T-518-80
Boris Celovsky (Applicant)
v.
Edmund Peter Newcombe, Commissioner (Re-
spondent)
and
Attorney General of Canada (Intervenant)
Trial Division, Cattanach J.—Ottawa, February 7
and 12, 1980.
Practice — Application for an order prohibiting respondent
from asking applicant a certain question in the course of an
investigation into the conduct of the applicant which conduct
may have impaired the functioning of Statistics Canada and
undermined public confidence in it — Whether or not the
question is pertinent to the investigation, the limits of which
are defined by Order in Council — Application dismissed —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 —
Inquiries Act, R.S.C. 1970, c. I-13 — Statistics Act, S.C.
1970-71-72, c. 15, s. 6.
Applicant seeks an order, prohibiting the respondent from
asking the applicant whether he disclosed information of any
sort which came into his possession by reason of his employ
ment, to the Press, a person outside of Statistics Canada and
specifically in a letter written by him to the Chief Statistician,
and published two days later in a newspaper. The respondent
was appointed to investigate certain allegations made by the
applicant, which may have impaired the functioning of Statis
tics Canada and undermined public confidence in it. A sub
poena was served on the applicant who subsequently requested
and received a draft of the area of questions to be asked. The
applicant objected to the above-quoted question, on the grounds
that the Order in Council authorized the investigation into the
conduct of any person in the service of Statistics Canada who
may have violated the oath referred to in section 6 of the
Statistics Act through unauthorized disclosure of information
and accordingly the only appropriate question was whether or
not there had been a disclosure of statistical information col
lected pursuant to the Statistics Act. In other words, the
information which must not be disclosed by an employee of
Statistics Canada without authorization, is that which came
into the hands of the Bureau by reason of the provisions of the
Statistics Act and that is what is meant by the oath in section 6
of that Act; it does not apply to other information which may
have come to an employee by reason of his employment.
Held, the motion is dismissed. The Order in Council is to be
given a liberal interpretation. Bearing in mind the broadness
and scope of the investigation which the Commissioner is
authorized to conduct within the bounds of the Order in
Council, the answer to the question is pertinent to his inquiry.
It is when that answer is forthcoming that the Commissioner
must then conclude whether a disclosure was in breach of the
oath. It is conceivable that Dr. Celovsky's examples of the
adoption of unwise and futile policies may also have come to his
knowledge by reason of information gathered by virtue of the
provisions of the Statistics Act. This the Commissioner is
required by his mandate to ascertain and clarify which he can
only do by asking pertinent questions and make his conclusions
from the answers elicited. He is also obliged to investigate and
report upon the conduct of any person pertaining to any
"allegations of improper or illegal conduct ... made by Dr.
Celovsky or others, which may have impaired the functioning
of the agency and ... public confidence in it". Public disclosure
of material critical of the manner in which Statistics Canada
operates by an employee, even if justified, may undermine
public confidence in the Bureau and as such may well consti
tute improper conduct as being behaviour inconsistent with the
responsibilities of a public servant. The same applies to public
criticism to like effect. That is a subject which by the Order in
Council the Commissioner is bound to investigate and report
upon and accordingly the question which the Commissioner
proposes to put to Dr. Celovsky is a proper one. Having so
concluded it is proper, for this reason it is unnecessary to decide
upon the interpretation of the oath of secrecy.
MOTION.
COUNSEL:
G. R. Morin, Q.C. and J. L. Shields for
applicant.
No one appearing for respondent.
E. R. Sojonky for intervenant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
intervenant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: By originating notice of motion
dated February 4, 1980 the applicant seeks an
order pursuant to section 18 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, prohibiting
the respondent from asking the applicant:
... whether he personally has disclosed to the press or to
persons not in the service with Statistics Canada, information
or knowledge (other than information collected pursuant to the
Statistics Act, 19-20, Elizabeth I1, C.15), of any sort coming
into his possession by reason of his employment with Statistics
Canada; or to inquire from the said Boris Celovsky whether he
has any information or knowledge with respect to the publica
tion in the Ottawa Citizen of his letter to Dr. Peter Kirkham,
dated November 6th, 1979.
Edmund Peter Newcombe, Esq., Q.C., was
appointed a Commissioner under Part II of the
Inquiries Act, R.S.C. 1970, c. I-13, to investigate
and report upon certain matters which can best be
indicated by a reproduction of the pertinent Order
in Council, being P.C. 1979-3435, given under
date of December 13, 1979 in its entirety:
The Committee of the Privy Council had before it a report of
the President of the Treasury Board submitting:
That Statistics Canada collects, compiles, analyses, abstracts
and publishes statistical information upon which significant
economic and social decisions may be based, both in govern
ment and in the private sector;
That certain allegations have been made by ,Dr. Boris
Celovsky, a senior officer of Statistics Canada, which may have
impaired the functioning of the agency and undermined public
confidence in it;
That it is in the public interest that the said allegations be
investigated.
The Committee, therefore, on the recommendation of the
President of the Treasury Board, hereby authorizes the
appointment of Mr. Edmund Peter Newcombe, Q.C., of the
City of Ottawa, Province of Ontario, as a Commissioner under
Part I1 of the Inquiries Act to investigate and report upon
1. the state and management of that part of the business of
Statistics Canada and the conduct of any person in the
service thereof pertaining to any allegations of improper or
illegal conduct or negligence made by Dr. Boris Celovsky or
others, which may have impaired the functioning of the
agency and undermined public confidence in it, and without
restricting the generality of the foregoing,
(a) any alleged instances of negligence in collecting statisti
cal information;
(b) any alleged instances of failure to faithfully and honest
ly collect, compile, analyse, abstract and publish statisti
cal information;
(c) any alleged instances of any person in the service of
Statistics Canada engaging in private activities incom
patible with his official functions or otherwise behaving
in a manner inconsistent with his responsibilities as a
public servant;
(d) any alleged instances of favoritism or preferential treat
ment in appointments or promotions; and
2. the conduct of any person in the service of Statistics Canada
who may have violated the oath or affirmation referred to in
section 6 of the Statistics Act through unauthorized disclo
sure of information.
The Committee further authorizes the issue of a commission
to the said Commissioner providing:
1. that the proceedings of the inquiry be held in camera, but
persons whose conduct is the subject of investigation shall be
entitled to attend;
2. that the Commissioner adopt such procedures and methods
as he may from time to time deem expedient for the proper
conduct of the inquiry, and may sit at such times and at such
places as he may decide from time to time;
3. that the Commissioner may engage the services of a reporter;
4. that the Commissioner shall have access to personnel and
information available in Statistics Canada and other depart
ments and agencies of the Government of Canada and shall
be provided with adequate working accommodation and
clerical assistance; and
5. that the Commissioner shall report to the President of the
Treasury Board on his findings and recommendations within
two months, or within such further period of time as the
President of the Treasury Board may authorize, and shall
provide interim reports if so requested by the President of the
Treasury Board. [Emphasis added.]
Mr. Newcombe in the discharge of his respon
sibilities caused to be served upon the applicant a
subpoena commanding him to appear on February
1, 1980 to testify to all matters within his knowl
edge relative to the subject matters referred to in
the Commission and to bring any documents in his
power or possession relative to these matters.
Counsel for the applicant requested to be
advised of the questions the Commissioner pro
posed to put to his client.
The Commissioner obligingly responded and
enclosed a three-page draft of areas of questions to
Dr. Celovsky.
Exception was not taken to any of the areas of
proposed questioning of the applicant except to the
following:
Paragraph (2) of the terms of reference of the Commission
refers to "the conduct of any person in the service of Statistics
Canada who may have violated the oath or affirmation referred
to in section 6 of the Statistics Act through unauthorized
disclosure of information." I propose questioning Doctor
Celovsky whether he has any knowledge of any person within
the service of Statistics Canada who has disclosed information
without proper authority in addition to conduct referred to in
paragraph numbered (1).
I also propose under this heading to ask Doctor Celovsky
whether he personally has disclosed information or knowledge
of any sort coming into his possession by reason of his employ
ment to the Press or to persons outside of the service of
Statistics Canada and I shall specifically refer him to a letter
written by him on November 6, 1979 to Dr. Peter Kirkham and
published two days later in an article in the Ottawa Citizen of
November 8, 1979 by Frank Howard.
The crucial question is that portion of the
second paragraph quoted which reads:
... whether he personally has disclosed information or knowl
edge of any sort coming into his possession by reason of his
employment to the Press or to persons outside of the service of
Statistics Canada and I shall specifically refer him to a letter
written by him on November 6, 1979 to Dr. Peter Kirkham and
published two days later in an article in the Ottawa Citizen of
November 8, 1979 by Frank Howard.
which is in essence the language of the notice of
motion quoted above with slight variation.
On the day prior to the day fixed for the appli
cant to testify the Commissioner entertained a
motion made by counsel for the applicant at which
counsel for Statistics Canada appeared.
As I understand the submissions made to the
Commissioner on behalf of the applicant were
concurred in by counsel for Statistics Canada and
are substantially the same as those advanced
before me.
In summary form the basis of those submissions
are that by virtue of paragraph 2 of the Order in
Council, P.C. 1979-3435, the only appropriate
inquiry to be directed to the applicant by the
Commissioner was whether or not there had been
a disclosure of statistical information collected
pursuant to the Statistics Act, S.C. 1970-71-72, c.
15, on the basis that an employee cannot violate
the oath as outlined in section 6 of the Act, unless
he has disclosed information so collected without
first being authorized to do so.
The oath of office in section 6 reads as follows:
6. (I)...
I, , do solemnly swear (or affirm) that I will
faithfully and honestly fulfil my duties as an employee of
Statistics Canada in conformity with the requirements of the
Statistics Act, and of all rules and instructions thereunder and
that I will not without due authority in that behalf disclose or
make known any matter or thing that comes to my knowledge
by reason of my employment.
At the outset I entertained reservations as to
whether the present motion should be considered
at all it being academic as no questions had been
put to the witness.
I share with the Commissioner his doubts as to
whether he should disclose in advance to counsel
the line of questions he proposed to put to a
specific witness who was the client of counsel who
requested to be so informed. While I have no
doubt that the Commissioner was not obliged to
comply with counsel's request nevertheless I agree
with the Commissioner's expectation that to do so
would expedite the matter. Having complied with
counsel's request I also agree with the practicality
of the Commissioner's decision to hear and decide
in advance counsel's objection to the one particular
question which is here in issue proposed to be put
to the witness.
It was for the same reasoning that I heard the
present motion even though the question had not
been put to the witness. It was not difficult to
foresee the future course of events. The almost
absolute certainty is that the question would be
put to the witness by the Commissioner. With
equal certainty the witness, on advice of his coun
sel, would refuse to answer the question. Not to
hear the motion at this time would only delay the
necessity of the matter raised in the motion being
resolved until the question was put to the witness
and his refusal to answer the question.
Upon the motion being called counsel for the
Attorney General of Canada moved that his client
should be added as an intervenant. Pursuant to
that request and with consent of counsel for the
applicant the Attorney General was so added. The
Commissioner was not represented.
I am in complete agreement with counsel for the
Attorney General when he pointed out that the
function of the Commissioner is simply to investi
gate by collecting information and to report upon
his investigation and accordingly the Commission
er functions as a purely administrative body. He is
not a judicial body nor even quasi-judicial because
he decides nothing; neither does he determine any
thing and as such is not subject to the rules of
natural justice other than to act fairly to the best
of his ability. This being so counsel for the Attor
ney General submitted that prohibition would not
lie.
In the circumstances of the present motion
prohibition is not sought to preclude the Commis
sioner from carrying out his mandate as outlined
in the Order in Council but rather to preclude the
Commissioner from asking this one specific ques
tion. To resolve this issue resort must be had to the
Order in Council to ascertain what limitations are
imposed upon the Commissioner.
The purpose of the Order in Council is abun
dantly clear. Allegations have been made by Dr.
Boris Celovsky, a senior officer of Statistics
Canada, which may have impaired the functioning
of the Bureau and undermined public confidence
in it. It is in the public interest that these allega
tions be investigated.
This manifest intention of the Order in Council
must not be defeated by too literal an adhesion to
its precise language but regard must be had to the
object it had in view. In so saying I do not mean to
say that clear provisions of the Order in Council
must be controlled by reference to the object. If
alternative constructions of the language are avail
able then the construction which will carry the
object into effect rather than the construction
which would defeat that object should prevail.
In short the Order in Council is to be given a
liberal interpretation.
In outlining the draft area of questions to be put
to Dr. Celovsky the Commissioner indicates that
under paragraph 2 of the Order in Council he
proposes to ask the witness whether he disclosed
information of any sort which came to his atten
tion by reason of his employment, to the Press, a
person outside the service of Statistics Canada and
specifically in a letter dated November 6, 1979
written by him to Dr. Peter Kirkham, the Chief
Statistician, and published two days later in the
issue of the Ottawa The Citizen dated November
8, 1979.
Paragraph 2 is repeated here in isolation for
emphasis and convenience. Prefaced by the words
"to investigate and report upon" it reads:
2. the conduct of any person in the service of Statistics Canada
who may have violated the oath or affirmation referred to in
section 6 of the Statistics Act through unauthorized disclo
sure of information.
Clearly the conduct of Dr. Celovsky himself is
not beyond investigation by the Commissioner.
Again as I appreciate the interpretation of this
subject matter with respect to which investigation
is authorized, urged by counsel for the applicant, it
is that in section 6 of the Inquiries Act, under
which the Commission came into being, is the
conduct of any person in the public service so far
as it relates to his official duties. The crucial words
are "official duties". That being so those duties
cannot be construed as "any duties". The "official
duties" of an employee of Statistics Canada as
distinct from any public servant, must be those
outlined in the Statistics Act. From these premises
counsel for the applicant contends that the infor
mation which must not be disclosed by an
employee of Statistics Canada, without authoriza
tion, is that which came into the hands of the
Bureau by reason of the provisions of the Statistics
Act and that is what is meant by the oath in
section 6 of that statute. It does not apply to other
information which may have come to an employee
by reason of his employment.
I have considerable doubt if the restrictive inter
pretation urged by counsel for the applicant is
warranted by the language of the oath of secrecy
sworn by an employee of Statistics Canada. He
swears that: (1) he will fulfil his duties in conform
ity with the requirements of the Statistics Act and
(2) he will not "without due authority in that
behalf disclose or make known any matter or thing
that comes to [his] knowledge by reason of [his]
employment". The words "in that behalf" in the
English version of the statute are susceptible of
referring to information that came to his knowl
edge as an employee with respect to matters in
possession of the Bureau by virtue of the statute
under which it operates or those words are also
susceptible of referring to the authorization to be
given.
In the French version of the statute there is no
doubt. The words "sans y avoir été dûment auto-
risé" refer exclusively and conclusively to the
authorization. The authorization must be specific.
That is of assistance in interpreting the English
version of the statute. There too the words "in that
behalf" must refer to the authorization and not the
information. That being so the word "and" is
disjunctive in the context from which it follows
that the affiant swears to two things; to faithfully
and honestly fulfil his duties and not to disclose
anything which came to his knowledge "by reason
of [his] employment" without authority. Put yet
another way the second part of the oath is sever-
able from the first and stands alone. Therefore the
words "by reason of my employment" must be
given their ordinary meaning within that context.
However because of the view I take of the
matter I am not compelled to decide whether the
more limited meaning to be ascribed to the oath
advanced by counsel for the applicant is the cor
rect interpretation or not.
Bearing in mind the broadness and scope of the
investigation which the Commissioner is author
ized to conduct within the bounds of the Order in
Council, I fail to follow why the answer to the
question is not pertinent to his inquiry. It is when
that answer is forthcoming that the Commissioner
must then conclude whether a disclosure was in
breach of the oath.
In the case of the letter written by Dr. Celovsky
to Dr. Kirkham he first seriously questions the
standards for senior staffing. This would be a
matter of internal departmental administration
which no doubt came to Dr. Celovsky's knowledge
by reason of his employment.
In his letter he then goes on to give three
examples of projects two of which constituted a
waste of public funds which should never have
been launched and were launched contrary to the
advice of labour economists within the Bureau.
These two projects were abandoned after their
having proved futile and useless. The third exam
ple was the making of periodic adjustments of
labour income the basic surveys for which were
unreliable and there is no consistent technical basis
for the periodic adjustments required by the origi
nal errors.
These three examples were criticisms of the
policies and management of the Bureau. They
came to Dr. Celovsky's knowledge by reason of his
employment.
That he made these criticisms to the Chief
Statistician, the Chairman of the Public Service
Commission and perhaps to three other candidates
for promotion is not reprehensible in itself being
internal matters but different considerations may
well apply when this letter was disclosed to and
published in the Press.
It is conceivable that Dr. Celovsky's examples of
the adoption of unwise and futile policies may also
have come to his knowledge by reason of informa
tion gathered by virtue of the provisions of the
Statistics Act.
This the Commissioner is required by his man
date to ascertain and clarify which he can only do
by asking pertinent questions and make his conclu
sions from the answers elicited.
While the Commissioner has predicated his pro
posed question, here under review, on paragraph 2
of the Order in Council with respect to the conduct
of employees which might be in violation of the
oath under section 6 of the Statistics Act through
unauthorized disclosure of information he is also
obliged to investigate and report upon the conduct
of any person pertaining to any "allegations of
improper or illegal conduct ... made by Dr. Boris
Celovsky or others, which may have impaired the
functioning of the agency and ... public confi
dence in it".
By "illegal conduct" I would expect is meant a
breach of the oath of secrecy which might lead to
criminal prosecution and punishment.
But the Commissioner is obliged to investigate
and report upon allegations of "improper ... con
duct" which is further clarified in paragraph 1(c)
as "behaving in a manner inconsistent with his
responsibilities as a public servant".
Public disclosure of material critical of the
manner in which Statistics Canada operates by an
employee, even if justified, which may undermine
public confidence in the Bureau and as such may
well constitute improper conduct as being behavi
our inconsistent with the responsibilities of a
public servant. The same applies to public criti
cism to like effect.
That is a subject which by the Order in Council
the Commissioner is bound to investigate and
report upon and accordingly the question which
the Commissioner proposes to put to Dr. Celovsky
is a proper one. Having so concluded it is proper
for this reason it is unnecessary for me to decide
upon the interpretation of the oath of secrecy and
what specifically is contemplated thereby as not
being the subject matter of disclosure without
authorization which would constitute a violation of
that oath.
For the foregoing reasons the motion is
dismissed.
The circumstances of the motion clearly dictate
that this is a case where there should be no award
of costs for or against any party and none were
asked for by either party.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.