PRACTICE |
Discovery |
Production of Documents |
Canadian Artic Resources Committee Inc. v. Diavik Diamond Mines Inc.
T-2127-99
Hargrave P.
6/6/00
24 pp.
Main proceeding application for judicial review of decision by Minister of Environment under Canadian Environmental Assessment Act, s. 23 relating to proposal for open pit mining of diamonds at Lac de Gras, northeast of Yellowknife in Northwest Territories--Applicant filing present r. 317 request not only for material upon which Minister of Environment made decision, but also for material in possession of Minister of Indian Affairs and Northern Development, Minister of Fisheries and Oceans, Minister of Natural Resources acting as responsible authorities under Act--Applicant also challenging claim of immunity from production of certain documents certified by Clerk of Privy Council under Canada Evidence Act, s. 39 as cabinet confidences--Motion denied--Minister having made final decision under Act, s. 23, referring project back to responsible authorities for action--R. 317 providing means for applicant for judicial review to obtain material in possession of tribunal making decision under review--Stages of investigating and of decision-making distinct, separate herein--Assessment made not by way of screening but by way of Comprehensive Study Report--F.C.A. decision in Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 applicable herein--Applicant for judicial review of decision, where decision-making function separate from investigating function, only entitled, on r. 317 request, to receive documents before decision maker--R. 317 production not extending to separate body, here responsible authorities, who investigated, prepared Report, nor does production extend to analysis, opinion set out in staff memoranda--Canada Evidence Act, s. 39 absolute bar to disclosure of what is certified as confidence of Queen's Privy Council for Canada--Broad, strict prohibition--In contrast to common law, s. 39 provides absolute protection of cabinet confidences, for once Clerk of Privy Council issued certificate, Court may not go behind certificate to review document--Review limited to determining whether certificate of Clerk of Privy Council, on its face, complies with requirements of Act, s. 39--Matter closed when Clerk of Privy Council reviewed November 1, 1999 letters, concluded letters came within definition of cabinet confidence under s. 39(2)(d)--Costs of motion awarded to respondent, intervener--Federal Court Rules, 1998, SOR/98-106, r. 317--Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 23--Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39.