Executive Summary: Key Legal and Evidentiary Issues

• The motion turns on the scope of documentary disclosure available under Rule 317 of the Federal Courts Rules, brought within a broader judicial review of the Tobacco Charges Regulations.
• Central to the dispute is whether a party may obtain material that is merely mentioned in the Certified Tribunal Record but was not actually before the decision maker.
• Whether raising constitutional grounds of review expands what is producible under Rule 317 was squarely contested.
• Distinguishing admissibility of evidence from producibility (or accessibility) under Rule 317 framed much of the analysis.
• Also in issue was whether the Applicant's broad request amounted to a prohibited "fishing expedition."
• Finally, the decision addresses who bears the burden of justifying broader disclosure and what threshold — an "arguable case" — must be met.

Facts of the case

JTI-Macdonald Corp, described as one of Canada's oldest tobacco companies, brought a judicial review application challenging the Tobacco Charges Regulations, SOR/2025-80, and the provisions of the Tobacco and Vaping Products Act (TVPA) that authorize them. Its Notice of Application, date-stamped September 29, 2025, alleges that sections 42.1 to 42.16 and 46.1 of the TVPA, and the Regulations made under them, are ultra vires on both constitutional and administrative law grounds, and asks in the alternative that certain defined terms and specific sections of the Regulations be quashed. The Regulations arise from a 2024 amendment to the TVPA that created a cost-recovery framework, intended to recover from "designated manufacturers" a portion of the federal costs of tobacco-control activities carried out by the Department of Health, the Public Health Agency of Canada, and Indigenous Services Canada.

The matter actually decided was not the merits of that challenge but a motion in writing under Rule 369. After the Applicant made a request under Rule 317 for material in the Minister's possession, the Certified Tribunal Record (CTR) — comprising 12 documents — was transmitted on December 3, 2025. The Attorney General objected to part of the request on three bases: Confidences of the King's Privy Council, solicitor-client privilege, and the scope of the request. This motion concerns only the scope objection; the Applicant did not contest the Cabinet-confidence or privilege redactions but sought to compel disclosure of substantially more material than the CTR contained. The Court confirmed that the relevant "tribunal" for Rule 317 purposes was the Minister who authorized the Regulations.

Statutory and regulatory provisions at issue

There is no insurance policy or private contract in this matter; the operative provisions are statutory and regulatory. Rule 317 permits a party to request material that is relevant to an application and in the possession of the tribunal, but not in the party's possession — relevance and possession being two distinct requirements. Section 42.1 of the TVPA empowers the Minister to make regulations respecting fees or charges payable by manufacturers to recover federal costs of carrying out the Act's purpose, and requires consultation before regulations are made; section 42.16 permits the Minister to prohibit sales by a designated manufacturer that fails to pay. The Applicant singled out the definitions of "annual charge," "annual cost base," and "designated manufacturers," together with sections 2, 3, 5 and 7 of the Regulations, as defective. On the constitutional side, the Applicant framed the levy as in substance a tax — permissible only when levied by Parliament under section 53 — and argued the scheme exceeds Parliament's legislative competence, invoking the criminal law power (s. 91(27)) and the provincial heads of property and civil rights (s. 92(13)), local matters (s. 92(16)), and "perhaps education" (s. 93).

The court's reasoning and analysis

Justice Roy treated the sole question as the scope of Rule 317 and emphasized that the rule is not a discovery mechanism: its purpose is to place before the reviewing court the record that was before the decision maker, subject to narrow "exceptional evidence" categories. Relevance alone does not determine what was before the decision maker — as the Court put it, the tail does not wag the dog — so material merely referred to within the CTR is not thereby rendered producible. The Court rejected the Applicant's theory that possession by the department equals possession by the Minister, relying on binding Federal Court of Appeal authority including 1185740 Ontario Ltd, Pathak, Château d'Ivoire Stores, Access Information Agency, Canadian National Railway Company, and the framework in Tsleil-Waututh Nation; the Applicant's reliance on Cooke was treated as an outlier per Gray. The three recognized exceptions — a background affidavit, an affidavit showing the absence of evidence, and procedural-fairness defects — were held not to apply, and a constitutional challenge is not itself an exception. The Court drew a firm line between admissibility and producibility, noting that a party may build its record through affidavits under Rules 306 and 307 (as in the firearms litigation where more than 100 affiants were filed) without that evidence being accessible under Rule 317. It found the Applicant had offered only speculation, assumptions, and general assertions — including inferences that itemized cost calculations, the business case submitted to the Treasury Board Secretariat, consultation submissions, and price-increase analyses must have been before the Minister — without articulating, with specificity, how any of it was relevant to the grounds raised. While the Court acknowledged the danger of "immunizing" decision-making, it held that immunization concerns the improper withholding of material actually relied upon, which was not the situation here.

Ruling and outcome

The Court concluded that the Applicant had not discharged its burden of demonstrating an arguable case for broader disclosure and dismissed the motion to compel production of material under Rule 317, since the material sought was not before the decision maker when the impugned decision was made. The Respondents — the Attorney General of Canada and the Minister of Health — were the successful parties, and costs were granted in their favour. No dollar figure was fixed: the parties were invited to agree on the quantum, failing which they may file submissions of no more than three pages within five days of the Reasons and Order. The total costs award is therefore best characterized as granted but not specified as to amount.