Federal Appeal

Administrative Law

Duty to act fairly
Cancellation of security clearance upheld on judicial review and further appeal

Appellant, licensed aeronautics technician and mechanic, required access to restricted areas available only to employees with security clearance granted by Minister of Transport, Infrastructure and Communities of Canada under Aeronautics Act (Can.). Minister revoked appellant’s security clearance following RCMP report regarding importation of narcotics. In absence of sufficient evidence, RCMP did not lay criminal charges. After receiving submissions from appellant, Transportation Security Clearance Advisory Body recommended cancellation of appellant’s security clearance. Minister followed recommendation. Federal Court dismissed appellant’s application for judicial review, finding that Minister’s decision met requirements for procedural fairness and was reasonable on merits. Appellant’s appeal dismissed. Decision is of enormous personal importance where person’s employment is dependent on maintaining security clearance. Act and Canadian Aviation Security Regulations give Minister great deal of discretion, providing that Minister may grant security clearance to person considered fit from transportation security perspective. Nature of decision and statutory scheme militate towards reduced levels of procedural fairness. Minister administered security clearance with assistance of Advisory Body in accordance with Transportation Security Clearance Program Policy, which sets out process. Decision was important both to individuals affected and to public interest in safety and security. Appellant knew case against him, was aware of Minister’s concerns and evidence that could ground decision to revoke security clearance. Minister and Advisory Board weighed evidence and considered appellant’s response. Neither Minister nor Advisory board was under obligation to hold interview with appellant. Federal Court was entitled to reject appellant’s new evidence. Judicial review of administrative decisions are to proceed on basis of information before decision-maker unless evidence relates to procedural fairness or decision-maker’s jurisdiction. Minister’s decision on merits was reasonable and supported by evidence. Minister considered RCMP investigation results, Advisory Committee’s recommendation and appellant’s submissions. Facts were reviewed in light of possibility of unlawful interference with civil aviation.

Henri v. Canada (Attorney General) (Feb. 8, 2016, F.C.A., Johanne Trudel J.A., Richard Boivin J.A., and Yves de Montigny J.A., A-574-14) Decision at 251 A.C.W.S. (3d) 366 was affirmed. 262 A.C.W.S. (3d) 279.

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