Docket: T-1248-13
Citation:
2014 FC 631
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 27, 2014
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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ZOHRA DJILANI
and
BELHASSEN TRABELSI
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Applicants
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and
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THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants, Zohra Djilani and Belhassen
Trabelsi, and their four minor children, are subject to the Freezing Assets
of Corrupt Foreign Officials (Tunisia and Egypt) Regulations, SOR/2011 (Regulations),
which were adopted by the Minister of Foreign Affairs and International Trade (Minister)
following the events of the Arab Spring. This is an application for judicial
review of the Minister’s decision dated June 26, 2013, rejecting their application
for a certificate filed pursuant to section 15 of the Freezing Assets of
Corrupt Foreign Officials Act, SC 2001, c 10 (Act). By that application,
the applicants were seeking to exclude the amount of $109,680 from the
application of the Regulations to then transfer it into their lawyers’ trust
accounts.
[2]
For the following reasons, this application for
judicial review will be dismissed.
Factual
background
[3]
The applicants are citizens of Tunisia and they currently
live in Montréal with their four minor children.
[4]
Mr. Trabelsi is the brother-in-law of Zine
el-Abedine Ben Ali, the former President of Tunisia. Since March 23, 2011, he
has been subject to the Regulations as a “politically exposed foreign person”. Since
January 4, 2012, Mrs. Djilani and the couple’s children have also been declared
“politically exposed foreign persons”. According to section 3 of the
Regulations, the primary purpose of that designation is to prohibit any
financial transaction in Canada on frozen assets.
[5]
In February 2012, Mrs. Djilani and her children
filed an application pursuant to section 13 and subsection 14(2) of the
Act with the Minister to be excluded from the application of the Regulations.
That same day, the applicant also filed an application pursuant to section 15 of
the Act with the Minister to be issued a certificate excluding the amount of $178,040
from the application of the Regulations for their expected expenses for the
year 2012.
[6]
A few months later, the applicants were informed
that the Minister had rejected their two applications. They did not file an application
for judicial review of those decisions.
[7]
Instead, in December 2012, they filed a new
application for a certificate pursuant to section 15 of the Act for the
exclusion of $109,680 from the application of the Regulations. The conclusions
of their application were as follows:
[translation]
ALLOW this application
by January 15, 2013;
AUTHORIZE the applicants
to receive the amount of one hundred and nine thousand six hundred and eighty dollars
($109,680) for the six-month period starting the first of January 2013;
AUTHORIZE the applicants
to deposit the amount of seventy-nine thousand six hundred and eighty dollars ($79,680)
into the trust account of Donald KATTAN;
AUTHORIZE the applicants
to deposit the amount of thirty thousand dollars ($30,000) into the trust
account of the law firm Saint-Pierre, Leroux, Avocats inc. for extrajudicial fees
and disbursements.
[8]
In that new application, the applicants
explained that the amount must be used to pay for certain living expenses (including
counsel fees), but also luxury products and services such as a chauffeur for
the family, a non-subsidized private English school for the couple’s children
and their apartment, the monthly rent of which is $5,000.
[9]
After analyzing the record, the Deputy Minister
of Foreign Affairs and International Trade sent the Minister a document
entitled Memorandum for Action that contained his analysis and his
recommendation that the application for a certificate be granted in part and
that a certain amount be exempt from the application of the Regulations. The
Deputy Minister’s key findings were as follows:
a.
The purpose of the Act and the Regulations is to
preserve assets that have been supposedly misappropriated by the former regime,
while waiting for Tunisia to be able to provide the evidence required to recover
them, and not to prevent individuals from having access to the necessities of
life or to legal advice;
b.
The legislation does not prohibit paying certain
amounts or making other assets accessible to designated persons. In other
words, third parties are not prohibited from paying for their expenses through
their lawyers’ trust accounts;
c.
The certificate requested concerns new funds
from Hedi Djilani, the female applicant’s father, such that no assets
designated by Tunisia would be used;
d.
Canada has no evidence to suggest that the new
funds provided were illegally acquired, although Hedi Djilani is the subject of
corruptions allegations;
e.
Tunisia has not requested that Hedi Djilani be
subject to the legislation;
f.
Although the family has stated that the purpose
of the application for a certificate is to end the necessity of living off
charity from friends and family, this situation would not change even if the
certificate were issued;
g.
The request includes funds for luxury items such
as chauffeur service and private school;
h.
The transactions covered by the requested
certificate would not be illegal if the funds in question were deposited
directly in their lawyers’ accounts, rather than routed through the family’s
own account.
[10]
On June 26, 2013, the Minister rejected the
Deputy Minister’s recommendation and the applicants’ application for a
certificate by simply writing the following on the cover page of the Memorandum
for Action: “The Minister does not concur with the
recommendations”. Roland Legault, Interim Director of the Criminal,
Security and Diplomatic Law Division, communicated that decision to the
applicants in a letter dated July 3, 2013.
Issues
[11]
The following issues are raised in this
application:
1.
What is the appropriate standard of review of
the Minister’s decision?
2.
Is the Minister’s decision to refuse to issue
the requested certificate reasonable?
Analysis
Appropriate standard of review of the Minister’s decision
[12]
In accordance with Dunsmuir v New Brunswick,
2008 SCC 9 (Dunsmuir) at paragraph 62, the applicable standard of
review must be identified in the following manner: first, it must be ascertained
whether the jurisprudence has already determined in a satisfactory manner the
standard of review applicable to the type of case at issue. Second, where the
first inquiry proves unfruitful, it is necessary to proceed with the standard
of review analysis as described in Dunsmuir.
[13]
Because this Court has not yet determined the appropriate
standard of review of a decision by the Minister made in accordance with
section 15 of the Act, I must proceed with that analysis based on the relevant
factors, namely: (i) the presence or absence of a privative clause; (ii) the
purpose of the tribunal as determined by interpretation of enabling legislation;
(iii) the nature of the question at issue, and (iv) the expertise of the
tribunal. “In many cases, it will not be necessary to consider all of the
factors, as some of them may be determinative in the application of the
reasonableness standard in a specific case” (Dunsmuir at paragraph 64).
[14]
In this case, subsection 15(2) of the Act
provides the Minister with the discretionary authority to issue a certificate
in cases where the Minister determines that the property that is the subject of
an application for a certificate is necessary to meet the reasonable expenses
of the applicant and their dependants. The exercise of that discretion will
depend heavily on the facts in each case and on the nature of the application
for a certificate filed. The Minister’s discretion in that regard weighs in
favour of deference.
[15]
Furthermore, when there is a question of fact or
even where the legal and factual issues are intertwined and cannot be readily
separated, as in this case, the reasonableness standard of review must apply (Dunsmuir
at paragraph 53).
[16]
When applying the reasonableness standard, a
reviewing court must show deference and be 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 paragraph 47; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12; Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011
SCC 61). Furthermore, “the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes. . . . This means that courts should
not substitute their own reasons, but they may, if they find it necessary, look
to the record for the purpose of assessing the reasonableness of the outcome.”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 (Newfoundland Nurses) at paragraphs
14 and 15).
Reasonableness
of the Minister’s decision
[17]
The applicants submit that section 15 of the Act
creates an obligation for the respondent to determine the reasonableness of the
expenses submitted, and, if necessary, to issue a certificate. In this case,
the respondent apparently failed to respect those obligations.
[18]
The applicants add that, in his letter dated
July 3, 2013, the respondent stated that he was not [translation] “convinced that the information provided
established that all of the expenses claimed were reasonable”. As a result, the
applicants state that it is clear that some of the expenses claimed are
reasonable. From the moment some of the expenses claimed were deemed
reasonable, the respondent had the obligation to issue a certificate and could
not simply reject the application.
[19]
They also argue that the respondent’s position
that the family expenses should continue to be paid with the transfer of funds
by third parties into their lawyers’ trust accounts has a number of
consequences, namely the following:
a.
If the female applicant’s father were no longer
able to transfer funds to Canada, the applicants would have no means with which
to support themselves;
b.
The applicants could not have their assets
unfrozen for reasonable expenses, notwithstanding section 15 of the Act;
c.
The applicants could not receive a salary from
an employer in Canada or other forms of income for work in Canada because such
salaries or income would constitute “property” under subsection 4(3) of the Act;
d.
Any small expenses, including the cost of
groceries, cigarettes and the children’s spending money, must be paid from the
amounts deposited into their lawyers’ trust accounts;
e.
The applicants submit that that position is
unreasonable and damages their human dignity within the meaning of section 7 of
the Canadian Charter of Rights and Freedoms (Charter). To live with
dignity in Canada, a person must be able to work, receive the product of his or
her labour and have the means to pay current expenses, without disproportionate
interference or hardship.
[20]
First, I share the respondent’s opinion that
this Court cannot rule on the argument based on section 7 of the Charter
because the applicants failed to give him prior notice to that effect.
Furthermore, that argument is not supported by any serious analysis and,
generally, neither the right to hold employment nor the economic interests of
the applicants are protected by the Charter (Siemens v Manitoba
(Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6 at paragraphs 45 and
46). As a result, I will not consider that argument.
[21]
The respondent admits that Mr. Legault’s letter
suggests that some of the expenses claimed were reasonable. However, the
Minister’s decision is not in that letter, but instead on the cover page of the
Memorandum for Action, which was signed by him. However, there are no reasons
as to why the Minister did not follow the Deputy Minister’s recommendation.
[22]
Regardless, the respondent argues that, even if
some of the expenses were admitted to be reasonable, the issue is instead
whether the Minister was required to issue a certificate in the circumstances
of this case.
[23]
Upon reading this record in its entirety,
including the applicants’ application for a certificate, it does seem that the
applicants stated that the required funds will be coming from the female
applicant’s father and the couple’s friends, and that they will be transited
through their lawyers’ trust accounts. That is the status quo as for how things
have been done for the applicants since they arrived in Canada. The Minister is
not opposed to that method.
[24]
Moreover, the fact that the applicants have succeeded
in maintaining a somewhat luxurious lifestyle since their arrival in Canada is likely
to render the Minister’s decision reasonable. In fact, even though some of the
expenses claimed may be reasonable, the frozen funds were not “necessary” under
section 15 of the Act, to meet them. The wording in that provision indicates
that there are two relevant criteria, the reasonableness of the expenses and
the need to have access to the frozen funds. If all of the expenses of an
applicant have been paid by foreign funds since the applicant’s arrival in
Canada, it may not be necessary to use the frozen funds and, therefore, to
analyze the reasonableness of the expenses submitted.
[25]
Despite the fact that the Minister did not accept
the Deputy Minister’s recommendation, their respective positions are not
actually contradictory because the Deputy Minister acknowledged that the
applicants’ application, as formulated, did not concern the frozen funds.
[26]
While it would have been preferable for him to have
explained why he rejected the recommendation, upon reading the record in its
entirety, it is clear that that decision falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law. Newfoundland
Nurses ensures that the focus of judicial review remains on the outcome or
decision itself, and not the process by which that outcome was reached. A
reading of the record supports the Minister’s decision.
[27]
Finally, I would like to note that many of the
consequences raised by the applicants are hypothetical. They do not claim to
hold a job in Canada and their application for a certificate does not concern
amounts that could be the product of work in Canada.
Conclusion
[28]
In the circumstances of this case, it was
reasonable for the Minister to favour maintaining the status quo while their
refugee protection claim is being reviewed, unless obviously there was a change
to their personal situation. Where necessary, they could file a new application
with the Minister.
[29]
Consequently, their application for judicial
review will be dismissed with costs.
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