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The Canadian Nuclear FAQ  

by Dr. Jeremy Whitlock


Published in the Globe and Mail, 2009 April 11:

Ottawa's ouster of nuclear watchdog lawful, court rules

April 11, 2009

OTTAWA – A federal court has ruled the Harper government was within its right to fire the country's nuclear safety watchdog without proving misconduct on Linda Keen's part – dismissing her effort to have her 2008 ouster declared unlawful.

The federal court of Canada ruled this week that the presidency of the Canadian Nuclear Safety Commission was not as secure a tenure as Ms. Keen had argued it was, saying the regulator served "at [the] pleasure" of the government and given this designation her removal was conducted fairly.

Reached Thursday, Ms. Keen said the ruling should send a message to other cabinet appointees about the precariousness of their positions.

"I hope some of my colleagues [in government] are paying attention to this," Ms. Keen said, adding she has not decided whether to appeal.

She said she doubts Canadians agree that independent safety regulators should be fired without proper cause.

"One would have thought that a regulatory agency of a serious thing like nuclear energy – you would have thought that would have been something that would have been independent."

It's not apparent that the ruling, which only deals with the nuclear commission's presidency, has a direct impact on the independence of other federal regulators. The law governing this commission was silent on under what conditions a president can be fired. Most other regulators are clearly legislated to hold office "at [the] pleasure" of the government or protected with more secure tenure under legislation that requires Ottawa to show cause for firing.

Ms. Keen was terminated in January 2008 after she refused to sanction the reopening of a nuclear reactor in Chalk River, Ont., where required safety upgrades had not been performed by Atomic Energy of Canada Ltd.

The reactor, which produced much of the continent's medical isotopes, was ordered back into service by Parliament in December 2007, overruling Ms. Keen's decision.

After spending eight years in her post, Ms. Keen's last months were marked by rocky relations with the Tories. When the isotope issue first came before the Commons, Prime Minister Stephen Harper branded her a Liberal partisan. At one point Ms. Keen also accused then-Natural Resources Minister Gary Lunn of interfering with her commission's independence.

Ms. Keen's legal action, filed more than a year ago, had argued that Ottawa wasn't justified in its firing because it had to meet a greater test before doing so. She said the government had to prove misconduct – which it didn't.

Unlike bureaucrats appointed to serve "at [the] pleasure" of the government, civil servants appointed by cabinet to hold office "during good behaviour" can only be fired if Ottawa proves they have fallen short on this count.

Ms. Keen had tried to make the case that she had been appointed under the "good behaviour" designation. The court acknowledged in its ruling that Ottawa would have failed in this regard if this had been the appropriate test. "If the designation of Ms. Keen as president was 'during good behaviour', it is quite clear that neither the minister nor the governor in council have provided Ms. Keen adequate information setting out the grounds upon which it was believed that she lacked good behaviour," the court said.

But Ms. Keen was unable to convince the court that her position was a "good behaviour" post. She maintained that government officials had told her the presidency was a "good behaviour" post during the job interview process. But the court ruled that Ms. Keen failed to provide sufficient evidence of this and that such discussions were not binding on Ottawa anyway.

The Harper government would only say it welcomed the ruling. "We are pleased with the ... decision which confirms that the government gave Ms. Keen the procedural fairness to which she was entitled," Jasmine MacDonnell, spokeswoman for Natural Resources Minister Lisa Raitt, said in an e-mail.

Ms. Keen's lawyers had argued that since members of the board governing the position served "during good behaviour" that the presidency was also similarly protected. But the court said it agreed with previous judgments that in similar situations the designation of the president should be "at pleasure."

Ms. Keen was not seeking to get her job back. Although she was fired from her president's job in January 2008 she remained as a member of the nuclear safety commission until September 2008, when she resigned.