2019 FC, 2019 FC 1646

Date: 20191219 Docket: T-516-19 Citation: 2019 FC 1646 Ottawa, Ontario, December 19, 2019 PRESENT: The Honourable Madam Justice Kane BETWEEN: DR. GÁBOR LUKÁCS Applicant and THE CHAIRPERSON OF THE CANADIAN TRANSPORTATION AGENCY Respondent ORDER AND REASONS [ 1 ] The Applicant, Dr. Gábor Lukács, brings this motion in writing pursuant to Rules 369 and 399(2) of the Federal Courts Rules , SOR/98-106 [the Rules ], requesting the Court to vary its Order made on September 4, 2019, which granted leave to the Respondent to file a Confidential Affidavit with Confidential Exhibits [Confidentiality Order].

The Applicant seeks specific changes to the Confidentiality Order, including that the Confidential Affidavit be placed on the public record without its exhibits.

The Applicant also seeks an Order confirming that he was served with the Confidential Affidavit and that he is entitled to cross-examine the affiant on her Confidential Affidavit. [ 2 ] In the alternative, the Applicant seeks an Order to clarify and confirm the contents of the Direction of the Court dated November 14, 2019, which indicated that the Confidential Affidavit had not been served on the Applicant and that cross-examination was restricted to the Public Affidavit of Ms. Patrice Bellerose, sworn on July 26, 2019.

The Applicant seeks to convert the Direction to an Order so that he may then appeal that Order. [ 3 ] For the reasons that follow, the Court finds that the content of the Confidential Affidavit is not confidential and that it should be served on the Applicant and filed with the Court as a public document. The exhibits to the Confidential Affidavit remain confidential and under seal, not accessible to the Applicant or the Public. I. Overview/Background [ 4 ] In the Confidentiality Order, I set out a brief background.

I have repeated the background, along with the more recent events, to provide the relevant context. A. The Applicant’s Request for Records from the Canadian Transportation Agency [ 5 ] On September 23, 2016, the Applicant sought records from the Canadian Transportation Agency [the Agency]. The Applicant requested all records about himself, not limited to records referring to his first and/or last name, for the period of January 1, 2015 to September 23, 2016.

The Applicant clarified that records that had been served upon him previously in other legal proceedings or otherwise sent to him were excluded from the request, as were letters and emails that the Applicant had sent to the Agency. The Agency provided some documents to the Applicant and withheld others based on its application of sections 12 , 26 , 27 and 70 of the Privacy Act, RSC 1985, c P-21 . B.

The Applicant’s Complaint to the Office of the Privacy Commissioner [ 6 ] In April 2017, the Applicant made a complaint to the Office of the Privacy Commissioner [OPC] alleging that the Respondent had erred in invoking the exemptions relied on. [ 7 ] In December 2018, the OPC issued its Preliminary Report with findings and recommendations, including that some additional records should be disclosed to the Applicant. [ 8 ] On March 18, 2019, the Agency provided additional records with redactions to the Applicant. The Applicant has acknowledged receipt of approximately 793 pages of records. C.

The Application for Judicial Review [ 9 ] On March 25, 2019, the Applicant brought an Application for Judicial Review of the decision of the Delegate of the Agency in accordance with

section 41 of the Privacy Act . In his Notice of Application, the Applicant alleges that the Delegate erred by: withholding records pursuant to paragraph 12(1)(b); withholding documents pursuant to sections 26 and 27; and, fettering his/her discretion or failing to apply his/her discretion with respect to exemptions pursuant to sections 26 and 27 of the Privacy Act . D. The Public Affidavit

[ 10 ] The Public Affidavit of Ms. Patrice Bellerose was sworn on July 26, 2019. The Affidavit was served on the Applicant and the Affidavit of Service was filed in the Court on August 1, 2019. [ 11 ] In the Public Affidavit, Ms. Bellerose attests that she is the Director of the Secretariat, Registrar Services and Information Management of the Enabling Services Branch of the Agency. She attests that her responsibilities include managing the protection and release of information under the Privacy Act .

She explains that due to her role and responsibilities she has personal knowledge of the matters deposed to, or that based on her information and belief she attests that the matters deposed to are true. [ 12 ] Ms.

Bellerose’s affidavit provides a chronology of events, beginning with the Applicant’s September 2016 request for records, the Applicant’s dissatisfaction with the records that were provided to him, the Applicant’s complaint to the OPC, the OPC’s recommendations to the Agency, the Agency’s follow up to the OPC’s recommendations, including the provision of additional records previously withheld from the Applicant, and the Applicant’s Application for Judicial Review to this Court. The Affidavit attaches several exhibits, including additional records disclosed to the Applicant over the course of his request. E.

The Applicant’s Motion to Strike the Pubic Affidavit [ 13 ] The Applicant brought a motion seeking to strike out three paragraphs of the Public Affidavit, arguing that they offended Rule 81 of the Rules because two paragraphs included argument or legal opinions and one paragraph was hearsay. By Order dated October 3, 2019, the Court dismissed the Applicant’s motion.

The Court noted the principles from the jurisprudence that guide the determination of whether the impugned paragraphs should be struck, including that the discretion to strike an affidavit should be exercised sparingly and only in exceptional circumstances, i.e., where it is in the interests of justice to do so, where a party would be materially prejudiced, or where not striking an affidavit would impair the orderly hearing of the application.

The Court concluded that no such exceptional circumstances existed. [ 14 ] In the context of the motion to strike parts of the Public Affidavit, the Applicant indicated that he would not cross-examine Ms. Bellerose at all if the paragraphs at issue were struck. The Applicant expressed the view that if the paragraphs were not struck and he did not cross-examine Ms. Bellerose, he would be presumed to agree with the assertions therein.

In the October 3, 2019 Order, the Court stated that the law is clear that failure to cross-examine an affiant does not indicate acceptance of the assertions in the affidavit and that the Applicant’s choice not to cross-examine (if he makes that choice) would not lead to any deemed admission of the facts in the affidavit. F.

The Confidentiality Order [ 15 ] The Respondent sought an Order pursuant to Rules 151 and 152 for an Order that the Agency be granted leave to file a Confidential Affidavit appending the documents that had been withheld from the Applicant. [ 16 ] The Applicant agreed that the Confidentiality Order should be made, but sought different terms to the draft Order proposed by the Respondent, including that the proposed affidavit should not be subject to the Order.

Correspondence ensued between the Applicant and Respondent but did not result in an agreement. [ 17 ] The Court found that a Confidential Affidavit with confidential exhibits is necessary to ensure that the information sought to be exempted by the Agency remains protected from disclosure pending the determination of the Application for Judicial Review. [ 18 ] By Order dated September 4, 2019, the Court granted leave to the Respondent to file a Confidential Affidavit with confidential exhibits, which would consist of the documents withheld from the Applicant in response to his request for disclosure pursuant to the Privacy Act and would include unredacted versions of documents that have been provided to the Applicant with redactions. [ 19 ] In the recitals to the Confidentiality Order, the Court noted that: . . . without being aware of the contents of the affidavit proposed to be filed, which will append the exhibits that comprise the information withheld from the Applicant, it is speculative for the Applicant to argue or for the Court to find that there is no need for the affidavit to be confidential and that the affidavit should be publicly available; and noting that the Court may consider whether a redacted version of the affidavit can be provided to the Applicant and placed on the public record at a later date . . . [My emphasis] [ 20 ] On October 3, 2019, the Respondent filed the Confidential Affidavit of Ms.

Patrice Bellerose, sworn on October 1, 2019, with Exhibit A, the confidential records, in the Court under seal. [ 21 ] The Respondent then sent a copy of the Confidential Affidavit, without the confidential records included in Exhibit A, by email to the Applicant. The Respondent describes the provision of the Confidential Affidavit to the Applicant as a courtesy. The Respondent did not file an affidavit of service of the Confidential Affidavit in the Court.

The Court was not aware of the transmission of the Confidential Affidavit to the Applicant until this was noted in further correspondence to the Court in November 2019. [ 22 ] Correspondence ensued between the Applicant and the Respondent about available dates for the Applicant to cross-examine Ms. Bellerose and dates were agreed upon. On November 10, 2019, the Applicant served the Respondent by email with a Direction to Ms. Bellerose to Attend for Cross-Examination with respect to both her public affidavit and her Confidential Affidavit. The Direction to Attend also required Ms.

Bellerose to bring Exhibit A, (the confidential records) for the purpose of " “refreshing her memory” " . [ 23 ] The Respondent advised the Applicant by email that the cross-examination of Ms. Bellerose was limited to her Public Affidavit sworn on July 26, 2019, that the Confidential Affidavit had been provided as a courtesy, and that no questions would be permitted on the

Confidential Affidavit. The Respondent requested the Applicant to amend the Direction to Attend. [ 24 ] The Applicant responded that he had been " “served” " with the Confidential Affidavit and was entitled to cross-examine Ms. Bellerose on it.

The Applicant also suggested to the Respondent that Directions be sought from the Court with respect to the cross- examination. [ 25 ] On November 12, 2019, the Applicant wrote to the Registry of the Court setting out the information described above and suggesting that a Case Management Conference [CMC] be convened to address this issue before the date set for the cross-examination. [ 26 ] The Respondent replied to the Registry of the Court and to the Applicant noting that the Applicant had not been " “served” " with the Confidential Affidavit, but that a copy had been provided to him only as a courtesy, and he was not entitled to cross-examine the affiant on her Confidential Affidavit.

The Respondent indicated that a CMC was not warranted. [ 27 ] The Applicant responded, pointed to Rule 83, and argued that he was entitled to cross-examine the affiant on both affidavits because both had been disclosed to him. [ 28 ] On November 14, 2019 the Court issued the following Direction: There is no need for a CMC [Case Management Conference] to address the issue of whether the Applicant may cross- examine Ms. Bellrose [ sic ] on her confidential affidavit. The confidential affidavit was not served on the Applicant, rather it was provided as a courtesy.

Rule 83 applies to "an affidavit served by an adverse party". The Applicant may only cross- examine Ms. Bellrose [ sic ] on her public affidavit which was served on the Applicant. The Applicant should refer to the Court's Orders of September 4, 2019 and October 3, 2019 regarding the confidential motion and the scope of cross-examination more generally. Despite this direction, if the parties agree that a CMC is needed on this issue or on other issues, the Court remains available to hold a brief CMC on November 21, 2019. [ 29 ] The parties did not request a CMC at that time. II.

The Current Motion [ 30 ] The Applicant now seeks an Order to vary the Confidentiality Order and to direct that the Confidential Affidavit be placed on the public record without exhibits; that the Applicant has been served with the Confidential Affidavit; and, that the Applicant is entitled to cross-examine Ms.

Bellerose on the Confidential Affidavit. [ 31 ] In the alternative, the Applicant requests that the terms of the Court’s November 14, 2019, Direction be set out in an Order so that he may challenge its terms (relying on Peak Innovations Inc. v Simpson Strong-Tie Company, Inc ., 2011 FCA 81 , 199 ACWS (3d) 723 [ Peak Innovations ] at para 4 ). III.

The Applicant’s Submissions [ 32 ] The Applicant argues that: the Confidentiality Order should be varied in accordance with Rule 399(2) ; the Confidential Affidavit should be placed on the public record because it does not include confidential information; the Confidential Affidavit was served on him; and, that he is entitled to cross-examine Ms. Bellerose on the Confidential Affidavit. [ 33 ] The Applicant submits that the open court principle dictates that only confidential information be put in a Confidential Affidavit.

The Applicant submits that the Respondent’s argument that there is no need for him to cross-examine the Confidential Affidavit because the same or similar information is in the Public Affidavit confirms that there is nothing confidential in the Confidential Affidavit.

He adds that the Respondent has waived any confidentiality by disclosing the Confidential Affidavit to him. [ 34 ] The Applicant further submits that he is entitled to know and test this evidence as a matter of procedural fairness. [ 35 ] The Applicant suggests that there is a tension or inconsistency between the Court’s November 14, 2019 Direction and the Confidentiality Order, the latter of which noted that the Court may consider whether a redacted version of the Confidential Affidavit could be provided at a later date. [ 36 ] The Applicant further states that the Court’s Direction of November 14, 2019, which indicated that he was not served with the Confidential Affidavit and that he could not cross-examine Ms.

Bellerose on her Confidential Affidavit, was issued by the Court " “without the benefit of a full record or full arguments of the parties, declining to hold a case management conference…” " [ 37 ] The Applicant submits that the filing of the Confidential Affidavit and its disclosure to him by the Respondent constitutes a " “matter” " that has subsequently arisen within the meaning of Rule 399(2) and that the Confidentiality Order should be varied.

The Applicant further submits that the Confidentiality Order was not a final order. [ 38 ] The Applicant argues that he was " “served” " with the Confidential Affidavit and is entitled to cross-examine Ms. Bellerose on this affidavit in accordance with Rule 83. He notes that in accordance with Rules 139 and Rule 141(1) , he consented to electronic service of documents.

He argues that because the Respondent sent him the Confidential Affidavit by email, he was " “served” " in the manner to which he consented (relying on Popsockets LLC v Case World Enterprises Ltd . ( Popsockets ), 2019 FC 1154 at paras 14 , 311 ACWS (3d) 162). He argues that service is a matter of determining whether the recipient has become aware of the document, and is not based on the

intention of the sender (relying on Laquerre v Canada , 2016 FCA 62 at paras 68-71 , 263 ACWS (3d) 805 [ Laquerre ]). [ 39 ] The Applicant argues that the right to cross-examine on an affidavit is a well-established right and should only be restricted in exceptional circumstances ( Genencor International Inc v Canada (Commissioner of Patents) , 2007 FC 173 at para 26 , 156 ACWS (3d) 446 [ Genencor ]). IV. The Respondent’s Submissions [ 40 ] The Respondent submits that the Agency provided the bulk of its evidence in the Public Affidavit of Ms.

Patrice Bellerose in an effort to be as open and transparent as possible. The Agency provided a copy of the Confidential Affidavit to the Applicant as a courtesy for the same reason. [ 41 ] The Respondent notes that the Confidential Affidavit is the vehicle to provide the confidential records to the Court and explains how to identify the pages challenged by the Applicant and to identify the redactions in the documents.

The Respondent notes that the introductory paragraphs simply describe the affiant and the existence of the Confidentiality Order. [ 42 ] The Respondent submits that there is no reason for the Applicant to cross-examine Ms.

Bellerose on the introductory paragraphs or on the explanatory notes, noting that most of this information is in the Report of the OPC or in the Public Affidavit. [ 43 ] The Respondent submits that given the purpose of the Confidential Affidavit, any cross-examination on the affidavit will touch on the information included in the confidential records. [ 44 ] The Respondent submits that Rule 399(2) is not a vehicle to revisit judgments where a party is unsatisfied ( Collins v Canada , 2011 FCA 171 at para 12 , 202 ACWS (3d) 820 [ Collins ]).

The Respondent disputes that its disclosure of the Confidential Affidavit is a new matter as contemplated in Rule 399(2), or that it would have a determinative influence on the decision to issue the Confidentiality Order in the first place ( Shen v Canada (Minister of Public Safety and Emergency Preparedness) , 2017 FC 115 at paras 13-17 , 276 ACWS (3d) 180 [ Shen ] ). [ 45 ] The Respondent reiterates that it did not " “serve” " the Applicant with the Confidential Affidavit.

The Respondent submits that although the only mechanism to serve the Applicant is by email or regular mail, this does not mean that any email sent to the Applicant is " “served” " on him. V. The Confidential Affidavit Contains Information that is not Confidential [ 46 ] The Applicant has advanced several arguments in support of his overarching position that the Confidential Affidavit is not confidential. I do not agree that Rule 399(2)(

a) needs to be resorted to or that the Applicant was " “served” " with the Confidential Affidavit. However, I agree that the information set out in the Confidential Affidavit is not confidential.

The Applicant’s motion has precipitated the Court’s review of the Confidential Affidavit, which the Confidentiality Order noted would be conducted following the Court’s receipt and review of the Confidential Affidavit and in due course. [ 47 ] As the Respondent notes, the Confidential Affidavit is the vehicle to provide the Confidential Exhibits, which the Court will be required to review in the context of the Application for Judicial Review, to determine whether the Respondent correctly applied the exemptions in the Act and whether the Respondent reasonably exercised its discretion in withholding some records.

The Confidential Affidavit, for the most part, is basic information about the nature of Exhibit A (i.e. that these are the confidential documents in unredacted form), where to find the page numbers referred to in the Applicant’s Notice of Motion, and the exemptions relied on by the Agency. It also identifies certain senders and recipients of the documents, which are noted in the exhibits and unredacted, including legal counsel for the Agency.

The Confidential Affidavit will assist the Court in navigating the records in determining the Application for Judicial Review. [ 48 ] The Respondent has not argued that the content of the Confidential Affidavit is confidential, only that there is no need for the Applicant to cross-examine Ms. Bellerose on this affidavit, given that its content is simply to guide the Court in its review. [ 49 ] The Court has reviewed the Confidential Affidavit and concludes that its content is not confidential.

As a result, the Confidential Affidavit, without Exhibit A, should be served on the Applicant, filed with the Court and placed on the public record. [ 50 ] Exhibit A remains confidential and will remain under seal. [ 51 ] As an observation, the Applicant has changed his initial position, which was that he would not cross-examine Ms. Bellerose at all on her Public Affidavit if the Respondent agreed to delete three paragraphs. He now advocates that he has a right to " “test the evidence” " as a matter of procedural fairness, by cross-examining Ms. Bellerose on both affidavits.

It is not apparent how cross-examination on the Confidential Affidavit, a navigation tool for the Court, would assist the Applicant, given that he cannot cross-examine Ms. Bellerose about the Confidential Exhibits. VI. Rule 399(2)(

a) Need not be Relied on [ 52 ] Rule 399 (2)(

a) provides:

"

(2) On motion, the Court may set aside or vary an order " "

(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l’un ou l’autre des cas suivants : " " (

a) by reason of a matter that arose or was discovered subsequent to the making of the order; or " "

a) des faits nouveaux sont survenus ou ont été découverts après que l’ordonnance a été rendue; " [ 53 ] The jurisprudence with respect to Rule 399 (2) has emphasized the principle of finality with respect to decisions of the Court. The Rule should not be used as a mechanism to revisit a decision because a party is unsatisfied with the outcome.

Exceptionally serious and compelling grounds must be demonstrated to rely on Rule 399(2) ( Collins at para 12 ; Ayangma v Canada, 2003 FCA 382 , [2003] FCJ No 1522 (QL) [ Ayangma ]; Proctor & Gamble Pharmaceuticals Canada Inc v Genpharm , 2003 FC 911 at paras 17-18 , [2003] FCJ No 1172; Shen at paras 12-18 ).

The jurisprudence has also established that three conditions must be met before the Court will exercise its discretion to vary an order pursuant to Rule 399(2): the newly discovered information must be a " “matter” " with the meaning of the Rule; the " “matter” " must not be one which was discoverable prior to the making of the order by the exercise of due diligence; and, the " “matter” " must be something which would have a determining influence on the decision in question ( Ayangma , at para 3 ). [ 54 ] The Confidentiality Order was made based on the evidence and the submissions made to the Court at the time the motion was argued.

Contrary to the Applicant’s submission, it is a final order and remains in effect until further Order of the Court. [ 55 ] However, it is not necessary to determine whether the criteria of Rule 399(2)(

a) have been established. As the Respondent noted, Confidentiality Orders are not unusual in the context of Applications for Judicial Review of decisions to withhold documents pursuant to the Privacy Act . Such Orders are necessary to protect the interests at stake until the Application is determined. Moreover, the Applicant agreed that the Confidentiality Order should be issued, but disagreed with the specific wording of the terms of the Order.

Reliance on Rule 399(2) suggests that the Court should use hindsight to change a decision that would not have needed to be made in the first place had the affidavit been provided before the Confidentiality Order. In these circumstances, this would put the " “cart before the horse” " and defeat the purpose of a Confidentiality Order as well as the principle of finality and certainty. [ 56 ] The better approach in the present circumstances, which achieves the same result, is to issue a new Order with respect to the Confidential Affidavit now that the Court has reviewed the Affidavit as the Court undertook to do.

VII. The Confidential Affidavit was not Previously " “Served” " on the Applicant [ 57 ] There is no reason to doubt the Respondent’s submission that the Confidential Affidavit was sent to the Applicant as a courtesy in an effort to show transparency. The fact that the Applicant consented to accept service of documents electronically does not mean that every communication about this or other legal proceedings sent to his email address is " “served” " on him.

There is a history of extensive communication between the parties and between the parties and the Registry of the Court, which is simply correspondence as distinguished from the service of documents that are required to be served and for which an affidavit of service would be filed. [ 58 ] Laquerre , relied on by the Applicant, must be considered in its proper context.

In Laquerre , the Court of Appeal found, among other things, that the appellant was personally aware of the legal documents served on his corporation, and he could not claim otherwise; in other words, he had been served despite his arguments to the contrary. The Court of Appeal noted the jurisprudence with respect to Rule 147, which provides that the Court may validate the service of a document that has not been served in accordance with the Rules if satisfied that the document has come to the attention of the person.

Laquerre does not establish as a principle that in every case where a document comes to the attention of a party to a legal proceeding that the party has been " “served” " with that document. Rather, the Court of Appeal endorsed the application of Rule 147 and reiterated that invalid service − where service is required − can be validated where it is established that the party had notice of the document. [ 59 ] The Applicant also relies on Popsockets a t para 14 to support his argument that providing a courtesy copy of a document constitutes being served. Popsockets does not establish this principle.

Justice Southcott stated at para 14: Following expiry of the 30-day period for filing a Statement of Defence, and the dismissal of the motion for an extension of time for such filing, the Plaintiff was entitled to bring this motion for a default judgment on an ex parte basis under Rules 210(1) and (2).

However, the Plaintiff has also filed an affidavit of service sworn by Sandra Napier, a legal secretary, confirming that she served the Defendant with a courtesy copy of the Motion Record for Default Judgment by sending a copy by regular mail on July 17, 2019 to 12773 88 Ave, Surrey, British Columbia, described as the last known address for the Defendant. [ 60 ] The passage relied on by the Applicant is Justice Southcott’s finding that the defendant was served with the plaintiff’s motion for default judgment even though the Plaintiff was not obliged to serve the defendant with further documents before proceeding with the ex parte motion.

Justice Southcott’s reference to the " “courtesy copy” " being served on the Defendant does not establish that the provision of a courtesy copy of any document constitutes service of that document. In Popsockets , the plaintiff served the document and filed an affidavit of service, although service was only a courtesy. VIII. Cross-Examination is not an Absolute Right [ 61 ] To the extent that the Applicant continues to dispute the Court’s Direction of November 14, 2019, that he was not served with the Confidential Affidavit and that he could not cross-examine Ms.

Bellerose on the Confidential Affidavit, a few points should be noted. The Applicant now argues that whether or not he was served, the affidavit was filed, which provides a right to cross-examination. He

relies on the commentary on the Rules (Brian J Saunders et al., Federal Courts Practice (Toronto: Thompson Reuters, 2018)), whichstates that Rule 83 provides for cross-examination on affidavits "“filed”". However, the terms "“served”" and "“filed”" are notsynonymous. The Rules make a distinction between the two terms (see, for example, Rules 83 and 84).

Moreover, the Applicant’ssubmission suggests that there is a right of cross-examination even on confidential documents filed with the Court, which is not the case. [62] In Genencor, relied on by the Applicant, Justice de Montigny noted at paras 25-26 that the right to cross-examination is a wellestablished right and is subject to restrictions only in very exceptional circumstances. Justice de Montigny cites Hoffmann-La Roche Ltd.v Canada (Minister of National Health and Welfare) (FC), [1997] 2 FC 681, 72 CPR (3d) 362 (FC) [Hoffmann] as anauthority.

While not questioning Justice de Montigny’s statement of the law, in Hoffmann, the Court simply stated, "“where either partyfiles an affidavit there is, of course, opportunity for the opposite party to cross-examine thereon”". In Hoffmann, the Court added,"“[s]uch cross-examination is far more limited in scope than examination for discovery and, apart from questions going to the witness’credibility, is limited to relevant matters arising from the affidavit itself”". [63] More recently, the Federal Court of Appeal found that cross-examination on an affidavit is not an absolute right to ensureprocedural fairness.

In Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 at para 25, [2018] FCJ No 876, JusticeDawson concluded that oral cross-examination could be restricted after considering the scope and content of the duty of proceduralfairness in the context of the specific proceedings. Justice Dawson stated: 25 I acknowledge the importance of cross-examination at common law.

However, because the content of the duty offairness varies according to context and circumstances, the duty of fairness does not always require the right of cross-examination. [64] In the present context, it is not apparent how cross-examination on the Confidential Affidavit would be required as a matter ofprocedural fairness so that the Applicant can "“test the evidence”" given that the Confidential Affidavit merely explains to the Court howto navigate the confidential documents and given that the Applicant has already received approximately 793 pages of documents, some ofwhich are redacted.

Moreover, if an affidavit contained confidential information, permitting cross-examination would undermine thepurpose of a confidential affidavit. [65] Going forward, following service of the Confidential Affidavit and filing of that affidavit with the Court on the public record, if theApplicant contemplates cross-examination of Ms. Bellerose, the guidance of Hoffmann should be followed. Questions about theconfidential records contained in Exhibit A are not within the scope of such cross-examination. IX.

Comment on the Alternative Relief Requested [66] In the Applicant’s request for alternate relief, which need not be resorted to, he suggests that the Court issued its Direction withoutthe benefit of a full record and full argument and by declining to hold a CMC. This is not a fair statement of the chronology of events.First, there was no motion before the Court, which would require a full record or memorandum of argument from the Applicant andRespondent. Rather, there was a series of emails about an ongoing disagreement between the Applicant and Respondent.

Second, therole of the Court in case management is to address procedural matters with a view to advancing the Application for Judicial Review sothat it can be determined in a timely manner. The Direction was issued to address a procedural matter with respect to the scheduled cross-examination of Ms. Bellerose, which at that time was imminent.

Third, the Court clearly indicated that it remained available for a CMC,however, no further request was made. [67] The Applicant’s reliance on Peak Innovations suggests that a party is entitled, upon request, to convert a Direction of the Court intoan Order, in order to appeal. [68] Peak Innovations is most often cited as authority for the principle that no appeal lies from a Direction. In the brief decision, theFederal Court of Appeal stated at paras 2 and 4: 2 We are of the view that the appeal ought not to have been entertained in the first instance. The jurisprudence of this Courtis well settled.

No appeal lies from a direction: Froom v. The Queen 2003 FCA 141.

It follows that, in the circumstances ofthis matter, no costs ought to have been awarded against the appellant. […] [4] We would add that, in circumstances where counsel is uncertain regarding, or wishes to challenge, the nature of adirection arising from a case management conference, counsel is at liberty to request, on motion, a formal order which setsout the substance of the direction. [69] The Federal Court of Appeal did not provide any further guidance about when such a motion should be granted, only that a motioncould be brought, and there is little jurisprudence, to my knowledge, which has interpreted paragraph 4. [70] In Brake v Canada (Attorney General ) 2017 FC 1093, 286 ACWS (3d) 219, Justice Brown considered Peak Innovations andreiterated that a Direction could not be appealed.

Justice Brown found that the Direction was not uncertain and there were no exceptionalcircumstances to derogate from the principle that Directions cannot be appealed. Justice Brown noted at para 20: [20] I added the 4th paragraph of Peak Innovations for completeness; it is not applicable because there is neither uncertaintynor any issue with the nature of the Direction: the parties do not take issue with the nature of the Direction which is clear. [71] In the present case, the Direction is clear and there is no uncertainty, misunderstanding or issue with the "“nature of theDirection”".

The Applicant seeks the alternative relief of putting the terms of the Direction in an Order so he can appeal the Order. Asnoted above, the Direction was issued in the context of case management. The goal of case management is, as the name indicates, to

manage various procedural steps with a view to setting a date for the Application for Judicial Review to be heard and determined, which should be done in a timely manner.

The Direction indicated that a CMC could be held if the parties wished to raise other matters, but the issue with respect to cross-examination of the Confidential Affidavit was clear. [ 72 ] Moreover, if the Applicant’s goal is to have an opportunity to appeal the Court’s Confidentiality Order, the same relief would be available by appealing the Court’s Order with respect to the current motion (if the Applicant is not satisfied with the outcome). X. Costs [ 73 ] The Applicant seeks costs and/or reasonable out of pocket expenses related to the motion.

The Respondent also seeks costs, noting, among other things, the motions that have previously been brought by the Applicant in this Application, which should be a routine matter and should move forward to determine whether the records withheld should continue to be withheld in accordance with the Privacy Act . [ 74 ] Again, I decline to order costs. As noted above, the Court had undertaken to review the Confidential Affidavit after it was filed and in due course to determine whether any parts of it could be disclosed.

The Respondent’s good faith gesture of providing the Confidential Affidavit to the Applicant as a courtesy has resulted in extensive correspondence and this motion, rather than advancing the proceedings toward the scheduling of the Application for Judicial Review. ORDER THIS COURT ORDERS that : 1 . The Confidential Affidavit of Ms. Patrice Bellerose, sworn on October 1, 2019, shall be served on the Applicant, filed with the Court and placed on the public record. 2 .

The confidential records contained in Exhibit A of the Confidential Affidavit shall not be placed on the public record and shall remain under seal. 3 . No costs are awarded. "Catherine M. Kane" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-516-19 STYLE OF CAUSE: DR. GÁBOR LUKÁCS v THE CHAIRPERSON OF THE CANADIAN TRANSPORTATION AGENCY MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULES 369 AND 399(2) OF THE FEDERAL COURTS RULES ORDER AND REASONS: KANE J. DATED: December 19, 2019 WRITTEN REPRESENTATIONS BY : Dr. Gábor Lukács For The Applicant Kevin Shaar For The Respondent SOLICITORS OF RECORD :

None For The Applicant Canadian Transportation Agency Legal Services Directorate Gatineau, Quebec For The Respondent