Federal Court

Administrative Law

Dismissal of motion for production upheld on appeal

Applicant, professor of sociology and criminology doing research on Correctional Service Canada Review Panel, submitted request under Access to Information Act for documents related to panel from respondent, Public Safety Canada. Among other things, he sought panel’s work plan, budget, information regarding appointment of members and information regarding members’ refusal to be interviewed by him. Public Safety Canada responded there were no relevant records. Applicant made complaint to Information Commissioner of Canada. Commissioner investigated and confirmed thorough search had been conducted and there were no relevant records. Commissioner suggested applicant submit request for information to Correctional Service Canada. Instead, applicant brought application for judicial review. Applicant then brought motion under R. 317 of Federal Courts Rules for production of all documents related to creation, supervision and responsibility for work of panel. Motion denied as attempt to obtain same information requested in access to information request which respondent had already denied possessing. Applicant brought motion for reconsideration which was denied. Applicant brought appeal which was dismissed. Following cross-examination of respondent’s representative, applicant brought motion for issuance of subpoena duces tecum to compel production of certain notes and respondent’s entire access to information file. Motion denied on basis, among other things, issue had already been decided. Applicant brought motion for leave to appeal. Motion denied. Decisions by prothonotaries not to be disturbed unless they raised question vital to final issue in proceeding or order made clearly wrong in sense that exercise of discretion based upon wrong principle or misapprehension of facts. This court had already decided matters of document production and discovery not vital to final outcome of case. Prothonotary had, however, erred in finding that documents for which production sought same as those sought earlier. While there was some overlap, they were not identical with result res judicata did not apply. Exercising discretion de novo, however, motion should still be denied on basis applicant really seeking contents of tribunal record which had already been produced or should be subject of motion under R. 317 and R. 318. Prothonotary had made no error in deciding applicant had failed to follow R. 91 with respect to direction to attend, that subpoena procedure under R. 41 was not available in context of judicial review or in adopting portion of respondent’s representations, qualifying motion as fishing expedition, as his own.

Yeager v. Canada (Department of Public Safety and Emergency Preparedness) (Aug. 17, 2015, F.C., Denis Gascon J., File No. T-91-09) 257 A.C.W.S. (3d) 502.

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