Date: 20161229

Docket: T-2157-15

Citation: 2016 FC 1416

Ottawa, Ontario, December 29, 2016

PRESENT:    The Honourable Mr. Justice Brown

BETWEEN:

MURLIDHAR GUPTA

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

JUDGMENT AND REASONS

I.                   Nature of the Matter

[1]               This is an application for judicial review by Murlidhar Gupta [Applicant], pursuant to s. 51.2 of the Public Servants Disclosure Protection Act, SC 2005, c 46 [PDSPA] and s. 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a decision by the Commissioner of the Public Sector Integrity Commission of Canada [Commissioner], on November 25, 2015 [the Decision], in which the Commissioner declined to commence an investigation into alleged wrongdoing and reprisal, as defined under sections 2 and 8 of the PDSPA, pursuant to paragraph 24(1)(f) of the PDSPA.

II.                Facts

[2]               The Applicant is a Research Scientist at Natural Resources Canada [NRCan]. In 2005, he was assigned to the position of Scientific Authority on a project. The Applicant made no financial decisions in his capacity as Scientific Authority; rather, he provided recommendations to the Financial Authority concerning the Project’s finances.

[3]               On January 10, 2014, the Applicant submitted a protected disclosure complaint on the reprisal complaint form [Complaint]. In the Complaint, the Applicant alleged the project’s Financial Authority had committed a wrongdoing, as defined by s. 8 of the PSDPA, by misusing public funds, retroactively altering a contract and entering into verbal contracts.

[4]               The Applicant alleged that, in 2008[1], the Financial Authority had intended to divert money from the project’s contract in order to compensate a graduate student working on a different NRCan project and had directed the Applicant to take such action. The Applicant alleged that the Financial Authority entered a verbal contract with the student’s university to this end. The Applicant alleged that by doing so, the Financial Authority contravened the Financial Administration Act, RSC 1985, c F-11 [FAA], the Public Works and Government Services Canada [PWGSC] contracting policies and the NRCan contracting policies, thereby committing wrongdoings under paragraphs 8(a), (b) and (f) of the PSDPA.

[5]               The Applicant alleges that he confronted the Financial Authority regarding the illegality of his proposed conduct in February 2008. He further alleges that, since that date, he has faced reprisals in various forms.

[6]               In his Complaint, the Applicant identified November 12, 2013 as the day on which he became aware of the reprisals taken against him. He attached to his complaint form a document alleging multiple instances of harassment and intimidation since confronting the Financial Authority in 2008.

[7]               On June 24, 2015, the Applicant’s representative, Legal Counsel at the Professional Institute of the Public Service of Canada (the Applicant’s union), submitted an amended disclosure complaint form and an amended reprisal complaint form [Amended Complaint]. In the Amended Complaint, the Applicant alleged additional wrongdoings of harassment and intimidation, contrary to subsections 8(d), (e) and (f) of PSDPA.

[8]               On April 11, 2014, the Commissioner decided not to investigate the allegations contained in the Applicant’s disclosure [Initial Denial]. The Applicant applied for judicial review of that decision (Court File No. T-1024-14), which application was settled such that a new Case Admissibility Analyst [Case Analyst] be assigned to the file. Several telephone meetings were held between the Case Analyst and the Applicant’s representative and additional disclosure was provided by the Applicant to the Case Analyst in the period leading up to the release of the new Case Admissibility Analysis [the Analysis]. The Analysis was given to the Commissioner and formed the basis upon which the Commissioner decided to dismiss the Complaint.

The Analysis

[9]               The Analysis was prepared on October 15, 2015. The purpose of the Analysis is stated as follows:

24.       In order to determine whether an investigation is warranted under the Act, we must determine whether the disclosure concerns wrongdoing as defined at section 8 of the Act and whether the Commissioner has sufficient grounds for further action.

[10]           The Case Analyst analyzed the Applicant’s allegations under paragraphs 8(a), (b), (c), (d), (e) and (f) of the Act in order to come to and make a recommendation to dismiss the complaint.

No basis under 8(a) or (b)

[11]           First, the Case Analyst found that the Applicant’s allegations of wrongdoing under paragraphs 8(a) and (b) were not supported by any information. These allegations were withdrawn by the Applicant during his interviews with the Case Analyst. After submitting his disclosure, the Applicant “clearly indicated that he no longer believes that [the Financial Authority] made any expenditure in contravention of PWGSC and NRCan contracting policies and the FAA”. Thus, the premise underlying the claims of wrongdoing under subsections 8(a) and (b) were unsupported.

No basis under 8(f)

[12]           The Case Analyst found there was no information provided to suggest that the Financial Authority had knowingly directed or counselled the Applicant to commit a wrongdoing as defined under subsection 8(f) of the Act: first, the Financial Authority seemed to have ceased pursuit of diverting funds once made aware of its allegedly illegal implications; second, the Applicant did not have financial authority to take the actions allegedly directed; and third, the email supplied by the Applicant as proof of these directions “not suggest that [the Financial Authority] directed the [Applicant] to divert moneys from the [project] …”. Therefore, the Case Analyst concluded that the Commissioner had a valid reason not to commence an investigation under paragraph 8(f) of the Act.

No basis under 8(c)

[13]           The Case Analyst determined that the alleged harassment of the Applicant did not constitute “gross mismanagement” under paragraph 8(c) of the Act, although some of the Applicant’s allegations could constitute harassment prohibited by the Treasury Board’s Policy on Harassment Prevention and Resolution [TB Harassment Policy]. In this respect, however, the Case Analyst noted, among other things, that there was nothing to suggest that management took or failed to take that would create a substantial risk of significant adverse impact upon the ability of NRCan to carry out its mandate. The Case Analyst further noted that the allegations of harassment appeared to all concern alleged misconduct geared towards one individual only, namely the Applicant. The behaviour alleged was not systemic or directed at several employees such as to affect the overall health of the workplace. Disclosure investigations under the Act are not meant to replace other available recourse mechanisms such as the TB Harassment Policy. Therefore, the Case Analyst concluded that the Commissioner had a valid reason not to commence an investigation under paragraph 8(c) of the Act.

No basis under 8(d)

[14]           The Case Analyst considered whether the alleged conduct created a substantial and specific danger to the Applicant or his family’s life, health or safety, thereby constituting a wrongdoing as defined in paragraph 8(d) of the Act. The Complaint in this respect was neither substantial nor specific. The Case Analyst rejected this ground of complaint because the legislation requires more than speculation:

53.       After careful review of all the information provided, the [Applicant] appears to make reference to his family’s physical and physiological well-being as a result of the harassment he endured by the senior managers and unnamed employees at NRCan. However, the [Applicant] made no reference to the creation of a specific danger to the life, health or safety of any person, including himself; the [Applicant] did not specify what, if any, ailments were created by the senior managers and unnamed employees at NRCan. No information was provided to link any danger to specific actions.

[15]           The Case Analyst concluded that there was nothing in the file that suggested that wrongdoing as defined at paragraph 8(d) of the Act was committed. Therefore, the Case Analyst concluded that the Commissioner had a valid reason not to commence an investigation under paragraph 8(d) of the Act.

Potential Basis under 8(e)

[16]           The Case Analyst considered subsection 8(e) of the Act, which states that “a serious breach of a code of conduct established under section 5 or 6” is wrongdoing in respect of which a Commissioner may commence an investigation.

[17]           The Case Analyst found the alleged harassment could be a serious breach of the Values and Ethics Code for the Public Service [Code] and therefore constituted a wrongdoing per paragraph 8(e), but could be more appropriately dealt with under paragraph 24(1)(f) of the Treasury Board’s Directive on the Harassment Complaint Process [TB Harassment Directive].

[18]           The Case Analyst reviewed the Applicant’s allegations under the Code and concluded that some of the Applicant’s allegations of harassment “could constitute a breach of subsections 2.1, 2.3, 2.4 and 3.1 …”. The Case Analyst stated that some of the factors used to determine if there is a “serious” breach of the Code “could have been met”, and that “this allegation could still concern a serious breach of the Code and wrongdoing as defined” in paragraph 8(e).

[19]           The Case Analyst noted, however, that the Commissioner would still have to consider if an investigation should be commenced, i.e., whether a disclosure investigation would be the best tool to address the situation under paragraph 24(1)(f) of the Act. Several considerations were noted, including the following: there was “no indication the matter concerns systemic or endemic breaches”; the alleged misconduct appeared geared towards the Applicant only; and, the disclosure mechanism is not meant to replace existing recourses available to individuals in the public sector. The Case Analyst noted the TB Harassment Directive establishes a process to deal with harassment in the core public service including NRCan and flows from the TB Harassment Policy, which requires the establishment and maintenance of effective harassment complaint processes in the departments.

[20]           The Case Analyst concluded that the Applicant’s harassment allegation would be more appropriately dealt with according to the procedures provided under the TB Harassment Directive and that this was a valid reason not to commence an investigation. In this respect, the Case Analysis recommended the Commissioner exercise its discretion under paragraph 24(1)(f) of the Act and decline to commence an investigation as there was a valid reason for not dealing with the subject-matter of the Applicant’s disclosure.

[21]           In summary, the Case Analyst recommended that the Commissioner decline to investigate the Applicant’s complaints of wrongdoing under paragraphs 8(a), (b) or (f) because there was nothing to suggest such wrongdoing occurred. The Case Analyst further recommended that no investigation take place under paragraphs 8(c) (gross mismanagement) or 8(d) (specific and substantial danger). Finally, the Case Analyst recommended that no investigation be commenced under paragraph 8(e), given such allegation could be more appropriately dealt with according to the procedure under the TB Harassment Directive.

[22]           The Commissioner agreed with these recommendations and dismissed the Applicant’s Amended Complaint by letter dated November 25, 2015. This Decision is now before this Court for review.

III.             The Decision

[23]           The Commissioner declined to investigate the Applicant’s claim because it could more appropriately be dealt with under the department’s harassment procedures, specifically, those implemented pursuant to the TB Harassment Directive.

[24]           The Decision relied on the Case Admissibility Analysis, making all the same findings and coming to the same conclusions. Specifically, almost the entire substance of the Analysis regarding the allegations of wrongdoing under paragraphs 8(a) through (d) and (f) are included in the Commissioner’s Decision. Exercising his authority under paragraph 24(1)(f) of the Act, the Commissioner declined to commence an investigation under the above mentioned grounds on the basis that he “[did] not have sufficient grounds for further action”.

[25]           The Decision borrowed heavily from the Analysis in determining the issue of the Applicant’s allegations under paragraph 8(e) of the Act. The Commissioner exercised his discretion under subsection 24(1)(f) and declined to commence an investigation into the Applicant’s allegations of harassment. He stated:

Given that TBS’s Directive on the Harassment Complaint Process establishes a process to deal with harassment in the core public administration, which includes NRCan, it appears that the subject matter or your allegations could more appropriately be dealt with in accordance with the internal complaint procedure at NRCan. Under the circumstances, I am exercising my discretion, again pursuant to paragraph 24(1)(f) of the Act, not to conduct an investigation into this particular aspect of your disclosure.

[26]           The Applicant applies for judicial review of this decision..

IV.             Issues

[27]           The following issues arise:

1.                  Whether the Commissioner breached the duty of procedural fairness to the Applicant in terms of identifying the issues that would be considered in reaching his Decision?

2.                  Whether the Commissioner’s decision was reasonable in terms of the availability of an appropriate alternative recourse to resolve the Applicant’s allegation of harassment?

V.                Standard of Review

[28]           In Dunsmuir v New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 at paras 57 and 62 [Dunsmuir], the Supreme Court of Canada held that a standard of review analysis is unnecessary where the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. The Commissioner’s conclusion that the Applicant’s allegation of harassment would be more appropriately dealt with through the internal complaint procedure available at NRCan is reviewable on a standard of reasonableness: Detorakis v Canada (Attorney General), 2010 FC 39, 358 FTR 266 at para 16 [Detorakis]. The discretionary nature of this decision reflects the Commissioner’s expertise in addressing disclosures under the PDSPA: Detorakis at para 106(i). Such expertise favours a deferential approach to review which accordingly I will apply.

[29]           In Dunsmuir at para 47, the Supreme Court of Canada explained what is required of a court reviewing on the reasonableness standard of review:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness 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.

[30]           Questions of procedural fairness are reviewed on the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. In Dunsmuir at para 50, the Supreme Court of Canada explained what is required when conducting a review on the correctness standard:

When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

VI.             Relevant Provisions

[31]           The PSDPA states:

VII.          Analysis

Procedural Fairness

[32]           The thrust of the Applicant’s submissions is that he was not aware that the Commissioner would consider whether other avenues of recourse were available to him in determining whether to conduct an investigation or not. He says he did not know that reliance might be placed on paragraph 24(1)(f) of the Act, which he calls the “basket clause”. This lack of notice, he claims, led to his inability to properly present his case, essentially because he was unaware of the threshold issues the Commissioner intended to pursue. He says he was not given an opportunity to address them before the Commissioner rendered a decision and was therefore unaware of the case he had to meet; he only had notice that the Commissioner might act under paragraph 24(1)(a).

[33]           There are several flaws in the Applicant’s allegation of breach of procedural fairness.

[34]           First, the complaint form notes in italics, under the heading “(C) Other Proceedings”:

Paragraph 24(1)(a) of the Act provides that the Commissioner may refuse to deal with a disclosure or to commence an investigation – and he or she may cease an investigation – if he or she is of the opinion that the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament; …

[35]           The Applicant filled in or responded to the sections of the form under this note, which indicates that the Applicant was aware that this section existed and was cognizant of what was contained therein. Not only did the Applicant complete this section in the Amended Complaint as the Respondent submits, but he had previously completed the same section in the Original Complaint. Furthermore, the Applicant amended one of his submissions under Part C in the Amended Complaint. All of this confirms that the Applicant interacted with this section of the form more than once and was well aware of its contents and substance.

[36]           In my view the Applicant’s main arguments is in effect that he should have been given a copy of the Case Analyst’s report to the Commissioner; the Case Analyst’s report would have included reference to paragraph 24(1)(f). However, the Federal Court of Appeal has decided that complainants such as this Applicant have no such right under the duty of fairness: Agnaou (FCA) at para 39. The Federal Court of Appeal, in a reprisal complaint (this too is a reprisal complaint) stated:

[39]      Having considered the content of the DPSIC’s duty of procedural fairness, in light of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration) 174 D.L.R. [Baker] at paragraphs 21 to 29, and even taking into account that the decision to reject a reprisal complaint can have a greater impact on the appellant’s career than a decision under section 24 of the Act (Agnaou #1), I am satisfied that there was no breach with regard to the appellant’s rights to participate. The DPSIC did not have to let him comment on the analyst’s report that was given to him before making a decision.

[emphasis added]

[37]           With respect, if there is no right to comment on an analyst’s report, there no right to see the analyst’s report.

[38]           In considering this issue it is relevant to recall that the PDSPA imposes a relatively low threshold for procedural fairness at the investigative level. The PDSPA explicitly provides that investigations into disclosures of wrongdoing should be “conducted as informally and expeditiously as possible”: subsection 19.7(2). This suggests (and I agree) that the preliminary processes employed to determine whether an investigation is warranted under section 24 and in particular paragraph 24(1)(f) should also be informal and expeditious:

g.         As section 26(2) of the PSDP Act makes clear “investigations are to be conducted as informally and expeditiously as possible.” No investigation occurred in the present case, but there is no reason to conclude that decisions based upon subsection 24(1)(a) should not also be informal and expeditious;

(Detorakis, above at para 106(g))

[39]           Such construction of paragraph 24(1)(f) also accords with the “extremely wide” discretion afforded to the Commissioner at the screening stage under subsection 24(1) of the PDSPA (Detorakis, above at para 106(i)),  by which the Commissioner is authorized to determine those cases that should proceed and which may be determined through an alternative recourse system.

[40]           In addition, it is material that the Applicant had the assistance of Legal Counsel in this matter, which in my respectful view makes it more difficult on this record for the Applicant to successfully allege he was not aware of the grounds on which his complaint might be dismissed by the Commissioner. There is certainly more to section 24 than paragraph 24(1)(a): there are five more paragraphs to consider, namely (b) through (f) with which his legal advisor was or should have been aware.

[41]           The Applicant says he would have filed additional evidence if had he known his complaint might be dismissed due to the availability of the departmental harassment process. He says he would have requested information on the criteria to be applied, noted any such process would be unfair and biased since it involved senior NRCan managers and would have mentioned that he had already complained, without success, to the Deputy Minister, among other grounds.

[42]           In my view, there is no merit to these objections. The fact of the matter is the forms completed by the Applicant and his counsel specifically asked him to advise if his allegations of wrongdoing had already been reported to a supervisor or to any other person at his place of work. The Applicant for whatever reasons chose not to inform the Commissioner that he had brought his concerns about harassment to the attention of the Deputy Minister first on March 18, 2014 and again on May 23, 2014. He chose to mention only his contacts with various other officials from 2008 to 2010. He failed to put forward the allegation he currently makes regarding NRCan’s lack of interest in addressing his concerns and failed to argue that, in any event, NRCan was unable to appropriately deal with his allegations. When asked if he had reported his allegations of wrongdoing to another person or body outside of his place of work acting under another Act of Parliament, he answered in the negative. On each of these questions, the Applicant was given room to elaborate but chose not to. I am not persuaded his failure to complete the form correctly can be so transformed into a breach of procedural fairness by the Commissioner.

[43]           Nor am I persuaded by the Applicant’s assertion that he might have been treated differently if he had answered the questions put to him; it seems to me that he cannot claim judicial review based on his own omissions.

[44]           Further, while paragraph 24(1)(f)[2] was relied upon, the wording actually used by the Commissioner[3] is drawn from paragraph 24(1)(a)[4], which is the very paragraph found on the complaint forms repeatedly signed by the Applicant. I see no reason in principle why the core rationale expressed in paragraph 24(1)(a), namely the availability of alternative recourse, may not equally ground a finding under paragraph 24(1)(f). As the Applicant argued, subsection 24(1)(f) is a form of “basket clause”.

[45]           In my view, the Applicant has not established a breach of procedural fairness.

Reasonableness of the Decision

[46]           The Applicant does not take issue with the findings made against him by the Commissioner in rejecting his complaints under paragraphs 8(1)(a), (b), (c), (d), or (f) of the PSDPA, nor otherwise with the reasonableness of the Decision. Although the Respondent made submissions on the issue of reasonableness, in these circumstances I need not address them.

[47]           This application for judicial review must therefore be dismissed.

VIII.       Costs

[48]           Each party seeks costs. The parties agreed that the successful party should have costs assessed as an all-inclusive lump sum of $3,200.00, which I find reasonable.

IX.             Conclusion

[49]           The Application is dismissed with costs payable by the Applicant to the Respondent in the all-inclusive lump sum of $3,200.00.

JUDGMENT

THIS COURT’S JUDGMENT is that

1. The application for judicial review is dismissed.
2. The Applicant shall pay to the Respondent costs in the all-inclusive lump sum of $3,200.00.

“Henry S. Brown”

 

Appendix A

The relevant sections of the PSDPA state:

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-2157-15
STYLE OF CAUSE:	MURLIDHAR GUPTA v ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Ottawa, Ontario
DATE OF HEARING:	November 1, 2016
JUDGMENT AND REASONS:	BROWN J.
DATED:	december 29, 2016

APPEARANCES:

David Yazbeck	For The Applicant
Abigail Martinez	For The Respondent

SOLICITORS OF RECORD:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Barristers and Solicitors Ottawa, Ontario	For The Applicant
William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario	For The Respondent