Date: 20130705
Docket: A-20-13
Citation: 2013 FCA 178
Present: STRATAS
J.A.
BETWEEN:
INTERNATIONAL RELIEF FUND FOR THE
AFFLICTED AND NEEDY (CANADA)
Appellant
and
MINISTER OF NATIONAL
REVENUE
Respondent
REASONS FOR ORDER
STRATAS J.A.
A.
The
pending appeal
[1]
The
appellant, the International Relief Fund for the Afflicted and Needy (Canada),
used to be registered as a charity under the Income Tax Act, R.S.C.
1985, c. 1 (5th Supp.). On December 11, 2011, the Minister of National Revenue
issued a Notice of Confirmation of her decision to revoke the appellant’s
registration. The appellant appeals the December 11, 2011 Notice under
subsection 172(3) of the Act.
[2]
In
its appeal, the appellant alleges that the Minister abused her discretion and
acted unreasonably, in a procedurally unfair manner, and with a closed mind.
The appellant also alleges that the Minister’s decision violates sections 2 and
15 of the Charter by violating its “associational rights with partner
organizations abroad and charitable contributing communities and individuals in
Canada” and its equality rights.
B. The nature of the
pending appeal
[3]
The
pending appeal is from an administrative decision, the making of the Notice,
made by an administrative decision-maker, the Minister. The only relief sought
is the “vacating of the assessment,” which I take to mean the setting aside of
the Notice.
[4]
Although
prosecuted as an appeal, in reality this is an administrative law review: Canadian
Committee for the Tel Aviv Foundation v. Canada, 2002 FCA 72 at paragraph
27.
C. The appellant’s motion
[5]
In
this motion, the appellant seeks to introduce into this appeal certain material
that was not before the Minister when she made her Notice. The appellant
phrases its motion as one seeking a ruling that certain “fresh evidence” should
be admitted.
D. Should the
motion be determined at this time?
[6]
Questions
of admissibility in administrative law reviews can be deferred to the panel
hearing the merits of the review.
[7]
However,
questions of admissibility should be resolved on pre-hearing motion if
resolving the questions would allow
the hearing to proceed in a more timely, orderly and efficient way, the questions
involve a clear question of law rather than discretionary matters, and the
answers to the questions are clear cut or obvious: Association of Universities and
Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at
paragraphs 10-13; Canadian
Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 8; McConnell v.
Canada (Canadian Human Rights Commission), 2004 FC 817, aff’d 2005 FCA 389.
[8]
In my
view, the appellant’s motion can be determined at this time. It raises questions
that are clear cut and non-discretionary. Resolving them now would allow the
hearing to proceed in a more timely, orderly and efficient way.
E. The material that is
admissible on an administrative law review: the general rule
[9]
As
a general rule, the only material that can appear in the appeal book on an
administrative law review is material that was before the Minister when she
made her decision: Renaissance International v. Minister of National Revenue,
[1983] 1 F.C. 860 (C.A.); Stawicki v. Canada (Minister of National Revenue),
2006 FCA 262; United Scottish Cultural Society v. Canada (Canada Revenue
Agency), 2004 FCA 324 at paragraph 5.
[10]
Limited
exceptions to the general rule exist: Association of Universities, supra
at paragraph 20; McFadyen v. Canada (Attorney General), 2005 FCA 360 at
paragraphs 14-15; Keeprite Workers' Independent Workers Union et al. and Keeprite
Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. C.A.). These include materials:
•
that
provide general
background in circumstances where that information might assist;
•
necessary
to bring to the attention of the reviewing court procedural defects, such as
bias, that cannot be found in the evidentiary record of the administrative
decision-maker; and
•
that
highlight the complete absence of evidence before the administrative
decision-maker when it made a particular finding.
These exceptions are best understood not as rules to
be blindly applied, but rather applied sensitively in light of the differing roles played by
the reviewing court and the administrative decision-maker: Association of
Universities,
supra at paragraphs 14-19.
F. Applying
these principles: material available to the appellant before the December 11,
2012 Notice
[11]
In
a proposal letter dated August 28, 2012, the Minister set a deadline of September
28, 2012 for the appellant to provide responding submissions. However, the
Minister added that she would “take into consideration any additional
information provided to [her] before reaching a final decision [issuing a
Notice] in this matter.”
[12]
On
September 28, 2012, counsel for the appellant wrote the Minister, advising her
that she had just received some materials from the appellant. She asked for an
extension of time to October 1, 2012 to make submissions. The Minister agreed
to the extension.
[13]
In
my view, this shows the Minister’s willingness and flexibility to receive further
information and submissions before she decided the matter, consistent with the
promise made in her proposal letter of August 28, 2012.
[14]
Much
of the material the appellant seeks to introduce into this appeal is dated
between October 1, 2012 and the date of the Minister’s decision, i.e.,
the December 11, 2012 Notice. The appellant could have written the Minister and
could have asked to submit this material. But the appellant did not do so.
[15]
In
my view, the appellant cannot now seek to introduce in this appeal the material
available to it before December 11, 2012: Johnson v. Canada (Attorney General), 2011 FCA 76 at paragraph 27. With diligence, the appellant could
have provided this material to the Minister before she issued the Notice on
December 11, 2012.
[16]
Accordingly,
in this motion, I shall only consider material sought to be introduced by the
appellant that it obtained on December 11, 2012 or later.
G. Applying
these principles: material available to the appellant only on December 11, 2012
or later
(1) News
reports
[17]
Exhibit
“A” to the Affidavit of Naseer Syed are a series of news reports. The appellant
alleges that these documents show the Minister was biased. They show that the
Government of Canada had particularly warm ties with and an outlook similar to the
Government of Israel.
[18]
However,
I note that in its October 1, 2012 submissions letter the appellant did not put
an allegation of bias squarely to the Minister. In that letter, the appellant
asserted some limited facts that could demonstrate a certain mindset on the
part of some in the Government of Canada. But that is not an allegation of bias.
[19]
Allegations
of bias are most serious and must be raised clearly at the earliest possible
time: Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R.
892; In
re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103
(C.A.). One
cannot discover facts that might indicate impermissible bias on the part of the
administrative decision-maker, remain silent on the matter of bias, await the
outcome of the administrative decision, and then, if the decision is adverse,
claim on appeal that the decision-maker was biased.
[20]
Some
of the allegations made in the October 1, 2012 submissions letter and the
documents in Exhibit “A” to the Affidavit that predate the December 11, 2012
Notice show that the appellant knew many of the facts it now seeks to put
before the Court in support of a claim of bias. It could have clearly raised
bias before the December 11, 2012 Notice was made, but did not.
[21]
This
conclusion is not only founded upon the authorities cited. It is also founded
upon procedural fairness to the Minister. Had this bias issue been clearly raised,
the Minister would have been able to respond in her decision. Then this Court
would have the benefit, on review, of the formal allegation of bias and the
decision-maker’s response.
[22]
There
is a further reason for not including in the appeal book the documents in
Exhibit “A” that postdate the December 11, 2012 Notice (Documents 13 to 18). In
my view, the appellant has not established the relevance and materiality of
these documents. In supplementary submissions made after a teleconference
(described below), the appellant states that these documents “provide a further
and more contemporary portrait of the strengthening of ties between Canada and Israel” [my emphasis]. Contemporary they are – by and large, they tend to record
incidents reflective of the general state of Canada-Israel relations at the
time they were written, which was after the December 11, 2012 Notice. I am not
persuaded they speak to the orientation or apparent orientation of the Minister
when she issued the Notice.
[23]
Therefore,
the documents in Exhibit “A” shall not appear in the appeal book.
[24]
This
ruling does not foreclose the appellant from relying upon the materials
properly in the appeal book and submitting, as it intends to do, that the
Minister’s decision was unreasonable, made without regard to the evidence, or
based on improper considerations (assuming, for the sake of argument, that the
last two grounds have not been subsumed by post-Dunsmuir reasonableness
review).
(2) Documents
pertaining to a book said to be defamatory
[25]
These
documents appear in Exhibit “D” to the Affidavit of Naseer Syed. They all
appear to postdate the December 11, 2012 Notice.
[26]
These
documents have no bearing on the legality of the Minister’s decision. Either
the Minister had sufficient material before her to make a decision within a
range of reasonable outcomes on December 11, 2012, or she did not.
[27]
In
this case, these post-decision materials do not affect this question. Rather,
the attempt to adduce these materials smacks as an attempt to introduce more information
of the sort that was already before the Minister at the time she made her
decision. These materials also have no relevance to the appellant’s other
grounds for appeal.
[28]
Therefore,
the documents in Exhibit “D” shall not appear in the appeal book.
(3) Access
to Information documents in unredacted form
[29]
The
Affidavit of Naseer Syed describes a number of documents produced to the
appellants in response to access to information requests. Some of these were produced
with redactions. These are attached as Exhibit “H” to the Affidavit.
[30]
In
this motion, the appellant seeks an order that the Minister produce these
documents in unredacted form. The appellant also seeks an order that these be
included in the appeal book.
[31]
The
difficulty with the appellant’s submission is that these documents were only in
redacted form before the Minister. When she made her decision, the Minister did
not consider the documents in unredacted form: Affidavit of Martina Bourque,
paragraph 16. The appellant neither cross-examined Ms. Bourque on this
statement nor attempt to rebut it. It is generally “not appropriate to order the
tribunal to produce information beyond what was before it when it made its
decision”: Ominayak
v. Verre
(2000), 193 F.T.R. 160 (F.C.A.).
[32]
The appellant submits that the
failure of the Minister to produce the documents in unredacted form in the proceedings leading up to the Notice worked procedural
unfairness. However, in those proceedings, the appellant did not request the
Minister to produce the documents in unredacted form.
[33]
Therefore,
the access to information documents in unredacted form need not be produced by
the Minister. They shall not appear in the appeal book. The access to
information documents with redactions that were considered by the Minister
shall appear in the appeal book.
(4) Documents
pertaining to bank termination notices
[34]
These
documents, appearing in Exhibit “C” to the Affidavit of Naseer Syed, relate to
the banking privileges of the appellant that were terminated after the Minister’s
decision on December 11, 2012.
[35]
I
am not satisfied these documents have any bearing on whether the Minister made
a reasonable decision on December 11, 2012, committed procedural unfairness
leading up to the making of the decision, or was biased. The appellant also has
not convinced me that these have any bearing upon whether the Minister’s
decision breached the Charter rights of the appellant.
[36]
Initially,
this motion was to be determined on written materials alone. However, having
read the written materials, I invited the parties to attend by teleconference
to answer certain questions. I am grateful for their attendance and for their
subsequent written submissions.
[37]
In
the teleconference, the appellant confirmed it is arguing in this appeal that
the Minister’s allegations that the appellant was associated with a certain
terrorist group caused it harm, such as the termination of its banking
privileges, effects on its finances, and the termination of its involvement in
the Reviving the Islamic Spirit event. The appellant says that these effects,
and perhaps others, manifest injury to its Charter rights and freedoms,
particularly its associational freedoms and equality rights. The appellant is
not arguing that the issuance of the Notice itself infringed the Charter.
[38]
The
record on this motion shows that, indeed, the Minister alleged that the
appellant was associated with a certain terrorist group. But there is no
evidence that the Minister decided to disseminate those allegations to anyone
but the appellant for the purpose of obtaining the appellant’s evidence and
submissions on the matter.
[39]
The
Notice, itself, does not refer to the allegations. Rather, as one of the four
grounds for revocation, it says that the appellant did not “maintain direction
and control over the use of its resources and failed to implement due diligence
procedures,” contrary to paragraph 168(1)(b) of the Act. In the
teleconference, the Minister confirmed that the allegations were relevant only
to this ground of revocation.
[40]
The
mere making of allegations is not a decision susceptible to review under the Federal
Courts Act, R.S.C. 1985, c. F-7. If recourse for that can be had, it lies
elsewhere.
[41]
Only
the legality of the Notice is before us in this appeal, not the allegations
made. This is confirmed by the wording of the appellant’s amended notice of
appeal and the relief sought: see paragraph 3 above.
[42]
The
effects of the allegations made, said to work an infringement of the Charter,
are irrelevant to the legality of the Notice. Accordingly, the documents
appearing in Exhibit “C” to the Affidavit of Naseer Syed shall not appear in
the appeal book.
(5) Documents
relating to the 2012 finances of the appellant
[43]
These
documents, collected at Exhibit “E” to the Affidavit of Naseer Syed, show the financial
effects of the Minister’s decision. But these are irrelevant to the analysis
of reasonableness of the decision made on December 11, 2012. Either the
Minister had sufficient material before her to make a decision within a range
of reasonable outcomes on December 11, 2012, or she did not.
[44]
The
appellant also has not convinced me that these have any bearing upon the other
grounds raised by it.
[45]
To
the extent that the appellant is saying that the effects have been caused by
the Minister’s making of allegations, as I have explained above, that is not a
matter susceptible to review. Only the legality of the Notice is in issue
before us.
[46]
Accordingly,
the documents, collected at Exhibit “E” to the Affidavit of Naseer Syed, are
not relevant to the appeal and shall not be included in the appeal book.
(6) Documents
concerning the Reviving the Islamic Spirit event
[47]
The
documents in Exhibit “B” to the Affidavit of Naseer Syed show that the appellant
had planned to be a major sponsor of this event, which took place after the
revocation of the appellant’s charity status, but had to withdraw from it.
[48]
These
have no bearing on the legality of the Minister’s decision made on December 11,
2012. Similarly, to the extent that these are relevant to the appellant’s
Charter arguments and relate to the Minister’s allegations, only the decision
made (the Notice), not the allegations, are properly before us: see paragraphs
37-42 above.
H. Disposition of the
motion
[49]
Overall,
none of the material described in the Affidavit of Naseer Syed shall appear in
the appeal book.
[50]
Commendably,
the parties have made considerable progress towards reaching an agreement on
the contents of the appeal book under Rule 343. This is shown by a lengthy
draft agreement in the record before me. For the purposes of Rule 343, I shall deem
time to begin as of the date of my Order. This should give the parties enough
time to agree on the contents of the appeal book and file it with the Court,
or, alternatively, to bring a motion to resolve any disputes. The respondent
shall have its costs of the motion.
[51]
I
thank the parties for their helpful submissions.
"David
Stratas"
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