Shoan out as CRTC commissioner, appealing dismissal

In a “highly unusual” move, Raj Shoan, the CRTC commissioner representing Ontario, was removed from his post by the federal government on Friday, capping off a 14-month period of legal strife between Shoan and the telecom and broadcast regulatory body. According to an order in council posted online Friday morning, the process to remove Shoan — who was appointed to his five-year term in June 2013 — began months ago, via a letter from Canadian Heritage Minister Mélanie Joly. The Feb. 26 note informed Shoan “that certain of his actions brought to her attention called into question his capacity to continue serving as a Commissioner of the CRTC, providing him with information regarding these concerns including the documentation upon which they were based, and inviting him to make any representations that he wished to have taken into account before any decision was made on whether to terminate his appointment for cause.” Shoan made his submission on March 14, the order said, prior to the governor in council making the conclusion that his “actions are fundamentally incompatible with his position and that he no longer enjoys the confidence of the Governor in Council to be a Commissioner of the CRTC.” In a statement released via his lawyer Craig Stehr Friday afternoon, Shoan said he “was disappointed” in the decision and would be appealing the order, which he said “has violated principles of natural justice and procedural law,” given that a federal court judge is set to make a decision on a workplace harassment case involving him this summer. He added that he was “resolute” in his “desire to preserve and protect the integrity of the CRTC’s decision-making and governance structure” and would “vigorously defend against any false accusations in this matter.” “Accordingly, I will shortly file for judicial review of the Governor in Council’s Order,” Shoan said. “The Privacy Act ensures that personal information of individuals held by federal government organizations is protected. Therefore, it would not be appropriate to comment further,” Pierre-Olivier Herbert, Joly’s spokesman, said in an email. Shoan has never been shy about his disagreements with the CRTC, issuing dissenting opinions to decisions made regarding mobile TV and an undue preference case against BCE Inc. He has launched two court challenges regarding chairman Jean-Pierre Blais’ ability to name commissioners to panels and filed for a judicial review of a finding of harassment against him, stemming from a claim by a senior CRTC staff member. His dismissal comes just days after a federal court hearing regarding his judicial review application during which Shoan’s lawyer leaned heavily on the fact that it was only the governor in council who had the authority to remove GIC appointees, and thus, should be the only one with the authority to reprimand them or levy other consequences. According to Shoan’s statement, he will also be filing “an interlocutory injunction pending the issuance of Justice Zinn’s decision” on the harassment matter. At Tuesday’s hearing, Zinn said he would try to hand down a decision “before September.” Former CRTC appointees said they were surprised by the government’s move. “It’s highly unusual,” Len Katz, who served as CRTC commissioner, vice-chairman and acting chairman, said in a phone interview. “I can’t recall any CRTC situation that resulted in the removal of any of the commissioners.” Former vice-chairman and interim chair Michel Arpin said he was “a bit surprised” by the process, not realizing a commissioner’s removal could come without a legislative process, and former national commissioner Timothy Denton said, in an email, that it was “unheard of to fire a commissioner.” Denton also said it was a decision the government may come to regret. “If Raj’s complaints are upheld in court… then the government may well find itself doubly embarrassed,” Denton said in a phone interview. “First of all, because they’ve had to fire a sitting commissioner and then they find out the courts side with the sitting commissioner’s point of view — if the court does that. No one, I’m sure, is completely blameless in this, but Raj is fighting a battle about the rights and responsibilities of a commissioner.” According to a copy of the terms and conditions for governor in council appointees posted online, appointments like Shoan’s have their tenure set “during good behaviour,” while the chair and vice chairs of the CRTC serve “during pleasure” of the governor in council. “Appointees who hold office during good behaviour may be removed by the Governor in Council for cause,” the Privy Council document said. “It’s a bit troubling to think that the cause could be: doesn’t agree with the chair not appointing him on panels or arguing also that it’s the telecommunications committee that should appoint members on panels, not the chair,” Arpin said. Katz noted that he’s never seen a definition of “good behaviour” as it pertains to the tenure of a GIC appointee. “But when you’re a commissioner and you’re appointed while good under behaviour, I guess somewhere someone has to define what good behaviour is and what bounds you’ve got to step across so you’re no longer serving during good behaviour,” Katz said. “And presumably, that’s the vehicle that this government seems to have taken with Raj Shoan.” Denton called Shoan’s dismissal “a tragedy.” “I know him, I know the chairman. It’s just a tragic clash of personality and principle,” he said. Shoan’s dismissal brings the number of people appointed to the CRTC to seven (one chairman, one vice-chairman and five regional commissioners), out of a possible 13 positions. There’s no ideal number to handle the CRTC workload, the former commissioners said. According to Katz, having a good balance between francophone and anglophone commissioners was important. “Because if you want to have a file dealt with that’s predominantly dealing with a Quebec situation, you want to make sure you have commissioners on staff that don’t have to worry about translation and can actually listen and understand the hearings and goings on at the hearing as well,” he said. Both Arpin and Denton pointed to the United States, where the Federal Communications Commission (FCC) gets by with only five members, though Denton said he wouldn’t necessarily want to follow their example. “Seven gets a little tight, 13 may be a little too rich, but nine or 11 might be a good number. It all really is a question of workload,” Denton said. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

Shoan out as CRTC commissioner, appealing dismissal

News | June 24, 2016

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Shoan out as CRTC commissioner, appealing dismissal

News | June 24, 2016

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