R. v. Northumberland Compensation Appeal Tribunal, 2015 FCA 268

[2016] 3 F.C.R. 19 A-293-15 2015 FCA 268 The Canadian Copyright Licensing Agency (Operating as Access Copyright) (Applicant) v.

Her Majesty the Queen in Right of the Province of Alberta, Her Majesty the Queen in Right of the Province of Manitoba, theProvince of New Brunswick, Her Majesty in Right of Newfoundland and Labrador, Her Majesty the Queen in Right of theProvince of Nova Scotia, the Government of Nunavut, Her Majesty the Queen in Right of the Province of Prince Edward Island,Her Majesty the Queen in Right of the Province of Saskatchewan, Government of Yukon and Her Majesty the Queen in Right ofthe Province of British Columbia (Respondents) Indexed as: Canadian Copyright Licensing Agency (Access Copyright) v.

Alberta Federal Court of Appeal, Stratas J.A.—Ottawa, November 26, 2015.

Practice — Affidavits — Motion seeking removal of material included by applicant in application for judicial review of Copyright Boardof Canada decision — Board responding to request under Federal Courts Rules — Applicant placing material not obtained under r. 317into application record — That material not introduced by affidavit describing provenance thereof — How should materials beforeadministrative decision maker be brought before reviewing court — Applicant erring in not introducing material by way of affidavitpursuant to Rules, r. 306 — Filing affidavit allowing for cross-examination thereon as parties entitled to test each other’s positions onwhether certain material appended to affidavits was in fact before administrative decision maker — While having good intentions,applicant contravening rule that facts must be proven by evidence, might have worked procedural unfairness — As to remedy, Rules, r. 3requiring that Court apply rules in manner to secure just determination on merits, not to punish mistake that can be fixed — Courtordering, inter alia, removal from record of materials mistakenly included therein, allowing parties to file affidavits pursuant to Rules, r.306, undertake cross-examinations pursuant to Rules, r. 308 — Motion granted.

This was a motion by the respondents seeking the removal of certain material included by the applicant in its application for judicialreview of a decision by the Copyright Board of Canada. In response to a request made by the applicant under rule 317 of the Federal Courts Rules, the Board informed the parties that it did nothave in its possession any relevant material not already in the possession of the applicant. The applicant then placed material that it didnot obtain under rule 317 into its application record. It was not under an affidavit describing the provenance of the material.

At issue was how materials that were before the administrative decision maker should be brought before the reviewing court. Held, the motion should be granted. Documents by themselves, not introduced by an affidavit authenticating them, are not admissible evidence. Under rule 306 and rule 307,applicants and respondents, respectively, can serve upon each other an affidavit that appends such material. They need only include thematerial necessary for their application.

Cross-examinations may be conducted on the affidavits pursuant to rule 308 as the parties areentitled to test each other’s positions on whether certain material appended to the affidavits was in fact before the administrative decisionmaker at the time it made its decision. The applicant thus erred in not introducing the material by way of an affidavit pursuant to rule 306of the Rules. After receiving the affidavit, the respondents might have exercised their right to cross-examine pursuant to rule 308. Theapplicant’s error was an innocent one.

The applicant had good intentions and was looking for a fast, easy way to place the materialbefore the Court. Unfortunately, the way the applicant went forward offended the Rules, ran contrary to the general rule that facts beforethe reviewing court must be proven by evidence, and might have worked procedural unfairness. On the issue of remedy, rule 3 requires the Court to apply the rules to secure a just determination on the merits, not to punish a party thathas made a mistake that can be fixed.

To that end, the Court ordered, inter alia, that the materials mistakenly included in the applicant’sapplication record be removed from that record; that the applicant may serve an affidavit pursuant to rule 306 appending materials it sayswere before the Board and in its possession, including the materials mistakenly included in the application record; that the respondentsmay serve affidavits responding to the applicant’s affidavit; and that cross-examinations may be undertaken in accordance with rule 308concerning those affidavits.

STATUTES AND REGULATIONS CITED Federal Courts Rules, SOR/98-106, rr. 3, 306, 307, 308, 309, 310, 317, 318. CASES CITED CONSIDERED: R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1951] EWCA Civ. 1 (BAILII), [1952] 1 K.B. 338; Hartwig v.Commission of Inquiry into matters relating to the death of Neil Stonechild, 2007 SKCA 74 , 284 D.L.R. (4th) 268. REFERRED TO: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Access Information Agency Inc. v. Canada (Attorney General), 2007FCA 224, 66 Admin. L.R. (4th) 83; Canada (Attorney General) v.

Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81; Canada (AttorneyGeneral) v. Lacey, 2008 FCA 242; Canada (Attorney General) v. Canadian North Inc., 2007 FCA 42; Bernard v. Canada (Revenue

Agency) , 2015 FCA 263 . motion by the respondents seeking the removal of certain material included by the applicant in its application for judicial review of a Copyright Board of Canada decision ( Access Copyright (Provincial and Territorial Governments) 2005-2014 , online: <http://www.cb- cda.gc.ca/decisions/2015/DEC-2015-03-22.pdf>). Motion granted. WRITTEN REPRESENTATIONS Jessica Zagar for applicant. Wanda Noel , J. Aidan O’Neill and Ariel A. Thomas for respondents except Her Majesty the Queen in Right of the Province of British Columbia. Bruce M.

Green for respondent Her Majesty the Queen in Right of the Province of British Columbia. SOLICITORS OF RECORD The Canadian Copyright Licensing Agency , operating as Access Copyright , Toronto, for applicant. Wanda Noel and Fasken Martineau DuMoulin LLP , Ottawa, for respondents except Her Majesty the Queen in Right of the Province of British Columbia. Oyen Wiggs Green & Mutala LLP , Vancouver, for respondent Her Majesty the Queen in Right of the Province of British Columbia. The following are the reasons for order rendered in English by Stratas J.A. : A.

Introduction and the basic facts giving rise to this motion [ 1 ] Access Copyright has brought an application for judicial review in this Court. It seeks to quash the decision dated May 22, 2015 of the Copyright Board [ Access Copyright (Provincial and Territorial Governments) 2005-2014 ].

The respondents have now brought a motion seeking the removal of certain material Access Copyright has included in its application record. [ 2 ] At the outset, some brief description of the material in issue is necessary. [ 3 ] In its notice of application, Access Copyright included a request under rule 317 [of the Federal Courts Rules , SOR/98-106 (Rules)] that the Board supply it with “material relevant to [the] application that is in the possession of [the Board] … and not in [Access Copyright’s] possession”.

In response to the rule 317 request, the Board informed the parties that it did not have in its possession any relevant material not already in the possession of the applicant. [ 4 ] The motion before this Court concerns how Access Copyright dealt with the material that was before the Board and in its possession, i.e., the material that it did not obtain under rule 317 . Access Copyright simply placed that material into its application record. It was not under an affidavit describing the provenance of the material. [ 5 ] The respondents move to strike this material from the applicant’s record.

They say that the documents should have been supplied under affidavit. For the reasons below, I agree with the respondents. [ 6 ] The failure to place the documents under affidavit sounds like a technical deficiency of no moment. As I shall explain, it is not— in some instances, that failure can cause procedural unfairness, and it offends a basic principle concerning the admissibility of evidence. B. Analysis

(1) The applicable principles [ 7 ] At the root of this motion is a question: on a judicial review, how does one bring the materials that were before the administrative decision maker before the reviewing court? [ 8 ] The frequency with which this question comes before the Federal Courts shows that many do not know the answer. There is little case law on point, perhaps because we regard the relevant rules as being clear. Indeed, the rules are clear but they are intricate and interrelated and, in some cases, stand against a common law backdrop.

Now is the time to provide some more general guidance. [ 9 ] As is the case with every procedural question in the Federal Courts system, the starting point must be the Federal Courts Rules . [ 10 ] We begin with rule 317, the rule that Access Copyright invoked in its notice of application. Rule 317 permits a party to obtain certain material from the administrative decision maker. The administrative decision maker responds in accordance with rule 318 [of the Rules ]. [ 11 ] Rule 317 stands against a common law backdrop.

Over six decades ago, the writ of certiorari —the writ used to quash decisions of an administrative decision maker—was available in the case of an error on the face of the record. That sort of error was quite limited and in no way bears relation to the concept of unreasonableness as we know it today. As a result, the material before the administrative decision maker that could be placed before the reviewing court was extremely limited: R. v. Northumberland Compensation Appeal Tribunal, ex p.

Shaw , [1951] EWCA Civ. 1 (BAILII), [1952] 1 K.B. 338, at pages 351 and 352 . [ 12 ] Northumberland stood for the proposition that the particular evidence before the administrative decision maker was not to be

produced to the reviewing court. But since Northumberland, the availability of certiorari has dramatically expanded and with thatexpansion has come the need for more materials to be placed before the reviewing court. Today, certiorari is available for substantiveunreasonableness of the sort contemplated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

Review of that nature mayrequire the reviewing court to have before it large portions of the material or even all of the material the administrative decision makerconsidered in making its decision. [13] Rule 317 reflects the reality today that the permissible grounds for judicial review are broader than they once were. It entitles therequesting party to receive everything that was before the decision maker at the time it made its decision and that the applicant does nothave in its possession: Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224, 66 Admin. L.R. (4th) 83, atparagraph 7.

This allows parties “to effectively pursue their rights to challenge administrative decisions from a reasonablenessperspective” and “have the reviewing court [that is engaged in reasonableness review] consider the evidence presented to the tribunal inquestion”: Hartwig v.

Commission of Inquiry into matters relating to the death of Neil Stonechild, 2007 SKCA 74 , 284 D.L.R.(4th) 268, at paragraph 24 (commenting on a rule similar to rule 317). [14] This excerpt from Hartwig recognizes the relationship between the record before the reviewing court and the reviewing court’sability to review what the administrative decision maker has done. If the reviewing court does not have evidence of what theadministrative decision maker has relied upon, the reviewing court may not be able to detect reviewable error.

In other words, aninadequate evidentiary record before the reviewing court can immunize the administrative decision maker from review on certaingrounds. See Canada (Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81, at paragraph 276 (dissenting reasons, but notopposed on this point). [15] Rule 317 can fulfil another purpose that is less lofty but still important. Parties before the administrative decision maker willoften have in their possession all of the material the administrative decision maker considered in making its decision. But not always.And sometimes parties may be unsure whether they do.

Sometimes they wish to confirm exactly what the administrative decision makeractually considered in making its decision. Rule 317 of the Federal Courts Rules provides a means by which parties can achieve thoseends. [16] The administrative decision maker responds to a rule 317 request by following rule 318. Under that rule, it delivers to therequester the material that was before the decision maker (and that the applicant does not have in its possession) at the time the decisionat issue was made.

Under rule 318, the administrative decision maker can also object to disclosure, for example on the basis of publicinterest privilege or legal professional privilege: see Slansky, above, at paragraphs 277–283 on the issue of how to litigate a rule 318objection involving confidential material. [17] Materials produced by the administrative decision maker in response to a rule 317 request can simply be placed in the applicant’srecord or the respondent’s record: see paragraph 309(2)(e.1) and paragraph 310(2)(c.1) [of the Rules].

When that is done, the material isin the evidentiary record before the reviewing court and may be used by the parties and the Court. No affidavit is necessary. [18] For completeness, I should note two other things. First, the portions of any transcript of oral evidence before a tribunal may alsobe filed in the applicant’s or respondent’s record without an affidavit: see paragraph 309(2)(

f) and paragraph 310(2)(d) [of the Rules].Second, rule 318 provides that in addition to delivering the material to the party that made the request under rule 317, the administrativedecision maker must also “transmit” a certified copy of the material to the reviewing court. Note that the Rule uses the word “transmit”,not “file”. The material is not formally before the reviewing court in the sense of being a part of the reviewing court’s evidentiary record:Canada (Attorney General) v. Lacey, 2008 FCA 242.

Instead, the Registry is given the material in order to authenticate that materialscontained in an application record under paragraph 309(2)(e.1) or paragraph 310(2)(c.1) are indeed those supplied by the administrativedecision maker: Canada (Attorney General) v. Canadian North Inc., 2007 FCA 42, at paragraph 11. [19] I turn now to material that the party has in its possession and that was before the administrative decision maker at the time itmade the decision in issue. This material is potentially relevant to the judicial review, but is not produced by a decision maker inresponse to a rule 317 request.

Rules 309 and 310 do not permit this material to be filed into the applicant’s record or the respondent’srecord. Thus, the parties must take affirmative steps to place that material before the reviewing court. [20] Here, we must look at rules 306 to 310. But before doing so, we must appreciate that those rules sit alongside a fundamentalgeneral principle: facts must be proven by admissible evidence.

There are exceptions to this, such as the availability of judicial notice, thepresence of legislative provisions speaking to the issue, and an agreed statement of facts (including an agreement that certain documentsshall be admissible). Putting those exceptions aside, documents by themselves, not introduced by an affidavit authenticating them, are notadmissible evidence. Documents simply stuffed into an application record are not admissible. [21] Under rule 306 and rule 307, applicants and respondents, respectively, can serve upon each other an affidavit that appends thematerial.

Parenthetically, for completeness, I note that material that was not before the administrative decision maker can potentially beplaced before the reviewing court by way of affidavit. However, there are restrictions and admissibility requirements unique to judicialreview proceedings that must be obeyed: see, e.g., Bernard v. Canada (Revenue Agency), 2015 FCA 263, and cases referred to therein. [22] Under rules 306 and 307, parties need not include all of the material that was before the administrative decision maker.

To savecosts and to simplify the record, they need only include the material necessary for their application. So under rule 306, an applicant mayserve an affidavit appending only some of the material. In response, a respondent might regard other parts of the material as beingnecessary. That respondent may use rule 307 to serve an affidavit appending additional material. See generally Canadian North, above,at paragraphs 3–5. [23] Cross-examinations may be conducted on the affidavits: rule 308. Why might cross-examinations be necessary?

Sometimes thereis uncertainty about whether certain material appended to the affidavits was in fact before the administrative decision maker at the time itmade its decision. The parties are entitled to test each other’s positions on that. Down the road, a reviewing court might have todetermine the content of the evidentiary record before proceeding further, and in some cases it may be assisted by the cross-examinations.

[ 24 ] Any affidavits under rules 306 and 307 are placed in the applicant’s record or the respondent’s record: see paragraph 309(2)(

d) and paragraph 310(2)(b). Cross-examination transcripts are also to be included: see paragraph 309(2)(

e) and paragraph 310(2)(c).

(2) Applying the principles to this case [ 25 ] In this case, Access Copyright simply included in its application record material it had in its possession that it says was before the Board at the time it made its decision. It did not introduce the material by way of an affidavit. [ 26 ] The foregoing analysis shows that this was an error. Access Copyright should have served an affidavit explaining that the material was before the Board when it made its decision, appending the relevant material to that affidavit. After receiving that affidavit, the respondents might have exercised their right to cross-examine.

As explained in paragraph 23, above, the right to cross-examine can be important in some circumstances. In this case, I cannot tell whether or not the respondents would have exercised their right to cross- examine. The fact they might have underscores the need for Access Copyright to have served an affidavit. Finally, following any cross- examinations, Access Copyright should have included the affidavit (with exhibits) and any cross-examination transcripts in its application record: see paragraph 309(2)(

d) and paragraph 309(2)(e). [ 27 ] I am satisfied that Access Copyright’s error was an innocent one. The candid and professional affidavit of senior counsel shows that Access Copyright had good intentions and was looking for a fast, easy way to place the material before the Court.

Unfortunately, the way Access Copyright went forward offended the Rules , ran contrary to the general rule that facts before the reviewing court must be proven by evidence, and might have worked procedural unfairness. [ 28 ] The Federal Courts Rules can accommodate good intentions that give rise to creative and practical solutions that simplify things. At the outset of this matter, Access Copyright and the respondents could have discussed the evidentiary record needed by the Court and could have agreed on a list of material to be placed in that record.

Then, by informal letter before at or the same time as the filing of the application record, Access Copyright could have requested, on consent, an order allowing for the agreement and the material covered by it to be placed into the application record without an affidavit: see paragraph 20, above, regarding agreed statements of fact. [ 29 ] Given that Access Copyright mistakenly included materials in its application record, what should now happen? [ 30 ] The respondents say that they have suffered “irredeemable prejudice” from this “egregious” irregularity.

They say that they have served an affidavit responding to Access Copyright’s affidavit without realizing that Access Copyright intended to include many more documents into the application record. As will be seen below, this minor irregularity can be easily fixed. [ 31 ] On the issue of remedy, the respondents’ primary position is basically “too bad, so sad”: Access Copyright should be barred from including in the application record an affidavit appending the materials, regardless of how relevant the materials might be to the Court’s determination of the judicial review. [ 32 ] This is remedial overreach.

Rule 3 [of the Rules ] requires us to apply the rules to secure a just determination on the merits, not to punish a party that has made a mistake—here, a relatively benign one—that can be fixed. [ 33 ] To that end, this Court will order the following: (

a) Within 10 days of the Court’s order, the materials mistakenly included in Access Copyright’s application record (to be detailed in this Court’s order) should be removed from that record and Access Copyright’s memorandum of fact and law, drafted on the basis of the improper record, should be removed from the record or the Court file, as the case may be; (

b) Within 20 days of this Court’s order, in accordance with rule 306, Access Copyright may serve an affidavit appending materials it says were before the Board and in its possession, including the materials mistakenly included in Access Copyright’s application record; (

c) In accordance with rule 307, the respondents may serve affidavits responding to the affidavit served under (b); (

d) In accordance with rule 308, cross-examinations may take place concerning the affidavits served under (

b) and (c); (

e) The time limits for (

c) and (

d) are those set out in rules 307 and 308; (

f) Within the time specified under rule 309, Access Copyright shall prepare a supplementary application record containing the materials specified under rule 309 that do not appear in its corrected application record; also at that time, Access Copyright shall file its memorandum of fact and law; (

g) The respondents (comprised of two separately-represented groups) shall file their records and memoranda of fact and law in accordance with rule 310; for clarity, those records should include all of the respondent’s affidavits, whether filed in response to Access Copyright’s new affidavit or filed in response to Access Copyright’s original application record; (

h) Time thereafter shall run in accordance with the Federal Courts Rules . [ 34 ] This motion was about a minor, fixable mistake. As long as humans are involved in litigating cases, no matter how much they try to prevent mistakes, mistakes like this will sometimes happen, even by excellent counsel. Happily, most procedural mistakes, like the one in this case, do not seriously implicate clients’ rights.

Mistakes of this sort should be nothing more than a minor inconvenience during the drive to the ultimate destination—a judicial determination on the merits that to all is proper and fair. [ 35 ] But here, the parties pulled over to the side of the road and stopped to fight, forgetting the destination. After Access Copyright made its mistake, the respondents wrote, pointing out the mistake. Despite the clarity of the relevant rules, Access Copyright dug in its heels, maintaining its position rather than reassessing it. In reaction to that, the respondents brought their motion.

But they too showed inflexibility, forcefully asserting their position that Access Copyright should be prevented in the judicial review from using any of the

material it improperly included in its application record, whether or not it was needed by the Court. In counter-reaction to that, Access Copyright brought a counter-motion—one that in the end is unnecessary for this Court to determine—proposing a lesser, more practical remedy. In that counter-motion, it laudably advanced submissions showing an awareness of its mistake. But that changed nothing: everyone has remained stuck on the side of the road. [ 36 ] All have acted in good faith, representing their clients’ interests vigorously, advocating their positions with characteristic excellence.

But here initial intransigence begat a motion with remedial overreach, and remedial overreach begat a counter-motion. Forgotten was the destination: this Court, as a practical problem solver, simply wants to determine the judicial review properly and fairly on the merits, using a proper and fair evidentiary record. The focus should have been on a fix, not a fight. [ 37 ] An order shall issue in accordance with these reasons. There shall be no order for costs.