Samatar v. Canada (Attorney General)

Samatar v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-10-31
Neutral citation
2012 FC 1263
File numbers
T-1458-10
Notes
Reported Decision
Decision Content
Date: 20121031
Docket: T-1458-10
Citation: 2012 FC 1263
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 31, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ANISSA SAMATAR
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] Internal and external appointments within the federal public service, made in accordance with the Public Service Employment Act (SC 2003, c 22, ss 12-13) (PSEA), are based on merit and non-partisanship, the two core values of the staffing system. Whether it is an open position in the public service or a job in the private sector, one can expect that a candidate will not lie about his or her competencies and that a candidate will not provide false references to a potential employer.
[2] In principle, the Public Service Commission (Commission) has the exclusive authority to make appointments, to or from within the public service, of persons (section 29 of the PSEA). However, for close to 50 years, the authority to make appointments was delegated in practice to deputy heads. There is no dispute that the Commission has, pursuant to sections 66 to 73 of the PSEA, a broad supervisory jurisdiction over internal and external appointments within the public service.
[3] Thus, following an investigation, the Commission may cancel an appointment or prevent someone from being appointed if it is satisfied: (1) that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment (sections 66 and 67); (2) that the appointment or proposed appointment was not free from political influence (section 68); or (3) that fraud has occurred in the appointment process (section 69).
[4] The applicant, Anissa Samatar, is a junior human resources advisor with the Office of the Secretary to the Governor General (OSGG). Today, she is contesting the lawfulness of record of decision 10-08-ID-73 (impugned decision), signed on August 9, 2010, by Maria Barrados, President, which determined that she was guilty of fraud following an investigation conducted by the Commission pursuant to section 69 of the PSEA.
[5] The applicant did not participate in any competition. Nevertheless, she is the subject of a single decision by the Commission that determined that she was guilty of fraud along with two other public servants: Marième Seck, a candidate in two competitions, and another public servant, Rose M’Kounga, who, like the applicant, was a reference for the candidate (collectively, the public servants affected by the impugned decision).
[6] The impugned decision adopted the findings and recommendations contained in investigation report 2009-SVC-00118.8305 dated June 10, 2010 (impugned investigation report or investigation report), which addresses internal appointment process 2006-SVC-IA-HQ-95563 (appointment process that is the subject of the impugned decision). The purpose of the appointment process was to fill an ES-5 analyst position within the Department of Public Works and Government Services (PWGSC or the employer involved in the appointment process).
[7] The candidate affected by the investigation was not appointed to the positions for which she applied. However, the Commission asserts the authority to take “corrective action” with respect to any person in a situation where fraud may have occurred, even if it had no practical effect on the proposed appointment or appointment of otherwise qualified persons who were successful in the appointment process (appointed candidates).
[8] Furthermore, beyond the specific issues of procedural fairness and reasonableness, the three public servants affected by the impugned decision are generally questioning the existence of a plenary power that is independent from any investigation and sanction by the Commission in accordance with section 69 of the PSEA with respect to unsuccessful candidates (other candidates) and persons who may have been a reference for them (third parties).
II. FACTUAL BACKGROUND
[9] The fraud allegations against Ms. Seck and Ms. M’Kounga are not the subject of this application for judicial review. However, it must be understood that the applicant was not originally affected by the investigation by the Commission, which decided to investigate the actions by Ms. Seck and Ms. M’Kounga following information received from the Department of Natural Resources Canada (DNR), where Gisèle Seck, the candidate’s mother, worked.
[10] The DNR carried out an administrative investigation into the candidate’s mother’s use of the departmental computer networks. Several e-mails exchanged between the candidate, her mother and Ms. M’Kounga related to the references Ms. M’Kounga would provide for the candidate were intercepted. A DNR manager then sent those e-mails to the Commission, which is what triggered the investigation conducted in 2009 by the Commission.
[11] The DNR did not participate in the Commission’s investigation: the employer involved in the appointment process (PWGSC) took over. In fact, from the beginning of the case, the Commission treated the employer as an interested party and, among other things, asked it to make submissions. The employer ultimately supported the corrective actions proposed by the investigator following the communication of the impugned investigation report to the interested parties.
[12] That being said, the impugned investigation report found that the candidate deliberately intended to mislead PWGSC by providing the names of Ms. M’Kounga and the applicant as references. Not only did the candidate lie about her actual former job title (CR-4 rather than AS-1) within the Department of Foreign Affairs and International Trade (DFAIT), but Ms. M’Kounga never actually worked with the candidate, let alone supervised her work. The investigator found that they are not credible and dismissed their explanations.
[13] Michelle Cousineau, Senior Analyst, Treasury Board Affairs Directorate/Corporate Services, Policy and Communications Branch at PWGSC (employer), was responsible for checking the two references (Ms. M’Kounga and the applicant) provided by the candidate on October 23, 2007. Thus, when the person responsible for checking the references contacted Ms. M’Kounga to obtain information on the candidate, Ms. M’Kounga indicated that she did not have time to participate in a telephone interview, but offered to answer the questions in writing. She then submitted the reference request form with her answers to the various questions.
[14] The written answers provided by Ms. M’Kounga to the person responsible for checking the references were exhaustive, detailed and included very positive comments on the candidate’s competencies and qualities. However, the written reference provided by Ms. M’Kounga in the form of a written questionnaire returned on November 26, 2007, to PWGSC had in fact been prepared by the candidate’s mother, which is corroborated by several e-mails exchanged between the candidate, her mother and Ms. M’Kounga.
[15] Regarding the applicant, the allegations against her specifically seem a lot less serious and the evidence of her participation in fraud a lot weaker than the evidence and the allegations against Ms. M’Kounga or the candidate.
[16] In the beginning, it was the candidate herself who provided, in an e-mail dated October 23, 2007, the applicant’s name as “supervisor” and it was never really established that the applicant actually saw the e-mail in question, because, as she states, she was on maternity leave at that time, which is not contradicted by the evidence in the record. However, it is clear that the applicant never had the title of the candidate’s “supervisor”, a point that she never denied, even if she maintains that she actually “supervised” the candidate. Nevertheless, according to the investigator, the fraud committed by the applicant arises instead from the fact that the candidate was asked to provide the names of two “supervisors”. The impugned investigation report found that it was up to the applicant to correct erroneous or false information provided by the candidate in her e-mail dated October 23, 2007. The investigator in effect presumed that the applicant was aware of the false references provided by the candidate. To make this finding, the investigator relied on the testimony and the notes from a telephone conversation that were taken by the person responsible for checking the references.
[17] As corrective actions, the Commission required that the public servants affected by the impugned decision, including the applicant, for a period of three years, obtain its written permission before accepting a position within the federal public service, without which their appointment would be revoked. Furthermore, the impugned decision and investigation report would be sent to the Canada Revenue Agency (CRA), where Ms. Seck and Ms. M’Kounga then worked, and to the OSGG. Finally, the impugned investigation report and [translation] “any other relevant information” would be sent to the Royal Canadian Mounted Police (RCMP).
Other decision
[18] On July 5, 2010, in record of decision 10-07-ID-49 (other decision), the Commission also adopted the findings and recommendations in investigation report 2009-EXT-0049.7408 (other investigation report) following an investigation also conducted pursuant to section 69 of the PSEA. The Commission issued an order directed to Ms. Seck and Ms. M’Kounga, which is similar to the order in the impugned decision. The applicant was not personally affected by the other decision and the other investigation report.
[19] The other decision and the other investigation report address internal appointment process 07‑EXT-IA-SKD-MCO-AS04 (other appointment process). Its purpose was to fill management and consular officer positions at the AS-4 group and level within DFAIT. The candidates had to provide the names of three people as references. Ms. Seck provided, inter alia, the name of Ms. M’Kounga, who she presented as being her supervisor for the 2003-2004 period. Ms. Seck was not appointed to one of the officer positions at the AS-4 level within DFAIT. The investigation found that “fraud” was also committed in the other appointment process by the candidate and Ms. M’Kounga, [translation] “who gave a false reference for Ms. Seck”.
[20] In light of the e-mails referred to earlier, the Commission started an investigation to verify whether the candidate had committed fraud during the other appointment process. In the other investigation report, the investigator found that the candidate had committed the alleged fraud. The investigator found that the evidence demonstrated that Ms. M’Kounga and the candidate had never worked together, that Ms. M’Kounga was therefore not entitled to give a reference for the candidate and that the written references had been compiled not by Ms. M’Kounga, but by the candidate and/or her mother.
III. APPLICATIONS FOR JUDICIAL REVIEW
[21] In the letters of transmittal dated August 10, 2010, the Commission informed the employer and the three public servants affected that they could challenge the legality of the impugned decision by filing an application for judicial review in accordance with section 18.1 of the Federal Courts Act, RSC 1985, c F-7 (FCA).
[22] The legality of the impugned decision and that of the other decision were the subject of judicial review proceedings filed by the three public servants affected:
• Seck v Attorney General of Canada, T-1263-10 (Seck 1) and Seck v Attorney General of Canada, T-1457-10 (Seck 2);
• M’Kounga v Attorney General of Canada, T-1264-10 (M’Kounga 1) and M’Kounga v Attorney General of Canada, T-1459-10 (M’Kounga 2); and
• Samatar v Attorney General of Canada, T-1458-10 (Samatar or this case).
[23] The respondent, on behalf of the Commission, was a party to all of those proceedings. The Commission was not named in the proceedings as a respondent, which is appropriate and consistent with subsection (1) of Rule 303 of the Federal Courts Rules, SOR/98-106 (Rules). In such a case, where there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent. This is set out in subsection (2) of Rule 303 and that is what the applicant did here.
[24] Nonetheless, according to subsection (3) of Rule 303, the Court may, on a motion by the Attorney General of Canada, where it is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada. In this case, no such motion was made by the respondent to the Court.
[25] In passing, the employer (PWGSC) involved in the appointment process before us today (AS-5 position) is adverse in interest to the position taken by the applicant—because it supported, on July 23, 2010, the Commission’s approval of the corrective actions proposed by the investigator. In any event, the employer did not ask to intervene and is not a party to the case at bar. I must also assume that the employer was not otherwise represented in those proceedings by the respondent—who would then be in a conflict of interest situation because the Commission is an independent government agency that reports directly to Parliament.
[26] Returning now to the five applications for judicial review, the Court entries indicate that three cases (Seck 2; M’Kounga 2 and Samatar) were the subject of a case management order dated May 6, 2011. Moreover, Ms. M’Kounga advised the Court that she wanted to withdraw because she had retired; also on June 7 and 27, 2011, the applications for judicial review in M’Kounga 1 and 2 were dismissed for delay.
[27] We should also note that, on November 24, 2011, the candidate’s application for judicial review in Seck 1 was dismissed on the merits by the Court: Seck v Canada (Attorney General), 2011 FC 1355 (Seck 1 first instance); on appeal A-493-11. That last application by Ms. Seck concerns the other decision and the other investigation report by the Commission. In the interim, the proceedings in Seck 2 that concern the impugned decision and report were suspended until determination or resolution of the appeal in Seck 1.
The present application for judicial review
[28] This application was heard by the Court on September 6, 2012, and its deliberation was suspended to allow the parties to come to an agreement. On September 24, 2012, counsel advised the Court that the parties had not reached an agreement and asked the Court to render a final judgment on the matter; counsel have since also made submissions on costs.
[29] Essentially, the applicant is claiming that the rules of procedural fairness or natural justice were not respected, that the impugned decision that she committed fraud is unreasonable and that section 69 of the PSEA does not authorize the Commission to take corrective action against her specifically. Those claims are highly contested by the respondent, who defends the lawfulness of the investigation process and the reasonableness of the impugned decision, as well as the Commission’s jurisdiction to make the order in question.
[30] First, the applicant submits that the investigator should have told her that she was suspected of fraud and provided her with all the relevant evidence before her interview, in particular Ms. Cousineau’s testimony and notes, which was not done in this case. If the Court accepts this argument, the investigator’s finding of fraud cannot legally succeed given the denial of procedural fairness. The applicant’s other major argument involves the Commission’s lack of jurisdiction: either the Commission did not have jurisdiction to start the investigation, or it otherwise usurped its powers by making an order of “corrective action” against her specifically.
[31] Alternatively, the applicant submits to the Court that the Commission’s findings are unreasonable because she did not gain anything personally from the fraud. That relevant evidence was not considered by the investigator. Moreover, contrary to the harsh passages that explicitly concern the candidate and Ms. M’Kounga, the investigator accepts that the applicant actually worked with the candidate and “supervised” her work for a two-year period at DFAIT.
[32] Regardless, if there was fraud, which is highly contested by the applicant (who instead speaks of a “communication problem” with the person in charge of verifying the references), any “false information” that she may have provided had no practical effect on the appointment process. In fact, the candidate was not appointed to the analyst position and another candidate was eventually selected by PWGSC.
Standard of judicial review
[33] It should be noted that, as decided by the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 62, [2008] 1 SCR 190 (Dunsmuir), the judicial review process involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors in order to identify the proper standard of review.
[34] To the extent that the blame lies solely on the Commission—in effect, the investigator—for erring in its analysis of the evidence, the decisions in Seck 1 first instance (in appeal A-493-11) and Challal v Canada (Attorney General), 2009 FC 1251, [2009] FCJ No. 1589 (Challal) (appeal in A‑3‑10 discontinued), satisfactorily respond to the question of the standard of review applicable to findings of fact, even to the Commission’s possible interpretations of the PSEA provisions, where no jurisdiction issue is truly at stake.
[35] However, the applicant is asking the Court to determine whether section 69 of the PSEA authorizes the Commission to investigate with respect to the conduct of other candidates and third parties in situations where fraud may have occurred but had no practical effect on the proposed appointment or appointment of selected candidates. With respect, in my view, this is a question of jurisdiction, if not a question of law that is of vital importance to the entire public service appointment system and that merits a correct interpretation of the PSEA.
Finding by the Court
[36] For the following reasons, this application will be allowed. Nevertheless, before addressing the merit of the various issues discussed by the parties, it is important to address the scope of the respondent’s participation in this case and the difficulties that can occur first in terms of an image of justice and impartiality and then in terms of the exercise of the Court’s remedial powers.
IV. ROLE OF THE ATTORNEY GENERAL OF CANADA
[37] The respondent is acting on behalf of the Commission here. This is not the first time that the respondent has taken a position that could be characterized as “aggressive”, even “forceful”, or even, in the absence of other qualifiers, “very defensive”. For example, in Challal, the respondent argued that it was “too late to question the finding of guilt issued by the Commission” and that the corrective measures “were indeed within the Commission’s jurisdiction and were reasonable” (Challal, at paragraphs 4 and 5).
[38] However, there is generally no dispute that it is not up to a tribunal whose decision is under review, whether it is an appeal or a judicial review, to vindicate itself, as well as the merit of its decision. As it was so aptly stated in Northwestern Utilities Ltd v Edmonton (City), [1979] 1 SCR 684, at paragraph 39: “To allow an administrative board the opportunity to justify its action and indeed to vindicate itself would produce a spectacle not ordinarily contem­plated in our judicial traditions.”
[39] Why would it be different when counsel for the respondent themselves admit taking “instructions” from the Commission itself?
[40] In this context, the question is whether is it appropriate to allow the respondent, with no reservations, to fight tooth and nail against the applicant by aggressively arguing that there was no misconduct by the Commission and that its decision on the merits is reasonable in all respects. I am asking the question here because if the Commission were a party to the case (either as respondent or an intervener), its submissions would be limited to the issue of jurisdiction (excluding procedural fairness).
[41] The Federal Court of Appeal effectively summarized in Canada (Attorney General) v Quadrini, 2010 FCA 246 at paragraphs 15 to 24, [2012] 2 FCR 3, why common law narrows the scope of the representations that an administrative tribunal may make on judicial review. In addition to the principle of finality, there is the principle of impartiality. The problem is not only with respect to the unpleasant “spectacle” that tarnishes the image of impartiality to be ascribed to the decision‑maker, which must be maintained in the interests of justice. In the end, the range of remedies available to the reviewing Court may also seriously suffer.
[42] In this regard, Justice Stratas reiterated the following at paragraph 16:
When a court allows an application for judicial review, it has a broad discretion in the selection and design of remedies: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. One remedy, quite common, is to remit the matter back to the tribunal for redetermination. If that happens, the tribunal must redetermine the matter, and appear to redetermine it, impartially, with an open mind. Submissions by the tribunal in a judicial review proceeding that descend too far, too intensely, or too aggressively into the merits of the matter before the tribunal may disable the tribunal from conducting an impartial redetermination of the merits later. Further, such submissions by the tribunal can erode the tribunal’s reputation for evenhandedness and decrease public confidence in the fairness of our system of administrative justice.
[43] In my opinion, when the respondent agrees to act on behalf of the Commission, in the absence of another party to support the legality of the impugned decision, the respondent should try to intervene like an amicus curiae, even if the respondent has more latitude that an amicus curiae. After all, the respondent represents the public interest. That being said, the respondent should, first and foremost, enlighten the Court objectively and completely on the facts stated in the impugned decision and on the Commission’s reasoning, without seeking justification that was not provided by the Commission itself in the impugned decision – which of course includes the reasons in the investigation report that the Commission supported.
[44] In short, there is no problem as long as the respondent explains the impugned decision and provides objective light on the Commission’s jurisdiction and the powers vested in it under the law. I acknowledge that this can be difficult in some cases. In fact, as was noted long ago in Canada (Canada Labour Relations Board) v Transair Ltd, [1977] 1 SCR 722 at page 729, “[w]hat is or is not a question of jurisdiction as opposed to a question of law only, touching the manner in which a statutory tribunal exercises its authority, is a somewhat ambiguous if not also a trammelled question.”
[45] Even though the present wording of section 69 of the PSEA is, at first glance, a jurisdiction‑granting provision, it can undoubtedly be argued that the respondent is also authorized, in the public interest, to support the reasonableness of the “corrective action”. This is certainly a borderline case. Nevertheless, in my opinion, nothing authorizes the respondent to argue, on behalf of the Commission, that the rules of natural justice or procedural fairness were respected in this case.
[46] Given that counsel for the applicant did not object at the hearing before the Court to counsel for the respondent’s argument on the issues of natural justice, I have decided to consider the merits of every argument made by the respondent and his counsel at the hearing, with, nevertheless, the possible consequences from the point of view of the exercise of discretion that is conferred upon me in matters of remedies and costs.
V. THE ISSUE OF JURISDICTION OR REASONABLENESS
[47] Like the other public servants affected by the impugned decision, the applicant submits that the Commission did not have jurisdiction to start an investigation or otherwise usurped its powers by making an order of “corrective action” against her specifically. The respondent, on behalf of the Commission, argues that it is unnecessary for a candidate to be appointed to a position for there to be a fraud investigation under section 69 of the PSEA; it is sufficient that the fraud was committed “in an appointment process”. The impugned decision is in all respects reasonable according to the respondent.
[48] In this case, the Commission’s investigation was conducted under the supposed authority of section 69 of the PSEA, which reads as follows:
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
(a) revoke the appointment or not make the appointment, as the case may be; and
(b) take any corrective action that it considers appropriate.
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) révoquer la nomination ou ne pas faire la nomination, selon le cas;
b) prendre les mesures correctives qu’elle estime indiquées.
[49] The Policy on Considerations for Investigations Conducted under the new PSEA by the PSC Relating to External Appointments, Non-delegated Internal Appointments and Appointments Involving Political Influence or Fraud (Policy), published by the Commission on its Web site, contains an explanation that the decision to investigate or not to investigate is discretionary and will be determined on a case by case basis.
What is fraud?
[50] As philosopher Jean-Jacques Rousseau so aptly stated in Reveries of the Solitary Walker (1782, posth.):
To lie to one’s own advantage, is a cheat; to lie to another’s advantage, is a fraud; to lie to do harm, is calumny; this is the worst sort of lies:—to lie without profit or prejudice to one’s self, or others, is not lying, 'tis fiction.
(4th walk)
[51] In this case, the PSEA does not define what constitutes “fraud”; we must therefore rely on the Commission’s interpretation of that concept. It is a question of law that is at the very heart of the jurisdiction conferred by Parliament on the Commission.
[52] In the impugned investigation report, the investigator referred to the definition given for the word “fraud” in the Canadian Oxford Dictionary, 2nd Edition, 2004, Oxford University Press:
The action or an instance of deceiving someone in order to make money or obtain an advantage illegally. A person or thing that is not what it is claimed or expected to be, a dishonest trick or stratagem.
[53] Furthermore, according to Le Grand Robert, 2001, “fraude” is an [translation] “[a]ction made in bad faith with the intent to deceive.” As you can see, the French and English definitions are similar. First, fraud involves deceiving others in the aim of gaining some advantage. Second, there must be an intent to deceive others, which leads to the question of whether the author is aware of the deception attributed to him or her. If it was in good faith, we are talking about an “error” instead. In this case, the evidence that the author does gain some advantage from the deceit supports the inference that the author intended to defraud others.
[54] The determination of the intent behind the actions taken is therefore an essential element of the analysis of the evidence. We cannot look only at the material fact alone. By analogy, the Commission noted the following in an investigation conducted under section 66 of the PSEA:
In assessing whether there has been an error, omission or improper conduct in the selection process, it is necessary to consider the intent behind the actions taken.
(Public Service Commission – Investigation Report Summary – 2009 – Founded – Correctional Service of Canada, see http://www.psc-cfp.gc.ca)
[Emphasis added.]
[55] An “error” must not be confused with “fraud” and vice-versa. Mroeover, it has been established that it is not the criminal burden of proof that applies, but that of the balance of probabilities (Challal, at paragraphs 27 to 30). The jurisprudence of the Commission reveals that, to date, investigations by the Commission that have resulted in “corrective action” have always involved candidates in an appointment process.
[56] By way of illustration, in Challal (public summary of investigation report 2007-IPC-00286 and record of decision 08-09-IB-65), it was alleged that, in the context of an appointment process, the candidate, Challal, cheated on or plagiarized a test. Following its investigation, the Commission found that the explanations provided by the candidate were not credible and that he had intentionally copied the protected correction guide when he answered the test questions.
[57] The Court confirmed that the finding of fraud was valid and reasonable. At paragraph 17 of the judgment of the Court in Challal, the investigator made the following argument:
Copying during a test constitutes fraud under the most common meaning. Mr. Challal copied in order to gain an advantage, a test result sufficiently high to ensure his appointment to the CS-03 position and thus obtaining a promotion.
[Emphasis added.]
[58] However, in Personnel Psychology Centre, a case that has certain similarities to the case at bar, the Commission decided that the mere fact that a third party provided “false references” does not mean that the candidate committed fraud, in the absence of evidence of bad faith:
The Act does not contain any definition of fraud. According to section 69, in order to be able to determine that fraud has occurred, it must be possible to link the misconduct to an appointment process.
. . .
Having discovered this e-mail message, the PPC investigated the employee's file. It was discovered that this third party had been one of the employee's referees during the external appointment process to fill the position of Assistant Second-Language Assessor. The PPC determined that there was a possibility that the third party had given a false reference in favour of the employee at the latter's request.
The focus of the investigation was therefore to determine whether the references obtained from the third party in favour of the employee were false in that they constituted fraud on the part of the employee. The issue was whether the fact that the third party had allegedly requested, in an e-mail message to the employee, that the employee assume the role of a company director in order to improve the outcome of a reference check would lead one to believe that the employee had previously requested the third party to play the same role and to provide false references in the employee's favour.
The Commission decided that it was not possible to conclude that fraud had been committed by inferring from the third party's e-mail message that the employee defrauded the system by asking the third party to provide false references. It was not demonstrated that the references obtained in favour of the employee that were used for the appointment were obtained fraudulently by means of any action committed by the employee.
Therefore, during the appointment process in question, the employee did not act in bad faith in order to mislead the system during their reference check.
(Public Service Commission – Investigation Report Summary – 2007 – Unfounded – Personnel Psychology Centre, see http://www.psc-cfp.gc.ca)
[Emphasis added.]
[59] In this case, the applicant did unsuccessfully attempt to obtain the Commission’s full investigation report in Personnel Psychology Centre. The respondent forcefully objected to the applicant’s motion, arguing that it was not clear upon reading the documents already provided under Rule 317 that the Commission had not considered that document despite the existence of an internal note suggesting that research had been done to find precedents with possible similarities to the investigation then being conducted by the Commission.
[60] On November 19, 2010, Prothonotary Tabib agreed with the respondent and dismissed the applicant’s motion with costs, which she fixed at $650. In a way, even though I do not call into question the “technical” reason that justified the motion’s dismissal, I find it regrettable in this case. To the extent that the Commission actually has jurisdiction to investigate and sanction third parties, the question is therefore whether the finding that the applicant committed fraud is one that is “defensible in respect of the facts and law” (Challal, at paragraph 25).
[61] In that context, for the purposes of assessing the reasonableness of the impugned decision, it becomes highly relevant to verify whether the Commission actually applied and considered its own jurisprudence governing fraud involving “false references” provided by third parties as part of an appointment process. The issue before the Court today—always on the assumption that the Commission had jurisdiction—is not so much whether the investigation report in Personnel Psychology Centre should have been part of the certified record as a piece of evidence taken into consideration by the investigator, but rather whether the investigator knew about that relevant case law, and, in that case, why the investigator did not mention or consider it in the impugned investigation report.
[62] In the case at bar, the applicant argues that the impugned investigation report does not show in a clear and intelligible manner that she intended to present herself fraudulently as the candidate’s supervisor. Moreover, the candidate in this case was not appointed to the position following the internal appointment process; she therefore did not gain anything from the fraud; but she could have gained something from it if she had been appointed. In contrast, the applicant in this case had nothing to gain from the success (or the failure) of the candidate for whom she provided the reference. Without personal interest in the candidate and without the likelihood of benefitting in some way, it is not clear how the applicant could have had the intention, the motivation, or even “the intent to deceive” the employer.
[63] However, before assessing the reasonableness of the finding of “fraud”, one should first be satisfied that the Commission has jurisdiction in respect of third parties, and that is exactly what the applicant is contesting today. Before assessing the parties’ respective arguments, once again, a prior assessment of the evidence in the record and of the investigator’s reasoning are in order.
Evidence in the record
[64] In fact, it was on June 5, 2009, after receiving information from the DNR, where Gisèle Seck, the candidate’s mother, worked, that the Commission officially gave notice that the candidate was suspected of fraud and that an investigation would be conducted under section 69 of the PSEA into the two internal appointment processes (the ES-5 analyst position within PWGSC and the AS-4 management and consular officer position within DFAIT), which Ms. Seck applied for in 2007 and 2008 (notice of investigation).
[65] The notice of investigation also specified that the Commission’s Investigations Directorate [translation] “reviewed the information provided in accordance with the [Policy]”. According to the Policy, in deciding whether to conduct an investigation the Commission must take into consideration whether:
• the matter falls within the Commission’s jurisdiction under sections 66, 67(1), 68 or 69 of the PSEA;
• the matter raises the possibility of a problem in the application of the PSEA that affected the selection for appointment or a breach of the PSEA, the Public Service Employment Regulations (PSER), Commission policies or the terms and conditions of delegation;
• the information received indicates the possibility of a pattern of irregularities in the application of the PSEA, PSER, Commission policies or the terms and conditions of delegation;
• the matter has come to the attention of the Commission by a person involved in the process within six months of the appointment being made or proposed; however, the Commission may, in the interest of fairness and the protection of merit, extend this time period;
• the matter has come to the attention of the Commission by any other means, and the Commission believes it should intervene, whether or not it is within six months of the appointment being made or proposed;
• there exists the possibility of implementing corrective action; and
• there is no recourse available for the matter through other avenues.
[66] According to the evidence in the record, it seems that there was a cursory review of the Commission’s jurisdiction. In fact, the notice of investigation is dated June 5, 2009, that is, two days after the jurisdiction division prepared a [translation] “jurisdiction report—2009-EXT-00049.7408 (EA) & 2009-SVC-00118.8305 (EA)” (jurisdiction report). The Policy was not mentioned in the jurisdiction report.
[67] In short, “the information” from the DNR was the determinative factor in the decision to launch an investigation under section 69 of the PSEA. In that regard, it does not seem that anyone considered whether it was possible to implement corrective action or even whether there was another recourse available to resolve the matter through other avenues, as the Policy suggests. What is clear, however, is that the investigation did not involve the applicant specifically.
Dismissal of the jurisdiction objection
[68] The objection by the public servants affected by the impugned decision regarding the Commission’s jurisdiction is briefly addressed by the investigator in paragraph 41 of the impugned investigation report:
The purpose of section 69 of the PSEA is to determine if fraud occurred during an appointment process, regardless of whether the candidate suspected of committing the fraudulent act has been appointed to the position or not. Often, the fraud is discovered before the conclusion of an appointment process and the person is never appointed. The language of s. 69 PSEA does not lend itself to an assumption that an appointment must be made in order to investigate an allegation of fraud.
[69] Aside from the jurisdiction report, it is the only written reason, on behalf of the Commission, that in any way addresses the scope of section 69 of the PSEA and the jurisdiction granted to the Commission.
Seck 1 first instance
[70] In the judgment rendered on November 24, 2011, in Seck 1, the Court briefly addressed the issue of the Commission’s jurisdiction under section 69 of the PSEA and confirmed the lawfulness of the corrective action prescribed in the other decision with respect to the candidate.
[71] After determining that the jurisdiction issue must be reviewed on the standard of reasonableness—because the interpretation and application of section 69 of the PSEA are at the heart of the Commission’s mandate and expertise—the Court found that the candidate’s argume