Martin Duhamel Petitioner v. Financial Institutions Commission and, 2018 BCSC 962

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Duhamel v. Financial Institutions Commission, 2018 BCSC 962 Date: 20180604 Docket: S179553 Registry: Vancouver In the Matter of the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 Between: Martin Duhamel Petitioner And Financial Institutions Commission and Coast Capital Savings Credit Union Respondents Before: The Honourable Mr. Justice Butler Oral Reasons for Judgment The Petitioner: Appearing In Person Counsel for the Respondent, Financial Institutions Commission: J. Hughes M.A. Witten Counsel for the Respondent, Coast Capital Savings Credit Union: S.

Boyle A.C. Luchenko Place and Date of Hearing: Vancouver, B.C. May 8, 2018 Place and Date of Judgment: Vancouver, B.C. June 4, 2018 [ 1 ] This is an application for production of extra-record documents in a petition for judicial review. Martin Duhamel, the petitioner and applicant, seeks judicial review of the r espondent, Financial Institutions Commission’s consent under s. 15.2(1) (

b) of the Credit Union Incorporation Act , R.S.B.C. 1996, c. 82 (the “ CUIA ”) to the respondent, Coast Capital Savings Credit Union’s (“Coast Capital”) application to the federal Minister of Finance to exit British Columbia’s regulatory jurisdiction and continue as a federal credit union (the “Consent Decision”). Earlier in these proceedings, I issued a decision indexed as Duhamel v.

Financial Institutions Commission , 2018 BCSC 601 (the “ Duhamel Record Ruling ”) and determined that the record for the Consent Decision (the “Decision Record”) should be filed with a sealing order such that some portions of the Decision Record would be redacted for use in this proceeding. [ 2 ] The background of this matter is set out in the Duhamel Record Ruling and I need not repeat it here. That decision also describes in some detail the nature of the documents that form the Decision Record and the general content of those portions of the Decision Record that have been redacted.

The redacted portions of the Decision Record contain sensitive proprietary, financial and risk- analysis information regarding Coast Capital, third party BC credit unions, the BC credit union system as a whole and the Financial Institutions Commission’s regulation thereof. [ 3 ] Throughout the balance of these reasons it is necessary to distinguish between the Financial Institutions Commission’s role as an administrative body and its role as a body authorized under s. 201 of the Financial Institutions Act, R.S.B.C. 1996, c. 141, to make decisions under that Act and under the CUIA , including the Consent Decision.

I will refer to the administrative body as FICOM and to the decision-making body as the Commission. This distinction is important because the information and documentation that was before the Commission when it made the Consent Decision is not the same as the information received by FICOM, acting in its general administrative capacity. [ 4 ] In this application, the petitioner seeks production by FICOM of extra-record documents, namely documents that do not form part of the Decision Record that was before the Commission when it made the Consent Decision.

He also asks that any documents produced form part of the record before the court for the purpose of the hearing of the judicial review petition. FICOM opposes the application and says the petitioner is not entitled to production of extra-record documents as the court’s jurisdiction to make such an order is to be exercised sparingly and only in exceptional circumstances. FICOM also maintains that the documents sought are not admissible, necessary or relevant to the determination of this petition on the merits.

Coast Capital also opposes the application on a similar basis. [ 5 ] Before dealing with the issue on this application, I should note that on April 4, 2018, and with the consent of FICOM and Coast Capital, the petitioner filed an amended petition. In addition to the original ground of review alleging that FICOM failed to adequately

consider the principles set out in BCE Inc. v. 1976 Debentureholders , 2008 SCC 69 , the amended petition adds a further ground of review which alleges that FICOM exercised its discretion unreasonably in making the Consent Decision. The amended petition is otherwise substantively the same as the initial petition. Documents Sought by the Petitioner [ 6 ] Initially the petitioner sought an order for production of:

a) all documents submitted by Coast Capital to FICOM in the application for the Consent Decision, whether or not those documents were placed before the Commission;

b) documents produced in evidence at hearings before the Commission;

c) a transcript of the oral evidence, if any, given at hearings before the Commission; and

d) the decision of the Commission and any reasons given by it. [ 7 ] FICOM advised the petitioner that the Commission does not conduct adversarial adjudicative hearings and that the Consent Decision was considered on the basis of the Decision Record. No oral evidence was provided to the Commission and there are no recordings or transcripts of oral evidence from the June 21, 2017 meeting in which Coast Capital’s application to continue as a federal credit union (the “Continuance Application”) was considered.

Further, the Commission does not ordinarily issue written reasons for consent decisions made in respect of applications by regulated entities, and did not do so for the Consent Decision. The Commission did issue a 21-page decision note which has been produced and it documented the decision through a resolution. [ 8 ] Coast Capital made the Continuance Application on January 30, 2017. The documents sought on this application consist of materials submitted to FICOM by Coast Capital between approximately December 2012 and January 2017.

In other words, the documents requested pre-date the Continuance Application and were not included as part of the application material that was considered by the Commission. Accordingly, those documents are not part of the Decision Record. [ 9 ] On April 27, 2018, the petitioner advised by email that he intended to reduce the scope of the documents sought on this application: Affidavit #1 of Sophia Paulino made May 3, 2018, Ex. A [AR Tab 10].

Specifically, the petitioner advised that: I will seek only production of documents that - were submitted to FICOM by Coast Capital Savings pertaining to its undertaking to continue as a federal credit union, - and that relate to the communications between Coast Capital Savings and its staff and members, - and that do not already appear in the Decision Record as filed as Exhibit B of the Third Affidavit of Melanie Achtemichuk - and that is not clearly a draft version of another document submitted to FICOM by Coast Capital Savings, where the original was never sent to staff or members. [ 10 ] The petitioner further advised that: I am expecting these documents to include any documentation *about* Coast Capital’s communications (oral and written) with its members, not just the written documents themselves. [ 11 ] In the result, the documents now in issue are those sought in

Part 1, para. 1(

a) of the notice of application, as modified by the petitioner’s April 27, 2018 email, namely:

a) all documents submitted by Coast Capital to FICOM in relation to the Continuance Application for the Consent Decision, including those documents relating to communications between Coast Capital and its staff and members regarding the Continuance Application;

b) this includes all documents that concern both oral and written communications between Coast Capital and its staff and members; but

c) excluding documents that already appear in the Decision Record as well as draft versions of documents contained in the Decision Record (but only where the originals of the draft documents were never sent to staff or members). (collectively, the “Extra-Record Documents”). [ 12 ] It is evident that this request is intended to capture a large category of documents created in the years leading up to the Continuance Application.

It is also apparent from the material before this court that FICOM engaged in discussions with Coast Capital over a long time period about the proposed federal continuation and the latter’s communications with its members about that matter. There is likely a considerable volume of documents that fall within these requests. The documents are not in the Decision Record because they predate the Continuance Application and were, in a sense, preparatory for that application.

Position of the Petitioner [ 13 ] The petitioner argues that information provided by Coast Capital to its members for the vote on the special resolution to consent

to its transition from a provincial credit union to a federal credit union should be included in the record before this court. The vote was held in October and November, 2016. The information provided to members includes an information booklet and a website, both of which are contained in the Decision Record. However, the petitioner contends that there are other relevant documents, including information provided by Coast Capital to its staff for the purpose of having the staff act as supporters of Coast Capital’s position when communicating with members.

The petitioner believes that important, relevant documents about Coast Capital’s communications have been omitted from the Decision Record. [ 14 ] In making this argument the petitioner notes that in 2015, FICOM asked Coast Capital to provide for review its communication plan, key messages and the materials it expected to use to inform its members. The petitioner says the Decision Record does not contain the information provided to FICOM which likely means the Commission did not have that information.

The petitioner argues that any and all documents and information submitted by Coast Capital regarding its voter engagement efforts leading up to the Continuance Application must be produced and be part of the record for judicial review. [ 15 ] The petitioner argues that the definition in s. 1 of the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 (“ JRPA”) , provides that a “record of the proceeding includes … a document by which the proceeding is commenced”.

Accordingly, he says that any documents submitted by Coast Capital to FICOM leading up to the Continuance Application should be included in the record of the proceeding. Further, he says that unless all of the information provided by Coast Capital to FICOM in support of the Continuance Application was placed before the Commission, the Consent Decision could not have been reasonable. In order for the court to consider this argument, he says that all of that documentation must be before it.

Position of FICOM [ 16 ] FICOM says extrinsic evidence that was not before the Commission is presumptively inadmissible given the circumstances of and issues raised on this judicial review. The Extra-Record Documents sought by the petitioner do not form part of the Decision Record and were not before the Commission when it made the Consent Decision. Accordingly, they should not be considered by this court on judicial review. In addition, the Extra-Record Documents are not necessary or relevant to the determination of this proceeding on its merits.

Position of Coast Capital [ 17 ] Coast Capital supports and adopts the submissions of FICOM. Coast Capital also notes that the petitioner’s concerns about the Continuance Application and the process leading up to the special resolution of members are set out in a lengthy document that is included in the Decision Record and was before the Commission when it made the Consent Decision. Analysis and Ruling [ 18 ] For the reasons that follow, I dismiss the petitioner’s application.

The application for production of the Extra-Record Documents and to have them form part of the record to be considered by the court on this judicial review is premised on a fundamental misunderstanding of the judicial review process. Judicial review is the means by which courts supervise those who exercise statutory powers to ensure they do not overstep their legal authority. As set out in Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 28 , “[t]he function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.” Given the court’s supervisory role on judicial review, proceedings are to be conducted on the record that was before the administrative decision-maker. A court is not permitted to embark on a de novo hearing and consider evidence that was not before the decision-maker: Actton Transport Ltd. v. British Columbia (Employment Standards) , 2010 BCCA 272 at para. 23 .

The petitioner’s application is an attempt to have a wide-ranging inquiry into matters that were not before the Commission and were thus not considered when it made the Consent Decision. The Extra-Record Documents are not necessary for this court to consider the issues raised in the petition, nor are they relevant to those issues. [ 19 ] FICOM, as the administrative body dealing with financial institutions, is required to engage with financial institutions about a variety of topics. It did so here when Coast Capital approached it about a possible application to continue as a federal institution.

The fact that FICOM carried out those discussions does not make all documents created and information exchanged prior to the Continuance Application a part of the record that the court must consider on this judicial review application. The Commission made the Consent Decision on the basis of the Decision Record that has now been filed with this court. Accordingly, the Decision Record should be the record considered by this court on judicial review. [ 20 ] As stated in Sobeys West Inc. v.

College of Pharmacists of British Columbia , 2016 BCCA 41 at para. 52 : … There is ample authority for the proposition that evidence that could or should have been before the tribunal, but which was not in fact before it, is generally not admitted in judicial review proceedings. The court is reviewing, and must show some deference for, the decision already taken, rather than decide the matter anew on different evidence. [Emphasis in original.] [ 21 ] As I noted in the Duhamel Record Ruling , the Commission as decision-maker has the right to determine the extent of its record.

The reviewing court is not normally entitled to look beyond that record on judicial review: British Columbia (Minister of Citizens’ Services) v. British Columbia (Information and Privacy Commissioner) , 2012 BCSC 875 at para. 24 . The discretion to look beyond the record must be exercised sparingly and only in exceptional circumstances. Those circumstances include to show lack of jurisdiction, a denial of natural justice or that there was no evidence to support a material finding: Kinexus Bioinformatics Corporation v. Asad , 2010 BCSC 33 at para. 17 ; and Citizens’ Services at para. 18.

Those exceptions are not relevant here. [ 22 ] In addition to the lack of any basis for consideration of the Extra-Record Documents on the hearing of this petition, the

petitioner has no presumptive right to discovery of documents as this is a judicial review proceeding. While the court retains the inherent jurisdiction to order disclosure of documents, that jurisdiction is narrowly applied and is much less broad than discovery of documents in actions brought by notice of civil claim: Nechako Environmental Coalition v. British Columbia (Minister of Environment, Lands and Parks) , [1997] B.C.J.

No. 1790 at para. 25 (S.C.) . [ 23 ] A party seeking production or consideration of extrinsic documents must establish that the documents are both necessary and relevant based on the pleadings: Brar v. College of Veterinarians of British Columbia , 2011 BCSC 215 at para. 20 . Here, the Extra- Record Documents are not necessary. The petitioner does not allege a lack of jurisdiction, a denial of natural justice or that there is no evidence to support a material finding. [ 24 ] In addition, the documents are not relevant to the issues raised in the petition.

The petitioner argues that the Consent Decision was unreasonable because it was contrary to the members’ interests and the members did not receive full and fair disclosure of information. The reasonableness of the Commission’s decision must, as noted above, be assessed based on the information in the Decision Record that was before the Commission.

The type of information and documentation that the petitioner says must be available as a result of FICOM’s communications with Coast Capital can have no relevance to those issues. [ 25 ] I would also reject the petitioner’s submission that the Extra-Record Documents fall within the definition of “record of the proceeding” in s. 1 of the JRPA . Those documents are clearly not documents “by which the proceeding is commenced”. The proceeding in question is the Continuance Application which was not filed until January 30, 2017. The documents requested all pre-date that application.

Further, as noted in SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611 , 2011 BCCA 353 at paras. 48 and 49 , the definition in the JRPA has a limited purpose and is not a general provision establishing what material the court may consider on a judicial review application. [ 26 ] I also reject the petitioner’s suggestion that it is necessary for the court to have all of the documents that FICOM prepared internally or received from Coast Capital from 2012 onwards to decide if the Consent Decision was reasonable.

As I have already indicated, this request is based on a misapprehension of the nature of judicial review. For the purposes of judicial review, the “record” is not an open-ended concept capable of being expanded to include whatever documents a petitioner believes might be relevant. Except in exceptional circumstances, the decision under review must take place on the basis of the record that was before the decision-maker. There are no exceptional circumstances here. [ 27 ] The petitioner’s application is dismissed. “Butler J.”