Docket: T-1190-16
Citation:
2017 FC 147
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 7, 2017
PRESENT: Madam Prothonotary Mireille Tabib
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BETWEEN:
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HABITATIONS
ÎLOT ST-JACQUES INC.
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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AND
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THE MINISTER OF
THE ENVIRONMENT
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Respondents
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ORDER AND REASONS
[1]
In the context of an application for judicial
review of an emergency order issued under the Species at Risk Act, SC, c.
29 (the SRA), the applicant requested the record related to the order, pursuant
to Rule 317 of the Federal Courts Rules. The respondents disputed two
aspects of the request for the record, namely, first, the request for the material
that was before the Governor General in Council when the order was adopted,
and, second, the request for the entire record compiled by the Minister of the
Environment, which the Minister relied on to recommend the emergency order.
[2]
The respondents object to the request for the material
consulted by the Governor General in Council on the grounds that it includes
confidences of the Queen’s Privy Council for Canada, within the meaning of
section 39 of the Canada Evidence Act, RSC, 1985, c. C-5. Despite the
absence of the formal certification in writing by the Clerk of the Privy
Council referred to in section 39, the applicant discontinued that part of its
request, satisfied by the evidence submitted by the respondents that the material
did indeed fall under the purview of section 39.
[3]
With respect to the record compiled by the
Minister in support of the Minister’s own decision, the respondents submit that
Rules 317 and 318 do not apply, since the material was not in the possession of
the Governor General in Council, the only tribunal whose decision is
contemplated by the request. Despite the valiant efforts of applicant’s
counsel, I agree with the respondents’ position.
[4]
The applicant’s counsel invested a lot of time
and effort in persuading the Court that the Minister’s record is relevant to
the application for review, even if it was not consulted by the Governor General
in Council. It is true that the relevance of the Minister’s record is not
apparent in this case, and that relevance issues are at the heart of the
majority of the Court’s case law regarding Rules 317 and 318. However, we must
not lose sight of the fact that Rule 317 sets out two criteria for its
application, namely possession and relevance (Detorakis v Canada (Attorney
General), 2009 FC 144). Both must be met to trigger the obligation to transmit
the material.
[5]
Given that I found that the material sought is
not in the decision-maker’s possession, I do not have to determine whether the
material would be otherwise relevant to the request, and will not elaborate any
further on the applicant’s arguments on that subject.
[6]
The wording of Rules 317 and 318 is clear:
material that can be requested by a party under Rule 317(1), and that the Court
can order forwarded under Rule 318(4), is material “that is in the
possession of a tribunal whose order is the subject of the application”:
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317
(1) A party may request material relevant to an application that is
in the possession of a tribunal whose order is the subject of the application
and not in the possession of the party by serving on the tribunal and filing
a written request, identifying the material requested.
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317
(1) Toute partie peut demander la transmission des documents ou des
éléments matériels pertinents quant à la demande, qu’elle n’a pas mais qui
sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de
la demande, en signifiant à l’office une requête à cet effet puis en la
déposant. La requête précise les documents ou les éléments matériels
demandés.
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(2) An
applicant may include a request under subsection
(1) in
its notice of application.
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(2) Un
demandeur peut inclure sa demande de transmission de documents dans son avis
de demande.
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(3) If
an applicant does not include a request under subsection
(1) in
its notice of application, the applicant shall serve the request on the other
parties.
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(3) Si
le demandeur n’inclut pas sa demande de transmission de documents dans son
avis de demande, il est tenu de signifier cette demande aux autres parties
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318
(1) Within 20 days after service of a request under rule 317, the
tribunal shall transmit
(a) a
certified copy of the requested material to the Registry and to the party
making the request; or
(b)
where the material cannot be reproduced, the original material to the
Registry.
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318
(1) Dans les 20 jours suivant la signification de la demande de
transmission visée à la règle 317, l’office fédéral transmet :
a) au
greffe et à la partie qui en a fait la demande une copie certifiée conforme
des documents en cause;
b) au
greffe les documents qui ne se prêtent pas à la reproduction et les éléments
matériels en cause.
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(2)
Where a tribunal or party objects to a request under rule 317, the tribunal
or the party shall inform all parties and the Administrator, in writing, of
the reasons for the objection.
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(2) Si
l’office fédéral ou une partie s’opposent à la demande de transmission, ils
informent par écrit toutes les parties et l’administrateur des motifs de leur
opposition.
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(3)
The Court may give directions to the parties and to a tribunal as to the
procedure for making submissions with respect to an objection under
subsection (2).
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(3) La
Cour peut donner aux parties et à l’office fédéral des directives sur la
façon de procéder pour présenter des observations au sujet d’une opposition à
la demande de transmission.
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(4)
The Court may, after hearing submissions with respect to an objection under
subsection (2), order that a certified copy, or the original, of all or part of
the material requested be forwarded to the Registry.
(Emphasis
added)
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(4) La
Cour peut, après avoir entendu les observations sur l’opposition, ordonner qu’une
copie certifiée conforme ou l’original des documents ou que les éléments
matériels soient transmis, en totalité ou en partie, au greffe.
(soulignés
ajoutés)
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[7]
The applicant’s counsel unequivocally reiterated
many times at the hearing that the one and only decision under review is that
of the Governor General in Council, in this case, the Emergency Order for
the Protection of the Western Chorus Frog (Great Lakes / St. Lawrence —
Canadian Shield Population) SORS/2016-211. More specifically, the applicant’s
counsel stated that the application for review does not apply to the Minister
of the Environment’s decision dated December 5, 2015, establishing that
the Western Chorus Frog (Great Lakes / St. Lawrence — Canadian Shield
population) was facing imminent threats to its recovery in the Bois de la
Commune, and recognizing the Minister’s duty to recommend that the Governor
General in Council make an emergency protection order for this species and its
habitat. The applicant’s counsel recognized that the Minister’s decision is a
decision that stands alone, which itself could be subject to judicial review,
but that the applicant is not seeking its review.
[8]
That said, the applicant submits that, since the
Minister’s decision is an essential condition for the Governor General in
Council to exercise the discretion conferred under section 80 of the SRA, the
Minister’s decision is an integral part of the same decision-making continuum
as the order. So, relying on the analysis in the decision Canada (Human
Rights Commission) v Pathak, [1995] 2 FC 455, the applicant submits that
the Minister’s proceedings merge with those of the Governor General in Council
and that the material in the Minister’s possession is therefore in the Governor
General in Council’s possession and could be forwarded under Rules 317 and 318.
[9]
The applicant’s argument is without merit. I do
not have to make a finding as to whether a positive decision by the Minister
pursuant to subsection 80(2) of the SRA is an essential triggering condition
for making an emergency order pursuant to subsection 80(1). However, even if
the Court, on the merits of the application, had to make this finding, it would
not lead to the results advocated by the applicant.
[10]
Note that Pathak involved a Human Rights
Commission’s decision that was based on an investigation report prepared by an
investigator appointed pursuant to the Canadian Human Rights Act, RSC,
1985, c. H-6. The trial judge had ordered that the documents consulted by the
investigator to prepare his report be produced, having determined that these
documents were part of the Commission’s record. The judge’s analysis was based
on a statement in Syndicat des employés de production du Québec et de l’Acadie
v Canada (Human Rights Commission), [1989] 2 S.C.R. 879, to the effect that
the investigator is not independent of the Commission, but an extension of the
Commission. On appeal, the majority of the Court of Appeal recognized that,
according to this analysis, what was in the investigator’s possession was
actually in the Commission’s possession, but indeed determined that, in that
case, the documents had not been consulted by the Commission and were not
relevant to the grounds raised in the judicial review.
[11]
The Supreme Court’s finding in Syndicat des
employés de production du Québec et de l’Acadie, repeated in Pathak,
to the effect that the inspector is not independent and acts as an extension of
the Commission, is based on a complete analysis of the structure of the Canadian
Human Rights Act. It is useful to note that the position of inspector as
well as the Commission itself are created and governed by this Act and that,
for the sole purposes of its application, it is the Commission that appoints
the investigator, and that the investigative powers exercised by the investigator
are, according to the Supreme Court’s analysis, delegated by the Commission.
[12]
By contrast, there is nothing in the SRA that
would liken the relationship between the Minister and the Governor General in
Council with the relationship between an investigator and the Human Rights
Commission. On the contrary, it is apparent that the Minister is independent of
the Governor General in Council and that the Minister’s role is different from
that of the Governor General in Council. A cause-and-effect relationship
between the decisions of two independent decision-makers does not mean that one
is presumed to be the extension of the other, or that it can support a finding
that the material of one is in the possession of the other.
[13]
At the hearing, applicant’s counsel relied on Chrétien
v Canada (Commission of Inquiry into the Sponsorship Program and Advertising
Activities), 2006 FC 720, as a basis for the proposition that the Court has
jurisdiction to order that material that was not before the decision-maker be
forwarded, if the request alleges a breach of procedural fairness or a
reasonable apprehension of bias and if it is established that the material sought
is relevant to the allegations raised. However, this decision does not help the
applicant in this case. A careful reading of this decision indicates that the
issue was limited to whether the obligation to transmit extended to material
which, although it was in the possession of the decision-maker, was supposedly
not considered by the decision-maker. In fact, all the controversy in that case
was based on the fact that the Commissioner had stated that he did not “take cognizance” of certain material even though the
evidence submitted to the Court suggested that he was aware of its existence
and that it was not clear whether it had been submitted to him. It was not
disputed that the material was “in the possession”
of the decision-maker, in the sense that it was accessible to the
decision-maker.
[14]
The situation here is entirely different: the
Governor General in Council and the Minister are independent, even though their
roles under the SRA are interrelated. There is no reason to believe or to find
that the material was “in the possession” of the
Governor General in Council or that the Governor General in Council had access
to the material compiled by the Minister, other than the material that was sent
with the recommendation that the order be adopted. Relevant or not, the
Minister’s records simply cannot be the subject of a request or an order under
Rules 317 and 318, because they are not in the possession of the Governor
General in Council, the tribunal that issued the order that is under review.
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