Beno v. Canada ( Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia )
T-408-97
MacKay J.
2/5/97
14 pp.
Applicants seeking permanent injunction to prevent Commission from completing task or order prohibiting any report or adverse finding against applicants reasonably expected to bring discredit upon them-Applicants requesting production of documents pursuant to R. 1612 in preparation for judicial review hearings-Requested documents including correspondence, notes, memoranda, notes of minutes of meetings or discussions that Commissioners, staff, including counsel, reviewed or prepared with respect to (i) question of whether, extent to which s. 13 notices should not be withdrawn; (ii) interrelationship between phases of Somalia inquiry-Objections: (1) all relevant evidentiary material already disclosed; (2) requests infringing privilege of deliberative secrecy, solicitor-client privilege, principle of public interest immunity; (3) requests too broad, without reference to any specific documents known to exist-Objection to production upheld-(1) No relevant document not disclosed-While applicant cannot know what documents Commission has, Court not ordering production of documents of which no clear evidence of existence-If such documents exist, may relate to policy deliberations of Commissioners-Application of policy decisions to applicants' respective situations, not advice or documents leading to policy decisions, relevant-Applicants' requests relating principally to documents underlying Commission's policy determinations, and in that sense request not for documents relevant to applications for judicial review-(2) Principle of deliberative secrecy may be relied upon by administrative tribunals, though to lesser extent than judicial tribunal-Natural justice may require Court to review internal processes of commission of inquiry, examine documents essential for record on which judicial review based, but review not warranted herein as documents pertinent to records for judicial review already produced-Each of these grounds of objection can only be considered in relation to particular documents-With no document identified at this stage, no valid ground for refusal to disclose-Claim privilege waived also only considered where privilege established-(3) Judicial review proceedings summary in nature with no discovery, written pleadings, and rules relating to those proceedings, including RR. 1612, 1613, not intended to prolong summary proceedings or to permit "fishing expedition"-R. 1612(4) providing request shall specify particular material in possession of federal board, commission or other tribunal-No request herein within that rule-Requests in nature of "fishing expedition" to find whether any documents which might assist in support of applicants' case for judicial review, about which have no knowledge at this stage-Purposes of RR. 1612, 1613 concerning requests for production of documents in connection with judicial review proceedings not providing for requests of sort here made by applicants-Federal Court Rules, C.R.C., c. 663, RR. 1612 (as enacted by SOR/92-43, s. 19), 1613 (as enacted idem).