Facts: The defendants brought an application for the order for inspection and production of all records in possession of DFO relating to authorization of the Prince Rupert Fairview Terminal Phase II Northern Expansion (the “Project”) and the federal assessment process under the Canadian Environmental Assessment Act 1992 from March 2008 through to 31 December 2013. The defendants/applicants also sought production of records in possession of DFO relating to the Fisheries Act authorization from 1 January 2014 to 5 November 2014. The types of documents requested included notes and memoranda, reports and articles, policies, notes to file, presentations, telephone and email calls between DFO staff. The underlying charges stemmed from marine dredging of intertidal and subtidal habitat for the Project which resulted in the death of some fish, an offence under s. 35(1) of the Fisheries Act. Although the defendants received an authorization to undertake the Project, that authorization did not explicitly allow for the killing of fish. It was contended by the defendants that DFO had considered the expected impact of potential fish mortality in granting the authorization. As such the defendants sought these documents to assist the Court in interpreting the authorization and whatever DFO examined for making its determination of the same.
Decision: Application allowed, in part.
Held: It was ultimately agreed by all parties that the application must meet the test for disclosure as was laid down in R v. O’Connor  4 S.C.R. 411 and therefore it was held an applicant seeking third party disclosure must show by evidence or information that the documents sought will likely be relevant to a material issue at trial. Based on the Court’s review of the application for disclosure it was held that the defendant Port was in possession of many, if not all, of the documents that range from 1 March 2008 to 31 December 2013. It was further held that it was “pure speculation” that DFO possessed documents connecting the statutory amendments with the Project in any way. The Court agreed with the defendants that documents in DFO’s possession would have considered fish mortality but held that the defendant Port was already in possession of such documents and did not satisfy the test for third party disclosure application. The application for production of all records in DFO possession from 1 January 2015 to 5 November 2014 was denied as DFO’s sworn, unchallenged evidence was that such records did not influence the authorization process. However, the co-accused’s application was granted and production of March 2008 to December 2013 records in possession of DFO was ordered.