Cadostin v. Canada (Attorney General)

Cadostin v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-01-31
Neutral citation
2020 FC 183
File numbers
T-732-19
Decision Content
Date: 20200131
Docket: T-732-19
Citation: 2020 FC 183
Ottawa, Ontario, January 31, 2020
PRESENT: Mr. Justice Gascon
BETWEEN:
CADOSTIN, MACKENZY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mr. Mackenzy Cadostin, seeks judicial review of a decision issued in April 2019 [Decision] by the Public Service Commission [Commission], finding that he had committed fraud in an appointment process within the federal public service. Following a thorough investigation undertaken pursuant to section 69 of the Public Service Employment Act, SC 2003, c 22 [PSEA], the Commission concluded that Mr. Cadostin had knowingly provided false references and misrepresented information about his current supervisor during an appointment process for a CO-1 position [CO-1 Appointment Process]. This was the second instance, over a period of about seven months, where the Commission found that Mr. Cadostin committed fraud to obtain a public service position.
[2] Mr. Cadostin submits that the Commission’s investigation process was flawed and breached the principles of procedural fairness as well as his rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], and that the Decision and corrective action ordered against him were unreasonable. Mr. Cadostin asks the Court to issue the following orders: that all decisions and corrective action of revoking his CO-1 position be quashed and set aside; that his position be re-established, along with all benefits and salary from the time of the revocation; that the Commission clears his name and his reputation with “everyone they sent their reports” to; and that damages and costs be awarded to him.
[3] The Defendant, the Attorney General of Canada [AGC], responds that Mr. Cadostin’s application should be dismissed since the Commission’s determination of fraud and the corrective action were reasonable, and the Commission’s process was procedurally fair, fell within its jurisdiction and was entirely compliant with the Charter.
[4] Four issues need to be determined by the Court in this application for judicial review: 1) did the Commission’s Decision fall within its jurisdiction; 2) were the Commission’s Decision and related corrective action reasonable; 3) was the Commission’s process procedurally fair; and 4) did the Commission’s Decision violate any of Mr. Cadostin’s Charter rights.
[5] For the reasons that follow, I will dismiss Mr. Cadostin’s application. In my view, it is clear that the Commission acted within its jurisdiction in undertaking the investigation on the CO-1 Appointment Process. I am also satisfied that the Decision and corrective measures imposed by the Commission were justified and intelligible, and that the ultimate finding of fraud was reasonable in light of the evidence assembled by the investigator and submitted to the Commission. The reasons detailed in the Decision and in the underlying investigation report demonstrate that the Decision is based on an internally coherent and rational chain of analysis and that it is justified in relation to the facts and law that constrain the Commission. Moreover, I conclude that the investigation and decision-making process followed by the Commission was procedurally fair, and that none of Mr. Cadostin’s alleged Charter rights were violated. There are therefore no grounds to justify the Court’s intervention.
II. Background
A. Factual context
[6] In January 2017, Mr. Cadostin applied for a CO-1 position with what is now Crown-Indigenous Relations and Northern Affairs Canada [CIRNAC]. At the time, he was employed by another federal government department, Agriculture and Agri-Food Canada, at the PM-1 level.
[7] Mr. Cadostin successfully completed a written examination and an interview for the contemplated position. In June 2017, he was asked by CIRNAC to provide three references, including his current supervisor. In response, Mr. Cadostin provided four references, but not his supervisor at the time, Mr. Mark De Luca. Mr. Cadostin did not tell CIRNAC that his supervisor was not among the four references he provided. He later explained that this exclusion was attributable to the fact that Mr. De Luca was harassing him at the time of the application. Three of the references provided by Mr. Cadostin were the same ones he used in another application he had made with Public Service and Procurement Canada [PSPC] in February 2017, as part of a different and separate appointment process for a position at the AS-4 level within PSPC [AS-4 Appointment Process].
[8] In August 2017, CIRNAC asked three of Mr. Cadostin’s references to fill out a reference template provided by CIRNAC [Templates]. The purpose of this request was to verify some essential qualifications required for the CO-1 position, namely, ability to work in teams, interpersonal skills and reliability. The responses provided by the three references to the verification questions were all positive. As a result, Mr. Cadostin was placed in a pool of qualified candidates, and he was ultimately appointed to the CO-1 position in March 2018.
[9] At the time of his appointment to the CO-1 position, an investigation was already underway at the Commission with respect to the AS-4 Appointment Process [First Investigation] in which Mr. Cadostin had used the same references as in the CO-1 Appointment Process. Further to verifications conducted as part of its own AS-4 Appointment Process, PSPC had raised concerns about the authenticity of the references provided by Mr. Cadostin in that process, and had referred Mr. Cadostin’s file to the Commission. The Commission had started the First Investigation in November 2017. In light of this on-going First Investigation, the Commission therefore decided to initiate a second investigation pursuant to its authority under section 69 of the PSEA, concerning the possibility that Mr. Cadostin had likewise provided false references in the CO-1 Appointment Process [Second Investigation]. In May 2018, after Mr. Cadostin had been awarded the CO-1 position, the Commission informed Mr. Cadostin by mail that it was commencing the Second Investigation with respect to the CO-1 Appointment Process, to determine whether he had committed fraud in that hiring process.
[10] Following the completion of the First Investigation, the Commission concluded in September 2018 that Mr. Cadostin had committed fraud in the AS-4 Appointment Process by knowingly submitting false information regarding his references. Mr. Cadostin brought an application for judicial review of that decision before the Court, which was dismissed by Madam Justice Walker in a judgment dated September 23, 2019 (Cadostin v Canada (Attorney General), 2019 FC 1198 [Cadostin]). Mr. Cadostin has now appealed this judgment to the Federal Court of Appeal.
B. The investigation
[11] The investigation for the CO-1 Appointment Process was conducted by Ms. Stéphanie Poitras [Investigator], who was also the appointed investigator in the First Investigation regarding the AS-4 Appointment Process. As part of her investigation, the Investigator deemed certain facts from the First Investigation, including witness testimony, to be relevant to her review of the CO-1 Appointment Process. Over the course of these two investigations, she considered documentary evidence surrounding the references provided by Mr. Cadostin, and she interviewed Mr. Cadostin on two separate occasions. She also interviewed Mr. De Luca as part of the First Investigation, as well as two officials from CIRNAC who participated in the CO-1 Appointment Process [CIRNAC Managers] as part of the Second Investigation.
[12] In October 2018, the Investigator gave Mr. Cadostin a factual report summarizing the relevant facts from her investigation [Factual Report]. She invited Mr. Cadostin to provide comments and submissions on the facts and issues set out in the Factual Report. Mr. Cadostin sent detailed comments in late November 2018. The Investigator considered the comments received from Mr. Cadostin and, in January 2019, she completed her investigation report [Investigation Report]. An amended version of the Investigation Report was prepared in February 2019.
C. The Investigation Report
[13] The central findings of the Investigation Report can be summarized as follows.
[14] First, with respect to Mr. Cadostin’s references, the Investigator noted the following points.
1) The Templates which were filled out by the three references contacted by CIRNAC in August 2017 contained numerous similarities, lacked crucial information regarding Mr. Cadostin’s employment history (such as dates and duration of employment), and failed to provide the references’ contact information (i.e., phone number or address).
2) The Investigator sent a Word document to Mr. Cadostin to obtain more information about his references, and she noticed that the document returned by Mr. Cadostin was last modified by the author “Proprio”, who happened to be the same author who had last modified the Templates provided by the three references.
3) At his initial interview with the Investigator as part of the First Investigation, which was held in late January 2018, Mr. Cadostin testified that he had never contacted his references after asking them to fill out the Templates. However, after receiving the factual report for the First Investigation from the Investigator, Mr. Cadostin produced numerous email communications between him and his references showing that he had filled out the Templates, allegedly at the request of the references. Mr. Cadostin thus admitted that he had completed the Templates himself. He was however unable to provide the original versions of these email communications from June, July and August 2017, and only provided the forwarded versions. The Investigator therefore could not confirm the authenticity of these emails.
4) All four references used by Mr. Cadostin in the CO-1 Appointment Process provided personal email addresses from free online email providers, including “mail.com”. A search on Mr. Cadostin’s browsing history of his personal computer showed that he had logged in to “mail.com” on July 12, 2017, the same date one of the references had sent his completed Template using his “mail.com” account.
5) The Investigator attempted to contact each reference in the summer of 2018 to verify their identity, but none of them was willing to assist or effectively cooperated. They either summarily refused by email, or ignored the Investigator’s request. None agreed to speak with the Investigator by phone.
6) The Investigator was unable to link the references to their alleged respective business or employer through independent research.
[15] The Investigator thus determined it improbable that authentic references used for a job application would all fail to provide vital information such as their coordinates or the dates and duration of employment of a candidate, and would all refuse to speak to an investigator. She found Mr. Cadostin’s testimony non-credible, contradictory and incoherent, and rejected his explanations regarding the references. She instead concluded that, on a balance of probabilities, the most likely explanation was that Mr. Cadostin had himself completed the Templates and had written all the emails originating from the email addresses of his alleged references. She therefore determined that, on a balance of probabilities and in light of the totality of the evidence, the references given by Mr. Cadostin were false.
[16] Second, the Investigator considered Mr. Cadostin’s failure to provide his current supervisor as a reference, despite being specifically asked to provide it. Further to her review of the evidence, the Investigator determined that Mr. Cadostin intentionally excluded Mr. De Luca as a reference to avoid a negative recommendation. The Investigation Report indicates that Mr. De Luca had explained in the First Investigation that he would not have provided a positive reference had Mr. Cadostin asked him for one. The Investigator thus determined that Mr. Cadostin provided false information in the appointment process by omitting to include his current supervisor as reference.
[17] In light of the above, the Investigator concluded that Mr. Cadostin had committed fraud within the meaning of section 69 of the PSEA. She adopted the definition of fraud as set out by the Federal Court of Appeal in Seck v Canada (Attorney General), 2012 FCA 314 [Seck]. This definition consists of two essential elements: 1) dishonesty, including the non-disclosure of important facts; and 2) deprivation or risk of deprivation. The Investigator found that Mr. Cadostin had been dishonest regarding both his references and Mr. De Luca, and that his behaviour compromised the integrity of the CO-1 Appointment Process, as CIRNAC had relied on these false references to place Mr. Cadostin in the pool of qualified candidates and to choose him for the CO-1 position.
D. The Commission’s Decision
[18] In February 2019, the Investigation Report was presented to the Commission in order to receive its approval to consult Mr. Cadostin regarding the report and the proposed corrective action. The Commission granted permission, and the Investigation Report and proposed corrective action were thus provided to Mr. Cadostin for his comments. Mr. Cadostin was informed that his comments would be given to the Commission for consideration prior to its final decision. As for the Factual Report, Mr. Cadostin again submitted extensive comments in response to the Investigation Report.
[19] On April 16, 2019, after evaluating Mr. Cadostin’s submissions on the Investigation Report, the Commission accepted the report and issued the Decision. The Commission noted that the investigation concluded that Mr. Cadostin had committed fraud in the advertised external CO-1 Appointment Process, by knowingly submitting false information during the reference verification. The Commission stated that it had considered all of the comments received but that they did not contain new information warranting a modification in the Investigation Report or in the corrective action used for consultation. The Commission thus ordered the following corrective measures: 1) the revocation of Mr. Cadostin’s CO-1 appointment at CIRNAC, following which Mr. Cadostin will cease to be employed in the federal public service; 2) a requirement that, for a period of three years from the signing of the Decision, Mr. Cadostin must obtain the Commission’s written approval before applying for any position within the federal public service; and 3) for a period of three years from the signing of the Decision, a letter advising of the fraud committed by Mr. Cadostin would be sent to the Deputy Head of the relevant employer, if Mr. Cadostin obtains work through casual employment within the federal public service without first notifying the Commission.
[20] This is the Decision challenged by Mr. Cadostin in the present application for judicial review.
E. Relevant statutory framework
[21] The Commission is responsible for safeguarding the integrity of the appointment process and the principle of merit in the federal public service, as described in the preamble and subsection 30(1) of the PSEA. More specifically, section 69 of the PSEA empowers the Commission to investigate potential fraud in an appointment process and to revoke an appointment and take appropriate corrective action where it is satisfied that fraud has occurred. Section 69 reads as follows:
Fraud
Fraude
69. If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may:
69. La Commission peut mener une enquête si elle a des motifs de croire qu’il pourrait y avoir eu fraude dans le processus de nomination; si elle est convaincue de l’existence de la fraude, elle peut :
(a) revoke the appointment or not make the appointment, as the case may be; and
a) révoquer la nomination ou ne pas faire la nomination, selon le cas;
(b) take any corrective action that it considers appropriate.
b) prendre les mesures correctives qu’elle estime indiquées.
F. Standard of review
[22] The Court has affirmed on numerous occasions that reasonableness is the standard of review applicable to the determination of whether fraud has been committed pursuant to section 69 of the PSEA, as it goes to the core of the Commission’s mandate of safeguarding the federal public service appointment process, and the application and interpretation of the provision fall within the Commission’s specialized expertise (Dayfallah v Canada (Attorney General), 2018 FC 1120 [Dayfallah] at para 34; MacAdam v Canada (Attorney General), 2014 FC 443 at paras 49-50). This was confirmed in the decision rendered by Justice Walker with respect to the AS-4 Appointment Process (Cadostin at para 20).
[23] That reasonableness is the appropriate standard has recently been reinforced by the Supreme Court of Canada in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], where the majority of the Court set out a revised framework for determining the standard of review with respect to the merits of administrative decisions (Vavilov at para 10). The majority of the Court in Vavilov articulated a new approach to determining the applicable standard of review, holding that administrative decisions should presumptively be reviewed on the reasonableness standard, unless either legislative intent or the rule of law requires otherwise (Vavilov at paras 10, 17). I am satisfied that neither of these two exceptions apply in the present case, and that there is no basis for derogating from the presumption that reasonableness is the applicable standard of review of the Commission’s Decision.
[24] The principles emphasized in Vavilov were drawn in large measure from prior jurisprudence, particularly Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] and its progeny. Although the present application was argued prior to the release of Vavilov, the footing upon which the parties advanced their positions concerning the reasonableness of the Commission’s Decision is consistent with the Vavilov framework. In these reasons, I have applied that framework in coming to the conclusion that the Commission’s Decision is reasonable; however, the result would have been the same under the Dunsmuir framework.
[25] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85; Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] at paras 2, 31). Vavilov’s revised framework for reasonableness requires the reviewing court to take a “reasons first” approach to judicial review (Canada Post at para 26). Where a decision-maker has provided reasons, the reviewing court must begin its inquiry into the reasonableness of the decision “by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” (Vavilov at para 84). The reasons must be read in light of the record as a whole and with due sensitivity to the administrative setting in which they were given (Vavilov at paras 91-94). However, “it is not enough for the outcome of a decision to be justifiable […] the decision must also be justified” (Vavilov at para 86).
[26] Before a decision can be set aside on the basis that it is unreasonable, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).
[27] An assessment of the reasonableness of a decision must be robust, but remain sensitive to and respectful of the administrative decision-maker (Vavilov at paras 12-13). Reasonableness review is an approach meant to ensure that the reviewing court only intervenes in administrative matters “where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13). It is anchored in the principle of judicial restraint and in a respect for the distinct role and specialized knowledge of administrative decision-makers (Vavilov at paras 13, 75, 93). In other words, the approach to be followed by the reviewing court is still one of deference, especially with respect to findings of facts and the weighing of evidence. Absent exceptional circumstances, the reviewing court will not interfere with an administrative decision-maker’s factual findings (Vavilov at para 125).
[28] Turning to the issues of procedural fairness, the approach to be taken has not changed following Vavilov (Vavilov at para 23). It has typically been held that correctness is the applicable standard of review for determining whether a decision-maker complies with the duty of procedural fairness and the principles of fundamental justice (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
[29] However, as rightly argued by counsel for the AGC, the Federal Court of Appeal has recently affirmed that questions of procedural fairness are not truly decided according to any particular standard of review. Rather, it is a legal question for the reviewing court, and the court must be satisfied that procedural fairness has been met. When the duty of an administrative decision-maker to act fairly is questioned or a breach of fundamental justice is invoked, it requires the reviewing court to verify whether the procedure was fair having regard to all of the circumstances (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Airport Workers Union v International Association of Machinists and Aerospace Workers, 2019 FCA 263 at paras 24-25; Perez v Hull, 2019 FCA 238 at para 18; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at para 54). This assessment includes the five, non-exhaustive contextual factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] (Vavilov at para 77). It is up to the reviewing court to make that determination and, in conducting this exercise, the court is called upon to ask, “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” (CPR at para 54).
[30] It is well recognized that the requirements of the duty of procedural fairness are “eminently variable”, inherently flexible and context-specific (Vavilov at para 77; Dunsmuir at para 79), and that they “[do] not reside in a set of enacted rules” (Green v Law Society of Manitoba, 2017 SCC 20 at para 53). The nature and extent of the duty will fluctuate with the various factual situations dealt with by the administrative decision-maker, as well as the nature of the disputes it must resolve (Baker at paras 23-27; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115). As the Federal Court of Appeal eloquently expressed it in CPR, “[n]o matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (CPR at para 56).
[31] Therefore, the real question raised when procedural fairness and alleged breaches of fundamental justice are the object of an application for judicial review is whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered the affected parties a right to be heard and the opportunity to know and respond to the case against them (Huang v Canada (Citizenship and Immigration), 2018 FC 940 at paras 51-54).
III. Analysis
[32] As was the case for the AS-4 Appointment Process, Mr. Cadostin is profoundly convinced that he committed no wrongdoing in the provision of his references in the CO-1 Appointment Process. His visceral discontent with the Decision and the entire investigation process is palpable in his submissions. He firmly believes that the Investigator, the Commission and all persons involved in the First and Second Investigations have lied, bullied him, ignored his evidence, twisted his words and wilfully misrepresented his actions. In essence, he claims to be a victim of unjustified retaliatory measures and of a widespread conspiracy to evict him from the federal public service. His extensive written and oral submissions before the Court contain a chorus of heartfelt accusations voiced in a condemnatory fashion, where he repeatedly uses words such as “lies”, “misrepresentations”, “speculations”, “concealments” and “fabrications” to qualify what, in his view, the Investigator and the Commission have done to him.
[33] Mr. Cadostin’s submissions intermingle the various issues at stake in this judicial review and are at times difficult to decipher. In short, I understand that his arguments essentially boil down to the following. Mr. Cadostin claims that: 1) the Commission lacked jurisdiction to undertake the Second Investigation and issue the Decision; 2) the Decision was unreasonable in all respects; 3) the Commission’s investigation process was procedurally unfair throughout; and 4) the Commission’s investigation and Decision violated his Charter rights and created a double jeopardy situation. Each of these arguments will be dealt in turn.
A. Preliminary issues
[34] Some preliminary matters must, however, be addressed before dealing with the four main issues in dispute in Mr. Cadostin’s application. As was the case in the Cadostin decision, the admissibility of evidence tendered by Mr. Cadostin in support of his arguments was the focus of discussion at the outset of the hearing of this application before the Court.
[35] The AGC first submits that numerous paragraphs of Mr. Cadostin’s affidavit are inadmissible because they contain opinion and legal argument, contrary to Rule 81(1) of the Federal Court Rules, SOR/98-106 which stipulates that affidavits shall be confined to facts within the personal knowledge of the deponent. The AGC argues that these paragraphs should be struck or, alternatively, that the Court should exercise its discretion to give them no weight or probative value (Abi-Mansour v Canada (Attorney General), 2015 FC 882 at paras 30-31).
[36] It is well established that the Court may strike all or parts of affidavits where they are abusive or clearly irrelevant, or where they contain opinions, arguments or legal conclusions (Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18). Justice Walker reaffirmed this discretion in the context of the AS-4 Appointment Process (Cadostin at para 26). As was the case then, I agree that the paragraphs highlighted by the AGC contain Mr. Cadostin’s opinions, arguments and legal conclusions regarding the issues before the Court and that, as such, they are not properly included in his affidavit. For the sake of efficiency, I have opted to exercise my discretion to give them no weight or probative value. However, I pause to observe that, as was the case in Cadostin, since Mr. Cadostin ended up repeating his arguments and legal opinions in his written and oral submissions, his position on the various issues at stake has been fully presented to the Court and has been taken into consideration in these reasons.
[37] The AGC also submits that many exhibits attached to Mr. Cadostin’s affidavit are inadmissible, irrelevant or both. The AGC points more specifically to exhibits 1, 3, 5-10, 12-14, 16, 17, 21-23, 26-27, 30-31, 34, 35A, 35B, 36-37, 47-48, 48B, 55-58, 62C, 66, 66B, and 67-82 submitted by Mr. Cadostin. In essence, the AGC contends that these exhibits are either irrelevant as they relate to the AS-4 Appointment Process, or inadmissible because they were not before the Commission when it issued the Decision on the CO-1 Appointment Process. The AGC reminds that the general rule in any application for judicial review is that materials which were not in front of the decision-maker cannot be considered by the reviewing court, except for limited exceptions (Gittens v Canada (Attorney General), 2019 FCA 256 at para 14; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [AUCC] at paras 19-20). Those limited exceptions extend to materials that: 1) provide general background assisting in understanding the issues; 2) demonstrate procedural defects or a breach of procedural fairness; or 3) highlight a complete absence of evidence before the decision-maker (AUCC at paras 19-20; Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 16-18). The AGC claims that the exhibits he singled out do not meet any of these limited exceptions.
[38] I pause to point out that, contrary to what was the situation in the Cadostin case before Justice Walker, the AGC does not claim that some of Mr. Cadostin’s exhibits should be excluded on the ground that they were not put before the Court by means of an affidavit, as they indeed were filed through Mr. Cadostin’s affidavit and the AGC was not prejudiced on his ability to cross-examine in this case (Cadostin at para 32).
[39] I agree in part with the AGC’s submissions on Mr. Cadostin’s exhibits. It is not disputed that the evidence contained in Mr. Cadostin’s exhibits, which is properly put before the Court as forming part of the Certified Tribunal Record [CTR] prepared by the Commission, is admissible and can be considered by the Court in these reasons. I also agree that those exhibits which were not before the Commission and were not included in the CTR are inadmissible and cannot be factored in by the Court in assessing the lawfulness of the Decision in this judicial review, if they do not fit within one of the limited exceptions identified in AUCC.
[40] However, to the extent that Mr. Cadostin has brought himself within one of the limited exceptions set out in AUCC, his exhibits can be considered by the Court even if they were not before the Commission and are not part of the CTR. In this case, the only AUCC exception that could apply is the exception relating to materials potentially bringing evidence on procedural defects or breaches of procedural fairness. In his written and oral submissions, Mr. Cadostin has repeatedly raised issues of procedural fairness in the conduct and management of the CO-1 Appointment Process, and I acknowledge that some exhibits could assist the Court to the extent that they relate to the fairness of the investigation process. I am satisfied that the benefit to the Court in admitting these exhibits, however low, is not outweighed by the prejudice to the AGC and the fact that the evidence was not before the Commission.
[41] I make one additional specific observation with respect to the audiotape containing the recordings by the Investigator of Mr. Cadostin’s interviews with her during the investigations on the AS-4 and CO-1 Appointment Processes. These audiotape recordings were attached to Mr. Cadostin’s affidavit and to the affidavit of Ms. Marie LaTerreur filed by the AGC with his response. In his written submissions and at the hearing before the Court, Mr. Cadostin relied extensively on these recordings and indeed asked the Court to listen to many extracts during his oral submissions. It is not disputed that the audiotape itself was not in front of the Commission and does not form part of the CTR. However, to the extent that the audiotape recordings of his interviews were used by Mr. Cadostin to support his assertions of breaches of procedural fairness, they have been considered by the Court in these reasons.
[42] Mr. Cadostin also complains about the fact that the audiotape was only sent to him after the completion of the investigation. I will come back later on this issue in my consideration of Mr. Cadostin’s allegations of breaches of procedural fairness in the CO-1 Appointment Process, but I simply mention at this stage that, as was the case in the Cadostin decision, Mr. Cadostin was able to use the audiotape to refresh his memory of the interviews to prepare his submissions to the Court, including his submissions that the Investigator distorted his interview statements.
[43] I further note that, in support of his submissions, Mr. Cadostin also relied on the audio recordings of the Investigator’s interviews with each of the two CIRNAC Managers. These audio recordings were also not before the Commission but they were attached to the affidavit of Ms. LaTerreur. Again, to the extent that Mr. Cadostin has used them to demonstrate a breach of procedural fairness in the investigation process leading to the Decision, they have been taken into account by the Court in these reasons.
B. The Decision was within the Commission’s jurisdiction
[44] As a first substantive argument against the Decision, Mr. Cadostin submits that the Commission had to receive a prior complaint or a request from the employer conducting the appointment process (i.e., CIRNAC) before initiating an investigation. He claims that the Commission therefore lacked jurisdiction to start the Second Investigation on the CO-1 Appointment Process since CIRNAC never sought an investigation.
[45] With respect, this argument has no merit.
[46] Section 69 of the PSEA expressly grants the Commission a broad discretionary authority to start an investigation, “[i]f it has reason to believe that fraud may have occurred in an appointment process”. No other requirements need to be satisfied. Nowhere does it state, in that provision or elsewhere in the PSEA, that a complaint must have been filed in order for the Commission to undertake a fraud investigation, or that some form of request for an investigation needs to have been made by the employer involved. Indeed, Mr. Cadostin could not point to any authority in support of his position.
[47] In Seck, the Federal Court of Appeal affirmed that section 69 of the PSEA is drafted broadly because its purpose is to protect the integrity of the appointment processes. For example, it is not necessary that an appointment result from alleged fraudulent acts in order for there to be fraud within the meaning of section 69 of the PSEA (Seck at paras 42-43). Furthermore, as reaffirmed by Justice Walker in the Cadostin decision, section 69 is different from other provisions of the PSEA, such as sections 66, 67 and 68, which require an actual or proposed appointment in order for corrective action to be taken (Cadostin at paras 44-45, citing Seck at paras 45-46).
[48] Nothing in the broad statutory grant of authority provided by section 69 of the PSEA precludes the Commission from investigating without a complaint or a request for an investigation. Indeed, the Commission’s publicly available policy on investigations, attached to the affidavit of Ms. LaTerreur, stipulates that the Commission must consider “information received by any means, including but not limited to audit findings, concerns raised by individuals, internal information, and media reports”. In other words, many events or sources can prompt an investigation pursuant to section 69 of the PSEA, as long as these are sufficient to give the Commission “reason to believe that fraud may have occurred”. Accordingly, it was entirely appropriate in this case, and well within its jurisdiction, for the Commission to initiate an investigation without a complaint or a request, considering that information received from CIRNAC and from the First Investigation raised legitimate concerns about Mr. Cadostin’s conduct in the CO-1 Appointment Process and about the potential reoccurrence of fraudulent references.
C. The Commission’s Decision and corrective action were reasonable
[49] As a second main argument to support his application for judicial review, Mr. Cadostin claims that the Commission’s Decision to accept the Investigation Report and to order corrective action was unreasonable. As a self-represented litigant, Mr. Cadostin provided extensive written submissions, which contained a large spectrum of allegations relating to both the First Investigation and the Second Investigation. In essence, he argues that the Investigator and the Commission ignored evidence showing that his references were not fraudulent, as well as evidence revealing that he was a good employee throughout his career. Mr. Cadostin further asserts that the Decision overlooked evidence demonstrating that he suffered from harassment by his former supervisor, discrimination based on his race and abuse of power throughout the investigation process. He also contends that the Investigator lied and intentionally withheld facts that support his innocence. He adds that the Decision disregarded his request that false information contained in the Investigation Report be corrected and did not address the detailed submissions he provided in March 2019 following his receipt of the draft report.
[50] I disagree with Mr. Cadostin and instead find that the Decision is reasonable.
[51] Further to a thorough investigation, and two interviews with Mr. Cadostin, the Investigator prepared a detailed Investigation Report setting out the reasons and the evidence upon which she drew her adverse credibility findings and her factual conclusions regarding Mr. Cadostin’s fraudulent behaviour in the verification of his references.
[52] More specifically, she correctly assessed her findings against the two-part test for establishing fraud under section 69 of the PSEA, established by the Federal Court of Appeal in Seck. In that decision, the Court adopted the criminal law definition of fraud with the proviso that the applicable standard of proof of fraud under section 69 is the balance of probabilities (Seck at para 38; Lemelin at para 51). For the purpose of section 69 of the PSEA, fraud has two essential elements: dishonesty and deprivation (Seck at para 39). Dishonesty is established where “deceit, lies or other fraudulent means are knowingly used in an appointment process” (Seck at para 40). This may include the non-disclosure or concealment of important facts or circumstances. Deprivation is established when the appointment process could have been compromised (Seck at para 41). There is however no requirement that the Commission demonstrate actual compromise or injury to the process.
[53] The Investigation Report was then placed before the Commission with Mr. Cadostin’s comments. The Commission accepted the report without change and concluded that the comments received did not trigger the need to amend the report and that, on a balance of probabilities, Mr. Cadostin had committed fraud within the meaning of section 69 in the course of the CO-1 Appointment Process. As expressly provided for in section 69 of the PSEA, the Commission ordered the revocation of Mr. Cadostin’s appointment as well as other corrective action it considered appropriate in the circumstances.
[54] Having reviewed the CTR, the Investigation Report and the Decision, and having carefully listened to the audiotape recordings of Mr. Cadostin’s interviews and of the CIRNAC Managers, I am satisfied that the Investigator’s determination of dishonesty and deprivation are well founded, and that the Commission’s corrective action is both justifiable and justified in its reasons. Neither the Inve