Although an employment-related ruling, the Federal Court's recent affirmation of the decision to terminate Ms. Linda Keen as President of the Canadian Nuclear Safety Commission (Commission) is worth exploring in light of its interpretation of the Commission member appointment provisions of the Nuclear Safety and Control Act.
Ms. Keen's termination arose as a result of her decision to extend what had been a routine shutdown of the Chalk River nuclear reactor. The extended shutdown came about after it was discovered that the reactor's cooling pumps were not attached to an emergency power source, as was required under Chalk River's licence. Ms. Keen had ordered the shutdown as an emergency measure, without holding a formal hearing of the Commission at which interested parties could testify and share their views. This delay in the reactor's operation led to a worldwide shortage of essential medical isotopes, which are used in the treatment and diagnosis of over 20 million patients each year.
Despite a request from the Minister of Natural Resources, Gary Lunn, to meet with Atomic Energy Canada Ltd., the Crown corporation that owns Chalk River, and despite a directive issued by the Governor in Council emphasizing the importance of the production of medical isotopes, Ms. Keen refused to lift the order to keep the reactor inactive. The issue was finally resolved when a bill was passed by Parliament to overturn Ms. Keen's decision and re-open the reactor for 120 days, after parliamentary hearings concluded that the risk from operating the reactor with a single pump was much lower than judged by Ms. Keen.
Shortly after the re-opening of the Chalk River reactor, Ms. Keen was removed as President of the Commission, although she retained her status as a full-time member of the Commission until her resignation was tendered several months later. The Minister, at the time of Ms. Keen's removal, indicated to Ms. Keen that her actions had led the Minister and Governor in Council to doubt whether Ms. Keen had the "fundamental good judgement required by the" President. According to the Minister's letter, "serious questions [had] arisen about whether the Commission, under [Ms. Keen's] leadership, could have dealt more appropriately with the risk management of the situation." In short, it was felt that Ms. Keen had overreacted to the situation in Chalk River, and had failed to consider the negative impact that a shortage of the nuclear medical isotopes would have on medical treatment and diagnosis throughout the world.
Ms. Keen then brought proceedings against the Government of Canada in Federal Court, claiming that her removal as President had been unlawful and invalid, and requesting that the order of removal be set aside. The government had argued that the issues were rendered moot as a result of Ms. Keen's resignation from the Commission. However, Justice Hughes decided that the matters should be heard, as there was the possibility of future claims by Ms. Keen, and as the issue of whether the President was appointed 'at pleasure' or 'during good behaviour' was an issue that could affect others in similar senior-level government positions.
The central issue of the proceedings was whether Ms. Keen had been appointed as President of the Commission 'during good behaviour' (as applied to full-time members of the Commission, under section 10(5) of the Act), or whether she was appointed 'at pleasure' of the Governor in Council. If it was 'at pleasure', Justice Hughes stated that the requirements of procedural fairness would have been met, as Ms. Keen had been informed that it was no longer the pleasure of the Governor in Council to have Ms. Keen as President of the Commission. However, if she was designated as President 'during good behaviour', Justice Hughes felt that Ms. Keen had not been provided adequate grounds to demonstrate why she was lacking in 'good behaviour', and that if she had been lacking in good behaviour she should not have been permitted to retain her position as member of the Commission, which the Governor in Council had in fact permitted.
Justice Hughes, in his 40 page decision, determined that the President is appointed 'at the pleasure' of the Governor in Council pursuant to the Nuclear Safety and Control Act, and therefore the Governor in Council had satisfied the requirements of procedural fairness in removing Ms. Keen as President of the Commission. In his reasoning, Justice Hughes relied in part on the official commission letter that had been issued by Her Majesty at the time of Ms. Keen's appointment. Justice Hughes stated that "…the commission [of President] as granted by Her Majesty to Ms. Keen clearly states that her appointment as member is for five years "during good behaviour" and that the designation as President is "during Our Pleasure". It could not be more clear..". Because Justice Hughes found that Ms. Keen was not appointed 'during good behaviour' - and because Ms. Keen had resigned as a member of the Commission - the question of whether Ms. Keen had demonstrated 'good behaviour' did not have to be determined.
At the time of the release of the decision, Ms. Keen had stated that she was considering whether to appeal the Federal Court's decision, as well as whether to bring a civil suit against the government. However, the 30-day period in which Ms. Keen would have been able to file a notice of appeal expired on May 8th, without any notice of appeal having been filed with the Court. Therefore, unless Ms. Keen is able to get leave from the Federal Court of Appeal to file a late notice of appeal, it seems unlikely that she will be appealing the decision of Justice Hughes. It remains to be seen whether she will commence a civil suit against the government.
This decision and the surrounding circumstances have affected the energy industry in Canada in two ways. First, it clarified that full-time members of the Commission are appointed during good behaviour, while the President is appointed at the pleasure of the Governor in Council as the representative of Her Majesty. This removes any question as to the way in which the appointment provisions of the Nuclear Safety and Control Act are to be interpreted. Second, the situation as a whole has illustrated the importance of finding a balance between safety issues and health issues (such as the production of essential medical isotopes), and the importance of ensuring that the regulatory authorities responsible are capable of finding and maintaining such a balance.
It is useful to note as well that this decision is important not just in terms of interpretation of the Nuclear Safety and Control Act appointment provisions, but also with respect to similar appointment provisions for other senior-level government assignments. Wording similar to 'during good behaviour' and 'at pleasure' is used in the appointment provisions of Acts governing various regulatory bodies, and the interpretation of 'at pleasure' and 'good behaviour', therefore, will affect regulatory bodies across Canadian government.
