Gordillo v. Canada (Attorney General)

Gordillo v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-02-09
Neutral citation
2022 FCA 23
File numbers
A-290-19
Notes
A correction was made on July 21, 2022
Decision Content
Date: 20220209
Docket: A-290-19
Citation: 2022 FCA 23
CORAM:
WEBB J.A.
LASKIN J.A.
RIVOALEN J.A.
BETWEEN:
MIRNA MONTEJO GORDILLO, JOSÉ LUIS ABARCA MONTEJO, JOSÉ MARIANO ABARCA MONTEJO, DORA MABELY ABARCA MONTEJO, BERTHA JOHANA ABARCA MONTEJO, FUNDACIÓN AMBIENTAL MARIANO ABARCA (MARIANO ABARCA ENVIRONMENTAL FOUNDATION OR FAMA), OTROS MUNDOS, A.C., CHIAPAS, EL CENTRO DE DERECHO HUMANOS DE LA FACULTAD DE DERECHO DE LA UNIVERSIDAD AUTÓNOMA DE CHIAPAS (THE HUMAN RIGHTS CENTRE OF THE FACULTY OF LAW AT THE AUTONOMOUS UNIVERSITY OF CHIAPAS), LA RED MEXICANA DE AFECTADOS POR LA MINERÍA (MEXICAN NETWORK OF MINING AFFECTED PEOPLE OR REMA) AND MININGWATCH CANADA
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
AMNESTY INTERNATIONAL CANADA AND CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS AND THE INTERNATIONAL JUSTICE AND HUMAN RIGHTS CLINIC AND THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY
Interveners
Heard at Ottawa, Ontario, on November 8, 2021.
Judgment delivered at Ottawa, Ontario, on February 9, 2022.
REASONS FOR JUDGMENT BY:
LASKIN J.A.
CONCURRED IN BY:
WEBB J.A.
RIVOALEN J.A.
Date: 20220209
Docket: A-290-19
Citation: 2022 FCA 23
CORAM:
WEBB J.A.
LASKIN J.A.
RIVOALEN J.A.
BETWEEN:
MIRNA MONTEJO GORDILLO, JOSÉ LUIS ABARCA MONTEJO, JOSÉ MARIANO ABARCA MONTEJO, DORA MABELY ABARCA MONTEJO, BERTHA JOHANA ABARCA MONTEJO, FUNDACIÓN AMBIENTAL MARIANO ABARCA (MARIANO ABARCA ENVIRONMENTAL FOUNDATION OR FAMA), OTROS MUNDOS, A.C., CHIAPAS, EL CENTRO DE DERECHO HUMANOS DE LA FACULTAD DE DERECHO DE LA UNIVERSIDAD AUTÓNOMA DE CHIAPAS (THE HUMAN RIGHTS CENTRE OF THE FACULTY OF LAW AT THE AUTONOMOUS UNIVERSITY OF CHIAPAS), LA RED MEXICANA DE AFECTADOS POR LA MINERÍA (MEXICAN NETWORK OF MINING AFFECTED PEOPLE OR REMA) AND MININGWATCH CANADA
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
and
AMNESTY INTERNATIONAL CANADA AND CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS AND THE INTERNATIONAL JUSTICE AND HUMAN RIGHTS CLINIC AND THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY
Interveners
REASONS FOR JUDGMENT
LASKIN J.A.
I. Introduction
[1] The appellants, family members and supporters of Mariano Abarca, a community leader who was murdered in Mexico in November 2009, appeal from a judgment of the Federal Court (2019 FC 950, Boswell J.). In its judgment, the Federal Court dismissed the appellants’ application for judicial review of a decision of the Public Sector Integrity Commissioner of Canada (PSIC-2017-D-0413), made under the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (PSDPA).
[2] The appellants submitted a complaint to the Commissioner alleging wrongdoing at the Canadian Embassy in Mexico City, and requesting that the Commissioner commence an investigation. They invoked two categories of wrongdoing, as set out in the PSDPA: “an act or omission that creates a substantial and specific danger to the life, health or safety of persons,” and “a serious breach of a code of conduct.”
[3] The Commissioner decided that the information the appellants provided did not give him reason to believe that either category of wrongdoing had been committed. He concluded, therefore, that it was not in the public interest to commence an investigation into the alleged wrongdoing, and he declined to do so.
[4] The appellants say that the application judge erred in failing to find the process the Commissioner followed in reaching his decision to be unfair, and in finding the decision to be reasonable. Four non-governmental organizations have intervened in support of the appellants’ position that the decision was unreasonable, and three of the four submit that the PSDPA must be interpreted and applied so as to give effect to Canada’s international law obligations and to Charter values.
[5] For the reasons that follow, I would dismiss the appeal. In brief, I find no breach of procedural fairness, and conclude that the Commissioner’s decision was not unreasonable on any of the grounds the appellants put forward, given his role and the governing statutory framework. I also find it would be inappropriate for this Court to consider the interveners’ international law and Charter arguments for the first time in this appeal, when they were not put to either the Commissioner or the Federal Court.
II. Background
[6] Blackfire Exploration Ltd., a small Canadian mining company, constructed and operated a barite mine in the Mexican state of Chiapas between December 2007 and December 2009, when the mine was shuttered by Mexican authorities for environmental violations.
[7] Throughout the project, Canadian Embassy officials in Mexico assisted Blackfire with its negotiations with the Mexican government, and lobbied regulatory authorities on the company’s behalf.
[8] Blackfire’s mining operations in Chiapas attracted significant opposition from the local community. They were the target of large protests and months-long blockades. Mr. Abarca, a resident of the nearby town of Chicomuselo in Chiapas, a state in southern Mexico, was a prominent advocate against the mine. In July 2009, he led a delegation of residents to protest Blackfire’s behaviour in front of the Canadian Embassy in Mexico City.
[9] Several weeks after this protest, Mr. Abarca was arrested by Mexican police after Blackfire brought charges related to his anti-mining activities. The Embassy received over 1,400 emails in a letter-writing campaign related to his detention, and contacted state and federal officials (including the state Human Rights Commission) and Blackfire for more information. Mr. Abarca was released after eight days in detention and was not charged with an offence.
[10] A few months later, Embassy officials went to Chiapas to discuss the project with government officials and advocate on Blackfire’s behalf.
[11] Mr. Abarca was murdered outside of his home in Chicomuselo in late November 2009.
[12] Embassy officials issued a statement welcoming the Mexican authorities’ investigation into Mr. Abarca’s death, and monitored the reaction as allegations against Blackfire increased. They also helped Blackfire consider investor-state dispute options after the mine was closed.
[13] Though Blackfire employees were charged with Mr. Abarca’s murder, no one was ultimately convicted. Canada-based advocacy groups pressed for a criminal investigation of Blackfire in Canada for contravention of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. The RCMP conducted an investigation, and advised in February 2015 of their conclusion that the evidence did not support criminal charges.
[14] The appellants comprise Mr. Abarca’s wife, two sons and two daughters, together with five non-governmental organizations from Mexico and Canada.
[15] In late 2010, the appellants submitted a request under the Access to Information Act, R.S.C. 1985, c. A-1, for records in relation to the Canadian Embassy in Mexico. Approximately 1,000 pages of material, many with redactions, were released in 2012 in response to the request.
[16] The appellants submitted their request for an investigation to the Commissioner in February 2018. The Commissioner issued his decision that he would not commence an investigation in April 2018.
III. Decisions to investigate under the PSDPA
[17] The Commissioner is appointed by the Governor in Council after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons. The PSDPA authorizes the Commissioner to investigate alleged wrongdoing in the federal public sector, and gives the Commissioner the discretion to determine whether an investigation should be conducted.
[18] Section 8 of the PSDPA sets out the categories of wrongdoing in or relating to the public sector to which the Act applies. The wrongdoing the appellants alleged is set out in paragraphs 8(d) and 8(e), which read as follows:
Wrongdoings
Actes répréhensibles
8 This Act applies in respect of the following wrongdoings in or relating to the public sector:
8 La présente loi s’applique aux actes répréhensibles ci-après commis au sein du secteur public ou le concernant
…
…
(d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;
d) le fait de causer — par action ou omission — un risque grave et précis pour la vie, la santé ou la sécurité humaines ou pour l’environnement, à l’exception du risque inhérent à l’exercice des attributions d’un fonctionnaire
(e) a serious breach of a code of conduct established under section 5 or 6 ….
e) la contravention grave d’un code de conduite établi en vertu des articles 5 ou 6 ….
[19] Subsection 5(1) requires the Treasury Board to “establish a code of conduct applicable to the public sector.” By subsection 6(1), “[e]very chief executive shall establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.” By subsection 2(1), “chief executive” is defined to mean “the deputy head or chief executive officer of any portion of the public sector, or the person who occupies any other similar position, however called, in the public sector.”
[20] The Commissioner may investigate alleged wrongdoing either in response to a disclosure of wrongdoing by a public servant, or as a result of information provided to the Commissioner by a person who is not a public servant. (The Commissioner also refers to the provision of information by a person who is not a public servant as a disclosure; I will therefore adopt that terminology here.)
[21] Subsection 33(1) sets out the prerequisites for the Commissioner to decide to conduct an investigation following a disclosure by a person who is not a public servant. The Commissioner must first, as a result of the information provided by the person seeking an investigation, have reason to believe that a wrongdoing has been committed. Next, the Commissioner must believe on reasonable grounds that the public interest requires an investigation. And finally, an investigation must not be restricted by section 23 or refused on the basis of one of the grounds set out in section 24.
[22] Subsection 33(1) reads in relevant part as follows:
Power to investigate other wrongdoings
Enquête sur un autre acte répréhensible
33 (1) If , … as a result of any information provided to the Commissioner by a person who is not a public servant, the Commissioner has reason to believe that … a wrongdoing … has been committed, he or she may, subject to sections 23 and 24, commence an investigation into the wrongdoing if he or she believes on reasonable grounds that the public interest requires an investigation. The provisions of this Act applicable to investigations commenced as the result of a disclosure apply to investigations commenced under this section.
33 (1) Si, … après avoir pris connaissance de renseignements lui ayant été communiqués par une personne autre qu’un fonctionnaire, le commissaire a des motifs de croire qu’un acte répréhensible … a été commis, il peut, s’il est d’avis sur le fondement de motifs raisonnables, que l’intérêt public le commande, faire enquête sur celui-ci, sous réserve des articles 23 et 24; les dispositions de la présente loi applicables aux enquêtes qui font suite à une divulgation s’appliquent aux enquêtes menées en vertu du présent article.
[23] Subsection 23(1) restricts the Commissioner from commencing an investigation if a person or body acting under another statute is dealing with the subject matter of the investigation other than as a law enforcement authority. Subsection 24(1) confers on the Commissioner a broad discretion to refuse to commence an investigation if in his or her opinion certain conditions are met. These include, in paragraph 24(1)(f), that there is “a valid reason for not dealing with the subject-matter of the … investigation.”
[24] The PSDPA also specifies the purpose of an investigation into a disclosure or an investigation commenced under section 33, should one be commenced. By subsection 26(1), an investigation is “for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.”
IV. The appellants’ disclosure
[25] The appellants submitted their disclosure using the disclosure form for members of the public published by the Office of the Commissioner. The form set out a definition of wrongdoing that tracked the language of section 8 of the PSDPA. It included the following instruction (bolding in the original):
Using your own words, while keeping in mind the definition of wrongdoing above, please describe the situation. Include: who you believe committed wrongdoing; what your specific allegations are; when and where (which federal department/organization) the alleged wrongdoing occurred. Identify any applicable Acts, Regulations, Policies or Directives relating to the wrongdoing. For example if the wrongdoing you are reporting refers to the contravention of an Act, indicate which Act.
[26] The disclosure form also contained this instruction regarding documentation (bolding in original):
You may attach supporting documentation or additional information if necessary. … To ensure a timely review of your case, only provide documentation that supports your allegations, specifying which portions you deem relevant to the alleged wrongdoing.
[27] The declaration to be signed by the person submitting the disclosure included the statement, “I understand that it is my responsibility to provide the Commissioner with all the information required by this form and to attach any relevant documentation.” A representative of the appellants signed this declaration on their behalf.
[28] The appellants’ disclosure provided with the signed form comprised some 23 pages of single-spaced text, including 100 footnotes, along with an appendix setting out dates of key events. Forty-five of the footnotes contained references to documents obtained through the access to information process, though no copies of these documents were provided. Thirty-four of the footnotes contained hyperlinks to documents of a variety of kinds, including government documents, newspaper articles, and reports. Except through these hyperlinks, the documents on which the appellants relied were, again, not themselves provided. The appellants say that the footnotes referred to 79 documents in total.
[29] In the introduction to their disclosure, the appellants submitted that the disclosure raised two issues. The first, they submitted, related to the Embassy’s failure to follow three policies dealing with conflicts between local communities and Canadian mining companies, a failure that led the Embassy to ignore warnings that Mr. Abarca’s life and safety were in danger. The second, they submitted, was whether the Embassy knew about but failed to report suspicious payments made by Blackfire to a local politician.
[30] After setting out a synopsis of the facts and identifying the public servants they considered responsible, the appellants proceeded, under the heading “Breach of policies related to conflicts in the extractive industry,” to address the legal framework for finding wrongdoing under paragraphs 8(d) and 8(e) of the PDSPA. They described this portion of their disclosure as showing that “the Canadian Embassy failed to follow Department policies and that the Canadian Embassy’s actions as well as its omissions may have created the conditions that resulted in ‘a substantial and specific danger to the life, health or safety’” of Mr. Abarca and others. They submitted that there had been a failure to follow “three key policies” relevant to conflicts in extractive industries abroad, and that this failure may have resulted in wrongdoing within the meaning of paragraphs 8(d) and 8(e). Citing the 2014 Values and Ethics Code of the Department of Foreign Affairs and International Trade (as the department was then called), they stated that “[o]ne of the core functions of civil servants is to carry out their duties in accordance with Canadian laws and policies.”
[31] The three “policies” the appellants invoked were the following.
(1) A document published by Global Affairs Canada in 2016 entitled Building the Canadian Advantage: A Corporate Responsibility (CSR) Strategy for the Canadian International Extractive Sector. The appellants quoted from the document a statement that “the government encourages and expects Canadian companies to meet high standards of corporate social responsibility,” as well as a reference to violence-related risk assessment as an “area of particular concern.”
(2) A statement from the department in a 2016 document, and a similar statement made before 2013, that “Canada’s network of missions abroad pursues objectives related to the promotion and protection of the human rights defenders consistent with our human rights agenda.” The appellants commented that this policy was consistent with the United Nations’ Declaration on Human Rights Defenders adopted in 1999 (Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, UNGAOR, 53rd Sess, UN Doc A/RES/53/144 (1999)). But they also noted that the policy in the 2007-2009 period was “very general,” and did not point to a specific source for the policy during that period.
(3) “Specific guidelines” on what Canadian embassies should do when there is a conflict involving the host state, a Canadian mining company, and a local community. These guidelines were included in a statement issued to the Toronto Star in December 2019. They called for embassies, where they learn of allegations of human rights violations by Canadian companies abroad, to “try to play a constructive and helpful role,” and to work to “facilitate an open and informed dialogue between all parties.”
[32] The appellants submitted that there were “clear grounds to investigate whether the failure to implement the three policies … led to a substantial and specific danger to the life, health or safety of persons in the community, including Mariano Abarca, as well as detrimental impacts on the environment.”
[33] The appellants alleged that the Embassy violated the first of these policies when, knowing of the tensions between Blackfire and the local community, and knowing of protests against the mine and of Mr. Abarca’s detention, it failed to investigate the source of the tensions, conduct a violence-related risk assessment, or inquire into whether Blackfire had done so.
[34] The appellants went on to allege that by, among other things, failing to assess the justification for allegations of illicit activities Blackfire levelled against Mr. Abarca, failing to consider issues related to human rights defenders, and taking on the role of advocate for Blackfire’s interests with the government of Chiapas, the Embassy violated departmental policy on human rights defenders. The appellants acknowledged that in the 2007 to 2009 period, “there [did] not appear to have been any precise rules on what Canadian Embassy personnel should do to protect human rights defenders,” but pointed to a statement of policy issued in 2016 for examples of what the Embassy could have done.
[35] The appellants further alleged that rather than facilitating an open and informed dialogue between all parties, in accordance with the third policy they cited, the Embassy acted throughout as an advocate for Blackfire and its economic interests.
[36] The appellants thus alleged that the Embassy violated each of the policies they cited, and that, particularly given the death of Mr. Abarca, these violations amounted, taken together, to a serious breach of a code of conduct. They added that if Embassy officials were under specific instructions to act as they did, then the Commissioner should investigate the officials who gave those instructions.
[37] The appellants then turned again to their allegation of wrongdoing under paragraph 8(d) of the PSDPA (“an act or omission that creates a substantial and specific danger to the life, health or safety of persons”). They alleged that given the Embassy’s close relationships with Blackfire and the governments of Mexico and Chiapas, it could have influenced the course of events had it followed the three policies they enumerated. They stated that the Embassy’s failure to raise concerns with the state of Chiapas about Mr. Abarca’s right of peaceful protest free of threats and intimidation “may well have increased the dangers” (emphasis in original) by encouraging the state to intervene more actively to protect Blackfire’s interests. They characterized as “reckless” the Embassy’s advocacy on behalf of Blackfire while ignoring the dangers to Mr. Abarca, and failing to advocate for greater dialogue. They submitted that the Embassy’s advocacy on behalf of Blackfire with the Chiapas government was an action that created a specific danger to the life and safety of Mr. Abarca, while its failure to raise human rights concerns with Blackfire and the government of Chiapas was an omission with the same effect.
[38] Having completed their submissions under the heading “Breach of policies related to conflicts in the extractive industry,” and set out their view that there was wrongdoing under paragraphs 8(d) and 8(e) of the PSDPA arising from the breach of these policies that should be investigated, the appellants proceeded, under the heading “Duty to report suspected corruption,” to discuss what they submitted was the Embassy’s failure to meet this duty.
[39] In dealing with this subject, the appellants reiterated that public servants have an obligation to carry out their duties in accordance with Canadian laws and policies. They referred in this regard to the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, which, they stated, made it illegal to bribe foreign officials in order to obtain a business benefit. They also noted that under the department’s 2010 Policy and Procedures for Reporting Allegations of Bribery Abroad by Canadians or Canadian Companies, public officials are to report suspected bribery to their headquarters in Ottawa if they “become aware of allegations of corruption or bribery involving Canadian individuals or Canadian companies.”
[40] The appellants stated that what concerned them was that the Embassy did not report to the RCMP allegations that Blackfire had bribed the mayor of Chicomuselo to prevent locals from protesting against and vandalizing the mine until these allegations were published in Canadian newspapers in December 2009. The appellants submitted that the Commissioner should investigate whether the Embassy had knowledge of the payments before then. They posited a number of possible scenarios, some described as “curious” or “very strange,” that might explain what had occurred.
[41] The disclosure then addressed, under a new heading, the Commissioner’s jurisdiction to investigate. The appellants submitted that there were “strong public interest reasons” to investigate, based on both the murder of Mr. Abarca and Canada’s international human rights obligations related to the protection of human rights defenders. Anticipating possible responses by the Commissioner, they also submitted that two of the grounds on which the Commissioner may choose not to investigate set out in section 24 of the PSDPA – insufficient importance (paragraph 24(1)(b)) and the passage of time (paragraph 24(1)(d)) – should not apply.
[42] In their closing comments, the appellants submitted that it was the Commissioner’s responsibility “to look at the values espoused by the Canadian government in order to determine whether specific policies meant to implement those values were followed.”
V. The Commissioner’s decision
[43] In his decision letter, the Commissioner stated that, while his Office had taken the appellants’ allegations very seriously, and had “conducted a thorough review of all of the information [they] provided,” that information did not give him reason to believe that the Embassy had committed wrongdoing as defined in paragraph 8(d) or 8(e) of the PSDPA. Ten times in his 3½-page decision letter, the Commissioner expressly grounded his decision in “the information provided” by the appellants. In one instance, he also stated that his decision was not to investigate “the allegations as [the appellants had] presented them.”
[44] The Commissioner dealt first with the appellants’ allegation that the Embassy had failed to adhere to the “policies” the appellants enumerated, and that this failure both amounted to a serious breach of a code of conduct and created a substantial and specific danger to Mr. Abarca’s life. He found that, “from [his] understanding,” the documents on which the appellants relied were “not official Government of Canada policies and … [did] not appear to prescribe specific actions that should have been taken or not taken by the Embassy at the relevant time.” He further found that, in any event, given that the Embassy’s mandate included assisting Canadian companies abroad, the number and substance of the Embassy’s communications with Blackfire did not appear to contravene these “policies” or otherwise constitute wrongdoing.
[45] The Commissioner went on to state that, based on the information provided by the appellants, it did not appear that the Embassy was obligated to mediate the dispute between Blackfire and its opponents. He acknowledged that some might see the Embassy’s interactions with the opponents of the mine to have been too limited. But, he stated, based on the information provided it could not be said that the Embassy’s actions or inactions relating to the difficulties between Blackfire and the community constituted wrongdoing as defined.
[46] The Commissioner came to a similar conclusion respecting the Embassy’s treatment of human rights concerns. It appeared, he stated, that the Embassy did not ignore these concerns. He noted among other things that the Embassy had sought information about Mr. Abarca’s detention from a number of sources, and had stated that it welcomed the judicial investigation by Mexican authorities into his death. The Commissioner recognized that in the appellants’ view, the Embassy should have made further efforts, but observed that the Embassy would have had no jurisdiction in relation to that investigation or Mexican legal proceedings. The information provided did not suggest, he concluded, that the Embassy’s conduct in this respect contravened the “policies” or amount to wrongdoing.
[47] Having thus concluded that the information the appellants had provided regarding the Embassy’s alleged failure to adhere to “policies” did not suggest that wrongdoing as set out in paragraph 8(d) or 8(e) was committed, the Commissioner turned to the appellants’ allegations regarding the Embassy’s duty to report bribery and corruption.
[48] The Commissioner noted that the appellants’ allegations in this regard relied on a 2010 policy, and that it appeared that the bribery allegations became public in the Mexican press in June 2009 and were reported by the Embassy in December 2009, following Canadian news coverage. He stated that although the appellants “had provided [their beliefs] surrounding what the Embassy may or should have known or done and when, the information provided in this regard [appeared] speculative.” As a result, he stated, it was not clear whether a policy similar to the 2010 policy was in effect at the relevant time. He concluded, considering that the Embassy did report the alleged bribery and corruption, that the information provided was not sufficient to suggest wrongdoing, as defined, on the part of Embassy officials.
[49] The Commissioner also noted that the RCMP had investigated the bribery and corruption allegations and found that the evidence did not support criminal charges. Therefore, he concluded, the information provided concerning the alleged failure to report bribery and corruption did not suggest that wrongdoing was committed within paragraph 8(d) or 8(e).
[50] The Commissioner then set out his overall conclusion: that the appellants’ disclosure did not give him reason to believe that the Embassy had committed wrongdoing as defined in paragraph 8(d) or 8(e). Accordingly, he stated, “the requirements of subsection 33(1) of the Act have not been met and it is not in the public interest to commence an investigation.” This conclusion, he stated, was “consistent with, and reflective of, [his] particular mandate and role under the Act.” Having concluded that the first requirement in subsection 33(1) – reason to believe – was not met, he did not refer to any of the factors listed in subsection 24 (1) that would have given him the discretion to refuse to commence an investigation even if he had found the reason to believe that subsection 33(1) requires.
VI. The Federal Court’s decision
[51] The appellants sought judicial review of the Commissioner’s decision in the Federal Court, arguing that the decision was both unreasonable and procedurally unfair. In support of their application, they filed an affidavit of a lawyer who had participated in the preparation of the appellants’ disclosure. Much of the affidavit consisted of statements of the further information the appellants asserted they could and would have provided if the Commissioner had asked for additional details or documents. The affidavit also appended approximately 450 pages of source documents for the footnotes in the appellants’ disclosure letter – documents that the appellants had not put before the Commissioner. In addition, it set out responses to and critiques of a number of statements in the Commissioner’s decision and the case admissibility analysis the Office of the Commissioner had prepared for him.
[52] As a preliminary matter, the application judge determined that he would disregard those portions of the appellants’ affidavit containing legal argument or information not directly before the Commissioner. In his view, the affidavit did not come within any of the exceptions set out in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras. 19-20, to the general rule that the evidentiary record on judicial review is limited to the record that was before the decision maker. The application judge also observed that the applicants had confused, in the manner identified in Duyvenbode v. Canada (Attorney General), 2009 FCA 120 at para. 3, the purpose of an affidavit with that of counsel’s submissions.
[53] The application judge then addressed the standard of review he should apply to the Commissioner’s decision. He identified the appropriate standard of review of the Commissioner’s decision not to investigate as reasonableness, and stated that evaluating whether procedural fairness had been afforded called for a situational assessment of the procedures and safeguards required. He concluded on the issue of procedural fairness by quoting from this Court’s decision in Gupta v. Canada (Attorney General), 2017 FCA 211 at para. 31. In Gupta, referred to further below, this Court described the scheme of the PSDPA for determining whether an investigation will be conducted as requiring only that
the discloser will submit information and supporting documentation that he or she believes establishes wrongdoing that warrants investigation by the Commissioner, and that the Commissioner will evaluate that information and documentation and decide whether to investigate.
[54] The application judge then turned to consider, applying the reasonableness standard of review, whether the Commissioner’s decision not to investigate was reasonable. He first rejected the appellants’ argument based on the contents of the certificate of record the Office of the Commissioner produced in response to the appellants’ request under rule 317 of the Federal Courts Rules, S.O.R./98-106. The certificate listed, in setting out the materials in the possession of the Commissioner, only three of the many source documents footnoted in, but not provided with, the disclosure letter. This showed, the appellants submitted, that the Commissioner did not review all of the source documents when making his decision. Since the three documents had not been provided with the disclosure letter, the Commissioner must have obtained them himself, and because he produced only the three documents, the appellants argued, he must not have obtained and read any others.
[55] The application judge saw nothing in the certificate of record to indicate that the Commissioner, or the author of the case admissibility analysis the Office of the Commissioner provided to him, may not have examined the documents to which online references were provided in the footnotes. It was not logical or reasonable, he stated, to infer that the Commissioner did not consider these documents. It was possible, the application judge suggested, that these documents were reviewed online and that no paper copies were made.
[56] The application judge went on to conclude that it was reasonable for the Commissioner to find the Embassy had broken no code of conduct. While the appellants had “[pointed] to aspirational documents and policies which were later put in place, they [had] not identified anything which created a legal obligation upon the Embassy to act or not act in a certain manner.” He observed that “[u]ndoubtedly, the [appellants] would have liked the Embassy to have acted in a certain way,” and acknowledged that if it had, “perhaps Mr. Abarca would not have been murdered.” But, he stated, the Commissioner’s decision not to investigate was, in [his] view, reasonable, and “[constituted] an acceptable outcome defensible in respect of the facts and law.” He therefore dismissed the application.
[57] The application judge did not expressly come to a conclusion on the appellants’ allegations of procedural unfairness, though in dismissing the application he implicitly rejected them. However, that is of no practical significance in this appeal, given this Court’s responsibility, discussed immediately below, to review the Commissioner’s decision de novo.
VII. Standard of review of the Federal Court’s decision
[58] As the Supreme Court recently confirmed in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10-12, “[a] reviewing judge’s selection and application of the standard of review is reviewable for correctness.” The question for this Court to determine on appeal from a decision of the Federal Court on judicial review is, accordingly, whether the Federal Court “chose the correct standard of review and applied it correctly.” We are to show no deference to the Federal Court; we are instead to perform what amounts to “a de novo review of the administrative decision,” in effect “stepping into the shoes” of the reviewing judge and focusing on the administrative decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47 (some punctuation omitted); Horrocks at para. 10.
[59] An exception applies where the reviewing judge acts as decision maker of first instance. In that circumstance, the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply: determinations of law are reviewed for correctness, while findings of fact and mixed fact and law (where there is no extricable question of law) are subject to review only on the deferential standard of palpable and overriding error: Horrocks at para. 11; Apotex Inc. v. Canada (Health), 2018 FCA 147 at paras. 57-58, leave to appeal refused, [2019] 1 S.C.R. v; Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 at para. 37, leave to appeal refused, [2016] 1 S.C.R. vii.
VIII. Standard of review of the Commissioner’s decision
[60] As noted above, the application judge determined that reasonableness was the appropriate standard of review of the merits of a decision of the Commissioner not to investigate alleged wrongdoing. The parties agree he was correct in doing so. While his decision was rendered before the Supreme Court recast the law of judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, it is consistent with the presumption set out in Vavilov that, subject only to limited exceptions, reasonableness is the applicable standard when a court reviews the merits of an administrative decision. None of the exceptions apply here.
[61] A court undertaking reasonableness review should not ask how it would have decided the issue, but only whether the decision maker’s decision was reasonable: Vavilov at para. 83. Vavilov now teaches that where a decision maker has given reasons, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras. 78, 85. The decision maker’s reasons should “not be assessed against a standard of perfection”: Vavilov at para 91. In coming to its decision, an administrative decision maker is entitled to draw on its knowledge, experience, and expertise: Vavilov at paras. 92-93; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at paras. 35, 38.
[62] The burden rests with the party challenging a decision to show “that any shortcomings or flaws relied on … are sufficiently central or significant to render the decision unreasonable”: Vavilov at para. 100. Moreover, absent exceptional circumstances, “a reviewing court will not interfere with [the decision maker’s] factual findings. The reviewing court must refrain from ‘reweighing and reassessing the evidence considered by the decision maker’”: Vavilov at para. 125 (internal citations omitted). That said, “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: Vavilov at para. 126.
[63] The application judge also correctly determined that issues of procedural fairness required no consideration of the appropriate standard of review, but instead “an assessment of the procedures and safeguards required in a particular situation.” This determination reflects the current approach of this Court to the standard of review for issues of procedural fairness: see Canadian Pacific Railway Company v. Canada (Transportation Agency), 2021 FCA 69 at paras. 46-47. For want of a better description, the approach is, however, sometimes also referred to as the “correctness standard.”
IX. The issues
[64] The appellants have set out the issues in this appeal in a manner that results in some duplication. Based on the written and oral submissions of the parties and the interveners, and taking into account the applicable standards of review, I would reframe the issues somewhat, and set them out as follows.
(a) Did the Federal Court err in determining that portions of the appellants’ affidavit should be disregarded?
(b) Did the Commissioner fail to provide the appellants procedural fairness?
(c) Should this Court consider the interveners’ international law and Charter arguments in determining whether the Commissioner’s decision was reasonable?
(d) Was the Commissioner’s decision reasonable?
X. Analysis
A. Did the Federal Court err in determining that portions of the appellants’ affidavit should be disregarded?
[65] The application judge’s decision to disregard portions of the appellants’ affidavit