Ottawa, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
THE MINISTER OF NATIONAL REVENUE
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::
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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. |
[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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1188-06
STYLE OF CAUSE: BRIAN AIRTH et al
and
THE MINISTER OF NATIONAL REVENUE
PLACE AND DATE
APPEARANCES:
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Mr. Martin Peters
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Ms. Donnaree Nygard
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SOLICITORS OF RECORD:
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ARVAY FINLAY Barristers & Solicitors Vancouver, British Columbia
J. MARTIN PETERS Barrister Vancouver, British Columbia
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia |