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. Blank v. Canada (Justice)

In Blank v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an interlocutory appeal in an ATIA (Access to Information Act) JR, here of orders allowing the respondent "to file a confidential affidavit and confidential exhibits":
[2] The context is an application to the Federal Court for judicial review under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 [Access Act] of the respondents’ refusal to disclose certain records requested by the appellant.

[3] The respondents released a total of 24,730 pages with 20,111 pages redacted in whole or in part. The redactions were made pursuant to various provisions of the Access Act, including subsection 16(2), subsection 19(1), section 23 and paragraph 68(a).


[5] In connection with the section 41 application, the respondents brought a motion pursuant to Rule 151 of the Federal Courts Rules, S.O.R./98-106 [Rules] seeking to file a confidential affidavit with unredacted copies of the relevant records.


[9] The confidentiality order was issued pursuant to Rule 151 and subsection 47(1) of the Access Act. Rule 151 provides that the Court may order that material be treated as confidential, provided the Court is satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.

[10] Subsection 47(1) of the Access Act directs the Court, in the context of a section 41 application, to take precautions to avoid premature disclosure of information. Subsection 47(1) provides:
Court to take precautions against disclosing

47 (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of

(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or

(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists.

Précautions à prendre contre la divulgation

47 (1) Dans les procédures découlant des recours prévus aux articles 41 et 44, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :

(a) des renseignements qui, par leur nature, justifient, en vertu de la présente partie, un refus de communication totale ou partielle d’un document;

(b) des renseignements faisant état de l’existence d’un document que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’il existait ou non.
[11] The essence of a section 41 application is to determine whether statutory exemptions apply that were relied on by the government in withholding information: Blank v. Canada, 2005 FCA 405 at para. 18 [Blank 2005]. The Court’s process should not result in disclosure before the Court makes a substantive ruling on the availability of these exemptions.


[14] The appellant does not oppose the filing of a confidential affidavit altogether. Consistent with this Court's guidance in Blank 2005, the appellant acknowledges that the Confidential Affidavit should include all of the records at issue in the section 41 application.

[15] In Blank 2005 at paragraph 18, the Court stated that section 47 must apply not only to the record that is the subject of the section 41 (or section 42) proceeding, but to other material or information which, if disclosed in the course of the proceeding, would disclose some or all of the contents of the record itself.
. China Mobile Communications Group Co., Ltd. v. Canada (Attorney General)

In China Mobile Communications Group Co., Ltd. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (on further appeal) a Federal Court appeal of a Federal Court associate judge's motion order (within a JR) dismissing the appellant's FCR 317 request for "production of documents in the possession of the Governor in Council and the Minister" (to supplement the JR record). The Crown resisted by a Canada Evidence Act (CEA) [s.39] ['Confidences of the Queen’s Privy Council for Canada'] certificate regarding cabinet privilege.

In the below quotes the court considers the lower court's interpretation of the JR 'pleadings' (the grounds of JR set out in the Notice of Application), which the lower court had interpreted narrowly, as that interpretation influenced the range of the operation of R317:
[1] The appellants sought production of documents in the possession of the Governor in Council and the Minister of Innovation, Science and Industry (the Minister, or the Minister of Industry) under Rule 317 of the Federal Courts Rules, S.O.R./98-106. The Attorney General objected under Rule 318(2), and filed a certificate pursuant to section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 setting out objections to disclosure on the basis of Cabinet confidentiality. The appellants pursued an order compelling production of the material before both the Governor in Council and the Minister.


[30] The appellants say that the decisions below failed to recognize the “real essence” of their application for judicial review. They rely on JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 [JP Morgan] to argue that the Federal Court ought have undertaken a “holistic reading” of the notice of application, interpreting it as generously as possible. They emphasize that their application for judicial review seeks to challenge a “continuing course of conduct under the [ICA] statutory scheme”, under which both the Minister’s decision and the Governor in Council’s order are subsumed (Appellants’ Memorandum of Fact and Law at paras. 27, 33, and 39).

[31] The appellants also submit that the decisions below failed to acknowledge the clear language of their notice of application, which they say explicitly challenges the Minister’s decision along with the Governor in Council’s order. According to the appellants, “[t]he mere fact that the [Governor in Council’s order] was defined as a “Decision” in the [n]otice of [a]pplication cannot lead to the realistic conclusion that the [a]ppellants did not intend to challenge [the Minister’s referral]” (Appellants’ Memorandum of Fact and Law at para. 33). They point to four elements of their notice of application that they say put the Minister’s decision into issue:
a)The recital of the notice of application which references the Minister’s decision and requests that the issue be remitted to him or her (reproduced above at paragraph 15);

b)The grounds of review listed in the notice of application, which allege breaches of procedural fairness and deficiencies in the Minister’s actions;

c)The decision that was challenged in the notice of application’s recital being consequential to the recommendation; and

d)The Rule 317 request included with the notice of application, which sought production of material in the Minister’s possession.
[32] The appellants submit that the Associate Judge erred by declining to dispense with Rule 302, which limits applications for judicial review to one order per application. The appellants say that the fact that the challenged decisions consist of a “continuing course of conduct” shows that a separate application for judicial review would be a waste of resources. The appellants say that the Minister’s referral and the Governor in Council’s order are inextricably linked and must therefore give rise to an exception to the limitation established by Rule 302.


[34] With respect to the scope of the appellants’ notice of application, the respondents contend that the language of the notice of application is clear that the only decision under review is that of the Governor in Council; although the appellants point to errors made by the Minister in their notice of application, the respondents say that this does not expand the scope of Rule 317 to documents in the possession of anyone other than the decision-maker in question. The respondents characterize the appellants’ argument on this issue as an attempt to “artificially rewrite their [n]otice of [a]pplication by suggesting that the identifying characteristics of the decision they seek to review should be read as separate applications for judicial review” (Respondents’ Memorandum of Fact and Law at para. 37).


[37] Rule 317 permits a party to request material relevant to their application for judicial review that is in the possession of the tribunal whose order is the subject of the application:
317(1) 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 and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

317(1) Toute partie peut demander la transmission des documents ou des éléments matériels pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande, en signifiant à l’office une requête à cet effet puis en la déposant. La requête précise les documents ou les éléments matériels demandés.
[38] This Court has described Rule 317 as “a limited purpose tool to obtain an administrator’s record on a judicial review” (Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153, 477 D.L.R. (4th) 184 at para. 10). It ensures that the reviewing court has access to the same record and information as did the original decision-maker upon making their decision. Importantly, it is only this material that may affect the reviewing court’s decision. Material sought under Rule 317 must come from the administrative decision-maker in question, not others (Tsleil-Waututh at paras. 107 and 111; Rémillard v. Canada (National Revenue), 2022 FCA 63, 2022 A.C.W.S. 922 at para. 28; Canadian National Railway Company v. Canada (Transportation Agency), 2019 FCA 257, 313 A.C.W.S. (3d) 236 at para. 12; Canada (Attorney General) v. Iris Technologies Inc., 2021 FCA 244, 341 A.C.W.S. (3d) 416 at para. 36 [Iris Technologies]).

[39] 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 (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).

[40] Because of this, the content of the notice of application is important when considering what documents may be the subject of a request under Rule 317; such a request is “not available in relation to grounds and relief the notice of application fails… to set out” (Iris Technologies at para. 36).

[41] Where other government departments or agencies supply information to the administrative decision-maker, only the information that was actually before the administrative decision-maker is obtainable under Rule 317 (Tsleil-Waututh at para. 114, citing Eli Lilly and Co. v. Nu-Pharm Inc., 1996 CanLII 4073 (FCA), [1997] 1 F.C. 3 (C.A.) at 28-29). This leaves any other material beyond the scope of a Rule 317 request unless the decision or recommendation of that department is, in and of itself, subject to judicial review. Determining which documents the appellants may request under Rule 317 therefore requires a clear delineation of the decision, or decisions, the application seeks to judicially review.

[42] I see no error in the Federal Court’s refusal to interfere in the Associate Judge’s conclusion that the material in the possession of the Minister could not be subject to a request under Rule 317 on the basis that the Minister’s decision was not the subject of the judicial review.

[43] Although courts must gain a realistic appreciation of the application for judicial review’s essential character by reading it holistically and practically without fastening onto matters of form (JP Morgan at para. 50), this approach does not allow courts to read in elements of the application at the applicant’s urging where they do not exist on the face of the notice of application. The determination of what decision is challenged in an application for judicial review is a question so fundamental to the application that an applicant cannot call on the court’s generosity to achieve the broad interpretation of the application that they seek.

[44] The appellants’ notice of application states that it is an application for judicial review “in respect of an order of the Governor in Council dated August 6, 2021 and communicated to China Mobile Communications Groups Co., Ltd. (“China Mobile”) on August 9, 2021.” The recital goes on to describe the terms of this order, and defines it as “the Decision.” While the notice of application does describe the process leading to the referral in some detail, the only reference to the Minister’s decision in the notice of application’s recital comes at the very end, where the appellants note that “the Decision” was made following referral by the Minister. The notice of application adds no further description of the Minister’s decision, but does define it as “the Referral.”

[45] The relief sought in the notice of application relates exclusively to “the Decision”, making no mention whatsoever of “the Referral.” Specifically, the appellants seek an order setting aside “the Decision”, or, in the alternative, an order setting aside “the Decision” and remitting the issue to the Minister and Governor in Council.

[46] Reference to the Minister’s decision is conspicuously absent from both the notice of application’s recital providing an overview of the application for judicial review, and from its description of the relief sought. Although the notice of application alleges shortcomings in the Minister’s actions when articulating the grounds of review, reference to errors made by the Minister in the grounds of review does not change the decision being reviewed. For these reasons, I agree with the Federal Court that the Associate Judge properly found that the appellants have not sought to judicially review the Minister’s decision (FC Reasons at para. 15).

[47] I accept that multiple decisions that constitute a continuing course of conduct may be challenged in a single application for judicial review where the decisions were linked either by virtue of the statute, the decision-makers, the applicable legal questions, the timing of their issuance, or the commonality of facts or allegations and relief sought (Key First Nation v. Lavallee, 2021 FCA 123, 334 A.C.W.S. (3d) 677). I also accept that there may be situations where a preliminary decision or recommendation is subsumed in a final decision. But that is not the case here given the structure of the statute.

[48] The Court always has discretion to exceptionally permit judicial review of multiple orders or decisions under Rule 302. This discretion should be exercised broadly, with a view to ensuring that the essential nature of the applicant’s grievance is brought before the court. In reading notices of application, courts should concern themselves with the substance of the issues, not the form that they take. However, the court remains constrained by the statutory framework in issue. The ICA is clear that orders from the Governor in Council are reviewable separately from decisions of the Minister, as shown by the distinct and separate reference to each category of decision in the section of the ICA dealing with the availability of judicial review (section 25.6 of the ICA). The disposition of this appeal pivots on the unique statutory language of the ICA.

[49] Since the decisions here are not sufficiently linked, the appellants were not absolved of the obligation to identify the decisions they sought to challenge in their notice of application. In this case, the appellants identified only one decision that they sought to judicially review—the Governor in Council’s order. As the Federal Court rightly noted, if the appellants wished to judicially review a continuing course of conduct comprising the decision of the Minister and the Governor in Council, it was theirs to plead in the notice of application (FC Reasons at paras. 13-14).

[50] As a practical matter, the appellants cannot claim to have implicitly challenged the Minister’s decision on the basis that it is inextricably linked to the decision that they did challenge. The appellants themselves acknowledge that “there is a difference between the Minister’s decision to refer and the decision of the Governor in Council which is based on the Minister’s recommendation and other materials sent to the Governor in Council” (Notice of Appeal at para. 24, emphasis in original).
. Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)

In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered the law applicable to the compilation of a JR record of proceedings:
[77] In light of the applicants’ arguments and the fact that there was a transcript of the hearings before the CIRB, no evidence other than the transcript, the exhibits, other documents that were before the CIRB and, perhaps, the CIRB’s interim decisions are relevant to this application for judicial review.

[78] The general rule is that evidence in a judicial review application is limited to that which was before the administrative decision-maker because the task of the reviewing court is to assess the reasonableness of the administrative decision-maker’s decision and not to decide the case afresh. There are a limited number of exceptions to this rule. The exceptions allow, for example, for the filing of general background evidence that might assist the Court, evidence relevant to a claimed violation of procedural fairness or other procedural defect, or evidence to show that there was no evidence on a particular point before the administrative decision-maker (Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 F.T.R. 297 at para. 20; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 261 A.C.W.S. (3d) 441 at paras. 13–28; leave to appeal to S.C.C. refused, 36834 (9 June 2016)).

[79] Here, large chunks of the affidavits filed by both parties go far beyond the permissible exceptions to the general rule and are in essence a re-argument of the case before the CIRB. I have given no weight to the portions of the two affidavits that are inadmissible and have instead focussed on the documents appended to the affidavits that are relevant to the issues in this application.


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