Date: 20061215
Docket: T-612-06
Citation: 2006
FC 1505
Ottawa, Ontario, December 15, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
RENOVA HOLDINGS LTD., JOHN
JACKSON, and DAVE BOUCHARD each on their own behalf and on behalf of all
persons who have been producers or are producers and do reside or have resided
in the designated area between July 5, 1935 and the present day
Applicants
and
THE CANADIAN WHEAT BOARD and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
The applicants have brought a motion for an
Order under Rule 318(4) of the Federal Courts Rules compelling the
respondents to produce the materials and documents requested by the applicants
in their notice of application.
[2]
This application for judicial review arises as a
result of the Reasons for Order and Order of Mr. Justice Edmond Blanchard dated
January 25, 2006 in Renova Holdings Ltd. v. Canada
(Canadian Wheat Board), 2006 FC 71. In that
Order, Justice Blanchard stayed the action commenced by the plaintiffs on
February 8, 2002. That action was against the defendants for the allegedly
improper use by the Canadian Wheat Board (the Board) of monies in pooled
accounts earned from the sale of grain produced by the plaintiffs. Justice
Blanchard stayed the action because the plaintiffs must first challenge the
legality of the Board’s actions by way of an application for judicial review
following the Federal Court of Appeal’s judgment in Grenier v. Canada, 2005 FCA 348, [2006] 2 F.CR. 287,
262 D.L.R. (4th) 337, 344 N.R. 102.
[3]
Accordingly, this application for judicial
review is directly a result of Justice Blanchard’s Order that the plaintiffs
commence an action for judicial review challenging the legality of the Board’s practice
and staying the action for damages pending the final outcome of the application
for judicial review.
Background
[4]
On March 28, 2006, the applicants filed a notice
of application for judicial review. The appellants allege that the Board failed
to maintain separate accounts as directed by sections 7 and 33 of the Canadian
Wheat Board Act, R.S.C. 1985, c. C-24, and
wrongfully deducted expenses from a separate account in violation of its
statutory mandate.
[5]
The backgrounds of the parties was
summarized by Mr. Justice Edmond Blanchard at paragraphs 3 and 4 of his reasons
for order in Renova, above:
The Plaintiffs
are a corporation and individuals who qualify as "producers" under
section 2 of the Canadian Wheat Board Act, R.S.C. 1985, c. C-24 (the Act) in
the "designated area", as defined by the Act. For our purposes the
designated area is defined to comprise Manitoba, Saskatchewan, Alberta, and the Peace River District of British Columbia.
The defendant
Wheat Board is a corporation created under the Act and is responsible for
marketing wheat and barley, including wheat and barley produced in the
designated area. The Attorney General of Canada is named as representing the
defendant Crown (Her Majesty in right of Canada), pursuant to the Crown Liability and Proceedings Act, R.S. 1985
c. C-50, section 23.
[6]
The applicants, as stated in their notice of
application, seek production under Rule 317 of the following documents:
[The
Board’s] annual financial statements and summaries setting out the expenses it
charged to the section 36 separate accounts, for losses under section 7(3) and
expenses other than those allowed expenses under section 33(1)(a) of The
Canadian Wheat Board Act, and such other further relevant documents
relating to the issue in question on the application as is available. [the
“requested documents”.]
[7]
The Board originally objected to the production
of the requested documents on several grounds. However, during the hearing of
the motion, and after the Court indicated its preliminary views, the parties
agreed that the applicants have not established that they have standing or the
right to seek judicial review in respect of each year dating back to 1935; that
an application for judicial review can apply to a “course of conduct”; and that
this application for judicial review was not brought out of time because it was
directed by Justice Blanchard when he stayed the original action in this case
to allow for this application for judicial review.
[8]
In the course of argument, the parties agreed
that the 2002 financial year would likely be representative of the Board’s
impugned practice and that the document production should be limited to the
2002 annual financial statements and summaries setting out the expenses charged
to the separate accounts maintained under the Canadian Wheat Board Act.
Relevant Rules
[9]
Rule 317(1) of the Federal Courts Rules
provides a means for parties to obtain material in the possession of the
tribunal:
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Material from tribunal
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.
|
Avis à l’office
fédéral
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.
|
Rule 318 requires a tribunal served with a
request for material under rule 317 to forward the material to the Registry and
the requesting party within 20 days. Rule 318(4) authorizes the Court to order
that all or part of the material requested by forwarded to the Registry:
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Material to be
transmitted
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.
Objection by tribunal
(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.
Directions as to procedure
(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).
Order
(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.
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Documents à
transmettre
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.
Opposition de
l’office fédéral
(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.
Directives de la
Cour
(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.
Ordonnance
(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.
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Issue
[10]
The issue raised in this motion is whether the applicant
is entitled to an order that all or part of the material requested be forwarded
to the Registry.
Analysis
[11]
A review of the procedural history of these
proceedings indicates that the applicants originally commenced an action with a
statement of claim alleging breach of fiduciary duty, negligence,
administrative misfeasance in public office and abuse of public office.
[12]
The theory of the applicants’ case was that the
Board unlawfully used funds taken from its pooled accounts held for the benefit
of producers within the designated area. These funds were used to cover
expenses incurred in the course of issuing export licences, interprovincial
transport licences, and licences to process grains to individuals and
corporations from regions outside and inside the designated area. The
applicants argue that, under the Canadian Wheat Board Act, only expenses
incurred in the course of selling products from the designated area may be
deducted from the aggregate funds received from the sale of products from the
designated area. The applicants seek to hold the Board accountable to the
producers for the funds which were, in their view, wrongfully deducted from the
pooled accounts.
[13]
The applicants’ application for judicial review
does not identify a specific decision of the Board in respect of which review
is sought. Rather, the application states that it is:
[…]
in respect of The Canadian Wheat Board’s failure to maintain the separate
accounts directed by section 36 of The Canadian Wheat Board Act, and,
pursuant to section 7 and section 33 of the Act, wrongfully deducting expenses
from the separate account not permitted by the statute contrary to its
statutory mandate.
[14]
The applicants seek as relief a declaration
under paragraph 18.1(3)(b) of the Federal Courts Act that the actions of
the respondents are invalid or unlawful.
[15]
It follows from the notice of application that
the applicants are challenging the Board’s activities related to the deduction
of expenses from the pooled accounts, rather than challenging a discrete order
or decision of the Board. The appropriate scope of tribunal record is therefore
linked, in my view, to the Board’s account management during the period which
the applicants were directly affected by such activities. This is because
subsection 18.1(1) of the Federal Courts Act requires that an
application for judicial review be made by the Attorney General of Canada or
“by anyone directly affected by the matter in respect of which relief is
sought”. If, for example, none of the applicants were directly affected by the
Board’s account management in 1935 because none of them held an interest in the
Board’s pooled accounts at that time, then the Board’s financial records from
1935 would clearly not form part of the tribunal record under Rule 317. Such
material would be unnecessary and extraneous to the relief sought and the
grounds cited by the applicants, and could not affect the decision of the
Court. The courts have consistently held that such material cannot become the
subject of a fishing expedition as part of an application for judicial review. In
Bradley-Sharpe v. Royal Bank
of Canada, 2001 FCT 1130, Mr. Justice Blais denied a
motion for production under Rule 317 on the grounds that the applicant’s
request for documents was too broad and amounted to a discovery or fishing
expedition; see also Canada (Human Rights Commission) v. Pathak,
[1995] 2 F.C. 455 (F.C.A.); Sierra Club of Canada v. Canada (Minister of Finance) (1997), 131 F.T.R. 298
(F.C.T.D.); Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (1993), 17
Admin L.R. (2d) 16, 164 N.R. 60 (F.C.A.).
[16]
At the same time, as Justice Blais recognized at
paragraph 16 of Bradley-Sharpe, above, the applicant must be provided
with the material necessary to prove the grounds of judicial review alleged in
the notice of application. Without these materials, the applicants in this case
would be unable to fully argue the merits of their application. Mr. Justice
Blais invited the applicant in Bradley-Sharpe to bring a further motion
with a more specific and focussed list of documents. In this case, as counsel
for the applicants acknowledged during the hearing, it should be possible to
argue the merits of the application based on material related to a single
financial year in which the respondent applied the impugned deductions. Counsel
for the applicant also agreed that, if there was a single year that would
likely be representative of the respondent’s impugned practice, it would be the
2002 financial year in which the Board incurred significant expenses in
connection with its defence under NAFTA. Accordingly, I would limit the
scope of production required by the respondent to those financial statements
and expense summaries requested by the applicant for the 2002 financial year.
[17]
The Board argues that Rule 317 does not
apply where a policy or practice, rather than an order or decision, is the
subject of a judicial review application. It is clear, however, from the Federal Court of Appeal’s judgment in Krause v. Canada,
[1999] 2 F.C. 476, that judicial review is available in respect of practices or
policies.
[18]
Given the availability of judicial review in
respect of administrative policies and practices, as confirmed by the Federal
Court of Appeal in Krause, above, it would be inconsistent to deny
applicants access to the material necessary to establish the grounds for review.
The practice or policy could be presented by the Board in numerous ways,
including as a statement from the Board. However, in this case, the most
logical and expedient way is for the Board to produce the summary in respect of
the 2002 financial year, which, as the parties have agreed, is likely to be
representative of the Board’s impugned practice.
Conclusion
[19]
For the reasons above, the applicants are
entitled to an order directing the Board to forward to the Registry a certified
copy of the financial statements and expense summaries in respect of the 2002 financial
year. An order will issue accordingly.
Amended
Style of Cause
[20]
Counsel for the
applicants brought an oral motion, on consent, to amend the style of cause to
delete the last named applicant Ron Duffy.
ORDER
THIS COURT ORDERS that:
1.
the style
of cause is amended to delete the last named applicant Ron Duffy;
2.
this
motion for production is allowed in part;
3.
the Board
forward to the Registry a certified copy of the financial statements and
summaries of the expenses charged to the separate accounts for the designated
area of the applicants in respect of the 2002 financial year; and
4.
there is
no order as to costs.
“Michael
A. Kelen”
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