Date:
20140403
Docket: T-1137-13
Citation: 2014 FC 329
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, April 3, 2014
Present:
The Honourable Mr. Justice Annis
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BETWEEN:
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SYLVAIN
MARCHAND
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Applicant
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and
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THE
PUBLIC SECTOR INTEGRITY COMMISSIONER AND THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
Introduction
[1]
This is an appeal from an order of
November 21, 2013, by Prothonotary Mireille Tabib, under section 51 of
the Federal Courts Rules, SOR/98-106 (the Rules). Prothonotary Tabib
(the Prothonotary) allowed the motion made by the appellant (the applicant) to
obtain an order requiring the Public Sector Integrity Commissioner (the
Commissioner) to transmit documents in accordance with sections 317 and 318 of
the Rules. The motion was filed as part of an application for judicial review of
a decision of the Commissioner dated May 28, 2013, that the applicant committed
two serious breaches of the Values and Ethics Code for the Public Sector,
potentially misused public funds and was responsible for serious breaches with
respect to management.
[2]
The appeal is dismissed for the
following reasons, but with some changes to the Prothonotary’s order.
Factual
background
[3]
The applicant, Sylvain Marchand, who is
the subject of the above-noted decision, is a former Chief Information Officer
at the Canada School of Public Service (the School).
[4]
The decision is the result of an
investigation led by the Commissioner under the Public Servants Disclosure
Protection Act, SC 2005, c 46 (the Act or PSDPA) following disclosures of
wrongdoings that the applicant allegedly committed.
[5]
On August 31, 2012, the applicant received
a Notice of Inquiry from the Commissioner relating to six allegations of
wrongdoing.
[6]
The applicant alleges that between March
2012 and November 2012, the Commissioner did not give the applicant the
opportunity to know from where or whom the allegations against him came or to
know of what he was accused.
[7]
In November 2012, the applicant’s
counsel required that the Commissioner reveal the information justifying that
he be investigated. Counsel for the applicant also expressed his apprehension
that the investigator, Christian Santarossa, is biased because of the [translation] “reprehensible conduct” that
he showed during a meeting in September 2012 and, therefore, he refused any
future meetings between the applicant and Mr. Santarossa. Following an exchange
of letters, the Deputy Commissioner replaced Mr. Santarossa with Stéphanie
Dumas.
[8]
On May 28, 2013, the Commissioner
accepted the recommendations of the final report of the investigation and noted
that the applicant had committed wrongdoings: either by misusing public funds through
favouritism in awarding contracts; by creating an unhealthy work environment because
of his abusive and disrespectful behaviour and by improperly using the workforce
reduction exercise as an opportunity to dismiss employees for personal and not
objective reasons.
[9]
The applicant alleges that he is a victim
of a political war waged by a group of individuals who were unhappy with their
employer’s decision to declare their positions surplus because of budget cuts
that their department had to make. He stated that the people who provided evidence
to the Commissioner’s investigations made misrepresentations and provided
inaccurate and slanderous facts about him, of which he was not aware.
[10]
In June 2013, the applicant initiated a judicial
review under sections 18 and 18.1 of the Federal Courts Act, RSC
1985, c F-7, alleging that, among other things, the Commissioner did not
respect procedural fairness and the principles of natural justice, contrary to
paragraph 22(d) of the Act: i.e. “ensure that the right to
procedural fairness and natural justice of all persons involved in
investigations is respected, including ... persons alleged to be responsible
for wrongdoings” (the relevant statutory provision is in the appendix).
[11]
In his notice of application for
judicial review, Mr. Marchand requested, under section 317 of the Rules,
that the Commissioner transmit a certified true copy of a list of documents that
were not in his possession, including the list of witnesses in the
investigation, the transcripts of the interviews and notes of discussions relating
to the applicant between the Commissioner or members of his office and certain witnesses.
[12]
The respondents opposed the transmission
of the documents under subsection 318(2) of the Rules, raising paragraph 22(f)
of the Act, which imposes on the Commissioner the duty to “establish procedures
for processing disclosures and ensure the confidentiality of information
collected in relation to disclosures and investigations”.
[13]
Therefore, the applicant filed a motion for
a disclosure order of certain documents indicated in his notice of application
under section 318 of the Rules.
The
impugned decision
[14]
In her order, the Prothonotary noted that
the arguments presented by the applicant in his motion record do not justify
the relevance of the requested documents.
[15]
However, the Prothonotary commented that
the applicant’s argument evolved during the hearing to show that the notes and
recordings of witness interviews could establish that the alleged bias on the
part of Investigator Santarossa permeated and compromised the integrity of the
investigation and the investigation report. In reading the notice of
application in a broad and liberal manner, she found that the argument that the
applicant made during the motion hearing flowed logically from the facts and grounds
for review stated in the notice.
[16]
For these reasons, the Prothonotary awarded
the motion and made an order including the following directives:
[translation]
2. The
Commissioner will transmit to the other parties’ counsel the documents sought
in the notice of motion, at the latest by December 19, 2013.
3. The
parties’ counsel will process the documents transmitted confidentially and will
not divulge them to anyone, including their respective clients, until further
order of the Court.
4. The
parties will exchange and file with the Court as documents to be processed as
documents relating to the dispute resolution conferences and will do so
confidentially at the latest by February 3, 2014, their respective
positions as to questions that are or remain at issue in this file, as well as
the documents, recordings or any part of these that they consider relevant.
…
6. The costs
of the motion are awarded against the applicant and in favour of the Attorney General
of Canada and the Integrity Commissioner.
[17]
The respondents seek to have the
Prothonotary’s order set aside on the ground that it is clearly wrong in that
it orders the communication of information collected during the investigation so
as to allow the applicant’s counsel to find evidence in it to validate his argument
of the investigator’s bias. According to the respondents, this argument is not
supported by specific facts or by the evidence and is not written in his motion.
The respondents state that this exercise is tantamount to authorizing a “fishing
expedition” in the investigation record on the basis of general allegations of bias
in a context where the information collected during the investigation also benefits
from a measure of confidentiality under paragraph 22(f) of the Act.
[18]
The respondents rely on Esgenoôpetitj
(Burnt Church) First Nation v Canada (Human Resources and Skills Development),
2010 FC 1195 at paragraph 53 to point out that applicants are only authorized
to receive documents transmitted under Rule 317 when they show that the
information sought would help the Court in its determination of the merits of
facts argued in support of the application for judicial review.
[19]
The applicant argues that it is wrong to
believe that the notice of application does not describe an apprehension of bias,
as noted by the Prothonotary Tabib. Further, he argued that only the transmission
of the documentation required will enable a just and equitable judicial review
and will help show that the bias is founded. As for the confidentiality of the
information collected during the investigation, the applicant points out that
the court record already includes numerous personal documents and preliminary
inquiry reports including the names of a great majority of witnesses and substantial
portions of their testimony. Finally, he observed that there is no privative clause
in the Act to entitle reducing the documentation that must be transmitted under
section 317 of the Rules.
Issues
[20]
The issues are as follows:
1. Is
the applicant entitled to an additional disclosure on the basis of allegations of
the investigator’s bias?
2. Is
the applicant entitled to an additional disclosure given the serious
consequences that resulted from the investigation that was used as a basis for
the Commissioner’s decision?
3. Does
the confidentiality of the PSDPA limit the disclosure of documents in the
certified record?
Standard
of review
[21]
In ZI Pompey Industrie v ECU-Line NV, 2003 SCC
27, the Supreme Court noted:
18 Discretionary
orders of prothonotaries ought to be disturbed by a motions judge only where
(a) they are clearly wrong, in the sense that the exercise of discretion was
based upon a wrong principle or a misapprehension of the facts, or (b) in
making them, the prothonotary improperly exercised his or her discretion on a
question vital to the final issue of the case: Canada v. Aqua-Gem
Investments Ltd., [1993] 2 F.C. 425 (C.A.), per MacGuigan J.A.,
p. 462-463.
Analysis
Introduction
[22]
The attorney general argued that the
Prothonotary applied a test of speculative relevance (i.e. a fishing expedition)
based on the hypothesis that if the documents were disclosed, they could establish
the appearance of the investigator’s bias. The attorney general argued that in
accordance with the appropriate test, the applicant must show an arguable case as
to the fact that the investigator lacked impartiality on the basis of the information
that he presented to the Court, not on the basis of what may or may not be in
the investigator’s file.
[23]
In addition to adopting and expanding
somewhat on the attorney general’s arguments, the Commissioner argued that the
Prothonotary erred in ordering the transmission of the documents requested of
the applicant’s counsel without taking into account the content of the duty of fairness
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
(Baker)) with respect to statutory provisions on confidentiality limiting
the disclosure of documents obtained during an investigation conducted within
the context of the PSDPA.
[24]
The Commissioner argued that decisions on
issues of this nature must not be made in the interlocutory context of a pre-hearing
conference, but should instead be made at the level of the application. Therefore,
he requests that the Court suspend the execution of the Prothonotary’s order, if
it is not set aside. I reproduce below paragraphs 4 and 5 of the Commissioner’s
memorandum:
[translation]
4.
The
danger in applying too broadly or in a speculative manner the test under section 317
consists in the fact that the Court may, without being aware of it,
predetermine the outcome of the proceedings without having the opportunity or
the evidence to analyze the application on merit. In this case, the analysis of
the degree of appropriate procedural fairness will include the consideration of
the statutory regime provided in the Public Servants Disclosure Protection
Act (the Act). In this regard, the protection offered to disclosers and witnesses,
with respect to the information obtained during an investigation relating to
the alleged wrongdoings, was not considered by the Prothonotary at all before
making the order under appeal.
5.
Although,
in clear situations, a reviewing court determining an application for judicial
review may decide that the specific circumstances of a proceeding would require
a higher level of procedural fairness than was given by the Court during the
proceeding, the Commissioner respectfully submits that the appropriate forum to
do so is at the level of merit, not at the interlocutory step of section 317.
The order under appeal, if affirmed, would stall the willingness of current and
potential whistleblowers to freely state their concerns because of further exposure
to possible reprisals.
[25]
In light of these observations and for
other reasons, I decided to rule on the issue of possible restrictions of disclosure
because of the provisions of confidentiality in the PSDPA such as initially
raised by the parties in the motion. I agree that it is not an issue that
should be determined during a pre-hearing conference by examining each document;
rather, it would be appropriate to create some general principles regarding the
balance between disclosure requirements that normally apply and the limits that
could be imposed under the Act.
[26]
Further, I find that it is difficult to
not rule on all the issues of disclosure at the same time, especially insofar as there is no need to only address
one issue with two parts that must be weighed and considered with respect to
each other. I am also aware of the delay and additional costs that may result
from future decisions on the effect of the provisions on the confidentiality of
disclosures that would be submitted to another appeal.
[27]
I do not see anything that would prevent
the Court from making decisions on the confidentiality of documents at this stage
of proceedings, as had been raised by the parties and, indeed, I do not see any
other practical method to address the issue of the disclosure of the investigator’s
file. Further, to allay fears of a premature disclosure of the Commissioner’s files,
my order will be suspended awaiting the possible exercise of the respondents’
right of appeal. If the matter is appealed, the Court of Appeal will have all
the issues before it at the same time, in addition of any benefit that could
result from this Court’s findings on the definition of issues to be decided.
[28]
For the reasons that follow, I reject
the respondents’ arguments, finding that the Commissioner’s record must be
completely disclosed, despite the confidentiality provisions of the PSDPA. I made
this finding in part by affirming the Prothonotary’s order. Even more importantly,
I find that the disclosure of the investigator’s file is necessary based on arguments
first raised by the applicant in his motion, before redirecting his submissions
to the issue of the apprehension of the investigator’s bias.
[29]
I find that the applicant first argued
that the disclosure of the documents was necessary given the fact that the
Commissioner relied on a non-transparent investigation process that significantly
prejudice him by finding that he had committed serious wrongdoings. In my view,
these factors require a high level of fairness toward the applicant, which requires
a broad interpretation of exceptions to the PSDPA confidentiality clauses. The complete
disclosure of the requested information is necessary to allow the applicant to
be fully informed of all details regarding the manner in which the investigation
was conducted to make its findings, in addition to the need for this
information to be put before the Court for the proper settlement of this matter.
More reasons on these issues follow below.
Is
the applicant entitled to an additional disclosure on the basis of allegations
of the investigator’s bias?
[30]
It is well established that, as a
starting point, the record before the Court should be limited to the documents that
were before the Commissioner when the decision was made. Generally, they are
the investigator’s report and the documents that were before the Commissioner (see
Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455, at para 11-12
(Pathak)). However, the Court would require the disclosure of documents beyond
those before the decision-maker where a breach to procedural fairness is alleged
or the investigator’s report is allegedly inaccurate or incomplete (Pathak at
paras 19-22; Clark v Canada (Attorney general), 2007 FC 9 at paras 32-40;
Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and
Advertising Activities), 2006 FC 720 at paras 50-52, aff’d by 2007 FCA
131 (Gagliano); Deer Lake Regional Authority Inc v Canada (Attorney
General), 2008 FC 1281 at paras 29-35).
[31]
In his documents attached to the motion,
the applicant argued that there was a breach of procedural fairness. However, none
of the allegations made concerned an apprehension of the investigator’s bias. The
Prothonotary allowed the applicant to change his argument along the way to base
his request for disclosure on the allegations of the investigator’s bias. She considered
the notice of the application for judicial review, by pointing out the presence
of numerous elements that raised concerns of the investigator’s bias during the
investigation. I find that the Prothonotary did not err in allowing the
applicant to vary his argument, except to the extent that it would prejudice the
respondents by taking them by surprise. When I raised this issue, there was no
indication of prejudice or that a request for an adjournment was considered necessary.
[32]
I agree with the Prothonotary’s
caracterization of the notice of application as sufficient evidence that the
issue of the investigator’s bias was raised. Using the notice of application, to
define the parameters of relevance, is generally accepted before this Court (see,
for example, Ecology Action Centre Society v Canada (Attorney general),
2001 FCT 1164 at para 6; Gagliano, above, at para 49).
[33]
The exhaustive, almost verbose, notice
of application refers to extensive documentary evidence and, in my view, provides
a sufficient basis to establish that the investigator’s initial bias was a serious
issue in this matter.
[34]
First, the evidence on the record contained
documents referring to the applicant’s allegations against the investigator during
the investigation. These allegations, although rejected by the Commissioner, have
resulted in the appointment of another investigator to lead the investigation. This
shows that the investigator’s impartiality was a current issue during the
investigation and not an issue invented after the fact.
[35]
Second, some doubt remains as to the
extent to which the report relied on the first investigator’s findings, given
the fact that he co-signed the reports. Therefore, assigning a second
investigator to the record does not seem to have allayed concerns as to the first
investigator’s contributions to the report.
[36]
Third, the documents provided as
evidence show the existence of submissions filed by the applicant’s staff, which
are very critical toward the investigator, including suggestions that he
intimidated Mr. Marchand and his staff in a somewhat contradictory manner.
This evidence was in the certified record before the Prothonotary at the time that
she made her decision.
[37]
I am of the view that the test to apply
in the context of an allegation of impartiality of an investigator is that
expressed by Justice Mactavish, when she dealt with the same issue regarding
the Canadian Human Rights Commission in Hughes v Canada (Attorney general),
2010 FC 837 at paragraphs 23 and 24:
[23] That
said, because of the non-adjudicative nature of the Commission’s
responsibilities, it has been held that the standard of impartiality required
of a Commission investigator is something less than that required of the
Courts. That is, the question is not whether there exists a reasonable
apprehension of bias on the part of the investigator, but rather, whether
the investigator approached the case with a “closed mind”: see Zündel v.
Canada (Attorney General) (1999), 175 D.L.R. (4th) 512, at paras.
17-22.
[24] As the
Court stated in Broadcasting Corp. v. Canada (Canadian Human Rights
Commission), (1993), 71 F.T.R. 214 (F.C.T.D.), the test in cases such as
this:
[I]s not whether
bias can reasonably be apprehended, but whether, as a matter of fact, the
standard of open-mindedness has been lost to a point where it can reasonably be
said that the issue before the investigative body has been predetermined.
[Emphasis
added.]
[38]
In the case of an order to disclose
additional documents in an application for judicial review, I think that, on
the basis of the attorney general’s submissions, the test would be to know
whether there is a reasonably defensible argument that the investigator seems
to have adopted a closed attitude against the applicant. Based on this standard,
I am persuaded that the Prothonotary had sufficient evidence before her to conclude
that an appearance of bias was a significant issue in this proceeding so that a
fairly arguable case was established to order the additional disclosure of the Commissioner’s
file.
Is the
applicant entitled to an additional disclosure given the serious consequences that
resulted from the investigation that was used as a basis for the Commissioner’s
decision?
[39]
In the documents in support of his request,
the applicant argued that because of the importance of the investigation’s role
in determining the final outcome, unless the documents are disclosed, it would
be impossible to understand the logic of the report. Further, he argued that
the PSDPA provisions limiting the confidentiality of information gathered
relating to disclosures should not apply once the Commissioner has found that the
applicant has committed serious wrongdoings. He linked these arguments to the
highly prejudicial nature of the recommendations and the lack of transparency in
the investigation, which prevented him from understanding how the investigator had
made the findings of fact. Without knowing how the investigator reached his findings,
he could not defend himself. Moreover, without knowing how the investigation
was conducted, the Court could not decide whether he was treated fairly during
the investigation.
[40]
I reproduce below paragraphs 21 to
31 of the applicant’s affidavit in support for his request for additional
disclosure:
[translation]
21. These
documents are part of the Commissioner’s investigation file;
22. Further, everything
suggests that these documents have had a significant impact on the Commissioner’s
decision to investigate the applicant and on the findings of the disputed investigation
report, as the decision describes;
23. Therefore, as
the information contained in this documentation is directly related to the
grounds for dispute, they are required for the purposes of this case and for disputing
the Commissioner’s investigation report because without this information, it is
impossible to understand the rationale of the report;
24. Further,
access to these documents is required to avoid violating the audi alteram
partem rule, a right recognized by procedural fairness and the principles
of natural justice;
25. Indeed, it
is impossible for me to attack the probative value and the truth of the complaints
filed against me without knowing the complainants, the full contents and the
context of the questions asked;
26. It is impossible
for me to defend myself against the complaints and accusations filed against me
without knowing their full content;
27. This
documentation is relevant to the application for judicial review in that it had
a crucial role to play, not only as concerns the Commissioner’s decision to
launch an investigation, but also as concerns the findings of his investigation
report;
28. It is also vital
that I have the chance to file these documents and materials in the Court’s
record so that it may consider the entire record that was before the
Commissioner during the investigation;
29. The Commissioner’s
refusal to transmit the required documents is not justified;
30. Indeed, although
the Public Servants Disclosure Protection Act provides for the confidentiality
of the information in question, this confidentiality cannot survive in an
adversarial context, the scope of which is the reputation of an individual who
is suspended from his duties because of an investigation and who is exposing
himself to serious future consequences related to whether this report has merit,
given the nature of the recommendations that the Commissioner has the power to
give in the circumstances, as provided in section 22 of the enabling statute;
31. Finally, since
one of the grounds for disputing the Commissioner’s investigation is the breach
of procedural fairness, the concept of documents relevant to the application
must be interpreted broadly and the documents surely cannot be deemed irrelevant
without first allowing the Court to read them;
[41]
In my view, the applicant was essentially
on the right track when he argued that the nature of the decision-making
process and the serious consequences imposed on him were potentially a breach
of the principles of natural justice and of procedural fairness that he was
owed by refusing to give him access to the specific information on how the
investigator gathered the information that was used as a basis for his findings
of fact.
[42]
The applicant faced a recent and fairly
innovative legislative act containing a number of provisions that emphasized
the need to ensure the confidentiality of the entire disclosure process. Instead
of tackling the legislation head-on by arguing that it is appropriate to interpret
the procedural fairness provisions with more generosity of spirit, it is
perhaps understandable that he would argue that these provisions would be
somewhat mitigated following a finding of his wrongdoing. I do not find that
there is a marked difference between the requirement to disclose during the decision-making
process and after the negative decision has been taken.
[43]
Nevertheless, I think that he is correct
to say that the seriousness of the impact of the Commissioner’s decision combined
with the lack of transparency in the investigation and the disclosure processes
raises fundamental issues of fairness that the reviewing court must consider. Moreover,
he may not have far long enough when he argued that breaches to fairness take
place only once the final decision is made and not during the investigation.
[44]
However, after defining the most
important two factual elements of the breaches to fairness that he wants to
dispute—serious prejudice experienced and lack of transparency in the
investigation process—I have no difficulty in extending his submissions to
include the allegation of not being treated fairly in accordance with the provisions
of the PSDPA; in other words, contrary to paragraph 22(d) and subsection 27(3)
of the Act. These provisions are reproduced below with my emphasis, as follows:
22. The
duties of the Commissioner under this Act are to
…
(d) ensure
that the right to procedural fairness and natural justice of all persons
involved in investigations is respected, including persons making
disclosures, witnesses and persons alleged to be responsible for wrongdoings;
27. (3)
It
is not necessary for the Commissioner to hold any hearing and no person is
entitled as of right to be heard by the Commissioner, but if at any time during
the course of an investigation it appears to the Commissioner that there may
be sufficient grounds to make a report or recommendation that may adversely
affect any individual or any portion of the public sector, the
Commissioner must, before completing the investigation, take every
reasonable measure to give to that individual or the chief executive
responsible for that portion of the public sector a full and ample opportunity
to answer any allegation, and to be assisted or represented by counsel, or
by any person, for that purpose.
[45]
I would not like to strictly limit the
arguments of the applicant to problems of transparency. The lack of transparency
in the investigation is a major issue in this matter, but I believe that it is
only one aspect of the most fundamental issue, which is the appropriateness of
a non-transparent investigation to make findings of credibility that were the
basis of the Commissioner’s decision. On this basis, I summarize the applicant’s
original arguments as follows:
[1] The
applicant experienced serious consequences following the Commissioner’s
decision because of its impact on his employment situation, i.e. being suspended
from his position and damage to his reputation, which are consequences resulting
from the investigation ;
[2] Neither
the investigator or the Commissioner have taken all reasonable measures to be
entitled to procedural fairness or any possibility of responding to the allegations
against him because of the lack of transparency and the appropriateness of the investigation
process to determine a matter relying in large part on findings of credibility;
and
[3] For
the applicant to respond to the attacks against him from various witnesses and
to defend himself, as well as for the Court to review these issues and consider
the appropriateness of the investigation process as it was conducted given the
consequences he experienced, the Court must have the details on how the
investigation was conducted, which requires the disclosure of the investigator’s
file.
[46]
Considering the central role played by
the investigation process of the decision, I agree that the investigator’s file
must be disclosed and be part of the certified record to allow the Court to
decide the issue on the basis of the evidence regarding how the investigation
was conducted, not only its findings.
[47]
The obligation to disclose the
investigator’s file is, however, subject to my other comments below relating to
the limits to the disclosure resulting from the confidentiality provisions of
the PSDPA. However, before that, I will comment on the issue of prejudice to
the applicant resulting in the Commissioner’s decision and I will describe some
known weaknesses of investigations so as to draw factual conclusions on credibility,
as well as other issues that require the full disclosure of the investigation
process.
Final
decision resulting in serious consequences for the applicant
[48]
The Commissioner stated that the
applicant had committed several wrongdoings by misappropriating public funds and
serious breaches in management, to the detriment of his work colleagues. There
is no doubt that the decision clearly had a negative impact on the applicant’s
career resulting in his suspension from work, while damaging his reputation. Moreover,
I am certain that it is a decision that caused him a great deal of emotional
stress and personal embarrassment that will continue in the future.
[49]
The Commissioner’s finding that the
applicant committed serious wrongdoings is a final and binding decision under
the PSDPA. Therefore, the appointed head of the school must take measures to remedy
the situation. Therefore, it is not as though the Commissioner exercised an
intermediary duty or acted as a step in another process, such as when he refers
a complaint of reprisals to the Public Servants Disclosure Protection Tribunal
for a hearing.
[50]
Although it is not the Commissioner’s
duty to ensure that the applicant is disciplined, the Act provides that disciplinary
measures, including the termination of employment, may result in wrongdoing. The
Commissioner may require that the appointed head takes measures to implement the
recommendations contained in the report, or that he provided reasons for which
no measure was taken. If a disciplinary measure was taken and the applicant succeeded
in defending himself against it, it seems that there is no provision in the Act
for a withdrawal of the statement relating to committing the wrongdoing. In
other words, the judicial review proceeding is the only opportunity for the
applicant to cancel the decision that he committed a wrongdoing, as determined
under the PSDPA.
[51]
There are measures in the legislation that
require the protection of the confidentiality of the decision and the identity
of individuals involved in the disclosure process. Nevertheless, a copy of the
decision must be provided to employees who made the disclosure. Further, on receiving
the Commissioner’s decision, the federal agency is required under paragraph 11(1)(c)
of the Act to “promptly provide public access to information that ... describes
the wrongdoing, including information that could identify the person found to
have committed it if it is necessary to identify the person to adequately
describe the wrongdoing”. The Commissioner is required to point out the case to
Parliament and include an abridged reference to the case in the Commissioner’s annual
report.
[52]
I am persuaded that, following an investigation
on the circumstances and the scope of this question, the school staff allegedly
learned the details of the decision and the identity of Mr. Marchand as the
wrongdoer who misused public funds and committed acts constituting serious
breaches in management. A journalist with weak deduction skills could discover and
publish the applicant’s identity. The applicant did not request an order of confidentiality
for his identification, which, in my view, shows that the damage to his reputation
because of the report has already taken place.
The
role and nature of an investigation under the PSDPA
[53]
The Commissioner adopted the findings
and recommendations of the investigator’s report in this matter. It is well recognized
that when it is produced, the report is part of the decision under review in
the application for judicial review (see Sketchley v Canada (Attorney General), [2005] FCJ No 2056 at paras 36-39).
[54]
However, this seems to be one of the rare
cases where an investigation largely determines the final decision on the
finding of a serious wrongdoing by an individual. Thus, the investigation carries
clearly more harmful consequences and even plays a very different role from an investigation
conducted on alleged reprisals under the Act, or from an investigation conducted
by other federal agencies for similar purposes of controlling access, such as the
Canadian Human Rights Commission.
[55]
For the complaints under human rights legislation,
such as a reprisal complaint under the PSDPA, an investigation is used to help the
Commissioner in his duty as custodian to decide whether a complaint must be rejected
or referred back to the court for a final decision. In both cases, when the
matter is referred back the court, a hearing takes place, which largely eliminates
concerns of the fairness of the investigation process and the reliability of the
investigator’s findings of fact. The Commissioner is required to prove the
merits of his case by introducing the oral testimony of witnesses who will be submitted
to a cross-examination before a neutral and independent decision-maker. The
applicant is given every opportunity to know the evidence accumulated against
him and to rebut it. This ensures at the same time the fairness and reliability
of results to the extent possible, after being subjected to tests by both
parties.
[56]
The courts have determined that in
exercising his custodial duty, when a commission decides to refer the matter
back to a court, it is “more administrative than judicial in nature”: Halifax
(Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC
10, [2012] 1 S.C.R. 364 at para 26, quoting Losenno v Ontario Human Rights
Commission (2005), 78 OR (3d) 161 (CA) at para 15. Therefore, the principal
condition is that the investigation is more in-depth and that the investigator does
not raise any apprehension of bias.
[57]
Logically, this raises the issue of
whether what seems to be the same investigation process can change its “nature”,
so to speak, by simply providing the alleged wrongdoer with a copy of the investigator’s
report when the key issues centre on credibility and intentional wrongdoing. It
is clear to make the distinction between the administrative or judicial nature
of a decision-making process based on the content of the level of the duty of
fairness that is required and that is due to the individual affected by the
decision. Therefore, it is not the investigation process that determines the
content of the duty of fairness, but the nature of the decision resulting from
it.
[58]
In examining the content of the duty of
fairness, it must be taken into account that the investigation into this matter
has provided the applicant with a minimum of transparency on how the decision was
made. The investigation allowed the collection of evidence and, to the extent
possible, making findings of fact and findings of fact and law on the
wrongfulness of the applicant’s conduct under his mandate, which consists
in determining whether a wrongdoing occurred. The fact that the main purpose of
the Act is to determine whether a wrongdoing occurred cannot, however, subsume
and conceal the clearly negative impact of the decision on the applicant. Moreover,
if the person is not found responsible for the conduct, how could the
corrective measures required by the legislation be undertaken?
[59]
In accordance with the Act, the
investigation was conducted confidentially, apparently one witness at a time
and without the applicant. In this context, an investigator exercises
considerable discretion over the process, for example, in the choice of the questions
to be asked, which ones merit following up and, depending on the case, to what
extent and with whom. There may be problems that occur in noting the evidence,
summarizing the evidence and even presenting it in a report.
[60]
Since the investigations relating to disclosures
are “conducted as informally and expeditiously as possible” (subsection 26(2)),
I cannot imagine that there would be objections to an investigator asking
suggestive questions or relying on hearsay, opinion evidence or character
evidence, which could have an impact on the final report, without referring to
it.
[61]
Moreover, the investigators invariably
face issues of credibility both in terms of contradictory evidence, inconsistency
in a witness’s evidence, answers that are very speculative, which lack realism
or raise concerns with respect to the witness’s memorandum, or other aspects of
the involvement of witnesses in the matter that could affect their answers. It
is a process of assessing evidence and considering personal interest and the
credibility of witnesses with respect to making value judgments about the
probability and accuracy of the situations considered on the basis of reasonable
standards and experience in arriving at findings of reasonable fact that will
be reflected in the investigator’s report. In other words, the investigator’s
duty is to make findings of fact and law, but without the benefit of all the
attributes of a hearing that make the process fair by its transparency and the
most reliable findings by the objection process by cross-examination.
[62]
The investigator’s report in this matter
is filled with issues of credibility because of inconsistencies noted in the evidence
of witnesses questioned by the investigator and the applicant’s answers
regarding his statements. There seems to be a rift among staff where the
applicant worked, to the extent that two of his administrative officers
provided evidence criticizing the investigator’s conduct. As the applicant
pointed out, the situation is complicated by the fact that workforce reduction
was conducted because of budgetary restrictions. Following these complaints, it
seems that 14 members of the staff who had been fired were asked to return to
work. The interest of witnesses in proving that the applicant committed a wrongdoing
has an important place in the investigation.
[63]
Further, a key witness who reported directly
to Mr. Marchand recanted his original testimony that Mr. Marchand was a mentor and
an exemplary manager. The investigator states that in light of the inconsistencies
in this statement with respect to those of other witnesses, [translation] “he decided to go meet [the
individual] informally, so as to establish a relationship of trust that would
allow [the individual] to confide, if he indeed had things to share”.
[64]
The lack of transparency extends to the
investigator’s qualifications, including his training and experience; whether
he was subject to protocols and followed them; whether, for example, the witnesses
were required to verify the accuracy and completeness of their draft statements
by signing them. The only background information provided to the applicant with
respect to the investigation itself is contained in the preliminary and final
reports and in the documents obtained by the investigator from other sources.
[65]
It is precisely because the investigators
exercise such control and discretion outside of the parties’ view in conducting
their investigations that there are few opportunities provided to oppose the evidence
at the time when it is presented that the applicant requires access to the
investigator’s file to defend himself. It was another reason for which the Court
must also know what occurred during the investigation.
Do
the confidentiality provisions of the PSDPA limit the disclosure of documents in
the certified record?
[66]
Paragraph 22(d) and subsection 27(3)
of the Act already referred to imposed duties of procedural fairness and natural
justice to the investigator and the Commissioner when negative consequences are
provided for individuals because of their decisions.
[67]
Other provisions provide the
confidentiality of information obtained in the disclosure process. The initial
short description at the start of the Act emphasizes the purpose of providing
protection to individuals who disclose wrongdoings. Similarly, the preamble reflects
the purpose of the Act to protect public servants who disclose wrongdoings. Therefore,
I find that the protection of public servants who disclose wrongdoings constitutes
one of the main purposes of the legislation provided by Parliament.
[68]
As regards the Commissioner’s responsibilities,
paragraph 22(e) of the Act provides the protection of all
individuals involved in the disclosure process, subject, however, to exceptions
provided by another Act of Parliament or made necessary by the principles of procedural
fairness and natural justice. Similar obligations are imposed on chief
executives under paragraph 11(1)(a), with the exception of the cases
indicated above where the identity of the individual found guilty of wrongdoing
may be disclosed if by giving public access to the information concerning wrongdoing,
the identification of the wrongdoer cannot be avoided.
[69]
Paragraphs 22(f) and 11(1)(b)
impose identical duties to the Commissioner and the chief executive as to the implementation
of procedures ensuring the confidentiality of information gathered relating to disclosures
of wrongdoings. As previously indicated, paragraph 22(f) is raised by
the respondents to the extent that it does not seem to impose qualitative
limits to the duty of maintaining the confidentiality of information. However, I
do not believe that this provision offers greater protection of confidentiality
against revealing information gathered during the disclosure process. Overall, the
provision speaks of the duty to implement procedures to ensure the confidentiality
of information. The question of whether this information must be communicated
to the applicant remains no less subject to the rules of procedural fairness and
natural justice and the requirements of the legislation adopted by Parliament.
[70]
Finally, section 44 of the Act
repeats the general duty of preserving confidentiality of any information obtained
by the Commissioner, except if the communication is done by executing a legal obligation
or is authorized by this Act.
[71]
Therefore, while numerous provisions
exist providing the confidentiality of information gathered by the Commissioner
in the performance of his duties, these provisions also recognize the
exceptions where information should be divulged if necessary under other Acts
of Parliament or requirements of natural justice and procedural fairness.
[72]
The framers of the Act clearly
predicted the tension that would arise between maintaining the confidentiality
of information gathered in exercising these duties and the necessity of disclosing
information when required by the Act or to satisfy the principles of procedural
fairness. It was supposed that the framers recognized the contextual nature of
making decisions when these opposing purposes are present and thereby leave the
courts the task of determining in which circumstances the confidentiality of information
must be maintained, as opposed to the need to disclose for the purposes of
fairness or that required by other laws. The limits of confidentiality clauses
by the [translation] “other acts” include
a reference to the Federal Courts Act and its Regulations, under which
the relevant documents must be disclosed when it is considered necessary for
the conduct of its proceedings.
[73]
Therefore, in short, besides
the considerable emphasis in the legislation on the protection of public
servants who disclose wrongdoings, the provisions of the Act are not of great
use in resolving problems such as those arising in this case, which must be largely
determined on the basis of the normal rules of the content of the duty of
fairness.
Weighing the duty of confidentiality of the Commissioner and his
obligation of fairness
[74]
Generally, for questions
concerning the content of the duty of fairness, the Court is inspired by the Supreme
Court decision in Baker that lists the general contextual tests
governing the question. Although the legislative context of other factors plays
a role, I am convinced that the importance of the decision for the concerned
individual places the bar quite high with respect to the content of the duty to
the applicant. I quote paragraph 25 of Baker to emphasize this
point with respect to its application to the decisions affecting the employment
of an individual, as is the case in this matter:
25 A third factor in determining the nature and extent of the
duty of fairness owed is the importance of the decision to the individual or
individuals affected. The more important the decision is to the lives of those
affected and the greater its impact on that person or those persons, the more
stringent the procedural protections that will be mandated. This was expressed,
for example, by Dickson J. (as he then was) in Kane v. Board of Governors of
the University of British Columbia, [1980] 1 S.C.R. 1105, at p. 1113:
A high standard of justice is required when the right to continue
in one’s profession or employment is at stake. . . . A disciplinary suspension
can have grave and permanent consequences upon a professional career.
As Sedley J. (now Sedley L.J.) stated in R. v. Higher Education
Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All E.R.
651 (Q.B.), at p. 667:
In the modern state the decisions of administrative bodies can
have a more immediate and profound impact on people’s lives than the decisions
of courts, and public law has since Ridge v. Baldwin [1963] 2 All E.R.
66, [1964] A.C. 40 been alive to that fact. While the judicial character of a
function may elevate the practical requirements of fairness above what they
would otherwise be, for example by requiring contentious evidence to be given
and tested orally, what makes it “judicial” in this sense is principally the
nature of the issue it has to determine, not the formal status of the deciding
body.
The importance of a decision to the individuals affected,
therefore, constitutes a significant factor affecting the content of the duty
of procedural fairness.
[75]
Moreover, the issue in this
matter is not so much the content of the duty of fairness as meeting one of the
two recognized fundamental requirements of procedural fairness, i.e. to provide
sufficient information to allow the individual concerned to defend him‑
or herself adequately.
[76]
Given that a non-transparent
investigation process was used in this case, it seems to me that it is even
more important for the purposes of fairness that the applicant receives as much
information as possible to allow him to dispute the findings of credibility on
a procedural basis if required. In light of the principles of natural justice and
procedural fairness, I am not of the view that the provisions of confidentiality
are a very limiting factor in the circumstances, except for the protection of
the identity of the discloser of wrongdoings, in recognition of the importance
that Parliament gives to this goal.
Confidentiality of information from witnesses
[77]
In the circumstances of this
matter, it would seem that the two key areas of concern relate to the production
of information allowing for the identification of public servants disclosing wrongdoing
and the information obtained from them and other witnesses during the
investigation. This includes corollary issues raised in this appeal with
respect to the scope or the limits of the disclosure required to maintain part
of the confidentiality of the information, for example, whether the recordings
of interviews with witnesses are protected, or even, whether confidentiality extends
to the documents describing the investigator’s work, such as his notes and his work
plans of his reports. Each circumstance requires a separate assessment.
[78]
I consider that the protection covering
the information of witnesses is the simplest case to resolve in that the
Commissioner has already recognized the duty to disclose the names of witnesses
and a summary of the evidence on which he relies. The only outstanding issues concern
the disclosure of information collected from witnesses that has not been raised
and the level of detail that must be provided with respect to information obtained
from witnesses and how it was obtained. In my view, none of this information is
protected in the face of the important duties of natural justice imposed on the
Commissioner.
[79]
First, it is difficult for me to contemplate
political reasons that would allow the protection of any information obtained
from or that refer to witnesses. Supposing that they are not the individuals
who disclosed the wrongdoing, or if so, whose identity is not revealed based on
the information provided, there is no duty of fairness or provision of natural
justice to my knowledge that would limit the full communication of information provided
to an investigator in an investigation that may be used in a final decision
with a negative impact on the applicant.
[80]
Because of the duties attached to their positions,
I find that the witnesses are required to co-operate in an investigation into wrongdoing.
In this sense, their participation is involuntary. Therefore, witnesses who are
sought as part of the investigation cannot be put in the same category as the
public servants who have disclosed a wrongdoing, whose identity must not be revealed
according to Parliament, unless it is absolutely necessary.
[81]
The Commissioner already disclosed a summary
of the information provided by the witnesses. The respondents argued that no additional
information should be provided beyond that contained in the certified record. I
cannot believe that they are serious when they suggest that only the documents before
the Commissioner should be produced. In any event, in this case the extent of
the production of information from witnesses is determined largely by the need
that it be disclosed in such a manner as to allow the assessment of what I
believe to be the key issue before the Court with respect to the fairness and
the appropriateness of the investigation. I have no hesitation in requiring the
disclosure of all the investigator’s documents, including his notes and the recordings
of interviews, as well as the information obtained from other witnesses that
was not raised or quoted in the investigator’s reports.
[82]
In my view, the applicant must be authorized
to be fully aware of the allegations made against him; not only must he be aware
of the findings, but also the manner in which these findings were made and the
level of interaction between the investigator and the witnesses. I know that
these concerns were shared by the Prothonotary with respect to allegations of bias
by the investigator, who, in her view, required a more complete disclosure of all
the investigator’s information.
[83]
However, I make a distinction between
the two decisions in terms of justification of the scope of the required
disclosure. Using an investigation to reach the type of findings of fact made
in this case, including those of credibility, is a new form of decision-making
through which a final conclusion is drawn, which results in significant
negative consequences for individuals. Therefore, to a certain extent, I find
that it will be up to the respondents to establish that an investigation may be
used for this purpose, or at least to show that the application of an investigation
process that lacks transparency is not unfair given the significance of the
outcome. This requires an investigation on the investigation process in its entirety,
if only to respond to the concerns regarding the fairness of the process and to
identify the protocols that should apply so as to respect the rules of natural
justice.
[84]
Issues of bias, however, would not
always lead to the same extent of disclosure because the burden of evidence is
on the applicant to show the need for production. At any given time, the
request for detailed documentation may be a fishing expedition, rather than obtaining
evidence in support of credible facts. This was the concern of the respondents in
such a disclosure of the investigator’s file. In my view, this limitation only applies
when the issue relates to the appropriateness and fairness of the investigation
process itself.
Protection
of the identity of public servant(s) who disclose wrongdoings
[85]
The Act is clear in its intention to
grant the broadest protection possible to public servants who disclose wrongdoings
in the public service. These protections are tempered somewhat by the compensatory
requirements to grant to the individuals affected by the Commissioner’s investigations
and decisions the right to fairness and natural justice. However, I consider
that the statutory directions are to encourage the courts by abundance of
caution to protect the identity of individuals who have disclosed wrongdoings during
the interpretation of these provisions.
[86]
The greatest challenge in protecting the
identity of disclosers occurs naturally in the situation faced here where the
Commissioner noted, following an investigation, that the applicant was the wrongdoer.
In my view, the other situations foreseen by the Act, such as when the
Commissioner refers a complaint of reprisals to the Tribunal or decides not to pursue
a disclosure or a complaint of reprisals, do not result in the same seriousness
of the consequences for the person concerned or the same finality of the
decision. The content of the duty of fairness in these situations is not as great
as it is in this case. The applicant argued that once the finding that he
committed a wrongdoing has been made, it is no longer necessary to protect the identity
of the discloser of information. I do not agree. As described, I find that
Parliament’s intention was to protect the identity of these individuals unless
the circumstances of the Act require that it be revealed.
[87]
For example, if the Commissioner had not
relied on the evidence of the individual who made the disclosure, but rather
based his decision on the evidence of other witnesses, normally there would be
no reason to disclose either the name of the discloser, or his testimony. Similarly,
if the report describes the evidence of a number of witnesses with their names,
including the name of the discloser, it is not necessary for this individual to
be identified as the initiator of the proceeding. The Commissioner may also
take other measures to avoid identifying the discloser.
[88]
Nevertheless, in some cases, it is not possible
to protect the identity of the discloser, for example when this individual is
the only witness of the events, or when his identity is revealed by deduction. If
the information provided by the discloser is raised, this information must be disclosed,
without necessarily revealing its source, subject to the Commissioner’s point
of view with respect to the level of fairness appropriate in the circumstances.
Moreover, there are circumstances where the context simply requires revealing
the identity of the person disclosing the wrongdoing. That is the case here, as
it concerns workplace disputes.
The discloser’s
personal interest or ill will in the outcome of the matter as reason to make the
disclosure
[89]
I think that the duty to reveal the identity
of the discloser arises when there
is a fear that personal interest or ill will may be motivating factors
underlying the disclosure, in particular when issues of credibility are present.
The individuals may have various reasons to reveal wrongdoings. I recognize
that the inspiration for the Act stems from the circumstances of the sponsorship scandal. Parliament identified
the need to have legislation that encourages public servants to disclose wrongdoings
in the public service and to make sure that no reprisals occur as a result. Described
as wistleblowing legislation, the image that comes to mind is that of disinterested
disclosure made by concerned public servants who seek to prevent wrongdoings
observed but not reported, somewhat like encouraging a neighbour to report a crime
taking place in the house next door without fear of reprisal.
[90]
That does not seem to be the situation in
this case. There are indications that the disclosers and witnesses are motivated
by ill will toward the applicant, in addition to benefitting personally from a
finding that he had committed wrongdoing against them. When issues of personal
interest or work relationships may be a factor in the complaint, the decision-maker
must determine whether the disclosure of an allegation of wrongdoing is being used
as a sword rather than as a shield. What I mean is situations that occur often
where management attempts to improve productivity or resolve wrongful conduct
and faces a series of complaints, in particular relating to harassment, intimidation
or discrimination. I do not know the specific facts of this case, but it seems
that 14 members of the staff who were declared surplus were asked to return to
work and the applicant was suspended, all because of the disclosure of
wrongdoing. The applicant alleges that this is a factor in the evidence gathered
against him. In this sense, the discloser is, in fact, a complainant against the
individual alleged to have committed the wrongdoing.
[91]
Where there are concerns with respect to
personal interest or ill will toward the guilty party, it becomes an important
issue in a confrontation to establish credibility. Similarly, the concerns are greater
when a group of employees organizes itself to oppose management. The reality is
that individuals may be influenced by others to do something that they would
never have considered without prompting from others. Further, defence generally
begins with the individual who filed the complaint and goes forward from there,
following the timeline of events, in this case, the investigation, where other witnesses
may join the process.
[92]
Given the motivation behind the
disclosure, another factor that, in my view, must be considered when determining
whether it is appropriate to disclose information regarding the discloser is to
know whether the disclosure of wrongdoing could have been resolved by another complaint
process available to the public service where the identity of the complainants and
witnesses cannot be concealed. In this respect, it seems that the Commissioner’s
findings on the serious breaches of management in terms of harassment, intimidation
and inappropriate workforce reduction are all issues subject to the protection of
the other rights of employment by harassment grievances or complaints. In the
case of serious allegations in the employment sector, the person alleged to
have caused the prejudice has the right to know the identity of the complainant
and the entirety of the evidence against him.
[93]
Therefore, in conclusion, to determine
whether it is required for the purposes of fairness to the applicant to disclose
the identity of the discloser(s) of wrongdoings, it is especially a matter of
context. While the Commissioner is required, under the PSDPA, to guarantee the confidentiality
of the identity of the person who made the disclosure, I find that the duties
of procedural fairness and natural justice outweigh these protections and require
the identification of the discloser(s) of the wrongdoings and the details of
the evidence provided by these individuals contained in the investigator’s file.
Suspension of the order
requiring the communication of the documents
[94]
The respondents obtained a suspension of
the Prothonotary’s order so they could have this appeal heard. Recognizing that
the respondents may appeal this decision, the execution of the order to disclose
the documents is suspended awaiting the respondents’ future right of appeal.
ORDER
THE
COURT ORDERS that:
1.
The appeal is dismissed.
2.
Paragraphs 2 to 6 of the Prothonotary’s
order dated November 21, 2013, are set aside.
3.
The communication of the information to
the applicant by the Commissioner is required in accordance with the order
requested by the applicant in the conclusion of his notice of motion dated
August 12, 2013.
4.
The execution of this order is suspended
awaiting the respondents’ future right of appeal.
5.
The applicant will be entitled to the
costs of this appeal and the motion, the taxation of which will be adjourned awaiting
the respondents’ future right of appeal.
“Peter
Annis”
Certified true
translation
Catherine Jones,
Translator
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