Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC 720

Date: 20060609

Docket: T-2086-05; T-2118-05; T-2121-05

Citation: 2006 FC 720

OTTAWA, Ontario, June 9, 2006

PRESENT :     The Honourable Mr. Justice Teitelbaum

BETWEEN :

T-2086-05

THE HONOURABLE ALFONSO GAGLIANO

Applicant

and

THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM

AND ADVERTISING ACTIVITIES

THE ATTORNEY GENERAL OF CANADA

Respondents

AND BETWEEN :

THE RIGHT HONOURABLE JEAN CHRÉTIEN

Applicant

and

THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

THE ATTORNEY GENERAL OF CANADA

Respondents

AND BETWEEN :

MR JEAN PELLETIER

Applicant

and

THE HONOURABLE JOHN H. GOMERY, IN HIS QUALITY AS EX-COMMISSIONER OF THE COMMISSION OF INQUIRY INTO THE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

I. Background

[1]                The applicants, the Right Honourable Jean Chrétien (Chrétien), the Honourable Alfonso Gagliano (Gagliano), and Mr. Jean Pelletier (Pelletier) separately applied for judicial review to quash the Phase I Report of the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Commission). Each applicant has requested various materials from the Commission under Rule 317 of the Federal Courts Rules. The Commission transmitted copies of certain materials that were in its possession and to which it did not object to providing to the parties. However, the Commission objected to the production of certain other materials requested by each applicant. In its view these other requested materials were not relevant, and it informed the parties in writing of the reasons for its objection as required under Rule 318(2). Chrétien, Gagliano and Pelletier presently bring separate motions under Rule 318 of the Federal Courts Rules for Orders that the Commission provide certified copies of the material they requested that the Commission has not transmitted to them and that the Commission has in its possession.

[2]                The applicants filed their motions separately, but on the parties' request, the Court heard their motions together. As the applicants' motions raise substantially similar issues, the Court presently provides one set of reasons that apply equally to all three motions.

II. The Legislative Framework

[3]                The applicable Rules related to materials in the possession of a tribunal read as follows:

III. Jean Chrétien's Submissions

[4]                Jean Chrétien seeks an Order that the Commission provide a certified copy of the following materials:

a.        All documents presented to the Commission at the Roundtables in Moncton, Québec, Toronto, Edmonton, and Vancouver;

b.       A summary of the discussions held during the Commission's Roundtables in Moncton, Québec, Toronto, Edmonton, and Vancouver;

c.        A copy of the emails to the Commissioner from the public that referred to Mr. Chrétien, Mr. Jean Pelletier or to the Prime Minister's Office, received between September 7, 2004 and October 31, 2005;

d.       A copy of the emails in response to the Commissioner's request to Canadians on August 25, 2005; and

e.        A copy of the submissions received from the public that referred to the role of Mr. Chrétien, Mr. Jean Pelletier or the Prime Minister's Office in the Sponsorship Program.

Jean Chrétien's Written Representations at para. 2.

Chrétien submits that the documents requested pursuant to Rule 317 are relevant, and should therefore be provided.

[5]                The Commission's tasks were divided into two separate but related Phases, and the applicant is only challenging the first, fact-finding Phase. However, he has requested materials from both Phase I and Phase II of the Commission's mandate, the latter Phase being the recommendations stage of the Commission. The e-mails received between September 7, 2004 and October 31, 2005 are materials that would have been received during Phase I. However, the materials related to the public's later e-mails and submissions, as well as all materials regarding the Commission's roundtable consultations are all materials from Phase II.

[6]                Chrétien submits that if a document may affect the decision that the Court will make on an application, then it is relevant to the application for judicial review, and must be produced by the Commission. It is argued that the leading case of Canada(Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 ["Pathak"]establishes that the relevance of documents requested must be determined in relation to the grounds of review provided in the originating notice of motion and the supporting affidavit.

[7]                The applicant recognizes that there is a general rule that only material which was before a tribunal is producible. As I note below, the respondents claim that the applicant is not entitled to several requested materials on the basis that the materials were not before the Commissioner when he wrote his Phase I Report. However, the applicant claims that there are several exceptions to the general rule. He contends that where a judicial review alleges lack of procedural fairness and the consideration of irrelevant matters, or the failure to consider relevant matters, an applicant is entitled to material that may have affected the decision of the administrative decision-maker: Deh Cho First Nations v. Canada(Minister of the Environment), [2005] F.C.J. No. 474 [Deh Cho First Nations]; Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No. 557 (T.D.) [Friends of the West]; Telus Communications Inc. v. Canada(Attorney General), [2004] F.C.J. No. 1587 (C.A.) [Telus]. Chrétien claims that he is entitled to the requested material because his application for judicial review is based in part on an argument that the Commission breached procedural fairness, and that the requested materials are relevant to this claim.

[8]                The applicant maintains that the materials from Phase II are relevant since there is evidence to support the claim that the Commissioner received submissions related to the Phase I fact-finding mandate during Phase II. He notes that there is an overlap in the timing of Phase I and Phase II, and that materials received during Phase II would have been before the Commissioner as he wrote the Phase I Report.

[9]                Chrétien submits that the Commissioner may have been influenced by the materials received for Phase II in writing Phase I. He argues that he should have been provided with an opportunity to respond to the materials received by the Commission for Phase II that may have been before him during Phase I. He highlights that he was not a party to the private roundtable consultations held by the Commissioner, and that e-mails received by the Commissioner in response to the Commission's call for public input were not disclosed to him.

[10]            The applicant also claims that parts of the Phase II materials made their way into the Phase I Report.

[11]            Chrétien presents evidence in support of his claim that the requested Phase II materials are relevant to the judicial review of the Commission's Phase I Report. He claims that the Commission received secret advice from Professor Donald Savoie, who was named special advisor to the Commissioner for the recommendations phase, (Phase II,) of the Commission's mandate. It is argued that the Commission may have received additional advice from other academics, and policy analysts during the private roundtable sessions. Chrétien complains that he was not provided with an opportunity to respond to any allegations by Professor Savoie or by participants in the roundtables. He also claims that Savoie's view that power had become concentrated in the Prime Minister's Office was reflected in the Phase I Report, and since there was no evidence supporting such a finding during the Phase I hearings, the submissions made in Phase II must have made their way back into Phase I.

[12]            The applicant similarly argues that he was not provided with a reasonable opportunity to respond to comments made by the public in response to the Commissioner's request on August 25, 2005 for public input, and that the public's views made their way back into Phase I. He claims that the Commissioner sought public input relating to his mandate, which the applicant claims was described by the Commission as addressing issues including:

The extent to which we can still identify individuals, whether at the political and administrative levels, who are responsible, answerable and accountable for the development and management of sponsorship initiatives or advertising activities or, more generally, of government programs.

"Invitation to Canadians - Consultation Paper Input" ["Invitation to Canadians"]

Chrétien submits that the above request amounted to an improper continuation of the Commission's fact-finding mandate during Phase II, and that the responses from the public must have influenced the Commissioner, since several factual findings made in Phase I cannot be supported on the basis of the Phase I public record.

[13]            Chrétien also claims that e-mails received by the Commission during Phase I are relevant. It is argued that the Commissioner received e-mails from the public that expressed their support for the Commissioner. These e-mails were allegedly referred to by the Commission's Press Secretary, François Perreault. The applicant claims that these e-mails were received during Phase I, were before the decision-maker when he wrote Phase I, and support the applicant's claim that the Commissioner became preoccupied with media coverage, and that for all of these reasons they are relevant and should be transmitted to the parties.

IV. Alfonso Gagliano's Submissions

[14]            Alfonso Gagliano seeks an Order that the Commission provide the following materials:

a.        Une copie de tout document afférant au mandat de M. François Perreault; à toute instruction qu'il aurait reçue relativement aux activités et audiences de la Commission d'enquête sur le programme de commandites et les activités publicitaires (Commission); aux entrevues accordées aux médias par le Commissaire les 16 et 17 décembre 2004;

b.       Tous les documents remis à la Commission aux tables rondes de la Commission à Moncton, Québec, Toronto, Edmonton et Vancouver;

c.        Une copie des courriels du public adressés à la Commission qui faisaient référence à l'honorable Alfonso Gagliano, reçus entre le 7 septembre 2004 et le 21 octobre 2005 inclusivement;

d.       Une copie des soummissions [sic] du public en référence au rôle de l'honorable Alfonso Gagliano ou d'autres ministres dans les activités de commandites;

e.        La liste des sujets qui devaient être traités lors des consultations publiques qui a été retirée du site internet de la Commission

Alfonso Gagliano's Motion Record at 31 [emphasis removed].

[15]            Gagliano adopts Chrétien's submissions and the submissions of Jean Pelletier. He also maintains that the materials from Phase II and the requested e-mails are relevant as they will assist him in determining whether the Commission's counsel, who are allegedly the alter-ego of the Commissioner, received materials regarding the applicant that were not offered into evidence. The applicant also claims that the public consultations had the result of continuing to hold him to public opprobrium. He claims that they created a more visible opportunity at which it could be said that he was responsible for the situation.

[16]            It is Gagliano's submission that the materials related to the Commissioner's interviews to the media are relevant since the Commissioner made statements that lead to a reasonable apprehension that the Commissioner had reached his conclusions before all of the evidence had been adduced.

[17]            The materials related to François Perreault are said to be relevant because Perreault wrote a book entitled Inside Gomery, and the preface to the book was written by Gomery. The book claims to reveal the inside workings of the Commission. The materials are also said to be relevant because Perreault allegedly told the press that Canadians are supporting Gomery. Gagliano claims that it is important to learn about the exact mandate that was conferred on the Commission's Press Secretary, that the materials support the applicant's claims that the Commissioner's conduct raises a reasonable apprehension of bias, and that the Commission breached his procedural rights.

V. Jean Pelletier's Submissions

[18]            Jean Pelletier presently seeks an Order that the Commission provide the following materials:

a) Une copie de tout courriel ou autre correspondance reçu et/ou sollicité par la Commission relative ou rôle du cabinet du Premier ministre et de son Chef de cabinet;

b) Une copie de tout document afférent au rapport ou tout commentaire que monsieur François Perreault, porte-parole de la Commission, fit au commissaire relativement au rôle du cabinet du Premier ministre ou de son Chef de cabinet; au mandat de monsieur Perreault; à toute instruction qu'il aurait reçue relativement aux activités et audiences de la Commission; aux entrevues accordées aux médias par le Commissaire les 16 et 17 décembre 2004; les transcriptions et preuves documentaires afférentes à la présente demande;

Jean Pelletier's Written Representations, at para. 19.

[19]            Pelletier adopts the submissions of the other applicants. He accepts that Pathak, above, establishes when documents are considered relevant for the purposes of Rule 317. He also provides jurisprudence demonstrating that requested documents may be relevant, even if they were not necessarily before the Commission or considered by the Commissioner, when it is alleged that a Commission's report was biased and incomplete: Canadian Broadcasting Corp. v. Paul, 2001 FCA 93 at para. 65 [Paul]; Friends of the West, above; Lindo v. Royal Bank 162 F.T.R. 142, [1999] F.C.J. No. 85, at para. 14 [Lindo].

[20]            Pelletier also submits that the Federal Court has recently affirmed in Cooke v. Canada (Correctional Services), [2005] F.C.J. No. 886, 2005 FC 712 at para. 23, the principle found in Pathak, above, that relevant material includes materials which may affect the decision that the Court may make.

[21]            Pelletier submits that the Commissioner's mandate did not permit him to engage in public consultations except during Phase II of his report. He follows both Chrétien and Gagliano by referring to the comments allegedly made by François Perreault indicating that the Commissioner had received e-mails from the public before the Commissioner officially solicited e-mails from the public as part of his Phase II mandate. Pelletier argues that the comments by Perreault suggest that the Commissioner solicited and received communications regarding the role of the Prime Minister's Office before he completed Phase I of his Report. He then relies on extracts from Inside Gomery to support his belief that the Commissioner had considered the e-mails that he received.

[22]            Pelletier alleges that these communications support his argument that the Commissioner's decision is tainted by a reasonable apprehension of bias. He claims that the requested materials are relevant, and that since he carefully tailored his request for the materials, he cannot be accused of being engaged in an improper fishing expedition.

[23]            Turning to the materials related to François Perreault, Pelletier is of the view that they are relevant since it is important to the applicant to learn of the instructions received by Mr. Perreault, and to understand his role as Commission spokesperson. He asserts that Inside Gomery reveals that the Commissioner and Perreault worked together to heighten the visibility of the Commission. Pelletier's argument is that the Commission had a duty to act fairly and to avoid encouraging any publicity that would harm his reputation. The Commissioner and Press Secretary's active efforts to increase media coverage of the Commission allegedly raise issues of natural justice. Pelletier also claims that Mr. Perreault's responsibilities included managing the evidence, which raises issues of procedural fairness.

[24]            Pelletier stresses that the heightened media profile of the Commission and the treatment of the evidence are both important issues, since they raise issues of natural justice and procedural fairness. He asserts that natural justice and procedural fairness are essential during Commissions to protect individuals whose reputations may be needlessly damaged when they testify before Commission: Canada (Procureur général) c. Canada(Commission d'enquête sur le système d'approvisionnement en sang au Canada), [1997] 3 R.S.C. 440; Morneault c. Canada (Procureur général), [2001] 1 C.F. 30. It is therefore submitted that the materials related to Mr. Perreault's work for the Commission are relevant.

VI. The Attorney General of Canada's Submissions

[25]            The Attorney General of Canada (AGC) argues that the applicants are engaging in improper fishing expeditions under Rule 317. He explains that a request made under Rule 317 is different from discovery of documents in an action. A Rule 317 request must be focused, and the AGC notes that the Court has rejected overly broad requests which amount to attempts to effect discovery: Bradley-Sharpe v. Royal Bank of Canada, 2001 FCT 1130, at paras. 23-25; Atlantic Prudence Fund Corp. v. Canada (M.C.I), [2000] F.C.J. 1156, at para. 11; Paukuutit, Inuit Women's Assn. v. Canada, 2003 FCT 165 (Proth.) at para. 15.

[26]            The AGC agrees that Pathak, above, makes it clear that relevance for the purpose of Rule 317 is determined by having regard to the notice of application, the grounds of review invoked by the applicant, and the nature of judicial review. He also maintains that normally an application for judicial review is conducted on the basis of material that was before the decision-maker at the time the decision was made, and that the Court therefore generally only orders the transmission of documents under Rule 317 that were before the decision maker at the time the decision was made: Pathak, above, at para. 23; Hiebert v. Canada (Correctional Service), [1999] F.C.J. No. 1957, affirmed by the Federal Court of Appeal: [2001] F.C.J. No. 297, application for leave to appeal to the Supreme Court of Canada Dismissed: [2001] S.C.C.A. No. 227.

[27]            The Attorney General of Canada submits that the Commission's responses to the applicants' Rule 317 requests were appropriate for three reasons. First, each request is allegedly overly broad and amounts to a fishing expedition undertaken in an effort to find material to build the applicant's case. Second, the Commission's responses to the Rule 317 requests were allegedly appropriate since the material sought was not part of the evidence filed in the public record, and therefore was not considered by the Commission. Third, the AGC argues that the material requested by each applicant is not relevant to the grounds of the judicial review.

A. The requests were drafted in overly broad terms

[28]            The AGC notes that Chrétien's request for "all documents" presented to the Commission at the roundtable appears inconsistent with the requirement that Chrétien had to make a focused request for materials.

[29]            The AGC similarly claims that Gagliano's request for "all" documents related to certain themes is simply too broad a request. As noted above, Gagliano requests:

Une copie de tout document afférant au mandat de M. François Perreault; à toute instruction qu'il aurait reçue relativement aux activités...; Tous les documents remis à la Commission aux tables rondes de la Commission » [emphasis added].

The AGC maintains that Gagliano's request for all e-mails referring to him and for copies of submissions made with respect to him and to other ministers with respect to sponsorship activities are also too broad.

[30]            The AGC makes similar arguments with respect to Pelletier's request for "all" e-mails, and "all" documents. As noted above, Pelletier requests:

Une copie de tout courriel ou autre correspondance reçu et/ou sollicité par la Commission relative ou rôle du cabinet du Premier ministre et de son Chef de cabinet; Une copie de tout document afférent au rapport ou tout commentaire que monsieur François Perreault, porte-parole de la Commission,... à touteinstruction qu'il aurait reçue relativement aux activités et audiences de la Commission [emphasis added].

[31]            The AGC claims that the applicants' broad requests are impermissible as they fail to precisely identify the material being sought, and amount to impermissible "attempts to scour for any information within the file or files of the Commission because she is dissatisfied or displeased with the decision of the Commission": Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia - Letourneau Commission) (1997), 130 F.T.R. 183, at para. 8; Bradley Sharpe v. Royal Bank of Canada, [2001] F.C.J. No. 1561, 2001 FCT 1130, at para. 24.

B. The material is irrelevant since it was not in the public record and not considered by the Commissioner

[32]            The AGC highlights that the Commissioner stated that he only considered evidence in the public record in writing his Phase I Report:

A vast quantity of documentary evidence was put into evidence and forms part of the record of the Commission. A list of the exhibits, many of which are books of documents, is attached as Appendix F. As Commissioner, I have systematically avoided taking cognizance of any document or evidence which has not been produced into the record at the public hearings, although I am conscious that Commission counsel have had access to many documents that I have not seen and have had meetings and discussions with witnesses and other persons on matters that are not part of the evidence that I have heard. Commission counsel have respected my expressed wishes that any information acquired in this fashion would not be communicated to me. This Report has been written solely on the basis of the evidence in the public record.

Chapter I: Introduction, Phase I Report, at 5.

[33]            The AGC maintains that there is no evidence that casts doubt on the above statement. It is therefore submitted that the Commission correctly rejected the requests from the parties for materials that were not on the public record on the basis that the Commissioner did not take the requested material into account. The AGC claims that the Commissioner's declaration that he did not consider evidence not contained in the public record enjoys a strong presumption of truth: Stevens v. Conservative Party of Canada, [2004] F.C.J. No. 451, 2004 FC 396, at paras. 15-22.

C. The material is not relevant to the grounds of the judicial review

[34]            The AGC also claims that the relevancy of the requested materials must be considered against the grounds of review alleged by the applicants, and that such an analysis reveals that the requested materials are not relevant in any of the applications.

[35]            The AGC claims that the material requested by the applicants is not relevant to any of the three main grounds of review alleged by each party. The applicants each allege that the Commission erred in findings of fact. The AGC submits that this argument must be based on the evidence on record, and that the requested material is irrelevant on this point. Each applicant alleges that his right to procedural fairness was breached during Phase I of the Commission. The AGC argues that the requested materials will not assist the applicantsin making this argument, and that it can be made by referring exclusively to materials available from the public record. Finally, the applicants each raise the argument that a reasonable apprehension of bias existed on the part of the Commissioner. While the applicants may wish to examine the requested materials in order to then argue that they influenced the Commissioner's fact finding report, the AGC maintains his earlier argument that there is no reason to doubt the Commissioner's statement that he only relied on materials found in the public record to reach his decision.

VII. The Commission's Submissions

[36]            The Commission maintains that it was justified to object to the applicants' request for materials. The Commission categorizes the purpose of Rule 317 as preventing the parties from engaging in a fishing expedition for information. It asserts in the same manner as the AGC had, that the production of documents in a judicial review application is more restricted than in the context of an action, and claims that it is not under a duty to prepare new documents: Quebec Ports Terminals Inc. v. Canada (Labour Relations Board), 1993 CarswellNat 815 (F.C.A.), at paras. 8-10.

[37]            The Commission submits that, in general, the only documents available to the applicants are those which were available to the decision-maker at the time of rendering his decision. The Commission relies on several cases in support of this proposition: S.C.F.P. Local 301 c. Québec (Conseil des services essentials), 1997 CarswellQue 82 (C.S.C.) paragr. 75; Farhadi v. Canada (M.C.I.), [1998] 3 F.C. 315, [1998 F.C.J. 381, (conclusion not raised on appeal at [2000] F.C.A. No. 646); Ominayak v. Lubicon Lake Indian Nation Election (Returning Officer), [2000] F.C.J. No. 2056; Nametco Holdings Ltd. v. Canada (M.N.R.), [2002] F.C.J. No. 592, 2002 FCA 149; Hoeschst Marion Roussel Canada v. Canada (Attorney General), [2004] F.C.J. No. 633, 2004 FC 489.

[38]            The Commission's counsel argues that the Commissioner clearly indicated that he only relied on the evidence in the public record in writing the Phase I Report, and that the Commissioner made it clear that at all times he considered the two phases of his mandate to be distinct. The Commissioner referred to the two Phases in his Opening Statement of the Phase I Report as being "two separate, but related, functions": Appendix C: Opening Statement, Phase I Report, at 531.

[39]            The Commission cites Pathak, above, and Stevens, above, in support of its reiteration of the argument presented by the AGC that the statement by the Commissioner claiming that he only considered materials on the public record benefits from a strong presumption of truth. The argument is further developed when the Commission claims that although Commissioner Gomery was not acting as a court judge during the Commission, he had the intellectual ability and training of a judge and was therefore able to determine relevancy of evidence and not take discarded elements into account. The Commission relies on the Supreme Court's decision of Société d'énergie Foster Wheeler ltéé v. Société intermunicipale de gestion & d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456, [2004] S.C.J. No. 18, 2004 SCC 18">2004 SCC 18, at paras. 46 at 47 :

46. The City was unhappy with this part of the Court of Appeal's decision, as the City still wished to prohibit the production of documents it claimed to be covered by professional secrecy. The City opposed even allowing the trial court to examine these documents.

47. The City's attitude is without doubt motivated by a cautious strategy which seeks to avoid allowing the trial judge to be influenced by the content of documents the City alleges are inadmissible. These concerns, while common, are unjustified. We must remember that every day judges must rule on the admissibility of evidence that they must inspect or hear before excluding, and that this duty is an indispensable part of their role in the conduct of civil or criminal trials. Judges understand that they must disregard any evidence that they deem inadmissible and base their judgments solely on the evidence entered into the court record.

[40]            Applying the above principles to the present requests for materials, the Commission submits that the documents requested by the applicants are not part of the public record, were not considered by the Commissioner, and therefore are not relevant.

A. E-mails Received During Phase I

[41]            The Commission submits that there is nothing in the applicants' allegations supporting their claims that the Commission "solicited" e-mails other than in the context of Phase II of the inquiry. It also argues that even if it did receive e-mails from the public during Phase I, they were not considered by the Commissioner, and their existence does not in itself create bias. It is maintained that the applicants' requests for these e-mails were properly refused since these documents had no effect on the evidence filed, and they relate to matters that took place outside the scope of the Commission.

B. Information Related to FrançoisPerreault

[42]            The Commission argues that the documents related to Perreault and his book Inside Gomery had no effect on the evidence filed, and relate to matters that took place outside the scope of the Commission. The Commission submits that the materials requested relating to Perreault have nothing to do with the preparation of the Phase I Report. It claims that the media coverage of the Commission, the role played by Perreault, and the instructions that he may have received from the Commissioner did not deprive the applicants' of their ability to dispute certain evidence before the Commission or to make submissions as to their relevancy.

[43]            The Commission claims that the applicants cannot invoke procedural fairness solely as a means of attempting to have access to documents that otherwise would not be made available to them.

C. Phase II Materials

[44]            The e-mails and submissions received in response to the Commissioner's roundtable sessions were part of Phase II of the Commission's mandate, and it is alleged that they were not connected to Phase I. It is submitted that these materials were not considered by the Commissioner in writing his Phase I Report, and copies of these materials were therefore properly denied to the applicants.

[45]            The Commission claims that the Phase II consultations were part of a separate process that was designed to assess whether the system in place "allows for the determination of who is answerable for a given action or decision".

Commission's Memorandum of Fact and Law (Chrétien, T-2118-05) at para. 44.

[46]            The Commission maintains that the applicant will either succeed or fail in demonstrating that the Commissioner could not have made his comment related to the concentration of power in the Prime Minister's Office ("PMO") based on the evidence submitted during Phase I of the Commission's mandate. It claims that the analysis does not need to consider materials from the Phase II roundtables or the previous writings of Professor Savoie. The Commission argues that since the Commissioner's reference to power in the PMO was the only grounds upon which Chrétien justified his request to have access to materials relating to the roundtables and the public submissions, he has failed to demonstrate that the Court should depart from the general rule that only documents that were before the Commissioner when he wrote his report must be produced.

[47]            The Commission claims that the applicants' allegations that the Commissioner made erroneous findings of fact, and that their procedural rights were breached can be determined by reference solely to evidence in the pubic file. It is also argued that although the applicants allege bias on the part of the Commission, they fail to demonstrate a real and identifiable bias.

VIII. Analysis

[48]            The starting point in determining whether copies of the requested materials should be provided is Pathak, above. It has been described as a "leading case in the interpretation of Rule 317": Ecology Action Centre Society v. Canada (Attorney General), [2001] F.C.J. No. 1588, 2001 FCT 1164, at para. 6; See Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc., 35 C.E.L.R. (N.S.) 1, 183 F.T.R. 267, [2000] F.C.J. No. 910, at para. 30.

[49]            According to Pathak, above, and subsequent jurisprudence, documents are relevant for the purposes of Rule 317 if they may affect the decision that the reviewing court will make. The relevance of requested materials is determined by having regard to the notice of application, the grounds of review invoked by the applicant, and the nature of judicial review.

[50]            It is trite law that in general only materials that were available to the decision-maker at the time of rendering a decision are considered relevant for the purposes of Rule 317. However, the jurisprudence also carves out exceptions to this rule. The Commission's own written representations indicate that, "An exception exists where it is alleged that the federal board breached procedural fairness or committed jurisdictional error": David Sgayias et al., Federal Practice, (Toronto: Thomson, 2005) at 695, reproduced in the Commission's Memorandum of Fact and Law (Chrétien, T-2118-05) at para. 24. The above comment is clearly supported by jurisprudence which indicates that materials beyond those before the decision-maker may be considered relevant where it is alleged that the decision-maker breached procedural fairness, or where there is an allegation of a reasonable apprehension of bias on the part of the decision-maker: Deh Cho First Nations, above; Friends of the West, above; Telus, above; Lindo, above.

[51]            The applicants raise grounds of review that fall within the exceptions that permit the transmission of materials beyond those that were before the decision-maker. However, the Court is not required to provide the applicants with the requested materials merely because they raise issues of procedural fairness. Rule 318(3) states that a Court "may" order that "all or part of the material requested be forwarded to the Registry" [emphasis added]. The wording is permissive, but leaves the Court with full discretion over whether or not to order the transmission of requested materials.

[52]            It is the Court's view that when a party alleges a breach of procedural fairness, the Court still determines relevancy of the requested materials by reference to the applicant's notice of application, the grounds of review invoked by the applicant, and the nature of judicial review as directed by Pathak, above.

A. List of subjects posted on the Internet

[53]            Gagliano seeks transmission of a copy of a list of subjects that were to be examined by the Commission during its consultations. The requested list was allegedly posted on the Commission's website but was later removed from the site. The Court has not received an adequate explanation as to how this material could be relevant. Gagliano wishes to view the materials that were formerly posted online to determine whether they provide further grounds for his allegations of reasonable apprehension of bias on the part of the Commissioner and breaches of procedural fairness. However, under Rule 317 of the Federal Courts Rules, relevancy must be established by the applicant to demonstrate that he is entitled to them. Documents requested under Rule 317 are not transmitted first so that a party may then determine whether they are relevant. The Rule has been crafted in this fashion to avoid rewarding applicants for engaging in improper fishing expeditions.

[54]            The applicant has requested these particular materials without providing any evidence whatsoever as to their relevancy. The assertion that the web materials may be relevant is pure speculation. Since the Court has not received an adequate explanation as to the relevancy of materials that were posted and later removed from the Commission's website, the Court is not prepared to order that the Commission transmit them to Gagliano.

B. Materials from Phase II

[55]            The applicants seek a variety of materials from Phase II of the Commission, including documents presented at the Commission's roundtables, a summary of discussions held during the roundtables, and copies of e-mails in response to the Commissioner's Invitation to Canadians. The applicants note that the Phase II consultations began before the Commissioner had completed Phase I of his report. The complaint is that the Commissioner may have heard matters in private hearings in Phase II that addressed issues that were within the sole purview of Phase I of the Commission. They are concerned that elements from the Phase II consultations may have influenced the Commissioner and may have made their way back into the Phase I decision. The applicants argue that materials found in Phase II are relevant since they will support the claim that Phase I findings were made without regard to the evidence. It is also argued that the Commissioner sought information during Phase II that fell entirely within the realm of Phase I, and that it was unfair for the Commissioner to have heard these arguments during Phase II without providing the applicants an opportunity to respond.

[56]            The applicants principally relied on two arguments to show how Phase II materials are relevant to the judicial review of Phase I. The first argument, which was presented by Chrétien, is that that during the Phase II consultations, the general public was invited to comment on matters which, in Chrétien's view, fell strictly within the boundaries of Phase I. The second claim is that the Phase I Report contains findings and statements which allegedly demonstrates that the views of Professor Savoie, other participants in the Phase II roundtables, and the general public made their way into the Phase I Report.

[57]            Chrétien claims that the public was invited to provide additional materials during Phase II that went to the Commission's fact-finding role which should have fallen exclusively within Phase I of the Commission. He bases this claim on a passage from the Commissioner's Invitation to Canadians:

[T]he extent to which we can still identify individuals, whether at the political and administrative levels, who are responsible, answerable and accountable for the development and management of the sponsorship initiatives or advertising activities, or, more generally, of government programs.

The applicant argued that this passage reveals that the Commissioner was still engaged in fact-finding exercises during Phase II.

[58]            When the above passage is considered in its full context, it becomes clear that it was not an invitation to the public to assist the Commissioner in his fact-finding role, which the parties agree should have fallen exclusively within Phase I. The Invitation to Canadians clearly sets out that the Commissioner is seeking public input to assist him in answering the question, "What should be done to improve accountability in the government of Canada?" [emphasis added]. The general request does not ask the public what happened or what should have been done; it asks the public to provide input for what can be done in the future.

[59]            When the excerpt relied upon by Chrétien is read within the context of the above introductory remarks, it becomes clear that the request was not designed to seek information to single out individuals, or to continue the fact-finding efforts of Phase I. Moreover, the passage as a whole reads:

In addition, evidence at the public hearings raised a number of issues related to ministerial accountability, including:

● The extent to which we can still identify individuals, whether at the political and administrative levels, who are responsible, answerable and accountable for the development and management of the sponsorship initiatives or advertising activities, or, more generally, of government programs.

● The extent to which Parliament was or should have been informed as the sponsorship/advertising initiatives took shape.

● The role Parliament played or should have played in the sponsorship/advertising initiatives.

● The role that career officials played or should have played in the sponsorship/advertising initiatives.

● The degree to which administrative and financial responsibility for delivering government initiatives should fall on career officials.

● Whether internal audit reports should be made public as they are prepared.

[emphasis added]

I agree with the Commission's counsel on their point that the excerpt was intended to assess whether governance structures allow for the determination of who is answerable for decisions.

[60]            Finally, immediately before the website's online questionnaire that forms part of the Invitation to Canadians document, the Commission provided a paragraph including the following instruction:

We ask Canadians to look to the future, to accountability mechanisms that they would like to see introduced or strengthened and to the role of ministers, their members of Parliament and career officials in the management of government programs. [...] The responses received will be valuable input to Justice Gomery in formulating his final recommendations.

This instruction is followed by a list of questions which ask what "should" happen in the future. The only exception is the open-ended question, "Is there anything else you would suggest to Justice Gomery in pursuing his mandate?" This question, read by itself or in the context of the other questions, simply cannot be interpreted as inviting the general public to make comments relating to the Commission's fact-finding activities. It is clear that the "mandate" referred to in this question is the Commission's obligation to develop policy recommendations.

[61]            In short, the reference relied upon by Chrétien, when considered by itself, as well as more properly within the context of the Commission's Invitation to Canadians clearly asked the public to provide input that could be used by the Commissioner to develop policy recommendations. The Commissioner did not offer the public with an opportunity to provide input that could have been used to assist him with the Phase I fact-finding portion of the Commission's inquiry.

[62]            The applicants argue that not only was there no evidence on the record of Phase I to support several key factual findings made by the Commission, but that the evidence suggests that the Commissioner may have relied on materials that were before him as part of Phase II in order to make findings for Phase I. By way of example, Gagliano submits that while all of the witnesses in Phase I stated that the term "program" has a particular meaning within government, the Commissioner's determination as to the meaning of the word "program" was likely influenced by public comments received during Phase II.

[63]            Chrétien also claims that the Commissioner's statement related to the concentration of power in the Prime Minister's Office ("PMO") provides evidence that materials found in Phase II made their way back into Phase I. The sentence at issue can be found at page 434 of the Phase I Report:

The concentration of power in the Office of the Prime Minister is a phenomenon of modern Canadian government which has been noted with concern by academics and commentators.

[64]            Chrétien's counsel argues that while there was no evidence on the public record to support any of the claims found in the above sentence, Professor Savoie has made similar comments in his publications, and comments to the same effect can be found in the Phase II Report.

[65]            The problem with these arguments is that they are entirely speculative in nature. Gagliano's claim that the Phase II materials contributed to the Commissioner's finding regarding the meaning of the word "program" is not supported by any evidence. In the Court's view, the allegations arising from the Commissioner's comments regarding the concentration of power in the PMO are similarly too speculative. The Commissioner's comment does not explicitly claim to be based on any materials based on Phase II. The Commissioner's reference to "academics and commentators" is broadly worded; it does not attribute the views that are mentioned in the sentence to Professor Savoie, or to any other specific academic who may have participated in the Phase II roundtables.

[66]            The applicants are asking the Court to make an inference as to the source of this comment which is only one of several possible inferences that could be made. While the applicants claim that this comment is unsupported by anything in the public record during Phase I, this is an issue that may be argued before the Applications Judge.

[67]            The single sentence regarding the concentration of power in the PMO does not reveal in a convincing manner that the Commissioner may have heard arguments that would have influenced his fact-finding Phase, or that he considered materials from Phase II when writing Phase I. The Court has not heard any arguments beyond mere speculation to suggest that the Commissioner considered materials received during Phase II to make findings within Phase I, or that he requested input during Phase II that were Phase I issues.

[68]            The only clear statement that the Court has received as to the interplay between materials received during Phase II and the Commission's work in Phase I was provided by the Commissioner himself. The Commissioner stated that the Phase I Report was written solely on the basis of evidence in the public record. For the sake of clarity, I once more reproduce the Commissioner's introductory comments for the Phase I Report:

As Commissioner, I have systematically avoided taking cognizance of any document or evidence which has not been produced into the record at the public hearings, although I am conscious that Commission counsel have had access to many documents that I have not seen and have had meetings and discussions with witnesses and other persons on matters that are not part of the evidence that I have heard. Commission counsel have respected my expressed wishes that any information acquired in this fashion would not be communicated to me. This Report has been written solely on the basis of the evidence in the public record.

[69]            It is the view of the Court that this clear statement by the Commissioner creates a strong presumption that he only considered material which can be found in the public record. Unless there is clear and convincing evidence to the contrary, when a Commissioner states that he did not use certain material, then that presumption must hold.

[70]            Counsel for the applicants claimed that the Court should order the transmission of documents received as part of Phase II to the parties, and that the weight to be accorded to these materials can be determined at a later date. The problem with this argument with respect to the Phase II materials is that the applicants have not provided any clear and convincing evidence to support their claims that Phase I issues formed part of the Commission's Phase II.

[71]            As noted above, Phase II was intended to be a separate, albeit related exercise to Phase I. In Pathak, above, the Federal Court of Appeal wrote at paragraph 21 that it did not wish to create, "a limitless legal fiction merging the mostly separate identities of the investigator and the Commission." While the present situation is somewhat distinguishable, as it could be argued that the Commissioner is both investigator and decision-maker, the Court is still concerned that it has been asked by the applicants to create a legal fiction by merging Phase I and Phase II of the Commission. The Court has been asked by the applicants to allow in documents from Phase II. This argument essentially asks the Court to merge the mostly separate mandates of Phase I and Phase II of the Commission. But the Commissioner wrote that he treated the two phases as separate, and absent clear and convincing evidence that the two Phases were merged by the Commission itself, the Court sees no reason to merge them. At this time, the Court sees no reason to merge the largely separate phases of the Commission's mandate for the purpose of finding Phase II materials relevant for a judicial review of the Commission's Phase I Report.

[72]            In sum, the applicants have failed to provide clear and convincing evidence to rebut the presumption that the Commissioner did not consider Phase II materials in writing his Phase I Report. The requested materials from Phase II were not part of the public record, and it is not disputed that the Phase II materials should not have been considered by the Commissioner while writing Phase I. The Commissioner's statement clearly indicates that he did not consider Phase II materials in Phase I, and the Court has no reason to doubt the veracity of the Commissioner's statement as it relates to the use of Phase II materials. The applicants also claimed that they should receive copies of Phase II materials since they may have included materials that went to Phase I. The argument is that the applicants should have been provided an opportunity to respond to these submissions. But the Court has found above that the applicants have failed to provide anything beyond mere speculation to support the claim that Phase II materials may have included information pertaining to, or used for Phase I. It follows that the Phase II materials are not relevant and were properly excluded. Thesedocuments are not relevant for the purposes of Rule 317 since if they were admitted, they would not affect the decision that the reviewing court might make.

C. E-mails Received From September 2004 Through October 2005

[73]            The applicants argue that the e-mails received by the Commission during Phase I are relevant and that copies of these materials should therefore be transmitted to them. They rely on comments made by François Perreault that confirm that the Commission received e-mails during Phase I. They claim that the respondents have not clearly denied that the Commissioner may have seen the e-mails received by the Commission during Phase I, and since it can be inferred that they were before him they must be treated as relevant. It is alleged that the e-mails support their allegations of a reasonable apprehension of bias on the part of the Commissioner and of breaches of procedural fairness.

[74]            As a preliminary matter, I find that there is nothing before the Court to support any allegation that the Commission solicited the e-mails it received during Phase I prior to the Commissioner's Invitation to Canadians. Had the Commission solicited these e-mails from the public and not provided the applicants with an opportunity to respond to them, then issues of procedural fairness would clearly be raised. However, absent evidence pointing to a request for comments from the public, the Court assumes for the purpose of this motion that these e-mails were received without having first been requested.

[75]            These unsolicited e-mails are still relevant for the purposes of Rule 317 and must be transmitted to the parties. These e-mails were received during Phase I and presumably regard the Commission's Phase I mandate. While the Commissioner claimed that he did not take "cognizance" of these e-mails in writing the Phase I Report since they were not part of the public record, his statement does not clearly state that the e-mails were never before him. The Commissioner wrote that Commission counsel had access to documents that he has not seen, yet the introductory statement does not clearly state that the Commissioner did not see the e-mails received in Phase I. The Commissioner has not provided any clear evidence, either through his statement in his Phase I Report or by affidavit to state that he was unaware or did not see these e-mails.

[76]            In fact, the evidence before the Court suggests that the Commissioner was aware of the e-mails. François Perreault wrote the following in Inside Gomery at page 111 (page 156 of Gomery l'enquête) :

As I find below, while the weight to be accorded this and other comments in Inside Gomery can be argued before the Applications Judge, the above passage appears to provide evidence that the Commissioner was aware of the e-mails.

[77]            The Commission argues that the Commissioner's statement that effectively states that he did not consider the e-mails when writing his Phase I Report should be given deference. The Court agrees that the claim that the Commissioner did not consider the e-mails is a statement that deserves a strong presumption of veracity. However, whether this presumption can be refuted is a matter best left for the Applications Judge. It is not so strong a presumption as to deny the Applicants their right to materials that were before the decision-maker during Phase I which were received with respect to the Phase I mandate of the Commission.

[78]            The issue when considering relevance under Rule 317 is not whether the materials were given any weight or considered by the Commissioner, but rather whether they were before him. In this regard, this case differs from Pathak, above, where the investigator and the decision-maker were two different individuals, and where there was nothing on the record to suggest that materials before the investigator were also before the decision-maker. In the present situation, the Commissioner is both investigator and decision-maker. While he may have decided to exclude certain materials when writing the Phase I Report, if the materials were before him, and was not received as part of Phase II, then the applicants are entitled to them.

[79]            The treatment of the e-mails by the Commission may also be relevant to the applicant's allegations of breaches of procedural fairness. The applicants refer to comments attributed to François Perreault regarding the e-mails received by the Commission during Phase I. In an article dated January 13, 2005, the Toronto Star reported that François Perreault confirmed that the Commission had received approximately two dozen e-mails from the public. Mr. Perreault is said to have stated that, "People are saying in the e-mails, 'What's Chrétien got to hide?'". Jean Pelletier's written materials included similar reports from La Presse dated January 19, 2005.

[80]            Chrétien alleges in his Notice of Application for Judicial Review that the Commissioner became preoccupied with media coverage (Chrétien's Amended Notice of Application, at 23). This allegation may involve arguments regarding whether the Commission breached Chrétien's right to procedural fairness and whether there were grounds to find a reasonable apprehension of bias on the part of the Commissioner.

[81]            The Court makes no finding at this time with respect to any of the applicant's allegations. These will be assessed by the Applications Judge after hearing full argument from the parties. The Court is presently only concerned with whether the e-mails are relevant for the purposes of Rules 317 and 318 of the Federal Court Rules. The use of the e-mails by the Commission may still raise issues of procedural fairness and reasonable apprehension of bias, and they therefore may be considered relevant.

[82]            The Court notes, however, that not all of the requested e-mails are relevant at this stage. Gagliano and Chrétien requested e-mails received between September 2004 and October 2005, and Pelletier did not specifically indicate which dates were relevant. The difficulty with these dates is that on August 25, 2005 the Commission issued its Invitation to Canadians to assist him with his Phase II mandate. Any e-mails received after August 25, 2005 were likely received in response to the Commissioner's call for public input with regards to Phase II. The Court has noted above that Phase II materials are not relevant to the present applications for judicial review. It follows that only the requested Phase I e-mails received by the Commission between September 7, 2004 and August 25, 2005 are relevant for the purposes of Rule 317. Copies of the e-mails should be transmitted to the parties, and the weight of the content of these e-mails can be determined by the Applications Judge.

[83]            To summarize, unless there is clear and convincing evidence to the contrary, when a Commissioner states that he did not use certain material, then this statement must be presumed to be true. This is a view that is supported by recent Supreme Court jurisprudence: Société d'énergie Foster Wheeler ltéé v. Société intermunicipale de gestion & d'élimination des déchets (SIGED) Inc., above. However, in determining the relevance of a document under Rule 317, the issue is not whether the decision-maker did not consider certain evidence, but rather whether the evidence was or should have been before the decision-maker. At this stage of the proceedings, the applicants have shown that the requested Phase I e-mails received between September 7, 2004 and August 25, 2005 are relevant to their grounds for judicial review. The Court makes no comment as to whether or not these claims will succeed. That is a task for the Applications Judge to determine.

D. Inside Gomery and Materials related to François Perreault

[84]            The Court is satisfied that the requests by Gagliano and Pelletier to obtain copies of materials related to the mandate of the Commission's Press Secretary, François Perreault, should be allowed. The Court finds that these requests fall within exceptions to the general rule that only materials before the decision-maker must be transmitted to the applicants.

[85]            None of the parties take the position that Inside Gomery, the book published by the Commission's Press Secretary François Perreault, should not be admissible on judicial review. The Court is of the view that since the book's preface was written by the Commissioner, it is admissible. The Commissioner wrote in the preface to Inside Gomery at page 3 (page 13 of Gomery l'enquête) that :

And further on the same page, the Commissioner wrote:

The weight to be accorded to Inside Gomery will be determined on judicial review after the parties are able to present full argument.

[86]            The materials related to François Perreault may be relevant to both the applicants' allegations of a reasonable apprehension of bias and to the argument that the applicants' rights to procedural fairness were breached. Among the grounds for judicial review relied upon by the parties are arguments that the Commission breached its duty of procedural fairness and breached principles of natural justice in the way it interacted with the media. The applicants also argue that the Commissioner himself became too concerned with the media's interests in the Commission's work. A further ground raised is that the Press Secretary became too involved in the work of Commission counsel. Once again, the Court is not making any finding as to the applicant's grounds for judicial review. However, the Court finds that the documents related to the mandate given to the Commission's Press Secretary, documents related to instructions that he may have received by the Commissioner or Commission staff, and materials related to interviews accorded by the Press Secretary or by the Commissioner himself to the media or to any other persons are relevant for the purpose of Rule 317. These materials relate to the applicants' grounds for judicial review, and may assist the Court in coming to a reasonable conclusion regarding the allegations of a reasonable apprehension of bias and breaches of procedural fairness.

[87]            At this time, the Court is simply deciding that these materials should be transmitted to all of the parties. The parties will have the opportunity at a later date to debate the weight to be accorded to these materials and the Court will hear full submissions related to both the claims of a reasonable apprehension of bias and breaches of procedural fairness.

IX. Conclusion

[88]            The applicants' requests for materials from Phase II of the Commission were properly opposed by the Commission. The supposed relevancy of these materials is too speculative, and the applicants have engaged in an improper fishing expedition with regards to these requested materials in an attempt to build their case.

[89]            The applicants were not merely fishing when they requested e-mails received by the Commission during Phase I. The requests were carefully tailored. The Court finds that most of these materials are relevant for the purposes of Rule 317. The applicants are entitled to the requested e-mails received by the Commission from September 7, 2004 to August 25, 2005. Those e-mails received after August 25, 2005 were most likely sent to the Commission in response to his Invitation to Canadians to assist him with Phase II of the Commission. E-mails received after August 25, 2005 are therefore not relevant to Phase I of the Commission's mandate.

[90]            The book Inside Gomery is admissible, and various materials related to the mandate of the Commission's Press Secretary, François Perreault, are also to be transmitted to the parties. These materials fall within an exception to the rule that only materials before the Commissioner in making his decision are relevant. At this stage these materials appear to be relevant to the applicants' claims of a reasonable apprehension of bias and breaches of procedural fairness. Whether or not these claims succeed will be a matter to be determined by the Applications Judge.

ORDER

THIS COURT ORDERS that:

« Max M. Teitelbaum »

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-2086-05; T-2118-05; T-2121-05

STYLE OF CAUSE:                           The Honourable Alfonso Gagliano and the Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities and The Attorney General of Canada

                                                            The Right Honourable Jean Chrétien and The Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities and The Attorney General of Canada

                                                            Mr. Jean Pelletier and the Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities and The Attorney General of Canada

PLACE OF HEARING:                     May 5 and 12, 2006

DATE OF HEARING:                       Montreal, Qc

REASONS FOR ORDER:                TEITELBAUM J.

DATED:                                              June 9, 2006

APPEARANCES:

P.A. Fournier P. Doody G. Pratte	For Alfonso Gagliano For Jean Chrétien For Jean Pelletier
R. Langlois and Marie-Geneviève Masson B. Saunders A. Lespérance P. Guay	For John H. Gomery For the Attorney General of Canada

SOLICITORS OF RECORD:

Fournier Associés, s.e.n.c. Borden Ladner Gervais, LLP Borden Ladner Gervais, s.r.l.	For Alfonso Gagliano For Jean Chrétien For Jean Pelletier
Langlois Kronström Desjardins, s.e.n.c.r.l. John H. Sims, Q.C. Justice Canada	For John H. Gomery For the Attorney General of Canada