FPSLREB Decisions

Heard at Ottawa, Ontario,
August 8 to 11 and December 12, 13, and 15, 2016.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1         Micheline Nehmé (“the grievor”) was terminated from her employment as a senior manager with Public Works and Government Services Canada (“the respondent” or PWGSC) after an investigation during which she was suspended first with and then without pay.

2        The grievor referred two grievances to adjudication. The first one dealt with the suspension without pay; it was withdrawn at the hearing. The second one dealt with the termination.

3        For the reasons that follow, I find that the termination was without cause. The grievor is to be reinstated in her job as of the date of termination, which coincides with the start of the suspension without pay.

II. Summary of the evidence

4        The grievor’s position was director general of Integrity Policy and the Forensic Accounting Management Group at PWGSC. The position was classified at the EX-02 level. According to her, that position has been reclassified to the EX-03 level. No evidence was presented to contradict this assertion.

5        In 2013 and 2014, the grievor was a candidate in two appointment processes. She was dismissed from her position because following several investigations, the respondent concluded that she had cheated during the two processes.

6        The first appointment process the grievor applied to, in 2013, included two streams. One was director general, office of small and medium enterprises and strategic engagement, and the other was director general, policy, risk, integrity and strategic management, both at the EX-03 level, within PWGSC, in the Acquisitions Branch. For the purposes of this decision, this process will be called “AB”.

7        The second appointment process, to which she applied in 2014, was for vice-president, professional services, again at the EX-03 level and still within PWGSC, but in the Translation Bureau. This process will be referred to as “TB”.

8        In both processes, the grievor was screened in as meeting the initial education and experience qualifications. Part of each assessment was done by means of an interview. In both processes, she failed at the interview stage.

9        Before the interview, the candidates prepared their answers to the interview questions alone in a closed room. During this time, they could write notes that they could refer to during the interview. The candidates were not allowed any documentation in the preparation room, including any written material, computers, or cell phones.

10        The grievor was dismissed following four investigations into alleged misconduct in the context of the two appointment processes. George Da Pont, then PWGSC deputy minister, signed the termination letter. He testified that he relied on the investigation reports to find that the grievor had cheated by using unauthorized material when preparing for the interviews. Consequently, she could no longer be trusted in the senior management position she occupied in the department.

11        As the four reports constituted the basis of the termination letter, I think it is important to describe them, even though only one report was thoroughly reviewed at the hearing with the examination and cross-examination of its author.

A. Reports

1. Renaud Paquet’s report

12        Mr. Paquet did not testify at the hearing. His report was included in the respondent’s book of documents. Mr. Da Pont acknowledged that it played a role in his decision to terminate the grievor. The significance of this report is that it was part of the investigation into the grievor’s alleged misconduct and was part of the reason for her dismissal.

13        Mr. Paquet was mandated to conduct a fact-finding investigation, the scope of which was “... to determine whether Ms. Nehmé acted inappropriately by using unauthorized material ...” when participating in the two staffing processes. A third staffing process was to be investigated, but Mr. Paquet determined there was insufficient evidence concerning that process to conclude anything.

14        Mr. Paquet ends his report with a list of “rather surprising facts” that according to him establish that the grievor must have made use of “unauthorized material” to prepare her notes. How this was done remains unexplained; nor does Mr. Paquet offer a theory. He did interview the grievor in the course of his investigation and did receive her comments on his report through her counsel at the time, Ben Piper (Appendix 7 to the report). Mr. Paquet did not interview anyone who worked with the grievor. In his opinion, the grievor’s explanations were not sufficient to displace the conclusions he had already reached, as follows:

In reviewing the documentary evidence provided to me, I found a series of rather surprising facts related to Ms. Nehmé’s preparatory notes for the Translation Bureau staffing process:

• Ms. Nehmé’s preparatory notes were not structured according to the interview questions but according to the merit criteria;
• No other candidates structured their notes as Ms. Nehmé did; Ms. Nehmé produced the equivalent of nine full pages of extremely thorough, very detailed, well organized, grammatically correct with no words crossed-out, single-spaced, well written notes in 45 minutes;
• Ms. Nehmé’s notes included an entire section on her management style even though there were no interview questions on it;
• A substantial part of Ms. Nehmé’s notes is very similar to TBS webpages on the Key Leadership Competencies and to PWGSC webpages on client services competencies;
• Ms. Nehmé used a different type of paper than the one provided to her to write her notes.

Ms. Nehmé offered some explanations to justify these apparent anomalies. She stated that she studied around the merit criteria, that she memorized these summaries including the information contained on the said web pages, that she thought that she would need to talk about her management style, and that she wrote what she memorized.

I do not believe Ms. Nehmé’s explanation because of the simultaneous presence of the “surprising facts” listed above. On a balance of probabilities, I rather believe that Ms. Nehmé acted inappropriately by using unauthorized material when participating in the Translation Bureau staffing process.

For the Acquisitions Branch staffing process, I found surprising that Ms. Nehmé produced 10 full pages of notes in 35 minutes. Part of the notes does not seem to directly relate to the questions. The notes included one half of a page containing an almost “word for word” citation of the four guiding principles of Blue print 2020 outlined in a webpage. There were no interview questions on that topic. Also, Ms. Nehmé did not use the same paper as the other candidates did.

Ms. Nehmé explained that she always writes a lot of notes. She said that she memorized the Blueprint 2020 guiding principles since she was convinced that she would need that information to answer questions. She also stated that she wrote what she memorized in order to help her answering the last interview question.

I find it difficult to believe that Ms. Nehmé could have written nine full pages of well structured, well organized and grammatically correct notes in 45 minutes (Translation Bureau), and 10 full pages of the same type of notes in 35 minutes (Acquisitions Branch). These notes are reproduced at Appendixes 1 and 4 of this report. Furthermore, for both staffing processes, Ms. Nehmé wrote on paper that she brought with her or that she said that she took at a printer close to where she was.

[Sic throughout]

15        Mr. Paquet concludes that for the TB process, the grievor “acted inappropriately by using unauthorized material”. In the AB process, there is no such conclusion, only that Mr. Paquet finds it difficult to believe she could have written the notes.

16        On March 24, 2015, Mr. Piper responded to the draft report on behalf of the grievor. He made several objections to its conclusions, which he voiced again in August 2015 before the grievor was dismissed, in response to all four investigations. I have summarized the objections in the next few paragraphs.

17        For the AB process, Mr. Paquet indicated that the grievor’s notes essentially followed the interview questions. The inference to be drawn had to be that the notes were written during the preparation time, after the grievor received the questions. If “unauthorized material” was used, it would mean that the grievor would have had to bring in already prepared notes that would have gone undetected. She would have had to sift through these prepared notes, organize them according to the interview questions, and copy the relevant parts for the purpose of the interview. Since her writing speed and the organized nature of her notes were at issue, the “unauthorized material” theory just adds more complexity rather than explaining why the notes are so thorough. If the 10 pages of notes were prepared ahead of time, then there is no explanation for the fact that they follow the interview questions.

18        For the TB process, the report emphasizes the fact that the preparatory notes seem to follow the Statement of Merit Criteria (SOMC), as opposed to the questions. They also uncannily reflect government websites.

19        The report disregarded the grievor’s explanation, which is that she memorized information according to the SOMCs and that she wrote her answers according to the criteria listed in the questions. The fact that others did not proceed that way could not be held against her. The report also disregarded the technique she used, namely, the “memory dump”, which consists of writing down everything that has been memorized on a given subject even before starting to look at a question. The detail of the notes and how closely they resemble the source material can be explained as a memory phenomenon, as something akin to a concert pianist who can play several hours of complex music without ever glancing at sheet music.

20        The grievor’s use of different paper than was provided can be explained. In the first case, she had with her a blank pad of lined paper, which she preferred to the paper to be provided, as she was not certain there would be enough. In the second case, she had been shown pads of blue paper; she sought white paper as she dislikes writing on blue paper.

2. Alexandre Picard’s report

21        The respondent called Mr. Picard to testify at the hearing about his report. He worked in PWGSC’s Staffing Oversight Unit (SOU) and was tasked with investigating what had happened in the two staffing processes, specifically “to conduct an analysis of the interview notes of the employee …” (SOU Report, June 30, 2015, page 2). His investigation occurred at about the same time as Mr. Paquet’s investigation, and indeed, Mr. Paquet refers to exchanges he had with Mr. Picard on the matter.

22        The report analyzes the contents of the notes and considers the speed at which they were written. Mr. Picard explained that to analyze the contents, his methodology consisted essentially of comparing the notes with existing web documents.

23        For the AB process, the report makes the following findings. The grievor’s notes are headed with the question numbers, “Q1”, “Q2”, “Q3”, etc. There are also extra pages that, although not linked to a question per se, reproduce Blueprint 2020 principles and PWGSC’s Client Service Strategy. There is also “an almost word for word transcription” of PWGSC’s Program Alignment architecture. The report adds: “Neither of these documents can be linked to elements of response to any of the questions at play nor are they part, after verification, of the expected answers.”

24        They might not have been part of the expected answers, but the fact is that in the interview notes of one of the assessment board members, it appears that the grievor integrated those components to answer a question on PWGSC’s role within the federal government. As pointed out during Mr. Picard’s cross-examination, the successful candidate also included in his preparatory notes both the Client Service Strategy and Blueprint 2020.

25        In his testimony and in his report, Mr. Picard asserted a number of times that the grievor had not answered the questions in her preparation notes but rather seemed to have based her notes on the SOMC that appeared in the advertisement poster. When asked why this was problematic, he answered that this was not the proper or usual way to prepare for an interview.

26        A good part of the report is devoted to showing how closely the notes reproduce what appears on various government websites. The similarity is indeed striking. From that similarity, the report draws conclusions as to the percentage of words used in the notes (e.g. 50%) that perfectly replicate what is found on the website. An added assertion states that the word order is 100% identical to the word order found on the website.

27        These conclusions are rather puzzling. When cross-examined, Mr. Picard admitted that the word order was not always 100% identical. He also explained that to establish his percentages, he took those parts of the websites that were reflected in the notes but not the parts that were not reproduced.

28        As an example, the report states as follows at page 13: “The employee perfectly replicated 95 out of 191 words (50%) from the Acquisitions Program Integrated Business Plan 2014-2015.”

29        The “Acquisitions Program Integrated Business Plan 2014-2015” is 37 pages long. The “Executive Summary” is two pages long. The grievor’s preparation notes reproduce the first three paragraphs (half the page) of the Executive Summary in point form. Her notes were organized under headings that do not appear in the Executive Summary — “AB priorities”, “AB mandate”, “AB vision”, and “priorities”. Under those headings, she did reproduce the content but with many abbreviations. She also added items and restructured the information. In other words, the notes appear to be a distillation of information as opposed to a pure reproduction.

30        The report also comments on the writing speed, stating that it would be difficult (impossible is implied) to write 12 pages (1980 words) of notes in 35 minutes (in the AB process). The report mentions a speedwriting test given to an anonymous employee to see how much of the notes she would be able to reproduce in a 35-minute period; the result was 4.5 pages.

31        Counsel for the grievor asked that this evidence be disregarded. Counsel for the respondent agreed. Mr. Picard was not asked any questions about it. I stated at the hearing that I would not take this evidence into account, as I find the experiment devoid of any scientific merit — too many variables were not controlled, so the result is completely meaningless. However, I do want to mention the fact that this information was part of the report and that it was presented as hard evidence that further confirmed the allegation that it would have been impossible for the grievor not to have cheated. It seems to me an investigative report should report the facts as they are found. This type of experimentation is not only completely out of place; worse, it is dangerously misleading.

32        The notes prepared for the TB process were also examined. In this case, the report states that the prepared notes directly reflect the SOMC as provided to the candidates ahead of the interview. Instead of being headed, as in the other process, by “Q1”, “Q2”, “Q3”, etc., the notes are headed “K1”, “K2”, “K3”, “K4” (i.e., knowledge criteria), “LC” (for leadership competencies), and “Client Service Competency (level 3)”, alluding to the criteria to be evaluated. The notes also include a page-and-a-half entitled, “Mgt style” written in a personal style, providing information on the grievor’s management experience. Finally, two pages show the “TB Transformation Agenda”. Again, the report demonstrates at length the similarity between the prepared notes and various government web pages. Again, in cross-examination, Mr. Picard admitted that the words from the notes were not 100% in the same order as in the original websites (as asserted in the report) and explained again that the proportion was established by looking only at the corresponding words, not entire web pages.

33        The writing speed is again commented on. The speed is very high and is not comparable to the other candidates. The grievor wrote approximately 1980 words in 45 minutes (curiously, the same amount of words previously written in 35 minutes). The other candidates wrote nowhere near that amount (2.5 to 6 pages, and no word count was given; the grievor’s notes cover 9 full pages).

34        The report does not have conclusions as such. Each process analysis ends with Final observations, which are as follows:

Final observations on process 2013-SVC-IA-HQ-96878 (Acquisitions Branch)

The SOU has made the following observations:

• The preparation notes were designed and linked with the criteria of the SOMC, and not in link with the actual interview questions;
• Numerous elements present in the preparation notes of the employee are identical in nature and structure to existing sources;
• The number of pages produced by the employee significantly exceeds the number of pages produced by other candidates, in quantity and in content;
• The number of words written by the employee in the allotted time corresponds to more than double of the average output, notwithstanding the fact that this calculation excludes any allotted time to read questions, strategize and formulate an answer;
• The test conducted by the SOU yielded an output which represents half of the output of the employee, notwithstanding the fact that this excludes any allotted time to read the questions, strategize and formulate an answer.

35        The preparation notes were organized following the sequence of the interview questions, with headings marked “Q1” through “Q6”. As will be described later, the questions started with the assessed criteria contained in the SOMC attached to the advertisement for the position.

Final observations on process 2014-SVC-IA-21138 (Translation Bureau)

The SOU has made the following observations:

• The preparation notes were designed and linked with the criteria of the SOMC, and not in link with the actual interview questions;
• Numerous elements present in the preparation notes of the employee are identical in nature and structure to existing sources;
• The TBS Key Leadership Competencies and PWGSC’s Client Service Competency – Level 3 have been reproduced almost integrally and with extraordinary resemblance to its original source;
• The number of pages produced by the employee significantly exceeds the number of pages produced by other candidates, in quantity and in content;
• The number of words written by the employee in the allotted time corresponds to more than double of the average output, notwithstanding the fact that this calculation excludes any allotted time to read questions, strategize and formulate an answer;
• The test conducted by the SOU yielded an output which represents half of the output of the employee, notwithstanding the fact that this excludes any allotted time to read the questions, strategize and formulate an answer.

36        In this process, the notes were headed “K1”, “K2”, “K3”, “K4”, and “LC”, which were the criteria enumerated in the SOMC. Each question to be prepared started with the criteria to be assessed. For example, under Question 1, there appeared the following text:

Assessed criteria:

K1:     Knowledge of the legislative, policy and business framework of the Translation bureau

K2:     Knowledge of business practice in a cost recovery, Special Operating Agency (SOA) or revolving fund environment

KLC2: Strategic Thinking – Analysis

37        This was followed by the question itself, which read as follows:

As you know, the Translation Bureau plays a pivotal role in enabling the Government of Canada to meet its official languages obligations and is a key component of the federal government’s service delivery infrastructure. Founded in 1934, the Translation Bureau has become the federal government’s centre of expertise in linguistic services, namely translation, interpretation and terminology. In 1995, it was established by Treasury Board as a “Special Operating Agency” (SOA) and was granted authority to operate a revolving fund.

Could you please give us a brief overview of the key policy instruments and business practices governing an SOA such as the Translation Bureau, as well as what you consider being the key challenges, advantages and disadvantages of offering services under a revolving fund model in today’s environment?

38        Under Question 3, the following text appeared:

Assessed criteria:

KLC1:          Values and Ethics – Integrity and respect

KLC4:          Management excellence – Action Management, People Management

39        Question 3 read as follows:

You have just recently been appointed as the VP, Professional Services and you are realizing that 2 of your 6 translation units are not producing the expected results: they have under average productivity results, outsourced a significant number of translation requests to the private sector, they have above average operating costs and have a large numbers [sic] of grievances. In reading the performance evaluation reports for the unit managers, you noticed that all managers have received “met or surpassed” for the last 2 years. When discussing with your second-in-command, he tells you that it’s not in the Bureau’s tradition to give a “do not meet” and that the situation in the 2 units is normal given that we have no control over the demand and that it is fluctuating.

Could you please tell us how you would approach this situation? What measures would you put in place to correct the situation and ensure that the units are efficient? How would you deal with the employees/second-in-command?

40        The criteria mentioned in that example appeared in the SOMC accompanying the advertisement for the position. Under “Essential Qualifications” are the following several headings: “Education”, “Experience”, “Knowledge”, “Key Leadership Competencies”, and “Other Competencies”. The criteria under the last three headings appear as follows:

KNOWLEDGE

Knowledge of the legislative, policy and business framework of the Translation Bureau.

Knowledge of business practice in a cost recovery, Special Operating Agency (SOA) or revolving fund environment.

Knowledge of business process improvement initiatives such as Lean management, end-to-end process transformation, enterprise productivity or integrated operations. [This appears as a criterion in Question 2 of the interview.]

Knowledge of emerging trends in social and collaborative media, including language technology, and their potential impacts on operations and business activities. [This appears as a criterion in Question 4 of the interview.]

KEY LEADERSHIP COMPETENCIES

Values and Ethics (Integrity and Respect)

Engagement (People, Organizations, Partners) [This appears as a criterion in Question 2 of the interview.]

Management Excellence (Action management, People Management, Financial management)

Note: For information on the Key Leadership Competencies, please visit the following website: [Treasury Board Secretariat website link]

OTHER COMPETENCIES

Client Service Competency – level 3 [This appears as a criterion in Question 5 of the interview.]

Note: You will find information regarding the PWGSC Client Service Competency at [PWGSC website link]

41        In cross-examination, Mr. Picard had to admit that some of his conclusions were not entirely supported by facts. For instance, at page 4 of his report, he indicates that “... for question 1, we could not trace any of the listed elements of response included in the core preparation notes in the actual verbal response to the interviewers.” This is not so. A comparison of the preparation notes and the notes taken by one of the interviewers shows many commonalities. For question 2, Mr. Picard writes: “A review of the preparation notes for question 2 (two pages) also raised issues with the fact that many elements of the response were not linked with expected answers.” Two comments must be made in this regard. The first is that the fact that a candidate misunderstands a question and wrongly answers it does not in itself constitute evidence of cheating. Secondly, the type of answer that the grievor provided in her notes and oral interview did in fact correspond to the second part of the answer key for that question, “Other relevant answers include ...”.

42        Mr. Picard’s report concludes that there is considerable similarity between several websites and the grievor’s notes. The report states that the notes were unusually clear and abundant and were responsive to the SOMCs, as opposed to the questions. In response to a question in cross-examination, which was whether Mr. Picard’s theory was that the notes were written before the preparation period, he answered: “That’s not what I’m saying, not directly.” He added that his report consisted mainly of observations.

3. The Public Service Commission’s reports

43        The Public Service Commission (PSC) produced two reports, one for each process. Both reports were authored by Alain Cousineau, who did not testify at the hearing. Both conclude that the grievor committed fraud, within the meaning of s. 69 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13), by knowingly using unauthorized material during her preparation time and interview.

44        The basis for that conclusion is the same in both reports. On the balance of probabilities, it was unlikely that the grievor could have produced the notes she prepared. The notes were too detailed and too close to website material and were closer to that material than to her own typed study notes, which she claimed to have memorized and reproduced. She used different paper than the other candidates did. The report states clearly that the grievor must have brought in notes from the outside. How she could have done this is not part of the analysis, as stated in the following extract (found in both reports, at paragraph 59 of the AB process report and at paragraph 71 of the TB process report):

In order to establish that dishonesty occurred in the appointment process, it is not necessary to establish how Ms. Nehmé would have brought the unauthorized material with her into the preparation room. Knowingly using prohibited material during an appointment process, when the instructions stated this is not allowed, is sufficient to conclude that a candidate in an appointment process acted dishonestly.

45        The conclusion is summarized in the following paragraph for the AB process:

77. The evidence gathered throughout this investigation demonstrates, on the balance of probabilities, that is more likely than not that Ms. Nehmé had at least some of her notes written prior to the interview preparation and used these notes, which was contrary to the instructions.

46        For the TB process, the conclusion is as follows:

87. When considering the above-mentioned facts together [the fact that the grievor did not remember exactly where she had taken the blank white paper], with the volume, detail and precision of Ms. Nehmé’s handwritten notes, as well as the fact that no other candidate in this appointment process used paper other than the paper provided, it is more likely than not that Ms. Nehmé used unauthorized reference material during the interview preparation time. The evidence gathered throughout this investigation therefore demonstrates, on the balance of probabilities, that Ms. Nehmé had her notes written prior to the interview preparation and used these notes, which was contrary to the instructions.

47        In these reports, as in the previous reports, it is the improbable thoroughness of the grievor’s preparation notes as well as the use of different paper from that provided to the candidates that leads to the conclusion that she must have brought in previously written notes for the interview.

B. Respondent’s evidence on the staffing processes

48        The respondent called as witnesses the two administrative assistants who were in charge of interview preparation for the AB and TB processes. Their duties consisted of welcoming the candidates, bringing them to the preparation room, providing the interview questions, reviewing the instructions with the candidates, and, once the preparation time was over, bringing the candidates with their notes to the interview room.

49        Karine Thibodeau was an administrative assistant in Human Resources at PWGSC at the time of the AB process. On the day of the grievor’s interview, she greeted the grievor and brought her to the preparation room. She took the grievor’s Blackberry and handed her an envelope containing the questions and instructions. There were some sheets of paper on the table that Ms. Thibodeau had prepared as a Word document, which were lined and headed by the title “Notes”. She testified that she did not remember if the grievor had shown her a pad of paper that she intended to write on to prepare the interview questions. She added that had she been shown the pad, she would have checked it and initialed it. Her initials do not appear on the preparation notes.

50        After the preparation period, Ms. Thibodeau came to get the grievor to bring her to the interview room. According to the set procedure, she would take the questions and preparation notes and place them in the envelope to bring to the interview room, where they would be given back to the candidate. In cross-examination, Ms. Thibodeau admitted she had no specific recollection of that day, which is also stated in Mr. Paquet’s report. Ms. Thibodeau also admitted that she does not remember noticing when she picked up the notes to place them in the envelope that the grievor had used her own pad rather than the paper provided. 

51        Mélanie Joanisse was the administrative assistant to the Translation Bureau’s chief executive officer at the time of the TB process. She greeted the grievor and escorted her to the preparation room. She was unsure whether she had taken the grievor’s personal belongings (coat, two cell phones, and a briefcase) at that time or when she returned a few minutes later with the envelope containing the interview questions. In the meantime, the grievor had procured some white unlined paper that she showed to Ms. Joanisse. The latter had not prepared the envelopes, and did not know if the envelope contained paper to prepare the questions. In the preparation room, there was a pad of lined blue paper.

52        Ms. Joanisse testified that she saw the white paper but that she did not examine it closely. The grievor told Ms. Joanisse she did not like writing on coloured paper and so did not want to use the blue pad provided. Ms. Joanisse left the room after ensuring the grievor had read the instructions. She told the grievor she would return to advise her five minutes before the preparation period was to end. She did so; the grievor was still writing. Five minutes later, she had to tell the grievor to stop writing. Ms. Joanisse could not remember if she or the grievor had put the notes and questions together to place in the envelope for the interview.

53        The respondent also called as a witness Karine Baron, a manager in executive staffing at PWGSC at the time of the TB process, which she oversaw. She was also part of the assessment board. The envelopes with the interview questions and instructions were prepared under her direction by her assistant, Ms. Joanisse, or by another assistant. She would have instructed them to include lined notepaper titled “Notes” in the envelope. One of the candidates did not have any notepaper in his or her envelope and chose to write on the blue pad that was provided in the room.

54        Ms. Baron testified that she took the notes from the envelope to hand them to the grievor for the interview. She did not remember noting anything special about the notes. Once the interview was finished, she would collect the questions and notes from the candidates. If any lined paper in the envelope was unused, it would be used for another process. Ms. Baron could not recall if any unused notepaper had been in the grievor’s envelope.

55        At the interview for the TB process, two assessment board members noticed that the grievor appeared to have copious notes, from which she read profusely. Examining the notes more closely after the interview, the assessment board members found that the notes were abundant and well-structured and that they had been written on paper different from what had been provided to the candidates (either the lined or the blue paper). Senior management then decided to investigate.

56        Another witness for the respondent was Ninon Huard, a human resources specialist who had worked with the grievor on other appointment processes for which the grievor had been the hiring manager. Ms. Huard testified that at some point between March and June 2014, the grievor asked her what was done with interviewees’ notes once the interview was completed. Ms. Huard apparently answered that those notes were kept until someone was appointed to the position, after which they were destroyed. Ms. Huard found the question a little odd, which is why she remembered it. Ms. Huard was not questioned by any of the investigation reports’ authors. There was no further evidence on this point.

C. Grievor’s evidence

1. Witnesses

57        The grievor called four witnesses: Brad Brohman, Lise Charbonneau, Renita Halladay, and Andrea Knight.

58        Mr. Brohman was a senior advisor to the British Columbia premier, and he specialized in alternate delivery models and public sector governance when the federal government recruited him through an exchange program to head the Canada Student Loans Plan (CSLP). Mr. Brohman explained that in 2000, the major banks, until then the lenders and record holders of all post-secondary student loans, decided to withdraw from the business, leaving the federal government in a scramble to repatriate the program and create a viable alternative.

59        The first order of business was to hire three managers who would set up a team of 30 to 40 employees. The grievor was recommended as a possible manager. Mr. Brohman thought her resume fit his needs, as it showed advanced analytic skills. He met with her. At first, she was not interested, but she then called back a few months later to take the job.

60        The grievor was a precious asset to the team. She had strong human resource skills, strong mathematical skills, and she was an excellent negotiator. This was important as there was much negotiation to be done with the provinces, given their role in education.

61        Mr. Brohman noted how the grievor was always extremely well prepared for meetings and presentations and how he relied on her for his presentations. At one point, since she had prepared a presentation, he thought he would do her a favour by asking her to present the second half of it. She did so, but afterwards, she was extremely angry. She told Mr. Brohman how public speaking made her unbearably nervous. The only way for her to overcome that nervousness was to prepare, really to over-prepare, well in advance. She asked him to never again surprise her as he had done by asking her at the last minute to speak in public.

62        This incident struck Mr. Brohman, and he came to understand that unlike him or others, the grievor was incapable of just winging it. It was necessary for her to prepare a great deal ahead of time for any situation in which she would be speaking in public, despite the fact that she already knew everything there was to say. This meant that she always prepared thoroughly for any presentation — she would create binders with tabs and other materials. At the same time, she also memorized all that written material.

63        At meetings, the grievor always took copious notes, which were almost verbatim, extremely precise, and an impeccable record of decisions and interventions. They were particularly important in the context of a federal-provincial working group, composed of 25 to 30 persons. It was important to have precise notes, as the provinces were somewhat suspicious of a process led by the federal government.

64        The grievor also designed an analytical framework for the repayment metrics that all the provincial education ministers adopted. This was a major accomplishment that highlighted both the grievor’s strength in math and her ability to work with various stakeholders.

65        During the fiscal year 2005-2006, Mr. Brohman took language training. A competition was held for an acting appointment in his position. The three managers competed for the position. According to Mr. Brohman, the grievor was the natural leader of the team, yet she was unsuccessful. She told him she had frozen at the interview because she had not had sufficient time to prepare. Mr. Brohman offered to help her prepare when future opportunities arose.

66        Mr. Brohman left the government in December 2007. The grievor successfully competed for his position. He helped her prepare for other job opportunities, including the position she held at the time of her dismissal. He described how thorough her preparation was and how much she would commit to memory. Mr. Brohman said the amount of preparation bordered on “insane”; he stated that he has never met anyone else who spent so much time preparing for job interviews.

67        Mr. Brohman stated that the grievor was one of the most hard-working persons he has ever met. He was completely shocked when he heard she had been dismissed for cheating, as such behaviour is not part of her personality.

68        In cross-examination, Mr. Brohman stated that he had not helped the grievor prepare for the AB and TB processes.

69        Ms. Charbonneau worked as an executive assistant to the CSLP’s director. She worked with the grievor for 10 years. She described the grievor as extremely hard-working, very thorough, and very kind. She also described as a quirk the fact that the grievor did not like writing on coloured paper and that she was very particular about taking notes on white paper in a notebook. She mentioned that the grievor took detailed notes at meetings. She was equally incredulous when she learned the grievor had been dismissed for cheating in a staffing process.

70        Ms. Halladay reported to the grievor from August 2013 to January 2014 at PWGSC. She worked closely with the grievor. She also stated that the grievor was an extensive note taker who disliked coloured paper. According to her, the grievor was very structured and very strategic and was able to retrieve information instantaneously.

71        Ms. Knight has been with the federal public service since 2000. The grievor hired her at the CSLP, where she worked from April 2002 to December 2011. When the grievor left the CSLP, Ms. Knight replaced her in her job as director.

72        As a direct report to the grievor, she had occasion to observe her working habits. She recalled the grievor as a perfectionist, with specific requirements for details and thoroughness. The grievor had an outstanding memory. She was also a stickler for well-prepared meetings with detailed speaking notes. Once at the meeting, she would repeat the prepared text verbatim, without consulting the notes.

73        Ms. Knight also had occasion to read and transcribe the notes that the grievor took at meetings. They were extremely precise, with proper attributions to each speaker despite the fact that a great number of people attended the meetings, and they all spoke quickly. The notes were very legible, so that they were easy to transcribe.

74        Ms. Knight also expressed shock at learning that the grievor had been dismissed for cheating on a staffing process. This was not at all what she would have expected from the person she had worked closely with for 10 years.

75        Counsel for the respondent asked these witnesses (except Ms. Halladay) in cross-examination whether they had brought examples of the notes the grievor had allegedly taken in the past. The answer was always negative. Counsel for the respondent also asked the witnesses about their personal relationships with the grievor. For both Mr. Brohman and Ms. Knight, it seems their relationships with the grievor were of friendship, with some socializing outside the workplace.

2. The grievor

76        The grievor spoke of her upbringing and career in the public service. She was born in Lebanon. She started school very early, and through a series of circumstances, including her own intelligence, she skipped a number of grades, so that by age 14 she had completed grade 11. Her family emigrated at that time to escape the civil war. When she arrived in Canada, she spoke a little French and no English. Despite this, she was placed in Grade 12 after an assessment by the school authorities. She received tutoring in both French and English, and graduated from the French high school De La Salle in Ottawa, Ontario.

77        She started civil engineering studies at the University of Ottawa at the age of 16. She disliked engineering and changed to mathematics after one term. The mathematics program was not easy; the first two years were a struggle, since she had missed a large part of basic math with the rushed program in Lebanon combining three years into one. By the time she graduated, she was receiving top marks.

78        Her first degree completed, she started at the public service on contract and rapidly became an indeterminate employee. From the start, she was an engaged, model employee, excellent with numbers and plans and devoted to her work. The grievor explained how in her very first job, on a contract, she had been given two weeks to draw up a structured data document; she completed the task in three days. The manager was then convinced she should be hired on a permanent basis.

79        From the witnesses’ statements and from the grievor’s testimony, I got the impression of a determined, serious, and dedicated public servant. In 25 years, she rose from a CR-04 position to an EX-02 position with ever-increasing responsibilities; by all accounts, including the performance evaluations that were introduced at the hearing, she always excelled.

80        Despite her great success, the grievor testified to her basic insecurity, especially when she feels her command of the English language is being tested. She is sensitive to the fact that people usually detect her slight accent and often insist on knowing where she comes from. Her way of dealing with this is to prepare in depth for any situation in which she will have to speak in public, whether for an interview or a presentation, as confirmed by Mr. Brohman.

81        The grievor testified to the events of the two appointment processes.

82        The AB process was launched in September 2013. The grievor was very much interested in that job. She stated at the hearing that in fact, she had been approached some eight months before by then-Assistant Deputy Minister for Acquisitions, Tom Ring, to fill the position on an interim basis. After some exchanges between her manager and Mr. Ring, it was decided that the grievor could not take the position on an acting basis, as she was needed in her substantive position to guide a project she had developed, which was the Public Works’ Integrity Framework.

83        The grievor testified that she was very disappointed not to have the opportunity to take the acting position in the Acquisitions Branch. Mr. Ring encouraged her to apply when the job was advertised.

84        As she was very motivated to succeed and obtain the position, she started preparing as soon as she applied, in September 2013. From then until the interview in March 2014, her free time was devoted to her preparation. She gathered all the material she could find, read through it all, then started to focus by preparing her own study notes. She took the written test in December 2013 and passed it. She recounted how the exam, which was a take-home, was received on a Friday and had to be handed in the following Monday. She put in a heavy effort, hardly slept, and submitted it Sunday night. In February 2014, she was invited to the March 2014 interview.

85        The grievor testified that she put hundreds of hours into preparing both for the written exam and for the interview. A USB key (to be discussed later in this decision) shows the breadth and depth of her preparation. It contains a great deal of material, taken from government websites or presentation decks done within the department, as well as the study notes she wrote.

86        The interview for the AB process was in the same building as her office. She brought only her BlackBerry and a notepad to it. The grievor explained that she always brought her own notepad to interviews, as she knew from experience there would be insufficient paper provided for her own extensive preparation notes.

87        She was greeted by Ms. Thibodeau, who took her BlackBerry and placed it in her office and then escorted her to the preparation room. Ms. Thibodeau handed her the envelope with the questions. The grievor showed her pad to Ms. Thibodeau and asked if she could use it. Ms. Thibodeau flipped through it and handed it back and said, “Yes, absolutely.”

88        The preparation period was 35 minutes. The grievor read through the questions, underlined what she would focus on, and then started writing from memory. According to her, she can write very clear notes very quickly, as people who have worked with her have noticed. She took the whole period to write her notes.

89        Ms. Thibodeau came back, picked up the notes and the interview questions, and placed them in the envelope. They then proceeded to the interview room, where the assessment board was waiting. Ms. Thibodeau took the notes from the envelope and placed them before the grievor for the interview.

90        The grievor thought she had done very well at the interview. She was shocked to discover a few weeks later that she had not passed. She accepted the offer to have an informal discussion with one of the assessment board members to understand what had gone wrong. According to the information she received, she had made some mistakes reporting statistics on small and medium enterprises (SMEs). She was rather surprised, as she was certain she had reported the numbers correctly. Also, she had not demonstrated leadership competency, especially in terms of strategic thinking.

91        For the TB process, the grievor testified that her interest was very different. She did not want the job. Rather, it was an exercise for her to be placed in an EX-03 pool, and her manager encouraged her to apply. Her job was in the process of being reclassified to the EX-03 level, but if she were placed in an EX-03 pool, more opportunities would open for her.

92        She did not have as much time to prepare for the TB process interview, as she was extremely busy at work. She applied in October 2014 and was invited to the interview in November 2014. There was no written exam. The grievor testified that her preparation for the AB process served as a basis — she already had a good grasp of the general departmental context. She had about a week to prepare, so she focused her memorization on the SOMCs, both the knowledge and leadership competencies, as well as the Translation Bureau decks (PowerPoint presentations).

93        The TB process interview was held in a different building. She arrived for the preparation period very early, so she waited in the cafeteria before going to the designated reception area. She had her coat, purse, and briefcase, which contained summary documents and other material as well as her notepad. Ms. Joanisse met her and brought her to an office cubicle, where the grievor left her belongings. Ms. Joanisse told her she could keep her purse, so the grievor opened it to show what it contained. Ms. Joanisse escorted her to the preparation room and said she would return with the interview questions in about 10 minutes. The grievor then realized she had not taken her pad from her briefcase. She noted that there were blue pads on the table in the preparation room. Fearing there would be no other paper, she stepped out of the room and found a photocopier with white paper beside it. She took a small stack of paper and returned to the interview room.

94        Ms. Joanisse came back with the envelope containing the questions. The grievor showed her the white paper she had procured and told Ms. Joanisse she did not like writing on coloured paper. She asked if she could use the white paper from the photocopier, and Ms. Joanisse agreed. In the envelope, along with the interview questions, were about three pages of lined paper stapled to the questions. The grievor did not use them.

95        This time, the grievor hardly glanced at the questions. She chose instead to simply write all she could remember about the various SOMCs reflected in the exam – K1 through K4 and the leadership competencies. She was still writing when Ms. Joanisse came back five minutes before the end of the preparation period and was again still writing at the end of the period when Ms. Joanisse had to tell her to put her pen down.

96        Ms. Joanisse placed all the papers, i.e., the interview questions and preparation notes, in the envelope. The grievor followed her to the interview room.

97        The interview was a disaster according to the grievor. She chose to read the questions out loud (rather than have the assessment board members do so) before answering them. She was reading them for the first time in detail, and she quickly realized they were multilayered and that her notes would be of little use. She had to flip back and forth with her written material and lost track within five minutes, not knowing how to answer.

98        She found out quite quickly that she had not passed. This time, she did not ask for an informal discussion. She knew why she had failed. She left some time after that for holidays abroad during the Christmas season. When she came back on January 6, 2015, she was called to the office of the assistant deputy minister (ADM) of human resources. She learned then that she was suspected of fraud and that she was immediately being placed on leave with pay. She was escorted by security back to her office to gather her personal belongings. Her manager convinced security that an escort was not necessary for the grievor to leave the building. The manager would accompany her. The manager tried to reassure her, stating that it would all clear up within four to six weeks.

99        In fact, there were no further decisions until August. In the meantime, the investigations took place. On August 3, 2015, Mr. Da Pont wrote to the grievor, stating that following the PSC reports as well as Mr. Paquet’s fact-finding report, she was being suspended without pay as of that date. On August 21, 2015, accompanied by her lawyer, the grievor met with Tom Balfour, acting ADM for human resources, to provide comments on the four reports. On October 1, 2015, Mr. Da Pont signed a termination letter, with the effective date of termination being the date on which the suspension without pay had started.

100        The grievor testified that the period from January to October 2015 was tremendously difficult for her. Her self-esteem was completely shattered. Her work had been the centre of her life; she had placed her career ahead of everything else. For 10 months, she was unable to tell her family what had happened. She kept up the pretence that she was still working. She felt particularly bad about her parents, who had given up so much to come to Canada to give their children a better future. She had health problems, slept badly, and hardly left the house.

101        In cross-examination, counsel for the respondent sought to show that the grievor had not been a total recluse during those months, as she had pursued a course that the department had paid for, which was an excellence in management program for which she had been chosen to represent her department. The grievor acknowledged that she attended the course and that she went on two trips abroad to participate in the educational component of the course.

102        After her dismissal, the grievor received many calls from people who had heard she had been dismissed for fraud. She believes her reputation has been seriously damaged by the respondent’s allegations.

D. Preparation notes and USB key

103        The original interview preparation notes were introduced at the hearing. In the AB process, the notes are written in blue ink on lined paper. The paper is perfectly smooth. The flow of writing is continuous, with certain side remarks added in the same ink. For the TB process, the notes are written in black ink on unlined white paper. The flow of writing is continuous and gives the impression of speedwriting as it is very tight, although the letters are relatively well formed. The writing is not straight but angles upwards, presumably because there are no lines to follow. Again, the paper is perfectly smooth, with no wrinkles. In both cases, there are a number of abbreviations and signs, contributing to the impression of speedwriting.

104        The grievor explained in detail how she prepares for interviews. As a manager, she knows very well how an assessment board will evaluate a candidate based on knowledge and abilities. Interview questions are not known ahead of time. What is known are the knowledge and leadership components to be assessed. For each interview question, the interviewers will have a scoring sheet with a series of generic points that the interviewee should touch upon, giving personalized examples. The grievor has conducted several appointment processes and has been a member of a number of assessment boards.

105        At the hearing, the material that the grievor had studied to prepare for the two appointment processes was introduced by way of a USB key. On it were several levels of preparation: the material gathered for the interviews, several decks and charts related to the mandates of the department or sections, and the study notes that the grievor had drawn up and memorized for the interview.

106        The grievor testified that she had read at least once all the material she had gathered. From that material, she distilled information that she then memorized, from paper rather than from the screen.

107        The grievor’s contention is that the preparation notes were written from the memorized material that she had prepared. To describe the notes in detail, I will refer to both the preparation notes and the study material that appears on the USB key.

108        For the AB process, the questions are answered in order. At the top of the first page of the preparation notes, “Q1” appears. This first question asked the candidate to describe a major success in his or her career, to illustrate management excellence. The preparation notes under Q1 are written very tightly and are very detailed and well organized. The respondent conceded that these notes were personal and that they had not been reproduced from some website.

109        In fact, these notes, although personal, are a reproduction of a document that can be found on the USB key. The content is almost identical. To give but one example, on the USB key, under “teamwork”, the following appears in the study notes: “I am a team player, I work well horizontally.” In the preparation notes, this appears as “I’m team player work well ↔”. The question prepared in the study notes is: “Why are you best suited for this position?” The second part starts, “in terms of my leadership style” and gives several headings (“teamwork”, “engagement”, “accountability”, “risk-taking”, and “renewal”). These headings and their contents are all reproduced in the preparation notes.

110        “Q2” of the AB process reads as follows: “How does the role of the Department of PWGSC fit into the current overall priorities of the Federal Government?” The preparation notes start with “Budget 2014”, then “SFT [Speech from the throne] 2013”, “Bridges”, “GOC priorities”, and “Industrial Capabilities”, followed by “AB priorities”, “AB mandate”, “AB vision” and “priorities”. All these can be found in different study notes on the USB key. In Mr. Picard’s report, he states that her preparation notes are very similar to the Acquisition Branch’s Executive Summary (discussed earlier in this decision). They reflect even more closely the study notes that include titles not found in the Executive Summary.

111        “Q3” was a question on the federal government’s decision-making process. The respondent produced at the hearing an enlarged version of a very detailed table of the different steps of the federal law-making process, from the speech from the throne through to royal assent. In her preparation notes, the grievor summarizes the process. Her summary is remarkably detailed but incomplete. The chart is on the USB key, as well as a note in one of her study notes to study the law-making chart. In her testimony, the grievor stated that she had studied her own notes as well as charts, which she found easy to memorize.

112        “Q4” dealt with policy development and the government approval process and asked for an example of a major policy initiative the candidate had been responsible for. The preparation notes reflect the study notes found on the USB key under “Stream B K” — the knowledge requirement for the “B stream” process, as stated in the interview question.

113        “Q5” concerns the challenges for SMEs that wish to become vendors to the Government of Canada through PWGSC’s procurement process. It also asks the candidate to recount the experience of a successful engagement helping SMEs achieve an outcome with the government. In the preparation notes, the grievor lists characteristics of SMEs and then in the middle of the page writes “Me – Experiment – literacy – info”. She explained at the hearing that this was the example she intended to give, which was of her experience developing the program literacy of those who use the CSLP. The preparation notes reflect the content of a USB file entitled “OSME” that also includes the example of the CSLP literacy experiment.

114        “Q6” concerned the legislation and principles applicable to procurement and contracts with the federal government. The preparation notes reflect a document found on the USB key entitled “K3”. Following the notes on Q6 are notes on Blueprint 2020 and the Client Service Strategy, which the grievor considered important policies for the AB. Again, those notes reflect documents found on the USB key.

115        The TB process preparation notes were not ordered according to the questions but according to the knowledge criteria and leadership competencies in the SOMC. They also include the Translation Bureau Transformation Agenda in detail. The preparation notes for the SOMC closely track the study notes on the USB key. The TB Transformation Agenda is found on a PowerPoint deck that the grievor said she also studied.

116        Most of the documents appearing on the USB key that are reflected in the preparation notes were prepared by the grievor before the interview dates. The exception to that are some charts and the TB Transformation Agenda. Those documents are not distilled notes that she produced but are the original government-sourced documents.

117        The USB key is a compilation of documents taken from the grievor’s computer at work after she had been suspended. She no longer had direct access to her computer, so the USB key was compiled by IT services following her directions given over the phone. According to her, the documents are not necessarily the last versions. She had also prepared binders, but they were not found in her office.

III. Summary of the arguments

A. For the respondent

118        The issue, according to the respondent, is whether it is more likely than not that the grievor used unauthorized material in either the AB or the TB process or both. It is well established that cheating on a staffing process constitutes serious misconduct that deserves serious discipline.

119        The standard of proof is the balance of probabilities. The fact that the evidence is circumstantial does not undermine its probative value. The weight of such evidence depends on the addition of many circumstances. The respondent stressed the number of pages of notes the grievor wrote during her interview preparation, the exactness and thoroughness of these notes, and their great similarity to both government publications and her study notes.

120        The respondent also pointed to the fact the grievor had not used the paper provided for the preparation notes. In the AB process, she arrived with her paper pad in hand. Her answers fit neatly on separate pages. She had a separate page on Blueprint 2020, not a topic directly addressed by one of the questions. Her preparation notes were very different from all the other candidates’ in terms of quality, quantity, and thoroughness, in addition to being on different paper.

121        For the TB process, the grievor had little time to prepare, yet she had memorized a great deal. Again, the preparation notes were thorough and detailed. However, the respondent noted that a considerable amount of information in the study notes was not reproduced in the preparation notes. Some of the preparation notes did not correspond to the grievor’s study notes, yet she stated that she had memorized her study notes, distilled from various government sources.

122         The respondent argued that I should disregard the evidence provided by the persons who had worked with the grievor, as they could be considered friends, which cast some doubt on the validity of their testimony. Some had testified to the quality, detail, and thoroughness of the notes taken by the grievor in meetings, yet these notes were never produced.

B. For the grievor

123        According to the grievor, the respondent failed to show on a balance of probabilities that cheating occurred in either process. The evidence is entirely circumstantial, and it can be explained. Essentially, the respondent’s case is that it is impossible to write such detailed notes in the little time afforded for preparing for the interview. However, no expert evidence was presented to support that allegation. The respondent presented no evidence whatsoever to contradict the grievor’s straightforward recollection of events.

124        When circumstantial evidence is used to establish fraud, the evidence must be very clear. The grievor cited the “Rule in Hodge’s Case”, according to which if the only evidence is circumstantial, then the misconduct inferred must be the only rational explanation, leaving no other rational inference that would support finding the person not guilty. The grievor also cited arbitration cases in which merely suspicious circumstances were not sufficient to establish the misconduct (McIntosh-Smith v. House of Commons, PSSRB File No. 466-H-150 (19910415), [1991] C.P.S.S.R.B. No. 76 (QL); and Canada Post Corp. v. CUPW (2015), 251 L.A.C. (4^th) 170).

125        When the evidence is carefully scrutinized, it is obvious that the respondent has not established clear, cogent, and convincing evidence of wrongdoing. The evidence it presented, especially Mr. Picard’s in-depth report, is insufficient to establish cheating. Rather, the evidence shows that it is implausible that the preparation notes would have been copied in advance. The notes are more consistent with memorization than with straight copying, given the alterations in them when compared to the source material.

126        The witnesses who testified on the grievor’s behalf emphasized her capacity to memorize a lot of information, as well as her ability to write complete and accurate notes at meetings. The respondent’s evidence also disregards the significant preparation that she testified to, which would be inconsistent with sneaking in the study notes. The respondent never explained how she could have brought in notes, given their pristine state and the absence of a bag to bring them in.

IV. Analysis

127        The parties agreed that the decision I have to render is essentially factual. The law is clear: the respondent must establish that, on a balance of probabilities, it had cause to dismiss the grievor because of misconduct. The grievor conceded that if misconduct were established, then the sanction, dismissal, would be warranted.

128        So the entire case rests on whether or not there was misconduct. The parties also agreed that the respondent’s evidence was circumstantial. There is no hard evidence that the grievor cheated.

129        The respondent presented an extract of Grosky et al., Evidence and Procedure in Canadian Arbitration (1994), on circumstantial evidence. It states that since circumstantial evidence depends on inferences drawn from surrounding evidence, it has an inherent weakness. However, the passage continues with the following (at page 13-5):

While this may be true as an abstract proposition, in practice the cogency of either direct or circumstantial evidence is dependent upon its source and its particular relation to the issues in a case. Circumstantial evidence can lead to as thorough a sense of surety as does direct evidence. Indeed, circumstantial evidence can sometimes be more convincing than direct evidence. The convincing power of circumstantial evidence usually lies in the weight of many circumstances added together. The combination of evidence is what makes it effective. It is thus useful to explain to the board how all the pieces will fit together and even more useful to ensure that the pieces do, in fact, fit together.

130        For the purposes of this decision, I will keep in mind the idea “... that the pieces do, in fact, fit together.” A good part of the respondent’s case rested on the implausibility of the preparation notes; however, as will be seen later, there was also implausibility in the respondent’s never-detailed hypothesis of the use of “unauthorized material”.

131        The grievor argued the rule in Hodge’s Case, quoting a passage from Brown and Beatty, Canadian Labour Arbitration, at 3:5130, which reads in part as follows:

This rule provides that, if the only evidence proffered is circumstantial, such evidence will not be proof of the fact to be established unless the evidence points conclusively to the inferences drawn and they are not capable of supporting any other rational inference which would exclude culpability.

132         In reply, the respondent presented another extract from Evidence and Procedure in Canadian Arbitration, from page 13-6, which states that the rule in Hodge’s Case is inapplicable in a civil case, where the standard of proof is the balance of probabilities, not proof beyond a reasonable doubt.

133        The rule in Hodge’s Case has been dismissed by some as not relevant to labour arbitration, as Brown and Beatty also acknowledge. This may be due to the fact that it has become largely misunderstood by the courts and commentators as an extension of the burden of proof in criminal law of finding someone guilty beyond a reasonable doubt. As Benjamin L. Berger shows in a very enlightening article on the subject, “The Rule in Hodge’s Case: Rumours of its Death are Greatly Exaggerated”, (2005) Canadian Bar Review, Vol. 84, at 47-74, the original purpose of the rule was to alert jurors to the particular dangers of circumstantial evidence.

134        While direct evidence must be weighed for its credibility, circumstantial evidence requires two steps: determining whether the facts are true, and drawing an inference from these facts. The original case (as quoted in Berger at page 51, from Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136) points to the dangers of inferential thinking in the following terms:

… the proneness of the human mind to look for – and often slightly to distort the facts in order to establish such a proposition [guilt] – forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt.

135        With due regard to the appropriate burden of proof, I believe that the rule’s underlying caution can be usefully applied in the present case, since the dismissal at issue was entirely based on inferential reasoning.

136        The parties agreed that the standard of proof is the balance of probabilities, as confirmed in F.H. v. McDougall, 2008 SCC 53. As the Supreme Court of Canada writes at paragraph 49: “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”. The Court states the test at paragraph 46 as follows: “... evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.” In this case, the onus was on the respondent to show that the evidence was “clear, convincing and cogent” that fraud occurred in one or both staffing processes.

137        The letter of termination was based on the four reports produced by a private investigator, an employee of the respondent, and the PSC. The major defect of all four reports is the violation of a basic principle of administrative law: audi alteram partem, “listen to the other side”. Although the reports mention the explanations that the grievor provided for her conduct, none of them considers these explanations seriously. They set aside any evidence that would corroborate her version to focus on what is expected of candidates in the course of interview preparation and do not once envisage that it is possible to memorize a great deal of information, that writing speed is greatly enhanced by the use of abbreviations and signs, and that some people indeed write faster than others.

138        Before embarking on the analysis of whether the respondent met the burden of providing clear, convincing, and cogent evidence, I will mention two incidental matters that are not determinative but are nonetheless significant. Both relate to comments respondent counsel made in his closing arguments.

139        One comment reflects the respondent’s apparent inability to see the grievor’s point of view. One of the themes that the grievor had prepared in her study notes was management style, which she had entitled “My management style”. She reproduced those notes almost word-for-word in the course of preparing Q1 in the AB process. Counsel asked the following rhetorical question: “Who does that, prepare ahead to answer a question on one’s own management style? Doesn’t she know what her style is?”

140        Who does that? It seems to me that the grievor’s testimony provided the answer: the daughter of immigrants, the gifted child who had to struggle to learn two new languages in adolescence, forever made insecure by the treachery of English pronunciation. How does one deal with the fear of humiliation? Practice what has to be said so much that the speech becomes second nature. This was certainly a big part of her testimony, which Mr. Brohman corroborated in his testimony.

141        The other comment concerns the weight to be given to the testimony of those who testified for the grievor, especially Ms. Knight and Mr. Brohman. They have in-depth knowledge of the grievor’s work habits and professional traits. I am willing to concede to the respondent that they are also her friends.

142        I do not think friendship per se disqualifies a witness. Both Mr. Brohman and Ms. Knight met the grievor in a work setting, and if friendship developed over the years, it was, according to their testimony, at least partly based on the respect they had for her. The grievor worked in the public service for 25 years. If there was any evidence to contradict the sworn testimony of Ms. Knight and Mr. Brohman, I did not hear it. No one contradicted the evidence of the thoroughness of her preparation for any task she took on. 

143        The reports that served as a basis for her dismissal were authored by persons who did not know the grievor, which is entirely proper. However, they chose not to interview any witness who knew her in her work environment. It cannot be held against the grievor that she called those witnesses before the Board.

144        The evidence in this case is circumstantial. No one saw the grievor write the preparation notes. Therefore, it is a matter of determining which explanation is more probable: the respondent’s, which is that the grievor made use of unauthorized material, since no one can write so much accurate material in so little time, or the grievor’s, which is that the notes were entirely written from memory in the time allotted for preparing the interview. On a balance of probabilities, I find the grievor’s explanation more plausible than the respondent’s.

145        The rule in Faryna v. Chorny, [1952] 2 D.L.R. 354, is usually invoked when two oral testimonies are contradictory. It can also be applied to choose between two versions of the same events, as in this case. As stated at page 357 of that case:

… The test must reasonably subject his [the witness’s] story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

146        The only hard evidence I have is the preparation notes. There are a number of deficiencies in the explanation that the respondent had for them. It never asserted that the grievor brought notes into the preparation room. The letter of termination refers to “unauthorized material”, as does Mr. Paquet’s report. The PSC reports state that it is not necessary to explain how the unauthorized material could have been brought in. It is sufficient to show that the notes reproduce large parts of various government websites. When pressed as to his theory on how the notes might have been brought in, given their pristine state and the fact that the grievor did not have a bag in which to bring them in, M. Picard refused to hypothesize.

147        This is the first failure in the respondent’s evidence — how could the notes suddenly appear when the grievor had no bag to hold them? Smuggled on her person, they would have been at least a bit wrinkled. They are not at all wrinkled.

148        Secondly, the content of the notes shows a correspondence to the interview questions for the AB process. This too remains unexplained by the respondent. The reports all emphasized that the notes corresponded to the SOMCs, as opposed to the questions. Another way of viewing the SOMCs is to consider that they announce the different knowledge and competency skills that will be assessed. If the grievor memorized them to be able to answer the questions that would test her knowledge and abilities against the SOMCs, then of course, there would be a correspondence. That does not explain why the notes were in the same order as the questions on the exam in the AB process.

149        Thirdly, the two sets of notes are very different from each other, but each is written very uniformly. One is on blue-lined white paper, in blue ink. The other is on unlined white paper, in black ink. If the grievor prepared them ahead of time, one would expect that they would be more similar. One would also expect that being as meticulous and thorough as she is, she would not have chosen to write on unlined paper so that the notes came out rather crooked, slanting upwards.

150        Ms. Thibodeau (administrative assistant in the AB process) testified that she would have initialed the paper pad had the grievor proffered it to her. However, I found her testimony a little difficult to follow. She stated that she printed paper with lines and the word “Notes” at the top and that the candidates were expected to use that paper. Yet, when she came to collect the grievor’s notes and direct the grievor to the interview room, she was apparently not struck by the blue-lined paper, clearly from a paper pad. She did not alert the assessment board immediately that the notes were not as they should have been. When asked in cross-examination if she had noticed anything strange about the notes, Ms. Thibodeau simply said, “No.” It seems to me more sensible to believe the grievor’s version, which is that she showed the pad to Ms. Thibodeau and that Ms. Thibodeau approved it (and forgot to initial it).

151        Ms. Joanisse stated that for the TB process, she remembered the grievor showing her that she had taken a stack of paper “from somewhere over there”, waving her hand in the direction of the door. Again, at the end of the preparation period, Ms. Joanisse found nothing surprising about the notes on the unlined paper, and she said nothing to the assessment board about the grievor not using the printed notepaper in the envelope or the blue pads on the table. Ms. Baron, the assessment board member who took out the notes from the envelope to hand them back to the grievor at the start of the interview, also did not note anything amiss at that time. I find the grievor’s version, which is that she stepped out and took paper from a nearby photocopier, entirely believable. I have difficulty imagining that in the pile of paper beside a photocopier, in a building the grievor was unfamiliar with, were pre-written notes, to which she would have added (since she did write, as witnessed by Ms. Joanisse), in a continuous flow (albeit slanted) of handwriting.

152        In both processes, I find that the grievor convincingly explained the origin of the paper. There remains then the contents of the notes.

153        One of the comments that was made in the PSC reports, and that counsel for the respondent sought to bring out in cross-examination, is that the preparation notes seem often closer to websites than to the study notes the grievor prepared and that she maintains were the basis of her memorization. I have considered closely the USB key that was introduced as evidence and presented earlier my factual findings on the correspondence between the preparation notes, the study notes, and other documents found on the USB key. I also take note of the grievor’s explanation, which was that not all her material was recovered on the USB key. Two binders of notes and materials were never found. She did not have access to her personal drive after her suspension in January 2015, and according to her, some documents were not the latest versions.

154        The preparation notes can largely be traced to the considerable material that the grievor had prepared and that appears on the USB key. As also brought up by respondent counsel, the reports emphasize that there is no perfect correspondence between the study notes and the preparation notes. It seems to me highly probable that the grievor simply combined several segments of memorization, all traceable to the USB key, and that she wrote them down. It would certainly better explain her writing speed than having access to a large number of websites and copying the material from them or prearranging the material to fit the questions.

155        The reports also stressed that the grievor seemed to provide the contents of the SOMCs rather than answer the interview questions and this was found to be evidence of cheating. It can just as well be evidence of a major exercise of memorization. Obviously, the grievor could not have memorized the answers to the questions. What she could have memorized was the content of the SOMCs, announced on the advertisements for the positions.

156        Among the unusual features of her preparation notes were the detailed reproductions of charts. Some were reproduced with boxes and circles, while others were just information. The horizontal legislative process chart was presented vertically in the preparation notes; conversely, the TB transformation points were presented horizontally, while appearing vertically in the TB PowerPoint deck. The grievor testified that she studied a number of these charts directly — numbers and charts go with her mathematical mind. Again, from her career path and from the testimonies of different witnesses, it seems highly plausible that charted information is particularly easy for her to memorize. The fact that some were altered (from vertical to horizontal or vice-versa) can be taken it seems to me as an indication of memorization as opposed to straight copying.

157        Mr. Picard’s report attempts to show that some notes were written sideways and seemed added, which was evidence of material added to notes already written. I find that unconvincing. In the midst of scribbling all the things she had memorized, it is entirely conceivable that the grievor would have had some additional flashes of information that she added, sideways sometimes if space had already been used up. The ink and the handwriting are the same.

158        One point that the respondent did not address was the grievor’s apparently self-defeating technique. If indeed she had brought in her study notes to prepare for the interviews, it seems to me she would have had time to better plan the answers to the questions. The evidence from the notes of the interviewers is that she did not entirely answer the questions. The reason, it seems to me, is that she was so busy writing down what she had learned by heart that she did not take the time to truly consider the questions. Her behaviour at the interviews supports much more the hypothesis of someone preparing by concentrating on simply writing, rather than someone taking the time to think of the questions, aided by the notes she has smuggled in.

159        In the end, it is the physical aspect of the preparation notes that I find most convincing – the continuous flow of writing, with many abbreviations, the hurried style, the complete homogeneity of the notes. Having looked at them (I stress again the unwrinkled paper), and having heard how the grievor prepared for her interviews, I find it entirely plausible that she walked into the preparation rooms and simply wrote down everything she had memorized. In one case, she brought a pad, and in the other, she forgot to take the one she had brought from her briefcase. The notes follow the sequence of the interview questions in the case of the AB process, with added items that she considered important (such as Blueprint 2020). For the TB process, the grievor testified that she simply dumped what she had memorized for K1, K2, LC, etc. She hardly looked at the questions, preferring to have all the memorized information available in writing. This was not a winning strategy, as she was the first to admit.

160        To make a decision, I need to compare two explanations. The respondent’s is based on the impossibility of memorizing so much information and writing it down so fast. The use of unauthorized material is alleged, without identifying the material or specifying how it was introduced.

161        The grievor’s explanation covers everything, if one accepts that she proceeds unusually and is capable of both memorizing vast quantities of material and writing very quickly. As to her unusual approach, I cannot see that as an indication of fraud. I accept the testimonies of Mr. Brohman, Ms. Knight, and Ms. Halladay that the grievor is a detail-oriented and highly organized worker for whom being well prepared is absolutely essential. The notes were unusual, but then again, so was her preparation, as shown by the USB key and her testimony as well as that of other witnesses on the extent of her memorization.

162        In closing argument, the grievor’s counsel mentioned an article about mnemonics. Respondent counsel objected to this late introduction of evidence. I agree with respondent counsel that no evidence was led during the hearing on memorization as a technical, expert subject. My decision is unaffected by a journalist’s apparently successful attempt to memorize a shuffled deck of cards (actually, two) in five minutes.

163        However, I think it is common knowledge that some concert pianists will play, for hours on end, sometimes very quickly, two separate lines of a series of notes that may be altered by sharps and flats, without ever glancing at a score sheet. No one questions their ability, which far surpasses what an amateur musician could do. I believe that beyond talent, such tremendous skill is backed by hours and hours of practice. The idea is not new — it was first raised by the grievor’s first counsel in response to the respondent’s investigations. I admit the link between a Rachmaninoff concerto and the turgid prose of government websites might not be obvious, but the basic principle is the same. With practice and concentration, one can absorb a great deal of information, especially if it follows a familiar pattern. Hand speed can be developed. None of the reports ever seriously considered that possibility. Yet several witnesses who had worked with the grievor confirmed that she wrote unusually detailed, clear, and complete notes at meetings.

164        I am left with two competing versions of events. The respondent’s version includes “unauthorized material”, which implies fraud and justifies the dismissal. The problem in the respondent’s thesis is that there is no explanation whatsoever as to how or when this unauthorized material would have appeared; nor was its content ever specified.

165        The other version is the grievor’s, which explains every detail of the events and only requires accepting that it is possible to memorize a great deal of information and to write fast. I accept that possibility. The evidence from the grievor and other witnesses confirmed that the grievor was able to do both.

166        Between the two versions, I find the grievor’s more credible, on the basis of Faryna. Considering all the evidence, oral, written, and physical, I find that the respondent has not presented clear, convincing, and cogent evidence that fraud occurred in the two staffing processes.

V. Remedy

167        The grievor has asked to be reinstated in the position she was in when she was suspended in January 2015. This position has since been reclassified to the EX-03 level. Counsel for the respondent argued that if I found for the grievor and ordered reinstatement, it should be at the EX-02 level, the level she was at when she was suspended in January 2015.

168        The grievor is entitled to the position she was in when she was dismissed without cause. The evidence from her, which was not contradicted by any evidence from the respondent, was that her position was in the process of being reclassified while she was still at work and that she had in fact worked with the classification officer on the new job description.

169        Given the above, the grievor is entitled to her job at the reclassified level, at the effective date of reclassification. There is no evidence before me that would lead to a finding that had she remained at work, she would not have kept her reclassified position. Her manager had insisted that she remain in her job rather than accept the offer for an acting EX-03 position. However, she had encouraged the grievor to participate in the TB process to be placed in an EX-03 pool. Had her career not been interrupted, considering her trajectory and the uncontradicted evidence presented at the hearing concerning the reclassification of her position, I have no doubt she would today be at the EX-03 level.

170        The grievor is entitled not only to her salary but also to the performance bonuses she would have received (based on experience) as well as interest at the Canada Savings Bond rate on all sums due, with any income earned since her termination deducted from the amount payable.

171        The grievor has asked for moral damages, for the harm suffered throughout this ordeal. She also asked for damages for harm to her reputation. I was presented with Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70, and Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83, as examples of cases in which the former Board (the Public Service Labour Relations Board) granted damages for the employer’s wrongful conduct.

172         In Robitaille, the grievor had been the subject of a harassment complaint, which led to a reassignment to another workplace, with fewer responsibilities. The adjudicator found that there were no grounds for the harassment complaint and that the grievor had been relentlessly mistreated by the employer, which had carried out an unfair investigation tainted with many procedural and substantive defects. The adjudicator awarded compensatory and punitive damages, and the damages were upheld at judicial review (Canada (Attorney General) v. Robitaille, 2011 FC 1218). 

173        In Tipple, the grievor was dismissed after a series of articles appeared in the media that falsely denounced misconduct. The employer prevented Mr. Tipple from defending his reputation in the media, causing him psychological distress, loss of reputation, and loss of income following the termination. The adjudicator awarded damages for loss of reputation and psychological injury.

174        In this case, the grievor was first suspended with pay, pending the investigation. Only after the respondent thought it had evidence of wrongdoing was she suspended without pay. She was terminated two months later, with the termination backdated to the start of the suspension without pay.

175        I have already found that the respondent did not have sufficient evidence to dismiss the grievor. However, I do not find that the respondent acted in bad faith. It based its decision on the findings of four investigations, and for most of that time, the grievor received her salary. I do not wish to minimize the distress that the situation caused her, but this distress resulted from the investigation and the termination, not from how they were carried out. I do not see in this case the dogged persecution that was found in Robitaille or the very public defamation that occurred in Tipple. I believe that her reinstatement to an EX-03 position makes her whole.

176        Because of her managerial position, the grievor was not represented by a bargaining agent. She had to retain a lawyer to defend her difficult and complex case. In Robitaille, the adjudicator attempted to circumvent the Board’s lack of jurisdiction to order costs by having the losses incurred by Mr. Robitaille to pay his legal fees repaid by the employer. The Federal Court found this to be an error (2011 FC 1218). The Supreme Court of Canada’s decision in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, further confirmed that in the absence of specific language in its enabling legislation, an administrative tribunal cannot order costs. In this particular case, I find this most unfortunate, but I am bound by legislation and case law. I cannot order costs, and I cannot order damages to cover costs.

177        For all of the above reasons, the Board makes the following order:

VI. Order

178        The termination grievance is allowed.

179        The grievor is reinstated in her position from the date of termination, with full salary and benefits, at the EX-03 level. Salary is to be paid at the EX-03 level from the effective date of reclassification.

180        The grievor is to be paid the performance bonuses she would have earned, based on experience.

181        Interest is to be added at the Canada Savings Bonds rate to the salary and performance bonuses. Any income earned since August 3, 2015, is to be deducted from the amount payable.

182        I remain seized for 90 days from the date of this decision with respect to any issue arising from the implementation of this order.

January 31, 2017.