Duty of Loyalty

This paper was developed to describe, in general terms, the current thinking on duty of loyalty in the federal public sector. Its purpose is to help employees and managers understand the key concepts and provide some assessment criteria for specific cases. It is not a legal opinion. When assessing specific cases you should consult the Senior Official for Values and Ethics in your department and legal services.

This paper was developed to describe, in general terms, the current thinking on duty of loyalty in the federal public sector. Its purpose is help employees and managers understand the key concepts and provide some assessment criteria for specific cases. It is not a legal opinion. When assessing specific cases you should consult the Senior Official for Values and Ethics in your department and legal services.

Overview

The duty of loyalty has long been a fundamental value and requirement of the public service of Canada. In Canada's system of parliamentary democracy, public servants owe a duty of loyalty to their employer, the Government of Canada. This duty derives from the essential mission of the public service to help the duly elected government, under law, to serve the public interest. The duty of loyalty reflects the importance and necessity of an impartial and effective public service to achieve this mission.

The duty of loyalty is reflected in the "Values and Ethics Code for the Public Service", 2003, which has been adopted as a policy of the Government of Canada and forms part of the conditions of employment of the Public Service.

A significant number of cases involving the duty of loyalty have come to court. The cases typically result from judicial reviews of grievances on disciplinary action taken by the government as employer on the basis that the public servant's conduct is in breach of the duty of loyalty.

The principles, qualifications and factors emerging from these court judgments on the duty of loyalty, including a decision of the Supreme Court of Canada, can be summarized as follows:

The duty of loyalty owed by public servants to the Government of Canada encompasses a duty to refrain from public criticism of the Government of Canada.
Failure to observe the duty of loyalty may justify disciplinary action, including dismissal.
However, the duty of loyalty is not absolute, and public criticism may be justified in certain circumstances.
In determining whether any particular public criticism is justified and therefore not subject to disciplinary action, the duty of loyalty must be balanced with other interests such as the public servant's freedom of expression.
Three situations in which the balancing of these interests is likely to result in an exception being made to the duty of loyalty are where:

the Government is engaged in illegal acts;

Government policies jeopardize life, health or safety; or

the public servant's criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.

Criticism may impair a public servant's ability to perform 1) his or her specific job or 2) to perform any public service job (i.e. suitability to remain in the public service), and hence justify disciplinary action. Public perception of that ability is as important as actual ability. An inference of impairment can be drawn in both cases, based on the principles and qualifications set out above, without the need for direct evidence.

Criticism that is not related to the job or department of the public servant may still be found to be subject to the duty of loyalty.

Relevant factors for determining whether these principles and qualifications are met in a given situation include:

The substance, context and form of the criticism:

"Substance" refers to the content of the criticism;

"Context" refers for example to the frequency of the criticism and the forum or media in which it is made;

"Form" refers to the manner in which the criticism is expressed (e.g. restrained or vitriolic).

The position and visibility of the public servant (for example, a professional public servant such as a scientist making a public criticism relating to the public servant's area of professional expertise);

The degree to which a public servant can prove an allegation;

Whether the public servant takes steps to determine the facts before making public criticism;

Whether the public servant raises concerns internally and uses internal mechanisms before making public criticism;

Whether the public criticism is based merely on a policy disagreement;

Attribution of inappropriate motives.

For a fuller treatment of the duty of loyalty, including illustrations of how these considerations have been applied in court judgments, see the longer text.

Introduction

This text describes the duty of loyalty, which has long been a fundamental value and requirement of the public service, from the perspectives of its policy and legal significance.

The first section of the text situates the duty of loyalty in the broad context of Canadian parliamentary democracy and the values of the public service which are necessary to support it. The second and longer section describes how the courts in Canada have interpreted and applied the duty of loyalty. Many cases have come before the courts, typically by way of judicial reviews, after grievances against disciplinary action imposed on a public servant for public criticism of the government, thereby breaching the duty of loyalty. The resulting court judgments clarify the meaning and scope of the duty of loyalty, and provide guidance to the government as employer and to individual public servants.

Policy significance

"Loyalty to the public interest, as represented and interpreted by the democratically elected government and expressed in law and the Constitution, is among the most fundamental values of public service".

This is one of the conclusions of "A Strong Foundation - Report of the Task Force on Public Service Values and Ethics", 1996, John C. Tait, Q.C, Chair ( "the Report") pp. 27, 54. Many other public service values, such as integrity, equity, fairness and impartiality, are linked to the value of loyalty or draw their strength from it (pp. 27-8, 54). The Report identifies "loyalty to the public interest", together with accountability to ministers - and through them to the citizens of Canada - and the rule of law as being among the key democratic values that underpin public service (p. 54).

The Report reaches these conclusions after an extensive analysis of the principles of democratic life in a parliamentary system, and the issues of responsible government and the accountability of public servants. It points out that it is "crucial for public servants, at all levels, to understand that the chief public service value is service to democracy, that there is none higher, and that, following professional advice and democratic deliberation, faithful execution of democratic decisions is what a public service is for, not to substitute for them some other definitions of the public good...Public servants must remember what they are - delegates of their minister. And what system they serve - a democratic one where elected officials have legitimacy to define the public interest" (pp. 16-17).

The duty of loyalty is reflected in the "Values and Ethics Code for the Public Service", 2003, ("the Code"), which drew heavily on the analysis and conclusions of the Report. Loyalty and other related values are placed in the broad context of the role of the public service of Canada. The opening passage of the Code describes the Public Service of Canada as "an important national institution, part of the essential framework of Canadian parliamentary democracy. Through the support they provide to the duly elected government, public servants contribute in a fundamental way to good government, to democracy and to Canadian society" (p. 5). The Code points out that "the Constitution of Canada and the principles of responsible government provide the foundation for Public Service roles, responsibilities and values" (p. 5). Furthermore, "The democratic mission of the Public Service is to assist Ministers, under law, to serve the public interest" (p. 6).

In enumerating public service values, the Code states that "public servants shall be guided in their work and their professional conduct by a balanced framework of public service values: democratic, professional, ethical and people values" (p. 7). "Democratic values" are summarized as "helping Ministers, under law, to serve the public interest" (p. 7). The first illustration of democratic values is: "Public servants shall give honest and impartial advice and make all information relevant to a decision available to Ministers". The second illustration explicitly introduces the concept of the duty of loyalty: "Public servants shall loyally implement decisions, lawfully taken" (p. 7).

The Code is stated to be a policy of the Government of Canada and "all public service activities should be consistent with [the Code]" (p. 11). Moreover, the Code forms part of the conditions of employment in the Public Service of Canada. At the time of signing their letter of offer, public servants acknowledge that the Code is a condition of employment (p. 12). "All public servants are responsible for ensuring that they comply with this Code and that they exemplify, in all their actions and behaviours, the values of public service" (pp. 12-13).

The duty of loyalty is by no means unique to the Public Service of Canada. Every Western democratic government has requirements that employees of their public administration be impartial and non-partisan. For example, the UK Civil Service Code states that: "Civil servants are servants of the Crown. Constitutionally, the Crown acts on the advice of Ministers and, subject to the provisions of this Code, civil servants owe their loyalty to the duly constituted Government" (s. 2).

Legal significance

The Values and Ethics Code is not the sole authoritative basis for the duty of loyalty in the Public Service of Canada. The courts of Canada have long recognized and applied the duty of loyalty as a matter of common law in the context of the public service. The duty of loyalty is therefore both a matter of policy and law.

Typically, the duty of loyalty is raised in court in the following way. The government as employer takes disciplinary action against a public servant on the basis that the public servant's conduct - by way of public criticism of the government, for example - is in breach of the duty of loyalty. The disciplinary action can take such forms as reprimand, suspension, or dismissal. Where the public servant chooses to contest the disciplinary action, a grievance or complaint is filed alleging that his or her conduct did not constitute a breach.

The grievance or complaint is adjudicated by a body such as the Public Service Labour Relations Board. In the event of a judicial review from that administrative tribunal, higher levels of court deal with the matter. Cases may go, by way of ultimate appeal, to the Supreme Court of Canada.

An analysis of court judgments is essential to an understanding of the extent of the duty of loyalty. Court cases are based on "real life" cases. They apply, define and qualify the duty of loyalty in light of specific fact situations which have arisen in the public service.

They confront and resolve issues such as the following. Can public criticism be justified in certain circumstances, such as if the government's acts being criticized are illegal or dangerous? Is criticism permissible if it has no impact on the public servant's ability to perform his or her duties or on the public perception of that ability? Does it matter if the criticism relates to the duties of the position or the policies and programs of the department in which he or she is employed, as opposed to an unrelated aspect of government activity? Does the position and visibility of a public servant make a difference? Does the duty of loyalty apply to professionals such as government scientists who are convinced that some government action is professionally unsound?

The courts have had also had to consider the following issues. Is the duty of loyalty absolute, or should it be balanced against other values, rights or freedoms, such as the freedom of expression? If balancing is to be done, what criteria apply? What does the duty of loyalty mean in the Charter era, given the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms? What proof is needed to demonstrate that the duty of loyalty has not been observed? Need a public servant prove an allegation against the government? Need a public servant raise concerns internally before making them public? Does it make a difference if the public servant approaches the media, or is approached by them?

The written reasons for judgment handed down by the courts in cases raising such issues, especially where the reasons enunciate principles of general application about the duty of loyalty that can be applied to other circumstances, provide valuable and authoritative guidance for the government as employer and for public servants.

The remainder of this text consists of an analysis of relevant court judgments in Canada, with a view to highlighting the principles in a way that is of greatest use in applying the duty of loyalty to "real life" situations.

It should be noted that there is a duty of loyalty in the private sector as well, as an implied term in employment contracts, but the extent of that duty is beyond the scope of this text. Similarly, this text does not deal with other related topics where some of the same principles may apply, namely political activity by public servants or conflict of interest involving public servants. This is because the courts in Canada have most often been called upon to apply the duty of loyalty to situations of public criticism of government

As early as the 19th century, there were judgments in Canada, England and the US dealing with the duty of loyalty, both in the private sector and the public sector. In Canada, there have been many court judgments and hundreds of arbitral awards dealing with the duty of loyalty in the public sector.

The following analysis is based on cases which shed light on the duty of loyalty as it applies to the public service of Canada. The analysis takes the following form. The leading case on the duty of loyalty, a judgment of the Supreme Court of Canada, is presented at length, together with a summary of the principles, qualifications and factors this case articulates. Clarifications of these considerations as derived from subsequent judgments are then identified, in the form of factors that are relevant to defining the duty of loyalty.

The Fraser case

The Supreme Court of Canada's ruling in 1985 in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, ("Fraser"), is the leading case in Canada on the duty of loyalty. Although it did not refer to previous court or arbitral decisions on the duty of loyalty, the judgment continued and confirmed the reasoning of previous decisions. It addresses a broad range of the issues enumerated above and spells out principles, qualifications and factors that can be applied to other situations. As a judgment of the Supreme Court of Canada, it is binding on lower courts. The subsequent cases involving the duty of loyalty referred to later in this text have cited this decision and endeavoured to apply it to the situations brought before them.

Fraser involved an employee of Revenue Canada, and Group Head of the Business Audit Division of the Kingston Office, Neil Fraser, who was responsible for supervising tax audits of large corporations. In 1982, Mr. Fraser began speaking out against the federal government's metrification program. In a letter to the editor of the Kingston Whig-Standard, he criticized the program. He later attended a city council meeting where he was photographed waving a placard that stated "Your freedom to measure is a measure of your freedom". For these actions, he received a three-day suspension and a direction to refrain from making any further public comments critical of the government. The employer's response attracted considerable media attention and Mr. Fraser used the opportunity to extend his criticisms of the Canadian Charter of Rights and Freedoms. For this, he received a second suspension, of ten days. Mr. Fraser continued his attacks against the government and the Prime Minister, equating the Prime Minister and his government to the Nazis and to the communist regime in Poland. As a result of his activities, Fraser's employment was terminated. It should be noted that none of his comments directly related to the manner in which the department in which he was employed (Revenue Canada) operated or its policies.

Mr. Fraser brought a grievance before the Public Service Staff Relations Board alleging unjust suspension and discharge. The essence of his argument was that while public servants must exercise restraint in public criticism of policies which involve their position or the department in which they work, such restraint could not be imposed with respect to policies which do not affect their duties or responsibilities and therefore his criticisms did not amount to misconduct. The adjudicator agreed that the first suspension was not justified but upheld the second suspension and Mr. Fraser's dismissal finding that his conduct jeopardized his ability to perform his duties at his department, and that his actions were "unlikely to instill confidence in a clientele (persons subject to tax audits) that had a right to expect impartial and judicious treatment" (p. 461).

Mr. Fraser commenced an action for judicial review at the Federal Court. He alleged that the adjudicator made two errors of law: 1) that the dismissal on the basis of policies unrelated to his work of the functions of the department in which he worked was not supportable; and 2) that the adjudicator erred in finding that Mr. Fraser's effectiveness as a public servant had been impaired because of public perception of his conduct because no evidence had been adduced to that effect. The Federal Court of Appeal dismissed his application, finding that there had been no error of law.

On appeal to the Supreme Court of Canada, Chief Justice Dickson, speaking for the court, asserted the need to strike a balance between the employee's freedom of speech and the legitimate concern that public servants be seen to serve the public in the administration and implementation of Government policies and programs in an impartial and effective manner. In approving and paraphrasing the adjudicator's reasoning, the Court stated: "A public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties. It is implicit throughout the Adjudicator's reasons that the degree of restraint which must be exercised is relative to the position and visibility of the civil servant" (p. 467).

The Court agreed with Mr. Fraser's assertion that public servants cannot be "silent members of society", for three reasons.

"First, our democratic society is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.

Secondly, account must be taken of the growth in recent decades of the public sector - federal, provincial, municipal - as an employer. A blanket prohibition against all public discussion of all public issues by all public servants would, quite simply, deny fundamental democratic rights to far too many people.

Thirdly, common sense comes into play here. An absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities which no sensible person in a democratic society would want to prohibit. Can anyone seriously contend that a municipal bus driver should not be able to attend a town council meeting to protest against a zoning decision having an impact on her residential street? Should not a provincial clerk be able to stand in a crowd on a Sunday afternoon and protest a provincial government decision cutting off funding for a day care centre or a shelter for single mothers? And surely a federal commissionaire could speak out at a Legion meeting to protest against a perceived lack of federal support for war veterans. These examples, and many others could be advanced, demonstrate that an absolute prohibition against public servants criticizing government policies would not be sensible" (p. 467).

The Court went on to point out the need to balance this freedom of speech against other values.

"On the other hand, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. Thus, for example, we have laws dealing with libel and slander, sedition and blasphemy. We have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.

A similar type of balancing is required in the present appeal. Public servants have some freedom to criticize the Government. But is it not an absolute freedom. To take but one example, whereas it is obvious that it would not be "just cause" for a provincial Government to dismiss a provincial clerk who stood in a crowd on a Sunday afternoon to protest provincial day care policies, it is equally obvious that the same Government would have "just cause" to dismiss the Deputy Minister of Social Services who spoke vigorously against the same policies at the same rally" (p. 468).

The "crucial question" in this light was stated to be whether the Adjudicator erred in where he drew the line in this case. Even if the distinction asserted by Mr. Fraser between criticism which is job-related and that which is non-job-related were to be accepted, the Court notes that the Adjudicator concluded that Mr. Fraser's' criticisms were job-related. Noting that Mr. Fraser's criticisms were directed against policies on which his job and the policies of his department did not have a bearing, the Court asserted that "A job in the public service has two dimensions, one relating to the employee's tasks and how he or she performs them, the other relating to the perception of a job held by the public" (p. 469).

The judgment quotes with approval the Adjudicator's treatment of these two dimensions, including the following: "A corporate taxpayer who is selected as the subject of an audit by Mr. Fraser [...] might well speculate about the reasons for having been selected and be concerned about the professionalism of the exercise [in light of Mr. Fraser's public statement comparing the Prime Minister's conduct to that of a communist government]. Surely a relatively influential official of Revenue Canada who publicly and vehemently accuses his employer, the Government of Canada, and the Prime Minister of autocratic and coercive behaviour is unlikely to instill confidence in a clientele that has a right to expect impartial and judicious treatment" [...] A public servant simply cannot be allowed under the rubric of free speech to cultivate distrust of the employer among the members of the constituency he is obliged to serve [...] His [...] persistent campaign in opposition to the incumbent Government conflicted with the continuation of his employment relationship. Once that situation arose he either had to cease his activities or resign from the position he occupied" (p. 469).

The Court accepted this analysis and conclusion, namely that Mr. Fraser's criticisms were job-related, as correct in law, on the basis of "the importance and necessity of an impartial and effective public service" (p. 469). The fundamental task of the public service is stated to be to administer and implement policy. "In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third" (p. 470).

A further characteristic is stated to be "loyalty". The ensuing paragraph is the portion of the judgment that is the most cited in subsequent cases, as it sets out key principles and qualifications. "As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her abilities to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government" (p. 470).

The "powerful reason" stated by the Court for this "requirement of loyalty" is "the public interest in both the actual, and apparent, impartiality of the public service [...] A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government" (pp. 470-1).

The Court then examined the topic of evidence of impairment to perform a public service job, in light of Mr. Fraser's argument that the Adjudicator erred in law in finding that his effectiveness as a public servant was impaired by his public statements, without any evidence to that effect. At the hearing, there had not been, for example, any testimony from persons subject to a Revenue Canada tax audit establishing that in their eyes Mr. Fraser's conduct placed his impartiality and judiciousness in doubt. In spite of this, the Adjudicator concluded that Mr. Fraser's activities impaired this ability to do his job properly, in two senses: "first, impairment to perform effectively the specific job because of the inferred effect on clients; secondly, and in a wider sense, impairment to be a public servant because of the special and important characteristics of that occupation" (p. 472).

The Court endorsed these findings on both counts. "As to impairment to perform the specific job. [...] the general rule should be that direct evidence of impairment is required. However, this rule is not absolute. Where, as here, the nature of the public servant's occupation is both important and sensitive and when, as here, the substance, form and context of the public servant's criticism is extreme, then an inference of impairment can be drawn. In this case the inference drawn by the Adjudicator, namely that Mr. Fraser's conduct could or would give rise to public concern, unease and distrust of his ability to perform his employment duties, was not an unreasonable one for him to take" (pp. 472-3).

As to evidence of the second aspect of "impairment", namely to the role as public servant (as opposed to performing a specific job), the Court concluded that direct evidence is not necessarily required. "The traditions and contemporary standards of the public service can be matters of direct evidence. But they can also be matters of study, or written and oral argument, of general knowledge on the part of experienced public sector adjudicators, and ultimately, of reasonable inference by those adjudicators. It is open to an adjudicator to infer impairment on the whole of the evidence if there is evidence of a pattern of behaviour which an adjudicator could reasonably conclude would impair the usefulness of the public servant. Was there such evidence in this case? In order to answer that question it becomes necessary to consider the substance, form and context of Mr. Fraser's criticism of government policy" (p. 473).

The Court proceeded to apply these criteria, and in so doing provided valuable guidance on their applicability to other situations. "When one examines the substance of the criticisms (two major government policies and the character and integrity of the Prime Minister and Government), the context of those criticisms (prolonged, virtually full time, in public meetings, on radio, on television, in newspapers, local, national, international), and the form of the criticisms (initially restrained, but increasingly vitriolic and vituperative) the Adjudicator's conclusion that Mr. Fraser's' ability to perform his own job and his suitability to remain in the public service were both impaired was a fair conclusion. Though no direct evidence of the fact of impairment of capacity is required, here the evidence clearly established circumstances from which the inference of impairment is clearly irresistible. Put simply, although there is not an absolute prohibition against public servants criticizing government policies, Mr. Fraser in this case went much too far" (p. 474).

Principles, qualifications and factors in Fraser

The principles and qualifications articulated by the Fraser case can be summarized as follows:

Public servants owe a duty of loyalty to their employer, the Government of Canada, given the public interest in both the actual and apparent impartiality of the public service.
The duty of loyalty encompasses a duty to refrain from public criticism of the Government of Canada. Public servants are required to exercise a degree of restraint in their actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties.
Failure to observe the duty of loyalty may justify disciplinary action, including dismissal.
However, the duty of loyalty is not absolute, and public criticism may be justified in certain circumstances.
In determining whether any particular public criticism is justified and therefore not subject to disciplinary action, the duty of loyalty must be balanced with other interests such as the public servant's freedom of expression.
Three situations in which the balancing of these interests is likely to result in an exception being made to the duty of loyalty are where:
1. the Government is "engaged in illegal acts";
2. Government policies jeopardize "the life, health or safety of the public servant or others"; or
3. the public servant's criticism "has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability".
The position and visibility of the public servant is a relevant factor.
The substance, context and form of the criticism are relevant factors.
- "Substance" refers to the content of the criticism;
- "Context" refers for example to the frequency of the criticism and the forum or media in which it is made;
- "Form" refers to the manner in which the criticism is expressed (e.g. restrained or vitriolic).

Criticism that is not related to the job or department of the public servant may still be found to be subject to the duty of loyalty under the above principles.
Criticism may impair a public servant's ability to perform 1) his or her specific job or 2) to perform any public service job (i.e. suitability to remain in the public service), and hence justify disciplinary action. Public perception of that ability is as important as actual ability. An inference of impairment can be drawn in both cases, based on the principles and qualifications set out above, without the need for direct evidence.

In subsequent arbitral decisions and court judgments, the ruling in the Fraser case has been repeatedly applied to other fact situations. The following portion of this text highlights the relevant factors in defining the duty of loyalty which emerge from these subsequent rulings.

The Duty of Loyalty and the Charter

It should be noted that Fraser did not deal with the Canadian Charter of Rights and Freedoms, as its facts arose before the Charter came into force. But in subsequent cases which applied the Fraser decision and in which the Charter's freedom of expression was raised, it has been concluded that the duty of loyalty as interpreted by Fraser applies under the Charter.

In an adjudication under the Canada Labour Code, (Roseau River Tribal Council v. Gordon James and Charles Nelson, [1989] 4 C.N.L.R 149), the adjudicator stated: "Fraser did not arise under the Canadian Charter of Rights and Freedoms but I believe that the Court's reasoning, as to the balancing of the value of a public servant's right to freedom of speech against the value of an impartial and effective public service, remains valid and is one of significance for the case before me" (p. 156).

In a subsequent case (Haydon v. Canada, [2001] 2 F.C. 82, ("Haydon No. 1")), the Federal Court concluded that: "The common law duty of loyalty as articulated in Fraser sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter" (p. 120). This conclusion has been quoted with approval by the Federal Court of Appeal (in Haydon v. Canada, 2005 FCA 249, ("Haydon No. 2"), at para. 33).

Truth of the Criticism

A further case which applied the Fraser decision suggests that the degree to which a public servant can prove an allegation is relevant to determining whether the criteria in Fraser are met. In Grahn v. Canada (Treasury Board), [1987] F.C.J. No. 36, ("Grahn"), the ruling turned on the fact that a public servant who made public allegations including illegality on the part of his employer had not proved that the allegations were truthful.

The grievor was employed as an investigation and control officer by the Canada Employment and Immigration Commission. He was very critical of the management, policies, programs and clients of the Commission, and submitted a manuscript containing these criticisms to a magazine that used it to publish an article critical of the Commission. Included in these criticisms were allegations of fraud. The employer initially suspended the public servant for 15 days pending completion of the investigation, after which the grievor was discharged.

After quoting the passage cited above from Fraser ("As a general rule, federal public servants should be loyal to their employer, the Government of Canada" and the three exceptions it contemplates, starting with the Government's being engaged in illegal acts), the Federal Court of Appeal stated: "The fact remains, however, that having chosen the drastic course of publicly accusing his superiors of illegalities, it was up to the applicant to prove his allegations if he wished to avoid the otherwise natural consequences of his actions. As the applicant himself admitted at the hearing before us, the record is devoid of such proof. The applicant's own unsubstantiated allegations are certainly not enough." In the result, the public servant's dismissal was upheld.

In a later decision of the Federal Court which adopted the approach in Grahn, a public servant dismissed for improper public criticism alleging government illegality argued that it is not necessary that the accusations of illegality be true, only that they be honestly believed, or at least that there be some evidence in support thereof. Although it was found that the public servant honestly believed what he had said, the Court stated that "Honesty is not enough. There must be some rational basis to the allegations" (Read v. A.G., 2005 FC 798, ("Read"), para. 100). The judgment went on to say that it was not necessary for the Court to determine the precise level of proof required, as the public servant "did not even come close to proving his allegations on a balance of probabilities" (para. 101) Although the Court acknowledged that the public servant may have established more than Grahn did, it concluded that "a scintilla of evidence is clearly not enough to allow one to breach one's duty of loyalty and one's oaths" (para. 104).

In that case, an RCMP officer was accused of disobeying an order not to discuss with the media an investigation into suspected criminal activity in and about the Immigration Section of the Canadian Mission in Hong Kong, by discussing the case with the press, radio and television and sharing secrets by providing them with classified documents and information. His defence was that he thought criminals had infiltrated the computer system in Hong Kong and were able to issue false visas, and that his superior officer was a criminal trying to cover up serious wrongdoing and incompetence within Citizenship and Immigration Canada, External Affairs and the RCMP itself. He argued the "whistle-blower defence", i.e. that he came within the first two exceptions in Fraser, and that he came within an alleged further exception to the duty of loyalty, that of "legitimate public interest". The Court rejected these arguments and upheld his dismissal.

Checking the facts

A relevant factor in determining whether a public servant who makes a public criticism breaches his or her duty of loyalty toward the employer is whether the employee took steps to determine the facts before speaking.

In a recent decision of the Federal Court, the evidence demonstrated that "the applicant failed to use the many resources available to her to determine the accuracy of her statement" (Haydon No. 2, [2004] F.C.J No. 932, para. 63, decision upheld by the Federal Court of Appeal, 2005 FCA 249). In that case, the public servant was a drug evaluator in the Bureau of Veterinary Drugs at Health Canada. She publicly commented in a newspaper interview on the appropriateness of a ban on the importation of Brazilian beef. She indicated that the ban was more a political move (related to an ongoing trade dispute between Canada and Brazil) than a health move for the Canadian government, as she did not think there was any difference in risk between Brazilian and Canadian beef. As a result of the comments attributed to her in the newspaper article, she was suspended for 10 days. The Federal Court upheld the adjudicator's decision that the public servant had breached her duty of loyalty and that discipline was warranted, reducing the suspension however from 10 to 5 days.

Raising concerns internally and using internal mechanisms

The efforts made by the employee to raise his or her concerns with the employer are a further relevant factor, sometimes related to the factor of checking the facts.

The Federal Court held this to be a key consideration in concluding that the public criticism was justified in Haydon No. 1. The summary of the Court's reasons noted that "public criticism aired on national television was not the first step taken in order to have the issue of the safety and efficiency of the drug approval process addressed. The applicants endeavoured on several occasions to have their concerns addressed internally without success. As a general rule, public criticism will be justified where reasonable attempts to resolve the matter internally are unsuccessful" (para. 120).

The two public servants in that case were scientists responsible for evaluating new veterinary drug submissions to ensure compliance with human safety requirements of the Food and Drugs Act and Regulations. They became concerned with the drug approval process' impact on human health. After repeated efforts to have their concerns addressed internally, including a request for an external investigation and for the intervention of the Health Minister and the Prime Minister, they finally decided to complain publicly. During an interview on a national television news program, they expressed serious concerns regarding the drug review process and the impact these problems could have on the health of Canadians. One of the public servants was issued a written reprimand for having given the interview, in alleged breach of his duty of loyalty, and the other a letter of instruction requesting her to adhere to the departmental procedures regarding contact with the media.

After citing Fraser at length, the Federal Court concluded, in large measure because the public servants had raised their concerns internally in this way, that the public criticism was justified and that the public servants should not have been reprimanded.

In a subsequent case before the Federal Court (Haydon No. 2), the judgment quotes with approval an earlier decision stating that an employee "should give his employer an opportunity to explain or correct the problem. Most employers have a variety of mechanisms, formal or informal, under which an employee may lodge a complaint about the manner in which the enterprise should be operated. Only if no satisfaction results from these channels...may an employee "go public" (para. 47).

The public servant in Haydon No. 2 had argued that nothing her employing department could have done internally would have been able to address her concerns. The adjudicator did not accept this argument. "Unfortunately, we will never know if that is true or not because [the grievor] chose not to raise the matter internally. However, it is not, in my view, up to the employee to assess whether or not the employer can address this concern. Rather it is up to the employee to raise his/her concerns internally, and then engage in a full discussion with the employer on the issue" (para. 21).

A subsequent decision by the Federal Court found that even if the public servant in that case "had otherwise been justified in going public, which he was not, he was precluded from doing so because he had not exhausted internal recourses. The underlying rationale is that a loyal employee will give his employer a reasonable opportunity to correct the problem" (Read, para. 123, relying on Haydon No. 2.)

Whether the public servant approaches the media

Whether the public servant takes the initiative in contacting the media, or responds to media inquiries has been considered to be relevant factor. In Haydon No. 2, the media contacted the public servant. The Federal Court noted that "this fact mitigated to some extent the sanction imposed", in that the adjudicator reduced the penalty from a 10-day suspension to 5 days (para. 24). But the fact of not having initiated the media contact did not justify the public servant's public criticism, nor did her claim that the reporter had taken her statements out of context in the ensuing newspaper article.

Nature of public servant's position

The position and visibility of the public servant is a relevant factor, as indicated in Fraser. For example, where the public servant is a scientist and makes public criticism of a government decision relating to the public servant's area of scientific expertise, this may weigh against the public servant in balancing the duty of loyalty against freedom of expression. In Haydon No. 2, the Federal Court found that it "was certainly reasonable for the adjudicator to infer that the [public servant's] opinion was newsworthy because of her position as a Health Canada scientist" (para. 61).

Nor does the argument that the public servant is merely stating her or his opinion to the media necessarily carry weight. In Haydon No. 2, it is noted that the public servant insisted that "she was voicing her own opinion", but the adjudicator added that "someone who lends his or her name to a public statement carries the risk that there will be more or less weight attributed to that statement depending on the expertise of the person to whom the statement is attributed." The adjudicator concluded that the public servant's name carried significant weight, "much more weight than an 'anonymous' source". The public servant "was a scientist with Health Canada saying [the decision to ban Brazilian beef] was not a health issue. At the very least, this would have caused confusion among members of the public, and it certainly led to disruption within the Department. Members of the multi-disciplinary team had to be diverted from planning their trip to Brazil to instead, preparing ministerial briefing notes" (para. 61). (This passage was emphasized by the Federal Court of Appeal in its decision to dismiss the appeal from the Federal Court's decision, at para. 44.)

In addition to the professional status and visibility of the public servant's position, the level in the structure of government may be relevant. "The need for impartiality and indeed the appearance thereof does not remain constant throughout the civil service hierarchy. As stated...in Fraser, 'It is implicit...that the degree of restraint which must be exercised is relative to the position and visibility of the public servant.' To apply the same standard to a deputy minister and a cafeteria worker appears to me to involve considerable overkill and does not meet the test of constituting a measure that is carefully designed to impair the freedom of expression as little as reasonably possible". This statement was made by the Supreme Court of Canada in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at para. 61, which struck down the outright prohibition of partisan political activity contained in the Public Service Employment Act, except as it applied to deputy heads. (The offending provision has since been amended.)

Life, health or safety qualification; "issues of legitimate public concern"

The conduct of public servant scientists who appeared on television to express their concerns as to the drug approval process, after repeated, unsuccessful efforts to have their concerns addressed internally, has been found to fall within the qualification stated in Fraser, namely disclosure of government policies that jeopardize "life, health or safety". In Haydon No. 1, the Federal Court concluded that the public servants' conduct "constituted an exception to the common law duty of loyalty as identified in Fraser. Their statements disclosed a legitimate public concern with respect to the efficiency of the drug approval process within the Bureau of Veterinary Drugs" (headnote, p. 86).

After citing the three qualifications or exceptions in Fraser, this judgment summarized them as embracing "matters of public concern", and went on to state that "Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a public official" (pp. 108-9, emphasis added). Although as mentioned in the previous paragraph the judgment was based on the second qualification in Fraser (jeopardy to life, health or safety), this new criterion of a matter being of "legitimate concern requiring a public debate" has acquired some status in subsequent jurisprudence, albeit apparently short-lived. As is set out in the remainder of this section, this criterion has been adopted in some subsequent decisions. In three Public Service Staff Relations Board decisions (Chopra, Lewicki, Scott, cited below) this criterion was applied (although it was found to have been met in only the first, Chopra). In four Federal Court cases, the criterion was applied but found not to have been met (Haydon No. 2), was mentioned but not applied (Stenhouse), and, most recently, has been twice disapproved (Read, Chopra No. 2).

In the first case, the only one where the criterion was found to have been met, a Health Canada employee made critical comments about the experience of visible minorities in his department at a public conference and he was given a five day suspension. The Public Service Staff Relations Board, in concluding that the criticism was justified, stated: "[The public servant's] comments did not affect his ability to perform his duties as a drug evaluator and he has not violated his duty of loyalty. The Fraser decision recognizes that there are exceptions to the duty of loyalty. It enumerates those exceptions, although not exhaustively. I am of the view that [the public servant's] comments constitute an exception to the duty of loyalty and that he was speaking on an 'important public issue' (Haydon). In my view, racism and employment equity are issues which transcend an individual's station in life and constitute 'issues of public interest' (Chopra v. Treasury Board (Health Canada), 2001 PSSRB 23, ("Chopra No. 1"), para. 91).

In three subsequent cases, public criticism was found not to have been justified, on the basis that it did not meet the Fraser qualifications and did not relate to a matter of "legitimate public concern".

In the first case, a public servant who was a grain inspector at the Canadian Wheat Board criticized his employer's grain quality policy at a public conference, including the financial impact those policies would have on grain producers. In its decision, the Public Service Staff Relations Board stated: "[The public servant] actively expressed opposition to the policies of his employer. Those policies did not jeopardize the life, health or safety of the public servant or others or engage him or the employer in illegal acts. I do not consider that the public disclosure made by [him] embraced a legitimate public concern requiring public debate. The issue relating to the single grade standard and/or the new assessment procedure for the ergot is not of outstanding importance to the public interest...I come to the conclusion that [his] allegations do not fall within the exceptions set out in the decisions in Fraser and Haydon No. 1". (The significance of ergot was explained earlier in the decision as follows: "Ergot is a fungus that contaminates wheat and some other cereal grains. The quantity of ergot infecting a sample of wheat is one of the criteria used to give a quality grade to the wheat and determines the value of a shipment.") (Lewicki v. Treasury Board (Canadian Grain Commission), 2002 PSSRB 37, at paras. 49, 20).

In another case, a tax collector at Revenue Canada had a contentious relationship with his supervisors and management. When his complaints of harassment and mistreatment were not dealt with by the employer to his satisfaction, he gave an interview outlining his complaints, which was reported in the newspaper. He was also interviewed on a radio station on the same matters, as well as other matters critical of management. In addition, he demonstrated in public wearing a placard which was critical of Revenue Canada and the Liberal government, and his protest was covered by television where he was quoted as criticizing the government's tax collection policy. He was terminated for releasing confidential information to the public and for publicly criticizing his employer by making untruthful and dishonest allegations against the Agency.

A core complaint of the public servant was that the Agency had demonstrated a double standard in its treatment of certain employees who had used the e-mail system to distribute offensive jokes. Whereas his manager had received only an oral reprimand for such behaviour, six non-management employees had received two-day suspensions.

In its reasons for decision (Scott v. CCRA, 2001 PSSRB 82), the Public Service Staff Relations Board noted that the public servant's argument was not that his public criticism was within the first exceptions of Fraser (illegal acts or policies that jeopardized life, health or safety), but that there was "public concern in the way the e-mail system at Revenue Canada was being used", as it is meant to convey sensitive taxpayer information, "even if it was not of the same magnitude as the health concern raised in the Haydon 2001 decision. The evidence was that there was media interest in the allegations of a double standard by [the public servant] as several news stories and editorials covered this topic. Did this media interest mean that [the] allegation raised a legitimate public concern requiring a public debate as stated in Haydon No. 1?" (paras. 76-7).

After reviewing the evidence, the Board concluded that "This evidence does not support the allegations of a double standard and therefore does not raise a legitimate public concern requiring a public debate. I reviewed the whole evidence presented at this hearing and found no important public issue as in Haydon No. 1" (para. 77). The Board concluded that the public servant's "public criticism did not meet the test set out in Fraser and was not within the broader notion of public concern in Haydon. [He] engaged in a highly visible attack and displayed a lack of loyalty to his employer that was inconsistent with his duties" (para. 83). His discharge was held to be the appropriate disciplinary measure.

In Haydon No. 2, the Federal Court ruled that the Health Canada scientist's critical statements (about the appropriateness of a ban on the importation of Brazilian beef) did "not involve public interest issues of the same order as in Haydon No. 1. They [did] not address pressing issues such as jeopardy to public health and safety (or Government illegality)" (para. 69).

In another Federal Court decision (Stenhouse v. Canada (Attorney General), [2004] F.C.J No. 469,("Stenhouse") , the court relies on the qualifications in Fraser. It quotes at length from Haydon No. 1 and its "issues of legitimate public concern" criterion (paras. 33-34), but did not apply it in articulating the reasons for judgment.

In the recent Read decision, the Federal Court closely examined the reasons in Fraser and Haydon No. 1, pointed out that the public servants' criticisms in the latter case fell within the jeopardy to life, health or safety qualification of Fraser, and noted the statement in Fraser that that judgment's listing of three qualifications did not purport to set out an exhaustive list. In a key finding, the Federal Court concluded: "I do not find that legitimate public interest at large is an exception to the duty of loyalty owed by an employee to his or her employer" (para.109). In the most recent decision on point, Chopra v. Canada (Treasury Board), 2005 FC 958, ("Chopra No. 2"), the Federal Court stated that it was "not persuaded that [Haydon No. 1] did recognize a further exception. [Its] use of general words, 'matters of legitimate public concern'...were intended only as a general description underlining the exceptions already established in Fraser" (para. 27).

These explicit disapprovals by the Federal Court, especially in light of the preceding cases mentioned above, appear to invalidate the "legitimate public concern" criterion.

Policy disagreement

Public criticism motivated by a general disagreement over policy rather than revealing instances of illegality or threat to life, health or safety may not meet the qualifications in Fraser, and may be subject to disciplinary action.

This was the conclusion of the Federal Court in Stenhouse. In that case, an RCMP officer released various confidential documents detailing the RCMP's strategy and resource allocation for combating outlaw motorcycle gangs to an author, who subsequently published the information in a book. After characterizing the first two qualifications in Fraser (instance of illegality or threat to life, health or safety) as the "whistle-blower" defence (para. 32), the Court concluded that the disclosure of confidential documents by the RCMP officer did not fall within this defence.

"While the freedom of public servants and, in the present case, members of the RCMP, to speak out is protected in common law and by the Charter, the 'whistle-blowing' defence must be used responsibly. It is not a license for disgruntled employees to breach their common law duty of loyalty or their oath of secrecy. In this case, the confidential documents disclosed by [the RCMP officer] reflected his disagreement with confidential RCMP policy on the allocation on the allocation of resources to fight crime. The documents do not disclose either an illegal act by the RCMP or a practice or policy which endangers the life, health or safety of the public. The RCMP policy at issue involves the allocation of ...resources to fighting different types of crime - a policy with which [the RCMP officer] disagreed, but a confidential policy properly decided by senior RCMP management who know and understand the 'big picture' of crime in Canada. Accordingly, while the Court recognizes the important objectives served by the availability of the 'whistle-blowing' defence, the Court agrees that it does not apply in the present circumstances" (para. 39).

Attribution of inappropriate motives

A public servant's public attribution of inappropriate or questionable motives to government action may be a deciding factor in determining that the duty of loyalty is breached.

In Chopra No. 2, the public servant, a scientist with Health Canada, was suspended for five days without pay as a result of statements to the media which were critical of his department's decision to stockpile drugs against a possible terrorist attack taken shortly after the attacks of September 11, 2001.

The statements included the following: "Stockpiling antibiotics against a possible terrorist attack only looks good for the Minister of Health...to say 'We are prepared'. I think it's just media hype and unnecessarily scaring people, saying 'Oh something is coming'. Nothing is coming". A further statement was: "The department feels encouraged by the war, now it is time to hit at people they think are vulnerable" (statements are quoted at para. 8).

In dismissing the judicial review application to set aside the decision of the Public Service Staff Relations Board upholding the five-day suspension, the Federal Court stated that "in the circumstances of this case, Dr. Chopra had breached the duty of loyalty owed by him as a public servant, by his conduct in expressing his opinions and attributing inappropriate motives to the Minister and his department" (para. 44).

Duty of Loyalty: a maturing concept

The preceding analysis of judicial decisions indicates that applying the principles, qualifications and relevant factors of the duty of loyalty can be challenging in certain circumstances. But the duty of loyalty as described by judicial decisions is sufficiently clear to provide guidance to the government as employer and individual public servants in most situations. As the Federal Court stated in Haydon No. 1: "The duty of loyalty is a well-known and long-accepted legal principle which provides an intelligible standard by which to measure an employee's conduct. I accept that it may present some difficulty in its application to a specific situation, however, difficulty in interpretation cannot be equated with the absence of an intelligible standard" (para. 75)

The fact that the application of the duty of loyalty may be challenging in some cases is a reflection of the challenge inherent in balancing such fundamental interests as an impartial public service and public servants' freedom of expression, especially in an organization as large and complex as the public service of Canada. Because of the importance of these interests, it can be expected that further disagreements as to the appropriate balancing will arise. A number of cases are the subject of litigation at the time of preparing this text. The resulting judgments can be expected to further clarify and deepen the meaning of the duty of loyalty.

Summary

The principles, qualifications and factors emerging from these court judgments on the duty of loyalty, including a decision of the Supreme Court of Canada, can be summarized as follows.
The duty of loyalty owed by public servants to the Government of Canada encompasses a duty to refrain from public criticism of the Government of Canada.
Failure to observe the duty of loyalty may justify disciplinary action, including dismissal.
However, the duty of loyalty is not absolute, and public criticism may be justified in certain circumstances.
In determining whether any particular public criticism is justified and therefore not subject to disciplinary action, the duty of loyalty must be balanced with other interests such as the public servant's freedom of expression.
Three situations in which the balancing of these interests is likely to result in an exception being made to the duty of loyalty are where:

the Government is engaged in illegal acts;

Government policies jeopardize life, health or safety; or

the public servant's criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.

Criticism may impair a public servant's ability to perform 1) his or her specific job or 2) to perform any public service job (i.e. suitability to remain in the public service), and hence justify disciplinary action. Public perception of that ability is as important as actual ability. An inference of impairment can be drawn in both cases, based on the principles and qualifications set out above, without the need for direct evidence.

Criticism that is not related to the job or department of the public servant may still be found to be subject to the duty of loyalty.