[1993] 3 F.C 557
T-1095-93
Don Puccini (Applicant)
v.
Dan Fenety, Director General, Corporate Administrative Services, Agriculture Canada (Respondent)
Indexed as: Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada) (T.D.)
Trial Division, Gibson J.—Ottawa, June 1 and 21, 1993.
Public Service — Workplace harassment complaint against applicant — Applicant reassigned and relocated during investigation — Interim relief sought pending final disposition of application for judicial review: to be returned to normal workplace; to prohibit further steps in matter under judicial review; to obtain material relating to matter — Consequences of laying harassment complaint — Circumstances dictating separation of complainant, supervisor — No irreparable harm in not now returning applicant to former workplace as harm already done — As to balance of convenience, interests of complainant, public to be considered — Granting stay would have chilling effect on harassment complaints throughout Public Service.
Judicial review — Equitable remedies — Injunctions — Public Service boss reassigned whilst subordinate’s harassment complaint under investigation — Seeking injunction restraining process pending judicial review — Also seeking return to usual workplace, release of information regarding complaint — Counsel in agreement relevant test that in Manitoba (Attorney General) v. Metropolitan Stores Ltd. — Judge, dubitante, forming reasons on that basis — Serious question to be tried as harassment complaint serious matter, applicant alleging process here used, Treasury Board policy not respecting duty to act fairly — Failure to now reinstate applicant not causing irreparable harm as any harm already done — Public interest, convenience of complainant to be considered in assessing balance of convenience.
Federal Court jurisdiction — Trial Division — Respondent Director General federal board, commission or tribunal within meaning of Federal Court Act, s. 2 — Matter subject to judicial review though more in nature of continuing process than specific decision or order.
A formal complaint of workplace harassment (abuse of authority) was filed by an employee against the applicant, Director of Emergency Management, Agriculture Canada. Since the applicant was the complainant’s supervisor, the applicant’s superior applied the Treasury Board policy of physically and hierarchically removing the two parties from one another by reassigning and relocating the applicant for the period of the investigation.
The applicant initiated judicial review proceedings attacking parts of the policy concerning workplace harassment. This was a motion for an interim order under section 18.2 of the Federal Court Act, pending the final disposition of the application for judicial review, seeking: (1) to return the applicant to his normal workplace to carry out his usual duties; (2) to prohibit the taking of any further steps in respect of the matter under judicial reiview; (3) to provide to the applicant certain material detailed in the originating notice of motion and relating to the matter under judicial review.
Held, the motion should be dismissed.
The Federal Court had jurisdiction to hear this matter. The respondent was a federal board, commission or other tribunal within the meaning of section 2 of the Federal Court Act. Even though the matter sought to be reviewed was more in the nature of a continuing process, during which a number of decisions or orders have already been taken or made, than of a specific decision or order, for the purposes of the preliminary motion, subsection 18.1(2) of the Act and Rule 1602(2)(f) might be interpreted broadly to encompass the present situation.
It was agreed that the tripartite test (serious issue, irreparable harm, balance of convenience) enunciated in Manitoba (Attorney General) v. Metropolitan Stores, [1987] 1 S.C.R. 110, was applicable to each of the three reliefs sought. The laying of an harassment complaint is a serious matter as it exposes the complainant to further abuse and the accused to loss of reputation. The allegation that both the particular process applied herein and the policy on which it was based failed to respect the duty to act fairly raises a serious issue to be tried. However, the failure to return the applicant at this time to his normal workplace and duties will not result in irreparable harm not compensable in damages. The harm, whatever it may be, has already been done.
The question of balance of convenience, with respect to the application for a stay, cannot be assessed only on the basis of the convenience of the parties to this proceeding. When the convenience of the complainant and the broader public interest were taken into account, the balance of convenience did not favour the applicant. Granting a stay would have a chilling effect upon all of the harassment investigations currently under way throughout the Public Service.
The applicant’s request for certain material was not a request pursuant to Rule 1612, so the material tendered by counsel for the respondent could not be accepted. Since the materials requested on behalf of the applicant appear to be materials obtained or compiled specifically for the purpose of this harassment complaint, they fall squarely within the terms of paragraph 8(2)(a) of the Privacy Act and should, if they are to be used by the respondent in further consideration of the harassment complaint, be released to both parties to that complaint. If the material is not shared, and is used, as it likely already has been in the investigation process, that will be a matter that will undoubtedly come before this Court later in these proceedings. Production of the material requested should not be ordered because it was not clear that the applicant would suffer irreparable harm or that the balance of convenience favours it, bearing in mind the convenience of those who provided the information, possibly without warning that it might be shared. If the material has been or will be used, surely it must be shared. If it has not been and will not be used except to the extent that it has been shared, no breach of fairness could be foreseen. If it has been used and full sharing is not provided, the respondent must be prepared to defend the fairness of the process.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by S.C. 1990, c. 8, s. 1), 18.1 (as enacted idem, s. 5), 18.2 (as enacted idem).
Federal Court Rules, C.R.C., c. 663, RR. 496(1), 1602(2)(f) (as enacted by SOR/92-43, s. 19), 1612 (as enacted idem).
Financial Administration Act, R.S.C., 1985, c. F-11.
Privacy Act, R.S.C., 1985, c. P-21, s. 8(2)(a).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35.
CASES JUDICIALLY CONSIDERED
APPLIED:
Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341.
MOTION for interim relief pending final disposition of an application for judicial review, in the context of a complaint of workplace harassment, essentially to nullify the applicant’s temporary reassignment and relocation pursuant to the Treasury Board’s harassment in the workplace policy. Motion dismissed.
COUNSEL:
Eric R. Williams for applicant.
Alain Préfontaine for respondent.
SOLICITORS:
Williams, McEnery & Davis, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Gibson J.:
RELIEF SOUGHT
This is a motion on behalf of the applicant Don Puccini for an interim order under section 18.2 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] pending final disposition of his application for judicial review. The interim relief sought is an order directing the respondent Dan Fenety: first, to return the applicant to his normal workplace at Halldon House, 2255 Carling Avenue in the city of Ottawa so that he might carry out his normal duties and obligations; second, other than as required to give effect to the interim order sought, to refrain from taking any further steps in respect of the matter under judicial review; and third, to immediately provide to the applicant certain material detailed in the originating notice of motion and relating to the matter under judicial review.
THE FACTS
The applicant is the Director of Emergency Management for the Department of Agriculture in the Government of Canada (the Department). As such, he is classified at the first level of the Executive category in the Public Service of Canada. The respondent Fenety is his immediate supervisor within the Corporate Administration Services Branch of the Department. The Emergency Management Division (EMD) is a unit of nine or ten persons in the Corporate Administration Services Branch of the Department located at the address indicated above which is some distance removed from the main headquarters of the Department in the Sir John Carling Building.
By letter dated January 4, 1993, Marlene O’Neil, a permanent employee in the Public Service of Canada, assigned to EMD and at that time reporting to an individual who in turn reported directly to the applicant, wrote to the respondent. Her letter constituted a formal complaint of workplace harassment in the nature of abuse of authority allegedly committed against her by the applicant. In the letter, Ms. O’Neil requested, among other things, an investigation of her complaint, that she remain with EMD throughout the investigation, that the harassment cease immediately and that the applicant be instructed not to seek any verbal communication with her during the course of the investigation, either in the workplace or at her home.
The Department has in place an harassment in the workplace policy dated November 29, 1989. Since that time, the Treasury Board Secretariat, acting on behalf of the Treasury Board in the exercise of its responsibilities for personnel management in the Public Service of Canada, issued an harassment in the workplace policy, apparently dated September 1, 1991. Presumably in response, the Department subsequently published a new draft harassment in the workplace policy but there is no evidence before me that, at any time relevant to this application, that draft policy was formally adopted. It was common ground at the hearing before me that the Treasury Board policy of September 1, 1991 governed the Department’s response to Ms. O’Neil’s complaint. The opening statement of that policy reads as follows:
Policy Objective
To provide a work environment that is supportive of productivity as well as of the personal goals, dignity and self-esteem of every employee.
Policy Statement
Every employee will be treated fairly in the workplace, in an environment free of harassment. Harassment of another employee constitutes a disciplinary infraction subject to disciplinary penalties up to and including discharge.
Application
This policy applies to all departments and other portions of the Public Service listed in Part I of Schedule I of the Public Service Staff Relations Act.
The Department is, indirectly, listed in Part I of that Schedule [Public Service Staff Relations Act, R.S.C., 1985, c. P-35].
The procedures provided upon receipt of a complaint by a person designated to investigate a complaint, and it was not disputed before me that the respondent is such a person for the purposes of this complaint, require that person to:
— immediately inform the person against whom a complaint has been lodged that a complaint has been filed;
— inform all parties involved of their rights and responsibilities;
— interview the parties concerned and witnesses;
— collect evidence;
— prepare a report; and
— inform the parties in writing of the decision rendered and the reasons justifying it without undue delay.
The respondent acted on January 11, 1993 to inform the applicant. By letter under that date he advised the applicant that an harassment complaint had been brought against him by Ms. O’Neil, that a private company or individual experienced in handling harassment investigations would be retained to carry out some of the stages outlined in the procedures and that he would be given full opportunity to respond to the allegations made against him. At the same time the applicant was advised that he was being reassigned and provided with working space in the Department headquarters’ main location. The letter went on to advise that the reassignment and relocation “should in no way be construed as prejudging the outcome of the investigation.” The letter further advised that another individual had been asked to act in the applicant’s position of Director, EMD during the applicant’s absence from EMD. Finally, the letter recommended that the applicant not contact Marlene O’Neil during the course of the investigation.
In reassigning and relocating the applicant, the respondent was apparently acting in response to the following paragraphs of the policy which appear under the headings “Rights and Responsibilities” and “Managers”:
If it is deemed by the employer to be in the best interest of all parties, when a person against whom a complaint has been lodged and an alleged harassee share a subordinate and supervisor role, they should be physically and hierarchically removed from one another, for the period of investigations.
When they do not share a supervisor and subordinate role, they should be physically removed from one another, for the period of investigations.
Also under the heading “Rights and Responsibilities”, the policy provides that both the “alleged victim”, in this case Ms. O’Neil, and the person against whom a complaint has been lodged, in this case the applicant, have a right “to be kept informed throughout the process, subject to both the Access to Information Act and the Privacy Act.”
Apparently the investigation contemplated by the policy and the respondent’s letter of January 11, 1993, was carried out by one Ann Carmichael, alone or in conjunction with one other person; that is not clear from the material before me. Also apparently, the report of the investigation was delivered to the respondent sometime around the end of March. A version of the report was provided to the applicant on March 31, 1993, and another version was provided to him on April 23, 1993. According to what appears to be the original numbering system for the report, it runs to eighty-one (81) pages. The material delivered to the applicant on April 23, 1993, runs to eighty-six (86) pages including a brief memorandum dated April 23, 1993, a cover page and a three page “Statement of Allegations” which apparently is an Appendix to the report, the pages of which are not numbered in the original version. A table of contents which is either page 2 or page 3, depending upon the numbering system used, indicates that the report consists of an introduction, information regarding eleven “key witnesses” who do not include the complainant or the applicant, a two-page summary of overall conclusions, a more extensive summary of issues, analyses and conclusions, a detailed report on findings, analyses and conclusions and finally the brief Appendix referred to above. As pleaded on behalf of the applicant, the report goes well beyond a simple reporting of information provided by those interviewed. Also, as pleaded on behalf of the applicant, the version of the report filed, as delivered to the applicant on April 23, 1993 is extensively expurgated presumably pursuant to the Privacy Act [R.S.C., 1985, c. P-21].
Apparently the remaining stages in the process, as envisaged by the respondent, involve an opportunity for the complainant and the applicant to make representations to him orally and/or in writing. Also presumably, following those representations, the respondent will consider the report in the light of those representations and reach his conclusion as to the disposition of the complaint.
The originating notice of motion filed on behalf of the applicant in this matter requests the following relief:
1. An order quashing portions of the Agriculture Canada policy concerning workplace harassment and in particular those sections dealing with the process for the disposition of complaints and the rights of a person who is subject to a complaint.
2. Specifically, the applicant refers to provisions which:
a) provide for immediate disciplinary action by the removal of the “accused” from the workplace;
b) provisions which provide for the appointment of an outside “investigator”, allowing an investigator to provide opinions, conclusions and findings of fact rather than acting in a mere fact finding capacity;
c) any provision which allows a manager or supervisor to make a final decision using, in some unknown method the “investigators report” and perhaps carrying out some additional unknown investigation and coming to a conclusion of guilt or non-guilt;
d) any provision which provides for a manager or supervisor to make such decision when, given the nature of the process an independent person or tribunal ought to make such decision and not a “manager” or “supervisor” who are often affected by bias and lack of training dealing with matters of credibility and the interpretation of policy meaning.
3. An Order quashing any provision which does not give the right either to the complainant or the “accused” if they so desire to have a hearing before an independent tribunal or person with the right to call witnesses, cross-examine adverse witnesses and to make argument with or without counsel.
4. An Order quashing any provision which has the effect of not allowing the “accused” to know the exact extent and nature of the case against him and her and to respond appropriately to such case.
5. An Order quashing the investigative report of Ann Carmichael and expunging such report from the records of Agriculture Canada, the file of Don Puccini and any filing under the Access to Information and Privacy Act.
6. Further, an Order directing that a hearing take place of the complaint of Marlene O’Neil against Don Puccini before an independent tribunal or person and that Puccini be permitted to appear either alone or by Counsel to cross-examine any witnesses that may give evidence concerning the complaints against him and to call any witnesses on his own behalf together with concurrent right of O’Neil to cross-examine any witnesses he may call.
7. Prior to such hearing, an Order that any witness statements gathered, any noted documentation or other material being relied upon by the complainant be produced in advance of the hearing for review by Puccini.
8. Consistent with these Orders, an Order directing Dan Fenety to cease and desist from making a decision or taking any further steps in respect of the complaint of Marlene O’Neil.
9. An Order directing the interim orders in the enclosed Notice of Motion.
10. The applicant’s costs of this application on a solicitor and his own client scale.
11. Such further and other relief as this Court may allow or deem necessary.
The interim motion was argued before me in Ottawa on June 1, 1993. The next day, the respondent met with a number of persons employed in the EMD. Shortly thereafter, counsel for the applicant contacted the Registry of the Court to request leave pursuant to Rule 496(1) of the Federal Court Rules, C.R.C., c. 663 to reopen the hearing to provide affidavit evidence of what transpired at the meeting and of its relevance to the matter before the Court, particularly as it related to the harm caused to the applicant by the process to date. Rule 496(1) reads as follows:
Rule 496. (1) The Court may, either upon application of one of the parties or of its own motion, if it is expedient in the interest of justice, re-open a trial or other hearing after it has been concluded, and before reasons for judgment have been filed or judgment has been pronounced, for such purposes, and upon such terms, as seem just.
At the time counsel for the applicant contacted the Registry, the hearing of the motion had been concluded, but reasons for an order following from the hearing had not been filed and an order relating to the substance of the matter considered at the hearing had not been pronounced. Accordingly, the request fell squarely within the terms of the Rule and, after consultations between the Registry and counsel for both parties, I agreed to reopen the hearing and did so on the afternoon of June 17, 1993.
At the reopened hearing, a motion was presented on behalf of the applicant for leave to file three affidavits, two of persons who attended the meeting on June 2, 1993, deposing as to what transpired at the meeting, and one of the applicant, in the terms of the motion, “relating to the merits and evidence argued at the original hearing of [the] motion on June 1, 1993.” The motion also requested that the Court consider the affidavits. Three affidavits were also received in the Registry on June 16, 1993, on behalf of the respondent, all of persons, including the respondent, who attended the meeting on June 2, 1993. At the close of the reopened hearing, I ordered that all six affidavits be filed in the Registry on the dates they were received therein. They are certainly all relevant to the issues before me. As requested, I have considered them in deciding on the disposition of the main motion before me and in finalizing these reasons. They have not substantially affected the result.
ANALYSIS
There are two preliminary questions with which I would like to deal briefly. Both relate to the jurisdiction of the Court to deal with this matter.
I am satisfied that the respondent Dan Fenety is a federal board, commission or other tribunal, within the definition of that expression in section 2 of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 1], in the function that he is performing in relation to this harassment complaint against the applicant. That definition reads as follows:
2. (1) …
“federal board, commission or other tribunal” means any body or any 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 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.
The definition contemplates that a federal board, commission or tribunal may be a person. I am also satisfied that in relation to this matter, the respondent is “exercising or purporting to exercise jurisdiction or powers conferred … under an Act of Parliament”, the Act being the Financial Administration Act, R.S.C., 1985, c. F-11, and that he does not fall within the exception to the scope of the definition that is contained in its closing words. Her Majesty the Queen as represented by the Minister of Agriculture was stricken as a respondent by order made at the hearing of this application as I am satisfied that Her Majesty as so represented, at least in the context of this matter, does not fit within the definition, “federal board, commission or other tribunal” and therefore cannot properly be a respondent in this application for judicial review.
That being said, and considering the relief sought in the originating motion but subject to what follows in respect of section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, I am satisfied that the originating motion is properly before the Court under section 18.1 and that the interim motion before me fits easily within the ambit of section 18.2.
The second question is more technical. Subsection 18.1(2) of the Federal Court Act reads as follows:
18.1 …
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
This subsection contemplates a specific decision or order in respect of which judicial review is sought and this concept is reflected in Rule 1602(2)(f) of the Federal Court Rules [as enacted by SOR/92-43, s. 19] which requires that an applicant’s notice of motion for judicial review set out “the date and details of the decision, order or other matter in respect of which judicial review is sought.” The “details” of the “matter” sought to be reviewed are reflected in the notice of motion herein but the “matter” is more in the nature of a continuing process than in the nature of a specific decision or order and it is thus difficult to pinpoint specific dates, other than the date when the harassment complaint was filed and various milestone dates since that time. In any event, I am satisfied that nothing turns on this issue in the context of this matter, at least for the purposes of this preliminary motion. Subject to what may be decided at a later stage of this proceeding, I am prepared for the purpose of this preliminary motion to interpret the terms of subsection 18.1(2) and Rule 1602(2)(f) broadly to encompass the situation in this matter where a number of decisions or orders have already been taken or made by the respondent in the course of the harassment investigation that have significantly impacted on the situations of the applicant and the complainant.
I will turn now to the main question that was before me.
In submissions made before me, counsel for both parties were of the opinion that the tripartite test enunciated in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, was applicable to each of the three reliefs sought by the applicant. It is clear that the test in Metropolitan Stores is applicable to the second relief requested, an injunction preventing the continuation of the process until judicial review has taken place. However, it is less clear as to how this test is to be applied in relation to the first relief sought, an order directing the applicant to be returned to his original workplace, and the third relief sought, the release of certain material. In spite of my apprehensions in this regard, I have framed my reasons in the context of the Metropolitan Stores test as argued by counsel.
The elements of the test are: first, that the applicant be able to establish a prima facie case or to show that there is a serious question to be tried; second, that the applicant will suffer irreparable harm not compensable in damages; and third, the balance of convenience, as between the parties and taking into account the public interest. The elements of the test are conjunctive. All three must be met before a relief can be granted.
(a) Serious question to be tried
Treasury Board policy defines harassment in the following terms:
Harassment means any improper behaviour by a person employed in the Public Service that is directed at and is offensive to any employee of the Public Service and which a person knew or ought reasonably to have known would be unwelcome. It comprises objectionable conduct, comment and display made on either one time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment to an employee.
The policy goes on to provide that harassment includes abuse of authority. It states:
Harassment also includes abuse of authority which means an individual’s improper use of power and authority inherent in the position held, to endanger an employee’s job, undermine the performance of that job, threaten the economic livelihood of the employee, or in any way interfere with or influence the career of such an employee. It includes such acts or misuses of power as intimidation, threats, blackmail or coercion. [Underlining added.]
The policy makes it clear that workplace harassment is unacceptable and must be taken seriously. The “Policy objective” and “Policy statement” that introduce the policy are quoted above.
The laying of an harassment complaint is a serious matter. It exposes the complainant to serious prejudice. The laying of the complaint will inevitably become known in the workplace. The atmosphere there will inevitably become difficult. Sides will be taken. Relationships will be strained. This is as true where the allegations are of abuse of authority as where they are of sexual harassment. In each case of abuse of authority there is by definition a power imbalance. The complainant risks further abuse, however subtle, of that imbalance. On the other side, the alleged harasser will also suffer in terms of prestige, reputation, possible loss of authority and respect. It is therefore important that steps be taken to mitigate the negative effects and to deal with the complaint quickly. But it is at least equally important that the complaint be dealt with fairly, both in terms of the complainant and the alleged harasser.
The applicant alleges in this case that both the particular process that has been applied by the respondent and the policy on which it is based have failed to respect the duty to act fairly and he has made substantial allegations to support his position and claims extensive and radical relief in the result. As I understand the jurisprudence, it is not for me to judge those allegations; that will be for the judge sitting on the application for judicial review. However, for the purposes of this interim motion, I am satisfied that the applicant has identified a serious issue to be tried, in the context of all three reliefs sought, relating both to the Treasury Board policy and to the process followed by the respondent to date.
(b) Irreparable harm
The applicant alleges irreparable harm to his reputation, to his well-being and to his career following from the respondent’s actions in response to the harassment complaint. In particular, documentation filed on his behalf focuses on the implications for him of the transfer from his normal place of work, the assignment to new duties, the reassignment of all or a substantial portion of his regular duties, on an acting basis, to another person and the investigative process itself. It may be implicit in his allegations and in the argument before me that such action in relation to a manager against whom a complaint is made must inevitably result in greater harm than equivalent action in relation to a complaining subordinate. While this might be true in particular fact situations, I reject it as a generalization. In my view, it was not established before me that it would be true in this fact situation.
The respondent had an obligation once the complaint was filed to take action to remove one of the parties “[i]f it is deemed by the employer to be in the best interest of all parties.” A position with substantial duties to be carried out existed in the same Branch of the Department to which the applicant could be moved. Clearly, to have left the two parties together in a small unit remote in location from all other elements of the Branch would have been difficult. The applicant does not appear to question the authority in law of the respondent to take the reassignment action he did, so long as that action is taken in accordance with law.
The critical question under this portion of the test as it relates to the first relief requested on this application, that is, return of the applicant to his pre-complaint workplace and duties, would appear to me to be whether failure to return the applicant at this time to that workplace and those duties will result in irreparable harm not compensable in damages? On this interpretation of the test I must conclude the answer is “no”. Whatever harm may have been incurred to this date by the removal and reassignment cannot now be remedied by a return. That harm, whatever it may be, has been done. It is my conclusion based on the material and argument before me that any further harm that may accrue by continuation of the current arrangements, or other equivalent arrangements, until this matter is finally concluded, will be only marginal.
(c) Balance of convenience
Having failed to find irreparable harm in relation to the first relief requested by the applicant, I do not propose to address that relief in relation to this element of the test since the elements of the test must all be met in order to justify any particular relief. Similarily, I have not addressed the first element of the test in relation to the second relief requested and will now deal with it since, in my view, this element of the test is particularly relevant, in relation to the second relief requested, namely, a stay against the respondent taking any further steps in relation to the matters under judicial review.
The question of balance of convenience, or balance of inconvenience as it is sometimes described, in the circumstances of this case cannot, in my view, be assessed only on the basis of the convenience or inconvenience of the parties to this proceeding. The applicant pleads a major inconvenience amounting in his opinion to a likely fundamental breach of the duty to act fairly if a stay is not granted. The respondent would suffer only limited inconvenience that I can discern if a stay were granted. However, the convenience of the complainant can surely not be ignored and there is no evidence before me that she is concerned about the fairness of the process to date regarding her complaint, or fears that if the process were allowed to run its course the result would be unfair. On the other hand, if a stay were granted, thus ensuring that the current state of tension and uncertainty is continued, it is not difficult to conclude that she would be caused further substantial inconvenience. There is also a broader public interest involved. I am in no position to estimate the number of harassment complaints currently under investigation throughout the Public Service that are being conducted pursuant to the Treasury Board policy or that policy with a gloss on it that adapts it to the particular circumstances of a department or agency. I suspect there are many. Whatever the number may be, I am concerned that to grant a stay in this matter would have a chilling effect on all of them to the substantial inconvenience of many since the policy itself is impugned in this proceeding, not simply the application by the respondent of the policy to the facts of this particular complaint. In the circumstances, I find that the balance of convenience does not favour the applicant.
There remains the question of the third relief requested, the release of certain material to the applicant. Issues of “irreparable harm” and “balance of convenience” in relation to this relief are very much in the hands of the respondent.
Counsel for the respondent interpreted this requested relief as a written request for material pursuant to Rule 1612 [as enacted by SOR/92-43, s. 19] of the Federal Court Rules and therefore produced what he considered to be all the material relevant to the request at the hearing in a sealed envelope for review by the Court, thereafter to be dealt with as the Court saw fit. With great respect, I do not interpret the applicant’s request for relief the same way. It is clear to me that, if a stay of the harassment process being conducted by the respondent were not granted, the applicant regards the requested material as essential if a resumed process before the respondent was to meet one of the elements of a fairness test, that is, the right of one of the parties to know the details of the case made against him. Thus, the request for the material is not simply for use in relation to these proceedings. For that reason, I refused to accept the material tendered by counsel for the respondent.
But that is not the end of the matter. Proceedings before the respondent may well be resumed and, indeed, completed before the application for judicial review is finally dealt with since I do not propose to order a stay. On the face of it, the materials requested on behalf of the applicant would appear to me to be materials obtained or compiled specifically for the purpose of this harassment complaint. If I am right in this, they fall squarely within the terms of paragraph 8(2)(a) of the Privacy Act, R.S.C., 1985, c. P-21 and may, and in my opinion should, if they are to be used by the respondent in further consideration of the harassment complaint, be released to both parties to that complaint. The Treasury Board policy cannot be relied on as a defence to full sharing of information proposed to be used by a person such as the respondent in reaching a final disposition of the complaint. It is true that the policy provides that parties have the right to be kept informed throughout the process “subject to both the Access to Information Act and the Privacy Act” but I interpret that to mean subject to all of the provisions of those Acts including paragraph 8(2)(a) of the Privacy Act. If the material is not shared, and is used, as it likely already has been in the investigation process, that will be a matter that will undoubtedly come before this Court later in these proceedings.
I do not propose to order the production of the material requested because it is not clear to me that the applicant will suffer irreparable harm if I fail to do so or even that the balance of convenience favours my doing so, bearing in mind the “convenience” of those who provided information, possibly without warning that it might be shared. I leave the dilemma to the respondent. If the material has been used or will be used, surely it must be shared unless extraordinary circumstances that have not been argued before me exist. If it has not been used and will not be used except to the extent that it has been shared, I foresee no breach of fairness. If it has been used and full sharing is not provided, the respondent must be prepared to defend the fairness of his process.
CONCLUSION
In the result, the three interim reliefs requested are not granted. The motion for interim relief is dismissed.