December 2, 2005
A Federal Court judge has overturned the federal government's dismissal of Jean Pelletier, Chairman of the Board of VIA Rail and a key
figure in the Gomery Inquiry. The ruling was based on the fact that Pelletier had no knowledge that disciplinary action was being
contemplated, was never made aware of the reasons for the government's dissatisfaction, and was never given an opportunity to
respond to the allegations against him.

When Olympic gold medalist, Myriam Bédard, wrote a letter to Prime Minister Paul Martin on February 13, 2004 charging Jean Pelletier
with forcing her resignation as a marketing executive, and complained of "unethical behaviour" at VIA Rail, she set in train a course of
events that led to Pelletier's dismissal. In an interview with La Presse, Pelletier said: "This is a poor girl who deserves pity, who doesn't
have a spouse, as far as I know. She is struggling as a single mother with economic responsibilities. I pity her…Olympic medalists are
people who find it difficult after being acclaimed at the Olympics, when they find themselves back in the real world."

On February 27, immediately after the article was published, the federal government asked for an explanation. Pelletier issued a public
statement of apology later that day.

Two days later, the Minister of Transport, Tony Valeri, phoned to inform Pelletier that his appointment was terminated.

Pelletier brought an application for judicial review in the Federal Court requesting that the termination order be set aside because of a
breach by the federal government of his entitlement to procedural fairness.

Pelletier's application succeeded. A duty to act fairly applies, Judge Simon Noël noted, to "every public authority making an administrative
decision which is not of a legislative nature and which affects the rights, privileges, or interests of an individual."

Citing the factors used to assess whether a duty to act fairly exists, as set out in Knight v. Indian Head School.Div.19, [1990] 1 S.C.R. 653,
and noting that the government did not dispute the claim to procedural fairness, Judge Noël found that a duty of fairness was owed to
Pelletier. The nature of the decision was not legislative or general; the "at pleasure" form of appointment did not preclude procedural
guarantees, and the effect of the decision was significant, since Pelletier's employment was at stake.

Having found that a duty of fairness was owed, Judge Noël then turned to the question of whether, from the context or statements made,
Pelletier "knew or ought to have known that disciplinary action was being contemplated against him." In this regard, the evidence was
undisputed that Pelletier was only "belatedly" informed when Mr. Valeri phoned him on March 1. Noël stated: "[T]he events occurred too
quickly and in an extremely informal way, without the presence of Mr. Pelletier's counsel, and even without the possible outcomes of the
discussions having been clearly put on the table." There was no explicit mention of contemplated disciplinary measures since events
unfolded in a "sudden flurry," and the calls that did take place were so general in nature that Pelletier was left with the impression that
they were made for information gathering purposes, not to assess whether disciplinary action was appropriate.

As Pelletier lacked meaningful knowledge of the employer's intent to take disciplinary action and its reasons for doing so, his "right to
answer" was prejudiced, Noël found. There were several reasons that could have resulted in Pelletier's removal, but none was clearly
expressed; Pelletier was given little time to prepare a response, and was not able to consult his counsel in the short period of time
available. Noël determined that Pelletier was not made fully aware of the reasons for his dismissal until he read the press release
announcing his removal, and hence had no real opportunity to change the government's mind or respond to the reasons for the
government's dissatisfaction. "His right to answer was therefore compromised," Noël concluded.

Commenting that the process was "neither fair or open," and indeed was "conducted in an opaque and hasty manner," Noël declared
that Pelletier was not provided with the procedural guarantees to which he was entitled. Accordingly, the Order in Council removing
Pelletier from his position as Chairman of the Board of Directors of VIA Rail was ordered set aside and the matter was referred back to
the government.

The government has 30 days to decide if it will appeal the ruling to the Federal Court of Appeal. In the meantime, it has served notice on
Pelletier that it intends to fire him again from his $240,000-a-year job, but this time allow him to be heard before doing so. For his part,
Pelletier has sued the federal government for damages resulting from his firing.

Full text - Pelletier v. Attorney General of Canada, Federal Court of Canada - Judge Simon Noël

Full text of the Gomery Report

Source:  Lancaster House
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