Discovery of Documentary Evidence
   
An application for judicial review of a Commission decision to dismiss a complaint under subsection44(3)(b)(i) gave rise in a recent case to a preliminary motion regarding production of a wide range of documents.¹⁸¹ The Motion was brought under Rule 317 of the Federal Court Rules that provides that Aa party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested."¹⁸² The applicant requested all notes, documents, memorandum and any materials whatsoever relevant to her complaint. Her request was so broadly phrased that it covered essentially all material of any sort that the investigator had compiled or used during the course of the investigation.

Whether documents requested under Rule 317 are relevant is determined by reference to the grounds raised in an application for judicial review. In this particular case, the grounds raised covered jurisdictional issues, unsupportable findings of fact, legal error, failure to observe procedural fairness and acting on the basis of perjured evidence. The test of relevancy in the context of Commission decisions taken under the CHRA had been reviewed extensively in an earlier Federal Court decision (Pathak)¹⁸³ and was relied on by the Commission in the instant case to object to the scope of the applicant's Motion for production. The Court recognized in Pathak that the Commission is authorized to make its decisions on the basis of a report prepared by an investigator, that the law presumes the report accurately summarizes the evidence, and that this presumption must be taken into account when applying the test of relevancy. Thus, in the absence of any evidence that an investigator's report is inaccurate or incomplete, other documents relied on when preparing the report (but unseen by the Commission) do not have to be produced under Rule 317.¹⁸⁴ 

Despite the findings in Pathak, the Court in the instant case (where the Commission's decision was made exclusively on the basis of the investigator's report) concluded that the materials sought by the applicant were relevant to the grounds set out in the application. Though not specifically stated, one can only presume that the Court considered that allegations of fraud and false testimony might justify a request for some of the documents included in the Motion for production. Nevertheless, as the Motion was so broadly phrased as to bring within its scope any and all materials used in the investigation, the Court concluded that it must fail as amounting to a Afishing expedition@¹⁸⁵ into the files of the Commission. In this regard, it quoted with approval from a previous Federal Court decision: AIt is long settled that judicial review proceedings are summary in nature, with no discovery or written pleadings, and the rules relating to those proceedings, including Rules 1612 and 1613 [now rules 317 and 318], are not intended to prolong summary proceedings or to permit a Afishing expedition@ for information.@¹⁸⁶ While the applicant's Motion was rejected because it was too vague and ambiguous, the Court nonetheless indicated that a subsequent Motion which was more specific and focused might be looked upon with greater favour.

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End Notes