T-912-98
Desjardins, Ducharme, Stein, Monast, Law Partnership (Applicant)
v.
Department of Finance of Canada (Respondent)
Indexed as: Desjardins, Ducharme, Stein, Monastv. Canada (Department of Finance) (T.D.)
Trial Division, Nadon J."Ottawa, November 16; Montréal, November 20, 1998.
Access to information — Applicant challenging decision authorizing disclosure of certificates confirming fee accounts of amicus curiae appointed by S.C.C. for hearing of Reference re Secession of Quebec — Request for information made by intervener under Access to Information Act — Relationship between amicus curiae, S.C.C. not solicitor-client relationship under Act, s. 23 — Only particulars of amicus curiae's professional services considered confidential, would not be disclosed — Certificates records under control of government institution (Department of Finance) — Mere physical possession of records by respondent sufficient, under Act, s. 4(1), to require disclosure of requested information — Payment of amicus curiae's fees matter for respondent, not S.C.C. — Upon application for review, Court's function to consider matter de novo — Government institution may fully participate in argument regarding disclosure, non-disclosure of requested information under Act, ss. 44, 48.
Barristers and Solicitors — Quebec lawyer appointed amicus curiae by S.C.C. under Supreme Court Act, s. 53(7) to assist Court in responding to questions asked of it in Reference case — For sake of confidentiality must submit fee, disbursement accounts to third party for review, certification — Access to information coordinator for respondent authorizing disclosure of certificates confirming amicus curiae's fee accounts — Relationship between amicus curiae, S.C.C. not solicitor-client relationship — Only particulars of amicus curiae's professional services considered to be subject to privilege.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 4(1), 20, 23, 44, 48.
Supreme Court Act, R.S.C., 1985, c. S-26, s. 53(7).
cases judicially considered
applied:
Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110; (1995), 30 Admin. L.R. (2d) 242; 60 C.P.R. (3d) 441; 179 N.R. 350 (C.A.); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480; (1989), 23 C.P.R. (3d) 297; 24 F.T.R. 62 (T.D.); Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.).
referred to:
Reference re Secession of Quebec, [1998] S.C.J. No. 61 (QL).
APPLICATION for judicial review of respondent's decision authorizing the disclosure of certificates confirming the fee accounts of the amicus curiae appointed by the Supreme Court of Canada for the hearing of the Reference re Secession of Quebec. MOTION to strike out respondent's memorandum of fact and law. Application dismissed; motion dismissed.
appearances:
Marcel Morin and Martin Bédard for applicant.
René LeBlanc for respondent.
Richard G. Dearden and Scott Little for intervener.
solicitors of record:
Morin, Lemieux & Associés, Montmagny, Quebec, for applicant.
Deputy Attorney General of Canada for respondent.
Gowling, Strathy & Henderson, Ottawa, for intervener.
The following is the English version of the reasons for order rendered by
Nadon J.: The applicant challenges the decision of Donald Forgues, access to information coordinator for the respondent Department of Finance of Canada, dated April 8, 1998.
In his decision in response to a request for information made by the intervener, Mr. Bindman, under the Access to Information Act, R.S.C., 1985, c. A-1, the coordinator authorized the disclosure of records filed with the respondent by the applicant, including certificates confirming the fee accounts of André Joli-Coeur, the amicus curiae appointed by the Supreme Court of Canada (the Supreme Court) for the hearing of the Reference re Secession of Quebec [[1998] S.C.J. No. 61 (QL)] (the Reference).
The grounds for the challenge, as set out in the applicant's application for review, are the following:
[translation]
3. The grounds against disclosing the records, given in the letter of March 20, 1998, are the following:
" the records to which access is requested pertain to a matter that comes exclusively under the Supreme Court Act and, consequently, the jurisdiction of the Supreme Court of Canada;
" the records have to do with a specific amicus curiae mandate from the Supreme Court of Canada to André Joli-Coeur on July 14, 1997, under section 253(7) [sic] of the Supreme Court Act;
" under this section, the Department of Finance is merely an agent of the Supreme Court for the payment of André Joli-Coeur's fees;
" our firm merely acted as counsel to André Joli-Coeur to verify the accounts submitted in connection with his amicus curiae mandate;
" under the amicus curiae mandate, André Joli-Coeur has no professional relationship with any organization other than the Supreme Court of Canada;
" the Supreme Court of Canada is not a government institution listed in Schedule I to the Access to Information Act , and records under the sole control of the Supreme Court of Canada are not subject to section 4(1) of the Act;
" access to these records must be refused;
The relevant facts are the following. André Joli-Coeur, a Quebec City lawyer, was appointed under subsection 53(7) of the Supreme Court Act, R.S.C., 1985, c. S-26 (the Act), as amicus curiae in the Reference case. Subsection 53(7) reads:
53. . . .
(7) The Court may, in its discretion, request any counsel to argue the case with respect to any interest that is affected and with respect to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance out of any moneys appropriated by Parliament for expenses of litigation.
On July 11, 1997, the Registrar of the Supreme Court wrote to Mr. Joli-Coeur to confirm his appointment as amicus curiae. On the second page of her letter, the Registrar wrote:
Your role as amicus curiae will be to assist the Court in responding to the questions that have been asked of it in the Order in Council P.C. 1996-1497, dated the 30th day of September, 1996, and to do so independently of any party to the reference. Those questions are as follows:
. . .
In this Reference, it would be of assistance to the Court to receive arguments on all sides of these questions and from all points of view. While the Court has before it some arguments supporting an affirmative answer to Questions 1 and 2, it is of the view that it would benefit from additional arguments to that end. The Court has therefore decided to appoint you as amicus curiae with the following mandate:
(1) to submit a factum presenting written arguments with respect to the questions with a view to advancing positions other than those put forward by the parties to the Reference;
(2) to file such other materials as is deemed necessary to present these arguments;
(3) to present oral arguments at the hearing; and
(4) to bring to the Court's attention any other matters which counsel, as amicus curiae, may consider relevant to the answers to be given to the questions referred to the Court.
On July 30, 1997, the Assistant Deputy Minister, Corporate Management, of the Department of Finance, wrote to Mr. Joli-Coeur regarding the payment of his fees. The letter reads in part:
[translation] It is quite clear, however, that you remain the amicus curiae appointed by the Supreme Court of Canada, not an agent of the Attorney General of Canada or the Government of Canada.
. . .
For the sake of confidentiality, we have agreed that you will submit your fee and disbursement accounts"including the number of hours and hourly rate of those who worked on the case"to a third party, Ms. Paule Gauthier, Past President of the Canadian Bar Association. Ms. Gauthier will examine them within the context of a solicitor-client relationship with you such that the particulars of the professional services will be considered by all the parties to be subject to privilege. Ms. Gauthier's fees will be paid by the Government of Canada. After examining the fee and disbursement accounts, she will send the Department of Finance a certificate confirming the amounts payable, which you will be paid within 15 days of receipt.
The applicant argues that the coordinator may not disclose the records requested by the intervener, Mr. Bindman, because those records are not "under the control" of a government institution within the meaning of subsection 4(1) of the Access to Information Act . Specifically, the applicant submits that those records are "under the control" of the Supreme Court, which is not a government institution according to the Access to Information Act .
The applicant also submits that, since Mr. Joli-Coeur was counsel to the Supreme Court, it is [translation] "necessary to maintain the confidentiality of the description of the professional services rendered by the amicus curiae , which is to be found in any fee account. The records exchanged for this payment are primarily under the control of the Supreme Court".
Last, the applicant submits that, in this matter, Ms. Gauthier acted merely as Mr. Joli-Coeur's counsel and agent with respect to the examination and approval of his fee accounts submitted in connection with the mandate given to him by the Supreme Court.
In my view, the applicant's arguments are unsound, as I shall explain. The following sections of the Access to Information Act are relevant:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
. . .
20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
. . .
23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
First, I am of the opinion that section 23 of the Access to Information Act is of no help to the applicant. There can be no doubt that the relationship between Mr. Joli-Coeur and the Supreme Court is not a solicitor-client relationship within the meaning of section 23 of the Act. In any event, even if Mr. Joli-Coeur's relationship with the Supreme Court could come within section 23, the applicant would not be able to invoke privilege for Ms. Gauthier's certificates. The Assistant Deputy Minister's letter dated July 30, 1997, says clearly [translation] "that the particulars of the professional services will be considered by all the parties to be subject to privilege". That explains why the respondent retained Ms. Gauthier's services to examine Mr. Joli-Coeur's fee accounts and, if satisfied, send the respondent a certificate confirming the accounts. In my view, a reading of the letter of July 30, 1997, leaves no room for any doubt that only the particulars of Mr. Joli-Coeur's professional services would be considered confidential and, as a result, would not be disclosed.
Second, I am satisfied that Ms. Gauthier's certificates are records under the control of a government institution, namely the respondent. They were forwarded to the respondent to enable it to carry out its responsibility under subsection 53(7) of the Act. In my view, the respondent is in no way the Supreme Court's payment agent under subsection 53(7) as the applicant claims it is.
In any event, in view of the Federal Court of Appeal's decision in Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110, mere physical possession of the records by the respondent is sufficient, under subsection 4(1) of the Access to Information Act, to require the respondent to disclose the requested information. At pages 127 and 128 of his reasons, for the majority of the Federal Court of Appeal, Mr. Justice Létourneau said:
The notion of control referred to in subsection 4(1) of the Access to Information Act (the Act) is left undefined and unlimited. Parliament did not see fit to distinguish between ultimate and immediate, full and partial, transient and lasting or "de jure" and "de facto" control. Had Parliament intended to qualify and restrict the notion of control to the power to dispose of the information, as suggested by the appellant, it could certainly have done so by limiting the citizen's right of access only to those documents that the Government can dispose of or which are under the lasting or ultimate control of the Government.
The remarks of Strayer J., as he then was, in Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.) are along the same lines as those made by Létourneau J.A. in Canada Post Corp. Here is how Strayer J. stated his opinion at pages 485-486:
The plain meaning of the language employed in the Act does not suggest that "information", "government information", or "record under the control" of the Government must be limited by some test as to how and on what terms the information or record came into the hands of the Government. That is the kind of qualification which the CFL is asking me to create. I can find no basis for doing so. The plain meaning of subsections 2(1) and 4(1) as quoted above is that the Act gives access, subject to many exceptions, to any record, or information in a record, which happens to be within the custody of the government regardless of the means by which that custody was obtained. That is surely the interpretation which is also most consistent with the purpose of the Act. The interpretation advanced by the CFL on the other hand, appears to be inconsistent with paragraph 20(1)(b ) which it also relies on: that paragraph obviously assumes that "confidential information supplied to a government institution by a third party" is prima facie within the definition of "record" to which access would otherwise be available were it not for the possible protection of this paragraph. In other words, this exception proves the rule that confidential material supplied by a third party to the Government can form all or part of a "record under the control of a government institution". It will be noted that the word "supplied" in paragraph 20(1)(b ) is not modified by any terms such as "under compulsion".
The payment of Mr. Joli-Coeur's fees was clearly a matter for the respondent, not the Supreme Court. As a result, the respondent's receipt and possession of Ms. Gauthier's certificates are clearly the result of the responsibility imposed on the respondent by subsection 53(7) of the Act.
Last, the applicant has not argued, and consequently has not established, any of the exemptions provided in subsection 20(1) of the Access to Information Act to justify refusing to disclose the records requested by the intervener.
For these reasons, the applicant's application for review must be dismissed.
A few days before its application for review was heard, the applicant filed a motion to strike out the respondent's memorandum of fact and law. After arguments were presented at the hearing of November 16, 1998, I informed counsel that this motion would be dismissed.
The applicant argues that the rule limiting administrative tribunals whose decisions are under judicial review to intervening only on jurisdictional issues applies in the case at bar. As a result, according to the applicant, the respondent could not argue in its factum that it was authorized to disclose the records requested by the intervener.
The respondent, for its part, submits that the rule limiting administrative tribunals to intervening only on jurisdictional issues does not apply in the case at bar since the remedies provided by the Access to Information Act are de novo remedies. In Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), Mr. Justice MacKay of this Court, at pages 196-197, explained the de novo nature of judicial review under the Access to Information Act in the following terms:
The role of the court, to conduct a "review of the matter" de novo , including examination document by document of the records proposed to be disclosed which the applicant third party seeks to have prohibited from disclosure, does not seem to have been thoroughly discussed previously, perhaps because it has been seen to be so obvious in previous cases that no issue was raised about it. That is, however, the role implicit in the statute, consistent with the purposes of the Act and one that the court has adopted in practice in previous cases arising under s. 44: see, e.g., Canada Packers Inc. v. Canada (Minister of Agriculture), supra; Montana Band of Indians v. Canada (Minister of Indian & Northern Affairs) (1988), 26 C.P.R. (3d) 68, 51 D.L.R. (4th) 306, [1989] 1 F.C. 143, 18 F.T.R. 15 (T.D.); Merck Frosst Canada Inc. v. Minister of Health and Welfare, supra. In light of the jurisprudence evolving in relation to the Act there can no longer be doubt that upon application for review, the court's function is to consider the matter de novo including, if necessary, a detailed review of the records in issue document by document.
I can only agree with the following statement, which appears at paragraph 12 of the respondent's factum in response to the applicant's motion to strike. At paragraph 12 of its factum, the respondent states:
[translation] It follows from the very essence and scheme of the ATIA that the government institution in possession of the records requiring disclosure should be a full-fledged party to the judicial review process provided by that Act and should be permitted to let the Court know its position on the disclosability of the records at issue; this is so, whether the government institution itself objects to the disclosure, in which case the ATIA imposes on it the explicit burden of establishing that it is authorized to refuse disclosure, or whether the objection comes from a third party, as in the case at bar;
In my view, sections 44 and 48 of the Access to Information Act leave no doubt that the government institution may fully participate in the argument regarding the disclosure or non-disclosure of the requested information. Those sections read:
44. (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision to disclose a record or a part thereof under this Act may, within twenty days after the notice is given, apply to the Court for a review of the matter.
(2) The head of a government institution who has given notice under paragraph 28(1)(b) or subsection 29(1) that a record requested under this Act or a part thereof will be disclosed shall forthwith on being given notice of an application made under subsection (1) in respect of the disclosure give written notice of the application to the person who requested access to the record.
(3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review.
. . .
48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
Section 48 expressly provides that a government institution that refuses disclosure has the burden of establishing that it is authorized to do so. Consequently, section 48 allows the government institution to take part in the argument. Section 44 applies when a government institution agrees to disclose. I am equally satisfied that the government institution may fully participate in the argument in such a case. In my view, it would be illogical to allow a government institution to participate fully only when it refuses disclosure.
For these reasons, I reached the conclusion that the motion to strike had to be dismissed. The respondent and intervener will be entitled to their costs both for the application for review and the motion to strike.
The coordinator is directed not to disclose Ms. Gauthier's certificates until the time for appealing my decision runs out. Should the applicant appeal my decision, the coordinator shall not disclose the certificates until the Court of Appeal has disposed of the appeal.