Chopra v. Canada (Treasury Board), 2006 FCA 295

Date: 20060906

Docket: A-351-05

Citation: 2006 FCA 295

CORAM:       LÉTOURNEAU J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

DR. SHIV CHOPRA

Appellant

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

AS REPRESENTED BY TREASURY BOARD

Respondent

Heard at Ottawa, Ontario, on September 6, 2006.

Judgment delivered from the Bench at Ottawa, Ontario, on September 6, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                    EVANS J.A.

Date: 20060906

Docket: A-351-05

Citation: 2006 FCA 295

CORAM:       LÉTOURNEAU J.A.

                        EVANS J.A.

                        MALONE J.A.

BETWEEN:

DR. SHIV CHOPRA

Appellant

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

AS REPRESENTED BY TREASURY BOARD

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on September 6, 2006)

EVANS J.A.

[1]               This is an appeal by Dr Shiv Chopra from a decision of Justice MacKay of the Federal Court dismissing an application for judicial review by Dr Chopra to set aside a decision of the Public Service Staff Relations Board. In that decision, an Adjudicator dismissed Dr Chopra’s grievance against a five-day suspension from work without pay, a penalty imposed on him for breaching the duty of loyalty owed by public servants to their employer.

[2]               The Judge’s decision is reported as Chopra v. Canada (Treasury Board), [2006] 1 F.C.R. 105, 2005 FC 958, and the Board’s as Chopra v. Treasury Board (Health Canada), 2003 PSSRB 115.

[3]               Dr Chopra is employed as a microbiologist and veterinarian in the Human Safety Division of the Veterinary Drugs Directorate of Health Canada. He was not an authorized spokesperson for Health Canada.

[4]               The reports of Dr Chopra’s public statements identified him as a scientist in Health Canada. They were critical of the Minister’s decision in the aftermath of “9/11” to stockpile drugs, including the powerful antibiotic, ciprofloxacin, for use in the event of a terrorist attack by the release of anthrax or smallpox viruses. Stockpiling these drugs was, he said, unnecessary.

[5]               He stated that anthrax was unlikely to be used by terrorists because it is not contagious and could be readily contained by other means. Consequently, the dangers to public health from the potential widespread use of ciprofloxacin by the public outweighed any harm from a possible bio-terrorism attack. In addition, he said, existing levels of vaccination were sufficient to protect the public against the possibility of a smallpox virus terrorist attack.

[6]               Dr Chopra was also reported to have described the Government’s policy as a public relations gesture designed to make the then Minister of Health “look good” by appearing to be prepared for an emergency, and was motivated by a desire on the part of the Government to use the war to “hit at the vulnerable”. These were the aspects of  Dr Chopra’s public statements on which MacKay J. focussed in upholding the Adjudicator’s decision that his suspension for misconduct in breaching his duty of loyalty did not violate his right to freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms.

[7]               MacKay J. held that these remarks could not be justified by reference to the topics identified in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455 at 470, on which public servants could speak out as exceptions to the duty of loyalty. He also held that the evidence before the Adjudicator from Dr Chopra’s supervisor and the nature of the allegations provided a sufficient support for the Adjudicator’s conclusion that Dr Chopra’s statements had impaired his ability to perform his duties by damaging both his relations with his supervisor and the public’s perception of his capacity to fairly and impartially implement government policy.

[8]               For substantially the reasons given by MacKay J., we are of the view that the Adjudicator made no error in upholding Dr Chopra’s suspension without pay that warrants the quashing of his decision.

[9]               In oral argument, counsel for Dr Chopra made two principal submissions. First, he argued that the Adjudicator had erred in law by making it an absolute requirement of a defence to an allegation of a breach of the duty of loyalty that employees must have pursued any internal recourse before going public with their criticism of government policy.

[10]           We do not agree. For one thing, as counsel conceded, it is not clear from the Adjudicator’s reasons that he made internal recourse an absolute requirement. Further, we agree with MacKay J. that the Adjudicator’s decision did not materially depend on his view that Dr Chopra should have availed himself of the relevant internal channels.

[11]           Second, counsel argued, in effect, that the evidence before the Adjudicator was insufficient to establish that Dr Chopra’s public statements had impaired his ability, or perceived ability, to perform his duties as a civil servant.

[12]           Again, we do not agree. Impairment of public servants’ ability to perform their functions is a matter within the labour relations expertise of an Adjudicator. The evidence of Dr Chopra’s supervisor that his public comments had increased tensions in their working relationship, as well as the nature of his allegations in impugning the Government’s motives for its policy, were sufficient, in our opinion, to sustain the Adjudicator’s findings of impairment on a standard of reasonableness.

[13]           For these reasons, the appeal will be dismissed with costs.

“John M. Evans”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-351-05

APPEAL FROM THE ORDERS OF THE FEDERAL COURT DATED JULY 8, 2005, DOCKET NO. T-103-04

STYLE OF CAUSE:                                                              Dr. Shiv Chopra v. Her Majesty the Queen in Right of Canada, as represented by Treasury Board 

PLACE OF HEARING:                                                        Ottawa, Ontario

DATE OF HEARING:                                                          September 6, 2006

REASONS FOR JUDGMENT OF THE COURT:             (Létourneau, Evans & Malone JJ.A.)

DELIVERED FROM THE BENCH BY:                            Evans J.A.

APPEARANCES:

SOLICITORS OF RECORD: