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Federal Court - Appeal - Tribunal Record (2). Whitelaw v. Canada (Attorney General) [record required on appeal of JR]
In Whitelaw v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal considered the required contents of an Appeal Book under the Federal Rules [Rule 343], here where the moving party sought a transcript of the Federal Court which dismissed a JR application:[2] The present motion is being brought in a context where there is already an agreement on file between the parties on the contents of the Appeal Book (the Agreement). The Agreement, which was tendered for filing on December 19, 2024, was accepted for filing by Order of this Court dated January 16, 2025.
[3] However, the appellant claims that the transcript of the hearing before the Federal Court (the Transcript) should have been included in the materials listed in the Agreement. She says that the inclusion of that document was not in issue in her discussions with counsel for the respondents on the contents of the Appeal Book and that, therefore, she presumed it would be part of the listed materials in the Agreement. It was not. She blames the respondents for not having been straightforward in their communications with her and for being responsible, as a result, of this oversight of hers. I note that she also claims that this oversight occurred at a time she was facing some health issues related to the stress of having to meet the deadline for the filing of an agreement on the contents of the Appeal Book.
[4] In sum, the appellant is seeking to vary the content of the Agreement by adding a document – the Transcript – which she thought would be included in the Agreement’s listed materials.
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[7] Here, I agree with the respondents that granting the motion will not serve the interests of justice because the Transcript is unnecessary to dispose of the underlying appeal. Rule 343(2) is clear: it requires parties to an appeal before this Court to include in an Appeal Book "“only such documents, exhibits and transcripts as are required to dispose of the issues on appeal”". Although the Rule 343(2) test is a flexible one, a document should be included in the Appeal Book "“only if there is a reasonable basis for concluding that it is required to dispose of an issue on appeal”" (Bojangles’ International, LLC v. Bojangles Café Ltd., 2006 FCA 291, at para. 3).
[8] There is no such basis in the present case. As this Court stated in Collins v. Canada, 2010 FCA 128 (Collins), the transcript of the hearing before the Federal Court "“would disclose only the legal submissions made by the parties and any discussion that might have occurred in the course of the hearing”". It has therefore generally been considered irrelevant on appeal "“because it cannot assist this Court in determining whether the grounds of appeal are well founded”" (Collins at para. 3).
[9] The appellant contends that the Transcript is a "“foundational document”" to her appeal. This cannot be the case for two reasons. First and foremost, this is an appeal of a Federal Court’s decision dismissing a judicial review application. Our role on such appeals is to determine whether the Federal Court identified the appropriate standards of review to be applied to the Commission’s decision – correctness or reasonableness – and whether it properly applied those standards (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10‑12; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‑47 (Agraira)). This requires this Court to "“step into the shoes”" of the Federal Court judge and focus on the administrative decision under review, rather than on that of the Federal Court (Agraira at para. 46; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172, at paras. 24‑40 (Jagadeesh)).
[10] This means that the appellant in this case will get a fresh review of the Commission’s decision dismissing her complaint (Jagadeesh at para. 40, quoting Haynes v. Canada (Attorney General), 2023 FCA 158 at para. 16, leave to appeal to SCC refused, 41047 (6 June 2024); Sun v. Canada (Attorney General), 2024 FCA 152 at para. 4). More importantly, this means that any unfairness that might have occurred in the Federal Court would be cured by this Court’s review of the Commission’s decision (Jagadeesh at para. 41). In other words, assuming the hearing before the Federal Court was not as procedurally fair as it should have been, this would not assist the appellant in this judicial review appeal because the decision that matters in such context is the Commission’s decision, not the Federal Court’s.
[11] Second, in Collins, this Court identified an exception to the general rule that the transcript or recording of a hearing in the Federal Court is of no assistance to this Court in determining whether the grounds of appeal are well founded or not. That exception will apply when the transcript or recording provides evidence of a breach of procedural fairness committed by the Federal Court.
[12] However, it is important to underscore that Collins was not a judicial review matter; in that case, the appeal concerned an order of the Federal Court summarily dismissing an action in damages against the Federal Crown. Therefore, the Federal Court was not sitting in judicial review of an administrative decision-maker’s decision, as is the case here; it was the first instance decision maker so that this Court’s role in that case was different in the sense that the Court’s focus was – and could only be – on the Federal Court’s decision and the fairness of the process leading to it. . Lennert v. Canada (Attorney General) [appeal book]
In Lennert v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal considered the contents of an appeal record, here appealing a CRB JR:[5] Rule 344(1) of the Federal Courts Rules, S.O.R./98-106, specifies what an appeal book should include, identifying certain items with specificity and others in more general terms. Rule 344(1)(g) requires "“any other document ""relevant to the appeal”" be included; Rule 343(2) limits the documents in an appeal book to "“such documents, exhibits and transcripts ""as are required to dispose of the issues on appeal”" (emphasis added). The tension between these two rules lies at the heart of the dispute on this motion.
[6] The appellant asserts that the only documents that are relevant are those that relate to her PDF income and, relying on Rule 343(2), seeks to exclude exhibits from affidavits that she alleges are relevant only to her self-employment income. She also seeks to limit the appeal book to a single copy of any document that would otherwise appear in more than one place, for example in both the applicant’s and the respondent’s application records before the Federal Court.
[7] The respondent asserts that the appeal book should include all documents in dispute because they are relevant to disposition of the issues on the appeal and, with one exception, appears to disagree with the appellant concerning duplication of documents in the applicant’s and respondent’s application records.
[8] It is difficult for a motions judge to assess what might be relevant to the issues on appeal: West Vancouver v. British Columbia, 2005 FCA 281 at para. 4; Loba Limited v. Canada (National Revenue), 2007 FCA 317 at para. 5 [Loba]. However, the nature of the appeal may affect what is relevant.
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[10] Accordingly, the appeal book in an appeal of this nature typically contains both the applicant’s and respondent’s application records in their entirety. Particularly in the context of filing appeal books electronically, this is viewed as simple and practical approach.
[11] Moreover, on a motion to settle the contents of the appeal book, the threshold for relevance is generally low: Sourani v. Canada, 2002 FCA 334 at para. 24. When there is any doubt about a document’s relevance, the document should be included: Bojangles' International, LLC v. Bojangles Café Ltd., 2006 FCA 291 at para. 6 [Bojangles]; Canadian National Railway Company v. Canada (Transportation Agency), 2019 FCA 257 at para. 14; Chad v. Canada (National Revenue), 2024 FCA 56 at para. 8. Inclusion in the appeal book is not determinative of relevance and it is better that a document is included and never referred to, than is omitted only to later realize it is needed.
[12] That said, the parties must minimize the contents of the appeal book and exclude irrelevant documents: Office of the Superintendent of Bankruptcy v. MacLeod, 2010 FCA 97 at para. 5 [MacLeod]. See also Smith v. Canada (Attorney General), 2022 FCA 28 [Smith]. Rule 343(2) should not be interpreted to mean "“all documents that were before the Federal Court must be included in the appeal book”": Smith at para. 6. Rather, its purpose is to discourage parties from including in the appeal book material that is not useful: Shire Canada Inc. v. Apotex Inc., 2011 FCA 10 at para. 14.
[13] Therefore, parties should make a reasonable effort to determine whether the test in Rule 343(2) is satisfied: Bojangles at paras. 5-6. Consequences may follow from a failure to do so: Syncrude Canada Ltd. v. Canada (Attorney General), 2015 FCA 38 at para. 5, citing MacLeod at para. 8.
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[21] Moreover, the appeal book should include a document "“if it is reasonable to suppose the appellate court may require it to gain a full appreciation of the facts”": Bojangles at para. 6. Based on what is before me, I cannot conclude that the disputed affidavit exhibits will not be required so this Court can fully appreciate the facts.
[22] While I do not want to suggest that an affidavit exhibit can never be excluded, once the parties agree that an affidavit should be included, the exhibits that were admissible in the Federal Court will almost invariably be relevant. Thus, they should be included in the appeal book unless the parties agree they should be excluded. There is no such agreement here and, I reiterate, the disputed documents are not before me on this motion. Therefore, I must agree with the respondent that all affidavit exhibits should be included in the appeal book.
[23] That said, there may be ways to shorten the appeal book without excluding documents. As this Court has observed, "“[s]imply replicating every document that was before the Federal Court, which may result in multiple copies of the same document…does not lead to an efficient and effective appeal process”": Smith at para. 6.
[24] Therefore, to the extent that an exhibit to one affidavit replicates exactly an exhibit to another affidavit, the exhibit need not be reproduced multiple times in the appeal book. In the second, or third place, for example, the exhibit may be replaced with a page stating the exhibit has not been reproduced because it is an exact replica of another specified exhibit (e.g., Exhibit D) to another specified affidavit (identified by date and the name of affiant) found in the applicant’s or respondent’s application record, as the case may be, at pages “x” to “y” of the appeal book. This is an acceptable (but not mandated) approach to addressing duplication, particularly where the appeal book would otherwise be voluminous. To be clear, avoiding duplication in the application records from the outset is preferable: Canada (Attorney General) v. Canadian North Inc., 2007 FCA 42 at para. 5.
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