Docket: T-439-11
Citation: 2011 FC 1311
Ottawa, Ontario, November 15, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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DAVID WILLIAMS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Integral
to the security of passengers in Canada is the certification of screening
officers, a responsibility of the Canadian Air Transport Security Authority
[CATSA].
[2]
In
this case, the Applicant, as a result of twice failing the X-ray component of
his re-certification test, was decertified for a period of twelve months.
[3]
Due
to the decision-maker’s statutory authority and in recognition of reasonable
findings in the purview of the decision-maker, the Court agrees with the
position of the Respondent.
II. Background
A. CATSA
[4]
CATSA
was established as a federal Crown corporation in April 2002 by the enactment
of the Canadian Air Transportation Security Authority Act, SC 2002, c 9,
s 2 [CATSA Act]. The creation of CATSA was the Government’s response to
the new reality faced by the tragic events of September 11, 2001.
[5]
CATSA’s
mission is to protect the public by securing the air transportation system as
assigned by the government.
[6]
CATSA
is responsible for the provision of key air security services such as pre-board
screening of passengers and their belongings, screening of non-passengers and
the acquisition, deployment and maintenance of explosives detection equipment
at airports.
[7]
CATSA
currently oversees the work of over 6,800 Screening Officers at 89 airports
across Canada. In 2010-2011, CATSA screened over 62 million pieces of baggage,
51 million passengers and conducted 1.2 million screenings of non-passengers
(air crew, maintenance staff, caterers, etc). To deliver it screening mandate,
CATSA contracts with screening contractors who employ Screening Officers.
Aeroguard was the screening contractor at the Vancouver International Airport
(and the Applicant’s employer).
[8]
Pursuant
to the CATSA Act, CATSA is responsible to train and certify screening
officers. Section 8 of the CATSA Act, confers upon CATSA the authority
to establish criteria respecting the qualifications, training, certification,
and performance of Screening Officers. Pursuant to the same section, CATSA also
has the authority to vary, suspend, or cancel a Screening Officer’s
certification, if it determines that the officer no longer meets established
criteria.
B. CATSA’s National Training and
Certification Program
[9]
All
Screening Officers must be trained and certified by CATSA. Screening Officers
require formalized knowledge, training, and specialized technical skills to
perform the screening function. To this end, CATSA has established a
multi-level National Training and Certification Program [NTCP] to ensure that
Screening Officers have the knowledge and skills required to effectively carry
out their duties. As Screening Officers progress through the NTCP, they obtain
“endorsements” in respect of physical search of persons and the operation of
the X-ray equipment.
[10]
Before
entering CATSA’s NTCP, screening contractors pre-select and hire individuals as
Screening Officer candidates. Each Screening Officer candidate must meet the
following regulatory criteria set out in the Canadian Aviation Security
Regulations, SOR/2000-11, and the Designation Standards for Screening
Officers:
a. Be at least
18 years of age;
b.
Be
a Canadian citizen or a permanent resident as defined in the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], and hold a valid employment authorization document;
c.
Understand, speak and write one or both Canadian
official languages, as confirmed by successful testing according to CATSA’s
testing requirements;
d.
Hold a valid medical report stating that they
meet the criteria of the CATSA Screening Officer Medical Examination Report;
and
e. Hold an enhanced Transport Canada security clearance.
C. Applicant’s Training
[11]
In
November 2009, the Applicant entered the NTCP. The Applicant passed the
“Foundations I” course and became certified at that level. The Applicant
obtained the following endorsements: i) pre-screening; ii) physical search of
persons; iii) operation of the walk through metal detector; and, iv) use
offhand held metal detector. The Applicant completed his post-certification
on-the-job training and was allowed to conduct these four screening activities
without supervision.
[12]
The
Foundations I course did not contain any courses on the X-ray equipment. The
Applicant was then supposed to take the Foundations II course which would have
contained a component on the X-ray equipment.
[13]
As
a result of the attempted bombing of Northwest Airlines flight 253 on December
25, 2009, CATSA was required to enhance security screening. As a result,
changes to the training program occurred. The Foundations I and Foundations II
courses were replaced with Foundations and X-ray courses. All Screening
Officers who had completed Foundations l but not Foundations II upgrade”
course. The Foundations II upgrade course did not include training on X-ray
equipment. The Applicant was one of the Screening Officers that had completed
the Foundations I course but not the Foundations II course.
[14]
In
February 2010, the Applicant took the “Foundations II upgrade” course and
passed. The Applicant obtained the following endorsements: i) explosive
detection trace; ii) physical search of checked baggage; iii) physical search
of carry-on baggage; and, iv) professional conduct.
[15]
On
May 18, 2010, the Applicant took the X-ray course and passed. As such, the
Applicant was certified to operate the X-ray machine. The Applicant was
required to complete post-certification on-the-job training [OJT] before he
could operate the X-ray machine unsupervised. The Applicant completed his OJT
on May 21, 2010. The Applicant was then allowed to operate the X-ray machine on
his own.
[16]
After
a Screening Officer is certified to work on the X-ray machine, CATSA has no
control on how the screening contractor decides to staff the different
positions at the screening check point. It is up to the screening contractor to
ensure that its employees get the necessary exposure on various screening
duties and equipment.
[17]
According
to his XRT Transcript, the Applicant logged into “X-ray Tutor” (a training
program where Screening Officers view X-ray images of bags to practice identifying
prohibited items) a total of forty four (44) times and completed twenty eight
(28) sessions from May 21, 2010 to November 17, 2010. From November 18, 2010 to
January 5, 2011, the Applicant logged in a total of eighty four (84) times and
completed seventy four (74) sessions. From the first time that the Applicant
logged on in December 2009, until he failed his final re-certification test, he
logged over 190 times and he completed 102 sessions on the X-ray tutor
according to the transcript.
[18]
As
the Applicant was initially certified in November 2009, he was required to be
recertified by November 2010 (one year later). To be recertified, on October
26, 2010, the Applicant enrolled to take the Recurrent Learning and
Recertification Program [RLRP] exams. The RLRP is a continuous learning program
to assist Screening Officers in maintaining and enhancing their skills and
competencies, primarily through self-directed e-modules, XRT and in-service
exercises. Screening Officers that successfully complete the RLRP are
recertified and to no need to undergo further testing.
[19]
If
a Screening Officer fails the RLRP exams, the Screening Officer is required to
undergo re-certification exams in person before a CATSA Learning and
Performance Advisor.
[20]
On
October 26, 2010, the Applicant tailed the X-ray image analysis component of
the RLRP. As such, the Applicant was required to undergo his re-certification
testing in person with a CATSA Learning and Performance Advisor.
D. Applicant’s X-ray re-certification
testing on November 17, 2010
[21]
On
November 17, 2010, the Applicant underwent re-certification testing for X-ray.
The examination was conducted by CATSA’s Learning and Performance Advisor [LPA]
Mark
Flemming. The
examination consisted of reviewing ten (10) X-ray images of bags. The Screening
Officer is required to take appropriate action for each image. The Applicant
failed to identify prohibited items in two (2) X-ray images.
[22]
Despite
the Applicant’s assertions, the pass mark was not 80%. The pass mark is simply
a pass. The Applicant did not meet the requirements to pass the X-ray component
of the recertification exam.
[23]
The
pass mark of the recertification exam did not change.
[24]
Failing
to properly identify two images on the X-ray component was not an 80%, it is a
failure. The Applicant did not meet the requirements to pass the practical
X-ray examinations.
E. Performance Improvement Plan and
On-the-Job Training
[25]
As
a result of his failed X-ray re-certification testing, the Applicant was
provided with a Performance Improvement Plan [PIP]. This PIP was to help the
Applicant prepare for his second attempt at the X-ray re-certification exam.
[26]
The
PIP required the Applicant to complete ten (10) hours of OJT. The OJT consisted
of working on the X-ray machine under the supervision and coaching of a
supervisor.
[27]
The
Applicant completed the PIP requirements on December 18, 2010; however, Mr. Saul Hermann, the Point
Leader that concluded the skills review, indicated the following:
His knowledge of the X-ray ATIX 6040 was
very poor so we started from scratch. He stops all bags but his image analysis
is slow and in my consideration is at minimum acceptable standards.
(Affidavit of Jean Sévigny [Sévigny
Affidavit] at para 25; Exhibit A at p 9).
[28]
Moreover,
in the X-ray Training Activities document, the Point Leader commented that the
Applicant’s “overall performance” is at “barely minimum standards” (Sévigny
Affidavit at para 26; Exhibit A at p 10).
[29]
On
December 20, 2009, Kiran Saran, Aeroguard Training Coordinator sent the PIP and
the Performance Event Report to Sangita Gore, Acting, Regional Learning
Manager, for approval. In her email to Kiran Saran, dated December 20, 2010,
Sangita Gore notes that there are concerns with the Applicant’s skills review
and comments on the Performance Event Report. Sangita Gore requests that the
Applicant be provided with additional training followed by another skills
review (Sévigny Affidavit at para 27; Exhibit A at p 12).
[30]
On
December 25, 2010, the Applicant was provided with an additional four (4) hours
of OJT and a new skills review. In the Performance Event Report, dated December
25, 2010, Saul Hermann, Point Leader indicated that the Applicant showed
improvement and that he “could be considered as meeting minimum standards”
(Sévigny Affidavit at para 28; Exhibit A at p 13).
[31]
On
December 31, 2010, the Applicant’s second PIP requirements were completed
(Sévigny Affidavit at para 29; Exhibit A at p 15).
F. Applicant’s second X-ray
re-certification testing on January 5, 2011
[32]
On
January 5, 2011, before undergoing his second attempt at re-certification
testing, the Applicant signed his Recertification Readiness Form indicating
that he was prepared to take the test. This included the fact the Applicant
checked off that he has “completed all pretest requirements - including, but
not limited to: On-the-Job Training (OJT), X-ray Tutor, and Performance
Improvement Plans” (Sévigny Affidavit at para 30; Exhibit A at p 6).
[33]
On
January 5, 2011, the Applicant underwent his second re-certification testing
for X-ray. The examination was conducted by CATSA’s Learning and Performance
Advisor (LPA) Diane Klein. The
examination consisted of reviewing ten (10) X-ray images of bags and the
Screening Officer is required to take appropriate action for each image. As set
out in the LPA Briefing Note, dated January 5, 2010, the Applicant failed this
test because he made two (2) incorrect decisions (Sévigny Affidavit at para 31;
Exhibit a at pp 3 and 4).
[34]
The
January 5, 2011 test was witnessed by Rattandeep Paul, Training
Point Leader (Sévigny Affidavit at para 32; Exhibit A at p 5).
G. CATSA’s Decertification Process
[35]
CATSA
promotes and maintains a certification process. To this end, CATSA has
established the Local Decision Board [LDB] and the National Decision Board
[NDB].
[36]
CATSA
provides Screening Officers with an opportunity to make representations and
provide evidence and additional information where necessary. Screening Officers
can seek the assistance of any representative to help them throughout the
investigation and review process. CATSA’s investigation and review process to
deal with Performance Events is set out in chapter 11 of the SOP (Sévigny
Affidavit at para 34; Exhibit A at pp 85 to 94).
[37]
In
the present case, the Performance Event was the Applicant’s failed
recertification tests.
H. Local Decision Board Recommendation
[38]
When
a Performance Event occurs, the LDB reviews the event to determine its severity
and make further recommendations. In the event of a second failed X-ray
recertification test, the NTCP provides that the LDB refers the matter to the
NDB. As indicated in the LPA Briefing Note, dated January 5, 2011, the LDB was
of the view that the Applicant’s testing had been done fairly and there were no
reasons to offer a third attempt (Sévigny Affidavit at para 35; Exhibit A at pp
3 and 4).
I. National Decision Board
[39]
The
NDB reviews matters that may lead to a Screening Officer de-certification. In
the Applicant’s case, the NDB was comprised of the Senior Director of Screening
Operations, the Director of Screening Personnel, Learning and Development, the
General Manager of Training Delivery and the Manager, National Operations
Coordination.
[40]
The
members of the NDB have a background and are trained in various areas of
aviation security screening including the training requirements necessary to
ensure the integrity of aviation security. Members of the NDB are aware of the
importance of set procedures in the review and investigation of Screening
Officer certification-related matters.
[41]
On
January 31 2011, the NDB sent a letter to the Applicant explaining that his
X-ray endorsement had been suspended following the result of his second failed
recertification attempt. The NDB also explained how it would conduct its review
and enclosed several documents (Sévigny Affidavit at para 38; Exhibit A at pp
31-60).
[42]
On
February 8, 2011, the Applicant submitted his written submissions and
additional documents. In those submissions, he did not raise the issue of being
under duress when signing his readiness from prior to his second recertification
test, or that he had not completed the required OJT in preparation for his
second attempt (Sévigny Affidavit at para 39; Exhibit A at pp 61-67).
[43]
After
completing a thorough review, the NDB, headed by Mr. Jean Sévigny, Director,
Learning and Development, decided to decertify the Applicant for a period of
twelve (12) months. This means that the Applicant could reapply to become a
Screening officer as of February 23, 2012.
[44]
The
NDB decision and reasons were communicated to the Applicant on February 23, 2011.
III. Issues
[45]
(1)
What is the appropriate standard of review?
(2)
Did the decision-maker base the decision on an erroneous finding of fact made
in a perverse or capricious manner or without regard for the material before
him?
IV. Analysis
(1) Standard
of Review
[46]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraphs 62
and 64, the Supreme Court of Canada set out the applicable test for the
standard of review. The Court must first ascertain whether past jurisprudence
has satisfactorily determined the standard of review with regard to the
particular category of question.
[47]
The
case of Bhatthal v Canada (Attorney General), 2009 FC 1182, 354 FTR 302,
as in this case, involved a judicial review of a decision of a CATSA National
Decision Board. In Bhatthal, this Court considered the standard of
review to be applied in such cases to be reasonableness (Bhatthal at
para 17-22).
[48]
In
Bhatthal, the Federal Court stated:
[22] In Dunsmuir, the
Court held that reasonableness is concerned with the existence of
justification, transparency and intelligibility within the decision-making
process, as well as whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
at para. 47).
[49]
Similarly
in Bhatthal, the Court specified:
[28] In this case, based on
this standard of review, it is not for the Court to interfere with the decision
of the CDR, if reasonable in light of the evidence, because it was up to the
CATSA, as master of its domain of airport security, to weigh the evidence
before it.
(2) There
was no erroneous finding of fact
(a) Was
the Decision Reasonable?
[50]
The
Court agrees with the position of the Respondent that the decision is
reasonable.
(i) The reference
in the Decision regarding logging into the XRT over 190 times
[51]
The
Applicant indicates that it was an error of fact in the Decision that the
decision-maker referred to the Applicant logging into the XRT program 190 times
to improve his image recognition skills. This is not an error in fact.
[52]
The
Applicant logged in at least 190 times from the time he first logged on to the
XRT program in December 2009 and the time that he failed his second
recertification test on January 5, 2011. The Applicant is erroneously focussing
on time periods referenced in the Affidavit of Jean Sévigny which are different
than those that were referenced in the Decision (Sévigny Affidavit at para 16;
Exhibit A at pp 24-30).
[53]
Also,
with respect to the Applicant’s repeated assertions that the training equipment
(X-ray Tutor) is not the same type of equipment used at a screening point, it
is important to note that X-ray Tutor is a training software that projects
X-ray images on a personal computer. X-ray Tutor is a training tool and is not
meant to be a reproduction of the actual X-ray machine.
(b) The
reference in the Decision to 14 hours of OJT
[54]
The
Applicant has suggested that between his first-recertification failure and his
second recertification test he had not received the 14 OJT hours noted in the
Decision; however, on January 5, 2011, before undergoing his second
recertification testing, the Applicant signed his Recertification Readiness
Form indicating that he had “completed all pretest requirements – including,
but not limited to: On-the Job Training (OJT), X-ray Tutor, and Performance
Improvement Plans” and that he was prepared to take the second recertification
test.
[55]
In
addition, on December 18, 2010, the Applicant initialized each OJT component on
the Performance Event Report indicating that he had received all the required
OJT on December 18, 2010 and this is also indicated in the Training Activities
Report, dated that day.
[56]
While
the Applicant now claims that he was under duress to complete the
Recertification Readiness Form prior to his second recertification testing,
there is no evidence that was the case. Moreover, this allegation was not
brought to the attention of CATSA prior to the testing. Also, the allegation of
duress was not raised in the Applicant’s submissions to the NDB.
[57]
Additionally,
the Applicant did not raise before the NDB his allegation of not having
received the required OJT hours after his first recertification failure and
prior to his second recertification test.
[58]
Accordingly,
he is estopped from raising those issues now on judicial review (Canada v
Chevron Canada Resources Ltd, [1999] 1 FC 349 (CA)).
[59]
In
any event, a review of the Applicant’s evidence reveals that the Applicant
received the 14 hours of OJT noted in the Decision. The exhibits attached to
his affidavit indicate that he received 7 hours of “basic” training and 3 hours
of “intermediate” training for a total of 10 hours of OJT on December 18, 2010
(Affidavit of David Williams [Applicant’s Affidavit] at para 23-35; Exhibits 6
and 7).
[60]
The
Applicant’s position with respect to the additional four (4) hours of OJT on
December 25, 2010 is contradictory. In paragraph 35 of his affidavit, the
Applicant acknowledges that the four hours of OJT were completed on December
25, 2010. Then he appears to suggest that he only received one hour of OJT.
Again, the Applicant did not raise any issue regarding the insufficiency of the
OJT in his submissions to the NDB (Applicant’s Affidavit at para 35-41;
Exhibits 9-11).
[61]
The
documents establish that OJT was completed on December 25, 2010. During the
Applicant’s 10 hour shift, there is no reason by which to understand that the
four (4) hours of OJT were not obtained. The Performance Event Report signed by
the Applicant on that day indicates that his skills review was completed that
day as this box was checked off (Applicant’s Affidavit at para 34-40; Exhibits
A at pp 12-14).
[62]
Accordingly,
there is no reviewable error in the Decision with respect to the finding that
the Applicant had received the additional 14 hours of OJT in the relevant time
frame.
(c) Assumption
of Jean
Sévigny
[63]
The
Applicant also claims that it is an error of fact that in his letter to the
Applicant, dated January 31, 2011, Jean Sévigny indicates that the Applicant is
temporarily suspended from his X-ray endorsement after he failed his second
recertification test on January 5, 2011, because it indicates an incorrect
assumption regarding his continuing screening of passengers after his
de-endorsement on November 17, 2010.
[64]
Despite
the Applicant’s assertions as to what Mr. Sévigny must have
assumed, the fact is the Applicant was entitled to continue to screen
passengers after his de-endorsement but he had to be supervised on the X-ray
component. Whether the Applicant’s employer permitted him to do so is another
matter. It is important to note that this letter, dated January 31, 2011, is
not the decision under review and no reviewable error has been demonstrated in
any event.
(d) Screening Officer must
be Unable to Meet More than One Requirement in Order to Suspend Screening Privileges
[65]
The
Applicant also asserts that a Screening Officer must be unable to meet more
than one requirement in order to have his screening privileges varies,
suspended or cancelled according to section 8.3 of the CATSA Act;
however, a review of that section would indicate that interpretation by the
Applicant is not sustainable. Section 8 of the CATSA Act reads as
follows:
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Criteria for screening contractors and officers
8. (1) The Authority must establish criteria
respecting the qualifications, training and performance of screening
contractors and screening officers, that are as stringent as or more
stringent than the standards established in the aviation security regulations
made under the Aeronautics Act.
Certification
(2) The Authority must certify
all screening contractors and officers against the criteria established under
subsection (1).
Varying, suspending or cancelling certification
(3) If the Authority
determines that a screening contractor or officer no longer meets the
criteria in respect of which they were certified, the Authority may vary,
suspend or cancel their certification.
…
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Critères
8. (1)
L’Administration établit des critères de qualification, de formation et de
rendement, applicables aux fournisseurs de services de contrôle et aux agents
de contrôle, qui sont au moins aussi sévères que les normes qui sont établies
dans les règlements sur la sûreté aérienne pris sous le régime de la Loi sur
l’aéronautique.
Certificat
(2)
L’Administration accorde un certificat de conformité aux fournisseurs et aux
agents qui se conforment aux critères.
Modification, suspension et annulation
(3)
L’Administration peut modifier, suspendre ou annuler un certificat si elle
conclut que son titulaire ne se conforme plus aux critères.
[...]
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[66]
There
is no indication that the term “criteria” in section 8.3 is referring to
endorsements or that the Applicant must fail more than one endorsement to vary,
suspend or cancel the Applicant’s screening endorsement.
(e) The
Recertification Testing Changed Since the Decision
[67]
Finally,
the Applicant’s ultimate assertions (para 65) of his argument regarding the
testing requirements post Decision do not have a bearing on the matter.
V. Conclusion
[68]
Due
to all of the above, the Applicant’s application for judicial review is
dismissed with costs.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s application for
judicial review be dismissed with costs.
Obiter
In his
written and oral pleadings, Mr. Williams specified that he was
“under duress” during his testing period. If Mr. Williams was “under duress”,
for family reasons as he stated, then he should have requested a leave of
absence, or a longer leave of absence, than he originally took, thus, a
continued leave of absence; however, he stated he did not do so, for economic
reasons, as he did not want to be exposed to the economic repercussions of a
leave of absence which went beyond the time-period allocated to him, one, which
he had originally requested, but, only for a certain period of time.
It would
appear that Mr. Williams’ written and oral pleadings in regard to his “stress”
or “under duress” argument is not valid. Mr. Williams, it would seem, should
have asked for an additional leave of absence from his position; if, Mr.
Williams reached the conclusion that he was unable to take the test at the
specific time in question, how could he, nevertheless, in the same time-period,
have been able to continue to work, at his screening position, responsible for
the security of the public, as per his duties?
“Michel
M.J. Shore”
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