Date: 19990215
Docket: T-2411-98
Ottawa, Ontario, this 15th day of February, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
BETWEEN:
GOVERNMENT OF THE NORTHWEST TERRITORIES,
Applicant,
- and -
PUBLIC SERVICE ALLIANCE OF CANADA and the
CANADIAN HUMAN RIGHTS COMMISSION,
Respondents.
REASONS FOR ORDER and ORDER
[1 The applicant, in its application for judicial review, requests from the Tribunal whose decision is under attack the production of the following material pursuant to Rule 317 of the Federal Court Rules, 1998:
| (1) all letters, memoranda, notes or other documents in the Tribunal"s possession, other than the members" personal notes and documents which are in evidence before the Tribunal, including, without limiting the generality of the foregoing, copies of the Tribunal"s correspondence with the Department of Justice and with the Commission pertaining to the administrative relations between the Commission and the Tribunal, including the Tribunal"s correspondence with the Commission"s legal department and documents relating to the latter"s role in the Tribunal"s affairs; |
| (2) all correspondence or other documents, other than the members" personal notes and documents in evidence before the Tribunal, pertaining to amendments to the Canadian Human Rights Act concerning the role or structure of the Tribunal, including those in the President"s or Chairperson"s files on such matters; |
| (3) all letters, memoranda, notes or other documents in the Tribunal"s possession, other than the members" personal notes and documents in evidence before the Tribunal, touching on the issuance, revocation or binding nature of any Guidelines issued by the Commission under the Canadian Human Rights Act , including any representations made by the Tribunal or any person on behalf of the Tribunal concerning such Guidelines. |
[2 The respondent"s object to the production of such documents mainly on the grounds that, if relevant and not privileged, they could have been requested and produced into evidence before the Tribunal, and that they did not form part of the record before the Tribunal.
[3 The main issue that was raised by the applicant before the Tribunal was the institutional independence or impartiality of this Canadian Human Rights Tribunal that had been appointed to inquire into a complaint filed by the Public Service Alliance of Canada in 1989.
[4 After three days of hearing before the Tribunal during which the applicant was provided with the opportunity to call the Registry of the Tribunal as a witness, the Tribunal ruled that it was an institutionally independent and impartial Tribunal.
[5 While it is clear that the applicant was well aware of the nature of the evidence required to meet its burden before the Tribunal, and that it had every opportunity to gather and present such evidence, the applicant failed or neglected to produce in evidence the documents now requested.
[6] It is trite law that fresh or new evidence that was not before the original decision-maker is not permitted in judicial review proceedings, and Rule 317 is not intended to permit a party to repair its failure to present all of the relevant evidence that might or should have been produced before the decision-maker.
[7] In the instance, the Court has not been persuaded that the requested documents are relevant to the grounds for judicial review specified in the Application. In fact, the Court is not even persuaded that the requested documents exist. In my view, that request by the applicant, in its application, amounts to a fishing expedition. That, the Court cannot authorize.
[8] Accordingly, the objections pursuant to Rule 318(2) of the Federal Court Rules, 1998 , by the Respondents to the delivery to the Court and to the applicant of the documents requested by the applicant in its application for judicial review are sustained. No costs.
Judge