Date: 20021128
Docket: T-1214-02
Neutral citation: 2002 FCT 1234
Vancouver, British Columbia, Thursday, the 28th day of November, 2002
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
JOAN A. WILLIAMSON
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA representing the Minister designated
under the Cultural Property Export and Import Act
Respondent
REASONS FOR ORDER AND ORDER
[1] Mrs. Joan A. Williamson (the "Applicant") has commenced an application for judicial review relative to a decision made pursuant to the Cultural Property Export and Import Act, R.S.C. 1985, Chap. C-51.
[2] The decision, made by Virginia Baker, refused an application for the designation of the Fort Saskatchewan Museum and Historic Sites as an institution under that statute.
[3] The Applicant requested production of the tribunal record pursuant to the Federal Court Rules, 1998, Rule 317. The Respondent objected to the production of certain material and filed an objection pursuant to Rule 318. The Applicant now brings a motion in response to that objection.
[4] The Respondent argues that Ms. Baker, the decision-maker, has properly complied with her obligations pursuant to Rule 318 by producing the documents identified in a schedule attached to the affidavit of Joanne Romans, a legal assistant with the Department of Justice Canada in Edmonton. The Respondent also submits that the decision-maker was entitled to obtain legal advice on a confidential basis and is entitled to assert solicitor-client privilege in relation to that advice.
[5] Furthermore, the Respondent argues that the proper procedure for determining whether the undisclosed material is subject to solicitor-client privilege is for the Court to review the documents for which privilege is claimed. In this regard, the Respondent relies on 1185740 Ontario Ltd. v. Canada (Minister of National Revenue), [1999] F.C.J. 1432 (F.C.A.).
[6] The Applicant takes the position that the material described as solicitor-client privileged relates instead to evidentiary matters and is not privileged. She characterizes any statement of law given to the decision-maker as legal argument before the tribunal that should be disclosed as part of the tribunal record.
[7] She also argues that where the material requested is relevant to proving the grounds for the application for judicial review, it must be produced as long as it was before the decision-maker at the time the decision was made. In this regard, the Applicant relies on the test enunciated by Justice Nadon and upheld on this point by the Federal Court of Appeal in 1185740 Ontario Ltd., supra, at para. 3, that is whether or not a document has been "used by the tribunal in its hearing, deliberations or decision". The Applicant submits that in this case, the advice was "used" by the decision-maker and must be provided.
[8] The principles governing solicitor-client privilege are well known and are summarized by the Supreme Court of Canada in [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821 at 835. The hallmark of such privilege is confidentiality.
[9] However, a party asserting such privilege must do more than make the bald assertion that a document is subject to solicitor-client privilege. The party asserting such privilege must establish the facts upon which the privilege is claimed; see Lumonics Research Ltd. v. Gordon Gould et al., [1983] 2 F.C. 360 and 1185740 Ontario Ltd. v. Canada (Minister of National Revenue), [1999] F.C.J. No. 1990 (F.C.T.D.) at paragraph 7.
[10] In this case, the respondent has filed the affidavit of Joanne Romans. That affidavit addresses only the documents that the Respondent is prepared to produce as constituting the tribunal record. It is silent on the claim for non-disclosure on the basis of solicitor-client privilege or the basis for such a claim.
[11] The Respondent submitted no evidentiary foundation to support the assertion that the challenged document is subject to solicitor-client privilege. The document was produced to the Court in a sealed envelope. I have reviewed the document and, in the absence of an affidavit from the Respondent setting forth the relevant facts and circumstances relating to the document, I am unable to conclude that the document reflects legal advice as opposed to legal argument, as alleged by the Applicant. The affidavit of Ms. Romans fails to show otherwise.
[12] As noted by Justice Nadon in 1185740 Ontario Ltd., supra, the burden of establishing solicitor-client privilege lies with the Respondent. The burden has not been discharged. The objection raised by the Respondent is not established and the Applicant succeeds on her motion. The challenged document will be produced by the Respondent within ten days of this Order.
ORDER
THIS COURT ORDERS that the challenged document will be produced by the Respondent within ten days of this Order.
(Sgd.) "E. Heneghan"
J.F.C.C.
I HEREBY CERTIFY that the above document
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is a true copy of the original filed of record
in the Registry of the Federal Court of Canada
on the _______ day of ___________ A.D. 20 ____
Dated this _______ day of ____________ 20 ____
Sandra McPherson, Registry Officer
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1214-02
STYLE OF CAUSE: JOAN A. WILLIAMSON v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: November 4, 2002
REASONS FOR ORDER AND ORDER: HENEGHAN J.
DATED: November 28, 2002
APPEARANCES:
Mr. Nathan Whitling for Applicant
Ms. Christine Ashcroft for Respondent
SOLICITORS OF RECORD:
Parlee McLaws, LLP. for Applicant
Edmonton, AB
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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