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Federal Court - Record of Proceedings (2). Southern Railway of British Columbia Limited v. Vancouver Fraser Port Authority [Rule 317-318 - 'Material in the Possession of a Tribunal']
In Southern Railway of British Columbia Limited v. Vancouver Fraser Port Authority (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, here from an order which set aside an earlier case management order for "production of documents ... pursuant to Rules 317 and 318 [SS: 'Material in the Possession of a Tribunal'] of the Federal Court Rules", by the respondent in a JR. Key to the case is that the JR was brought against a Port Authority (alleged to be a tribunal for these purposes) which "has the power to devise and implement fees under section 49 of the Canada Marine Act.", and as well an agent corporation on the allegation that it was acting "in its capacity as a representative or agent" of the authority. Further, the JR applicant disputes that the respondent Port Authority and agent had authority to set the fees that they did, which would mean that they're not a tribunal subject to Rules 317-318.
Here the court considers the underlying JR record issue:[22] Associate judges and case management judges are obviously in a better position than a reviewing court when assessing whether a document or a category of documents is relevant for the purpose of a Rule 317 motion. A decision concerning the production of such documents will therefore not be interfered with lightly. However, the determination of the appropriate test when applying the law to a set of facts is always an extricable question of law: see Pfizer Canada Inc. v. Amgen Inc., 2019 FCA 249 at para. 38; Rahman v. Canada (Minister of Citizenship and Immigration), 2005 FC 430 at paras. 2-3; Tajadodi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1096. Contrary to SRY’s submissions, this is not a discretionary case management decision on a non-vital issue, open to numerous reasonable outcomes, but rather a discrete question of law on a vital issue in the context of the underlying judicial review proceeding. I am therefore of the view that the Motion Judge did not err in reviewing the Case Management Judge’s decision to apply the "“plain and obvious”" test on the standard of correctness.
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[24] In my view, none of these arguments holds sway. On a Rule 317 motion, the burden falls squarely on the applicant to establish the relevance of the documents sought, as well as the cost effectiveness and proportionality of the order that is being requested. As in any civil proceeding, the standard of proof is based on a balance of probabilities. This is to be contrasted to the test applicable upon a motion to strike, as noted by the Motion Judge, where an applicant must show that a notice of application is so clearly improper as to be bereft of any possibility of success: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588, 176 N.R. 48 at 600.
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[26] ... Rules 317 and 318 are premised on the notion that the Court has jurisdiction to deal with the application for judicial review in relation to which a request for material is made. As this Court stated in Canadian National Railway Company v. Canadian Transportation Agency, 2023 FCA 245, Rule 317 is meant to ensure that administrative decisions are subject to meaningful review and public scrutiny. It cannot be relied upon if the jurisdiction of the Court is in doubt. If DPWL is not a tribunal and/or has not made an order, SRY is not entitled to any production. To rule otherwise would put the cart before the horse, and potentially open the door to unwarranted fishing expeditions. As the Federal Court stated in 54039 Newfoundland and Labrador Limited (George Street Association) v. St. John’s Port Authority, 2011 FC 513 (at para. 6):Rule 317 cannot be used to compel the production of materials from an entity that is not a federal tribunal. If the GSA’s position here were to be accepted, parties could access information they have no entitlement to simply by naming an entity as a respondent in an application for judicial review and requesting production under rule 317. This cannot be the case. ....
[31] Before concluding, I wish to add a few words with respect to the alternative remedies available to a party in situations such as this. While Rule 317 was not meant to apply in a context where the jurisdiction to hear an application for judicial review is challenged, there are other avenues to obtain documents that are considered to be necessary by a party to be able to effectively pursue its legal rights. The limited purpose of that rule is to ensure that the Court seized of an application for judicial review and the parties have access to the record that was before the tribunal whose order is challenged. It is not meant to authorize a fishing expedition when it is arguable that there is no "“order”" made by a "“tribunal”", nor is it meant as a tool in the hands of creative litigants to kill an application for judicial review before complete disclosure has been made.
[32] To avoid the use of Rule 317 as an indirect summary judgment tool, a party can avail itself of various alternative recourses. The most obvious way to obtain additional evidence derives from Rule 308, whereby a party may cross-examine on affidavits submitted by the opposing side and compel the production of documents by subpoena pursuant to Rule 41. Another potential avenue may be to bring a motion on notice to all affected parties requesting the production of evidence necessary to allow an application to be meaningfully heard and determined, when a party is of the view that there are serious deficiencies in the evidentiary record before the Court: see, by way of analogy, Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128, as cited in Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153 [Preventous].
[33] The Court itself, of its own initiative or at the request of a party, can order that other material be filed if it considers that the application records of the parties are incomplete: see Rule 313. Apart from the authority granted by that rule, the Court could make use of its general supervisory power in administrative matters (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385) and its plenary jurisdiction to make orders necessary for the conduct of proceedings (Dugré v. Canada (Attorney General), 2021 FCA 8) to assist the parties, as recognized in Preventous (at para. 18). Finally, the Court could also rely on Rule 4, commonly referred to as the "“gap rule”", to compel the production of evidence that is considered essential for the efficient resolution of an issue. Needless to say, a party could also invite the Court to draw an adverse inference from missing evidence.
[34] In short, and keeping in mind that as a general rule, only the evidentiary record that was before the administrative decision-maker is admissible on judicial review, there is no dearth of tools at the disposal of the parties and of the Court to ensure that the party challenging the decision is able to mount an effective case, and that the Court, in exercising its reviewing role, is equipped with a full record to assess the defensibility and legality of an administrative decision. At the end of the day, no decision of the executive branch should be immunized from careful and meaningful review by the courts, either as a result of an incomplete record or for any other illegitimate reasons. . Walcott v. Public Service Alliance of Canada
In Walcott v. Public Service Alliance of Canada (Fed CA, 2024) the Federal Court of Appeal considered the normally-allowed JR record:[2] The applicant brought a motion to admit as new evidence two letters dated 1993, relating to the applicant’s termination grievance. The respondent opposed the motion. Generally, evidence on a judicial review application is limited to what was before the decision-maker, as the reviewing Court’s role is to consider the decision-maker’s decision, and not decide the issue afresh: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para. 19 [Access Copyright].
[3] We will dismiss the motion. The letters were not before the Board and do not fall into any of the recognized exceptions for admitting evidence not before the decision-maker: Access Copyright at para. 20. We add that if admitted, they would not have affected the outcome of this application.
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