Docket: T-222-17
Citation: 2018 FC 286
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 12, 2018
PRESENT: The Honourable Madam Justice Gagné
| BETWEEN:
|
| SYLVIE R. LEMELIN
|
| Applicant
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Nature of the case
[1]
Following an investigation under section 69 de la Public Service Employment Act, SC 2003, c. 22, ss. 12 and 13 [Act], the Public Service Commission (PSC) found that Sylvie R. Lemelin committed fraud during a call for nomination process aimed at filling the position of National Coordinator, [translation] Healthcare Professionals Program, Canadian Coast Guard. Ms. Lemelin stated that she held a Bachelor’s Degree in Nursing Administration from Belford University and in support of her application, she submitted copies of a diploma from that university and a transcript listing the courses taken, marks achieved and her overall average of 3.19. The investigation revealed that the applicant did not take any courses with this university, which in fact does not exist and never has. The PSC then revoked her appointment and imposed a three-year restriction related to any new appointments within the federal public service.
[2]
Ms. Lemelin seeks judicial review of this decision, alleging that the PSC investigator failed to respect the principles of procedural fairness and that the PSC erred in its finding of fraud within the meaning of section 69 of the Act.
[3]
For the following reasons, the intervention of the Court is not required and the application for judicial review will be dismissed.
II.
Preliminary issue
Admissibility of additional documents filed by the applicant in support of her affidavit
[4]
In support of her affidavit, Ms. Lemelin filed a number of documents that were not before the investigator, such as extracts from the Internet sites of most Quebec universities concerning pre-conditions for recognizing academic, prior and experiential learning.
[5]
She argues that this evidence is necessary since it tends to show that the investigator was wrong when he stated, at paragraph 58 of his report that [translation] “a reasonable person, in the same circumstances, ought to know that obtaining university degrees is based on academic achievement, not on life experience”
.
[6]
I am rather of the opinion that none of the exceptions to the rule that only documents that were before the decision-maker should be considered by this Court in an application for judicial review apply in this case (Association of Colleges and Universities of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19 and 20; Smith v Canada, 2001 FCA 86 at paras 5 and 7; Ritchie v Canada (Attorney General), 2016 FC 527 at paras 21–23).
[7]
Furthermore, these additional exhibits do not actually contradict the statements of the investigator. It is clear that none of the diplomas from Quebec universities can be awarded solely on the basis of life experience and that the various institutions use a special process for awarding a limited number of credits through equivalency. Nor do all faculties and departments offer this option and those that do carry out a serious analysis to ensure the relevance, validity, quality and equivalency of the learning.
[8]
I am therefore of the view that these documents are inadmissible and that paragraphs 72 to 74 of the applicant’s memorandum should not be considered.
III.
Facts
[9]
Ms. Lemelin obtained a certificate in community health from the Université du Québec à Trois-Rivières in 1986.
[10]
Since 1992, she has held various nursing positions within the federal public service. From 2002 on until the revocation of her appointment to the position involved in the decision under review, she worked for the Department of Fisheries and Oceans [DFO].
[11]
From the winter 2007 academic session to the winter 2008 academic session, Ms. Lemelin was enrolled in the Bachelor of Nursing program at the Université Laval and earned 36 of the required 105 credits of this program, mostly through equivalency (27 out of the 36 credits obtained) with her previous certificate.
[12]
In March 2007, the applicant received an email from Belford University offering her various graduate degrees based on her life experience and work experience, thus not requiring any study. The email, sent to her personal address, reads as follows:
Sorry to drop in on you, but you were referred to us by a friend/working associate.
As of January 2006, our University has started a work experience degree program.
We can offer you 3 of the following choices:
-Associate Degree
-Bachelor’s Degree
-Master’s Degree
Our work experience/life experience degrees are the same degrees we give our full time students, but we base them upon your past knowledge and therefore require no studying.
Due to back logs we will need 1-2 weeks to verify your information and send your degree with transcripts in the mail.
Our Education office has someone available 24 hours a day, 7 days a week.
If you are interested then call us at: 1-270-837-3127
[13]
A few days later, she forwarded this email to the personal email addresses of her immediate supervisor, copying it to the personal addresses of two other unidentified individuals. It seems that her supervisor at the time and her colleagues encouraged her to enroll and to take advantage of the chance to obtain a bachelor’s degree.
[14]
Ms. Lemelin then sent her resume, fees of about $1,500 and a number of letters of recommendation provided by colleagues in the federal public service (including her immediate supervisor) and by doctors she had worked with in the past.
[15]
On April 13, 2007, she received a bachelor’s degree in nursing administration from Belford University and a detailed transcript listing the thirty courses taken over six sessions, for which she obtained marks ranging from A to C+ (for an overall average of 3.19).
[16]
On February 11, 2008, Ms. Lemelin dropped out of the Bachelor of Nursing program at the Université Laval. In addition to the credits she obtained through equivalency, she took seven courses, failing four and receiving marks from D to D+ in the other three.
[17]
In 2009, Belford University contacted Ms. Lemelin again in order to gauge her level of interest in obtaining a master’s degree. She accepted the offer and sent the required fees, new letters of recommendation and a paper of about 20 pages.
[18]
On June 29, 2009, she received her master’s degree in nursing administration and another transcript as detailed as the first. Once again, she received achieved an overall average of 3.19. She was also awarded a certificate of distinction for her master’s degree.
[19]
In July and August 2009, DFO announced the internal nomination process for the position under review. The Statement of Merit Criteria for the position required the following education:
Diploma from a recognized university with an acceptable specialization in nursing, nursing administration, nursing instruction or in another relevant specialty.
[20]
On August 6, 2009, Ms. Lemelin submitted her application after having been encouraged to do so by her superiors—this was the second posting of the position; the applicant did not apply when the position was first posted. She included a summary of her studies, namely her certificate in community health from the Université du Québec à Trois-Rivières and her Bachelor’s of Nursing from Belford University. She did not mention the courses she took at the Université Laval from 2007–2008, nor the master’s degree she received on June 29, 2009.
[21]
She was appointed to the position on May 31, 2010.
[22]
In the spring of 2010, Belford University contacted Ms. Lemelin again, informing her that she was now eligible for the doctorate of nursing program. She received her doctoral degree along with a certificate of excellence on June 29, 2010, after having paid the tuition fees and submitted a written document of about a hundred pages. She appeared in person at the office of Belford University in Texas, while she was visiting her parents in the United States. There was no pavilion at the address she was given; only an administrative office.
[23]
Shortly after that, Ms. Lemelin sent all her diplomas to the human resources department at DFO and, until the revocation of her appointment, she was receiving the education allowance provided for in her collective agreement, which is $3,850 per year.
[24]
In August 2012, following a class action instituted on behalf of 30,000 members, Belford University, Belford High School and an administrator of these institutions were ordered to pay US$22.7 million. The evidence showed that these were fake academic institutions that kept a post office box in the United States, but whose diplomas were mailed from the United Arab Emirates.
[25]
In December 2014, Ms. Lemelin’s new supervisor assumed her duties. The relationship between the two was difficult and the new supervisor wondered about Ms. Lemelin’s competencies and level of autonomy. The supervisor found that Ms. Lemelin required a great deal of supervision.
[26]
The relationship deteriorated to the point that Ms. Lemelin took sick leave from June 2015 to January 2016. During her absence, her supervisor became concerned about her academic record and learned through Internet research that Belford University did not exist and that it issued nothing but fake diplomas. A complaint against Ms. Lemelin was filed with DFO, which asked the PSC to investigate.
[27]
The purpose of the investigation was to determine whether Ms. Lemelin committed fraud during the internal nomination process by submitting her bachelor’s degree issued by Belford University in support of her application.
[28]
The PSC investigator interviewed seven people, including the applicant, her immediate supervisor and the human resources advisor assigned to the nomination process. The investigator sent a factual report to these individuals for their input; Ms. Lemelin’s only comment was to ask why the report only contained the testimony of the three people mentioned above, failing to provide any information on the testimony provided by the other four people who were questioned. The investigator replied that only relevant information gathered during the investigation was included in the report. Ms. Lemelin applied for access to the questions and responses of the other witnesses, but she was denied because the information was “Protected B”. If she wanted access, she would have to submit an access to information request.
[29]
In his report, the investigator found that Ms. Lemelin had committed fraud during the internal nomination process by submitting a fake bachelor’s degree in support of her application.
[30]
The applicant sent her comments on the investigation report and its proposed remedies to the PSC, again arguing that she wished to have access to the testimony of the other four witnesses who were questioned.
[31]
On January 18, 2017, the PSC informed the applicant that it accepted the investigation report’s conclusions and recommendations to revoke her nomination to the position of National Coordinator and impose a three-year period of restrictions on her employment within the federal public service.
IV.
Impugned decision
[32]
Adopting the investigator’s conclusions and recommendations in their entirety, the PSC thus found that there had been fraud and that the internal nomination process was compromised since the applicant was appointed to the position of National Coordinator without having met the education criterion of the position.
[33]
Although the investigation report only outlined three of the seven testimonies, the investigator stated the following in paragraph 7 of his report:
[translation]
Although not necessarily reproduced in this report, all relevant information gathered during this investigation was taken into consideration for the analysis and conclusions purposes of the investigation report.
[34]
In his analysis, the investigator adopted the definition of fraud provided by the Federal Court of Appeal in Seck v Canada (Attorney General), 2012 FCA 314, which involves two essential elements: “(1) [D]ishonesty, which can include non-disclosure of important facts; (2) deprivation or risk of deprivation”
(at para 39). He also adopted the idea that the burden of proof is that which applies in civil matters, namely the balance of probabilities.
[35]
The investigator therefore took on the task of determining whether the evidence showed, on a balance of probabilities: (1) that the applicant acted dishonestly by applying for the position of National Coordinator and stating that she held a bachelor’s degree from Belford University; and (2) that the nomination process had been compromised by this dishonest action.
[36]
The investigator found that the applicant had acted dishonestly since she knew, when she submitted her application, that the validity of her bachelor’s and her accreditation from Belford University were suspect. She submitted her application without acting on her doubts at the time.
[37]
The investigator relied on the following evidence:
When submitting her application, the applicant did not include her transcript from the Université Laval—which would have shown that when she obtained her first diploma from Belford University, she was studying at the Université Laval; nor did she submit her master’s degree from Belford University;
The applicant’s bachelor’s, master’s and doctoral degrees have no academic value because Belford University does not exist and never has;
The investigator did not find the applicant’s testimony credible. For example, when she received her first diploma in the mail, she admitted having wondered about not having had to take any courses to obtain a bachelor’s degree, especially since her diploma was accompanied by a detailed transcript for courses she never took. On another occasion, she denied having questioned the validity of the diplomas she obtained from Belford University;
The investigator did not believe that the applicant had behaved the way a reasonable person would have in the same circumstances, especially considering her previous university experience. He stressed that a reasonable person [translation] “ought to know that obtaining university diplomas is based on academic achievement, not on life experience” and that a reasonable person [translation] “would have done more than simply wonder about the way Belford University operated before taking steps to obtain two advanced degrees from the same institution”
(at para 58 of the investigation report).
[38]
The investigator found that the nomination process was compromised because the applicant clearly did not meet all the essential qualifications of the position. The investigator thus declared himself satisfied that both elements of fraud were present in this case.
V.
Issues in dispute and standard of review
[39]
This application for judicial review raises the following issues:
Was there a violation of the rules of procedural fairness?
Did the PSC err in adopting the investigation report and in finding that the applicant had committed fraud?
[40]
It is settled law that the correctness standard applies to all issues concerning procedural fairness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79).
[41]
Furthermore, the standard of reasonableness applies to the decision itself since the application and interpretation of section 69 of the Act falls within the expertise of the PSC (Canada (Attorney General) v Shakov, 2017 FCA 250 at para 61).
[42]
The Court must therefore review the PSC decision to determine whether it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and whether decision meets the requirements set out in terms of intelligibility and transparency (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
VI.
Analysis
A.
Was there a violation of the rules of procedural fairness?
[43]
It is settled law that an administrative decision-maker’s duty with respect to procedural fairness varies according to the unique context of each case, according to the applicable law and the rights of the citizen addressed by the decision (Baker v Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 21). With respect to employment, where a person’s right to continue in their job is at stake, “a high standard of justice is required”
(Kane v Board of Governors of UBC, [1980] 1 S.C.R. 1105 at p. 1113). It follows that the decision-making process for removing an employee, or to revoke their appointment to the position they occupy, requires a high degree of procedural fairness.
[44]
I would add that an allegation of fraud in this context requires an even higher level of procedural fairness, considering the impact of such accusations on an individual’s career and on their prospects for future employment. I cite here the remarks of my colleague Justice Luc Martineau in Samatar v Canada (Attorney General), 2012 FC 1263:
[124] 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. In situations where the Commission decides to disclose the name of the person involved (disclosure summaries section), the individual’s personal participation in the fraud committed is publicly exposed, which, or course, will have a considerable impact on his or her reputation and future employment opportunities.
[125] It is true that, technically speaking, the public servants affected by the impugned order have the right to be presumed innocent. Nonetheless, in the minds of the public or an employer – for which the legal subtleties are often incomprehensible – the public servants affected are “guilty of fraud”, even if their guilt was not established beyond a reasonable doubt before a criminal court. Furthermore, certain public summaries state that the Commission found specific named individuals “to have committed fraud”: Ms. Marin-Vuletic – investigation report 2010-CSD-00088.10365/2010-CSD-00089.10367; Ms. Vuletic – investigation report 2010-CSD-00088.10366/2010-CSD-00089.10368 and Ms. Lavoie – investigation report 2008-IPC-00333.6908.
[126] For all of the above-mentioned reasons, I am of the opinion that the Commission’s exercise of the power set out in section 69 of the PSEA justifies “greater procedural protection” (…).
[45]
That said, the applicant has not persuaded me that the principles of procedural fairness were not respected in the course of the investigation that led to the PSC’s decision.
[46]
The applicant had the opportunity to comment on the factual report and on the investigation report, and even though the applicant asked on two occasions for access to the record of all the testimony provided to the investigator, the latter was under no obligation to provide it to her.
[47]
In Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, the Supreme Court of Canada stated the following at page 902 of its reasons:
[...] the Commission had a duty to inform the parties of the substance of the evidence obtained by the investigator and which was put before the Commission. Furthermore, it was incumbent on the Commission to give the parties the opportunity to respond to this evidence and make all relevant representations in relation thereto.
[48]
This was precisely the process the PSC followed in this case.
[49]
The investigator did not have to “describe in his report every single piece of evidence submitted by the parties”
, nor “send the parties all the evidence filed”
(Jean v Société Radio-Canada, 2015 FC 541 at paras 25 and 26). I also endorse the remarks of my colleague Justice Anne L. Mactavish in El-Helou v Courts Administrative Service, 2012 FC 1111:
[75] I agree with the respondents that Mr. El-Helou was not necessarily entitled to see all of the transcripts of all of the witness interviews or each and every document produced to the investigator. Rather, the case law merely requires that he be made aware of the “substance of the case” (Radulesco) or the “substance of the evidence obtained by the investigator (SEPQA, Mercier).
[76] This requirement will generally be satisfied by the disclosure of the investigator’s report and the provision of an opportunity for comment. (…).
[50]
The investigator provided the applicant with the substance of the relevant evidence that was submitted to him and gave her an opportunity to comment prior to the PSC’s decision. This approach is consistent with case law and the principles of procedural fairness that apply in situations such as this.
B.
Did the PSC err in adopting the investigation report and in finding that the applicant had committed fraud?
(1)
Applicable law
[51]
The test of a finding of fraud within the meaning of section 69 of the Act is set out by the Federal Court of Appeal in Seck, above. It is taken from criminal law and it has two essential elements: “(1) [[D]ishonesty, which can include non-disclosure of important facts; (2) deprivation or risk of deprivation”
(at para 39). Nonetheless, the burden of proof that applies to the question of whether there was fraud in a nomination process is that of the balance of probabilities.
[52]
In Seck, the Federal Court of Appeal does not explicitly refer to the two components of any criminal act, namely the actus reus and the mens rea. And yet, it does so implicitly by relying on three precedents that outline the role of each of these components in determining the existence of fraud. For example, in R v Théroux, [1993] 2 S.C.R. 5 at pages 25 and 26, the Supreme Court indicates that:
(…) To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that the accused practised deceit, lied or committed some other fraudulent act. (
…) it will be necessary to show that the impugned act is one which a reasonable person would see as dishonest. Deprivation or the risk of deprivation must then be shown to have occurred as a matter of fact. To establish the mens rea of fraud the Crown must prove that the accused knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent means, and that the accused was aware that deprivation could result from such conduct
.
[53]
In other words, the actus reus and the mens rea must be proved with respect to each element of the test of fraud.
[54]
This is the path taken by this Court in Egbers v Canada (Attorney General), 2015 FC 1342, precisely in the context of applying section 69 of the Act. In that case, the Court indicated tha
[55]
t: “[T] he mens rea of fraud is subjective. The question is not what the applicants ought to have known, or what was reasonable, but what they actually knew. This requires a consideration of the full factual context”
(at para 46). Applying this test, the Court found that the PSC did not consider the mens rea or the subjective element unique to individuals accused of fraud, but rather the reasonable person test. This latter test can be used to determine whether the actus reus is shown but not whether the mens rea is shown.
(2)
The law as applied to the facts
[56]
Only the first element of the test set out in Seck is in issue in this case. As the applicant was appointed to the post of National Coordinator—and as she obtained an education allowance as a result, without holding the required degree—deprivation is established.
[57]
I also believe that it was reasonable for the PSC to find that the actus reus of a dishonest act or the concealment of important facts is shown. It was indeed matter of “show[ing] that the impugned act is one which a reasonable person would see as dishonest”
(Théroux, above at pp 25–26). Submitting a university degree obtained without having taken any courses and only on the simple basis of a few letters of reference and the payment of a specified amount is without doubt a dishonest act that would be considered as such by a reasonable person in the same circumstances. A reasonable person would have more than just doubts considering i) that Belford University sent not only a diploma, but also a detailed transcript with the list of courses supposedly taken each semester and the mark supposedly obtained for each course; and ii) that it was almost as easy to obtain a master’s degree and a doctorate in the same circumstances.
[58]
As concerns the dishonest nature of the applicant’s actions, she argues that the PSC’s decision is unreasonable, as the investigator did not apply the test set out by the courts in an appropriate manner. She argues that the PSC applied the objective test, namely that of the reasonable person, to the consideration of the mens rea or her guilty intent.
[59]
Moreover, the applicant emphasizes the facts that, according to her, tend rather to show an absence of guilty intent:
She obtained her bachelor’s degree from Belford University two years prior to the posting of the position under review;
She sent the first email from Belford University to her superior at the time in hopes of obtaining that person’s counsel;
She did not even apply for the position during the first posting; she did it during the second posting on the recommendation of her superiors;
She continued on the same course and obtained her master’s and doctoral diplomas from Belford University while the position only required a bachelor’s degree;
She herself was the victim of fraud, along with thousands of other people; she only realized during the course of the PSC investigation that the diplomas for which she had paid had no value;
She was so convinced of the validity of her diplomas that she hung them in her office, in full view of everyone.
[60]
The applicant maintains that she made an error in good faith in believing that Belford University was an accredited institution and that its diplomas had academic value, but that she never intended to defraud anyone. She asks the Court to set aside the report of the PSC’s decision and to order her reinstatement to the position of National Coordinator with full compensation.
[61]
First, since she did not meet the requirements of the position, I am of the opinion that this Court cannot order the applicant’s reinstatement.
[62]
On the face of it, one might believe that there was some confusion between what a reasonable person in the same circumstances as the applicant would have known, and what the applicant knew or did knowingly.
[63]
At paragraph 58 of his report, the investigator twice makes reference to the idea of the reasonable person in the same circumstances as the applicant.
[64]
Nevertheless, a careful reading of his report indicates that the investigator wondered about the applicant’s guilty intent. I am of the opinion that the investigator found not only that the applicant showed surprising naïveté and greed, but that she also committed fraud by concealing an important fact when submitting her application, which led to deprivation.
[65]
After reviewing the evidence as a whole, the investigator made two important statements in this regard:
[translation]
[56] Ms. Lemelin’s testimony is not credible.
(…)
[60] In light of the foregoing, it is reasonable to believe, on a balance of probabilities, that Ms. Lemelin knew when she submitted her application for the nomination process that the validity of her bachelor’s diploma was suspect, as was the accreditation of Belford University. The evidence has shown that Ms. Lemelin said nothing about this to the officials responsible for the nomination process, and that she indicated in her application that she had obtained a diploma from Belford University… [I]t is also reasonable to believe that, on the balance of probabilities, Ms. Lemelin acted dishonestly in not revealing these important facts, because she knew that she could not be appointed without meeting the requirements of the position, specifically the education requirement.
[66]
Considering the evidence that was before the investigator, I am of the opinion that this finding falls within the range of possible outcomes which are defensible in respect of the facts and law.
[67]
It is true that some of the evidence emphasized by the applicant militate for a great naïveté/greed on her part rather than for fraud. Nevertheless, it was up to the investigator and the PSC to weigh the whole of the evidence and to satisfy themselves, on a balance of probabilities, of the existence of fraud within the meaning of section 69 of the Act. Where their analysis and their finding fall within the range of possible outcomes, it is not for the Court to substitute its own assessment.
VII.
Conclusion
The applicant has not persuaded me that there was a violation of the principle of procedural fairness in the investigation process carried out by the PSC, nor that the investigator erred in applying the test for finding that she had concealed an important fact in the internal nomination process and that deprivation would have resulted from this concealment.
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