Date: 20150202

Docket: A-110-14

Citation: 2015 FCA 29

CORAM :	NADON J.A. GAUTHIER J.A. SCOTT J.A.
BETWEEN:
YACINE AGNAOU
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent

Heard at Montréal, Quebec, on October 9 and 22, 2014.

Judgment delivered at Ottawa, Ontario, on February 2, 2015.

REASONS FOR JUDGMENT BY:	GAUTHIER J.A.
CONCURRED IN BY:	NADON J.A. SCOTT J.A.

 

Date: 20150202

Docket: A-110-14

Citation: 2015 FCA 29

CORAM:	NADON J.A. GAUTHIER J.A. SCOTT J.A.
BETWEEN:
YACINE AGNAOU
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent

REASONS FOR JUDGMENT

GAUTHIER J.A.

[1]               This is an appeal from a decision of Justice Annis of the Federal Court dismissing the application for judicial review filed by Yacine Agnaou (the appellant) against a decision of the Deputy Public Sector Integrity Commissioner (DPSIC) declaring her reprisal complaint inadmissible because it was beyond his jurisdiction. According to the DPSIC, the appellant had not established that her employer was aware of a protected disclosure before it took the action at issue in the complaint before him: see paragraph 19.3(1)(c) of the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (the Act).

[2]               For the reasons that follow, I would allow the appeal and declare the appellant’s reprisal complaint to be admissible.  

I.                   Facts

[3]               On October 13, 2011, the appellant filed a disclosure dated October 12, 2011, (section 13 of the Act) with the Office of the Public Sector Integrity Commissioner of Canada (the Office) alleging that several managers in the Public Prosecution Service of Canada (PPSC) had committed wrongdoings, more specifically, a gross mismanagement in the public sector within the meaning of paragraph 8(c) of the Act.

[4]               The relevant facts of this disclosure are summarized in the reasons of my colleague Justice Scott in docket A-109-14, published under neutral citation 2015 FCA 30 (Agnaou #1) and heard at the same time as this appeal.

[5]               There is no need for me to address these facts in detail. It is enough to state that the appellant was, at the relevant time, a Crown prosecutor. He was in charge of a file described simply as File A (a tax case involving a multinational corporation). He submits that after some third parties intervened, certain PPSC managers decided to close the file before he had even completed his prosecution report. As he had recommended filing criminal proceedings, these same public servants then allegedly tried to [translation] “legitimize” their decision through an unusual procedure. In the end, they disregarded his opinion that the public interest demanded instituting criminal proceedings against A, thereby violating the PPSC’s internal policy. According to the appellant, that policy reflects a constitutional principle, recognized by the Supreme Court of Canada, to the effect that the decision whether to institute criminal proceedings is up to the Crown prosecutor, who must make this decision objectively and independently (see Appeal Book [A.B.] at pages 132-167).

[6]               After June 29, 2009, the appellant no longer worked as a Crown prosecutor. In July 2009, he was placed in a pool of candidates, and as of November 2010, he had a priority entitlement to a position at the LA-2B level.

[7]               In his reprisal complaint dated January 5, 2013, and filed with the Office on January 7, 2013, the appellant alleges that senior officials at the PPSC refused to appoint him to an LA-2B position because he had made a protected disclosure within the meaning of the Act.

[8]               Among other things, the appellant states in his complaint that the PPSC reclassified two advertised positions that had to be staffed from the same candidate pool he was in, after being informed that the appellant intended to exercise his priority entitlement. According to the appellant, the PPSC confirmed that it intended to reclassify the positions on the first working day after the DPSIC refused to investigate his disclosure dated October 13, 2011. In fact, according to the DPSIC, the decision not to prosecute resulted from a balanced and informed decision-making process, so it would be inappropriate to commence an investigation (paragraphs 24(1)(e) and (f) of the Act).

[9]               The complaint was initially assigned to an analyst responsible for ensuring that the Commission had all the necessary information to determine whether the complaint could be dealt with under the Act (section 19 of the Act). It should be noted that it is only after such a review has been completed that a complaint is considered to be accepted for filing and that the time limit provided under the Act (15 days) for determining whether it may be dealt with begins to run.

[10]           Since the appellant’s complaint relies on extensive documentation filed in support of his disclosure dated October 13, 2011 (a 36-page memorandum with 86 appendices), the analyst asked him to state at what time and how he made the protected disclosure that in his view prompted the measures described in his complaint.

[11]           It is appropriate to note at this point that the protected disclosure dated October 13, 2011 (section 18 of the Act), was confidential, and since the Commissioner had decided not to investigate, the Office did not notify the PPSC of the disclosure.

[12]           That said, the appellant was well aware that the Act provided for an internal disclosure process under section 12 of the Act.

[13]           In a letter dated January 21, 2013, following a conversation with the appellant, the analyst

                                               (i)      stated that because the Commissioner knew several of the managers involved, it would be the DPSIC, who did not know the managers, and not the Commissioner who would decide whether the complaint was admissible;

                                             (ii)      confirmed that his role at that stage was not to review all the documentation in the file, and that the appellant had to list and provide all the supporting documents required to analyze his complaint;

                                           (iii)      confirmed that the appellant can be protected from reprisals if they relate to an internal disclosure under section 12 of the Act rather than to one under section 13; and

                                           (iv)      explained the process to be followed and clearly stated that the appellant would not be asked to comment on the analyst’s admissibility report until a decision had been made.

[14]           In his response to the January 21 letter, the appellant told the analyst that he needed to read paragraphs 54 and 55 of his 36-page memorandum, as well as appendices 42 and 43 (emails dated April 1 and 2, 2009, sent to his immediate supervisor), which in his view could constitute a disclosure within the meaning of section 12 of the Act.

[15]           After the analyst confirmed that the information provided was sufficient to review whether the complaint could be dealt with, he sent the file to another analyst to conduct this review. In accordance with the Office’s usual procedure, the in-house legal counsel assigned to this complaint was also involved before submitting an analysis report and a recommendation to the DPSIC.

[16]           On February 12, 2013, the DPSIC informed the appellant that he would not be initiating an investigation because in his view, as I have already mentioned, the complaint was beyond his jurisdiction. Indeed, the DPSIC explained that the events described in the complaint did not meet the definition of “reprisal” under section 2 of the Act, which contains two conditions, namely:

                                                        (i)      that the public servant was subjected to a disciplinary measure, a demotion, a termination of employment or anything that adversely affects his or her employment or working conditions; and

                                                      (ii)      that those measures were taken against the public servant because he or she made a protected disclosure within the meaning of the Act.

[17]           The DPSIC concluded that the complaint concerns measures that could [translation] “constitute a reprisal measure, as defined in section 2 of the Act” (first condition).

[18]           However, with regard to the second condition, the DPSIC stated that the email dated April 2, 2009, made [translation] “no mention of a disclosure, of wrongdoings as defined in section 8 of the Act, of the Act itself or of any organization whatsoever. Everything remains to be determined and decided. Accordingly, the contents of this email could not constitute an internal disclosure within the meaning of section 12 of the Act” (A.B., page 729).

[19]           The DPSIC also noted that the Office had not notified the PPSC of the disclosure filed on October 13, 2011, and that the appellant [translation] “has not shown how [his] managers could have been aware of its existence” [emphasis added].

[20]           In light of the preceding, the DPSIC concluded as follows:

[translation]

As you have not shown that the reprisal measure allegedly taken against you stemmed from a protected disclosure, I conclude that the second condition under section 2 of the Act has not been met.

[21]           He therefore refused [translation] “to deal with [the] complaint under paragraph 19.3(1)(c) of the Act because there is no connection between your protected disclosure and the reprisal measure allegedly taken against you” (see A.B., pages 729 to 730).

II.                Federal Court decision

[22]           The judge’s reasons for decision are brief. The judge had already dismissed the application for judicial review of the decision not to initiate an investigation as a result of the disclosure of wrongdoing filed on October 13, 2011 (docket T-1823-12). He relied on the reasons in that case, published under neutral citation 2014 FC 86 (Agnaou #1 FC), and rejected the appellant’s arguments to the effect that there had been a breach of procedural fairness, as the arguments were essentially the same.

[23]           The judge agreed with the DPSIC’s interpretation of the email dated April 2, 2009, and found that the email did not constitute an internal disclosure of wrongdoing. He added that the emails from April 1, 3 and 7, 2009, which the appellant had emphasized in court, added nothing on this point.

[24]           The judge essentially concluded as follows at paragraph 17 of his reasons:

Given that there was no wrongdoing or disclosure, I find that the OPSIC’s decision to refuse to deal with the applicant’s complaint was completely reasonable.

III.             Statutory provisions

[25]           I will reproduce below the most relevant definitions in the Act. Other provisions to which I refer are also reproduced in Appendix A:

IV.             Analysis

A.                Standards of review

[26]           In an appeal from a Federal Court decision on an application for judicial review, this Court must determine whether the judge applied the appropriate standard of review to each issue and whether the judge applied it correctly. As the Supreme Court of Canada stated in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraph 46, what this means in practice is that this Court “‘[steps] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision”. Accordingly, there is no need to discuss the errors that the judge allegedly made, as outlined in the appellant’s own analysis of the facts relevant to the complaint (Appellant’s Memorandum, Questions 2 and 3, pages 2 and 8 to 19).

[27]           In addition to the applicable standard of review, the other issues raised by the appellant (Appellant’s Memorandum, Questions 4, 5 and 6, pages 2 and 19 to 28) may be grouped together as follows:

                                               (i)      Was there a breach of procedural fairness?

                                             (ii)      Did the administrative decision-maker err in applying subsection 19.3(1) of the Act?

[28]           In his memorandum at paragraphs 41(b) and (c), the appellant raises issues that he describes as jurisdictional issues:

[translation]

                                               (i)      That the DPSIC was biased because the PPSC managers were former colleagues with whom he associated;

                                             (ii)      That the DPSIC was not sufficiently proficient in French;

                                           (iii)      That under paragraph 25(1)(g) of the Act and the general principles of administrative law, it was illegal to subdelegate the determination of whether his complaint could be dealt with to one of the Office’s lawyers or analysts.

[29]           The second issue had been presented to the judge as a breach of procedural fairness (see paragraph 27 of the reasons in Agnaou #1 FC). None of these issues is, in my view, a true jurisdictional issue; for the purpose of my analysis, I would categorize them as alleged breaches of procedural fairness. As I do not agree with any of the arguments presented, the applicable standard has little importance, since I have applied the stricter standard.

[30]           Whether a decision-maker has breached procedural fairness or broken a rule of natural justice is a question that is subject to the correctness standard of review (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235) [Housen]. I note that no procedural fairness issues are analyzed in the DPSIC’s decision. What the appellant is challenging, rather, is the process that was adopted to decide his complaint and the way in which the complaint was handled.

[31]           On the same grounds as those described in paragraph 34 of the reasons of Justice Scott in Agnaou #1, the appellant alleges that the respective interpretations of sections 12 and 19.3 of the Act are questions of law subject to the correctness standard of review. In my view, a decision to refuse to deal with a complaint under paragraph 19.3(1)(c) is a question of mixed fact and law to which the reasonableness standard applies.

[32]           In this respect, there is no distinction between such a decision and the one made under section 24 of the Act to not investigate the wrongdoings disclosed on October 13 (see our reasons in Agnaou #1). As in Agnaou #1, I am satisfied that the Federal Court’s finding in Detorakis v. Canada (Attorney General), 2010 FC 39, [2010], 358 F.T.R. 266 [Detorakis] is consistent with the more recent teachings of the Supreme Court of Canada regarding the standard of review applicable to such questions.

[33]           Even if I agreed with the appellant’s argument that the interpretation of section 12 and the applicable test under subsection 19.3(1) are pure questions of law that may be derived from what was originally a question of mixed fact and law (which seems doubtful to me in this case), I do not think that these questions are such that they would displace the presumption that an administrative decision-maker, whose purpose is to apply its home statute, is entitled to deference when it interprets that statute (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at paragraph 54; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paragraph 34; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] S.C.R. 895 [McLean] at paragraph 21; and Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, 371 D.L.R. (4th) 219 at paragraph 55).

[34]           Moreover, in Keith v. Canada (Correctional Service), 2012 FCA 117 at paragraph 48 [Keith], this Court decided that a reviewing court must defer to the findings of law that the Canadian Human Rights Commission (Commission) makes within its mandate when it dismisses a complaint. Given the similarities between the reprisal complaint process and the complaint process under the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [CHRA], the same conclusion must be reached here.

[35]           The judge therefore chose the appropriate standard of review for all the issues before him.

V.                Breach of procedural fairness

[36]           The appellant argues, as he already did in Agnaou #1, that the DPSIC should have given him the opportunity to comment on the analyst’s report that was given to him.

[37]           As in Agnaou #1, at this preliminary stage, no one other than the complainant takes part in the process. Both parties agree that the analyst’s report does not refer to any evidence or commentary from external sources or third parties. Neither the Act nor the Office’s established process offers a complainant such an opportunity at this stage. Moreover, in this appeal, the first analyst clearly notified the appellant in his letter dated January 21, 2013, that he would have to wait for the DPSIC to make a decision before he could comment on the analyst’s admissibility report (A.B., page 735). Accordingly, there could not have been any legitimate expectation based on any promise whatsoever.

[38]           The appellant was aware of the essential conditions that needed to be met, as the complaint form contains a definition of “reprisal” (A.B., page 670) and identifies the different types of protected disclosures (A.B., page 674). He had an opportunity to make representations in this regard when he filed his complaint and during his exchanges with the first analyst.

[39]           Having considered the content of the DPSIC’s duty of procedural fairness, in light of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. [Baker] at paragraphs 21 to 29, and even taking into account that the decision to reject a reprisal complaint can have a greater impact on the appellant’s career than a decision under section 24 of the Act (Agnaou #1), I am satisfied that there was no breach with regard to the appellant’s rights to participate. The DPSIC did not have to let him comment on the analyst’s report that was given to him before making a decision.

[40]           I agree with Justice Mactavish that the case law on complaints to the Commission is helpful (El-Helou v. Courts Administration Service, 2012 FC 1111, [2012] F.C.J. No. 1237 [El-Helou]). However, I also agree with the judge who states in Agnaou #1 FC that the final conclusion at which Justice Mactavish arrived cannot be adopted, given the specific facts of the case, which are very different from those in El-Helou (promise and decision after investigation).

[41]           In his arguments under this heading, the appellant raises two other questions. He submits that the decision does not provide sufficient reasons, since it does not address several important facts, such as the appellant’s supervisors’ subsequent use of workplace violence prevention regulations in the Canada Labour Code, R.S.C., 1985, c. L-2, against him (see paragraph 45 of the appellant’s memorandum). He also states that the DPSIC breached procedural fairness in approving the decision not to conduct an investigation without personally reviewing all the key facts submitted by the appellant.

[42]           Subsection 19.4(3) of the Act provides that DPSIC must give reasons for his decision. I am satisfied that the DPSIC fulfilled his obligations in this regard. The DPSIC’s reasons are sufficient to allow the judge or this Court to exercise its review jurisdiction. I note, as my colleague Justice Scott did at paragraph 59 of his reasons in Agnaou #1, that the Supreme Court of Canada has held that a “decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at paragraph 16 [Newfoundland and Labrador Nurses’ Union]. 

[43]           As was mentioned, interpreting the Act and applying it to the facts of the case are matters that are subject to the reasonableness standard of review. When it applies this standard, the Court takes into account the justification for and transparency of the decision. In such cases, the quality of the decision-maker’s reasons is therefore not a separate ground of review from the analysis that must be done to determine whether the decision is valid (see Newfoundland and Labrador Nurses’ Union at paragraph 21, Dunsmuir at paragraph 47, and McLean at paragraphs 71 and 72).

[44]           As to whether the DPSIC had to review the case personally, it suffices to note that administrative decision-makers can always rely on their staff in exercising their jurisdiction and that the mere fact that the decision-maker uses the services of legal counsel or analysts does not constitute a breach of procedural fairness (see Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at page 898 [Syndicat]).

[45]           I agree with the judge when he states at paragraph 33 of his reasons in Agnaou #1 FC, “. . . I am satisfied that he followed the usual procedure, which involves a multi-disciplinary approach and various levels of review of the case by a Legal Services analyst and himself”.

[46]           It is entirely normal and appropriate for administrative decision-makers to use the services of their staff, including when preparing their reasons (Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependant v. Canada (Commissioner of the Royal Canadian Mounted Police), [1998] 2 F.C. 252 at paragraph 18).

[47]           What is important here is that the final decision be made by the DPSIC. There is nothing in the evidence submitted by the appellant that in my view casts doubt on the fact that it was indeed the DPSIC who ultimately made the decision to reject the complaint under paragraph 19.3(1)(c) of the Act. This conclusion also allows me to summarily dispose of the argument that there was an unlawful subdelegation of authority to legal counsel or an analyst (see subsection 39.3(1.2) of the Act).

[48]           The DPSIC stated that when he made his decision, he had before him not only the analyst’s report, reviewed by Legal Services, but also the entire file (A.B., pages 728 and 729). In Syndicat, the Supreme Court of Canada noted at page 902 that the administrative decision-maker (the Commission) “was entitled to consider the investigator’s report [and] such other underlying material as it, in its discretion, considered necessary”. [Emphasis added.]

[49]           In any event, when analyzing the reasonableness of a decision, the Court takes into account what was in the record. Therefore, if the DPSIC’s decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, it will be set aside on this ground.

[50]           Finally, there is no need to discuss at length the appellant’s argument that the DPSIC was biased, because the individuals in the PPSC who were involved in the file were former colleagues with whom he associated at Justice Canada. This allegation is not supported by sufficient evidence to warrant my attention. If he wanted to contradict what the first analyst states in his letter dated January 21, 2013 (i.e., that the DPSIC did not personally know any of the individuals involved), it was up to the appellant to file sufficient evidence of this to support his application for judicial review.

[51]           For these same reasons, I will not deal with the doubts of the appellant, who questions whether the DPSIC was sufficiently proficient in French in February 2013 to properly understand the case.

[52]           I am therefore satisfied that the judge correctly concluded that the appellant had not established a breach of procedural fairness in the handling of his case.

VI.             Paragraph 19.3(1)(c) of the Act

[53]           The appellant submits that the judge and the DPSIC erred in applying paragraph 19.3(1)(c) of the Act because (i) they misinterpreted section 12 of the Act, which defines what constitutes a protected disclosure; (ii) they failed to read his emails dated April 1 and 2 in their context, particularly the context of the email dated April 4, 2009; and (iii) they failed to consider fundamental facts in the record (see the appellant’s memorandum at paragraph 45).

[54]           The appellant also notes that if the DPSIC had interpreted section 12 of the Act correctly, he would not have been able to conclude that this was one of the most obvious cases [in French, “un des cas les plus évidents”] where there was no protected disclosure. The respondent disagrees that subsection 19.3(1) applies only to the most obvious cases, making the same distinctions between the wording of this provision and that of section 41 of the CHRA as those proposed in Agnaou #1 (see paragraphs 68 and 69 the reasons).

[55]           I note right away that, in my view, the correct phrase to be used in French is a “cas évident et manifeste”, since this is the usual translation of “plain and obvious”. This is the phrase used in the case law of the Supreme Court of Canada setting out the test applicable to motions to strike out pleadings, and it was this test that was later used to summarily reject a complaint under section 41 of the CHRA (see Canada Post Corporation v. Canadian Human Rights Commission (1997), 130 F.T.R. 241, [1997] F.C.J. No. 578 [Canada Post Corporation] and El Helou. v. Canada (Courts Administration Service), October 19, 2011, 2011-PT-02).

[56]           Applying modern rules of statutory interpretation, this Court concluded in Agnaou #1 that the terms used in section 24 of the Act, read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, do not support the conclusion that the Commissioner could reject only plain and obvious cases, unlike the terms used in section 41 of the CHRA.

[57]           If we apply this same methodology, I think it is beyond doubt that Parliament chose to adopt a different approach to reprisal complaints and that, as is the case under section 41 of the CHRA, only plain and obvious cases must be rejected summarily because they cannot be dealt with. Allow me to explain.

[58]           I will first examine the process for handling disclosures and then turn to the reprisal complaint process under the Act to show why this conclusion is inevitable.

[59]           The Commissioner clearly has very broad discretion to decide not to deal with a disclosure or not to investigate under section 24 of the Act. This stems not only from the grammatical and ordinary sense of the terms used, but also from the context, such as the type of reasons that the Commissioner may rely on to justify his decision. For example, under paragraph 24(1)(b), the Commissioner may decide not to commence an investigation because the subject-matter of the disclosure or the investigation is not sufficiently important, and under paragraph 24(1)(f), he or she may decide that there is a valid reason for not dealing with the subject-matter of the disclosure or the investigation. This suggests a considered analysis rather than a summary review. The Act sets no time limit for deciding this question, or for filing a disclosure after a wrongdoing has been committed.

[60]           It is also clear that although the person making a disclosure has a certain interest in the case, the purpose of the Act is to denounce and punish wrongdoings in the public sector and, ultimately, build public confidence in the integrity of federal public servants. The public interest comes first, and it is the Commissioner’s responsibility to protect it. This explains why, for example, the Commissioner may decide that the subject-matter of the disclosure is not sufficiently important; conversely, he or she may expand an investigation and consider wrongdoings uncovered in the course of that investigation without the need for any disclosure to have been made (section 33 of the Act).

[61]           The role of the Commissioner is crucial. The Commissioner is the sole decision-maker throughout the process. He or she has the power not only to refuse to investigate, but also to recommend disciplinary action against public servants who engage in wrongdoings. Among other things, the Commissioner may also report on “any matter that arises out of an investigation to the Minister responsible for the portion of the public sector concerned or, if the matter relates to a Crown corporation, to its board or governing council” (section 37 of the Act).

[62]           Parliament has established a very different process for reprisal complaints. In fact, this process is similar to the one provided for in the CHRA. There too, the public interest is a major concern. The disclosure of wrongdoings must be promoted while protecting the persons making disclosures and other persons taking part in an investigation into wrongdoings. However, as is often the case for complaints filed under the CHRA, reprisals complained of have a direct impact on the careers and working conditions of the public servants involved. The Act provides that a specific tribunal shall be established to deal with such matters, and that the Tribunal will be able to grant remedies to complainants, as well as impose disciplinary action against public servants who commit wrongdoings, where the Commissioner recommends it.

[63]           In the process applicable to these complaints, the role of the Commissioner is similar to that of the Commission. Like the Commission, he or she handles complaints and ensures that they are dealt with appropriately. To do so, the Commission reviews complaints at two stages in the process before deciding whether an application to the Tribunal is warranted to protect the public servants making disclosures.

[64]           The Commissioner must decide whether or not to deal with a reprisal complaint within 15 days after receiving it. The grounds on which a complaint may be summarily dismissed are far more limited than those provided under section 24 (disclosures). They are in the same nature as those set out in section 41 of the CHRA and are even more limited than the latter, since subsection 19.3(1) does not allow the Commissioner to refuse to deal with a complaint if it is found to be frivolous or abusive.

[65]           After investigating, the Commissioner re-examines the complaint in light of the factors described in subsection 20.4(3) of the Act, which include, among others, whether “there are reasonable grounds for believing that a reprisal was taken”, and whether the complaint should be dismissed for one of the reasons set out in paragraphs 19.3(1)(a) to (d). He or she will dismiss the complaint if an application to the Tribunal is not warranted (section 20.5). These provisions of the Act are substantially the same as those found in subsections 44(1) and 44(3) of the CHRA, as interpreted by the case law.

[66]           Like Justice Rothstein (then of the Federal Court) in Canada Post Corporation, who had before him a decision dismissing a complaint under section 41 of the CHRA, I find that at the admissibility stage, the Commissioner must not summarily dismiss a reprisal complaint unless it is plain and obvious that it cannot be dealt with for one of the reasons described in subsection 19.1(3) of the Act. This interpretation respects Parliament’s intention that complaints be dealt with in a particularly expeditious manner (within 15 days) at this first stage in the process. It is also consistent with the principle generally applied when a proceeding is summarily dismissed, thereby depriving the complainant of his or her right to a remedy. Finally, a cursory review of the complaint at this preliminary stage also avoids duplicating the investigation and repeating the exercise set out in subsection 20.4(3) of the Act.

[67]           The DPSIC does not address this issue directly in his decision. However, regarding the first condition, he states that [translation] “the analysis of your file indicates that it is possible that the alleged reclassifications may constitute a reprisal measure. . . . I therefore conclude that the first condition, set out under section 2 of the Act, has been met” [emphasis added]. Regarding the second condition, the DPSIC says, as I have mentioned, that [translation] “the wording [of the email dated April 2, 2009] cannot constitute an internal disclosure within the meaning of section 12 of the Act”. This language is consistent with my finding that he had to determine whether it was plain and obvious that the complaint could not fall within his jurisdiction.

[68]           The admissibility report prepared by the analyst (A.B., page 747 at paragraphs 19 to 23) confirms that there was no in-depth study at this stage and that the recommendation accepted by the DPSIC was based on his reading of the emails dated April 1 and 2, 2009.

[69]           The question is therefore whether the DPSIC could reasonably conclude that it was plain and obvious that the emails mentioned by the appellant could not constitute an internal disclosure within the meaning of section 12. This is what I will now discuss.

VII.          Was the decision reasonable?

[70]           It is important to begin my analysis by pointing out that the definition of “reprisal” clearly indicates that Parliament wants to protect persons who make disclosures or who, in good faith, cooperate in investigations from measures (as described in the Act) that are taken against them simply because they made a protected disclosure or participated in an investigation under the Act.

[71]           Therefore, whether a protected disclosure gives rise to an investigation or not and whether the Commission decided to act on it or not (section 24 of the Act) are not relevant questions at this stage of the review of whether a reprisal complaint should be dealt with.

[72]           This is the only interpretation that meets Parliament’s objective and gives effect to the language of section 12 (“that the public servant believes could . . .”, see paragraph 25, page 9, above). If a public servant believes in good faith that a wrongdoing is about to be committed, he or she must be able to disclose it under section 12, without fear of reprisals, even if in the end the Commissioner is of the opinion that there is no need to act upon it because, in his or her opinion, it is not a gross mismanagement.

[73]           Denying a public servant statutory protection from reprisals when he or she has been fired for disclosing information on what he or she believed in good faith to be a wrongdoing as defined by the Act would render the system totally ineffective.

[74]           On this point, the respondent confirmed at the hearing that it was necessary to clear up the impression that the judge may have given in the finding at paragraph 17 of his reasons (see paragraph 24 above). I agree that the judge’s finding is inaccurate if it implies that the DPSIC’s decision in Agnaou #1 is relevant to determining whether the Commissioner has jurisdiction to deal with a reprisal complaint.

[75]           Similarly, a person who makes a disclosure does not have to refer to the Act in a communication with one of his or her supervisors, nor does he or she have to mention the definition of “wrongdoing”, section 12, the Commissioner or any other agency, to permit a finding that he or she made an internal disclosure within the meaning of section 12. This provision does not require a public servant to convey the fact that he or she is in the process of making a disclosure within the meaning of the Act.

[76]           Clearly, when a communication includes such mentions, it is easier to conclude at the stage of determining whether to deal with a complaint that the public servant may have made an internal disclosure. However, I must reiterate that this is not a condition sine qua non. Therefore, it cannot reasonably be concluded that it is plain and obvious that a communication is not an internal disclosure simply because it does not use any of the key words described in the DPSIC’s decision (see the excerpt from the DPSIC’s decision, reproduced at paragraph 18 above).

[77]           In this case, it also appears that the DPSIC stressed the fact that in his email dated April 2, 2009, the appellant, having been advised by his supervisor that the decision he was trying to prevent had already been reported externally, stated as follows:

[translation]

. . .

In the weeks to come, I will focus on my active files and reflect on what action to take with regard to this serious matter. My decisions will be guided by my responsibilities as a Crown prosecutor as set out in our legislation and policies. If necessary, our Chief Prosecutor will be notified by the relevant authorities.

. . .

[78]           In my opinion, this aspect of the email is not particularly relevant, although it does confirm that, according to the appellant, what he described in his email dated April 1 was indeed a gross mismanagement. This is why, in his view, the Director of Public Prosecutions needed to be involved.

[79]           I will use an example here to illustrate what I mean.

[80]           Imagine that a public servant contacts his supervisor and informs her that he must speak to the big boss to stop a major contract being awarded to the spouse of the manager responsible for a case that was not put up for tender, contrary to the applicable rules. The next day, he is told that the contract has already been signed and that the parties have been notified, so he writes to that same supervisor, “I will have to reflect in the weeks to come on whether I should take action with regard to this serious matter”. Would it be reasonable to conclude that it is plain and obvious that this public servant did not disclose to his supervisor that a major contract had been awarded without solicitation to a non-arm’s length person because he did not include any express mentions such as those described in the decision, and because everything remained to be decided? Obviously, the only answer to this question is “no”.

[81]           Can the DPSIC’s decision be based on the only other justification raised, which I have not yet discussed specifically, namely, that there was no mention [translation] “of wrongdoings as defined in section 8 of the Act” (see paragraph 18 above)?

[82]           Given the list included in that paragraph and the context, this excerpt may be understood as suggesting that the DPSIC was of the view that there had to be a mention of one of the terms used in the definition in section 8 of the Act. This reading appears to be the correct one if one examines the admissibility report from which this justification originated (A.B., page 750 at paragraph 32). As I have already said, the lack of such a mention is not in itself determinative for the purposes of applying section 12 and consequently does not lead to the conclusion that paragraph 19.3(1)(c) precludes dealing with the complaint.

[83]           The other approach is to read this passage as a finding by the DPSIC that the allegations against the managers involved simply cannot constitute a wrongdoing—in this case, a serious mismanagement (paragraph 8(1)(c))—and that it is therefore plain and obvious that the emails do not contain any information that could show that a wrongdoing within the meaning of section 8 was committed.

[84]           If this conclusion is based on his decision on January 6, 2012, not to commence an investigation, as I have already mentioned, this seems to me to be contrary to Parliament’s intent. Moreover, as I stated in paragraph 82 above, reading the passage in the light of the analyst’s report does not support this approach. The analyst does not address this question. She states that it is reasonable to conclude that the appellant did not make a disclosure. This conclusion is clearly based on a lack of an express mention, as discussed above, and on the fact that the appellant stated that he was going to consider the potential action he might take, without saying with whom. The analyst very briefly described what the appellant objected to and why. She did not say that, in the appellant’s view, the decision in question involved the public interest or that the appellant claimed that there had been undue interference by a third party (A.B., page 747, paragraphs 19 and 20, and page 750, paragraph 32). 

[85]           That being said, to conclude my analysis of the reasonableness of the decision, I must determine whether a cursory review, that is, a review of the emails exchanged on April 1 and 2, 2009, could support the DPSIC’s conclusion that these exchanges could not constitute an internal disclosure within the meaning of section 12.

[86]           According to that provision, the disclosure had to be made to a supervisor. Although the analyst stated that Sylvie Boileau’s title was not specified, this was not challenged. In fact, Ms. Boileau was the Assistant Chief Prosecutor (see for example A.B., page 207).

[87]           In his email to Sylvie Boileau dated April 1, 2009, the appellant alleged that the managers involved had decided to close the file before a prosecution report had even been drafted, owing to a third party’s interference. Given his conclusion as Crown prosecutor responsible for the file that the public interest and internal policies demanded that criminal charges be filed, those managers then interfered by using an unusual process to [translation] “legitimize” the decision that they had already made.

[88]           The phrase “gross mismanagement” used in section 8 of the Act is not defined and depends, of course, on the organization involved. Here, given the very nature of the PPSC’s mandate, the file is on the whole rather unusual, and it is difficult to determine the exact parameters of what could constitute such a wrongdoing. The public interest is often an important consideration when deciding whether to institute criminal proceedings, and it is true that this decision should not be subject to undue interference. The analyst also concluded that there was no evidence of bad faith on the appellant’s part. In such circumstances, the appellant could believe that he was disclosing evidence of gross mismanagement to his supervisor.

[89]           I therefore cannot conclude that one of the possible outcomes was that it was plain and obvious that the appellant did not make an internal disclosure within the meaning of section 12 and, consequently, that the complaint was beyond the jurisdiction of the Commissioner (and therefore of the DPSIC).

VIII.       Remedy

[90]           The appellant asks the Court for a [translation] “directed verdict”, for two reasons: the involvement of the Commissioner or the DPSIC is likely to [translation] “give rise to a reasonable apprehension of bias should the final decision be referred back to them”, and [translation] “[t]he time that has elapsed since the complaint was filed is excessive”. In his view, the Court should direct the Commissioner to commence an investigation and to retain the services of a person that the Commissioner will appoint, upon the recommendation of the Auditor General of Canada, to conduct the investigation.

[91]           In light of my findings under the heading “Breach of procedural fairness”, there is no reasonable apprehension of bias in this case.

[92]           However, as the other grounds set out in subsection 19.1(1) do not apply in this case, and since the time elapsed (nearly two years) since the complaint was accepted for filing, I do indeed believe that this is an exceptional case where it is necessary to declare this complaint admissible (see D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paragraphs 16-20). I am satisfied that this approach is the only one that will afford the expeditious (within 15 days) treatment intended by Parliament at the first stage of the process provided for in the Act.

[93]           In the circumstances, I would allow the appeal and declare the reprisal complaint to be admissible at this stage. The matter should be referred back to a new commissioner to be dealt with appropriately, as prescribed by the Act.

[94]           Finally, the appellant sought costs. I note, however, that even though he is a lawyer, the appellant was self-represented. Normally, he is therefore not entitled to costs as per Tariff B of the Federal Courts Rules, SOR/98-106. The parties made no submissions allowing me to quantify the disbursements or other amounts that could be awarded to him. I would therefore give the appellant five days to serve and file his submissions on costs (maximum four pages). The respondent may serve and file its response (maximum four pages) within five days after service of the appellant’s submissions. If necessary, the appellant may serve and file a reply (maximum two pages) within two days after service of the respondent’s response. The Court will then be able to dispose of the question of costs on the basis of these written submissions.

“Johanne Gauthier”

“I agree

M. Nadon”

“I agree

A.F. Scott”

 

ANNEX A

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DoCKET:		A-110-14
STYLE OF CAUSE:		YACINE AGNAOU v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:	Montréal, QuEbec
DATE OF HEARING:	OCTOBER 9 AND 22, 2014
REASONS FOR JUDGMENT BY:	GAUTHIER J.A.
CONCURRED IN BY:	NADON J.A. SCOTT J.A.
DATED:	February 2, 2015

APPEARANCES:

SELF-REPRESENTED	FOR THE appelLant YACINE AGNAOU
Kétia Calix	For THE RESPONDENT ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

YACINE AGNAOU	FOr THE APPELLANT SELF-REPRESENTED
William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario	For THE RESPONDENT ATTORNEY GENERAL OF CANADA