SHIV CHOPRA Applicant v. ATTORNEY GENERAL OF CANADA, 2014 FC 246

Date: 20140325 Dockets: T-2027-11 T-2029-11 T-2033-11 T-2030-11 T-2032-11 Citation: 2014 FC 246 Ottawa , Ontario , March 25, 2014 PRESENT: The Honourable Madam Justice Mactavish Dockets: T-2027-11 T-2029-11 T-2033-11 BETWEEN: SHIV CHOPRA Applicant and ATTORNEY GENERAL OF CANADA Respondent Dockets: T-2030-11 T-2032-11 AND BETWEEN: MARGARET HAYDON Applicant and ATTORNEY GENERAL OF CANADA Respondent PUBLIC REASONS FOR JUDGMENT AND JUDGMENT (Confidential Reasons for Judgment and Judgment released March 13, 2014) TABLE OF CONTENTS PARA . I.

Introduction........................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... 1 II.

Background .......................................................................................................................... ............................................................................................................................................... ............................................................................................................................................... 5

III. Dr. Chopra’s 10-Day Suspension.......................................................................................... 30 A. The Circumstances Giving Rise to the Discipline..................................................... 31 B. The Adjudicator’s Decision....................................................................................... 69 C.

The Issues.................................................................................................................. ................................................................................................................................... 75 D. Analysis..................................................................................................................... 77

(1) Did the Adjudicator Fail to Make a Finding as to Whether Dr. Chopra Knew he was Disobeying a Direct Order?.................................................... 89

(2) Did Health Canada Condone Dr. Chopra’s Absence from the Workplace? ....................................................................................... 109

(3) Was Health Canada Entitled to Discipline Dr. Chopra in Light of his Health and Safety Concerns?...................................................... 116

(4) Did Health Canada Fail to Prove all of the Grounds for Discipline? 122 E. Conclusion................................................................................................................. 129 IV. The “Speaking Out” Grievances............................................................................................ 130 A. The Statements in Issue............................................................................................. 136 B. The Disciplinary Letters............................................................................................ 170 C.

The Adjudicator’s Decision....................................................................................... 178 D. The Issues.................................................................................................................. 185 E. Was the Adjudicator’s Finding on the Issue of Delay Reasonable?......................... 187 F. Conclusion on the “Speaking Out” Grievances......................................................... 220 V. The Termination of Dr. Chopra’s Employment..................................................................... 222 A.

Background............................................................................................................... 224 B. The Adjudicator’s Decision....................................................................................... 247 C. The Issues.................................................................................................................. ................................................................................................................................... 260 D.

Analysis..................................................................................................................... 262

(1) Health Canada’s Similar Treatment of Drs. Chopra, Haydon and Lambert ............................................................................................ 270

(2) Did the Adjudicator Err in Making his Finding of Insubordination? 279

(3) Did the Adjudicator Fail to Consider Relevant Arguments and Evidence?.......................................................................................... 285

(4) Did the Adjudicator Fail to Consider both Grounds for Discharge? 302 E. Conclusion................................................................................................................. 311

VI. The Termination of Dr. Haydon’s Employment.................................................................... 317 A. Background............................................................................................................... 319 B. The Adjudicator’s Decision....................................................................................... 352 C.

The Issues.................................................................................................................. ................................................................................................................................... 364 D. Analysis..................................................................................................................... 366

(1) Health Canada’s Similar Treatment of Drs. Chopra, Haydon and Lambert ........................................................................................... 367

(2) Did the Adjudicator Misstate the Law on Insubordination Resulting in a Flawed Analysis?....................................................... 368

(3) Did the Adjudicator Fail to Address Relevant Arguments and Evidence?.......................................................................................... 377

(4) Did the Adjudicator Fail to Consider all of the Grounds for Discipline?......................................................................................... 393 E. Conclusion................................................................................................................. 401 VII. Final Conclusion ................................................................................................................... 409 VIII.

Costs ................................................................................................................................... ................................................................................................................................... 415 I. Introduction [ 1 ] Following a lengthy hearing, an adjudicator dismissed grievances filed by Dr. Shiv Chopra and Dr. Margaret Haydon with respect to disciplinary measures imposed on them by their employer, Health Canada. These included the suspension of Dr.

Chopra for insubordination and an unauthorized absence from work, the suspensions of both applicants for speaking to the media, and the termination of their employment for insubordination. [ 2 ] Drs. Chopra and Haydon have each brought applications for judicial review with respect to the adjudicator’s decision. Dr. Chopra challenges the dismissal of his grievances relating to 10-day and 20-day suspensions, and the termination of his employment. Dr. Haydon seeks judicial review of the decision dismissing her grievances with respect to a 10-day suspension and the termination of her employment.

Because the facts of these cases are intertwined, these reasons shall apply to all five applications for judicial review. [ 3 ] For the reasons that follow, I have concluded that Dr. Chopra’s application for judicial review of his 10-day suspension for insubordination and for being on unauthorized leave should be dismissed. However, Drs. Chopra and Haydon’s applications for judicial review of their suspension for speaking to the media will be granted. [ 4 ] I have further concluded that the findings of insubordination giving rise to the termination of Drs. Chopra and Haydon’s employment were reasonable.

However, the appropriateness of termination as a sanction for that misconduct will have to be re- determined in Dr. Haydon’s case because of the Adjudicator’s erroneous reliance on stale discipline in upholding the penalty. The appropriateness of termination as a sanction in both cases may also have to be revisited in the event that Dr. Chopra and Dr. Haydon are ultimately successful in challenging their suspensions for speaking to the media. II. Background [ 5 ] The following review is intended to provide a general context for these applications.

A more detailed review of the facts giving rise to each of the applications will be provided further on in these reasons, as each application for judicial review is addressed.

[ 6 ] Dr. Chopra began working as a drug evaluator for what was then called the Bureau of Veterinary Drugs (BVD) at Health Canada in 1987. The BVD is now known as the Veterinary Drug Directorate (VDD). At the time of the events at issue in these proceedings, Dr. Chopra worked in the Human Safety Division (HSD) of the VDD. Dr. Haydon began working as a drug evaluator for Health Canada in 1983.

At the material time she worked in the Clinical Evaluation Division (CED) of the VDD. [ 7 ] “Veterinary drugs” are substances which are used to prevent and treat disease in animals, to promote growth, control reproduction, or provide humane means of restraint and relief of pain in animals. [ 8 ] Health Canada is the regulatory authority responsible for approving new veterinary drugs and new uses of existing approved drugs in accordance with the provisions of the Food and Drugs Act , R.S.C., 1985, c. F-27.

Amongst other things, Health Canada’s mandate is to protect the health and safety of Canadians in accordance with the applicable legislation. [ 9 ] Drug evaluators are responsible for making scientific assessments and recommendations as to the safety and efficacy of pharmaceutical products for use in animals and fish. They are also required to examine whether new veterinary drugs may have adverse effects on human health, and to ensure that new drugs comply with the human safety requirements of the Food and Drugs Act and Regulations. [ 10 ] Drug evaluators do not themselves approve or reject New Drug Submissions.

Once they have reviewed the relevant data, they make a recommendation as to whether or not a veterinary drug should be approved for sale in Canada. The decision to approve or reject a new drug submission is ultimately made by a delegate of the Minister of Health. [ 11 ] Once a veterinary drug is approved for use by Health Canada, a Notice of Compliance (“NOC”) is issued to the manufacturer. This permits the marketing of the product in Canada in accordance with the terms of the approval. [ 12 ] Over the years, a number of issues arose between Drs. Chopra and Haydon and Health Canada.

Amongst other things, by the late 1990s, the applicants (and some of their colleagues) had become concerned that problems with the drug review process were potentially having a negative impact on the health and safety of Canadians. [ 13 ] In particular, the applicants believed that drug evaluators were being pressured to approve drugs of questionable safety. Drs. Chopra and Haydon were particularly concerned about the use of growth hormones and antibiotics in animals intended for human consumption, given the potential impact of these drugs on human health and safety.

In the case of antibiotics, the applicants were concerned that their non-therapeutic use in animals was contributing to the development of antimicrobial resistance (or “AMR”) which poses a risk to human health. AMR develops when strains of pathogenic microbes become increasingly resistant to antibiotics over time, making infections more difficult and potentially impossible to treat. [ 14 ] Drs. Chopra and Haydon endeavoured to have their concerns addressed internally through various means.

These included raising the matter with their Union, filing several grievances, and writing to the Health Minister requesting his intervention in the matter. [ 15 ] Dr. Chopra also filed a grievance against “Health Canada Management” in 1997 alleging “persistent and repeat harassment”. He asserted, among other things, that he had been subject to coercion to approve drug products of questionable safety, and that he had been denied access to required regulatory information to allow him to perform his job. Dr.

Chopra further alleged that he had been subject to direct and implied threats of discipline, and that he had been defamed. [ 16 ] However, the applicants were not satisfied with the results of these efforts, believing that their employer had failed to properly address their concerns. [ 17 ] The applicants also requested an external investigation of the drug approvals process in Canada, and voiced their concerns outside of Health Canada. Amongst other things, the applicants wrote a letter to the Prime Minister requesting his assistance in the matter.

They also initiated proceedings before the Public Service Staff Relations Board under the Public Service Staff Relations Act , S.C. 2003, c. 22, s. 2 , and participated in hearings before the Standing Senate Committee on Agriculture and Forestry.

[18] Drs. Chopra and Haydon also spoke to the media on a number of occasions with respect to these and other concerns. Thesepublic statements led to disciplinary action being taken against them by their employer which ultimately resulted in this Court’s decisionin Haydon v. Canada, (FC), [2001] 2 F.C. 82, 192 F.T.R. 161(T.D.) (Haydon #1), Chopra v. Canada (TreasuryBoard) [2005] F.C.J. No. 1189, aff’d 2006 FCA 295 (Chopra #1), and Haydon v. Canada (Treasury Board), 2004 FC 749 ,[2004] F.C.J. No. 932, aff’d 2005 FCA 249, [2006] 2 F.C.R. 3 (Haydon #2). [19] Drs.

Chopra and Haydon were successful in challenging the disciplinary action taken against them in Haydon #1. JusticeTremblay-Lamer found that the applicants’ statements with respect to their concerns regarding the approval of growth hormones andantibiotics and their view that drug evaluators were being pressured to approve drugs of questionable safety amounted to the disclosureof policies that jeopardized life, health or safety of the public. As a consequence, the statements came within one of the exceptions to theduty of loyalty recognized by the Supreme Court of Canada in Fraser v.

Public Service Staff Relations Board, (SCC),[1985] 2 S.C.R. 455, [1985] S.C.J. No. 71. [20] The applicants were, however, unsuccessful in having the disciplinary measures against them set aside in Haydon #2 andChopra #1. [21] In Chopra #1, this Court concluded that it was reasonable for an adjudicator to find that Dr. Chopra breached his duty ofloyalty by publicly criticizing a decision by Health Canada to stockpile drugs, including ciprofloxacin, in response to the anthrax scare inthe wake of the 9/11 attacks on New York and Washington, and by attributing inappropriate motives to his employer.

The Courtconcluded that these remarks could not be justified as coming within a Fraser exception to the duty of loyalty. [22] In Haydon #2, public comments by Dr. Haydon relating to the allegedly political nature of a ban on Brazilian beef in the wakeof concerns regarding bovine spongiform encephalopathy (or BSE, commonly known as “mad cow disease”), were found to relate to atrade dispute rather than a question of public health and safety.

As a consequence, the comments were found not to come within a Fraserexception to the duty of loyalty. [23] In the wake of all of this, it is hardly surprising that by the early 2000s, there was significant inter-personal conflict betweenDrs. Chopra and Haydon and some of their co-workers and supervisors at Health Canada. This led to 16 of the applicants’ co-workersbringing a harassment complaint against Drs. Chopra and Haydon in December of 2002. Also named as respondents to the complaintwere Dr. Gérard Lambert (a co-worker who shared the applicants’ views) and a fourth scientist.

The harassment complaint alleged that asa result of the attention brought on by the applicants’ comments in the media, the complainants’ workloads increased, they did not wishto “[b]e distracted or dragged into this imbroglio,” and that the media reports put their “[j]obs and professional integrity to disrepute.”:Adjudicator’s decision at para. 62. [24] A second complaint was filed against Dr. Chopra by the same co-workers in April of 2003 as a result of comments that he hadmade to the media regarding official bilingualism. [25] An independent investigation into the complaints against Drs.

Chopra and Haydon concluded that there had been noharassment. The 2004 investigation report (the Chodos Report) was, however, very critical of the applicants’ behaviour, noting that “[i]tmay well be argued that by contributing to a climate of hostility and suspicion in their workplace [Drs. Chopra and Haydon] have in factharmed the public interest, rather than promoting it”: Adjudicator’s decision at para. 68. [26] The Chodos Report further found that Drs. Chopra and Haydon “have to take some responsibility for the climate of suspicionand distrust that has permeated the Directorate for a number of years ...

These suspicions, whether warranted or not, undermine the spiritof collegiality that is necessary in order for VDD scientists to work cooperatively to fulfill their mandate under the Food and Drugs Act”:Adjudicator’s decision at para. 62. [27] In 2003, the applicants and Dr.

Lambert filed their own harassment complaint in which they alleged that “they had beensubjected to ‘... intense political influence, pressure and harassment by Health Canada management to pass or maintain a variety of drugsof questionable safety to favour the political lobbying of certain special interest groups and to the detriment of the public interest’”:Adjudicator’s decision at para. 61. They identified unfair performance appraisals as one method of reprisal taken against them by theiremployer for making their views known.

[ 28 ] These events resulted in what the Chodos Report called a “climate of hostility and suspicion at the workplace” and what the Adjudicator called an “unpleasant” workplace. I do not understand either side to take issue with this characterization of the atmosphere within the VDD at this time, although each blames the other side for creating this toxic environment. [ 29 ] With this overview of the background to the events at issue , I turn now to examine Dr. Chopra’s application for judicial review with respect to his 10-day suspension. III. Dr. Chopra’s 10-Day Suspension [ 30 ] On May 30, 2003, Dr.

Chopra was suspended for 10 days for insubordination and for being on unauthorized leave. The adjudicator concluded that Health Canada had just cause to impose discipline on Dr. Chopra, and that the 10-day suspension was appropriate in the circumstances. As a consequence, he dismissed Dr. Chopra’s grievance. A. The Circumstances Giving Rise to the Discipline [ 31 ] During the time in question, Health Canada had a Flexible Work Arrangements Guide which allowed employees to work from home with the agreement of the Department, and at the discretion of management. In accordance with this policy , Dr.

Chopra worked from his home under a succession of telework agreements f rom 1997 until 2002. [ 32 ] On October 25, 2002, Dr. Chopra signed what would be the final extension to his telework agreement extending the arrangement until December 31, 2002. This extension agreement provided that: a. The telework arrangement was to be for a 4 month period commencing on September 1, 2002; b. Subject to satisfactory performance on the part of Dr. Chopra, the agreement could be extended for a further four month period; c. Dr.

Chopra acknowledged that “tele-working is a privilege & not a right & that the continuation of the arrangement if accepted is based on [his] productivity & performance.” d. Telework is voluntary and may be terminated by either party with reasonable notice. [ 33 ] On January 30, 2003, a meeting was held between Dr. Chopra, his Team Leader, Dr. Mehrotra, and the Director of the Human Safety Division at the VDD, Dr. Vasu Dev Sharma. The purpose of this meeting was to discuss Dr. Chopra’s performance. [ 34 ] Deficiencies in Dr.

Chopra’s performance were identified by his managers in the course of this meeting, specifically in relation to his level of productivity and his alleged lack of interest in the work assigned to him. [ 35 ] At the end of the meeting, Dr. Sharma advised Dr. Chopra that because of his poor performance, his telework agreement was not going to be renewed. Dr. Chopra does not agree with the assessment of his performance and he asserts that he had no opportunity to address the employer’s concerns before the decision was made to cancel his telework arrangement. [ 36 ] However, the cancellation of Dr.

Chopra’s telework agreement, the validity of his January 2003 performance appraisal, and the merits of the grievance that followed are not at issue in this proceeding, with the result that I make no finding in this regard. I have, however, had regard to Dr. Chopra’s views of these matters as forming part of the context for the events that followed. [ 37 ] The cancellation of Dr. Chopra’s telework agreement was confirmed by an email from Dr. Mehrotra to Dr. Chopra on January 31, 2003. T his email instructed Dr. Chopra to report for work at the Holland Cross offices of the VDD on February 3, 2003. Dr.

Chopra was further advised that he was expected to be “on location” between the hours of 7:00 am and 9:00 am, and to remain at work for the duration of the standard 7.5 hour working day from Monday to Friday of each week. Dr. Chopra reported to work on February 3, 2003, as instructed.

[ 38 ] Because the sequence of events between Dr. Chopra’s return to work and his suspension for insubordination are in issue, it is important to review those events in some detail. In particular, regard must be had to these events in light of Dr. Chopra’s contention that the Adjudicator erred in failing to explicitly find that he intended to be insubordinate and his claim that, as a result of the ongoing discussions between himself and his employer, Health Canada condoned his continued absence from the workplace. [ 39 ] Dr. Chopra testified that he had an interaction with Dr.

Aspi Maneckjee on his first day back at work which caused him to leave the workplace. Dr. Maneckjee was one of the 16 complainants in the harassment complaint against Drs. Chopra and Haydon. [ 40 ] Dr. Maneckjee had previously sent Dr. Chopra an email in which he referred to comments made in the media by Dr. Chopra, asking him not to “make general statements when you have no definite proof, as you are hurting people (me).” Dr. Chopra responded that the accusation was “completely baseless and false”, stating that he did not wish to have any further discussion about the matter. [ 41 ] According to Dr. Chopra, Dr.

Maneckjee spoke to Dr. Chopra in the staff lunchroom on February 3, 2003. According to an email sent by Dr. Chopra to his union representative later that day, Dr. Maneckjee said “Shiv, you don't talk to me”. When Dr. Chopra did not respond, Dr. Maneckjee repeated, “Shiv, you don't talk to me”, to which Dr. Chopra replied “Do I need to?” [ 42 ] Dr. Maneckjee then allegedly responded in a patronizing tone stating “You must always talk to people.” Dr. Chopra replied that “because you have filed a harassment complaint against me I do not wish to talk to you”. Dr.

Chopra says that he “quickly cut the conversation short and requested him not to talk to me any further”. At this point Dr. Maneckjee left the room. [ 43 ] Dr. Chopra testified at the hearing before the Adjudicator that this incident caused him to have serious concerns for his personal safety and security. Not only was he concerned that his co-workers could become “more aggressive” with him, he says that he was also concerned about how he was going to react to them. [ 44 ] Dr.

Chopra describes this as an incident of “workplace violence” or “threat” in his memorandum of fact and law, and he testified that “this is the incident that is now the ultimate of that aggression coming from that side. I cannot predict whether he’s going to hit me and - or hurt me but he’s told me that I’m hurting him”. It is interesting to note, however, that Dr. Chopra’s description of the event in his contemporaneous email to his union representative is far less dramatic, and there is no suggestion in that email that Dr. Chopra felt threatened in any way. [ 45 ] Dr.

Chopra testified that he returned to his desk after the incident with Dr. Maneckjee and called his doctor. He then left the workplace to see the doctor. Dr. Chopra did not advise anyone of his departure, nor did he report the incident to his supervisors at this time. [ 46 ] Dr. Chopra described his discussion with his doctor on the afternoon of February 3, 2003, noting that the doctor told him that he “was not sick”, nor was he “psychiatrically ill”. It appears from Dr.

Chopra’s description of the appointment that he wanted the doctor to document that he had reported a problem at work, and to have the doctor refer him to a psychologist. [ 47 ] Dr. Chopra called the HSD secretary the following day, advising her that he was ill and would not be coming to the office. He did not contact either Dr. Mehrotra or Dr. Sharma. He spoke to the secretary again on February 7, 2003, stating that he was still unwell and that he would be seeing his doctor again. [ 48 ] On February 10, 2003, Dr. Mehrotra emailed Dr.

Chopra acknowledging that he had been away from work on account of illness and enquiring as to his current status and when he expected to return to work. Dr. Chopra responded that he had seen his doctor and that he would let Dr. Mehrotra know when he was well enough to return to work. [ 49 ] Dr. Chopra’s supervisors heard nothing further from Dr. Chopra. As a result, Dr.

Mehrotra emailed him again on March 5, 2003 stating “[i]n order to consider your request for sick leave with pay, I would request that you provide me with a certificate from your doctor which also indicates the expected date of return to duty.” Dr. Chopra was asked to provide the medical certificate by March 12, 2003.

[ 50 ] Dr. Chopra responded to Dr. Mehrotra’s email on March 12, 2003, stating that he would not be providing the requested medical certificate. Instead Dr. Chopra asked Dr. Mehrotra to contact his legal counsel, David Yazbeck. [ 51 ] In the meantime, Mr. Yazbeck had been in communication with the Deputy Minister of Health, expressing concerns with respect to Drs. Chopra and Haydon and two co-workers. Mr. Yazbeck identified matters that he said represented a “... clear attempt by Health Canada management” to deliberately target four scientists, including Drs.

Chopra and Haydon, to dissuade them from expressing their views. Mr. Yazbeck identified the negative performance appraisals for the four scientists, the cancellation of Dr. Chopra's telework arrangement, and the harassment complaint filed against the four by their colleagues as retaliatory measures. [ 52 ] Mr. Yazbeck further stated in his letter to the Deputy Minister that he did not understand why Dr. Chopra “... would be compelled to return to work,” given the harassment complaint and the hostile attitude of his colleagues. Mr.

Yazbeck urged the Deputy Minister to direct managers to “restore the status quo” until these issues could be addressed. At a minimum, Mr. Yazbeck asked that Dr. Chopra’s telework arrangement be restored and that the performance appraisals for all four scientists be rescinded. [ 53 ] At the same time, Mr. Yazbeck was in communication with the Assistant Deputy Minister with respect to the harassment complaint against the four scientists. There was also communication between Dr. V. Sharma and Dr. Chopra with respect to the finalization of Dr. Chopra’s performance appraisal in which Dr. Sharma noted that despite Dr.

Chopra’s views as to the validity of the appraisal, he should nevertheless be aware that he was “... required to undertake and complete work that has been assigned to [him].” [ 54 ] Grievances were subsequently filed by Dr. Chopra with respect to both his performance appraisal and the cancellation of his telework agreement. In response to further correspondence from Mr. Yazbeck asking whether she intended to address his concerns with respect to the cancellation of Dr.

Chopra’s telework arrangement, the Assistant Deputy Minister noted that these matters were the subject of grievances and that his concerns would be addressed through the grievance process. [ 55 ] There were also discussions between the parties with respect to Dr. Chopra’s ongoing failure to produce a medical certificate to justify his absence from work. On March 18, 2003, Dr. Mehrotra repeated her request for a medical certificate, asking that it be provided by March 25, 2003. She advised Dr.

Chopra that failing to provide the certificate would lead her to conclude that he was on unauthorized leave, which could result in disciplinary action. [ 56 ] Dr. Chopra did not want to provide the certificate to Dr. Mehrotra, as she was one of the complainants in the harassment complaint against him and he believed that it would only be used against him. He advised Dr. Mehrotra that her request for a medical certificate was contrary to the harassment policy, referring her to Mr. Yazbeck. Dr. Chopra also advised Dr.

Mehrotra that he would continue to work as best he could on the drug evaluation assigned to him. [ 57 ] Ms. Diane Kirkpatrick was the Director General of the VDD at this time. She wrote to Mr. Yazbeck on March 27, 2003, regarding the separation of the complainants from the respondents to the harassment complaint. She advised that, as of March 31, 2003, Dr. Chopra’s office would be moved to an alternate location within the same office complex. [ 58 ] There was further correspondence regarding these arrangements, with Ms. Kirkpatrick reiterating that, in the meantime, Dr.

Chopra was expected to report for work at his current work location. [ 59 ] On March 28, 2003, Ms. Kirkpatrick emailed Dr. Chopra, setting up a meeting for April 4, 2003 to discuss his absence from the workplace. In addition to the issue of the missing medical certificate, Ms. Kirkpatrick indicated that she wished to discuss Dr. Chopra’s comment that he was continuing to work from home, given that his telework arrangement had been discontinued. [ 60 ] Ms. Kirkpatrick, Dr. V. Sharma, Dr. Chopra, Mr. Yazbeck and a human resources advisor attended the April 4, 2003 meeting. For the first time, Dr.

Chopra told his employer about his February 3, 2003 encounter with Dr. Maneckjee. While he asserted that he had a health and safety concern, Dr. Chopra did not provide his employer with any details about the incident. [ 61 ] Ms. Kirkpatrick told Dr. Chopra that he could provide his medical certificate to Dr. Sharma or to her. She also noted Dr. Chopra’s comment that he was working from home, asking him when he expected return to work from sick leave. Dr. Chopra

advised Ms. Kirkpatrick that he still considered himself to be on telework. Ms. Kirkpatrick once again reminded Dr. Chopra that his telework arrangement was over, and that he was expected to work at the VDD site. [ 62 ] An April 9, 2003 follow-up letter from the Assistant Deputy Minister reiterated the request for an expected return to work date, and again reminded Dr. Chopra that unless he was on authorized leave, he was “required to perform his duties at his designated workplace”. [ 63 ] On April 17, 2003, Dr. Chopra provided Ms.

Kirkpatrick with a medical certificate for his absence from the workplace from February 4, 2003 to March 15, 2003. The certificate was provided through Mr. Yazbeck, who wrote in a covering letter that “the decision to order Dr. Chopra” to perform his duties at a location other than his home constituted further harassment against him. While Ms. Kirkpatrick had some concerns about the legitimacy of Dr.

Chopra’s illness, she accepted the certificate and approved his sick leave for the period ending March 15, 2003. [ 64 ] There was further correspondence between the parties which included a discussion about the relocation of Dr. Chopra’s office. On May 12, 2003, Mr. Yazbeck wrote to Ms. Kirkpatrick again raising concerns with respect to “the decision to require [Dr. Chopra] to work in another workplace”, which he advised was viewed as a further incident of harassment. Mr. Yazbeck’s letter closed by informing Ms. Kirkpatrick that unless his client’s various concerns were addressed, Dr.

Chopra would continue to work from home, absent a specific direction that Dr. Chopra move to his new office location. [ 65 ] Mr. Yazbeck continued to raise concerns with respect to the cancellation of Dr. Chopra’s telework arrangement, leading the Assistant Deputy Minister to advise Mr. Yazbeck on April 30, 2003 that the decision to cancel the telework agreement “was taken at the appropriate level of delegation within the Department”. [ 66 ] Throughout this period, and despite the fact that Dr. Chopra was not on sick leave after March 15, 2003, he still did not return to the workplace. [ 67 ] On May 30, 2003, Ms.

Kirkpatrick wrote to Dr. Chopra imposing the 10-day suspension that underlies this application for judicial review. She also indicated that action would be taken to recover Dr. Chopra’s salary for the period when he had been absent from work. Ms. Kirkpatrick’s letter reads, in part: I conclude that you have been on unauthorized leave from the workplace since March 16, 2003. As a result, action will now be taken to recover salary from your pay account from March 16, 2003, until you report to duty at your designated workplace.

Furthermore, your continued unauthorized absence from the workplace, your insistence that you remain on telework contrary to repeated management instructions, your failure to provide in a timely manner, notwithstanding repeated requests, a medical certificate or any other justification for your absence and your failure to provide in a timely manner, again despite repeated requests, any information relating to your allegation with respect to safety and security, constitutes, in my view, insubordination and unacceptable conduct on your part.

Accordingly, I am left with no alternative but to suspend you from work without pay for a period of ten days. You will be notified of the specific dates as to when this suspension will be served. You are required to report for duty immediately. Failure to report to work could lead to further disciplinary action up to and including termination of employment. [ 68 ] Following receipt of this letter, Dr. Chopra returned to work, as instructed, on June 3, 2003. B. The Adjudicator’s Decision [ 69 ] An adjudicator was appointed under the provisions of the Public Service Staff Relations Act to deal with Drs.

Chopra and Haydon’s grievances.

[ 70 ] After reviewing the various interactions between Dr. Chopra, Mr. Yazbeck and Health Canada, the Adjudicator made a number of findings with respect to Dr. Chopra’s absence from work between February 3 and May 30, 2003. [ 71 ] The Adjudicator was prepared to give Dr. Chopra the benefit of the doubt with respect to his explanation for refusing to provide a medical certificate until April of 2003. However, the Adjudicator also found that Dr.

Chopra’s concerns about workplace violence and harassment did not result in a “retrospective exception to the ‘obey now, grieve later’ principle” and were not sufficient to justify him acting in the way he did. [ 72 ] In particular, the Adjudicator found that Dr. Chopra had insisted on working from home despite the non-renewal of his telework agreement and his employer’s clear instructions that he was to report for duty at his designated work location. [ 73 ] The Adjudicator further found that Dr.

Chopra had no legitimate excuse for disobeying the order to return to the workplace, that his absence from work after March 15, 2003 was unauthorized, and that he had engaged in unacceptable conduct constituting insubordination. As a consequence, Health Canada had just cause to impose discipline and the ten-day suspension was reasonable in light of Dr. Chopra’s past disciplinary record. [ 74 ] Finally, the Adjudicator concluded that based on the principle of “no work, no pay”, the recovery of salary for the period when Dr.

Chopra was absent from the workplace was an administrative action and not a disciplinary one. Dr. Chopra has not challenged this aspect of the Adjudicator’s decision. C. The Issues [ 75 ] The global issue raised by this application is whether the Adjudicator’s decision to uphold the 10-day suspension was reasonable. Dr. Chopra argues that it was not as the Adjudicator failed to address crucial issues, and the evidence in the record did not establish all of the necessary elements to support a finding of insubordination. [ 76 ] In support of this contention, Dr.

Chopra identifies four questions that he says the Adjudicator failed to address. These are: a. Whether Dr. Chopra knew he was disobeying a clear and direct order; b. Whether Health Canada condoned Dr. Chopra’s absence from the workplace, given its failure to insist that he return to work at an earlier point in time; c. Whether Health Canada was entitled to discipline Dr. Chopra in circumstances where he genuinely feared for his health and safety; and d. Whether the employer proved all the allegations relied upon to support the discipline in question. D.

Analysis [ 77 ] The parties agree that the standard of review to be applied to the Adjudicator’s decision is that of reasonableness. I agree.

Although the application does raise questions of mixed fact and law, the resolution of these questions largely depends upon the Adjudicator’s appreciation of the facts. [ 78 ] In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , at para. 47 . [ 79 ] R easonableness is a deferential standard.

It recognizes that there may not be a single correct answer to issues in dispute and further recognizes that Parliament assigns primary decision-making responsibility to specialist tribunals because of their particular expertise in the subject area. As a consequence, reasonableness review requires an attitude of respect for the decisions of specialist administrative tribunals by reviewing courts: Dunsmuir , at para. 48 . [ 80 ] T his is particularly true in the labour arbitration context . Indeed, as the Federal Court of Appeal observed in Tobin v. Canada (Attorney General) , 2009 FCA 254 , [2009] F.C.J.

No. 968 , an adjudicator appointed under the Public Service Staff Relations Act is “not

simply an expert in labour relations but an expert in public service labour relations”: at para. 40. [ 81 ] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 , the Supreme Court provided further clarification as to the scope of reasonableness review. The Court observed that inadequacies in an administrative tribunal’s reasons will not necessarily render the tribunal’s decision unreasonable.

Reviewing courts may still uphold a tribunal decision if it falls within the Dunsmuir range of possible, acceptable outcomes which are defensible in light of the facts and the law: at paragraph 14. [ 82 ] Importantly for our purposes, the Court was very clear in Newfoundland Nurses that administrative tribunals need not address every issue and every argument raised by the parties, nor is it required to make an explicit finding on each element, however subordinate it may be, leading to its final conclusion.

The failure of a tribunal to do so will “not impugn the validity of either the reasons or the result under a reasonableness analysis”: at para. 16 . See also Construction Labour Relations v.

Driver Iron Inc. , 2012 SCC 65 , [2012] 3 S.C.R. 405 , at para. 3 , where the Supreme Court of Canada noted that the task for the reviewing court is to consider whether “the decision, viewed as a whole in the context of the record, is reasonable.” [ 83 ] While a reviewing Court may not substitute its own reasons for those of the administrative decision-maker, the Court may have regard to the reasons offered by the administrative tribunal and to the record in order to assess the reasonableness of the decision under review: Newfoundland Nurses at para. 15.

It is sufficient if the administrative decision-maker’s reasons “ allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”: Newfoundland Nurses at para. 16. [ 84 ] It is not the function of a reviewing court to reweigh the evidence.

There is, moreover, a presumption that a decision-maker has considered the entirety of the record. [ 85 ] These admonitions as to the deference owed to administrative decision-makers are particularly apposite here, in light of the monumental task that faced the Adjudicator in this case. Indeed, before turning to assess whether the Adjudicator’s decision in this case was reasonable, it is important to have an understanding of the task that faced the Adjudicator in relation to the various grievances brought by Drs.

Chopra and Haydon. [ 86 ] The Adjudicator was in fact dealing with eight grievances: the three filed by Dr. Chopra, Dr. Haydon’s two grievances, and three others filed by Dr. Lambert. Dr. Lambert was partially successful before the Adjudicator and the parties have since resolved their differences with the result that Dr. Lambert is no longer a party to these proceedings. [ 87 ] The hearing of the grievances extended over some 4 1/2 years. There were over 150 hearing days, during which time the Adjudicator heard from 11 witnesses.

The record is some 20,000 pages in length, and voluminous evidence was adduced with respect to the issues that divided the parties. In addition to testimony regarding the events in issue, complex and technical scientific evidence was also put before the Adjudicator, and both sides filed lengthy and detailed written submissions. The process culminated in a 208-page decision by the Adjudicator. [ 88 ] As counsel for the respondent observed at the hearing of these applications, if ever there was a case that cried out for judicial deference, this is it.

(1) Did the Adjudicator Fail to Make a Finding as to Whether Dr. Chopra Knew he was Disobeying a Direct Order ? [ 89 ] Dr. Chopra contends that the decision dismissing his grievance is unreasonable because the Adjudicator failed to explicitly address whether he had the necessary subjective intent to be insubordinate. [ 90 ] While acknowledging that his telework agreement had been cancelled and that he had been given a clear and unequivocal order to report to Health Canada’s Holland Cross offices on February 3, 2003, Dr. Chopra notes that he did so.

He left the office later that day as a result of his confrontation with Dr. Maneckjee, and was on certified sick leave until March 15, 2003. [ 91 ] Dr. Chopra’s counsel continued to interact with Health Canada representatives regarding the legitimacy of his performance appraisal, the cancellation of his telework arrangement, his allegations of harassment, his health and safety concerns, and the alleged

failure of his employer to address the issues that he had identified. [92] According to Dr. Chopra, the parties were actively engaged in discussions as to the terms and conditions under which hewould return to work, and it was understood throughout this period that Dr. Chopra would remain at home. Dr. Chopra submits that “thevery nature of the discussion among the parties assumed that he would not yet return to work”. [93] Dr.

Chopra further asserts that a fair reading of the correspondence between the parties between February and May of 2003reveals that the employer was no longer insisting on his immediate return to duty at the VDD’s Holland Cross offices. Indeed,Dr. Chopra contends that at no time between February 3 and May 30, 2003 did Health Canada issue a direct order for him to report towork at the VDD’s Holland Cross offices. When he received such a direct order in Ms. Kirkpatrick’s May 30 letter, he complied. [94] According to Dr.

Chopra, it was not enough for his employer to merely refer to its “expectation” that he report to work at hisoffice, as Ms. Kirkpatrick did at the April 4, 2003 meeting. Rather, he says that employer expectations must be explicitly framed as adirect order, and employees must be specifically advised that non-compliance with the order may result in disciplinary consequencesbefore a finding of insubordination can be made. [95] Dr. Chopra argues that insubordination requires the intentional and purposeful defiance of a clear order, citing authorities suchas Donald J.M. Brown and David M.

Beatty, Canadian Labour Arbitration, 4th ed. (Toronto: Thomson Reuters Canada Ltd, 2012), atpara. 7:3612; National Harbours Board, Vancouver v. Vancouver Harbour Employees Association, Local 517, I.L.W.U. (1974), (BC LA), 6 L.A.C. (2d) 5 B.C.C.A.A.A. No. 6 (Monroe), at para. 36; Re Hunter Rose Co. Ltd. And Graphic ArtsInternational Union, Local 28-B, (ON LA), 27 L.A.C. (2d) 338, [1980] O.L.A.A. No. 92. [96] Dr.

Chopra further contends that arbitral jurisprudence has long-established that in insubordination cases “the true basis of theimposition of disciplinary penalties is not simply the objective facts of unjustified conduct but also the employee’s awareness that he isdoing something improper.” Stancor Central Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2-500 (Collective AgreementGrievance), (ON LA), 22 L.A.C. 184 at para. 4, [1970] O.L.A.A. No. 2 (Weiler).

In other words, a grievor’ssubjective understanding is a relevant consideration in assessing the clarity of the order and the appropriateness of the penalty imposed. [97] I am prepared to accept that there can be a subjective component to insubordination. While an employer order might beperfectly clear when viewed from an objective perspective, surely insubordination would not be established if it could be demonstratedthat a hearing impairment or language barrier prevented the employee from properly understanding what he or she was being asked todo?

In such a case, the failure of the employee to comply with the employer’s instructions could be excused on the basis that theemployee lacked the intent to defy their employer. This is not, however, such a case. [98] The Adjudicator understood that the onus was on Health Canada to justify the discipline imposed on Dr. Chopra. He foundthat the order directing Dr. Chopra to return to work at the VDD’s Holland Cross offices was clear, and the fact that he showed up atwork on February 3, 2003 demonstrated that Dr.

Chopra understood the order to return to work: the Adjudicator’s decision at para. 177. [99] The Adjudicator went through a painstaking review of the events that transpired between February 3 and May 30, 2003,concluding that there had been no “waiver” by Health Canada, and that once an employer has given a clear order, it is not required torepeat the order just because the employee does not agree or comply with it: the Adjudicator’s decision at para. 178. [100] It is, moreover, evident from the record that Health Canada did in fact repeat the order for Dr.

Chopra to return to work at hisdesignated workplace on several occasions throughout this period. [101] In her March, 2003 correspondence, Ms. Kirkpatrick was clear that Dr. Chopra was expected to report for work at his HollandCross office. At the April 4 meeting, Ms. Kirkpatrick once again confirmed to Dr. Chopra that his telework arrangement was over, andthat he was expected to report to work at the VDD site. The April 9, 2003 follow-up letter from the Assistant Deputy Minister once againreminded Dr.

Chopra that unless he was on authorized leave, he was “required to perform his duties at his designated workplace” [myemphasis]. [102] Dr. Chopra says that he continued to work at home throughout the majority of this period, and the Adjudicator was required toconsider his subjective understanding of the events in order to ascertain whether he was being insubordinate. The failure of the

Adjudicator to do so renders the decision unreasonable. [ 103 ] It should be noted at the outset that the Adjudicator had ample opportunity to assess the parties’ competing versions of events including the correspondence that they exchanged, their

interpretation of those events, and their attitude towards what was transpiring in the spring of 2003. The Adjudicator also heard Dr. Chopra’s testimony with respect to the incident with Dr. Maneckjee, and the parties’ descriptions of what went on at the April 4 meeting. [ 104 ] In light of Dr.

Chopra’s contention that the ongoing discussions between his counsel and the employer regarding the “nature and timing” of his return to work is “uncontradicted evidence” of his understanding that he was under no direct order to return to work, it was reasonable for the Adjudicator to look to the record in order to ascertain the parties’ intentions. [ 105 ] Contrary to Dr. Chopra’s submissions, the record does not show that it was understood by the parties throughout the period after March 15, 2003 that Dr. Chopra would continue to work at home. What the record does show was that Dr.

Chopra did not agree with his performance appraisal or the cancellation of his telework arrangement, and that he was not going to return to work until such time as these and other issues were addressed to his satisfaction. [ 106 ] Indeed, it is noteworthy that Mr. Yazbeck’s March 20, 2003 letter to the Assistant Deputy Minister observed that Dr. Chopra had “requested that the decision to return him to the Health Canada workplace be rescinded”, clearly recognizing that the original order remained in effect. Similarly, Mr. Yazbeck’s April 17, 2003, letter to Ms. Kirkpatrick acknowledges “the decision to order Dr.

Chopra” to perform his duties at a location other than his home, and his May 12, 2003, letter recognizes that a decision had been made “ to require [Dr. Chopra] to work in another workplace” [my emphasis]. [ 107 ] It is apparent that the Adjudicator understood Dr. Chopra’s argument: see paras. 135-157 of the decision. He nevertheless found as a fact that Dr. Chopra’s employer had issued a clear order for him to report to work at the Holland Cross location, that this order was understood by Dr. Chopra, that the order had never been rescinded, and that Dr. Chopra refused to comply with it.

Implicit in this is the finding that Dr. Chopra was intentionally insubordinate. [ 108 ] Such a conclusion is amply supported by the record and is well within the Dunsmuir range of possible acceptable outcomes which are defensible in light of the facts and the law .

(2) Did Health Canada Condone Dr. Chopra’s Absence from the Workplace? [ 109 ] I will have more to say with respect to the issue of condonation when I deal with the next two applications for judicial review. Briefly stated, the principle of condonation requires an employer to decide whether or not to discipline an employee when it becomes aware of undesirable employee behaviour.

The failure of the employer to do so in a timely manner can constitute condonation of the employee misconduct. [ 110 ] That is, a long delay in imposing discipline may entitle an employee to assume that their conduct has been condoned by their employer where no other warning or notice is given. Once behaviour has been condoned, the employer may not then rely on that same conduct to justify discipline. Allowing employees to believe that their behaviour has been tolerated, thereby lulling them into a false sense of security, only to punish them later is unfair to employees: McIntyre v. Hockin , [1889] O.J.

No. 36 (C.A.) , at paras. 13 and 16 , Miller v. Treasury Board (Department of National Defence) , [1983] C.P.S.S.R.B. No. 22, at p. 13. [ 111 ] Dr. Chopra argues that Health Canada effectively condoned his absence from the workplace between March 15 and May 30, 2003, given its failure to insist that he return to work prior to May 30, 2003. According to Dr. Chopra, the failure of the Adjudicator to “squarely address” the issue of condonation renders the Adjudicator’s decision unreasonable. [ 112 ] Dr.

Chopra accepts that the Adjudicator specifically found that there was no “waiver” of the employer’s order: at para. 178. However, he attempts to distinguish a “waiver” from “condonation”, arguing that “waiver” means that the original order no longer exists whereas “condonation” means that the employer’s order stands, but employer is no longer insisting on compliance.

[ 113 ] In my view, Dr. Chopra is attempting to split hairs. The record amply supports the Adjudicator’s conclusion that the January 2003 order that Dr. Chopra report to work at Holland Cross had never been rescinded. Indeed, the record shows that throughout the period in question, Dr. Chopra wa s repeatedly advised by his employer that he was expected to report to work at the VDD’s Holland Cross offices. The Adjudicator’s finding that there had been no waiver of the original order to return to the workplace clearly addresses Dr. Chopra’s condonation argument. As a result, Dr.

Chopra has not persuaded me that the Adjudicator erred in this regard. [ 114 ] Finally, Dr. Chopra says that Ms. Kirkpatrick’s May 30, 2003 letter was the first direct order that he report to work at Holland Cross after his sick leave, and that it was unfair to impose discipline on him at the same time that the first order was made without first giving him the chance to comply with the order. There is no merit to this submission. [ 115 ] As noted, Dr. Chopra had been repeatedly directed to report to work at Holland Cross. He refused to do so.

The May 30, 2003 letter imposed discipline on him for his past misconduct. He was further warned that a continued refusal to comply would result in further discipline. There was nothing unfair about this.

(3) Was Health Canada Entitled to Discipline Dr. Chopra in Light of his Health and Safety Concerns? [ 116 ] Dr. Chopra submits that Health Canada was not entitled to discipline him because he had raised legitimate concerns regarding his health and safety which were never addressed by Health Canada. He submits that the Adjudicator’s finding that he did not provide sufficient particulars for the employer to investigate these concerns was unreasonable, as was his conclusion that Dr. Chopra’s “general concerns” about harassment did not justify him disobeying an order. According to Dr.

Chopra, this conclusion was also contrary to the Treasury Board Policy on Harassment which requires employers to address concerns of harassment immediately and effectively. [ 117 ] The Adjudicator expressly considered whether Dr. Chopra had a legitimate excuse for disobeying the order to return to the workplace: paras.179-182. He was satisfied that the employer had approved Dr. Chopra’s absence from the workplace from February 3 until March 15, 2003. The Adjudicator was not, however, satisfied that Dr.

Chopra’s alleged health and safety concerns entitled him to refuse to return to work after the end of his sick leave. [ 118 ] The Adjudicator noted that in order to be able to rely on a health and safety concern to justify a refusal to follow an order, an employee must raise the concern at the earliest possible opportunity. The Adjudicator noted that Dr. Chopra did not mention the February 3, 2003 lunchroom incident to his employer until the April 4, 2003 meeting, and even then, he refused to provide his employer with any details of the incident. It was only on April 17, 2003 that Dr.

Chopra forwarded a copy of the email that he had sent to his union representative to his employer. [ 119 ] The Adjudicator found as a fact that this was too late to allow Dr. Chopra to justify his refusal to return to work after the expiry of his sick leave, and that his circumstances did not bring him within an exception to the “obey now, grieve later” principle. This finding is one that falls squarely within the Adjudicator’s expertise, is amply supported by the record, and is entirely reasonable. [ 120 ] As noted earlier, the email to Dr.

Chopra’s union representative contained only a neutral description of the event, and made no mention of any concerns on Dr. Chopra’s part as to his personal safety. Indeed, as the Adjudicator observed, Dr. Chopra’s concern about workplace violence was never articulated to his employer and was raised for the first time at the hearing. [ 121 ] The Adjudicator also squarely addressed Dr. Chopra’s general concerns with respect to harassment and his work environment. The Adjudicator found that the evidence did not show any concern beyond difficult relationships with some of Dr.

Chopra’s colleagues, finding that the fact that his workplace may have been unpleasant did not justify his disobeying an order: at para. 181. No error has been demonstrated with respect to this finding.

(4) Did Health Canada Fail to Prove all of the Grounds for Discipline ? [ 122 ] Dr. Chopra’s final argument is that the employer failed to prove all of the allegations supporting the discipline in question. [ 123 ] It will be recalled that Ms. Kirkpatrick’s May 30, 2003 letter cited several grounds for discipline. These included Dr. Chopra’s unauthorized leave from the workplace, his insistence that he remained on telework despite repeated management instructions to the contrary, his failure to provide a medical certificate despite repeated requests, and his failure to provide information relating to his health and safety allegations in a timely manner.

[ 124 ] Dr. Chopra argues that the Adjudicator accepted his explanation for his failure to provide a medical certificate for his absence from work prior to March 15, 2003 with the result that his earlier failure to provide certificate could not have reasonably been used to support discipline. He further submits that because his leave up to March 15, 2003 was found to have been justified, so too was a large proportion of his so-called “unauthorized absence” from the workplace. As a consequence, Dr.

Chopra says that Health Canada could not rely on the full period of his absence as a basis for imposing discipline. [ 125 ] However, this argument ignores the fact that it is apparent on the face of the May 30, 2003 letter that Ms. Kirkpatrick accepted the medical certificate that Dr. Chopra had provided, and that he was only being disciplined for his unauthorized absence from the workplace after March 15 . [ 126 ] Dr. Chopra says that it was factually incorrect to say that he failed to provide information about his health and safety concerns in a timely manner.

He also disputes whether a failure to provide such information could ever form a valid basis for discipline, noting that, in any case, the Adjudicator failed to specifically find that this was a proper basis for discipline. [ 127 ] However, it is apparent from the Adjudicator’s reasons that he found as a fact that Health Canada had proven that Dr. Chopra was insubordinate by not returning to work when he was required to do so, and that he had not shown any justification for refusing to do so. As a result, the Adjudicator held that the employer was justified in disciplining Dr.

Chopra on this basis. [ 128 ] The Adjudicator then had specific regard to the appropriateness of the penalty imposed by the employer, in light of this particular misconduct . Given Dr. Chopra’s past disciplinary record and the seriousness of the insubordination, the Adjudicator concluded that a 10-day suspension was reasonable. This was an assessment that was squarely within the Adjudicator’s expertise and was, moreover, one that was reasonably open to him on the record before him. E. Conclusion [ 129 ] For these reasons, Dr.

Chopra’s application for judicial review of the Adjudicator’s decision with respect to his 10-day suspension is dismissed. The issue of costs will be dealt with at the conclusion of these reasons. IV. The “Speaking Out” Grievances [ 130 ] Dr. Chopra and Dr. Haydon were each disciplined for public statements that they made on a number of occasions between July 3, 2002 and October 4, 2003 regarding various matters. By letter dated December 9, 2003, Dr. Chopra received a 20-day suspension, whereas Dr. Haydon received a 10-day suspension on February 17, 2004.

I understand the differential treatment to be a function of the doctors’ respective disciplinary records rather than a reflection of differences in the gravity of the alleged misconduct. [ 131 ] Drs. Chopra and Haydon each grieved the discipline imposed upon them. The parties refer to these grievances as the “speaking out” grievances. [ 132 ] The speaking out grievances were addressed jointly by the Adjudicator, and Drs. Chopra and Haydon’s applications for judicial review were argued together before me.

As a result, I will deal with the two applications in one set of reasons, noting where necessary any material factual difference between Dr. Chopra’s case and that of Dr. Haydon. [ 133 ] As was noted earlier in these reasons, Drs. Chopra and Haydon had a long history of speaking out on issues that concerned them regarding matters coming within the jurisdiction of Health Canada, and the drug approvals process in particular. [ 134 ] Both scientists had previously been disciplined for their conduct. In Haydon #1 , Drs.

Chopra and Haydon were successful in having the discipline set aside on the basis that their claim that drug evaluators were being pressured to approve drugs of questionable safety constituted the disclosure of matters that could jeopardize the life, health or safety of the public. As a consequence, their statements were found to come within a recognized exception to the duty of loyalty. [ 135 ] On other occasions, however, Drs. Chopra and Haydon were unsuccessful in having the disciplinary measures imposed on them

for their public comments set aside: Haydon #2 and Chopra #1. Dr. Haydon did, however, succeed in having the penalty imposed on her in Haydon #2 reduced though the grievance process. A. The Statements in Issue [ 136 ] On July 3, 2002, a report aired on the CTV National News regarding the veterinary drug approval process at Health Canada. Dr. Chopra was interviewed, and stated that “[w]e were being pressured to pass drugs of questionable safety to favour the pharmaceutical companies.” Dr.

Haydon stated, “[t]he public doesn't know what happens in Health Canada and this is why I am here to speak out.” A Health Canada representative denied the allegations, and the news report concluded with the reporter’s statement that the “dissident” scientists would not be satisfied until there was a full Senate investigation into the drug approval process. [ 137 ] Dr. Chopra was interviewed on Canada AM on July 4, 2002. He was asked about an incident that led to the four scientists speaking out.

He replied by stating that this “is the latest and is the worst example of something that has been happening for a number of years going back to 1996 and before”. Dr. Chopra described the pressure at Health Canada to approve drugs quickly, and to approve drugs of questionable safety. He went on to describe the various efforts that he and his colleagues had made to have their concerns addressed, all to no avail. [ 138 ] Dr. Chopra was asked about the approval of certain products that included a drug called Tylosin.

He stated that the drug was “banned in Europe” and that the only person who could “fix the problem” was the Prime Minister. [ 139 ] Drs. Chopra and Haydon and others sent an open letter to the Canadian Veterinarian Medical Association and to all provincial veterinary medical associations and provincial veterinarian licensing bodies on July 17, 2002.

The letter stated that the authors were “... attempting to stop our supervisors from pressuring us to approve and maintain a series of veterinary drugs without the required proof of Human Safety under the Food and Drugs Act and Regulations.” They observed that the issues touched on food safety and health and were of “grave concern” both to the authors and to the public. [ 140 ] A “fact-finding meeting” was held with the applicants and the Acting Director General of the VDD, Ms. Kathy Dobbin, on July 22, 2002. Drs.

Chopra and Haydon were told that the purpose of the meeting was to establish the facts concerning their allegations in the media that they were being pressured to approve drugs that might not be safe. Drs. Chopra and Haydon were specifically informed that this was not a disciplinary meeting, nor were they told at the meeting that they would be subject to discipline for their actions or that they should cease speaking to the media about their concerns. [ 141 ] Ms. Dobbin followed up on this meeting with a letter to Drs.

Chopra and Haydon dated August 22, 2002, which noted that they had made a disclosure to the Public Service Integrity Office ( PSIO). Ms. Dobbin advised the applicants that a decision regarding their comments to the media would not be made until such time as the employer had reviewed the PSIO’s findings. She stated that the employer “... regard[ed] this matter as serious in nature, and have undertaken a thorough and comprehensive review.” [ 142 ] On August 19, 2002, Drs. Chopra and Haydon and others wrote to the Deputy Minister regarding “complaints of wrongdoing” involving Health Canada management.

The Minister of Health, the Clerk of the Privy Council, the head of the PSIO, and the President of the Professional Institute of the Public Service of Canada (PIPSC) were copied with the letter. Transcripts of the CTV news story and other documentation were attached to the letter. [ 143 ] In October of 2002, Dr. Chopra and Dr. Lambert were interviewed for a Country Canada report about the approval of a medicine including Tylosin. Portions of those interviews were excerpted on the CBC National News and in the newspaper Le Devoir . [ 144 ] Dr.

Chopra stated that the drug should not have been approved because the company had provided no human safety data. He told the interviewer that pressure to approve drugs did not come directly from pharmaceutical companies, but was exerted indirectly through the companies’ lobbying of the Prime Minister, the Minister of Health and the Privy Council Office. [ 145 ] Dr.

Chopra explained that the pressure then flowed down to drug evaluators at his level, telling the interviewer about the pressure that he had experienced to approve a drug called Baytril in the absence of necessary anti-microbial residue data. [ 146 ] Dr. Chopra stated “[t]hey call it risk management. In other words, to make profit let us take risk, and we will wait 20 or 30

years. If cancers occur, reproductive disorders occur, if people ... too many people die from antimicrobial resistance, then we will think about it. Then we will manage it.” He later stated “Nothing is going to happen to you tomorrow, or maybe even in a year’s time. But over [the] long term you may get cancer, there will be reproductive disorders in ... your children and grandchildren.” [ 147 ] Dr. Chopra was also dismissive of Ms. Kirkpatrick’s qualifications in the interview, noting that she had a PhD in physical chemistry, but was not a veterinarian or a microbiologist or a biologist. In actual fact, Ms.

Kirkpatrick has an Honours Bachelor of Science degree, with a Specialization in Physical Chemistry. [ 148 ] Drs. Chopra and Haydon and others wrote a second letter to the Prime Minister on November 4, 2002, once again voicing their concerns about the drug approval process. This letter was copied to the Minister of Health, the Deputy Minister of Health, the Clerk of the Privy Council, the PSIO, the President of the PIPSC, the Council of Canadians, the National Farmers’ Union, the Canadian Health Coalition, the Sierra Club of Canada and the Sierra Legal Defence Fund. [ 149 ] On November 15, 2002, Ms.

Kirkpatrick emailed Drs. Chopra and Haydon advising them that she had become aware that they were planning to speak at a press conference scheduled for November 18, 2002. Ms. Kirkpatrick reminded Drs. Chopra and Haydon of their duty of loyalty to Health Canada and the “balance that needs to be struck between the public interest in maintaining an impartial and effective public service and employees’ freedom of speech”.

She further reminded the applicants of the avenues available to them within Health Canada to have their concerns addressed. [ 150 ] At the November 18, 2002 press conference held by the Council of Canadians and the National Farmers Union, Dr. Chopra reiterated that drugs had to be approved based upon data, and not just on testimonial information. He also said that the problem was not just with one drug, but was rather with “the whole system.” He stated that “[w]e must do our job which is to make sure that the data required under the Canadian Food and Drugs Act which comes under the Criminal Code is provided.

To falsify and to say anything else otherwise would be wrong and would be against the Criminal Code .” Dr. Chopra also reiterated his concerns with respect to the pending approval of a Tylosin product, noting once again that the drug combination had been banned in Europe. [ 151 ] Dr. Chopra and Dr. Haydon both spoke of the harassment and coercion that they said they had experienced at Health Canada. Dr. Chopra said that he viewed Ms.

Kirkpatrick’s cautionary email sent before the press conference as “intimidation” and “clearly a threat”, noting that this Court “has ruled that it is our duty to the public as public service employees” to speak out with respect to matters of human safety. [ 152 ] Dr. Chopra reiterated his concerns with respect to the use of growth hormones and antibiotics and the implications that the use of these drugs could have for human health. Dr. Haydon stated that “it’s a shame that public funds are actually being spent to harm the public”.

Both applicants repeated their request for an inquiry into the drug approval process. [ 153 ] In a subsequent

article in the Globe and Mail , Dr. Haydon was quoted as saying that the drug approval system was in “chaos”. [ 154 ] Dr. Chopra was interviewed on CFAX-AM in Victoria, British Columbia on November 21, 2002. In addition to restating his allegations with respect to pressure being brought to bear on Health Canada drug evaluators and his criticism regarding Ms. Kirkpatrick’s qualifications, Dr. Chopra also reiterated his concerns with respect to the use of growth hormones and antibiotics, their role in the development of anti-microbial resistance, and their implications for human health and safety. [ 155 ] Dr.

Chopra was asked if he was aware whether anyone was being paid by pharmaceutical companies to approve drugs. Dr. Chopra stated that he had no direct knowledge of this, but that this was “not how modern corruption works”. When asked if he believed that a lot of corruption was occurring at Health Canada, Dr.

Chopra replied “Well, in the sense if people who don’t deserve, who don’t have the knowledge, get the jobs and are maintained for years and years and years, and they keep on bringing more and more people, and so this ... you know, the word ‘corruption’ is a technical ... word because it’s a legal term in that sense”. Dr. Chopra further stated that he did not know whether there was money involved or not, but that “certainly the companies are making money on useless products”. He characterized what was going on as “wrongdoing to the public”. [ 156 ] On January 24, 2003, Dr.

Chopra spoke at an information session about food irradiation organized by Health Canada and others. Ms. Kirkpatrick became aware of his intent to participate in this event and emailed Dr. Chopra a few days beforehand indicating that she wanted to ask him about the circumstances of his participation in the event given that he had no responsibility with respect to the regulation and control of food irradiation. She advised Dr. Chopra that he should explicitly state that he was speaking as a private citizen

if he spoke at the event. She also reminded him of the need to ensure the accuracy of his remarks and of his obligation to raise concerns internally before going public. [ 157 ] At the information session, Dr. Chopra described Ms. Kirkpatrick’s email as a “warning”. He went on to state that the presence of bacteria on food is an indicator of contamination, and that the source of the contamination should be identified rather than simply destroying it as this would be “covering up wrongdoing.” [ 158 ] Ms. Kirkpatrick followed up with Dr.

Chopra after this session on February 12, 2003, noting that she was assessing the situation and offering him an opportunity to provide input by February 19, 2003. Dr. Chopra replied on the following day, referring her to Mr. Yazbeck. [ 159 ] Mr. Yazbeck wrote to Ms. Kirkpatrick on several occasions concerning Dr. Chopra’s comments at the food irradiation session. In his June 30, 2003 letter, Mr. Yazbeck asked whether it was the employer’s “intention to impose discipline on Dr. Chopra” and whether the “imposition of discipline” was being considered. Ms.

Kirkpatrick responded on July 31, 2003 advising that the employer was engaged in a “fact-finding exercise” in order to determine the appropriateness of Dr. Chopra’s comments and that “inappropriate activities may result in disciplinary action.” [ 160 ] In the meantime, on May 21, 2003, Dr. Haydon was interviewed by the CBC about the recent discovery of a case of bovine spongiform encephalopathy (also known as mad cow disease or BSE). BSE is a brain disease of cattle characterized by a progressive degeneration of the animal’s nervous system. [ 161 ] Dr.

Haydon was quoted as having said that the government had not done enough to prevent the spread of BSE because the disease could remain dormant for up to a decade. The report also quoted Dr. Haydon as saying that she was “sorry to say that I told you so. And I think this is just the beginning.” [ 162 ] Drs. Chopra and Haydon made further comments on the BSE issue in an interview with a CTV reporter on June 5, 2003. Dr. Haydon stated that she had been telling her employer about ruminant feed spreading BSE since February of 2001. Dr. Chopra asked “Why are we taking this risk?

It’s such a simple thing, that you don’t feed it and the disease stops. It doesn’t spread. It’s as simple as that. Why wouldn’t they listen?” [ 163 ] The reporter noted that Dr. Chopra had been suspended from his job three days after sending a letter to the Minister of Health about the BSE issue. This was the 10-day suspension for unauthorized absence from work and insubordination that was addressed in the previous

section of these reasons. When asked whether there was a connection between the letter and the suspension, Dr. Chopra responded “I have no proof that ... this is the reason why it happened. But it makes you wonder.” [ 164 ] Similarly, a report in the Globe and Mail stated that Dr. Chopra had been suspended for two weeks and fined three months’ pay “... soon after urging the department to ban animal feeds that are suspected to cause mad cow disease.” Dr. Chopra was reported to have once again voiced his suspicions with respect to the timing of the disciplinary action. Dr.

Haydon was also reported to have said that she was upset about Dr. Chopra’s suspension as they had complied with a Health Canada request not to make the matter public. [ 165 ] Drs. Chopra and Haydon repeated their concerns with respect to the BSE issue in an interview on the CTV Canada Now program on June 6, 2003. That same day, they were interviewed by Dave Rutherford for a live radio show. Dr. Chopra stated that Canada was continuing with what he characterized as a “disastrous practice”. Dr.

Haydon said that the ban on ruminant feed introduced in Canada in 1997 was not “a true ban” but rather “a paper tiger”, explaining that “[a] true ban has to be a complete ban of all this rendered material in all types of feed”. [ 166 ] Dr. Chopra and Dr. Haydon both claimed that BSE could cross over into other species. Dr. Haydon explained that British scientists had demonstrated in a lab that pigs could be infected with BSE, although she later acknowledged that there was “an awful lot” that was not known about the disease. Dr. Haydon reiterated that she and her colleagues had concerns about human safety, and Dr.

Chopra accused Health Canada of “sleeping” by not dealing with the scientists’ concerns in a timely manner. Both Dr. Chopra and Dr. Haydon also referred to what they viewed as the retaliatory measures that had been taken against them by their employer. [ 167 ] On July 30, 2003, Ms. Kirkpatrick emailed Drs. Chopra and Haydon with questions regarding their comments in the media

relating to BSE, asking about the basis for their comments and what efforts they had made to raise their concerns internally. Ms. Kirkpatrick described the purpose of her questions as “fact-finding”. While she did indicate that she required answers to her questions in order to determine whether any action would be required on her part with respect to the applicants’ comments on BSE, once again there was no suggestion at this point that the applicants would be subject to discipline for their actions. [ 168 ] Dr. Chopra and Dr. Haydon responded in writing, advising Ms.

Kirkpatrick that the journalists had contacted them and that the information being sought by the journalists was specific to their own concerns and thus could not have been provided by a spokesperson for the employer in accordance with Health Canada’s policy on speaking to the media. [ 169 ] Finally, Dr. Chopra was interviewed on a radio talk show hosted by Stirling Faux on October 4, 2003. He described b

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