Words and Phrases - "with such modifications as are necessary"

Athletes 4 Athletes Foundation (the “Foundation”) appealed from the refusal of the Minister to register the Foundation as a Canadian amateur athletic association (“CAAA”). The grounds set out in the notice of appeal included the Minister’s failure to exercise her discretion reasonably by, among other things, considering “irrelevant information in comparing the [Foundation] to other applicants and existing registered CAAAs.” The issues included whether the Court should make an order under rule 318(4) for further disclosure.

Laskin JA rejected the Foundation’s submission that Rule 350, which makes Rules 317 and 318 (respecting “material relevant to an application that is in the possession of [the subject] tribunal”) applicable to appeals “with such modifications as are necessary,” required those Rules to be interpreted more broadly in the context of appeals than in the context of applications for judicial review, stating (at para. 21):

On their plain and ordinary meaning, the words “with such modifications as are necessary” do not call for a different substantive application of rules 317 and 318 in appeals.

Thus, Rule 317, as modified by Rule 350, merely required CRA to produce the documents which were in the hands of the decision-maker when the decision was made – and not to provide other requested documents (e.g., the constating documents of all registered CAAAs at the time of the decision).

However, the affidavit of the CRA decision maker stated that “all relevant materials upon which the CRA relied … have been produced” (para. 27).

Laskin JA stated (at paras. 28-29):

The affidavit evidence does not foreclose the possibility that the Minister used irrelevant material relating to the other entities. At a minimum, it does not foreclose the possibility that irrelevant material of this kind was before the Minister when the decision was made. …

[G]iven the grounds of appeal and the purpose of rules 317 and 318, the Minister should be required to produce any material apart from that already disclosed that was before her when the decision was made, with the exception of properly redacted information. I will make an order accordingly.