EVIDENCE |
Canada (Human Rights Commission) v. Northwest Territories
T-1571-00, T-923-00
MacKay J.
11/10/00
20 pp.
Application pursuant to Canada Evidence Act, s. 37 for order dismissing objection by Government of Northwest Territories (GNWT) to disclosure of documents on grounds of executive privilege; application for judicial review by GNWT of Tribunal's ruling requiring GNWT to produce copies of documents for which claimed executive privilege (public interest immunity)--Applications arising from proceedings of Canadian Human Rights Tribunal concerned with complaint against GNWT filed by Public Service Alliance of Canada (PSAC) alleging government as employer discriminated in classification and pay of employees in female-dominated groups when related to male-dominated groups in violation of Canadian Human Rights Act, ss. 7, 10, 11--Application in relation to objection by GNWT on grounds of public interest immunity to disclosure allowed in substantial part so that those documents with exceptions specified by order to be produced to Tribunal; application for judicial review allowed--(1) Costs alone not basis for determining whether matter of such public interest that immunity from disclosure should apply--Two-stage procedure for determining whether information should be produced under Canada Evidence Act (CEA), s. 37: first directed at whether Court should examine documents claimed as privileged under public interest immunity; if so, second involving review of information claimed as privileged and hearing of further submissions concerning balancing of public interests at stake--GNWT not opposing Court's examination of documents--Affidavit evidence not persuading Court claim to public interest immunity can be upheld without examination of documents--Affidavits describing GNWT, operations as akin to provincial governments--Not specifying public interests at stake, other than perception of importance of non-disclosure in matters concerning personnel policy, collective bargaining, job classification, pay rates, pay equity in light of on-going inquiry into PSAC's complaint, successive rounds of collective bargaining since complaint filed--Describing documents generically--General public interest in maintenance of confidential documents for efficient working of Cabinet, without some other identified public interest, not outweighing public interest in administration of justice, here involved in Tribunal's inquiry into major complaint of unlawful discriminatory treatment of certain employees--In Carey v. Ontario, [1986] 2 S.C.R. 637, La Forest J. affirming Cabinet documents must be disclosed unless disclosure would interfere with public interest; Court should proceed cautiously, considering level of decision-making process concerned, nature of policy involved, particular content of documents, time when document to be revealed; assessment must be weighed against importance of producing documents in interests of administration of justice--S. 37 dealing with government information--Documents identified as relevant by GNWT to be released except where information contained therein privileged by identified public interest other than that in maintaining Cabinet level documents as confidential--In weighing public interests, GNWT identifying public interest as collective bargaining with public sector employees' unions and related matters affecting employees' interests such as job classification systems--While necessary to protect from disclosure strategy, planning for matters within normal scope of collective bargaining, public interest immunity in such information not extending beyond conclusion of collective agreement, unless information concerns ongoing matter of difference likely to be subject of bargaining in future--Public interest in information generally concerning collective bargaining or job classification systems, unless perceived as dealing with specifics of current, upcoming bargaining or as admissions against interest at stake before Tribunal, not outweighing in balance importance of open, fair proceedings in dealing with PSAC's complaint before Tribunal--Tribunal directed to consider claims to privilege, other than public interest immunity, in relation to documents in issue--Generally, where documents produced in relation to litigation, implied undertaking by counsel for use in litigation in relation to which produced--(2) As general rule, rulings made during course of tribunal proceeding should not be challenged until Tribunal's proceedings completed: Citron v. Zündel, [2000] 4 F.C. 225 (T.D.)--CEA, s. 37 specifically providing process for dealing with objections to production of federal government information on grounds of public interest--GNWT's objection to disclosure of documents specifically covered by s. 37 and procedure for dealing therewith set out in s. 37(2), (3)--PSAC, CHRC arguing 1998 amendments to Canadian Human Rights Act, particularly s. 50, authorizing Tribunal to act as superior court, determine objections under s. 37--Tribunal's powers to deal with evidence, order production of documents as set out in s. 50 simply qualifying Tribunal within s. 37(3) as body vested with power to compel production by, pursuant to Act of Parliament--While amendments clarifying role of tribunal in dealing with evidentiary matters, and amendments enacted later than CEA, s. 37, latter dealing specifically with objections to disclosure of government information, limiting role of federal tribunal in dealing with objections to disclosure of federal government information--In case of objections to disclosure of information by federal government or agencies, including GNWT, general provisions of Canadian Human Rights Act not creating exception to application of ss. 37 to 39--When GNWT raising objection, Tribunal must leave to Court determination of whether objection on grounds of public interest immunity should be respected--Such interpretation consistent with application of Canadian Human Rights Act, s. 58, authorizing CHRC to apply to Court for determination of objection to disclosure of government information when investigator, or member or panel of Tribunal seeking disclosure of information and refused--Application for judicial review in relation to Tribunal's ruling in regard to GNWT's objections to disclosure not premature--Application allowed on merits--Tribunal erred in law in determination having authority to determine objections to production of government information on grounds of public interest immunity when claimed by federal government--Objection of that sort to be dealt with pursuant to ss. 37 to 39--Canadian Human Rights Act, ss. 7, 10 (as am. by S.C. 1998, c. 9, s. 13), 11, 50 (as am. idem, s. 27), 58 (as am. idem, s. 30)--Canada Evidence Act, R.S.C., 1985, c. C-5, s. 37.