Date:
20130612
Docket:
T-452-12
Citation:
2013 FC 644
Ottawa, Ontario,
June 12, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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SHIV CHOPRA
and
MARGARET HAYDON
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Applicants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review by Drs. Shiv Chopra and Margaret Haydon
(the Applicants) of a decision rendered on January 31, 2012, by the Public
Sector Integrity Commissioner [PSIC], Mario Dion. The PSIC decided not to
reopen a decision rendered by his predecessor, Commissioner Christiane Ouimet,
on October 9, 2009, dismissing the Applicants’ disclosure of wrongdoing against
their employer, Health Canada.
Motion to remove
Gérard Lambert as an applicant
[2]
On
April 9, 2013, a joint motion was filed by the applicant, Gérard Lambert, and
the Attorney General of Canada, to remove Gérard Lambert as an applicant. The
Court decided to deal with this motion as part of this decision. The motion is
granted and the style of cause is amended accordingly, as above.
[3]
For
the reasons that follow this application for judicial review is dismissed.
II. Background
and facts
[4]
The
Applicants were employed as drug evaluators in the Veterinary Drugs Directorate
[VDD] of Health Canada. As such, they were responsible for evaluating drug
submissions filed by manufacturers applying for Notices of Compliance [NOC] to
market veterinary drug products, pursuant to the Food and Drugs Act, RSC
1985, c F-27 [FDA] and Food and Drug Regulations, CRC, c 870 [Regulations].
[5]
In
2002, the Applicants and their late colleague, Dr. Cris Bassude, filed a
complaint with the Public Service Integrity Officer [PSIO] (the predecessor to
the PSIC).
[6]
The
PSIO summarized the Applicants’ allegations as follows:
a.
Notices
of Compliance for five “Components with Tylan” products were issued without
human safety data, contrary to the FDA and the Regulations;
b.
VDD
drug evaluators were being pressured by supervisors to pass or maintain a
series of veterinary drugs without required human safety data; and
c.
Drug
evaluators faced departmental disciplinary action if they did not follow
management’s instructions to favour the pharmaceutical lobby in the approval
process for veterinary drugs.
[7]
Following
its investigation, the PSIO issued its report on March 21, 2003, concluding
that all three allegations were unfounded.
[8]
The
Applicants sought judicial review of the PSIO decision. In Chopra v Canada (Attorney General), 2005 FC 595 at paras 72 and 73 [Chopra], Justice
O’Keefe allowed the application, set aside the report and referred it back to
the PSIO for reconsideration. Justice O’Keefe found that the PSIO had
undertaken to investigate the drug approval processes for at least 8 drugs but
only performed an analysis with respect to drug products known as Component
with Tylan:
[72] A review of the investigation report shows
that in regard to the first allegation, the PSIO only did an analysis with
respect to drug products known as Component with Tylan. The applicants had
alleged to the PSIO, however, that there were problems with the drug approval
processes for the following drugs: Revalor H, Synergistin Injectable
Suspension, Baytril, rBST (rBGH), Carbodex, and Eugenol.
[73] While the PSIO can decide whether a matter
fits within the parameters of his jurisdiction, once he decides that it does,
he must carry out an investigation of the issues. The correspondence satisfies
me that the investigation was to include an investigation of the processes in
more than Component with Tylan drugs. The issue of the other drugs was clearly
before the PSIO and needed to be dealt with. I have no way of knowing what
conclusions would have been reached by the PSIO had these other issues been
considered.
[9]
Justice
O’Keefe concluded that: “[b]ecause of my finding on this issue, I need not
address the other issues raised by the applicants” (Chopra, cited above,
at para 77).
[10]
Following
the decision in Chopra, the PSIO appointed a new investigator to resume
the investigation of the complaint. In May 2005, the new investigator advised
the Applicants that the new investigation would be limited to reconsidering the
issues Justice O’Keefe judged to be missing from the first decision.
[11]
In
November 2005, the investigator asked the Applicants to submit any new
supplementary or additional evidence that could support their allegations as
well as information related to the approval process for the drugs to be
investigated. He also invited them to answer several questions. The Applicants
declined to answer the questions as posed but referred the investigator to the
record pointing to the material on file that answered the questions.
[12]
The
PSIO was replaced by the PSIC in 2007, as a result of the enactment of the Public
Servants Disclosure Protection Act, SC 2005, c 46 [PSDPA].
[13]
The
PSDPA contains a transitional provision (section 54.3) which indicates
that “[d]isclosures under the Treasury Board Policy on the Internal Disclosure
of Information Concerning Wrongdoing in the Workplace that are being dealt with
on the coming into force of this section are to be continued as though they had
been made under this Act”.
[14]
Ms.
Christiane Ouimet was the first PSIC appointed under the PSDPA. The PSIC
continued the PSIO’s inquiry with the same investigator. In March 2008, the
investigator released his preliminary report. The Applicants were invited to
comment and responded in May 2008.
[15]
On
October 8, 2009, the PSIC issued her decision. Ms. Ouimet decided to cease the
investigation pursuant to paragraph 24(1)(e) of the PSDPA. The
PSIC concluded that paragraph 24(1)(e) is “broad enough to include the
ongoing policy debate regarding the exercise of ministerial discretion under
the FDA and Regulations. Of note, a provision similar to paragraph 24(1)(e)
was not available to the PSIO under the former Policy.” The commissioner went
on to state that: “[t]he existence of ministerial discretion in the Regulations
reflects the intent of Parliament to allow the Minister the degree of
flexibility to make informed decisions on specific matters. I do not believe
that Parliament intended my Office to investigate and make recommendations on
the appropriateness and sufficiency of the exercise of discretion given to a
minister in federal legislation.” (PSIC decision dated October 8, 2009,
Applicants’ Application Record, Vol. XVI, p. 5214)
[16]
The
PSIC also determined that the three allegations were intrinsically linked and
rooted in a scientific dispute between the parties over the sufficiency of
human safety data Health Canada receives from manufacturers for New Drug
Submissions [NDS]. She noted that 12 other scientists at the VDD, who did not
share the Applicants’ scientific opinion, wrote a letter to Mr. Steve Hindle,
President of the Professional Institute of the Public Service of Canada,
indicating that they never felt any undue pressure to approve or not approve
drugs for veterinary use.
[17]
Finally,
the PSIC also found that:
“[…] [T]he investigative process that began in 2005
was premised on the assumption that the PSIO, and now my Office, in continuing
the investigation, could determine the validity of the disclosers’ claims that
human safety data should have been obtained before approving the drugs. In my
opinion, the subject-matter of the disclosure placed the PSIO, and now my Office,
in the difficult position of trying to evaluate and weigh scientific evidence
and ultimately arbitrate a scientific dispute between the parties.
I cannot make a finding of fact on whether there has
been wrongdoing or make purposeful recommendations to the chief executive when
the subject-matter of the disclosure relates to a public policy debate that
falls within the ambit of paragraph 24(1)(e)” (PSIC decision dated October 8,
2009, Applicants’ Application Record, Vol. XVI, p. 5215).
[18]
The
Applicants did not apply for judicial review of the PSIC’s decision.
[19]
Commissioner
Ouimet stepped down in October 2010 and Mr. Mario Dion was appointed as the new
PSIC on December 20, 2010. He decided that an independent review of all
disclosure of wrongdoing and reprisal complaint files closed between April 15,
2007 and December 19, 2010 be completed in order to determine whether any
merited being reopened. The PSIC selected Deloitte & Touche LLP to conduct
the review. The purpose of the review was to determine “[…] whether the work
done during the original file analysis or investigation accurately and
completely addressed the issues contained in the original disclosure or
complaint. If the file review determines that the file lacked sufficient
analysis and/or evidence collection, or if the rationale for reaching a
decision is not clear, then the interim Commissioner will be so informed and he
has the authority to order additional action be taken” (Applicants’ Application
Record, Vol. XVI, p. 5222).
[20]
With
respect to the Applicants’ file, Ms. Holly Holtman, special adviser to
Commissioner Dion, made the following recommendation:
“The objective of the file review process is to
evaluate the decision of PSIC and determine if they are in accordance with PSDPA.
In this case, the then Commissioner ceased the investigation on the basis of s.
24(1)(e), concluding that the subject-matter of the disclosure or the
investigation relates to a matter that results from a balanced and informed
decision-making process on a public policy issue. The decision–making process
was set out in the Food and Drug Act Regulations which provided the Minister
of Health with the discretion to determine the amount of science required to
satisfy the Notice of Compliance approval process for veterinary drugs.
In my view this assessment was correct. The
determination of the level of science required is within the Minister’s
discretion under the Food and Drug Act, and the pursuant Food and Drug Act Regulations
.Accordingly, the then Commissioner acted reasonably in exercising her
discretion top cease the investigation on the basis of s. 24(1) (e)”.
She went on to state that:
“ Following extensive review of the file
documentation of the complexity of the veterinary drug approval process, I
agree that the determination of allegations #2 and #3 - that scientists faced
undue pressure, and potential punishment if they did not reach a conclusion
that supported the pharmaceutical industry and the expectations of their
manager, are “ intrinsically linked to the first allegation, as they are
premised on the Disclosers’ same scientific opinion that human safety data was
disregarded”. Accordingly I agree that the decision to cease the investigation
into these allegations on the basis of s. 24 (1) (e) of the PSDPA was
correct.” (Applicants’ Application Record, Vol. XIX, pages 5965 and 5966,
Recommendation to Commissioner re: D-015)
[21]
On
January 31, 2012, Commissioner Dion issued a letter informing the Applicants
that he would not be reopening their file. The PSIC concluded that:
“[…] the former Commissioner’s assessment was
correct. The determination of the level of science required is within the
Minister’s discretion under the Food and Drug Act and regulations
established under its regime. Accordingly, the then Commissioner acted
reasonably in exercising her discretion to cease the investigation on the basis
of s. 24(1)(e) of the [PSDPA]” (Applicants’ Application Record, Vol. I,
p. 33).
[22]
Commissioner
Dion acknowledged that “there were procedural shortcomings with respect to the
investigation at the point when it was ceased in the fall of 2008” but held
that they were not determinative and “played no role in the final outcome”
(Applicants’ Application Record, Vol. I, p. 33).
III. Relevant
legislation
[23]
The
applicable sections of the Public Servants Disclosure Protection Act, SC
2005, c 46 are
appended to this decision.
IV. Issues
and standard of review
A. Issues
[24]
The
parties have adopted different views on the issues raised in this matter.
[25]
The
Applicants have identified the following issues:
1. Did
the PSIC err in failing to consider the public interest?
2. Did
the PSIO/PSIC act contrary to the Federal Court’s decision on these matters?
3. Can
an exercise of discretion constitute a wrongdoing under the PSDPA?
4. Was the
wrongdoing in question subject to a balanced and informed decision-making
process on a public policy issue?
5.
Was the process that led to the
PSIO/PSIC decisions fair?
[26]
The
Respondent raised the following issues:
1. What
is the degree of discretion that can be exercised by the PSIC under subsection
24(1) of the PSDPA?
2. Should
the decision in this instance not to reopen the file be set aside?
[27]
The
subject of this judicial review is the PSIC’s decision, dated January 31, 2012,
not to reopen the investigation terminated by Commissioner Ouimet.
Consequently, the Court finds that the only issue in this case is the
following:
i.
Did
the PSIC err in not reopening the investigation of the Applicants’ allegations
closed by Commissioner Ouimet?
B. Standard
of review
[28]
The
Applicants submit that the applicable standard of review is correctness since
in making his determination, the Commissioner committed significant legal
errors and failures to apply certain aspects of the statute. These, in their
opinion, are clearly of central importance given the public interest aspect of
the case. Consequently, the correctness standard should apply. They referred
the Court to, among others, the following cases: Alberta (Information
and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at
paras 39-46 and Shire v Canada (Minister of Citizenship and Immigration), 2012
FC 97.
[29]
The
Respondent argues that the applicable standard is reasonableness since the
issue raised by this application is Commissioner Dion’s decision not to re-open
a file. The Respondent relies on the recent decision of this Court in Detorakis
v Canada (Attorney General), 2010 FC 39, where the standard of review
applicable to the Commissioners’ decision not to pursue an investigation
further pursuant to paragraph (1)(a) of section 24 of the PSDPA
was found to be reasonableness.
[30]
In
the absence of a legislative provision prescribing otherwise, a
non-adjudicative body’s decision to reopen a case is discretionary (see Kurukkal
v Canada (Minister of Citizenship and Immigration),, 2010 FCA 230 at para
4; Noor v Canada (Minister of Citizenship and Immigration), 2011 FC 308
at para 27; Trivedi v Canada (Minister of Citizenship and Immigration),
2010 FC 422 at para 17; Nouranidoust v Canada (Minister of Citizenship and
Immigration), 172 FTR 115 at para 24; and Zutter v British Columbia
(Council of Human Rights), 1995 CanLII 1234 (BC CA) at para 34).
Discretionary decisions attract the standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 51 and 53).
V. Parties’
submissions
A. Applicants’
submissions
(i) The PSIC
decision is inconsistent with the Federal Court’s decision
[31]
The
Applicants submit that the PSIC’s reopening decision is inconsistent with
Justice O’Keefe’s decision in Chopra, cited above. They claim that
neither the PSIO nor the PSIC conducted their investigation in accordance with
the Court’s directives in Chopra. Furthermore, the Applicants contend
that the Court’s concerns with the PSIO’s initial investigation went beyond its
failure to examine the approval process for certain drugs.
[32]
The
Applicants argue that the Court, in Chopra, cited above, specifically
noted that a review of the approval process for the non-investigated drugs
might have had an effect on the second allegation, relating to the pressure to
approve drugs. The Applicants submit that it would certainly have also had an
impact on the third allegation and that all these matters were interlinked.
Because these other allegations were never fully investigated, the reopening of
the decision cannot be justified.
(ii) The
exercise of discretion can be wrongdoing
[33]
The
PSIC justified closing the file on the basis that it need not review the
exercise of ministerial discretion. The Applicants raise a number of issues
with this reasoning. First, they note that despite the fact that Health Canada
relied on this argument in Chopra, cited above, the Court nonetheless
ordered a more detailed and extensive investigation of their allegations.
[34]
Second,
they argue that accepting such a proposition leads to the inevitable conclusion
that ministerial discretion could never amount to wrongdoing and will always be
immune from scrutiny.
[35]
Third,
the PSIC’s rationale also assumes that the wrongdoing in question is limited to
the point at which the Minister exercised his discretion to grant the NOC. The
Applicants submit that wrongdoing could be found in a number of steps leading
to the Minister’s decision to grant the NOC. For example, they point to the
initial decision in 1998 to waive the human safety data requirement.
[36]
Fourth,
the Applicants contend that it would be shocking that a decision that could
have a significant impact on the health and safety of Canadians be immune from
review under the PSDPA because it involved ministerial discretion at the
end of the regulatory process.
[37]
Fifth,
the status of the PSDPA, as public interest legislation, necessarily
leads to the conclusion that the exercise of ministerial discretion can be
considered wrongdoing under it. Indeed, paragraph 8(d) of the PSDPA specifically
mentions that the Act applies to “an act or omission that creates a substantial
and specific danger to the life, health or safety of persons, or to the
environment, other than a danger that is inherent in the performance of the
duties or functions of a public servant”. That language, according to the
Applicants, does not suggest a limitation that protects the exercise of
discretion from review.
[38]
The
Applicants argue that the fact that discretion was involved is irrelevant. In
order to ensure public health and safety, the PSIO was obliged to determine
whether the exercise of that discretion was conducted properly.
[39]
The
flaw in the PSIC’s approach, according to the Applicants, is demonstrated by
the facts in this case. The Applicants maintain that the use of Tylosin in
animals meant for human consumption is harmful because it will contribute to
antimicrobial resistance in humans and could also cause other harmful effects.
Parliament could never have intended for this situation to go unchecked simply
because the decision to approve the drugs resulted from a Minister’s
discretionary decision.
[40]
The
Applicants submit that there is no doubt that Component with Tylan was approved
without human safety data. Even if one was to argue that safety data was
considered, the PSIO/PSIC should have determined whether that data was
sufficient or not. Furthermore, while the PSIO is correct that the Preparation
of Veterinary New Drug Submissions Guidelines issued by Health Canada
(Guidelines) are not obligatory, it should nevertheless have investigated why
the recommended practice for approving drugs was waived in this situation. That
is to say, it should have verified whether the waiver of the normal
requirements was justifiable or whether it was influenced by improper reasons.
They claim that the PSIC’s decision is exceptionally disconcerting, given that
the PSIO initially undertook to determine not only the nature of the discretion
exercised but also whether it was appropriately used in this case.
[41]
The
Applicants contend that the only justification for the decision to avoid
requesting human safety data is the following two-sentence email:
Hi Joy: The amount of tylosin tartrate (29mg) used
as a local antimicrobial for the implant will not pose any additional health
risk to the consumers. Review of the submissions by the Human Safety Division
is not needed. Man Sen (Applicants’ Application Record, Vol. V, p. 1368).
[42]
The
Applicants argue that this could hardly constitute a justifiable basis for
ignoring an established practice and not requesting human safety data.
[43]
Beyond
this concern, the Applicants submit the PSIO/PSIC failed to address numerous
other issues they raised, including: 1) the pressure to pass or maintain drugs
of dubious safety; 2) the numerous examples of retaliation they experienced;
and 3) their systemic concerns about the culture which discouraged debate and
encouraged approval within the Department.
[44]
They
argue that the PSIC’s view that the second and third allegations should not be
investigated because they are “intrinsically linked” to the first has no
logical foundation. For one, the allegation with respect to the pressure to
approve drugs is independent from the Tylosin approval issue. The Applicants
submitted that there was a culture which favoured approval of drugs over
rigorous scientific review of new drug submissions. Second, the PSIC could not
conclude that the first allegation was intrinsically linked to the second and
third when it did not review all of the drugs that were in question. Since the
PSIO/PSIC did not investigate the drugs they were directed to investigate by
this Court in Chopra, cited above, it could not conclude that there
would not have been evidence of reprisal in their approval processes.
[45]
The
failure to investigate these allegations represents a complete failure to
respect the intent and spirit of the PSDPA.
(iii) The
PSIC erred in relying on paragraph 24(1)(e) of the PSDPA
[46]
Commissioner
Ouimet refused to deal with the Applicants’ disclosure pursuant to paragraph
24(1)(e) of the PSDPA because she found that its subject “relates
to a matter that results from a balanced and informed decision-making process
on a public policy issue”. The Applicants argue that in order to justify a
decision based on this provision, Commissioner Ouimet was required to make a
finding of fact that all of its conditions were met, which she failed to do.
The PSIC did not point to any “formal decision-making process” which dealt with
the issues raised by the Applicants. Rather, Commissioner Ouimet seems to have
simply assumed that such a process had taken place based on the fact that the
issues had been the object of some debate and had also been discussed publicly.
[47]
The
Applicants submit that even if the Court finds that Commissioner Ouimet
properly relied on paragraph 24(1)(e) in deciding to stop the
investigation into the allegations regarding specific drugs, there is nothing
in her decision which indicates that the other two allegations related to a
matter resulting from a balanced and informed decision-making process on a
public policy issue are interlinked.
(iv) The
PSIC failed to consider the public interest or the quasi-constitutional status
of the PSDPA
[48]
Commissioner
Ouimet failed to acknowledge the quasi-constitutional status of the legislation
she was applying or that its ruling was effectively limiting the Applicants’
rights in that regard.
B. Respondent’s
submissions
[49]
The
Respondent directed the Court to the scheme of the PSDPA and its
preamble clearly indicating that the Act strives to strike the appropriate
balance between two important principles. In doing so, the Commissioner is
granted discretionary powers to cease an investigation or refuse to deal with a
disclosure in the circumstances outlined in section 24 of the PSDPA.
[50]
The
PSIC’s decision to cease an investigation into a disclosure for one of the
motives listed in subsection 24(1) of PSDPA is highly discretionary. The
Commissioner “may refuse to deal with a disclosure or to commence an
investigation - and he or she may cease an investigation - if he or she is of
the opinion that” one of the motives listed applies. According to the
Respondent, subsection 24(1) of the PSDPA contains a gatekeeper’s
function and it entrusts the Commissioner with the necessary discretion to
determine whether it is appropriate or not to pursue the investigation of a
complaint.
[51]
The
Respondent also argues that the exercise of the Commissioner’s discretion was
not limited by the decision in Chopra, cited above. The Court, in Chopra,
referred it for reconsideration, not for a particular result. The Respondent
submits that the PSIO followed the directives of the Court and resumed the
investigation into the drugs it had neglected to examine before.
[52]
What
is more, according to the Respondent, the Court’s order pre-dated the enactment
of the PSDPA. Section 54.3 of the Act, the transitional provision,
directs that disclosures made prior to the coming into force of the Act “are to
be continued as though they had been made under this Act”. Consequently, both
Commissioners Ouimet and Dion could legitimately rely on paragraph 24(1)(e)
in their respective decisions.
[53]
The
Respondent also argues that Commissioner Ouimet’s decision was reasonable. As
she explained in her decision, the disclosure involved differences of
scientific opinion between the Applicants and their employer on the
interpretation of the FDA and the Regulations. These were
differences she was not equipped to resolve, particularly when the applicable
legislation entrusts the Minister of Health with broad discretion to set the
regulatory standards.
[54]
The
Respondent also underlines that Commissioner Ouimet justifiably relied on the
Preliminary Report produced by the new investigator assigned to re-examine the
disclosure in accordance with the directives of the Court in Chopra,
cited above. Regarding the first allegation, the Report found that the drugs in
question had either been approved with the requisite data or not approved at
all. The investigator concluded that none of the drugs in question were
approved in a process that contravened the FDA or its Regulations.
[55]
On
the second allegation, the investigator concluded that the evidence reviewed
did not allow him to conclude that drugs were approved as a result of pressure
put on the Applicants.
[56]
As
for the third allegation, the investigator reviewed examples of disciplinary
actions and related documentation and concluded that, in view of the general
nature of the Applicants’ assertions and the lack of more specific supporting
information, the allegation is unfounded and no further investigation is
necessary.
[57]
Pointing
out that neither Commissioner Ouimet nor Dion found that the investigation was
perfect. Respondent submits that the question Commissioner Ouimet reasonably
asked herself, however, was whether further investigation would serve a
purpose. She concluded that it would not because the subject matter of the
three allegations was rooted in differences of scientific opinion on the
adequacy and sufficiency of the FDA and its Regulations.
According to the Respondent, that conclusion was open to the Commissioner.
[58]
The
Respondent also underlines that the Applicants have not disputed Commissioner
Dion’s finding that the procedural shortcomings had no impact on the final
outcome.
[59]
Contrary
to the Applicants’ assertions in their memorandum, the Respondent argues that
Commissioner Ouimet was not required to make an explicit finding of fact that
all the requirements of paragraph 24(1)(e) had been met. Nor was
Commissioner Dion in his decision not to reopen the file, the decision at issue
here. Citing the Supreme Court of Canada in Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
the Respondent maintains that adequacy of reasons is not a stand alone basis
for quashing a decision.
[60]
The
Respondent submits that Commissioner Dion decided not to reopen the Applicants’
file because he was of the view that Commissioner Ouimet had been correct in
her assessment under paragraph 24(1)(e) of the PSDPA. This
conclusion was reasonably open to him.
VI. Analysis
[61]
The
decision under review in the case at bar is that issued by Commissioner Dion on
January 31, 2012. He decided not to reopen the investigation into the
Applicants’ file further to a general review he undertook of his own volition
of all the files closed by the former Commissioner between April 15, 2007 and
December 19, 2010. This is not a judicial review of Commissioner Ouimet’s 2009
decision to cease the investigation pursuant to paragraph 24(1)(e) of
the PSDPA. The Applicants have failed to challenge that decision within
the delay found at subsection 18.1(2) of the Federal Courts Act, RSC
1985, c F-7.
[62]
A
decision to review a file to determine whether Commissioner Ouimet’s 2009
decision was within the ambit of the PSDPA is more limited in scope. The
ability of an administrative body to reopen a decision, in the absence of a
statutory power, is generally limited by the principle of functus officio.
[63]
The
Supreme Court of Canada discussed the foundations of the principle of functus
officio and its application to administrative tribunals in Chandler v
Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 [Chandler]:
19 The general rule that a final decision of a
court cannot be reopened derives from the decision of the English Court of
Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it
was that the power to rehear was transferred by the Judicature Acts to the
appellate division. The rule applied only after the formal judgment had been
drawn up, issued and entered, and was subject to two exceptions:
1. where there
had been a slip in drawing it up, and,
2. where there
was an error in expressing the manifest intention of the court. See Paper
Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
[…]
21 To this extent, the principle of functus
officio applies. It is based, however, on the policy ground which favours
finality of proceedings rather than the rule which was developed with respect
to formal judgments of a court whose decision was subject to a full appeal. For
this reason I am of the opinion that its application must be more flexible and
less formalistic in respect to the decisions of administrative tribunals which
are subject to appeal only on a point of law. Justice may require the reopening
of administrative proceedings in order to provide relief which would otherwise
be available on appeal.
22 Accordingly, the principle should not be
strictly applied where there are indications in the enabling statute that a
decision can be reopened in order to enable the tribunal to discharge the
function committed to it by enabling legislation. This was the situation in Grillas,
supra.
23 Furthermore, if the tribunal has failed to
dispose of an issue which is fairly raised by the proceedings and of which the
tribunal is empowered by its enabling statute to dispose, it ought to be
allowed to complete its statutory task. If, however, the administrative entity
is empowered to dispose of a matter by one or more specified remedies or by
alternative remedies, the fact that one is selected does not entitle it to
reopen proceedings to make another or further selection. Nor will reserving the
right to do so preserve the continuing jurisdiction of the tribunal unless a
power to make provisional or interim orders has been conferred on it by
statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41
N.R. 214 (F.C.A.).
24 In this appeal we are concerned with the failure
of the Board to dispose of the matter before it in a manner permitted by the Architects
Act. The Board intended to make a final disposition but that disposition
is a nullity. It amounts to no disposition at all in law. Traditionally, a
tribunal, which makes a determination which is a nullity, has been permitted to
reconsider the matter afresh and render a valid decision. […]
25 If the error which renders the decision a
nullity is one that taints the whole proceeding, then the tribunal must start
afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange
v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978),
9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968]
S.C.R. 330, referred to above, are in this category. They involve a denial of natural
justice which vitiated the whole proceeding. The tribunal was bound to start
afresh in order to cure the defect. (See Chandler, cited above, at
paras 19 and 21 to 25)
[64]
Based
on Chandler, cited above, administrative tribunals have the jurisdiction
to reopen a decision for which there is no right to appeal in the following
cases: 1) they may always reopen a proceeding if there was a denial of natural
justice which vitiates or nullifies it (see Chandler, at para 25; and Nazifpour
v Canada (Minister of Citizenship and Immigration), 2007 FCA 35 at para
36); 2) “there are indications in the enabling statute that a decision can be
reopened in order to enable the tribunal to discharge the function committed to
it by enabling legislation” (the new evidence ground) (Chandler at para
22); 3) jurisdictional error (Chandler at para 24); and 4) failure to
dispose of an issue which is fairly raised by the proceedings and of which the
tribunal is empowered by its enabling statute to dispose (Chandler at
para 23).
[65]
Absent
a legislative intent to the contrary, it is clear that an administrative
tribunal may reopen a proceeding for a denial of natural justice, a
jurisdictional error or a failure to address an issue fairly raised by the
proceedings.
[66]
In
the case at bar, the PSIC decided to have all disclosure of wrongdoing and
reprisal complaint files closed between April 15, 2007 and December 19, 2010
re-examined in order to decide whether any of them should be reopened. No right
of appeal exists against the PSIC’s decision to close an investigation. Neither
the PSDPA nor the Public Servants Disclosure Protection Tribunal
Rules of Procedure, SOR/2011-170, empowers the PSIC to reopen closed
complaint files. As was noted in Kurukkal v Canada (Minister of Citizenship
and Immigration), 2009 FC 695 at para 60, aff’d 2010 FCA 230), legislative
silence on the jurisdiction to reopen a non-adjudicative decision does not
necessarily reflect Parliament’s intention to prevent it. Furthermore, the
Court finds that something more than silence (i.e an express statutory
intention) is required to exclude the well-recognized common law exceptions to
the principle of functus officio described in Chandler, cited
above. The PSIC possesses the jurisdiction to reopen an investigation on the grounds
described in Chandler.
[67]
As
noted above, the PSIC stated the purpose of the review process was to
determine:
“ […] whether the work done during the original file
analysis or investigation accurately and completely addressed the issues
contained in the original disclosure or complaint. If the file review
determines that the file lacked sufficient analysis and/or evidence collection,
or if the rationale for reaching a decision is not clear, then the interim
Commissioner will be so informed and he has the authority to order additional
action be taken” (Applicants’ Application Record, Vol. XVI, p. 5222).
[68]
Several
of the issues identified in this passage are recognized by the case law as
acceptable grounds for reopening a decision. For example, ensuring that the
investigation completely addressed the issues in the original complaint falls
within the “failure to dispose of an issue which is fairly raised by the
proceedings and of which the tribunal is empowered by its enabling statute to
dispose” exception from Chandler, cited above.
[69]
In
his January 31, 2012 decision (the “reopening decision”), the PSIC noted the
following:
“Within the additional submissions provided on June
13, 2011, your lawyer outlined some procedural concerns he had with respect to
the investigation. After an extensive review of the Preliminary Report of the
PSIC investigation, I agree that the [sic] there were procedural
shortcomings with respect to the investigation at the point when it was ceased
in the fall of 2008” (Applicants’ Application Record, Vol. XVI, p. 5236).
[70]
Despite
recognizing that there were procedural fairness issues with the PSIO/PSIC
investigation, the PSIC concluded that those issues had no impact on the final
outcome.
“[…] [T]he previous Commissioner made a decision to
cease the investigation given that she was of the opinion that the subject
matter of the investigation related to a matter that resulted from a balanced
and informed decision making process on a public policy issue. The previous
Commissioner did not make a determination on the basis of the preliminary
conclusions of the incomplete investigation. Accordingly, in my opinion, the
deficiencies with respect to the investigative process played no role in the
final outcome.” (Applicants’ Application Record, Vol. XVI, p. 5236)
That
finding is not challenged by the Applicants.
[71]
Having
determined that Commissioner Dion had the authority to decide to review
Commissioner Ouimet’s decision and, applying the appropriate standard of
review, the Court must now determine whether his conclusion that Commissioner
Ouimet was correct in relying on paragraph 24(1)(e) of the PSDPA
to cease the investigation of the Applicants’ complaint of wrongdoing by Health
Canada was reasonable.
i.
Did
the PSIC err in not reopening the investigation of the Applicants’ allegations
closed by Commissioner Ouimet?
[72]
The
Court’s role is not to reweigh the evidence that was placed before Commissioner
Dion but to determine whether he made an error in assessing the file before
him.
[73]
The
Court finds that no such error was committed for the following reasons.
[74]
The
Court cannot find any omission to deal with the evidence adduced by the
Applicants in respect of this review. The Applicants argue that it was not open
to Commissioner Ouimet to rely on paragraph 24(1)(e) to cease the
investigation because that decision is contrary to the spirit of the PSDPA
and its quasi-constitutional status. The Court disagrees. Firstly, there is no
jurisprudence affirming that the PSDPA is quasi-constitutional. It is
clear from the preamble of the PSDPA that it is meant to strike a
balance between a public servant’s duty to his employer and his right to
freedom of expression guaranteed under the Canadian Charter of Rights and
Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11 [Charter]. The
fact that a right guaranteed under the Charter is at stake will not
elevate that statute to a quasi-constitutional status. In Lavigne v Canada (Office
of the Commissioner of Official Languages), 2002 SCC 53 at para 23, the
Supreme Court quoted the following passage from the Federal Court of Appeal in Canada
(Attorney General) v Viola, [1991] 1 FC 373, at page 386, in order to
demonstrate the kind of characteristics required to grant a piece a law
quasi-constitutional status :
“The 1988 Official Languages Act is not an
ordinary statute. It reflects both the Constitution of the country and the
social and political compromise out of which it arose. To the extent that it
is the exact reflection of the recognition of the official languages contained
in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms,
it follows the rules of interpretation of that Charter as they have been
defined by the Supreme Court of Canada. To the extent also that it is an
extension of the rights and guarantees recognized in the Charter, and by virtue
of its preamble, its purpose as defined in section 2 and its taking precedence
over other statutes in accordance with subsection 82(1), it belongs to that
privileged category of quasi‑constitutional legislation
which reflects “certain basic goals of our society” and must be so interpreted
“as to advance the broad policy considerations underlying it.”
[75]
The
Court does not find that the PSDPA possesses the qualities necessary to
give it a quasi-constitutional status.
[76]
The
Applicants argue that Commissioner Ouimet erred when she applied paragraph
24(1)(e) and that Commissioner Dion repeated the same error in
concluding that such a determination was available because all decisions entail
the exercise of a certain discretion hence all decisions taken by a person in
authority could theoretically be excluded from scrutiny. Such an application,
according to the Applicants, voids the Act of any effectiveness.
[77]
The
Court does not accept this interpretation. Commissioner Dion clearly states
that: “The determination of the level of science required is within the
Minister’s discretion under the Food and Drug Act”. In order to come to
such a determination, the Commissioner necessarily had to assess whether the
Minister’s decisions with respect to the approval of the drugs at issue and his
determination of the required level of scientific evidence to warrant such
approvals followed the Regulations. In Chrétien v Canada, 2002 FCT 506 at para 24, the Court stated that :
[24] The Supreme Court, per McIntyre has dealt with
the deference which courts must show when a decision has been made in the
exercise of a discretionary power. See Maple Lodge Farms v. Government of Canada, 1982 Can LII 24 (SCC), [1982] 2 S.C.R. 2, at 7: It is, as well, a clearly
established rule that the courts should not interfere with the exercise of a
discretion by a statutory authority merely because the court might have
exercised the discretion in a different manner had it been charged with that
responsibility. Where the statutory discretion has been exercised in good
faith, and where required, in accordance with the principles of natural
justice, and where reliance has not been placed upon considerations irrelevant
or extraneous to the statutory purpose, the courts should not interfere.
[78]
It
is clear from the above, and contrary to the Applicants’ contention, that there
are occasions where the Courts will and can intervene.
[79]
Furthermore,
as the Court reviews the discretion granted to the Commissioner under section
24, it is apparent that the section affords several grounds on which the
Commissioner can rely to refuse to deal with a disclosure. In sum, the Act
grants the Commissioner a broad discretion. In Detorakis v Canada (Attorney General), 2010 FC 39 at para 106, the Court states that:
[. . . ]
i.
The
discretionary power under section 24(1) is extremely wide. Its apparent
objective is to allow the PSIC to decide whether it is in the public interest
to investigate a complaint or to determine, on the basis of the information
provided by a complainant, whether the matter could be better dealt with under
another Act. The PSIC’s office must be taken to have some expertise in this
matter;
[. . . ]
[80]
In
the present instance, that discretion was exercised in 2009 taking into
consideration that section 24 now applied to the Applicants’ complaint in view
of the section 54.3’s transitional provision.
[81]
The
Applicants argue that, in order for the Commissioner to refuse to deal with
their disclosure pursuant to paragraph 24(1)(e) of the PSDPA
because she found its subject “relates to a matter that results from a balanced
and informed decision-making process on a public policy issue”, she was
required to make a finding of fact that all the conditions necessary to the
application of the paragraph were met, which she failed to do.
[82]
As
the Court reviews the evidence adduced before the Commissioner, it is apparent
that she was faced with significant differences in scientific opinion between
the Applicants, their employer and some of their colleagues and co-workers. She
also had before her the Regulations, the FDA and the applicable
standards. It is evident to the Court, as we review Commissioner Dion’s reasons
and his decision to leave the file closed, that all these were considered and
that an implicit finding of fact was made. That decision fell within a range of
possible outcomes as the scientific debate could not be resolved by the
Commissioner.
[83]
The
Applicants also argue that the Court in Chopra, cited above, found
that a proper investigation of the approval processes for all of the drugs
listed in the disclosure could have an impact on the assessment of their file.
The Court disagrees. The ratio decidendi of the decision in Chopra
was that the PSIO had undertaken to examine the approval procedure for 8
veterinary drugs but only examined the procedure for Component with Tylan
drugs. While the PSIO had concluded that Ministerial discretion was properly
exercised with regards to Component with Tylan drugs, the Court had “no way of
knowing what conclusions would have been reached by the PSIO had these other
issues been considered” (Chopra, at para 73).
[84]
After
the decision in Chopra, cited above, the PSIO investigated the approval
processes for the remaining drugs listed in the Applicants’ disclosure and
concluded, in its Preliminary Report, that Ministerial discretion had been
properly exercised.
[85]
Mr.
Ron Calvert, the investigator assigned to the file, concludes that no drugs were
approved in a way that was contrary to the FDA and its Regulations,
and that the investigation did not permit him to conclude that veterinary drugs
were approved in the absence of human safety data as a result of pressure
exerted on the disclosers at Health Canada, or that the drug evaluators faced
disciplinary action for failure to follow management’s instructions by
favouring the veterinary pharmaceutical drug lobby (see Preliminary
Investigation Report dated March 12, 2008, Applicants’ Application Record, Vol.
XIII, page 4312). Clearly this finding reconciles the Commissioners’ decisions
with Justice O’Keefe’s judgment. Mr. Calvert came to the aforementioned
conclusions after a review of the approval process for the drugs that Justice
O’Keefe had found missing.
[86]
Both
Commissioners Ouimet and Dion had before them these conclusions that found that
the Minister had acted within the limits of his delegated authority.
[87]
The
issue at hand is whether the investigation of the approval processes was
sufficiently thorough. This is clearly distinguishable from the case in Chopra,
cited above, where there had been no investigation. Commissioner Ouimet decided
that a more thorough investigation would not change her conclusion given that
the same issue of a scientific disagreement was at the heart of the approval
process for each drug. This conclusion was reasonable and open for her to make
in view of the evidence on file. Commissioner Dion reasonably exercised his
discretion not to reopen the Applicants’ file since he came to a similar
conclusion based on the evidence on file.
[88]
To
the extent that the Applicants are invoking the ground that Commissioner Ouimet
failed to dispose of an issue which was fairly raised by the proceedings by not
properly addressing the second and third applications, their argument must
fail. This ground for reopening applies when an administrative decision-maker
fails to dispose of an issue and not whether it was properly disposed of.
Furthermore, the finding that the issues were interrelated was open to
Commissioner Dion in view of the evidence adduced before her by the Applicants
that they were under pressure because of their scientific beliefs and the
reprisals allegedly taken against them.
[89]
The
Court is of the view that Commissioner Dion’s decision was reasonable since he
took into consideration all the elements before him and found that his
predecessor’s determination was properly based on paragraph 24(1)(e). The
evidence on file could reasonably bring about such a conclusion.
[90]
In
view of the fact that the Applicants have failed to establish that Commissioner
Dion committed a reviewable error when he assessed his predecessor’s decision
to close the investigation of their complaint, the Court rejects this
application for judicial review with costs.
[91]
The
parties having suggested the amount of costs to be paid, whether the Applicants
or the Respondent were successful, the Court awards costs of $ 5 000.00
to the Respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed with costs of $5 000.00 payable by the Applicants to the
Respondent.
"André F.J.
Scott"
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