Date: 20010213
Docket: T-1639-99
Citation: 2001 FCT 71
BETWEEN:
THE HUMAN RIGHTS INSTITUTE OF CANADA,
HIS EMINENCE LAZAR PUHALO, ARCHBISHOP OF
THE UKRANIAN ORTHODOX ARCHDIOCESE OF CANADA,
ROSEMARY LARSON, CITIZENS CONCERNED
ABOUT FREE TRADE, CONSTANCE CLARA FOGAL,
THE DEFENCE OF CANADIAN LIBERTY COMMITTEE
(LE COMITÉ DE LA LIBERTÉ CANADIENNE),
Applicants,
- and -
THE MINISTER OF PUBLIC WORKS
AND GOVERNMENT SERVICES,
THE MINISTER OF DEFENCE,
THE ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE PRIME MINISTER AND
OTHER MEMBERS OF CABINET,
THE UNITED STATES OF AMERICA,
WILLIAM J. CLINTON, COMMANDER-IN-CHIEF,
UNITED STATES OF AMERICA ARMED FORCES,
Respondents.
REASONS FOR ORDER
John A. Hargrave, Prothonotary
[1] This proceeding and companion proceeding, T-1463-99, with a similar style of cause, arise out of hearings held by Mr. Michael Goldie, related to the Federal Government's intention to expropriate the bed of the Gulf of Georgia comprising the Nanoose Bay torpedo testing range and the subsequent expropriation of that area pursuant to the Federal Expropriation Act, R.S.C. 1985, c. E-21.
[2] These brief reasons arise out of substantially similar Rule 317 requests by the Applicants, in both proceedings, to produce documents pursuant to Rule 317 (1) which is as follows:
Material from Tribunal - a party may request material relevant to an application that is in the possession of a Tribunal whose order is a subject of the application and not in the possession of the party by serving the Tribunal and filing a written request, identifying the material requested.
The Tribunal may object to production of documents under Rule 318 (2), however that is not at issue at this point.
[3] In a sense the Applicants' motion for production may well be moot, for on the same day the Respondent, The Attorney General of Canada, made a successful motion for stays of the two proceedings pending the resolution of a parallel proceeding in the British Columbia Supreme Court, brought by the Province of BC. However I have written these reasons on the basis that they may be of assistance should this proceeding, or proceeding T-1463-99, at some time in the future go forward.
[4] Returning to Rule 317, it requires that there be documents in the possession of a Tribunal the order of which is the subject of the application. Here the Applicants refer to Carey v. Ontario, [1986] 2 S.C.R. 637 at particularly at page 673, where Mr. Justice La Forest, giving judgment for the Court, expounds on open government and the concomitant right to production of documents in an action. While this passage is pertinent in an action, which embodies the process of the discovery of documents, it is not directly relevant in the present proceeding, which is an application for judicial review, in which production of documents is less broad then discovery of documents in an action, for the only documents to be produced are those that were before the Tribunal making the decision.
[5] Pertinent here, as I understand it, is that the decision at issue, that of expropriation, was made by the Federal Minister of Public Works and Government Services. Mr. Goldie made no decision, but merely reported the findings arising out of the hearing over which he presided. This type of scenario has been canvassed: the law does not favour the Applicants.
[6] In 1185740 Ontario Ltd v. Minster of National Revenue (1998), 150 F.T.R. 60 Mr. Justice Nadon pointed out at page 64 that the requested material must be that relevant to the issue before the Tribunal and have been presented to or made available to the Tribunal. However, where it is a Minister's decision which is being challenged, the Applicant may only have those documents that where before the Minister when he or she made the decision: see page 66.
[7] In the present instance the Minister of Public Works and Government Services says, through counsel, that the documents which were before him, when he made the decision, other than those which are privileged or exempt from production, have already been produced. This provides a complete answer, for it is not the documents which were before Mr. Goldie which must be produced, but rather those which were before the actual decision maker, the Minister. Those documents having been produced, except as to privileged documents or documents exempt from production. The Motion is dismissed.
[8] A copy of these reasons shall be placed in file T-1463-99.
(Sgd.) " John A Hargrave"
Prothonotary
February 13, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1639-99
STYLE OF CAUSE: The Human Rights Institute of Canada et al
v.
The Minister of Public Works and Government
Services et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 7, 1999
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY
DATED: February 13, 2001
APPEARANCES:
Mr. Rocco Galati, Mr. Harry Rankin
& Mr. Manuel Azevedo For the Applicant
Mr. John Hunter
& Mr. Michael Stephens For the Respondent - AGC
Ms. Gillian Calder For the Respondent - Michael Goldie
SOLICITORS OF RECORD:
Azevedo & Peeling
Vancouver, BC For the Applicant
Galati, Rodrigues and Associates
Toronto, On For the Applicant
Davis & Co
Vancouver, BC For the Respondent - AGC
Faskin Martineau DuMoulin
Vancouver, BC For the Respondent - Michael Goldie
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