Tribunal File No. PSDPT-TPFD-2011-01
Application by the Public Sector Integrity Commissioner of Canada
to the Public Servants Disclosure Protection Tribunal
In the Matter of:
Courts Administration Service
Notice of Application
Pursuant to subsection 20.4(1) of the Public Servants Disclosure Protection Act, S.C., 2005, c. 46 (the “Act”), the Public Sector Integrity Commissioner of Canada (the “Commissioner”) hereby makes an application to the Public Servants Disclosure Protection Tribunal (the “Tribunal”) for a determination of whether or not a reprisal was taken against the complainant, Charbel El-Helou.
Type of Order Requested
Pursuant to paragraph 20.4(1)(b) of the Act, should the Tribunal find that a reprisal was taken against the complainant, the Commissioner intends to seek an order respecting a remedy in favour of the complainant and an order respecting disciplinary action against the person or persons alleged to have taken a reprisal.
Reasons Supporting the Application
- The complainant was at all material times a public servant employed by the Courts Administration Service (CAS) in Ottawa.
- This application relates to an allegation that the complainant’s Top Secret security clearance was withheld from him beginning in May 2009 and until his departure from the CAS in February 2010.
- The complainant filed a reprisal complaint with this Office on or about July 3, 2009. Attached hereto and marked as Appendix “A” is the original complaint received from the complainant. The complainant provided additional information to supplement his reprisal complaint on July 9, 2009, attached hereto and marked as Appendix “B”.
- Pursuant to subsection 19.4(2) of the Act, the Commissioner accepted the complaint for investigation. In accordance with sections 19.4 and 19.8 of the Act, notices of investigations were provided to the complainant, the respondents and the Chief Administrator of the CAS, in his capacity as the chief executive and the person who has the authority to take disciplinary action against each person who is alleged to have taken reprisal measures against the complainant.
- In accordance with section 20.3 of the Act, I was provided with the investigator’s report at the conclusion of the investigation. I have considered the investigator’s report and the factors stated at subsection 20.4(3) of the Act and have determined that an application to the Tribunal is warranted.
- Pursuant to paragraph 20.4(3)(a) of the Act, I have reasonable grounds for believing that the withholding of the complainant’s Top Secret security clearance from May 2009 until his departure from the CAS was a reprisal measure taken against the complainant because he made a protected disclosure of wrongdoing. The measure adversely affected his employment or working conditions.
- Pursuant to paragraph 20.4(3)(d) of the Act, I have also determined that it is in the public interest to make an application to the Tribunal, having regard to all the circumstances relating to this complaint.
- I believe that the following persons are responsible for taking the alleged reprisal measure:
- Mr. Eric Delage, Director General, Administrative, Facilities and Security Services Division, CAS.
- Mr. David Power, who was then the Senior Counsel and the Senior Officer designated for internal disclosures of wrongdoing under the Act at the CAS. Mr. Power also served as Acting Deputy Chief Administrator during the relevant period of time.
Summary of the Complaint
- The complainant began his employment at the CAS in August 2006; he held the position of Director, Client Services and Infrastructure, when the events giving rise to this complaint arose. He left the CAS in February 2010 and he is currently employed as a public servant at the Department of Public Works and Government Services Canada.
- According to the complainant, he made two protected disclosures of wrongdoing to the Senior Officer for the CAS on March 24 and March 25, 2009. During his discussions with the Senior Officer, the complainant claims to have disclosed information about a wrongdoing in relation to allegations of misuse of public funds, a violation of a person’s privacy rights and that he was directed to commit a wrongdoing.
- The complainant’s original reprisal complaint (Appendices A and B) concerned the following allegations of reprisals:
- That on or about June 5, 2009, the complainant was temporarily re-assigned to other duties and his supervisory responsibilities were taken away from him;
- That on or about May 25, 2009, a manager met with the complainant’s subordinates to obtain information about his management style and to solicit negative comments from employees reporting to him;
- That the complainant’s Top Secret security clearance was withheld from him beginning in May 2009; and
- That he was subject to ongoing harassment.
- The fourth allegation relating to harassment was withdrawn by the investigator with the complainant’s consent after the commencement of the investigation.
- Based on the results of the investigation, I have determined that there are sufficient grounds to warrant an application to the Tribunal in relation to allegation 3) above, that the complainant’s Top Secret security clearance was withheld from him as a reprisal measure. Pursuant to section 20.5 of the Act, I have dismissed allegations 1) and 2), having determined that there are insufficient grounds to warrant an application to the Tribunal.
The aforementioned information is provided to the best of my knowledge and belief.
Signed at Ottawa, Ontario, this 18th day of April 2011.
Original signed by: