Gray v. Canada (Attorney General)

Gray v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-03-12
Neutral citation
2019 FC 301
File numbers
T-1252-17
Decision Content
Date: 20190312
Docket: T-1252-17
Citation: 2019 FC 301
Ottawa, Ontario, March 12, 2019
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
TIM GRAY AND MUHANNAD MALAS
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS
[1] The Applicants, Tim Gray and Muhannad Malas, appeal the Order of Prothonotary Mandy Aylen, dated September 10, 2018, [the Order] pursuant to Rule 51(1) of the Federal Courts Rules, SOR/98-106 [Federal Courts Rules]. Prothonotary Aylen is the Case Management Judge [CMJ] for the underlying Application for Judicial Review. The CMJ’s Order dismissed the Applicants’ Rule 318 motion for production of additional documents, which were not included in the Certified Tribunal Record [CTR] produced in accordance with Rule 317 of the Federal Courts Rules.
[2] The issue on this Appeal is whether the CMJ erred in her primary finding that the material requested by the Applicants for production pursuant to Rule 317 was not relevant to the grounds alleged in the Notice of Application or in her alternative finding that the material requested was not otherwise producible because the material was not in the possession of the decision-maker and was not part of the record before the decision-maker.
[3] For the Reasons that follow, I find that the CMJ did not err in her primary or her alternative finding.
[4] The Applicant, Kim Perrotta, has discontinued her application and as a result, the style of cause is amended to remove her name.
I. Background
[5] In 2015, the United States Environmental Protection Agency issued a Notice of Violation against Volkswagen AG, alleging that some models of Volkswagen, Audi and Porsche diesel cars included a “defeat device” allowing the cars to circumvent emissions standards. Shortly after, Environment and Climate Change Canada [ECCC] announced an investigation into the matter in Canada. The ECCC Press Release dated September 22, 2015 announcing the investigation stated that Canadian legislation prohibits vehicle manufacturers from equipping vehicles with such “defeat devices” and that if sufficient evidence of violation is uncovered, enforcement action will be taken in accordance with the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA].
[6] The Applicants note that Volkswagen’s conduct in developing the “defeat device” caused serious damage to the environment and, more importantly, to the health of individuals. The Applicants also note that decisive action was taken in Germany and in the US. The convictions in the US resulted in enormous financial and other penalties.
[7] In 2017, Mr. Gray and Mr. Malas separately requested that ECCC open investigations into the alleged violations by Volkswagen and related entities [Volkswagen], pursuant to section 17 of CEPA. The requests alleged that Volkswagen:
Unlawfully imported non-compliant diesel cars;
Unlawfully applied the National Emissions Mark to non-compliant diesel cars and sold those cars;
Knowingly provided false and misleading information; and
Unlawfully resumed sales of 2015 model cars after only completing a “half-fix”.
[8] The Director General of the ECCC Environmental Enforcement Directorate, Heather McCready, responded to each request as the Minister’s Delegate. Ms. McCready declined to open an investigation into allegations 1 to 3 and agreed to investigate allegation 4 and report the investigation’s progress to the Applicants every 90 days, as required under section 19 of CEPA.
[9] The decision letter from Ms. McCready states:
With respect to allegations 1-3, an investigation has already been opened by Environment and Climate Change Canada (ECCC) Enforcement Branch and continues to be conducted into potential violations resulting from the importation into Canada of vehicles equipped with a defeat device. The offences alleged in your application are covered by the current investigation. In light of this, a Ministerial investigation will not be opened for these allegations.
With respect to allegation 4, ECCC will investigate all matters considered necessary to determine the facts relating to the alleged offence. As required under CEPA, I will keep you informed of the progress of this investigation every 90 days.
[10] In August 2017, the Applicants served and filed Notices of Application for Judicial Review, which were later consolidated. The Notice of Application describes Mr. Malas and Mr. Gray as representatives of environmental or public health organizations concerned about the conduct of Volkswagen, notes that the Applicants invoked their rights pursuant to CEPA to request the Minister to investigate, asserts that the decision of the Minister set out in the letter is “boilerplate”, and notes that ECCC staff clarified that the Minister would not provide progress reports to the Applicants with respect to the three allegations for which investigations were not opened.
[11] The Applicants seek an order to set aside the decision, to direct the Minister to open investigations into allegations 1 to 3 in accordance with section 17 of CEPA, and to provide progress reports, among other relief.
[12] The Applicants allege that the refusal to open investigations is ultra vires the CEPA. Paragraph 11 of the Notice of Application states:
11. The Minister’s decision to acknowledge Mr. Malas’s allegations and request for investigations, but to refuse to open investigations for three of the allegations, is ultra vires. Under CEPA ss.17-21, Mr. Malas has the right to request Ministerial investigations, and once the Minister acknowledged his requests, the Minister must provide him regular progress reports and/or reasons to refuse ab initio to open the investigations that he requested, whether or not ECCC has an allegedly similar investigation currently underway.
[13] At paragraph 12, the Applicants allege that the Minister’s decision is highly prejudicial to their other CEPA rights, stating that by refusing to open an investigation and provide progress reports, the Minister “sets those public participation rights at naught which is inconsistent with a purposive reading of CEPA, unaccountable to Canadians, and illegal.”
[14] The Notice also includes a request for production of material pursuant to Rule 317 as follows:
22. Having regard to the ratio on R317 in Cooke v. Canada, 2005 FC 712, all material possessed by the Respondent respecting ECCC’s “current investigation” referred to in the impugned decision; and
23. Any other records possessed by the Respondent respecting [the Applicants’] s.17 requests and the Minister’s decisions to open or not to open Ministerial investigations.
[15] On October 5, 2017, the Respondent produced a certificate listing 20 documents. These documents constitute the CTR. Items 1 to 15 were appended. Items 16 to 20 of the CTR were withheld on the basis of solicitor-client privilege and also on the basis of investigative privilege, in relation to item 20. The Applicants note that only one page of the documents produced was new; all others were already in the Applicants’ possession.
[16] The Respondent objected to producing further material on the basis that:
(i) the request is in the nature of discovery and improper under Rule 317;
(ii) additional materials are irrelevant to the applications;
(iii) additional materials were not used by the decision-maker in her deliberations nor do they form part of the record in relation to the decisions;
(iv) the request is too broad, vague or general to permit a focused search for records potentially relevant to the decisions subject to the applications;
(v) the requested documents are subject to investigative privilege as they form part of an on-going investigation; and
(vi) certain documents are subject to solicitor-client privilege.
[17] The Applicants then filed a motion for production of materials pursuant to Rule 318. They sought material related to the existing investigation not included in the CTR, as well as items 16 to 20.
[18] The Respondent’s responding motion record included an affidavit from Mr. Michael Enns, the Executive Director of Environmental Enforcement at ECCC. Mr. Enns was extensively cross-examined by the Applicants.
[19] The CMJ directed that the Applicants’ Rule 318 motion be bifurcated. The first phase of the motion would address whether the Court should order that a certified copy of all or part of the requested material be forwarded to the Registry. The second phase of the motion would proceed only in the event that material was ordered to be forwarded to the Registry and would determine whether that material contains Volkswagen Group Canada Inc.’s confidential information warranting the Court’s protection or any other limitation.
[20] One business day before the hearing of phase one of the Rule 318 motion, the Respondent provided the Applicants with a partially redacted copy of item 20, a memorandum that appears to have been prepared for Ms. McCready, which provided background, summarized the Applicants’ section 17 CEPA request and the ECCC’s obligations, and set out three options to respond to the request.
II. The Case Management Judge’s Decision Under Review
[21] The CMJ denied the Applicants’ motion. A summary of her decision at para 5 of her Order states:
For the reasons that follow, I find that the additional material requested by the Applicants beyond the material included in the Certified Tribunal Record is not relevant to the application as pleaded and need not be produced. Even if I am wrong in that regard, I am not satisfied that the additional material would otherwise be producible under Rule 317. Further, I find that the claims of solicitor-client privilege were properly asserted by the Respondent in relation to items 16 through 20 of the Certified Tribunal Record. Phase two of the Rule 318 motion shall therefore only proceed in relation to the remaining redactions to item 20 of the Certified Tribunal Record.
[22] With respect to the production of additional documents, the CMJ relied on Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 128, [2017] FCJ No 601 (QL) [Tsleil-Waututh]. The CMJ noted that the only material accessible under Rule 317 is material which is relevant to the Application, is actually in the possession of the administrative decision-maker and was before the decision-maker when making the decision. The CMJ also noted that relevance is determined with regard to the grounds of review alleged in the Notice of Application, read holistically. The CMJ emphasized that not everything which is admissible can be obtained under Rule 317, as these are separate concepts, citing Tsleil-Waututh at para 117.
[23] The CMJ concluded that the material requested by the Applicants is not relevant to the grounds of review set out in the Notice of Application. The CMJ noted that the Applicants argued that they need the additional material to test the decision-maker’s claim that the existing investigation covers their allegations. However, the Notices of Application allege that the refusal to open investigations is ultra vires “whether or not ECCC has an allegedly similar investigation currently underway”. The CMJ added that the Applicants’ assertion that the scope and status of the investigation is at issue “is entirely contradicted by the Applicants’ own pleading”.
[24] The CMJ also rejected the Applicants’ assertion that they had challenged the currency and coverage of the investigation by stating in their pleadings, “the Minister refused to open investigations for three of the four applications, because ostensibly these were ‘covered by [ECCC’s] current investigation’”. The CMJ found that this was a factual allegation.
[25] The CMJ also considered, in the event that she was wrong in finding that the material requested is not relevant to the grounds alleged in the Notice of Application, whether there was other material in the possession of the decision-maker, Ms. McCready, which was before her when the decision was made. The CMJ concluded that there was no such material.
[26] The CMJ found that the evidence was clear that Ms. McCready relied on the documents included in the CTR, oral advice that she had received from Mr. Enns and from the regional director of the Ontario region, and on her own personal knowledge of the existing investigation. The CMJ accepted that Ms. McCready had sufficient existing knowledge, based on her position and her involvement in the investigations.
[27] The CMJ rejected the Applicants’ submission that the investigation file was technically before the Minister (characterized by the Applicants as the administrative decision-maker as a whole) and should be imputed to be before Ms. McCready.
[28] With respect to the Applicants’ arguments related to Mr. Enns’ credibility and Ms. McCready’s failure to file an affidavit, the CMJ was satisfied that Mr. Enns’ credibility was not impugned and that an adverse inference due to the lack of any direct evidence from Ms. McCready was not warranted.
[29] The CMJ concluded that the material requested was not before Ms. McCready when she rendered her decision and is not prima facie producible under Rule 317.
[30] The CMJ then considered whether the requested material should be produced on the basis that it meets an exception to the general rule that only documents that were before the decision-maker should be produced. She concluded that this was not the case, noting that the Notices of Application do not raise allegations falling within any exception.
[31] The CMJ also noted concerns about the breadth of the Applicants’ request and the lack of precision.
[32] With respect to the production of items 16 to 20, the CMJ reviewed unredacted copies that were provided by the Respondent to her under seal and agreed that the claims of solicitor-client privilege asserted by the Respondent in relation to each document were properly made.
[33] The CMJ awarded the Respondent $1500 in costs on the motion. The CMJ rejected the Applicants’ assertions that they were partially successful to the extent that the Court directed the Respondent to produce items 16 to 20 to the Court under seal and because the Respondent disclosed a partially unredacted version of item 20 to the Applicants. The CMJ noted that this was a common practice where claims of solicitor-client privilege were asserted.
III. The Applicants’ Overall Position
[34] The Applicants allege that the CMJ made both errors of law and palpable and overriding errors of mixed law and fact and that no deference is owed. The Applicants made detailed arguments on all the issues that were addressed by the CMJ.
[35] The Applicants note that the Minister’s decision provided only one reason for refusing to launch an investigation: “[T]he offences alleged in your application are covered by the current investigation. In light of this, a Ministerial investigation will not be opened for these allegations.” The Applicants submit that the decision letter raises the issue of the currency and coverage of ECCC’s investigation. They submit that they require the documents to test the reason given, otherwise the decision will be immunized from judicial review. The Applicants argue that the CMJ lost sight of the fact that the judicial review would be determined on the standard of reasonableness.
[36] The Applicants argue that the documents requested are relevant within the meaning of Rule 317. The Applicants submit that the CMJ erred in determining what was relevant to the judicial review by misinterpreting the jurisprudence and by reading the Notice of Application technically and formalistically, rather than in a holistic and practical manner.
[37] The Applicants further submit that Rule 317 does not restrict production to documents that were possessed and considered by Ms. McCready. Rather, it extends to documents that should have been before her, particularly given that she was at the top of the “chain of command” of the Volkswagen investigation.
[38] The Applicants also argue that the CMJ erred in her assessment of the evidence regarding what was actually in the possession of Ms. McCready when she rendered her decision and that the evidence does not support the CMJ’s finding.
IV. The Respondent’s Overall Position
[39] The Respondent submits that the CMJ did not err in her understanding of the law with respect to Rule 317 or in finding that the documents requested were not relevant to the grounds pleaded in the Notice of Application and, alternatively, were not otherwise producible because the documents requested were not before the decision-maker, Ms. McCready. Nor did the CMJ err in finding that the request was overbroad.
[40] The Respondent notes that the production of documents for judicial review differs from the broader discovery in the context of an action. The Respondent disputes the Applicants’ submission that they need a broader record to test their suspicion that the ECCC investigation is not current and does not cover their allegations. The Applicants’ submission that their case will be stronger with a bigger record is not the test under Rule 317.
[41] The Respondent notes that the Notice of Application alleged only that the decision to refuse to open an investigation was ultra vires, not that the existing investigation was not duplicative of the allegations.
[42] The Respondent disputes that documents must be produced regardless of whether they were considered by the decision-maker. The Respondent argues that the CMJ did not err in relying on the affidavit evidence, which established what was and what was not considered by Ms. McCready.
[43] The Respondent adds that the CMJ did not err in declining to draw an adverse inference from the use of affidavit evidence on information and belief, noting that this is specifically permitted on such motions and that it is entirely within the CMJ’s discretion whether to draw any inferences.
V. The Issues
[44] The Applicants raised several arguments on this appeal which I have restated to align with the CMJ’s findings.
[45] With respect to the CMJ’s key finding that the documents requested are not relevant given the grounds alleged in the Notice of Application, the Applicants argue that:
- The CMJ erred in law in her interpretation of the governing jurisprudence with respect to relevance—in particular, by relying on the summary set out in Tsleil-Waututh, rather than on primary jurisprudence, including that which establishes that a broad interpretation should be given to “relevance” within the meaning of Rule 317;
- The CMJ erred in law by reading the Notice of Application in a formalistic manner and not considering the overall allegations, which resulted in the CMJ’s incorrect finding that the documents were not relevant; and
- The CMJ erred by failing to appreciate that the Application for Judicial Review would be conducted on the reasonableness standard, which also resulted in the CMJ’s error in determining whether the documents requested were relevant.
[46] With respect to the CMJ’s alternative or additional finding that the documents are not otherwise producible because the documents were not in the possession of the decision-maker and not considered by the decision-maker, the Applicants argue that:
- The CMJ erred in law in her interpretation of the governing jurisprudence regarding possession—again by relying on general principles summarized in Tsleil-Waututh rather than primary jurisprudence; and
- The CMJ erred in law and made a palpable and overriding error of mixed law and fact in her assessment of the evidence regarding what was in the possession of the decision-maker—in particular, by accepting inadmissible hearsay in the affidavit of Mr. Enns, which was not demonstrated to be necessary or reliable, and by failing to draw an adverse inference from the failure of the Respondent to provide an affidavit from Ms. McCready, who was otherwise available and had first-hand knowledge.
[47] The Applicants clarified that they are not pursuing their appeal of the costs awarded by the CMJ. However, the Applicants emphasize that awarding costs against them is not in the interests of justice given that they are acting in the public interest.
VI. The Standard of Review
[48] The parties agree that the applicable test for reviewing discretionary orders of motions judges, including case management judges, is set out in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at para 66, [2017] 1 FCR 331 [Hospira]. Such orders are to be reviewed on the ordinary civil appellate standard established in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at paras 19-37 [Housen]. Questions of law are to be reviewed on a correctness standard, and questions of fact are owed deference unless there is a palpable and overriding error. Questions of mixed fact and law are also owed deference absent palpable and overriding error, unless the analysis contains an extricable error of law or legal principle. If so, no deference is owed (Hospira at para 66).
[49] The Parties disagree on whether certain issues are questions of law, fact or mixed fact and law or whether there is an extricable question of law in some issues of mixed fact and law. They also disagree on the meaning of “palpable and overriding error”.
[50] The distinction between the three types of questions was explained in Teal Cedar Products Ltd v British Columbia, 2017 SCC 32, [2017] 1 SCR 688 at para 43 [Teal Cedar]:
In particular, it is not disputed that legal questions are questions “about what the correct legal test is” (Sattva, at para. 49, quoting Southam, at para. 35); factual questions are questions “about what actually took place between the parties” (Southam, at para. 35; Sattva, at para. 58); and mixed questions are questions about “whether the facts satisfy the legal tests” or, in other words, they involve “applying a legal standard to a set of facts” (Southam, at para. 35; Sattva, at para. 49, quoting Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
[51] With respect to the meaning of palpable and overriding error, the Applicants submit that the description in Hospira governs, since Hospira was a decision of a five member panel of the Federal Court of Appeal. The Applicants submit that Hospira, at para 68, equates palpable and overriding error to situations where a motions judge has misapprehended the facts or failed to give weight to relevant circumstances.
[52] I do not view the Court of Appeal’s statements in Hospira as defining what a palpable and overriding error is. The passage relied on by the Applicants at para 68 is in the context of the Court’s finding that the standard of review for a discretionary decision of a prothonotary and that of a motions judge amounts to the same thing. The Court noted that the jurisprudence had used different language in setting out the standards and that simplicity and clarity should prevail and, therefore, that only the Housen standard should apply to discretionary decisions of both judges and prothonotaries.
[53] Palpable and overriding error is a higher standard than a misapprehension of the facts or a failure to properly weigh relevant circumstances. The Court of Appeal has provided a consistent definition of palpable and overriding error in its jurisprudence both before and after Hospira. For example, in Canada v South Yukon Forest Corp, 2012 FCA 165 at para 46, [2012] FCJ No 669 (QL), Justice Stratas stated:
[46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
[54] More recently in Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157, [2017] FCJ No 726 (QL), Justice Stratas provided the same definition of palpable and overriding error (at paras 61-64). Justice Stratas provided examples of a palpable error at para 62:
Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence.
[55] Justice Stratas further explained at para 64 that an overriding error is “an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding.” The judgment of the first-instance court remains in place.”
[56] In Housen, the Supreme Court of Canada provided examples of an extricable question of law or legal principle at para 36, noting that this would include the “application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle”. In Teal Cedar, the Supreme Court of Canada cautioned lower courts against finding extricable errors of law too readily, noting at para 45 that “mixed questions, by definition, involve aspects of law”, adding the caution that counsel are motivated to “strategically frame a mixed question as a legal question”.
[57] One final principle applies in the present circumstances. A Case Management Judge is familiar with the circumstances and issues in a particular case and is owed deference, absent a reviewable error (Hospira at para 103).
VII. Did the Case Management Judge err in determining that the material requested was not relevant?
A. The Applicants’ Submissions
[58] The Applicants submit that the CMJ erred by: misreading the jurisprudence and ignoring other jurisprudence which calls for a liberal interpretation of relevance pursuant to Rule 317; reading the Notice of Application in a formalistic, rather than holistic, manner; and failing to understand that reasonableness governs the judicial review.
[59] First, the Applicants submit that the CMJ erred in law by interpreting relevance too narrowly. They argue that a decision-maker is obliged to produce relevant documents and that the jurisprudence has established that “relevant” should be interpreted liberally. The Applicants submit that relevant documents are those which may affect the Court’s decision on the application. The Applicants submit that documents related to the investigation’s currency and coverage are relevant and necessary to the Court’s determination of their Application for Judicial Review.
[60] The Applicants argue that the CMJ erred in relying on the summary of principles stated in Tsleil-Waututh rather than assessing the original jurisprudence and other jurisprudence, which has not been overruled, including Canada (Attorney General) v Telbani, 2014 FC 1050, 251 ACWS (3d) 457 [Telbani]; Norwegian v Canada (Minister of Environment), 2005 FC 374, [2005] FCJ No 474 (QL) [Norwegian]; Friends of the West Country Assn v Canada (Minister of Fisheries and Oceans) (1997), 130 FTR 206, [1997] FCJ No 557 (QL) (TD) [Friends of the West]; and Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455, [1995] FCJ No 555 (QL) (CA) [Pathak]. The Applicants submit that these cases support a more expansive view of what is relevant and should be provided in the record of the decision-maker. The Applicants also argue that the main issue in Tsleil-Waututh was whether exceptional evidence—i.e. evidence beyond what was before the decision-maker—could be produced and that the comments of Justice Stratas regarding Rule 317 more generally are obiter.
[61] Second, the Applicants submit that the CMJ erred by reading the Notice of Application in a narrow and formalistic, rather than holistic, manner which led her to conclude that the currency and coverage of the existing investigation do not relate to the grounds of review. Although the CMJ noted the guiding principle from Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250, [2013] FCJ No 1155 (QL) [JP Morgan], she failed to apply it.
[62] The Applicants argue that the CMJ’s failure to read the pleading holistically is an error of law or alternatively an error of mixed fact and law with an extricable legal principle and no deference is owed to the CMJ’s reading of the Notice.
[63] The Applicants point to para 9 of their Notice of Application, which states, “Again the Minister refused to open investigations for three of the four allegations because ostensibly these were “covered by [ECCC’s] current investigation””. The Applicants argue that the use of the word “ostensibly” signalled that they challenged the currency and coverage of the ECCC investigation—in other words, the reasonableness of the decision.
[64] Third, the Applicants submit that the CMJ failed to understand that their Application for Judicial Review will be reviewed on the reasonableness standard as articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
[65] The Applicants submit that although they assert in the Notice of Application that the Minister’s decision to refuse to open an investigation for three allegations is ultra vires, this does not invite only a correctness review on the jurisdictional issue. They submit that it is clear that they are challenging the reasonableness of the decision which stated that the ECCC’s existing investigation “covered” the Applicants’ request. They submit that the CMJ focused on their allegation of ultra vires and failed to appreciate that the judicial review would proceed on the standard of reasonableness, which should have informed her determination of relevance for the purpose of production under Rule 317.
[66] The Applicants acknowledge the CMJ’s comment that the sufficiency of the record is an issue for judicial review. However, they argue that their case would be stronger if they had the relevant documents produced to inform whether the decision is reasonable.
B. The Respondent’s Submissions
[67] The Respondent notes that document production is more limited on a judicial review than in an action. Material must be actually relevant to fall within Rule 317 and material which could be relevant is not covered by this rule. Relevance is defined by the grounds of review in the Notice of Application, which must be read holistically.
[68] The Respondent notes that the Notice of Application alleges only that the Minister’s decision to refuse to open investigations into the Applicants’ allegations was ultra vires and submits that the CMJ did not err.
C. Rules 317 - 318
[69] The Rules applied by the CMJ regarding production of documents are set out below:
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.
…
318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
318 (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l’office fédéral transmet :
(a) a certified copy of the requested material to the Registry and to the party making the request; or
a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;
(b) where the material cannot be reproduced, the original material to the Registry.
b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
(2) Si l’office fédéral ou une partie s’opposent à la demande de transmission, ils informent par écrit toutes les parties et l’administrateur des motifs de leur opposition.
(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).
(3) La Cour peut donner aux parties et à l’office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d’une opposition à la demande de transmission.
(4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.
(4) La Cour peut, après avoir entendu les observations sur l’opposition, ordonner qu’une copie certifiée conforme ou l’original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.
D. The CMJ did not err in finding that the documents were not relevant within the meaning of Rule 317
(1) The CMJ did not err in law in her interpretation of Rule 317
[70] The CMJ did not err in her reliance on or understanding of the law that governs the determination of relevance pursuant to Rule 317.
[71] I disagree with the Applicants’ submission that the CMJ erred in relying on the principles summarized in Tsleil-Waututh to the exclusion of other original jurisprudence. I also disagree with the Applicants that Tsleil-Waututh is about exceptional evidence and that Justice Stratas’ summary of the law regarding Rule 317 more generally is obiter. Contrary to the Applicants’ view, in Tsleil-Waututh the Court of Appeal responded to the applicants’ motion for further disclosure pursuant to Rule 317. Several issues were identified, beginning with the importance of the record on judicial review, the function of and limits on Rule 317 and the admissibility of evidence other than that which was before the decision-maker (i.e. the exceptions to the general rule of admissibility). Justice Stratas noted, at paras 64-66, the need to see the forest from the trees in matters where procedural rules were relied on and to consider the basis for the rules and the general principles. He noted that this approach was necessary to place Rule 317 in context. Justice Stratas explained the importance of the record of the decision-maker to the Court on judicial review. He then set out the principles governing Rule 317 at paras 88-93 and 106-119, and addressed the exceptions to the Rule. These principles were derived from Court of Appeal jurisprudence and were elaborated upon.
[72] The principles set out in the Tsleil-Waututh decision are not, as the Applicants suggest, obiter. The principles reflect the law that is binding on this Court and was binding on and applied by the CMJ.
[73] The jurisprudence preferred by the Applicants is, with the exception of Pathak, not appellate jurisprudence. In addition, it must be considered in its proper context. Focusing on isolated passages or without referring to the cases cited therein may lead to extrapolation and misinterpretation. On the whole, the jurisprudence relied on by the Applicants, while suggesting a broad or liberal interpretation of relevance within Rule 317, does not contradict the principle that relevance is determined with regard to the grounds pleaded. It is also notable that the jurisprudence relied on by the Applicants cites the same passage of Pathak as does Tsleil-Waututh.
[74] With respect to the Applicants’ reliance on Telbani at para 40 to support their argument that relevance is a broad concept and that the record extends to documents that should have been before the decision-maker, the context in Telbani should be noted. In Telbani, the Attorney General had withheld documents from the tribunal record relying on section 38.01 of the Canada Evidence Act (claiming that the information was potentially injurious to national security). In determining whether the documents should be excluded from disclosure or redacted, the Court noted that the first step is to determine whether the information sought to be excluded is relevant. Of note, the Respondent conceded that most documents withheld were relevant.
[75] In Telbani, the Court cited one line in Pathak, that relevance means any document that “may affect the decision that the Court will make on the application”, rather than the whole passage.
[76] In Pathak, the Federal Court of Appeal considered the predecessor to Rule 317. The motions judge had found that all documents relied on by the investigator in preparing a report for the Canadian Human Rights Commission should be produced to the applicant because the investigator conducted the investigation as an extension of the Commission. The Court of Appeal disagreed.
[77] Justice Pratte, with Justice Décary concurring, held that the Rule provides that the material to be produced must be relevant to the application for judicial review. Relevance is determined in relation to the grounds of review set out in the Notice of Motion. If the material is not relevant, it need not be produced. Justice Pratte found that there was nothing in the notice of motion to cast doubt on the investigator’s report and that the report must be taken as complete summary of the evidence before him. As a result, the documents requested would not be useful. The line that was cited in Telbani is part of the following paragraph of Pathak at page 460:
A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.
[78] Justice MacGuigan agreed with Justice Pratte on this key finding, and made additional comments. Justice MacGuigan found at pages 463-464 that although the documents relied on by the investigator were in the Commission’s custody, they were not all actually before the Commission when it made its decision and were, therefore, not producible.
[79] In Friends of the West, the Court noted that possession and relevance to the grounds for judicial review are the tests for the predecessor to Rule 317. The Applicants appear to rely on para 21 where the Court stated:
If part of its case is that the scope was too restricted, the applicant must have all of the relevant documents which may tend to prove this in order to make out its argument, if it can. To hold otherwise would prejudice the applicant.
[80] In Friends of the West, the Court went on to review each request and objection, noting (at paras 31-33) that relevance must be determined with respect to the grounds set out in the originating notice of motion. The Court allowed some further production and refused other requests.
[81] In the present case, despite the Applicants’ submission that the issue is the coverage of the investigation, the CMJ found that this was not pleaded as a ground of judicial review. The principle remains that relevance is determined in relation to the grounds pleaded. Friends of the West has also been characterized in subsequent jurisprudence as relying on an exception to