Date:
20070727
Docket:
T-895-07
Citation:
2007 FC 781
[ENGLISH
TRANSLATION]
BETWEEN:
ASSOCIATION DES
CRABIERS ACADIENS INC.,
JEAN-GILLES CHIASSON, in his
personal capacity and in his capacity as
president of the Association des
crabiers acadiens inc.,
ASSOCIATION DES CRABIERS
GASPÉSIENS INC.,
MARC COUTURE, in his personal
capacity and in his capacity as
administrator of the Association
des crabiers gaspésiens inc.,
ASSOCIATION DES CRABIERS DE LA
BAIE,
DANIEL DESBOIS, in his personal
capacity and in his capacity as
administrator of the Association
des crabiers de la Baie,
and ROBERT F. HACHÉ
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
ORDER
PROTHONOTARY MORNEAU
[1]
This
is a motion by the applicants under Rule 318 of the Federal Courts Rules (the
Rules) for the Court to order the respondent, the Attorney General of Canada,
to send them all the documents required in their notice of application for
judicial review.
Context
[2]
The
applicants consist mainly of three associations of traditional snow crab
fishermen.
[3]
On May
24, 2007, they initiated an application for judicial review (the Application),
in which the decision referred to is identified at the outset by the applicants
as follows:
[translation]
APPLICATION
A) THE
DECISION REFERRED TO
This
application for judicial review concerns the adoption, by the Minister of
Fisheries and Oceans (the “Minister”), of a fisheries management plan
for snow crab in the Southern Gulf (the “Plan”),
which was publicly announced on or around April 25, 2007. (…)
[4]
This
text indicates that the decision referred to is the adoption of the Plan.
[5]
Since
we have reached the step, in terms of drafting, of addressing its purpose (see
page 6 of the Application), the applicants appear to specify the particular
aspects of the Plan that they are attacking through the Application and, on the
other hand, they appear to widen the scope of the Application to include the
various decisions related to implementing these aspects of the Plan.
[6]
Essentially,
the applicants express the following in the Application:
[translation]
That
this honorable Court allow the application for judicial review and cancel and
invalidate the abovementioned aspects of the Plan and/or all decisions made
pursuant to said aspects of the Plan, (…)
[7]
To
put this into context, the aspects of the Plan to which the applicants refer mainly
concern closing fishing areas and fisheries licensing that reflect a maximum
number of catches allocated among traditional fishermen and First Nation
fishermen and non-traditional fleets.
[8]
Finally,
the applicants contest that the respondent can claim the solicitor-lawyer privilege
to oppose disclosing a sentence in one of the documents sent to the applicants under
Rule 318.
Analysis
[9]
For
the purposes of this motion, I intend to keep in mind, as required by Rule 302
and the jurisprudence that applies under normal circumstances, that the Application
is limited and is in fact, as worded, limited to a single decision, in this
case the Minister’s adoption of the Plan.
[10]
Consequently,
I do not intend to keep in mind that the Application also encompasses a series
of decisions made as a result of the Plan’s adoption and that the applicants
describe the motion under review as follows:
[translation]
all
the decisions, orders, leases, permits and/or licences granted, renewed and/or
amended, partially or completely, as a result of the adoption of the Plan
and/or according to the parameters established in the Plan.
[11]
Furthermore,
with respect to the decision referred to, namely the adoption of the Plan, I
consider that the applicants can only request the documents that were before
the Minister when the Plan was adopted.
[12]
That
is, from my point of view, the measure to be applied through prevailing case
law. The applicants were in fact reminded of this stream of jurisprudence
during a past challenge that they filed concerning a snow crab fishing plan and
where the applicants sought to have access to all the relevant documents
(meaning an action) and not only to the documents before the decision-maker when
the decision was made.
[13]
In
Association des crabiers acadiens et al v. Her Majesty the Queen,
2004 FC 23, my colleague Tabib said the following at paragraphs [23] et
[24]:
[23] I
adopt the reasons stated by Associate Prothonotary Giles in Ecology Action Centre
Society v. Canada (Attorney General), [2001] F.C.J. No. 1588, adopting the
rules set out by the Court of Appeal in Canada v. Pathak, [1995] 2 F.C.
455:
[6] . . . What is relevant is what was before
the decision maker when he was reaching his decision . . . it does not
include everything dealing with the subject which may have crossed his desk at
a prior time. It certainly does not include everything in his department or
area of responsibility.
[24] In
David C. Bevan’s statement the respondent disclosed documents [translation] “which were in the
possession of the Minister of Fisheries and Oceans when he took the decision
which is at issue [in this application]”. In the present state of the record
the applicants have not established to the Court’s satisfaction that the
other documents requested, even if they were otherwise in the possession of
the Minister or his Department and might have been relevant to the decision, are
in fact documents relevant for the purposes of Rule 317, in that they were
taken into account by the Minister in reaching his decision.
(Emphasis
added)
[14]
Thus,
we can certainly not consider here that the position taken by my colleague is
tantamount to acknowledging that all the documents consulted by the Minister at
any point during the process of setting out or designing the Plan must be sent
under Rules 317 and 318.
[15]
If
the documents sent by the Minister to date under Rule 318 did not allow the
Minister, according to the applicants, to adopt some aspects of the Plan, they
will be able to validate these points when they explain their position on the
merits. However, I do not think that this position of the applicants forces the
Minister to send everything that could have been brought to his attention when
the Plan was set out in a way that would allow the applicants to support their
main claim that there are parameters in the Plan that are not mentioned in the sent
documents.
[16]
Here
in the Application, the applicants are requesting they be sent:
[translation]
1. All the documents,
memos, memorandums, electronic messages, briefings, reviews (scientific or
other), notices, news releases, and factsheets that pertain to the design, development,
and/or adoption of the Plan and the Variation Order, in addition to all the
correspondence from and/or addressed to the Minister, the deputy minister, the
assistant deputy minister – fisheries management, and to the directors general
and the public servants in the Gulf and Quebec regions and/or the National Headquarters
concerning these items.
[17]
I
agree with the respondent in that this request for documents to be sent is
similar in nature to a data and document search that we find at the interlocutory
stage of an action rather than during a application for judicial review.
[18]
Quite
recently, namely on June 8, 2007, the Federal Court of Appeal in Access
Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224,
stated that it disagreed with requests for documents under Rules 317 and 318,
which stand out clearly from this process in the actions. At paragraphs [20]
and [21], the Court of Appeal states the following:
[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.
(Emphasis
added)
[19]
Here,
Mr. David Bevan’s statement or certificate dated June 18, 2007, indicates
that the applicants were sent all the documents that were before the Minister
when the Plan was adopted.
[20]
The
applicants’ application to have the sought documents sent will therefore be
dismissed.
[21]
Furthermore,
since I reviewed the sentence in a document that the respondent considers to be
a legal opinion, I am satisfied that this is not actually the case and,
consequently, this sentence will have to be disclosed to the applicants within
the next ten (10) days.
[22]
For
all these reasons, excluding what is indicated in the previous paragraph, this motion
by the applicants will be otherwise dismissed, with costs in the cause.
“Richard Morneau”
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