Executive Summary: Key Legal and Evidentiary Issues

• Judicial review was sought to challenge a federal directive mandating minimum in-office workdays for public servants.

• The applicant alleged that the amended directive constituted an abuse of the employer’s statutory authority.

• The applicant requested broader disclosure of documents under Rule 317 of the Federal Courts Rules, targeting internal meetings and communications.

• The court denied the disclosure request, characterizing it as an overbroad fishing expedition lacking specific evidentiary basis.

• Allegations of abuse of authority were deemed insufficient to override the general rule limiting disclosure to materials before the decision-maker.

• Costs of $900 were awarded to the respondent as the successful party on the motion.

Facts and outcome of the case

The case involves the Public Service Alliance of Canada (PSAC), a union representing various federal public service bargaining units, and the Attorney General of Canada, representing the Treasury Board Secretariat. On December 16, 2022, the Treasury Board issued a “Direction on Prescribed Presence in the Workplace,” mandating that employees in the core public administration work on-site for 2–3 days per week. This policy was later amended on May 1, 2024, increasing the minimum on-site attendance to three days per week and narrowing available exceptions. The amended directive was scheduled for full implementation by September 9, 2024.

PSAC filed for judicial review, alleging that the amendment to the workplace directive was an ongoing abuse of authority. They claimed it was arbitrary, made without proper evidence, and based on irrelevant or unauthorized considerations. Central to their motion was a request under Rule 317 of the Federal Courts Rules for production of documents that were not included in the Certified Tribunal Record (CTR). These included emails, meeting notes, and other internal communications related to the decision-making process. The applicant argued that such documents were necessary to establish the alleged abuse of authority.

The respondent opposed the request, arguing that Rule 317 disclosure is limited to materials that were before the administrative decision-maker at the time of the decision. The Federal Court agreed with the respondent, finding that the applicant’s request was overly broad, lacked specific evidentiary support, and resembled a fishing expedition. The court noted that while Rule 317 allows for some flexibility—particularly in cases alleging bias or procedural unfairness—those exceptions did not apply here, as no such allegations were made in the notice of application.

Consequently, the court dismissed the applicant’s motion for further disclosure. However, it granted PSAC leave to amend its notice of application as requested in their motion. Costs were awarded in favor of the Attorney General of Canada, fixed at $900 pursuant to Tariff B of the Federal Courts Rules. The court emphasized that requests for expansive disclosure must be grounded in a factual basis and narrowly tailored to relevant allegations.