Date: 20070419
Docket: T-1188-06
Citation: 2007
FC 415
Ottawa, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
BRIAN
AIRTH et al
Applicants
and
THE
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant
has brought a motion for an Order under Rule 318(4) of the Federal Courts
Rules compelling the Respondent to produce material relevant to the
Application(s) for Judicial Review pursuant to Rule 317. The Applicant in this
instance is the lead applicant in consolidated judicial reviews filed by in
excess of 40 applicants.
[2]
The
Applicant challenges the authority of the Respondent in issuing letters of
requirement for information purportedly for income tax audit purposes. The
Applicant’s position is that the predominant purpose of these letters is the
Applicant’s penal liability and that the Respondent’s actions are outside the
authority and purpose of the Income Tax Act.
[3]
The
Respondent brought a preliminary motion to strike the judicial review because
it was filed outside the 30-day time limit specified in s. 18.1(2) of the Federal
Courts Act. I dismissed the motion on the basis that the state of the
pleadings at that time indicated that the challenge was to the actions of the
Respondent, rather than a specific decision, and therefore s. 18.1(2) of the
Act did not apply. Because this was early days in this proceeding, I reserved
for the Respondent the right to re‑argue the time limit issue at the
judicial review, which is the usual method of dealing with time limit issues.
[4]
The
relevant provisions are s. 18.1(2) of the Federal Courts Act and Rule 317(1)
of the Federal Courts Rules::
|
18.1
(2) An application
for judicial review in respect of a decision or an order of a federal board,
commission or other tribunal shall be made within 30 days after the time the
decision or order was first communicated by the federal board, commission or
other tribunal to the office of the Deputy Attorney General of Canada or to
the party directly affected by it, or within any further time that a judge of
the Federal Court may fix or allow before or after the end of those 30 days.
|
18.1 (2) Les demandes de contrôle judiciaire
sont à présenter dans les trente jours qui suivent la première communication,
par l'office fédéral, de sa décision ou de son ordonnance au bureau du
sous-procureur général du Canada ou à la partie concernée, ou dans le délai
supplémentaire qu'un juge de la Cour fédérale peut, avant ou après
l'expiration de ces trente jours, fixer ou accorder.
|
|
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.
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317. (1) Toute
partie peut demander la transmission des documents ou des éléments matériels
pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession
de l’office fédéral dont l’ordonnance fait l’objet de la demande, en signifiant
à l’office une requête à cet effet puis en la déposant. La requête précise
les documents ou les éléments matériels demandés.
|
[5]
I have
difficulty with the Applicant’s argument that the reference to “in respect of a
decision or order” in s. 18.1(2) is not a reference to the same order as “whose
order is the subject of the application …” in Rule 317(1). Aside from the
discordance in reference to “decision or order” in the Act and only to “order”
in the Rule, it seems to me that Rule 317(1) is directed to the order (or
decision) under review and referred to in s. 18.1(2) of the Act.
[6]
Rule 317
is clearly more suited to the traditional type of judicial review of an order
or decision where there is a record below which forms the substrata of the
order or decision under attack. Rule 317 is an inelegant tool in dealing with
judicial review of actions, conduct or policies and practices.
[7]
I concur
with Justice Kelen’s sentiments in Renova Holdings Ltd. v. Canada (Canadian
Wheat Board), 2006 FC 1505 at paragraph 18 that it would be inconsistent
with the right to challenge administrative policies and practices (including,
presumably, specific actions) to deny applicants access to the material
necessary to establish or, more particularly, to challenge the government’s
claim as to the underlying legitimacy of its policies, practices or actions.
The issue is the manner in which this material is to be produced without
authorizing a fishing expedition or a discovery type process.
[8]
The weight
of authority in this Court is that the absolute right and procedure set forth
in Rule 317 et seq. is available only where there is an “order” which is the
subject-matter of judicial review. (See Patterson c. Canada (Correctional Services), 2004 FC 972 and also Guades
v. Canada (Attorney General), 2005 FC 351). However, this
is largely an issue of form rather than substance as I have no doubt that the
relevant materials for a judicial review must be disclosed one way or another.
[9]
In this
case, the Respondent has said that it has produced all the relevant material.
This is consistent with its position that what is really under judicial review
is an “order or decision” to which issues of standard of review and the like
may have application.
[10]
The
fulsomeness of disclosure may be an issue in cross-examination but is not
something with which the Court can deal at this time.
[11]
Given the
Respondent’s disclosure commitment earlier referenced, the demand under
Rule 317 is moot assuming that the relevant material is produced.
[12]
Therefore,
this motion is dismissed with costs in the cause.
ORDER
IT IS ORDERED THAT this motion is dismissed with
costs in the cause.
“Michael
L. Phelan”
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