Date: 19990915
Docket: A-333-98
OTTAWA, ONTARIO, THE 15TH DAY OF SEPTEMBER
CORAM: ROBERTSON J.A.
NÖEL J.A.
SEXTON J.A.
BETWEEN:
Appellant
(Applicant)
- AND -
| THE MINISTER OF NATIONAL REVENUE AND THE ATTORNEY GENERAL OF CANADA |
Respondents
(Respondents)
JUDGMENT
ROBERTSON J.A.
[1] The appeal is allowed without costs. The decision of Nadon J. dated May 11, 1998 is set aside and the matter remitted to him in accordance with the Reasons for Judgment
"J.T. ROBERTSON"
J.A.
Date: 19990915
Docket: A-333-98
CORAM: ROBERTSON J.A.
NÖEL J.A.
SEXTON J.A.
BETWEEN:
Appellant
(Applicants)
- AND -
| THE MINISTER OF NATIONAL REVENUE AND THE ATTORNEY GENERAL OF CANADA |
Heard at Ottawa, Ontario, Tuesday, September 14, 1999
Judgment delivered at Ottawa, Ontario, Wednesday, September 15, 1999
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: ROBERTSON J.A.
NÖEL J.A.
Date: 19990915
Docket: A-333-98
CORAM: ROBERTSON J.A.
NÖEL J.A.
SEXTON J.A.
BETWEEN:
Appellant
(Applicant)
- AND -
| THE MINISTER OF NATIONAL REVENUE AND THE ATTORNEY GENERAL OF CANADA |
Respondents
(Respondents)
REASONS FOR JUDGMENT
SEXTON J.A.
Facts
[1] The appellant operates the Ambassador Bridge Duty Free Shop in Windsor, Ontario. On February 2, 1998, the Minister of National Revenue amended the appellant's licence to operate a duty free shop. The amendment restricted the appellant from selling duty and tax free fuel. It should be noted that the Minister's decision was taken on a national basis and the licence of every land border duty free shop in Canada was amended contemporaneously to specify the same prohibition. In general it has not been permissible to sell gasoline on a duty free basis. On March 9, 1998, the appellant filed a motion to quash and to set aside the Minister's amendment. The Originating Notice of Motion also contained a request for materials possessed by the Minister which the appellant wishes to use in its application for judicial review. The request was made pursuant to former Rule 1612 of the Federal Court Rules (now Rule 317). The request encompassed a potentially large number of records, many of which are clearly not producible because they cannot be found or are not relevant.
[2] In response to the appellant's request, the Minister produced three documents:
| (1) a memorandum dated October 20, 1997 addressed to the Minister; |
| 2) a memorandum dated February 2, 1998 addressed to the Minister This memorandum also made reference to the October 20, 1997 memorandum. |
| (3) a study by a professor which was mentioned in the February 2, 1998 memorandum. |
The Minister objected to the production of any additional material.
[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 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
- 3 -
actually before the Minister when he made his decision. Therefore, since the only two documents that were before the Minister were the memoranda dated February 2, 1998 and October 20, 1997, the Minister had complied with his obligation. The Minister had in fact produced certain additional material namely the study of the professor.
[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.
[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.
[6] The appellant has raised for the first time in this Court the point that both memoranda show on the final page the word "attachments" and the appellant seeks production of them. If there were attachments, these also would have been before the Minister. To the extent that there were any attachments, they should be produced.
[7] Nadon J. also determined whether certain deleted portions of the two memoranda were protected by solicitor/client privilege and expressed the view that since the excerpted portions were truly legal advice, the respondent could not be compelled to produce them. Unfortunately, Nadon J. did not have before him the excerpted portions and therefore was unable to determine whether or not indeed there was solicitor/client privilege or whether it had been waived. It is clear that a court must examine the actual statements said to be privileged in order to draw a conclusion as to whether privilege arises or whether it has been waived. This has been made clear by the Supreme Court of Canada in R. Campbell [1999], S.C.J. No. 16 (April 22, 1999) and in Solosky v. The Queen [1980] 1 S.C.R., 821 at 837.
[8] For the above reasons, the appeal should be allowed, but without costs. The decision of Nadon J. dated May 11, 1998 should be set aside and the matter remitted to him with the direction to review the expunged portions in order to determine whether solicitor/client privilege exists and whether it has been waived. If there are "attachments" to the memoranda, they should be produced. If no such attachments exist, the respondent should be allowed to file affidavit material to this effect. The appeal is dismissed in all other respects..
"J. EDGAR SEXTON"
J.A.
"I agree:
J.T. Robertson J.A.
"I agree:
Marc Nöel J.A."
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