Federal Court Decisions

Date: 19990319

Docket: T-2174-98

BETWEEN:

                         CANADA POST CORPORATION

Applicant

                                                - and -

            PUBLIC SERVICE ALLIANCE OF CANADA and

        THE CANADIAN HUMAN RIGHTS COMMISSION        

Respondents.

                                REASONS FOR ORDER

GIBSON J.:

[1] By application filed the 20^th of November, 1998, the applicant seeks judicial review of a decision of a panel of the Canadian Human Rights Tribunal (the "Tribunal") dated the 21^st of October, 1998 wherein, in the words of the application:

...the Tribunal ruled that the applicant had waived certain rights guaranteed in the Constitution Act, 1967, and in the Canadian Bill of Rights. It also ruled that the question of whether the applicant could be afforded a fair hearing in accordance with fundamental justice before an unbiased and institutionally independent Tribunal by the Tribunal, which is bound by Guidelines issued by a party in interest before it, would not be resolved until the Tribunal had completed its hearing.

[2] In its Application, the applicant requested the Canadian Human Rights Tribunal to send a certified copy of the following materials, not in the applicant's possession, to the applicant and to the Registry of this Court:

1)            all letters, memoranda, notes or other documents in the Tribunal's possession, other than the members' personal notes and documents in evidence before the Tribunal, touching on the remuneration of the Tribunal's members at all times during which the present Tribunal Panel has sat;

2)            all letters, memoranda, notes or other documents in the Tribunal's possession, other than the members's [sic] personal notes and documents in evidence before the Tribunal, touching on the Tribunal's administrative arrangements and on its institutional relationship with the Canadian Human Rights Commission at all times during which the present Tribunal Panel has sat;

3)            all letters, memoranda, notes or other documents in the Tribunal's possession, other than the members' personal notes and documents in evidence before the Tribunal, touching on the issuance, revocation or binding nature of any guidelines issued by the Canadian Human Rights Commission under the Canadian Human Rights Act including any representations made by the Tribunal or any person on behalf of the Tribunal concerning such Guidelines.

[3] In sum, the applicant sought potentially substantial materials in support of its judicial review application, that were not before the Tribunal.

[4] Both the respondents objected to the request for materials. In the result, following a teleconference, my colleague Mr. Justice Lutfy established a schedule for filing written submissions regarding the request for materials and the objections thereto and provided an opportunity for the parties to agree that the objections be disposed of without oral representations.

[5] Written representations were filed in accordance with the direction of Mr. Justice Lutfy. All parties agreed that the objections should be disposed of without oral representations.

[6]         Following the filing of written submissions, counsel for the Public Service Alliance of Canada drew the Court's attention to a decision of my colleague Mr. Justice Denault in Government of the Northwest Territories v. Public Service Alliance of Canada and the Canadian Human Rights Commission^[1] which, in counsel's submission, "... disposes of the question at issue in this matter." Counsel for the Canadian Human Rights Commission adopted the same position.      

[7]         A teleconference with counsel ensued in which the Court agreed to provide counsel for the applicant with an opportunity to make submissions with regard to the decision of Mr. Justice Denault. Those submissions have now been received.

[8]         The decision of Mr. Justice Denault is quite short. After citing the documentation that the Tribunal was asked to produce in that matter, which was essentially similar to that requested herein, Mr. Justice Denault wrote:

[2]           The respondent's [sic] object to the production of such documents mainly on the grounds that, if relevant and not privileged, they could have been requested and produced into evidence before the Tribunal, and that they did not form part of the record before the Tribunal.

[3]           The main issue that was raised by the applicant before the Tribunal was the institutional independence or impartiality of this Canadian Human Rights Tribunal that had been appointed to inquire into a complaint filed by the Public Service Alliance of Canada in 1989.

[4]           After three days of hearing before the Tribunal during which the applicant was provided with the opportunity to call the Registry [sic]of the Tribunal as a witness, the Tribunal ruled that it was an institutionally independent and impartial Tribunal.

[5]           While it is clear that the applicant was well aware of the nature of the evidence required to meet its burden before the Tribunal, and that it had every opportunity to gather and present such evidence, the applicant failed or neglected to produce in evidence the documents now requested.

[6]           It is trite law that fresh or new evidence that was not before the original decision-maker is not permitted in judicial review proceedings, and Rule 317 is not intended to permit a party to repair its failure to present all of the relevant evidence that might or should have been produced before the decision-maker.

[7]           In the instance, the Court has not been persuaded that the requested documents are relevant to the grounds for judicial review specified in the Application. In fact, the Court is not even persuaded that the requested documents exist. In my view, that request by the applicant, in its application, amount to a fishing expedition. That, the Court cannot authorize.

[8]           Accordingly, the objections pursuant to Rule 318(2) of the Federal Court Rules, 1998, by the Respondents to the delivery to the Court and to the applicant of the documents requested by the applicant in its application for judicial review are sustained. No costs.

[9]         In its written submissions, the applicant takes the position that Mr. Justice Denault's decision does not dispose of the issues raised by the objections of the respondents herein and, to the contrary, suggests that Mr. Justice Denault's decision:

...should be distinguished because it fails entirely to deal with fundamental arguments relating to the intrinsic nature of a request for production of documents pursuant to Rule 317 and the exceptional circumstances of the present case;^[2]

[10]       In Canada (Human Rights Commission) v. Pathak^[3], Mr. Justice MacGuigan, with whom one of his colleagues on the three-member agreed, wrote at page 464:

Only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report.

It has not been disputed before me that the requested material was not before the Tribunal. To paraphrase Justice MacGuigan, it was not called for by the Tribunal. This, despite the fact that the applicant could have sought to have the material "called for" and introduced from the Tribunal records and put before an officer of the Tribunal so that it would have been "before the Tribunal in its decision-making phase." Justice MacGuigan in the foregoing quotation, speaks of the Commission not electing to call for some document. That the materials here did not come before the Tribunal by reason of the failure of the applicant to call for them does not, in my view, make the foregoing quotation from Pathak distinguishable.

[11]       In Lindo v. Royal Bank of Canada)^[4], cited to me by counsel for the applicant, I wrote:

The addition of the constitutional grounds to this application for judicial review do not, I am satisfied, make any additional materials, not before the Commission, relevant to the judicial review.

Here, the materials requested might well be relevant to the grounds cited for this judicial review. That being said, I am satisfied that the grounds for this application for judicial review, fundamental as they may be, do not of themselves, make additional materials not before the Tribunal, appropriate subject-matter of a request under Rule 317, particularly where, as here, an opportunity existed to ensure that those materials were before the Tribunal, and the applicant simply failed to avail itself of that opportunity. The time to secure inclusion of those materials in the Tribunal Record on this application for judicial review has now gone by.

[12]       I find no basis on which to distinguish the decision earlier referred to of my colleague Mr. Justice Denault. In the result, the objections of the respondents to the inclusion of the requested materials in the Tribunal Record will be sustained.

[13]       The Tribunal took no position on the request for materials and expressed itself as ready to promptly comply with any order or direction that might issue. It is assumed that these reasons and my related Order will constitute sufficient direction to allow this matter to proceed.

___________________________

       Judge

Ottawa, Ontario

March 19, 1999   

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                         T-2174-98

STYLE OF CAUSE:                       CANADA POST CORPORATION AND

PUBLIC SERVICE ALLIANCE OF CANADA and THE CANADIAN HUMAN RIGHTS COMMISSION

PLACE OF HEARING:                    OTTAWA

DATE OF HEARING:                      MARCH 5, 1999

REASONS FOR ORDER OF MR. JUSTICE GIBSON DATED: MARCH 19, 1999

APPEARANCES

Mr. Thomas Brady and

Mr. Roy Heeman Mr. James Cameron Mr. William Pentney Mr. Gregory Miller

for Applicant

for Respondent, PSAC

for Respondent, Canadian Human Right Commission for Respondent, Canadian Human Rights Tribunal

SOLICITORS OF RECORD:

Heenan, Blaikie Montréal, Québec

Raven, Allen, Cameron & Ballantyne Ottawa, Ontario

Canadian Human Right Commission Ottawa, Ontario

Canadian Human Rights Tribunal Ottawa, Ontario

for Applicant

for Respondent, PSAC

for Respondent, Canadian Human Right Commission

for Respondent, Canadian Human Rights Tribunal