Agnaou v. Canada (Public Prosecution Service)

Agnaou v. Canada (Public Prosecution Service)
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-07-29
Neutral citation
2022 FCA 140
File numbers
A-461-19
Decision Content
Date: 20220729
Docket: A-461-19
Citation: 2022 FCA 140
[ENGLISH TRANSLATION]
CORAM:
BOIVIN J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
YACINE AGNAOU
Applicant
and
PUBLIC PROSECUTION SERVICE OF CANADA
BRIAN SAUNDERS
GEORGES DOLHAI
ANDRÉ A. MORIN
DENIS DESHARNAIS
PUBLIC SECTOR INTEGRITY COMMISSIONER
Respondents
Heard at Montréal, Quebec, on May 4, 2022.
Judgment delivered at Ottawa, Ontario, on July 29, 2022.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
BOIVIN J.A.
LEBLANC J.A.
Date: 20220729
Docket: A-461-19
Citation: 2022 FCA 140
CORAM:
BOIVIN J.A.
DE MONTIGNY J.A.
LEBLANC J.A.
BETWEEN:
YACINE AGNAOU
Applicant
and
PUBLIC PROSECUTION SERVICE OF CANADA
BRIAN SAUNDERS
GEORGES DOLHAI
ANDRÉ A. MORIN
DENIS DESHARNAIS
PUBLIC SECTOR INTEGRITY COMMISSIONER
Respondents
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] This application for judicial review is the culmination of a long saga involving the applicant and certain managers at the Public Prosecution Service of Canada. It stems more directly from a decision of the Federal Court (Agnaou v. Attorney General of Canada, 2017 FC 338) ordering the Public Sector Integrity Commissioner (the Commissioner) to apply to the Public Servants Disclosure Protection Tribunal (the Tribunal) in order to request that it hear the applicant’s reprisal complaint, pursuant to subsection 20.4(1) of the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (the Act).
[2] At the end of a 19-day hearing during which some 30 witnesses were heard, the Tribunal found that Mr. Agnaou had not shown, on a balance of probabilities, that he had made a protected disclosure under section 12 of the Act in April 2009, or that the fact that he was not appointed to a higher-level position constituted a reprisal within the meaning of the Act.
[3] After having carefully reviewed the file and the parties’ written and oral submissions, I am of the opinion that the application for judicial review should be dismissed.
I. The facts [4] The facts that gave rise to this dispute have been repeated many times in the numerous decisions rendered by this Court and by the Federal Court following the disclosure of wrongdoings made to the Commissioner on October 13, 2011. The Tribunal also conducted an exhaustive review of the evidence that was submitted before it and included a detailed summary of this evidence in its decision; that summary was more than 50 paragraphs long. I do not intend to repeat that exercise and will therefore confine myself to the most relevant aspects for the purpose of deciding the issues before us. The following summary is based primarily on the findings of fact made by the Tribunal.
[5] I am aware that the applicant is challenging several of these findings, and for that matter, he spent a great deal of time during his oral argument trying to show us that the Tribunal had erred in its interpretation of the evidence. However, this Court’s role is not to retry the case and carry out its own assessment of the evidence, unless it can be demonstrated that there are palpable errors or fundamental flaws. It is thus from this perspective that the following narrative should be read. In my analysis of the issues, I will review the main points of disagreement between the applicant and the Tribunal in light of the evidence.
[6] Mr. Agnaou is a lawyer and a member of the Barreau du Québec. He joined the Prosecution Service’s economic crimes team in 2003 as a federal Crown prosecutor. He then became a member of the Public Prosecution Service of Canada (PPSC), also within the Quebec Regional Office (QRO).
[7] In January 2006, the Canada Revenue Agency (CRA) submitted an investigation report to the PPSC recommending that proceedings be instituted against a company that had failed to respond to its requirements for information. Mr. Agnaou was assigned the file and had to determine whether criminal charges should be laid. He quickly came to the conclusion that proceedings should indeed be instituted, but his supervisors and experienced counsel expressed reservations in this regard and considered that it would be premature to proceed. At the time that this disagreement occurred, it seems that the relationship between Mr. Agnaou and his supervisors had deteriorated for various reasons, in particular because of his behaviour in the workplace.
[8] After his supervisors determined that proceedings should not be instituted, Mr. Agnaou contacted the Chief Federal Prosecutor at the QRO, André Morin, one of the respondents in these proceedings, directly and informed him of the impasse at which he found himself following his disagreement with his managers. He also asked to be assigned to another manager, which Mr. Morin accepted.
[9] Given the ongoing disagreement between Mr. Agnaou and his managers, the QRO’s general counsel committee was asked to provide a recommendation on the advisability of instituting proceedings in the case. Following a meeting held on March 9, 2009, to which Mr. Agnaou was not invited, the committee recommended that no proceedings be instituted. Mr. Agnaou’s manager informed him of this decision on March 23, 2009. During a meeting with his managers the next day, he received a memorandum from Mr. Morin documenting the decision not to institute proceedings and asking him to close the file. On the same day, Mr. Agnaou sent Mr. Morin a long memorandum asking him to reconsider his decision and stating the reasons for which he considered that proceedings should be instituted.
[10] After receiving confirmation from Mr. Morin on April 1, 2009 that his decision remained unchanged, Mr. Agnaou sent the following email to his supervisor:
[translation]
Moreover, as I told you, I cannot, in good conscience, not submit this case to the Director of Public Prosecutions. It is clear that QRO management had already decided in the fall of 2008 (if not immediately after the Department of Justice’s intervention in September 2007) to find a way to close the file. The arguments submitted at the November 4, 2008 and February 24, 2009 meetings, and in the March 9, 2009 minutes, are almost identical.
I contend that the consultation of the general counsel committee was intended to provide “credibility” to a decision made outside the usual procedure set out in Chapter 15 of the FPS Deskbook. I also contend that today’s meeting was never intended to allow the Chief Prosecutor to reconsider his decision, which was probably discussed by QRO management before the final version of the prosecution report was received (January 2009). These forums were not established as a means to truly debate facts of this case. The factual errors in the general counsel committee’s minutes and the lack of familiarity with the prosecution report that I noted among QRO management members speak volumes about the reasons for its intervention in this case.
Therefore, could you please explain how I should bring this case to the attention of the Director of Public Prosecutions? I could send to the contact person that you will provide my attached statement of the facts, as well as its appendices (which André did not read before confirming his decision) and the complete prosecution report.
[11] After being informed that the CRA had been notified of the decision not to institute proceedings, Mr. Agnaou sent his manager a second email on April 2, 2009, with a copy to Mr. Morin and a general counsel:
[translation]
Given that the external stakeholders have already been notified of our Chief Prosecutor’s decision, I can only reassess the timeliness of my efforts to persuade the Director of Public Prosecutions that this decision was made contrary to our organization’s policies and is harmful to the public interest.
In the coming weeks, I will focus on my active files and think about what actions to take in this serious matter. My decisions will be defined by my responsibilities as a Crown prosecutor as set out in our Acts and policies. If necessary, our Chief Prosecutor will be informed by the competent authorities.
[12] As part of the reprisal complaint that he submitted to the Office of the Commissioner in January 2013, Mr. Agnaou identified these two emails as protected disclosures of wrongdoing under section 12 of the Act.
[13] On April 3, 2009, Mr. Morin recommended to Mr. Agnaou that he take time off and consult his doctor regarding his ability to work. On that day, Mr. Agnaou filed three grievances, four harassment complaints and one complaint under section 127.1 of the Canada Labour Code, R.S.C. 1985, c. L-2. In February 2009, he had also filed a complaint with the Public Service Staffing Tribunal contesting the results of a selection process launched by the QRO. It was clear that the relationship of trust between Mr. Agnaou and his supervisors was now broken. Nevertheless, Mr. Agnaou returned to the office on June 2 after he received a fit-to-work certificate from his doctor and the Health Canada doctor.
[14] In May and June 2009, Mr. Agnaou contacted the Office of the Commissioner anonymously to enquire about what could constitute a case of gross mismanagement and about how the Office of the Commissioner operates. Then, in a second message, he identified himself and provided to the Office of the Commissioner the facts related to the CRA file, indicating that he was thinking about making a formal disclosure of wrongdoing.
[15] In June 2009, during a mediation session regarding the complaint that he had filed with the Staffing Tribunal, Mr. Agnaou negotiated an agreement with the Deputy Director of the PPSC, George Dolhai. In this memorandum of understanding signed on June 26, 2009, the PPSC granted Mr. Agnaou an 18‑month leave of absence with full pay, followed by educational leave without pay but with full allowance for one year, at the end of which the Public Service Commission would consider him a priority for one year. In return, Mr. Agnaou agreed to withdraw all of his complaints and grievances, leave the PPSC, and vacate his office no later than July 3, 2009. He also agreed not to return to his office during or after the leave or during the period when the Public Service Commission would consider him a priority. A few days after he left the PPSC, the applicant learned that he had qualified in a pool of candidates created during a selection process for positions at the LA-2B level.
[16] On October 13, 2011, Mr. Agnaou sent the Integrity Commissioner a letter to which he attached a disclosure of wrongdoing form and 86 appendices. His form stated that the wrongdoing constituted gross mismanagement in the public sector, as provided for in paragraph 8(c) of the Act, and that said wrongdoing had been reported to a supervisor or a colleague. Mr. Agnaou also indicated that he had reported the wrongdoing to the Office of the Commissioner on May 25, 2009.
[17] In his letter of allegations, Mr. Agnaou identified three QRO managers, including Mr. Morin, as the perpetrators of the wrongdoings that he claims occurred, adding that they were probably not the main instigators. However, the April 1 and 2, 2009 emails are not reproduced in his letter, and neither his letter nor the disclosure form refers to those emails as disclosures of wrongdoing. It was not until January 2013, in response to questions from an analyst with the Office of the Commissioner as part of the review of his complaint, that he made this claim.
[18] The Commissioner having recused himself because he knew some of the people mentioned in Mr. Agnaou’s letter, in particular the Director of the PPSC, Brian Saunders, the Deputy Commissioner took charge of the file. On September 6, 2012, the Deputy Commissioner decided not to investigate Mr. Agnaou’s disclosure; relying on paragraphs 24(1)(e) and (f) of the Act, he found that the subject-matter of the disclosure related to a matter that resulted from a balanced and informed decision-making process that did not suggest any wrongdoing.
[19] On October 1, 2012, Mr. Agnaou filed an application for judicial review of that decision. The Federal Court dismissed his application on January 27, 2014 (Agnaou v. Canada (Attorney General), 2014 FC 86). This Court dismissed the appeal from that decision on February 2, 2015 (Agnaou v. Canada (Attorney General), 2015 FCA 30). The Court was of the opinion that the trial judge could find that the Commissioner’s decision was reasonable given the existence of an honest difference of opinion between an employee and his supervisors, and the discretion conferred on the Commissioner under section 24 of the Act.
[20] As these events were unfolding, the PPSC had been facing pressure from two counsel since the spring of 2011, if not earlier. They considered that they were performing duties above their current positions. Mr. Dolhai initially attempted to address their concerns by eliminating the LA-2A positions that they held and replacing them with two LA-2B positions. When he received authorization to proceed, he used the pool for the selection process in which these two counsel had qualified to propose that they be appointed to these two positions.
[21] Informed of these developments, Mr. Agnaou notified the Public Service Commission (PSC) and asserted his priority entitlement. Surprised to learn that Mr. Agnaou wanted to claim his priority entitlement even though he had agreed never to return to the PPSC, a decision was made to abandon the appointment process and to proceed by reclassifying the positions held by the two counsel. It must be said that the PSC had informed the PPSC that the memorandum of understanding clause under which Mr. Agnaou had agreed not to return to the PPSC was not binding because his priority entitlement was provided for by the legislation and could not be overridden by an agreement.
[22] When informed that the PPSC had abandoned the appointment process and had decided to reclassify the positions instead, Mr. Agnaou objected. On August 31, 2012, he wrote to his director, Mr. Saunders, asking him to state the reasons for which the Service had proceeded as it had. The PPSC Director General of Human Resources, Denis Desharnais, replied to him on September 10, 2012, indicating that it was more appropriate to reclassify the positions under the circumstances and that such an action did not require consideration of priority entitlements. He also assured him that his priority entitlements were not affected. According to Mr. Agnaou, it is this letter that constituted the alleged reprisal.
[23] Following this reply, Mr. Agnaou contacted the PSC on September 17, 2012, to express his dissatisfaction. The Vice-President of the Commission’s policy branch provided him with an answer on October 19, 2012, stating that the PPSC, not the Commission, was authorized to make the decision and that the Commission had nevertheless discussed the matter with the Service to ensure that the decision had not been made in order to skirt Mr. Agnaou’s priority entitlement. Mr. Agnaou subsequently requested that an investigation be conducted. This request was denied on December 31, 2012, on the grounds that the Commission had no jurisdiction over internal appointment processes. The applicant did not challenge this decision or the PPSC’s decision to reclassify the positions.
[24] On January 7, 2013, Mr. Agnaou filed a reprisal complaint with the Office of the Commissioner, in which he alleged that the individual respondents had retaliated against him by refusing to appoint him to an LA-2B position on the grounds that he had filed a disclosure of wrongdoings with the Commissioner in 2011. He specifically referred to Mr. Desharnais’s September 10, 2012 letter confirming the PPSC’s decision to proceed with the reclassification of the two counsel’s positions.
[25] On February 12, 2013, the Deputy Commissioner refused to deal with the reprisal complaint, considering it inadmissible under paragraph 19.3(1)(c) of the Act. He found that the reclassifications could constitute a reprisal within the meaning of the Act, such that the first condition to be met before the Commissioner could investigate was satisfied. However, he was of the opinion that the April 2, 2009 email could not constitute an internal disclosure within the meaning of the Act, insofar as it contained [translation] “no mention of disclosure, of wrongdoings as defined in section 8 of the Act, of the Act or any agency whatsoever”. Moreover, the chief executive concerned—the PPSC—was never informed about the disclosure to the Office of the Commissioner because no investigation was initiated in relation to this disclosure under subsection 27(1) of the Act. As Mr. Agnaou was unable to show how his managers might have learned of the disclosure, the reprisal could not have arisen from the existence of a protected disclosure, and the second condition to be met before the Commissioner could deal with a complaint was not fulfilled.
[26] The Federal Court dismissed the application for judicial review that Mr. Agnaou filed against this decision (Agnaou v. Canada (Attorney General), 2014 FC 87), but this Court allowed the appeal from that judgment: Agnaou v. Canada (Attorney General), 2015 FCA 29 [Agnaou FCA 2015]. After a lengthy analysis, Madam Justice Gauthier (writing for a unanimous panel) determined that the Commissioner could not reasonably find that it was plain and obvious that the emails mentioned by Mr. Agnaou could not constitute an internal disclosure within the meaning of section 12 of the Act. As a remedy, this Court declared the complaint admissible and referred it back to the Commissioner to be dealt with appropriately.
[27] The Commissioner therefore conducted his investigation, following which he dismissed the complaint because there were no reasonable grounds to believe that reprisals had been taken against Mr. Agnaou. Given the terms of the memorandum of understanding, the Commissioner stated that he had no reasonable grounds to believe that the failure to appoint Mr. Agnaou to the sought‑after position was related to his alleged disclosure. He therefore dismissed the complaint under section 20.5 of the Act. Mr. Agnaou filed a new application for judicial review of this decision by the Commissioner; this application was allowed by the Federal Court on March 31, 2017: Agnaou v. Canada (Attorney General), 2017 FC 338. This time, the Court ordered the Commissioner to apply to the Tribunal to deal with the complaint and determine whether a reprisal had been taken against him, in accordance with subsection 20.4(1) of the Act. The Commissioner did just that on July 18, 2017.
II. The impugned decision [28] Even before the hearing was held, the Tribunal rendered three interlocutory decisions, two of which have been challenged by the applicant. In the first decision, rendered on November 13, 2018 (Agnaou v. Public Prosecution Service of Canada et al., 2018 PSDPT 2 [Agnaou 1]), the Tribunal had to rule on a motion for disclosure of documents filed by the applicant. On the basis of the case law, the Tribunal determined that a motion for disclosure of documents must be relevant to the case, that it must not be vague or amount to a fishing expedition, and that the documents requested must be described with reasonable precision.
[29] With respect to the first category of documents requested, all of which related to the decision not to institute criminal proceedings, the Tribunal had no difficulty in finding that these documents were not relevant because whether the respondents had committed any wrongdoing was not at issue before it. The Tribunal’s authority and jurisdiction are in effect dependent on the scope of the Commissioner’s notice of application: El‑Helou v. Courts Administration Service, 2011 PSDPT 1 [El‑Helou 1].
[30] As for the other categories of documents sought, the Tribunal established that these had to be described in a reasonably precise manner so that the request did not amount to a fishing expedition: Turner v. Canada Border Services Agency, 2018 CHRT 9. In the current matter, the Tribunal held that the applicant did not describe or identify in any way the documents that he was seeking to have disclosed; he limited himself to setting out categories of documents without providing any details that would make it possible to conclude that they even existed. The Tribunal therefore dismissed the applicant’s motion, stating that it was of the view that it amounted to a fishing expedition.
[31] In its second interlocutory decision, which it rendered on May 6, 2019 (Agnaou v. Public Prosecution Service of Canada et al., 2019 PSDPT 2 [Agnaou 2]), the Tribunal had to rule on motions filed by all the respondents to reduce the applicant’s list of 55 witnesses. Before ruling on these motions, the Tribunal pointed out that it was master of its own procedure and that it was up to the Tribunal to reduce the number of individuals called to testify in order to observe the principle of proportionality, while ensuring that it complied with the principles of procedural fairness and allowed the complainant to present his or her case. That said, an applicant cannot embark on a fishing expedition and must establish that the witnesses for whom he or she intends to seek a subpoena are likely to provide relevant and non-repetitive evidence.
[32] Applying these principles, the Tribunal granted the respondents’ motions in part. As in its first interlocutory decision, the Tribunal determined that the witnesses related to the case in which the applicant sought to lay criminal charges were not relevant given that the Tribunal did not have to determine whether a wrongdoing had been committed. Similarly, the Tribunal also removed from the applicant’s list of witnesses the witnesses related to his harassment complaints, his access to information requests, and the manner in which the Commissioner conducted investigations and dealt with complaints, on the grounds that these issues were not relevant to the dispute. The Tribunal also excluded other potential witnesses requested by Mr. Agnaou because their announced testimony constituted a fishing expedition.
[33] Lastly, the Tribunal removed the PPSC’s former departmental counsel from Mr. Agnaou’s list of witnesses. The Tribunal found that the applicant had not established that communications between the PPSC and the PSC in which this witness was allegedly involved would not affect solicitor-client privilege.
[34] On November 13, 2019, the Tribunal (Madam Justice St-Louis) dismissed the complaint on the merits: Agnaou v. Public Prosecution Service of Canada et al., 2019 PSDPT 3 [Agnaou 3]. Having determined that it derived jurisdiction from the Commissioner’s notice under subsection 20.4(1) of the Act, the Tribunal found that: (1) only the April 1 and April 2, 2009 emails could be considered internal disclosures; (2) only the communication to the Commissioner dated October 13, 2011 could be considered an external disclosure; and (3) the alleged reprisal measure was the reclassification of the two LA-2B positions to avoid appointing Mr. Agnaou to one of these two positions despite his priority entitlement.
[35] On the basis of previous case law and the definition of the term “reprisals” that is set out in subsection 2(1) of the Act, the Tribunal then ruled on the burden and standard of proof. According to the Tribunal, it was for the complainant to demonstrate, on a balance of probabilities, that: (1) he or she made a protected disclosure within the meaning of the Act; (2) he or she was the subject of one of the measures listed in the definition of “reprisal” under the Act; and (3) the measure was taken against him or her because he or she made a protected disclosure. In so doing, the Tribunal rejected Mr. Agnaou’s argument that the complainant’s burden of proof should be reduced so as not to undermine the effectiveness of the public servants disclosure protection system.
[36] With respect to the first element, the Tribunal agreed with the parties that the communication to the Commissioner on October 13, 2011 constituted a protected disclosure under section 13 of the Act, the first subsection of which reads as follows:
Disclosure to the Commissioner
Divulgation au commissaire
A public servant may disclose information referred to in section 12 to the Commissioner.
Le fonctionnaire peut faire une divulgation en communiquant au commissaire tout renseignement visé à l’article 12.
[37] However, the Tribunal found that the April 1 and 2, 2009 emails did not constitute an internal disclosure within the meaning of section 12 of the Act, which states:
Disclosure to supervisor or senior officer
Divulgation au supérieur hiérarchique ou à l’agent supérieur
A public servant may disclose to his or her supervisor or to the senior officer designated for the purpose by the chief executive of the portion of the public sector in which the public servant is employed any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing.
Le fonctionnaire peut faire une divulgation en communiquant à son supérieur hiérarchique ou à l’agent supérieur désigné par l’administrateur général de l’élément du secteur public dont il fait partie tout renseignement qui, selon lui, peut démontrer qu’un acte répréhensible a été commis ou est sur le point de l’être, ou qu’il lui a été demandé de commettre un tel acte.
[38] After considering the purpose of the Act and the broad and liberal interpretation that it should be given, as well as the dictionary definitions of the terms “disclosure” and “disclose”, the Tribunal was of the opinion that, for a public servant, the purpose of a disclosure is to denounce an act that undermines the integrity of the public service (at para. 104). The Tribunal was also of the view that a disclosure should “communicate any information that could objectively demonstrate that a wrongdoing has been or is about to be committed” (at para. 106). The Tribunal noted that the recipients of the emails sent by Mr. Agnaou were indeed his supervisors and that this Court had determined in its 2015 decision that the information provided in his April 1 and 2, 2009 emails could refer to a case of gross mismanagement.
[39] However, on the basis of the evidence, the Tribunal determined that the supervisors to whom the emails were sent were unaware that these communications constituted a disclosure and they instead believed that Mr. Agnaou was signalling his intention to continue the debate internally (at paras. 107–108). Once again relying on the evidence in the record, the Tribunal also held that Mr. Agnaou had not shown, on a balance of probabilities, that he himself had intended to disclose a wrongdoing under the Act when he sent his emails (at paras. 109–112).
[40] With respect to the second element, the Tribunal found that reclassifying the positions constituted a measure within the meaning of the Act and that this had been established by the applicant (at paras. 118–123). However, the Tribunal specified that Mr. Morin had not participated in taking this measure.
[41] Lastly, the Tribunal found that Mr. Agnaou had not established the necessary link between the alleged measure and a protected disclosure. According to the Tribunal, even if it were assumed that the April 1 and 2, 2009 emails constituted an internal disclosure within the meaning of the Act, it was more likely, on the basis of the evidence, that the measure was taken to ensure that both counsel accessed the LA‑2B positions, to ensure that the appropriate process for recognizing their duties was followed, to avoid having priority public servants appointed to one of these positions, and to prevent the applicant from returning to the PPSC (at para. 127).
[42] Furthermore, the Tribunal noted that proof of the link between the measure and the disclosure requires proof of knowledge, by those who made the decision, of the existence of the disclosure. However, the Tribunal found that Mr. Agnaou had not discharged his burden of proof in this respect and did not provide any evidence that, in September 2012, the respondents knew that the April 1 and 2, 2009 emails were, or could constitute, a disclosure of wrongdoing (at paras. 139–145).
[43] With respect to the link between the measure and the applicant’s disclosure to the Office of the Commissioner, the Tribunal found that the applicant had failed to demonstrate, on a balance of probabilities, that the Office of the Commissioner had informed the PPSC that a disclosure had been forwarded to it on or before September 10, 2012 (the date on which the applicant had been informed that the two positions had been reclassified). The Tribunal added that to conclude otherwise would require disregarding all the testimony provided at the hearing, with the exception of Mr. Agnaou’s testimony, and finding that the Office of the Commissioner had failed to comply with its home statute and had informed the PPSC of the disclosure made to it. As a result, the Tribunal determined that the complainant had failed to establish, on a balance of probabilities, the existence of a link between his disclosure to the Office of the Commissioner and the reclassification of the two positions. The complaint was therefore dismissed because Mr. Agnaou had not shown that the respondents had taken reprisals against him.
III. The request for recusal [44] A few days before the hearing of this application for judicial review, the applicant sent a letter to this Court in which he raised a potential conflict of interest involving a member of this panel. The applicant argued that the Honourable Mr. Justice LeBlanc had previously recused himself in a case (T-2064-15) involving the same parties when he was a member of the Federal Court. Justice LeBlanc explained that the feared conflict of interest resulted from the fact that an employee of the Office of the Commissioner who had participated in the decision-making process that had led to the dismissal of his reprisal complaint was a long-time friend.
[45] After giving Mr. Agnaou the opportunity to explain his request for recusal at greater length at the start of the hearing, this Court withdrew to consider his request. When it returned, Justice LeBlanc read the following reasons, which I have reproduced in full below:
[translation]
After having considered the appellant’s letter, dated April 28, 2022, and the submissions that he has just made to us, I am of the opinion that an informed, sensible, and reasonable person, viewing the matter realistically and practically—and having thought the matter through—would think that it is more likely than not that I would render a fair decision in these proceedings for the following reasons:
(a) Firstly, the proceedings before us here involve a decision of the Public Servants Disclosure Protection Tribunal of Canada, not a decision of the Public Sector Integrity Commissioner; in other words, the proceedings do not concern the Commissioner’s decision to dismiss the reprisal complaint—a case from which I recused myself in November 2017—or any other decision made by this decision‑maker;
(b) Secondly, as evidenced by the judgment of the Federal Court disposing of the judicial review from which I had recused myself, namely, the judgment delivered on March 31, 2017, the Commissioner made an about-face on that date and was willing to refer the appellant’s reprisal complaint to the Public Servants Disclosure Protection Tribunal of Canada. Consequently, for all intents and purposes, the issue of the reasonableness of the decision in relation to the proceedings in which this friend had participated no longer arose;
Lastly, the friend who prompted my recusal from the November 2017 case retired from the federal public service in June 2017, a few weeks before the Commissioner formally referred the appellant’s reprisal complaint to the Tribunal, which happened in August 2017; in other words, this friend was no longer employed by the Office of the Public Sector Integrity Commissioner when the proceedings before the Tribunal in connection with the appellant’s reprisal complaint were initiated, conducted and concluded.
I therefore see no reason to recuse myself from this case.
IV. Issues [46] The applicant raised several issues in his memorandum and oral submissions, which respondent André A. Morin essentially repeated. The Commissioner, for his part, set out 12 issues, while the Attorney General, Mr. Saunders, Mr. Dolhai and Mr. Desharnais focused their arguments on the standard of review, the reasonableness of the Tribunal’s decisions, and observance of the principles of procedural fairness.
[47] In the end, I am of the view that all the arguments raised by the parties can be grouped around the following issues:
(1) Did the Tribunal err in determining that the April 1 and 2, 2009 emails were not protected disclosures under section 12 of the Act?
(2) Did the Tribunal err in finding that Mr. Agnaou did not demonstrate the necessary causal link between his disclosure and the alleged measure?
(3) Did the Tribunal err in dismissing the motion for disclosure?
(4)Did the Tribunal observe the principle of procedural fairness?
V. Analysis [48] The applicant argues that the applicable standard of review should be correctness on the grounds that the Act is quasi‑constitutional in nature. However, he did not rely on any precedents to support his contention and at most alluded vaguely to the connection between the protection of persons who disclose and the values that underpin the Constitution. Without wishing to deny the importance of the Act in the architecture of our government institutions, this seems to me to be quite insufficient to give it a fundamental status similar to that of the Official Languages Act. Be that as it may, the Federal Court has already refused to recognize the quasi‑constitutional status of the Act in Chopra v. Canada (Attorney General), 2013 FC 644 at paras. 74 to 75. Although this issue was not explicitly commented on upon appeal, the fact remains that this Court upheld the Federal Court decision (2014 FCA 179) and the applicant did not explain why it would be appropriate to depart from these decisions.
[49] Even if it were to be assumed that the Act could be characterized as quasi‑constitutional, the applicant has not explained how this should suffice to set aside the principle that an administrative decision-maker interpreting its home statute is entitled to deference: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 [Human Rights Commission] at para. 29. The Supreme Court did not challenge this presumption in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; on the contrary, the highest court in the land reiterated the presumption that reasonableness is the applicable standard when a court reviews administrative decisions. It is true that this presumption will be set aside when constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to jurisdictional boundaries are at issue. However, one should not confuse the quasi‑constitutional status of legislation (if the Act is quasi‑constitutional legislation) and the particular questions that arise in the application of that legislation, as has been acknowledged by the Supreme Court in Human Rights Commission (at para. 30).
[50] When deciding on the reasonableness of an administrative decision, the reviewing court must determine whether that decision is based on an inherently coherent and rational chain of analysis, and whether it is justified in relation to the relevant facts and law: Vavilov at para. 85; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at para. 31; Caron Transport Ltd. v. Williams, 2020 FCA 106 at para. 16. This standard applies to all substantive aspects of an administrative decision.
[51] However, the standard of reasonableness is irrelevant to whether the duty to act in compliance with procedural fairness has been satisfied. In fact, whether the principles of procedural fairness were respected is an issue that does not lend itself well to an analysis based on the standard of review, insofar as this exercise involves examining the results whereas procedural fairness involves the procedure followed to achieve these results. As Justice Binnie wrote in C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 (at para. 102), “[t]he content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.” See also this Court’s exhaustive analysis of this issue in Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at paragraphs 32–56. While these issues are generally reviewed on the standard of correctness, what ultimately matters is whether the process followed by the administrative decision‑maker was fair to all parties. While acknowledging that administrative tribunals enjoy considerable latitude in choosing the procedures that they follow, an applicant must always be treated fairly, know the case that he has to meet, and be given the opportunity to respond. These are indispensable requirements whose violation cannot be given any deference: Algoma Tubes Inc. v. Canada (Attorney General), 2022 FCA 89 at para. 8.
A. Did the Tribunal err in determining that the April 1 and 2, 2009 emails were not protected disclosures under section 12 of the Act? [52] The applicant argued that the Tribunal erred in finding that the April 1 and 2, 2009 emails did not constitute protected disclosures because it considered only the text of those emails without taking into account the context in which the emails had been sent or the events that had preceded or followed them or that had been occurring at the time that they had been sent. He also argued that the emails had to be analyzed while taking into consideration why Mr. Agnaou had sent them (i.e., to provide his supervisors with information that he believed could show that a wrongdoing had been committed).
[53] As mentioned previously, the term “disclosure” is not defined in the Act. To give it meaning, the Tribunal referred to the purpose of the Act, the context in which it was enacted, and the definitions provided in French-language dictionaries. The Tribunal deduced from this analysis that the purpose of a disclosure within the meaning of the Act is to denounce, reveal or sound the alarm about an act that undermines the integrity of the public service. Section 12 of the Act sets out that the disclosure may be made internally to the supervisor or to the senior officer designated for the purpose by the chief executive, while section 13 authorizes the public servant to make a disclosure to the Commissioner. In this case, the Tribunal had no difficulty recognizing that a communication had been made to the Commissioner on October 13, 2011, but it indicated that it was of the opinion that the April 1 and 2, 2009 emails did not constitute an internal disclosure.
[54] First of all, it should be emphasized that the Tribunal, drawing inspiration from the decisions rendered in El‑Helou 1 and Agnaou FCA 2015, recognized that the Act must be given a broad and liberal interpretation. Moreover, the Tribunal took care to preface its analysis with a warning that its findings regarding its interpretation of a disclosure within the meaning of section 12 of the Act were not intended to be general in scope, but only applied to the circumstances of this case, given the absence of submissions from Mr. Agnaou in this respect.
[55] Contrary