Appointment revoked for failure to deliver timely decisions | Sara Blake

By Sara Blake

Law360 Canada (October 5, 2022, 11:50 AM EDT) --
Sara Blake
Sara Blake
Many in English-speaking Canada may be unaware of this decision, which is published in French. In Gagnon c. Conseil de la justice administrative 2022 QCCA 1011, the Québec Court of Appeal upheld the revocation of the appointment of a tribunal member for breach of the Code of Ethics, specifically for her repeated failure to deliver her decisions on a timely basis.

The member had been appointed by order-in-council to the Administrative Tribunal of Québec (TAQ), which is a large tribunal comprising many sections with authority to decide cases under a variety of statutes. The member had been assigned by the president of TAQ to preside at hearings of the section of social affairs (designated as the review board under the Criminal Code) and the mental disorder examination commission.

The member repeatedly failed to meet the three-month statutory deadline for delivery of decisions and failed to request extensions of time (s. 146 of the Administrative Justice Act, CQLR c J-3). Repeated efforts were made by TAQ to address her workload issues, but they did not result in any improvement. The president of TAQ filed a complaint that was heard by an inquiry committee established pursuant to the Act. After an 18-day inquiry, the committee recommended revocation of her appointment. The recommendation was accepted and the order-in-council appointment was revoked.

The committee did not base its recommendation on the member’s failure to meet the statutory deadline. Instead, it was based on her breaches of the Code of Ethics made pursuant to the Act. The committee found that she failed to meet her duty of care and did not perform her duties with honour, dignity and integrity.

The statutory options for sanctions were reprimand, suspension or dismissal. The committee found that the member was indifferent to the difficulties that her delays can cause to litigants, as well as to her colleagues whose workload was increased by her failure to fulfil her duties. It found that she preferred to blame the institution rather than accept her share of responsibility for the situation she created and that these behaviours persisted for several years, despite the help offered to her and the adjustments made to her workload. The committee noted her inability to change her behaviour and her lack of regrets. It concluded that her dismissal was warranted because her delays, together with her conduct, brought administrative justice into disrepute, and she did not have the ability to make amends to restore public confidence.

The member’s application for judicial review was dismissed by the Québec Superior Court. She was granted leave to appeal, but her appeal was dismissed by the Québec Court of Appeal.

She raised 13 grounds of appeal, including allegations that she was denied procedural fairness and of bias concerning the role of the committee’s counsel. Many of her arguments complained about minor procedural details or did not accord with the statutory process for discipline of an appointee. The court separately reviewed and dismissed every argument and concluded that the committee’s recommendation of dismissal was reasonable.

This case sets a precedent for the revocation of an appointment of a member for failure to deliver timely decisions.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients,
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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