Date: 20040923
PRESENT: LINDEN J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Calgary, Alberta, on September 23, 2004.
Order delivered at Calgary, Alberta, on September 23, 2004.
REASONS FOR ORDER BY: Linden J.A.
Date: 20040923
PRESENT: LINDEN J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] In this motion, the Appellant seeks the release of certain documents that are alleged to be relevant and necessary to the proper disposition of this appeal as follows:
(a) CRTC staff briefing papers which were before the CRTC in making the 26 March Letter and TC 2004-3;
(b) documentation showing that the CRTC considered and applied the External Charging Policy before expanding telecommunications fees to include the operating income of partners of Canadian carriers who file tariffs; and
(c) documentation showing that the procedures contemplated by the User Fees Act were followed before TC 2004-3 was issued.
[2] Following argument about items b and), it was agreed by counsel that, if the request for these items were reworded to request any documentation that "referred to" the External Charging Policy and the User Fees Act, the request would be complied with. (It was indicated, however, that there was no such documentation in the file).
[3] As for the request for the staff "Briefing Papers", the issue is rather complicated. According to Mr. Tyhurst, there is in existence a staff "memorandum" (not Briefing Papers) that relates to these decisions which contains certain information including some material that may be privileged. It is urged by Mr. Tyhurst that the material should not be disclosed, relying on the Court's decision in Trans Quebec & Maritime Pipeline v. Office National de l'Energie[1984] 2 F.C. 432, where Chief Justice Thurlow stated that where staff reports contained evidentiary material to which the parties lacked access they might have to be included in the case for review. In general, however, Chief Justice Thurlow indicated that staff memoranda were irrelevant in determining the reasons for the Board's decision, as it cannot be assumed to have been adopted by it as the reasons. In the Trans Quebec case the memo was sought in order to determine the reasons for the Board's decision. In Beno v. Canada (May 2, 1997), Justice MacKay adopted the same approach in denying access to certain material relating to "policy deliberations" of the Commissioners as being irrelevant to the application for judicial review. (See also Richard J. in Canada v. Canada Royal Commission of Inquiry on the Blood System (1996), 133 D.L.R. (4th) 565 at p. 579).
[4] Mr. Lowe contends, however, that the material in the staff briefing papers or memoranda are relevant and necessary to the fair disposition of this appeal. He relies on Canada (Human Rights Commission) v. Pathak [1995] F.C.J. No. 555, where Mr. Justice Pratte held that a document is relevant to an application for judicial review "if it may affect" the decision of the Court. That, of course, depends on the grounds of the judicial review. In this case the grounds for the judicial review are lack of fairness and the consideration of irrelevant matters or the failure to consider relevant matters. In Pitt Polder Preservation Society v District of Pitt Meadows (June 29, 2000) the B.C. Court of Appeal, in a municipal context, indicated that it was important for fairness to examine 'reports and other documents that are material to the approval". (See also BP Canada v. Alberta Energy and Utilities Board (Mar 18, 2003 (ALTA. C.A.)).
[5] In my view, the material sought by the Appellant may well have affected the decision of the Board in this case. There was no oral hearing before making the decision. The reasons are very skimpy and may not disclose all the considerations taken into account. The legal nature of a partnership seems to be the main rationale for the decision. The documents in the record consist of 6 items that were in the possession of both sides and one Decision Letter dated July 24, 2001 concerning Teleglobe, of which the Appellant had no notice but which was surprisingly listed in Schedule A in the response to the Appellant's request. It is contended that this letter may have influenced the Board. Whether this letter is "evidence" or is merely a "decision" of the Board is unclear, but in either event, it may have been important to the ultimate resolution of the case and the Appellant had no chance to make representations about it. Whether the Board considered the External Charging Policy and the User Fees Act , the latter of which came into force before the decision concerning TC 2004-3 was released, may become material in the hearing of this appeal. The Staff Memo may enlighten the Court on this matter.
[6] On balance, therefore, I am of the view that the Staff Memorandum that was before the Board should be delivered to the Registry and served upon the Appellant, subject of course to any claims of privilege in relation to any parts of the document.
[7] As for the extension of time, the time for completing the Appeal Book is extended until 10 days following the agreement of the parties concerning the unprivileged contents of the memorandum or until 10 days following any decision of this Court that may be necessary to decide the unprivileged contents of the Memorandum.
"A. M. Linden"
J. A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-364-04
STYLE OF CAUSE: Telus Communications v. Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 23, 2004
REASONS FOR ORDER : LINDEN J.A.
DATED: September 23, 2004
APPEARANCES:
Mr. John E. Lowe FOR THE APPELLANT
Mr. John S. Tyhurst FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bennett Jones LLP
Calgary, Alberta FOR THE APPELLANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT