Violator No. 10 v. Canada (Attorney General), (2016) 488 N.R. 226 (FCA)

• Judge: Nadon, Pelletier and Gauthier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 16, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 488 N.R. 226 (FCA);2016 FCA 42

Violator No. 10 v. Can. (A.G.) (2016), 488 N.R. 226 (FCA)

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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: [2016] N.R. TBEd. MR.002

Contrevenant No. 10 (appelant) v. Le Procureur général du Canada (intimé)

(A-528-14; 2016 FCA 42; 2016 CAF 42)

Indexed As: Violator No. 10 v. Canada (Attorney General)

Federal Court of Appeal

Nadon, Pelletier and Gauthier, JJ.A.

February 8, 2016.

Summary:

The Financial Transactions and Reports Analysis Centre of Canada (the Centre) issued a Notice of Violation stating that the Violator had not complied with certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the Act). The Violator appealed to the Federal Court (the Act, s. 73.21). In a letter to the Centre, the Violator requested a broader production of documents than the one it had already received, and demanded that certain documents be sent to it. The Centre denied the request. The Violator moved for an order to produce the documents (Federal Courts Rules, rule 317).

The Federal Court, in a decision with neutral citation 2015 FC 1089, denied the motion. Rule 317 had a limited scope. It applied only to the documents that were in the possession of the decision-maker when it rendered its decision and not in the possession of the person making the request. While the Court could order a broader production when an applicant alleged a breach of procedural fairness, the onus was on the applicant to produce evidence supporting that allegation. The Violator had not met that burden. The Violator appealed, raising two grounds: (1) that an appeal under s. 73.21 of the Act was not an application for judicial review, which favoured a more generous production; and (2) that it had met its burden of proof with respect to demonstrating a breach of procedural fairness.

The Federal Court of Appeal dismissed the appeal. The Violator had failed to show that the Court would be justified in intervening. "[T]he Federal Court has not committed an error in principle or an error that diminishes the integrity and validity of its decision when it concluded that the Violator had not shown that it was entitled to the production of the documents requested under Rule 317." Nadon, J.A., in concurring reasons, disagreed with his colleagues regarding the applicable standard in a discretionary decision.

Criminal Law - Topic 1991

Offences against property - Money laundering and terrorist financing legislation - Reporting violations - Appeals (incl. confidentiality orders) - [See first Criminal Law - Topic 1993 ].

Criminal Law - Topic 1993

Offences against property - Money laundering and terrorist financing legislation - Disclosure and use of information (incl. confidentiality) - The Financial Transactions and Reports Analysis Centre of Canada (the Centre) issued a Notice of Violation stating that the Violator had not complied with certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the Act) - The Violator appealed to the Federal Court (the Act, s. 73.21) - In a letter to the Centre, the Violator requested a broader production of documents than the one it had already received, and demanded that certain documents be sent to it - The Centre denied the request - The Violator moved for an order to produce the documents (Federal Courts Rules, rule 317) - The Federal Court denied the motion - A ground of appeal raised by the Violator was that a statutory appeal, like the one provided for in s. 73.21, favoured a more ample production of documents than the one provided under rule 317 and the relevant case law - The Violator cited cases where the Federal Court refused to grant a broader production on the ground that the production would turn the judicial review into an appeal - The Federal Court of Appeal stated that "the Violator incorrectly interpreted those cases. All those cases involved a broader application for production in the context of an application for judicial review. The Court denied this application on the ground that it would transform the application for judicial review, where only the legality of the decision is at issue, into an appeal where the merit of the decision is at issue. The Violator is correct in noting that there is a difference between an appeal and a judicial review proceeding. However, he overlooks the fact that the case law holds that a statutory appeal of an administrative tribunal decision should be similar to a judicial review proceeding ... . This appeal is similar to a judicial review proceeding and the rule governing the production of the documents is therefore the same as the one that applies to judicial review proceeding. The Federal Court committed no error in principle in concluding as it did." - See paragraphs 7 to 10.

Criminal Law - Topic 1993

Offences against property - Money laundering and terrorist financing legislation - Disclosure and use of information (incl. confidentiality) - The Financial Transactions and Reports Analysis Centre of Canada (the Centre) issued a Notice of Violation stating that the Violator had not complied with certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the Act) - The Violator appealed to the Federal Court (the Act, s. 73.21) - In a letter to the Centre, the Violator requested a broader production of documents than the one it had already received, and demanded that certain documents be sent to it - The Centre denied the request - The Violator moved for an order to produce the documents (Federal Courts Rules, rule 317) - The Federal Court denied the motion - A ground of appeal submitted by the Violator was that it discharged its burden of demonstrating that a broader production of documents was required because the Centre violated its right to procedural fairness - The Federal Court of Appeal stated that the argument was based on circular reasoning - "It is not because the Centre denied the Violator's motion for an order to produce the documents that the Violator's right to procedural fairness was infringed. It is incumbent upon the Violator to demonstrate how the refusal to grant a broader production hinders its ability to respond to the case against it. Asserting that a breach of procedural fairness occurred does not constitute proof. I therefore agree with the Federal Court's finding that the Violator did not demonstrate the relevance of the documents requested." - See paragraphs 11 and 12.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - The issue in dispute involved the production of documents (Federal Courts Rules, rule 317) - The Federal Court denied the motion - Although the applicant had alleged a breach of procedural fairness, the applicant had not produced evidence supporting that allegation - The applicant appealed - The Federal Court of Appeal considered the applicable standard in a discretionary decision - The Court shared the view that "our Court must show deference since the Federal Court's decision is discretionary" - However, Nadon, J.A., disagreed with his colleagues that the Court adopt the standard that it recently set out in Turmel v. Canada (2016) - Regardless of the standard that applied, the result in this case was the same; i.e., the dismissal of the appeal - Nadon, J.A., found the situation "unacceptable in that the parties and their counsel are entitled to know the standard that applies when they appear before our Court. Since 2008, our Court has adopted three different standards of review for discretionary decisions ... . In these circumstances, it seems to me that our Court should consider holding a hearing before five judges to arrive at an answer that will allow the parties to know the real standard that applies before this Court." - See paragraphs 18 to 28.

Counsel:

Doug Mitchell and Emma Lambert, for the appellant, Violator;

Nadine Dupuis and Benoît de Champlain, for the respondent, The Attorney General of Canada.

Solicitors of Record:

Irving Mitchell Kalichman, Montreal, Quebec, for the appellant, Violator;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada.

This appeal was heard at Montreal, Quebec, on September 16, 2015, before Nadon, Pelletier and Gauthier, JJ.A., of the Federal Court of Appeal, who delivered the following judgment and reasons in both official languages, dated February 8, 2016, at Ottawa, Ontario:

Pelletier, J.A. (Gauthier, J.A., concurring) - see paragraphs 1 to 17;

Nadon, J.A. (concurring reasons) - see paragraphs 18 to 28.