Judge Rejects Border Services Managers’ Request for Review of ArriveCan Report That Led to Suspensions

Canada's ArriveCAN app log in screen is seen on a mobile device in Ottawa on Feb. 12, 2024. (The Canadian Press/Adrian Wyld)

A federal judge has rejected a request from two former Canada Border Services Agency employees for a judicial review of an investigator’s report that led to their suspensions over allegations of misconduct related to the ArriveCan app.

Antonio Utano and Cameron MacDonald, who were previously employed by the Canada Border Services Agency (CBSA) and responsible for the initial execution and delivery of the ArriveCan application, were both suspended from their government positions without pay on Jan. 11 over misconduct allegations. They have not been charged with any crime to date.

The men had asked the court for a judicial review of the preliminary report that led to their suspension, and an interim injunction on the report until the review could be completed.

“I understand the applicants’ concern regarding their careers, reputations, dignity and livelihoods,” wrote Justice Russel Zinn of the Federal Court, as first reported by Blacklock’s Reporter. However, he said, there were “no exceptional circumstances warranting this Court to overstep its jurisdictional boundaries to intervene.”

Justice Zinn added that the application for judicial review was “premature” as he said the men had not exhausted all available grievance processes.

“In light of this disposition, the Applicants’ motion is moot and their underlying application for judicial review must be dismissed,” said the court decision.

Mr. MacDonald and Mr. Utano have claimed their suspension was as part of a “campaign of intimidation” meant to silence their criticism, and alleged they were being scapegoated by CBSA executives. On Feb. 16, they had asked that a federal judge rescind a 2023 “Preliminary Statement Of Facts” report by CBSA that led to their suspensions.

While that 360-page document has never been made public, Conservative MP Larry Brock read excerpts and summaries of it into the record of the government operations committee on Feb. 5.

Citing the report, Mr. Brock said it alleged “serious employee misconduct, so serious that you [the CBSA] required the RCMP to investigate at least two criminal charges: fraud and bribery.” Additionally, he said the report alleged an ArriveCan contractor “solicited a bribe.”

Mr. Brock said the confidential records he obtained suggested that four years’ worth of “relevant, sensitive emails” related to ArriveCan were deleted by an agency manager between 2018 and 2022. “The approximate amount of those emails is roughly seven gigabytes or 1,700 emails,” he said.

The $59.5 million ArriveCan app, which was used to check the COVID-19 vaccine status of travellers, has fallen under public scrutiny in the past year following allegations of breaching standard procurement practices and rampant overspending. The RCMP is currently investigating allegations of fraud associated with the development of the app.

Auditor General Karen Hogan’s February report on ArriveCan found that Canadians did not get value for money for the app, and called the bookkeeping around the app, “the worst I had ever seen.” She also said the $59.5 million cost her office estimated for the app could not be determined with certainty.