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Federal Court - Appeal - Tribunal Record (2). Jewish National Fund of Canada Inc. v. Canada (National Revenue) [search and production re appeal records]
In Jewish National Fund of Canada Inc. v. Canada (National Revenue) (Fed CA, 2026) the Federal Court of Appeal considered a motion to summarily grant an appeal - the appeal being brought against "the Minister’s decision to revoke its status as a registered charity", in part because it was "fatally tainted by bias".
Here the court (Stratas JA) considers FCR R317-318 ['Applications - Material in the Possession of a Tribunal'] respecting the contents of an appeal record (R317-319 govern JR records, but applies to appeals under R350)) - and takes the oppourtunity to address some difficulties that have arisen in this area of law:A. The basis for search and production orders
[6] This is an administrative appeal and so administrative law principles largely apply: Canadian National Railway Company v. Canada (Transportation Agency), 2025 FCA 184. And some of the rules in the Federal Courts Rules, S.O.R./98-106 relevant to applications for judicial review apply here: see Rule 350 which makes Rule 317 (the production of the record underlying the administrative decision) and its case law relevant to an administrative appeal.
[7] Under Rule 317, "“[a] party may request material relevant to an application [or administrative appeal] that is in the possession of [an administrative decision-maker] whose order is the subject of the application [or administrative appeal] and not in the possession of the party by serving on the [administrative decision-maker] and filing a written request, identifying the material requested”".
[8] Under Rule 318, the administrative decision-maker can object to producing certain materials. If the objection is not settled, the parties proceed to Court.
[9] Where appropriate, the Court can make a search and production order against the administrative decision-maker. The Court can also permit cross-examinations to take place to see if any other documents should be produced.
[10] In this way, the evidentiary record for administrative appeals or judicial reviews is built and finalized. All Canadian jurisdictions have case law or legislative equivalents to Rules 317-318 and proceed in the same way.
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D. Searches and productions in this case
[14] Concerns about administrative immunity, meaningful review and accountability and a dearth of helpful case law in the area may well have prompted the June 10, 2025 search and production Order in this case, and the resulting huge amount of searching, producing and cross-examining thereafter.
[15] An appeal of a search and production order made by this Court lies only to the Supreme Court with leave, and no one has pursued that route: Ignace v. Canada (Attorney General), 2019 FCA 239 at paras. 20-29. Thus, the June 10, 2025 Order is final. In the absence of manifest error—and no one has alleged that sort of error—the Court will not question or cast into doubt that Order: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460; Miller v. Canada, 2002 FCA 370 at para. 10.
[16] But it cannot be denied that this administrative appeal — which must" “be heard and determined in a summary way” "under s. 180(3) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) — now has the flavour, if not the reality, of a slow-moving, complex action for abuse of process, bad faith decision-making, and abuse of public office.
[17] This sort of thing has happened all too often in judicial reviews and administrative appeals. Some guidance must now be given.
E. The two poles in our jurisprudence
[18] The allegation in this case is bias. But that is just one species of administrative misconduct or maladministration. Others include abuse of process and fraudulent or dishonest conduct. These reasons will use the general term "“maladministration”" to describe all these things.
[19] Our jurisprudence on Rule 317 search and production orders is inconsistent. Individual cases fall somewhere on a spectrum between two poles:. An allegation of maladministration can be enough. If a party alleges a serious enough form of maladministration, the Court will make a search and production order. Statements in cases like Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC 720 at paras. 50-52, Air Passenger Rights v. Canada (Attorney General), 2021 FCA 201 at para. 21 and Jewish National Fund of Canada v, Minister of National Revenue, 2025 FCA 114 at paras. 13-18 (the June 10, 2025 Order) place these cases reasonably close to this pole.
. An allegation of maladministration is not enough. Here, the Court requires something more underlying or surrounding the allegation, such as some evidence, before the Court will make a search and production order. Statements in cases like Humane Society of Canada Foundation v. Canada (National Revenue), 2018 FCA 66 especially at paras. 10-13, Ron W. Cameron Charitable Foundation v. Canada (National Revenue), 2023 FCA 175 at paras. 26-27 and Public Service Alliance of Canada v. Canada (Attorney General), 2025 FC 1126 place these cases reasonably close to this pole. F. An allegation of maladministration is not enough
[20] Many legal and practical reasons support this view.
[21] Time and time again, our Court has said that Rule 317 forbids "“fishing expeditions”", i.e., "“attempts to conduct discovery of material to see whether a ground of judicial review might exist”": Canadian National at para. 25; 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 at para. 15; Public Service Alliance of Canada v. Canada (Attorney General), 2025 FC 1126 at para. 13; and many others.
[22] But fishing expeditions often can take place despite judges’ best intentions. Even a carefully drawn and narrow search and production order, when carried out, can sprawl into much more. Searching, producing and cross-examining can lead to undertakings to search and produce more, triggering more cross-examining, and after that maybe even more. That’s if things are going well. Disputes along the way mean trips to Court and, after that, maybe more searching, producing and cross-examining and, who knows, maybe even more after that. The upshot? In some cases, by making a search and production order, judges have fuelled the fishing boat, cast off the mooring lines, and sent the boat off to trawl the deep for whatever fish are to be found.
[23] Take, for example, a Court making a search and production order based only on allegations, even serious allegations that sound in maladministration, without any circumstantial or direct evidence. These bare allegations must be seen for what they are—idle musings or gossip. Far from being a golden ticket to months or even years of inquiry, bare allegations don’t warrant any consideration at all.
[24] Here, counsel have a responsibility. They must remember that making bare allegations—alleging things without evidence—is unethical: see many jurisdictions’ rules of professional ethics. See also AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112 at para. 5, Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184, 321 D.L.R. (4th) 301 at para. 34, St. John's Port Authority v. Adventure Tours Inc., 2011 FCA 198, 335 D.L.R. (4th) 312; and many others. Those who allege something "“simply in the hope that something will turn up”" abuse the Court’s process: Kastner v. Painblanc (1994), 1991 CanLII 14420 (FCA), 58 C.P.R. (3d) 502, 176 N.R. 68 (F.C.A.) at para. 4. Incidentally, this has not happened here.
[25] Finally, and most importantly, the law. As mentioned above, administrative appeals, like judicial reviews, must" “be heard and determined in a summary way”": s. 180(3) of the Income Tax Act and s. 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. They are no substitute for a civil action for abuse of public office, with long and searching documentary and oral discoveries: see s. 28.4 of the Federal Courts Act, which provides that administrative appeals under s. 28 of the Act (similar to the statutory appeal in this case) cannot be converted into an action with discoveries, with all the delay and expense that entails. Instead, the law requires that administrative appeals and judicial reviews be fast and efficient, with procedures proportionate to the stakes and the public benefit: see oft-ignored Rule 3 of the Federal Courts Rules; and see Canada (Attorney General) v. Larkman, 2012 FCA 204 for why the law requires speed and efficiency in these proceedings.
[26] Thus, for all these reasons, a party seeking a search and production order must go beyond the allegations and give the Court something more.
G. Something more: an air of reality and proportionality
[27] The Court can make a search and production order when there is an air of reality to an allegation of maladministration, and the order is a proportionate measure. These two requirements embody all the competing values discussed earlier in these reasons—the wise use of resources, reducing expenses, expedition, proportionality, and the meaningful review and accountability of administrative decision-makers.
[28] In other areas of law, the Court insists on an air of reality before a resource-intensive, potentially distracting inquiry takes place. For example, there must be an air of reality to a criminal defence before it is left to a jury: see, e.g., R. v. Cinous, 2002 SCC 29, [2002] S.C.R. 3; R. v. Pan, 2025 SCC 12.
[29] And in administrative law, there must be an air of reality to an allegation of maladministration before a party can go behind the administrative decision-makers’ deliberative privilege and obtain their hearing notes and confidential briefing memos: Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965-966; Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221; Canadian National Railway Company v. Canada (Transportation Agency), 2023 FCA 245 at para. 31.
[30] What is an air of reality? It is perhaps best defined by what it is not. It is not suspicions, speculations, conjectures, imaginings, hunches, theories, beliefs or opinions.
[31] Instead, an air of reality is a tangible concern supported by some circumstantial or direct evidence. At this early stage, the evidence must be capable of being believed or, to put it negatively, not unbelievable from the outset. The Court, viewing the evidence in totality and keeping the concern about administrative immunization front of mind, must be able to conclude that, subject to concerns about proportionality, a deeper investigation into the allegations is warranted.
[32] As a matter of law, proportionality—a core tenet in most jurisdictions’ procedural law and in our procedural law by virtue of Rule 3 of the Federal Courts Rules—must also enter the mix. The Court must consider whether the probable benefits of a search and production order justify the probable detriments. There must be proportionality between:. the time and expense associated with carrying out a search and production order and its follow-up (including undertakings, cross-examinations, possible further forays to court and further orders and follow-ups) and the resources the Court will likely expend; and
. the importance of the matters at stake in the litigation, both to the parties and public interest. This includes public confidence in the administrative decision-maker and, more generally, our system of administrative justice. H. The motion for a search and production order: practical considerations
[33] For the reasons in paragraphs 20-26 above, a motion for a search and production order cannot itself become an exercise in searching and producing. The motion is only about whether an order permitting searching, producing and cross-examining is warranted, i.e., whether the moving party has shown proportionality and has produced sufficient evidence showing an air of reality behind its allegation of maladministration.
[34] The motion for a search and production order is not about whether the respondent can successfully defend against the moving party’s allegation. That is for the panel of the Court hearing the merits of the administrative appeal or judicial review based on the entire evidentiary record before the Court, including the evidentiary record that was before the administrative decision-maker, the evidence obtained from a search and production order and cross-examinations under it, and any supplementary evidence relevant to the merits that might be allowed into an administrative appeal under Rule 351 or a judicial review with leave of the Court.
[35] Thus, on a motion for a search and production order, only the moving party can file evidence that it says creates an air of reality. The respondent may cross-examine that evidence with a view to showing that the moving party’s evidence does not in law create an air of reality. The moving party cannot cross-examine to see if there is any more evidence that might support an air of reality. Were it otherwise, the motion for a search and production order would itself become an exercise in searching and producing, leading to all the detriments described in paragraphs 20-26 above.
[36] On a motion for a search and production order, evidence from the parties on the issue of proportionality is not needed. The Court can rely on its own experience in estimating, on the one hand the likely time and expense associated with a search and production order and all the possible, detailed follow-up orders that often have to be made concerning the allegation of maladministration in the case and, on the other hand, the importance of the matters at stake and other public interest considerations.
[37] When considering a motion for a search and production order, the Court should consider two other things.
[38] First, are there legal bars or insurmountable obstacles to relief for maladministration? If so, a search and production order to investigate maladministration will serve no purpose. Some examples are as follows:. If a party knew enough during the administrative proceeding to raise a concern about maladministration with the administrative decision-maker and did not do so, it may be barred by the doctrine of waiver from making the allegations later in Court: see Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at para. 38 and cases cited therein. The timely raising of a concern gives the administrative decision-maker a chance to address it before it makes its decision. Parties cannot harbour a concern and lay in the weeds.
. Allegations that every decision-maker in a decision-making department is implicated in maladministration will fail due to the doctrine of necessity. Under that doctrine, the department must still carry out its statutory responsibility to decide the matter, notwithstanding the maladministration: Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 1998 CanLII 833 (SCC), [1998] 1 S.C.R. 3 at paras. 4-7; Paré c. Lord, 2017 QCCS 656 at paras. 31-33; Brame v. Paramedic Association of New Brunswick, 2023 NBKB 47 at paras. 28-33.
. In some cases, the inquiry authorized by a search and production order will go nowhere because of legal professional privilege, public interest privilege, cabinet confidentiality, national security, and the like, with no means by which the Court can relax or circumvent them. [39] Second, are there alternatives that better accomplish administrative accountability while satisfying the need for efficiency, speed and conservation of resources under Rule 3 of the Federal Courts Rules? Some examples are as follows:. Should the party alleging maladministration be required to prosecute its allegation in a separate action for abuse of process, abuse of public office or regulatory negligence—proceedings with broad discovery procedures? This would allow the administrative law appeal or judicial review to continue without the allegation. The party alleging maladministration is likely not prejudiced by this: if the action is successful and maladministration is established, the final order made in the administrative appeal or judicial review can be set aside under Rule 399(2)(a) of the Federal Courts Rules.
. In rare cases, an administrative decision turns on a non-discretionary application of the law to the facts, and the facts and the law are so clear that the result is inevitable, i.e., only one decision, the one made by the administrative decision-maker, could have reasonably been made: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 142; Robbins v. Canada (Attorney General), 2017 FCA 24; Maple Lodge Farms v. Canada (C.F.I.A.), 2017 FCA 45; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at paras. 53-54. In these "“inevitable result”" cases, a procedural defect, of which bias is one variety, is of no consequence: see, e.g., Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202; Grover v. Alberta (Human Rights Comm.), 1996 CanLII 20067 (Alta. K.B.) (Mobil Oil applied in a bias case); and see also Histed v. Law Society of Manitoba, 2006 MBCA 89 at paras. 59-60 to the effect that a finding of bias renders an administrative decision voidable, not void ab initio for all purposes. Where a bias allegation is made and the "“inevitable result”" scenario is live, the Court might wish to decide the "“inevitable result”" issue first and delay the proceedings on the bias allegation. If the result was inevitable, the case is over and the bias allegation need not be pursued. I. Professional obligations
[40] Orders of the Court must be obeyed. Counsel, their clients, and those acting under their supervision must be punctilious in complying with search and production orders. The consequences of non-compliance are just too great. This should be explained to everyone doing the searching and producing.
[41] Misconduct can trigger severe cost consequences. Counsel can suffer serious professional sanctions. Civil liability can be in play. Criminal liability too: see the contempt provisions in Rules 466-472, and in the most serious cases, charges under the Criminal Code, R.S.C. 1985, c. C-46 could be laid.
[42] In extreme cases, the Court has the power to allow the appeal or judicial review under Rule 97(d); see also McMeekin v. Canada (Human Resources and Skills Development), 2011 FCA 165 at para. 32 and Abi-Mansour v. Canada (Aboriginal Affairs), 2014 FCA 272 at para. 12 (egregious conduct amounting to a serious abuse of process where no other remedy will do).
[43] At a more general level, if an administrative decision-maker and its staff carrying out a search and production order are later found to have participated in a cover-up, life-changing consequences—civil and criminal—will follow.
J. Court management
[44] A judge who makes a search and production order should remain seized with any interpretation or compliance issues and any later follow-up requests for supplementary orders. This prevents a newly assigned judge from spending weeks getting up to speed. It also leads to continuity and consistency in the Court’s management of the matter. And parties and their counsel will be more likely to comply with the Court’s order and act civilly to each other when they know that if they do otherwise, they will be hauled before the same judge. . 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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