Date: 20081117
Docket: T-2032-07
Citation: 2008
FC 1281
Toronto,
Ontario, November, 17,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
DEER
LAKE REGIONAL AIRPORT AUTHORITY INC.
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, the Deer Lake
Regional Authority Inc., pursuant to Rule 51 of the Federal Court Rules,
S.O.R. /98-106 has appealed the Order of Prothonotary Morneau made on March 20,
2008, denying the Applicant’s request for materials made under Rule 317 of the Federal
Court Rules. The Applicant’s request for materials relates to its
application for judicial review of a decision by the Canadian Border Services
Agency (CBSA), as delegate of the Minister of Public Safety and Emergency
Preparedness, refusing to designate the Dear Lake Regional Airport as an Airport of Entry (AOE).
[2] For reasons that follow, I
conclude that the Applicant’s appeal of Prothonotary Morneau’s Order must be
dismissed.
I. Background
[3] The Applicant owns and operates
the aerodrome known as the Deer Lake
Regional Airport (the Airport) located at Deer
Lake in Newfoundland and Labrador. The Applicant sought to have
the Airport designated as an AOE in order to permit international flights to
land at the airport. The CBSA had approved the provision of customs services
for the Airport for one international flight arrival per week on a cost
recovery basis. The Applicant sought full AOE designation to enable more
frequent international flight arrivals at the airport.
[4] The CBSA has the
responsibility of providing customs office services at designated AOE airports.
The Minister of Public Safety and Emergency Preparedness (the Minister),
through his delegate, the CBSA, designates sites as customs offices. (Customs
Act s. 5) Persons entering Canada may do so only at a customs
office. (Customs Act s. 11) All international aircraft arriving in Canada must arrive at an AOE
airport. The level of customs services provided by CBSA at an AOE designation
varies but, essentially, an AOE designation for the Airport would enable more
frequent international flight arrivals.
[5] The Applicant applied for
reconsideration of its request for an AOE designation. On November 16, 2007,
Barbara Hébert, Vice President Operations Branch, CBSA, (as the Minister’s
delegate) wrote to the Applicant refusing the request to reconsider the Deer Lake Regional Airport as an AOE.
[6] On November 21, 2007, the
Applicant applied under Section 18.1 of the Federal Courts Act, R.S.C.
1985, c. F-7, for judicial review of the decision of Minister, seeking as
remedies:
(a)
a
declaration that the decision of the Minister, contained in the letter of the
Vice-President of the CBSA dated November 16, 2007, is void and of no effect;
and
(b)
an order
in the nature of mandamus requiring the Minister to designate the Deer Lake Regional Airport as an AOE, or, alternatively, to
reconsider the application based on rational criteria without discrimination
against the applicant.
[7] The Applicant’s grounds for
the judicial review application are:
“ . . . that the Minister failed to
observe procedural fairness, failed to comply with his implied duty to act
fairly in the exercise of statutory powers, and acted contrary to law in that:
(a)
the
Minister failed to establish any objective criteria which to elevate requests
for Airport of Entry status;
(b)
the
Minister failed to grant Airport
of Entry status despite the Airport
clearly meeting all of the criteria enunciated by the Respondent;
(c)
the
Minister has permitted airports, including airports in competition with the
Airport, to achieve or maintain Airport of Entry status notwithstanding that
such airports do not meet or have ceased, due to changes in circumstances, to
meet, the enunciated criteria to the same extent as the Airport does, thereby
discriminating against the Applicant;
(d)
the
Minister has added and re-allocated resources for the provision of customs
services to other airports so as to affect negatively the availability of
resources to serve the needs of the Airport as an Airport of Entry, thereby
discriminating against the Applicant;
(e)
the
Minister failed to provide any or adequate reasons for his failure to designate
the Airport as an Airport of entry;
(f)
that the
Minister has implemented a system for the designation of Airports of Entry
which produces results which bear no rational relationship to the purpose and
intent of the Customs Act and regulations thereunder.”
[8] The Applicant’s Notice of
Application for Judicial Review included a request for materials as follows:
1.
Documents
indicating what aerodromes in Canada have been designated as
Airports of Entry in the past 10 years;
2.
Application
documents, internal communications within the Department and the CBSA and all
correspondence to the Minister, anyone in the Minister’s office and the CBSA
relative to the designations identified in item 1 above;
3.
For each
of the Airports of Entry in the Provinces of Newfoundland and Labrador, Prince Edward Island, New Brunswick and Nova Scotia, provide:
(a)
copies of
the document designating the aerodrome as an Airport of Entry, including any
concurrent or subsequent document placing any limitation, condition or
restriction on the services offered at such aerodrome;
(b)
documents
indicating the number of travelers cleared at the Airport of Entry in each of the last five years;
(c)
documents
indicating the amounts charged to the aerodrome for special services in each of
the past five years, including a general description of the special services
provided;
(d)
any
document which affects or indicates a change in the services or hours of
service offered at the Airport
of Entry from
those stated on the CBSA website.
4.
Documents
indicating the amounts charged in each of the past five years for special
services and a general description of the services provided to the aerodromes
at Bathurst, NB, Churchill Falls, NL, Miramichi, NB and Wabush, NL.
[9] The Respondent filed a
Certified Record of documents which related to the Minister’s decision not to
designate the Airport as an AOE. The Respondent objected to the production of
the remainder materials as requested in the Applicant’s Notice of Application.
[10] On Court direction, representations were
filed by Applicant and Respondent and the matter came to Prothonotary Moreau
who issued his decision on March 20, 2008. The Prothonotary’s Order upheld the
objections of the Respondent and did not order further production except for an
unredacted version of one document to which both parties consented.
[11] The Applicant appeals the Prothonotary’s
Order dismissing the request for additional documents.
II. The Decision Under Appeal
[12] Prothonotary Morneau was satisfied that
the Certified Record was a complete record of all the documents that were
before the decision maker, Barbara Hébert, when she made the decision to deny
the reconsideration request for AOE status for the Airport.
[13] The Prothonotary found the Applicant’s
request for materials exceeded the parameters of a permissible Rule 317
request. He found that the Applicant was attempting to engage in a discovery
process not permissible with regard to the Federal Court of Appeal decision in Access
Information Agency Inc. v. Canada (Transport), 2007 FCA 224. The
Prothonotary considered the Applicant’s request could not be characterized as
an attempt to obtain specific documents that could have had bearing on the
decision under review. The Applicant had not justified a broadening of the
scope of Rule 317 exercise. Finally, the Prothonotary likened the Applicant’s
approach to the remarks made by Justice Blais in Bradley-Sharpe v. Royal
Bank of Canada, 2001 FCT 1130, “…The applicant’s purpose … is to scour for
any information within the file or files of the Commission because she is
dissatisfied or displeased with the decision of the Commission.”
[14] The Prothonotary upheld the Respondent’s
objections and ordered that no further material was required under Rule 317 and
318 with the exception of the one unredacted document.
III. Issues
[15] The issues in this appeal are:
1. What is the standard of review
on appeal from a Prothonotary’s Order determining the scope of production of
materials pursuant to Rule 317?
2. Did the Prothonotary err in
deciding the scope of production of materials pursuant to Rule 317?
IV. Applicant’s Submissions
[16] The Applicant submits that the issues
affecting a determination under Rule 317 are possession and relevance. The
Applicant submits that the issue of relevance is one of law, and thus the
standard of review is correctness.
[17] In the alternative, should there be an
element of discretion in the making of the Prothonotary’s Order; the Applicant
submits that the Rule 317 determination raises questions vital to the final
issue in this case. The Applicant further submits that the learned Prothonotary
is clearly wrong in that the decision is based on both the application of an
incorrect test or a misapprehension of fact. The Applicant submits that the
Court must approach the application of Rule 317 in this case de novo.
[18] The Applicant’s argument is difficult to
follow. The argument, as I understand it, is as follows:
[19] In determining whether material ought to
be disclosed on a Rule 317 motion, the prothonotary must embark on a two stage
inquiry. The first is possession, the second is relevance. Friends of the
West Country Assn. v. Canada (Minister of Fisheries and
Oceans),
[1997] F.C.J. No. 557.
[20] First, the prothonotary must be satisfied
the material was available to the decision maker. The material need not be
limited to the material relied on by the decision maker, rather it is the
material that was or should have been available to the decision maker. Further,
where an applicant alleges lack of procedural fairness and consideration of
irrelevant factors in a judicial review application, the applicant is entitled
to all material that may have affected the outcome of the decision. Gagliano
v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising
Activities – Gomery Commission), 2006
FC 720; Deh
Cho First Nations v. Canada (Minister of the Environment), 2005 FC 374; Friends of West Country; and
Telus Communications Inc. v. Canada (Attorney General), 2004 FCA 317.
[21] The Applicant argues that where the
decision maker plays a dual role of information gatherer and decision maker the
material required to be produced under Rule 317 goes beyond just the material
before the decision maker. The materials to be produced should be bound only by
relevance to the applicant, and in possession of the decision maker in the
broad sense of constructive possession. Friends of West Country, and Pathak
v. Canada (Human Rights Commission)(re Royal Bank of Canada), [1995] 2 F.C. 455 (CA).
[22] Second, if the prothonotary is satisfied
that the material was available to the decision maker, then he or she must
consider whether the material is relevant in that it could affect the decision
of the reviewing court with regard to the grounds of review in the judicial
review application.
[23] If the applicant alleges a breach of
procedural fairness, the reviewing court will also determine the relevance of
the materials requested by reference to the grounds for review in the judicial
review application.
[24] The Applicant submits that the prothonotary
failed to embark on the above two stage inquiry by failing to turn his mind to
whether the documents were available to the decision maker and whether the
requested material may have otherwise affected the reviewing court even though
the materials may not have necessarily been before it.
[25] The Applicant submits that the prothonotary
misapprehended the significance of the material concerning other AOE’s in the
possession of the CBSA. The Applicant argues that since the CBSA was both
information gatherer and decision maker, with no line of division that
separates the information held by the CBSA and the information before the
decision maker that the CBSA must have made its decision in the context of all
the information it possessed concerning other AOE designations.
[26] The Applicant also submits that the prothonotary
had to deal with the issue of procedural fairness. The CBSA has an implied duty
to act fairly in the exercise of its statutory powers. Given the lack of a
definition of an AOE, the lack of established criteria for AOE designations, and
the suitability of the Airport for international flights, the comparative data
must have been vital to the decision. Therefore, the information relative to
other airports is necessarily part of the CBSA’s consideration and should be
required to be produced pursuant to Rule 317.
V. Analysis
[27] Rule 317 states:
317. (1) a party may request material
relevant to an application that is in the possession of a tribunal whose order
is the subject of the application and not in the possession of the party by
serving on the tribunal and filing a written request, identifying the material
requested.(underlining added)
[28] The purpose of Rule 317 production was
discussed in Access. Justice Pelletier stated at paragraph 21:
“It is in this context that we find section 317 of the Rules
dealing with the request for disclosure of material. The purpose of the rule is
to limit discovery to documents which were in the hands of the decision-maker
when the decision was made and which were not in the possession of the person
making the request and to require that the requested documents be described in
a precise manner.”
[29] While the authority on the production of
documents in judicial review applications generally holds that only documents
that are actually before the decision maker are subject to production, in Access
at paragraph 7, some specific exceptions to the Rule 317 limit have been
recognized.
[30] In Pathak, Justice Pratte stated
that documents are relevant for the purposes of Rule 317 if they may affect the
decision of the reviewing court. He decided that only the documents that were
actually before the decision maker had to be produced but not other documents
relied upon by the investigator unless inaccurately summarized in any report.
[31] In Friends of the West Country,
Justice Muldoon departed from the general rule in Pathak and held that
the test for relevancy is how a document relates to the grounds in the application
for judicial review. A document may be relevant even if not relied upon or considered
by the decision maker. Justice Muldoon departed from the general rule in Pathak
because the Minister had a supervisory role with no distinction between the
investigation and the decision making stages. However, the broad scope of
production in Friends of the West Country has not been applied in
subsequent cases.
[32] In 118540 Ontario Ltd. v. Canada
(Minister of Natural Resources), [1999] F.C.J. No. 1432, Justice Sexton of
the Federal Court of Appeal followed Pathak and found that only
documents actually before the decision maker had to be produced, but held that
if attachments to a document were also before the decision maker, they should
also be produced.
[33] In Telus, Justice Linden held that
the material before the Board ought to be produced. He departed from the view
of Chief Justice Thurlow in Trans Quebec & Maritime Pipeline v. National
Energy Board, [1984] 2 F.C. 432, that while staff memoranda containing
evidence should be disclosed, memoranda which did not contain evidence were irrelevant to a board’s decision. Justice
Linden decided that the material should be produced because the Board’s reasons
were skimpy and did not disclose all the considerations taken into account.
[34] In Deh Cho, the applicants sought
judicial review of the Minister’s decision to establish a Joint Review Panel. Prothonotary
Hargrave found, on affidavit evidence, that the Minister, his predecessors in
office, and staff, had supervised the process leading to the decision. Prothonotary
Hargrave decided that the descriptions of the documents sought came close to being overly general but
did not cross the line because the documents requested were in relation to
specific steps or phases in the process leading to the Minister’s decision.
[35] In Gagliano, Justice Teitelbaum
stated that when a party alleges a breach of procedural fairness, the Court
still determines relevancy of the materials by reference to the notice of
application for judicial review, the grounds of review, and the nature of
judicial review. The materials at issue involved specific unsolicited emails
sent to the Commission. The Commission had acknowledged the existence of
materials not on the public record but had specifically stated that they were
not taken into cognizance in writing its Phase I Report. Justice Teitelbaum was
of the view that the possible use of the emails by the Commission may pose questions
of procedural fairness. The emails were relevant in respect of the issues of
procedural fairness and reasonable apprehension of bias and therefore were
required to be produced. On appeal, Justice Décary, of the Federal Court of
Appeal, held there were enough elements on the record to justify a perception
that the Commissioner was aware of the materials and thus the materials in
issue should be left to the reviewing court to assess.
What
is the standard of review on appeal from a Prothonotary’s Order determining the
scope of production of materials pursuant to Rule 317?
[36]
The
standard of review of on an appeal of a Rule 51 appeal from a prothonotary’s
order was stated by Justice Décary of the Federal Court of Appeal in Merck
& Co. v. Apotex Inc., 2003 FCA 488, at paragraph 19:
Discretionary orders of prothonotaries
ought not to be disturbed on appeal to a Judge unless:
a) the questions raised in
the motion are vital to the final issue of the case, or
b) the orders are clearly
wrong, in the sense that the exercise of discretion by a prothonotary was based
on a wrong principle or upon a misapprehension of the facts.
[37] Justice Snider, in Gaudes v. Canada (Attorney General), 2005 FC 351, found that the
decision of a prothonotary concerning a request for documents was not a matter
vital to any final issue. On the facts of this appeal, I see no reason here to
depart from Justice Snider’s conclusion. Therefore, I conclude that this
matter is not vital to the final issue, and accordingly, the Prothonotary’s
Order should be assessed on whether the order is clearly wrong: as set out in the
second part of the test in Merck.
Did the Prothonotary err in deciding the
scope of production of materials pursuant to Rule 317?
[38] The Prothonotary found that all material
facts were before the decision maker. He found that the Applicant’s request
for documents exceeded the permissible bounds of Rule 317 and relied on Access
for his interpretation of the bounds of Rule 317.
[39] I cannot fault with the Prothonotary’s
interpretation of Rule 317.
[40] The Applicant argued that when there is
no separation of investigative and decision making stages, the scope of
production of materials under Rule 317 should increase. This was their
strongest argument. However, Friends of the West, being a singular case which
has not been followed, does not help the Applicant. Furthermore, Deh Cho
referred to Friends of West Country but only to extend the scope of
materials to those leading to the decision.
[41] My reading of the Applicant’s Notice of
Application and Affidavit leads me to conclude that the Applicant is requesting
materials at best surrounding, but not leading to, the decision. I do not see
any error on the part of the Prothonotary in his reasoning.
[42] The Applicant submitted that the
Prothonotary did not turn his mind to the question of relevance as he was
obligated to do given that the Applicant alleged procedural unfairness.
[43] I find that neither the Applicant’s
Notice of Application nor Affidavit link the request for additional materials
to a claim of procedural unfairness and the failure to act fairly in the making
of the decision. The only specific ground in the Notice of Application that
relates to procedural unfairness is the claim that the CBSA’s reasons were
insufficient and consideration of that ground does not require the production
of further materials.
[44] I find that the Prothonotary did not err
in deciding that the Applicant had not brought itself within the exceptions
that exist to the general rule of production in Access.
[45] The Applicant is not only challenging the
decision to refuse its application for AOE designation; it is also challenging
CBSA’s system of designating AOE’s. In its submissions, the Applicant stated:
“This Application challenges the system
whereby Airports of Entry are designated and alleges it is substantially unfair
and arbitrary. These are valid grounds for attack on the decision and, in
order to rule on those grounds, the reviewing Court needs to access information
as to how competing facilities having been treated and whether CBSA has taken
into account all of the appropriate factors that it ought to take into account
in making its determination.”
[46] The Applicant was dissatisfied with the
CBSA’s decision. It chose to challenge the CBSA’s decision making process
instead of limiting its challenge to the CBSA decision. It chose to commence a
judicial review instead of commencing an action.
[47] In Access, Justice Pelletier
discussed the nature of judicial review. He stated:
“Judicial review does not proceed on the
same basis as an action; it is a procedure that is meant to be summary. There
is therefore a series of limits on the parties as a result of this
distinction. Evidence is brought by affidavit and not by oral testimony.
There is less leeway for preliminary procedures such as discovery of evidence
in the hands of the parties and examination on discovery. If such proceedings
do prove to be necessary, the Rules provide that a judicial review may be
transformed into an action.” (para. 20)
[48] Given the broad sweep of the Applicant’s
challenge to the CBSA decision making process on AOE designations, this
teaching of the Federal Court of Appeal is appropriate.
[49] The Applicant’s appeal of the
Prothonotary’s Order is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The Appeal
from the Order of Prothonotary Morneau, dated March 20, 2008, is dismissed.
2.
Costs of
this motion are awarded to the Respondent in any event of the cause.
"Leonard
S. Mandamin"
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