Date: 20100212
Docket: T-430-09
Citation: 2010 FC 147
Ottawa, Ontario, February 12,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
SIYANTHAN
XAVIER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
AND THE MINISTER OF TRANSPORT,
INFRASTRUCTURE AND COMMUNITIES
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Siyanthan
Xavier is a former employee of Air Canada Cargo at Pearson Airport. In
February 2009, the Minister of Transport cancelled Mr. Xavier’s transportation
security clearance (TSC), preventing him from working at the airport. The
Minister’s action resulted from criminal charges being laid against Mr. Xavier.
Those charges were later withdrawn.
[2]
Mr. Xavier argues
that the Minister acted unfairly, rendered an unreasonable decision and failed
to give adequate reasons. He asks me to order the Minister to reconsider. I agree
that the Minister acted unfairly and must, therefore, allow this application
for judicial review. It is unnecessary to address the other issues Mr. Xavier
raised.
II. Analysis
1. Factual background
[3]
Mr. Xavier applied for and was granted his TSC
in April 2007. He began working for Air Canada Cargo shortly thereafter. In
December 2007, Mr. Xavier was stopped by a police officer for a traffic
violation on airport property. A police officer searched his car. Mr. Xavier
was subsequently charged with possession of stolen property and possession of
falsified credit cards.
[4]
The manager of security and investigations for
the airport authority sent an e-mail to the chief of security screening stating
that he had received information that Mr. Xavier had been charged. Further
inquiries revealed that Mr. Xavier had also been charged with fraud in 2003 but
the charges had been withdrawn.
[5]
Subsequently, Mr. Xavier was sent a letter
informing him that his TSC was under review and requesting him to submit a
written statement about the charges. The letter was returned because the
Applicant had moved without providing the airport a forwarding address. In
February 2008, the TSC Advisory Board determined that Mr. Xavier’s security
clearance should be suspended. A letter informing him of the suspension was
sent to Mr. Xavier and, again, it was returned.
[6]
In March 2008, Mr. Xavier, not having received
the misdirected letters, inquired about the suspension of his TSC. He was told
to submit a statement regarding the charges and that the matter would be
reconsidered by the Advisory Body. Mr. Xavier submitted a statement but the
Advisory Board upheld the suspension.
[7]
In December 2008, the outstanding criminal
charges against Mr. Xavier were withdrawn. He was invited to provide another
written statement. His file was returned to the Advisory Body for
reconsideration and, in January 2009, the Advisory Board recommended that the
TSC be cancelled. On February 20, 2009, a letter was sent to Mr. Xavier
informing him that the Minister had cancelled his TSC on the recommendation of
the Advisory Board. As a result, he lost his job.
- Did the Minister
act unfairly?
[8]
The
Minister maintains that Mr. Xavier was given an opportunity to make submissions
to the Advisory Body before it recommended cancellation of his TSC to the
Minister. Accordingly, Mr. Xavier had an opportunity to participate in the
proceedings leading to the loss of his TSC. I disagree.
[9]
There
were three items before the Advisory Body not disclosed to Mr. Xavier. The
first was the e-mail sent just after Mr. Xavier was charged. That e-mail not
only informed the chief of security screening of the charges, but suggested
that there was a connection between the charges and Mr. Xavier’s job:
“Information provided suggests that there is a connection to the subject’s
airport employment”.
[10]
Second,
the Advisory Body had before it information from the Canadian Police Information
Centre (CPIC) about Mr. Xavier’s 2003 criminal charges that had been withdrawn.
[11]
Third,
the Advisory Body was provided a report from the airport intelligence unit.
That report referred to the following allegations against Mr. Xavier:
• he
was found in possession of 25 forged credit cards, various sets of
identification, and a significant amount of cash in U.S. and Canadian dollars;
• police
officers noticed him trying to hide something under the floor mat;
• two
credit cards were found on the floor of the vehicle;
• more
credit cards and other forms of identification were found in a hidden
compartment behind the ashtray.
[12]
As
mentioned, Mr. Xavier did make submissions to the Advisory Body. He stated that
he had been stopped for a traffic violation and the police had found someone
else’s wallet in his car. Not having received disclosure of the other
information put before the Advisory Body, he never had an opportunity to
address the allegation that he was found with numerous credit cards, various
sets of identification, and a large sum of cash. Nor did he have a chance to
answer the suggestion that he had tried to hide materials under the floor mat
of his car and had hidden a large number of credit cards in a secret
compartment. Finally, he was unaware of the suggestion that his alleged
criminal conduct was somehow related to his job.
[13]
The
Minister suggests that the degree of fairness owed to Mr. Xavier is relatively
slight, according to the factors outlined in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. Further, he suggests
that this Court found this to be so in Irani v.
Canada (Attorney General), 2006 FC
816 and Motta v. Canada (Attorney General) (2000), 180 F.T.R. 292. I note that
the latter cases dealt specifically with the granting of a TSC, not the
cancellation of one. Further, there were no allegations of misconduct against
the applicants and no risk that they would lose their jobs. Here, Mr. Xavier
has been accused of serious offences, and was fired. The duty of fairness owed to
him was greater than in the cases cited by the Minister. That duty must
include, at least, the disclosure to him of information to be put before the
Advisory Body and an opportunity to respond to it.
[14]
Here,
Mr. Xavier would have been aware of the CPIC information and could have
provided a response to it if he had wished to do so. However, he would have
been unaware of the content of the e-mail and the intelligence report. His
written submission to the Advisory Body is not commensurate with the accusations
against him. It makes no substantive response to them at all. This was both
unfair to him and put the Advisory Body in the awkward position of having to
make a decision without meaningful submissions from both parties before it.
III. Conclusion
and Disposition
[15]
In
my view, Mr. Xavier was treated unfairly by not being given disclosure of the
information considered by the Advisory Body. Therefore, he had no chance to
address the accusations against him in any meaningful way. I would, therefore, grant
this application for judicial review and remit the matter to the Minister for
reconsideration.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1. The
application for judicial review is allowed. The matter is referred back to the
Minister for reconsideration.
2. No question
of general importance is stated.
“James
W. O’Reilly”
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