A-748-88
Robert Thomson (Appellant) (Applicant)
v.
Her Majesty the Queen as represented by the
Department of Agriculture, the Deputy Minister
of Agriculture (Respondents) (Respondents)
INDEXED AS: THOMSON v. CANADA (DEPUTY MINISTER OF
AGRICULTURE) (CA.)
Court of Appeal, Pratte, Urie and Mahoney
JJ.A.—Ottawa, May 16 and 17, 1990.
Judges and courts — Appeal from trial judgment refusing
certiorari and mandamus — Notwithstanding Court of Appeal
decision Deputy Minister required to follow recommendation
of Security Intelligence Review Committee and grant security
clearance, Deputy Minister maintaining refusal to do so —
Deputy Minister not ordered to grant clearance as outside
Court of Appeal's jurisdiction in that Deputy Minister's deci
sion not subject to s. 28 review — Court of Appeal's pro
nouncement as to Deputy Minister's obligation not obiter
dictum and Trial Judge bound thereby.
Security intelligence • — Appellant denied government
employment in spite of Security Intelligence Review Commit
tee's recommendation — F.C.A. holding Deputy Minister
bound by SI RC recommendation but Court lacking jurisdic
tion to order compliance — Trial Division Judge, in refusing
prerogative remedies, stating not bound by obiter pronounce
ment by Court of Appeal — Trial Judge erred in not following
binding decision — Deputy Minister ordered to grant security
clearance.
Public service — Selection process Deputy Minister of
Agriculture denying employment security clearance in spite of
recommendation of Security Intelligence Review Committee —
F.C.A. concluding Deputy Minister bound by SIRC recom
mendation but lacking jurisdiction to order compliance —
Trial Division refusing prerogative relief — F.C.A., on appeal,
ordering Deputy Minister to grant security clearance.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Security Intelligence Service Act, ' R.S.C.,
1985, c. C-23, s. 52(2).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 28, 52(b)(î).
Financial Administration Act, R.S.C., 1 . 985, c. F-11, s.
13(I).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
s. 113(1).
CASES JUDICIALLY CONSIDERED
REVERSED:
Thomson v. Canada (Deputy Minister of Agriculture),
[1989] 1 F.C. 86; (1988), 21 F.T.R. 254 (T.D.).
CONSIDERED:
Thomson v. Canada, [1988] 3 F.C. 108; (1988), 50
D.L.R. (4th) 454; 31 Admin. L.R. 14; 84 N.R. 169
(C.A.).
COUNSEL:
David J. Jewitt for appellant (applicant).
Ivan G. Whitehall, Q.C. for respondents
(respondents).
SOLICITORS:
Nelligan/Power, Ottawa, for appellant (appli-
cant).
Deputy Attorney General of Canada for
respondents (respondents).
The following are the reasons for judgment of
the Court delivered orally in English by
MAHONEY J.A.: The Deputy Minister of
Agriculture refused to grant the appellant a secu
rity clearance and, for that reason only, refused
him employment notwithstanding the recommen
dation of the Security Intelligence Review Com
mittee made pursuant to subsection 52(2) of the
Canadian Security Intelligence Service Act,
R.S.C., 1985, c. C-23. In a reported judgment,
[Thomson v. Canada] [1988] 3 F.C. 108 (C.A.),
this Court held that the Deputy Minister was
required to give effect to the recommendation and
grant the security clearance but that it was with
out jurisdiction, under section 28 of the Federal
Court Act, R.S.C., 1985, c. F-7, to order him to do
so because the refusal was not a decision or order
subject to section 28 review. The Deputy Minister
maintained his refusal and the appellant sought
certiorari and mandamus in the Trial Division. In
a reported decision, [Thomson v. Canada (Deputy
Minister of Agriculture)] [1989] 1 F.C. 86, the
learned Trial Judge concluded that this Court's
decision as to the Deputy Minister's obligation was
obiter dictum and refused to follow it. He dis
missed the application. This appeal is taken from
that decision.
In our opinion, the learned Trial Judge erred in
characterizing the decision as to the Deputy Min
ister's obligation as obiter. While the Court might
have taken a different approach to determine the
jurisdictional issue, it did not. In determining
whether or not the Deputy Minister's refusal was
subject to section 28 review, i.e., whether it was a
decision "other than a decision ... of an adminis
trative nature not required by law to be made on a
judicial or quasi-judicial basis", it chose to decide
whether or not he was obliged in law to give effect
to the Committee's recommendation. If he was
not, his decision would have had to have been
made on a judicial or quasi-judicial basis and,
thus, subject to section 28 review; if he had no
discretion but to give effect to it, his decision was
purely administrative and not subject to section 28
review.
The learned Trial Judge was bound by this
Court's decision and he erred in not following it. It
is apparent that different arguments have been
made to us, and to the learned Trial Judge, on the
respondents' behalf than were made to this Court
at the earlier hearing. We note that, in its reasons,
the Court did not refer to either subsection 113 (1)
of the Public Service Staff Relations Act, R.S.C.,
1985, c. P-35, nor section 13 of the Financial
Administration Act, R.S.C., 1985, c. F-11.' We
are, nevertheless, not persuaded that this Court's
earlier decision can be said to have been reached
per incuriam nor that we would be justified in the
present circumstances, on that or any other basis,
in not following the earlier decision.
1 113. (I) Nothing in this Act or any other Act shall be
construed to require the employer to do or refrain from doing
anything contrary to any instruction, direction or regulation
given or made by or on behalf of the Government of Canada in
the interest of the safety or security of Canada or any state
allied or associated with Canada.
(Continued on next page)
The appeal will be allowed with costs here and
below. Pursuant to subparagraph 52(b)(î) of the
Federal Court Act, making the order the Trial
Division should have made, we will set aside the
refusal of the Deputy Minister to grant the secu
rity clearance and order that he do so.
(Continued from previous page)
13. (1) Subject to subsection (2), nothing in the Act or any
other Act of Parliament shall be construed so as to limit or
affect the right or power of the Governor in Council to suspend
or dismiss any person employed in the public service on the
basis of a security assessment.
(2) Where a person has made a complaint with respect to a
security assessment to the Security Intelligence Review Com
mittee established by subsection 34(1) of the Canadian Secu
rity Intelligence Service Act, that person shall not be dismissed
pursuant to subsection (1) until after the completion of the
investigation in relation to that complaint.
(3) For the purpose of subsection (1), any order made by the
Governor in Council is conclusive proof of the matters stated
therein in relation to the suspension or dismissal of any person
in the interest of the safety or security of Canada or any state
allied or associated with Canada.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.