Vancouver, British Columbia, June 20, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
WESTERN CANADAWILDERNESS COMMITTEE,
DAVID SUZUKI FOUNDATION, FORESTETHICS,
and ENVIRONMENTAL DEFENCE CANADA
Applicants
and
Respondent
REASONS FOR ORDER AND ORDER
[1] On December 5, 2005, the Applicants applied for judicial review in respect of the failure of the Minister of the Environment (the Minister) to exercise his statutory duty to recommend that the Governor-in-Council make an Emergency Order to provide for the protection of the Northern Spotted Owl, a listed endangered wildlife species pursuant to the Species at Risk Act, S.C. 2002, c.29 (the Act).
[2] The Applicants subsequently made a request pursuant to Rule 317 of the Federal Courts Rules for production of the following documents:
i. The record of materials before the Minister and the Department of the Environment to the date of this Application concerning the Minister's duty under section 80 of the Species at Risk Act regarding the Spotted Owl;
ii. Such further and other material that may be in the possession, power or control of the Minister or the Department of the Environment and which may be relevant to these proceedings.
[3] The Respondent objected to the Applicants' request for documents on the grounds that Rule 317, which provides a means for parties to obtain material in the possession of the decision-maker, does not apply because there is no actual decision or order which is the subject of the proceeding.
[4] The issue on this motion is whether the Minister's objection to production of documents under Rule 317 should be sustained. The specific questions to be addressed are whether Rule 317 is applicable where no actual order or decision has been made and, if so, what extent of production is required in this case and on what terms.
[5] The Applicants say that, at the time of issuance of the Notice of Application, over 18 months had passed since the Minister wrote to the Premier of British Columbia to advise that he planned to finalize an opinion by May 22, 2004 on whether to recommend issuance of an Emergency Order pursuant to section 80 of the Act. The Minister concluded his letter by stating that he looked forward to hearing from the Premier before May 22 regarding the BC government's plans to address Northern Spotted Owl protection and recovery needs, as well as its plans for announcing measures it would be taking. The Applicants indicate that they are not aware of any concrete measures having been proposed by the BC government, or of any other impediments to the Minister making a recommendation to issue an Emergency Order.
[6] The Applicants submit that they are entitled to production of the requested documents on the basis that they are relevant to the issue of unreasonable delay, one of the grounds of review in the application. They argue that it would be unjust to allow the Minister to avoid review of his conduct by the fact of the complete record before him not being before the Court. They also say that there is no practical means of obtaining the documents other than through an order pursuant to Rule 317.
[7] Although some of the documents requested by the Applicants may ultimately prove relevant in this proceeding, I am not satisfied that they are compellable at this stage pursuant to Rule 317.
[8] It is settled law that Rule 317 is only intended to result in production of materials that were available to the decision-maker at the time of rendering a decision: Canada(Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (F.C.A.). While the courts have acknowledged exceptions to this fundamental rule, the exceptions are fairly narrow, such as where it is alleged that the decision-maker breached procedural fairness, or where there is an allegation of a reasonable apprehension of bias on the part of the decision-maker: Deh Cho First Nations v. Canada (Minister of Environment), (2005) 13 C.E.L.R. (3d) 27 (F.C.), 2005 FC 374.
[9] The Applicants rely on the decision of Justice Edmond P. Blanchard in Vlymen v. Canada(Solicitor General), [2001] F.C.J. No. 288 (F.C.T.D.) (QL) as authority for a more liberal interpretation of Rule 317. However, Vlymen is of little assistance since the objection by the Respondent to production of documents in that case was based on privilege, privacy interests, and lack of materiality. In addition, the tribunal had rendered a decision at the time the request was made, which is distinguishable from the facts in the present proceeding.
[10] The burden is on a moving party to justify the demand for documents that were not in front of the decision-maker. Moreover, special circumstances must be established to compel a decision-maker, who has not rendered a decision, to produce documents that may or may not be considered in ultimately reaching a decision.
[11] The mere fact that the application is based on delay is not sufficient to justify departure from the general rule. To the contrary, there are valid policy reasons to reject the Applicants' contention that an exception should be made for applications based solely on the passage of time. Unlike actual decisions, "non-decisions" based on delay do not involve an easily identifiable and concise record. There is therefore much greater potential for expansive disclosure requests. Expanding the application of Rule 317 to non-decisions would encourage putative applicants to seek document disclosure from anyone who may have been involved in the decision-making process during the period of delay.
[12] The exception would then become the norm. Government respondents would routinely be asked to produce potentially thousands of documents, going back years and covering numerous individuals who may have somehow been involved during the relevant time period in order to produce all documents relevant to the "nature of the duty", or the entire history of involvement with the applicant, thereby slowing down the judicial review process and subverting its summary nature.
[13] Moreover, allowing document disclosure for non-decisions could promote frivolous applications based on minimal delay for the purpose of obtaining government records. For example, a person could conceivably bring an application for mandamus based on a government official's "non-decision" after a short one-day delay in the exercise of his or her statutory authority, demanding documents under Rule 317. There is further potential for mischief where an applicant claims an on-going statutory duty, as he or she could initially refrain from bringing a judicial review from the first refusal and instead, choose to wait for delay in the making of subsequent decisions in the hope for more extensive document disclosure.
[14] Finally, exhaustive searches are not necessary to secure justice when an applicant is applying for mandamus based on delay. The onus is on the applicant to bring to the Court the evidence necessary to establish its case, and the applicant cannot use Rule 317 as a fishing expedition to unearth further grounds for review. As noted by Justice Judith A. Snider in Gaudes v. Canada (Attorney General) (2005), 137 A.C.W.S. (3d) 1082 (F.C.), 2005 FC 351 where no decision has been rendered, the content of any requested material can only be the subject of speculation.
[15] The Applicants in the present case should be intimately familiar with the subject matter, including why they believe the delay is unreasonable. In fact, the Applicants acknowledge in their written representations that they can demonstrate a prima facie case of unreasonable delay on the part of the Minister based on the facts already known to them. The onus would then be on the Minister to provide a satisfactory justification for the alleged delay. If the Minister does not do so, she may face a judgment based on evidence brought exclusively by the Applicants. Either way, the Court will have the information necessary to determine the issues before it.
[16] All of the above accentuates the need to distinguish between the right to mandamus and the right to document disclosure under Rule 317. Equating the two would render meaningless the language used in Rule 317. It would result in a document production burden that would be unduly onerous, disproportionate to the alleged wrong, and contrary to the summary nature of applications for judicial review.
[17] In the event I amwrong with respect to the non-applicability of Rule 317 in mandamus applications where no decision has been rendered, I would nonetheless decline to grant the relief requested based on paragraphs 50 to 52 of the Respondent's written representations. I conclude that the Applicants' request for documents is simply too broad, encompassing a substantial volume of documents that are irrelevant, immaterial or privileged.
[18] It is well-established that production under Rule 317 is not intended to be as broad and encompassing as documentary discovery in an action. The Applicants' are essentially requesting production of the Minister's entire file without any temporal or relevance constraints.
[19] For the above reasons, I would dismiss the motion, with costs in favour of the Respondent.
ORDER
THIS COURT ORDERS that the motion is dismissed with costs payable to the Respondent.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2150-05
STYLE OF CAUSE: Western Canada Wilderness Committee et al. v. Minister of the Environment
PLACE OF HEARING: (Motion dealt with in writing without the appearance of parties)
REASONS FOR ORDER LAFRENIÈRE P.
AND ORDER:
APPEARANCES:
| Mr. Devon Page
|
|
| Mr. Lorne Lachance
|
SOLICITORS OF RECORD:
| Sierra Legal Defence Fund Vancouver, British Columbia
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
|