The Alberta Court of King’s Bench has quashed a decision that found the former superintendent of schools at the Sturgeon Pubic School Division guilty of gross mismanagement.
The court determined that the investigation by the acting Public Interest Commissioner lacked procedural fairness, significantly impacting M.C.’s ability to defend herself against serious allegations of creating a culture of bullying and intimidation within the division.
M.C. sought judicial review after the Commissioner’s decision concluded she had grossly mismanaged employees, in violation of section 3(1)(c)(iii) of the Public Interest Disclosure (Whistleblower Protection) Act. The Commissioner’s investigation revealed that more than 85% of the Division’s Central Office employees corroborated the allegations against her, indicating a “reckless or wilful disregard for proper management.”
The court, however, highlighted several procedural flaws. The investigation did not disclose the names of the complainants to M.C., preventing her from fully responding to the allegations. This lack of transparency, the court noted, compromised the procedural fairness owed to M.C.
Introduction and context
The court’s analysis began with an examination of the Act, which aims to protect employees who report significant and serious matters of wrongdoing by public officials. Wrongdoings, as defined under the Act, include gross mismanagement involving systemic issues like bullying, harassment, or intimidation.
M.C., appointed in 2018 to improve the Division’s culture, faced allegations in May 2021 of gross mismanagement. Despite being on approved medical leave, M.C. participated in the investigation, submitting responses and identifying supportive individuals.
The Commissioner concluded that her management style created a culture of fear and intimidation. However, she challenged the decision on grounds of procedural fairness, impartiality, and substantive unreasonableness.
Procedural fairness
The court emphasized the importance of procedural fairness in administrative proceedings. Drawing from the Supreme Court’s decision in Baker v Canada, the court weighed the nature of the decision, the statutory scheme, the importance of the decision to those affected, and the procedures chosen by the Commissioner.
The court found that the investigation resembled a professional disciplinary process, warranting a high degree of procedural fairness. The Commissioner’s failure to disclose the identities of complainants and specific incidents deprived M.C. of a meaningful opportunity to defend herself. The Commissioner argued confidentiality, but the court noted the Act did not mandate such secrecy.
The court referenced Chapman v Canada, where similar procedural issues were raised under federal whistleblower legislation. In both cases, the nature of the investigation and the potential for serious repercussions required greater procedural safeguards.
Reputational damage
The court recognized the significant reputational damage to M.C., noting the widespread dissemination of the decision within the Division. The decision effectively ended her career and prospects for post-retirement consulting, underscoring the need for a fair and transparent process.
Partiality and bias
While the court refrained from ruling on the grounds of bias, it noted concerns about the language of the initial complaint, which closely mirrored the statutory language, suggesting a possible agenda.
“Based on the language of the complaint, the Commissioner should have been very skeptical. I would think that a more typical complaint from an employee would be that a boss is nasty or controlling or bullying or otherwise treated that person disrespectfully in one particular incident,” the court said. “When a complaint tracks exactly the language of the legislation, it suggests that the complainant may have a particular agenda in mind.”
Additionally, the Commissioner’s statement about fostering a positive whistleblower culture implied a proactive role beyond the statutory mandate.
Reasonableness and remedy
The court chose not to rule on the reasonableness of the decision, emphasizing the need for judicial restraint. However, it acknowledged that a decision lacking procedural fairness is unlikely to be reasonable.
Ultimately, the court quashed the Commissioner’s decision without remitting it for re-investigation. Given M.C.’s retirement and the Division’s improved functioning, a re-investigation was deemed unnecessary. The court left open the possibility for counsel to seek costs if they could not agree.
For more information, see Campbell v Alberta (Public Interest Commissioner), 2024 ABKB 372 (CanLII).
