|
Stratas JA - Judicial Review-Appeal Record. 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.
....
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. . Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] - though the case bears on JRs as well, here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes Stratas JA expounds and widens the range of documents 'relevant to' such motions, including the tribunal expanding it's search to other related case files that it holds [paras 16-17]:B. General principles and methodology
(1) The Federal Courts Rules
[6] This is a statutory appeal from a decision of the Agency: Canada Transportation Act, S.C. 1996, c. 10, s. 41. In its motion for disclosure, CN invokes Rule 317. Although Rule 317 speaks of “applications” and appears in Part 5 of the Federal Courts Rules, S.O.R./98-106, which explicitly concerns “applications”, it can be invoked in appeals from administrative decision-makers: Rule 350.
(2) Disclosure from administrative decision-makers for the purposes of statutory appeals and judicial reviews: general principles
[7] In recent years, governments have been assigning more and more responsibility to administrative decision-makers to decide matters of great public importance, influence and impact. In a mature, healthy democracy, these sorts of decisions must be open to meaningful review and public scrutiny:. Meaningful review. In our democracy, immunization of administrative decision-making and total prohibitions on judicial review are not allowed: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-105 and the numerous cases cited therein; see also Payne v. Ontario Human Rights Commission, (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.) at para. 161.
. Public scrutiny. Barriers to public scrutiny should be exceptional, permitted only to the extent necessary, and supported by evidence establishing a recognized legal ground for secrecy. The availability of meaningful review and public scrutiny of administrative decision-making ensures accountability, promotes better decisions, and increases public confidence in governance: Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein. [8] As our democracy has matured and developed, these principles have found greater recognition, at least as far as judicial reviews and statutory appeals of administrators’ decisions are concerned.
[9] In recent years, courts have narrowed the legal grounds for secrecy in proceedings, have become more willing to test justifications offered for secrecy, and have been more vigilant to ensure that the disclosure of evidence in proceedings is adequate: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 and Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (limits on secrecy in court); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 (narrowing of public interest privilege); Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 (enhancement of review of privilege under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5); Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965-966 and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (deliberative secrecy must sometimes give way so that there can be meaningful review); Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 53-54, Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 and Canadian Council for Refugees at paras. 111-112 (in appropriate circumstances adverse inferences can be drawn from an assertion of secrecy or a failure to disclose).
[10] In reviews of administrative decision-making—whether by application for judicial review or a statutory appeal—public scrutiny and meaningful review are interrelated. If an administrative decision-maker improperly withholds the documents and information it relied upon for its decision, the spectre of immunization of decision-making arises. The party trying to have the decision reviewed and the reviewing court itself cannot test whether the decision had a legitimate, rational basis and was consistent with the laws passed by our elected representatives. As a result, the administrative decision-maker can become a law unto itself, accountable to no one except itself: Tsleil-Waututh Nation at paras. 67-85.
[11] In our democracy, we simply do not allow that:“L’etat, c’est moi” and “trust us, we got it right” have no place in our democracy. In our system of governance, all holders of public power, even the most powerful of them—the Governor-General, the Prime Minister, Ministers, the Cabinet, Chief Justices and puisne judges, Deputy Ministers, and so on—must obey the law: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385; United States v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 5 U.S. 137 (1803); Magna Carta (1215), art. 39. From this, just as night follows day, two corollaries must follow. First, there must be an umpire who can meaningfully assess whether the law has been obeyed and grant appropriate relief. Second, both the umpire and the assessment must be fully independent from the body being reviewed. See the discussion in Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 77-79, Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81 at paras. 313-315 (dissenting but not disputed by the majority), and the numerous authorities cited therein.
Tyranny, despotism and abuse can come in many forms, sizes, and motivations: major and minor, large and small, sometimes clothed in good intentions, sometimes not. Over centuries of experience, we have learned that all are nevertheless the same: all are pernicious. Thus, we insist that all who exercise public power—no matter how lofty, no matter how important—must be subject to meaningful and fully independent review and accountability. (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132 at paras. 23-24.)
[12] In judicial reviews and statutory appeals from administrative decision-makers in the Federal Courts system, much of the heavy lifting is done under Rules 317 and 318. Rule 317 allows those applying for judicial review to “request material relevant to an application [or appeal] that is in the possession of [an administrative decision-maker] whose order is the subject of the application [or appeal] and not in the possession of the party [who is making the request]”. Rule 318 allows the administrative decision-maker to object.
[13] What is “relevant to an application [or appeal]” under Rule 317? The answer is found in the pleading: in the case of judicial reviews, the notice of application or in the case of statutory appeals, the notice of appeal.
[14] The Court must read the pleading “with a view to understanding the real essence of the application [or appeal]” and gaining “‘a realistic appreciation’ of the [proceeding’s] ‘essential character’”. The Court must not fall for skilful pleaders who are “[a]rmed with sophisticated wordsmithing tools and cunning minds”. Instead, it must read the pleading “holistically and practically without fastening onto matters of form”. See JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[15] Disclosure motions, whether within a judicial review or a statutory appeal, must be governed and abide by the foregoing principles. Non-disclosure that threatens the meaningfulness of judicial review, causes the immunization of administrative decision-making, or hinders or frustrates the prosecution and adjudication of a legitimate ground of review cannot be permitted. But attempts to conduct discovery of material to see whether a ground of judicial review might exist—the proverbial fishing expedition—also cannot be permitted: Tsleil-Waututh Nation at para. 115; 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, 392 N.R. 219 at para. 15. Attempts to use Rule 317 for a fishing expedition are common and the Court must never permit it. In special circumstances, however, the Federal Court may convert an application to an action, which may include examinations for discovery: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.4(2); Brake v. Canada (Attorney General), 2019 FCA 274, [2020] 2 F.C.R. 63; Canada (Human Rights Commission) v. Saddle Lake Cree Nation, 2018 FCA 228 at paras. 23-25.
[16] In assessing what material is responsive to a Rule 317 request, the Court must pay close attention to context. For example, take a decision concerning a one-off, isolated matter. All of the documents and information leading to the decision will be found in the one specific file for the case. But take a decision that is just the latest chapter in an ongoing regulatory project consisting of multiple decisions. The documents and information will rest in the specific file for the case but also in related files. See generally Bell Canada v. 7262591 Canada Ltd. (Gusto TV), 2016 FCA 123, 17 Admin L.R. (6th) 175 at paras. 14-15.
[17] In assessing relevance, the Court must also remember that Rule 317 is not a summary judgment provision. It is not meant to be a tactical opportunity for a respondent to nip in the bud a judicial review or statutory appeal before complete disclosure is made and analyzed. If there is an arguable case that the documents sought might well be relevant to the grounds or relief set out in the pleading, they should be disclosed. Fine, precise and final determinations of relevance are for the judge or panel hearing the merits of the application or appeal. By then, the judge or panel will have the benefit of the parties’ submissions on the complete evidentiary and legal picture and, thus, will be empowered to make the best possible decision on relevance.
[18] Also relevant to issues of disclosure are the principles of materiality and proportionality, the need for expedition and cost-effectiveness (Rule 3), and, in the case of applications for judicial review, the imperative that judicial review proceedings are to be heard and determined without delay and in a summary way (Federal Courts Act, s. 18.4): see generally Tsleil-Waututh Nation at paras. 82-84 and 158-159. But the spectre of partial or total immunization of administrative decision-making is the paramount concern: Tsleil-Waututh Nation at para. 166.
[19] Of course, legal privileges against disclosure and other confidentiality interests can be asserted in an objection under Rule 318. In appropriate circumstances, where a legal privilege against disclosure or an assertion of confidentiality is not absolute, the Court can devise creative orders that allow for necessary disclosure while protecting demonstrable, legitimate and significant interests in confidentiality: Canadian Council for Refugees at paras. 98-122 and Portnov v. Canada (Attorney General), 2021 FCA 171, 461 D.L.R. (4th) 130 at para. 51. . Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] (though the case bears on JRs as well), here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court interestingly adds 'open court' doctrine as a factor into such a disclosure motion, insofar as a party seeks confidentiality or secrecy over such sought material:[9] In recent years, courts have narrowed the legal grounds for secrecy in proceedings, have become more willing to test justifications offered for secrecy, and have been more vigilant to ensure that the disclosure of evidence in proceedings is adequate: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 and Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (limits on secrecy in court); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425 (narrowing of public interest privilege); Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 (enhancement of review of privilege under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5); Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965-966 and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 (deliberative secrecy must sometimes give way so that there can be meaningful review); Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 53-54, Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418 and Canadian Council for Refugees at paras. 111-112 (in appropriate circumstances adverse inferences can be drawn from an assertion of secrecy or a failure to disclose).
....
E. Disposition
[34] An order will issue in accordance with these reasons. In particular, the appeal book shall contain, in addition to the material listed in Rule 344(1), the material described in paragraph 25, above, with the exception of the briefing note.
[35] It is likely that some of this material is confidential. Thus, CN has sought a confidentiality order. However, CN has not made any submissions on why a confidentiality order should be made or what documents should be covered by it.
[36] It is possible that disputes could arise about the precise material covered by CN’s request and what individual documents are confidential. Thus, in the interests of minimizing disputes and having this matter proceed “as quickly as is practicable” as required by subsection 41(3) of the Canada Transportation Act, this Court will order that the parties work together to prepare agreed-upon indices for a public appeal book and a confidential appeal book for the Court’s review. The parties will also have to persuade the Court that a confidentiality order is supported by the principles in Sherman Estate and Sierra Club. In case the parties cannot agree on the indices or the material that is to be confidential, this Court will also provide for the exchange of submissions.
|
