Border Patrol acted in ‘bad faith’ when it fired employee at a loss of more than $26 million: Labor Department

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

“All in all, the employer’s egregious conduct in this matter was bad faith,” said a recent decision from the federal Public Sector Labor Relations and Employment Board.

“The employer fraudulently concealed its failure to conduct a proper investigation to create the appearance of due process.”

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

After a years-long trial, the Labor Relations Board (an independent, quasi-judicial tribunal) ruled this summer that there was no evidence that Kline was negligent – and that the CBSA had not even launched a proper investigation.

“While the reasons for the failure to investigate remain unclear, it is clear that the employer’s decisions were well suited to shielding others [Kline] and ill-suited to ascertaining the actual reasons for the time frame in the company’s file,” the decision said.

You can read the decision here.

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

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

At the suggestion of her attorney, Kline declined an interview. McRoberts did not respond to CBC’s request for comment.

The focus of the case is the CBSA’s processing of a commercial file. At issue was whether a company’s products should be reclassified as dairy products – which would increase the tariffs owed by tens of millions of dollars.

The name of the company in question is blacked out in the board resolution. The board said identifying the company and disclosing financial and production records “could cause harm.”

Kline urged staff to further investigate the complicated file

The border agency decided that two products the company imported in 2011, known informally as “plastic cream,” should be classified as dairy products. The dispute centered on technical questions about whether the milk in the plastic cream is an integral part of the product.

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

The labor board’s decision said some CBSA officials believed the company’s response should not change the product’s proposed classification. Kline, director general of the Trade Programs Directorate, believed there were still “information gaps” that made it impossible to make a final decision, the panel’s decision said.

Kline believed the agency didn’t have its “ducks in a row” and asked her team to “dive deeper into the manufacturing process” before informing the head of the CBSA of a decision through a briefing note, it said in the decision.

But the CBSA was dealing with a crucial deadline. If a verification decision results in duties being owed, the CBSA may retroactively collect duties for a period of up to four years prior to the issuance of the decision.

In this case, the agency had until January 1, 2015 to decide whether to apply the full retroactive tariffs to the company’s imports.

In March 2014, the CBSA was reorganized and McRoberts was appointed to lead the agency’s joint trade and anti-dumping program. The board said that after McRoberts joined, Kline was no longer the top authority within the commercial directorate. The board’s decision said the merger had “effectively weakened its leadership.”

A CBSA official told the board that he attended meetings with Kline and McRoberts in 2014 where the company’s file and outstanding questions about the manufacturing process were discussed.

The Labor Department said McRoberts testified that he did not remember those conversations. The board described this as “highly unlikely” and noted that it was the subject of a briefing note and involved tasks of high value.

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

“Although this claim is consistent with his overall poor understanding of many issues and his patchy memory, this statement strains credibility; “He had been informed about the file and it was discussed with him at many points by many players.” said the board.

Inconsistencies were also noted 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. Under cross-examination, he admitted that he could make these decisions himself, the board said.

“Something like sabotage”

The board said McRoberts testified that Kline reported in late 2014 that the company’s file was almost complete and that the CBSA was working with a laboratory and awaiting further test results.

Ultimately, no decision was made before the new year and the window for full retroactive application of the tariffs closed.

The board said McRoberts attributed the delay in closing the file to “something akin to sabotage” by Kline and suggested she move slowly in protest of her job change.

The panel’s decision said the only support McRoberts offered Kline was “vague reflections,” that they disagreed and that she didn’t “fit together.”

In January 2015, the decision says, Kline was assigned to a new team and did not take her files or workload with her.

A few months later, she was pulled into a meeting and told that her behavior during a meeting at her new job was unacceptable, the decision says. She was told to go home immediately and “think about what you did,” the document says.

She was not provided with details of her alleged problematic behavior and the issue of lost duties was not discussed, the decision states.

The “McRoberts Report”

The board said McRoberts moved forward with hiring an outside party to prepare a performance report on Kline. The labor board said the process was far from independent and instead sought “a predetermined conclusion.”

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

The board said the final product – which it called the “McRoberts Report” – was also issued under McRoberts’ direction.

McRoberts told the independent reviewer that Kline was being investigated for harassment, bullying and abuse of office, the panel said – allegations that were ultimately deemed unfounded.

The panel said the allegations made against Kline had a “disturbing kitchen flavor” and were later abandoned or withdrawn.

“This is deeply worrying and suggests reasons other than genuine discipline to remove anger from the workplace,” it said.

The former CBSA president is accused of bias

Despite what the board described as “obvious” deficiencies in the performance report, it was used by then-CBSA President John Ossowski to justify firing Kline in March 2018.

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

“Ossowski relied on the McRoberts report, which showed little respect for due process and no apparent interest in the real causes of the millions of dollars in unrecoverable tariffs,” the board said.

When asked why he didn’t speak to Kline before firing her, as she had requested, Ossowski replied “candidly and without hesitation that whatever she said, he was still Mr. McRoberts’ version.” of the events over theirs,” Ossowski said of the board’s decision.

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

CBC reached out to CBSA to ask Ossowski for comment. The agency said it forwarded the message and that Ossowski had “no comment to make.”

CBSA will not appeal decision

In her testimony to the panel, Kline called the performance report hurtful and heartbreaking. She said she felt completely blindsided by her dismissal, which left her in an “extremely dark time”.

“She felt isolated and demoralized,” the panel’s decision said. “She questions herself and has trouble trusting others.”

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

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

The report said she had a new job.

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

“We respect the federal Public Sector Labor Relations and Employment Board’s decision and will not appeal. We will implement his decision,” said spokeswoman Caroline Marchildon.

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