This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In December 2011, former Prime Minister Jean Chrétien was back in the news after the Federal Court of Canada awarded him $200,000 for legal costs incurred during a court battle over biased public remarks made by Justice Gomery during a public inquiry. This case study summarizes the original trial decision that led to the $200,000 legal costs award and illustrates why decision-makers should avoid making public comments during formal proceedings.
In its June 2008 judgment in The Right Honourable Jean Chrétien v. The Honourable John H. Gomery, the Federal Court of Canada struck down the Gomery Commission’s findings relating to Jean Chrétien after concluding that Commissioner Gomery had shown bias against the former prime minister when conducting an inquiry into a Canadian federal government spending controversy known as the “Sponsorship Scandal”. The Federal Court criticized Gomery for granting media interviews, finding that Gomery made inappropriate statements during those interviews, which gave the appearance that he was pre-judging his conclusions before hearing from all key witnesses.
The judgment rendered the Commission’s findings relating to Jean Chrétien’s role in the Sponsorship Scandal null and void and served as a compelling case study showing how improper comments made by decision-makers can undermine the appearance of fairness and impartiality in formal proceedings. This case has significant crossover relevance to tender evaluation teams, since the “bias test” that was applied to Gomery was the same test that is applied to evaluation committee members when unsuccessful bidders allege bias in a contract award process.
In its first major finding, the Court determined that the significance of the issues under investigation by the Commission entitled participants to a high degree of procedural fairness:
[T]he potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation was of such serious consequence that a high degree of fairness was required.
In other words, even though the inquiry was not a formal court proceeding, participants were still entitled to “due process” standards and to be treated in an impartial manner.
The Court also stated that “procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker” and restated the often-cited test for determining the potential bias of a decision-maker:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker] whether consciously or unconsciously, would not decide fairly.
In applying the test, the Court determined that the remarks made by Commissioner Gomery during and after the proceedings reflected a reasonable apprehension of bias against Chrétien:
After reviewing the evidence placed before me on this issue, I am convinced that there is more than sufficient evidence to find that an informed person, viewing the matter realistically and practically and having thought the matter through would find a reasonable apprehension of bias on the part of the Commissioner. The comments made by the Commissioner, viewed cumulatively, not only indicate that he prejudged issues but also that the Commissioner was not impartial toward the Applicant.
By way of example, the Court noted that Commissioner Gomery granted media interviews in December 2004 when the inquiry was in recess for the holidays. During those interviews he was quoted as saying that he was “coming to the same conclusion as (Auditor General) Sheila Fraser that this was a government program run in a catastrophically bad way.”
The Court found that these remarks were premature since the hearings had not yet been completed and the mandate of the Commission was to conduct an investigation of all levels of government before making any findings.
The Court rejected the government’s arguments in defence of the remarks:
I cannot agree with the Attorney General that the Commissioner, after conducting only three of nine months of hearings, was in a position to confirm the findings of the Auditor General or to conclude that the Sponsorship Program was “run in a catastrophically bad way.” …[T]he Commissioner was not in a position to conclude that the program was mismanaged before having heard from government officials of all levels who were set to testify. This is especially so given that the Commissioner ultimately concluded that the Sponsorship Program was run out of the Prime Minister’s Office ….
The Court found that such statements gave the improper impression that the Commission had “prejudged some of the very matters it was tasked to investigate before hearing all of the evidence.”
The Court also found that Gomery’s reference to the “juicy stuff” that would be forthcoming in the testimony of senior government officials, including former prime minister Chrétien, was inappropriate. The Court found that the comment bore “a pejorative connotation to which no witness ought to have been subjected.” The Court also found that Gomery made other statements that brought his impartiality in question.
The Court took particular issue with Gomery’s widely quoted “golf ball” comments wherein the Commissioner was quoted as saying: “It’s such a disappointment that the Prime Minister would put his name on golf balls. That’s really small-town cheap, you know, free golf balls.” As the Court concluded, the statements suggested a pre-determined bias against Chrétien:
Not only was this remark a personal insult directed at the Applicant and his background, but it suggests that the Commissioner had come to the conclusion that the Applicant had acted improperly even before the Applicant appeared before the Commission to give his evidence.
At the time Gomery had defended his decision to grant media interviews:
We have also seen over the last decades an increasing pressure for judges to come out of their ivory towers to establish some sort of a relationship with the media and to permit the media to have a better understanding of what it is that is taking place in the courtrooms or before commissions of inquiry of this kind.
It was on the understanding of this evolution that led me to make – to grant certain interviews at the end of the year. I was told by representatives of the media that there was a desire to know a little bit better what was going on and what could be expected. It was in that context that these press interviews were granted.
The Court disagreed with this rationale, finding that the media focus adversely impacted the fairness of the proceedings:
I agree with the Applicant that the Commissioner became preoccupied with ensuring that the spotlight of the media remained on the Commission’s inquiry, and he went to great lengths to ensure that the public’s interest in the Commission did not wane. This preoccupation with the media outside the hearing room had a detrimental impact on the fairness of the proceedings …. [T]he media is not an appropriate forum in which a decision-maker is to become engaged while presiding over a commission of inquiry, a trial, or any other type of hearing or proceeding.
The Court ultimately concluded that the remarks to the media gave rise to a reasonable apprehension of bias that compromised Gomery’s conclusions as they related to Chrétien:
The nature of the comments made to the media are such that no reasonable person, looking realistically and practically at the issue, and thinking the matter through, could possibly conclude that the Commissioner would decide the issues fairly.
In setting aside the Commission’s findings relating to Chrétien, the Court provided a useful reminder to government decision-makers of the importance of maintaining impartiality.
