Docket: T-1308-17
Citation:
2017 FC 847
Ottawa, Ontario, September 21, 2017
PRESENT: The Honourable Mr. Justice Martineau
|
BETWEEN:
|
|
GENEVIÈVE
DESJARDINS
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
ORDER AND REASONS
[1]
The applicant, whose identity has been protected
thus far, is seeking an interlocutory injunction to prevent the Public Sector
Integrity Commissioner of Canada (the Commissioner) from not submitting the
case report—or any other portion of this case—to the speakers of the two houses
of Parliament until a final decision is rendered concerning her application for
judicial review. At the same time, she is asking the Court to seal this record
and issue a publication ban and order non-disclosure of the proceedings.
[2]
A special hearing was held in Ottawa on
September 20, 2017, before the undersigned Justice to debate the issue of
whether the Court should extend any or all of the injunction issued against the
Commissioner to not table the case report before Parliament, and the order to
keep the record confidential, which were granted temporarily on August 23, 2017,
by Mactavish J. and renewed by Bell J. until September 22, 2017, or until the
Court issues another order, whichever comes first.
[3]
Given the short timeline and the need to issue
an order today to dispose of the applicant’s application for an interlocutory
injunction and an injunction for confidentiality, I will not repeat here the
facts cited by the parties during the proceedings or their respective arguments—which
were debated at length the day before—except to focus on key factual aspects or
key arguments in this case.
[4]
The Office of the Public Sector Integrity
Commissioner of Canada (the Office) received a disclosure of wrongdoing on
October 19, 2015, in which it was alleged that the conduct of the applicant, a
senior executive with the Canadian Food Inspection Agency (the Agency), constituted
wrongdoing within the meaning of paragraphs 8(c) and (e) of the Public
Servants Disclosure Protection Act, S.C. 2005, c. 46 (the Act), namely
gross mismanagement and a serious breach of a code of conduct.
[5]
On February 12, 2016, an investigation was
launched by the Office. On April 26, 2016, the Office advised the applicant of
the allegations under investigation. On July 24, 2017, the applicant received
an unfavourable decision from the Office, concluding that the applicant had in
fact committed some of the wrongdoings alleged by the persons making the
disclosures. At the same time, in separate correspondence, the Commissioner
reported his conclusions and recommendations to the chief executive of the
Agency on July 24, 2017. In particular, he recommended that the Agency
determine whether it would be appropriate to impose disciplinary sanctions on
the applicant. Upon receipt of the response from the chief executive on August
15, 2017, the Commissioner prepared a case report, which must be submitted to
the speakers of the House of Commons and the Senate no later than September 22,
2017.
[6]
I am satisfied that the issues raised by the
applicant are serious.
[7]
In her application for a judicial review, filed
on August 22, 2017, the applicant challenged the Commissioner’s conclusions.
First, the disclosure of wrongdoing was allegedly motivated by reasons contrary
to sections 24.1 and 40 of the Act. Second, they were made in bad faith and are
false. Third, the persons making the disclosures used the Act as an undue
pressure tactic to obtain personal gain and the Commissioner refused to address
it. Fourth, the Commissioner acted without jurisdiction or ultra vires,
while the Commissioner’s public statements raise a reasonable fear of bias.
Fifth, although the applicant was interviewed in May 2016 and was able to make
submissions concerning the preliminary report on August 12, 2016, the
Commissioner did not respect the principles of natural justice or procedural
fairness. The applicant is therefore asking for the Commissioner’s report to be
cancelled. At the same time, the applicant is seeking an order declaring that
the Commissioner did not respect the principles of natural justice and
procedural fairness, or the procedure that he was required to follow under the
Act.
[8]
I am also prepared to assume, for the purposes
hereof, that tabling the case report prepared by the Commissioner in Parliament
could cause irreparable harm to the applicant’s reputation, but I am not
satisfied that public disclosure could affect any ongoing disciplinary
investigation. In fact, the Agency has asked an independent third party to
assess the harassment complaints that have been filed against the applicant in
the past. In his previous case report, tabled in Parliament in February 2017,
the Commissioner reproached the former President of the Agency and the former
Vice-President of Human Resources of having committed wrongdoings by not fairly
and fully dealing with the harassment complaints in question. In passing, the
applicant was placed on leave with pay on August 16, 2017, until the
independent third party completes the investigation into the harassment
complaints by the persons who made the disclosure.
[9]
That said, the criteria for obtaining an
interlocutory injunction are interrelated and must all be satisfied. Claiming
that the obligation for the Commissioner to report to Parliament is a legal
barrier to issuing an injunction, or a matter of public interest—taking
precedence over the applicant’s reputation—on a balance of convenience, it
seems clear to me that the Court cannot block the legislator’s clear intent for
the case report referred to in subsection 38(3.1) of the Act to be tabled in
both houses of Parliament within the 60 days set forth in subsection 38(3.3) of
the Act, meaning that this application for an injunction must be dismissed.
[10]
The relevant provisions of section 38 read as
follows:
|
(3.1) If the
Commissioner makes a report to a chief executive in respect of an
investigation into a disclosure or an investigation commenced under section
33 and there is a finding of wrongdoing in the report, the Commissioner must,
within 60 days after making the report, prepare a case report setting out
|
(3.1) S’il a fait
un rapport à un administrateur général à l’égard d’une enquête menée sur une
divulgation ou commencée au titre de l’article 33 où il conclut qu’un acte
répréhensible a été commis, le commissaire prépare, dans les soixante jours,
un rapport sur le cas faisant état :
|
|
(a) the finding
of wrongdoing;
|
a) de sa
conclusion;
|
|
(b) the
recommendations, if any, set out in the report made to the chief executive;
|
b) des
recommandations qu’il a faites, le cas échéant, dans le rapport à l’administrateur
général;
|
|
(c) the time, if
any, that was specified in the report to the chief executive for the chief
executive to provide the notice referred to in section 36;
|
c) le cas
échéant, du délai dans lequel l’administrateur général était tenu de lui
donner l’avis visé à l’article 36;
|
|
(d) the
Commissioner’s opinion as to whether the chief executive’s response to the
report to the chief executive, up to that point in time, is satisfactory; and
|
d) du fait que, en date du rapport sur le
cas, il est d’avis que la réponse de l’administrateur général au rapport fait
à ce dernier est ou n’est pas satisfaisante;
|
|
(e) the chief
executive’s written comments, if any.
|
e) les
observations écrites faites, le cas échéant, par l’administrateur général.
|
|
(3.2) Before
making a case report, the Commissioner must provide the chief executive with
a reasonable opportunity to make written comments.
|
(3.2) Avant la
présentation du rapport sur le cas, le commissaire donne à l’administrateur
général la possibilité de lui présenter des observations écrites.
|
|
(3.3) Within the
period referred to in subsection (1) for the annual report and the period
referred to in subsection (3.1) for a case report, and at any time for a
special report, the Commissioner shall submit the report to the Speaker of
the Senate and the Speaker of the House of Commons, who shall each table the
report in the House over which he or she presides forthwith after receiving
it or, if that House is not then sitting, on any of the first fifteen days on
which that House is sitting after the Speaker receives it.
|
(3.3) Le
commissaire présente, dans le délai prévu au paragraphe (1) ou (3.1) dans le
cas du rapport qui y est visé ou à toute époque de l’année dans le cas d’un
rapport spécial, son rapport au président de chaque chambre, qui le dépose
immédiatement devant la chambre qu’il préside ou, si elle ne siège pas, dans
les quinze premiers jours de séance de celle-ci suivant la réception du
rapport.
|
|
(4) After it is
tabled, every report the Commissioner stands referred to the committee of the
Senate, the House of Commons or both Houses of Parliament that may be
designated or established for the purpose of reviewing the Commissioner’s
reports.
|
(4) Les rapports
du commissaire sont, après leur dépôt, renvoyés devant le comité, soit du
Sénat, soit de la Chambre des communes, soit mixte, chargé de l’examen de ces
rapports.
|
[11]
The applicant does not question the
constitutionality of section 38 of the Act and, even in constitutional matters,
interlocutory injunctions preventing the application of a legislative provision
are only issued in clear cases (Harper v Canada (Attorney General),
[2000] 2 S.C.R. 764, at para 9). In the case at hand, the launch of judicial review
proceedings cannot prevent the Commissioner from acting in accordance with the
Act. The statutory period of 60 days is strict. Under the principles of
separation of powers and the rule of law, the Court cannot prescribe another
period for carrying out the duties incumbent on the Commissioner under the Act.
The interlocutory injunction sought by the applicant amounts to a suspension of
the application of the Act for the duration of the legal proceedings.
[12]
Moreover, the tabling in parliament of
investigation reports by the Commissioner—who is an officer of Parliament—clearly
serves the public interest. It helps maintain and increase public trust in the
integrity of public servants. On the other hand, if the applicant’s reputation
were damaged by the Commissioner’s report, given the public nature of the legal
proceedings, as argued before me by the representative of the Attorney General
of Canada, a favourable final judgment would, as applicable, [translation] “restore the reputation” of the applicant. If the
applicant is successful on the merits, in addition to reversing the decision
being challenged, the Court has broad declaratory power.
[13]
As the applicant’s identity would become public
with the tabling in Parliament of the case report required under section 38 of
the Act, it follows that the temporary confidentiality order that she was
granted is needless and does not need to be extended today. Moreover, the risks
of damage to the applicant’s reputation do not justify issuing a general
confidentiality order. It is in the public interest that the facts giving rise
to the disclosure of wrongdoing and the investigation by the Office be known to
the public and the media. The order sought by the applicant is far too broad.
[14]
One of the fundamental principles of the legal
process is transparency, both in the procedures used, and in the elements
relevant to the resolution of the dispute. In her originating notice, in
particular, the applicant accuses the Commissioner and staff at his Office of
being biased and refusing to assess the credibility of the persons making the disclosures
and the witnesses in question. That is her absolute right. It remains to be
determined whether the names of the persons in question should be redacted, as
suggested by counsel for the Commissioner. I do not believe so. These are legal
proceedings launched by the applicant, not a confidential document obtained or
prepared during the investigation in question. The office’s investigation is
now complete. At this stage, I am not satisfied that, given the specific nature
of the allegations made by the applicant in her originating notice, the names
of the persons making the disclosures and the witnesses in question should be
struck from before the Court.
[15]
Finally, in light of the submissions made at the
hearing by counsel, these proceedings must continue as specially managed
proceedings. Counsel has agreed to a timeline for the order issued this day by
the Court. That timeline may be modified, as applicable, by the prothonotary or
judge responsible for the management of proceedings.
[16]
There shall be no costs.
ORDER in T-1308-17
THE COURT ORDERS
that:
1.
The applicant’s
motion for an interlocutory injunction and confidentiality order is dismissed;
2.
These proceedings
shall continue as specially managed proceedings, and this order shall be
brought to the attention of the Judicial Administrator to have the Chief
Justice of the Court appoint a prothonotary or judge to assist in managing
these proceedings;
3.
The parties shall
comply with the following timeline:
a)
The Office of the
Public Service Integrity Commissioner of Canada (the Federal Office) shall
transmit to the Court Registry and to the parties the material requested by the
applicant, in accordance with Rule 317 of the Federal Court Rules (the
material) on or before October 2, 2017;
b)
If the Federal Office
refuses to transmit certain documents mentioned by the applicant in her
originating notice, it must advise the parties and the Judicial Administrator
in writing of the reasons for its objection on or before October 2, 2017;
c)
Unless directed
otherwise by the Court, any objection by the Federal Office under Rule 318
shall be decided based on written submissions by the parties and the Federal
Office;
d)
The applicant shall
serve on the respondent the affidavits and documents to be used in support of
the application, on or before November 16, 2017, or, if there is an objection
under Rule 318, within 45 days of the date on which the material is transmitted
pursuant to the order by this Court;
e)
The respondent shall
serve the affidavits and documents that are to be used in support of its
position within 45 days of the date on which the applicant’s affidavits are
served;
f)
The examinations on
the affidavits shall be completed within 45 days of the date on which the
respondent’s affidavits are served;
g)
The applicant shall
serve and present her application file within 45 days of the date on which
cross-examinations end;
h)
The respondent shall
serve and present its response file within 45 days of the date on which the
applicant’s file is served;
i)
The applicant shall
serve and present the application for a hearing within 45 days of the date on
which the respondent’s response file is served;
4.
This timeline may be
modified, as applicable, by the prothonotary or judge responsible for managing
the proceedings;
5.
All without costs.
“Luc Martineau”
Email this Content