Dockets:
A-78-17 (lead file); A-217-16; A-218-16;
A-223-16;
A-224-16; A-225-16; A-232-16;
A-68-17;
A-73-17; A-74-17; A-75-17;
A-76-17; A-77-17; A-84-17;
A-86-17
Citation:
2017 FCA 128
Present: STRATAS
J.A.
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BETWEEN:
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TSLEIL-WAUTUTH NATION, CITY OF
VANCOUVER, CITY OF BURNABY, THE SQUAMISH NATION (also known as the SQUAMISH
INDIAN BAND), XÀLEK/SEKYÚ SIÝ AM, CHIEF IAN CAMPBELL on his own behalf
and on behalf of all members of the Squamish Nation, COLDWATER INDIAN BAND,
CHIEF LEE SPAHAN in his capacity as Chief of the Coldwater Band on behalf of
all members of the Coldwater Band, MUSQUEAM INDIAN BAND, AITCHELITZ,
SKOWKALE, SHXWHÁ:Y VILLAGE, SOOWAHLIE, SQUIALA FIRST NATION, TZEACHTEN,
YAKWEAKWIOOSE, SKWAH, KWAW-KWAW-APILT, CHIEF DAVID JIMMIE on his own behalf
and on behalf of all members of the TS’ELXWÉYEQW TRIBE, UPPER NICOLA BAND,
CHIEF RON IGNACE and CHIEF FRED SEYMOUR on their own behalf and on behalf of
all other members of the STK’EMLUPSEMC TE SECWEPEMC of the SECWEPEMC NATION,
RAINCOAST CONSERVATION FOUNDATION and LIVING OCEANS SOCIETY
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA, NATIONAL ENERGY BOARD and TRANS MOUNTAIN PIPELINE ULC
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Respondents
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and
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ATTORNEY GENERAL OF ALBERTA
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Intervener
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REASONS
FOR ORDER
STRATAS J.A.
A.
Introduction
[1]
There are two motions before
the Court:
•
The June 2, 2017 motion
of the applicant, the Tsleil-Waututh Nation. It objects to the inadequate
state of the evidentiary record placed before the Court in these consolidated
applications for judicial review. Among other things, it seeks production of
relevant documents from Canada.
•
The June 6, 2017 motion of the Attorney
General of Canada. The
Attorney General seeks leave to add a supplementary affidavit to the
evidentiary record. The supplementary affidavit corrects errors and omissions
in an earlier affidavit.
B.
The judicial review proceedings before the Court
[2]
Before the Court are fifteen
applications for judicial review, now consolidated, in which, collectively,
twenty-seven parties seek to quash certain administrative decisions approving
the Trans Mountain Expansion Project. The decisions are a Report dated May 19,
2016 by the National Energy Board, purportedly acting under section 52 of the National
Energy Board Act, R.S.C. 1985, c. N-7 and the Order in Council, PC
2016-1069, dated November 29, 2016 and made by the Governor in Council. It can
be found in the Canada Gazette, Part I, vol. 150, no. 50, December 10,
2016.
[3]
In brief, the Project—the capital cost of which
is $7.4 billion—adds new pipeline, in part through new rights of way, thereby
expanding the existing 1,150-kilometre pipeline that runs roughly from
Edmonton, Alberta to Burnaby, British Columbia. The Project also entails the
construction of new works such as pump stations and tanks and the expansion of
an existing marine terminal. The immediate effect will be to increase capacity
from 300,000 barrels per day to 890,000 barrels per day.
[4]
The applicants challenge the administrative
approvals on a number of grounds. In support of their challenges, the applicants
invoke administrative law and relevant statutory law. The Indigenous applicants
also invoke section 35 of the Constitution Act, 1982 and associated case
law concerning the obligations owed to them, including Canada’s duty to consult
and, in some cases, to accommodate. The applicants also raise many issues
concerning the Project’s “environmental
effects,” as defined by section 5 of the Canadian
Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52.
[5]
These consolidated applications have been progressing
quickly. In the space of roughly three months, counsel have worked hard getting
the matter ready for hearing, guided by 3 sets of detailed reasons, 8 orders
and 14 directions (including the reasons and order on these motions). The
hearing will take place in early October, 2017.
C.
The motion of the Attorney General of Canada
[6]
In response to the
applications for judicial review and several affidavits filed in support of the
applications, the Attorney General filed an affidavit of Mr. Gardiner. The aim
of his affidavit is to supply evidence concerning what has taken place
concerning the duty to consult and accommodate Indigenous groups.
[7]
Mr. Gardiner has now sworn a supplementary
affidavit to correct dates in his original affidavit and supply missing
records. The errors and omissions are said to be inadvertent.
[8]
The Attorney General of Canada now moves for
leave to file the supplementary affidavit. Trans Mountain consents.
[9]
The Indigenous applicants either take no
position or do not oppose the Attorney General’s motion. However, four Indigenous
applicants noted that portions of the supplementary affidavit were irrelevant
to the consolidated applications. The Attorney General has agreed to remove the
irrelevant portions.
[10]
The authority for allowing a party to file an
additional affidavit on judicial review is Rule 312 of the Federal Courts
Rules, SOR/98-106. The Rule
merely permits such a filing with leave of the Court. It does not set out any
criteria for the granting of that leave.
[11]
However, case law under Rule
312 assists. Additional affidavits are permitted only where it is “in the interests of justice”: Atlantic Engraving Ltd. v. LaPointe
Rosenstein, 2002 FCA 503, 299 N.R. 244 at paras. 8-9. The case law shows
that the Court must have regard to whether:
•
the evidence will assist the
court (in particular, its relevance and sufficient probative value);
•
admitting the evidence will
cause substantial or serious prejudice to the other side;
•
the evidence was available
when the party filed its affidavits or it could have been discovered with the
exercise of due diligence.
(Holy Alpha &
Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101, 392
N.R. 248 at para. 2; Forest Ethics Advocacy Assn. v. National Energy Board,
2014 FCA 88 at para. 6; House of Gwasslaam v. Canada (Minister of Fisheries
& Oceans), 2009 FCA 25, 387 N.R. 179 at para 4.) I note that this Court
has applied these same factors in deciding whether a reply affidavit should be
permitted to be filed in an application for leave to appeal under Rule 355, a
rule that, like Rule 369(3), does not explicitly allow reply affidavits: Quarmby
v. National Energy Board of Canada, 2015 FCA 19.
[12]
On balance, these factors
lie in favour of admitting Mr. Gardiner’s supplementary affidavit into these
consolidated applications.
[13]
The dominant consideration underlying my
exercise of discretion is that a fuller and more accurate record will promote
the proper determination of the applications on their merits, consistent with
Rule 3 of the Federal Courts Rules. Rule 3 provides that the Rules “shall be interpreted and applied so as to
secure the just, most expeditious and least expensive determination of every
proceeding on its merits.”
[14]
The applicants have offered no evidence of
prejudice and, in fact, do not oppose. Cross-examinations of Mr. Gardiner have
not yet taken place. Corrections of errors and the supplementing of information
likely would have taken place at those cross-examinations anyway. The Court
will also be open to an extension of the period for cross-examinations should
the applicants request it, as long as the consolidated applications are ready
for hearing on the date set by the Court.
[15]
No doubt more complete and more accurate
information was available earlier and ideally should have appeared in Mr.
Gardiner’s first affidavit. This motion could have been brought sooner but it
was delayed by Mr. Gardiner’s absence from Canada. The Attorney General has
brought this motion just before cross-examinations were to start. The delay is
unfortunate—especially since this Court’s Order of March 9, 2017 expedites
these proceedings, sets a strict schedule, and warns all parties that “the schedule will be amended only if
absolutely necessary.” But the Attorney
General’s motion does not materially affect the progress of these proceedings.
[16]
Thus, leave shall be granted to admit Mr.
Gardiner’s supplementary affidavit (with the irrelevant portions removed) into
these proceedings.
D.
The motion of the Tsleil-Waututh Nation
(1)
Introduction
[17]
The Tsleil-Waututh Nation
has moved for an order to address what it says are serious deficiencies in the
evidentiary record before this Court. The Indigenous applicants support the
Tsleil-Waututh Nation.
[18]
The Tsleil-Waututh Nation
says that a request for disclosure under Rule 317 Federal
Courts Rules has gone
unfulfilled. It also says that the materials that the Governor in Council
relied upon in making its decision to approve the Trans Mountain Extension
Project are not all before the Court. And, more generally, it says that more
evidence is in the possession of Canada and should be produced.
[19]
Mixed in with its motion are issues concerning
section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the
provision that allows Canada to assert that certain information considered by
the Governor in Council, commonly called the Cabinet, cannot be disclosed.
Canada issued a section 39 certificate here. As we shall see, it also did this in
the recent successful challenge in this Court to the Northern Gateway Pipeline
Project: Gitxaala Nation v. Canada, 2016 FCA 187 (“Gitxaala Nation
(2016)”). As a result, certain information the Governor in Council considered
in making its decision will not be placed before the Court.
(2)
The issues before the Court
[20]
The motion brought by the
Tsleil-Waututh Nation raises several issues concerning the record before the
reviewing court in judicial review proceedings:
•
The sufficiency of Canada’s certificate
under section 39 of the Canada Evidence Act and the effect of the
certificate, which is to prohibit any disclosure of the evidence considered by
the Governor in Council to the parties and to the reviewing court.
•
The importance and role of
the record before the reviewing court.
•
The function and limits of Rule
317 of the Federal Courts Rules. This is the Rule that provides for an
applicant to obtain the evidence that was before the administrative
decision-maker. Related to this, though not in issue here, is how the applicant
places the evidence, once obtained, before the administrative decision-maker.
•
The admissibility in the
reviewing court of evidence other than that which was before the administrative
decision-maker.
•
Whether, notwithstanding the
above, an applicant in a judicial review may compel production of evidence from
the administrative decision-maker or from others and have it placed before the
reviewing court. In what circumstances should the reviewing court make a
production order?
•
Where, in the end, there are
gaps in the evidentiary record before the reviewing court, how, if at all, can
the reviewing court go about its task of review?
The submissions before
me address or touch on these issues—all of which bear to a varying degree on
what the Tsleil-Waututh Nation seeks in this motion.
(3)
Should this Court decide the
motion now?
[21]
This motion has been brought
on an interlocutory basis. As is the normally the case for interlocutory
motions raised on judicial review, the Court must consider whether the motions
should be decided now or whether they should be left for the hearing panel.
[22]
Before us are issues concerning the content and
sufficiency of the evidentiary record before the reviewing court. On an
application for judicial review, the reviewing court can handle these issues
and often does.
[23]
In my view, there is enough legal certainty surrounding
this motion and its outcome on the facts for it to be determined now. As well,
resolving a number of points raised by the motion and settling the parties’
situations in this litigation will allow the parties to proceed in an orderly
way with the pre-hearing cross-examinations and the hearing itself. Indeed, I
expect that these reasons may assist the parties in focusing the submissions that
they will make to the panel hearing these consolidated applications. See generally
Collins v. Canada, 2014 FCA 240, 466 N.R. 127
at paras. 6-7; Gitxaala Nation v. Canada, 2015 FCA 27 at paras. 7 and 12; Bernard v. Canada (Revenue
Agency), 2015 FCA 263, 479 N.R. 189 at
paras. 9-12 (“Bernard (2015)”); McConnell v. Canada (Canadian Human
Rights Commission), 2004 FC 817, aff’d
2005 FCA 389; Canadian Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA
8, 200 F.T.R. 94.
(4)
Has Canada complied with
section 39 of the Canada Evidence Act?
[24]
Canada has issued a
certificate under section 39 of the Canada Evidence Act. Section 39 “is Canada’s response to the need to provide
a mechanism for the responsible exercise of the power to claim Cabinet
confidentiality in the context of judicial and quasi-judicial proceedings”: Babcock v. Canada, 2002 SCC 57, [2002] 3 S.C.R. 3 at para.
21.
[25]
Certificates are issued to protect Cabinet
confidences and nothing more. A certificate cannot be issued to “thwart public inquiry” or “gain
tactical advantage in litigation”: Babcock at para. 25.
[26]
According to the Supreme Court in Babcock (at
para. 27), a certificate is valid if it is done by the Clerk or a Minister of
the Crown, it relates to the information set out in subsection 39(2), it is
done bona fide, and it is aimed at preventing disclosure of information
that has been and is confidential.
[27]
The role of this Court in reviewing a section 39
certificate is limited. We must refuse disclosure of the information covered by
the certificate “without examination or hearing of the
information”: Babcock at para. 38. We only review to ensure that the
decision to make the certificate and the certificate itself “flow from statutory authority clearly granted and properly
exercised”: Babcock at para. 39, citing Roncarelli v.
Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689.
[28]
In practice, this means the
Court may consider whether the information for which immunity is claimed does
not fall within subsection 39(2) or whether the Clerk or Minister has
improperly exercised the discretion conferred by subsection 39(2): Babcock
at para. 39. The Supreme Court amplified on this as follows (at para. 40):
The court, person
or body reviewing the issuance of a s. 39 certificate works under the
difficulty of not being able to examine the challenged information. A challenge
on the basis that the information is not a Cabinet confidence within s. 39 thus
will be generally confined to reviewing the sufficiency of the list and
evidence of disclosure. A challenge based on wrongful exercise of power is
similarly confined to information on the face of the certificate and such
external evidence as the challenger may be able to provide. Doubtless these
limitations may have the practical effect of making it difficult to set aside a
s. 39 certification.
[29]
The certificate covers the
following documents:
#1: Letter to the
Honourable Scott Brison, President of the Treasury Board, in November 2016 from
the Honourable Jim Carr, Minister of Natural Resources, regarding the
scheduling of consideration of a proposed Order in Council concerning the Trans
Mountain Expansion Project.
This information is a record reflecting communications
between ministers of the Crown concerning agenda of Council. The information is
therefore within the meaning of paragraphs 39(2)(c) and 39(2)(d) respectively
of the Canada Evidence Act.
#2: Submission to the Governor in Council in November, 2016
in English and French from the Honourable Jim Carr, Minister of Natural
Resources, regarding a proposed Order in Council concerning the Trans Mountain
Expansion Project, including signed Ministerial recommendation, summary and
accompanying materials.
This information, including all its attachments in their
entirety which are integral parts of the document, constitutes a memorandum the
purpose of which is to present proposals or recommendations to Council. The
information is therefore within the meaning of paragraphs 39(2)(a) of the Canada
Evidence Act.
[30]
The Tsleil-Waututh Nation submits that Canada
has not complied with section 39 of the Canada Evidence Act: the
documents are not sufficiently described. It says that the certificate does not
specify the exact dates on which Documents #1 and #2 on the certificate were
delivered to their recipients. Further, it says that there is no itemized and
specific description of the materials that are said to have accompanied Document
#2.
[31]
Babcock guides this Court in cases where, as here, the
sufficiency of the description of documents is contested (at para. 28):
It may be useful
to comment on the formal aspects of certification. As noted, the Clerk must
determine two things: (1) that the information is a Cabinet confidence within
s. 39; and (2) that it is desirable that confidentiality be retained taking
into account the competing interests in disclosure and retaining
confidentiality. What formal certification requirements flow from this? The
second, discretionary element may be taken as satisfied by the act of
certification. However, the first element of the Clerk’s decision requires that
her certificate bring the information within the ambit of the Act. This means
that the Clerk or minister must provide a description of the information
sufficient to establish on its face that the information is a Cabinet
confidence and that it falls within the categories of s. 39(2) This
follows from the principle that the Clerk or minister must exercise her
statutory power properly in accordance with the statute. The kind of
description required for claims of solicitor-client privilege under the civil
rules of court will generally suffice. The date, title, author and recipient of
the document containing the information should normally be disclosed. If
confidentiality concerns prevent disclosure of any of these preliminary indicia
of identification, then the onus falls on the government to establish this,
should a challenge ensue. On the other hand, if the documents containing the
information are properly identified, a person seeking production and the court
must accept the Clerk’s determination. The only argument that can be made is
that, on the description, they do not fall within s. 39, or that the Clerk
has otherwise exceeded the powers conferred upon her. [emphasis added]
[32]
In this passage, the Supreme
Court says that the description should approximate “the kind of description required for claims
of solicitor-client privilege under the civil rules of court.” But it adds that “normally” the “date, title, author and recipient of the document” should
be disclosed.
[33]
These two statements conflict somewhat. To
assert solicitor-client privilege successfully over a document, it is not
always necessary to disclose the date, title, author and recipient of the
document. Sometimes the disclosure of this information—especially the title of
the document—can reveal privileged information. In my view, based on a complete
reading of Babcock, the dominant consideration that overrides this potential
conflict is that the certificate must provide enough information to allow a
court to assess, from the face of the certificate, that the Clerk has listed
documents that fit under section 39, and has not exceeded her or his statutory
powers.
[34]
Document #2 meets this overall test. A
submission from a particular Minister to the entire Governor in Council during
the month of its meeting (November, 2016) with “signed
Ministerial recommendation, summary and accompanying materials”—attachments
that are said to be “integral parts of the document
[i.e., the submission]”—qualifies for protection under paragraph 39(2)(a)
(“a memorandum the purpose of which is to present
proposals or recommendations to Council”) and paragraph 39(2)(d)
(“a record used for or reflecting communications or
discussions between ministers of the Crown on matters relating to the making of
government decisions or the formulation of government policy”).
[35]
Would a description such as the
one provided here be adequate for the assertion of a claim of solicitor-client
privilege? In my view, yes.
[36]
Suppose a lawyer writes a memorandum dated “November 2016” to her team of lawyers concerning
litigation their client is defending. The litigation concerns breach of
contract. The memorandum is for the team to consider in advance of a meeting at
which the team will decide upon a course of action for their client. In the
memorandum, the lawyer set out her recommendations and attached certain
documents so that her team could consider the matter properly. On this
description alone, the entire bundle of documents would be privileged. See, for
example, the discussion of privilege in Slansky v. Canada (Attorney General),
2013 FCA 199, [2015] 1 F.C.R. 81.
[37]
This is not to say that individual documents
that are attached are privileged for all time in all contexts. Suppose one of
the documents considered by the lawyer team is a contract entered into between
the client and the opposite party in litigation. In the bundle of documents
supplied to the lawyer team, it is privileged. The opposite party has no right
to see what the lawyer team considered in its meeting about the client’s
affairs. However, the contract itself will be admissible in the litigation.
[38]
The Tsleil-Waututh Nation complains that the
exact dates and titles of documents are not disclosed and this triggers a
consequence: under Babcock (at para. 28) when there is such
non-disclosure, “the onus falls on the government to
establish [the documents fall under section 39], should a challenge ensue.”
That may be so, but for the reasons set out above, that onus has been met,
merely from the description provided on the face of the certificate: a
description that has persuaded me that here there has not been any exceedance
of statutory power.
[39]
Further, concerning the undisclosed exact dates
and titles, I note that in the solicitor-client context—one that Babcock
invites us to use—disclosure of such information can reveal privileged
information. In the above example, if the lawyer team were to disclose to the
other side the title, the authors and the date of the contract, the other side
would know that the lawyer team had the contract before them. If the lawyer
team were to disclose the title, the authors, the dates and recipients of all
the attachments, the other side might well be able to piece together what was
placed before the lawyer team. Indeed, with that information, it might be able
to take an informed guess regarding the subject matter of the issue the lawyer
team was considering.
[40]
The description of Document #2 says that “all its attachments in their entirety…are integral parts of
the document” which is described as a “[s]ubmission
to the Governor in Council.” This suggests that a more particularized
description of the attachments, such as their exact dates, authors and
titles—like the contract in the above example—would shed light on what the
submission said and, thus, reveal a Cabinet confidence.
[41]
In its reply submissions, the Tsleil-Waututh
Nation asks the Court to draw an inference that the Clerk has selectively
withheld disclosure of the exact dates to gain a tactical litigation advantage.
On the material before me, I see no basis for drawing that inference, nor do I
see any evidence of bad faith. As I have explained, the more likely reason why
exact dates and some other specifying information have not been provided is
that parties may be able to deduce exactly what was placed before and discussed
by the Governor in Council, undercutting the protective purpose of section 39
of the Canada Evidence Act.
[42]
In this case, I consider the description of
Document #2 adequate. If more particularity in the descriptions were supplied, there
would be a substantial likelihood that the information that lies at the heart of
what section 39 exists to protect would be disclosed to some extent. Enough concerning
Document #2 has been disclosed to convince me that the decision to make the
certificate and the certificate itself, in the words of Babcock, “flow from statutory authority clearly granted and properly
exercised.”
[43]
Document #1 stands in a different position. It
is a letter in November 2016 from one Minister to another “regarding the scheduling of consideration” of a
proposed order in council concerning the Project. We know that the Order in Council
was made on November 29, 2016. Is a discussion of the timing of a meeting,
without more, a confidence falling under subsection 39(2)? The Attorney General
offered no cases on this specific point, nor could I find any myself.
[44]
But the description does not stop with timing.
It adds that the communication is “concerning [the]
agenda” of the Council. This injects vagueness and inconsistency into
the description. Does Document #1 go beyond the timing and shed light on
substantive reasons that might affect the timing, such as the preparation of
the submission to the Governor in Council? Does the mere fact there is a
discussion of timing taking place reveal something that is covered within
subsection 39(2)? Does the communication contain a discussion about the substance
of the agenda, such as the topics that the Governor in Council should, could or
will discuss? If the answer to any of those questions were “yes,” I would have found that Document #1 falls under
subsection 39(2) and there is no exceedance of statutory power. But I cannot
tell.
[45]
In short, the description of Document #1 does
not lead me to conclude that it falls under subsection 39(2).
[46]
As well, I am not satisfied that a document in
November 2016 discussing only timing and nothing else—which is what the first
part of the description of Document #1 suggests—falls within subsection 39(2).
Going back to cases like Babcock and Carey v. Ontario, [1986] 2
S.C.R. 637, 35 D.L.R. (4th) 161, I am not persuaded
on the evidence or the brief submissions presented by the Attorney General on
this point that a document that merely asks, “Should
we do this on November 22 or November 29?”
without any argumentation, debate or reasons is a Cabinet confidence falling
under the specific paragraphs of subsection 39(2).
[47]
Although the description of
Document #1 does not persuade me that it falls under subsection 39(2), I would
not grant the Tsleil-Waututh Nation any relief. If Document #1 concerns only
timing and nothing more, it is irrelevant and, thus, not admissible in the
consolidated applications. Nothing in these consolidated applications turns on
discussions of the timing of Cabinet’s consideration of the matter. The only
thing that matters is the legality of the Order in Council, which we all know is
dated November 29, 2016.
[48]
The Tsleil-Waututh Nation makes a wider argument
against the certificate. It suggests that the certificate is defective because
it “adversely impacts [the Tsleil-Waututh Nation’s]
ability to review the decision(s) being challenge[d].” In particular,
the failure to identify the documents in question with specificity—and here I
believe the Tsleil-Waututh Nation has the attachments to Document #2 front of
mind—undercuts its ability to know whether certain matters raised by it as late
as November 28, 2016, were considered by the Governor in Council when it
approved the Project.
[49]
I reject this submission. The Supreme Court in Babcock,
above, makes it clear that the impact that a section 39 certificate might have
on litigation is not a relevant factor for assessing the validity or
sufficiency of a certificate.
[50]
Putting this aside for a moment, the
Tsleil-Waututh Nation’s concern about immunization is a significant one and in
no way do I minimize it. I wish to discuss this for a moment, as it will be
relevant later in my reasons to the Tsleil-Waututh Nation’s request for a
production order against Canada and it may benefit the parties as they prepare
for the hearing of the consolidated applications.
[51]
As will be discussed below, under our law the
exercise of public powers is not to be immunized from meaningful review. But I
do not share the Tsleil-Waututh Nation’s concern that this certificate necessarily
has the effect of immunizing from review what the Governor in Council has done.
[52]
In a sense, this sort of effect caused by a
certificate is nothing new. Administrative tribunals can rely on deliberative
secrecy and, thus, can withhold key information from an applicant for judicial
review: see Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952 at page 965. Legal professional
privilege can also apply even on key issues in the judicial review: Pritchard
v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809. In
these cases, the reviews of the administrative decision-makers still went ahead.
The withholding of just some materials from the reviewing court does not, by
itself, necessarily mean that the administrative decision-maker is being
immunized from review.
[53]
And while the impact of a section 39 certificate
on litigation is not a relevant consideration in assessing the validity of the
certificate, the issuance of a section 39 certificate may indeed impact the
litigation to a challenger’s benefit. The issuance of a certificate is no small
thing. In Gitxaala Nation (2016), this Court registered its concern
about the issuance of a certificate as follows (at para. 319):
The balance of
the record that could shed light on this, i.e., the
staff recommendations flowing from the Phase IV consultation process, the
ministerial recommendation to the Governor in Council and the information
before the Governor in Council when it made his decision, are all the subject
of Canada’s claim to Cabinet confidence under section 39 of the Canada
Evidence Act and thus do not form part of the record. Canada was not
willing to provide even a general summary of the sorts of recommendations and
information provided to the Governor in Council.
[54]
Can this sort of concern lead to an adverse
finding? Arguably yes. In RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, a majority of the Supreme
Court found that a tobacco advertising ban was contrary to the Charter and was
of no force or effect. In finding that the ban was not justified under section
1 of the Charter, McLachlin J. (as she then was), writing in separate reasons
for three Justices, appeared to take into account the issuance of the
certificate (at paras. 165-166):
These
considerations suggest that the advertising ban imposed by s. 4 of the Act may
be more intrusive of freedom of expression than is necessary to accomplish its
goals. Indeed, Health and Welfare proposed less-intrusive regulation instead of
a complete prohibition on advertising. Why then, did the government adopt such
a broad ban? The record provides no answer to this question. The government
presented no evidence in defence of the total ban, no evidence comparing its
effects to less invasive bans.
This omission is all the more glaring in view of the fact
that the government carried out at least one study of alternatives to a total
ban on advertising before enacting the total ban. The government has deprived
the courts of the results of that study. The Attorney General of Canada refused
to disclose this document and approximately 500 others demanded at the trial by
invoking s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, thereby
circumventing an application by the tobacco companies for disclosure since the
courts lack authority to review the documents for which privilege is claimed
under s. 39. References to the study were blanked out of such documents as were
produced: Reasons at Trial, at p. 516. In the face of this behaviour, one is
hard-pressed not to infer that the results of the studies must undercut the
government's claim that a less invasive ban would not have produced an equally
salutary result.
[55]
In its submissions, the Attorney General
suggests that the section 39 certificate does not have the drastic effect the
Tsleil-Waututh Nation suggests. Ultimately, this will be for the hearing panel of
the Court to assess, but there are certain matters raised by the Attorney
General or consequent to what she has raised that are worth mentioning.
[56]
First, in this case there is an evidentiary
record, partly described below. It is growing. It seems to be at least
equivalent to the one placed before this Court in Gitxaala Nation (2016).
And in that case this Court did not find that the issuance of a certificate
improperly immunized the Governor in Council’s approval of the Northern Gateway
Project from review. In fact, in Gitxaala Nation (2016), this Court was
able to meaningfully review the Order in Council. It quashed it on account of
inadequate consultation with Indigenous groups.
[57]
Second, the Attorney General
submits that the issue whether the Crown met its duty to consult Indigenous
applicants “is determined on
the basis of the evidence filed by the parties in relation to what actually
took place during the consultation process”
rather than by what the Governor in Council may have considered. This is seen from a Federal Court case where a section 39
certificate had been filed and the issue before the Court was whether the duty
to consult had been fulfilled:
The record does
not reveal a lack of transparency; on the contrary, it shows that the Crown
repeatedly shared information, replied to the [First Nation’s] correspondence,
met the [First Nation’s] representatives, and made policy decisions in light of
the [First Nation’s] concerns. The applicant was not entitled to disclosure of
the Minister’s advice to Cabinet: as they acknowledge, the Minister properly
asserted privilege (Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39(2)).
Furthermore, the duty to consult is determined by the actions that Canada took
during the consultation process, not by what the Governor in Council may have
considered.
(Adam v. Canada,
2014 FC 1185 at para. 79.)
[58]
As well, in the same vein, this Court stated in Gitxaala
Nation (2016) that the duty to consult arises in cases like this in two
ways. Before the Governor in Council, it can be a basis for finding
unreasonableness on the basis of the evidence before it. But, notwithstanding
whatever was before the Governor in Council, if the duty to consult owed by the
Crown has not been fulfilled, the approval cannot stand: Gitxaala Nation
(2016) at para. 159; semble, Adam, above.
[59]
No doubt the parties will make submissions on
these and related matters at the hearing of these consolidated applications.
[60]
This suffices to determine the portion of the
Tsleil-Waututh Nation’s motion dealing with section 39 of the Canada
Evidence Act. I turn now to a consideration of the Rule 317 issue the
Tsleil-Waututh Nation has raised in its motion and its request for an order
requiring Canada to produce more material.
[61]
To set the stage for this, it is necessary to
offer some background legal discussion regarding the record before reviewing
courts.
[62]
First, I shall examine the role of the
evidentiary record before the reviewing court in judicial reviews and the principles
that govern the court’s interpretation of relevant statutory provisions and procedural
rules. I shall also review the basic principles of admissibility in judicial
review proceedings.
[63]
Then I shall descend into more practical and
mechanical considerations concerning issues relating to the record before the
reviewing court: how applicants can obtain evidence relevant to an application
for judicial review and how all of the evidence is to be placed before the reviewing
court. These two concepts, along with issues relating to the admissibility of
evidence, are frequently confused. They must be kept separate.
[64]
I do not apologize for starting at such a level
of generality. As we journey through areas like this, we can get lost in a
dense forest of case law, with multiple issues flying about and various
procedural rules seeming like predators poised to strike. But if we step back
and view things from above, we can see the whole forest and find our way.
[65]
Here, the whole forest is an appreciation of the
important role played by the record in judicial reviews, certain fundamental
principles concerning judicial reviews, legislative provisions that bear on the
problem, and how courts go about their task of review. With that appreciation
in mind, we can better understand different things in the forest and their
relationship to each other.
[66]
Only by doing this can Rule 317—a rule about
obtaining evidence from the administrative decision-maker—be placed in its
proper context and understood. Only then can the Tsleil-Waututh Nation’s complaint
about non-compliance of Rule 317 be considered. And only then can its broader request
for an order requiring Canada to produce further material be addressed.
(5)
The evidentiary record
before reviewing courts: some background
(a)
The role of the evidentiary record before
reviewing courts and relevant principles governing it
[67]
Subject to constitutional
considerations, we must follow the statutory provisions and rules that govern
and define the content of the evidentiary record before the reviewing court. Properly
interpreted in accordance with their text, context and purpose, they sometimes
give reviewing courts some ambit for discretion. Thus, we must have front of
mind the role that the evidentiary record plays in reviewing courts. It lies at the heart of meaningful
judicial review. Its importance cannot be understated.
[68]
First is the role the evidentiary record plays
in the reviewing court’s discernment of the reasons of the administrative
decision-maker. Where the reasons of the administrative decision-maker are
sparse or even non-existent on a key point, they can sometimes be deduced from
comparing the result reached with the evidentiary record: see, e.g., Public Service Alliance of Canada v. Canada Post
Corp.,
2011 SCC 57, [2011] 3 S.C.R. 572.
[69]
Even where the reasons are
more fulsome, the record the administrative decision-maker had in front of them
can play a key role in construing and interpreting its reasons. See generally Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at para. 15; Canadian National Railway
Company v. Emerson Milling Inc., 2017 FCA 86 at para. 39.
[70]
The reasons of the administrative decision-maker—and,
thus, the evidentiary record intimately associated with them—are no small thing.
They are the starting point and the focus for the reviewing court’s judicial
review analysis: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 48 and 56; Delios
v. Canada (Attorney General), 2015 FCA 117, 472
N.R. 171 at para. 26.
[71]
And, quite apart from the foregoing, the evidentiary
record before the administrative decision-maker is indispensable to the
reviewing court’s fulfilment of its responsibility to engage in meaningful
review. In most judicial reviews, the reviewing court must evaluate the
substantive correctness or acceptability and defensibility of the
administrative decision. It is alert to errors or defects that might render the
decision unreasonable. Often error or unacceptability and indefensibility is
found by comparing the reasons with the result reached in light of the
legislative scheme and—most importantly for present purposes—the evidentiary
record before the administrative decision-maker.
[72]
For example, a key evidentiary finding made
without anything in the evidentiary record in circumstances where evidence was
necessary can render an administrative decision unreasonable: Canada
(Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014
FCA 56, 455 N.R. 157 at para. 100; Delios,
above at para. 27. So can a finding that is completely at odds with the
evidentiary record. In the case of reasonableness review, where a key part of the
record—for example, any evidence on an essential element—is missing and, as a
result, the reviewing court cannot assess whether the decision is within the
range of acceptability and defensibility and, thus, reasonable, sometimes the
reviewing court has no choice but to quash the administrative decision: see, e.g.,
Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227, [2014] 1 F.C.R. 766 at para. 137; Canada v. Kabul
Farms Inc., 2016 FCA 143 at paras. 31-39.
[73]
Related to this is the role of the evidentiary
record in preventing administrative decision-makers and their decision-maker from
being immunized from review.
[74]
Where the record placed before the reviewing
court is deficient, certain grounds for setting aside an administrative
decision can be foreclosed. To take an extreme example, if the evidentiary
record of the administrative decision-maker is not before the reviewing court,
how can a reviewing court evaluate whether the administrative decision-maker’s
decision was based on any evidence at all?
[75]
This point has been
expressed in different ways. The Saskatchewan Court of Appeal put it this way:
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.
(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.)
[76]
An academic commentator
expressed it this way:
Without knowing the reasoning behind a decision, it is
impossible for a judge to determine if it is founded upon arbitrary reasoning.
Thus, in order for a judge to determine whether a decision maker acted
lawfully, the decision maker must provide reasons adequate to allow a reviewing
judge to determine why the decision maker made the decision they did and
whether it followed explicit statutory requirements [or the basis for the
decision must be apparent in the record]. If the judge cannot ascertain how the
decision was made [even in light of the evidentiary record], then the court
cannot fulfill this role and decisions made in violation of the rule of law may
be sanctioned by the court.
(Paul A. Warchuk, “The Role of Administrative Reasons in
Judicial Review: Adequacy and Reasonableness” (2016), 29 C.J.A.L.P. 87 at p. 113.)
[77]
In support of its motion, the Tsleil-Waututh
Nation forcefully and repeatedly makes the point about immunization. It cites
the dissenting reasons of this Court in Slansky, above, correctly noting
that the majority did not disagree with the propositions put on this point. Slansky put the point this
way (at para. 276):
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 tribunal. In other words, an inadequate evidentiary
record before the reviewing court can immunize the tribunal from review on
certain grounds.
[78]
In judicial review, the
reviewing courts are in the business of enforcing the rule of law, one aspect
of which is “executive
accountability to legal authority” and protecting “individuals from arbitrary [executive] action”: Reference Re Secession of Quebec,
[1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paragraph 70. Put another way, all holders of public power are to be accountable for their
exercises of power, something that rests at the heart of our democratic governance
and the rule of law: Slansky at paras. 313-315.
Subject to any concerns about justiciability, when a judicial review of
executive action is brought the courts are institutionally and practically capable
of assessing whether or not the executive has acted reasonably, i.e.,
within a range of acceptability and defensibility. That assessment is the
proper, constitutionally guaranteed role of the courts within the
constitutional separation of powers: Crevier v. A.G. (Québec) et al.,
[1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1; Dunsmuir, above; Hupacasath
First Nation v. Canada (Foreign Affairs and International Trade Canada),
2015 FCA 4, 379 D.L.R. (4th) 737 at para. 66; Habtenkiel v. Canada
(Citizenship and Immigration), 2014 FCA 180 at para. 38; Paradis Honey Ltd.
v. Canada, 2015 FCA 89, 382 D.L.R. (4th) 720 at
para. 140. But, at least in the situation where the evidentiary record
of the administrative decision-maker is not before the reviewing court in any
way whatsoever—i.e., there is not even a summary or hint of what was
before the administrative decision-maker—or the record is completely lacking on
an essential element, concerns about immunization of administrative
decision-making can come to the fore.
[79]
In this Court, administrative decision-makers
whose decisions cannot be fairly evaluated because of a complete lack of
anything in the record on an essential element—situations where in effect the
administrative decision-maker says on an essential element, “Trust us, we got it right”—have seen their decisions quashed:
see, e.g., Leahy above at para.
137; Kabul Farms Inc. at paras. 31-39; Canadian Association of
Broadcasters v. Society of Composers, Authors and Music Publishers of Canada,
2006 FCA 337, 54 C.P.R. (4th) 15 at para. 17.
The test would seem to be that if a particular evidentiary record—even if
bolstered by permissible inferences and any evidentiary presumptions—disables
the reviewing court from assessing reasonableness under an acceptable
methodology (such as that contemplated in cases like Delios, above and Canada
(Attorney General) v. Boogaard, 2015 FCA 150), the decision must be
quashed.
[80]
There are a number of other principles that can
affect the reviewing court’s consideration of the adequacy of the evidentiary
record before it.
[81]
In an ideal world, in complicated cases like
this, a judicial review should not go ahead until every available crumb of
evidence has been placed before the reviewing court. But this is simply not
possible.
[82]
Subsection 18.4(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7 requires judicial reviews to be heard and
determined “without delay and
in a summary way.” This is a
Parliamentary commandment writ in law. Under the hierarchy of law, a statutory
provision takes precedence over any subordinate Rules found in the Federal
Courts Rules and the case law of this Court: Stratas, David, The
Canadian Law of Judicial Review: Some Doctrine and Cases, at pp. 10-15
(April 20, 2017 version) (online: https://ssrn.com/abstract=2924049). The
rationale for promptness was discussed by this Court in Canada (Attorney General) v. Larkman,
2012 FCA 204, 433 N.R. 184 at paras. 86-88 (albeit in the context of the short
limitation period in subsection 18.1(2)).
[83]
Further, Rule 3 of the Federal Courts Rules
provides that the Rules “shall be interpreted and
applied so as to secure the just, most expeditious and least expensive
determination of every proceeding on its merits.” The concepts in Rule 3
have been underscored by the Supreme Court’s recent call for courts and
litigants to embrace a new litigation culture: Hryniak v. Mauldin, 2014
SCC 7, [2014] 1 S.C.R. 87.
[84]
There are also certain general values and
principles in administrative law—the rule of law, good administration, democracy and the
separation of powers—that on occasion deserve voice in
decisions concerning the content of the record before the reviewing court: see
generally Paul Daly, “Administrative Law: A
Values-Based Approach” in John Bell, Mark Elliott, Jason Varuhas and
Philip Murray eds., Public Law Adjudication in Common Law Systems: Process
and Substance (Hart, Oxford, 2015).
[85]
Finally, and perhaps most significantly,
reviewing courts are not trial courts. Trial courts build the evidentiary
record for the first time, making findings of fact. They decide the merits. But
reviewing courts are different. Reviewing courts review the decisions of
administrative decision-makers. Those administrative decision-makers—not the
reviewing courts—have been empowered by Parliament to determine the merits of
matters. The administrative decision-makers are the merits-deciders and the
reviewing courts are restricted to reviewing those merits-based decisions. See
generally, e.g., Association of
Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at
paras. 14-19; Bernard (2015), above at paras. 22-28. This consideration
alone significantly affects the law of admissibility of evidence in the
reviewing court, a topic I turn to now.
(b)
The general rule of admissibility in judicial
review courts: the record before the administrative decision-maker is the
record on review
[86]
As a general rule, only the
evidentiary record that was before the administrative decision-maker is
admissible on judicial review: Association of Universities and Colleges of
Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA
22.
[87]
The main principle behind
this general rule is the one just discussed: the distinction between the
administrative decision-makers as the bodies designated by Parliament as the
merits-deciders and the Federal Courts as merely reviewing courts, nothing
more.
(c)
How do applicants for judicial review obtain the
record before the administrative decision-maker?
[88]
Usually applicants for
judicial review participated fully before the administrative decision-maker whose
decision is under review. Sometimes they already will have the record in their
possession.
[89]
Sometimes, however, applicants for judicial
review do not have the full record or are not certain that they do. This is
where Rule 317 comes in. Under Rule 317, applicants can request the
administrative decision-maker for “material relevant to
an application that is in the possession of [the decision-maker]…and not in the
possession of the [applicants] by serving on [the decision-maker] and filing a
written request, identifying the material requested.”
[90]
Under Rule 318, the administrative
decision-maker can object to production of the material. Usually the objection
is based on relevance, deliberative privilege, solicitor-client privilege or
public interest privilege. The objection is litigated in the manner specified
by cases such as Lukács v. Canada (Transportation Agency), 2016 FCA 103
and Bernard v. Public Service Alliance of Canada, 2017 FCA 35.
[91]
Note that Rule 317 is only a mechanism by which
applicants can obtain the record before the administrative decision-maker. It
is not a means by which the record is placed before the reviewing court.
(d)
How does the record before the administrative
decision-maker get before the reviewing court?
[92]
In the Federal Courts
system, applicants can place the record of the administrative
decision-maker—whether obtained through their own participation before the
administrative decision-maker or obtained under Rules 317-318—before the
reviewing court by offering an affidavit in support of their application for
judicial review: Rule 306. The record of the administrative decision-maker is
appended as one or more exhibits.
[93]
Insofar as placing the record before the
administrative decision-maker before the reviewing court is concerned,
respondents who consider the affidavit of the applicant to be incomplete or
inaccurate may offer their own affidavit material: Rule 307.
[94]
Thereafter, cross-examinations on affidavits can
take place: Rule 308.
[95]
The parties place their affidavits, the
transcripts of the cross-examinations and the exhibits from any
cross-examinations into records that they file with the Court: Rules 309 and
310.
[96]
The entire process of placing the record before
the administrative decision-maker before the reviewing court is set out in more
detail in Canadian Copyright Licensing Agency (Access Copyright) v.
Alberta, 2015 FCA 268, [2016] 3 F.C.R. 19.
(e)
Exceptions to the admissibility of evidence on
judicial review
[97]
There are exceptions to the
general rule that only the evidentiary record before the administrative
decision-maker is admissible before the reviewing court. These do not offend
the distinction between the administrative decision-maker as the merits-decider
and the reviewing court whose role is restricted to review. See, e.g., Association
of Universities, above; Tsleil-Waututh Nation v. Canada (Attorney
General), 2017 FCA 116; Bernard (2015), above; Delios, above at
paras. 41-42.
[98]
These cases show that there
are three recognized exceptions and the list of exceptions is not closed:
•
Sometimes
this Court will receive an affidavit that provides general background in
circumstances where that information might assist it in understanding the
issues relevant to the judicial review.
•
Sometimes
an affidavit is necessary to bring to the attention of the judicial review
court procedural defects that cannot be found in the evidentiary record of the
administrative decision-maker, so that the judicial review court can engage in
meaningful review for procedural unfairness.
•
Sometimes
an affidavit is received on judicial review in order to highlight the complete
absence of evidence before the administrative decision-maker when it made a
particular finding.
The
last two are really just one exception: where a tenable ground of review is
raised that can only be established by evidence outside of the administrative
decision-maker’s record, the evidence is admitted.
[99]
Suppose,
for example, that an administrative decision-maker received a payment from a
party after a hearing. In the reviewing court, the applicant alleges, with some
credence, that this payment was a corrupt bribe. The bribe can only be proven
by adducing post-hearing evidence, i.e., evidence that was not before
the administrative decision-maker. Or suppose that in the reviewing court
the applicant alleges an improper purpose on the part of the administrative
decision-maker in circumstances where the allegation has some basis and is not
just a bare allegation made to engage in a fishing expedition. Evidence of that
improper purpose is often not in the record before the administrative
decision-maker and must be proven by collateral evidence. This is another
example where reviewing courts will admit evidence that was not before the administrative
decision-maker. See, e.g., Roncarelli v. Duplessis, above;
Re Multi-Malls Inc. and Minister of Transportation and Communications (1977), 14 O.R. (2d) 49, 73 D.L.R. (3d) 18 (C.A.); Doctors
Hospital v. Minister of Health et al.
(1976), 12 O.R. (2d) 164, 68 D.L.R. (3d) 220 (Div.
Ct.).
[100] For the purposes of these reasons, I shall refer
to this sort of evidence—evidence admitted by way of exception to the general
rule of admissibility—as “exceptional
evidence.”
(f)
How does one obtain the exceptional evidence and
place it before the Court?
[101] Exceptional evidence may be available from
witnesses. The standard way and the way that allows judicial reviews to be
heard and determined “without
delay and in a summary way”
(as required by subsection 18.4(1) of the Federal Courts Act and Rule 3
of the Federal Courts Rules) is through an affidavit; because of
subsection 18.4(1), this will always be the preferred way. The affidavits can
be subject to cross-examination and are presented to the Court by including
them in the records that are filed with the Court.
[102] Another way to gather exceptional evidence is to cross-examine a
deponent in the course of the judicial review proceeding. Undertakings can be
given that, in some circumstances, where appropriate, exceptional evidence will
have to be produced.
[103] In some cases, witnesses may be less than forthcoming.
In rare cases, witnesses may be subpoenaed to produce a document or other
material on an application for judicial review: Rule 41(1) and Rule 41(4)(c).The
subpoena power in Rule 41 applies to “proceedings” and Rule 300 shows that
applications are “proceedings.” This is allowed with leave of the Court where:
•
the evidence is necessary;
•
there is no other way of
obtaining the evidence;
•
it is clear that an
applicant is not engaged in a fishing expedition but, instead, has raised a
credible ground for review beyond the applicant’s say-so; and
•
a witness is likely to have relevant
evidence on the matter.
[104] As well, a judicial review may be treated and
proceeded with as an action, thereby allowing for discovery and live witnesses:
sections 18.4(2) and 28(2) of the Federal Courts Act. However, the
situations where this is allowed are most rare: see, e.g., the
requirements set out in Association des crabiers acadiens Inc. v. Canada
(A.G.), 2009 FCA 357, 402 N.R. 123.
[105] Finally, rather than taking the foregoing steps
to obtain exceptional evidence, the parties can agree to facts and submit them
to the reviewing court. However, caution must be exercised: the reviewing court
must always respect the fact that the administrative decision-maker has been
designated under the administrative regime as the exclusive decider of the
merits.
(g)
The limits of a request under Rule 317
[106] Rule 317 plays a limited role. As mentioned
above, it allows applicants to obtain from the administrative decision-maker “material relevant to an application that is
in the possession of [the decision-maker]…and not in [their] possession.”
[107] Rule 317 means what it
says. The only material accessible under Rule 317 is that which is “relevant to an application” and is “in the possession” of the administrative
decision-maker, not others. Rule 318(1) shows us that the material under Rule
317 must come from the administrative decision-maker, not others.
[108] The material must be
actually relevant. Material that “could be relevant in the hopes of later establishing relevance” does not fall within Rule
317: Access Information Agency
Inc. v. Canada (Attorney General),
2007 FCA 224, 66 Admin L.R. (4th) 83 at
para. 21. The principles canvassed above—particularly those in section 18.4(1)
of the Federal Courts Act and Rule 3 of the Federal Courts Rules
relating to promptness and the orderly progression of judicial
reviews—discourage fishing expeditions.
[109] Relevance is defined by
the grounds of review in the notice of application:
A document is
relevant to an application for judicial review if it may affect the decision
that the Court will make on the application. As the decision of the Court will
deal only with the grounds of review invoked by the respondent, the relevance
of the documents requested must necessarily be determined in relation to the
grounds of review set forth in the originating notice of motion and the
affidavit filed by the respondent.
(Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455
at page 460 (C.A.).)
[110] The grounds of review are
to be read in order to obtain “a
realistic appreciation” of their “essential character” by reading them holistically and
practically without fastening onto matters of form: Canada (National Revenue) v. JP Morgan Asset Management
(Canada) Inc., 2013 FCA 250,
[2014] 2 F.C.R. 557 at paras. 50 and 102; Canadian National Railway Company
v. Emerson Milling Inc., 2017 FCA 79 at para. 29.
[111] It is evident from the text of Rule 317 that it cannot be used to
obtain material that is in the possession of others.
[112]
It is often said in the case law that Rule 317
is restricted to the actual material the
administrative decision-maker had before it when making the decision and
nothing more: Pathak, above; 1185740
Ontario Ltd. v. Canada (Minister of National Revenue), [1998] 3 C.T.C. 215, 150 F.T.R. 60.
[113] This standard has been repeatedly applied by
this Court. In Quebec Port Terminals Inc. v. Canada Labour Relations Board (1994), 164 N.R.
60 at page 66, this Court stated:
The obligation
which is imposed on the tribunal by rules 1612 and 1613 [now Rules 317 and 318]
is “without delay” to “provide” or “forward” a “certified copy” of “material”
which is “in its possession” and which is “specified”. In my view, this
presumes that it is material which already exists at the time when the request
to obtain the material is made, which the tribunal used in its hearing,
deliberations or decision, which is part of its record and of which it is in a
[position] to provide a certified copy.
[114] In cases where some other government entity has
information and supplied some of it to the administrative decision-maker, again
only the information that was actually before the administrative decision-maker
is obtainable under Rule 317:
This surely has
reference to “material” that was before the federal board, commission or other
tribunal whose decision is the subject of an application for judicial review
pursuant to section 18.1 of the [Federal Courts Act] and not to the
contents of a Minister’s file where no decision of his [or her] is the subject
of the judicial review.
(Eli Lilly and Co. v. Nu-Pharm Inc., [1997] 1 F.C. 3 (C.A.) at pages
28-29.) To the same effect, see Canadian Arctic Resources Committee Inc. v.
Diavik Diamond Mines Inc. (2000), 35 C.E.L.R. (2d) 1, 183 F.T.R. 267 at
para. 27:
To engage in such
a review of all of the documents that were before the Responsible Authorities
would in effect be a challenge to the comprehensiveness of the Comprehensive
Study Report and indeed of the underlying science relied upon by the
Responsible Authorities and of their expertise. This goes far beyond the
judicial review of a Minister’s decision which was based upon a report arising
out of many months investigation by the Responsible Authorities.
[115] Rule 317 does not in any
way “serve the same purpose as
documentary discovery in an action”: Access Information Agency Inc.
v. Canada (Attorney General), 2007 FCA 224, 66 Admin. L.R. (4th) 83
at para. 17; Atlantic Prudence Fund Corp. v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 1156
(T.D.) at para. 11.
[116] As a result of the foregoing, it is hard to see Rule 317 being used
to obtain exceptional evidence. The only circumstance I can imagine is where
the exceptional evidence happens to be in the possession of the administrative
decision-maker—quite rare, I suspect.
[117] The Tsleil-Waututh Nation submits that materials other than those
before the administrative decision-maker may be considered relevant and
producible under Rule 317 where it is alleged the decision-maker breached
procedural fairness. Perhaps underneath this is a confusion of concepts of
admissibility—exceptional evidence can sometimes be adduced to demonstrate
procedural unfairness—with the substantive requirements of Rule 317. These must
be kept apart. Not everything that is admissible can be obtained under Rule 317.
For one thing, this submission overlooks the point, developed above, that the
materials must be in the possession of the administrative decision-maker.
[118] In support of this submission, the Tsleil-Waututh Nation cites the
Federal Court decisions in Canadian National Railway Company v. Louis
Dreyfus, 2016 FC 101 and Gagliano v. Canada (Commission of Inquiry),
2006 FC 720. In Dreyfus, the Federal Court suggests that materials that
should have been before the administrative decision-maker are producible under
Rule 317. In support of this, the Federal Court cites Access Information Agency, above and Gagliano, above. Access
Information Agency nowhere says that
materials that should have been before the administrative decision-maker are
producible under Rule 317. And Gagliano is best construed as the rare
case where exceptional evidence was admissible and happened to be in the
possession of the administrative decision-maker.
[119] Both Dreyfus and this particular submission
of the Tsleil-Waututh Nation underscore the need to
keep analytically separate different concepts such as obtaining evidence,
placing the evidence before the Court, the admissibility of evidence, the
requirements for particular tools (e.g., Rule 317), and how courts go
about reasonableness review.
(6)
Analysis of the Rule 317
request in this case
(a)
Procedures followed concerning Rule 317 in this
case
[120]
The Tsleil-Waututh Nation
placed its Rule 317 request in its application for judicial review.
[121] Under Rule 318(1), the Attorney General was to have responded to the
request within twenty days.
[122] The Attorney General did not do so. And the Tsleil-Waututh Nation
did not register a protest against the Attorney General’s inaction for
approximately two months.
[123] Neither can be faulted. In its Order dated March 9, 2017, this Court
granted leave to apply for judicial review in nine cases, consolidated these
nine applications with seven others, and then comprehensively scheduled the
consolidated applications. The March 9, 2017 Order contemplated that the
Attorney General would produce the record of the Governor in Council.
(b)
The Rule 317 request in this case
[124] I have reviewed the grounds of review in the
application for judicial review of the Tsleil-Waututh Nation.
[125] I am broadly summarizing, but in terms of the
issues relating to the duty to consult and accommodate, the Tsleil-Waututh
Nation is arguing that:
•
the Governor in Council’s
decision cannot stand on the state of the evidence before it; and
•
as the duty to consult and
accommodate has not been fulfilled at the present time, the Governor in
Council’s decision must be quashed.
[126] This mirrors the grounds that were considered in
Gitxaala Nation (2016), above. In that case, this Court noted that the
duty to consult arose in two potential ways. If the Governor in Council
incorrectly or unreasonably held that the Crown’s obligations had been
fulfilled at the time of its decision, its Order in Council is liable to be
quashed. But, more generally, “if
that duty [owed by the Crown] were not fulfilled, the Order in Council cannot
stand”: Gitxaala Nation
(2016) at para. 159.
[127] In its notice of application in file A-78-17, the Tsleil-Waututh
Nation requested “any material
that was before the [Governor in Council] or that it considered or relied on in
making the Order.”
[128] To assess whether Rule 317 has been satisfied, it is first necessary
to examine what has been produced concerning the current state of the record on
these issues. Has the Tsleil-Waututh Nation persuaded me that—excluding the
material covered by the section 39 certificate—there is still evidence in the
hands of the administrative decision-maker, here the Governor in Council, that
was before it and that is relevant to the grounds raised by the Tsleil-Waututh
Nation?
(c)
The current state of the record: has the Rule
317 request been satisfied?
[129] As far as consultation is concerned, the Order
in Council that approved the Project and that is attacked in these proceedings
provides as follows:
Whereas, by Order
in Council P.C. 2016-435 of June 3, 2016, the Governor in Council, pursuant to
subsection 54(3) of the National Energy Board Act, extended the time
limit referred to in that subsection by four months to allow for additional
Crown consultation with potentially affected Aboriginal groups, public
engagement, and an assessment of the upstream greenhouse gas emissions
associated with the Project;
Whereas the Governor in Council, having considered
Aboriginal concerns and interests identified in the Joint Federal/Provincial
Consultation and Accommodation Report for the Trans Mountain Expansion Project
dated November 21, 2016, is satisfied that the consultation process undertaken
is consistent with the honour of the Crown and that the concerns and interests
have been appropriately accommodated;
[130] Behind this is an explanatory note: Canada
Gazette, vol. 150, no. 50, December 10, 2016, pp. 4-23. The explanatory
note discusses the participation of Indigenous peoples before the National
Energy Board, the concerns they raised and other views. In assessing the impact
on Indigenous groups, the explanatory note says the following (starting on page
14):
Both social and
environmental issues raised by Indigenous groups were considered and addressed
through the NEB review process. The 157 conditions recommended by the NEB will
require Trans Mountain to implement all commitments it made through the review
process, and further implement mitigation measures for impacts that might
otherwise occur to people and the environment, including in relation to air
quality and greenhouse gases; water quality; soil, vegetation and wetlands;
wildlife and wildlife habitat; fish and fish habitat; and marine mammals.
Several of the conditions specifically address Aboriginal interests, such as
requiring the proponent to continue reporting on the availability and findings
of traditional use studies, hiring of Aboriginal monitors during construction,
and ongoing filing of Aboriginal engagement reports. There are also specific
conditions tied to concerns by the Coldwater Indian Band and Stó:lō
Collective.
With respect to rights associated with subsection 35(1) of
the Constitution Act, 1982, the Board concluded that, having considered
all the evidence submitted in this proceeding, the consultation undertaken with
Aboriginal groups, the impacts on Aboriginal interests, the proposed mitigation
measures, including conditions, to minimize adverse impacts on Aboriginal
interests, and Board imposed requirements for ongoing consultation, it was
satisfied that the Board’s recommendation and decisions with respect to the
Project are consistent with subsection 35(1) of the Constitution Act, 1982.
[131] These paragraphs may shed light on what the
Governor in Council had in mind when it approved the Project: submissions at
the hearing before the panel in these consolidated applications will be
required on that. Contextual materials such as the explanatory note may shed
light on what was considered by the Governor in Council: Re N.B.
Broadcasting Co., Ltd. and CRTC, [1984] 2 F.C.R. 410, 13 D.L.R. (4th) 77
(C.A.).
[132] In this regard, I note that none of the parties in their notices of
application or in their affidavits has alleged bad faith in the sense that an
explanatory note or any preambles or factual statements cannot be taken as
true. Statements such as these often enjoy a rebuttable presumption of
regularity and as best as I can tell no evidence has yet emerged that would
suggest otherwise: see Irvine v. Canada (Restrictive Trade Practices
Commission), [1987] 1 S.C.R. 181, 41 D.L.R. (4th)
429 at para. 38 and authorities cited therein; Ellis-Don v. Ontario
(Labour Relations Board), [2001] 1 S.C.R. 221, 194 D.L.R. (4th) 385.
[133] As well, it is apparent from these paragraphs in the explanatory
note that the Governor in Council was aware of the proceedings before the National
Energy Board and its Report. Just how aware is a matter on which submissions
should be made to the panel in these consolidated applications.
[134] Also of possible significance are an Amending Order to National
Energy Board Order CPCN OC-49 and an Amending Order to
Certificate of Public Convenience and Necessity OC-2 that
the Governor in Council approved: Canada Gazette, vol. 150, no. 50,
December 10, 2016 at pp. 23-247 and 248-501. These documents point to a body of
information that must have been before the Governor in Council. Just what
information is a matter on which submissions should be made to the panel in
these consolidated applications.
[135] Mr. Gardiner’s first affidavit points to other evidence of
consultation before the Order in Council was made but whether this was
considered directly or indirectly by the Governor in Council is unclear based
on the material before the Court on this motion. His affidavit also points to
post-Order in Council consultations. I have discussed the possible relevance of
this evidence elsewhere: Tsleil-Waututh Nation v.
Canada (Attorney General), 2017 FCA 116.
[136] There is now also the supplementary
affidavit from Mr. Gardiner that corrects certain mistakes in his original
affidavit and that adds additional information about consultative activities. Whether any of this was considered directly or indirectly by the
Governor in Council is unclear based on the material before the Court on this
motion.
[137] In various places in its submissions, the Tsleil-Waututh Nation
appears to misunderstand the limits of Rule 317. For example, it appears to be
under the misapprehension that Rule 317 can be used to access documents held by
government departments other than the Governor in Council. For the reasons
explained above, this is not so.
[138] Overall, I am not persuaded at this time that, aside from its
section 39 certificate, Canada has withheld information responsive to the Rule
317 request that must be produced. This can be tested by the Tsleil-Waututh
Nation on cross-examination.
[139] The Tsleil-Waututh Nation suggests that the fact that the Attorney
General has adduced a supplementary affidavit from Mr. Gardiner to fix errors
and omissions in disclosure shows that it and others have not taken care in the
disclosure process both under Rule 317 and overall. This submission overlooks
the scope and complexity of these proceedings. Although it is not desirable, at
the best of times mistakes can be made. I believe that the offering of the
supplementary affidavit shows that the Attorney General and her lawyers are
cognizant of their ethical responsibilities and their responsibilities as
officers of the Court and have stressed the importance of disclosure to those
that hold documents. The evidence disclosed by the supplementary affidavit does
not suggest to me otherwise. Below, at para. 151 of these reasons, I refer to a
further commitment the Attorney General has made concerning disclosure. I
conclude that the Attorney General is taking steps on an ongoing basis to
ensure that any disclosure she is required to give is complete and accurate.
[140] By itself, this is not at all dispositive of the Tsleil-Waututh
Nation’s motion for enforcement of its Rule 317 request. But it affords the
Court some comfort that a genuine effort has been made to ensure that, despite the
section 39 certificate, the material responsive to the Rule 317 request has
been produced.
[141] Under para. 7(3)(b) of this Court’s Order of March 9, 2017,
the Attorney General was obligated to produce “documents
before the Governor in Council leading up to its determination.” By
necessary implication, this was subject to section 39 of the Canada Evidence
Act if a certificate were to be filed. The Court is not satisfied on the
evidence before it that the Attorney General has breached this Order.
[142] To the extent that material supplied by the Tsleil-Waututh Nation
was not placed before the Governor in Council, counsel can make submissions to the
panel hearing these consolidated applications. To the extent that the material
was considered by others in various Ministries and only summaries provided to
the Governor in Council, the sufficiency of that is a matter for argument before
the panel hearing these consolidated applications.
(7)
The Tsleil-Waututh Nation’s
request for production of evidence from Canada
[143] As mentioned, I am not persuaded that there is
any evidence that has been improperly withheld under Rule 317. But, as I have
explained, except in the rare circumstance explained above, Rule 317 allows for
the obtaining of only materials relevant to the judicial review that were in
the possession of the administrative decision-maker and that it relied upon in
making the decision.
[144] Here, more materials—materials not obtainable under Rule 317—are
potentially relevant. As mentioned, quite aside from what the Governor in
Council had before it to support the reasonableness of its decision, if the
duty to consult has not been complied with overall, the decision of the
Governor in Council (i.e., its Order in Council) cannot stand. Thus,
evidence other than that which was before the Governor in Council is relevant
to this ground of review. This evidence is what I have called exceptional
evidence.
[145] In this case, should the Court make an order requiring Canada to
produce more evidence, including exceptional evidence? The Tsleil-Waututh Nation
asks for just that. As mentioned, it seeks documents relevant to the grounds it
has raised relating to the overall adequacy of Canada’s consultation with it
concerning the Project.
[146] In my view, on the material before me, such an order should not be
made.
[147] First, to some extent, the Tsleil-Waututh Nation appears to be
suggesting in its submissions that Rule 317 can be used to get exceptional
evidence. As discussed, except for the rare situation described in paragraph 116,
above, it cannot.
[148] Next, there is no such thing as a “production
order” for exceptional evidence under the Federal Courts Rules.
As I have explained above, exceptional evidence may be obtained through
cross-examination, by adducing an affidavit from a witness (which the
Indigenous applicants have done), by a motion under Rule 41 or by converting
the applications to actions under section 18.4(2) and section 28(2) of the Federal
Courts Act.
[149] Even if the Tsleil-Waututh Nation were to pursue these methods by
motion at this time, I would dismiss the motion.
[150] I understand that cross-examinations of Mr. Gardiner are about to be
conducted. Plenty of exceptional evidence, if admissible, may be obtained in
that way.
[151] Further, the Attorney General has made the
following commitment:
…Canada is
willing to informally assist [Tsleil-Waututh Nation] in obtaining relevant
consultation documents that may, by inadvertence, have been omitted from the
affidavit and supplementary affidavit of Timothy Gardiner. Should
[Tsleil-Waututh Nation] (or any other applicant) be aware of any such
documents, counsel for Canada would welcome being advised as soon as possible
in light of the impending deadline for completion of cross-examinations on
affidavits.
[152] As well, I am not persuaded at this time that
there is exceptional evidence that cannot be had as a result of
cross-examination. The Attorney General has filed evidence from Mr. Gardiner
that relates to Canada’s consultative activities both before and after the
Order in Council was made. This falls into the category of exceptional
evidence. The Indigenous applicants have filed evidence about their
consultative activities and Canada’s consideration or non-consideration of
things put to it and its responses or non-responses. All of this is also
exceptional evidence going to the overall issue of the duty to consult.
[153] The Tsleil-Waututh Nation complains that Canada has not produced all
of its evidence concerning its consideration of things put to it by the
Indigenous applicants. One answer to that is that gaps in evidence do not always
call for production orders. If there are gaps in the evidence Canada may suffer
for that if, on the law and the state of the imperfect evidentiary record, it
deserves to. In preparing their submissions for the panel hearing these
consolidated applications, the parties may wish to consider when the Court can
draw adverse inferences from missing evidence: see, e.g., Pfizer
Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 400
D.L.R. (4th) 723 at paras. 169-170 and authorities cited therein. If the
Tsleil-Waututh Nation put something important to Canada and there is a gap in
the evidence concerning what Canada did in reaction to it, Canada may have to
explain the gap. Absent evidence of Canada’s reaction, the panel may be driven
to find that Canada did not react. As well, I have already mentioned some of
the disadvantages that Canada might suffer as a result of its issuance of a
section 39 certificate.
[154] It is also worth mentioning that gaps in the
evidence concerning Canada’s responses do not automatically determine the consultation
issues against Canada. Errors and omissions in fulfilment of the duty to
consult and accommodate can be tolerated—but only to a certain point. Put
another way, compliance with the duty to consult and accommodate need not be
exacting. As this Court said in Gitxaala Nation (2016) (at paras.
182-183):
Canada is not to
be held to a standard of perfection in fulfilling its duty to consult. In this
case, the subjects on which consultation was required were numerous, complex
and dynamic, involving many parties. Sometimes in attempting to fulfil the duty
there can be omissions, misunderstandings, accidents and mistakes. In
attempting to fulfil the duty, there will be difficult judgment calls on which
reasonable minds will differ.
In determining whether the duty to consult has been
fulfilled, “perfect satisfaction is not required,” just reasonable
satisfaction: Ahousaht v. Canada
(Minister of Fisheries and Oceans), 2008 FCA 212, 297 D.L.R. (4th) 722, at paragraph 54; Canada v. Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209, at
paragraph 133; Yellowknives Dene
First Nation v. Canada (Minister of Aboriginal Affairs and Northern
Development), 2015 FCA 148, 474
N.R. 350, at paragraph 56; Clyde
River (Hamlet) v. TGS-NOPEC Geophysical Co. ASA, 2015 FCA 179, 474 N.R. 96, at paragraph 47.
[155] In support of its view that there are serious
gaps in the evidence offered by the Attorney General, the Tsleil-Waututh Nation
points to information requests it has made under the Access to Information
Act, R.S.C. 1985, c. A-1. It has directed these requests to Natural
Resources Canada, Transport Canada, Fisheries and Oceans Canada and Environment
and Climate Change Canada. These departments have each asked for significant
extensions of time to address the requests. Natural Resources Canada has sought
the longest extension: 510 days.
[156] However, the requests are of exceptionally broad scope and seek every
last crumb of information, even information that has absolutely no realistic
bearing on this matter.
[157] All four requests are similar. To illustrate their scope, here is
the request addressed to Natural Resources Canada:
Please provide:
any and all information, documents, or correspondence created between August
and November, 2016 and shared between Major Projects Management Office (Natural
Resources Canada) and Environment Canada, Fisheries and Oceans Canada, or
transport Canada officials/staff in relation to Trans Mountain Expansion
Project, including but not limited to: any meeting minutes and/or notes of representatives
that attended any meetings; any draft Order in Council materials or
information; any briefing notes that were prepared in advance of or after any
meetings; and any correspondence, including emails in August, September,
October, and November 2016 to or from Ms. Erin O’Gorman, Assistant Deputy
Minister, Major Projects Management Office, and/or related emails in August,
September, October, and November 2016 to or from Timothy Gardiner,
Director-General – Strategic Projects Secretariat, Major Projects Management
Office.
Also, please provide: emails, documents and/or briefing
notes related to any terms, conditions, migration measures or accommodation
measures proposed or considered by Natural Resources Canada in relation to the
Trans Mountain Expansion Project; any briefing notes to Minister Carr prepared
by Major Projects Management Office official(s)/staff or the Deputy Minister of
Natural Resources Canada in relation to the Governor in Council’s decision
under the National Energy Board Act and the Canadian Environmental Assessment
Act, 2012 for the trans Mountain Expansion Project; any briefing notes to the
federal cabinet, the prime minister, or the Governor in Council prepared by
Major Projects Management Office official(s)/staff, the Deputy Minister of
Natural Resources Canada, or Minister Carr in relation to the Governor in
Council’s decision for the Trans Mountain Expansion Project; and any briefing
notes, emails or other documents in relation to Canada’s engagement or
consultation with the Tsleil-Waututh National in relation to the Trans Mountain
Expansion.
[158] No doubt, some of this information is covered by
the section 39 certificate. No doubt some is already on the table. And no doubt
more will emerge from the cross-examinations. And at some point, materiality
and proportionality—not just bare relevance—must come to bear on the matter.
[159] I have mentioned Rule 3 above: the need to “secure
the just, most expeditious and least expensive determination of every
proceeding on its merits” I have also mentioned subsection 18.4(1) of
the Federal Courts Act: the Parliamentary commandment that judicial
reviews be heard and determined “without delay and in a
summary way.” And there is the admonition of the Supreme Court of Canada
in Hryniak, above.
[160]
These concerns are significant in this case.
[161]
Before the Court made its Order
of March 9, 2017 scheduling these consolidated applications, it circulated a draft
version of it to all parties. The draft contained the following recitals:
AND WHEREAS it is
appropriate that this Court issue an order to ensure that these proceedings are
conducted in an orderly, fair and prompt manner;
AND WHEREAS this Order is intended to give effect in these proceedings
to the principles set out in Rule 3 of the Federal Courts Rules,
SOR/98-106, which provides that proceedings are to be conducted in a manner
that secures the just, most expeditious and least expensive determination of
every proceeding on its merits;
…
AND WHEREAS concerning the issue of scheduling:
(a) without
expressing any prejudgment on the matter, a report, an Order in Council and a
Certificate have been made under the purported authority of legislation
advancing the public interest and themselves have been made in the public
interest, and all have effect until set aside; further, owing to the
substantial interests of all parties in these proceedings, the proceedings
should be prosecuted promptly; therefore, delays in the prosecution of these
consolidated matters must be minimized;
(b) therefore,
this Court shall set a schedule for the prompt and orderly advancement of these
consolidated proceedings and the schedule will be amended only if absolutely
necessary;
[162] No party took issue with these recitals.
[163] The Order of March 9, 2017 also scheduled the proceedings on an
expedited basis up until the filing of the overall electronic record and the
memoranda of fact and law. Here again, the schedule was circulated in advance
and no objections were received. By direction on May 29, 2017, this Court
sought the parties’ input on a schedule it suggested for the rest of the
proceedings and for the date of the hearing. Except for minor modifications,
the parties accepted the proposed schedule.
[164] And in their submissions on these motions, all parties urged the
Court to rule now on the motions so the schedule is not disrupted.
[165] For all these reasons, this Court will not delay or adjourn these
consolidated applications so that every last crumb of information sought by the
information requests, no matter how microscopic, can be gathered. Nor did I take
any party to suggest seriously that this should happen.
[166] The paramount consideration for this Court is whether the state of
the evidence is such that the spectre of immunization of public decision-making
looms. I am not persuaded of this here. Even without having the benefit of the
transcripts of cross-examinations and exhibits from the cross-examinations
before me, I can conclude that the evidentiary record here is as great or
greater than that which was before the Court in Gitxaala Nation (2016).
In Gitxaala Nation (2016), faced with substantially similar arguments
put by the Indigenous applicants, this Court was able to conduct a very
meaningful review, one that was cognizant of the gaps in the evidentiary record
and one that resulted in the quashing of the Governor in Council’s Order in
Council.
[167] Overall, this Court is satisfied that the record before it,
including the exceptional evidence, will be sufficient and any gaps can be
properly assessed and evaluated. This Court is not persuaded that its assistance
is needed to augment the evidentiary record before the reviewing court at this
time.
[168] As the parties enter the cross-examination phase of this litigation,
it goes without saying that the Court continues to stand ready to continue to
facilitate the parties’ progress towards a just, most expeditious and least
expensive determination of these consolidated applications on their merits.
E.
Disposition
[169]
The motion of the Attorney
General shall be granted. The supplementary affidavit of Mr. Gardiner shall be
admitted into the Electronic Record but the Attorney General shall first remove
the portions that the parties agree are irrelevant. Costs in the cause.
[170] The motion of the Tsleil-Waututh Nation is dismissed. Costs in the cause.
“David Stratas”
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