Docket: A-109-14
Citation: 2015 FCA 30
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CORAM:
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NADON J.A.
GAUTHIER J.A.
SCOTT J.A.
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BETWEEN:
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YACINE AGNAOU
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
SCOTT J.A.
[1]
Yacine Agnaou (the appellant) is appealing from
a decision rendered by Justice Annis (the judge) on January 27, 2014,
dismissing his application for judicial review of the decision made on
September 6, 2012, by Joe Friday, the Deputy Commissioner of the Office of
the Public Service Integrity Commissioner of Canada (Office of the PSICC), not
to investigate the disclosure made by the appellant under section 8 of the
Public Servants Disclosure Protection Act, S.C. 2005, c. 46, (the
Act).
[2]
For the following reasons it is my opinion that
the appeal must be dismissed since the judge did not commit any errors that
would call for this Court’s intervention.
I.
The facts
[3]
The factual background of this case covers
several years. Even though some of the facts are not directly relevant to the
appeal, they help us understand the context and the questions submitted by the
appellant to this Court.
[4]
The appellant worked as a federal Crown
prosecutor at the Quebec Regional Office (QRO) of the Public Prosecution
Service of Canada (PPSC) from 2003 onwards.
[5]
On January 24, 2006, the appellant was
assigned a case concerning a multinational company (File A) on which he
had worked previously and in respect of which he had recommended prosecution.
The appellant reviewed the case again and concluded that proceedings should be
instituted. At a meeting held on November 4, 2008, to discuss File A,
attended by the QRO’s general counsel and a deputy chief federal prosecutor,
the deputy chief federal prosecutor insisted that it would be premature to
institute criminal proceedings in this case since the Appeals Branch of the
Canada Revenue Agency (the CRA) was already dealing with a notice of objection
to reassessments issued with respect to A.
[6]
On December 1, 2008, the appellant told a
QRO manager that he had lost confidence in the management of the deputy chief
prosecutors as a result of the decisions the deputy chief prosecutors had made
since mid-September.
[7]
On December 24, 2008, no longer trusting
his supervisor, one of the deputy chief prosecutors, the appellant asked to be
assigned to a different supervisor, a request that was granted on
January 22, 2009.
[8]
On January 27, 2009, the appellant’s new
supervisor, a deputy chief prosecutor, asked him to carefully consider whether it
was in the public interest to prosecute in File A, knowing that the
appellant had to finalize his prosecution report in the following weeks. The
appellant inferred from this that QRO management’s objective was to prevent the
filing of criminal proceedings in this file.
[9]
On February 10, 2009, the appellant informed
the QRO’s general counsel of his final recommendation to institute criminal
proceedings in File A. A number of meetings involving the appellant’s
former supervisor (in her capacity as the head of the CRA portfolio), the
appellant’s new supervisor, and the general counsel followed on February 10,
12 and 24, 2009. One of the issues focussed on at these meetings was the CRA’s objection
to the relevance of filing criminal charges in File A, as recommended by
the appellant.
[10]
On March 4, 2009, the appellant was
informed of his managers’ decision not to institute criminal proceedings in File A.
Once again, he told his superiors that if this position was final, he intended
to appeal to the PPSC’s senior levels.
[11]
On March 24, 2009, the appellant learned
that the General Counsel Committee had met on March 9 without inviting him
to defend his point of view. Upon discussion, the Committee recommended not
authorizing criminal proceedings in File A.
[12]
On April 1, 2009, the chief prosecutor met
with the appellant. The appellant reiterated his position and, for a last time,
presented his written arguments against the Committee’s opinion not to
institute criminal proceedings in File A. The QRO’s chief prosecutor
upheld his decision, and the CRA was informed of it.
[13]
The appellant argues that, on April 1, the chief
prosecutor had not studied all his written arguments since it was not until
April 4 that the chief prosecutor could have reviewed the appendices to
his brief on why criminal proceedings should be instituted in File A.
[14]
The appellant was removed from File A and
was convened by his superiors, who were concerned about his health. They asked
that he undergo medical tests in order to assess his fitness to work.
[15]
On June 9, 2009, the appellant contacted
the Office of the PSICC in order to inquire about the procedure to be followed
and the criteria that had to be satisfied at the admissibility review stage for
complaints filed under the Act.
[16]
More than two years later, on October 13,
2011, the appellant filed a complaint with the Office of the PSICC under
paragraphs 8(a) and 8(c) of the Act. He claimed that his
superiors prevented him from filing criminal charges in File A thus
undermining the integrity of Canada’s objective system of prosecution, as
described in PPSC policies. He also argued that his superiors used the regulations
made under the Canada Labour Code, R.S.C. 1985, c. L-2 (Canada
Labour Code), concerning the prevention of violence in the workplace, to
break down his resistance.
[17]
On September 6, 2012, the appellant
received the Deputy Commissioner’s decision not to investigate. He then
contacted PSICC employees, by telephone or email, on several occasions.
[18]
However, it was not until January 2013 that
the appellant filed a written complaint with the Office of the PSICC regarding
the reprisals taken against him by numerous managers by reclassifying a
position for which he claimed priority.
II.
Deputy Commissioner Friday’s September 6,
2012, decision
[19]
Deputy Commissioner Friday made the decision in
this case because Commissioner Dion recused himself because he knew some of the
people mentioned in the appellant’s allegations.
[20]
The Deputy Commissioner first rejected the
complaint made under paragraph 8(a) of the Act on the ground that
violations of sections 231.2, 231.6 and 238 of the Income Tax Act, R.S.C. 1985,
c. 1, (5th Supp.) (Income Tax Act), concern the obligation of taxpayers
to provide documents or information or foreign-based information or documents
and do not concern an obligation of the QRO management. He concluded as
follows: [translation] “Consequently, paragraph 8(a) cannot therefore be
applied to potential wrongdoing committed by the managers of the QRO for the purpose
of an investigation initiated by the Office of the Public Service Integrity
Commissioner”.
[21]
He based his refusal to investigate on the
portion of the complaint made under paragraph 8(c) and
paragraphs 24(1)(e) and (f) of the Act since the subject-matter
of the appellant’s disclosure related to a matter that resulted from a balanced
and informed decision-making process on a public policy issue that did not
suggest that any wrongdoing had been committed nor did it suggest that this was
a case of gross mismanagement by the Director of the PPSC, by the Assistant
Deputy Attorney General of the Tax Law Services Portfolio, Justice Canada, or
by the counsel reporting directly to the Director of the PPSC, Mr. Dolhai and
Ms. Proulx.
[22]
The Deputy Commissioner also rejected the
appellant’s allegation that the QRO’s actions and decisions constituted gross
mismanagement because they violated the principle of equality before the law. Citing
the Federal Prosecution Service Deskbook, the Deputy Commissioner noted
that while Crown counsels enjoyed a large measure of independence, they did not
have absolute discretion. He found that the QRO’s chief prosecutor was
authorized to decide not to institute criminal proceedings in File A because
he had all of the necessary information on April 4, 2009, despite the
appellant’s opinion to the contrary.
[23]
The Deputy Commissioner also concluded that the
information provided by the appellant did not suggest that the QRO’s practices,
with respect to the decision not to involve him in the final decision as to
whether or not to institute criminal proceedings in File A, constituted
gross mismanagement within the meaning of the Act. According to the Deputy
Commissioner, the same applied to the interest taken by the appellant’s
immediate superiors in File A.
III.
The judicial review decision dated January 27,
2014
[24]
The judge rendered his decision on
January 27, 2014. He dismissed the appellant’s application for judicial
review because he felt that the Deputy Commissioner did not err when he decided
not to investigate on the ground that the subject-matter of the disclosure related
to a matter that resulted from a balanced and informed decision-making process.
[25]
The appellant argued that some aspects of the Deputy
Commissioner’s decision should be reviewed on a standard of correctness given
the errors made in interpreting the Act. For the Deputy Commissioner’s decision
not to commence an investigation under paragraph 24(a) of the Act,
the judge applied the standard of reasonableness, citing the Federal Court’s
decision in Detorakis v Canada (Attorney General), 2010 FC 39, [2010]
F.C.J. No. 19 [Detorakis]. Regarding the alleged breaches of procedural
fairness and natural justice, the judge applied the standard of correctness.
[26]
The judge rejected the appellant’s arguments
that the Deputy Commissioner breached procedural fairness by not giving him an
opportunity to comment on the findings of the analysis of the admissibility of
his disclosure before confirming the recommendation not to investigate. The
appellant cited El-Helou v Court Administration Service, 2012 FC
1111, [2012] F.C.J. No. 1237 [El-Helou], to submit that, in the present
proceeding, similar to the circumstances in El-Helou, he was told that
he would be able to comment on the report before the final decision on whether
or not to commence an investigation was made.
[27]
The appellant further claimed that given the
quasi-constitutional nature of the Act, procedural fairness guarantees were raised.
The respondent argued that little was required under the procedural fairness
duty in this case and that the appellant could not demand that a hearing be
held, a face-to-face meeting be convened or a preliminary investigation be
conducted.
[28]
The judge, however, even though he acknowledged
that the human rights case law could provide guidance, did not find that El-Helou
applied in this instance. The judge rejected this argument on the ground that
no promise had been made to the appellant that he would be able to comment on
the analyst’s report.
[29]
The judge did not consider the appellant’s
arguments, those being that the Deputy Commissioner failed to personally review
all of the facts submitted, that his French was not good enough for him to
understand the case and that he had failed to consider the entire factual
framework submitted by the applicant, to be serious enough to analyse them (see
paragraph 27 of the judge’s reasons).
[30]
Citing Detoraki, which stands for the
principle that the scope of the Commissioner’s discretionary power under
paragraph 24(a) of the Act is extremely wide and calls for
deference, the judge applied the standard of reasonableness to conclude that
the case at bar was clearly the result of a difference of opinion between the
applicant and his superiors and not of wrongdoing. Thus, he refuted the appellant’s
position that the Deputy Commissioner had not provided adequate reasons in his
decision in light of the facts presented since he had omitted whole sections of
the factual background, particularly, PPSC managers’ use of the Canada
Labour Code regulations concerning the prevention of violence in the
workplace. At paragraph 34 of his reasons, the judge, referring to Détorakis,
also recognized that the Commissioner should only refuse to hold an
investigation [translation] “at this early stage if the case is plain and obvious”.
[31]
The judge therefore concluded that the
appellant’s application for judicial review should be dismissed.
IV.
Analysis
A.
Applicable standard of review
[32]
In an appeal from a decision on an application
for judicial review, this Court has to determine first whether the judge
identified the proper standard of review and then whether he or she applied it
correctly (see Telfer v. Canada (Revenue Agency), 2009 FCA 23,
[2009] F.C.J. No. 71, leave to appeal to the Supreme Court denied, 33095 (June 11,
2009), at paragraphs 18 and 19). If the judge did not identify the correct
standard, the Court has to review the impugned decision and apply the proper
standard of review (see Dr. Q v. College of Physicians and Surgeons of
British Columbia, 2003 SCC 19; [2003] 1 S.C.R. 226 at paragraph 43).
[33]
This appeal raises four questions:
[1] Did the judge err in applying the reasonableness standard to the Deputy
Commissioner’s decision to reject the appellant’s disclosure under
paragraphs 24(1)(e) and (f) of the Act?
[2] Did the judge err in his determination of the procedural fairness
guarantees owed to the appellant in the treatment of his disclosure?
[3] Did the judge err in his assessment of the factual background and
the issues submitted by the appellant?
[4] Did the judge err in concluding that the Deputy Commissioner’s
decision was reasonable?
B.
Did the judge err in applying the reasonableness
standard to the Deputy Commissioner’s decision to reject the appellant’s
disclosure under paragraphs 24(1)(e) and (f) of the Act?
[34]
The appellant argues that this matter is
reviewable on correctness as the appeal raises questions of law that are of
general interest to the legal community and concerns public policy or
quasi-constitutional issues. The appellant also points out that the Act does
not contain a privative clause and that the Office of the PSICC does not have
specialized experience even though it has to interpret its home statute. He
further cites a previous report of the Auditor General of Canada to argue that the correctness standard must apply in order for the public to have
confidence in the Office of the PSICC’s decisions.
[35]
In reply, the respondent claims that the judge
chose the reasonableness standard in accordance with Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], which holds that an
exhaustive analysis is not required in every case to determine the proper
standard of review if the case law has already established this standard. In
the case at bar, the judge applied the standard of reasonableness in citing Detorakis.
In our opinion, the judge did not err in citing this decision to review the
Deputy Commissioner’s decision and his findings of fact against the reasonableness
standard. The judge’s decision is entirely consistent with the doctrine of the
Supreme Court propounded at paragraphs 57 and 62 of Dunsmuir, as
noted by the respondent.
[36]
The judge applied the correctness standard to
the issues raising natural justice and procedural fairness, and the respondent
does not challenge this choice. I am satisfied that the judge did not err in
choosing this standard as being the correct one in this case.
C.
Did the judge err in his determination of the procedural
fairness guarantees owed to the appellant in the treatment of his disclosure?
(1) Procedural fairness
[37]
First, the appellant claims that the judge erred
when he concluded that procedural fairness had not been breached. In his
opinion, the procedural fairness duty cannot be minimalist under the Act given
its public interest character and given the instructions in the Office of the
PSICC’s manual.
[38]
He alleges that, at the complaint admissibility
review stage, the procedural fairness requirement is the same for the Office of
the PSICC as it is for the Canadian Human Rights Commission. He cites, inter alia, El-Helou, where Justice MacTavish
of the Federal Court recognized that the case law developed in disputes brought
before the Canadian Human Rights Commission can be very helpful when it comes
to determining whether a party has been treated fairly.
[39]
In addition, the appellant argues that, contrary
to what the judge said, the fact that the Deputy Commissioner invited him to
submit any additional information that might have an impact on the analysis
that had been performed cannot make up for the breaches of procedural fairness
that undermined the September 6, 2012, decision not to investigate the
disclosure.
[40]
According to the appellant, this practice places
the discloser in a new decision-making process, being that of a reconsideration
of an administrative decision, in other words does he intend to have the
decision resulting from the additional information he would have submitted,
subject to review.
[41]
The appellant also argued before us that the employees
of the Office of the PSICC had promised to afford him an opportunity to comment
on their analysis of the complaint before a final decision was made. He
therefore submits that he had a legitimate expectation. He relies mainly on his
email dated September 10, 2012, in which he recounts a telephone
conversation from late April 2012 with Ms. Harrison, the analyst from
the Office of the PSICC assigned to his complaint (see Appeal Book,
Volume 1, Exhibit R-12, affidavit of Yacine Agnaou).
[42]
The appellant alleges that, as in El-Helou,
he should have been allowed to comment on the analysis before the Deputy
Commissioner made his decision given the promise made by the Office of the
PSICC analyst.
[43]
The respondent argues that the content of the
procedural duty was minimal in this case and that the appellant could not
require that a hearing be held, a face-to-face meeting be convened or a
preliminary investigation be conducted. In citing Detorakis, it submits
that the procedural fairness duty under paragraphs 24(1)(e) and (f)
of the Act does not require the holding of a hearing, for a number of reasons. First,
the respondent agrees with the judge’s position that El-Helou is distinguishable
from the facts of the present case since, in that case, the Commissioner
decided to move to the investigation stage during which third parties had
provided information. This was not the situation here.
[44]
The respondent also notes that the discretion
under paragraph 22(b) of the Act does not require that the
Commissioner convene a face-to-face meeting or conduct a preliminary
investigation, as stated in Detorakis. According to the respondent, the
Commissioner is not required to hear the discloser under the Act. Where
necessary, he may request further information or clarifications, but that does
not oblige him to share his analysis with the discloser before making his decision.
[45]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 [Baker],
at paragraphs 21 and 22, the Supreme Court of Canada sets out the
principle that the duty of procedural fairness is flexible and variable and
depends on the context of the particular statute and the nature of the rights
at issue. In Detorakis, the Federal Court judge analyzed the factors set
out in Baker to conclude, at paragraph 106, that “[the Act] does not require that someone making a disclosure
under section 13 has a right to be heard or a right to make further submissions
after the complaint has been made”. I see nothing in the present
proceeding that would cause us to challenge this conclusion.
[46]
It is important that we review certain facts
given the appellant’s argument that he was promised that he would be able to
comment on the analyst’s report.
- On October 13, 2011, the appellant personally filed a very
detailed complaint with Ms. Vienneau of the Office of the PSICC. The
complaint included the following: his duly completed eight-page wrongdoing
disclosure form (Exhibit R-6, Appeal Book, Volume 1, page 106);
the affidavit of Yacine Agnaou idem, page 106); a 36-page brief
of his allegations (Exhibit R-7, idem, page 114); and 86 appendices
to the brief, submitted electronically (Exhibit R-8, idem, page 150).
- When he filed his complaint, Ms. Vienneau confirmed to him
that he would be given an opportunity to clarify the facts before the
Commissioner made his decision and told him what would happen next (paragraphs 22
and 23 of the appellant’s affidavit, Appeal Book, Volume 1, page 53),
as follows:
a. An initial assessment was to be performed to ensure that the
disclosure was admissible;
b. Where applicable, an analyst was to perform an in-depth review of
the documents supporting the disclosure;
c. The analyst’s report together with his recommendation was to be
submitted to legal counsel;
d. Once considered, the legal counsel’s opinions and the analyst’s
report and recommendation, be it amended or not, were to be submitted to the
Operations Branch, which had to decide whether or not to agree with the
analyst’s recommendation;
e. The entire disclosure file, including the analyst’s report and
recommendation and the Operations Branch’s recommendation would be submitted to
the Commissioner for a final decision.
- Moreover, in his
affidavit, at paragraph 25 (Appeal Book, Volume 1, page 54),
the appellant stated as follows: [translation]
“Before Ms. Harrison began her review, we
spoke on the telephone together, at which point I was able to again
reassure myself that I would have an opportunity to provide clarifications
if the decision not to commence an investigation was made”.
[47]
The appellant also filed Exhibits R-15 and
R-17, obtained under Rule 317 of the Federal Courts Rules (SOR/98-106).
The first of these internal Office of the PSICC documents lists in
chronological order each intervention of the Office of the PSICC in the
complaint file and each telephone call received from the appellant. The second
document, Exhibit R-17, comes from Ms. Harrison, the analyst assigned
to the case. The document is a summary of the appellant’s concerns and
allegations as confirmed and expressed in a 90-minute telephone conversation
that took place on May 8, 2012.
[48]
In reviewing the file, I note that both
Ms. Harrison and Ms. Vienneau fulfilled the commitments they made to
the appellant.
[49]
Ms. Vienneau had promised him that he would
be able to clarify any facts before a decision was made in his case (paragraph 22
of the appellant’s affidavit, Appeal Book, Volume 1, page 53). In my
opinion, the appellant had an opportunity to do so when he spoke with the
analyst for 90 minutes on May 8, 2012 (Exhibits R-15 and R-17, Appeal
Book, Volume 2, pages 243 and 250). The file reveals that, on this occasion,
the appellant was able to confirm his understanding of the essential facts and
even clarify some additional items (Exhibit R‑17, Appeal Book, Volume 2,
page 251).
[50]
Regarding the second commitment, the appellant alleges
that the analyst, Ms. Harrison, had promised that it would be possible to
make clarifications if the decision not to investigate was made. The file
reveals that this conversation with the analyst took place in May and not in
April as the appellant claims (Exhibit R-15, Appeal Book, Volume 2, page 243).
In my opinion, what we have here is a misunderstanding. Ms. Harrison’s
commitment was limited to the appellant having the opportunity to provide new
information once the decision not to investigate was made, i.e., after
the decision was made. The appellant understood that there was a commitment but
before the decision was made.
[51]
It should be noted that the appellant was
afforded this opportunity in the decision letter dated September 6, he was
told that he could request a reconsideration.
[52]
The Office of the PSICC manual provides for the
option of applying for reconsideration. The Commissioner has defined parameters
for reconsideration that seem reasonable. The appellant explored this avenue
upon receipt of the decision letter, but chose not to pursue it. It should also
be noted that the Office of the PSICC manual does not provide for the option of
commenting on an analyst’s report recommending not to investigate before a
decision is made.
[53]
To give rise to a legitimate expectation, the
promise must be clear, unambiguous and unqualified. In the light of this
evidence, the judge could conclude that no promise had been made to the
appellant that he would be able to comment on the analyst’s report before a
decision was made, and, in any event, the Deputy Commissioner invited him to
provide additional comments after informing him of the decision, which led the
judge to reject the appellant’s arguments. In short, the appellant was mistaken
about what was said by his analyst, Ms. Harrison.
[54]
Lastly, I cannot agree with the appellant’s
argument that the judge erred with respect to the scope of the Office of the
PSICC’s procedural fairness duty. As stated by the judge in this case, the Office
of the PSICC did not receive any information from third parties. Even though the
case law of the Canadian Human Rights Commission can sometimes provide guidance
on procedural fairness at the complaint admissibility review stage in
disclosure cases, the necessary adjustments must nonetheless be made. In my
opinion, therefore, the judge correctly considered the absence of any
third-party information in order to conclude that the appellant was not
entitled to receive a copy of the analysis before the decision was made.
D.
Did the judge err in his assessment of the
factual background and the issues submitted by the appellant?
[55]
The appellant argues that the trial judge made
three fundamental errors in assessing the facts as he failed to consider the
following in his decision:
•
The abnormality of the process followed by the
managers of the PPSC;
•
The use by PPSC managers of the Canada Labour
Code regulations aimed at preventing violence in the workplace; and
•
The manipulation of the complaint process
provided for in the Treasury Board policy on harassment in the workplace.
[56]
The appellant specifically cites paragraph 35
of the judge’s decision to maintain that the judge erred when he concluded to
an honest difference of opinion between an employee and his supervisor, which
he would have admitted. From his perspective, the judge ignored a number of
facts suggesting that the decision not to institute criminal proceedings in File A
constituted wrongdoing since the PPSC modus operandi violated sections 231.2, 231.6 and 238 of
the Income Tax Act and chapters 4, 8, 11 and 15 of the Federal
Prosecution Service Deskbook. The appellant also notes the constitutional
principle that Crown counsels are free to exercise their prosecutorial
discretion objectively and independently and the principle prohibiting the
Crown from exempting a person from the operation of a statute.
[57]
The respondent invokes the judge’s analysis in paragraphs 36
and following of the decision to counter this position. In reply to the fact
that the judge ignored PPSC managers’ use of the Canada Labour Code
regulations aimed at preventing violence in the workplace, counsel for the
respondent pointed out at the hearing that the appellant had clearly stated at
paragraph 10 of this complaint brief that [translation]
“[n]one of the allegations in this disclosure is meant
to establish wrongdoing on the part of anyone against myself. This aspect of
the facts has already been deal with in other forums”. The respondent
submits that, in the light of this admission, the appellant cannot criticize
the judge for not commenting on this aspect of the facts.
[58]
Having carefully reviewed the appeal record, the
Deputy Commissioner’s decision and the Court’s decision, I cannot agree with
the appellant’s argument for the following reasons.
[59]
In Newfoundland and Labrador Nurses' Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708, the Supreme Court of Canada, at paragraph 16, propounds the principle
that “[a] decision-maker is not required to make an
explicit finding on each constituent element, however subordinate, leading to
its final conclusion”.
[60]
Upon rereading the judge’s decision, I find that
he addressed the essential factors and that he did not have to review each
element of the factual background and comment on it to reach his main
conclusion that at issue was a difference of opinion. The judge noted at
paragraph 36 that the applicant alleged gross misconduct on the part of
his superiors, but he added “even if I accept this
gross misconduct as being true”. It can therefore not be said that the
judge completely ignored the factual background as he accepts the misconduct
alleged by the appellant as established. Even though the judge erred on the
fact that the appellant acknowledged that the dispute was the result of a
difference of opinion between an employee and his superiors, the evidence on
file nonetheless allowed him to reach this conclusion.
[61]
The appellant also criticizes the judge for
ignoring the questions of law he presented at the hearing. More specifically,
the judge did not address the lawfulness of the delegation of the Deputy
Commissioner, who did not have the necessary language skills and who, in fact,
sub-delegated the final decision to the analyst and to counsel. The appellant
alleges that the judge did not address a further breach of procedural fairness,
the Office of the PSICC’s taking 11 months to render a decision in his
case.
[62]
On the face of the record, it is my opinion that
the judge did not err given the absence of compelling evidence regarding the Deputy
Commissioner’s language skills. The judge did not have to consider vague,
merit-less allegations.
[63]
The same is true of the delay between the filing
of the complaint and the decision, especially as Exhibit R-8 filed in
support of the appellant’s affidavit clearly establishes that the appellant was
well informed about the delays incurred throughout the process.
[64]
Lastly, as noted by the respondent, the Federal
Court propounded the following principle in Persons Seeking to Use the
Pseudonyms of John Witness and Jane Dependant v. Canada (Commissioner of the
Royal Canadian Mounted Police), [1998] 2 F.C. 252, 138 F.T.R. 176 at
paragraph 18:
The jurisprudence is clear, then, that a
decision maker in the position of the Commissioner may use someone else to
write reasons for his decision providing he retains control of the decision-making
process and providing that such decision written by another "not . . .
create an appearance of bias or lack of independence".
[65]
In the present case, a review of Exhibit R-15
filed in support of the appellant’s affidavit reveals that the Deputy
Commissioner had the file before him when he made the decision, which he
confirmed in his letter dated September 13 and in his email dated
September 26 in response to the appellant’s questions in this respect. The
Deputy Commissioner was therefore able to review the analyst’s conclusions
while retaining control of the decision-making process.
[66]
The appellant also argues that the Commissioner
may exercise his discretion not to commence an investigation only “if the case is plain and obvious”. The judge accepted that
argument without explanation at paragraph 34 of his reasons (see
also paragraph 25). I disagree.
[67]
If I apply the modern rules of statutory
interpretation (see Ruth Sullivan, Sullivan on the Construction of Statutes,
5th ed. (Markham, Ontario: LexisNexis Canada Inc., 2008)), I am satisfied,
following a careful reading of the words of section 24 of the Act in view
of 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, that one cannot conclude that the Commissioner could refuse to
investigate only if the case was plain and obvious, as is the case under
section 41 of the Canadian Human Rights Act, R.S.C. 1985, c.
H-6 (Human Rights Act).
[68]
In fact, a comparison of the language used in
section 41 of the Human Rights Act and the wording of paragraphs 24(1)(e)
and (f) of the Act reveals clear differences. The French version of
section 41 states that “la commission statue”,
using the present tense, while the English version indicates that the
Commission “shall deal”, meaning that there is
no discretion unless one of the exceptions described in paragraphs (a)
to (e) applies.
[69]
In the case of section 24 of the Act,
Parliament provides as follows: “Le commissaire peut refuser de donner suite à une
divulgation ou de commencer une enquête”. The
English version is just as clear, as it reads: “The Commissioner
may refuse to deal”. The comparison between the two statutory provisions
leads me to conclude that the principle set out in section 41 of the Human
Rights Act according to which the Canadian Human Rights Commission may only
refuse to intervene in plain and obvious cases cannot apply to the Integrity
Commissioner who enjoys much broader discretion under subsection 24(1). Discretion
cannot be compared with a statutory duty.
[70]
Section 24 of the Act sets out a number of situations
in which an investigation can be denied, as mentioned by Justice Gauthier at paragraph 59
of her reasons in appeal docket No. A-110-14, published under citation 2015
FCA 29. I fully agree with Justice Gauthier, who emphasizes the very broad
discretion enjoyed by the Commissioner under section 24 of the Act in
deciding whether or not to investigate a disclosure.
E.
Did the judge err in concluding that the Deputy
Commissioner’s decision was reasonable?
[71]
I have concluded above that the judge correctly
applied the standard of reasonableness in the case at bar in the light of the
doctrine of the Federal Court and in the absence of valid reasons for departing
from this standard. It remains to be determined whether the appellant correctly
argued that it was unreasonable not only for the judge but also for the Deputy
Commissioner to conclude that the wrongdoing of which he accused his superiors
merely constituted the application of a balanced and informed decision-making
process.
[72]
The judge considered the factual background and
particularly the many exchanges regarding File A between the appellant and
his superiors in order to conclude that the appellant was able to express his
opinion; and he accepted the misconduct as being true. He did, however, focus
on the fact that the discretion of Crown counsel to institute proceedings is
not absolute, as indicated in the Federal Prosecution Service Deskbook
on which the Deputy Commissioner relied in part to reach his conclusion.
Finding no fault with the procedure followed by the manager, the judge
concluded that at issue was a difference of opinion on the outcome of
File A between the appellant and his superiors.
[73]
I must reject the appellant’s position according
to which the Deputy Commissioner required the appellant to establish that wrongdoing
had been committed and that both the Deputy Commissioner’s decision and that of
the judge were consequently unreasonable. Neither the Deputy Commissioner nor
the judge required this. In fact, a close reading of the Court’s decision and
of the Deputy Commissioner’s decision suggests that there truly was a
difference of opinion between the appellant and his hierarchical superior on
how File A should be dealt with.
[74]
Similarly, it is undeniable that the appellant
put in an impressive amount of work into File A, which would explain why
his superiors also reviewed it, in order to ensure that he had remained
objective. It is not unusual to take a step back and to seek the opinion of
other experienced counsel before making a decision in such an important case.
[75]
In the present case, the judge could conclude
that the Commissioner’s decision was reasonable given that the existence of an
honest difference of opinion and the Deputy Commissioner’s conclusion not to
investigate under paragraph 24(1)(e) fall within a range of
possible outcomes: “[r]easonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, paragraph 47).
I conclude that the judge applied the reasonableness standard correctly.
[76]
I therefore propose that the appeal be dismissed
with costs.
“A.F. Scott”
“I agree.
M. Nadon, J.A.”
“I agree.
Johanne Gauthier, J.A.”
Translation
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