Docket: A-9-16
Citation:
2017 FCA 14
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CORAM:
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SCOTT J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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SYLVIE THERRIEN
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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 OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
January 17, 2017).
GLEASON J.A.
[1]
We have before us an appeal from the judgment of
the Federal Court, dismissing the appellant’s application for judicial review
of the decision of the Office of the Public Sector Integrity Commissioner of
Canada in which the Commissioner determined that he had no authority to deal
with the appellant’s reprisal complaint by virtue of subsection 19.3(2) of the Public
Servants Disclosure Protection Act, S.C. 2005, c. 46 (the PSDPA).
The Federal Court’s judgment was issued on December 9, 2015, and its Reasons
and Judgment are reported as Therrien v. Canada (Attorney General), 2015
FC 1351, 261 A.C.W.S. (3d) 778.
[2]
In this appeal we are required to step into the
shoes of the Federal Court and determine whether it selected the appropriate
standard of review and whether it applied the selected standard correctly: Agraira
v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC
36 at paras. 45-47, [2013] 2 S.C.R. 559. While we agree that the Federal Court
selected the appropriate standards of review, namely reasonableness in respect
of the Commissioner’s determination under subsection 19.3(2) of the PSDPA
and correctness in respect of the appellant’s procedural fairness allegations,
we believe that the Federal Court made reviewable errors in its application of
those standards.
[3]
More specifically, in the circumstances of this
case, we believe that the Commissioner violated the appellant’s procedural
fairness rights as Commission staff told the appellant’s counsel that the
factors the Commissioner would be considering in assessing whether he would
inquire into the appellant’s reprisal complaint were the factors enumerated
under paragraph 19.3(1)(a) of the PSDPA. The appellant
accordingly made submissions to the Commissioner as to why he ought not
exercise his discretion to decline to inquire into the complaint under paragraph
19.3(1)(a) of the PSDPA.
[4]
However, the Commissioner did not review the
matter under paragraph 19.3(1)(a) of the PSDPA, but, rather,
dismissed the complaint under subsection 19.3(2) of the PSDPA and at no
time indicated to the appellant that the latter subsection was being considered
as a basis for refusing an inquiry into the complaint.
[5]
There is a meaningful difference between the two
statutory provisions. Paragraph 19.3(1)(a) of the PSDPA affords
the Commissioner discretion to decline to deal with a complaint where the Commissioner
is of the opinion that the subject matter of the complaint either has been or ought
more appropriately be dealt with under a procedure provided under another Act
of Parliament or a collective agreement. Subsection 19.3(2), on the other hand,
is cast in mandatory terms and requires the Commissioner to dismiss a complaint
where its subject matter is being dealt with by a body (other than a law
enforcement agency) acting under another Act of Parliament or a collective
agreement. Given these differences, a complainant may well make different
submissions under the two provisions.
[6]
In the circumstances of this case, where Commission
staff indicated to the appellant that only paragraph 19.3(1)(a) would be
considered by the Commissioner, the Commissioner was bound to disclose that he
was also considering subsection 19.3(2) of the PSDPA before deciding to
dismiss the complaint under the latter provision. The Commissioner’s failure to
do so violated the appellant’s rights to procedural fairness as the appellant
was misinformed as to the issues being examined by the Commissioner. The
appellant therefore had no way of knowing the case she had to meet.
[7]
While the foregoing is sufficient to dispose of
this appeal, we think it also prudent to examine the Commissioner’s
interpretation of subsection 19.3(2) of the PSDPA to provide guidance
for the redetermination to be conducted by the Commissioner.
[8]
We believe that the Commissioner’s determination
that the subject matter of the appellant’s complaint was being dealt with by a
body acting under the grievance process provided in the Public Service
Labour Relations Act, S.C. 2003, c. 22, (the PSLRA) was unreasonable
as the Commissioner failed to ascertain whether the Public Service Labour Relations
and Employment Board (the PSLREB) would be hearing the suspension and dismissal
grievances on their merits and, if so, whether in the course of so doing would
be examining the subject matter of the reprisal complaints. As it turns out,
the employer objected to the jurisdiction of the PSLREB to hear the merits of
the grievances contesting the suspension and termination of the appellant,
arguing that the impugned decisions were of an administrative as opposed to a disciplinary
nature. If the employer’s position is upheld, the PSLREB will not conduct a
review of the suspension, revocation of reliability status and termination
decisions to assess whether the employer had cause for imposing them.
[9]
Failure to consider these issues renders the
Commissioner’s determination unreasonable as subsection 19.3(2) of the PSDPA
requires that the PSLREB entertain the merits of a grievance that deals with
the subject matter of the reprisal complaint. The PSLREB may be called upon to
examine the subject matter of a reprisal complaint where it hears a grievance that
alleges a violation of an anti-reprisal provision in a collective agreement or where
it examines the reprisal allegations in the context of a disciplinary grievance
as part of its assessment of whether the employer possessed cause for the
actions in question. Thus, in the context of a grievance, it is only where the
Commissioner is satisfied that the substance of a reprisal complaint is being
dealt with on its merits by the PSLREB that subsection 19.3(2) of the PSDPA
might reasonably be found to apply. To ascertain whether this is so, it may
often be necessary for the Commissioner to await the outcome of proceedings
before the PSLREB prior to determining whether subsection 19.3(2) of the PSDPA
is applicable.
[10]
The Commissioner’s interpretation, which found
the mere referral of a grievance to the PSLREB to come within subsection
19.3(2) of the PSDPA, is incompatible with the intent and purpose of the
PSDPA, which is designed to provide protection from reprisals to public
servants in addition to the rights they possess under the PSLRA.
[11]
It therefore follows that we allow this appeal
with costs before this Court and the Federal Court and remit the appellant’s
reprisal complaint to the Office of the Public Sector Integrity Commissioner of
Canada for redetermination in accordance with these Reasons. Costs before the
Federal Court are fixed in the all-inclusive amount of $2,500.00, and before
this Court in the all-inclusive amount of $2,500.00.
"Mary J.L. Gleason"
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