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Federal Court - Record of Proceedings (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. . Beaulieu v. Public Service Alliance of Canada
In Beaulieu v. Public Service Alliance of Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a labour JR, here from "a decision of the Federal Public Sector Labour Relations and Employment Board (the "“Board”") summarily dismissing the unfair labour practice complaint that he filed against his union on the basis that it was untimely".
Here the court considers a JR record:[16] Judicial review is generally to be conducted based on the record that was before the administrative tribunal whose decision is under review: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22, at para. 19. While there are limited exceptions to this principle, Mr. Beaulieu has not identified any circumstances in this case that would allow us to supplement the evidentiary record. . 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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