Date: 20090211
Docket: T-1078-08
Citation: 2009
FC 144
Ottawa, Ontario,
February
11, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JOHN
DETORAKIS
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
These reasons
and order refer to motions by the applicant, Mr. Detorakis, heard at Fredericton, New Brunswick on February 2, 2009. Mr. Detorakis is
representing himself in these judicial review proceedings. It has been
determined by this Court and by the Federal Court of Appeal that he requires
the guidance of a case management judge. There are, as of the date of writing, 194
recorded entries and 56 documents on the Court’s file and two previous
interlocutory orders that have been the subject of appeals. The matter has not,
as yet, proceeded to the stage of preparation of the application record. For
Mr. Detorakis’ benefit and for the information of the judges who will deal with
the remaining steps in this proceeding, I will set out my reasons for disposing
of the motions at some length.
Background:
[2]
The
underlying application is for judicial review of a decision by the Commissioner
of the Public Sector Integrity Commission (“PSIC”), Mme Christiane Ouimet, in
which she declined to exercise her jurisdiction to investigate Mr. Detorakis’
disclosure of alleged wrongdoing by public officials and declined to provide him
with funding to obtain legal advice.
[3]
The
disclosure was submitted by Mr. Detorakis on April 16, 2008 pursuant to section
13 of the Public Servants Disclosure Protection Act, S.C. 2005, c. 46
(“the PSDP Act”) and relates to alleged actions taken by his employer, the
Canadian Nuclear Safety Commission (“CNSC”), in response to his request for
information concerning staff relations issues.
[4]
Mr.
Detorakis initially filed a complaint with CNSC management in 2003. Dissatisfied
with the response, he then sought the intervention of the Office of the Privacy
Commissioner (“OPC”) which referred his complaint to the Office of the
Information Commissioner (“OIC”) as an access issue. The OIC advised Mr.
Detorakis in November 2006 that he was out of time for bringing his complaint
but that he could make a fresh access application to CNSC and file a new
complaint should the application be refused.
[5]
Mr.
Detorakis contested that assessment arguing in his subsequent correspondence
with the OIC, and in his April 16, 2008 disclosure to the PSIC, that the issue
was not the refusal of an access request but the concealment of records and
fabrication of evidence in order to deny him access to the information.
[6]
Mr.
Detorakis asserts that the OIC maintains an open file but has failed to
investigate his allegations of criminal wrongdoing. This prompted his
disclosure to PSIC. On this and other complaints, he has sought the intervention
of the Minister of Labour and the Minister of Justice and Attorney General of
Canada. In their replies, the former indicated he could not intervene and the latter’s
office suggested that if Mr. Detorakis has evidence of criminal acts, he should
contact his local police.
[7]
The Public
Sector Integrity Commissioner’s (“PSI Commissioner”) decision was communicated
to Mr. Detorakis in a letter signed by Mr. Wayne Watson, then Deputy
Commissioner, on June 12, 2008. The letter referred to paragraph 24(1)(a) of
the PSDP Act which provides that the Commissioner may refuse to deal with a
disclosure if he or she is of the opinion that the subject matter has been
adequately dealt with, or could more appropriately be dealt with, according to
a procedure provided for under another Act of Parliament. The letter referred to the
assessment conducted by the OIC under the Access to Information Act, R.S., 1985, c. A-1 as the ground for
declining to act on the disclosure. Mr. Detorakis was again advised that he
could address his allegations of criminal misconduct to his local police
service.
[8]
In his notice
of application under section 18.1 of the Federal Courts Act, R.S.C.
1985, c. F-7, filed on July 11, 2008, Mr. Detorakis seeks a writ of mandamus to
compel the PSI Commissioner to accept his disclosures of wrongdoing and approve
funding for legal consultation. In accordance with the procedure set out in rule
317 of the Federal Courts Rules, S.O.R./98-106, Mr. Detorakis requested
the production of certified copies of the following materials:
(a) All records of inquiry or
investigation into the matters of the applicant’s disclosures.
(b) All records of analysis of facts, or
other considerations supporting the determination by the Commissioner not to
accept the disclosures and not to grant access to legal consultation.
(c) All documents of policy or guidelines
that guided the Public Service Integrity Commissioner discharging the
discretion to not accept to register the applicant’s disclosures about
indictable offenses authorized or condoned by senior public service executives.
(d) All documents of policy or guidelines
that guided the Commissioner’s discretion to not provide the applicant with
legal advice in the matters of his disclosures about indictable and criminal
offenses committed by senior government executives in the organization in which
he is employed.
(e) All records of precedents dealt by
the Commissioner’s Office where the Commissioner discharged the mandate and
authority given by the PSDP Act for:
·
Accepting
public servants’ disclosures about senior government executives committing or
condoning indictable offenses; and
·
Providing
legal consultation to the public servants who sought to register their
disclosure with the Commissioner.
[9]
On July
24, 2008 Mr. Joe Friday, counsel to the Office of the Commissioner, issued a
document entitled “Certificate of Record” attached to which were papers described
as true copies of “... all materials provided to the Public Sector Integrity
Commissioner in the disclosure of wrongdoing made by John Detorakis...”. The
attached documents consisted of the decision letter together with copies of Mr.
Detorakis’ correspondence with OIC and PSIC staff.
[10]
Mr.
Detorakis took steps to determine whether any of the other materials that he
had requested had been filed with the Court Registry or whether an objection to
the request had been made pursuant to rule 318(2) of the Federal Courts
Rules. On August 15, 2008 he sent a second request for production to the Office
of the Commissioner asking for, among an extensive list of other items, records
pertaining to alleged conflicts of interest on the part of the Commissioner and
the Deputy Commissioner and any records of communications between the
Commissioner and the heads of other federal administrative tribunals.
[11]
By letter
dated September 24, 2008 to Mr. Detorakis and copied to the Court, Mr. Friday
referred to the requests for disclosure contained in the notice of application
and the August 15, 2008 correspondence and wrote as follows:
The records and materials
listed above such as policy or guidelines on discharging the Commissioner’s
discretion concerning disclosures and the provision of legal advice, or on
conflicts of interest, or on the delegation to deal with disclosures and
complaints of reprisal, a declaration of conflict, or communications with Heads
of other federal tribunals, etc., do not exist, as a result, are not contained
in the certified record submitted on July 24, 2008. The certified record contained
all the materials which were actually before the Public Sector Integrity
Commissioner when a decision was made on her behalf.
Since the records you are
requesting do not exist we, consequently, hereby formally object to your
request made under rule 317.
We remain at the disposal of
the Court with respect to any direction the Court may issue in dealing with
this matter.
[12]
Thereafter,
Mr. Detorakis filed several motions including an effort to have the
Commissioner, Deputy Commissioner and General Counsel brought before the Court
to respond to contempt allegations for their failure to respond to his rule 317
requests. Following a hearing at Fredericton on October 6, 2008 before Justice
Michael Phelan, the respondent’s motion to strike the Public Service Integrity
Commissioner as the respondent and to substitute the Attorney General of Canada
was granted and, on the Court’s own motion, an order was issued that the
application be specially case managed pursuant to rule 383. Mr. Detorakis filed
appeals from these decisions and brought motions to stay the execution of the orders.
[13]
The stay
motions were dismissed by Justice Gilles Létourneau of the Federal Court of
Appeal on November 26, 2008 with costs assessed against the applicant, payable
forthwith and in any event of the cause. Justice Létourneau confirmed the view
of the motions judge that the guidance of a case management judge was required.
Justice Layden-Stevenson was appointed by the Chief Justice to perform that
role which she has now relinquished upon her appointment to the Court of
Appeal.
[14]
The first
of Mr. Detorakis’ present motions addresses his concerns about the tribunal
record and the second seeks to amend the grounds set out in his notice of application.
For the sake of convenience, they are referred to here as the completeness
motion and the pleadings motion.
[15]
These motions
were set down for hearing at the direction of the case management judge and
motion records were filed by Mr. Detorakis on January 19, 2009. The respondent
filed his motion records on January 28, 2009. Included in the respondent’s
record respecting the completeness motion is the affidavit of Ms. Erin Howland,
administrative assistant at the Office of the Public Sector Integrity
Commissioner, dated January 26, 2009. Ms. Howland deposes that she conducted a
thorough review of the applicant’s disclosure file. She describes the steps
that were taken by herself and others between the receipt of the disclosure on
April 16, 2008 and the signature of the decision letter on June 12, 2008 and
attaches as exhibits the contents of the disclosure file.
[16]
Attached
as exhibit “E” to Ms. Howland's affidavit is a three page document entitled “Analysis
of Receivability” prepared by the PSIC investigator, Mr. Ronald Calvert, to
whom the disclosure file had been assigned. This document, dated May 22, 2008,
contains Mr. Calvert’s assessment that paragraph 24(1)(a) of the PSDP Act
applied to the disclosure and his recommendation that Mr. Detorakis be informed
accordingly and that he be advised to contact the local police regarding the allegations
of criminal wrongdoing.
[17]
On the
last page of the document, below Mr. Calvert’s conclusion and signature, appears
the sentence “I agree with the above suggestion” and lines for sign-offs by
several Commission managers. It bears the initials of the Commission Registrar,
Head of Legal Services (not Mr. Friday) and the Commissioner and the dates on
which each initialled the document. It is not initialled by Mr. Watson, then Deputy
Commissioner, or Mr. André Lefebvre, then Director General of Investigations
and Inquiries, although Ms. Howland’s affidavit indicates that the document
went to both of them for review and approval en route to the Commissioner. Both
officials have since left PSIC along with the former Head of Legal Services,
Jean-Daniel Bélanger, and the former Registrar, Manon Hardy.
[18]
For the
record, Mme Hardy is now the Deputy Registrar of the Public Servants Disclosure
Protection Tribunal of which the undersigned is a member, appointed on June 27,
2007 for a three year term. While he was with PSIC, Mr. Bélanger participated
in meetings of a consultation group formed to assist the Tribunal to develop
rules. The group also consisted of representatives of Treasury Board Legal
Services, the Public Service Alliance of Canada, the Professional Institute of
the Public Service of Canada and RCMP Legal Services. To date, the Commissioner
has not applied to the Tribunal to decide any matters for which it was
constituted under the statute.
[19]
The Court
was informed during the hearing that Mr. Bélanger has left the PSIC to pursue
another opportunity in the public service. In any event, no issue appears to
arise with respect to either Mr. Bélanger or Mme Hardy’s involvement in this
process. There is no indication in the record as to why Messrs Watson, Lefebvre
and Calvert have left the PSIC.
[20]
Mr.
Detorakis contends that the departures of Mr. Watson and Mr. Lefebvre may be related
to his case and that the absence of their initials on the sign-off sheet
suggests that they were in disagreement with the Commissioner’s decision. He
submits that such information, if confirmed, would be relevant to the
determination of his application.
Preliminary issues:
[21]
At the
outset of the hearing on February
2, 2009, Mr.
Detorakis raised three preliminary matters. The first request was that he be
permitted to amend the relief sought on the completeness motion to accord with the
information provided in the respondent’s motion record which confirmed that the
decision-maker was the Commissioner and not the Deputy Commissioner, contrary
to his prior understanding. That request presented no difficulty and was
accepted.
[22]
The second
preliminary matter raised by Mr. Detorakis was an oral motion to strike three
paragraphs of Ms. Howland’s affidavit coupled with a request to postpone the
hearing in order to allow him to cross-examine Ms. Howland on the content of
the affidavit. The three paragraphs in question read as follows:
24. This represents the entire
process followed in this case and all of the materials obtained and produced by
our Office and available to the aforementioned persons from this Office who
were involved in the review and in the decision-making process in this file. No
other documents were obtained and no other persons were consulted in the
process.
25. I can confirm that Joe
Friday is no longer a lawyer acting for or in the service of the Department of
Justice. I have inquired and been advised by the responsible HR officer at PSIC
that Joe Friday is on secondment to PSIC from the Department of Justice.
26. To the best of my
knowledge Public Sector Integrity Canada
does not have, nor has it ever had, files belonging to the Department of
Justice in its possession, or stored on its premises.
[23]
The
grounds asserted by Mr. Detorakis for this motion to strike and to cross-examine
were, in essence, that these paragraphs were irrelevant and prejudicial, that
Ms. Howland as an administrative assistant could not speak to the completeness
of the tribunal record and could not assert with authority that Mr. Friday no
longer acted for the Department of Justice nor had access to that Department’s
files. He wished to cross-examine Ms. Howland on these matters.
[24]
After
hearing submissions from Mr. Detorakis and counsel for the respondent, I denied
the motion to strike the three paragraphs as I did not consider them irrelevant
or prejudicial to Mr. Detorakis. They relate to matters raised by Mr.
Detorakis’ completeness motion. Paragraph 24 reflects Ms. Howland’s review of
the file and her knowledge of the steps taken with respect to the disclosure. Paragraphs
25 and 26 respond to Mr. Detorakis’ submissions that Mr. Friday had access to
files in the possession of the Department of Justice pertaining to alleged reprisals
and the alleged failure of the OIC to investigate the wrongdoing. Whether Mr.
Friday had access or not to such records is in my view immaterial as the
request to access Department of Justice files was beyond the scope of rule 317,
as I will discuss below.
[25]
I also
denied the request to postpone the hearing to allow for the cross-examination
of Ms. Howland on her affidavit under rule 83. While the applicant had signalled
prior to the hearing that he might wish to do so, no steps had been taken to
arrange a cross-examination. Moreover, the subjects which Mr. Detorakis indicated
he wished to explore with Ms. Howland were not, in my view, relevant to the
motion. In seeking to cross-examine, the applicant sought discovery on matters
beyond the scope of the motion and, indeed, beyond the scope of the underlying
application. This is not a proper use of the right to cross-examine on an
affidavit in a motion: Merck & Frosst Canada Inc. v. Canada (Minister of National Health and
Welfare)
(1994), 169 N.R. 342, 55 C.P.R. (3d) 302 (F.C.A.).
[26]
While the
denial of the right to cross-examine should only be done in exceptional
circumstances, my conclusion that this is such a case was fortified by reading the
transcript of the cross-examination of a legal assistant to counsel for the
respondent conducted by Mr. Detorakis in Ottawa on September 29, 2008 and which
was included in his motion record on the completeness issue. The transcript of
this cross-examination reveals that Mr. Detorakis conducted an unnecessary,
confusing and hectoring examination of the legal assistant on matters irrelevant
to the motion. While this may be attributable to his lack of legal knowledge
and experience, it cannot be condoned by the Court.
[27]
The legal assistant’s
affidavit had been tendered in support of the motion to substitute the Attorney
General of Canada as respondent, an amendment required by rule 303 and which
would normally not invite any cross-examination. Indeed, Justice Phelan’s order
of October 7, 2008 states that the applicant’s resistance to this motion was
unmerited, a view shared by Justice Létourneau in dismissing Mr. Detorakis’
appeal with costs. In this instance, I concluded that nothing material would be
gained from allowing Mr. Detorakis to cross-examine Ms. Howland on the matters
addressed in her affidavit, and in light of the prior experience, to permit it
might expose her needlessly to similar treatment.
[28]
The third
preliminary matter raised by Mr. Detorakis was an allegation that Mr. Friday
had made a false representation to the Court as the certified tribunal record
of July 24, 2008 did not contain the “Analysis of Receivability” document attached
as exhibit “E” to Ms. Howland’s affidavit. Mr. Detorakis requested that the
Court require that Mr. Friday appear to answer to contempt allegations for
having certified an incomplete record and that the Court invoke the assistance
of the Attorney General to conduct an investigation.
[29]
Mr.
Detorakis submits that exhibit “E” was not included in the certified tribunal
record because it would have disclosed that the Deputy Commissioner and the
Director General were not in support of Mr. Calvert’s recommendation and the
Commissioner’s decision. He argues that this is supported by the absence of
their initials on the document, by Ms. Howland’s averment that the
recommendation went to them for review and approval and by the fact that both
officials have since left the office.
[30]
It is
clear from Ms. Howland’s affidavit and from the face of the document itself that
Mr. Calvert’s analysis and recommendation was before the Commissioner when she
made her decision and contained the rationale for why an investigation should
not proceed.
[31]
In the
absence of a compelling reason not to produce the document, exhibit “E” should
have been included in the tribunal record certified by Mr. Friday. If there was
a reason not to produce it as part of the certified record, a timelier
objection should have been made under rule 318 and the Court’s directions sought
as to how to proceed. In light of its production now, as part of the
respondent’s motion record, the Court can only conclude that there was no
reason not to produce the document as part of the response to the rule 317
request.
[32]
No
explanation has been provided by the respondent for why the document was not
included in the certified tribunal record in reply to the request in the notice
of application or to Mr. Detorakis’ August 15, 2008 letter. The objection in
the September 24, 2008 letter from Mr. Friday pertained to Mr. Detorakis’ other
extraneous requests and not to documents that were actually before the
Commissioner when she made her request. In fact, Mr. Friday compounded the
error by stating incorrectly that “[t]he certified record contained all the
materials which were actually before the Public Sector Integrity Commissioner
when a decision was made on her behalf.” The record was incomplete and the
decision was not made “on her behalf” but rather by the Commissioner as the
statute requires. As set out in paragraph 25(1)(g) of the PSDP Act, the
decision to refuse to investigate is not one of the powers the Commissioner may
delegate.
[33]
That
being said, in my view no valid purpose would be achieved at this stage of the
proceedings in embarking upon an inquiry as to why the oversight occurred. The failure to comply with rule 317 is not a reviewable error but
may be dealt with by an order of the Court under rule 318 to produce the
documents within a specified time and to extend the time for filing application
records: Malkine v. Canada (Minister of Citizenship and Immigration) (1999),
177 F.T.R. 200, 3 Imm. L.R. (3d) 122.
[34]
In this case, the remedy that a rule 318 order would
provide has already been achieved by the production of the record as an exhibit
to Ms. Howland’s affidavit. Moreover,
the substantive content of Mr. Calvert’s analysis and recommendation was
conveyed to Mr. Detorakis in the decision letter and in the other documents provided on July 24, 2008.
[35]
I note that to be properly introduced as
evidence on the application, the tribunal record must be appended as an exhibit
to an affidavit filed by the applicant as part of his record under rule 306 or
by the respondent under rule 307: Canada (Attorney General) v. Lacey, 2008
FCA 242, 169 A.C.W.S. (3d) 939.
[36]
In the circumstances of this application, it
would be appropriate for the record to be introduced through an affidavit submitted
by the respondent as part of his application record. Mr. Detorakis may seek to
cross-examine the maker of the respondent’s affidavit subject to the directions
of the case management judge as to scope and the manner in which it is to be
conducted. It may also be appropriate for the respondent to make available to
Mr. Detorakis the present addresses of Messrs Watson and Lefebvre to assist him
in preparing his application record.
The completeness motion:
[37]
As set out
in the notice filed initially on January 2, 2009 and re-filed on January 19, 2009 this motion was:
1. To find that the tribunal certificate,
issued by PSIC General Counsel Joe Friday, is inaccurate and the tribunal record
that was forwarded with the certificate is incomplete.
2. To order that the certificate,
issued by PSIC General Counsel Joe Friday, be corrected to state that the
decision-maker was Deputy Commissioner Wayne Watson.
3. To order the PSIC
Commissioner to forward the tribunal material that the applicant had requested
pursuant to rule 317 on July 11, 2008 and on August 15, 2008.
4. To order the PSIC General
Counsel Joe Friday, who is a lawyer for the Department of Justice, to forward
with the tribunal record the Department of Justice ministerial correspondence
and other Department of Justice material pertaining to the applicant’s
complaint about wrongdoing in the Public Service that Mr. Friday had access at
the time PSIC decided the applicant’s disclosures.
5. Any order or direction that
the case management judge finds just for the circumstances.
[38]
During the
course of his oral submissions and in a document tendered during the hearing,
Mr. Detorakis requested that the remedy sought in the completeness motion be
revised. I have consolidated his requests as follows:
1. To order the certificate of
record, issued by PSIC General Counsel Mr. Joe Friday on July 24, 2008, be
struck.
2. [withdrawn]
3. To order the Commissioner:
i. To forward all physical and
electronic documents in PSIC’s files and archives including memoranda, notes of
minutes, e-mails, CMS records, reports, authored or received by PSIC staff and
officers, including the following individuals, C. Ouimet, W. Watson, A.
Lefebvre, M. Hardy, R. Calvert, and J.P. Belanger, about:
a. The complaint of reprisal
of John Detorakis that PSIC received on May 21, 2008.
b. The disclosure of
wrongdoing from John Detorakis PSIC received on April 16, 2008.
ii. To forward all PSIC’s
documents describing the PSIC processes for the processing of public servants’
complaints of reprisals and of public servants’ disclosures of wrongdoing.
iii. To forward the records of
precedents the applicant requested pursuant to rule 317 with the notice of his
application.
iv. To forward the Charter of
the Heads of the Federal Administrative Tribunals Forum.
4. To order the production of
all material in the possession of the respondent that is relevant to the review
grounds of bias.
[39]
As noted
above, the tribunal record will only serve as evidence on the application when it
is attached as an exhibit to an affidavit tendered by one of the parties. The
error by omission has been corrected. The certificate is not a pleading as
defined in rule 2. A motion to strike is inappropriate.
[40]
With
regard to the further relief sought in the form of a production order, rule 317
does not provide a means to conduct a broad discovery of records held by a
third party in a judicial review application, a procedure which is intended to
be summary and expedited.
[41]
The
tests under rule 317 are possession and relevance. In this instance, the documents
submitted to the PSIC by Mr. Detorakis in relation to the disclosure and those
prepared within PSIC and which were considered by the Commissioner in arriving
at her decision are relevant to the underlying application. The applicant can’t
use the rule 317 procedure to embark upon a “fishing” expedition to rummage
through the Commission’s records or those of another department: Friends of
the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (1997), 130 F.T.R. 223 (F.C.T.D.),
46 Admin. L.R. (2d) 144; 1185740 Ontario Ltd. v. Canada (Minister of National Revenue)
(1999), 247
N.R. 287 (F.C.A.), 91 A.C.W.S.
(3d) 922.
[42]
As was
stated by the Supreme Court of Canada in May v. Ferndale Institution,
2005 SCC 82, [2005] 3 S.C.R. 809, in the administrative law context
the duty of procedural fairness generally requires that the decision-maker disclose
the information he or she relied upon. The requirement is that the individual
must know the case he or she has to meet. That doesn’t require disclosure of
all records related to an investigation: Ciba-Geigy Canada Ltd. v. Canada
(Patented Medicine Prices Review Board), 83 F.T.R. 2, 170 N.R. 360 (F.C.A.);
Canada (Director of Investigations and Research, Competition Act) v. D &
B Companies of Canada Ltd. (1994), 176 N.R. 62, 58 C.P.R. (3d) 353 (F.C.A.).
[43]
In my
view, the further records Mr. Detorakis seeks are not relevant to a
determination of the merits of the underlying application, that is whether the
Commissioner erred in making the decision not to investigate because of the
assessment conducted by the OIC. Accordingly, the motion is dismissed.
The pleadings motion:
[44]
In his second
motion, Mr. Detorakis seeks leave to file an amended notice of application pursuant
to rule 75 to expand the grounds to include (a) the claim that he had a legitimate
expectation that he would be provided a reasonable opportunity to put forward his
case and, (b) the allegation that the PSI Commissioner was biased or that a
reasonable apprehension of bias arises from her association with the former Commissioner
of the Canadian Nuclear Safety Commission.
[45]
At the hearing,
Mr. Detorakis abandoned the claim in his written representations that a
reasonable apprehension of bias arose from the prior employment of then PSI
Deputy Commissioner, Mr. Watson, at the Office of the Privacy Commissioner when
his initial complaint was made to that office in 2006 prior to it being
redirected to the OIC.
[46]
The
principal grounds for judicial review set out in the notice of application
filed on July 11,
2008 are:
(a) that the Commissioner
based her decision not to accept the disclosure on the erroneous finding that
the Information Commissioner had dealt with the disclosure; and
(b) that the Commissioner
failed to observe principles of natural justice and procedural fairness by not
providing the applicant with a reasonable opportunity to put his case or to
show cause why the decision to decline to investigate should not be taken.
[47]
As
submitted by the respondent, legitimate expectation is an aspect of procedural
fairness. This principle
affords a party affected by the decision of a public official an opportunity to
make representations in circumstances where, based on the conduct of the public
official, the party has been led to believe that his or her rights would not be
affected without consultation:
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R.
1170 at 1203-1204, 75 D.L.R. (4th) 385. There
is no obstacle to the applicant pleading this principle as an element of his case
as it is presently framed in the notice of application and, therefore, no need
for an amendment for that reason.
[48]
The
allegation of bias or of a reasonable apprehension of bias is more problematic.
The respondent opposes this amendment and submits that it is appropriate for
the Court to determine whether there is a “triable issue” and, if satisfied
that there is none, to dismiss the motion: Charette v. Delta Controls,
2003 FCA 425,
312 N.R. 295. Even if the facts as asserted
by the applicants are accepted as is the practice on motions to amend, the
respondent argues that there is no prima facie case for bias or a
reasonable apprehension of bias.
[49]
The applicant
relies on the statement of Justice Douglas Campbell in Truehope Nutritional Support
Ltd. v. Canada (Attorney General), 2004 FC 658 at paragraph 21, 251 F.T.R. 155 that,
(…) an amendment should be allowed at any stage of an action
for the purpose of determining the real questions in a controversy between the
parties, provided that it will not result in an injustice to the other party
not capable of being compensated through costs, and provided that it would
serve the interests of justice.
[50]
As far as
I am able to determine from the applicant’s written representations and oral
submissions, Mr. Detorakis seeks to try to establish that the PSI Commissioner
declined to investigate his disclosure because of a collegial association with
Ms. Linda Keen, the former CNSC Commissioner. He asserts that Ms. Keen was
active in a network entitled the Heads of Federal Administrative Tribunals Forum
or in other meetings of senior public servants in which Mme Ouimet participated,
and that as a consequence, Mme Ouimet did not wish to embarrass Ms. Keen by
opening an investigation into CNSC management actions.
[51]
I stress that
no evidence to support the asserted facts has thus far been put forward by Mr.
Detorakis, but in considering whether to allow an amendment, I must assume that
the asserted facts are true: VISX Inc. v. Nidek Co. (1996), 209 N.R.
342, 72 C.P.R. (3d) 19 (F.C.A.).
[52]
The test
for disqualifying bias or perceived bias is well established in law. The
Supreme Court of Canada has laid out the relevant considerations to take into account
when dealing with such allegations in a number of decisions, starting with Committee
for Justice and Liberty et al v. National Energy Board et al., [1978] 1 S.C.R. 369, followed by R. v. S. (R.D.),
[1997] 3 S.C.R. 484, 151
D.L.R. (4th) 193
and Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259. A reasonable apprehension of
bias may be raised where an informed person, viewing the matter realistically
and practically and having thought the matter through, would think it more
likely than not that the decision maker would unconsciously or consciously
decide the issue unfairly.
[53]
Allegations
of bias are very serious matters. They call into question the integrity of the
decision maker. The burden of demonstrating a
reasonable apprehension of bias rests with the party arguing for
disqualification. Moreover, the inquiry that must be conducted is very
fact-specific and there can be no “shortcuts” in the reasoning that supports
the allegation: Wewaykum, above at paras. 59 and 77.
[54]
The presumption is that a board or
tribunal is impartial. The grounds must be substantial. A real likelihood or
probability of bias must be demonstrated. Mere suspicion is not enough. It is
the informed person’s perception that counts, not uniformed speculation. Delay
in raising an apprehension of bias can be indicative that the grounds lack
substance.
[55]
Mere
membership in an organization or association with a group will not normally be
sufficient to satisfy the test unless statements or actions by that
organization or group demonstrating bias may fairly be attributed to the
decision maker: see for example, Helow (Fatima) v. Secretary of State For
The Home Department and Another, [2008] UKHL 62 (H.L.).
[56]
Mr.
Detorakis submits that he should be allowed to plead that Mme Ouimet’s
association with or link to Ms. Keen, the former CNSC Commissioner, is grounds for
a reasonable apprehension of bias. However, he has not put forward any
assertions of fact in support of this beyond Mme Ouimet’s possible
participation in the networks of senior federal public servants. That is not
sufficient, in my view, to base a claim of bias or perceived bias and is the
type of “shortcut” in reasoning against which the jurisprudence cautions.
[57]
The
inference of a lack of impartiality which Mr. Detorakis wishes the Court to draw is
based on mere speculation. Even assuming that the asserted facts are true, the
applicant has not established that there is a triable issue to be determined
with respect to bias or apprehended bias in this matter. To allow the amendment
would cause prejudice to the respondent who would be required to defend this
application on an entirely different basis than had been set out in the notice.
While that may be compensable through an award of costs, the potential injury
to personal reputations occasioned by unsubstantiated allegations is not as easily
remedied. In the circumstances, I am not satisfied that the amendment would be
in the interests of justice.
[58]
I am also
mindful of the statutory imperative set out in subsection 18.4(1) of the Federal
Courts Act that applications for judicial review be heard without delay and
in a summary way. The requested amendment would significantly contribute to
further delay without materially advancing the hearing of the application. In
the result, the motion is dismissed.
Costs:
[59]
The
respondent has sought his costs on the completeness motion and submits that the
motion has caused unnecessary delay in the hearing of the application on the
merits and that the respondent will be prejudiced by the delay with the
departure of witnesses from the PSIC. No separate claim of costs has been made
for the amendment motion. The applicant seeks his travel and accommodation
costs and disbursements for copying documents.
[60]
In advance
of the hearing, counsel for the respondent offered not to seek costs if the
applicant agreed to request leave to proceed with the motions in writing under rule
369. The applicant declined to do so in the apparent belief that the
completeness motion had to be heard orally as it had been set down for hearing
by the case management judge. He also declined to proceed in writing on the
amendment motion unless the respondent first disclosed his reasons for opposing
the motion, an unreasonable precondition in my view.
[61]
An award
of costs would normally follow the outcome of the motion. However, the
practical effect in this instance was the production of the “Analysis of
Receivability”. In the result, success was divided and the parties should bear
their own costs. The parties should now proceed with the preparation of their
application records and avoid further procedural steps that will delay the
hearing of the application.
ORDER
THIS COURT ORDERS that:
1. the applicant’s motion filed January 19, 2009 for
leave to amend his notice of application filed July 11, 2008 is dismissed;
2. for greater certainty and notwithstanding
paragraph 1, the applicant may allege a denial of procedural fairness in his
application record on the ground that he had a legitimate expectation that he
would be consulted before the decision under review was made;
3. the applicant’s motion filed January 19, 2009 for
an order to find that the tribunal certificate is incomplete and for related
relief, is dismissed;
4. the parties shall bear their own costs of these
motions in any event of the cause.
“Richard
G. Mosley”
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