been signed by
three members of the Commission and since two
of them had been present at all times through
out the hearings;
that the rule "he who decides must hear" did
not apply in the case at bar because the Com
mission was responsible for making recommen
dations and not for rendering a decision defining
the rights of the parties in question;
2 The stenographic notes made during the hearings gave the
names of the commissioners present at the commencement of
each hearing. According to these notes, Mr. MacLellan was not
present at the commencement of the hearings on January 24,
25 and 26 and March 28 and 29, 1983. On January 24, Mr.
MacLellan's absence was noted and the Chairman explained:
"He has a touch of flu and it is rather serious for the moment."
(Transcript, Vol. 17, p. 2278.) It can therefore be presumed
that Mr. MacLellan was absent during the entire sessions on
January 24, 25 and 26.
3 See: Combines Investigation Act, R.S.C. 1970, c. C-23, s.
16(8) (as am. by S.C. 1974-75-76, c. 76, s. 5).
that, in any event, having waived the right to be
heard, the applicant could not be allowed to
invoke the irregularity complained of;
finally, that it had not been established that this
irregularity prejudiced the applicant in any way
or that the Commission's report would have
been different if all the commissioners had
attended all the hearings.
I do not think it is necessary for the purpose of
deciding this case to determine whether the rule
that two members of the Commission constitute a
quorum was complied with. The important issue is
whether the maxim "he who decides must hear"
invoked by the applicant should be applied here.
This maxim expresses a well-known rule accord
ing to which, where a tribunal is responsible for
hearing and deciding a case, only those members
of the tribunal who heard the case may take part
in the decision. It has sometimes been said that
this rule is a corollary of the audi alteram partem
rule. 4 This is true to the extent a litigant is not
truly "heard" unless he is heard by the person who
will be deciding his case. In my view, however, the
rule expresses more than that; it is a rule which
actually affects the judge's jurisdiction. For that
reason its violation may be invoked even by a
litigant who waived his right to be heard by the
court which passed judgment on him. Thus, a
defendant who voluntarily declines to attend the
hearing thereby waives the right to be heard; he
does not, however, waive the right to be judged by
a judge who has heard the evidence. This having
been said, it must be realized that the rule "he who
decides must hear", important though it may be, is
based on the legislator's supposed intentions. It
therefore does not apply where this is expressly
stated to be the case; 5 nor does it apply where a
review of all the provisions governing the activities
of a tribunal leads to the conclusion that the
legislator could not have intended them to apply. 6
Where the rule does apply to a tribunal, finally, it
4 See: Conseil de section du Barreau de Québec v. E. et al.,
[1953] R.L. 257 (Que. K.B.), at p. 265.
5 See: CRTC v. CTV Television Network Ltd. et al., [1982]
1 S.C.R. 530; Lipkovits v. Canadian Radio-television and
Telecommunications Commission, [1983] 2 F.C. 321; 45 N.R.
383 (C.A.).
6 See: Reg. v. Race Relations Board, Ex parte Selvarajan,
[1975] 1 W.L.R. 1686 (Eng. C.A.).
requires that all members of the tribunal who take
part in a decision must have heard the evidence
and the representations of the parties in the
manner in which the law requires that they be
heard. It can therefore not be argued that the
requirements of the law have been met merely
because the members of the tribunal who rendered
a decision heard the evidence and arguments; the
rule requires that they hear them in the manner
prescribed by law.
These general observations do not provide a
solution to this dispute. However, they do make it
possible, at least, to reject certain of the respond
ents' arguments and define the issue more precise
ly. Contrary to what was stated by counsel for the
respondents, the mere fact that the applicant
decided not to be heard by the Commission does
not deprive him of the right to complain of the fact
that all the commissioners who signed the report
did not hear all the evidence; contrary to what they
also stated, the fact that the commissioners were
able to review the evidence, despite their absence
from the hearings, does not mean that the appli
cant's application should not be granted since the
important thing is to determine whether the three
commissioners reviewed the evidence in the
manner prescribed by law.
The principal argument of counsel for the
respondents is that the maxim "he who decides
must hear" applies only to judicial and quasi-judi
cial bodies which are responsible for making deci
sions which directly affect the rights of the parties;
it would not apply to the Commission, which,
pursuant to section 114, may only make
recommendations. '
7 It is true that the Court has already decided that the report
which the Commission made in the case at bar was a decision
within the meaning of section 28 of the Federal Court Act.
However, the Court came to this conclusion chiefly on the
ground that a report by the Commission which contains one of
the recommendations referred to in subsection 114(27) is not
devoid of legal effect since it has the effect of empowering the
Minister to institute and maintain or settle proceedings in the
name of the company in question. It is still the case, therefore,
that a report made by the Commission pursuant to subsections
114(25) and (27), despite its legal effect, is not a decision
which directly affects the rights of the persons against whom it
is made.
This argument is important. In the numerous
cases cited by counsel for the applicant, I have not
found any decisions where the maxim invoked was
applied to a body responsible merely for making
recommendations. All the cases involved judicial
or quasi-judicial bodies responsible for rendering
decisions directly affecting the rights of the
parties. 8
It is not sufficient, however, in order to deter
mine how the Commission should have dealt with
the evidence presented to it, to consider only the
nature of the decision it was to render. It is also
necessary to take into account all the statutory
provisions governing the Commission. It is clear
from subsections 114(24), (25), (26) and (29) that
Parliament intended the Commission to obtain the
evidence and information to be used in preparing
its report during hearings which all parties con
cerned would be invited to attend and at which
they would have the right to be heard, in person or
by counsel; in other words, it seems that Parlia
ment attached so much importance to the Com
mission's report that it intended that the latter
should hold hearings and that those who prepared
the report should hear the evidence by attending
these hearings. It therefore seems to me to be clear
from section 114 that the commissioners who sign
a report pursuant to subsection 114(25) must be
those who were present during the hearings held
pursuant to subsection 114(24). The fact that, in
the case at bar, two of the three persons who
signed the report did not attend all the hearings is
8 See Foster v. City of Halifax, [1926] 1 D.L.R. 125
(N.S.S.C.); Rex v. Huntingdon Confirming Authority. Ex
parte George and Stamford Hotels, Ld., [1929] I K.B. 698
(C.A.); Conseil de section du Barreau de Québec v. E. et al.,
[1953] R.L. 257 (Que. K.B.); Mehr v. Law Society of Upper
Canada, [1955] S.C.R. 344; Re Ramm (1957), 7 D.L.R. (2d)
378 (Ont. C.A.); Hughes v. Seafarers' International Union of
North America, Canadian District & Heinekey (1961), 31
D.L.R. (2d) 441 (B.C.S.C.); R. v. Committee on Works of
Halifax City Council, Ex p. Johnston (1962), 34 D.L.R. (2d)
45 (N.S.S.C.); Re Rosenfeld and College of Physicians and
Surgeons (1969), 11 D.L.R. (3d) 148 (Ont. H.C.); R. v.
Broker-Dealers' Association of Ontario, Ex parte Saman
Investment Corporation Ltd., [1971] 1 O.R. 355 (H.C.); Re
Rogers: Rogers v. Prince Edward Island Land Use Commis
sion (1979), 20 Nfld. & P.E.1.R. 484 (P.E.1.S.C.); Murray v.
Rockyview No. 44 (1980), 12 Alta. L.R. (2d) 342; 21 A.R. 512
(C.A.); Hayes v. Sask. Housing Corp., [1982] 3 W.W.R. 468
(Sask. Q.B.).
sufficient to invalidate the report in the same way
as if it were a judicial or quasi-judicial decision.
I would therefore grant the application and set
aside the report a quo.
RYAN J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J. (dissenting): My brother Mr. Jus
tice Pratte is of the view that the Court should
grant this section 28 application and I have read
the reasons he has written in support of his conclu
sion. Unfortunately I am not convinced that his
analysis is correct and I have no other choice but
to dissociate myself from it.
Let us briefly review the facts. On May 9, 1977,
the Minister of Consumer and Corporate Affairs
asked the respondent Commission, pursuant to the
provisions of section 114 of the Canada Corpora
tions Act (R.S.0 1970, c. C-32 as amended by
R.S.C. 1970 (1st Supp.), c. 10, s. 12, hereinafter
referred to as the Act), to conduct an "investiga-
tion", within the meaning of the Act, of the affairs
of Canadian Javelin Ltd./Javelin International
Ltd. Having agreed to do so, the Commission, as
required, first instructed an inspector to investi
gate and submit to it a "statement of the evidence
obtained", if that evidence seemed to confirm the
existence of one of the facts suspected by the
Minister and used as a basis for his request for an
investigation. Seven months later, in a "statement
of evidence" which included some 292 exhibits and
to which were attached no less than 27 volumes of
transcripts of testimony, the inspector, confirming
the Minister's suspicions, made a number of alle
gations of fraudulent conduct against certain per
sons, including the applicant. Once this "statement
of evidence" had been filed and sent to all con
cerned, as prescribed by the Act (subsection
114(23)), the Commission organized hearings
during which, again as required by the Act (sub-
section 114(24)), "evidence and argument in sup
port of the statement (were) submitted by or on
behalf of the inspector" and "the persons against
whom an allegation (had) been made in the state-
ment" and "full opportunity to be heard in person
or by counsel". Thirty-three sessions or full days of
hearings, spread out over a period of more than a
year, were to prove necessary. On September 26,
1983, the Commission finally submitted to the
Minister a report of its investigation in which it
reiterated what had been said by the inspector and
made the recommendations it considered appropri
ate, as was its role.
As we know, it is this report which the applicant
is contesting and seeking to have set aside. The
practical consequences of such a setting aside are
not clear, but they are undoubtedly very serious.
Admittedly this is not a report that may have
created an individual right or obligation or had an
effect on the institution or prosecution of criminal
proceedings; under subsection 114(27) of the Act,
however, its filing is a condition precedent to the
exercise of the powers given to the Minister "to
institute and maintain or settle proceedings in the
name of the company whose affairs and manage
ment were the subject of the investigation". 9 And,
in any event, such a setting aside will inevitably
pose an extremely awkward and most difficult
dilemma for the Commission: it will have to decide
whether to abandon considerable expense and
effort undertaken in the name of the public inter
est or to incur the additional cost involved in
resuming the hearings and preparing a new report.
Aside from the question of principle, this applica
tion thus seems to me to have extremely significant
practical consequences, and I have difficulty
seeing how it could be granted other than on the
basis of a compelling argument founded on a
clearly established set of facts.
The applicant and those who, with him, were
implicated by the inspector have already used all
procedural means imaginable to obstruct the Com
mission's work: twenty-five applications brought in
various jurisdictions have already been dismissed.
Now he is bringing a motion under section 28
which, in the midst of points of argument with the
9 This Court took this into account in characterizing the
report as a "decision" within the meaning of section 28 of the
Federal Court Act (decision of January 20, 1984 dismissing the
respondents' motion to set aside).
Court did not even see fit to deal with—and which,
moreover, had already been made elsewhere
unsuccessfully more than once—raises a new, last-
minute argument. The applicant maintains that
two of the three commissioners who signed the
report—who are, to reiterate, Chairman Stoner,
Commissioner MacLellan and Commissioner
Roseman—were not present at all the hearings,
and that this is an irregularity which, in law,
irreparably vitiates the "decision" a quo and
makes it totally null and void.
The details of the absences in question are not
important in themselves, in the final analysis, but
it is useful to know the basis for the allegation and
the factual context in which the argument being
made here arises.
To establish that the three commissioners did
not attend all the sessions, the applicant first filed
the affidavit of J.A. Silcoff, counsel for one of the
individuals involved, which contained the following
statements:
4. During some of the hearing days, either Commissioner R.S.
MacLellan, or Commissioner F. Roseman were absent from the
hearing room for all or part of the hearing days in question.
5. More particularly, to my knowledge Commissioner MacLel-
lan was absent from the hearing room, inter alia, on January
24, 1983 for the entire day, on March 30, 1983 for a brief
period during the morning session and on April 5, 1983 for a
brief period during the afternoon session.
6. Also, to my knowledge Commissioner Roseman was absent
from the hearing room on December 15, 1982 for the entire
day.
He later decided to add the affidavit of I. L.
Golomb, an American lawyer who had been called
as a witness, whose affidavit stated the following:
3. I was personally present at the hearing held July 21, 1982 in
Ottawa at which I testified. I therefore have personal knowl
edge of the facts hereinafter stated.
4. To my recollection, Commissioner Roseman asked several
questions in the morning, then excused himself and left. He did
not return during the morning session nor did he return during
the afternoon session and I did not see him again although I
remained on the witness stand until the matter was adjourned
that day.
It should be said right away, in connection with
these two affidavits, that the session on December
15 referred to in the Silcoff affidavit concerning
Commissioner Roseman was not a hearing session
but merely a meeting with counsel to resolve a
number of administrative and procedural ques
tions. It should also be said that the cross-exami
nation of the attorney Mr. Golomb showed that his
memory was unreliable and that his statement
regarding the absence of Commissioner Roseman
on July 21 was clearly contradicted by the tran
script of the hearing notes made by the official
stenographers for that day.
Apart from these two affidavits, the applicant
referred to extracts from the hearing transcript
and stated the following (paragraph 29 of his
memorandum):
29. [TRANSLATION] As appears from the extracts from the
transcripts, the stenographers indicated, on the first page of the
transcript for each hearing day, which commissioners were
present at the commencement of each hearing. These extracts
show that Commissioner Roseman was absent at the com
mencement of the hearing on December 15, 1982 (Vol. 16) and
that Commissioner MacLellan was absent at the commence
ment of the hearings on January 24, 25 and 26, 1983 (Vols. 17,
18 and 19) and of the hearings on March 28 and 29 (Vols. 24
and 25);
That is all the evidence on record to establish
the absence of one or other of the commissioners
during the some thirty-three full days over which
the hearing before the Commission took place. The
exceptional nature of this application in terms of
what is at stake means that it is not possible, I
respectfully submit, to rely on suppositions or pre
sumptions with regard to the facts on which it
purports to be based, and I am of the view that the
only clearly established absences, on which the
applicant may base his claim in law, are those of
Commissioner MacLellan as attested to by the
Silcoff affidavit, namely January 24 for the entire
day, March 30 for a "brief period" during the
morning session and April 5, again for a "brief
period" during the afternoon session. I am not
overlooking the references in the transcripts to the
effect that Commissioner MacLellan was not
present at the commencement of the sessions on
January 25 and 26 and of those on March 28 and
29, but I interpret them as indicating insignificant
late arrivals, since otherwise the Silcoff affidavit
would surely have mentioned them. This then is
the factual context in which the legal argument
the applicant is making must be assessed.
The applicant's position in law is that the Com
mission was required to respect what he calls "his
right to be judged by members of a tribunal who
were present throughout the hearings". According
to him, it had this obligation as a result of the rule
that "he who decides must hear", and the slightest
failure on its part to respect this obligation fully,
which could be raised as establishing a denial of
justice or lack of jurisdiction, would result in its
proceedings and consequently the "decision" a quo
being null and void.
My brother Mr. Justice Pratte feels that this
legal argument by the applicant should be accept
ed. He rejects the suggestion by the respondents
that the application of the rule invoked is related
to the issue of whether there was a quorum of two
commissioners, which is necessary for the Com
mission to be able to act legally. Nor does he agree
that the fact the applicant decided not to be heard
by the Commission could affect his position since,
in his view, the rule invoked is not simply a
corollary of the audi alteram partem maxim, but
is truly related to the judge's jurisdiction. He
concedes that there do not seem to be any decided
cases where this rule "he who decides must hear"
has been applied to a body, such as the Commis
sion, which merely makes recommendations. How
ever, he says that in his view this rule is based on
the presumed intention of Parliament and it seems
to him, from a reading of subsections 114(24),
(25), (26) and (29), that in this case Parliament
attached so much importance to the Commission's
report that it must have intended that only those
commissioners who were present at each and every
hearing could sign it.
My own reaction to the applicant's legal argu
ments is entirely different. First, I cannot find in
the Act any presumed intention on the part of
Parliament to require compliance with the rule
invoked. It is clear that Parliament, aware of the
repercussions which anything the Commission
might say, even if it was intended merely to
express opinions and make recommendations,
could have on individual reputations, did not wish
an "investigation" report to be prepared and sub
mitted without all those concerned having had an
opportunity to be heard. It is also clear that Parlia
ment, mindful of the fact that an opportunity to be
heard can be more less explicit, chose to provide
expressly that those concerned should be able to
appear in person or by counsel and be at full
liberty to adduce evidence. It is not possible, how
ever, it seems to me, to read more than that into
the Act and find some presumed intention in its
provisions. Furthermore, if one considers only the
actual provisions one is led, I would suggest, to a
conclusion opposite to the one that would result in
an application of the rule invoked. Let us review
the provisions in question:
114....
(23) At any stage of an investigation
(a) the inspector may, if he is of the opinion that the
evidence obtained discloses a circumstance alleged under
subsection (2), or
(b) the inspector shall, if so required by the Minister,
prepare a statement of the evidence obtained in the investiga
tion, which shall be submitted to the Commission and to each
person against whom an allegation is made therein.
(24) Upon receipt of the statement, the Commission shall fix
a place, time and date on which evidence and argument in
support of the statement may be submitted by or on behalf of
the inspector, and at which the persons against whom an
allegation has been made in the statement shall be allowed full
opportunity to be heard in person or by counsel.
(25) The Commission shall consider the statement submitted
by the inspector under subsection (23) together with any
further or other evidence or material submitted to the Commis
sion, and shall, as soon as possible thereafter, report thereon to
the Minister.
These provisions refer, once again, only to the
Commission, and not to its members. It is the
Commission that receives the inspector's report, it
is the Commission that holds the hearings and it is
the Commission that reports after considering the
"statement of evidence" and any other evidence or
material submitted to it during the hearings. In all
cases it is the Commission that acts, and the
Commission needs only two members to act.
It therefore does not seem possible to me, and I
say this with all due respect for those who are of
the opposite view, to see this stringent and inflex
ible requirement invoked by the applicant in sup
port of his thesis—the requirement, I reiterate,
that no commissioner who is absent for any time at
all from the hearings held by the Commission for
the purpose of preparing a report under section
114 may participate in the preparation of that
report—as arising from the Act. Nor does it seem
possible to me to link in any way the existence of
such a requirement to the rules of natural justice
(to which that maxim of English law which is
being invoked, "he who decides must hear", is
primarily related, I think, at least in the way in
which it is applied), since the Commission is not a
court and has no adjudicative function and no
power to determine individual rights.
There remains, I submit, only one other possible
source. If the requirement invoked by the appli
cant exists, this can only be because it is a corol
lary of the right which the Act gives to all con
cerned to be heard before the Commission. And
merely realizing that this is the case decides the
matter, in my view. The requirement would then
be a requirement to give the person concerned an
opportunity to appear and to be heard orally,
throughout each of the thirty-three sessions, by the
same two members of the Commission who consti
tute a quorum, and this requirement would have
been met since the evidence, as I stated earlier,
points to a lack of continuous attendance on the
part of only one of the three persons who signed
the report. By refusing to appear at the vast
majority of the hearings, even by counsel, more
over, the applicant would obviously have waived
his right to be heard and could not complain that it
was not respected. In any event, however, I do not
believe that a requirement as stringent and rigor
ous as the one invoked by the applicant can be
regarded as a mere corollary of the right of those
concerned to be heard. Could it be seriously
argued that by allowing one of the three commis
sioners responsible for the investigation to be
absent for such a relatively short time, when every
thing that occurs during his absence is recorded
and accurately reported to him, the Commission is
infringing the right which those concerned have
under the Act to appear before the Commission to
present their evidence and arguments?
This application seems to me to be without
merit and I would dismiss it.
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.