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
and
THE ATTORNEY GENERAL OF CANADA
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:
|
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:
|
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. |
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. |
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.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-612-06
STYLE OF CAUSE: RENOVA HOLDINGS LTD. ET AL. v. THE CANADIAN WHEAT BOARD ET AL.
DATE OF HEARING: December 4, 2006
APPEARANCES:
|
Mr. Richard Yaholnitsky
|
|
|
Ms. Thor Hansell
|
SOLICITORS OF RECORD:
|
Richard S. Yaholnitsky Merchant Law Group Yorkton, SK
|
|
|
Thor Hansell Aikins, MacAulay & Thorvaldson Winnipeg Manitoba
John H. Sims, Q.C. Deputy Attorney General of Canada |
(THE CANADIAN WHEAT BOARD)
FOR THE RESPONDENT (THE ATTORNEY GENERAL OF CANDA) |