Date: 20010716
Docket: T-483-01
Citation: 2001 FCT 803
Vancouver, British Columbia, Monday, the 16th day of July, 2001
BETWEEN:
VICTOR UNGER
Applicant
- and -
TELUS ENTERPRISE SOLUTIONS INC.
FORMERLY KNOWN AS
ISM INFORMATION SYSTEMS
MANAGEMENT (B.C.) CORPORATION
Respondent
REASONS FOR ORDER
HARGRAVE, P.
[1] The Applicant's motion is for production of file material allegedly withheld by the Respondent and thus not forming a part of the decision to be reviewed, that of the Canadian Human Rights Commission. This allegation is based upon a conversation which the Plaintiff says that he had with a Canadian Human Rights Commission investigator, however this is not set out in affidavit material, but rather in the Applicant's written representations:
1. Marke Earle from the Canadian Human Rights Commission, (an investigator working on my Human Rights Complaint) informed me in a telephone conversation I had with him that some information requested from Telus during the investigation of my Human Rights Complaint, file (W47865) was not provided.
4. Some information was provided but NONE of the A) My personal File B) Emails C) Minutes of meetings D) Notes All having to do with my Record of Employment or Termination.
Unfortunately there is no reference to this alleged shortcoming in the Canadian Human Rights Commission's report.
[2] Initially the Applicant relied upon Rule 233, which provides for the production of documents from a non-party, that is from Telus Enterprise Solutions Inc., or its predecessor, for at that time the only Respondent was the Canadian Human Rights Commission. Leaving aside that the present Respondent, Telus Enterprises Solutions Inc., to which this motion is directed, is now a party, Rule 233 applies only to actions, not to applications for judicial review such as the present. Thus it is Rule 317 which is now at issue.
[3] Rule 317 requires production of documents in the possession of the tribunal whose decision is to be reviewed. Indeed, the Rule is to ensure production of documents which were before the decision maker when the decision was made: the Rule is not intended to provide discovery of all documents that may have been in the decision maker's possession: see for example 1185740 Ontario Ltd. v. MNR (1999) 247 N.R. 287 (F.C.A.) at pages 288 and 289 and Canada (A.G.) v. Canada (Information Commissioner) [1998] 1 F.C. 337 at pages 355 and 356.
[4] Also dispositive of the present motion is Hui v. MCI, an unreported decision of 28 February 2000 in file T-1338-99:
[4] Rule 317 permits the request of a document from a tribunal, but not from a respondent. Here I would refer to the concept that there is a distinction between a respondent in an application for judicial review and a tribunal whose decision is being questioned. This was a distinction touched upon by Prothonotary Morneau in Desrochers v. Attorney General of Canada, an unreported 13 November 1998 decision in action T-1567-98. Mr. Morneau went on to point out that Rule 317 provides access to documents which a plaintiff may not have and which are in the possession of the tribunal and not documents which are held by , in that case, the Attorney General of Canada.
[5] Further, Rule 317 is not intended to permit a party to repair a failure to present all relevant evidence that might have been or should have been produced to the tribunal: see for example Canada Post v. PSAC (1999), 164 F.T.R. 288, a brief decision in which Mr. Justice Gibson refers to an earlier unreported decision of Mr. Justice Denault in Northwest Territories v. Public Services Alliance of Canada, an unreported decision in action T-2411-98.
[5] In the present instance Mr. Unger's material does not constitute evidence of the non-disclosure of a relevant document by the predecessor to Telus Enterprises Solutions Inc., to the Canadian Human Rights Commission. Rather, as I have noted, the allegation of non-disclosure is made in written argument. However, if there is evidence of non-disclosure that could result in an adverse inference as against the Respondent and here I have in mind Parveen v. Canada (1999) 168 F.T.R. 103, a decision of Madam Justice Reed. In that instance the Respondent's Record was incomplete, the file having been stripped in compliance with a thin file policy. The incompleteness of the Record was explicitly demonstrable. The judge noted that the Respondent had control of the material and that not only would this be held against the Respondent, but might, in some circumstances, be grounds for setting aside the decision under review:
I think it is sufficient to note that the respondent controls the record that is put before the court. Thus, any disputes that arise as a result of deficiencies in the record should, in general, be interpreted against the respondent rather than in her favour. Indeed, I think an incomplete record alone could be grounds, in some circumstances for setting aside a decision under review. (page 105)
In the Parveen case the judicial review resulted in the decision being set aside and referred back for reconsidered by the original decision maker.
[6] In the present instance it might well be that the Respondent failed to produce some relevant material to the Canadian Human Rights Commission, but that is not, at this stage, proven. Should the failure to produce, at some later date, prove to be the case, it will be for the trial judge hearing the review of this matter to draw an appropriate inference in arriving at a appropriate decision. Thus the present motion is dismissed. Costs shall be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
July 16, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-483-01
STYLE OF CAUSE:Victor Unger v. Telus Enterprise Solutions Inc.
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF HARGRAVE P.
DATED: July 16, 2001
WRITTEN SUBMISSIONS BY:
Victor Unger FOR PLAINTIFF
Judith A. Macfarlane FOR DEFENDANT
SOLICITORS OF RECORD:
Victor Unger FOR PLAINTIFF
Farris, Vaughan, Wills & Murphy FOR DEFENDANT
Vancouver, B.C.