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Cabinet (Fed) - Public Servants Disclosure Protection Act (PSDPA). Dempsey v. Canada (Attorney General)
In Dempsey v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR, this brought against an earlier decision "of the Public Sector Integrity Commissioner of Canada (the Commissioner) not to investigate his disclosure of wrongdoing made pursuant to the Public Servants Disclosure Protection Act" (PSDPA).
This case illustrates aspects of PSDPA law and procedure ('whistle-blowing?'):[2] In a disclosure filed with the Commissioner, the appellant, who is not a public servant, claimed that after engaging in litigation in the context of a shareholder dispute against the CEO of "“a private sector company that supplies government agencies”" (the civil litigation), he began experiencing "“widespread disruptions”" in his life, including harassment, break-ins, threats, and loss of employment opportunities. He alleged that these disruptions could be traced to "“state‑sponsored criminal actors”" operating as part of a government program using "“Fourth Industrial Revolution technologies”" either in "“a clandestine trial”" or to "“facilitate a retaliatory hate crime following a shareholder dispute.”" He filed his disclosure to expose this "“scandal”" and "“to prevent the impact to other victims which are expected to be affected.”"
[3] The appellant claimed that many organizations with which he had had dealings since the civil litigation and in the context of that litigation were complicit in the scandal and had committed wrongdoing as defined in the Act. These included federal organizations and public bodies, courts and municipal police forces.
[4] The appellant had originally submitted a disclosure form in which he had asked the Commissioner to review the contents of his personal website. When the Commissioner’s case admissibility analyst informed him that the Commissioner would not review his website to try to ascertain what his allegations of wrongdoing were and asked him to submit a clearer and more precise account of these allegations, the appellant provided the analyst a lengthy email.
[5] In a detailed three-page decision, the Commissioner decided not to investigate the appellant’s allegations.
[6] The Commissioner first noted that the Act applies to wrongdoing in or relating to the "“public sector,”" defined as departments, organizations and public bodies named in schedules to the Financial Administration Act, R.S.C. 1985, c. F-11 and the Act itself. She held that of all the entities alleged by the appellant to have committed wrongdoing, only the Canada Revenue Agency (CRA) and the Royal Canadian Mounted Police (RCMP) fell within the "“public sector”" and therefore under the Commissioner’s jurisdiction. Accordingly, she decided that she had no jurisdiction to commence an investigation in relation to allegations of wrongdoing involving organizations other than the CRA and RCMP.
[7] The Commissioner also observed that where information is provided by a person who is not a public servant, subsection 33(1) of the Act provides that, subject to restrictions and discretionary factors set out in sections 23 and 24, she may commence an investigation into alleged wrongdoing if she has reason to believe that wrongdoing, as defined under section 8, has been committed and if she believes on reasonable grounds that the public interest requires an investigation. The Commissioner observed that the purpose of the Act is to address wrongdoing "“of an order of magnitude that could shake public confidence if not reported and corrected”" and that poses a "“serious threat to the integrity of the public service”" (Canada (Attorney General) v. Canada (Public Sector Integrity Commissioner), 2016 FC 886 at para. 106). The Commissioner decided that the appellant’s allegations against the CRA and RCMP arose from the appellant’s personal situation pertaining to what appeared to be a private civil litigation and thus did not involve wrongdoing under the Act as defined in the jurisprudence. Noting that these matters "“should continue to be addressed through procedures available to deal with such concerns,”" the Commissioner exercised her discretion not to investigate the appellant’s allegations.
[8] The appellant sought judicial review of the Decision, arguing that it was unreasonable and procedurally unfair. The Federal Court dismissed the application. It held that the Commissioner’s decision that she could not consider organizations named by the appellant in his disclosure that fell outside the federal public sector was reasonable, as was her decision that the appellant’s allegations regarding the CRA and RCMP, which were public sector entities under the Act, arose from a private and personal matter and that an investigation would not be in the public interest.
[9] The Federal Court held that the Commissioner’s decision not to consider all the material on the appellant’s personal website did not breach procedural fairness or render the decision unreasonable. In its view, the Commissioner did not have a responsibility to discern and assess the alleged wrongdoing from a large volume of materials on the website; rather, the appellant had the evidentiary burden to set out a clear and cogent narrative in his disclosure.
[10] On an appeal from the decision of the Federal Court on judicial review of the Commissioner’s decision, the question before this Court is whether the Federal Court chose the correct standard of review and applied it properly. This Court effectively steps into the shoes of the Federal Court and reviews afresh the Commissioner’s decision (Gordillo v. Canada (Attorney General), 2022 FCA 23 at para. 58 [Gordillo], citing Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45–47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10).
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[17] Subsection 33(1) of the Act provides that, where the Commissioner has reason to believe that a wrongdoing has been committed, she "“may… commence an investigation into the wrongdoing if… she believes on reasonable grounds that the public interest requires an investigation”" (underlining added). This decision involves an exercise of discretion and is factually suffused. As such, it deserves considerable deference (Canada (Attorney General) v. Ennis, 2021 FCA 95 at para. 56). This Court must refrain from reweighing and reassessing the evidence considered by the Commissioner (Vavilov at para. 125). It will not interfere with the Commissioner’s factual findings unless the appellant establishes that she fundamentally misapprehended or failed to account for the evidence before her (Vavilov at para. 126).
[18] The appellant has not satisfied this burden. In my view, based on the record before her and given the legal and factual constraints governing the exercise of her discretion, it was open to the Commissioner to characterize the appellant’s allegations of wrongdoing involving the CRA and RCMP as "“arising from his personal situation”" pertaining to the civil litigation. In doing so, the Commissioner cannot be taken to have conflated the civil litigation with the criminal activities reported by the appellant, particularly when her reasons are read holistically and in light of the record (Vavilov at para. 103). It was also open to the Commissioner to decide that, given the applicable jurisprudence, the appellant’s allegations did not reveal wrongdoing of a sufficiently serious nature such that the public interest required an investigation. The Commissioner’s decision not to investigate was reasonable.
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