Date:
20161110
Docket: A-289-15
Citation: 2016 FCA 273
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CORAM:
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NOËL C.J.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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CHARBEL EL-HELOU
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Appellant
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and
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COURTS ADMINISTRATION SERVICE, LAURENT FRANCOEUR, FRANCINE COTÉ,
ERIC CLOUTIER, DAVID POWER, AND ÉRIC DELAGE
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Respondents
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REASONS FOR
JUDGMENT
NOËL
C.J.
[1]
This is an appeal and a cross-appeal from a
decision rendered by St-Louis J. (the Federal Court judge) allowing in part the
application for judicial review filed by Charbel El-Helou (the appellant) (Charbel
El-Helou v. Canada (Courts Administration Service), 2015 FC 685) against a
decision by the Public Sector Integrity Commissioner (the Commissioner) dismissing
the appellant’s reprisal complaints filed pursuant to the Public Servants
Disclosure Protection Act, S.C. 2005, c. 46 (the PSDPA).
[2]
The judgment rendered by the Federal Court judge
in order to give effect to her reasons is central to the discussion which
follows. For ease of reference, it is reproduced in Annex 1 to these reasons. The
relevant provisions of the PSDPA are set out in Annex 2.
[3]
The appellant and the individuals who are the
subject matter of the complaints were, at all material times, employees of the Courts
Administration Service (CAS), a government entity that provides administrative
support to the Federal Court of Appeal, Federal Court, Tax Court of Canada and
Court Martial Appeal Court of Canada. In the document setting out his
complaints, the appellant says he witnessed improprieties by certain employees
and disclosed them to his superior, Mr. Power, and suffered reprisals as a
result of making the disclosures.
[4]
At issue before the Federal Court judge was
whether the Commissioner committed a reviewable error in dismissing the
appellant’s complaints that he suffered reprisals as a result of the disclosures.
Also at issue was whether the Commissioner could reconsider a prior decision
allowing a complaint to proceed before the Public Servants Disclosure Protection
Tribunal (the Tribunal) and dismiss it, because of subsequently-obtained
information. The Commissioner held that while the principle of functus officio
did not allow him to dismiss that complaint, he was not prevented from taking,
before the Tribunal, a position adverse to the appellant, consistent with this subsequently-obtained
information.
[5]
The Federal Court judge intervened on this last
point, holding that the Commissioner was functus officio in all respects.
In paragraph 1 of the judgment, she allowed the judicial review in part. In
paragraph 2 of the judgment, she quashed the decision of the Commissioner to
take a position before the Tribunal that was adverse to his original
application. She otherwise upheld the decision of the Commissioner.
[6]
For the reasons which follow, I would dismiss
the appeal and I would allow the cross-appeal in part, striking paragraphs 1
and 2 of the Federal Court’s judgment. Paragraph 2 must fall: while the Federal
Court judge properly held that the Commissioner could no longer dismiss the
complaint, she erred in holding that the principle of functus officio prevented
him from altering his position before the Tribunal with respect to that
complaint. Paragraph 1 must also fall: none of the grounds advanced in the
notice of application against the Commissioner’s decisions succeed. Thus, I
would also dismiss the application for judicial review.
BACKGROUND
[7]
This is the second decision by the Commissioner concerning
the appellant’s reprisal complaints (Reasons, para. 3). The Commissioner’s first
decision, rendered April 18, 2011 (the first decision), dismissed two complaints
of reprisal and referred a third one to the Tribunal. The appellant’s
application for judicial review from that decision was allowed by Mactavish J.
in El-Helou v. Courts Administration Service, 2012 FC 1111 (El-Helou
#1).
[8]
The complaints at issue in the first decision
were that (Reasons, para. 23):
1. Mr. Francoeur asked Mr. Cloutier to obtain information about
the appellant’s management style, and solicited negative comments about him
from his subordinates while Mr. Cloutier was temporarily acting for Mr.
Francoeur;
2. Ms. Côté temporarily re-assigned the appellant to other duties
and removed his supervisory responsibilities; and
3. Mr. Delage withheld the appellant’s Top Secret security
clearance.
[9]
During the initial investigation, two additional
complaints were brought to the attention of the investigator (Appeal Book, vol.
I, p. 56). Although she did recommend that Mr. Power be added as an alleged
reprisor, these additional complaints were not made part of the investigator’s
report (Ibidem).
[10]
By the first decision, the Commissioner
dismissed complaints #1 and #2, but referred the third one to the Tribunal. He
did so on May 16, 2011 by filing an application pursuant to paragraph 20.4(1)(b)
of the PSDPA after having added the name of Mr. Power to that of Mr. Delage as
a target of this third complaint. The application filed by the Commissioner
sought a remedy in favour of the appellant and an order that disciplinary
action be taken against Mr. Power and Mr. Delage.
[11]
The appellant brought a judicial review
application against the Commissioner’s first decision, insofar as it dismissed
the first two complaints. This application was disposed of in El-Helou #1.
By that decision, Mactavish J. held that there had been a breach of procedural
fairness, namely that the appellant was “never made
aware of the substance of the evidence that had been obtained by the [first]
investigator” (El-Helou #1, para. 77). She also determined that
the investigation was not thorough because the investigator did not investigate
crucial evidence and a threat of additional security examination of the
appellant (El-Helou #1, paras. 84-86 and 91-95). Her judgment set aside
of the Commissioner’s first decision and remitted the matter back for
additional investigation in accordance with her reasons (El-Helou #1,
Judgment, para. 1).
[12]
This further investigation was conducted by a
different investigator (the second investigator). By letter dated January 30,
2013, the second investigator advised the appellant that she would consider the
information that the first investigator had collected in addition to the facts that
she would gather as they relate to the following complaints (Appeal Book, vol.
I, p. 270):
1. Mr. Cloutier was directed by Mr.
Francoeur to solicit employees for the purposes of securing negative
information about the appellant;
2. Ms. Côté temporarily re-assigned the appellant and removed his
supervisory responsibilities
3. Mr. Delage and Mr. Power withheld the appellant’s Top Secret
security clearance;
4. The appellant was asked to acknowledge having committed a
security breach in order to obtain a professional reference from Mr. Power; and
5. The appellant was asked to acknowledge having committed a
security breach in order to prevent a security investigation from occurring.
[13]
Complaint #3 was included as a subject matter of
the second investigation against the appellant’s objection. In a letter dated
January 21, 2013 addressed to the second investigator, the appellant took the
position that it would be inappropriate for the Commissioner to reconsider or
otherwise reinvestigate that complaint, given that it had already been referred
to the Tribunal (Appeal Book, vol. I, p. 258).
[14]
The second investigator produced a lengthy
preliminary report. This time around, the appellant had the opportunity to
comment on the preliminary report. Due to the extensive nature of the
appellant’s comments, the Commissioner requested that the second investigator
provide comments on them. The appellant was not made aware of this internal
process nor was he provided with the opportunity to review and respond to the
second investigator’s comments. The investigator then issued a final report,
which in large part duplicated her preliminary report.
[15]
The second investigator found no evidence that
the alleged reprisors were aware of the protected disclosures other than Mr.
Power to whom the disclosures had been made. She stressed that “[t]he information gathered during the course of the
investigation revealed nothing to suggest that Mr. Francoeur, Mr. Cloutier, Mr.
Delage or Ms. Côté were in fact aware of any such disclosures” (Appeal
Book, vol. I, p. 327). As a result, the second investigator concluded that complaints
#1, #2, and #5, insofar as they were made against those individuals, could not
have given rise to reprisals for the purpose of the PSDPA.
[16]
The second investigator further stated that the complaints
were either unfounded or explained by other factors. With respect to complaint
#1, the evidence did not support the allegation that Mr. Cloutier had canvassed
employees and solicited them for negative comments. The employees had come
forth on their own volition (Appeal Book, vol. II, p. 472). As for complaint
#2, both the appellant and Mr. Francoeur were reassigned from their positions
as part of an investigation of harassment (Appeal Book, vol. II, p. 473). The
report also noted that complaint #5 had to be considered in light of the
broader context relating to CAS’s responsibility for insuring compliance with
policies on government security (Appeal Book, vol. II, pp. 463-467; Reasons,
para. 20).
[17]
Despite Mr. Power possessing knowledge of the
protected disclosures, the information gathered during the investigation
revealed nothing to suggest that either of complaints #3 or #4 gave rise to
reasonable grounds to believe that a reprisal had occurred (Appeal Book, vol. II,
pp. 485-486). In revisiting complaint #3, the second investigator suggested
that not all of the information had been taken into account by the first
investigator and that, based on the information available to her, the Commissioner
should not have placed complaint #3 before the Tribunal (Appeal Book, vol. I,
pp. 331-334). The second investigator recommended that the Commissioner either
file a request to withdraw the pending application or accept that the Tribunal was
seized of it and amend the statement of particulars and the notice of
application that had been filed with the Tribunal to reflect the current
position (Appeal Book, vol. I, p. 344).
[18]
The decision rendered by the Commissioner as a
result of this second investigation is at the root of the present appeal (the
second decision). By that decision, rendered on August 23, 2013, the Commissioner
dismissed complaints #1, #2, #4, and #5, noting essentially that the
allegations were unfounded or that the person responsible for the measures
taken had no knowledge of the protected disclosures, and that Mr. Power, who
had this knowledge, had no involvement in the measures taken.
[19]
As to complaint #3, the Commissioner adopted the
alternative course of action proposed by the second investigator. He recognized
that insofar as this complaint was concerned, he was functus officio pursuant
to section 20.5 of the PSDPA, given that the Tribunal was seized of it. He
noted, however, that section 21.6 required of him, in proceedings before the Tribunal,
to take the position that is in the public interest. In light of the new, more
thorough investigation, the Commissioner stated that he no longer supported the
complainant’s allegation of reprisal insofar as it relates to complaint #3 and so
he no longer intended to seek from the Tribunal the remedy sought in the
application on the appellant’s behalf. In light of this, he asked for certain
directions from the Tribunal (Appeal Book, vol. II, pp. 421-422):
Subsection 21.6 of the Act requires
me to adopt in proceedings before the Tribunal the position that is in the
public interest having regard to the nature of the complaint. This duty
includes informing the Tribunal and the parties of any new facts or
circumstances that are relevant to the proceedings. By this letter, I hereby give
notice to the parties that I no longer support the Complainant’s allegation
that he suffered reprisals and that I do not intend to seek a remedy for the
Complainant or a disciplinary sanction against the two individuals named in the
Application. It would be contrary to the public interest for me to pursue this
allegation before the tribunal when the evidence does not support it.
Considering the Tribunal’s decision of
November 23, 2012 [in which the Tribunal suspended the proceedings], the Tribunal
still has jurisdiction over the matter and for this reason, I believe that my
authority to dismiss this allegation pursuant to section 20.5 of the Act
is functus officio. Accordingly, I seek directions from the Tribunal on
the next steps that may be necessary, including on my ability to withdraw the
Notice of Application or on any other process that may be required to address
this significant change in circumstances.
[20]
In response, the Tribunal issued a direction
requesting the Commissioner to file a motion setting out the relief requested
(Appeal Book, vol. II, p. 523), but in the interim, the appellant brought a
judicial review application against the Commissioner’s second decision, taking
issue both with the dismissal of complaints #1, #2, #4, and #5, and his decision
to withdraw his support with respect to the pending application pertaining to complaint
#3. On this last point, the appellant took the position that the Commissioner
was bound to pursue the position set out in the application as it was filed (application
for judicial review, Appeal Book, vol. I, p. 42, para. (b)). The proceedings
before the Tribunal, including the Tribunal’s invitation to the Commissioner to
file a motion, have been suspended pending the outcome of the present
proceedings.
FEDERAL COURT DECISION
[21]
In the course of her analysis, the Federal Court
judge identified three issues (Reasons, para. 43): did the Commissioner err in
law in reconsidering his decision to refer complaint #3 to the Tribunal for
adjudication; did the Commissioner arrive at his decision in breach of the
rules of procedural fairness; and did the Commissioner err in law by failing to
properly interpret and apply the PSDPA or the relevant principles concerning
the law of reprisals?
[22]
As to the applicable standard of review, the Federal
Court judge determined that correctness applied to both the interpretation of functus
officio principles (Reasons, para. 45) and to considerations of
procedural fairness (Reasons, para. 46). The Federal Court judge also
noted that deference was owed with respect of the choice of procedure (Reasons,
para. 46). Finally, reasonableness was to be applied to the Commissioner’s interpretation
and application of the PSDPA (Reasons, para. 47).
[23]
Dealing with the first issue, the Federal Court
judge concluded that because El-Helou #1 left the Commissioner’s
referral of complaint #3 to the Tribunal untouched, “the
Commissioner was indeed functus officio, and failing an order from [the
Federal Court], had no authority to revisit its finding” (Reasons, para.
63).
[24]
Relying on the Alberta Court of Appeal decision
in Schuchuk v. Alberta (Workers’ Compensation Board), 2012 ABCA 50, the Federal
Court judge held that the Commissioner had no authority to re-screen the
complaint and remained bound by his first decision. She thus rejected the
respondents’ argument that the Commissioner retained the authority to
reconsider the matter (Reasons, para. 63).
[25]
The judgment that she gave on this point sets
aside the Commissioner’s conclusion according to which he was not functus
officio under section 21.6 with respect to complaint #3. Although the
Federal Court judge does not address this question, paragraphs 1 and 2 of her
judgment can only be read as overturning this aspect of the Commissioner’s decision
as she otherwise agreed that he was functus officio pursuant to section
20.5 (Reasons, para. 63).
[26]
Turning to complaints #1, #2, #4, and #5, the Federal
Court judge rejected the appellant’s contention that there had been a breach of
procedural fairness in the process which led to their dismissal. She recalled
that in El-Helou #1, Mactavish J. identified the issues that needed to
be addressed in order to remedy the earlier flaws. She went on to hold that the
second investigator addressed them all (Reasons, para. 67).
[27]
The Federal Court judge also rejected the
appellant’s argument that the second investigator’s response to his own
comments had to be communicated to him and that the failure to do so had given
rise to a further breach of procedural fairness. Relying on IWA v. Consolidated-Bathurst
Packaging Ltd., [1990] 1 S.C.R. 282, 68 D.L.R. (4th) 524, the Federal Court
judge explained that, as the second investigator’s response revealed no new
fact or argument, no breach was committed. She explained that notwithstanding
the second investigator’s response, the substance of the case remained
unchanged and, therefore, the applicant’s right to comment on the substance of
the case had been fulfilled (Reasons, paras. 68-69).
[28]
The Federal Court judge also rejected the
appellant’s argument that procedural fairness required that he be provided with
a full summary of the evidence in the hands of the investigator (Reasons, para.
70); he had been given enough to address the substance of the case at this
stage. She also dismissed the appellant’s argument that the second investigator
had not been neutral and thorough (Reasons, para. 72).
[29]
Finally, the Federal Court judge was unable to
detect a reviewable error in the Commissioner’s conclusion that there were no
reasonable grounds to believe that reprisals were taken against the appellant.
Except for Mr. Power, none of the individuals knew about the protected
disclosures such that the measures complained of could not have occurred by
reason of the protected disclosures (Reasons, paras. 75-76). As for Mr. Power,
the Federal Court judge made no explicit finding. However, because the Federal
Court judge did not take issue with the Commissioner’s decision dismissing the
allegation made against him, it must be assumed that she found no reviewable
error in the second investigator’s reasoning on this point.
POSITION OF THE PARTIES
[30]
The respondents take a common position on both
the appeal and the cross-appeal, the individual respondents adopting the
memorandum of fact and law of CAS on the appeal, and CAS adopting the
memorandum of fact and law filed by the individual respondents on the
cross-appeal.
-
The appeal
[31]
The appellant agrees with the Federal Court
judge’s determination of the applicable standard of review while insisting that
a dismissal of a reprisal complaint, as opposed to a decision to refer the
matter to the Tribunal, should be scrutinized more intensely given the greater impact
of a dismissal on the rights of the appellant (appellant’s memorandum of fact
and law, paras. 28-30).
[32]
In support of his appeal, the appellant
reiterates the position that he took before the Federal Court judge and asserts
that the failure to give him the opportunity to respond to the investigator’s
response to his own comments resulted in a further breach of procedural fairness
(appellant’s memorandum of fact and law, paras. 31-50). The appellant further argues
that he was not provided with sufficient information with respect to the
witness statements (appellant’s memorandum of fact and law, paras. 51-55); that
the investigation lacked thoroughness because the investigator failed to assess
circumstantial evidence and did not take a hard look at the evidence; and that
the investigation was not neutral because the second investigator assessed his
credibility without assessing the credibility of others and argued against him
in her response to his comments (appellant’s memorandum of fact and law, paras.
56-67).
[33]
Finally, the appellant contends that the second
investigator, and by extension the Commissioner, applied the wrong test in determining
whether the existence of reprisal had been established. He maintains that the
test pursuant to section 20.4(3) of the PSDPA should be whether there is “some basis” to support the allegations of reprisal
(appellant’s memorandum of fact and law, para. 63).
[34]
In their response, the respondents do not
dispute that procedural fairness requires informing the complainant of the
substance of the case and providing him with an opportunity to comment on it. They
argue, however, that this requirement was met when the preliminary report was
provided to the appellant for comments (CAS’s memorandum of fact and law,
paras. 7-9). In so stating, the respondents stress that the second
investigator’s response added no fact or argument, and merely reiterated what
was said in her preliminary report (CAS’s memorandum of fact and law, para.
15).
[35]
The respondents further submit that the law did
not require the investigator or the Commissioner to provide the appellant with witness
summaries or to make express findings of credibility. The respondents point out
that the Commissioner took a hard look at the evidence and that mere
contradictory evidence does not trigger a referral to the Tribunal (CAS’s memorandum
of fact and law, paras. 27-36).
-
The cross-appeal
[36]
In their cross-appeal, the respondents challenge
the Federal Court judge’s conclusion that the Commissioner was functus
officio and, as a result, could not dismiss complaint #3. They first
contend that El-Helou #1 had the effect of setting aside the
Commissioner’s first decision in its entirety, including the referral of complaint
#3 to the Tribunal. It follows that the Commissioner had to revisit this complaint
regardless of any other consideration (memorandum of fact and law of the respondents/appellants
by cross-appeal, para. 28).
[37]
The respondents further argue that even if El-Helou
#1 did not set aside the Commissioner’s first decision insofar as it
relates to complaint #3, the doctrine of functus officio did not prevent
the Commissioner from reconsidering this decision in light of the change in
circumstances. They submit that the Commissioner misconstrued the doctrine of functus
officio in reaching the conclusion that the present case did not come
within one of the established exceptions (memorandum of fact and law of the respondents/appellants
by cross-appeal, paras. 52-55, quoting Chandler v. Alberta
Association of Architects, [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577 [Chandler]
and Chopra v. Canada (Attorney General), 2013 FC 644, paras. 64-66).
[38]
Indeed, according to the respondents, it can be
seen from El-Helou #1 that the whole of the Commissioner’s decision was
vitiated by the lack of procedural fairness. The result is that the
Commissioner’s decision to file an application before the Tribunal with respect
to complaint #3 was null and void, thereby authorizing the Commissioner to make
a fresh decision (memorandum of fact and law of the respondents/appellants by cross-appeal,
para. 60).
[39]
In response to the cross-appeal, the appellant maintains
that El-Helou #1 only dealt with complaints #1 and #2, since these were
the only two that were the subject of the notice of application for judicial
review in El-Helou #1. The appellant adds that nothing said by Mactavish
J. in her reasons in El-Helou #1 alters that view (memorandum of fact
and law of the appellant/respondent by cross-appeal, para. 26). It follows that
this decision El Helou #1 provides no authority for reconsidering
complaint #3.
[40]
Furthermore, according to the appellant, the Federal
Court judge correctly held that none of the exceptions to the doctrine functus
officio allowed the Commissioner to dismiss the complaint (memorandum of
fact and law of the appellant/respondent by cross-appeal, paras. 34-36). Even
if the Commissioner decided not to participate in the proceedings before the
Tribunal as a result of the additional information which he obtained, it
remains that the appellant has an independent right to pursue that application on
his own terms (memorandum of fact and law of the appellant/respondent by cross-appeal,
para. 38).
[41]
Finally, the appellant supports the Federal
Court judge’s conclusion that the Commissioner was functus officio in
all respects. Specifically, the appellant contends that the Commissioner’s view
that section 21.6 of the PSDPA allowed him to take a different position in the
pending application before the Tribunal is incorrect. The Commissioner had no
authority to investigate complaint #3 further since the Tribunal was already
seized of it (memorandum of fact and law of the appellant/respondent by cross-appeal,
paras. 39 and 40).
ANALYSIS AND DISPOSITION
[42]
The standard of review of a final
decision by the Federal Court on a judicial review is set out
in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013
SCC 36, [2013] 2 S.C.R. 559 [Agraira].
This Court must determine whether the judge selected the appropriate standard of
review for each issue and whether this standard was correctly applied. In
effect, the appellate court steps into the shoes of the lower court to focus
solely on the administrative decision (Agraira, para. 46).
-
The appeal
[43]
Although there is currently some uncertainty concerning
the standard of review for procedural fairness (Bergeron v. Canada (Attorney
General), 2015 FCA 160, paras. 67-71; Mission Institution v. Khela,
2014 SCC 24, [2014] 1 S.C.R. 502, paras. 79 and 89), it is not necessary to
resolve it here. I am prepared in this case to review the procedural fairness
issues on the standard most generous to the appellant, that of correctness.
[44]
As for all remaining issues, it is well
established that in the absence of an extricable question of law, mixed
questions of fact and law attract a review under the reasonableness standard (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para. 47 [Dunsmuir]).
[45]
The resolution of the appeal requires the Court
to determine whether the appellant was afforded procedural fairness in the
process which led to the Commissioner’s second decision and whether the
Commissioner’s second decision, to dismiss complaints #1, #2, #4, and #5, was
reasonable.
[46]
Turning to the first question, no one takes
issue with the fact that Mactavish J. in El-Helou #1 properly identified
the breaches of procedural fairness which occurred during the first
investigation. The issue therefore becomes whether these initial shortfalls
were remedied by second investigation that led to the second decision, and if
so, whether the additional procedural breaches alleged to have taken place during
the course of this second investigation provide grounds for setting aside the
second decision.
[47]
In this respect, the appellant correctly asserts
that he had to be informed of the substance of the case to be met in order to
allow him to provide a full response (Paul v. Canadian Broadcasting Corp,
2001 FCA 93, 198 D.L.R. (4th) 633, para. 43). He maintains that he was not given
this opportunity because he was not provided with the second investigator’s
response to his own comments.
[48]
In my view, the Federal Court judge correctly
held that the disclosure of the preliminary report allowed the appellant to
know the case which he had to meet (Reasons, paras. 69-70). The second
investigator’s response neither added to, nor modified, the substance of the
case contained in the preliminary report. Although the second investigator was
given the last word, I agree with the Federal Court judge that no unfairness
resulted from this given the content of the second response.
[49]
I am no more persuaded by the appellant’s
argument that he should have been provided with witness summaries. As noted by Mactavish
J. in El-Helou #1, the disclosure of witness summaries is an alternative
to the disclosure of the investigator’s report and this report was as complete
as can be (El-Helou #1, para. 76).
[50]
Further, in my view, the second investigation
was both neutral and thorough. The second investigator explicitly undertook to
remedy the procedural flaws identified by Mactavish J. She reviewed the
evidence gathered by the first investigator, conducted further interviews,
reconsidered all the complaints, and came to her own conclusions based on the
evidence. While it is clearly a source of frustration for the appellant that
the second investigation did not assist in furthering his claim of reprisal, I
can find no procedural flaw in the manner in which it was conducted.
[51]
The second issue underlying the appeal is
whether the dismissal of all the complaints, with the exception of the one
which had been referred to the Tribunal (complaint #3), was reasonable.
[52]
In determining whether a complaint should be
dismissed or pursued before the Tribunal, the Commissioner must determine
whether reasonable grounds exist for believing that a measure was taken against
a complainant as a result of a protected disclosure. Under section 2 of the
PSDPA, a “reprisal” is defined as measures “taken against a public servant because the public servant
has made a protected disclosure”. It follows that there must be a
connection between the protected disclosure and the alleged measures before a
measure can be viewed as a reprisal.
[53]
While the Commissioner acknowledged that his “task is not to determine whether or not the reprisals are
proven”, the evidence gathered during the investigation showed that none
of alleged reprisors, with the exception of Mr. Power, knew of the protected
disclosures (Appeal Book, vol. I, pp. 59-60). While the appellant questions the
Commissioner’s acceptance of the respondents’ evidence in arriving at this
conclusion, given that they were responding to damaging allegations, the second
investigator was mindful of their self-interest in gauging their response. It
was reasonable for the Commissioner to hold on this evidence that there was no nexus
between the disclosures to Mr. Power and the individual respondents’ conduct
and so complaints #1, #2, and #5 had to be dismissed.
[54]
It was also open to the Commissioner to find
that the evidence fell short of establishing that the measure impugned in complaint
#4 was related to the protected disclosures. Specifically, the evidence which he
found to be probative revealed that Mr. Power was under no obligation to
provide the appellant with a reference and that no promise had been made in
that regard (Appeal Book, vol. II, p. 477).
[55]
In my view, the Federal Court judge properly
concluded that the Commissioner’s dismissal of complaints #1, #2, #4, and #5
was reasonable.
-
The cross-appeal
[56]
The respondents’ contention in support of the
cross-appeal is that both the Federal Court judge and the Commissioner erred in
concluding that the doctrine of functus officio had any application in
this case. This error is first said to arise from a misconstruction of
Mactavish J.’s decision in El-Helou #1. Contrary to what they
understood, El-Helou #1 overturned the Commissioner’s first decision in
its entirety so that the Commissioner was bound to make a fresh determination
with respect to all complaints, including complaint #3.
[57]
This argument turns on the legal effect of Mactavish
J.’s judgment in El-Helou #1. The determination of the legal effect of a
judgment gives rise to a legal question, which is best addressed by the Court
which rendered the decision. The Federal Court judge found that the legal
effect of Mactavish J.’s judgment was limited to complaints #1 and #2. I see no
reason to disturb this finding.
[58]
In so holding, I need only refer to paragraph 2
of the reasons of Mactavish J. in El-Helou #1 which confirms this
understanding and to the wording of the notice of application as it was filed
before the Federal Court in that case (El-Helou #1, Federal Court, File
No. T-862-11). The wording of the notice of application is as follows:
This is an application for judicial review
in respect of the decision of the Public Sector Integrity Commissioner (made by
Interim Commissioner Mario Dion) made pursuant to section 20.5 of the Public
Servants Disclosure Protection Act (PSIC File No. 2009-R-607) on April 18,
2011 and received by the Applicant on April 19, 2011.
The decision concerned complaints of
reprisal filed by the Applicant in accordance with the Public Servants
Disclosure Protection Act. These complaints contained three allegations of
reprisal against employees of the Courts Administration Service who are the
named Respondents in this application. By the decision dated April 18, 2011,
the Commissioner decided to refer one aspect of the Applicant’s reprisal complaint
to the Public Servants Disclosure Protection Tribunal. However, two allegations
raised by the Application were dismissed by that decision. The decision to
dismiss these two allegations is the subject matter of this application for
judicial review. [Emphasis added]
[59]
The judgment of Mactavish J. provides in turn: “the application for judicial review is allowed” and “the April 18, 2011 decision is set aside…” (El-Helou
#1, para. 104).
[60]
This judgment when read in the light of the
notice of application leaves no ambiguity as to its ambit. The respondents
nevertheless point to paragraph 90 of the reasons in El-Helou #1 (memorandum
of fact and law of the respondents/appellants by cross-appeal, paras. 45 and 57)
which, in their view, contemplates complaint #3 (El-Helou #1, para. 90):
I note that the evidence of the former Chief
Administrator of CAS was relevant to the issue of the alleged withholding of
Mr. El-Helou’s Top Secret security clearance. Given that this issue has been
referred to the Tribunal for a hearing, the prejudice to Mr. El-Helou in this
regard was limited, but was not entirely eliminated in that Mr. El-Helou does
not have the benefit of notes or a transcript of an interview with the former
Chief Administrator as he heads into the Tribunal hearing.
[61]
I agree that this paragraph speaks to complaint
#3. However, in making this statement, Mactavish J. was merely saying that
because complaint #3 – in contrast with complaints #1 and #2 – had been
referred to the Tribunal, the prejudice suffered by the appellant as a result
of the flaws that she identified was more limited. It remained however that the
appellant might yet benefit from the disclosure which she ordered “as he heads into the Tribunal hearing” (El-Helou
#1, para. 90). These last words leave no doubt about the scope of Mactavish
J.’s decision. Although of the view that the further investigation might assist
the appellant by elucidating facts relevant to complaint #3, she left untouched
the Commissioner’s decision allowing this allegation to be adjudicated by the
Tribunal.
[62]
The remaining issue on the cross-appeal is whether
the Commissioner could alter his earlier decision with respect to complaint #3,
based on the new information revealed by the second investigation.
[63]
It is generally accepted that the question
whether a decision-maker has properly identified the functus officio principle,
and the applicable test, as set out by the Supreme Court in Chandler,
is reviewable on a standard of correctness (Canadian Association of Film
Distributors and Exporters v. Society for Reproduction Rights of Authors,
Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235, 378 D.L.R.
(4th) 72, para. 58).
[64]
Once identified, a different standard may be
called into play in ascertaining whether the test was properly applied (Capital District Health Authority v. Nova Scotia
Government and General Employees Union, 2006 NSCA 85, 271 D.L.R. (4th) 156, paras. 42; Elsipogtog First Nation v. Peters, 2012 FC
398, 407 F.T.R. 213, paras. 32-34; Canada (Attorney General) v. Canadian
Human Rights Tribunal, 2013 FC 921, paras. 35-37). If the decision is largely
fact-based, the standard is likely to be reasonableness (Dunsmuir, para.
53).
[65]
In Chandler, the Supreme Court recognized
that when an administrative tribunal renders a final decision in accordance
with its enabling statute, “that decision cannot be
revisited because the tribunal has changed its mind, made an error within
jurisdiction or because there has been a change of circumstances” (Chandler,
para. 21). The Court also recognized that an administrative tribunal is not functus
officio if it is authorized by statute to revisit an earlier decision (Chandler,
para. 22).
[66]
In this case, the Commissioner’s identification
and application of the functus officio principles led him to hold that
his authority to dismiss complaint #3 pursuant to section 20.5 was exhausted,
but that he was nevertheless authorized to adopt before the Tribunal a position
contrary to the application which he filed, pursuant to section 21.6.
[67]
Both parties take issue with this conclusion,
the respondents arguing that the Commissioner retained his authority to dismiss
the complaint pursuant to section 20.5, and the appellant asserting that he was
functus officio as to both sections 20.5 and 21.6.
[68]
Turning first to section 20.5, the respondents
argue that the Commissioner misconstrued the applicable principles when he held
that his authority to dismiss complaint #3 was exhausted. In this respect, the
Commissioner held, and the Federal Court judge agreed, that none of the Chandler
exceptions applied.
[69]
Like the Federal Court judge, I can detect no
error in the Commissioner’s conclusion. Once confronted with a complaint, the
Commissioner must either dismiss it pursuant to section 20.5, or allow it to
proceed before the Tribunal pursuant to section 20.4.
[70]
The Commissioner decided against the dismissal
of complaint #3. In reaching this conclusion, no slip or error of the type
described in Chandler was committed and I do not believe that the PSDPA can
be construed so as to allow the Commissioner to dismiss a complaint which has been
approved. If anything, the PSDPA points the other way. As the Commissioner
intimated, an application, once filed before the Tribunal, no longer belongs to
him. Subsection 21.6(1) makes it clear that, from that moment on, a complainant
acquires an independent right to pursue the application on his or her own
terms.
[71]
It follows that even though the Commissioner no
longer believes that the appellant is entitled to the remedy claimed, he does
not have the power to dismiss the complaint. Only the Tribunal retains the
authority to deal with it, after hearing all the parties concerned. In this
respect, the Commissioner’s revised position is no more determinative of the
outcome before the Tribunal than was his support for the application at the
time he filed it before the Tribunal.
[72]
Turning to section 21.6, the Commissioner
proceeded on proper principle when he asked whether this provision authorized
him to change his stance and adopt a position against the application that he
filed. In holding that it did, the Commissioner was construing his home statute.
In my view, reasonableness is the standard against which this aspect of the
Commissioner’s decision is to be reviewed (Dunsmuir, para. 54; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, para. 34).
[73]
Subsection 21.6(2) requires the Commissioner to “adopt the position that, in his or her opinion, is in the
public interest”. In my view, it was reasonable for the Commissioner to hold
that he could adopt a position adverse to the application that he had filed if,
in his opinion, the circumstances no longer supported the granting of a remedy
in the public interest. Looking at the matter the other way, the Commissioner
would be acting against the public interest if he were to support a complaint
of reprisal even though he was of the view that no reprisal had taken place. It
was therefore open to the Commissioner to reconsider his initial position and to
adopt one before the Tribunal that is consistent with the facts revealed by the
second investigation.
[74]
The appellant challenged this conclusion on
numerous grounds before the Federal Court (application for judicial review,
Appeal Book, vol. I, pp. 42-43, paras. (b) and (c)). However, the only ground advanced
on appeal insofar as section 21.6 is concerned is that the information which
led the Commissioner to change his position was gathered after complaint #3
became the subject matter of an application. The suggestion is that because the
Commissioner’s screening functions were exhausted, it would be inappropriate
for the Commissioner to rely on this information (memorandum of fact and law of
the appellant/respondent by cross-appeal, para. 39).
[75]
I accept that, as a general rule, the
Commissioner should not allow a complaint that has been referred to the
Tribunal to be investigated further. However, I do not believe that this
renders the Commissioner’s decision unreasonable on the facts of this case.
[76]
While as noted earlier, the appellant did object
to complaint #3 being further investigated, he could not object to the
investigation of the other complaints as they emanated from him. Given the
extent to which they are intertwined, I do not see how these complaints could
be investigated without eliciting information relevant to complaint #3. This is
what Mactavish J. had in mind in El-Helou #1 when she suggested that the
further investigation that she ordered – specifically the interview of the
former Chief Administrator of CAS – could impact the outcome of complaint #3 even
if it was no longer in the hands of the Commissioner (El-Helou #1, para.
90).
[77]
Given the ongoing investigation into the other complaints,
there is no principled reason by which the Commissioner should have turned a
blind eye to the new information gathered in the course of the second
investigation.
[78]
It was therefore reasonable for the Commissioner
to rely on this new information when deciding under section 21.6 to adopt a
position before the Tribunal that is adverse to the application that he had
filed and to amend the statement of particulars to reflect his current position.
DISPOSITION
[79]
For these reasons, I would dismiss the appeal
and allow the cross-appeal in part. Rendering the judgment which the Federal
Court judge ought to have rendered, I would strike paragraph 1 of her judgment
and replace it by a new paragraph reading: “1. The
application for judicial review is dismissed;” I would strike paragraph
2 and renumber the remaining paragraphs in the order in which they appear. Like
the Federal Court judge did in the matter before her, I would direct that the
parties assume their respective costs on the appeal.
“Marc Noël”
“I agree
David Stratas
J.A.”
“I agree
D.G. Near J.A.”
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