Canada (Attorney General) v. Canadian North Inc., 2007 FCA 42

Date: 20070112

Docket: A-520-06

Citation: 2007 FCA 42

Present:          SHARLOW J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA

Applicant

and

CANADIAN NORTH INC., CANADA POST CORPORATION

and BRADLEY AIR SERVICES LIMITED (c.o.b. AS FIRST AIR)

Respondents

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on January 12, 2007.

REASONS FOR ORDER BY:                                                                                  SHARLOW J.A.

Date: 20070112

Docket: A-520-06

Citation: 2007 FCA 42

Present:          SHARLOW J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA

Applicant

and

CANADIAN NORTH INC., CANADA POST CORPORATION

and BRADLEY AIR SERVICES LIMITED (c.o.b. AS FIRST AIR)

Respondents

REASONS FOR ORDER

SHARLOW J.A.

[1]               This order is required because it appears that certain counsel practicing in matters before the Canadian International Trade Tribunal (CITT) have failed to understand their obligations under the Federal Courts Rules when challenging a procurement decision by way of application for judicial review. Such applications are brought in the Federal Court of Appeal pursuant to paragraph 28(1)(e) of the Federal Courts Act.

[2]               All applications for judicial review are governed by Part 5 of the Federal Courts Rules. The first step is the filing of the application (Rule 301), which must be served on all respondents (Rule 304). Any respondent who wishes to oppose the application must serve and file a notice of appearance (Rule 305).

[3]               According to Rule 306, the applicant must, within a specified deadline, serve and file its supporting affidavits and documentary exhibits. Typically, one of the supporting affidavits will identify the documentary exhibits, which include some or all of the documents comprising the tribunal record. The applicant may choose to append to such an affidavit all of the documents from the tribunal record, or only those that the applicant wishes to rely on to support its application for judicial review.

[4]               According to Rule 307, the respondent may also choose to file one or more supporting affidavits. If the applicant’s affidavits do not append all of the documents comprising the tribunal record, and the respondent believes that the Court requires one or more additional documents from the tribunal record to dispose properly of the application for judicial review, the respondent may append those documents to an affidavit served and filed under Rule 307.

[5]               It is normally expected that the respondent, in preparing its affidavits, will avoid unnecessary duplication. Generally, it is not necessary for a respondent to append to its affidavits any portions of the tribunal record that have been appended to one of the applicant’s affidavits.

[6]               The Federal Courts Rules contemplate cross-examination on all affidavits (Rule 308).

[7]               The next step is the filing of records. The applicant’s record must be served and filed pursuant to Rule 309. It typically includes the affidavits filed by the applicant under Rule 306 and the transcripts of any cross-examinations conducted by the applicant under Rule 308.

[8]               The respondent’s record must be served and filed pursuant to Rule 310. It typically includes the affidavits filed by the respondent under Rule 307 and the transcripts of any cross-examinations conducted by the respondent under Rule 308.

[9]               The Court, in considering the application for judicial review, considers only the documents in the applicant’s record or the respondent’s record. The contents of the records must be determined with that in mind.

[10]           In certain applications for judicial review in relation to procurement decisions made by the CITT, confusion apparently has arisen because of Rule 317. Rule 317 is a tool to enable an applicant or a respondent in an application for judicial review to obtain a copy of one or more document that are included in the tribunal record, if the party does not already have a copy. Rule 317 permits the party to request the tribunal to provide it with a copy of any documents that are identified in the request.  In the case of an applicant, the request may be made in the notice of application for judicial review. Any other party makes the request by letter, which must be served on all other parties.

[11]           Rule 318 provides the procedure by which the tribunal must respond to a request under Rule 317. As Rule 317 permits a party to request only copies of documents that that party does not have, the tribunal may properly refuse to provide a copy of a document that the requester already has. However, if the tribunal accedes to the request, it must do so by providing a certified copy to the requester and to the Court. That provides some assurance of authenticity.

[12]           The Federal Courts Rules do not contemplate an application for judicial review being heard on the basis of a tribunal record filed under Rule 318. The reason is that in most cases, the tribunal record contains numerous documents that are not needed to deal with the issues raised in the application for judicial review. It would not be helpful, and indeed it would be inefficient and wasteful, to require or permit the entire tribunal record to be placed before the Court in every case.

[13]           In this case, the applicant has sought directions to file, as part of its application record, TEN volumes of material that, according to the applicant, comprises the tribunal record. Apparently, five of those volumes comprise the “public version” of the tribunal record, and five comprise the “confidential” version. The applicant has not said or suggested that every document in the tribunal record is relevant to the issues raised in the application for judicial review.

[14]           Normally, a request for a direction to file the tribunal record as an independent document would be refused. In this case I am prepared to grant the request, but only because the application has been expedited and the hearing date has already been set.

[15]           I am advised that this is not the first time that counsel practicing in procurement matters have failed to understand the Rules summarized above. If those Rules present special problems in procurement matters, it is open to anyone to make a proposal to the Federal Courts Rules Committee for an amendment to the Federal Courts Rules. However, as long as the Rules are as they are, all counsel should be prepared to abide by them.

“K. Sharlow”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-520-06

STYLE OF CAUSE:                                                              AGC v. CITT ET AL

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                             Sharlow J.A.

DATED:                                                                                 January 12, 2007

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD:

John H. Sims, Q.C.                                                                  FOR THE APPLICANT

Deputy Attorney General of Canada

Blake, Cassels & Graydon LLP                                                FOR THE RESPONDENT,

Ottawa, Ontario                                                                       Canadian North Inc.

Stikeman Elliott LLP                                                                 FOR THE RESPONDENT,

Ottawa, Ontario                                                                       Canada Post Corporation

Borden Ladner Gervais LLP                                                     FOR THE RESPONDENT,

Ottawa, Ontario                                                                       First Air