A-333-92
The Minister of National Revenue (Appellant)
v.
United Terminals Limited (Respondent)
INDEXED AS: UNITED TERMINALS LTD. v. M.N.R. (CA.)
Court of Appeal, Mahoney, Stone JJ.A. and Gray
D.J.—Toronto, June 12, 1992.
Practice — Discovery — Examination for discovery —
Appeal from Trial Judge's orders, in action, arising out of
issue of licence for sufferance warehouse, ordering M.N.R. or
named official to attend to be examined for discovery, and
named official to attend to be cross-examined on affidavit of
documents sworn by him and filed on behalf of M.N.R. —
Appeal dismissed — No rule of law exempting "federal board
commission or other tribunal" (M.N.R.), party to action, from
discovery — Though Minister of Crown not lightly to be
required to make discovery, open to Trial Judge to conclude
imposition on valuable ministerial time warranted herein as
case extraordinary within meaning of CAE Industries Ltd v.
The Queen — Also open to Trial Judge to conclude rule of
deliberative secrecy of administrative tribunal ought to be
lifted in circumstances.
Crown — Practice — Minister of Crown can be ordered to
attend to be examined for discovery in action in which party —
Evidence Minister personally issued sufferance warehouse
licence against officials' advice to do so unlawful — Open to
Trial Judge to conclude imposition on valuable ministerial
time warranted as case extraordinary within meaning of CAE
Industries Ltd. v. The Queen — Also open to Trial Judge to
conclude rule of deliberative secrecy of administrative tribunal
ought to be lifted in circumstances.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 24.
Customs Sufferance Warehouses Regulations, SOR/86-
1065, s. 3(3).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by
S.C. 1990, c. 8, s. 1), 18(3) (as enacted idem, s. 4),
18.4(2) (as enacted idem, s. 5).
Federal Court Rules, C.R.C., c. 663, R. 1601 (2) (as
enacted by SOR/92-43, s. 19).
CASES JUDICIALLY CONSIDERED
APPLIED:
CAE Industries Ltd. v. The Queen, [1977] 1 F.C. 380;
(1976), 69 D.L.R. (3d) 153; 13 N.R. 502 (C.A.); Québec
(Commission des affaires sociales) v. Tremblay, No.
21651, judgment dated 16/4/92, S.C.C., not yet reported.
APPEAL from Trial Division orders as to discov
ery, dated March 3, 1992, requiring (1) that the
defendant Minister of National Revenue or a named
official attend to be examined for discovery and (2)
that a named official attend to be cross-examined on
the affidavit of documents sworn by him and filed on
behalf of the Minister of National Revenue. Appeal
dismissed.
COUNSEL:
Roslyn J. Levine and Robert F. Goldstein for
appellant.
Christopher Du Vernet and Ernest A. Du Vernet,
Q. C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appel
lant.
Du Vernet, Stewart, Fenn, Toronto, for respon
dent.
The following are the reasons for judgment of the
Court rendered orally by
MAHONEY J.A.: This appeal is from two orders as to
discovery made March 3, 1992, in an action, not an
application for judicial review, in which the Minister
of National Revenue is the defendant. The orders
required (1) that the Honourable Elmer MacKay,
sometime Minister of National Revenue, or in cir
cumstances set out, the Honourable Otto Jelinek,
presently Minister of National Revenue, or, in further
circumstances set out, a named official of the Depart
ment, attend to be examined for discovery on behalf
of the defendant and (2) that a named official attend
to be cross-examined on the affidavit of documents
sworn by him and filed on behalf of the defendant.
The principal argument, pertinent to both orders, is
that the defendant, being "a federal board, commis-
sion or other tribunal" as defined in the Federal
Court Act [R.S.C., 1985, c. F-7, s. 2 (as am. by S.C.
1990, c. 8, s. 1)], is not, as a matter of law, required
to make discovery in an action to which it is party. It
is said that the action is, in essence, an application for
judicial review although necessarily brought by way
of an action, as the Rules of Court [Federal Court
Rules, C.R.C., c. 663] then required, because of the
injunctive relief sought. The appellant notes that,
with the coming into force of subsection 18(3) [as
enacted idem, s. 4] of the Federal Court Act, on Feb-
ruary 1, 1992, the relief sought can now only be
sought by application and not by action.
However, the simultaneously proclaimed subsec
tion 18.4(2) [as enacted idem, s. 5] provides:
18.4...
(2) The Trial Division may, if it considers it appropriate,
direct that an application for judicial review be treated and pro
ceeded with as an action.
and Rule 1601(2) [as enacted by SOR/92-43, s. 19]
now provides:
Rule 1601... .
(2) Where the Trial Division, under subsection 18.4(2) of the
Act, directs that an application for judicial review be treated
and proceeded with as an action, the rules relating to actions
shall apply in respect of the application.
There is, and was at the time the orders were made,
clearly no rule of law exempting a tribunal, party to
an action, from discovery. That said, a tribunal per
se, and a Minister of the Crown is not lightly to be
required to make discovery.
The action arises out of the issue of a licence for
the operation of a sufferance warehouse. The Cus
toms Actl provides:
24. (1) Subject to the regulations, the Minister may, where
he deems it necessary or desirable to do so, issue to any person
qualified under the regulations a licence for the operation of
any place
(a) as a sufferance warehouse for the examination of
imported goods that have not been released,
1 R.S.C., 1985 (2nd Supp.), c. 1.
The Customs Sufferance Warehouses Regulations
[SOR/86-1065] provide:
3....
(3) The Minister shall not issue a licence to an applicant
unless he is satisfied that
(d) the volume and nature of business in the area in which
the applicant proposes to operate a sufferance warehouse is
such that a sufferance warehouse is needed to serve the
importers in that area;
There was evidence, which the learned Trial Judge
was entirely entitled to accept, that although the deci
sion whether or not to issue a licence is ordinarily
delegated to an official, the then minister, the
Honourable Elmer MacKay, personally directed that
tenders for a licence be invited notwithstanding the
advice of his officials that to issue one would contra
vene paragraph 3(3)(d). The licence was issued
shortly thereafter by the Honourable Otto Jelinek
who had, in the interval, succeeded to the portfolio.
We are all of the view that it was open to the Trial
Judge to conclude that this is an extraordinary case
within the contemplation of CAE Industries Ltd. v.
The Queen, 2 in which an imposition on valuable min
isterial time is warranted. We are further of the view
that it was open to him to conclude that the rule of
deliberative secrecy of an administrative tribunal
ought to be lifted in the circumstances. 3
It follows that we have not been persuaded that the
Trial Judge erred in law or followed a wrong princi
ple in making either of the orders. The appeal will be
dismissed with costs.
2 [1977] 1 F.C. 380 (C.A.), at p. 386.
3 c.f. Québec (Commission des affaires sociales) v. Trem-
blay, decision of the Supreme Court of Canada dated April 16,
1992, No. 21651, not yet reported.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.