Docket: T-1599-15
Citation: 2016 FC 101
Ottawa, Ontario,
January 28, 2016
PRESENT: The Honourable Madam Justice McVeigh
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BETWEEN:
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CANADIAN
NATIONAL RAILWAY COMPANY
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Applicant
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and
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LOUIS DREYFUS
COMMODOTIES CANADA LTD
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Respondent
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ORDER AND REASONS
[1]
The Applicant, Canadian National Railway Company
(“CN”), brought a motion for:
1.
an Order pursuant to Rules 317 and318 of the Federal
Courts Rules, SOR/98-106:
(a)
directing Thomas Maville (the “Arbitrator”) to
prepare and file an affidavit listing all of the materials requested by CN,
namely, all of the materials provided to the Arbitrator in the context of the
arbitration proceeding, or considered by the Arbitrator in making the
arbitration decision dated August 25, 2015, that were not also provided to CN
including, in particular:
i.
copies of all emails, letters or other
correspondence exchanged between the Arbitrator and the persons appointed
pursuant to section 169.35 of the Canada Transportation Act, 1996 c. 10
(the “CTA”) to provide administrative, technical, and legal assistance to the
Arbitrator, or any other staff or member of the Canadian Transportation Agency
(the “Agency”), between the dates of June 22, 2015 and August 25, 2015;
ii.
copies of all documents, memoranda or other
materials sent to or received from the persons appointed pursuant to section
169.35 of the CTA to provide administrative, technical, and legal assistance to
the Arbitrator, or any other staff or member of the Agency, between the dates
of June 22, 2015 and August 25, 2015;
iii.
copies of all notes of conversations, meetings
or discussions with the persons appointed pursuant to section 169.35 of the CTA
to provide administrative, technical, and legal assistance to the Arbitrator,
or any other staff or member of the Agency, between the dates of June 22, 2015
and August 25, 2015;
(b)
directing the Arbitrator to produce to CN and
the Registry a certified copy of each of the materials requested by CN, as set
out in the preceding subparagraph, subject to any established claim for
privilege;
(c)
for the purposes of facilitating the Court’s
determination of any asserted claim for privilege, directing the Arbitrator to
prepare and file a Response Record, including an affidavit listing all of the
materials over which privilege is claimed and setting out sufficient details
regarding each document to understand why privilege is being claimed, and to
produce a copy of each of those documents for review by the Court; and
(d)
granting CN leave to file a Reply to any
Response Record filed by the Arbitrator or by the Respondent, Louis Dreyfus
Commodities Canada Ltd. (“LDC”);
2.
an Order pursuant to Rule 401 of the Federal
Courts Rules granting CN its costs of this motion; and
3.
such further and other relief as this Court may
deem just.
[2]
Written representations were filed by the
respective parties, including limited submissions from Counsel for the
Arbitrator, and considering the additional submissions requested in reference
to the Federal Court of Appeal’s recent decision in Taseko Mines Limited v Canada
(Minister of the Environment), 2015 FCA 254 (“Taseko”).
I.
Background
[3]
The CTA prescribes the statutory level of
service that a railway company must provide to a party, or “shipper,” who
wishes to send or receive goods by way of railway:
113. (1) A railway company shall,
according to its powers, in respect of a railway owned or operated by it,
(a) furnish, at the point of origin, at the point
of junction of the railway with another railway, and at all points of stopping
established for that purpose, adequate and suitable accommodation for the
receiving and loading of all traffic offered for carriage on the railway;
(b) furnish adequate and suitable accommodation
for the carriage, unloading and delivering of the traffic;
(c) without delay, and with due care and
diligence, receive, carry and deliver the traffic;
(d) furnish and use all proper appliances,
accommodation and means necessary for receiving, loading, carrying, unloading
and delivering the traffic; and
(e) furnish any other service incidental to
transportation that is customary or usual in connection with the business of a
railway company.
[4]
Generally speaking, railway companies and
shippers are able to negotiate mutually beneficial level of service contracts defining
the manner in which the railway company will fulfil its statutory service
obligation to the shipper, as provided for by subsection 113(4) and subsection
126(1) of the CTA. However, where that level of service negotiations fail, a
shipper may submit the matter to the Agency for arbitration in accordance with
the rules outlined in Part IV, Division II of the CTA (Arbitration on Level of
Services).
[5]
In the present context, LDC is a merchandiser
and shipper of grain operating in Western Canada. Among its extensive
operations, the company has facilities located in Kegworth (Glenavon),
Saskatchewan; Aberdeen, Saskatchewan; and, Dawson Creek, British Columbia
(collectively, the “Facilities”). The Facilities are served by CN, the only
railway company with direct access.
[6]
In early 2015, a dispute arose between CN and
LDC as to the level of service which CN was to provide to the Facilities. After
giving notice to CN that it intended to make a submission for a level of service
arbitration with the Agency, LDC filed its submission for arbitration with the
Agency on June 8, 2015, pursuant to subsection 169.31(1) of the CTA:
169.31 (1) If a shipper and a railway
company are unable to agree and enter into a contract under subsection 126(1)
respecting the manner in which the railway company must fulfil its service
obligations under section 113, the shipper may submit any of the following
matters, in writing, to the Agency for arbitration:
(a) the operational terms that the railway
company must comply with in respect of receiving, loading, carrying, unloading
and delivering the traffic, including performance standards and communication
protocols;
(b) the operational terms that the railway
company must comply with if it fails to comply with an operational term
described in paragraph (a);
(c) any operational term that the shipper must
comply with that is related to an operational term described in paragraph (a)
or (b);
(d) any service provided by the railway company
incidental to transportation that is customary or usual in connection with the
business of a railway company; or
(e) the question of whether the railway company
may apply a charge with respect to an operational term described in paragraph (a)
or (b) or for a service described in paragraph (d).
[7]
On June 22, 2015, the Agency referred the matter
to arbitration; pursuant to subsection 169.35(1) of the CTA, and the Arbitrator
was appointed.
[8]
The Arbitrator convened an initial pre-arbitration
meeting by way of a teleconference on June 23, 2015. Two follow up calls took
place on June 26 and June 29, 2015. In addition to the Arbitrator and
representatives of CN and LDC, Agency employees Nina Frid, John Dodsworth, John
Corey, David Gervin and Hasina Haq-Alam were present for the teleconference. John
Dodsworth was introduced by the Arbitrator as “Legal Counsel,” while John Corey
was identified as “Rail Subject Matter Expert”.
[9]
A second pre-arbitration meeting was convened by
the Arbitrator and held by way of teleconference on August 12, 2015. Once
again, in addition to the Arbitrator and representatives of CN and LDC, Agency
employees John Dodsworth, John Corey, and Hasina Haq-Alam were in attendance.
[10]
The arbitration hearing was held on August 16,
17, and 18, 2015, in Ottawa. In addition to the Arbitrator and representatives
of CN and LDC, John Dodsworth, Hasina Haq-Alam, Gerry Nera, John Corey and
Graham Fyfe were in attendance for some or all portions of the hearing. <
[11]
The Arbitrator issued his decision on August 25,
2015, setting out the terms binding CN in respect of future rail car supply for
LDC’s ongoing grain traffic requirements in connection with the Facilities.
[12]
On September 21, 2015, CN filed an application
for judicial review of the Arbitrator’s decision, pursuant to section 18.1 of
the Federal Courts Act, RSC 1985, c F-7.
[13]
In the Notice of Application, CN alleged, among
other grounds, that:
The Arbitrator failed to observe the
principles of procedural fairness, the Rules of Procedure for Rail Level of
Service Arbitration, SOR/2014-94 (“Arbitration Rules”), and section
169.35 of the CTA, and acted without jurisdiction or beyond his jurisdiction by
considering information, submissions or other materials from non-parties, which
materials were not made available to CN and to which CN was not afforded the
opportunity to respond.
[14]
In support of its application for judicial
review, CN made a request pursuant to Rule 317(1), which provides that:
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.
[15]
Specifically, CN requested that the Arbitrator
produce a certified copy of all material provided to the Arbitrator in the
context of the arbitration proceeding, or considered by the Arbitrator in
making the impugned Decision, that was not also provided to CN, including:
a) Copies of all emails, letters or other
correspondence exchanged between the Arbitrator and the persons appointed
pursuant to section 169.35 of the CTA to provide administrative, technical,
and legal assistance to the Arbitrator, or any other staff or member of the
Agency, between the dates of June 22, 2015 and August 25, 2015;
b) Copies of all documents, memoranda or
other materials sent to or received from the persons appointed pursuant to
section 169.35 of the CTA to provide administrative, technical, and legal
assistance to the Arbitrator, or any other staff or member of the Agency,
between the dates of June 22, 2015 and August 25, 2015;
c) Copies of all notes of conversations,
meetings or discussions with the person appointed pursuant to section 169.35 of
the CTA to provide administrative, technical, and legal assistance to the
Arbitrator, or any other staff or member of the Agency, between the dates of
June 22, 2015 and August 25, 2015;
[Emphasis added]
[16]
In correspondence dated October 13, 2015, LDC
objected to CN’s request, pursuant to Rule 318(2), which provides that:
318.(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.
[17]
Specifically, LDC protested that the request was
nothing more than “a fishing expedition,” done
in the hope of finding evidence to support its allegations, and claimed that
even if the materials in question did exist, they would be privileged under the
principle of deliberative secrecy.
[18]
In correspondence dated October 19, 2015, John
Dodsworth — acting in his capacity as legal counsel for the Arbitrator — objected
to CN’s request on behalf of the Arbitrator, stating that the materials in
question were subject to solicitor-client privilege, as well as the principle
of deliberative secrecy.
[19]
On November 2, 2015, CN filed a Notice of Motion
in Saskatoon that was accepted for filing in the Winnipeg Registry on November
10, 2015. The Notice of Motion indicated CN’s intention to seek an order compelling
the Arbitrator to deliver the requested materials so that they could be
considered by the Court when determining CN’s underlying application for
judicial review. In the affidavit of Eric Harvey (the “Harvey Affidavit”), made
on behalf of CN and sworn in support of the motion, CN expressed its belief
that the Arbitrator had improperly consulted with and/or relied on materials or
information of materials from John Dodsworth, John Corey or other Agency staff.
The Harvey Affidavit further indicated that this belief was supported by the fact
that the Arbitrator’s August 25, 2015 decision was inconsistent with the legal
arguments and the evidence presented at the hearing. In its written
representations, CN further claimed that the Arbitrator was obliged to produce
the materials requested, as they are relevant to the underlying judicial review
application, or in the alternative file affidavit evidence to establish a claim
of privilege.
[20]
On November 17, 2014, the Arbitrator filed his
response to CN’s motion, objecting to the request on the grounds that the
material which CN had requested is not relevant for the purposes of Rule 317 and
arguing that the motion before me seeks to violate the principle of deliberative
secrecy.
[21]
On November 18, 2015, LDC filed its response to
CN’s motion, objecting on largely the same grounds.
[22]
On November 24, 2015, all three parties,
including the Arbitrator in a limited role and without presenting evidence, were
given the opportunity to provide oral submissions which they did at a specially
convened sitting of this Court in Edmonton.
I.
Analysis
[23]
A decision of this Court concerning the
production of documents under a Rule 317 request is discretionary in nature (Jolivet
v Canada (Minister of Justice), 2011 FC 806 (“Jolivet”) at para 8). Assuming
that the material in question is in the possession of the administrative
decision-maker, this Court must then turn its focus to whether or not the material
being sought is “relevant” to the underlying application for judicial review
(Rule 317(1)). This is because an administrative decision-maker is not obliged
to produce material that is not relevant (Canada (Human Rights Commission) v
Pathak, [1995] 2 FC 455 (FCA) (“Pathak”) at para 9).
[24]
For the purposes of Rules 317 and 318, the
Federal Court of Appeal has instructed that a document is relevant to an
application for judicial review if it may have affected the decision of the
administrative decision-maker, or if it may affect the decision that this Court
will make on the application for judicial review (Maax Bath Inc v Almag
Aluminum Inc, 2009 FCA 204 (“Maax Bath”) at para 9).
[25]
In assessing whether the documents in question
meet this criteria, the Court must necessarily turn its attention to the
grounds of review set forth in the originating notice of motion and the affidavit
filed by the applicant (Pathak, at para 10; Gagliano v Canada
(Commission of Inquiry into the Sponsorship Program and Advertising Activities
– Gomery Commission), 2006 FC 720 (“Gagliano”) at para 49, aff’d
2007 FCA 131).
[26]
As a starting point, it is a basic tenet of
administrative law, and well-established in the jurisprudence of this Court,
that a party requesting material under Rule 317 is entitled to everything that
was, or should have been, before the decision-maker at the time the decision at
issue was made (Access Information Agency Inc v Canada (Attorney General),
2007 FCA 224 (“Access”) at para 7, citing 1185740 Ontario Ltd v
Canada (Minister of National Revenue), [1999] FCJ No 1432 (FCA); Gagliano,
at para 83). This presumption in favour of relevance exists because it is
understood, as a general rule, that an application for judicial review must be decided
on the basis of the information in the decision-maker’s possession at the time
the impugned decision is made (Canada (Public Sector Integrity Commissioner)
v Canada (Attorney General), 2014 FCA 270 (“Marchand”) at para 4; Jolivet,
at para 27).
[27]
However, the jurisprudence carves out exceptions
to the rule; for example, materials beyond those before the decision-maker may
be considered relevant where it is alleged that the decision-maker breached
procedural fairness, committed jurisdictional error or where there is an
allegation of a reasonable apprehension of bias (Gagliano, at para 50).
In order to obtain the disclosure of material that was not before a
decision-maker at the time the decision was made, an applicant must raise a
ground of review that would allow the Court to consider evidence that was not
before the decision-maker, and then demonstrate that this ground of review has
a factual basis supported by appropriate evidence (Marchand, at para 4).
[28]
In the present case, it
is clear from the grounds raised in CN’s Notice of Application, and the
accompanying Harvey Affidavit, that CN believes that
the Arbitrator received evidence and legal argument from third parties on which
CN was not given the opportunity to comment or respond. CN alleges that this is
a breach of procedural fairness and further contends that the Arbitrator
committed a jurisdictional error.
[29]
CN’s position is that it has limited its Rule
317 request to material that was before the Arbitrator when he made the August
25, 2015 decision, and thus this motion is not a request for expanded
disclosure of the sort identified in Marchand. In making this argument,
CN submits that the material is presumed to be relevant, per Jolivet at
para 27, and contends that it need not file affidavit evidence providing a
factual basis for the allegations contained in its Notice of Application.
Although of the view that it need not provide a factual basis in support of its
position, the Harvey Affidavit indicates that CN’s belief in this respect is informed
by the fact that the Arbitrator identified John Dodsworth as his “Legal Counsel”
and John Corey as his “Railway Subject Matter Expert,” and further contends
that the decision of the Arbitrator is at odds with the evidence presented at
the arbitration hearing, alluding to the fact that information must have been
before the decision maker that was not filed by the parties.
[30]
Both LDC and the Arbitrator object to the
request on the basis that CN has failed to establish that the documents being
sought are relevant for the purposes of Rule 317, and secondly submit that that
even if the documents in question were relevant, they would be protected by the
principle of deliberative secrecy. LDC and the Arbitrator had also initially raised objections to the
materials requested by CN on the basis of solicitor-client privilege, but these
objections were not substantively canvassed in either LDC’s or the Arbitrator’s
written submissions or advanced in either party’s oral submissions.
[31]
It bears mentioning here that a determination as
to whether or not the Arbitrator breached the duty of procedural fairness owed
to CN or committed a jurisdictional error in reaching his decision is an issue
to be determined by the Application Judge; an issue that is distinct from the
motion before me. I make no findings in this regard and emphasize that my role
is confined to deciding whether the materials requested by CN are relevant for
the purpose of determining this question. In doing so, I must decide whether
the materials identified by CN were, or should have been, before the Arbitrator
when he made his decision and, if they were, whether they are privileged in
light of the principle of deliberative secrecy.
[32]
The materials requested by CN, if they exist,
pertain to documents or communications between the Arbitrator and persons
appointed pursuant to subsection 169.35(3) of the CTA to provide
administrative, technical and legal assistance to him. Although
not a tribunal, per se, any arbitrator appointed pursuant to subsection
169.35(1) of the CTA, is clearly entitled to rely on Agency staff in fulfilling
his or her duties in relation to a matter that has been referred for
arbitration. This is provided for by subsection 169.35(3) of the CTA:
169.35(3) The Agency may, at the
arbitrator’s request, provide administrative, technical and legal assistance to
the arbitrator.
[33]
I agree with LDC’s submission that this
provision expresses Parliament’s recognition of the practical realities under
which level of service arbitrators must reach their decisions, especially in
light of the often extensive evidence presented in the arbitration proceedings
and the tight timelines imposed under the legislative scheme. While it is true
that the arbitration is not an Agency proceeding, it is difficult to foresee
how an arbitrator could reasonably comply with the requirement set out in subsection
169.38(3) of the CTA that he or she issue a decision no more than 45 days (65
days at the outset) after a matter has been referred, without the assistance of
Agency staff. Therefore, in my view, subsection 169.35(3) is merely the
statutory embodiment of the long-standing administrative principle that decision-makers
do not have to do all the work themselves (Syndicat
des employés de production du Québec et de l'Acadie v Canada (Canada Human Rights Commission), [1989] 2 S.C.R. 879, at page 898).
[34]
Notwithstanding the fact that there is little
indication that any of the documents requested by CN even exist, the simple
observation that employees of the Agency were present for the pre-arbitration
teleconferences and attended part, or all, of the arbitration hearing does not
give rise to the presumption of interference. Even if the Arbitrator was
provided assistance by the Agency employees in question, it is trite law that
staff reports are generally not relevant to applications for judicial review (Trans
Quebec and Maritimes Pipeline Inc v National Energy Board, [1984] 2 FC 432
(Fed CA) (“Trans Quebec”)). As held in this Court’s decision in Canada
(Attorney General) v Canada (Commissioner of the Inquiry on the Blood System),
[1996] 2 FC 668 at para 39, an administrative decision-maker will not be required
to disclose documents produced by those who provide assistance unless an
applicant is able to show that the impugned decision was based on documentation
to which the parties were not given an opportunity to respond:
The analysis and opinion in staff memoranda
are irrelevant to the ascertainment of the tribunal’s reasons for decision
because they cannot be assumed to have been adopted by it as its reasons. It
would have to be shown that they amounted to additional evidence.
[Emphasis added]
[35]
The principle was more recently endorsed by the
Federal Court of Appeal and cited in Maax Bath, a case where the
applicant argued that a tribunal’s internal documents were part of the tribunal
record because they may have had an effect on the tribunal’s inquiry and thus
were
relevant for the purposes of Rule 317. In rejecting the request, Madam Justice Trudel,
writing for the Court, stated at para 12:
In its reply to the response of the
Tribunal, the applicant refers to the “summaries and/or compilations of the
information contained in the record and… advice and/or analyses of market,
financial or economic questions” in the Tribunal’s internal documents […]. On the
record as it stands, and in the absence of any reference, by the applicant to
specific passages in the Tribunal’s reasons from which it could reasonably be
inferred that the Tribunal grounded its decision on material not available to
the parties, or that inappropriate tampering with the decision occurred, one
cannot assume that such information has been adopted by the Tribunal in its
reasons, thereby making it relevant to the decision made by the Tribunal or to
the decision that this Court will make (Trans Quebec and Maritimes Pipeline
Inc v National Energy Board, [1984] 2 FC 432; Telus, supra at
paragraph 3).
[Emphasis added]
[36]
I am of the view that this principle is equally
applicable here. Clearly, the materials requested, if they exist, pertain to
documents or communications between the Arbitrator and persons appointed
pursuant to subsection 169.35(3) of the CTA to provide administrative,
technical and legal assistance to him. In the absence of any reference to
specific passages in the Arbitrator’s reasons from which it could reasonably be
inferred that the Arbitrator grounded his decision on material not available to
the parties, or that inappropriate tampering with the decision occurred, it
cannot be assumed that information not provided to the parties was adopted by
the Arbitrator in his reasons. Any such material is irrelevant for the purposes
of this disclosure request unless it can be shown, on a factual basis, that it
amounted to additional evidence.
[37]
CN submits that this presumption of regularity cannot
be used at this stage to deny CN access to this material, citing the decision
of this Court in Gagliano, at paras 77 and 83. I am of the view Gagliano
can be distinguished on its facts, and its application is of limited value in
the present case. In Gagliano, the applicants were able to show
that the materials in question, namely emails sent by members of the public to
the Commissioner of a public inquiry during the course of the investigatory
stage, were before or ought to have been before the Commissioner, and thus were
relevant for the purposes of the Rule 317 request. As Mr. Justice Teitelbaum
wrote at para 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 ltée c 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.
[Emphasis added]
[38]
That is not the case here, where CN has failed
to establish that the documents they believe exist and in question are
relevant. In this regard, CN has done little more than provide a bald assertion
that there was a breach of procedural fairness. Other than these bald
assertions, CN has not identified any passages in the arbitration decision, or
identified any documentation, that shows that information was used that was not
provided to them.
[39]
As noted in Pathak, at para 9, an
applicant cannot seek the judicial review of a decision only because he does
not like it; he must know and indicate the irregularities which, according to
him, vitiate the decision. Therefore in the absence of a factual basis justifying
such a concern, the Court “is not disposed to impose an
obligation to disclose on the Arbitrator which goes beyond what the parties
filed into evidence or in written submissions” (Access, at para
19).
[40]
CN was clear that its Rule 317 request was made
only in reference to those materials before the Arbitrator at the time that he
made his decision, and thus it was not required to provide a factual basis for
the request. However, simply asserting that there is a breach of procedural
fairness without specifying more, while suggesting that the Respondent’s
objections on the basis of deliberative privilege are indicative of the
existence of relevant documents in some form, will not suffice. A request made
pursuant to Rule 317 does not entitle CN to everything that is in the
Arbitrator’s possession; they must show that the material is also relevant
insofar as it may have affected the decision of the Arbitrator, or that it may
affect the decision of this Court in considering the application for judicial
review. Clarifying that this request is only in reference to documents that
were before the Arbitrator, without pointing to any evidence that would rebut
the presumption of regularity, is an attempt to work around the requirement for
a factual basis. As noted by the Federal Court of Appeal in Access, at
para 21:
…The purpose of [Rule 317] is to limit
discovery to documents which were in the hands of the decision-maker when the
decision was made and which were not in the possession of the person making the
request and to require that the requested documents be described in a precise
manner. When dealing with a judicial review, it is not a matter of
requesting the disclosure of any document which could be relevant in the hopes
of later establishing relevance. Such a procedure is entirely inconsistent
with the summary nature of judicial review. If the circumstances are such
that it is necessary to broaden the scope of discovery, the party demanding
more complete disclosure has the burden of advancing the evidence justifying
the request. It is this final element that is completely lacking in this case.
[Emphasis added]
[41]
This view was recently reiterated by the Federal
Court of Appeal in Marchand, at para 4, where the Court noted that the
requirement for a factual basis is particularly important because it prevents
an applicant from raising a breach of procedural fairness as grounds in its
application for judicial review simply to gain access to material that the it
could not otherwise access.
[42]
As a result, CN has failed to persuade me that
the documents sought to be produced are relevant and necessary (Maax Bath,
at para 10). It follows that there is no basis for this Court to direct the Arbitrator to list and produce the
materials CN seeks for review by the Court.
[43]
I am satisfied that this issue is dispositive of
the motion. However, in the event that my analysis of the relevant
jurisprudence is wrong, I am satisfied that material in question would
otherwise be shielded by the principle of deliberative secrecy and therefore be
immune from production.
[44]
As noted by CN, the concept of deliberative
secrecy is fundamental to the constitutional principle of judicial
independence; a judge has the right to refuse to answer questions as to how and
why he or she arrived at a particular conclusion (MacKeigan v Hickman,
[1989] 2 S.C.R. 796, 61 DLR (4th) 688 at 830-831). CN takes the position that deliberative
secrecy is not applicable in this case, submitting that the principle can only
be applied in the context of institutional decision making and arguing that the
impugned decision is that of an individual arbitrator who was not entitled to
deliberate with any other parties.
[45]
In Québec
(Commission des affaires sociales) c Tremblay,
[1992] 1 S.C.R. 952 (“Tremblay”), the Supreme Court examined how the
principle of deliberative secrecy applied in the context of administrative
tribunals. Writing for the majority, at page 966, Mr.
Justice Gonthier noted that, although the principle was
somewhat limited in its application, it was still relevant:
Accordingly, it seems to me that by the very
nature of the control exercised over their decisions administrative tribunals
cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of
course, secrecy remains the rule, but it may none the less be lifted when the
litigant can present valid reasons for believing that the process followed did
not comply with the rules of natural justice.
[Emphasis added]
[46]
While it is clear that administrative decision-makers
cannot rely on the principle of deliberative secrecy to the same extent as
judicial adjudicators, I do not agree that the doctrine is limited only to
institutional decision-makers. In this respect, I accept LDC’s submission that
the principle serves to protect the independence and impartiality of the
decision-maker in the adjudication of an issue and is applicable to any
adjudicative process, irrespective of the character of the decision-maker (Noble
China Inc v Lei (1998), 42 OR (3d) 69, at paras 19-22). Although not on
analogous grounds, this view is supported by the decision of the Federal Court
of Appeal in Maax Bath, at para 14, which emphasizes that it is the
broader notion of judicial impartiality in adjudication which the principle of
deliberative secrecy serves to protect:
There can be little question here that the
applicant is seeking access to documents consulted by or prepared for the
Tribunal members as they were engaged in their deliberative role to determine
how and why the members reached their impugned conclusions. I agree with the
respondent that this is a matter of privilege going to judicial impartiality in
adjudication.
[Emphasis added]
[47]
Furthermore, I do not accept CN’s submission
that the Arbitrator, in seeking to rely on the principle of deliberative
secrecy, has the onus of proving, with affidavit evidence, the relevant facts
and circumstances necessary to establish such a claim. While it is true that
the veil of deliberative secrecy may be pierced, the threshold for doing so is
high and this Court has held that it is the party that is seeking the
disclosure of material that needs to establish valid reasons for believing that
the rules of natural justice were not followed (Stevens v Canada (Attorney
General), [2001] 1 FC 156, at paras 36-42, aff’d [2002] FCJ No 142).
[48]
I do not believe that the simple fact that
individuals employed by the Agency were present at the pre-arbitration
conferences and arbitration hearing is enough to pierce the veil of
deliberative secrecy. In Taseko, the Federal Court of Appeal dealt with
a similar matter. At issue was the applicant’s suspicions that an independent
Federal Review Panel, established in accordance with the Canadian
Environmental Assessment Act, SC 1992 c 37, had relied too heavily on its
secretariat to draft an environmental report assessing the impact of a mining
proposal. At the heart of the allegations was the fact that secretariat
personnel had spent approximately 3,000 hours working on the report. The
applicant brought a motion pursuant to Rules 317 and 318, requesting production
of all documents, including correspondence and notes, pertaining to the Federal
Review Panel’s instruction to its secretariat concerning responsibilities for
the drafting of the report and any related responses.
[49]
In dismissing the appeal, Mr. Justice Nadon found,
at para 3, that “the fact that the Secretariat
personnel spent approximately 3000 hours working on the Review Panel’s report
does not constitute, per se, a sufficient basis to conclude the existence of
valid or good ground justifying the lifting of the veil of secrecy” and
refused to order the production of the documents in question.
[50]
Just as in Taseko, I do not have any real
evidence before me that would convince me to lift the veil of deliberative
secrecy. Consequently, I find that CN’s argument that the attendance of Agency
employees for part or all of the pre-arbitration teleconference is indicative
of a breach of procedural fairness to be insufficient.
[51]
For this reason, I am of the view that it is
unnecessary to make an order for the production of documents because at this
point, and without straying into the territory of the Applications Judge, I
find that there are “no valid reasons for believing
that the process followed did not comply with the rules of natural justice”
(Taseko, at para 2, citing Tremblay). The motion is dismissed.
[52]
Both parties sought costs but due to the fact
that this was the first time that the level of service arbitration provisions
of the CTA have been before the Federal Court, the motion, though dismissed,
was necessary so that parameters could be set for the future. For that reason
no costs will be awarded.
THIS COURT ORDERS that:
1.
The motion is dismissed.
2.
Parties will bear their own costs of this
motion.
“Glennys L. McVeigh”
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