Date: 20021224
Court File: T-2117-00
Neutral citation: 2002 FCT 1328
Ottawa, Ontario, this 24th day of December 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
CANADA POST CORPORATION
Applicant
and
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
Respondent
and
PETER HOWARD
Added Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an appeal by Canada Post Corporation ("CPC") of a decision of the Prothonotary dated November 8, 2002, dismissing CPC's motion to file a supplementary affidavit pursuant to Rule 312 of the Federal Court Rules, 1998, on the grounds of relevance.
[2] The applicant submits that the Prothonotary misapplied the test of relevance, and made in substance a finding of admissibility and weight of the evidence, which ought to have been left to the trial Judge hearing the applications for judicial review. Thus, it is submitted that the Prothonotary erred in rejecting the supplementary affidavit.
BACKGROUND
[3] CPC filed two applications for review pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1, ("Act"), of two decisions dated September 29, 2000 and October 23, 2000, allowing the release of certain documents relating to CPC. As a third party, CPC objects to the release of these documents.
[4] One of the main issues raised by CPC in both of these applications is whether the documents in question are under the control of a government institution within the meaning of Schedule 1 of the Act. The applicant contends that the said documents are under the control of the Minister responsible for CPC, a body or office created by the Canada Post Corporation Act, R.S.C. 1985, c. C-10 (the "CPC Act") which is not listed in chedule 1 of the Act. CPC therefore, claims that the documents are not under the control of the Minister of Public Works and Government Services, the entity to whom the access requests were directed. As a consequence, they may not be accessed under the Act.
[5] On or about September 28, 2001, in accordance with Rule 306, CPC filed its supporting affidavits and documentary exhibits in both proceedings. One of these affidavits was the affidavit of William R. Price, dated September 25, 2001, in which information relating to the relationship between CPC, the Minister responsible for CPC, and the Corporate Implementation Group is set out. On or about December 20, 2001, the applicant's records were filed with the Court in both proceedings.
SUPPLEMENTARY AFFIDAVIT
[6] The supplementary affidavit of Mr. Price, which CPC is attempting to add as evidence to its records, purports to add information not available at the time the original affidavits were filed on or about September 28, 2001. Furthermore, the materials appended to Mr. Price's supplementary affidavit were not available at the time CPC's application records were filed.
[7] The additional information relates to changes in the ministerial responsibility for CPC, as well as in the Corporate Implementation Group, occurring after the filing of the applicant's records. The responsibilities of, and the reporting relationships between, these entities are in issue in the two review proceedings.
[8] On or about January 15, 2002, the Honourable John Manley was named Deputy Prime Minister of Canada and Minister of Infrastructure in Crown Corporations. By an Order-in-Council dated January 15, 2002, the Deputy Prime Minister and Minister of Infrastructure and Crown Corporations was designated as the Minister for the purposes of the CPC Act, hence the change in ministerial responsibility for CPC following the filing of the initial affidavits.
[9] As a follow up to the change in ministerial responsibility for CPC, an Order-in-Council was passed on February 20, 2002, whereby part of the federal public service known as the Corporation Implementation Group was rearranged and transferred to the Office of Infrastructure and Crown Corporations of Canada in accordance with the Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34. Other changes were made to the ministerial responsibility for CPC and to the Corporation Implementation Group up to August 7, 2002 and are referred to in the supplementary affidavit.
CPC'S SUBMISSIONS CONCERNING THE RELEVANCY OF THE SUPPLEMENTARY AFFIDAVIT
[10] CPC submits that the supplementary affidavit is relevant to the issues raised in the applications. One of the issues raised by CPC in the main applications is that the office of the Minister of Public Works and Government Services is legally distinct from the office of the Minister responsible for CPC, even though the two offices were held, at the time of the access request, by the same individual.
[11] It is also argued in the applications that the Minister of Public Works and Government Services does not have any statutory responsibility for CPC, and that there is no necessity that the Minister of Public Works and Government Services also serve as the Minister responsible for CPC. Therefore, it is submitted that these are two distinct offices.
[12] The applicant suggests that the affidavit would serve as an example that the offices of the Minister responsible for CPC does not, at the same time, hold the office of Minister of Public Works and Government Services, thus showing that there is no necessary connection between the two offices, and accordingly that they are two distinct offices.
[13] Moreover, CPC contends that, at the time the access requests were submitted, the documents in question were in the possession of the Corporate Implementation Group, a component of a Federal Public Service. It is argued that the documents were held by that group on behalf of, or as agents for, the Minister responsible for CPC, an office not subject to the Act, and therefore not on behalf of the Minister of Public Works and Government Services, since it is a distinct office.
[14] CPC wants to use the supplementary affidavit because it is pertinent to understanding the functional relationship of the Corporate Implementation Group with the Minister responsible for CPC. In CPC's opinion, the supplementary affidavit would demonstrate that the role of this group is to support the Minister responsible for CPC, that the group is not an integral component of the Department of Public Works and Government Services Canada and finally that the group does not support the Minister of Public Works and Government Services.
THE PROTHONOTARY'S DECISION
[15] The Prothonotary denied the motion to file a supplementary affidavit on the grounds of relevance, based on the respondent's submission. The respondent had argued that since the issue before the Court was whether the requested records were under the control of the government institution at the time of the request, subsequent changes to the reporting structure of Canada Post are not relevant to the issue of control of the requested records. It was further argued and agreed to by the Prothonotary, that what is important and relevant is the reporting structure at the time of the request, not the reporting structure existing after the request is made.
ISSUE
[16] Is the Prothonotary's decision clearly wrong or did she err in applying the wrong principle, namely the test of relevance?
THE STANDARD OF REVIEW APPLICABLE TO THE APPEAL OF A DISCRETIONARY DECISION OF A PROTHONOTARY
[17] In Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 (F.C.A.), at paragraph 95, MacQuigan J.A., explained what was the standard of review to be applied by a motion Judge when reviewing a discretionary decision of a Prothonotary:
"Following a particular lord right in Evans v. Barkland [1937] A.C. 473 (H.L.) at page 484 and Lacourcière J.A. in Stoicevski v. Casement [1983] 43 O.R. (2 LD) 436 (DIV.CT) discretionary orders of Prothonotary ought not to be disturbed on appeal to a Judge unless:
a. they are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or a misapprehension of facts; or
b. they raised questions vital to the final issue of the case.
THE ANALYSIS
[18] In Eli Lilly & Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15, at pages 20-21 [order amended (1997), 77 C.P.R. (3d) 154 (T.D.)], this Court decided that when considering whether to allow a party to file a supplementary affidavit, it will usually consider the following factors:
"a. would it serve the interest of justice?;
b. would it assist the Court in making its final determination?; and
c. would it cause substantial or serious prejudice to the respondents [other parties]?"
[19] The factors established in Eli Lilly, supra, were followed by Judges of this Court. In Chopra v. Canada (Treasury Board)(1999), 168 F.T.R. 273 (F.C.T.D.) at paragraph 12, Dubé J. stated that in the specific context of filing additional affidavits:
"The tests of determining whether leave should be granted is whether it would serve the interest of justice, will assist the Court and will not cause serious or substantial prejudice to other parties. This Court has granted leave to file a reply affidavit where the other party could not have anticipated that the opposing party would introduce fresh evidence (Abbott Laboratories Ltd. v. Nu-Pharm Inc., [1997] F.C.J. No. 1658 (T.D.); Eli Lilly & Co. v. Apotex Inc. (1997), 137 F.T.R. 226 and Abbott Laboratories Ltd. v. Apotex Inc., [1997] F.C.J. No. 1659 (T.D.) at para. 7). In this case, the judicial review presiding judge, with the assistance of the reply affidavit and the cross-examinations, will be in a better position to determine whether or not the Associate Deputy Minister made the right decision."
[20] Furthermore, Judges of this Court generally had a reluctance to determine, at an interlocutory stage, the admissibility and weight to be given to new evidence. It was felt that the trial Judge would be in a better position. In Kirkbi AC v. Ritvik Holdings Inc.(1998), 142 F.T.R. 308 (F.C.T.D.) at paragraph 16, Muldoon J., referred to the analysis of Joyal J. in Figgie International Inc. v. Citiwide Machine Wholesale Inc. (1995), 60 C.P.R. (3d) 490 (F.C.T.D.), with approbation:
"My own overview of this kind of issue is that rarely will a court make an a priori ruling on admissibility. Except in cases of untimely affidavits, or of evidence which is obviously inadmissable, a court will not hazard a premature determination and will, as experience as [sic] amply shown, prefer to leave the matter to the trial judge."
[21] Having referred to these cases, I am of the opinion that the Prothonotary did not apply the proper test when assessing the evidence; the Eli Lilly factors should have been used. I believe that the Prothonotary's discretion was based on a wrong principle, and therefore a reviewable error of law occurred.
[22] Applying the three factors established in Eli Lilly, supra, in the present case, I consider the information contained in the supplementary affidavit is in the interest of justice because it permits the applicant to illustrate his argument and might facilitate a better understanding of it. I think, when possible, counsel should have all appropriate tools available to present their case.
[23] A close reading of the draft supplementary affidavit and its attachments enables me also to conclude that this new information will eventually be of some use to the trial Judge when making a final determination because it appears to exemplify the process of appointment and the accountability structure of CPC with its responsible Minister.
[24] Finally, there is no prejudice alleged by the respondent.
[25] Accordingly, the three factors have been met and the supplementary affidavit and its attachments should become part of both application records.
ORDER
THIS COURT ORDERS THAT:
- The decision of the Prothonotary dated November 8, 2002, be set aside.
- Leave is granted to the applicant to file the supplementary affidavit of Mr. Price in the two proceedings.
- This motion is granted without costs.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2117-00
STYLE OF CAUSE : Canada Post Corporation and
The Minister of Public Works and Government Services Canada and Peter Howard
PLACE OF HEARING : Ottawa, Ontario
DATE OF HEARING : December 12, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED : December 24, 2002
APPEARANCES :
Ronald D. Lunau FOR THE APPLICANT
Phuong T.V. Ngo
Christopher Rupar FOR THE RESPONDENT
SOLICITORS OF RECORD :
Gowling, Lafleur, Henderson FOR THE APPLICANT
Ottawa, Ontario
Department of Justice FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Keith E. W. Mitchell
Davis & Company FOR THE RESPONDENT
Vancouver, B.C.
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