Appearances:

   David Yazbeck, counsel, for the grievor;

   Raymond Piché, counsel, for the employer.

¶ 1      This decision follows a hearing into a grievance referred to adjudication under paragraph 92.(1)(b) of the Public Service Staff Relations Act (PSSRA) by Dr. Shiv Chopra ("the grievor") relating to a five-day suspension.  Dr. Chopra occupies a position of Drug Evaluator (VM-04), Human Safety Division, Bureau of Veterinary Drugs, Health Protection Branch, Health Canada.

¶ 2      The reasons for this suspension are set out in a letter dated August 11, 1999, which I reproduce in full (Exhibit E-1):

¶ 3      The employer produced four witnesses, following which Dr. Chopra testified on his own behalf.

¶ 4      The facts are simple.  Both parties agree that Dr. Chopra pronounced, at a public conference, the words that are set out in the letter of suspension (Exhibit E-1).  The disagreement lies in Dr. Chopra's entitlement to utter them publicly without incurring reprisal.  The employer is of the view that Dr. Chopra exceeded the limits of his freedom of expression, whereas Dr. Chopra is of the view that he remained within those limits.

¶ 5      The employer's evidence can be summarized as follows.

¶ 6      The National Capital Alliance on Race Relations (NCARR), of which Dr. Chopra was the past president, filed a complaint with the Canadian Human Rights Commission (CHRC) alleging discrimination by Health and Welfare Canada (now Health Canada) against persons who are visible minorities employed by Health Canada contrary to section 10 of the Canadian Humans Rights Act (CHRA).

¶ 7      A Canadian Human Rights Tribunal ("the Tribunal") found, on March 19, 1997, in favour of the complainant (Exhibit E-10) and ordered Health Canada to implement a special corrective measures program consisting of 7 permanent corrective measures and 17 temporary corrective measures.

¶ 8      According to Lucille Marleau, who at the relevant time was the Health Canada manager responsible for the implementation of the Tribunal's decision (Exhibit E-10), Health Canada drafted quarterly reports (Exhibits E-11 to E-18) on the on-going implementation of the order and sent these reports to the NCARR and to the Professional Institute of the Public Service of Canada (PIPSC) for their comments. In addition, the PIPSC and the Public Service Alliance of Canada (PSAC) had representatives on the internal review committee set up as a result of the order.  Regular presentations on the implementation of the order were made at the national union-management consultation committee.  Draft copies of human resources policies, which were in the process of being developed as a result of the order, were sent to the bargaining agents.

¶ 9      In the wake of the order (Exhibit E-10), there resulted the establishment of an internal review committee and the development of an action plan to develop policies and training programs within Health Canada.

¶ 10      Meetings were held with the CHRC.  One year after the order (Exhibit E-10), the CHRC expressed, in its annual report of 1998 (Exhibit E-17), the view that the Department had "already implemented most elements of the tribunal's order, demonstrating that, once committed to action, a federal agency can quickly achieve improved results".

¶ 11      The Deputy Minister of Health Canada sent e-mails to employees on the implementation of the order and ensured that information sessions were held with staff.  An internal newsletter containing articles on the subject was distributed to all employees.

¶ 12      On March 19, 1998, Health Canada organized a forum on employment equity.  This forum was attended by guest speakers from inside and outside the Public Service, by representatives of the CHRC and by public servants, some of whom were members of the NCARR.  During this meeting, Dr. Chopra made the comment (Exhibit E-19) that "nothing was happening" at Health Canada and that the NCARR was considering filing a contempt of court challenge against Health Canada as well as against the Public Service Commission and Treasury Board.  Ms. Marleau was stunned.  Firstly because on March 3, 1998, a meeting had been held with the NCARR to discuss the first quarterly report (Exhibit E-11) and no such comment had been forthcoming.  Secondly, she felt that she had spent a lot of time and energy on the implementation of the order and that Dr. Chopra's statement was unfair. Health Canada sought clarification (Exhibit E-19) from the NCARR on Dr. Chopra's comment and was reassured when the NCARR replied (Exhibit E-19) that "...it was premature to take action based solely on the first quarterly report..." and that a letter would be sent to Health Canada before the NCARR took any legal action.

¶ 13       One year later, that is on March 25 and March 26, 1999, the Department of Canadian Heritage held a meeting on employment equity and invited, among others, Health Canada representatives to make a presentation.

¶ 14      Ms. Marleau and Dr. Chopra were both speakers: Ms. Marleau as a representative of Health Canada (Exhibit E-22) and Dr. Chopra as the President of the Federation of Race Relations Organizations, Ontario (Exhibit E-49). According to Ms. Marleau, there were approximately 150 people in the room, mostly from Heritage Canada but also from other departments.

¶ 15      Again Ms. Marleau was surprised to hear Dr. Chopra make a statement similar to that of March 1998 to the effect that "nothing was happening in Health Canada".  She was doubly surprised since there had been ongoing discussions with the NCARR since the issuance of the Tribunal's order, quarterly reports had been filed with the CHRC and both institutions appeared satisfied with the progress made by Health Canada with the implementation of the order.  In addition, two days prior to Dr. Chopra's declaration (and for which he received the five-day suspension at issue here), Dr. Henry Pau, Chairman of the Employment Equity Committee of the NCARR, had authored a progress report (Exhibit E-20) in which he stated that "[I]n respect of the first year of compliance with the Tribunal Order, NCARR is satisfied that Health Canada has made a serious effort and has achieved reasonable progress."

¶ 16      Finally, further progress had been made in the year that followed Dr. Chopra's initial declaration in March 1998.

¶ 17      As confirmation of the efforts made by Health Canada to implement the Tribunal's order, Ms. Marleau produced a compilation (Exhibit E-23), which she drafted, of Health Canada's accomplishments and a report (Exhibit E-21) (March 2000) by the Task Force on the Participation of Visible Minorities in the Federal Public Service.

¶ 18      Ms. Marleau acknowledged, in cross-examination, that people can have different views on whether enough was being done to ensure progress in matters relating to employment equity and racial discrimination.  The remarks (Exhibit E-9) made on March 25, 1999 by Alix Hector, Chair of the Committee for Equal Access and Participation, Canadian Heritage, were pointed out to her.  They read as follows:

¶ 19      Ms. Marilyn Février, the Acting Head of Policy, Development and Communications, Human Resources, Health Canada, who was present in the room when the declaration was made, confirmed that on March 26, 1999 Dr. Chopra made the comment which he is alleged to have made (Exhibit E-2).  Ms. Février interpreted Dr. Chopra's comments as being related to the implementation of the Tribunal's order and even more so inasmuch as on that occasion Dr. Chopra alluded to Robert Joubert, who had been scheduled to speak on the previous day on the implementation of the order (but who, in fact, did not speak).  Ms. Février disagreed with the proposition that Dr. Chopra was referring to racism in general.

¶ 20      Ms. Février was upset to hear Dr. Chopra's declaration because she felt that he was casting doubt on her efforts and everyone else's in the Department as well as depicting Mr. Joubert as a liar, although on the latter point she acknowledged that there could be more than one interpretation.

¶ 21      The President of the NCARR, Rubin Friedman, testified at some length on the relationship between the NCARR and Health Canada following the Tribunal's order.

¶ 22      As for Dr. Chopra's impugned declaration, Mr. Friedman was of the opinion that the declaration should be appreciated in light of Dr. Chopra's intent, since the words which he used could be viewed differently depending on whether he was referring to the situation of racism in general at Health Canada or only to the implementation of the Tribunal's order.  In the latter case, Mr. Friedman was of the view that "something had happened" following the order.  On the other hand, issues of racism in the Public Service or at Health Canada were still not resolved in March 1999, or at the present time (i.e. Mr. Friedman's testimony).  Mr. Friedman was of the view that Dr. Chopra may have been referring to general progress in the Department and not to the Tribunal's order.  As for contempt of court remedies following the Tribunal's order, according to Mr. Friedman, they were never ruled out entirely.  Finally, Mr. Friedman agreed that "in the first two years of compliance, Health Canada not only met (with the exception of one minor gap) but exceeded many of the targets set" in the order (Exhibit E-21, page 33).

¶ 23      Finally, it would appear from Hugh Hards' (Senior Human Resources Advisor) testimony that a decision was made to suspend Dr. Chopra on the basis of the four specific lines extracted from the context of his entire speech. The Department concluded that in uttering those four lines, Dr. Chopra was referring to the implementation of the Tribunal's order.  Mr. Hards also acknowledged that since the Federal Court had quashed a previous letter of reprimand (Exhibit E-38, page 2), there was no other disciplinary measure on Dr. Chopra's file save the five-day suspension.

¶ 24      Dr. Chopra's evidence can be summarized as follows.

¶ 25      On March 8, 1999, Dr. Chopra confirmed to the Conference Coordinator (Exhibit E-49) that he would be attending the Department of Canadian Heritage's conference on employment equity and that he would participate on a panel. On that same occasion, he forwarded a brief introduction to his presentation which he entitled "Racism in the Federal Public Service of Canada - 'Looking Forward'" (Exhibit E-49). His intention was to describe his personal experience as a member of a visible minority and to underline the need to revise several statutes, such as the PSSRA, the Public Service Employment Act (PSEA) and the CHRA.  In particular, Dr. Chopra deplored the fact that a public servant could not take a complaint of racism to the Public Service Staff Relations Board (PSSRB) under Article 44 of the PIPSC's collective agreement and that he had to proceed before the CHRC where, according to Dr. Chopra, most cases are dismissed and complainants do not have the benefit of union support as they do before the PSSRB.  He wanted to express his belief that there existed serious legislative problems that would have to be corrected if racism was to be countered.  By way of example, he wished to point out that, if the Tribunal's order was not implemented in its entirety at Health Canada, it would be an indication that the Government was not serious about removing racism from the Public Service.

¶ 26      Dr. Chopra admitted having made the impugned declaration (Exhibit E-2, page 18).  His intended meaning was to express his own perception that nothing was happening at Health Canada to eliminate racism.  He denied having called Mr. Joubert a "liar" and asked that his comments be read in the context of his complete speech as well as that of the conference and the questions that followed.  When he mentioned Mr. Joubert's name, he was under the impression that Mr. Joubert had spoken on the previous day.  He meant Mr. Joubert or one of his representatives.

¶ 27      At the time of his declaration, contempt of court proceedings had not been entirely ruled out by the NCARR.

¶ 28      Dr. Chopra attended the conference as the leader of an organization (Federation of Race Relations Organizations, Ontario) and not as a drug evaluator from Health Canada.  Although the program (Exhibits E-7 and E-9) identified him as being from Health Canada, this was not of his own doing.

¶ 29      Dr. Chopra is convinced that he was suspended for having testified a few weeks earlier before the Standing Senate Committee on Agriculture and Forestry (Exhibit E-50).

¶ 30      As a community leader, Dr. Chopra feels he has a responsibility to speak out for his constituents.  In addition, the elimination of racism is a public interest issue.  It is not acceptable to him that he only speak on this issue with the permission of Dr. Lachance, the Director of the Bureau of Veterinary Drugs.

¶ 31      Dr. Chopra still holds the view that, as far as the elimination of racism is concerned, "nothing is happening at Health Canada".  The fact that the Department spent money on holding sensitivity workshops after the issuance of the Tribunal's order does not, in his opinion, amount to the elimination of racism.  The fact that he has never received a promotion to a managerial level and that he uncovered, in 1992, a memorandum from the Director of Human Resources to the Director General making negative comments relating to visible minorities' cultural background as an impediment to their abilities in management, has done nothing to relieve his belief that he is working in a biased environment.

¶ 32      Dr. Chopra commenced employment at Health Canada in 1969 (Exhibit E-44).  He holds several degrees, including a Ph.D. in microbiology from McGill University as well as fellowships from the Medical Research Council Canada and the World Health Organization.  He is the recipient of numerous awards, including the Governor General's Award for outstanding community service.  He has written and published on several subjects, some pertaining to science, others to literature, religion and even poetry.  He has been very active within his community and has held positions with the following organizations: (1975-80) President, Indo-Canadian Community Centre, Ottawa; (1981-82) National Secretary, National Association of Canadians with Origins in India; (1982-83) Chairman, Media Committee, National Association of Canadians with Origins in India; (1981-84) Member, Mayor's Religious Advisory Council, City of Ottawa; (1982-86) Member, Citizens' Task Force on the "Future of Work (Year 2000)", City of Ottawa; (1985) Member, Citizens' Committee for Public Education; (1990-91) Chairman, Employment Equity Committee, National Indo-Canadian Council; (1990-96) Chairman, Workplace and Employment Equity Committee, National Capital Alliance on Race Relations, Ottawa; (1990-92) Vice-President, National Capital Alliance on Race Relations; (1992-94) Race Relations Director, Crime Prevention Council of Ottawa; (1992-94) President, National Capital Alliance on Race Relations; (1994-96) Vice-President, Federation of Race Relations Organizations, Ontario; (1996) President, Federation of Race Relations Organizations, Ontario.

¶ 33      Dr. Chopra testified at some length on his personal experience within Health Canada and on the basis for his conclusion that racism exists within the Department.  He also testified on the different complaints and grievances in which he was involved before several quasi-judicial tribunals as well as the Federal Court.  He is committed to the eradication of discrimination and racism.

Arguments

For the Employer

¶ 34      Counsel for the employer argued that the employer had discharged the burden to prove that Dr. Chopra had committed an infraction which warranted discipline.

¶ 35      Counsel underlined that the statement was not denied by Dr. Chopra and therefore the only responsibility left to the undersigned adjudicator is to determine if what was said constitutes a disciplinary infraction.

¶ 36      In the past, Dr. Chopra had received instructions regarding the statements he could make in public.  On this occasion, the audience was constituted mainly of public servants, although there were some outside speakers.  The audience was a special audience.  It was made up of people who have concerns with employment equity in the Public Service. Therefore, it was a very specialized conference.

¶ 37      Dr. Chopra is a well-known figure inside and outside Health Canada.  He has made several appearances on radio and television.  He was instrumental in bringing a case before the Human Rights Commission.

¶ 38      Dr. Chopra testified that he did not want to be identified as an employee of Health Canada when he attended the conference but rather as President of the Federation of Race Relations Organizations, Ontario (Exhibit E-49). However, counsel for the employer felt that it should be assumed that everybody knew that he worked for Health Canada.

¶ 39      Dr. Chopra's comments amount to a general statement that what was said or could have been said by Mr. Joubert is a lie.  He misled the audience and gave them the impression that Health Canada was refusing to implement the order of the Human Rights Tribunal and that the NCARR wanted to go to court.

¶ 40      Dr. Chopra does not have the right, despite what he thinks, to say everything that he feels and thinks against anybody.  In his speech, Dr. Chopra was expressing not his own opinion but the opinion of the NCARR.  Yet, it was never the position of the NCARR.

¶ 41      In his testimony, he tried to establish that he was not talking about the implementation of the order but rather about racism in Canada.  The decision of the Tribunal never ordered anyone to eliminate racism in the Public Service.  The CHRA prohibits discriminatory practices but it is not built around the concept of eliminating racism. Therefore, Dr. Chopra, who is a very sincere person, was sincere but he misled those who were listening to him.  His statement was not fair.  It did not represent what really happened.  It was a personal attack on Mr. Joubert and Dr. Chopra should accept the consequences of his statement.

¶ 42      What Dr. Chopra said amounted to saying that Mr. Joubert was a liar.  In fact, it was defamation.  When someone states something publicly, that person has the responsibility to prove the basis of his position.  Dr. Chopra did not try to explain the basis for what he said.  He made a general affirmation without statistics or facts.

¶ 43      It is clear from Dr. Chopra's attitude that he does not recognize the authority of the employer to control him in certain things.  The Federal Court decision in Haydon and Chopra v. Her Majesty the Queen et al. (Court files T-199-99 and T-200-99) does not give him a free ticket to say anything anywhere.  By using the word "lie" in his affirmation, Dr. Chopra implied that Mr. Joubert was a liar. Dr. Chopra should prove the veracity of what he said.  He was not expressing an opinion but rather alleging facts.  It was up to him to prove the facts on which he based his conclusion that a "lie" had been told.  There is no human right to misinform an audience.

¶ 44      Dr. Chopra only gave one side of the coin and to be fair he should have said that there were two sides to the coin and that the other party did not think the same as he did.  He was not informing his audience but rather misinforming his audience.  In addition, he was attacking Mr. Joubert's reputation.

¶ 45      His obligation of loyalty still exists as confirmed by the decision in Fraser v. Canada (Public Service Staff Relations Board) [1985] 2 S.C.R. 455; [1985] S.C.J. No 71.  The statement made by Dr. Chopra impaired his ability to work as a public servant.  The bargaining agent and the NCARR and the unions have recognized the serious efforts made by Health Canada to implement the Tribunal's order.  Even the CHRC concluded that the Department had made reasonable progress in implementing the order. Therefore, there is quite a difference between reasonable progress and "nothing" having been done as alleged by Dr. Chopra.  Even the NCARR was satisfied with the progress made (Exhibit E-43).

¶ 46      Dr. Chopra is still an employee of the Government and is being paid by the Government and he cannot say whatever he thinks.  It is clear that what Dr. Chopra wants is a free ticket to criticize his employer.  The grievance should be dismissed.

¶ 47      Finally, counsel for the employer analyzed the following cases: Arthur J. Stewart v. Public Service Staff Relations Board [1978] 1 F.C. 133; Haydon and Chopra v. Canada [2000] F.C.J. No. 1368; Grahn v. Canada (Treasury Board) (1987) (Court file A-749-83); Fraser (supra); and Leenen v. Canadian Broadcasting Corp. [2000] O.J. No. 1359.

For the Grieovr

¶ 48      Counsel for Dr. Chopra made the representations that follow.

¶ 49      This case is one of interpretation.  At no point has evidence been filed that the NCARR recognized that the order had been fully implemented.  Dr. Chopra was amply justified in making the statement which he made.  No defamation has occurred and Mr. Joubert has not grieved Dr. Chopra's statement.  In addition, Mr. Joubert was not called to testify.  If Mr. Joubert truly believed that he had been defamed, he would have given evidence on the impact of Dr. Chopra's declaration.  Even assuming that the undersigned adjudicator can entertain a defamation action, there is no evidence to suggest that Dr. Chopra was calling Mr. Joubert a liar.  Neither of the two witnesses called by counsel for the employer testified that Dr. Chopra had called Mr. Joubert a liar.

¶ 50      The evidence demonstrates that there was a continuing concern that the Tribunal's order was not being fully implemented. Mr. Friedman agreed that Dr. Chopra's statement could be interpreted in more that one way.  The employer's two witnesses could not accept that there was any other view than their own.  The employer made a decision concerning Dr. Chopra without having regard to the context in which he made his statement.

¶ 51      Dr. Chopra did not mislead the audience as to the NCARR's position and Mr. Friedman himself said that the NCARR never ruled out contempt of court proceedings.  There is nothing surprising in this since that would be the only course of action open to the NCARR were the order not implemented. The NCARR's case was highly adversarial and Health Canada fought this case very hard.

¶ 52      The submissions of counsel for the employer have no regard for context.  Even Mr. Friedman said that the NCARR never ruled out contempt of court proceedings.  There is no evidence that the NCARR was of the view that Dr. Chopra misrepresented their position.  Even if he had misrepresented their position, it would not be the business of Health Canada. Even the witnesses called by the employer did not affirm that Dr. Chopra had misrepresented the NCARR's position.

¶ 53      The two witnesses called by Health Canada were not disinterested witnesses.  It is worthy of note that the employer did not call disinterested people who sat in the audience.

¶ 54      It is not disloyal for a public servant to speak his personal view that racism exists in the department where he works.  Dr. Chopra has been struggling with the issues of racism for the past 10 years.  His comment cannot be compared to the long series of vicious attacks on the Government and its leaders in public, as was done in the Fraser (supra) case.

¶ 55      Dr. Chopra has done everything he could to get at this issue:  racism.  He did his own studies; he contacted the Public Service Commission, the Treasury Board, the CHRC; he wrote letters; he spoke to MP's; he joined the NCARR.  He tried to work within the system.  He went through the CHRC's mechanisms.  In fact, the Human Rights Tribunal agreed with him since it issued specific orders to the employer as a result of the NCARR's complaint.  By issuing measures to counter the discriminatory practices of the Department, the Tribunal, in effect, was telling the Department to get rid of racism.

¶ 56      Dr. Chopra's case falls within one of the exceptions set out in the Fraser (supra) case: that is, the Government engaging in illegal acts.  It is illegal for the Government of Canada to discriminate on the basis of race.

¶ 57      Dr. Chopra's ability as a worker has not in any way been diminished by his statement at the conference.

¶ 58      The letter of reprimand which Dr. Chopra had been given in the past is no longer part of his file and has been erased or set aside by the Federal Court (Court file T-199-99).  The earlier letters relating to Dr. Chopra's public pronouncements do not relate to a pronouncement on racism.  In addition, he made a comment similar to that which he made in March 1999 and yet he was not disciplined. Therefore, the employer condoned his statement.  In addition, Dr. Chopra made statements of a similar nature on many other occasions.

¶ 59      It should be remembered that Dr. Chopra did his own study after considering Treasury Board's analysis and he concluded that Treasury Board's conclusions were wrong.  He published his view in NCARR publications and expressed it in the context of the CHRA decisions.  No one ever sanctioned him for this. There was even a newspaper article insisting that racism existed in Health Canada and yet he was not disciplined for it (Exhibit E-42(a)).  Quite clearly, the Department was not concerned with what Dr. Chopra said in the past.

¶ 60      In addition, the Department was late in meting out discipline and on that basis alone the discipline should be erased.

¶ 61      This case is really about freedom of speech. People in this country are allowed to speak.  Although there are limits on freedom of expression broadly contained in the Fraser decision (supra), one has to consider if the comment made by Dr. Chopra was of public interest and regard has to be given to the context.

¶ 62      This Department has already been criticized for failing to look at the context in relation to this very person (see decision of Federal Court concerning latest reprimand).

¶ 63      An adverse inference should be drawn from the failure of the employer to call certain witnesses, two of which are Dr. Lachance and Mr. Joubert.

¶ 64      Counsel for the employer has tried to portray Dr. Chopra as an individual with a personal vindictive agenda who cannot be rehabilitated.  There is no evidence that supports that description of his character.  Dr. Chopra said what he said because of the community he represents and he felt it was his duty to speak out.  He could have used different words but he did not.  We know, even from the employer's witness, Ms. Février, that people could have had a different interpretation of Dr. Chopra's words than her own or the Department's.  What Dr. Chopra was really trying to say is that, despite the fact that the record looks good, his experience is that the record is lying.

¶ 65      Although the words used by Dr. Chopra might be viewed as harsh, what matters is what he meant.  Let us not forget that we are dealing with culpable behaviour. Dr. Chopra spoke from the heart and truly believes that nothing is being done within the Department.  His belief is justified by the record and it is vitally important to have a debate on this issue.  Even assuming that Dr. Chopra was wrong, discipline was not the proper response.

¶ 66      The grievance should be allowed and an order should be issued ordering that the costs of proceeding to fight this grievance be paid by the employer in order to send a message that the kind of behaviour adopted by the Department is unacceptable.  Section 21 of the PSSRA allows an adjudicator to make an order on costs, for indeed this case does not foster good employer-employee relations.

¶ 67      It is not appropriate to restrain a person's freedom of speech because one disagrees with him.  One has to examine the message which the Department is sending when it disciplines employees for talking fully and frankly of their personal experience with racism in the Public Service.  What the Department is saying is:  "Be quiet.  We don't want to hear from you, nor do we want others to hear from you." Discipline is unjustifiable.

¶ 68      Counsel for the grievor analyzed the following cases: Irwin Toy Ltd. v. Quebec (Attorney General) [1989] I S.C.R. 927; Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al. (1991), 125 N.R. 241; Haydon (supra); Fraser (supra); Laboucane (Board files 166-2-16086 to 16088); Pleau (Board files 166-2-22977 and 166-2-24137); Re University of Ottawa and International Union of Operating Engineers, Local 796-B (1994), 42 L.A.C. (4th) 300; Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1999), 78 L.A.C. (4th) 1; Re Canada Post Corp. and Canadian Union of Postal Workers (1992), 25 L.A.C. (4th) 137; McKinnon v. Ontario (Ministry of Correctional Services), [1996] O.H.R.B.I.D. No. 13; Lucas (Board file 166-2-22752), Public Service Alliance of Canada v. Department of National Defence, [1996] 3 F.C. 789; Chouinard (Board file 166-2-14290) and Oliver (Board files 166-2-14579 and 14580).

Rebuttal

¶ 69      In reply, counsel for the employer stated that this case does not relate to freedom of expression and that Dr. Chopra had never been disciplined in the past for what he had said or written.  Counsel acknowledged that Dr. Chopra has a right to think and that this right is protected by the Charter.

¶ 70      Dr. Chopra was not disciplined, according to counsel, for what he thinks or for what he believes, but rather for what he said.  What he said was defamation against Mr. Joubert.  According to counsel, Dr. Chopra misled the audience as to what was happening at Health Canada and as to the position of the NCARR.  Defamation is not an exception set out in the Fraser (supra) case.  Misinformation and defamation are two forms of expression that are not protected by the Charter.

¶ 71      One should not analyze the situation from Dr. Chopra's point of view, nor ask what was his intention or his own context, but rather one should consider the context of the statement:  do not ask why he said what he said but rather ask what did he say and what would a reasonable listener conclude.

¶ 72      In March 1998, Dr. Chopra did not say someone was a liar.  However, in 1999, what he said amounted to saying that Mr. Joubert was a liar.  Although the exceptions set out in Fraser are not exhaustive, defamation cannot be a new exception.

¶ 73      As for costs, the PSSRB has already refused to grant costs.  It would not be a good policy to start awarding costs as in the present case.  Obviously, this case is not one of bad faith on the part of the employer.  Finally, it should be remembered that words can destroy.

Reasons for Decision

¶ 74      This grievance is granted.  The employer had the burden of proof but failed to establish that Dr. Chopra engaged in misconduct.

¶ 75      According to the letter of suspension, Dr. Chopra was disciplined for a statement which he made (Exhibit E-2) on March 26, 1999 at the "Annual Meeting:  Committee for Equal Access and Participation, Department of Canadian Heritage". This meeting was attended mostly by public servants.  Dr. Chopra was not disciplined for having been present at this meeting nor for having spoken at this meeting, but rather for the substance of his comments.

¶ 76      There were two speakers on the panel:  Dr. Chopra and according to a summary of proceedings (Exhibit E-9), a Dr. Karim.  Dr. Chopra spoke on racism; Dr. Karim on the progress of employment equity. The two were invited to share their personal conclusions on these subjects and presumably not simply to rubber-stamp the Government's efforts in these matters.  In fact, Dr. Chopra's evidence was that the purpose of his talk was to share his personal experiences.

¶ 77      I have considered Dr. Chopra's words and the context in which they were said (Exhibit E-2).  Dr. Chopra was alluding to racism and to the Canadian Human Rights Tribunal's implementation order (Exhibit E-10).  Both subjects were linked.  In either case, I have come to the conclusion that Dr. Chopra expressed a personal opinion.  In my view, he was entitled to do so and, in fact, the purpose of his presence on the panel was to express a personal opinion.  He was entitled to hold and express this opinion even if it was not shared by other persons in Health Canada.  In addition, he was entitled to hold this opinion even if to some people he was wrong. There are very few absolute truths, if any.  This is particularly true in matters of racism, discrimination and employment equity.

¶ 78      Like other individuals living in Canada, public servants are entitled to hold opinions and to express them publicly within certain limits.  They have the right to express themselves publicly on issues such as, for instance, employment equity, equality before the law and the right to protection of the law without discrimination based on race, national or ethnic origin and colour.  Those issues relate to rights which are protected by provincial and federal human rights legislation and reflect fundamental Canadian values that, as such, extend beyond the boundaries of the employment relationship.

¶ 79      Dr. Chopra has chosen to publicly express his opinion on a matter that is particularly abhorrent to Canadian society as reflected in the laws passed to counter it: racism.  In his view, racism explains the slow progress of visible minorities in matters of employment equity.  It should be noted that Dr. Chopra's allegations and views do not constitute evidence that racism exists within the Department. They remain allegations and opinions.

¶ 80      Although some may have found Dr. Chopra's views hurtful and others disappointing, Dr. Chopra was entitled to hold them.  His words may have been stark, but he was still entitled to utter them.

¶ 81      In matters of opinion and expression of opinion, I believe that I, as a member of a federal labour board and an adjudicator appointed under the PSSRA, should be careful in curtailing Dr. Chopra's basic right to express his opinions when that right is exercised with respect to the possible existence of racism and discrimination.  I believe it is my obligation to endeavour to render rulings which are consistent with values protected by the Canadian Human Rights Act and the Charter.

¶ 82      Although it is desirable to be sensitive to the sensitivities of others, including one's employer, co-workers and colleagues, there are situations where the stakes are too high for an individual to remain silent as a matter of consideration.  It seems to me that the existence or non-existence of racism within a system is one such situation.

¶ 83      Dr. Chopra is a member of a visible minority and has been a public servant for some 30 years.  His curriculum vitae is impressive.  He holds numerous degrees, fellowships and awards, including the Governor General's award for outstanding community service  (Exhibit E-44), yet he has never been promoted.  The quality of his work has never been questioned.  Rightly or wrongly, he has acquired the conviction that his being part of a visible minority is not irrelevant to his lack of advancement in the Public Service. As the years have gone by, he has become more involved in matters of human rights and has become an activist.

¶ 84      Dr. Chopra has held several high-profile positions in organizations dedicated to the equality of visible minorities.  He has made personal observations and studies which have convinced him that racism does exist within Health Canada and that measures taken in general, as well as, as a result of the Human Rights Tribunal's implementation order, amount to "nothing" (Exhibit E-2).  In particular, he believes that "nothing" has been done following the Canadian Human Rights Tribunal order (Exhibit E-10) to truly ensure that visible minorities enjoy equity of employment.  In his view, the lack of equity in employment results from an overt or covert attitude of racism.

¶ 85      The evolution of Dr. Chopra's career within the Department, his personal experiences and his activities and observations in the field of human rights have determined his opinions.  Whoever we are, our opinions are shaped by many factors, not the least important of which is our experiences. Dr. Chopra's experiences have led him to hold the opinion he holds.  I am not saying that he is right or wrong.  I am saying that he is entitled to his opinion and to express it publicly.

¶ 86      As I have already said, Dr. Chopra's choice of words appears to have offended certain individuals within the Department.  I can understand that they view his words as particularly discomfiting.  They are certainly entitled to have their feelings. Those feelings can be validated inasmuch as following the order of the Human Rights Tribunal (Exhibit E-10), measures were taken by the Department to implement the specific measures ordered by the Tribunal.  It is certainly unpleasant to have one's efforts not be given the recognition that one believes they deserve.  Just as I am of the view that Dr. Chopra is entitled to hold the opinion that "nothing" is happening in the Department, I also hold the view that the representatives of the Department are entitled to their opinion that "something" is happening within the Department. Moreover, one can speculate that the Department's reaction to Dr. Chopra's words might have been less strong if Dr. Chopra had given some recognition, however small, to the inception of change as a result of the Department's implementation of the order.  Dr. Chopra chose not to do so.  In the end, one can only hope that in order to maintain their credibility, both Dr. Chopra and the Department strive for balance, the former in his choice of words when he expresses his views and the latter in the appropriateness of reacting to that choice of words with a disciplinary measure.

¶ 87      Having said this, because of the complexity and scope of the issue and the element of subjectivity involved in the perception and identification of the existence of racism, discrimination and employment inequity, there cannot be an absolute conclusion on these matters, absolute in such a way as to preclude an individual (or a Department) from forming and expressing an opinion.  Hence, in the greater scheme of things, I believe it is healthy for the Department, for employees within the Department, for the Public Service and for Canadian society as a whole, that all persons be free to express their differing views and to engage in public debate on these matters.

¶ 88      By clamping down on individuals who voice their opinions on fundamental issues such as the ones at issue in the instant case (racism; discrimination; employment equity), a department simply risks reinforcing the perception that there is validity to the claim that racism does exist within that department.

¶ 89      Having considered both the context in which Dr. Chopra made his remarks and the explanations he gave when he testified before me, I have reached the conclusion that Dr. Chopra holds the opinion that whatever measures were taken by the Department following the Tribunal's order (Exhibit E-10) are so insignificant as to amount to "nothing" and that to pretend otherwise would be a "lie".  He did not call Mr. Joubert a "liar", nor do I believe that he intended to call anyone (including Mr. Joubert) a "liar", but rather I believe that he intended to strongly denounce a situation as well as to attack the credibility and soundness of any opinion opposite to his.  He did not wish to be hurtful or malicious toward anyone, including Mr. Joubert, but rather he was expressing emphatically and forcefully his frustration at the lack of real change which he perceives within the Department. In addition, I note that Dr. Joubert did not testify and hence has not complained or confirmed before me that he has felt aggrieved or defamed by Dr. Chopra's remarks.

¶ 90      Dr. Chopra is not alone in making a negative assessment of the employer's record on matters of employment equity and racial discrimination.  Alix Hector, Chair of the Committee for Equal Access and Participation, Canadian Heritage, which organized the conference at which Dr. Chopra spoke, made the point in his welcoming remarks (Exhibit E-9, page 2) that "one of the major objectives of employment equity is to eliminate racial discrimination" and that "we are still waiting for concrete results".  "We have had enough studies and enough rhetoric about what needs to be accomplished." Although the words used by Mr. Hector are somewhat less categorical than Dr. Chopra's "nothing is happening", the common underlying theme is that the situation has not changed.

¶ 91      Dr. Chopra'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 (supra) recognizes that there are exceptions to the duty of loyalty. It enumerates those exceptions, although not exhaustively.  I am of the view that Dr. Chopra's comments constitute an exception to the duty of loyalty and that he was speaking on an "important public issue" (Haydon (supra)).  In my view, racism and employment equity are issues which transcend an individual's station in life and constitute "issues of public interest".

¶ 92      It is worthy of note that in Haydon (supra), Dr. Chopra, who was also a party in that case, made public comments on the drug review process within Health Canada.  If speaking out on the drug review process within Health Canada does not constitute misconduct on Dr. Chopra's part, as was found by Justice Tremblay-Lamer (and yet drug review is part of Dr. Chopra's responsibility), then, even less in the instant case do Dr. Chopra's public comments violate his duty of loyalty.

¶ 93      Finally, I would like to point out that just like other Canadians, public servants have the right to complain of racism and discrimination before the Canadian Human Rights Commission (CHRC).  (In fact, Dr. Chopra did just that.) Their complaints are heard in public hearings.  Therefore, it would be a strange result indeed if I were to say that it constitutes misconduct for a public servant to express his opinion at a public conference on the existence of discrimination within a department while that very same public servant has, by express provision of the law, the right to state the very same opinion at a public hearing before the CHRC.  It seems to me that the public is the public wherever it sits and if a public servant is not violating his duty of loyalty to his employer when he or she is complaining of racism and discrimination before the CHRC, then there is no logical reason to say that he or she is violating his or her duty of loyalty when he or she is complaining of discrimination in front of the public at a conference.

¶ 94      For these reasons, the grievance is granted.  The employer is ordered to rescind the suspension, to remit to Dr. Chopra the monies related to this suspension and to remove from Dr. Chopra's file all documents relating to this suspension.  Even if I had the jurisdiction to do so, no compelling considerations have been brought to my attention which would convince me to award costs to the grievor in this case.

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