Docket: A-56-16
Citation: 2017 FCA 63
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CORAM:
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NOËL C.J.
WEBB J.A.
WOODS J.A.
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BETWEEN:
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TRUNG KIEN
HOANG
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Appellant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
NOËL C.J.
[1]
This is an appeal brought by Trung Kien Hoang
(the appellant) against a decision of the Federal Court (2016 FC 54), wherein
Shore J. (the Federal Court judge) dismissed his application for judicial
review of a decision of the Canada Human Rights Commission (the Commission) not
to refer his complaint against the Minister of Transport, Infrastructure and
Communities (the Minister) to the Canadian Human Rights Tribunal (the
Tribunal).
[2]
The complaint alleges that he was subject to
discrimination on a prohibited ground (family status) when the Minister denied
his application for security clearance, which was a prerequisite for his
continued employment at the Vancouver International Airport.
[3]
The Commission was satisfied that there was no
need to refer the complaint to the Tribunal because although a prima facie
discrimination was established, there was bona fide justification for considering
the appellant’s family status in determining whether he should be security
cleared.
[4]
The appellant maintains that in so holding the
Commission misapplied the test for establishing a bona fide
justification under the Canadian Human Rights Act, R.S.C., 1985, c H-6
(the Act), and that the Federal Court judge erred in not intervening on this
and various other grounds.
[5]
For the reasons which follow, I would dismiss
the appeal.
[6]
The provisions of the Act which are relevant to
the analysis are reproduced in the appendix to these reasons.
Background
[7]
The appellant is a Hong Kong native who became a
Canadian citizen in 1995. He was hired as a station attendant for Air Canada,
contingent on obtaining a Transportation Security Clearance (TSC) from the
Minister. Upon applying for his TSC in October of 2010, the appellant was given
a temporary restricted area identification card and was deployed in his
position.
[8]
While the appellant’s TSC application was
pending, it was brought to the attention of the Minister that the appellant’s
father had been found guilty of trafficking in drugs, that his brother had been
found in possession of heroin and crack cocaine, and that the appellant was
stopped by the police in 2009 with marijuana in the vehicle he was driving. The
Minister gave the appellant an opportunity to comment on the accuracy of this
information, which he did. A few months later the appellant’s TSC application
was rejected and he was ultimately terminated.
[9]
The appellant sought judicial review of the
Minister’s decision rejecting his TSC application. On consent, the decision was
quashed and the matter was returned to the Minister for reconsideration. In
February of 2013, the appellant’s TSC application was again denied.
[10]
Rather than having this second refusal
judicially reviewed, the appellant filed a complaint before the Commission alleging
discrimination on the basis of family status under section 5 of the Act.
[11]
An investigation officer (the investigator) was
appointed to assist the Commission in determining whether further inquiry by
the Tribunal was warranted (Appeal Book, p. 210). The investigator performed a
two-step inquiry into the appellant’s complaint, which she understood to be the
denial of a security clearance on the basis of alleged criminal behavior of
family members (Appeal Book, p. 211).
[12]
Based on the evidence before her, the
investigator determined that the appellant’s family status, namely his
relationship with his father and his brother, was a factor considered by the
Minister in rejecting his TSC application (Appeal Book, p. 217).
[13]
The investigator went on to consider whether the
Minister had a bona fide justification for this exclusion. In so doing,
she applied – without referring to its origin – the Meiorin/Grismer
test for discrimination set out by the Supreme Court in British Columbia
(Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3
[Meiorin] and British Columbia (Superintendent of Motor Vehicles) v.
British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Grismer].
She framed the questions to be answered as follows (Appeal Book, pp. 212-213):
(i) Was the
request for a security clearance and the security clearance carried out
pursuant to an established policy?
(ii) Was the
policy created for a legitimate security-related purpose related to the job in
question?
(iii) Is the policy
based upon an honest and good faith belief that it is necessary to fulfill the
legitimate security purpose in the context of the job in question?
(iv) Is the
policy or standard reasonably necessary to meet the legitimate security purpose
in the context of the job in question?
[14]
Under question (i), the investigator found
that the practice at issue was the “exercise of
discretion by the Minister relating to the issuance of a security clearance”
as provided under section 4.8 of the Aeronautics Act, R.S.C., 1985, c
A-2 (Aeronautics Act) which allows the Minister to grant, refuse, suspend or
cancel a security clearance (Appeal Book, p. 217).
[15]
As to question (ii), she held that this practice
“was created pursuant to the [Minister’s] mandate to
serve the public through the promotion of a safe, secure, efficient and
environmentally responsible transportation system in Canada” by means of
the Transportation Security Clearance Program (TSCP) (Appeal Book, p. 218). She
added that the Minister’s practice “is in place to mitigate
the risk posed by individuals who may be a threat to aviation or maritime
transportation” (Appeal Book, p. 218).
[16]
In answering question (iii), the investigator
found that this practice was established in good faith, in the belief that it
is necessary for the fulfilment of a safe and secure transportation system (Ibidem).
The Minister had argued that the “purpose of the TSCP
is to reduce the risk of security threats by preventing unlawful interference
with both the civil aviation and marine transportation systems by conducting
background checks on airport and marine workers who perform certain duties”
(Ibidem). In reaching her conclusion, the investigator could not find
any evidence to suggest that the Minister was not acting in good faith (Ibidem).
[17]
Lastly, she held that the issue to be resolved
under question (iv) was whether the Minister could justify taking into consideration
the conduct of the appellant’s family members in the denial of the TSC
application (Appeal Book, p. 219). Given the nature of the appellant’s position
at Air Canada, she found that “the [Minister’s]
practice is reasonably necessary to ensure, to the extent possible, that
airport employees are not prone or induced to assist or abet any person to
commit an act that may unlawfully interfere with civil aviation” (Appeal
Book, p. 220). She also noted that those victimized by the TSCP had available
to them avenues to challenge the Minister’s decision (Appeal Book, p. 219).
[18]
Following a review of the complaint, the investigator’s
report and the appellant’s response to it, the Commission found that the
practice of considering criminal antecedents of family members in determining
whether a TSC should be issued was justified as reasonably necessary. The
Commission further found that the TSCP did not provide for a blanket
disqualification for all applicants whose family members have criminal
antecedents, but was rather to be applied on a case-by-case basis. The
complaint was therefore screened out, the Commission being satisfied that there
was no need for proceeding to an inquiry before the Tribunal (Appeal Book, pp.
207-208).
Decision of the Federal Court Judge
[19]
The Federal Court judge dismissed the judicial
review application brought against the decision of the Commission. It suffices
to say for present purposes that he found the decision of the Commission not to
refer the complaint for further inquiry before the Tribunal to be reasonable.
He further rejected a procedural fairness argument raised by the appellant,
which argument is reiterated on appeal, and further addressed below.
Alleged Errors
[20]
In support of his appeal, the appellant alleges
that the Commission made a number of errors, which the Federal Court judge
failed to correct. Specifically, the “Commission
misapplied and improperly considered the test for establishing a bona fide
justification where prima facie discrimination was established”
(Appellant’s Memorandum, paras. 4 and 71-95). According to the appellant, the
Commission considered the correct test, but “limited
its analysis to the Minister’s broad mandate and considered the importance of
the Minister’s general role in assessing persons for a TSC without considering
the specific issue in front of it: whether the refusal of [his] TSC application
because of the identify of his family members was supportable as a [bona fide
justification]” (Appellant’s Memorandum, para. 74).
[21]
The appellant’s specific contention is that both
the investigator and the Commission “missed the
substance of the Complaint and the issue that was before it [namely] whether
the Minister’s denial of [his] TSC because of the identity of his family
members was justified” (Appellant’s Memorandum, paras. 75 and 77). In
the same vein, the appellant asserts that the Commission erroneously narrowed
its jurisdiction in adopting the investigator’s flawed analysis (Appellant’s
Memorandum, paras. 96-100).
[22]
The appellant further takes issue with the
Commission’s finding that the TSCP is not applied as a “rigid
rule” (Appellant’s Memorandum, paras. 102-103 referring to the Commission’s
decision, Appeal Book, p. 207). He submits that the record does not support this
finding given that the “Minister presented no such
evidence” (Appellant’s Memorandum, paras. 101-106). The appellant also maintains
that it is immaterial if the Minister considered other factors – such as his
own past – in refusing to grant his TSC given that all he had to prove was that
discrimination was one of the factors behind the refusal (Appellant’s
Memorandum, paras. 107-113).
[23]
The appellant further reiterates that the
Commission breached its duty of procedural fairness by not interviewing his
mother, thereby limiting unduly the scope of its investigation. According to
him, her evidence was “obviously crucial evidence”
in order to properly understand his relationship to his father and brother
(Appellant’s Memorandum, paras. 117-118).
Analysis and disposition
[24]
In an appeal from a decision of the Federal
Court disposing of a judicial review, this Court must determine whether the
judge properly identified the standard of review and applied it correctly (Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, para. 45
[Agraira]). The parties submit, and I agree, that the Federal Court
judge properly identified reasonableness as the standard against which decisions
of the Commission rendered pursuant to subparagraph 44(3)(b)(i) of the
Act must be assessed (Bell Canada v. Communications, Energy and Paperworkers
Union of Canada, [1999] 1 F.C.R. 113 (CA), para. 38).
[25]
While there is a debate as to the standard of
review applicable to the procedural fairness argument (Mission Institution
v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, paras. 79 and 89; Bergeron
v. Canada (Attorney General), 2015 FCA 160, paras. 67-71), I am willing to
dispose of this argument applying the standard that is most favourable to the
appellant and which the Federal Court judge adopted i.e. correctness.
[26]
The question therefore is whether the Federal
Court judge applied these standards correctly. In this respect, Agraira invites
an appellate court to step into the shoes of the judge and to focus on the
administrative decision de novo rather than looking for potential errors
by the reviewing court (Agraira, para. 46 citing Merck Frosst Canada
Ltd. v. Canada (Health), 2012 SCC 3, para. 247).
[27]
At the screening stage, the question is “whether there is a reasonable basis in the evidence for
proceeding to an inquiry” (Richards v. Canada (Public Safety and
Emergency Preparedness), 2008 FCA 341, para. 7 considering subsection 44(3)
of the Act). The investigator understood that this was the issue which the
Commission had to decide, as evidenced by the following passage of her report
(Appeal Book, p. 210):
The Commission members do not determine whether discrimination
has actually occurred, but whether a complaint requires further inquiry by
the Canadian Human Rights Tribunal. In determining whether or not to refer a
complaint for further inquiry, the Commission members take into
consideration all of the circumstances of the complaint. (Emphasis added.)
[28]
Given the nature of the complaint, the
Commission had to consider whether the complaint involved a prohibited ground
of discrimination listed under section 3; if so, whether the facts established
the existence of the alleged discriminatory practice under section 5; and if
so, whether the Minister’s practice was justified by a bona fide
justification as provided for in paragraph 15(1)(g) of the Act.
[29]
Only the last consideration is at issue in this
appeal.
[30]
The appellant maintains that the substance of
his complaint was not addressed given that the investigator focused her
analysis on the Minister’s exercise of discretion rather than on the question
whether the Minister’s practice was supported by a bona fide
justification. However, this is a distinction without a difference as it is
clear from the investigator’s report that she found the Minister’s exercise of
discretion to be justified because there was a bona fide justification
for the Minister’s practice in this case.
[31]
This is how the Commission understood her report
as evidenced by the following extract from the decision: “[t]he Assessment Report concludes that when assessing an
application for a security certificate the Minister considers the identity of
an applicant’s family members which may be considered a discriminatory practice
on the basis of family status”, but that “the
Assessment Report further concludes that such a practice is justified as
reasonably necessary” (Appeal Book, p. 207).
[32]
Against this background, it can be seen that the
investigator properly applied the Meiorin/Grismer test. Under the
first part of the test, she held that the issuance of the security clearance is
rationally connected to the purpose of promoting a safe and secure
transportation system.
[33]
As to the second part of the test, the investigator
found no evidence to suggest that the Minister was not acting in good faith.
There is nothing on the record that can alter this conclusion.
[34]
Under the third part of the test, the
investigator found that the Minister cannot accommodate persons with the
characteristics of the appellant without incurring undue hardship. This is
where the investigator puts to rest any suggestion that she did not properly
consider the specifics of the appellant’s case. In her words (Appeal Book, p.
220):
38. […] Based on
all of the evidence gathered during this assessment, the [Minister’s] practice
is reasonably necessary to ensure, to the extent possible, that airport
employees are not prone or induced to assist or abet any person to commit an
act that may unlawfully interfere with civil aviation.
39. Finally the
nature of the job in which the [appellant] was employed, needs to be examined.
As a station attendant, the [appellant] was responsible for loading and
unloading luggage to and from commercial aircrafts. It is therefore reasonable
to assume that the [Minister] is required to obtain and consider any and all
information available, including associates and family members, when evaluating
an individual’s suitability for the job. In this particular case, it is reasonable
that the [Minister] would have legitimate concerns about the [appellant’s]
suitability, given both his father and his brother’s contact with the law with
respect to narcotics. By retaining the [appellant] in his employment, the risk
of unlawful interference with civil aviation, either real or perceived, was
there. On a balance of probabilities, the [Minister] concluded that the risk
was sufficient enough that it could not justify the issuance of a security
clearance to him.
[35]
The appellant insists that the investigator
should have delved further into his relationship with his father and brother in
order to determine if the perceived risk was real. I disagree. The investigator
fully explained the rationale for the concern, and to the extent that the
appellant was aware of facts, circumstances or information which would
alleviate the perceived risk, it was incumbent upon him to bring these to the
attention of the investigator.
[36]
The appellant having failed to do so, it was
reasonable for the investigator and the Commission after her, to conclude that
a referral of the complaint to the Tribunal was not warranted in this case.
[37]
As to the alleged breach of procedural fairness,
the appellant had the opportunity to indicate to the investigator why his
mother’s evidence would have been “obviously crucial”,
but again did not see fit to do so. This is why the Federal Court judge rejected
the appellant’s contention on this point (Reasons, para. 60), and I can find no
fault in that regard.
[38]
For the above reasons, I would dismiss the
appeal. The respondent is seeking costs which I would fix at $2,500 inclusive
of disbursements.
“Marc
Noël”
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“I agree
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Wyman W. Webb J.A.”
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“I agree
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J. Woods J.A.”
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