K. F. Evans Ltd. v. Canada ( Minister of Foreign Affairs )
T-1810-95
Rothstein J.
11/1/96
17 pp.
Judicial review application requesting Minister to file certified copy of all material relied upon in refusing to grant applications for permits to export logs-Minister forwarding to Court (1) memorandum recommending Minister return applications for export permits on basis incomplete; (2) action memorandum recommending Minister sign letter to applicant advising export permit applications would not be considered without recommendation from British Columbia Timber Export Advisory Committee (TEAC); (3) action memorandum recommending export permits be denied to applicant-10 to 20% of 26 pages deleted as confidential by reason of solicitor-client privilege, or subsections 37(1) and 38(1) of Canada Evidence Act on ground disclosure would be injurious to international relations and/or federal- provincial relations-Action memoranda not prepared by solicitor but reflecting legal advice-Court assuming solicitorclient privilege may attach to advice or information provided by solicitor incorporated into document prepared by someone other than solicitor-Much of disclosed portions also reflecting legal advice, giving rise to question of whether waiver of solicitorclient privilege throughout-Inconsistency of disclosing some solicitor-client advice and maintaining confidentiality over other advice both pertaining to issues raised by applicant causing concern-To ensure Court, applicant not misled, and in interest of consistency, respondent considered to have waived all rights to solicitor-client privilege-Deleted portions of memoranda designated as solicitor-client privilege ordered disclosed-Canada Evidence Act deletions could not practically be severed from portions of material subject to solicitor-client privilege-Certificate setting out reasons for claims for confidentiality not indicating how disclosure of particular information would be harmful to Canadian interests-Certificate not convincing Court public interest in confidentiality outweighing public interest in disclosure-Inspection of confidential information indicating no harm from disclosure of some of Canada Evidence Act deletions-Claim for confidentiality not sustainable simply because information having some relationship to sensitive international consultation-Under ss. 37(1), 38(1), Court making determination based on evidence presented- Determination requiring some explanation of linkage between disclosure of specific information and harm to Canadian interests-Neither provided in certificate nor obvious from documents-Based on explanations given by counsel, likelihood of harm to international or federal-provincial relations, at its highest, not great-In many cases confidential information constituting observations on existing policies, practices, and how might relate to legal challenge-Much of confidential deletions already publicly known-If anything, disclosure might result in some embarrassment to respondent-Harm from disclosure exaggerated-Public interest in due administration of justice normally requiring disclosure-Having regard to balancing of public interests, appropriate to order disclosure of Canada Evidence Act deletions for which cannot absolutely rule out harm, to counsel for applicant, and applicant, on conditions-Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37(1), 38(1).