Meyler v. Canada (Attorney General), (2015) 477 F.T.R. 85 (FC)

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: February 04, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 477 F.T.R. 85 (FC);2015 FC 357

Meyler v. Can. (A.G.) (2015), 477 F.T.R. 85 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.060

Juliet Angella Meyler (applicant) v. Attorney General of Canada (respondent)

(T-1197-14; 2015 FC 357)

Indexed As: Meyler v. Canada (Attorney General)

Federal Court

Rennie, J.

March 20, 2015.

Summary:

The Minister of Transport revoked Meyler's airport security clearance on the basis of informant-based allegations that she associated with a certain unspecified individual in a major drug importation scheme at the airport. Her submission, both to the Advisory Body and on judicial review, was that she did not know who it was she was said to be associated with or the drug smuggling scheme with which she was implicated. The central question was the nature and extent of the duty of fairness owed and whether it was breached.

The Federal Court granted the judicial review application. The requirement of procedural fairness was not discharged. Nor was the Minister's decision reasonable. The matter was remitted to the Minister for redetermination in accordance with the Court's reasons.

Administrative Law - Topic 2142

Natural justice - Administrative decisions or findings - Findings not sustainable by evidence - [See fourth Aeronautics - Topic 1844 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See third Aeronautics - Topic 1844 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See first Aeronautics - Topic 1844 ].

Administrative Law - Topic 2605

Natural justice - Evidence and proof - Drawing of inferences - [See fourth Aeronautics - Topic 1844 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure (incl. reliance on evidence not disclosed to party) - [See second Aeronautics - Topic 1844 ].

Administrative Law - Topic 3205.2

Judicial review - General - Governmental action - [See first Aeronautics - Topic 1844 ].

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - [See fourth Aeronautics - Topic 1844 ].

Administrative Law - Topic 8268

Administrative powers - Discretionary powers - Judicial review - [See first Aeronautics - Topic 1844 ].

Aeronautics - Topic 1844

Airports - Operation of - Security - Security programs - The Minister of Transport revoked the applicant's transportation security clearance on the basis of informant-based information which it refused to disclose - The Federal Court, in granting the judicial review application, stated that "[t]he case law establishes that where the decision involves the revocation of an existing security clearance, as here, a higher level of procedural fairness becomes engaged because an existing status or privilege is being taken away" - Given the elevated degree of procedural fairness owed to the applicant in this case, the respondent breached the duty by failing to make adequate disclosure of information which was put before the Advisory Body - See paragraphs 26 to 29.

Aeronautics - Topic 1844

Airports - Operation of - Security - Security programs - The Minister of Transport revoked the applicant's airport security clearance on the basis of informant-based allegations that she associated with a certain unspecified individual in a major drug importation scheme at the airport - Her submission, both to the Advisory Body and on judicial review, was that she did not know who it was she was said to be associated with or the drug smuggling scheme with which she was implicated - The Minister pointed to case law recognizing informer privilege and contended that the high public interest rendered the privilege absolute - The Federal Court, while agreeing that procedural fairness did not require identification of informants, stated that "[i]n cases involving a revocation of a security clearance on the basis of police reports of criminal activity, and involving allegations from third-party information relied upon by the decision maker and which the applicant was not provided an opportunity to challenge, the applicant should be afforded an opportunity to understand the case against her and make informed submissions ... . In the present case, no consideration was given to what elements of the source based information could be disclosed to the applicant without compromising the source ... . The applicant in the present case was unable to respond to the case against her, as she knew neither the time, date, nor the precise activity which gave rise to revocation." - See paragraphs 37 to 40.

Aeronautics - Topic 1844

Airports - Operation of - Security - Security programs - The Minister of Transport revoked the applicant's airport security clearance on the basis of informant-based allegations which it refused to disclose - The Federal Court, in granting the judicial review application, stated that "[t]here are cases, rare as they are, where no information can be disclosed without compromising a source. If this is in fact one of those cases, the decision letter must include, in the interests of procedural fairness, evidence that the decision maker addressed his or her mind to the extent to which information could be disclosed without compromising the source. Therefore, to the extent that disclosure can be made without identifying an informer or source, information should be disclosed if necessary to satisfy the requirements of natural justice." - See paragraph 42.

Aeronautics - Topic 1844

Airports - Operation of - Security - Security programs - The Minister of Transport revoked the applicant's airport security clearance on the basis of informant-based allegations that she associated with a certain unspecified individual in a major drug importation scheme at the airport - No further information was disclosed - The Federal Court, reviewing the reasonableness of the decision, stated that "the applicant submitted her financial statements on her own volition. ... The statements revealed no large sums of money transiting through her account. Nonetheless, the Advisory Body concluded that 'it is not uncommon for individuals who are involved in the importation of drugs to be paid for their services by taking a cut in a percentage of the drugs, and not in cash or in a monetary fashion'. In the context of information known only to the panel, this may be a reasonable inference to draw from the financial records. However, this inference, standing as it does in a factual vacuum, with no indicia or evidence to support the inference, falls short of the ... criteria of transparency and intelligibility. ... That conclusion may be open to the Panel, but only if they disclosed to the extent possible, the basis upon which the inference was drawn." - See paragraphs 43 and 44.

Crown - Topic 685

Authority of ministers - Exercise of - Administrative or policy decisions - Judicial review - [See first Aeronautics - Topic 1844 ].

Crown - Topic 2246

Crown privilege or prerogative - Production of documents - Absolute privilege - Judicial review - [See second Aeronautics - Topic 1844 ].

Evidence - Topic 4151

Witnesses - Privilege - Privileged topics - Crown objection to disclosure of information - [See second Aeronautics - Topic 1844 ].

Evidence - Topic 4203

Witnesses - Privilege - Communications to public officials or boards - Absolute privilege or immunity - [See second Aeronautics - Topic 1844 ].

Cases Noticed:

Lorenzen v. Transport Canada Safety & Security, [2014] F.T.R. Uned. 102; 2014 FC 273, refd to. [para. 25].

Khela v. Mission Institution (Warden) et al. (2014), 351 B.C.A.C. 91; 599 W.A.C. 91; 455 N.R. 279; 2014 SCC 24, refd to. [para. 25].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 3; 385 N.R. 206; 2009 SCC 12, refd to. [para. 25].

Koulatchenko v. Financial Transactions and Reports Analysis Centre of Canada (2014), 449 F.T.R. 66; 2014 FC 206, refd to. [para. 26].

Xavier v. Canada (Attorney General) et al., [2010] F.T.R. Uned. 92; 2010 FC 147, refd to. [para. 27].

Russo v. Canada (Minister of Transport, Infrastructure and Communities) (2011), 406 F.T.R. 49; 2011 FC 764, refd to. [para. 28].

Clue v. Canada (Attorney General), [2011] F.T.R. Uned. 175; 2011 FC 323, dist. [para. 32].

Rivet v. Canada (Attorney General) et al. (2007), 325 F.T.R. 178; 2007 FC 1175, dist. [para. 33].

Peles v. Canada (Attorney General), [2013] F.T.R. Uned. 143; 2013 FC 294, dist. [para. 33].

Pouliot v. Canada (Minister of Transport, Infrastructure and Communities), [2012] F.T.R. Uned. 195; 2012 FC 347, dist. [para. 33].

DiMartino et al. v. Canada (Minister of Transport) (2005), 272 F.T.R. 250; 2005 FC 635, refd to. [para. 37].

Vancouver Sun et al. v. Canada (Attorney General) et al. (2007), 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 38].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 39].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 43].

Statutes Noticed:

Aeronautics Act, R.S.C. 1985, c. A-2, sect. 4.8 [para. 24].

Counsel:

Carlin McGoogan, for the applicant;

Stewart Phillips, for the respondent.

Solicitors of Record:

Du Vernet, Stewart, Mississauga, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard in Toronto, Ontario, on February 4, 2015, before Rennie, J., of the Federal Court, who delivered the following judgment and reasons, dated March 20, 2015, at Ottawa, Ontario.