Date: 20011025
Docket: T-1179-01
Neutral citation: 2001 FCT 1164
Toronto, Ontario, Thursday, the 25th day of October 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
THE ECOLOGY ACTION CENTRE SOCIETY
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
GILES A.S.P.
[1] UPON motion in writing, dated the 17th day of August, 2001 on behalf of the Applicant, for an Order:
(1) That this proceeding be managed as a specially managed proceeding pursuant to Rule 384;
(2) Extending the time within which the Applicant may serve and file its Affidavits and documentary exhibits pursuant to Rule 8 and 306;
(3) Requiring that the Respondent forward to the Registry materials requested by the Applicant to which the Respondent objected, pursuant to Rule 318. In the alternative, directions as to the procedure for making such further submissions as the Court may require; and
(4) Such further and other order as this Honourable Court deems just.
[2] The motion before me seeks:
(1) An Order that the case be specially managed;
(2) An extension of time to file affidavits which it is alleged cannot be completed until the documents requested have been obtained;
(3) The production of certain documents as follows:
(a) The record of all documents and other materials considered by the Regional Director-General before issuing the Variation Order;
(b) All reports, documents and scientific material in the possession of, or presented to, the Regional Director-General regarding the impacts of Dragger gear on fish habitat or the ocean floor;
(c) All correspondence to the Regional Director General or the Minister regarding opening Georges Bank to Draggers, or the impacts Dragger gear has on fish habitat; and
(d) Any audiovisual material, including photographs and videotapes, documenting the operation of dragger boats, including footage gathered during DFO stock assessments conducted by vessels using dragger gear.
[3] It does appear that this proceeding may be one involving more than the usual number of interlocutory motions and thus preliminaries may take more than the time then is usually allowed for applications. I note also that the Respondent also requests special management. I will therefore order special management.
[4] I am satisfied that time is required to file affidavits of witnesses who were not available in the summer months. As will appear later in these reasons I am not satisfied that any of the materials requested other than those which were before the decision maker when he made is decision should be produced. Therefore, the time for affidavits will only be until the 14th day after the date of this Order or the production of any documents or attachments to documents which were before the decision maker.
[5] With regard to the request for materials under Rule 317, I note that the Respondent objects to paragraphs in the supporting affidavit where allegations or argument rather than facts are set out. It is requested that these paragraphs be struck. I do not strike paragraphs from affidavits because to do so alters sworn evidence. I strike the whole affidavit with leave to refile bowdlerized. I am not anxious to delay these proceedings further in order to improve draftsmanship. I note that all the allegations and argumentative statements would have become factual if the statements had been introduced by a phrase such as "it is alleged by the applicant" and I intend to so consider them.
[6] The leading case in the interpretation of Rule 317 is Canada v. Pathak [1995] 2 F.C. 455 (F.C.A.). From that case decided, on the former Rule 612, I deduce that the rules do not provide far reaching discovery from which a party can serendipitously find a case. The party must know with some precision what he wants when he asks for it. General requests are not contemplated. The rule would appear to permit a request for what is relevant. Relevance is determined from the Notice of Application and affidavits filed if any. It is to be remembered that the proceeding is an Application for Judicial Review of the decision of a tribunal. What is relevant is what was before the decision maker when he was reaching his decision. That is not quite the same as what was considered or taken into account by him. In my view what is included is everything that was put before him for the purposes of the decision making process. It does not include everything dealing with the subject which may have crossed his desk at a prior time. It certainly does not include everything in his department or area of responsibility.
[7] If a document with attachments was put before him, the document and the attachments must be produced even if he did not read or view all of the attachments. It is not sufficient to file a document and leave off the attachments because they are voluminous.
[8] I will therefore order the production under Rules 317 and 318 of all documents and other materials before the Regional Director General when considering and making the Variation Order.
[9] To the extent they would not have to be produced by an order in the above terms. Materials in (b) (c) and (d) do not have to be produced.
[10] There is mention of documents containing commercially sensitive information. Such information is frequently protected by Protective Orders of the Court under Rule 151. I intend to condition my Order for production to take into account the possible need for a Protective Order.
ORDER
1. It is ordered that this proceeding should proceed as a specially managed proceeding.
2. The time for filing the Applicant's affidavits is extended to the 14th day after,
(i) the date of this Order,
(ii) the date of the production of any material ordered produced by this Order, or
(iii) the date of the final disposition of any motion for a Confidentiality Order sent down within the 14 days after the date of this Order,
whichever shall last occur.
3. The Respondent shall produce in accordance with Rule 318 copies of the originals of all materials before the Regional Director-General when considering and making the impugned Variation Order. These materials shall be produced within 10 days of the date of this Order.
4. The time for serving and filing the Respondent's affidavits is extended to the 35th day after the filing of the Applicant's final affidavit. The Applicant shall indicate when serving such affidavit that it is the final affidavit.
5. All other times shall be measured from the date for filing the Respondent's affidavits in accordance with the rules.
6. The motion is otherwise dismissed.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
October 25, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1179-01
STYLE OF CAUSE: THE ECOLOGY ACTION CENTRE SOCIETY
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
CONSIDERED AT TORONTO, PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES 1998.
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: THURSDAY, OCTOBER 25, 2001
WRITTEN SUBMISSIONS BY: Robert Wright, and
Raymond MacCallum, and
Margot Venton
For the Applicant
Ginette Mazerolle
For the Respondent
SOLICITORS OF RECORD: Sierra Legal Defence Fund
30 St. Patrick Street
Suite 900
Toronto, Ontario
M5T 3A3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011025
Docket: T-1179-01
Between:
THE ECOLOGY ACTION CENTRE
SOCIETY
Applicant
-and-
THE ATTORNEY GENERAL OF
CANADA
Respondent
REASONS FOR ORDER
AND ORDER