A-1273-83
Trans Quebec & Maritimes Pipeline Inc. (Appli-
cant)
v.
National Energy Board (Respondent)
Court of Appeal, Thurlow C.J., Ryan and Le Dain
JJ.—Ottawa, March 21 and April 19, 1984.
Practice — Applications to review and for leave to appeal
National Energy Board decisions — Motions requiring Board
to provide staff papers and all other papers relevant to
impugned decisions — Under R. 1402, tribunal required to
send forthwith to Registry after receipt of s. 28 application all
material in case as defined by said Rule, or forward to
Registry copies of same — Purpose of R. 1402 to communi
cate record to be reviewed by Court promptly in accordance
with s. 28(5) of Federal Court Act — R. 1402 casting duty on
tribunal to determine which papers relevant and forward same
to Court — Respondent failing to comply with Rule — Onus
on party seeking production of additional information to satis
fy Court as to their inclusion in case — Applicant not dis
charging onus — Whether staff reports prepared to assist
tribunal should be included in material on which tribunal's
decision reviewed to be determined in each case — Confiden
tial nature of reports not precluding production — Staff
opinions irrelevant to ascertainment of Board's reasons — R.
1301 governing applications for leave to appeal not authoriz
ing discovery nor fishing expedition — Motions dismissed —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(5) —
Federal Court Rules, C.R.C., c. 663, RR. 1301(2),(3),(4),
1402(1),(3) — National Energy Board Act, R.S.C. 1970, c.
N-6, s. 18 (as am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 65).
The applicant has brought two proceedings in this Court: an
application to review and set aside, and an application for leave
to appeal, decisions of the National Energy Board. Motions
were brought in both proceedings for orders requiring the
Board to provide staff papers prepared for the consideration of
the Board in making its decisions and all other papers relevant
to the matter which are in the possession or control of the
Board. In answer to a request by the Federal Court Registry
that the Board forward to it, in accordance with Rule 1402, the
relevant material, the Board proposed deferring the filing of
that material until the question of its relevancy for leave to
appeal had been resolved. The Board argues that its staff
papers are confidential, irrelevant and not part of the record of
its proceedings.
Held, the motions should be dismissed.
Under Rule 1402(3) a tribunal must forthwith after the
receipt of a section 28 originating notice either send to the
Registry of the Federal Court all material in the case as
defined in Rule 1402(1), or forward to the Registry copies of
such material unless the Court otherwise directs. It follows that
the Board's proposal to defer the filing of the necessary ma
terial is not one that the Court could entertain without a formal
motion with an opportunity for the applicant to respond. Under
subsection 28(5) of the Federal Court Act, review applications
are required to be heard and determined without delay and in a
summary way. Rule 1402(3) is designed to get the record to be
reviewed before the Court promptly. It is therefore not open to
a tribunal to defer complying with the Rule pending some
action being taken by a party to obtain a decision as to what is
required to be forwarded.
The effect of Rule 1402 is to cast on a tribunal, at least in
the first instance, the duty to determine what papers in its
possession or control are "relevant to the matter", and to
forward them forthwith to the Registry or prepare and forward
copies to the Registry. The tribunal knows what is relevant to
the decision. The Court, on the other hand, cannot know until
all the information has been put before it whether through
compliance by the tribunal with the Rule or by affidavits or
admissions placed on the Court record. If a party requests
additional papers, the onus is on him, on an application sup
ported by material showing their existence, to satisfy the Court
that they should be produced and included in the case.
The applicant has objected, unsuccessfully, to the production
of a class of papers on the ground that they are irrelevant. If
the Board was indeed convinced that the papers were irrelevant,
its only course was to comply with the Rule and leave them out
rather than awaiting a motion for their production. On the
other hand, if the Board could not properly take the position
that they were irrelevant, it would have to include them in the
material to be forwarded.
The applicant had not, however, discharged the onus of
satisfying the Court that the Board's papers should be included
as part of the case. The order, granted without written reasons,
of this Court in Sanyo Electric Trading Co. Ltd. et al. v.
Canadian Appliance Manufacturers Association et al. (file
A-291-82) should not be regarded as authority for the general
proposition that staff reports prepared for the assistance of
members of a tribunal either in the course of a proceeding or in
the judgment-making process are papers that must be included
in the material on which the tribunal's decision is to be
reviewed. However, where the decision of a tribunal can be
shown to have been based on staff reports, it may well be
possible to make out a case for requiring their inclusion. The
fact that the reports are prepared on a confidential basis does
not afford them protection. As to the opinions set out in staff
memoranda, they 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 be
clearly shown from its own words or actions to have been its
reasons.
With respect to the application for leave to appeal, there is
nothing in the material before the Court showing that the
papers sought to be produced relate to any of the applicant's
proposed grounds of appeal. Furthermore, Rule 1301, which
governs such applications, does not provide for a discovery
procedure nor does it authorize a fishing expedition. An appli
cant cannot demand that the whole of a tribunal's file be
transmitted to the Court so that he may search for grounds
supporting his application for leave to appeal.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Sanyo Electric Trading Co. Ltd. et al. v. Canadian
Appliance Manufacturers Association et al., order dated
September 15, 1983, Federal Court—Appeal Division,
A-291-82, not reported.
COUNSEL:
H. Soloway, Q.C. and James O'Grady, Q.C.
for applicant.
John Sopinka, Q.C. and Nick Schultz for
respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
F. H. Lamar, Q.C., Ottawa, for respondent.
Howard, Mackie, Calgary, for Nova, an
Alberta Corporation.
Fenerty, Robertson, Fraser & Hatch, Cal-
gary, for Canadian Petroleum Association
and for Independent Petroleum Association of
Canada.
McLaws & Company, Calgary, for Alberta
Petroleum Marketing Commission.
Clarkson, Tétrault, Montreal, for Gaz Mé-
tropolitain Inc.
McCarthy & McCarthy, Toronto, for Trans-
Canada Pipelines Limited.
The following are the reasons for order ren
dered in English by
THURLOW C.J.: The applicant has two proceed
ings pending in the Court. The first is an applica
tion under section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] (file number
A-1273-83) commenced on September 7, 1983, to
review and set aside
... the Decision rendered on the 29th day of August, 1983, by
the National Energy Board, by which the National Energy
Board dismissed the application of the Applicant, made August
11, 1983, pursuant to s. 17 of the National Energy Board Act,
R.S.C. 1970, c. N-6, that the Board review, rescind, change,
alter or vary the decision of the Board dated June, 1983, and
Orders TG-2-83 and TG-3-83 of the Board predicated thereon
and dated May 17, 1983, which decision and orders were made
in respect of the Applicant's application pursuant to Part IV of
the National Energy Board Act for certain orders respecting
tolls and tariffs.
The other proceeding is an application (83-A
370) filed on September 26, 1983, seeking leave to
appeal under section 18 of the National Energy
Board Act [R.S.C. 1970, c. N-6 (as am. by R.S.C.
1970 (2nd Supp.), c. 10, s. 65)] from
(a) the decision of the National Energy Board ("the Board")
dated June, 1983 in respect of an application by the Appli
cant under Part IV of the National Energy Board Act (Toll
Application), and Orders TG-2-83 and TG-3-83 of the Na
tional Energy Board predicated thereon, made May 17,
1983; and
(b) the decision or order of the National Energy Board made
August 29, 1983, dismissing the application of the Appellant
made August 11, 1983, pursuant to s. 17 of the National
Energy Board Act, for an Order that the Board review,
rescind, alter or vary those elements of the said orders of
May 17, 1983 and decision of June, 1983 referred to in the
said application;
and for
... an Order to extend the time to file this Application for
Leave to Appeal from the decision of the National Energy
Board dated June, 1983, and Orders TG-2-83 and TG-3-83
made May 17, 1983;
By notices dated November 16, 1983, motions
were brought in both proceedings for orders
... requiring the Respondent, the National Energy Board, to
prepare copies of, and provide as part of the case herein, the
following documentation:
The Minutes and Records of the proceedings before the
Board in the TQM Tolls Hearing held pursuant to Board
Order RH-4-82, including proceedings in respect of Board
Orders TG-2-83 and TG-3-83 and the decision of the Board
made August 29, 1983 dismissing the Applicant's application
for review of the said Orders, and including any staff papers
prepared for the consideration of the Board in making its
decisions, together with all other papers relevant to the
matter or to the application for leave to appeal and applica
tion which are in the possession of or under the control of the
National Energy Board;
At the hearing, counsel for the applicant stated
that he was no longer asking for the "minutes and
records of the proceedings of the Board" except
the minute showing the members of the Board who
dealt with the application for review. Counsel for
the respondent thereupon indicated there would be
no problem involved in giving the applicant that
information.
In support of the motions an affidavit by a
solicitor was filed showing that by letters dated
October 4 and October 7, 1983, the applicant's
solicitor had requested production by the National
Energy Board of inter alia the minutes and records
of the proceedings before the Board including any
staff papers prepared for the consideration of the
Board in making its decision, that a request from
the Registry to the Board to forward to the Court
in accordance with Rule 1402(1)' [Federal Court
Rules, C.R.C., c. 663] the materials making up
the case for the section 28 application as pre
scribed by the Rule was sent to the Board on
September 12, 1983, with a follow up letter on
September 26, 1983, and that counsel for the
Board had by a letter dated September 28, 1983,
addressed to the Deputy Administrator of the
Court, responded to the Court's request as follows:
Thank you for your letter of 12 September 1983. As you may
be aware TQM, on 26 September 1983, filed an application for
leave to appeal pursuant to subsection 18(1) of the National
Energy Board Act with respect to the decision which is the
subject of the above section 28 application. The leave to appeal
application is filed with the Court under Court File No.
83-A-370.
I presume that, bearing in mind the provisions of section 29
of the Federal Court Act, if the section 28 application proceeds,
it will proceed, should leave to appeal be granted, in conjunc
tion with an appeal pursuant to section 18 of the National
Energy Board Act. In regard to the application for leave to
appeal, I understand that TQM will be serving a notice pursu-
Rule 1402. (1) A section 28 application shall be decided upon
a case that shall consist, subject to paragraph (2), of
(a) the order or decision that is the subject of the application
and any reasons given therefor;
(b) all papers relevant to the matter that are in the possession
or control of the tribunal;
(c) a transcript of any verbal testimony given during the
hearing, if any, giving rise to the order or decision that is the
subject of the application;
(d) any affidavits, documentary exhibits or other documents
filed during any such hearing; and
(e) any physical exhibits filed during any such hearing.
ant to Rule 1301(3) with respect to relevant material in the
possession of the Board upon which TQM wishes to rely. Once
the question of the relevant materials for the leave to appeal
has been resolved, we would propose to file the necessary
materials with the Court in the leave to appeal proceeding
commenced under Court No. 83-A-370. It would seem that this
would also, eventually, satisfy the requirement of Rule 1402. I
trust that this method of proceeding is satisfactory.
The affidavit also exhibited a copy of a further
letter of October 24, 1983, addressed by the Secre
tary of the Board to the Administrator consisting
of some five pages of argument as to why the
Board should not be required to forward to the
Court the documents in question. The letter indi
cates that there are in fact in the possession of the
Board "internal memoranda ... reflective of the
Board's internal deliberative process", and that
these staff memoranda express views of their
authors. In his letter, the Secretary asserted that
these memoranda are confidential and not part of
the record of the Board's proceedings.
The motions were heard together on March 21,
1984, and judgment thereon was reserved. Since
then, letters have been sent to the Court indicating
that it is common ground between the parties that
staff members of the Board, in reviewing the ma
terial on the record of a Board proceeding, may
express opinions in the course of that review.
Though the letters do not say so, it seems safe to
assume that the opinions referred to are expressed
in staff memoranda and that the memoranda here
in question include such opinions.
That, as I see it, summarizes the whole of what
is before the Court as to the nature of the docu
ments which the applicant seeks to have included
in the case for the section 28 application and also
to have forwarded to the Court for use on the
application for leave to appeal.
Though the motions were heard together, it
appears to me to be desirable to deal with them
separately, both because the subject-matter of the
attack in the section 28 proceeding is not precisely
the same as that in the application for leave to
appeal and because the Rule applicable in the
section 28 proceeding differs from those applicable
on the application for leave to appeal.
Before coming to the precise issue, it may be
noted that the letter of September 28, 1983, from
the Board's counsel to the Deputy Administrator
was and is an unsatisfactory response to the
request of the Court for compliance with Rule
1402(3). 2 The proposal made in it to defer for
warding the material as required by that Rule was
one that the Court could not entertain without a
formal motion with an opportunity to the applicant
to respond. Nor could the Registry accede to its
suggestion. Under subsection 28(5) of the Federal
Court Act review applications are required to be
heard and determined without delay and in a
summary way. Rule 1402(3) is designed to get the
record to be reviewed before the Court promptly.
The request for the record takes the place of what,
under different Rules, might be a writ or order
peremptorily requiring the return of the tribunal's
record. It is not open to a tribunal to defer comply
ing with the Rule pending some action to be taken
by a party to obtain a decision as to what is
required to be forwarded. Such a course is bound
to delay the prompt disposition of the proceeding.
The fact that this section 28 application has been
pending since last September without the record
having been forwarded is an example of the effect
of such a course.
2 Rule 1402. .. .
(3) Unless the Court otherwise directs, of its own motion or
upon the application of an interested person, the Deputy Attor
ney General of Canada or counsel specially appointed to apply
on behalf of the tribunal, the tribunal shall, forthwith after
receipt of the section 28 originating notice, either
(a) send to the Registry of the Court all the material in the
case as defined by paragraph (1), or, if some part thereof is
not in its possession or control, the part thereof that is in its
possession or control together with a statement of the part of
the case not in its possession or control; or
(b) prepare copies of the material referred to in paragraph
(a) that is in its possession or control, except the physical
exhibits, duly arranged in sets and duly certified by an
appropriate officer to be correct, and send four copies of each
set to the Registry of the Court together with the physical
exhibits if any and a statement of the part of the case not in
its possession or control, and send one copy of the copies and
such statement to each of the interested persons.
But there is a more important reason why the
Rule must be complied with, one which, as I see it,
goes to the root of the problem raised by the
motion. Rule 1402(1) defines the material of
which the case is to consist. The definition
includes:
(b) all papers relevant to the matter that are in the possession
or control of the tribunal;
The word "matter" in this paragraph may be
somewhat broader than the expression "order or
decision" found in paragraphs (a) and (c) but for
present purposes it can, I think, be taken as refer
ring to the order or decision which is to be
reviewed in the section 28 proceeding. What Rule
1402(3) then requires is that the tribunal forth
with send to the Registry of the Court, pursuant to
paragraph 1402(3)(a) all the material in the case
as defined by Rule 1402(1) that is in the tribunal's
possession or control or to proceed under Rule
1402(3)(6) to prepare the case and send to the
Court and parties the required number of copies.
The effect of this system is to cast on the
tribunal, at least in the first instance, the duty to
determine what papers that are in its possession or
control fall within the meaning of paragraph (b) of
Rule 1402(1) and to forward them forthwith to
the Registry under paragraph (a) or to prepare
and forward copies of them under paragraph (b) of
Rule 1402(3). The tribunal will know what it has
or has had that is relevant, what use has been
made of it and why it is relevant to the decision.
But at that stage the Court will not know and will
be in no position to take notice of any such mat
ters. It will only be in a position to know and to
decide any of them when the necessary informa
tion about them has been put before the Court
whether through compliance by the tribunal with
the Rule or by affidavit or admissions placed on
the Court record. If, when the tribunal has for
warded what it considers to fall within the defini
tion of Rule 1402(1), a party considers it neces
sary to have before the Court additional papers, it
will be for him to persuade the Court on an
application supported by material showing their
existence and why they are needed that they
should be produced by the tribunal and included in
the case. Such a motion might then be resisted by
putting before the Court affidavits establishing the
facts which show either that the alleged documents
do not exist or are not relevant to the decision or
that for some other reason the tribunal should not
be ordered to produce them. But until such proce
dures have been carried out the Court will be in no
position to deal with either the relevance of such
additional papers or the need for an order for their
production and inclusion in the case. On the other
hand, when such procedures have been carried out
the Court will have before it the materials on
which to decide the point as well as the representa
tions of the parties.
The position in the present case, as I see it, is
that the National Energy Board has not complied
with the Rule. It has neither forwarded to the
Court under paragraph (a) nor prepared and for
warded to the Court under paragraph (b) of Rule
1402(3) copies of the papers in its possession or
control which it considers to be within the defini
tion of paragraph (b) of Rule 1402(1). Instead, it
objects on this motion to the production and inclu
sion in the case of a class of papers which it has in
its possession but which it says are not relevant
within the meaning of the Rule. If so, its course, as
I see it, was to comply with the Rule and leave
them out rather than to wait for a motion by
someone else to require that they be included. But,
if the Board could not properly take the position
that the papers were irrelevant, short of applying
for and obtaining an order under Rule 1402(2) to
vary the case by omitting them, it had no course
but to include them in the material to be forward
ed under Rule 1402(3). It goes without saying that
the precise nature and contents of the documents
in question would have to be exposed by affidavit
or other evidence for such a motion to succeed.
On the other hand, assuming that the Board
when it complies with the Rule will not include the
documents here in question, has the applicant
demonstrated that they should be included? I
think not. All that is known of them is that they
are papers authored by members of the Board's
staff of assistants (who are provided for by stat
ute), which papers include opinions by such staff
members. It is not unlikely that the papers or some
of them came into existence after the public hear
ings before the Board and in the course of its
decision-making process. While they may have
been created in the course of and pertain to the
proceeding before the Board which resulted in the
decision under attack, it is not shown by anything
in the material before the Court that such opinions
or the papers containing them amount to addition
al evidence or to anything more than comments or
suggestions by the staff on the material before the
Board or that they form part of the material on
which the decision is founded. Nor is there any
reason made out why such papers ought to be
before the Court for the hearing of the section 28
application. Indeed, having regard to the fact that
the section 28 application is brought against the
Board's refusal to review its earlier decision, which
I do not think can be regarded as an application to
review the earlier decision, I find it difficult to
imagine what memoranda or opinions, if any,
having to do with that decision are in existence.
Accordingly, I would refuse the order sought and
dismiss the motion brought in the section 28
proceeding.
With respect to the application for leave to
appeal, Rule 1301(2),(3) and (4) provides:
Rule 1301. .. .
(2) An application for leave to appeal shall be supported by
an affidavit establishing the facts on which the applicant relies.
(3) Where an applicant wishes to rely on material in the
possession of the tribunal whose order or decision is the subject
of the proposed appeal, whether it be the whole of that tribu
nal's relevant file or some particular material, he may serve, on
the appropriate officer of the tribunal, a copy of the notice of
the application for leave to appeal with a request attached
thereto that such material be transmitted to the Administrator
of the Court so as to be available to the Court at the time of the
application; and when such a request is so served, the tribunal
shall cause the material requested to be transmitted to the
Administrator of the Court, or, if for any reason it is impossible
to do so, it shall so inform the applicant and the Administrator
in writing and shall send a senior responsible officer to Court
on the return of the application to answer any questions that
the Court may have with regard thereto.
(4) Subject to any direction by the Court, after the applica
tion for leave to appeal has been heard, the Administrator shall
return the material received under paragraph (3).
In addition to the material I have already sum
marized, there is on the file of the application for
leave to appeal an affidavit filed in support of the
application for leave to appeal sworn by the Vice-
President and Treasurer of the applicant company
exhibiting a copy of the Board's reasons for deci
sion of June 1983, and a copy of the application of
August 11, 1983, for its review by the Board and
setting out seven issues which are put forward as
grounds for an appeal. The description of these
issues is lengthy and it would serve no purpose to
set them out in these reasons. They were scarcely
referred to and were not discussed on the hearing
of the present application. Nor is there anything in
the material before the Court to persuade one to
believe that the memoranda or papers of which the
applicant seeks production relate to or would lend
support for any of the proposed grounds of appeal.
The purpose of the Rule cited seems clear. An
applicant is to establish by affidavit the facts on
which he relies. If he requires the tribunal's file or
something in it to support what the affidavit
shows, he is entitled to have what he requires sent
to the Court for use on the hearing of the applica
tion, after which it is to be returned to the tri
bunal. The Rule, however, does not provide a
discovery procedure. Nor is it intended to author
ize a fishing expedition, of which the present
application has all the ear-marks, by making a
demand for the whole of the tribunal's file so that
the applicant can search for grounds for an
application for leave to appeal.
The applicant relied on an order granted with
out written reasons by this Court on September
15, 1983, in Sanyo Electric Trading Co. Ltd. et al.
v. Canadian Appliance Manufacturers Associa
tion et al. (file A-291-82) as a precedent for the
order sought in the present case. The order, which
was made under Rule 1402(1)(b) and (3) in a
section 28 proceeding, required the Anti-dumping
Tribunal to prepare copies and provide as part of
the case "the preliminary and the final reports
prepared for it by its staff in relation to this
matter". A review of the file affords no indication
of the reasoning which led the Court to make the
order but it may be noted that the information
appearing from the file as to the nature of the
reports and their bearing on the decision is consid
erably more precise than what is before the Court
in the present case. There are also differences in
the applicable statutes and in the procedures by
which the Anti-dumping Tribunal operates which
may have had a bearing on the view of the Court
as to the need for production of the reports. On the
whole, I do not think the order so made should be
regarded as authority for a general proposition
that staff reports prepared for the assistance of
members of a tribunal either in the course of a
proceeding or in the judgment-making process are
papers that must be included in the material on
which the tribunal's decision is to be reviewed. As
it appears to me, where the decision of a tribunal
can be shown to have been based on staff reports
to which the parties have not had access contain
ing evidentiary material to which the parties have
not had an opportunity to respond, it may well be
possible to make out a case for requiring that they
be included in the case for review. Further, in such
a situation the fact that the reports were prepared
and submitted on a confidential basis, in my view,
would not afford them protection. But no such
case has been made out here.
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.
I would dismiss the application.
RYAN J.: I agree.
LE DAIN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.