harb application

7/28/2019 Harb Application

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,

BETWEEN:

ONTARIOSUPERIOR COURT OF JUSTICE

(Divisional Court)

MACHARB

- and-

Court file number:/j'f,21 ;3 - / 9 ~

Applicant

SENATE OF CANADA AND ITS STANDING COMMITTEE ON INTERNAL ECONOMY,BUDGETS AND ADMINISTRATION AND SUBCOMMITTEE ON LIVING ALLOWANCESOF THE SENATE STANDING COMMITTEE ON INTERNAL ECONOMY, BUDGETS ANDADMINISTRATION

Respondent

NOTICE OF APPLICATION TO DIVISIONAL COURT FOR JUDICIAL REVIEW

TO THE RESPONDENTA LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by theapplicant appears on the .following page.THIS APPLICATION for judicial review will come on for a hearing before the Divisional Court on adate to be fixed by the registrar at the place ofhearing requested by the applicant. The applicantrequests that this application be heard in Ottawa.IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or tobe served with any documents in the application, you or an Ontario lawyer acting for you must forthwithprepare a notice of appearance in Fonn 38A prescribed by the Rules of Civil Procedure, serve it on theapplicant's lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it ,with proofof service, in the office of the Divisional Court, and you or your lawyer must appear at thehearing.


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IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THECOURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you oryour lawyer must, in additional to serving your notice of appearance, serve a copy of the evidence on theapplicant's lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it,with proof of service, in the office of the Divisional Court within thirty days after service on you of theapplicant's application record, or at least four days before the hearing, whichever is earlier.IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN TO IN YOURABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THISPROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLETO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.Date

TOGary 0 'Brien, Clerk of he SenateOffice of the Clerk of the SenateThe Senate of Canada185 S Centre Block, Senate of CanadaOttawa, OntarioCanadaKIA 014

Issued by '(JJ, ~ .(9.RegistrarAddress of Divisional Court Office161 Elgin St., 2nd FI.Ottawa ON K2P 2Kl

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AND TO Attorney General of Ontario (as required by subsection 9(4) of he Judicial ReviewProcedure Act)Crown Law Office - Civil720 Bay Street8th FloorToronto, Ontario M7A 2S9APPLICATION

1 . The applicant, Mac Harb, makes an application for:a. An order in the nature of certiori quashing the decision of the Senate dated May 30,

2013, adopting the Twenty-Fourth Report of the Senate Standing Committee on InternalEconomy, Budgets and Administration (the "Committee"), which in turn had adopted areport of the Subcommittee on Living Allowances (the "Subcommittee"), finding thatthat the applicant had improperly designated his home as his primary residence and


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ordering that the applicant reimburse living and travel allowances for the period ofApril1,2011 to September 30,2012, and that an internal investigation of the applicant's travelpatterns and living expense claims be extended prior to April 1, 2011.

b. A declaration that parliamentary privilege does not apply to the preparation, drafting andadoption of the Twenty-Fourth Report by the Subcommittee, the Committee and theSenate.

c. A declaration that the Canadian Bill ofRights, SC 1960, c 44, and common lawprinciples ofnatural justice apply to the Senate and its committees when acting in aquasi-judicial capacity.

d. A declaration that the Subcommittee, the Committee and the Senate, acting in a quasijudicial capacity, breached the applicant's right under section 2(e) of the Canadian Bil l ofRights, SC 1960, c 44, to a fair hearing in accordance with the principles of fundamentaljustice for the detennination ofhis rights and obligations.

e. A declaration that the Subcommittee, the Committee and the Senate, acting in a quasijudicial capacity, denied the applicant's right to counsel under section 2(d) of theCanadian Bill ofRights, SC 1960, c 44.

f. A declaration that the Subcommittee, the Committee and the Senate breached thecommon law principles ofnatural justice in its process related to the preparation, draftingand adoption of the Twenty-Fourth Report, in finding that the applicant had improperlydesignated his home as his primary residence and ordering that the applicant reimburseliving and travel allowances for the period ofApril 1, 2011 to September 30,2012, andthat an internal investigation of the applicant's travel patterns and living expense claimsbe extended prior to April 1, 2011.

g. The Applicant's costs for this application.h. Such further and other relief as the Applicant may advise and this Honourable Court may

pennit.2. The grounds for the application are:


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a. The applicant was appointed to the Senate ofCanada in 2003 and lives in La Passe,Ontario.

b. According to Senate regulations, guidelines and policy, a senator is to be reimbursed forcertain living and travel expenses ifhis or her primary residence is more than 100kilometres from Ottawa.

c. Pursuant to Senate regulations, guidelines and policy, the applicant signed a DeclarationofPrimary Residence declaring his primary residence to be more than 100 kilometresfrom Ottawa.

d. The applicant obtained advice from the Clerk of the Senate with respect to theappropriateness of the designation ofhis primary residence.

e. For close to 9 years, all of the applicant's claims for living and travel allowances wereverified and reimbursed by the Senate administration.

f. The applicant was always transparent with the Senate administration with regard to hisDeclarations of Primary Residence and claims for living and travel allowances, whichwere never questioned.

g. On November 22,2012, the Committee created the Subcommittee to investigate mediareports with respect to living allowances of another senator, to detennine where thatsenator's primary residence was located, and to report on the matter. On December 6,2012, following media reports, the Committee delegated the identical mandate to theSubcommittee with respect to the applicant. The living allowances of a third senator werealso investigated, but no mandate was delegated to the Subcommittee. Rather, theSteering Committee of the Committee, consisting of he chair of the Committee and twoother Committee members, was responsible for drafting the report.

h. The Subcommittee hired an external, independent audit firm to conduct an audit of theapplicant's living allowances. The independent audit firm concluded that the Senate hadno criteria for determining what constitutes a primary residence and as such did not findthat the applicant had improperly designated his primary residence. Further, theindependent audit firm's account ofdays spent in Ottawa and in other locations


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confinned that the applicant spent more non-working days at his primother locations than in Ottawa.

1. The Subcommittee and the Committee arbitrarily rejected the opinion of the indept" .audit finn that there was no precise definition ofprimary residence to be applied andconcluded that the applicant had improperly claimed his home outside ofOttawa as hisprimary residence. The Subcommittee and Committee retroactively and arbitrarilydetermined that the sole criterion to determine what constitutes a primary residence wasthe number of days spent in the location. As a result, the Subcommittee and Committeeviolated the most basic tenets ofprocedural fairness.

J. The applicant did not know the standard he was to be judged against with respect to thedefinition ofhis primary residence until that standard was revealed to him in the report ofthe Committee on May 9, 2013 .

k. It was manifestly unfair, arbitrary and contrary to the principles of fundamental justicefor the Subcommittee and the Committee to develop a standard against which theapplicant would be judged and to retroactively apply that standard.

1. The applicant also had reasonable expectations that he would be afforded due processwith respect to any issue with his compliance with the definition ofprimary residence,considering that: he had obtained advice from the Clerk of he Senate with respect to theappropriateness of the designation ofhis primary residence; he was always transparentwith the Senate administration with regards to his Declarations ofPrimary Residence andclaims for living and travel allowances, and; that all ofhis claims for living allowancesand travel were verified and reimbursed by the Senate administration.

m. In preparing, drafting and adopting the Twenty-Fourth Report, the Subcommittee andCommittee, acting in a quasi-judicial capacity, also breached principles ofnatural justiceby:

1. failing to be an independent and impartial decision-maker:1. the Committee applied the independent audit firm's conclusions

concerning the lack of criteria to determine what constitutes a primaryresidence differently to the applicant than different senators;


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2. the chair of the Committee sought and obtained external advice, includingadvice from the Executive, in the preparation and drafting of the reportsconcerning senators' living expenses;

H. failing to grant the applicant proper notice of the case against him:1. the Subcommittee failed to notify the applicant of the hearing(s) where his

rights and obligations were detennined, and allow the applicant toparticipate in the proceedings;

2. the applicant was notified by an envelope left in his office after 5 p.m. onMay 8,2013, that the Subcommittee's report would be considered by theCommittee less than 90 minutes later;

3. the applicant was never given a copy of the Subcommittee's report;111. failing to permit the applicant to respond to its conclusions;

1. the Subcommittee and Committee did not allow the applicant's counsel toparticipate in any of their proceedings;

2. the Subcommittee and Committee did not call the applicant as a witness toanswer questions or explain his position. He was only invited to attend anin camera meeting of the Committee as a guest. He was allowed to askquestions and comment, but was unprepared and had no copy of theSubcommittee report to refer to;

3. the Subcommittee and Committee did not give the applicant an effectiveand meaningful opportunity to respond to the case against him, not beingable to present any evidence and his counsel not being authorized topresent case law showing the definition ofprimary residence to be fluidand contextual.

n. The adoption by the Senate of the Twenty-Fourth Report does not correct the errors oflaw and the breaches ofnatural justice committed by the Subcommittee and theCommittee. The applicant spoke against the adoption of the Twenty-Fourth Report beforethe Senate but there was no discussion or conclusion made with regard to his concerns


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raised relative to a fair hearing, the interference by the Executive, the retroactiveapplication ofnew rules, and his reliance on the advice of the Clerk of the Senate.

o. In preparing, drafting and adopting the Twenty-Fourth Report, the Subcommittee, theCommittee and the Senate were not acting in a deliberative or parliamentary function, butrather in a quasi-judicial capacity in detennining his rights and obligations.

p. When acting in a quasi-judicial capacity, the Subcommittee, the Committee and theSenate are bound by the provisions of he Canadian Bill ofRights.

q. The Canadian Bill ofRights clearly extends to the Senate and its committees acting in aquasi-judicial capacity. In adopting the Canadian Bill ofRights, Parliament recognizedthat, except if expressly stated, no law ofCanada shall be construed or applied so as todeprive a person of 'human rights and fundamental freedoms", including the right to afair hearing in accordance with the principles of fundamental justice. The Parliament ofCanada Act does not expressly declare that it shall operate notwithstanding the CanadianBill ofRights. Therefore, Parliament intended that the basic principles ofhuman rightsand fundamental freedoms contained in the Canadian Bill ofRights apply toparliamentary institutions, to the Senate and its committees.

r. Consequently, the Senate and its committees cannot act in a manner depriving anindividual ofhuman rights and fundamental freedoms guaranteed by the Canadian Bil l ofRights, including the right to a fair hearing in accordance with the principles offundamental justice.

s. The conduct ofquasi-judicial proceedings by the Senate and its committees in flagrantviolation of the basic tenets of fundamental justice, including the right to a fair andimpartial hearing under the Canadian Bill ofRights and the common law, cannot beimmune from judicial review.

t. Further, in seeking and receiving external advice, particularly advice from the Executive,the Committee and its chair have removed themselves of the scope of any parliamentaryprivilege, if applicable.

u. Judicial review is intimately connected with the preservation of the rule of law and has aconstitutional status. The Senate and its committees, acting in a quasi-judicial capacity,


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are not above the law. In this context, this honourable Court has a constitutional duty andpower to ensure that the Senate and its committee do not overreach their powers.

v. In all matters relating to the Twenty-Fourth Report, the Subcommittee, Committee andthe Senate were exercising a statutory power pursuant to the Parliament ofCanada Act.

w. The conduct and decisions of the Subcommittee, the Committee and the Senate relatingto the preparation, drafting and the adoption of he Twenty-Fourth Report, the findingthat the applicant had improperly designated his home as his primary residence and theorder that the applicant reimburse living and travel allowances for the period ofApril 12011 to September 30,2012, and that an internal investigation of the applicant's travelpatterns and living expense claims be extended prior to April 1, 2011, are thereforesubject to judicial review by this honourable Court.

x. The Judicial Review Procedure Act, RSO 1990, c J .1.y. The Rules ofCivil Procedure, RRO 1990, Reg 194.z. The Canadian Bill ofRights, SC 1960, c 44.aa. The Parliament ofCanada Act, RSC 1985, c P-I.bb. The Rules of the Senate, the Senate Administrative Rules, and internal Senate guidelines

and policies.cc. Such further and other grounds as the Applicant may advise and this Honourable Court

maypennit.

3. The following documentary evidence will be used at the hearing of the application:

a. The affidavit ofMac Harb;b. With consent of the respondent or leave of this honourable Court, the confidential

affidavit ofMac Harb containing infonnation of he May 8, 2013 in camera Committeemeeting;

c. The transcript of evidence ofwitnesses who have relevant evidence in the matters raisedby this application for judicial review;


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d. The applicant requests that pursuant to section 10 of the Judicial Review Procedure Act,the Subcommittee, the Committee and the Senate send the record of their proceedingsrelating to the adoption of the Twenty-Fourth Report to the applicant and this honourableCourt, which include, but is not limited to:

1. all documents, notes and evidence, electronic and otherwise, considered by theSubcommittee in preparing its report on the living allowances of the applicant;

11. all minutes and transcripts ofSubcommittee meetings where the applicant's livingallowances and/or travel claims were discussed;

iii. the Subcommittee report on the applicant's living allowances;

iv. all documents, notes and evidence, electronic and otherwise, considered by theCommittee in preparing its Twenty-Fourth Report;

v. the minutes and the transcript of he May 8 and 9, 2013 Committee meeting;vi. the transcripts of Senate proceedings concerning the motion to adopt the

Committee's Twenty-Fourth Report.e. Such further and other material the Applicant may advise and this Honourable Court may

permit.June 14,2013 Heenan Blaikie LLP55 Metcalfe StreetSuite 300Ottawa, ON KIP 6L5

Simon RuelJustin DuboisTel: 418.649.5491Fax: 1 866.265.9976Email: [email protected]

Lawyers for the Applicant, Mac Harb

harb application

Documents