Date: 20070330
Docket: T-2274-05
Citation:
2007 FC 304
Ottawa, Ontario, March 30, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
MICHEL
GAUTHIER
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
BACKGROUND
[1]
Trust in
the public service is a pillar on which the perception of the government
apparatus is founded. It is the very leitmotif and the driving force behind the
public’s sense of security. Without this, how can the public trust in the
social contract that it has with delegates and sub-delegates to handle the
collective affairs of the state?
INTRODUCTION AND
JUDICIAL PROCEEDINGS
FACTS
[3]
In the
context of his duties as an investigator, Mr. Gauthier carries out investigations
in regard to the application of the Employment Insurance Act, 1996, c.
23, the Unemployment Insurance Act and their respective regulations for
the purposes of detecting fraud and abuse. These investigations potentially
result in fines, financial penalties or even the calculation of overpayments,
as appears from a copy of Mr. Gauthier’s job description. (Affidavit of
Nicole Barbeau, job description, respondent’s record, tab A, page 6.)
[4]
Mr. Gauthier
must work closely with the public and employers. He must maintain close contact
with local police, recommend administrative penalties or legal action, file
informations, etc. (Affidavit of Nicole Barbeau, supra.)
[5]
As a
municipal counsellor, Mr. Gauthier is called to meet citizens and
businesspeople from his electoral district to inter alia, listen to
their claims and obtain changes in their favour. Yet, in the context of his
duties as an investigator, he is called to meet these same individuals to
prevent fraud or to detect it and establish financial penalties or other
punitive measures. He can even recommend legal action. (Affidavit of Nicole
Barbeau, supra.)
Conflict of interest
[6]
As a
public servant, Mr. Gauthier is subject to the Values and Ethics Code
for the Public Service. (Affidavit of Nicole Barbeau, Values and Ethics
Code for the Public Service, respondent’s record, tab A, page 21.)
[7]
The Values
and Ethics Code is a powerful tool enabling the public service to preserve
and enhance the public’s confidence in its integrity. Indeed, each Minister is
responsible for maintaining this public confidence and for keeping the public
impartial and non-partisan. (Affidavit of Nicole Barbeau, supra.)
[8]
As stated
in the Values and Ethics Code for the Public Service, each public
servant has the responsibility of taking the measures necessary to ensure that
they are not in a conflict of interest situation:
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Public servants have
the following overall responsibilities:
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Responsabilité de tous
les fonctionnaires:
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(a) In carrying
out their official duties, public servants should arrange their private
affairs in a manner that will prevent real, apparent or potential conflicts
of interest from arising.
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a) Dans
l’exercice de leurs fonctions officielles, organiser leurs affaires
personnelles de façon à éviter toute forme de conflit d’intérêts réel,
apparent ou potentiel.
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(b) If a
conflict does arise between the private interests and the official duties of
a public servant, the conflict should be resolved in favour of the public
interest.
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b) S’il y a d’éventuels conflits entre
l’intérêt personnel du fonctionnaire et ses fonctions et responsabilités
officielles, l’intérêt public doit primer dans le règlement desdits conflits.
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Decision of the Assistant Deputy Minister
[9]
It was in
this context that Assistant Deputy Minister Nicole Barbeau learned, following
the confidential report submitted by Mr. Gauthier on September 15, 2004,
that Mr. Gauthier was not only performing the duties of municipal
councillor for the region of the merged city of Saint-Jean-sur-Richelieu, but
that he intended to run again in the 2005 fall elections. (Mr. Gauthier’s
affidavit, Nicole Barbeau’s letter dated February 23, 2005, applicant’s record,
tab 4, page 58, exhibit “G”.)
[10]
Ms.
Barbeau studied the situation and determined that there was the appearance of a
conflict of interest since Mr. Gauthier was called to carry out
investigations in the region of the city where he was a municipal councillor.
(Affidavit of Mr. Gauthier, supra.)
[11]
Ms.
Barbeau therefore asked him to [translation]
“cease performing the duties of councillor for the city of
St-Jean-sur-Richelieu unless measures are taken so that you perform your duties
in a region that does not include this city.” (Affidavit of Michel Gauthier, supra.)
[12]
Ms.
Barbeau acknowledged that she was aware of the decision made by her
predecessor, Danielle Vincent, in 1999, authorizing Mr. Gauthier to
pursue his activities as a municipal councillor in the Iberville region at the
time.
[13]
Ms. Barbeau
was however of the opinion that the situation was different. It was therefore
in order to protect the integrity of the investigator’s role, and that of the
public service, that she asked Mr. Gauthier to change the situation in
order to avoid the potential for conflict or appearance of conflict of interest
on a daily basis. (Affidavit of Nicole Barbeau, respondent’s record, tab A,
page 3, paragraph 12; Affidavit of Michel Gauthier, grievance of
April 21, 2005, applicant’s record, tab 4, page 64, exhibit “I”.)
[14]
Following
discussions with local management, Yvan Desroches, Director of integrity
services, informed Mr. Gauthier that he had three options available to
him:
1. Cease your political
activities in the region;
2. Resign from your employment on
a temporary or permanent basis;
3. Submit a written request for
transfer.
(Affidavit of Michel Gauthier, Yvan Desroches’ e-mail dated
April 21, 2005, applicant’s record, tab 4, page 68, exhibit “J”.)
[15]
Following
these discussions, Mr. Gauthier continued to perform the same duties and
remained a municipal councillor in Saint-Jean-sur-Richelieu. He agreed to
perform his work only in the city of Brossard.
[16]
Mr. Gauthier
however filed a grievance on April 21, 2005, contesting Ms. Barbeau’s
decision. The grievance read as follows:
[translation]
I CONTEST NICOLE BARBEAU’S DECISION DATED
24/03/05: YOU MUST THEREFORE CEASE TO PERFORM THE DUTIES OF COUNCILLOR IN THE
CITY OF SAINT-JEAN-SUR RICHELIEU UNLESS MEASURES ARE TAKEN SO THAT YOU PERFORM
YOUR DUTIES AS INSPECTOR EXCLUDING THIS CITY. I CONSIDER THAT BY MAKING THIS
DECISION, MY EMPLOYER BREACHED THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS.
[17]
The
following corrective measures were requested through this grievance:
THAT THE EMPLOYER SET ASIDE THIS
DECISION.
THAT IT IMMEDIATELY CEASE THE MEASURES
AFFECTING ME IN A REGION OTHER THAN SAINT-JEAN-SUR-RICHELIEU.
THAT THE EMPLOYER RESPECT THE CANADIAN
CHARTER OF RIGHTS AND FREEDOMS AND NOT DEPRIVE ME OF MY RIGHT TO SERVE THE
COMMUNITY.
[18]
Following
his discussions with local management, Mr. Gauthier signed a transfer
request dated July 11, 2005. He then continued to perform the same
duties, but from the Brossard office. (Affidavit of Michel Gauthier, transfer
request, applicant’s record, tab 4, page 74, exhibit “L”.)
[19]
Phil Jensen
upheld Ms. Barbeau’s decision at the final level of the grievance. The
applicant is seeking the judicial review of this last decision. (Affidavit of
Nicole Barbeau, respondent’s record, tab A, page 87.)
ISSUE
[20]
Was the
decision of Assistant Deputy Minister Phil Jensen, dated November
22, 2005, patently unreasonable?
ANALYSIS
Standard of review
[21]
The
Assistant Deputy Minister has in-depth knowledge of the politics, procedures
and rules in effect within the Department, including the Values and Ethics
Code for the Public Service, as well as the duties performed by
Mr. Gauthier. Accordingly, determining whether or not there is a conflict
of interest is clearly within his expertise. His decision is also protected by
a privative clause. The standard of patent unreasonableness therefore applies.
[22]
The
interaction between the four elements of the pragmatic and functional analysis
determines the degree of deference that must be given to an administrative
decision. (Dubé v. Canada (Attorney General), 2006 FC 796, [2006]
F.C.J. No. 1014 (QL), paragraph 21.)
[23]
Mr. Jensen’s
decision is subject to a privative clause. Pursuant to section 214 of the Public Service Labour Relations
Act, 2003, c. 22 (PSLRA), any decision made at the final level
of the grievance process that cannot be referred to adjudication is final and
binding.
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214. If an
individual grievance has been presented up to and including the final level
in the grievance process and it is not one that under section 209 may be
referred to adjudication, the decision on the grievance taken at the final
level in the grievance process is final and binding for all purposes of this
Act and No. further action under this Act may be taken on it.
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214. Sauf dans
le cas du grief individuel qui peut être renvoyé à l’arbitrage au titre de
l’article 209, la décision rendue au dernier palier de la procédure
applicable en la matière est définitive et obligatoire et aucune autre mesure
ne peut être prise sous le régime de la présente loi à l’égard du grief en
cause.
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[25]
The
Assistant Deputy Minister has in-depth knowledge of the type of work done by
Mr. Gauthier and the policies that apply within the Department in conflict
of interest matters. This knowledge also warrants a high degree of judicial
deference. (Dubé, supra.)
[26]
Mr. Jensen’s
decision bears essentially on a factual issue. In fact, it is based on
Mr. Gauthier’s duties as well as on the activities performed by Mr.
Gauthier as municipal councillor in the city of Saint-Jean-sur-Richelieu. His
finding to the effect that there is an appearance of conflict of interest therefore
is worthy of a high degree of deference.
[27]
Since this
Court does not have in-depth knowledge of the applicant’s duties and since it
cannot substitute its opinion for that of the Assistant Deputy Minister on this
point, the decision made at the final level of the grievance must be submitted
to the standard of patent unreasonableness.
Available recourse and
recourse sought by Mr. Gauthier
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209. (1) An employee may refer to adjudication an
individual grievance that has been presented up to and including the final
level in the grievance process and that has not been dealt with to the
employee’s satisfaction if the grievance is related to
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209. (1) Après l’avoir porté jusqu’au dernier
palier de la procédure applicable sans avoir obtenu satisfaction, le
fonctionnaire peut renvoyer à l’arbitrage tout grief individuel portant sur:
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…
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[...]
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(c) in the case
of an employee in the core public administration,
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c) soit,
s’il est un fonctionnaire de l’administration publique centrale:
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…
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[...]
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(ii) deployment under
the Public Service Employment Act without the employee’s consent where
consent is required; or
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(ii) la mutation sous
le régime de la Loi sur l’emploi dans la fonction publique sans son
consentement alors que celui-ci était nécessaire;
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[29]
This
statutory regime implemented by Parliament is preferred over any other
recourse. The applicant decided to avail himself of his right to resort to a
grievance and to directly address this Court. (Vaughan v. Canada, [2005]
1 S.C.R. 146, [2005] S.C.J. No. 12 (QL); Estwick v. Canada (Treasury
Board), 2004 FC 970, [2004] F.C.J. No. 1259 (QL).)
Conflict of interest
[30]
Mr.
Jensen’s decision was not patently unreasonable considering the appearance of
conflict of interest, which should be treated the same way as a real conflict
of interest. (Threader v. Canada (Treasury Board), [1987]
1 F.C. 41, [1986] F.C.J. No. 411 (QL).)
[31]
As the
Federal Court of Appeal stated in Threader, supra, the employer
must determine the applicable rules in matters of conflict of interest:
[16] .
. . The Crown is quite entitled to demand different
standards of its employees than those prevailing in the private sector. It is
not only entitled in law to enjoin its servants from putting themselves in a
position of an apparent conflict of interest; the rationale for its doing so is
patently obvious.
[32]
The
appropriate test for determining whether or not there is an appearance of
conflict of interest was formulated as follows by the Federal Court of Appeal
in Threader, supra:
Would an informed person, viewing the matter realistically and
practically and having thought the matter through, think it more likely than
not that the public servant, whether consciously or unconsciously, will be
influenced in the performance of his official duties by considerations having
to do with his private interests?
[33]
In the
context of his duties, Mr. Gauthier is called to carry out investigations
in the municipal region regarding citizens who reside in the city of
Saint-Jean-sur-Richelieu, including his own electoral district. This is an
apparent risk of conflict of interest. For example, a citizen can be under
investigation by the applicant and in the days that follow have to address him
for the issuance of a permit or a change of zoning. Similarly, an individual
who is refused any given permit by the city following an investigation carried
out by the applicant could legitimately believe that the applicant’s duties
with the Department influenced the city’s decision or that the information
gathered for an investigation had been used by the city.
[34]
In another
scenario, a citizen addressing the applicant in his capacity as a municipal
councillor, could the following day be the subject of an investigation by the
applicant, or even of an administrative penalty.
[36]
In such
circumstances, it is indisputable that a well-informed individual would
perceive the applicant as wearing two hats simultaneously and would have
difficulty believing that the applicant’s personal activities would never
influence his professional activities and vice-versa.
[37]
As the
Federal Court of Appeal stated in Threader, supra, the employer
cannot tolerate such a situation:
[16] .
. . Manifestly,
the public service will not be perceived as impartial and effective in
fulfilling its duties if apparent conflicts between the private interests and
the public duties of public servants are tolerated.
[38]
As stated
in the Values and Ethics Code for the Public Service, the public servant
must take adequate measures to prevent real, apparent or potential conflicts of
interest from arising. Public servants’ responsibilities are defined as
follows:
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Public servants have
the following overall responsibilities:
|
Responsabilité de tous
les fonctionnaires:
|
|
(a) In carrying
out their official duties, public servants should arrange their private
affairs in a manner that will prevent real, apparent or potential conflicts
of interest from arising.
|
a) Dans
l’exercice de leurs fonctions officielles, organiser leurs affaires
personnelles de façon à éviter toute forme de conflit d’intérêts réel,
apparent ou potentiel.
|
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(b) If a
conflict does arise between the private interests and the official duties of
a public servant, the conflict should be resolved in favour of the public
interest.
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b) S’il y a
d’éventuels conflits entre l’intérêt personnel du fonctionnaire et ses
fonctions et responsabilités officielles, l’intérêt public doit primer dans
le règlement desdits conflits.
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Public
servants also have the following specific duties:
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Le fonctionnaire a aussi les responsabilités individuelles
suivantes:
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(a)
They
should not have private interests, other than those permitted pursuant to
these measures, that would be affected particularly or significantly by
government actions in which they participate.
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a) Il doit
se départir de ses intérêts personnels, excluant ceux autorisés par les
présentes mesures, lorsque sa participation à des activités gouvernementales
peut avoir une influence quelconque.
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[39]
These
rules were enacted in order to ensure impartiality, integrity and objectivity
in the public service. They are an integral part of the public servants’ duty
of loyalty, intrinsic to the employer-employee relationship. (Fraser v.
Canada (Public Service Labour Relations Board), [1985] 2 S.C.R. 455, [1985]
S.C.J. No. 71 (QL); Osborne v. Canada (Treasury Board), [1991] 2
S.C.R. 69, [1991] S.C.J. No. 45 (QL).)
[40]
This duty
of loyalty presupposes that all public servants must comply with these
standards in order to maintain the public’s trust in the public service:
[43] .
. . The tradition emphasizes the characteristics of impartiality,
neutrality, fairness and integrity. A person entering the public service or one
already employed there must know, or at least be deemed to know, that
employment in the public service involves acceptance of certain restraints. . .
.
(Fraser, supra)
[41]
These
restrictions must, in this case, be considered in light of the duties of public
servants under the Values and Ethics Code for the Public Service. The
employer must therefore intervene to require that the applicant comply with the
Code put an end to a real or apparent conflict of interest situation.
Accordingly, by abolishing any possibility that the applicant would carry out
investigations in the region of Saint-Jean-sur-Richelieu, the employer
addressed the concerns regarding the existence of a real or apparent conflict.
[42]
The
employer was satisfied that the appearance of conflict was eliminated since the
applicant would no longer be in contact with the same population pool for the
purposes of his investigator duties and his activities as municipal councillor.
The fact that the employer proposed the option of accepting a transfer to the
city of Brossard office is not paradoxical. Such a compromise indeed had the
effect of eliminating the employer’s concerns.
[43]
Public
servants are not absolutely forbidden to carry out political activities in the
municipal arena. They must nevertheless comply with the Values and Ethics
Code for the Public Service. There is an additional requirement under the
new Public Service Employment Act in that public servants must also
obtain permission from the Public Service Commission before becoming a
candidate. This new law does not however apply to the applicant, as he filed
his application for judicial review before it came into force.
Canadian Charter of Rights and Freedoms, Part I, Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (Charter)
[44]
In
response to the arguments raised by the applicant, the rights guaranteed to the
applicant under the Charter were not violated in this case since
Mr. Gauthier was never forbidden to run in municipal elections.
[45]
In this
case, the employer required the applicant to take the measures necessary to
avoid a situation of real or apparent conflict of interest. In order to do so,
he was given three options:
1. Cease your political
activities in the region;
2. Resign from your employment on
a temporary or permanent basis;
3. Submit a written request for
transfer.
[46]
In fact,
the employer simply required Mr. Gauthier to comply with the Values and
Ethics Code for the Public Service and proposed solutions to him for doing
so. The applicant chose the option to transfer to Brossard’s regional office.
There was no prejudice to Mr. Gauthier. He continued to perform the same
duties and still acts as a municipal councillor in Saint-Jean-sur-Richelieu.
His travelling time has certainly increased, but a grievance has already been
filed on that point.
[47]
This
situation was a viable compromise for the employer because the conflict of
interest resulted from the perception that the public could have regarding the
applicant’s roles as investigator and municipal councillor in the city of
Saint-Jean-sur-Richelieu region and the influence that one could have over the
other. This manner of proceeding does not breach the rights conferred to
Mr. Gauthier under the Charter. (Haydon v. Canada, [2000]
F.C.J. No. 1368 and affirmed by 2005 FCA 249, [2005]
F.C.J. No. 1146 (QL), Fraser, supra; Jones v. Ontario
(Attorney General), [1992] O.J. No. 163 (QL).)
[48]
Mr. Gauthier
indeed was not deprived of the opportunity to continue his activities as a
municipal councillor, as an acceptable alternative had been proposed. The fact
that Mr. Gauthier had to choose between different solutions in order to
comply with the Values and Ethics Code for the Public Service and had
to increase his travelling time is certainly not, in the case at bar, a breach
of rights conferred under the Charter.
[88] . . . in
cases that fall within the Fraser qualifications, the public interest
outweighs the objective of an impartial and effective public service.
[89] In
conclusion, I am of the view that the common law duty of loyalty as articulated
in Fraser sufficiently accommodates the freedom of expression as
guaranteed by the Charter, and therefore constitutes a reasonable limit within
the meaning of section 1 of the Charter.
(Haydon, supra)
CONCLUSION
[50]
To
summarize, the fact that Mr. Gauthier was performing his investigation
duties in the same region as the city for which he was a municipal councillor
amounts to an appearance of conflict of interest situation. Mr. Gauthier
had to take adequate measures to rectify this situation. The employer was
correct in deciding to require the applicant to comply with the Values and
Ethics Code for the Public Service, as well as in proposing a few options
for doing so. This was not a breach of the Charter. Mr. Gauthier did not
suffer any prejudice and continues to carry out the same professional and
personal activities. Under the circumstances, the employer’s decision was not
patently unreasonable and the application for judicial review is therefore
dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed with costs.
“Michel
M.J. Shore”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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