Gaudes v. Canada (Attorney General), 2005 FC 351

Date: 20050311

Docket: T-537-03

Citation: 2005 FC 351

Ottawa, Ontario, this 11th day of March, 2005

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

CAROLE GAUDES

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

SNIDER J.

[1]         The Applicant, Ms. Carole Gaudes, makes a motion by way of an appeal of the Order of Prothonotary Tabib made September 30, 2004. In the Order in issue, the Prothonotary upheld the Respondent's objection to the Applicant's request for material made pursuant to Rule 317 of the Federal Court Rules, 1998.

Page: 2

Background

[2]         For over 20 years, Ms. Carole Gaudes has been a civilian employee of the Royal Canadian Mounted Police ("RCMP"), working as a Forensic Identification Technician in the Forensic Laboratory and Identification Group (the "FLI-FIT group"). Since the 1970s, pay for the FLI-FIT group has been determined and adjusted in accordance with a unionized group of public servants known as the Clerical and Regulatory Group, Level 5 ("CR-5 group"). Effective in 1998, arising from a pay equity ruling, the CR-5 group received both retroactive and future adjustments to their pay. The FLI-FIT group received only future pay adjustments. These employees would like to receive the retroactive payments as well. Ms. Gaudes is the Applicant in an application for judicial review to assist in this fight.

[3]         Decisions related to pay matters such as this are made by the Treasury Board of Canada, who is the employer of federal public servants. The original Notice of Application for Judicial Review, filed April 7, 2003, sought review of the decision of the Commissioner of the RCMP refusing to make a submission to the Treasury Board. In addition to certiorari quashing the "decision", the Applicant also sought declaratory relief and an order of mandamus, with the ultimate goal of requiring the Treasury Board to authorize and implement the retroactive pay for the FLI-FIT group. The Notice of Application was amended on February 24, 2004. In the Amended Notice of Application, with respect to the merits of its application, the Applicant now seeks:

1.       A declaration that the FLI-FIT group is entitled to the wage adjustments;

2.       A declaration that the Treasury Board is required to authorize the implementation

and payment of the wage adjustments to the FLI-FIT group;

Page: 3

3.       A declaration that the President of the Treasury Board, or the Secretariat acting on behalf of the President of the Treasury Board, had no jurisdiction or authority to make a decision with respect to the wage adjustments or, alternatively, that the President had no jurisdiction or authority to delegate to the Secretariat any decision regarding the wage adjustments, such that the Secretariat decisions are invalid or unlawful; and

4.       An order setting aside the Secretariat decisions.

[4]         In a letter dated June 21, 2004, the Respondent confirmed earlier voice-mail advice that the "Respondent will not be taking the position that the Treasury Board Secretariat made a decision in September 2000 for the purposes of s. 18.1 of the Federal Court Act regarding the eligibility of the FLI-FIT group for the retroactive pay equity payments". As stated by the Respondent, the result was that there was no need for the Applicant to seek the relief claimed in paragraphs 3 and 4 of the Amended Statement of Claim. Despite this advice, the response of the Applicant, by letter dated July 29, 2004, was that there was a decision of the Secretariat in September 2000 that the FLI-FIT group was not entitled to the retroactive payments and further decided not to submit the matter to the Treasury Board for its decision and authorization.

[5]         On May 21, 2004, the Applicant made a request, pursuant to Federal Court Rule 317, for information. By letter dated June 14, 2004, the Respondent, pursuant to Rule 318, objected to the production of the requested documentation on the following grounds:

_     The request, coming this late in the judicial review process, constitutes an abuse of process;

_     Rule 317 is not applicable where no decision is under review; the Applicant seeks only declaratory relief;

_     The requested documents are irrelevant to the grounds cited in support of the application; and

Page: 4

_     The documents are protected by section 39 of the Canada Evidence Act (as confidential Privy Council documents) or by solicitor-client privilege.

[6]         In her Order dated September 30, 2004, the Prothonotary upheld the Respondent's objection to the Applicant's request for production. The main thrust of her decision was as follows:

Rule 317 requires that there be a "decision or order" of a tribunal.

The Respondent's position that there was no decision made by the Secretariat means that there is no "decision or order" for judicial review and no possible application of Rule 317.

Material before the Secretariat in reaching any purported decision could not be relevant to the judicial review as now framed.

[7]         For the reasons that follow, I am not persuaded that the Prothonotary erred in denying the Applicant's request for documents related to the "decision" of the Treasury Board Secretariat (the "Secretariat").

What is the appropriate standard of review?

[8]         First, I note that the decision of the Prothonotary concerns a requested order for documents. This is not a ma1tter vital to any final issue. Accordingly, the Prothonotary's Order denying the request may be overturned only if the exercise of her discretion was clearly wrong in that it "was based upon a wrong principle or upon a misapprehension of the facts" (Canada v. Aqua-Gem

Page: 5

Investments Ltd., [1993] 2 F.C. 425 (F.C.A.), at 454; 1029894 Ontario Inc. v. Dolomite Svenska Aktiebolag, [1999] F.C.J. No. 1719, at para. 8 (F.C.T.D.)).

Did the Prothonotary misapprehend the evidence in concluding that there was no "decision"?

[9]         As I understand the submissions of the Applicant, her argument is that the Prothonotary misapprehended the facts or erred in two ways. Firstly, the Prothonotary erred in concluding that there was no decision. The second part of the Applicant's argument is that she ought to have access to these documents on the basis of their relevance.

[10]       The critical question in this appeal is whether the Prothonotary erred in concluding that there was no decision of the Secretariat. The Prothonotary dealt with this point at length in her decision as follows:

The principle and ultimate issue to be determined by the Court on this judicial review application is whether the Treasury Board is legally bound to apply to the FLI-FIT group the retroactive wage adjustments made in respect of the Public Service CR-5 group ¼

The main thrust of the Applicant's argument has therefore been centered on the fact that, in her amended application, the Applicant specifically seeks judicial review of a purported decision of the Treasury Board Secretariat on behalf of the President of the Treasury Board to refuse to make the wage adjustment. The relief sought in respect to the TBS decision has however been overtaken by the Respondent's recent advice that it is now taking the position that no decision had been made by the TBS in respect of the wage adjustment. The Applicant initially accepted the Respondent's position and advised in consequence, in counsel's letter of June 30, 2004, that she would withdraw the prayer for relief set out in paragraphs 3 to 6 of her application seeking that the TBS decision be set aside. The parties' revised positions effectively lead to the result that there is no longer

any decision of the TBS under judicial review, and no possible application of Rule 317.

However, upon further consideration, the Applicant has retreated from her June 30, 2004 position and maintains that, as the evidence shows that the TBS did make a decision, it is not open to the Respondent to take the position that a decision was not made. The Applicant therefore maintains that the TBS decision remains the subject of this judicial review application.

Page: 6

The Applicant argues that the Respondent's about-face is purely an attempt to shield relevant documents from disclosure under Rule 317. This may be so, but whatever the motivation, the net effect is to render the application, as it relates to the alleged TBS decision moot; it allows the application to proceed directly to the essential issue of whether the Treasury Board, in the absence of a decision by the TBS, is bound to extend the retroactive benefits of the wage adjustment to the FLI-FIT group.

. . .

I conclude that there is, in effect, no decision of the TBS subject to this judicial review application.

[11]       Was there a decision in this case that underlies the application for judicial review? The Applicant argues that the Secretariat must have made a decision to award pay raises on a going-forward basis but not retroactively to the pay group of the Applicant. She submits that the evidence shows that this decision was taken in 2000 and finally confirmed in an e-mail in March 2003.

[12]       I agree with the Applicant that some form of decision was made by the Secretariat - likely in 2000. However, this does not end the matter. As was submitted by the Respondent in the submissions on the original motion and further clarified in oral submissions to me, the Respondent has conceded that the Secretariat had no jurisdiction to make any decision on the question at issue. In other words, the Secretariat had no authority to make a decision on whether the Applicant and other members of the FLI-FIT group were entitled to retroactive benefits. A decision made without authority is no decision. The Prothonotary was correct in concluding that "there is, in effect, no decision of the TBS subject to this judicial review application".

[13]       I have read the Amended Notice carefully and I am satisfied that the underlying thrust of the application is two-fold. First, the Applicant has applied to quash the decision of the Secretariat on the basis that it was not within the competence of the Secretariat to make a decision on the Wage

Page: 7

Adjustment for the Applicant and others in the FLI-FIT group. Secondly, she seeks declaratory relief as against the Treasury Board itself. With respect to the first part of the application, the Respondent has conceded completely. That is, the Respondent admits that the Secretariat had no authority to take the decision. This leaves only the declaratory relief. I cannot see any other way to interpret what has transpired on this judicial review application.

[14]       In light of the confusion that has ensued on this judicial review, I can understand why the Applicant was not fully aware of the Respondent's position. It was only when pushed during oral argument that I understood the situation. Nevertheless, the Prothonotary appears to have completely grasped the situation. There was no misapprehension of the facts.

Did the Prothonotary err in refusing to apply Rule 317 where there is no "decision"?

[15]       Even in the absence of a decision, the Applicant continues to argue that the requested documents must be produced. She submits that the Prothonotary erred. In this argument, the

Applicant relies on the decision of this Court in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No. 556 (F.C.T.D). In that case, the learned judge

was dealing with a request by the Applicant in a judicial review application for documents pursuant to Rule 1612, the predecessor to Rule 317. The Applicant sought various policy documents related to "letters of advice" given by the Department of Fisheries and Oceans. The Court ordered the production of the documents on the basis that the materials met the two-prong test of Rule 1612 that they were in possession of the department and were relevant.   

Page: 8

[16]       One difficulty with applying this jurisprudence to the facts before the Prothonotary and before me is that Rule 317 differs from its predecessor in a significant way. Rule 1612 referred to "material that is in the possession of the federal board, commission or other tribunal and not in the party's possession" and required that the material "must be relevant to the application for judicial review". Rule 317 adds another element to the demand for documents. That is, a party may only request material "that is in the possession of the tribunal whose order is the subject of the application". Thus, before invoking Rule 317 to obtain documents, there must be a decision of a tribunal.

[17]       Further, I note that this expansive view of Rule 1612 is not supported by other jurisprudence. For example, in the Federal Court of Appeal decision in Eli Lilly and Co. v. Nu-Pharm Inc., [1996] F.C.J. No. 904, at para. 25 (F.C.A.), the Court stated the following:

Contrary to the appellant's contention, the required information was not accessible by the respondents pursuant to Rule 1612 . . . Those rules provide a means of enabling a party wishing to rely on material in the possession of a federal board, commission or other tribunal and not in that party's possession, to have access to that material. . . .This surely has reference to "material" that was before the federal board, commission or other tribunal whose decision is the subject of an application for judicial review . . . I cannot see how those rules could be made to apply in the circumstances where no decision of the Minister is under review in the within proceeding. [emphasis added]

[18]       There is also a consistent line of cases that have held that the only material that is subject to production under either Rule 317 or its predecessor, is the material that was before the decision maker (see, for example, Hiebert v. Canada (Correction Service), [1999] F.C.J. No. 1957 (F.C.T.D.); Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C.A.)). In the

Page: 9

case at bar, where no decision has been rendered, the content of such material can only be the subject of speculation. Indeed, this is reflected in the expansive list of requested documentation.

[19]       Finally, I note that the Applicant has already filed affidavits that contain a considerable amount of evidence to support her position on this judicial review. Further documents may be available through an Access to Information request.

Conclusion

[20]       In conclusion, I am not persuaded that the Prothonotary erred. The motion on appeal will be dismissed with costs to the Respondent.

ORDER

THIS COURT ORDERS THAT:

1.                         The motion is dismissed with costs to the Respondent.

2.             The Applicant shall have 20 days from the date of this Order to serve and file the Applicant's Record.

"Judith A. Snider"