T-1753-18
2019 FC 975
v.
Attorney General of Canada (Respondent)
Indexed as: Chapman v. Canada (Attorney General)
Federal Court, Zinn J.—Ottawa, July 4 and 23, 2019.
Ethics — Procedural fairness — Judicial review of Department of National Defence, Assistant Deputy Minister – Review Services (ADM(RS)) decision to accept investigator’s report finding that applicant having engaged in wrongdoing under Public Servants Disclosure Protection Act (PSDPA) — National Defence employee alleging in letter that applicant engaging in wrongdoing — Applicant not provided with letter, particulars prior to investigation — Investigator finding, inter alia, applicant not accommodating employee, gross mismanagement occurring pursuant to PSDPA, s. 8(c) — Report not provided to applicant — Whether rights accorded to applicant consistent with duty of procedural fairness — Applicant not given right to be heard or opportunity to know case against her — Duty of fairness triggered herein — PSDPA, s. 27(3) providing clear directive as to duty to provide subjects of investigation full opportunity to answer allegations made against them — Applicant entitled to procedural fairness at high end of scale — Not afforded several protections herein, including right to know what was said against her —Report unfair, could not be basis for fair, reasonable new decision — Process having to be started afresh, or Report revised — ADM(RS) decision set aside — Application allowed.
This was an application for judicial review of a decision by the Assistant Deputy Minister – Review Services (ADM(RS)) of the Department of National Defence to accept an investigator’s report finding that the applicant engaged in wrongdoing under the Public Servants Disclosure Protection Act (PSDPA).
An employee with the Office of the National Defence and Canadian Forces Ombudsman (Office) wrote to the ADM(RS) concerning incidents of alleged wrongdoing and named the applicant, the Director of Investigations in the Office, as one of those who had engaged in the wrongdoings. The issue that led to application herein involved the suicide of an employee with a history of mental health issues who reported to the applicant. The applicant was not provided with this letter prior to the investigation. No particulars were provided to the applicant regarding the allegations prior to her interview by the investigator. The investigator found, inter alia, that the applicant failed to accommodate the employee, and treated the employee’s health symptoms as a performance issue requiring discipline. The report further stated that on a balance of probabilities, gross mismanagement occurred pursuant to paragraph 8(c) of the PSDPA. The report was not provided to the applicant. The ADM(RS) stated that the investigation supported a finding of wrongdoing of gross mismanagement. The applicant submitted that she was denied procedural fairness.
The main issue was whether the rights accorded to the applicant were consistent with the duty of procedural fairness.
Held, the application should be allowed.
The applicant was not given a meaningful right to be heard or given the opportunity to know the case against her at any stage of the process. The decision affected the applicant’s rights, privileges or interests and therefore the doctrine of duty of fairness was triggered. The investigation was a process leading to a decision that there was workplace wrongdoing. It involved extensive interviews, evidence gathering, and the potential for punishment. It was not unlike wrongful dismissal actions or arbitration hearings. The PSDPA provides those who wish to disclose potential wrongdoing with two avenues: a complaint may be made (1) to the Public Sector Integrity Commissioner, or (2) to one’s supervisor or a senior officer. There is no principled basis to find that one is entitled to different procedural protection depending on the avenue of complaint selected by the discloser. The PSDPA explicitly states that the applicant had an equal right to procedural fairness and natural justice. It is wrong to suggest that entitlement to procedural fairness is in any way to be assessed based on one’s education or status. Subsection 27(3) of the PSDPA provides a very clear directive as to the duty to provide the subjects of an investigation, such as the applicant in this case, a full opportunity to answer the allegations made against them. It was clear that the applicant was entitled to procedural fairness at the high end of the scale given the important interests at stake, her legitimate expectations, and specific requirements in the PSDPA that she receive procedural fairness. The applicant was not afforded several protections. Although the applicant had opportunities to speak with the investigator, to provide comments and to submit evidence, the value of those processes was severely attenuated by not knowing what was said against her. It was not explained why it would not have been possible to provide any information regarding the allegations against the applicant while still protecting the identity of the discloser and other witnesses. If the applicant had seen the report, she could have both offered explanations to bolster her own credibility, and pointed out the weaknesses in the evidence that the investigator relied upon. In those circumstances, it could not be concluded that the decision maker would have reached the same result. The report was unfair and could not be the basis of any fair and reasonable new decision. Either the process had to be started afresh, or the Report, as it presently stood, revised. The decision of the ADM(RS) was set aside, and the allegation of wrongdoing was to be decided by a different decision maker.
STATUTES AND REGULATIONS CITED
Federal Courts Rules, SOR/98-106, r. 318.
Public Servants Disclosure Protection Act, S.C. 2005, c. 46, ss. 11(1)(c)(i), 22(d), 27(3).
CASES CITED
APPLIED:
Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193.
CONSIDERED:
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, (1987), 78 A.R. 1.
REFERRED TO:
Swarath v. Canada (Attorney General), 2015 FC 963, 11 Admin. L.R. (6th) 25; Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 367; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, (1985), 24 D.L.R. (4th) 44; El-Helou v. Courts Administration Service, 2012 FC 1111, 4 C.C.E.L. (4th) 102; Marchand v. Public Service Integrity Commissioner, 2014 FC 329, 452 F.T.R. 182; Lemelin v. Canada (Attorney General), 2018 FC 286; Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1.
APPLICATION for judicial review of a decision by the Assistant Deputy Minister – Review Services of the Department of National Defence to accept an investigator’s report finding that the applicant engaged in wrongdoing under the Public Servants Disclosure Protection Act. Application allowed.
APPEARANCES
Michael Fisher for applicant.
Spencer Shaw for respondent.
SOLICITORS OF RECORD
Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1] Zinn J.: Ms. Chapman was found to have engaged in wrongdoing (gross mismanagement) under the Public Servants Disclosure Protection Act, S.C. 2005, c. 46 (PSDPA) in failing to accommodate a disability (mental health issue) during a disciplinary process. She was denied procedural fairness in the investigation and in the decision-making process. The decision to accept the investigator’s findings that she engaged in wrongdoing must be set aside.
Background
[2] Ms. Chapman holds the position of Director of Investigations in the Office of the National Defence and Canadian Forces Ombudsman. On April 18, 2017, Patrick Martel, a senior investigator with that office, wrote to the Assistant Deputy Minister – Review Services (ADM(RS)) concerning what he described as “an internal disclosure of wrongdoings”. His letter listed eight separate incidents of alleged wrongdoing and named six individuals within the office as having engaged in one or more of the wrongdoings he identified. Ms. Chapman was named in two; one of those was determined to be unfounded.
[3] The issue that led to this application involved the suicide of an employee, referred to in these reasons as AB, who reported to Ms. Chapman.
[4] In order to understand the significance of some of the submissions made in this application, the original letter of the discloser, Mr. Martel, regarding this issue is set out.
On 6 April 2017, AB committed suicide. I am told he was being subjected to a series of internal discipline procedures administered by Ms. Chapman. The day he was to attend a disciplinary hearing in front of Ms. Chapman, he was found dead in a hotel room.
AB was a jovial individual who nonetheless had a well-known recent history of mental health issues. He had shared with many colleagues that in recent years he had to take time off work due to depression. AB associated his depression with pressures he had endured at work for speaking up to management when he felt compelled. AB was 62 years old. It was well known that he had set to retire at the end of 2017. Many thought that this long forecasted retirement plan was a way for AB to pre-empt some of the pressures he felt to be ousted from his employment, and that he was not ready to retire.
It is difficult to imagine that managers at the DND and CAF Ombudsman were oblivious to the risks associated with the chosen path of actions towards AB. Managers of the DND and CF Ombudsman knew better. Their actions may be qualified as reckless or wilful blindness. At this time, the Ottawa Police has not released the 70-page suicide note left by AB. It may be that the Ottawa Police will conclude that no crime was committed. However, there may be administrative matters worth considering.
The DND and CAF Ombudsman has the vital role of assisting military and civilian personnel who may struggle with depression, suicidal ideation, and work pressures. Ensuring that staff working for the Ombudsman—especially in the important role of director of investigations—is competent and know how to recognize and minimize suicide risk is in the public interest.
On Thursday, 7 April 2017, Ms. Chapman, Director of Investigations, and Ms. Parker, Director of Systemic Investigations, communicated with employees to announce the suicide death of AB. Ms. Parker delivered to me a very controlled message in which she said there were no signs, nothing could have provided a hint that AB would resort to suicide. I told her that I was not overly surprised of this outcome because of the way she and Ms. Chapman had been treating certain employees. I told Ms. Parker that they ought to have known, given AB’s history of mental health issues, the way they were treating him was very risky.
Employees who felt a need to reach out to others to announce the sad news were scolded by Ms. Chapman. They were told not to deliver the news to others; it would be done by management only. I was told that, oddly, the Director of Investigation, Ms. Chapman; the Director of Systemic Investigations, Ms. Parker; the Staff Officer to the Ombudsman, Ms. Hadi and Mr. Walbourne, the Ombudsman, did not attend the wake or funeral.
Despite all this, only a full investigation can determine what really took place.
[5] Mr. Martel listed as potential witnesses and corroborating evidence: the suicide note, the personal, labour relations, and medical files of AB, Robert Basque (Union Steward), and Bob Howard (another colleague).
[6] Few, if any, of Mr. Martel’s allegations against Ms. Chapman were based on first-hand knowledge. Ms. Chapman was never provided with this letter and saw it only after it was produced in this application pursuant to rule 318 of the Federal Courts Rules [SOR/98-106].
[7] By letter of July 28 2019, the ADM(RS) wrote to Ms. Chapman to advise that he had received a disclosure of wrongdoing under the PSDPA, and that an independent third party would be retained to “conduct a preliminary assessment into these allegations.” The relevant allegation against Ms. Chapman was described in the notification letter as “Gross Mismanagement (disciplinary actions)”. No particulars were provided.
[8] By letter dated October 31, 2017, the ADM(RS) informed Ms. Chapman that the preliminary assessment was completed and “it has been determined that a formal investigation is warranted”. Deborah Jelly of Glencastle Security Inc., who had conducted the preliminary assessment, was selected to conduct the formal investigation.
[9] After being advised by the ADM(RS) that Ms. Jelly would begin interviews in early January, Ms. Chapman wrote to the ADM(RS) on January 12, 2018, seeking disclosure:
I would like to know the substance of the allegation(s) made against me prior to the interview so that I am able to adequately prepare a response.
[10] The ADM(RS) responded to this request on January 31, 2018, stating “I will remind you that the allegations were outlined in my letter to you of 31 October 2017”. That “outline” is the phrase “Gross Mismanagement (disciplinary action)”. No particulars were provided to Ms. Chapman prior to her interview or thereafter before making the decision under review.
[11] Ms. Jelly conducted 12 other interviews before interviewing Ms. Chapman on March 29, 2018. She informed Ms. Chapman that in keeping with the department’s guidelines, Ms. Chapman was not permitted to take notes but would be permitted to review Ms. Jelly’s notes of the interview for accuracy. While not at issue, I note that the departmental guidelines do not state that an interviewee cannot take notes or record the interview; rather, it states that any notes or recording cannot be kept by the interviewee but must be handed over to the interviewer “as the information created in the process belongs to the investigation”.
[12] On April 27, 2018, Ms. Chapman met with an associate of Ms. Jelly to review the notes of her interview, and she made some corrections and additions to them.
[13] Ms. Jelly completed her report in May 2018 (the Report), and in it made the following findings regarding the issue identified by the ADM(RS):
The errors in Ms. Chapman’s management of AB and her failure to provide accommodation constitute more than trivial wrongdoing or negligence; they are actions and inactions which create substantial risk of significant adverse impacts on the ability of the organization, office or unit to carry out its mandate.
Ms. Chapman’s conduct poses a serious threat to public confidence in the integrity of the public service.
Ms. Chapman’s conduct and inaction regarding her failure to provide accommodation to AB and her treatment of AB’s health symptoms as a performance issue requiring discipline is consistent with any reasonable definition of gross mismanagement under the Public Service Disclosure Protection Act.
Having regard to the totality of the information available and on the balance of probabilities, Allegation One is supported and a Gross Mismanagement (Discipline) under the Public Service Disclosure Protection Act 8(c) (Reference C) has occurred.
[14] The Report was not provided to Ms. Chapman. She first saw it as part of the rule 318 disclosure.
[15] The ADM(RS) received the report and accepted its conclusions. On September 8, 2018, the ADM(RS) wrote to Ms. Chapman to inform her of the result of the investigation. He wrote that “you were previously informed of the allegations and were provided with an opportunity to respond”. He described the relevant allegation as “Failure to accommodate a disability (mental health problem) during a disciplinary process” and stated that the allegation is founded. He stated that the investigation supported a finding of wrongdoing of gross mismanagement under the PSDPA. He concluded by stating that the Deputy Minister “has been informed of the results of the investigation, and will direct whatever corrective action is deemed appropriate”.
[16] Ms. Chapman submits that she was denied procedural fairness. She asks the Court to review and set aside this decision and refer the matter back to a different decision maker to be dealt with in accordance with the Court’s reasons.
Standard of Review
[17] Ms. Chapman submits that the standard of review is correctness, which means that there is no deference to the ADM(RS)’s choice of procedure or his views of the fairness of the procedure. Several cases are cited in support of this proposition: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 (Khela), at paragraph 79; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 (Canadian Pacific), at paragraph 34; Swarath v. Canada (Attorney General), 2015 FC 963, 11 Admin. L.R. (6th) 25, at paragraph 23. Canada submits that the standard of review is reasonableness, relying on Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 367 (Maritime Broadcasting).
[18] The issue of the appropriate standard of review is a bit more nuanced that simple correctness, but the passage quoted from Maritime Broadcasting relied on by Canada is not the state of the law. As explained in Canadian Pacific, at paragraph 38:
In Maritime Broadcasting …, decided before Khela, a reasonableness standard was expressed, but only in dissent. [Citations omitted.]
[19] Canadian Pacific is the most recent of the cases cited by Ms. Chapman, and is the most useful. From paragraph 32 to 57, it explains the state of the law, which had been confused by decisions applying “correctness with an element of deference.” At paragraph 34, the Federal Court of Appeal accepts that Khela means that “correctness” continues to be the standard of review:
Procedural fairness is a matter for the reviewing court to determine and, in so doing, “the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be ‘correctness’” (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 (Khela), at paragraph 79). The use of the word “continues” is instructive. Khela did not change what Evans J.A. previously characterized as “[t]he black-letter rule” that allegations of procedural fairness are reviewed on a standard of correctness (Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170, 72 Admin. L.R. (5th) 1, at paragraph 34).
Analysis of Procedural Fairness Owed to Ms. Chapman
[20] While the amount of procedural fairness owed may be variable, as Canada submits (relying on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker)), at the end of the day, as noted by the Federal Court of Appeal, at paragraph 56 of Canadian Pacific, deference is not a valid consideration:
No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. It would be problematic if an a priori decision as to whether the standard of review is correctness or reasonableness generated a different answer to what is a singular question that is fundamental to the concept of justice—was the party given a right to be heard and the opportunity to know the case against them? Procedural fairness is not sacrificed on the altar of deference.
[21] Canada does not dispute that Ms. Chapman is entitled to be dealt with in a procedurally fair manner during the process leading to the decision under review; rather, it submits that “the process the employer selected was procedurally fair”. In so saying, Canada relies again on Baker. The issue before the Court there was whether the rights accorded to the appellant were consistent with the duty of procedural fairness. That is the very issue in this application.
[22] There, as here, the decision affected “the rights, privileges or interests of an individual” and therefore the doctrine of duty of fairness was triggered: Baker, at paragraph 20; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 653.
[23] The doctrine of duty of fairness is “eminently variable and its content is to be decided in the specific context of each case”: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at page 682. Specifically at paragraph 22 of Baker, the Supreme Court noted that the nature of the duty of fairness applicable to a decision-making process will require the Court to appreciate “the context of the particular statute and the rights affected”. Moreover, Justice L’Heureux-Dubé observed that underlying all the factors to be considered when determining the duty of fairness required “is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.”
[24] The Supreme Court in Baker identified five factors recognized in the jurisprudence that are relevant to determining what is required by the duty of procedural fairness in any case. It also clearly stated that the list was not exhaustive and that there may be other factors.
[25] The first factor relevant to determining what is required by the duty of procedural fairness is described in Baker, at paragraph 23 as “the nature of the decision being made and the process followed in making it.” The Court observed:
…The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.
[26] Canada submits that “the investigation into workplace wrong doing is not the same as a court process”. Canada overlooks that this was not merely an investigation; it was a process leading to a decision that there was workplace wrongdoing. It involved extensive interviews, evidence gathering, and the potential for punishment. In my view, it was not unlike wrongful dismissal actions or arbitration hearings. Each of those involves a process leading to a decision on employee misconduct.
[27] The second factor relevant to determining what is required by the duty of procedural fairness is described in Baker, at paragraph 24 as “the nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (reference omitted). The Supreme Court pointed out that the “role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made.”
[28] As to this factor, Canada submits that “[i]t is clear that the statutory nature of investigation under the PSDPA is focused on having procedural protections for the discloser.” While it is certainly true that the PSDPA provides protections to those who disclose wrongdoing, it is not as limited as Canada suggests.
[29] As was noted by Ms. Chapman in oral argument, the PSDPA provides those who wish to disclose potential wrongdoing with two avenues: a complaint may be made to the Commissioner, or to one’s supervisor or a senior officer. Canada agrees with Ms. Chapman, as do I, that there is no principled basis to find that one is entitled to different procedural protection depending on the avenue of complaint selected by the discloser.
[30] Paragraph 22(d) of the PSDPA provides that it is the duty of the Commissioner to “ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making [the] disclosures, witnesses and persons alleged to be responsible for wrongdoings” (emphasis added). While Canada is correct that persons making disclosures and witnesses must be protected, the PSDPA explicitly states that Ms. Chapman had an equal right to procedural fairness and natural justice.
[31] The third factor relevant to determining what is required by the duty of procedural fairness is described in Baker, at paragraph 25 as “the importance of the decision to the individual or individuals affected.” The Court notes that the “more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.”
[32] Canada submits that unlike Ms. Baker, who the Supreme Court ultimately found was not entitled to an oral hearing, Ms. Chapman is a well-educated manager. I find it offensive and quite simply wrong to suggest that entitlement to procedural fairness is in any way to be assessed based on one’s education or status. The ADM(RS) is entitled to the same procedural fairness as the most junior clerk in the department when each faces the same disciplinary action.
[33] While I agree with Canada that one’s work and professional reputation are not the same as deportation, which Ms. Baker faced, a threat to one’s job is by no means trivial. Indeed, as Chief Justice Dickson stated in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at paragraph 91 [page 368]:
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
[34] In any case, Ms. Chapman pointed out that Canada’s analogy to Baker is flawed because unlike Ms. Baker, Ms. Chapman’s position is not that she is entitled to an oral hearing, but that she is entitled to know the case against her and be given an opportunity to respond, which could have been in writing.
[35] Canada further notes that “Ms. Chapman has yet to receive any discipline.” To this last point, I note that Canada did not suggest that no discipline will be imposed on Ms. Chapman as a consequence of the decision of the ADM(RS) that she has engaged in wrongdoing.
[36] Under the PSDPA, there are consequences to an individual found to have engaged in wrongdoing even if disciplinary action has not been taken. Subparagraph 11(1)(c)(i) of the PSDPA provides that a chief executive “must … if wrongdoing is found as a result of a disclosure made under section 12, promptly provide public access to information that describes the wrongdoing, including information that could identify the person found to have committed it if it is necessary to identify the person to adequately describe the wrongdoing”. Given the wrongdoing references AB’s mental health issues and suicide and the disciplinary process used by his superior, I agree with Ms. Chapman that her identity will become known and this will impact her professional reputation.
[37] The fourth factor relevant to determining what is required by the duty of procedural fairness is described in Baker, at paragraph 26 as “the legitimate expectations of the person challenging the decision.” Canada submits that “the employer followed the DAOD [Defence Administrative Orders and Directives] 7024-1, Internal Procedure for Disclosure of Wrongdoings in the Workplace, and hired an independent third party from outside the department to conduct a preliminary assessment and investigation”. It says that Ms. Chapman was not treated any differently from others and that the choice to follow its policy should receive deference.
[38] The policy Canada relies on says virtually nothing about the process the investigator is to follow, or the process to be followed by the ADM(RS) after receiving the report and prior to making a decision. On the other hand, subsection 27(3) of the PSDPA provides a very clear directive as to the duty to provide the subject of an investigation, such as Ms. Chapman in this case, a full opportunity to answer the allegations made against her:
27 …
Opportunity to answer allegations
(3) It is not necessary for the Commissioner to hold any hearing and no person is entitled as of right to be heard by the Commissioner, but if at any time during the course of an investigation it appears to the Commissioner that there may be sufficient grounds to make a report or recommendation that may adversely affect any individual or any portion of the public sector, the Commissioner must, before completing the investigation, take every reasonable measure to give to that individual or the chief executive responsible for that portion of the public sector a full and ample opportunity to answer any allegation, and to be assisted or represented by counsel, or by any person, for that purpose. [Emphasis added.]
[39] The fifth factor relevant to determining what is required by the duty of procedural fairness is described in Baker, at paragraph 27 as “the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances”. The Court notes that while the choice made by the decision maker, “is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints”. Canada submits that the choice to use a third party to produce a final report should be respected and this process was selected to strike “an appropriate balance between investigating a wrongdoing fairly and efficiently, while giving those affected a chance their case and present their side of the story”.
[40] Considering the Baker factors together, it is clear that Ms. Chapman is entitled to procedural fairness at the high end of the scale given the important interests at stake, her legitimate expectations, and specific requirements in the PSDPA that she receive procedural fairness. Although steps may need to be taken to protect persons making the disclosures and, witnesses as explained in the PSDPA¸ that Act also required that Ms. Chapman be given a full and ample opportunity to answer any allegation made against her. This is consistent with other findings by this Court on the degree of procedural fairness required to be given to persons under investigation under the PSDPA: see El-Helou v. Courts Administration Service, 2012 FC 1111, 4 C.C.E.L. (4th) 102; Marchand v. Public Service Integrity Commissioner, 2014 FC 329, 452 F.T.R. 182; Lemelin v. Canada (Attorney General), 2018 FC 286.
[41] Canada submits that Ms. Chapman did receive a significant degree of procedural fairness. They submit that despite the process not being the same as a court process:
[T]he investigator spoke to 12 individuals before interviewing Ms. Chapman. The investigator allowed Ms. Chapman to submit documents, have an oral interview, submit follow-up documentation, and comment on the interview summary. The investigator afforded Ms. Chapman many of the same procedural protections given in a court process.
[42] I do not agree that many of the itemized processes “afforded Ms. Chapman many of the same procedural protections given in a court process”. Specifically, Ms. Chapman was not afforded the following protections: (1) the right to know the evidence against her prior to being examined, (2) the opportunity to provide a full response to that evidence, (3) the right to know beforehand exactly what wrongdoing she is alleged to have committed, (4) the right to call additional witnesses to support her position, or counter evidence already offered, and (5) the right to know the evidence against her before a decision regarding wrongdoing is reached on the basis of that evidence. Although Ms. Chapman had opportunities to speak with the investigator, provide comments, and submit evidence, the value of those processes was severely attenuated by not knowing what was said against her. In my assessment, none of the processes Canada points to offered Ms. Chapman these procedural protections.
[43] I fundamentally disagree with Canada’s submission that the “employer apprised that the discloser alleged that Ms. Chapman grossly mismanaged AB, and that’s all that could be shared”. I do not understand, and Canada has not explained, why it would not have been possible to provide any information regarding the allegations against Ms. Chapman while still protecting the identity of the discloser and other witnesses. First, there is no reason why the identity of the employee she is alleged to have grossly mismanaged, who was deceased, was not identified by the employer prior to her being interviewed by the investigator. Second, not only could his identity have been shared, I am unable to see any basis for failing to disclose the evidence of the witnesses who had been interviewed prior to her being interviewed, and most certainly there was no basis to conceal that information prior to the ADM(RS) reaching a decision on the complaint.
[44] Having been denied procedural fairness in the investigation process, this was compounded when Ms. Chapman was denied access to the Report by the ADM(RS). She was given no chance to be heard by him as to the “evidence” he was relying on in making his decision, and she most certainly did not know the case against her, having been denied access to the Report.
[45] I agree with Canada that the choice made by the decision maker to have a third party investigate deserves respect, and had Ms. Chapman been given procedural fairness by the investigator in that process, I may have agreed that it was not unreasonable for the ADM(RS) to reach the decision he did without asking Ms. Chapman for her position. However, she was not given procedural fairness in the investigation process. She was not clearly apprised on the alleged wrongdoing, and she was not informed what evidence had been gathered by the investigator. In short, she was not given a meaningful right to be heard or given the opportunity to know the case against her at any stage of this process.
Conclusion
[46] Canada submits that notwithstanding any breach of procedural fairness, the decision reached was reasonable based on the record. As I understand its position, akin to Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, a breach of procedural fairness can be disregarded if correcting the breach would not have any effect on the outcome of the case.
[47] I am unable to accept that submission on the facts before the Court. Ms. Chapman submits that if she had been provided with the Report and given an opportunity to respond to the investigator’s findings, she would have provided additional evidence to counter some of the statements made by witnesses, she would have asked that other witnesses with additional or contradictory information be interviewed, and she would have corrected some of the factual errors made by the investigator. Additionally, while the investigator noted both that “credibility is a factor in determining if breach of conduct has occurred” and that “direct, firsthand knowledge” is to be preferred and given greater weight than hearsay evidence, I note that much of the evidence in the report appears to be hearsay. If Ms. Chapman had seen the Report, she could have both offered explanations to bolster her own credibility, and pointed out the weaknesses in the evidence that the investigator relied upon. In those circumstances, the Court cannot conclude that the same result would have been reached by the decision maker.
[48] Ms. Chapman has asked that the decision be set aside, and that the “matter be referred back to a different decision-maker with the direction that it be dealt with in accordance with this court’s reasons”.
[49] In my view, it is appropriate that someone other than the ADM(RS) be tasked with reaching a decision on whether Ms. Chapman has engaged in wrongdoing under the PSPDA. It is the usual when remitting a matter back to be redetermined, that it is referred to a different decision maker. In this manner of proceeding, if the same result is arrived at, there is less likelihood that the subject of the decision will question whether the decision was made with a fresh, open, and independent mind.
[50] The new decision should be made only after Ms. Chapman is given a full opportunity to respond to the Report, and any subsequent report generated in response to the shortcomings identified by the Court. In short, the decision as to the alleged wrongdoing is to be made only after Ms. Chapman has been afforded the full opportunity to respond to all of the evidence the decision maker is relying upon. The Report, as it currently stands, is unfair and cannot be the basis of any fair and reasonable new decision. Either the process must be started afresh, or the Report, as it presently stands, revised to address the factual errors identified by Ms. Chapman, and to incorporate new evidence provided by her and any relevant new witness she identifies.
[51] Ms. Chapman is entitled to her costs. The parties have agreed that the costs of the applicant, if successful, are $6 000, and I so order.
JUDGMENT in T-1753-18
THIS COURT’S JUDGMENT is that:
1. This application is allowed;
2. The decision of the Assistant Deputy Minister (Review Services) under review is set aside;
3. The allegation of wrongdoing by Ms. Chapman under the Public Servants Disclosure Protection Act, is to be decided by a different decision maker, in accordance with these reasons; and
4. Ms. Chapman is awarded costs of $6 000.