Important Federal Court and Federal Court of Appeal Process Ruling in Kinder Morgan Litigation

The Federal Court of Appeal has made an important ruling concerning the processes for obtaining and presenting evidence in consultation cases in the Federal Court and Federal Court of Appeal. In Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 the various First Nations challenging the approval of Kinder Morgan’s Trans Mountain Pipeline expansion brought applications seeking more evidence about the Cabinet decision making process. These nations had delivered demands under Rule 317 of the Federal Court Rules demanding production of information material to the decision-making process that was before the decision maker but not in the possession of the applicants. In response to this demand the Attorney General provided a certificate under s. 39 of the Canada Evidence Act asserting cabinet confidence over the material it identified. The Tsleil-Waututh Nation challenged the adequacy of the Section 39 Certificate and demanded the production of further information under Rule 317. Stratas JA dismissed the motions.

Obtaining Evidence versus Presenting Evidence

Stratas JA clarified an important aspect of the Federal Court’s practice with respect to any record produced under Rule 317. While the court in general reviews the challenged government decision based on the “record”, Rule 317 is not a means of producing a record that is then simply put before the court. Instead, Rule 317 is a means of producing part of the record to the applicant and the applicant then puts this evidence in front of the court as a part of an affidavit. Fundamentally, affidavits remain the primary means of putting evidence before the court – supplemented by cross-examination and in rare cases subpoenaed evidence – and Rule 317 is merely a means of obtaining that evidence. This is to be contrasted to the practice in other jurisdictions (particularly Ontario) where the decision-maker has an obligation to produce the “record” and that record is put before the court.

Section 39 Certificates

Stratas JA held that the Section 39 Certificates that had been produced were sufficient and refused to go behind them. He held that the usual rules that had been described by the Supreme Court of Canada applied and the descriptions of the documents provided by the Clerk were sufficient to establish cabinet confidentiality. This was not a case where there was any allegation of bad faith or misconduct in the issuance of the certificate so having made this finding the court went no further in its analysis.  The court did mention (at paragraph 54) however that it was open to a court to possibly draw an adverse finding against the government if it asserted privilege over a clearly important document and potentially limited the ability of the court to review the issue.

Rule 317 Production

Stratas JA declined to order further production under Rule 317. The applicants made reasonably wide ranging demands for a variety of internal government documents, largely in the nature of inter or intra-departmental documents developed in the period leading up to the decision. While not categorically prohibiting the use to Rule 317 as a means of obtaining such documents in other proceedings, the court that given the available evidence of what the cabinet did consider (mainly the reasons given in the gazette notice of the decision), the applicants had cast the net too wide in this case. In coming to this conclusion the court relied heavily upon the nature of the proceeding as an application for judicial review. The court noted that these review proceedings were intended to be carried out in a timely and summary matter and were not created with a view to having extensive examination for discovery in advance of hearing. As such the court seemed to be concerned that the requests made in this case amounted to a form of examination for discovery and so declined to grant the motions holding that some of these issues could be pursued further in cross-examination.

Lessons Learned

This case highlights the critical importance of building a strong record of information requests in the course of consultation. Given that the court appears to be reluctant to allow its processes to be used for this purpose, it may be more productive to build as many of these requests as possible into the consultation process. In this way the obligation to be responsive may arise not from the rules of court but instead from the more general obligation to be responsive as a part of consultation. The failure to respond in this context may also help build the case for the drawing of an adverse finding in the event that the government later asserts cabinet confidence.

Additionally, it now seems that it may be necessary to be more aggressive about making access to information requests in the course of consultation, provided that there is a sufficiently lengthy time lapse between the beginning of the consultation process and the making of the decision. This may be a particularly useful tool where there is a genuine concern that the government may have made an early decision and is really just going through the motions in conducting consultation. This will rarely be a useful tool where the goal is (as was the case in this instance) to get at the deliberations after consultation but before the decision.

Finally, this case highlights exactly how crucial it is to manage consultation from the earliest possible stage. The onus will lie on the applicant to adduce the record through affidavit evidence and potentially cross-examination. Applicants will not be able to rely upon being able to reconstruct the record after the fact by means of Rule 317 applications. Instead it will be crucial to ensure that communications between the First Nation and the Crown are carefully thought out, positions clearly stated, necessary information provided, questions asked, follow-up sent and all of this tracked. If this is done properly it will set the stage for providing an effective record to the court which will in turn put real pressure on the Crown to be forthcoming in the production of evidence.