Date: 20010530
Docket: T-305-01
Neutral Citation: 2001 FCT 557
BETWEEN:
THE SCHWARTZ HOSPITALITY GROUP
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] On February 21, 2001, the applicant filed a notice of application pursuant to section 18.1 of the Federal Court Act for judicial review in respect of the decision of Mr. Tom Lee, Chief Executive Officer, Parks Canada Agency dated January 22, 2001.
[2] On April 4, 2001, Justice Teitelbaum issued a direction that the applicant shall submit in writing its reply to the respondent's objection for not filing all documents.
[3] The respondent was given a delay to submit its reply to the applicant.
[4] I have reviewed carefully the written submissions of the respondent concerning the scope of production of certified documents and also the reply to objection filed by the applicant.
[5] On March 13, 2001, Mr. Tom Lee, Chief Executive Officer of Parks Canada Agency provided a certification. In that certification, Mr. Lee explained how the decision was made and what documents were before him at the time. In the same certification document he objected to producing any additional materials on the grounds that the residual request for certified documents stated in the notice of application was in the nature of Examination for Discovery seeking documents which were not before the decision-maker and were outside the scope of a request under Rule 317.
[6] The Federal Court of Appeal has already decided that only documents that were actually before a tribunal or a minister when their decision was made had to be produced pursuant to the Federal Court Rules. In 1185740 Ontario Ltd. v. Minister of National Revenue (1999) 247 N.R. 287 (F.C.A.), Justice Sexton held:
In Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), this court held that only documents which were actually before the Human Rights Commission in making its decision had to be produced. Other documents relied upon by the investigator did not have to be produced in the absence of evidence that the investigator had inaccurately summarized them. To much the same effect is the decision of this court in Terminaux Portuaires du Québec Inc. v. Conseil Canadien des relations du travail (1993), 164 N.R. 60; 17 Admin. L.R. (2d) 16 (F.C.A.). I accept and follow these decisions.
[7] The applicant suggests that all material disclosing recommendations, advice and rationale of the decision in the possession of respondent should be included. However, as it was pointed out by the respondent, the Federal Court of Appeal has addressed this consideration in Trans Quebec & Maritimes Pipeline Inc. v. N.E.B., [1984] 2 FC 432, Chief Justice Thurlow held:
The applicant's memorandum indicates that the principal reason for seeking the inclusion of staff memoranda in the case is to attempt to establish the Board's reasons for decision. The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the Board's reasons for decision because they cannot be assumed to have been adopted by it as its reasons. The Board's reasons for decision are those which it chooses to express or which can otherwise be clearly shown from its own words or actions to have been its reasons.
[8] In my view, at this stage, the respondent has provided the documents that should be provided pursuant to Rule 317 which is the material that was before the decision-maker at the time the decision was made.
[9] For these reasons, the applicant's motion is dismissed with costs.
Pierre Blais Judge
OTTAWA, ONTARIO
May 30, 2001