PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Christopher Hughes is a former employee of the Canada Border Services Agency (CBSA). He left that employment in September of 2004.
[2] On November 22, 2006, Mr. Hughes made a written complaint to the Corporate Security and Internal Affairs Division of the CBSA (internal affairs division) asking that ten CBSA officials be investigated. In brief, Mr. Hughes asked that:
• M.R. be investigated for unethical conduct and for retaliating against Mr. Hughes after he had filed a staffing complaint. This conduct is said to have led to many legal actions and wasted public money.
• D.K. be investigated for blacklisting Mr. Hughes, discrimination, retaliation, and illegal staffing in order to prevent Mr. Hughes from being hired.
• T.B., T.K., and K.P. be investigated for retaliation after Mr. Hughes filed a human rights complaint. That retaliation allegedly took the form of refusing to give Mr. Hughes employment references. Additionally, T.B., and possibly others, improperly influenced a hiring process. T.B. is also said to have made false promises in order to induce a person to work in a remote port.
• B.M. be investigated to see what involvement, if any, he had in what was "going on in his office” and because he may have failed to investigate the conduct of S.R.
• S.R. be investigated for a possible breach of the duty of loyalty in that she publicly criticized, on the internet, the government or government officials. She is also alleged to have "quasi" stalked Mr. Hughes in a public area.
• B.D. be investigated for failing to stop illegal contracts and failing to make proper management decisions to either investigate the blacklisting of Mr. Hughes or to mediate the dispute in a cost-effective way. This inaction is said to have caused public funds to have been improperly spent.
• B.L. be investigated for blacklisting, breach of confidentiality (commenting about Mr. Hughes’ health issues), and unprofessional conduct (mocking Mr. Hughes and treating him with disrespect at a fact-finding meeting). She or B.M. is said to have then hired a Commissionaire to prevent Mr. Hughes from entering the local CBSA office. B.L. also allegedly caused Mr. Hughes' picture to be posted and told employees to be on the watch for him. This conduct, according to Mr. Hughes, may have violated the Privacy Act.
• M.N. be investigated for fixing an employment selection process.
[3] The internal affairs division responded to Mr. Hughes' complaint by letter dated February 28, 2007. In material part, the letter advised Mr. Hughes that:
I have reviewed the issues you have brought forward and the [internal affairs division] will not be initiating any investigation in regard to the issues surrounding the staffing process identified. Our role is to review the conduct of employees amidst allegations of criminal misconduct and serious breaches of [CBSA] policy. Staffing processes are governed by legislation and policy, which fall under the responsibility of the Public Service Commission. I understand you have exercised your right to have the staffing process judicially reviewed before the Federal Court, which is the best forum to provide an appropriate remedy, if one is required.
In regard to the issue of the Internet postings, I have requested a further investigation of this issue and I assure you that any findings will be reported to the appropriate management authority.
[4] Mr. Hughes now brings this application for judicial review of that decision. He seeks an order of mandamus "quashing the decision and ordering CBSA to properly investigate all allegations of misconduct."
[5] This application is dismissed because Mr. Hughes has failed to establish two of the elements that must be satisfied before mandamus can issue. Specifically, he has failed to establish that there was a public legal duty to act upon his complaint and failed to establish that any public duty was owed to him.
[6] Mr. Hughes also sought, in his memorandum of fact and law, alternate relief in the form of an order setting aside the decision and referring it back to the internal affairs division for redetermination with directions. This relief is denied because Mr. Hughes bases his application on a draft, internal CBSA policy that lacks the force of law.
The Draft CBSA Security Manual
[7] Mr. Hughes argues, at paragraph 25 of his written submissions, that sections 11.1 and 12 of the Financial Administration Act, R.S.C. 1985, c. F-11, and "various Treasury Board and CBSA policies give CBSA legal authority to investigate and discipline its employees." Relevant sections from the Financial Administration Act are set out in the appendix to these reasons. None deal expressly with the CBSA.
[8] The only policy specifically referred to by Mr. Hughes in his written argument is the draft of chapter 17 of the CBSA Security Manual entitled "Policy - Internal Investigations of Alleged or Suspected Employee Misconduct" (Security Manual). While Mr. Hughes also refers in his submissions to the CBSA Code of Conduct and the Treasury Board of Canada Secretariat (Treasury Board) document "Values and Ethics Code for the Public Service", the only policy he relies upon as a source for the internal affairs division’s investigatory authority is the Security Manual.
[9] This position is consistent with the evidence of the Director of the internal affairs division (Director) that:
3. There is no statutory obligation upon the [internal affairs division] to investigate any particular type of complaint. The [internal affairs division]’s mandate is derived solely from policy, namely, Chapter 17 of the CBSA Security Policy (the “Security Policy”).
4. Chapter 17 of the Security Policy is titled “Internal Investigations into Alleged or Suspected Employee Misconduct”, a copy of which is attached hereto as Exhibit “A” to this my Affidavit. This is the document the [internal affairs division] considers as establishing its mandate, which is generally to investigate misconduct of a criminal nature or a serious breach of CBSA policy.
[...]
11. There are no other policies or manuals that govern [internal affairs division]’s mandate.
[10] The Director also confirmed that the Security Manual is a draft document because the CBSA was only created in 2003. The Security Manual is to be finalized as soon as possible.
[11] The Director was not cross-examined on his evidence, and I accept it to accurately describe the origin and status of the Security Manual. Specifically, I accept that there is no statutory obligation upon internal affairs to investigate staff complaints and that the mandate of internal affairs is set out in the Security Manual.
The Legal Effect to be given to the Security Manual
[12] Historically, "policy directives, whether made pursuant to regulatory authority or general administrative capacity, are no more than directions and are unenforceable by members of the public." See: Mohammad v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 363 (C.A.) at page 372.
[13] At present, the treatment of internal policies such as found in the Security Manual is more nuanced. The Court considers the intent and context in which policies are issued. This is reflected in the following decisions of the Court.
[14] In Girard v. Canada (1994), 79 F.T.R. 219 (T.D.), a claim for damages was made for an alleged breach of a Treasury Board policy, which provided that persons hired on a contract basis who completed five years of continuous service would be made permanent employees. The claim was dismissed. Justice Rouleau made the following comments regarding the effect of the Treasury Board policy:
36. In Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (No. 1), [1978] 1 S.C.R. 118, the Supreme Court had to consider the nature and consequences that might result from a directive creating certain rules of procedure intended to apply to the imposition of penalties by disciplinary boards at the Matsqui Institution. As Pigeon J., speaking for a majority of five judges, explained at 129:
I have no doubt that the regulations are law. The statute provides for sanction by fine or imprisonment . . .
I do not think the same can be said of the directives. It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature.
37. A directive or policy does not have the force of law because it lacks the essential features of a regulation. The courts clearly do not intervene to enforce a rule which they consider to be essentially administrative in nature and scope.
38. In the case at bar the administrative policy is simply an internal rule of conduct made by the Treasury Board. It was established under a general power enjoyed by the Board under s. 11(2) of the Financial Administration Act, R.S.C. 1985, c. F-11. Although s. 10(f) gives the Treasury Board the power to make regulations "for any other purposes necessary for the efficient administration of the public service of Canada", those concerned chose to proceed by way of a statement of policy. [emphasis added]
[15] In Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220 (F.C.), a grievance was based upon the failure of the decision-maker to treat two Treasury Board policies regarding indeterminate employment as legally binding. Justice Strayer noted, at paragraph 11 of his reasons, that whether the policies created legal rights that a court could define or enforce depended upon the intent and context in which the policies were issued. After considering the content of the policies and the context surrounding their development, Justice Strayer found no indication that the policies were intended to be treated as a law conferring a term appointment on the applicant.
[16] In Glowinski v. Canada (Treasury Board) (2006), 286 F.T.R. 217 (F.C.), the applicant sought judicial review of a decision by the Treasury Board and Industry Canada that he was an employee in the public service. There were a "multitude" of different Treasury Board policies that defined "employee" in inconsistent ways. Justice Kelen noted that, generally speaking, such policies are not legally binding unless the enabling statute requires a department to issue the policy. Thus, he noted that in Gingras v. Canada, [1994] 2 F.C. 734 (C.A.), effect was given to a Treasury Board policy entitled "Bilingualism Bonus Plan" where the policy was precise, conferred a benefit, and left no discretion to government departments. On the facts before him, Justice Kelen concluded that he should not interpret or reconcile the inconsistent Treasury Board policies and that he should not give legal effect to them. Justice Kelen agreed with Justice Rouleau in Girard that, if the Treasury Board had intended the policies to have legal effect, the Treasury Board would have exercised its right to enact the policies by way of regulation.
[17] Applying those principles to the Security Manual in this case, my first observation is that the policy is a draft document. The Director's evidence to this effect is consistent with the content of Exhibit G to Mr. Hughes' affidavit, which is a report printed from the CBSA's website about workplace investigations. The report notes that the internal affairs division "is currently developing a suite of security policies for the CBSA" and that the new policies "will supplement the broader" Government Security Policy.
[18] My second observation is that the broader Government Security Policy, which the future CBSA security policies are intended to supplement, is itself a policy issued by the Treasury Board and does not have the force of a regulation.
[19] The Financial Administration Act provides that:
• the Treasury Board is responsible for all matters relating to human resources management in the federal public administration (paragraph 7(1)(e));
• the Treasury Board may make regulations for any purpose necessary for the effective administration of the federal public administration (subsection 10(f));
• in the exercise of its human resources management responsibilities, the Treasury Board may establish policies or directives respecting the disclosure by persons employed in the public service of information concerning wrongdoing in the public service (paragraph 11.1(1)(h)); and
• the "public service" includes the CBSA (subsection 11(1) and Schedule IV).
[20] As stated above, the Treasury Board's Government Security Policy is not contained in a regulation and, indeed, the Financial Administration Act contemplates that the disclosure by public servants of allegations of wrongdoing will be dealt with by way of policy.
[21] With respect to the Security Manual itself, the Security Manual does not confer any benefit or create any entitlement. This makes the situation distinguishable from that considered in Gringras. No Act or regulation has been identified that requires the CBSA to issue the policy embodied in the Security Manual. The unchallenged evidence before the Court is that there is no statutory obligation upon the internal affairs division to investigate any type of complaint. The Security Manual, which establishes and governs the mandate of the internal affairs division, is simply a matter of policy.
[22] Taking all of these considerations into account, I find that Mr. Hughes has failed to demonstrate that Parliament intended the Security Manual to be given the force of law. Neither the content of the Security Manual, nor the context in which it came into being (as a draft), support the view that Parliament intended it to have legal effect. Accordingly, the Court will not enforce what is an administrative policy.
[23] Before leaving this issue, I have considered the decision of this Court in Myers v. Canada (Attorney General), [2007] F.C.J. No. 1246 (QL), which is relied upon by Mr. Hughes. In that case, Justice Kelen gave legal effect to the Government Security Policy. However, the evidence before Justice Kelen was that the relevant agency, the Canada Revenue Agency, had entered into a memorandum of understanding with the Treasury Board, whereby the Canada Revenue Agency agreed to be subject to the provisions of the Government Security Policy. There is no similar evidence before the Court on this application, and the Myers decision is distinguishable on that basis.
[24] This conclusion is sufficient to dispose of the application. However, for completeness, I think it prudent to deal with the relief sought by Mr. Hughes in his notice of application.
Mandamus
[25] In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), the Federal Court of Appeal listed the principal requirements that must be satisfied before mandamus will issue. Two of those requirements are that there be a public legal duty to act and that the duty be owed to the applicant. See: Apotex at paragraph 45.
[26] In the present case, I have found the Security Manual not to have any legal force or effect. It follows that the Security Manual does not create any legally enforceable duty on the part of the internal affairs division to act on Mr. Hughes' complaint.
[27] Even if a legally enforceable duty to investigate existed, before mandamus could issue, Mr. Hughes would have to establish that the duty in question was owed to members of the general public. A duty owed to the Crown will not support the issuance of mandamus. See: Secunda Marine Services Ltd. v. Canada (Minister of Supply and Services) (1989), 27 F.T.R. 161 (T.D.), and Rothmans of Pall Mall Canada Ltd. v. Canada (Minister of National Revenue), [1976] 2 F.C. 500 (C.A.).
[28] The policy objective of the Security Manual is to ensure that allegations or suspicions of employee misconduct are promptly reported and investigated. This is said, in Exhibit G to Mr. Hughes’ affidavit, to ensure that the professional responsibility of the staff and the integrity of CBSA operations are protected.
[29] I find, therefore, that the purpose of the Security Manual is not to provide a benefit to any particular person, but rather to provide for the better management of the CBSA. As such, there is no duty owed to Mr. Hughes.
Costs
[30] Both sides sought costs if successful. I see no reason why costs should not follow the event.
[31] As to the quantum of such costs, I fix them in the lump sum amount of $1,700.00. This reflects consideration of Rule 407 and items 2, 13 and 14 of the table to Tariff B of the Federal Courts Rules, SOR/98-106.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
2. Mr. Hughes shall pay to the Attorney General costs, fixed in the amount of $1,700.00, all-inclusive.
Judge
APPENDIX
Subsection 7(1) and sections 11, 11.1 and 12 of the Financial Administration Act read as follows:
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-511-07
STYLE OF CAUSE: CHRIS HUGHES V. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: VANCOUVER, B.C.
APPEARANCES:
SELF-REPRESENTED FOR THE APPLICANT
MR. GRAHAM STARK FOR THE RESPONDENT
SOLICITORS OF RECORD:
SELF-REPRESENTED FOR THE APPLICANT
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA