MURLIDHAR GUPTA Applicant v. THE ATTORNEY GENERAL OF CANADA, 2020 FC 952

Date: 20201006 Docket: T-1507-19 Citation: 2020 FC 952 Montréal, Québec, October 6, 2020 PRESENT: The Honorable Madam Justice St-Louis BETWEEN: MURLIDHAR GUPTA Applicant and THE ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] The Applicant, Dr. Murlidhar Gupta, seeks judicial review of the August 15, 2019 decision by Natural Resources Canada [NRCan] that adopted an administrative investigation report. II. Context [ 2 ] Dr. Gupta is a research scientist who obtained his Ph.D. from Université Laval in 2002. The same year, Dr.

Gupta was hired at CanmetENERGY, a division of NRCan’s Innovation and Energy Technology Sector. Dr. Gupta first joined NRCan as a post-doctoral research fellow with the Zero-Emission Technology group of the Clean Electric Power Generation division, and in 2004, he became a research scientist (RES-01). On April 1, 2006, he was promoted to the RES-02 level and, in brief, in November 2010, he was reassigned to Bioenergy Systems in the Industrial Innovation Group. [ 3 ] Over the years, Dr.

Gupta submitted a series of dossiers to be considered for promotion from his current classification as a RES-2 to the RES-3 level. However, excluding years 2018 to 2020, which are pending, Dr. Gupta has been unsuccessful in achieving this promotion. Disputes ensued between the parties, mainly by way of grievances and judicial review applications. Ultimately, in June 2017, the parties agreed to and signed a Memorandum of Settlement, whereby an independent third party investigator would consider Dr.

Gupta’s allegations that his promotion dossiers had been improperly held back as a result of workplace disputes. [ 4 ] Particularly relevant to these proceedings, considering the arguments raised, are articles 4, 8, 9(

d) and 10 of the Memorandum of Settlement. [ 5 ]

Article 4 outlines the investigator’s mandate: " “[It] will be to review the workplace dispute elements that have been raised in the Employee’s dossiers under the criteria of ‘Relevant Factors’ for the 2012-2017 years. The investigator will determine four issues : "

a) Whether the events alleged by the Employee occurred;

b) Whether those events constitute workplace dispute activity that might have had an impact on Dr. Gupta’s career path (the ‘workplace dispute’); and

c) Whether that workplace dispute, if any, had a negative impact on the Employee’s application for a promotion; and

d) If so, the extent of that impact and whether the Employee would have been promoted but for that workplace dispute.” [ 6 ]

Article 8 states: " “The investigator will provide a

summary to both parties of the information obtained through these interviews, and provide both parties with an opportunity to make written submissions concerning that

summary.” " [ 7 ]

Article 9 states: " “[T]he Employer and Employee agree to be bound by the outcome of the investigation, and in particular […] (d) [t]he Employee and Employer agree not to apply for judicial review of the investigator’s decision.” " [ 8 ]

Article 10 states: " “If a dispute arises out of, or in connection with this Agreement, including any question regarding its existence,

interpretation, validity or termination, the Parties shall attempt to resolve the dispute though good faith negotiation, and may, if necessary, and the Parties consent in writing, resolve the matter through mediation by a mutually acceptable mediator prior to commencing legal proceedings.” " [ 9 ] The parties agreed on the selection of the investigating firm. The investigators conducted interviews with Dr. Gupta and with 10 other witnesses, and subsequently presented each witness with an outline of their declaration for acknowledgment and signature. In March 2019, the investigators submitted their Final Report, which contains 7 sections, including a

section dedicated to the investigators’ findings, outlining 9 of the witness interviews, in addition to that of Dr. Gupta. [ 10 ] In May 2019, Dr. Gupta’s counsel raised concerns regarding the investigators’ non-compliance with

article 8 of the Memorandum

of Settlement, since no

summary of the information had been provided to Dr. Gupta prior to the Final Report being issued. Dr. Guptawas then provided with the opportunity to submit additional comments on the entire Final Report. [11] Dr. Gupta also raised concerns as to the investigators’ statement that their request for Dr. Gupta’s comments on his own interviewnotes was not acknowledged. Dr. Gupta indicated that he provided these comments, but this element remained peripheral in the parties’submissions in these proceedings. [12] On June 19, 2019, Dr.

Gupta provided his response to the investigators’ Final Report by way of an 81-page submission, whichincluded his comments as well as supporting documents such as a copy of one of the afore-mentioned declaration acknowledged andapproved by the witness. [13] On August 15, 2019, the investigators issued an Addendum to their Final Report and concluded, notwithstanding the review of Dr.Gupta’s submissions, comments and documents, that the outcome of the investigation remained the same. The same day, the ActingDirector, Workplace Management & Wellness of NRCan wrote to Dr.

Gupta’s counsel, accepting the Addendum, as detailed below. [14] On September 16, 2019, Dr. Gupta commenced this Application for judicial review. As part of this Application, Dr. Gupta receivedthe Certified Tribunal Record, which contained, inter alia, the declarations the witnesses’ acknowledged following their interview. III. The Impugned Decision [15] As mentioned above, on August 15, 2019, the Acting Director, Workplace Management & Wellness of NRCan wrote to Dr.Gupta’s counsel. He indicated that, further to the June 3, 2019 email, Dr.

Gupta provided his final comments to the investigator whoconsidered these comments in completing the Addendum to the Final Report. The Acting Director further indicated that, as they werethen in receipt of the Addendum, the employer considered the issues Dr. Gupta had raised in his May 10 letter to be resolved and, giventhe investigators’ conclusion, the employer also considered the matter closed. [16] This August 15, 2019 message from the Acting Director, Workplace Management & Wellness is the decision subject to the presentApplication for judicial review. IV. The Parties’ Arguments [17] Dr.

Gupta submits that his employer breached principles of procedural fairness by rendering a decision based on an investigationthat was not conducted in accordance with the process agreed upon by the parties. He adds that issues of procedural fairness remainreviewable without deference to the decision-maker. The question, he submits, is simply whether a fair and just process was followed,given all circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34-56). [18] Dr.

Gupta adds that the decision itself is subject to review under the reasonableness standard (Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 [Vavilov]).

He submits that the decision is based on unreasonable findings, and argues that (1) theevidence was misconstrued, misinterpreted and not properly considered; (2) the investigation failed to complete its mandate, as theinvestigators failed to clearly determine the extent of the impact of the workplace dispute and whether the Applicant would have beenpromoted "“but for”" the dispute (having concluded that it is impossible to know what the outcome would have been); and (3) hissubmissions were not meaningfully considered, as it is impossible to discern from the Addendum what consideration, if any, either theinvestigators or NRCan afforded his submissions, and as the investigators failed to address certain issues and evidence. [19] The Attorney General of Canada (AGC) agrees that the Court must review the decision under the reasonableness standard.

Inresponse to Dr. Gupta’s arguments, the AGC submits that (1) although the Final Report did not respect

article 8 of the Memorandum ofSettlement, the investigative process subsequently undertaken satisfied both

article 8 of the Memorandum of Settlement and the duty offairness that was owed to Dr. Gupta, and (2) the employer’s decision to accept the investigation report was reasonable. [20] In addition, the AGC submits that the present Application is not properly before the Court, since Dr. Gupta failed to exhaustavailable alternative recourses before applying for judicial review. First, the AGC contends that in this case, the parties had established,through the Memorandum of Settlement, a process to resolve disputes arising out of or in connection with the Memorandum. Hence, asper

article 10 of the Memorandum of Settlement, if the parties were unable to resolve the dispute through negotiation, they could seek toresolve the matter through mediation prior to commencing legal proceedings. Second, if Dr. Gupta was dissatisfied with the alternativeremedy agreed upon in the Memorandum of Settlement, he ought to have exhausted the grievance process under

section 208 of theFederal Public Sector Labour Relations Act (SC 2003, c 22, s 2) [the Labour Relations Act] prior to applying to this Court for a remedy. [21] Dr. Gupta recognises that subsection 208(1) of the Labour Relations Act applies here, and that the grievance procedure is availableto challenge the employer’s August 15, 2019 decision to adopt the investigator’s report. However, he argues that (1) he was no longerbound by articles 9 and 10 of the Memorandum of Settlement because of NRCan’s breach of its

article 8 (Cohnstaedt v University ofRegina (SASK CA) [1994] SJ No 124; Cohnstaedt v University of Regina (SCC), [1995] 3 SCR 451); (2) he is notbound by his renunciation of a statutory recourse as contained in the Memorandum of Settlement; (3) the Labour Relations Act grievanceprocedure cannot address procedural fairness issues, which are strictly within the purview of the Federal Court on judicial review; and(4) since the grievance procedure has not yet been initiated, he could choose to proceed by way of an Application for judicial reviewbefore the Court. V.

Discussion [22] The Court finds this Application for judicial review to be premature, as Dr. Gupta has not exhausted the available alternative

remedies, hence negotiation in good faith as set out in

article 10 of the Memorandum of Settlement and, in any event, the grievanceprocedure set out in subsection 208(1) of the Labour Relations Act. [23] My conclusion does not stem from the parties’ commitment, in the Memorandum of Settlement, not to apply for judicial review.

Itstems from the application of the exhaustion doctrine as summarised by the Federal Court of Appeal in Canada (Border Services Agency)v CB Powell Limited, 2010 FCA 61 [CB Powell] (at paras 30-33): [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in theadministrative process have been exhausted. The importance of this rule in Canadian administrative law is well-demonstrated by the large number of decisions of the Supreme Court of Canada on point: Harelkin v. University ofRegina, (SCC), [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v.

Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3; Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; R. v. ConsolidatedMaybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706 at paragraphs 38-43; Regina Police Association Inc. v.Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14at paragraphs 31 and 34; Danyluk v.Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44at paragraph 14-15, 58 and 74; Goudie v. Ottawa(City), [2003] 1 S.C.R. 141, 2003 SCC 14; Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11at paragraphs 1-2; Okwuobi v. Lester B.

Pearson School Board, [2005] 1 S.C.R. 257, 2005 SCC 16at paragraphs 38-55; Canada (House ofCommons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30at paragraph 96. [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine ofadequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the ruleagainst interlocutory judicial reviews and the objection against premature judicial reviews.

All of these express the sameconcept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process hasrun its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in theongoing administrative process must pursue all effective remedies that are available within that process; only when theadministrative process has finished or when the administrative process affords no effective remedy can they proceed tocourt.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processesuntil after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costsand delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicialreview when the applicant for judicial review may succeed at the end of the administrative process anyway:see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater Moncton International Airport Authority v.

Public ServiceAlliance of Canada, 2008 FCA 68at paragraph 1; Ontario College of Art v. Ontario (Human RightsCommission) (1992), (ON SCDC), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of theadministrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may besuffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., ConsolidatedMaybrun, supra at paragraph 43; Delmas v.

Vancouver Stock Exchange (1994), (BC SC), 119 D.L.R.(4th) 136 (B.C.S.C.), aff’d (1995), (BC CA), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College ofVeterinarians (Ontario) (1991), (ON SC), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach isconsistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, havedecision-making responsibilities to discharge: Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 atparagraph 48. [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processesvigorously.

This is shown by the narrowness of the “exceptional circumstances” exception. Little need be said about thisexception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting earlyrecourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and thethreshold for exceptionality is high: see, generally, D.J.M. Brown and J.M.

Evans, Judicial Review of Administrative Actionin Canada (looseleaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J.Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494. Exceptional circumstances are best illustrated bythe very few modern cases where courts have granted prohibition or injunction against administrative decision-makersbefore or during their proceedings.

Concerns about procedural fairness or bias, the presence of an important legal orconstitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised andan effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v.C.U.E.W, Local 2 (1988), (ON SC), 52 D.L.R. (4th) 128 (Ont. Div. Ct.).

As I shall soon demonstrate, thepresence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts. [24] The Federal Court of Appeal has confirmed the applicability of the exhaustion doctrine in the more recent decisions of Agnaou cCanada (Procureur général), 2019 CAF 264 and Coldwater Indian Band v Canada (Indian Affairs and Northern Development), 2014FCA 277. [25] Of particular relevance to this proceeding, our Court has confirmed the application of the doctrine when the grievance procedure ofthe Labour Relations Act is available, see Nosistel v Canada (Attorney General), 2018 FC 618 [Nosistel] at paras 50 to 53, where issuesof procedural fairness in the investigation of the grievance had been raised.

Dr. Gupta has not substantiated his argument that thegrievance procedure cannot address procedural fairness issues, especially as my colleague’s decision in Nosistel points to the contrary. [26] The Federal Court of Appeal in CB Powell, excerpted above, also specifically confirms that issues of procedural fairness do notqualify as exceptional circumstances allowing a party to be exempted from the exhaustion doctrine. [27] Dr. Gupta has not convinced me that the doctrine of exhaustion does not apply when the statutory grievance procedure, althoughavailable, has not been commenced.

There is no indication that such a set of facts reaches the exceptional circumstances threshold, as

summarised above by the Federal Court of Appeal in CB Powell . On the contrary, the Federal Court of Appeal specifies that the doctrine applies until the available, effective remedies are exhausted. Dr.

Gupta has recognised that the grievance procedure is available, and as per the clear directions from the Supreme Court and the Federal Court of Appeal, it must be exhausted before proceeding before this Court. [ 28 ] Given the teachings of the Federal Court of Appeal on the exhaustion doctrine, and given that both parties recognise that the grievance procedure set out in subsection 208(1) of the Labour Relations Act is available to Dr. Gupta, I find the Application for judicial review to be premature and will dismiss it on that basis. JUDGMENT in T-1507-19 THIS COURT’S JUDGMENT is that: 1.

The Application for judicial review is dismissed; 2. Costs are granted in favour of the Respondent. "Martine St-Louis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1507-19 STYLE OF CAUSE: MUDLIDHAR GUPTA AND THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: TORONTO, ONTARIO (by zoom from montréal) DATE OF HEARING: SEPTEMBER 21, 2020 JUDGMENT AND reasons: st-louis J.

DATED: october 6, 2020 APPEARANCES : Bijon Roy For The Applicant Joel Stelpstra Nour Rashid For The Respondent SOLICITORS OF RECORD : Champ & Associates Ottawa (Ontario) For The Applicant Attorney General of Canada Ottawa (Ontario) For The Respondent