Docket: A-39-16
Citation: 2016 FCA 103
Present: STRATAS
J.A.
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BETWEEN:
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DR. GáBOR LUKáCS
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Applicant
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and
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CANADIAN
TRANSPORTATION AGENCY
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Respondent
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REASONS
FOR ORDER
STRATAS J.A.
[1]
The parties are
working to perfect this application for judicial review. The applicant has
requested under Rule 317 that the respondent Agency transmit the record it
relied upon when making its decisions that are the subject of the application.
In response, the Agency has objected under Rule 318(2) to disclosure of some of
the record and has informed the applicant and the Court of the reasons for the
objection.
[2]
Under Rule 318(3),
the applicant now requests directions as to the procedure for making
submissions on the objection.
[3]
The Court has read
the Agency’s reasons for objection. Although unnecessary under Rule 318, the
applicant has supplied his responses to the Agency’s reasons.
[4]
A reading of the
parties’ reasons and responses shows that they may not have a clear idea of the
relationship between Rules 317 and 318 and the Court’s remedial flexibility in
this area. This affects the submissions on the objection that this Court will
need. Before giving directions concerning the steps the parties need to take
concerning the objection, it is necessary to clarify matters.
A.
Rules 317-318 and the Court’s remedial
flexibility
[5]
Rules 317-318 do
not sit in isolation. Behind them is a common law backdrop and other Rules that
describe how the record of the administrative decision-maker can be placed
before a reviewing court. This was all explained in Canadian
Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268 at paras. 7-18 and will not be repeated here. On
admissibility of evidence before the reviewing court on judicial review, see,
most recently, Bernard v. Canada (Revenue Agency), 2015 FCA 263.
[6]
Under Rule 317, a party can request from the administrative
decision-maker material relevant to the application for judicial review. Under Rule 318, the requesting party is
entitled to be sent everything that it does not have in its possession and that
was before the decision-maker at the time it made the decision under review,
unless the decision-maker objects under Rule 318(2): Access Information
Agency Inc. v. Canada (Attorney General), 2007 FCA 224, 66 Admin. L.R. (4th) 83 at para. 7; 1185740 Ontario Ltd. v. Canada (Minister of National Revenue (1999), 247 N.R. 287 (F C.A.). The Saskatchewan Court of Appeal set out the guiding principle
on this entitlement rather well:
In order to effectively pursue their rights to challenge administrative
decisions from a reasonableness perspective, the applicants in judicial review
proceedings must be entitled to have the reviewing court consider the evidence
presented to the tribunal in question [absent well-founded objection by the
tribunal].
(Hartwig v. Commission of Inquiry into matters relating to
the death of Neil Stonechild, 2007 SKCA 74, 284 D.L.R. (4th) 268 at para.
24.)
[7]
This passage
recognizes the relationship between the record before the reviewing court and
the reviewing court’s ability to review what the administrative decision-maker
has done. If the reviewing court does not have evidence of what the tribunal
has done or relied upon, the reviewing court may not be able to detect
reversible error on the part of the administrative decision-maker. In other
words, an inadequate evidentiary record before the reviewing court can immunize
the administrative decision-maker from review on certain grounds. Our
judge-made law in the area of administrative law develops in a way that
furthers the accountability of public decision-makers in their decision-making
and avoids immunization, absent the most compelling reasons: Slansky v. Canada (Attorney General),
2013 FCA 199, 364 D.L.R. (4th) 112 at paras.
314-15 (dissenting reasons, but not opposed on this
point).
[8]
Now to objections under Rule 318(2). Where the
relevant administrative decision-maker, here the Agency, objects under Rule
318(2) to disclosing some or all of the material requested under Rule 317 and
the applicant does not dispute the objection, then the material is not
transmitted. However, if, as here, the applicant disputes the objection, either
the applicant or the administrative decision-maker may ask the Court for
directions as to how the objection should be litigated: see Rule 318(3).
[9]
In response to a request for directions, the
Court may determine that the objection cannot succeed solely on the basis of
the reasons given by the administrative decision-maker under Rule 318(2). In
that case, it may summarily dismiss the objection and require the
administrative decision-maker to transmit the material under Rule 318(1) within
a particular period of time.
[10]
In cases where the Rule 318(2) objection might
have some merit, the Court can ask for submissions from the parties on a set
schedule. But sometimes the Court will need more than submissions: in some
cases, there will be real doubt and complexity and sometimes evidence will have
to be filed by the parties to support or contest the objection. In cases like
these, the Court may require the administrative decision-maker to proceed by
way of a written motion under Rule 369. That Rule provides for motion records,
responding motion records and replies, and also the deadlines for filing those
documents. The motion records require supporting affidavits and written
representations.
[11]
Regardless of the manner in which the Court
proceeds, when determining the validity of an objection under Rule 318(2) what
standpoint should it adopt? Is the Court reviewing the administrative
decision-maker’s decision to object?
[12]
No. When determining the validity of an
objection, the Court is tasked with deciding the content of the evidentiary record in the
proceeding—the application for judicial review—before it. Like all proceedings
before the Court, it must consider what evidence is admissible before it. The
Court, regulating its own proceedings, must apply its own standards and not
defer to the administrative decision-maker’s view. See Slansky, above at
para. 274. (Much of the discussion that follows is based on Slansky.)
[13]
What can the Court
do when determining the validity of an objection? Quite a bit. There is
much remedial flexibility. The Court can do more than just accept or reject the
administrative decision-maker’s objection to disclosure of material. It is not
an all-or-nothing proposition.
[14]
In this regard,
Rule 318 should not been seen in isolation. Other rules and powers inform and
assist the Court in determining an objection. For example:
•
Rules 151 and 152 allow for material before the
reviewing court to be sealed where confidentiality interests established on the
evidence outweigh the substantial public interest in openness: Sierra Club
of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R.
522.
•
Rule 53 allows terms to be attached to any order
and Rule 55 allows the Court to vary a rule or dispense with compliance with a
Rule. The exercise of these discretionary powers is informed by the objective
in Rule 3 (recently given further impetus by the Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1
S.C.R. 87): to “secure the just, most expeditious and least expensive determination
of every proceedings on its merits.” It is also
informed by s. 18.4 of the Federal Courts Act, R.S.C. 1985, c. F-7: “an application shall be heard and
determined without delay and in a summary way.”
•
The Court can draw upon its plenary powers in
the area of supervision of tribunals to craft procedures to achieve certain
legitimate objectives in specific cases: Canada (Human Rights
Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, 157 D.L.R. (4th)
385 at paras. 35-38; M.N.R. v. Derakhshani, 2009 FCA 190, 400 N.R. 311
at paras. 10-11; Canada (National Revenue) v. RBC Life Insurance
Company, 2013 FCA 50, 443 N.R. 378 at paras. 35-36.
[15]
These Rules and
powers allow the Court determining a Rule 318 objection to do more than just
uphold or reject the administrative decision-maker’s objection to disclosure of
material. The Court may craft a remedy that furthers and reconciles, as much as
possible, three objectives: (1) meaningful review of administrative decisions
in accordance with Rule 3 and s. 18.4 of the Federal
Courts Act and the principles discussed at paras. 6-7 above; (2) procedural fairness; and (3) the protection
of any legitimate confidentiality interests while permitting as much openness
as possible in accordance with the Supreme Court’s principles in Sierra Club.
[16]
Where there is a
valid confidentiality interest that could sustain an objection against
inclusion of a document into the record, the Court must ask itself, “Confidential from whom?” Perhaps the general public cannot
access the confidential material, but the applicant and the Court can, perhaps
with conditions attached. Perhaps the only party that can access the
confidential material is the Court, but a benign summary of the material might
have to be prepared and filed to further meaningful review, as much procedural
fairness as possible, and openness. In other cases, the objection may be such
that confidentiality must be upheld absolutely against all, including the
Court. Legal professional privilege is an example of this.
[17]
And the fact that
part of a document may be confidential does not necessarily mean that the whole
document must be excluded from the record. The Court must consider whether
deleting or obscuring the confidential parts of a document is enough or whether
the entire document should be excluded from the record.
[18]
In short, the
Court’s determination of the Rule 318(2) objection—a determination aimed at
furthering and reconciling, as much as possible, the three objectives set out
in para. 15, above—can result in an order of any shape and size, limited only
by the creativity and imagination of counsel and courts: see, for example, the
creative and detailed sealing order made in Health Services and
Support-Facilities Subsector Bargaining Association v. British Columbia,
2002 BCSC 1509, 8 B.C.L.R. (4th) 281.
B.
The directions to be given in this case
[19]
In some cases, the Court might be able to
determine an administrative decision-maker’s Rule 318(2) objection solely on
the basis of the reasons the decision-maker has provided under Rule 318(2).
This case—a complex one requiring evidence to establish the objection—is not
one of those cases. Thus, in the circumstances of this case, the Agency should
file a motion record under Rule 369 seeking an order vindicating its objection.
[20]
Without limiting whatever other relief the
Agency might wish to seek, the Agency must address, both in its evidence and in
written representations, the requirements for confidentiality and the test set
out in Sierra Club.
[21]
The Agency should be specific in its motion
record concerning the type of order it wants. In doing so, it should have
regard to the above discussion—in particular, the remedial flexibility the
Court possesses and the Court’s desire to craft a remedy that furthers and reconciles, as
much as possible, the three objectives set out in para. 15, above.
[22]
The Agency shall
file its motion under Rule 369 within ten days of today’s date and then the
times set out under Rule 369 shall follow for the respondent’s responding
record and the reply. The Registry shall forward the motion to me for
determination immediately after the reply has been filed or the time for reply
has expired, whichever is first. An order shall go to this effect.
[23]
To the extent the
Agency wishes part of its motion record to be sealed under Rules 151-152, the
Agency should request that in its notice of motion and support its request with
evidence. Any confidential material may then be included in a confidential
volume within a sealed envelope, filed only with the Court. At the time of
determining the motion, the Court will review the material and assess whether
further submissions on this point are needed from the applicant or whether the
claim of confidentiality is made out.
[24]
The parties have
agreed to expedite this matter. The Court agrees that expedition is warranted
and, following the motion, will schedule the remaining steps in this
application. The parties should immediately discuss an expedited schedule on
the footing that the motion will be determined by the end of April at the
latest. The parties should also consider whether the application should be
heard as soon as possible by videoconference rather than waiting for the
Court’s next sittings in Halifax after April. The parties shall make their
submissions on these matters in their written representations in their motion
records.
[25]
The parties are
also encouraged to engage in discussions to try to settle the record that
should be placed before this Court in this application. Through their agreement
to expedite this matter, the parties now recognize that there is a public
interest in expedition. Quick agreement on this issue will speed this matter
considerably. One possibility is to agree that the matter proceed with a public
record and a sealed disputed record and the admissibility of the disputed
record can be argued before the Court hearing the application, if necessary
with affidavits filed in the parties’
respective
records for the purpose of resolving the dispute. If the parties truly
recognize there is a public interest in expedition, then this is probably the
best way to proceed.
“David Stratas”
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