T‑1278‑05
2007 FC 556
Selwyn Pieters (Applicant)
v.
Attorney General of Canada (Respondent)
and
Public Service Integrity Officer (Intervener)
Indexed as: Pieters v. Canada (Attorney General) (F.C.)
Federal Court, Heneghan J.—Toronto, October 10, 2006; Ottawa, May 28, 2007.
Public Service — Judicial review, pursuant to Federal Courts Act, s. 18.1 with respect to report issued by Public Service Integrity Office (PSIO) after investigation into allegations of wrongdoing at Immigration and Refugee Board (IRB) — Public Service Integrity Office created by Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (policy) — PSIO not excluded from definition of “federal board, commission or other tribunal” in Federal Courts Act, s. 2(1) either because only one person or under exceptions set out — As federal investigative body acting pursuant to Treasury Board disclosure policy made under authority of Financial Administration Act, PSIO is federal board, meeting definition of “federal board, commission or other tribunal” in s. 2(1) — But decision not reviewable pursuant to s. 18.1 — Application dismissed.
Federal Court Jurisdiction — Judicial review, pursuant to Federal Courts Act, s. 18.1 with respect to report issued by Public Service Integrity Office (PSIO) after investigation into allegations of wrongdoing at Immigration and Refugee Board (IRB) — PSIO’s report, recommendations not decision amenable to judicial review as non‑binding on deputy head of department involved; not determining applicant’s substantive rights or carrying legal consequences.
This was an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, with respect to a report issued by the Public Service Integrity Office upon completion of an investigation into allegations by the applicant of wrongdoing, including allegations of reprisal, at the Immigration and Refugee Board (IRB). At the relevant time, the applicant was employed with the IRB in its Refugee Protection Division (RPD) as a Refugee Protection Officer (RPO). The Public Service Integrity Office was created by the 2001 Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (policy), which was issued on behalf of the Treasury Board pursuant to subsection 11(2) of the Financial Administration Act. In his application, the applicant essentially sought to have an order upholding his reprisal complaint or alternatively referring it back to the PSIO and an order directing the PSIO to conduct a further investigation.
In March 2004, the applicant submitted a complaint to the PSIO regarding 10 alleged incidents of wrongdoing at the IRB, in particular, that he had participated in writing reasons for decision at the request of IRB members and that in a case where he was acting as an RPO, the Board member failed to disclose to the claimant’s counsel all of the evidence that he considered. As a result of the applicant’s complaint, two investigations were commenced: the IRB’s own investigation and an independent inquiry by Professor Edward Ratushny into the applicant’s first five allegations. Professor Ratushny’s report found improper conduct by IRB members and the applicant. The report was sent to the PSIO along with responses thereto by the named parties. The PSIO did not make any findings against IRB members on the basis of the jurisdictional restrictions, i.e. as appointees of the Governor in council, IRB members were not subject to the policy and were therefore out of reach of the PSIO investigation. The PSIO issued his final report and recommendations and essentially found that while some of the allegations were substantiated, the IRB had taken appropriate measures in response. The applicant was eventually terminated by the IRB. The issues were whether the PSIO is a “federal board, commission or other tribunal,” as set out in subsection 2(1) of the Federal Courts Act and whether his decision and recommendations made under the policy are subject to judicial review by the Federal Court.
Held, the application should be dismissed.
The PSIO is not excluded from the definition of “federal board, commission or other tribunal” on the basis that he is only one person or under any of the exceptions set out in the definition. The only question that had to be addressed in determining the status of the PSIO is whether, in conducting his investigation and issuing a final report, the PSIO was “exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown.” As a federal investigative body acting pursuant to a Treasury Board disclosure policy made under the authority of the Financial Administration Act, the PSIO is a federal board and meets the definition of a “federal board, commission or other tribunal” in subsection 2(1) of the Federal Courts Act.
But the challenged decision and recommendations were not reviewable pursuant to the Federal Courts Act, section 18.1. In determining whether the PSIO’s report and recommendations constituted a decision that was amenable to judicial review, it was necessary to determine whether the report and recommendations affected a party’s substantive rights or carried legal consequences. The preamble of the policy explains that public servants are to balance their duty of loyalty to their employer and the public interest in using government information with making disclosures of wrongdoing in accordance with the policy. Under the policy, the PSIO’s mandate is to “act as a neutral entity on matters of internal disclosure.” However, the PSIO is ultimately authorized only to make recommendations regarding findings of wrongdoing. The recommendations are non‑binding on the deputy head of the department involved. The PSIO’s final report and recommendations do not determine the applicant’s substantive rights or carry legal consequences as required by case law and therefore are not subject to judicial review.
Nonetheless, the investigation conducted by the PSIO in this case may not have met the standards of procedural fairness. Representatives of the IRB were intimately involved in the PSIO’s investigation. The cumulative effect of various communications and e‑mails cast doubt on the degree of impartiality with which the investigation was ultimately conducted.
statutes and regulations judicially
considered
Canadian Human Rights Act, R.S.C., 1985, c. H‑6.
Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002 c. 8, s. 14), 2(1) “federal board, commission or other tribunal” (as am. idem, s. 15), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).
Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 303.
Financial Administration Act, R.S.C., 1985, c. F‑11, s. 11(2)(i).
Fisheries Act, R.S.C., 1985, c. F‑14, s. 7.
Public Service Staff Relations Act, R.S.C., 1985, c. P‑35.
Refugee Protection Division Rules, SOR/2002‑228, r. 16.
Special Appointment Regulations, No. 2001‑14, SOR/2001‑489.
Tobacco Act, S.C. 1997, c. 13, s. 29.
cases judicially considered
applied:
Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557; (1993), 65 F.T.R. 127 (T.D.); Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; (1995), 125 D.L.R. (4th) 559; 184 N.R. 260 (C.A.).
considered:
Chopra v. Canada (Attorney General) (2005), 273 F.T.R. 200; 2005 FC 595; Fennelly v. Canada (Attorney General) (2005), 279 F.T.R. 262; 2005 FC 1291; Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237; 2002 FCA 103; Vaughan v. Canada, [2005] 1 S.C.R. 146; (2005), 250 D.L.R. (4th) 385; 41 C.C.E.L. (3d) 159; 331 N.R. 64; 2005 SCC 11; Glowinski v. Canada (Treasury Board) (2006), 286 F.T.R. 217; 2006 FC 78; Larny Holdings Ltd. v. Canada (Minister of Health), [2003] 1 F.C. 541; (2002), 216 D.L.R. (4th) 230; 43 Admin. L.R. (3d) 264; 222 F.T.R. 29; 2002 FCT 750; Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue — M.N.R.), [1998] 2 C.T.C. 176; 148 F.T.R. 3; 98 G.T.C. 6076 (F.C.T.D.).
referred to:
Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220; 2005 FC 253; Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548; (1997), 155 D.L.R. (4th) 572; 221 N.R. 372 (C.A.); leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 349 (QL); Girard v. Canada (1994), 79 F.T.R. 219 (F.C.T.D.).
authors cited
Canada. Treasury Board Secretariat. Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace, November 30, 2001.
Canada. Treasury Board Secretariat. Policy on the Prevention and Resolution of Harassment in the Workplace, June 1, 2001.
APPLICATION for judicial review, pursuant to section 18.1 of the Federal Courts Act, regarding a report issued by the Public Service Integrity Office upon completion of an investigation into allegations of wrongdoing at the Immigration and Refugee Board. Application dismissed.
appearances:
Peter M. Rosenthal for applicant.
Michael H. Morris and Joseph Cheng for respondent.
Martine Nantel for intervener.
solicitors of record:
Roach, Schwartz & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
Public Service Integrity Officer for intervener.
The following are the reasons for order and order rendered in English by
Heneghan J.:
I. Introduction
[1]Mr. Selwyn Andrew Pieters (the applicant) seeks judicial review, pursuant to section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act, R.S.C., 1985, c. F‑7 [s. 1 (as am. idem, s. 14)], with respect to a report issued by the Public Service Integrity Office, dated June 23, 2005. The Public Service Integrity Office issued this report after completing an investigation into certain allegations of wrongdoing advanced by the applicant, including allegations of reprisal, relative to the Immigration and Refugee Board (the IRB).
II. The Parties
[2]At the relevant time, the applicant was employed with the IRB as a refugee protection officer (RPO). He subsequently left his employment with the IRB.
[3]The Public Service Integrity Office was created by the Treasury Board Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (the policy). This policy was issued on behalf of the Treasury Board on November 30, 2001 pursuant to subsection 11(2) of the Financial Administration Act, R.S.C., 1985, c. F‑11. By Special Appointment Regulations, No. 2001‑14 [SOR/2001-489], issued November 6, 2001 and effective November 30, 2001, the Governor General in Council appointed Dr. Edward Keyserlingk as the Public Service Integrity Officer (the PSIO).
[4]The Attorney General of Canada (the Attorney General) is named as the respondent in this matter pursuant to rule 303 of the Federal Courts Rules, SOR/98‑106 [r. 1 (as am. by SOR/2004-283, s. 2)] (the Rules).
[5]By motion dated March 17, 2006, the PSIO sought leave to intervene in these proceedings. By order dated March 21, 2006 [[2006] F.C.J. No. 887 (F.C.) (QL)], Prothonotary Lafrenière granted the PSIO intervener status, with leave to make written and oral submissions. The order in that regard provides that his application record is to be restricted to issues of its jurisdiction, its role and mandate, and the preparation of his record through its procedural and investigative processes. The order specifically provides that he should not address the merits of the applicant’s application for judicial review.
[6]In this application, the applicant seeks the following relief:
1. an order upholding his reprisal complaint or alternatively, an order referring the reprisal complaint back to the PSIO with directions;
2. an order directing the PSIO to conduct a further investigation; and
3. an order granting him the cost of this application on a substantial indemnity basis.
III. Background
[7]At the material time, the applicant was a RPO in the Refugee Protection Division (the RPD) at the Toronto office of the IRB. The main function of the RPD is to adjudicate claims for refugee protection by persons in Canada. The claims are decided by members of the IRB who are appointed by the Governor in Council. Members of the IRB are responsible for determining the facts and applying the law with respect to each claim. These functions are described in the Immigration and Refugee Board of Canada Communications Directorate, “Immigration and Refugee Board of Canada: An Overview.”
[8]Refugee protection officers are employees of the IRB who assist the presiding member in the refugee determination process. They conduct research, may interview or question claimants, and make recommendations to the members. Their role is an advisory one and is more specifically described in the Refugee Protection Division Rules, SOR/2002‑228, rule 16, as follows:
16. The duties of refugee protection officers are, as directed by the Division, to
(a) review files to identify issues in a claim or other matter;
(b) conduct research and collect and provide information;
(c) hold interviews, prepare reports and make recommendations;
(d) participate in hearings and conferences;
(e) present evidence and call and question witnesses;
(f) make representations to the Division; and
(g) do any other thing that is necessary to ensure a full and proper examination of a claim or other matter.
[9]On March 10, 2004, the applicant submitted a complaint to the PSIO concerning several alleged incidents of wrongdoing at the IRB. The applicant provided copies of his complaint to the Auditor General of Canada and to the Minister of Citizenship and Immigration. The allegations were also reported in the media. The allegations were as follows:
(i) Allegations 1‑3: the applicant alleged that, in three cases where he was acting as the RPO, he was approached by IRB members and took part in writing reasons for decision.
(ii) Allegation 4: the applicant alleged that, in a case where he was acting as the RPO, the Board member failed to disclose to the claimant’s counsel all of the evidence that he considered.
(iii) Allegation 5: the applicant alleged that he was improperly treated when he sought to introduce certain evidence during a hearing where he was acting as the RPO.
(iv) Allegations 6‑10: the applicant made various complaints regarding his workplace and employer.
The applicant’s complaint was lengthy, comprising a 13‑page letter and 155 pages of supporting material.
[10]In his affidavit filed in support of his application for judicial review, the applicant states that he went on sick leave without pay following submission of his complaint, beginning on March 15, 2004 and continuing until June 24, 2004. He further states that this became a leave of absence without pay as of June 26, 2004 until June 25, 2005.
[11]The applicant forwarded another letter, dated April 5, 2004, to the PSIO. In this letter, he set out further details about the allegations 1 to 5 detailed in his original letter and he also referred to other alleged incidents of wrongdoing. Two binders of supporting documentation were submitted as attachments to this letter to the PSIO. Those materials are reproduced as part of the tribunal record in the present application.
[12]In consequence of the applicant’s March 10, 2004 letter to the PSIO, two investigations were commenced into his allegations of wrongdoing at the IRB. First, the IRB commissioned its own investigation. It informed the PSIO that it intended to conduct an investigation into the applicant’s allegations and then, on March 29, 2004, acting general counsel for the IRB contacted Professor Edward Ratushny. The IRB requested that Professor Ratushny conduct an independent inquiry into the first five allegations set forth in the applicant’s letter of March 10, 2004. The request for an investigation did not extend to allegations 6 through 10 as these were determined to be subject to dispute resolution mechanisms established by a Treasury Board policy and the applicable collective agreement.
[13]By letter dated April 2, 2004, the IRB informed the applicant that Professor Ratushny would be conducting an investigation into the first five allegations of his complaint and preparing a report on his findings. This letter also explained why the investigation would not explore the applicant’s remaining five allegations and invited the applicant to be interviewed by Professor Ratushny for the purposes of the investigation.
[14]Professor Ratushny conducted his investigation in April 2004. He expanded the scope of his investigation to include the additional allegations made by the applicant in his letter of April 5, 2004, which had been sent to the Public Service Integrity Office and copied to Professor Ratushny by e-mail. Professor Ratushny interviewed 13 persons connected to the applicant’s allegations. However, the applicant declined to be interviewed by Professor Ratushny.
[15]Upon being advised that Professor Ratushny would be conducting an investigation, the applicant wrote in a letter dated April 2, 2004 that he fully intended to cooperate. At the same time, he set out a number of concerns regarding the proposed investigation, including requests for compensation for costs that he might incur in reproducing materials, travel, and the cost of hiring legal counsel. He also sought an opportunity to view and comment on preliminary findings of fact and “an undertaking that this inquiry will not make an unfavorable report or a finding of misconduct which relate to me as a result of my disclosures of wrongdoing in the decision‑making and reasons writing process at the IRB.”
[16]Professor Ratushny did not grant the applicant the undertaking he sought and the applicant subsequently refused to be interviewed because he objected to the solicitor‑client basis upon which Professor Ratushny had been retained by the IRB.
[17]Professor Ratushny released his report on April 30, 2004. He made a finding, with respect to the first allegation, that there was improper conduct on the part of two IRB members and the applicant arising from the fact that the applicant had participated in the preparation of reasons. With respect to the second allegation, he found improper conduct on the part of an IRB member and the applicant. He concluded that the member and the applicant had erred in not disclosing a document that was relied upon in the preparation of reasons. With respect to the third allegation, he found improper conduct on the part of the IRB member and the applicant. He found that the member had improperly consulted the applicant about his observations prior to writing reasons for his decision. He found the fourth allegation to be “inherently improbable.” He found the fifth allegation to be not relevant to the writing of reasons and the decision-making process. Finally, he found no evidence of misconduct with respect to the additional allegations.
[18]Professor Ratushny also expressed concern regarding the good faith of the applicant.
[19]On May 17, 2004, the IRB sent a copy of the Ratushny report to the PSIO. It also asked the parties named in the Ratushny report to respond to the findings. On May 21, 2004, the applicant submitted a detailed response to the IRB and provided a copy of his submissions to the PSIO. He amended his response on May 22 and 24.
[20]On June 17, 2004 the IRB presented to the applicant the results of its review of the Ratushny report and the responses that were generated to it, with a copy to the Public Service Integrity Office. On June 18, the chairperson of the IRB made a public statement regarding the findings of the Ratushny report and how the IRB would respond to the findings of improper conduct.
[21]Following release of the Ratushny report, the Public Service Integrity Office decided that there were “sufficient reasons” to further investigate the applicant’s allegations.
[22]In this regard, the Public Service Integrity Office reviewed the applicant’s written complaint, the Ratushny report and the applicant’s response to the Ratushny report. A Public Service Integrity Office investigator met with the applicant on June 16, 2004. At that time, the applicant spoke to the allegations he had made and the investigator described the scope of the investigation.
[23]During the investigation, there was some disagreement and correspondence about the appropriate scope of the investigation. Essentially, the IRB maintained that IRB members, as appointees of the Governor in Council rather than Treasury Board employees, were not subject to the policy and were therefore “out of reach” of the PSIO investigation. The applicant did not agree with such a limitation on the jurisdiction of the PSIO. Ultimately, the PSIO did not make any findings against IRB members on the basis of the jurisdictional restrictions advanced by the IRB. However, the PSIO states that it nonetheless “met with certain Board Members, with the agreement of the IRB, to clarify facts surrounding the allegations.”
[24]In September 2004, the Public Service Integrity Office interviewed two IRB members connected to the allegations for the purpose of clarifying relevant facts. It also interviewed IRB legal counsel, the applicant’s supervisor and the IRB Regional Director. The Public Service Integrity Office also met with the applicant in June 2004, as mentioned above, September 2004, December 2004 and May 2005. In his final report, the PSIO said that it:
. . . provided the employee with several opportunities to be heard through his submissions, meetings, correspondence and telephone discussions concerning the allegations of wrongdoing and his complaint of reprisal. Through these various exchanges the employee has had the opportunity to respond on matters affecting him as he was directly implicated in the alleged wrongdoing and the subject of alleged reprisal. This included the opportunity to respond to relevant material drawn from both the IRB and employee submissions which formed the basis of the preliminary report.
[25]In a letter to the Public Service Integrity Office senior investigator, dated October 26, 2004, the IRB outlined for the PSIO the measures it had taken in response to the Ratushny report. Specifically, the IRB advised that the following actions had been taken:
1. It was determined that one refugee claim should be reopened and reheard;
2. “Appropriate administrative measures” were taken in relation to four IRB members;
3. The IRB Chairperson sent an e-mail to IRB staff and members and issued a public statement, outlining the results of the Ratushny report and the actions that had been taken in response;
4. “Significant efforts” were dedicated to developing a training course on fairness, independence and impartiality for all IRB members and RPOs; and
5. The IRB intended to review its instructions for hearing room participants.
[26]The applicant also submitted a reprisal complaint to the Public Service Integrity Office via e-mail on December 6, 2004. He alleged that, because he had made the allegations of wrongdoing, individuals at the IRB had undertaken retaliatory actions against him. On December 10, 2004, counsel for the applicant submitted a detailed version of the reprisal complaint with attached supporting documentation. The Public Service Integrity Office investigators met with the applicant at this time, reviewed his submissions and discussed the ongoing investigation.
[27]On January 28, 2005, the PSIO issued a preliminary investigation report (the preliminary report) to the applicant and the IRB. Both the applicant and the IRB were given the opportunity to respond to this preliminary report. The IRB submitted its response dated February 28, 2005. In that response, it primarily addressed the issue of the jurisdiction of the PSIO and procedural fairness.
[28]The applicant submitted a response dated March 11, 2005 to the PSIO. In his response, he dealt with each of the PSIO’s findings in detail. His counsel made a further submission on March 20, 2005 and the applicant delivered additional comments by e-mail on May 23, 2005.
[29]Upon review of the further submissions from the parties, the Public Service Integrity Office deemed it necessary to conduct additional interviews relative to one of the reprisal allegations. These interviews were conducted in May 2005.
[30]On June 23, 2005, the PSIO released his final report (the final report) to the applicant and the IRB. In an attached cover letter addressed to the applicant, also dated June 23, 2005, the PSIO said that the final report incorporated “some changes and clarifications and response to concerns expressed by you and the IRB in the respective submissions to the PSIO concerning its Preliminary Investigation Report.” The letter also went on to say that the final report addressed the applicant’s reprisal complaints.
[31]The main conclusions of the final report issued by the PSIO are as follows:
1. Allegation 1: the PSIO substantiated the allegation but concluded that the IRB had already taken appropriate measures in response.
2. Allegations 2 and 3: the PSIO substantiated the allegations and recommended that the IRB review its procedures and consider amending its rules on disclosure.
3. Allegation 4: the PSIO concluded that the evidence did not support the allegation and held that there was in fact evidence to the contrary. This allegation was dismissed.
4. Allegation 5: the PSIO determined that the evidence that the applicant sought to submit was inadmissible and the allegation was dismissed.
5. Allegations of reprisal: these various allegations were dismissed.
[32]The applicant commenced this application for judicial review with respect to the final report of the PSIO on July 25, 2005. In the material filed in support of this application, he provided details about disciplinary action which had been taken against him. In his affidavit dated September 8, 2005, he deposed that he was scheduled to return to work on June 27, 2005, shortly after publication of the final report. He says that the IRB put him “on leave with pay for a few days,” The record indicates that around this time, the IRB anti‑harassment coordinator was investigating complaints that had been submitted to her office concerning the applicant.
[33]In a June 10, 2005 letter, the anti‑harassment coordinator informed the applicant of her conclusion that the applicant had harassed his colleagues and violated his confidentiality requirements pursuant to the Policy on the Prevention and Resolution of Harassment in the Workplace (the harassment policy). A letter from the IRB, dated June 20, 2005 requested that the applicant attend a disciplinary hearing where he would have the opportunity to make whatever additional representations that he felt were appropriate.
[34]The IRB wrote a letter dated June 24, 2005 to the applicant in response to an article that was published on June 22, 2005 by the Canadian Press. In this letter the IRB stated that it felt that the applicant’s discussion with the Canadian Press “constituted serious misconduct for a number of reasons,” mainly because he breached a confidentiality requirement in the harassment policy, ignored clear confidentiality instructions from the anti‑harassment coordinator and breached the duty of loyalty owed to an employer by publicly criticizing the IRB in connection with its handling of his complaint.
[35]A disciplinary hearing took place at IRB facilities on June 27, 2005. The IRB sent its findings and determinations to the applicant by letter dated July 8, 2005. It dealt with a number of preliminary issues including a request by the applicant to record the proceedings, his request to postpone the proceedings, his inquiry regarding who would be deciding the results of the hearing and a subsequent request that the presiding official recuse himself on the grounds of a reasonable apprehension of bias. The letter went on to emphasize that the applicant was not being disciplined for making a disclosure of wrongdoing, filing a complaint with the Canadian Human Rights Commission or for seeking judicial review in the Federal Court in connection with the final report of the PSIO. However, the letter notes that the applicant’s right to voice concerns about racism was circumscribed by Treasury Board policy and that he “could not, in the guise of exercising that right, harass your fellow employees.”
[36]After addressing the complaint regarding the Canadian Press incident, the IRB concluded that the applicant would be suspended without pay for 10 working days. Because he only worked part-time, this suspension was to be served over the period July 29, 2005 to August 22, 2005. The applicant says in his affidavit that he was suspended without pay from July 29, 2005 until August 31, 2005 and that his employment was terminated on August 25, 2005.
IV. Submissions
[37]In his original submissions, the applicant addressed the issue of standard of review, the jurisdiction of the PSIO, an alleged lack of procedural fairness in the conduct of the PSIO’s investigation, and erroneous and capricious findings of fact. In particular, the applicant argued that the PSIO’s investigation was flawed as a result of the intimate involvement of counsel for the IRB in that investigation and further, that the PSIO was aware through his counsel that this close involvement could be perceived as a breach of procedural fairness.
[38]The respondent replied to the arguments raised by the applicant. The respondent submitted that the investigation of the PSIO was subject to review against the standards of neutrality and thoroughness, as those standards have been applied by the courts when judicially reviewing investigations conducted pursuant to the Canadian Human Rights Act, R.S.C., 1985, c. H‑6. Further, the respondent argued that the PSIO’s findings were reasonable and made with regard to the evidence before him.
[39]The PSIO addressed the extent of his jurisdiction in the conduct of the investigation, including its right to determine whether members of the IRB were “employees” for the purposes of that investigation. He also described the broad responsibilities assigned under the policy and provided a general description of the framework within which investigations are conducted. The PSIO took the position that the policy did not grant any rights to be heard in the course of an investigation, but did suggest that the PSIO would invite comments from any person who may be adversely affected.
[40]The PSIO also described the process that would be followed after an investigation had been conducted. He said that a preliminary report is normally prepared for investigations into alleged wrongdoing, and that copies are provided to the department involved and potentially adversely affected individuals. For investigations into alleged reprisals, a copy of the preliminary report is provided to the complainant, the department involved and potentially adversely affected individuals. The PSIO further stated that these parties had the opportunity to make comments before the release of the final report and described this role as investigative, rather than adjudicative.
[41]Neither party directly raised or addressed the issues of the status of the PSIO as a “federal board, commission or other tribunal” as defined in the Federal Courts Act [s. 2(1) (as am. by S.C. 2002, c. 8, s. 15)], or of the availability of judicial review in respect of a decision made pursuant to a “policy.” Following the hearing on October 10, 2007, a direction was issued on October 12, 2007, giving the parties the opportunity to address these issues by way of further submissions. Each party filed further submissions addressing these two matters.
[42]The applicant submits that the PSIO does meet the definition of “federal board, commission or other tribunal”, as set out in subsection 2(1) of the Federal Courts Act. In this regard, he relies on the decisions in Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557 (T.D.), as well as Chopra v. Canada (Attorney General) (2005), 273 F.T.R. 200 (F.C.).
[43]The applicant also submits that the decision made pursuant to the policy is subject to judicial review. In this regard, he relies on the decision in Fennelly v. Canada (Attorney General) (2005), 279 F.T.R. 262 (F.C.) which in turn cites the Federal Court of Appeal decision in Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 (F.C.A.). In Fennelly, Justice Kelen noted that in Jada Fishing, the Federal Court of Appeal examined the reasonableness of an appeal board recommendation and its respect for the requirements of procedural fairness. In Jada Fishing, the Federal Court of Appeal concluded that the Appeal Board report and recommendation could be reviewed.
[44]The applicant submits that the policy at issue in this case is similarly subject to judicial review. The applicant further argues that the policy at issue here is stronger than most “mere policies.” He submits that since the PSIO was appointed by the Governor in Council, the Governor in Council has “at least implicitly required” that the PSIO abide by the terms of the policy. According to the applicant, the policy operates as the governing statute and specifies the jurisdiction of the PSIO.
[45]The intervener similarly argues that the PSIO meets the definition of “federal board, commission or other tribunal” as set out in the Federal Courts Act. Further, he describes the policy as providing a unique mechanism within the federal public service that gives public servants an opportunity to report on wrongdoing. While the PSIO acknowledges that the policy is not delegated legislation, delegated regulation, or issued pursuant to a clear statutory requirement, he nonetheless submits that the policy is a directive for the management of the public service.
[46]Relying on this characterization of the policy, the intervener submits that a directive can be defined or enforced through judicial review and in this regard, he cites the decision in Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220 (F.C.).
[47]The PSIO argues that the policy formalizes a disclosure investigation process where there are no other legal mechanisms available for independent review of allegations of wrongdoing, and that he represents the government’s attempt to balance the need for loyalty with the facilitation of whistleblowing in the federal public service. He describes the general procedure for investigating disclosure under the policy, but maintains that reprisal complaints are dealt with separately under the Public Service Staff Relations Act, R.S.C., 1985, c. P‑35.
[48]The PSIO refers to the decision in Vaughan v. Canada, [2005] 1 S.C.R. 146 and submits that this decision stands for the proposition that the courts have no jurisdiction, except in the limited context of judicial review, in the resolution of labour disputes governed by comprehensive codes such as the Public Service Staff Relations Act. At the same time, he notes that Justice Binnie, in Vaughan, suggested that whistleblowing may represent an exception to this general rule. In addition, the PSIO submits that Glowinski v. Canada (Treasury Board) (2006), 286 F.T.R. 217 (F.C.) stands for the proposition that the Court should not attempt to reconcile inconsistent and conflicting Treasury Board policies.
[49]Further, the PSIO relies on the decisions in Larny Holdings Ltd. v. Canada (Minister of Health), [2003] 1 F.C. 541 (T.D.) and Jada Fishing, in support of his argument that the decision of the PSIO is amenable to judicial review.
[50]In conclusion, the PSIO submits that although his responsibilities were created by an administrative statute, he is required pursuant to the policy to prepare an annual report to be tabled in Parliament. The PSIO submits that this responsibility is distinct from that assigned to other administrative units created under the policy and that decisions made pursuant to the policy are subject to judicial review.
[51]The respondent, for his part, argues that the PSIO is a “federal board, commission or other tribunal” within the definition set out in subsection 2(1) of the Federal Courts Act. However, he further submits that the final report and non‑binding recommendations made by the PSIO are not reviewable matters pursuant to section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] of the Federal Courts Act. In this regard, the respondent relies on the decision in Jada Fishing and further refers to the decision in Rothmans, Benson & Hedges Inc. v. Canada (Minister of National Revenue—M.N.R.), [1998] 2 C.T.C. 176 (F.C.T.D.). As in Rothmans, the respondent submits that the PSIO’s report and recommendations here are not subject to judicial review because they do not affect the applicant’s substantive rights.
V. Discussion and Disposition
[52]The present proceeding concerns an investigation and report conducted by the PSIO pursuant to the policy. I agree with the submissions of the respondent that the policy was enacted pursuant to subsection 11(2) of the Financial Administration Act, in particular paragraph 11(2)(i). At the relevant time, that paragraph read as follows:
11. . . .
(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
. . .
(i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service.
[53]The policy defines “disclosure” as follows:
. . . information raised within the organization in good faith, based on reasonable belief, by one or more employees concerning a wrongdoing that someone has committed or intends to commit.
[54]“Wrongdoing” is defined in the policy as follows:
. . . an act or omission concerning:
(a) a violation of any law or regulation; or
(b) a breach of the Values and Ethics for the Public Service; or
(c) misuse of public funds or assets; or
(d) gross mismanagement; or
(e) a substantial and specific danger to the life, health and safety of Canadians or the environment.
[55]This matter relates to a decision of the PSIO. The office of the PSIO is relatively new and Chopra is the only other reported decision to date to consider the role that it plays. However, that decision does not address the status of the PSIO as a “federal board, commission or other tribunal” or the availability of judicial review with respect to a decision by that office. For the reasons that follow, I find that the PSIO is a federal board, commission or other tribunal. However, I am of the view that the challenged decision and recommendations are not reviewable matters pursuant to section 18.1 of the Federal Courts Act.
[56]With respect to the status of the PSIO, I refer to the definition of “federal board, commission or other tribunal” set out in subsection 2(1) of the Federal Courts Act as follows:
2. (1) In this Act,
. . .
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
[57]The language of this definition is broad. The PSIO is not excluded from the definition on the basis that he is only one person, or under any of the exceptions set out in the definition. In my opinion, the only question to be addressed in determining the status of the PSIO is whether, in conducting his investigation and issuing a final report, the PSIO was “exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown.”
[58]All parties rely on the decision in Puccini in support of their submissions that the office of the PSIO meets the definition in subsection 2(1). In that case, the Court held that a supervisor acting pursuant to a Treasury Board harassment policy made under the authority of the Financial Administration Act was a federal board. In the present case, a similar question arises. Specifically, it is necessary to determine whether the PSIO as a federal investigative body acting pursuant to a Treasury Board disclosure policy made under the authority of the Financial Administration Act is a federal board. In my opinion, there is no basis to distinguish the present case from Puccini. I conclude that the PSIO fulfils the definition set forth in subsection 2(1) of the Federal Courts Act of a “federal board, commission or other tribunal”.
[59]This conclusion is also supported by the decision in Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694, where the Court of Appeal suggested that the words “powers conferred by or under an Act of Parliament” should be given a broad meaning.
[60]I turn now to the second issue relating to the jurisdiction of this Court, that is whether the report and recommendations of the PSIO constitute a decision that is amenable to judicial review. The central issue in answering this question is whether the report and recommendations affect a party’s substantive rights or carry legal consequences.
[61]In Jada Fishing, the Federal Court of Appeal adjudicated an appeal from an order dismissing an application for judicial review of a decision by the Groundfish Panel of the Pacific Region Licence Appeal Board, as adopted by the Minister of Fisheries and Oceans. The initial decision dealt with the appellants’ allocated individual vessel “quotas” for a fishing licence.
[62]The Court of Appeal held that the decision of the Panel was not prima facie reviewable because the Panel [at paragraph 12] “was without statutory authority and merely made recommendations which the Minister was entitled to accept or reject.” Ultimately, the Court did review the Panel’s recommendations but only in so far as they were “inexorably connected” to the Minister’s final decision that was made pursuant to section 7 of the Fisheries Act, R.S.C., 1985, c. F‑14.
[63]In my view, in Jada Fishing the Federal Court of Appeal determined that the Panel’s recommendations and report were not reviewable primarily on the basis that they did not fall within the scope of reviewable matters set out in section 18 of the Federal Courts Act. The Court’s observation that the Panel “merely made recommendations which the Minister was entitled to accept or reject” is central to its conclusion that those recommendations were not, in and of themselves, subject to judicial review.
[64]In Larny Holdings, this Court concluded that the decision of a Health Canada manager was subject to judicial review where the subject of the application for judicial review was a “direction” issued to the operator of a chain of convenience stores. The direction at issue set out Health Canada’s position that section 29 of the Tobacco Act, S.C. 1997, c. T‑13 prohibits vendors from offering cash rebates on the purchase of multiple packs of cigarettes or other tobacco products. In holding that the decision was reviewable, this Court emphasized that a broad range of matters are subject to review pursuant to section 18 of the Federal Courts Act.
[65]However, the Court was equally clear that the scope of matters subject to judicial review under section 18 of the Act does not extend to all decisions, orders, Acts or proceedings by federal boards, commissions and tribunals. Rather, it suggested that those decisions and orders that [at paragraph 18] “determine a party’s rights” will be subject to judicial review. With respect to the matter before it, the Court explained at paragraphs 24‑25 how the decision at issue did determine a party’s rights:
The direction sent by the respondents is, in my view, coercive, in that the purpose thereof is to threaten the applicant to immediately stop selling the multi‑packs, failing which a charge would be laid and criminal prosecution might be commenced. I have no doubt that what the respondents hoped for was what in fact happened, i.e. that the applicant would stop selling multi‑packs so as to avoid criminal prosecution. As I have already indicated, the applicant’s decision to stop selling multi‑packs has resulted in financial loss.
I am therefore of the view that the letter sent by Mr. Zawilinski is a “decision, order, act or proceeding” and is reviewable by this Court. I also have no hesitation in concluding that in sending the direction, Mr. Zawilinski was a “federal board, commission or other tribuna” within the meaning of subsection 2(1) of the Act. . . .
[66]Similarly, the result in Rothmans seemed to turn on the determination of whether the decision at issue meaningfully affected the party’s substantive rights. That case involved a motion to strike an originating notice of motion, which in turn was seeking an order quashing an advance tax ruling issued by the Department of Revenue. The Court was of the view that the advance tax ruling did not have any meaningful effect on the applicant’s rights and said the following at paragraph 28:
The advance ruling does not grant or deny a right, nor does it have any legal consequences. . . . It does not have the legal effect of settling the matter or purport to do so. It is at the most a non‑binding opinion. Moreover, there is no evidence that any tax has been levied on a product corresponding to the prototype of the product in the advance ruling. [References omitted.]
At paragraph 29, the Court went on to conclude “that the ruling in the letter from Revenue is not a ‘decision’ within the meaning of section 18.1 of the Federal Court Act.”
[67]In the present case, the policy was adopted pursuant to subsection 11(2) of the Financial Administration Act. The focus of the policy is described in its preamble which explains that public servants are to balance their duty of loyalty to their employer and the public interest in using government information with making disclosures of wrongdoing in accordance with the policy. Under the policy, the PSIO’s mandate is to “act as a neutral entity on matters of internal disclosure.”
[68]However, at the end of the process, the PSIO is authorized only to make recommendations with respect to findings of wrongdoing. These recommendations are non‑binding on the deputy head of the department involved, who is the actor that holds the actual decision‑making authority. The PSIO’s final report and recommendations do not determine the applicant’s substantive rights or carry legal consequences as required by the jurisprudence, and are thus not matters subject to judicial review.
[69]The applicant has argued that the policy is without value if the PSIO is unable to give effect to the results of an investigation into wrongdoing in the workplace. The utility or the impotence of a government policy, as the case may be, is a subject beyond review by this Court. In this regard, I refer to Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 349 (QL), and Girard v. Canada (1994), 79 F.T.R. 219 (F.C.T.D.). Accordingly, this application for judicial review cannot succeed.
[70]Nonetheless, I question whether the investigation conducted by the PSIO in this case met the standards of procedural fairness. Representatives of the IRB were intimately involved in the investigation undertaken by the PSIO in 2004. The active involvement of the IRB is demonstrated in certain e-mails and file memoranda. As illustration, an e-mail dated March 26, 2004 from counsel for the PSIO to certain members of the PSIO office reads:
Judith:
As discussed, you will find attached a summary of our (André and I) telephone conversation with Paul Aterman, General Counsel, IRB. The approach would be similar to DIAND where they will contract out the investigation of allegations 1 to 5, allowing PSIO (Judith) to meet with the investigator, review the terms of reference, and obtain progress report. On the other allegations 6 to 10, I indicated to Mr. Aterman that although Mr. Pieters had file [sic] an harassment complaint and an investigation under the Harassment Policy is being conducted, the PSIO still has to make a determination on the allegations of reprisal. They initially thought that PSIO would not deal with those allegations. I mentioned that Judith is reviewing them and will most probably need additional information from IRB and Pieters.
[71]In a later e-mail dated March 26, 2004 to certain members of the Public Service Integrity Office, counsel for the PSIO states:
Judith:
As discussed, IRB has to decide fairly quickly how to act with respect to the first 5 allegations to correct the breach of natural justice, if any. Once that is agreed on both sides (PSIO and IRB), we will have to communicate this to Mr. Pieters. This is, in my opinion, what we may want to discuss at the next Monday meeting.
[72]Counsel for the PSIO expressed some concerns about respect for procedural fairness, as is reflected from the following e-mail to the executive director of the Public Service Integrity Office and a senior investigator of the Public Service Integrity Office dated April 14, 2004, as follows:
Dear Judith and Pierre,
Martine and I discussed the request sumitted by Jean Bélanger, DG, HR, IRB to receive a copy of M. Pieters’ letter dated April 5 and enclosures. I fully agree with Martine that it would be unwise to agree to this request without first determining the relevance of the documents submitted by M. Pieters in the course of our investigation. Any hasty reply to the IRB request could tarnish the PSIO’s reputation. Once the relevance of these documents has been established, a determination will have to be made as to whether or not the PSIO requires M. Pieters’ consent to disclose the documents. In some cases, the rules of natural justice and procedural fairness would not require M. Pieters’ consent; however, in other cases, especially those involving his private information, his consent may be required. We will only be able to make that determination as the investigation progresses and following and assessment of each document and of the information contained therein. Our process would therefore not be submitted to the will of the Board, in a similar way to what was decided with the Ratushny inquiry.
[73]In an earlier e-mail to counsel for the Public Service Integrity Office dated March 29, 2004, a senior investigator at the Public Service Integrity Office stated:
Before we make any agreement with the IRB I would like us to have had the chance to speak to Mr. Pieters about this and his other allegations, if only to make contact with him and hear him out a bit. As well, providing him with an indication that we have agreed with the IRB on anything, before we have had the chance to discuss his case, may not appear to him as though we are acting in a neutral fashion. I know that the media circus adds pressure to these types of cases, however, acting prematurely and not allowing us to examine the allegations before acting may place us in a vulnerable position — i.e. having to defend the basis for our actions or acting outside of our established procedures.
[74]As well, the applicant referred to an e-mail, dated May 25, 2005, from the PSIO to Ms. Judith Buchanan, Senior Investigator with the Public Service Integrity Office which reads as follows:
I don’t take at all kindly to yet another response from Pieters when he has already submitted his response to the preliminary draft and we considered all those points in the final version about be [sic] completed, with one more issue to be settled by your forthcoming [sic] trip to Toronto.
I am therefore not inclined to respond or consider all these additional points. He had his opportunity and we cannot keep re‑opening his case and revising our report.
He has already practically tied up all our limited resources for months and I consider that the final report deals comprehenively [sic] and fairly with all the issues that can reasonably be considered relevant and within my jurisdiction.
Let’s see if we can wrap the report up very soon before we receive yet more second, third and fourth thoughts from him.
[75]This expression of frustration by the Public Service Integrity Office may not, by itself, be sufficient to support a finding of breach of procedural fairness. However, in my opinion, the cumulative effect of the various communications noted above, together with this e-mail, casts doubt on the degree of impartiality with which this investigation was ultimately conducted.
[76]Notwithstanding these concerns, the above conclusions on jurisdiction are determinative and this application for judicial review is dismissed.
VI. Costs
[77]If the applicant and the respondent cannot agree on costs, they may make brief submissions on the matter according to the following schedule:
(i) The applicant shall serve and file his submissions on costs within two weeks of the date of this order;
(ii) The respondent shall serve and file his submissions within ten days of the receipt of the applicant’s submissions; and
(iii) The applicant may file a brief reply within five days of receipt of the respondent’s submissions.
[78]There shall be no costs for or against the intervener.
ORDER
The application for judicial review is dismissed. If the parties cannot agree on costs, submissions may be made in accordance with the schedule outlined in paragraph 77 of the reasons for order.