Date: 20121129
Docket: A-493-11
Citation: 2012 FCA 314
CORAM: NOËL
J.A.
PELLETIER
J.A.
MAINVILLE
J.A.
BETWEEN:
AIDA MARIÈME SECK
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This is an appeal
from the judgment (cited as 2011 FC 1355) by which Justice Bédard
of the Federal Court (the “judge”) dismissed an application for judicial review
of a decision of the Public Service Commission (the “Commission”). The Commission
found that the appellant had given false references in the course of an
appointment process within the federal public service and that fraud within the
meaning of section 69 of the Public Service Employment Act, S.C. 2003,
c. 22, sections 12 and 13 (the “Act”), had therefore occurred in that
process.
Background
[2]
The appellant applied
for a position within the Department of Foreign Affairs in an internal
appointment process organized by that Department in accordance with the Act. As
required by the appointment process, the appellant named as a reference her immediate
supervisor in a previous position, and that was Rose M’Kounga. Ms. M’Kounga
gave the persons who were responsible for the competition exhaustive and very
favourable written comments concerning the appellant’s skills and
qualifications. Despite this, the appellant was not selected.
[3]
Later, an internal
administrative investigation by the Department of Natural Resources into the
use of its computer system by one of its employees, Gisèle Seck (the appellant’s
mother), uncovered some troubling facts that were reported to the Commission.
[4]
The Commission then
launched its own investigation concerning the appellant, under section 69 of
the Act, which reads as follows:
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69. If it has reason to believe that fraud may have occurred in
an appointment process, the Commission may investigate the appointment
process and, if it is satisfied that fraud has occurred, the Commission may
(a) revoke
the appointment or not make the appointment, as the case may be; and
(b) take any corrective action that
it considers appropriate.
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69. La Commission peut mener une enquête si elle a des motifs de
croire qu’il pourrait y avoir eu fraude dans le processus de nomination; si
elle est convaincue de l’existence de la fraude, elle peut :
a) révoquer la nomination ou ne
pas faire la nomination, selon le cas;
b) prendre les mesures correctives qu’elle estime indiquées.
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[5]
After summoning and
hearing a number of witnesses, including the appellant and Ms. M’Kounga, the
investigator appointed by the Commission concluded: (a) that Ms. M’Kounga had
not been the appellant’s supervisor, and (b) that the reference that Ms. M’Kounga
gave regarding the appellant had been prepared by the appellant and her mother,
and Ms. M’Kounga had simply sent it to the persons responsible for the
appointment process. In the Commission’s opinion, that constituted fraud in the
appointment process.
[6]
The Commission therefore
took the following three corrective actions:
a. For a period of three years, the appellant must obtain written permission from the Commission before accepting a position
within the federal public service. If she accepts a determinate or indeterminate
appointment within the federal public service without first obtaining such
permission, her appointment will be revoked.
b. A copy of the investigation report and the
record of decision, as well as all other relevant information concerning the
appellant, were sent to her employer, the Canada Revenue Agency.
c. A copy of the investigation report and all
other relevant information were also sent to the Royal Canadian Mounted Police,
since section 133 of the Act provides that
every person who commits
fraud in any appointment process is guilty of an offence punishable on summary
conviction.
Judgment of the Federal Court
[7]
Three issues were
raised before the judge: (a) Could the Commission conduct an investigation
and take corrective action under section 69 of the Act in the
circumstances of the case? (b) Did the Commission breach the principles of
natural justice and procedural fairness? (c) Was the Commission’s decision
well founded, given the evidence gathered in the course of the investigation?
[8]
The judge used the
reasonableness standard of review to assess whether the Commission had
jurisdiction to conduct the investigation in question given that the appellant
was not the successful candidate at the end of the selection process. She
concluded that section 69 of the Act gave the Commission the power to
investigate any fraud that may have been committed in the
course of an appointment process in the public service, and not just fraud that
has led to the appointment of a candidate who committed that fraud.
[9]
The judge applied the
correctness standard of review when considering whether the Commission had
acted fairly. She noted that the Commission, through its investigator, had
clearly informed the appellant of the nature of the investigation and of the
allegations against her at each step of the investigation, and that the appellant had been given
the opportunity to be heard and to be represented by counsel.
[10]
Finally, the judge
concluded that the Commission had been reasonable in its assessment and
analysis of the evidence gathered during the investigation. On this point, the judge noted that the
facts presented by the appellant and Ms. M’Kounga were contradictory and
inconsistent, particularly regarding the period during which the appellant had
allegedly worked under the supervision of Ms. M’Kounga and the place at which
this work had allegedly been performed. Consequently, the judge held that it
was reasonable for the Commission to conclude that Ms. M’Kounga had not
supervised the appellant during the period in question.
[11]
The judge also held
that it was reasonable for the Commission to conclude, on the basis of the numerous
emails in the record, that the favourable comments regarding the appellant that
Ms. M’Kounga had sent in the course of the appointment process in question
had been prepared by the appellant and her mother.
Issues on appeal
[12]
The fundamental issue
raised by the appellant in this appeal is the scope of the Commission’s
jurisdiction under section 69 of the Act. This is the main issue that this
Court must consider.
[13]
On appeal, as before
the Federal Court, the appellant is challenging the fairness of the procedure
followed by the Commission, and she still maintains that the Commission’s
analysis of the evidence is unreasonable.
Main issue: The scope of the Commission’s
jurisdiction to investigate and take corrective action under section 69 of
the Act
(a) Standard of review
[14]
In an appeal involving an application for judicial review, this Court must
determine whether the reviewing judge chose and applied
the appropriate standard of review; if the judge did not do so, this Court must
then review the impugned administrative decision in light of the applicable
standard. The judge’s selection of the appropriate standard of review is itself a
question of law, subject to review on the standard of correctness: Dr Q. v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at
paragraph 43; Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100,
at paragraph 35; Prairie Acid Rain Coalition v.
Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006]
3 F.C.R. 610, at paragraphs 13 and 14.
[15]
The judge applied the
reasonableness standard to the main issue raised by the appellant, and did so on
the basis that the Commission was interpreting its home statute. At the hearing
of this appeal, the respondent also submitted that the applicable standard is
reasonableness. However, recently, in another appeal related to this case,
namely Anissa Samatar v. Attorney General of Canada, 2012 FC 1263
(Samatar), Justice Martineau of the Federal Court had to deal with
the same issue and disagreed (at paragraphs 35 and 75 to 93 of Samatar)
with the standard of review applied by the judge in the present case.
Justice Martineau is of the opinion that the matter of the scope of
section 69 of the Act is a question of jurisdiction
or a question of law that is of vital importance for the public service
appointment process and that calls for the application of the correctness
standard.
[16]
As the following
analysis illustrates, the main issue raised by this appeal is the jurisdiction
of the Commission under section 69 considering the powers of deputy heads
and managers under subsection 15(3) of the Act and of the jurisdiction of
the new Public Service Staffing Tribunal. Indeed, as I note further on, the
Commission’s jurisdiction under section 69 of the Act must be determined by
taking into account the concept of “fraud” referred to in that provision, which
sets the Commission’s jurisdiction apart from that of deputy heads under
subsection 15(3) in relation to “improper conduct”. Questions regarding
jurisdictional lines are subject to review on the correctness standard: Dunsmuir v.
New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9
(“Dunsmuir”), at paragraph 61.
[17]
The judge applied the
reasonableness standard to the jurisdictional issue submitted to her, namely,
whether the Commission could launch an investigation under section 69 when
the appellant was not selected or appointed as a result of the selection
process. This issue sparked a debate over what constitutes a “true” question of
jurisdiction within the meaning of Dunsmuir at paragraph 59, a
debate in which the Supreme Court of Canada itself is partaking: Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at paragraphs 34 to
39. In the present case, it is not necessary to decide whether this case raises
a “true” question of jurisdiction, reviewed on a correctness standard, or a
question of statutory interpretation, reviewed on a reasonableness standard. Rather,
the debate before us centres on questions concerning the jurisdictional lines
between the administrative agencies in question, and these questions call for
the application of the correctness standard.
[18]
This is sufficient to
dispose of the issue of the applicable standard of review. As Dunsmuir
in its entirety suggests, and as Justice Rothstein so aptly points out in Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
above, at paragraph 38, the courts should try to avoid, to the extent
possible, a drawn-out debate on the applicable standard of review and seek to
deal instead with the substantive merits of the issues that are truly of
interest to the parties and the Canadian public.
(b) The
Commission’s decision concerning its jurisdiction
[19]
Before
the Commission, the appellant submitted that it could conduct an investigation
and take corrective action under section 69 of the Act only if there had
been an appointment obtained by fraud. She relied on her argument that the
alleged facts did not constitute fraud. She also relied on her submission that
the Commission could not proceed under this section except if it was seeking to
revoke or to avoid an appointment. Since the appellant’s alleged actions did
not constitute fraud, since the appellant was not selected in the appointment
process in question, and since as a result no appointment could be revoked or avoided,
the Commission did not have the jurisdiction to conduct an investigation and to
take corrective action.
[20]
The
Commission’s investigator did not carry out a textual or contextual analysis of
section 69. The investigator nevertheless rejected the appellant’s
objection to the Commission’s jurisdiction for the reasons stated at
paragraphs 44 to 46 of the investigation report:
44. The Canadian Oxford Dictionary defines fraud as follows:
The action or an instance of deceiving someone in order to make money or
obtain an advantage illegally. A person or thing that is not what it is claimed
or expected to be a dishonest trick or stratagem.
. . .
45. According to the definition, fraud contains an element of
intention; the person committing an act of fraud is doing so in the hope of
gaining something. The intention of committing fraud can also be inferred from
the circumstances. To conclude that fraud occurred during this appointment
process, the evidence must show, on the balance of probabilities that false
references were provided for Marième Seck by Rose M’Kounga.
46. . . . The purpose of section 69 of the PSEA is to
determine if fraud occurred during an appointment process, regardless of
whether the candidate suspected of committing the fraudulent act has been
appointed to the position or not. Often, the fraud is discovered before the
conclusion of an appointment process and the person is never appointed. This
does not mean that the allegation of fraud cannot and should not be
investigated.
(c) The modern approach to statutory interpretation
[21]
Section 69
must be interpreted according to a textual, contextual
and purposive analysis to find a meaning that is harmonious with the Act as a
whole. The
modern approach to statutory interpretation was described in the following
terms by Chief Justice McLachlin and
Justice Major in Canada Trustco Mortgage Co. v. Canada,
[2005] 2 S.C.R. 601, 2005 SCC 54, at
paragraph 10:
It has been long
established as a matter of statutory interpretation that “the words of an Act
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, and the
intention of Parliament”: see 65302 British Columbia Ltd. v. Canada,
[1999] 3 S.C.R. 804, at para. 50. The interpretation of a
statutory provision must be made according to a textual, contextual and
purposive analysis to find a meaning that is harmonious with the Act as a
whole. When the words of a provision are precise and unequivocal, the
ordinary meaning of the words play a dominant role in the interpretive
process. On the other hand, where the words can support more than one
reasonable meaning, the ordinary meaning of the words plays a lesser role. The
relative effects of ordinary meaning, context and purpose on the interpretive
process may vary, but in all cases the court must seek to read the provisions
of an Act as a harmonious whole.
[22]
Therefore,
according to the modern contextual approach to statutory interpretation, the
grammatical and ordinary sense of a provision does not necessarily determine
its scope. Consideration must be given not only to the ordinary and natural
meaning of the words, but also the context in which they are used and the
purpose of the provision within the greater statutory scheme where it is found:
Bell ExpressVu Limited
Partnership v. Rex, [2002] 2 S.C.R. 559,
2002 SCC 42, at paragraph 27. The most
significant element of this analysis remains the determination of legislative
intent: R. v. Monney,
[1999] 1 S.C.R. 652, at paragraph 26.
(d) The legislative context
[23]
The
Act is part of a new statutory framework, namely, S.C. 2003, c. 22, which
implemented a major restructuring aimed at modernizing the employment and
labour relations regime in the federal public service. This new statutory
framework resulted in the new Public Service Labour Relations Act, S.C. 2003,
c. 22, s. 2, which institutes a labour relations regime based on greater
cooperation and consultation between the employer and bargaining agents. It
also amended the Financial Administration Act, R.S.C. 1985,
c. F‑11, to put direct responsibility for certain aspects of human
resources management in the hands of deputy heads, subject to policies and
directives of the Treasury Board. It changed the structure of the Canadian
Centre for Management Development to create the Canada School of Public Service,
the organization responsible for learning and development activities for employees
in the public service. Finally, it replaced the former Public Service
Employment Act, R.S.C. 1985, c. P‑33, with a new statute
having the same title—the Act at issue in this appeal—aimed at modernizing the
staffing regime in the public service.
[24]
The
Act’s preamble describes the fundamental values of the federal public service. In
particular, it states that the public service must be based on merit and
non-partisanship and that these two values must be independently safeguarded. The
public service must also strive for excellence, be representative of Canada’s diversity and be able to serve the public with integrity and in the official
language of its choice. The preamble also sets out the principle that delegation
of staffing authority should be to as low a level as possible within the public
service and should afford public service managers the flexibility necessary to staff,
to manage and to lead their personnel to achieve results for Canadians.
[25]
Part 1
of the Act continues the Public Service Commission but gives it a very
different mandate from the one it had before the new statutory framework was
enacted. The Commission is still responsible for staffing within the public
service, but the Act now clearly states that staffing authority will be
delegated to the deputy heads, who in turn may delegate it to managers in their
respective organizations. The Commission may also conduct investigations and
audits in accordance with the Act, but its jurisdiction in respect of most staffing
complaints is largely ousted in favour of managers and a new administrative
tribunal, the Public Service Staffing Tribunal.
[26]
Part 2
of the Act governs appointments in the public service. Appointments must be
made “on the basis of merit” (subsection 30(1)). For an appointment to be
based on merit, the person to be appointed must meet “the essential
qualifications for the work to be performed, as established by the deputy head”
(paragraph 30(2)a)). Managers have broad appointment powers and, in
exercising these powers, may use an advertised or non-advertised appointment
process (section 33), determine areas of selection (section 34), and use
any assessment method, such as a review of past performance and accomplishments,
to determine whether a person possesses the required qualifications (section 36).
[27]
Part 3
of the Act sets out the powers and obligations relating to deployments of
employees within the public service. Part 4 specifies the terms and
conditions of employment in the public service, particularly the obligation to
take an oath to faithfully and honestly fulfil one’s duties, the effective date
of an appointment, the period of employment, probationary periods, rates of pay
on appointment and the rules regarding the laying off of employees.
[28]
Part 5
of the Act concerns investigations and complaints relating to appointments. It
describes the responsibilities and jurisdiction of the Commission regarding
investigations, as well as those of the new Public Service Staffing Tribunal.
[29]
The
Commission’s jurisdiction to investigate and to take corrective action is
essentially limited to external appointment processes (section 66). Investigations
and corrective action regarding internal appointment processes are the
responsibility of the deputy heads (subsection 15(3)). Therefore, the
Commission may only investigate an internal appointment process when the deputy
head responsible for the process requests it or in the rare cases where the
authority to make appointments has not been delegated to a deputy head (section 67),
in cases where the Commission has reason to believe that an appointment or
proposed appointment was not free from political influence (section 68), or
if it has reason to believe that fraud may have occurred in an appointment
process (section 69).
[30]
Most
complaints relating to internal appointment processes are now handled by the
new Public Service Staffing Tribunal, which is the subject of Part 6 of
the Act. Indeed, the Tribunal considers complaints from employees concerning the
revocation of an appointment (section 74) or a refusal to make an
appointment in an internal appointment process (section 77), except where
there are allegations of fraud or political influence (subsection 77(3)).
[31]
Part 7
of the Act governs the political activities of employees and the Commission’s
powers to investigate and take action in such matters. Finally, Part 8 of
the Act contains general provisions, including section 133, which creates the
only criminal offence under the Act, namely, committing fraud in an appointment
process.
[32]
The Commission’s
power to investigate under section 69 of the Act is thus part of a sweeping
reform designed to modernize the public service’s staffing system, particularly
by delegating most staffing decisions to the lowest level possible. However,
this reform seeks to maintain and safeguard the fundamental values of the
public service, including the commitment to ensuring that appointments in the
public service are based on merit and non-partisanship. Section 69 must
therefore be understood and interpreted in that context.
[33]
In light of the
legislative context, there are three aspects of section 69 that must be
considered in this appeal: (1) the concept of “fraud” in section 69, as
distinguished from “improper conduct” under subsection 15(3) of Act, in
respect of which deputy heads are authorized to conduct investigations
and take corrective action in the case of an internal appointment process;
(2) the question of whether an appointment must be at issue before an investigation
can be pursued or corrective action under section 69 can be taken; and (3) the
concept of “corrective action” and how such action is distinguished from
“disciplinary” action by managers and “criminal” proceedings in courts of law.
(e) The concept of fraud
in section 69 of the Act
[34]
As I noted above, the
new Act profoundly changed the mandate of the Commission; in general, staffing
powers with which the Commission was previously invested are now exercised in
large part by managers in the public administration. Thus, with a few
exceptions, investigations and corrective action regarding an internal
appointment process are not the Commission’s responsibility. In this regard,
subsections 15(3), (4) and (5) of the Act read as follows:
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15. (3) Where the Commission authorizes a
deputy head to make appointments pursuant to an internal appointment process,
the authorization must include the power to revoke those appointments and to
take corrective action whenever the deputy head, after investigation, is
satisfied that an error, an omission or improper conduct affected the
selection of a person for appointment.
|
15. (3) Dans les cas où la Commission
autorise un administrateur général à exercer le pouvoir de faire des
nominations dans le cadre d’un processus de nomination interne, l’autorisation
doit comprendre le pouvoir de révoquer ces nominations — et de prendre
des mesures correctives à leur égard — dans les cas où, après avoir mené
une enquête, il est convaincu qu’une erreur, une omission ou une conduite
irrégulière a influé sur le choix de la personne nommée.
|
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(4) In
authorizing a deputy head under subsection (3), the Commission is not
required to include the authority to revoke appointments or to take
corrective action in circumstances referred to in sections 68 [political
influence] and 69 [fraud].
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(4) Le
paragraphe (3) n’oblige pas la Commission à inclure dans l’autorisation
le pouvoir de révoquer ou de prendre des mesures correctives dans les cas
prévus aux articles 68 [nomination fondée sur des motifs d’ordre
politique] et 69 [fraude].
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|
(5) The
Commission may not revoke an appointment referred to in subsection (3)
or take corrective action in relation to such an appointment except in
circumstances referred to in sections 68 and 69.
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(5) La
Commission ne peut exercer le pouvoir de révocation ni celui de prendre des
mesures correctives à l’égard d’une nomination visée au paragraphe (3),
sauf dans les cas prévus aux articles 68 et 69.
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[35]
Thus, the distinction
between the Commission’s jurisdiction and the jurisdiction of deputy heads with
regard to investigations and corrective action in an internal appointment
process depends on whether there was “improper conduct” within the meaning of
subsection 15(3) of the Act or “fraud” within the meaning of section 69
of the Act. The Commission does not have jurisdiction in the case of “improper
conduct” in an internal appointment process, but it does have exclusive
jurisdiction to investigate cases of “fraud”.
[36]
The distinction is
important, because if an appointment is revoked on the basis of improper
conduct, the affected employee may file a complaint with the Public Service
Staffing Tribunal, which will determine whether the revocation was reasonable
(subsections 15(3) and 67(2) and section 74). Such a remedy is not
available in cases of fraud (subsection 77(3)). In cases of fraud, the
Commission’s decision under section 69 is final, subject to judicial
review by the Federal Court: Federal Courts Act, R.S.C. 1985,
c. F‑7, sections 18 and 18.1.
[37]
The Act defines
neither “fraud” nor “improper conduct”. In this appeal, since “fraud” is a form
of “improper conduct”, we need only determine the parameters of the concept of fraud
in order to delineate the jurisdiction of the Commission.
[38]
I note that the only criminal
offence created by the Act is “fraud in any appointment process” (section 133).
The distinction between sections 69 and 133 of the Act thus lies in the
burden of proof that applies for the purpose of establishing fraud rather than
in the definition itself of fraud. When the Commission conducts an
investigation under section 69, the applicable standard of proof is that
of the balance of probabilities (see F. H. v. McDougall,
2008 SCC 53, [2008] 3 S.C.R. 41, at paragraphs 40
and 49), whereas a court of law considering a charge under section 133
applies the more stringent standard of proof of “beyond a reasonable doubt”
that is proper in criminal law.
[39]
In my opinion, for
the purposes of section 69 of the Act, the definition of “fraud”
established by Justice Cory in R. v. Cuerrier,
[1998] 2 S.C.R. 371 (Cuerrier), at paragraphs 110 to
116, should be used. Fraud thus has two essential elements: (1) dishonesty,
which can include non-disclosure of important facts; and (2) deprivation
or risk of deprivation.
[40]
Dishonesty is
established where deceit, lies or other fraudulent means are knowingly used in
an appointment process. This may include the non-disclosure or concealment of
important facts in circumstances where that would be viewed by a reasonable
person as dishonest.
[41]
As Justice Cory notes
at paragraphs 113 and 114 of Cuerrier —relying on R. v.
Olan, [1978] 2 S.C.R. 1175, at page 1182, and R. v.
Théroux, [1993] 2 S.C.R. 5, at pages 25 and 26 —the
victim of the fraud is not required to prove that the fraudulent acts caused
actual injury or loss. With regard to section 69 of the Act, to prove the
second element, it therefore suffices to establish that the appointment process
could have been compromised.
[42]
If we apply these
principles to the present case, fraud within the meaning of section 69 of
the Act will be found if the evidence proves on a balance of probabilities that
the appellant knowingly provided false references in order to deceive the
persons responsible for the appointment process and thereby increase her
chances of being appointed. Providing false references undermines the
appointment process; even if the person who committed the fraud is not
appointed, the constituent elements of fraud have nevertheless been proved.
(f) Does there have to be an appointment at
issue in order to investigate and take corrective action under section 69?
[43]
As I have concluded, it
is not necessary that an appointment result from the fraudulent acts in order for
there to be fraud within the meaning of the Act. However, the appellant asserts
that the very wording of section 69 includes this requirement since,
according to the appellant, paragraphs (a) and (b) of
that section are conjunctive, meaning the corrective action contemplated in
paragraph (b) may only be taken where, under paragraph (a),
the Commission revokes an appointment, or does not make one. In support of her
argument, the appellant relies on the conjunction “and” that appears between
paragraphs (a) and (b) in the English version of the
section.
[44]
In most of the cases
contemplated by the Act, there has to be an actual or proposed appointment at
issue in order for corrective action to be taken. Thus, it is only if the Commission
or deputy head is “satisfied that there was an error, an omission or improper
conduct that affected the selection of the person appointed” following an
internal appointment process that an appointment may be revoked and corrective
action taken (paragraph 15(3) and section 67). Similarly, in the case
of an external appointment process, the Commission may intervene under
section 66 of the Act only if “the appointment was not made or proposed to
be made on the basis of merit, or . . . there was an error, an
omission or improper conduct that affected the selection of the person appointed
or proposed for appointment”. Likewise, the Commission may intervene under
section 68 of the Act only “if it is satisfied that the appointment or
proposed appointment was not free from political influence”.
[45]
Under all these
provisions, there must be an actual or proposed appointment at issue in order for
a deputy head or the Commission to be able to intervene. However, this
requirement was not added to section 69, which deals with fraud. This is clearly
a deliberate choice by Parliament. Thus, under section 69, the Commission
may investigate “[i]f it has reason to believe that fraud may have occurred in
an appointment process”. Unlike subsection 15(3) and sections 66, 67 and
68 of the Act, section 69 does not require that an appointment, actual or
proposed, be in issue for there to be an investigation and corrective action.
This section addresses the appointment process itself and not just the outcome
of that process.
[46]
Parliament is thus
seeking to ensure the integrity of the appointment process in the federal public
service. Keeping the appointment process free of fraud is thus a fundamental
value that Parliament seeks to safeguard through sections 69 and 133 of
the Act. The Commission may therefore investigate and take corrective action
when there is fraud in an appointment process whether the fraud led to a
fraudulent appointment or not.
[47]
As regards the word
“and” in the English version of section 69, it must be interpreted as
being disjunctive. The English word “and” may indeed be conjunctive or
disjunctive, depending on the context: Canada (Minister of Citizenship and Immigration) v.
Hyde, 2006 FCA 379, at paragraph 22;
P. St. J. Langan, Maxwell on the Interpretation of Statutes,
12th ed. (London: Sweet & Maxwell, 1969), at pp. 232 to 234;
R. Sullivan, Construction of Statutes, 5th ed. (Markham:
LexisNexis Canada, 2008), at pp. 81 to 84. Since section 69 seeks to
guard against fraud in the appointment process itself and not just in the
outcome of the process, the word “and” inserted between paragraphs (a)
and (b) in the English version must be interpreted as being disjunctive.
(g) Corrective action
under section 69
[48]
In cases of fraud in
the appointment process, the Commission may (a) “revoke the appointment or
not make the appointment”, or (b) “take any corrective action that it
considers appropriate”. These are administrative measures intended to ensure
the integrity of the appointment process in the federal public service, not
disciplinary measures per se. This distinction is important, both for
the purpose of delimiting the action that the Commission may take under the
section in issue and for the purpose of defining the Commission’s duty to deal
fairly with the people it investigates.
[49]
The employers of
public servants are responsible for the disciplinary action taken against them,
and disciplinary action is governed by the Public Service Labour Relations
Act. The Commission therefore may not take disciplinary action under
section 69 of the Act. At most, it may, as it did in the appellant’s case,
pass on to the employer any relevant information collected in the course of its
investigation. It will be up to the employer to take disciplinary action, if it
sees fit to do so. The Commission’s role and mandate have to do with the
integrity of the appointment process in the public service rather than
disciplining delinquent employees.
[50]
When the Commission
revokes an appointment under section 69, it is not taking disciplinary
action, as such an appointment is void ab initio. This is not a
dismissal or a lay-off that may be grieved. Nor are the other corrective measures
that the Commission may take subject to grievance.
[51]
If the Commission cannot
take disciplinary action under section 69, the corrective action that it
takes under that section cannot be grieved under the Public Service Labour
Relations Act. The appropriate remedy is, rather, an application for
judicial review before the Federal Court. Thus, labour law principles, such as
proportionality and progressive discipline, do not apply to corrective action
under section 69. Such corrective action must instead be reviewed using
the principles of administrative law, that is, it must be within the
jurisdiction of the Commission and be reasonable.
[52]
Similarly, the
corrective action contemplated in section 69 does not include imposing
criminal penalties on wrong-doing employees. That falls instead to the courts
of law acting under section 133 of the Act. However, nothing prevents the Commission
from disclosing the conclusions of its investigation to police authorities so
that they may decide whether they should conduct their own investigation and,
if appropriate, lay charges under section 133, having regard to the Canada
Evidence Act, R.S.C. 1985, c. C‑5; section 13 of the Canadian
Charter of Rights and Freedoms; and the criminal law burden of proof of beyond
a reasonable doubt.
[53]
In the present case,
the Commission submitted its report to the employer and to the Royal Canadian
Mounted Police, and it required the appellant to obtain its written permission
before accepting any position in the federal public service in the next three
years. In my view, these measures are entirely consistent with the letter and
the spirit of section 69 of the Act; they are within the Commission’s
jurisdiction and are reasonable in light of the circumstances of the case.
[54]
The measures taken by
the Commission do not prevent the appellant from applying for other positions
in the federal public service. If the appellant is required to obtain the
Commission’s permission beforehand, it is to ensure the integrity of the
appointment process by enabling the Commission to take a closer look at any
future application by her in order to, among other purposes, make sure there is
no fraud. The Commission also reserves the right, for a period of three years, not
to consent to the appellant accepting a position in the public service. This is
an additional corrective measure aimed at safeguarding the integrity of the
public service appointment process. The appellant does not have any right to a
new appointment in the public service, and the Canadian public is entitled to
expect that those who commit fraud will be excluded from the appointment
system, at least for a reasonable time. At stake here is the very credibility
of the merit-based appointment system, which remains one of the fundamental
values of the federal public service.
Second question: The fairness of the
Commission’s procedure
[55]
As the judge stated,
issues regarding the duty of fairness must be reviewed on the correctness
standard: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 43.
[56]
Section 70 of
the Act provides that in conducting any investigation under section 69 of
the Act, the Commission has all the powers of a commissioner under Part II of
the Inquiries Act, R.S.C. 1985, c. I‑11. That act
provides for two types of investigations. The first is described in Part I
thereof, which concerns inquiries that the Governor in Council requests “into
and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof” (section 2 of the Inquiries
Act). The second type of investigation is described in Part II of that
act, which concerns investigations relating to the state and management of the
business of a department, and the conduct of any person in the service of that
department, insofar as that conduct relates to the official duties of the
person (section 6 of the Inquiries Act). As Justice Cory noted in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System),
[1997] 3 S.C.R. 440, at paragraph 36, “[i]t is this second
type of inquiry that is more often specifically concerned with the conduct of
individuals”.
[57]
Since the second type
of investigation specifically concerns the conduct of individuals and is aimed
at, in the case of section 69 of the Act, making findings regarding
fraudulent conduct, the investigator’s duty of procedural fairness is
particularly demanding, even though the findings lead to corrective action that
can be neither disciplinary action, nor criminal penalties.
[58]
Moreover, section 72
of the Act gives a person whose appointment is at issue the right to make
representations to the person conducting the investigation. In addition,
section 13 of the Inquiries Act sets out a minimum duty of
procedural fairness toward a person who is under investigation:
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13. No report shall be made against any person
until reasonable notice has been given to the person of the charge of
misconduct alleged against him and the person has been allowed full
opportunity to be heard in person or by counsel.
|
13. La rédaction d’un rapport défavorable ne
saurait intervenir sans qu’auparavant la personne incriminée ait été informée
par un préavis suffisant de la faute qui lui est imputée et qu’elle ait eu la
possibilité de se faire entendre en personne ou par le ministère d’un avocat.
|
[59]
It is possible that,
in the case of an investigation under section 69 of the Act, the duty of
fairness demands more than the minimal requirements set out in section 13
of the Inquiries Act and section 72 of the Act. It will be up to
the federal courts to define this duty in other appropriate cases. For the
purposes of this appeal, we need only note that the Commission and its
investigator afforded the appellant a very high degree of procedural fairness
at every stage of the investigation.
[60]
Thus the appellant
was informed at the outset, in a letter dated June 5, 2009, that the Commission
would be conducting an investigation and that there were reasons to believe
that she herself had written, in whole or in part, the reference given by Ms. M’Kounga.
Moreover, a copy of the information that the Commission had received in this
regard was provided to the appellant on that same occasion.
[61]
The Commission also
informed the appellant that she had the right to be accompanied by a person of
her choosing during the investigation, and she availed herself of that right by
retaining a lawyer. I note in this regard that the record does not show that
the appellant asked for permission to cross-examine the witnesses who took part
in the investigation.
[62]
The investigator also
gave the appellant a copy of the compromising emails concerning her and invited
her to comment on them. The appellant had the opportunity to present her version
of the events before the investigator drafted the report on the facts, and she
met with the investigator with her counsel in attendance. The appellant
received a copy of the investigator’s preliminary report on the facts on
January 28, 2010, and she had the opportunity to comment on it. The
appellant also received a copy of the final investigation report. The appellant
was also given the opportunity to comment on the corrective action contemplated
as a result of that report.
[63]
Therefore, the judge
did not err in holding that the Commission and its investigator did not breach
the rules of procedural fairness in the course of the investigation.
Third question: Was the Commission’s decision
correct in light of the evidence gathered during the investigation?
[64]
As the judge noted,
the standard of review applicable to the Commission’s analysis of the evidence
is reasonableness: Dunsmuir, at paragraph 53.
[65]
In the present case,
the evidence in the record supports the Commission’s conclusions. The appellant
and Ms. M’Kounga could not clearly state where they had worked together,
and the emails entered in evidence show that the appellant and her mother
worked on drafting the favourable comments given by Ms. M’Kounga regarding
the appellant.
[66]
The appellant is
asking the Court to reconsider these emails and make its own findings of fact.
That is not the role of a reviewing court. In the present case, the role of the
judge with regard to this issue was limited to determining whether the
conclusions that the Commission drew from the evidence were within the range of
acceptable possible outcomes that are justifiable in light of the facts uncovered
in the course of the investigation. Considering the evidence adduced and the sensibleness
of the conclusions drawn from it by the Commission, the judge did not make any
reviewable error in holding that these conclusions were reasonable.
Other issues
[67]
On appeal, the
appellant raised two new issues that she had not raised before the Federal
Court, namely, the applicable burden of proof and the unreasonableness of the
corrective action imposed by the Commission. The respondent objected to having
this Court consider these two issues.
[68]
The reasons above dispose
of these two issues, regardless of whether or not they are validly raised before
this Court. As I have already noted, the applicable burden of proof is proof on
a balance of probabilities, and the corrective action in issue cannot be
likened to disciplinary action to which the labour law principles of
proportionality and progressive discipline apply. The additional grounds of
appeal raised by the appellant would therefore be without merit, regardless of
whether or not they were validly raised before this Court.
Disposition
[69]
In conclusion, for
the reasons set out above, I would dismiss the appeal with costs.
“Robert M. Mainville”
“I agree.
Marc
Noël J.A.”
“I agree.
J.D.
Denis Pelletier J.A.”
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