Docket: A-316-15
Citation: 2015 FCA 263
Present: STRATAS
J.A.
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BETWEEN:
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ELIZABETH
BERNARD
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Applicant
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and
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CANADA REVENUE
AGENCY, TREASURY BOARD AND PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF
CANADA
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
The applicant filed an affidavit in support of
her application for judicial review of a decision of the Public Service Labour
Relations and Employment Board. The respondent, the Professional Institute of
the Public Service of Canada, now moves for an order striking out certain
paragraphs and exhibits in the affidavit. The precise paragraphs and exhibits
will be identified at the conclusion of these reasons. Another respondent, the
Canada Revenue Agency, supports the Institute’s motion in a one-page
submission.
[2]
For the reasons set out below, I shall grant the
motion with costs to the Institute.
A.
Background
facts: the proceedings before the Board and this application for judicial
review
[3]
Before the Board, the applicant sought
reconsideration of an earlier Board decision dated February 21, 2008. She
alleged that a panel member in that case was biased. On June 29, 2015, the
Board dismissed the applicant’s request that it reconsider the 2008 decision.
[4]
The Board’s 2015 decision—not the Board’s 2008
decision—is the subject-matter of the application for judicial review now
before this Court.
B.
The
Institute’s objection to the applicant’s affidavit
[5]
As mentioned above, the Institute objects to
certain paragraphs and exhibits in the affidavit the applicant offers in
support of her application.
[6]
The Institute stresses that this is an
application for judicial review. It observes that, as a general rule, on an
application for judicial review this Court can consider only the evidence that
was before the administrative decision-maker when it made its decision. It says
that the impugned paragraphs and exhibits in the applicant’s affidavit were not
before the administrative decision-maker in this case, here the Public Service
Labour Relations and Employment Board. Thus, they must be struck.
C.
The
applicant’s response
[7]
In response to the Institute’s motion, the
applicant has filed an affidavit. On motions in writing, a party responding to
the motion must file an affidavit and a written representation. The applicant’s
affidavit is a mixture of facts and argument. It complies neither with the
Rules on motions in writing nor Rule 81(1). However, out of generosity to the
applicant, I have considered her affidavit as, essentially, a combined
affidavit and written representation.
[8]
The applicant submits that the paragraphs and
the exhibits are relevant to alleged bias on the part of one of the members of
the Board and an overall breach of natural justice. However, the alleged bias
and failure of natural justice relates to the 2008 decision, not the 2015
decision.
D.
Analysis
(1)
Should the
motion be heard at this time?
[9]
The first question is whether the Institute’s
motion to strike out the impugned paragraphs and exhibits should be decided now
or left for the hearing panel. Some issues are best decided by the panel
hearing the application, not by a motions judge dealing with issues on an
interlocutory basis.
[10]
Whether the Court
should provide an advance ruling on an evidentiary issue or, for that matter,
any other issue in an application for judicial review is a matter of discretion
to be exercised on the basis of recognized factors: Association
of Universities and Colleges of Canada v. Access Copyright, 2012 FCA 22, 428 N.R. 297 at paragraph 11; Collins
v. Canada, 2014 FCA 240, 466 N.R. 127 at paragraph 6.
[11]
One factor is whether the advance ruling would
allow the hearing to proceed in a more timely and orderly fashion: Collins,
above at paragraph 6, McConnell v. Canada (Canadian Human
Rights Commission), 2004 FC 817, aff’d 2005 FCA 389. Another factor is whether the result of the motion is relatively clear
cut or obvious: Collins at paragraph 6; Canadian
Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 8, 267 N.R. 135. If reasonable minds might differ on
the issue, the ruling should be left to the panel hearing the appeal: McKesson
Canada Corporation v. Canada, 2014 FCA 290, 267 N.R. 135 at paragraph 9; Gitxaala
Nation v. Canada, 2015 FCA 27 at paragraph 7.
[12]
In the
circumstances of this case, I shall decide the Institute’s motion. As will be
seen, the result of the motion is clear and obvious. Dealing with it now will
allow the hearing of the application to proceed in a more timely and orderly
way. Further, an earlier direction of this Court instructed the Institute to
raise this matter by way of interlocutory motion rather than raising it as a
preliminary issue at the outset of the hearing of the application.
(2)
The merits of
the motion
(a)
The principles governing the admission of
new evidence on an application for judicial review
[13]
The general rule is that evidence that could
have been placed before the administrative decision-maker, here the Board, is
not admissible before the reviewing court: Connolly v. Canada (Attorney
General), 2014 FCA 294, 466 N.R. 44 at paragraph 7; Access Copyright,
above.
[14]
There are exceptions to the general rule. These
shall be discussed shortly. However, the exceptions are best understood as
circumstances where the rationale behind the general rule is not offended.
Thus, it is essential to review the rationale behind the general rule and to
articulate it accurately, with precision.
[15]
The Institute, relying on an authority that
predates the above authorities by several years, suggests that the rationale
supporting the general rule is one of “judicial
efficiency,” namely the need for courts to be shielded from being
another forum for fact-finding when the administrative decision-maker is
available to fact-find: Abbott Laboratories Limited v. Canada (Attorney
General), 2008 FCA 354, [2009] 3 F.C.R. 547 at paragraph 37.
[16]
In fact, as explained in the later authorities,
the general rule exists not just for efficiency. It rests upon something more
fundamental.
[17]
Applications for judicial review are proceedings
where a reviewing court is invited to overturn decisions Parliament has
entrusted to an administrative decision-maker. In this context, the
administrative decision-maker and the reviewing court have differing roles that
must not be confused:
In determining the admissibility of the…affidavit, the differing roles
played by this Court and the [administrative decision-maker] must be kept front
of mind. Parliament gave the [administrative decision-maker] – not this Court –
the jurisdiction to determine certain matters on the merits, such as whether to
make an interim tariff, what its content should be, and any permissible terms
associated with it. As part of that task, it is for [the administrative
decision-maker] – not this Court – to make findings of fact, ascertain the
applicable law, consider whether there are any issues of policy that should be
brought to bear on the matter, apply the law and policy to the facts it has
found, make conclusions and, where relevant, consider the issue of remedy. In
this case, the [administrative decision-maker] has already discharged its role,
deciding on the merits to make an interim tariff and to refuse to amend it.
Now before the Court is an application for judicial review from this
decision on the merits. In such proceedings, this Court has only limited powers
under the Federal Courts Act to review the [administrative
decision-maker’s] decision. This Court can only review the overall legality of
what the [administrative decision-maker] has done, not delve into or re-decide
the merits of what the [administrative decision-maker] has done.
Because of this demarcation of roles between this Court and the
[administrative decision-maker], this Court cannot allow itself to become a
forum for fact-finding on the merits of the matter. Accordingly, as a general
rule, the evidentiary record before this Court on judicial review is restricted
to the evidentiary record that was before the [administrative decision-maker].
In other words, evidence that was not before the [administrative
decision-maker] and that goes to the merits of the matter before the Board is
not admissible in an application for judicial review in this Court. As was said
by this Court in Gitxsan
Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.),
“[t]he essential purpose of judicial review is the review of decisions, not the
determination, by trial de
novo, of questions
that were not adequately canvassed in evidence at the tribunal or trial court.”
See also Kallies v.
Canada, 2001 FCA 376
at paragraph 3; Bekker
v. Canada, 2004 FCA
186 at paragraph 11.
(Access Copyright, above at
paragraphs 17-19, adopted in Connolly, above at paragraph 7; see also Delios
v. Canada (Attorney General), 2015 FCA 117 at paragraphs 41-42.)
[18]
This rationale—the need to recognize the
differing roles of administrative decision-makers and reviewing courts—is
rooted in larger values that continually manifest themselves in the
administrative law cases. These values—the rule of law, good administration,
democracy and the separation of powers—animate all of
administrative law. See generally Paul Daly, “Administrative
Law: A Values-Based Approach” in John Bell, Mark Elliott, Jason Varuhas
and Philip Murray eds., Public Law Adjudication in Common Law Systems:
Process and Substance (Hart, Oxford, 2015).
[19]
As mentioned above, the authorities show that
the general rule admits of certain exceptions. There are three recognized
exceptions and the list of exceptions is not closed. The exceptions are recognized
because they are consistent with the rationale behind the general rule and
administrative law values more generally.
[20]
The first recognized exception is the background
information exception. Sometimes on judicial review parties will file an
affidavit that contains summaries and background aimed at assisting the
reviewing court in understanding the record before it. For example, where there
is a large record consisting of many thousands of documents, it is permissible
for a party to file an affidavit identifying, summarizing and highlighting,
without argumentation, the documents that are key to the reviewing court’s
understanding of the record.
[21]
In Delios, above, I put it this way (at
paragraph 45):
The “general
background” exception applies to non-argumentative orienting statements that
assist the reviewing court in understanding the history and nature of the case
that was before the administrative decision-maker. In judicial reviews of
complex administrative decisions where there is procedural and factual
complexity and a record comprised of hundreds or thousands of documents,
reviewing courts find it useful to receive an affidavit that briefly reviews in
a neutral and uncontroversial way the procedures that took place below and the
categories of evidence that the parties placed before the administrator. As
long as the affidavit does not engage in spin or advocacy – that is the role of
the memorandum of fact and law – it is admissible as an exception to the
general rule.
[22]
But “[c]are must be
taken to ensure that the affidavit does not go further and provide [fresh]
evidence relevant to the merits of the matter decided by the administrative
decision-maker, invading the role of the latter as fact-finder and
merits-decider”: Access Copyright,
above at paragraph 20; Delios, above at paragraph 46.
[23]
The background information exception exists
because it is entirely consistent with the rationale behind the general rule
and administrative law values more generally. The background information
exception respects the differing roles of the administrative decision-maker and
the reviewing court, the roles of merits-decider and reviewer, respectively,
and in so doing respects the separation of powers. The background information
placed in the affidavit is not new information going to the merits. Rather, it
is just a summary of the evidence relevant to the merits that was before the
merits-decider, the administrative decision-maker. In no way is the reviewing
court encouraged to invade the administrative decision-maker’s role as
merits-decider, a role given to it by Parliament. Further, the background
information exception assists this Court’s task of reviewing the administrative
decision (i.e., this Court’s task of applying rule of law standards) by
identifying, summarizing and highlighting the evidence most relevant to that
task.
[24]
The second recognized exception is really just a
particular species of the first. Sometimes a party will file an affidavit
disclosing the complete absence of evidence on a certain subject-matter. In other
words, the affidavit tells the reviewing court not what is in the record—which
is the first exception—but rather what cannot be found in the record: see Keeprite
Workers’ Independent Union v. Keeprite Products Ltd.
(1980), 29 O.R. (2d) 513 (C.A.) and Access Copyright, above at paragraph
20. This can be useful where the party alleges that an
administrative decision is unreasonable because it rests upon a key finding of
fact unsupported by any evidence at all. This too is entirely consistent with
the rationale behind the general rule and administrative law values more
generally, for the reasons discussed in the preceding paragraph.
[25]
The third recognized
exception concerns evidence relevant to an issue of natural justice, procedural
fairness, improper purpose or fraud that could not have been placed before the
administrative decision-maker and that does not interfere with the role of the
administrative decision-maker as merits-decider: see Keeprite and Access
Copyright, both above; see also Mr. Shredding Waste Management Ltd. v.
New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69, 274 N.B.R. (2d) 340 (improper
purpose); St. John’s Transportation Commission v. Amalgamated Transit Union,
Local 1662 (1998), 161 Nfld. & P.E.I.R.
199 (fraud). To illustrate this exception, suppose that after an
administrative decision was made and the decision-maker has become functus
a party discovers that the decision was prompted by a bribe. Also suppose that
the party introduces into its notice of application the ground of the failure
of natural justice resulting from the bribe. The evidence of the bribe is
admissible by way of an affidavit filed with the reviewing court.
[26]
I note parenthetically that
if the evidence of natural justice, procedural fairness, improper purpose or
fraud were available at the time of the administrative proceedings, the
aggrieved party would have to object and adduce the evidence supporting the
objection before the administrative decision-maker. Where
the party could reasonably be taken to have had the capacity to object before
the administrative decision-maker and does not do so, the objection cannot be
made later on judicial review: Zündel v. Canada (Human Rights Commission),
(2000), 195 D.L.R. (4th) 399; 264 N.R. 174; In re Human Rights Tribunal and
Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.).
[27]
The third recognized exception is entirely
consistent with the rationale behind the general rule and administrative law
values more generally. The evidence in issue could not have been raised before
the merits-decider and so in no way does it interfere with the role of the
administrative decision-maker as merits-decider. It also facilitates this
court’s ability to review the administrative decision-maker on a permissible
ground of review (i.e., this Court’s task of applying rule of law
standards).
[28]
The list of exceptions is
not closed. In some cases, reviewing courts have received affidavit evidence
that facilitates their reviewing task and does not invade the administrative
decision-maker’s role as fact-finder and merits-decider: Hartwig v. Saskatchewan (Commissioner of Inquiry), 2007 SKCA 74, 284 D.L.R. (4th)
268 at paragraph 24. For example, in one case the applicant wished to submit
that the administrative decision-maker’s decision was unreasonable because it
wrongly construed certain submissions made by counsel as admissions. But
counsel’s submissions to the administrative decision-maker were not in the
record filed with reviewing court. The reviewing court admitted evidence of counsel’s
submissions so that it could assess whether the decision was unreasonable: Ontario Shores Centre for Mental Health v. O.P.S.E.U., 2011 ONSC 358. In another case, a reviewing court
admitted a partial transcript of proceedings before an administrative
decision-maker. The transcript was prepared by one of the parties, not by the
administrative decision-maker. In the circumstances, the reviewing court was
satisfied that the partial transcript was reliable, did not work unfairness or
prejudice, and was necessary to allow it to review the administrative decision:
SELI Canada Inc. v. Construction and Specialized Workers' Union, Local 1611,
2011 BCCA 353, 336 D.L.R. (4th) 577.
(b)
Applying the principles in this case
[29]
In the present case, the issue before the Board
was whether it should reconsider its 2008 decision because of bias or a failure
of natural justice on the part of the panel that made that decision. In short,
on the merits, was there the sort of bias or failure of natural justice that
warranted reconsideration of the 2008 decision?
[30]
On this, the Board was the merits-decider and in
that capacity was the forum for the introduction of evidence relevant to the
merits. Any evidence concerning bias or a failure of natural justice concerning
the 2008 decision had to be brought before the Board.
[31]
This Court is the reviewer, not the
merits-decider. As the reviewer—particularly when engaged in reasonableness
review—this Court examines the acceptability and defensibility of the Board’s
decision on the merits, including its factual findings. Thus, normally, this
Court does not accept new evidence relevant to the merits. The general rule is
that this Court is not the merits-decider.
[32]
Here, the impugned paragraphs and exhibits the
applicant places before this Court on judicial review violate the general rule.
They are evidence that goes to the merits of the matter before the Board,
namely whether there was bias or a failure of natural justice that warranted
reconsideration of the 2008 decision. This evidence was available at the time
of the Board’s proceedings. The applicant did not place it before the Board.
[33]
The Board decided the merits on the basis of the
evidence before it. Now this Court is reviewing the Board’s decision, not
re-determining the merits. The evidence contained in the impugned paragraphs
and exhibits—evidence that goes to the merits—is not admissible here.
[34]
In this case, the recognized exceptions to the
general rule do not apply. In a way, this is not surprising because the
rationales underlying the general rule support the inadmissibility of the
applicant’s affidavit in this application.
[35]
The evidence the applicant seeks to introduce in
the impugned paragraphs and exhibits was actually or reasonably available to
her with some diligence at the time of the Board’s decision. It was relevant to
the Board’s consideration of the merits before it, namely whether the 2008
decision was vitiated by bias or a failure of natural justice. The evidence in
the impugned paragraphs and exhibits should have been placed before the Board
as the merits-decider, not before this Court as reviewer.
[36]
It follows that the impugned paragraphs and
exhibits should not be placed before the Court. In this application for
judicial review, they are inadmissible.
E.
The Board’s
letter to the Court
[37]
The Board recently became aware of the
Institute’s motion. It was concerned about the affidavit filed by the applicant
on this motion and wanted to object to it. But it was unsure about how it
should express its objection. So one of the Board’s in-house counsel sent a
letter to the Court seeking “direction on how to
proceed” and “what steps the Court would prefer
that the Board follow with respect to its objection to the…affidavit.”
[38]
I choose to characterize the Board’s letter as
an informal motion for directions from the Court under Rule 54. There is no
other way to characterize it.
[39]
Under Rule 54, it is not for this Court to give
legal, tactical or practical advice to any party. Rule 54 is no substitute for
reading the Rules and assessing on one’s own how to use them.
[40]
Gratuitously and informally, helpful Registry
staff may try to assist with queries about the Rules, particularly queries from
self-represented litigants. But it remains the responsibility of all parties,
particularly represented parties, to work out procedural matters for
themselves.
[41]
The Rules provide answers to just about all the
practical questions that arise in proceedings in the Federal Courts. Indeed,
for those questions not directly addressed by the Rules, the so-called gap
rule, Rule 4, may assist. Rule 55 even allows the Court on motion to vary or
dispense with compliance with a Rule. Given these rules and many others, rare
are the situations where a party must resort to Rule 54 rather than bringing a
motion under one or more other rules.
[42]
Rule 54 allows a party to move for directions
concerning “the procedure to be followed under [the]
Rules.” Those words, the existence of other rules and procedural case
law, and the role of this Court as an independent, impartial and neutral
decision-maker inform us as to when directions may be sought and granted under
Rule 54.
[43]
A party should use Rule 54 as a last resort. In
moving for directions under Rule 54, a party should identify with precision the
ambiguity or uncertainty arising under the Rules and the facts of the case, the
practical consequence and importance of the ambiguity or uncertainty, and why
this Court’s assistance is required by way of a Rule 54 motion rather than
bringing a motion under another rule or working the matter out for itself.
[44]
In the case of filings—an area where parties
frequently seek directions—resort to Rule 54 is always unnecessary. Where
ambiguity or uncertainty exists about a filing, a party should attempt to file
and if the Registry refuses to allow the filing, the party can ask the Registry
under Rule 72 to place the matter before a judge for a ruling.
[45]
Here, the Board could not use Rule 54. The Board
could have worked out matters for itself. It simply had to review the Rules and
decide for itself what steps it should take. For example, in order to assert
its objection to the applicant’s affidavit, the Board could have moved for
leave to add itself to the motion as a necessary party or to intervene. Both
options exist under the Rules. Whether it wished to avail itself of those
options was a practical or tactical decision for the Board.
[46]
An administrative
decision-maker that writes the sort of letter the Board wrote here, in
circumstances where it is neither a party nor an intervener and in
circumstances where its decision is under review, should be careful for other
reasons: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015
SCC 44.
[47]
Accordingly, in this case I declined to give the
Board the directions it sought and disregarded its letter. As mentioned above,
I considered the applicant’s affidavit in this motion on its own terms.
F.
Disposition
of the Institute’s motion
[48]
For the reasons set out above, the Institute’s
motion is granted with costs. The impugned paragraphs and exhibits are struck. The
impugned paragraphs are paragraphs 14-21 of the affidavit of the applicant
sworn on August 7, 2015. The impugned exhibits are “K” to “R”, inclusive,
appended to that affidavit.
[49]
The applicant shall include her affidavit in the
application record, but with paragraphs 14-21 crossed out and exhibits “K” to
“R” removed. The Registry shall not accept the application record for filing
unless the applicant has complied with this requirement and all other usual
filing requirements.
[50]
The applicant shall file her application record
and her memorandum of fact and law within forty-five days of this Court’s
order.
[51]
An order shall issue in accordance with these
reasons.
"David Stratas"
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