FPSLREB Decisions

Decision Information

Klouvi v. Deputy Head (Department of Employment and Social Development)

Collection	FPSLREB Decisions
Decision Rendered	2023-09-26
Citation	2023 FPSLREB 88
File Number	566-02-9371
Before	Chantal Homier-Nehmé
Decision Type	Labour Relations
Judicial Reviews	An application for judicial review filed with the Federal Court of Appeal (Court File A-281-23) was dismissed

Decision Content

Date: 20230926

File: 566-02-9371

Citation: 2023 FPSLREB 88

Federal Public Sector

Labour Relations and

Employment Board Act and

Federal Public Sector

Labour Relations Act

Armoiries

Before a panel of the

Federal Public Sector

Deputy head

(Department of Employment and Social Development)

Respondent

Indexed as

Klouvi v. Deputy Head (Department of Employment and Social Development)

In the matter of an individual grievance referred to adjudication

Before: Chantal Homier-Nehmé, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Baidy Mbaye, counsel

For the Respondent: Geneviève Ruel and Pierre Marc Champagne, counsel

Heard at Montréal, Quebec,

August 1, 3, and 4, 2017, and January 9 to 11 and February 6 and 7, 2018.

(Written arguments filed June 23, August 20, and September 14, 2020.)

[FPSLREB Translation]

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Individual grievance before the Board

[1] On April 18, 2013, Roger Klouvi (“the grievor”) was terminated from his position as a PM-04 program officer, Citizen Services, Service Canada (Human Resources and Skills Development Canada; “the employer” or “Service Canada”), retroactively to the date of a suspension without pay for breaching the Values and Ethics Code for the Public Sector (“the Values and Ethics Code”), snooping in the Employment Insurance databases, and participating in a fraud of several hundred thousand dollars under the New Horizons for Seniors Program (“the Seniors Program”).

[2] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board (PSLRB) and the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

[3] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA, the PSLRA, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act, and the Federal Public Sector Labour Relations Regulations.

[4] In the termination letter, the employer alleged that among other things, the grievor was involved in the creation of shell organizations and grant projects for which Government of Canada funding was provided but that did not carry out any legitimate activities. According to Service Canada, the facts gathered indicate that the grievor was involved in the management of just over 15 grant projects for the Seniors Program from April 2007 to April 2011, the period during which the employer identified suspicious files. The employer maintains that the repetitive and prolonged nature of the grievor’s actions justifies the termination.

[5] The grievor contends that the employer’s decision to terminate him is ultra vires (beyond the employer’s powers) as the employer obtained evidence, including the list of witnesses, from the Royal Canadian Mounted Police (RCMP). He alleges that the employer abused its powers and that it was biased in the investigation, in violation of his rights as set out in s. 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). He seeks to be reinstated in his position, not to suffer any loss or benefit, and to have his integrity restored.

II. The decision of the Court of Québec’s Criminal and Penal Division

[6] As of the hearing, the grievor was charged with the following six criminal charges: three counts of fraud, two counts of conspiracy, and one count of fraud against the federal government. The facts underlying the criminal charges of fraud under the Seniors Program are the same ones that led to the termination of his employment. On November 12, 2019, the Court of Québec’s Criminal and Penal Division orally pronounced the grievor guilty on all counts.

[7] On May 25, 2020, the employer sent the Board the decision of the Court of Québec’s Criminal and Penal Division. On May 27, 2020, the Board asked the parties to provide their positions on the impact of that decision on the outcome of the grievor’s grievance. The employer provided its position in writing on June 23, 2020, stating that in the absence of a request from the grievor for a stay of the Board’s decision, the Criminal and Penal Division of the Court of Québec’s finding that the grievor was guilty should not be questioned through this adjudication and should instead confirm the employer’s position on the misconduct alleged against the grievor that led to his termination.

[8] The employer referred me to Watson v. Canada, 2003 FC 1377, in which the Federal Court of Canada recognized and applied the principle that convictions that are proven beyond a reasonable doubt and the essential findings on which they are based require a high level of deference and restraint. Therefore, an adjudicator placed in such circumstances should legally give full effect to the conviction. A decision contrary to that of the Court of Québec’s Criminal and Penal Division would undermine the principles of economy, consistency, and finality of proceedings and the integrity of the administration of justice because that would be tantamount to saying that contrary to the criminal trial judge, the grievor did not commit fraud, all the while ignoring the principles that the Supreme Court of Canada established in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

[9] The grievor contends that the decision of the Court of Québec’s Criminal and Penal Division has no bearing on the outcome of his grievance. He maintains that that decision should be ignored. He argues that his grievance raises two fundamental points: the issue of procedural fairness, and contesting the acts of which he is accused. The grievance and the issues it raises are completely excluded from the record of the decision of the Court of Québec’s Criminal and Penal Division and therefore from the judge’s analysis. The grievor argues that the employer’s failure of procedural fairness is a substantive defect that would invalidate the termination, regardless of the truth of the acts that the employer accuses him of. To him, this is a fatal error that taints the termination’s validity. The Board must consider this point solely in the light of the evidence before it on this matter while accounting for the legal and factual constraints specific to the context of the termination.

[10] The grievor contends that the decision of the Court of Québec’s Criminal and Penal Division is not admissible in evidence because the evidence of the grievance before the Board is closed. To support his claim, the grievor referred me to Fraternité des policiers et policières de Gatineau v. Moro, 2020 QCCS 2272. To him, the Superior Court of Quebec judge in that decision unequivocally addressed and set aside the principle of the stability of judicial and administrative tribunal decisions, which is the stare decisis rule, and the principle of consistency in decision making. The Board must ignore the decision of the Court of Québec’s Criminal and Penal Division by considering the issue of procedural fairness.

[11] In reply, the employer stated that a careful reading of the decision that the grievor cited shows that instead, it supports the employer’s position. At paragraphs 58, 61, and 152 of Moro, the Superior Court of Québec recognized that that decision constituted a legal fact that the arbitrator could not ignore. The reasons that the arbitration tribunal in Moro deviated from the Ethics Committee’s conclusions differ greatly from the factual and legal situation in this case and do not apply to the grievor’s termination.

[12] At the hearing, when he made his opening remarks, the grievor stated that he would present evidence that the employer had breached its duty of procedural fairness during the administrative investigation, which was a substantive defect that would invalidate the termination. I drew his attention to Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL), which holds that such defects be remedied by a hearing de novo before an adjudicator. His representative replied that while he was aware of that judgment, nevertheless, he stood by his representations.

[13] For the following reasons, the grievance is denied, and the termination is maintained. I carefully read the decision of the Court of Québec’s Criminal and Penal Division and the parties’ arguments with respect to its bearing on the outcome of the grievance, and I find that regardless of the findings of the Court of Québec’s Criminal and Penal Division, the preponderance of the evidence established that the grievor committed the acts alleged in the termination letter. He presented no evidence and no legal argument that would justify the Board’s intervention to rescind the termination or reduce the disciplinary action.

[139] As for her email exchanges with Mr. Dussault and Mr. Legris on July 17, 2012, Ms. Addison-Roy’s request to hire a firm to compare the grievor’s signature with the signature provided on the false letters by Mr. Jacques was denied as there was sufficient evidence at that time to recommend terminating the grievor. There was no need to compare the signatures.

[140] As for her email exchanges with Ms. Brisson and Mr. Dussault, Ms. Addison-Roy wanted to know whether they could obtain copies of the cheques. Ms. Addison-Roy had checked with Mr. Comeau as to whether they could be obtained. Ms. Addison-Roy explained that the expression that she used in her email, to ensure that she was shielded and supported by Mr. Comeau, was meant to ensure that the investigation was lawful, without using powers that were not conferred on them.

[141] Ms. Addison-Roy explained that the investigation revealed that the grievor had used Service Canada’s Employment Insurance database to consult the files of colleagues, friends, members of the Togolese community, and individuals involved directly or indirectly in fraud in the Seniors Program. According to the investigation report, the grievor had the opportunity to explain his version of the facts. The grievor was given the opportunity to explain the multiple emails that he had sent from his professional email account. According to the investigation report, the grievor had acknowledged his wrongdoing with respect to snooping in the Employment Insurance database by consulting the files of colleagues, friends, and members of the Togolese community. He had not really understood the Values and Ethics Code with respect to snooping. He took responsibility for and regrets his actions. Although he also acknowledged his wrongdoing about the privileged information that he gave to his acquaintances by email, he again admitted that he had a poor understanding of the Values and Ethics Code. According to him, providing general information is not contrary to the Values and Ethics Code. The grievor denied any involvement in any organization. Ms. Addison-Roy met with the RCMP two or three times during the investigation to present documents and explain the fear of potential fraud. She did not recognize the document adduced in evidence in Exhibit G-33. The document consists of notes of the May 18, 2012, meeting with the RCMP. She doubted that she had written it because she does not make mistakes when she writes.

[142] In the investigation report, Ms. Addison-Roy concluded that the bond of trust no longer existed. That is why she and the investigation team recommended that the grievor be terminated, considering the seriousness of his actions. With Human Resources’ help, the recommendation was presented to the decision maker. The facts were presented to the grievor, and he was given an opportunity to respond to them.

H. The grievor’s version of the facts

[143] The grievor testified that he did not have a permanent job as of the hearing. He was doing on-call work for a publishing company as an assistant operator, two or three days a week. He gave a brief overview of his Service Canada career as an Employment Insurance evaluator, as a program officer, and as a senior advisor. The grievor knew the Seniors Program well. He knew how to screen grant applications and how to check documents. At the screening stage, it is necessary to verify that all documents are present and that the application is complete. The application is verified, to ensure that it meets the program objectives. Once the analysis is complete, a score on a scale from 0 to 100 is assigned. This does not mean that the project with the highest score will be approved. There is another approval stage with other decision-making criteria for tax approval.

[144] The grievor was trained on the “Capital Assistance funding” and “Community Participation and Leadership funding” under the Seniors Program. These documents were available to the public. As a program officer, the grievor had no decision-making authority over awarding grants. That authority was vested in the regional office and other partners to decide the final award of a grant application. During the time that the grievor worked in Programs in 2007, he had not been involved in the full cycle of a grant project. He had experience only in screening and in the analysis stage. He never had the opportunity to complete the recommendation stage and was not familiar with the final-decision approval process.

[145] The grievor was very involved in the Togolese community. He was known as the “[translation] dean” of the community. He was part of the first wave of Togolese immigrants in 1998 and 1999. From 2003 to 2007, he was the president of the Togolese Association. His community applied for contributions and grants under the programs. He then decided to end his functions in the Togolese Community Association because of the Values and Ethics Code.

[146] The grievor was the vice-president of Amnesty International Togo, as well as Development and Peace in Montréal from 2001 to 2004. This organization had no relationship with the federal government, so the grievor continued in his position in that organization. The grievor did not complete a confidentiality report in his first position, as the Values and Ethics Code stated that he had 60 days to do it. His first job at Service Canada was a contract position for January 2007. His contracts were extended by 1.5 months until the grievor became a permanent employee in 2008.

[147] To comply with the Values and Ethics Code, the grievor refrained from participating in organizations applying for federal government grants. In June 2007, he withdrew from any organization that had dealings with the federal government. All his fellow citizens knew that he worked for Service Canada. In his community, he did everything he possibly could to encourage his fellow citizens to participate in social activities. During his term as president, he informed the office of the Togolese Association about the different possibilities for social involvement. The information he provided is available in the guides on the Service Canada website. They asked him about Employment Insurance and social insurance and everything pertaining to Service Canada. Some information he could not share. He did not hold back from sharing information that was available to the public. The grievor told this to Mr. Lefort during the pre-disciplinary meeting.

[148] The grievor was suspended without pay on April 10, 2012. The suspension came into effect on April 5, 2012, as the grievor had not reported to the office. The grievor met with Mr. Dussault and Ms. Brisson on October 30, 2012. He made a complaint to the access-to-information commissioner because his request had not been processed on time. His complaint was allowed. The access-to-information request was made for his grievance filing. The grievor wanted to send along all the information, but unfortunately, his application was not replied to on time. He received a response to his complaint after his termination. His grievance was presented at the final level without the documentation underlying his termination. The grievor submitted his request for documents on April 18, 2013. He received an acknowledgement of receipt but did not receive a response until May 2015. In the meantime, he made his complaint. In 2014, he was criminally charged. In May 2015, he received the documentation.

[149] As stated in Exhibit G-35, the complaint under the Privacy Act (R.S.C., 1985, c. P‑21) was deemed founded as it was not answered within the 30-day time limit, as provided in that Act. In Exhibit G-36 are questions that Mr. Dussault and Ms. Brisson asked in an interview of the grievor. The grievor stated that he knew Frédéric Zonnon (Mr. Zonnon’s brother) as a former co-worker at Service Canada. Mr. Zonnon was his fellow citizen from the Togolese Community in Canada. In response to a question, the grievor replied that he had not prepared grant documents for the Seniors Program. He also answered a question that he had read the Values and Ethics Code on his hiring and that he had taken training in 2011. He was aware of the snooping policy. He mentioned the grant applications he remembered as of the interview. The grievor confirmed that he had not shared his passwords with anyone.

[150] According to the grievor, the Quebec Enterprise Register does not contain up-to-date information. He left Diastode-Canada as being involved in producing conflict-of-interest confidentiality reports was significant work. However, I note that the grievor did not submit any documentary evidence to that effect. The grievor knew almost all the people mentioned in the investigators’ list of questions. He did not know T.A. He had no connection with that person. The grievor also did not know T.K. That person was looking for information on social insurance. T.K. wanted to access his benefit file. The Internet link was not working, and the site was slow, so he sent his social insurance number and access code to the grievor. The grievor refused to use T.K.’s access codes. Instead, the grievor asked T.K. to go to the Service Canada website. The grievor said that several of his Togolese compatriots expected him to help them. The grievor explained to them the guidelines that he had to follow and told them that he could not even provide his contact information. The grievor told T.K. to call the centre and to go in person, to obtain the information that he needed.

[151] The employer objected to the questions about the interview during the investigation with Mr. Dussault and Ms. Brisson. The employer raised the rule set out in Browne v. Dunn, 1893 CanLII 65 (FOREP), which states that the grievor should have cross-examined those witnesses so that they could give their versions of the facts. I took the employer’s objection under reserve and asked the parties to make the necessary arguments as to the scope to be granted for the grievor’s testimony with respect to the questions of Mr. Dussault and Mr. Brisson.

[152] The grievor testified that he only explained the context of the program and that he provided explanations for the missing documents. He did not understand that there was a risk of conflict of interest. The grievor denied any involvement in developing grant projects. He denied signing the letter from the Canadian Togolese Community. He did not participate in any grant application, and according to the statements, he did not participate in any of those organizations’ operations or forge any letters of support.

[153] The grievor referred to the purchase of a personal computer. He had requested that the computer be delivered to his office, with authorization from management. He could not answer the investigators’ questions about the computer in question.

[154] The grievor denied forging the letter with respect to the Association of Retirees. The grievor stated that he was not involved in developing or documenting the project. He did not sign a letter of support. He was unaware of the $12 800 cheque. The grievor denied receiving money from Mr. Gedu in the past. He had already lent money to Mr. Gedu. It was a loan of money before he became a public servant. Mr. Gedu never paid it back, and he was not associated with him.

[155] With respect to the Social Development Club, in September 2010, the grievor was on annual leave. The grievor denied sending letters. He asked when the letter was sent. The investigator never answered him.

[156] The grievor denied preparing letters for Mr. Zonnon for a grant application. Mr. Dussault and Ms. Brisson never showed him the documents to which they had referred. He was never shown the documents during the investigation. With respect to the cookbook, his email was not used, and the grievor denied emailing documents to Mr. Zonnon.

[157] The grievor explained that the mood was heavy during the investigation and that the questions were asked in an accusing tone. He felt that the purpose of the investigation was only to validate the collected facts, not to determine their truthfulness. He also felt that the investigators had never intended to learn his version of the facts.

[158] The grievor was completely unaware of the sum of $19 575 and the grant application that was submitted. With respect to the cookbook prepared as part of the Association’s grant application, his email address was not used, and he never emailed Mr. Zonnon. The purpose of the exchange between the grievor and the investigators was not to obtain his version of the facts. The investigators simply tried to validate the results of their search. They never intended to obtain his version of the facts. The grievor was unaware of the grant applications presented by the investigators.

[159] With respect to the grant project submitted by the Social Development Club, of which the grievor’s spouse was a member, the grievor denied preparing a letter of support from the Association of Retirees from Cultural Communities of Montréal East and sending it to Mr. Zonnon. He also did not prepare a false lease. He was unaware that the $19 575 was split between his spouse and Mr. Zonnon’s spouse.

[160] With respect to the grant application of the Social Development Club, of which his spouse was the organization’s treasurer, the grievor was unaware that his spouse had a bank card and cheques signed by Mr. Zonnon’s spouse. He was unaware of the sum of $22 175. He was unaware of the letter of support signed by Mr. Agbazé and validated by Mr. Zonnon. He made no recommendations with respect to it.

[161] The grievor denied any knowledge of his spouse’s involvement in Integration and Social Development. He had no knowledge of leading meetings of the board of directors or of letters of support involving this organization. He had not seen the confessions to which the investigators referred. He was unaware of that organization’s grant applications.

[162] With respect to the false letter of support from the Seniors’ Association of Laval in the September 2009 grant application from the Association, the grievor denied providing a letter template to Mr. Zonnon. The grievor did not ask Mr. Zonnon any questions to that effect in cross-examination. The grievor did not tell Mr. Zonnon that he would contradict his testimony.

[163] With respect to the 2009 and 2010 grant applications from the Association for $24 000 and the letter of support from the Canadian Togolese Community, the grievor said that he was not involved. He did not provide any explanations at the hearing in response to his email exchanges with Ms. Tabiou about the $24 000 cheque and his comment that the government was paying for the intent to conduct activities, not actually conducting them. The grievor denied both being aware of the letters from Sophie Desjardins and signing them.

[164] The grievor denied being involved in Diastode-Canada in September 2009. He did not know who signed the grant application if it was not Mr. Gedu’s signature that appeared. He did not apply for a grant for that organization. He was unaware that this application had been rejected or that the Canadian Togolese Community had signed a letter of support and that there would be a conflict of interest because the grievor was part of the Canadian Togolese Community at that time.

[165] The grievor was unaware that the Seniors’ Social Development Group had provided a letter of support from Diastode-Canada signed by the coordinator, Mr. Gedu. He was unaware of the grant application in the amount of $24 600. He denied sharing that money with Mr. Zonnon.

[166] The grievor acknowledged his close relationship with Mr. Zonnon. He was closer to him than to anyone else. He had good and friendly relationships with Mr. Zonnon and his spouse. Both couples visited each other. They worked together as Employment Insurance assessment officers in 2006. Everyone in the community knew that the grievor had changed jobs because he had been the president of the Canadian Togolese Community until 2007.

[167] In 2009, Mr. Zonnon asked him to learn about the Summer Studies and New Horizons programs. At that time, the grievor was a regional advisor at Service Canada. He never responded to Mr. Zonnon’s requests. Mr. Zonnon’s brother provided the information to Mr. Zonnon. The grievor knew Mr. Zonnon’s brother; they worked together in 2007.

[168] The grievor said that Mr. Zonnon wanted more information. He referred him to the website for more information. He only provided information that was available to the public. The information was always shared orally. He never provided him with documents. He never helped him fill out grant applications and never received any money from Mr. Zonnon. He derived no benefits of any kind from Mr. Zonnon. He never asked Mr. Zonnon to take any particular action.

[169] The hearing was the first time that the grievor had seen the document of grant application number 7260169. When it was made, he was not a program officer. On June 6, 2008, he was an Employment Insurance processing officer. He has never been a member of that organization. He did not participate in any of the activities. The grievor knew that the grant application had been approved during the administrative investigation and at the hearing. He denied receiving a contribution.

[170] The grievor had no knowledge of the grant application numbered 7260169 or of the fact that it had been approved in the amount of $18 000. The first time he saw the document was at the Board hearing. It was the same for the cookbook. He saw that document for the first time at the Board hearing. He does not know who produced that document. He had never seen the document’s contents before the hearing. The cookbook was supposedly prepared with the Government of Canada computer assigned to him. The grievor stated that there was no way to know where that document came from. His work computer was of the Dell brand. The document’s properties do not confirm the document’s author or origin.

[171] The grievor made an access-to-information request to obtain all the documents underlying the administrative investigation. The document in Exhibit G-37 indicates that Ms. Addison-Roy requested an analysis of the grievor’s computer hard drive. Ms. Addison-Roy made that request on July 30, 2012, with respect to the investigation that began in 2011. The result of the investigation was that it had found nothing according to the parameters of the investigation requested by Ms. Addison-Roy. Therefore, the cookbook document did not originate from the grievor’s work computer.

[172] With respect to the grant application numbered 9152208 from 2009 in the amount of $24 000 for the Association, the grievor was unaware of it. He did not help by providing documents or completing the application. In September 2009, the grievor worked as a regional advisor in the Citizen Services Branch. He had no knowledge of the activities. He never claimed a share or a sum of money. He never received any information or gave any information or documentation to help Mr. Zonnon.

[173] As for the false document bearing the name of Sophie Desjardins, he had seen it during the administrative investigation. They are letters, but he does not know where they come from. He does not know who signed them. He did not know who claimed that he created the documents. Mr. Dussault and Mr. Brisson never told him.

[174] According to the grievor, his meeting with Ms. Tabiou, Mr. Zonnon, and Mr. Agbazé about the $24 000 cheque was intended simply to explain to Ms. Tabiou that the activities could be conducted without her. I note that at paragraph 170, the grievor denied any knowledge of the grant application, but that a few minutes later, he agreed that he had attended a meeting about that application. The grievor had no intention of obtaining money. It was just to provide explanations to Ms. Tabiou. The grievor was not a member of the organization, but he had travelled to Gatineau with Mr. Zonnon and Mr. Agbazé to meet with Ms. Tabiou at her home. Ms. Tabiou was looking for other information that he did not have. He understood that she wanted to return the cheque, but their organization and their internal organization did not want to. His participation at the meeting led to confusion. This was his only intervention to ensure the continuation of the project. He did not understand Ms. Tabiou’s insistence on returning the cheque.

[175] The grievor was also unaware of the Social Development Club’s grant application numbered 8989055 that was submitted by Mr. Zonnon’s spouse in 2009 and approved in March 2010 in the amount of $22 175. He had no information about the processing of that application. No information had been shared with him. He was not involved in preparing documents; nor did he know how the grant money was used. Furthermore, he had never seen a completed report template. He did not prepare the document.

[176] The grievor was also unaware of the Social Development Club’s grant application numbered 10305290 for the approved amount of $24 000 in 2011. The grievor denied any involvement in that grant application. He saw the document for the first time at the Board hearing. He never provided any advice or information to advance the application; nor did he receive any money.

[177] In cross-examination, the grievor stated that he contacted the Public Sector Integrity Commissioner to ask the question about his spouse’s involvement in an organization with her and Mr. Zonnon. He had heard a conversation between his spouse and Mr. Zonnon about programs and projects. He noticed that the relationship between Mr. Zonnon and his spouse had changed. He later learned that the grant application had been approved but that they had not yet received the cheque. The grievor asked Mr. Zonnon why it was that amount of money. He asked him what it was about. The grievor told Mr. Zonnon that if he did not have good intentions or if the activities were not to take place, he would report the situation. The grievor provided a copy of the Public Sector Integrity Commissioner’s response to Mr. Lefort. He never committed any embezzlement or fraud. He did not believe that it was necessary to inform the Public Sector Integrity Commissioner that he had screened the grant application of his spouse’s organization.

[178] The grievor’s spouse was aware of the situation, and the grievor told her that if there was any embezzlement, he would report them. He had warned his spouse, and his spouse had informed Mr. Zonnon of it. The grievor had doubts about Mr. Zonnon’s and his spouse’s ability to deliver the activities. From that point on, the relationship with Mr. Zonnon changed. The grievor completely withdrew. There was no more conviviality. The grievor’s spouse informed Mr. Zonnon that the grievor would report them. The grievor’s spouse was a member of the Social Development Club and Integrity and Social Development. She resigned from those organizations. The grievor denied helping his spouse with her grant applications. His spouse was autonomous, and she conducted the activities. She participated in community and church activities, but they did not talk about it.

[179] The grievor believed that the criminal investigation and the administrative investigation had been merged. The investigators exchanged information. In October 2012, the RCMP provided information to the Service Canada investigators. The RCMP investigators provided a report of what the grievor had discussed with them. The grievor had made an access-to-information request to the RCMP, but it was denied because the documentation was before the courts. The grievor testified that he was unable to present his evidence to the Board but did not indicate the documentation that he was missing. Several times during the hearing, I informed the grievor that he could make a request for the disclosure of information and documents at any time. The grievor did not submit any requests. Documents were reviewed in the administrative investigation that he could not access. The grievor did not specify his allegation or identify any documents. Exhibit G-40 sets out that in August 2012, Service Canada would recommend terminating the grievor even before meeting all the witnesses in the administrative investigation.

[180] The document of the complaint to the Office of the Privacy Commissioner of Canada, which the commissioner determined founded, was based on the fact that Mr. Dussault had followed the grievor during the administrative investigation. According to the grievor’s testimony, his rights were violated because there was a photograph of his residence at the time of the unpaid suspension and the confirmation of his home address.

[181] According to the grievor, the information in the Quebec Enterprise Register was not up to date as of the alleged events. He stated that during the administrative investigation. During the disciplinary hearing, he also stated that the investigation report was erroneous.

[182] With respect to the snooping, the grievor knew that he was prohibited from searching files that were not his own. He could search by name or social insurance number. He understood the importance of protecting taxpayers’ information. All his accesses from 2006 to 2012 were audited. The grievor never denied snooping in files that were not his own, but he did not fully understand his obligations under the Values and Ethics Code. Now, he understands better the importance of not snooping. He never disclosed any taxpayers’ personal information.

[183] The grievor maintained that from the start, the investigators followed a path to incriminate him. They looked for witnesses to incriminate him rather than to shed light on the situation. The mandate was designed to incriminate him, not to seek the truth. In August 2012, before meeting with him in October 2012, the recommendation was made to terminate him. Ms. Addison-Roy negotiated the revocation of his reliability status, to be able to terminate him. The investigators had letters and documents that he had never seen. According to Mr. Lefort, the grievor’s observations were minor. According to the grievor, the decision to terminate him was not made fairly and equitably. He raised several inconsistencies in the investigation report, and none was corrected.

[184] The decision makers and those who made the recommendations for the termination did not have the correct information. The grievor asked to be reinstated in his position. He asked that justice be served. He also asked for a letter of apology. He has been humiliated and wounded, and his reputation was ruined. He asked for the chance to mourn that wound. He is ready to return to work in a professional manner.

[185] The grievor reaffirmed under oath that he never committed any embezzlements, received any money, or personally benefited from the grant program. He never committed fraud, and had he had any suspicions about embezzlement in organizations he knew, he would have disclosed it to the Public Sector Integrity Commissioner, whether they had to do with the grant projects of Ms. Tabiou, Mr. Agbazé and Mr. Zonnon, or even of his spouse.

V. Reasons and arguments

[186] An adjudicator seized of a matter involving a termination must assess whether the conduct that gave rise to the termination took place and whether the penalty imposed is proportional. If the penalty imposed is excessive, the Board will intervene to determine the appropriate penalty (see Basra v. Canada (Attorney General), 2010 FCA 24 at paras. 24 to 26; and William Scott & Co. v. C.F.A.W., Local P-162, [1977] 1 Can. L.R.B.R. 1 at paras. 13 and 14 (“Wm. Scott”).

[187] The termination letter, dated April 18, 2013, and signed by Ms. Bélisle, sets out the following misconduct allegations:

[Translation]

…

i. breach of the Values and Ethics Code;

ii. snooping in the government’s Employment Insurance databases; and

iii. direct and indirect involvement in a fraud of several hundred thousand dollars under the New Horizons for Seniors Program.

…

[188] It is the employer’s responsibility to establish the underlying facts relied on to justify the termination as well as its appropriateness (see Palmer & Snyder, Collective Agreement Arbitration in Canada, 4^th ed., at paragraph 10.67). The standard of proof is that of the civil standard of the balance of probabilities.

[189] Examining the proportionality of the penalty requires considering all relevant related circumstances, including the mitigating factors, such as the grievor’s clean disciplinary record, his years of service, and the aggravating factors, such as the grievor’s mindset and the repetitiveness of the actions taken, which are directly related to his guilt (see Wm. Scott, at para. 14; Samuel‑Acme Strapping Systems v. U.S.W.A., Local 6572 (2001), 65 C.L.A.S. 157 at para. 210; Georgian Bay General Hospital v. OPSEU, Local 367 (2014), 243 L.A.C. (4^th) 112 at paras. 58, 65, 66, and 68; Fundy Gypsum Co. v. U.S.W.A., Local 9209 (2003), 117 L.A.C. (4^th) 58 at paras. 40 and 45; and, more generally, Brown and Beatty, Canadian Labour Arbitration, 5th ed., at 7:4424).

[190] Specifically, it must be determined whether the grievor’s misconduct was sufficiently serious to justify the termination as a disciplinary action. The issue is whether the disciplinary action was proportional to the seriousness of the alleged misconduct (see McKinley v. BC Tel, 2001 SCC 38 at paras. 29, 48, and 57; and Basra v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 28 at para. 29).

[191] The employer had to prove the allegations listed in the termination letter, which, in its view, justified the termination. In particular, it had to establish that on a balance of probabilities, the grievor breached the Values and Ethics Code, snooped in the government’s Employment Insurance databases, and participated in a fraud of several hundred thousand dollars under the Seniors Program.

[192] If the employer discharges that burden, it must then establish that the measure imposed was proportional to the seriousness of the misconduct. When determining proportionality, I must determine whether the disciplinary measure imposed was excessive by considering all relevant related circumstances, including the mitigating and aggravating factors. If I find that the measure was not excessive, it remains valid. If I find that the termination was excessive, I must decide what disciplinary measure is warranted.

A. The employer’s arguments

[193] The employer argued that it did not take the grievor’s termination lightly. The discovery of certain information in 2011 led to the administrative and criminal investigations. The grievor raised doubts about the evidence adduced by the employer’s witnesses and the evidential weight of the documents and testimonies of the different stakeholders. The decision to terminate the grievor was made based on the investigation report and the gathered facts. It is not up to the managers, in this case Mr. Lefort and Ms. Bélisle, to redo the investigation before making a decision. Even if there is evidence, however weak, it must be contradicted to overturn the termination. The issue is as follows: on a balance of probabilities, is it likely that the grievor committed the misconduct alleged in the termination letter? The grievor could have called witnesses of his choice, but he chose to base his evidence solely on the evidence of managers and his testimony. The grievor submitted that the investigation report was hearsay. That argument applies to both the grievor and the employer. The employer acknowledges that there were many typos in the investigation report. When the administrative investigators met with the grievor, they failed to make the minor changes identified by the grievor. However, this does not change the fundamental elements of the file and the serious allegations made against the grievor. The people interviewed during the administrative investigation testified at the hearing. The Board must weigh the grievor’s evidence against that of the other witnesses.

[194] The employer asks itself why the grievor, a man who is responsible and involved in his community and known to all suddenly is accused by so many people with whom he had ties, others not, and different projects and different people; why are those people suddenly testifying against him? The grievor did not present any explanations or triggers for a conspiracy against him for any specific reason. Furthermore, the grievor did not submit any evidence to that effect. Those who testified about the transactions, in which they participated or refused to participate in Ms. Tabiou’s case, said that they were transactions that should not have occurred. Fraud, in the sense of dishonesty, underlies the allegations. The scheme was not complex. The grievor was always involved in the background in the grant applications. The vast majority of the people around him testified that he helped complete the grant applications or completed them himself. All the witnesses confirmed that the activities never took place. The grievor received his share for helping. Why are all these people giving similar testimony against him? The employer submits that it is more than likely that the grievor behaved as alleged.

[195] Each witness’s credibility must be weighed against the rest of the evidence as a whole. If the witness’s evidence coincides with the facts, chances are that it is more than likely that things happened as was testified. Mr. Zonnon had nothing to lose or gain. He pleaded guilty, signed a certificate to that effect, and confirmed at the hearing what he had done. In cross-examination, the grievor failed to dispel the fact that Mr. Zonnon had given him an amount of money. Only the dates do not match. Mr. Zonnon’s candour must be considered; there are facts and circumstances surrounding the facts. Mr. Zonnon often had difficulty remembering the dates and times of his interactions with the grievor. However, the employer challenges the grievor to state that he did not take the money. Why end such a long-standing friendship? Mr. Koutou testified and signed a serious statement. He admitted that he was involved in the fraud, that he received cheques, and that he shared the amounts of the cheques with the grievor. Mr. Koutou had nothing to gain from his testimony before the Board. Mr. Koutou’s testimony was even more surprising than Mr. Zonnon’s, as he admitted things that could have serious repercussions for him. At the hearing, the grievor never confronted Mr. Koutou on this matter. Therefore, the evidence from those witnesses is serious and important.

[196] Ms. Tabiou was transparent and credible. She testified and always acted in good faith throughout all the events. She had nothing to gain from testifying against the grievor. In addition, she still works in the public service. She explained what happened, under oath. She put herself at risk. She believed that the first grant of $18 000 had not been accepted. Later, she found out that the cheque had been cashed. She felt discomfort because there was a possibility that her name might be associated with those people. She truthfully stated that she wanted to return the $24 000 cheque for the second grant application. There is a discrepancy between Ms. Tabiou’s testimony and the grievor’s version of the facts as to what happened at the meeting at her home. The real reason the grievor was there is not known. The grievor maintains that he was there as a mediator. Ms. Tabiou testified convincingly that the grievor insisted that the organization keep the cheque and try to move forward with the activities. The grievor tried to convince her not to return the cheque.

[197] The allegations of snooping and unauthorized access arose from people in the grievor’s community. The people in his personal life turn against and report him; it is no accident. The employer submits that according to the evidence, it is more likely than not that things happened as explained by its witnesses.

[198] With respect to the grievor’s position on the documents’ properties, the employer’s position is that the grievor is the author of the documents that were found on Mr. Zonnon’s computer. On examination of the document’s properties, it appears that the grievor is the author of the document. The employer never claimed that the documents were from the grievor’s computer. The documents were from Mr. Zonnon’s computer.

[199] The grievor alleged that the investigation was biased and that everyone tried to terminate him. Mr. Lefort, in fact, was not motivated by the grievor’s termination, and the same is true for Ms. Bélisle. The decision was not made lightly. Ms. Bélisle made a decision informed by her experience as an assistant deputy minister. She did not sign the termination letter just because she was told to. Ms. Bélisle seriously considered the facts that were reported to her.

[200] Ms. Addison-Roy repeatedly and strongly insisted that the grievor’s reliability status be revoked during the administrative investigation. However, Mr. Comeau and Mr. Jacques refused to grant it. The reliability status was not revoked. Ms. Addison-Roy did not make the decision to terminate the grievor; it is Ms. Bélisle and Mr. Lefort.

[201] Even if the investigation report is set aside, there is much evidence that the grievor failed to contradict, among other things, the testimonies of Mr. Zonnon, Mr. Koutou, and Ms. Tabiou. Hearings before the Board are hearings de novo. Any breach of natural justice during the administrative investigation is corrected by the hearing before the Board. The grievor adduced all the evidence that he wished to submit.

[202] The employer referred me to the following decisions: Pagé v. Canada (Attorney General), 2009 FC 1299 at para. 21; Tipple; Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291 at para. 29; and Turner, at para. 118. Board hearings are de novo; that is, they remedy any irregularities during the investigation and the pre-disciplinary process. The evidence adduced at a Board hearing is heard on the civil standard of the balance of probabilities (see F.H. v. McDougall, 2008 SCC 53 at para. 26 and the following paragraphs).

[203] In Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 9 to 11, the British Columbia Court of Appeal identifies two main ideas on credibility issues. To be credible, it is not enough for a grievor to simply deny the facts and allegations against them. For the grievor to be credible, their testimony must be logical and possible in the context of all the evidence as a whole. The employer submits that the grievor’s position and testimony are inconsistent with the rest of the evidence.

[204] The employer asked the Board to conclude with respect to the case law principles in Ayangma v. Treasury Board (Department of Health), 2006 PSLRB 64 at para. 258 and the following paragraphs. The grievor’s actions were premeditated; this case does not involve a spontaneous lack of judgment. The grievor’s actions took place over a four-year period and involved several people. With respect to unauthorized access and snooping, the grievor did not provide any explanations except to say that he did not fully understand his obligations under the Values and Ethics Code very well. The grievor now claims to have a better understanding of his obligations and the need to protect taxpayers’ personal information. At paragraph 262 of Ayangma, the Board contends that in cases of fraud, the appropriate disciplinary measure is termination. The grievor committed acts of fraud by using his position and knowledge of his position with things that relate to and affect the employer’s core operations. Moreover, ignorance of the law is not a defence in itself (see Mercer v. Deputy Head (Department of Human Resources and Skills Development), 2016 PSLREB 11 at para. 51).

[205] In Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62 at paras. 181, 182, and 189, conflicts of interest in the public service are considered a serious offence in case law and may lead to termination. The grievor received an amount of money and personally benefited from his conduct. The grievor’s conduct does not constitute an isolated incident; the alleged actions took place over several years. Therefore, the termination was appropriate.

[206] The employer does not understand the purpose of the grievor’s communications with the Public Sector Integrity Commissioner in 2011 about his spouse’s involvement in the associations and her involvement in grant applications under the Seniors Program. The employer does not believe that the grievor’s intention to report his spouse if there was any embezzlement in the grant applications was sincere. Rather, it believes that it was wool pulled over the employer’s eyes to cover up his involvement in his spouse’s grant applications.

[207] The employer referred me to Gravelle v. Deputy Head (Department of Justice), 2014 PSLRB 61 at para. 90, which concluded that although the misuse of the Internet, in breach of the employer’s policy, was not established, the termination is still justified. Mr. Koutou’s evidence alone tilts the balance; the grievor cashed out money from grant cheques. The grievor did not ask Mr. Koutou any questions about the money that was cashed. This uncontradicted evidence alone is sufficient to justify the termination. In its analysis, the employer concluded that the bond of trust was irreparably broken. Service Canada must maintain public trust and cannot retain an employee who has taken the actions that the grievor has. The employer submits that the decision to terminate the grievor was reasonable in the circumstances and requested that the grievance be denied.

B. The grievor’s arguments

[208] According to the grievor, the Board must consider whether the alleged facts have been adequately proven. If so, the issue remains the reasonableness of the penalty. The burden of that proof is with the employer. The issues remain of procedural fairness in the investigation process and of fundamental freedoms under the Charter.

[209] Charter values were not respected. Through the adduced evidence, the decision-maker’s bias can be seen. The grievor is presumed guilty from the start of the investigation. The Charter values are fundamental and apply to all citizens. The grievor submits that his rights were violated, so the decision to terminate him is invalid.

[210] The termination letter and Exhibits G-8, G-9, and G-28 contain fraud allegations. All the evidence gathered and detailed in the investigation report was intended to incriminate the grievor and find him guilty of being involved in the fraud. There was a jurisdictional error. There was no delegation of authority to the investigators to conduct an investigation into fraud in the Seniors Program. The investigators did not have jurisdiction or delegation of authority. All the employer’s witnesses said that there was a prohibition on exchanging and working with the RCMP in the administrative investigation. This is unambiguous and prohibited.

[211] The evidence demonstrates that the employer knowingly sought information to incriminate the grievor and to share this evidence with the RCMP when it knew that it was not entitled to. The employer’s evidence is weak. The employer acknowledges that Mr. Dussault’s investigation report should be set aside, given its numerous shortcomings.

[212] According to the grievor, the employer has to prove the allegations on which the decision to terminate the grievor is based. The grievor has the right to benefit from the presumption of innocence in our modern society. The information gathered had to be clear, neutral, and transparent. Evidence of a criminal offence in a civil procedure must be serious. The employer’s adduced evidence, the intent with which that evidence was sought and retained, and the motivation behind seeking that evidence in partnership with administrative investigators and RCMP investigators in a criminal investigation cannot be used to decide the issue of the grievor’s employment. The criminal evidence is tainted and inadmissible.

[213] At the moment it made the decision to terminate the grievor, the employer could not justify the grievor’s termination and prove that the grievor had committed fraud. The purpose of the investigation was not to collect facts and shed light on the allegations, to make an informed decision. Quite the opposite is true. It was a compilation of facts to reach a predetermined outcome. The grievor requested that the report be set aside. Such a report cannot support a decision with such serious consequences. Exhibit G-22 is sufficient in itself to invalidate the report. The entire process should be invalidated.

[214] Despite all this, the Board may find the report inadmissible, even if the evidence before it is de novo. The witnesses returned to testify to the same facts set out in the report. Mr. Zonnon and Mr. Koutou were prepared to testify against the grievor. The grievor submits that their testimonies are not credible and are unreliable. They are there to incriminate the grievor.

[215] The grievor made access-to-information requests. He could not obtain several documents. That is why the grievor argued that it was difficult to prove that the termination was predetermined. As I stated in the previous paragraphs, several times during the hearing, I pointed out to the grievor that he could make a request for the disclosure of information or documents at any time. The grievor did not avail himself of that right at any time.

[216] The grievor alleges that the employer was in in bad faith from the start of the investigation, given the evidential weight of Exhibit G-9, about the meeting with the RCMP. In his opinion, Exhibit G-9 sets out that the employer obtained evidence from the RCMP that could “[translation] incriminate” the grievor. The employer was not neutral at all during its investigation. However, the grievor submits that if it is taken for granted that hearings before the Board are hearings de novo, then the testimonies of Mr. Zonnon and Mr. Koutou as to the grievor’s involvement in the fraud are unreliable and not credible.

[217] The grievor is accused of sending several emails containing privileged information and of snooping. However, the employer did not adduce any of those emails as evidence to support this statement.

[218] Mr. Zonnon said that he had no personal interest in testifying against the grievor. The grievor disagrees with that statement. Mr. Zonnon’s admission in Exhibit G-6, which outlines Mr. Zonnon’s release conditions, was in recognition of debts, grant amounts, and a condition that the grievor be sentenced.

[219] The employer did not adduce any evidence that the grievor completed the grant applications. The employer alleges that the grievor prepared false letters of support. The analysis of the files and the properties of the documents produced by Mr. Zonnon and Mr. Dussault contradict each other. Ultimately, Mr. Zonnon’s production of false documents clearly demonstrated that it was for the purpose of incriminating the grievor.

[220] The employer did not prove that the cookbook document was from the grievor or his computer. The employer requested an expert report. The experts carried out the detailed work with all the parameters, with the result that the retrieval did not lead to the conclusion and the assumption that the document was from the grievor’s computer. With respect to the fictional letters from Sophie Desjardins, Mr. Zonnon testified that the grievor was the author of the two letters. The letters were very poorly written, and the grievor knows how to write letters. The grievor submits that the evidence demonstrates that Mr. Zonnon is the author of these letters.

[221] Both Mr. Koutou and Mr. Zonnon said that they shared grant money with the grievor. Mr. Zonnon’s entire credibility is undermined in that respect, as the grievor testified that he was out of the country on the dates mentioned in the statement. That error is fatal. The Board cannot rely on that statement. It is insufficient to constitute evidence on a balance of probabilities.

[222] Mr. Koutou’s credibility issue is that the employer did not apply for the grant. Mr. Koutou did not recall the timing of this grant application. Mr. Koutou said that he shared two cheques with the grievor. No transactions were shown. These are all things that the employer had to demonstrate to provide serious evidence.

[223] The grievor submits that the employer exceeded its powers of investigation and that it committed abuse during the investigation and in how it treated the grievor with respect to his fundamental rights and freedoms. The employer knew that it could not do that. Ms. Addison-Roy informed senior management of all her actions in the administrative investigation and her cooperation with the RCMP. She received accolades and congratulations for her actions. The grievor submits that it is scandalous for an employer to behave that way and for the federal government to conducts its investigations that way. He adds that it is scandalous for Canadian citizens.

[224] The grievor referred me to Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 70, with respect to the employer’s discretionary powers. Investigation powers must be used in good faith. The grievor pleads to an abuse of authority and the employer’s jurisdiction. He refers to Exhibit G-26. The employer was in bad faith and dishonest; it had no authority to investigate the grievor’s credit. The investigator asked to bypass the law to conduct the credit check of the grievor. That is tantamount to an abuse of authority. Exhibit G-31 is evidence that the employer attempted to find mechanisms to obtain evidence to incriminate the grievor.

[225] In Exhibit G-10, the grievor alleges that Mr. Dussault put a blatant strategy in place to obtain evidence against the grievor. Mr. Dussault asked Mr. Zonnon’s spouse to go to the bank to take back the grant cheque involving the grievor and his spouse. That demonstrates the employer’s poor conscience. According to the grievor, the employer disregarded the grievor’s fundamental rights and freedoms. Following the grievor is proof of it. The Privacy Commissioner allowed the complaint in Exhibit G-41.

[226] Regardless of the investigation report’s contents, the manner and intent in which the employer obtained evidence against the grievor are illegal. Mr. Lefort and Ms. Bélisle’s decision is based on Mr. Dussault’s report. According to the grievor, all the RCMP prepared all the witnesses; the employer’s evidence was contaminated and is inadmissible. The bulk of the report is hearsay. The employer was free to call all the witnesses to prove the allegations and to allow the grievor to cross-examine them. The investigation report does not contain any analysis of the facts. There is only a compilation of facts. The report does not contain any challenges to the facts as presented by the grievor.

[227] The employer criticizes the grievor for failing to provide sufficient information. The grievor made oral and written submissions in addition to the information shared with Mr. Lefort. Mr. Lefort did not provide any evidence of his treatment of the oral and written submissions. Mr. Lefort stated that the grievor’s observations were of minor errors and that he did not take them into account. The report as a whole, the entire investigation, all the evidence, and the entire process must be set aside.

[228] The grievor consulted the Ethics Commissioner. He said that he would not hesitate to report his spouse in the event of embezzlement in his grant applications. The employer refused to consider that evidence.

[229] With respect to snooping, the grievor admitted that he could be led to gain unauthorized access to the people he knew. The information was not privileged. The grievor did not understand his obligations under the Code of Conduct and unauthorized access. However, the grievor now understands the need to avoid snooping and engaging in any unauthorized access.

[230] The grievor referred me to McRaeJackson v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2004 CIRB 290 at para. 76, with respect to determining the existence of misconduct. In this case, the employer had to ensure procedural fairness. In this case, there is a fear of bias by the employer. The employer had an obligation to comply with procedural fairness when there is an impact on a person’s life. If there is evidence of a reasonable apprehension of bias, the procedure cannot be repaired, and the decision must be set aside.

[231] In Exhibit G-22, it can be seen that from the start, the employer was biased. The employer’s opinion of the grievor from the start can be seen. Certainly, Ms. Addison-Roy was going to recommend terminating the grievor. She deprived the grievor of all the rules of natural justice procedure. She even tried to influence everyone involved.

[232] The other offences related to snooping, as a whole, must be invalidated for lack of procedural fairness. The termination is disproportional, considering the snooping allegations. The grievor referred me to Mercer, in which the grievor received only two days’ suspension for snooping.

[233] The grievor wishes to be reinstated in his position, with all the salary retroactive to the termination. He wishes that all his rights and losses be adjusted, calculated, and restored since his departure. Even with the Board hearing de novo, because of the employer’s bias throughout the process, the Board hearing cannot remedy the situation or repair the impact on the grievor. The failure to observe the grievor’s rights and freedoms cannot be remedied. The grievor requests that the termination be annulled and that all the corrective measures set out in his grievance be granted.

C. The employer’s reply to the grievor’s arguments

[234] The case law that the grievor raised is not relevant to the issues before the Board. The circumstances at issue are a termination — an end of employment in the public service, for misconduct. The only circumstances in which that case law may be relevant is if the Board’s impartiality is challenged or the adjudicator is accused of bias. At no time did the grievor make any accusations that the adjudicator hearing the case would have been biased. That is the only way that case law could apply.

D. Analysis

[235] I agree with the grievor that the Board must consider the validity of the termination in the light of the evidence before it, considering the legal and factual constraints of the termination. The parties correctly submitted that the applicable standard of proof is the balance of probabilities, as confirmed in F.H. v. McDougall, 2008 SCC 53. As the Supreme Court of Canada wrote 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 set out 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, it was the employer’s responsibility to demonstrate that the evidence was “clear, convincing”, that the grievor breached the Values and Ethics Code, snooped into the government’s Employment Insurance databases, and participated in a fraud of the Seniors Program.

[236] The grievor questioned the quality of the investigation conducted by Ms. Addison-Roy, Mr. Dussault, and Ms. Brisson. He argues that in Exhibit G-22, it can be seen that from the beginning of the investigation, the employer was biased. In his opinion, the employer decided that the grievor was guilty from the start. Certainly, Ms. Addison-Roy was about to recommend that the grievor be terminated. The grievor submits that she deprived him of all the rules of procedure of natural justice throughout the administrative investigation. She even tried to influence everyone involved. The grievor objected to the findings of fact in the investigation report. He maintained that his witnesses and his version of the facts were not included in the report. The grievor argued that the employer’s investigation was biased and that the outcome was predetermined. He criticizes the employer for collaborating with the RCMP in the investigation. He submits that he did not have the opportunity to obtain all the necessary documentation to defend himself. For all these reasons, the grievor submits that the investigation report should be set aside and that therefore, the termination should be overturned.

[237] As mentioned earlier, hearings before an adjudicator are hearings de novo; any prejudice or inequity caused by a procedural problem during the administrative investigation is remedied by the grievance hearing (see Maas v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123 at para. 118; Pajic v. Statistical Survey Operations, 2012 PSLRB 70; and Tipple, at para. 2). Therefore, any irregularities in the investigation conducted by Ms. Addison-Roy, Mr. Dussault, and Ms. Brisson have minimal consequences for the circumstances surrounding the grievor’s termination. The grievor was given the opportunity to present a full and complete defence before the Board. I repeatedly reminded the grievor of his right to request the disclosure of all information and documents that could be relevant to his grievance. The grievor did not avail himself of this right. The grievor did not provide any details about the witnesses whom he wanted to call and was prevented from calling; he simply chose to testify himself and to call the employer’s witnesses.

[238] Although I share the grievor’s opinion that the report is poorly written and that it contains many negative opinions about him, the grievor did not adduce compelling evidence that the outcome was predetermined, that favourable evidence had been excluded, or that the RCMP was at the heart of the report. I reject the grievor’s position that the employer knowingly sought information to incriminate him and to share that evidence with the RCMP. There is nothing inappropriate about Mr. Bédard contacting the RCMP to alert it to the facts that they had gathered during the initial investigation that Mr. Hobeila and Mr. Guillemette conducted. There is also nothing inappropriate in the collaboration and the information exchange between Mr. Dussault and Ms. Brisson with the RCMP’s investigation officers. It is an administrative investigation in the context of a termination, not a criminal investigation. The employer correctly exercised its right to collaborate with the RCMP in its administrative investigation. In addition, the grievor failed to meet the burden of demonstrating that a jurisdictional error or a lack of delegation of authority to the employer’s investigators occurred in the fraud investigation. The grievor did not submit any case law to support his claim.

[239] However, I find troubling the fact that Ms. Addison-Roy tried at least twice to find a way to overstep the bounds with respect to investigating the grievor’s credit, in an attempt to revoke the grievor’s reliability status. Despite Ms. Addison-Roy’s efforts, the grievor’s reliability status was not revoked, and the employer has followed the applicable standards. Ms. Addison-Roy was unable to convince those responsible for the reliability status to overstep the legal bounds. Mr. Comeau and Mr. Jacques followed the policy to the letter, and all the grievor’s rights with respect to his reliability status were respected Although the employer conducted a biased investigation, and the conduct of certain of its investigators was reprehensible, this matter does not concern them. Their integrity is not being questioned. At issue is the grievor’s termination grievance.

[240] With respect to the grievor’s argument that the employer supposedly followed him, I am not convinced. The grievor was observed at home for the purpose of serving him a letter. The alleged following was not intended to confirm that he was guilty of the allegations against him; it was simply to serve a letter from his employer.

[241] The grievor submits that his rights under the Charter were violated, so the decision to terminate him is invalid. He did not submit any case law to support his claims. He simply argued that his rights were violated, without providing any clarification. The grievor did not demonstrate how the Charter applies in the circumstances of his termination. All the case law that he submitted deals with issues of impartiality accusations in staffing and immigration files. The arguments that Charter rights under s. 7 were violated do not apply in the circumstances surrounding the grievor’s termination. Section 7 of the Charter provides as follows:

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

7 Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.

[242] The protections under s. 7 of the Charter are found under the heading of legal rights and have been raised traditionally in the cases of constitutional, criminal, and immigration files. To my knowledge, they have never been raised in a case involving a termination. No Board case law deals with the application of s. 7 of the Charter in the context of a termination. Although the employer in this case is Service Canada, a federal public service department, it is not a government actor in a relationship with a fellow citizen. It is an employer’s relationship with a unionized employee covered by a collective agreement.

[243] Section 7 of the Charter involves a two-step analysis, as follows. Is there a deprivation of one of the three protected interests, either the life, liberty, or security of the person? Was the deprivation in accordance with the principles of fundamental justice? The second step may be broken down into two more steps, in which it is necessary 1) to determine the applicable principle or principles of fundamental justice, and then 2) to determine whether the deprivation occurred in accordance with those principles (R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 83; R. v. White, [1999] 2 S.C.R. 417 at para. 38; and R. v. S. (R.J.), [1995] 1 S.C.R. 451 at page 479).

[244] There is no independent right to fundamental justice. So, there is no violation of s. 7 if there is no deprivation of the life, liberty, or security of the person (R. v. Pontes, [1995] 3 S.C.R. 44 at para. 47). Since the grievor did not demonstrate how he was deprived of his life, liberty, or security by a government actor, I will not pursue my analysis under this argument. I find that s. 7 of the Charter does not apply in the circumstances of the grievor’s termination.

[245] The balance of the employer’s adduced evidence clearly established that the grievor committed the misconduct set out in the termination letter. The evidence was clear and convincing that the grievor breached the Values and Ethics Code, snooped into the government’s Employment Insurance databases, and participated in a fraud of the Seniors Program.

[246] For the following reasons, I do not find the grievor credible. Usually, the rule in Faryna is invoked when oral testimony is contradictory. It can also be applied to choose between two versions of the same events or to assess the credibility of a witness in general. Page 357 of Faryna states as follows:

… The test must reasonably subject his 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.…

[247] The grievor’s testimony is inconsistent with the rest of the evidence as a whole. The grievor maintains that all the employer’s evidence was collected and presented in the goal of incriminating him. He submits that Mr. Zonnon’s testimony is not credible because Mr. Zonnon had a personal interest in testifying against the grievor, given the release conditions that he negotiated. Once more, I note that the grievor did not submit any evidence to this effect or question Mr. Zonnon on the document.

[248] Mr. Koutou, Mr. Zonnon, and Ms. Tabiou all testified clearly and convincingly that the grievor participated in the fraud under the Seniors Program. I do not find the grievor’s explanations credible that he had never been involved in writing the grant applications or that he had never accepted any amounts of money related to them. The grievor’s testimony that he had never accepted any grant money from Mr. Zonnon because he was out of the country on the dates mentioned in the statement is not credible. The grievor provided no evidence to support his testimony. I agree with the employer that to be credible, it is not enough for the grievor to simply deny the facts and allegations against him.

[249] According to Faryna, for testimony to be credible, it must be logical and possible in the context of all the evidence as a whole. The testimony must be consistent with the rest of the evidence. The grievor’s testimony as a whole is inconsistent with the rest of the evidence. The evidence clearly established that the grievor was involved in writing and submitting the grant applications. According to the testimonies of Mr. Zonnon, Ms. Tabiou, and Mr. Koutou, the grievor was involved in preparing the applications, providing advice and encouragement, and accepting amounts of money from grant applications that Service Canada approved.

[250] The testimonial and documentary evidence establish the grievor’s involvement in creating shell organizations to obtain grants for his personal benefit. The employer adduced written and oral evidence of the fraud incidents. Among the many examples in the summary of the evidence, the following are the most glaring:

· Fraud no. 1 (7260169) on the Association’s behalf in the amount of $18 000, proved by Ms. Tabiou and Mr. Zonnon. Mr. Zonnon testified that the grievor completed the grant application and provided the required information. Mr. Zonnon provided an amount of $5000 and a second amount of $2000 or $3000 to the grievor as payment for his share of the grant application. Mr. Zonnon and the grievor both prepared a false activity report; no activity took place.

· Fraud no. 2 (9152208) on the Association’s behalf in the amount of $24 000, proved by Mr. Zonnon and Ms. Tabiou. Mr. Zonnon confirmed that the grievor signed the letter of support. Ms. Tabiou confirmed that the grievor participated in the grant application. She explained in detail the grievor’s efforts to convince her not to return the cheque. Ms. Tabiou made it clear that the grievor was always involved in the Association’s grant applications. Mr. Zonnon confirmed that the cheque was shared with the grievor and his spouse.

· Fraud no. 3 (8989055) on the Social Development Club’s behalf in the amount of $22 175, proved by testimony. It was a new organization created at the grievor’s request, and the money was split between Mr. Zonnon and his spouse, and the grievor and his spouse. Mr. Zonnon made it clear that they created the new association with the goal of pocketing the grant money and with no intention to organize activities for seniors.

· Fraud no. 4 (9097296) on the Social Development Club’s behalf in the amount of $22 950. Mr. Zonnon testified that he shared the money with the grievor and his spouse.

· Fraud no. 5 (010319622) on the Seniors’ Social Development Group’s behalf. Mr. Zonnon confirmed that the grievor was the mastermind of the organization and that he personally handed grant money to the grievor.

· Mr. Koutou testified clearly and convincingly about his involvement and that of the grievor in grant applications in the amount of $21 600 and in the amount of $20 500.

[251] The testimonies of Mr. Zonnon, Ms. Tabiou, and Mr. Koutou were clear and unequivocal. The grievor participated in developing the plans and creating forged letters to support the grant applications, and he was involved in the scheme to deceive Ms. Tabiou when she objected to filing fake photographs and false reports to demonstrate to Service Canada that the activities had taken place, to conform with the grant applications. Mr. Koutou’s testimony is clear and convincing that the grievor was involved in a fraud scheme. The grievor and Mr. Koutou shared money from false grants. Mr. Koutou had nothing to gain from publicly testifying to his involvement in the fraud and accepting the money from false grants with the grievor. On the contrary, he had much to lose. Although Mr. Zonnon’s and Ms. Tabiou’s testimonies had certain contradictions about the dates and what she knew or had said, there was no contradiction and no doubt that the grievor was involved in the fraud; i.e., by writing grant applications, writing forged letters of support, and accepting grant money for his personal benefit.

[252] In addition, I note that the grievor denied that he knew about the $24 000 grant application, although nonetheless, he admitted that he travelled from Montréal to Gatineau to meet with Ms. Tabiou, to convince her to move ahead with the grant application and to keep the cheque. The grievor’s testimony is contradictory and not credible. The evidence as a whole is clear and unequivocal; the grievor received money from false grant applications and personally profited from his conduct. The alleged misconduct goes to the core of his assigned duties at Service Canada. The grievor’s conduct is not an isolated incident; the alleged actions took place over several years. I agree with the employer that the grievor’s actions were premeditated. This is not a case of a spontaneous lack of judgment.

[253] The grievor claimed that he had a poor understanding of the Values and Ethics Code with respect to the information that he could disclose to the people concerned by their Employment Insurance files and his involvement in the assessment of his spouse’s grant application. I do not find his explanation credible. During the administrative investigation, the grievor replied that he had not been involved in preparing grant documents for the Seniors Program. The evidence clearly established that the grievor was involved in screening his spouse’s grant file. Mr. Bédard testified convincingly that the grievor was involved in screening application number 533187 from his spouse in 2007, and the grievor did not contradict his testimony. The grievor also acknowledged that he had read the Values and Ethics Code on his hiring and that he completed training on it in 2011. Therefore, he was aware of the snooping policy and the Values and Ethics Code. The Office of the Integrity Commissioner’s opinion in 2011 as to his spouse’s involvement in the associations and in the grant applications does not confirm the grievor’s testimony in that respect. The grievor failed to state in his application to the Commissioner that he had been involved in screening his spouse’s application. Service Canada’s Values and Ethics Code and internal rules provide that employees who know an applicant should not take up the assessment of the application, let alone be an applicant in the background.

[254] This defence completely ignores the fraud allegations against the grievor and his involvement in writing the forged letters of support that were proven against him. Fraud in itself is a breach of the Values and Ethics Code. Furthermore, by his own admission, the grievor accessed without authorization and snooped in Service Canada’s databases in files that were not his. That misconduct alone justifies the termination. The Board’s case law is consistent in this respect. Mercer, in which the grievor received a two-day suspension, does not establish that this disciplinary action is proportional to the misconduct but instead that it was not an excessive measure justifying the Board’s intervention. The Board will intervene to reduce a disciplinary measure only in circumstances in which it is excessive and therefore not proportional to the misconduct.

[255] By being involved in the fraud with Mr. Zonnon and Mr. Koutou, and by trying to influence Ms. Tabiou to become involved in the fraud, by accessing without authorization and snooping in Service Canada’s databases in the files of people whom he knew but that were not his files, the grievor breached the Values and Ethics Code. The bond of trust has been irreparably broken. The risk of recidivism is too high, and the grievor’s actions are completely incompatible with a program officer’s duties. Therefore, the termination was appropriate, in all the circumstances.

[256 ] For all the above reasons, the Board makes the following order: