Executive Summary: Key Legal and Evidentiary Issues

• Procedural fairness obligations under the Public Interest Disclosure (Whistleblower Protection) Act were the central issue on appeal.
   
• Witness and whistleblower identity protection had to be weighed against the respondent's right to know and respond to the case against her.
   
• Application of the five Baker factors determined whether the Commissioner's chosen procedure met the required standard of fairness.
   
• Bias allegations rested on the observation that the initiating disclosure used language mirroring the statute itself.
   
• Substantive reasonableness turned on whether the Commissioner adequately considered alternative mechanisms before investigating.
   
• Quashing of the Commissioner's report by the reviewing judge was ultimately overturned on appeal.
   

Facts of the case

Mary Lynne Campbell was appointed superintendent of the Sturgeon School Division in July 2018. In May 2021, a whistleblower submitted a disclosure under PIDA alleging that Campbell had grossly mismanaged employees through a pattern of behaviour indicating a problem in the Division's culture relating to bullying, harassment, or intimidation, contrary to section 3(1)(c)(iii) of PIDA. An investigator interviewed 34 current and former Division employees, none of whom were told Campbell was the alleged wrongdoer. Campbell went on medical leave in October 2021 and gave notice of her intention to retire in 2022. The Commissioner's office provided her with an Investigation Summary and, later, a Supplemental Investigation Summary, both of which aggregated witness evidence while "genericizing" identifying details to protect the whistleblower and witnesses. Campbell, through counsel, submitted a lengthy paragraph-by-paragraph response but argued she could not fully answer the allegations without knowing who had made them. On December 28, 2022, the Commissioner issued a report finding Campbell had committed wrongdoing under section 3(1)(c)(iii) of PIDA, though he declined to recommend corrective measures because she had already retired. Campbell sought judicial review, and the reviewing judge quashed the report for breach of procedural fairness, without ruling on her additional arguments about bias and unreasonableness. The Commissioner appealed.

Policy and legislative provisions at issue

The appeal centred on the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, c P39.5. Section 3(1)(c)(iii) defines "gross mismanagement" of employees as deliberate conduct showing reckless or wilful disregard for proper management, evidenced by a systemic pattern indicating a cultural problem of bullying, harassment, or intimidation. Section 18(2) requires investigations to be conducted "as informally as possible," while section 18(3) requires the Commissioner to ensure the right to procedural fairness and natural justice is respected for those making disclosures, those alleged to have committed wrongdoing, and witnesses. Section 29(3) permits the Commissioner to disclose personal information only where, in his opinion, the public interest in doing so clearly outweighs the potential harm. Section 5(2)(h) requires chief officers to maintain procedures protecting the identity of those involved in the disclosure process. Section 52(1) contains a privative clause barring review of Commissioner decisions except on jurisdictional grounds, though the Court found it unnecessary to resolve that clause's effect since the outcome would be the same either way. Sections 19(1) and 19(1.1) address whether the Commissioner must consider alternative mechanisms before investigating a disclosure of gross mismanagement.

Reasoning and analysis

The Court applied the five factors from Baker v Canada (Minister of Citizenship and Immigration) to determine the content of the duty of procedural fairness owed to Campbell. On the nature of the statutory scheme, the Court held the reviewing judge had isolated select features of PIDA while ignoring its core purpose of protecting whistleblowers and witnesses, which supports maintaining confidentiality where possible. On the nature of the decision, the Court found a Commissioner's report does not resemble a judicial or professional discipline decision, since it carries no binding recommendations and no power to sanction. Regarding the importance of the decision to Campbell, the Court found no basis for the reviewing judge's conclusion that reputational harm was "inestimable," noting the report was not public and disciplinary action was never a real risk given her retirement. Legitimate expectations were conceded by both parties to be inapplicable. On the Commissioner's choice of procedure, the Court held his decision to protect witness identities was entitled to significant deference, given his statutory authority and expertise in balancing competing interests. Turning to the audi alteram partem rule, the Court distinguished the cases Campbell relied on, particularly Marchand and Chapman, finding instead that the circumstances more closely resembled Di Biase, where withholding identities did not undermine the ability to respond meaningfully. The Court concluded Campbell knew the substance of the case against her and had responded extensively, even without knowing witnesses' identities. The Court also rejected Campbell's further arguments regarding privileged documents, the "gist" of excluded evidence, time to respond, the absence of an oral hearing, and reliance on the investigator's credibility assessments. On bias, the Court declined to draw a negative inference from the whistleblower's use of statutory language in the original disclosure form. On reasonableness, the Court found the Commissioner's reasons for proceeding despite sections 19(1) and 19(1.1) were transparent, intelligible, and justified.

Ruling and overall outcome

The Court of Appeal allowed the appeal brought by the Commissioner, finding that Campbell had received the degree of procedural fairness to which she was entitled and that the Commissioner's report was substantively reasonable. As a result, the Commissioner's report finding Campbell had committed wrongdoing under section 3(1)(c)(iii) of PIDA stands. The decision does not address or specify any monetary award, costs, or damages.