ADMINISTRATIVE LAW
Judicial Review
Judicial review of Minister of Transport’s decisions to revoke applicants’ transportation security clearances (TSC), following Airport Restricted Area Access Clearance Review Board’s recommendation—Only issue procedural fairness— Recommendation, decision based on applicants’ association with known criminal—Applicants assumed Board’s recommendation based on their offer to act as sureties in high profile criminal case, subsequently informed Board had instructed accused’s lawyer to remove them as sureties— Report before Board contained other facts: Mrs. Kosta, one of applicants, accused’s girlfriend for number of years, had lived with accused until shortly before applied for TSC, was present at number of accused’s court appearances, testified on his behalf; in opinion of detective present during hearing, Mrs. Kosta would place boyfriend’s interests ahead of those of police or employer—With respect to other applicant, Mrs. DiMartino, report mentioning close friendship with Kosta for seven years; with her husband, would visit Mrs. Kosta and boyfriend on regular basis; knew of boyfriend’s criminal record; Mrs. DiMartino, husband willing to put up equity on their house toward bail—Report mentioning Crown attorney certain applicants not removed as sureties, thus challenging applicants’ credibility—Applicants arguing not given suffi-cient information to allow meaningful opportunity to have position considered by Board—Extent of duty of procedural fairness owed applicants herein to be determined by applying factors established in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: (i) nature of decision, process; (ii) statutory scheme; (iii) importance of decision on applicants’ rights, privileges; (iv) legitimate expectation of applicants; (v) choice of procedure made by decision maker —(i) As decision to revoke TSC involving three levels (CSIS, Director of Preventive Security or Director General, Security and Emergency Preparedness must believe reasons to doubt suitability of TSC holder, then Board must examine informa-tion, make recommendation to Minister, finally, Minister must decide), factor points toward more than minimal duty, but not to high level of procedural safeguard—(ii) statutory scheme not providing for appeal, but decision subject to judicial review, indicating greater procedural fairness required—(iii) importance of decision quite significant as applicants’ jobs at stake: Motta v. Canada (Attorney General) (2000), 180 F.T.R. 292 (F.C.T.D.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 distinguished— (iv) No evidence applicants could legitimately expect certain procedure would be followed before TSC revoked—(v) Act silent as to process to be followed, leaving total discretion to Minister to choose own procedure—All documents, including analyst’s report disclosed to applicants after final decision issued except for names of certain individuals; no reason given as to why detailed list of facts, opinions in intelligence report could not be given before applicants submitted views to Board—Duty of fairness not requiring full or formal hearing, but requiring applicants be afforded meaningful opportunity to present their views before final decision made—To do so, must know case they have to meet—Herein, meaningful opportunity not afforded to applicants—Although applicants may have little chance of success when matters reconsidered, Court could not conclude revocation was inevitable outcome— Minister herein breached duty of fairness; revocations set aside.
DiMartino v. Canada (Minister of Transport) (T‑814-03, 2005 FC 635, Gauthier J., order dated 17/5/05, 18 pp.)