T-103-04
2005 FC 958
Dr. Shiv Chopra (Applicant)
v.
Her Majesty the Queen in right of Canada as represented by Treasury Board (Respondent)
Indexed as: Chopra v. Canada (Treasury Board) (F.C.)
Federal Court, MacKay D.J.--Ottawa, December 7, 2004; Halifax, July 8, 2005.
Public Service -- Labour Relations -- Grievance -- Judicial review of adjudicator's decision under Public Service Staff Relations Act dismissing applicant's grievance of five-day work suspension -- Applicant, Health Canada microbiologist, veterinarian, making comments reported in media in fall 2001 -- Comments highly critical of Health Canada's decision to stockpile drugs to deal with bioterrorism threat -- Following meetings with applicant to discuss issue, supervisor informing applicant conduct contrary to duty of loyalty to employer, imposing five-day work suspension -- Adjudicator upholding suspension -- Public servant owing employer duty of loyalty precluding comments adverse to, in favour of, perceived motives, values of government policy initiatives unless comments falling within exceptions established by S.C.C. in Fraser v. Public Service Staff Relations Board -- Adjudicator overstating principle in Haydon v. Canada by stating public servants wishing to criticize government having to attempt internal resolution first -- Adjudicator also erring in stating public servant's statements generally having to be supported by evidence -- These errors not crucial to determination nature of applicant's comments raising questions of impartiality, effectiveness as public servant -- Inferences of fact re: tension between applicant, supervisor impeding work, impairing usefulness as public servant, not patently unreasonable -- Assessment duty of loyalty breached not unreasonable -- Application dismissed -- Each party bearing own costs as issue raised one of continuing concern.
Constitutional Law -- Charter of Rights -- Fundamental Freedoms -- Limit on freedom of expression (Charter, s. 2(b)) imposed by duty of loyalty to employer acceptable limitation under Charter, s. 1 when that duty properly applied.
Administrative Law -- Judicial Review -- Certiorari -- Standard of review -- Decision on issues of law reviewable on standard of correctness -- For matters within Public Service Staff Relations Act adjudicator's traditional jurisdiction, standard patent unreasonableness -- Reasonableness standard for mixed fact/law question relating to applicant's behaviour and disciplinary measure imposed -- Procedural fairness -- Fact applicant not cross-examined re: adjudi-cator's credibility concerns unfortunate but issue not one on which decision rested.
This was an application for judicial review of a decision of the Public Service Staff Relations Board Chairperson dismissing the applicant's grievance. The Chairperson, acting as an adjudicator under the Public Service Staff Relations Act, upheld the applicant's five-day suspension from work imposed by his employer, the Government of Canada.
The case concerned the applicant's freedom of expression under paragraph 2(b) of the Canadian Charter of Rights and Freedoms, in light of the duty of loyalty owed by a public service employee to his or her employer. More specifically, the issue was whether the duty of loyalty, as given effect by the adjudicator here, was a reasonable limitation under section 1 of the Charter of the applicant's guaranteed right to freedom of expression.
The applicant, a microbiologist and a veterinarian employed at Health Canada in 2001, was suspended for comments that he had made that were reported in the media. The facts giving rise to the suspension were the following. To deal with the apprehended threat of bioterrorism following September 11, 2001, Health Canada established an Emergency Response Team, which recommended the stockpiling of antibiotics and vaccines to combat anthrax and smallpox. On four occasions the applicant made highly critical comments of Health Canada's decision to stockpile drugs, following which, his supervisor convened "fact finding meetings" and raised a number of questions with him. The applicant acknowledged that the quotations attributed to him in the news media were accurate, and several months after the last of the incidents of concern, his supervisor wrote to him, informing him that his conduct was wrong and stressing the duty of loyalty owed by public servants to their employer. The letter also advised the applicant of his five-day suspension from work without pay. That decision was upheld by the adjudicator, whose decision was the subject of this judicial review application.
Held, the application should be dismissed.
What gave rise to the perception that the applicant's comments breached his duty of loyalty as a public servant was his public attribution of questionable motives, unrelated to public health purposes, to the Minister and to his Department. A public servant in the position of the applicant owes a duty of loyalty to his employer that precludes public comments adverse to or in favour of perceived motives or values of policy initiatives of government, unless the comments clearly fall within the exceptions established by the S.C.C. in Fraser v. Public Service Staff Relations Board.
The standard of review of the adjudicator's decision is correctness with regard to issues of law. Matters within the traditional jurisdiction of an adjudicator are reviewable on the standard of patent unreasonableness. Whether the applicant's conduct breached his duty of loyalty and if so, whether it warranted the disciplinary measure imposed, are interrelated questions of mixed fact and law, reviewable on the standard of reasonableness.
The limit imposed by the proper application of the duty of loyalty to a public servant is an acceptable limitation under section 1 of the Charter of the freedom of opinion and expression. At issue here was whether the duty of loyalty was properly applied by the adjudicator.
The adjudicator did not err by not considering the applicant's comments within an exception to the duty of loyalty said to be created by the words "matters of legitimate public concern" in Haydon v. Canada. Those words did not constitute a further exception to the duty of loyalty set out in Fraser. The adjudicator did however overstate the principle described in Haydon when he said that public servants who wish to criticize government policies publicly should as a general rule make reasonable attempts to resolve the matter internally. Still, the adjudicator, in his decision, relied on the nature of the comments made by the applicant, not the latter's failure to clarify his concerns internally. The adjudicator's ultimate conclusion was thus not dependent on this error. The adjudicator also erred when he stated, based on Grahn v. Canada (Treasury Board), that generally, the truth or sustainability of critical public comments made by a public servant should be supported by evidence. Such evidence has no significance where the comments are expressions of opinion, not subject to proof by evidence.
With regard to procedural fairness, the fact that the applicant was not cross-examined on the parts of his testimony with which the adjudicator had credibility concerns was unfortunate. However, this issue was not a basic one on which the adjudicator's decision rested.
The ultimate decisions were not dependent on the above-mentioned errors as these errors were not crucial to the determination that the nature of the comments of the applicant raised questions about his impartiality and effectiveness as a public servant. The adjudicator concluded that the tension between the applicant and his supervisor "would create an impediment to [the applicant's] ability to perform his work." He also concluded that the applicant's "repeated comments, which went beyond the realm of acceptable scientific debate, impaired his usefulness as a public servant." These inferences of fact were not patently unreasonable. And the adjudicator's assessment that in the circumstances, the applicant had breached the duty of loyalty owed by him as a public servant, by his conduct in expressing his opinions and attributing inappropriate motives to the Minister and to his Department, was not unreasonable.
Because the issue raised in the application was of continuing concern (i.e. the lawful limits on a public servant's freedom of opinion and expression guaranteed by the Charter, which limits arise from the duty of loyalty to the employer), and the case assisted in refining those limits, each party was ordered to bear its own costs.
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).
| Public Service Staff Relations Act, R.S.C., 1985, c. P-35. |
cases judicially considered
applied:
Haydon v. Canada, [2001] 2 F.C. 82; (2000), 192 F.T.R. 161 (T.D.); Haydon v. Canada (Treasury Board), [2005] 1 F.C.R. 511; (2004), 253 F.T.R. 230; 2004 FC 749; affd 2005 FCA 249; [2005] F.C.J. No. 1146 (QL); 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.
considered:
Grahn v. Canada (Treasury Board) (1987), 91 N.R. 394 (F.C.A.); Chopra v. Treasury Board (Health Canada) (2001), 96 L.A.C. (4th) 367; 2001 PSSRB 23.
referred to:
Forgie v. Treasury Board (Immigration Appeal Board), [1986] C.P.S.S.R.B. No. 310 (QL).
APPLICATION for judicial review of an adjudicator's decision (2003 PSSRB 115; [2003] C.P.S.S.R.B. No. 95 (QL)) under the Public Service Staff Relations Act upholding the applicant's work suspension for comments made that breached the duty of loyalty he owed to his employer, the Government of Canada. Application dismissed.
appearances:
David G. Yazbeck for applicant.
Patrick D. Bendin and Richard E. Fader for respondent.
solicitors of record:
Raven, Allen, Cameron, Ballantyne & Yazbeck LLP, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]MacKay D.J.: The applicant, Dr. Chopra, seeks judicial review and an order setting aside a decision dated December 17, 2003 [2003 PSSRB 115], of the Chairperson of the Public Service Staff Relations Board acting as an adjudicator under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 as amended (the Act). That decision dismissed a grievance of the applicant and upheld a five-day suspension from work without pay imposed upon him by his employer, the Government of Canada.
[2]The application raises the issue of appropriate limits by disciplinary action on the exercise of free speech for public statements made in the fall of 2001 by Dr. Chopra. He is a microbiologist and a veterinarian, a long-time public servant then employed in the Human Safety Division of the Veterinary Drugs Directorate (VDD) of Health Canada. The case concerns his right to free expression under 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]], in light of the duty of loyalty owed by a public service employee to his or her employer as that duty was applied in this case.
[3]The case does not directly raise the Charter issue for decision. The respondent as employer does not dispute that Dr. Chopra's duty of loyalty as a public servant, as recognized in common law may limit his freedom, but that duty as given effect by the adjudicator here, is a reasonable limitation under section 1 of the Charter on his freedom of opinion and expression, as guaranteed by paragraph 2(b) of the Charter. For this, the respondent relies upon the decision of Madam Justice Tremblay-Lamer in Haydon v. Canada, [2001] 2 F.C. 82 (T.D.), at paragraphs 63-89 [hereinafter Haydon (No. 1)] and as applied by Mr. Justice Martineau in Haydon v. Canada (Treasury Board), [2005] 1 F.C.R. 511 (F.C.) at paragraph 69 [hereinafter Haydon No. 2)], upheld on appeal 2005 FCA 249.
Summary of the facts
[4]In the period of uncertainty and apprehension shortly after the tragic events of September 11, 2001, widely referred to as "9/11", concern was raised among the public, in the United States and in Canada, about possibilities of bioterrorism, particularly involving the possible use of pathogens such as anthrax and smallpox. To deal with this apprehended threat Health Canada established an Emergency Response Team (ERT) to advise the Minister of Health on risks from bioterrorism and measures to deal with those risks.
[5]ERT recommended, among other matters, the stockpiling of antibiotics and vaccines to combat anthrax and smallpox if they should be unleashed by a terrorist attack. This advice was based on broad consultation within a department committee, among federal govern-ment departments, with different levels of governments and experts, including specialists in infectious diseases from within and outside Health Canada.
[6]The applicant, a senior scientist in VDD, was not a member of ERT. His division was not responsible for stockpiling of any drugs. In the fall of 2001, until October 12, he was unaware of the existence or role of ERT or of any advice it may have provided for the Minister. He was not a spokesperson for Health Canada and his own evidence is that he did not at any of the times in question purport to act as such.
[7]Nevertheless, Dr. Chopra was perceived by his supervisor to have publicly criticized a decision made by Health Canada to stockpile drugs, including ciprofloxacin. He had done so on the basis of his knowledge as a microbiologist and his knowledge and experience in dealing with anthrax. He claims to have done so because in his view public apprehension about the possible terrorist use of anthrax, for example, was unjustified, since he believed there was no real danger of the contagious spread of the disease. Any limited appearance of it could be dealt with by ordinary supplies of antibiotics at hand, in his view. Moreover, he believed a particular antibiotic, ciprofloxacin, was the least useful of antibiotics for anthrax or smallpox and that its possible use to protect children presented unwarranted dangers.
[8]Dr. Chopra's comments were reported in print and broadcast media on four occasions, in each of which he was identified as a Health Canada scientist. Those occasions were as follows:
(i) On October 12, 2001, the Winnipeg Free Press carried a story headed "Panic over anthrax attacks unfounded, experts advise". This story included comments of three persons, described as experts, all suggesting that fear of use of anthrax as a weapon in bioterrorism "is not well founded". The first of the persons included in the story was the applicant, Dr. Chopra, described in the article as a microbiologist with Health Canada's Bureau of Veterinary Drugs. He is quoted as saying: "This has been going on since the days of Hitler, where they were looking at the possibilities of creating biological weapons. So far no biological weapon has worked."
The story then continued that Chopra was highly critical of Health Canada's decision to stockpile antibiotics against a possible terrorist attack, calling it a public relations gesture. He is quoted as saying, "Stockpiling of antibiotics only looks good for the Minister of Health . . . to say `We are prepared'. I think it's just a media hype and unnecessarily scaring people, saying `Oh something is coming'. Nothing is coming."
(ii) On October 18, 2001 a CJOH television programme included Dr. Chopra, identified as a Health Canada microbiologist, who responded to questions about the Government's stockpiling of antibiotics, saying: "Any organism can be used [sic] a crime, but from the terrorist point of view, what you want is [sic] organism that will infect and then spread by itself. It should be contagious. Anthrax is not contagious. So it is not going to happen. You don't need to stockpile antibiotics. You don't need to take them. You don't need to take them for prevention. Just keep calm." When asked why Government would be stockpiling these, he said, "Well, it puzzles me".
(iii) On October 26, 2001, the Montréal Gazette reported that the applicant, identified as a Health Canada scientist, who was scheduled to participate in a symposium in Montréal on the previous day did not do so, after he had, as the story reported, "received a threatening letter from senior Health Canada manager Diane Kirkpatrick suggesting his participation in the symposium should be vetted in the department". The article was headed "Crisis? What crisis? Government is using baseless anthrax scare to justify attack on liberties." The applicant was quoted in the article as saying: "The department feels encouraged by the war, now it is time to hit at people they think are vulnerable". Dr. Chopra is reported to have cancelled his appearance at the McGill symposium, and saying: " I'm concerned for my job, I'm fearful for what they might do. This is putting me into a very dangerous situation".
That article included a report of Dr. Chopra's comments about the "anthrax scare" and his view as a scientist knowledgeable about anthrax that it did not present a threat for bioterrorism use.
(iv) On November 6, 2001 the Calgary Herald printed an article which identified the applicant as a Health Canada scientist. In reference to reports of criticism of the Minister of Health in the House of Commons for "alleged inadequate preparation" for apprehended terrorist attack, and some question "about whether the vaccine is needed", the applicant is quoted as saying, "There's no need for it".
[9]On each of these occasions Dr. Chopra had been sought by a reporter. He did not initiate any of the contacts with reporters. His evidence is that on each occasion he sought to convey that he was speaking as a scientist, a microbiologist, but not a spokesperson for his Department.
[10]Following publication of the article in the Winnipeg Free Press on October 12, 2001, that same day the applicant's supervisor, Diane Kirkpatrick, Director General of the VDD, convened a "fact finding meeting" with Dr. Chopra. She did so again on October 23, 2001, after the television report and just before his scheduled appearance at a McGill symposium. Then on November 16, 2001, by e-mail, she raised a number of questions with the applicant, to which he subsequently replied by e-mail. In those meetings and by his answers to the questions sent by e-mail, Dr. Chopra affirmed that when one speaks to the media one does not control how a story gets reported, but he acknowledged that the quotations attributed to him were accurate in the news media stories of interest here.
[11]He was advised at the meeting on October 12, of the existence of the ERT and its dealing with issues concerning stockpiling of drugs. At both fact finding meetings he was advised that he was not a departmental spokesperson. About a year before those meetings the Department had issued a policy directive, warning against public comments on departmental matters except by designated spokespersons.
[12]Neither his supervisor nor the adjudicator appear to have appreciated the apparent inappropriateness of the supervisor's instruction to Dr. Chopra, in advance of his presentation at the McGill symposium scheduled for October 25, from which he withdrew, that in view of "the need to ensure the accuracy of your presentation" it should be checked with a certain person at Health Canada. That seems to me a most unusual direction to a senior scientist who was invited to participate in an external public discussion of scientific matters, not including possible bioterrorism, in which there is no suggestion his participation was as a spokesperson for Health Canada.
[13]The apprehension about the use of anthrax in bioterrorism and the stockpiling of antibiotics to deal with it was a matter of public discussion and some debate in the media involving others as well as the applicant. It was not a matter of further communication between Dr. Chopra and the Director General of VDD until March 25, 2002, more than four months after the last of the incidents of concern. On that day the Director General wrote to him, reviewing the circumstances of his four reported interviews with the media, of the two fact finding meetings in October and of the exchange of correspondence by e-mails in November. The letter then set out the Director General's belief that Dr. Chopra's conduct was wrong , stressing the duty of loyalty owed by public servants to their employer. The letter concluded, stating its purpose thus:
. . . this is to formally indicate that I find your conduct unacceptable. This criticism of a Government decision at a time of international crisis lacked objectivity and your action was inconsistent with your responsibility as an employee in the public service. It erodes the necessary employer/ employee relationship and is in disregard of your duty of loyalty.
This letter is to advise you that you will be suspended without pay for a period of 5 working days. This suspension is to be served from Thursday, April 4, 2002 to Wednesday April 10, 2002 inclusive.
The adjudicator's decision
[14]The discipline imposed by his supervisor, for speaking to the media as he had done, was grieved by Dr. Chopra and that grievance was ultimately heard by the adjudicator acting under the Act. The adjudicator's decision is the subject of this application for judicial review.
[15]In reasons for decision, the adjudicator said in part, at paragraphs 80-81:
This case once again raises the ever-important but difficult issue surrounding the balance that must exist between the constitutionally protected right of free expression and the duty of a federal public servant to ensure that the public service to which he/she owes a duty of loyalty is impartial and effective.
It has long been recognized that federal employees must be careful and show restraint in their public criticism of government policy. In our society, the right of free speech for public servants carries with it some obligations.
He then made reference to the Supreme Court of Canada decision in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, to Forgie v. Treasury Board (Immigration Appeal Board), [1986] C.P.S.S.R.B. No. 310 (QL), to Haydon (No. 1) and to Grahn v. Canada (Treasury Board) (1987), 91 N.R. 394 (F.C.A.). I note that among those cases only the decision in Haydon (No. 1) deals with the right to free expression under paragraph 2(b) of the Charter. The Supreme Court decision in Fraser is specifically determined to be made without reference to the Charter, since the events raising that case antedated enactment of the Charter. Grahn is relied upon by the adjudicator for the proposition that the truth or sustainability of critical public comment by a public servant should be supported by evidence, but in my opinion the decision in Grahn, and the stated principle based upon it, has relevance only where the public comments in issue accuse government or its representatives of illegalities (see Hugessen J.A. in Grahn, at pages 394-395). In those circumstances, the exception to the duty of loyalty requires some evidence of illegalities alleged, but public comments about other matters may not require such evidence, e.g. expressions of opinion (see: Chopra v. Treasury Board (Health Canada) (2001), 96 L.A.C. (4th) 367 (P.S.S.R.B.) or comments on issues of public health concerns where efforts at internal department resolution were unsuccessful (see, Haydon (No. 1)).
[16]The adjudicator's decision continued, inter alia; at paragraphs 93-94, 96-98, 101-107:
The grievor's continued and at times aggressive comments in opposition to his employer's policies were unacceptable. Mr. Chopra contends that he was merely trying to calm down media hype in a period of international crisis. He argues that his comments dealt with public health and safety issues and are protected by the Charter.
Although one can readily accept that the overuse of antibiotics can lead to their ineffectiveness and that they may be contra-indicated for small children, the fact remains that, in cases of emergency, a government might be called upon to administer massive quantities of antibiotics and vaccines.
. . .
Mr. Chopra's categorical assertions that the stockpiling of antibiotics or vaccines was unnecessary is not supported by evidence. His attack on the motives of the Minister of Health, regardless of his explanation at the hearing that he meant no harm, was completely unwarranted. The grievor admitted that he had no specific knowledge to justify this statement, which clearly impugned the integrity and motives of the Minister in charge of his department.
Mr. Chopra's comments . . . show that the grievor was more interested in criticizing and attacking his department than in calming things down. Comments such as "The department feels encouraged by the war" and "Now is the time to hit at people they think are vulnerable" are theatrical in tone, derogatory and unproven in substance.
Given Mr. Chopra's testimony, I find that the comments attributed to him reflect closely the discussions he chose to have with various journalists. Furthermore, Mr. Chopra's repeated contacts with the media lead me to conclude that he was not concerned that his views and comments on previous occasions had been misinterpreted.
. . .
The grievor can also be faulted in this case for not using internal review and discussion mechanisms. I simply cannot accept Mr. Chopra's feeble excuse that he did not know whom to talk to. He knew or should have known that he could raise the issue with his immediate supervisor and obtain from her the names of other contacts within the department. That is exactly what Ms. Kirkpatrick did in Exhibit E-6 when she suggested to the grievor "the need to ensure the accuracy of your presentation and to this end you can contact . . . in PMRA."
Mr. Chopra has not shown that the situation post-9/11 required bypassing normal internal discussion venues. The merits and disadvantages of stockpiling antibiotics and vaccines were being discussed publicly during the same time period by other scientists not employed by HC. There was no criminal activity being committed, nor was there immediate danger to the health or safety of Canadians which might have justified some of the comments made by Mr. Chopra.
I should add that even if Mr. Chopra had unsuccessfully attempted to discuss and resolve his concerns internally, some of the comments, in particular those dealing with the Minister's motives as well as the comments alleging a gag order, would remain inappropriate.
There is in this case evidence of impairment on both levels referred to by the SCC in Fraser (supra). First, Ms. Kirkpatrick testified that the grievor's public criticism of the Department and Minister had detrimentally affected her relationship with the grievor. That fact was confirmed by Mr. Chopra when he testified that his relationship with his supervisor was tense. The tension between Ms. Kirkpatrick and Mr. Chopra, resulting from these incidents, is evident from a reading of the transcripts of the two fact-finding meetings (Exhibits E-9 and E-11). There is no doubt that this tension would create an impediment to the grievor's ability to perform his work.
Second, I conclude that Mr. Chopra's repeated comments, which went beyond the realm of acceptable scientific debate, impaired his usefulness as a public servant. His attacks on the Minister, his department and his supervisor were repeated and derogatory. There is no doubt in my mind that Mr. Chopra's conduct in this case seriously impaired his usefulness as a public servant.
Counsel for the grievor suggested that I reduce the penalty imposed to a reprimand if I were to conclude that discipline was warranted. Given what precedes, I believe that the 5-day suspension imposed on Mr. Chopra was well within the parameters of appropriate discipline.
For all of these reasons, the grievance is denied.
The issues
[17]The basic issue is whether by his decision the adjudicator erred in finding, in effect, that Dr. Chopra's duty of loyalty was breached in a manner that supported the imposition of the five-day suspension from employment here imposed as a disciplinary measure. In reviewing that decision other subordinate issues are raised by the applicant, including:
1. the standard of review;
2. alleged errors of law by the adjudicator, including alleged failure to observe procedural fairness;
3. alleged errors of fact by the adjudicator.
[18]Before dealing with the issues it is important, in my opinion, to clarify the aspects of Dr. Chopra's comments that give rise to the discipline imposed and to his grievance. It is useful to recall that in Fraser, Dickson C.J. bases his reasoning (at page 467) on the importance of "free and robust public discussion of public issues", including discussion by public servants, subject only to the duty of loyalty aptly applied. As a person in Canada, even though he was a public servant, Dr. Chopra enjoyed the right to freedom of opinion and expression pursuant to paragraph 2(b) of the Charter. His public comments of opinion on a matter of public debate, even about his own Department's adopted policy and program, is generally exempt from any duty to remain silent, unless he were senior enough to share active responsibility for departmental policy decisions, or his comments give rise to concern about his impartiality or effectiveness in performance of his public service. Dr. Chopra was not responsible for public policy decisions of the nature here subjected to debate. Moreover, concern here cannot be simply that he expressed personal opinions about the merits of stockpiling antibiotics as he did, or that those opinions were not supported by evidence as statements of fact might be expected to be.
[19]Both his supervisor, representing the employer, and the adjudicator referred to Dr. Chopra's failure to produce evidence to support his comments, presumably to establish that stockpiling was unnecessary or detrimental to health. He in turn stated that no one from the Department contradicted his comments about the nature of anthrax or smallpox and no one had specifically told him not to comment as he did. The tenor of his comments, based on his knowledge of microbiology, was the expression of opinions in relation to policy, not of scientific or legal conclusions based on facts. About those opinions, so far as they concerned policy, there was public debate among those interested, including Dr. Chopra.
[20]If his comments had been limited to personal opinion about adopted policy or program, it would be reasonably comparable to the circumstances in Chopra v. Treasury Board (Health Canada) (2001), 96 L.A.C. (4th) 367. There, an arbitrator upheld Dr. Chopra's grievance against discipline imposed upon him for opinion comments at a public forum on progress by Health Canada in dealing with human rights practices of the Department, a matter of public concern upon which opinions expressed by him were found not to be in breach of his duty of loyalty.
[21]What brings his comments into perceived breach of his duty of loyalty as a public servant, in this case, in my opinion, was his public attribution of questionable motives, unrelated to public health purposes, to the Minister of the day and to his Department. Accepting there is a general right to freely express opinions on matters of public policy even on matters beyond his normal responsibilities, a public servant in the position of Dr. Chopra still owes a duty of loyalty to his employer that precludes public comments adverse to or in favour of perceived motives or values of policy initiatives of government, unless the comments clearly fall within the exceptions established by Fraser.
[22]I turn now to the issues raised by the parties.
The standard of review
[23]There is no dispute that for issues of law, including Charter issues if those were at stake here, the appropriate standard of review is correctness. For matters within the traditional jurisdiction of an adjudicator, i.e., matters of fact or matters of acceptable custom or conduct in an employment situation, or matters of interpretation or application of a collective agreement, the appropriate standard is patent unreasonableness.
[24]Here the ultimate issues are interrelated, whether Dr. Chopra's conduct by his public statements breached his duty of loyalty as a public servant and if so did that warrant the discipline imposed. Those issues are of mixed law and fact for which the standard of review is reasonableness. In the application of that standard considerable deference is warranted for the assessment by the experienced labour adjudicator (see e.g. Dickson C.J. for the Supreme Court in Fraser, at page 473).
Alleged errors of law
[25]For Dr. Chopra it is urged that discipline imposed in relation to the free expression of opinion is invalid where it is not established to be required by clear and cogent evidence of a substantial pressing concern which requires minimal impairment of the right. As earlier noted in accord with the decisions of Madam Justice Tremblay-Lamer in Haydon (No. 1) and of Mr. Justice Martineau in Haydon (No. 2), the limit imposed by the proper application of the duty of loyalty to a public servant is an acceptable limitation under section 1 of the Charter of the freedom of opinion and expression. That rationale of the basic law here applicable, I accept.
[26]For the applicant it is urged that the decision in Fraser did not preclude further exceptions than those there suggested to the duty of loyalty, and moreover, in Haydon (No. 1), Madam Justice Tremblay-Lamer had articulated an additional exception, that is where the comment in issue concerns a matter of legitimate public interest requiring public debate. The adjudicator erred, it is said by not considering Dr. Chopra's comments within that exception.
[27]I am not persuaded that my colleague did recognize a further exception. Her use of generic words, "matters of legitimate public concern", in my opinion, were intended only as a general description underlying the exceptions already established by Fraser. Indeed, in Haydon (No. 1) the decision of an Associate Deputy Minister imposing discipline in relation to public comments of Dr. Chopra and another, was found to be unreasonable, inter alia, in failing to recognize that the public comments were within the first exception set out by Fraser, i.e., public criticism in relation to safety and efficacy of the drug approval process of Health Canada, a matter of public health and safety.
[28]A second alleged error in law by the adjudicator is said to be that he misstated the "internal recourse" principle in the Haydon (No. 1) decision by describing it as confirming [at paragraph 90] "the principle that public servants who wish to criticize government policies publicly should as a general rule make reasonable attempts to resolve the matter internally". I agree that may overstate the principle as described in Haydon (No. 1) where Madam Justice Tremblay-Lamer noted (at paragraph 112), "I believe that public criticism will be justified where a reasonable attempt to resolve the matter internally would have been unsuccessful." In that case, the public comments in issue were found to be related to public health and safety, and the public servants concerned had endeavoured on several occasions to have their concerns addressed internally without success.
[29]In this case, the adjudicator found no effort made by Dr. Chopra to resolve his professed concerns internally, but even if he had done so unsuccessfully, his comments [at paragraph 103], "particularly those dealing with the Minister's motives . . . would remain inappro-priate." Thus, the adjudicator indicates his reliance on the nature of the comments, not on Dr. Chopra's failing to clarify his concerns internally, as the principle focus of his attention. I am not persuaded that his ultimate conclusion was dependent on Dr. Chopra not clarifying his concerns internally.
[30]A third error in law alleged is the adjudicator's statement, based on Grahn, that generally the truth or sustainability of critical public comments made by a public servant should be supported by evidence. I agree that Grahn should be read in light of its facts, i.e. there the public comments of concern described alleged illegal activities of government for which there was no supporting evidence. I agree also that the adjudicator's decision does reflect a concern that the public servant whose statements are in issue should be required to produce evidence in support. That could hardly have significance in any case where the comments are expression of opinion, not subject to proof by evidence but conclusions reached by persuasion and reasoning on which views may differ.
[31]That said, the adjudicator's decision does not stand or fall on his view of the law concerning the necessity for prior internal resolution before public comments are made.
[32]A fourth error in law alleged by the adjudicator concerns procedures that are said to result in a lack of procedural fairness. One was the adjudicator's reliance on a newspaper article to make a point in contradiction to Dr. Chopra's opinion, an article that was essentially hearsay and was admitted at the hearing expressly on the basis that it could not be relied upon for the truth of its contents. I am not persuaded that the news article was relied on for the truth of its content rather than simply as an indication of another opinion contrary to that of Dr. Chopra. In any event it was not a basis of the adjudicator's ultimate finding.
[33]A further allegation of a lack of procedural fairness concerns the adjudicator's conclusion about the credibility of Dr. Chopra in his testimony about whether a reporter had learned from him about a letter from Dr. Chopra's supervisor which caused him to withdraw from participation in a symposium at McGill in November 2001. Dr. Chopra had not been cross-examined on this aspect at the hearing before the adjudicator and had no notice that this would be made an issue in the decision. The result is unfortunate, but an adjudicator is not bound to accept the unquestioned testimony of any witness. Moreover, the issue is not a basic one on which the adjudicator's decision rests for in my opinion, even if the evidence of Dr. Chopra had been accepted and his credibility on that issue were not questioned, the ultimate issues for the adjudicator would have been determined as they were.
[34]In summary, I agree the adjudicator erred in stating the law, concerning the significance of failure to seek internal resolution of differences, the need to provide evidence of truth of all public comments, and in relation to aspects of procedural fairness. It is unusual to find such errors but also to conclude, as I do here, that the ultimate decisions in question were not dependent on these errors. None of the errors, in my opinion, are crucial to the determination that the nature of the comments of Dr. Chopra, questioning the motives of the Minister and the Department, raised questions of his impartiality and effectiveness as a public servant.
Alleged errors of fact
[35]The applicant alleges errors of fact by the adjudicator in his findings, both by inferences without direct evidence other than Dr. Chopra's supervisor's opinion, that his public statements had impaired his ability to perform his job. In a wider sense it had impaired his suitability as a member of the public service, for whom perceived impartiality and effectiveness are essential characteristics.
[36]In Fraser, Chief Justice Dickson, for the Supreme Court, commented 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.
[37]In that case the extreme conduct of the public servant in question, who was head of a business audit division of a district taxation office, was found to support a reasonable inference that his performance of his job was impaired. The lack of direct evidence of impairment did not preclude determination on the basis of inferences in Fraser that job performance and the essential impartiality of the public servant were impaired by his conduct. That conduct was described by Dickson C.J. as "criticisms (two major government policies and the character and integrity of the Prime Minister and Government), the context of those criticisms (prolonged, virtually full time, in public meetings, on radio, on television, in newspapers, local, national, international), and the form of the criticisms (initially restrained, but increasingly vitriolic and vituperative)". (Fraser, at page 474).
[38]The circumstances of this case are not comparable to those in Fraser. One major difference is the "public climate" of the day, here widespread apprehension about possible terrorist activities in North America following "9/11", a factor unknown in 1982 when Mr. Fraser made public attacks on Government policies. That factor is a matter fully described by the adjudicator in this case. Of course, another difference is that Dr. Chopra's comments were less "vituperative and vitriolic" than those of Mr. Fraser.
[39]As for the matter of possible impairment to perform his job, Dr. Chopra maintains that he was not told of any perceived impairment, and there is no direct evidence of ways in which his job performance was affected. Nevertheless, there was some evidence from which the adjudicator inferred impairment. That evidence was the testimony of his supervisor that Dr. Chopra's public criticisms of the Minister and of the Department affected her relationship with him, and the transcripts of two fact finding meetings were found to demonstrate the tension between them. The adjudicator concluded [at paragraph 104] "There is no doubt that this tension would create an impediment to the grievor's ability to perform his work."
[40]The second aspect of impairment is dealt with by the adjudicator drawing an inference, from the facts, as he found them, as follows, at paragraph 105:
Second, I conclude that Mr. Chopra's repeated comments, which went beyond the realm of acceptable scientific debate, impaired his usefulness as a public servant. His attacks on the Minister, his department and his supervisor were repeated and derogatory. There is no doubt in my mind that Mr. Chopra's conduct in this case seriously impaired his usefulness as a public servant.
[41]These inferences of the impairment to performance of his particular job, and to his perceived effective performance as an impartial public servant, are inferences of fact. There is some evidence to support the first inference, and for the second the determination of a skilled labour adjudicator (here the Chairperson of the P.S.S.R.B.) warrants deference by this Court in accord with the decision of Dickson C.J. in Fraser, at page 473.
[42]In my opinion, neither inference of fact can be said to be patently unreasonable in the circumstance of this case and there is no basis for the Court to ignore the deference owed to the adjudicator's findings of fact.
Conclusion
[43]I turn to the ultimate issues. As I read the decision of the adjudicator, it is clear that the nature of Dr. Chopra's public comments was a matter of prime concern. This is set out particularly at paragraphs 96-98 of the decision. After referring to the applicant's "continued and at times aggressive comments in opposition to his employer's policies" which he found unacceptable, and finding that the comments attributed to Dr. Chopra by the media reports accurately reflected the discussions he had with journalists, the adjudicator commented, in part, at paragraphs 96-97:
His attack on the motives of the Minister of Health, regardless of his explanation at the hearing that he meant no harm, was completely unwarranted. . . . [it] clearly impugned the integrity and motives of the Minister in charge of his department.
Mr. Chopra's comments . . . show that the grievor was more interested in criticizing and attacking his department than in calming things down. Comments such as "The department feels encouraged by the war" and "Now is the time to hit at people they think are vulnerable" are theatrical in tone, derogatory and unproven in substance.
[44]The assessment of the adjudicator is not unreasonable, that in the circumstances of this case Dr. Chopra had breached the duty of loyalty owed by him as a public servant, by his conduct in expressing his opinions and attributing inappropriate motives to the Minister and to his Department. That conduct, the adjudicator found, impaired his impartiality and effectiveness in discharging his duties and thus was a breach of his duty of loyalty. In the circumstances there is no basis for the Court to intervene to set aside the ultimate assessment of the adjudicator.
[45]No persuasive argument was made to support variation of the penalty imposed on Dr. Chopra, a five-day suspension from work without pay. There is no basis for the Court to vary the penalty, upheld by the adjudicator as "well within the parameters of appropriate discipline."
[46]An order goes dismissing this application. While both parties requested costs, in my opinion, the application raised an issue of continuing concern, the lawful limits on a public servant's freedom of opinion and expression guaranteed by the Charter, which limits arise from the duty of loyalty to the employer. In my view, this case assists in refining those limits and each party should bear its own costs.