Detorakis v. Canada (Attorney General)

Detorakis v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2010-01-13
Neutral citation
2010 FC 39
File numbers
T-1078-08
Decision Content
Federal Court
Cour fédérale
Date: 20100113
Docket: T-1078-08
Citation: 2010 FC 39
Ottawa, Ontario, January 13, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOHN DETORAKIS
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to section 51.2 of the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (PSDP Act) for judicial review of a decision dated June 4, 2008 (Decision) of the Public Sector Integrity Commission, which refused to register the Applicant’s disclosure of wrongdoing and to provide him with legal assistance.
BACKGROUND
[2] The Applicant was an employee of the Canadian Nuclear Safety Commission (CNSC). He made access to information requests within the CNSC in 2003 and 2006.
[3] The Applicant became concerned that public records had been concealed and amputated in order to impede his disclosure request. He was also concerned that there had been a fabrication of evidence in order to affect the proceedings of a tribunal.
[4] The Applicant attempted to have his complaints investigated by the Office of the Information Commissioner. However, his complaint was submitted after the one-year complaint deadline, so the OIC found the matter was outside its jurisdiction. The Applicant was informed that he could resubmit his access to information request within the CNSC.
[5] The Applicant then wrote to the Public Sector Integrity Commissioner (PSIC), requesting that his complaints be heard by the PSIC, and expressing his concern that the OIC had not referred his complaint to another investigating authority with the jurisdiction to handle his complaint.
DECISION UNDER REVIEW
[6] Based on the documentation provided by the Applicant, the PSIC was satisfied that the Applicant’s concerns pertained to access to information requests from within his own institution. She noted that the Applicant was also attempting to lodge a complaint against the OIC’s response to his complaint.
[7] The PSIC was satisfied that the Applicant’s complaints to the OIC had been investigated, and it was simply the results of the investigation that were unsatisfactory to him.
[8] The PSIC then applied section 24(1) of the Act and determined that the Applicant’s complaints were part of a process provided for by another Act of Parliament.
[9] Further, the PSIC noted that the Applicant could approach his local police force with his allegations of indictable offenses, the concealment and amputation of public records, and also with his concerns about the fabrication of evidence.
ISSUES
[10] The self-represented Applicant has raised the following issues on this application:
1. What is the required content of Procedural Fairness when a public servant discloses wrongdoing in the Public Service and seeks legal consultation for reprisals related to the disclosures?
2. Was there a breach in the required content of procedural fairness and natural justice in this case?
3. Did the PSIC err in deciding that the disclosed offenses pertaining to section 67.1 of the Act had been dealt with?
4. If the PSIC did not err, was the Decision unreasonable because of the inference that the police are the appropriate authority to investigate the indictable offences of record concealment?
STATUTORY PROVISIONS
[11] The following sections of the Act are applicable in these proceedings:
15.1 In making a disclosure under this Act, a public servant must
(a) provide no more information than is reasonably necessary to make the disclosure; and
(b) follow established procedures or practices for the secure handling, storage, transportation and transmission of information or documents, including, but not limited to, information or documents that the Government of Canada or any portion of the public sector is taking measures to protect.
…
22. The duties of the Commissioner under this Act are to
(a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;
(b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;
(c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;
(d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;
(g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations; and
(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
…
Right to refuse
24. (1) The PSIC may refuse to deal with a disclosure or to commence an investigation — and he or she may cease an investigation — if he or she is of the opinion that
(a) the subject-matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament;
…
25.1 (1) The Commissioner may provide access to legal advice to
(a) any public servant who is considering making a disclosure of wrongdoing under this Act;
(b) any person who is not a public servant who is considering providing information to the Commissioner in relation to any act or omission that may constitute a wrongdoing under this Act;
(c) any public servant who has made a disclosure under this Act;
(d) any person who is or has been involved in any investigation conducted by a senior officer or by or on behalf of the Commissioner under this Act;
(e) any public servant who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or
(f) any person who is or has been involved in a proceeding under this Act regarding an alleged reprisal.
(2) The Commissioner may provide the access to legal advice only if the public servant or person satisfies the Commissioner that they do not have other access to legal advice at no cost to them.
Additional condition
25. 1(3) In addition to the condition referred to in subsection (2), the PSIC may provide access to legal advice to a public servant referred to in paragraph (1)(a) or a person referred to in paragraph (1)(b) only if the PSIC is of the opinion that the act or omission to which the disclosure or the information relates, as the case may be, likely constitutes a wrongdoing under this Act and that the disclosure or the provision of the information is likely to lead to an investigation being conducted under this Act.
15.1 Le fonctionnaire qui fait une divulgation au titre de la présente loi :
a) ne communique que les renseignements qui sont raisonnablement nécessaires pour faire la divulgation;
b) se conforme aux règles et procédures relatives à la manipulation, la conservation, le transport et la transmission de renseignements ou documents, notamment ceux à l’égard desquels le gouvernement fédéral ou un élément du secteur public prend des mesures de protection.
…
22. Le commissaire exerce aux termes de la présente loi les attributions suivantes :
a) fournir des renseignements et des conseils relatifs aux divulgations faites en vertu de la présente loi et à la tenue des enquêtes menées par lui;
b) recevoir, consigner et examiner les divulgations afin d’établir s’il existe des motifs suffisants pour y donner suite;
c) mener les enquêtes sur les divulgations visées à l’article 13 ou les enquêtes visées à l’article 33, notamment nommer des personnes pour les mener en son nom;
d) veiller à ce que les droits, en matière d’équité procédurale et de justice naturelle, des personnes mises en cause par une enquête soient protégés, notamment ceux du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible;
e) sous réserve de toute autre loi fédérale applicable, veiller, dans toute la mesure du possible et en conformité avec les règles de droit en vigueur, à ce que l’identité des personnes mises en cause par une divulgation ou une enquête soit protégée, notamment celle du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible;
f) établir des procédures à suivre pour le traitement des divulgations et assurer la confidentialité des renseignements recueillis relativement aux divulgations et aux enquêtes;
g) examiner les résultats des enquêtes menées sur une divulgation ou commencées au titre de l’article 33 et faire rapport de ses conclusions aux divulgateurs et aux administrateurs généraux concernés;
h) présenter aux administrateurs généraux concernés des recommandations portant sur les mesures correctives à prendre et examiner les rapports faisant état des mesures correctives prises par les administrateurs généraux à la suite des recommandations;
i) recevoir et examiner les plaintes à l’égard des représailles, enquêter sur celles-ci et y donner suite.
…
Refus d’intervenir
24. (1) Le commissaire peut refuser de donner suite à une divulgation ou de commencer une enquête ou de la poursuivre, s’il estime, selon le cas :
a) que l’objet de la divulgation ou de l’enquête a été instruit comme il se doit dans le cadre de la procédure prévue par toute autre loi fédérale ou pourrait l’être avantageusement selon celle-ci;
…
25.1 (1) Le commissaire peut mettre des services de consultation juridique à la disposition des personnes suivantes :
a) tout fonctionnaire qui envisage de divulguer un acte répréhensible en vertu de la présente loi;
b) toute personne autre qu’un fonctionnaire qui envisage de communiquer des renseignements au commissaire concernant un acte ou une omission susceptible de constituer un acte répréhensible en vertu de la présente loi;
c) tout fonctionnaire qui a fait une divulgation en vertu de la présente loi;
d) toute personne qui participe ou a participé à une enquête menée par un agent supérieur ou le commissaire, ou en son nom, en vertu de la présente loi;
e) tout fonctionnaire qui envisage de présenter une plainte en vertu de la présente loi concernant les représailles dont il aurait été victime;
f) toute personne qui participe ou a participé dans une procédure visée par la présente loi concernant de prétendues représailles.
(2) Il ne peut mettre des services de consultation juridique à la disposition de l’intéressé que si celui-ci le convainc qu’il ne peut autrement obtenir gratuitement des conseils juridiques.
Condition supplémentaire
25. 1(3) Il ne peut non plus mettre des services de consultation juridique à la disposition du fonctionnaire visé à l’alinéa (1)a) ou de la personne visée à l’alinéa (1)b) que s’il est d’avis que la divulgation ou les renseignements portent sur un acte ou une omission susceptible de constituer un acte répréhensible en vertu de la présente loi et qu’ils pourraient mener à la tenue d’une enquête en vertu de celle-ci.
STANDARD OF REVIEW
[12] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review” (Dunsmuir at paragraph 44). Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[13] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[14] The Respondent submits that in the present case the standard of review of the Decision under review has not been previously established by jurisprudence. Thus, the standard of review must be based on an examination of: 1) the existence or absence of a privative clause or a statutory right of appeal; 2) the expertise of the decision maker; 3) the purpose of the decision maker; and 4) the nature of the question at issue.
[15] The Respondent submits that even though no privative clause exists, Parliament has made the PSIC’s decisions with regard to both sections 24(1) and 25(1)(3) discretionary in nature. The discretionary nature of this decision reflects the PSIC’s expertise in addressing disclosures under the Act. Such expertise militates in favour of a deferential approach to review. Furthermore, this is an issue of mixed fact and law, and issues of mixed fact and law are generally considered on a reasonableness standard. See Dunsmuir at 164.
[16] I agree with the Respondent that a standard of reasonableness is appropriate for reviewing the PSIC’s Decision as to whether the Applicant’s complaint had been appropriately dealt with.
[17] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[18] The Applicant has also brought issues of procedural fairness before the Court. Issues of procedural fairness and natural justice are to be determined on a standard of correctness. See Dunsmuir at paragraphs 126 and 129.
ARGUMENTS
The Applicant
Duty of procedural fairness
[19] The Applicant submits that the factors in Baker v. Canada (Minister of Citizenship and Immigration), 174 D.L.R. (4th) 193, [1999] S.C.J. No. 39 require a high threshold of procedural fairness in this instance. These factors include: a) the decision making process and the choice of procedure; b) the statutory scheme; c) the importance of the decision to the individual affected; and d) the legitimate expectations of the parties.
[20] The Applicant contends that the decision making process and the choice of procedure is framed by the duties of the PSIC, which are listed in the Act. The inclusion of procedural fairness in the duties of the PSIC in section 22(d) requires a high duty of procedural fairness.
[21] The Applicant submits that the statutory scheme also militates in favour of a high content of procedural fairness, since no appeal process exists within the Act. Rather, the PSIC’s decisions on whether or not to accept a disclosure and provide legal representation are determinative. The Applicant further submits that an opportunity to be heard on the findings and recommendations put forth by the PSIC is required pursuant to the statutory scheme.
[22] The PSIC’s decision on whether or not to accept a public servant’s disclosure is important, especially when the public servant has experienced reprisals because of his disclosure. The PSIC’s dismissal of the disclosure will affect the public servant’s ability to protect his career, so that a high content of procedural fairness is required. A high content of procedural fairness in a similar context was recognized in Kane v. University of British Columbia, [1980] 1 S.C.R. 1105. The Applicant also made the importance of the decision clear to the PSIC when he sent her a letter in which he stated that he was seeking legal consultation for reprisals related to his disclosure.
[23] Finally, the Applicant submits that the letter he received from the PSIC Registrar on May 22, 2008, in which he was told that the analyst assigned to his disclosure would contact him, created a legitimate expectation that he would be heard in the decision making process. According to Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16, 61 D.L.R. (4th) 313:
[W]hen a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.
[24] The Applicant believes that he had a legitimate expectation to be heard before the decision on the receivability of his disclosure was made.
Breach of procedural fairness
[25] The Applicant submits that the duty of procedural fairness was breached because the process and procedure created by the PSIC to determine the receivability of disclosures was altered in a way that reduced procedural fairness and deprived him of the opportunity to address the findings of the analyst.
[26] The nature of the statutory scheme and the importance of the decision to the Applicant both require that he should have had an opportunity to be heard before the decision was made. Furthermore, a legitimate expectation was created through the letter received by the Applicant which promised that he would have the opportunity to communicate with the analyst assigned to his disclosure.
Erroneous findings of fact
[27] The Applicant’s disclosure to the PSIC was concerned with the indictable offence of destroying, mutilating or concealing a record. He informed the PSIC that his disclosure did not pertain to the denial of access to information complaint that had been dealt with by the OIC.
[28] In her decision, the PSIC does not provide evidence of what she relied upon to conclude that the OIC had dealt with the issues of the disclosure of indictable offences pursuant to section 67.1 of the Access to Information Act, R.S.C., 1985, c. A-1. Moreover, the PSIC’s decision made no reference to the Applicant’s evidence that the OIC did not investigate the offences alleged under the Access to Information Act. Such evidence completely contradicts the finding that the PSIC had dealt with the disclosure with regard to the offences of concealment and the mutilation of records.
[29] Although the PSIC’s decision stated that she considered all the evidence, the Court may nonetheless infer an erroneous finding of fact from the tribunal’s failure to mention the evidence before it that contradicted its finding. See Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 157 F.T.R 35, [1998] F.C.J. No. 1425 (QL). As stated in Ali v. Canada (Minister of Citizenship and Immigration), 2008 FC 448, [2008] F.C.J. No. 528 (QL), while the decision maker may choose the evidence it prefers, it may commit a reviewable error if it fails to mention and analyze important evidence which is inconsistent with its conclusion.
Reference to police
[30] The Applicant also submits that it is unreasonable for the PSIC to dismiss a disclosure based on the fact that it will be better investigated by another authority that does not have the jurisdiction to investigate. This occurred in the case at hand, since the RCMP told the Applicant that it has no jurisdiction to investigate a disclosure under section 67.1 of the Access to Information Act.
[31] The Applicant submits that the PSIC’s decision with regard to disclosure of the concealment offences was based on an erroneous finding of fact or, in the alternative, that it relied on an unreasonable application of her discretion.
Order Sought
[32] The Applicant requests that the Court issue an order of mandamus that PSIC register the Applicant’s disclosures into offences pursuant to section 67. 1 of the Access to Information Act, and also that the Applicant be provided with legal consultation with regard to the disclosures he made to the PSIC.
The Respondent
[33] The Respondent agrees that the Baker factors must be assessed to determine the content of the procedural fairness owed in this case. However, the Respondent distinguishes between the two different regimes in the Act, one of which is for wrongdoing and the other is for reprisal complaints. The Respondent contends that the former is based on a public servant coming forward as a witness to an act or omission of wrongdoing pursuant to section 8 of the Act. This regime is not a dispute between the discloser and his/her employer. The latter regime, however, is a complaint process where the rights of the complainant have been directly affected by a reprisal taken against him. Sections 12 and 13 of the Act set out the threshold of information that is expected of a public servant in his or her disclosure.
[34] The Respondent contends that the criteria in section 12 are equally applicable to a disclosure made to the PSIC under section 13. These criteria are subjective and impose a minimal burden on the discloser. The Respondent believes that this is qualified by section 15.1 of the Act which states that the public servant is not expected to have all the information to make a disclosure. It also limits the scope of the information that the public servant is expected to provide to the Commission.
[35] In this case, the Applicant made a disclosure pursuant to section 13 of the Act which confers a right on a public servant to disclose information of wrongdoing. The Respondent submits that the standard to be applied as a condition for commencing an investigation following a disclosure by a public servant is determined by the PSIC in accordance with paragraph 22(b) of the Act.
[36] To determine whether sufficient grounds exist for further action, the PSIC must determine if the issue of the disclosure concerns a wrongdoing related to the public sector, as defined in section 8 of the Act. In subsection 24(1), the Act provides a discretionary right to refuse to deal with a disclosure. Furthermore, restrictions in sections 23(1) and 24(2) may also determine whether disclosure should be refused.
[37] Pursuant to the Act, the PSIC is not required to hear from the discloser before making a decision on the basis of sections 23 and 24. The PSIC may seek more information or clarifications necessary from the discloser if required. However, in this case, the analyst determined that the Applicant had taken his claim to the OIC and suggested that the PSIC take no further action on this basis. The PSIC accepted this recommendation.
Nature of the decision making process
[38] The Respondent submits that the PSIC’s role is advisory rather than judicial. Furthermore, her recommendations are not enforceable by the Court. Although she is an agent of Parliament, her role is simply to make Parliament aware of wrongdoings in the public sector.
[39] The process followed to make a disclosure under the Act is intended to be both informal and expeditious, and is not similar to the trial process. Furthermore, the investigators and the PSIC have much flexibility in how they analyze and reach conclusions. The Respondent submits that these factors militate in favour of a low standard of procedural fairness.
[40] The Act sets minimal obligations with regard to audi alteram partem. These include:
1. The obligation to give notice – The PSIC must inform the discloser if she refuses to deal with the disclosure or to begin an investigation (subsection 24(3)). The Respondent contends that this was done by letter on June 12, 2008;
2. The right to be heard – The PSIC is not required to hold a hearing or hear anyone unless it seems that a report or a recommendation might adversely affect an individual (subsection 27(3)). In such a situation, the person will be given a full opportunity to answer any allegation made. A right to counsel in this situation also exists. However, the opportunity to answer occurs only during an investigation, not when determining whether or not a disclosure is admissible;
3. Duty to communicate the findings – The PSIC is required to report on her findings to the discloser pursuant to paragraph 22(g). However, the Respondent contends that the recommendations made with regard to measures to be taken to correct wrongdoings are not necessarily part of this report on findings;
4. The right to counsel – The right to counsel exists where an individual may be adversely affected during an investigation, either by a report of findings or a recommendation (subsection 27(3)).
Nature of the Statutory Scheme
[41] According to the Act’s preamble, the Act is intended to enhance confidence in public institutions by “establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings.”
[42] The PSIC is granted a discretionary power under subsection 24(1) of the Act in which she can refuse to deal with a disclosure or choose to begin an investigation. This decision is final and cannot be appealed.
[43] In order to allow her to decide whether it is in the public’s interest for an investigation to occur based on the listed grounds, the discretion given to the PSIC by subsection 24(1) is wide. She may also decide that the matter could be better dealt with by another office. The Respondent submits that the PSIC’s office has expertise in determining whether the information given by a discloser could constitute a wrongdoing, and whether an investigation is appropriate.
Importance of the decision to the individual
[44] Subsection 51.2 of the Act creates a presumption in favour of the discloser in allowing them to obtain a judicial review.
[45] The Respondent contends that the existence of subsection 51.2 requires that the discloser have access to some information in order to be able to bring his case before the Court. Thus, the discloser would have access to all of the material before the decision maker in making a determination on judicial review. The Respondent submits that this ensures transparency and accountability in the decision-making process.
Legitimate Expectations
[46] The Respondent submits that the factors of the case at hand are determinative of the issue of legitimate expectations. After the discussion with the analyst in April of 2008, the Applicant submitted the documentation to support his allegation of wrongdoing. The information provided by the Applicant was deemed sufficient to determine the issues of admissibility. The Respondent says that, on the facts of this case, no legitimate expectation of an oral hearing existed.
Choice of Procedure
[47] The PSIC is required to determine whether or not there are sufficient grounds for action based on the information received. In this case, the decision was made following a phone call and after consideration of all of the Applicant’s documentation. This was enough information for the analyst to make a recommendation to the PSIC. In this case, the PSIC’s office followed its usual procedures which included a multi-disciplinary approach and multiple levels in the review of the file by the analyst/investigator, the registrar, Legal Services, Deputy PSIC and the PSIC.
[48] The PSIC may also authorize funding to pay for the provision of legal advice pursuant to section 25.1. She may also choose to have legal advice provided thorough legal counsel employed in her office.
[49] Section 25.1 lays out the admissibility criteria to qualify for such legal advice. These criteria include:
1. If the public servant satisfies the PSIC that they do not have other access to legal advice at no cost. See subsection 25.1(2); and
2. The public servant is considering providing information to the PSIC in relation to any act or omission that:
a. Likely constitutes a wrongdoing under the Act;
b. The disclosure of which is likely to lead to an investigation being conducted under the Act. See subsection 25.1(3).
Other considerations include:
3. The degree to which the public interest may be affected by the subject-matter of the disclosure of the information provided; and
4. The degree to which the public servant would be adversely affected as a result of making the disclosure.
[50] The Respondent suggests that the principle arising from paragraph 25.1(7)(b) is also relevant in determining the overall admissibility of legal advice, since the Act is intended to encourage public servants to come forward with information regarding possible wrongdoing and to protect them against reprisals for disclosure. Although a discloser may be disappointed with the PSIC’s decision not to investigate, that person will not suffer prejudice or be adversely affected by the decision. Nor should a finding or wrongdoing or a finding to not investigate further cause a prejudice to the discloser.
[51] In this case, the disclosure did not lead to an investigation. On the basis of the Act and the principles contained in the Act, the Applicant’s rights were deemed to be minimally affected by the PSIC’s decision under section 24(1). Accordingly, he did not qualify for legal advice under section 25.1.
[52] The Respondent also draws a distinction between the provision of general advice and a formal request to receive legal advice under section 25.1. While the former is a routine occurrence, the latter is intended to give specific legal advice to those who are considering making a disclosure of wrongdoing with regard to their rights and obligations, and to help them determine their best course of action.
Low threshold of procedural fairness
[53] The Respondent contends that the threshold for procedural fairness in this instance is minimal, based on an examination of both the Baker factors and the Act itself.
[54] The analyst spoke with the Applicant and explained the process to him. The Applicant was then permitted to provide supporting documents, which were considered by the PSIC’s office before the decision was made. Accordingly, the Respondent submits that the Applicant was afforded the appropriate level of procedural fairness.
Commissioner’s Decision was reasonable
[55] Much of the Applicant’s record in this application is material that was not before the decision maker at the time the decision was made. In determining the reasonableness of the PSIC’s decision, the Court must limit its analysis to consideration of the material that was before the decision maker at the time the decision was made. See Beci v. Canada, 130 F.T.R. 267, [1997] F.C.J. No. 584.
[56] The PSIC decided that disclosure could not be accepted by her office because it had already been addressed by the OIC. This decision was reasonable given both the PSIC’s discretion under the Act and the facts before her at the time the decision was made.
[57] The information provided by the Applicant contained issues that had been previously raised before, and dismissed by, the OIC. The PSIC reasonably exercised her discretion under paragraph 24(1)(a) in this instance.
[58] The OIC’s November 7, 2007 letter to the Applicant stated that it lacked jurisdiction because the Applicant was out of time to file his complaint. It is unreasonable for the Applicant, having missed the time limitation, to now argue that the PSIC must step in to conduct an investigation under a different legislative scheme. The Respondent submits that this is tantamount to advancing the same issue collaterally in a different forum simply because the Applicant missed the original body’s time limitation.
ANALYSIS
The Basic Situation
[59] The underlying application is for judicial review of a decision by the PSIC, Mme Christiane Ouimet, in which she declined to exercise her jurisdiction to investigate the Applicant’s disclosure of alleged wrongdoing by public officials and declined to provide him with funding to obtain legal advice.
[60] The disclosure was submitted by the Applicant on April 16, 2008 pursuant to section 13 of the PSDP Act and relates to alleged actions taken by his employer, CNSC, in response to his request for information concerning staff relations issues.
[61] The Applicant initially filed a complaint with CNSC management in 2003. Dissatisfied with the response, in 2006 he then sought the intervention of the Office of the Privacy Commissioner of Canada which referred his complaint to the OIC as an access issue. The OIC advised the Applicant in November 2006 that he was out of time to bring his complaint but that he could make a fresh access application to CNSC and file a new complaint with OIC should the application be refused.
[62] The Applicant contested this assessment arguing in his subsequent correspondence with the OIC and in his April 16, 2008 disclosure to the PSIC that the issue was not the refusal of an access request but, rather, the concealment of records and fabrication of evidence in order to deny him access to the requested information.
[63] The Applicant asserts that the OIC maintains an open file but has failed to investigate his allegations of criminal wrongdoing. This prompted his disclosure to PSIC. On this and other complaints, he has sought the intervention of the Minister of Labour and also the Minister of Justice and Attorney General of Canada. In their replies, the former indicated he could not intervene and the latter’s office suggested that if the Applicant has evidence of criminal acts, he should contact his local police.
[64] The PSIC’s decision was communicated to the Applicant in a letter signed by Mr. Wayne Watson, then Deputy PSIC, on June 12, 2008. The letter referred to paragraph 24(1)(a) of the PSDP Act which provides that the PSIC may refuse to deal with a disclosure if he or she is of the opinion that the subject matter has been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under another Act of Parliament. The letter referred to the assessment conducted by the OIC under the Access to Information Act as the basis for declining to act on the disclosure. The Applicant was again advised that he could address his allegations of criminal misconduct to his local police service.
[65] In his notice of application under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, filed on July 11, 2008, the Applicant seeks a writ of mandamus to compel the PSIC to accept his disclosures of wrongdoing and approve funding for legal consultation.
The Decision
[66] Section 22(d) of the PSDP Act imposes upon the PSIC a duty to:
(d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
d) veiller à ce que les droits, en matière d’équité procédurale et de justice naturelle, des personnes mises en cause par une enquête soient protégés, notamment ceux du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible;
[67] The Applicant’s letter of April 16, 2008 to the PSIC Registry made disclosures related to:
1. Indictable offences of concealment and amputations of public reasons to impede disclosure of information requested under the Access to Information Act; and
2. Fabrication of evidence to affect the proceedings of tribunals.
This was a complaint under section 13 of the PSDP Act, and not a complaint relating to reprisals under section 19.1 or 19.2 of the PSDP Act.
[68] This disclosure reflected the telephone discussion the Applicant had with Mr. Ronald Calvert, the analyst for the PSIC, on April 16, 2008 as set out in Mr. Calvert’s affidavit of July 10, 2009, as well as the materials submitted by the Applicant with his faxed letter of April 16, 2006.
[69] Section 13 of the PSDP Act allows a public servant to disclose information to the PSIC that could show a wrongdoing.
[70] When making disclosure under section 13, the public servant is bound by section 15.1:
15.1 In making a disclosure under this Act, a public servant must
(a) provide no more
information than is reasonably necessary to make the disclosure; and
(b) follow established procedures or practices for the secure handling, storage, transportation and transmission of information or documents, including, but not limited to, information or documents that the Government of Canada or any portion of the public sector is taking measures to protect.
15.1 Le fonctionnaire qui fait une divulgation au titre de la présente loi :
a) ne communique que les
renseignements qui sont raisonnablement nécessaires pour faire la divulgation;
b) se conforme aux règles et procédures relatives à la manipulation, la conservation, le transport et la transmission de renseignements ou documents, notamment ceux à l’égard desquels le gouvernement fédéral ou un élément du secteur public prend des mesures de protection.
[71] In dealing with complaints under the PSDP Act, the PSIC is subject to the general duties set out in section 22 :
22. The duties of the Commissioner under this Act are to
(a) provide information and advice regarding the making of disclosures under this Act and the conduct of investigations by the Commissioner;
(b) receive, record and review disclosures of wrongdoings in order to establish whether there are sufficient grounds for further action;
(c) conduct investigations of disclosures made in accordance with section 13, and investigations referred to in section 33, including to appoint persons to conduct the investigations on his or her behalf;
(d) ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
(f) establish procedures for processing disclosures and ensure the confidentiality of information collected in relation to disclosures and investigations;
(g) review the results of investigations into disclosures and those commenced under section 33 and report his or her findings to the persons who made the disclosures and to the appropriate chief executives;
(h) make recommendations to chief executives concerning the measures to be taken to correct wrongdoings and review reports on measures taken by chief executives in response to those recommendations; and
(i) receive, review, investigate and otherwise deal with complaints made in respect of reprisals.
22. Le commissaire exerce aux termes de la présente loi les attributions suivantes :
a) fournir des renseignements et des conseils relatifs aux divulgations faites en vertu de la présente loi et à la tenue des enquêtes menées par lui;
b) recevoir, consigner et examiner les divulgations afin d’établir s’il existe des motifs suffisants pour y donner suite;
c) mener les enquêtes sur les divulgations visées à l’article 13 ou les enquêtes visées à l’article 33, notamment nommer des personnes pour les mener en son n