Docket:
T-1559-12
Citation:
2014 FC 273
Ottawa, Ontario, March 20, 2014
PRESENT: The Honourable
Mr. Justice Russell
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BETWEEN:
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TINA CHARLEAN LORENZEN
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Applicant
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and
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TRANSPORT CANADA SAFETY & SECURITY
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This is an
application under s. 18.1 of the Federal Courts Act, RSC, 1985, c F-7
[Federal Courts Act] for judicial review of a decision of a delegate of the
Minister of Transport, Infrastructure and Communities [Transport Canada], dated
July 13, 2012 [Decision], which refused the Applicant’s application for a
Transportation Security Clearance [TSC] pursuant to s. 4.8 of the Aeronautics
Act, RSC, 1985, c A-2 [Act].
BACKGROUND
[2]
The Applicant is
challenging the Decision of Transport Canada not to issue her a Transport
Security Clearance [TSC], which has prevented her from continuing her
employment with Canadian North Airlines [Canadian North]. She worked as a cargo
agent for Canadian North in the Northwest Territories [NWT] from at least 2003
– first in Norman Wells and then in Yellowknife – before moving to Edmonton
with her family in April 2011. In order to continue working for Canadian North
in Edmonton, she needed a TSC to access secure areas of the airport. She applied
for the TSC in May 2011.
[3]
In accordance with
Transport Canada’s policies, a background check was performed and identified
certain concerns. The Applicant had checked a box on her application stating that
she had never been convicted of an offence for which she had not been pardoned,
but the background check showed a conviction in the NWT in May 1995, for
assault with a weapon. In addition, the Royal Canadian Mounted Police [RCMP] stated
in a report dated March 16, 2012 that:
•
On December 13, 2004
the RCMP in Normand Wells NWT received information, which they believed to be
credible, that the Applicant transported or placed a substantial amount of marijuana
on aircraft to be distributed in northern communities. The RCMP later
clarified, in an e-mail of April 27, 2012, that this was not a one-time event
but an activity that went on continually for a long period of time;
•
The Applicant owned a
residence in Yellowknife that she rented to an associate with a lengthy
criminal record, whom the Applicant used to distribute marijuana in
Yellowknife, paying her with marijuana as the associate was known to be a heavy
drug user;
•
On December 29, 2009,
an RCMP member was doing a walkthrough of a liquor establishment in Normand
Wells and could smell fresh marijuana coming from the Applicant and others who
were sitting with her; and
•
The associate’s
criminal convictions included assault, failure to comply with a probation
order, and failure to comply with an undertaking, and another charge of
uttering threats was withdrawn when she entered into a peace bond.
[4]
Based on this
information, Transport Canada sent the Applicant a letter on May 14, 2012,
stating that adverse information arose during the verification process that
raised concerns about her suitability to obtain a clearance, and that her TSC
application was to be reviewed by the Advisory Body [AB], which makes
recommendations to the Minister concerning clearances. The letter set out the
information received from the RCMP as well as the Applicant’s prior conviction,
and stated that her application was being reviewed by the AB because of that
information, her association with an individual involved in criminal activity, and
the misleading or false information provided on her application. The letter also
stated; “Transport Canada would encourage you to provide additional
information, outlining the circumstances surrounding the above noted criminal
conviction, incidents and association, and the fact that you misled the
minister, as well as to provide any other relevant information or explanation,
including any extenuating circumstances, within 20 days of receipt of this
letter.”
[5]
The Applicant
responded by e-mail on June 6, 2012, and attached a letter of reference from a
friend and former tenant of the Applicant, Leland Stroman, Manager Safety and
Security, Department of Transportation, Government of the NWT, attesting to her
good character. In her email, the Applicant claimed inter alia that she:
had never loaded illegal drugs onto aircraft as she took illegal activity very
seriously and would not jeopardize her employment; had never had contact with
the renters of her former house or been involved in any illegal activity with
them; and had never used illegal drugs. With respect to her previous
conviction, the Applicant claimed that she had believed that after five years
“a pardon was basically accepted within the RCMP detachment,” and that she had
held a security pass in Yellowknife after this conviction and it had simply
slipped her mind when she was completing the application form. She apologized
for the inaccuracy. She acknowledged that some of her friends in the NWT may
have had problems with drugs, but stated that these issues were unrelated to
her and she was simply in the wrong place at the wrong time.
[6]
On June 28, 2012, the
AB recommended that the TSC application be refused. The information in the RCMP
report, along with the fact that the Applicant “misled the Minister about the
existence of her criminal record,” led the AB to believe, on a balance of
probabilities, “that she may be prone or induced to commit an act or assist or
abet any person to commit an act that may unlawfully interfere with civil
aviation.” It stated that “[t]he applicant’s letter of reference did not
provide sufficient information that would persuade the Advisory Body to
recommend issuing a clearance.” The AB’s Record of Discussion also indicates
that “Ms. Lorenzen provided a written statement, however the Advisory Body
did not find it to be credible.” The AB noted that the Applicant wrote that she
had “never had any contact with the renters,” but her letter of reference was
from a former tenant.
[7]
Transport Canada’s Director General, Aviation Security [Minister’s Delegate] issued the Decision
denying the TRC on July 13, 2012, and advised the Applicant of this decision in
a letter of July 16, 2012 which closely mirrored the Record of Decision. This
Decision resulted in a suspension of the Applicant’s employment with Canadian
North, and it appears that her employment has now been terminated.
DECISION UNDER REVIEW
[8]
The Record of
Decision states that the Decision was based on a review of the file including
the concerns set out in Transport Canada’s letter to the Applicant of May 14,
2012, the Applicant’s written response e‑mailed on June 6, 2012, the
letter of Leland Stroman, the AB’s recommendation, and the Transportation
Security Clearance Program Policy [TSCP Policy].
[9]
The following
explanation for the Decision was provided:
The information related to Ms. Lorenzen placing illegal drugs on aircrafts
to be distributed in Northern communities, as well as her criminal conviction
for Assault with a Weapon, and the fact that Ms. Lorenzen misled the Minister
regarding her criminal record, raised questions regarding her judgment,
reliability and trustworthiness. This led me to believe that, on a balance of
probabilities, Ms. Lorenzen may be prone or induced to commit an act, or to
assist or abet another person to commit an act, that may unlawfully interfere
with civil aviation. I noted that Ms. Lorenzen provided a written statement as
well as a letter of reference from Leland Stroman; nonetheless, because of the
severity of the information in the RCMP report, its relevance to civil
aviation, and the fact that she misled the Minister, her submissions did not
contain sufficient arguments to address my concerns.
I therefore concur with the Advisory Board’s recommendation and refuse Ms.
Lorenzen’s transportation security clearance.
ISSUES
[10]
The following issues
arise in this application:
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Was the Decision of
the Minister’s Delegate unreasonable?
•
Was there a breach of
procedural fairness?
STANDARD OF REVIEW
[11]
The Supreme Court of
Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is settled in a satisfactory manner by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless, or where the relevant precedents appear to be inconsistent
with new developments in the common law principles of judicial review, must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis: Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at para 48.
[12]
The parties agree
that the standard of review for a decision of the Minister’s Delegate under s.
4.8 of the Act is reasonableness, and the standard of review with respect to
whether there has been a breach of procedural fairness is correctness: Fradette
v Canada (Attorney General), 2010 FC 884 [Fradette]; Clue v
Canada (Attorney General), 2011 FC 323 at para 14 [Clue]; Peles v
Canada (Attorney General), 2013 FC 294 at paras 9-10 [Peles]; Rivet
v Canada (Attorney General), 2007 FC 1175 [Rivet].
[13]
The Applicant submits
that the issues of procedural fairness that arise here are so inextricably
intertwined with the issue of the reasonableness of the Decision that the
“overriding standard of review applicable here is correctness.” I do not agree.
For the sake both of analytical clarity and adherence to established precedent,
a distinction between the two must be maintained and different standards of
review apply, as identified above.
[14]
When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 59 [Khosa]. Put another way, the Court should intervene only if
the Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
STATUTORY PROVISIONS
[15]
The following
provision of the Act are applicable in these proceedings:
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Granting,
suspending, etc.
4.8 The
Minister may, for the purposes of this Act, grant or refuse to grant a
security clearance to any person or suspend or cancel a security clearance.
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Délivrance, refus,
etc.
4.8 Le ministre
peut, pour l’application de la présente loi, accorder, refuser, suspendre ou
annuler une habilitation de sécurité.
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[16]
Decisions under this
provision of the Act are guided by the TSCP Policy. Relevant sections of that
Policy are set out below for convenience:
Aim
I.1
The aim of the Transportation Security Clearance Program Policy is the
prevention of unlawful acts of interference with civil aviation by the granting
of clearances to persons who meet the standards set out in this Program.
Definitions
I.2
(1) In this document:
[…]
"Advisory Body" means the Transportation Security Clearance
Advisory Body;
"clearance" means an authorization granted as the result of
checks conducted on a person for security purposes;
[…]
Objective
I.4
The objective of this Program is to prevent the uncontrolled entry into a
restricted area of a listed airport by any individual who
[…]
4. the Minister reasonably believes, on a balance of
probabilities, may be prone or induced to
•
commit an act that
may unlawfully interfere with civil aviation; or
•
assist or abet any
person to commit an act that may unlawfully interfere with civil aviation.
[…]
The Advisory Body
I.8
An Advisory Body shall review applicant's information and make
recommendations to the Minister concerning the granting, refusal, cancellation
or suspension of clearances.
ARGUMENT
Applicant
[17]
The Applicant argues that her
procedural rights were breached when the AB, and by extension the Minister’s
Delegate, found her response to Transport Canada’s letter of May 14, 2012 lacked credibility. Largely
as a result of this error, she says, the ultimate Decision was unreasonable.
Preliminary Issue
[18]
The Applicant acknowledges that
her affidavit and one of the exhibits to that affidavit contain new information
that was not before the AB or the Minister’s Delegate. However, she says this
information should be admitted based on the principle in Sha v Canada (Minister of Citizenship and Immigration), 2010 FC 434 [Sha] at para 18,
where Justice Zinn held that:
18 …Absent
prejudice to the opposing party… affidavit evidence that provides background
information relevant to a material issue before the Court on judicial review,
may be put before the Court; such affidavit evidence does not constitute
impermissible new evidence.
Procedural Fairness
[19]
The Applicant acknowledges that,
generally speaking, the duty to act fairly with respect to a new TSC
application is minimal, since the refusal of a new application typically does
not result in the withdrawal of any pre-existing rights. The Minister must
simply render a decision that was not based on an erroneous finding of fact
made in a perverse or capricious manner or without regard for the material
before him or her: Motta v Canada (Attorney General) (2000), 180 FTR 292,
[2000] FCJ No 27 at para 13 (TD) [Motta]; Irani v Canada (Attorney
General), 2006 FC 816 at paras 21-22 [Irani]; Pouliot v Canada
(Minister of Transport, Infrastructure and Communities), 2012 FC 347 at
para 9 [Pouliot]. In cases where an existing security clearance is being
revoked or not renewed, a somewhat higher standard of procedural fairness
applies: an applicant has a right to know the case to be met, and to be given a
meaningful opportunity to make representations: DiMartino v Canada (Minister
of Transport), 2005 FC 635 at paras 22-24, 33, 36 [DiMartino]; Xavier
v Canada (Attorney General), 2010 FC 147 at para 13 [Xavier]; Peles,
above, at paras 15-16.
[20]
The Applicant argues that it is
this second, higher standard of procedural fairness that applies here, for two
reasons. First, the Applicant says her circumstances are closer to those in DiMartino,
above, than in the cases dealing with initial TSC applications, because her
continuation in her then-current job and her long-standing employment with
Canadian North was dependent upon receiving the TSC. Citing the principles from
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paras 23-27 [Baker], the Applicant says the importance of the
decision to the individual applicant must be considered. As in DiMartino,
above, she argues, the importance of the decision for her was “quite
significant” since it would have a serious impact on her livelihood and she was
accused of serious offences which put her at risk of losing her employment. She
argues that the other factors from Baker also support a higher duty of
fairness in this context. Second, the Applicant claims that she held a security
pass for her work in Yellowknife, and that the AB did not definitively rule
this out. It simply stated that her previous work for Canadian North “either
did not require a Restricted Area Identity Card, or… previous clearances have
since been purged from the system due to retention periods.” Thus, in the
Applicant’s view, there is ambiguity on the record as to whether her
application was properly classified as “new.”
[21]
The Applicant does not take
issue with the sufficiency of the initial disclosure provided by the Respondent
of the concerns raised by the background check. She understood the case she had
to meet. Rather, she argues that she was not provided with a meaningful
opportunity to respond to the case against her. While acknowledging that she
was provided with a formal opportunity to respond, the Applicant argues that
substantively, this was not a meaningful opportunity to respond because
her response was dismissed as not being credible. This finding did not imbue
the Applicant’s response with any influential weight, and her submissions were
therefore not fully and fairly considered. The Applicant says that she should
have been given a further opportunity to address the issues or concerns that
informed this credibility finding, and that by not affording her such an
opportunity, the AB erred in its choice of procedure and breached her rights of
procedural fairness at the point at which it assessed her response: Madadi v
Canada (Minister of Citizenship and Immigration), 2013 FC 716 at para 6 [Madadi];
Ghasemzadeh v Canada (Minister of Citizenship and Immigration), 2010 FC
716 at para 27 [Ghasemzadeh].
Reasonableness of the Decision
[22]
The Applicant also argues that
she responded to each of the concerns identified in the Respondent’s May 14,
2012 letter, and the failure to give any real weight to those responses made
the Decision unreasonable. With respect to the non-disclosure of her previous
criminal conviction, she says she provided both an apology and a clear
explanation for the failure to disclose: she erroneously believed that a pardon
was “basically accepted” after five years, and having obtained a security pass
in Yellowknife after the conviction, it “totally passed [her] mind” when she
filled in the TSC application. The record does not show any basis upon which
this specific response was deemed to lack credibility. Further, the criminal
record in itself does not appear from the record to have been a concern to
Transport Canada, as the criminal record search bears a handwritten and
initialed notation stating: “Last and only conviction, 16 years ago, OK to
process.” The record shows that the real concern was the non-disclosure, and
rather than accepting her forthright and plausible explanation for this the AB
and the Minister’s Delegate characterized it in a nefarious tone, finding that
she “misled the Minister about the existence of her criminal record.”
[23]
With respect to the allegation
that she was transporting or placing substantial amounts of marijuana on
aircraft to be distributed in northern communities, the Applicant notes that no
further details, names or dates were provided, but she nevertheless took this
allegation very seriously and addressed it explicitly in her response letter.
She stated that she had never been charged or confronted with these accusations
and:
As a
long term employee with Canadian North I have never shipped any illegal drugs
to any communities and would never jeopardize my employment with the company. I
love my job very much and take illegal activity very serious and practice this
well and continue to be an honest employee within the company.
The
Applicant says this thorough and unequivocal denial was not given any serious
weight by the Respondent, with the AB’s summary even referring to the alleged
conduct as an “offence” rather than an allegation, and that no indication was
given as to why the Respondent did not find the Applicant’s claims to be
credible.
[24]
The Applicant says
she also responded explicitly to the allegation that she rented a residence to
an associate with a lengthy criminal record, and used that associate to
distribute marijuana in Yellowknife. Her response letter stated:
My application has not been approved due to false accusations made against
me, due to the fact of a renter I had in Yellowknife, NT. I have never had any
contact with the renters, nor have I ever had any illegal activity with them.
At no time have I ever been charged or confronted with any of the accusations
made against me. Our house at the time in Yellowknife was rented on a short
term basis till it was sold…
The Applicant calls attention to the use of the phrase “our house,” noting
that it was owned by her and her husband (with only his name on title), and says
her claim not to have had contact with the renters is therefore both logical
and plausible. The Applicant argues that, as with the other allegations noted
above, the Respondent gave no weight to this denial and gave no explanation.
The Applicant reads the AB’s reference to Mr. Stroman being a former tenant as
an “incredulous implication” that he was the tenant with a criminal record, and
notes that there is a complete lack of evidence for this conclusion.
[25]
With respect to the
allegation that an RCMP officer smelled fresh marijuana on her and others while
doing a walkthrough of a liquor establishment, the Applicant notes that her
response contained a categorical denial that she had ever done illegal drugs,
and an explanation that “[i]t seems to me that the people I know in Norman
Wells may have issues with illegal drugs but this has nothing to do with me and
I may have just been with the wrong people at the wrong time.”
[26]
The Applicant says
there is nothing on the record to indicate that the Respondent made any further
efforts or inquiries to resolve the discrepancy between its allegations and the
Applicant’s definitive responses. Rather, it simply “did not find [her
response] to be credible.” Similarly, there is no indication that the
Respondent gave serious consideration to the strong letter of reference
provided by Leland Stroman, which lauded her “high personal standards and
ethics.” The Applicant argues that the Respondent’s failure to give serious
consideration to her response or the letter of reference, or to make further
inquiries to resolve the discrepancy, makes the Decision unreasonable.
[27]
The Applicant also
distinguishes a number of other cases in which the denial or revocation of a
TSC has been found to be reasonable on judicial review. In Motta, above,
the concern was with the applicant’s criminal record itself, she says, while
there is no indication that the substance of the Applicant’s criminal record
was a basis for the TSC refusal in this case. In Lavoie v Canada (Attorney
General), 2007 FC 435, the applicant had admitted committing fraud and
impersonating an RCMP officer, and the fact that she was given a conditional
discharge did not change this, whereas here there has been no admission of
guilt. In Fontaine v Canada (Transport, Safety and Security), 2007 FC
1160 [Fontaine], the applicant did not deny his ties to members of a
criminal organization, whereas in this case the Applicant has categorically
denied all of the allegations against her. In Rivet, above, the
applicant had recent convictions for fraud, which occurred while she was in a
position of trust. Similarly, in Fradette, above, the applicant had a
recent conviction for fraud, in addition to older offences, and denied
responsibility for the fraud offence. In Russo v Canada (Minister of
Transport, Infrastructure and Communities), 2011 FC 764 [Russo], the
applicant had a lengthy criminal record and a recent conviction, and
acknowledged that he continued to use and purchase marijuana on a regular
basis. In Clue, above, where the applicant was accused of placing a
loaded handgun on an aircraft, a key finding was that Mr. Clue was
uncooperative, belligerent and obstructionist when confronted, and attempted to
excuse his conduct, whereas the Applicant in this case has demonstrated no
belligerence or obstructionism whatsoever. Further, there was in Clue
substantive evidence linking the applicant to the alleged conduct despite the
eventual withdrawal of the criminal charge, whereas in this case there are only
vague and general assertions from the RCMP based on “information they believe
to be credible.” The basis for believing this information to be credible
remains unexplained, the Applicant notes, and it is contradicted by the
specific and unequivocal assertions of the Applicant. In Pouliot, above,
there was a detailed police report setting out the applicant’s actions in
driving an associate to a bank where the associate committed a robbery. There
was no doubt about the applicant’s involvement, even if that involvement did
not meet the criminal threshold. Here, there is no reliable evidence or
detailed report connecting the Applicant to any criminal activity. Similarly,
there was a much stronger evidentiary basis linking the applicant in Thep-Outhainthany
v Canada (Attorney General), 2013 FC 59 to criminal activity (by her
husband) than exists in the present case. In Peles, above, the Applicant
made no effort to challenge the underlying facts related to drug charges, even
though those charges were eventually withdrawn. In MacDonnell v Canada
(Attorney General), 2013 FC 719 [MacDonnell], where the applicant
was alleged to be buying, using and selling cocaine but not charged with doing
so, the applicant’s counsel merely attempted to shift the onus of proof back
upon the Respondent, claiming that Transport Canada was under an obligation to
provide more information in support of its allegations, which the Court
rejected. By contrast, the Applicant here made a substantive effort to
challenge the underlying facts relating to the allegations against her.
[28]
In sum, the Applicant
argues that her circumstances are distinguishable from each of these cases, and
that the Respondent’s denial of the TSC in this case was unreasonable.
Respondent
[29]
The Respondent argues
that there was no breach of procedural fairness and the Decision of the
Minister’s Delegate was reasonable; the Applicant is asking the Court to
reweigh the evidence, which is not the appropriate role of the Court on
judicial review.
Preliminary Issue
[30]
The Respondent argues
that the new information in paragraph 12 of the Applicant’s affidavit and
exhibit E to that affidavit should not be considered or relied upon by the
Court, as it was not before the decision-maker: Ontario Assn. of Architects
v Assn. of Architectural Technologists of Ontario, 2002 FCA 218 at para 30,
leave to appeal ref’d, [2002] SCCA 316; Swain v Canada (Attorney General),
2003 FCA 434 at para 2. The Respondent says that the principle in Sha,
above, relied upon by the Applicant, relates only to general background
information that helps to provide context, not new factual information that is
relied upon by a party for a substantive argument. Here, the document in the
exhibit is tendered to (in the Applicant’s words) “affirm the veracity of one
of the Applicant’s claims to the Advisory Body,” and is therefore inadmissible
new evidence, as the Court found in Peles, above, at paras 11-13. The
Applicant could have placed the information before the Minister’s Delegate but
did not. The issue on judicial review is whether the Decision was reasonable on
the basis of the information before the Minister’s Delegate, not based on other
information that was not provided.
Reasonableness of the
Decision
[31]
The Respondent says
that s. 4.8 of the Act grants broad discretion to the Minister, and that in
exercising that discretion the Minister may consider any factor he or she
considers relevant, including criminal charges that do not result in a
conviction and evidence about a person’s character or propensities: Fontaine,
above, at para 78; Clue, above, at para 20. Air safety is an issue of
substantial importance and access to restricted areas is a privilege, not a
right. The Minister’s broad discretion is guided by the TSCP Policy, which does
not require proof of any unlawful act or past activity, or a belief that an
applicant will do something. It simply requires that the Minister, in
the circumstances, have a reasonable belief that the person may be prone
or induced to do some acts: Clue, above, at para 20; MacDonnell,
above, at paras 7, 29. Here, the Respondent says, it was reasonable for the
Minister’s Delegate to conclude that, on a balance of probabilities, the
Applicant may be prone or induced to commit an act that may unlawfully
interfere with civil aviation.
[32]
The Respondent argues
that, while the Policy mentions belief on a balance of probabilities, this is
not a formal burden of proof that the Minister’s delegate must meet in order to
be able to deny a TSC, because the TSC is a privilege and not a right. Rather,
there must be reasonable grounds to determine that the evidence available meets
the threshold of a balance of probabilities, and that the burden of dispelling
the decision‑maker’s concerns has not been met. If such reasonable
grounds are present, then the application can be reasonably denied.
[33]
Here, the Minister’s
Delegate had information, considered reliable by the RCMP, that went to the
heart of the Applicant’s security clearance, the Respondent says. It suggested
she was using her position to smuggle illegal drugs to communities in the NWT.
The Minister’s Delegate also had evidence that the Applicant had misled the
Minister in her application regarding her criminal history.
[34]
The Applicant denied
the allegations, but the Minister’s Delegate found the response to be
insufficient to resolve the concern, and the evidence supports this conclusion,
the Respondent argues. It was reasonable not to accept the Applicant’s blanket
denials or explanations as completely refuting all of the information that had
been received. It is clear that the AB and the Minister’s Delegate considered
the totality of the circumstances and preferred the evidence gathered from the
RCMP to the Applicant’s denials and explanations.
[35]
Moreover, the
Respondent argues, it was not the role of the Minister’s Delegate to
investigate matters further; the information before her was provided to the Applicant,
who did not indicate any issue with identifying the renter referred to, or in
otherwise refuting the evidence as she saw fit. It was open to the Applicant to
request further details, and she did not do so. If there was insufficient
information to respond to the allegations, that deficiency rests with the
Applicant. To suggest otherwise would mean that the AB and the Minister’s
Delegate must return to the Applicant and seek more information until they are
satisfied that she has met their concerns.
[36]
While the Applicant
has distinguished her circumstances from a number of cases where a decision
refusing a TSC was found to be reasonable, the Respondent says this is not a
proper approach to determining reasonableness. Rather, the proper approach is
to look at whether the Decision in the present case was reasonable.
[37]
In this regard, the
onus was on the Applicant to respond to the allegations in a manner that
resolved the decision‑maker’s concerns. The Minister’s Delegate was not
required to accept the Applicant’s version of events; she has broad discretion
in assessing the evidence in this highly discretionary area of decision-making.
Ultimately, the Applicant is arguing that she should have been believed, which
amounts to a request for the Court to reweigh the evidence. The Respondent says
that the reasoning of Justice Barnes in Clue, above, at para 21, applies
equally in the present case:
[21] It is not the role of the Court on judicial review to reweigh
the evidence or to substitute its views for those of the responsible
decision-maker. There was, in this case, a rational evidentiary basis for the
Director's decision and this application is accordingly dismissed.
Procedural Fairness
[38]
The Respondent argues
that the content of the duty of fairness in the context of a new application
for a TSC is settled by prior case law: after permitting an applicant to submit
the application in writing, the Minister need only render a decision that is
not based on an erroneous finding of fact made in a perverse or capricious
manner or without regard to the material before him or her: Motta,
above, at para 13; Irani, above, at paras 21-22; Pouliot, above,
at para 9. The Respondent says it is implausible that the Applicant could have
had a TSC clearance in Yellowknife in 2010-2011 without TC’s knowledge, so
there is no reason for the Court to treat the present case as one where there
was denial of a TSC renewal or a cancellation.
[39]
The Respondent argues
that attempts to raise the standard of procedural fairness by reference to
cases arising from another administrative context, such as Madadi and Ghasemzadeh,
both above, should be rejected: the standard of procedural fairness is
contextual and the context of a new TSC application has been reviewed by the
Court many times.
[40]
The Respondent also
says that while the Decision may have impacted a specific new job the Applicant
had planned to work at, the new requirement of a TSC was occasioned by the
Applicant’s voluntary move to Edmonton for non-work related reasons. Moreover,
denial of a TSC merely prevents access to secure areas. It does not prevent
employment in the airline industry generally, and the Applicant has not
established that it would have a “serious impact” on her livelihood in the Alberta labour market; she has merely asserted this to be true.
[41]
The Respondent argues
that it is clear that the standard of procedural fairness required on a new TSC
application has been met, and that even if the higher standard applicable to
TSC cancellation or revocation decisions is applied, the requirements of procedural
fairness have been met. In that context, the Applicant has a right to know the
case she has to meet, and to be given a meaningful opportunity to make
representations: DiMartino, above; Xavier, above. The Respondent
argues that both of these criteria have been satisfied.
[42]
In the Respondent’s
view, the argument that the Applicant should have been told about the AB’s
conclusions regarding credibility and offered an opportunity to respond amounts
either to an attempt to argue for a different standard of procedural fairness,
based on jurisprudence from another context, or a request for a reweighing of
the evidence in the guise of an argument of procedural fairness. The suggestion
that a failure to specifically outline credibility concerns to the Applicant
amounts to a breach of procedural fairness has, the Respondent argues, been
repeatedly rejected by the Court in this context: Peles, above, at paras
11-13; Russo, above, at para 56.
[43]
The Respondent says
the suggestion that the AB or the Minister’s Delegate had an obligation to do
further research or provide further and better particulars beyond what was
available to them has also been rejected: Clue, above, at para 17. The
decision-maker had sufficient evidence to justify denying the clearance, and
the burden shifted to the Applicant to disabuse the decision-maker of her
concerns, which the Applicant failed to do: MacDonnell, above, at para 34.
The suggestion that either the AB or the Minister’s Delegate had an obligation
to return to her with any or all concerns that arose from her response simply
has no basis in the jurisprudence.
[44]
Ultimately, the
Respondent argues, the Applicant was provided with an opportunity to respond to
the same information that the AB and the Minister’s Delegate had. She did not
ask for further particulars, and accordingly none were offered or sought. The
Applicant offered blanket denials, and did not claim any difficulty in
responding to the arguments. There was no breach of procedural fairness,
regardless of the standard applied, and the Decision was reasonable.
ANALYSIS
[45]
I agree with the
Respondent’s objection to the new information that the Applicant has attempted
to file with this application and that was not before the Minister’s Delegate.
[46]
I also agree with the
Respondent’s observation that the duty of procedural fairness in cases of this
nature is well-settled in the case law, and that it is not appropriate to
elevate the standard of fairness required by reference to other cases and other
contexts where different factors prevail.
[47]
The AB assessed the
case as an application for a new TSC and gave reasons for so doing. Although
the Applicant believes she may have acquired some kind of clearance in the
past, there is insufficient evidence to question the AB’s conclusions on this
issue.
[48]
This being the case,
the standard of procedural fairness required in this case is relatively minimal
and is as set out in Motta, above:
13 In the case at bar, we are dealing with a simple application for
clearance or a permit made by a person who has no existing right to that
clearance or permit and is not accused of anything. As the Minister's refusal
to grant access clearance does not involve the withdrawal of any of the
plaintiff’s rights, the latter can have no legitimate expectation that he will
be granted clearance (see Peter G. White Management Ltd. v. Canada (Minister
of Canadian Heritage) et al. (1997), 132 F.T.R. 89, and Cardinal v.
Alberta (Minister of Forestry, Lands and Wildlife), December 23, 1988,
Edmonton 8303-04015, Alta. Q.B.). In the circumstances, therefore, I consider
that the requirements imposed by the duty to act fairly are minimal and that, after
allowing the plaintiff to submit his application in writing as he did, the
Minister only had to render a decision that was not based on an erroneous
finding of fact made in a perverse or capricious manner or without regard for
the material before him. As no evidence was submitted that the decision
duly made by the Minister pursuant to the powers conferred on him by the Act
and Regulations was without basis, this Court's intervention is not warranted.
[Emphasis added]
[49]
This means that
Transport Canada was only obliged to allow the Applicant to submit her
application in writing, and make a decision with due regard to the material
before it and not in a perverse or capricious manner. Transport Canada did that in this case.
[50]
The Applicant
obviously feels aggrieved at the findings in the Decision and alleges that
credibility findings were made without giving her the opportunity to respond on
the issue of credibility. However, Parliament has said
(in s. 4.8 of the Act) that “The Minister may, for the purposes of this Act, grant or refuse to grant a
security clearance to any person or suspend or cancel a security clearance,” and the Minister / department has crafted a policy and process to
enable the Minister to exercise that discretion.
[51]
I see no procedural
unfairness on the facts of this case. Even if the higher standard applicable to
cancellations and revocations were to be applied, the Applicant was fully
informed of the allegations and the evidence she had to answer, and she had
every opportunity to make whatever submissions and advance whatever evidence
she felt would assist her. See DiMartino, above, and Xavier,
above. Neither the AB nor the Minister’s Delegate had an obligation to do
further research or provide further particulars. See Clue, above, at
para 17. They provided the Applicant with details of what was before them, which
the Applicant concedes was sufficient evidence to deny the TSC. The Decision only
involves a finding that the Applicant “may be prone or induced” to commit or
assist an act that “may unlawfully interfere with civil aviation.” This is not
the same thing as proof that something has occurred. The Minister simply has to
reasonably believe “on a balance of probabilities” that the Applicant “may be
prone or induced.” See Clue, above, at para 20.
[52]
There was certainly
sufficient evidence to cause the Minister’s Delegate to make such a finding.
The burden then shifted to the Applicant to disabuse the decision‑maker
of her concerns. The Applicant believes that she did this. She says that she
explained her omission of the criminal offence and she made categorical denials
of the other allegations against her. However, the Minister’s Delegate did not
have to accept the Applicant’s position on these issues and, in this case,
clear reasons were given for not doing so. It is possible to disagree with
these reasons but, in my view, it is not possible to say that they lack
justification, transparency and intelligibility or that the Decision does not
fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. The Court cannot simply re-weight the evidence and
reach a conclusion that favours the Applicant. See Khosa, above, at
paras 59, 61; Almon Equipment Ltd. v Canada (Attorney General), 2010 FCA
193 at para 62; League for Human Rights of B'nai Brith Canada v Canada, 2010 FCA 307 at paras 85, 91; Clue, above, at para 21.
[53]
It may be that what
the Applicant says about herself is true. The Court has no means of assessing
that. But that is not the issue. The issue is whether, given the allegations
and evidence before the Minister’s Delegate, the Decision that the Applicant
may be prone or induced to commit an act that may unlawfully interfere with
civil aviation was reasonable. I cannot say it wasn’t.
[54]
I can find no
reviewable error in the Decision.
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