Docket: 15-T-51
Citation:
2016 FC 105
Vancouver, British Columbia, January 28, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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JOYCE WAI YEE
TAM
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Applicant
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and
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THE MINISTER OF
TRANSPORT
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Respondent
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ORDER AND REASONS
[1]
This is a motion in writing under Rule 369 of
the Federal Courts Rules, SOR/98-106, for an Order under Rule 8 for an extension of time to file an
application for judicial review of a decision by the Minister of Transport
pursuant to s. 18.1 (2) of the Federal Courts Act, R.S.C., 1985, c. F-7. The motion is opposed by the Minister.
[2]
The applicant has been employed at the Vancouver
International Airport by Air Transat since April 30, 2012. She held a security
clearance known as a Restricted Area Identity Card. On December 22, 2014, the
applicant received a letter from the Chief of Security Screening Programs for
Transport Canada. The letter advised her that her clearance was being reviewed
because of the receipt of adverse information that raised concerns as to her
suitability to retain a clearance. The letter set out information regarding
contacts by the applicant with persons described as being involved in gang
related activities related to organized crime on five occasions between October
17, 2005 and February 3, 2012.
[3]
The letter invited the applicant to provide
additional information outlining the circumstances surrounding the associations
and incidents and any other relevant information or explanation including any
extenuating circumstances within 20 days of receipt of the letter. The
applicant replied on January 12, 2015 setting out explanations pertaining to
the five incidents and relationships with the other individuals referred to in
the December 22, 2014 letter.
[4]
By letter dated August 14, 2015 from the
Director General Aviation Security, the applicant was advised that the Minister
of Transport had canceled her security clearance. This decision was based on a
review of the information outlined in the December 22, 2014 letter, the
applicant’s submission and the recommendation of the Transportation Security
Clearance Advisory Body. The letter concluded by noting that the applicant had
the right to seek a review of the decision to the Federal Court within thirty
(30) days.
[5]
In her affidavit in support of the motion the
applicant acknowledges having read the statement in the letter about the
limitation period but states that she did not appreciate its significance. She
contacted a lawyer on August 21, 2015 who had no related experience. She
contacted two other lawyers on August 24, 2015 but did not retain them because
the fees that they quoted to her were too high. Sometime later the applicant
noted a news article online mentioning her current counsel of record and
retained him on December 21, 2015. This motion for an extension of time was
filed on December 23, 2015.
[6]
The issue on this motion is whether the Court
should exercise its discretion to extend the 30 day deadline to allow the
applicant to file her late judicial review application.
[7]
The applicant submits that her affidavit
evidence satisfies the criteria set out by the Federal Court of Appeal in Canada
v Hennelly (1999), 244 N.R. 399, namely that she has demonstrated:
(i)
a continuing intention to pursue her
application;
(ii)
that the application has some merit;
(iii)
that no prejudice to the respondent arises from
the delay; and
(iv)
that a reasonable explanation for the delay
exists.
[8]
With regard to her intention to pursue the
application, the applicant submits that she did not have the resources to
retain counsel prior to the expiry of the 30 day limitation period. She says
that she did not receive any meaningful advice on the need to file in advance
of the deadline from the counsel she met with or her union representatives.
During the fall of 2015 she was also dealing with a significant illness in her
immediate family. Her delay in bringing the application was as a result of her
lack of understanding of the process as well as her inability to retain
counsel.
[9]
The applicant argues that her application has
some merit as the Director General Aviation Security made several errors in her
reasoning including failure to consider evidence, misapprehension of the
evidence and reaching a conclusion not supported by the evidence. She submits
that the respondent would not be prejudiced by the delay because “[t]he nature of the review is documentary and as such there
is no concern regarding the ability of each side to effectively argue their
positions…”.
[10]
The respondent contends that the applicant has
not provided the Court an adequate basis for it to exercise its discretion to
grant an extension. The respondent argues that, based on her own affidavit
evidence, the applicant has not demonstrated a diligent, continuing intention
to pursue her application. The grant of an extension would be contrary to the
public interests of finality, certainty and security that are necessary for the
administration of the air transport program. The applicant has not reasonably
explained the delay between August and December and the application, the
respondent submits, is bereft of any reasonable prospect of success.
[11]
The importance of limitation periods was
underscored by the Federal Court of Appeal in Canada (Attorney General) v
Larkman, 2012 FCA 204, at paragraph 87 where it was stated:
The need for finality and certainty
underlies the 30 day deadline. When the 30 day deadline expires and no
judicial review has been launched against a decision or order, parties ought to
be able to proceed on the basis that the decision or order will stand.
Finality and certainty must form part of our assessment of the interests of
justice.
[12]
The Hennelly criteria, often restated as
questions, guide the court in determining whether the granting of an extension
of time is in the interests of justice: Grewal v Canada (Minister of Employment
& Immigration), [1985] 2 F.C. 263 (C.A.). As noted in Larkman above,
at paragraph 62, the importance of each question depends upon the circumstances
of each case. And not all of these four questions need be resolved in the
moving party’s favour. For example, a compelling explanation for the delay may
lead to a positive response even if the case appears weak and a strong case may
outweigh a less satisfactory justification for the delay. The overriding
consideration is that the interests of justice be served.
[13]
In this instance, it is clear that the applicant
had received the notice of cancellation by August 21, 2015 as that is the date
on which she first sought legal counsel. The period of delay is, therefore,
approximately four months. The applicant had also been on notice since
December 22, 2014 that a review of her security clearance was underway. There
is no doubt that the applicant initially intended to pursue a judicial review
application. However, she failed to carry through on that intention until she
came across an online reference to her present counsel at some time prior to
December 21, 2015. This, in my view, does not demonstrate a diligent
continuing intention to pursue the application.
[14]
Nor has the applicant reasonably explained her
delay. She has ascribed it to a lack of awareness of legal procedures and lack
of confidence. Such explanations have been held by the Federal Court to be
unreasonable: Mutti v Canada (Minister of Citizenship and Immigration), 2006
FC 97; Thibodeau v Canada (Minister of Transport), 2002 FCT 386; Flores
Cabrera v Canada (Canada (Minister of Citizenship and Immigration), 2011 FC
1251. While the applicant also refers to her mother’s unfortunate diagnosis
with cancer, it is not clear how this prevented a 30-year-old woman from taking
action to protect her legal interests.
[15]
These concerns, on their own, may have been
insufficient to bar the exercise of the Court’s discretion in the applicant’s
favour. More fatal, in my view, is that she has failed to demonstrate that her
application for judicial review has some potential merit. Contrary to the
applicant’s argument, the letter from the Director General Aviation Security
does not demonstrate that Transport Canada ignored her evidence and merely
issued a boilerplate statement to her without explaining how it came to its
conclusion. It sets out the reasons why the Minister’s discretion was
exercised to cancel the clearance and refers to the admissions made by the
applicant in her response to the initial advisory letter.
[16]
This is not a case similar to Ho v Canada
(Attorney General), 2013 FC 865, cited by the applicant. In Ho,
Justice Harrington found a decision to revoke a security clearance to be
unreasonable because the Minister of Transport did not have evidence to contradict
some of that presented by the applicant. In this instance, the applicant has
acknowledged that she associated with individuals with gang ties in her early
20s. Her argument is that stale associations of this nature cannot be enough
to justify canceling her clearance. However, the Court has found that is not
unreasonable for the Minister to consider such associations notwithstanding a
lengthy period of elapsed time: Christie v Canada (Minister of Transport),
2015 FC 210. As noted by Justice Kane in Brown v Canada (Attorney General),
2014 FC 1081, at paragraph 71, the Minister is entitled to err on the side of
public safety. Accordingly, I see no prospect of success on the application
should it be allowed to proceed.
[17]
In the result, the motion for an extension of
time is dismissed. While the respondent has requested costs, the Court will
exercise its discretion not to award them in the circumstances.
ORDER
THIS COURT’S JUDGMENT is that the motion
for an extension of time is dismissed without costs.
“Richard G. Mosley”
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