CBSA President Erin O'Gorman appears at a House of Commons standing committee on Public Accounts on Parliament Hill, in Ottawa, on Feb. 13.Sean Kilpatrick/The Canadian Press
Two senior public servants who were suspended amid an internal investigation into contracting misconduct allegations at the Canada Border Services Agency have asked a judge to shut down that probe – which they say is unfair and biased – and order an independent third-party review.
Cameron MacDonald and Antonio Utano filed the notice of application for judicial review in Federal Court Friday, days after the Auditor-General delivered a report on federal outsourcing at the CBSA that decried a deficit in basic management and contracting practices.
The pair had worked together at the CBSA on the development of the ArriveCan app, which has also been investigated by the Procurement Ombudsman and two parliamentary committees. The initial $80,000 cost to build the first version of the app ballooned to about $59.5-million because of numerous amendments and extensive outsourcing costs for the previously mandatory pandemic travel tool.
The CBSA investigation is focused on allegations brought forward by Montreal software company Botler in November, 2022. While Botler was not involved in the ArriveCan work, the company worked with some of the same contractors and public servants who did work on the app. The company’s founders alleged their work experience was inflated in contracting forms and questioned what they viewed as cozy ties between public servants and private contractors.
After Botler filed its complaint, CBSA president Erin O’Gorman requested the internal investigation and also referred the allegations to the RCMP, which has said it is investigating.
By that time, Mr. MacDonald had become an assistant deputy minister at Health Canada and Mr. Utano was director-general at the Canada Revenue Agency. The men were suspended without pay in January, just a few weeks after Ms. O’Gorman sent the heads of their departments copies of a document called a preliminary statement of facts written by agency internal investigator Michel Lafleur.
In their court filing, Mr. MacDonald and Mr. Utano say Mr. Lafleur’s process is unfair because they were not interviewed before the report was written, nor have they been given an opportunity to review the allegations against them.
They say the preliminary report is 360 pages and they received redacted copies on Jan. 29.
“The allegations set out there-in are spurious, scandalous, and clearly designed to discredit the applicants with unsubstantiated and untested accusations of such magnitude and severity that any reader could only be left to draw conclusion of malfeasance and potential criminal activity,” the court filing says. “While the PSFs [Preliminary Statement of Facts] are categorized as ‘preliminary,’ they are written to convey a sense of conclusion and finality. The intended effect was achieved, as based on these, the applicants’ security clearances were revoked, and based on the severity of the accusations, they were given the extraordinary penalty of being suspended without pay.”
The notice of application for judicial review names Public Safety Minister Dominic LeBlanc, the minister responsible for the CBSA, as the respondent.
The CBSA provided Mr. Lafleur’s report in confidence to members of Parliament on the government operations committee, which has held months of hearings into ArriveCan, the Botler allegations and broader issues related to outsourcing. The sharing of that report has derailed the committee’s work.
Liberal MP and committee vice-chair Majid Jowhari described the contents of the report as “scary” earlier this month and warned that further public hearings on the matter would amount to a disservice of justice. Members of the committee continued to debate a way forward Tuesday afternoon without resolution.
Lawyer Chris Spiteri, who filed the application on behalf of Mr. MacDonald and Mr. Utano, has previously told The Globe and Mail that the two men believe their suspensions are punishment for criticizing their superiors’ handling of the ArriveCan file during public committee testimony in November.
Mr. MacDonald accused former CBSA vice-president Minh Doan of threatening him and lying about who made the decision to hire GCStrategies to work on the ArriveCan project. Mr. Doan has denied Mr. MacDonald’s version of events. GCStrategies is a two-person IT staffing company that has received $19.1-million for work on ArriveCan but does not do any IT work itself.
The application for judicial review includes criticism of Botler and alleges the company was seeking a contract from the CBSA in exchange for participation in an investigation.
In an e-mailed statement Tuesday responding to the Federal Court file, Botler co-founders Ritika Dutt and Amir Morv said they have always advocated for a “clean” contracting arrangement that was not connected to GCStrategies, nor Coradix or Dalian, two other IT staffing companies that were also involved in the layers of subcontracting.
They said this was made clear to Mr. Utano in a September, 2021, e-mail. They provided an e-mail showing another CBSA official responded to Botler – copying Mr. Utano – stating that a “brand new contract” was an option, though that did not ultimately occur.
“Botler has participated in, provided evidence for and otherwise fully co-operated with all ongoing investigations into the matter with no contracts in place. Any suggestions otherwise are completely and utterly false,” they said.
The Globe reported in October that Botler was first approached to conduct contract work for the CBSA in late 2019 by Kristian Firth, managing partner of GCStrategies, who said he was reaching out on behalf of Mr. MacDonald.
That led to more than a year in which Botler interacted with Mr. Firth, Mr. MacDonald and others at the CBSA to test their software as an option for the agency related to addressing sexual harassment. At the same time, Mr. Firth introduced Botler to officials throughout government in an effort to have Botler’s product acquired for the entire public service.
The Globe reported that Botler was surprised to find out in early 2021 that its work would not be funded as a direct contract with the agency, but rather through extensive subcontracting. Botler said it received only about $112,000 and had been expecting more.
Botler also said Tuesday that the recent reports by the Auditor-General and the Procurement Ombud into ArriveCan have independently validated some of their reported concerns.
Auditor-General Karen Hogan reported last week that she found a “glaring disregard” for basic management practices related to the app.
She also found that GCStrategies was directly involved in setting narrow terms for a $25-million contract it ultimately won.
The federal government announced last week that GCStrategies is no longer eligible to participate in government tenders.
Requests for comment on the Federal Court filing sent to the Public Safety Minister and the CBSA were responded to by border agency spokesperson Guillaume Bérubé, who declined to comment directly.
“As our internal investigation is ongoing, the release of information into the public sphere would be prejudicial to the integrity of the investigation,” he said in an e-mail. “As this matter is subject to ongoing litigation, we have no comment at this time.”
Meanwhile, two Conservative-chaired committees – government operations and public accounts – have scheduled several ArriveCan-related hearings this week even though Parliament is on recess.
On Tuesday afternoon, Conservative MPs sought support for a motion to subpoena Mr. Firth and Darren Anthony of GCStrategies to appear for a third time, with the possibility of having them arrested by the Sergeant at Arms if they refuse.
Bloc Québécois MP Julie Vignola expressed concern with invoking what she described as a “nuclear” option. Liberal MPs repeated their concerns that the committee’s work risks interfering with investigations by the CBSA and the RCMP. The meeting ended without a decision.