Date: 20070921
Docket: T-529-07
Citation: 2007 FC 947
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-529-07, is the first being heard by the
Court. It is for judicial review of a decision of the Canada Revenue Agency
(CRA) on August 3, 2006 revoking the applicant’s “enhanced reliability status.”
The second application, Docket T-78-07, 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.
FACTS
[2]
The
applicant worked on several short-term contracts for various government
departments and agencies. The applicant obtained these contracts through employment
agencies.
[3]
To
qualify for some of these contract positions, the applicant had to undergo a
security screening and be granted reliability status. The applicant first
obtained reliability status from PWGSC on June 27, 2003. That 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
[4]
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. The applicant’s resignation was to take effect on July 12,
2006. The respondent contends that three days before the applicant’s July 12,
2006 resignation was to take effect, the CRA dismissed the applicant because
his team leader discovered he was misrepresenting his performance to
management.
The CRA’s investigation of the applicant
[5]
In
early June 2006, the CRA investigated the applicant for allegedly misusing the
CRA’s electronic mail system, and for misrepresenting both himself and the CRA
for his “own personal gain.” The CRA’s investigation stemmed from accusations
made by the applicant that the father of his sister’s child was involved in
acts of fraud against the CRA and other government departments. The
investigation focused on the events of June 6, 2006, whereby the applicant sent
six e-mails to the Ottawa police and other government departments
alleging such conduct. In many of these e-mails, the applicant represented
himself as acting on behalf of the CRA.
[6]
On
June 8, 2006, the applicant met with CRA management regarding these allegations
and was informed that there would be an investigation into his conduct. The
applicant was also informed that there would be a second meeting once the
investigation was complete. While the investigation was ongoing, the applicant
submitted his resignation. On July 20, 2006, the CRA received an investigation
report into the applicant’s use of the CRA’s electronic mail system. That
report revealed that between April 20, 2006 and June 23, 2006, the applicant
sent and received 3252 personal e-mails; 1440 of which were sent by the
applicant.
Decision under review
[7]
On
August 3, 2006, after the applicant resigned, the CRA revoked the applicant’s “enhanced
reliability status” because his conduct created “an irreparable breach of the
bond of trust” between himself and the CRA. The revocation letter provided two
reasons for revocation: (1) the applicant misrepresented himself by using the
CRA name and perceived level of authority in correspondence with other
government departments; and (2) the applicant misused the CRA electronic mail
system by transmitting “an excessive amount of [personal] e-mails” through the system.
ISSUES
[8]
There
are two issues raised in this application:
1)
Whether
the CRA met its burden of proof in adducing sufficient evidence to revoke the
applicant’s “enhanced reliability status”; and
2)
Whether
the Director breached the rules of procedural fairness in failing to provide
the applicant with notice of, or any opportunity to respond to, the allegations
made against him.
STANDARD OF REVIEW
[9]
In
considering this application for judicial review, it is not for the Court to
satisfy itself that it would have come to the same conclusion as the decision-maker
in question. Rather, as Madam Justice Dawson recently stated in Mulveney v. Canada (Human
Resources Development), 2007 FC 869 at paragraph 7:
¶ 7 … the Court must determine, as
a matter of law, what the proper standard of review to be applied to the
Minister’s decision is, and then it must apply that standard of review to the
decision.
[10]
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. As the Court stated at paragraph 22:
¶ 22 To determine standard
of review on the pragmatic and functional approach, it is not enough for a
reviewing court to interpret an isolated statutory provision relating to
judicial review. Nor is it sufficient merely to identify a categorical or
nominate error, such as bad faith, error on collateral or preliminary matters,
ulterior or improper purpose, no evidence, or the consideration of an
irrelevant factor. Rather, the pragmatic and functional approach calls upon the
court to weigh a series of factors in an effort to discern whether a particular
issue before the administrative body should receive exacting review by a court,
undergo “significant searching or testing” … or be left to the near exclusive
determination of the decision-maker. These various postures of deference
correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.
[11]
The
contextual factors addressed by the Supreme Court in Dr. Q are the
presence or absence of a privative clause or statutory right of appeal; the
expertise of the decision-maker relative to that of the reviewing court; the
purposes of the legislation and the provision in question; and the nature of the
question.
[12]
In
relation to the first factor, neither the Canada Revenue Agency Act,
S.C. 1999, c. 17 (CRA Act) nor the Financial Administration Act,
R.S.C. 1985, c. F-11 contains a privative clause or an automatic right of
appeal. This factor is therefore to be treated as neutral, requiring that
neither greater nor less deference be accorded to the decision-maker.
[13]
With
respect to the expertise of the decision-maker, it is clear that a valid
reliability status is a term of employment for positions within the federal
public service. The decision to revoke an “enhanced reliability status” is
therefore one that concerns human resources management in the federal public
administration. Paragraph 30(1)(d) of the CRA Act gives the CRA
authority over all matters relating to “human resources management, including
the determination of the terms and conditions of employment of persons employed
by the Agency.” As such, in relation to matters of whether an individual is
“reliable” in the eyes of the CRA, the decision-maker has special expertise and
deference should be afforded.
[14]
As
mentioned, the CRA Act is intended to give the CRA exclusive authority
relating to matters of human resources management. These provisions are
supplemented by the Government Security Policy, which is intended to
“support the national interest and the Government of Canada’s business
objectives by safeguarding employees and assets and assuring continued delivery
of services.” The respondent rightly submits that the instruments’ combined purpose
is to protect the Government from potential security risks, and to allocate the
authority to manage those risks with the CRA. This intention suggests a
deferential standard.
[15]
The
final factor to be considered is the nature of the question. Decisions relating
to whether an individual is “reliable” are highly factual in nature and, as
such, must be afforded great deference. This was recognized by the Federal
Court of Appeal in Kampman v. Canada (Treasury
Board),
[1996] 2 F.C. 798 at paragraph 12, where Mr. Justice Marceau stated:
¶ 12 … a reliability assessment is
the responsibility of the institution concerned and a so-called enhanced
reliability status is essentially an attestation that, in the subjective
opinion of the deputy head of the institution, a high degree of confidence or
reliance may be placed on the individual involved. The revocation of that
status in the case of an employee is a prerogative of the deputy head and
merely reflects a change in that opinion, a loss of confidence in the
employee’s reliability.
In this case, the first issue with respect
to the burden of proof is a question of mixed fact and law, and warrants less
deference. The second issue is a question of procedural fairness, and is
entitled to no deference: Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392.
[16]
The
pragmatic and functional analysis therefore leads the Court to the conclusion
that the first issue be reviewed on a reasonableness simpliciter
standard, and the second issue on a correctness standard.
ANALYSIS
[17]
Before
considering the issues, the Court will review the respondent’s powers and
policies regarding personnel security screening.
Treasury Board powers and
policies regarding personnel security screening
[18]
Subsection
7(1) of the Financial Administration Act allocates a list of
responsibilities to the Treasury Board. Included in this list is paragraph (e),
which states:
|
Responsibilities
of Treasury Board
7. (1) The Treasury Board may act
for the Queen’s Privy Council for Canada on all matters relating to
[...]
(e) human resources management in the
federal public administration, including the determination of the terms and
conditions of employment of persons employed in it;
|
Attributions du
Conseil du Trésor
7. (1) Le Conseil du Trésor peut agir au
nom du Conseil privé de la Reine pour le Canada à l’égard des questions
suivantes:
[...]
e) la gestion des ressources
humaines de l’administration publique fédérale, notamment la détermination
des conditions d’emploi;
|
[19]
Further
clarifying the Treasury Board’s powers respecting human resources management is
subsection 11.1(1) of the Financial Administration Act, which states, inter
alia:
|
Powers of the Treasury Board
11.1 (1) In the exercise of its human resources management
responsibilities under paragraph 7(1)(e), the
Treasury Board may
[…]
(b) provide
for the classification of positions and persons employed in the public
service;
[…]
(j) provide
for any other matters, including terms and conditions of employment not
otherwise specifically provided for in this section, that it considers
necessary for effective human resources management in the public service.
|
Pouvoirs du Conseil
du Trésor
11.1 (1) Le Conseil du Trésor peut, dans l’exercice des attributions en
matière de gestion des ressources humaines que lui confère l’alinéa 7(1)e) :
[…]
b) pourvoir à la classification des postes et des personnes
employées dans la fonction publique;
[…]
j) régir toute autre question, notamment les conditions de travail
non prévues de façon expresse par le présent article, dans la mesure où il
l’estime nécessaire à la bonne gestion des ressources humaines de la fonction
publique.
|
[20]
Under
this authority, the Treasury Board has enacted the Government Security
Policy (the Policy), which supports “the national interest and the
Government of Canada’s business objectives by safeguarding employees and assets
and assuring the continued delivery of services.” One key aspect of the Government
Security Policy is its requirement that all individuals requiring access to
government assets and classified information undergo a security screening in
order to ensure that they are “reliable and trustworthy.” As article 10.9 of
the Policy states:
Special care must be taken to ensure the
continued reliability and loyalty of individuals, and prevent malicious
activity and unauthorized disclosure of classified and protected information by
a disaffected individual in a position of trust.
[21]
Supplementing
the Government Security Policy is the Treasury Board’s Personnel
Security Standard, which “establishes the operational standard and certain
technical-level procedures for personnel security.” The Personnel Security
Standard contains both mandatory and recommended measures that help guide
the implementation of the Government Security Policy.
Three levels of personnel
screening
[22]
There
are three levels of screening under the Government Security Policy and Personnel
Security Standard. The first level is referred to as “basic reliability
status,” and is “required for individuals under contract for more than six
months and who have regular access to government premises.” Individuals with “basic
reliability status” are only granted access to information and assets that are
neither classified nor designated. As the Federal Court of Appeal stated in Kampman,
above, at paragraph 11 with respect to “basic reliability status”:
“basic reliability is to be expected of any employee.”
[23]
The
second level of status is referred to as “enhanced reliability status,” and is
required where the duties or tasks of a position or contract “necessitate
access to designated information and assets, regardless of the duration of an
assignment, appointment or contract.” Individuals with “enhanced reliability
status” are able to access classified information and assets, on a need-to-know
basis. This interpretation is in accord with the Court of Appeal’s findings in Kampman,
above, where it is stated at paragraph 11 that “enhanced reliability status is
required of anyone whose duties may put him or her in contact with designated
information or assets.”
[24]
The
final level of status is referred to as “security clearance,” which is required
where the duties or tasks of a position or contract necessitate access to
classified information and assets. Security clearances are further divided into
three categories, depending on the type of access required. There is Level I
clearance relating to confidential information, Level II clearance relating to
secret information, and Level III clearance relating to top secret information.
An individual granted security clearance may access, on a need-to-know basis,
classified information and assets up to and including the level of security
granted. In order to obtain a security clearance, an individual must already
have a valid reliability status. Security clearances may be granted by the
deputy head or a departmental security officer on behalf of the deputy head,
but decisions to deny, revoke, or suspend security clearances must be made by
the deputy head, and those decisions are non-delegable.
CRA powers and policies
regarding personnel security screening
[25]
Section
30 of the CRA Act outlines a number of matters over which the CRA has
authority:
|
Matters over which Agency has
authority
30. (1) The
Agency has authority over all matters relating to
(a) general administrative policy in the Agency;
(b) the organization of the Agency;
(c) Agency real property and Agency immovables as defined in
section 73;
(d) human resources management, including the determination of
the terms and conditions of employment of persons employed by the Agency; and
(e) internal audit in the Agency.
Treasury Board regulations
(2) Notwithstanding the Financial
Administration Act, the Agency is not subject to any regulation or
requirement established by the Treasury Board under that Act that relates to
any matter referred to in subsection (1), except in so far as any part of the
regulation or requirement relates to financial management.
|
Compétence générale
de l’Agence
30. (1) L’Agence
a compétence dans les domaines suivants :
a) ses grandes orientations administratives;
b) son organisation;
c) les immeubles de l’Agence et les biens réels de
l’Agence, au sens de l’article 73;
d) la gestion de ses ressources humaines, notamment la
détermination de ses conditions d’emploi;
e) sa vérification interne.
Règlements et
exigences non applicables
(2) Par dérogation à la Loi sur la
gestion des finances publiques, l’Agence n’est pas assujettie aux
règlements ou exigences du Conseil du Trésor ayant trait aux questions visées
au paragraphe (1), sauf dans la mesure où ils ont trait à la gestion
financière.
|
[26]
As
subsection 30(2) makes clear, the CRA is not statutorily bound to the terms of
the Financial Administration Act or the Government Security Policy.
However, the CRA has entered into a Memorandum of Understanding with the
Treasury Board, whereby it agrees to bind itself by the terms of those
instruments. As the Memorandum outlines:
The Purpose of this Memorandum of
Understanding is to have the [CRA] subject to the provisions of the Government
Security Policy under the responsibility of the Treasury Board, which provides
the policies and supporting operational standards for the appropriate
safeguarding of sensitive information and assets as well as the security of the
employees for all the federal government.
[27]
Responsibility
for determining whether an individual requires “basic” or “enhanced reliability
status” or a security clearance is delegated to CRA Managers under Chapter 10
of the CRA’s Finance and Administration Manual. The type of status
required is dependent upon the type of job the individual performs and the type
of access the individual requires.
[28]
“Basic
reliability” is granted to those individuals whose duties do not require access
to designated information or assets, and who do not require unescorted access
on CRA premises. “Enhanced reliability,” on the other hand, is required by
those individuals whose duties require access to designated information and/or
unescorted access to CRA premises. The Finance and Administration Manual
states that directors are responsible for decisions to grant, deny, or revoke a
reliability status.
[29]
Security
clearance is granted to employees requiring access to confidential information
and involves a thorough risk assessment. The Finance and Administration
Manual states that the Assistant Commissioner is responsible for decisions
to grant, deny, or revoke a security clearance. This is consistent with the
terms of the Government Security Policy, which allocates responsibility
for such decisions to the deputy head and makes clear that such responsibility
cannot be further delegated.
[30]
The
applicant is asking this Court to interpret and give legal meaning to documents
that are neither acts of Parliament nor delegated legislation. The
jurisprudence is clear in stating the legal rights created by such policies
depend on the intent and context within which they were issued. As stated in Endicott
v. Canada (Treasury
Board),
2005 FC 253, 270 F.T.R. 220 at paragraph 11, per Strayer D.J.:
¶ 11 The 1999 Policy in question here was not delegated
legislation. It was clearly a directive by Treasury Board as to how departments
should deal fairly with their employees. Whether such internal directives
create legal rights which a court can define or enforce, appears from the
jurisprudence to depend on what the intent was and the context in which the
directive was issued.
[Emphasis added.]
I further stated in Glowinski v. Canada (Treasury
Board), 2006 FC 78, 286 F.T.R. 217 at paragraph 43:
¶ 43 … A Court of law should not give policies the force of law
unless Parliament clearly intended such policies to be given the force of law
and such policies are clear, and not inconsistent with other policies.
[31]
Both the Government Security Policy and the Personnel
Security Standard were mandated by the terms of the Financial
Administration Act and the CRA Act, and are consistent with these
enactments. As paragraph 7(1)(e) of the Financial Administration Act
states, the Treasury Board is given full authority concerning issues of “human
resources management in the federal public administration, including the
determination of the terms and conditions of employment of persons employed in
it.” Further, the responsibilities allocated to the Treasury
Board in establishing various screening levels is essential to maintaining a
public service comprised of individuals who are both “reliable and trustworthy”
in the eyes of their employers.
Issue No. 1: Did
the CRA meet its burden of proof in adducing sufficient evidence to revoke the
applicant’s “enhanced reliability status”?
[32]
The
applicant submits that the CRA failed to adduce sufficient evidence to prove
that the applicant was unreliable so as to justify the decision to revoke his
“enhanced reliability status.” The CRA evidence consisted of:
1)
Six
personal e-mails sent from the applicant’s CRA computer that accused a person
of fraud, and that appeared to be sent on behalf of the CRA. These accusations
of fraud involved a personal matter between the applicant and the father of his
sister’s child, and should not have involved or made reference to the CRA; and
2)
Evidence
that the applicant sent or received 3252 personal e-mails while on the job over
a two-month period. This is about 70 personal e-mails per day.
[33]
On
the reasonableness simpliciter standard, the Court is satisfied that the
respondent met its burden of proof to adduce sufficient evidence to revoke the
applicant’s “enhanced reliability status.” This evidence is clear, and at the
hearing before the Court, the applicant did not deny the veracity of this
evidence, only that he was not provided with it prior to the ultimate decision
being made to revoke his “enhanced reliability status.”
Issue No. 2: Did
the Director breach the rules of procedural fairness in revoking the
applicant’s “enhanced reliability status”?
[34]
The
question is whether, in revoking the applicant’s “enhanced reliability status,”
the Director of the CRA’s Ottawa Technology Centre complied with the rules of
procedural fairness. The applicant contends that the Director’s decision should
be set aside because the applicant was not provided with an opportunity to
properly respond to the allegations against him. The applicant argues that the
Director’s decision violated the rules of procedural fairness accorded to the
applicant under administrative law.
[35]
The
fact that the Director’s decision is administrative in nature and one that
affects the “rights, privileges or interests” of the applicant is enough to
give rise to a duty of procedural fairness: see Cardinal v. Director of Kent
Institution, [1985] 2 S.C.R. 643 and Baker v. Canada, [1999] 2
S.C.R. 817. The presence of a duty of fairness also appears to be encapsulated
within the Government Security Policy itself, where article 10.9 states
that government departments must “[t]reat individuals in a fair and
unbiased manner, and give them an opportunity to explain adverse information
before a decision is reached.”
[36]
In
situations where such a duty arises, the extent of the duty is dependent on the
circumstances of each individual case. In Baker, above, the Supreme
Court outlined a number of factors that are to be weighed in determining the
appropriate level of procedural fairness to be afforded: the nature of the
decision and the procedure followed in making it; the nature of the statutory
scheme and provisions within it; the importance of the decision to the
individual affected; the legitimate expectations of the person challenging the
decision; and the agency’s choice of procedure in making the decision.
[37]
First,
the Supreme Court made clear in Baker, above, that when determining the
appropriate level of fairness, one must look at the nature of the statutory
scheme and the terms of the statute pursuant to which the body operates. As the
Court stated at paragraph 24, greater protections will be required “when no
appeal procedure is provided within the statute, or when the decision is
determinative of the issue and further requests cannot be submitted.” In this
case, the applicant’s recourse is an application for judicial review in this Court.
The reasoning behind the Director’s decision is to be adjudged on a reasonableness
simpliciter standard, and the applicant has no further internal appeal once
the Director’s decision is rendered. These factors point to the need for
procedural safeguards above the minimal level.
[38]
Another
factor determining the appropriate level of fairness is the importance of the
decision to the individual. As the Supreme Court makes clear at paragraph 25 of
Baker:
¶ 25 ...The more important the
decision is to the lives of those affected and the greater its impact on that
person or those persons, the more stringent the procedural protections that
will be mandated. ...
The granting of reliability status (whether
basic or enhanced) is an integral term of employment in Canada’s public
service. As the Government Security Policy makes clear, the Government
of Canada “depends on its personnel and assets to deliver services that ensure
the health, safety, security and economic well-being of Canadians.” As such,
the government must be able to ensure that individuals with access to
government information and assets are both reliable and trustworthy. Where an
individual has been denied reliability status, or where that status has been
revoked, the individual’s employment is effectively terminated. Such an impact
is nothing less than profound. This also signals a degree of fairness that is
greater than the minimum level
[39]
In
this case, I am of the opinion that, at the very least, the applicant is
entitled to know the information upon which the decision is being made, and to
explain such adverse information before an ultimate decision is reached. In
the case at bar, the applicant was not given such an opportunity. The
respondent contends that the applicant was given sufficient opportunity to
respond to the CRA’s allegations at the June 8, 2006 disciplinary meeting, when
he was confronted with the allegation that he had used his CRA e-mail account
for improper purposes. I fail to see how this opportunity was sufficient to
respond to the serious allegations facing the applicant. First, Parise
Ouellette, whose recommendation formed the basis of the ultimate revocation
decision, deposed that the June 8, 2006 meeting was not for disciplinary
purposes, but rather for the purpose of informing the applicant about a pending
investigation into his conduct, and to inform the applicant that another
meeting would be scheduled once the investigation was complete. As Ms.
Ouellette states:
… It was not a meeting to
impose discipline – the 1st meetings never are – it was a
fact-finding meeting between management and Mr. Myers.
[40]
Once the investigation was completed and the respondent had made
further inquiries into the applicant’s use of the CRA’s electronic mail system,
a second opportunity to address all of the allegations against him should have
been given to the applicant. The preliminary nature of the June 8, 2006 meeting
created an expectation in the applicant that such an opportunity would be
provided. The excessive use of personal e-mails by the applicant, 3252 in two
months, was not known by the CRA on June 8, 2006, and was not disclosed to the
applicant before his “enhanced reliability status” was revoked. As mentioned
above, this was one of the two reasons for revoking the status.
[41]
The respondent alleges that the second meeting did not occur
because the applicant resigned before the CRA completed its investigation. I do
not find this to be an acceptable justification. By revoking his “enhanced
reliability status,” the respondent seriously compromised the applicant’s
ability to obtain future contracts within the public service. Because the
Director’s decision was going to have a continued impact on the applicant, he
should have been given the opportunity to answer the allegations against him,
regardless of the date of his resignation.
[42]
In
Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202, the Supreme Court of Canada held that in some instances a court
should disregard a breach of natural justice or procedural fairness where that
breach could not possibly have made a difference in the outcome of the decision
under review. As the Court stated at 228, per Justice Iacobucci:
In
light of these comments, and in the ordinary case, Mobil Oil would be entitled
to a remedy responsive to the breach of fairness or natural justice which I
have described. However, in light of my disposition on the cross-appeal, the
remedies sought by Mobil Oil in the appeal per se are impractical. While
it may seem appropriate to quash the Chairman’s decision on the basis that it
was the product of an improper subdelegation, it would be nonsensical to do so
and to compel the Board to consider now Mobil Oil’s 1990 application, since the
result of the cross-appeal is that the Board would be bound in law to reject
that application by the decision of this Court.
The
bottom line in this case is thus exceptional, since ordinarily the apparent
futility of a remedy will not bar its recognition…. On occasion, however, this
Court has discussed circumstances in which no relief will be offered in the
face of breached administrative law principles: e.g., Harelkin v. University
of Regina, [1979] 2
S.C.R. 561. As I described in the context
of the issue in the cross-appeal, the circumstances of this case involve a
particular kind of legal question, viz., one which has an inevitable answer.
In Administrative
Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that
fair procedure should come first, and that the demerits of bad cases should not
ordinarily lead courts to ignore breaches of natural justice or fairness. But
then he also states:
A distinction might
perhaps be made according to the nature of the decision. In the case of a
tribunal which must decide according to law, it may be justifiable to disregard
a breach of natural justice where the demerits of the claim are such that it
would in any case be hopeless.
In
this appeal, the distinction suggested by Professor Wade is apt.
[43]
In
this case, the applicant has not adduced any evidence that the decision
revoking his “enhanced reliability status” was unreasonable. At the same time,
the Court cannot make a Mobil Oil finding that the breach of the duty to
act fairly could not possibly have made a difference in the final decision. It
is possible that, after providing full disclosure, the applicant might have
been able to respond so that his “enhanced reliability status” would not have
been revoked. Clearly, the excessive use of personal e-mails at the office and
the e-mail representations that the applicant was acting on behalf on the CRA
on personal matters, are serious and legitimate concerns regarding the
applicant’s reliability. At the same time, the applicant is entitled to an
opportunity to respond to these allegations before the CRA acts on them.
[44]
For
these reasons, the duty of procedural fairness owed to the applicant was
breached. This constitutes an error of law so that the application must be
allowed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1)
this
application for judicial review is allowed with costs;
2)
the
decision of the CRA revoking the applicant’s “enhanced reliability status” is
set aside; and
3)
the
matter will be referred to another CRA officer to redetermine this decision
after first providing the applicant with opportunity to respond to the
allegations against him.
“Michael
A. Kelen”
Email this Content