Gagliano v. Gomery et al., 2006 FC 720

• Judge: Teitelbaum, J.
• Court: Federal Court (Canada)
• Case Date: June 09, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 720;(2006), 293 F.T.R. 108 (FC)

Gagliano v. Gomery (2006), 293 F.T.R. 108 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] F.T.R. TBEd. JN.045

The Honourable Alfonso Gagliano (applicant) v. The Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, The Attorney General of Canada (respondents)

The Right Honourable Jean Chrétien (applicant) v. The Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, The Attorney General of Canada (respondents)

Mr. Jean Pelletier (applicant) v. The Honourable John H. Gomery, in his quality as Ex-Commissioner of the Commission of Inquiry into the Sponsorship Program and Advertising Activities, The Attorney General of Canada (respondents)

(T-2086-05; T-2118-05; T-2121-05; 2006 FC 720)

Indexed As: Gagliano v. Gomery et al.

Federal Court

Teitelbaum, J.

June 9, 2006.

Summary:

A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities. Three interested individuals applied separately for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase). In this context, each individual requested various materials from the Commission under rule 317 of the Federal Courts Rules (i.e., a request for material in possession of a tribunal). The Commission objected to the production of certain materials, claiming that they were not relevant. The interested individuals brought motions under rule 318 for orders that the Commission provide certified copies of the material requested. The motions were heard together.

The Federal Court ruled on what material had to be transmitted to the parties.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - Three interested individuals applied for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - In this context, each individual requested various materials from the Commission under rule 317 of the Federal Courts Rules - The Commission objected to the production of certain materials, claiming that they were not relevant - The interested individuals moved for orders under rule 318 that the Commission provide certified copies of the material requested, including transmission of a copy of a list of subjects that were to be examined by the Commission during its consultations - The list was allegedly posted on the Commission's website but was later removed from the site - The Federal Court rejected this request where the individuals did not adequately explain to the court the relevance of these materials - The court stated that the assertion that the web materials "may be" relevant was pure speculation - See paragraphs 53 to 54.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - A Commission of Inquiry was established to inquire into the federal Sponsorship Program and Advertising Activities - Three interested individuals applied for judicial review to quash the Commission's Phase I Report (i.e., the fact finding phase) - In this context, each individual requested various materials from the Commission under Federal Courts rule 317, including documents presented at the Commission's roundtables, a summary of discussions held during the roundtables, and copies of e-mails solicited in response to the Commissioner's Invitation to Canadians (Phase II) - The Commission objected to the production of certain of these materials, claiming that they were not relevant - The interested individuals moved for orders under rule 318 that the Commission provide certified copies of the material requested, including materials from Phase II of the inquiry (i.e., they were concerned that elements from Phase II consultations might have influenced the Commissioner and made their way back into the Phase I decision) - The Federal Court noted that a statement by the Commissioner in the Phase I Report that the Report was written solely on the basis of the evidence in the public record, created a strong presumption that he only considered material that could be found in the public record - Absent clear and convincing evidence to the contrary, that presumption would hold - Here the individuals did not provide clear and convincing evidence to rebut the presumption that the Commissioner did not consider Phase II materials in writing his Phase I Report - Therefore the Phase II materials were not relevant and properly excluded from disclosure under rule 317 - See paragraphs 55 to 72.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - A Commission of Inquiry was established to inquire into the federal Sponsorship Program and Advertising Activities - Three interested individuals applied for judicial review to quash the Commission's Phase I Report (i.e., the fact finding phase) - In this context, each individual requested various materials from the Commission under Federal Courts rule 317 - The Commission objected to the production of certain of these materials, claiming that they were not relevant - The interested individuals moved for orders under rule 318 that the Commission provide certified copies of the material requested, including e-mails received by the Commission during Phase I - The individuals alleged that the e-mails supported their allegations of reasonable apprehension of bias on the part of the Commissioner and of breaches of procedural fairness - The Federal Court held that unsolicited e-mails received between certain dates during Phase I were relevant for the purposes of rule 317 and had to be transmitted to the parties - The court found that the Commissioner was aware of the e-mails - The court noted that the issue when considering relevance under rule 317 was not whether the materials were given any weight or considered by the Commissioner, but rather whether they were before him - Here the Commissioner was at least aware of the e-mails - While the Commissioner may have decided to exclude certain materials when writing the Phase I Report, if the materials were before him and not received as part of Phase II, then the applicants were entitled to them - See paragraphs 73 to 83.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - A Commission of Inquiry, headed by Commissioner Gomery was established to inquire into the federal Sponsorship Program and Advertising Activities - Three interested individuals applied for judicial review to quash the Commission's Phase I Report (i.e., the fact finding phase) - In this context, each individual requested various materials from the Commission under Federal Courts rule 317 - The Commission objected to the production of certain of these materials, claiming that they were not relevant - The interested individuals moved for orders under rule 318 that the Commission provide certified copies of the material requested, including materials related to François Perreault, the Commission's Press Secretary, because Perreault wrote a book entitled "Inside Gomery", and the preface to the book was written by Gomery - The Federal Court held that the book "Inside Gomery" was admissible and various materials related to the mandate of the Commission's Press Secretary were to be transmitted to the parties - The court stated that those materials fell within an exception to the rule that only materials before the Commissioner in making his decision were relevant - The court noted that at this stage those materials appeared to be relevant to the individuals' claims of a reasonable apprehension of bias and breaches of procedural fairness - Whether or not those claims would succeed was a matter for the applications judge - See paragraphs 84 to 87 and 90.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - Rule 317 of the Federal Courts Rules provided that "a party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested" - The Federal Court stated that according to Pathak (FCA 1995) and subsequent jurisprudence, "documents are relevant for the purposes of rule 317 if they may affect the decision that the reviewing court will make. The relevance of requested materials is determined by having regard to the notice of application, the grounds of review invoked by the applicant, and the nature of judicial review. It is trite law that in general only materials that were available to the decision-maker at the time of rendering a decision are considered relevant for the purposes of Rule 317. However, the jurisprudence also carves out exceptions to this rule" - For example an exception existed where it was alleged that the federal board breached procedural fairness or committed jurisdictional error - The court noted, however that the court was not required to provide the applicants with the requested materials merely because they gave rise to issues of procedural fairness - The court pointed out that rule 318(4) stated that the court "may" order that "all or part of the material requested be forwarded to the Registry" - See paragraphs 48 to 52.

Administrative Law - Topic 3213

Judicial review - General - Material required to be produced on review - Rule 318(4) of the Federal Courts Rules provided that when dealing with an objection to disclosure by a tribunal, "the Court may , after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry" - The Federal Court stated that rule 318(4) was permissive, but left the court with full discretion over whether or not to order the transmission of requested materials - See paragraph 51.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - A Commission of Inquiry, headed by Commissioner Gomery, was established to inquire into the federal Sponsorship Program and Advertising Activities - Three interested individuals applied separately for judicial review to quash the Phase I Report of the Commission (i.e., the fact finding phase) - In this context, each individual requested various materials from the Commission under rule 317 of the Federal Courts Rules (i.e., a request for material in possession of a tribunal) - The Commission objected to the production of certain materials, claiming that they were not relevant - The interested individuals brought motions under rule 318 for orders that the Commission provide certified copies of the material requested - The motions were heard together - The Federal Court ruled on what material had to be transmitted to the parties - The court discussed disclosure in the context of rules 317 and 318 - See paragraphs 48 to 91.

Statutes - Topic 4985

Operation and effect - Enabling Acts - Power coupled with duty - Permissive power - "May" - General - [See fifth Administrative Law - Topic 3213 ].

Cases Noticed:

Pathak v. Canadian Human Rights Commission et al., [1995] 2 F.C. 455; 180 N.R. 152 (F.C.A.), refd to. [para. 6].

Deh Cho First Nations et al. v. Canada (Minister of the Environment) et al., [2005] F.T.R. Uned. 233 (T.D.), refd to. [para. 7].

Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) et al. (1997), 130 F.T.R. 206 (T.D.), refd to. [para. 7].

Telus Communications Inc. v. Canada (Attorney General) (2004), 329 N.R. 96 (F.C.A.), refd to. [para. 7].

Canadian Broadcasting Corp. v. Paul, [1999] 2 F.C. 3; 158 F.T.R. 161 (T.D.), varied (2001), 274 N.R. 47; 2001 FCA 93, refd to. [para. 19].

Lindo v. Royal Bank of Canada (1999), 162 F.T.R. 142 (T.D.), refd to. [para. 19].

Cooke v. Correctional Services of Canada (2005), 274 F.T.R. 44; 2005 FC 712, refd to. [para. 20].

Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321; 151 D.L.R.(4th) 1, refd to. [para. 24].

Morneault v. Canada (Attorney General), [2001] 1 F.C. 30; 256 N.R. 85 (F.C.A.), refd to. [para. 24].

Bradley-Sharpe v. Canadian Human Rights Commission et al. (2001), 212 F.T.R. 266; 2001 FCT 1130, refd to. [para. 25].

Atlantic Prudence Fund Corp. et al. v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 306 (T.D.), refd to. [para. 25].

Panktuutit Inuit Women's Association et al. v. Canada (2003), 229 F.T.R. 25; 2003 FCT 165 (Proth.), refd to. [para. 25].

Hiebert v. Price et al. (1999), 182 F.T.R. 18 (T.D.), affd. [2001] N.R. Uned. 32 (F.C.A.), application for leave to appeal dismissed (2001), 275 N.R. 398 (S.C.C.), refd to. [para. 26].

Beno v. Letourneau, J. et al. (1997), 130 F.T.R. 183 (T.D.), refd to. [para. 31].

Bradley-Sharpe v. Canadian Human Rights Commission et al. (2001), 212 F.T.R. 266; 2001 FCT 1130, refd to. [para. 31].

Stevens v. Conservative Party of Canada (2004), 248 F.T.R. 214; 2004 FC 396, refd to. [para. 33].

Terminaux Portuaires du Québec Inc. v. Conseil canadien des relations du travail (1993), 164 N.R. 60; 1993 CarswellNat 815 (F.C.A.), refd to. [para. 36].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101; 1997 CarswellQue 82, refd to. [para. 37].

Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315; 144 F.T.R. 76 (T.D.), refd to. [para. 37].

Ominayak et al. v. Lubicon Lake Indian Nation (2000), 185 F.T.R. 33 (T.D.), refd to. [para. 37].

Nametco Holdings Ltd. v. Minister of National Revenue, [2002] N.R. Uned. 71; 2002 FCA 149, refd to. [para. 37].

Hoeschst Marion Roussel Canada v. Canada (Attorney General) (2004), 251 F.T.R. 26; 2004 FC 489, refd to. [para. 37].

Société d'énergie Foster Wheeler Ltée v. Sociéte intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456; 318 N.R. 111; 237 D.L.R.(4th) 417; 2004 CarswellQue 513; 2004 SCC 18, refd to. [para. 39].

Ecology Action Centre Society v. Canada (Attorney General), [2001] F.T.R. Uned. 722; 2001 FCT 1164, refd to. [para. 48].

Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc. et al. (2000), 183 F.T.R. 267; 35 C.E.L.R.(N.S.) 1 (T.D.), refd to. [para. 48].

Statutes Noticed:

Federal Courts Rules, 1998, rule 317, rule 318 [para. 3].

Authors and Works Noticed:

Perreault, François, Inside Gomery, generally [para. 17]; pp. 3 [para. 85]; 111 [para. 76].

Sgayias, David, Kinnear, Meg, Rennie, Donald J., and Saunders, Brian J., Federal Court Practice (2005), p. 695 [para. 50].

Counsel:

P.A. Fournier, for Alfonso Gagliano;

P. Doody, for Jean Chrétien;

G. Pratte, for Jean Pelletier;

R. Langlois and Marie-Geneviève Mason, for John H. Gomery;

B. Saunders, A. Lespérance and P. Guay, for the Attorney General of Canada.

Solicitors of Record:

Fournier Asociés, s.e.n.c., for Alfonso Gagliano;

Borden Ladner Gervais, LLP, for Jean Chrétien;

Borden Ladner Gervais, s.r.1, for Jean Pelletier;

Langlois Kronström Desjardins, s.e.n.c.r.1, for John H. Gomery;

John H. Sims, Q.C., for the Attorney General of Canada.

This application was heard on May 5 and 12, 2006, in Montreal, Quebec, before Teitelbaum, J., of the Federal Court, who delivered the following judgment on June 9, 2006.