Rémillard v. Canada (National Revenue)

Rémillard v. Canada (National Revenue)
Court (s) Database
Federal Court Decisions
Date
2020-11-17
Neutral citation
2020 FC 1061
File numbers
T-1244-19
Decision Content
Date: 20201117
Docket: T-1244-19
Citation: 2020 FC 1061
[ENGLISH TRANSLATION]
Montréal, Quebec, November 17, 2020
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
LUCIEN RÉMILLARD
Applicant
and
MINISTER OF NATIONAL REVENUE
Respondent
ORDER AND REASONS
I. Overview
[1] This motion raises the question of whether taxpayers’ tax information, which is clearly treated as confidential when in the hands of the respondent, the Minister of National Revenue [Minister], retains this same character once transmitted to the Registry of the Federal Court [Registry] pursuant to section 318 of the Federal Courts Rules, SOR/98-106 [FCR]. If such is not the case, the applicant, Lucien Rémillard, argues that this section is of no force or effect or should be given a reading down, as it would result in an unreasonable seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, 1982, c 11 (UK) [Charter].
II. Facts
[2] Mr. Rémillard is a retired businessman who claims to have established himself in Barbados and thus to have become a non-resident for the purposes of the Income Tax Act, RSC 1985, c 1 (5th Supp) [ITA], effective November 15, 2013.
[3] Since 2015, the Minister has been auditing Mr. Rémillard’s residency status but to date has still not reached a conclusion. During this audit, the Canada Revenue Agency [CRA] made requests for administrative assistance from various countries, which were challenged by Mr. Rémillard on July 31, 2019, by an application for judicial review to have said requests for administrative assistance cancelled.
[4] In the underlying application for judicial review, Mr. Rémillard used the procedure provided for in sections 317 and 318 of the FCR to have disclosed to him a certified copy of various documents concerning him obtained or created by the CRA under the powers conferred on it by the ITA. I would like to point out that Mr. Rémillard did not seek disclosure of all the documents in the CRA file, but only the documents and information that were listed in his transmission request under section 317 of the FCR [the Information].
[5] After the transmission request under section 317 of the FCR was served by counsel for Mr. Rémillard, the CRA forwarded to the Registry in two parts, on August 30, 2019, and October 4, 2019, in accordance with section 318 of the FCR, a certified copy of the Information that was treated by the Registry as public documents and placed in the annex to the Court file as provided for in paragraph 23(2)(c) of the FCR. A certified copy of the Information was also sent to Mr. Rémillard’s counsel.
[6] On November 1, 2019, Mr. Rémillard served the affidavits [Affidavits] in support of his application for judicial review on the Minister in accordance with section 306 of the FCR.
[7] On January 14 and 15, 2020, a journalist from the Journal de Montréal contacted Mr. Rémillard and one of his sons to ask questions about the application for judicial review. This is how Mr. Rémillard was informed that the journalist was in possession of the Information.
[8] On the night of January 15 to 16, 2020, Mr. Rémillard’s counsel filed an ex parte motion with this Court for an emergency interim order of confidentiality and a publication ban, for a period of ten days. Such an interim order to ensure that the Information would be treated as confidential under section 151 of the FCR and that its contents would not be published [Interim Order] was made by this Court in the early hours of January 16, 2020.
[9] In accordance the Interim Order, on January 16, 2020, Mr. Rémillard filed the present motion for order of confidentiality. The Interim Order was subsequently extended until the hearing of this motion for order of confidentiality was held before me, on August 31, September 1 and 4, 2020.
[10] On March 12, 2020, Mr. Rémillard served a notice of constitutional question on the Attorney General of Canada and on those of the provinces. The notice of constitutional question was filed on March 18, 2020.
[11] On August 21, 2020, the Minister reproduced the Affidavits, as well as some material in support of them, in his respondent’s record filed under section 310 of the FCR in preparation for the hearing on this motion for order of confidentiality.
[12] On August 24, 2020, I extended the Interim Order to the Affidavits and ordered that Volume I of the respondent’s record filed with the Registry on August 21, 2020, in paper and electronic formats, be therefore removed from the Court’s public record and kept under seal by the Registry.
[13] On September 4, 2020, prior to the conclusion of the hearing on this motion for order of confidentiality, I ordered that the Interim Order be extended so that the Information and Affidavits reproduced in Volume I of the respondent’s record filed with the Registry on August 21, 2020, in both paper and electronic format, remain confidential until the judgment to be rendered on this motion for order of confidentiality.
III. Issues
[14] The issues are the following:
Does the Information that has been transmitted to the Registry pursuant to section 318 of the FCR become public documents because of its transmission to the Registry?
If so, does transmission to the Registry under section 318 of the FCR unjustifiably contravene section 8 of the Charter?
To the extent that section 318 of the FCR has force and effect constitutionally, should the Information be subject to an order of confidentiality and publication ban under section 151 of the FCR?
IV. Discussion
A. Does the Information that has been transmitted to the Registry pursuant to section 318 of the FCR become public documents because of its transmission to the Registry?
[15] First, Mr. Rémillard submits that the transmission of the Information following the procedure established by sections 317 and 318 of the FCR does not make them public and argues that it is the responsibility of the Minister or the Registry to take measures to preserve the confidentiality of documents transmitted under section 318 of the FCR until the documents are filed with the Court by one of the parties, for example, by filing the parties’ records under sections 309 and 310 of the FCR.
[16] In addition, according to Mr. Rémillard, this Information would be confidential for the following reasons:
a) The procedure provided for in sections 317 and 318 of the FCR, in the context of an application for judicial review, is a method of pre-trial discovery. Thus, all documents transmitted to the Registry under section 318 of the FCR are subject to an implied rule of confidentiality, even in the absence of an explicit rule in the FCR. The open court principle would therefore come into play only once those documents have been introduced into evidence.
b) The Information is be tax information whose confidentiality is intrinsically protected by the ITA.
c) Public disclosure of documents transmitted to the Registry under section 318 of the FCR upon receipt would render section 151 of the FCR superfluous in the context of judicial review proceedings.
[17] I will discuss the three reasons for confidentiality separately. However, I will make a preliminary remark beforehand.
[18] Mr. Rémillard challenges the notion put forward by the Minister that the transmission of the record from an administrative decision-maker to the Registry constitutes a “pressing and substantial” objective at the heart of the Court’s constitutional power of review and avoids shielding that administrative decision-maker from review of their decisions, as discussed by Justice Stratas in Slansky v Canada (Attorney General), 2013 FCA 199 [Slansky]. He makes several arguments to argue that section 318 of the FCR is simply a procedural rule of an administrative nature and not a rule intended to facilitate the exercise of the powers of review of administrative decisions by the Court. I must say at the outset that one does not preclude the other. A rule of administrative procedure may be intended to facilitate the exercise of the Court’s power to review administrative decisions.
[19] Mr. Rémillard raises the point that if the procedure provided for in sections 317 and 318 of the FCR were so important to the exercise of the Court’s powers of review:
this procedure would not be optional or, in other words, it would not depend on the willingness of the parties to request a copy of the certified tribunal record;
the Minister should not be able to object to the transmission of documents as allowed by subsection 318(2) of the FCR;
sections 317 and 318 of the FCR would have provided for the “filing” and not the “transmission” of the documents; and
this procedure would have an equivalent in the Code of Civil Procedure of Québec, RSQ, c C-25 [Code of Civil Procedure], which provides instead for the need for a court order to forward the documents to the Registry, without this requirement hampering the exercise of the Quebec courts’ judicial review power.
[20] I cannot accept these arguments for the following reasons:
The optional nature of the procedure does not affect its usefulness. Indeed, it is possible that the parties do not feel the need to resort to this procedure in cases where, for example, they already have all the evidence in their possession or because the questions submitted to the Court are purely legal in nature. However, it is clear that in the majority of cases the parties and the Court need this procedure, as is the case here, for example, which necessarily demonstrates the usefulness of the procedure.
Mr. Rémillard’s second argument is based on the premise that it is the administrative decision-maker who controls the contents of the certified record before the reviewing court. This is incorrect. It is important that the reviewing court be in possession of the administrative decision-maker’s record, but this does not mean that the normal rules of evidence, including the rules on the exclusion of evidence, are set aside. As noted by Justice Stratas in Lukács v Canada (Transportation Agency), 2016 FCA 103 at paragraph 12 [Lukács]:
When determining the validity of an objection, the Court is tasked with deciding the content of the evidentiary record in the proceeding—the application for judicial review—before it. The Court must, as in any other proceeding, decide on the admissibility of the evidence presented to it. As the master of its own proceedings, the Court is obliged to follow its own standards and not rely on the opinion of the administrative decision-maker: see Slansky, supra, at paragraph 274 (much of the following analysis is based on that judgment).
Section 318 of the FCR should not be considered in isolation. Justice Stratas went on to state the following at paragraph 15:
These Rules and powers allow the Court determining a Rule 318 objection to do more than just uphold or reject the administrative decision-maker’s objection to disclosure of material. The Court may craft a remedy that furthers and reconciles, as much as possible, three objectives: (1) a valid review of administrative decisions in accordance with section 3 of the Rules and section 18.4 of the Federal Courts Act and the principles set out in subsections 6 and 7 above; (2) procedural fairness; (3) the protection of any legitimate interest in confidentiality while ensuring the greatest possible publicity in accordance with the principles of the Supreme Court set out in Sierra Club of Canada, supra.
It is therefore obvious that the objection to the transmission provided for in subsection 318(2) of the FCR is only a codification of the principles relating to objections to the admissibility of a document. It would be illogical if the tribunal could not oppose the transmission of a document which would in any case be inadmissible in evidence. This codification does not, however, make the procedure established by sections 317 and 318 of the FCR less relevant.
Although I discuss this question in more detail further on, it seems to me that the reason the certified tribunal record is “transmitted” and not “filed” is to allow the parties to file afterwards, in their respective records in accordance with sections 309 and 310 of the FCR, only the documents [translation] “to be used by [the parties] at the hearing”. Although the transmission under section 318 of the FCR does not in itself immediately make the documents part of the evidentiary record, this does not mean that these documents upon receipt by the Registry do not form part of the Court file. Both types of files are subject to the same rules regarding public accessibility, that is, sections 23 and 26 of the FCR.
Article 530 of the Code of Civil Procedure states:
530. An application for judicial review is presented before the Superior Court on the date specified in the attached notice of presentation, which cannot be less than 15 days after service of the application. The judicial review is conducted by preference.
Unless the court decides otherwise, the application does not stay proceedings pending before another court or the execution of the judgment or decision under review. If necessary, the court orders that the exhibits it specifies be sent without delay to the court clerk.
A review judgment that rules in favour of the applicant is served on the parties if it orders that something be done or not be done.
[Emphasis added.]
Therefore, in Quebec, the exhibits are not automatically transmitted to the court registry, but can be sent on request. It seems to me that the difference between sections 317 and 318 of the FCR and article 530 of the Code of Civil Procedure is merely procedural in nature. The result, in the end, is the same: There is “transmission” of documents in the possession of the administrative decision-maker to the court registry. This argument, by raising the fact that this procedure exists in other jurisdictions, seems rather to support my view that this procedure is not unnecessary.
[21] Even if I accept Mr. Rémillard’s argument that the procedure provided for in sections 317 and 318 of the FCR merely constitutes an administrative mechanism allowing a party to perfect their record and that the authenticity of the evidence filed before the Court could be ensured by the adversarial process, as is the case in a civil dispute, for example, the procedure remains a safety net allowing the parties, and the Court, to verify the integrity of the evidence.
[22] Although the transmission of the certified record to the Registry is not a [translation] “means of submitting the evidential record to the Court”—which is done by filing the parties’ records in accordance with sections 309 and 310 of the FCR—it is a mechanism by which the parties may obtain the record used by the administrative decision-maker to render their decision. This procedure thus allows parties to “have the reviewing court [that is tasked with ruling on a decision’s reasonableness] consider the evidence presented to the tribunal in question” (Canadian Copyright Licensing Agency (Access Copyright) v Alberta, 2015 FCA 268 at para 13 [Canadian Copyright]; Hartwig v Saskatchewan (Commission of Inquiry), 2007 SKCA 74, 284 DLR (4th) 268 at para 24 [Hartwig]).
[23] In this regard, the procedure provided for in sections 317 and 318 of the FCR ensures the integrity of the record in case of doubt, and I am of the opinion that it meets a “pressing and substantial” objective and is an essential element of the process of administering evidence in the proceedings before the Court.
[24] To end on this point, I must point out that it is not up to me to reform the FCR in light of the usefulness of transmitting the certified record to the Registry and the public’s access to that record. If these provisions are really outmoded, it will be up to the Rules Reform Committee of the Federal Court—not me—to update them. In other words, even if these provisions were unnecessary (and we have just seen that they are not), they still exist and have the force of law, until proven otherwise.
Documents submitted under section 318 of FCR covered by open court principle
[25] Mr. Rémillard’s starting premise is that the documents transmitted to the Registry under section 318 of the FCR are not subject to the open court principle and are not part of the Court’s file which is accessible to the public. I reject this position.
[26] The principle that court proceedings are public “is unquestionably one of the fundamental values of Canadian procedural law” (Lac d’Amiante du Québec Ltée v 2858-0702 Québec Inc., 2001 SCC 51 at para 62 [Lac d’Amiante]; see also AG (Nova Scotia) v MacIntire, 1982 CanLII 14 (CSC), [1982] 1 SCR 175 [MacIntire]; Edmonton Journal v Alberta (Attorney General), 1989 CanLII 20 (CSC), [1989] 2 SCR 1326 [Edmonton Journal]).
[27] The public character of justice is one of the fundamental foundations of the Canadian judicial system, and open and accessible court proceedings are a corollary to freedom of expression. In Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522 [Sierra Club], the Supreme Court of Canada observed at paragraph 36:
The link between openness in judicial proceedings and freedom of expression has been firmly established by this Court. In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 23, La Forest J. expressed the relationship as follows:
The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place.
Under the order sought, public access and public scrutiny of the Confidential Documents would be restricted; this would clearly infringe the public’s freedom of expression guarantee.
[28] More specifically, documents sent to the Court are kept in the Court file and in its annex. Sections 23 and 26 of the FCR provide as follows:
Court file
Dossier de la Cour
23(1) For each proceeding of the Court, the Administrator shall keep a file that is composed of the following documents, each marked with its date and time of filing, and that is organized by order of filing:
23(1) Pour chaque instance devant la Cour, l’administrateur tient un dossier dans lequel sont classés, selon la date et l’heure du dépôt qu’ils portent, les documents suivants:
(a) every document filed under these Rules, an order of the Court or an Act of Parliament, other than affidavits or other material filed in support of a motion or as evidence at trial;
a) tous les documents déposés en application des présentes règles, d’une ordonnance de la Cour ou d’une loi fédérale, à l’exception des affidavits et autres documents et éléments matériels déposés à l’appui d’une requête ou à titre d’éléments de preuve à l’instruction;
(b) all correspondence between a party and the Registry;
b) toute la correspondance échangée entre une partie et le greffe;
(c) all orders;
c) toutes les ordonnances;
(d) copies of all writs issued in the proceeding; and
d) des copies de tous les brefs délivrés dans le cadre de l’instance;
(e) such other documents relating to the proceeding as the Court may direct.
e) tout autre document relatif à l’instance que la Cour ordonne de conserver.
Annexes
Annexe
(2) The Administrator shall keep an annex to each Court file that is comprised of
(2) L’administrateur tient une annexe à chaque dossier de la Cour dans laquelle sont versés les éléments suivants:
(a) all affidavits;
a) tous les affidavits;
(b) all exhibits; and
b) toutes les pièces;
(c) all other documents and material in the possession of the Court or the Registry that are not required by these rules to be kept in the Court file.
c) tous les autres documents et éléments matériels en la possession de la Cour ou du greffe dont les présentes règles n’exigent pas la conservation au dossier de la Cour.
. . .
. . .
Inspection of files
Examen de dossiers
26(1) If the necessary facilities are available, a person may, with supervision and without interfering with the business of the Court, inspect a Court file or annex that is available to the public.
26(1) Lorsque les installations de la Cour le permettent, toute personne peut, sous surveillance et d’une manière qui ne nuit pas aux travaux de la Cour, examiner les dossiers de la Cour et leurs annexes qui sont disponibles au public.
Removal or deletion of documents
Retrait ou suppression de documents
(2) Nothing shall be removed or deleted from a Court file or annex except
(2) Rien ne peut être retiré ou supprimé d’un dossier de la Cour ou de ses annexes sauf:
(a) under an order of the Court;
a) sur ordonnance de la Cour;
(b) by an officer of the Registry acting in the course of his or her duties; or
b) par un fonctionnaire du greffe dans l’exercice de ses fonctions;
(c) in accordance with rule 26.1.
c) en conformité avec la règle 26.1.
. . .
. . .
[Emphasis added.]
[Je souligne.]
[29] Documents filed under the rules and other documents referred to in section 23 of the FCR are kept in the Court file. All other documents and material in the possession of the Registry that are not required by these rules to be kept in the Court file, which include, as Mr. Rémillard conceded, documents transmitted to the Registry under section 318 of the FCR, are kept in the annex to the Court file.
[30] Mr. Rémillard is trying to make a distinction between the Court file and its annex, arguing that only what was in the Court file was subject to the principle of open and accessible court proceedings. I reject this position. Section 26 of the FCR is clear: the open court principle allows any person to consult a Court file or any annex “that is available to the public” (section 26 of the FCR; Harkat (Re), 2009 FC 167 at para 11 [Harkat]).
[31] Although the general rule states that documents in a Court file or in its annex are public, not all documents in the Court file or in the annex are necessarily “available to the public”. Where the material is required by law to be treated confidentially or where the Court orders that the material be treated confidentially, this material continues to be treated confidentially and is designated as such at the time of being filed with the Court, by identifying, as needed, the legislative provision or the Court order under which it is required to be treated as confidential (section 152(1) of the FCR). Otherwise, the FCR does not provide for a mechanism for recognizing the confidentiality of documents “in the possession of the Registry”.
[32] In particular with regard to information of a private nature, it is important to clarify that even if information is private, a party who institutes a legal proceeding waives his or her right to privacy, at least in part (Frenette v Metropolitan Life Insurance Co., [1992] 1 SCR 647 [Frenette]; Lac d’Amiante at para 42). This is true even with regard to tax information when a legal proceeding is introduced. Although taxpayers have a reasonable expectation of privacy when such information is provided to the Minister following a request for information under the ITA, when they are referred to the Court, “by operation of law [they become] available to the public at large” (Gernhart v Canada, [2000] 2 FC 292 at paras 2 and 33 (FCA) [Gernhart]).
[33] This means that, with the exception of a rule of law, a mechanism provided for by the FCR or, I would add, reasons for judicial policy (as in Lac d’Amiante), documents submitted to the Registry and kept in the Court file or in one of its annexes are subject to the open court principle and are accessible to the public.
[34] Mr. Rémillard submits that what is transmitted under section 318 of the FCR is not intended to become public, whether or not it is private information. It is then up to the party concerned to present in evidence, and therefore to make public, the documents that it wishes to submit to the Court. He submits that the documents exchanged, as long as they are not put into evidence, are not subject to the open court principle.
[35] Mr. Rémillard notes that under section 318 of the FCR, the tribunal must “transmit” rather than “file” the material with the Registry, and therefore “the material is not . . . part of the evidentiary record” (Canadian Copyright at para 18; Canada (Attorney General) v Lacey, 2008 FCA 2420 [Lacey]).
[36] It is clear that section 318 of the FCR refers to the “transmission” of documents to the Registry and not their “filing”. Relying on Lacey, Justice Stratas observed in Canadian Copyright that this means that “[t]he material is not formally before the reviewing court in the sense of being part of the evidentiary record” (Canadian Copyright at para 18).
[37] But it does not follow that these documents have not entered the public domain and are not part of the Court file. In Kirikos v Fowlie, 2016 FCA 80 [Kirikos], the Federal Court of Appeal observed as follows at paragraph 19:
What is meant by the “open court principle”? In a nutshell, it signifies that in Canada, unless otherwise stated, all court proceedings, including all material forming part of a court’s records, remain publicly available.
[Emphasis added]
[38] It is not because the documents are not part of the evidentiary record that they are not part of the Court file, and, I remind you, it is the documents in the Court file that are subject to the open court principle.
[39] In addition, as noted by the Federal Court of Appeal in Gernhart at paragraph 33 concerning a previous provision of the ITA comparable to subsection 241(3) of the ITA which provided for the “transmission” of a taxpayer’s file to the Tax Court of Canada in the event of a challenge to a Minister’s decision:
Subsection 176(1) of the Act is the pivotal enactment which eventually permits the world at large to obtain copies of a taxpayer’s return. All documents transmitted by the Minister to the Tax Court are potentially available to be inspected by the general public, whether or not they have been tendered into evidence by any of the parties to the action.
[Emphasis added]
[40] It should also be borne in mind that the Lacey decision was rendered prior to the amendment of sections 309 and 310 of the FCR, which resulted in the adoption of paragraphs 309(2)(e.1) and 310(2)(c.1) of the FCR. Prior to these amendments, certified tribunal records could only be included in the parties’ records if they were introduced by affidavit, filed and served in accordance with sections 306 and 307 of the FCR, and if “one of the . . . affidavits will identify the documentary exhibits, which include some or all of the documents comprising the tribunal record” (Canada (Attorney General) v Canadian North Inc, 2007 FCA 42 at paras 3 and 5).
[41] However, since the adoption of paragraphs 309(2)(e.1) and 310(2)(c.1) of the FCR, no affidavit is required. The documents contained in the certified record no longer need to be filed in evidence to appear in a party’s record; they “can simply be placed in the applicant’s record or the respondent’s record . . . [w]hen that is done, the material is in the evidentiary record before the reviewing court and may be used by the parties and the court” (Canadian Copyright at para 17).
[42] Mr. Rémillard cites Quebec Port Terminals Inc. v Canada (Canada Labour Relations Board) (FCA), [1993] FCJ No 421, 164 NR 60 [Quebec Port Terminals] for the proposition that documents forwarded to the Registry under former section 1613 of the FCR, the predecessor to section 318 of the FCR, were not automatically part of the Court file. However, upon reading paragraph 11 of that decision, it is clear that when Judge Décary referred to the “record of the Court”, he meant the evidentiary record, that is, the parties’ records that are filed in accordance with sections 309 and 310 of the FCR as they now read. He was not referring to the Court file as provided for in sections 23 and 26 of the FCR. In any event, the documents relevant to the Quebec Port Terminals case had been created after the administrative decision in question was rendered.
[43] Furthermore, as with Lacey, Quebec Port Terminals was rendered before paragraphs 309(2)(e.1) and 310(2)(c.1) of the FCR were adopted.
[44] According to Mr. Rémillard, the argument that the certified record becomes public as soon as it is added to the Court file is absurd for three reasons:
Documents that are not before the judge as evidence could, nevertheless, be consulted by the public.
I see no problem here. Although the Court decides solely on the basis of the record before it (Gernhart at para 48; Quebec Port Terminals at para 11), the Court file is also, albeit in another way, before the Court. Indeed, the Court might very well consult the Court file for reasons other than to support its decision. This is indeed one of the reasons why the open court principle extends to everything in the Court file, with the exception, of course, of the confidential elements contained in that file.
In cases where two applicants submit identical applications for review based on similar submissions against decisions rendered by the same administrative decision-maker, and where one of the applicants already has their complete record in hand but the other does not, the person who makes their request under section 317 of the FCR to obtain their record would be placed in an unfair position with respect to the applicant who already has their complete record, in the sense that they would be subject to the obligation to make their complete record public.
For my part, I do not see any injustice in such a case, which, I must emphasize, seems very hypothetical to me.
Two persons affected by the same decision by the same administrative decision-maker could make applications for review based on different submissions, where one person may be required to resort to converting their application into an action under subsection 18.4(2) of the Federal Courts Act [Act], while the other may not see the need to do so and may simply file application request under section 317 of the FCR.
For my part, again, I do not see a problem in this hypothetical case. The parties may choose the appropriate remedy in light of the questions they raise in their applications. The result is no injustice or absurdity.
[45] In the end, and as I have already pointed out, subject to a specific rule of law, a mechanism provided for under the FCR or reasons for judicial policy, documents submitted to the Registry in accordance with the procedure set out in sections 317 and 318 of the FCR and kept in the Court file are subject to the open court principle and remain publicly available (Kirikos at para 19).
[46] It is not disputed that there is no mechanism under the FCR that makes the Information confidential. With the exception of the Interim Order, no prior order was made in this case concerning the confidentiality of the Information under section 151 of the FCR.
[47] I now come to the three reasons raised by Mr. Rémillard that would justify keeping the Information confidential even though the FCR themselves make it public.
a) Implied undertaking of confidentiality
[48] The principle of an implied undertaking of confidentiality is a case-law concept that arises from judicial policy reasons (Juman v Doucette, 2008 SCC 8 at para 23 [Juman]; Lac d’Amiante at para 73).
[49] Mr. Rémillard submits that the Information and, in substance, all documents transmitted to the Registry by a tribunal under section 318 of the FCR are subject to an implied undertaking of confidentiality, a concept enshrined in Juman and Lac d’Amiante.
[50] In support of this argument, Mr. Rémillard notes that the judicial review procedure is of a summary nature and that it does not allow examinations for discovery contrary to an action. He submits that the procedure set out in sections 317 and 318 of the FCR compensates for the absence of such an exploratory examination by enshrining the right of the person seeking judicial review to seek discovery of certain documents.
[51] According to Mr. Rémillard, extending the rule of implied confidentiality to the documents transmitted to the Registry under section 318 of the FCR would not constitute an infringement of the open court principle since the documents (or at least part of them) would become public in any event upon their filing in evidence, i.e., once they are included in a party’s record under sections 309 and 310 of the FCR, and the Court is only supposed to consider the evidentiary record to render its decision.
[52] As for the Minister, he submits that, under the terms of the FCR, certified records are public and, as such, part of the judicial proceedings, that the procedure provided for in sections 317 and 318 of the FCR does not provide for a discovery process, and that confidentiality is normally required by the party obliged to transmit documents.
[53] I cannot accept the arguments put forth by Mr. Rémillard
[54] First of all, I would note that the implied undertaking of confidentiality is a rule that aims to prevent the use of information collected during discovery for purposes other than for preparing for the trial, in order to limit invasions of privacy whenever judicial proceedings are initiated. And as stated by the Supreme Court in Lac d’Amiante at paragraph 42:
Even if files or information are confidential or private, a party who institutes a legal proceeding waives his or her right to privacy, at least in part . . . . When legal proceedings are instituted, they necessarily set in motion the process for verifying allegations and information presented unilaterally by one party. The rule of confidentiality, however, seeks to limit the invasion of privacy at the examination on discovery stage by restricting the scope of the examination to what is necessary for the conduct of the proceeding. The rule acknowledges that if the information is relevant and is not protected by some other privilege, it must be communicated to the adverse party. However, the rule prohibits that party from using it for purposes other than preparing for the trial and defending his or her interests at trial, or from disclosing it to third parties, without specific leave from the court.
[55] I note from Mr. Rémillard’s arguments that certain similarities can be drawn between the procedure under sections 317 and 318 FCR and examinations for discovery. In particular, these two procedures are aimed at the discovery of documents. Indeed, “[t]he root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery” (Juman at para 20). Also, the transmission of documents under section 318 of the FCR may be considered as a method of discovery (Access Information Agency Inc. v Canada (Attorney General), 2007 FCA 224 [Access Information] at para 21); Athletes 4 Athletes Foundation v Canada (National Revenue), 2020 FCA 41 at para 17).
[56] However, it does not follow that all the logic and the basis of the principle of an implied undertaking of confidentiality in the context of an examination for discovery established by Lac d’Amiante and Juman are valid with respect to the transmission of documents under section 318 of the FCR. To put it succinctly, I cannot accept the argument that section 318 of the FCR is to judicial review what examination for discovery is to actions. We will now look at the many differences between the two procedures.
(i) Exploratory nature of examinations for discovery
[57] The procedure provided for in sections 317 and 318 of the FCR does not involve any discovery processes equivalent to an examination for discovery, which is exploratory in nature. An examination for discovery is a procedure for the verification and examination of allegations and information submitted unilaterally by a party allowing for “freedom to investigate”, oriented toward “a far-reaching and liberal exploration that allows the parties to obtain as complete a picture of the case as possible” in exchange for which “an implied obligation of confidentiality has emerged in the case law, even in cases where the communication is not the subject of a specific privilege” (Lac d’Amiante at paras 42 and 60). However, there is no exploratory investigation as part of the disclosure process under section 317 of the FCR. For example, this text cannot be usefully invoked to obtain documents not available to the administrative decision-maker at the time of its decision (Tsleil‑Waututh Nation v Canada (Attorney General), 2017 FCA 128 at para 112).
[58] Contrary to examinations for discovery, “[w]hen dealing with a judicial review, it is not a matter of requesting the disclosure of any document which could be relevant in the hopes of later establishing relevance” (Access Information, para 21).
[59] Moreover, for the party conducting the examination for discovery to truly “explore”, the other party must necessarily cooperate fully in the investigation. This obligation of cooperation is, moreover, another of the foundations of the implied undertaking of confidentiality which we do not find in the procedure set out in sections 317 and 318 of the FCR. A tribunal to which these sections apply has no interest in hiding the information, as opposed to a party in a civil dispute, for example. And as stated by the Supreme Court in Lac d’Amiante at paragraph 26:
[26] There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude (“litigation by avalanche”) as often to preclude careful pre-screening by the individuals or corporations making production.
[60] Moreover, the Minister has argued—rightly, in my view—that it is generally the party who is obliged to submit information that requires that information to remain confidential in the course of examinations for discovery. The situation is vastly different from the case at hand, where it is rather the party requesting the information (and even requesting it to be transmitted to the Registry) that is also requesting confidentiality.
[61] I am not saying a party can only request that information be treated as confidential when it is that party who is obliged to disclose that information, as it is obvious that the party will always be able to request this confidentiality under section 151 of the FCR (Bah v Canada (Citizenship and Immigration), 2014 FC 693 (CanLII) at para 13 [Bah]). I am simply saying that the need for the other party’s cooperation in conducting an examination for discovery is another judicial policy reason justifying the implied undertaking of confidentiality in examinations for discovery that has not been transposed into the procedure prescribed by sections 317 and 318 of the FCR.
[62] Thus, the exploratory nature of examinations for discovery and the objective of promoting free and complete exchanges of information made it necessary to develop the implied undertaking of confidentiality.
[63] The procedure provided for in sections 317 and 318 of the FCR is not exploratory in nature but rather procedural in nature; it is simply a matter of submitting to the reviewing court, and to the request