If Lord Black did not exist, he would need to be invented, if only to provide fodder for comment. Freshly sprung from time spent at the pleasure of the US government, his Lordship challenged a decision of the body that advises on appointments to (and ejections from) the Order of Canada: Black v Advisory Council for the Order of Canada, 2012 FC 1234.
Justice de Montigny concluded that while the Advisory Council was subject to judicial review, procedural fairness and natural justice did not require it to hold an oral hearing including submissions from the noble lord, although things appeared to go well for him at the start. The Council’s decision was interlocutory only (the final decision rests with the Governor General), and the usual rule is that such decisions should not be subject to judicial review except in unusual circumstances. Because the ultimate decision on his membership would probably not, as an exercise of Crown prerogative, be subject to judicial review, Lord Black’s application was not premature. Was the Council’s decision also immune from judicial review? No, and Black had a reasonable expectation that the Council would follow its stated policy on terminations. Two points for his Lordship. Where his case fell down was on procedural fairness, which under the circumstances did not require an oral hearing. The judge rejected the argument that there should be a high degree of procedural fairness because of the potential effect on Black’s reputation; in the judge’s view, there is no right to or legitimate expectation of an honour from the Crown, and no right to maintain an honour once granted. If there was anything that was going to tarnish Black’s reputation it was his convictions for fraud in the United States. His credibility was not in issue; the Council was not considering the merits of those convictions but merely assessing them as facts to be considered in making a recommendation to the GG. Black had made – and could make further – written submissions and that was really enough. The necessary level of procedural fairness was, in the end, ‘minimal’.
[Link available here].