Administrative law – Decisions of administrative tribunals – Public Service Integrity Officer – Investigations – Jurisdiction – Public interest – Judicial review – Disclosure – Standard of review – Correctness – Reasonableness simpliciter
Chopra v. Canada (Attorney General),  F.C.J. No. 712, Federal Court, April 29, 2005, O’Keefe J.
The four Applicants were employees of the Veterinary Drugs Directorate (“VDD”) of Health Canada. The PSIO is a federal investigative body created pursuant to a Treasury Board of Canada Policy adopted in accordance with the Financial Administration Act, R.S.C. 1985, c. F-11. The policy objective behind the PSIO is to allow federal public service employees to disclose information concerning allegations of wrongdoing, and to ensure that they are treated fairly and that they are protected from reprisal when they do so in a manner consistent with the policy.
In April 2002, one of the Applicants voiced concerns about the approval of new drug submissions for certain veterinary drugs without the required submission of human safety data. The four Applicants later made a joint submission to the PSIO in which they complained that they were being pressured by their supervisors to pass or maintain a series of veterinary drugs without the required proof of human safety and that each of them had been reprimanded with a clear message to convey that they must either toe the management line to favour the pharmaceutical lobby or face departmental punishment.
The PSIO met with the Director General of the VDD as well as the Applicants. The PSIO later informed the Applicants that the Office would not be reviewing issues and concerns for which there existed an alternative recourse such as the grievance procedure. After conducting an investigation, the PSIO found that the allegations submitted by the Applicants were unfounded, although they did find an instance of reprisal against one of the Applicants.
In this application for judicial review, the Court began by considering the applicable standard of review. The Court applied the pragmatic and functional analysis. First, there was no privative clause or right of appeal, so this was a neutral factor. Second, the PSIO had no expertise as compared to the Court in its review of the Act and Regulations and the extent of the Minister’s discretion so no deference was due in this respect. However, the PSIO engages in both discretionary complaints screening and a fact-intensive investigation, which resulted in a higher level of deference. Third, the purpose of the policy was to provide a mechanism to look into allegations of wrongdoing in the Public Service which, while fact-driven, also potentially involved issues and questions of wider public interest. Accordingly, some deference was due to the PSIO. Fourth and finally, the nature of the problem was both public and private and, accordingly, some deference was owed to the PSIO. Balancing the factors, the appropriate standard of review was reasonableness simpliciter. The exception to this was on the question of procedural fairness, of which the correctness standard always applies.
The Court considered whether the PSIO had conducted this investigation in accordance with its mandate. The Court held that the PSIO must undertake a complete investigation of the issues raised by the Applicants. On the evidence before it, the Court concluded that the PSIO’s report was to deal with more than just the five particular drug submissions that prompted the complaint. While the PSIO can decide whether a matter fits within the parameters of his jurisdiction, once he decides that it does, he must carry out an investigation of the issues.
The issue of the other drugs was clearly before the PSIO and needed to be dealt with. The Court had no way of knowing what conclusions would have been reached by the PSIO had those other issues been considered. Moreover, a consideration of those other drugs and issues raised by the Applicants could have had an affect on the Applicant’s second allegation, regarding the pressure to approve veterinary drugs of questionable safety.
The Court concluded that the PSIO’s failure to address the concerns of the Applicants caused the PSIO to err in law. The PSIO failed to conduct the investigation in accordance with its mandate and that it failed to investigate and analyze those issues.
In the result, the Applicants’ application for judicial review was allowed. The report of the PSIO was set aside and the matter was referred back to the PSIO for reconsideration.
To stay current with the new case law and emerging legal issues in this area, subscribe here.