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AIR TRANSPORTATION - Regulation - Federal - Aviation security

Wednesday, May 10, 2017 @ 9:14 AM  


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Appeal by Hoang from a decision dismissing his application for judicial review of a decision of the Canada Human Rights Commission not to refer his complaint against the Minister of Transport to the Canadian Human Rights Tribunal. The appellant worked at an airport as a station attendant and was responsible for loading and unloading luggage to and from commercial aircrafts. The appellant alleged that he was subjected to discrimination on the ground of family status, namely his relationship with his father and his brother, when the Minister denied his application for security clearance, which was a prerequisite for his continued employment at the airport. The Minister refused to issue a clearance certificate because the appellant’s father had been convicted of trafficking in drugs and his brother had been found in possession of heroin and crack cocaine. The Commission was satisfied that, 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. Following a review of the complaint, an 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 clearance certificate should be issued was justified as reasonably necessary. The Commission further found that the Transportation Security Clearance Program did not provide for a blanket disqualification for all applicants whose family members had criminal antecedents, but was to be applied on a case-by-case basis.

HELD: Appeal dismissed. It was clear from the investigator’s report that she found the Minister’s exercise of discretion to be justified. The investigator properly applied the Meiorin/Grismer test by holding that the issuance of the security clearance was rationally connected to the purpose of promoting a safe and secure transportation system. The investigator also found that there was no evidence to suggest that the Minister was not acting in good faith and that the Minister could not accommodate persons with the characteristics of the appellant without incurring undue hardship. It was 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. The Minister reasonably concluded that the risk was sufficient enough that it could not justify the issuance of a security clearance to the appellant.

Hoang v. Canada (Attorney General), [2017] F.C.J. No. 321, Federal Court of Appeal, M. Noël C.J., W.W. Webb and J.M. Woods JJ.A., March 30, 2017. TLD-May82017008