|
JR - Prerogative Writs - Certiorari (2). Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority
In Pacific Coast Terminals Co. Ltd. v. Vancouver Fraser Port Authority (Fed CA, 2026) the Federal Court of Appeal considered "issues pertaining to the content of the record in judicial review", particularly "the demarcation between the obligation of a tribunal to transmit a certified tribunal record (certified record) under rule 317 of the Federal Courts Rules, SOR/98-106 [Rules], and the evidence that the applicant and respondent put before a court under rules 306 and 307".
The court considers R317 ['Material in the Possession of a Tribunal'] of the FCR (here in a JR record context) and explains it's historical origins in the prerogative writ of certiorari:Rule 317 - General Principles
[29] The requirement that a tribunal produce, without hesitation, the entire record before it is central to judicial review. Rule 317 is the codification of the common law writ of certiorari that requires that the lower tribunal send the record to the supervisory court without delay. The Rules do not require that the transmittal be accompanied by an affidavit; rather the tribunal must "“certify”" that the documents constitute "“the record”" before the tribunal. This language is consistent with the historical origins of certiorari itself. The original writ of certiorari read in part:We do command that you do send forthwith before us all and singular the said orders with all things touching the same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our Writ, that we may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done.”
(R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw (1951), [1951] EWCA Civ. 1 (BAILII), [1952] 1 K.B. 338; see also Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268 at paras. 11–12) [30] As the writ itself makes clear, the requirement is unequivocal and immediate. Today, it is broader in scope and is tempered only by recognized privileges and the pragmatic consideration that frequently portions of the tribunal record, particularly in the case of highly specialized agencies with lengthy proceedings canvassing many issues, may not be "“relevant”" to the issues on the application.
[31] In China Mobile, this Court previously distinguished civil discovery from record transmittal in judicial review:Arguments that seek to infuse Rule 317 with discovery-like attributes are inconsistent with the historical underpinning of judicial review. The writ of certiorari was addressed to inferior courts and tribunals, requiring them to return the record that was before them to the supervising court. Rule 317 reflects, precisely, its jurisprudential provenance. Requests for all documents that could potentially bear on a matter in the hopes of establishing relevance have no place under Rule 317. Consequently, parties applying for judicial review cannot rely on Rule 317 to obtain every document they may wish to examine while preparing their application.
(China Mobile at para. 39, citing Maax Bath Inc. v. Almag Aluminum Inc., 2009 FCA 204, 178 A.C.W.S. (3d) 696 at para. 15; Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224, 162 A.C.W.S. (3d) 570 at para. 17) [32] Certiorari and transmittal of the record is not the same as documentary discovery in an action. While rule 317 speaks of documents "“relevant to the application”", the obligation to transmit the decision record under rule 317 is not a proxy or synonym for the obligation to produce documents in civil discovery. Words such as "“disclosure”" and "“production”" are an ill fit and can lead to a blurring of the conceptual distinction between the determination of "“relevancy”" in an action, and the transmittal of documents by a decision-maker in judicial review. The drafters of the Rules used the word "“transmit”" advisedly, cognizant of the historical provenance of applications in the writ of certiorari. Transmittal is a better descriptor, as it conveys the core elements of certiorari—the immediate, non-discretionary conveyance of the tribunal record to the supervisory court.
[33] Nor is the issue of what must be "“transmitted”" under rule 317 to be confused with the filing of affidavits by the applicant, under rule 306, and the respondent, under rule 307. These steps, which are downstream of the transmittal of the record, are governed by their own rules and jurisprudence. I will discuss these later.
[34] Under rule 317, a party may request a decision-maker to transmit material that is "“relevant to an application”". Relevancy, in this context, is defined with reference to the wording of the application. It is limited to the actual material that was before the decision-maker when it made the decision under review. It only requires disclosure of material that is "“in the possession”" of the administrative decision-maker, not others. There are certain exceptions to this, including where a party claims a denial of procedural fairness or bias, which may require greater disclosure to enable a court to assess the merits of the claim (Humane Society of Canada Foundation v. Canada (National Revenue), 2018 FCA 66 at paras. 4–6; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at para. 117 [Tsleil-Waututh]).
[35] In most cases, the application of these principles is straight-forward; that is, of course, unless there is a dispute as to the identity of the decision-maker. .... The court then continues to consider this issue on the facts of the case.
It later continues:[86] Judges are not naïve. A party can try to insulate a decision from judicial scrutiny, but they do so at their peril. The parties have several tools at their disposal, and the Court has robust responses to ensure that the decision of the true or actual decision-maker is reviewed, and that that review takes place on a comprehensive record. As noted by de Montigny C.J., "“[i]n short, and keeping in mind that as a general rule, only the evidentiary record that was before the administrative decision-maker is admissible on judicial review, there is no dearth of tools at the disposal of the parties and of the Court to ensure that the party challenging the decision is able to mount an effective case, and that the Court, in exercising its reviewing role, is equipped with a full record to assess the defensibility and legality of an administrative decision”" (Southern Railway of British Columbia Limited v. Vancouver Fraser Port Authority, 2024 FCA 175 at para. 34 [Southern Railway]).
[87] I will discuss three of these guarantors of the integrity of judicial review. However, as will become apparent, it is premature to consider any of these remedies; the parties have yet to exchange affidavits under rules 306 and 307, and cross-examinations may follow. Any deficiency in the record that impedes the Federal Court from doing what it is required to do can be addressed if and when the matter arises.
[88] The first protection against the risk posited by the Terminals lies in rule 318 [SS: 'Material in the Possession of a Tribunal - Material to be transmitted'] itself. As the case law noted above indicates, the courts do not take a narrow-legalistic view to who is the decision-maker. Where, as in GCT, there was evidence that the decision-maker in fact consulted a more senior authority with respect to the decision, the record will be expanded accordingly.
[89] Second, under rule 313 [SS: 'Requirement to file additional material'], a court can, of its own initiative or at the request of a party, order further material be filed if it considers that the application records of the parties are incomplete. Discretion exercised under this rule must, however, reflect the distinction between the role of the court sitting in a supervisory context, as opposed to the role of the tribunal or decision-maker authorized to make the substantive decision. A court must be mindful of not tripping over the line (see Rémillard v. Canada (National Revenue), 2022 FCA 63). Additionally, a court can make use of its general supervisory power in administrative matters (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385) and its plenary jurisdiction to make orders necessary for the conduct of proceedings (Southern Railway; Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 19–25; GCT at para. 26.)
[90] An important note of caution; this is an exceptional power and is used sparingly. It is not licence for judges sitting in judicial review to order discovery-like production simply because it might be "“helpful”" or shed light on the matter.
[91] Third, following the exchange of affidavits, a party can also invite the Court to draw an adverse inference from missing evidence.
[92] Beyond the tools the courts might employ, the nature of reasonableness review itself incentivizes respondents to provide a comprehensive record on judicial review.
[93] If the record, even when bolstered by permissible inferences and evidentiary presumptions, is so scant that the reviewing court cannot conduct reasonableness review, the decision must be quashed.
[94] Reasonableness review searches for justification in the reasoning in light of the legal and evidentiary constraints, and a decision founded on a weak record will generally have a harder time meeting the burden of justification. Here, where the decision to fix fees is based on the Summary Report, the role of the Court on judicial review will be to determine whether the decision, when viewed in light of the record, conforms with the applicable legal and evidentiary constraints (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 94–98 [Vavilov]).
[95] In exceptional cases, the nature of a decision-maker may give rise to a narrower record. Some bodies, usually those at the apex of machinery of government, such as the GIC, do not give reasons for their decisions nor produce the record before them; in contrast, the record before an adjudicative or quasi-judicial body may be expansive. The reasonableness methodology is tailored accordingly (Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17 at para. 7).
[96] Insofar as the nature of a decision-maker and decision suggests a more fulsome record, a scant record of the decision has a direct bearing on the likelihood that the decision will survive reasonableness review. The answer, however, is not to expand what must be transmitted under rule 317 to the point where the decision passes the threshold criteria of transparency, justification and intelligibility. To proceed on this basis is to blur the line between transmittal of the record before the decision-maker and discovery of documents in an action (Tsleil-Waututh at para. 79).
|
