Docket: A-239-13
Citation: 2014 FCA 179
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CORAM:
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DAWSON J.A.
TRUDEL J.A.
NEAR J.A.
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BETWEEN:
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SHIV CHOPRA AND MARGARET HAYDON
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Appellants
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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
TRUDEL J.A.
I.
Overview
[1]
Dr. Shiv Chopra and Dr. Margaret Haydon (the
appellants) appeal from a decision of a judge of the Federal Court (the Judge)
dismissing their application for judicial review of a decision of the Public
Sector Integrity Commissioner [PSIC], Mario Dion (2013 FC 644,
[2013] F.C.J. No. 721 [Reasons]). Commissioner Dion had elected
to conduct an independent review of all disclosure of wrongdoing and reprisal
complaint files that had been closed by his predecessor, Commissioner
Christiane Ouimet, between April 15, 2007 and December 19, 2010 in order to
consider whether any merited being reopened. On January 31, 2012, Commissioner
Dion decided that the appellants’ file should remain closed as he found that
Commissioner Ouimet had acted reasonably in ceasing an investigation of the
appellants’ disclosure of alleged wrongdoing by Health Canada pursuant to
paragraph 24(1)(e) of the Public Servants Disclosure Protection Act
(S.C. 2005, c. 46) [PSDPA].
[2]
On application for judicial review, the Judge
held that Commissioner Dion’s decision was reasonable.
[3]
For the reasons that follow, I am not persuaded
that the Judge committed any errors warranting our Court’s intervention. As a
result, I propose to dismiss the appeal with costs.
II.
Facts
[4]
The facts of this case involve a series of
administrative decisions and legal procedures that date back 12 years. Although
some of the history of the file is not directly relevant for the purpose of
making a determination as to whether to dismiss or allow this appeal, it is
nonetheless needed to understand the context in which this appeal is being
brought as well as the issues raised by the appellants.
[5]
The appellants worked as drug evaluators in the
Veterinary Drugs Directorate [VDD] of Health Canada, evaluating drug
submissions filed by manufacturers applying for Notices of Compliance [NOC] to
market veterinary drugs, in accordance with the Food and Drugs Act (R.S.C.,
1985, c. F-27) [FDA] and Food and Drug Regulations (C.R.C., c. 870)
[Regulations]. They did not agree with the regulatory standards that were being
applied by the VDD, as well as its predecessor the Bureau of Veterinary Drugs,
in assessing drug submissions, especially with regard to the human safety data
required for the use of antibiotics and hormones in food-producing animals.
[6]
In 2002, they filed a complaint with the Public
Service Integrity Officer [PSIO]. First, they alleged that veterinary drugs
were being approved without first obtaining the requisite human safety data, in
contravention of the FDA and its Regulations. These allegations concerned the
NOCs for eight enumerated drugs. Second, they alleged that VDD drug evaluators
(like themselves) were being pressured by their supervisors to pass or maintain
veterinary drugs without the required human safety data. Third, they claimed
that drug evaluators faced disciplinary action from their department if they
did not follow management’s instructions “to favour the
pharmaceutical lobby in the approval process for veterinary drugs” (Reasons
at paragraph 6; Commissioner Ouimet’s decision, appeal book, volume 8 at 2964
[Ouimet’s Decision]).
[7]
The PSIO examined these three allegations of
wrongdoing. However, with regard to the first allegation, the PSIO only
investigated whether the NOCs for five “Components with Tylan” products were
issued without adequate human safety data.
[8]
On March 21, 2003, the PSIO issued a report
concluding that all the aforementioned allegations were unfounded. The
appellants applied for judicial review of the PSIO’s decision.
[9]
In an order dated April 29, 2005, Mr. Justice
O’Keefe allowed the application for judicial review, set aside the PSIO’s
report and referred the matter back to the PSIO for reconsideration. He found
that while the PSIO had undertaken to investigate the approval processes for at
least 8 drugs in response to the appellants’ complaints, the PSIO had only done
so with respect to drug products called “Components with Tylan” (Chopra v.
Canada (Attorney General), 2005 FC 595, [2005] F.C.J. No. 712 at paragraphs
72-73 [Chopra 1]).
[10]
In response to Justice O’Keefe’s order, the PSIO
appointed a new investigator to continue the investigation of the appellants’
complaints. The new investigator advised the appellants in May 2005 that the
investigation would be limited to reconsidering the issues that Justice O’Keefe
had judged were missing from the PSIO’s 2003 decision. He asked the parties to
provide him with any additional evidence and also set out a series of questions
for the appellants. The appellants declined to answer but referred the
investigator to the record.
[11]
In 2006, the Public Servants Disclosure
Protection Act was enacted in order to provide a procedure for the
disclosure of wrongdoings in the public sector and to protect persons who
disclose these wrongdoings. The PSDPA created the office of the Public Sector
Integrity Commissioner, which replaced the PSIO, and provided the PSIC with the
mandate to investigate disclosures of alleged wrongdoings.
[12]
The PSDPA provided a transitional provision,
section 54.3, that stipulated that any prior disclosures under the Treasury
Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in
the Workplace that were being dealt with by the PSIO upon the PSDPA coming into
force, were to be continued as though they had been made under the PSDPA.
[13]
The PSDPA also introduced subsection 24(1),
which provided the PSIC with the discretion to cease an ongoing investigation
if certain criteria are met. Of relevance to this case is paragraph 24(1)(e)
which states:
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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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…
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[…]
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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;
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e) que les faits vises par la divulgation ou
l’enquête résultent de la mise en application d’un processus décisionnel
équilibré et informé;
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[Emphasis added.]
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[Non souligné dans l’original.]
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[14]
Ms. Christiane Ouimet was
appointed as the first PSIC and she continued the PSIO’s inquiry into the
appellants’ file. The investigator released his preliminary report in March
2008. He found that the appellants’ allegations of wrongdoing were
unsubstantiated and invited the appellants’ comments and responses.
[15]
With regard to the first allegation, he did not find
that any veterinary drugs were approved in a way that contravened the FDA or
its Regulations. Rather, the drugs at issue had been approved with the required
data or had not been approved.
[16]
He also concluded that the evidence before him did not
support the appellants’ second allegation, that drugs were approved without the
requisite safety data because of pressure placed on Health Canada drug evaluators.
[17]
Finally, he found that the information with which he
was provided did not support the third allegation, that drug evaluators faced
disciplinary action if they did not favour the pharmaceutical lobby.
[18]
The appellants responded to his report in May 2008.
[19]
On October 8, 2009, Commissioner Ouimet decided to
cease the investigation pursuant to paragraph 24(1)(e) of the PSDPA. She
found that the three allegations were interconnected and that they were “rooted in differences in scientific opinion related to the
sufficiency and adequacy of the FDA and Regulations” (Ouimet’s decision,
appeal book at 2974). More specifically, she pointed out that these complaints
were linked to a scientific dispute between the parties regarding the
sufficiency of human safety data Health Canada receives from manufacturers for
new drug submissions. She explained that her office was placed in the position
of trying to evaluate and weigh scientific evidence and that the subject matter
of the disclosure relates to a public policy debate that falls within the scope
of paragraph 24(1)(e). She also noted that the
“existence of ministerial discretion in the Regulations reflects the intent of
Parliament to allow the Minister the degree of flexibility to make informed
decisions on specific matters” and that Parliament did not intend that
her office “investigate and make recommendations on the
appropriateness and sufficiency of the exercise of discretion given to a
minister in federal legislation” (Reasons at paragraph 15; Ouimet’s
decision, appeal book at 2973).
[20]
In sum, Commissioner Ouimet found that the
investigation ought to be ceased pursuant to paragraph 24(1)(e) because
the alleged wrongdoings were connected to the appellants’ view that the
Minister was not requiring adequate human safety data for the drug approval
process in the FDA Regulations. According to Commissioner Ouimet, a debate over
what human safety data ought to be required is a public policy issue that falls
within the scope of paragraph 24(1)(e).
[21]
The appellants did not apply for judicial review of Commissioner
Ouimet’s decision. As a result, the file was closed and Commissioner Ouimet’s
decision became final.
[22]
In October 2010, Commissioner Ouimet stepped down and
on December 20, 2010, Mr. Mario Dion was appointed as the new PSIC. He decided
to hire Deloitte & Touche LLP to conduct an independent review of all
disclosure of wrongdoing and reprisal complaint files that had been closed
between April 15, 2007 and December 19, 2010 in order to consider whether any
merited being reopened. The review was conducted to assess whether Commissioner
Ouimet’s decisions were made in accordance with the PSDPA (Commissioner Dion’s
decision, appeal book, volume 1 at 73 [Dion’s decision]). The review was also
intended to determine “[…] whether the work done during
the original file analysis or investigation accurately and completely addressed
the issues contained in the original disclosure or complaint” (Reasons
at paragraph 19; Correspondence between counsel and the Office of the PSIC
between February 2011 and January 2012, appeal book, volume 8 at 2981).
[23]
On January 31, 2012, Commissioner Dion issued a letter
to the appellants notifying them that he would not be reopening their file, as
he found that Commissioner Ouimet had “acted reasonably
in exercising her discretion to cease the investigation on the basis of
[paragraph] 24(1)(e) of the [PSDPA]” (Dion’s decision, appeal book at
73). He explained that Commissioner Ouimet was correct that the “parameters for the decision-making process for the approval
of veterinary drugs was set out in regulations made pursuant to the [FDA],
which provided the Minister of Health with the discretion to determine the
amount of science required to satisfy the Notice of Compliance approval process
for veterinary drugs” (Ibidem). He found that the subject matter of the disclosure related to
this required amount of science, and that it was reasonable to conclude that
this falls within the ambit of paragraph 24(1)(e) as it relates to a
matter that results from a “balanced and informed
decision-making process on a public policy issue” (Ibidem).
[24]
He also acknowledged that while there had been
procedural shortcomings with regard to the investigation when it ended in the
fall of 2008, these did not play a role in Commissioner Ouimet’s final
decision.
[25]
The appellants brought an application for judicial
review of Commissioner Dion’s decision.
III.
Federal Court Decision
[26]
The Judge dismissed the appellants’ application for
judicial review as he found that Commissioner Dion did not err in deciding not
to reopen the investigation of the appellants’ allegations.
[27]
Although the appellants had argued that Commissioner Dion’s decision was
reviewable on a standard of correctness, the Judge held that
the standard of review was reasonableness. He reasoned that absent legislation
requiring that a decision be reviewed, a non-adjudicative body’s decision to
reopen a case is discretionary and discretionary decisions attract a standard
of reasonableness according to Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraphs 51, 53 [Dunsmuir].
[28]
The Judge explained that neither the PSDPA nor the Public
Servants Disclosure Protection Tribunal Rules of Procedure (SOR/2011-170)
gives the PSIC the power to reopen a closed complaint file. However, the PSIC
nonetheless has the jurisdiction to reopen an investigation on the basis of the
exceptions to the principle of functus officio set out in Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R. 848, [1989] S.C.J. No. 102 [Chandler]. In Chandler,
the Supreme Court explained that administrative tribunals may reopen a decision
for which there is no right to appeal in a number of cases, including where
there is a failure to dispose of an issue which is fairly raised by the
proceedings and the tribunal was empowered by its enabling statute to dispose
of that issue (Reasons at paragraph 65). The Judge explained that ensuring that
the investigation addressed fully the issues in the original complaint falls
within this exception and thus Commissioner Dion had the authority to review
Commissioner Ouimet’s decision (Reasons at paragraph 68).
[29]
The Judge also clarified that
the decision under review is Commissioner Dion’s. The Judge was not
charged with undertaking a judicial review of Commissioner Ouimet’s decision to
stop the investigation pursuant to paragraph 24(1)(e); the appellants
had failed to challenge that decision within the delay period set out at
subsection 18.1(2) of the Federal Courts Act (R.S.C., 1985, c. F-7).
Rather, the Federal Court’s role was simply to determine whether Commissioner
Dion erred in not reopening the investigation of the appellants’ allegations. Thus,
the Judge needed to decide whether it was reasonable for Commissioner Dion to
conclude on the basis of the record before him that
“Commissioner Ouimet was correct in relying on paragraph 24(1)(e) of the PSDPA
to cease the investigation of the [appellants’] complaint of wrongdoing by
Health Canada” (Reasons at paragraph 71).
[30]
Having established that Commissioner Dion had the
authority to review Commissioner Ouimet’s decision and having clarified the
applicable standard of review and the scope of this review, the Judge then
proceeded to dismiss each of the appellants’ arguments on the merits.
[31]
The appellants argued before the Judge that Commissioner Ouimet had
erred in relying upon paragraph 24(1)(e) to cease the investigation and
thus Commissioner Dion erred in not reopening their file. In support of this
argument, they alleged that Commissioner Ouimet neglected to consider the
public interest or the quasi-constitutional status of the PSDPA, and failed to
find that the conditions of paragraph 24(1)(e) were met. They also
maintained that Commissioner Ouimet’s interpretation and application of
paragraph 24(1)(e) problematically has the effect of shielding the
Minister’s discretionary decisions from scrutiny and prevents these decisions
from being considered wrongdoing. They argued that Commissioner Dion’s decision
not to reopen the file is also inconsistent with Justice O’Keefe’s decision in Chopra
I, as Justice O’Keefe had ordered a more extensive investigation. They
further suggested that Commissioner Ouimet erred by finding that the
appellants’ second and third allegations – regarding undue pressure and
reprisals – need not be addressed because these complaints were linked to their
first allegation regarding the lack of human safety data.
[32]
The Judge rejected each of these arguments. He found
that the PSDPA does not possess the qualities needed to give it
quasi-constitutional status, and there is no jurisprudence that provides that
it possesses this status.
[33]
He also explained that Commissioner Ouimet made an
implicit finding of fact that all the conditions required for the application
of paragraph 24(1)(e) were met, and that Commissioner Dion noted this in
reviewing her decision and deciding to leave the file closed.
[34]
The Judge found that while section 24 affords the PSIC
broad discretion, it does not shield all decisions of individuals in positions
of authority from scrutiny and does not render the PSDPA ineffective. Rather,
the Judge explained that in order to conclude that “the
determination of the level of science required is within the Minister’s
discretion under the Food and Drugs Act” the Commissioner was required
to assess whether the Minister’s decisions regarding the approval of drugs and
the level of scientific evidence required to enable these approvals accorded
with the Regulations (Reasons at paragraphs 77-79).
[35]
The Judge also held that Commissioners Ouimet and
Dion’s respective decisions were not inconsistent with that of Justice O’Keefe.
Commissioners Ouimet and Dion had before them the conclusions of the
investigator assigned to the file following Justice O’Keefe’s decision, and the
investigator concluded that no drugs were approved in a way that was contrary
to the FDA and its Regulations and the appellants’ allegations of undue
pressure and reprisals were unjustified. Thus, he found that Commissioner
Ouimet’s decision – that a more thorough investigation would not change her
conclusion – was reasonable on the basis of the evidence before her.
[36]
Finally, the Judge found that it was open to the Commissioner to find that the second and third issues were
interrelated with the first and that Commissioner Ouimet did not fail to
dispose of any issues before her.
[37]
The Judge concluded that Commissioner Dion’s decision
was reasonable since he considered the evidence before him and found that
Commissioner Ouimet’s determination was properly based on paragraph 24(1)(e).
As a result, the Judge found that the appellants had failed to establish that
Commissioner Dion committed a reviewable error when he assessed his
predecessor’s decision to close the investigation of their complaint.
IV.
Analysis
A.
Standard of Review
[38]
On an appeal of an application for judicial review our
Court must determine whether the court below identified the appropriate
standard of review and applied it correctly (Telfer v. Canada (Revenue
Agency), 2009 FCA 23, [2009] F.C.J. No. 71 leave to appeal to S.C.C.
refused, 33095 (June 11, 2009) at paragraphs 18-19). If it did not, this Court
must then assess the administrative decision in light of the appropriate
standard of review (Dr. Q v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19; [2003] 1 S.C.R. 226 at paragraph 43).
[39]
The appellants suggested that this case ought to be reviewed on a
standard of correctness as it raises general questions of law that are of
central importance to the legal system as a whole and involves matters of
public interest or a quasi-constitutional nature. The appellants also point out
that the PSDPA does not contain a privative clause and the PSIC does not have
expertise in interpreting this statute.
[40]
The respondent, in turn, maintained that prior jurisprudence of the
Federal Court establishes that the standard of review applicable to the PSIC’s
interpretation and application of subsection 24(1) is reasonableness (see Detorakis v. Canada (Attorney Genera),
2010 FC 39, [2010] F.C.J. No. 19 [Detorakis]). It also pointed out that
the wording of paragraph 24(1)(e) provides the decision-maker with wide
discretion to cease an investigation if the PSIC is “of the opinion” that it
meets the criteria set out in that provision.
[41]
In my view, these arguments confuse the scope of the
application for judicial review. The Judge was not required to review whether
Commissioner Ouimet erred in her interpretation or application of paragraph
24(1)(e). Rather, it was Commissioner Dion’s decision not to reopen the
file that was subject to judicial review before the Federal Court.
[42]
The Judge did not err in concluding that Commissioner
Dion’s decision was reviewable on a standard of reasonableness. Commissioner
Dion was not legally required to undertake a review of Commissioner Ouimet’s
decision. He elected to do so in order to assess whether Commissioner Ouimet’s
decision accorded with the PSDPA, whether the analysis and investigation was
sufficient and whether she provided adequate reasons for her decision. He also
retained the discretion to decide whether or not to take action on the basis of
his review.
[43]
Commissioner Dion was also further constrained by the
principle of functus officio. He was only able to reconsider his predecessor’s decision because,
as the Judge pointed out, it fell within one of the exceptions to this
principle set out in Chandler.
[44]
The Judge correctly pointed out that in the absence of
legislation mandating a review, a non-adjudicative body’s decision to
voluntarily reopen a case is a discretionary decision and that discretionary
decisions are reviewable on a standard of reasonableness (Dunsmuir at
paragraphs 51 and 53).
B.
The merits of the appeal
[45]
On appeal, the appellants raise similar issues as they
had before the Judge. They argue that the Federal Court and the PSIC erred in
interpreting the PSDPA, as their interpretation precludes the review of
discretionary decisions of the Minister of Health, even if these constitute
wrongdoing. They contend that the PSIC ought to have been required to assess whether
the Minister’s exercise of discretion – with regard to the level of science
required – was performed in a proper manner, despite paragraph 24(1)(e).
They also argue that the PSIC and the Federal Court ought to have considered
Health Canada’s Guidelines, as well as whether there was wrongdoing within the
meaning of section 8 of the PSDPA and point out that the PSIC’s review of the
evidence before it was insufficient given that the PSIC recognized that there
were issues with regard to procedural fairness. They maintain that the PSIC and
the Federal Court ought to have considered the quasi-constitutional status of
the PSDPA. They suggest that Commissioner Dion erred in not explicitly dealing
with their second and third allegations and that the Judge and Commissioner
Ouimet erred in finding that these allegations were linked to the first
allegation. They also allege that the PSIC erred in relying upon paragraph
24(1)(e) to cease the investigation, and that the PSIC failed to
demonstrate that the conditions of this paragraph were met: namely, that the
Minister’s conclusion with regard to the scientific data required for drug
approval actually resulted from a balanced and informed decision-making process
on a public policy issue.
[46]
Many of these arguments are inappropriate attempts to
review Commissioner Ouimet’s decision to cease the investigation pursuant to
paragraph 24(1)(e). In using the term “PSIC” the appellants often fail
to specify whether they are referring to Commissioner Ouimet or Commissioner
Dion; however, the context of their arguments reveals that they commonly use
this term to refer to Commissioner Ouimet. It ought to be emphasized, once
again, that it was Commissioner Dion’s decision that was subject to judicial
review. Commissioner Ouimet’s decision was final and binding. Our Court is not
permitted to review indirectly that which we are not permitted to review
directly. Rather, our task is simply to determine whether the Judge erred in
finding that Commissioner Dion’s decision to not reopen the file was reasonable
on the evidence before him.
[47]
The Judge opted to respond to each of the appellants’
arguments in turn. In my view, however, such an analysis is unnecessary and not
warranted for this appeal. Rather, only two of the
issues the appellants raise are sufficiently relevant to merit being addressed
here: the adequacy of Commissioner Dion’s Reasons and Commissioner Dion’s
alleged failure to review the manner in which the Minister exercises his
discretion under the Regulations.
[48]
Commissioner Dion’s decision was not rendered
unreasonable by the fact that he did not state explicitly that he agrees with
Commissioner Ouimet that the appellants’ second and third complaints are linked
to the first. Nor was it unreasonable for him not to demonstrate clearly that
the conditions for paragraph 24(1)(e) were met. Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 stands for the principle that the adequacy of
reasons is insufficient grounds for quashing a decision. It is implied that
Commissioner Dion agrees with Commissioner Ouimet on these points. It is
evident that he did not ignore or overlook the second and third complaints as
he lists them in his reasons.
[49]
Moreover, Commissioner Dion was not required to provide
evidence that the decision-making process for determining the amount of human
data required under the Regulations results from a “balanced
and informed decision-making process”. Commissioner Ouimet was required
to provide some rationale for why she believed that paragraph 24(1)(e)
applied and she did so. Even if one suggests that Commissioner Ouimet ought to
have provided a more detailed explanation for why she was “of the opinion” that
the subject matter of the investigation fell within the ambit of paragraph
24(1)(e), once again, the Judge was tasked with reviewing the
reasonability of Commissioner Dion’s decision, not Commissioner Ouimet’s.
[50]
Commissioner Dion’s decision provided for “justification, transparency and intelligibility within the
decision-making process” and fell within the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law” (Dunsmuir at paragraph 47). He provided several
reasons why he believed that the file should remain closed. He explained that
in his view Commissioner Ouimet acted reasonably in ceasing the investigation
under paragraph 24(1)(e). More specifically, he pointed out that he
shared Commissioner Ouimet’s view that the complaints were related to the
amount of science required and that this is a public policy issue that is
determined through ministerial discretion and is set out in the Regulations. He
also explained that any deficiencies with regard to the investigation did not
play a role in the outcome of Commissioner Ouimet’s decision, as she did not
base her decision to cease the investigation on the preliminary conclusions of
the incomplete investigation. Rather, according to Commissioner Dion,
Commissioner Ouimet’s decision was made solely on the basis of paragraph 24(1)(e).
[51]
I find therefore that it was open to the Judge to conclude that
Commissioner Dion’s decision was reasonable.
V.
Proposed Disposition
[52]
As a result, I would dismiss the appeal with costs.
“Johanne Trudel”
“I agree.
Eleanor R. Dawson J.A.”
“I agree.
D.G. Near J.A.”
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