Judgments

[2001] 2 F.C. 82

T-199-99

Margaret Haydon (Applicant)

v.

Her Majesty the Queen et al. (Respondents)

and

Canadian Health Coalition, Council of Canadians, National Farmers Union, Sierra Club of Canada (Interveners)

T-200-99

Shiv Chopra (Applicant)

v.

Her Majesty the Queen et al. (Respondents)

Indexed as: Haydon v. Canada (T.D.)

Trial Division, Tremblay-Lamer J.—Ottawa, June 20 and September 5, 2000.

Public Service — Duty of loyalty — Applicants reprimanded for breaching duty of loyalty owed to employer following public comments made on national television regarding drug review process within Health Canada — ADM rejecting applicants’ grievances against letters of reprimand sent by supervisors — Applicants granting TV interview following repeated unsuccessful efforts to have concerns as to drug approval process generally, that related to growth hormones, antibiotics addressed internally — Duty of loyalty not demanding absolute silence from public servants — Not preventing public disclosure where public safety, health at risk.

Food and Drugs — Applicants scientists responsible for evaluating new veterinary drug submissions to ensure compliance with human safety requirements of Food and Drugs Act, Regulations — Concerned about Health Canada’s drug approval process impact on human health, food industry in Canada — Repeated, unsuccessful efforts to have concerns addressed internally — Reprimanded for going public by granting TV network interview — Grievance denied by ADM — Decision preventing applicants from going to media in cases of legitimate safety, health concerns unreasonable.

Constitutional law — Charter of Rights — Fundamental Freedoms — Freedom of expression — Applicants, drug evaluators at Health Canada, issued letters of reprimand by supervisors for going public by granting TV network interviews after failing in attempts to have matter addressed internally — Applicants having legitimate public concern as to efficacy of drug approval process within Bureau of Veterinary Drugs — Where matter of legitimate public concern requiring public debate, duty of loyalty not absolute — Letters of reprimand, instruction limit to freedom of expression under Charter, s. 2(b).

Constitutional law — Charter of Rights — Limitation clause — Applicants grieving letters of reprimand, instruction for alleged breach of duty of loyalty owed to employer — Whether duty of loyalty reasonable limit within meaning of Charter, s. 1 — Balance to be struck between duty of loyalty, freedom of expression — Duty of loyalty common law rule, reasonable limit “prescribed by law” for purposes of s. 1 analysis — Objective of duty of loyalty owed by public servants to promote impartial, effective public service — Common law duty of loyalty rationally connected to objective — Impairing freedom of expression as little as reasonably possible as absolute silence not demanded, exceptions recognized — Reasonable limit within Charter, s. 1.

Administrative law — Judicial review — Certiorari — Associate Deputy Minister of Health Canada rejecting applicants’ grievances against letters of reprimand sent by supervisors — Applicable standard of review correctness — Whether ADM correctly identified, applied principles in Fraser case (which established bounds of permissible public criticism of government policies by public servants) — ADM disregarded context leading to comments made on national television, failed to conduct fair, complete assessment of competing interests — Erred in application of Fraser test — Applicants’ public criticisms falling within first qualification of Fraser test, namely disclosure of policies that jeopardize life, health, safety of public — ADM failing to make fair, complete assessment of applicants’ right to speak on important public issue.

This was an application for judicial review of a decision by the Associate Deputy Minister (ADM) of Health Canada rejecting the applicants’ grievances against letters of reprimand sent by their supervisors. The applicants are drug evaluators responsible for conducting objective, scientific evaluations of new veterinary drug submissions to ensure compliance with the human safety requirements of the Food and Drugs Act and Regulations. They became concerned with the drug approval process generally and, in particular, with that related to growth hormones and antibiotics. After repeated efforts to have their concerns addressed internally, including a request for an external investigation and the intervention of the Prime Minister and the Health Minister, they finally decided to complain publicly. During an interview on Canada AM, a national television program on the CTV network, they expressed serious concerns regarding the drug review process and the impact these problems could have on the health of Canadians. Applicant Chopra was issued a written reprimand for having given the interview, thus breaching his duty of loyalty to his employer. Applicant Haydon was issued a letter of instruction requesting her to adhere to the departmental policy and procedures regarding contact with the media. Applicants’ grievances were denied by the Associate Deputy Minister who ruled that, even though public servants do enjoy freedom of expression, they do not have a licence to publicly and unreasonably criticize the manner in which government departments discharge their responsibilities. Two issues were raised on judicial review: (1) whether the duty of loyalty is a reasonable and justifiable limit on an employee’s freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms, and (2) if so, whether the Associate Deputy Minister erred in law in holding that applicants’ freedom of expression was reasonably restricted by the imposition of the letters of reprimand/instruction.

Held, the application should be allowed.

(1) It was conceded that the government’s conduct in imposing a reprimand/instruction upon the applicants constituted a limit to their freedom of expression within the meaning of paragraph 2(b) of the Charter. The issue was whether the duty of loyalty is a reasonable limit under section 1 of the Charter. The Supreme Court of Canada decision in Fraser v. Public Service Staff Relations Board is the leading case concerning the duty of loyalty owed by public servants, as it established the bounds of permissible public criticism of government policies by public servants. The duty of loyalty is a well-known and long-accepted legal principle which provides an intelligible standard by which to measure an employee’s conduct. It is a reasonable limit to the freedom of expression provided not by a law but by a common law rule. A balance has to be struck between the duty of loyalty and freedom of expression. The common law duty of loyalty is sufficiently precise to constitute a limit “prescribed by law” for the purposes of a section 1 analysis. The limitation placed on the applicants’ freedom of expression was not based on vague and undetermined criteria. A restriction or limitation to a Charter right or freedom must have its source in law. The objective of the duty of loyalty owed by public servants is to promote an impartial and effective public service which is essential to the functioning of a democratic society; it is therefore a pressing and substantial objective. There is also a rational connection between the common law duty of loyalty and its objective. As to minimal impairment, the duty of loyalty does not demand absolute silence from public servants; it encompasses exceptions or qualifications where, for example, the Government is engaged in illegal acts or where its policies jeopardize the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his ability to perform effectively his duties. These exceptions embrace matters of public concern and ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service. The common law duty of loyalty has been tailored to accomplish its specific objective while allowing for exceptions. Finally, there is a proportionality between the effect of the mesure and its objective. The common law duty of loyalty has only modest and tailored effects on a public servant’s freedom of expression. The possibility of engaging in a balancing of competing interests ensures that proportionality is secured. In cases that fall within the Fraser qualifications, the public interest outweighs the objective of an impartial and effective public service. The common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit under section 1 of the Charter.

(2) The second issue was whether the ADM erred in holding that, considering the applicants’ duty of loyalty as public servants, their freedom of expression was reasonably restricted by the imposition of the reprimand/instruction. Since the ADM is not legally trained and his expertise is limited to management issues, little deference should be accorded to his decision. Accordingly, the applicable standard of review is that of correctness. In denying the applicants’ grievances, the ADM acknowledged that an appropriate balance must be sought between the freedom of expression and a public servant’s duty of loyalty. The onus rested on him to verify whether the circumstances of the case fell within one of the Fraser exceptions. In order to determine whether the applicants have breached their duty of loyalty, he had to weigh their interests against those of the government, hence applying the Fraser test. The ADM disregarded the context that led to the comments made publicly on national television and failed to proceed with a fair and complete assessment of the competing interests. Accordingly, he committed an error in the application of the Fraser test. The applicants’ public criticisms fell within the first qualification of the Fraser test, namely disclosure of policies that jeopardize life, health or safety of the public. The ADM erred in qualifying the applicants’ conduct as inappropriate public criticism of management. When placed in the context of previous incidents, the applicants’ conduct constituted an exception to the common law duty of loyalty as identified in Fraser. Their statements disclosed a legitimate public concern with respect to the efficacy of the drug approval process within the Bureau of Veterinary Drugs. The ADM failed to proceed with a fair and complete assessment of the applicants’ right, as members of the public, to speak out on an important public issue. By focussing primarily on the applicants’ duty of loyalty to the employer, the ADM failed to examine their right to freedom of expression on an issue of public interest where attempts to obtain internal redress had been unsuccessful. Public criticism will be justified where a reasonable attempt to resolve the matter internally has been unsuccessful. In publicly criticizing the drug approval process, the applicants had no personal interest at stake. Their public statements were an effort to correct the problems related to the drug review process. Finally, the ADM erred in finding that the directive contained in the reprimand letter to “refrain from further unauthorized speaking to the media” did not amount to an absolute prohibition on the applicants’ freedom of expression. Preventing the applicants from going to the media in cases of legitimate safety or health concerns regarding policies within Health Canada was unreasonable. The scientists were justified in going to the media and they should not have been reprimanded for doing so.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).

Food and Drug Regulations, C.R.C., c. 870.

Food and Drugs Act, R.S.C., 1985, c, F-27.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 23, 33, Sch. III.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 23 (as am. by S.C. 1992, c. 54, s. 40), 91.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; (1985), 23 D.L.R. (4th) 122; 18 Admin. L.R. 72; 9 C.C.E.L. 233; 86 CLLC 14,003; 19 C.R.R. 152.

APPLIED:

R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241.

CONSIDERED:

Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; (1991), 82 D.L.R. (4th) 321; 37 C.C.E.L. 135; 91 CLLC 14,026; 4 C.R.R. (2d) 30; 125 N.R. 241; Pickering v. Board of Education, School District 205, 391 U.S. 563 (1968); Ministry of Attorney-General, Corrections Branch and British Columbia Government Employees’ Union, Re (1981), 3 L.A.C. (3d) 140 (B.C.).

REFERRED TO:

The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85 (1985), 17 D.L.R. (4th) 503; 9 C.E.R. 229; 45 C.R. (3d) 81; 15 C.R.R. 167; [1985] 1 C.T.C. 246; 57 N.R. 386 (C.A.); Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; (1996), 133 D.L.R. (4th) 1; 37 Admin. L.R. (2d) 131; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; (1995), 126 D.L.R. (4th) 129; 25 C.C.L.T. (2d) 89; 30 C.R.R. (2d) 189; 84 O.A.C. 1; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; (1986), 33 D.L.R. (4th) 174; [1987] 1 W.W.R. 577; 9 B.C.L.R. (2d) 273; 38 C.C.L.T. 184; 87 CLLC 14,002; 25 C.R.R. 321; [1987] D.L.Q. 69.

AUTHORS CITED

Ontario. Law Reform Commission. Report on Political Activity, Public Comment and Disclosure by Crown Employees. Toronto: Ministry of the Attorney General, 1986.

Vickers, Lucy. “Whistleblowing in the Public Sector and the ECHR”, [1997] Public Law 594.

APPLICATION for judicial review of a decision by the Associate Deputy Minister of Health Canada rejecting the applicants’ grievances against letters of reprimand/instruction following an alleged breach of the duty of loyalty owed to their employer. Application allowed.

APPEARANCES:

Andrew J. Raven and David Yazbeck for applicants.

David T. Sgayias, Q.C., and J. Sanderson Graham for respondents.

Randy L. Christensen for interveners.

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne, Ottawa, for applicants.

Deputy Attorney General of Canada for respondents.

Sierra Legal Defence Fund, Ottawa, for interveners.

The following are the reasons for order rendered in English by

[1]        Tremblay-Lamer J.: This is an application for judicial review of the decision by the Associate Deputy Minister of Health Canada rejecting the applicants’[1] grievances against letters of reprimand[2] received from their supervisors.

THE FACTS

[2]        The applicants were reprimanded for breaching the duty of loyalty they owe to their employer following certain public comments they made during an appearance on a national television program regarding the drug review process within Health Canada.

[3]        Applicant Chopra is employed at Health Canada as a senior drug evaluator in the Human Safety Division of the Bureau of Veterinary Drugs (the Bureau or BVD), Food Directorate, Health Protection Branch. Applicant Haydon, is also employed at Health Canada as a drug evaluator with the Pharmaceutical Assessment Division of the Bureau of Veterinary Drugs, Food Directorate, Health Protection Branch.

[4]        The mandate of the Department and the Health Protection Branch is the protection of the health and safety of Canadians in accordance with the provisions of the Food and Drugs Act [R.S.C., 1985, c. F-27]. Veterinary drugs are substances which are used to prevent and treat diseases in animals, promote growth, control reproduction, or provide humane means of restraint and relief of pain in animals.

[5]        As drug evaluators, the applicants are responsible for conducting objective, scientific evaluations of new veterinary drug submissions[3] to assess drug toxicity, drug metabolism and drug residue depletion date to ensure that new drugs comply with the human safety requirements of the Food and Drugs Act and Regulations [Food and Drug Regulations, C.R.C., c. 870].

[6]        Having reviewed all the existing data, the applicants as drug evaluators, make written recommendations to the Chief of the Division regarding the acceptance or rejection of the submission. Drug evaluators do not approve or reject new drug submissions. This is the statutory responsibility of the Minister of Health and his delegate, the Director General of the Food Directorate.

[7]        According to the respondents, in carrying out their duties, drug evaluators are expected to collaborate with their colleagues throughout the Department, to communicate with drug manufacturers regarding problems or additional requirements, and to consult with academics and review international scientific literature as required. As employees in a regulatory agency, drug evaluators are further expected to conduct themselves without compromising, or being seen to compromise, their ability to assess drugs and discharge their duties in a fair, objective and impartial manner.

[8]        While exercising their duties as drug evaluators, the applicants became seriously concerned with the drug approval process generally, and with the particular approval process regarding growth hormones for meat and milk stimulation and antibiotics. One particular drug which caused concern for the applicants, was recombinant bovin growth hormone (rBST).

[9]        At the time of the reprimand, rBST had been under review by the BVD for in excess of nine years. In the letter reprimanding applicant Chopra and directing applicant Haydon to refrain from speaking to the media, the applicants claim that the Department acknowledged expressly that there was a “controversy” surrounding rBST. In fact, as a result of this controversy, the Department had sought external advice regarding the implications of its use on human health and safety. Moreover, the applicants allege that the documents from their files regarding rBST were surreptitiously stolen.

[10]      The applicants indicate that rBST has been the subject of reports prepared by the Royal College of Physicians and Surgeons of Canada, the Canadian Veterinary Medical Association, the European Unions Scientific Committee on Animal Health and Animal Welfare, and the European Union Scientific Committee on Veterinary Measures Relating to Public Health. The Senate of Canada has also conducted extensive hearings through the Standing Senate Committee on Agriculture and Forestry. It should be noted that ultimately Health Canada rejected the application to approve rBST.

[11]      During this period, the applicants maintain that it was acknowledged by the Department and widely reported in the media that the BVD was suffering from serious internal problems, including low staff morale, long and costly delays facing companies who had filed applications to market drugs, and a lack of policy direction from top to bottom at Health Canada. The applicants add that these concerns were so serious that the Department hired outside consultants to examine the Bureau and provide advice regarding how to address these problems.

[12]      The applicants assert that they made several repeated efforts to have their concerns addressed internally. These included requesting an external investigation, raising their concerns with the Prime Minister and the Health Minister, initiating several formal grievances within the Department, and initiating proceedings under the Public Service Staff Relations Act[4] before the Public Service Staff Relations Board. According to the applicants, none of these avenues has addressed their concerns.

The Canada AM Interview[5]

[13]      On June 11, 1998, the applicants were interviewed on Canada AM, a national television program broadcast in the mornings on the CTV network.

[14]      At the beginning of the interview, the CTV reporter provided the following background comments:

DAWNA FRIESEN (CTV): A recent internal report commissioned by Health Canada suggests that it’s Bureau of Veterinary Drugs is in chaos at the department. It’s the department that approves drugs given to the animals we eat, drugs like growth hormones for cattle. The report suggests there is a lack of leadership, there are no clear-cut rules for the approval of drugs, and there are concerns about health risks for people who eat meat and drink milk.[6]

[15]      According to the applicants, during the interview, they expressed serious concerns regarding the drug review process and the impact these problems could have on the health of Canadians. Applicant Chopra pointed to the fact that scientists within Health Canada have been asked to approve some drugs despite a recommendation not to approve them. He explained the difficulties in seeking other redress and expressed the view that the Department was denying that any problem existed:

Well, that’s the general complaint that we’ve had for a long time. It’s been going on well over almost two years, and prior to that. And we’ve had formal grievances, and the department is sleepwalking through this whole problem, denying there’s any such thing, and they’re saying this is only some kind of interpersonal problems.

Originally we had asked for external investigation, and then we go to the Prime Minister, we go to the Minister and nobody is willing to do anything about it. And then eventually, now the matter is before the labour board of the federal public service, and that hearing will take place in September.

Meanwhile, the department is doing all sorts of tricks to pretend something has happened, it’s only a few people disagreeing with each other. Now that’s the way things are running in the department and that’s how this latest report was produced by KPMG. And we don’t agree with any of that.[7]

[16]      Applicant Chopra went on to explain that the two kinds of drugs they were most concerned about were growth hormones and antibiotics, given the impact on human health and the food industry in Canada. Applicant Chopra expressed the view that the Department was not listening to their concerns:

And our department is not listening to us. Department people, managers at the top do not have any science, or if they do, any science that’s not relevant to the issue, and then because they’re managers they bring pressures on us and they’re doing all kind of tricks to subvert our scientific knowledge and contribution.[8]

[17]      Applicant Chopra emphasized that the Department was doing everything it could to avoid the issue completely and went on to describe the serious problems which could ensue in terms of hormonal effects on humans.

[18]      Applicant Haydon expressed her view that science was being ignored within the Bureau of Veterinary Drugs and that administrative decisions had been made so that certain drugs could be approved. She maintained that, in these circumstances, her authority as a scientist was being completely undermined.

[19]      The respondents contend that the comments made during the interview were in fact criticisms of the Bureau and the Department’s management. More particularly, the respondents cite the following comments made by applicant Chopra during the interview:

— drug evaluators are “being pressured to approve drugs of questionable safety and the department is not willing to look into that matter”;

— drug companies are disputing the scientific credentials of the evaluators and urging the Department to disband the evaluation function and send it out “to some other places where they can have more influence”;

— drug companies are sitting on the management board of the Department; and

— drug evaluators cannot determine the effects of hormone residues and that drug companies do not want them to do so.[9]

[20]      In addition, the respondents indicate that the applicants did not provide specific examples or detail, and did not refer to any evidence to support their allegations. Nor did the applicants disabuse the interviewer of the assumption that they were responsible for approving drugs.

The Department’s Response

[21]      The Director of the Bureau, Dr. André Lachance, invited applicant Chopra and his union representative to attend a meeting on June 25, 1998, two weeks after the interview, to discuss the circumstances surrounding applicant Chopra’s appearance on Canada AM and the nature of the statements made. Following the meeting, Dr. Lachance issued a written reprimand by letter to applicant Chopra dated June 29, 1998.[10] Dr. Lachance found that applicant Chopra had not offered a reasonable explanation as to why he had proceeded with the Canada AM interview.

[22]      Dr. Lachance concluded that applicant Chopra had breached his duty of loyalty to his employer:

Your decision to pursue your outstanding complaints in a public forum is in my view in conflict with your obligations as a public servant. In that capacity, you have a duty of loyalty to your employer. Public denunciation of management is incompatible with a public servant’s employment relationship. By speaking to the media, you exceeded the bounds of acceptable conduct in this regard. There are many channels available to you and any other employee to raise issues of concern in a matter that ensures public accountability by responsible managers.[11]

[23]      Applicant Chopra was also informed that should further misconduct occur, more severe disciplinary action may be taken. In addition, the Department directed applicant Chopra to “refrain from any further unauthorized speaking to the media”. In reaching this decision, the Department relied upon earlier statements that applicant Chopra had made on CBC Radio in December 1997:

On December 19, 1997, Mr. J. Robert Joubert, the Director General, Human Resources Directorate advised you that it is inappropriate for a public servant to make comments in the media when you have not been designated departmental spokesperson …. Notwithstanding Mr. Joubert’s December 31, 1997 directive, on June 11, 1998, you made inappropriate and unauthorized comments on Canada AM, a program televised nationally. As a public servant fulfilling responsibilities of a drug evaluator in the Bureau of Veterinary Drugs, you have clearly failed to meet your duty of loyalty to your employer, and have disregarded management’s instructions. Therefore, I have concluded that you seriously misconducted yourself.[12]

[24]      As for applicant Haydon, she too, was invited to attend a meeting on June 16, 1998 with her union representative. At the meeting, applicant Haydon explained that she had been approached by the producers of the television program to discuss the follow-up to a workplace assessment report. She indicated that she was unaware of government policy and procedures regarding contact with the media.

[25]      Following the meeting Dr. Lachance issued applicant Haydon a letter of instruction dated 21 July 1998[13] in which he requested her to adhere to the departmental policy and procedures regarding contact with the media. Dr. Lachance advised applicant Haydon that she must contact her supervisor to verify whether or not she can speak to the media.

The Applicants’ Grievances

[26]      On July 24, 1998, pursuant to the Public Service Staff Relations Act,[14] applicant Chopra presented a grievance in respect to Dr. Lachance’s letter of reprimand.[15] Among the various complaints raised was the conclusion that he had exceeded the bounds of acceptable conduct, that he failed to meet his duty of loyalty and that he refrain from any further unauthorized speaking to the media.

[27]      In accordance to the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada, the grievance proceeded directly to the second level. A hearing was held before Dr. J. Z. Losos, the Assistant Deputy Minister of the Health Protection Branch, on November 6, 1998.

[28]      On July 31, 1998, applicant Haydon presented a grievance in respect to Dr. Lachance’s letter.[16] Applicant Haydon contended that the letter of instruction amounted to a written reprimand and a retaliation against her rights and obligations as a public servant. In addition, applicant Haydon contested the order received from Dr. Lachance to speak through her immediate supervisor about all matters concerning safety issues.

Assistant Deputy Minister’s Decision

[29]      Dr. Losos denied the applicants’ grievances. He found that their statements on Canada AM breached the duty of loyalty they owe to their employer and that the letter of reprimand/instruction was warranted:

As a public servant, you have a duty of loyalty to your employer. The argument put forward by Ms. Allen [Applicants’ counsel] failed to convince me that this duty is limited to the time a public servant is acting as a departmental spokesperson.

The statements you made were critical of the government and the department. They were in breach of your duty of loyalty and warranted a letter of reprimand [instruction].[17]

[30]      The applicants then requested that their grievances be decided at the final level. A hearing was conducted on December 11, 1998 before the Associate Deputy Minister, Alan Nymark.

Associate Deputy Minister’s Decision

[31]      The Associate Deputy Minister denied the grievance in a decision communicated to the applicants by letter dated January 11, 1998.[18]

[32]      In his decision, the Associate Deputy Minister acknowledged that public service workers enjoy freedom of expression and the ability to participate in public discussions of public issues. However, he also maintained that freedom of expression was not absolute and that public service workers do not have a licence to criticize publicly and unreasonably the manner in which departments and agencies of government exercise their responsibilities. He concluded that reasonable limits could therefore be placed upon freedom of expression, including those inherent in an employee’s duty of loyalty and in a public servant’s responsibility to carry out his or her duties in a fair and impartial manner.

[33]      The Associate Deputy Minister thus confirmed the written reprimand/instruction. He went on to clarify that applicant Chopra was not prohibited from speaking to the media, but was constrained by his duty of loyalty. And finally, he invited the applicants to raise their concerns about the drug review process with the appropriate officials within the Department.

[34]      It is this decision which is the subject of the present application for judicial review.

ISSUES

(1) Is the duty of loyalty a reasonable and justifiable limit on an employee’s freedom of expression within the meaning of section 1 of the Canadian Charter of Rights and Freedoms?[19]

(2) If so, did the Associate Deputy Minister err in law by holding that the applicants’ freedom of expression was reasonably restricted by the imposition of the reprimand/instruction, thus denying their grievance?

POSITION OF THE PARTIES

Applicants’ Submissions

[35]      At the outset, the applicants concede that imposing disciplinary sanctions upon a person for making a statement and prohibiting him from making statements in the future are violations of the freedom of expression. Given that the Associate Deputy Minister recognized expressly that the reprimand/ instruction placed limits on the applicants’ freedom of expression and indicated that this limit had to be balanced against some standard of reasonableness, counsel for the applicants maintains that it was incumbent on the Associate Deputy Minister to justify the infringement on the applicants’ freedom of expression.

[36]      Counsel for the applicants submits that the decisions denying the applicants’ grievances do not contain any reference to the constitutive elements of the section 1 of the Charter test. Thus, he is limited in the submissions advanced regarding the purported justification of violation of the applicants’ freedom of expression.

[37]      Counsel for the applicants does, however, submit that the limitation placed upon the applicants’ freedom of expression is so vague and undefined that it cannot possibly be reconciled with the strict requirements of section 1 of the Charter.[20] In particular, the reprimand/instruction, as well as the decisions rendered in the grievance procedure relied upon vague and undefined standards such as “obligations as a public servant”, “duty of loyalty to [his/her] employer” and “the limits imposed by [his/her] employment”. Counsel cites Hugessen J. in Luscher v. Deputy Minister, Revenue Canada, Customs and Excise,[21] and asserts that no Charter right or freedom can be justified in such circumstances.

[38]      In addition, he contends that the decision of the Associate Deputy Minister does not meet the onus which is necessary to justify a serious violation of the freedom of expression considering that no evidence can be pointed to demonstrate that the objective of the limitation is pressing and substantial, and of sufficient importance to warrant overriding a Charter right.

[39]      Given the important public interest served by allowing the applicants to speak on the issue of the drug approval process and given the central importance of free expression, he further submits, that the strongest possible evidence would be required in order to justify this infringement as being rationally connected to the objective. According to the applicants, no such evidence is present.

[40]      Counsel also argues that the proportionality test was not met, considering that the limit on the applicants’ freedom of expression does not impair their Charter right as little as possible. In fact, by imposing a reprimand and threatening further disciplinary action, the applicants must take the chance that they will be subject to further penalties if they exercise their freedom of expression, given that they were also advised that they could not make unauthorized contact with the media.

[41]      Further, counsel contends that the limit is completely disproportional to the significance of the objective. The effects of the measure on the applicants are substantial, particularly in so far as their right to speak publicly on a serious issue has been virtually eliminated. Moreover, counsel maintains that since there is no evidence regarding the salutary effects of these measures, there can be no proportionality between the negative effects and the purported positive effects.

[42]      Finally, he claims that the comments made by the applicants relative to problems in the drug review process within Health Canada amount to permissible criticism (and thus protected) by public servants in so far as those problems, in their opinion, will create substantial risk for the life, health and safety of the public at large.

[43]      In this regard, counsel relies on Fraser v. Public Service Staff Relations Board,[22] a case which did not deal with the Charter, wherein the Supreme Court of Canada addressed the issue of public criticism of government policies by public service workers and recognized that the duty of loyalty could place a limit on freedom of expression in certain circumstances. The Supreme Court identified two situations where freedom of expression prevails over the duty of loyalty, namely, where the Government is engaged in illegal acts, or if its policies jeopardize the life, health, or safety of the public, and where criticism does not have an impact on a public servant’s ability to perform effectively the duties of a public servant or on the perception of that ability.

Respondents’ Submissions

[44]      The respondents first argue that the applicants’ contention that their comments made to the media clearly fall within the exception to the duty of loyalty is raised for the first time on the application for judicial review. Counsel submits that it was incumbent on the applicants to put this argument before the Associate Deputy Minister, and not having done so, the applicants cannot now be heard to allege error on the part of the Associate Deputy Minister.

[45]      Further, the respondents submit that the protection is extended to public allegations for misconduct or danger to public health only if the allegations are sufficiently specific that they can be investigated, evaluated, challenged and verified. For example, the applicants allege that managers within Health Canada are “doing all kinds of tricks to subvert our scientific knowledge and contribution”, but does not identify the managers in question or give particulars of the alleged improper actions by those managers. Similarly, the applicants make general accusations of “being pressured to approve drugs of questionable safety”, but does not name the persons alleged to have exerted the pressure, or identify the drugs referred to, or explain why they say those drugs are of questionable safety. Unsubstantiated allegations are nothing more than subjective opinions and are not protected under the reasoning in Fraser.

[46]      The respondents contend that the Associate Deputy Minister clearly had the Fraser test in mind when he concluded that the applicants’ comments were inappropriate and did not err in his application of that case’s principles to the facts of this case.

[47]      The respondents submit that the common law duty of loyalty, as the law invoked in issuing the written reprimand/instruction and in rejecting the grievances, survives scrutiny under a section 1 of the Charter analysis. Further, given that the limit in the case at bar is prescribed by common law rather than by a statute or regulation, the respondents suggest that a less formal analysis than that formulated in The Queen v. Oakes may be more appropriate.[23]

[48]      Further, the respondents contend that it is beyond dispute that the duty of loyalty owed by public servants is rationally connected to the objective of promoting an impartial and effective public service, and that it impairs the applicants’ freedom of expression as little as reasonably possible in order to reach that objective. As explained in Fraser the duty of loyalty does not demand absolute silence from public servants. As noted earlier,[24] there are two situations where public criticism is permissible. The respondents contend that these exceptions to the duty of loyalty should not be expanded to embrace the sort of vague and general criticism levelled by the applicants.

[49]      Moreover, given the existing exceptions, the respondents claim that the duty of loyalty only has modest and focussed effects on freedom of expression, and these restrictive effects, are outweighed by the positive effects of the duty of loyalty in securing an impartial and effective public service.

[50]      Accordingly, the respondents submit that there is no compelling reason for the Court to reformulate the duty of loyalty.

Interveners’ Submissions

[51]      The interveners submit that the applicants’ expression, in that it concerned the functioning of government institutions, is precisely the type of expression intended to receive constitutional protection. Furthermore, the applicants spoke out regarding potential threats to public health and shortcomings of the agencies charged with protecting public health, matters of great concern to the entire population. Therefore, any infringement of the applicants’ right of expression should be subjected to the highest possible scrutiny.

[52]      Protection and promotion of open, democratic societies also requires recognition that freedom of expression goes further than just protecting the right of an individual to speak out. In a social or political context, freedom of expression also protects the right to receive information and ideas which allow the recipients to appreciate matters of concern, form their own opinions, make decisions, and participate in public dialogues on an informed basis.

[53]      The interveners argue that they have a keen interest in government action which restrains public servants, particularly those charged with health or safety protection, from speaking out about their concerns. They are Canadian, non-profit organizations formed to further objectives such as the protection and promotion of public health, the protection of the environment, and safeguarding the integrity of government processes.

[54]      Lastly, they contend that the applicants expressed concerns about perceiving pressure to approve drugs which they felt should not be approved and about the integrity of government drug approval processes. These matters are of critical public interest.

ANALYSIS

Standard of Review

[55]      This Court must first determine what is the appropriate standard of review to adopt in this application for judicial review.

[56]      The respondents submit that the Associate Deputy Minister (the ADM) should be afforded a very high level of deference as to both his factual conclusions and his application of the duty of loyalty. Counsel for the respondents claims that the subject-matter of the grievance is a matter of the internal, day-to-day management of Health Canada and that the ADM is one of the most senior managers of the Department.

[57]      The respondents add that given that this sort of decision is not subject to adjudication under the Public Service Staff Relations Act,[25] in contrast to disciplinary matters involving a financial penalty or dismissal, only the narrowest scope of judicial review is intended and that this Court should intervene if the decision is patently unreasonable.

[58]      In the present application for judicial review, the issue is whether the ADM erred in holding that considering the applicants’ duty of loyalty as public servants, their freedom of expression was reasonably restricted by the imposition of the reprimand/ instruction. In reaching his conclusion, it is without a doubt, that the ADM was called on to weigh Charter values.

[59]      The respondents seem to suggest that this application can be confined to a review of an administrative decision rendered by the ADM. However, as articulated in Ross v. New Brunswick School District No. 15[26] by the Supreme Court of Canada, an administrative law standard and the Charter standard are not conflated into one standard. Therefore, when the issue involves a Charter challenge, we are no longer strictly in an administrative law context.

[60]      As expressed by counsel for the respondents at the time of the hearing, the ADM is not legally trained and his expertise is limited to management issues. As a result, given the ADM’s circumscribed expertise and the fact that he was called on to weigh Charter values in his appreciation of the facts, I am of the view that little deference should be accorded to his decision. Accordingly, the applicable standard of review is that of correctness.

Charter Scrutiny

[61]      At the outset I will proceed with the question of whether the duty of loyalty, the essence of the reprimand/instruction in the case at bar, is a reasonable limit within the meaning of section 1 of the Charter. Afterwards, my attention will be directed toward a review of the ADM’s administrative decision in order to determine whether he erred in law by denying the applicants’ grievance and holding that their freedom of expression was reasonably restricted by the imposition of the reprimand/instruction.

[62]      In the present case, both parties concede that the government’s conduct, namely that of imposing a reprimand/instruction upon the applicants, constitutes a limit of the applicants’ freedom of expression within the meaning of paragraph 2(b) of the Charter.

I.          Analysis under section 1 of the Charter

[63]      At issue is whether the duty of loyalty is a reasonable limit within the meaning of section 1 of the Charter.

[64]      The public servant’s duty of loyalty is recognized by the oath or affirmation taken upon by joining the Public Service.[27]

[65]      As noted earlier, Fraser v. Public Service Staff Relations Board[28] is the leading case as to the duty of loyalty owed by public servants. The case is significant in so far as it established the bounds of permissible public criticism of government policies by public servants.

[66]      The case dealt with the dismissal of a federal public servant who made critical public statements regarding certain policies of the government. While the Charter was not at issue in the case, the constitutional status and importance of freedom of expression was recognized in defining the content of the duty of loyalty.

[67]      Dickson C.J., writing for a unanimous Court, affirmed that a balance had to be struck between the duty of loyalty and freedom of expression. In fact, he said that the central issue in Fraser was to determine “the proper legal balance between (i) the right of an individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, qua federal public servant, to fulfil properly his or her functions as an employee of the Government of Canada.”[29]

(a)       Prescribed by law

[68]      In the case at bar, it should be noted that the reasonable limit is provided not by a law but by a common law rule, namely that of the duty of loyalty. It is this law that was invoked in denying the applicants’ grievances at both levels.

[69]      In R. v. Swain[30] the Supreme Court of Canada confirmed that a common law rule can be a limit which is “prescribed by law” for the purposes of a section 1 analysis. More particularly, Lamer C.J., writing for the majority, held that different considerations are at issue when a Charter challenge involves a common law rule, that is, a judge-made rule, rather than a legislative provision.[31] For example, the question of deference to the legislature is not an issue.

[70]      Another consequence will be on meeting the onus. Normally the burden of proof will lie upon the party supporting the limitation. However, as noted by the respondents it is unrealistic to speak of the burden of proving that a law meets the requirements of section 1 where faced with a judge-made law. Reference to legal principle and reasoning in such a case will provide a sufficient basis.[32]

[71]      Finally, Lamer C.J. in Swain also stated that a Charter analysis which involves a judge-made rule does not necessarily require the application of a section 1 analysis.

[72]      However, in the present case, considering that both parties have made submissions relative to a section 1 analysis, I consider it more appropriate to proceed with the Oakes[33] test, keeping in mind nonetheless, that the limit in the present case, is in fact a common law rule and not a law.

[73]      In this regard, the applicants submit that the limitation placed on the applicants’ freedom of expression is based on vague and undetermined criteria as to make it impossible for them to comply with the Department’s directions. More particularly, counsel for the applicants questions the exact content of the “duty of loyalty”, and queries the standard that should be employed to determine whether the applicants can engage in “reasonable” criticism.

[74]      I do not accept this submission given that counsel for the applicants is in fact directing his argument not at the common law duty of loyalty rule, but rather at the language employed by the ADM in his decision letter. Letters from the executive branch can not, in my opinion, be characterized as a “law” within the meaning of section 1. Therefore, the starting point of the analysis is not the “gag” order contained in the ADM’s decision letter as suggested by counsel for the applicants, but the judge-made rule enunciated by Dickson C.J. in Fraser. A restriction or limitation to a Charter right or freedom must have its source in law.[34]

[75]      Clearly, the duty of loyalty is a well-known and long-accepted legal principle which provides an intelligible standard by which to measure an employee’s conduct.[35] I accept that it may present some difficulty in its application to a specific situation, however, difficulty in interpretation cannot be equated with the absence of an intelligible standard.[36]

[76]      In R. v. Nova Scotia Pharmaceutical Society,[37] Gonthier J. stressed that it is only in the rare case that a rule will be found to be so vague as not to qualify as a limit prescribed by law. He summarizes the doctrine of vagueness in this proposition: “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.”[38]

[77]      The legal debate on the common law duty of loyalty pursued in the Fraser case attests to the fact that the limitation at bar cannot be qualified as constitutionally vague, and I am thus of the opinion that the common law duty of loyalty is sufficiently precise to constitute a limit “prescribed by law”. In any event, the doctrine of vagueness will be considered in the minimal impairment test of the proportionality analysis under section 1 of the Charter below.

[78]      If the common law rule survives the Charter scrutiny, this Court will have to determine if the governmental action, namely the Associate Deputy Minister’s decision, infringes Charter values.

(b)       Pressing and substantial objective

[79]      The objective of the duty of loyalty owed by public servants is to promote an impartial and effective public service. This was affirmed by the Supreme Court of Canada in Fraser, and subsequently followed in Osborne.[39] An impartial and effective public service is essential to the functioning of a democratic society. The importance of the duty of loyalty by public servants is conveyed by Sopinka J. in Osborne:

The importance of the governmental objective is not contested in this case. It is quite properly conceded to be the preservation of the neutrality of the civil service to the extent necessary to ensure their loyalty to the Government of Canada and hence their usefulness in the public service. The importance of this objective was fully canvassed in Fraser v. Public Service Staff Relations Board, supra, and in view of the consensus on this issue it is not necessary to elaborate on it. Its importance is underscored by the existence of the political convention [of neutrality] discussed above.[40]

[80]      I should stress that the Osborne case concerned the constitutionality of section 33 of the Public Service Employment Act[41] which prohibited public servants from engaging in work for or against a candidate or a political party. The Supreme Court of Canada held that section 33 infringed the right to freedom of expression but was justified under section 1 of the Charter.

(c)        Proportionality test

(i)    Rational connection

[81]      As illustrated in the Fraser and Osborne cases, it is beyond dispute that the common law duty of loyalty is rationally connected to the objective of promoting an impartial and effective public service. In Fraser, Dickson C.J. stated:

There is in Canada, in my opinion, a similar tradition surrounding our public service [referring to the situation in the U.K.]. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.[42]

(ii)   Minimal impairment

[82]      In Fraser, Dickson, C.J. held that the duty of loyalty does not demand absolute silence from public servants. The Fraser decision instructs us that the common law duty of loyalty encompasses certain exceptions or qualifications:

And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies.[43]

[83]      In my opinion, these exceptions embrace matters of public concern. They ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service. Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence. As explained in Fraser, the duty of loyalty is qualified: “some speech by public servants concerning public issues is permitted.”[44] It is my understanding that these exceptions to the common law rule may be justified wherever the public interest is served. In this regard, the importance of the public interest in disclosure of wrongdoing, referred to as “the defence of whistleblowing”, has been recognized in other jurisdictions as an exception to the common law duty of loyalty.[45]

[84]      For example, in Pickering v. Board of Education, School District 205,[46] the United States Supreme Court ruled that in the absence of proof of false statements knowingly or recklessly made by a teacher, his right to speak on issues of public importance could not furnish the basis for his dismissal, and that a dismissal violated the teacher’s right to free speech.

[85]      Whereas, the United Kingdom has recognized the important role public sector employees can play in raising legitimate concerns about matters at work. However, attempts to introduce legislation to protect public interest whistleblowers have been unsuccessful.[47]

[86]      It therefore follows that, in light of the exceptions to the duty of loyalty, the freedom of expression is restricted only to the extent necessary to achieve the objective of an impartial and effective public service.

[87]      It must be recalled that the duty of loyalty, as a restriction to the freedom of expression constitutes a judge-made law, and as such, the issue of over-breadth may more easily be resolved in so far as the common law rule can be reformulated as to prevent or remedy any possible infringement with Charter values. In fact, the common law duty of loyalty as articulated in Fraser by Dickson C.J. has been tailored to accomplish its specific objective while allowing for exceptions.

(iii)  Proportionality between the effect of the measure and the objective

[88]      Given the exceptions identified above, I believe that the common law duty of loyalty has only modest and tailored effects on a public servant’s freedom of expression. I am of the opinion that the possibility of engaging in a balancing of competing interests, namely the government’s interest in maintaining an impartial and effective public service and that of an employee to inform the public of any wrongdoing as well as the public’s right to have any wrongdoing exposed ensures that proportionality is secured.[48] It is clear that in cases that fall within the Fraser qualifications, the public interest outweighs the objective of an impartial and effective public service.

[89]      In conclusion, I am of the view that the common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter.

II.         Review of ADM’s decision

[90]      Having concluded that the common law duty of loyalty survives Charter scrutiny, I will now turn my mind to a review of the ADM’s decision in order to determine if he correctly identified and applied the Fraser principles of the common law duty of loyalty in concurring to the issuance of the reprimand/ instruction and thus denying the applicants’ grievance.

[91]      In the present case, the duty of loyalty was given effect by the decision rendered by the ADM on January 11, 1998. In denying the applicants’ grievances, the ADM acknowledged that an appropriate balance has to be sought between the freedom of expression and a public servant’s duty of loyalty. The ADM identified the issue before him in the following terms: “[t]he issue before me is whether the limits placed on your freedom of expression by management were reasonable and appropriate in light of your duty of loyalty and the circumstances of this case.”[49]

[92]      In reaching his conclusion the ADM maintained that the freedom of expression was not absolute, and that public servants do not have a licence to criticize publicly and unreasonably the manner in which departments and agencies of government exercise their responsibilities. The ADM also held that in the event that an individual public servant makes use of redress mechanisms available in a department or agency of government and is unsatisfied with the outcome, this does not mean, in and of itself, that this person may engage in highly visible and critical attacks on the decisions, policies, practices and procedures of the Department. He accordingly, concluded that management was justified in issuing the letter of reprimand/ instruction.

[93]      The respondents argue that counsel for the applicants, has departed from their original approach undertaken during the grievance procedure in which they challenged the ADM’s decision based solely on paragraph 2(b) of the Charter by advancing for the first time in this application for judicial review that the criticisms they voiced during the Canada AM interview come within the first qualification of the duty of loyalty identified in Fraser, namely disclosure of policies that jeopardize life, health, or safety of the Canadian public.

[94]      Thus it was incumbent upon the applicants to put the issue squarely before the ADM, and having failed to do so, the applicants cannot be heard on this issue.

[95]      I do not agree. I am of the view that the onus rested with the ADM to verify if the circumstances of the case fell within one of the exceptions of Fraser. It should be noted that the respondents even suggested that the ADM had the Fraser test in mind when he upheld the reprimand/instruction issued to the applicants. Furthermore, at the hearing, counsel for the respondents asserted that it is incumbent on the ADM to determine if the applicants’ conduct falls within the qualifications of Fraser.

[96]      In formulating the issue before him as “whether the limits placed on your freedom of expression by management were reasonable and appropriate in light of your duty of loyalty and the circumstances of this case”,[50] I am of the opinion that the ADM admits that in order to determine whether the applicants have breached their duty of loyalty he must weigh the interests of the applicants against those of the government, hence applying the Fraser test.

[97]      In the same vein, counsel for the respondents argues that the allegations made by the applicants during their appearance on Canada AM were so vague and general as to be incapable of proof. Counsel contends that during the applicants’ appearance on Canada AM, the applicants essentially made unspecific and unchallengeable attacks on the management of the BVD.

[98]      In this regard, I believe the ADM disregarded the context that led to the comments made publicly on national television and failed to proceed with a fair and complete assessment of the competing interests. Accordingly, in my opinion, the ADM committed an error in the application of the Fraser test.

[99]      Indeed, the applicants essentially made statements regarding the drug approval process within the BVD. But more particularly, applicant Chopra discussed the applicants’ health and safety concerns with respect to the approval of growth hormones and antibiotics. The applicants maintained that they were being pressured to approve drugs of questionable safety, and that Health Canada was unwilling to address those concerns. This was largely discounted by the ADM in his examination of the reasonableness of the Department’s action in issuing the reprimand/ instruction letter.

[100]   I am of the view that the record demonstrates sufficient evidence for the ADM to conclude that the applicants’ public criticisms fell within the first qualification of the Fraser test, namely disclosure of policies that jeopardize life, health or safety of the public. A review of the circumstances that led up to the interview on Canada AM reveal that the allegations of a troubled drug approval process were already the subject of several grievances within the Department.

[101]   First, I note that the ADM himself acknowledged in his letter that during the course of the grievance hearing, counsel for the applicants had indicated that they were forced to criticize publicly the drug approval program administered by Health Canada because the various internal mechanisms within the Department failed to address, or incorrectly addressed the concerns that the applicants and others had previously raised. In light of this remark, I cannot accept counsel for the respondents’ argument that the applicants had not previously raised the argument that the applicants’ public comments come within the first qualification identified in Fraser.

[102]   Second, evidence in the record reveals that concerns regarding approvals for veterinary drugs and interference were first raised by drug evaluators within the BVD as early as December 1996 when four drug evaluators filed an internal complaint.[51] The mediation process which followed failed and resulted in the filing of a series of individual and a group grievances. In fact, it should be stressed that Mr. Alan Nymark, the Associate Deputy Minister, was in fact the person responsible for hearing the final level of the group grievance. In a decision dated December 19, 1997, he dismissed the group grievance and characterized the concerns as “interpersonal” problems.[52]

[103]   Third, through their union, the Professional Institute of the Public Service of Canada, the applicants sent a letter to the Prime Minister dated December 16, 1997, outlining their concerns with the drug approval process within the BVD and requesting a judicial inquiry into the operation of Health Canada.[53] I consider it worthwhile to cite a particularly relevant excerpt of the letter:

We believe the regulatory intent of this Act [Food and Drugs Act and Regulations] is being compromised to the point of placing the health of Canadians in jeopardy. Our members are being pressed by management to ignore rigorous professional standards of practice thereby creating unacceptable and unnecessary risks in the drug assessment process. This is an unconscionable demand which can only benefit drug manufacturers who stand to reap short term profits.

Health Canada’s mandate includes the protection of human safety through the evaluation of drugs and chemicals sold by manufacturers in Canada for the treatment or growth stimulation of food producing animals. Numerous media reports over the past number of months are prompting Canadians to raise questions about the government’s capacity to protect them from serious health risks. Health Canada plays an integral part in ensuring Canadians do not face disasters such as BSE (“mad cow disease”). We cannot afford to play “Russian Roulette” with the legislation that governs the inspection of food and drugs in this country.[54]

[104]   The record also reveals evidence which corroborates the applicants’ concerns relative to the health and safety risks associated with the drug approval process.

[105]   Concerns regarding the drug approval process were put forth by scientists within Health Canada before the Public Service Staff Relations Board (the Board).[55] More specifically, several drug evaluators for Health Canada presented a grievance against Mr. Alan Nymark, the Associate Deputy Minister, wherein, among others, the scientists raised concern regarding pressure by management within the BVD to approve new veterinary drugs of questionable safety.[56] Before the Board, counsel for the scientists indicated that serious scientific questions were being brought forward regarding irregularities with respect to approvals for new veterinary drugs for food producing animals and interference by management Health Canada and industry in the scientific data evaluation. Counsel also provided documentary evidence to support the tenor of the scientific concerns raised.[57]

[106]   In its decision, dated December 21, 1998, the Board held that it lacked jurisdiction to examine and assess the scientific concerns relating to the drug approval process, nevertheless, the Board did observe that “[t]he evidence does show the presence of troubling scientific and interpersonal conflict in the BVD workplace.”[58]

[107]   In addition, concerns with respect to the drug approval process were underscored by the Standing Senate Committee on Agriculture and Forestry (the Committee) mandated by the Senate of Canada as a result of the controversy surrounding the drug rBST (a growth hormone). In their interim report, the Committee makes numerous recommendations, among them, is the recommendation that the Government conduct an evaluation of the drug approval process to ensure that it fully safeguards human and animal health and safety. In fact, the Committee highlighted specific concerns with the approval process. For instance, the Committee indicated that it believes that Health Canada drug evaluators must be permitted to undertake their duties without perceived pressure from industry or from Health Canada management for them to approve drugs of questionable safety.

[108]   In light of this evidence, not only do I find the respondents’ contention that the applicants’ allegations are too vague and unspecific to be viewed as legitimate allegations of danger to the health under the first Fraser qualification of the duty of loyalty, to be without merit, but I am of the opinion that the ADM erred in qualifying the applicants’ conduct as inappropriate public criticism of management. In my opinion, when placed in the context of previous incidents, the conduct of the applicants constitutes an exception to the common law duty of loyalty as identified in Fraser. While the statements made by the applicants expose their frustration, they more importantly disclose a legitimate public concern with respect to the efficacy of the drug approval process within the BVD.

[109]   In addition, public criticism aired on national television was not the first step taken in order to have the issue of the safety and efficacy of the drug approval process addressed. The applicants endeavoured on several occasions to have their concerns addressed internally without success.

[110]   Moreover, in describing the applicants’ duty of loyalty, the ADM failed to consider the evidence in the record relating to the applicants’ concern with respect to the drug approval process administered by Health Canada. And yet his letter indicates that he did take into account an incident involving comments applicant Chopra made to the media in December 1997.[59]

[111]   In regard to the ADM’s appreciation of the appropriate balance necessary between the applicants’ freedom of expression and a public servant’s duty of loyalty, I am of the view that the ADM should not have concluded that the limit placed on the applicants’ freedom of expression by management was reasonable and appropriate in light of their duty of loyalty and the circumstances of this case. I believe that he failed to proceed with a fair and complete assessment of the applicants’ right, as members of the Canadian public, to speak on an important public issue. The following is an excerpt of his decision:

Acknowledging that an appropriate balance has to be sought between freedom of expression and a public servant’s duty of loyalty, recognizes that freedom of expression is not absolute. This means that public servants do not have a license to criticize publicly and unreasonably the manner in which departments and agencies of government exercise their responsibilities. Reasonable limits may be imposed on their freedom of expression, including those inherent in an employee’s duty of loyalty and in a public servant’s responsibility to carry out his or her duties in a fair and impartial manner.

Public servants, like other Canadians, enjoy freedom of expression and the ability to participate in public discussions of public issues. In so doing, public servants must, however, take into account the limits imposed by their employment. As a senior drug evaluator, it is important that your actions do not compromise your ability to act impartially or the public perception of your ability to do so. You should not take advantage of your position to express publicly and unreasonably, in the media, opposition to the manner in which the Department exercises its responsibilities under the Food and Drug Act.[60]

[112]   This demonstrates that the ADM did not consider the possibility that the applicants’ statements amount to a public concern issue. By focussing primarily on the applicants’ duty of loyalty to his employer, the ADM failed to examine the applicants’ right to freedom of expression on an issue of public interest where internal redress was unsuccessful. As a general rule, I believe that public criticism will be justified where a reasonable attempt to resolve the matter internally would have been unsuccessful.

[113]   The applicants’ statements essentially pertained to their concerns regarding the drug evaluation process within the BVD and its potential threat to public health. The mandate of the Health Protection Branch is the protection of the health and safety of Canadians in accordance with the provision of the Food and Drugs Act. Therefore, as drug evaluators, the applicants are responsible for conducting objective, scientific evaluations of new veterinary drug submissions to ensure that new drugs comply with the human safety requirements set out in legislation.

[114]   There is no evidence demonstrating the negative impact their statements have had on their ability to perform their duties as drug evaluators. In fact, the applicants were not dismissed from their positions. It is also clear that in making public criticism of the drug approval process, the applicants had no personal interest at stake. Their public statements were an effort to correct the problems related to the drug review process. Furthermore, notwithstanding the pre-existing poor working climate which appears to have plagued the BVD for several years,[61] there is also no evidence with respect to whether the applicants’ statements created disruption among co-workers or damaged the reputation of the BVD.

[115]   Finally, I am of the opinion that the ADM erred in finding that the directive contained in the reprimand letter to “refrain from further unauthorized speaking to the media”, does not amount to an absolute prohibition on the applicants’ freedom of expression.

[116]   The directive to refrain from unauthorized contact with the media imposes an absolute ban on speaking to media if denied authorization by management. In upholding this directive, I believe that this reflects the notion that the ADM does not accept that there are exceptions to the duty of loyalty as established in Fraser. In this regard, I find it relevant to cite an excerpt of a B.C. labour arbitration decision wherein two senior corrections officers employed by the Corrections Branch within the Government of British Columbia were dismissed after making critical comments about the operations of the Corrections Branch during several appearances on television:

… there are several dimensions to an employee’s duty of loyalty in the context of public criticism of his employer. An employee is expected to give his employer both loyalty and discretion, to serve his employer in good faith and fidelity. Conversely, an employee does not fulfil his duty of loyalty if he deliberately does something which is prejudicial or likely to be prejudicial to the interests or reputation of his employer. With respect to public criticisms of the employer, the duty of fidelity does not impose an absolute “gag rule” against an employee making any public statements that might be critical of his employer. An employee need not, in every circumstance, follow Cervantes’ advice, “A closed mouth gathers no flies”. The duty of fidelity does not mean that the Daniel Ellsbergs and Karen Silkwoods of the world must remain silent when they discover wrongdoing occurring at their place of employment. Neither the public nor the employer’s long-term best interests are served if these employees, from fear of losing their jobs, are so intimidated that they do not bring information about wrongdoing at their place of employment to the attention of those who can correct such wrongdoing.[62]

[117]   The ADM seems to be suggesting that the only acceptable avenue is to raise an issue internally. He thus does not even acknowledge the possibility of contacting the media in exceptional circumstances where internal redress has failed. This is reflected in his last comments:

In the course of the hearing, Ms Allen referred to your concern about certain aspects of the drug review process which you felt needed to be addressed. I would encourage you to raise this issue with the Director of the Bureau of Veterinary Drugs or alternatively you might wish to bring this issue directly to the attention of Mr. Ian Shugart who, as you know, is reviewing the risk management process and science platform of the Department.[63]

[118]   A complete prohibition on any future contact with the media does not take into account the exceptions identified in Fraser. I am of the opinion that preventing the applicants from going to the media in cases of legitimate safety or health concerns regarding policies within Health Canada is unreasonable.

[119]   The scientists were justified in going to the media. I accept that the evidence demonstrates that they meet the first exception of Fraser, and that they should not have been reprimanded/restricted for the disclosing information related to the troubled drug approval process within the BVD.

[120]   In summary, this Court has found:

The common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter.

Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence.

The possibility of engaging in a balancing of competing interests, namely the government’s interest in maintaining an impartial and effective public service and that of an employee to inform the public of any wrongdoing as well as the public’s right to have any wrongdoing exposed ensures that proportionality is secured. In cases that fall within the Fraser qualifications, the public interest outweighs the objective of an impartial and effective public service.

The applicants essentially made statements regarding the drug approval process within the Bureau of Veterinary Drugs. But more particularly, the applicants discussed their health and safety concerns with respect to the approval of growth hormones and antibiotics, maintained that they were being pressured to approve drugs of questionable safety, and that Health Canada was unwilling to address those concerns. The public statements made by the applicants expose their frustration, however, they disclose a legitimate public concern with respect to the efficacy of the drug approval process within the Bureau of Veterinary Drugs.

More importantly, public criticism aired on national television was not the first step taken in order to have the issue of the safety and efficacy of the drug approval process addressed. The applicants endeavoured on several occasions to have their concerns addressed internally without success. As a general rule, public criticism will be justified where reasonable attempts to resolve the matter internally are unsuccessful.

This was largely discounted by the Associate Deputy Minister in his examination of the reasonableness of the Department’s action in issuing the reprimand/ instruction letter.

The Associate Deputy Minister of the Ministry of National Health and Welfare disregarded the context that led to the comments made publicly on national television and failed to proceed with a fair and complete assessment of the competing interests. The Associate Deputy Minister therefore committed an error in the application of the Fraser test.

CONCLUSION

[121]   For the foregoing reasons, this application for judicial review is allowed with costs. The decision of the Associate Deputy Minister is set aside and the matter is referred back to the Associate Deputy Minister with the direction that he consider the applicants’ grievances in accordance with the reasons of this Court.

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