Canada (Attorney General) v. Canada (Public Sector Integrity Commissioner)

Canada (Attorney General) v. Canada (Public Sector Integrity Commissioner)
Court (s) Database
Federal Court Decisions
Date
2016-07-29
Neutral citation
2016 FC 886
File numbers
T-2368-14
Notes
Reported Decision
Decision Content
Date: 20160729
Docket: T-2368-14
Citation: 2016 FC 886
Ottawa, Ontario, July 29, 2016
PRESENT: The Honourable Madam Justice Elliott
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
PUBLIC SECTOR INTEGRITY
COMMISSIONER OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview A. The Legislation at Issue [1] In 2007, Parliament passed the Public Servants Disclosure Protection Act, SC 2005, c 46 [PSDPA], commonly known as “whistleblower” legislation. The PSDPA established the Office of the Public Sector Integrity Commissioner to receive disclosures of wrongdoings in the public sector.
[2] The Commissioner has a duty to review disclosures. Where the Commissioner determines there are sufficient grounds for further action, there is a duty to conduct an investigation of such disclosures. The Commissioner has a duty to submit a report to Parliament after making a finding of wrongdoing. Written comments from the chief executive of the investigated organization are included in the report.
[3] This judicial review requires, for the first time, an examination of subsection 23(1) of the Act. It restricts the ability of the Commissioner to deal with a disclosure “if a person or body acting under another Act of Parliament is dealing with the subject-matter of the disclosure”.
[4] The idiom “the devil is in the details” applies to this dispute. The parties are each well‑intentioned. The facts are largely undisputed but, each party takes a very different approach to what the facts mean and how to apply them to the legislation.
B. The Finding of Wrongdoing [5] In November 2014, after investigating a disclosure involving the Ottawa Air Section [OAS] of the RCMP Air Services Branch [ASB], the Commissioner made a finding of wrongdoing and, as he is required to do in such an instance, he reported the details to Parliament. He found that false entries had been made by pilots in their Aircraft Journey Logbooks. The Commissioner found that with incorrect information in the logbooks, the RCMP could not ensure the aircraft were flown within weight and balance limits. He also found after reviewing several logbooks that aircraft had been flown overweight in 2012.
[6] The Commissioner concluded that paragraph 602.07(a) of Canadian Aviation Regulations, SOR/96-433, had been contravened because aircraft are required to be operated within the limitations in the flight manual. His report emphasized he was satisfied with the RCMP’s response, they cooperated fully with the investigation, and the contraventions did not create dangers to the life, health or safety of persons. But, he noted, regulations were contravened, and that is defined in the PSDPA as a wrongdoing. [See PSDPA ss. 8(a) in the attached Annex.]
C. The Sole Issue Raised by the RCMP is Jurisdiction [7] The RCMP says the Commissioner had no authority to investigate the disclosure because Transport Canada [TC] was already dealing with the subject-matter of the disclosure under the Aeronautics Act, RSC 1985, c A-2. The RCMP says therefore a plain reading of subsection 23(1) shows the Commissioner had no authority or jurisdiction to investigate the disclosure.
[8] The Commissioner says this is not a question of whether he had jurisdiction to investigate. It is a normal question of statutory interpretation by the Commissioner of the legislation under which he operates ─ his “home statute” ─ and he is entitled to deference in his interpretation. He interpreted both subsections 23(1) and 24(1) and says his interpretations in each case were reasonable given the nature of the TC activity was an “advisory assessment” that was in the nature of an audit.
D. The Standard of Review [9] The parties agree the standard of review for the Commissioner’s interpretation of subsection 24(1) is reasonableness, as previously determined in other cases. However, subsection 23(1) has not been previously interpreted and the parties do not agree on that standard of review.
[10] In the reasons that follow, I have determined the presumption of reasonableness review when a tribunal is interpreting its home statute, established in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [Alberta Teachers’] has not been rebutted. The standard of review of the interpretation of subsection 23(1) by the Commissioner is reasonableness.
E. The Commissioner Raises Two Preliminary Issues [11] The Commissioner raises two preliminary issues: (1) whether the RCMP has the right to seek judicial review of the Case Report since the findings are non-binding recommendations; (2) whether any weight should be given to an affidavit filed by the RCMP as part of this proceeding.
[12] For the reasons that follow I have determined the RCMP may seek judicial review.
[13] I have also determined the affidavit will not be considered with respect to any matters that were not before the Commissioner nor any legal conclusions or analysis it contains.
F. Order Sought by the RCMP [14] The Notice of Application by the RCMP seeks judicial review of the finding made by the Commissioner on October 14, 2014, as amended on October 31, 2014 [the “Amended Decision”] in respect of file No. PSIC 2012-D- 0328. Attached to the Amended Decision was the Case Report that subsequently was tabled in Parliament. The RCMP seeks an order quashing or setting aside the Amended Decision.
[15] Although originally there were four different grounds of review alleged by the RCMP, at the hearing of this matter the only ground pursued was that the Commissioner acted without jurisdiction either under subsection 23(1), when he investigated the disclosure, or under subsection 24(1), when he failed to exercise his discretion not to investigate the disclosure.
[16] For the reasons that follow, based on the specific facts of this case (the “details”), I have determined that the Commissioner’s decision that subsection 23(1) did not apply to prevent his investigation was reasonable. I find his interpretation of subsection 24(1) was reasonable. I also find section 23(1) may not have applied at all given the timing and sequence of critical events.
[17] Relevant excerpts of the legislation referred to in this judgment are set out in the attached Annex.
II. Background A. The Attorney General as Applicant [18] The Attorney General, on behalf of the RCMP, has brought this application for judicial review. The Attorney General confirmed at the hearing that they were not appearing as of right as a public interest litigant. They appear solely on behalf of the RCMP. To avoid any confusion, these reasons for judgment will refer to the RCMP as if they were the Applicant.
B. Significant Activities of the Commissioner’s Office and TC [19] In considering whether the Commissioner reasonably interpreted subsection 23(1) or properly exercised his discretion under subsection 24(1), it is useful to review the chronology of significant activities of TC and the Commissioner in relation to the OAS. The chronology of events (“the details”) setting out “who was doing what and when” is important when looking at the legislation to review the reasonableness of the Commissioner’s interpretations.
(1) Activities in 2013 [20] On January 7, 2013, the Commissioner received a disclosure of eight potential wrongdoings from a RCMP employee. They spanned the period from 2007/08 to then current date. A period of analysis ensued at the Commissioner’s office including review of various documents submitted by the discloser.
[21] In August 2013, the RCMP asked TC to review the operations of the ASB. In response, TC prepared an Oversight Plan outlining that they would assess where current regulations were being met, provide observations where regulatory gaps existed, and suggest best practices with a view to new aviation regulations about to come into force. The investigators never saw this document until the present proceedings.
[22] In October and November 2013, TC conducted the Oversight activities at RCMP Air Services Branch HQ and the Air Sections in Ottawa, London, Montreal, and Vancouver.
[23] On November 6, 2013, the analyst in the Commissioner’s office who reviewed the disclosure prepared a Case Analysis recommending an investigation and not pursuing three of the allegations.
[24] On November 18, 2013, the Commissioner informed the RCMP by letter that he was going to investigate allegations of wrongdoing involving an employee of the OAS and the OAS itself.
[25] On December 2, 2013, the investigators made their first contact with TC. The investigators were told TC would be issuing a report in January 2014.
(2) Activities in 2014 [26] On January 15, 2014, TC prepared their report to the RCMP entitled “Private Operator – Advisory Assessment” [Advisory Assessment]. TC made observations and recommendations including that their sampling of Journey Logs did not reveal any non-compliance. However, they were shown other Journey Logs that suggested two kinds of aircraft had been flown in overweight condition. These documents form the basis for the Commissioner’s subsequent finding. The RCMP agreed to draft Corrective Action Plans [CAPs] to implement the recommendations.
[27] On January 20, 2014, TC sent the Advisory Assessment to the investigators. On January 21, 2014, TC began follow-up and monitoring of the development by the RCMP of CAPs.
[28] On March 7, 2014, the investigators prepared the Preliminary Investigation Report [PIR]. They concluded a wrongdoing was committed under paragraph 8(a) of the PSDPA by personnel at the OAS “making false entries on AJLs and flying overweight for years”. As a result of the PIR the Commissioner determined the four allegations related to flying aircraft included several different pilots, not just one. AJLs received from TC on January 20, 2014 were used to make the finding.
[29] On March 10, 2014, the Commissioner delivered the PIR to the RCMP and advised them that the OAS, as a whole, would be named for those alleged wrongdoings rather than the individual employee.
[30] On March 14, 2014, the RCMP completed writing the CAP for document compliance to address the issue of the AJLs containing incorrect information. Expected completion date of the work was April 30, 2014.
[31] On May 22, 2014, the RCMP responded to the March 10, 2014 PIR. They stated, for the first time, that subsections 23(1) and 24(1) of the PSDPA applied and the Commissioner did not have jurisdiction because “TC has been dealing with the OAS to address any deficiencies” and “OAS is working with TC Civil Aviation Safety Inspectors to address compliance by way of Corrective Actions Plans”.
[32] On July 9, 2014, a revised PIR was sent to the RCMP as result of additional information provided by the RCMP.
[33] On July 30, 2014, the RCMP responded to the revised PIR renewing its objection to the jurisdiction of the Commissioner’s office.
[34] On September 3, 2014, an investigator made a file note of a conversation with a TC employee to the effect that “[employee] was very clear that TC did not “go in under regulation assessment mode”” and “employee at the end also reiterated that “we are not working under any regs or Act for these CAPs - it is purely voluntary””.
[35] On October 6, 2014, after internal review of the investigator’s amended report, the Commissioner accepted the recommendation that a finding of wrongdoing be made regarding one allegation and not the other four allegations.
[36] On October 14, 2014, the Commissioner delivered to the RCMP a draft of the Case Report of Wrongdoing, which was to be tabled in Parliament by December 5, 2014. He requested any comments for inclusion in the report be made no later than October 29, 2014.
[37] On October 27, 2014, the RCMP wrote to the Commissioner requesting the investigation be re-opened, renewing the jurisdictional challenge, and raising a question of procedural fairness. The RCMP’s response to the Commissioner’s recommendations was enclosed.
[38] On October 31, 2014, the Commissioner responded to the RCMP and enclosed the draft Case Report to be tabled during the week of November 17, 2014. He requested any final comments by November 6, 2014. He also enclosed a draft news release to be issued when the report was to be tabled.
[39] On November 6, 2014, the RCMP delivered the official response to the recommendations for inclusion in the report.
[40] On November 10, 2014, the Commissioner wrote to the RCMP to address certain matters not relevant to this proceeding and to reiterate why he believed subsection 23(1) did not apply as well as why he would not exercise his discretion under subsection 24(1) to discontinue the investigation.
[41] On November 14, 2014, the RCMP issued the Notice of Application in this matter.
[42] The Commissioner’s Case Report was submitted to Parliament on December 2, 2014.
III. The Two Preliminary Issues Raised by the Commissioner A. Should the Affidavit filed by the RCMP be given any Weight? (1) Positions of the Parties [43] The RCMP filed an affidavit from Sean Flatt, sworn on January 19, 2015. Mr. Flatt was the team leader for the TC Advisory Assessment. The RCMP says the affidavit has been tendered on the issue of the jurisdiction of the Commissioner. The RCMP relies generally on “cases decided under rule 306” of the Federal Courts Rules, SOR/98-106, [the “Rules”] to say that as subsection 23(1) raises a matter of jurisdiction between two tribunals they have the absolute right to submit the affidavit.
[44] The RCMP submitted at the hearing that the affidavit was tendered for two purposes, both going to the jurisdiction of TC when conducting the assessment. One was to show Mr. Flatt was not acting personally but rather as an officer of Transport Canada. The other was to show the breadth of duties set out in the Aeronautics Act and that, given those duties, TC had a broad scope and a number of ways in which they can engage with an entity.
[45] The Commissioner says I should give no weight to the affidavit because it contains information he did not have when he made his finding of wrongdoing. Noting the assertions about the capacity in which TC was conducting its Advisory Assessment and the lack of ability it had to enforce compliance with the CAPs, the Commissioner submitted at the hearing that the affidavit is simply an attempt to “bootstrap” what TC was doing by re-characterizing the voluntary, consultative process into an exercise of statutory power.
(2) Analysis and Conclusion [46] The cases under rule 306 do not assist the RCMP’s position. In Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, [Access Copyright] the Court of Appeal recognized three exceptions to the general rule that the evidentiary record on review should be the same as that before the administrative decision-maker. The exceptions are: where the affidavit provides general background to assist in understanding the issues; where it is necessary to bring procedural defects to the attention of the Court because they cannot be found in the evidentiary record; to highlight the complete absence of evidence before the decision-maker.
[47] During the course of the Commissioner’s investigation, the RCMP raised the question of jurisdiction under subsection 23(1). Anything not conveyed by the RCMP in the May 22 and July 30 letters could have been provided either at that time or before the Case Report was tabled. The affidavit cannot now improve upon the position of the RCMP as originally put to the Commissioner. As stated by Mr. Justice LeBlanc in Henri v Canada (Attorney General), 2014 FC 1141 at paragraph 21, judicial review does not “allow for an improvement of the factual matrix of the record, since that would be changing the fundamental nature of this proceeding”.
[48] With respect to the stated purpose of showing that Mr. Flatt was acting as an officer of TC, the affidavit was unnecessary as there was no allegation to the contrary. With respect to the purpose of outlining the broad duties and powers of TC, the RCMP letters of May 22 and July 30, 2014 cover those topics. The legislation itself sufficiently shows the duties and powers of the Minister. The affidavit is not necessary for that purpose. In my view, the affidavit does not fall into any of the three exceptions in Access Copyright.
[49] I will give no weight to any portions of the affidavit filed that contain information not originally given to the Commissioner. Nor will any legal arguments or conclusions of law in the affidavit be given any weight as the person who made the affidavit was not qualified to give such opinions. Where the affidavit recasts arguments made to the Commissioner by the RCMP, I will refer to the original arguments. Where the affidavit simply organizes and collects information given to the Commissioner at the time, I may refer to it as it is not new evidence.
B. Does the RCMP Have the Right to Seek Judicial Review? [50] Applications for judicial review are governed by sections 18 and 18.1 of the Federal Courts Act [FCA]. Read together these sections establish the grounds for review, the relief available, powers of the Court on review, and who can bring an application for review.
[51] Under subsection 18.1(3), the Court has jurisdiction to review a “decision, order, act or proceeding” of a “federal board, commission or other tribunal”. There is no dispute that the Commissioner was operating as a federal board, commission or other tribunal when he made his finding and tabled the Case Report in Parliament. The dispute relates to whether the RCMP was “directly affected by the matter in respect of which relief is sought” particularly given the non-binding nature of the recommendations in the Case Report. Stated another way, is this matter justiciable?
[52] The term “directly affected” has been extensively interpreted in the jurisprudence. In Air Canada v Toronto Port Authority et al, 2011 FCA 347 at paragraphs 24 and 29, [Toronto Port Authority] Mr. Justice Stratas summarizes the considerations applicable to whether a matter is reviewable. A reviewable “matter” is more than a decision, it is very broad and includes something “in respect of which a remedy may be available” under section 18 of the FCA. It also includes review of “administrative action”. What is not reviewable is a matter that “fails to affect legal rights, impose legal obligations, or cause prejudicial effects”.
(1) Positions of the Parties [53] In keeping with Toronto Port Authority, the focus of the parties is whether the finding made by the Commissioner caused the RCMP prejudicial effects. There was no argument made that the finding in the Case Report affected legal rights or imposed legal obligations. Indeed, section 26 of the PSDPA makes it clear that investigations are conducted informally and the purpose of an investigation is to bring wrongdoings to the attention of the Chief Executive and make recommendations about corrective measures. There is no provision in the PSDPA that requires a Chief Executive to follow any recommendations.
[54] The RCMP says that as it is Canada’s national police force the finding of wrongdoing by the OAS is very important to both the members of the RCMP and the OAS members. The reputation of the RCMP is affected by such finding. The very public aspect of the Case Report being tabled in Parliament is also an important factor. The RCMP relies on the decision in Morneault v Canada (Attorney General), [2001] 1 FCR 30 (FCA), [Morneault] to say that when there is an impact on reputation even a non-binding a matter is reviewable under subsection 18.1(1).
[55] The Commissioner counters that before the Case Report was sent to Parliament the RCMP sought, but was denied, an injunction prohibiting such submission. At that time, Mr. Justice Hughes of this Court found any damage to the reputation of the RCMP was purely speculative. As of the date of the hearing, no evidence of damage to their reputation has been submitted by the RCMP. The Commissioner says that, in any event, the RCMP has admitted regulations were contravened and accepted the recommendations of the Commissioner made in the Case Report. He too relies upon Morneault, where at paragraph 45 the Court of Appeal said:
[45] If the findings in issue are supported by some evidence, the respondent could not really complain that the findings may have harmed his reputation. . . .
[56] Finally, the Commissioner says only the discloser is given status in the PSDPA as being directly affected. Neither the wrongdoer nor the CEO is given such status. The only remedy provided in the PSDPA is that the CEO of the RCMP may make a response in the Case Report if he disagrees with the Commissioner, as was done here.
(2) Analysis and Conclusion [57] The balance of paragraph 45 in Morneault, cited in part by the Commissioner, contains a critical finding by the Court of Appeal. Although the report in that case was also a non-binding opinion and not strictly a decision or order, the Court of Appeal determined that serious harm might be caused to Col. Morneault’s reputation by findings that lacked support in the record. The court’s review was determined to be a necessary part of being able to ensure that natural justice was done and no unjustified harm was caused to Col. Morneault’s reputation.
[58] The only part of the finding with which the RCMP agrees is that making incorrect entries in the AJLs contravene the regulations. The record in this matter shows such contraventions are strict liability offences that require no degree of intention or negligence on the part of the perpetrator. The record also shows that TC, operating under a different legislative scheme, did not view the regulatory contraventions as seriously as the Commissioner. An August 18, 2014 email from TC to the investigators concluded with the statement “[d]welling on a punitive response to past non-compliance issues serves no further purpose other than to disrupt ongoing positive efforts.”
[59] The RCMP response in the Case Report took issue with the Commissioner’s use of the word “false” to characterize the AJL entries because it implied a deliberate deception or malfeasance. They also took issue with whether the AJLs alone could show an aircraft was flown overweight given various other factors that they list and say affects that determination. They agreed with the technical non-compliance but not the conclusion of aircraft being flown overweight.
[60] I am satisfied the RCMP have not accepted the finding in the Case Report to the extent submitted by the Commissioner. In this case, the degree of “acceptance” is not sufficient in and of itself to avoid judicial review.
[61] The RCMP seeks relief under paragraph 18.1(4)(a) of the FCA alleging the Commissioner acted without jurisdiction. In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [Khosa] Mr. Justice Binnie at paragraph 41 found that subsection 18.1(4) “enable[s] but do[es] not require judicial intervention.” In other words, I may exercise my discretion in determining whether to hear this application for judicial review.
[62] In the circumstances of this case, given the high profile of the RCMP as Canada’s national police force, the involvement of another regulatory authority, the lack of review provisions in the PSDPA, and the absence of jurisprudence under subsection 23(1) as well as the basis of the RCMP’s arguments in this matter, I find it is appropriate to exercise my discretion and allow the judicial review to proceed in order to determine whether the Commissioner’s interpretation of subsections 23(1) and 24(1) of the PSDPA was reasonable.
IV. Standard of Review of the Interpretation of ss 23(1) and 24(1) by the Commissioner [63] The parties do not agree upon the standard of review. As previously stated, I have determined reasonableness is the standard of review for the Commissioner’s interpretations of the PSDPA. The detailed explanation for that decision follows.
A. Standard of Review of the Interpretation of Subsection 23(1) (1) Positions of the Parties [64] The different perspectives of the RCMP and the Commissioner raise the question of the appropriate standard of review for the Commissioner’s interpretation of subsection 23(1). The RCMP says the standard is correctness. The Commissioner says the standard is reasonableness.
[65] The RCMP submits the issue of whether subsection 23(1) prohibited the Commissioner from investigating in light of the involvement of TC raises a true question of jurisdiction or vires, therefore attracting a correctness standard of review. In support they cite an extract from Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 59 [Dunsmuir] to the effect that true jurisdiction questions involve the determination by a tribunal of whether they had “the authority to decide a matter” considering the statutory power given to the tribunal.
[66] In oral argument, the RCMP stated that it is not a matter of competing jurisdiction by two tribunals but rather a question of when each of them can exercise their authority. They submit however that the standard is still correctness but, should I find it to be reasonableness then, in any event, there is only one reasonable interpretation of the legislation and it is not the one applied by the Commissioner.
[67] The RCMP also referred to Canadian Union of Public Employees, Local 2434 v Port Hawkesbury (Town), 2011 NSCA 28, [Port Hawkesbury] in which the Nova Scotia Court of Appeal discussed the principles of jurisdictional review they drew from Dunsmuir. In that case, the court determined the standard of review for the underlying decision by the Occupational Health and Safety Panel was correctness even in the face of a privative clause in the legislation.
[68] The Commissioner says that there is no question of jurisdiction; it was simply a matter of determining whether TC was dealing with the subject matter under an Act of Parliament. To make that determination required considering a question of mixed fact and law in deciding whether subsection 23(1) applied to prevent him from investigating the disclosures. The Commissioner states that this is a question of mixed fact and law reviewable on the standard of reasonableness.
[69] The Commissioner relies upon Alberta Teachers’, and McLean v British Columbia (Securities Commission), 2013 SCC 67, [McLean] to say that because the Commissioner is interpreting his “home” statute there is a presumption of deference and that entails a standard of review of reasonableness.
(2) Analysis and Conclusion [70] I note that Port Hawkesbury, upon which the RCMP relies, was argued and decided prior to the release of Alberta Teachers’ so it did not consider whether the presumption of reasonableness had been rebutted because no such presumption existed at that time.
[71] The interpretation by the Commissioner of subsection 23(1) required consideration of whether the activities undertaken by TC vis-à-vis the RCMP fell within subsection 23(1). To make that determination requires an application of the facts (what was undertaken by TC) to the law set out in subsection 23(1). A question of mixed fact and law attracts the standard of review of reasonableness, provided there is no extricable legal principle or error of law, see Khosa at paragraph 89 and Imperial Manufacturing Group Inc v Decor Grates Incorporated, 2015 FCA 100 at paragraph 19.
[72] In arriving at this conclusion I am mindful of the admonition in Dunsmuir, also found at paragraph 59, that “reviewing judges must not brand as jurisdictional issues that are doubtfully so” as well as the observation made by Madam Justice Abella in Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15 at paragraph 89, that:
If every provision of a tribunal’s enabling legislation were treated as if it had jurisdictional consequences that permitted a court to substitute its own view of the correct interpretation, a tribunal’s role would be effectively reduced to fact-finding.
[73] I find the presumption in Alberta Teachers’ has not been rebutted by the RCMP. The standard of review is reasonableness with respect to the Commissioner’s interpretation of subsection 23(1) that he was not prohibited from investigating the disclosure.
B. Standard of Review of the Interpretation of Subsection 24(1) [74] With respect to the Commissioner’s interpretation of section 24 of the PSDPA, the standard of review has already been determined by the Court of Appeal in Agnaou v Canada (Attorney General), 2015 FCA 30 at paragraph 35, [Agnaou #1] to be reasonableness.
[75] The RCMP does not dispute and I agree that reasonableness is the appropriate standard of review of the Commissioner’s application of subsection 24(1).
V. Was the Interpretation of subsection 23(1) Reasonable? [76] The interpretation of subsection 23(1) of the PSDPA is at the heart of the differences between the parties. The RCMP believes it is to be broadly interpreted and that in doing so I will find the TC review and Advisory Assessment was sufficient to oust the jurisdiction of the Commissioner. The Commissioner says the activities of TC do not meet the test for either “dealing with” or “subject matter” and, in any event, TC was not “acting under another Act of Parliament” as required by the subsection 23(1).
A. General Principles of Statutory Interpretation [77] The parties have dissected the various words found in subsection 23(1) and in particular the discrete phrases “dealing with”, “subject matter”, and “under another Act of Parliament”. I will turn to those submissions shortly. First it is important to note the starting point for interpreting legislation, established by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at paragraph 21, [Rizzo], is that the words being considered are to be “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act”. This means “[a] court must consider the total context of the provision to be interpreted “no matter how plain the disposition may seem upon initial reading””, see Canada (Attorney General) v Stanford, 2014 FCA 234 at paragraph 44.
(1) The Scheme and Object of the PSDPA [78] The PSDPA is whistleblower legislation designed to enable federal government employees to bring to light wrongdoings in the public sector without fear of reprisal. The provisions in the PSDPA purport to “achieve an appropriate balance” between the two important principles of loyalty to one’s employer and the right to freedom of expression.
[79] The scheme of the PSDPA underscores the importance of an ethical public sector. Mr. Justice Diner in Swarath v Canada (Attorney General), 2015 FC 963 at paragraph 1, found the PSDPA is “designed to ensure that Canadians are protected by a lawful, transparent and uncorrupted public service”.
[80] The preamble speaks of the federal public administration as being “part of the essential framework of Canadian parliamentary democracy”. It also states that “confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings”. To protect these values public access to findings of wrongdoing, whether resulting from an internal process or from an investigation by the Commissioner, is mandatory.
[81] The Commissioner has an explicit duty to review investigations and report his findings to the discloser and to the responsible chief executive. When wrongdoing has been found the Commissioner is required to table a report in Parliament. There is no duty to table reports with respect to matters not found to constitute wrongdoing. This distinction reinforces the high value Parliament has placed on making wrongdoings public.
[82] The Commissioner reports directly to Parliament by filing both an Annual Report of the activity of his office and a Case Report whenever there is a finding of wrongdoing. This underscores the importance of the Commissioner’s work and the public interest that wrongdoings be publicly exposed in keeping with the values expressed in the preamble.
[83] The Court of Appeal in Agnaou v Canada (Attorney General), 2015 FCA 29 at paragraph 60, [Agnaou #2] described the purpose of the PSDPA as being:
. . . . to denounce and punish wrongdoings in the public sector and, ultimately, build public confidence in the integrity of federal public servants. The public interest comes first, and it is the Commissioner’s responsibility to protect it.
[84] It is with this scheme and these objects in mind that subsections 23(1) and 24(1) are to be interpreted.
B. Positions of the Parties (1) “Dealing with” and “Subject-matter” (a) The Position of the RCMP [85] The RCMP submits subsection 23(1) exists to avoid duplication of effort. They say the Commissioner acknowledged that TC was dealing with the subject matter of the disclosure in his letters of July 9, 2014 and October 14, 2014 as well as at page 10 of the Case Report. They stress there was overlapping subject matter being dealt with by TC including the one allegation of wrongdoing that the Commissioner substantiated: aircraft were being flown overweight in contravention of CAR paragraph 602.07(a). As such, internal RCMP resources were involved with two parallel processes contrary to the intention of subsection 23(1).
[86] The RCMP urges a broad interpretation of subsection 23(1) saying it casts a wide net and is written in very broad in general terms. They submit the phrase “dealing with” has a very broad and general ordinary meaning. The ordinary meaning of “dealing with” is the one that is “the reader’s first impression meaning, the understanding that spontaneously comes to mind”, see Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis Canada, 2008) at pages 25-26. They refer to various dictionary definitions to say that “to deal with” includes “to act in regard to, administer, handle, dispose in any way of (a thing).”
[87] Counsel for the RCMP submitted that when TC was asked by the RCMP to assess whether their operations were in regulatory compliance and subsequently when TC reviewed the CAPs designed by the RCMP, TC was clearly “dealing with” the matter in the ordinary meaning of the expression.
[88] In an annex enclosed with their letter of July 30, 2014 to the Commissioner, the RCMP says their position is that the use of CAPs is authorized by section 4.2 of the Aeronautics Act, to ensure compliance with the CARs. That shows “the subject matter of the alleged wrongdoing is being dealt with administratively by the Minister of Transport”. They go on to say “the law enforcement authorities set out in the Aeronautics Act have not been engaged” noting that is an important distinction. Subsection 23(1) contemplates a wrongdoing investigation may proceed in parallel with a law enforcement proceeding. The RCMP concludes that subsection 23(1) bars “parallel administrative proceedings dealing with the same subject matter as the alleged disclosure.”
[89] The RCMP submits that the voluntary nature of the arrangement between the RCMP and TC is an irrelevant fact because subsection 23(1) is not limited in any way. Therefore, “dealing with” does not include any “consideration of the adequacy of the manner in which another body is dealing with the subject matter” nor is there any limitation on it other than any “dealing with” must be done under another Act of Parliament.
[90] Finally, the RCMP contrasts subsection 23(1) with paragraph 24(1)(a) to note that in paragraph 24(1)(a) the phrase “dealing with” is qualified in that the Commissioner is to form an opinion of whether the subject matter has been adequately dealt with or could more appropriately be dealt with under another Act of Parliament but there is no such guidance or qualification in subsection 23(1). The RCMP says this means once another body is dealing with the subject matter the Commissioner may not deal with it. Applying the expression unius est exclusion alterius, the RCMP says under subsection 23(1) it does not matter how effectively or adequately the other body is dealing with the subject matter because, unlike section 24, Parliament did not give the Commissioner any discretion in subsection 23(1). As a result, he has no right to subjectively evaluate how the other body deals with the subject matter.
(b) The Position of the Commissioner [91] The Commissioner submits that in light of the important objects of the PSDPA to maintain and enhance public confidence in the integrity of public servants and the requirement that a finding of wrongdoing be reported to Parliament, the limitation found in subsection 23(1) must be read narrowly. He urges it should only apply in the clearest of cases. In support he points to the sections of the PSDPA that require him to receive and investigate disclosures and give him broad discretion to initiate an investigation.
[92] The Commissioner says simply possessing an authority is not enough, there is a threshold of activity that must be met. He refers to the French wording of subsection 23(1) [“saisi de l’objet de celle-ci”] to submit that for subsection 23(1) to apply, TC has to be specifically seized of the matter in an administrative proceeding that is intended to dispose of or finally determine the precise matter or allegation, with binding effect. The voluntary, consultative process conducted by TC does not meet that requirement.
[93] The Commissioner says TC was not dealing with the subject matter of the disclosure and was not proceeding under another Act of Parliament. The RCMP voluntarily invited TC to review all their ASB operations as a consultant. The objective was to identify where regulatory gaps exist and to suggest best practices with a view to proposed new aviation regulations. Whereas the Commissioner was looking backward at behaviour during 2003 to 2012, TC was largely looking forward to future regulation and looked backward fewer than 12 months.
[94] The Commissioner says TC did not deal with the “subject matter of the disclosure” because, although they dealt with similar matters, subsection 23(1) requires that TC be dealing with the specific questions raised by the disclosure. Otherwise, meritorious disclosures may not be dealt with and the object of the PSDPA to bring wrongdoing to light would be circumvented by a body looking at different matters. As an example, they cite the TC focus as being to facilitate current and future compliance with the regulations but not to expose past wrongdoings or hold the RCMP to account. The Commissioner alleges the Advisory Assessment was completely different in approach and focus. It was an internal “eyes-only” review conducted at the request of the RCMP to provide technical advice and make recommendations for future compliance that could have been cancelled at any time by the RCMP.
[95] Regarding the argument that subsection 23(1) is to be read to “avoid duplication”, the Commissioner points out that when a law enforcement agency is involved overlapping investigations are expressly authorized by subsection 23(1) thus avoiding duplication was not a legislative concern.
[96] Finally, the Commissioner raises the concern that if the RCMP is correct, any federal department could conduct a general, non-binding review with the result that it would pre-empt the accountability provisions of the PSDPA.
(2) “Under Another Act of Parliament” (a) The Position of the RCMP [97] Even though the RCMP invited TC to assess its operations, they state that given the provisions of the Aeronautics Act, TC can monitor legislative compliance at any time. As support, they point to the words in section 4.2, “[t]he Minister is responsible for the devel