Federal Court of Appeal Raises Questions about Reprisal Tribunal Decision

In 2017, the Public Servants Disclosure Protection Tribunal rendered its first decision on the merits of a reprisal complaint under the Public Servants Disclosure Protection Act. As the first decision on the merits, a number of critical issues of legal principle were raised by the parties. Ultimately, the Tribunal ruled on several of these issues, a ruling which had significant implications for future Tribunal cases. In particular, the Tribunal concluded:

• Intent, in the sense of vengeance, must be proven in order to establish reprisal;

• Minor or insignificant reprisals were not protected by the Act, effectively imposing a de minimus standard; and

• An employee cannot receive reprisal protection for subsequent disclosures of the same wrongdoing.

In addition to these legal rulings, the Tribunal dismissed the complaint on the facts, concluding that the employee had not proven that she experienced negative effects as a result of the alleged reprisal measures.

The employee sought judicial review of the Tribunal decision. In a judgment rendered this month, the Federal Court of Appeal dismissed the application, concluding that the Tribunal’s findings that there was no negative effect on the employee could not be set aside.

Counsel had urged the Court to address the legal issues given their impact upon other cases. The Court declined to do so, because this would take it “too far into a law-making role”. In spite of this, the Court went on to comment upon the Tribunal’s analysis as follows:

“But we wish to add that many of the legal conclusions reached by the Tribunal in this case warrant critical scrutiny. As a matter of administrative law, other members of the Tribunal are not bound by the legal conclusions reached here… If the particular case requires it, and until this Court settles the matter, a member of the Tribunal is free to conduct her or his own analysis and reach different legal conclusions.”

By this language, it would appear that the Court has signaled that the reasoning of the Tribunal on these legal issues need not be followed in the future, a conclusion which represents significant progress for complainants who are victims of reprisal.

The employee in this matter was represented by David Yazbeck and Michael Fisher of our firm.