Date:
20130412
Docket:
T-281-12
Citation:
2013 FC 374
Ottawa, Ontario,
April 12, 2013
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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DANNY PALMER
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7. The applicant asks this Court to set aside the
decision of an adjudicator of the Public Service Labour Relations Board (PSLRB)
dated January 5, 2012, in which the adjudicator held that she was without
jurisdiction to deal with the applicant’s grievance.
Factual
background
[2]
Mr.
Danny Palmer (the applicant) was an intelligence officer with the Canadian
Security Intelligence Service (CSIS) since 1991. He was dismissed on June 18,
2003, effective July 2, 2003, on grounds of poor performance (Applicant’s
Record, Affidavit of Danny Palmer, para 18). The applicant held a Top Secret
security clearance for the duration of his employment. Upon termination, the
applicant’s Top Secret security clearance was cancelled.
[3]
The
applicant filed a grievance of his termination, which was dismissed by the
Director of CSIS on August 5, 2003. The applicant was advised by the CSIS
Employee Association that he could submit a supplemental grievance, which he
did in March 2004. CSIS objected to the referral of this supplemental grievance
for adjudication because it had been presented beyond the time limits and was
not a recognized procedure in CSIS’s policy (Applicant’s Record, Memorandum of
Fact and Law, Tab 5, p 2). The applicant’s grievance essentially claimed that
his termination was not for performance reasons, but was an arbitrary
disciplinary discharge done in bad faith. A hearing with the PSLRB was held on
February 1, 2006. PSLRB adjudicator Tarte decided that the applicant should be
entitled to present his supplemental grievance since he had received erroneous
advice from the CSIS Employee Association and he had diligently pursued his claim
(Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 6).
[4]
A
hearing on the merits of the grievance commenced on September 25, 2006
(Applicant’s Record, Memorandum of Fact and Law, Tab 5, p 4). At this time, the
applicant represented himself. He was granted a Secret level clearance for
purposes of adjudication only (Respondent’s Record, Vol 2, Tab 44). During the
hearing, CSIS presented witnesses. The applicant claimed to need access to Top
Secret documents to cross-examine some of the witnesses (Applicant’s Record,
Memorandum of Fact and Law, Tab 5, p 4). The hearing was therefore adjourned.
[5]
In
November 2006, the applicant retained counsel, Mr. Duggan (Respondent’s Record,
Vol 2, Tab 40). On December 1, 2006, counsel for CSIS, Mr. Roussy, advised the
PSLRB that CSIS was not willing to provide the applicant with a Top Secret
clearance, but would provide his counsel with the necessary forms to apply for
a Top Secret clearance (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix
7). The applicant’s counsel was granted a Top Secret security clearance in the
spring of 2007 (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix
20).
[6]
On
June 14, 2007, the PSLRB ordered CSIS to disclose all documents the applicant
thought were relevant to his case, in accordance with security considerations
(Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 11).
[7]
On
August 31, 2007, Mr. Kirk, counsel for CSIS, indicated that a final
determination had been made by CSIS and that the applicant would not be granted
Top Secret security clearance (Applicant’s Record, Affidavit of Danny Palmer, Tab
3, Appendix 4). The same letter indicated that pursuant to the PSLRB’s order
from June 14, 2007, documents were now available for the applicant and his
counsel to view at CSIS’s office in Montreal. Documents classified up to Secret
could be viewed by both, while only the applicant’s counsel would be allowed to
view documents classified Top Secret.
[8]
The
hearing on the merits of the grievance was set to begin on October 24, 2007.
The parties entered in mediation on October 24, 2007. At the beginning of
mediation, Mr. Kirk, counsel for CSIS, allegedly advised that since the
applicant’s Top Secret security clearance had been denied, the adjudicator could
not re-instate him within CSIS. A settlement agreement was reached on October
25, 2007 (Respondent’s Record, Vol 2, Tab 38). The agreement provided that the
applicant would withdraw his grievance, which he did on December 13, 2007
(Respondent’s Record, Vol 2, Tab 58). The applicant was represented by his
counsel, Mr. Duggan, throughout the mediation and settlement.
[9]
The
applicant claims to have signed the settlement based on his belief that he
could not be reinstated because of the denial of his Top Secret security clearance.
The applicant claims that after signing the settlement agreement, his counsel,
Mr. Duggan, showed him a list of documents that he had received before the
hearing set for October 24, 2007. The applicant was of the view that some documents
were incorrectly classified as Top Secret (Applicant’s Record, Memorandum of
Fact and Law, Tab 5, p 8).
[10]
The
applicant retained his current counsel, Mr. Mercure and Ms. Stanners, for the
purpose of obtaining information on the process CSIS followed to deny him Top
Secret clearance and to find out why documents he had authored had been
classified Top Secret. The applicant’s counsel sent letters to CSIS on October
2, 2008 (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 12),
December 17, 2008 (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix
13) and March 19, 2009 (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix
14), asking what policy or procedure led to the denial of the applicant’s Top
Secret security clearance.
[11]
CSIS
responded to the applicant’s counsel’s letters on November 5, 2008 (Applicant’s
Record, Affidavit of Danny Palmer, Tab 3, Appendix 15), February 16, 2009
(Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 16) and April
17, 2009 (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 17),
indicating that:
a. CSIS would not be
giving any further consideration to the applicant’s application for employment
within CSIS;
b. the applicant’s Secret
security clearance, which was granted for the sole purpose of adjudication, was
deactivated in 2007, following the settlement of the PSLRB adjudication;
c. it is CSIS policy to
deactivate an employee’s clearance when he or she leaves CSIS;
d. the granting of the
applicant’s Secret clearance and his counsel’s Top Secret clearance was done in
accordance with internal CSIS policy HUM-504-1 and Government Security Policy,
as set out by the Treasury Board Secretariat;
e. there were no
impediments to considering the applicant for a Top Secret clearance in the
future if another government department or agency requested it;
f. an investigation was
conducted prior to the decision to deny the applicant a Top Secret clearance
for the purpose of the hearing; and
g. less than 5% of the
documents disclosed for the 2007 hearing were classified Top Secret, and
therefore only available to Mr. Duggan.
[12]
On
June 5, 2009, the applicant filed a request with the PSLRB asking it to reopen
his case on the basis that the 2007 settlement was entered into as a result of
fraud and coercion (Respondent’s Record, Vol 2, Tab 37). According to the
applicant, CSIS had no reason to deny him a Top Secret security clearance, and
thus no reason to prevent full disclosure of the evidence in the hearing of his
grievance. In a letter dated June 30, 2009, CSIS objected to the PSLRB’s
jurisdiction to revive the applicant’s grievance, which had been withdrawn in
December 2007 pursuant to the settlement agreement (Respondent’s Record, Vol 1,
Tab 33).
[13]
A
preliminary decision of the PSLRB examined the question of its jurisdiction. In
a decision dated January 25, 2010, an adjudicator held that the PSLRB had the
jurisdiction to determine whether the settlement reached by the parties in
October 2007 was valid and binding. Therefore, the matter was referred to
another adjudicator for a hearing and decision (Respondent’s Record, Vol 2, Tab
37).
[14]
The
applicant claims he and his counsel became aware of the existence of Exhibits
2, 56 and 57 in March 2011. Exhibits 2, 56 and 57 are Briefing Notes recommending
the denial of the applicant’s Top Secret security clearance. They are dated May
4, 2007, October 22, 2010 and July 5, 2011, respectively. The applicant’s
current counsel, who has Top Secret clearance, was given access to view these
exhibits on March 15, 2011.
[15]
The
hearing before the adjudicator on the issue of whether the settlement reached
by the parties in October 2007 was valid and binding took place from March 21
to 23, 2011 and September 19 to 21, 2011 (Respondent’s Record, Vol 1, Affidavit
of Tiffanie Jennings, p 2). According to the applicant, the adjudicator stated
at the beginning of the hearing that she did not see the need to hold a hearing
since the applicant had agreed to settle the matter while represented by
counsel.
[16]
The
applicant was shown Exhibits 2, 56 and 57 during the hearing. He claims that
their content is not of a Top Secret nature and that the exhibits were only
classified as such in order to make them unavailable to him (Applicant’s
Record, Affidavit of Danny Palmer, Tab 3, p 3). According to the applicant, he
learned by seeing exhibits 2, 56 and 57 that CSIS would have denied his Top
Secret clearance based on unfounded allegations without notifying him, and that
CSIS’s affirmation that there would be no impediment to considering a Top
Secret application in the future was misleading (Affidavit of Danny Palmer, Tab
3, para 109, pp 12-13). According to the applicant, allegations of his
carelessness and irresponsibility with regard to the handling of classified
information formed the basis of the briefs recommending that his Top Secret
clearance be denied (Applicant’s Record, Memorandum of Fact and Law, Tab 5, p
5). The applicant claims that neither he nor his counsel knew about these
allegations when signing the settlement agreement. The applicant also claims
that he had addressed the allegations raised in these exhibits as far back as
October 23, 2005 (Applicant’s Record, Memorandum of Fact and Law, Tab 5, p 12).
[17]
During
the hearing, the adjudicator heard seven (7) witnesses, including the
applicant, and considered sixty-six (66) exhibits (Respondent’s Record, Vol 1,
Affidavit of Tiffanie Jennings, pp 3-6). Before the adjudicator, the applicant
submitted that he was misled by being told that his Top Secret security
clearance would not be reinstated if his grievance was successfully
adjudicated, which allegedly left him with no choice but to settle since he was
unable to access all the information needed for his case. The applicant claimed
that he obtained information in 2008 and 2009 leading him to conclude that the
2007 settlement was entered into because of fraud and coercion on the part of
CSIS – particularly, that the denial of his Top Secret security clearance was a
ruse to prevent full disclosure of all documents relevant to his grievance.
According to the applicant, the denial of his Top Secret security clearance was
limited to the arbitration process and did not affect future employment with
CSIS.
[18]
The
respondent’s affiant summarized the testimonies of certain witnesses at the
hearing as follows: Mr. Ken Brothers, Chief of Physical Security in 2006,
testified that he reminded the applicant of his obligations in terms of
security upon his release from CSIS. He also indicated that he reviewed
documents submitted by the applicant after his release and determined that some
of these documents contained classified information (Respondent’s Record, Vol
1, Affidavit of Tiffanie Jennings, p 6).
[19]
Mr.
Gordon Kirk, Legal Counsel with the Department of Justice, testified that a
hearing on the merits of the applicant’s case was scheduled for the week of
October 29, 2007, and that an order of disclosure had been made by the PSLRB.
He indicated that no complaints had been made regarding disclosure after the
order was made. Mr. Kirk testified that documents were made available to the
applicant and his counsel for consultation at CSIS’s office in Montreal. He also provided an overview of what transpired during mediation (Respondent’s
Record, Vol 1, Affidavit of Tiffanie Jennings, pp 6-7).
[20]
Mr.
David Vigneault, Former Assistant Director, Secretariat, and Assistant
Director, Intelligence with CSIS, provided context for a letter he wrote to the
applicant’s counsel on November 5, 2008 (Respondent’s Record, Vol 1, Tab 27),
in response to a letter from the applicant’s counsel dated October 2, 2008
(Respondent’s Record, Vol 1, Tab 26). He indicated that should a government
department request a Top Secret clearance for the applicant, the decision to
grant that clearance would be at the discretion of the Deputy Head of the
requesting department (Respondent’s Record, Vol 1, Affidavit of Tiffanie
Jennings, pp 7-8).
[21]
Finally,
Ms. Rachel Grandmaison, Head, Contractor Security, provided information on
internal policies applying to personnel security and contractors. She explained
that after the applicant was dismissed, his Top Secret clearance was
deactivated. It was reactivated and downgraded to Secret in 2006 for the sole
purpose of adjudication. Ms. Grandmaison explained that the applicant was not
interviewed because his information was already on file from his last security
update. Since Secret clearances are valid for ten (10) years, the applicant’s
was still valid. Ms. Grandmaison indicated that the applicant’s Top
Secret clearance was refused because he had breached security policy. According
to the applicant, Ms. Grandmaison testified that no similar case to his had
arisen before (Respondent’s Record, Vol 1, Affidavit of Tiffanie Jennings, pp
8-9).
[22]
The
adjudicator rendered her decision on January 5, 2012.
[23]
All
sixty-six (66) exhibits which were submitted to the adjudicator were attached
as Exhibit B to Tiffanie Jennings’s affidavit before this Court. Four (4) were
included in a confidential volume provided under separate cover (Exhibits 2, 56
and 57: the three (3) Briefing Notes with attachments, and Exhibit 3: the
applicant’s supplemental grievance).
Decision under
review
[24]
The
adjudicator held that all the facts raised by the applicant, in support of his
request for reviewing the conditions which led to the settlement agreement,
were known to him and his counsel at the time of the mediation and when they
agreed to settle.
[25]
The
adjudicator concluded that she was not persuaded by the correspondence between
the applicant’s counsel and CSIS, between July 31, 2008 and May 19, 2009. She
held that the correspondence was irrelevant to the issue of whether the
settlement is valid and binding.
[26]
The
adjudicator took note of the fact that the applicant’s former counsel, Mr.
Duggan, had raised the issue of CSIS denying the applicant a Top Secret security
clearance during the initial hearing, as well as CSIS’s refusal to disclose
certain documents. The adjudicator observed that a settlement was reached
despite these issues being outstanding.
[27]
The
adjudicator held that, based on the evidence before her, she was not convinced
that the applicant had been misled, or that his consent to settle was obtained
through misrepresentations, fraud, or coercion on the part of CSIS. She
concluded that the settlement was a mutual intention of both competent parties
who wished to resolve the issue with finality, and was therefore binding. The
settlement being binding, so was the withdrawal of the grievance, which led her
to conclude that she did not have jurisdiction to deal with the applicant’s
grievance (citing Canada (Attorney General) v Lebreux, (FCA), [1994] FCJ
no 1711 (QL) at para 12, 178 NR 1).
Issues
[28]
The
Court is of the view that this case raises the following issues:
a. Did
the adjudicator breach principles of procedural fairness?
b. Was
the adjudicator’s decision that the settlement agreement is valid and binding
reasonable?
Legislative
provisions
[29]
The
applicable legislative provisions are set out in annex to this judgment. The
PSLRB and its adjudicators are under the scope of the Public Service Labour
Relations Act, SC 2003, c 22, s 2 [PSLRA]. As a general remark, it
is relevant to note that CSIS is considered a Separate Agency pursuant to
Schedule V of the Financial Administration Act, RSC 1985, c F-11.
Pursuant to section 8 of the Canadian Security Intelligence Service Act,
RSC 1985, c C-23, CSIS’s Director has exclusive authority to appoint employees,
provide the terms and conditions of their employment, and exercise the powers
and functions of the Treasury Board relating to human resources management
under the Financial Administration Act, as well as those assigned to the
Public Service Commission by the Public Service Employment Act, SC 2003,
c 22, ss 12, 13. The PSLRA does not generally govern labour relations within
CSIS, except for its Part 2 which relates to grievances, (subsection 2(1) of
the PSLRA, definition of “employee”).
Standard of
review
[30]
Issues
of procedural fairness require no deference on the part of the Court. The
question the Court must ask itself is whether the adjudicator’s approach met
the level of fairness required (Canada (Attorney General) v Timson, 2012
FC 719, [2012] FCJ No 895 (QL) [Timson]; Canadian Union
of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at
para 100, [2003] 1 S.C.R. 539; Canada (Attorney General) v Grover, 2004 FC
704 at para 34, [2004] FCJ No 865 (QL); Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43, [2009] 1 S.C.R. 339).
[31]
The
parties agree that the standard of review as it pertains to the adjudicator’s
decision on the validity of the settlement, is reviewable on a standard of
reasonableness. While the present case is a matter of deciding whether or not
the adjudicator has jurisdiction to reopen the applicant’s grievance, the true
question is one of facts – specifically, a factual determination of whether the
settlement agreement was entered into under fraud or misleading information
from CSIS (Lindsay v Canada (Attorney General), 2010 FC 389 at para 38,
369 FTR 64). Being mainly a question of fact, and mixed fact and law, the Court
is to show deference to the adjudicator’s conclusion (Robillard v Canada
(Attorney General), 2008 FC 510 at para 23, 330 FTR 31; Canada (Attorney
General) v Pepper, 2010 FC 226 at para 20, 364 FTR 238; Canada (Attorney
General) v Robitaille, 2011 FC 1218 at para 23, [2011] FCJ No 1494 (QL)).
This is particularly so given the strong privative clause contained in section
233 of the PSLRA. The Court will therefore examine the “justification,
transparency and intelligibility within the decision-making process” as well as
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Arguments
Applicant’s
arguments
[32]
The
applicant claims that the adjudicator erred by failing to provide adequate
reasons for her decision. According to the applicant, the adjudicator merely
reiterated his submissions and stated a conclusion. The applicant submits that
the adjudicator failed to address the evidence regarding allegations of bad
faith and the evidence regarding concealment from the applicant and his counsel
of the methods used to deny him a Top Secret security clearance. The applicant
claims that nothing in the denial brief (Exhibit 2) warranted a Top Secret
classification, and that the adjudicator erred by not considering this. The
applicant claims that because his case raises an issue of bad faith, the
adjudicator had to scrutinize CSIS’s discretion in classifying these documents.
[33]
The
applicant also argues that the adjudicator had a duty to assess the credibility
of witnesses and the reliability of the evidence. The applicant claims that
issues of contradictions, retractions, inconsistencies and bias were raised in
CSIS’s evidence, and in such a case, adequate reasons should have commented on
the credibility of witnesses and reliability of the evidence.
[34]
The
applicant also takes issue with the fact that the adjudicator would have
indicated on two (2) separate occasions that she did not see the reason for
holding the hearing. The applicant claims that this led to a reasonable
apprehension of bias.
[35]
The
applicant also alleges that the adjudicator stated conclusions that were unsupported
and contradicted by the evidence. Namely, the applicant claims that while it
was true for the adjudicator to state that the applicant knew he was being
denied his Top Secret security clearance when he signed the settlement
agreement, he was not aware of the process used by CSIS to deny him clearance.
Furthermore, the applicant argues that Exhibit 2 had not been disclosed to
either himself or his counsel at the time of the settlement, but only became
known to himself and his counsel three (3) years after the settlement. The
applicant claims that he could not have known that evidence had been
reclassified and “placed” out of his reach, that CSIS had relied on allegations
of wrongdoing on his part to deny him the Top Secret security clearance, and
that the denial of his Top Secret security clearance was solely for
administrative purposes. He further argues that his supplemental grievance
(Exhibit 3) was reclassified without notice to him and was used to deny him Top
Secret security clearance. Finally, the applicant argues that it is illogical
for CSIS to grant him Secret clearance while elsewhere describing him as
“careless and irresponsible with classified information”. According to the
applicant, the adjudicator addressed none of this evidence.
[36]
The
applicant also argues that the adjudicator rendered a cursory decision after
the end of her mandate. He cites paragraph 22(4) of the Public Service
Labour Relations Act which indicates that a person who ceases to be a
member of the Board has eight (8) weeks to complete his or her
responsibilities. The applicant argues that the timing of the adjudicator’s
decision combined with its cursory findings corroborate the argument that she
disregarded evidence on key issues. According to the applicant, this raises a reasonable
apprehension of bias.
[37]
Finally,
the applicant takes issue with the adjudicator’s refusal to consider the
unedited version of the settlement agreement. The applicant argues that, by
refusing to do so, the adjudicator would have believed he received an important
settlement, and would have pre-judged the matter.
Respondent’s
arguments
[38]
The
respondent first recalls that the adequacy of reasons is not a stand-alone
basis for quashing a decision (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14,
[2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses]). The respondent
also indicates that the adjudicator did not have to address all the details
pertaining to the evidence, and points out that “[a] decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion” (Newfoundland and Labrador
Nurses, above, at para 16). The respondent argues that, in this case, the
adjudicator’s decision clearly outlines her reasoning. According to the
respondent, although the adjudicator did not explicitly mention all sixty-six
(66) exhibits, her reasons clearly show that she considered the evidence before
her as a whole. The respondent argues that reasons should not be found
inadequate simply because they could have been more comprehensive (citing Schaper
v Beauchamp, 2011 BCSC 833 at para 79, [2011] BCJ No 1188 (QL)).
[39]
With
respect to the credibility of the witnesses, the respondent argues that there
is no absolute rule requiring adjudicators to give reasons in all
circumstances, and therefore, no obligation for the adjudicator to verbalize
her assessment of the credibility of the witnesses.
[40]
The
respondent submits that there is no evidence that the adjudicator stated that
she did not see a reason for holding the hearing. The respondent argues that
such allegations in the applicant’s affidavit do not constitute evidence and do
not inform on the context in which such a statement would have been made. The
respondent also submits that any apprehension of bias should have been raised
during the hearing and before the adjudicator. Because this issue was not
raised at the hearing, neither the respondent nor the adjudicator had the
opportunity to address it.
[41]
The
respondent also submits that, contrary to the applicant’s contentions, the
adjudicator’s conclusions are supported by the evidence on record. According to
the respondent, the evidence presented during the hearing clearly showed that
both the applicant and his counsel were aware of all the conditions when they
signed the settlement agreement, and that the adjudicator’s decision is
therefore reasonable.
[42]
Finally,
the respondent argues that the applicant omits the context in which the
adjudicator decided not to take into account the unedited version of the
settlement agreement. The respondent claims that during the cross-examination
of the applicant at the hearing, counsel for the respondent asked questions
about the alleged invalidity of the settlement. The applicant’s counsel
allegedly objected to questions pertaining to what transpired during the
mediation session which led to the settlement agreement. The adjudicator ruled
in favour of the applicant, concluding that questions should not concern the content
of the mediation; therefore, the respondent filed a redacted version of the
settlement agreement (Respondent’s Record, Vol 2, Tab 38). The respondent
claims that the applicant wanted to introduce an un-redacted version of the
settlement agreement on the last day of the hearing, after the last witness had
testified. According to the respondent, the adjudicator decided that since the
evidence was closed, and given her ruling on the applicant’s previous
objection, she would not allow the introduction of the un-redacted settlement
agreement. The respondent claims that the adjudicator was correct in refusing
to allow the introduction of the full text of the settlement since its content
was never disputed and it was irrelevant to the determination of whether or not
it was valid and binding.
Analysis
[43]
The
question before the adjudicator was limited to whether or not the applicant and
his employer had entered into a valid and binding settlement. The adjudicator
essentially found that, since all elements were known to the applicant when he
signed the settlement agreement, it was valid and binding.
Procedural
fairness
[44]
The
applicant raised several issues pertaining to procedural fairness. One of the
applicant’s arguments concerned the adequacy of the adjudicator’s reasons for
her decision. The respondent correctly noted that sufficiency of reasons is not
a stand-alone reason for quashing a decision. The Court recalls the Supreme
Court of Canada’s comments in Newfoundland and Labrador Nurses, above,
where it is stated that the assessment of the reasons should be part of the
organic exercise of determining whether the decision is reasonable. This is not
a case where no reasons were provided when they were required, thus breaching
procedural fairness – reasons were provided by the adjudicator, and should
therefore be assessed when examining whether the decision is reasonable (Newfoundland
and Labrador Nurses, above at para 22).
[45]
The
applicant also raised the issue of the adjudicator apparently stating on two (2)
separate occasions that she did not see the need to hold the hearing. The Court
notes that since there is no transcript of the hearing, nor the pre-hearing
conference, there is no evidence in the record showing that the adjudicator
made such remarks, nor the context in which such remarks would have been made.
The test for reasonable apprehension of bias was set out by the Supreme Court
of Canada in Committee for Justice and Liberty v Canada (National Energy
Board), [1978] 1 S.C.R. 369 at 394: “what would an informed person, viewing
the matter realistically and practically -- and having thought the matter
through -- conclude”. The applicant has led no independent evidence to support
this allegation of bias. As indicated by this Court in Armstrong v Canada (Attorney General), 2006 FC 505 at para 74, 291 FTR 49, “[t]he threshold for
establishing a claim of reasonable apprehension of bias is high and substantial
grounds are necessary to support such a claim”. This high threshold could be
displaced with cogent evidence, which has not been done here. The Court finds
that there is no merit to the serious allegation that the adjudicator was
biased or had pre-judged the matter.
[46]
Also,
it is worthy of note that the applicant did not raise the issue of bias
immediately at the hearing, or at the pre-hearing conference, when the
adjudicator allegedly made the impugned comments. It is trite law that a
reasonable apprehension of bias must be raised at the earliest practicable
opportunity (Gonzalez v Canada (Minister of Citizenship and Immigration),
2008 FC 983 at paras 16-18, [2008] FCJ No 1219 (QL), citing Canada (Human
Rights Commission) v Taylor, [1990] 3 S.C.R. 892, 75 DLR (4th) 577; Zündel
v Canada (Canadian Human Rights Commission) (re Canadian Jewish Congress)
(2000), 195 DLR (4th) 399, 264 NR 174 (FCA)). The applicant was represented by
counsel, and the significance of such comments would have been immediately
apparent to the applicant and his counsel.
[47]
The
applicant also claimed that a reasonable apprehension of bias arose because the
adjudicator’s decision was rendered shortly after the end of her term with the
PSLRB. The applicant has not adduced evidence indicating that the adjudicator
would have had an interest in rendering a hasty or inadequate decision. The
Court cannot agree with the applicant’s contention that the adjudicator’s
decision was “unmotivated” and “in complete disregard for the evidence on the
key issues”. To the contrary, the adjudicator’s decision is motivated and does
address the key issue of the applicant being misinformed by CSIS before signing
the settlement agreement (paragraphs 8 and 9 of her decision). Once again,
without evidence to support the applicant’s claim, an informed person viewing
this matter practically and realistically, having thought the matter through,
would not conclude to a reasonable apprehension of bias. The high threshold for
such a serious allegation is simply not met.
[48]
The
applicant also alleged that the adjudicator breached procedural fairness by
refusing to consider the entire text of the settlement agreement. The Court
agrees with the respondent that the content of the settlement itself was never
in question and was irrelevant to the issue before the adjudicator, which was
narrowly circumscribed to determining whether the applicant was misled into
agreeing to settle, or if CSIS acted fraudulently or in bad faith. None of the
applicant’s allegations targeted the content of the settlement agreement. The
applicant also objected to the content of the mediation and agreement being scrutinized
during the hearing before the adjudicator. Therefore, the adjudicator, being
the master of her own proceedings, did not err by refusing to admit an
un-redacted copy of the settlement agreement into evidence given the
applicant’s objections, the fact that the substance of the settlement was not
disputed and was of little relevance to the determination of whether or not the
applicant was misled into settling.
Reasonableness
of the adjudicator’s decision
[49]
The
adjudicator’s reasons allow this Court to “understand why the [adjudicator]
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes” (Newfoundland and Labrador Nurses,
above, at para 16). Indeed, it is clear from the adjudicator’s reasons that she
concluded that the settlement was binding because the applicant and his counsel
were aware of all the facts raised in support of reviewing the conditions which
led to the settlement. Although she does not list all such facts, she is not
required to (Newfoundland and Labrador Nurses, above, at para
16). The adjudicator noted that the applicant’s counsel had raised the issue of
the refusal of his Top Secret security clearance, as well as CSIS’s refusal to
disclose certain documents, yet still agreed to a settlement despite these
issues being outstanding (paragraph 9 of the adjudicator’s decision).
[50]
The
adjudicator’s reasons address the heart of the applicant’s arguments, which is
that he was not aware of certain relevant facts before agreeing to settle,
formulated as follows before this Court: that evidence had been reclassified,
that CSIS relied on allegations of wrongdoing on his part to deny him Top
Secret security clearance, and that the denial of his Top Secret security clearance
was for administrative purposes (Applicant’s Record, Memorandum of Fact and
Law, Tab 5, p 23). According to the adjudicator, it was clear that the
applicant was aware of all these facts when he chose to settle. An examination
of the record confirms that this conclusion was certainly one of the possible
outcomes justifiable by the facts of this case.
[51]
The
Court notes that, on October 11, 2007, the applicant raised concerns with
disclosure of documents from CSIS after the June 2007 order of disclosure from
the PSLRB (Respondent’s Record, Vol 1, Tab 22). The alleged issues with respect
to disclosure could have been heard at the hearing. However, and despite the
order of disclosure, the applicant and his counsel nonetheless agreed to a
settlement agreement.
[52]
While
the applicant claims not to have been aware of the allegations against him
contained in Exhibits 2, 56 and 57, the Court notes that these allegations were
referred to on numerous occasions, many of which were prior to the applicant
signing the settlement agreement. For instance, letters addressed to the PSLRB
contained references to the applicant’s carelessness in dealing with classified
information (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 18,
dated October 11, 2005, p 3; Applicant’s Record, Affidavit of Danny Palmer, Tab
3, Appendix 19, dated November 2, 2005).
[53]
Furthermore,
the Court notes that in a letter drafted by the applicant and sent to the PSLRB
in March 2006, the applicant clearly expresses his knowledge that CSIS believes
that he had shown a disregard to the Security of Information Act, RSC
1985, c O-5, and the Canadian Security Intelligence Service Act, RSC
1985, c C-23, by sending classified documents by fax (Respondent’s Record, Vol
2, Tab 39, pp 174 and 177). The same letter indicates that the applicant was
aware that this was the reason why his Top Secret security clearance would not
be reinstated. In another letter authored by the applicant, dated November 15,
2006, and addressed to the PSLRB, the applicant clearly set out that he was
aware of CSIS’s concerns with classified information he disclosed to the PSLRB
(Respondent’ Record, Vol 2, Tab 40, p 183). This correspondence emanating from
the applicant pre-dates the settlement agreement. It is therefore farfetched
for the applicant to now claim that he did not know why his Top Secret security
clearance was denied, and that this lack of knowledge would render the
settlement agreement invalid.
[54]
The
applicant claims he was misled by being told that reinstatement with CSIS would
be impossible. Given CSIS’s refusal of the applicant’s Top Secret security clearance,
the Court is not convinced that this statement, if it was indeed made at the
beginning of negotiations, would have been misleading at the time. What the
CSIS’s November 5, 2008 letter indicated is that there would be no impediments
to considering the applicant for a Top Secret security clearance in the
future, should another government agency require it for employment purposes.
Indeed, CSIS will perform a security clearance for its own employees, but CSIS
is also responsible for security clearance for all Departments in government,
leaving the final decision, in that case, to the Deputy Head of the Department.
However, the letter stressed that, in the absence of such request, the
investigation will not be triggered. (Applicant’s Record, Affidavit of Danny
Palmer, Tab 3, Appendix 15). The applicant himself recognized that a Top Secret
security clearance is a prerequisite for employment with CSIS (Respondent’s
Record, Vol 2, Tab 40, pp 182-183). It was therefore open to the adjudicator to
conclude that CSIS did not mislead the applicant.
[55]
At
hearing before this Court, the applicant also alleged that the letter, dated
October 30, 2009, contradicted what was said to the applicant at mediation. In
that letter, Mr. Kirk indicated that CSIS provided the applicant with a Secret
security clearance (Not Top Secret security clearance) strictly for the
purposes of adjudication before the PSLRB. The said letter indicated that if
the applicant’s complaint had proceeded to a hearing and decision, the
adjudicator could have reinstated the applicant. In this event, CSIS would have
conducted a security clearance investigation of the applicant. If a Top Secret
security clearance had been denied, then the applicant could have filed a
complaint with the Security Intelligence Review Committee. According to the
applicant, the contents of this letter contradicted what was said during the
mediation leading to the settlement. (Applicant’s Record, Affidavit of Danny
Palmer, Tab 3, Appendix 20).
[56]
However,
there is no evidence of the content of the evidence during mediation.
Furthermore, the letter merely states that it cannot be confirmed in advance
that a Top Secret security clearance will be granted. Perhaps this issue raised
by the applicant at hearing could have been raised at hearing before the
adjudicator, but the applicant, represented by counsel, decided to settle
instead.
[57]
The
Court recalls that the adjudicator’s reasons need not include all details and
arguments (Newfoundland and Labrador Nurses, above at para 16).
This does not impugn the reasonableness of the adjudicator’s decision,
particularly since credibility of witnesses or authenticity of documents was
not at issue, and because the record before the adjudicator supports her
findings.
[58]
There
is no evidence in the record before this Court supporting the conclusion that
CSIS would have misled the applicant or coerced him into signing the settlement
agreement. Having reasonably concluded that the settlement agreement was valid
and binding, including the withdrawal of the grievance, the adjudicator was
correct in subsequently concluding that she did not have jurisdiction to
examine the applicant’s grievance.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Richard Boivin”
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