Executive Summary: Key Legal and Evidentiary Issues

• Motion for production of documents in an application for judicial review of a federal procurement decision under Rule 317 of the Federal Courts Rules.
• Whether disclosure obligations extend beyond materials that were before the administrative decision-maker, including documents that "may otherwise affect" the Court's decision.
• Application of the Jewish National Fund (JNF) framework governing document production where allegations of "maladministration" are advanced.
• Requirement that allegations of maladministration have an "air of reality" supported by tangible evidence, and that production orders be proportionate.
• Treatment of post-decision evidence in judicial review, including its admissibility where relevant to a ground for setting aside the decision.
• Sufficiency of pleadings under Rule 301 to ground broader document production beyond what was before the decision-maker.

Background and facts

This proceeding arises from a motion by Universal Protection Service of Canada Corporation (Universal) seeking the production of additional documents in its application for judicial review of a procurement decision made by the Canadian Air Transport Security Authority (CATSA). CATSA is a Crown corporation that oversees security screening for airline passengers, though the actual screening is performed by contractors engaged for that purpose. On January 31, 2023, CATSA issued a request for proposal (RFP) to establish four contracts for the delivery of aviation screening services in the Central, Eastern, Prairies, and Pacific regions. The successful bidder in each region would be awarded an Airport Screening Services Agreement (ASSA).

Universal, the incumbent provider in the Pacific region, submitted bids for both the Prairies and Pacific regions, as did Paladin Airport Security Services Ltd. (Paladin) and GardaWorld Security Screening Inc. (GardaWorld). The RFP proceeded in two stages: Stage 1 was a prequalification process, and bidders meeting a points threshold were invited to Stage 2 to submit a proposal for an ASSA. Paladin was the successful bidder for both the Prairies and Pacific regions, with the results publicly announced on November 23, 2023.

Universal commenced its application for judicial review on December 27, 2023 (after being granted an extension of time by order dated April 2, 2024), challenging CATSA's decision to accept Paladin's proposals. CATSA served a certified tribunal record (CTR) on November 6, 2024. After review, Universal requested additional documents and the removal of certain redactions, and twice amended its notice of application (on June 26, 2025 and August 7, 2025). CATSA served a supplementary CTR on October 17, 2025, and a second supplementary CTR in response to Universal's motion. The collective CTR comprises approximately 13,000 pages.

Rule 317 framework

Associate Judge Trent Horne reviewed the principles governing Rule 317 disclosure, drawing on the Federal Court of Appeal's decisions in Tsleil-Waututh First Nation v Canada (Attorney General), 2017 FCA 128, Lukács v Swoop Inc, 2019 FCA 145, and Canadian National Railway Company v Canada (Transportation Agency), 2019 FCA 257. Four core elements were identified: disclosure is limited to material relevant to the application; the material must be in the possession of the decision-maker; in most cases, it is limited to material that was before the decision-maker when the decision was made; and Rule 317 does not serve the same purpose as documentary discovery and cannot be used for a fishing expedition. The Court emphasized that production in a judicial review is narrower than in an action, and that this scope does not expand simply because the financial stakes are higher.

Maladministration framework under JNF

The Court relied extensively on the Federal Court of Appeal's recent guidance in Jewish National Fund of Canada Inc v Canada (National Revenue), 2026 FCA 63 (JNF). Production beyond what was before the decision-maker may be ordered where there are allegations of "maladministration," a term used to broadly describe misconduct in administrative proceedings. However, a bare allegation is not enough. A party seeking such an order must establish an "air of reality" to the allegation, supported by tangible circumstantial or direct evidence capable of being believed, and the order sought must be a proportionate measure.

Analysis of the five categories of documents

Scores and scoring discrepancies. Universal sought production of evaluator notes, working documents, and correspondence relating to scoring in Stage 1 and Stage 2. The Court dismissed this request. Universal did not assert that personal notes, emails, or memoranda made by individual evaluators were before CATSA's board, which was the decision-maker. The Court rejected Universal's reliance on Rapiscan Systems, Inc v Canada (Attorney General), 2014 FC 68 and Maax Bath Inc v Almag Aluminum Inc, 2009 FCA 204, holding that those authorities do not establish a separate category of producible documents that were not before the decision-maker but might affect the Court's decision. The request was also found to be disproportionate and speculative.

Kick-off meetings, consensus meetings, and other meetings. Universal sought meeting minutes, agendas, notes, presentations, and related documents. The Court dismissed this request. The cross-examination of Jenny Doucet, CATSA's Director of Procurement and Contracting, did not establish that additional documents related to these meetings existed and were before the board but excluded from the CTR. The Court further held that paragraph 37(g)(xi) of Universal's notice of application — alleging an "unfair and deficient evaluation process" — used broad and open-ended language insufficient to create an air of reality to support production beyond what was before the decision-maker.

Viability of Paladin's bids and the shift rate issue. This category was granted in part. Universal alleged that Paladin used an 8-hour shift rate in its bid when it should have used a 16-hour shift rate, and that, had an accurate shift rate been used, the bid amount would have been substantially higher. The Court found an air of reality to the allegation that CATSA had identified a problem with Paladin's bid, awarded the ASSA to Paladin, and decided to address the problem post-award. This was supported by contemporaneous CATSA emails stating "we can freely address post award," and by Ms. Doucet's cross-examination evidence that there was no pre-award communication with Paladin about the shift rate error. The remainder of the viability request was dismissed as too broad and not sufficiently defined.

Internal CATSA emails. Universal sought additional internal email correspondence relating to the evaluation of Paladin's bids between September 2021 and November 2023. The Court dismissed this request as overly broad, not limited to a defined issue in the notice of application, not limited to emails before the decision-maker, and not identifying specific individuals.

Change documents. This category was granted in part. The Court accepted that post-decision evidence is admissible where relevant to a ground for setting aside a decision, citing Coldwater First Nation v Canada (Attorney General), 2019 FCA 292. Given the air of reality to the maladministration allegation regarding the shift rate, post-decision documents directly relating to it should be produced. However, the Court declined to extend the production window to one year following execution of the ASSA, holding that if the shift rate issue was as consequential as Universal believed, it would have been addressed more quickly.

Supplementary search and affidavit. The Court declined to order CATSA to file an affidavit from a senior official listing withheld documents. Compelling such an affidavit is an exceptional remedy, and Universal's request would effectively require CATSA to review and explain inclusion or exclusion decisions across a 13,000-page record, which would be disproportionate.

Confidentiality and outcome

The parties had substantially resolved confidentiality issues before the hearing, and no order was made in that respect. The motion was granted in part. Within 45 days of the order, CATSA was directed to serve and file a supplementary certified tribunal record including, to the extent they exist, (a) all documents created up to the selection of Paladin as the winning bidder relating to the shift rate error in Paladin's bid, including correspondence, analyses, meeting minutes, memos, and notes; and (b) change requests, change orders, or related correspondence or documents exchanged between CATSA and Paladin after the selection of Paladin but before the execution of the ASSA, and for a period of six months after the execution of the ASSA. The motion was otherwise dismissed. The successful party on this motion was mixed: Universal succeeded on a narrow basis with respect to the shift rate and change documents, while CATSA prevailed on the majority of the production categories sought. No monetary award was made; the parties were encouraged to reach agreement on costs, failing which Universal was directed to file costs submissions of up to five pages within 10 days, and CATSA could file reply submissions of up to five pages within 20 days. The total quantum of costs cannot be determined from the decision as no costs amount was fixed.