Date: 20091207
Docket: T-1611-08
Citation: 2009 FC 1251
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, December 7, 2009
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
ABDELLAH CHALLAL
Applicant
and
THE ATTORNEY GENERAL
OF
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
At the time of the
events, Mr. Challal worked at the Office of the Privacy Commissioner of Canada
(OPC) as a technical analyst. He applied for an internal position and was invited
to a written test. Considering the similarity between Mr. Challal's responses
and the correction guide, the Office referred the case to the Public Service
Commission, which decided to conduct an investigation pursuant to section 69 of
the Public Service Employment Act, 2003. Section 69 states:
|
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.
|
[2]
The Office assigned an
investigator to consider the issue. In her investigation report, the
investigator found that the evidence collected during the investigation shows
that Mr. Challal copied during the written test and thereby committed fraud in
an internal appointment process. The Commission approved the report and imposed
various corrective measures.
PARTIES' POSITIONS
[3]
Mr. Challal feels that
the finding of guilt was unreasonable and should be dismissed. Should it not be
dismissed, two corrective measures were not within the Commission's
jurisdiction or, if they were, were unreasonable.
[4]
The Attorney General,
on behalf of the Commission, notes that it is now too late to question the
finding of guilt issued by the Commission. Under section 18.1 of the Federal
Courts Act, a person affected by a decision must apply for judicial review
within 30 days after the time the decision in question is communicated. Mr.
Challal did not do this.
[5]
Regarding the two
corrective measures, the Attorney General notes that they were indeed within
the Commission's jurisdiction and were reasonable.
THE DECISION
[6]
In my opinion, it would
have been premature for Mr. Challal to apply for judicial review of the
investigator's report. The decision challenged is that of the Commission to
endorse the investigator's report and impose corrective measures. The
application for judicial review was submitted in a timely manner.
[7]
However, I feel that
the Commission's decision to endorse the investigator's report that Mr. Challal
committed fraud was reasonable. The Commission had the required jurisdiction to
order the two corrective measures challenged. Moreover, the two corrective
measures were reasonable.
[8]
As a result this
application for judicial review shall be dismissed with costs.
THE FACTS
[9]
The background of this
case is set out in the investigation report. It is not necessary to repeat all
the details. In 2006, Mr. Challal was hired as a technical analyst at the CS-02
level following an external appointment process held by OPC. Later that year, an
information technology manager position was created, a CS-03 level position.
Mr. Challal was appointed to this position on an acting basis, until the
documents to staff the position could be finalized.
[10]
The person in charge of
correcting the tests was concerned with Mr. Challal's test. His answers were
not in the same form as the other candidates' and did not provide the same
level of detail. They were, for the most part, the same as those in the
correction guide, including the use of upper and lower case letters. Certain
typographical errors were reproduced.
[11]
The text was composed
of nine questions. The correction guide states the answers to eight of them.
Question nine asked candidates to prepare a PowerPoint presentation for senior
management. This was the only question Mr. Challal failed.
[12]
The investigator found
that the answers to questions 7 and 8 copied elements word-for-word from the
correction guide.
[13]
The investigator
prepared a table in her report comparing the answers Mr. Challal provided and
the expected answers from the correction guide for the first six questions of
the test. In addition to the shocking similarity of the language used, the
order of the answers to questions 2, 3, 5 and 6 is the same in the correction guide,
although there is no logical chronology to the answers.
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QUESTION
|
CORRECTION GUIDE
|
MR. CHALLAL'S ANSWERS
|
|
Question 2
(K1.2): Name two (2)
solicitation methods used to procure IT professional services.
|
1.
Temporary Help
Services (THS)
2.
PS Online
3.
Government Online
(GOL)
4.
Request for Proposal
(RFP)- MERX
|
Temporary Help
Services (THS).
Government
Online (GOL)
|
|
Question 3
(K1.3): Name four (4)
types of contracting documents.
|
1.
Local Purchase Order
(LPO)
2.
Call-Up against a
Standing Offer (form 942)
3.
Services Contract
4.
Memorandum of
Understanding (MOU)
5.
SSA
6.
PWGSC Goods Contract
|
Local Purchase
Order (LPO)
Call-Up against
a Standing Offer.
Services
Contract.
PWGSC Goods
Contact
|
|
Question 5
(K2.2): Name three (3)
key documents that should be prepared to aid in the management of a project
|
1.
Project Plan
2.
Business Case
3.
Configuration
Management Plan
4.
Requirement Analysis
5.
Project Scope
6.
Test Plan
|
1-
Project Plan,
2-
Configuration
Management Plan,
3-
Test Plan
|
|
Question 6
(K2.3): Name two project
management tools
|
1.
CASE tools for
development
2.
Prototyping tools for
testing
3.
MS-Project for project
planning
|
1-
CASE tools for
development,
2-
MS-Project for
project planning
|
[14]
The correction guide
was saved in a directory shared by employees of the Office's Human Resources
Branch. This "O" directory is only accessible to employees of that
branch. However, all computer technicians at the Office, including Mr. Challal,
had access by default, since they have access to all the servers. Moreover, Mr.
Challal allegedly had a key to the office of the person in charge of correcting
the test. In this office was a paper copy of the guide.
[15]
Mr. Challal denies that
he accessed the "O" directory or that he had a key to this office. An
outside company confirmed that it is impossible to conclusively determine
whether Mr. Challal accessed the "O" drive. If he did, he would have been
able to remove any trace.
[16]
Mr. Challal told the
investigator that he has a photographic memory and that all the questions could
be found in a 20-page Treasury Board document. According to the investigator,
this document was in narrative form and not in point form as the answers in the
correction guide.
[17]
Although the
investigator gave Mr. Challal the benefit of the doubt regarding the
"O" drive and the key to the office, her findings can be found at
paragraphs 37 and 40 of the report:
[translation]
37. That
being said, I do not feel it is necessary to prove that Mr. Challal had
access to the correction guide, whether the electronic or paper version, before
taking his written test. The evidence lies in the answers Mr. Challal provided
during the written exam on September 12, 2007. The answers Mr. Challal
provided are similar in all aspects, capitals and punctuation included, to the
correction guide contents.
40. With
no other credible explanation, and on a balance of probabilities, I must find that
Mr. Challal intentionally copied the correction guide when he answered the test
questions. His test answers were exact copies of the correction guide, are
written the same way and use the same capital letters and same presentation.
Moreover, the only question Mr. Challal failed was the one for which the
correction guide did not provide an expected answer. 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. I must find
that by copying during his written test, Mr. Challal committed fraud in an
appointment process, thereby violating section 69 of the [Public Service
Employment Act].
[18]
The Commission debated
the report. It could not revoke Mr. Challal's appointment because the OPC
decided to cancel the process and because Mr. Challal had not been appointed to
the CS-03 position before the fraud was discovered. Additionally, at the time
it made its decision, Mr. Challal had already been transferred to the
Department of Foreign Affairs. Legally, the Commission also decided that
corrective measures could not consist of disciplinary measures.
[19]
In its decision, the
Commission ordered that:
[translation]
i.
For a period of three years following September
15, 2008, Mr. Challal shall obtain the written permission of the Commission
before accepting any appointment in the federal public service. Should he
accept a position in the federal public service without such prior permission,
his appointment shall be revoked;
ii.
Mr. Challal shall not have any responsibility in
a public service nomination process for a period of three years;
iii.
Mr. Challal shall take the course Values and
Ethics in Public Service Governance (D102) at the Canada School of Public
Service before March 15, 2009;
iv.
The Investigation Directorate of the Public
Service Commission shall review Mr. Challal's appointment to the CS-02 position
at the Office of the Privacy Commissioner in December 2006;
v.
A letter shall be sent to the Privacy
Commissioner regarding treatment of employees suspected of fraud;
vi.
A letter shall be sent to the Deputy Head of the
Department of [Foreign] Affairs, informing him of the fraud committed by Mr. Challal
and asking him to verify Mr. Challal has all the qualifications for the
position he currently occupies, including the security rating. A copy of the
investigation report 2007-IPC-00286 and the Record of Decision 08-09-IB- 65 shall
be enclosed with the letter and placed on Mr. Challal's personnel file;
vii.
A copy of the investigation report 2007-IPC-00286
and all relevant information regarding Mr. Challal shall be sent to the Royal
Canadian Mounted Police for the purposes of section 133 of the [Public
Service Employment Act].
ISSUES
[20]
The issues are:
a.
Was the investigation
report a decision subject to judicial review?
b.
Was the finding of
fraud reasonable?
c.
Did the Commission have
jurisdiction to order the following two corrective measures?
i. A review by the Investigation
Directorate of the Public Service Commission of Mr. Challal's appointment to
the CS-02 position at the Office of the Privacy Commissioner in December 2006;
ii. A letter to be sent to the
Deputy Head of the Department of Foreign Affairs, informing him of the fraud
committed by Mr. Challal and asking him to be sure Mr. Challal has all the
qualifications for the position he currently holds, including the security
rating. A copy of the investigation report 2007-IPC-00286 and the record of
decision 08-09-IB-65 shall be enclosed with the letter, and placed on Mr.
Challal's personnel file;
d.
If the Commission had
jurisdiction, was its decision to order these two measures reasonable?
a. Was the investigation report a decision subject to judicial review?
[21]
The Public Service
Commission was established in the Public Service Employment Act, R.S.C.
1985, and it still exists under the new Public Service Employment Act, S.C.
2003. Its mandate is to conduct investigations and audits pursuant to section
11 of the Act. It has an investigative power pursuant to section 66 et seq. Section
67 authorizes the Commission to investigate internal appointment processes and
revoke or not make the appointment. In the present case, this part of the Act
does not apply because nobody was appointed to the CS-03 position.
[22]
In my opinion, the
investigator's report was not a decision by the Commission. In fact, the Act
does not indicate that the Commission must accept its investigators' reports.
The Commission may accept, dismiss or return the report. There is no reason an
investigation by the Commission should be treated differently than an
investigation pursuant to the Canadian Human Rights Act. Although a copy
of the report was sent to Mr. Challal before the Commission adopted it, it
follows that the report was not a decision by a federal commission. Alternatively,
if it was, it was an interlocutory decision. The traditional point of view
stated at paragraph 3:4100 of the Brown and Evans work, Judicial Review of
Administrative Action in Canada, looseleaf (Toronto: Cansvasback
Publishing, 2008), that I adopt in this case, is that the courts will not
consider applications for judicial review of interlocutory decisions.
[23]
Mr. Challal therefore
correctly waited for the Commission to finalize the report and adopt corrective
measures. Claiming the contrary would fill the Court's calendar with useless
and potentially speculative issues that would bring the administration of
justice into disrepute.
b. Is the finding of fraud reasonable?
[24]
The legal parameters
for considering a decision under review were established by the Supreme Court
in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and F.H.
v McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41.
[25]
According to Dunsmuir,
supra, the finding that Mr. Challal cheated during his test is
reviewable on the standard of reasonableness. As stated in Dunsmuir, at
para 47:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the range
of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[26]
The Commission's
decision could have serious consequences for Mr. Challal. However, as noted by
Rothstein J. at para 42 of McDougall, supra, "in civil
cases, there is no presumption of innocence."
[27]
The applicable standard
of proof was uncertain in these circumstances. As Rothstein J. noted at para 26
of McDougall :
Much has been written
as judges have attempted to reconcile the tension between the civil standard of
proof on a balance of probabilities and cases in which allegations made against
a defendant are particularly grave. Such cases include allegations of fraud,
professional misconduct, and criminal conduct, particularly sexual assault
against minors.
[28]
After summarizing the
various approaches in civil cases or where morally blameworthy conduct is
alleged, he found, at para 40 that:
…I think it is time
to say, once and for all in Canada, that there is only one civil standard of
proof at common law and that is proof on a balance of probabilities. Of
course, context is all important and a judge should not be unmindful, where
appropriate, of inherent probabilities or improbabilities or the seriousness of
the allegations or consequences. However, these considerations do not change
the standard of proof.
[29]
Of course, an act may
modify the standard of proof in a civil matter. For example, in Mugesera v
Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R.
100, the question was whether Mr. Mugesera, a permanent resident, should be
deported from Canada for a crime against humanity committed outside Canada.
Paragraph 19(1)(j) of the Immigration Act, in effect at the time,
stated:
19. (1) No person shall
be granted admission who is a member of any of the following classes:
…
(j) persons
who there are reasonable grounds to believe have committed an act or
omission outside Canada that constituted a war crime or a crime against
humanity within the meaning of subsection 7(3.76) of the Criminal Code
and that, if it had been committed in Canada, would have constituted an offence
against the laws of Canada in force at the time of the act or omission.
The Court found:
The first issue
raised by s. 19(1)(j) of the Immigration Act is the meaning of the
evidentiary standard that there be “reasonable grounds to believe” that a
person has committed a crime against humanity. The FCA has found, and we
agree, that the “reasonable grounds to believe” standard requires something
more than mere suspicion, but less than the standard applicable in civil
matters of proof on the balance of probabilities…
[30]
Section 69 of the Act
gives the Commission the power to take corrective action "if is has reason
to believe that fraud may have occurred…" As shown by the Supreme Court
analysis in McDougall, supra, this language reflects the balance
of probabilities standard of proof.
[31]
The investigator's job
was to determine whether, on a balance of probabilities, Mr. Challal committed
fraud when he wrote his text. The Commission was to determine whether it
accepted the report, and if so, what corrective measures should be imposed. The
issues before me are whether the Commission made a reasonable decision when it
adopted the investigator's report, whether it had the jurisdiction to impose
the corrective measures it ordered and, if so, whether these measures were
reasonable.
[32]
In coming to the
conclusion that fraud occurred, the investigator was to ask herself whether, on
a balance of probabilities, the similarities between the correction guide and
Mr. Challal's responses were merely coincidental. She found, and it was
reasonable for the Commission to adopt this finding, that the similarities
could not, on a balance of probabilities, be attributed to coincidence. The
next step was to assess whether there was an explanation for the similarities
other than cheating. Mr. Challal says he studied from a 20-page Treasury Board
document that contained all the information needed and he has a photographic
memory. The investigator dismissed this explanation since the Treasury Board
document was in a completely different format. It was reasonable for the
Commission to support this finding.
[33]
Mr. Challal claims that
it was unreasonable for the Commission to accept the investigator's report
without asking her to produce the documents she reviewed, including the
Treasury Board document. I disagree. The investigator is part of the Commission,
and there was nothing to suggest to the Commission that she misinterpreted the
documentation at her disposal, including the Treasury Board document. In fact, Mr.
Challal had requested a court order for all the documents the investigator
considered. Prothonotary Aronovitch dismissed this request on the ground that
traditionally, in judicial review, the Court is limited to the documents that
were before the decision maker, the Commission. There are exceptions, for
example those that would allow a party to support a theory that there was a breach
of procedural fairness in the decision because the decision maker should have
had access to other documents in order to come to an appropriate decision: Tremblay
v Canada (Attorney General), 2005 FC 339. When he presented his request to
the prothonotary, nothing prevented Mr. Challal from attaching the Treasury
Board document to establish, for example, that it was in point form and not in
the narrative form the investigator described.
[34]
The investigator chose
the correct standard of proof. It is not this Court's role to question whether
it would have come to the same conclusion. The issue is solely whether the decision
falls within the range of acceptable outcomes which are defensible in respect
of the facts and law, as set out in Dunsmuir, supra, at para 47.
[35]
In my opinion, the
investigator's report of findings and its endorsement by the Commission were
reasonable and should not be modified. As the Supreme Court has frequently
cautioned the lower courts, for example, in Canada
(Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748 [Southam] at para 80, the courts should not be quick to
substitute their opinion for that of the original decision maker.
c. The corrective measures
[36]
The first corrective
measure challenged is the one ordering "a review conducted by the
Investigation Directorate of the Public Service Commission of Mr. Challal's
appointment to the CS‑02 position at the Office of the Privacy
Commissioner in December 2006".
[37]
I have no problems
coming to the conclusion that the Commission has jurisdiction to adopt this
corrective measure. The Commission does not have the jurisdiction to dismiss a
member of the public service except for political activities if the conditions at
sections 68, 113, 114, 115, 118 and the regulations have been met. However,
under section 66 of the Act, the Commission may investigate any external
appointment process. According to section 69, if the Commission has reasons to
believe fraud has occurred in an appointment process, it can investigate. This
is exactly what the Commission is doing. The issue is whether the conclusion
that Mr. Challal committed fraud during an internal selection process suggests
that fraud may have occurred in his original external appointment process is
reasonable. Relying on Mugesera and Southam, supra, I feel
it would be inappropriate for me to amend this decision.
[38]
As for the other
corrective measure ordering "a letter to be sent to the Deputy Head of the
Department of Foreign Affairs, informing him of the fraud committed by Mr.
Challal and asking him to be sure Mr. Challal has all the qualifications for
the position he currently holds, including the security rating. A copy of the
investigation report 2007-IPC-00286 and the record of decision 08‑09-IB-65
shall be enclosed with the letter, and placed on Mr. Challal's personnel
file", Mr. Challal claims that the Commission's investigative powers
are limited to section 66 et seq. of the Act. The decision on which the
Commission is relying, Hughes v Canada (Attorney General), 2009 FC 573,
would not apply because it was rendered under the former Act. He submits that
sections 7.1 and 7.5 of the former Act were broader and allowed the Commission
to lead any investigation on any subject under its jurisdiction.
[39]
I cannot accept this
proposal. The preamble of the current Act states, among other things,
"Canada will also continue to gain from a public service that strives for
excellence, that is representative of Canada’s diversity and that is able to
serve the public with integrity and in their official language of
choice".
[40]
Mr. Challal did not
leave the public service. He was transferred to the Department of Foreign Affairs.
He is still a public servant. The public must have confidence in those who work
for it. I cannot believe that Parliament would have wanted someone who
committed fraud to be able to transfer from one department to another, and thus
obtain full impunity. The Department of Foreign Affairs should have all the
elements required to evaluate Mr. Challal's integrity and determine whether he
has been rehabilitated. In my opinion, these corrective measures were within
the Commission's jurisdiction. They were reasonable and similar to those in the
Federal Court of Appeal decision, Messier v Canada (Solicitor General),
[1985] F.C.J. No. 227 (QL).
ORDER
THE COURT ORDERS that:
The application for judicial review of the Public Service
Commission of Canada decision 08-09-1B-65 dated September 15, 2008, is
dismissed with costs.
"Sean Harrington"
Certified true
translation
Elizabeth Tan,
Translator
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