Date: 20030829
Docket: A-692-02
A-687-02
Citation: 2003 FCA 324
CORAM: STRAYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Respondent/Appellant on Appeal
and
WILLIAM J. BALTRUWEIT
Applicant/Respondent on Appeal
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent
AND BETWEEN
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondent/Appellant on Appeal
and
WILLIAM J. BALTRUWEIT
Applicant/Respondent on Appeal
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] This is a motion by the respondent Baltruweit ("the respondent") for an order allowing the respondent to file new evidence on the appeal, to file an "amended factum of no more than forty (40) pages or a supplementary factum of no more than ten (10) pages" and an order permitting the Attorney General of Canada and the Canadian Human Rights Commission similarly to file amended or supplementary factums. It is clear from the grounds stated for the motion that the respondent wishes to raise new issues in his proposed amended or supplementary factum to which the other parties could respond in their new material.
[2] On November 4, 1998 the respondent filed a complaint with the Canadian Human Rights Commission ("CHRC") alleging that his former employer, the Canadian Security Intelligence Service ("CSIS") had discriminated against him by refusing to allow him to return to work after a period of illness without being examined by CSIS' own doctor. On October 15, 2001 the CHRC had concluded that an inquiry by the Canadian Human Rights Tribunal was not warranted and his complaint was therefore dismissed. On November 14, 2001 the respondent filed an application for judicial review of that decision. In response to that application the CHRC issued a certificate pursuant to Rule 317 listing and providing all the material that was before the CHRC when it made its decision
with the exception of the legal opinion dated May 7, 2001 for which solicitor-client privilege is claimed . . . .
This certificate was issued on November 30, 2001.
[3] The hearing of the respondent's application for judicial review was scheduled to take place on September 9, 2002. However, when the matter came on for hearing before Gibson J. on that date it appeared that "only a few days before" the respondent's counsel had advised counsel for the other parties that he intended to raise a new issue nowhere mentioned in the notice of application for judicial review, namely that there had been a breach of procedural fairness by the CHRC because it had had before it the legal opinion referred to in the certificate of November 30, 2001, an opinion which had not been shown to the respondent with the result that the respondent had not had the opportunity to respond to anything in that opinion. Because of this new issue being raised at this late date, counsel for the other parties asked for additional time to prepare supplemental memoranda of fact and law. This was granted to them, and Gibson J. adjourned the hearing to October 28, 2002.
[4] At that hearing a number of grounds of attack were urged by counsel for the respondent but Gibson J. dismissed, or declined to decide, all but one: namely whether solicitor-client privilege protected the legal opinion in question or whether that privilege should be attenuated or ignored in the interest of procedural fairness. He concluded that the privilege should not have precluded some disclosure in relation to the legal opinion. I deduce from the reasons of the learned applications judge (paragraph 35) that he deemed it would have been sufficient disclosure if the CHRC had advised the respondent that it had sought a legal opinion, and told him the substance of the question referred to legal counsel. Such information should have been combined with an assurance that the opinion was sought on the basis of all the material that eventually went before the CHRC and nothing more. Gibson J. therefore set aside the decision of the CHRC and referred the matter back for redetermination. Unfortunately I could not find his order in the material filed by the parties but I deduce from all that has been said about it that the order simply required a redetermination in accordance with the reasons. Those reasons were issued on November 19, 2002. The Attorney General of Canada filed an appeal from that decision on behalf of CSIS on December 19, 2002 and the CHRC filed an appeal on December 16, 2002.
[5] In the meantime it appears that the CHRC set about to comply with the order of Gibson J. by commencing a redetermination. On January 28, 2003 it advised the other parties by letter that it would redetermine the respondent's case. The letter stated as follows:
The Commission will redetermine Mr. Baltruweit's case. In so doing, the Commission will consider any submissions that Mr. Baltruweit or CSIS wishes to submit on the substance of the question referred to legal counsel and which the legal opinion in this file addressed. Counsel for the Commission was asked to provide a legal analysis as to whether further inquiry by the Tribunal was warranted. In answering this question, counsel identified the following issues:
· whether CSIS discriminated against the complainant by requiring him to attend a health evaluation and by terminating his employment following his failure to comply; and
· whether the respondent's policy to require employees, returning to work, after a period of sick leave, to undergo a health evaluation by its own physician is discriminatory.
The Commission hereby affirms that the legal opinion was based only on the material that went before the Commissioners.
As a result of this notice, there ensued a flurry of submissions in respect of the redetermination by all parties, contained in some six letters exchanged between January 28 and March 24, 2003.
[6] In the meantime on May 20, 2003 the respondent filed a factum in response to the appeals by the Attorney General of Canada and the CHRC against the decision of Gibson J. As far as I can ascertain, there is no mention in the factum filed on May 20, 2003 of recent events commencing on January 18, 2003 with the notice from the CHRC of a redetermination. This is not surprising since the appeal before this Court has to do with the question of whether Gibson J. made any reviewable error in his decision of November 19, 2002.
[7] Nevertheless, on August 12, 2003 the respondent filed this motion for an order authorizing him to file new evidence on the appeal. Such evidence would consist of the notice of January 28, 2003 from the CHRC with respect to the redetermination plus all of the submissions made by the various parties with respect to that redetermination. If such leave is granted, the respondent requests more time for all the parties to file new or supplementary factums taking into account the January 28, 2003 notice together with everything that the parties have said about it in their respective submissions to the CHRC since that date in respect of the redetermination. The relevant paragraphs of the grounds for the motion (at least as conceived at the time of the filing of the notice of motion) appear to be as follows:
18. That the letter of January 28, 2003 to counsel for the Applicant/Respondent is prima facie evidence of improper delegation as it shows that counsel was asked to provide an opinion on the ultimate issue to be decided by the Commission;
19. That pursuant to the audi alteram partem rule the Applicant/Respondent is entitled to sufficient information to allow him to participate meaningfully in the hearing process;
20. That the submissions to the Commission are evidence of further proceedings in this case;
21. That the letter from Clayton Ruby to the Commission dated February 28, 2003 conclusively demonstrates that the Appellant/Respondent was able to participate meaningfully in the hearing of his complaint only once the substance of the legal questions posed to counsel was disclosed; . . . .
[8] The respondent submits in support of this motion to allow new evidence, and to allow material arguing new issues based on this evidence to be put before the Court of Appeal, that he meets the well-known requirements for the admission of new evidence, or else that those requirements can be ignored where "special circumstances" exist. The normal requirements for the admission of new evidence on appeal are: that the evidence could not with reasonable diligence have been discovered before the end of the hearing appealed from; that the evidence is credible; and that if admitted it would be particularly conclusive of an issue on the appeal (Frank Brunckhorst Co. v. Gainers Inc. [1993] FCJ No. 874 (C.A.)). In my view the new evidence proposed here does not meet these requirements. With respect to the description of the legal opinion which the respondent seeks to have in evidence by means of introduction of the letter from the CHRC of January 28, 2003, this whole issue could with reasonable diligence have been addressed before the matter ever came before the applications judge. The CHRC in its certificate under Rule 317 clearly signalled that there was a legal opinion for which it claimed solicitor-client privilege. Where a tribunal objects to disclosing a document under Rule 317, the Court can, on its own motion, or at the request of a party, hold a hearing under sub-rules 318 (2)-(4) to determine the validity of that objection. It is important that this procedure be followed at the outset before the parties prepare their own materials for filing. A party should not wait until a few days before the hearing of the application for judicial review to take issue with the non-disclosure of a document by the Tribunal. In effect the respondent here is seeking, through a motion for inclusion as evidence of a description of the disputed legal opinion, to resolve the issue which should have been resolved in late 2001 or early 2002 after the filing of the CHRC's certificate on November 30, 2001 as to whether the legal opinion or a description of it along the lines of the January 28, 2003 letter should have been available to the respondent and the judge in the judicial review now under appeal. For this reason alone the Court's discretion should be exercised against him. If, however, he later seeks judicial review of the redetermination by the CHRC, presumably the material in the letter of January 28, 2003 will form part of the record provided under Rule 317.
[9] With respect to the other "new facts" in the form of the submissions submitted on the redetermination process, these are neither evidence nor are they automatically relevant to the issues raised on appeal. The issues raised on appeal have to do with whether Gibson J. committed any error in the making of his decision on November 19, 2002. On May 20, 2003 the respondent has already filed, as he was obliged and entitled to do, a factum concerning the issues in the appeals from that decision.
[10] For similar reasons I am unable to conclude that any of the alleged new evidence sought to be introduced could be regarded as practically conclusive of any issue on the appeals. The appeals essentially involve the interrelationship between the requirements of fairness and the proper scope of solicitor-client privilege, together with some consideration of the concept of "deliberative secrecy". They very much involve the specific reasoning of the applications judge in relation to the material before him. I find it difficult to understand how the addition of material prepared after his decision for the purposes of the redetermination process ordered by the judge - material that was not before him - and the voluminous submissions made by the parties in respect to that material, can be conclusive of the issues in these appeals from his original decision.
[11] Nor has the respondent shown what "special circumstances" exist here to put aside the general jurisprudence of this Court with respect to the criteria for the admission of new evidence.
[12] The new issues on which the respondent seeks to make submissions are essentially: that there was improper delegation by the CHRC to counsel when counsel was asked for a legal opinion concerning the complaint of the respondent; and that by not knowing the substance of the legal questions put to, and answered by, counsel he was denied the opportunity to participate meaningfully in the hearing process. To the extent that these arguments properly arise out of the proceedings before the applications judge (and I make no finding in that respect at this stage) it appears to me that they have been dealt with in the factum filed by the respondent on May 20, 2003. To the extent that they arise out of anything which has happened since that decision I believe that, for the reasons set out above, they are not pertinent to the current appeals in this Court.
[13] The motion will therefore be dismissed with costs.
(s) "B.L. Strayer"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-692-02 - A-687-02
STYLE OF CAUSE: The Attorney General of Canada v William J. Baltruweit v The Canadian Human Rights Commission
The Canadian Human Rights Commission v William J. Baltruweit and The Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE STRAYER
DATED: August 29, 2003
WRITTEN REPRESENTATIONS:
Andrea Wright FOR THE CANADIAN HUMAN
Ottawa, Ontario RIGHTS COMMISSION
Monika Lozinska FOR THE ATTORNEY GENERAL OF CANADA
Ottawa, Ontario
Breese Davies/Clayton Ruby FOR THE RESPONDENT
Toronto, Ontario WILLIAM J. BALTRUWEIT
SOLICITORS OF RECORD:
Legal Services FOR THE CANADIAN HUMAN
Canadian Human Rights Commission RIGHTS COMMISSION
Morris Rosenberg FOR THE ATTORNEY GENERAL
Deputy Attorney General of Canada OF CANADA
Ruby & Edwards FOR THE RESPONDENT
Toronto, Ontario WILLIAM J. BALTRUWEIT
FOR THE RESPONDENT