Feb 8, 2017

Facts: T was a federal prosecutor with the Public Prosecution Service of Canada. She submitted a request to the Public Service Commission for a leave of absence without pay to seek the nomination of a political party and, if successful, to run as that party’s candidate in the October 2015 federal election.

T’s supervisor supported her request. However, the Director of Public Prosecutions disagreed that a perception of impartiality would not arise if T was unsuccessful in seeking nomination or being elected. In his view, seeking a political party’s nomination shows a significant allegiance to the party and its platform, which could be perceived as interfering with T’s ability to independently do her job as prosecutor.

The Commission was not satisfied under s 114 of the Public Service Employment Act that T could return to her position without being impaired or being perceived to be impaired in her ability to perform her duties impartially, and it rejected T’s request. T sought judicial review but was unsuccessful in the Federal Court. T appealed.

Decision: Appeal allowed. Commission’s decision set aside.

Pelletier JA, writing for a unanimous panel, held that the standard of review of the Commission’s decision is reasonableness. After reviewing the relevant sections of the Act, he observed that Parliament’s concern was not necessarily political impartiality, but rather the impairment or perception of impairment of a public official’s ability to perform her duties in a politically impartial manner. Thus, in order to give or refuse a public official permission to seek elected office, the Commission should have a clear idea of what would impair, or give the appearance of impairing, a public official’s ability to perform her employment duties in a politically impartial way.

The Commission is required to base its decision on a future state of affairs – whether seeking elected office will impair a public official’s ability to perform her duties impartially in the future and whether the public will so perceive. Consequently, the Commission must have some idea what facts or characteristics ascertainable prior to an election campaign are or may be predictors of the public official’s conduct or the perception of that conduct after the campaign.

The Act provides a list of factors that the Commission may consider in deciding whether to grant a public official permission to run for elected office: the nature of the election, the nature of the employee’s duties, and the level and visibility of the employee’s position. The question arises as to what value these factors have in helping the Commission decide the two necessary inquiries. The Commission appears to have been uncritical of the Director’s argument that a prosecutor’s candidacy – and the significant allegiance to a political party and its platform that goes along with such candidacy – undermines the independence of the prosecutor’s office.

The Commission referred to the autonomy and discretion T had while working as a federal prosecutor, and the increased publicity, visibility and recognition that would be associated with seeking nomination and being a candidate in a federal election. The suggestion was that as publicity, visibility and recognition increase, the ability to perform one’s duties impartially (or the perception thereof) decreases. However, this is not self-evident and the conclusion was not justified in the Commission’s reasons. The Commission identified autonomy, discretion and visibility as factors in its consideration of impairment, without indicating how those factors led it to its ultimate conclusion.

Commentary: This case stands as a counterpoint to Phillips v Ontario Securities Commission. As in Phillips, the issue before the Court here was fundamentally whether the Commission’s reasons adequately – if implicitly – justify the conclusions reached. And, as in Phillips, the most troubling aspect was the silence of the Commission’s reasons on a central bridge along the reasoning pathway. Here, the unexplained conclusion was that the public official’s autonomy, discretion and visibility would impair her ability to perform her duties impartially, or lead to a perception of impairment.

The Court in this case did not provide much insight as to why the Commission’s conclusion could not be found “implicitly” in its decision or in the record or in its acceptance of the Director’s position. Conspicuous by its absence is any reference to the leading cases from the Supreme Court on deferential review and implicit reasons, or to decisions from the Federal Court of Appeal itself on the issue.

It is evident throughout the Court’s decision that the Commission’s reasons left several significant unanswered questions, including how autonomy and discretion in a public official’s duties are indicative of the manner in which that official will behave, or be perceived to behave, following an unsuccessful attempt to be elected to office – particularly when the public official is under a duty of loyalty. The fact that the Commission referred to the factors identified in the Act was not sufficient and the Commission’s conclusions could not be justified merely on the basis of being “self-evident”.

It remains to be seen whether this case is an outlier or signals a pull back from the increasing tendency to defer to “implicit reasons”. In either event, it would have been helpful for the Court to explain why the Commission’s decision could not be upheld by deference to implicit reasons. Adequacy of reasons on reasonableness review remains an interesting hotspot in judicial review and we can expect further appellate guidance on this issue in the coming months.

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