[1] This is an application for judicial review of a decision rendered on January 25, 2002 by Joseph W. Potter, Vice-Chairperson of the Public Service Staff Relations Board, sitting as an adjudicator. The decision concerned Dr. Haydon's grievance of a ten day disciplinary suspension, imposed following publication of her remarks in The Globe and Mail on February 9, 2001 to the effect that the ban on the importation of Brazilian beef was "more a political move than a health one for the Canadian government", as she did not "think there's any difference [in risk] between Brazilian beef and Canadian beef". Although the adjudicator decided there was a basis for some discipline, the suspension was reduced to five days.
BACKGROUND
[2] The applicant is a Drug Evaluator in the Bureau of Veterinary Drugs (BVD) at Health Canada, a position she has held since 1983. She holds a doctor of Veterinary Medicine degree from the Western College of Veterinary Medicine at the University of Saskatchewan. Prior to commencing work as a Drug Evaluator, she practised as a Veterinarian in Alberta, Saskatchewan and Ontario. All ten years of practice prior to beginning her work at Health Canada were spent working directly with food-producing animals, particularly cows. As part of her continuing education as a veterinarian and because of her specific work in the BVD, she has maintained an interest in the subject of bovine spongiform encephalopathy (BSE), commonly known as mad cow disease, and in transmissible spongiform encephalopathies (TSEs) more generally.
[3] In 1998, Canada developed a policy to the effect that live animals would not be permitted to enter Canada from a country where mad cow disease was found, or from a country where risk factors for mad cow disease had been assessed. Brazil was one of six countries asked to provide Canada through Dr. Evans, Chief Veterinary Officer and Executive Director of the Canadian Food Inspection Agency (CFIA), with information so that a risk assessment could be conducted. By December 2000, Brazil had supplied some of the information Dr. Evans felt was needed, but not all of what he sought. Then, on January 26, 2001, the United Nations Food and Agriculture Organization (FAO) issued a press release in Rome, advising all countries to be vigilant about importing animals with mad cow disease. On January 30, 2001 in response to the press release issued by the FAO, Brazil issued their own press release which contained contradictions with respect to some of the information Dr. Evans had obtained from them in his earlier questionnaire related to the risk assessment.
[4] The essence of this, as far as Dr. Evans was concerned, was that Brazil did not have significant import controls over the animals they had imported from other countries. Due to the fact Brazil had imported animals from countries where mad cow disease was prevalent, and Brazil could not isolate where those imported animals were situated, Dr. Evans felt immediate action needed to be taken. He consulted with European colleagues, who expressed concern that cattle imported to Brazil may have come from contaminated farms, and American and Mexican colleagues who expressed similar concerns and wanted to move in unison with Canada to protect the North American public. On February 1, 2001, Dr. Evans recommended to the Minister of Agriculture and Agri-Food to suspend the importation of at risk products, including canned beef and beef extract, from Brazil.
[5] Following Canada's action, 32 other countries took the same approach.
[6] A decision such as the ban necessitated meeting with a number of other Government departments that had a related interest. Included in these discussions was the Department of Foreign Affairs. They had expressed some concern with respect to the timing of the issuance of the ban. At that point in time, there were ongoing discussions with the World Trade Organization (WTO) concerning the commercial dispute in which Canada and Brazil were embroiled with respect to two aircraft manufacturers. The two companies were Bombardier in Canada and Embraer SA in Brazil.
[7] The coincidence in relation to the timing of the ban and the commercial dispute was acknowledged by the Government and by no means was it ignored. In fact, a secret document entitled "Communications Approach Suspension of Importation of Animal Products from Brazil and Potential Recall of Imported Brazilian Products" recognizes that strong rationales should be provided to explain the timing of these actions. It provides as follows:
(...)
Trade issues
The timing of the suspension of importation of animal products from Brazil is necessary but unfortunately may be perceived as a retaliatory measure resulting from Canada's dispute with Brazil over issues in the aerospace industry.
Strategic Consideration: To position this issue internationally as action taken by Canada for public health reasons, not trade reasons. To emphasize that Brazil is not being singled out but that in fact, it is the only country that has not complied with Canada's requests for information to determine BSE status. To indicate that Canada has provided Brazil with ample time to comply , but that it recent new evidence on BSE requires Canada to take responsible and prudent action immediately.
NAFTA partners should be informed to facilitate a uniform approach to this issue. Their positions should be monitored and additional actions taken as required.
(...)
[8] Health Canada was involved in the decision to suspend the importation of Brazilian beef in that Health Canada sets the policies and standards that are implemented by the CFIA. The policy developed in this case was developed by experts in Health Canada in conjunction with CFIA employees. However, the applicant was not part of the group consulted. It was confirmed before the adjudicator that the decision to suspend the importation of Brazilian beef was taken by CFIA and not Health Canada.
[9] On February 7, 2001, Dr. Evans spoke to his Brazilian counterpart and decided that there was a need to go to Brazil in order to conduct a site assessment. It was then decided that a multi-disciplinary team would go with representatives from Canada, the United States and Mexico. The team was to depart from Canada on February 13, 2001.
[10] On February 8, 2001, the applicant received a phone call at home from Mark MacKinnon, a reporter with The Globe and Mail, who wished to asked her questions about the ban imposed on Brazilian beef. A conversation took place between Mr. MacKinnon and the applicant during which she informed him of her health and safety concerns regarding BSE. However, as we will now see, those concerns were not reproduced in the article published the next morning, that is on February 9, 2001.
[11] That day, one could read on the first page of The Globe and Mail "Mad-cow ban on Brazil a 'ruse', scientists say". The article in question provided as follows:
Federal experts say politics, not safety, prompted Ottawa to halt beef imports
BY MARK MacKINNON, OTTAWA
Canada's controversial ban on Brazilian beef is a ruse motivated by politics and a trade war rather than health concerns, two senior Health Canada scientists say.
In interviews with The Globe and Mail, they said there is no sustainable argument for singling out Brazilian beef products ahead of those imported from other countries. One of them added that the ban was decided upon by managers without consulting the scientists who actually study the beef.
"There was no consultation with us, the scientists", said a senior scientist close to the file who asked not to be named. "Brazilian beef poses no danger that we know of. No more than any other country. Why not Australia, Argentina, India or any other country we import beef from? Why is Brazil picked on? It's the trade war."
Last week, Canada banned Brazilian beef products, citing a "theoretical risk" that they could be contaminated with mad-cow disease. While Brazil has never had a case of the disease, Canada had one in 1993.
In fact, some experts say Brazilian beef is among the safest in the world, because many of its herds have been grass-fed since as far back as 1983. Mad-cow disease technically known as bovine spongiform encephalopathy, is spread through feeding animals parts of dead animals. The practice was legal in Canada until 1997.
"What happened with the Brazilian beef was, in my opinion, a ruse," the senior scientist said.
"They already had a fight going on with Brazil because of the plane thing and the WTO. They felt they may as well hit Brazil with this, since we don't import very much beef from them anyway".
He said Health Canada also benefits from the perception that it is taking action to counter the spread of mad-cow disease.
Margaret Haydon, a Health Canada scientist once reprimanded for speaking out about internal pressures to approve a controversial bovine growth hormone, also said she believes the ban has nothing to do with health concerns.
"In my opinion, I don't think there's any difference [in risk] between Brazilian beef and Canadian beef. With the aircraft dispute, it's more a political move than a health one for the Canadian government".
The ban has sparked an uproar in Brazil, which believes the move is related to a continuing trade dispute between the two countries over subsidies to Montreal-based jet maker Bombardier Inc. and its Brazilian rival Embraer SA.
The affair has made Canada a target of resentment in the South American country. Restaurant owners have begun displaying signs advertising that they don't sell Canadian food, and have been dumping Canadian whisky out by the bottle.
Brazilian politicians are considering blocking the import of Canadian goods, and are talking about backing out of a proposed free trade agreement of the Americas because of the ban and the aircraft dispute. Brazil is also considering suing Canada at the International Court of Justice in The Hague.
Protesters in Brasilia delivered a cow to the Canadian embassy yesterday and offered to barbecue it to prove it safe. The embassy's business attaché, Jose Herran-Lima, said he would hold off on the barbecue until Canada is sure Brazil is free of mad-cow disease.
Industry Minister Brian Tobin, embroiled in the Brazil file since he announced $2-billion in new subsidies to Bombardier last month, said yesterday that the trade dispute and the beef ban aren't connected.
"I think it's important the people of Brazil appreciate that. It's purely a food issue, purely a safety issue".
While Canada only imports about $10-million worth of Brazilian beef annually, most of it canned, the ban has been damaging. The United States and Mexico, Canada's free-trade partners, were obliged to follow suit, though both have since announced they're reviewing the ban.
Micheal McBain, the national coordinator for the Canadian Health Coalition, said that if Canada was serious about cracking down on BSE, it would have introduced much broader measures than simply targeting Brazilian beef. He pointed out that according to Statistics Canada, Canada imported 2.8 million kilograms of meat products between 1996 and 2000 from European countries known to have mad-cow outbreaks.
"This move against Brazil has no credibility whatsoever as a health measure. They picked a country way down the risk list - you can't get safer meat," he said. "All the evidence points to this being a trumped-up pretext."
With a report from Agence France Presse
(my emphasis)
[12] As we can see, although the applicant is referred to as "a Health Canada scientist once reprimanded for speaking out about internal pressures to approve a controversial bovine growth hormone", this article does not directly deal with the applicant's concerns with respect to TSE. The article focusses on the trade dispute with Brazil and questions about whether or not the ban is a pretext. That being said, the applicant admits that the aforementioned article accurately reported the two remarks she made in response to Mr. MacKinnon's questions. Before the adjudicator, the applicant explained that the article in question did not refer to comments she had made at much greater length about her health and safety concerns. In fact, the applicant submitted that her statements were taken out of context. She was not interested in discussing Brazilian cattle with Mr. MacKinnon. Rather, she expressed concerns about the many products that are imported into Canada that contain products of cattle origin, and that are difficult to trace, or for which little is known of their source. For instance, the applicant explained that she told Mr. MacKinnon that gelatin from cattle may be used in medical products, in gelatin capsules surrounding drugs, and in the manufacture of candies and foods. Vaccines, beef broth, foetal calf serum, specialty sausages using brain tissue as the binding agent, and many other products may contain beef products of which we are unaware. Often we don't know the source of this beef.
[13] It is not surprising that the applicant's concerns about BSE or TSE's were not reproduced in the article in question. At the time the latter was published, the subject of Brazilian beef had become a topical one due to the decision made a few days before to suspend its importation. That being said, the applicant was not a member of the science team assembled by Health Canada to assess the impact of the infectious diseases in question and the Division where she worked was not responsible for such assessment. The applicant nevertheless agreed to publicly comment on the appropriateness of the ban.
[14] In light of Dr. Haydon's comments referred to above, which were published on February 9, 2001, the Chief Veterinary Officer for the United States called Dr. Evans and questioned Health Canada's initial position and this new view. Dr. Evans indicated that he had not received anything from Health Canada retracting their support; therefore, their official position had not changed. Also, the Chief Veterinary Officer with the Brazilian Government contacted Dr. Evans and sought to cancel an upcoming trip because the concerns appeared not to be health related. Dr. Evans explained to his Brazilian counterpart that the trip was essential in order to complete a site evaluation and determine if Canada should reconsider its action. Before the adjudicator, Dr. Evans testified that a number of technical staff, who would have otherwise been preparing for the upcoming February 13, 2001, trip had to be diverted to deal with the deluge of briefing notes prepared for the Minister in light of the applicant's comments in The Globe and Mail. Upon arriving in Brazil, there was a need for security arrangements for the multi-purpose team and Dr. Evans himself was provided with a security guard for his hotel. He had to be moved to another hotel for his safety.
[15] On February 12, 2001, as a result of the comments attributed to Dr. Haydon in The Globe and Mail article, Diane Kirkpatrick, the individual in charge of the Division where the applicant worked, asked her to attend a meeting, the purpose of which was to determine whether or not the quotes attributed to her in The Globe and Mail were accurate and to hear the explanations of the applicant. This was not the first time the applicant's comments were reported by the press or that she has been disciplined as a result of positions she has expressed publicly.
[16] On June 11, 1998, the applicant and one of her colleagues, Shiv Chopra, were interviewed on Canada AM, a national television show which is broadcast in the mornings on the CTV network. During the interview, they expressed serious concerns regarding the drug review process and the impact these problems could have on the health of Canadians. Some two weeks after the interview, Mr. Chopra was reprimanded while the applicant received a letter of instruction requesting her to adhere to the departmental policy and procedures regarding contact with the media. It appears that at that time she had indicated to her employer that she had been approached by the producers of the television program and that she was unaware of Government policy and procedures regarding contact with the media. The two grieved. The applicant contended that the letter of instruction amounted to a written reprimand and a retaliation against her rights and obligations as a public servant. Both grievances were denied by the Associate Deputy Minister who ruled that, even though public servants do enjoy freedom of expression, they do not have a licence to publicly and unreasonably criticize the manner in which Government departments discharge their responsibilities. On September 5, 2000, this Court allowed their application for judicial review. The decision of the Associate Deputy Minister was set aside and the matter was referred back to him with the direction that he consider their grievances in accordance with the reasons of this Court (Haydon v. Canada, [2000] F.C.J. No. 1368 (F.C.T.D.) (QL), (2000), 192 F.T.R. 161). I will comment later on this decision in the analysis section of the present reasons.
[17] After the June 1998 interview on Canada AM, the applicant continued to publicly express concerns regarding health and safety matters related to the use of growth hormones and the inspection of beef products. Just a few months before the publication of The Globe and Mail article, in an article in La Presse dated November 23, 2000, the applicant is referred to as an expert who maintains that scientists are being pressured to approve products and expresses the view that she only eats beef that comes from a small organic farm. In Le Devoir on November 24, 2000 the applicant expressed concerns regarding the use of growth hormones in Canada which are banned in Europe. Concern was also expressed that Health Canada was ignoring the advice of its experts. In a story dated January 7, 2001, the applicant queried why we should have carcinogens in our food when they do not cause any benefits. The story raised concerns regarding the fact that certain beef is banned in Europe but not in Canada. Apparently, none of these more recent reported statements have resulted in any disciplinary action against the applicant. Before the adjudicator, the applicant testified that the fact that she was not disciplined in these cases led her to believe that the employer would not object to the statements that she made to The Globe and Mail in February 2001.
[18] Coming back to the February 12, 2001 meeting, Ms. Kirkpatrick indicated at the conclusion that she would review the information and advise the applicant as to what would happen. Ms. Kirkpatrick ended up suspending the applicant for a period of 10 days. The letter of suspension dated February 20, 2001 states in part:
(...)
The article quoted you saying, "In my opinion, I don't think there's any difference [in risk] between Brazilian beef and Canadian beef. With the aircraft dispute, it's more a political move than a health one for the Canadian government."
On February 12, 2001, you were provided the opportunity to explain the circumstances surrounding your decision to speak to the media. You were given the opportunity to bring forward any information or evidence on this subject. You confirmed that you had made the statement but you did not provide any information or evidence to support this statement. In fact during this meeting, you would not respond to a number of direct questions about any possible scientific concerns relating to the government's decision to suspend importation of beef and beef products form Brazil. In answer to my question as to how your statement relates to safety and health of the public, you answered that "... nothing was done regarding other products" and that you have many concerns about safety, but provided no example or detail.
(...)
You have provided no information or evidence to indicate that you were speaking out on a matter that would jeopardize the life, health or safety of Canadians. Indeed, your statement in the press suggests that health is not the issue. You have not provided me with any information to allow me to find that your action was appropriate speech by a public servant within the meaning of the law. You are a Health Canada scientist. The nature of your position as a drug evaluator with Pharmaceutical Assessment Division of the Bureau of Veterinary Drugs involves matters that are important and sensitive. Your position is what made your remarks newsworthy. Notwithstanding the fact that you were not involved in the government's decision and were speaking about a subject outside of your area of expertise as a drug evaluator, your comments to the media leave the impression with the public that you have special knowledge because of your position. Your action impact negatively on your ability to perform impartially and effectively the duties of drug evaluator in the public service and on the public perception of that.
(...)
As you know, the duty of loyalty owed by public servants to their employer was recognized by the Supreme Court of Canada in Fraser v. P.S.S.R.B. and was recently confirmed by the Federal Court in Chopra v. Canada; Haydon v. Canada. Those decisions discuss the balance to be struck between the maintenance of an impartial and effective public service and employees' freedom of speech, and identify the circumstances in which public criticism of the employer might be acceptable. You have failed to show that your comments to the media come within any of the exceptional circumstances.
(...)
After a review of this matter, and having taken into account your representations on February 12, I find this type of willful misconduct unacceptable. This was a highly visible criticism of Government action with both domestic and international implications. Your action was inconsistent with your responsibility as an employee of the Government. It erodes the necessary employer/employee relationship and is in disregard of your duty of loyalty.
[19] Before the adjudicator, the applicant requested that the suspension be rescinded, that she be reimbursed all lost salary and benefits with interest, that all related documents be destroyed and finally, that she be compensated for any and all expenses incurred.
THE ADJUDICATOR'S DECISION
[20] The adjudicator partly allowed the grievance. After reciting the facts and reproducing the parties' positions, the adjudicator provided his reasons for doing so. His rational can be summarized in the following manner.
[21] First, the adjudicator considered that before raising publicly a matter critical of Government policy, the applicant should have raised the matter internally, relying on what had been said by Madam Justice Tremblay-Lamer in Haydon, supra. At paragraphs 74, 78 and 79 of his decision, the adjudicator made the following findings.
In my view, the Court [in Haydon, supra] stressed that internal mechanisms are to be used initially before a public servant should contemplate going public with criticism of Government policy. In other words, the first avenue for a public servant to follow when raising a matter critical of Government policy is to raise it internally.
(...)
Counsel for the grievor states: "...nothing which Health Canada could have done internally would have been able to address her concerns." Unfortunately, we will never know if that is true or not because Dr. Haydon chose not to raise the matter internally. However, it is not, in my view, up to the employee to assess whether or not the employer can address this concern. Rather it is up to the employee to raise his/her concerns internally, and then engage in a full discussion with the employer on the issue.
Consequently, the issue of whether or not this comment fell within the area outlined by the courts as one that permitted public comment, does not need to be reviewed here, in my opinion, because the first prerequisite set down in the decision of Madam Justice Tremblay-Lamer has not been met, namely an attempt to resolve the issue internally.
[22] Second, he considered that the reported statements were not related to health and safety in view of the fact that the applicant mentioned on the contrary that the ban imposed is rather a political move. Therefore, the adjudicator found that the reported statements did not fall within the exception to the duty of loyalty rule as outlined by Chief Justice Dickson in Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 (S.C.C.) at paragraph 41. As a result, the adjudicator found that there was an act of culpable misconduct committed, and as such, disciplinary sanction was appropriate.
[23] At paragraphs 80, 81, 82, 83 and 87, the adjudicator stated:
However, if I am wrong in reaching [the] conclusion [that the internal mechanisms had to be used initially], I would have concluded that the statements Dr. Haydon made did not fall within the exception to the duty of loyalty rule, as outlined by Chief Justice Dickson in Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455, at page 470, which states:
... And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies...
The statements made by Dr. Haydon in this case indicated, in fact, she believed health and safety were not involved, but rather it was a political move on the part of the Federal Government to ban Brazilian beef. In fact, as the evidence from Dr. Evans showed, it was very much a health and safety concern. Therefore, Dr. Evans' statements related to health and safety, while Dr. Haydon's statements, in substance, did not.
Having found that, I conclude that there was an act of culpable misconduct committed by Dr. Haydon and as such some disciplinary sanction was appropriate.
The grievor's counsel argues condonation of similar statements. It is advanced that because previous public statements attracted no discipline, this should not attract discipline as well. Quite frankly I do not see any similarity to the facts of this case and the examples put forward of other Health Canada scientists speaking out on issues. This situation involves an employee who has not used any internal mechanisms to address her concerns. Furthermore, the statement was not one which, in my view, feel into the Fraser (supra) exception. Dr. Haydon stated, in fact, it was not a health issue. The examples cited by the grievor's counsel when arguing condonation all related to issues of a health concern.
(...)
The evidence revealed that the comments made by Dr. Haydon and the unnamed scientist had a damaging effect with respect to the decision to ban Brazilian beef. In my view, someone who lends his or her name to a public statement carries the first that there will be more or less weight attributed to that statement depending on the expertise of the person to whom the statement is attributed. Dr. Haydon's name carried, in my view, significant weight in this case. In my view, it carried more weight that an "anonymous source". She was a scientist with Health Canada saying this was not a health issue. At the very least, this would have caused confusion among members of the public, and it certainly led to disruption within the Department. Members of the multi-disciplinary team had to be diverted from planning their trip to Brazil to, instead, preparing ministerial briefing notes. Security was a major concern for the multi-disciplinary team when they actually travelled to Brazil.
[24] Third, the adjudicator found that in light of the particulars surrounding the release of the information to the press, the level of discipline assessed was excessive. While the applicant should not have issued public criticism about the policy to ban Brazilian beef, she did not initiate contact with the media. They contacted her. Therefore, this fact mitigated to some extent the sanction imposed. In light of all the evidence presented to him, the adjudicator found that the disciplinary penalty of five days without pay would be more appropriate in the circumstances as it would send an appropriate message that public criticism of Government policy in these circumstances was not appropriate and, hopefully, would be sufficient to be corrective. As such, the applicant was reimbursed for five days of lost wages.
GROUNDS OF REVIEW
[25] The applicant now asks this Court to review the decision rendered by the adjudicator on a number of grounds:
(a) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction when he concluded that the applicant ought to have exhausted internal recourse without ruling upon the applicant's position that no internal recourse was available to address her concerns;
(b) The adjudicator erred in law when he concluded that the comments made by the applicant did not fall within the class of public speech which is permissible for a public service employee;
(c) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction by not addressing the applicant's position that the disciplinary action was inappropriate having regard to the fact that another employee had spoken publically on the same issue but was not subject to discipline;
(d) The adjudicator erred in law by concluding that the employer had not condemned similar statements which would have led the applicant to believe that the action she took was appropriate;
(e) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction by not squarely considering and addressing the very basis upon which the employer sought to justify the disciplinary action;
(f) The adjudicator erred in law and wrongfully exercised his jurisdiction by not having proper regard to the protection of freedom of expression contained in the Canadian Charter of Rights and Freedoms and by accepting and applying an overly narrow scope of freedom of expression for public service employees such as the applicant;
(g) The adjudicator erred in law and based his decision on irrelevant factors, particularly insofar as he relied upon the fact that the applicant has been successful in a proceeding involving freedom of speech in the Federal Court, upon the applicant's actions in the fact-finding meeting with her supervisor, and upon the fact that the applicant was not entitled to voice a personal opinion publicly;
(h) The adjudicator erred in law or based his decision on erroneous findings of fact made without regard for the material before him by ignoring relevant evidence, particularly evidence regarding the lack of harm caused by the applicant's statement and the widespread public opinion on the same issue which existed prior to the applicant making her statement;
(i) The adjudicator based his decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before him, particularly insofar as he characterized the applicant's comments as not relating to a health issue when her evidence was to the contrary, insofar as he distinguished Dr. Haydon's comments from other comments that had been made by Health Canada employees on the basis that the latter comments were concerning health matters, insofar as he ignored the evidence that the "harms" identified by the employer existed before Dr. Haydon's statement was made and declined in impact following the applicant's statement and, overall, insofar as it was found that the applicant's statement was inappropriate having regard to her position and the nature of the public debate on this issue.
STANDARD OF REVIEW
[26] In order to properly review the adjudicator's decision we must first determine the appropriate standard of review to be applied. There is somewhat of a controversy in assessing the proper standard of review since subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 sets out the specific grounds that an applicant must establish in order to succeed on an application for judicial review. It prescribes as follows:
| (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
|
|
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
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[27] In choosing to enumerate six distinct grounds of review, Parliament seems to have deliberately opted for a rather formalistic approach to judicial review where the focus is primarily connected to the particular nature or gravity of the error alleged by an applicant.
[28] While an erroneous finding of fact made by a tribunal, is not per se excluded from judicial scrutiny, it only becomes a reviewable error within the ambit of paragraph 18.1(4)(d) if the applicant is able to satisfy the Court that it has been made "in a perverse or capricious manner or without regard for the material before the tribunal". In Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108 at para. 14 (F.C.A.) (QL), Décary J.A. notes that:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous.
[29] This Court has been asked by the applicant to grant a judicial review of the adjudicator's decision. When a review application raises specific grounds of review under subsection 18.1(4) of the Federal Court Act, one may then wonder if it is really necessary for the Court to always rely on the pragmatic and functional approach in order to determine the appropriate standard of review. As is well known, Canadian courts now take a pragmatic and functional approach to the review of administrative decision. There is a wealth of jurisprudence to guide this Court when reviewing a decision from an administrative tribunal. The law is aptly summarized by Iacobucci J. in the recent decision of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (S.C.C.) where he said at paragraph 1:
According to the governing jurisprudence, a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The appropriate level of deference will, in turn, determine which of the three standards of review the court should apply to the decision: correctness, reasonableness simpliciter, or patent unreasonableness.
(my emphasis)
[30] The leading statement on determining the applicable standard of review pursuant to the pragmatic and functional approach is found in the reasons of Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (S.C.C.); see also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 226 (S.C.C.), 2003 SCC 19">2003 SCC 19, where it has been determined that four factors be taken into account: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing judge on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the problem.
[31] Pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the Act) an employee may grieve an employer's decision at all possible grievances levels pursuant to the procedures set out in the Act. If the grievance remains unresolved, the employee may then use the procedures set out in section 92 which provides as follows:
| 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(...)
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(...)
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
to any termination of employment under the Public Service Employment Act.
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92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
[...]
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
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[32] In Green v. Canada (Treasury Board), [2000] F.C.J. No. 379 (F.C.A.) (QL), Sharlow J., for the Federal Court of Appeal, wrote at paragraphs 7 and 8:
In a judicial review of the decision of an adjudicator under the Public Service Staff Relations Act, the appropriate standard is patent unreasonableness: ... The question here is whether the Judge correctly applied the "patently unreasonable" standard of review to the adjudicator's decision.
(my emphasis)
[33] The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect (Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 57 (S.C.C.)). If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. In Southam, supra, Iacobucci J. writing for the Court explained:
But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.
[34] A decision may be patently unreasonable if, for example, it is unsupported by evidence or if it is based on unsound reasoning. Thus, the tribunal's decision must stand unless it is clearly irrational that is to say evidently not in accordance with reason (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at para. 44 (S.C.C.)).
[35] In Toronto (City) v. Canadian Union of Public Employees, Local 79, (C.U.P.E.), [2003] 3 S.C.R. No. 77 (S.C.C.), Arbour J. at paragraph 14 reaffirmed that the correct standard of review to be applied to an adjudicator's decision as to whether an employer had just cause to discipline or discharge an employee is generally that of patent unreasonableness:
Doherty J.A. was correct to acknowledge patent unreasonableness as the general standard of review of an arbitrator's decision as to whether just cause has been established in the discharge of an employee. However, and as he noted, the same standard of review does not necessarily apply to every ruling made by the arbitrator in the course of the arbitration. This follows the distinction drawn by Cory J. for the majority in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, where he said, at para. 39:
It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of "outside" legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard. ... An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. [Emphasis added.]
(my emphasis)
[36] It is settled law that the application of the pragmatic and functional approach to a question of constitutional law will normally yield a correctness standard (Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476 at para. 66 (S.C.C.); Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322 at para. 40 (S.C.C.)). However, when the question of law falls within the specific expertise of the arbitrator, such as the interpretation of a collective agreement as was the case in Voice Construction Ltd. v. Construction & General, Workers' Union, Local 92 Voice, [2004] S.C.J. No. 2 (S.C.C.), the standard will be reasonableness simpliciter. At paragraphs 29 and 30 Major J. indicates as follows:
The nature of the problem at issue is a question of law- the interpretation of the terms of the collective agreement. The arbitrator stated at para. 18 of her decision:
I am asked to examine the provisions of this contract and determine whether the Employer has the right to refuse to hire qualified workers dispatched by the Union. In considering this matter, I am obliged to interpret the contract language as negotiated by the parties in accordance with well-accepted principles of contract interpretation.
Generally speaking, questions of law are subjected to a more searching review than are other questions, and frequently require the standard of correctness. Nevertheless, the interpretation of collective agreements, as noted in para. 27, is at the core of an arbitrator's expertise and this, in turn, points to some deference.
Taking into account all these factors, the arbitrator's decision in this appeal is entitled to a measure of deference, the appropriate standard of which is reasonableness.
(my emphasis)
[37] That being said, even if there are questions of constitutional law, this does not mean that the decision of the tribunal as a whole becomes open to review on a standard of correctness. In Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at paragraphs 48 and 49 (S.C.C.), Iacobucci J. speaking for the majority of the Supreme Court in this case (4 - 1) wrote:
As a general rule, I accept the proposition that curial (sic) deference need not be shown to an administrative tribunal in its interpretation of a general public statute other than its constituting legislation, although I would leave open the possibility that, in cases where the external statute is linked to the tribunal's mandate and is frequently encountered by it, a measure of deference may be appropriate. However, this does not mean that every time an administrative tribunal encounters an external statute in the course of its determination, the decision as a whole becomes open to review on a standard of correctness. If that were the case, it would substantially expand the scope of reviewability of administrative decisions, and unjutifiably so. Moreover, it should be noted that the privative clause did not incorporate the error of law grounds, s. 18.1(4)(c) of the Federal Court Act, R.S.C., 1985, c. F-7 (as amended by S.C. 1990, c. 8, s. 5). This tends to indicate that some level of deference should be provided.
While the Board may have to be correct in an isolated interpretation of external legislation, the standard of review of the decision as a whole, if that decision is otherwise within its jurisdiction, will be one of patent unreasonableness. Of course, the correctness of the interpretation of the external statute may affect the overall reasonableness of the decision. Whether this is the case will depend on the impact of the statutory provision on the outcome of the decision as a whole.
(my emphasis)
[38] In the present case, there are both issues of fact or of mixed fact and law such as the proper characterization and the impact of the applicant's reported comments. This case also concerns the correct interpretation of various judicial pronouncements with respect to the issue of a public servant's right (and the limits of such right) to publicly criticize the Government. In light of the above, considering all relevant factors, including the nature of the questions and the relative expertise of the adjudicator and the Court in this regard, I find that the standard of review to be applied to the decision as a whole rendered by the adjudicator is that of patently unreasonable. However, with respect more particularly to the interpretation of the Charter, including the extent and limits to the constitutional rights of the applicant as defined judicially by the courts, the standard of review should be correctness.
ANALYSIS
[39] The main question for the adjudicator was whether the employer had just and sufficient cause to suspend the applicant. As enunciated in [1979] 2 S.C.R. 768">Heustis v. New Brunswick (Electric Power Commission), [1979] 2 S.C.R. 768 at page 772 (S.C.C.), the adjudicator had three issues before him. First, did the applicant engage in the conduct alleged? Second, was the conduct deserving of disciplinary action on the part of the employer? Third, if so, was the misconduct sufficiently serious to suspend the applicant without pay for a period of 10 days?
[40] As for the first question, the applicant does not contest having made the statements reported in the article published in The Globe and Mail on February 9, 2001. With respect to the third question, applicant's counsel concedes that the adjudicator has a privileged expertise in this field and acknowledges that the primary purpose of the present judicial review application is to have set aside the impugned decision principally because the adjudicator erred in fact and in law in determining that the applicant's conduct deserved disciplinary action.
[41] Therefore, this case comes down to whether the applicant could be disciplined because she made public statements which were critical of her employer. The applicant's position is that she has a right to make such public views know pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), which protects her right to freedom of expression. The respondent does not dispute that the applicant's duty of loyalty to her employer, as given effect by the letter of suspension dated February 20, 2001, limits her freedom of expression as guaranteed by section 2(b) of the Charter. I agree. However, the respondent asserts that the discipline is justified here in order to maintain an impartial and effective public service. In this regard, the respondent submits that the applicant's conduct does not come within the ambit of the exceptions recognized in Fraser, supra.
[42] In my opinion, the adjudicator properly approached this case with the governing principles and reasons expressed by the courts and arbitrators in a number of cases.
[43] It is an established principle of the common law that an employee is under a duty to serve his employer with good faith and fidelity and to not deliberately do something which may harm his employer's business (Re Regional Municipality of Hamilton-Wentworth and Canadian Union of Public Employees, Local 167 (1978), 18 L.A.C. (2d) 46; Re Ministry of Attorney General, Corrections Branch and British Columbia Government Employees' Union (1981), 3 L.A.C. (3d) 140 at 158-59). As such, a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of Government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties.
[44] Indeed, arbitrators have held that public servants (and all employees likewise) violate their duty or loyalty if they engage in public criticism which is detrimental to their employers legitimate business interests. As indicated in the most recent edition of Canadian Labour Arbitration (3rd Ed.), authored by Donald J. M. Brown, Q.C. and David M. Beatty (Canada Law Book, Inc, Aurora, July 2002), at page 7-117:
Beyond such direct conflicts of interest arbitrators have held that public servants and indeed all employees violate their duty of loyalty if they engage in public criticism which is detrimental to their employer's legitimate business interest. In determining whether an employee has behaved improperly, arbitrators have considered such factors as the accuracy or truthfulness of the criticism or information,46 the confidentiality of the information, the manner in which the criticism was made public,47 the extent to which the employer's reputation and ability to conduct its business was compromised,48 the interest of the public in the information, etc.49 Applying these factors, it has been held that employees may be disciplined, and indeed even discharged, for public criticisms50 of their employer's administration where such attacks involved a concerted effort to provoke the employer and disrupt operations,51 vitriolic denunciation,52 or gross misrepresentations of the truth and which were not channeled through internal mechanisms which were designed for such purposes.53 And where their criticisms compromise their credibility, public servants may be transferred to alternate duties.54 In the view of several arbitrators these general principles of arbitral law have not been affected by the entrenchment of the Charter of Rights.55
[citations omitted, my emphasis]
[45] That being said, a balance must be struck between the employee's freedom of expression and the Government's desire to maintain an impartial and effective public service. The common law duty of loyalty is sufficiently precise to constitute a limit "prescribed by law" under section 1 of the Charter. The objective of the duty of loyalty owed by public servants is to promote an impartial and effective public service which is essential to the functioning of a democratic society; therefore, it constitutes a pressing and substantial objective. However, the duty of loyalty does not demand absolute silence from public servants; it encompasses exceptions or qualifications where, for example, the Government is engaged in illegal acts or where its policies jeopardize the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his ability to perform effectively his duties or on the public perception of that ability. The exceptions to the duty of loyalty are in place in order to embrace matters of public concern and to ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service (Fraser, supra, at para. 41; R. v. Swain, [1991] 1 S.C.R. 933 at para. 43 (S.C.C.); Haydon, supra, at para. 48).
[46] Even before the adoption of the Charter, it was recognized that the duty of fidelity could not be invoked against an employee who publicly disapproved of his employer in certain circumstances. In Re Ministry of Attorney General, Corrections Branch, supra, at pages 160-61, Arbitrator J. M. Weiler notes:
(...) An absolute "gag rule" would seem to be counter productive to the employer for it would inhibit any dissent within the organization. Employee dissidents can be a valuable resource for the decision-makers in the enterprise. Of course this statement does not apply to what we might call "petty" dissidents, i.e., employees who argue with their bosses over matters of every day business judgment, or who slander their supervisors, or who bad-mouth their companies. The dissidents referred to are those employees who learn of wrong doing and seek to correct it, who see practices or products that may endanger society and seek to correct them, or who are directed to do illegal or immoral acts and object to doing them. For these employees, if no other avenue of redress is available, public expression of certain information, even though it may be critical of the employer, should be encouraged not deterred by fear of losing their job.
(...)
In my view, each case must be decided on its own facts, taking into account among other factors, the content of the criticism, how confidential or sensitive was the information, the manner in which the criticism was made public, whether the statements were true or false, the extent to which the employer's reputation was damaged or jeopardized, the impact of the criticism on the employer's ability to conduct its business, the interest of the public in having the information made public and so forth.
The duty of fidelity is not designed to protect the employer from all criticism. Nor is an employee's duty of loyalty aimed at the personalities who may occupy a particular position in the corporation or bureaucracy. An employee's duty of fidelity extends to the enterprise not the particular individual who may be managing the enterprise. By the same token, a public servant's loyalty extends to the Government, not the political party who happens to be in office.
(my emphasis)
[47] Then, the Arbitrator J. M. Weiler goes on to explain that it is necessary to "balance the various interests at stake" and provides a number of factors that may be considered in this regard. He also specifies that before "going public", as a first step, the employee should bring the matter to the employer's attention and use the available resources to ensure that the facts are straight. At pages 161-62, he states:
In determining whether an employee who criticizes his employer has breached his duty of loyalty thereby giving his employer cause for discipline or discharge, the arbitrator must balance the various interests at stake. For example, an arbitrator may consider the extent to which an employee's public criticism of his superiors affects the employer's ability to maintain the credibility, confidence or disciplinary authority of the employees' immediate supervisors and the extent to which the criticism creates disharmony among co-workers. In all cases the interest of the employer in maintaining an efficient operation must be weighed against the interest of the employees or the general public in promoting free debate on issues of public concern.
While an employee's duty of fidelity to an employer does not prevent him in every circumstance from publicly criticizing his employer, it is recognized that public criticism is not the first step that should be taken in order to bring wrongdoing within the enterprise to the attention of those who can correct it. In other words, while an employee in some circumstances may be forces to "go public", e.g., concerning an unsafe chemical or machine which his company produces, before doing so, he should attempt to get all the facts and give his employer an opportunity to explain or correct the problem. Most employers have a variety of mechanisms, formal or informal, under which an employee may lodge a complaint about the manner in which the enterprise should be operated. Only if no satisfaction results from these channels, then and only then, may an employee "go public". What is clear is that an employee will be in breach of the duty of fidelity owed to his employer if he makes false public statements which the employee either knows them to be false or is reckless as to the truth of the statements. When an employee fails to use the available resources to determine the accuracy of critical comments about one's employer, or when the employee refuses to use other means to bring his criticisms of the employer to the attention of those in a position to rectify the problem, he is in my view in breach of the obligation of loyalty which he owes his employers.
(my emphasis)
[48] It is important to note that the factors identified by Arbitrator J.M. Weiler have been followed in numerous cases notably in Fraser, supra; Alberta Union of Provincial Employees v. Alberta, [2002] A.J. No. 1086 at para. 31 (Alta. C.A.); Re Snow Lake School District No. 2309, [2001] M.G.A.D. No. 66 at para. 111. Further, Tremblay-Lamer J. in Haydon, supra, outlined the importance of exhausting internal mechanisms. Further, in Grahn v. Canada (Treasury Board) (1987), 91 N.R. 394 (F.C.A.), it was recognized that a public service employee who criticizes the employer in public must demonstrate that the statements are true and reasonably sustainable.
[49] In light of the above, the following factors are relevant in determining whether or not a public service employee who makes a public criticism breaches his or her duty of loyalty towards the employer: the working level of the employee within the Government hierarchy; the nature and content of the expression; the visibility of the expression; the sensitivity of the issue discussed; the truth of the statement made; the steps taken by the employee to determine the facts before speaking; the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer's reputation was damaged; and the impact on the employer's ability to conduct business.
[50] In Fraser, supra, which originated before the Charter, a supervisory employee of Revenue Canada had openly and unrepentantly attacked Government policies with respect to metrification and the adoption of the new Constitution, although neither directly affected the Department in which he worked. He was suspended and eventually dismissed. In upholding the decision of the Adjudicator, which had also been upheld by the Federal Court of Appeal, Chief Justice Dickson stated at paragraph 30:
The Adjudicator recognized that a balance had to be struck between the employee's freedom of expression and the Government's desire to maintain an impartial and effective public service. He said:
[It is] incumbent upon the public servant to exercise some restraint in the expression of his views in opposition to Government policy. Underlying this notion is the legitimate concern that the Public Service and its servants should be seen to serve the public in the administration and implementation of Government policies and programs in an impartial and effective manner. Any individual upon assuming employment with the Public Service knows or ought to be deemed to know that in becoming a public servant he or she has undertaken an obligation to exercise restraint in what he or she says or does in opposition to Government policy. Moreover, it is recognized that the exercise of such restraint may very well be a requirement of employees who work in less visible sectors of Canadian society.
(my emphasis)
[51] Indeed, in Fraser, supra, at paragraph 41, Chief Justice Dickson recognizes that in some circumstances a public servant may actively and publicly express opposition to the policies of a Government:
And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies.
(my emphasis)
[52] The exceptions in Fraser, supra, are not necessarily engaged every single time a public servant makes a public comment. Fraser, supra, also indicates that one of the circumstances in which a public servant should not be subject to discipline is where the criticism had no impact on the ability to perform the duties of the employee or the public perception of that ability. In this respect, I note that even if the comments or position taken by the employee had no impact on the ability to perform the duties of the employee, discipline may nevertheless be justified if they had an impact on the public perception of that ability. However, while discharge may be warranted in cases in which the ability to perform the duties is irremediably compromised, a suspension or a transfer may suffice in cases in which the criticism has affected to a certain point, but not irremediably, the public perception of that ability. This is a matter for the adjudicator to decide depending of the particular circumstances of each case.
[53] That being said, where disciplinary action is taken against a public servant, it is the responsibility of the employer to demonstrates that the comments were, in fact, inappropriate and harmful: Re Canada (Treasury Board - Health Canada) and Chopra (2001), 96 L.A.C. (4th) 367). While as a general rule, direct evidence of impairment to perform the duties is required, when the nature of the public servant's occupation is both important and sensitive and when the substantive form and context of the public servant's criticism is extreme, then an inference of impairment can be drawn (Fraser, supra, at para. 47). The courts should not intervene in this regard unless the adjudicator's findings are arbitrary and capricious.
[54] In Haydon, supra, which was decided under the Charter, this Court was asked to decide whether the duty of loyalty is a reasonable and justifiable limit on an employee's freedom of expression pursuant to section 1 of the Charter (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (S.C.C.); Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 (S.C.C.)). The Court determined that the possibility of engaging in a balancing of competing interests (i.e. maintaining an impartial and effective public service, an employee's right to inform the public of any wrongdoing and the public's right to have any wrongdoing exposed) ensures that proportionality is secured. In cases that fall within the Fraser, supra, qualifications (the enumeration of the exceptions is not exhaustive), the public interest outweighs the objective of an impartial and effective public service (Haydon, supra, at para. 120).
[55] More particularly, the Court found in Haydon that public criticism by the applicant and another fellow public servant, Shiv Chopra, fell within the first qualification articulated in Fraser, supra, namely disclosure that jeopardizes life, health or the safety of the public (Haydon, supra, at para. 100). While exercising their duties as drug evaluators, the latter became seriously concerned with the drug approval process generally, and with the particular approval process regarding growth hormones for meat, milk stimulation and antibiotics. One particular drug which caused concern for the applicants, was recombinant bovine growth hormones. The evidence in the record revealed that their concerns were first raised at Health Canada within the Bureau of Veterinary Drugs (BVD) as early as December 1996 when four drug evaluators filed an internal complaint. After repeated efforts to have their concerns addressed internally, including a request for an external investigation and the intervention of the Prime Minister and the Health Minister, they finally decided to complain publicly. In this particular context, the Court allowed their application for judicial review of the decision by the Associate Deputy Minister (ADM) of Health Canada rejecting the applicants' grievances against letters of reprimand/instruction sent by their supervisors.
[56] At paragraphs 100, 108, 109, 112 and 113 of the Court's decision in Haydon, supra, Tremblay-Lamer J. notes:
I am of the view that the record demonstrates sufficient evidence for the ADM to conclude that the applicants' public criticism fell within the first qualification of the Fraser test, namely disclosure of the policies that jeopardize life, health or safety of the public. A review of the circumstances that led up to [page 113] the interview on Canada AM reveal that the allegations of a troubled drug approval process were already the subject of several grievances within Department.
(...)
In light of this evidence, not only do I find the respondents' contention that the applicants' allegations are too vague and unspecific to be viewed as legitimate allegations of danger to the health under the first Fraser qualification of the duty of loyalty, to be without merit, but I am of the opinion that the ADM erred in qualifying the applicants' conduct as inappropriate public criticism of management. In my opinion, when placed in the context of previous incidents, the conduct of the applicants constitutes an exception to the common law duty of loyalty as identified in Fraser. While the statements made by the applicants expose their frustration, they more importantly disclose a legitimate public concern with respect to the efficacy of the drug approval process within the BVD.
In addition, public criticism aired on national television was not the first step taken in order to have the issue of the safety and efficacy of the drug approval process addressed. The applicants endeavoured on several occasions to have their concerns addressed internally without success.
(...)
This demonstrates that the ADM did not consider the possibility that the applicants' statements amount to a public concern issue. By focussing primarily on the applicants' duty of loyalty to his employer, the ADM failed to examine the applicants' right to freedom of expression on an issue of public interest where internal redress was unsuccessful. As a general rule, I believe that public criticism will be justified where a reasonable attempt to resolve the matter internally would have been unsuccessful.
The applicants' statements essentially pertained to their concerns regarding the drug evaluation process within the BVD and its potential threat to public health. The mandate of the Health Protection Branch is the protection of the health and safety of Canadians in accordance with the provision of the Food and Drugs Act. Therefore, as drug evaluators, the applicants are responsible for conducting objective, scientific evaluations of new veterinary drug submissions to ensure that new drugs comply with the human safety requirements set out in legislation.
(my emphasis)
[57] As such, in the case at bar, the applicant publicly criticized the decision to suspend the importation of Brazilian beef on the grounds that: (a) there was no difference in risk between Brazilian beef and Canadian beef; and (b) it was motivated by politics and the trade dispute rather than health and safety. Here, contrary to the Haydon, supra, case, the evidence on the record clearly demonstrates that the employer's representative, Mrs. Kirkpatrick, did, in fact, address the applicant's public criticism in light of the guiding principles mentioned in Fraser, supra, and Haydon, supra. She found, for the reasons expressed in the letter of suspension dated February 20, 2001, that the applicant's comments to the media did not come within any of the circumstances in which public criticism of the employer might be acceptable. In his turn, in a lengthy decision, the adjudicator carefully reviewed all of the circumstances of the case and ultimately found that the applicant was guilty of misconduct for the reasons he also expressed. I am unable to see any error of law in the general approach taken by the adjudicator that would have materially affected his conclusion which, overall, is not patently unreasonable.
[58] First, it was necessary to qualify the nature of the applicant's reported statements. Was she trying to alert the public to a potential danger or was she simply criticising the actions of the Government or one of its agencies? Was she denouncing an illegal act? Was she expressing her opinion as a simple citizen? Was she speaking as a scientist? These are all issues of fact which come within the exclusive mandate of the adjudicator. The latter's conclusions in this regard should not be disturbed unless they are patently unreasonable.
[59] The "prejudice to health and safety" qualification in Fraser, supra, permits disclosure of Government practices or policies, with or without criticism, for the purpose of exposing to the public view the risk that those practices or policies create (Kenneth P. Swan, "Whistleblowing, Employee Loyalty and the Right to Criticize: An Arbitrator's Viewpoint" quoted in Newfoundland and Labrador Nurses' Union v. Health Care Corp. of St. John's (Poemeroy Grievance), [2001] Nfld. L.A.A. No. 1 at para. 290). There is no doubt that the applicant's reported comments quoted did not concern illegal acts or policies that jeopardized the life, health or safety of Canadians. Clearly, this is not a case of "whistle blowing", but rather a case of a public servant publicly criticizing the Government's actions against another sovereign State. Besides, the reported comments convey an unverified assertion made by a scientist working at Health Canada (which was consulted before the imposition of the ban) that there is no difference in risk between Brazilian beef and Canadian beef.
[60] Before the adjudicator, the applicant admitted that she was not familiar with the importation policies of the CFIA; with the membership of Health Canada's science team on TSEs; with the advice that the team had given to the CFIA regarding the importation of Brazilian beef products; or with the information that had been made public about the reasons for the suspension (Transcript applicant's Record Volume V, pages 879-880). It is also clear from the evidence that the applicant was not involved in the process of decision making which lead to the ban. Further, the applicant took no steps to acquire knowledge of the grounds for the CFIA decision before she made her statements. Therefore, it was not unreasonable to conclude that the applicant was guilty of misconduct.
[61] It was certainly reasonable for the adjudicator to infer that the applicant's opinion was newsworthy because of her position as a Health Canada scientist. In his decision, the adjudicator notes that the applicant "did insist she was voicing her own opinion", but adds that " ... someone who lends his or her name to a public statement carries the risk that there will be more or less weight attributed to that statement depending on the expertise of the person to who the statement is attributed" (paras. 85 and 87). In fact, the adjudicator concludes that the applicant's name carried significant weight, much more weight than an "anonymous source". As stated by the adjudicator, the applicant "... was a scientist with Health Canada saying [the decision to ban Brazilian beef] was not a health issue. At the very least, this would have caused confusion among members of the public, and it certainly led to disruption within the Department. Members of the multi-disciplinary team had to be diverted from planning their trip to Brazil to instead, preparing ministerial briefing notes" (para. 87). I find that, based on the evidence on the record, these findings of fact were reasonably opened to the adjudicator. In this respect, the applicant has failed to demonstrate that they were arbitrary, capricious or otherwise patently unreasonable.
[62] The fact remains, however, that having chosen the drastic course of casting grave doubts on the appropriateness and good faith of the Government in imposing the ban on the importation of Brazilian beef, it was then up to the applicant to prove her allegations if she wished to avoid the otherwise natural consequences of her actions (Grahn v. Canada (Treasury Board) (1987), 91 N.R. 394 (F.C.A.)). It was not simply a matter of expressing an opinion; statements of fact were made and their truth had to be proven. In the present instance, the applicant explained that her statements, as quoted in The Globe and Mail, were taken out of context, the main topic of her conversation with Mr. MacKinnon being her health and safety concerns about TSEs. She further states that she was not interested in discussing Brazilian cattle with Mr. MacKinnon, but rather was interested in discussing her concerns about the many products that are imported into Canada that contain products of cattle origin, and that are difficult to trace, or whose source is unknown. While the applicant may have discussed other matters with the reporter, it is her published comments that are relevant to the present proceedings. The fact is that even if the comments made by the applicant echoed an opinion that a part of the population may have entertained, they emanated from a scientist working at Health Canada.
[63] As indicated by the adjudicator, the evidence demonstrates clearly that the applicant failed to use the many resources available to her to determine the accuracy of her statement. The respondent submits that proper mechanisms were in place for the applicant to address her concerns. Whether or not addressing the problem internally would have solved the problem remains uncertain as she did not do so. The issue was carefully examined by the adjudicator and I find no reason to intervene.
[64] The applicant also submits that the adjudicator failed to address whether her remarks had any impact upon the performance of her duties or the public perception of that performance. While the employer did question the applicant's judgment, no evidence was tendered to show how that affected the performance of her duties. I note that the adjudicator does not specifically comment on the impact of the applicant's comments on the performance of her duties. This is not surprising since, contrary to the Fraser, supra, case, the applicant was not discharged but simply suspended for a ten day period. However, the adjudicator did comment on the general public's perception of the effect of her statement on the execution of her duties, as well as on the impact these statements had within the Government vis-a-vis their counterpart outside Canada. It is clear from the evidence accepted by the adjudicator that the applicant's comments affected the perception of her ability to conduct her duties effectively and that her criticism also had an impact on the perception of the operations and integrity of the CFIA and Health Canada. The adjudicator's findings in this regard are not patently unreasonable. Therefore, I fail to see any reviewable error.
[65] I also find that the adjudicator's conclusion with respect to condonation is not patently unreasonable. The adjudicator wrote as follows:
The grievor's counsel argues condonation of similar statements. It is advanced that because previous public statements attracted no discipline, this should not attract discipline as well. Quite frankly I do not see any similarity to the facts of this case and the examples put forward of other Health Canada scientist speaking out on issues. This situation involves an employee who has not used any internal mechanism to address her concerns. Furthermore, the statement was not one which, in my view, fell into the Fraser (supra) exception. Dr. Haydon stated, in fact, it was not a health issue. The examples cited by the grievor's counsel when arguing condonation all related to issues of a health concern.
[66] I accept the argument brought forward by the respondent, that the applicant has failed to establish condonation. The examples cited all concerned matters of health and safety. As discussed above, this case is clearly not one that falls within the health and safety qualification. Every decision whether or not to impose discipline depends upon the facts of each case and the factors identified above. Further, I agree with the respondent that Health Canada did not condone the statements the applicant made on television in June 1998 concerning the management of the process for reviewing veterinary drugs. Those statements were subject of the decision of Justice Tremblay-Lamer of this Court (Haydon, supra). There is nothing in Haydon, supra, decision which might reasonably have led the applicant to believe that the employer would not object to the statements she made to the Globe and Mail.
[67] As discussed above, every decision whether or not to impose discipline depends upon the facts of each case and the factors identified such as the working level of the employee within the Government hierarchy, the nature and content of the expression, the visibility of the expression, the sensitivity of the issue discussed; the truth of the statements made, the steps taken by the employee to determine the facts before speaking, the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer's reputation was damaged and the impact on the employer's ability to conduct its business (Fraser, supra, at 468). Therefore, I find that the conclusion reached by the adjudicator was reasonably open to him and was one that he could have made based upon the evidence on the record.
[68] The applicant further submits that the adjudicator erred in law and wrongfully failed to exercise his jurisdiction by not addressing her position that the disciplinary action was inappropriate having regard to the fact that another employee had spoken publically on the same issue but was not subject to discipline. First, I find that this argument is not relevant in determining whether or not the applicant was guilty of misconduct because it does not address the issue at hand, that is, the content of the precise remarks made by the applicant. Second, the fact that another unidentified employee had spoken publically on the same issue but was not subject to discipline is one factor among others that the adjudicator could take into account in determining whether a ten day suspension was excessive in the circumstances. Here, the adjudicator decided to reduce the disciplinary measure to a five day suspension. The adjudicator specifically considered the fact that the applicant's reported statements carried more weight than an "anonymous source" and examined their impact. At the same time, the adjudicator concluded that the fact that the applicant had not initiated the contact with the media was a mitigating factor. In this regard, the applicant has failed to demonstrate any serious flaw in the reasoning of the adjudicator, which again, I am unable to find patently unreasonable.
CONCLUSION
[69] In summary, the question before the adjudicator was whether the applicant breached her duty of loyalty thereby giving the employer cause for discipline. The applicant did not enjoy an absolute license, as a public servant, to publicly criticize policies of the Government or to cast doubt on their appropriateness. Considering all of the relevant factors, including the context, the manner and the timing of the reported statements, the decision of the arbitrator to find the applicant guilty of misconduct was one that could reasonably be have made based on the evidence on the record. The adjudicator did not err in law. His interpretation was consistent with the Charter. The duty of loyalty constitutes a reasonable limit to the freedom of expression. Clearly, there has been a balancing of the competing rights. This case is distinguishable from Haydon, supra, and the other cases cited by the applicant. A large and liberal interpretation should be given to the exceptions mentioned in Fraser, supra. However, at the same time, it must be consistent with the objective of maintaining an impartial and effective public service. Clearly, this is not a case of "whistle blowing". The applicant's reported statements, in my opinion, do not involve public interest issues of the same order as in Haydon, supra. They do not address pressing issues such as jeopardy to public health and safety (or Government illegality). Moreover, the evidence reveals that the applicant did not check her facts or address her concerns internally before she spoke to The Globe and Mail. It also appears that her statements were not accurate. Nevertheless, they carried significant weight because the applicant is a scientist and they had an adverse impact on the operations of the Government of Canada. As a result, the adjudicator found that the applicant breached her duty of loyalty and that discipline was warranted. In this regard, I am unable to find any material error. Overall, the decision is not patently unreasonable and indeed it satisfies the reasonabless requirement if a stricter standard of review should be adopted. Accordingly, this application must fail.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision rendered by Joseph W. Potter, adjudicator, be dismissed with costs.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-309-02
STYLE OF CAUSE: DR. MARGARET HAYDON v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY TREASURY BOARD
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 24, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: MAY 21, 2004
APPEARANCES:
MR. ANDREW RAVEN FOR THE APPLICANT
MR. J. SANDERSON GRAHAM FOR THE RESPONDENT
MR. RICHARD FADER
SOLICITORS OF RECORD:
RAVEN, ALLEN, CAMERON & BALLANTYNE FOR THE APPLICANT
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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