The Respondent in an Appeal, the Chief Electoral Officer, filed an Application requesting direction from the Court regarding the content of a certified record produced under the Election Act, RSA 2000, c E-1 (the “Election Act”) to be filed in response to an Appeal of a decision made under the Election Act. The Appellant, Anglin, filed a Cross-Application asking the Court to order significant further production from the Chief Electoral Officer not included in the draft certified record.

Feehan J. considered whether the entire content of the Chief Electoral Officer’s investigative file needed to be produced on the Appeal, or if the Chief Electoral Officer was able to redact certain information. Feehan J. determined that in producing a record disclosed in an Affidavit pursuant to Rule 3.14, the Chief Electoral Officer should produce all records which were relied on for the decision being appealed that are relevant and material. Feehan J. held that the Chief Electoral Officer did not need to produce information that was not relevant or material in coming to the decision as defined under Rule 5.2(1).

Anglin advanced a number of procedural arguments on the Cross-Application, submitting that the Court did not currently have the jurisdiction to determine whether additional documents should be produced on the certified record, as the matter could only be addressed at a Trial or at a Trial of an issue pursuant to Part 7 of the Rules. Feehan J. considered Rules 7.1 to 7.11, which address the resolution of Claims without a full Trial by means of Trial of an issue, Summary Judgment, or Summary Trial. Feehan J. emphasized that, pursuant to Rule 1.4, the Court may determine matters of process and procedure within the Action, Application or proceeding before the Court. Justice Feehan also noted that Rules 3.14, 3.18(2), 6.14(4), 10.26(3), 10.44(3) and 14.16(1) dictate the contents of records for the purposes of review or Appeal of an earlier decision, and determined that Part 7 of the Rules and Rule 1.4 allow the Court to determine matters of process and procedure before Trial. Justice Feehan concluded that the Court had the jurisdiction to hear the Application and the Cross Application.

Anglin also argued that the Chief Electoral Officer did not need to be concerned about his duty of confidentiality set out in the Election Act, as the directions regarding confidentiality set out in the Rules would impose an implied undertaking on the Chief Electoral Officer. In determining the scope of the Chief Electoral Officer’s obligations of confidentiality, Feehan J. referred to Rule 5.33, which provides that information and records disclosed in an Affidavit, in a record referred to in an Affidavit, or in a recorded  transcript of Questioning must be treated as confidential and may only be used by the recipient of the information for the purposes of the litigation; Rule 6.11(1)(f), which provides similar provisions with respect to evidence that may be used on an Application before the Court; and Rule 8.17(3), which provides similar provisions with respect to Trial. His Lordship determined that the Rules would not protect the information in the certified record, for as soon as the certified record is filed, it would become public. Further, the Rules would not assist Anglin in obtaining the information that he sought from the Chief Electoral Officer, and the duty of confidentiality set out in the Election Act was still in effect.

Justice Feehan determined that the Appeal of a decision is conducted based on the record which was before the decision maker, and the information sought by Anglin was not before the Chief Electoral Officer when the decision was made. Feehan J. dismissed Anglin’s Cross-Application with Costs.