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LAW/NET Case Summary

Digest: Black v. Advisory Council for the Order of Canada


[2013] F.C.J. No. 1284

Federal Court of Appeal
Evans, Trudel and Webb JJ.A.


Oral judgment: November 18, 2013.
(9 paras.)


   Administrative law Natural justice Duty of fairness Procedural fairness Hearings Procedural rights and requirements Appeal by Conrad Black from dismissal of application for judicial review dismissed Advisory Council for Order of Canada advised Black of intent to review his appointment due to United States criminal conviction Black requested oral hearing and Council advised he would be limited to making written submissions Factors relevant to content of duty of fairness owed to Black did not support need for oral hearing based on Council's non-judicial nature and its recommendatory function Policy on termination did not give rise to legitimate expectation oral hearing would be held prior to recommendation for revocation of appointment.

   Administrative law Bodies under review Nature of body Miscellaneous Powers or function Types Discretionary powers Review of Appeal by Conrad Black from dismissal of application for judicial review dismissed Advisory Council for Order of Canada advised Black of intent to review his appointment due to United States criminal conviction Black requested oral hearing and Council advised he would be limited to making written submissions Factors relevant to content of duty of fairness owed to Black did not support need for oral hearing based on Council's non-judicial nature and its recommendatory function Policy on termination did not give rise to legitimate expectation oral hearing would be held prior to recommendation for revocation of appointment.

   Government law Crown Authority and powers Discretionary powers Appeals and judicial review Natural justice Procedural fairness Appeal by Conrad Black from dismissal of application for judicial review dismissed Advisory Council for Order of Canada advised Black of intent to review his appointment due to United States criminal conviction Black requested oral hearing and Council advised he would be limited to making written submissions Factors relevant to content of duty of fairness owed to Black did not support need for oral hearing based on Council's non-judicial nature and its recommendatory function Policy on termination did not give rise to legitimate expectation oral hearing would be held prior to recommendation for revocation of appointment.

   Appeal by Conrad Black from the dismissal of his application for judicial review of a decision by the Advisory Council for the Order of Canada. The appellant was given written notice that the Advisory Council intended to review his appointment to the Order of Canada due to his criminal conviction in the United States for fraud and obstruction of justice. The appellant requested an in-person oral hearing, as he sought to demonstrate that the prosecution was inappropriate and would not have resulted in a conviction in Canada. The Council refused the request and informed the appellant that he was entitled to provide written submissions supported by documentation as to why his conviction did not warrant termination of his appointment. The appellant asked the Council to reconsider its decision, but the Council affirmed its position. The appellant rejected the offer to make written representations and applied for judicial review. The appellant submitted that the duty of fairness required an opportunity for an oral hearing. The court found that the interlocutory matter was reviewable given the exceptional circumstances. The court found that the content of the duty of fairness owed to the appellant was at the low end of the scale given the Council's non-judicial nature, the recommendatory nature of its function, and the absence of a legal right to appointment or legitimate expectation it could not be terminated. The court concluded that the Policy and Procedure for Termination of Appointment to the Order of Canada did not give rise to a legitimate expectation that an oral hearing would be held prior to a recommendation for revocation. Black appealed.

HELD: Appeal dismissed. For the same substantive reasons given by the reviewing court, the factors relevant to the duty of fairness did not require the Council to give the appellant an oral hearing to ensure he was afforded procedural fairness. The Council's recommendation would turn primarily on an assessment of the appellant's credibility, as it was not its function to determine whether the prosecution in the United States was proper. To the extent that credibility was an issue, there was no single factor that trumped any other in determining the content of the duty of fairness owed to the appellant.

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