Haydon v. Canada (Treasury Board)

Haydon v. Canada (Treasury Board)
Court (s) Database
Federal Court Decisions
Date
2004-05-21
Neutral citation
2004 FC 749
File numbers
T-309-02
Notes
Reported Decision
Decision Content
Date: 20040521
Docket: T-309-02
Citation: 2004 FC 749
OTTAWA, ONTARIO, THIS 21st DAY OF MAY, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
DR. MARGARET HAYDON
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision rendered on January 25, 2002 by Joseph W. Potter, Vice-Chairperson of the Public Service Staff Relations Board, sitting as an adjudicator. The decision concerned Dr. Haydon's grievance of a ten day disciplinary suspension, imposed following publication of her remarks in The Globe and Mail on February 9, 2001 to the effect that the ban on the importation of Brazilian beef was "more a political move than a health one for the Canadian government", as she did not "think there's any difference [in risk] between Brazilian beef and Canadian beef". Although the adjudicator decided there was a basis for some discipline, the suspension was reduced to five days.
BACKGROUND
[2] The applicant is a Drug Evaluator in the Bureau of Veterinary Drugs (BVD) at Health Canada, a position she has held since 1983. She holds a doctor of Veterinary Medicine degree from the Western College of Veterinary Medicine at the University of Saskatchewan. Prior to commencing work as a Drug Evaluator, she practised as a Veterinarian in Alberta, Saskatchewan and Ontario. All ten years of practice prior to beginning her work at Health Canada were spent working directly with food-producing animals, particularly cows. As part of her continuing education as a veterinarian and because of her specific work in the BVD, she has maintained an interest in the subject of bovine spongiform encephalopathy (BSE), commonly known as mad cow disease, and in transmissible spongiform encephalopathies (TSEs) more generally.
[3] In 1998, Canada developed a policy to the effect that live animals would not be permitted to enter Canada from a country where mad cow disease was found, or from a country where risk factors for mad cow disease had been assessed. Brazil was one of six countries asked to provide Canada through Dr. Evans, Chief Veterinary Officer and Executive Director of the Canadian Food Inspection Agency (CFIA), with information so that a risk assessment could be conducted. By December 2000, Brazil had supplied some of the information Dr. Evans felt was needed, but not all of what he sought. Then, on January 26, 2001, the United Nations Food and Agriculture Organization (FAO) issued a press release in Rome, advising all countries to be vigilant about importing animals with mad cow disease. On January 30, 2001 in response to the press release issued by the FAO, Brazil issued their own press release which contained contradictions with respect to some of the information Dr. Evans had obtained from them in his earlier questionnaire related to the risk assessment.
[4] The essence of this, as far as Dr. Evans was concerned, was that Brazil did not have significant import controls over the animals they had imported from other countries. Due to the fact Brazil had imported animals from countries where mad cow disease was prevalent, and Brazil could not isolate where those imported animals were situated, Dr. Evans felt immediate action needed to be taken. He consulted with European colleagues, who expressed concern that cattle imported to Brazil may have come from contaminated farms, and American and Mexican colleagues who expressed similar concerns and wanted to move in unison with Canada to protect the North American public. On February 1, 2001, Dr. Evans recommended to the Minister of Agriculture and Agri-Food to suspend the importation of at risk products, including canned beef and beef extract, from Brazil.
[5] Following Canada's action, 32 other countries took the same approach.
[6] A decision such as the ban necessitated meeting with a number of other Government departments that had a related interest. Included in these discussions was the Department of Foreign Affairs. They had expressed some concern with respect to the timing of the issuance of the ban. At that point in time, there were ongoing discussions with the World Trade Organization (WTO) concerning the commercial dispute in which Canada and Brazil were embroiled with respect to two aircraft manufacturers. The two companies were Bombardier in Canada and Embraer SA in Brazil.
[7] The coincidence in relation to the timing of the ban and the commercial dispute was acknowledged by the Government and by no means was it ignored. In fact, a secret document entitled "Communications Approach Suspension of Importation of Animal Products from Brazil and Potential Recall of Imported Brazilian Products" recognizes that strong rationales should be provided to explain the timing of these actions. It provides as follows:
(...)
Trade issues
The timing of the suspension of importation of animal products from Brazil is necessary but unfortunately may be perceived as a retaliatory measure resulting from Canada's dispute with Brazil over issues in the aerospace industry.
Strategic Consideration: To position this issue internationally as action taken by Canada for public health reasons, not trade reasons. To emphasize that Brazil is not being singled out but that in fact, it is the only country that has not complied with Canada's requests for information to determine BSE status. To indicate that Canada has provided Brazil with ample time to comply , but that it recent new evidence on BSE requires Canada to take responsible and prudent action immediately.
NAFTA partners should be informed to facilitate a uniform approach to this issue. Their positions should be monitored and additional actions taken as required.
(...)
[8] Health Canada was involved in the decision to suspend the importation of Brazilian beef in that Health Canada sets the policies and standards that are implemented by the CFIA. The policy developed in this case was developed by experts in Health Canada in conjunction with CFIA employees. However, the applicant was not part of the group consulted. It was confirmed before the adjudicator that the decision to suspend the importation of Brazilian beef was taken by CFIA and not Health Canada.
[9] On February 7, 2001, Dr. Evans spoke to his Brazilian counterpart and decided that there was a need to go to Brazil in order to conduct a site assessment. It was then decided that a multi-disciplinary team would go with representatives from Canada, the United States and Mexico. The team was to depart from Canada on February 13, 2001.
[10] On February 8, 2001, the applicant received a phone call at home from Mark MacKinnon, a reporter with The Globe and Mail, who wished to asked her questions about the ban imposed on Brazilian beef. A conversation took place between Mr. MacKinnon and the applicant during which she informed him of her health and safety concerns regarding BSE. However, as we will now see, those concerns were not reproduced in the article published the next morning, that is on February 9, 2001.
[11] That day, one could read on the first page of The Globe and Mail "Mad-cow ban on Brazil a 'ruse', scientists say". The article in question provided as follows:
Federal experts say politics, not safety, prompted Ottawa to halt beef imports
BY MARK MacKINNON, OTTAWA
Canada's controversial ban on Brazilian beef is a ruse motivated by politics and a trade war rather than health concerns, two senior Health Canada scientists say.
In interviews with The Globe and Mail, they said there is no sustainable argument for singling out Brazilian beef products ahead of those imported from other countries. One of them added that the ban was decided upon by managers without consulting the scientists who actually study the beef.
"There was no consultation with us, the scientists", said a senior scientist close to the file who asked not to be named. "Brazilian beef poses no danger that we know of. No more than any other country. Why not Australia, Argentina, India or any other country we import beef from? Why is Brazil picked on? It's the trade war."
Last week, Canada banned Brazilian beef products, citing a "theoretical risk" that they could be contaminated with mad-cow disease. While Brazil has never had a case of the disease, Canada had one in 1993.
In fact, some experts say Brazilian beef is among the safest in the world, because many of its herds have been grass-fed since as far back as 1983. Mad-cow disease technically known as bovine spongiform encephalopathy, is spread through feeding animals parts of dead animals. The practice was legal in Canada until 1997.
"What happened with the Brazilian beef was, in my opinion, a ruse," the senior scientist said.
"They already had a fight going on with Brazil because of the plane thing and the WTO. They felt they may as well hit Brazil with this, since we don't import very much beef from them anyway".
He said Health Canada also benefits from the perception that it is taking action to counter the spread of mad-cow disease.
Margaret Haydon, a Health Canada scientist once reprimanded for speaking out about internal pressures to approve a controversial bovine growth hormone, also said she believes the ban has nothing to do with health concerns.
"In my opinion, I don't think there's any difference [in risk] between Brazilian beef and Canadian beef. With the aircraft dispute, it's more a political move than a health one for the Canadian government".
The ban has sparked an uproar in Brazil, which believes the move is related to a continuing trade dispute between the two countries over subsidies to Montreal-based jet maker Bombardier Inc. and its Brazilian rival Embraer SA.
The affair has made Canada a target of resentment in the South American country. Restaurant owners have begun displaying signs advertising that they don't sell Canadian food, and have been dumping Canadian whisky out by the bottle.
Brazilian politicians are considering blocking the import of Canadian goods, and are talking about backing out of a proposed free trade agreement of the Americas because of the ban and the aircraft dispute. Brazil is also considering suing Canada at the International Court of Justice in The Hague.
Protesters in Brasilia delivered a cow to the Canadian embassy yesterday and offered to barbecue it to prove it safe. The embassy's business attaché, Jose Herran-Lima, said he would hold off on the barbecue until Canada is sure Brazil is free of mad-cow disease.
Industry Minister Brian Tobin, embroiled in the Brazil file since he announced $2-billion in new subsidies to Bombardier last month, said yesterday that the trade dispute and the beef ban aren't connected.
"I think it's important the people of Brazil appreciate that. It's purely a food issue, purely a safety issue".
While Canada only imports about $10-million worth of Brazilian beef annually, most of it canned, the ban has been damaging. The United States and Mexico, Canada's free-trade partners, were obliged to follow suit, though both have since announced they're reviewing the ban.
Micheal McBain, the national coordinator for the Canadian Health Coalition, said that if Canada was serious about cracking down on BSE, it would have introduced much broader measures than simply targeting Brazilian beef. He pointed out that according to Statistics Canada, Canada imported 2.8 million kilograms of meat products between 1996 and 2000 from European countries known to have mad-cow outbreaks.
"This move against Brazil has no credibility whatsoever as a health measure. They picked a country way down the risk list - you can't get safer meat," he said. "All the evidence points to this being a trumped-up pretext."
With a report from Agence France Presse
(my emphasis)
[12] As we can see, although the applicant is referred to as "a Health Canada scientist once reprimanded for speaking out about internal pressures to approve a controversial bovine growth hormone", this article does not directly deal with the applicant's concerns with respect to TSE. The article focusses on the trade dispute with Brazil and questions about whether or not the ban is a pretext. That being said, the applicant admits that the aforementioned article accurately reported the two remarks she made in response to Mr. MacKinnon's questions. Before the adjudicator, the applicant explained that the article in question did not refer to comments she had made at much greater length about her health and safety concerns. In fact, the applicant submitted that her statements were taken out of context. She was not interested in discussing Brazilian cattle with Mr. MacKinnon. Rather, she expressed concerns about the many products that are imported into Canada that contain products of cattle origin, and that are difficult to trace, or for which little is known of their source. For instance, the applicant explained that she told Mr. MacKinnon that gelatin from cattle may be used in medical products, in gelatin capsules surrounding drugs, and in the manufacture of candies and foods. Vaccines, beef broth, foetal calf serum, specialty sausages using brain tissue as the binding agent, and many other products may contain beef products of which we are unaware. Often we don't know the source of this beef.
[13] It is not surprising that the applicant's concerns about BSE or TSE's were not reproduced in the article in question. At the time the latter was published, the subject of Brazilian beef had become a topical one due to the decision made a few days before to suspend its importation. That being said, the applicant was not a member of the science team assembled by Health Canada to assess the impact of the infectious diseases in question and the Division where she worked was not responsible for such assessment. The applicant nevertheless agreed to publicly comment on the appropriateness of the ban.
[14] In light of Dr. Haydon's comments referred to above, which were published on February 9, 2001, the Chief Veterinary Officer for the United States called Dr. Evans and questioned Health Canada's initial position and this new view. Dr. Evans indicated that he had not received anything from Health Canada retracting their support; therefore, their official position had not changed. Also, the Chief Veterinary Officer with the Brazilian Government contacted Dr. Evans and sought to cancel an upcoming trip because the concerns appeared not to be health related. Dr. Evans explained to his Brazilian counterpart that the trip was essential in order to complete a site evaluation and determine if Canada should reconsider its action. Before the adjudicator, Dr. Evans testified that a number of technical staff, who would have otherwise been preparing for the upcoming February 13, 2001, trip had to be diverted to deal with the deluge of briefing notes prepared for the Minister in light of the applicant's comments in The Globe and Mail. Upon arriving in Brazil, there was a need for security arrangements for the multi-purpose team and Dr. Evans himself was provided with a security guard for his hotel. He had to be moved to another hotel for his safety.
[15] On February 12, 2001, as a result of the comments attributed to Dr. Haydon in The Globe and Mail article, Diane Kirkpatrick, the individual in charge of the Division where the applicant worked, asked her to attend a meeting, the purpose of which was to determine whether or not the quotes attributed to her in The Globe and Mail were accurate and to hear the explanations of the applicant. This was not the first time the applicant's comments were reported by the press or that she has been disciplined as a result of positions she has expressed publicly.
[16] On June 11, 1998, the applicant and one of her colleagues, Shiv Chopra, were interviewed on Canada AM, a national television show which is broadcast in the mornings on the CTV network. During the interview, they expressed serious concerns regarding the drug review process and the impact these problems could have on the health of Canadians. Some two weeks after the interview, Mr. Chopra was reprimanded while the applicant received a letter of instruction requesting her to adhere to the departmental policy and procedures regarding contact with the media. It appears that at that time she had indicated to her employer that she had been approached by the producers of the television program and that she was unaware of Government policy and procedures regarding contact with the media. The two grieved. The applicant contended that the letter of instruction amounted to a written reprimand and a retaliation against her rights and obligations as a public servant. Both grievances were denied by the Associate Deputy Minister who ruled that, even though public servants do enjoy freedom of expression, they do not have a licence to publicly and unreasonably criticize the manner in which Government departments discharge their responsibilities. On September 5, 2000, this Court allowed their application for judicial review. The decision of the Associate Deputy Minister was set aside and the matter was referred back to him with the direction that he consider their grievances in accordance with the reasons of this Court (Haydon v. Canada, [2000] F.C.J. No. 1368 (F.C.T.D.) (QL), (2000), 192 F.T.R. 161). I will comment later on this decision in the analysis section of the present reasons.
[17] After the June 1998 interview on Canada AM, the applicant continued to publicly express concerns regarding health and safety matters related to the use of growth hormones and the inspection of beef products. Just a few months before the publication of The Globe and Mail article, in an article in La Presse dated November 23, 2000, the applicant is referred to as an expert who maintains that scientists are being pressured to approve products and expresses the view that she only eats beef that comes from a small organic farm. In Le Devoir on November 24, 2000 the applicant expressed concerns regarding the use of growth hormones in Canada which are banned in Europe. Concern was also expressed that Health Canada was ignoring the advice of its experts. In a story dated January 7, 2001, the applicant queried why we should have carcinogens in our food when they do not cause any benefits. The story raised concerns regarding the fact that certain beef is banned in Europe but not in Canada. Apparently, none of these more recent reported statements have resulted in any disciplinary action against the applicant. Before the adjudicator, the applicant testified that the fact that she was not disciplined in these cases led her to believe that the employer would not object to the statements that she made to The Globe and Mail in February 2001.
[18] Coming back to the February 12, 2001 meeting, Ms. Kirkpatrick indicated at the conclusion that she would review the information and advise the applicant as to what would happen. Ms. Kirkpatrick ended up suspending the applicant for a period of 10 days. The letter of suspension dated February 20, 2001 states in part:
(...)
The article quoted you saying, "In my opinion, I don't think there's any difference [in risk] between Brazilian beef and Canadian beef. With the aircraft dispute, it's more a political move than a health one for the Canadian government."
On February 12, 2001, you were provided the opportunity to explain the circumstances surrounding your decision to speak to the media. You were given the opportunity to bring forward any information or evidence on this subject. You confirmed that you had made the statement but you did not provide any information or evidence to support this statement. In fact during this meeting, you would not respond to a number of direct questions about any possible scientific concerns relating to the government's decision to suspend importation of beef and beef products form Brazil. In answer to my question as to how your statement relates to safety and health of the public, you answered that "... nothing was done regarding other products" and that you have many concerns about safety, but provided no example or detail.
(...)
You have provided no information or evidence to indicate that you were speaking out on a matter that would jeopardize the life, health or safety of Canadians. Indeed, your statement in the press suggests that health is not the issue. You have not provided me with any information to allow me to find that your action was appropriate speech by a public servant within the meaning of the law. You are a Health Canada scientist. The nature of your position as a drug evaluator with Pharmaceutical Assessment Division of the Bureau of Veterinary Drugs involves matters that are important and sensitive. Your position is what made your remarks newsworthy. Notwithstanding the fact that you were not involved in the government's decision and were speaking about a subject outside of your area of expertise as a drug evaluator, your comments to the media leave the impression with the public that you have special knowledge because of your position. Your action impact negatively on your ability to perform impartially and effectively the duties of drug evaluator in the public service and on the public perception of that.
(...)
As you know, the duty of loyalty owed by public servants to their employer was recognized by the Supreme Court of Canada in Fraser v. P.S.S.R.B. and was recently confirmed by the Federal Court in Chopra v. Canada; Haydon v. Canada. Those decisions discuss the balance to be struck between the maintenance of an impartial and effective public service and employees' freedom of speech, and identify the circumstances in which public criticism of the employer might be acceptable. You have failed to show that your comments to the media come within any of the exceptional circumstances.
(...)
After a review of this matter, and having taken into account your representations on February 12, I find this type of willful misconduct unacceptable. This was a highly visible criticism of Government action with both domestic and international implications. Your action was inconsistent with your responsibility as an employee of the Government. It erodes the necessary employer/employee relationship and is in disregard of your duty of loyalty.
[19] Before the adjudicator, the applicant requested that the suspension be rescinded, that she be reimbursed all lost salary and benefits with interest, that all related documents be destroyed and finally, that she be compensated for any and all expenses incurred.
THE ADJUDICATOR'S DECISION
[20] The adjudicator partly allowed the grievance. After reciting the facts and reproducing the parties' positions, the adjudicator provided his reasons for doing so. His rational can be summarized in the following manner.
[21] First, the adjudicator considered that before raising publicly a matter critical of Government policy, the applicant should have raised the matter internally, relying on what had been said by Madam Justice Tremblay-Lamer in Haydon, supra. At paragraphs 74, 78 and 79 of his decision, the adjudicator made the following findings.
In my view, the Court [in Haydon, supra] stressed that internal mechanisms are to be used initially before a public servant should contemplate going public with criticism of Government policy. In other words, the first avenue for a public servant to follow when raising a matter critical of Government policy is to raise it internally.
(...)
Counsel for the grievor states: "...nothing which Health Canada could have done internally would have been able to address her concerns." Unfortunately, we will never know if that is true or not because Dr. Haydon chose not to raise the matter internally. However, it is not, in my view, up to the employee to assess whether or not the employer can address this concern. Rather it is up to the employee to raise his/her concerns internally, and then engage in a full discussion with the employer on the issue.
Consequently, the issue of whether or not this comment fell within the area outlined by the courts as one that permitted public comment, does not need to be reviewed here, in my opinion, because the first prerequisite set down in the decision of Madam Justice Tremblay-Lamer has not been met, namely an attempt to resolve the issue internally.
[22] Second, he considered that the reported statements were not related to health and safety in view of the fact that the applicant mentioned on the contrary that the ban imposed is rather a political move. Therefore, the adjudicator found that the reported statements did not fall within the exception to the duty of loyalty rule as outlined by Chief Justice Dickson in Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 (S.C.C.) at paragraph 41. As a result, the adjudicator found that there was an act of culpable misconduct committed, and as such, disciplinary sanction was appropriate.
[23] At paragraphs 80, 81, 82, 83 and 87, the adjudicator stated:
However, if I am wrong in reaching [the] conclusion [that the internal mechanisms had to be used initially], I would have concluded that the statements Dr. Haydon made did not fall within the exception to the duty of loyalty rule, as outlined by Chief Justice Dickson in Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455, at page 470, which states:
... And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies...
The statements made by Dr. Haydon in this case indicated, in fact, she believed health and safety were not involved, but rather it was a political move on the part of the Federal Government to ban Brazilian beef. In fact, as the evidence from Dr. Evans showed, it was very much a health and safety concern. Therefore, Dr. Evans' statements related to health and safety, while Dr. Haydon's statements, in substance, did not.
Having found that, I conclude that there was an act of culpable misconduct committed by Dr. Haydon and as such some disciplinary sanction was appropriate.
The grievor's counsel argues condonation of similar statements. It is advanced that because previous public statements attracted no discipline, this should not attract discipline as well. Quite frankly I do not see any similarity to the facts of this case and the examples put forward of other Health Canada scientists speaking out on issues. This situation involves an employee who has not used any internal mechanisms to address her concerns. Furthermore, the statement was not one which, in my view, feel into the Fraser (supra) exception. Dr. Haydon stated, in fact, it was not a health issue. The examples cited by the grievor's counsel when arguing condonation all related to issues of a health concern.
(...)
The evidence revealed that the comments made by Dr. Haydon and the unnamed scientist had a damaging effect with respect to the decision to ban Brazilian beef. In my view, someone who lends his or her name to a public statement carries the first that there will be more or less weight attributed to that statement depending on the expertise of the person to whom the statement is attributed. Dr. Haydon's name carried, in my view, significant weight in this case. In my view, it carried more weight that an "anonymous source". She was a scientist with Health Canada saying this was not a health issue. At the very least, this would have caused confusion among members of the public, and it certainly led to disruption within the Department. Members of the multi-disciplinary team had to be diverted from planning their trip to Brazil to, instead, preparing ministerial briefing notes. Security was a major concern for the multi-disciplinary team when they actually travelled to Brazil.
[24] Third, the adjudicator found that in light of the particulars surrounding the release of the information to the press, the level of discipline assessed was excessive. While the applicant should not have issued public criticism about the policy to ban Brazilian beef, she did not initiate contact with the media. They contacted her. Therefore, this fact mitigated to some extent the sanction imposed. In light of all the evidence presented to him, the adjudicator found that the disciplinary penalty of five days without pay would be more appropriate in the circumstances as it would send an appropriate message that public criticism of Government policy in these circumstances was not appropriate and, hopefully, would be sufficient to be corrective. As such, the applicant was reimbursed for five days of lost wages.
GROUNDS OF REVIEW
[25] The applicant now asks this Court to review the decision rendered by the adjudicator on a number of grounds:
(a) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction when he concluded that the applicant ought to have exhausted internal recourse without ruling upon the applicant's position that no internal recourse was available to address her concerns;
(b) The adjudicator erred in law when he concluded that the comments made by the applicant did not fall within the class of public speech which is permissible for a public service employee;
(c) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction by not addressing the applicant's position that the disciplinary action was inappropriate having regard to the fact that another employee had spoken publically on the same issue but was not subject to discipline;
(d) The adjudicator erred in law by concluding that the employer had not condemned similar statements which would have led the applicant to believe that the action she took was appropriate;
(e) The adjudicator erred in law and wrongfully failed to exercise his jurisdiction by not squarely considering and addressing the very basis upon which the employer sought to justify the disciplinary action;
(f) The adjudicator erred in law and wrongfully exercised his jurisdiction by not having proper regard to the protection of freedom of expression contained in the Canadian Charter of Rights and Freedoms and by accepting and applying an overly narrow scope of freedom of expression for public service employees such as the applicant;
(g) The adjudicator erred in law and based his decision on irrelevant factors, particularly insofar as he relied upon the fact that the applicant has been successful in a proceeding involving freedom of speech in the Federal Court, upon the applicant's actions in the fact-finding meeting with her supervisor, and upon the fact that the applicant was not entitled to voice a personal opinion publicly;
(h) The adjudicator erred in law or based his decision on erroneous findings of fact made without regard for the material before him by ignoring relevant evidence, particularly evidence regarding the lack of harm caused by the applicant's statement and the widespread public opinion on the same issue which existed prior to the applicant making her statement;
(i) The adjudicator based his decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before him, particularly insofar as he characterized the applicant's comments as not relating to a health issue when her evidence was to the contrary, insofar as he distinguished Dr. Haydon's comments from other comments that had been made by Health Canada employees on the basis that the latter comments were concerning health matters, insofar as he ignored the evidence that the "harms" identified by the employer existed before Dr. Haydon's statement was made and declined in impact following the applicant's statement and, overall, insofar as it was found that the applicant's statement was inappropriate having regard to her position and the nature of the public debate on this issue.
STANDARD OF REVIEW
[26] In order to properly review the adjudicator's decision we must first determine the appropriate standard of review to be applied. There is somewhat of a controversy in assessing the proper standard of review since subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7 sets out the specific grounds that an applicant must establish in order to succeed on an application for judicial review. It prescribes as follows:
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
[27] In choosing to enumerate six distinct grounds of review, Parliament seems to have deliberately opted for a rather formalistic approach to judicial review where the focus is primarily connected to the particular nature or gravity of the error alleged by an applicant.
[28] While an erroneous finding of fact made by a tribunal, is not per se excluded from judicial scrutiny, it only becomes a reviewable error within the ambit of paragraph 18.1(4)(d) if the applicant is able to satisfy the Court that it has been made "in a perverse or capricious manner or without regard for the material before the tribunal". In Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108 at para. 14 (F.C.A.) (QL), Décary J.A. notes that:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous.
[29] This Court has been asked by the applicant to grant a judicial review of the adjudicator's decision. When a review application raises specific grounds of review under subsection 18.1(4) of the Federal Court Act, one may then wonder if it is really necessary for the Court to always rely on the pragmatic and functional approach in order to determine the appropriate standard of review. As is well known, Canadian courts now take a pragmatic and functional approach to the review of administrative decision. There is a wealth of jurisprudence to guide this Court when reviewing a decision from an administrative tribunal. The law is aptly summarized by Iacobucci J. in the recent decision of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 (S.C.C.) where he said at paragraph 1:
According to the governing jurisprudence, a court reviewing the decision of an administrative tribunal should employ the pragmatic and functional approach to determine the level of deference to be accorded to the decision in question. The appropriate level of deference will, in turn, determine which of the three standards of review the court should apply to the decision: correctness, reasonableness simpliciter, or patent unreasonableness.
(my emphasis)
[30] The leading statement on determining the applicable standard of review pursuant to the pragmatic and functional approach is found in the reasons of Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (S.C.C.); see also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 226 (S.C.C.), 2003 SCC 19, where it has been determined that four factors be taken into account: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing judge on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the problem.
[31] Pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the Act) an employee may grieve an employer's decision at all possible grievances levels pursuant to the procedures set out in the Act. If the grievance remains unresolved, the employee may then use the procedures set out in section 92 which provides as follows:
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(...)
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(...)
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
to any termination of employment under the Public Service Employment Act.
92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
[...]
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
[32] In Green v. Canada (Treasury Board), [2000] F.C.J. No. 379 (F.C.A.) (QL), Sharlow J., for the Federal Court of Appeal, wrote at paragraphs 7 and 8:
In a judicial review of the decision of an adjudicator under the Public Service Staff Relations Act, the appropriate standard is patent unreasonableness: ... The question here is whether the Judge correctly applied the "patently unreasonable" standard of review to the adjudicator's de