Case: Campbell v. Alberta (Public Interest Commissioner), 2026 ABCA 184
Keywords: whistleblowers; anonymized witnesses; audi alteram partem
Synopsis:
A whistleblower alleges wrongdoing by the Respondent, Mary Lynne Campbell. The Public Interest Commissioner’s office investigates and issues two “investigation summaries” which describe information gathered from various anonymized witnesses. (See para. 2). The Respondent asserts she cannot make a complete response to the allegations without knowing the witnesses’ identities. The Commissioner ultimately issues a report concluding the Respondent committed wrongdoing contrary to s. 3(1)(c)(iii) of the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, c P-39.5 (i.e., gross mismanagement, including an act or omission that is deliberate and that shows a reckless or wilful disregard for the proper management of…employees, by a pattern of behaviour or conduct of a systemic nature that indicates a problem in the culture of the organization relating to bullying, harassment or intimidation”).
The Respondent retires. (See paras. 2). She later applies for judicial review of the Commissioner’s report, arguing non-disclosure of the witnesses’ identities constituted a breach of the duty of procedural fairness; that the Commissioner was biased and that the report was “substantively unreasonable”. (See para. 3). The judicial review judge (Little J.) agrees that non-disclosure breaches the duty of procedural fairness and quashes the Commissioner’s report. (See para. 4). The Court of Appeal (Antonio, de Wit, and Hawkes JJ.A.) allows the Commissioner’s appeal, finding that “[p]rotecting the identity of the whistleblower and witnesses was consistent with the duty of procedural fairness imposed under PIDA”, there was no “reasonable apprehension of bias”, and the Commissioner’s report was “substantively reasonable”. (See para. 6).
Importance:
The Court of Appeal began its substantive analysis with a brief discussion of PIDA’s privative clause. (See paras. 7-11). Section 52(1) of PIDA provides that “except on the ground of lack of jurisdiction, no proceeding or decision of the Commissioner shall be challenged, reviewed, quashed or called into question in any court”. Bearing in mind that the Supreme Court of Canada has reserved judgment in the Democracy Watch v. Canada (Attorney General) matter, the Court ultimately declined to opine on the effect of s. 52(1) – though it did indicate that “[t]he effect of privative clauses is contentious and nuanced” and “regardless of its effect, the outcome of this appeal is the same”. (See paras. 9-10).
Regarding the applicable standard of review, the Court of Appeal described its task as stepping into the shoes of the lower court to perform “a de novo review such that the focus is, in effect, on the administrative decision”. (See para. 12; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 36 and Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10). As to the standard applicable to the substance of the Commissioner’s report, the Court of Appeal found that it was reasonableness. (See para. 13; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 10, 16-17, and 23).
Beginning at para. 45, the Court of Appeal provided a highly detailed analysis of the procedural fairness question, covering such topics asthe scope of the audi alteram partem rule (see paras. 84-85) and what is required to pierce solicitor-client privilege (see para. 102). The Court’s analysis followed the five-non-exhaustive-factor structure described by the Supreme Court of Canada in Canada (Attorney General) v. Mavi, 2011 SCC 30. In other words, its assessment of the content of the duty was informed by:
- the nature of the statutory scheme;
- the nature of the decision being made and the process followed in making it;
- the importance of the decision to the individual or individuals affected;
- the legitimate expectations of the person challenging the decision; and
- the choices of procedure made by the administrative decision maker itself. (See para. 48).
In this case, the Court of Appeal was satisfied that the investigation summaries “adequately set out the case the [R]espondent had to meet”; that the Respondent received the degree of procedural fairness to which she was entitled in the circumstances. (See paras. 96-97, 109). For the Court, “genericized” disclosure achieved fairness in a way that was “appropriate to the decision being made in its statutory, institutional, and social context” and allowed the Respondent to provide a “paragraph-by-paragraph response”. (See paras. 97, 99). As found by the Court, while it may have been “easier” for the Respondent had she been made aware of the witnesses’ identities, “administrative procedures need not be optimal to be fair”. (See para. 98).
Counsel for the Appellant: M. Joseph Redman (Shores Jardine LLP, Edmonton)
Counsel for the Respondent: Matthew Woodley and Brad Smith (Reynolds Mirth Richards & Farmer, Edmonton)