Docket: T-2368-14
Citation:
2016 FC 886
Ottawa, Ontario, July 29, 2016
PRESENT: The
Honourable Madam Justice Elliott
BETWEEN:
|
ATTORNEY
GENERAL OF CANADA
|
Applicant
|
and
|
PUBLIC SECTOR
INTEGRITY
COMMISSIONER OF
CANADA
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
A.
The Legislation at Issue
[1]
In 2007, Parliament passed the Public
Servants Disclosure Protection Act, SC 2005, c 46 [PSDPA], commonly
known as “whistleblower” legislation. The PSDPA
established the Office of the Public Sector Integrity Commissioner to receive
disclosures of wrongdoings in the public sector.
[2]
The Commissioner has a duty to review
disclosures. Where the Commissioner determines there are sufficient grounds for
further action, there is a duty to conduct an investigation of such
disclosures. The Commissioner has a duty to submit a report to Parliament after
making a finding of wrongdoing. Written comments from the chief executive of
the investigated organization are included in the report.
[3]
This judicial review requires, for the first
time, an examination of subsection 23(1) of the Act. It restricts the ability
of the Commissioner to deal with a disclosure “if a
person or body acting under another Act of Parliament is dealing with the
subject-matter of the disclosure”.
[4]
The idiom “the devil is
in the details” applies to this dispute. The parties are each well‑intentioned.
The facts are largely undisputed but, each party takes a very different
approach to what the facts mean and how to apply them to the legislation.
B.
The Finding of Wrongdoing
[5]
In November 2014, after investigating a
disclosure involving the Ottawa Air Section [OAS] of the RCMP Air Services
Branch [ASB], the Commissioner made a finding of wrongdoing and, as he is
required to do in such an instance, he reported the details to Parliament. He
found that false entries had been made by pilots in their Aircraft Journey
Logbooks. The Commissioner found that with incorrect information in the
logbooks, the RCMP could not ensure the aircraft were flown within weight and
balance limits. He also found after reviewing several logbooks that aircraft
had been flown overweight in 2012.
[6]
The Commissioner concluded that paragraph
602.07(a) of Canadian Aviation Regulations, SOR/96-433, had been
contravened because aircraft are required to be operated within the limitations
in the flight manual. His report emphasized he was satisfied with the RCMP’s
response, they cooperated fully with the investigation, and the contraventions
did not create dangers to the life, health or safety of persons. But, he noted,
regulations were contravened, and that is defined in the PSDPA as a
wrongdoing. [See PSDPA ss. 8(a) in the attached Annex.]
C.
The Sole Issue Raised by the RCMP is
Jurisdiction
[7]
The RCMP says the Commissioner had no authority
to investigate the disclosure because Transport Canada [TC] was already dealing
with the subject-matter of the disclosure under the Aeronautics Act, RSC
1985, c A-2. The RCMP says therefore a plain reading of subsection 23(1) shows the
Commissioner had no authority or jurisdiction to investigate the disclosure.
[8]
The Commissioner says this is not a question of
whether he had jurisdiction to investigate. It is a normal question of
statutory interpretation by the Commissioner of the legislation under which he
operates ─ his “home statute” ─ and
he is entitled to deference in his interpretation. He interpreted both subsections
23(1) and 24(1) and says his interpretations in each case were reasonable given
the nature of the TC activity was an “advisory
assessment” that was in the nature of an audit.
D.
The Standard of Review
[9]
The parties agree the standard of review for the
Commissioner’s interpretation of subsection 24(1) is reasonableness, as previously
determined in other cases. However, subsection 23(1) has not been previously
interpreted and the parties do not agree on that standard of review.
[10]
In the reasons that follow, I have determined the
presumption of reasonableness review when a tribunal is interpreting its home
statute, established in Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61, [Alberta Teachers’] has not
been rebutted. The standard of review of the interpretation of subsection 23(1)
by the Commissioner is reasonableness.
E.
The Commissioner Raises Two Preliminary Issues
[11]
The Commissioner raises two preliminary issues:
(1) whether the RCMP has the right to seek judicial review of the Case Report
since the findings are non-binding recommendations; (2) whether any weight
should be given to an affidavit filed by the RCMP as part of this proceeding.
[12]
For the reasons that follow I have determined
the RCMP may seek judicial review.
[13]
I have also determined the affidavit will not be
considered with respect to any matters that were not before the Commissioner
nor any legal conclusions or analysis it contains.
F.
Order Sought by the RCMP
[14]
The Notice of Application by the RCMP seeks
judicial review of the finding made by the Commissioner on October 14, 2014, as
amended on October 31, 2014 [the “Amended Decision”] in respect of file No.
PSIC 2012-D- 0328. Attached to the Amended Decision was the Case Report that
subsequently was tabled in Parliament. The RCMP seeks an order quashing or
setting aside the Amended Decision.
[15]
Although originally there were four different
grounds of review alleged by the RCMP, at the hearing of this matter the only
ground pursued was that the Commissioner acted without jurisdiction either
under subsection 23(1), when he investigated the disclosure, or under subsection
24(1), when he failed to exercise his discretion not to investigate the
disclosure.
[16]
For the reasons that follow, based on the
specific facts of this case (the “details”), I have determined that the
Commissioner’s decision that subsection 23(1) did not apply to prevent his
investigation was reasonable. I find his interpretation of subsection 24(1) was
reasonable. I also find section 23(1) may not have applied at all given the
timing and sequence of critical events.
[17]
Relevant excerpts of the legislation referred to
in this judgment are set out in the attached Annex.
II.
Background
A.
The Attorney General as Applicant
[18]
The Attorney General, on behalf of the RCMP, has
brought this application for judicial review. The Attorney General confirmed at
the hearing that they were not appearing as of right as a public interest
litigant. They appear solely on behalf of the RCMP. To avoid any confusion,
these reasons for judgment will refer to the RCMP as if they were the
Applicant.
B.
Significant Activities of the Commissioner’s
Office and TC
[19]
In considering whether the Commissioner
reasonably interpreted subsection 23(1) or properly exercised his discretion
under subsection 24(1), it is useful to review the chronology of significant
activities of TC and the Commissioner in relation to the OAS. The chronology of
events (“the details”) setting out “who was doing what
and when” is important when looking at the legislation to review the reasonableness
of the Commissioner’s interpretations.
(1)
Activities in 2013
[20]
On January 7, 2013, the Commissioner received a
disclosure of eight potential wrongdoings from a RCMP employee. They spanned
the period from 2007/08 to then current date. A period of analysis ensued at
the Commissioner’s office including review of various documents submitted by
the discloser.
[21]
In August 2013, the RCMP asked TC to review the
operations of the ASB. In response, TC prepared an Oversight Plan outlining that
they would assess where current regulations were being met, provide observations
where regulatory gaps existed, and suggest best practices with a view to new
aviation regulations about to come into force. The investigators never saw this
document until the present proceedings.
[22]
In October and November 2013, TC conducted the Oversight
activities at RCMP Air Services Branch HQ and the Air Sections in Ottawa,
London, Montreal, and Vancouver.
[23]
On November 6, 2013, the analyst in the
Commissioner’s office who reviewed the disclosure prepared a Case Analysis
recommending an investigation and not pursuing three of the allegations.
[24]
On November 18, 2013, the Commissioner informed
the RCMP by letter that he was going to investigate allegations of wrongdoing
involving an employee of the OAS and the OAS itself.
[25]
On December 2, 2013, the investigators made their
first contact with TC. The investigators were told TC would be issuing a report
in January 2014.
(2)
Activities in 2014
[26]
On January 15, 2014, TC prepared their report to
the RCMP entitled “Private Operator – Advisory
Assessment” [Advisory Assessment]. TC made observations and
recommendations including that their sampling of Journey Logs did not reveal any
non-compliance. However, they were shown other Journey Logs that suggested two
kinds of aircraft had been flown in overweight condition. These documents form
the basis for the Commissioner’s subsequent finding. The RCMP agreed to draft
Corrective Action Plans [CAPs] to implement the recommendations.
[27]
On January 20, 2014, TC sent the Advisory
Assessment to the investigators. On January 21, 2014, TC began follow-up and
monitoring of the development by the RCMP of CAPs.
[28]
On March 7, 2014, the investigators prepared the
Preliminary Investigation Report [PIR]. They concluded a wrongdoing was
committed under paragraph 8(a) of the PSDPA by personnel at the OAS “making false entries on AJLs and flying overweight for
years”. As a result of the PIR the Commissioner determined the four
allegations related to flying aircraft included several different pilots, not
just one. AJLs received from TC on January 20, 2014 were used to make the
finding.
[29]
On March 10, 2014, the Commissioner delivered
the PIR to the RCMP and advised them that the OAS, as a whole, would be named
for those alleged wrongdoings rather than the individual employee.
[30]
On March 14, 2014, the RCMP completed writing
the CAP for document compliance to address the issue of the AJLs containing
incorrect information. Expected completion date of the work was April 30, 2014.
[31]
On May 22, 2014, the RCMP responded to the March
10, 2014 PIR. They stated, for the first time, that subsections 23(1) and 24(1)
of the PSDPA applied and the Commissioner did not have jurisdiction
because “TC has been dealing with the OAS to address
any deficiencies” and “OAS is working with TC
Civil Aviation Safety Inspectors to address compliance by way of Corrective
Actions Plans”.
[32]
On July 9, 2014, a revised PIR was sent to the
RCMP as result of additional information provided by the RCMP.
[33]
On July 30, 2014, the RCMP responded to the
revised PIR renewing its objection to the jurisdiction of the Commissioner’s
office.
[34]
On September 3, 2014, an investigator made
a file note of a conversation with a TC employee to the effect that “[employee] was very clear that TC did not “go in under
regulation assessment mode”” and “employee at
the end also reiterated that “we are not working under any regs or Act for
these CAPs - it is purely voluntary””.
[35]
On October 6, 2014, after internal review of the
investigator’s amended report, the Commissioner accepted the recommendation
that a finding of wrongdoing be made regarding one allegation and not the other
four allegations.
[36]
On October 14, 2014, the Commissioner delivered to
the RCMP a draft of the Case Report of Wrongdoing, which was to be tabled in
Parliament by December 5, 2014. He requested any comments for inclusion in the
report be made no later than October 29, 2014.
[37]
On October 27, 2014, the RCMP wrote to the Commissioner
requesting the investigation be re-opened, renewing the jurisdictional
challenge, and raising a question of procedural fairness. The RCMP’s response
to the Commissioner’s recommendations was enclosed.
[38]
On October 31, 2014, the Commissioner responded to
the RCMP and enclosed the draft Case Report to be tabled during the week of
November 17, 2014. He requested any final comments by November 6, 2014. He also
enclosed a draft news release to be issued when the report was to be tabled.
[39]
On November 6, 2014, the RCMP delivered the
official response to the recommendations for inclusion in the report.
[40]
On November 10, 2014, the Commissioner wrote to
the RCMP to address certain matters not relevant to this proceeding and to
reiterate why he believed subsection 23(1) did not apply as well as why he would
not exercise his discretion under subsection 24(1) to discontinue the
investigation.
[41]
On November 14, 2014, the RCMP issued the Notice
of Application in this matter.
[42]
The Commissioner’s Case Report was submitted to
Parliament on December 2, 2014.
III.
The Two Preliminary Issues Raised by the
Commissioner
A.
Should the Affidavit filed by the RCMP be given
any Weight?
(1)
Positions of the Parties
[43]
The RCMP filed an affidavit from Sean Flatt,
sworn on January 19, 2015. Mr. Flatt was the team leader for the TC Advisory
Assessment. The RCMP says the affidavit has been tendered on the issue of the
jurisdiction of the Commissioner. The RCMP relies generally on “cases decided under rule 306” of the Federal
Courts Rules, SOR/98-106, [the “Rules”] to say that as subsection 23(1)
raises a matter of jurisdiction between two tribunals they have the absolute
right to submit the affidavit.
[44]
The RCMP submitted at the hearing that the
affidavit was tendered for two purposes, both going to the jurisdiction of TC
when conducting the assessment. One was to show Mr. Flatt was not acting personally
but rather as an officer of Transport Canada. The other was to show the breadth
of duties set out in the Aeronautics Act and that, given those duties,
TC had a broad scope and a number of ways in which they can engage with an
entity.
[45]
The Commissioner says I should give no weight to
the affidavit because it contains information he did not have when he made his
finding of wrongdoing. Noting the assertions about the capacity in which TC was
conducting its Advisory Assessment and the lack of ability it had to enforce
compliance with the CAPs, the Commissioner submitted at the hearing that the
affidavit is simply an attempt to “bootstrap”
what TC was doing by re-characterizing the voluntary, consultative process into
an exercise of statutory power.
(2)
Analysis and Conclusion
[46]
The cases under rule 306 do not assist the
RCMP’s position. In Association of Universities and Colleges of Canada v
Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, [Access
Copyright] the Court of Appeal recognized three exceptions to the general
rule that the evidentiary record on review should be the same as that before
the administrative decision-maker. The exceptions are: where the affidavit
provides general background to assist in understanding the issues; where it is
necessary to bring procedural defects to the attention of the Court because
they cannot be found in the evidentiary record; to highlight the complete
absence of evidence before the decision-maker.
[47]
During the course of the Commissioner’s
investigation, the RCMP raised the question of jurisdiction under subsection
23(1). Anything not conveyed by the RCMP in the May 22 and July 30 letters
could have been provided either at that time or before the Case Report was
tabled. The affidavit cannot now improve upon the position of the RCMP as
originally put to the Commissioner. As stated by Mr. Justice LeBlanc in Henri
v Canada (Attorney General), 2014 FC 1141 at paragraph 21, judicial review does
not “allow for an improvement of the factual matrix of
the record, since that would be changing the fundamental nature of this
proceeding”.
[48]
With respect to the stated purpose of showing that
Mr. Flatt was acting as an officer of TC, the affidavit was unnecessary as
there was no allegation to the contrary. With respect to the purpose of
outlining the broad duties and powers of TC, the RCMP letters of May 22 and
July 30, 2014 cover those topics. The legislation itself sufficiently shows the
duties and powers of the Minister. The affidavit is not necessary for that
purpose. In my view, the affidavit does not fall into any of the three
exceptions in Access Copyright.
[49]
I will give no weight to any portions of the
affidavit filed that contain information not originally given to the
Commissioner. Nor will any legal arguments or conclusions of law in the
affidavit be given any weight as the person who made the affidavit was not
qualified to give such opinions. Where the affidavit recasts arguments made to
the Commissioner by the RCMP, I will refer to the original arguments. Where the
affidavit simply organizes and collects information given to the Commissioner
at the time, I may refer to it as it is not new evidence.
B.
Does the RCMP Have the Right to Seek Judicial
Review?
[50]
Applications for judicial review are governed by
sections 18 and 18.1 of the Federal Courts Act [FCA]. Read together
these sections establish the grounds for review, the relief available, powers
of the Court on review, and who can bring an application for review.
[51]
Under subsection 18.1(3), the Court has
jurisdiction to review a “decision, order, act or
proceeding” of a “federal board, commission or
other tribunal”. There is no dispute that the Commissioner was operating
as a federal board, commission or other tribunal when he made his finding and
tabled the Case Report in Parliament. The dispute relates to whether the RCMP
was “directly affected by the matter in respect of
which relief is sought” particularly given the non-binding nature of the
recommendations in the Case Report. Stated another way, is this matter
justiciable?
[52]
The term “directly
affected” has been extensively interpreted in the jurisprudence. In Air
Canada v Toronto Port Authority et al, 2011 FCA 347 at paragraphs 24 and 29, [Toronto
Port Authority] Mr. Justice Stratas summarizes the considerations
applicable to whether a matter is reviewable. A reviewable “matter” is more than a decision, it is very broad and
includes something “in respect of which a remedy may be
available” under section 18 of the FCA. It also includes review of “administrative action”. What is not reviewable is a
matter that “fails to affect legal rights, impose legal
obligations, or cause prejudicial effects”.
(1)
Positions of the Parties
[53]
In keeping with Toronto Port Authority, the
focus of the parties is whether the finding made by the Commissioner caused the
RCMP prejudicial effects. There was no argument made that the finding in the Case
Report affected legal rights or imposed legal obligations. Indeed, section 26
of the PSDPA makes it clear that investigations are conducted informally
and the purpose of an investigation is to bring wrongdoings to the attention of
the Chief Executive and make recommendations about corrective measures. There
is no provision in the PSDPA that requires a Chief Executive to follow
any recommendations.
[54]
The RCMP says that as it is Canada’s national
police force the finding of wrongdoing by the OAS is very important to both the
members of the RCMP and the OAS members. The reputation of the RCMP is affected
by such finding. The very public aspect of the Case Report being tabled in
Parliament is also an important factor. The RCMP relies on the decision in Morneault
v Canada (Attorney General), [2001] 1 FCR 30 (FCA), [Morneault] to
say that when there is an impact on reputation even a non-binding a matter is
reviewable under subsection 18.1(1).
[55]
The Commissioner counters that before the Case
Report was sent to Parliament the RCMP sought, but was denied, an injunction
prohibiting such submission. At that time, Mr. Justice Hughes of this
Court found any damage to the reputation of the RCMP was purely speculative. As
of the date of the hearing, no evidence of damage to their reputation has been
submitted by the RCMP. The Commissioner says that, in any event, the RCMP has
admitted regulations were contravened and accepted the recommendations of the
Commissioner made in the Case Report. He too relies upon Morneault,
where at paragraph 45 the Court of Appeal said:
[45] If the findings in issue are supported
by some evidence, the respondent could not really complain that the findings
may have harmed his reputation. . . .
[56]
Finally, the Commissioner says only the
discloser is given status in the PSDPA as being directly affected. Neither
the wrongdoer nor the CEO is given such status. The only remedy provided in the
PSDPA is that the CEO of the RCMP may make a response in the Case Report
if he disagrees with the Commissioner, as was done here.
(2)
Analysis and Conclusion
[57]
The balance of paragraph 45 in Morneault,
cited in part by the Commissioner, contains a critical finding by the Court of
Appeal. Although the report in that case was also a non-binding opinion and not
strictly a decision or order, the Court of Appeal determined that serious harm
might be caused to Col. Morneault’s reputation by findings that lacked support
in the record. The court’s review was determined to be a necessary part of
being able to ensure that natural justice was done and no unjustified harm was
caused to Col. Morneault’s reputation.
[58]
The only part of the finding with which the RCMP
agrees is that making incorrect entries in the AJLs contravene the regulations.
The record in this matter shows such contraventions are strict liability
offences that require no degree of intention or negligence on the part of the
perpetrator. The record also shows that TC, operating under a different
legislative scheme, did not view the regulatory contraventions as seriously as
the Commissioner. An August 18, 2014 email from TC to the investigators
concluded with the statement “[d]welling on a punitive
response to past non-compliance issues serves no further purpose other than to
disrupt ongoing positive efforts.”
[59]
The RCMP response in the Case Report took issue
with the Commissioner’s use of the word “false” to
characterize the AJL entries because it implied a deliberate deception or
malfeasance. They also took issue with whether the AJLs alone could show an
aircraft was flown overweight given various other factors that they list and
say affects that determination. They agreed with the technical non-compliance
but not the conclusion of aircraft being flown overweight.
[60]
I am satisfied the RCMP have not accepted the
finding in the Case Report to the extent submitted by the Commissioner. In this
case, the degree of “acceptance” is not
sufficient in and of itself to avoid judicial review.
[61]
The RCMP seeks relief under paragraph 18.1(4)(a)
of the FCA alleging the Commissioner acted without jurisdiction. In Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [Khosa] Mr. Justice
Binnie at paragraph 41 found that subsection 18.1(4) “enable[s]
but do[es] not require judicial intervention.” In other words, I may
exercise my discretion in determining whether to hear this application for
judicial review.
[62]
In the circumstances of this case, given the
high profile of the RCMP as Canada’s national police force, the involvement of
another regulatory authority, the lack of review provisions in the PSDPA,
and the absence of jurisprudence under subsection 23(1) as well as the basis of
the RCMP’s arguments in this matter, I find it is appropriate to exercise my
discretion and allow the judicial review to proceed in order to determine
whether the Commissioner’s interpretation of subsections 23(1) and 24(1) of the
PSDPA was reasonable.
IV.
Standard of Review of the Interpretation of ss
23(1) and 24(1) by the Commissioner
[63]
The parties do not agree upon the standard of
review. As previously stated, I have determined reasonableness is the standard
of review for the Commissioner’s interpretations of the PSDPA. The
detailed explanation for that decision follows.
A.
Standard of Review of the Interpretation of Subsection
23(1)
(1)
Positions of the Parties
[64]
The different perspectives of the RCMP and the
Commissioner raise the question of the appropriate standard of review for the
Commissioner’s interpretation of subsection 23(1). The RCMP says the standard
is correctness. The Commissioner says the standard is reasonableness.
[65]
The RCMP submits the issue of whether subsection
23(1) prohibited the Commissioner from investigating in light of the involvement
of TC raises a true question of jurisdiction or vires, therefore
attracting a correctness standard of review. In support they cite an extract
from Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 59 [Dunsmuir]
to the effect that true jurisdiction questions involve the determination by a
tribunal of whether they had “the authority to decide a
matter” considering the statutory power given to the tribunal.
[66]
In oral argument, the RCMP stated that it is not
a matter of competing jurisdiction by two tribunals but rather a question of
when each of them can exercise their authority. They submit however that the
standard is still correctness but, should I find it to be reasonableness then,
in any event, there is only one reasonable interpretation of the legislation
and it is not the one applied by the Commissioner.
[67]
The RCMP also referred to Canadian Union of
Public Employees, Local 2434 v Port Hawkesbury (Town), 2011 NSCA 28, [Port
Hawkesbury] in which the Nova Scotia Court of Appeal discussed the
principles of jurisdictional review they drew from Dunsmuir. In that
case, the court determined the standard of review for the underlying decision
by the Occupational Health and Safety Panel was correctness even in the face of
a privative clause in the legislation.
[68]
The Commissioner says that there is no question
of jurisdiction; it was simply a matter of determining whether TC was dealing
with the subject matter under an Act of Parliament. To make that determination
required considering a question of mixed fact and law in deciding whether
subsection 23(1) applied to prevent him from investigating the disclosures. The
Commissioner states that this is a question of mixed fact and law reviewable on
the standard of reasonableness.
[69]
The Commissioner relies upon Alberta
Teachers’, and McLean v British Columbia (Securities Commission), 2013
SCC 67, [McLean] to say that because the Commissioner is interpreting
his “home” statute there is a presumption of
deference and that entails a standard of review of reasonableness.
(2)
Analysis and Conclusion
[70]
I note that Port Hawkesbury, upon which
the RCMP relies, was argued and decided prior to the release of Alberta
Teachers’ so it did not consider whether the presumption of reasonableness
had been rebutted because no such presumption existed at that time.
[71]
The interpretation by the Commissioner of subsection
23(1) required consideration of whether the activities undertaken by TC vis-à-vis
the RCMP fell within subsection 23(1). To make that determination requires an
application of the facts (what was undertaken by TC) to the law set out in subsection
23(1). A question of mixed fact and law attracts the standard of review of
reasonableness, provided there is no extricable legal principle or error of law,
see Khosa at paragraph 89 and Imperial Manufacturing Group Inc v Decor Grates Incorporated,
2015 FCA 100 at paragraph 19.
[72]
In arriving at this conclusion I am mindful of
the admonition in Dunsmuir, also found at paragraph 59, that “reviewing judges must not brand as jurisdictional issues
that are doubtfully so” as well as the observation made by Madam Justice
Abella in Council of Canadians with Disabilities v VIA Rail Canada Inc,
2007 SCC 15 at paragraph 89, that:
If every provision of a tribunal’s enabling
legislation were treated as if it had jurisdictional consequences that
permitted a court to substitute its own view of the correct interpretation, a
tribunal’s role would be effectively reduced to fact-finding.
[73]
I find the presumption in Alberta Teachers’
has not been rebutted by the RCMP. The standard of review is reasonableness with
respect to the Commissioner’s interpretation of subsection 23(1) that he was not
prohibited from investigating the disclosure.
B.
Standard of Review of the Interpretation of Subsection
24(1)
[74]
With respect to the Commissioner’s
interpretation of section 24 of the PSDPA, the standard of review has
already been determined by the Court of Appeal in Agnaou v Canada (Attorney
General), 2015 FCA 30 at paragraph 35, [Agnaou #1] to be
reasonableness.
[75]
The RCMP does not dispute and I agree that
reasonableness is the appropriate standard of review of the Commissioner’s
application of subsection 24(1).
V.
Was the Interpretation of subsection 23(1)
Reasonable?
[76]
The interpretation of subsection 23(1) of the PSDPA
is at the heart of the differences between the parties. The RCMP believes it is
to be broadly interpreted and that in doing so I will find the TC review and Advisory
Assessment was sufficient to oust the jurisdiction of the Commissioner. The
Commissioner says the activities of TC do not meet the test for either “dealing with” or “subject
matter” and, in any event, TC was not “acting
under another Act of Parliament” as required by the subsection 23(1).
A.
General Principles of Statutory Interpretation
[77]
The parties have dissected the various words
found in subsection 23(1) and in particular the discrete phrases “dealing with”, “subject
matter”, and “under another Act of Parliament”.
I will turn to those submissions shortly. First it is important to note the
starting point for interpreting legislation, established by the Supreme Court
of Canada in Rizzo &
Rizzo Shoes Ltd (Re), [1998] 1
SCR 27 at paragraph 21, [Rizzo],
is that the words being considered are to be “read
in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act”. This means
“[a] court must consider the total context of the
provision to be interpreted “no matter how plain the disposition may seem upon
initial reading””, see Canada (Attorney General) v Stanford, 2014
FCA 234 at paragraph 44.
(1)
The Scheme and Object of the PSDPA
[78]
The PSDPA is whistleblower legislation
designed to enable federal government employees to bring to light wrongdoings in
the public sector without fear of reprisal. The provisions in the PSDPA
purport to “achieve an appropriate balance”
between the two important principles of loyalty to one’s employer and the right
to freedom of expression.
[79]
The scheme of the PSDPA underscores the
importance of an ethical public sector. Mr. Justice
Diner in Swarath v Canada
(Attorney General), 2015
FC 963 at paragraph 1, found the PSDPA is “designed to ensure that Canadians are protected by a lawful,
transparent and uncorrupted public service”.
[80]
The preamble speaks of the federal public
administration as being “part of the essential
framework of Canadian parliamentary democracy”. It also states that “confidence in public institutions can be enhanced by
establishing effective procedures for the disclosure of wrongdoings”. To
protect these values public access to findings of wrongdoing, whether resulting
from an internal process or from an investigation by the Commissioner, is
mandatory.
[81]
The Commissioner has an explicit duty to review
investigations and report his findings to the discloser and to the responsible
chief executive. When wrongdoing has been found the Commissioner is required to
table a report in Parliament. There is no duty to table reports with respect to
matters not found to constitute wrongdoing. This distinction reinforces the high
value Parliament has placed on making wrongdoings public.
[82]
The Commissioner reports directly to Parliament
by filing both an Annual Report of the activity of his office and a Case Report
whenever there is a finding of wrongdoing. This underscores the importance of
the Commissioner’s work and the public interest that wrongdoings be publicly
exposed in keeping with the values expressed in the preamble.
[83]
The Court of Appeal in Agnaou v Canada
(Attorney General), 2015 FCA 29 at paragraph 60, [Agnaou #2]
described the purpose of the PSDPA as being:
. . . . to denounce and punish wrongdoings in the public
sector and, ultimately, build public confidence in the integrity of federal
public servants. The public interest comes first, and it is the Commissioner’s
responsibility to protect it.
[84]
It is with this scheme and these objects in mind
that subsections 23(1) and 24(1) are to be interpreted.
B.
Positions of the Parties
(1)
“Dealing with” and “Subject-matter”
(a)
The Position of the RCMP
[85]
The RCMP submits subsection 23(1) exists to
avoid duplication of effort. They say the Commissioner acknowledged that TC was
dealing with the subject matter of the disclosure in his letters of July 9,
2014 and October 14, 2014 as well as at page 10 of the Case Report. They stress
there was overlapping subject matter being dealt with by TC including the one
allegation of wrongdoing that the Commissioner substantiated: aircraft were
being flown overweight in contravention of CAR paragraph 602.07(a). As such,
internal RCMP resources were involved with two parallel processes contrary to
the intention of subsection 23(1).
[86]
The RCMP urges a broad interpretation of subsection
23(1) saying it casts a wide net and is written in very broad in general terms.
They submit the phrase “dealing with” has a very
broad and general ordinary meaning. The ordinary meaning of “dealing with” is the one that is “the reader’s first impression meaning, the understanding
that spontaneously comes to mind”, see Sullivan on the Construction of
Statutes, 5th ed (Markham: LexisNexis Canada, 2008) at pages 25-26. They refer
to various dictionary definitions to say that “to deal
with” includes “to act in regard to, administer,
handle, dispose in any way of (a thing).”
[87]
Counsel for the RCMP submitted that when TC was
asked by the RCMP to assess whether their operations were in regulatory
compliance and subsequently when TC reviewed the CAPs designed by the RCMP, TC
was clearly “dealing with” the matter in the
ordinary meaning of the expression.
[88]
In an annex enclosed with their letter of
July 30, 2014 to the Commissioner, the RCMP says their position is that the use
of CAPs is authorized by section 4.2 of the Aeronautics Act, to ensure
compliance with the CARs. That shows “the subject
matter of the alleged wrongdoing is being dealt with administratively by the
Minister of Transport”. They go on to say “the
law enforcement authorities set out in the Aeronautics Act have not been
engaged” noting that is an important distinction. Subsection 23(1)
contemplates a wrongdoing investigation may proceed in parallel with a law
enforcement proceeding. The RCMP concludes that subsection 23(1) bars “parallel administrative proceedings dealing with the same
subject matter as the alleged disclosure.”
[89]
The RCMP submits that the voluntary nature of
the arrangement between the RCMP and TC is an irrelevant fact because
subsection 23(1) is not limited in any way. Therefore, “dealing
with” does not include any “consideration of the
adequacy of the manner in which another body is dealing with the subject
matter” nor is there any limitation on it other than any “dealing with”
must be done under another Act of Parliament.
[90]
Finally, the RCMP contrasts subsection 23(1)
with paragraph 24(1)(a) to note that in paragraph 24(1)(a) the phrase “dealing with” is qualified in that the Commissioner
is to form an opinion of whether the subject matter has been adequately dealt
with or could more appropriately be dealt with under another Act of Parliament
but there is no such guidance or qualification in subsection 23(1). The RCMP
says this means once another body is dealing with the subject matter the
Commissioner may not deal with it. Applying the expression unius est
exclusion alterius, the RCMP says under subsection 23(1) it does not matter
how effectively or adequately the other body is dealing with the subject matter
because, unlike section 24, Parliament did not give the Commissioner any
discretion in subsection 23(1). As a result, he has no right to subjectively
evaluate how the other body deals with the subject matter.
(b)
The Position of the Commissioner
[91]
The Commissioner submits that in light of the
important objects of the PSDPA to maintain and enhance public confidence
in the integrity of public servants and the requirement that a finding of
wrongdoing be reported to Parliament, the limitation found in subsection 23(1)
must be read narrowly. He urges it should only apply in the clearest of cases. In
support he points to the sections of the PSDPA that require him to
receive and investigate disclosures and give him broad discretion to initiate
an investigation.
[92]
The Commissioner says simply possessing an
authority is not enough, there is a threshold of activity that must be met. He
refers to the French wording of subsection 23(1) [“saisi
de l’objet de celle-ci”] to submit that for subsection 23(1) to apply, TC
has to be specifically seized of the matter in an administrative proceeding
that is intended to dispose of or finally determine the precise matter or
allegation, with binding effect. The voluntary, consultative process conducted
by TC does not meet that requirement.
[93]
The Commissioner says TC was not dealing with
the subject matter of the disclosure and was not proceeding under another Act
of Parliament. The RCMP voluntarily invited TC to review all their ASB
operations as a consultant. The objective was to identify where regulatory gaps
exist and to suggest best practices with a view to proposed new aviation
regulations. Whereas the Commissioner was looking backward at behaviour during
2003 to 2012, TC was largely looking forward to future regulation and looked
backward fewer than 12 months.
[94]
The Commissioner says TC did not deal with the “subject matter of the disclosure” because, although
they dealt with similar matters, subsection 23(1) requires that TC be dealing
with the specific questions raised by the disclosure. Otherwise, meritorious
disclosures may not be dealt with and the object of the PSDPA to bring
wrongdoing to light would be circumvented by a body looking at different
matters. As an example, they cite the TC focus as being to facilitate current
and future compliance with the regulations but not to expose past wrongdoings
or hold the RCMP to account. The Commissioner alleges the Advisory Assessment
was completely different in approach and focus. It was an internal “eyes-only” review conducted at the request of the
RCMP to provide technical advice and make recommendations for future compliance
that could have been cancelled at any time by the RCMP.
[95]
Regarding the argument that subsection 23(1) is
to be read to “avoid duplication”, the
Commissioner points out that when a law enforcement agency is involved
overlapping investigations are expressly authorized by subsection 23(1) thus
avoiding duplication was not a legislative concern.
[96]
Finally, the Commissioner raises the concern
that if the RCMP is correct, any federal department could conduct a general,
non-binding review with the result that it would pre-empt the accountability
provisions of the PSDPA.
(2)
“Under Another
Act of Parliament”
(a)
The Position of the RCMP
[97]
Even though the RCMP invited TC to assess its
operations, they state that given the provisions of the Aeronautics Act,
TC can monitor legislative compliance at any time. As support, they point to the
words in section 4.2, “[t]he Minister is responsible
for the development and regulation of aeronautics and the supervision of all
matters concerned with aeronautics”. Very broad powers are given to the
Minister in section 8.7, such as to enter any place for the purpose of making
inspections or audits relating to enforcement, to seize any document or other
thing from such a place if it will afford evidence with respect to an offence, and
to detain any aircraft believed to be unsafe or likely to be operated in an
unsafe manner.
[98]
The RCMP says the Advisory Assessment and CAPs
could only have been conducted under the powers in the Aeronautics Act. Relying
on Larny Holdings Ltd v Canada (Minister of Health), 2002 FCT 750
(TD), the RCMP submits that the phrase “under an Act”
has been broadly interpreted to include someone purporting to exercise powers
under an Act whether those powers were specifically conferred on the person or
not.
[99]
Applied to the present case, the RCMP says that “if the Transport Canada inspectors were not acting under the
Aeronautics Act, what then were they doing?”
(b)
The Position of the Commissioner
[100] To support his positon that TC was not operating under an Act of
Parliament, the Commissioner relies heavily on the fact that the RCMP invited
TC to conduct a review and TC told the investigators it was more in the nature
of an audit. The RCMP held a Temporary Private Operators certificate. The Oversight
Plan states “[s]ince there are no formal oversight
requirements for Private Operators the TC team will be able to perform its
duties as a consultant to the RCMP”. Simply put, TC was not conducting a
regulatory review so it was not acting under the Aeronautics Act.
[101] The Commissioner points out that the Advisory Assessment makes observations
and recommendations, not findings. The focus by TC was on facilitating current
and future compliance, not holding the RCMP to account for past infractions. TC
did not investigate or make any determination with respect to the specific
breaches of the regulations that formed the subject matter of the allegations.
[102] In answer to the Larny Holdings argument by the RCMP, the
Commissioner says TC was not acting under any legislation nor did they purport
to be. TC officials were just using their knowledge of the legislation and the
CARs to provide advice to the RCMP as a consultant.
[103] The Advisory Assessment did not deal with any instances of
overweight flying before 2013 but the disclosures all predate 2013. In terms of
acting under legislation and having the ability to enforce regulations, section
26 of the Aeronautics Act precludes enforcement proceedings in relation
to incidents arising more than 12 months earlier unless they seek to suspend or
revoke the operator’s certificate or proceed by indictment.
[104] The Commissioner alternatively submits that even if TC was acting
under another Act of Parliament, the activities of TC and the Commissioner’s
staff were not concurrent. When TC concluded the Advisory Assessment they were
no longer acting under another Act of Parliament and the Commissioner could
proceed with his investigation or, decide not to cease it under subsection
24(1).
C.
Analysis and Conclusion
[105] The parties have focused on the phrases in subsection 23(1) but not necessarily
in the context of the PSDPA. Given the importance of whistleblower
legislation to “denounce and punish wrongdoings in the
public sector” the phrase “dealing with”
must take its meaning from this context. The phrase cannot be interpreted so
broadly as to frustrate the scheme and purpose of the legislation. Simply
bringing the wrongdoing to the attention of the CEO is but one aspect of the
purpose of an investigation. Public exposure is mandatory whenever an
investigation leads to a finding of wrongdoing.
[106] The legislation addresses wrongdoings of an order of magnitude that
could shake public confidence if not reported and corrected. When the
Commissioner is “dealing with” an allegation of
wrongdoing, it is something that, if proven, involves a serious threat to the
integrity of the public service. That is why, before an investigation is
commenced, there is a period of analysis to determine there is some merit to
the disclosure. That is also why the investigators are separate from the
analysts.
[107] The focus of the disclosure provision of the PSDPA is to
uncover past wrongs, bring them to light in public and put in place corrections
to prevent recurrence. As set out in the Oversight Plan and Advisory
Assessment, the focus of TC was to find gaps in existing procedures and provide
advice with respect to future regulations. The context and purpose of the
activities of TC was entirely different than that of the Commissioner’s
analysis and investigation under the PSDPA of the allegations in the
disclosure.
[108] TC was conducting a broad examination of the ASB, not a focused
review of the OAS. Under the Oversight Plan, the ASB Headquarters and four air
sections, including the OAS, were visited. The OAS was one of the 19 air
sections in the ASB spread throughout the country.
[109] TC was also reporting to the potential wrongdoer, with no obligation
to make any observations or recommendations public in any way. The flavour of
the TC activities was consultative, not investigatory. TC repeatedly told the
investigators in a variety of ways that it was acting more like a consultant to
the RCMP, did not go in under “regulatory mode”,
and was essentially conducting an audit. Although the RCMP says the quality of
the activity by the other body is not relevant, I am not persuaded the PSDPA
should be read that broadly as to do so would completely ignore the context of
the scheme and object of the legislation.
[110] An email on August 18, 2014 from Sean Flatt to one of the
investigators highlights an important difference in the approach of TC versus
the Commissioner in dealing with the issue of non-compliance by the OAS with
the CARs. Mr. Flatt stated:
The CAP method of dealing with
non-compliance issues is the preferred method for any organization since our
goal is to regain compliance. Escalating tools of enforcement are available if
an organization does not come into compliance.
. . .
It is my sincere desire to see the RCMP Air
Services Branch continue to focus their efforts on the Corrective Actions
they’ve developed with a look toward ongoing regulatory compliance. Dwelling on
a punitive response to past noncompliance issues serves no further purpose other
than to disrupt ongoing positive efforts.
[111] The fact that the end result ─ the measures taken by RCMP with
the advice of TC ─ were satisfactory to the Commissioner, does not alter
or affect the legitimacy of his investigation into the wrongdoings. Tabling the
report in Parliament is an important part of the whistleblowing process. The
acceptance of the RCMP, albeit reluctant, of the finding that the regulations
were contravened when incorrect entries were made in journey logs would not
otherwise have become public.
[112] That TC handles such contravention in a different way is the
difference between the approach of a regulator and the approach of the person
charged with maintaining and enhancing the integrity of public servants and
public confidence in the federal public administration. That is done by
establishing effective procedures for the disclosure of wrongdoing. Once a
disclosure is screened for merit, those procedures lead to further analysis and
investigation where warranted. It is one continuous “dealing
with” the disclosure using a careful process that tries to ensure only
important, timely disclosures made in good faith are handled.
[113] The PSDPA is remedial legislation. As such, section 12 of the
Interpretation Act, RSC 1985, c.I-21 requires it to be given “such fair, large and liberal construction and interpretation
as best ensures the attainment of its objects”. Parliament cannot have
intended that subsection 23(1) be read so broadly that a procedure undertaken months
after the Commissioner begins to deal with a disclosure, led by another body
for a different purpose, headed toward the qualitatively different outcome of a
private report, regardless of the finding, and examining only recent, very
different, evidence should be sufficient to prevent the Commissioner from
determining whether a serious past allegation of wrongdoing occurred and, if
so, exposing it.
[114] I acknowledge that the RCMP feel strongly that they took proactive
steps when they first received the original negative report from Beaconfield. They
sincerely believe they were unnecessarily subjected to the Commissioner’s
investigation. They want to understand the parameters of subsection 23(1). This
case turns on its facts. Without knowing exactly where the line is that once it
is crossed triggers subsection 23(1), I am sure it was not crossed in this
instance. I have also provided, later in these reasons, an additional analysis
that may prove helpful going forward.
[115] In my view the Commissioner reasonably interpreted the activities of
TC when he determined that they were not operating under another Act of
Parliament. TC communicated to his investigators directly by telephone and
email and, in the Advisory Assessment they delivered. Amongst his reasons, as
communicated to the RCMP, the Commissioner stated he was satisfied subsection
23(1) did not apply because “[a]s confirmed by both you
and TC, Corrective Action Plans are voluntary arrangements that do not engage
the law enforcement tools under the Aeronautics Act” and“[b]ecause the RCMP can unilaterally remove itself from the
Corrective Action Plans process and because Transport Canada cannot force or
compel follow-up actions against the RCMP pursuant to the Corrective Action
Plans themselves.” (emails from the Commissioner to the RCMP on October
14, 2014 and November 10, 2014 respectively)
[116]
Even if the RCMP’s very broad interpretation
is accepted as reasonable, the Commissioner’s interpretation is equally so
because of the important nature of his duties under the PSDPA. It is
reasonable to find that a private report, organized by the alleged wrongdoer,
even with the best of intentions, cannot displace the Commissioner’s work. This
is particularly so where the private report has no element of public
accountability. When there are competing reasonable interpretations of a
statute put forward, the Supreme Court of Canada has said the administrative
decision-maker who is interpreting their home statute “has
the discretion to resolve the statutory uncertainty by adopting any
interpretation that the statutory language can reasonably bear.” In that
event, judicial deference “is itself a principle of
modern statutory interpretation.” (British Columbia (Securities
Commission) v McLean, 2013 SCC 67 at para 40.)
VI.
Was the Interpretation of Subsection 24(1)
Reasonable?
A.
Positions of the Parties
[117] The RCMP says subsection 24(1) is not engaged because subsection
23(1) barred the Commissioner from conducting an investigation so subsection
24(1) is never reached. They submit the Commissioner may rely on subsection
24(1)(a) to determine whether the other body has adequately dealt with the
subject matter. In that case the Commissioner will have the advantage of the
information from the other body.
[118] The RCMP submits this approach, where subsection 24 provides an
after the fact review of how another body dealt with the subject matter rather
than allowing the Commissioner to duplicate the process under subsection 23(1),
is consistent with the purpose of the PSDPA which is to draw wrongdoings
to the attention of CEOs and make recommendations for corrective steps. They
limit their analysis to that aspect of subsection 24(1) and did not address the
aspect of whether the other body could more appropriately deal with the subject
matter or the additional purpose to denounce and punish wrongdoings in the
public sector.
[119]
The RCMP did urge the Commissioner to
cease his investigation based on the provisions of subsections 24(1)(a),(d) and
(f) because “[a]ny gaps with regulatory requirements
are being addressed in consultation with TC Civil Aviation Safety Inspectors”
and “[if] the OAS is unsuccessful in implementing Corrective Action Plans, it
is already within the Minister of Transport’s discretion to transition to
enforcement measures or penalties under the Aeronautics Act.” (letter of May 22, 2014 from Commissioner Paulson to Commissioner
Dion)
[120] The Commissioner notes that TC had completed their assessment by
November 2013 and, if subsection 23(1) had ever applied, the restriction was
gone when the assessment by TC was finished. The Commissioner says at that time
he was free to exercise his discretion under subsection 24(1) to continue his
investigation.
[121] The Commissioner also argues that under subsection 24(1)(a) he can
exercise his discretion to cease an investigation where he is “of the opinion” that the subject matter of the
disclosure has been adequately dealt with “according to
a procedure provided for under another Act of Parliament” and that by
corollary he can refuse to cease to investigate if he is of the opinion that it
has not been adequately dealt with by such other procedure.
[122] In his reply to Commissioner Paulson’s comments about subsection
24(1) the Commissioner decided that as the preliminary results show “wrongdoing may have occurred on repeated occasions at the
OAS” and, if so, they represent “serious matters
of public interest” he did not believe the was a valid reason to cease
the investigation prior to its conclusion.
B.
Analysis and Conclusion
[123] The Court of Appeal in Agnaou confirms that the Commissioner “clearly has
very broad discretion to decide not to deal with a disclosure or not to
investigate under section 24 of the Act”. (see paragraph 59)
[124] In Detorakis v Canada (Attorney General),2010 FC 39 (Detorakis)
at paragraph 106, Mr. Justice Russell finds the Commissioner’s
discretionary power under subsection 24(1) is extremely wide:
[. . . ]
The discretionary power under section 24(1)
is extremely wide. Its apparent objective is to allow the PSIC to decide
whether it is in the public interest to investigate a complaint or to
determine, on the basis of the information provided by a complainant, whether
the matter could be better dealt with under another Act. The PSIC’s office must
be taken to have some expertise in this matter;
[125] This finding in Detorakis has been noted with approval twice in
the Court of Appeal (in Agnaou #1 and also in Agnaou v Canada
(Attorney General), 2015 FCA 29 (often referred to as Agnaou #2) as
well as in several subsequent decisions of this Court.
[126] I agree with the RCMP that subsection 24(1) provides the Commissioner
with an after the fact review of the activity of another body. The question is
when did “after the fact” arise?
[127] What is somewhat unclear on the facts is when TC ceased to deal with
the matters they were considering under the Oversight Plan. There is every
indication that TC considered their work completed in January, 2014 when the
Advisory Assessment was prepared and delivered. It contained the findings and
recommendations. The Oversight Plan timeline was that the Final Report would be
delivered in December/January. The conclusion in the last paragraph of the
Advisory Assessment indicates TC viewed their the work as done:
It is with sincere gratitude to the RCMP
that Transport Canada was invited to assess the operations of the Air Services
Branch. The ASB personnel are dedicated to doing their job in a very
professional manner and there are high hopes for positive change. It is with
confidence that this report is submitted as a further catalyst for improvement.
Thank you for all your time and effort in accommodating the Transport Canada
team.
[128] Given all this information it was reasonable for the Commissioner to
determine that TC had completed its assessment either in December of 2013 or
January of 2014 and he was free to decide whether it had been adequately done.
He determined he would not cease his investigation given the preliminary
finding of wrongdoing involved public safety matters in aviation.
[129] Alternatively, it was entirely reasonable, given the expertise of
the Commissioner as stated in Detorakis for him to determine that the
public interest required conclusion of his investigation. Paragraph 24(1)(f)
gives the Commissioner authority to exercise his discretion if “there is a valid reason for not dealing with the subject-matter
of the disclosure or the investigation”. By adding this “catch-all” Parliament has provided the Commissioner
with enormous latitude. His consideration that the public interest required a
final determination of whether the RCMP had committed wrongdoings, given the
nature of the allegations, was reasonable.
VII.
Additional Analysis of Sections 23 and 24
[130] There is an important detail that was not directly addressed by the
parties but is under the surface of their arguments. The Commissioner was
dealing with the disclosure of wrongdoings against the OAS long before TC was
invited by the RCMP to review the ASB operations. The disclosure was received
in January, 2013. TC was engaged by the RCMP in August, 2013.
[131] On plain reading, subsection 23(1) is written in the present tense.
At the time the Commissioner began to deal with the disclosure and for the
following seven months, no one else was dealing with the subject matter of the
disclosure. In fact, until one year after he began dealing with the disclosure
the Commissioner was unaware that TC was involved with the ASB. On that basis
subsection 23(1) was properly engaged by the Commissioner from the outset.
[132] When TC was asked to review the ASB, nothing in section 23 prevented
them from conducting their assessment. Section 23 only affects the Commissioner.
To require the Commissioner to yield the ground to another federal
administrative body in these circumstances, given the value the PSDPA places
on denouncing wrongdoings, requires very clear wording. The clear wording of
when the Commissioner might decide to cease his investigation into the
disclosure is found in paragraph 24(1)(a). Either another body has already
adequately dealt with the subject matter or, another body could more
appropriately deal with the subject matter.
[133] Section 23 has a relatively narrow application. It applies when the
Commissioner receives a disclosure and there is already another body dealing
with the subject-matter of the disclosure under an Act of Parliament. That is
not this situation. But, if it had been then, as was argued here, I have found the
determination of whether the Commissioner may not deal with the disclosure
requires consideration of the nature of the “dealing
with” in the context of the scheme and objects of the PSDPA.
[134] It was not until late November, 2013 that the Commissioner’s
investigators first learned of the involvement of TC. Contact was made with TC in
early December, 2013 but the investigators had no information about the role of
TC until January, 2014 when they received the Advisory Assessment. At that time,
paragraph 24(1)(a) gave the Commissioner the discretion to cease his
investigation if he was of the opinion that TC had adequately dealt with the
subject-matter of the disclosure. Or, if the RCMP argument is accepted that TC
was still dealing with the matter because of the CAPs, the Commissioner could
have turned his mind to whether TC could more appropriately deal with the
subject matter according to a procedure under the Aeronautics Act.
[135] In this instance, subsection 24(1) addressed what the Commissioner was
to do when another body began to deal with the subject matter after he had
already begun to deal with it under subsection 23. For the reasons already
given it is my view that the Commissioner reasonably formed his opinion under
section 24 once he had further information. He then provided sound reasons for
refusing to cease to investigate the disclosure.
VIII. Conclusion
[136] Given the nature of the TC advisory assessment as set out in these
reasons, the Commissioner’s determination under subsection 23(1) that TC was
not acting under another Act of Parliament was reasonable and should not be set
aside.
[137] In light of the facts of this case and the Commissioner’s expertise,
as well as the acknowledged broad discretion he possesses under section 24, the
Commissioner’s decision not to cease his investigation once he was apprised of
the TC activities is unassailable.
[138] For the reasons set out above, this application is dismissed.
[139] The parties agreed there would be no order as to costs, regardless
of outcome.