Docket: T-1553-13
Citation:
2015 FC 685
Ottawa, Ontario, May 29, 2015
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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CHARBEL
EL-HELOU
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Applicant
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and
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COURTS
ADMINISTRATION SERVICE, LAURENT FRANCOEUR, FRANCINE CÔTÉ, ÉRIC CLOUTIER,
DAVID POWER AND ÉRIC DELAGE
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
Mr. Charbel El-Helou, the Applicant, seeks
judicial review of the Public Sector Integrity Commissioner’s [the
Commissioner] decision of August 23, 2013, dismissing the reprisal complaint he
presented to the Office of the Public Sector Integrity Commissioner [OPIC] on
July 3, 2009, against the Courts Administration Service [CAS] and four of its
employees [collectively referred as the Respondents]. A fifth employee was
added as a Respondent during the investigation.
[2]
Mr. El-Helou alleged having been subject to
reprisals after divulging what he believed to be acts of wrongdoing on the part
of certain employees of CAS.
[3]
It is worthy to note that the decision under
review is the second rendered by the Commissioner concerning Mr. El-Helou’s
complaint. The Commissioner’s first decision, rendered on April 18, 2011 [the
April 18, 2011 decision], dismissed two allegations of reprisal, and referred a
third one [the third allegation] to the Public Servants Disclosure Protection
Tribunal [the Tribunal]. Mr. El-Helou applied for judicial review of the April
18, 2011 decision to dismiss two of the allegations, and his application was
allowed by Madam Justice Anne Mactavish on September 21, 2012 (El-Helou v Canada (Courts Administration Services),
2012 FC 1111 [El-Helou v CAS 2012]).
[4]
Upon concluding that there had been flaws in the
investigation process, Justice Mactavish set aside the April 18, 2011 decision,
and ordered that further investigation be conducted in accordance with her
Reasons.
[5]
Further investigation was conducted, which led,
as we will read below, to the Commissioner’s second decision on August 23, 2013
[the August 23, 2013 decision]. The Commissioner maintained the initial
dismissal of the allegations, but also addressed the third allegation, although
it had already been referred to the Tribunal. The Commissioner found that there
were no reasonable grounds to believe that this third allegation could be
considered a reprisal, but that his authority to dismiss the allegation as
granted by Section 20.5 of the Public Servants Disclosure Protection Act,
SC 2005, c 46 [the Act] was functus officio, and he thus notified the
Tribunal of his new finding.
[6]
Mr. El-Helou now seeks judicial review of the
Commissioner’s August 23, 2013 decision. He submits that the third allegation
should not have been revisited, and that the further investigation was flawed,
resulting in a breach of procedural fairness. He further submits that the
Commissioner erred in his interpretation of the legislative standard of “reasonable grounds for believing” found in subsection
20.4(3) of the Act, thus failing to consider the explanations provided by the
Respondents through the lens of pretexts, and thus failing to look for the
“subtle scent” of reprisal.
II.
Background
A.
General
[7]
Between August 2006 and February 2010, Mr.
El-Helou worked in the Information Technology Services at CAS. In 2009, when
the disclosures of wrongdoing and reprisals at issue in this proceeding
occurred, Mr. El-Helou was Director, Client Services and Infrastructure.
[8]
CAS provides administrative services to the
Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of
Canada and the Tax Court of Canada. It is part of the “public sector”, as
defined by subsection 2(1) of the Act, and its employees are thus “public
servants” within the meaning of the Act.
[9]
The individual Respondents were, at all material
times, employees of CAS: Mr. Laurent Francoeur, as Director General,
Information Technology Services; Ms. Francine Côté, as Deputy Chief
Administrator, Corporate Services; Mr. Éric Cloutier, as Director, Information
Management, Mr. David Power, as Senior Counsel and Mr. Éric Delage, as Director
General, Administrative Facilities and Security Services.
[10]
Mr. El-Helou reported to Mr. Francoeur, except
from May 25 to June 15, 2009, when he reported to Mr. Cloutier while Mr.
Francoeur was away from the office. Mr. Francoeur and Mr. Cloutier in turn both
reported to Mr. Power.
[11]
From September 2008 to September 2009, Mr. Power
was also Senior Officer for CAS, and thus responsible for dealing with
disclosures of wrongdoing made by CAS employees. In addition, from February 23
to May 29, 2009 he was Acting Deputy Chief Administrator, Corporate Services, and
Ms. Francine Côté replaced him in that position on June 1, 2009.
[12]
In or around late January 2009, Mr. Francoeur
requested that Mr. El-Helou “provide copies of e-mails
exchanged between” a member of the judiciary and a designated individual
for a specific time frame. This request was warranted by a police investigation
into threatening emails sent to the member.
[13]
Mr. El-Helou reviewed the emails received during
the identified period of time, and provided the ones he believed to be
relevant. Mr. Francoeur later indicated that the search had to include all the
member’s incoming and outgoing emails for the particular time frame.
[14]
Mr. El-Helou was concerned for the member’s
privacy rights, but nonetheless completed the task. However, on or about March
9, 2009, he created a “support ticket” in the member’s name, which prompted a
notification email informing the member of the scope of the information
request. That prompted an immediate negative reaction from the member; on March
23, 2009, Mr. El-Helou met with the member and the Associate Chief Justice to
discuss this issue, and he was then advised by them not to mention their
discussion.
[15]
On the other hand, Mr. El-Helou’s disclosure to
the member was considered as a possible breach of security by his superiors.
B.
Protected disclosures of wrongdoing
[16]
Mr. El-Helou made two separate protected
disclosures of wrongdoing to Mr. Power.
[17]
The first disclosure was made on March 24, 2009.
On this date, Mr. Power met with Mr. El-Helou in order to discuss his
disclosure of information to the member, but Mr. El-Helou refused to discuss
the matter as per the Associate Chief Justice’s instructions. At the same
meeting, on another topic, Mr. El-Helou informed Mr. Power about his concerns
of possible collusion between certain companies involved in a contract proposal
for CAS and a misuse of public funds. Mr. Power informed Mr. El-Helou he could
not discuss the matter, having already provided legal advice on this particular
contract in his capacity as Senior Counsel, but referred Mr. El-Helou to a
colleague. Mr. Power said he advised Mr. El-Helou that he could make a
disclosure of wrongdoing to the Commissioner, a fact disputed by Mr. El-Helou.
The first disclosure of wrongdoing thus pertains to an allegation of misuse of
public funds in awarding a procurement contract.
[18]
The second disclosure was made on March 25,
2009, when Mr. El-Helou met again with Mr. Power to inform him that the request
he received in late January to provide copies of some of the member of the
judiciary’s emails was inappropriate and that it violated said member’s privacy
rights. The second disclosure of wrongdoing thus pertains to the review and
copy of emails from the member’s account.
[19]
On April 29, 2009, Mr. Francoeur provided Mr.
El-Helou with a positive year-end Written Performance Assessment.
[20]
On May 12, 2009, Mr. El-Helou was informed by
Ms. Aline Duval, Departmental Security Officer, that his security clearance
would be upgraded to the “Top Secret” level for the purposes of his position,
pending the signature of a form. However, Ms. Duval subsequently put Mr.
El-Helou’s security upgrading file on hold, responding to instructions from Mr.
Delage, who had himself received instructions from Mr. Guénette to that effect.
Indeed, a further investigation had to be conducted on the possible breach of
security related to the unauthorized disclosure of information to the member of
the judiciary.
[21]
Mr. El-Helou alleges that Mr. Cloutier sought
negative comments from CAS employees in the period between May 25 to June 15,
2009, while replacing Mr. Francoeur as Acting Director General, Information
Technology Services, and as per Mr. Francoeur’s instructions. On the contrary,
Mr. Cloutier alleges that seven CAS employees approached him, on their own
volition, with concerns about Mr. El-Helou during that time frame.
[22] On June 5, 2009, Ms. Francine Côté informed Mr. El-Helou that he was
temporarily re-assigned to other duties pending an investigation of the
workplace by Quintet, an external investigator, as a result of allegations
concerning his behaviour and management style. Mr. Francoeur was also removed
from his duties pending the completion of this investigation. The purpose of
the investigation was to determine whether Mr. El-Helou had engaged in
harassment, and to examine the state of relations between Mr. El-Helou and Mr.
Francoeur.
C.
Reprisal complaint
[23]
On July 3, 2009, Mr. El-Helou filed a reprisal
complaint to the OPIC, who initiated an investigation into the following three
allegations of reprisal:
(1)
That Mr. Laurent Francoeur asked Mr. Éric
Cloutier to obtain information about Mr. El-Helou’s management style, and
solicit negative comments about him from his subordinates while Mr. Cloutier
was temporarily acting for Mr. Francoeur;
(2)
That Ms. Francine Côté temporarily re-assigned
Mr. El-Helou to other duties and removed his supervisory responsibilities; and
(3)
That Mr. Éric Delage withheld Mr. El-Helou’s Top
Secret security clearance.
[24]
On December 8, 2009, a meeting was held after
Mr. El-Helou advised CAS he was planning to leave the organization. Mr.
El-Helou then asked Mr. Power for references, but Mr. Power responded that he
would wait to read the Quintet report.
[25]
Mr. El-Helou was also provided with an agreement
document prepared by Mr. Power following the December 8, 2009 meeting, a
document he was at liberty to modify. This agreement, never signed by Mr.
El-Helou, sought his acknowledgement that he had breached security by informing
the member of the judiciary about the email investigation.
D.
First investigation and first decision by the
Commissioner
[26]
On April 14, 2011, Ms. Gail Gauvreau, the
previous investigator, completed her investigation report into the three
allegations of reprisal. In her report, she dismissed the first two
allegations of reprisal, but determined that the third allegation, i.e the
withholding of Mr. El- Helou’s Top Secret security clearance, may have been a
reprisal measure. Mr. Power was added as an alleged reprisal perpetrator
following additional allegations made during the course of the investigation.
On April 14, 2011, the final investigation report was completed. It recommended
that the third allegation be assessed by the Tribunal, while the other two be
dismissed.
[27]
On April 18, 2011, the Commissioner rendered his
decision; he found that he had “reasonable grounds to believe
that [Mr. El-Helou’s] Top Secret security clearance was withheld [from him] as
a reprisal measure that adversely affected [his] employment or working
conditions”. On May 16, 2011, the Commissioner filed a Notice of
Application with the Registrar of the Tribunal in regard to this allegation.
Mr. Delage and Mr. Power, as well as CAS, were made parties with respect to
this allegation as their conduct was called into question.
[28]
The Commissioner dismissed the two other
allegations.
E.
Judicial review of the first decision
[29]
On May 19, 2011, Mr. El-Helou filed an
application for judicial review of the April 18, 2011 decision before this
Court.
[30]
On October 20, 2011, the Tribunal suspended its
proceedings pending the Court’s decision on judicial review.
[31]
On September 21, 2012, Justice Mactavish allowed
Mr. El-Helou’s application for judicial review (El-Helou
v CAS 2012). She considered that the process followed by the OPIC
had not been fair and did not address Mr. El-Helou’s other arguments. She found
the process was flawed because:
(1)
The parties were never made aware of the
substance of the evidence that had been obtained by the investigator, nor did
they have any opportunity to respond to the investigator's findings;
(2)
The investigator acted unfairly in making a
clear, unambiguous and unqualified representation as to the process that would
be followed in the investigation and then failing to follow through with her
undertaking with respect to the following situations:
(a)
The investigator failed to provide the parties
with a summary of her findings as well as provide them with an opportunity to
respond to those findings;
(b)
The investigator was aware of Mr. El-Helou's
claim of a threat of a further security investigation by his employer, and
recognized that it could potentially constitute a reprisal measure but failed
to address this issue in her report with the result that this allegation was
never considered by the Commissioner; and
(c)
The investigator failed to interview Mr.
Guénette;
(3)
The investigator failed to interview either of
the two CAS employees identified by Mr. El-Helou in relation to an issue
central to one of his allegations of reprisal.
[32]
Justice Mactavish set aside the April 18, 2011
decision, and ordered that the matter be remitted back to the OPIC for further
investigation in accordance with her Reasons.
[33]
It is important to note that Justice Mactavish
framed Mr. El-Helou’s application as one seeking judicial review of “the decision dismissing two of his allegations of reprisal”
(El-Helou v CAS 2012 at para 2), and that,
while reviewing the procedure followed with regards to the third allegation,
she further pointed out that :
I note that the evidence of the former Chief
Administrator of CAS [Mr. Guénette] was relevant to the issue of the alleged
withholding of Mr. El-Helou's Top Secret security clearance. Given that this
issue has been referred to the Tribunal for a hearing, the prejudice to Mr.
El-Helou in this regard was limited, but was not entirely eliminated in that
Mr. El-Helou does not have the benefit of notes or a transcript of an interview
with the former Chief Administrator as he heads into the Tribunal hearing (El-Helou v CAS 2012 at para 90).
[34]
On November 23, 2012, the Tribunal ordered the
continued suspension of the proceedings pending the completion of further
investigation.
F.
Further investigation and second decision by the
Commissioner
[35]
As per Justice Mactavish’s decision, a further
investigation of Mr. El-Helou’s complaint was conducted. The new investigator,
Ms. Jenny-Lee Harrison, assessed the following five allegations of reprisal:
(1)
That Mr. Laurent Francoeur asked Mr. Éric
Cloutier to solicit employees for the purposes of securing negative information
about Mr. El-Helou;
(2)
That Ms. Francine Côté temporarily re-assigned
Mr. El-Helou to other duties and removed his supervisory responsibilities;
(3)
That Mr. Éric Delage and Mr. David Power
withheld Mr. El-Helou’s Top Secret security clearance starting in May 2009,
until his departure in February 2010;
(4)
That Mr. El-Helou was required to acknowledge
having breached his security obligation and duty of loyalty to his employer in
order to obtain a professional reference from Mr. Power; and
(5)
That Mr. El-Helou was required to acknowledge
having breached his security obligation and duty of loyalty to his employer in
order to prevent a security investigation from occurring.
[36]
On May 16, 2013, after conducting a full review
of the evidence and carrying out all additional necessary investigation, Ms.
Harrison completed her Preliminary Investigation Report. The parties were then
given an opportunity to review and comment on her findings, analysis and
proposed recommendations to the Commissioner. Mr. El-Helou’s comments were
received on June 18, 2013. On or about July 8, 2013, Ms. Harrison submitted her
response to Mr. El-Helou’s comments to the Commissioner for consideration, but
not to the parties. Ms. Harrison completed the Investigation Report on July 29,
2013, and remitted it to the Commissioner.
[37]
In her report, Ms. Harrison’s concludes, in
substance, that there was no nexus between the disclosures and the reprisals,
as the potential repressors did not know about the disclosures.
[38]
Following the Investigation Report, the
Commissioner rendered a new decision detailed in the next section.
III.
Impugned decision
[39]
On August 23, 2013, the Commissioner issued a
new decision. He found that there was insufficient evidence to believe, on
reasonable grounds, that any reprisal measure had been taken against Mr.
El-Helou, and therefore dismissed all allegations that were not previously
referred to the Tribunal, under Section 20.5 of the Act.
[40]
The Commissioner found that Mr. El-Helou’s
disclosures to Mr. Power on March 24 and 25, 2009, constituted protected
disclosures, but that there was insufficient evidence to establish there were
reasonable grounds to believe that any reprisal measure was taken against Mr.
El-Helou because of these disclosures. On the contrary, according to the
Commissioner, “the measures taken by the employer and
the respondents were in response to events that are unrelated to the protected
disclosures, namely, complaints from some of [Mr. El-Helou]’s employees and his
alleged security breach”.
[41]
With regards to the third allegation, the one
that had previously been referred to the Tribunal, the Commissioner found that
on the basis of the analysis in the Investigation Report, there were no
reasonable grounds to believe that Mr. El-Helou had been the subject of
reprisal by the withholding of his Top Secret security clearance.
[42]
Given his previous application to the Tribunal,
the Commissioner questioned his own ability to now dismiss this third
allegation pursuant to Section 20.5 of the Act. He found that his authority was
functus officio in this respect and stated that his duty required him to
adopt the position that is in the public interest, having regard to the nature
of the complaint, and that this duty included informing the Tribunal of new
facts and circumstances, which he did.
IV.
Issues
[43]
This application for judicial review raises the
following issues :
(1)
Did the Commissioner err in law by reconsidering
his decision to refer the third allegation to the Tribunal for adjudication?
(2)
Did the Commissioner arrive at his decision in
breach of the rules of procedural fairness?
(3)
Did the Commissioner err in law by failing to
properly interpret and apply the Act or the relevant principles concerning the
law of reprisals?
V.
Standard of review
[44]
Mr. El-Helou submits that the first issue
attracts a correctness standard since it constitutes a general question of law
that is of central importance to the legal system. The Respondents submit that
the first issue must be assessed under the reasonableness standard. The
Respondents relied on the decisions in Berberi v Canada (Attorney General),
2013 FC 921 and Elsipogtog First Nation Band Council v Peters, 2012 FC
398 to support their views.
[45]
I conclude, as the Federal Court of Appeal
recently ruled, that the correctness standard is to be applied (Canadian
Association of Film Distributors and Exporters v Society for Reproduction
Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc, 2014
FCA 235 at para 58), as it involves the interpretation of the functus
officio principle.
[46]
I agree with the parties that the second issue
attracts a review under the correctness standard as it relates to
considerations of procedural fairness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43). However, the Respondents
point out that deference is owed to the Commissioner in respect to the choices
of procedure especially since under the Act, the decision-maker determines its
own procedure.
[47]
Finally, I agree with the parties that the third
issue must be dealt with under the reasonableness standard. In fact, it is
related to issues of mixed fact and law, and therefore calls for deference (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
VI.
Submissions of the parties
[48]
Mr. El-Helou submits that the April 18, 2011
decision of the Commissioner to file an application to the Tribunal with
regards to the third allegation was a final one and that the Commissioner had
no authority to reconsider it (Chandler v Alberta Association of Architects,
[1989] 2 S.C.R. 848 at para 20). Mr. El-Helou relies on a case from this Court
to support his argument that the Commissioner was functus officio with
respect to his screening role, once he had referred Mr. El-Helou’s third
allegation to the Tribunal (Canadian Museum of Civilization Corporation v
Public Service Alliance of Canada (Local 70396), 2006 FC 703 at para 60 [Canadian
Museum]).
[49]
Mr. El-Helou submits that Justice Mactavish’s
decision pertained to the Commissioner’s decision to dismiss two of the
allegations, i.e. the ones he had not referred to the Tribunal, and that it did
not pertain to the third allegation, the one about the withholding of the Top
Secret security clearance, already referred to the Tribunal.
[50]
Mr. El-Helou further submits that several
violations of procedural fairness occurred in the present case. Despite the
fact that he had the opportunity to comment on the preliminary report, he
submits that he had no meaningful opportunity to provide comments before the
Commissioner rendered his final decision as the outcome had already been
determined in the preliminary report. He also argues he should have been
provided with the opportunity to comment on the final report.
[51]
Moreover, Mr. El-Helou notes that the
investigator prepared a response to his comments on the preliminary report; a
response she submitted to the Commissioner as part of her final report, but did
not disclose to the parties. Mr. El-Helou submits that its content influenced
the Commissioner’s final decision, and that the fact it was not disclosed
deprived him of the opportunity to reply, thus violating the duty of fairness.
[52]
By way of additional submissions, Mr. El-Helou
submits that two new recent decisions of the Federal Court of Appeal [FCA], Agnaou
c Canada (Procureur Général), 2015 CAF 30 [Agnaou # 1] and Agnaou
c Canada (Procureur Général), 2015 CAF 29 [Agnaou # 2] have no
negative impact on his arguments. Mr. El-Helou submits the factual situation in
the Agnaou # 1 decision is distinguishable as the complaint was at a
different stage of the procedure and of a different nature and that it must be
reviewed with caution. He also submits that in Agnaou # 2, the FCA
reaffirmed the similarity between the cases under the Canadian Human Rights
Act, RSC 1985, c H-6 and the cases under this Act. He stresses that in his
case, the investigator (which he refers to as the “Analyst” in his additional
submissions) made findings of fact and law that influenced the Commissioner,
which opened the opportunity for him to provide comments, and that this was not
addressed in the Agnaou decisions.
[53]
Mr. El-Helou also submits that he should have
been provided with transcripts of witness interviews, or sufficiently detailed
notes or summaries, in order to allow him to comment on the witness testimony.
[54]
On the investigation process itself, Mr.
El-Helou submits it lacked thoroughness and neutrality. In fact, Mr. El-Helou
submits that the investigator never took a hard look at the evidence, which,
taken as a whole, could have led, on a circumstantial basis, to an inference of
reprisal. According to Mr. El-Helou, the investigator was biased and made
little or no attempt to assess the Respondents’ credibility while extensively
assessing his credibility. Finally, Mr. El-Helou submits that Ms. Harrison’s
investigation was influenced by misinformation about Mr. El-Helou’s conduct and
credibility shared by the previous investigator.
[55]
Mr. El-Helou submits that the Commissioner
applied the wrong legal test, relying only on direct evidence of reprisal,
while it should have assessed whether there were “reasonable
grounds” to believe a reprisal had been taken against him. Mr. El-Helou
alleges that the Commissioner must look at the evidence to see if there is
“some basis” to support the allegation of
reprisal, or evidence of a “subtle scent” of reprisal and must examine the explanations
thoroughly to ensure they are not pretexts, which it failed to do in this case.
[56]
The Respondents submit that Justice Mactavish’s
decision of September 21, 2012, quashed the Commissioner’s entire April 18,
2011 decision, including the decision to refer the security clearance
withholding allegation to the Tribunal, and that the Tribunal no longer holds
jurisdiction to deal with that allegation. In the alternative, the Respondents
submit that if this Court was to find that Justice Mactavish’s decision did not
expressly quash the referral, the Commissioner had authority to reconsider it,
and to reverse the decision.
[57]
On the procedural fairness issue, the
Respondents submit that the investigator fulfilled her duty of procedural
fairness to an extent even higher than what Mr. El-Helou was entitled to. Since
the investigator’s response to Mr. El-Helou’s comments did not add facts to the
record but rather consisted in “arguments”, this material did not undermine Mr.
El-Helou’s ability to know the substance of the case. On the argument that Mr.
El-Helou should have been provided with the opportunity to comment on the final
report, the Respondents oppose the notion that this approach would not fulfill
the objective under subsection 19.7(2) of the Act that investigations be
carried out as informally and expeditiously as possible.
[58]
The Respondents further submit that Mr.
El-Helou, having been provided with the Investigator’s Report and with an
opportunity to comment on it, was sufficiently aware of the substance of the
case (El-Helou v CAS 2012 at paras 75-76). The Respondents allege that
the conversation between Ms. Harrison and Ms. Gauvreau did not taint the
former’s neutrality. The Respondents point out that Ms. Harrison did not rely
on hearsay of the previous investigator who had found Mr. El-Helou not to be
credible, but that the evidence showed, on the contrary, that Ms. Harrison
spoke directly to the concerned investigator, who denied those allegations.
[59]
In their additional submissions regarding the Agnaou
decisions, the Respondents, in substance, submit that they in fact confirm
their position that Mr. El-Helou had no supplemental right to comment on the
internal response the investigator provided to the Commissioner. The decisions
reinforce their proposition that no promise to this effect was made to him,
thus eliminating any claim to a legitimate expectation, that the action of the
investigator was a legitimate exercise of her responsibilities, and that the
Commissioner can, subject to certain conditions, receive assistance from
internal personnel.
[60]
The Respondents point out that the standard of
proof for the Commissioner to defer the complaint to the Tribunal is set out at
subsection 20.4(3) of the Act, which refers to “reasonable
grounds for believing”. Hence the Commissioner’s gatekeeper function
implies that the standard of proof cannot be interpreted as requiring only
“some basis” for referral to the Tribunal or a “subtle scent”. Moreover, the
Respondents put forth that the question of pretext and alternative explanations
only arise when a nexus between a protected disclosure and alleged reprisals
are established, which is not the case here. Finally, the Respondents argue
that Mr. El-Helou has pointed to no evidence to show that the alleged
repressors were in fact aware of the disclosures.
VII.
Analysis
[61]
For the reasons stated below, this application
for judicial review will be allowed in part.
A.
The Commissioner’s reconsideration of the third
allegation
[62]
When Justice Mactavish ordered that the April 18, 2011 decision of the
Commissioner be set aside, and decided to remit the matter to the OPIC, she
specified that the further investigation had to be done in accordance with her
Reasons. In paragraph 2 of her decision, Justice Mactavish specifically
indicated that “Mr. El-Helou seeks
judicial review of the decision dismissing two of his allegations of reprisal”. Hence,
the judicial review solely dealt with the Commissioner’s decision to dismiss
two of the allegations of reprisal and the Commissioner’s decision with regards
to the third allegation was thus, not on the table. Therefore, Justice
Mactavish’s order to set the “decision”
aside only concerned the “decision to
dismiss the two allegations” and not the decision to refer the
third allegation to the Tribunal.
[63]
As a result, the Commissioner was indeed functus
officio, and failing an order from this Court, had no authority to revisit
this finding [Canadian Museum at para 60]. Since Justice Mactavish did
not allow a re-examination of the decision to refer the third allegation to the
Tribunal, the Commissioner was bound by the April 18, 2011 decision (see Shuchuk
v Alberta (Worker’s Compensation Board), 2012 ABCA 50 at para 32 [Shuchuk]).
[64]
I do not accept the Respondents’ argument that even if this Court finds
that Justice Mactavish did not quash the April 18th, 2011 referral,
it was within the Commissioner’s authority to reconsider the referral and to
reverse its decision in respect of it. There is no indication in the Act that
the OPIC keeps his screening powers alive once it has made a decision to either
dismiss a complaint or refer it to the Tribunal (see Canadian Museum at
para 64). As the Alberta Court of Appeal stated in Shuchuk at para 38, “[a]n applica[nt] should not be left to
believe that obtaining judicial review necessarily puts at hazard even such
earlier findings as the applicant has already obtained and which where
unchallenged at that time”. Since the duty of a Tribunal on
redetermination is to follow the reviewing Court’s directions as provided by
the principle of stare decisis (Canada (Commissioner of Competition)
v Superior Propane Inc, 2003 CAF 53 at para 54; Donald J.M. Brown and The
Honourable John M. Evans, Judicial Review of Administrative Action in Canada,
(Toronto, On : Carswell, 2013, 2014) (loose-leaf revision 3), ch 12 at pp
12-108,12-109) and the Commissioner failed in this respect, the Court must
intervene with regards to this section of his decision.
B.
The alleged breach of procedural fairness
[65]
Investigations conducted by the OPIC have to be
both neutral and thorough (see Slattery v Canada (Human Rights Commission),
[1994] 2 FC 574 at para 49 aff’d. in (1996) 205 NR 383 (FCA); El-Helou v CAS
2012 at para 91). The Supreme Court in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 23-27 [Baker]
set out relevant factors to determine the duty of procedural fairness’ scope.
These factors include the statutory scheme and the terms of the statute.
[66]
The Act states, at subsection 22(d), that the
Commissioner has a duty to ensure respect of the right to procedural fairness
and natural justice of all persons involved in investigations. Moreover,
subsection 19.7(2) provides that investigations are to be conducted as
informally and as expeditiously as possible. In addition, as per subsection
22(f), the Commissioner is to establish its own procedure in processing
disclosures since the Act does not provide specific procedural requirements. In
Baker at para 27, the Supreme Court recognized the Board as the master
of its own procedure, and determined it is therefore entitled to deference
towards his procedural choices as “the statute leaves
to the decision-maker the ability to choose its own procedures”.
[67]
In her decision, Justice Mactavish pointed to
issues relating to procedural fairness, and particularly to failures by the
former investigator to follow through on her undertakings. The Commissioner
addressed those issues in this case. In fact, Mr. El-Helou was provided with a
preliminary report and he was given an opportunity to comment this report.
Moreover, Ms. Harrison assessed all the allegations submitted by Mr. El-Helou,
and conducted an interview with Mr. Guénette.
[68]
Mr. El-Helou argues that not providing him with
the opportunity to comment on Ms. Harrison’s response to his own comments to
her preliminary investigation report constituted a breach of procedural
fairness, since it influenced the Commissioner’s decision and was prejudicial
to him and to his counsel. However, I am satisfied that Ms. Harrison’s response
did not add facts to the record but rather addressed Mr. El-Helou’s comments.
The Supreme Court has held that no new evidence can be presented to Board
members in the absence of the parties, and that a breach of the audi alteram
partem rule will only occur where “a
new policy or a new argument is proposed at a full board meeting and a decision
is rendered on the basis of this policy or argument without giving the parties
an opportunity to respond” (International Woodworkers of
America, Local 2-69 v Consolidated-Bathurst Packaging Ltd, [1990] 1 S.C.R. 282
at paras 87, 91, 94 [International Woodworkers]).
[69]
In the present case, no new argument or facts were presented to the Commissioner
by Ms. Harrison’s response. Furthermore, “the criteria for independence are not absence of influence but
rather the freedom to decide according to one's own conscience and opinions”
(International Woodworkers at para 84). Ms. Harrison’s response did not
bind the Commissioner. Hence, no breach of procedural fairness occurred in this
matter and Mr. El-Helou and his counsel suffered no prejudice. I side with the
Respondents in that the Agnaou decisions support this conclusion.
[70]
I agree with the Respondents that the
opportunity given to Mr. El-Helou to comment on the preliminary report was
sufficient for him to be aware of the substance of the case (Radulesco v
Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407; El-Helou v
CAS 2012 at para 73).
[71]
Mr. El-Helou argues that he was entitled to a
full summary of the evidence obtained in the investigation. However, this is a
higher standard than required by the case law. In fact, the Federal Court of
Appeal in Paul v Canadian Broadcasting Corp, 2001 FCA 93 at para 43,
stated that the parties will be informed of the substance of the evidence
obtained by the investigator where the investigation report is disclosed to
them and where they have an opportunity to make representations in response to
the report. This is exactly what Mr. El-Helou was provided with. I do not
subscribe to his arguments that he was denied a meaningful opportunity to make
representations before the final report was issued, as the preliminary report
bore the hallmarks of a final report.
[72]
On the neutrality and the thoroughness of the
Commissioner’s decision, I agree with the Respondents that the Commissioner
made no error. As pointed out by both parties, Ms. Harrison directly spoke to
one of the previous investigator, Ms. Scichilone, who confirmed that Mr.
El-Helou had not changed his story to her. Therefore, Ms. Harrison did not rely
on hearsay and no misinformation occurred.
[73]
It is also noteworthy that the Commissioner
indicates in his August 23, 2013 decision that he carefully considered the
Respondents’ evidence and explanations “in order to
gauge whether their explanations constitute mere pretext in response to the
allegations of reprisal”. Upon review of the investigation report, I
find that Ms. Harrison made a thorough assessment of the evidence. Therefore, I
find that the investigation was thorough and neutral, and showed no breach of
procedural fairness.
C.
The Commissioner’s application of the Act
[74]
In considering whether an application to the
Tribunal is warranted, the Commissioner must examine whether there are “reasonable grounds for believing that a reprisal was taken
against the complainant” (subsection 20.4(3) of the Act). Mr. El-Helou
submits that the Commissioner applied a higher threshold than required by
assessing whether a “reprisal has taken place”.
[75]
The Court finds the Commissioner applied the
proper test. He namely stated that his “task is not to
determine whether or not the reprisals are proven, but rather to screen and
investigate the complaint and to apply the factors stated at subsection 20.4(3)
of the Act in order to determine whether an application to the Tribunal is
warranted”. The Commissioner found that the measures in play were not
reprisal measures as provided in the Act.
[76]
The Commissioner concluded that the evidence
failed to establish, on reasonable grounds, that the reprisal measures Mr.
El-Helou complained about were related to the protected disclosures he made to
Mr. Power. The Commissioner found that Mr. Guénette, Ms. Côté, Mr. Francoeur,
Mr. Cloutier and Mr. Delage were not aware of Mr. El-Helou’s protected
disclosures to Mr. Power, that there was therefore no nexus between the
protected disclosures and the measures complained of, and consequently, that no
reprisals occurred.
[77]
As there was no evidence to establish such a
nexus, and as the investigation was properly conducted, the Commissioner made
no reviewable error in dismissing allegations 1, 2, 4 and 5.
VIII.
Conclusion
[78]
For the aforementioned reasons, this application
for judicial review is allowed in part.
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