Docket:
T-1210-13
Citation: 2013 FC 1128
Ottawa, Ontario, November
7, 2013
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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CHANTAL COUSINEAU-MAHONEY
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Applicant
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and
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THE PUBLIC SECTOR INTEGRITY COMMISSIONER, JOSÉE LÉPINE, LUCILLE
LEMIRE and GUY MCKENZIE
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Respondents
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REASONS FOR ORDER AND ORDER
Introduction
[1]
The Attorney General, on behalf of the named
respondents, seeks an order striking the applicant’s notice of application for
judicial review. In the alternative, it seeks an order to have the named
respondents struck and to have the Attorney General of Canada substituted as
the appropriate responding party.
[2]
The applicant seeks to prohibit or restrain an
ongoing investigation by the Public Sector Integrity Commissioner (hereinafter
“the Commissioner”) into allegations of wrongdoing made against her pursuant to
s. 26 of the Public Servants Disclosure Protection Act, SC 2005, c 46
[the Act].
[3]
I grant the motion to strike the application as
being contrary to the rule of non-interference with ongoing administrative
processes for the reasons that follow below.
Background
Facts
[4]
The applicant, Ms Cousineau-Mahoney, who is the
subject of the investigation referred to, is a former Vice President and Chief
Financial Officer of the Canadian School of Public Service [the “School”].
[5]
The investigation arises out of disclosures of
alleged wrongdoing by the applicant. The applicant alleges that some resentful
employees refused to accept the impact of the new agenda of the School. She
states that she became the victim of repeated defamatory attacks and threats
against her character, integrity, and personal safety.
[6]
On September 7, 2012, the applicant received a
Notice of Investigation from the Commission setting out six allegations of
misconduct claimed to have been put forward by Ms. Lépine and Ms. Lemire.
[7]
Also on September 7, 2012, the applicant learned
that confidential information about her from the Commission had been leaked
within the School, identifying her as a subject of an investigation and
describing the allegations against her. She complained to the Commission,
first by telephone on September 10, 2012, and then in a formal complaint on
September 13, 2012.
[8]
The applicant was notified by letter on
September 17, 2012 that the allegations against her had been modified. In fact,
they were not “modifications”, but six new allegations upon which the
Commission continued its investigation.
[9]
The applicant requested that the Commission
provide particulars of the allegations against her, since the existing
information consisted of bald statements and precluded her from being able to
identify the dates, events etc.
[10]
On July 10, 2013, the applicant was advised that
four of the six allegations had been dismissed and that the other two were
still under review. The applicant was also informed of the substance of the
disclosure against her in accordance with s. 27(2) of the Act.
[11]
On the same day the applicant filed a notice of
application (two other applications had previously been filed, but discontinued
in light of developments in the file). The application sought to quash the
investigation, or in the alternative requiring the Commissioner to provide
extensive disclosure into the investigation, as detailed in four pages of
particulars in the application.
[12]
The Attorney General argues that the application
was premature, as being contrary to the rule of non-interference with ongoing
administrative processes, which might in any event not come to a conclusion
against the applicant, thereby rendering the matter moot.
The Public Servants Disclosure
Protection Act
[13]
The Act, intended to protect whistleblowers,
also establishes a mechanism pursuant to ss. 12 and 13 for federal public
servants to disclose, in confidence, any information that they believe “could
show that a wrongdoing has been committed or is about to be committed” by a
public servant.
[14]
On receipt of a disclosure, the Commissioner
decides whether pursuant to s. 22(b) “there are sufficient grounds for further
action, which should justify the conduct of an investigation.” If after an
investigation a disclosure of wrongdoing is concluded to be well-founded, the
Commissioner’s remedial options are limited by ss. 24(g), 24(h) and 26(1) to
bringing the wrongdoing to the attention of the relevant chief executives and
making recommendations for corrective measures.
[15]
In addition, pursuant to s. 38(3.3) of the Act,
the Commissioner must report to Parliament founded cases of wrongdoing within
sixty days after the conclusion of the investigation.
[16]
In keeping with the Act’s objective of
protecting whistleblowers, the Commissioner is required by sections 22(e) and
22(f) to establish procedures which will ensure the confidentiality of
information collected in relation to disclosures and investigations and will
otherwise protect, to the extent possible in accordance with the law, the
identities of persons involved in an investigation.
[17]
Pursuant to s. 26(2), investigations are to be
conducted informally and expeditiously. The Commissioner has no obligation to
hold a hearing and pursuant to s. 27(3) “no person is entitled as of a right to
be heard by the Commissioner”. Additionally, s. 27(2) of the Act provides that
an investigator may notify a person whose conduct has been called into
question and inform him or her of the substance of the disclosure.
[18]
However pursuant to s. 27(3), if during the
course of an investigation, “it appears to the Commissioner that there may be
sufficient grounds to make a report or recommendation that may adversely affect
any individual….the Commissioner must, before completing the investigation take
every reasonable measure to give to that individual… a full and ample
opportunity to answer any allegation, and to be assisted or represented by
counsel, or by any person for that purpose.”
Issues
[19]
The issues are:
a.
Should the Court exercise its discretion to
strike the application to quash the investigation?
b.
Should the Court exercise its discretion to
strike the application ordering the Commissioner to provide the disclosure
demanded?
c.
In the alternative, should the Court strike the
individual respondents and substitute the Attorney General as the appropriate
responding party?
Analysis
Issue #1: Should the Court exercise its
discretion to strike the application seeking to quash the investigation?
[20]
There is no question that this Court is
empowered to summarily dismiss an improper notice of application, but that
doing so is an exceptional remedy. A motion to strike will not be granted
except in the most obvious and exceptional circumstances where there is no
reasonable prospect for success. In addition, the Court is required to accept
for the purposes of the motion the facts as stated in the application.
[21]
This said however, the rule of non-interference
with ongoing administrative processes is vigorously enforced, being permitted
only in the narrowest of exceptional circumstances measured against an
exceptionally high threshold. Indeed, the Federal Court of Appeal in CB
Powell Ltd v Canada (Border Services Agency), 2010 FCA 62 has specifically
limited “exceptional circumstances” to those where, without the interference of
the court, issues cannot be raised or an effective remedy granted. I quote the
relevant passage from the decision at para 33 as follows:
[33]…
Concerns about procedural fairness or bias, the presence of an important legal
or constitutional issue, or the fact that all parties have consented to early
recourse to the courts are not exceptional circumstances allowing parties to
bypass an administrative process, as long as that process allows the issues
to be raised and an effective remedy to be granted …
[Emphasis
added]
[22]
The applicant raises issues of bias, procedural
fairness, jurisdiction regarding one of the complaints and even that the
process was stillborn by the disclosure of the applicant’s identity at its
commencement. None of these issues are effectively prevented from being raised,
either at the time the applicant is provided with an opportunity to respond to
prospective negative conclusions of the Commissioner under section 27(3), or in
a judicial review proceeding that could be taken of the decision after the
report is issued.
[23]
In terms of an obstacle to raising issues, the
applicant was limited to arguing that even were the report eventually set aside,
she would suffer irreparable harm by the damage to her reputation caused by the
original placing of the report before Parliament.
[24]
I understand from counsel on behalf of the
Attorney General that a report would not be presented to Parliament pending the
outcome of a judicial review. But in any event, in my view a potential damage
to reputation is not a salient factor that would either be recognized as a
legitimate ground or a consideration of sufficient seriousness to permit
interfering with an ongoing administrative process as an “exceptional
circumstance”.
[25]
On the same basis described above, I also cannot
see any limitation on the applicant’s remedies if the administrative process
proceeds.
[26]
I also agree that the applicant’s request for
the intervention of the courts is clearly premature. To date the original six
grounds of complaint have been abandoned. Thereafter the Commissioner has
indicated that it would not be proceeding on four of the six additional
complaints.
[27]
There exists the possibility therefore, that the
complaints will be rejected in their entirety. If not, the remedy of having the
report set aside by a judicial review remains extant to provide an effective
remedy that would quash the report if found to have infringed administrative law
principles.
[28]
Accordingly, on the facts as described in the
application, I find no exceptional circumstances that would permit interference
with the Commissioner’s on-going investigation, with the result that the motion
is allowed, striking the remedy sought to restrain and prohibit the
investigation.
Issue #2: Should the Court exercise its
discretion to strike the application ordering the Commissioner to provide the
disclosure demanded?
[29]
In the alternative to quashing the
investigation, the applicant seeks an order directing the Commissioner to
provide extensive disclosure of reports, documentation, information and
evidence particularized in four pages of her application.
[30]
All of the same arguments with respect to the
non-interference with an ongoing administrative process would have the same
application to this request.
[31]
In addition, this claim is contrary to the
numerous provisions in the Act described above that provide the Commissioner
with extensive powers and discretion with respect to the conduct of the
investigation and the disclosure of information.
[32]
Accordingly, the remainder of the applicant’s
application for judicial review is also struck and the remainder of the
application dismissed.
Issue #3: Should the Court strike the
individual respondents and substitute the Attorney General as the appropriate
responding party?
[33]
This issue does not arise in light of my
conclusions above.
Conclusion
[34]
The Attorney General’s motion to strike the
applicant’s notice of application and to dismiss her application for judicial
review is granted with costs.
[35]
The Attorney General may file its submission on
cost not to exceed three pages within 15 days of the issue of this order. The
applicant may file responding submissions within 15 days thereafter. Further
reply submissions may be filed by the Attorney General if necessary within 10
days thereafter.
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