Docket: A-30-17
Citation:
2017 FCA 211
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CORAM:
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NADON J.A.
STRATAS J.A.
LASKIN J.A.
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BETWEEN:
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MURLIDHAR GUPTA
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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
LASKIN J.A.
I.
Overview
[1]
Dr. Murlidhar Gupta, a research scientist at
Natural Resources Canada, appeals from the judgment of Justice Brown of the
Federal Court (2016 FC 1416), dismissing Dr. Gupta’s application for judicial
review of a decision of the Public Sector Integrity Commissioner.
[2]
In his decision, the Commissioner determined
among other things that he would not conduct an investigation into a disclosure
by Dr. Gupta under the Public Servants Disclosure Protection Act, S.C.
2005, c. 46, in which he alleged that he had been harassed by senior managers
and other employees of NRCan. While the Commissioner concluded that the
harassment alleged could comprise a serious breach of a code of conduct, and
could therefore constitute wrongdoing within the meaning of the Act, he decided
that Dr. Gupta’s allegations could more appropriately be dealt with through an internal
complaint procedure at NRCan. On this basis he relied on paragraph 24(1)(f)
of the Act, which authorizes the Commissioner to decline to commence an
investigation if the Commissioner is of the opinion that there is a valid
reason for not dealing with the subject-matter of the disclosure.
[3]
Dr. Gupta submits that the application judge
erred in failing to find that he was denied procedural fairness because he was
not given notice that the Commissioner might rely on the availability of a more
appropriate recourse, and on paragraph 24(1)(f), to decide not to
investigate the harassment element of his disclosure. He submits that if he had
been given notice, he would have provided further evidence and made further
submissions to the Commissioner.
[4]
For the reasons set out below, I conclude that there
was no denial of procedural fairness. Even assuming that, as Dr. Gupta submits,
persons making disclosures are entitled to notice of the grounds on which the
Commissioner may rely in deciding not to investigate, the information made
available to Dr. Gupta and his counsel provided adequate notice that the Commissioner
might rely on the availability of another recourse as a reason for deciding not
to investigate the alleged harassment. I would accordingly dismiss the appeal.
II.
Scheme of the Act
[5]
The Public Servants Disclosure Protection Act
establishes a procedure for the disclosure of alleged wrongdoings in the public
sector, including the protection of persons who disclose them. The wrongdoings
to which the Act applies are enumerated in section 8. By paragraph 8(e),
they include a serious breach of a code of conduct applicable in the public
sector.
[6]
The Act authorizes a public servant to disclose
to his or her supervisor or a designated senior officer information that the
public servant believes could show that wrongdoing has been or is about to be
committed, or that the public servant has been asked to commit wrongdoing. The
public servant also has the option of disclosing this information to the
Commissioner. The Commissioner is appointed by the Governor in Council after
consultation with the leader of every recognized party in the Senate and House
of Commons and approval of the appointment by resolution of the Senate and
House of Commons.
[7]
The duties of the Commissioner include providing
information and advice regarding the making of disclosures, receiving, recording
and reviewing disclosures to establish whether there are sufficient grounds for
further action, conducting investigations of disclosures, reporting the
findings of investigations and making recommendations to chief executives
concerning the measures to be taken to correct wrongdoings. The Commissioner is
also charged with receiving, reviewing, investigating and otherwise dealing
with complaints made in respect of reprisals – measures taken against a public
servant because the public servant has made a good faith disclosure, either
under the Act or in another specified manner. When the Commissioner conducts an
investigation, subsection 19.7(2) of the Act provides that the investigation
should be “conducted as informally and expeditiously as
possible.”
[8]
By subsection 24(1) of the Act, the Commissioner
is given the right to refuse to commence an investigation. The Commissioner may
exercise this right both for certain reasons specified in the provision, and
(as provided in paragraph 24(1)(f)), for any reason that the
Commissioner considers a “valid reason.” Because
much of the argument in this appeal centred on subsection 24(1), I set out the
provision in full:
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Right to refuse
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Refus
d’intervenir
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24. (1) 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
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24. (1) Le
commissaire peut refuser de donner suite à une divulgation ou de commencer
une enquête ou de la poursuivre, s’il estime, selon le cas :
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(a) 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;
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a) que l’objet de la divulgation ou de l’enquête
a été instruit comme il se doit dans le cadre de la procédure prévue par
toute autre loi fédérale ou pourrait l’être avantageusement selon celle-ci;
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(b) the
subject-matter of the disclosure or the investigation is not sufficiently
important;
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b) que l’objet de la divulgation ou de
l’enquête n’est pas suffisamment important;
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(c) the
disclosure was not made in good faith or the information that led to the
investigation under section 33 was not provided in good faith;
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c) que la divulgation ou la communication
des renseignements visée à l’article 33 n’est pas faite de bonne foi;
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(d) the
length of time that has elapsed since the date when the subject-matter of the
disclosure or the investigation arose is such that dealing with it would
serve no useful purpose;
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d) que cela serait inutile en raison de la
période écoulée depuis le moment où les actes visés par la divulgation ou
l’enquête ont été commis;
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(e) the
subject-matter of the disclosure or the investigation relates to a matter
that results from a balanced and informed decision-making process on a public
policy issue; or
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e) que les faits visés par la divulgation
ou l’enquête résultent de la mise en application d’un processus décisionnel
équilibré et informé;
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(f) there
is a valid reason for not dealing with the subject-matter of the disclosure
or the investigation.
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f) que cela est opportun pour tout autre
motif justifié.
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[9]
The Act does not prescribe the process for the
Commissioner to follow before deciding whether to exercise what has been
described as the “wide” discretion not to
commence an investigation (Detorakis v. Canada (Attorney General), 2010
FC 39, 358 F.T.R. 266 at para. 43). In
particular, the Act does not specify that the Commissioner will communicate to
persons who have made disclosures the basis on which the Commissioner is
considering exercising this discretion. However, it includes among the
Commissioner’s duties (in paragraph 22(d)) the duty to “ensure that the right to procedural fairness and natural
justice of all persons involved in investigations is respected, including
persons making disclosures […]”.
III.
The disclosure form
[10]
The Office of the Commissioner provides a
disclosure form for public sector employees to use in making disclosures to the
Commissioner. Part (C) of the form is headed “Other
Proceedings.” It begins with “Explanatory Notes”
that refer to three provisions of the Act:
(1)
subsection 23(1), which as the notes explain
provides that the Commissioner may not deal with a disclosure or commence an
investigation if a person or body acting under another Act of Parliament is
dealing with the subject-matter of the disclosure or the investigation other
than as a law enforcement authority;
(2)
paragraph 24(1)(a), which as the notes
explain provides that the Commissioner may refuse to deal with a disclosure or
to commence an investigation – and may cease an investigation – if the Commissioner
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; and
(3)
subsection 24(2), which as the notes explain
provides that the Commissioner must refuse to deal with a disclosure or to
commence an investigation if the Commissioner is of the opinion that the
subject-matter of the disclosure or the investigation relates solely to a
decision that was made in the exercise of an adjudicative function under an Act
of Parliament.
[11]
The explanatory notes do not refer to paragraph
24(1)(f).
[12]
The form goes on, still under the heading “Other Proceedings,” to ask three questions:
(1)
Have you reported this alleged wrongdoing to a
supervisor or to any other person at your place of work?
(2)
Have you reported this alleged wrongdoing to
another person or body, outside of your place of work, acting under another Act
of Parliament?
(3)
Is the subject-matter of this disclosure of
wrongdoing currently being dealt with or has it been dealt with
by another person or body, pursuant to another Act of Parliament? [emphasis in
original]
[13]
If the answer to any of the questions is “Yes,” the form asks for details and any supporting
documentation. It also provides for an “Unknown”
answer to the third question as an alternative to a “Yes”
or a “No.”
[14]
Part (D) of the form is headed “Declaration.” It includes the following statement,
which precedes the signature line: “I understand that
it is my responsibility to provide the Commissioner with all of the information
required by this form, and to attach to this form any relevant documentation.”
IV.
Dr. Gupta’s first disclosure
[15]
In January 2014, Dr. Gupta, assisted by counsel employed
by his union, the Professional Institute of the Public Service of Canada, made
a disclosure of wrongdoing to the Commissioner. He asserted that his supervisor
had directed him to divert contract funds for an unauthorized purpose. He
answered the first “Other Proceedings” question
in Part (C) of the disclosure form “Yes,” and
provided details. He answered the second and third questions “No.”
[16]
In a decision rendered in April 2014, the
Commissioner determined not to commence an investigation into Dr. Gupta’s
allegations. In his letter setting out his decision, the Commissioner specifically
referred to paragraph 24(1)(f) of the Act:
One of the primary objectives of investigations
of wrongdoing under the Act is to bring matters to the attention of
Chief Executives. Given that this issue has been investigated and addressed
internally by NRCan, pursuant to s. 24(1)(f) of the Act, I will
not commence an investigation into your allegations […].
[17]
Dr. Gupta sought judicial review of this
decision. In an affidavit filed in support of the application, Dr. Gupta’s
counsel deposed that he had not been aware until he received the Commissioner’s
letter that the Commissioner was considering not investigating Dr. Gupta’s
allegations on the bases identified in the letter, and that if he had been
aware of it and had been afforded the opportunity, he would have submitted
further argument and evidence.
[18]
The application for judicial review did not proceed.
Based on information provided in the affidavit of Dr. Gupta’s counsel and his
own review of the matter, the Commissioner determined that a new analysis of
Dr. Gupta’s complaint should be undertaken so that Dr. Gupta would have an
opportunity to speak with the case analyst at the Office of the Commissioner –
an opportunity that he had not been given earlier – and provide whatever
further information he believed may be relevant. The Commissioner would then
render a new decision on whether any of Dr. Gupta’s allegations would be
investigated.
V.
Dr. Gupta’s amended disclosure
[19]
Following a meeting and telephone conversations
with the case analyst, Dr. Gupta, again assisted by counsel, submitted an
amended disclosure form to the Office of the Commissioner. The amended form
provided additional information in support of the initial disclosure, and added
allegations of harassment, intimidation and mobbing against senior managers and
other NRCan employees.
[20]
Dr. Gupta again answered the first “Other Proceedings” question in Part (C) of the
disclosure form “Yes,” and provided further
details and documents. He also again answered the second and third questions “No,” but nonetheless included information in the box
following the second question that the matter had been reported to senior
management at NRCan, and that he had communicated his concerns for his and his
family’s wellbeing to the Prime Minister of Canada.
[21]
In the further documentation that he provided
with the amended disclosure, Dr. Gupta advised that he had reported his
concerns twice to the Deputy Minister, but had received no response. He also
submitted that the conduct that was the subject of his complaint violated the
Values and Ethics Code for the Public Sector and NRCan’s own Values and Ethics
Code.
VI.
The Commissioner’s decision
[22]
The Commissioner accepted the case analyst’s
recommendation that no investigation be conducted, and decided not to
investigate either Dr. Gupta’s initial disclosure or the allegations of
harassment in the amended disclosure. Only the latter element of his decision
is in issue in this appeal.
[23]
In his decision, the Commissioner agreed that
the harassment alleged could constitute a breach of the Values and Ethics Code
for the Public Sector, and that it was possible that it could constitute a
serious breach of a code of conduct, and therefore wrongdoing within the
meaning of paragraph 8(e) of the Act.
[24]
The Commissioner stated that he had, however,
decided to exercise his discretion not to conduct an investigation into the
alleged harassment. He explained that the disclosure mechanism under the Act
was not intended to replace existing recourses and that, in the exercise of his
discretion, he had to determine whether a disclosure investigation was “the best tool to address a given situation.” He noted
that the Treasury Board Secretariat’s Directive on the Harassment Complaint
Process established a process to deal with harassment in the core public
administration, including NRCan, and stated that “it
appears that the subject-matter of [Dr. Gupta’s] allegations could more
appropriately be dealt with in accordance with the internal complaint procedure
at NRCan.” In these circumstances, he concluded, he was exercising his
discretion under paragraph 24(1)(f) of the Act not to conduct an
investigation.
VII.
Application for judicial review
[25]
Dr. Gupta applied to the Federal Court for
judicial review of the Commissioner’s decision not to investigate the matters
raised by the amended disclosure. The grounds that he put forward included both
that he had been denied procedural fairness, because he had not been given
notice that the Commissioner might rely on the availability of other recourses
in exercising his discretion under paragraph 24(1)(f) of the Act not to
investigate, and that the decision not to investigate was unreasonable.
[26]
The application judge dismissed the application.
He found that the disclosure form brought to Dr. Gupta’s attention the possibility
that the Commissioner could decide not to investigate based on the availability
of an alternative recourse. Dr. Gupta had completed Part (C) of the form both
when he made his initial disclosure and when he submitted his amended
disclosure, and would have been aware of its contents and substance. The
application judge saw Dr. Gupta’s main argument as in effect that he should
have been given a copy of the case analyst’s report to the Commissioner, which
would have included specific reference to paragraph 24(1)(f). He
noted that this Court had determined in Agnaou v. Canada (Attorney General),
2015 FCA 29, 478 N.R. 118, that fairness in this context does not include the
right to comment on the case analyst’s report. He reasoned that if there is no
right to comment on the report, there can be no right to see it in the first
place. He also observed that the relatively limited content of procedural
fairness even at the investigative stage, the wide discretion whether to
conduct investigations that the Act gives the Commissioner, and the assistance
that Dr. Gupta had from counsel made it difficult for Dr. Gupta to argue
successfully that he was not aware of the grounds on which the Commissioner
might decide not to investigate. He noted that while the Commissioner’s
decision referred to paragraph 24(1)(f), the core rationale for the
decision, as expressed in paragraph 24(1)(a), was specifically set out
in the disclosure form.
[27]
The application judge found it unnecessary to
address the unreasonableness ground, because Dr. Gupta did not take issue at
the hearing with the findings of the Commissioner or the reasonableness of his
decision.
VIII.
Standard of review
[28]
In an appeal from an order of the Federal Court
disposing of an application for judicial review, this Court is to determine
whether the Federal Court selected the correct standard of review and applied
it correctly. In practice, this means that this Court must step into the shoes
of the application judge, and focus on the administrative decision rather than
the decision under appeal (Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45 and 46).
[29]
The parties agree that because the issue raised
by Dr. Gupta is one of procedural fairness, the proper standard of review of
the decision of the Commissioner is correctness. The Court indicated in oral
argument that it was content to proceed on this basis, recognizing that the
standard of review for matters of procedural fairness in another case may call
for further consideration (El-Helou v. Courts Administration Service,
2016 FCA 273 at para. 43, citing Bergeron v. Canada
(Attorney General), 2015 FCA
160, 474 N.R. 366 at paras. 67 to 71).
IX.
The content of procedural fairness in the
context of a decision whether to investigate
[30]
Paragraph 22(d) of the Act, excerpted in
paragraph 9 above, provides that persons making disclosures have a right to
procedural fairness in relation to investigations. But it does not dictate the level
of procedural fairness to be accorded to them. On this question, the Supreme
Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193
at paras. 21 to 28, governs. There the Supreme Court held that the content of
procedural fairness is flexible and variable; it depends on factors that
include the extent to which the process provided for approximates the judicial
process, the nature and terms of the statutory scheme and the importance of the
decision to the individuals affected by it.
[31]
The parties here agree that the procedural
fairness to which persons making disclosures are entitled at the stage of the
Commissioner’s decision whether to investigate the disclosure is at the lower
end of the spectrum. In my view, their agreement faithfully reflects the Baker
factors, including, in particular, the extent to which the process provided for
approximates the judicial process and the nature and terms of the statutory
scheme. In giving the Commissioner the discretion whether to conduct, or refuse
to conduct, an investigation of a disclosure, Parliament chose not to provide
for an adjudicative, adversarial process, or a scheme resembling the judicial
process in any other respect. Instead, the scheme that it put in place is
limited and investigatory in nature: all that it appears to contemplate is that
the discloser will submit information and supporting documentation that he or
she believes establishes wrongdoing that warrants investigation by the
Commissioner, and that the Commissioner will evaluate that information and
documentation and decide whether to investigate. Even if the decision is made
to investigate, subsection 19.7(2) requires, as already noted, that the
investigation “be conducted as informally and
expeditiously as possible.” It is logical therefore that any procedures
preceding the decision whether to investigate should be at least as informal and
expeditious.
[32]
The parties’ agreement is also consistent with
this Court’s reasons in Agnaou v. Canada (Attorney General), 2015 FCA 30
at para. 45, 476 N.R. 156. There, this Court adopted the analysis of the Baker
factors by the Federal Court in Detorakis, above, at paragraph
106, an analysis that led the Federal Court to the conclusion that “the [Act] does not require that someone making a disclosure […]
has a right to be heard or a right to make further submissions after the
complaint has been made.”
[33]
Dr. Gupta submits that even if the content of
procedural fairness at the stage of a decision whether to investigate is
relatively limited, the person making the disclosure must still be given notice
of the “threshold issues” or “factors” that the Commissioner may consider in
deciding whether to refuse to investigate. Dr. Gupta submits that he was not
given notice that the availability of alternate recourse was a potential “threshold issue.” In reliance on this Court’s
decision in Gladman v. Canada (Attorney General), 2017 FCA 109 at para.
40, he also submits that at a minimum procedural fairness must include “the right to be informed of undisclosed adverse material
facts being considered by a decision-maker and to make submissions about them
(in some form) […].”
[34]
In my view, it is not necessary to decide in
this appeal whether fairness in this context requires notice of this nature, or
whether recognizing a requirement to this effect would risk complicating and over-judicializing
a process that was intended to be informal and expeditious. In my view, even if
procedural fairness requires this sort of notice in this context, in the
circumstances here Dr. Gupta had adequate notice that the Commissioner might
decide not to investigate his disclosure of alleged harassment based on the
assessment that the subject-matter could more appropriately be dealt with
through another process.
X.
Adequacy of the notice provided
[35]
Like the application judge, I conclude for
several reasons that Dr. Gupta had adequate notice or that, to use the terms
employed in Gladman, above, the possibility that the Commissioner might
rely on alternate recourse in deciding not to investigate was not an “undisclosed adverse material fact.”
[36]
First, when the Commissioner decided in April
2014 not to investigate Dr. Gupta’s disclosure as then formulated, the
Commissioner expressly relied on paragraph 24(1)(f) and the fact that
NRCan had conducted an internal investigation as grounds for not commencing an
investigation. This decision communicated to Dr. Gupta and his counsel that the
bases on which the Commissioner might refuse to conduct an investigation
included the availability of another recourse, and that the Commissioner saw
this factor as one coming within paragraph 24(1)(f).
[37]
Second, as discussed in paragraph 10 above, the
disclosure form that Dr. Gupta submitted included a section, under the heading “Other Proceedings,” that specifically inquired about
reports made to others and any actions or decisions taken as a result of those
reports. While the explanatory notes that preceded the questions referred to subsection
23(1), paragraph 24(1)(a) and subsection 24(2) of the Act, and did not
mention paragraph 24(1)(f), the questions themselves were not
specifically linked to particular provisions of the Act. The effect of
including the “Other Proceedings” portion of the
form was to communicate that “Other Proceedings”
were potentially in play. Dr. Gupta did not submit in this Court (or, it
appears, in the Federal Court) that “Other Proceedings”
could not constitute a “valid reason” for
refusing to commence an investigation within the meaning of paragraph 24(1)(f).
[38]
Third, in his revised disclosure and the
supplementary information that he submitted, Dr. Gupta provided
information about other recourses – information concerning the reports of
wrongdoing that he had made to others and what if anything had resulted from
them. As noted in paragraph 20 above, he advised in the amended disclosure form
itself that he had made complaints to his supervisor and other more senior
officials within NRCan and communicated his concerns about harassment to the
Prime Minister of Canada. He added in the document providing follow-up to a
teleconference with the case analyst from the Office of the Commissioner that
he had twice contacted the Deputy Minister to express his concerns, but that he
had received no response. His addressing these matters confirmed that he
understood them to be relevant, and it was open to him to elaborate further on
these matters as he saw fit. Again, the absence of a specific reference to paragraph
24(1)(f) is of no moment when his disclosure dealt in substance with
other recourses and when it was open to the Commissioner to rely on paragraph 24(1)(f)
in that regard.
[39]
While not perhaps an independent reason, the fact
that Dr. Gupta was assisted by counsel also in my view contributes to the
conclusion that the information provided and available to him was adequate to
give him notice (see, for example, Thomas v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 241 at para. 3; Richter v. Canada
(National Parole Board), [1992] F.C.J. No. 3, 53 F.T.R. 245, 1992
CarswellNat 734 at para. 13).
[40]
This case therefore differs not only from Gladman,
above, but also from Therrien v. Canada (Attorney General), 2017
FCA 14, on which Dr. Gupta further relies. In that case staff of the Office of
the Commissioner told the discloser’s counsel that the factors the Commissioner
would be considering in deciding whether to investigate the complaint were
those set out in a specific provision of the Act. The discloser accordingly
made submissions as to why the Commissioner should not exercise his discretion
under that provision. However, in deciding not to investigate the Commissioner
relied on a different provision. This Court concluded that given the
differences between the two provisions, the discloser might well have made
different submissions had she been told of the Commissioner’s intention. The
misinformation provided to the discloser thus violated her right to procedural
fairness. Here, in contrast, no misinformation was communicated.
[41]
There was some discussion at the hearing as to
whether the Commissioner could have relied on paragraph 24(1)(a) rather
than paragraph 24(1)(f) of the Act in deciding not to investigate. Given
the Commissioner’s reliance on paragraph 24(1)(f) and the absence of
submissions that this reliance was impermissible, I also see no need to resolve
this question.
XI.
Disposition
[42]
I would therefore dismiss the appeal. In
accordance with the parties’ agreement on costs, I would order that Dr. Gupta
pay to the respondent costs in the amount of $2,450.00, all-inclusive.
“John B. Laskin”
“I agree.
M. Nadon J.A.”
“I agree.
David Stratas J.A.”
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