Date: 20220209

Docket: A-290-19

Citation: 2022 FCA 23

CORAM:

WEBB J.A. LASKIN J.A. RIVOALEN J.A.

 

BETWEEN:

MIRNA MONTEJO GORDILLO, JOSÉ LUIS ABARCA MONTEJO, JOSÉ MARIANO ABARCA MONTEJO, DORA MABELY ABARCA MONTEJO, BERTHA JOHANA ABARCA MONTEJO, FUNDACIÓN AMBIENTAL MARIANO ABARCA (MARIANO ABARCA ENVIRONMENTAL FOUNDATION OR FAMA), OTROS MUNDOS, A.C., CHIAPAS, EL CENTRO DE DERECHO HUMANOS DE LA FACULTAD DE DERECHO DE LA UNIVERSIDAD AUTÓNOMA DE CHIAPAS (THE HUMAN RIGHTS CENTRE OF THE FACULTY OF LAW AT THE AUTONOMOUS UNIVERSITY OF CHIAPAS), LA RED MEXICANA DE AFECTADOS POR LA MINERÍA (MEXICAN NETWORK OF MINING AFFECTED PEOPLE OR REMA) AND MININGWATCH CANADA

Appellants

and

ATTORNEY GENERAL OF CANADA

Respondent

and

AMNESTY INTERNATIONAL CANADA AND CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS AND THE INTERNATIONAL JUSTICE AND HUMAN RIGHTS CLINIC AND THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY

Interveners

Heard at Ottawa, Ontario, on November 8, 2021.

Judgment delivered at Ottawa, Ontario, on February 9, 2022.

REASONS FOR JUDGMENT BY:	LASKIN J.A.
CONCURRED IN BY:	WEBB J.A. RIVOALEN J.A.

 

Date: 20220209

Docket: A-290-19

Citation: 2022 FCA 23

CORAM:

WEBB J.A. LASKIN J.A. RIVOALEN J.A.

 

BETWEEN:

MIRNA MONTEJO GORDILLO, JOSÉ LUIS ABARCA MONTEJO, JOSÉ MARIANO ABARCA MONTEJO, DORA MABELY ABARCA MONTEJO, BERTHA JOHANA ABARCA MONTEJO, FUNDACIÓN AMBIENTAL MARIANO ABARCA (MARIANO ABARCA ENVIRONMENTAL FOUNDATION OR FAMA), OTROS MUNDOS, A.C., CHIAPAS, EL CENTRO DE DERECHO HUMANOS DE LA FACULTAD DE DERECHO DE LA UNIVERSIDAD AUTÓNOMA DE CHIAPAS (THE HUMAN RIGHTS CENTRE OF THE FACULTY OF LAW AT THE AUTONOMOUS UNIVERSITY OF CHIAPAS), LA RED MEXICANA DE AFECTADOS POR LA MINERÍA (MEXICAN NETWORK OF MINING AFFECTED PEOPLE OR REMA) AND MININGWATCH CANADA

Appellants

and

ATTORNEY GENERAL OF CANADA

Respondent

and

AMNESTY INTERNATIONAL CANADA AND CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS AND THE INTERNATIONAL JUSTICE AND HUMAN RIGHTS CLINIC AND THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY

Interveners

REASONS FOR JUDGMENT

LASKIN J.A.

I. Introduction

[1] The appellants, family members and supporters of Mariano Abarca, a community leader who was murdered in Mexico in November 2009, appeal from a judgment of the Federal Court (2019 FC 950, Boswell J.). In its judgment, the Federal Court dismissed the appellants’ application for judicial review of a decision of the Public Sector Integrity Commissioner of Canada (PSIC-2017-D-0413), made under the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (PSDPA).

[2] The appellants submitted a complaint to the Commissioner alleging wrongdoing at the Canadian Embassy in Mexico City, and requesting that the Commissioner commence an investigation. They invoked two categories of wrongdoing, as set out in the PSDPA: “an act or omission that creates a substantial and specific danger to the life, health or safety of persons,” and “a serious breach of a code of conduct.”

[3] The Commissioner decided that the information the appellants provided did not give him reason to believe that either category of wrongdoing had been committed. He concluded, therefore, that it was not in the public interest to commence an investigation into the alleged wrongdoing, and he declined to do so.

[4] The appellants say that the application judge erred in failing to find the process the Commissioner followed in reaching his decision to be unfair, and in finding the decision to be reasonable. Four non-governmental organizations have intervened in support of the appellants’ position that the decision was unreasonable, and three of the four submit that the PSDPA must be interpreted and applied so as to give effect to Canada’s international law obligations and to Charter values.

[5] For the reasons that follow, I would dismiss the appeal. In brief, I find no breach of procedural fairness, and conclude that the Commissioner’s decision was not unreasonable on any of the grounds the appellants put forward, given his role and the governing statutory framework. I also find it would be inappropriate for this Court to consider the interveners’ international law and Charter arguments for the first time in this appeal, when they were not put to either the Commissioner or the Federal Court.

II. Background

[6] Blackfire Exploration Ltd., a small Canadian mining company, constructed and operated a barite mine in the Mexican state of Chiapas between December 2007 and December 2009, when the mine was shuttered by Mexican authorities for environmental violations.

[7] Throughout the project, Canadian Embassy officials in Mexico assisted Blackfire with its negotiations with the Mexican government, and lobbied regulatory authorities on the company’s behalf.

[8] Blackfire’s mining operations in Chiapas attracted significant opposition from the local community. They were the target of large protests and months-long blockades. Mr. Abarca, a resident of the nearby town of Chicomuselo in Chiapas, a state in southern Mexico, was a prominent advocate against the mine. In July 2009, he led a delegation of residents to protest Blackfire’s behaviour in front of the Canadian Embassy in Mexico City.

[9] Several weeks after this protest, Mr. Abarca was arrested by Mexican police after Blackfire brought charges related to his anti-mining activities. The Embassy received over 1,400 emails in a letter-writing campaign related to his detention, and contacted state and federal officials (including the state Human Rights Commission) and Blackfire for more information. Mr. Abarca was released after eight days in detention and was not charged with an offence.

[10] A few months later, Embassy officials went to Chiapas to discuss the project with government officials and advocate on Blackfire’s behalf.

[11] Mr. Abarca was murdered outside of his home in Chicomuselo in late November 2009.

[12] Embassy officials issued a statement welcoming the Mexican authorities’ investigation into Mr. Abarca’s death, and monitored the reaction as allegations against Blackfire increased. They also helped Blackfire consider investor-state dispute options after the mine was closed.

[13] Though Blackfire employees were charged with Mr. Abarca’s murder, no one was ultimately convicted. Canada-based advocacy groups pressed for a criminal investigation of Blackfire in Canada for contravention of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. The RCMP conducted an investigation, and advised in February 2015 of their conclusion that the evidence did not support criminal charges.

[14] The appellants comprise Mr. Abarca’s wife, two sons and two daughters, together with five non-governmental organizations from Mexico and Canada.

[15] In late 2010, the appellants submitted a request under the Access to Information Act, R.S.C. 1985, c. A-1, for records in relation to the Canadian Embassy in Mexico. Approximately 1,000 pages of material, many with redactions, were released in 2012 in response to the request.

[16] The appellants submitted their request for an investigation to the Commissioner in February 2018. The Commissioner issued his decision that he would not commence an investigation in April 2018.

III. Decisions to investigate under the PSDPA

[17] The Commissioner is appointed by the Governor in Council after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons. The PSDPA authorizes the Commissioner to investigate alleged wrongdoing in the federal public sector, and gives the Commissioner the discretion to determine whether an investigation should be conducted.

[18] Section 8 of the PSDPA sets out the categories of wrongdoing in or relating to the public sector to which the Act applies. The wrongdoing the appellants alleged is set out in paragraphs 8(d) and 8(e), which read as follows:

[19] Subsection 5(1) requires the Treasury Board to “establish a code of conduct applicable to the public sector.” By subsection 6(1), “[e]very chief executive shall establish a code of conduct applicable to the portion of the public sector for which he or she is responsible.” By subsection 2(1), “chief executive” is defined to mean “the deputy head or chief executive officer of any portion of the public sector, or the person who occupies any other similar position, however called, in the public sector.”

[20] The Commissioner may investigate alleged wrongdoing either in response to a disclosure of wrongdoing by a public servant, or as a result of information provided to the Commissioner by a person who is not a public servant. (The Commissioner also refers to the provision of information by a person who is not a public servant as a disclosure; I will therefore adopt that terminology here.)

[21] Subsection 33(1) sets out the prerequisites for the Commissioner to decide to conduct an investigation following a disclosure by a person who is not a public servant. The Commissioner must first, as a result of the information provided by the person seeking an investigation, have reason to believe that a wrongdoing has been committed. Next, the Commissioner must believe on reasonable grounds that the public interest requires an investigation. And finally, an investigation must not be restricted by section 23 or refused on the basis of one of the grounds set out in section 24.

[22] Subsection 33(1) reads in relevant part as follows:

[23] Subsection 23(1) restricts the Commissioner from commencing an investigation if a person or body acting under another statute is dealing with the subject matter of the investigation other than as a law enforcement authority. Subsection 24(1) confers on the Commissioner a broad discretion to refuse to commence an investigation if in his or her opinion certain conditions are met. These include, in paragraph 24(1)(f), that there is “a valid reason for not dealing with the subject-matter of the ... investigation.”

[24] The PSDPA also specifies the purpose of an investigation into a disclosure or an investigation commenced under section 33, should one be commenced. By subsection 26(1), an investigation is “for the purpose of bringing the existence of wrongdoings to the attention of chief executives and making recommendations concerning corrective measures to be taken by them.”

IV. The appellants’ disclosure

[25] The appellants submitted their disclosure using the disclosure form for members of the public published by the Office of the Commissioner. The form set out a definition of wrongdoing that tracked the language of section 8 of the PSDPA. It included the following instruction (bolding in the original):

Using your own words, while keeping in mind the definition of wrongdoing above, please describe the situation. Include: who you believe committed wrongdoing; what your specific allegations are; when and where (which federal department/organization) the alleged wrongdoing occurred. Identify any applicable Acts, Regulations, Policies or Directives relating to the wrongdoing. For example if the wrongdoing you are reporting refers to the contravention of an Act, indicate which Act.

[26] The disclosure form also contained this instruction regarding documentation (bolding in original):

You may attach supporting documentation or additional information if necessary. ... To ensure a timely review of your case, only provide documentation that supports your allegations, specifying which portions you deem relevant to the alleged wrongdoing.

[27] The declaration to be signed by the person submitting the disclosure included the statement, “I understand that it is my responsibility to provide the Commissioner with all the information required by this form and to attach any relevant documentation.” A representative of the appellants signed this declaration on their behalf.

[28] The appellants’ disclosure provided with the signed form comprised some 23 pages of single-spaced text, including 100 footnotes, along with an appendix setting out dates of key events. Forty-five of the footnotes contained references to documents obtained through the access to information process, though no copies of these documents were provided. Thirty-four of the footnotes contained hyperlinks to documents of a variety of kinds, including government documents, newspaper articles, and reports. Except through these hyperlinks, the documents on which the appellants relied were, again, not themselves provided. The appellants say that the footnotes referred to 79 documents in total.

[29] In the introduction to their disclosure, the appellants submitted that the disclosure raised two issues. The first, they submitted, related to the Embassy’s failure to follow three policies dealing with conflicts between local communities and Canadian mining companies, a failure that led the Embassy to ignore warnings that Mr. Abarca’s life and safety were in danger. The second, they submitted, was whether the Embassy knew about but failed to report suspicious payments made by Blackfire to a local politician.

[30] After setting out a synopsis of the facts and identifying the public servants they considered responsible, the appellants proceeded, under the heading “Breach of policies related to conflicts in the extractive industry,” to address the legal framework for finding wrongdoing under paragraphs 8(d) and 8(e) of the PDSPA. They described this portion of their disclosure as showing that “the Canadian Embassy failed to follow Department policies and that the Canadian Embassy’s actions as well as its omissions may have created the conditions that resulted in ‘a substantial and specific danger to the life, health or safety’” of Mr. Abarca and others. They submitted that there had been a failure to follow “three key policies” relevant to conflicts in extractive industries abroad, and that this failure may have resulted in wrongdoing within the meaning of paragraphs 8(d) and 8(e). Citing the 2014 Values and Ethics Code of the Department of Foreign Affairs and International Trade (as the department was then called), they stated that “[o]ne of the core functions of civil servants is to carry out their duties in accordance with Canadian laws and policies.”

[31] The three “policies” the appellants invoked were the following.

• (1) A document published by Global Affairs Canada in 2016 entitled Building the Canadian Advantage: A Corporate Responsibility (CSR) Strategy for the Canadian International Extractive Sector. The appellants quoted from the document a statement that “the government encourages and expects Canadian companies to meet high standards of corporate social responsibility,” as well as a reference to violence-related risk assessment as an “area of particular concern.”

• (2) A statement from the department in a 2016 document, and a similar statement made before 2013, that “Canada’s network of missions abroad pursues objectives related to the promotion and protection of the human rights defenders consistent with our human rights agenda.” The appellants commented that this policy was consistent with the United Nations’ Declaration on Human Rights Defenders adopted in 1999 (Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144, UNGAOR, 53rd Sess, UN Doc A/RES/53/144 (1999)). But they also noted that the policy in the 2007-2009 period was “very general,” and did not point to a specific source for the policy during that period.

• (3) “Specific guidelines” on what Canadian embassies should do when there is a conflict involving the host state, a Canadian mining company, and a local community. These guidelines were included in a statement issued to the Toronto Star in December 2019. They called for embassies, where they learn of allegations of human rights violations by Canadian companies abroad, to “try to play a constructive and helpful role,” and to work to “facilitate an open and informed dialogue between all parties.”

[32] The appellants submitted that there were “clear grounds to investigate whether the failure to implement the three policies ... led to a substantial and specific danger to the life, health or safety of persons in the community, including Mariano Abarca, as well as detrimental impacts on the environment.”

[33] The appellants alleged that the Embassy violated the first of these policies when, knowing of the tensions between Blackfire and the local community, and knowing of protests against the mine and of Mr. Abarca’s detention, it failed to investigate the source of the tensions, conduct a violence-related risk assessment, or inquire into whether Blackfire had done so.

[34] The appellants went on to allege that by, among other things, failing to assess the justification for allegations of illicit activities Blackfire levelled against Mr. Abarca, failing to consider issues related to human rights defenders, and taking on the role of advocate for Blackfire’s interests with the government of Chiapas, the Embassy violated departmental policy on human rights defenders. The appellants acknowledged that in the 2007 to 2009 period, “there [did] not appear to have been any precise rules on what Canadian Embassy personnel should do to protect human rights defenders,” but pointed to a statement of policy issued in 2016 for examples of what the Embassy could have done.

[35] The appellants further alleged that rather than facilitating an open and informed dialogue between all parties, in accordance with the third policy they cited, the Embassy acted throughout as an advocate for Blackfire and its economic interests.

[36] The appellants thus alleged that the Embassy violated each of the policies they cited, and that, particularly given the death of Mr. Abarca, these violations amounted, taken together, to a serious breach of a code of conduct. They added that if Embassy officials were under specific instructions to act as they did, then the Commissioner should investigate the officials who gave those instructions.

[37] The appellants then turned again to their allegation of wrongdoing under paragraph 8(d) of the PSDPA (“an act or omission that creates a substantial and specific danger to the life, health or safety of persons”). They alleged that given the Embassy’s close relationships with Blackfire and the governments of Mexico and Chiapas, it could have influenced the course of events had it followed the three policies they enumerated. They stated that the Embassy’s failure to raise concerns with the state of Chiapas about Mr. Abarca’s right of peaceful protest free of threats and intimidation “may well have increased the dangers” (emphasis in original) by encouraging the state to intervene more actively to protect Blackfire’s interests. They characterized as “reckless” the Embassy’s advocacy on behalf of Blackfire while ignoring the dangers to Mr. Abarca, and failing to advocate for greater dialogue. They submitted that the Embassy’s advocacy on behalf of Blackfire with the Chiapas government was an action that created a specific danger to the life and safety of Mr. Abarca, while its failure to raise human rights concerns with Blackfire and the government of Chiapas was an omission with the same effect.

[38] Having completed their submissions under the heading “Breach of policies related to conflicts in the extractive industry,” and set out their view that there was wrongdoing under paragraphs 8(d) and 8(e) of the PSDPA arising from the breach of these policies that should be investigated, the appellants proceeded, under the heading “Duty to report suspected corruption,” to discuss what they submitted was the Embassy’s failure to meet this duty.

[39] In dealing with this subject, the appellants reiterated that public servants have an obligation to carry out their duties in accordance with Canadian laws and policies. They referred in this regard to the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, which, they stated, made it illegal to bribe foreign officials in order to obtain a business benefit. They also noted that under the department’s 2010 Policy and Procedures for Reporting Allegations of Bribery Abroad by Canadians or Canadian Companies, public officials are to report suspected bribery to their headquarters in Ottawa if they “become aware of allegations of corruption or bribery involving Canadian individuals or Canadian companies.”

[40] The appellants stated that what concerned them was that the Embassy did not report to the RCMP allegations that Blackfire had bribed the mayor of Chicomuselo to prevent locals from protesting against and vandalizing the mine until these allegations were published in Canadian newspapers in December 2009. The appellants submitted that the Commissioner should investigate whether the Embassy had knowledge of the payments before then. They posited a number of possible scenarios, some described as “curious” or “very strange,” that might explain what had occurred.

[41] The disclosure then addressed, under a new heading, the Commissioner’s jurisdiction to investigate. The appellants submitted that there were “strong public interest reasons” to investigate, based on both the murder of Mr. Abarca and Canada’s international human rights obligations related to the protection of human rights defenders. Anticipating possible responses by the Commissioner, they also submitted that two of the grounds on which the Commissioner may choose not to investigate set out in section 24 of the PSDPA – insufficient importance (paragraph 24(1)(b)) and the passage of time (paragraph 24(1)(d)) – should not apply.

[42] In their closing comments, the appellants submitted that it was the Commissioner’s responsibility “to look at the values espoused by the Canadian government in order to determine whether specific policies meant to implement those values were followed.”

V. The Commissioner’s decision

[43] In his decision letter, the Commissioner stated that, while his Office had taken the appellants’ allegations very seriously, and had “conducted a thorough review of all of the information [they] provided,” that information did not give him reason to believe that the Embassy had committed wrongdoing as defined in paragraph 8(d) or 8(e) of the PSDPA. Ten times in his 31⁄2-page decision letter, the Commissioner expressly grounded his decision in “the information provided” by the appellants. In one instance, he also stated that his decision was not to investigate “the allegations as [the appellants had] presented them.”

[44] The Commissioner dealt first with the appellants’ allegation that the Embassy had failed to adhere to the “policies” the appellants enumerated, and that this failure both amounted to a serious breach of a code of conduct and created a substantial and specific danger to Mr. Abarca’s life. He found that, “from [his] understanding,” the documents on which the appellants relied were “not official Government of Canada policies and ... [did] not appear to prescribe specific actions that should have been taken or not taken by the Embassy at the relevant time.” He further found that, in any event, given that the Embassy’s mandate included assisting Canadian companies abroad, the number and substance of the Embassy’s communications with Blackfire did not appear to contravene these “policies” or otherwise constitute wrongdoing.

[45] The Commissioner went on to state that, based on the information provided by the appellants, it did not appear that the Embassy was obligated to mediate the dispute between Blackfire and its opponents. He acknowledged that some might see the Embassy’s interactions with the opponents of the mine to have been too limited. But, he stated, based on the information provided it could not be said that the Embassy’s actions or inactions relating to the difficulties between Blackfire and the community constituted wrongdoing as defined.

[46] The Commissioner came to a similar conclusion respecting the Embassy’s treatment of human rights concerns. It appeared, he stated, that the Embassy did not ignore these concerns. He noted among other things that the Embassy had sought information about Mr. Abarca’s detention from a number of sources, and had stated that it welcomed the judicial investigation by Mexican authorities into his death. The Commissioner recognized that in the appellants’ view, the Embassy should have made further efforts, but observed that the Embassy would have had no jurisdiction in relation to that investigation or Mexican legal proceedings. The information provided did not suggest, he concluded, that the Embassy’s conduct in this respect contravened the “policies” or amount to wrongdoing.

[47] Having thus concluded that the information the appellants had provided regarding the Embassy’s alleged failure to adhere to “policies” did not suggest that wrongdoing as set out in paragraph 8(d) or 8(e) was committed, the Commissioner turned to the appellants’ allegations regarding the Embassy’s duty to report bribery and corruption.

[48] The Commissioner noted that the appellants’ allegations in this regard relied on a 2010 policy, and that it appeared that the bribery allegations became public in the Mexican press in June 2009 and were reported by the Embassy in December 2009, following Canadian news coverage. He stated that although the appellants “had provided [their beliefs] surrounding what the Embassy may or should have known or done and when, the information provided in this regard [appeared] speculative.” As a result, he stated, it was not clear whether a policy similar to the 2010 policy was in effect at the relevant time. He concluded, considering that the Embassy did report the alleged bribery and corruption, that the information provided was not sufficient to suggest wrongdoing, as defined, on the part of Embassy officials.

[49] The Commissioner also noted that the RCMP had investigated the bribery and corruption allegations and found that the evidence did not support criminal charges. Therefore, he concluded, the information provided concerning the alleged failure to report bribery and corruption did not suggest that wrongdoing was committed within paragraph 8(d) or 8(e).

[50] The Commissioner then set out his overall conclusion: that the appellants’ disclosure did not give him reason to believe that the Embassy had committed wrongdoing as defined in paragraph 8(d) or 8(e). Accordingly, he stated, “the requirements of subsection 33(1) of the Act have not been met and it is not in the public interest to commence an investigation.” This conclusion, he stated, was “consistent with, and reflective of, [his] particular mandate and role under the Act.” Having concluded that the first requirement in subsection 33(1) – reason to believe – was not met, he did not refer to any of the factors listed in subsection 24 (1) that would have given him the discretion to refuse to commence an investigation even if he had found the reason to believe that subsection 33(1) requires.

VI. The Federal Court’s decision

[51] The appellants sought judicial review of the Commissioner’s decision in the Federal Court, arguing that the decision was both unreasonable and procedurally unfair. In support of their application, they filed an affidavit of a lawyer who had participated in the preparation of the appellants’ disclosure. Much of the affidavit consisted of statements of the further information the appellants asserted they could and would have provided if the Commissioner had asked for additional details or documents. The affidavit also appended approximately 450 pages of source documents for the footnotes in the appellants’ disclosure letter – documents that the appellants had not put before the Commissioner. In addition, it set out responses to and critiques of a number of statements in the Commissioner’s decision and the case admissibility analysis the Office of the Commissioner had prepared for him.

[52] As a preliminary matter, the application judge determined that he would disregard those portions of the appellants’ affidavit containing legal argument or information not directly before the Commissioner. In his view, the affidavit did not come within any of the exceptions set out in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras. 19-20, to the general rule that the evidentiary record on judicial review is limited to the record that was before the decision maker. The application judge also observed that the applicants had confused, in the manner identified in Duyvenbode v. Canada (Attorney General), 2009 FCA 120 at para. 3, the purpose of an affidavit with that of counsel’s submissions.

[53] The application judge then addressed the standard of review he should apply to the Commissioner’s decision. He identified the appropriate standard of review of the Commissioner’s decision not to investigate as reasonableness, and stated that evaluating whether procedural fairness had been afforded called for a situational assessment of the procedures and safeguards required. He concluded on the issue of procedural fairness by quoting from this Court’s decision in Gupta v. Canada (Attorney General), 2017 FCA 211 at para. 31. In Gupta, referred to further below, this Court described the scheme of the PSDPA for determining whether an investigation will be conducted as requiring only that

the discloser will submit information and supporting documentation that he or she believes establishes wrongdoing that warrants investigation by the Commissioner, and that the Commissioner will evaluate that information and documentation and decide whether to investigate.

[54] The application judge then turned to consider, applying the reasonableness standard of review, whether the Commissioner’s decision not to investigate was reasonable. He first rejected the appellants’ argument based on the contents of the certificate of record the Office of the Commissioner produced in response to the appellants’ request under rule 317 of the Federal Courts Rules, S.O.R./98-106. The certificate listed, in setting out the materials in the possession of the Commissioner, only three of the many source documents footnoted in, but not provided with, the disclosure letter. This showed, the appellants submitted, that the Commissioner did not review all of the source documents when making his decision. Since the three documents had not been provided with the disclosure letter, the Commissioner must have obtained them himself, and because he produced only the three documents, the appellants argued, he must not have obtained and read any others.

[55] The application judge saw nothing in the certificate of record to indicate that the Commissioner, or the author of the case admissibility analysis the Office of the Commissioner provided to him, may not have examined the documents to which online references were provided in the footnotes. It was not logical or reasonable, he stated, to infer that the Commissioner did not consider these documents. It was possible, the application judge suggested, that these documents were reviewed online and that no paper copies were made.

[56] The application judge went on to conclude that it was reasonable for the Commissioner to find the Embassy had broken no code of conduct. While the appellants had “[pointed] to aspirational documents and policies which were later put in place, they [had] not identified anything which created a legal obligation upon the Embassy to act or not act in a certain manner.” He observed that “[u]ndoubtedly, the [appellants] would have liked the Embassy to have acted in a certain way,” and acknowledged that if it had, “perhaps Mr. Abarca would not have been murdered.” But, he stated, the Commissioner’s decision not to investigate was, in [his] view, reasonable, and “[constituted] an acceptable outcome defensible in respect of the facts and law.” He therefore dismissed the application.

[57] The application judge did not expressly come to a conclusion on the appellants’ allegations of procedural unfairness, though in dismissing the application he implicitly rejected them. However, that is of no practical significance in this appeal, given this Court’s responsibility, discussed immediately below, to review the Commissioner’s decision de novo.

VII. Standard of review of the Federal Court’s decision

[58] As the Supreme Court recently confirmed in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10-12, “[a] reviewing judge’s selection and application of the standard of review is reviewable for correctness.” The question for this Court to determine on appeal from a decision of the Federal Court on judicial review is, accordingly, whether the Federal Court “chose the correct standard of review and applied it correctly.” We are to show no deference to the Federal Court; we are instead to perform what amounts to “a de novo review of the administrative decision,” in effect “stepping into the shoes” of the reviewing judge and focusing on the administrative decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47 (some punctuation omitted); Horrocks at para. 10.

[59] An exception applies where the reviewing judge acts as decision maker of first instance. In that circumstance, the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply: determinations of law are reviewed for correctness, while findings of fact and mixed fact and law (where there is no extricable question of law) are subject to review only on the deferential standard of palpable and overriding error: Horrocks at para. 11; Apotex Inc. v. Canada (Health), 2018 FCA 147 at paras. 57-58, leave to appeal refused, [2019] 1 S.C.R. v; Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 at para. 37, leave to appeal refused, [2016] 1 S.C.R. vii.

VIII. Standard of review of the Commissioner’s decision

[60] As noted above, the application judge determined that reasonableness was the appropriate standard of review of the merits of a decision of the Commissioner not to investigate alleged wrongdoing. The parties agree he was correct in doing so. While his decision was rendered before the Supreme Court recast the law of judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, it is consistent with the presumption set out in Vavilov that, subject only to limited exceptions, reasonableness is the applicable standard when a court reviews the merits of an administrative decision. None of the exceptions apply here.

[61] A court undertaking reasonableness review should not ask how it would have decided the issue, but only whether the decision maker’s decision was reasonable: Vavilov at para. 83. Vavilov now teaches that where a decision maker has given reasons, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras. 78, 85. The decision maker’s reasons should “not be assessed against a standard of perfection”: Vavilov at para 91. In coming to its decision, an administrative decision maker is entitled to draw on its knowledge, experience, and expertise: Vavilov at paras. 92-93; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 at paras. 35, 38.

[62] The burden rests with the party challenging a decision to show “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable”: Vavilov at para. 100. Moreover, absent exceptional circumstances, “a reviewing court will not interfere with [the decision maker’s] factual findings. The reviewing court must refrain from ‘reweighing and reassessing the evidence considered by the decision maker’”: Vavilov at para. 125 (internal citations omitted). That said, “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: Vavilov at para. 126.

[63] The application judge also correctly determined that issues of procedural fairness required no consideration of the appropriate standard of review, but instead “an assessment of the procedures and safeguards required in a particular situation.” This determination reflects the current approach of this Court to the standard of review for issues of procedural fairness: see Canadian Pacific Railway Company v. Canada (Transportation Agency), 2021 FCA 69 at paras. 46-47. For want of a better description, the approach is, however, sometimes also referred to as the “correctness standard.”

IX. The issues

[64] The appellants have set out the issues in this appeal in a manner that results in some duplication. Based on the written and oral submissions of the parties and the interveners, and taking into account the applicable standards of review, I would reframe the issues somewhat, and set them out as follows.

• (a) Did the Federal Court err in determining that portions of the appellants’ affidavit should be disregarded?

• (b) Did the Commissioner fail to provide the appellants procedural fairness?

• (c) Should this Court consider the interveners’ international law and Charter arguments in determining whether the Commissioner’s decision was reasonable?

• (d) Was the Commissioner’s decision reasonable?

X. Analysis

A. Did the Federal Court err in determining that portions of the appellants’ affidavit should be disregarded?

[65] The application judge’s decision to disregard portions of the appellants’ affidavit falls into the category of a decision made by the reviewing judge at first instance. The Housen standards of review set out above in paragraph 59 therefore apply.

[66] The admissibility of an affidavit is a question of law, reviewable on the standard of correctness: Canada (Attorney General) v. Iris Technologies Inc., 2021 FCA 223 at para. 20; Collins v. Canada, 2015 FCA 281 at paras. 49, 57. However, factual findings related to a determination of admissibility are entitled to deference: Iris Technologies at para. 20; Collins at para. 51.

[67] The application judge made no error of law in setting out the general rule that the evidentiary record before the reviewing court is confined to the record that was before the decision maker, or in setting out the limited exceptions to that rule.

[68] The appellants say that the application judge erred in failing to apply the exception recognized in Association of Universities for evidence “necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness.”

[69] But the application judge saw the situation differently. He found the affidavit to be “replete with legal arguments” – a conclusion he supported with a table comparing statements in the affidavit with statements in the appellants’ memorandum. He also found the affidavit to contain evidence that the appellants could have provided, but chose not to provide, in their disclosure, and to amount, therefore, to an impermissible attempt to improve the appellants’ position on judicial review from what it was before the decision maker. Indeed, the detailed accounts in the affidavit of the further evidence the applicants say they could have provided, and the hundreds of pages of documents exhibited to the affidavit, go well beyond what was necessary simply to bring the procedural defects the appellants asserted to the reviewing court’s attention.

[70] The factual findings of the application judge related to his conclusion that no exception to the general rule applied are entitled to deference. They disclose no palpable and overriding error. Thus, the Federal Court made no reviewable error in disregarding portions of the appellants’ affidavit.

[71] In view of the manner in which the appellants put their case in this Court, this conclusion creates some difficulty for the Court in deciding this appeal. In both their written and their oral submissions in the appeal, the appellants rely on documents exhibited to their affidavit but not put before the Commissioner – documents among those the application judge determined should not be considered. Having upheld this decision, this Court must now do its best to take no account of these portions of the appellants’ submissions or of the underlying documents.

B. Did the Commissioner fail to provide the appellants procedural fairness?

[72] The appellants submit that the Commissioner breached his duty of procedural fairness in two ways: (1) he did not give the appellants notice of, or the opportunity to make submissions on, what they describe in their memorandum as “novel, undisclosed threshold requirements he introduced,” and (2) he failed to evaluate the appellants’ disclosure in a fair and open manner by selectively reviewing only some of the documents referred to in, but not provided with, the appellants’ disclosure letter.

[73] Before I consider these two asserted breaches in turn, I should note that this Court has twice considered the content of the procedural fairness to which persons making a disclosure under the PSDPA and seeking to have the Commissioner commence an investigation are entitled. It has done so taking into account the well-known factors identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-31, as “relevant to determining what is required by the common law duty of procedural fairness in a given set of circumstances.”

[74] In Agnaou v. Canada (Attorney General), 2015 FCA 30 at para. 45, this Court approved the analysis of the Baker factors by the Federal Court in Detorakis v. Canada (Attorney General), 2010 FC 39 at para. 106, and its conclusion that the PSDPA “does not require that someone making a disclosure ... has a right to be heard or a right to make further submissions after the complaint has been made.”

[75] In Gupta (at para. 31), in a passage quoted by the application judge here, this Court came to a similar conclusion as to the extent of the discloser's procedural rights:

The parties here agree that the procedural fairness to which persons making disclosures are entitled at the stage of the Commissioner’s decision whether to investigate the disclosure is at the lower end of the spectrum. In my view, their agreement faithfully reflects the Baker factors, including, in particular, the extent to which the process provided for approximates the judicial process and the nature and terms of the statutory scheme. In giving the Commissioner the discretion whether to conduct, or refuse to conduct, an investigation of a disclosure, Parliament chose not to provide for an adjudicative, adversarial process, or a scheme resembling the judicial process in any other respect. Instead, the scheme that it put in place is limited and investigatory in nature: all that it appears to contemplate is that the discloser will submit information and supporting documentation that he or she believes establishes wrongdoing that warrants investigation by the Commissioner, and that the Commissioner will evaluate that information and documentation and decide whether to investigate.

[76] Both Agnaou and Gupta involved disclosures by public servants to the Commissioner rather than the provision of information to the Commissioner, as in this case, by persons who are not public servants. But there is nothing in the PSDPA to suggest that the procedural entitlements in the latter case should exceed those in the former. Paragraph 22(b) of the PSDPA describes the duty of the Commissioner in relation to disclosures of wrongdoings by public servants as to “receive, record and review [the disclosure] ... in order to establish whether there are sufficient grounds for further action”; see Burlacu v. Canada (Attorney General), 2022 FCA 10 at para. 46. Subsection 33(1) of the Act describes a very similar process where information is provided by a non-public servant: before the Commissioner may decide to conduct an investigation requested by a non-public servant, the Commissioner must first have reason to believe that a wrongdoing has been committed “as a result of” information the non-public servant has provided.

[77] In any event, the appellants accept (at paragraph 97 of their memorandum) the statement in Gupta as to the procedures contemplated by the statutory scheme when the Commissioner decides whether to commence an investigation. They submit nonetheless that in this case, the Commissioner did not treat them fairly.

(1) Failure to give notice of and an opportunity to be heard on “new threshold requirements”

[78] The appellants submit (at paragraph 94 of their memorandum) that in considering their allegations of wrongdoing under paragraph 8(e) of the PSDPA, the Commissioner “introduced the new requirements that the breach of a code of conduct must be a breach of ‘official Government of Canada policies’ and that the policies must ‘prescribe specific actions.’” The appellants say that they had no way of knowing of these requirements until they received the Commissioner’s decision, and that the Commissioner had and breached a duty to give them notice of, and an opportunity to make submissions regarding, these “new threshold requirements.”

[79] The appellants acknowledge that, in accordance with the decisions in Gupta, Agnaou, and Detorakis, a discloser ordinarily has no entitlement to make further submissions to the Commissioner following the submission of the disclosure. They rely for their submission that they were entitled to do so in this case on this Court’s decision in Therrien v. Canada (Attorney General), 2017 FCA 14. In Therrien, this Court found a breach of procedural fairness where the Commissioner’s staff gave the discloser’s counsel incorrect information as to what provisions of the PSDPA the Commissioner would consider. Because the discloser was misled as to the issues the Commissioner would consider, she did not know the case she had to meet.

[80] In my view, this case cannot be analogized to Therrien. Here, the appellants knew from the outset that they bore the burden to provide information to the Commissioner sufficient to give him reason to believe that a wrongdoing had been committed; they quoted subsection 33(1) of the PSDPA at page 23 of their disclosure (Appeal Book at 637). In seeking to meet this burden with respect to wrongdoing under paragraph 8(e), they argued repeatedly that the information they put forward showed that the Embassy may have acted “contrary to,” “failed to follow,” “failed to implement,” or “breached” “specific government policies.” For example, in their closing comments at page 25 of their disclosure letter (Appeal Book at 639), the appellants submitted that it was the Commissioner’s responsibility “to look at the values espoused by the Canadian government in order to determine whether specific policies meant to implement those values were followed.”

[81] These submissions amounted, in substance, to submissions that the very requirements the appellants now say were novel – that a breach of a code of conduct must be a breach of official Government of Canada policies and that the policies must prescribe specific actions, so that they are capable of breach – were met. There was nothing novel in the Commissioner’s determination that the information provided by the appellants did not give him reason to believe that wrongdoing under paragraph 8(e) had been committed in the manner that the appellants alleged. His finding was not that a showing of wrongdoing under paragraph 8(e) requires in every case presence of the elements the appellants say were novel. On the contrary, his conclusion was that despite the appellants’ submissions aimed at showing that those elements were present in this case, they had not sufficiently been made out.

[82] I see no breach of procedural fairness on the first ground the appellants allege.

(2) Selectively reviewing only some of the evidence

[83] The appellants say that the Commissioner also violated his duty of procedural fairness by arbitrarily selecting for review, and reviewing, only some of the documents that were referred to in the footnotes to their disclosure letter, but were not themselves provided with the letter, and by not reviewing other relevant documents in this category. They point to the list of documents in the possession of the Office of the Commissioner in the certificate of record produced by the Office – a list that included three of the total of 79 documents that were footnoted but not provided.

[84] The appellants say that because the three documents were not provided with the disclosure letter, the Commissioner must have obtained them himself. They also note that the Office of the Commissioner told their counsel that the analyst assigned to the file would contact him if he needed more information, including the documents obtained through the access to information request, but that no request for further information or documents was ever made.

[85] The appellants make it clear that they do not submit the Commissioner was precluded from reviewing documents outside the four corners of the disclosure letter. Nor do they say that the Commissioner had to read every document to which the footnotes referred. But, they submit, if the Commissioner was going to review documents not provided with the disclosure letter, he was bound to do so “in a fair, transparent, and even-handed manner” (Appellants’ memorandum, paragraph 102). As will be seen below, the appellants make what is in substance the same submission as a ground on which the Commissioner’s decision should be quashed as unreasonable.

[86] As set out above in paragraph 55, the application judge was not persuaded that the Commissioner or the case analyst in the Office of the Commissioner did not review the footnoted documents other than the three listed in the certificate. He referred in particular to the documents to which the footnotes provided links, and saw it as “not logical or reasonable to infer that the Commissioner did not consider these documents.” He then suggested that these documents may have been reviewed online and that no paper copies were made.

[87] Looking at this question de novo, as we are obliged by Horrocks to do, I disagree with the application judge’s conclusion that the Commissioner or the Office of the Commissioner reviewed further footnoted documents beyond the three. I note first that the documents to which the application judge referred in setting out his conclusion on this question – those to which the footnotes provided online links – comprise only a portion – it appears less than half – of the footnoted documents. Therefore, a finding that the Commissioner reviewed this subset of the documents would not address the appellants’ concern.

[88] More importantly, it is striking that neither the case analysis nor the Commissioner’s decision letter made express reference to any of the documents referred to in the footnotes, apart from those described in the body of the disclosure letter. Instead, the case analysis and the decision letter consistently refer in setting out their conclusion to “the information provided.” Moreover, for the Commissioner not to search out and review the documents the appellants footnoted but did not provide, but instead to rely on the contents of the disclosure letter, would have been much more consistent with the disclosure regime set out in the PSDPA. As the Attorney General submits (at paragraph 62 of his memorandum), in line with what this Court stated in Gupta, “[u]nder the Act’s disclosure regime, the discloser decides the content and structure of their own disclosure – including whether to include certain documents, or simply describe their contents and reference them in footnotes.”

[89] The record does not explain why the appellants chose not to provide to the Commissioner the documents referred to in the footnotes when they submitted their disclosure letter. The appellants knew or should have known the nature of the disclosure regime, if only from the statement in the disclosure form they signed that it was “[their] responsibility to provide the Commissioner with all of the information required by [the] form and to attach any relevant documentation” (see paragraph 27 above). Their disclosure letter makes it plain that they were aware of the Commissioner’s broad discretion under subsection 33(1) and the related provisions, and that they understood that any decision to investigate had to be “a result of any information” they provided to the Commissioner.

[90] In my view, no procedural unfairness arose from the fact that the three documents were in the possession of the Office of the Commissioner, and that other documents referred to in the disclosure letter that would have been relevant were not. Neither the case analysis nor the Commissioner’s decision letter referred to or relied on any of the footnoted documents – either the three that were in the possession of the Office of the Commissioner or the many others that were not. Rather, the Commissioner’s decision letter repeatedly stated that his decision was based on “the information provided” by the appellants – information that did not include the footnoted documents. The Commissioner stated that in coming to his decision he conducted a “thorough review” of “the information provided.” We are entitled to take the Commissioner’s statements at face value, and to conclude having regard to them that the Office’s possession of the three footnoted documents but no others caused the appellants no prejudice.

[91] In concluding on this point, I would add that it would not appear practical for the Commissioner to have acted in accordance with the appellants’ submissions. As noted above, they accept that the Commissioner was entitled to review documents not provided with their disclosure letter. They also accept that the Commissioner was not bound to read every document to which the footnotes referred. However, they submit that if the Commissioner was going to review documents not provided with the disclosure letter, he had to do so “in a fair, transparent, and even-handed manner.” The appellants do not elaborate on what a review with these characteristics would entail. But at a minimum, it is not apparent how the Commissioner could have conducted this review without first reviewing all of the documents. In the end, then, the appellants’ submissions would impose on the Commissioner the obligation to review all of the documents to which the disclosure letter referred. Imposing this obligation would be inconsistent not only with the scheme of the PSDPA, but also with the appellants’ own submissions.

C. Should this Court consider the interveners’ international law and Charter arguments in determining whether the Commissioner’s decision was reasonable?

[92] Consistent with the order granting them leave to intervene (2020 FCA 198), the joint interveners Canadian Lawyers for International Human Rights and The International Justice and Human Rights Clinic, and the intervener Amnesty International Canada, submit that the PSDPA must be interpreted and applied taking into account Canada’s obligations under international law, including obligations under the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, and certain General Comments on the Covenant by the United Nations Human Rights Committee. They further submit, among other things, that international law imposes on Canada obligations to respect and protect human rights, and to provide effective remedies for their violation. They argue that these duties must inform the interpretation of “wrongdoing” in the PSDPA, and that the Commissioner must have regard to the international law right to an effective remedy in deciding under subsection 33(1) of the PSDPA whether to conduct an investigation.

[93] The joint interveners make similar submissions with respect to constitutional law. They submit that the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, must inform the interpretation of and administrative decision-making under the PSDPA, and that conduct that offends Charter values is “wrongdoing” within the meaning of the Act.

[94] As counsel for these interveners acknowledge, these submissions are all directed to the reasonableness of the Commissioner’s decision. They ask the Court to find that the decision was unreasonable, and that the application judge erred in not finding it unreasonable, because the Commissioner failed to consider Canada’s international law obligations, and (in the case of the joint interveners) the Charter and Charter values.

[95] It is of course the case that “in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker”: Vavilov at para. 114. And Charter values may also inform administrative decision-making: Doré v. Barreau du Québec, 2012 SCC 12 at para. 35.

[96] But leaving aside any assessment of the merits of these interveners’ submissions, there is a problem with our considering them in this appeal. They were not put to the Commissioner. Nor were they put to the Federal Court on judicial review.

[97] The appellants’ disclosure made just four brief mentions of international obligations. Two were to the United Nations’ Declaration on Human Rights Defenders, referred to above at paragraph 31. The appellants submitted that the second policy on which they relied was consistent with this Declaration (Appeal Book at 623, 637-38). The other two were to Canada’s obligations to the Organisation for Economic Co-operation and Development relating to corruption (Appeal Book at 632, 638). The disclosure made no mention at all of the Charter or Charter values. It is understandable, therefore, that the Commissioner did not address these subjects in his decision.

[98] The appellants’ notice of application for judicial review referred just once to international obligations, in stating that the policy with respect to human rights defenders “involved Canadian international obligations” (Appeal Book at 41). It too made no mention of the Charter or Charter values. It is, accordingly, also unsurprising that the application judge did not address these subjects either.

[99] The reasonableness of an administrative decision cannot normally be impugned on the basis of an issue not put to the decision maker: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 22-29; Canada (Citizenship and Immigration) v. R. K., 2016 FCA 272 at para. 6, leave to appeal refused, [2017] 1 S.C.R. xvi; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 at paras. 73-74, leave to appeal to S.C.C. sought, 39855 (25 October 2021). Rather, to respect legislative choice as to where primary decision-making authority lies, issues like those raised before us by the interveners should be decided at first instance by those in whom Parliament has vested responsibility to decide the merits – in this case, the Commissioner – not by a reviewing court or a court sitting on appeal from a reviewing court, whose roles are more limited. If the decision is then judicially reviewed, the reviewing court will have the benefit, in assessing reasonableness, of the decision maker’s reasons, experience and expertise. And if the matter then goes to appeal, the appellate court will have the further benefit (even if it is to decide on reasonableness de novo) of the reasons of the reviewing court: Oleynik v. Canada (Attorney General), 2020 FCA 5 at paras. 71-73, leave to appeal to S.C.C. refused, 39118 (15 October 2020); Bank of Montreal v. Canada (Attorney General), 2021 FCA 189 at para. 4, leave to appeal to S.C.C. sought, 39899 (December 8 2021).

[100] For these reasons, this Court should not consider the merits of the interveners’ international law and Charter arguments. I appreciate that the interveners were granted that status to address those very issues, and that our declining to decide them will cause disappointment. But it is for the panel hearing the appeal to decide, aided by its knowledge of the entire matter, what submissions it should entertain: Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 at para. 27.

D. Was the Commissioner’s decision reasonable?

[101] As I understand the appellants’ submissions, they say that the Commissioner’s decision was unreasonable in the following respects: (1) he failed to consider the appellants’ submission that there was wrongdoing under paragraph 8(d) of the PSDPA; (2) he adopted an unreasonably high threshold for determining whether an investigation was warranted under subsection 33(1); (3) he unreasonably interpreted paragraph 8(e) of the PSDPA; (4) he failed to account for the evidence before him; and (5) he failed to consider the potential harsh consequences of his decision. I will address in sequence each of these asserted grounds of unreasonableness.

(1) Failure to consider the appellants’ submission that there was wrongdoing under paragraph 8(d) of the PSDPA

[102] The appellants raise this issue (at paragraph 38 of their memorandum) as involving an error on the part of the application judge – his “most noticeable error” – in applying the reasonableness standard of review to the Commissioner’s decision. They describe the error as the failure to consider their argument that there was reason to believe the Embassy committed wrongdoing under paragraph 8(d) (“an act or omission that creates a substantial and specific danger to the life, health or safety of persons”). Because the standard of review on appeal calls for this Court to focus on the administrative decision rather than that of the Federal Court, and I agree that the application judge did not deal separately with paragraph 8(d), I will treat the issue as raising a ground on which the appellants assert that the decision of the Commissioner was unreasonable.

[103] It is indeed the case that the Commissioner did not consider the paragraph 8(d) issue separately. But in my view it was entirely reasonable for him to proceed as he did. That is because the appellants put their case for an investigation to the Commissioner on the basis that the danger to Mr. Abarca’s life arose from the failure to follow the three “policies” they argued the Embassy had to, but failed to, follow. In other words, they did not assert wrongdoing under paragraph 8(d) independent of their assertions of wrongdoing under paragraph 8(e). The Commissioner’s conclusion that the information provided gave him no reason to believe that wrongdoing had been committed under paragraph 8(e) made it unnecessary, therefore, for him to deal further with paragraph 8(d).

[104] The manner in which the appellants’ put their case on paragraph 8(d) is apparent from a review of their disclosure. While I have already reviewed their disclosure to some extent, at paragraphs 25 to 42 above, I will do so again with a focus on the appellants’ framing of the issues.

[105] At page 3 of their disclosure (Appeal Book at 617), the appellants identified what they described as “two types of wrongdoing that should be investigated.” In identifying the first issue, they referred to both the failure to follow the three policies and the Embassy’s failure to heed warnings that Mr. Abarca’s life and safety were in danger. The second issue they identified was whether there was a failure to report possible corruption. Similarly, at page 6 of the disclosure (Appeal Book at 620), they set out the first question to be considered as “did the Canadian Embassy fail to implement policies in relation to human rights defenders, and did the actions and omissions create a danger to the life and safety of Mariano Abarca?”

[106] Under the heading at page 8 of the disclosure, “Breach of policies related to conflicts in the extractive industry” (Appeal Book at 622), and at the first paragraph on that page, the appellants referred to both paragraphs 8(d) and 8(e), and submitted that the actions and omissions in relation to the policies may have created the conditions that resulted in the danger to Mr. Abarca’s life, health or safety. At the middle of page 10 (Appeal Book at 624), they similarly submitted that what should be investigated was whether the failure to follow the policies led to a substantial and specific danger to life, health or safety of persons in the community, including Mr. Abarca. In the same vein, the heading on page 16 (Appeal Book at 630) that referred to the danger to life was followed by a paragraph that again alleged the failure to follow the three policies, and the last line on the page contains a further allegation of failure to follow the policies. There was then a section on the failure to report corruption that made no reference to creating a danger to life or health.

[107] The Commissioner’s decision letter demonstrates that the Commissioner understood the appellants’ allegations in the same way. For example, at page 2 of the letter (Appeal Book at 45), he described the appellants’ submissions in part as follows (underlining added):

Regarding the first allegation, you contend that the Embassy’s alleged failure to adhere to the following “policies” intended to protect Mr. Abarca as a human rights defender constitutes a serious breach of a code of conduct and created a substantial and specific danger to Mr. Abarca’s life ....

[108] In expressing his conclusion at page 3 of the decision letter (Appeal Book at 46), the Commissioner similarly dealt with paragraphs 8(d) and 8(e) together: “in light of the foregoing, the information provided regarding the Embassy’s alleged failure to adhere to ‘policies’ does not suggest that wrongdoing pursuant to paragraphs 8(d) and (e) of the Act was committed.”

[109] I see nothing unreasonable in the Commissioner’s understanding of the case being put to him or in his dealing with the two types of alleged wrongdoing together.

(2) Adopting an unreasonably high threshold under subsection 33(1)

[110] The appellants submit that the Commissioner adopted an unreasonably high threshold for a decision to investigate under subsection 33(1). They say (at paragraph 75 of their memorandum) that “[t]he Commissioner ignored the rationale and purview of the statutory scheme by seeking to determine the claim on the merits rather than determining whether there was sufficient evidence to warrant an investigation.” They go on to say (at paragraph 78 of their memorandum) that “[a]n interpretation of s. 33(1) that is consistent with the legislative purpose would not require the Complaint itself to prove that wrongdoing had, in fact, occurred.” The appellants further submit (at paragraph 79) that the Commissioner “made his decision that there was no wrongdoing without knowing several key pieces of information,” including “information that could be gained through interviews with the Embassy personnel.”

[111] For ease of reference, I will set out again here the applicable portion of subsection 33(1) (emphasis added):

[112] The “reason to believe” standard the provision sets out is similar to the standard found in other statutes. For example, as the Federal Court observed in Agnaou v. Canada (Attorney General), 2017 FC 338 at para. 8, it is similar to the “reasonable grounds to believe” standard found in paragraph 19(1)(j) of the former Immigration Act, R.S.C. 1985, c. I2. The Supreme Court held in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114, that that standard “requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities” and that “[i]n essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information” (internal citations omitted).

[113] An appropriate starting point in assessing the appellants’ submissions on this point is a review of the Commissioner’s decision. Did he do as the appellants submit, and require the appellants to prove their claim of wrongdoing on its merits?

[114] In my view, he did not.

[115] At page 1 of his decision letter (Appeal Book at 44), the Commissioner set out his function under subsection 33(1) as follows (emphasis added):

Before I may commence an investigation based on information received from a member of the public, subsection 33(1) provides that I must have reason to believe that wrongdoing, as defined under section 8 of the Act, has been committed. I must also assess whether an investigation is in the public interest, taking into account sections 23 and 24 of the Act, which set out respectively, the restrictions and the discretionary factors that I must take into account in determining whether an investigation is warranted.

[116] How did he express his conclusion? At page 4 of his decision letter (Appeal Book at 47), he stated (emphasis added):

In light of the foregoing, the information provided in your disclosure does not give me reason to believe that wrongdoing was committed by the Embassy as defined at paragraphs 8(d) and (e) of the Act. As such, the requirements of subsection 33(1) of the Act have been met and it is not in the public interest to commence an investigation.

[117] In the body of his letter, the Commissioner used a variety of expressions in assessing the elements of the appellants’ disclosure, including “it does not appear that ...,” “it cannot be said that ...,” “it also appears that ...,” “it does not suggest that ...,” and “appears speculative.”

[118] Reading the Commissioner’s reasons holistically, as we must (Vavilov at para. 97), I cannot find that the premise for the appellant’s submissions on this point is made out: the Commissioner did not require proof of wrongdoing on the merits before he would commence an investigation. There is no need, therefore, to consider further this ground of asserted unreasonableness. I will add only that any interpretation of subsection 33(1) that would, in effect, require the Commissioner to conduct an investigation to determine whether to conduct an investigation would run directly counter to the scheme of the Act as recognized in Gupta and other cases.

(3) Unreasonable interpretation of paragraph 8(e) of the PSDPA

[119] The appellants’ submission on this asserted ground of unreasonableness is that the Commissioner unjustifiably introduced new criteria into paragraph 8(e) (“a serious breach of a code of conduct”) – that if the breach alleged is a breach of policies, the policies must prescribe “specific” actions and the policies must be “official.” This is in substance the same submission as their first submission asserting procedural unfairness, discussed above at paragraphs 78 to 81. For substantially the same reasons as those there discussed, I would not find any unreasonableness on this ground.

(4) Failure to account for the evidence before him

[120] In putting forward this ground of unreasonableness, the appellants rely on the statement in Vavilov (at para. 126) that “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” They point again to the listing in the Office of the Commissioner’s certified record of only three of the 79 documents footnoted in their disclosure letter, and submit (at paragraph 51 of their memorandum) that “not only did the Commissioner not account for this evidence, he did not even review it.” As I understand it, they also assert two more specific failures – first, a failure to account for evidence they say should have given the Commissioner reason to believe that the Embassy’s acts or omissions created a substantial and specific danger to Mr. Abarca’s life, health or safety; and second, a failure to explain why the policies they put forward were not official policies that prescribed specific actions.

[121] I do not accept the appellants’ submission that there was a failure to account for the evidence consisting of not reviewing the documents that the appellants footnoted but did not provide. As discussed several times above, under the scheme of the PSDPA, it was incumbent on the appellants to identify and provide the documents they wanted the Commissioner to consider. He cannot be faulted for not reviewing what they did not provide.

[122] As for the two more specific failures the appellants assert, I would first observe that care must be taken to ensure that arguments alleging failure to account for evidence not erode the general prohibition (see Vavilov at para. 125, referred to above at paragraph 62) on a reviewing court’s “reweighing and reassessing the evidence considered by the decision maker.”

[123] In asserting the first of these failures, the appellants submit (at paragraphs 48 to 53 of their memorandum) that their disclosure “established that the Embassy knew Abarca’s life was in danger and mine employees threatened people participating in protests.” They assert that the Commissioner’s failure to address this evidence directly in his reasons rendered his decision unreasonable.

[124] But the evidence to which the appellants refer for this submission largely comprises evidence that was footnoted but not provided to the Commissioner, and was therefore (as discussed above at paragraphs 88 and 89) not before him. Setting aside the evidence in this category, the appellants’ argument (at paragraph 50 of their memorandum) rests on a single piece of evidence: a 2010 fact-finding report that investigated the circumstances of Mr. Abarca’s death. The Embassy is mentioned only briefly in the document, and only in the context of its general support of Blackfire’s business interests in Mexico (Appeal Book at 767). This was not evidence of the kind for which the Commissioner was obliged specifically to account.

[125] As for the second specific failure, the appellants assert (at paragraphs 63 to 66 of their memorandum) that the Commissioner failed to consider evidence that the CSR Strategy document and the “guidelines” identified in the December 2009 statement to the Toronto Star met his own definition of policy. These documents are described at paragraph 31 above.

[126] Here too there was, in my view, nothing that rose to the level of a failure to account for the evidence. The Commissioner discussed at page 2 of his decision letter (Appeal Book at 45) the information concerning these documents the appellants had provided. He concluded, based on that information and his understanding, that these documents were not of a kind that could give rise to wrongdoing under paragraph 8(e).

[127] I would not give effect to the appellants’ submissions that there were failures to account for the evidence that render the Commissioner’s decision unreasonable.

(5) Failure to consider the harsh consequences of the decision

[128] In submitting that the Commissioner’s decision was unreasonable in this respect, the appellants rely on the statement in Vavilov (at para. 133) that “if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.”

[129] The appellants submit (at paragraphs 56 and 68 of their memorandum) that the Commissioner failed to take into account “the significant impact of the Decision, not only on the family of Mr. Abarca, but on human rights defenders in Mexico and across the world, and on the integrity and democratic accountability of the Canadian government.”

[130] In my view, the Commissioner’s decision cannot be considered unreasonable on this basis. When the passage from Vavilov the appellants cite is read in context, it is apparent that the Court’s concern, recognizing the sometimes “extraordinary” degree of power that administrative decision makers have over our lives, is to protect those “over whom authority is being exercised,” and particularly the vulnerable, from arbitrary exercises of power: see Vavilov at paras. 133-135.

[131] Leaving aside for the moment the impact on Mr. Abarca’s family, the concerns the appellants put forward as “particularly harsh consequences” do not bear on any individual’s life, liberty, dignity, or livelihood, or on any power imbalance between administrative decision makers and those whom they regulate. Instead, they relate to the potential policy implications of the Commissioner’s decision, and seek to ascribe broad precedential value to a screening decision grounded in the specific body of information the appellants provided.

[132] As for the impact on Mr. Abarca’s family, the appellants stated in their disclosure letter (Appeal Book at 618) that an investigation by the Commissioner would be important for providing some closure for the family, who continue to seek justice for Mr. Abarca’s assassination. The Commissioner made clear at the outset of his decision letter (Appeal Book at 44) that he recognized the impact of their loss. He then went on to explain in the balance of his decision letter why, in his assessment, his decision not to investigate reflected the intention and the requirements of the PSDPA. It is not clear from the appellants’ submissions what more, apart from coming to a different conclusion, the appellants would have had him do.

[133] Thus, even accepting that this is a case of particularly harsh consequences, that would not provide a basis for finding the Commissioner’s decision unreasonable.

XI. Proposed disposition

[134] For the reasons I have set out, I would dismiss the appeal. In all of the circumstances, I would make no award of costs.

“J.B. Laskin”

“I agree.

Wyman W. Webb J.A.”

“I agree.

Marianne Rivoalen J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-290-19

(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE BOSWELL OF THE FEDERAL COURT DATED JULY 18, 2019 (DOCKET NUMBER T-911-18))

STYLE OF CAUSE:	MIRNA MONTEJO GORDILLO and OTHERS v. ATTORNEY GENERAL OF CANADA and AMNESTY INTERNATIONAL CANADA and OTHERS
PLACE OF HEARING:	Ottawa, Ontario
DATE OF HEARING:	November 8, 2021
REASONS FOR JUDGMENT BY:	LASKIN J.A.
CONCURRED IN BY:	WEBB J.A. RIVOALEN J.A.
DATED:	FEBRUARY 9, 2022

APPEARANCES:

Yavar Hameed Nicholas Pope	For The Appellants (IN PERSON)
Lynn Marchildon Blake van Santen	For The Respondent (BY VIDEO CONFERENCE)
Daniel Sheppard Louis Century	For The Interveners AMNESTY INTERNATIONAL CANADA (BY VIDEO CONFERENCE)
Jennifer Klinck Joshua Sealy-Harrington Penelope Simons	For The Interveners CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS and the international justice and human rights clinic (IN PERSON)
David Yazbeck	For The Interveners THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY (BY VIDEO CONFERENCE)

SOLICITORS OF RECORD:

Hameed Law Ottawa, Ontario	For The Appellants
A. François Daigle Deputy Attorney General of Canada	For The Respondent
Goldblatt Partners LLP Toronto, Ontario	For The Interveners AMNESTY INTERNATIONAL CANADA
Power Law Vancouver, British Columbia Faculty of Law (Common Law Section) University of Ottawa Ottawa, Ontario	For The Interveners CANADIAN LAWYERS FOR INTERNATIONAL HUMAN RIGHTS and the international justice and human rights clinic
Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, Ontario	For The Interveners THE CENTRE FOR FREE EXPRESSION AT RYERSON UNIVERSITY