In a recent favourable outcome the British Columbia (BC) Court of Appeal affirmed the rights of applicants for judicial review to receive the complete record of a proceeding. Mélanie Power and Ryan Bernard of Dentons Canada LLP acted on behalf of the respondents, who successfully resisted the province’s appeal on all but one limited issue. In British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310, the Court of Appeal confirmed that the documents to be produced by the province on an application for judicial review of a cabinet decision are all those that were directly before cabinet. The decision is particularly relevant to those operating in regulated industries, because regulatory changes are often determined by Cabinet, by way of regulatory amendments. Litigants will be able to point to this decision to challenge the disclosure made by decision makers going forward to ensure the complete record is produced, and as a basis for further disclosure arising from that record if needed.
Background
On November 26, 2021, the Province issued Order in Council No. 639/2021 (the OIC) under the Animal Health Act,[1] with the objective of phasing out mink farming by 2025. The effect of the OIC was the immediate end to the mink farming industry in BC.
On February 15, 2022, a group of mink farmers and industry associations (the Mink Farmers), filed a petition for judicial review of the OIC. The petition challenges the OIC on the basis that it is: outside the Province’s jurisdiction; unreasonable; motivated by an improper purpose (to appease anti-fur groups); and procedurally unfair, among other things. The Lieutenant Governor in Council and the Attorney General of British Columbia (collectively, the Province), oppose the petition and, in their responding materials, refused to produce the entirety of the record that was before cabinet in making the decision to phase out mink farming.
The Mink Farmers brought an application in BC Supreme Court seeking an order for production of the complete record that was before cabinet. Justice Milman allowed the document production application in part, ordering the Province to identify the documents that were “directly or indirectly considered by cabinet” in making the decision to phase out mink farming.[2] The Province appealed the order.
The appeal decision
On appeal, the Province argued that the relevant record on judicial review is defined by, and limited to, the permissible grounds of review.[3] Justice Harris rejected this submission, holding that “the general rule is that what was before the decision maker is the record, and should be produced for judicial review, without a judge parsing the available grounds of judicial review to predetermine the potential relevance of certain material.”[4] Justice Harris concluded that limiting the record by reference to permissible grounds of review is only available in the limited context of a Bodner application, in which the court is called upon to review governmental decisions about judicial compensation.[5]
On the other hand, Justice Harris agreed with the Province that Justice Milman erred by ordering the identification of documents and other materials that were indirectly considered by cabinet.[6] According to Justice Harris, this was an “unwarranted expansion of the record”; however, the Court did note that this finding did not preclude a further production application if necessary.[7]
In the result, Justice Harris confirmed the order requiring the province to list all the documents that were directly before cabinet when the decision to phase out mink farming was made, but not including documents that were indirectly before cabinet. The province is seeking leave to appeal this decision to the Supreme Court of Canada.
Conclusion
In this decision, Justice Harris provides useful guidance to applicants for judicial review regarding what constitutes the record that government must produce and the correct procedure for seeking evidence extraneous to the record. This decision also demonstrates that when bringing an application for judicial review, it is important to consider a litigation strategy that is appropriate for the type of administrative decision being reviewed and the possible options to obtain further information.
If you have any questions about this decision and how it impacts your business, or about document production obligations on judicial review generally, please reach out to the authors, Mélanie Power and Ryan Bernard.
[1] S.B.C. 2014, c. 16.
[2] Canada Mink Breeders Association v British Columbia, 2022 BCSC 1731 at paras. 38-39.
[3] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at para 3.
[4] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at para 26.
[5] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at para 27.
[6] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at para 29.
[7] British Columbia (Lieutenant Governor in Council) v. Canada Mink Breeders Association, 2023 BCCA 310 at paras 29 and 74.
