Border agency acted in ‘bad faith’ when it fired employee over $26 million loss: labour board

The Canada Border Services Agency acted “deceitfully” when it fired a woman without a proper investigation — while shielding others from liability — after the border agency failed to collect roughly $26 million in duties, says the federal public service labour board.

“In all, the employer’s egregious conduct in this matter consisted of bad faith,” the Federal Public Sector Labour Relations and Employment Board said in a recent decision.

“The employer deceitfully disguised its failure to conduct a proper investigation, to give it the appearance of due process.”

The case was brought forward by Anne Kline. She was fired by the CBSA in 2018 after the agency accused her of negligence resulting in the loss of about $26 million in import duties it could have imposed against a company.

After a years-long process, the labour relations board (an independent quasi-judicial tribunal) ruled this summer that there was nothing to indicate Kline was negligent — and the CBSA didn’t even mount a proper investigation.

“While the reasons for the failure to investigate remain unclear, it is clear that the employer’s choices were well suited to shielding those other than [Kline] and poorly suited to determining the actual reasons for the timeline in the company’s file,” said the decision.

You can read the decision here.

The board’s decision said the person who led the disciplinary process against Kline, Brent McRoberts, was directly implicated in the file and his actions sidestepped his “potential responsibility or culpability.” 

While Kline ultimately won her grievance, the labour board’s final decision said she was hurt and blindsided by CBSA’s actions and still struggles with her self-confidence years later.

Speaking through her lawyer, Kline declined to do an interview. McRoberts did not respond to CBC’s requests for comment.

The case centres on the CBSA’s handling of a trade file. At issue was whether a company’s products should be reclassified as dairy products — which would increase the duties owed by tens of millions of dollars.

The name of the company in question is blacked-out in the board’s decision. The board said identifying the business and disclosing financial and manufacturing records could “cause it harm.”

Kline urged staff to further investigate complicated file

The border agency ruled two products the company imported in 2011, known informally as “plastic cream,” should be reclassified as dairy products. The dispute centred on technical questions about whether the dairy in plastic cream is integral to the product.

The company argued the proposed classification would have “catastrophic impacts on its business and community,” including bankruptcy, mass layoffs and regional economic slowdowns, along with negative political attention and bad press.

The labour board’s decision said some officials at CBSA believed the company’s response should not change the proposed classification of the product. Kline, director general of the trade programs directorate, felt there were still “information gaps” that made it impossible to make a conclusive call, the board’s decision said.

Kline felt that the agency did not have its “ducks in a row” and urged her team to “dig deeper” into the manufacturing process before advising the head of CBSA of a decision through a briefing note, the decision said. 

But the CBSA was dealing with a crucial deadline. If a verification decision results in duties owing, the CBSA can retroactively collect duties for up to four years before the decision was rendered.

In this case, the agency had until Jan. 1, 2015 to make a ruling if it wanted to apply the full retroactive duties to the company’s imports.

In March 2014, CBSA went through a reorganization and McRoberts was brought in to lead the agency’s merged trade and anti-dumping program. The board said that after McRoberts came on board, Kline was no longer the ultimate authority within the trade directorate. The board’s decision said the merger “effectively diminished her leadership.”

A CBSA employee told the board he attended meetings in 2014 with both Kline and McRoberts, during which the company’s file and outstanding questions about the manufacturing process were discussed.

The labour board said McRoberts testified that he did not recall these discussions. The board called that “highly improbable,” noting it was the topic of a briefing note and it dealt with high-value duties.

McRoberts also testified that for most of 2014, he was unaware of how the critical four-year rule worked.

“Although this assertion is consistent with his overall tenuous grasp of many matters, as well as his spotty capacity for recall, this statement strains credulity; he had been briefed on the file, and it was discussed with him at many points by many players,” the board said.

It also found inconsistencies in McRoberts’ testimony regarding his ability to move the file forward. The board said McRoberts testified that he wanted Kline’s “blessing” before forwarding the briefing note. On cross-examination, the board said, he conceded that he could make those decisions on his own.

‘Something like sabotage’ 

The board said McRoberts testified that near the end of 2014, Kline reported that the company’s file was nearly complete and the CBSA was working with a lab and awaiting more test results.

Ultimately, no decision was made before the new year and the window to apply full retroactive duties closed.

The board said McRoberts blamed the delay in closing the file on “something like sabotage” by Kline and suggested she slow-walked it to protest her job changing.

The board’s decision said the only support McRoberts offered Kline were “vague musings” that they were not on the same page and that she did not “mesh.”

In January of 2015, the decision said, Kline was reassigned to a new team and did not take any of her files or workload with her.

A few months later, she was pulled into a meeting and told her conduct during a meeting at her new job had been unacceptable, the decision said. She was told to go home immediately and “think about what you’ve done,” said the document.

She was not provided with particulars about her alleged problematic conduct and the matter of the lost duties was not discussed, said the decision.

The ‘McRoberts Report’ 

The board said McRoberts spearheaded hiring an outside party to complete a performance report on Kline. The labour board suggested the process was anything but independent and instead “drove toward a predetermined conclusion.”

The board’s decision said the outside contractor reviewed documents McRoberts provided, interviewed witnesses identified by McRoberts and did not interview Kline.

The board said the final product — which it referred to as “the McRoberts Report” — was also edited under McRoberts’ direction.

McRoberts told the third-party reviewer Kline had been under investigation for harassment, bullying and abuse of authority, said the board — allegations that ultimately were deemed unfounded.

The board said there was a “troubling kitchen-sink flavour to the allegations” made against Kline that were later abandoned or withdrawn. 

“This is of deep concern and suggests reasons other than bona fide discipline for removing the grievor from the workplace,” it wrote.

Former CBSA president accused of bias 

Despite what the board called the performance report’s “obvious” flaws, it was used by then-CBSA president John Ossowski to justify firing Kline in March of 2018.

Ossowski, who left the CBSA in 2022,  testified that many of the unfounded claims against Kline also factored into the termination decision, even though they were deemed unfounded by the time he made that decision.

“Ossowski relied on the McRoberts Report, which demonstrated little respect for fair process and no discernible interest in the actual causes of the millions of dollars of unrecoverable duties,” said the board.

When asked why he had not spoken to Kline before firing her, as she had requested, Ossowski “candidly, and without hesitation answered that whatever she might have said, he still would have preferred Mr. McRoberts’ version of events to hers,” said the board’s decision.

“This is the very definition of bias and prejudgment,” it added.

CBC reached out to CBSA to contact Ossowski for comment. The agency said it passed the message on and Ossowski “has no comment to provide.”

CBSA not appealing decision

In her testimony before the board, Kline called the performance report hurtful and gut-wrenching. She said she felt completely  blindsided by her firing, which left her in an “extremely dark time.”

“She felt isolated and demoralized,” said the board’s decision. “She second-guesses herself and struggles to trust others.”

No one other than Kline was formally disciplined in relation to the file, the board said.

Kline won her grievance and was reinstated. She was awarded more than $100,000 in damages, with the board arguing that CBSA’s behaviour “deserves denunciation and punishment.”

The report said she has a new job.

The CBSA said the agency is bound by the Privacy Act and cannot provide information about investigations or disciplinary measures related to specific employees.

“We respect the decision of the Federal Public Sector Labour Relations and Employment Board and will not file an appeal. We will implement its decision,” said spokesperson Caroline Marchildon. 

According to McRoberts’ Linkedin page, he left the federal government to start a consulting firm.