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Court file number:

ONTARIO SUPERIOR COURT OF JUSTICE (Divisional Court)

/j'f,21

;3 -/9~ 7

BETWEEN:

MACHARB
Applicant

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

NOTICE OF APPLICATION TO DIVISIONAL COURT FOR JUDICIAL REVIEW

TO THE RESPONDENT A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the .following page. THIS APPLICATION for judicial review will come on for a hearing before the Divisional Court on a date to be fixed by the registrar at the place of hearing requested by the applicant. The applicant requests that this application be heard in Ottawa. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Fonn 38A prescribed by the Rules of Civil Procedure, serve it on the applicant'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, and you or your lawyer must appear at the hearing.

IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must, in additional to serving your notice of appearance, serve a copy of the evidence on the applicant'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 the applicant'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 YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. Date Issued by Registrar Address of Divisional Court Office 161 Elgin St., 2nd FI. Ottawa ON K2P 2Kl TO

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Gary 0 'Brien, Clerk of the Senate Office of the Clerk of the Senate The Senate of Canada 185 S Centre Block, Senate of Canada Ottawa, Ontario Canada KIA 014
AND TO Attorney General of Ontario (as required by subsection 9(4) of the Judicial Review Procedure Act) Crown Law Office - Civil 720 Bay Street 8th Floor Toronto, Ontario M7A 2S9 APPLICATION 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 Internal Economy, Budgets and Administration (the "Committee"), which in turn had adopted a report of the Subcommittee on Living Allowances (the "Subcommittee"), finding that that the applicant had improperly designated his home as his primary residence and

ordering that the applicant reimburse living and travel allowances for the period of April 1,2011 to September 30,2012, and that an internal investigation of the applicant's travel patterns and living expense claims be extended prior to April 1, 2011. b. A declaration that parliamentary privilege does not apply to the preparation, drafting and adoption of the Twenty-Fourth Report by the Subcommittee, the Committee and the Senate. c. A declaration that the Canadian Bill ofRights, SC 1960, c 44, and common law principles of natural justice apply to the Senate and its committees when acting in a quasi-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 Bill of Rights, SC 1960, c 44, to a fair hearing in accordance with the principles of fundamental justice for the detennination of his 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 the Canadian Bill ofRights, SC 1960, c 44. f. A declaration that the Subcommittee, the Committee and the Senate breached the common law principles of natural justice in its process related to the preparation, drafting and adoption of the Twenty-Fourth Report, in finding that the applicant had improperly designated his home as his primary residence and ordering that the applicant reimburse living and travel allowances for the period of April 1, 2011 to September 30,2012, and that an internal investigation of the applicant's travel patterns and living expense claims be 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:

a. The applicant was appointed to the Senate of Canada in 2003 and lives in La Passe, Ontario. b. According to Senate regulations, guidelines and policy, a senator is to be reimbursed for certain living and travel expenses ifhis or her primary residence is more than 100 kilometres from Ottawa. c. Pursuant to Senate regulations, guidelines and policy, the applicant signed a Declaration

ofPrimary Residence declaring his primary residence to be more than 100 kilometres
from Ottawa. d. The applicant obtained advice from the Clerk of the Senate with respect to the appropriateness of the designation of his primary residence. e. For close to 9 years, all of the applicant's claims for living and travel allowances were verified and reimbursed by the Senate administration.

f. The applicant was always transparent with the Senate administration with regard to his
Declarations of Primary Residence and claims for living and travel allowances, which
were never questioned. g. On November 22,2012, the Committee created the Subcommittee to investigate media reports with respect to living allowances of another senator, to detennine where that senator'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 the Subcommittee with respect to the applicant. The living allowances of a third senator were also investigated, but no mandate was delegated to the Subcommittee. Rather, the Steering Committee of the Committee, consisting of the chair of the Committee and two other Committee members, was responsible for drafting the report. h. The Subcommittee hired an external, independent audit firm to conduct an audit of the applicant's living allowances. The independent audit firm concluded that the Senate had no criteria for determining what constitutes a primary residence and as such did not find that the applicant had improperly designated his primary residence. Further, the independent audit firm's account of days spent in Ottawa and in other locations

confinned that the applicant spent more non-working days at his prim other locations than in Ottawa.
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The Subcommittee and the Committee arbitrarily rejected the opinion of the indept".. audit finn that there was no precise definition of primary residence to be applied and concluded that the applicant had improperly claimed his home outside of Ottawa as his primary residence. The Subcommittee and Committee retroactively and arbitrarily determined that the sole criterion to determine what constitutes a primary residence was the number of days spent in the location. As a result, the Subcommittee and Committee violated the most basic tenets of procedural fairness.

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

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

1. The applicant also had reasonable expectations that he would be afforded due process
with respect to any issue with his compliance with the definition of primary residence, considering that: he had obtained advice from the Clerk of the Senate with respect to the appropriateness of the designation of his primary residence; he was always transparent with the Senate administration with regards to his Declarations ofPrimary Residence and claims for living and travel allowances, and; that all of his claims for living allowances and travel were verified and reimbursed by the Senate administration. m. In preparing, drafting and adopting the Twenty-Fourth Report, the Subcommittee and Committee, acting in a quasi-judicial capacity, also breached principles of natural justice by:
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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 primary residence differently to the applicant than different senators;

2. the chair of the Committee sought and obtained external advice, including advice from the Executive, in the preparation and drafting of the reports concerning 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 to participate in the proceedings; 2. the applicant was notified by an envelope left in his office after 5 p.m. on May 8,2013, that the Subcommittee's report would be considered by the Committee less than 90 minutes later; 3. the applicant was never given a copy of the Subcommittee's report;
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failing to permit the applicant to respond to its conclusions; 1. the Subcommittee and Committee did not allow the applicant's counsel to participate in any of their proceedings; 2. the Subcommittee and Committee did not call the applicant as a witness to answer questions or explain his position. He was only invited to attend an

in camera meeting of the Committee as a guest. He was allowed to ask


questions and comment, but was unprepared and had no copy of the Subcommittee report to refer to; 3. the Subcommittee and Committee did not give the applicant an effective and meaningful opportunity to respond to the case against him, not being able to present any evidence and his counsel not being authorized to present case law showing the definition of primary residence to be fluid and contextual. n. The adoption by the Senate of the Twenty-Fourth Report does not correct the errors of law and the breaches of natural justice committed by the Subcommittee and the Committee. The applicant spoke against the adoption of the Twenty-Fourth Report before the Senate but there was no discussion or conclusion made with regard to his concerns

raised relative to a fair hearing, the interference by the Executive, the retroactive application of new 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, the Committee and the Senate were not acting in a deliberative or parliamentary function, but rather in a quasi-judicial capacity in detennining his rights and obligations. p. When acting in a quasi-judicial capacity, the Subcommittee, the Committee and the Senate are bound by the provisions of the Canadian Bill ofRights. q. The Canadian Bill ofRights clearly extends to the Senate and its committees acting in a quasi-judicial capacity. In adopting the Canadian Bill ofRights, Parliament recognized that, except if expressly stated, no law of Canada shall be construed or applied so as to deprive a person of ''human rights and fundamental freedoms", including the right to a fair hearing in accordance with the principles of fundamental justice. The Parliament of

Canada Act does not expressly declare that it shall operate notwithstanding the Canadian Bill ofRights. Therefore, Parliament intended that the basic principles of human rights
and fundamental freedoms contained in the Canadian Bill ofRights apply to parliamentary institutions, to the Senate and its committees. r. Consequently, the Senate and its committees cannot act in a manner depriving an individual of human rights and fundamental freedoms guaranteed by the Canadian Bill of

Rights, including the right to a fair hearing in accordance with the principles of
fundamental justice. s. The conduct of quasi-judicial proceedings by the Senate and its committees in flagrant violation of the basic tenets of fundamental justice, including the right to a fair and impartial hearing under the Canadian Bill ofRights and the common law, cannot be immune from judicial review.
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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 parliamentary privilege, if applicable.

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

are not above the law. In this context, this honourable Court has a constitutional duty and power 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 and the Senate were exercising a statutory power pursuant to the Parliament of Canada Act. w. The conduct and decisions of the Subcommittee, the Committee and the Senate relating to the preparation, drafting and the adoption of the Twenty-Fourth Report, the finding that the applicant had improperly designated his home as his primary residence and the order that the applicant reimburse living and travel allowances for the period of April 1, 2011 to September 30,2012, and that an internal investigation of the applicant's travel patterns and living expense claims be extended prior to April 1, 2011, are therefore subject to judicial review by this honourable Court. x. The Judicial Review Procedure Act, RSO 1990, c J .1. y. The Rules of Civil Procedure, RRO 1990, Reg 194. z. The Canadian Bill ofRights, SC 1960, c 44. aa. The Parliament of Canada 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 of Mac Harb; b. With consent of the respondent or leave of this honourable Court, the confidential affidavit of Mac Harb containing infonnation of the May 8, 2013 in camera Committee meeting; c. The transcript of evidence of witnesses who have relevant evidence in the matters raised by this application for judicial review;

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 proceedings relating to the adoption of the Twenty-Fourth Report to the applicant and this honourable Court, which include, but is not limited to:
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all documents, notes and evidence, electronic and otherwise, considered by the Subcommittee in preparing its report on the living allowances of the applicant;

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all minutes and transcripts of Subcommittee meetings where the applicant's living allowances 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 the Committee in preparing its Twenty-Fourth Report; v. the minutes and the transcript of the 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 LLP 55 Metcalfe Street Suite 300 Ottawa, ON KIP 6L5

Simon Ruel Justin Dubois Tel: 418.649.5491 Fax: 1 866.265.9976 Email: sruel@heenan.ca

Lawyers for the Applicant, Mac Harb