OTTAWA – Raj Shoan says he will return to work Monday morning as Ontario commissioner for the CRTC after a Federal Court on Friday granted his request for a judicial review of his dismissal.
Heritage Minister Melanie Joly terminated his appointment on June 24, 2016 for a number of reasons outlined here. The minister also recently called for applications to fill the Ontario commissioner position (along with that of the chair, vice-chair broadcasting and Prairie regional commissioner)
“The Applicant’s relationship with the CRTC was a difficult one, as demonstrated by the record before me,” understates Justice Cicely Strickland in her decision.
Shoan argued that the Minister pulled the rug out from under him unfairly last June and denied him “procedural fairness and natural justice” in ending his tenure, which has been fraught with conflict with chairman Jean-Pierre Blais and other senior CRTC staffers, which culminated in a finding of workplace harassment – which was subsequently made public when Shoan filed for judicial review of that internal CRTC ruling.
The Federal Court also sided with Shoan in that case, too. Justice Russell Zinn ruled in September the third party harassment investigator had overstepped its mandate and that the CRTC chairman should not have been a witness as well as the person who approved the final report of the investigator and the corrective measures it called for.
Shoan was dismissed two days after this first case was heard and he filed for a judicial review of the revocation of his appointment by the Minister (officially, the Governor-in-Council, or GIC) before Zinn’s ruling in his favour. “This is problematic in the context of the GIC’s decision because the finding of the Harassment Investigator was referred to in the Minister’s Letter and the Summary, which underlie and form the basis of the GIC’s decision,” writes Justice Strickland.
While Shoan has indeed won the case and returned to work Monday, the 82-page decision did not come without its caveats. While justice Strickland granted the request for a judicial review, it was because “it cannot be determined, from the record, if he received a fair and impartial decision.” She went on to say there are aspects of Shoan’s conduct she found “troubling”.
The Court said it could not determine, from the record, how much weight the GIC put on the “deeply flawed” harassment report “it must be viewed in combination with the fact that the Applicant was not afforded a meeting with the Minister during which the extent of the Minister’s reliance on the challenged Harassment Report could have been addressed… or, what consideration the Minister and the GIC gave to (Shoan’s) assertion that he alone was not responsible for the lack of collegiality in the CRTC, I have concluded that the Applicant was potentially denied procedural fairness. Further, if reliance by the GIC on the Harassment Report, and related concerns of confidentiality and collegiality, was determinative, then the GIC’s decision was unreasonable. It is for that reason that I find it necessary to return this matter to the GIC for reconsideration.”
“It is also apparent that the relationship between the Applicant and the Chairperson is fraught.” – Justice Cicely Strickland
That said, Justice Strickland said the GIC could have rescinded Shoan’s appointment if the harassment report had been no factor at all. (UPDATE: The Heritage Minister's office, through spokesperson, told Cartt.ca there is "no comment from the Minister. We are still reviewing the decision.")
“For example,” she wrote, “the Applicant’s conduct pertaining to inappropriate contact with CRTC stakeholders is very troubling,” outlining two private meetings Shoan had, one with then-Shomi chief David Asch and another with Byrnes Communications' Chris Byrne – both of whom had issues facing the CRTC at the time of Shoan’s meetings. PIAC had a complaint about Shomi before the Regulator while Byrnes was hoping to get a radio station license in Burlington and was waiting on the Commission to announce its market assessment results for the region.
“The Applicant met alone with stakeholders whose applications were before the CRTC and without following CRTC practices. His public tweet about one of these meetings raised concerns from an affected party, the other meeting similarly raised concerns about the perception of fairness and neutrality,” reads Friday’s decision, referencing the record of the proceeding.
“In my view, the Applicant’s submission fails to recognize or acknowledge that the concern is the real or perceived apprehension of bias that his ex parte meetings give rise to. This concern was abundantly demonstrated by the response of PIAC to the Applicant’s meeting with Shomi. It matters not that Shomi was not the applicant, the point is that Shomi’s proposed activity was a matter under consideration by the CRTC in an application before it.”
It wasn’t just about the nuts and bolts of the Shomi and Byrnes CRTC entanglements but “the perception of fairness and neutrality,” writes Justice Strickland.
“There is a legitimate concern that the Applicant’s disregard of processes intended to protect the integrity of the CRTC displays a lack of sound judgment. It is also apparent that the relationship between the Applicant and the Chairperson is fraught.”
Nonetheless, the judicial review Shoan requested has been granted and the GIC decision to rescind his appointment has been quashed, despite the federal government’s request to suspend that part of any decision for 30 days.
“Having found that the record does not permit me to determine that the Applicant was afforded procedural fairness, this application for judicial review is granted. I am aware that the GIC’s decision on redetermination may well be the same but, based on the record before me, I am unable to determine that this is inevitable,” writes Strickland.
In a statement released to the media over the weekend, Shoan says he’s pleased with the decision. “I am grateful for the considered decision of the Federal Court and I look forward to continuing to support the important work of the CRTC,” said Shoan
“I accepted the position of Commissioner in 2013, filled with optimism for my five-year term and determination to serve my home province diligently and faithfully. As only the second person of colour and one of the youngest appointees in the history of the CRTC, I was resolved to leaving a lasting and positive mark on the CRTC. My tenure was unexpectedly interrupted, however, and I was unfortunately required to seek the assistance of the courts.
“As I return now to the CRTC, I do so with a renewed sense of optimism that justice can prevail and a determination to represent the province of Ontario with passion and integrity.”
When asked by Cartt.ca if that means he intends to return to work on Monday morning, Shoan responded with just one word:
“Yup.”
