Federal Court Of Appeal upholds lower court’s decision that Transport Canada Delegate Authority did not breach duty of procedural fairness in cancelling transportation security clearance on basis of past criminal charges

17. September 2019 0

Self-represented individuals engaged in an administrative process must be given a fair and meaningful opportunity to respond, meaning they must be given all the necessary information to enable a reasonable person to participate in the process. That standard is not subjective. Whether one did not in fact properly use such an opportunity because one failed to act as a reasonably diligent person is not relevant to the determination.

Administrative law – Decisions reviewed – Ministry of Transport – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Reasonableness

Ramos v. Canada (Attorney General), [2019] F.C.J. No. 805, 2019 FCA 205, Federal Court of Appeal, July 15, 2019, J. Gauthier and W.W. Webb JJ.A. and M. Rivoalen A.C.J

Mr. Ramos (the “Applicant”) was a cleaner and a manager at the Toronto Pearson International Airport. On October 6, 2017, the Ministry of Transport refused to reconsider its decision to cancel his transportation security clearance. The applicant applied for judicial review of that decision. It was upheld on review. The Applicant appealed.

In July 2015, the Applicant was charged with two incidents of inappropriate touching and sexual assault. He agreed to enter into a $500 peace bond in exchange for the Crown withdrawing the charges. As a result, he had no criminal record. On October 17, 2016, Transport Canada wrote to the Applicant advising him that the allegations contained in those charges raised concerns as to his suitability to retain a security clearance, and that his clearance would therefore be reviewed. The letter concluded by providing a website to access the relevant policy, encouraging provision of additional information, and providing the phone number of a representative, Leslie Mott, to discuss the matter further.

The Applicant did phone Ms. Mott, on October 28, 2016 and left a message. Ms. Mott returned his call and requested the Applicant call her back. The Applicant did not return her call, and there was no evidence that he then consulted with anyone else. Rather, on October 25, 2016, the Applicant had sent a fresh application for a security clearance to Transport Canada which was not received until a year later, and which did not address any of the concerns set out in the October 17, 2016 letter.

The Applicant’s security clearance was cancelled on September 29, 2017. After becoming aware of the decision on October 2, 2017, the Applicant called Transport Canada to advise he responded to the October 17, 2016 letter. The staff member who took the call (Mrs. Seguin) told him that no response had been received, that he should read the decision carefully to understand his recourse options, and that he was free to resend the document he referred to but there was no guarantee it would be reviewed again. Mrs. Seguin then e-mailed the Applicant confirming he had until October 6, 2017 to provide his submissions, which an authorized person would have to determine demonstrated a “material change in circumstances” in order to warrant a reconsideration of the decision.

The Applicant never asked for an extension of time, but did take steps by consulting his criminal lawyer, who referred him to the lawyer who became his counsel in this matter. They met for the first time on October 10, 2017, and his counsel wrote a letter dated October 13, 2017 seeking reconsideration of the decision. Meanwhile, Transport Canada had written to the Applicant on October 6, 2017, advising that his request for reconsideration was refused. In response to his October 13, 2017 letter, counsel for the Applicant was advised on October 17, 2017 that refusal of his client’s request had already been issued. On October 25, 2017, the Applicant filed a notice of application for judicial review of the October 6, 2017 decision. The Federal Court dismissed that application.

At issue on appeal was whether the Federal Court erred in refusing to grant the Applicant’s proposed amendment to change the decision under review from that of October 6, 2017 to that of October 17, 2017; whether there was a breach of procedural fairness; and whether the October 6, 2017 decision was reasonable.

The Court of Appeal upheld the decision not to allow the proposed amendment, in considering the late timing of the motion without explanation for that timing, its impact on the overall procedure, the fact that the decision sought to be reviewed had already been changed once, and the eventual chances of success of an amended application.

The Court of Appeal held that there was no breach of procedural fairness. It was held that the details included in the October 17, 2016 letter were sufficient to meet the duty of fairness, and that the Applicant ought to have known the case against him. In making this determination, it was held that one must look at what a reasonably diligent person in the same circumstances would have understood or done. Whether one did not in fact properly use a fair and meaningful opportunity to respond because one failed to act as a reasonably diligent person is not relevant. The standard is not subjective.

It was held that any reasonable self-represented person would have taken the letter of October 17, 2016 seriously and would have at least returned Ms. Mott’s call. The Applicant was provided with an opportunity to make submissions, but failed to provide any information or explanation not already known to the Minister’s delegate which might justify reconsideration of the recommendation to cancel his security clearance. There was no duty on the Minister to do more. Administrative staff do not have to act as counsel for individuals involved in their own administrative processes, or to determine whether there would any circumstances that could support reconsideration. They only need to provide information available to them as to the process itself.

Lastly, the Court of Appeal held that the October 6, 2017 decision was reasonable. Neither party argued grounds for reconsideration other than those outlined in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, and the only ground outlined in Chandler applicable in this case was said to be the alleged breach of procedural fairness. There was found to be no breach.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at mclark@harpergrey.com.

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