FPSLREB Decisions

Files: 166-2-27522 & 27678 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN GEORGE GREGORY KULLMANN Grievor and TREASURY BOARD (Citizenship and Immigration Canada)

Employer

Before: P. Chodos, Vice-Chairperson For the Grievor: No one For the Employer: Robert Jaworski, Counsel Heard at Toronto, Ontario, March 24, 1999.

Decision Page 1 DECISION The grievor had been employed for sixteen years as an Immigration Officer prior to his indefinite suspension and subsequent discharge for misconduct effective October 31, 1996. At that time Mr. Kullmann was working as a Senior Immigration Examining Officer (PM-2) at Toronto International Airport. Mr. Kullmann has grieved and referred to adjudication both his indefinite suspension and discharge. However, for reasons which are noted below, Mr. Kullmann chose not to participate in these proceedings, notwithstanding that he was advised by the Board that this hearing would proceed as scheduled on March 24th.

By letter dated January 17, 1996 from Mr. R. Mantzel the then Acting Director, Ontario Region, Citizenship and Immigration Canada, Mr. Kullmann was advised that he was indefinitely suspended without pay pending “an administrative investigation to determine if you have been involved in any wrongdoing with respect to allegations of your involvement in persons entering Canada unlawfully.” (Exhibit E-2). On October 25, 1996, Mr. Kullmann was informed by Mr. Mantzel that the departmental investigation had determined “that you were involved in activities related to the unlawful entry of persons into Canada for personal financial gain; that you conspired to reveal personal information on clients of the department to third parties without authorization; and, that you consipired (sic) to accord preferential treatment to a third party by agreeing to facilitate the Immigration process for the third party’s associates.” On the basis of these allegations Mr. Kullmann’s employment with the Department was terminated. His grievances concerning both the suspension and discharge were referred to adjudication by January 17, 1997. The Public Service Alliance of Canada requested on behalf of the grievor that the references to adjudication be held in abeyance pending the outcome of Mr. Kullmann’s criminal trial, which would be dealing with essentially the same matters as adjudication hearing . By letter dated October 1, 1998 the Board advised that it would hold Mr. Kullmann’s references to adjudication in abeyance pending the completion of the criminal trial.

On November 2, 1998 the employer advised the Board that the criminal trial of Mr. Kullmann and a fellow employee, Mr. Aldo Chang, was concluded on October 9, 1998. As a consequence, the employer requested that these cases be scheduled by the Board for a hearing as soon as possible. The Public Service Alliance of Canada responded that the grievor wished to have his adjudication hearing held in abeyance for a further unspecified period until the completion of the appeal of his criminal Public Service Staff Relations Board

Decision Page 2 conviction. The employer, through its counsel, Mr. Jaworski, opposed any further delay in the scheduling of the hearing of this matter; in addition, counsel submitted that the grievances of Mr. Kullmann and Mr. Chang should be heard together. The bargaining agent continued to maintain that adjudication hearing for Mr. Kullmann should be postponed pending the outcome of his appeal; the Public Service Alliance objected to the joinder of Mr. Kullmann’s hearing with that of Mr. Chang.

The Board advised the parties that it would be hearing the Kullmann and Chang cases separately, and that the Kullmann case would proceed on March 24, 1999. By letter dated February 22, 1999, the Board was advised by the Public Service Alliance of Canada that it was withdrawing from participation in this case. Mr. Kullmann was informed by the Board by letter of February 23, 1999 that, notwithstanding the Alliance’s withdrawal of support, he was entitled to participate in the hearing of his grievance on March 24, 1999. Mr. Kullmann was again advised by the Board by letter dated March 12, 1999 that his grievance would be heard on March 24.

By letter dated March 12, 1999, Mr. Kullmann advised the Board as follows: This is to advise you that I will be unable to attend the afore-mentioned hearing scheduled to be held on March 24 to 26, 1999 for the following reasons:

a) In his letter dated 29 January 1999, Mr. Philippe Trottier, A/Grievance and Adjudication Officer with the Public Service Alliance of Canada had requested that the adjudication hearing of my grievances be held in abeyance pending the outcome of the appeal of my conviction. The PSSRB chose, however, to turn down PSAC’s request on the ground that this matter has already been postponed and further postponements lead to a system of delay rather than justice being served. Following the PSSRB’s communication to PSAC of its decision to refuse the afore-mentioned request, PSAC withdrew its support from this case. In PSAC’s opinion, “this case is not achievable” given my criminal conviction. It is evident that the most important factor on which this whole case hinges is the criminal conviction. The final disposition of the appeal of the criminal conviction is therefore of extreme significance, indeed, of great paramountcy to the outcome of the adjudication hearing. By proceeding with the case without awaiting the decision of the higher court, as requested, the adjudication process of this case loses its fairness and impartiality: thus also its

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Decision Page 3 raison d’être. How can justice be rendered when it is not allowed to run its full course?

b) As a result of PSAC’s withdrawal of its support of my case, I have remained with no legal counsel or representation. Due to my suspension without pay and eventual dismissal from employment, I have been deprived by Citizenship and Immigration Canada of any income which would have enabled me to defray the cost of retaining independent legal counsel to represent me at the hearing, in lieu of PSAC. Consequently, I have no legal representation for the adjudication hearing.

Due to the foregoing, I will not be attending the hearing as scheduled. I wish to emphasize, however, that I am not/not withdrawing my grievances against the employer. My absence from the hearing must not be construed as an abandonment in any way of dismissal grievances 166-2-27522 and 166-2-27678.

Should you choose to proceed at this time with the final disposition of the above grievances, it will be done on your own terms, with neither my approval nor my consent.

In reply to Mr. Kullmann’s letter, counsel for the employer submitted that the Board should issue its decision summarily without a hearing. On March 18, 1999 both parties were again advised by the Board that the hearing would proceed as scheduled on March 24, 1999. The hearing took place on that date; Mr. Kullmann was not in attendance.

At the hearing Mr. Reinhard Mantzel testified on behalf of the employer. He had been the Acting Director General for Citizenship and Immigration, Ontario Region when he was informed that the R.C.M.P. were conducting an investigation the involvement of Messrs. Chang and Kullmann, among others, with respect to the smuggling of persons into Canada. As a result of this information, the Department initiated a review to determine if there was any malfeasance on the part of these employees. In view of the seriousness of the charges, which involved the aiding and abetting of the illegal admission of persons into Canada for personal gain, Mr. Kullmann was suspended without pay pending completion of this investigation. An investigation committee was struck and prepared a report (Exhibit E-3). Mr. Mantzel noted that the report includes documentation identifying Mr. Kullmann as having been on duty when two female persons were seeking entry into Canada. Transcripts of intercepted telephone calls indicate that before processing these cases

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Decision Page 4 Mr. Kullmann alerted Mr. Aldo Chang, who in turn contacted certain third parties who had an interest in having these individuals stay in Canada (see Exhibit E-4, page 106). Mr. Mantzel noted that, as the examining officer on duty, it was Mr. Kullmann’s responsibility to decide whether there should be admission into Canada of the individuals in question; there was no reason for Mr. Kullmann to seek direction from outsiders when making this decision.

The Investigative Committee and departmental management concluded, on the basis of the telephone transcripts and other documentation gathered by the Committee, that Mr. Kullmann and Mr. Chang were facilitating the entry into Canada of persons who would otherwise be considered inadmissible. It was concluded that Mr. Kullmann had contravened various provisions of the departmental Code of Conduct and the Immigration Act, in that he used his position to facilitate the improper entry of persons into Canada for financial gain. Mr. Mantzel observed that this goes to the core of his duties which rests on his integrity in making decisions respecting entry into Canada, including preventing entry of persons who are considered undesirable. A considerable amount of judgment is required in making these decisions, often without close supervision. Mr. Mantzel also observed that notwithstanding his sixteen years of service, the nature of his misconduct made it very difficult to keep him in the employ of the Department; he also noted that Mr. Kullmann had never expressed any remorse, and that the misconduct involved planning and premeditation over an extended period of time.

Counsel for the employer also submitted into evidence a copy of a judgment of Madam Justice Molloy of the Ontario Court of Justice (General Division) dated October 9, 1998 (Exhibit E-1).

In argument, counsel for the employer submitted that the judgment of Madam Justice Molloy is prima facie proof that there has been work-related criminal activity on the part of Mr. Kullmann. In accordance with the Ontario Court of Appeal decision in Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1, in the absence of evidence to the contrary, the conviction is prima facie proof of evidence of guilt in these proceedings. Mr. Jaworski argued that the very nature of Mr. Kullmann’s job puts considerable emphasis on his honesty and integrity and, accordingly, termination is the only possible response in the face of such serious and criminal breaches of trust.

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Decision Page 5 He noted that there is no evidence of any mitigating factors or of remorse on the part of the grievor.

In support of his submission Mr. Jaworski also cited the following decisions: Demeter v. British Pacific Life Insurance Co. and two other actions (1983), 43 O.R. (2d) 33;

K. (L.M.) v. Ontario (Ministry of Community & Social Services), (unreported judgment of Morin, J., Ontario Court of Justice (General Division), February 28, 1996);

Venneri v. Bascom (1996), 28 O.R. (3d) 281; Ontario v. Gray, (unreported judgment of Jennings, J., Ontario Court of Justice (General Division), May 29, 1996);

Ontario (Minister of Community and Social Services) v. Ontario Crown Employees Grievance Settlement Board et al. (1997), 32 O.R. (3d) 572;

Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. (T.D.) 493; McIsaac and Treasury Board (Revenue Canada – Customs and Excise) Board file 166-2-20610;

Beirnes and Treasury Board (Employment and Immigration) Board file 166-2-21914; Moore Board file 166-2-23658; Walcott Board file 166-2-25590. Reasons for Decision It would be appropriate to make some observations concerning the grievor’s decision not to participate in these proceedings. The Board is often required to make determinations concerning the scheduling of cases in the face of requests for postponements by one party where the other party opposes such a request. In these instances the Board must carefully weigh fundamental issues of fairness, as well as its obligation to provide a dispute resolution process that is relatively expeditious and cost-effective. In making these kinds of judgments the Board must be fair to both

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Decision Page 6 sides. In this instance the Board had already agreed to a lengthy delay in hearing the grievance until the trial was completed. In the Board’s view it would not be fair to the employer to wait for another potentially lengthy postponement of uncertain duration while the appeal is pursued, keeping in mind that the employer had advised the grievor back in October 1996 that his employment was terminated.

When faced with a request for an adjournment because of pending criminal proceeding one arbitrator made the following determination in Re Nova Scotia Liquor Commission and N.S.G.E.U. (1997), 63 L.A.C. (4th) at p. 439: Also to be weighed in the balance here are the concerns of the Employer. Both employers and employees have a right to expect expeditious decision-making from the arbitration process. While this principle is often honoured in the breach in practice, it is nevertheless valid. Moreover, the Employer in this case seems to have been patient. Its forbearance in agreeing to an adjournment in March of 1996 cannot be turned by the Union into a right to an adjournment until a criminal proceeding reaches its end, whatever the vagaries of the criminal court dockets and the schedules and procedural manoeuverings of police, Crown attorneys and defence counsel. The Employer is entitled to finality in this proceeding, and to be able to present its case before the recollections of witnesses are entirely tarnished by the passage of time.

In the same arbitral award (at p. 436) reference is made to the following observation by Arbitrator P.J. Brunner in Re McMaster University and S.E.I.U., Loc. 532 (1993), 33 L.A.C. (4th) 33:

(at pp.34-35) At the conclusion of the argument, I dismissed the motion for the adjournment. It was my view that there were no circumstances present which would tend to suggest that the employee would not be accorded full procedural fairness or that he would somehow be denied natural justice if the hearing of the grievance proceeded forthwith. The evidence indicates that it cannot be said with certainty when the criminal charges will be heard and the University has a legitimate interest in having the matter dealt with expeditiously. There was no suggestion that his rights at the criminal trial would somehow be prejudiced by anything that transpired at these hearings given the provisions of s. 13 of the Canadian Charter of Rights and Freedoms and s. 5 of the Canada Evidence Act. Balancing the interests of both the

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Decision Page 7 Employer and the discharged employee, it was my opinion that there were no circumstances which warranted an adjournment.

Mr. Kullmann’s dismissal followed upon a determination by a departmental investigative committee that he was “involved in activities related to the unlawful entry of persons into Canada for personal financial gains.” (Exhibit E-6) Essentially the same matter resulted in the laying of criminal charges against Mr. Kullmann, among others. The relevant part of that charge reads as follows: 2. AND FURTHER THAT they, the said ALDO CHANG and GEORGE KULLMAN, between the 1 st day of June, 1995 and the 12 day of January, 1996, at the Municipality of Metropolitan Toronto, at the City of Mississauga and elsewhere in the Province of Ontario, unlawfully did conspire and agree with MING SUN CHIU, TIM-SING (EDDY) CHAN and ALBERT T. CHU, the one with the other or others of them, and with a person or persons unknown, to commit the indictable offence of knowingly organizing, inducing, aiding or abeting (sic) the coming into Canada of persons who were not in possession of a valid and subsisting visa, passport or travel document as required by the Immigration Act or its regulations, contrary to Section 94.1 of the Immigration Act, and did thereby commit an offence contrary to Section 423(1)(d) of the Criminal Code of Canada.

In her reasons for judgment in respect of the above-noted charges, Madam Justice Molloy reviewed in detail the evidence against the two co-accused, in particular the hundreds of pages of transcripts of intercepted telephone conversations between various parties, including the grievor. At page 14 Madam Justice Molloy outlines the part of the indictment that relates both Mr. Chang and Mr. Kullmann: Aldo Chang and George Kullman were both immigration officers at the airport in Toronto at the time in question. The allegation against them is that they conspired with others in a scheme whereby the two accused would sell visitor’s visas to be used to aid the coming into Canada of persons without valid documentation. The indictment as originally framed covered the period from December 20, 1995 to January 12, 1996, but the December 20th commencement date was amended at outset of trial to June 1, 1995.

At page 20 of her judgment Molloy J. sets out what she refers to as the “cast of characters”:

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Decision Page 8 It is useful first to review the cast of characters. The two accused Aldo Chang and George Kullman were immigration officers at the airport in Toronto. Aldo had a cousin, Albert Chu, who was a chartered accountant and part-time immigration consultant. Albert Chu acted as a middleman between Aldo Chang and Eddy Chan. Albert Chu was introduced to Eddy Chan by a mutual acquaintance, William Fong. Fong does not appear to have performed any other substantial role. Eddy Chan was the link to potential purchasers for the visas. It was through Eddy Chan that Allan Lim was brought into the scheme in the fall of 1995 as a potential purchaser of visitor’s visas for prostitutes he was bringing into Canada from Thailand. It was also through Eddy Chan that Ming Sun Chiu was brought in as a potential purchaser for visitor’s visas to bring people over from the People’s Republic of China. George Kullman’s only link with any of the other alleged participants in the conspiracy was through Aldo Chang. He never had any direct contact or dealings with anyone other than Chang. Aldo Chang dealt with Albert Chu. He did meet Eddy Chan on one occasion but never dealt with him directly.

Eddy Chan dealt directly with purchasers and with Albert Chu. Generally speaking, Aldo Chang and George Kullman were the alleged vendors, with Albert Chu serving as their go-between or middleman in dealing with the purchaser side. Eddy Chan was the middleman from the purchasers’ side and the alleged purchasers are Allan Lim and Ming Sun Chiu.

There are intercepted telephone conversations involving all of these men. There was also viva voce evidence at trial from Albert Chu, Bill Fong, and Ming Sun Chiu.

At page 22 and the following, Molloy J. outlines the relevant facts: The first direct evidence of Aldo Chang being involved in the sale of visitor’s visas is an intercepted telephone conversation between Aldo Chang and his cousin Albert Chu, on October 6th 1995. It is clear that there had been previous discussion of the issue between the two of them. There were also a number of earlier intercepted calls involving various combinations of Albert Chu, Eddy Chan, Bill Fong and Allan Lim.

During their October 6th 1995 telephone discussion, Albert Chu and Aldo Chang talked for the first time of the payment of a fee to Chang a to provide "insurance" for the smooth entry of two girls from Thailand who already had visitor's visas issued there. (This aspect of their dealings

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Decision Page 9 gave rise to the charge in Count 1 of the indictment). At that time it was discussed that the person bringing in these girls was also interested in purchasing two to five visitor's visas and that the sale of these visas would be a 'package deal" along with the "insurance" coverage for the two girls who already had visas.

There was also a discussion about this "insurance" idea not being part of the original "theme". From the context of these discussions, it is obvious there had been earlier negotiations about the sale of the visitor's visas and it was the visitor's visa sale which was the original "theme" of their dealings. The manner in which the potential purchasers and vendors came together in September/October 1995 is revealed by the evidence at trial of Bill Fong and Albert Chu as well as the intercepted communications among Fong, Chu, Lim, and Chan. I rely on these conversations not for their truth, but merely to show what was said between these individuals which resulted in the proposed purchase of visitor's visas coming about.

The first step in the process was Aldo Chang telling his cousin Albert Chu that Aldo had a co-worker at Canada immigration who had obtained some blank visitor's visas. Albert Chu passed this information on to Bill Fong who told it to Eddy Chan. They discussed the possibility of the visas being sold to a person they referred to as "John" who could use them for prostitutes coming from Thailand. It is clear this is a reference to Allan Lim. Subsequently Eddy Chan and Albert Chu made contact and the actual negotiations for the purchase of the visas began. Thus, the impetus for these parties eventually getting together came from Aldo Chang in the first instance making it known to his cousin that these blank visas existed.

On October 9th, 1995, there was a further telephone conversation between Albert Chu and Aldo Chang in which Chu advised that the purchasers wanted to look at the visas. Chang's response was to query why they wanted to "see it again". This is an obvious reference to a meeting referred to by both Albert Chu and Bill Fong in their evidence at trial but for which neither was able to provide a definite date. It is clear that this meeting occurred prior to October 9th, and that it was fairly close to that date, possibly late September or early October.

The meeting took place at Albert Chu's business premises, Take 1 Studios. The purpose of the meeting was for Aldo Chang to show the sample visa to a prospective purchaser or purchasers. The meeting was attended by Aldo Chang, Albert Chu, Eddy Chan and Bill Fong. Aldo Chang displayed a blank visa at the meeting, said that his colleague

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Decision Page 10 had acquired it from an overseas office and demonstrated how you could tell it was genuine.

The second meeting to show the visa which was suggested in the October 9th telephone call never took place. On October 15, 1995, Ms. Chansiri arrived in Toronto, as I have referred to above in respect of my reasons on Count 1.

At this juncture Albert Chu and Eddy Chan were still discussing the price the purchaser would pay for the visitor's visas. Aldo Chang told Albert Chu that the basic cost to be paid to Chang for an visitor's visa would be $5,000, and that extra amounts would be charged for additional services such as "insurance" at the airport, or a full work permit entitling the holder to work as a nanny. It was understood between them that the ultimate price to the purchaser would be considerably higher as all the middlemen in between would also be taking a cut. When these various pay offs were added in, the final cost to Allan Lim for a visitor's visa was in the range of $10,000. Mr. Lim told Eddy Chan the price was too high. He said he would pay $7,500 and that $8,000 was negotiable.