This matter was settled.
Tribunal File No. PSDPT-TPFD-2012-01
Application by the Public Sector Integrity Commissioner of Canada
to the Public Servants Disclosure Protection Tribunal
In the Matter of:
Notice of Application
Pursuant to subsection 20.4(1) of the Public Servants Disclosure Protection Act, S.C., 2005, c. 46 (the "Act"), the Public Sector Integrity Commissioner of Canada
(the "Commissioner") hereby makes an application to the Public Servants Disclosure Protection Tribunal (the "Tribunal") for a determination of whether or not a reprisal, as defined under subsection 2(1) of the Act, was taken against Gérard Lambert (the "Complainant").
Type of Order Requested
- Pursuant to paragraph 20.4(1)(a) of the Act, should the Tribunal find that a reprisal was taken against the Complainant, the Commissioner intends to seek an order respecting a remedy in favour of the Complainant.
Basis for the Application
- This Application relates to an allegation that the Complainant's acting appointment was terminated on May 17, 2002 as a reprisal measure for having made a protected disclosure of wrongdoing to his supervisors, as defined under the Act.
- In accordance with the former Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (the Policy) created by the Treasury Board in accordance with the Financial Administration Act, R.S.C., 1985, c. F-11, on May 31, 2002, the Complainant and three colleagues disclosed to the Public Service Integrity Officer (PSIO) information about wrongdoings allegedly committed by Health Canada. On August 1st, 2002, during a meeting, the Complainant also reported to the PSIO having suffered a reprisal as a result of his disclosure to his supervisors, made on May 13, 2002.
- The PSIO decided to deal with both the reprisal complaint and the disclosure of wrongdoings in the same file.
- On March 21, 2003 the PSIO concluded that a reprisal measure was taken against the Complainant because he had, in good faith, disclosed to his supervisors what he believed to be a wrongdoing under the Policy. The PSIO recommended that the Complainant "be re-instated in an Acting Team Leader position at the earliest opportunity or that he be offered another remedy in the form of a career enhancing opportunity that is acceptable to him".
- In the same decision, the PSIO dismissed the allegations of wrongdoings made by the Complainant and three other colleagues against Health Canada.
- The Complainant and his colleagues applied to the Federal Court of Canada for a judicial review of the PSIO's decision.
- On April 29, 2005, the Federal Court quashed the decision of the PSIO and sent the matter back to PSIO for a redetermination. As a result, a second investigation was commenced by the PSIO in regard to all allegations of wrongdoing and the reprisal complaint. For this second investigation, the PSIO decided to deal with the reprisal and wrongdoing allegations separately, thereby opening two files.
- On April 15, 2007, while these investigations were still under review, the Act came into force and replaced the Policy. The Office of the Public Sector Integrity Commissioner of Canada replaced the PSIO. Pursuant to section 54.3 of the Act, the then Commissioner continued both investigations already initiated by the PSIO. It was determined by the then Commissioner that since the disclosure investigation was being continued as though made under the Act, this then enabled the Act to apply to any consequences of that disclosure, including a reprisal.
- On March 12, 2009, the then Commissioner concluded that reprisal had been taken against the Complainant and she reiterated the recommendation made by the PSIO in his report of March 21, 2003. However, the then Commissioner exercised her discretion and decided not to refer the matter to the Tribunal. The then Commissioner dismissed the complaint under section 20.5 of the Act and informed the parties that they should agree on the implementation of the recommendation made by the PSIO (which did not occur).
- In 2011, after his appointment, the Interim Commissioner decided that all disclosure and reprisal files closed by the former Commissioner were to be reviewed by an independent third party.
- Having considered the results of the independent review and taking into account the factors stated at subsection 20.4(3) of the Act, the Commissioner is of the opinion that an application to the Tribunal is warranted in relation to this complaint.
- Pursuant to paragraph 20.4(3)(a) of the Act, there are reasonable grounds for believing that the Complainant's termination of his acting appointment was a reprisal measure taken against him.
- Pursuant to paragraph 20.4(3)(d) of the Act, the Commissioner has determined that it is in the public interest to make an application to the Tribunal, having regard to all the circumstances relating to this complaint.
Summary of the Complaint
- The Complainant was at all material times a public servant employed by Health Canada (the employer) as veterinary drug evaluator. The employer is the regulatory authority responsible for approving new veterinary drugs and new uses of existing approved drugs under the Food and Drugs Act, R.S.C., 1985, c. F-27. A drug evaluator is responsible for making scientific assessments and evaluations of veterinary medical and animal production data and for making recommendations as to the safety and efficacy of pharmaceutical products for use in animals and fish. A positive recommendation results in the issuing of a Notice of Compliance.
- On April 2, 2002, the Complainant was appointed acting Team Leader of the Pharmacology and Toxicology Team of the Human Safety Division of Health Canada for a period of four months (from April 10 to August 1st, 2002).
- On May 10, 2002, Health Canada approved a Notice of Compliance for the use of an antibiotic drug, known as Tylan.
- On May 13, 2002, the Complainant and three other colleagues wrote a memo to their supervisors expressing their concern about the impending approval of Tylan. They indicated that such an approval by-passed the legislative requirements of the Food and Drugs Act and Regulations, due to the absence of sufficient data to ensure human safety. The Complainant and his colleagues asked for a complete revision of the manufacturer's submissions related to Tylan.
- On May 14, 2002, a meeting took place between the Complainant and his superiors and, without prior notice, the Complainant was told that his acting appointment as Team Leader of the Pharmacology and Toxicology Team would be terminated on May 17, 2002.
- On May 17, 2002, an e-mail was sent to the Human Safety Division staff, indicating new acting appointments, including the team leader position of the Pharmacology and Toxicology Team of the Human Safety Division.
- The Complainant alleges that the termination of his acting appointment was a reprisal for having made protected disclosure of wrongdoing to his supervisors.
The aforementioned information is provided to the best of my knowledge and belief.
Signed at Ottawa, Ontario, this 28 day of March 2012.
Original signed by:
Public Sector Integrity Commissioner