Palmer v. Canada (Attorney General)

Palmer v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-04-12
Neutral citation
2023 FC 529
File numbers
T-1879-18
Decision Content
Date: 20230412
Docket: T-1879-18
Citation: 2023 FC 529
Ottawa, Ontario, April 12, 2023
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
DANNY PALMER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] Danny Palmer, the Applicant, comes before this Court to challenge, on judicial review, the decision of the Security Intelligence Review Committee (hereinafter “SIRC”) to deny having jurisdiction to entertain a complaint he made concerning the Canadian Security Intelligence Service (hereinafter “CSIS”). The judicial review application is made pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F‑7.
I. Introduction [2] Mr. Palmer lost his employment with CSIS in June 2003 by reason of poor performance. He has been litigating that matter, in one fashion or another, ever since. On five occasions he has sought to have SIRC take jurisdiction to review some allegations pursuant to the sections 41 and 42 of the Canadian Security Intelligence Service Act, RSC 1985, c C‑23 [CSIS Act], as they existed at the time of the various complaints made by Mr. Palmer. Sections 41 and 42 were repealed by legislation in 2019.
[3] The provisions which were applicable at the time the Applicant made his five complaints read as follows:
Complaints
Plaintes
41 (1) Any person may make a complaint to the Review Committee with respect to any act or thing done by the Service and the Committee shall, subject to subsection (2), investigate the complaint if
41 (1) Toute personne peut porter plainte contre des activités du Service auprès du comité de surveillance; celui-ci, sous réserve du paragraphe (2), fait enquête à la condition de s’assurer au préalable de ce qui suit :
(a) the complainant has made a complaint to the Director with respect to that act or thing and the complainant has not received a response within such period of time as the Committee considers reasonable or is dissatisfied with the response given; and
a) d’une part, la plainte a été présentée au directeur sans que ce dernier ait répondu dans un délai jugé normal par le comité ou ait fourni une réponse qui satisfasse le plaignant;
(b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.
b) d’autre part, la plainte n’est pas frivole, vexatoire, sans objet ou entachée de mauvaise foi.
Other redress available
Restriction
(2) The Review Committee shall not investigate a complaint in respect of which the complainant is entitled to seek redress by means of a grievance procedure established pursuant to this Act or the Federal Public Sector Labour Relations Act.
(2) Le comité de surveillance ne peut enquêter sur une plainte qui constitue un grief susceptible d’être réglé par la procédure de griefs établie en vertu de la présente loi ou de la Loi sur les relations de travail dans le secteur public fédéral.
Denial of security clearance
Refus d’une habilitation de sécurité
42 (1) Where, by reason only of the denial of a security clearance required by the Government of Canada, a decision is made by a deputy head to deny employment to an individual or to dismiss, demote or transfer an individual or to deny a promotion or transfer to an individual, the deputy head shall send, within ten days after the decision is made, a notice informing the individual of the denial of the security clearance.
42 (1) Les individus qui font l’objet d’une décision de renvoi, de rétrogradation, de mutation ou d’opposition à engagement, avancement ou mutation prise par un administrateur général pour la seule raison du refus d’une habilitation de sécurité que le gouvernement du Canada exige doivent être avisés du refus par l’administrateur général; celui-ci envoie l’avis dans les dix jours suivant la prise de la décision.
…
[…]
Receipt and investigation of complaints
Réception des plaintes et enquêtes
(3) The Review Committee shall receive and investigate a complaint from
(3) Le comité de surveillance reçoit les plaintes et fait enquête sur les plaintes présentées par :
(a) any individual referred to in subsection (1) who has been denied a security clearance; or
a) les individus visés au paragraphe (1) à qui une habilitation de sécurité est refusée;
(b) any person who has been denied a contract to provide goods or services to the Government of Canada by reason only of the denial of a security clearance in respect of that person or any individual.
b) les personnes qui ont fait l’objet d’une décision d’opposition à un contrat de fourniture de biens ou de services pour la seule raison du refus d’une habilitation de sécurité à ces personnes ou à quiconque.
For the sake of completeness, I note that provisions to the same effect are found in the 2019 legislation, the National Security and Intelligence Review Agency Act, SC 2019, c 13, s 2, at sections 16 and 18. The National Security and Intelligence Review Agency was established by the Act and replaced SIRC.
II. The fifth complaint [4] As already noted, this constitutes the fifth complaint against CSIS launched by the Applicant since he was dismissed close to 20 years ago. An appropriate starting point in the Court’s review of the case may be to examine the exact nature of this complaint. I will then outline the other four complaints and their outcome. It will also be necessary to refer to litigation before the Public Service Labour Relations Board, which ended up in this Court on judicial review, to get a more complete picture of this case. It will then be possible to consider more fully the arguments offered by the parties.
[5] The Applicant sent to the Director General of CSIS a long letter on January 2, 2018, complaining about various issues. The letter runs for eight pages. It is said by its author to be his Complaint against the “Canadian Security Intelligence Services (CSIS) pursuant to section 41 of the Canadian Security Intelligence Service Act (CSIS Act)”.
[6] The formal complaint to SIRC, using Form 41 as required, is, for all intents and purposes, identical to the letter of January 2, 2018. The eight-page form is dated February 18, 2018. It relates exclusively to section 41, not section 42, of the then CSIS Act.
[7] The Applicant summarizes his general complaint in the first paragraph. It is then detailed in the following pages.
[8] Mr. Palmer puts up front that the “complaint is in regard to the two physical assaults by a CSIS member” which were followed, claimed the Applicant, by “retributions” which started in 1997 and went on until 2014. He stated that “retributions and psychological harassment” led to his wrongful dismissal, two wrongful denials of his security clearance and defamatory libel by a CSIS spokesperson. Follow the details of the complaint.
[9] The Applicant alleges that he was assaulted in August and October 1997 by his supervisor; he claims that the assaults were as retribution for disclosing within CSIS (he was in British Columbia at the time) the “illegal disclosure of classified information”, in the first instance, and his concern about “operational policy and communication” in the second instance. It appears from the complaint itself that the matter was raised at the time within CSIS in the BC Region. A presentation by a professional consultant on harassment in the workplace followed. Indeed, after the Applicant’s requested transfer to the Quebec Region was completed in July 1998, an investigation was conducted. The Applicant complained about the quality of the investigation.
[10] Mr. Palmer continued to have concerns about incidents that he claimed occurred. According to him, the management in the Quebec Region did not take seriously intelligence he gathered about a foreign intelligence officer who would have been seeking to kidnap or assassinate two persons residing in Canada. Because the Applicant pursued his investigation without authorization, he says that disciplinary measures were initiated based, he says, on a false disciplinary report. The matter was grieved by the Applicant. He states in his complaint that it is unknown if the “foreign intelligence officer” managed to find the two persons who, he claims, were targeted.
[11] The Applicant’s transfer to another area within CSIS in Quebec in April 2001 is presented by him as an additional disciplinary measure. It seems that he considered the transfer as being career limiting. Shortly thereafter, he became concerned about a threat assessment he authored about a student pilot who might want to crash an airplane on a foreign political target in Quebec City during the Summit of the Americas. Mr. Palmer wanted for the threat assessment to be pursued and investigated. Managers at CSIS considered the assessment as far-fetched and an embarrassment, according to the Applicant.
[12] Mr. Palmer continued his complaint’s narrative by referring to a tactic he learned about in the summer of 2001 according to which attempts would be made to force potential sources to work by threatening to leak information to allied agencies or the person’s “home government”. Mr. Palmer disapproved, he says, of those alleged tactics. These allegations resulted in an internal security investigation concerning the Applicant (the details of which are not presented). The Applicant states that he had suspicions that it was in fact “a conduct and discipline investigation, which was really abuse of power for the purpose of harassment and retribution for the complainant’s concern” over the use of the tactic. It appears, according to the complaint, that a one-day suspension ensued; the Applicant grieved the disciplinary measure and the disciplinary measure was reversed “by the Director of CSIS”. Instead, a reprimand was added to his record.
[13] What the Applicant considered psychological harassment continued until his termination, in June 2003, termination that he calls “wrongful”. A supplemental grievance running for 134 pages is said to provide details concerning his termination. It was dated March 2004. The Applicant states that “(t)he corroboration of the report [the grievance] led to the denial of the complainant’s security clearance in May 2007 without justification, other than to cover up the harassment and wrongful dismissal”.
[14] I pause to note that none of the allegations were supported by independent evidence. These are presented because they constitute the allegations made in support of a complaint made to SIRC pursuant to section 41 of the then CSIS Act. What follows is the general allegation made by Mr. Palmer concerning the refusal by CSIS to issue a security clearance at the “Top Secret” level, as Mr. Palmer sought to litigate his dismissal.
III. Litigation before the PSLRB [15] The complaint dedicates numerous paragraphs to the issue of the Applicant’s attempt to litigate his dismissal. His supplemental grievance came in March 2004. It was late. Mr. Palmer’s original grievance about his dismissal was denied by the Director of CSIS on August 5, 2003, less than two months after his termination had become effective. But, Mr. Palmer wanted his supplemental grievance to be considered. He alleged bad faith and disguised discipline on the part of his employer. Because the grievance was out of time, it was refused by CSIS. Mr. Palmer sought to have it adjudicated before the Public Service Labour Relations Board (PSLRB). CSIS argued that the Board did not have jurisdiction because Mr. Palmer had been terminated for cause in relation to performance issues, not for reasons of discipline.
[16] In order to have his supplemental grievance be the subject of adjudication, Mr. Palmer needed an extension of time, which he sought by a letter dated July 14, 2005.
[17] The Board, through its Chairman, Mr. Yvon Tarte, dealt with the matter of the extension of time (2006 PSLRB 9), and not whether the Board had jurisdiction to consider the matter on its merits (para 5). The Board did not address the merits of the supplemental grievance. Mr. Tarte notes that Mr. Palmer did not have a security clearance at the time the matter was before the Board. After reviewing the evidence presented, the Board concluded that, based on the Board’s jurisprudence (Trenholm v Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65), an extension of time could be granted. Thus, the matter was referred to adjudication, together with the Service’s jurisdictional objection according to which the Board could not entertain the grievance as Mr. Palmer had been dismissed by reasons of poor performance, a ground over which the PSLRB did not have jurisdiction. Mr. Tarte was careful to warn the parties about the limits of his finding and the difficulty Mr. Palmer may face concerning the jurisdiction of the Board. He wrote:
[66] As indicated earlier, the merits of Mr. Palmer's contentions were not addressed in any detail at the hearing. I will therefore not make, and need not make, any finding as to the likelihood of success of the applicant's "supplemental" grievance. Mr. Palmer should not find in this decision any indication that he might be successful in the determination of that grievance. The Service's jurisdictional objection will have to be dealt with and, in this regard, given the state of the jurisprudence, Mr. Palmer will not have an easy task.
[18] There was ultimately no adjudication on the merits with respect to the grievance as the matter was settled with the assistance of mediation using the services of the adjudicator. We find in the Certified Tribunal Record (CTR) the actual written settlement signed by Mr. Palmer, his counsel at the time as well as by the CSIS representatives (CTR, pages 101 to 104). The Vice-Chairperson of the PSLRB signed as a witness. The agreement was reached on October 25, 2007. The settlement provides that “(t)he parties agree to settle this matter in its entirety on the terms set out below”. One such term is that the parties release and forever discharge each other from any and all claims relating to Mr. Palmer’s employment with CSIS. But the matter was not left there by Mr. Palmer.
[19] A recurring theme in the years that followed, indeed before this Court, was that Mr. Palmer was denied a security clearance at the Top Secret level for the purpose of litigating the dismissal. He contended that he could not conduct his cross-examination of witnesses without access to documents classified at that level. After Mr. Palmer retained counsel, his lawyer was given a Top Secret security clearance for the purpose of the hearing, and Mr. Palmer received a Secret security clearance which gave him access to a considerable amount of information in a great number of documents. As indicated before, the matter was settled with counsel for Mr. Palmer having had access to all the information and Mr. Palmer having had access to all materials protected at the Secret level. The matter of the supplemental grievance was settled before the merits were ever reached.
[20] Mr. Palmer sought to reopen the settlement close to two years later. He claimed that information obtained in 2008 and 2009 showed that the settlement was the result of fraud and coercion on the part of CSIS. The matter was submitted to the Board on June 5, 2009. We learn from the Board’s ruling that, in accordance with the settlement reached on October 25, 2007, Mr. Palmer withdrew the grievance in December 2007.
[21] In essence, Mr. Palmer argued that he needed a Top Secret security clearance for the adjudication of his grievance and that, according to him, he was advised during the mediation in 2007 (conducted by the adjudicator) by CSIS representatives and the adjudicator that the refusal to grant him the Top Secret clearance would prevent the adjudicator from ordering his return to CSIS. He said that it is only subsequently that he learned that the denial of the security clearance was limited to the adjudication of the grievance, which meant that the adjudicator would not have been prevented from ordering the reintegration. He accused his employer of fraudulently denying him the needed clearance to obstruct the disclosure of the evidence which would have established that his dismissal was not justified.
[22] The first issue was whether the PSLRB had jurisdiction to review a settlement agreement. An adjudicator ruled (2010 PSLRB 11) that the Board had jurisdiction to entertain the argument whether the settlement reached by Mr. Palmer and the employer in October 2007 is valid and binding. She sent the matter for adjudication on its merits.
[23] A different adjudicator considered the matter on its merits (2012 PSLRB 1) and she found that the settlement was valid. She wrote:
[7] Having heard Mr. Palmer’s evidence and reviewed his 11-page letter, I am satisfied that all the facts he raises in support of reviewing the conditions that led to the settlement of his grievance were in existence and known to both him and his counsel at the time of the mediation and the settlement.
[8] I am singularly unpersuaded by the correspondence Mr. Palmer initiated with CSIS through his new counsel, Me Mercure, between July 31, 2008 and May 19, 2009. This correspondence is irrelevant to the issue of having the Board revisit his settlement and reopen his grievance. It does not establish that the settlement is not valid or binding.
[9] At the time of settlement, Mr. Palmer was represented by counsel and his counsel at that time raised the issue of CSIS’ refusal of his Top Secret security clearance and its refusal to disclose to him certain documents that he requested because of a concern regarding his reliability. A settlement was reached even though those issues were still outstanding. The correspondence during 2008 and 2009 merely revisits these same issues.
[10] Based on the evidence presented, I am not convinced that Mr. Palmer was misled or that his consent to the settlement was obtained through false representations, fraud or coercion. Therefore, there was a mutual intention of both competent parties to resolve the grievance with finality. Furthermore, a party to a settlement cannot extricate himself from a valid and binding settlement merely by making allegations of bad faith.
[My emphasis.]
Clearly, the adjudicator found, as a matter of fact, that Mr. Palmer knew about the circumstances that led to his decision to settle his grievance and to withdraw it in accordance with the settlement two months later (in December 2007). The settlement was therefore found to be valid and binding. The Board found “that Mr. Palmer has no further recourse before this Board since the adjudicator is without jurisdiction to determine a grievance once it is withdrawn” (para 14). That took Mr. Palmer to our Court on judicial review of that decision.
[24] Our Court (Boivin J., as he then was) found the decision of the PSLRB reasonable (2013 FC 374). Procedural fairness was not violated. The Court goes through the factual background. We learn that the PSLRB had ordered CSIS to disclose all documents Mr. Palmer thought were relevant. His counsel had access to all of them while the Applicant was restricted in view of his security clearance granted at the level of Secret. However, the said restriction was limited to less than 5% of all the documents disclosed for the hearing before the PSLRB. The hearing before the PSLRB commenced on October 24, 2007, but the parties entered in mediation the same day. The settlement was reached the following day.
[25] It is reported that the hearing before the PSLRB which concluded that the settlement was valid and binding took four days: 7 witnesses (including Mr. Palmer) were heard, 66 exhibits were produced. Three of those exhibits are the briefing notes from CSIS recommending the denial of a Top Secret security clearance to the Applicant because of alleged carelessness and irresponsibility concerning the handling of classified information. The Applicant denied those allegations.
[26] Our Court stated that, in the case before the Court, “the true question is one of facts – specifically, a factual determination of whether the settlement agreement was entered into under fraud or misleading information from CSIS” (at para 31). The Applicant, through his new counsel at the time, offered a number of arguments:
the reasons given by the adjudicator were inadequate;
the adjudicator did not assess the credibility of witnesses and the reliability of the evidence; at any rate, the conclusions reached were unsupported and contradicted by the evidence;
the adjudicator would have indicated during the hearing that she did not see the reason for holding the hearing, which led to the claim of a reasonable apprehension of bias;
the decision rendered was a cursory one;
the Applicant took issue with the adjudicator’s refusal to consider the text of the settlement agreement where she would have found that he did not receive an important settlement, thereby avoiding to pre-judge the matter.
[27] Our Court addressed the arguments offered by Mr. Palmer and rejected them.
[28] The Court states at paragraph 44 that “(t)his is not a case where no reasons were provided when they were required, thus breaching procedural fairness – reasons were provided by the adjudicator, and should therefore be assessed when examining whether the decision is reasonable”. Moreover, there was no evidence in the record to show that there was an indication at the hearing before the PSLRB that there was no need to hold the hearing. The test to establish a reasonable apprehension of bias requires cogent evidence which is not present: “The Court finds that there is no merit to the serious allegation that the adjudicator was biased or had pre-judged the matter” (at para 45).
[29] The argument that the PSLRB rendered a hasty or inadequate decision was specifically addressed by our Court: “To the contrary, the adjudicator’s decision is motivated and does address the key issue of the applicant being misinformed by CSIS before signing the settlement agreement” (at para 47).
[30] While Mr. Palmer tried to fault the adjudicator for refusing to consider the text of the settlement agreement, the Federal Court was of the view that the content of the settlement agreement was never in question. It was irrelevant to the issue of whether the Applicant had been misled into agreeing to settle, or if CSIS acted fraudulently or in bad faith.
[31] As to whether the decision was reasonable, the reasons show that the adjudicator concluded validly that the Applicant and his counsel at the time “were aware of all the facts raised in support of reviewing the conditions which led to the settlement” (at para 49). The Court goes on to state at paragraph 50:
[50] The adjudicator’s reasons address the heart of the applicant’s arguments, which is that he was not aware of certain relevant facts before agreeing to settle, formulated as follows before this Court: that evidence had been reclassified, that CSIS relied on allegations of wrongdoing on his part to deny him Top Secret security clearance, and that the denial of his Top Secret security clearance was for administrative purposes (Applicant’s Record, Memorandum of Fact and Law, Tab 5, p 23). According to the adjudicator, it was clear that the applicant was aware of all these facts when he chose to settle. An examination of the record confirms that this conclusion was certainly one of the possible outcomes justifiable by the facts of this case.
[32] In view of the recurring allegation according to which the Applicant was not aware of the reasons why a Top Secret security clearance for the purpose of the adjudication before the PSLRB was refused, it is necessary to reproduce in their entirety some paragraphs from this Court’s decision in 2013:
[52] While the applicant claims not to have been aware of the allegations against him contained in Exhibits 2, 56 and 57, the Court notes that these allegations were referred to on numerous occasions, many of which were prior to the applicant signing the settlement agreement. For instance, letters addressed to the PSLRB contained references to the applicant’s carelessness in dealing with classified information (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 18, dated October 11, 2005, p 3; Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 19, dated November 2, 2005).
[53] Furthermore, the Court notes that in a letter drafted by the applicant and sent to the PSLRB in March 2006, the applicant clearly expresses his knowledge that CSIS believes that he had shown a disregard to the Security of Information Act, RSC 1985, c O-5, and the Canadian Security Intelligence Service Act, RSC 1985, c C-23, by sending classified documents by fax (Respondent’s Record, Vol 2, Tab 39, pp 174 and 177). The same letter indicates that the applicant was aware that this was the reason why his Top Secret security clearance would not be reinstated. In another letter authored by the applicant, dated November 15, 2006, and addressed to the PSLRB, the applicant clearly set out that he was aware of CSIS’s concerns with classified information he disclosed to the PSLRB (Respondent’ Record, Vol 2, Tab 40, p 183). This correspondence emanating from the applicant pre-dates the settlement agreement. It is therefore farfetched for the applicant to now claim that he did not know why his Top Secret security clearance was denied, and that this lack of knowledge would render the settlement agreement invalid.
[54] The applicant claims he was misled by being told that reinstatement with CSIS would be impossible. Given CSIS’s refusal of the applicant’s Top Secret security clearance, the Court is not convinced that this statement, if it was indeed made at the beginning of negotiations, would have been misleading at the time. What the CSIS’s November 5, 2008 letter indicated is that there would be no impediments to considering the applicant for a Top Secret security clearance in the future, should another government agency require it for employment purposes. Indeed, CSIS will perform a security clearance for its own employees, but CSIS is also responsible for security clearance for all Departments in government, leaving the final decision, in that case, to the Deputy Head of the Department. However, the letter stressed that, in the absence of such request, the investigation will not be triggered. (Applicant’s Record, Affidavit of Danny Palmer, Tab 3, Appendix 15). The applicant himself recognized that a Top Secret security clearance is a prerequisite for employment with CSIS (Respondent’s Record, Vol 2, Tab 40, pp 182-183). It was therefore open to the adjudicator to conclude that CSIS did not mislead the applicant.
[My emphasis.]
[33] There can be no doubt, in my view, that the matter of the Applicant’s grievance of his dismissal was the subject of litigation before the PSLRB and before our Court. The March 2004 grievance made by the Applicant was the subject of a settlement in October 2007, resulting in the withdrawal of the said grievance. When the Applicant sought to reopen the settlement agreement in 2009, the matter was allowed to go to adjudication before the PSLRB which concluded that the agreement was valid and binding. On judicial review, these allegations about the settlement agreement being entered into under fraud or misleading information concerning the refusal of the security clearance were equally rejected by our Court. The security clearance issue has been heard and decided. The decision of the PSLRB and the decision of our Court on the issue were final. The continuing reliance on this issue by the Applicant is mistaken. We read at paragraph 58 of this Court’s decision in 2013:
[58] There is no evidence in the record before this Court supporting the conclusion that CSIS would have misled the applicant or coerced him into signing the settlement agreement. Having reasonably concluded that the settlement agreement was valid and binding, including the withdrawal of the grievance, the adjudicator was correct in subsequently concluding that she did not have jurisdiction to examine the applicant’s grievance.
IV. Previous complaints to the Security Intelligence Review Committee [34] That takes us to a series of complaints made by Mr. Palmer to SIRC, starting in 2004.
[35] On June 7, 2004, one year after his dismissal, the Applicant submitted his first complaint pursuant to section 41 of the CSIS Act, the first of which was that he was wrongfully dismissed for “weak performance” and CSIS was not accepting his supplemental grievance. On October 25, 2004, SIRC determined that Mr. Palmer “had been entitled to seek redress by means of a grievance procedure under the CSIS Act for your complaint”. By application of section 41(2) of the CSIS Act, SIRC does not have jurisdiction.
[36] A second complaint, this time pursuant to sections 41 and 42 of the CSIS Act, was made on January 30, 2007. As for the section 41 complaint, Mr. Palmer challenges the scope of the disclosure made by CSIS in the PSLRB proceedings; he also impugns CSIS’ failure to administer a polygraph test allegedly owed to him. He complains about the security clearance at the Top Secret level that CSIS refuses to grant him. Mr. Palmer argues that CSIS uses the security clearance program “to conceal evidence and obstruct justice by denying the reinstatement of my Top Secret security clearance and access to Top Secret documents for evidence”. The section 42 complaint relates to the denial of the security clearance.
[37] On May 25, 2007, SIRC dismisses the section 42 complaint. It explains that the jurisdiction is limited to situations where, by reason only of the denial of a required security clearance, a decision is made by a deputy head to deny employment, or to dismiss, demote or transfer an individual or to deny a promotion or transfer an individual. That is not one of the situations involving Mr. Palmer, whose security clearance at the Top Secret level was denied after his employment with CSIS had ceased. That does not constitute one of the situations described at section 42.
[38] The complaint pursuant to section 41 was dealt with on August 22, 2007, where SIRC concludes that it does not have jurisdiction. It states that the issue of inadequate disclosure before the PSLRB is one for the PSLRB, as SIRC does not have jurisdiction over those proceedings. Indeed the PSLRB has the explicit authority to compel the production of documents. Furthermore, the failure to perform a polygraph is not a matter over which SIRC was given jurisdiction as this does not constitute “an act or thing done by the Service”, pursuant to section 41(1) of the CSIS Act.
[39] A third complaint pursuant to section 41 came on August 9, 2009. This one impugns the denial of the security clearance of 2007 and challenges the validity of the settlement agreement of October 2007. Mr. Palmer alleges that the settlement was based on fraudulent misrepresentation by CSIS representatives. Moreover, he makes allegations about the reasons for his dismissal. By letter dated December 22, 2009, SIRC, once again, determines that it does not have jurisdiction over the matter raised by the Applicant. Given that the CSIS Act gives the Director of CSIS the exclusive authority over the human resources management and the presentation, consideration and adjudication of grievances, SIRC finds that this third complaint “arises from, and is within the context of the grievance process and that the allegations raised in your complaint are the same allegations as those raised in your letter dated May 31, 2009 to the Public Service Labour Relations Board”.
[40] On May 11, 2013, Mr. Palmer tried to revive his section 41 complaint relative to the denial of his request for a Top Secret security clearance. The document runs for eight pages, starting with Mr. Palmer’s first grievance about his dismissal rejected by the CSIS Director in August 2003 and discussing at length the refusal to grant him the Top Secret security clearance for the adjudication before the PSLRB, to the post-settlement attempt to reopen the said settlement. At page 6 of 8, one reads:
As a result of the above-mentioned facts I submit that this complaint is well founded.
As I continue to be denied access to the denial briefs dated 2007, 2010 and 2011, I request that the SIRC obtain them and review the selective and arbitrary process followed by CSIS in denying my clearance and in shielding that denial from scrutiny by the SIRC. I note that at no time was I given the opportunity to respond to the allegations therein.
The attempt at reopening the complaint was rejected on September 3, 2013 in the following terms:
On October 25, 2004, May 25, 2007, August 22, 2007 and December 22, 2009, SIRC wrote either to yourself or to your counsel to advise that, after conducting preliminary reviews of your various complaints, SIRC had no jurisdiction to investigate them. The reasons for these determinations were provided in these letters to you. We have taken your recent request very seriously and have reviewed your recent correspondence in light of the past determinations in relation to your files. I regret to inform you that SIRC does not see any new information which would warrant a reconsideration of the SIRC’s position on its jurisdiction to investigate. Therefore, SIRC’s files with respect to your complaints will remain closed.
[41] A fourth complaint came on July 3, 2015, this one relative to sections 41 and 42.
[42] The section 41 complaint related to an alleged breach of its own security policy by CSIS in that it was careless in handling what CSIS deemed secret and top secret documents entered in evidence before this Court in a case involving the Applicant. Mr. Palmer alleged that, through that carelessness, unfettered access to classified documents was allowed. That resulted in two articles being published in the media. When reached by the journalist, a CSIS spokesperson made comments which Mr. Palmer felt resulted in his reputation being tarnished. SIRC, once again, found it did not have jurisdiction under section 41(1). The decision letter of March 15, 2016 provides:
After a preliminary review, the Committee found that your allegation with respect to disclosure involved a specific proceeding which was wholly before the Federal Court of Canada. The Federal Court of Canada has jurisdiction to rule on the admissibility of evidence before it as well as on disclosure matters. As such the Committee does not have jurisdiction to investigate this allegation. The Committee also found that your complaint regarding the statements that would have been made by the CSIS spokesperson does not constitute an “act or thing done by the Service” as per section 41 of the CSIS Act. Consequently the Committee is without jurisdiction to investigate this matter.
[43] The section 42 complaint related again to the denial of the security clearance. The same reason given concerning a prior complaint (the second complaint) to explain the lack of jurisdiction was repeated:
Your dismissal of July 2, 2003 was grounded in poor performance and not in a denial of a security clearance. Your current complaint involves the denial of your request to obtain a security clearance to access documents in the context of litigation which followed that dismissal. As the denial of your request did not result in any dismissal or denial of employment, the requirements of section 42 of the CSIS Act have not been met and the Committee is thus without jurisdiction. As such, please be advised that the Committee’s file with respect to your section 42 complaint has been closed.
[44] All SIRC decisions are final. Only the SIRC decisions concerning the 4th complaint, both decisions dated March 15, 2016, were made the subject of a notice of application for judicial review before the Federal Court. The notice of application was filed on February 16, 2017 (T‑210‑17). Being filed beyond the required period of time following the decision an applicant wants to challenge, Mr. Palmer sought an extension of time. His motion for extension of time was dismissed by our Court, with costs. O’Reilly J. found “that Mr. Palmer has presented little evidence or argument that his application has merit, that his application would not prejudice the AGC, or that there is a reasonable explanation for the delay”. The four-part test for an extension of time was not met. Mr. Palmer asked the Court to reconsider its decision, thus relying on rule 397(1) of the Federal Courts Rules. The motion for reconsideration was dismissed as well, with costs, as Mr. Justice O’Reilly was “unable to identify any material that I overlooked”. An appeal to the Federal Court of Appeal (A‑292‑17) was dismissed with costs, “the appellant having failed to provide a reasonable explanation for his inaction and to propose a timetable for the remainder of the proceedings and having conceded in his representations that the subject matter of the appeal has become moot”.
[45] Thus, the previous decisions of SIRC were never validly challenged and they stand.
V. The reasons for the rejection of the 5th complaint [46] SIRC disposed of the latest complaint in a fashion similar to the other four complaints: it was dismissed. It concluded that it does not have jurisdiction to investigate the complaint. However, before making that determination, SIRC sought submissions from the parties on its jurisdiction to entertain the complaint on March 12, 2018. Mr. Palmer did not address in his submissions of April 12, 2018 (CTR, p 106) the obstacle that constitutes section 41(2) of the CSIS Act. Instead, he repeated the allegations made, affirming that his complaint is not trivial, frivolous or vexatious, or made in bad faith.
[47] Mr. Palmer also commented that he could not seek redress by means of a grievance as the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 (FPSLRA) could not apply to him. The Applicant came back, again, to the denial of the security clearance, which he claimed was wrongfully denied. There was no acknowledgement that the matter had been litigated before the PSLRB and this Court.
[48] There were also general allegations that “(t)he Service wilfully succeeded to obstruct, pervert and defeat the course of justice by three wrongful denials of the complainant’s Top Secret security clearance. The security clearance denials were to prevent the disclosure of evidence as cited in the complaint that involved criminal negligence, death threats, extortion, breach of duty and trust and other wrong-doings” (p 6 of 7). These appear to relate directly to the specific allegations in previous grievances. The Applicant concludes his submissions on SIRC’s jurisdiction by stating that “(t)he complaint could not be brought to the FPLRB for the complainant is no longer without [sic] the 30-day limit and the acts within the complaint did not result in disciplinary measures against the complainant… Given the current political climate on harassment, the complainant believes that SIRC would take harassment that included physical assaults and compromised national security, seriously, as well as the harassment practices had continued from 2007 to 2014 with the clearance denials and the libel of the CSIS spokesperson” (p 7 of 7).
[49] Surprisingly, in my view, the Applicant never addresses section 41(2) of the CSIS Act which, repeatedly, had been raised by SIRC as a bar to exercising jurisdiction: it “shall not investigate a complaint in respect of which the complainant is entitled to seek redress by means of a grievance procedure established pursuant to this Act…” If the matter is one that can be the subject of a grievance, SIRC is prohibited by legislation from investigating it.
[50] CSIS provided its view on the jurisdiction issue by a letter dated April 16, 2018 (CTR, p 17). The fift