The Commission of Inquiry appointed to examine the blood system after thousands contracted HIV and Hepatitis C from blood and blood products held exhaustive hearings governed by rules of procedure agreed to by all parties. Twenty-five interested parties were granted standing. The Baxter Corporation did not seek standing but subsequently participated in the proceedings by supplying relevant documents and providing witnesses. The Commission, on the final day of scheduled hearings, sent out confidential notices that the Commission might reach certain conclusions based on the evidence before it, that these conclusions might amount to misconduct with the meaning of s. 13 of the Inquiries Act, and that the recipients had the right to respond as to whether the Commissioner ought to reach these conclusions.
A number of the recipients of notices brought applications for judicial review in the Federal Court. That court declared that no findings of misconduct could be made against 47 of the applicants for judicial review, but otherwise dismissed the applications. Many recipients whose notices were not quashed appealed. The Federal Court of Appeal quashed one notice but dismissed the remaining appeals.
- Did the Commissioner exceed his jurisdiction by the nature and extent of the allegations of misconduct set out in the notices?
- If the Commissioner originally had such jurisdiction, did he lose it by failing to provide adequate procedural protections or by the timing of the release of the notices?
- Should counsel for the Commission be prohibited from taking part in the drafting of the final report because of their receipt of confidential information not disclosed to the Commissioner or the other parties?
Cory, writing for the court, held that while a commission of inquiry is not a court or tribunal and has no authority to determine legal liability (as it does not necessarily follow the same laws of evidence or procedure that a court or tribunal would observe), the primary purpose of a commission of inquiry is to make findings of fact. A commissioner therefore has the power to make all relevant findings of fact necessary to explain or support any recommendations, even if these findings reflect adversely upon individuals. A commissioner should, however, endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability for the public perception may be that specific findings of criminal or civil liability have been made. Further, a commissioner may make findings of misconduct based on the factual findings, provided that they are necessary to fulfill the purpose of the inquiry as it is described in the terms of reference. A commissioner may in addition make a finding that there has been a failure to comply with a certain standard of conduct, so long as it is clear that the standard is not a legally binding one such that the finding amounts to a conclusion of law pertaining to criminal or civil liability.
Cory held that because of the potential adverse effects of findings of fact, a commissioner must ensure that there is procedural fairness in the conduct of the inquiry. This principle of fairness must extend to the notices of misconduct under s. 13. However, if the notices are issued in confidence to the recipient, they should not be subject to as strict scrutiny as the formal findings because their purpose is to allow parties to prepare for or respond to any possible findings of misconduct. The more detail included in the notice, the greater the assistance to the party. The only possible harm would be to a party's reputation and this could not be an issue if the notices are released only to the party against whom the finding may be made. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, it must be assumed that commissioners will not exceed their jurisdiction.
Applying these principles to the case at bar, Cory concludes that the Commissioner did not exceed his jurisdiction. The potential findings were within the broad mandate given to the commission, to review and report on "the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining... the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada". He concluded that this challenge was premature - the appellants should have waited until the release of the report and challenged the scope at that point, not based on the notices received.
Turning to the procedural protections, the appellants argued that the comments made by the Commissioner at the inquiry gave them assurances that he would not be making findings of the sort alleged in the notices; had they thought such findings would be forthcoming, they would have demanded different procedures. Cory held that the three corporate appellants were not uninformed bystanders, but rather had full knowledge of the blood system and the tragedy under investigation, this it was not credible that they would be surprised at the critical language. Moreover, the procedural protections granted to all the appellants were "eminently fair". On the timing of the notices (they were sent out on the last day of hearings), Cory disagreed with the argument that the appellants could no longer cure the prejudice created by the notice. The notice here was not of the type to provide a "case to meet" as in a criminal proceeding. In light of the nature of the inquiry, it was impossible to give notice before all the evidence had been heard, and in this context, the late notices were not unfair. As additional time was given for the appellants to adduce additional evidence, this did not constitute a violation of procedural fairness.
- A commission of inquiry is not a court or tribunal, and has no authority to determine legal liability, and thus should endeavour to avoid setting out conclusions that are couched in the specific language of criminal culpability or civil liability.
- A commissioner must ensure that there is procedural fairness in the conduct of the inquiry.
- Timing of notices depends on the circumstances of the case; the more extensive and complex the evidence is, the more likely (and the more acceptable) it is that the notices will be closer to the end of the inquiry.
- Notice must be given long enough before the date of the proposed hearing to give the party enough time prepare.