Date: 20011018
Docket: T-806-01
Neutral Citation: 2001 FCT 1130
BETWEEN:
FAITH S. BRADLEY-SHARPE
Applicant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
- and -
THE ROYAL BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
FACTS
[1] The self-representing applicant, Ms. Bradley-Sharpe, brings this motion because she wishes to be provided with the information contained within the CHRC (the "Commission") file or files, for the purpose of preparing her affidavit and cross-examination. The respondent, the Commission, relies on Rule 318(2) to object to this motion.
[2] The respondent states at paragraph 4 of its "Submissions of the Canadian Human Rights Commission Pursuant to Rule 318(2) of the Federal Court Rules":
The Canadian Human Rights Commission reconfirms that the certified documents sent to the applicant and respondent and transferred to the Federal Court on July 21, 2001, pursuant to Rule 318 of the Federal Court Rules constitute the complete record of documents that was before the Canadian Human Rights Commission when it made its impugned decision of October 30, 2000 pursuant to s. 44(3)(b)(i) of the Canadian Human Rights Act with regard to Ms. Bradley-Sharpe's complaint.
[3] In regards to the applicant's motion in accordance with Rule 317, the respondent objects to the production of the materials listed in (a) to (e) and relies on Rule 318(2) to do so.
[4] Rules 317 and 318 of the Federal Court Rules, 1998 read:
| 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.
(2) An applicant may include a request under subsection (1) in its notice of application.
Material to be transmitted
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.
(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.
Directions as to procedure
(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).
(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.
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317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral don't l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.
(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.
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.
(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.
(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.
(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.
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[5] Subparagraph 44(3)(b)(i) of the Canadian Human Rights Act reads as follows:
| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
[...]
(3) On receipt of a report referred to in subsection (1), the Commission
[...]
(b) shall dismiss the complaint to which the report relates if it is satisfied
[...]
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted.
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
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(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_:
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b) rejette la plainte, si elle est convaincue_:
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(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
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ISSUE
[6] The essential issue in the present case is to determine whether the material requested by the applicant meets the test of relevancy in order for this motion to be granted, namely: Is the material requested by the applicant relevant to the judicial review application?
ANALYSIS
Rule 317 of the Federal Court Rules, 1998
[7] The notes under Rule 317 in the Federal Court Practice (Sgayias 2002), page 651 read:
Under rule 317 a party may request the tribunal to transmit material in its possession to the party and the Registry. The material requested must be relevant to the application and must not already be in the possession of the requesting party.
[8] In order for Rule 317 to apply, the material requested by the applicant must be relevant to the judicial review application and must not be in the possession of the applicant. As for the latter criteria, it is clear that the material requested by the applicant is not in her possession.
[9] I have reproduced the list of materials requested and the grounds for judicial review.
Material requested by the applicant
[10] In the present case, the list of materials requested by the applicant, which can be found at page 8 of the Affidavit of Faith Bradley-Sharpe, are:
All notes, documents, memoranda, correspondences and any materials whatsoever which make up the file, or files, maintained by the Canadian Human Rights Commission in respect of the applicant's complaint in Commission File No. A49752, and in particular, but not limiting the foregoing:
a) all materials certified to comprise that which were before the Commission when it made its decision, in addition to those offered in writing to the Commission (but were not requested by the Commission) that is the subject of the application for judicial review, should have consisted of the following:
b) all witness statements taken by the Commission in the course of investigating the complaint, including the names of the deponents, the date or dates the statements were taken, and the officer or officers taking the statements;
c) all documents relating to the formulation, drafted and final notes, comments, and concerns prepared by the officer or officers who created the report in this complaint, forwarded to the applicant from the Commission under cover of letter dated August 26, 2000;
d) all legal memoranda, opinions, correspondence or documents which address the applicant's complaint or issues therein;
e) all documents provided to the Commission in order that they could make a determination under s. 44 of the Human Rights Act.
The grounds for the judicial review application
[11] In the present case, the purpose for the judicial review application is to review the decision made October 30, 2000 whereby the Commission dismissed the applicant's complaint because, on the evidence, the allegation of discrimination was unfounded under subparagraph 44(3)(b)(i) of the Canadian Human Rights Act (the "Act"). The grounds of review in the present case, which can be found at page 4 of the Applicant's Notice of Application, are:
a) the Commission acted beyond its jurisdiction;
b) the Commission acted, or failed to act, by reason of fraud or perjured evidence;
c) the Commission based its decision / order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
d) the Commission failed to observe a principle of natural justice, procedural fairness, or other procedure that it was required by law to observe;
e) the Commission erred in law in making a decision / order whether or not the error appears on the face of the record;
f) the Commission acted in any other way that was contrary to law.
Test for relevancy
[12] In Friends of the West Country Assn. v. Canada (Min. of Fisheries & Oceans), [1997] F.C.J. No. 557, the Court found that:
[para 28] Pathak clearly states that the test for relevancy is how the document relates to the grounds raised in the originating notice of motion and supporting affidavit.
[13] The respondent makes reference to the case of Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C.A) in regards to the test of relevancy. The facts in Pathak are very similar to those in the present case. In Pathak, the applicant filed a complaint with the Commission alleging that he had been the victim of a discriminatory practice on the part of the Royal Bank of Canada. The Commission decided to dismiss the complaint because, on the evidence, the allegation of discrimination was unfounded. Pratte , MacGuigan and Décary JJ.A. found that:
[para 10] A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.
[...]
[para 11] Section 44 of the Canadian Human Rights Act clearly contemplates that the decision of the Commission be made on the basis of the investigator's report. This is so because the law presumes that the report of the investigator correctly summarizes all the evidence before him. That presumption must be taken into account in assessing the relevance of the documents requested by the respondent.
[...]
[para 12] The respondent seeks the production of all documents relied on by the investigator in preparing his report. There is nothing in the respondent's originating notice of motion, in his affidavit or in the other material before us that even casts a doubt on the accuracy or completeness of Mr. Fagan's report. It follows that the grounds of attack invoked by the respondent in his originating notice of motion must be read and that the relevance of the documents requested must be assessed on the assumption that the report of the investigator is a faithful and complete summary of the evidence before him. On that basis, the production of the documents would clearly serve no useful purpose.
[para 23] Only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase, as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report. These are two different moments of the Commission's life, distinct moments not to be obliterated by a legal fiction.
[para 24] Further, it seems to be the obvious intent of section 44 of the Canadian Human Rights Act that members of the Commission need not examine the complete record of the investigation, but are intended to rely on the report alone.
[...]
Everything happens on the receipt of a report. The report is not only the trigger of Commission action but is also the only document referred to as the basis for a Commission decision as to how to proceed.
[14] In 1185740 Ont. Ltd. v. M.N.R., [1999] F.C.J. No. 1432 (F.C.A.), the Court of Appeal made reference to the trial judge's decision which was subsequently set aside by the Court of Appeal:
[para 3] Mr. Justice Nadon rejected the appellant's application. Mr. Justice Nadon held that the test for determining whether a party could be forced to produce documents under the former Rule 1612 [now rule 317] was whether the document had been "used" by the tribunal "in its hearing, deliberations or decision". Therefore, in Nadon J.'s view the appellant was only entitled to documents that were actually before the Minister when he made his decision. [...]
[para 4] On appeal, the appellant narrowed its request for further production to documents which are mentioned in the two memoranda, but which obviously were not before the Minister when he made his decision.
[...]
[para 5] In Canada (Humans Right Commission) v. Pathak, [1995] 2 F.C. 455 (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 Quebec Ports Terminals v. Canada (Labour Relations Board) 17 Admin. L.R. (2d) 16. I accept and follow these decisions.
[15] In the present case, the Commission relied upon the investigator's report. This report is the only document to form the basis of the Commission's decision and this in accordance with Pathak, supra. It is evident that the applicant would like to be able to access any and all other evidence surrounding the investigator's report in order to strengthen her case and invokes Rule 317 to do so.
[16] I find that the requested material is, in fact, relevant to the judicial review application because there are simply no other means possible for the applicant to prove the grounds for judicial review she alleges. She requires the material she is requesting in order to fully argue the merits of her case and namely to prepare a detailed affidavit and cross-examination.
Discovery or "Fishing expedition"
[17] I rely on the pertinent jurisprudence reproduced below, when I conclude that it is in regards to the consideration of discovery or "a fishing expedition", that the applicant's motion is dismissed. The applicant's request for material is far too broad and far too large in scope for Rule 317 to be applicable. In addition, a judicial review application is not the forum to revisit any or all evidence other than what was specifically before the Commission when it made its decision, in the present case, the investigator's report.
[18] In Canada Post Corporation v. Public Service Alliance of Canada (1999), 164 F.T.R. 288 (F.C.T.D), Gibson J. held:
[para 6] It is trite law that fresh or new evidence that was not before the original decision-maker is not permitted in judicial review proceedings, and Rule 317 is not intended to permit a party to repair its failure to present all of the relevant evidence that might or should have been produced before the decision-maker.
[19] In Northwest Territories v. Public Service Alliance of Canada, [1999] F.C.J. No. 1970 (F.C.T.D.), Dubé J. held:
In the instance, the Court has not been persuaded that the requested documents are relevant to the grounds for judicial review specified in the Application. In fact, the Court is not even persuaded that the requested documents exist. In my view, that request by the applicant, in its application, amounts to a fishing expedition. That, the Court cannot authorize.
[20] In Atlantic Prudence Fund Corp. v. Canada (Ministry of Citizenship and Immigration) [2000] F.C.J. No. 1156 (F.C.T.D.), Hugessen J. stated:
Rule 317 does not have the same theoretical foundation, nor does it produce the same results as documentary discovery and does not require a tribunal (by contrast to a defendant in an action) to engage in an extended and exhaustive search for material whose relevance may at best be marginal and whose selection will necessarily involve an exercise of judgment.
[21] In Canada (A.G) v. Canada (Information Commr.), [1998] 1 F.C. 337 (F.C.T.D.), MacKay J. found in regards to Rule 317 that:
It is not intended to facilitate discovery of all documents that may be in the decision-maker's possession, or all documents that may have been gathered in an investigation.
[22] In Beno v. Létourneau, [1997] F.C.J. No. 535 (F.C.T.D.), MacKay J. stated:
[para 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 [now rules 317 and 318], are not intended to prolong summary proceedings or to permit a "fishing expedition" for information.
[...]
[para 24] 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.
[23] The applicant has requested an abundance of material which is too vague and ambiguous in its scope and in its purpose and which amounts to "a fishing expedition" into the Commission's file or files.
[24] The proof of this is evident from the language used by the applicant in the list of materials requested. The applicant uses the word "all" six (6) times which according to the Oxford English Dictionary On-line means "the entire or unabated amount or quantity of; the whole extent, substance, or compass of; the whole." The applicant's purpose, in my estimation, is 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. I, therefore, agree with the respondent when in its Submissions at paragraph 10 it reads:
It appears that the request for disclosure of the fruits of the investigation is an attempt at discovery of the documents underlying the investigation report prepared by the Commission investigator and is therefore not relevant to the judicial review application within the meaning of Rule 317 of the Federal Court Rules.
[25] There must be a specific purpose in order for Rule 317 to apply. There does not seem to be any specificity to the applicant's request, but rather it is very general in scope. This permits me to infer that the purpose of the request is for discovery or "a fishing expedition", which is simply not permissible on a judicial review application.
Rule 318 of the Federal Court Rules, 1998
[26] The notes under Rule 318 in the Federal Court Practice (Sgayias 2002), page 654 read:
Rule 318 requires a tribunal served with a request for material under rule 317 to forward the material to the Registry and the requesting party within 20 days.[...]
If the tribunal or another party to the application objects to the request, they must inform the other parties and the Court Administrator, in writing, of the reasons for their objection.
[...] only the requesting party and the Registry receive copies of the requested material directly from the tribunal. In order to rely on the material on the hearing of the application, the requesting party must include the material in its application record.
[27] Rule 318 is a technical provision that does not require interpretation. Specifically, it is Rule 318(2) that allows for the possibility of filing an objection on behalf of the respondent. Rule 318(4) provides for an Order for the production of certified copies or originals copies of the material requested be forwarded to the Registry.
CONCLUSION
[28] While I find that the material requested by the applicant is relevant to the judicial review application, I also find that her endeavour to resort to Rule 317 in order to amass a vast amount of material is too general and amounts to discovery or "a fishing expedition."
[29] Lastly, I would add that a subsequent motion brought by the applicant with a more specific and a more focussed list of requested materials may be looked upon more favourably by this Court.
O R D E R
[30] I therefore conclude that the motion should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 18, 2001
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