Articles of Interest

Case Law on the Duty of Loyalty of Public Servants

by RCMP External Review Committee Staff
June 2002

In D-076, the Committee considered several court decisions in Canada and the U.S.A. concerning the duty of loyalty of government employees. The following two decisions of the Supreme Court of Canada were cited by the Committee in its review of the appeal. Also cited was a decision of the Federal Court of Canada summarized below.

Fraser
(Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455)

This case was decided in 1985 by the Supreme Court of Canada. Mr Fraser was a manager at the Revenue Canada office in Kingston. He publicly criticized the federal government's policies concerning the implementation of the metric system and introduction of the Canadian Charter of Rights and Freedoms. Over time, his criticisms became very public and increasingly vitriolic. For his actions, he was eventually dismissed.

The case was not decided on the basis of the Charter because the facts of the case predated the coming into force of the Charter. The Supreme Court held that when dismissal is considered for a public servant who has expressed very critical views of the Government, the proper legal balance to achieve is between (I) the right of an individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, as a federal public servant, to fulfill properly his or her functions as an employee of the Government of Canada.

The Court held that some speech by public servants on public issues is permitted. An absolute prohibition would not be consistent with the deep-rooted principles of robust public discussion in a democratic society, with the size of the public service, or with plain common sense. The Court added that:

... 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 ability 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 the end, other interests must be balanced against the right to free speech, including the duty of loyalty to the employer and the ability of the public servant to do his or her job. Mr Fraser lost his appeal and his dismissal from the public service was therefore upheld.

Osborne
(Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69)

In this case, a group of federal public servants wanted to participate in various political activities. At the time, the applicable legislation provided that a public servant was prohibited from partisan political expression and activity under threat of disciplinary action, including dismissal from employment. They challenged the legislation on the grounds that it violated their freedom of expression and of association under the Charter.

The Supreme Court held that the prohibition was not a reasonable limit on freedom of expression within the meaning of s. 1. While recognizing the legitimate objective of having an independent and impartial public service, the Court concluded that it had not been shown that the severe restriction on public servants' freedom of expression was necessary to attain that objective. The Court observed that "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".

Haydon
(Haydon v. Canada, [2000] 2 F.C. 82)

This case was decided in 2000 by the Federal Court of Canada, Trial Division. The government did not appeal the ruling. The case concerns a reprimand that was administered to two drug evaluators within Health Canada because they had granted a media interview in which they criticized the drug approval process in their department. Both employees had previously tried to raise, with their supervisors, their concerns about the safety of the drug approval process, particularly bovine growth hormones, but their concerns were not heeded. Eventually, they granted a television interview to publicly voice those concerns. Following that interview, both were reprimanded for breaching the duty of loyalty owed to their employer.

One of the issues before the Court was whether the duty of loyalty was a reasonable and justifiable limit on an employee's freedom of expression guaranteed under the Charter . The Court cited Fraser with approval and concluded that the common law duty of loyalty is a reasonable limit on freedom of expression, within the meaning of section 1 of the Charter but that there are exceptions.

The Court then examined the circumstances of the two employees to decide if their public declarations fell within the exceptions to the duty of loyalty, as outlined in Fraser. The Court found that the issue of the safety of growth hormones was a "legitimate public concern requiring a public debate" and that "[t]he common law duty of loyalty does not impose unquestioning silence."

An important issue for the Court was the fact that the applicants had previously raised their concerns with their superiors before they "went public". The Court stated: "As a general rule, public criticism will be justified where reasonable attempts to resolve the matter internally are unsuccessful."

The applicants therefore were successful in having the discipline administered against them revoked.

These three cases show that while public servants have a clear duty of loyalty to their employer, that duty is not absolute. And, as the Committee pointed out in D-076, the duty of loyalty applies to public servants and members of the RCMP alike.