Two senior public servants linked to the controversial procurement process behind Ottawa’s costly ArriveCan app have lost their bids to have the Federal Court overrule internal grievance findings related to allegations of misconduct against them.
Justice Avvy Yao-Yao Go issued the decisions Monday after two days of public court hearings in March.
Cameron MacDonald and Antonio Utano worked together at the Canada Border Services Agency as senior officials responsible for IT matters in 2020 when the agency launched the app for cross-border travellers at the onset of the pandemic.
Mr. MacDonald is now an assistant deputy minister at Health Canada and Mr. Utano is a director-general at the Canada Revenue Agency.
Early last year, the CBSA prepared a draft Professional Standards Investigation Report that, according to Monday’s rulings, contained “findings regarding several misconduct allegations” involving each of the two men.
The allegations are not detailed in the court’s decisions and the CBSA’s investigative findings have never been made public.
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The public servants’ relationships with private IT contractors have been under scrutiny amid questions about how the agency used outside companies to build ArriveCan, whose initial $80,000 expense grew to in excess of $56-million in the course of more than 70 updates.
The two men launched separate grievances last year alleging that the CBSA’s internal investigative process was unfair. They argued that they were not provided with adequate documentation by the CBSA. They also said the process for responding to allegations was insufficient. Mr. MacDonald and Mr. Utano have called for the investigation report to be dismissed in favour of a new review by a fully independent body.
Both grievances were unsuccessful. The men sought judicial reviews of those grievance decisions by the Federal Court, which dismissed those requests Monday. The ruling could clear the way for the decisions to be shared with their current employers, who could choose to act on them.
“I find the applicant fails to discharge his burden of demonstrating that the decision was unreasonable. I therefore dismiss the application,” Justice Go wrote in her MacDonald decision. A similar ruling was issued in response to Mr. Utano.
Mr. MacDonald is ordered to pay the respondent, the federal government, $22,268.70 in legal costs, while Mr. Utano is required to pay $19,440.
In her rulings, Justice Go said she is only focusing on whether the grievance decision should be dismissed.
“I wish to emphasize that my decision does not speak to the merits of the CBSA’s allegations against the applicant, nor the reasonableness of the draft PSI Report itself,” she wrote in the MacDonald ruling, adding that there will be other opportunities for the two men to challenge the CBSA’s investigation.
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Chris Spiteri, the lawyer representing Mr. MacDonald and Mr. Utano, said during the hearings in March that his clients will face disciplinary consequences if the final reports into their conduct are sent to their current employers.
In a statement Monday, Mr. Spiteri emphasized the fact that the ruling did not comment on the substance of the allegations at hand.
“Today’s Federal Court decisions were about procedure, not merits. The decisions expressly state that they do not determine whether the allegations are true, nor do they decide the merits of CBSA’s case,” he said.
“The real issues, how and why this investigation was initiated, conducted, and whether they were made scapegoats for broader failures, remain unresolved. This matter is far from over. The central questions in this case remain unanswered.”
CBSA spokesperson Guillaume Bérubé said in an e-mail Monday that the agency welcomes the Federal Court decisions and is taking the necessary time to review them.
“As such, there are no further comments at this time,” he said.
A 2024 report by the Auditor-General found a “glaring disregard” for basic management practices at the CBSA as the ArriveCan project’s cost escalated.
After receiving a detailed written complaint from an IT company in 2022, the CBSA launched an investigation into the agency’s interactions with private contractors. The agency also referred the complaint to the RCMP, which has said as recently as early this year that its investigation continues.
Judge blocks CBSA from sharing findings of probe into former official’s ties to ArriveCan contractor
The Globe and Mail first reported on the RCMP investigation in 2023. The Globe also reported on the nature of the complaint that had been raised by the IT company – Botler AI. While Botler did not work on ArriveCan, it worked on another project involving Mr. MacDonald, Mr. Utano and Kristian Firth, the managing partner of GCStrategies, the two-person IT company that the CBSA selected to lead the ArriveCan app project.
Botler had raised concerns about the interactions between the CBSA officials and Mr. Firth and also alleged that it witnessed improper contracting practices.
The CBSA’s investigation into the allegations led to a draft report and ultimately a final report. Neither report has been made public, but parts of the findings have been referenced in documents filed in Federal Court or mentioned in House of Commons committee hearings.
During a 2024 update to a Commons committee, CBSA president Erin O’Gorman told MPs that the agency had found a pattern of “persistent collaboration” between “certain officials” and GCStrategies.
While not naming any officials, Ms. O’Gorman said at the time that the agency’s initial review of documents “show efforts to circumvent or ignore established procurement processes and roles and responsibilities” and that what the agency had found to date “is not okay.”
Mr. MacDonald and Mr. Utano have maintained throughout that they acted appropriately and that the border agency’s review into their activities has been procedurally unfair.
They have also alleged that they are being punished for contradicting their superiors during Commons committee hearings about the events related to ArriveCan.
Monday’s rulings note that Mr. Utano filed complaints with the Public Sector Integrity Commissioner in 2024, who has agreed to investigate whether the CBSA’s conduct amounts to retaliation.
During the March hearings, Mr. Spiteri said Health Canada and the CRA’s initial reaction to preliminary allegations indicate that his clients will face consequences if their current employers receive the final report from the CBSA.
“There really can be no question that there will be a disciplinary response if the court doesn’t intervene,” he said in March. Mr. Spiteri said that view is supported by how those departments responded in early 2024 to an initial draft report, called a preliminary statement of facts.
“The response to the preliminary statement of facts was essentially capital punishment in the employment world,” he said. “They weren’t terminated, but they were suspended without pay and their security clearances were suspended as well – which, incidentally, becomes the first step in termination, because their jobs required security clearance.”
Their pay was later restored.
The federal government was represented in court by Elizabeth Richards, chief general counsel for the Department of Justice.
“The applicants’ allegations of bias or institutional bias and conflict of interest before the grievance authority and before this court today are based on mere suspicion, pure conjecture and insinuation,” she said during the March hearings.
“The record before the grievance authority and before you today also amply demonstrates that the applicants were afforded a high level of procedural fairness throughout.”