Date: 20021203
Docket: T-750-02
Neutral citation: 2002 FCT 1253
BETWEEN:
LUC FOURNIER
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
[1] At issue here is production of various documents requested from a tribunal, one convened by the Correctional Service of Canada, relating to a decision of 17 October 2001. That decision, a final grievance determination, arose out of disciplinary action taken against the Applicant, an employee of the Correctional Service, for an apparent injury done to a fellow employee on 6 March 2000.
[2] At issue on this judicial review is neither the nature or the extent of the injury, nor how it occurred, but rather whether that decision was one which, allowing for appropriate deference to the tribunal, phrased perhaps in terms of whether such a decision was reasonably open to the tribunal, or some other similar standard, depending on where in spectrum the standard of review may be set by the presiding judge, constituted a proper decision. Therefore, while the Applicant, who formerly acted for himself, wishes both a process by which to discover material going to the merits and an ability to examine all existing material in order to determine whether he was afforded due process, only documents which were before the tribunal must be produced.
CONSIDERATION
[3] The Crown objects to production of some of the documents pursuant to Rule 318(2) and has provided a sealed package of copies of the documents which have been requested, to the extent they exist. I have looked at that material.
[4] I have also read the submissions of both counsel and have considered the documents in the record already produced by the tribunal. I am satisfied that there are only two existing documents which the Respondent has and does not wish to produce. The first is a Workers' Compensation Board report filed by the Solicitor General, Correctional Service of Canada, which appears to be dated 12 April 2000 and to which is attached a very brief unsigned paragraph, apparently drafted by the injured corrections officer, Ms Stokowski, narrating what happened on this particular occasion and several other paragraphs relating to earlier incidents unrelated to this incident involving the Applicant. The second document which the Crown has but objects to produce, is Workers' Compensation Board material dealing with rehabilitation. I will return to these documents shortly, but will first touch upon the documents which, on the material, I am satisfied do not exist.
Documents Which Do Not Exist
[5] First, the requested convening order, which I take it might have been the document which initiated the investigation and subsequent determination, is said not to exist, for rather than being an administrative investigation, what occurred was a disciplinary investigation. Thus, the only document in this area is a memorandum informing the Applicant that a disciplinary investigation would take place. The memorandum, dated 27 March 2000, has been produced. I also note that the Applicant had already made an application for the convening order pursuant to the access to information legislation and had been informed by the Privacy Commissioner that the document did not exist. I accept that no convening order or like document, other than the 27 March 2000 memorandum, exists.
[6] Second, the Applicant looks for a police report filed in early March 2000 bearing on the alleged assault and harassment. The Respondent says the material does not, to its knowledge, exist. The Correctional Service of Canada has not only never filed a police report, but also is unaware of any police report filed by Ms Stokowski.
[7] Third, the Applicant requested a copy of an investigation report of the incident provided to Labour Canada. The Privacy Commissioner's advice, that the material did not exist, is confirmed by the Respondent. However, the Respondent points out that, related to a workers' compensation claim, there was a Worker's Report, an Employer's Report and a Hazardous Occurrence Report which were sent to Labour Canada, who forwarded them to Workers' Compensation. The Hazardous Occurrence Report has been produced as part of the tribunal's record. The Employer's Report and the Worker's Report are part of the package which the Crown objects to produce.
[8] Fourth, the Applicant wishes production of documents to show the attendance of Ms Stokowski at the infirmary, and any hospital or doctor's report. The Respondent advises no document exists which shows whether Ms Stokowski attended the infirmary. However, a doctor's note, for the period 10 through 17 March 2000, was considered by the tribunal and is a part of the tribunal's record. The Respondent advises that there is also a further doctor's note, for a period in January 2000, which has also been produced as part of the tribunal's record. There are, however, subsequent medical reports which form a part of the package of documents which the Crown objects to produce: these are documents which, upon inspection, are best described rehabilitation status material dealing with the ability of Ms Stokowski to return to work.
[9] Fifth, the Applicant requests statements given by witnesses and others interviewed. The Applicant received advice from the Privacy Commissioner that the material had been destroyed. The Respondent confirms that such is the case.
[10] Finally, the Applicant wishes production of any log books containing interviews and records of meetings made by management and by investigators. The Respondent advises that it is not aware of any log books which would contain minutes, notes of interviews and meetings recorded by management and investigators.
[11] Here I would point out that Rule 317 does not permit an applicant to go on a fishing expedition for information: see Beno v. Létourneau (1997), 130 F.T.R. 183 at 190 where Mr Justice Mackay sets out the proposition that the predecessor rules, to Rules 317 and 318, "... are not intended to prolong summary proceedings or to permit a 'fishing expedition' for intervention" and then goes on to refer to various case authorities. An Applicant pursuing additional documents, following a Rule 317 production, ought to have at least some reasonable evidence as to what should or might exist. To request documents which the Privacy Commissioner has said do not exist is, to a degree, abusive.
Documents Produced for Inspection and Rule 318 Determination
[12] I now turn to the package of documents produced by the Crown for inspection and a Rule 318 determination as to production. The basic proposition is that only documents which were actually before the decision-maker, when the decision was made, need to be produced: see for example 1185740 Ontario Ltd. v. Canada (Minister of National Revenue) (1999), 247 N.R. 287 (F.C.T.D.) at 289 and Hiebert v. Price (1999), 182 F.T.R. 18 (F.C.T.D.) at 21 and 22. Certainly, a request to a tribunal, to produce documents, is not discovery of documents: see Canada (Attorney General) v. Canada (Information Commissioner) (1997), 135 F.T.R. 254 (F.C.T.D.) at 266, a decision of Mr Justice MacKay.
[13] I turn first to the package of standard form Workers' Compensation material, specifically the Employer's Report and the Worker's Report, together with a typed comment on the incident in question and on an earlier unrelated incident. The Employer's Report dated 12 April 2000 contains nothing that is either interesting or relevant and, as I say, it was not before the tribunal. The Worker's Report contains a brief three-sentence narrative. While it is itself undated, it appears from an attachment to have been filed 14 March 2000. The first sentence of the narrative sets out a time and a place for the incident; the second, in even-handed terms, the accident; and the third, the result. Attached to the Worker's Report is a nearly as brief narrative, the addition being a reference to a date of an attendance, by Ms Stokowski on her doctor and advice as to taking time off work to recuperate. Not only was this package not before the tribunal, but also nothing in the material is relevant. Here I measure relevance as did the Court of Appeal in Pathak v. Canadian Human Rights Commission (1995), 180 N.R. 152 at 154 (F.C.A.), the applicable measure of relevance being whether the material might affect the decision of the court:
| 10 A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the applicant, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the applicant.
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The material contained in the first package, in the light of the documents in the tribunal's record and compared with and in the context of the order made by the tribunal, is merely corroborative of a small portion of the evidence which was before the tribunal. That the first package is irrelevant is not a reason for refusing to produce it, but rather an observation offered as a reassurance to Mr Fournier: the reason that the material will not be produced is that it was not before the tribunal.
[14] The second package contains, as I have already said, Alberta Workers' Compensation Board material of August and September 2000, dealing with occupational rehabilitation. Not only was it not before the tribunal, but also, it is completely irrelevant as to whether or not the Applicant pushed a desk into Ms Stokowski's knee and the actual injury. Again, it is material which need not be produced.
CONCLUSION
[15] The documents which the Crown objects to produce, not having been before the tribunal, need not be produced. However, even were the Court to return this matter to a new grievance tribunal and somehow those documents found their way before the tribunal, they ought, as a matter of law, to have no effect on the result.
[16] The Respondent submits that the Applicant ought to be penalized in costs for abusing the process of the Court, specifically, seeking to find the documents which the Privacy Commissioner has already said did not exist, thus forcing the Respondent to again establish a negative. Further, the Applicant, in his initial material, apparently prepared before he retained counsel, seemed to be taking aim at the merits of the case, not at the propriety of the tribunal's decision. The Applicant, in material subsequently prepared by counsel, has backed away from the merit determination position, merely saying that he seeks disclosure all medical and relevant information relating to Ms Stokowski's complaint, excluding that which is clearly not connected with or which has no bearing on the alleged knee injury and that he "... must be provided the opportunity to examine the evidence to discover whether he was afforded due process.". Again, this is not the test. It is not for the Applicant to decide whether he was properly treated, but rather for the Court, upon judicial review, to decide whether, on the basis of material before it, the tribunal's decision ought to stand.
[17] Returning to the concept of costs, it is proper to award the Respondent the costs of this motion, in any event, taxable mid-range in column IV of Tariff B and payable at the conclusion of the proceedings.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 December 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-750-02
STYLE OF CAUSE: Luc Fournier v. The Solicitor General of Canada
REASONS FOR ORDER : Hargrave P.
DATED: 3 December 2002
APPEARANCES:
Melodi E. Ulku for the Applicant
Rick Garvin for the Respondent
SOLICITORS OF RECORD:
Bishop & McKenzie LLP for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent