Date: 20170330

Docket: A-56-16

Citation: 2017 FCA 63

CORAM:

NOËL C.J. WEBB J.A. WOODS J.A.

 

BETWEEN:

TRUNG KIEN HOANG

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Vancouver, British Columbia, on March 22, 2017.

Judgment delivered at Ottawa, Ontario, on March 30, 2017.

REASONS FOR JUDGMENT BY:	NOËL C.J.
CONCURRED IN BY:	WEBB J.A. WOODS J.A.

 

Date: 20170330

Docket: A-56-16

Citation: 2017 FCA 63

CORAM:

NOËL C.J. WEBB J.A. WOODS J.A.

 

BETWEEN:

TRUNG KIEN HOANG

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

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”

“I agree

Wyman W. Webb J.A.”

“I agree

J. Woods J.A.”

APPENDIX

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-56-16

(APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE SHORE OF THE FEDERAL COURT DATED JANUARY 19, 2016, NO. T-798-15)

STYLE OF CAUSE:	TRUNG KIEN HOANG v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Vancouver, British Columbia
DATE OF HEARING:		March 22, 2017
REASONS FOR JUDGMENT BY:		NOËL C.J.
CONCURRED IN BY:		WEBB J.A. WOODS J.A.
DATED:		March 30, 2017

APPEARANCES:

Andres E. Barker	For The AppELLANT
Michele Charles	For The Respondent

SOLICITORS OF RECORD:

Kent Employment Law Vancouver, British Columbia	For The AppELLANT
William F. Pentney Deputy Attorney General of Canada	For The Respondent