Date: 20000717
Docket: IMM-2294-96
IMM-2296-96
IMM-2297-96
BETWEEN:
ATLANTIC PRUDENCE FUND CORPORATION
ATLANTIC GROWTH FUND CORPORATION LIMITED
AB CAPITAL CORPORATION
KLC CAPITAL CORPORATION LIMITED
MOUNT ROYAL CAPITAL CORPORATION
PEI GROWTH FUND CORPORATION
ATLANTIC PRUDENCE MANAGEMENT CORPORATION
GRT MANAGEMENT CORPORATION
ABT MANAGEMENT CORPORATION
KLC MANAGEMENT LTD., MTR MANAGEMENT CORPORATION
and PEI GROWTH MANAGEMENT CORPORATION LTD.
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] In the context of their applications for judicial review of certain decisions by the Minister, to suspend their approvals as approved funds under the Immigrant Investor Programme, on grounds inter alia of improper motive and bias, the applicants move in writing pursuant to Rule 369 for two distinct forms of procedural relief:
| a) an order that the respondent be compelled to admit or deny pursuant to Rule 255 a document which they have served together with a Notice to Admit; and, |
| b) a declaration that the respondent is required to produce certain documents pursuant to Rule 317. |
[2] The rules relied upon read as follows:
| Rule 255: A party may, after pleadings have been closed, request that another party admit a fact or the authenticity of a document by serving a request to admit, in Form 255, on that party. |
| Rule 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. |
| Règle 255: Une partie peut, après clôture des actes de procédure, demander à une autre partie de reconnaître la véracité d"un fait ou l"authenticité d"un document en lui signifiant une demande à cet effet selon la formule 255. |
| Règle 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. |
[3] The respondent contests both branches of the motion, the first on the ground that the Court has no jurisdiction to make such an order; the second because it says that the Court must first give directions as to the procedure to be followed pursuant to Rule 318(3) prior to actually determining the question.
[4] I find both points taken by the respondent to be without merit.
[5] Whether or not Rule 255 applies to these proceedings (either directly or, as the applicants argue, by the use of the "gap" rule) is a pure question of interpretation and has nothing to do with the Court's jurisdiction. The issue is not whether the Court can make the order requested but whether it should do so. To make the order might constitute an error of law or a wrong exercise of discretion, but the order itself would still unquestionably be one that the Court has the power to make. It is not helpful to characterize an issue as jurisdictional when it is nothing of the sort.
[6] Similarly, on the second issue, Rule 318(3) is clearly cast in discretionary or facultative terms and the Court is under no obligation to give directions where it is satisfied that all parties have had full opportunity to make submissions. That is the case here: the applicants' motion puts the respondent squarely on notice as to what is being sought, and if the latter chooses not to take advantage of the occasion to make its views known, that is its concern. This is a specially managed case and I can find nothing wrong with the applicants having moved directly to obtain what they want rather than wait for the Court to give directions.
[7] Notwithstanding the unhelpfulness of the respondent's submissions, however, I have concluded that neither branch of the motion should succeed.
[8] Dealing first with the Notice to Admit, it is common ground that by its terms Rule 255, which appears in Part 4, Actions, does not directly apply to Applications which are dealt with separately in Part 5. The applicants urge that the omission was inadvertent but I am not persuaded that such is the case. Applications were designed to be dealt with quickly and efficiently and to be free, as far as possible, of interlocutory encumbrances. Where the procedure by way of application is thought to be inadequate and the case requires more elaborate provisions such as, for example, by way of discoveries, the Court has the power to convert the proceeding into an action. Evidence on applications is by way of affidavit, and a party who attacks an administrative decision has to know and set forth the grounds for attack and the evidentiary foundation thereof, at the time the proceedings are launched. It is not enough to simply hope that admissions can be obtained or, as in the second part of this motion, something useful will turn up in the tribunal's record.
[9] While I do not exclude the possibility that there may come a case where the Court will be persuaded that the ends of justice require that a party to an application be made to admit or deny some document which could not otherwise be put to the opponent's deponent on cross-examination, and that the power to make such an order exists either as an adjunct to the Court's inherent right to control its process, or, in a specially managed case such as this one, under Rule 385, I do not think that this is such a case. Manifestly, the applicants have a copy of the document on which they seek the respondent's admission in their possession. They have apparently obtained it on an Access to Information request so the proof of its provenance should not resent them with any difficulty. That being so, and given the apparent nature of the document, a communication from a Deputy Minister to a senior official in her department, its production as a part of the applicants' record will have the practical effect of casting a burden of disproving or explaining it on the Crown. And even if that were not the case, no reason has been suggested why respondent's deponent could not be cross-examined on it so as to obtain the necessary admission.
[10] As regards the Rule 317 Notice to Admit, it is clear in my view that it is ineffective for its intended purpose because of its lack of proper specificity. A simple reading of the text of the applicants' "Request for material" suffices:
| THE APPLICANTS HEREBY REQUEST material in the possession of the Respondent that is relevant to the issues in the Notice of Application (as broadened by the order of the Hon. Justice Dawson dated March 31, 2000). |
| Without limiting the generality of the foregoing, such relevant material should include all material similar to, relating to or bearing upon the evidence and subject-matters: [There follows a reference to an affidavit and exhibits thereto produced by applicants on an earlier motion herein and to an order rendered as a consequence thereof.] |
[11] Once again, it is manifest that the applicants have in their possession copies of the documents referred to in their Request for Material and that they have obtained them as a result of Access to Information proceedings. Rule 317 is not intended as a substitute for those proceedings nor yet as a handy means of doing an end run around the protections that that statute puts in place for both public and private interests. If the applicants think that the documents mentioned in their Notice are relevant to their case, they can produce them. If they believe that there are other documents "similar to, relating to or bearing upon" such documents, they can seek them in the same way. While the Crown is no doubt a "tribunal" for the purposes of the Rules, it is not an adjudicative body within the traditional understanding of that term having a discrete and identifiable "record"; it is also in a very real sense the respondent and opposed in interest to the applicants. 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 defendant 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. Once again, the applicants must know the facts upon which they propose to argue that the impugned decisions should be set aside, and it is not enough merely to hope that there will be something "relevant" in the entire archive of the Government of Canada.
[12] Unless the applicants can do a better job of defining what it is that they want, they will have to be satisfied with what they have got.
[13] The respondent has not asked for costs; I would not in any event have awarded them in light of the entirely unhelpful nature of its submissions
ORDER
The motion is dismissed without costs.
"James K. Hugessen"
Judge
Toronto, Ontario
July 17, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2294-96 |
IMM-2296-96
IMM-2297-96
| STYLE OF CAUSE: ATLANTIC PRUDENCE FUND CORPORATION |
| ATLANTIC GROWTH FUND CORPORATION LIMITED AB CAPITAL CORPORATION KLC CAPITAL CORPORATION LIMITED MOUNT ROYAL CAPITAL CORPORATION PEI GROWTH FUND CORPORATION ATLANTIC PRUDENCE MANAGEMENT CORPORATION GRT MANAGEMENT CORPORATION ABT MANAGEMENT CORPORATION KLC MANAGEMENT LTD., MTR MANAGEMENT CORPORATION and PEI GROWTH MANAGEMENT CORPORATION LTD. |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
| AND ORDER BY: HUGESSEN J. |
DATED: MONDAY, JULY 17, 2000
| WRITTEN SUBMISSIONS BY: Mr. Edward L. Greenspan, and |
Mr. David Stratas, and
Mr. Peter Brady
| For the Applicants |
Mr. Geoffrey S. Lester
| For the Respondent |
| SOLICITORS OF RECORD: Greenspan, Henein & White |
Barristers & Solicitors
144 King St. E.
Toronto, Ontario
M5C 1G8
| For the Applicants |
Hicks Morley Hamilton Stewart Storie LLP
Barristers & Solicitors
30 th Floor
Toronto Dominion Tower
PO Box 371
Toronto, Ontario
M5K 1K8
For the Applicants
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000717
Docket: IMM-2294-96
IMM-2296-96
IMM-2297-96
BETWEEN:
| ATLANTIC PRUDENCE FUND CORPORATION |
| ATLANTIC GROWTH FUND CORPORATION LIMITED AB CAPITAL CORPORATION KLC CAPITAL CORPORATION LIMITED MOUNT ROYAL CAPITAL CORPORATION PEI GROWTH FUND CORPORATION ATLANTIC PRUDENCE MANAGEMENT CORPORATION GRT MANAGEMENT CORPORATION ABT MANAGEMENT CORPORATION KLC MANAGEMENT LTD., MTR MANAGEMENT CORPORATION and PEI GROWTH MANAGEMENT CORPORATION LTD. |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER