Docket: T-2064-15
Citation:
2017 FC 338
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 31, 2017
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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YACINE AGNAOU
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
regarding the decision made on November 9, 2015, by Mr. Joe
Friday, the Public Sector Integrity Commissioner [the Commissioner], which dismissed
the reprisal complaint filed on January 5, 2013, by the applicant at the
Office of the Public Sector Integrity Commissioner [PSIC].
I.
Statutory framework
[2]
Section 19 of the Public Servants Disclosure
Protection Act, S.C. 2005, c. 46 [the Act] prohibits taking or
directing reprisals against a public servant. Subsection 2(1) of the Act
defines the word “reprisal” as any of the following measures taken against a public servant
because the public servant has made a protected disclosure or has, in good
faith, cooperated in an investigation into a disclosure or an investigation commenced
under section 33:
a) a disciplinary measure;
b) the demotion of the public servant;
c) the termination of employment of the
public servant, including, in the case of a member of the Royal Canadian
Mounted Police, a discharge or dismissal;
d) any measure that adversely affects the
employment or working conditions of the public servant; and
e) a threat to take any of the measures
referred to in any of paragraphs (a) to (d).
[3]
With the Act coming into force on April 15,
2007, it became possible for a public servant working in the public sector to
make a protected disclosure aimed at a whole range of wrongdoing: a misuse of
public funds or property; a gross mismanagement in the public sector; an act or
omission that creates a substantial and specific danger to the life, health or
safety of persons, or to the environment; a serious breach of a code of conduct
established under the Act; and knowingly directing or counselling a
person to commit a wrongdoing (subsection 2(1), “wrongdoing”,
“protected disclosure”, “public servant”, “public sector”; section 8, paragraphs (b) to (f) of the Act)).
[4]
In fact, disclosures can be made at various
times and at various levels: internally, to a supervisor or senior officer in a
department or organization (section 12); externally, to the Commissioner
(section 13), or, if there is not sufficient time to make the disclosure
of a serious offence under an Act of Parliament or an imminent risk of
substantial and specific danger, the disclosure may be made to the public
(subsection 16(1)). In this section, as an independent agent of Parliament,
the Commissioner plays an essential watchdog role, investigating not only
disclosures of wrongdoing that he or she has received from public servants
(section 13), but also any other instance of wrongdoing of which he or she
may have learned during the course of an investigation or as a result of
information provided by a person who is not a public servant (section 33).
However, the disclosure system would go ignored if the Act did not at
the same time ensure the protection of the public servants who made the
disclosures.
[5]
Here is why, in a distinct manner, the Act
allows the Commissioner to conduct investigations (sections 19.7 to 19.9),
to conduct conciliation (sections 20 to 20.2), and to refer to the Public
Servants Disclosure Protection Tribunal Canada [the Tribunal] a reprisal
complaint made by a public servant pursuant to section 19.1 of the Act
if, after receipt of the investigation report pursuant to section 20.3 of the Act,
the Commissioner is of the opinion that it is warranted (section 20.4). In
such cases, the Commissioner can apply to the Tribunal to determine whether a
reprisal was taken, for: (a) an order respecting a remedy in favour of the
complainant (paragraph 20.4(1)(a) of the Act); or (b) an
order respecting a remedy in favour of the complainant and an order respecting
disciplinary action against any person or persons identified by the
Commissioner in the application as being the person or persons who took the
reprisal (paragraph 20.4(1)(a) of the Act). Clearly, the
success of the protection system depends on the expeditiousness of the
Commissioner’s investigations and the confidence of stakeholders in the remedy
mechanisms.
[6]
Furthermore, the creation of the Tribunal—a
specialized and independent tribunal tasked with determining whether reprisals
took place and providing the appropriate remedy, which may include taking
disciplinary action against any person who carried out reprisals—is a very
different approach from traditional labour relations models (in particular, see
El-Helou and Courts Administration Service, Power and Delage, 2011
CanLII 93945 (CA PSDPT), 2011‑TP‑01 at para 48 [El-Helou 1]).
The importance taken on by the Commissioner’s application, once sent to the
Tribunal, does not come from the fact that it proves the veracity of its
contents, since that is not the case. Nevertheless, the Commissioner’s
application pursuant to section 20.4 of the Act is essential
because it allows the Tribunal to carry out its decision-making function and,
as required, provide an appropriate remedy (sections 21.7 and 21.8). With
respect to reprisals, unlike the Commissioner, the Tribunal has the authority,
in the same manner and to the same extent as a superior court of record, to
summon and enforce the attendance of witnesses and compel them to give oral or
written evidence on oath and to produce any documents and things that the
member or panel considers necessary for the full hearing and consideration of
the application (paragraph 21.2(1)(a) of the Act). In
addition, it is the judges of the Federal Court or other superior courts who
sit on the Tribunal. These judges are therefore particularly well placed to
decide on any issue of evidence or law that may arise as part of the
Commissioner’s application.
[7]
It must be remembered that the Commissioner’s
role is not to determine the credibility of the persons involved or to decide on
delicate issues of law, but to decide whether there is an objective basis for
justifying that the reprisal complaint be investigated on its merits by the
Tribunal. Thus, by holding an investigation into a reprisal complaint (sections 19.3
to 19.7), the investigator, who submits a report and its recommendations to the
Commissioner, must not undermine the Tribunal’s adjudicative function (El-Helou
v. Courts Administration Service, 2011 CanLII 93947 (CA PSDPT), 2011-TP-04
at para 43 [El-Helou 4]). At the risk of repeating myself, the
Commissioner acts as a filter and not as a shield against otherwise allowable
reprisal complaints. In fact, paragraph 20.4(3)(a) should be read
in correlation with subsection 19.1(1), which states that a public servant
or former public servant who has “reasonable grounds” for believing
that a reprisal has been taken against him or her may file a complaint. It is
in this context that the Commissioner must look at whether “there are reasonable grounds for believing that a reprisal
was taken against the complainant” (paragraph 20.4(3)(a)).
That being said, the expression “reasonable grounds to believe”
refers to a threshold of proof that is less demanding that the “balance of probabilities” standard of proof, which typically applies to civil trials and
before many administrative tribunals, including the Tribunal (El-Helou 4 at
paras 34-46).
[8]
By analogy, in Mugesera v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005] ACS no. 39 at para 114
[Mugesera], the Supreme Court of Canada stated that the standard of “reasonable grounds to believe” found in paragraph 19(1)(j)
of the former Immigration Act, R.S.C. 1985, c. I-2, “requires something more than mere suspicion, but less than
the standard applicable in civil matters of proof on the balance of
probabilities”, while “[r]easonable
grounds will exist where there is an objective basis for the belief which is
based on compelling and credible information.”
In addition, as the Supreme Court also highlights, “it
is important to distinguish between proof of questions of fact and the
determination of questions of law”, and in that regard, the “reasonable grounds” standard “applies
only to questions of fact” (Mugesera at
para 116).
[9]
On the other hand, the existence of “reasonable grounds” is not the only factor that affects the exercise of the
Commissioner’s discretion. Among the other relevant factors mentioned by
lawmakers in subsection 20.4(3) of the Act, the Commissioner is
asked to take into account whether the investigation into the complaint could
not be completed due to a lack of cooperation on the part of one or more chief
executives or public servants (paragraph 20.4(3)(b)); the complaint
should be dismissed on any ground mentioned in paragraphs 19.3(1)(a)
to (d) (section 19.3 and paragraph 20.4(3)(c)); and,
having regard to all the circumstances relating to the complaint, it is in the
public interest to make an application to the Tribunal.
[10]
In the case at bar, the disputed decision was
made under the authority of section 20.5 of the Act, which allows
the Commissioner, after receipt of the investigation report prepared by an
investigator under section 20.3 of the Act, to dismiss a reprisal
complaint if the Commissioner “is of the opinion that
an application to the Tribunal is not warranted in the circumstances, he or she
must dismiss the complaint”, hence the present application for judicial
review.
II.
Factual context and timeline of decisions
rendered in connection with the protected disclosure and the applicant’s reprisal
complaint
[11]
In substance, the applicant accused his former
employer, the Public Prosecution Service of Canada [PPSC], of having carried
out reprisals on September 10, 2012, following the protected disclosure
that he made to his superiors in winter 2009 (internal), then in October 2011
to the PSIC (external), [Translation] “in a serious case of poor management in
handling File A (c.f. PSIC-2011-D-1422)”.
[12]
With this being the reprisal of which he said
that he was the victim, the applicant mentioned in his complaint:
[Translation]
On June 18, 2012, I wanted to assert my
right of priority with the PPSC to fill one of two LA-2B-level legal counsel
positions at its headquarters. The two positions in question had been posted on
June 15, 2012, by the Department’s senior management, which decided that
it would fill them using two of its qualified employees from a pool created in
July 2009. However, at that date, I had active right of priority since November 1,
2010, which gave me priority for appointment from this pool in which I was also
qualified and which had produced six appointments previously (the last
application that was selected before those being disputed was posted on October
17, 2010).
Senior management at the PPSC maneuvered in
the weeks that followed to usurp the position to which I was clearly entitled.
For my part, I quickly understood that management at the PPSC was seeking every
means to keep me from holding a position in “their” organization due to my
disclosure of the file [A] case (c.f. your file PSIC-2011-D-1422). Thus,
on June 20, 2012, I alerted the Priorities Branch of the Public Service
Commission (PSC) with the hope that it would protect my rights. They then
informed me that PPSC management had been notified that no appointment from the
pool could be made ahead of mine.
Unfortunately, the PSC’s Priorities Branch
could do nothing more against the determination of PPSC’s senior management to
keep me from taking up my position. Thus, on September 13, 2012, the
Director of Human Resources at PPSC informed me that the decision to fill the
two positions by reclassification and not using the pool was irrevocable and
was made jointly with PPSC’s senior management (i.e. the Director of Public
Prosecutions and his two Assistant Directors).
[13]
The applicant also states in his complaint that
the following people were responsible for reprisals: Mr. Brian Saunders,
Director of Public Prosecutions; Mr. George Dolhai, Assistant Director and
Senior General Counsel; Mr. André A. Morin, Chief Federal Prosecutor; and Mr. Denis
Desharnais, Director General, Human Resources Branch. More specifically, these
individuals allegedly proceeded with reclassifying the two positions in
question with the goal of preventing the appointment of the applicant—who was
then receiving appointment priority status—to one of the positions because the applicant
had made a protected disclosure (internal and external).
[14]
This is not the first time that a Commissioner’s
decision regarding a reprisal complaint from the applicant has been subject to
judicial review (see file T‑429‑13/A‑110-14). It must be
recalled that on February 12, 2013, following a summary examination by a PSIC
analyst, Mr. Friday, who then held the title of Deputy Commissioner, had
refused to deal with the complaint on the grounds that it was beyond his
jurisdiction—which is a grounds for refusing to deal with a complaint under
paragraph 19.3(1)(c) of the Act—although he was moreover
satisfied that the reclassifications in question could constitute a form of “reprisal”,
as defined under subsection 2(1) of the Act. On the one hand, the Deputy
Commissioner concluded that the emails cited by the applicant (especially those
that were exchanged on April 1 and 2, 2009) did not constitute an internal
disclosure within the meaning of section 12 of the Act because
there was no specific mention of reprisal, as defined in section 8 of the Act.
On the other hand, the second condition set forth in the definition of “reprisal”
(subsection 2(1) of the Act) was not “satisfied”,
given that the applicant did not demonstrate how his managers would have been
aware of the existence of the protected disclosure that he had made on October 13,
2011, to the Commissioner (file PSIC-2011-D-1422, which itself refers to the
internal disclosure made during winter 2009 regarding File A, which is at issue
further along in these reasons at paras 23–27). Thus, in his letter dated February 12,
2013, the Commissioner explained that he [Translation] “was refusing to deal with the complaint
under paragraph 19.3(1)(c) of the Act, since there was no
link between [the] protected disclosure and the reprisal supposedly taken
against [the applicant]”.
[15]
The applicant applied for judicial review of
this initial negative decision by the Deputy Commissioner. Following the
unfavourable judgment rendered by Annis J. on January 27, 2014 (Agnaou
v. Canada (Attorney General), 2014 FC 87, [2014] FCJ no 117), on
February 2, 2015, the Federal Court of Appeal allowed the applicant’s appeal
(Agnaou v. Canada (Attorney General), 2015 FCA 29, [2015] FCJ no. 116 [Agnaou
FCA 29]). Essentially, the Federal Court of Appeal ruled that the
Commissioner must not summarily dismiss a reprisal complaint unless it is plain
and obvious that it cannot be dealt with for one of the reasons described in
subsection 19.1(3) of the Act (Agnaou FCA 29 at paras
66–69). Thus, the issue was knowing whether the Commissioner could reasonably
conclude that it was plain and obvious that the emails mentioned by the applicant
were not an internal disclosure within the meaning of section 12. In this
matter, the Federal Court of Appeal ruled that a person who makes a disclosure
does not have to refer to the Act in a communication to one of his or
her supervisors, nor does he or she have to mention the definition of “wrongdoing”,
section 12, the Commissioner or any other agency, to permit a finding that
he or she made an internal disclosure within the meaning of section 12. In
short, the Act does not require the public servant to convey the fact
that he or she is in the process of making a disclosure within the meaning of
the Act (Agnaou FCA 29, at para 75).
[16]
As for the nature of the disclosure of
wrongdoing, in the reasons for judgment provided by Gauthier J., paragraph 88
states that:
The phrase “gross mismanagement” used in
section 8 of the Act is not defined and depends, of course, on the
organization involved. Here, given the very nature of the PPSC’s mandate, the
file is on the whole rather unusual, and it is difficult to determine the exact
parameters of what could constitute such a wrongdoing. The public interest is
often an important consideration when deciding whether to institute criminal
proceedings, and it is true that this decision should not be subject to undue
interference. The analyst also concluded that there was no evidence of bad
faith on the appellant’s part. In such circumstances, the appellant could
believe that he was disclosing evidence of gross mismanagement to his
supervisor.
[17]
The judgment by the Federal Court of Appeal also
recognized that at first glance, there was a direct causal link between the
allegation of wrongdoing and the internal disclosure to superiors, while the
email from April 1, 2009, did not exclude the possibility that the
disclosure was also made externally (Agnaou FCA 29 at paras 73–89,
particularly paras 77, 78 and 87). As a result, the Federal Court of
Appeal ruled that concluding not to deal with the reprisal complaint was
unreasonable and referred the file back to the Commissioner, while specifying,
given the lengthy delay since the complaint was filed, “that
this is an exceptional case where it is necessary to declare this complaint
admissible”.
[18]
At the same time, in a separate judgment
rendered on February 2, 2015, the Federal Court of Appeal dismissed the
appeal that the applicant had filed against the judgment from January 27, 2014,
by Annis J., which dismissed his application for judicial review for setting
aside the Deputy Commissioner’s decision to not investigate the disclosure of
wrongdoing made on October 13, 2011, by the applicant pursuant to section 13
of the Act (Agnaou v. Canada (Attorney General), 2015 FCA 30,
[2015] FCJ no. 117, affirming 2014 FC 86, [2014] FCJ no. 102). It
must be remembered that in this protected disclosure, the applicant reiterated
that the actions of the managers in the QRO and people at PPSC Headquarters
were not in compliance with several of Canada’s laws, while his superiors and their
subordinates had committed wrongdoing during the winter of 2009 when they
opposed laying charges in File A by using methods that undermined Canada’s
objective, transparent, and independent prosecution system.
[19]
In the case at bar, the Deputy Commissioner’s
decision to close the file regarding these allegations of wrongdoing was made
on September 6, 2012, while the reprisals alleged by the applicant in the
complaint under review regarding the staffing process occurred on September 13, 2012.
[20]
In principle, when it is an external disclosure,
subsection 27(1) of the Act sets forth that “[w]hen commencing an investigation, the Commissioner must
notify the chief executive concerned and inform that chief executive of the
substance of the disclosure to which the investigation relates.”
However, in his letter about not dealing with the reprisal complaint dated
February 12, 2013, the Deputy Commissioner explained that in the applicant’s
particular case, [Translation] “the chief executive was never contacted
because we never commenced the investigation. As a result, we never notified
the PPSC of the disclosure”.
III.
Investigation in the matter of the reprisal
complaint
[21]
On February 17, 2015, after the case was
referred by the Federal Court of Appeal, a PSIC investigator was designated
under subsection 19.7(1) of the Act by Mr. Friday, who was
Acting Commissioner at the time, to investigate the allegations of reprisals
made by the applicant. In the letter that he sent to the applicant, the Acting
Commissioner specified the following:
[Translation]
The Office of the Commissioner will
investigate the reprisal taken against you on September 13, 2012,
following your protected disclosure that was allegedly made on April 2,
2009, in compliance with section 12 of the Act. More specifically,
the investigation will examine your allegation that the managers for the Public
Prosecution Service of Canada (PPSC) identified below proceeded to reclassify
two positions for the purpose of preventing you from being appointed to one of
these positions as a recipient of priority.
[22]
After information and documents were compiled by
the investigator, the following highlights stood out from the file.
[23]
Initially, the applicant had worked at the
Quebec Regional Office [QRO] as a federal Crown prosecutor on the economic
crimes team since 2003. However, on January 24, 2006, the applicant was
assigned File A, a tax-related file for which he had to make recommendations
for prosecution. More specifically, the applicant had to determine whether it was
necessary to institute criminal proceedings against the subsidiary of a
multi-national corporation that had failed to follow up on requests for
information from the Canada Revenue Agency [CRA or the Client]. After analyzing
the file, the applicant in fact recommended that the Client institute
proceedings.
[24]
However, people in management positions at the
PPSC did not share the applicant’s opinion. In addition, on November 4,
2008, the applicant met with the QRO’s general counsel, as well as the
assistant chief federal prosecutor. She felt that at the time, it would be
premature to institute proceedings because the CRA’s Appeals Branch had
received an objection to the reassessments issued against the corporation in
question. This position was also taken by the applicant’s new supervisor, after
he had asked for a second opinion. Despite everything, the applicant maintained
his position for the necessity of going ahead with proceedings. On February 10,
2009, he gave his final recommendation to the QRO’s general counsel. Various
meetings with QRO members followed in order to discuss the issues of such
proceedings.
[25]
On March 4, 2009, the applicant was informed
that the QRO would not institute proceedings in File A. Faced with this
refusal, the applicant announced that he intended to appeal this with the
superiors at PPSC. On March 24, 2009, the General Counsel Committee and affirmed
the earlier decision. However, the applicant did not take part in that meetings
and therefore could not share his point of view.
[26]
On April 1, 2009, in a final attempt, the applicant
met with the Chief Prosecutor once again in order to convince him of the
necessity of such proceedings, but it was in vain. After that, he was removed
from File A. As objective elements of evidence that corroborate the disclosure
of wrongdoing, the applicant produced the emails sent to his superior, Ms. Sylvie
Boileau, including the email from April 2, 2009, in which he stated:
[Translation]
Given that the external stakeholders were
already notified of the decision by our Chief Prosecutor, I can only reassess
the timely nature of my efforts aimed at asserting to the Director of Public
Prosecutions that this decision was made contrary to our organization’s
policies and that it is in the public interest.
In the coming weeks, I will focus on my
active cases and think about what action to take in this serious matter.
My decisions will be defined by my responsibilities as a Crown prosecutor, such
as they are set forth in our laws and policies. If required, our Chief
Prosecutor will be informed of them by the competent authorities.
[Emphasis added]
[27]
As we can see, the applicant threatened the
employer that he would go further and was considering every possibility ([translation]
“what action to take in this serious matter”), which naturally includes a
disclosure to the Commissioner, even if that was not expressly mentioned in the
email from April 2, 2009. Following that disclosure, the working relations
between the applicant and his superiors quickly deteriorated. On April 7,
2009, the applicant’s managers, saying that they were worried for the applicant’s
health, immediately put him on medical leave until he submitted a doctor’s note
stating that he could resume his duties. In May 2009, the applicant filed
three grievances, four harassment complaints, and a complaint under section 127.1
of the Canada Labour Code, R.S.C. 1985, c. L-2, to dispute the validity
of the measures taken by the employer.
[28]
On June 26, 2009, a memorandum of
understanding [the Memorandum] to settle the grievances and complaints at issue
was reached between the parties. Mr. Dolhai signed it as the employer’s
representative. In consideration of the advantages described in the Memorandum,
the applicant committed in particular to leaving the PPSC and vacating his
office on July 3, 2009, and not return to the PPSC, whether during or at
the end of his leave, including during the period in which his priority would
last with the Public Service Commission. In addition, he committed not to file
any other complaints, grievances or any other recourse stemming from complaints
and grievances listed in Appendix 1 of the Memorandum.
[29]
In July 2009, the applicant qualified for a pool
for two counsel positions at the PPSC. A competition for those positions had
already been posted in 2008. On June 18, 2012, the applicant asserted his
right of priority. On September 13, 2012, nearly a week after the Deputy Commissioner’s
decision not to investigate the applicant’s disclosure regarding the handling
of File A, the PPSC informed the applicant that the position for which he
was qualified with his priority would be filled through reclassification and
not through the pool that was created. This decision was irrevocable and made
jointly with PPSC’s senior management. For the applicant, this reprisal was
clearly linked to the internal disclosure in winter 2009 and/or external
disclosure in October 13, 2011.
[30]
As previously described, the applicant filed a
complaint with the PSIC for this reprisal on January 5, 2013, and
following the legal saga surrounding the first refusal by the Commissioner to
bring this complaint before the Tribunal, the case was sent to the
Commissioner, who ordered that an investigation be held. In addition, on August 13,
2015, Commissioner Friday notified the applicant that the PSIC had completed
the analysis of information obtained during the investigation and asked the applicant
to send him any additional information or comments on the draft investigation
report [DIR]. On August 25, 2015, the same request was sent to the
employer and to the individuals who were the subject of the reprisal complaint.
[31]
By the end of his investigation, the
investigator concluded that the Memorandum dated June 26, 2009, was a
ground for not dealing with the reprisal allegations listed in the complaint
from January 5, 2013. Since [Translation] “any
reasonably possible link between the alleged disclosure and the alleged
reprisal was broken by the existence of this Memorandum and its terms”, the investigator did not think that there were reasonable grounds
to believe that reprisals were taken against the applicant. As a result, the
investigator recommended that the complaint be dismissed.
[32]
The applicant, who did not agree with the
investigator’s conclusion, gave his comments and submitted additional
information, while the employer and the individuals named in the reprisal
complaint did not provide any observations. The conclusions in the DIR are
taken up again in the investigator’s final report. After receiving the final
investigation report on November 9, 2015, the Commissioner dismissed the
reprisal complaint.
IV.
Decision targeted by this application for
judicial review
[33]
The Commissioner essentially affirmed the
rationale given by the investigator in his final report.
[34]
In the dismissal letter dated November 9,
2015, the Commissioner said that he had considered the submissions made by the applicant
regarding the investigator’s report and noted that:
[Translation]
In your comments following the DIR, you
indicated that your written commitment in the Memorandum was limited to not
returning to the PPSC to resume the duties that you held upon signing the
release. However, the Memorandum was not worded as such: it clearly indicates
that you are not to return to the “Service”, and therefore, the PPSC in
general. Whatever type of action was taken by the PPSC regarding the handling
of your priority application during the summer of 2012, the proof obtained
during the investigation suggests that the PPSC acted according to the
agreement that was signed, an agreement with which you were prepared not to
comply by asserting a right of priority to return to PPSC.
I do not need to rule on the merits or the
content of this agreement. However, I must consider it in order to be able to
assess the context in which the PPSC made its decision to reclassify the
positions. This information is essential for analyzing the causal link that may
exist between the alleged reprisal and the alleged disclosure.
As a result, and for the reasons previously
indicated regarding the link, I have no reasonable grounds to believe that your
failure to be appointed is linked to your alleged disclosure. This decision by
the PPSC has to do with the implementation of the Memorandum dated June 26,
2009.
On the basis of the information presented
earlier, I have therefore decided to dismiss your reprisal complaint under
section 20.5 of the Act.
[35]
On December 9, 2015, the applicant filed this
application for judicial review in order to have this second negative decision
from the Commissioner reviewed.
V.
Discovery of evidence not reported to the applicant
[36]
At the same time as he was instituting these
proceedings, the applicant made an access to information request to obtain a
full copy of the investigation file. A few days later, the applicant received a
copy of the certified file from the federal office. He then learned that the
investigator interviewed Ms. Kathleen Roussel and Mr. Morin as part
of his investigation. The applicant is now drawing a certain number of
arguments from it.
[37]
According to the applicant’s reading, Mr. Morin
stated to the investigator that he had advised those responsible for the
appointment process to properly check how the applicant’s right of priority
would apply. Mr. Morin also indicated several times that the Memorandum
from 2009 had no bearing on the situation surrounding File A or even the issue
of the disclosure. In addition, Mr. Roussel stated that the right of
priority stemmed from a statute that no agreement could contravene. Worse yet,
although Mr. Roussel was not present during the signing of the Memorandum, he
had been informed that at the time of the Memorandum, various opinions had
handled the contentious legal issue on the basis of the Commissioner’s refusal
to refer the complaint to the Tribunal, namely whether the applicant’s right of
priority could be limited by a clause in the Memorandum, which apparently had
been answered in the negative.
[38]
Thus, after having heard the contents of these
interviews, it became clear to the applicant that the PSIC’s decision ran
completely counter to what these two people (who could be called as witnesses
before the Tribunal) reported to the investigator. The respondent, for its
part, interpreted the statements in question differently. Recordings of the
interviews and transcripts prepared by the respondent were submitted to the Court.
VI.
Respective positions of the parties
[39]
Both parties agreed that the standard of
reasonableness would apply to the review of the merits of the decision made by
the Commissioner, while the standard of correctness would apply to any issue of
procedural fairness raised in the case at bar by the applicant.
[40]
To date, the applicant has continued to claim
that the Memorandum does not affect his priority right under the Public
Service Employment Act, R.S.C. 1985, c. P-33, while this cannot be cited
by the employer or interpreted by the Commissioner as legally prohibiting him
from making a protected disclosure. It is a question of law that does not fall
within the Commissioner’s purview. It should be decided by the Tribunal after
hearing all relevant testimony and evaluating the credibility of witnesses.
[41]
The applicant also claimed that Commissioner
Friday also failed in his duty to procedural fairness by refusing to recuse
himself on May 5, 2015, after former Commissioner Mario Dion recused
himself at the time on the grounds that he knew certain people who were
mentioned in the applicant’s complaint.
[42]
In light of the foregoing, the applicant is now
asking this Court to invalidate the disputed decision. Furthermore, the applicant
wants a directed verdict from this Court, since he no longer has any confidence
in the impartiality of the Commissioner or PSIC staff.
[43]
For her part, the respondent (the Attorney
General of Canada), who is defending the interests of the employer in this
case, asserted in her factum that the disputed decision was reasonable and that
there had been no violation of the rules of procedural fairness.
[44]
The Court heard oral submissions from counsel
during a hearing in Montréal on December 19, 2016. During the hearing, the
Court raised a certain number of issues regarding the Commissioner’s powers and
regarding how the PSIC staff conducted the investigation. Without going into
the details, it became clear that certain aspects of the decision and the
investigation were problematic, which raised the issue of appropriate remedy in
the event that the Court concluded that there was grounds to intervene. At the
end of the hearing, the parties agreed to ask this Court to suspend its
deliberations with the hope of reaching a resolution that was suitable to both
parties. However, it was impossible for them to agree completely, such that the
applicant insisted that a reasoned decision from the Court on the merits of the
application for judicial review.
VII.
New developments
[45]
On January 16, 2017, the Commissioner informed
the Court and the parties that it was in the public interest to revoke his
decision from November 9, 2015, and apply to the Tribunal to deal with the
applicant’s complaint. In that matter, we can read the letter addressed to the applicant:
[Translation]
Paragraph 20.4(3)(d) of the Act
provides that, given the circumstances relating to the complaint, I must
consider the public interest when I decide to apply to the Public Servants
Disclosure Protection Tribunal (the Tribunal) to deal with a complaint.
Considering the issues raised in your application for judicial review, the
comments given by Martineau J., the desire by Martineau J. for this case
to be settled to the satisfaction of both parties and the length of this affair
(which began in 2013 and included two interventions before the Federal Court
and one before the Federal Court of Appeal), I am of the opinion that it has
become public interest to apply to the Tribunal to deal with your complaint.
Jurisprudence in Canada sets forth that an
organization like the Office of the Commissioner can re-open a case under
certain circumstances. After carefully weighing the issues of procedural
fairness and natural justice, I have concluded that the need for flexibility
and a response to the progression of this case prevail over the finality of the
decision from November 9, 2015. I highlight that my conclusion is compatible
with the teachings of the Supreme Court of Canada in Chander v. Alberta
Association of Architects, [1989] 2 S.C.R. 848, which dealt with exceptions
to the application of finality to an administrative decision.
In compliance with paragraph 20.4(1)(a)
of the Act, I will apply to the Tribunal to determine whether reprisal
was taken against you regarding your non-appointment to a LA-2B position on the
grounds that you alleged to have proceeded with a protected disclosure and, if
required, that the Tribunal order that you be remedied.
The parties before the Tribunal will be
yourself, the Commissioner, and the Public Prosecution Service of Canada as
your former employer at the time that the reprisal allegedly took place. The
Tribunal may also add other parties.
I feel that setting aside my decision from
November 9, 2015, and my application to the Tribunal correspond to the
orders required in your application for judicial review. In that regard, I am
also disposed to award you an amount that corresponds to the costs that the Court
would award you.
[46]
By dismissing the reprisal complaint, we can
wonder whether the Commissioner had become functus officio, and
whether he, by his own initiative, could set aside the decision from November 9,
2015, especially since the judicial review process had begun and the parties
had been heard by this Court. However, the respondent’s concessions rendered
this contentious aspect of the case academic. In fact, the respondent has now
decided to consent to this application for judicial review and does not oppose
the disputed decision being set aside or that the case be referred back to the
Commissioner with the appropriate instructions, if required.
VIII.
Conclusions of the Court
[47]
Considering the developments in the case and
also being satisfied pursuant to subsection 18.1(4) of the Federal
Courts Act, R.S.C. 1985, c. F-7, that there was a breach of procedural
fairness, and considering that the Commissioner’s conclusion was unreasonable
in the case at bar, the Court will allow the application for judicial review
and set aside the decision rendered by the Commissioner on November 9,
2015.
[48]
Remaining is the issue of knowing whether, as
the applicant now claims, the Court should also give a direction pursuant to
subsection 18.1(3) of the Federal Courts Act that compels the
Commissioner to apply to the Tribunal to decide not only whether a reprisal was
taken, but also, if necessary, pursuant to paragraph 20.4(1)(b) of
the Act, to decide on an order respecting a remedy in favour of the
complainant and an order respecting disciplinary action against the
person or persons identified in the application as being those who took the
reprisal.
[49]
First of all, it is important that certain
clarifications be made regarding the parties to the proceedings and the powers
of the Tribunal, according to which this is a Commissioner’s application aimed
at making an order pursuant to subsection 20.4(1) of the Act or a
Commissioner’s order aimed specifically at making the orders set forth under
paragraph 20.4(1)(b) of the Act.
[50]
In either case, the Commissioner, the public
servant and the employer are parties to the proceedings before the Tribunal
(paragraphs 21.4(2)(a), (b) and (c), and paragraph 21.5(2)(a),
(b) and (c)). However, as this is an application aimed at making
orders set forth under paragraph 20.4(1)(b), the person or persons
identified in the application as being the person or persons who may have taken
the alleged reprisal are necessarily parties to the proceedings
(paragraph 21.5(2)(d)).
[51]
In addition, even though the Tribunal may add,
as a party to the proceedings for an order set forth under paragraph 20.4(1)(a)
of the Act, a person identified as being a person who took the alleged reprisal
(paragraph 21.4(3)), the Tribunal feels that in the absence of an
application from the Commissioner under paragraph 20.4(1)(b) of the Act,
it does not have the authority to order discipline against any
person who, according to it, took the reprisal (El-Helou v. Courts
Administration Service, 2011 CanLII 93946 (CA PSPDT), 2011-PT-02 at para
48).
[52]
For that matter, the particular way in which the
Commissioner should exercise his discretion regarding the contents of the
application for orders to the Tribunal (paragraph 20.4(1)(a) or
paragraph 20.4(1)(b) of the Act) was never really addressed
by the parties to the proceedings, while the persons identified in the reprisal
complaint as being the persons who took the alleged reprisal were not heard by
the Court and have not had the opportunity to assert their point of view before
the Commissioner on the topic of the contents of the application for orders to
the Tribunal formulated by the applicant.
[53]
With this being the exercise of the discretion reposed
in the Commissioner pursuant to paragraphs 20.4(1)(a) or
20.4(4)(1)(b) of the Act, the Court is referring the case back to
the Commissioner for the sole purposes of knowing—in the case that the Tribunal
decided that reprisal was taken against the applicant—if he is applying to the
Tribunal, if necessary, not only to order a remedy in favour of the applicant
(section 21.7 of the Act), but also the taking of disciplinary
action against any person named in the applicant’s application who was
determined as having taken the reprisal (section 21.8 of the Act),
after having allowed the parties and person identified in the complaint to make
written submissions on the topic.
[54]
Lastly, the Court has full discretionary power
in the adjudication of costs in compliance with section 400 of the Federal
Court Rules, SOR/98-106, more specifically in cases involving people who
represent themselves (Yu v. Canada (Attorney General), 2011 FCA 42,
[2011] FCJ no. 162 at para 37; Thibodeau v. Air Canada, 2007
FCA 115, [2007] FCJ no. 404 at para 24; Sherman v. Canada (Minister of
National Revenue – MNR), 2003 FCA 202, [2003] FCJ no. 710 at paras 46-52;
Chédor v. Canada (Citizenship and Immigration), 2016 FC 1205).
[55]
Although the applicant is representing himself,
he is acting as counsel. He is claiming a lump sum of $12,000 in costs
assessed, while the respondent is instead proposing the amount of $3,000. It is
undeniable that the applicant has put a great deal of time and energy into this
case. That being said, there is no evidence of bad faith or wrongdoing on the respondent’s
part that may justify granting a punitive amount as costs. In addition, the
scale and complexity of the points at issue, as well as the issues of public
interest that are raised by these proceedings, appear significant enough to me
to justify a reasonable allocation to the applicant.
[56]
Given the result of the proceedings, and
considering all the relevant factors, and the particular circumstances of this
case, the Court is satisfied that a sum of $4,000, including all disbursements
and taxable fees, more or less corresponds to what the applicant would have
otherwise received had he been represented by an independent counsel in this
case.
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