Yeager v. Canada (Correctional Service), docket T-549-98

Date: 20000420

Docket: T-549-98

Ottawa, Ontario, this 20th day of April, 2000

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE

BETWEEN:

MATTHEW G. YEAGER

Applicant

- and -

CORRECTIONAL SERVICE OF CANADA, COMMISSIONER OF

CORRECTIONS and INFORMATION COMMISSIONER OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

O"KEEFE J.

[1]      The hearing in this matter involved motions by both the applicant, Matthew G. Yeager, and the respondent, the Information Commissioner of Canada ("Commissioner"):

1.      A motion by the applicant for an Order: to grant the applicant leave to amend his originating notice of motion; to extend the time limit for the filing of affidavits which will permit the parties to file new evidence if necessary as a result of amendments; and to permit the filing of a supplementary memorandum of fact and law.

2.      A motion by the respondent Commissioner for an Order removing it as a responding party and to strike the applicant"s claim against the Commissioner.

MOTION OF THE APPLICANT

Amendments to the Originating Notice of Motion

[2]      The applicant seeks to amend his notice of motion to amend the relief sought in

the application. The relief originally claimed by the applicant was for: a declaration that the decision of the Commissioner violates the applicant"s Charter rights; a declaration that the decision of Correctional Service of Canada ("CSC") not to disclose the records requested by the applicant violates the Access to Information Act ("the Act"), R.S.C. 1985, c. A-1; and a writ of mandamus compelling CSC to release the requested material to the applicant.

[3]      If the amendments are allowed, the applicant intends to seek the following relief:

1.      A declaration that the Commissioner"s decision violates the Act;

2.      A declaration that CSC"s decision not to release the impugned material violates the applicant"s rights pursuant to subsection 2(b) of the Charter ; and

3.      An Order compelling CSC to release the requested material to the applicant.

[4]      In addition, the applicant seeks various amendments to the grounds for relief.

These amendments do not appear to be controversial and appear merely to clarify the facts and issues.

[5]      The respondent CSC objects to amendments to the relief claimed since these

amendments would, in its submission, necessitate new examinations of affiants and the filing of additional memoranda, thereby causing further delay in the hearing of the application. In the event that the amendments are granted, CSC requests that it be granted 30 days to file supplemental material and an additional 20 days for any re-examination or cross-examination of the applicant.

[6]      The respondent Commissioner has also filed submissions, objecting to the

proposed amendments on the grounds that they are prejudicial and are sought merely as a tactical decision adopted in an attempt to correct errors made during the conduct of the application.

[7]      For his part, the applicant argues that the amendments are necessary to ensure the

proper administration of justice, as he claims that the application was mishandled by the applicant"s first solicitor.

Applicable Law : Amendments

[8]      Rule 75 of the Federal Court Rules states that the Court may allow a party to

amend a document at any stage in a proceeding and impose terms on the granting of such leave in order to "protect the rights of all parties". This Rule is to be interpreted in light of Rule 3:

3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.

[9]      The leading case with respect to granting leave to amend documents under Rule

75 is Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (C.A.). The Court of Appeal held that it is not possible to enumerate all the factors that should be taken into account when considering whether to grant leave but, in general, an amendment should be allowed if such would help determine the real questions in controversy--provided that doing so would not result in injustice to the other parties that could not be compensated for by an award of costs.

[10]      Factors to consider in determining whether non-compensable prejudice would

result include: the stage the proceedings are at when the amendment is sought; the extent to which the amendment delays an expeditious trial; and the extent to which the position of the other party, taken in its pleadings and arguments, would be undermined or unalterable: Scanner Industries v. Canada, [1994] 69 F.T.R. 310; affirmed [1994] 172 N.R. 313 (F.C.A.).

Applicable Law: Supplementary Affidavits and Memoranda

[11]      In the case at bar, the proposed additional filings may perhaps not properly be

characterized as classic "reply evidence", as the filings are only necessary as a result of any amendments permitted to the originating notice of motion. However, the jurisprudence considering the circumstances under which reply evidence will be permitted, may provide some guidance in making a determination as to whether or not additional filings are appropriate in the case at bar.

[12]      Rule 312 provides for the filing of supplementary affidavits and memoranda with

leave of the Court. The leading case considering Rule 312 is Eli Lilly & Co. v. Apotex Inc. (1997), 77 C.P.R. (3d) 15 (T.D.). That case held that leave should be granted if doing so: would serve the interests of justice; would assist the Court; and would not cause substantial or serious prejudice to the other parties.

Analysis

[13]      While the Rules give the Court wide discretion on this issue, the case law

indicates that amendments should be permitted so long as any prejudice to other parties can be compensated for by an award of costs. Given the permissive nature of the Rule governing the granting of leave to amend documents, the nature of these proceedings, and the circumstances of the case, I am inclined to grant leave to amend the notice of motion. It is true that the amendments are being sought at a late date"subsequent to the close of pleadings"and that the nature of the amendments may necessitate a re-opening of the evidence. However, to my mind, the clarifying nature of the amendments will result in a superior framing of issues and would outweigh the deleterious effects of the amendments. The only prejudice resulting is a delay in the hearing of the application and while perhaps prima facie prejudicial and non-compensable, in the circumstances of the case, I believe this prejudice is not significant. Therefore, in my view, the salutary effects as a result of granting leave outweigh the deleterious.

[14]      With respect to the filing of additional affidavit evidence, I note that this will only

occur to the extent that it is necessary as a result of the amendments. While the relief claimed against the responding parties will have changed, the facts and issues have not"the applicant will be relying on the same facts and impugning the same course of conduct. This state of affairs will cause further delay and cost, however, I believe that this delay and cost will be minimal.

MOTION OF THE INFORMATION COMMISSIONER

[15]      The Commissioner has brought a motion to be removed as a responding party to

this application.

[16]      The Commissioner argues that it should be removed as a responding party since,

in its submission, the Commissioner"s recommendations are not the proper subject matter of an application for judicial review. In addition, the respondent Commissioner argues that the application shows no reasonable cause of action against the Commissioner. The Commissioner also submits that the negligent conduct of the applicant in the case at bar warrants the Court exercising its discretion under Rule 400(3)(k) to fix costs payable by the applicant due to improper steps taken in this application.

Applicable Law: Commissioner as Respondent

[17]      A case which I believe to be on point with respect to this issue is Canada (Human

Rights Commission) v. Canada (Attorney General) and Frank Bernard [1994] 2 F.C. 447 (F.C.A.) (hereinafter Bernard). This case was not cited by either of the moving parties. In Bernard, the Court of Appeal held that a tribunal whose decision is subject to an application for judicial review is not a proper party to that application. The Court of Appeal was influenced in its decision by a consideration of the following Rule (from the now-repealed Federal Court Rules C.R.C. 1978, c. 663) respecting service of the notice of motion:

1604.(1) The notice of motion, the applicant"s affidavits and the respondent"s affidavits shall be served on (a) the other parties; (b) the federal board, commission or other tribunal in respect of which the applicant is made; and (c) all interested persons, unless the Court orders otherwise.

1604(1) L"avis de requête, les affidavits de la partie requérante et ceux de la partie intimée sont signifiés: a) aux autres parties; b) à l"office fédéral visé par la demande; c) à toute personne intéressée, sauf ordonnance contraire de la Cour.

[18]      The Court reasoned that this section clearly implied that the federal board is

generally neither a party nor an interested person to an application.

[19]      Bernard was followed by Justice MacKay in Canada (Attorney General) v.

Canada (Information Commissioner) [1998] 1 F.C. 337 (T.D.).

[20]      This application was commenced on March 27, 1998, approximately one month

prior to the coming into force of the new Federal Court Rules, 1998, SOR/98-106. The applicability of the new Rules was not argued before me. But regardless which set of Rules are considered, the reasoning in Bernard is still good law in my opinion.

[21]      Consider new Rule 304, which replaced Rule 1604:

304. (1) Unless the Court directs otherwise, within 10 days after the issuance of a notice of application, the applicant shall serve it on (a) all respondents; (b) in respect of an application for judicial review or an application appealing the order of a tribunal, (i) . . . the tribunal in respect of which the application is brought, (iii) the Attorney General of Canada; (c) where the application is made under the Access to Information Act, the Privacy Act or the Official Languages Act, the Commissioner appointed under that Act.

304. (1) Sauf directives contraires de la Cour, le demandeur signifie l'avis de demande dans les 10 jours suivant sa délivrance: a) aux défendeurs; b) s'il s'agit d'une demande de contrôle judiciaire ou d'un appel d'une ordonnance d'un office fédéral: (i) à l'office fédéral visé par la demande, sauf s'il s'agit d'un agent des visas, (iii) au procureur général du Canada; c) si la demande est présentée en vertu de la Loi sur l'accès à l'information, la Loi sur la protection des renseignements personnels ou la Loi sur les langues officielles, au commissaire compétent sous le régime de cette loi;

[22]      In addition, Rule 303 provides more explicitly for who shall be named as a

respondent:

303. (1) Subject to subsection (2), an applicant shall name as a respondent every person (a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or (b) required to be named as a party under an Act of Parliament pursuant to which the application is brought. (2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent.

303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur: a) toute personne directement touchée par l'ordonnance recherchée, autre que l'office fédéral visé par la demande; b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi fédérale ou de ses textes d'application qui prévoient ou autorisent la présentation de la demande. (2) Dans une demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du paragraphe (1), le demandeur désigne le procureur général du Canada à ce titre.

[23]      In my view, the new Rule is slightly more explicit in its implication that the

tribunal or board shall not be party to the application.

[24]      The applicant relies on the decision of this Court in Moar v. Canada (Privacy

Commissioner) [1992] 1 F.C. 501 (T.D.), a case in which the Privacy Commissioner was not removed as a party to an application for judicial review, as being on point. While the case and the statutory scheme present in Moar are strikingly similar to those in the case at bar, the case predates Bernard by two years and therefore must be taken to have been overturned.

[25]      Bernard held that the tribunal (Commissioner) cannot be named as a respondent

in an application for judicial review of its actions or recommendations. It does not, however, follow from this finding that the board or tribunal in question is immune from judicial review. The actions of the particular federal board may still be reviewable, but without the board itself being named as a responding party.

[26]      This finding would dispose of the Commissioner"s motion. The Commissioner is

not a proper responding party. However, since many of the arguments raised by the Commissioner are effectively alternative arguments that request the striking of the relief on the basis that it evidences no reasonable cause of action, I have considered these arguments in the following sections.

Applicable Law: Scope of Review

[27]      The Commissioner forcefully argues not only that it is not to be a party, but also

that the Commissioner"s investigation and recommendations are not the proper subject matter of an application for judicial review.

[28]      The case law expressly recognizes that the Commissioner"s investigation is

reviewable for lawfulness and for respect of jurisdiction, but not for review of the appropriateness of the Commissioner"s use discretion. In Canada (AG) v. Canada (IC), supra, Justice MacKay stated that so long as the minimal standards of fairness are met and the recommendation is not clearly unreasonable in light of the evidence and materials before the Commissioner, the Court will not intervene:

The merits of the recommendation are not a matter for the Court. Unless the application and supporting affidavits establish a basis for finding the Commissioner acted unlawfully, that his recommendation was clearly unreasonable on the basis of material before him, or that he failed to meet the minimal standard of fairness required in the exercise of his administrative discretion, the Court may not intervene.

[29]      And in Wells v. Canada (Minister of Transport), T-1729-92, April 19, 1993, per

Jérôme A.C.J. (as he then was) stated that:

[w]hen the complaint against the public body is not the refusal to fulfil its statutory obligations, but only the manner in which those obligations are carried out, the Court will stop short of intervening unless there is some indication that the public body acted in other than good faith or for improper motives.

[30]      These cases clearly contemplate judicial review of the conduct of a

Commissioner"s investigation, contrary to the forceful argument of counsel for the Commissioner.

Applicable Law: Motion to Strike Due to No Reasonable Cause of Action

[31]      The leading case concerning the circumstances in which a pleading or

application can be struck out is David Bull Laboratories v. Pharmacia [1995] 1 F.C. 588 (C.A.) at page 600. The test articulated in that case held that the application would be struck out if it was "so clearly improper as to be bereft of any possibility of success." The case determined that the Court"s authority to strike existed due to the inherent jurisdiction of the Court to control its own processes, or through Rule 4--the "gap rule""which allows the Court to provide for procedural matters not dealt with explicitly in the Rules .

[32]      The Commissioner argues that the application is "bereft of any possibility of

success" since the case against the Commissioner is moot. According to the Commissioner, the case against it is moot since the Commissioner makes only recommendations and cannot order the CSC to disclose the records to the applicant.

[33]      I have reviewed the affidavits of Mr. Yeager sworn to on March 27, 1998 and in

particular, paragraph 22 of that affidavit as well as paragraph 7 of his affidavit sworn to May 31, 1999, along with paragraph 7 of the amended grounds for the application. What I can glean from these paragraphs is that the applicant is alleging that the Commissioner did not carry out a proper investigation of his complaint.

[34]      Essential to bear in mind is that this is not a hearing on the merits of the

applicant"s application, but is rather a motion which requires me to decide whether or not the applicant"s application with respect to the Commissioner is "so clearly improper as to be bereft of any possibility of success" (see David Bull Laboratories v. Pharmacia (supra)). If the applicant is correct as stated in ground 7 of his amended Notice of Motion and paragraphs 7 and 22 of his affidavits, then it would appear that the Commissioner may not have addressed the complaint put to him by Mr. Yeager. The Commissioner is required to investigate complaints received from persons who have been refused access to a record under the Access to Information Act. If the allegations are correct, then it is for the judge hearing the motion on the merits to decide and not the motions judge on a motion to strike out a claim. The applicant is not seeking a review of the decision or recommendation made by the Commissioner, but rather that the Commissioner did not address the complaint that was filed.

[35]      Further, I do not believe that the law prevents the applicant from seeking relief

against the Commissioner in the circumstances of the case at bar. There is evidence that the applicant seeks to review the Commissioner"s conduct and alleges that he conducted an unfair and incomplete investigation. No where does the case law forbid such a review. In addition, I find it inappropriate to seek to deny the applicant relief against the Commissioner merely because the application seeks relief in the form of access to the CSC records as well. The relief claimed is two-pronged: review of the Commissioner"s investigation; review of CSC"s refusal to disclose records. While the relief against the Commissioner cannot accomplish the aim of disclosure of the records, this is not a reason to prevent the applicant from seeking relief against the Commissioner at all.

[36]      I would add, to make it abundantly clear, that I accept the law as stated by

MacKay J. in Canada (Attorney General) v. Canada, supra at pages 365 to 366 where he said:

[51] In my opinion, the applicants" originating motion seeks to challenge the appropriateness of the Commissioner"s recommendation. The merits of the recommendation are not a matter for the Court. Unless the application and supporting affidavits establish a basis for finding the Commissioner acted unlawfully, that his recommendation was clearly unreasonable on the basis of material before him, or that he failed to meet the minimal standard of fairness required in exercise of his administrative discretion, the Court may not intervene.

But as I stated earlier, the allegation in the case at bar is that the Commissioner did not address the complaint that was forwarded to him. As well, there is the allegation that he did not allow the applicant an opportunity to make representations. These are matters for the decision by the judge hearing the motion.

[37]      And against this backdrop is the decision in David Bull which provides a strict

test for preliminary motions to strike. In a summary application such as the one in the case at bar, the merits of the case should be argued at the actual hearing and therefore, the motion to strike out the claims against the Commissioner is not granted.

[38]      In conclusion, the Commissioner should be struck as a responding party and his

name removed from the style of cause. The Rules and the case law hold that the board or tribunal whose decision is under review is not to be a responding party in those proceedings.

[39]      The applicant is granted thirty (30) days from the date of this Order to file

supplementary materials, following which the respondents shall have twenty (20) days to complete any re-examination or cross-examinations. The respondents shall also have thirty (30) days following the filing of the applicant"s supplementary materials to file its supplementary materials.

[40]      The difficulty that exists, however, is that as a result of the allowance of the

amendments to the Notice of Motion and the striking of the Commissioner as a responding party, relief is being claimed against the Commissioner, but there is no responding party to these claims.

[41]      Therefore, I further order that the allowance of the amendments to the relief

claimed against the Commissioner and the grounds therefor is conditional upon a proper responding party being named and served with all relevant documentation in the proceeding claiming relief against the Commissioner, in compliance with Rule 303(2) of the Federal Court Rules within twenty-one (21) days of this Order. Failure to comply will result in the allowance of the motion to strike the relief against the Commissioner.

[42]      The Office of the Information Commissioner of Canada shall, however, continue

to be served with all filings in this proceeding.

[43]      The respondents shall have their costs both on the motion to amend the pleadings

and on the motion to remove the Commissioner as a party in amounts to be agreed upon by the parties and failing agreement of the parties, the costs shall be determined by the assessment officer. The applicant shall have his costs against the Commissioner on his motion to strike in an amount to be agreed upon by the parties and failing agreement, the amount shall be determined by the assessment officer.

ORDER

IT IS HEREBY ORDERED that:

[44]      The motion to amend the originating notice of motion is allowed.

[45]      The applicant shall have thirty (30) days to file supplementary materials, followed

by thirty (30) days for the respondents to file supplementary materials and that the respondents have twenty (20) days after the expiry of the thirty (30) days in which the applicant may file supplementary materials for re-examination or cross-examination on the applicant"s supplementary affidavits.

[46]      The motion removing the Information Commissioner as a responding party is

allowed.

[47]      The motion of the Information Commissioner to strike out the application for

review against the Information Commissioner is dismissed.

[48]      The allowance of the amendments to the relief claimed against the Commissioner

and the grounds therefor is conditional upon a proper responding party being named and served with all relevant documentation in the proceeding claiming relief against the Commissioner, in compliance with Rule 303(2) of the Federal Court Rules within twenty-one (21) days of this Order. Failure to comply will result in the allowance of the motion to strike the relief against the Commissioner.

[49]      The respondents shall have their costs on the motion to amend the pleadings and

on the motion to remove the Information Commissioner as a party in amounts to be agreed upon by the parties and failing agreement of the parties, the costs shall be determined by the assessment officer.

[50]      The applicant shall have his costs against the Information Officer on his motion to strike in an amount to be agreed upon by the parties and failing agreement, the amount shall be determined by the assessment officer.

"John A. O"Keefe"

J.F.C.C.

Ottawa, Ontario

April 20, 2000