Judgments

[1996] 2 F.C. 668

T-154-96, T-156-96, T-157-96,

T-158-96, T-159-96, T-160-96,

T-161-96, T-163-96, T-164-96,

T-165-96, T-166-96, T-167-96,

T-168-96, T-169-96, T-177-96

* The Attorney General of Canada, Dr. Albert Joseph Liston, Dr. Alastair James Clayton, Dr. Norbert Gilmore, Dr. Denise Leclerc, Jake Epp, Dr. Gordon A. Jessamine, Dr. Wark Boucher, Dr. David Pope, Monique Bégin, Dr. John Furesz, Dr. Maureen M. Law, David Kirkwood, Dr. Denys Cook, Dr. Emmanuel Somers, Dr. J. W. Davies, Bruce Rawson, J. L. Fry, and Dr. A. B. Morrison, Bayer Inc., Craig A. Anhorn, The Canadian Red Cross Society, George Weber, Dr. Roger A. Perrault, Dr. Martin G. Davey, Dr. Elizabeth Ross, Dr. Morris A. Blajchman, Dr. Terry Stout, Dr. Joseph Ernest Come Rousseau, Dr. Noel Adams Buskard, Dr. Raymond M. Guevin, Dr. John Sinclair MacKay, Dr. Max Gorelick, Dr. Roslyn Herst, and Dr. Andrew Kaegi, Armour Pharmaceutical Company and Rhone-Poulenc Rorer Inc., Connaught Laboratories Limited, Baxter Corporation, Le Procureur général du Québec et l’Honorable Camille Laurin, The Honourable Dennis Timbrell, The Honourable Larry Grossman, The Honourable Keith Norton, The Honourable Alan Pope, The Honourable Murray Elston, The Honourable Philip Andrewes and The Honourable Elinor Caplan, Le Procureur Général du Québec et l’Honorable Thérèse Lavoie-Roux, Le Procureur Général du Québec et l’Honorable Pierre-Marc Johnson, Le Procureur général du Québec et l’Honorable Marc-Yvan Côté, Le Procureur Général du Québec, Le Procureur Général du Québec et l’Honorable Guy Chevrette, Her Majesty the Queen in Right of British Columbia, Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Newfoundland, Her Majesty the Queen in Right of the Yukon Territories, Her Majesty the Queen in Right of the Northwest Territories, The Honourable Stephen Rogers, The Honourable Jim Nielsen, The Honourable Peter Dueck, The Honourable John Jansen, The Honourable David Russell, The Honourable Marv Moore, The Honourable Nancy Betkowski, The Honourable Larry Desjardins, The Honourable Donald Orchard, The Honourable Charles Gallager, The Honourable Nancy Clark Teed, The Honourable Raymond Frenette, The Honourable Gerald Sheehy, The Honourable Ronald Frenette, The Honourable Joel Matheson, The Honourable Albert Fogarty, The Honourable Joseph Ghiz, The Honourable Keith Milligan, The Honourable Wayne Cheverie, The Honourable John Collins, and Denise Leclerc-Chevalier (Applicants)

v.

The Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada (Respondent)

and

Canadian Hemophilia Society, Canadian AIDS Society, HIV-T Group (Blood Transfused), Janet Conners (Infected Spouses and Children), Canadian Hemophiliacs Infected with HIV, Committee for HIV Affected and Transmitted, Association of Hemophilia Clinic Directors of Canada, Hepatitis C Survivors Society, Gignac, Sutts Group, Guy Henri-Godin and Jean-Daniel Couture, The Hepatitis C Group, The Toronto and Central Ontario Regional Hemophilia Society (Intervenors)

* EDITOR’S NOTE:

The style of cause is the result of an order of joinder of proceedings and of the amalgamation of fifteen styles of cause established, in each case, by the applicant or applicants. The Judge herein has decided to abide strictly by the designation of the parties as originally established by the parties, in the language of their choice.

Indexed as: Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (T.D.)

Trial Division, Richard J.—Toronto, March 6 and 12, 1996.

Administrative law — Judicial review — Practice — Motion under R. 1613(3), (4) for directions as to procedure for making submissions concerning Commissioner’s objection to production of material requested under R. 1612, and to require production of certified copies thereof — Commissioner, investigating blood system in Canada, issuing misconduct notices under Inquiries Act, s. 13 — Notices based on privileged submissions, public record, documents for which solicitor-client, deliberative privilege claimed — R. 1612 not requiring production of documents in party’s possession or preparation of new documents — Evidentiary material before Commissioner relevant to decision to issue notices, not notes passing between counsel — Administrative tribunals can rely on deliberative secrecy — Analysis, opinion in staff memoranda irrelevant to ascertainment of tribunal’s decision as no assumption adopted by it — Must show amounts to additional evidence — Objection to production of legal advice, analysis valid — Nothing indicating existence of new evidentiary material or list of written material on which decision to issue notice based.

This was a motion under subsections 1613(3) and (4) of the Rules for directions as to the procedure for making submissions with respect to the Commissioner’s objection to the production of certain material requested under Rule 1612 and to require production of certified copies thereof. The Court was called upon to determine the validity of the Commissioner’s objection to production of (1) all correspondence, notes, memoranda, notes of minutes of meetings or discussions between Commission counsel relating to misconduct notices and (2) a list of all other material that the Commissioner and his staff, including counsel, have reviewed that may bear upon any of the charges contained in the notices, including any position papers prepared by Commission counsel on any of the issues raised therein. The Commissioner was appointed under the Inquiries Act to review and report on Canada’s blood system. Public hearings spanned two years and the evidentiary record was voluminous. Misconduct notices were issued under Inquiries Act, section 13 indicating that the Commissioner may make findings that may amount to misconduct within that Act. The Commissioner stated that the notices were based on privileged submissions by parties, disclosure of which was no longer sought; the public record and exhibits, disclosure of which was unnecessary; and material and documents passing between the Commissioner and his counsel, in respect of which solicitor-client and adjudicative or deliberative privilege was claimed. The applicants suggested that there must be other material because the Commissioner had in November 1993 adverted to the availability of facts derived from sources other than evidence given at a public hearing. The Commissioner responded that no such material was considered in preparing the notices.

Rule 1612 allows a party to request material relevant to the application for judicial review in the possession of a federal tribunal by filing a written request with the Registry and serving the request on the federal tribunal and the other parties. This request may also be included in the originating motion. A federal tribunal served with a request under Rule 1612 must either forward the requested material to the requesting party and the Registry or advise all the parties and the Registry that it objects to the request. Where the federal tribunal objects to the request, subsections 1613(3) and (4) of the Rules provides a process for determining the validity of the objection.

Held, the motion under subsection 1613(4) of the Rules for an order that a certified copy of the required material be forwarded to the applicant should be dismissed.

Rule 1612 does not require the Commissioner to produce documents which are in a party’s possession or to prepare new documents. Further, it is the evidentiary material before the Commissioner that is relevant to the decision to issue the section 13 notices, not any notes or memoranda passing between counsel.

Administrative tribunals can rely on deliberative secrecy, although to a lesser extent than judicial tribunals. The former Rule 1402, which required the tribunal after receipt of a section 28 originating notice to send to the Registry all material as defined by subsection 1402(1) of the Rules, including all relevant papers that were in the tribunal’s possession or control, did not provide a discovery procedure, nor was it intended to authorize a fishing expedition. The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the tribunal’s reasons for decision because they cannot be assumed to have been adopted by it as its reasons. It would have to be shown that they amounted to additional evidence.

The Commissioner’s objection to the production of written material, consisting of legal advice or analysis, passing between him and his counsel was valid. However, if legal counsel had provided written material to the Commissioner containing new facts or information, i.e. evidentiary material not previously disclosed, on which the Commissioner based his decision to issue the notices, then such written material should be produced pursuant to Rule 1613 and included in the record. There was nothing in the record indicating that such was the case. Nor was there anything in the record indicating that a list of all the written material relied on by the Commissioner for the purpose of reaching the decision relating to the issuance and contents of the section 13 notices existed, and the respondent was not under any obligation to prepare new documents.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 39.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, RR. 1600 (as enacted by SOR/92-43, s. 19), 1601 (as enacted idem), 1602 (as enacted idem; SOR/94-41, s. 14), 1603 (as enacted by SOR/92-43, s. 19; SOR/94-41, s. 15), 1604 (as enacted by SOR/92-43, s. 19; SOR/94-41, s. 16), 1605 (as enacted idem), 1606 (as enacted idem), 1607 (as enacted idem), 1608 (as enacted idem), 1609 (as enacted idem), 1610 (as enacted idem), 1611 (as enacted idem), 1612 (as enacted idem), 1613 (as enacted idem), 1614 (as enacted idem; SOR/94-41, s. 17), 1615 (as enacted by SOR/92-43, s. 19), 1616 (as enacted idem), 1617 (as enacted idem), 1618 (as enacted idem), 1619 (as enacted idem), 1620 (as enacted idem).

Inquiries Act, R.S.C., 1985, c. I-11, s. 13.

CASES JUDICIALLY CONSIDERED

APPLIED:

Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (1993), 17 Admin. L.R. (2d) 16; 164 N.R. 60 (F.C.A.); Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455(C.A.); Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169; Trans Quebec& Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432(C.A.).

DISTINGUISHED:

Carey v. Ontario, [1986] 2 S.C.R. 637; (1986), 58 O.R. (2d) 352; 35 D.L.R. (4th) 161; 22 Admin. L.R. 236; 30 C.C.C. (3d) 498; 14 C.P.C. (2d) 10; 72 N.R. 81; 20 O.A.C. 81.

REFERRED TO:

Henrie v. Canada (Security Intelligence Review Committee) (1992), 88 D.L.R. (4th) 575; 5 Admin. L.R. (2d) 269; 140 N.R. 315 (F.C.A.).

MOTION under subsections 1613(3) and (4) of the Rules for directions as to the procedure for making submissions concerning the Commissioner’s objection to the production of material requested under Rule 1612, and to require production of certified copies of the requested material. Motion dismissed.

COUNSEL:

Donald J. Rennie for applicants The Attorney General of Canada et al.

Randal T. Hughes and Tracey N. Patel for applicant Bayer Inc.

No one appearing for applicant Craig Anhorn.

Earl A. Cherniak, Q.C., Maureen B. Currie and Christopher I. Morrison for applicants The Canadian Red Cross Society et al.

William Thomas McGrenere, Q.C. for applicant Armour Pharmaceutical Company.

Stephen T. Goudge, Q.C. and Monica J. E. McCauley for applicant Connaught Laboratories Limited.

Philip Spencer, Q.C. and Tim Farrell for applicant Baxter Corporation.

Michelle M. Smith for applicants the Honourable Dennis Timbrell et al.

Serge Kronström for applicants Procureur général du Quebec et al.

William G. Craik for applicants Her Majesty the Queen in Right of British Columbia et al.

Paul S. A. Lamek, Q.C. and Angus T. McKinnon for respondent the Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada.

Bonnie A. Tough for intervenor Canadian Hemophilia Society.

R. Douglas Elliott for intervenor Canadian AIDS Society.

Lori A. Stoltz for intervenor HIV-T Group (Blood Transfused).

No one appearing for intervenor Janet Conners (Infected Spouses and Children).

No one appearing for intervenor Canadian Hemophiliacs Infected with HIV.

No one appearing for intervenor Committee for HIV Affected and Transmitted (CHAT).

Mary M. Thomson for intervenor Association of Hemophilia Clinic Directors of Canada.

Douglas Elliott as Agent for intervenor Hepatitis C Survivors Society.

No one appearing for intervenor Gignac, Sutts Group.

No one appearing for intervenors Jean-Daniel Couture and Guy-Henri Godin.

No one appearing for intervenor The Hepatitis C Group.

David G. Harvey for intervenor Toronto and Central Ontario Regional Hemophilia Society.

SOLICITORS:

Deputy Attorney General of Canada for applicants the Attorney General of Canada et al.

Fraser & Beatty, Toronto, for applicant Bayer Inc.

Roebuck, Garbig, Toronto, for applicant Craig Anhorn.

Lerner & Associates, Toronto, for applicants The Canadian Red Cross Society et al.

Lawson, McGrenere, Wesley, Rose & Clemenhagen, Toronto, for applicant Armour Pharmaceutical Company.

A. N. West, Toronto, for applicant Connaught Laboratories Limited.

Blaney, McMurtry, Stapells, Friedman, Toronto, for applicant Baxter Corporation.

Ministry of the Attorney General, Toronto, for applicants the Honourable Dennis Timbrell et al.

Kronström, Desjardins, Ste-Foy, Québec for applicants Procureur général du Québec et al.

Woloshyn Mattison, Saskatoon, Saskatchewan, for applicants Her Majesty the Queen in Right of British Columbia et al.

Genest, Murray, DesBrisay, Lamek, Toronto, for respondent the Honourable Horace Krever, Commissioner of the Inquiry on the Blood System in Canada.

Blake, Cassels & Graydon, Toronto, for intervenor Canadian Hemophilia Society.

Elliott, Rodrigues, Toronto, for intervenor Canadian AIDS Society.

Goodman and Carr, Toronto, for intervenor HIV-T Group (Blood Transfused).

Buchan, Derrick & Ring, Halifax, for intervenor Janet Conners (Infected Spouses and Children).

Kapoor, Selnes, Klimm & Brown, Melfort, Saskatchewan for intervenor Canadian Hemophiliacs Infected with HIV.

Kenneth Arenson, Toronto, for intervenor Committee for HIV Affected and Transmitted (CHAT).

McCarthy Tétrault, Toronto, for intervenor Association of Hemophilia Clinic Directors of Canada.

Tinkler, Morris, Toronto, for intervenor Hepatitis C Survivors Society.

Gignac, Sutts, Windsor, for intervenor Gignac, Sutts Group.

Marchand, Magnan, Melançon, Forget, Montréal, for intervenors Jean-Daniel Couture and Guy-Henri Godin.

Pierre R. Lavigne, Ottawa, for intervenor The Hepatitis C Group.

David G. Harvey, Burlington, Ontario, for intervenor Toronto and Central Ontario Regional Hemophilia Society.

The following are the reasons for order rendered in English by

Richard J.: This is a motion under subsections 1613(3) and (4) [of the Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] to determine the validity of the objection of the respondent Commissioner to produce certain material requested by the applicants under Rule 1612 [as enacted idem].

The request originated in a letter dated February 29, 1996, and filed in the Federal Court on March 1, 1996, by counsel for the Canadian Red Cross Society. In this letter, counsel applied, pursuant to subsection 1613(3) of the Rules, for directions as to the procedure for making submissions with respect to the objection of the Commission to produce certain material requested by the Canadian Red Cross Society.

The letter reads in part as follows:

Re: Rule 1612 Production of Documents—Federal Court of Canada (Trial Division) Court file no. T-158-96

In our Originating Notice of Application my clients made a request for documents in the possession of the Commission pursuant to Federal Court Rule 1612.

On February 16, 1996 we sent a letter to Mr. Angus T. McKinnon, counsel for the respondent further clarifying our request for production of documents. We attach a copy of that letter.

On February 19, 1996, Mr. McKinnon responded with a blanket refusal to produce any of the documents which were requested. A copy of Mr. McKinnon’s response is enclosed along with our response to Mr. McKinnon’s letter of February 19, 1996.

Pursuant to Rule 1613(3) we request directions as to the procedure for making submissions with respect to this objection.

It is important that this matter be dealt with as expeditiously as possible.

As the Judge of this Court designated by the Associate Chief Justice to dispose of all motions and issue any directions required in this application for judicial review, the application was referred to me and on March 1, 1996, I issued the following directions:

DIRECTIONS

(Rule 1613)

UPON a written request received by this Court on March 1, 1996, by counsel for the Canadian Red Cross Society, for directions, pursuant to Rule 1613(3), as to the procedure for making submissions with respect to the respondent’s objection to a request for a certified copy of certain material made under Rule 1612, all as more particularly set out in a letter to counsel for the respondent dated February 16, 1996, the following directions are given as to the procedure for making submissions with respect to the objection.

1)   True copies of the written request, the written objection of the respondent and the written request for directions shall be filed and served on all parties;

2)   The hearing of this matter shall take place before this Court at the Canada Life Building, 8th floor, 330 University Avenue, in the City of Toronto, on Wednesday the 6th day of March 1996 at 10:00 o’clock in the forenoon;

3)   Any parties who wish to participate in the hearing should inform the Toronto Registry by 1:00 p.m. on March 5, 1996.[1]¹

In its originating motion dated January 19, 1996, (Court File No.: T-158-96), the Canadian Red Cross Society made the following request:

THE APPLICANTS REQUEST, PURSUANT TO RULES 1612 AND 1613, THE COMMISSIONER, THROUGH HIS COUNSEL, TO SEND A CERTIFIED COPY OF THE FOLLOWING MATERIAL THAT IS IN HIS POSSESSION TO THE APPLICANTS AND TO THE REGISTRY:

1.   The written submissions and briefs made on an ex parte basis to Commission counsel concerning what should be contained in the misconduct notices and who should receive them.

2.   All correspondence, notes, memoranda, notes of minutes of meetings or discussions between Commission counsel relating to the Notices.

3.   Such other parts of the evidence given at the Inquiry and the exhibits filed therein as are necessary for this application.

4.   A list of all other material that the Commissioner and his staff, including counsel, have reviewed that may bear upon any of the charges contained in the Notices, including any position papers prepared by Commission counsel on any of the issues raised therein.

Most, if not all, of the remaining applicants made a similar request for material. However, all of the remaining applicants supported the request of the Canadian Red Cross Society on the proceedings under Rule 1613 brought before me.

Counsel for the Canadian Red Cross Society subsequently withdrew the request for the material described in paragraphs 1 and 3 set out above and only pursued the request for material described in paragraphs 2 and 4. The remaining applicants also agreed to proceed on that basis. With respect to the withdrawal of the request for the material specified in paragraph 1 of the request, counsel for the Canadian Red Cross Society wrote to counsel for the respondent on February 29, 1996, advising as follows:

However, in view of your position on behalf of the Commissioner that these submissions were received on a privileged and confidential basis and that a public interest immunity protects their production because of their prejudicial content, my clients will not pursue their production notwithstanding their view of their relevance. Rather, you can take this letter as notice of that [sic] the circumstances surrounding the securing and use of the submissions and the privilege, confidentiality and immunity claimed in respect thereof will be used in support of the grounds upon which the judicial review application is based.

In these circumstances, I have not been called upon, on this application under Rule 1613, to determine the validity of the objection on grounds of confidentiality and privilege.

As a result, I am called upon pursuant to Rule 1613 to determine the validity of the objection of the Commissioner to disclose and produce the following documents:

1.   All correspondence, notes, memoranda, notes of minutes of meetings or discussions between Commission counsel relating to the Notices.

2.   A list of all other material that the Commissioner and his staff, including counsel, have reviewed that may bear upon any of the charges contained in the Notices, including any position papers prepared by Commission counsel on any of the issues raised therein.

In a letter dated February 19, 1996, counsel for the Commissioner responded as follows to the requests to produce documents:

This letter and the attached constitute our response to the requests to produce documents in accordance with Rule 1613 of the Federal Court Rules. You will note that we have provided our response to all of the requests in a single document bearing the title of proceedings directed in the Order of the Honourable Mr. Justice Richard dated February 2, 1996 and setting forth our response to the individual requests under the original court file numbers and parties who made the request.

The evidentiary record before the Commissioner consists of 235 volumes of transcripts of evidence and 1235 exhibits, of which 440 are composed of one and one half inch bound volumes of documents. It is clearly impractical to deliver the entire record, nor does any party appear to request same.

In respect of the confidential written submissions which many of the applicants have requested be produced, we must regretfully advise that the Commissioner is not in a position to produce these documents. Following Mr. Cherniak’s submissions to the Court on February 2, 1996 in which he stated that this client was only interested in receiving those portions of the submissions which related to his client we undertook an inquiry to determine whether all of the applicants shared this position, with a view to determining if limited production could be made with the consent of the parties who delivered the submissions. Unfortunately, it immediately became apparent that the foregoing could not be accomplished as certain of the applicants, including the Attorney General of Canada and Mr. Cherniak’s clients, required production of the full submissions. As the parties who delivered the written submissions are not prepared to waive the privileged and confidential basis upon which the submissions were delivered our client is not in a position to produce the requested documents.

In the attachment, the Commissioner objected to the production of the material now sought to be produced for the following reasons:

Request:   All correspondence, notes, memoranda, notes of minutes of meetings or discussions between Commission counsel relating to the Notices.

Response:  All documents prepared by or passing between the Commissioner and his counsel which have not been released publicly and any minute, note or memoranda recording their meetings relating to the notice are privileged.

Request:   A list of all other material that the Commissioner and his staff, including counsel, have reviewed that may bear upon any of the charges contained in the Notices, including any position papers prepared by Commission counsel on any of the issues raised therein.

Response: The documents in the possession of the Commissioner or his counsel which relate to the Notice are:

a) the transcripts of evidence adduced and copies of exhibits filed before the Commissioner, copies of which have previously been provided to the applicants’ counsel;

b) the written submissions concerning the issuance and contents of the Notice which were received by the Commission’s counsel from certain of the parties with standing before the Commissioner are not relevant to any of the issues raised on this application. To the extent to which the written submissions relate to the Notice they were received by the Commissioner’s counsel on a privileged and confidential basis and the prejudicial effect of their disclosure far outweighs their probative value; and

c) any and all documents passing between the Commissioner and his counsel and any and all documents prepared by the Commissioner or by his counsel relating to the Notice, which documents are privileged.

The events leading up to this motion can be briefly described as follows.

On October 4, 1993, the Honourable Horace Krever, a judge of the Ontario Court of Appeal, was appointed under Part I of the Inquiries Act [R.S.C., 1985, c. I-11] to be a Commissioner to review and report on the mandate, organization, management, operations, financing and regulation of all activities of the blood system in Canada, including the events surrounding the contamination of the blood system in Canada in the early 1980s, by examining, without limiting the generality of the inquiry,

—        the organization and effectiveness of past and current systems designed to supply blood and blood products in Canada;

—        the roles, views, and ideas of relevant interest groups; and

—        the structures and experiences of other countries, especially those with comparable federal systems.

The Commissioner was directed to submit a final report with recommendations on an efficient and effective blood system in Canada for the future including:

—        its managerial, financial, and legal principles as well as the medical and scientific aspects;

—        the appropriate roles and responsibilities of the provincial/territorial and federal governments, the Canadian Red Cross Society, and other relevant organizations;

—        the contractual and other relationship which should exist amongst the governments and organizations involved in the system;

—        resource implications, including current allocations;

—        powers that are appropriate to recommendations concerning responsibilities and authorities; and

—        actions required to implement these recommendations.

The Commissioner was directed to submit a final report no later than September 30, 1994. That date was extended to December 31, 1995, and again, to September 30, 1996, by order in council dated December 13, 1995.

The evidentiary record before the Commissioner is voluminous. It includes thousands of documents bound into 440 exhibit briefs. Public hearings began November 22, 1993 and ended December 21, 1995. During this period, approximately 236 days of hearings were held and 353 witnesses were called.

The Commissioner has made an interim report which was released on February 24, 1995. The Commissioner has not submitted a final report.

Under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)], an application for judicial review must be made in respect of a decision or order of a federal board, commission or other tribunal. Subsection 1602(4) [as enacted by SOR/92-43, s. 19] of the Rules provides that the notice of motion shall be in respect of a single decision, order or matter only. It is the decision by the Commissioner to issue notices under section 13 of the Inquiries Act which is sought to be reviewed.

The English version of section 13 of the Inquiries Act reads as follows:

13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.

The French version reads as follows:

13. La rédaction d’un rapport défavorable ne saurait intervenir sans qu’auparavant la personne incriminée ait été informée par un préavis suffisant de la faute qui lui est imputée et qu’elle ait eu la possibilité de se faire entendre en personne ou par le ministère d’un avocat.

The notices in issue are dated December 21, 1995, and are signed by Commission counsel. Each notice includes the following statement:

TAKE NOTICE that the Commissioner may make the following findings that may amount to misconduct within the meaning of the Inquiries Act.

Notices sent to those counsel who represented both named individuals and parties provided:

AND TAKE NOTICE that you are entitled to be heard in person or through counsel to address these potential findings. You may prefer to do so through your final submissions, and, if that is so, no notice need be given to the Commissioner’s office of your preference to be heard in that manner. Final written submissions must be received by the Commissioner’s office no later than noon on Thursday, February 8, 1996. If you wish to be heard in any other manner, you must notify the Commissioner’s office of that wish no later than noon on Wednesday, January 10, 1996.

Notices sent to those persons or corporations without standing provided:

You are entitled to be heard in person or through counsel to address these potential findings. If you wish to be heard you must notify the Commissioner’s office of that wish no later than noon on Wednesday, January 10, 1996.

In the statement of fact and law of the Canadian Red Cross Society, counsel describes the events directly related to the issuance of the notices.

On October 26, 1995, Commission counsel wrote to all parties with standing before the Inquiry asking the parties to set out in writing “all findings of misconduct which you intend to urge upon the Commission” by 5:00 p.m., November 10, 1995. The CRCS refused to participate in this procedure and objected to it on the ground, inter alia, that “[r]equesting those parties … to submit their proposed findings of misconduct appears to be a recognition and formalization by you that this inquiry is an adversarial one rather than the impartial examination that is contemplated by the order-in-council” that created the Inquiry. Commission counsel refused to accept this objection.

On November 24, 1995, the Commissioner, during the course of the public hearings, indicated that:

(a)  he was aware of the process that Commission counsel had initiated with respect to the proposed notices;

(b)  Commission counsel had received some submissions on the contents of the notices from some of the parties with standing;

(c)  he did not intend to read the submissions of the parties who responded to Commission counsel’s invitation in the October 26 memorandum;

(d)  Commission counsel would review the notices; and

(e)  the Commissioner would issue notices based upon that review.

The applicants claim they relied on the assurances of the Commissioner, given at the outset of the hearings and during the course of the hearings, that no one was on trial, that the inquiry was not concerned with criminal or civil liability and that the inquiry was not an adversary proceeding in which a party makes allegations against another party. They also claim they relied on the Commissioner’s statement that it was his inquiry, and not his counsel’s inquiry, and that he had no intention of making findings of liability or fault whether civil or criminal.

The applications for judicial review call into question the procedure of the Commission that preceded the notices and the timing of the notices. The applicants are concerned about unilaterally acquired information that the Commission has and may use to support the serious allegations contained in the notices. Counsel for the Commissioner responds that there are no such documents.

In its originating motion, the Canadian Red Cross Society requests the following relief:

1.   A declaration that the Honourable Mr. Justice Horace Krever, Commissioner of the Inquiry on the Blood System in Canada (hereinafter the “Commissioner”), acted without jurisdiction, or in the alternative, beyond his jurisdiction in issuing notices dated December 21, 1995 to the applicants, pursuant to the Inquiries Act, R.S.C. 1985, c. I-11, the Public Inquiries Act, R.S.O. 1990, c. P.41 and the Public Inquiries Act, R.S.P.E.I. 1988, Cap. P-31 (hereinafter the “Notices”).

2.   A declaration that the Commissioner acted in violation of the principles of fundamental justice as mandated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights in issuing the Notices.

3.   A declaration that the Commissioner acted contrary to the principles of natural justice and procedural fairness in issuing the Notices.

4.   A declaration that the Commissioner erred in law in issuing the Notices.

5.   An order quashing the Notices.

6.   An order prohibiting the Commissioner from making any findings of misconduct against any of the applicants in his final report.

7.   Should the relief in paragraph 6 not be granted, an order prohibiting the Commissioner from making any findings of misconduct against any of the applicants in his final report which amount to and/or provide the factual foundation for findings of criminal and/or civil liability against any of the applicants.

8.   An order that the Commissioner not seek any assistance in the preparation and drafting of his final report by all Commission counsel who participated in the public hearings and/or in the preparation of the Notices, including but not limited to, Marlys Edwardh, Delmar Doucette, Melvyn Green, Leslie Paine, Louis Sokolov and Frederic Palardy.[2]

Counsel for the Canadian Red Cross Society emphasized that there is no allegation of bias on the part of the tribunal, i.e., the Commissioner. It is the conduct of Commission counsel that has been put in issue.

Federal Court Rules 1612 and 1613 read as follows:

Rule 1612. (1) A party who wishes to rely on material that is in the possession of the federal board, commission or other tribunal and not in the party’s possession shall file in the Registry and serve on the federal board, commission or other tribunal a written request for a certified copy of the material.

(2) An applicant’s request may be included in the notice of motion.

(3) A copy of the request shall be served on the other parties.

(4) The request shall specify the particular material in the possession of the federal board, commission or other tribunal and the material must be relevant to the application for judicial review.

Rule 1613. (1) Subject to paragraphs (2) to (4), a federal board, commission or other tribunal that is served with a request under Rule 1612 shall, without delay, forward a certified copy of the material requested to the party making the request and to the Registry.

(2) Where the federal board, commission or other tribunal or a party objects to the request, the federal board, commission or other tribunal or the party, as the case may be, shall, in writing, inform all parties and the Registry of the reasons for the objection.

(3) A judge may give directions to the parties and the federal board, commission or other tribunal as to the procedure for making submissions with respect to the objection.

(4) A judge may, after hearing the submissions, order that a certified copy of all or part of the material requested be forwarded to the party making the request and to the Registry.

These Rules came into effect on February 1, 1992, along with the judicial review procedure established by section 18.1 of the Federal Court Act.

Mr. Justice Décary of the Federal Court of Appeal explained the meaning of these two Rules in Quebec Ports Terminals Inc. v. Canada (Labour Relations Board):[3]

Because these are new Rules, it will be useful to take some time to examine their real meaning in light of the actual terms used and their context.

The obligation which is imposed on the tribunal by R. 1612 and 1613 is “without delay” to “provide” or “forward” a “certified copy” of “material” which is “in its possession” and which is “specified”. In my view, this presumes that it is material which already exists at the time when the request to obtain the material is made, which the tribunal used in its hearing, deliberations or decision, which is part of its record and of which it is in a position to provide a certified copy. I simply cannot see anything in the words used that obliges the tribunal to busy itself preparing something it does not already have. The fact that the adverse party is not entitled to receive a copy of the material in question, even for the purpose of preparing an objection to it being obtained, also means that it can be presumed that it is aware of the existence and nature of the material in question, which it knows to be in the possession of the tribunal and which it may have in its own possession.

Moreover, R. 1612 and 1613 must be read as an extension of R. 1606 to 1610, which relate to the preparation of the application record. Rule 1606(2) provides that the record shall contain, inter alia, a copy of each supporting affidavit “including its documentary exhibits,” a transcript of any cross-examination on the affidavit, the transcript of evidence and a description “of any physical exhibits to be used by the applicant at the hearing.” Rule 1610 permits the court, where it considers that the records are inadequate, to order “that other material be produced and filed.” It therefore seems to me that when R. 1612 permits a party to obtain “material” in the possession of a federal board, commission or other tribunal, it does so in order to permit a party which is preparing its record under R. 1606 to include in that record material in the nature of the material listed in R. 1606, which is in the possession of the tribunal, which that party should have in its possession and which, for some reason, it has not had, does not yet have or no longer has in its possession. Thus it would be exceptional to apply under R. 1612, and this explains the unusual situation in which the adverse party finds itself: the fact that that party is at no time entitled to require that a certified copy of the material be forwarded to it too is not because the intention is to hide it from it—which would be unthinkable—but is simply because it is considered pointless to compel the tribunal to provide it with a copy which it likely has in its possession and which it will in any event find in the applicant’s record if the applicant decides to reproduce it in its record.

In short, R. 1612 and 1613 do not permit a party to ask the tribunal to prepare new documents or to do research in existing documents, any more than they permit a party to obtain existing documents from the tribunal which are in no way related to the impugned decision.

Mr. Justice Pratte of the Federal Court of Appeal also commented on the scope of the Rules as follows:[4]

Under Rule 1612, a party to an application for judicial review who wishes to rely on material in the possession of the Tribunal that rendered the decision to be reviewed, may make a request for a certified copy of that material. Rule 1612(4) provides that:

Rule 1612. …

(4) The request shall specify the particular material in the possession of the federal board, commission or other tribunal and the material must be relevant to the application for judicial review.

If the material is not relevant, the Tribunal is not obliged to produce it.

A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.

On the return of the motion before me in Toronto on March 6, 1996, counsel for the Canadian Red Cross Society relied heavily on the decision of the Supreme Court of Canada in Carey v. Ontario[5] and urged that this Court adopt and follow the procedure for disclosure of Cabinet documents set out by Mr. Justice La Forest in that decision commencing at page 670. The Carey case deals with Crown privilege and the production of Cabinet documents necessary for civil litigation. Here, we are dealing with an application for judicial review taken under section 18.1 of the Federal Court Act.[6] Rules 1612 and 1613 specifically deal with the method for obtaining documents in the possession of a federal board, commission or other tribunal. In my opinion, it is these Rules which are applicable in the instant case.

Sections 37 to 39 of the Canada Evidence Act [R.S.C., 1985, c. C-5] deal with state privilege and the manner of dealing with objections to disclosure of government documents. No one before me has relied on the provisions of the Canada Evidence Act.[7]

Rule 1612 allows a party to request relevant documents and other material in the possession of a federal tribunal and relevant to the application for judicial review by filing a written request for the material sought with the Federal Court Registry and then serving the request on the federal tribunal and the other parties. This request may also be included in the originating motion. Once a federal tribunal is served with a request under Rule 1612 to produce materials, it must either forward the requested material to the requesting party and the Federal Court Registry or advise all the parties and the Registry that it objects to the request. Where the federal tribunal objects to the request, subsections 1613(3) and (4) provides a process for determining the validity of the objection.

Counsel for the Canadian Red Cross Society stated that he was not seeking the production of any notes or memoranda written or prepared by the Commissioner himself. He asserted that he was not seeking to invade the thought process of the Commissioner.

The Supreme Court of Canada[8] has recognized that administrative tribunals enjoy a limited privilege of deliberative secrecy. As stated by Mr. Justice Gonthier:

In the case of administrative tribunals, the difficulty of distinguishing between facts relating to an aspect of the deliberations which can be entered in evidence and those which cannot is quite understandable. The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice.

He continued:[9]

Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.

The Federal Court of Appeal[10] considered the requirement of a tribunal to forward material in a case to the Registry under former Rule 1402. The issue was whether staff reports prepared to assist the tribunal should be included in the material. Thurlow C.J. stated that the Rule does not provide a discovery procedure, nor is it intended to authorize a fishing expedition. He rejected the general proposition that staff reports prepared for the assistance of members of a tribunal must be included in the material on which the tribunal’s decision is to be reviewed. He added that the fact that the reports were prepared and submitted on a confidential basis would not afford them protection. The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the tribunal’s reasons for decision because they cannot be assumed to have been adopted by it as its reasons. It would have to be shown that they amounted to additional evidence.

Counsel for the respondent claims that there can be no findings of misconduct that are not adverted to in the section 13 notices and to which the parties have not had an opportunity to respond. A finding of misconduct cannot be grounded on anything other than the notices which themselves are based on nothing other than those items identified by the Commissioner, which exclude any private or non-public information. Counsel for the applicants suggest that there must be other material because the Commissioner had, in November 1993, adverted to the availability of facts derived from sources other than evidence given at a public hearing, such as scientific literature. However, the Commissioner has responded in these proceedings that no such material has been considered in preparing the section 13 notices. The Commissioner has stated, through counsel, that he relied on the following material only:

1) The confidential, and, he claims, privileged submissions that were received from parties in response to his invitation as to the findings which he should make in his report. Although disclosure of those submissions was initially requested, it is no longer being pursued;

2) The public record and exhibits. There is no need to produce them since they are available to all parties; and

3) Material and documents prepared by the Commissioner and his counsel and passing between them in respect of which privilege is claimed not only by solicitor-client privilege but in the wider sense of adjudicative or deliberative privilege, much the same way as a judge’s thought process and communications with his or her law clerk are protected.

Counsel for the respondent submits that what is being requested is the right to sit in on every conference between the Commissioner and his counsel and to read every piece of correspondence between them merely on the basis that there is an allegation of unfairness. He added: “It would be charitable to characterize that as a fishing expedition".

With respect to the respondent’s claim that the documents are privileged, counsel for the Canadian Red Cross Society submitted as follows in his memorandum and at the hearing:

(a)  there is no case-by-case privilege that attaches to these documents;

(b)  adjudicative privilege does not apply in the present circumstances;

(c)  there is no public interest immunity that attaches to these documents;

(d)  Commission counsel, in preparing or forwarding these documents to the Commissioner, were not acting as legal advisors, with the consequence that solicitor and client privilege is not attached to these documents;

(e)  the Commissioner has waived any privilege that may have existed between himself and his counsel; and

(f)   any document which may tend to indicate bias on the part of a federal board, commission or tribunal must be produced.

In his memorandum, and again on the return of the motion, counsel for the Canadian Red Cross Society stressed:

In the present case, the applicants are not seeking to compel the Commissioner to disclose how or why he arrived at a particular decision and are not seeking material created by the Commissioner in the course of his deliberations. Rather, the applicants are seeking disclosure of the material and submissions by Commission counsel put before the Commissioner upon which he made his decision to issue the notices.

The authorities make it clear that Rule 1612 does not require the Commissioner to produce documents which are in a party’s possession or to prepare new documents.[11] Further, it is the evidentiary material before the Commissioner that is relevant to his decision to issue the section 13 notices; not any notes or memoranda passing between counsel.

The Supreme Court of Canada has recognized that administrative tribunals can rely on deliberative secrecy, albeit to a lesser extent than judicial tribunals.[12] The Federal Court of Appeal has ruled that the former Rule 1402 does not provide a discovery procedure, nor is it intended to authorize a fishing expedition. The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the tribunal’s reasons for decision because they cannot be assumed to have been adopted by it as its reasons. It would have to be shown that they amounted to additional evidence.[13]

In the result, I have reached the conclusion that the Commissioner’s objection to the production of written material passing between the Commissioner and his counsel which consists of legal advice or analysis is valid. However, if legal counsel has provided written material to the Commissioner containing new facts or information, that is to say, evidentiary material not previously disclosed, on which the Commissioner based his decision to issue the notices, then such written material should properly be produced pursuant to Rule 1613 and included in the record. There is nothing in the record before me indicating that such is the case.

The applicants have also sought from the Commissioner a list of all the written material relied on him for the purpose of reaching the decision relating to the issuance and the contents of the section 13 notices. Again, there is nothing on the record before to indicate that such a list exists and the respondent is not under any obligation to prepare new documents.

For the above reasons, the applicants’ motion under subsection 1613(4) of the Rules is dismissed.

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