Date: 19980427
Docket: T-2240-97
BETWEEN:
W. MARK ARSENAULT, of the Halifax Regional
Municipality, Province of Nova Scotia
Applicant
- and -
MINISTER OF TRANSPORT
Respondent
- and -
JANET SHRIEVES, General Manager, Halifax International Airport,
Halifax Regional Municipality, acting in that capacity pursuant to the
Department of Transport Act, R.S.C. 1985 as amended, the Transport Act,
R.S.C. 1985 as amended, and the Government Airport Concession
Operations Regulations, CRC 1979, as amended
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] In furtherance of an application for judicial review the applicant files a motion for directions, for an order pursuant to Rule 1613(4) that a certified copy of all of the materials and records requested by the applicant, including those to which the respondent Minister objects to produce, be produced to the applicant, and for an order pursuant to Rule 1614 extending the time in which the applicant may file his application record.
[2] After hearing counsel for the parties at Halifax on April 6, 1998, I orally allowed the applicant's motion in part. I refused to order production of documents which the respondent Minister objected to produce, but I allowed an extension of time to April 8, 1998 for filing of the applicant's application record. An Order issues confirming those directions, for the reasons that follow.
[3] The originating notice of motion commencing the application for judicial review was filed October 17, 1997. By that application the applicant seeks judicial review of a decision by the General Manager of the Halifax International Airport dated September 18, 1997 refusing to consider the application of the applicant, Mr. Arsenault, for an Airport Taxi Licence, on the ground that no such licenses are to be issued for the period September 1994 to September 1999 (presumably no licenses additional to those originally issued for that five-year period). The relief sought by the applicant includes a declaration that the freeze on the issuance of Airport Taxi Licenses for the period stipulated is null and void as being contrary to law and to the principles of natural justice and fairness. A further declaration is sought that the applicant is entitled to the issuance of an Airport Taxi Licence.
[4] In his originating motion the applicant requested the respondents to send certified copies of certain documents to the applicant and to the Court Registry. Included among the documents so described were the following:
| ... |
| (3) All documentation relating to the issuance, transference, cancellation, modification or issuance of all or any Airport Taxi Licences at the Halifax International Airport since October 1, 1994; |
| (4) All documentation or records relating to the imposition of penalties, discipline or other action including suspension or cancellation of any or all Airport Taxi Licences since October 1, 1994. |
[5] Copies of the documents and records requested by the applicant have been provided by the respondent Minister except that the respondent has declined to produce, and objects to producing,
| a. documentation concerning the application for and transfer of individual licenses between replacement vehicles of existing licensees, that is, third parties; and |
| b. documentation concerning complaints and discipline of persons with Airport Taxi licenses, other than Mr. Arsenault, that is, documentation concerning third parties. |
[6] In the case of both classes of documents that the respondent objects to produce it is urged they are not relevant to the issues raised by the application for judicial review. I am persuaded that this is so. The decision questioned by the application for judicial review is that in relation to the application for an Airport Taxi Licence made by Mr. Arsenault.
[7] The respondent's affidavit, filed, states that there have been no transfers of taxi licenses. The general policy is that no new licenses will be issued, and no transfers will be approved, in the five-year period from 1994 to 1999. The applicant apparently does not accept that this policy is being followed and further, he believes that other individuals have attempted to circumvent the prohibition on transfer of licenses. Even if there were attempts to do so, or even if transfers were recorded in the documents requested and not produced, in my opinion, that would not be relevant to the issues raised in the application for judicial review.
[8] As for the information that the respondent objects to produce concerning complaints and discipline of persons, third parties, holding Airport Taxi Licenses, the applicant seeks this to demonstrate that the "demerit system" applicable to licence holders is being applied in an unfair manner. But even if that could be established by the information sought, in my opinion, that would not be relevant to the decision questioned by the application for judicial review.
[9] The documents sought by the applicant must form a part of the record upon which the decision in question in an application for judicial review is based. In my opinion, the documents now requested which the respondent Minister declines to produce, that is, documentation relating to suspected transfers or issuance of licenses to third parties, and documentation relating to complaints and discipline of others, third party airport taxi licence holders, is not a part of the record upon which the decision here questioned was made. It is irrelevant to the issues raised in the application for judicial review. Thus the applicant's request for an order that the respondent produce this information, is dismissed.
[10] In accord with the Court's Rules the applicant's application record was to have been filed December 17, 1997. It was not. The applicant was notified by letter dated November 21, 1997 of the respondent's objection to production of documents discussed above. When the applicant's application record was not filed by December 30, 1997 the Court's Registry wrote to the applicant's counsel to inquire whether there was an intent to pursue the matter noting the absence then of an application for an extension of time. For the applicant a letter of January 19, 1998 in response advised that it was intended to seek directions from the Court concerning the respondent's objection to production of documents requested. But that was not done and no application for an extension of time was made until the applicant's notice of motion was filed on March 16, 1998 and heard on April 6, 1998.
[11] In my opinion, the applicant raises an arguable issue in this application for judicial review. Further, I am prepared to accept, principally from the record and submissions of counsel, that the applicant's intent to pursue the application continued and delay was the result of the perceived necessity to seek directions about information considered important to the applicant which the respondent objected to disclosing. Further, at the hearing counsel for the applicant urged that the respondent was not prejudiced by the delay and that, if further documentation were not ordered to be produced, the applicant's application record would be filed forthwith if an extension of time to file were allowed.
[12] In the circumstances, absent any prejudice to the respondent, accepting a continuing intent of the applicant to pursue the matter subject only to clarification by the Court of the documents to be produced and the record upon which the decision in question was based, I allowed the application to extend time to file the applicant's application record, to be filed on or before April 8, 1998.
W. Andrew MacKay
Judge
OTTAWA, Ontario
April 27, 1998.