[1] The Applicant initially made a request, pursuant to Rule 318(4) for production of relevant material in the possession of the tribunals whose orders were said to form grounds for four judicial review applications, all with the same style of cause, file numbers T-1520-01, T-1521-01, T-1522-01 and the present proceeding, T-1523-01. The first three of these applications have now been struck out. Thus there remains only the request for documents in this ongoing file involving the formation of the Founding Board of Directors of the Aboriginal Health Institute, which I refer to as such, notwithstanding its new name, the Organization for the Advancement of Aboriginal People's Health. The review sought involves a failure on the part of the Crown to invite the Applicants to be a part of the Founding Board of Directors on the establishment of the Aboriginal Health Institute. The decision referred to in the Notice of Application is not identified by any date or otherwise, but is said to be that of the Minister of National Health. While the affidavit material is massive, it seems to overlook both the decision and the founding of the Institute. I am aware from other sources that the Institute came into being in about 1998.
[2] The Applicants are concerned that production of Rule 317 documents has not taken the usual Rule 318 course, with directions as to submissions, often with the Court examining documents which the tribunal does not wish to produce. The present situation did not lend itself to Rule 318 procedure because the general thrust of the Applicants' request for documents was akin to broad and unspecific discovery, with many elements of a fishing expedition. Thus the Applicants were forced to bring the present motion.
[3] The Applicants in their motion seek the production of four classes of documents:
(i) any and all policy documents leading to the formation of the Aboriginal Health Institute;
(ii) any and all cabinet documents discussing formation of the Aboriginal Health Institute;
(iii) any and all Treasury Board's submissions discussing formation of the Aboriginal Health Institute; and
(iv) any and all reports, letters, papers, submissions and written documents discussing consultation of national aboriginal representative organizations leading to the formation of the Aboriginal Health Institute.
These requested items are said to relate to the decision of the Minister of Health and Welfare "... to exclude and not include Pauktuutit, Inuit Women's Association from the Founding Board of Directors of the federally created Aboriginal Health Institute" (Notice of Application). I will now turn to some relevant law.
SOME RELEVANT LAW
[4] The material which a tribunal must produce, upon request, pursuant to Rule 317, is limited to "... material relevant to an application that is in the possession of the tribunal whose order is a subject of the application ..." and not in the possession of the party making the request. To elaborate on Rule 317, it provides access to documents which an applicant does not have and which are in the possession of the tribunal, but it does not provide for access to documents held by another entity.
[5] Relevant material, in the context of Rule 317, must be considered in the light of the purpose of judicial review:
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In essence, judicial review is just that, a review of a tribunal's decision which is based on the evidence which the tribunal had before it: to allow in additional material would not only be irrelevant, but also would transform a judicial review process into an appeal process. (Toft v. Attorney General of Canada, an unreported 18 July 2001 decision in file T-264-01, 2001 FCT 808)
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In making this observation in Toft, I relied upon a passage in a brief unreported 18 May 1994 decision with Mr Justice Nadon, as he then was, in Asafov v. Canada (MEI), IMM-7425-93, [1994] F.C.J. No. 713. This concept, of a review of the decision itself, is important in the present instance because the scope of the documents sought goes well beyond the review sought in the Notice of Application and, one would expect, well beyond the amount of material which the decision-maker in this instance could ever consider and absorb.
[6] All of this is consistent with the current state of the law, as set out by Mr Justice Pelletier in Hiebert v. Price (2000), 182 F.T.R. 18, there referring to a position taken by Mr Justice Nadon in 1185740 Ontario Ltd. v. Canada (Minister of National Revenue) (1998), 150 F.T.R. 60, as approved by the Court of Appeal (1999), 247 N.R. 287 at page 289:
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[5] In. Pathak v. Canada (Humans Right Commission) et al., [1995] 2 F.C. 455 (F. C.A.), 180 N.R. 152 (F.C.A.), this Court held that only documents which were actually before the Human Rights Commission in making its decision had to be produced. Other documents relied upon by the investigator did not have to be produced in the absence of evidence that the investigator had inaccurately summarized them. To much the same effect is the decision of this court in Terminaux Portuaires du Québec Inc. v. Conseil Canadien des relations du travail (1993), 164 N.R. 60; 17 Admin. L.R. (2d) 16 (F.C.A.). I accept and follow these decisions.
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[7] Rule 317 and the case law which has developed require production of only relevant documents which were before a tribunal. Here I would make two observations. First, many documents may be in the possession of a tribunal, in one way or another, but not before the tribunal and to the extent that the Applicants rely upon Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans) (1997), 130 F.T.R. 206, that case is confined to its facts, the legislation underlying it providing no distinct investigation and decision-making stages. As I say, only documents which were before the tribunal which must be produced and then, only if relevant. Documents are relevant, in judicial review, if they may affect the decision and come within the grounds of review set forth in the originating notice of motion and the affidavit: see Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 at 460 (F.C.A.), leave to appeal refused (1995), 198 N.R. 237. However, such documents must be identified, not merely required en masse as if the process was discovery of documents.
[8] All of this may be summed up to reflect the summary nature of a judicial review application. In judicial review production of documents differs from discovery of documents in that the former is narrower and more concise. It is therefore up to an applicant to know his or her case on its commencement. It is improper to seek production of every imaginable document, to fish for documents and to argue that nonspecific unidentified documents ought to exist and that if they exist, they will found the Applicants' case. To take such an approach, that of planning to build a judicial review application on unknown material which may not even exist, material not even specifically pointed to let alone clearly identified in affidavits in support of an application, would be an abuse. For that reason Rules 317 and 318, which deal with production of documents by a decision-maker, the tribunal, must be reasonably construed so that the decision-maker, particularly a decision-maker whose decision is not clearly identified, is not put in the impossible position of producing reams of materials which may or may not have relevance. I will consider further the requirement that a request for production of documents from a tribunal must be specific.
[9] In considering production of documents under Rule 317 one must keep in mind the summary nature of judicial review proceedings. Rule 317 may not be used for conducting broad-reaching discovery, which may only be had by initiating an action: see Canada (Attorney General) v. Canada (Information Commissioner)(1997), 135 F.T.R 254 at 266 and Unger v. Telus Enterprise Solutions Inc., an unreported 16 July 2001 decision in file T-483-01, 2001 FCT 803 at paragraphs 3 and 4.
[10] In Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines (2000), 183 F.T.R. 267 I referred at page 276 to an observation made by Mr Justice MacKay in Beno v. Létourneau (1997), 130 F.T.R. 183 at 190 that a request for documents, under the predecessor rule to Rule 317 must be specific:
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Mr. Justice MacKay went on to note, at page 190, that a Rule 1612 request for documents must be a specific request, not merely a general description without knowledge of whether such documents exist. This corresponds with the present Rule 317 request for documents made by the Applicant and which, if given effect to, would result in complete discovery of documents.
(p. 276 of Diavik)
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[11] Beno v. Létourneau (supra) is also instructive for the concept that the predecessor rule to Rule 317 could not be used to support a fishing expedition:
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[23] It is long settled that judicial review proceedings are summary in nature, with no discovery or written pleadings, and the rules relating to those proceedings, including Rules 1612 and 1613, are not intended to prolong summary proceedings or to permit a "fishing expedition" for information. (See: Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432; Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada - Krever Commission), supra). ...
(p. 190)
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Moreover, a request for documents from a tribunal must be specific in the sense of identifying the material requested. The request must go beyond a general description. The request may not be a fishing expedition for documents when a party does not know whether such documents exist, even though they make a bald statement in argument that it is reasonable to expect that there are such documents:
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[24] Rule 1612(4) provides that a request (for documents) shall specify the particular material in the possession of the federal board, commission or other tribunal. Here there is no request that qualifies within that rule for the applicants simply set out a general description for all documents of a described sort. They do not know whether any such documents exist though it is urged it is reasonable to expect that there are some such documents. It is my opinion that in each case the requests for documents are requests in the nature of discovery. If this were an action the respondent Commissioners would have the obligation to produce a list of all relevant documents and to indicate which among those, if any, are claimed as privileged. But this is not an action, and the applicants are not entitled to discovery. The requests in connection with these applications for judicial review, in my opinion, are a "fishing expedition" to find whether there are any documents which might assist in support of the applicants' case for judicial review, about which documents they have no knowledge at this stage.
(Beno v. Létourneau at pp. 190 - 191)
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While Beno v. Létourneau was decided under the pre-1998 Rules, the present Rules are parallel and similar in that they contain much of the same wording. Thus the principles set out in Beno v. Létourneau apply in the case of Rule 317(1) which requires "... a written request, identifying the material requested.".
CONSIDERATION
[12] During submissions the Applicants acknowledged that the initial request for documents, which I would again set out, was too broad:
(i) any and all policy documents leading to the formation of the Aboriginal Health Institute;
(ii) any and all cabinet documents discussing formation of the Aboriginal Health Institute;
(iii) any and all Treasury Board's submissions discussing formation of the Aboriginal Health Institute; and
(iv) any and all reports, letters, papers, submissions and written documents discussing consultation of national aboriginal representative organizations leading to the formation of the Aboriginal Health Institute.
Counsel acknowledged that the Applicants were prepared to drop items (i) and (iv), requiring only production of Cabinet documents discussing the formation of the Aboriginal Health Institute and Treasury Board's submissions discussing the formation of the Aboriginal Health Institute.
[13] Both requests, for Cabinet documents leading to the formation of the Aboriginal Health Institute and for Treasury Board submissions discussing the formation of the Aboriginal Health Institute are still far too broad. This is particularly so considering that the Notice of Application deals with the narrow point of an unidentified decision said to be that "... of the Minister of National Health and Welfare ... to exclude and not include Pauktuutit Inuit Women's Association from the Founding Board of Directors of the federally created Aboriginal Health Institute.". The lengthy affidavit material of Ms Dewar, in support of this application, refers to much discrimination but neither adds anything to nor illuminates the particulars of the decision.
[14] Unfortunately the Applicants' voluminous affidavit material does not bear on or identify what documents might be available. Written submissions, on behalf of Pauktuutit, insist that various classified and unaccessible Cabinet documents exist and that "if the documents requested exist" they must relate to the Court proceedings. The submissions also go on to state that "if the documents exist" they must be "related to or connected to those used by decision makers to discriminate against Inuit women based on sex and/or race.". This use of a conditional uncertainty results in much supposition and conjecture. The request for documents which, if they exist, must have been used by someone to exclude the Applicants and to discriminate against Inuit women, is a pure fishing expedition.
[15] Leaving aside the absence of any real identification of the decision, in the present instance the Applicants have not clearly identified what they wish to be produced, so as to bring themselves within Rule 317. Rather the request is for "any and all Cabinet documents discussing formation of the Aboriginal Health Institute" and for "any and all Treasury Board's submissions discussing formation of the Aboriginal Health Institute". Not only is this not within what is sought by way of judicial review, a review of the decision to exclude Pauktuutit from the initial Aboriginal Health Institute organizing process, but also it is an attempt, by way of a fishing expedition, to build a case upon documents the existence of which the Applicants are unsure.
[16] The present request is also such that it is incapable of invoking a focused response from the Respondent. The Applicants should have made a more specific request for documents and indeed, among the many affidavits of Ms Dewar, is one sworn on 6 November 2001. That affidavit does seem to refer to a collection of documents held by the Applicants related to the formation of the Aboriginal Health Institute, but again the documents are not identified. To make an unbounded request for documents, without an analysis to see what might or should exist to fill gaps in the material already held by the Applicants, is improper for several reasons. First, Rule 317(1) only requires production of documents which the Applicants do not already have: the materials of present Applicants give one no idea as to what the Applicants already possess and thus no idea as to place or time which the Respondent ought to search. Such information would be helpful in defining, for the benefit of the Respondent, the additional material which, if in existence, is that which the Applicants seek. Second, to make it broad discovery-like request for documents, without declaring what the Applicants already have, smacks of a fishing expedition on which to build a case. Finally, to require the Respondent to sort through all Cabinet documents discussing the formation of the Aboriginal Health Institute and all Treasury Board's submissions discussing the formation of the Founding Board of Directors of the Aboriginal Health Institute, and the failure to invite Pauktuutit to participate and then to have to decide on relevance and whether the documents were before whoever made the decision, is a task out of all proportion to what is envisioned by Rule 317.
[17] The motion is dismissed, with costs to the Respondent.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
13 February 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1523-01
STYLE OF CAUSE: Pauktuutit, Inuit Women's Association et al. v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 18 December 2001
REASONS FOR ORDER: Hargrave P.
DATED: 13 February 2003
APPEARANCES:
Teressa Nahanee FOR PLAINTIFFS
John S Tyhurst FOR DEFENDANT
SOLICITORS OF RECORD:
Teressa Nahanee FOR PLAINTIFFS
Barrister & Solicitor
McIvor Nahanee Law Corporation
Merritt, British Columbia
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario
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