Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities)

Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities)
Court (s) Database
Federal Court Decisions
Date
2006-06-09
Neutral citation
2006 FC 720
File numbers
T-2086-05
Notes
Digest
Decision Content
Date: 20060609
Docket: T-2086-05; T-2118-05; T-2121-05
Citation: 2006 FC 720
OTTAWA, Ontario, June 9, 2006
PRESENT : The Honourable Mr. Justice Teitelbaum
BETWEEN :
T-2086-05
THE HONOURABLE ALFONSO GAGLIANO
Applicant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM
AND ADVERTISING ACTIVITIES
THE ATTORNEY GENERAL OF CANADA
Respondents
AND BETWEEN :
THE RIGHT HONOURABLE JEAN CHRÉTIEN
Applicant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
THE ATTORNEY GENERAL OF CANADA
Respondents
AND BETWEEN :
MR JEAN PELLETIER
Applicant
and
THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
I. Background
[1] The applicants, the Right Honourable Jean Chrétien (Chrétien), the Honourable Alfonso Gagliano (Gagliano), and Mr. Jean Pelletier (Pelletier) separately applied for judicial review to quash the Phase I Report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Commission). Each applicant has requested various materials from the Commission under Rule 317 of the Federal Courts Rules. The Commission transmitted copies of certain materials that were in its possession and to which it did not object to providing to the parties. However, the Commission objected to the production of certain other materials requested by each applicant. In its view these other requested materials were not relevant, and it informed the parties in writing of the reasons for its objection as required under Rule 318(2). Chrétien, Gagliano and Pelletier presently bring separate motions under Rule 318 of the Federal Courts Rules for Orders that the Commission provide certified copies of the material they requested that the Commission has not transmitted to them and that the Commission has in its possession.
[2] The applicants filed their motions separately, but on the parties' request, the Court heard their motions together. As the applicants' motions raise substantially similar issues, the Court presently provides one set of reasons that apply equally to all three motions.
II. The Legislative Framework
[3] The applicable Rules related to materials in the possession of a tribunal read as follows:
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.
(2) An applicant may include a request under subsection (1) in its notice of application.
(3) If an applicant does not include a request under subsection (1) in its notice of application, the applicant shall serve the request on the other parties.
318 (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
(a) a certified copy of the requested material to the Registry and to the party making the request; or
(b) where the material cannot be reproduced, the original material to the Registry.
(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.
(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).
(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.
317.(1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral dont l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.
(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.
(3) Si le demandeur n'inclut pas sa demande de transmission de documents dans son avis de demande, il est tenu de signifier cette demande aux autres parties.
318 (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l'office fédéral transmet :
a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;
b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
(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) 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) 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.
III. Jean Chrétien's Submissions
[4] Jean Chrétien seeks an Order that the Commission provide a certified copy of the following materials:
a. All documents presented to the Commission at the Roundtables in Moncton, Québec, Toronto, Edmonton, and Vancouver;
b. A summary of the discussions held during the Commission's Roundtables in Moncton, Québec, Toronto, Edmonton, and Vancouver;
c. A copy of the emails to the Commissioner from the public that referred to Mr. Chrétien, Mr. Jean Pelletier or to the Prime Minister's Office, received between September 7, 2004 and October 31, 2005;
d. A copy of the emails in response to the Commissioner's request to Canadians on August 25, 2005; and
e. A copy of the submissions received from the public that referred to the role of Mr. Chrétien, Mr. Jean Pelletier or the Prime Minister's Office in the Sponsorship Program.
Jean Chrétien's Written Representations at para. 2.
Chrétien submits that the documents requested pursuant to Rule 317 are relevant, and should therefore be provided.
[5] The Commission's tasks were divided into two separate but related Phases, and the applicant is only challenging the first, fact-finding Phase. However, he has requested materials from both Phase I and Phase II of the Commission's mandate, the latter Phase being the recommendations stage of the Commission. The e-mails received between September 7, 2004 and October 31, 2005 are materials that would have been received during Phase I. However, the materials related to the public's later e-mails and submissions, as well as all materials regarding the Commission's roundtable consultations are all materials from Phase II.
[6] Chrétien submits that if a document may affect the decision that the Court will make on an application, then it is relevant to the application for judicial review, and must be produced by the Commission. It is argued that the leading case of Canada(Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 ["Pathak"]establishes that the relevance of documents requested must be determined in relation to the grounds of review provided in the originating notice of motion and the supporting affidavit.
[7] The applicant recognizes that there is a general rule that only material which was before a tribunal is producible. As I note below, the respondents claim that the applicant is not entitled to several requested materials on the basis that the materials were not before the Commissioner when he wrote his Phase I Report. However, the applicant claims that there are several exceptions to the general rule. He contends that where a judicial review alleges lack of procedural fairness and the consideration of irrelevant matters, or the failure to consider relevant matters, an applicant is entitled to material that may have affected the decision of the administrative decision-maker: Deh Cho First Nations v. Canada(Minister of the Environment), [2005] F.C.J. No. 474 [Deh Cho First Nations]; Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No. 557 (T.D.) [Friends of the West]; Telus Communications Inc. v. Canada(Attorney General), [2004] F.C.J. No. 1587 (C.A.) [Telus]. Chrétien claims that he is entitled to the requested material because his application for judicial review is based in part on an argument that the Commission breached procedural fairness, and that the requested materials are relevant to this claim.
[8] The applicant maintains that the materials from Phase II are relevant since there is evidence to support the claim that the Commissioner received submissions related to the Phase I fact-finding mandate during Phase II. He notes that there is an overlap in the timing of Phase I and Phase II, and that materials received during Phase II would have been before the Commissioner as he wrote the Phase I Report.
[9] Chrétien submits that the Commissioner may have been influenced by the materials received for Phase II in writing Phase I. He argues that he should have been provided with an opportunity to respond to the materials received by the Commission for Phase II that may have been before him during Phase I. He highlights that he was not a party to the private roundtable consultations held by the Commissioner, and that e-mails received by the Commissioner in response to the Commission's call for public input were not disclosed to him.
[10] The applicant also claims that parts of the Phase II materials made their way into the Phase I Report.
[11] Chrétien presents evidence in support of his claim that the requested Phase II materials are relevant to the judicial review of the Commission's Phase I Report. He claims that the Commission received secret advice from Professor Donald Savoie, who was named special advisor to the Commissioner for the recommendations phase, (Phase II,) of the Commission's mandate. It is argued that the Commission may have received additional advice from other academics, and policy analysts during the private roundtable sessions. Chrétien complains that he was not provided with an opportunity to respond to any allegations by Professor Savoie or by participants in the roundtables. He also claims that Savoie's view that power had become concentrated in the Prime Minister's Office was reflected in the Phase I Report, and since there was no evidence supporting such a finding during the Phase I hearings, the submissions made in Phase II must have made their way back into Phase I.
[12] The applicant similarly argues that he was not provided with a reasonable opportunity to respond to comments made by the public in response to the Commissioner's request on August 25, 2005 for public input, and that the public's views made their way back into Phase I. He claims that the Commissioner sought public input relating to his mandate, which the applicant claims was described by the Commission as addressing issues including:
The extent to which we can still identify individuals, whether at the political and administrative levels, who are responsible, answerable and accountable for the development and management of sponsorship initiatives or advertising activities or, more generally, of government programs.
"Invitation to Canadians - Consultation Paper Input" ["Invitation to Canadians"]
Chrétien submits that the above request amounted to an improper continuation of the Commission's fact-finding mandate during Phase II, and that the responses from the public must have influenced the Commissioner, since several factual findings made in Phase I cannot be supported on the basis of the Phase I public record.
[13] Chrétien also claims that e-mails received by the Commission during Phase I are relevant. It is argued that the Commissioner received e-mails from the public that expressed their support for the Commissioner. These e-mails were allegedly referred to by the Commission's Press Secretary, François Perreault. The applicant claims that these e-mails were received during Phase I, were before the decision-maker when he wrote Phase I, and support the applicant's claim that the Commissioner became preoccupied with media coverage, and that for all of these reasons they are relevant and should be transmitted to the parties.
IV. Alfonso Gagliano's Submissions
[14] Alfonso Gagliano seeks an Order that the Commission provide the following materials:
a. Une copie de tout document afférant au mandat de M. François Perreault; à toute instruction qu'il aurait reçue relativement aux activités et audiences de la Commission d'enquête sur le programme de commandites et les activités publicitaires (Commission); aux entrevues accordées aux médias par le Commissaire les 16 et 17 décembre 2004;
b. Tous les documents remis à la Commission aux tables rondes de la Commission à Moncton, Québec, Toronto, Edmonton et Vancouver;
c. Une copie des courriels du public adressés à la Commission qui faisaient référence à l'honorable Alfonso Gagliano, reçus entre le 7 septembre 2004 et le 21 octobre 2005 inclusivement;
d. Une copie des soummissions [sic] du public en référence au rôle de l'honorable Alfonso Gagliano ou d'autres ministres dans les activités de commandites;
e. La liste des sujets qui devaient être traités lors des consultations publiques qui a été retirée du site internet de la Commission
Alfonso Gagliano's Motion Record at 31 [emphasis removed].
[15] Gagliano adopts Chrétien's submissions and the submissions of Jean Pelletier. He also maintains that the materials from Phase II and the requested e-mails are relevant as they will assist him in determining whether the Commission's counsel, who are allegedly the alter-ego of the Commissioner, received materials regarding the applicant that were not offered into evidence. The applicant also claims that the public consultations had the result of continuing to hold him to public opprobrium. He claims that they created a more visible opportunity at which it could be said that he was responsible for the situation.
[16] It is Gagliano's submission that the materials related to the Commissioner's interviews to the media are relevant since the Commissioner made statements that lead to a reasonable apprehension that the Commissioner had reached his conclusions before all of the evidence had been adduced.
[17] The materials related to François Perreault are said to be relevant because Perreault wrote a book entitled Inside Gomery, and the preface to the book was written by Gomery. The book claims to reveal the inside workings of the Commission. The materials are also said to be relevant because Perreault allegedly told the press that Canadians are supporting Gomery. Gagliano claims that it is important to learn about the exact mandate that was conferred on the Commission's Press Secretary, that the materials support the applicant's claims that the Commissioner's conduct raises a reasonable apprehension of bias, and that the Commission breached his procedural rights.
V. Jean Pelletier's Submissions
[18] Jean Pelletier presently seeks an Order that the Commission provide the following materials:
a) Une copie de tout courriel ou autre correspondance reçu et/ou sollicité par la Commission relative ou rôle du cabinet du Premier ministre et de son Chef de cabinet;
b) Une copie de tout document afférent au rapport ou tout commentaire que monsieur François Perreault, porte-parole de la Commission, fit au commissaire relativement au rôle du cabinet du Premier ministre ou de son Chef de cabinet; au mandat de monsieur Perreault; à toute instruction qu'il aurait reçue relativement aux activités et audiences de la Commission; aux entrevues accordées aux médias par le Commissaire les 16 et 17 décembre 2004; les transcriptions et preuves documentaires afférentes à la présente demande;
Jean Pelletier's Written Representations, at para. 19.
[19] Pelletier adopts the submissions of the other applicants. He accepts that Pathak, above, establishes when documents are considered relevant for the purposes of Rule 317. He also provides jurisprudence demonstrating that requested documents may be relevant, even if they were not necessarily before the Commission or considered by the Commissioner, when it is alleged that a Commission's report was biased and incomplete: Canadian Broadcasting Corp. v. Paul, 2001 FCA 93 at para. 65 [Paul]; Friends of the West, above; Lindo v. Royal Bank 162 F.T.R. 142, [1999] F.C.J. No. 85, at para. 14 [Lindo].
[20] Pelletier also submits that the Federal Court has recently affirmed in Cooke v. Canada (Correctional Services), [2005] F.C.J. No. 886, 2005 FC 712 at para. 23, the principle found in Pathak, above, that relevant material includes materials which may affect the decision that the Court may make.
[21] Pelletier submits that the Commissioner's mandate did not permit him to engage in public consultations except during Phase II of his report. He follows both Chrétien and Gagliano by referring to the comments allegedly made by François Perreault indicating that the Commissioner had received e-mails from the public before the Commissioner officially solicited e-mails from the public as part of his Phase II mandate. Pelletier argues that the comments by Perreault suggest that the Commissioner solicited and received communications regarding the role of the Prime Minister's Office before he completed Phase I of his Report. He then relies on extracts from Inside Gomery to support his belief that the Commissioner had considered the e-mails that he received.
[22] Pelletier alleges that these communications support his argument that the Commissioner's decision is tainted by a reasonable apprehension of bias. He claims that the requested materials are relevant, and that since he carefully tailored his request for the materials, he cannot be accused of being engaged in an improper fishing expedition.
[23] Turning to the materials related to François Perreault, Pelletier is of the view that they are relevant since it is important to the applicant to learn of the instructions received by Mr. Perreault, and to understand his role as Commission spokesperson. He asserts that Inside Gomery reveals that the Commissioner and Perreault worked together to heighten the visibility of the Commission. Pelletier's argument is that the Commission had a duty to act fairly and to avoid encouraging any publicity that would harm his reputation. The Commissioner and Press Secretary's active efforts to increase media coverage of the Commission allegedly raise issues of natural justice. Pelletier also claims that Mr. Perreault's responsibilities included managing the evidence, which raises issues of procedural fairness.
[24] Pelletier stresses that the heightened media profile of the Commission and the treatment of the evidence are both important issues, since they raise issues of natural justice and procedural fairness. He asserts that natural justice and procedural fairness are essential during Commissions to protect individuals whose reputations may be needlessly damaged when they testify before Commission: Canada (Procureur général) c. Canada(Commission d'enquête sur le système d'approvisionnement en sang au Canada), [1997] 3 R.S.C. 440; Morneault c. Canada (Procureur général), [2001] 1 C.F. 30. It is therefore submitted that the materials related to Mr. Perreault's work for the Commission are relevant.
VI. The Attorney General of Canada's Submissions
[25] The Attorney General of Canada (AGC) argues that the applicants are engaging in improper fishing expeditions under Rule 317. He explains that a request made under Rule 317 is different from discovery of documents in an action. A Rule 317 request must be focused, and the AGC notes that the Court has rejected overly broad requests which amount to attempts to effect discovery: Bradley-Sharpe v. Royal Bank of Canada, 2001 FCT 1130, at paras. 23-25; Atlantic Prudence Fund Corp. v. Canada (M.C.I), [2000] F.C.J. 1156, at para. 11; Paukuutit, Inuit Women's Assn. v. Canada, 2003 FCT 165 (Proth.) at para. 15.
[26] The AGC agrees that Pathak, above, makes it clear that relevance for the purpose of Rule 317 is determined by having regard to the notice of application, the grounds of review invoked by the applicant, and the nature of judicial review. He also maintains that normally an application for judicial review is conducted on the basis of material that was before the decision-maker at the time the decision was made, and that the Court therefore generally only orders the transmission of documents under Rule 317 that were before the decision maker at the time the decision was made: Pathak, above, at para. 23; Hiebert v. Canada (Correctional Service), [1999] F.C.J. No. 1957, affirmed by the Federal Court of Appeal: [2001] F.C.J. No. 297, application for leave to appeal to the Supreme Court of Canada Dismissed: [2001] S.C.C.A. No. 227.
[27] The Attorney General of Canada submits that the Commission's responses to the applicants' Rule 317 requests were appropriate for three reasons. First, each request is allegedly overly broad and amounts to a fishing expedition undertaken in an effort to find material to build the applicant's case. Second, the Commission's responses to the Rule 317 requests were allegedly appropriate since the material sought was not part of the evidence filed in the public record, and therefore was not considered by the Commission. Third, the AGC argues that the material requested by each applicant is not relevant to the grounds of the judicial review.
A. The requests were drafted in overly broad terms
[28] The AGC notes that Chrétien's request for "all documents" presented to the Commission at the roundtable appears inconsistent with the requirement that Chrétien had to make a focused request for materials.
[29] The AGC similarly claims that Gagliano's request for "all" documents related to certain themes is simply too broad a request. As noted above, Gagliano requests:
Une copie de tout document afférant au mandat de M. François Perreault; à toute instruction qu'il aurait reçue relativement aux activités...; Tous les documents remis à la Commission aux tables rondes de la Commission » [emphasis added].
The AGC maintains that Gagliano's request for all e-mails referring to him and for copies of submissions made with respect to him and to other ministers with respect to sponsorship activities are also too broad.
[30] The AGC makes similar arguments with respect to Pelletier's request for "all" e-mails, and "all" documents. As noted above, Pelletier requests:
Une copie de tout courriel ou autre correspondance reçu et/ou sollicité par la Commission relative ou rôle du cabinet du Premier ministre et de son Chef de cabinet; Une copie de tout document afférent au rapport ou tout commentaire que monsieur François Perreault, porte-parole de la Commission,... à touteinstruction qu'il aurait reçue relativement aux activités et audiences de la Commission [emphasis added].
[31] The AGC claims that the applicants' broad requests are impermissible as they fail to precisely identify the material being sought, and amount to impermissible "attempts to scour for any information within the file or files of the Commission because she is dissatisfied or displeased with the decision of the Commission": Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia - Letourneau Commission) (1997), 130 F.T.R. 183, at para. 8; Bradley Sharpe v. Royal Bank of Canada, [2001] F.C.J. No. 1561, 2001 FCT 1130, at para. 24.
B. The material is irrelevant since it was not in the public record and not considered by the Commissioner
[32] The AGC highlights that the Commissioner stated that he only considered evidence in the public record in writing his Phase I Report:
A vast quantity of documentary evidence was put into evidence and forms part of the record of the Commission. A list of the exhibits, many of which are books of documents, is attached as Appendix F. As Commissioner, I have systematically avoided taking cognizance of any document or evidence which has not been produced into the record at the public hearings, although I am conscious that Commission counsel have had access to many documents that I have not seen and have had meetings and discussions with witnesses and other persons on matters that are not part of the evidence that I have heard. Commission counsel have respected my expressed wishes that any information acquired in this fashion would not be communicated to me. This Report has been written solely on the basis of the evidence in the public record.
Chapter I: Introduction, Phase I Report, at 5.
[33] The AGC maintains that there is no evidence that casts doubt on the above statement. It is therefore submitted that the Commission correctly rejected the requests from the parties for materials that were not on the public record on the basis that the Commissioner did not take the requested material into account. The AGC claims that the Commissioner's declaration that he did not consider evidence not contained in the public record enjoys a strong presumption of truth: Stevens v. Conservative Party of Canada, [2004] F.C.J. No. 451, 2004 FC 396, at paras. 15-22.
C. The material is not relevant to the grounds of the judicial review
[34] The AGC also claims that the relevancy of the requested materials must be considered against the grounds of review alleged by the applicants, and that such an analysis reveals that the requested materials are not relevant in any of the applications.
[35] The AGC claims that the material requested by the applicants is not relevant to any of the three main grounds of review alleged by each party. The applicants each allege that the Commission erred in findings of fact. The AGC submits that this argument must be based on the evidence on record, and that the requested material is irrelevant on this point. Each applicant alleges that his right to procedural fairness was breached during Phase I of the Commission. The AGC argues that the requested materials will not assist the applicantsin making this argument, and that it can be made by referring exclusively to materials available from the public record. Finally, the applicants each raise the argument that a reasonable apprehension of bias existed on the part of the Commissioner. While the applicants may wish to examine the requested materials in order to then argue that they influenced the Commissioner's fact finding report, the AGC maintains his earlier argument that there is no reason to doubt the Commissioner's statement that he only relied on materials found in the public record to reach his decision.
VII. The Commission's Submissions
[36] The Commission maintains that it was justified to object to the applicants' request for materials. The Commission categorizes the purpose of Rule 317 as preventing the parties from engaging in a fishing expedition for information. It asserts in the same manner as the AGC had, that the production of documents in a judicial review application is more restricted than in the context of an action, and claims that it is not under a duty to prepare new documents: Quebec Ports Terminals Inc. v. Canada (Labour Relations Board), 1993 CarswellNat 815 (F.C.A.), at paras. 8-10.
[37] The Commission submits that, in general, the only documents available to the applicants are those which were available to the decision-maker at the time of rendering his decision. The Commission relies on several cases in support of this proposition: S.C.F.P. Local 301 c. Québec (Conseil des services essentials), 1997 CarswellQue 82 (C.S.C.) paragr. 75; Farhadi v. Canada (M.C.I.), [1998] 3 F.C. 315, [1998 F.C.J. 381, (conclusion not raised on appeal at [2000] F.C.A. No. 646); Ominayak v. Lubicon Lake Indian Nation Election (Returning Officer), [2000] F.C.J. No. 2056; Nametco Holdings Ltd. v. Canada (M.N.R.), [2002] F.C.J. No. 592, 2002 FCA 149; Hoeschst Marion Roussel Canada v. Canada (Attorney General), [2004] F.C.J. No. 633, 2004 FC 489.
[38] The Commission's counsel argues that the Commissioner clearly indicated that he only relied on the evidence in the public record in writing the Phase I Report, and that the Commissioner made it clear that at all times he considered the two phases of his mandate to be distinct. The Commissioner referred to the two Phases in his Opening Statement of the Phase I Report as being "two separate, but related, functions": Appendix C: Opening Statement, Phase I Report, at 531.
[39] The Commission cites Pathak, above, and Stevens, above, in support of its reiteration of the argument presented by the AGC that the statement by the Commissioner claiming that he only considered materials on the public record benefits from a strong presumption of truth. The argument is further developed when the Commission claims that although Commissioner Gomery was not acting as a court judge during the Commission, he had the intellectual ability and training of a judge and was therefore able to determine relevancy of evidence and not take discarded elements into account. The Commission relies on the Supreme Court's decision of Société d'énergie Foster Wheeler ltéé v. Société intermunicipale de gestion & d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456, [2004] S.C.J. No. 18, 2004 SCC 18, at paras. 46 at 47 :
46. The City was unhappy with this part of the Court of Appeal's decision, as the City still wished to prohibit the production of documents it claimed to be covered by professional secrecy. The City opposed even allowing the trial court to examine these documents.
47. The City's attitude is without doubt motivated by a cautious strategy which seeks to avoid allowing the trial judge to be influenced by the content of documents the City alleges are inadmissible. These concerns, while common, are unjustified. We must remember that every day judges must rule on the admissibility of evidence that they must inspect or hear before excluding, and that this duty is an indispensable part of their role in the conduct of civil or criminal trials. Judges understand that they must disregard any evidence that they deem inadmissible and base their judgments solely on the evidence entered into the court record.
[40] Applying the above principles to the present requests for materials, the Commission submits that the documents requested by the applicants are not part of the public record, were not considered by the Commissioner, and therefore are not relevant.
A. E-mails Received During Phase I
[41] The Commission submits that there is nothing in the applicants' allegations supporting their claims that the Commission "solicited" e-mails other than in the context of Phase II of the inquiry. It also argues that even if it did receive e-mails from the public during Phase I, they were not considered by the Commissioner, and their existence does not in itself create bias. It is maintained that the applicants' requests for these e-mails were properly refused since these documents had no effect on the evidence filed, and they relate to matters that took place outside the scope of the Commission.
B. Information Related to FrançoisPerreault
[42] The Commission argues that the documents related to Perreault and his book Inside Gomery had no effect on the evidence filed, and relate to matters that took place outside the scope of the Commission. The Commission submits that the materials requested relating to Perreault have nothing to do with the preparation of the Phase I Report. It claims that the media coverage of the Commission, the role played by Perreault, and the instructions that he may have received from the Commissioner did not deprive the applicants' of their ability to dispute certain evidence before the Commission or to make submissions as to their relevancy.
[43] The Commission claims that the applicants cannot invoke procedural fairness solely as a means of attempting to have access to documents that otherwise would not be made available to them.
C. Phase II Materials
[44] The e-mails and submissions received in response to the Commissioner's roundtable sessions were part of Phase II of the Commission's mandate, and it is alleged that they were not connected to Phase I. It is submitted that these materials were not considered by the Commissioner in writing his Phase I Report, and copies of these materials were therefore properly denied to the applicants.
[45] The Commission claims that the Phase II consultations were part of a separate process that was designed to assess whether the system in place "allows for the determination of who is answerable for a given action or decision".
Commission's Memorandum of Fact and Law (Chrétien, T-2118-05) at para. 44.
[46] The Commission maintains that the applicant will either succeed or fail in demonstrating that the Commissioner could not have made his comment related to the concentration of power in the Prime Minister's Office ("PMO") based on the evidence submitted during Phase I of the Commission's mandate. It claims that the analysis does not need to consider materials from the Phase II roundtables or the previous writings of Professor Savoie. The Commission argues that since the Commissioner's reference to power in the PMO was the only grounds upon which Chrétien justified his request to have access to materials relating to the roundtables and the public submissions, he has failed to demonstrate that the Court should depart from the general rule that only documents that were before the Commissioner when he wrote his report must be produced.
[47] The Commission claims that the applicants' allegations that the Commissioner made erroneous findings of fact, and that their procedural rights were breached can be determined by reference solely to evidence in the pubic file. It is also argued that although the applicants allege bias on the part of the Commission, they fail to demonstrate a real and identifiable bias.
VIII. Analysis
[48] The starting point in determining whether copies of the requested materials should be provided is Pathak, above. It has been described as a "leading case in the interpretation of Rule 317": Ecology Action Centre Society v. Canada (Attorney General), [2001] F.C.J. No. 1588, 2001 FCT 1164, at para. 6; See Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc., 35 C.E.L.R. (N.S.) 1, 183 F.T.R. 267, [2000] F.C.J. No. 910, at para. 30.
[49] According to Pathak, above, and subsequent jurisprudence, documents are relevant for the purposes of Rule 317 if they may affect the decision that the reviewing court will make. The relevance of requested materials is determined by having regard to the notice of application, the grounds of review invoked by the applicant, and the nature of judicial review.
[50] It is trite law that in general only materials that were available to the decision-maker at the time of rendering a decision are considered relevant for the purposes of Rule 317. However, the jurisprudence also carves out exceptions to this rule. The Commission's own written representations indicate that, "An exception exists where it is alleged that the federal board breached procedural fairness or committed jurisdictional error": David Sgayias et al., Federal Practice, (Toronto: Thomson, 2005) at 695, reproduced in the Commission's Memorandum of Fact and Law (Chrétien, T-2118-05) at para. 24. The above comment is clearly supported by jurisprudence which indicates that materials beyond those before the decision-maker may be considered relevant where it is alleged that the decision-maker breached procedural fairness, or where there is an allegation of a reasonable apprehension of bias on the part of the decision-maker: Deh Cho First Nations, above; Friends of the West, above; Telus, above; Lindo, above.
[51] The applicants raise grounds of review that fall within the exceptions that permit the transmission of materials beyond those that were before the decision-maker. However, the Court is not required to provide the applicants with the requested materials merely because they raise issues of procedural fairness. Rule 318(3) states that a Court "may" order that "all or part of the material requested be forwarded to the Registry" [emphasis added]. The wording is permissive, but leaves the Court with full discretion over whether or not to order the transmission of requested materials.
[52] It is the Court's view that when a party alleges a breach of procedural fairness, the Court still determines relevancy of the requested materials by reference to the applicant's notice of application, the grounds of review invoked by the applicant, and the nature of judicial review as directed by Pathak, above.
A. List of subjects posted on the Internet
[53] Gagliano seeks transmission of a copy of a list of subjects that were to be examined by the Commission during its consultations. The requested list was allegedly posted on the Commission's website but was later removed from the site. The Court has not received an adequate explanation as to how this material could be relevant. Gagliano wishes to view the materials that were formerly posted online to determine whether they provide further grounds for his allegations of reasonable apprehension of bias on the part of the Commissioner and breaches of procedural fairness. However, under Rule 317 of the Federal Courts Rules, relevancy must be established by the applicant to demonstrate that he is entitled to them. Documents requested under Rule 317 are not transmitted first so that a party may then determine whether they are relevant. The Rule has been crafted in this fashion to avoid rewarding applicants for engaging in improper fishing expeditions.
[54] The applicant has requested these particular materials without providing any evidence whatsoever as to their relevancy. The assertion that the web materials may be relevant is pure speculation. Since the Court has not received an adequate explanation as to the relevancy of materials that were posted and later removed from the Commission's website, the Court is not prepared to order that the Commission transmit them to Gagliano.
B. Materials from Phase II
[55] The applicants seek a variety of materials from Phase II of the Commission, including documents presented at the Commission's roundtables, a summary of discussions held during the roundtables, and copies of e-mails in response to the Commissioner's Invitation to Canadians. The applicants note that the Phase II consultations began before the Commissioner had completed Phase I of his report. The complaint is that the Commissioner may have heard matters in private hearings in Phase II that addressed issues that were within the sole purview of Phase I of the Commission. They are concerned that elements from the Phase II consultations may have influenced the Commissioner and may have made their way back into the Phase I decision. The applicants argue that materials found in Phase II are relevant since they will support the claim that Phase I findings were made without regard to the evidence. It is also argued that the Commissioner sought information during Phase II that fell entirely within the realm of Phase I, and that it was unfair for the Commissioner to have heard these arguments during Phase II without providing the applicants an opportunity to respond.
[56] The