A-333-04
2005 FCA 249
Dr. Margaret Haydon (Appellant)
v.
Her Majesty the Queen (Respondent)
Indexed as: Haydon v. Canada (Treasury Board) (F.C.A)
Federal Court of Appeal, Desjardins, Sharlow and Malone JJ.A.--Ottawa, May 17 and June 30, 2005.
Public Service -- Labour Relations -- Appeal from Federal Court's dismissal of application for judicial review of PSSRA Adjudicator's decision employer had just, sufficient cause to suspend appellant after she publicly commented on Canadian Food Inspection Agency's recommendation to suspend importation of Brazilian beef -- Legal balance between duty of loyalty to employer of federal public servant, individual freedom of expression embodied in Charter -- Duty of loyalty may limit public servant's freedom of expression -- Federal Court correctly finding appellant's statements adversely impacting employer's operations -- Appeal dismissed.
Constitutional Law -- Charter of Rights -- Fundamental Freedoms -- Freedom of expression -- Appellant, Health Canada scientist, suspended after publicly commenting on government's decision to ban Brazilian beef -- Proper legal balance between right of individual to freedom of expression guaranteed by Charter, s. 2(b), duty of loyalty owed by public servant to employer -- "Freedom of expression" must be qualified, balanced against other important, competing values, i.e. value of impartial, effective public service -- Duty of loyalty may, in certain circumstances, limit public servant's freedom of expression -- Appellant's statements adversely impacting Government of Canada's operations.
Administrative Law -- Judicial Review -- Standard of Review -- Federal Court concluding standard of review to be applied to decision of Adjudicator appointed under Public Service Staff Relations Act patent unreasonableness -- However, with respect to interpretation of Charter, proper standard of review correctness -- Pragmatic, functional analysis applied to determine applicable standard of review -- Privative clause repealed -- Court having greater expertise than Adjudicator with respect to interpretation of common law duty in face of Charter rights -- Purpose of PSSRA versus need to protect individual's Charter rights -- Issues herein fact-intensive -- Appropriate standard of review reasonableness simpliciter -- Federal Court misstating, but in fact applying correct standard.
This was an appeal from a Federal Court decision dismissing an application for judicial review of an adjudicator's decision allowing in part the appellant's grievance in respect of a suspension imposed upon her as a result of public comments. The appellant was a drug evaluator in the Bureau of Veterinary Drugs (BVD) at Health Canada. In February 2001, the Canadian Food Inspection Agency (CFIA) decided to suspend the importation of Brazilian beef after considering a broad range of scientific opinion at the national and international level. The decision to do so was based on what the Chief Veterinary Officer and Executive Director of the CFIA felt were potential health risks to Canadians. At the time the decision was made, Canada was embroiled in a trade dispute with Brazil concerning two aircraft manufacturers, Bombardier and Embraer S.A. In an article published in The Globe and Mail on February 9, 2001, the appellant reportedly said that the ban had nothing to do with health concerns and was more a political move because of the aircraft dispute. As a result of the comments attributed to her in The Globe and Mail, the appellant was suspended for 10 working days. She filed a grievance under subparagraph 92(1)(b)(i) of the Public Service Staff Relations Act (PSSRA) in respect of the suspension imposed on her. The Adjudicator concluded that the appellant had committed an act of culpable misconduct. He allowed the grievance and reduced the period of suspension from 10 days to five days because the appellant had not initiated contact with the media. The Federal Court dismissed the application for judicial review, concluding that the decision of the Adjudicator was neither patently unreasonable nor unreasonable and that there was no basis for judicial intervention. The issues were: (1) the appropriate standard of review, and (2) whether the employer had just and sufficient cause to suspend the appellant.
Held, the appeal should be dismissed.
(1) The Federal Court concluded that the standard of review to be applied to the Adjudicator's decision as a whole was patent unreasonableness, but that, with respect to the interpretation of the Charter, the proper standard of review was correctness. In order to set the applicable standard of review of the Adjudicator's decision, the Court embarked on a pragmatic and functional analysis. In Dr. Q v. College of Physicians and Surgeons of British Columbia, the Supreme Court of Canada held that, in the pragmatic and functional approach, the standard of review is determined by considering four contextual factors. First, the privative clause contained in the PSSRA was repealed in June 1993. While the absence of a privative clause is suggestive of a more stringent standard of review, it is not conclusive when other factors bespeak a low standard. Second, the Adjudicator is a highly specialized tribunal, more expert than the courts when considering employee misconduct. But when interpreting a common law duty in the face of Charter rights, the Court has an important responsibility and a greater expertise. Third, one of the purposes of the PSSRA is to establish a system of grievance adjudication to secure prompt, final and binding settlement of disciplinary action by the employer. However, Charter issues such as freedom of expression require that the Court take a good look at the decision in order to make sure that the rights of an individual and of a public servant are not thwarted. Fourth, in deciding whether the employer had just and sufficient cause to suspend the appellant, the Adjudicator was called upon to apply the facts to the law. In this case, the particular issues to be decided were fact-intensive. The pragmatic and functional approach led to the conclusion that the appropriate standard of review was reasonableness simpliciter. The Federal Court erred in holding that the standard of review was patent unreasonableness; however, the conclusion applied the reasonableness standard.
(2) At issue was the extent to which a public servant may publicly express opinions on controversial issues and the proper legal balance between the right of an individual to freedom of expression as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms, and the duty of loyalty owed by that individual to the employer, in this case the Government of Canada. In Fraser v. Public Service Staff Relations Board, the Supreme Court of Canada recognized the importance of a loyal public service. It indicated, however, that in some situations, freedom of expression prevails over the duty of loyalty, namely when the government is engaged in illegal acts, or if its policies jeopardize the life, health or safety of the public, and where criticism does not have an impact on a public servant's ability to perform effectively or on the perception of that ability. But "freedom of expression" is not an absolute value. It must be qualified and balanced against other important and competing values. In the instant case, it had to be considered in the light of the value of an impartial and effective public service. The duty of loyalty may, in certain circumstances, limit a public servant's freedom of expression. The Federal Court Judge made no error in holding that the appellant's reported statements did not involve public interest issues, that they did not address pressing issues such as jeopardy to public health and safety but that they had an adverse impact on the operations of the Government of Canada. He correctly concluded that the Adjudicator made no reviewable error either on a standard of patent unreasonableness or on a standard of reasonableness. The intervention of the Court of Appeal was therefore not warranted.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], preamble. |
| Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 91(1). |
| Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 92(1) (as am. by S.C. 1992, c. 54, s. 68). |
cases judicially considered
applied:
Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; (1985), 23 D.L.R. (4th) 122; 18 Admin. L.R. 72; 9 C.C.E.L. 233; 86 CLLC 14,003; 19 C.R.R. 152; 63 N.R. 161; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2002] 5 W.W.R. 1; 179 B.C.A.C. 170; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 302 N.R. 34; 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247; (2003), 257 N.B.R. (2d) 207; 223 D.L.R. (4th) 577; 48 Admin. L.R. (3d) 33; 31 C.P.C. (5th) 1; 302 N.R. 1; 2003 SCC 20.
considered:
Haydon v. Treasury Board (Health Canada), 2002 PSSRB 10; [2002] C.P.S.S.R.B. No. 5 (QL).
referred to:
Haydon v. Canada, [2001] 2 F.C. 82; (2000), 192 F.T.R. 161 (T.D.); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.
authors cited
MacKinnon, Mark. "Mad-cow ban on Brazil a `ruse', scientists say". The Globe and Mail, February 9, 2001.
APPEAL from a Federal Court decision (Haydon v. Canada (Treasury Board), [2005] 1 F.C.R. 511; (2004), 253 F.T.R. 230; 2004 FC 749) dismissing an application for judicial review of an adjudicator's decision allowing in part the appellant public servant's grievance in respect of a suspension imposed upon her as a result public comments about the government's decision to ban Brizilian beef. Appeal dismissed.
appearances:
David Yazbeck for appellant.
J. Sanderson Graham and Richard E. Fader for respondent.
solicitors of record:
Raven, Allen, Cameron, Ballantyne & Yazbeck LLP, Ottawa, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Desjardins J.A.: This is an appeal of a decision of the Federal Court (Haydon v. Canada (Treasury Board), [2005] 1 F.C.R. 511), which dismissed an application for judicial review of a decision of an adjudicator [Haydon v. Treasury Board (Health Canada), 2002 PSSRB 10] who allowed, but only in part, the appellant's grievance in respect of a suspension imposed upon her as a result of comments attributed to her in the February 9, 2001, edition of The Globe and Mail.
[2]At issue is the extent to which a public servant may publicly express opinions on controversial issues. More specifically, it concerns the proper legal balance between the right of an individual to freedom of expression as guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter), and the duty of loyalty owed by that individual to her employer, the Government of Canada.
[3]Paragraph 2(b) of the Charter reads as follows:
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of . . . expression . . .
The facts
[4]The appellant was a drug evaluator in the Bureau of Veterinary Drugs (BVD) at Health Canada, a position she held since 1983. She holds a doctor of Veterinary Medicine degree from the Western College of Veterinary Medicine at the University of Saskatchewan. Prior to commencing work as a drug evaluator, she practised as a veterinarian in Alberta, Saskatchewan and Ontario. All 10 years of practice prior to beginning her work at Health Canada were spent working directly with food-producing animals, particularly cows. As part of her continuing education as a veterinarian and because of her specific work in the BVD, she maintained an interest in the subject of bovine spongiform encephalopathy (BSE), commonly known as mad cow disease, and in transmissible spongiform encephalo-pathies (TSEs) more generally.
[5]On February 1, 2001, Dr. Evans, Chief Veterinary Officer and Executive Director of the Canadian Food Inspection Agency (CFIA) recommended to the Minister of Agriculture and Agri-Food to suspend the importation of beef products from Brazil. The decision to do so was based on what Dr. Evans felt were potential health risks to Canadians. The Minister concurred with the decision. Brazil was informed of the decision the same day. An article [by Mark MacKinnon] published in The Globe and Mail on February 9, 2001, reported statements from two "senior Health Canada scientists" on the issue. The appellant was identified by name. The other scientist remained unidentified. The following excerpt from The Globe and Mail, entitled "Mad-cow ban on Brazil a `ruse', scientists say", includes the statement attributed to the appellant:
Margaret Haydon, a Health Canada scientist once reprimanded for speaking out about internal pressures to approve a controversial bovine growth hormone, also said she believes the ban has nothing to do with health concerns.
| "In my opinion, I don't think there's any difference [in risk] between Brazilian beef and Canadian beef. With the aircraft dispute, it's more a political move than a health one for the Canadian government". |
[6]According to the evidence, the CFIA made the decision to suspend the importation of Brazilian beef after considering a broad range of scientific opinion at the national and international level. It relied in part on a policy respecting the control of BSE risks that was developed by Ms. Diane Kirkpatrick, the Director General of the Veterinary Drugs Directorate, and a team of experts from Health Canada working in conjunction with CFIA employees. The appellant was not a member of the science teams assembled by Health Canada to assess the impact of the infectious diseases in question and her Division was not responsible for such assessments.
[7]At the time the decision was made, Canada was embroiled in a trade dispute with Brazil concerning two aircraft manufacturers, Bombardier and Embraer S.A. This trade dispute had been the subject of many press reports and was widely known.
[8]In light of the appellant's comments, the Chief Veterinary Officer for the United States called Dr. Evans and questioned Health Canada's initial position in light of the appellant's statement. Dr. Evans indicated that he had not received anything from Health Canada retracting their support; therefore, their official position had not changed. The Chief Veterinary Officer with the Brazilian government also contacted Dr. Evans and sought to cancel an upcoming trip because the concerns appeared not to be health related. Dr. Evans explained to his Brazilian counterpart that the trip was essential in order to complete a site evaluation and determine if Canada should reconsider its action. Before the Adjudicator, Dr. Evans testified that a number of technical staff, who would have otherwise been preparing for the upcoming February 13, 2001, trip had to be diverted to deal with the deluge of briefing notes prepared for the Minister in light of the appellant's comments in The Globe and Mail. Upon arriving in Brazil, there was a need for security arrangements for the multi-purpose team and Dr. Evans himself was provided with a security guard for his hotel. He had to be moved to another hotel for his safety.
[9]The appellant admitted the statements attributed to her in the internal investigation process and at the adjudication hearing. She testified that she told the reporter more than what was reported, but she acknowledged that the quote attributed to her was accurate.
[10]As a result of the comments attributed to the appellant in The Globe and Mail, Ms. Kirkpatrick, who was in charge of the Division where the appellant worked, met with the appellant to discuss the statements she was reported to have made and to determine whether there was evidence to support her concern. On February 20, 2000, Ms. Kirkpatrick informed the appellant that she would be suspended for 10 working days.
[11]The appellant filed a grievance under subpara-graph 92(1)(b)(i) [as am. by S.C. 1992, c. 54, s. 68] of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (PSSRA) in respect of the 10-day suspension imposed on her. She requested that the suspension be rescinded, that she be reimbursed all lost salary and benefits, with interest, that all related documents be destroyed and, finally, that she be compensated.
The decision of the Adjudicator
[12]The Adjudicator was called upon to decide whether the employer had just and sufficient cause to suspend the appellant or whether the appellant was entitled to speak as she did. She claimed that she was entitled to make her views known to the public pursuant to her rights under the Charter.
[13]In Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, (Fraser), the Supreme Court of Canada recognized the importance of a loyal public service. It indicated, however, that in some situations, public servants are permitted to speak out and that this right prevails over their duty of loyalty. The Supreme Court of Canada identified three situations where freedom of expression prevails over the duty of loyalty, namely whether the government is engaged in illegal acts, or if its policies jeopardize the life, health or safety of the public, and where criticism does not have an impact on a public servant's ability to perform effectively or on the perception of that ability.
[14]The Adjudicator did not see the issue before him as one where the Government was engaged in illegal acts, or where its policies jeopardized the life, health, or safety of the public. In fact, he felt that the appellant's comments indicated that it was not a health issue, but that it was rather related to the trade dispute. Citing the decision of Tremblay-Lamer J. in Haydon v. Canada, [2001] 2 F.C. 82 (T.D.) (Haydon No. 1), the Adjudicator held that the first avenue a public servant must follow, before criticizing publicly a government policy, is to raise her concern internally. He noted that the appellant made no attempt to resolve her concern through the appropriate internal channels. Consequently, the Adjudicator found that the issue of whether her comment fell within the area that permitted public comment did not need to be reviewed since this first prerequisite had not been met. The Adjudicator added that if he were wrong in reaching that conclusion, he would have concluded that the statements made by the appellant did not fall within the exception to the duty of loyalty rule as outlined in Fraser because her statement did not relate to health and safety.
[15]The Adjudicator concluded that the appellant committed an act of culpable misconduct. He allowed the grievance but reduced the period of suspension from ten days to five days after having found, as a mitigating factor, that it was the press which had contacted the appellant, and not the appellant who had initiated contact with the media.
The decision of the Federal Court Judge
[16]The Federal Court Judge dismissed the application for judicial review. He concluded that the Adjudicator did not err in finding that the appellant breached her duty of loyalty and that discipline was warranted. He decided that the decision of the Adjudicator was neither patently unreasonable nor unreasonable and that there was no basis for judicial intervention.
Issues
[17]The appellant raises two issues.
(I) The first issue is the appropriate standard of review.
(II) The second issue is whether the Adjudicator and the Federal Court Judge erred in concluding that the employer had just and sufficient cause to suspend the appellant.
Analysis
(I) The proper standard of review
[18]The Federal Court Judge, after an elaborate analysis of four well-known contextual factors established by the jurisprudence, concluded that the standard of review to be applied to the decision of the Adjudicator as a whole was patent unreasonableness. With respect, however, to the interpretation of the Charter, including the extent and limits of the constitutional rights of the appellant as defined judicially, he said that the proper standard of review was correctness.
[19]The appellant claims the standard of review is correctness. She notes that the Federal Court Judge accepted that the standard of review should be correctness with respect to the interpretation of the Charter, including the extent and limits to the constitutional rights of the applicant as defined judicially. She disagrees however with his conclusion that the decision as a whole should be reviewed on a standard of patent unreasonableness. She says that the central issues raised by this appeal concern questions of law, which include the important issue of freedom of expression under the Charter, and that the Court's expertise in these matters is greater than that of the Adjudicator. The administrative law standard, she says, should not be conflated with the Charter's standard of review.
[20]In addition, the Supreme Court of Canada, she says, has recognized that freedom of expression is entrenched as a fundamental freedom under the Charter because, in a pluralistic and democratic society, we prize "a diversity of ideas and opinions for their inherent value both to the community and to the individual." Freedom of expression ensures, she claims, that "everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful, or contrary to the mainstream" (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pages 968, 976, 978 and 979). So, where disciplinary action is imposed upon a federal public service employee for exercising freedom of expression, the employer's actions have the unmistakable effect of imposing limits which are fundamentally inconsistent with paragraph 2(b) of the Charter. As with any unconstitutional action, the employer bears a heavy burden to justify the infringement. Clear and cogent evidence supporting the constitutional violation and establishing minimal impairment of Charter rights must be tendered.
[21]In Fraser, the Supreme Court of Canada was called upon to consider whether a federal public servant had engaged in misconduct. The issue was whether an adjudicator, appointed under subsection 91(1) of the Public Service Staff Relations Act, R.S.C. 1970 c. P-35 (now subsection 92(1) of the PSSRA) erred in law in concluding that Mr. Fraser's 10-day suspension and discharge were appropriate.
[22]Fraser was a pre-Charter case. The conduct was assessed in light of constitutional values, including freedom of speech, which was characterized as a deep-rooted value in our democratic system of government found in the preamble to the Constitution Act, 1867 (30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), [R.S.C., 1985, Appendix II, No. 5]).
[23]"Freedom of expression" has now been elevated as a fundamental freedom guaranteed under paragraph 2(b) of the Charter. In view of section 1 of the Charter, it is still true to say, as it was in Fraser (page 463) that "freedom of expression" is not an absolute value. It must be qualified and balanced against other important and competing values. In the instant case, it must be considered in the light of the value of an impartial and effective public service.
[24]In order to set the applicable standard of review of the decision of the Adjudicator, recent jurisprudence teaches us that the Court must embark on a pragmatic and functional analysis. In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 (Dr. Q), McLachlin C.J. stated at paragraphs 22 and 26:
To determine standard of review on the pragmatic and functional approach, it is not enough for a reviewing court to interpret an isolated statutory provision relating to judicial review. Nor is it sufficient merely to identify a categorical or nominate error, such as bad faith, error on collateral or preliminary matters, ulterior or improper purpose, no evidence, or the consideration of an irrelevant factor. Rather, the pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo "significant searching or testing" (Southam, supra, at para. 57), or be left to the near exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.
. . .
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors--the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question--law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law.
[25]The first factor focuses generally on the statutory mechanism of review. The privative clause contained in the PSSRA was repealed as of June 1, 1993 [S.C. 1992, c. 54]. However, as Iacobucci J. said in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (Ryan), at paragraph 29:
. . . as Bastarache J. noted in Pushpanathan, supra, at para. 30, "The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard." The specialization of duties intended by the legislature may warrant deference notwithstanding the absence of a privative clause . . . .
So while the absence of a privative clause is suggestive of a more stringent standard of review, it is not conclusive when other factors bespeak a low standard.
[26]With regard to the second factor, the Adjudicator remains a highly specialized tribunal more expert than the courts when considering employee misconduct. But when interpreting a common law duty in the face of Charter rights, the Court has an important responsibility. In this case, the Court has a greater expertise with respect to the matter at stake.
[27]The third factor is the purpose of the statute. One of the purposes of the Act is establishing a system of grievance adjudication to secure prompt, final and binding settlement of disciplinary action by the employer. However, Charter issues such as freedom of expression require that the Court take a good look at the decision in order to make sure that the rights of an individual and of a civil servant are not thwarted.
[28]The final factor is the nature of the problem. In Dr. Q, McLachlin C.J. wrote at paragraph 34:
When the finding being reviewed is one of pure fact, this factor will militate in favour of showing more deference towards the tribunal's decision. Conversely, an issue of pure law counsels in favour of a more searching review. This is particularly so where the decision will be one of general importance or great precedential value: Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3, at para. 23. Finally, with respect to questions of mixed fact and law, this factor will call for more deference if the question is fact-intensive, and less deference if it is law-intensive. [My emphasis.]
In deciding whether the employer had just and sufficient cause to suspend the appellant, the Adjudicator was called upon to apply the facts to the law. In this case, the particular issues to be decided were fact-intensive.
[29]The pragmatic and functional approach leads to the conclusion that the appropriate standard of review is reasonableness simpliciter. I say so because the Adjudicator had to decide whether misconduct occurred where the freedom of expression of a civil servant was at stake.
[30]I note that in a comparable case, Ryan, the Supreme Court of Canada determined that the standard of review of a decision of the Discipline Committee of the Law Society of New Brunswick on the appropriate sanction for professional misconduct was reasonableness simpliciter.
[31]In setting the appropriate standard of review for the Adjudicator's decision, the Federal Court Judge must be correct. I find therefore that he erred at paragraph 38 of his reasons when he stated that the standard of review was patent unreasonableness. In his conclusion, however, he added that he would arrive at the same result on the reasonableness standard. To that extent, he did not err.
[32]In Ryan, the Supreme Court of Canada provided guiding principles to be applied in cases where the standard is reasonableness simpliciter (paragraphs 48-49, 52-56):
Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, supra, at para. 61). In Southam, at para. 56, the Court described the standard of reasonableness simpliciter:
| An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis added.] |
This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and "look to see" whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons (Baker, supra, at para. 65, per L'Heureux-Dubé J. citing D. Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286).
. . .
The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect". Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.
A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after "significant searching or testing" (Southam, supra, at para. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did.
How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness? The answer is that a reviewing court must look to the reasons given by the tribunal.
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [My emphasis.]
| (II) Whether the Adjudicator and the Federal Court Judge erred in concluding that the employer had just and sufficient cause to suspend the appellant |
[33]The appellant did not argue that the duty of loyalty was not a reasonable and justifiable limit on an employee's freedom of expression within the meaning of section 1 of the Charter. This issue was canvassed in the case of Haydon No. 1, where Tremblay-Lamer J. proceeded with a detailed analysis of the matter (paragraphs 61-89) and concluded that (at paragraph 89):
. . . the common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter.
[34]I therefore start my analysis with the decision in Fraser, which the Adjudicator and the Federal Court Judge both applied.
[35]There are two competing values at stake in the case at bar: the common law duty of loyalty of a federal public servant and freedom of expression embodied in the Charter. A balance must be struck between the employee's freedom of expression and the government's desire to preserve the neutrality and impartiality, both actual and perceived, of the public service.
[36]Fraser teaches us that the act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be "silent members of society" (page 466).
[37]On the other hand, it is equally obvious that freedom of expression is not an absolute, unqualified value. As explained in Fraser, the Public Service of Canada is part of the executive branch of government. Its fundamental task is to administer and implement policy decided upon and enunciated by the legislature. In order to do this well, the public service must employ people with knowledge, fairness, integrity and loyalty. The duty of loyalty may, in certain circumstances, limit a public servant's freedom of expression.
[38]The duty of loyalty was described at length in Fraser. Dickson C.J. wrote, at page 470:
As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government. [My emphasis.]
[39]The appellant submits that the Adjudicator and the Federal Court Judge erred in finding that the appellant's comments did not concern health and safety. By calling the ban a political decision, she says, persons such as the appellant were clearly questioning Canada's commitment to the health of Canadians. There is, says the appellant, no doubt that the appellant was expressing a view regarding a health matter.
[40]The Adjudicator found that in stating that there was no difference in risk between Brazilian beef and Canadian beef, the appellant's comments did not fall within the exceptions to the duty of loyalty recognized in Fraser. She was not denouncing a policy which jeopardized the life, health or safety of Canadians. She was commenting on the decision of the CFIA, which she felt was a political move. The Federal Court Judge, at paragraph 69 of his reasons, found that the Adjudicator did not err in law and that his decision was one that could reasonably have been made based on the evidence on the record. The Federal Court Judge held that this was not a case of "whistleblowing". In his view, the appellant's reported statements did not involve public interest issues of the same order as in Haydon No. 1. They did not address pressing issues such as jeopardy to public health and safety (or government illegality). Moreover, he wrote, the evidence revealed that the appellant did not check her facts nor did she raise her concern internally before speaking to The Globe and Mail. Her statements did not appear to be accurate. They nevertheless carried significant weight because she was a scientist. Her comments had an adverse impact on the operations of the Government of Canada. As a result, he said, the Adjudicator made no reviewable error neither on a standard of patent unreasonableness nor on a standard of reasonableness. I find no error in that conclusion.
[41]The appellant further submits that the Federal Court Judge and the Adjudicator failed to address whether the appellant's remarks had any impact on the performance of her duties or on the public perception of that performance. She states that no direct evidence was tendered to demonstrate that she could no longer properly perform her duties because of her comments.
[42]In Fraser, the Supreme Court of Canada stated at pages 468-469 that "[a] job in the public service has two dimensions, one related to the employee's tasks and how he or she performs them, the other relating to the perception of a job held by the public". The Court found that direct evidence should be tendered in order to show impairment but that the rule was not absolute and that an inference could be made in some circumstances. The Court says at page 472:
As to impairment to perform the specific job, I think the general rule should be that direct evidence of impairment is required. However, this rule is not absolute. When, as here, the nature of the public servant's occupation is both important and sensitive and when, as here, the substance, form and context of the public servant's criticism is extreme, then an inference of impairment can be drawn. [My emphasis.]
[43]The respondent tendered two affidavits dealing with the impact of the appellant's comment on the public and the Agency. They were those of Dr. Evans, the head of CFIA, and Ms. Kirkpatrick of Health Canada.
[44]The Adjudicator noted the weight her opinion carried , "She was a scientist with Health Canada saying this was not a health issue. At the very least", he wrote, "this would have caused confusion among members of the public, and it certainly led to disruption within the Department" (at paragraph 87) (my emphasis).
[45]In doing so, the Adjudicator made an inference followed by a finding of fact.
[46]The Federal Court Judge stated, in his paragraph 64:
The applicant also submits that the Adjudicator failed to address whether her remarks had any impact upon the performance of her duties or the public perception of that performance. While the employer did question the applicant's judgment, no evidence was tendered to show how that affected the performance of her duties. I note that the Adjudicator does not specifically comment on the impact of the applicant's comments on the performance of her duties. This is not surprising since, contrary to the Fraser, case, the applicant was not discharged but simply suspended for a 10-day period. However, the Adjudicator did comment on the general public's perception of the effect of her statement on the execution of her duties, as well as on the impact these statements had within the Government vis-à-vis their counterpart outside Canada. It is clear from the evidence accepted by the Adjudicator that the applicant's comments affected the perception of her ability to conduct her duties effectively and that her criticism also had an impact on the perception of the operations and integrity of the CFIA and Health Canada. The Adjudicator's findings in this regard are not patently unreasonable. Therefore, I fail to see any reviewable error. [My emphasis.]
[47]The appellant's position on this point has no merit. The Federal Court Judge noted that the Adjudicator addressed the impact of the appellant's statement both on her department and on the public perception of her ability to conduct her duties effectively.
[48]The Federal Court Judge erred, as I said earlier, when he found that the findings of the Adjudicator on the public perception of that performance was to be reviewed on the standard of patent unreasonableness. He however also later applied the standard of reasonableness and found that the Adjudicator's decision was not unreasonable. The intervention of this Court is therefore not warranted.
Conclusion
[49]I would dismiss this appeal with costs.
Sharlow J.A.: I agree.
Malone J.A.: I agree.