The Canadian Federal Court has denied a request by the country’s transport ministry for judicial review of a decision by the Canadian Human Rights Tribunal (CHRT), which said that it was required to review and take submissions on CCTV footage relevant to a discrimination lawsuit.

The decision, issued by Judge Paul Favel on 5 April, arose out of a complaint by air passenger Kathleen Mahood against the Canadian Air Transport Security Authority (CATSA), alleging that its screening agents at Calgary Airport had discriminated against her because she uses medical marijuana to treat her disabilities.

Footage of the alleged discrimination was captured on the airport’s CCTV system, which is controlled by CATSA. While the authority and Mahood agreed that the footage is relevant to the case, CATSA argued that it contained “substances of security measures”, disclosure of which was prohibited under the Canadian Air Transport Security Authority Act and the Aeronautics Act.

Under the cited regulations, airport operators are required to keep confidential “any information the publication of which, in the opinion of the Minister, would be detrimental to air transport security or public security”. Courts and tribunals reviewing security measures are required to do so in private and to notify the transport ministry and allow it to make representations.

The CHRT said that there was “very little case law” available outlining the procedure for the disclosure of security measures under the Aeronautics Act, but noted that the regulation prohibited disclosure of such material unless it was required by law. The CHRT found that because both parties agreed that the footage was relevant to the case, production was required by the Canadian Human Rights Act and the tribunal’s rules of procedure, , thus triggering the requirement under the Act that the tribunal examine the security measures and hear the ministry’s representations during in camera proceedings.   

Upon receipt of CATSA’s affidavit summarising the security measures, however, the ministry objected to the other parties being able to review its submissions, arguing that the Aviation Act in fact provided for ex parte proceedings.

The CHRT responded that ex parte proceedings were “an extraordinary derogation from the requirement of natural justice” and that, while the Aeronautics Acts explicitly required them under certain circumstances, the passages of the regulation that were relevant to the current proceeding made no mention of such proceedings, which suggested that they were not intended to be used.

The attorney general, on behalf of the ministry, requested a judicial review of that decision on the basis that the tribunal’s interpretation of the Aeronautics Act was flawed.

The Federal Court noted that there were two applicable standards of review for decisions under Canadian law: correctness and reasonableness.

While the court acknowledged that the CHRT, in interpreting the Aeronautics Act, was ruling on subject matter that was outside of its area of expertise, the “dearth of case law” on the issue obliged the tribunal “to embark on interpreting the statute”. Under the circumstances, the court concluded that the tribunal’s interpretation was correct.

The ministry argued that the purpose of a hearing under the relevant sections of the Act was to determine whether the security measure in question should be shown to the parties, and said the regulation’s objective of ensuring safety at airports would be frustrated if all parties were allowed to view the footage.

The court said this was a misreading of the facts, noting that the tribunal had “clearly indicated” that it would review the security measures before the hearing took place and that the hearing itself would take place to allow submissions from the parties as to why they should be allowed to view it.

The court went on to say that it disagreed with the ministry’s submission that such a hearing could compromise aviation safety and that the tribunal’s interpretation of the Act was reasonable. Moreover, the court said the ministry’s submission was premature as the tribunal had not yet set out the procedure for the hearing. “The Applicant should wait for the Tribunal to make its decision regarding the CCTV footage disclosure before bringing this application,” the court said.

In the Federal Court of Canada

Canada (Attorney General) v Mahood

  • Judge Paul Favel

Counsel to Canada

Wendy Wright, counsel at the Canadian Department of Justice

Counsel to the Canadian Human Rights Commission

Government lawyers Daniel Poulin and Ikram Warsame

Counsel to CATSA

  • Fasken Martineau DuMoulin

Stefan Kimpton in Ottawa