1185740 Ontario Ltd. v. Minister of National Revenue, [1998] 3 CTC 215

Nadon J.:

This is a motion for production of documents purportedly in the possession of the respondent Minister and for an extension of time to file the applicant’s record to four weeks after the receipt of the requested documents.

The documents of which the applicant seeks production were requested in its originating notice of motion filed on March 9, 1998. The documents requested are as follows:

A. the complete record, being copies of all decisions, records of meetings, briefing notes, analysis, correspondence within, to and from the Government of Canada, including within, to and from Ministers, officials, exempt staff and ministerial aides, Members of Parliament and Senators, in connection with the proposed sale of duty free gas at land border crossings by licenced duty free shops (the “Documents”) including all Documents connected with representations made by the University of Windsor, The Canadian Transit Company, The Frontier Association, 1185740 Ontario Limited and Johnstown Duty Free Shop Inc. and other Duty Free Shops, local governments, businesses and politicians and their advocates and counsel for the period from November 1, 1995 to February 24, 1998; and

B. the complete record of the Minister’s past practices in issuing Wholesalers/Jobbers licences under the Excise Tax Act.

The applicant was, at all material times, the holder of a licence to operate a duty free shop at the Ambassador Bridge, Windsor, Ontario. The Minister of National Revenue, in a letter dated February 5, 1998, informed the applicant of his decision to amend the licence by specifying a restriction on the sale of duty and tax free fuel at all land border shops pursuant to section 24 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).

The applicant made its demand for documents on the basis of former Rule 1612, [1] now Rule 317. Rules 317 and 318 are relevant to the determination of the present motion and they read as follows:

317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

(2) An applicant may include a request under subsection (1) in its notice of application.

318. (1) Within 20 days after service of a request under rule 317, the tribunal shall transmit

(a) a certified copy of the requested material to the Registry and to the party making the request; or

(b) where the material cannot be reproduced, the original material to the Registry.

(2) Where a tribunal or party objects to a request under rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.

(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).

(4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.

317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l’office fédéral dont l’ordonnance fait l’objet de la demande lui soient transmis en signifiant à l’office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.

(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.

318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l’office fédéral transmet:

a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;

b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.

(2) Si l’office fédéral ou une partie s’opposent à la demande de transmission, ils informent par écrit toutes les parties et l’administrateur des motifs de leur opposition.

(3) La Cour peut donner aux parties et à l’office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d’une opposition à la demande de transmission.

(4) La Cour peut, après avoir entendu les observations sur l’opposition, ordonner qu’une copie certifiée conforme ou l’original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.

On March 31, 1998 the respondent replied to the applicant’s request for documents by a letter sent to the Registry of this Court with copy to the applicant’s counsel. For the sake of clarity, I reproduce the respondent’s letter:

I write in response to the Applicant’s request pursuant to Rule 1612.

Please find attached a memorandum to Minister Herb Dhaliwal from Deputy Minister Rob Wright dated February 2, 1998 which was before the Minister when he made the decision to amend all land border duty free licenses to prohibit the sale of duty and tax free fuel. That document references a further memorandum between the same parties dated October 20, 1997 which is also attached. You will note that a few sentences have been removed from these memoranda since they reflect legal advice and / or third party information. The Respondent objects to the production of these excerpts on this basis.

The above mentioned memoranda from the Deputy Minister reference the following four documents:

• a proposal from the Canadian Transit Company in June 1996 to sell duty and tax free fuel along with a supporting KPMG study.

• a study by Professor A.A. Kibursi of McMaster University.

• an enhancement of the original KPMG study.

Three of these documents are already before the Court since they were contained in the Applicant’s supporting affidavit (Exhibits “H”, “I” and “L”). The remaining document is attached, namely Professor A.A. Kibursi’s study. I would note for the Court that the Respondent has obtained a consent for the release of this third party information.

The Respondent objects to the production of the residual requested documentation on the following bases:

• this documentation was not before the decision maker

• this documentation is not relevant to the determination of the legal issues before the Court

• some of this documentation is third party information which the Respondent is unable to release

° the request for documentation is extremely broad, tantamount to discovery, and would require the commitment of considerable resources to gather the documents given the scope of the request.

In addition, with respect to the request for, “the complete record of the Minister’s past practices in issuing Wholesalers / Jobbers licenses under the Excise Tax Act,” the Respondent notes that it relates to the Applicant’s request for mandamus, “requiring the Minister of National Revenue to consider in good faith and consistent with past practices any formal application by the Applicant ... for a Wholesalers / Jobbers license.” The Respondent objects to this request on the basis that it is not properly the subject of judicial review under the terms of the Federal Court Act since it relates to a future decision by the Minister and there is no evidence before the Court which suggests that the Minister would not properly apply the law.

I have advised the Applicant of our objections by copy of this letter.

With respect to the last document sought by the applicant, that is the complete record of the Minister’s past practices in issuing Wholesalers I Jobbers licenses under the Excise Tax Act, R.S.C. 1985, c. E-15, the respondent objects to the production of this document on the ground that it is not properly the subject of judicial review since the document relates to a future decision by the Minister “and there is no evidence before the Court which suggests that the Minister would not properly apply the law”. I agree.

With respect to the remaining documents, the respondent objects on the grounds that these documents were not before the Minister when he made the impugned decision and that, in any event, they are not relevant. Rule 317(1) requires that the requested material be relevant to the application and that the material be in the possession of the tribunal whose order is the subject of the application. There is no distinction to be made, in my view, between Rule 317(1) and former Rule 1612(4).

In Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (1993), 164 N.R. 60 (Fed. C.A.), the Federal Court of Appeal held that the test for determining whether a party could be forced to produce documents under former Rule 1612, was whether the documents had been “used” by the Tribunal “in its hearing, deliberations or decision, ...”. At 66 Décary J.A. explained Rules 1612 and 1613 as follows:

The obligation which is imposed on the tribunal by rules 1612 and 1613 is “without delay” to “provide” or “forward” a “certified copy” of “material” which is “in its possession” and which is “specified”. In my view, this presumes that it is material which already exists at the time when the request to obtain the material is made, which the* tribunal used in its hearing, deliberations or decision, which is part of its record and of which it is in a positive [sic] to provide a certified copy. I simply cannot see anything in the words used that obliges the tribunal to busy itself preparing something it does not already have. The fact that the adverse party is not entitled to receive a copy of the material in question, even for the purpose of preparing an objection to it being obtained, also means that it can be presumed that it is aware of the existence and nature of the material in question, which it knows to be in the possession of the tribunal and which it may have in its own possession.

In Eli Lilly & Co. v. Nu-Pharm Inc. (1996), [1997] 1 F.C. 3 (Fed. C.A.), at 28 and 29 the Federal Court of Appeal, commenting on former Rules 1612 and 1613, states that the rules in question were designed to enable a party wanting to rely on documents in the possession of a federal board, and not in its possession, to have access to the documents which were before the board whose decision was under attack. Stone J.A. states:

..Contrary to the appellant’s contention, the required information was not accessible by the respondents pursuant to Rules 1612 [as enacted by SOR/92-43, s. 19] and 1613 [as enacted idem]. Those rules provide a means of enabling a party wishing to rely on material in the possession of a federal board, commission or other tribunal and not in that party’s possession, to have access to that material. This surely has reference to “material” that was before the federal board, commission or other tribunal whose decision is the subject of an application for judicial review pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] and not to the contents of a Minister’s file where no decision of his is the subject of the judicial review. I cannot see how those rules could be made to apply in the circumstances where no decision of the Minister is under review in the within proceedings.

In Sovereign Life Insurance Co. v. Canada (Minister of Finance) (1995), 100 F.T.R. 81 (Fed. T.D.), I had to consider former Rule 1305 which was the equivalent Rule 1612 in the context of statutory appeals. That rule provided that the tribunal whose decision was the subject of the appeal had to send to the Registry of this Court all papers relevant to the matter before it and which were in its possession or control. In reaching a conclusion in that case, I considered a number of Federal Court decisions including the decision of the Federal Court of Appeal in Trans Quebec & Maritimes Pipeline Inc. v. Canada (National Energy Board), [1984] 2 F.C. 432 (Fed. C.A.). At 93 of Sovereign, I concluded:

In addition to being relevant to the issue before the Tribunal, the documents sought must, in my view, have been presented or made available to the Tribunal. On this point, I wish to emphasize that part of the Thurlow, C.J.’s comments, cited hereinabove in Trans Quebec & Maritimes Pipeline Inc. where he states that “The Tribunal will know what it has or has had that is relevant, what use has been made of it and why it is relevant to the decision...”. In Pacific Press Ltd. et al. v. Minister of Employment and Immigration et al. (No. 2) (1990), 127 N.R. 323, the Federal Court of Appeal had to decide whether material should be added to the case in a s. 28 application. At p. 324, Heald, J., stated that:

By this motion, the court is being asked to add material to the case that was not before the adjudicator when he made his decision and couldn’t have been before him because it did not exist at that time. This court has declined to make such an order in such circumstances.

It is therefore my view that, as the “Board” in this case is the Minister, Mr. Dhaliwal, the applicant is entitled only to those documents that were before the Minister when he made his decision. On the evidence before me, those documents were the memoranda of the Deputy Minister and the documents referred to in those memoranda. All of these documents have been provided to the applicant. Thus, the other documents of which the applicant seeks production under point A. do not fall within the purview of Rule 317(1).

With respect to the Deputy Minister’s memoranda of October 20, 1997 and February 2, 1998, the respondent removed excerpts therefrom on the basis of solicitor-client privilege. In support of his argument that I should compel production of the excerpted portions of the memoranda, counsel for the applicant relied on the decision of Richard J. in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System). [1996] 2 F.C. 668 (Fed. T.D.). Specifically, counsel relied on the comments made by the learned Judge at 692, paragraph 49, where he states:

In the result, I have reached the conclusion that the Commissioner’s objection to the production of written material passing between the Commissioner and his counsel which consists of legal advice or analysis is valid. However, if legal counsel has provided written material to the Commissioner containing new facts or information, that is to say, evidentiary material not previously disclosed, on which the Commissioner based his decision to issue the notices, then such written material should properly be produced pursuant to Rule 1613 and included in the record. There is nothing in the record before me indicating that such is the case.

Counsel for the respondent also relied on the same passage of Richard J.’s decision. At 692 Richard J. makes it quite clear that the legal advice given to commissioner Krever by his legal counsel was protected by the solicitor-client privilege. Richard J. made one exception to the rule and that was that if the legal advice contained “new facts or information, that is to say, evidentiary material not previously disclosed, on which the commissioner based its decision to issue the notices,” then the “new facts or information” had to be produced because the “new facts or information” were contained in written materials on which the commissioner based his decision. Having carefully read the memoranda it is my view that the portions excerpted are truly legal advice given to the Department. I therefore conclude that the excerpted portions of the memoranda are protected by the solicitor-client privilege and thus the respondent cannot be compelled to produce them.

For all of these reasons, the applicant’s motion to obtain production pursuant to former Rule 1612 must be dismissed. With respect to the applicant’s request for an extension of time to file its application record, time shall be extended to May 19, 1998. Should this date pose any problem, the parties are at liberty to speak to me.

Motion dismissed.