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Tsleil-Waututh Nation v Canada (Attorney General) (2017 FCA 128)

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Judicial Review – Admissibility of Evidence –Canada Evidence Act

In this decision, the Federal Court of Appeal (the “FCA”) considered the following two motions:

(a) a motion by one of the applicants, the Tsleil-Waututh Nation, seeking production of relevant documents from Canada; and

(b) a motion by the Attorney General of Canada (“Canada”), seeking leave to file a supplementary affidavit to correct errors and omissions in an earlier affidavit.

The FCA granted Canada’s motion but denied the Tsleil-Waututh Nation’s motion, for the reasons summarized below.

The Consolidated Judicial Review Proceedings

The motions were considered by the FCA within the context of the FCA’s consideration of fifteen consolidated applications for judicial review. The applicants for review are seeking to quash certain administrative decisions approving the Trans Mountain Expansion Project (the “Project”). The administrative decisions subject to judicial review by the FCA are:

(a) the NEB decision report, dated May 19, 2016 (the “NEB Decision”); and

(b) the Order in Council, PC 2016-1069, dated November 29, 2016, made by the Governor in Council (the “GIC”).

The FCA explained that the $7.4 billion Project adds new pipeline, in part through new rights of way, expanding the existing 1,150-kilometre pipeline running from Edmonton, Alberta to Burnaby, British Columbia. The Project is expected to increase the existing pipeline’s capacity from 300,000 barrels per day to 890,000 barrels per day following the expansion.

The applicants challenged the administrative approvals on a number of grounds, including administrative law principles. statutory law, and section 35 of the Constitution Act, 1982 regarding aboriginal rights and Canada’s duty to consult.

Canada’s Motion

In its motion, Canada sought leave from the FCA to file a supplementary affidavit to correct dates in a previous affidavit and supply missing records. Canada submitted that the errors and omissions were inadvertent.

The FCA noted that the authority for allowing a party to file an additional affidavit on judicial review is provided under Rule 312 of the Federal Courts Rules, SOR/98-106 (the “Rules”). The FCA explained that case law under Rule 312 has established that additional affidavits are permitted where it is “in the interests of justice,” having regard to whether:

• the evidence will assist the court (in particular, its relevance and sufficient probative value);

• admitting the evidence will cause substantial or serious prejudice to the other side; and

• the evidence was available when the party filed its affidavits or it could have been discovered with the exercise of due diligence.

FCA Finding re Canada Motion

The FCA noted that the applicants offered no evidence of prejudice and did not oppose Canada’s motion. The FCA found that, on balance, the above factors weighed in favour of admitting Canada’s supplementary affidavit and therefore granted Canada leave to file its supplementary affidavit.

Tsleil-Waututh Motion

The Tsleil-Waututh Nation’s motion sought an order from the FCA to address what it submitted were “serious deficiencies in the evidentiary record.”

Specifically, the Tsleil-Waututh Nation asserted that:

(a) a request to Canada for disclosure under Rule 317 of the Rules had gone unfulfilled;

(b) the materials that the GIC relied upon in making its decision to approve the Project were not all before the FCA; and

(c) more evidence was in the possession of Canada that should be produced.

Certificate under Section 39 of the Canadian Evidence Act

The FCA noted that Canada had issued a certificate under section 39 of the Canada Evidence Act (“CEA”) with respect to two of the documents sought. The FCA explained that CEA section 39 allowed Canada to assert that certain information considered by the GIC could not be disclosed.

The certificate covered the following two documents:

1. a letter to the President of the Treasury Board, in November 2016 from the Minister of Natural Resources, regarding the scheduling of consideration of a proposed Order in Council concerning the Project (“Document #1”); and

2. a submission to the GIC from the Minister of Natural Resources, regarding a proposed Order in Council concerning the Project, including signed Ministerial recommendation, summary and accompanying materials (“Document #2”).

Section 39(1) of the CEA provides as follows:

39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

The FCA referred to Babcock v. Canada, 2002 SCC 57 (“Babcock”), where the SCC explained that CEA section 39 “is Canada’s response to the need to provide a mechanism for the responsible exercise of the power to claim Cabinet confidentiality in the context of judicial and quasi-judicial proceedings.” The FCA noted that its role in reviewing a section 39 certificate is limited and that it must refuse disclosure of the information covered by a certificate “without examination or hearing of the information” (citing Babcock at para 38). The FCA explained that its review was limited to ensuring that the decision to make the certificate and the certificate itself “flow from statutory authority clearly granted and properly exercised” (citing Babcock at para 39).

The FCA explained that its review of a section 39 certificate involved considering whether:

(a) the information for which immunity was claimed fell within the categories listed in subsection 39(2) of the CEA; or

(b) whether the Clerk or Minister had improperly exercised the discretion conferred by subsection 39(2).

The FCA explained that the second element required the Clerk or minister to provide a description of the information sufficient to establish, on its face, that the information was a Cabinet confidence, falling within the categories listed in section 39(2) of the CEA.

FCA Findings re Document #1 and Document #2

The FCA found that the description of Document #2 met that test. Specifically, the FCA found that the description identifying the document as a submission from a Minister to the entire GIC during the month of its meeting qualified for protection under paragraph 39(2)(a) (“a memorandum the purpose of which is to present proposals or recommendations to Council”) and paragraph 39(2)(d) (“a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy”).

The FCA found that the description of Document #1 did not lead the Court to conclude that it fell under subsection 39(2), as the description provided only a discussion of the timing of a meeting.

Although the description of Document #1 was not sufficient for the FCA to find it falling under subsection 39(2), the FCA found that it would nevertheless deny the Tsleil-Waututh Nation any relief. Document #1 concerned only timing and nothing in the consolidated applications turned on the timing of Cabinet’s consideration of the matter. The FCA therefore found that Document #1 was irrelevant and, therefore, not admissible.

The FCA went on to consider whether Rule 317 of the Rules required Canada to produce more material to the Tsleil-Waututh Nation.

Production Under Rule 317

The FCA explained that under Rule 317 of the Rules, applicants can request from an administrative decision-maker material relevant to an application that is in the possession of the decision-maker and not in the possession of the applicants by serving on the decision-maker and filing a written request, identifying the material requested.

The FCA noted that Rule 317 is only a mechanism by which applicants can obtain the record before the administrative decision-maker. It is not a means by which the record is placed before the reviewing court.

Admissible Evidence on Judicial Review

The FCA noted that, as a general rule, on judicial review only the evidentiary record that was before the administrative decision-maker is admissible before the reviewing court.

The FCA noted, however, that there are three judicially recognized categories exceptions. Namely, the FCA may receive an affidavit that:

(a) provides general background in circumstances where that information might assist the reviewing court in understanding the issues relevant to the judicial review;

(b) is necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can engage in meaningful review for procedural unfairness; and

(c) an affidavit may be received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding.

The FCA found that, in this case, there was no admissible exceptional evidence that would not be available by way of cross-examination on affidavits already filed in the consolidated proceedings. The FCA noted that Canada filed affidavit evidence related to its consultative activities both before and after the Order in Council was made. The Indigenous applicants had also filed evidence about their consultative activities and Canada’s consideration or non-consideration of things put to it and its responses or non-responses.

Although the FCA did not grant the production requested by the Tsleil-Waututh Nation, the FCA warned that: “if there are gaps in the evidence Canada may suffer for that if, on the law and the state of the imperfect evidentiary record, it deserves to.”

The FCA explained that the Court can draw adverse inferences from missing evidence. (see, e.g., Pfizer Canada Inc. v Teva Canada Limited, 2016 FCA 161). If the Tsleil-Waututh Nation put something important to Canada and it turned out there was a gap in the evidence concerning what Canada did in reaction to it, the FCA noted that Canada may have to explain such a gap. Absent evidence of Canada’s reaction, the FCA stated that it may be driven to find that Canada did not react.

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