Docket: A-209-14
Citation: 2014 FCA 270
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CORAM:
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NOËL C.J.
GAUTHIER J.A.
SCOTT J.A.
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BETWEEN:
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THE PUBLIC SECTOR INTEGRITY COMMISSIONER
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Appellant (Respondent)
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and
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THE ATTORNEY GENERAL OF CANADA
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(Respondent)
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and
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SYLVAIN MARCHAND
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Respondent (Applicant)
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
In this appeal, the Public Sector Integrity
Commissioner (the Commissioner) is challenging a decision of Justice Annis
of the Federal Court dismissing his appeal from a decision of
Prothonotary Tabib while at the same time amending paragraphs 2 to 6 of
said order. The Commissioner is asking this Court to set aside the decision of
the judge and to allow his appeal from the prothonotary’s decision.
[2]
In her order regarding a motion by the applicant
pursuant to sections 317, 318 and 359 of the Federal Courts Rules, SOR/98-106
(the Rules), the prothonotary orders the Commissioner to disclose to the
parties’ counsel certain documents in his possession that were not before the
decision-maker (Order, paragraph 2) and provides that counsel shall not
divulge them to anyone, not even their clients, until otherwise ordered by the
Court (Order, paragraph 3). The prothonotary also establishes a process
for managing the case and the confidential information (Order,
paragraphs 4 and 5) and awards the Commissioner and the Attorney General
of Canada costs because the successful argument in favour of the disclosure
request [translation] “had not been raised in the motion record” (Order,
paragraph 6).
[3]
The issue before the prothonotary was not one
that was vital to the final issue of the application for judicial review. In
the circumstances, the judge could not vary the prothonotary’s order unless the
prothonotary’s “exercise of discretion was based upon a
wrong principle or a misapprehension of the facts” (Z. I. Pompey
Industrie v. ECU-Line, 2003 FC 27, [2003] 1 S.C.R. 450 at paragraph 18).
[4]
To obtain the disclosure of material that was
not before the Commissioner when he made his decision, the applicant had to
prove that the material sought is relevant within the meaning of Rule 317.
First, since as a general rule a judicial review case must be decided on the
basis of the information in the decision-maker’s possession at the time the
decision is made, the applicant had to raise in his request a ground of review
that would allow the Court to consider evidence that was not before the
Commissioner. These exceptions to the general rule are well settled by the case
law. In the present case, the only relevant exception was a breach of
procedural fairness, namely, the investigator’s purported bias, which had
allegedly tainted the entire investigation process. Second, the ground of
review had to have a factual basis supported by appropriate evidence, as
required (Access Information Agency Inc. v. Canada (Transports), 2007 FCA
224, [2007] F.C.J. No. 814, paragraphs 17 to 21). The second
criterion is particularly important because it prevents an applicant raising a
breach of procedural fairness simply to gain access to material that the
applicant could not otherwise access.
[5]
Before this Court and before the judge, the
Commissioner argued that the prothonotary did not apply this test. The
Commission further argued that the prothonotary erred, given that the relevance
of all the testimony is highly speculative and essentially came down to asking whether
the requested material [translation] “could reveal” bias in the conduct of the
investigation. The Commissioner adds that the prothonotary also failed to
consider the applicant’s true objective, as set out in his affidavit, which
states that this information was needed so that he could [translation] “challenge
the probative value and truth of the complaints filed against him”.
[6]
I gather from paragraphs 30 to 38 of the
judge’s reasons, which address what he describes as the first issue (2004 FC
329), that he concluded that, having regard to the applicable test, the
prothonotary had sufficient evidence in her possession to justify her decision
that the applicant was “entitled to an additional
disclosure on the basis of allegations of the investigator’s bias”. The Commissioner
has not persuaded me that the judge erred in reaching this conclusion. I do not
share the Commissioner’s fear that the prothonotary’s decision will throw the
door wide open to [translation] “fishing expeditions”. The highly specific nature of
the factual background in this case and the documents before the prothonotary
allowed the prothonotary to exercise her discretion as she did. This was not a
mere fishing expedition.
[7]
As for the issue of the applicant’s true
objective, neither the judge nor the prothonotary had addressed it, since
disclosing the additional information does not make otherwise inadmissible
evidence admissible. The general rule mentioned in paragraph 4 above
continues to apply with regard to evidence that the judge may consider. Therefore,
the trier of fact will not be permitted to consider the additional information
that will ultimately be included in the parties’ records in accordance with
Rules 309 and 310 except to decide whether there was a breach of
procedural fairness in this case.
[8]
As regards the relevance of all the testimony, this
issue can be dealt with through the process established by the prothonotary.
The Commissioner will have an opportunity to make submissions on this subject
at that time and ensure that the confidentiality of this information is
protected, as required.
[9]
Only the respondents appealed from the
prothonotary’s order, and they challenged the applicant’s right to disclosure
of the information sought. The applicant did not file a cross-appeal and is not
challenging the conditions set in paragraphs 2 to 6 of the order.
Therefore, having concluded that the prothonotary had not erred in ordering the
disclosure, the judge should have simply dismissed the appeal and referred the
entire matter back to the prothonotary so that she could vary her order so as
to include a new schedule.
[10]
The Commissioner submits that in addition to
having erred in varying paragraphs 2 to 6 of the prothonotary’s order
without these issues having been raised before him, the appeal judge also erred
in raising issues 2 and 3 (see paragraph 20 of the Reasons), which he used
to comment on the fundamental issues that would have to be decided by the trier
of fact and that were not argued by the parties before him. The Commissioner
also noted several examples of findings of fact made by the judge on the basis
of the certified record without giving the parties the opportunity to present
any relevant evidence on these subjects at this preliminary stage of the case.
[11]
The applicant agrees that the judge raised these
issues on his own initiative, but according to him, the judge did so to
expedite the case, since these fundamental issues will be relevant and the
judge’s comments will be helpful when the case is heard on the merits, if not
before.
[12]
In a very recent decision (R. v. Mian,
2014 SCC 54, [2014] S.C.J. No. 54 [Mian]), the Supreme Court of Canada
reminds us how and in what context a court of appeal may raise new grounds of
appeal or other issues on its own initiative. There is no need to review all
the arguments raised by the Commissioner in this regard. It is enough to
reiterate that when a court of appeal exercises its discretion to raise a new
issue and decide the matter on that basis, it must inform the parties of this
in a timely manner to allow them to make all their submissions (Mian,
paragraphs 54 to 59). The court of appeal must also be satisfied that
there is a sufficient basis in the record on which to resolve the issue (Mian,
paragraph 51) and that there would not be any procedural prejudice to
either party (Mian, paragraph 52).
[13]
I would add that it is often more prejudicial
than helpful to comment at the interlocutory stage on issues that will be
raised before the trier of fact, especially when, as in the present case, the
answers to these question will depend on the context and the facts that will
have to be established to the satisfaction of the trier of fact.
[14]
For these reasons, I am of the opinion that this
Court should intervene by setting aside the decision of the judge and rendering
the decision that should have been rendered, which is to dismiss the appeal
from the prothonotary’s order, with costs.
[15]
I would therefore allow the appeal in part.
Given the divided outcome, the parties should bear their own costs.
“Johanne Gauthier”
“I agree
Marc Noël C.J.”
“I agree
A.F. Scott J.A.
Certified true translation
François Brunet, Revisor
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