Canada ( Information Commissioner ) v. Canada ( Minister of the Environment )
T-1125-99
Richard C.J.
15/11/99
26 pp.
(i) Motion by applicant for order for directions with respect to hearing of application pursuant to Access to Information Act, s. 42(1)(a); motion by respondent for order (ii) directing return of document protected by Canada Evidence Act, s. 39 mistakenly disclosed to applicant during investigation, (iii) prohibiting applicant from using any documents obtained from respondent subject to solicitor-client privilege, (iv) pursuant to Federal Court Rules, 1998, rr. 151, 152 directing all documents obtained by applicant during investigation be treated as confidential-Motions arising out of application for judicial review seeking order directing records containing background explanations, analysis of problems, policy options presented to Queen's Privy Council for Canada for consideration in making decisions, be disclosed to requester-(i) Nature of proceedings-Federal Court Rules, 1998, Part 5 governing all proceedings brought by way of application-Pursuant to r. 61(2), any proceedings referred to in r. 300 must be brought as application-Proceedings under Access to Information Act, s. 42 referred to in r. 300(b), governed by Part 5 of Rules-Rr. 304 to 314 setting out time frame for each procedural step-Rr. 151, 152 dealing with confidentiality, access to confidential material apply to applications governed by Part 5-Thus 1993 Practice Direction from Court governing applications under Access to Information Act, Privacy Act no longer applicable; no need to bring motion for directions-Party wishing to vary requirements of rr. 304 to 314, or to obtain leave to take additional steps under r. 312, may do so by bringing motion by personal appearance, at any general sitting of Court or without personal appearance, under r. 369-R. 384 permitting party at any time to bring motion to have proceeding managed as specially managed proceeding-As Part 5 rules set out timetable to move application through system quickly, must be substantial reason justifying proceeding being removed from timetable set out in Part 5-Given circumstances, history of proceeding, order granted that proceeding be managed as specially managed proceeding-(ii) In reply to Deputy Information Commissioner's order to produce within five days, Deputy Clerk of Privy Council enclosing two lists, one of which entitled "Schedule of Excludable Documents" which briefly describes, lists all documents which Privy Council Office not producing-Evidence Act, s. 39 providing where Clerk of Privy Council objecting to disclosure of information by certifying in writing information constituting confidence of Queen's Privy Council, disclosure shall be refused without hearing of information-Clerk of Privy Council subsequently issuing certificate under s. 39 covering each record referred to in Schedule, Schedule itself-Respondent then requesting applicant to return Schedule-S. 39(1) creating absolute privilege-As respondent had only five business days to produce 203 documents, plausible one document inadvertently provided-Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 (C.A.), wherein held s. 39 certificate not effective bar to receipt of documents already disclosed by court, distinguished as Schedule inadvertently disclosed-S. 39 certificate can be issued at any time during proceeding and will have effect as of date certificate issued-Statutory protection not lost where documents mistakenly, inadvertently disclosed-Certificate constituting effective bar to production of Schedule-General administrative jurisdiction of Federal Court should not be narrowly interpreted: Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626-Protected document herein obtained through compulsion in exercise of statutory power-Document, protected as matter of public policy, produced by inadvertence-Schedule ordered not filed with Court, but returned to respondent-(iii) Solicitor-client privilege should only be interfered with to extent absolutely necessary to achieve ends of Access to Information Act-In order to fulfil purpose, Act conferring broad powers of investigation, examination-S. 36(2) permitting Information Commissioner to examine any record notwithstanding any privilege under law of evidence; s. 46 permitting Court to examine any record notwithstanding any privilege under law of evidence-Power of examination conferred on Court by s. 46 including solicitor-client privilege-Privilege asserted cannot prevent Information Commissioner from introducing documents into record-Question of solicitor-client privilege, admissibility of such documents should be left to judge hearing application on merits-Privilege asserted satisfying Court of demonstrated need for confidentiality as required-Under r. 151(1) Court may order material to be filed shall be treated as confidential-R. 151(2) requiring Court be satisfied material should be treated as confidential-Documents for which claim of solicitor-client privilege asserted to be filed, dealt with confidentially in manner set out by rr. 151, 152-(iv) Judicial system resting on principle of open justice-Presumption in favour of public access; burden of contrary proof on person who would deny exercise of right: Attorney General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175-Onus on respondent to demonstrate remaining material should be treated confidentially-Access to Information Act, s. 47 contemplating special precautions against disclosure where head of government institution would be authorized to refuse disclosure-Affidavit filed herein only raising possibility documents in question could be subject to exemptions of Access to Information Act-Not sufficient to justify material be filed confidentially-Remaining documents filed on public record-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39-Access to Information Act, R.S.C., 1985, c. A-1, ss. 36(2), 42(1)(a), 46(2), 47-Federal Court Rules, 1998, SOR/98-106, rr. 61(2), 151, 152, 300, 304-314, 369, 384.