Date: 20040311
Docket: T-2465-03
Citation: 2004 FC 396
Toronto, Ontario, March 11th, 2004
Present: The Honourable Mr. Justice Russell
BETWEEN:
THE HONOURABLE SINCLAIR STEVENS
Applicant
and
THE CONSERVATIVE PARTY OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This motion is for an order that the Chief Electoral Officer of Canada (ACEO@) provide the Applicant with certified copies of all notes, memoranda, correspondence, emails, voicemails and other documents in his possession that concern the Conservative Party of Canada.
[2] The motion grows out of an application for judicial review of a decision of the CEO rendered December 7, 2003, (made pursuant to ss. 366 and 400-402 of the Canada Elections Act) to amend the registry of political parties by replacing the names AProgressive Conservative Party of Canada@ and ACanadian Reform Conservative Alliance@ with the name AConservative Party of Canada.@ The application for judicial review also seeks review of the CEO=s subsequent refusal to reconsider the decision of December 7, 2003.
Background
[3] The Notice of Application contained the following request, under Rule 317 of the Federal Court Rules, 1998, for the production of material in the possession of the CEO:
The applicant requests the Chief Electoral Officer to send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the Chief Electoral Officer to the applicant and to the Registry:
1. All notes, memoranda, correspondence, emails, voicemails and any other documents concerning the Conservative Party of Canada.
[4] Sections 400 and 401 of the Canada Elections Act provide as follows:
| 400. (1) Two or more registered parties may, at any time other than during the period beginning 30 days before the issue of a writ for an election and ending on polling day, apply to the Chief Electoral Officer to become a single registered party resulting from their merger.
(2) An application to merge two or more registered parties must
(a)be certified by the leaders of the merging parties;
(b) be accompanied by a resolution from each of the merging parties approving the proposed merger; and
(c) contain the information required from a party to be registered, except for the information referred to in paragraph 366(2)(I).
401. (1) The Chief Electoral Officer shall amend the registry of parties by replacing the names of the merging parties with the name of the merged party if
(a) the application for the merger was not made in the period referred to in subsection 400(1); and
(b) the Chief Electoral Officer is satisfied that
(i) the merged party is eligible for registration as a political party under this Act, and
(ii) the merging parties have discharged their obligations under this Act, including their obligations to report on their financial transactions and their election expenses and to maintain valid and up-to-date information concerning their registration.
(2) The Chief Electoral Officer shall notify the officers of the merging parties in writing whether the registry of parties is to be amended under subsection (1).
(3) If the Chief Electoral Officer amends the registry of parties, he or she shall cause to be published in the Canada Gazette a notice that the names of the merging parties have been replaced in the registry with the name of the merged party.
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400. (1) Deux ou plusieurs partis enregistrés peuvent, en tout temps sauf pendant la période commençant trente jours avant la délivrance du bref pour une élection et se terminant le jour du scrutin, demander au directeur général des élections l'enregistrement du parti issu de leur fusion.
(2) La demande est assortie_:
a) d'une attestation du chef de chaque parti fusionnant;
b) d'une résolution de chaque parti fusionnant autorisant la fusion;
c) des renseignements exigés d'un parti politique pour devenir un parti enregistré, sauf ceux visés à l'alinéa 366(2)I).
401. (1) Le directeur général des élections substitue, dans le registre des partis, le nom du parti issu de la fusion à ceux des partis fusionnants_:
a) si la demande de fusion n'est pas présentée pendant la période mentionnée au paragraphe 400(1);
b) s'il est convaincu que, à la fois_:
(i) le parti issu de la fusion est admissible à l'enregistrement sous le régime de la présente loi,
(ii) les partis fusionnants ont assumé les obligations que leur impose la présente loi, notamment en matière de reddition de compte sur leurs opérations financières et sur leurs dépenses électorales et de mise à jour des renseignements qui concernent leur enregistrement.
(2) Il notifie par écrit à tous les dirigeants des partis fusionnants la modification ou non du registre en conformité avec le paragraphe (1).
(3) Il fait publier dans la Gazette du Canada un avis de la radiation de l'inscription des partis fusionnants du registre des partis et de l'inscription du parti issu de la fusion.
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[5] The Applicant=s request for documents as contained in the Notice of Application was extremely wide-ranging and required the production of any and all documents in the files of Elections Canada A...concerning the Conservative Party of Canada ....@.
[6] As Elections Canada understood its obligations under Rule 317, it was required to produce the documents that were relevant to the CEO=s decisions, and which were not already in the possession of the Applicant. Neither the CEO nor Elections Canada maintained a discrete file for the particular determinations in issue. Since Elections Canada is the custodian of all the files relating to the CEO, it necessarily had to undertake a review of all its documents and identify, on a document-by-document basis, what material was relevant to the judicial review application, and what was irrelevant and so not producible under Rule 317.
[7] Elections Canada=s evidence is that it determined, for each document, whether the CEO had seen and considered the document, or been made aware of its contents, in arriving at his decisions, and whether any documents, relevant or not, fell within solicitor-client privilege. Where it was determined that the CEO had seen a document, or had been made aware of its contents, then it was produced to the Applicant. Any documents that had not been seen or considered by the CEO in making the challenged decision(s) were not produced.
[8] Following this review, Elections Canada served the Applicant, the Respondent, and this Court with a certified copy of the documents considered by the CEO in his decisions.
[9] The Applicant was dissatisfied with the documents produced by Elections Canada and, on February 26, 2004, served a notice of motion requesting the following:
An order that the Chief Electoral Officer of Canada provide the applicant with certified copies of all notes, memoranda, correspondence, emails, voicemails and other documents in his possession concerning the Conservative Party of Canada.
Analysis
[10] The Applicant takes the position that all of the documents in the possession of Elections Canada concerning the Conservative Party of Canada are relevant to his judicial review application, regardless of whether the CEO and Elections Canada have disclosed them as relevant documents or not.
[11] The Applicant=s concerns in this regard are understandable. The sequence of events that led to the two decisions in question in the judicial review application could conceivably have some relevance for the decisions themselves. The fact that the decision of December 7, 2003, was made on a Sunday raises a suspicion that, as the Applicant alleges in his judicial review application, Athe Chief Electoral Officer=s swift approval of the merger on Sunday, December 7, 2003, contravened the principles of natural justice by denying [some] members of the Progressive Conservative Party of Canada the right to be heard with respect to the merger application@.
[12] In light of the broad range of procedural and substantive legal concerns raised by the Applicant in his judicial review application, Elections Canada has compiled a list of documents that were not disclosed on the basis that they were not regarded as relevant. In addition, Elections Canada has provided a list of documents that were not disclosed because they were regarded as attracting solicitor-client privilege.
[13] The Applicant questions these lists on the basis that any decision on relevancy should not be a matter for the discretion for the CEO and Elections Canada and that many of the documents on the privileged list are not truly privileged. The Applicant feels that all documentation in the possession of the Elections Canada that relates to the Conservative Party of Canada should be disclosed so that the relevance of any particular document can be objectively determined.
[14] Besides privileged documents, Elections Canada felt that relevant documents were those documents considered by the CEO in reaching his decisions, or those documents of whose contents he was made aware in reaching his decisions. Any documents that were not seen or considered by the CEO in making the challenged decisions were not produced. Elections Canada also says that, in deciding the relevance of documents, regard was given to the natural justice issues raised by the Applicant in the judicial review application.
[15] I agree with Elections Canada that Federal Court Rules 317 and 318 were not intended to grant the Applicant the kind of broad right to discovery that a request for all Adocuments concerning the Conservative Party of Canada@ attempts to accomplish. The purpose of Rule 317 is to ensure that the record that was before the decision-maker is before the reviewing court. See Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337 (T.D.). To grant the Applicant access to all documents in Election Canada=s files that concern the Conservative Party of Canada would be to encourage and condone a fishing expedition. Rule 317 by its terms only requires the disclosure of Amaterial relevant to an application ...@ See Atlantic Prudence Fund Corp. v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1156 (T.D.) at para. 11, and Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia - Létourneau Commission) (1997), 130 F.T.R. 183 (T.D.).
[16] Elections Canada says it has acted in good faith and has disclosed all documents (other than privileged documents) that are relevant to the issues raised in the judicial review application in accordance with the requirements of Rule 317. The Applicant is suspicious that this may not have occurred. But the Applicant=s suspicions are not evidence that Elections Canada has not complied with Rule 317. There is no evidence before me to suggest that the decisions of the CEO were part of the political chicanery that the Applicant suspects may be behind the merger of the two parties.
[17] The Affidavit evidence filed by Elections Canada speaks to the following:
Accordingly, upon receipt of the Notice of Application, Elections Canada undertook a document-by-document review of its files to determine which documents were relevant to the decisions in the Notice of Application, and were therefore required to be produced under Rule 317. In determining whether a document was relevant to the decisions in issue, Elections Canada was guided by whether the Chief Electoral Officer had seen the document, or been made aware of the contents of the document.
Elections Canada also considered that, under Rule 317, documents that were already in the Applicant=s possession need not be produced. This included copies of correspondence sent by or to the Applicant=s counsel.
Following this review, Elections Canada delivered a certified copy of the relevant documents to the Applicant, the Respondent, and this Court on January 28, 2004.
The Applicant was not satisfied with Elections Canada=s productions, and on February 26, 2004, following an exchange of correspondence between counsel, the Applicant served a notice of motion on Elections Canada, requesting:
AAn order that the Chief Electoral Officer of Canada provide the applicant with certified copies of all notes, memoranda, correspondence, emails, voicemails and other documents in his possession concerning the Conservative Party of Canada.@
The language contained in the notice of motion is essentially identical to that which was used in the Notice of Application. As Rule 317 is understood by Elections Canada, the Applicant is not permitted to make such a wide-ranging request for production, which is tantamount to seeking discovery from Elections Canada and the Chief Electoral Officer concerning any documentation relating to the Conservative Party of Canada.
The documents that were produced by elections Canada in accordance with the requirements of Rule 317 have been produced by the Applicant at Tab 2B of its Motion Record.
Attached as Exhibit A to my affidavit is a list of documents that are contained in Elections Canada=s files that were not produced under Rule 317 because they were reviewed and determined not to be relevant to the decision in issue. The basis on which it was determined that these documents were not relevant, was that the Chief Electoral Officer never say these documents, and was not made aware of their contents in the course of making the decisions in question.
Elections Canada has attempted in good faith to comply fully and impartially with Rule 317 by ensuring that all the documents seen by the Chief Electoral Officer, or of whose contents he was made aware, have been placed before the Court, and that irrelevant, extraneous or privileged material is excluded from the Court record. However, if the Court determines that additional documentation from Elections Canada=s files should be produced, then Elections Canada and the Chief Electoral Officer will immediately abide by whatever directions the Court may deem appropriate to give.
[18] I have no evidence before me to suggest that Elections Canada has not complied with Rule 317.
[19] As regards the documents in which privilege is claimed, the Affidavit of Elections Canada says as follows:
In addition to the above, certain documents listed in Exhibit A are also considered by Elections Canada to be subject to solicitor-client privilege. I have therefore attached as Exhibit B a list of the documents that Elections Canada believes to be subject to solicitor-client privilege on the grounds that they constitute confidential communications between Elections Canada legal counsel. Again, these communications were not seen by or discussed with the Chief electoral Officer.
[20] Once again, I have no evidence before me to suggest that these documents are either relevant to the judicial review application or that solicitor-client privilege has not been appropriately claimed.
[21] I am well aware that where a tribunal asserts solicitor-client privilege as a basis for objecting to the production of portions of a record, then the tribunal must establish that the privilege arises on the facts. See Williamson v. Canada (Attorney General), 2003 FCA 361. The evidence produced by Elections Canada in this case says merely that the documents in which privilege is claimed Aconstitute confidential communications between Elections Canada legal counsel.@ 1185740 Ontario Ltd. v. Canada (Minister of National Revenue - M.N.R.), [1999] F.C.J. No. 1432 (C.A.) establishes that where solicitor-client privilege is challenged, the Court should examine the statements and documents said to be privileged to determine whether the privilege exists. In the usual situation the Court would direct, in accordance with Rule 318(3), that further submissions be made in order to ensure that the conditions for solicitor-client privilege exist for the documents referred to in Exhibit A of the Election Canada materials. But the evidence of Elections Canada says clearly that Athese communications were not seen or discussed with the Chief Electoral Officer,@ so that it is difficult to see how, even if not privileged, they can be considered as part of the record under Rule 317. Without evidence from the Applicant on this point, the Court has no reason to question the position on relevance taken by Elections Canada. 1185740 Ontario Ltd., supra, establishes that only documents that were before a tribunal when it made its decision need to be produced.
[22] Elections Canada has stated clearly in its evidence that it has disclosed all documents seen or considered by the CEO that are relevant to the decisions at issue in the judicial review application. The Court has no reason to suspect that this is not the case. The Applicant has referred to particular documents that he would like to see on the excluded list, but has suggested no real basis upon which they could be relevant under Rule 317 or why the Elections Canada evidence that they were not part of the record before the CEO when the decisions were made should not be believed. In Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.), it was clearly established that a tribunal is obliged to produce relevant documents only. A document is relevant to an application for judicial review if it may affect the decision that the reviewing court might make. Relevance is determined by reference to the grounds set out in the judicial review application and its supporting affidavit. After reviewing the grounds advanced by the Applicant in his judicial review application, I see no reason on the evidence before me to depart from the usual rule that only documents that were before the tribunal when it made its decision need to be produced.
ORDER
THIS COURT ORDERS that
1. The Motion is dismissed.
2. Elections Canada shall have the costs of this Motion payable forthwith and in any event of the cause.
AJames Russell@
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2465-03
STYLE OF CAUSE: THE HONOURABLE SINCLAIR STEVENS
Applicant
and
THE CONSERVATIVE PARTY OF CANADA
Respondent
DATE OF HEARING: MARCH 8, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
DATED: MARCH 11, 2004
APPEARANCES BY:
Peter Rosenthal For the Applicant
Malcom Ruby
Laurie Livingstone For the Respondent
SOLICITORS OF RECORD:
Peter Rosenthal
Toronto, Ont. For the Applicant
Malcom Ruby Toronto, Ont.
Laurie Livingstone
Toronto, Ont. For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040311
Docket: T-2465-03
BETWEEN:
THE HONOURABLE SINCLAIR STEVENS
Applicant
and
THE CONSERVATIVE PARTY OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER
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