r v. Canada, 2012 FC 1263

T-1458-10 2012 FC 1263 Anissa Samatar ( Applicant ) v. Attorney General of Canada ( Respondent ) Indexed as: Samatar v. Canada (Attorney General) Federal Court, Martineau J.—Ottawa, September 6 and October 31, 2012.

Public Service — Selection Process — Competitions — Judicial review of decision by Public Service Commission (Commission) determining applicant guilty of fraud for providing false references to candidate in appointment process within public service — Investigation by Commission conducted pursuant to Public Service Employment Act (PSEA), s. 69 — During investigation, Commission summoned applicant to interview, suspecting applicant of fraud — Before interview, investigator not telling applicant suspected of fraud — Investigator also not providing applicant with relevant evidence — Investigation report finding applicant guilty of fraud, corrective action taken against applicant — Issue namely whether

(1) Public Service Employment Act (PSEA), s. 69 authorizing Commission to take corrective action against applicant when applicant not participating in competition, but giving references in competition, (2) rules of procedural fairness breached in case — PSEA not defining word fraud — French English

definitions of word “fraud” similar — Fraud involving deceiving others for gain — Intent must beto deceive others, not sufficient to look only at material fact alone — Before assessing reasonableness of finding of “fraud”, first must be satisfied Commission having jurisdiction in respect of third parties like applicant — To do so, must review overall framework governing human resources in federal public service — Thus, information sent to Commission regarding supposed fraud of applicant in appointment process similar to disclosure of wrongdoing under Public Servants Disclosure Protection Act — Approach by Commission merely leading to duplication of investigation process — Parliament’s use of conjunction “and” in English version of PSEA, s. 69(

a) directly before s. 69(

b) not fortuitous — Only ancillary power related to revocation of proposed appointment — To exercise power to take “corrective action” under authority set out in s. 69(

b) independently of power set out in s. 69(

a) to revoke appointment, conjunction “and” would need to be replaced by “or” in English version, conjunction “ou” added in French version — Commission usurping powers, acting without jurisdiction — No need to express definitive opinion on jurisdiction or reasonableness because procedural fairness issue determinative — Content of duty of fairness varying depending on context, consideration must be given to criteria listed by Supreme Court in Baker v.

Canada (Minister of Citizenship and Immigration) — In case at bar, investigator not revealing to applicant, in timely manner, intentions, evidence already collected — Notice to appear clearly insufficient — Rules of procedural fairness required investigator to disclose before interview documentary evidence likely to be used in interview — Breach of procedural fairness flagrant in applicant’s case — Federal Courts Act , s. 18.1(3) conferring broad discretion on Court to choose appropriate remedy — Given specific, exceptional circumstances herein, not in best interests of justice to refer applicant’s case back to Commission — Applicant entitled to increased costs exceeding party and party costs normally awarded — Commission’s decision set aside — Application allowed.

This was an application for judicial review of a decision by the Public Service Commission of Canada (Commission) determining that the applicant was guilty of fraud for providing false references to a candidate in an appointment process within the public service. The applicant contested the lawfulness of the Commission’s investigation report that determined that she was guilty of fraud following an investigation conducted pursuant to

section 69 of the Public Service Employment Act (PSEA). The applicant submitted 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 the content of a witness’s testimony and notes. The applicant did not participate in any competition. Nevertheless, she was the subject of a decision by the Commission that determined that she was guilty of fraud along with two other public servants: the candidate in the competition, and another person who, like the applicant, was a reference for the candidate.

The candidate affected by the investigation was not appointed to the positions for which she applied. However, the Commission asserted 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 qualified persons. The applicant questioned the existence of that power. The respondent, on behalf of the Commission, argued 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, and that it is sufficient that the fraud was committed “in an appointment process”. The applicant submitted that the PSEA

preamble does not provide for amendments to the clear wording of

section 69, which uses the conjunction “and” and not “or”. The applicant also argued that, contrary to the candidate’s situation, she was not a candidate in any competition and was not directly involved in the appointment process (she was not herself a member of the selection board or in charge of checking the candidate’s references). As corrective actions, the Commission required that the applicant, for a period of three years, obtain the written permission of the Commission before accepting a position within the federal public service, without which her appointment would be revoked.

Furthermore, the impugned decision and investigation report would be sent to the applicant’s employer and to the Royal Canadian Mounted Police. The issues were whether (1) the rules of procedural fairness or natural justice were respected, (2) the impugned decision that the applicant committed fraud is unreasonable, and

(3) section 69 of the PSEA authorizes the Commission to take corrective action against the applicant, who did not participate in any competition, but provided references in a competition. Held , the application should be allowed. In this case, the Commission’s investigation was conducted under the supposed authority of

section 69 of the PSEA . The Commission’s policy on considerations for investigations indicates that the decision to investigate or not is discretionary. The PSEA does not define what constitutes “fraud”. It is a question of law that is at the very heart of the jurisdiction conferred by Parliament on the Commission. The French and English

definitions of “fraud” 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 the author acted in good faith, we are instead talking about an “error”. 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.

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. 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. The issues of jurisdiction or reasonableness cannot adequately be addressed without first conducting a review of the overall framework that governs the federal public service.

Section 69 came into force as part of the Public Service Modernization Act , which introduced a framework for human resources modernization. Parliament also enacted a true framework legislation applicable to the entire public sector; one of the objectives of the legislation is specifically to maintain and enhance public confidence in the integrity of federal public servants. The Public Servants Disclosure Protection Act created the position of the Public Sector Integrity Commissioner, who investigates and decides on matters related to disclosure and reprisal.

In a context where Parliament’s intent is to give a general supervisory power to the Commission to ensure that appointments are based on merit, the Commission understandably has the authority to revoke an appointment and take any corrective action that it considers appropriate to re-establish public confidence. The question is whether the Commission is authorized to take any “corrective action” with respect to a third party. Fraud and the manufacture of false documents are unethical and violate the codes of conduct applicable to public servants.

Even if public servants are not appointed to a desired position, they could be disciplined if they committed wrongdoing and they are subject to disciplinary actions, including termination of employment. The applicant was not originally the subject of the investigation. The case started with information sent from the department where the candidate’s mother worked. That is similar to the disclosure of possible wrongdoings committed by two federal public servants in an appointment process.

The approach taken by the Commission merely led to an unjustified duplication of the investigation process surrounding the commission of a possible wrongdoing by a federal public servant. Invoking the power set out in paragraph 69(

b) of the PSEA, the Commission imposed three corrective actions. Parliament’s use of “and” in the English version of paragraph 69(

a) of the PSEA, directly before paragraph 69( b ), is not fortuitous. In this case, this can only be an ancillary power related to the revocation of a proposed appointment or appointment. In order to exercise the power to take “corrective action” under paragraph 69(

b) independently of the power set out in paragraph 69(

a) to revoke an appointment or not make an appointment, the conjunction “and” in the English version would need to be replaced by “or”, and the conjunction “ ou ” would need to be added in the French version—since the conjunction “and” is currently implied if an attempt is made to reconcile the French version with the English version. The Commission therefore usurped its powers and acted without jurisdiction in rendering the impugned decision. However, there is no need to express a definitive opinion on the issue of jurisdiction or reasonableness because the issue of procedural fairness is determinative.

The content of the duty of fairness varies depending on the context, and consideration must be given to the criteria listed by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) . When it makes an order relating to fraud, the Commission must be satisfied of the affected individual’s guilt. It is the balance of probabilities standard that must apply in fraud matters. Regarding the implications on affected individual, they are significant. The impugned decision and investigation report negatively and directly affect the public servants involved in various ways.

The primary asset, if not the sole asset, of a public servant is his or her integrity. Fraud is the ultimate accusation that can lead to the highest form of punishment: the loss of confidence by the employer and the public in the personal integrity of the public servant. The procedure put in place by the Commission, more specifically with respect to the investigation phase—which is crucial—did not respect the legitimate expectations of individuals suspected of fraud and was seriously flawed. The applicant did not receive the same treatment as the candidate and was excluded from the investigation process.

There was no indication that the investigation could also involve the applicant. The investigator did not reveal to the applicant, in a timely manner, her intentions and the evidence already collected. The notice to appear is clearly insufficient. It in no way mentions that the Commission suspected the applicant of fraud. The rules of procedural fairness required, at a minimum, that the investigator disclose, before the interview, the documentary evidence likely to be used in the interview. The applicant received no communication of the draft report containing the investigator’s analysis and conclusions.

The impugned investigation report was approved by the Commission without the applicant having had the opportunity to comment on the investigator’s final conclusions and analysis. The breach of procedural fairness was flagrant in the applicant’s case. Regarding the appropriate remedy, subsection 18.1(3) of the Federal Courts Act confers broad discretion on the Court. According to the evidence in the record, the Commission’s breach of the rules of procedural fairness was flagrant and sufficient in itself to set aside the impugned decision, which adopts the impugned investigation report.

Normally, when that is the only defect, the Court may refer the matter back to the tribunal in accordance with instructions that it deems appropriate in the circumstances. In all cases, it is a discretionary power and, because of the conduct of a party, or even the possible mootness of a referral to the tribunal, the Court may choose to simply set aside the impugned decision.

The severity of the injustice committed against the applicant, the intransigence shown by the Commission up until now, the apprehensions one may have of bias or the predisposition taken by the Investigations Directorate, the stubbornness and the ferocity with which certain positions were advanced by the respondent (whether or not on behalf of the Commission), the fact that it was not until March 2010 that an investigation was conducted into allegations that go back to 2007, the absence of guarantees that the Commission will put in place new investigative and adjudicative processes to take into account the legitimate expectations of persons suspected of fraud make referring the applicant’s case back to the Commission not in the best interests of justice.

Given the specific and exceptional circumstances of this case, the applicant is entitled to an increased award of costs that exceeds the party and party costs normally awarded. We are talking about a simple public servant who had to spend thousands of dollars to assert her rights and have the impugned decision, the unlawfulness of which is blatant, set aside. The end cannot justify the unfair means that were used by the investigator in this case. STATUTES AND REGULATIONS CITED Canada Evidence Act , R.S.C., 1985, c. C-5, s. 5 (as am. by S.C. 1997, c. 18, s. 116).

Canada School of Public Service Act , S.C. 1991, c. 16, s. 1 (as am. by S.C. 2003, c. 22, s. 22 ) Canadian Centre for Management Development Act , S.C. 1991, c. 16. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 13.

Canadian Human Rights Act, R.S.C., 1985, c. H-6. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s.27). Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 303, 317 (as am. by SOR/2002-417, s. 19; 2006-219, s. 11(F)),318, 400(3) (as am. by SOR/2010-176, s. 11), Tariff B, column III. Financial Administration Act, R.S.C., 1985, c. F-11, s. 12 (as am. by S.C. 2003, c. 22, s. 8). Inquiries Act, R.S.C., 1985, c. I-11. Public Servants Disclosure Protection Act, S.C. 2005, c. 46, s. 9.

Public Service Employment Act, R.S.C., 1985, c. P-33, s. 6(2), (3) (as am. by S.C. 1992, c. 54, s. 6). Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13, ss. 29, 66, 67, 68, 69, 70, 71, 72, 73, 74, 133. Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2. Public Service Modernization Act, S.C. 2003, c. 22, ss. 12, 13. CASES CITED applied: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.r. (4th) 193. considered: Seck v. Canada (Attorney General), 2011 FC 1355, 401 F.T.R. 59; Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;Challal v. Canada (Attorney General), 2009 FC 1251; Northwestern Utilities Ltd. et al. v. City of Edmonton, (SCC),[1979] 1 S.C.R. 684, (1978), 12 A.R. 449; Canada (Attorney General) v. Quadrini, 2010 FCA 246, [2012] 2 F.C.R. 3; Canada LabourRelations Board v. Transair Ltd., (SCC), [1977] 1 S.C.R. 722, (1946), 67 D.L.R. (3d) 421; Belzile v. Canada (AttorneyGeneral), 2006 FC 983, 306 F.T.R. 39; Syndicat des employés de production du Québec et de l’Acadie v.

Canada (Canadian HumanRights Commission), (SCC), [1989] 2 S.C.R. 879, (1989) 62 D.L.R. (4th) 385. referred to: Seck v. Canada (Attorney General) (May 1, 2013), T-1457-10 (F.C.); M’Kounga v. Canada (Attorney General) (June 7, 2011), T-1264-10 (F.C.); M’Kounga v. Canada (Attorney General) (June 27, 2011), T-1459-10 (F.C.); Alberta (Information and PrivacyCommissioner) v. Alberta Teacher’s Association, 2011 SCC 61, [2011] 3 S.C.R. 654; King v. Canada (Attorney General), 2012 FC 488,409 F.T.R. 216; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Greaves v.

AirTransat, 2009 FC 9, 343 F.T.R. 9; Murray v. Canada (Human Rights Commission), 2002 FCT 699; Reference re Public ServiceEmployee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, (1987), 78 A.R.I; Evans v. Teamsters Local Union No. 31,2008 SCC 20, [2008] 1 S.C.R. 661; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 2 S.C.R. 381; Nova Scotia(Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504;El-Helou v. Courts Administration Service, 2012 FC 1111. AUTHORS CITED Canadian Oxford Dictionary, 2nd ed.

Toronto: Oxford University Press, 2004, “fraud”. Grand Robert de la langue française. Paris: Le Robert, 2001, “fraude”. Public Service Commission of Canada. Investigation Report

Summary: 2007 – Unfounded – Personnel Psychology Centre, 2009, online:<http://www.psc-cfp.gc.ca/inv-enq/sum-res/sec-art69/00-00-56-eng.htm>. Public Service Commission of Canada. Investigation Report

Summary:

Section 66 – Founded – Correctional Service Of Canada, 2009,online: <http://www.psc-cfp.gc.ca/inv-enq/sum-res/sec-art66/00-00-48-eng.htm>. Public Service Commission of Canada. Policy on Considerations for Investigations Conducted under the new PSEA by the PSC Relatingto External Appointments, Non-delegated Internal Appointments and Appointments Involving Political Influence or Fraud, 2007, online:<http://www.psc-cfp.gc.ca/inv-enq/plcy-pltq/inv-enq-eng.htm>. Publilius Syrus. Sentences. Paris: Les Belles lettres, 2011. Rousseau, Jean-Jacques. Reveries of the Solitary Walker. London, 1782.

Treasury Board of Canada Secretariat. Report of the Review of the Public Service Modernization Act (2003), 2011, online:<http://www.tbs-sct.gc.ca/reports-rapports/psma-lmfp/psma-lmfp-eng.pdf>. APPLICATION for judicial review of a decision by the Public Service Commission determining that the applicant is guilty of fraud forproviding false references to a candidate. Application allowed.

APPEARANCES Séverin Ndema-Moussa for applicant. Agnieszka Zagorska for respondent. SOLICITORS OF RECORD Ndema-Moussa Law Office , Ottawa, for applicant. Deputy Attorney General of Canada for respondent. The following is the English version of the reasons for judgment and judgment rendered by Martineau J.: I. INTRODUCTION [ 1 ] Internal and external appointments within the federal public service, made in accordance with the Public Service Employment Act (S.C. 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 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27 ] of the Federal Courts Act , R.S.C., 1985, c. F-7 [ s. 1 (as am. idem , s. 14 )] (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. Canada (Attorney General) , T-1263-10 ( Seck 1) and Seck v. Canada (Attorney General) , T-1457-10 ( Seck 2); • M’Kounga v. Canada (Attorney General) , T-1264-10 ( M’Kounga 1) and M’Kounga v. Canada (Attorney General) , T-1459-10 ( M’Kounga 2); and • Samatar v. Canada (Attorney General) , 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 theproceedings as a respondent, which is appropriate and consistent with subsection (1) of rule 303 of the Federal Courts Rules, SOR/98-106 [r. 1 (as am. by SOR/2004-283, s. 2)] (Rules). In such a case, where there are no persons that can be named under subsection (1), theapplicant shall name the Attorney General of Canada as a respondent.

This is set out in subsection (2) of rule 303 and that is what theapplicant 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 issatisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), substituteanother person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the AttorneyGeneral 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 tothe position taken by the applicant—because it supported, on July 23, 2010, the Commission’s approval of the corrective actionsproposed 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 assumethat the employer was not otherwise represented in those proceedings by the respondent—who would then be in a conflict of interestsituation 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 andSamatar) were the subject of a case management order dated May 6, 2011. Moreover, Ms.

M’Kounga advised the Court that she wantedto withdraw because she had retired; also on June 7 and 27, 2011, the applications for judicial review in M’Kounga 1 and 2 weredismissed 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 themerits by the Court: Seck v. Canada (Attorney General), 2011 FC 1355, 401 F.T.R. 59 (Seck 1 first instance); on appeal A-493-11 {thedecision has since been rendered: 2012 FCA 314 , 2014 FCA 314, [2014] 2 F.C.R. 167]. That last application by Ms.

Seckconcerns the other decision and the other investigation report by the Commission. In the interim, the proceedings in Seck 2 that concernthe 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 toan agreement.

On September 24, 2012, counsel advised the Court that the parties had not reached an agreement and asked the Court torender 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 impugneddecision that she committed fraud is unreasonable and that

section 69 of the PSEA does not authorize the Commission to take correctiveaction against her specifically. Those claims are highly contested by the respondent, who defends the lawfulness of the investigationprocess 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 therelevant evidence before her interview, in particular Ms. Cousineau’s testimony and notes, which was not done in this case.

If the Courtaccepts this argument, the investigator’s finding of fraud cannot legally succeed given the denial of procedural fairness. The applicant’sother major argument involves the Commission’s lack of jurisdiction: either the Commission did not have jurisdiction to start theinvestigation, 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 gainanything personally from the fraud.

That relevant evidence was not considered by the investigator. Moreover, contrary to the harshpassages that explicitly concern the candidate and Ms. M’Kounga, the investigator accepts that the applicant actually worked with thecandidate 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 theappointment process.

In fact, the candidate was not appointed to the analyst position and another candidate was eventually selected byPWGSC. 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, [2008] 1S.C.R. 190 (Dunsmuir), at paragraph 62, the judicial review process involves two steps.

First, courts ascertain whether the jurisprudencehas 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 standardof 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 [cited above]) and Challal v.

Canada (Attorney General), 2009 FC 1251(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 toinvestigate with respect to the conduct of other candidates and third parties in situations where fraud may have occurred but had nopractical effect on the proposed appointment or appointment of selected candidates. With respect, in my view, this is a question ofjurisdiction, if not a question of law that is of vital importance to the entire public service appointment system and that merits a correctinterpretation 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 issuesdiscussed by the parties, it is important to address the scope of the respondent’s participation in this case and the difficulties that canoccur 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 thatcould be characterized as “aggressive”, even “forceful”, or even, in the absence of other qualifiers, “very defensive”.

For example, inChallal, the respondent argued that it was “too late to question the finding of guilt issued by the Commission” and that the correctivemeasures “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 ajudicial review, to vindicate itself, as well as the merit of its decision. As it was so aptly stated in Northwestern Utilities Ltd. et al. v.

Cityof Edmonton, (SCC), [1979] 1 S.C.R. 684, at page 710: “To allow an administrative board the opportunity to justify itsaction and indeed to vindicate itself would produce a spectacle not ordinarily contem​plated 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 nailagainst the applicant by aggressively arguing that there was no misconduct by the Commission and that its decision on the merits isreasonable in all respects.

I am asking the question here because if the Commission were a party to the case (either as respondent or anintervener), 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, [2012] 2 F.C.R.3, at paragraphs 15 to 24, why common law narrows the scope of the representations that an administrative tribunal may make onjudicial review. In addition to the principle of finality, there is the principle of impartiality.

The problem is not only with respect to theunpleasant “spectacle” that tarnishes the image of impartiality to be ascribed to the decision maker, which must be maintained in theinterests 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: MiningWatchCanada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6.

One remedy, quite common, is to remit the matter back tothe tribunal for redetermination. If that happens, the tribunal must redetermine the matter, and appear to redetermine it, impartially, withan open mind. Submissions by the tribunal in a judicial review proceeding that descend too far, too intensely, or too aggressively into themerits 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 ofour 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 thelegality of the impugned decision, the respondent should try to intervene like an amicus curiae, even if the respondent has more latitudethat 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, withoutseeking justification that was not provided by the Commission itself in the impugned decision—which of course includes the reasons inthe 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 theCommission’s jurisdiction and the powers vested in it under the law.

I acknowledge that this can be difficult in some cases. In fact, aswas noted long ago in Canada (Canada Labour Relations Board) v. Transair Ltd., (SCC), [1977] 1 S.C.R. 722, at page728, “[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 tribunalexercises 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 canundoubtedly be argued that the respondent is also authorized, in the public interest, to support the reasonableness of the “correctiveaction”. This is certainly a borderline case.

Nevertheless, in my opinion, nothing authorizes the respondent to argue, on behalf of theCommission, 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 onthe issues of natural justice, I have decided to consider the merits of every argument made by the respondent and his counsel at thehearing, with, nevertheless, the possible consequences from the point of view of the exercise of discretion that is conferred upon me inmatters 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 havejurisdiction 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 afraud investigation under

section 69 of the PSEA; it is sufficient that the fraud was committed “in an appointment process”. Theimpugned 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 readsas follows:

Fraud 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. [ 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.) [at page 195]: 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. (Fourth 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 ed.

Toronto: Oxford University Press, 2004: 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 de la langue française , Paris: Le 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 (Public Service Commission of Canada – Investigation Report

Summary:

Section 66 – Founded – Correctional Service of Canada , 2009, see: http://www.psc-cfp.gc.ca): 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. [Emphasis added.] [ 55 ] An “error” must not be confused with “fraud” and vice versa. Moreover, 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 (Public Service Commission of Canada – Investigation Report

Summary: 2007 – Unfounded –Personnel Psychology Centre , see: http://www.psc-cfp.gc.ca): 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. [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 [as am. by SOR/2002-417, s. 19; 2006-219, s. 11(F)] 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 [first instance], 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 argument had no merit and that the Commission had the authority to investigate whether the candidate had committed fraud. [ 72 ] The essence of the Court’s reasoning can be found at paragraph 15: I share the respondent’s opinion. First, it is clear in the

preamble to the Act and in the Act in its entirety that Parliament conferred on the Commission the responsibility to protect the integrity and impartiality of appointment processes and to support the merit principle. Second, it seems evident in reading

section 69 that the Commission’s mandate relates to any fraud that may have been committed in the course of an appointment process instead of only when a person suspected of fraud is the successful candidate. Furthermore, there is no reason to conclude that the possibility for the Commission to “take any corrective action that it considers appropriate” applies only when it first decides to revoke or to not make an appointment. I see nothing to suggest that this authority is dependent on and secondary to an order rendered in accordance with paragraph ( a ). Instead, I understand from

section 69 of the Act that the Commission may not make or revoke an appointment if the person suspected of fraud is the person chosen at the end of the appointment process. If so, the Commission may also take other additional actions that it considers appropriate. When the person concerned is not the successful candidate, the Commission may still investigate and take any corrective action that it considers appropriate.

The authority conferred on the Commission is very broad and gives it the flexibility to adapt the corrective action to the circumstances specific to each file. [Emphasis in original.] [ 73 ] It is that aspect of the judgment in Seck 1 [first instance] that is undoubtedly the most contentious today. The applicant is asking the Court to adopt a different approach, by arguing that it is wrong in law. The applicant submits that the PSEA

preamble does not provide for amendments to the clear wording of

section 69, which uses the conjunction “and” and not “or”. The applicant also argues that, contrary to Ms. Seck’s situation, she was not a candidate in any competition and was not directly involved in the appointment process (she was not herself a member of the selection board or in charge of checking the candidate’s references).

Moreover, the candidate was not appointed. [ 74 ] The respondent relies on the short passage from Seck 1 first instance quoted above, as well as on his written submissions to the Federal Court of Appeal A-493-11 [cited above] to maintain that the Commission had jurisdiction to make the impugned decision. In fact, the authority to investigate and to take “corrective action” under sections 66 to 69 of the PSEA is plenary.

Even if there was no error, political influence or fraud in the proposed appointment or appointment of a person in the public service, the Commission has the latitude and discretion to sanction any improper conduct, political interference or fraud by a third party in the appointment process, whether it is a person who occupies or does not occupy a position in the public service, a member of Parliament or a federal minister, or even a member of their political staff. Correct

interpretation or just reasonable

interpretation? [ 75 ] The determination of the standard of review that applies to the assessment of the jurisdiction and powers granted to the Commission under

section 69 of the PSEA is a question of law that will eventually be decided by the Federal Court of Appeal. No deference is owed to the trial Judge in that area. [ 76 ] With respect, a rereading of Dunsmuir , paragraphs 55 to 61 in particular, and the exchanges in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, leads me, however, to distance myself from the position adopted by the Court in Seck 1 first instance. One must show great caution here.

In fact, the application of the presumption of the standard of reasonableness to a truly jurisdictional issue without prior review of Parliament’s intent and the specific framework in which a specialized quasi-judicial or administrative organization operates seems to me to raise a serious legal question.

[ 77 ] One of the difficulties in the case at bar arises also from the fact that, in Seck 1 first instance, it was specifically argued that the Commission did not have jurisdiction to launch “an investigation under

section 69 of the [ PSEA ]” ( Seck 1 first instance, at paragraph 9). The legal confusion arises undoubtedly from the fact that

section 69 is not only a jurisdiction-granting provision—if it has reason to believe that fraud may have occurred in the appointment process, the Commission may investigate the appointment process—but also a provision that grants some remedial powers to the Commission if it is satisfied that fraud has occurred. Legislative environment [ 78 ] In my view, the issues of jurisdiction or reasonableness cannot adequately be addressed without first conducting a review of the overall framework that governs the federal public service.

Before describing the tree and its foliage, it seems more prudent in determining Parliament’s intent to discuss the forest where the tree grows. You will see that other large trees of different varieties and colours grow there and indeed create the beauty of that lovely forest. [ 79 ]

Section 69 came into force on December 31, 2005, at the same time as the other PSEA provisions, which are enacted pursuant to sections 12 and 13 of the Public Service Modernization Act , S.C. 2003, c. 22 (PSMA), which received Royal Assent on November 7, 2003.

That legislation was described as “the single biggest change to public service human resources management in more than 35 years” (Government of Canada communications material, 2005). [ 80 ] The PSMA introduced a framework for human resources modernization in the federal public service, which also includes a new Public Service Labour Relations Act , S.C. 2003, c. 22, s. 2 (PSLRA). Furthermore, the PSMA substantially amended the Financial Administration Act , R.S.C., 1985, c. F-11 (FAA), which outlines the powers of the Treasury Board and the deputy heads.

Finally, the PSMA amended the Canadian Centre for Management Development Act [S.C. 1991, c. 16], renamed the Canada School of Public Service Act [ S.C. 2003, c. 22, s. 22 ], which addresses learning and development. [ 81 ] Among the amendments made by the PSMA , it must be noted that in 2005 Parliament enacted true framework legislation applicable to the entire public sector, also with a

preamble; one of the public interest objectives of the legislation is specifically to maintain and enhance public confidence in the integrity of federal public servants. I am referring to the Public Servants Disclosure Protection Act , S.C. 2005, c. 46 (PSDPA), which came into force in April 2007.

The Public Sector Integrity Commissioner investigates and decides on matters related to disclosure and reprisal, while the Public Servants Disclosure Protection Tribunal hears complaints about reprisals taken as a result of a protected disclosure. [ 82 ] It should be noted that the PSDPA is part of a continuum that starts with the creation of a work environment where dialogue on values and ethics is encouraged, where employees feel at ease raising their concerns without fear of reprisal and where good conduct is encouraged.

In accordance with the PSDPA, the Minister responsible for the Treasury Board Secretariat must encourage a public sector environment that is conducive to the disclosure of wrongdoing. Furthermore, the Treasury Board must establish a code of conduct applicable to the entire public sector. Chief executives must also establish a code of conduct applicable to the portion of the public sector for which they are responsible.

These codes must be consistent with the code of conduct established by the Treasury Board. [ 83 ] In a context where Parliament’s intent is to give a general supervisory power to the Commission to ensure that internal or external appointments are based exclusively on merit, the Commission understandably has the authority to revoke the appointment—or not make the appointment—and, at the same time, can take any corrective action that it considers appropriate to re-establish public confidence when 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 of the PSEA ), or even when the appointment or proposed appointment was not free from political influence (

section 68 of the PSEA). [ 84 ] It will also not be a surprise to anyone that, in the exercise of the remedial powers under

section 69 of the PSEA , Parliament also intended to allow the Commission, in cases of fraud—whether they involve, for example, plagiarism or the submission of falsified documents—to revoke an appointment or not make an appointment, as the case may be. That is what paragraph 69(

a) of the PSEA explicitly states.

The only question is whether, following an investigation where the evidence indicates that there was fraud by a third party other than the candidate who was appointed or proposed for appointment, independently of the power set out in paragraph 69( a ), the Commission is authorized to take any “corrective action” with respect to the third party. [ 85 ] It is not surprising that fraud and the manufacture of false documents by a public servant to promote his or her candidacy in an internal appointment process are unethical and violate the codes of conduct applicable to federal public servants.

Even if public servants are not appointed to a desired position, they could always be disciplined by their employer if they committed wrongdoing. However, pursuant to

section 9 of the PSDPA , independently of any punishment authorized by law, a public servant is subject to appropriate disciplinary action, including termination of employment, if he or she commits a wrongdoing. That leads me to

section 12 [as am. by S.C. 2003, c. 22, s. 8 ] of the FAA , which is a very important statutory provision because it confers on deputy heads the general power to discipline and terminate public servants who work under their authority. [ 86 ] The Court’s reasons for judgment in Seck 1 first instance as well as the respondent’s written submissions place a great deal of emphasis on the need to maintain the integrity of the staffing system as justification for the power to investigate and sanction with respect to other candidates and third parties, which is what the Commission is claiming.

As a result, the Commission is of the view that it does not have to consider whether “fraud” had a practical effect on the proposed appointment or appointment of those selected following an internal or external competition. I doubt whether the respondent’s position today is consistent with that of stakeholders in the public service sector. [ 87 ] The PSEA and the PSLRA, both enacted by the PSMA , provide for a review of legislation, as well as its administration and application, five years after its entry into force. The review took place and the results were made public in a report tabled in Parliament in 2011.

In its Report of the Review of the Public Service Modernization Act (2003) , the Review Team noted the following at pages 37 and 38: The [Public Service Commission (Commission)], the Office of the Chief Human Resources Officer and deputy heads differ in their views about what “ensuring the integrity of the staffing system” should entail. The boundaries between their authorities are not always

easy to establish, and there is little consensus on, or comfort with, the resultant need to act in concert and develop strong relationships. For example, the Commission noted that, when an error or omission is identified in the course of an audit, an investigation into alleged fraud or an investigation into an external appointment, it cannot act alone to address all aspects of wrongdoing that may be associated with an appointment.

Although the Commission may revoke an appointment or impose conditions on the delegation to a deputy head, in some instances a wrong may be done by someone else, such as another employee, a manager or even [Human Resources (HR)] staff. In such a situation, the responsibility rests with the deputy head to determine follow-up action, including the possibility and nature of discipline. The authorities for the PSC, deputy head and employer are laid out in not one, but two statutes.

In a complex system where several players have related authorities and the effective response to any single event is often concerted and collective action, it is essential that the players collaborate to ensure that the public interest and the integrity of the system are safeguarded.

Therefore, the Review Team recommends that: 3.1 Where the Commission, as a result of an audit or an investigation, has evidence of errors, omissions, fraud or other improper conduct on the part of an individual other than the appointee, it should engage with deputy heads who are responsible for taking appropriate action, including discipline. [Boldface in original.] [ 88 ] It should be noted that the case history, which contains numerous developments—the applicant was not originally the subject of the investigation—started with “information” sent from the DNR, where Gisèle Seck, the candidate’s mother, worked.

According to the information in question, false references could have been provided by the candidate and Ms. M’Kounga, who both worked at the CRA. That is strangely similar to the disclosure of possible wrongdoings committed by two federal public servants in an appointment process. From the start, it was also clear that someone other than the candidate had been appointed to both the PWGSC and DFAIT positions.

So why did the Commission not refer the case to the appropriate deputy head for investigative purposes? [ 89 ] It can be argued that the approach taken by the Commission merely led to an unjustified duplication of the investigation process surrounding the commission of a possible wrongdoing by a federal public servant. In fact, it must be understood that a deputy head cannot take disciplinary action without personally investigating and without giving the public servant in question the opportunity to be heard and to defend him or herself beforehand.

In such a case, it is mandatory to follow the mechanisms and procedures set out in the PSLRA and in any applicable collective agreement; in which case the public servants would be able to challenge the lawfulness of any disciplinary action through a grievance that could be referred to an adjudicator by the Public Service Labour Relations Board ( King v. Canada (Attorney General) , 2012 FC 488 , 409 F.T.R. 216). Regarding other candidates and third parties, did Parliament really intend for the Commission to investigate them directly and take corrective action against them specifically?

Interpretation of

section 69 [ 90 ] Invoking the power set out in paragraph 69 (

b) of the PSEA , the Commission imposed three “corrective actions” on the applicant: (1) the applicant must obtain written permission from the Commission before accepting a position within the public service for a period of three years, without which her appointment would be revoked; (2) a copy of the impugned decision and the impugned investigation report would be sent to her current employer, the Office of the Secretary to the Governor General; and (3) the impugned investigation report and any other relevant information would be sent to the RCMP for the purposes of

section 133 of the PSEA. [ 91 ] The applicant argues that the Commission acted without jurisdiction or otherwise usurped the powers assigned to it by

section 69 , which should be read as a whole. In fact, Parliament’s use of the conjunction “and”, which is in the English version of paragraph 69 (

a) of the PSEA , directly before paragraph 69 ( b ), is not fortuitous. Furthermore, the same wording is used in paragraphs 66 ( a ), 67(1) ( a ), 67(2)(

a) and 68 ( a ), directly before paragraphs 66 ( b ), 67(1) ( b ), 67(2)(

b) and 68 ( b ). In this case, this can only be an ancillary power related to the revocation of a proposed appointment or appointment. [ 92 ] As broad as the power to take “corrective action” under paragraph 69 (

b) may be, in order for it to be exercised independently of the power set out in paragraph 69(

a) to revoke an appointment or not make an appointment, the conjunction “and” in the English version would need to be replaced by “or”, and the conjunction “ ou ” would need to be added in the French version—since the conjunction “and” is currently implied if an attempt is made to reconcile the French version with the English version. The Commission therefore usurped its powers and acted without jurisdiction in rendering the impugned decision. I am inclined to agree with the

interpretation proposed by the applicant. [ 93 ] However, there is no need to express a definitive opinion on the issue of jurisdiction or reasonableness today or to base the judgment of the Court allowing the application for judicial review on such a contentious aspect that might soon be argued before the Federal Court of Appeal [A-493-11, the decision has since been rendered: 2012 FCA 314 , [2014] 2 F.C.R. 167] as part of the appeal in Seck 1 [first instance].

In fact, the issue of procedural fairness seems determinative to me; as explained below, there appears to be a flagrant breach by the Commission, more specifically by its investigator, of the duty to act fairly with respect to the applicant. VI.

THE ISSUE OF PROCEDURAL FAIRNESS [ 94 ] The applicant also claims that the Commission breached the rules of procedural fairness by not informing her in a timely manner of the true nature of the investigation, and by not disclosing to her before her interview the documents and testimony concerning her directly, which would then be used by the investigator in the impugned investigation report to incriminate her and find her guilty of fraud.

Moreover, the investigation of the applicant was unlawful and unfair, and the findings of the investigation are highly biased, especially since the process adopted by the investigator did not impartially dispose of the determinative credibility issues in this case in keeping with the applicant’s right to be heard. [ 95 ] The respondent readily admits that the Commission’s decision and investigation led to corrective actions with serious consequences on the employment, reputation, professional career and opportunities for advancement in the public service of the three public servants in question.

Nevertheless, the respondent argues that the applicant was interviewed by the investigator and that the applicant had the opportunity to comment on her report and recommendations before the Commission’s final decision, which is

sufficient in this case. In all respects, the procedure was fair and nothing unlawful occurred in this case. The applicant has only herself toblame if she attended the interview without being assisted by a representative or counsel. [96] It is appropriate for the standard of correctness to guide the analysis of the Court with respect to the alleged breach of the rules ofprocedural fairness: Belzile v. Canada (Attorney General), 2006 FC 983, 306 F.T.R. 39 (Belzile).

As we know, issues of proceduralfairness are resolved on a case-by-case basis, which means that today, the Court is not bound by the findings of fact the Court made onthis issue in Seck 1 first instance, at paragraphs 17 to 20, especially since the facts differ substantially because the applicant was neverformally informed that she was suspected of fraud. [97] The content of the duty of fairness varies depending on the context, and consideration must first be given to the criteria listed bythe Supreme Court of Canada in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R.817 (Baker): the nature of the decision and the process followed in making it; the statutor

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