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Federal Court - Appeal - Tribunal Record

. Ron W Cameron Charitable Foundation v. Canada (National Revenue)

In Ron W Cameron Charitable Foundation v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considered an appeal (from a tribinal) motion requesting additional record materials, here where the appeal was against the confirmation of a Minister's decision to "confirm its notice of intention to revoke the appellant’s charitable status":

[2] The appellant, in their Notice of Appeal, requests that the Minister provide it and the Registry with certain materials, following the procedure contemplated by Rules 317 and 318 of the Federal Courts Rules, S.O.R./98-106.

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[5] In response, the Minister provided a Certified Tribunal Record (“CTR”) to the Registry and the appellant. The Minister objected, with reasons, to providing any other documents.

[6] Following directions made by Locke J.A. on May 24, 2023, the appellant now asks this Court to order the Minister to forward additional material requested in its Notice of Appeal to them and the Registry.

II. The Applicable Rules

[7] Rule 317 provides that “[a] party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application”. Pursuant to Rule 2, as well as subsection 2(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, a tribunal includes the Minister of National Revenue. Rule 318(2) sets out the process for the tribunal to object. Rule 318(4) authorizes the Court to order that further material be produced.

[8] The general principles governing the extent of the tribunal’s obligation to produce material under Rule 317 are well established. They are summarized by this Court in Tsleil‑Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 86-115 [Tsleil‑Waututh], Lukács v. Swoop Inc., 2019 FCA 145, and Canadian National Railway Company v. Canada (Transportation Agency), 2019 FCA 257 [Canadian National].

[9] The purpose of Rule 317, as stated in Canadian National at para. 12, is:

Rule 317 embodies the principle that judicial review is premised on review of the record before the tribunal; certiorari means to bring forth the record. It entitles a party to receive everything that the decision maker had before it when it made its decision […]. The requirement that a tribunal produce, without hesitation, the entire record has long been central to judicial review. This is tempered by the pragmatic consideration that frequently large portions of the tribunal record, particularly in the case of standing, highly specialized agencies, may not be pertinent to the disposition of the issues on appeal.

[10] Only material “relevant to an application” must be produced. Relevance is determined by reference to the notice of application or, in this case, the Notice of Appeal (Tsleil-Waututh at paras. 106-110; Canadian National at para. 14; Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 at p. 460, 1995 CanLII 3591 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 306, 198 N.R. 237 [Pathak]).

[11] In reviewing an objection to disclosure under Rule 318, a court must seek to provide a remedy that reconciles, as much as possible, three objectives: (i) providing meaningful review of administrative decisions, which the reviewing court will be unable to engage in without being satisfied that the record before it is sufficient; (ii) procedural fairness; and (iii) the protection of any legitimate confidentiality interests while ensuring that court proceedings are as open as possible (Girouard v. Canadian Judicial Council, 2019 FCA 252 at para. 18, citing Lukács v. Canada (Transportation Agency), 2016 FCA 106 at para. 15; see also GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2021 FC 624 at para. 27).

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[20] The Minister objects to producing documents that were not in front of the Minister at the time the decision was made. The affidavit confirms that all relevant material that was before the decision-maker at the time the decision was made has been produced. The Minister clarifies in its submissions (at paragraph 30) that “there were no other documents before the decision-maker because nothing more exists”. I have no reason to reject this clarification.

[21] Only the actual material that was before the decision-maker when making the decision must be produced, nothing more (Tseil-Waututh at para. 112, citing Pathak, 1185740 Ontario Ltd. v. Canada (Minister of National Revenue), [1998] 3 C.T.C. 215, 1998 CanLII 7910 (F.C.)).

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[26] An allegation of disability discrimination or breach of procedural fairness may warrant broader disclosure under Rule 317. Where these arguments are raised, documents that are relevant to the allegations—even if not before the decision-maker—are subject to disclosure (Air Passenger Rights v. Canada (Attorney General), 2021 FCA 201 at para. 21).

[27] There must however be some evidence to support the claim (Tseil-Waututh at para. 99; Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224 [Access] at paras. 18-19). The party alleging the breach must also establish the relevance of documents sought to the purported discrimination or breach (Château d’Ivoire Stores Inc. v. Canada (Attorney General), 2022 FC 405 at para. 27).

[28] The appellant has not provided any evidence that discrimination or breach of procedural fairness occurred. Material that “could be relevant in the hopes of later establishing relevance” does not fall within Rule 317; the Rule does not sanction fishing expeditions (Tseil-Waututh at para. 108, also citing Access at para. 21).

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[41] This Court will not order production of documents where there is no evidence of their existence (Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia – Létourneau Commission), 1997 CanLII 5116 (FC), [1997] 130 F.T.R. 183, [1997] F.C.J. No. 535 at para. 16).

[42] If the request is for the Minister to create a list, when one does not exist, Rule 317 does not provide for this (Quebec Port Terminals Inc. v. Canada (Labour Relations Board), FCA [1993] F.C.J. No. 421 (F.C.A.) at para. 10) (Rules 1612 and 1613 are predecessors to Rules 317 and 318). Rule 317 presumes that the material requested already exists, on the basis that it was used by the decision-maker in its deliberation or decision-making.