Public Sector Integrity Commissioner of Canada’s decision to refuse investigation into Canadian embassy involvement in foreign mining operations and criminal activity reasonable

Administrative law – Decisions reviewed – Public Sector Integrity Commissioner – Investigations – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Reasonableness

Gordillo v. Canada (Attorney General), [2022] F.C.J. No. 137, 2022 FCA 23, Federal Court of Appeal, February 9, 2022, W.W. Webb, J.B. Laskin and M. Rivoalen JJ.A.

The appellants were supporters of a community leader who was murdered in Mexico in 2009.

The appellants submitted a request to the Public Sector Integrity Commissioner of Canada to investigate the murder. The basis for the request was the relationship between Canadian Embassy officials in Mexico and a Canadian mine operator in the country. The community leader was a prominent advocate against those mining operations. The RCMP had investigated the Canadian mine operator for contravention of the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. The Commissioner declined to commence an investigation under the Public Servants Disclosure Protection Act, S.C. 2005, c. 46.

On appeal from a judicial review application upholding the Commissioner’s decision, the Federal Court of Appeal held there was no basis to interfere with the decision to not investigate. The Court found the Commissioner’s decision was reasonable. The Commissioner understood the basis put forward for the investigation and applied the appropriate standard for whether to commence an investigation. The Commissioner determined that he must have reason to believe that wrongdoing under the applicable legislation has been committed. The Commissioner did not require, as the appellants argued, that they prove wrongdoing on the merits before he would commence an investigation. The Commissioner properly based his decision on the information and documents provided in support of the request for an investigation.

The appeal was dismissed.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.