Docket: A52814
Citation: 2016 FCA 42
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CORAM:
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NADON J.A.
PELLETIER J.A.
GAUTHIER J.A.
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BETWEEN:
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Violator No. 10
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Appellant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This appeal once again opposes Violator no. 10
(the Violator) to the Attorney General of Canada. The issue in dispute involves
the production of the documents. The Violator demands that certain documents be
returned to it, including some not utilized by the decider in rendering the
decision that is under appeal before the Federal Court. The Court ruled in
favour of the Violator with respect to some of these documents, but denied its
request regarding the others. The Violator asks this Court to grant it what the
Federal Court denied it.
[2]
Note that this dispute originated when the
Financial Transactions and Reports Analysis Centre of Canada (the Centre)
issued a Notice of Violation stating that the Violator had not complied with
certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, S.C. 2000, c. 17 (the Act). The Violator filed an appeal
with the Federal Court under Section 73.21 of the Act. In order to
complete its file in preparation for its defence, the Violator asked the Centre
to send it a number of documents, which the Centre had or might have in its
possession. The Centre responded, explaining why it believed that some of the
documents sought could be returned to the Violator while others could not
because some sensitive passages were redacted. There were discussions between
the parties, which significantly reduced the number of documents at issue. In a
letter dated September 25, 2013, the Violator demanded that certain documents
be sent to it. The Centre denied this request.
[3]
In response to that denial, the Violator brought
a motion for an order to produce the documents in its September 25, 2103 letter
as well as other documents that are no longer at issue. The Federal Court
denied the motion in decision 2014 FC 1089. It noted that Rule 317 of the Federal
Courts Rules, SOR/98106, on which the Violator based his motion, has a
limited scope. It applies only to the documents that were in the possession of
the decisionmaker when it rendered its decision and not in the possession of
the person making the request. The Federal Court recognized that it could order
a broader production in certain circumstances when the applicant alleges a
breach of procedural fairness. But in such a case, the onus is on the applicant
to produce evidence supporting that allegation. The Federal Court concluded
that the Violator had not met this burden, but had alleged only a breach of
procedural fairness. Furthermore, the discussions between the Violator and the
Centre, following its September 25, 2013 letter, suggest that the Violator
intended to challenge the Notice of Violation even if the Centre did not submit
to its motion to produce the documents. This undermined the Violator’s claims
that it was unable to defend itself properly without having access to these
documents.
[4]
The Violator raises two grounds of appeal before
this Court. It argues that an appeal under Section 73.21 of the Act is not
an application for judicial review, which favours a more generous production
under Rules 317 and 350. That argument was pleaded before the Federal
Court which did not accept it. Also, the Violator maintains that it met its
burden of proof with respect to demonstrating a breach of procedural fairness.
[5]
I am of the opinion that the Violator has failed
to show that this Court would be justified in intervening. I would consequently
dismiss the appeal with costs.
[6]
The first issue to be addressed is that of the
standard of review. The decision regarding the production of documents is a
discretionary one: BristolMyers Squibb Canada Co. v. Mylan
Pharmaceuticals ULC, 2011 FC 919, [2011] FCA no. 1201, at paragraph 6.
The standard of review of a discretionary decision was recently examined by a
panel of this Court in Turmel v. Her Majesty the Queen, 2016 FCA 9.
After having reviewed the different cases that have discussed with the issue
and the various formulas used to describe the standard of review, the Court concluded
that the case law holds that in the absence of an error of principle, the Court
cannot interfere unless there is an obvious, serious error that undercuts its
integrity and viability. This is, indeed the standard that this Court has applied
in interlocutory judgments, and it is the appropriate standard in this case.
That said, no matter how the applicable standard is worded, my decision would
be the same.
[7]
The first ground of appeal raised by the
Violator is that where a statutory appeal, like the one provided for in
Section 73.21 of the Act, favours a more ample production of documents
than the one provided under Rule 317 and the relevant case law. The Violator cites
some cases of the Federal Court where the Court refused to grant a broader
production on the ground that this production would turn the judicial review
into an appeal. In my opinion, the Violator incorrectly interpreted those cases.
[8]
All those cases involved a broader application
for production in the context of an application for judicial review. The Court
denied this application on the ground that it would transform the application
for judicial review, where only the legality of the decision is at issue, into
an appeal where the merit of the decision is at issue. The Violator is correct
in noting that there is a difference between an appeal and a judicial review
proceeding. However, he overlooks the fact that the case law holds that a
statutory appeal of an administrative tribunal decision should be similar to a
judicial review proceeding:
Where a court reviews a decision of a
specialized administrative tribunal, the standard of review must be determined
on the basis of administrative law principles. This is true regardless of
whether the review is conducted in the context of an application for judicial
review or of a statutory appeal (Association des
courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, [2008] 2 S.C.R. 195, at paras. 13 and 18-21; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 17, 21, 27 and 36; Law Society of New Brunswick v. Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 2 and 21; Canada (Deputy Minister of National Revenue) v. Mattel
Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at
para. 27).
Mouvement laïque québécois v. Saguenay
(City), 2015 SCC 16, [2015] 2 S.C.R. 3, at
paragraph 38.
[9]
In the state of the administrative law, there is
no difference between a judicial review proceeding and a statutory appeal. In
both cases, the Court shows deference, given the tribunal’s expertise, and does
not attempt to decide on its own whether the decision is well founded.
[10]
Although we sit on the Federal Court of Appeal,
the issue arises in the context of a statutory appeal from the decision
rendered by the Centre. This appeal is similar to a judicial review proceeding and
the rule governing the production of the documents is therefore the same as the
one that applies to judicial review proceeding. The Federal Court committed no
error in principle in concluding as it did.
[11]
The second ground of appeal submitted by the
Violator is that it discharged its burden of demonstrating that a broader
production of documents is required because the Centre violated its right to
procedural fairness. However, upon closer examination, the argument raised by
the Violator is based on circular reasoning:
[translation]
In its Notice of Appeal and its Motion, the
appellant specifically challenged the fairness of [the Centre’s] administrative
process and pointed to the absence of adequate disclosure, thereby invalidating
the decision. In the light of this breach of procedural fairness, the appellant
argued that it was entitled to the documents request in the September 25
letter...
The Memorandum of Fact and Law filed on
behalf of the appellant, at paragraph 58.
[12]
It is not because the Centre denied the Violator’s
motion for an order to produce the documents that the Violator’s right to
procedural fairness was infringed. It is incumbent upon the Violator to
demonstrate how the refusal to grant a broader production hinders its ability
to respond to the case against it. Asserting that a breach of procedural
fairness occurred does not constitute proof. I therefore agree with the Federal
Court’s finding that the Violator did not demonstrate the relevance of the
documents requested.
[13]
The irreducible fundamental difficulty which the
Violator is facing is very well expressed in its own Memorandum of Fact and Law
at paragraph 64:
[translation]
Beyond the allegations mentioned above, the
appellant could not provide other grounds to establish the relevance [of the
documents at issue] because it ignored and still ignores the content and/or
existence of the documents requested in its letter dated September 25, 2013.
[14]
A request for production of documents whose
existence and content are unknown amounts to a fishing expedition. Telus
Communications Company v. Canadian RadioTelevision and Telecommunications
Commission, 2009 FCA 255, the case which the Violator cites, is of no
assistance to the Violator. The controversy in this case was the uncertainty
regarding the approach taken by the CRTC in ruling on a dispute between the
Department of Public Works and Bell Canada. This Court ordered a broader
production to cast light on this approach. The facts in this case are
different.
[15]
The Violator is well aware of the approach taken
by the Centre. It does not agree with the conclusions drawn by the Centre
pursuant to this approach, but that, in itself, does not entitle the Violator
to a broader production than the one it has already received.
[16]
In my opinion, the Federal Court has not
committed an error in principle or an error that diminishes the integrity and
validity of its decision when it concluded that the Violator had not shown that
it was entitled to the production of the documents requested under
Rule 317.
[17]
I would consequently dismiss the appeal with
costs.
“J.D. Denis Pelletier”
“I agree.
Johanne Gauthier J.A.”
Certified true translation
François Brunet,
Revisor
JUDGE NADON (concurring reasons)
[18]
I entirely agree with the comments of my
colleague, Justice Pelletier, indicating that the appeal must be dismissed. I
also share his view that our Court must show deference since the Federal Court’s
decision is discretionary.
[19]
However, I cannot agree with my colleague when
he suggests that we adopt the standard recently set out in Turmel v. Canada (2016
FCA 9) [Turmel] on January 16, 2016, according to which, in the absence
of an error of principle, the Court cannot interfere unless there is “an obvious, serious error that undercuts its integrity and
viability” (reasons of the majority paragraph 6).
[20]
Prior to Turmel, our Court had since
April 20, 2015 followed the standard set out in Imperial Manufacturing Group
Inc. v. Decor Grates Incorporated, 2015 FCA 100, 472 N.R. 109 [Decor
Grates], i.e. the standard adopted by the Supreme Court of Canada in Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].
Consequently, our Court was required to review a judge’s discretionary decision
based on the standard of correctness with respect to questions of law, and
based on the standard of palpable and overriding error with respect to
questions of fact. For their part, questions of mixed fact and law were subject
to the palpable and overriding error standard of review, absent an isolated
error in law, in which case the standard of correctness applied.
[21]
It is important to note that on December 22,
2008, in Apotex Inc. v. AB Hassle, 2008 FCA 416 at paragraph 21,
[2008] FCA no. 1824 (QL) [Apotex], our Court unequivocally rejected the
contention that Housen applied to discretionary decisions. More
specifically, Madam Justice Sharlow, writing on behalf of the Court, stated the
following:
[21] Both parties argued that the standard
of review in this appeal is governed by Housen v. Nikolaisen, [2002] 2
S.C.R. 235. However, that case deals with the standard of review on the appeal
of the decision of a trial judge. It does not apply in this case, which
involves an appeal of the discretionary decision of a judge on a motion to set
aside a prohibition order on the basis of Rule 399 or the Federal Court’s
inherent continuing jurisdiction over injunctions and similar orders. This
Court will not reverse such a discretionary decision in the absence of an error
of law or a wrongful exercise of discretion in that no weight, or no sufficient
weight, was given to relevant considerations, or consideration was given to
irrelevant factors: Elders Grain Co. v. Ralph Misener (The) (C.A.),
[2005] 3 F.C.R. 367, at paragraph 13 [Elders Grain].
[22]
I note the fact that our decision in Elders
Grain, upon which Sharlow J. relied, made reference, in support of her
conclusion regarding the applicable standard in a discretionary decision, to
several Supreme Court decisions including Reza v. Canada [1994] 2 S.C.R.
394, at pages 404 and 405 [Reza].
[23]
Furthermore, despite extensive case law
regarding the applicable standard of review, the Supreme Court has never taken
a position in favour of a universal standard of review, i.e. a standard that
applies to a judge’s discretionary decisions, questions of fact, and questions
of mixed fact and law arising from a judgment at trial. Very recently, in Canadian
Imperial Bank of Commerce v. Green, 2015 SCC 60 at paragraph 95,
[2015] S.C.J. no. 60 (QL) [CIBC], the Supreme Court reiterated the
standard of review applicable to the discretionary decisions of a judge:
[95] I must now decide whether the
doctrine applies to the cases at bar. Before doing so, I should briefly outline
the applicable standard of review. The standard that ordinarily applies to a
judge’s discretionary decision on whether to grant an order nunc pro tunc
is that of deference: if the judge has given sufficient weight to all the
relevant considerations, an appellate court must defer to his or her exercise
of discretion (Reza v. Canada, [1994] 2 S.C.R. 394, at page 404).
However, if the judge’s discretion is exercised on the basis of an erroneous
principle, an appellate court is entitled to intervene: Soulos v.
Korkontzilas, [1997] 2 S.C.R. 217, at para. 54 [Soulos]. In CIBC,
Strathy J. found that he did not have jurisdiction to make the order nunc
pro tunc. It follows that he did not actually exercise any discretion, and
there is therefore no decision to defer to. But, even if he had done so, his
reasoning on whether the order should be granted nunc pro tunc was based
on an erroneous principle in that he conflated the doctrine of nunc pro tunc
with that of special circumstances and erroneously concluded that an order can
be made nunc pro tunc only in the event of a slip or oversight. His
decision is therefore not entitled to deference on appeal.
[24]
A nunc pro tunc order is but one of many
examples of a discretionary decision.
[25]
Before moving ahead, I hasten to add that in
this case, regardless of the standard that may apply, the result must be the
same, i.e. the dismissal of the appeal. As a result, I do not have to choose a
particular standard to determine the appeal.
[26]
I find this situation unacceptable in that the
parties and their counsel are entitled to know the standard that applies when
they appear before our Court. Since 2008, our Court has adopted three different
standards of review for discretionary decisions. The fact that the apparent
purpose of the new discretionary decision stated in Turmel is to summarize
the various ways of expressing deference with respect to discretionary
decisions, without however changing its meaning, does not seem to me a
satisfactory response, given that the three standards are not expressed exactly
the same way. Moreover, it is not clear to me that the new standard set out in Turmel
has the same meaning as those stated in Housen and Apotex.
[27]
There is also the question as to whether we are
bound by the Supreme Court’s decision in CIBC, which reasserts the
Supreme Court’s prior decisions in Reza and Soulos. As the
Supreme Court put it in Canada v. Craig 2012 SCC 473, we are bound to
follow its decisions.
[28]
In these circumstances, it seems to me that our
Court should consider holding a hearing before five judges to arrive at an answer
that will allow the parties to know the real standard that applies before this
Court.
“M. Nadon”
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