ADMINISTRATIVE LAW
Judicial Review
Standard of Review
Judicial review of report by Public Service Integrity Officer (PSIO) regarding allegations of Health Canada wrongdoing— Four applicants were doctors employed by Health Canada’s Veterinary Drugs Directorate—PSIO was created under Treasury Board policy (Policy) in accordance with Financial Administration Act—Dr. Keyserlingk appointed PSIO by order in council—Policy objective to protect federal public service “whistleblowers” from reprisal—PSIO’s mandate: act as neutral entity on matters of internal disclosure of wrongdoing—Dr. Lambert, one of applicants, expressed concerns about approval of new drug submission (NDS) for certain veterinary drugs without required human safety data—Chief of Human Safety Division had earlier determined review of drug unnecessary—Due to Dr. Lambert’s concerns, human safety review carried out after which management confirmed issuance of notice of compliance (NOC)— Applicants complained to PSIO being pressured by supervisors to “tow [sic] the management line to favour the pharmaceutical lobby or face departmental punishment(s)”— PSIO decided to examine drug approval, decision‑making process, as this aspect of internal disclosure had no alternative recourse and was of great public interest—Declined to consider other issues for which alternative recourse such as grievance procedure—PSIO determined allegations unfounded though finding instance of reprisal against Dr. Lambert— PSIO concluded many aspects of decision‑making process, information required in NDS provided for by regulatory framework and, while New Drug Submissions Guidelines appear not to provide discretion to allow manufacturer to omit human safety data, they lack Regulations’ obligatory force— NOCs at issue granted in accordance with Act, Regulations— Complainants failed to give specific examples of being pressured to approve drugs contrary to their scientific opinion —Disciplinary actions related to conduct not directly related to role as drug evaluators—No evidence disciplinary actions were for refusal to favour pharmaceutical lobby—Still, Dr. Lambert was subject of reprisal for expressing good faith concerns and such is expressly prohibited—Issues: (1) review standard; (2) whether PSIO’s investigation in accordance with mandate; (3) whether procedural fairness requirements observed—Applicants argue for correctness standard—No privative clause—PSIO considers broad range of legal issues on ad hoc basis—Favours no deference on judicial review— PSIO lacking expertise in legal, scientific matters called on to consider—Given importance of issues PSIO required to investigate, protect, imperative its jurisdiction be exercised correctly and close judicial scrutiny necessary—Given scope of work of federal public servants, inevitable issues will arise concerning wrongdoing which, if undetected, could have serious adverse impact on safety, well‑being of Canadians— Applicants suggest PSIO failed to properly analyse issue whether Ministerial discretion properly applied herein— Applicants allege gross mismanagement, failure to have proper regard for objective scientific concerns—Submit that, in March, 1998, manufacturer was advised, contrary to Act, Regulations, departmental policy, human safety data need not be submitted and NOCs were later issued—Applicants further say were subjected to harassment, negative performance appraisals, even during PSIO investigation, but PSIO refused to examine whether punishments justified—While maintained there is Departmental culture of indirect pressure to approve drugs of questionable safety, PSIO did not inquire into systemic practices, as is done in human rights cases— Applicants argue that, in not knowing or being able to respond to employer’s submissions, employees were denied right to procedural fairness—Respondent suggested Parliament, in creating PSIO, contemplated centre of expertise so that high degree of deference appropriate—Purpose of Policy not to determine rights, adjudicate between litigation parties— Highly discretionary, fact‑based nature of PSIO’s work favours deference—Role of PSIO not to conduct free‑ranging inquiry into everything that happened in Department during indeterminate period which might amount to pressure on someone—Lower level of procedural fairness required as PSIO not adjudicating rights in adversarial context—To require PSIO to furnish employees copies of material reviewed during investigation would create procedural formalism inconsistent with purpose of Policy—Applying pragmatic, functional analysis, Court deciding appropriate review standard herein (except as to procedural fairness) is reasonableness simpliciter—While PSIO merits no deference in interpreting Act, Regulations, entitled to higher deference level as to discretionary complaint screening, fact‑intensive investigation and some deference owed as to questions of mixed fact, law—As for purpose of Policy, while process fact driven, might involve issues of wider public interest and some deference due PSIO—Problem both public, private in nature so some deference owed PSIO—Correctness standard always applies to question of procedural fairness—PSIO must undertake complete investigation of issues raised by applicants —At meeting, applicants informed PSIO “Component with Tylan” but one example of problems with drug approval process, two other drugs mentioned—At series of meetings, applicants provided PSIO with detailed information on drugs “Revalor H”, “Synergistin Injectable Suspension”, “Baytril”, “rBST”, “Carbodex”, “Baycox”, “Component with Tylan” and “Eugenol”—Dr. Chopra swore affidavit that at meeting with Dr. Keyserlingk it was agreed investigation would initially include “Component with Tylan” and “Baytril” but would expand to other files—Upon review of e‑mails between applicants, PSIO, Court persuaded report to deal with more than just five NDS for “Component with Tylan”—But report reveals PSIO’s analysis extended only to “Component with Tylan”—Once PSIO determines matter falls within his jurisdiction, he must investigate it—Issue of other drugs referred to in correspondence was before PSIO and had to be dealt with—Had he done so, could have impacted on allegation as to pressure to approve possibly unsafe drugs— PSIO erred in law in failing to conduct investigation in accordance with mandate—Application allowed—Financial Administration Act, R.S.C., 1985, c. F‑11.
Chopra v. Canada (Attorney General) (T‑624‑03, 2005 FC 595, O’Keefe J., order dated 29/4/05, 30 pp.)