FPSLREB Decisions

I. Grievances referred to adjudication

1 Shankar Narayan (“the grievor”) was suspended without pay from his position as an auditor with the Canada Customs and Revenue Agency (CCRA or “the employer”) in 2003, and his employment was subsequently terminated in 2004. The reason given by the employer for the termination was that the grievor solicited bribes from three corporate taxpayers. He has grieved both the suspension and the termination of employment. He has also grieved the failure of the employer to advise him of his right to union representation, as required under his collective agreement.

2 For the reasons set out below, I have dismissed the grievance against the termination and suspension. I have allowed part of the grievance against the denial of union representation (in particular, the failure of the employer to advise the bargaining agent of the grievor’s suspension), but in the absence of any prejudicial effect of the failure, I have only issued a declaration.

3 The collective agreement in effect at the time of the suspension and termination was the one between the CCRA and the Professional Institute of the Public Service of Canada (PIPSC) for the Audit, Financial and Scientific Group (expiry date: December 21, 2003; Exhibit G-1). The CCRA is now known as the Canada Revenue Agency.

4 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

5 The grievor was suspended indefinitely without pay, effective July 24, 2003. The employer terminated his employment, effective March 15, 2004. The final-level response to his grievances was provided on January 10, 2005, and the grievances were referred to adjudication on February 18, 2005. The referral letter from his bargaining agent requested that the grievances be held in abeyance and scheduled for a hearing after a criminal trial, which was anticipated for fall 2005. The employer did not oppose the request to hold the grievances in abeyance, as long as it suffered no prejudice because of the delay. The grievor’s representative replied that the grievor could not accept the employer’s condition. The Public Service Labour Relations Board (“the Board”) ordered the grievances to be held in abeyance and stated that the matter of prejudice raised by the employer was to be dealt with by the adjudicator at the hearing. The criminal charges against the grievor were stayed by court order on September 11, 2006 (Exhibit E-1). In an email to the Board on October 19, 2006, the grievor’s representative requested that the grievance be scheduled for a hearing.

A. Procedural rulings during the hearing

6 During the hearing, it became clear that the grievor’s name was not correct on a number of documents, including those relating to the criminal proceedings, the grievance form and the reference to adjudication, where he is referred to as Mr. Shankaranarayan. I was advised at the hearing that his correct name is Shankar Narayan.

7 At the continuation of the hearing on October 2, 2007, counsel for the employer advised me that the employer’s last witness (the individual who signed the letter of termination) was not available until October 5, 2007, because of personal reasons. Counsel for the employer suggested that I proceed to hear the grievor’s case and that I hear the employer’s last witness when she became available. The grievor’s representative objected and requested an adjournment until the employer’s witness was available to allow him to cross-examine the witness before commencing his case. I granted the adjournment. While it is not uncommon to split a case to accommodate witnesses, it is almost always done on consent. The employer has a burden to meet in a discipline case, and it should put its case in first. In the absence of the consent of both parties to splitting a case in this fashion, I determined that an adjournment was appropriate.

8 Seven witnesses testified for the employer, and one witness testified for the grievor. The grievor’s representative requested that the testimony of Harold Mar be held in camera so that he would be as forthright as possible. Counsel for the employer objected. I refused the request because there was no policy reason to have a closed hearing in these circumstances. The grievor waived his right to attend the hearing for the testimony of that witness. The grievor also testified. An order excluding witnesses was granted.

9 On consent, I ordered that the identities of the taxpayers and their representatives as well as the names of their companies be protected. Consequently, the taxpayers, a taxpayer representative and companies that claimed tax credits are identified only by initials in this decision. Corporate taxpayer files were entered as exhibits, and the employer requested that they be sealed. The grievor did not object. Accordingly, I ordered the exhibits sealed. Any other exhibits containing the names of the taxpayers and the companies involved will be redacted if requested by anyone other than the parties to this reference to adjudication. The grievor also tendered credit card statements and other personal financial information and, on consent, I ordered those exhibits sealed.

10 The employer challenged the authenticity of certain emails tendered as evidence by the grievor. After hearing the submissions of the parties, I ordered the grievor to provide the electronic versions of those emails to the employer. The grievor responded that he could not provide electronic versions, as they were no longer available. The grievor testified in cross-examination on the authenticity of the emails, and the employer called evidence in reply. The grievor objected to the reply evidence on the basis that the evidence to be given was not reliable. The witness called by the employer was a CCRA employee who was not an expert on America On-Line Canada (“AOL”, the Internet service provider used by the grievor for his email account). The employer stated that the witness was not an expert but an AOL subscriber and could testify on how emails are printed from the AOL client software. I allowed the witness to testify and reserved my decision on the weight to be given to that evidence. I have addressed that weight in my reasons.

11 The grievor made assertions in his testimony that his criminal-defence lawyer had documents from the CCRA in his possession that would assist in this adjudication. The grievor testified that his criminal-defence lawyer had signed a non-disclosure order and was not able to provide him with the documents. Counsel for the employer, on behalf of the CCRA, offered to waive any privilege or non-disclosure agreement that might apply to the documents. They were not entered into evidence.

12 Mr. Mar was shown notes from his interview with the CCRA’s investigator (contained in Exhibit G-14). The investigator and author of the notes, Jim Cameron, had not been asked to identify the document. Mr. Mar testified that he did not remember seeing the last two pages of the notes. I ruled that since Mr. Mar could not identify the pages that they were inadmissible.

13 The grievor’s representative sought to introduce an affidavit prepared in August 2005 by the grievor. The employer objected on the basis that it was prepared two years after his arrest and that it was not an appropriate memory aid. I ruled that it was not admissible since it was not prepared within a reasonable time of the events in question.

14 The employer’s counsel also objected to the introduction of letters and emails from individuals who were not called to testify. The letters and emails were allegedly written in 2003. I allowed the introduction of the documents and reserved my decision on the weight to be given to them. I have addressed that weight in my reasons. Because of concerns about the reliability of the documents, raised by the employer, the grievor’s representative sought to submit a letter from one of the authors, dated April 21, 2008 (the date of the continuation of the hearing). The employer objected. I did not allow the document to be introduced because its author was not being called as a witness. The difference between the 2008 letter and the 2003 letters is that the author of the 2008 letter is clearly available to testify and is commenting on evidence that has been given by the grievor. The 2003 letters were allegedly received by the grievor just before his termination, and he allegedly showed one of the letters to the police. In other words, he is alleging that he relied on those letters and that they formed the foundation for certain of his actions. The 2008 letter was prepared after the grievor’s termination. The grievor’s representative was seeking to introduce it instead of direct testimony, which is clearly inappropriate, as it is evidence that cannot be cross-examined.

II. Summary of the evidence

15 The grievor began working at the CCRA in January 2002 as a term employee at the Toronto Centre Tax Services Office (TSO). He was appointed as an indeterminate employee on December 10, 2002 (Exhibit E-15). At the time he started with the CCRA, he was 51 years old. He was trained as a professional engineer and came to Canada as a skilled immigrant in 1975. After obtaining his professional engineering designation in Ontario, he started working as an engineer in the high-technology sector and worked for a number of high-technology firms, including Nortel (Exhibit G-15). Just before joining the CCRA he worked for Maxlink, a company that closed in 2001 due to a lack of funding. The grievor had been involved at that company and also at Nortel with claims for investment tax credits under the Income Tax Act (ITA). The grievor testified that he decided to apply for a position at the CCRA because he was looking for a lifestyle change. He testified that the salary difference between the two positions (approximately $15,000) was not material. In addition, the CCRA position had a pension plan, which he had never before had in his employment. The grievor is married with two children who were 11 and 21 years old in 2003. His eldest daughter was attending university at the time of his termination.

16 The grievor’s security clearance was at the Enhanced Reliability level in his position, and he was subjected to a check on that status either before or shortly after being hired. Laura McKerron, a staff relations consultant at the Toronto Centre TSO, testified that sometimes enhanced reliability checks include a criminal records check. No evidence was presented as to whether a criminal records check was performed on the grievor. The grievor testified that he did not have a criminal record. In his letter of offer (Exhibit E-15), he was reminded that he was still bound by the previously signed Confirmation of Receipt contained in the “Code of Ethics and Conduct” booklet and that he had already signed a confirmation that he had read and understood the Conflict of Interest and Post-Employment Code for the Public Service. The copy of that code that was introduced as an exhibit (Exhibit E-17) was a later version, but Ms. McKerron testified that no substantive changes had been made to the document.

A. Scientific Research and Experimental Development (SRED) Program

17 The grievor’s position with the CCRA was as a scientific research and technology advisor (RTA) with the Scientific Research and Experimental Development (SRED) Program at the Toronto Centre TSO. William McKerrall, Assistant Director, SRED Program, Hamilton TSO, testified on behalf of the employer on the background and nature of the SRED program. He had no involvement with the grievor or with any of the taxpayer files at issue in these proceedings. Mr. McKerrall has been in his position for 10 years.

18 He testified that the SRED program is based on a tax credit provision in the ITA designed to provide incentives for Canadian research and development. The refund on eligible scientific and technological research is 35 percent for Canadian-controlled private corporations and 25 percent for public companies. Private corporations get a cash refund after it is applied to taxes owing, if any. For public companies, the refund is applied only against taxes owing and is carried forward if none are owing. Companies have 18 months within which to file a claim. In cross-examination, Mr. McKerrall stated that the refunds claimed can range from thousands to millions of dollars. He stated that many small technology companies rely heavily on the SRED program. If the SRED tax credit is combined with provincial credits, the company can get up to 50 percent of its costs covered. In cross-examination, he was asked if companies could fail if they did not receive these funds, and he agreed that it could happen.

19 To make a tax credit claim, claimants attach a T661 form, along with a schedule, to their corporate income tax return. Science officers perform an initial screening of the claim, for completeness. If there are some doubts about the claim at this stage, it is passed to the manager for a second-level screening. The manager then performs a risk assessment and, if he or she feels that it requires further review, sends it to an RTA and a financial advisor for a full review. Mr. McKerrall testified that between 18 and 30 percent of all claims go to the full-review stage. The manager decides which files are sent for full review based on the availability of resources relative to the service standards. The service standards for processing claims are 120 days for refundable credits, 240 days for amended claims and 365 days for non-refundable credits.

20 Mr. McKerrall testified that the extent of a full review depends on what the RTA and financial advisor find. An RTA’s role is to verify that the claim meets the following criteria: technological uncertainty, technological advancement and documentation of work performed. Technological uncertainty refers to the uncertainty of the outcome of the research. The financial advisor is responsible for determining whether the work has been done in Canada, an eligibility criteria for the tax credit. The information circular that provides an interpretation of the credit for software development was introduced as an exhibit (Information Circular 97-1, February 26, 1997; Exhibit G-8).

21 Before meeting with a claimant for a review, the RTA will prepare a plan (using a CCRA form) that sets out the concerns. The RTA will also prepare working papers, including his or her research. For example, if the technology that is part of the claim is in the public domain, it is not eligible. Guidelines exist on how to conduct a review, but the RTA still has some latitude (Information Circular 86-4R3, May 24, 1994; Exhibit G-7).

22 A full review by the RTA usually involves an interview at the place of business with a person familiar with the technology, a review of the research being performed and an examination of the scientific records as well as the results of experiments. The grievor testified that he usually asked to see the documentation before visiting the place of business. He testified that failing to provide substantiating information resulted in delays in the assessment of the claim. Notes from meetings with clients, as well as telephone calls, are recorded on a CCRA form called a “T2020.”

23 The grievor testified that the technological advancement must be done in a systematic way. A third party should be able to duplicate the research. There must be contemporaneous documents, and the work must be performed by qualified individuals. The grievor described the criteria as “very stringent” and requiring sufficient documentation to prove that there was a technological advancement.

24 If, after a full review, the RTA concludes that the claim is not eligible, he or she will meet with the claimant, giving them an opportunity to rebut the findings. The RTA will then write a report containing the rationale for denying the claim and submit it to his or her manager. The manager will then determine whether to approve the claim. Mr. McKerrall testified that over 50 percent of the files selected for full review are approved. If the claim is denied in whole or in part, the claimants have 90 days to appeal the decision. Mr. McKerrall stated that the appeal process could take years, especially if the matter goes to court.

25 The grievor testified that he did not have the authority to approve claims. His role was to provide an opinion on whether a claim met the criteria. Only his manager, Mr. Mar, could approve or reject a claim. The grievor described his role as a “glorified reporter.” He testified that Mr. Mar did not always agree with his recommendations and that he would either seek clarification or assign it to another officer for a second review. Mr. Mar testified that he reviews all the reports from the review officers and “if it sounds logical,” he accepts them. He stated that it was not his role to second-guess officers as he was not necessarily an expert in the area of science under review.

26 Mr. Mar stated in his interview with the CCRA’s investigator (Exhibit G-14) that the grievor’s standards in finding research and development work eligible were “stringent”. When he disallowed claims, second reviews conducted by other advisors often resulted in partial eligibility. In the grievor’s performance appraisal, dated October 17, 2002, Mr. Mar noted that he “generally managed reviews successfully.” The grievor also submitted a number of exhibits showing positive client feedback (Exhibits G-17 to G-22).

27 Mr. Mar testified that a delay in reviewing a claim was not unusual and that there could be a number of reasons for such a delay. It is not unusual to have delays of up to a year on some files, especially if additional information is requested and is not forthcoming.

B. Allegations of misconduct

28 The grievor was suspended without pay as a result of allegations that he had sought a bribe from Company “A”. He was also arrested because of the allegations. After his arrest, allegations related to two other companies (Company “B” and Company “C”) arose, and his criminal charges were amended. The employer alleged in its letter terminating his employment that the grievor had attempted to solicit bribes from those three corporate taxpayers or their representatives. There is no connection among the three corporate entities. I have summarized the evidence about each corporate entity separately. Although the grievor denied the allegations and conclusions of the investigation report in communications with the employer before the termination of his employment, he did not provide the employer with his explanation of the events until this adjudication hearing. I have included his evidence in the summary of the evidence relating to the allegations while recognizing that the employer was not aware of those explanations when it decided to terminate his employment.

1. Company A

29 Before giving his testimony, M. A. reviewed the notes of his interview with the police as well as the transcript of his evidence at the preliminary inquiry. The notes had previously been disclosed to the grievor as part of the disclosure process for the criminal trial. I allowed M. A. to use the notes to refresh his memory.

30 M. A. was the president and CEO of Company A. He also held a majority stake in the company. He started the company in 2000 to develop wireless devices. He had made SRED claims for previous companies where he had worked. At Company A, he had filed SRED claims every year from 2001 to 2004. He had filed a claim for the 2001 year in 2002, and the grievor had been assigned the file. The grievor told M. A. that Company A could not claim some of the work done on the file but that if Company A reduced the claim by 20 percent, he would approve it. On August 1, 2002, Company A sent a letter withdrawing 20 percent of their claim (Exhibit G-10).

31 Company A filed another claim on January 9, 2003. The file was assigned to the grievor on February 3, 2003. The grievor had a brief conversation with Mr. Mar, who said that a review of the file should be conducted. The grievor testified that he had concerns with the file because the application device was “routine engineering” and because it did not meet the criteria for the program as there was no technological uncertainty.

32 M. A. testified that he called the grievor and arranged to meet with him in late February or early March 2003. M. A. testified that the grievor talked about his financial troubles. He told M. A. that he used to work for Nortel Networks, that his shares had lost a lot of value, that the CCRA did not pay well and that he had children to support. The grievor told M. A. that he would require further documentation. M. A. asked why, since the project had been approved the previous year. The grievor told him that it was a “political issue” and that “they” wanted an audit.

33 In his testimony, the grievor denied that he had any financial troubles and that he had made those comments to M. A. Mr. Mar testified that he was not sure if he specifically told the grievor that the file was “political.” He testified that there had been some problems with the file in 2001, where issues of whether the company was Canadian controlled arose. The file was discussed in the office, and often when a file went to higher levels for decisions, it was referred to as “political.” Mr. Mar testified that he did not think the file went that far up the management chain, and it was never at the level of the Minister’s office. The grievor testified that he never referred to the file as “political.”

34 The grievor proceeded with the review and set March 17, 2003, as the date for the follow-up meeting. He also informed Company A that it needed to provide substantiating information for the project. One of his concerns was the salary of the president and the nature of his involvement in the project. He was also concerned about “motherhood statements” contained in the application such as “the holy grail.” He did some research and learned that Company A was using the same platform the grievor used when he worked at Sprint Canada in 1997-1998, and he wondered why Company A was developing it if it was already available.

35 On the morning of March 17, 2003, the grievor called M. A. and said that because he still had not received the requested documentation, the meeting would have to be postponed. The grievor received the information on March 19, 2003 and set March 24, 2003 as the date for the meeting.

36 M. A. testified that the documentation that was requested was sent to the grievor. He also testified that his employees were constantly “chasing” the grievor to determine the status of the file. The grievor told them that he was busy and that he would get to the file. M. A. testified that Company A was in a bit of financial “jam” since they had budgeted for a cash refund. He told the grievor that if there was any way that he could expedite the file, it would be appreciated. In cross-examination, M. A. testified that there would have been a serious financial impact on Company A if the claim had not been approved.

37 At that time, the grievor was considering obtaining a job in India to care for his mother. He testified that he had been looking for a one- to two-year employment contract in India to be close to his mother, who required knee surgery (Exhibit G-24). At the hearing, the grievor presented a number of emails seeking employment that he sent to companies in India (Exhibits G-25 through G-30). He also produced a copy of a printout of a Web page (print date January 15, 2003: Exhibit G-31) detailing the expansion plans of Atria Convergence Technologies Pvt. Ltd. (“Atria”). On January 20, 2003, he wrote to Sunder Raju at Atria seeking a one- to two-year employment contract (Exhibit G-32). He received a reply to that email on March 13, 2003, stating that Atria would like to talk to him and setting up a telephone interview for March 24, 2003. The email stated that they would discuss his experience and that they would also explain the job, the terms and the compensation. The grievor replied on March 15, 2003 that he would call at 08:50 his time on March 24, 2003 (Exhibit G-33).

38 The grievor testified that he phoned Atria from a public pay phone in an office building across from his office on his way to the scheduled meeting with M. A. at the Company A offices. The telephone interview started at 08:45 and lasted roughly 45 minutes to an hour. During the interview, he wrote notes on a yellow sticky pad relating to the compensation for the position (Exhibit E-2). In cross-examination, he testified that he had changed pens during the call because one did not write properly. He was also asked whether it would not have been more convenient to take the call from home. He testified that he was simply accommodating Atria’s request. He also testified that he made up the time for the call by skipping lunch and coffee breaks.

39 The notes that he made during the telephone call to Atria (Exhibit E-2) read as follows:

1. V.P. of Engineering, 150 K/yr, contract, Duration 3 year binding.

2. 2 ½ % of the company, with an increment of ½ % /year to a maximum of 5 %

3. 3 million stock options vested on day 1 and at 0 cost to me.

or

200K cash

[Emphasis in the original]

40 The grievor testified that he placed the notepad (Exhibit E-2 was the top page) in a file folder with other personal information including a resumé and correspondence. The grievor also had the CCRA folder for the Company A claim with him. After he and M. A. had conversed in general terms about the project, the grievor asked to be directed to the washroom, which was outside the offices near the elevators. Before leaving, he placed his personal file folder inside the Company A folder and put a rubber band around the outside. He left the file on the meeting table and went to the washroom. The grievor testified that he was gone for about seven or eight minutes. When he came back to the office, M. A. had the file open. The grievor was upset and told M. A. that what he did was unprofessional and that he was snooping. He testified that M. A. banged the table and said that it was “my file.” The grievor told him that it was the CCRA’s file and his personal file. M. A. stated, “[b]ullshit, this is my file,” according to the grievor. The meeting then continued. The grievor testified that M. A. was very embarrassed and realized that it was a CCRA file that he had been looking into. M. A. testified that he did not look in the file when the grievor went to the washroom. M. A. testified that he saw the note (Exhibit E-2) in July, when the grievor showed it to him (see paragraph 60, below).

41 The grievor testified that he reviewed the science of the project with M. A. and told him where he needed substantiation. He testified that when he asked M. A. to provide information to substantiate the claim, M. A. did not provide it but simply said that it was on file. The grievor also asked him to identify people within the organization with whom he could speak about the technology. He testified that there were 17 people working on the project and that when he asked if he could speak to someone, M. A. told him that they could not talk that day. The meeting lasted about another hour, and then M. A. had to go to another meeting. M. A. then sent someone else into the room to meet with the grievor. The grievor did not remember the name of the individual. That person told the grievor that he could not speak about the technology. The grievor testified that there was no point in continuing the meeting, so he ended it and returned to the office.

42 The grievor testified that he had taken some notes at the meeting. He was shown those notes in cross-examination (Exhibit E-25). The notes do not contain a summary of the incident concerning the grievor’s personal file. He explained that he did not include it because he did not write down irrational comments.

43 On March 27, 2003, the grievor emailed Mr. Raju, thanking him for the interview for the position with Atria. In the email, he stated that “… the compensation seems O.K. to me as well” (Exhibit G-34). At the hearing, the grievor also provided a copy of a Web page with news stories from 2001 referring to plans by Atria to invest $130 million in broadband services (print date April 30, 2003: Exhibit G-35).

44 The grievor received a package of documentation from company A on April 28, 2003, which he testified he found of no use. He testified that he then reminded M. A. a number of times that he required further documentation.

45 M. A. testified that in late April or early May 2003 he gave up waiting to hear from the grievor and called Mr. Mar. Mr. Mar told him that the grievor was not there. Mr. Mar went to speak to the grievor about the file, which they then reviewed together. The grievor testified that he told Mr. Mar that he was awaiting further documentation. He asked Mr. Mar whether Mr. Mar could just approve it as filed. Mr. Mar told him that he wanted the grievor to finish the review and asked him to give M. A. “due process.”

46 M. A. testified that the grievor called him and told him that he should not have called his manager because it would now take longer to process the claim. On May 1, 2003, the grievor faxed a letter to M. A. confirming a telephone conversation of the same date (Exhibit G-11). In the letter, he confirmed that M. A. had stated that he had submitted all the documentation in support of the claim and that the grievor could “go ahead and process” the file. The grievor stated in the letter that he would review the documentation received on April 28, 2003 and that he would process the file within the next 30 days. M. A. testified that it was not processed in 30 days. M. A. testified that he kept leaving messages for the grievor, as did his employees, and that they did not receive any answers.

47 On May 9, 2003, the grievor received an email from A. Sety of Atria in which he wrote that “[w]e are interested to move forward” (Exhibit G-36). In the email, he asked that the grievor attend an interview in Bangalore, India on June 20, 2003. He was advised that Atria would reimburse his airfare and other expenses as part of his first pay cheque. In cross-examination, he testified that he was not sure of the spelling of Mr. Sety’s name, in particular whether it had one or two t’s.

48 The grievor was scheduled to go on annual leave as of the end of the day on May 21, 2003. It was his intention to complete the Company A review before going on leave. On May 21, 2003, he received a fax from Company A requesting a meeting to
“[f]ind out where the file stands” (Exhibit G-11). The grievor replied by fax on the same day (Exhibit G-11), stating that he had already communicated the status of the file to M. A., that he was in the process of writing the report and that he was available to meet between 15:00 and 15:30 that afternoon. After that day, the earliest he would be able to meet would be at the end of June (the anticipated end of his annual leave).

49 In examination-in-chief, the grievor testified that no one showed up for the meeting at his office. He testified that he could not complete the review for Company A before his annual leave, as planned, because the requested meeting did not take place. The grievor testified that M. A. came to his office as he was leaving for the day. In cross-examination, he testified that M. A. approached him on Front Street as he was walking to the GO Train. In cross-examination, he was asked why he had earlier denied that he had a meeting with M. A. on that day. He replied that there was no meeting, as M. A. did not show up for the scheduled meeting between 15:00 and 15:30. He testified that he encountered M. A. on his way to the GO Train — it was not a meeting. On the street, M. A. apologized for not coming to the meeting.The grievor told M. A. that he did not wish to speak to him, that he should discuss the file with Mr. Mar and that Mr. Mar could either have the file accepted as filed or have it reassigned to another officer. The grievor testified that M. A. said, “I do not want to deal with a Chinese mother******. [expletive replaced with asterisks]” The grievor testified that M. A. told him that since he was going to leave the CCRA anyway, why did he not just approve the claim? The grievor testified that he interpreted this comment as a reference to the personal information that M. A. had seen earlier, at the meeting on March 24, 2003. M. A. was not asked any questions about this encounter on the street.

50 The grievor testified that he put the yellow sticky note from his telephone interview (Exhibit E-2) in his wallet on May 25 or 26, 2003, before he left for India. He also testified that before leaving he discussed the tax treatment of income from India with an accountant in Toronto.

51 The grievor went to Atria for the job interview on June 20, 2003. He met with Mr. Raju, who introduced him to a number of people. The grievor did not recall their names, and he left their business cards in India. The interview started at about 10:00 or 10:30 and continued through the afternoon until about 16:30 or 17:00, although there were interruptions. The grievor testified that he was given a tour of the company’s facilities. He asked Atria if the contract could be for a shorter period but was advised that it would be for a minimum of three years. Mr. Raju made arrangements to meet with him again on Friday, June 27, 2003. At the second meeting, he met alone with Mr. Raju, who told him that he would receive a written offer. A discussion ensued about the offer’s terms. The grievor made notes of that discussion at the time on a yellow sticky pad (Exhibit G-5). He put the note in his handbag, which he later left at the CCRA after he was suspended. Although the bag was returned, the note was not. The note reads as follows (including the portion in strikethrough):

- 150K/year, 3 year binding contract

- 2 ½ % The company shares are bonus vested immediately on the starting day

½ % increase every year to a maximum of 5% of the company

Offer valid for six months/1 year

No date on the offer

-----------------------------------------

I need to pay for my daughter’s tuition

[The note was written in pen, except for the last line, which was written in pencil.]

52 The grievor testified that the offer was valid for six months to one year and that it was undated. The grievor pointed out that the notes from the meeting were not exactly the same as those made during his telephone interview on March 24, 2003 (Exhibit E-2). He did not write down the stock options because Mr. Raju said that he would receive those when the company went public. He testified that he just wrote down those things that he was interested in and that stock options were not his primary interest at that time. He did not inquire into the amount of outstanding shares. He also testified that Mr. Raju did not explain the stock options. In cross-examination, he was asked why he crossed out “2½ percent.” He testified that Mr. Raju told him that the company was running at a loss, so the 2.5 percent did not mean much. He testified that he did not ask what the shares were worth because he did not care. In cross-examination, he was asked why part of the note was written in pen and the other part in pencil. He testified that, after his second meeting with Mr. Raju, as they left his office Mr. Raju asked one of his assistants about tuition for foreigners. The grievor testified that he grabbed a pencil and wrote the answer down.

53 The grievor testified that Mr. Raju told him at the second meeting that he was going to make him an offer unless the grievor changed his mind and that “[t]he ball was in my court.” Mr. Raju gave him a rough draft of the offer on the following Monday, which the grievor used for a discussion with an accountant in Bangalore. The grievor received an opinion letter from the accountant, B. N. Subramanya, addressing the tax implications of his salary, stock options and other benefits (Exhibit G-38; the original was improperly photocopied, and a new photocopy was introduced as Exhibit G-49). The grievor testified that the letter is addressed to the grievor’s home address in Canada because that was the address on the draft letter of offer that Mr. Raju had provided. He also testified that he does not know why the accountant did not address the tax implications of the stock options.

54 The grievor received a letter from Atria on July 2, 2003, while he was still in India (Exhibit G-39; the original was improperly photocopied, and a new photocopy was introduced as Exhibit G-50) offering him the position of Vice-President of Engineering, starting no later than September 15, 2003. The offer was valid until August 10, 2003. The terms of employment were listed as follows:

Salary USD 150,000 per annum payable monthly net of taxes. Three years binding contract… .

2.5% of the outstanding shares of the Company at the start of the tenure with an annual increment of 0.5% to a maximum of 5%.

3 million stock options vested on day 1 at no cost to you when we go public subject to terms and conditions of the stock option plan or USD200,000 cash.

…

55 He signed the offer on July 8, 2003 and returned it to Atria (Exhibit G-40). In the first or second week of August he decided that he could no longer take the job and told his wife to tell Atria that circumstances had changed.

56 While the grievor was away on vacation, M. A. called Mr. Mar about the status of Company A’s claim. Mr. Mar testified that M. A. asked if the claim could be expedited and if someone else could look at the file. Mr. Mar testified that he tried to find another officer to look at the file but concluded that the grievor was the only one in the office with the necessary expertise.

57 The grievor testified that his return to Canada was delayed until July 14, 2003 due to illness. During his absence, M. A. left two messages on his voicemail saying that the grievor should contact a professor at the University of Waterloo to discuss the technology in the Company A claim. The grievor called the professor on July 16 or 17, 2003. The professor told him that he knew nothing about either Company A or M. A. The grievor then called M. A. to tell him what the professor had said and to tell M. A. that he was “wasting my time.” M. A. told him to wait for his call and two days later gave him the name of another professor from the University of Waterloo. The grievor called the professor and left a message on or about July 18, 2003. The professor called back and left a message on the following Monday, stating that he did not know what the grievor was talking about. On July 22 or 23, the grievor called him. The professor told him that he had had one or two conversations with M. A. but that he did not know much about Company A or the technology. The grievor communicated this to M. A. and told him that he was running out of options. He told M. A. that he was going to make a decision based on what was on file and that he would just complete the report.

58 M. A. testified that he gave the grievor the names and telephone numbers of two “independent” professors at the University of Waterloo. Those individuals were not associated with the company, but he had had discussions with them. He did not know if the grievor called them.

59 M. A. testified that late in July he received a message from someone he knew in the software business telling him that the grievor had come to his house to tell him that he needed to get a message to M. A. The message was that he “needed something” if the claim was to be approved. M. A. testified that one of his employees, M.G., met with the grievor and asked him what he was looking for. The grievor told M.G. that he was looking for $150,000 to approve the claim. The grievor denied ever meeting with M.G.

60 M. A. subsequently called the grievor to find out what was going on. He told the grievor that he got the message from M.G. The grievor then told him to meet him at the corner. M. A. asked why they could not meet in the office, and the grievor said he should come and speak to him. They arranged to meet at the Royal York Hotel. After they sat down, the grievor gave him a piece of paper and told him that it detailed what the grievor needed. The piece of paper was identified by M. A. at the hearing (Exhibit E-2, set out at paragraph 39). The grievor told him that if the listed terms were not provided the claim would be disallowed, Company A would have to appeal the decision, and it would not get any money for a couple of years.

61 The grievor took the document back with him. M. A. testified that he was shocked, that he told the grievor that he was out of his mind and that this was too much. In cross-examination, he testified that he told the grievor that he was “fucking nuts.” The grievor told him that he had two days to agree or he would reject the claim. The grievor then left, smiling. M. A. testified that the whole meeting took 10 minutes. The grievor denied that the meeting occurred and denied showing M. A. the note (Exhibit E-2) since the note had “. . . nothing to do with him.”

62 M. A. talked it over with his wife and then decided to go to the CCRA with the information. He testified that it was likely the following day that he called the Director at the Toronto Centre TSO and left a voicemail stating that there was a serious issue that he needed to talk about. The Acting Director called him back to arrange a meeting, and M. A. then met with that person and another man at the Toronto Centre TSO.

63 Mr. Mar testified that a meeting took place on July 21, 2003 with Ken Parkes, Acting Director; Roy Prince, Investigations; Colin Montgomery, a CCRA employee; and Bruce Allen, Acting Director, Verification and Enforcement. He prepared a note to file on this meeting (Exhibit G-13). A discussion took place about M. A.’s intention to record his conversation with the grievor and about whether the CCRA should contact the police. Mr. Mar’s notes indicate that they also discussed the need to maintain a balanced view, since it was only an allegation at that stage. Mr. Mar wrote that “… we should be careful we don’t act as if the grievor is guilty.” Later that day, CCRA officials met with the police.

64 M. A. testified that he just wanted the file transferred to another officer and was not expecting the police to get involved. The police later called M. A. to get a statement from both him and his employee.

65 Mr. Mar testified that he did not approach the grievor to discuss the Company A file after M. A. had made his allegations. He did not ask for the file from the grievor because he felt that would not be appropriate, given the allegations made by M. A. Mr. Mar went to the Company A office to obtain a copy of the technical submissions and, based on an assessment of risk, he determined that the claim should be “accepted as filed” (on July 24, 2003). He testified that there was no external pressure to approve the file. He also testified that the claim subsequently went through a financial review.

66 Travis Clark, a Toronto police officer, testified on the events leading up to and including the arrest of the grievor. He referred to notes that he had made at the time of the events. He and another officer met with three CCRA representatives on July 21, 2003. The officials at the CCRA requested the assistance of the police in the investigation. Officer Clark arranged a meeting with M. A. for July 23, 2003. M. A. attended the meeting with one of his employees. M. A. made a videotaped statement. M. A. told the police that his claim for a tax credit was delayed an excessive amount of time and that when he met with the grievor, the grievor demanded $200,000 or 2.5 percent of M. A.’s company. M. A. told him that the demand was written on a yellow piece of paper that the grievor then took back. The police then took the statement of the employee who attended with M. A. After the statements were completed, M. A. and his employee were told that they should contact the police if the grievor contacted them.

67 Officer Clark testified that on July 24, 2003 he received a call from Mr. Prince advising him that the Company A file had been reviewed, that the “science was good” and that there was no reason for the delay in its processing. Officer Clark called Mr. Mar in the morning and asked him to schedule a meeting with the grievor. Mr. Mar made notes to file about this meeting (Exhibit G-13). The police wanted to arrest the grievor at the CCRA office. Mr. Mar telephoned the grievor to make an appointment for 15:00. The grievor asked what the issue was, and Mr. Mar told him that he would tell him at the meeting.

68 Officer Clark testified that he became aware that M. A. wanted to wear a body pack to record a meeting with the grievor. Officer Clark testified that the police already had enough evidence to justify an arrest and that it was not necessary to record any meeting.

69 The grievor testified that M. A. telephoned him on July 23, 2003 and left a message that the professors from the University of Waterloo would be in town and that he wanted them to meet him. The grievor testified that on July 24, 2003, M. A. called him and said that the professors were waiting for him at the Royal York Hotel. The grievor testified that he was fed up but that Mr. Mar had told him to give M. A. “due process.” He decided that he would speak with the professors to see if they could provide any substantiation for the claim and that he would then finish the report. In cross-examination, the grievor was asked why he did not ask the professors to come to the CCRA office. He testified that he was planning to meet with them at the hotel and to ask them to come to the CCRA’s offices. He could not find the Company A file in his cabinet, and a colleague informed him that Mr. Mar had been looking in his cabinet. The grievor took a pen and paper and went to the hotel. The grievor testified that he saw M. A. in the lobby and that he asked where the professors were. M. A. told him that they had just left. As the grievor started to leave the hotel, M. A. said the following to him: “You are fucked.”

70 M. A.’s testimony about the meeting at the Royal York Hotel contradicts that of the grievor. M. A. testified that the grievor called him and that the grievor wanted to meet at the Royal York Hotel. At 09:30 on July 24, 2003, the police received a call from M. A. advising them that the grievor had contacted him and that the grievor wanted to meet at the Royal York Hotel. M. A. then went to meet with the grievor. The grievor told him that there was “lots of stuff” going on in the CCRA and that he needed a decision. M. A. told him that he was not going to pay that much money.

71 Brian Stacey, a detective constable with the Toronto Police, also testified. He reviewed notes taken at the time of the events in question to refresh his memory. He became involved in the case on July 24, 2003. Officers Bowman, Clark and Stacey went to the Royal York Hotel and placed the grievor under arrest as he left the hotel. The grievor was handcuffed and advised of his right to counsel. The officers then called for a police car. Officer Stacey searched the grievor and found a yellow sticky note in the front left pocket of his pants. The note was identified by Officer Stacey (Exhibit E-2). The grievor testified that Officer Stacey searched his pockets and found the note in his wallet. The grievor testified that the yellow sticky note had remained in his wallet at all times. In cross-examination, he stated that the yellow sticky note was not in his front pocket, as Officer Stacey had testified. He testified that he “did not care” what Officer Stacey said but did not call him a liar. Officer Stacey asked the grievor what the note was, and the grievor testified that he told him it had something to do with a company in India. Officer Stacey testified that the grievor told him that it was notes for an investment in India and that he had shown it to no one. The grievor also told Officer Stacey that he had just returned from India. He was then transported to the police station.

72 In the interview room at the police station, Officer Stacey again showed the grievor the yellow sticky note (Exhibit E-2). The grievor stated that he was thinking of investing in a company in India.In cross-examination, the grievor was asked if he told Officer Stacey that the note related to an investment, and he replied: “Absolutely not.”

73 Officer Stacey then asked him how two people (he was referring to M. A. and his employee, but did not identify them) could describe what was in the note in detail. The grievor replied that they were “framing” him because he was from India and they were from Pakistan. In cross-examination, Officer Stacey agreed that the note could have been a job offer.

74 Officer Clark visited the CCRA’s offices and advised Mr. Prince of the arrest. He then placed seals on the grievor’s desk in anticipation of possible search warrants.

75 M. A. testified that he taped the conversation with the grievor (on the day he was arrested). M. A. testified that he could make out what was being said on the tape. He gave the tape to Mr. Cameron (the Internal Affairs Division (IAD) investigator). There was a lot of static on the tape, and Mr. Cameron said that he could not make out the words.

76 The grievor was held at the police station for three to four hours. He testified that Officer Stacey told him that he would be spending the rest of his life in jail. The grievor’s family was still in India, and he had difficulties arranging bail and obtaining legal counsel. He was sent to the Don Jail and spent the weekend there. He testified that he was without food and water and that he became physically exhausted. He obtained legal counsel, and his neighbour provided bail.

77 Information listing the charges against the grievor relating to Company A was prepared by the police (Exhibit E-3). The grievor was charged with breach of trust, contrary to the Criminal Code.

78 On July 25, 2003, Toronto Police Services issued a press release (Exhibit E-4) referring to a “joint investigation” it was conducting with the CCRA, as follows: “The Toronto Police Service, and Canada Customs and Revue [sic] Agency are seeking the assistance of the public with information on this matter or any other to come forward.” The press release was reported in a variety of media, including those in Chinese. As a result, B. W., a vice-president of another company (Company B), came forward to report his concerns (summarized later in this decision).

79 M. A. testified that he did not know the other taxpayers who made allegations against the grievor.

80 In cross-examination, M. A. testified that “[e]veryone knows what goes on in India,” and that India is very corrupt. He testified that Pakistan, where he was from, was a “[l]ittle bit better, a little more rigid.”

2. Evidence on AOL’s email reliability

81 The employer raised an objection to the reliability of emails sent and received from companies in India (summarized at paragraphs 37 and 43). In reply to the grievor’s evidence, the employer called a witness to tender evidence on AOL’s email software.

82 Neil O’Brien is a manager of electronic networks in the IAD. He was asked by his director, Josée Labelle, to obtain an AOL subscription on April 23, 2008. He installed the AOL client software on a CCRA laptop computer with the Windows XP operating system. He testified that the version of the client software was 5.0 and that it had been created in October 1999, according to his Internet research. He printed an email from his AOL account at his home on April 23, 2008. He printed out the same email on April 24, 2008 (Exhibit E-28). The email includes, at the bottom of the printout, the date on which the email was printed. Mr. O’Brien testified that the date was automatically generated and that he was not able to change or eliminate it. He testified that the only way to change the date is to alter it in the operating system. He provided an email where he had changed the operating system clock to January 4, 1980 (Exhibit E-29). Mr. O’Brien was asked during cross-examination about the print date on CCRA emails, and he testified that Microsoft Outlook does not put the print date on emails.

83 The grievor testified that he used AOL for a couple of years and that he believes that he no longer subscribed as of August 2003. The computer he had at that time stopped functioning, and he no longer has it. He did not save electronic copies of his emails. He replaced his computer sometime around August 2003. With respect to no date being printed on emails, he testified that that is the way AOL prints. He testified that the way the emails print depends on how the system is set up or configured to print.

3. Company B

84 B. W., a vice-president at Company B, testified. B. W. emigrated to Canada in 1995. At the time of his interaction with the grievor, his English was not strong, and he used an interpreter at some meetings. At the hearing, he testified that his English had improved and that he did not require interpretation.

85 At Company B, B. W. was responsible for accounting and human resources and two technology projects. The other vice-president was responsible for the other two technology projects.

86 Company B started filing SRED claims in 2001. There was no scientific review of the first year’s claim. They filed a claim in January 2002 for 2001. The total amount claimed was $800,000. Lian Bo, another RTA, was initially assigned the file and asked the grievor to take it over. The grievor testified that Mr. Bo explained that he had a conflict of interest on the file, as he played basketball with B. W. B. W. testified that he did not know anyone by the name of Mr. Bo. Mr. Mar testified that he was not aware of any reason for the file being reassigned.

87 The grievor testified that B. W. and another person came to the CCRA office and wanted to speak to him. The grievor testified that the two visitors were under the impression that the file had been assigned to him. They wanted to know when they would get their money. The grievor told them to speak to Mr. Mar. The grievor testified that the file was then assigned to him on June 28, 2002.

88 Company B received a fax from the grievor on July 2, 2002 (Exhibit G-6), asking for documents for the 2001 claim. The grievor testified that the president’s salary was included in the claim, and the grievor needed information as to what duties the president performed because such costs are not usually included. The documentation was provided on July 18, 2002. An appointment was made for July 31, 2002. The grievor went to Company B’s office and reviewed all the documents. He discussed the four projects for which Company B had submitted claims and toured the office to see the work that the company was doing. He was there for approximately two-and-a-half to three hours. B. W. testified that the grievor told him that he would approve two projects and that he “may or may not” approve the other two. The grievor testified that he had asked B. W. about the work he performed on the projects because he could not find his name on any of the time sheets for the projects. He also noted that some of the work had U.S. patents and that he was not sure where the work was being done (work not done in Canada was not eligible).

89 B. W. testified that a couple of weeks later, the grievor called to set up a meeting at his office on Front Street. When B. W. went to the Front Street office, the grievor told him that there were no interview rooms available. B. W. testified that they walked on Yonge Street and entered a cafeteria, but the grievor told him that there were too many people. They then went to an underground mall and found a cafeteria where there were only a couple of people. The grievor bought some juice and started to talk to him about the projects. The grievor testified that he never conducted CCRA business in food courts. He also testified that he never met B. W. outside of the office.

90 B. W. testified that he told the grievor that he was concerned that the claim approval was late. The previous year it had taken six months, and it was taking longer that year. B. W. asked the grievor if he could “speed it up.” The grievor asked, “What can you give me?” He then told B. W. that he wanted money. B. W. did not respond. The grievor told him to take his time. The grievor also told him that he wanted 5 percent of the total amount being claimed (an amount equal to $40,000). The grievor told him that he should prepare the money in $50 and $100 denominations and that when it was ready to call him. In exchange, the grievor told him that he would prepare the documentation to make the application “look better for my manager.” He also told him that it would be easy to get the claim approved and that he might be able to help the approval for next year’s claim as well.

91 B. W. testified that he pretended to say yes to the proposal but that he did not know what to do. He returned home and called his brother, who was also an owner of the company, and they decided that they were not going to do what the grievor had suggested. The following Monday, B. W. called the grievor at his office and left a message. The grievor called back, and B. W. told him that he “… didn’t want to do this kind of thing.” The grievor said, “What are you talking about?” B. W. told him that he knew what he was talking about, and the grievor then hung up. B. W. testified that he did not give the grievor any money.

92 B. W. testified that after a couple of weeks, Company B received another fax asking for more documents (a letter was sent by the grievor on September 19, 2002; Exhibit G-6). After one month had passed, B. W. called the grievor, who said that his part of the work was done. He told B. W. that all of the projects were being approved and that the documents had been sent to his manager. This last contact with the grievor was in October or November 2002. The grievor testified that his report was completed on October 4, 2002, and he concluded that all the projects met the criteria. He also advised the financial auditor that B. W. had not done any of the research and development work. The grievor testified that he got a call from someone in Company B in November or December and was told that “[w]e are losing money because of you.” The grievor understood it to be a reference to the fact that some of B. W.’s salary was considered not eligible. The financial audit was completed on December 17, 2002. B. W. testified that he received his refund in January 2003. His refund was $300,000 of the $800,000 claimed. B. W. testified that some of the amounts claimed were disallowed under the financial review because some of the expenses were incurred outside of Canada. The grievor was not involved with the decision to disallow some of the claimed expenses. He testified that eventually the refund was increased to $700,000.

93 B. W. was asked why he did not contact the police when the grievor first asked for compensation. He testified that he was a newcomer to Canada. He did not have any evidence to present, and it was his word against the grievor’s. He was also afraid that the grievor could “do bad things to him” if B. W. reported him. B. W. testified that he felt that if the grievor kept engaging in this behaviour that he would eventually be caught. In cross-examination, he testified that the CCRA might not have believed him without evidence of the conversation with the grievor. He also testified that he thought that there might be “more bad guys” in the CCRA, so he was reluctant to contact the CCRA.

94 B. W. read about the grievor’s arrest in July 2003, in a Chinese newspaper. In the article, it said that the police wanted to hear from members of the public who had any information. He testified that he would not have gone to the police if he had not seen the article. He had the confidence to go to the police because others had come forward. He went to the police station and talked to some police officers. He later returned for a further interview with a translator, on August 5, 2003, and gave a sworn videotaped statement. B. W. testified that the police requested that he have a translator because there was “one word” that he did not understand. Officer Clark testified that B. W. was more comfortable speaking in Chinese. Officer Stacey testified that B. W.’s English was “broken” and that a translator was used in case he did not understand the questions.

95 B. W. testified that he did not know the other taxpayers who had come forward with allegations against the grievor.

96 B. W. was interviewed by Mr. Cameron, the CCRA investigator, in August 2003. B. W. also testified at the preliminary inquiry in the grievor’s criminal proceeding in 2005.

97 B. W. stated in cross-examination that there was “no proof” that what he said the grievor had done had happened. It was clear from his testimony that he meant that there was no corroborating evidence to support his evidence.

98 The grievor stated, in cross-examination, that he was not aware of any of the allegations relating to Company B until March 2004. He did not meet with B. W. outside of the CCRA office, and he did not seek money from B. W.

4. Company C

99 E. G. is co-owner of a consulting company that helps businesses prepare claims for research and development tax credits. He did not recognize the notes of his interview with the CCRA investigator (Exhibits G-4 and G-4A). At the hearing, I allowed the notes to be introduced and reserved my decision on the weight to be given to them. It would have been more appropriate to introduce the notes through the investigator, who could have properly identified them. I find that the notes do not add anything to the oral testimony of E. G. Accordingly, I have given the notes no weight.

100 E. G. described the process of filing claims as a “very complicated process.” He has had over one thousand clients over the years of his business. His mother tongue is French, and he testified that he had no problems with English comprehension. In cross-examination, E. G. did not agree that the business of filing claims was “fairly lucrative” for his firm. He explained that his business is run on a fixed-fee contingency basis. If the client does not receive any tax credit, the money is reimbursed.

101 One of his company’s clients was Company C, a communications software company. The grievor met with the company and E. G. at the company’s office on January 21, 2003. At the meeting, the grievor told the company that its projects did not meet the criteria. The grievor testified that he had a brief chat with E. G., who told him that he had thousands of clients and many offices across the country. E. G. testified that this was the first time that he had seen an audit conducted in such a way and that he has never seen it done in that manner since. In his view, the purpose of an audit after a first claim was to introduce the client to the research and development credit program and to set out the rules and criteria. Generally, there is almost always an audit for a first claim. It was his experience that the auditor would usually speak about the projects and ask to see the work premises. In this meeting, the grievor began with a short introduction and then proceeded to ask questions that E. G. described as a “demolition” of the project. Nothing resulted from the meeting. E. G. testified that although most of the time in audits one gets a fair indication of what the auditor is thinking, that was not the case after this meeting. The grievor requested further documentation from the company, and it was forwarded to him the same day (Exhibit G-9).

102 After the meeting, E. G. spoke to the grievor and asked him for the audit’s results. E. G. testified that he did not get an answer. The grievor told him that they would meet and that he would call. E. G. told his client that, based on his conversation with the grievor, it was his assessment that the claim stood no chance of being approved. E. G. stated that neither he nor his client ever received the audit report. It was usual to receive a report two to three weeks after the audit meeting.

103 E. G. testified that the grievor called him and left a message sometime in March 2003. When he called back, the grievor wanted to set up a meeting outside working hours at E. G.’s hotel, the Stage West Hotel in Mississauga (E. G. was living in Montreal at that time). E. G. testified that this was the first and last time an auditor had requested a meeting after working hours. The grievor testified that he never met with E. G. outside of working hours and that he does not know where the Stage West Hotel is located. E. G. testified that the grievor did not show up for the first scheduled meeting and that the meeting was rescheduled. The first part of the rescheduled meeting took place in the hotel suite, and they then went to the hotel dining room. E. G. attempted to record the first part of the meeting. He testified that the tape quality was very poor. In cross-examination, he testified that he did not give the tape to anybody, and the investigator did not ask for it. He did not recall if he told anyone that he had taped the conversation.

104 E. G. testified that the grievor told him that he would not accept the projects claimed because they were not “correctly written.” E. G. testified that that did not make sense to him because the way a project claim is written is not important; what is important is the way the project is conducted. The grievor then made a proposal that E. G. termed “unacceptable.” Company C had a claim for two years, and the grievor suggested that the first year’s claim would be approved if the second year’s claim were withdrawn. The second-year claim would then have to be rewritten. E. G. testified that the second-year claim was a continuation of the first-year claim. The conversation then changed to a discussion of whether E. G. had a job for a technical writer. E. G. told him that his company always hired technical writers. The grievor then proposed that his wife be hired for such a position and told E. G. that she had worked at Revenue Canada before. E. G. then asked him if she knew how to write. The grievor replied: “No.” The grievor then suggested to E. G. that his company pay the grievor’s wife and that the grievor rewrite the project. E. G. told the grievor that that was a conflict of interest. The grievor disagreed. The meeting ended, and E. G. told the grievor that he would think about it. The grievor gave him a piece of paper with his wife’s name and telephone number. E. G. did not call the grievor’s wife. He testified that he felt that he was in a difficult position but that he did not tell the grievor whether he would hire the grievor’s wife. E. G. also testified that the grievor told him that his manager and colleagues “accept what I do.” E. G. testified in cross-examination that the CCRA’s investigator was shown the piece of paper with the name and telephone number of the grievor’s wife but that he did not take it. He testified that the paper is somewhere in a box, as he has moved several times. He testified that counsel for the employer did not ask him to produce either the recording or the piece of paper. The grievor testified that he never saw a slip of paper with his wife’s name and telephone number on it.

105 E. G. testified that “weeks later” his client called to tell him that the grievor had set up another meeting at the client company’s office. E. G. went to the meeting. The grievor did not show up. Another appointment was set by the grievor for May 6, 2003. At the meeting, the grievor told them that there were no documents to support the claim. The grievor testified that E. G. was getting “uptight” and saying that the grievor was “demolishing” the project. The grievor testified that E. G. said that he had filed thousands of claims and that all of them were successful. The grievor testified that E. G. kept interrupting. The grievor wanted the taxpayer to answer the questions. He testified that he was not demolishing the projects but that he was simply asking “low-level” questions. He testified that he never used the words “shut up” as reported in the investigation report. E. G. testified that this meeting was even worse than the first; he described it as a “total demolition” of the projects. E. G. recalled speaking with the grievor at the meeting. The grievor was very unhappy and was concerned that E. G. might have talked to the client company about the hotel meeting, which the grievor described as “a private meeting”.

106 E. G. testified that he and his partners decided that the best strategy to protect their client was to wait for the audit report and see the results. They would then have grounds to complain if the claims were not approved. E. G. testified that his client company was very upset with the process and was calling him everyday. In cross-examination, he testified that if one of his client companies did not receive a credit, it would not put his company out of business because they were doing well.

107 E. G. was asked why he did not report the grievor’s request to the CCRA. He testified that he did not want to report the incident because the grievor had implied that his manager and colleagues were “in on the deal.” He was also asked why he did not call the police. He testified that it was not clear to him that he had a valid complaint to file with the police. He said that he did not know the law. He testified that his first duty was to defend the client’s interests in receiving a tax credit, and he did not know what would happen if he contacted the police. He testified that if the police were involved, he would likely lose the client. He also testified in cross-examination that, in his view, extortion or bribing are requests for money; in this case, the grievor asked him to hire the grievor’s wife. He stated that “something could have been managed.” However, when the grievor told him that in fact he would write the claim, E. G. felt that that was a conflict of interest.

108 On May 16, the grievor called the president of the client company and told him that none of the projects met the criteria. The grievor prepared a report on both of Company C’s projects on May 22, 2003 and concluded that neither met the criteria.

109 E. G. testified that he received an email from his client in June or July 2003 advising him that it had spoken with the grievor, that it was told that a report had been filed six or seven weeks before and that it was a “no go.” In cross-examination, he testified that counsel for the employer had not asked him to produce the email.

110 E. G. stated that neither he nor his client received the report. According to the rules, his client had 30 days to reply to a negative report, and failing to reply meant that the client had accepted the verdict. He was concerned about the timelines for a response. In cross-examination, he was asked if this file was the only one his company was involved with that had not been approved. He testified that three claims were rejected (including this one). The first rejection he understood. The second one was somewhat more “borderline,” but the auditor had been correct.

111 When E. G. learned that the claim was not to be approved, he decided to visit the grievor’s manager. While on business, he stopped in at the Toronto Centre TSO on Front Street, likely sometime in June 2003. He was not able to see the manager. When he returned to Montreal, he called, asking to speak with the grievor’s manager. The purpose of his call was to have a meeting with the manager. He spoke to someone whom he testified was the acting manager. E. G. told him that there was a problem with the file and that he did not think that the auditor had correctly done the job. E. G. asked to have a meeting with the acting manager. When E. G. told the acting manager who the auditor was, the acting manager asked him if he “had heard about something.” The acting manager then told him that he could not talk and that someone from “security” would call him back. E. G. received a call in the afternoon from someone in “security” and was asked if he had read the newspaper or heard anything about complaints against the grievor. The complaints against the grievor were explained to E. G., and he was told that the grievor was “not in a good position” and that someone would get back to him.

112 E. G. testified that his client was subsequently advised by the CCRA that the files would be reviewed by a senior CCRA officer. E. G. participated in the review. In the end, the file was approved. In cross-examination, he admitted that further documentation was required for this review.

113 E. G. testified that the name of one of the other complainants seemed familiar. However, he also testified that he never knew or met anyone else who had made a complaint against the grievor.

C. Further charges against the grievor

114 The grievor returned to the police station on July 29, 2003 to surrender his passport, as required by the bail conditions. He was arrested again in relation to the other charges by B. W. and E. G. The grievor had a copy of the job offer letter from Atria with him (Exhibits G-39 and G-40). He testified that he had hoped to show it to someone at a higher level within the police department. He testified that Officer Stacey took the letter from him. Officer Stacey was not asked any questions in cross-examination about the letter. The grievor spent the night in a cell at the police station and was brought to court the following morning, where the additional charges relating to Companies B and C were added (Exhibit E-5). The bail conditions were maintained.

115 He also testified that Officer Stacey asked for his wife’s name and telephone number, which he provided. He testified that his criminal-defence lawyer told him that it was stupid of him to provide it. When the grievor went through the information he obtained from his access to information request, he realized that E. G. did not have any evidence of having received his wife’s name and telephone number. In cross-examination, the grievor agreed with the statement that Officer Stacey asked him for this information in order to manufacture evidence.

D. Suspension and employer investigation

116 Mr. Cameron was assigned the investigation by an email, which he received at the end of the day on July 21, 2003 (Exhibit G-3). The email, from Andre St-Laurent of IAD, states that there was a new case from the Toronto Centre TSO that “… would require a quick response from us.” The email has handwritten notes by Mr. Cameron at the bottom, dated July 22, 2003, at 09:05. In the notes, he states that management had an “expert” review the file in question (Company A’s file), and the review indicated that there was no reason the claim should not have been approved “months ago.” He also wrote that the grievor was “… in dire financial straights [sic] — huge financial problems.” In his testimony, Mr. Cameron could not remember who had told him this.

117 Alice Shields was the director of the Toronto Centre TSO in July 2003. She returned to the office on July 28, 2003 and was briefed by Bruce Allen, Acting Director. She testified that the grievor’s arrest received press coverage in both the Toronto Sun and The Globe and Mail.

118 Mr. Montgomery attended the grievor’s bail hearing on July 28, 2003 and summarized his understanding of the bail conditions in an email to Ms. Shields, Mr. St-Laurent and others as follows (Exhibit E-6):

…

In addition to the standard conditions the following were agreed to:

$20,000 surety

Not to leave Canada, and to remain in the province of Ontario

To surrender his passport and any other travel documents (including passports issued by another country)

Not to attend at any CCRA premises

Not to communicate with any present or former CCRA employees except through counsel

Not to communicate with any employees of [Company B] except through counsel

…

119 The employer did not receive a copy of the actual bail conditions (Exhibit E-9) until late September 2003. The bail condition about contacting CCRA employees was different from that reported by Mr. Montgomery:

…

Not to contact or communicate either directly or indirectly with any current or past employee of Canada Customs and Revenue Agency.

…

120 Ms. Shields suspended the grievor without pay for an indefinite period, effective July 24, 2003 at 09:00, in a letter dated July 30, 2003 (Exhibit E-7). Ms. Shields testified that the allegations against the grievor were extremely serious. The SRED was a high-profile program, and the grievor’s arrest “creates lots of problems.” She testified that his actions could have impugned the reputations of all employees. She did not consider assigning lesser duties to the grievor instead of a suspension because it might have appeared that the employer was condoning his actions and the investigation might have been impeded. She testified that she consulted the local human resources advisor, Ms. McKerron, who provided her with a number of resources, including the code of ethics and conduct (Exhibit E-16) and the CCRA’s discipline policy (Exhibit E-18). She was also provided with a report listing the relevant factors and considerations in imposing discipline. After stating that the employer had been informed of his arrest and charge under the Criminal Code, Ms. Shields stated the following in the letter:

…

Given the nature of your current duties and the seriousness of these allegations, management has decided that it is in the best interest of the Agency and its clients, to suspend you from duty pending an internal investigation into these allegations.

…

121 The grievor was advised in the letter that the IAD had commenced an investigation and that he might be contacted by an investigator. The anticipated deadline for the investigation report was the end of August 2003. The letter also requested that the grievor’s counsel advise the employer whether the grievor had any CCRA files in his possession and that he should make arrangements to return such files immediately. The grievor testified that he did not have any files in his possession.

122 The grievor testified that the CCRA knew about the bail conditions (that he could not contact the CCRA) and yet was asking him to breach those conditions by contacting it. He testified that his criminal-defence lawyer informed him that the employer would have insisted on the bail conditions and that only the employer could change those conditions. In cross-examination, he testified that he took no steps to have the bail conditions changed because there were no steps for him to take. The grievor stated that if he had followed the employer’s advice in the letter, he would have been arrested for violating his bail conditions. He testified that if the bail condition had not been there, he might have contacted the CCRA to explain the yellow sticky note (Exhibit E-2). He testified that he was told by his criminal-defence lawyer that he needed clearance from him before the grievor could talk to anyone. The grievor also testified that his criminal-defence lawyer told him that he did not want the grievor saying anything that would prejudice the case.

123 Ms. McKerron, of the Toronto Centre TSO, testified that the grievor’s criminal-defence lawyer contacted the CCRA after the suspension letter was sent and asked for a copy of the employer’s discipline policy, which she provided. She did not speak to him directly.

124 Mr. Cameron interviewed all the witnesses (some of whom testified at this hearing). He took notes of their statements, which each interviewed person signed. He testified that, in the normal course of an investigation, he interviews the accused employee after interviewing all other witnesses. Mr. Cameron contacted the grievor’s criminal-defence lawyer on August 19, 2003, to offer the grievor an opportunity to be interviewed and to answer questions concerning the events under investigation. On August 28, 2003, the lawyer told him that he was not sure whether speaking to the investigator would violate the bail conditions. He asked Mr. Cameron if the investigation could be delayed until the criminal proceedings were completed. Mr. Cameron told him that it was not possible to delay the investigation. The grievor’s criminal-defence lawyer then told Mr. Cameron that he had advised his client not to accept the offer of an interview (Exhibit E-12A). The grievor testified that his criminal-defence lawyer told Mr. Cameron that the bail conditions prevented the grievor from talking to the CCRA. The employer objected to this evidence because it was hearsay and because it should have been put to Mr. Cameron in cross-examination. I allowed the evidence and reserved my decision on the weight to be given to it. Mr. Cameron testified that the grievor’s criminal-defence lawyer told him that he was not sure whether speaking to the investigator would violate the bail conditions, while the grievor testified that the criminal-defence lawyer told him that it would violate those conditions. The grievor’s evidence is hearsay, and consequently, Mr. Cameron’s evidence is preferred. In any event, the evidence is of limited relevance, as the hearing before me cures any defects in the investigation process.

125 Mr. Cameron testified that he listened to the tape M. A. made of a telephone conversation that M. A. said was between the grievor and himself. Mr. Cameron did not know what the grievor sounded like, so he could not verify the information. He told M. A. that he should turn it over to the police. He does not know if M. A. gave the tape to the police.

126 Ms. Shields sent a letter to the grievor on September 3, 2003 (Exhibit G-44) stating that she had not yet received the investigation report and that she anticipated receiving it by the end of September. The letter also stated that the suspension was being maintained. The letter also stated that her requests in the July 30, 2003 letter for the return of files and for a signed confirmation of receipt of the letter “remained unanswered” and requested a response by September 12, 2003.

127 The investigation report was completed and sent to the regional assistant commissioner on September 4, 2003 (Exhibits E-12A and E-14). The covering memo summarized the report’s conclusions that the grievor had attempted to “extort” money and other benefits from Company B, that he had attempted to “solicit a bribe” from Company A and that he had “attempted to coerce” E. G. into hiring his wife as a consultant to rewrite the submitted claim.

128 The report also contained the following analysis:

…

Throughout the process of gathering information in this investigation, it became apparent that Narayan developed and followed a pattern in dealing with the individuals from whom he sought financial gain. That pattern consisted of the following steps:

- cast doubt on the likelihood that the clients would receive payment for their claims by criticizing the projects they submitted for approval;

- imply that he had the power to reject their claims outright, and (in the case of [Company C] and [Company B]) that he felt pressured to do so by managers and other CCRA employees;

- indicate that the clients would have the right to appeal any decision made to reject their claim(s), but that an appeal process would likely take a year and a half to complete; and

- Remind the clients that they may have been relying on the receipt of at least part of the total identified in their claim(s) to meet their operating costs;

- suggest that he might be in a position to help them, in exchange for their help; and,

 - make his approach, whether it be for a salaried position for his spouse; a contract for himself and/or equity in the client’s company.

…

129 Ms. McKerron testified that when the employer learned of the bail condition that prevented the grievor or his counsel from talking to the investigator, efforts were made to vary the bail conditions through contact with counsel from the Department of Justice, who raised it with the provincial crown attorney. Ms. Shields testified that the CCRA did not ask for the bail condition prohibiting contact between it and the grievor. She testified that there was a great deal of discussion with the Department of Justice on how to provide a copy of the investigation report to the grievor. The CCRA was advised that the bail condition would need to be varied before they could share the investigation report with the grievor.

130 On November 27, 2003, the bail condition prohibiting contact with the CCRA was removed (Exhibit E-10). Ms. McKerron testified that she received the document confirming the bail condition’s removal on December 5, 2003 and that she immediately sent a copy of the investigation report to the grievor (Exhibit E-11), vetted in accordance with the provisions of the Privacy Act (Exhibit E-12A). The covering letter, signed by Mark Andrews, Acting Assistant Director, SRED, stated that the report’s findings indicated that misconduct had occurred. Before rendering a disciplinary decision, the grievor was invited to meet with management on December 17, 2003, to “… provide us with any other information for consideration.” The letter advised the grievor of his right to have a union representative at the meeting. The letter concluded by advising him that disciplinary action could be taken, up to and including termination of employment.

131 The grievor and his union representative, Satnam Chana, met with Mr. Andrews and Ms. McKerron on December 17, 2003. At the meeting, the grievor said that he was not able to provide a reply and requested an extension of time. He said that he needed more information. He also stated that he had received the vetted report only on December 11 and had not had time to secure counsel. The grievor testified that he told the employer at the meeting that he could not make sense of the vetted report. Ms. McKerron testified that one of the concerns expressed by the grievor at the meeting was that he did not know the identities of the taxpayers that had made the allegations against him. She testified that Mr. Andrews told him that they were the same as those in the criminal proceeding. The grievor also requested that the CCRA provide him with the taxpayer files so that he could familiarize himself with them and understand what he was alleged to have done. Ms. McKerron testified that the grievor was provided with the forms to make a request for information under both the Access to Information Act and the Privacy Act. She testified that Mr. Andrews told the grievor that there was sufficient information to provide a response. The grievor also testified that he told the employer that he did not even know where the Stage West Hotel was located.

132 The grievor testified that, when he reviewed the vetted report, his mental state was “not good,” that he was distraught and that he suffered from “paralysis of anxiety.” He read it a few times, and without the names, he could not relate to the allegations. The grievor’s representative wrote to the CCRA on December 18, 2003 requesting an extension of time to allow the grievor to review the report and to review the results of an access to information request (Exhibit E-19). An extension was granted until January 21, 2004 (Exhibit E-20). The documents relating to his access to information request were received on March 24, 2004 (Exhibit G-45).

133 The grievor testified that he was advised by his criminal-defencelawyer to categorically deny the allegations. The grievor testified that since he was under criminal investigation, he had to follow his counsel’s advice. The grievor also testified that he did not have enough information to make an accurate response. His criminal-defence lawyer received the full CCRA files through a disclosure order from the court by the end of 2004. The grievor testified that it was a term of the release of those documents that he was not allowed to see them.

134 A handwritten note was found among the grievor’s possessions and provided to Ms. McKerrall at some point in January 2004 (Exhibit G-5, summarized at paragraph 51). She assumed that the handwriting was the grievor’s and thought that it referred to some kind of negotiation. Ms. McKerrall testified that the note was shown to the interim director of the Toronto Centre TSO, Maria Mihaley. Ms. Mihaley testified that she had not seen the note when she made the decision to terminate the grievor’s employment and that she only remembered seeing it at the time she prepared for this hearing. Ms. McKerrall, who advised Ms. Mihaley on the letter of termination, testified that she felt there was sufficient information in the investigation report to render a decision on appropriate discipline without relying on the note.

135 The grievor responded to the investigation report in a letter dated January 16, 2004 (Exhibit E-21) as follows:

…

I categorically deny the allegations in the IAD report and hence dispute IAD report findings. I am unequivocally and absolutely innocent.

I am still waiting for the return of my personal belongings and the hand bag [sic] from CCRA.

136 The employer returned some personal items to the grievor on January 26, 2004 (Exhibit E-21). The grievor testified that some items were missing. The grievor testified that he was very upset with the failure to return some items, including cash, and the note (Exhibit G-5), which could have assisted him in his criminal case.

137 The grievor testified that he did not see the information laid against him (Exhibit E-5) until March 2004 when his criminal-defence lawyer showed it to him. He testified that it was not until then that he was aware that the charges against him related to the Company A file. When he was asked in cross-examination whether the charges contained in the information were read out to him in court shortly after his arrest, he said that it was possible but that he did not pay too much attention as he was waiting for disclosure.

138 Mr. Mar testified that, sometime after the arrest, a committee was set up to review all the files that the grievor had reviewed. A consultant found that some of the disallowed work was eligible. Mr. Mar testified that this was not unusual as there is a certain amount of variability in assessing claims. He testified that judgement is an important part of the review along with experience and the reviewer’s depth of knowledge.

E. Termination

139 Ms. Mihaley was the person who decided to terminate the grievor’s employment. She testified that she consulted with local, regional and headquarters staff relations employees as well as with the Department of Justice before making her decision. A briefing note was prepared for the assistant commissioner and for headquarters (Exhibit E-24, undated). The briefing note concluded that the grievor’s misconduct“brought disrepute” to the employer and that the employer-employee relationship has been irreparably damaged. It also stated the following:

…

The findings of the report clearly establish that severe misconduct occurred. Each incident on its own is a single-serious act of misconduct warranting termination. The fact that there are three incidents strengthens the case for termination. Based on the findings of the Internal Affairs Division Investigation and the employee’s response, termination on disciplinary grounds is recommended.

…

140 Ms. Mihaley reviewed the investigation report and the grievor’s response to it before making her decision. She testified that the investigation report was a significant part of her decision to terminate his employment. She testified that she did not rely on the police charges to support her decision. Ms. Mihaley reviewed the employer’s code of conduct (Exhibit E-16), as well as the discipline policy (Exhibit E-18), in assessing the appropriate discipline. In cross-examination, she testified that she was satisfied that the vetted investigation report would allow the grievor to respond to the allegations against him. She testified that she was then of the view that, other than age, there were no mitigating circumstances that would justify considering lesser discipline. Given the seriousness of the case against the grievor, she testified that she could not imagine any result other than termination. She also stated that the three complainants not knowing each other was part of her rationale for determining the veracity of the allegations against the grievor. She testified that this was corroborated in her discussion with Mr. Andrews, who had reviewed the files and had found no connection among the three complainants. She also testified that the three complainants going to the police with their allegations was a factor that she considered. She stated at the hearing that the decision to terminate the grievor’s employment ultimately was hers.

141 Ms. Mihaley testified that she did not see a need for a disciplinary meeting with the grievor before administering discipline as there was a need for a timely decision and she already had his response to the findings of the investigation report.

142 Ms. Mihaley sent a letter to the grievor on March 12, 2004 terminating his employment for misconduct, effective March 15, 2004 (Exhibit E-23). The letter summarized the conclusions of the investigation report and then stated the following:

…

Based on the findings of the report and your response, management is satisfied that you attempted to extort a sum of $200,000 and obtain other financial benefits, attempted to solicit a bribe of $40,000, attempted to coerce an accountant representing a third claimant into hiring your wife, and conducted yourself inappropriately in a number of instances. You have seriously compromised the Oath of Office and Secrecy, Code of Ethics and Conduct, Conflict of Interest Code and Guidelines, the organization’s Core Values of professionalism, respect, cooperation, and integrity. Your behaviour and conduct have irreparably damaged the employer-employee relationship and have brought disrepute to this organization.

…

143 In the letter, the grievor was advised of his right to grieve the decision. He was also warned that “… in light of the severity of the allegations and subsequent findings of the investigation” a full review of the files that had been assigned to him would be conducted and that further actions were possible. Ms. Mihaley testified that the file review revealed no additional concerns about the grievor’s conduct.

F. Post-termination evidence

144 The criminal charges against the grievor were stayed by court order on September 11, 2006 (Exhibit E-1). An application by the grievor, under paragraph 11(b) of the Canadian Charter of Rights and Freedoms (the right to a trial within a reasonable time), was allowed. The Judge held that there had been an “inordinate” delay in the charges coming to trial. In the transcript of his reasons, the Judge stated the following:

…

The mere fact that the counts are being stayed under s. 11(b) of the Charter does not mean that he was unjustly terminated at the time in July of ’03. They’re very serious allegations, and I was troubled by the fact that they’re serious allegations, because anybody in a position of trust – in a senior position of trust – as he was undoubtedly in at the time, has to discharge his or her obligations to their employer in a manner that is completely beyond [reproach] and question.

…

145 The grievor testified that he suffered from depression. His arrest in public was the most shameful thing in his life. He testified that he had lost the ability to trust anyone and that he had lost his standing in the community and in the high-technology industry. He was unable to get a job and had lost his ability to support his family. He stated that he was almost unemployable in his field, although he had been applying for work. He tendered a number of emails that he had sent seeking employment, with the earliest dating from August 2003 (Exhibit G-48).

146 In cross-examination, the grievor testified that all three taxpayer witnesses were lying and that he would sue them if he had the money to pay the legal fees. He testified that the police officers also lied and that his criminal-defence lawyer is looking into obstruction-of-justice charges.

147 During the grievor’s cross-examination, counsel for the employer made some allegations about the amount of files worked on and about reports completed by the grievor. Before the employer’s reply evidence, counsel for the employer withdrew the allegations and apologized.

148 The grievor provided a number of documents relating to his financial status (tax receipts, RRSP statements, mortgage statement, property assessment notice and credit card statements) (Exhibits G-37, G-41, G-42, G-43 and G-53). He testified that the statement contained in the notes of the IAD investigator that he was “in financial straights [sic]” was wrong and that he had no financial trouble until after he was arrested.

III. Summary of the arguments

A. For the employer

149 The issue to be determined is whether the evidence shows that the grievor actually committed the acts of breach of trust for which he has been accused. In March 2004, the employer came to the conclusion that he had committed misconduct. The acts comprised serious misconduct, and they justify termination. This adjudication hearing was a hearing de novo, and an adjudicator must come to a determination based on the evidence tendered at this hearing.

150 None of the three taxpayers that testified had anything to gain by participating in this hearing and giving evidence. Their only motivation was to see that the truth was presented. Each of the three taxpayers testified that they had no prior dealings with each other. Three independent witnesses had evidence of the grievor’s wrongdoing. If there had been only one complainant it might be possible to conclude that there was a misunderstanding, but having three independent witnesses makes the evidence of wrongdoing clear and compelling. This consistency in evidence from three independent witnesses must be considered when weighing the grievor’s statements that each of the three is lying.

151 The police found sufficient evidence at that time to charge the grievor, and the Provincial Crown Attorney was satisfied that there was sufficient evidence to prosecute. At the preliminary inquiry, the Judge found that there was sufficient evidence of misconduct to warrant the grievor’s committal to trial. Counsel for the employer submitted that I should take comfort from those conclusions.

152 The CCRA was not the driving force behind the grievor’s arrest, as he alleged. Counsel for the employer submitted that when M. A. went to the CCRA to inform them of his allegations against the grievor, he was advised by the CCRA that he had to go to the police. That was a reasonable response on the part of the employer. Given the seriousness of the allegations, failing to advise the grievor to contact the police could have led to an allegation that the CCRA was attempting to cover up the incident.

153 The grievor was suspended under paragraph 51(1)(i) of the Canada Revenue Agency Act. The suspension was administrative as it allowed for the investigation of the allegations. It was not possible for the grievor to continue in his duties due to his bail conditions. The CCRA also had no choice given the seriousness of the allegations and given how those allegations reflected on the CCRA and on its reputation. Because the suspension was administrative and not disciplinary in nature, an adjudicator has no jurisdiction; see East v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 21, at para 84. In any event, a meeting could not have taken place because of the bail conditions.

154 In the alternative, if no meeting takes place, then there is no requirement for union representation, as the purpose of union representation is to protect rights during the course of a disciplinary meeting. Since there was no meeting, there can be no violation of those rights under the collective agreement.

155 The investigator for the CCRA, Mr. Cameron, attempted to contact the grievor. The CCRA did not realize that the bail conditions prevented any contact with the grievor, and it is absurd to suggest, as does the grievor, that this was a deliberate attempt by the CCRA to get him to breach his bail conditions. In September 2003, when the CCRA realized the bail conditions would restrict the ability of the grievor to respond to the investigation report, it immediately contacted the crown attorney to have the bail conditions varied. That was achieved by November 2003.

156 The employer was required to conduct its own independent investigation and could not simply rely on the criminal investigation. The investigation was conducted in a fair and thorough manner. It was plain and obvious to the grievor that the allegations being investigated were the same allegations that he was facing in the criminal context. His evidence that he was not aware of the charges against him is not compelling. This testimony was self-serving, and it undermined his credibility. He was represented by counsel in the criminal matter, and he was present in court during the preliminary inquiry. It is inconceivable that the criminal proceedings took place without him being advised of the nature of the charges. His counsel would have had the sworn information (Exhibits E-3 and E-5) that provided details of the allegations.

157 The grievor was given an opportunity to participate in the investigation, and he declined, on the advice of his criminal-defence lawyer. Although it was not possible for him to participate at that time because of the bail conditions, the employer made the offer in good faith (not being aware of those bail conditions). In addition, the grievor could have made efforts to have the bail conditions varied.

158 At the first disciplinary meeting on December 17, 2003, the grievor was advised of his right to union representation, and a union representative did attend. At that meeting, the grievor had an opportunity to respond to the investigation report and its conclusions. He did not need any files to be able to provide the explanation for the sticky note (Exhibit E-2) that was given at this hearing. At that time, he also could have provided the employer with the letters and emails on which he has relied at this hearing. Had he done so at that time, it might have been possible to obtain the electronic data to prove the reliability of the emails. The fact that the grievor declined the opportunity to tell his story at the disciplinary meeting speaks to the veracity of the evidence tendered at this hearing. If it were true, he would have provided this evidence at the meeting, and he also would have provided it to the police at the time of his arrest.

159 There were no procedural errors in the investigation. Any errors are corrected by this adjudication hearing; see Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL); McIntyre v. Canada (Treasury Board) (1996),117 F.T.R. 93; Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43; and Turner v. Treasury Board (Canada Border Services Agency), 2006 PSLRB 58. The grievor had access to all the files as well as the ability to cross-examine the witnesses, so any of his concerns about the investigation process have been addressed by this hearing.

160 It is the employer’s position that the grievor’s evidence at this adjudication about the sticky note (Exhibit E-2) was not reliable. The emails he provided at this hearing were not provided in electronic form and are not reliable because printed pages can easily be copied or manipulated. Printed electronic communication is wholly unreliable without the electronic data behind it. The grievor was given an opportunity to provide that data. It was the view of the employer that this email evidence should be given no weight.

161 The grievor also relied on correspondence from persons who did not attend the hearing to give evidence (Exhibits G-38 and G-39). The employer had no opportunity to cross-examine those persons in an effort to test the reliability of the documents. The grievor could have called those persons as witnesses to testify, but he chose not to. The letters should be given no weight for the same reasons as the emails, as well as the failure to call the authors of the correspondence for cross-examination. If the emails and the letters have no weight, then that calls into question the grievor’s explanation of the yellow sticky note (Exhibit E-2).

162 If the author of the Atria letter, Mr. Raju, (Exhibit G-39/G-50), had been called, the employer could have asked him to explain why he would have offered 2.5 percent of his company to a maximum of 5 percent to a man he had never met before. Based on the grievor’s testimony about the company, that represents a vast amount of money. Counsel for the employer also stated that he would have asked Mr. Raju many questions about the details of the job offer, including offering stock options in a company that appeared to be privately held. The Atria letter should be given no weight based on those unanswered questions.

163 The letter from Atria (Exhibit G-39/G-50) was also not reliable. The note that the grievor made in India (Exhibit G-5) does not correspond to the ultimate offer; it is similar but not identical. The job offer refers back to the notes set out in Exhibit E-2. The letter of offer does not appear to have been affected by any ensuing negotiations and therefore does not ring true. In addition, the grievor did nothing with the letter after receiving it. He did not tell anyone at the CCRA, and he did not give notice that he was seeking a leave of absence or resigning. He did nothing to even suggest that he was intending to leave the CCRA. He also chose not to call his wife to testify that she had been looking for a house in India.

164 The grievor also failed to put evidence before other witnesses. The grievor gave evidence that did not correspond to the evidence of other witnesses. Those witnesses should have been given a chance to respond to the grievor’s evidence and to explain any inconsistencies. Counsel for the employer referred me to the rule in Brown v. Dunn(1893), 6 R. 67 (H.L.), and asked me to draw an adverse inference from the failure to put the evidence to the other witnesses.

165 M. A. was not asked questions about the March 24, 2003 meeting that would have allowed him to respond to the grievor’s account of that meeting. As a result, M. A.’s evidence was more compelling. In addition, the grievor’s evidence about bumping into M. A. on the way to the train station was not put to M. A. Concerning B. W., the grievor suggested that the former science officer on the file was in a conflict of interest, which is why Mr. Mar gave the grievor the file. No questions were asked of either B. W. or Mr. Mar about this alleged conflict of interest, so that evidence should be given no weight. Most importantly, the grievor’s representative failed to put to Officer Stacey the grievor’s evidence that when he returned to the police station to hand in his passport, he brought the letter of offer from Atria. I should draw an adverse inference that Officer Stacey would have testified that he had not been shown the letter.

166 One of the most important contradictions was in the evidence about the grievor’s arrest. Officer Stacey testified that the yellow sticky (Exhibit E-2) was found in the front pocket of the grievor’s pants. The grievor testified that the yellow sticky was in his wallet. If it was in his front pocket, his explanation for the document falls apart. He testified that it was a note containing important details about a job offer that he had carried in his wallet for almost four months. His version of events about the sticky note is only remotely possible if the note was found in his wallet. If it was found in his front pocket, his story falls to pieces. It is not believable that he would have left a yellow sticky in his front pants pocket for almost four months. The evidence of Officer Stacey was to be preferred, and the note was in fact found in the grievor’s front pocket. I must therefore conclude that the grievor brought it with him to the Royal York Hotel and that it formed part of his attempt to extort M. A.

167 The “sticky” notes (Exhibits E-2 and G-5) were written with different pens. This suggests that they were written at different times and calls into question the grievor’s version of the events of July 2003. He also did not explain the delay in processing the claim for Company A. The only plausible reason for the delay in finalizing the claim was that it was leverage against M. A.

168 All this evidence casts doubt on the grievor’s credibility. M. A.’s evidence should be preferred to that of the grievor. Without any weight being given to the emails or letters, the grievor’s evidence fails to “meet the smell test” or to have the ring of truth. The evidence of B. W. and E. G. was flatly denied by the grievor. It comes down to whose word to believe. Based on the evidence and the contradictions, the taxpayers’ evidence is to be preferred.

169 Counsel for the employer referred me to the employer’s discipline policy (Exhibit E-18) to show that, subject to mitigation, the misconduct of the grievor justified termination. The grievor’s conduct brought the CCRA into disrepute. He made a misrepresentation for personal gain, solicited a bribe and was in violation of the conflict of interest code. In terms of mitigation, the grievor had only been an employee of the CCRA for 18 months, so his length of service was limited. He did have a good performance review, but it was understandable, given his short tenure. The seriousness of the misconduct went to the heart of his duties as a CCRA employee. His actions were an abuse of power. Even for a long-standing employee, anything short of termination would not have been warranted. The bond of trust has been broken, and it is impossible for the employer to trust the grievor. No other mitigating factors apply.

170 The grievor has asserted that he did not have the authority to approve claims, implying that he was not in a position of trust and so could not breach it. It is misleading to suggest that as an advisor he did not have the ability to approve or deny claims. Although this determination could be appealed, lengthy delays would result. He had the power to approve a claim or to disallow a part of a claim that would create extensive delays. The grievor exercised and breached a public trust. He was charged under the Criminal Code, and obviously, the police agreed that he had breached a public trust. It was absurd to suggest that he had no authority to approve claims and therefore did not breach the public trust.

171 Further, the grievor knew that his employment with the CCRA was over not long after his suspension as demonstrated by his sending emails seeking employment as early as August 2003 — before the investigation was completed.

B. For the grievor

172 The grievor’s submissions rely on one fundamental principle: the presumption of innocence as set out in the Canadian Charter of Rights and Freedoms. In termination cases, which are often considered the “capital punishment” of labour relations, the assumption of innocence is critical. The employer in this case rushed to a predetermined conclusion without a proper examination of the facts. The employer did not listen to what the grievor had to say or pay attention to what he might have needed to defend himself against the accusations.

173 The standard of proof in cases of this nature is high — there must be a compelling quality to the evidence to support a finding of just cause. Concerning the standard of proof, I was referred to Normandy Hospital v. Hospital Employees’ Union, Loc. 180 (1987),32 L.A.C. (3d) 397, where the arbitrator held that in cases such as this “clear, cogent and compelling evidence” is required. I was also referred to Chandler v. Treasury Board (National Defence), PSSRB File No. 166-02-17041 (19871126), where the adjudicator stated that in cases involving “moral turpitude” and the potential for long-lasting effects upon an employees’ reputation, there was a standard of proof that was more than basic probability but less than the criminal standard of a reasonable doubt.

174 The employer came to a predetermination of the grievor’s guilt during the week of July 18 to 24, 2003. After the allegation of extortion was made by M. A., a motive was implied by someone and the file was approved as filed by Mr. Mar just as the grievor was arrested. The employer had already come to a conclusion on his guilt. Its investigation only served the purpose of allowing the grievor to prove his innocence and not to prove that anything had occurred.

175 The investigation did not uncover evidence to justify the grievor’s suspension and termination. The evidence did not show that a bribe had been attempted. The grievor was not given an adequate opportunity to participate in the investigation. The vetted copy of the report that he was provided with was not sufficient for his defence. He requested the taxpayer files to illustrate points in his defence but was not provided with them. His request for an extension until after his access to information request was completed was refused. The employer did not have sufficient evidence to conclude that the grievor engaged in any wrongdoing, and it still does not have enough evidence.

176 The notes made by Mr. Cameron before the investigation (Exhibit G-3) state that the grievor was “in dire financial straights [sic],” which prejudiced the grievor from the very beginning. No one was able to identify where this information came from. In this case, a motive had been established before any discussions had taken place.

177 There was no reference in the suspension letter to his right to union representation or to his right to grieve. In fact, it was a fait accompli as the CCRA had already concluded that he was guilty. By accepting information that came to them as fact without attempting to test its veracity, by establishing a motive without discussion and by not giving the grievor a chance to provide his side of the story, the employer acted contrary to its discipline policy before imposing a suspension.

178 The question to answer is whether, from the evidence at this hearing, it can be concluded that the employer had just cause to terminate the grievor’s employment. It is open to the adjudicator to determine that there was sufficient evidence of just cause at the time of termination and still decide based on the new evidence at this hearing that the grievor should not have been terminated. The grievor should then be reinstated if the employer did not have sufficient evidence at the time of his termination.

179 The employer was faced with a serious matter that had to be investigated when M. A. first brought forward his allegations against the grievor. The employer had an obligation to conduct a thorough investigation. The investigation was not thorough. The employer had to determine if the allegations were true. A man’s life was in the balance. The employer had an obligation to the public and to the grievor. The grievor was known to be a family man and to be religious. People who knew him were shocked by the events. He had earned a position of trust after one-and-a-half years at the CCRA. He had a spotless background, which the employer knew through background checks. Mr. Mar told Mr. Cameron and testified at the hearing that the grievor could be stringent and even a little hard on taxpayers. The grievor was not easygoing with taxpayers although he was respected by some of them and by Mr. Mar. The grievor, like any other CCRA employee, was in an adversarial relationship with taxpayers. That is part of a compliance officer’s job. If a compliance officer is doing a good job, he or she may not be popular. The grievor was quite strict about technological advancement, about where work was done and about people’s responsibilities. He was a valued employee, and he should have been afforded some support from his employer. This does not diminish the employer’s valid concerns. The grievor would have welcomed a thorough investigation. He had a problem with the quality of the investigation and its flawed conclusions.

180 Concerning the conclusions, there was no claim that money changed hands (Exhibit E-12) with M. A. The yellow sticky note (Exhibit E-2) was not considered in the investigation, according to the testimony of Mr. Cameron. The sticky found by Mr. Andrews (Exhibit G-5) was also not considered. Ms. Mihaley did not remember seeing it.

181 The evidence about a conversation between the grievor and M. A. is open to interpretation. What is missing are the details that would have allowed for verification. M. A. cannot even remember the name of the hotel where he first spoke to the grievor. M. A.’s claims are circumstantial without documentation. The physical evidence to support the claims was not used in the investigation. It was not presented at this hearing because it was lost (the note to E. G. with the name of the grievor’s wife, etc.) or unavailable or not of good enough quality. The physical evidence disappeared, and people act as if that were “okay.” Mr. Cameron also seemed to be fine with that in his investigation report.

182 It was clear that the employer made its decision to terminate based on the investigation report since the letter of termination (Exhibit E-23) uses excerpts from it. The grievor’s rights, as set out in the employer’s disciplinary policy (Exhibit E-18), to address the employer’s preliminary findings of fact have been disregarded. The grievor should have been spoken to, and he should have been part of the inquiry. Instead, the employer was arranging to have the grievor arrested. Instead of getting to the bottom of the matter and hearing from the grievor, the CCRA was actually shutting the process down and making it impossible for the grievor to freely express himself on the issues.

183 Mr. Cameron was aware of the sticky note (Exhibit E-2). Company A’s claim was for $509,000 (Exhibit G-11), and the total value of the alleged bribe was over $650,000 plus shares (127 percent of the total claim). What kind of an extortionist would attempt to get something that is worth more than he has to offer? It does not make sense, and had the employer examined this, it would have been able to see that it was not a bribe. Also, on the subsequent note (Exhibit G-5), the alleged bribe amounted to $450,000 plus shares (88 percent of the actual claim), which is not a normal form of extortion. In addition, there are other anomalies. Is it normal for a bribe to extend over three years, and would it reasonably include a percentage of the shares in a company? It should have been evident that it was not a bribe but a job offer. However, the employer had already concluded that he was guilty, and nobody was going to consider evidence that contradicted that conclusion.

184 The grievor’s representative attempted to subpoena Mr. Raju, but subpoenas are not binding internationally, and he did not attend the hearing.

185 The CCRA had discussions with the police about the grievor and assisted in efforts to have him arrested without having a discussion with him. The CCRA not only advised M. A. to go to the police, it also began a process to have him arrested on its premises.

186 The grievor’s representative questioned the quality of the investigation report. The investigator was a CCRA employee who had little oversight. His supervisor was also an employee of the CCRA. There was no critical analysis of the investigation done by the employer, as it accepted the investigation as written.

187 The investigation began during the first bail conditions, which prevented the CCRA from discussing anything with the grievor and vice versa. It is odd that the CCRA was so involved with the arrest but then misunderstood the bail conditions. There are a number of factual errors in the investigation report. Contradictory evidence was allowed to stand without analysis. For example, Mr. Mar stated that the overall length of time to complete the file was not excessive. The evidence of M. A. was contradicted by the detectives, when he stated that a “plan was developed.” Determining who initiated the telephone calls was fundamental (whether M. A. called the grievor or vice versa). As a consequence, the investigation did not take into account whether M. A. was setting the grievor up. Such an internal contradiction undermines the credibility of the report and the decision taken as a result. The stories of the witnesses were inconsistent and were allowed to stand. A reasonable person would want to get answers to those inconsistencies.

188 The analysis section of the report is where Mr. Cameron undermines both his and the CCRA’s credibility. The fact that the grievor was critical or criticizing the projects submitted for review should not be viewed as a negative but as an aspect of his compliance role and the fact that he was stringent. For the Company C file, there was not enough information provided to make a determination, and the officer who eventually reviewed the file confirmed that when he had to get more information to complete the review. It is a fact that the grievor mentioned the right to appeal any decisions on credits, and there is nothing sinister about raising it with clients. As far as reminding anyone about the operating costs and the need for cash flow, this was mentioned to the grievor by M. A.

189 There was no procrastination on the part of the grievor and there was no delay. The normal process is that the grievor writes a report that then goes to his supervisor, Mr. Mar, who decides whether to approve the claim. There is someone else with oversight to see if the grievor has done his job properly. E. G. did not seem to know that he could seek clarification by going above the grievor.

190 The report also contains speculation about what the grievor may have been contemplating, without any evidentiary foundation. Mr. Cameron determines his guilt with very little explanation of how he reached that conclusion. The selection of evidence to rely on also shows that he was predetermining guilt. There was direct evidence available and no explanation given as to why he did not use that physical evidence. What did the investigator do with the physical evidence? Where is the slip of paper that E. G. said he received from the grievor? Mr. Cameron does not seem to care where it went. The recording of the conversation could have been produced. E. G. said that it was of poor quality, but the adjudicator, and not the CCRA, should be the judge of that.

191 The yellow sticky (Exhibit E-2) could have been examined by the CCRA. Officer Stacey testified that it could have been a job offer. That was missed by Mr. Cameron. Also missed was the note found by the employer in the grievor’s bag at the CCRA office (Exhibit G-5). It is important as it is clearly a job offer. Mr. Cameron also had access to the taxpayer’s files and could have examined them to verify the allegations. He either never looked at them or did not understand them. The files would have shown Mr. Cameron that there was no validity to the claims that there were delays. One of the grievor’s counsel reviewed all the files and the length of time it took to process the claims.

192 The grievor was unsuccessful in obtaining access to the taxpayer files through an access to information request. Disclosure was also a problem in his criminal proceeding and played a role in the stay of those proceedings. Why did the CCRA not allow him to see those records to defend his innocence? There was no prejudice to the employer. The grievor was still an employee while under suspension, and he could have been supervised while reviewing the files. The employer wanted a statement from the grievor but did not care what he said, certainly not after all the bad publicity of his arrest. Not only did the employer not actively consider all the evidence, it also wilfully blocked the grievor’s access to documents while asking him to defend himself.

193 Because the employer relied on the criminal charges to support the termination of the grievor’s employment, it should then have to rely on the outcome of those charges. The criminal charges were dismissed. Because the employer relied on those charges to support the grievor’s termination, the grievor should be reinstated.

194 The grievor was not provided with an unvetted copy of the investigation report. There was no reason for that and no legal impediment to providing him with a copy. Fundamental justice requires providing him with an unvetted copy, and it would have aided, not hindered, the investigation. The grievor was not opposed to participating in the investigation if his bail conditions were respected and he was given the tools to participate effectively.

195 In terms of the evidence that came to light at the hearing, it was clear that the grievor was not in any financial difficulties or under any financial pressure. One would have to establish why a 50-year-old with a family and no criminal record would all of a sudden do the things that he is accused of doing.

196 The grievor was anxious to provide a full response to the allegations at this hearing. It was his first opportunity to give the details of his side of the story. The grievor was forthright. He has his quirks. For example, the location of the yellow sticky when he was arrested was an irrelevant detail, but the grievor chose to rise to the occasion when he thought that something was wrong, even when it meant disputing something a police officer said. When he is right, he can be irritating. He is not a perfect person and is narrow in his approach to things — a little more righteous or “holier than thou.”

197 There was evidence available (the missing T2020) that the employer did not produce. The grievor chose not to go to his criminal-defence lawyer to obtain the document, as was his right.

198 Counsel for the employer tried to attack the grievor’s credibility through his questions on the number of files on which he had worked. The grievor did not back away but stood his ground and produced a document to support his claim of the number of files he had worked on. The employer never produced the document to prove its contention. This shows the character of the grievor in that he stands his ground.

199 Overall, when you look at the grievor’s evidence and the detail that he is able to recall, it hangs together. He is an honest, forthright man who wanted to tell his story. The emails that support the fact that he had a job offer are good evidence — they are available and should be given weight. The burden of proof is on the employer, and the grievor is innocent until proven guilty. It is wrong to continue to berate the grievor. That is a continuing pattern, which the grievor hopes will end.

200 Nothing new was added by the taxpayers’ evidence. We saw their personalities and what they might have been like as clients. The taxpayers were not disinterested parties — they were interested in getting their money. They thought the money was owed to them. They thought that the grievor controlled access to that money and that he had stood in their way. He admits to standing in their way since he was not enthusiastic about the projects.

201 M. A. had a way of expression that demonstrated that there was nothing he would not do to “get back” at an Indian Hindi. His comment about corrupt practices in India was a racist slur and a good indication of his character and how he conducts business.

202 The taxpayers have things in common. They come from a small community and demonstrated a similarity in conduct. They never kept notes of anything. If they were organized crime members this might be okay, but in this case they were asking for hundreds of thousands of dollars and didn’t make a simple note of what happened — and cannot recall simple details. They lost or gave back alleged extortion notes. We cannot pretend that they are children and that they do not know the value of keeping evidence and tapes of conversations. Can the CCRA or the adjudicator rely on the credibility of such witnesses? B. W.’s failure to report his allegations to the CCRA does not hold water — why would he not tell them? M.G., an employee of Company A and a material witness, did not testify. M. A. testified that he was contacted by a friend who told him that the grievor was “looking for something.” The failure of the employer to call that witness was important.

203 No taxpayer witness provided any direct proof of alleged misconduct, and all were vague in their testimonies about locations and times. Their pure and unadulterated self-interest taints the credibility of all witnesses. The witnesses were united by their dislike of the grievor. B. W. did not understand some English words, and it is possible that his comprehension was a problem.

204 If the stay by the court is to be given any weight, it is as a marker of the grievor’s treatment by the CCRA. The Judge’s comments were not based on any serious analysis. Facts have to be determined, and the Judge’s opinion is irrelevant. It is for the adjudicator to determine in accordance with the evidence. After the charges were dismissed, there was a window for the CCRA to ask the grievor what happened. The grievor had to call Mr. Mar as a witness and one can see why, since his evidence did not support the findings of the investigation report.

205 The grievor steadfastly maintained his innocence. He turned down an opportunity to plea bargain. He would rather go to jail than admit to something he did not do. He can be seen as a devoted family man, a religious person and a trusted employee. He had good performance appraisals. He had a business-like approach that some did not care for. The fact that the grievor argued with counsel for the employer in his cross-examination was an indication of his personality. He was doing his job for the CCRA, and he was not going to let the taxpayers get away without meeting the requirements for the program.

206 With respect to the documents that the employer says should be given no weight, it does not change the fact that the grievor testified about them. Even if the documents are given no weight, it does not mean that he is not telling the truth. It just becomes an admissibility issue.

207 With respect to the suspension, the employer should not have waited to raise an objection to jurisdiction until final submissions. The employer is correct in stating that if in fact there is no cause for termination, then reinstatement back to the beginning of the suspension is appropriate, and that is what the grievor seeks.

208 With respect to the grievor’s bail conditions, was it really his responsibility to have them changed when it was the CCRA that did not understand them?

209 This has been a painful ordeal for the grievor and has had an impact on his life and health. His ability to find work has been tainted. He should be reinstated. He has been unable to mitigate his losses. He is therefore entitled to wages and benefits from July 24, 2003 until the present. If reinstatement is not possible, he should be compensated for the entire period with interest on the amount owing.

210 I was also referred to Clarendon Foundation (Cheshire Homes) v. OPSEU, Local 593 (1995), 50 L.A.C. (4th) 17. In that decision, the arbitrator held that initiating the police investigation and delegating its duty to investigate to the police means that the employer must accept the consequences and be bound by the results of that criminal process.

C. Reply of the employer

211 The requisite standard of proof in cases such as this is whether there is “clear and cogent evidence” that establishes the misconduct alleged by the employer. (see Mackenzie and Treasury Board (Revenue Canada - Customs, Excise and Taxation) PSSRB File Nos. 166-02-26614 and 15 (19970203)).

212 Mr. Mar’s evidence that these were “just accusations” was also the sentiment of the CCRA at that time. It would have been obstruction of justice for the CCRA to discuss these matters with the grievor while the police were investigating. With respect to B. W. and E. G., the employer does have direct evidence. There is no documentary evidence, but oral evidence can be reliable. The evidence of those two witnesses was reliable. The grievor’s representative had an opportunity to cross-examine them. Although the evidence is of a “he said, he said” nature, it is still reliable.

213 As to whether the sticky note (Exhibit E-2) could be considered a bribe, the police, the crown attorney and the judge at the preliminary hearing all accepted that it could be a bribe. And it is equally reasonable for an adjudicator to interpret it that way. Officer Stacey testified that the grievor did not describe the sticky note (Exhibit E-2) as a job offer, but as an investment opportunity.

214 The grievor’s representative alleged that the employer conspired with the police. However, the employer was simply cooperating with the police, as required.

215 As to delays in the processing of the claims, it has been established that additional data was received from Company A on May 1, 2003 and that there was no explanation for the delay from May to July 2003. Mr. Mar had to obtain information from Company A because he did not want to try to find the grievor’s file. There was no suggestion or evidence that there was not sufficient information on the file.

216 The stay of proceedings was a stay, not a dismissal of the charges. There is a distinct difference. It is also not clear from the stay (Exhibit E-1) that the problems with disclosure were caused by the CCRA. This is not the evidence before the adjudicator.

217 The grievor’s refusal to accept a plea bargain should be given no weight. An alternative interpretation is that he is incapable of admitting to any wrongdoing. The grievor arguing with counsel for the employer is a sign that he is an evasive witness and that he does not wish to answer questions.

218 Concerning the burden of proof, the grievor’s representative is confusing the burden of proof of just cause with the individual evidentiary burden to have evidence accepted. When an exhibit is introduced, the onus is on the party presenting the exhibit to prove its reliability. It does not rest on the other party to prove that it is not reliable.

219 The attempts to subpoena a witness are not in evidence. The grievor had ample opportunity to make arrangements for the testimony of witnesses.

IV. Reasons

220 The grievor has grieved a suspension, a breach of collective agreement provisions relating to the right to union representation and the termination of his employment. The allegations against the grievor are serious and go to the core of the responsibilities of a public service employee. Bribery and extortion, if proven, will destroy the bond of trust between an employer and its employee. For the reasons set out below, I have concluded that the employer has established just cause for terminating the grievor’s employment. I have also concluded that the suspension was justified. In addition, I have concluded that the employer breached its obligation to advise the local PIPSC representative of the grievor’s suspension. I will first address the termination of employment, then the suspension and then the alleged breaches of the collective agreement.

A. Termination of employment

221 Counsel for the employer urged me to take comfort from the police arresting the grievor and from the comments of the judge in granting a stay of proceedings. The grievor’s representative stated that since the court dismissed the criminal charges the grievor was entitled to be reinstated. The hearing before me was a new hearing (a hearing de novo), and I cannot rely on the conclusions of the police in laying the charges or on the comments of the judge. Similarly, given the reasons for the stay of the charges — delay — I cannot rely on that conclusion to support the grievor’s position.

1. Standard of proof

222 The grievor’s representative submitted that the employer was required to meet a higher standard of proof than a “balance of probabilities” because the allegations against the grievor are criminal in nature. That issue was canvassed in Samra v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File No. 166-02-26543 (19960911), where the adjudicator states the following:

…

…the employer must demonstrate by clear, convincing and cogent evidence that the allegation has occurred. While the standard is not that of criminal cases requiring proof beyond a reasonable doubt, it requires more than a mere preponderance of proof.

…

The same approach was followed by the adjudicators in Gale v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 88;Teeluck v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-02-27956 (19980820);andMackie v. Treasury Board(Solicitor General Canada - Correctional Service), 2004 PSSRB 3.

223 The Supreme Court of Canada rejected a “shifting standard” of proof in Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164 (at 169-71):

…

Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities…

…

… There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered…

…

I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.

…

224 More recently, the Supreme Court reached the same conclusion in F.H. v. McDougall, 2008 SCC 53:

…

[40] … 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…

…

[45] To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency… .

…

[49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

…

225 Although the reasoning of the Court was in the context of a civil trial, these conclusions apply equally to other tribunals that apply the civil standard of proof. Accordingly, there is no higher standard that the employer must meet. I am required to scrutinize the evidence with “great care,” to determine whether “… it is more likely than not …” that the alleged events occurred. Also, as noted by the Court, the
“… evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.”

2. Assessing credibility

226 Counsel for the employer objected to the admissibility of some of the grievor’s testimony on the basis that his version of events had not been put to the witnesses (referring to the rule in Brown v. Dunn). At the hearing, I reserved my decision on those objections. The “rule” in Brown v. Dunn is not a rule but a guideline. Fundamentally, it is about fairness: it is designed to give a witness the opportunity to respond to a different version of events or to testimony directly relating to that witness. In most cases, it is not appropriate to prevent a witness (particularly a grievor) from testifying on certain points because of a failure to put those facts to the relevant witness. On the other hand, it is also not fair to put the onus on the opposing party to re-call witnesses to counter new evidence that contradicts that of witnesses who have already testified. The first task of an adjudicator is to determine if, in fact, the evidence is directly contradictory. The second task is to determine how important the contradiction is to a determination of what happened. The third task is then to weigh the contradictory evidence and determine if any inferences can be made from the failure to put the contradictory evidence to a witness.

227 In my view it is not necessary to put a direct denial of events to a witness. In this case, for example, the grievor testified that he never met with B. W. at a food court and that he never met with E. G. at the Stage West Hotel. The evidence of each witness, including the grievor, must then be assessed on its own merits. There are other situations, however, where it is appropriate to draw a negative inference from the failure to ask a witness about anticipated testimony that will contradict that witness. I have addressed those situations in my assessment of the evidence below.

228 The evidence in this hearing was often directly contradictory. My findings of fact largely rest on findings of credibility. A great deal of the evidence relating to the alleged wrongdoing of the grievor was directly contradictory. In assessing credibility, adjudicators have often relied on the test of credibility as described in Faryna v. Chorney, [1952] 2 D.L.R. 354:

…

… In short, the real test of the truth of a witness in such a case must be its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions… .

…

229 More recently, the Supreme Court has examined the proper approach for addressing the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence. In F.H. v. McDougall, the Court (relying on the decision of the British Columbia Court of Appeal in R. v. R.W.B. (1993), 24 B.C.A.C. 1,  at 28-29) set out the approach as follows:

…

… The trial judge should not consider the plaintiff’s evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.

230 Also in F.H. v. McDougall, the Supreme Court addressed the proper approach for determining facts when one party categorically denies the allegations of a witness:

…

[86] … in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case… .

…

3. Findings of fact and conclusions on the termination of employment

231 There are three separate allegations of attempts to obtain bribes or benefits by the grievor. The grievor categorically denies two of those allegations (Company B and Company C) and has provided an explanation for events and documents relating to the Company A allegation. I will first address the allegations that the grievor has categorically denied.

232 E. G. testified about a meeting that took place at a hotel where the grievor suggested that his wife could be hired to rewrite a claim. I find that the evidence of E. G. is credible. I can see no reason why he would have manufactured such a story. There were no inconsistencies in his testimony. On a balance of probabilities I conclude that Mr. Narayan engaged in inappropriate behaviour in soliciting work for his wife in exchanged for approval of a claim.

233 B. W. testified about a meeting at a cafeteria where the grievor suggested that a payment of $40,000 would result in an approved claim. The grievor’s representative suggested that B. W.’s English language skills were poor. I find that he was able to communicate his evidence and that there was no evidence that he could not understand the questions that were asked of him. B. W. agreed in cross-examination that he had “no proof” of the alleged meeting. Of course, it is not the witness’ role to determine whether his evidence meets the legal standard of “proof.” I took B. W.’s statement to mean that he had no documentary evidence or other evidence to corroborate his testimony. In other words, he simply recognized that it was his word against the grievor’s. I find the evidence of B. W. to be credible. His claim was approved, and there can be no suggestion that he had anything to gain by making such allegations. On a balance of probabilities, I conclude that Mr. Narayan attempted to solicit a bribe from B. W. The fact that the claim was approved and that the bribe was not paid does not change the fact that Mr. Narayan engaged in misconduct.

234 The grievor denied the allegations relating to Company A, but he testified extensively on events that he said explained the evidence of M. A. and the handwritten note that M. A., the CCRA and the police perceived to be evidence of a request for a bribe (Exhibit E-2). This handwritten sticky note is the “smoking gun” — and the grievor spent a great deal of his testimony countering it. This exhibit is, on its face, a piece of evidence that demonstrates an intention to seek a bribe from Company A. The grievor’s testimony, which I will review below, was inconsistent and at times diametrically at odds with the evidence of police officers and M. A. This inconsistency leads to a conclusion that his testimony is not credible.

235 First, there was contradictory evidence on the sticky note’s location when the grievor was arrested. The police officer testified that it was in the left-front pocket of the grievor’s pants, while the grievor testified that it was in his wallet. This is important because if it was in his pocket, it helps support the conclusion that it related to a bribe rather than a job offer. The implication is that he had it readily available in order to discuss the bribe with M. A. at the hotel. If it was in his wallet, it tends to support the conclusion that he kept it in his wallet after his trip to India. The implication is that it would more likely relate to the alleged job offer in India since he had placed it in his wallet before leaving for India. On balance, the evidence of the police officer is more reliable. He took notes shortly after the event, and there was no evidence that he had any motivation to make up such a story. The grievor’s evidence is not credible.

236 The evidence on the May 21, 2003 “encounter” with M. A. on the street also undermines the grievor’s credibility. In cross-examination, the grievor said that he met M. A. on the street on his way to the train station. Earlier he had testified that there had been no meeting. He explained this by saying that the encounter on the street was not a “meeting.” I can accept that there might have been some confusion over whether meeting someone on the street constituted a “meeting” in the formal sense. However, this important “encounter” was not put to M. A. in cross-examination. The failure to put this critical piece of evidence to M. A. leads to an assumption that the testimony of the grievor is not credible. On a balance of probabilities, I conclude that this “encounter” did not occur.

237 Another factor that undermines the credibility of the grievor is the failure to call the two professors as witnesses. This piece of evidence is also critical, as it explains why the grievor would go to the Royal York Hotel on such short notice and explains what he understood the meeting to be about. The failure to call either of the professors leads to an inference that the grievor is not being credible. In addition, M. A. was not cross-examined on whether he told the grievor that they were in town and wanted to meet him. Although I believe that the grievor did speak on the telephone with the professors, I do not find it credible that meeting them was the reason he went to the Royal York Hotel on July 24, 2003.

238 There are some further inconsistencies in his testimony relating to his arrest that undermine his credibility. There was credible evidence from Officer Stacey that the grievor told him that the sticky note (Exhibit E-2) was an investment, not the terms and conditions for a job. This is inconsistent with his explanation that he was being offered a job in India. I can see no reason why he would not have told Officer Stacey that it was a job offer, if in fact it had been a job offer. In addition, the grievor testified that he brought the letter of offer from Atria (Exhibit G-39) to the police station on July 29, 2003, and that Officer Stacey took it from him. This was never put to Officer Stacey, and the failure to ask him about the letter leads to an inference that it was not provided. There was no evidence elicited from the police officers as to why they would “bury” this piece of evidence. On a balance of probabilities, I find that the letter was never provided to the police.

239 Another inconsistency that further undermines the grievor’s credibility is his testimony relating to when he knew which companies were involved in the allegations against him. He testified that he did not know that Company A was the subject of the initial criminal charges against him until March 2004. Yet, Officer Stacey testified that the grievor stated at the time of his arrest that he was being “framed” because he was from India and “they” were from Pakistan. This clearly demonstrates that the grievor was well aware of who was making the allegations against him at the time of his arrest. This inconsistency further undermines his credibility.

240 The grievor’s response to the evidence of the three taxpayers and the police officers was that all five witnesses were lying. This further undermines his credibility as a witness. The three taxpayers did not know each other, and yet, each had credible evidence of requests for bribes. The police officers testified from notes taken contemporaneously with the arrest. There was no evidence of any animosity toward the grievor.

241 The grievor introduced emails and letters to support his explanation that the sticky note (Exhibit E-2) was a job offer from Atria. The employer questioned the authenticity of the emails and letters. I have concluded that those exhibits are not reliable for the reasons that follow.

242 It is important to note that the burden of proving the authenticity of electronic documents rests on the person seeking to introduce the document (Canada Evidence Act, section 31.1). The evidence provided must satisfy me as to the integrity of the electronic document. The Canada Evidence Act provides, in paragraph 31.3(a), that the integrity of an electronic document is proven by evidence:

…

31.3(a) … capable of supporting a finding that at all material times the computer system … was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

…

243 There was no evidence of the integrity of the computer system used by the grievor. In fact, he testified that he no longer had the computer on which the documents had been stored. He was also no longer a subscriber to the Internet service provider he had used at that time. The evidence of Mr. O’Brien on the normal printouts for AOL subscribers also raised serious concerns about the authenticity of the emails. The grievor has not satisfied me that the emails are authentic.

244 The authenticity of correspondence from individuals in India, used by the grievor to support his position that the sticky note was a job offer, was also questioned by the employer. The originals of the photocopied documents were produced for the employer. The authors of the documents were not called to testify, which would have satisfied the “best evidence” rule. Normally, a key document is not admitted into evidence unless the author is called as a witness to identify it. I understand that in this situation, it might have been difficult to arrange for individuals in another country to testify. In any event, the evidence seems improbable. From the evidence of the grievor and the letter of offer, it appears that Atria was a private company. This is evident from both its name and the reference in the letter to “when the company goes public.” However, the offer includes a provision offering a percentage of the “outstanding shares” in the company. It was never adequately explained by the grievor how an employee could receive shares in a company that had not yet gone public. I conclude that the letters from Atria are not authentic. I do not need to come to any conclusion on the letter from the chartered accountant. The evidence is ultimately self-serving as it simply reflects an opinion based on information provided by the grievor.

245 Based on the evidence of M. A. and the inconsistent evidence of the grievor, I conclude that, on a balance of probabilities, the grievor did attempt to solicit a bribe from Company A.

246 The grievor’s representative suggested that the employer was required to show why someone like the grievor would commit such acts of breach of trust. I do not agree that the employer must establish a motive for misconduct. The employer is required to prove that misconduct occurred. Acts of misconduct can be committed for a variety of reasons, some irrational. Similarly, the grievor’s representative suggested that the alleged bribes could not be considered as reasonable or normal extortion attempts, therefore supporting the conclusion that the alleged bribe note for Company A was in reality a job offer. The grievor’s representative also argued that the other alleged bribe sought from B.W. was out of proportion to the amount claimed. Misconduct does not have to be rational to be considered misconduct. The grievor’s representative stated that no money changed hands — although that is true, the grievor should not be rewarded for the failure of others to take him up on his request for a bribe.

247 The grievor testified on a number of occasions that he did not make the decision to approve claims but only made a recommendation, referring to himself as a “glorified reporter.” However, that would not be evident to taxpayers. The testimony of the taxpayers confirmed that they understood the grievor to have a great deal of influence over the outcome of their claims. Also, his recommendations would be persuasive, given that his manager testified that he largely relied on the reviews done by his officers.

248 There was a great deal of evidence about the investigation conducted by Mr. Cameron. Since this is a new hearing on the merits of the grievance (de novo), any defects in the investigation process are cured by this proceeding; see Tipple. I note that the grievor did not participate in the investigation (as was his right), so it would have been difficult for the employer to investigate his explanation for the events.

249 I find that there is cogent and compelling evidence that the grievor engaged in activities that constitute a serious breach of trust. Honesty has been described as the “touchstone to a viable employer-employee relationship”: Phillips Cables Ltd. v. U.E, Local 510, (1974) 6 L.A.C. (2d) 35 (Adams). However, dishonesty does not automatically result in termination. To determine whether discharge is justified, an adjudicator will assess a number of factors, including the nature of the offence, the effect on the employer’s operations, and the circumstances of the grievor including any mitigating and aggravating factors.

250 In the common law context, the Supreme Court has stated the test as “whether the employee’s dishonesty gave rise to a breakdown in the employment relationship” (McKinley v. BC Tel, 2001 SCC 38, at para. 48). The court gave expression to this test in a number of different ways:

• Does the dishonesty violate an essential condition of the employment contract?
• Does the dishonesty breach “the faith inherent to the work relationship”?
• Is the act of dishonesty “fundamentally or directly inconsistent with the employee’s obligations to his or her employer”?

This analysis is equally applicable to the unionized setting.

251 Mr. Narayan’s actions strike at the core of the employment relationship and resulted in significant damage to the integrity of the tax system and the employer. Given the power and autonomy of CRA auditors, it is critical to the employment relationship that they be scrupulously honest and reliable.  The dishonest actions of the grievor are fundamentally inconsistent with the obligations of an auditor. The only mitigating factors raised at adjudication were the grievor’s age and the economic impact of his termination of employment. The aggravating factors include the nature of the misconduct, the repetition of the conduct, and the failure to acknowledge any wrongdoing. None of the mitigating factors is sufficient to justify substituting a lesser penalty. The aggravating factors simply reinforce the just cause for termination.     

252 Accordingly, the grievance against his termination is dismissed.

B. Suspension without pay

253 The grievor has grieved his suspension without pay. The employer’s position is that the suspension without pay was an administrative suspension and not disciplinary. Accordingly, it is the employer’s position that I am without jurisdiction to hear the grievance on the suspension. If the suspension is administrative, it is argued, the right to union representation does not apply.

254  The Federal Court in Canada (Attorney General) v. Frazee, 2007 FC 1176, has provided a summary of the jurisprudence on distinguishing administrative suspensions from disciplinary suspensions (at paragraphs 19 to 25). The court states that one of the primary questions an adjudicator needs to answer in coming to this determination is the following: Did the employer intend to impose discipline? However, the court goes on to note that how the employer characterizes its decision cannot be a determinative factor on its own. The concept of disguised discipline allows an adjudicator to go behind the employer’s stated motivation and determine what the employer actually intended. The court outlined some of the considerations in determining whether the actions of the employer are disciplinary:

• the impact of the employer's decision is significantly disproportionate to the administrative rationale being served;
• the effects of the employer's action on the employee, unless the employer's action is seen to be a reasonable response to honestly held operational considerations;
• the impact of the decision upon the employee's career prospects;
• the incident that led to the suspension, or the employer's view of it, could be seen to involve culpable or corrigible behaviour by the employee;
• the suspension was intended to be corrective; and
• the employer's action had an immediate adverse effect on the employee.

255 The first question is the following: What was the employer’s stated intention in suspending the grievor? The letter of suspension states the following:

…

Given the nature of your current duties and the seriousness of these allegations, management has decided that it is in the best interest of the Agency and its clients, to suspend you from duty pending an internal investigation into these allegations.

…

256 Although the letter of suspension refers to the indefinite suspension as “pending an internal investigation,” it also emphasizes the seriousness of the allegations against the grievor. Examining the employer’s actions during the period before the letter was provided to the grievor (July 30, 2003), it is clear that the employer had more information than just allegations against the grievor. Although Mr. Mar stated in his notes from a meeting held on July 21 that “… we should be careful we don’t act as if the grievor is guilty,” the notes of the investigator show that the employer had already reached certain conclusions about that behaviour. Mr. Cameron wrote that the “expert” review of Company B’s file showed that there was no reason the claim should not have been approved “months ago.” He also wrote that the grievor was “… in dire financial straights [sic] — huge financial problems.” In addition, by the time the suspension letter was written, the employer knew that criminal charges had been laid and that bail conditions had been set. The employer’s view of the incident that led to the suspension (the allegations by Company A) was that it involved culpable behaviour by the grievor. In fact, the employer already had some evidence of culpable behaviour by the grievor. In my view, this is sufficient to make the suspension disciplinary.

257 In addition, the grievor was suspended without pay for approximately seven-and-a-half months, which obviously had an immediate adverse effect on him.

258 Counsel for the employer argued that the bail conditions also made it impossible for the grievor to return to work. That is true. However, the employer did not rely on those bail conditions in its letter of suspension. There was no evidence that the employer considered those bail conditions in coming to its decision to suspend the grievor without pay.

259 I therefore conclude that the suspension was disciplinary.

260 I find that the suspension was justified, given the serious allegations against the grievor. There was enough evidence for the employer to conclude that it was not appropriate to have the grievor in the workplace, even in a different capacity. There was also sufficient evidence at the time of the suspension to justify not paying him for the duration of the suspension. This is reinforced by the fact that those allegations have now been proven. Accordingly, the grievance against the suspension is dismissed.

C. Union representation

261 The grievor has alleged a breach of the union-representation provisions of the collective agreement. In particular, the following clauses are alleged to have been breached:

• 37.03: the right to union representation when required to attend a meeting on disciplinary matters;
• 37.04: when an employee is suspended, the employer undertakes to notify the employee in writing of the reason for the suspension and endeavours to give this notification at the time of the suspension; and
• 37.05: the employer shall notify the local PIPSC representative that the suspension has occurred.

262 Although this bundle of rights is commonly referred to as the right to union representation, there is no requirement that the employer advise the employee of his or her right to union representation in the absence of a disciplinary meeting. In this case, there was no disciplinary meeting and consequently no breach of clause 37.03 of the collective agreement. The grievor was advised of the reason for his suspension on July 30, 2003. The employer suspended him, effective July 24, 2003. Clause 37.04 requires the employer to “endeavour” to notify the employee in writing at the time of the suspension and is therefore not an absolute requirement. The failure to advise him on July 24, 2003 can be explained by the fact that the employer conducted an initial examination of the issues and waited until after his first court appearance. The employer met its obligations under that clause.

263 The employer did not notify the local union representative of Mr. Narayan’s suspension. I find that the employer breached the collective agreement obligation in clause 37.05. The grievor did receive union representation after the release of the investigation report and also for a meeting with the employer where he was provided with a copy of the report. There was no evidence of any prejudice suffered by the grievor as a result of this failure of the employer to provide notice to his bargaining agent. As a result, this breach of clause 37.05 will be noted as a declaration.

264 For all of the above reasons, I make the following order:

V. Order

265 The grievance alleging a breach of the collective agreement is allowed in part to the extent that clause 37.05 of the collective agreement was breached.

266 The grievance against the suspension is dismissed.

267 The grievance against the termination of employment is dismissed.

March 26, 2009.

Ian R. Mackenzie,
adjudicator