Sunday, April 12, 2009

Keen burned by Federal Court

"Tories justified in firing nuclear watchdog, federal court rules." Thud. This one hurts the cause of independence in our system of administrative tribunals:
The Federal Court of Canada this week dismissed Linda Keen’s case, which argued that her 2008 firing as president of the Canadian Nuclear Safety Commission was unlawful because the government did not prove misconduct or due cause.
Keen’s lawyers contended that the fundamental issue for the court is whether the federal cabinet can dismiss the head of an independent, quasi-judicial tribunal because she refused three ministerial directives to “illegally” restart an aging isotope-producing reactor at Chalk River before its operational safety could be demonstrated.

In dismissing the case, the court ruled that her removal from the presidency was fair.
The report unfortunately doesn't go into detail on the court ruling. But without having the benefit of the decision, one can speculate that the decision by Parliament to override Ms. Keen may have been a key factor in leading the court to its decision:
Keen was fired from the commission’s top job by the Harper government in January 2008 after the commission forced a shutdown at a Chalk River reactor that produces vital isotopes for medical uses.

The ensuing four-week shutdown caused a critical shortage of life-saving medical isotopes and prompted the government to persuade Parliament to override the nuclear regulator and allow the reactor to be restarted. At one point during debate in the House of Commons, Mr. Harper characterized Ms. Keen as a Liberal party hack.

A month later, the government fired her as commission president in the middle of the night, stripping her of her 2005 order-in-council appointment, which was a five-year renewal of her original 2000 appointment. She was instead demoted to full-time commissioner, what she called an “artificial creation.”
None of the principals in the whole Chalk River shutdown have fared well in the aftermath. Former interfering Minister of Natural Resources Gary Lunn's been effectively demoted from the front benches, no doubt due to his role in this affair. Harper's role in this mess is destined to be remembered for his tarring of Ms. Keen as a partisan hack, under protection of the House of Commons, tainting his leadership on this issue and causing a lingering stain to remain upon the government's action in firing her. The Conservative record in failing to properly oversee AECL and its management at Chalk River is part of history too.

The report states that Keen is considering an appeal, although the case has cost her $100,000 thus far.

Update (Sunday p.m.): Missed this Globe fail! The decision came down to the difference between a regulator who serves "at the pleasure" of the government or one who can only be fired for cause, i.e., not living up to the "during good behaviour" standard. The legislation applicable to Keen's position is silent on the appropriate standard and the court read in the "at the pleasure" of the government standard. Meaning that the head of the CNSC, the nuclear regulator and a quasi-judicial tribunal, an independent agency within the government, can be fired "at the pleasure" of the government, without cause. That does not make sense and and clearly, there's a need for an amendment to that act.