Date: 20140127
Docket: T-429-13
Citation: 2014 FC 87
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, January
27, 2014
PRESENT: The Honourable Mr.
Justice Annis
BETWEEN:
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AGNAOU, Yacine
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Applicant
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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
[1]
The Court has before it an application under
section 51.2 of the Public
Servants Disclosure Protection Act, SC 2005, c 46 [Act], for judicial review of a decision
dated February 12. 2013, [decision] in which the Office of the Public
Sector Integrity Commissioner [OPSIC] refused to deal with a reprisal complaint
because it was of the opinion that the complaint was beyond its jurisdiction pursuant
to paragraph 19.3(1)(c) of the Act. The applicant is asking that the
decision be set aside and remitted to the OPSIC for redetermination by an
independent decision‑maker who is proficient in French, with the
directive to commence an investigation into the reprisal allegations.
[2]
The
issue raised in this case is directly linked to the issue in another docket, Agnaou
v Attorney General, 2014 FC 86 [Agnaou No. 1], which was heard by
this Court a few weeks before this case and which was therefore released at the
same time as this decision.
[3]
In
Agnaou No. 1, above, the alleged fault was connected to a difference of
opinion between work colleagues concerning the decision by the Attorney
General, the Public Prosecution Service of Canada [PPSC] and the Quebec
Regional Office [QRO] to not prosecute in a certain file “A”, which had been
assigned to the applicant, who was a federal Crown prosecutor at the QRO of the
PPSC at that time.
[4]
The
circumstances that gave rise to Agnaou No. 1, above, ended on
March 24, 2009, when the applicant was informed by his superiors that the
decision to not prosecute was final. Subsequently, the applicant filed a
disclosure with the OPSIC in which he claimed that his superiors and their
subordinates had taken reprisals. The OPSIC concluded that there had been no
reprisal, a decision that was upheld by this court in Agnaou No. 1, above.
[5]
The
facts of this case took place immediately after those in Agnaou No. 1, above.
On April 1, 2009, less than two weeks after the applicant’s superiors
informed him of their decision to not prosecute in file A, the applicant asked
one of his superiors, Mr. Morin, to reconsider that decision. Mr. Morin
gave him an answer the same day, saying that the decision was final. The
applicant therefore told another manager who had been involved in the
discussion that he intended to submit the issue to the Director of Public Prosecutions
for review. The same day, that manager replied that the decision to not
prosecute was final and that the client agency had already been informed.
[6]
The
applicant replied, in turn, that given that the decision had been communicated
to the client, he would reconsider his intention to submit the issue to the Director
of Public Prosecutions. He also indicated that he would focus on his work in
the upcoming weeks and that, depending on the circumstances, [translation] “if necessary”, he would
decide what to do. He did not pursue this matter with the Director of Public Prosecutions.
[7]
However,
in January 2013, about three and a half years later, he filed a complaint regarding
these incidents, alleging that Mr. Morin and numerous other senior
managers had taken reprisals against him by reclassifying a position for which
he claimed priority. The Commissioner rejected the complaint at the preliminary
stage on the basis that there had been no disclosure.
[8]
It
is clear that if there was no wrongdoing committed around these incidents that
ended on March 24, 2009, there could also not be a wrongdoing committed
two weeks later when the applicant asked the same managers to reconsider their
decision. At the hearing, which focused on the issue of whether or not there
had been a disclosure, counsel for the Attorney General was questioned about
whether there had been a reprisal, and he answered that the issue would be
determined in Agnaou No. 1, above.
[9]
I
agree that the issue of whether reprisals were taken was determined in Agnaou
No. 1, above. Accordingly, this Court has already determined in Agnaou No.
1, above, that there was no evidence of reprisals in the circumstances that
preceded the circumstances in this case.
[10]
I
also agree with the respondent that the applicant’s statement that he would
reconsider his intention to submit the issue to the Director of Public Prosecutions
and that, if necessary, he would decide what to do, is not a disclosure of
wrongdoing.
[11]
OPSIC
never told the PPSC that this disclosure had been filed, and the applicant was
unable to show that the PPSC was aware of the alleged disclosure. A body that
is unaware of the existence of a disclosure cannot take a reprisal within the
meaning of the Act.
[12]
I
also reject the applicant’s argument that the Commissioner erred by focusing on
the exchange of emails between April 1 and 2, 2009, for the purpose of
determining the nature of the disclosure. The analyst in charge of the file
wrote to the applicant asking him to indicate where the evidence of the
disclosure could be found in his materials. The applicant had submitted 650
pages of documentation at first instance, Agnaou No. 1, above, which
were also included in the documentation filed with the OPSIC in the context of
the second complaint, with 300 pages of additional documentation. In his response,
the applicant referred the OPSIC to the exchange of emails dated April 1
and 2, indicating in his letter that the OPSIC should take into consideration
all the documents filed.
[13]
In
an attempt to show that there was additional evidence of the disclosure in the
materials, the applicant referred the Court to the emails he exchanged with
Mr. Morin between April 3 and 7, 2009. They relate to a discussion
that occurred between him and his managers, which began on March 31, 2009,
during which his managers expressed their concern about the applicant’s health
and the stress he was under. The managers suggested that he should take some
time off and consult a physician. Mr. Morin stated that these discussions
occurred because of employees’ complaints about their safety. The managers acted
upon these concerns, and on April 7 the applicant was ordered to stay away
until he could provide a letter from his physician confirming that he was able
to continue his duties.
[14]
The
applicant complained in his exchanges with his superiors that forcing him to
stay away from the office was a form of reprisal because of his opposition to
the decision to not prosecute in file A. However, these discussions were begun
prior to the incidents that constitute the alleged disclosure, and therefore it
cannot be argued that they happened because of the alleged disclosure. In
addition, the applicant filed a grievance about his managers’ actions, which
was ultimately abandoned.
[15]
I find
nothing in these circumstances that strengthens the applicant’s argument that
the alleged disclosure was made on April 1 and 2, 2009, or shortly
thereafter.
[16]
I
also reject the applicant’s argument that his right to procedural fairness was
breached. His argument was of the same nature as the one he made in Agnaou
No. 1, above, where I found that it was without merit.
[17]
Given
that there was no wrongdoing or disclosure, I find that the OPSIC’s decision to
refuse to deal with the applicant’s complaint was completely reasonable.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that
the application for judicial review is dismissed.
“Peter Annis”
Certified
true translation
Mary
Jo Egan, LLB
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