Agnaou v. Canada (Attorney General)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Nadon, Gauthier and Scott, JJ.A.
• Citation: (2015), 478 N.R. 118 (FCA),2015 FCA 29
• Court: Court of Appeal (Canada)
• Date: 02 February 2015

Agnaou v. Can. (A.G.) (2015), 478 N.R. 118 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. FE.020

Yacine Agnaou (appelant) v. Procureur général du Canada (intimé)

(A-110-14; 2015 FCA 29; 2015 CAF 29)

Indexed As: Agnaou v. Canada (Attorney General)

Federal Court of Appeal

Nadon, Gauthier and Scott, JJ.A.

February 2, 2015.

Summary:

Agnaou, a former federal Crown prosecutor, had a priority entitlement to an LA-2B position. In his reprisal complaint, he alleged that senior officials at the Public Prosecution Service refused to appoint him to an LA-2B position because he had made a protected disclosure within the meaning of the Public Servants Disclosure Protection Act. The Deputy Public Sector Integrity Commissioner (DPSIC) declared the reprisal complaint inadmissible because it was beyond his jurisdiction. According to the DPSIC, there was no connection between the protected disclosure and the reprisal measure allegedly taken (s. 19.3(1)(c)). Agnaou applied for judicial review.

The Federal Court, in a decision reported at [2014] F.T.R. Uned. 38, dismissed the application, concluding that the decision to refuse to deal with the complaint was reasonable, given that there was no wrongdoing or disclosure. Agnaou appealed.

The Federal Court of Appeal allowed the appeal and, in this "exceptional case", declared the reprisal complaint to be admissible. Agnaou had not established a breach of procedural fairness. However, it was not plain and obvious that Agnaou did not make an internal disclosure within the meaning of s. 12 of the Act. The Court referred the matter to a different Commissioner to be dealt with appropriately, as prescribed by the Act.

Administrative Law - Topic 2266

Natural justice - Duty of fairness - Procedural fairness - What constitutes - [See all Labour Law - Topic 9095 ].

Administrative Law - Topic 8347

Administrative powers - Review of discretionary powers - Requirement that discretion be exercised reasonably - [See first Labour Law - Topic 9096 ].

Labour Law - Topic 9095

Public service labour relations - Public service integrity - Duties of Commissioner - The appellant, a former federal Crown prosecutor, had filed a disclosure with the Office of the Public Sector Integrity Commissioner, in which he alleged that his superiors had committed wrongdoing - An analyst recommended not dealing with the disclosure - The Deputy Public Sector Integrity Commissioner (DPSIC) upheld the recommendation - The Federal Court of Appeal held that the DPSIC did not have to let the appellant comment on the analyst's report that was given to him, before making a decision - "[T]he analyst's report does not refer to any evidence or commentary from external sources or third parties. Neither the [Public Servants Disclosure Protection] Act nor the Office's established process offers a complainant such an opportunity at this stage. Moreover, in this appeal, the first analyst clearly notified the appellant ... that he would have to wait for the DPSIC to make a decision before he could comment on the analyst's admissibility report ... . The appellant was aware of the essential conditions that needed to be met ... . Having considered the content of the DPSIC's duty of procedural fairness ... , and even taking into account that the decision to reject a reprisal complaint can have a greater impact on the appellant's career than a decision under section 24 of the Act ... , I am satisfied that there was no breach with regard to the appellant's rights to participate." - See paragraphs 36 to 40.

Labour Law - Topic 9095

Public service labour relations - Public service integrity - Duties of Commissioner - The Deputy Public Sector Integrity Commissioner (DPSIC) declared the appellant's reprisal complaint inadmissible because it was beyond his jurisdiction - The Federal Court dismissed the application for judicial review - On appeal, the appellant submitted that the decision of the DPSIC did not provide sufficient reasons since it did not address several important facts - The Federal Court of Appeal held that the application judge correctly concluded that the appellant had not established a breach of procedural fairness - The DPSIC fulfilled his obligations under s. 19.4(3) of the Public Servants Disclosure Protection Act to give reasons for his decision - The reasons were sufficient to allow the application judge or the Court to exercise its review jurisdiction - When applying the reasonableness standard of review, the quality of the decision-maker's reasons was not a separate ground of review from the analysis to determine whether the decision was valid - See paragraphs 41 to 43.

Labour Law - Topic 9095

Public service labour relations - Public service integrity - Duties of Commissioner - The Deputy Public Sector Integrity Commissioner (DPSIC) declared the appellant's reprisal complaint inadmissible because it was beyond his jurisdiction - The Federal Court dismissed the application for judicial review - On appeal, the appellant argued that the DPSIC breached procedural fairness in approving the decision not to conduct an investigation without personally reviewing all the key facts - The Federal Court of Appeal agreed with the application judge that the DPSIC followed the usual procedure, which involved a multi-disciplinary approach and various levels of review - "It is entirely normal and appropriate for administrative decision-makers to use the services of their staff, including when preparing their reasons ... .What is important here is that the final decision be made by the DPSIC. There is nothing in the evidence submitted by the appellant that in my view casts doubt on the fact that it was indeed the DPSIC who ultimately made the decision to reject the complaint ... . This conclusion also allows me to summarily dispose of the argument that there was an unlawful subdelegation of authority to legal counsel or an analyst ... . The DPSIC stated that when he made his decision, he had before him not only the analyst's report, reviewed by Legal Services, but also the entire file ... . In any event, when analyzing the reasonableness of a decision, the Court takes into account what was in the record. Therefore, if the DPSIC's decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, it will be set aside on this ground." - See paragraphs 44 to 49.

Labour Law - Topic 9096

Public service labour relations - Public service integrity - Judicial review (incl. standard of review) - The Deputy Public Sector Integrity Commissioner (DPSIC) declared the appellant's reprisal complaint inadmissible because it was beyond his jurisdiction - According to the DPSIC, there was no connection between the protected disclosure and the reprisal measure allegedly taken - The Federal Court dismissed the judicial review application - On appeal, the appellant submitted that the application judge and the DPSIC erred in applying s. 19.3(1)(c), because they misinterpreted s. 12 of the Public Servants Disclosure Protection Act which defined what constituted a protected disclosure - The appellant submitted that the respective interpretations of ss. 12 and 19.3 were questions of law subject to the correctness standard of review - The Federal Court of Appeal disagreed - A decision to refuse to deal with a complaint under s. 19.3(1)(c) was a question of mixed fact and law to which the reasonableness standard applied - See paragraphs 31 to 35.

Labour Law - Topic 9096

Public service labour relations - Public service integrity - Judicial review (incl. standard of review) - Agnaou/the appellant applied for judicial review of a decision of the Deputy Public Sector Integrity Commissioner (DPSIC) declaring his reprisal complaint inadmissible because it was beyond his jurisdiction - According to the DPSIC, Agnaou had not established that his employer was aware of a protected disclosure before it took the action at issue (Public Servants Disclosure Protection Act, s. 19.3(1)(c)) - The Federal Court dismissed the judicial review application - On appeal, Agnaou submitted that the application judge and the DPSIC erred in applying s. 19.3(1)(c), because they misinterpreted s. 12 of the Act which defined what constituted a protected disclosure - The Federal Court of Appeal, applying the modern rules of statutory interpretation, concluded that "Parliament chose to adopt a different approach to reprisal complaints and that, as is the case under section 41 of the CHRA [Canada Human Rights Act ], only plain and obvious cases must be rejected summarily because they cannot be dealt with." - The Court examined the process for handling disclosures and then turned to the reprisal complaint process to show why that conclusion was inevitable - See paragraphs 53 to 67.

Labour Law - Topic 9096

Public service labour relations - Public service integrity - Judicial review (incl. standard of review) - Agnaou (the appellant), a former federal Crown prosecutor, applied for judicial review of a decision of the Deputy Public Sector Integrity Commissioner (DPSIC) declaring his reprisal complaint inadmissible because it was beyond his jurisdiction - According to the DPSIC, Agnaou had not established that his employer was aware of a protected disclosure (Public Servants Disclosure Protection Act, ss. 12 and 19.3(1)(c)) - The recommendation accepted by the DPSIC was based on a reading of Agnaou's emails in which he alleged that his superiors had committed wrongdoing - The Federal Court dismissed the judicial review application - The Federal Court of Appeal allowed the appeal - It was not plain and obvious that the appellant did not make an internal disclosure within the meaning of s. 12 - As to remedy, the Court declared the reprisal complaint to be admissible - This was an exceptional case, as the other grounds set out in s. 19.1(1) did not apply, and nearly two years had elapsed since the complaint was accepted for filing - The Court referred the matter to a new Commissioner - That approach was the only one that would afford the expeditious treatment intended by Parliament - See paragraphs 69 to 93.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Labour Law - Topic 9096 ].

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 26].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 30].

Detorakis v. Canada (Attorney General) (2010), 358 F.T.R. 266; 2010 FC 39, refd to. [para. 32].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 33].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 33].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 33].

Canadian National Railway Co. v. Canada (Attorney General) et al., [2014] 2 S.C.R. 135; 458 N.R. 150; 371 D.L.R.(4th) 219; 2014 SCC 40, refd to. [para. 33].

Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 2012 FCA 117, refd to. [para. 34].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 39].

El-Helou v. Courts Administration Service et al. (2012), 418 F.T.R. 216; 2012 FC 1111, refd to. [para. 40].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 42].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 44].

John Witness v. Commissioner of the Royal Canadian Mounted Police, [1998] 2 F.C. 252; 138 F.T.R. 176 (T.D.), refd to. [para. 46].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), refd to. [para. 55].

D'Errico v. Canada (Attorney General) (2014), 459 N.R. 167; 2014 FCA 95, refd to. [para. 92].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41 [para. 56].

Public Servants Disclosure Protection Act, S.C. 2005, c. 46, sect. 2(1) [para. 25]; sect. 8 [Annex A]; sect. 12 [para. 25]; sect. 19, sect. 19.1, sect. 19.3, sect. 19.4, sect. 24, sect. 26, sect. 27, sect. 36, sect. 37 , sect. 39.3, sect. 42.1 [Annex A].

Counsel:

Yacine Agnaou, appellant, self-represented;

Kétia Calix, for the respondent, Attorney General of Canada.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This appeal was heard at Montréal, Quebec, on October 9 and 22, 2014, before Nadon, Gauthier and Scott, JJ.A., of the Federal Court of Appeal. In reasons written by Gauthier, J.A., the Court delivered the following judgment, dated February 2, 2015, at Ottawa, Ontario.