Federal Court rejects bid by two suspended public servants who worked on ArriveCan to have investigation shelved

The Federal Court has rejected a request by two senior suspended public servants who worked on ArriveCan to step in and block an internal investigation by the Canada Border Services Agency into their conduct.

Federal Court Justice Russel Zinn ruled this week that the request to the court was premature given that the two men have yet to exhaust existing avenues for filing internal complaints.

The investigation is one of more than a dozen that have been launched with connections to the ArriveCan app for international travellers, which cost $59.5-million and put government contracting practices under scrutiny.

Cameron MacDonald and Antonio Utano were senior officials at the border agency when the ArriveCan app was developed and launched at the onset of the COVID-19 pandemic. They asked the court to shelve the agency’s investigation on the grounds that it is biased, unfair and an act of retaliation against them for publicly criticizing agency leadership.

Their interactions with GCStrategies managing partner Kristian Firth, whose two-person company was the main contractor on the multimillion-dollar project, are at least part of what is under review by the border agency’s professional integrity division.

The border agency’s investigation was launched in late 2022 after it received allegations of misconduct from Montreal software company Botler, which performed contract work for the agency. Botler’s work was not related to ArriveCan, but its two co-founders interacted with Mr. Firth, Mr. MacDonald and Mr. Utano. Botler raised concerns about cozy ties between contractors and public servants and also said other contractors submitted significantly inflated résumés to the government.

The agency sent the allegations to the RCMP, which has said it is investigating. The RCMP searched Mr. Firth’s home last month as part of that investigation.

The RCMP has also said it is investigating issues related to ArriveCan, after the release of Auditor-General Karen Hogan’s February report on the government’s management app, which raised numerous concerns about how the cost of the app grew.

CBSA investigators produced an interim report, called a preliminary statement of facts, which has not been made public but was shared by the agency in confidence with members of Parliament on the government operations committee, which is holding hearings into ArriveCan and federal outsourcing.

At a committee meeting in February, Liberal MP and committee vice-chair Majid Jowhari described the report’s contents as “scary” and urged MPs not to pursue the allegations in public as it could amount to a disservice to justice.

Justice Zinn said the two men should first formally grieve the investigative process with the CBSA before coming to the court.

The judge said the claims from the two men that the CBSA’s grievance process is also biased are without merit.

“There is no evidence before me to suggest that the available grievance process is not adequate and effective,” he wrote in a ruling released Monday.

As for the agency’s investigation, he said there is insufficient evidence to conclude the government’s process is unfair.

“The applicants principally rely on the chronology of the investigation to support their broad assertions of bias and deliberate harm against them by the respondent, repeating often that the timing of the investigation is ‘suspicious.’ Respectfully, this is not enough to ground their allegations,” the ruling states.

Chris Spiteri, the lawyer who represented Mr. MacDonald and Mr. Utano in the Federal Court case, said it was significant that the court indicated that the men have the right to grieve the preliminary statement of facts before the border agency investigation is concluded.

“This application was dismissed on administrative grounds, because it was brought too early. However, the Court noted that after the applicants have exhausted the available grievance mechanisms, they could return advancing the same grounds raised in this application,” he said.

Mr. Spiteri said the two men have been successful in having their pay reinstated.

Mr. MacDonald is now an assistant deputy minister at Health Canada and Mr. Utano is a director-general at the Canada Revenue Agency.

Documents filed in court as part of the case include a Nov. 24, 2023, letter to Mr. Utano from Mari-France Leduc, the CRA’s acting manager of the professional integrity division, informing him that a preliminary review of Botler’s allegations determined that a formal Professional Standards Investigation would be initiated to investigate whether he had engaged in actions contrary to the CBSA Code of Conduct.

Court files also include a Dec. 21, 2023 letter, from CBSA president Erin O’Gorman to Mr. MacDonald, informing him that the agency agreed to pay him $33,222 for legal fees from Spiteri & Ursulak LLP related to preparing for his testimony before the government operations committee.

Ms. O’Gorman states in the letter that she originally approved additional legal fees for Mr. MacDonald related to the RCMP investigation but later changed her position, stating that “additional information now available to me suggests you were acting contrary to the interests of the Crown.” In light of this, she wrote that “I am not satisfied that you meet the eligibility criteria for legal assistance in relation to the RCMP investigation,” adding that she is willing to reconsider if new information emerges.

The letter does not describe this additional information. When asked about the content of the letters, Mr. Spiteri said the allegations against his two clients are baseless and Mr. MacDonald and Mr. Utano have always followed federal ethics rules for public servants.

NDP MP Blake Desjarlais recently criticized that payment for Mr. MacDonald’s legal fees during a committee appearance with Ms. O’Gorman earlier this month.

“That’s an annual salary for many Canadians. That’s a lot of money,” he said.

“I think people have rightfully sought legal advice. There’s a provision for having that paid by the Treasury Board, and that was taken,” Ms. O’Gorman said.

During that May 14 appearance, Ms. O’Gorman said the agency was waiting for the Federal Court ruling before concluding its reviews.