Date:
20070608
Docket:
A-184-07
Citation: 2007 FCA 224
Present: PELLETIER
J.A.
BETWEEN:
THE ACCESS INFORMATION AGENCY INC.
Applicant
and
ATTORNEY GENERAL OF CANADA
(TRANSPORT CANADA)
Respondent
and
IRENA LANG CONSULTING
Respondent
REASONS FOR
ORDER
PELLETIER
J.A.
[1]
The
applicant, the Access Information Agency Inc., filed an application for
judicial review of a decision of the Canadian International Trade Tribunal (the
Tribunal). In its application for judicial review, the applicant included a
request for transmission of certain materials in the Tribunal’s possession, a
request that reads as follows:
[translation]
By the
service of this application for judicial review on the Canadian International
Trade Tribunal, in accordance with section 317 of the Federal Court
Rules, 1998 [sic] the applicant REQUIRES THAT the Canadian
International Trade Tribunal sent it and transmit to the Registry of the
Federal Court of Appeal, a complete and certified copy of all of the documents
in the Tribunal’s record bearing number PR-2006-031;
including all written submissions and documents filed with the Tribunal in the
context of its investigation procedure, whether these documents were entered
into evidence or not, and all correspondence documents, in any format
whatsoever, from all individuals who participated directly or indirectly in
drafting the decision and orders made in the matter.
[2]
The
Tribunal objected to this request on the basis that it could contemplate
communications protected by professional privilege and that it could also go so
far as to include communications which, if filed, would compromise the Tribunal
members’ privileged deliberations. Further, the Tribunal objected to the
request on the grounds that the relevance of the documents requested by the
applicant had not been established. On the other hand, the Tribunal had
provided the applicant with all but two of the exhibits filed for the purposes
of the procedures leading to the decision under judicial review.
[3]
The
applicant disputes the Tribunal’s refusal to disclose the documents other than
the exhibits. It filed this motion in which it requests that the Court:
-
Give the
parties directions to file submissions regarding an objection to a request for
material whose disclosure is challenged.
-
After
hearing the parties, make an order requiring the Tribunal to transmit a
complete and certified copy of the documents described in its request to the
Registry and to the applicant.
-
Give it an
additional 20 days to file and serve its affidavit and its documentary
evidence.
-
Give it
additional time to file and serve the applicant’s record.
[4]
The
Tribunal filed the affidavit of Hélène Nadeau, the Tribunal’s secretary, in
support of its objection. She acknowledged that two exhibits filed at the
hearings had not been transmitted to the applicant. In the case of exhibit
PR-2006-031-14, it was sent to the applicant’s counsel as soon as the Tribunal
learned that it had not been included in the documents sent to the applicant.
With regard to exhibit PR-2006-031-34A, Ms. Nadeau stated that this was a
confidential exhibit [translation] “containing scoring tables developed and used
by the Department of Transport to evaluate bids received for procurement
purposes, which is the subject of the applicant’s complaint.” Ms. Nadeau
noted the fact that this document is protected [translation] “by section 45 of
the Canadian International Trade Tribunal Act, and given that the
applicant’s counsel is also the applicant’s director”, he is not entitled to
this document.
[5]
Also
according to the affidavit of Ms. Nadeau, the presiding member is assisted by
the Tribunal’s personnel, [translation] “usually counsel, a research officer and a
research director”. They prepare various documents for the presiding members
and may also assist them in drafting the reasons [translation] “in accordance with the
member’s directions and very specific instructions.” The documents prepared by
these personnel are not filed into the official record. Tribunal panel members
are also assisted by the Tribunal’s personnel in the form of briefing notes.
Ms. Nadeau claims that the disclosure of the Tribunal’s internal documentation
would compromise the confidentiality of communications between members of the
Tribunal and their legal counsel, as well as the privilege extending to their
deliberations. Further, the relevance of this documentation had not been
established.
[6]
In
its reply record, the applicant says that it agreed to have exhibit
PR-2006-031-34A transmitted to the Court under seal for the Court to decide
whether it is privileged. It justifies its request for the other documents by
relying on page iii of the Tribunal’s decision listing the names of the
tribunal director, the senior investigator and legal counsel for the Tribunal.
The applicant stated that it has the right to ensure that there was no breach
of procedural fairness, particularly the audi alteram partem rule. That said,
the applicant has not put forward any circumstance suggesting that there was
interference in this matter.
ANALYSIS
[7]
It
has been consistently held in the case law that the requesting party is
entitled to be sent everything that was before the decision-maker (and that the
applicant does not have in its possession) at the time the decision at issue
was made: 1185740 Ontario Ltd. v. Canada (Minister of National Revenue),
[1999] F.C.J. No. 1432 (F.C.A.).
[8]
The
Court points out that the French version of section 317 of the Rules
appears to lack an element which appears in the English version of the same
section, specifically that the right to require communication of material is
limited to material that is not in the possession of the party when the party’s
request is made. Given that the applicant participated fully in the Tribunal
hearings, it would be surprising that it would not have any of the exhibits
filed during the hearing of its complaint. The Tribunal does not therefore have
to deliver to the applicant what it already has in its hands. That being said,
the Court does not think that an order need be made on this point, given the
Tribunal’s willingness to give the applicant all but one of the exhibits.
[9]
With
regard to exhibit PR-2006-031-34A, the Tribunal submits that this document is
confidential under section 45 of the Act. Subsection 45(1) of the Act
reads as follows:
|
45. (1) Where a person designates information as confidential
pursuant to paragraph 46(1)( a) and that designation is not withdrawn
by that person, no member and no person employed in the federal public
administration who comes into possession of that information while holding
that office or being so employed shall, either before or after ceasing to
hold that office or being so employed, knowingly disclose that information,
or knowingly allow it to be disclosed, to any other person in any manner that
is calculated or likely to make it available for the use of any business
competitor or rival of any person to whose business or affairs the information
relates.
|
45. (1) Les agents de
l'administration publique fédérale et les membres qui ont en leur possession,
au cours de leur emploi ou de leur mandat, selon le cas, des renseignements
désignés comme confidentiels aux termes de l'alinéa 46(1)a) ne peuvent, si la
personne qui les a désignés ou fournis n'a pas renoncé à leur caractère
confidentiel, sciemment les communiquer ou laisser communiquer de manière à
ce qu'ils puissent être vraisemblablement utilisés par un concurrent de la
personne dont l'entreprise ou les activités sont concernées par les
renseignements. Cette interdiction s'applique même après que l'agent ou le
membre a cessé ses fonctions.
|
[10]
Paragraph
46(1)(a), referred to in subsection 45(1), appears below:
|
46.
(1) Where a person who provides information to the Tribunal for the purposes
of proceedings before the Tribunal wishes some or all of the information to
be kept confidential, the person shall submit to the Tribunal, at the time
the information is provided,
(a)
a statement designating as confidential the information that the person
wishes to be kept confidential, together with an explanation as to why that
information is designated as confidential; and
(b)
a non-confidential edited version or non-confidential summary of the information
designated as confidential pursuant to paragraph (a) in sufficient detail to
convey a reasonable understanding of the substance of the information or a
statement
(i)
that such a non-confidential edited version or non-confidential summary
cannot be made, or
(ii)
that such a non-confidential edited version or non-confidential summary would
disclose facts that the person has a proper reason for wishing to keep
confidential, together with an explanation that justifies the making of the
statement.
|
46.
(1) La personne qui fournit des renseignements au Tribunal dans le cadre
d'une procédure prévue par la présente loi et qui désire qu'ils soient gardés
confidentiels en tout ou en partie fournit en même temps que les
renseignements :
a) d'une part, une déclaration désignant comme
tels les renseignements qu'elle veut garder confidentiels avec l'explication
à l'appui;
b) d'autre part, soit une version ne comportant
pas les renseignements désignés comme confidentiels ou un résumé ne
comportant pas de tels renseignements suffisamment précis pour permettre de
les comprendre, soit une déclaration accompagnée d'une explication destinée à
la justifier, énonçant, selon le cas:
(i)
qu'il est impossible de faire la version ou le résumé en question,
(ii)
qu'une version ou un résumé communiquerait des faits qu'elle désire
valablement garder confidentiels.
|
[11]
According
to these provisions, the person who provides information to the Tribunal can
file a statement to the effect that the information is confidential.
[12]
If
the Tribunal does not take issue with this statement, the confidential
information cannot be disclosed to a competitor of the person who provided it.
However, this information can be disclosed to opposing counsel and to its
expert under conditions stipulated by the Tribunal regarding confidentiality
(subsection 45(3) of the Act). For the purposes of this provision “counsel”
does not include a person who is a party’s director.
[13]
If,
after hearing the parties, the Tribunal does not agree that the information is
confidential, it must proceed without taking into account this information,
unless this information is available from another source (subsection 48(3)
of the Act).
[14]
The
Tribunal alleges that the applicant’s counsel also holds a position as the
applicant’s director, who is in fact a person to whom disclosure is forbidden.
The applicant does not deny that its counsel is a director.
[15]
The
fact that counsel is a director is only relevant in the case where the
information is contemplated by section 45 of the Act. The affidavit filed
by Ms. Nadeau is silent regarding the process through which the Tribunal
identified the information in exhibit PR-2006-031-34A as confidential. Did the
Department of Transport file a statement as provided under section 46 of
the Act? Did the Tribunal consider this statement? Do sections 45
and 46 apply to the Department of Transport? Neither the Tribunal nor the
Attorney General of Canada addressed these issues in their memoranda. The Court
is therefore not able to decide this issue on account of these deficiencies.
[16]
The
Attorney General has the obligation to justify the non-disclosure of exhibit
PR-2006-031-34A since it is the Minister of Transport who filed this exhibit
and the confidentiality statement. The Tribunal must disclose exhibit PR-2006-031-34A
to the applicant and to any other party after 21 days have elapsed from the
date of the order in the case at bar unless, within that 21-day period, the
Attorney General serves and files a motion for an order prohibiting the disclosure
of the exhibits except in accordance with the terms set out in section 45
of the Act.
[17]
With
regard to the request for disclosure of documents other than the exhibits, this
betrays a misunderstanding of the purpose of section 317. As is so aptly
stated by Mr. Justice Hugessen in Atlantic Prudence Fund Corp. v.
Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1156, section 317 does not serve the same purpose as
documentary discovery in an action:
11 . . .
Rule 317 does not have the same theoretical foundation, nor does it produce the
same results as documentary discovery and does not require a tribunal (by
contrast to a respondent in an action) to engage in an extended and exhaustive
search for material whose relevance may at best be marginal and whose selection
will necessarily involve an exercise of judgment.
[18]
The
applicant did not advance any fact which would lead to a finding of
interference in this matter. The fact that the Tribunal is assisted in its
endeavours by its personnel is entirely normal. As the Supreme Court states in 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:
. . . This is
merely an example of the principle that applies to administrative tribunals,
that they do not have to do all the work themselves but may delegate some of it
to others.
Therefore, the mere fact that the members
of the Tribunal have access to legal counsel or to researchers is not a breach
of procedural fairness. The applicant relies on this Court’s decision in Telus
Communications Inc. v. Canada (Attorney General) (Telus), 2004 FCA
317, [2004] F.C.J. No. 1587, to say that the working document of an
administrative tribunal must be disclosed to the requesting party if the
document could have influenced its decision. In Telus, there were
reasons to believe that a government policy had been implemented before it had
been made public. There was therefore a factual basis for the disclosure
request. In this case, there is nothing of the sort. The applicant did not
advance anything that would suggest that there was interference in the matter.
[19]
Under
the circumstances, the applicant’s argument is limited to the statement that it
wants to be satisfied that the case was decided by the individual who heard it
(see, on this point, the affidavit of Lorraine Turcotte sworn April 23, 2007,
at paragraph 8). In the absence of a factual basis justifying such a concern,
the Court is not disposed to impose an obligation to disclose on the Tribunal
which goes beyond what the parties filed into evidence or in written
submissions.
[20]
In
closing, the Court would like to express its disapproval for document
disclosure requests drafted in terms as vague as the one at issue. Judicial
review does not proceed on the same basis as an action; it is a procedure that
is meant to be summary. There is therefore a series of limits on the parties as
a result of this distinction. Evidence is brought by affidavit and not by oral
testimony. There is less leeway for preliminary procedures such as discovery of
evidence in the hands of the parties and examination on discovery. If such
proceedings do prove to be necessary, the Rules provide that a judicial review
may be transformed into an action.
[21]
It
is in this context that we find section 317 of the Rules dealing with the
request for disclosure of material. The purpose of the rule 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.
[22]
As
for the applicant’s request for an extension of time to file its affidavit and
its memorandum, it can refile its request once the Minister of Transport has
filed his motion, or once the 21 days he was given to do so have elapsed and no
such motion has been filed.
[23]
For
these reasons, except in regard to exhibit PR-2006-031-34A, the motion is
dismissed with costs.
“J.D.
Denis Pelletier”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content