Date: 20070921
Docket: T-78-07
Citation: 2007 FC 946
Ottawa, Ontario, September 21,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
STEPHEN
MYERS
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
There
are two applications for judicial review being heard by this Court one
following the other pursuant to an Order of Madam Prothonotary Aronovitch,
dated August 30, 2007. This application, Docket T-78-07, is the second being
heard by the Court. It is for judicial review of a decision of the Department
of Public Works and Government Services Canada (PWGSC) on December 14, 2006
denying the applicant reliability status. The first application, Docket T-529-07,
was for judicial review of a decision of the Canada Revenue Agency (CRA) on
August 3, 2006 revoking the applicant’s “enhanced reliability status.”
[2]
In
the first application, I found that Director of the CRA’s Ottawa Technology
Centre breached the rules of procedural fairness in failing to provide the
applicant with an adequate opportunity to address the allegations against him
before a final decision was rendered.
FACTS
[3]
The
applicant worked on several short-term contracts for various government
departments and agencies. The applicant obtained these contracts through employment
agencies.
[4]
To
qualify for these contract positions, the applicant needed to be granted a
reliability status by PWGSC. The applicant first obtained reliability status
from PWGSC on June 27, 2003. The status was not due to expire until June 27,
2013. Since obtaining reliability status from PWGSC, the applicant has been
employed by several government departments and agencies:
October to December 2003 – Public Health
Agency of Canada
January to June 2004 – Department of
National Defence
October to December 2004 – Treasury Board
Secretariat
July 2005 – Corrections Canada
October to December 2005 – Public Health
Agency of Canada
January 2006 – Health Canada
February to March 2006 – Canadian
International Development Agency
April to July 2006 – Canada Revenue
Agency
[5]
On
April 3, 2006, the applicant commenced working for the CRA as a Tele Trace
Agent at the Collections Call Centre in Ottawa, Ontario. The
applicant was employed in this capacity for almost three months when he
resigned on June 28, 2006. While at the CRA, the applicant was investigated for
improperly using the CRA’s electronic mail system. As a result of that
investigation, the CRA revoked the applicant’s CRA-granted “enhanced reliability
status” on August 3, 2006. The circumstances surrounding the revocation are
discussed at length in the application respecting Docket T-529-07.
[6]
After
leaving the CRA, the applicant began working with another employment agency in
an attempt to find employment. The agency found a contract for the applicant,
but that contract required a Level II (Secret) security clearance. On October
27, 2006, the employment agency, on behalf of the applicant, requested a
security clearance from PWGSC so that the applicant could undertake the
contract.
[7]
On
October 31, 2006, in response to the aforementioned request, PWGSC provided the
employment agency with a Level II (Secret) security clearance for the
applicant. It is clear to the Court that this security clearance was provided
because the applicant had received from PWGSC a reliability status on June 27,
2003, which was not due to expire until June 27, 2013. A few days later, the
employment agency was informed by PWGSC in a telephone conversation that the
security clearance had been issued in error, and PWGSC requested that the
certificate be returned. The employment agency complied with this request.
Decision under review
[8]
After
the certificate was returned, the applicant was asked by PWGSC to attend a
“Resolution of Doubt” interview on November 15, 2006 to review and address new
information respecting the applicant’s file that came to the attention of PWGSC.
Specifically, the interview was to address the applicant’s adverse public
service record with the CRA and the CRA’s subsequent decision to revoke the
applicant’s “enhanced reliability status.” At the “Resolution of Doubt”
interview, eight factors regarding the applicant’s reliability were identified
as being “unsatisfactory,” namely the applicant’s employment history; personal
contacts; finances; ability to cope with stress; personal issues; past criminal
and civil proceedings; and the events at the CRA.
[9]
The
“Resolution of Doubt” Interview Report led to the creation of a “Denial
recommendation.” This document contained an Overview, which stated:
Overview
On October 30, 2006, a request to
transfer a previously granted Secret clearance in favour of Stephen Jonathan
Myers was initiated. We learned that Stephen Jonathan Myers had previous
Adverse Public Services Record with the [CRA]; he resigned from a position within
the Ottawa Technology Center on June 12, 2006 prior to disciplinary actions to
revoke his security clearance for an irreparable breach of the [bond] of trust
between himself and the Agency. A follow-up Resolution of Doubt … interview was
tasked to clarify issues that could have been detrimental in pursuing this
request. It was learned that the subject would not acknowledge any wrongdoing
while employed by the [CRA] and will not acknowledge receipt of the letter
dated August 3, 2006 from the [CRA] revoking his Reliability status.
After providing a detailed summary of the
applicant’s security screening history, this “Denial recommendation” concluded:
Recommendation
Based on adverse information obtained
with regards to the subject’s past criminal convictions as well as the doubt on
the subject’s reliability continues to be present, it is recommended that this
individual’s request for Reliability Status be denied.
[10]
On December 14, 2006, Albert Bissonnette, Acting
Director for the Canadian & International Industrial Security Directorate,
PWGSC, executed the recommendation, which thereby denied the applicant’s
request for reliability status.
ISSUES
[11]
Two
issues were raised in this application:
1)
Whether
the Acting Director had the authority to deny reliability status to the
applicant; and
2)
Whether
the Acting Director’s decision was unreasonable on the facts set out in the
“Resolution of Doubt” Interview Report.
STANDARD OF REVIEW
[12]
The
applicant submits that the standard of review with respect to the December 14,
2006 decision is reasonableness. The respondent submits that the standard of
review is patent unreasonableness. In Dr. Q v. College of Physicians and
Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme
Court of Canada affirmed the primacy of the pragmatic and functional approach
when determining the appropriate standard of review to be applied to an
administrative decision. In the application for judicial review respecting
Docket T-529-07, I determined that decisions relating to whether an individual
is reliable are highly factual in nature, within the expertise of the human
resources management, and great deference should be afforded. This means the
second issue is to be reviewed on a patently unreasonable standard.
[13]
While
my conclusions in that application dealt with the ability of a CRA official to
revoke a CRA-issued “enhanced reliability status,” they apply equally to this
context where the decision to deny a reliability status is being made by an
official of PWGSC.
[14]
The
first issue, with respect to the authority of the Acting Director, is a
question of law to be reviewed on a correctness standard.
ANALYSIS
[15]
On
the first issue, the applicant submits that since Mr. Bissonnette is not a
deputy head, he did not have the authority to cancel a security clearance. The
respondent submits that the Acting Director had the authority, as the December
14, 2006 decision was not for a security clearance, but rather was for
reliability status, which is a necessary precondition to obtaining a security clearance.
Moreover, the respondent states that the Security Intelligence Review Committee
is the body empowered to decide issues relating to the denial of security
clearances. At the hearing, I informed the parties that the Court does not need
to decide this issue in order to decide this application.
[16]
On
the second issue, the Court heard the parties on the underlying facts with
respect to the conclusions of the “Resolution of Doubt” officer on November 15,
2006 and the “Denial recommendation.” These conclusions formed the reasons for
the decision to deny the applicant a reliability status. The Court is satisfied
on the evidence that the respondent’s conclusions were not unreasonable or
patently unreasonable.
[17]
However,
the Court must conclude that the CRA decision to revoke the applicant’s
“enhanced reliability status” was the primary factor leading to a more
intensive review of the applicant’s reliability credentials in the case at bar.
Because of this, the Acting Director’s decision was materially affected by the
CRA’s decision to revoke the applicant’s “enhanced reliability status.” Since I
have set aside the CRA decision in Docket T-529-07 for a breach of procedural
fairness, and since I must conclude that that procedural error materially
affected the respondent’s decision in the case at bar, the decision in the case
at bar must also be set aside.
COSTS
[18]
On
the first application, Docket T-529-07, regarding the breach of the duty to act
fairly, the applicant is entitled to its costs. On the second application, the
success is divided. The Court is not prepared to find that the decision was
unreasonable on other factors except for the influence of the CRA decision. For
that reason, no costs will be awarded.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1)
this
application for judicial review is allowed;
2)
the
decision of PWGSC denying the applicant reliability status is set aside; and
3)
the
matter will be referred to another PWGSC officer to redetermine this decision
after providing the applicant with another “Resolution of Doubt” interview
without reference to the erroneous CRA decision dated August 3, 2006.
“Michael
A. Kelen”
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