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Federal Court - Appeal - Tribunal Record. Hudson v. Canada
In Hudson v. Canada (Fed CA, 2024) the Federal Court of Appeal considers an appeal motion for fresh evidence, and in so doing draws a distinction between fresh evidence and the inclusion of documents in the appeal book:[1] In the present appeal from a judgment of the Tax Court of Canada, the appellant moves for an Order that:1. The Court grant the appellant leave to adduce fresh evidence pursuant to Rule 351 of the Federal Courts Rules, S.O.R./98-106, as follows: ... ....
II. Fresh Evidence
[6] The parties agree that a party seeking to adduce fresh evidence must establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below; and that, if the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal, though such discretion should be exercised sparingly and only in the clearest of cases, where the interests of justice so require (see Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).
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[10] I agree with the respondent that fresh evidence pursuant to Rule 351 should not be allowed. The appellant was aware of the importance of the tax returns and Dr. Raynor’s letters and has not convinced me that she exercised due diligence in introducing them into evidence. She points to a trial exhibit as evidence of Dr. Raynor’s vacation, but she does not point to any exchange with the Tax Court in which she asserted the necessity of relying on Dr. Raynor’s letters as hearsay evidence because of her unavailability. The appellant also does not adequately document her allegation that the Tax Court initially indicated that she could introduce Dr. Raynor’s letters through her testimony. Finally, I am also not convinced by the appellant’s bald allegation that she could not have introduced the B.C. Minister of Finance document as evidence at trial with the exercise of due diligence.
[11] Nevertheless, the appellant alleges in her notice of appeal that the Tax Court erred in refusing to accept at least the tax documents and Dr. Raynor’s letters as evidence. In order for this Court to be in a position to determine whether the Tax Court erred in this respect, it will be necessary to have reference to these documents. Therefore, though they will not be accepted as fresh evidence, they should be included in the appeal book. . Chad v. Canada (National Revenue)
In Chad v. Canada (National Revenue) (Fed CA, 2024) the Federal Court of Appeal considered a motion regarding the contents of an appeal book, here in an appeal of a decision that "struck, without leave to amend, an amended notice of application" as it was "so clearly improper as to be bereft of any possibility of success":[4] The parties appear to agree that the content of the appeal book is to be determined in accordance with Rules 343(2) and 344(1), and jurisprudence related thereto. Rule 343(2) provides that the appeal book should include "“only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.”" Rule 344(1) provides as follows:344 (1) An appeal book shall contain, on consecutively numbered pages and in the following order,
344 (1) Le dossier d’appel contient, sur des pages numérotées consécutivement, les documents ci-après dans l’ordre suivant:
(a) a table of contents describing each document;
(a) une table des matières désignant chaque document;
(b) the notice of appeal and any notice of cross-appeal;
(b) l’avis d’appel et, le cas échéant, l’avis d’appel incident;
(c) the order appealed from, as signed and entered, and any reasons, including dissenting reasons, given in respect of that order;
(c) l’ordonnance portée en appel, telle qu’elle a été signée et inscrite ainsi que les motifs, le cas échéant, y compris toute dissidence;
(d) the originating document, any other pleadings and any other document in the first instance that defines the issues in the appeal;
d) l’acte introductif d’instance, les autres actes de procédure et tout autre document déposé dans la première instance qui définit les questions en litige dans l’appel;
(e) subject to subsection (2), all documents, exhibits and transcripts agreed on under subsection 343(1) or ordered to be included on a motion under subsection 343(3);
(e) sous réserve du paragraphe (2), les documents, pièces et transcriptions énumérés dans l’entente visée au paragraphe 343(1) ou dans l’ordonnance qui en tient lieu;
(f) any order made in respect of the conduct of the appeal;
(f) toute ordonnance relative au déroulement de l’appel;
(g) any other document relevant to the appeal;
(g) tout autre document pertinent;
(h) an agreement reached under subsection 343(1) as to the contents of the appeal book or an order made under subsection 343(3); and
(h) l’entente visée au paragraphe 343(1) ou l’ordonnance qui en tient lieu;
(i) a certificate in Form 344, signed by the appellant’s solicitor, stating that the contents of the appeal book are complete and legible.
(i) le certificat établi selon la formule 344, signé par l’avocat de l’appelant et attestant que le contenu du dossier d’appel est complet et lisible. II. The Transcript
[5] The Minister objects to the inclusion of the Transcript in the appeal book because it contains only legal argument, and is not required to dispose of the issues on appeal: Collins v. Canada, 2010 FCA 128 at para. 2. Mr. Chad argues that the Minister tendered evidence at the hearing during her submissions, to which Mr. Chad objected, and that the Transcript is therefore not limited to legal argument. The Minister counters that the alleged evidence was simply submissions in reply to Mr. Chad’s argument that a request for information under the Access to Information Act, R.S.C. 1985, c. A-1, would not be an adequate alternative remedy.
[6] Mr. Chad argues that the limitation on the content of the appeal book contemplated in Rule 343(2) is a flexible one, and a document should be included if a party "“has a reasonable basis for believing that it may wish to rely on that document to support one of its argument on appeal.”" Mr. Chad cites Bojangles' International, LLC v. Bojangles Café Ltd., 2006 FCA 291 at para. 6, in support of this argument, but he takes the quoted passage further than was intended. It was not intended to override the principle that the document in question must be required to dispose of the issues on appeal. The mere fact that a party may wish to rely on a document cannot be sufficient.
[7] I agree with the Minister that the Minister’s submissions in question at the hearing were not evidence. Moreover, there is no indication that they were treated as such by the Federal Court. The issue of whether a request for information under the Access to Information Act would be an adequate alternative remedy is a question of law. The Transcript is not required to decide that issue; nor am I convinced that it is required to decide any other issue on appeal.
[8] I accept Mr. Chad’s argument that doubt as to whether a document should be included in the appeal book should be resolved in favour of inclusion (West Vancouver v. British Columbia, 2005 FCA 281 at para. 4), but I have no doubt that the Transcript should not be included.
III. The Chad Affidavit
[9] The Minister objects to the inclusion of the Chad Affidavit in the appeal book, with the exception of the Demand Letter, because it was not put before the Federal Court by either party in its motion record, and was not relied on as evidence. The Minister acknowledges that Mr. Chad referred to his affidavit in his written submissions before the Federal Court, but notes that he did not include it in his motion record. The Minister also notes that Mr. Chad’s counsel acknowledged explicitly at the hearing before the Federal Court that he was not relying on the Chad Affidavit as evidence.
[10] Moreover, the Minister notes that, in the context of a motion to strike a notice of application, the facts therein are taken to be true: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para. 52. Therefore, no evidence is required to support those facts, either before the Federal Court or before this Court.
[11] Mr. Chad argues that his affidavit is required to counter the Minister’s submission, which was accepted by the Federal Court, that the amended notice of application "“largely includes bald and speculative allegations and conclusory statements which cannot support the relief sought”". Mr. Chad argues that he relies on his affidavit not for the truth of its contents, but as proof that the allegations were not unsupported.
[12] In my view, Mr. Chad’s argument cannot overcome the following facts (i) evidence is not required on a motion to strike, (ii) the Chad Affidavit was not submitted as evidence in the parties’ motion records, and (iii) Mr. Chad explicitly acknowledged that he was not relying on the Chad Affidavit as evidence.
[13] The Minister acknowledges that the Demand Letter should be included in the appeal book because it is referred to in the amended notice of application in issue. In reply, Mr. Chad argues that the Minister’s acknowledgement of the relevance of the Demand Letter to the present appeal must operate as an acknowledgement of the relevance of the rest of the Chad Affidavit. As he puts it, "“[w]hat is sauce for the goose is sauce for the gander.”" I find that expression misplaced in this context. It might apply if somehow the Minister’s case would be favoured by the inclusion of the Demand Letter in the appeal book, but I see no indication of that. In my view, the inclusion of the Demand Letter in the appeal book is not in dispute, but the inclusion of the rest of the Chad Affidavit is.
[14] I agree with the Minister that the bulk of the Chad Affidavit should be excluded from the appeal book because it is not in evidence. The Demand Letter should be included because its inclusion is not in dispute and because it is referred to in the amended notice of application.
IV. Conclusion
[15] For the foregoing reasons, I will order that the appeal book include the documents proposed by the Minister as listed in Schedule A to her responding motion record. I will also order that Mr. Chad pay the Minister’s costs of this motion in any event of the cause. . Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] (though the case bears on JRs as well), here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court considers 'deliberative privilege' (aka adjudicative privilege), here where it is raised by a tribunal to resist appeal disclosure for the record:[29] The Agency raises the issue of deliberative privilege. However, it overstates its scope. Deliberative privilege covers internal documents, often prepared by the administrator’s staff, that individual decision-makers use to assist their deliberations in the case. For example, staff might prepare evaluations of the evidence, legal advice and recommendations for the individuals deciding the case, much like a law clerk does for a judge on a court. The individuals deciding the case might make personal notes setting out their tentative reflections. These sorts of things are covered by deliberative privilege.
[30] But deliberative privilege is not a device that can be used to withhold from the parties key evidence not otherwise available in the record or potentially decisive, new arguments unknown to the parties. Sometimes procedural fairness requires administrative decision-makers to disclose such matters, even though they are found in a document normally covered by deliberative privilege.
[31] In some cases, though, allegations about corruption or bad faith might be made. And some allegations of procedural unfairness can trigger concerns about the integrity of the decision-making. In cases like those, where there is an air of reality to the allegations, disclosure of material normally covered by deliberative privilege can be ordered: Tremblay, above.
[32] In this case, the Agency asserts deliberative privilege over a briefing note prepared by Agency staff. There is no indication it contains material of the sort that must be disclosed. As well, the notice of appeal does not allege grounds or relief that would require lifting the confidentiality associated with the briefing note.
[33] Disclosure of the briefing note also seems unnecessary in a situation like this: to the extent that the briefing note contained errors and the Agency’s decision relied on those errors, the errors will be apparent from the face of the reasons or will be apparent from a comparison of the reasons with the relevant evidence and law. . Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] - though the case bears on JRs as well, here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes Stratas JA expounds and widens the range of documents 'relevant to' such motions, including the tribunal expanding it's search to other related case files that it holds [paras 16-17]:B. General principles and methodology
(1) The Federal Courts Rules
[6] This is a statutory appeal from a decision of the Agency: Canada Transportation Act, S.C. 1996, c. 10, s. 41. In its motion for disclosure, CN invokes Rule 317. Although Rule 317 speaks of “applications” and appears in Part 5 of the Federal Courts Rules, S.O.R./98-106, which explicitly concerns “applications”, it can be invoked in appeals from administrative decision-makers: Rule 350.
(2) Disclosure from administrative decision-makers for the purposes of statutory appeals and judicial reviews: general principles
[7] In recent years, governments have been assigning more and more responsibility to administrative decision-makers to decide matters of great public importance, influence and impact. In a mature, healthy democracy, these sorts of decisions must be open to meaningful review and public scrutiny:. Meaningful review. In our democracy, immunization of administrative decision-making and total prohibitions on judicial review are not allowed: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-105 and the numerous cases cited therein; see also Payne v. Ontario Human Rights Commission, (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.) at para. 161.
. Public scrutiny. Barriers to public scrutiny should be exceptional, permitted only to the extent necessary, and supported by evidence establishing a recognized legal ground for secrecy. The availability of meaningful review and public scrutiny of administrative decision-making ensures accountability, promotes better decisions, and increases public confidence in governance: Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein. [8] As our democracy has matured and developed, these principles have found greater recognition, at least as far as judicial reviews and statutory appeals of administrators’ decisions are concerned.
[9] In recent years, courts have narrowed the legal grounds for secrecy in proceedings, have become more willing to test justifications offered for secrecy, and have been more vigilant to ensure that the disclosure of evidence in proceedings is adequate: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 and Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (limits on secrecy in court); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 (narrowing of public interest privilege); Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 (enhancement of review of privilege under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5); Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965-966 and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (deliberative secrecy must sometimes give way so that there can be meaningful review); Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 53-54, Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 and Canadian Council for Refugees at paras. 111-112 (in appropriate circumstances adverse inferences can be drawn from an assertion of secrecy or a failure to disclose).
[10] In reviews of administrative decision-making—whether by application for judicial review or a statutory appeal—public scrutiny and meaningful review are interrelated. If an administrative decision-maker improperly withholds the documents and information it relied upon for its decision, the spectre of immunization of decision-making arises. The party trying to have the decision reviewed and the reviewing court itself cannot test whether the decision had a legitimate, rational basis and was consistent with the laws passed by our elected representatives. As a result, the administrative decision-maker can become a law unto itself, accountable to no one except itself: Tsleil-Waututh Nation at paras. 67-85.
[11] In our democracy, we simply do not allow that:“L’etat, c’est moi” and “trust us, we got it right” have no place in our democracy. In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385; United States v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 5 U.S. 137 (1803); Magna Carta (1215), art. 39. From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed. See the discussion in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 77-79, Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein.
Tyranny, despotism and abuse can come in many forms, sizes, and motivations: major and minor, large and small, sometimes clothed in good intentions, sometimes not. Over centuries of experience, we have learned that all are nevertheless the same: all are pernicious. Thus, we insist that all who exercise public power—no matter how lofty, no matter how important—must be subject to meaningful and fully independent review and accountability. (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at paras. 23-24.)
[12] In judicial reviews and statutory appeals from administrative decision-makers in the Federal Courts system, much of the heavy lifting is done under Rules 317 and 318. Rule 317 allows those applying for judicial review to “request material relevant to an application [or appeal] that is in the possession of [an administrative decision-maker] whose order is the subject of the application [or appeal] and not in the possession of the party [who is making the request]”. Rule 318 allows the administrative decision-maker to object.
[13] What is “relevant to an application [or appeal]” under Rule 317? The answer is found in the pleading: in the case of judicial reviews, the notice of application or in the case of statutory appeals, the notice of appeal.
[14] The Court must read the pleading “with a view to understanding the real essence of the application [or appeal]” and gaining “‘a realistic appreciation’ of the [proceeding’s] ‘essential character’”. The Court must not fall for skilful pleaders who are “[a]rmed with sophisticated wordsmithing tools and cunning minds”. Instead, it must read the pleading “holistically and practically without fastening onto matters of form”. See JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[15] Disclosure motions, whether within a judicial review or a statutory appeal, must be governed and abide by the foregoing principles. Non-disclosure that threatens the meaningfulness of judicial review, causes the immunization of administrative decision-making, or hinders or frustrates the prosecution and adjudication of a legitimate ground of review cannot be permitted. But attempts to conduct discovery of material to see whether a ground of judicial review might exist—the proverbial fishing expedition—also cannot be permitted: Tsleil-Waututh Nation at para. 115; Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224, 66 Admin. L.R. (4th) 83 at para. 17; Atlantic Prudence Fund Corp. v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15917 (F.C.T.D.) at para. 11; Maax Bath Inc. v. Almag Aluminum Inc., 2009 FCA 204, 392 N.R. 219 at para. 15. Attempts to use Rule 317 for a fishing expedition are common and the Court must never permit it. In special circumstances, however, the Federal Court may convert an application to an action, which may include examinations for discovery: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.4(2); Brake v. Canada (Attorney General), 2019 FCA 274, [2020] 2 F.C.R. 63; Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228 at paras. 23-25.
[16] In assessing what material is responsive to a Rule 317 request, the Court must pay close attention to context. For example, take a decision concerning a one-off, isolated matter. All of the documents and information leading to the decision will be found in the one specific file for the case. But take a decision that is just the latest chapter in an ongoing regulatory project consisting of multiple decisions. The documents and information will rest in the specific file for the case but also in related files. See generally Bell Canada v. 7262591 Canada Ltd. (Gusto TV), 2016 FCA 123, 17 Admin L.R. (6th) 175 at paras. 14-15.
[17] In assessing relevance, the Court must also remember that Rule 317 is not a summary judgment provision. It is not meant to be a tactical opportunity for a respondent to nip in the bud a judicial review or statutory appeal before complete disclosure is made and analyzed. If there is an arguable case that the documents sought might well be relevant to the grounds or relief set out in the pleading, they should be disclosed. Fine, precise and final determinations of relevance are for the judge or panel hearing the merits of the application or appeal. By then, the judge or panel will have the benefit of the parties’ submissions on the complete evidentiary and legal picture and, thus, will be empowered to make the best possible decision on relevance.
[18] Also relevant to issues of disclosure are the principles of materiality and proportionality, the need for expedition and cost-effectiveness (Rule 3), and, in the case of applications for judicial review, the imperative that judicial review proceedings are to be heard and determined without delay and in a summary way (Federal Courts Act, s. 18.4): see generally Tsleil-Waututh Nation at paras. 82-84 and 158-159. But the spectre of partial or total immunization of administrative decision-making is the paramount concern: Tsleil-Waututh Nation at para. 166.
[19] Of course, legal privileges against disclosure and other confidentiality interests can be asserted in an objection under Rule 318. In appropriate circumstances, where a legal privilege against disclosure or an assertion of confidentiality is not absolute, the Court can devise creative orders that allow for necessary disclosure while protecting demonstrable, legitimate and significant interests in confidentiality: Canadian Council for Refugees at paras. 98-122 and Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 51. . Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] (though the case bears on JRs as well), here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court interestingly adds 'open court' doctrine as a factor into such a disclosure motion, insofar as a party seeks confidentiality or secrecy over such sought material:[9] In recent years, courts have narrowed the legal grounds for secrecy in proceedings, have become more willing to test justifications offered for secrecy, and have been more vigilant to ensure that the disclosure of evidence in proceedings is adequate: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 and Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (limits on secrecy in court); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 (narrowing of public interest privilege); Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 (enhancement of review of privilege under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5); Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965-966 and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (deliberative secrecy must sometimes give way so that there can be meaningful review); Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 53-54, Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 and Canadian Council for Refugees at paras. 111-112 (in appropriate circumstances adverse inferences can be drawn from an assertion of secrecy or a failure to disclose).
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E. Disposition
[34] An order will issue in accordance with these reasons. In particular, the appeal book shall contain, in addition to the material listed in Rule 344(1), the material described in paragraph 25, above, with the exception of the briefing note.
[35] It is likely that some of this material is confidential. Thus, CN has sought a confidentiality order. However, CN has not made any submissions on why a confidentiality order should be made or what documents should be covered by it.
[36] It is possible that disputes could arise about the precise material covered by CN’s request and what individual documents are confidential. Thus, in the interests of minimizing disputes and having this matter proceed “as quickly as is practicable” as required by subsection 41(3) of the Canada Transportation Act, this Court will order that the parties work together to prepare agreed-upon indices for a public appeal book and a confidential appeal book for the Court’s review. The parties will also have to persuade the Court that a confidentiality order is supported by the principles in Sherman Estate and Sierra Club. In case the parties cannot agree on the indices or the material that is to be confidential, this Court will also provide for the exchange of submissions. . 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.
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