Dockets: T-146-11
T-147-11
Citation:
2012 FC 877
Ottawa, Ontario, July
12, 2012
PRESENT: The Honourable Madam Justice Gleason
Docket: T-146-11
BETWEEN:
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THE INFORMATION COMMISSIONER OF
CANADA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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Docket: T-147-11
AND
BETWEEN:
THE INFORMATION COMMISSIONER OF
CANADA
Applicant
and
THE MINISTER OF JUSTICE OF CANADA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
These
files involve applications by the Information Commissioner of Canada [the Commissioner]
under section 42 of the Access to Information Act, RSC, 1985, c A-1 [ATIA
or the Act] for review of the respondents’ refusal to disclose a protocol
entered into by the respondents in January of 2002, entitled “Principles to
Implement Legal Advice on the Listing and Inspection of RCMP Documents in Civil
Litigation” [the Protocol]. The Commissioner also requests that a
confidentiality order, applicable to large portions of these files, be lifted.
Background to
the applications
[2]
In
2006, Ms. Suzanne Boudreau made disclosure requests to both the Royal Canadian
Mounted Police [RCMP] and the Department of Justice [DOJ] under the ATIA,
requesting disclosure of the Protocol. After a period of internal consultation and
discussion between the RCMP and the DOJ, both respondents refused to disclose
the Protocol, taking the position that it fell into the exemptions under sections
23 and 21(1)(a) of the ATIA. These sections provide government institutions the
discretion to refuse to disclose any record which contains information that is
“subject to solicitor-client privilege” (section 23) or any record which
contains information that is “advice or recommendations developed by or for a
government institution or a minister of the Crown” (paragraph 21(1)(a)).
[3]
Following
the refusals, Ms. Boudreau made a complaint to the Commissioner under section 30
of the ATIA, alleging that the respondents' refusals violated the provisions of
the Act. The Commissioner conducted an investigation and in late August 2010
issued two reports (one involving the RCMP, the other involving the DOJ) in
which she determined that Ms. Boudreau’s complaints were well-founded and,
accordingly, that the respondents ought to have disclosed the Protocol.
Thereafter, the Commissioner made the present applications to this Court.
[4]
In
the course of conducting her investigation, the Commissioner obtained
disclosure of the Protocol and of a number of other documents, including
documents exchanged between the RCMP and the DOJ (or reflecting discussions between
their employees) regarding the positions the respondents intended to take in
response to Ms. Boudreau's disclosure requests. On June 15, 2011, Prothonotary
Tabib issued an order in each of these files, providing that large portions of
the record would be treated as confidential and limiting access to the
confidential material to the Court, the parties, their counsel and advisors “until
further order of the Court”. In her orders, Prothonotary Tabib specifically
contemplated that the ultimate determination of whether any portion of the
confidentiality orders would subsist following the determination of these
applications was a matter that would be decided by the judge hearing the merits
of the applications.
The standard of review
[5]
The
parties concur and the case law firmly establishes that in cases such as the
present there are two potentially relevant issues: first, whether the records
at issue, as a matter of law, fall within the exception in either section 23 or
paragraph 21(1)(a) of the ATIA; and, second, whether the government institution
properly exercised the discretion it possesses under these sections in
considering whether to disclose a record that falls within the exemptions. The
parties also concurred and the case law likewise firmly establishes that the
standard of review to be applied to the first inquiry is that of correctness
and to the second inquiry is that of is reasonableness (see e.g. Attaran v Canada
(Foreign Affairs), 2011 FCA 182 at paras 7, 18, 337 DLR (4th) 552;
Canada (Information Commissioner) v Canada (Minister of Industry), 2001 FCA
254 at paras 38-39, 45 [2001] FCJ No 1327 [Telezone]; Blank v Canada
(Minister of Justice), 2009 FC 1221 at para 31, 373 FTR 1).
The parties’ positions
[6]
The
Commissioner asserts that the Protocol is not covered by solicitor-client
privilege and does not constitute advice or recommendations within the meaning
of paragraph 21(1)(a) of the ATIA. She alleges in the alternative that if the Protocol
is found to either constitute a privileged communication or advice or
recommendations within the meaning of the exemptions in the Act, these
applications should nonetheless be granted as neither the RCMP nor the DOJ
properly exercised the discretion they possess under the ATIA in considering
whether or not to disclose the Protocol.
[7]
In
support of the Commissioner’s principal ground, counsel for the Commissioner
argues that the Protocol is not subject to solicitor-client privilege and does
not come within the scope of the exemption contained in paragraph 21(1)(a) of
the ATIA because the Protocol does not constitute advice but, rather, is an
agreement entered into between representatives of the respondents, in their
executive capacities, to reflect the manner in which both institutions will
govern themselves in litigation where disclosure of documents obtained by the
RCMP under its criminal investigative authority might be sought in civil
litigation. In support of this argument, the Commissioner highlights several
facets of the Protocol, which she submits lead to the conclusion that the
Protocol cannot constitute advice.
[8]
In
this regard, she first asserts that it is clear from the evidence that the
Protocol was negotiated between the respondents following provision of a legal
opinion by the DOJ to the RCMP on the matters to which the Protocol applies.
Counsel for the Commissioner submits that, by definition, advice (and
especially legal advice) cannot be the subject of negotiation and, indeed, it
would be unethical for counsel to negotiate the substance of their advice with
their clients. Second, the Protocol does not provide any advice at all; rather,
it is written in imperative language and casts obligations on both parties (including
the RCMP, the putative client) to take certain defined steps when the RCMP is
in possession of documents obtained through its criminal investigative powers
which are relevant to civil litigation against the Crown in Right of Canada.
Third, the Protocol is signed by both the RCMP and the DOJ whereas
advice would not typically be signed by the party to whom it is given.
[9]
Counsel
for the Commissioner makes two further points in support of the inapplicability
of the solicitor-client privilege exemption. She notes, first, that the
Protocol was signed after the notation “Confidential Solicitor-Client Privileged
Friday, 21 December 2001” was placed on it and that, while the draft Protocol
might well be subject to privilege, the final version is not. Finally, counsel
asserts that the record demonstrates there was a wide distribution of the Protocol
over the intranet in both the RCMP and the DOJ that belies an intention to
treat the document as confidential, which is one of the essential elements of a
privileged communication. Counsel draws an analogy between the Protocol and several
other memoranda of understanding [MOUs] which are publicly available between
the Federal Prosecution Service [FPS] (a portion of the DOJ) and various
clients, namely, the MOUs between the FPS and Canada Revenue Agency Respecting
the Conduct of Investigations and Prosecutions of Offences under Canada’s
Revenue Statues, between the RCMP and the FPS Respecting the Conduct of
Criminal Investigations and Prosecutions and between the Commissioner of
Competition and the Director of Public Prosecutions (the former name for the FPS)
with respect to the conduct of criminal investigations and prosecutions of
offences under the Competition Act, the Consumer Packaging and
Labelling Act, the Textile Labelling Act and the Precious Metals
Act. Counsel argues that, like these other MOUs, the Protocol should be
disclosed.
[10]
The
respondents, on the other hand, take the position that the Protocol falls
within the exemptions contained in both section 23 and paragraph 21(1)(a) of
the ATIA and that the RCMP and DOJ properly exercised the discretion they
possess under the ATIA.
[11]
More
specifically, in respect of the Commissioner’s principal argument, the
respondents assert that the position taken by the Commissioner is unduly
formalistic and places unwarranted emphasis on the format of the Protocol but
ignores its substance. In this regard, counsel for the respondents notes the
evidence establishes that the RCMP sought advice from the DOJ regarding its
responsibilities in respect of documentary disclosure in civil litigation in
those circumstances where it is in possession of documents obtained pursuant to
its criminal investigative powers. That advice was eventually provided through
the form of a formal legal opinion. Thereafter, the Protocol was developed to
provide guidance to the various employees in the DOJ and the RCMP, who might be
faced with situations to which the Protocol applies. As the Protocol does
nothing more than reflect the advice given by the DOJ, counsel argues it would
be a true triumph of substance over form to find it to not constitute advice
merely due to the way in which it is drafted. Counsel asserted that there would
be no dispute that the Protocol fell within the section 23 and paragraph 21(1)(a)
exemptions in the ATIA if, as opposed to being a signed agreement, the Protocol
instead recorded the advice given and directed employees in the RCMP and the
DOJ to follow it. He thus asserts that the Commissioner has improperly focused
on the format as opposed to the content of the Protocol and that both
exemptions apply because the Protocol does constitute advice.
[12]
Both
parties cited a substantial number of authorities in support of their positions
(with over 50 cases being referred to). I have referred to those that I find to
be relevant below. In addition to their positions on the primary issues, the
parties also made detailed submissions regarding the subsidiary issue of
whether or not the respondents properly exercised the discretion they possessed
under the ATIA, and their written materials also contained submissions on
terminating the confidentiality orders issued by Prothonotary Tabib. During the
hearing, however, counsel for both parties concurred that the issue of
confidentiality would be best dealt with by further written submissions,
following release of the Court's Judgment and Reasons for Judgment on the
merits of the Information Commissioner's applications.
[13]
For
the reasons set out below, I have determined that these applications must be
granted because the Protocol is neither subject to solicitor-client privilege
nor does it contain advice or recommendations developed by or for a government
institution or a minister of the Crown within the meaning of paragraph 21(1)(a)
of the ATIA. Rather, it is an agreement between the DOJ and the RCMP reflecting
their respective roles and responsibilities in situations where the RCMP is in
possession of documents obtained through its criminal search powers that might
be relevant in civil litigation. In light of this determination, it is not
necessary for me to consider the Commissioner’s alternative argument regarding
the unreasonableness of the exercise of discretion by the respondents because
they possessed no such discretion. Indeed, during the hearing of this matter,
counsel for the Commissioner submitted that in the event I were to rule in the
Commissioner’s favour on her primary position, it would not be necessary for me
to consider the alternative arguments regarding the alleged improper exercise
of discretion.
[14]
The
following issues, therefore, arise in this matter:
1. Does the Protocol
contain information that is subject to solicitor-client privilege; and
2. Does the Protocol
contain information that is advice or recommendations developed by or for a
government institution?
Does the Protocol
contain information that is subject to solicitor-client privilege?
[15]
Solicitor-client
privilege is not defined in the ATIA; accordingly, the, common-law test is
applicable to determine whether a document is privileged and thus immune from
disclosure under the Act (see e.g. Stevens v Canada (Prime Minister),
[1997] 2 FC 759, [1997] FCJ No 228, aff’d [1998] 4 FC 89 (FCA), at para 5 [Stevens];
Élomari
v Canada Space Agency,
2006
FC 863 at para 29, [2006] FCJ No 1100). Solicitor-client privilege encompasses both
litigation privilege and legal advice privilege. Litigation privilege applies
to documents and communications prepared in contemplation of or during the
conduct of litigation with respect to the conduct of the case. Legal advice
privilege, on the other hand, applies to communications between lawyers and
their clients for the purpose of obtaining legal advice. Here, the only
privilege claimed is legal advice privilege.
[16]
The
test applicable to determining whether or not a document or communication is
subject to legal advice privilege was summarized by Justice Dickson in Solosky
v The Queen, [1980] 1 S.C.R. 821, 105 DLR (3d) 745 at para 28 [Solosky],
as requiring the establishment of three elements: first, that what is involved
is a communication between a lawyer and his or her client; second, that the communication in question involved the
seeking or provision of legal advice; and, third, that the parties intended
the communication to be treated confidentially. The burden for establishing
each of these three elements lies with the claimant of the privilege and must
be met on a balance of probabilities (see e.g. Alan W Bryant, Sidney N Lederman
& Michelle K Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence
in Canada, 3d ed (Markam, Ont: LexisNexis, 2009) at s 14.43; McCarthy,
Tétrault v Ontario (1993), 95 DLR (4th) 94, 12 CPC (3d) 42 (Ont Prov Div)
at para 12; R v Harris, 1989 CarswellOnt 2755 at para 8).
[17]
Legal
advice privilege may exist between a lawyer employed as in-house counsel and
the corporation which employs the lawyer or between a government lawyer (who
would often be a member of the DOJ in the case of the federal government) and
the department or other governmental entity to which the lawyer gives advice (see
e.g. R v Campbell, [1999] SCJ No 16, [1999] 1 S.C.R. 565 at para 49 [Campbell];
Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 21, [2004]
1 SCR 809 [Pritchard]). Not all communications between a lawyer and his
or her client are privileged. For example, provision of purely business advice
by in-house counsel or purely social interactions between counsel and their
clients will not constitute privileged communications (see e.g. Campbell at para 50).
[18]
Much
of the modern jurisprudence has indicated that solicitor-client privilege is to
be generously construed as counsel for the respondent correctly notes. For
example, in Descôteaux et al v Mierzwinski, [1982] 1 S.C.R. 860, [1982] SCJ
No 43 [Descôteaux], the Supreme Court of Canada determined that legal
advice privilege would extend to a legal aid application that an individual
fills out in order to seek legal advice through the legal aid system, unless a
recognised exception to the doctrine of solicitor-client privilege is
applicable. (On the merits of that case, the privilege was held to be inapplicable
because the case concerned an allegation of fraud in applying for legal aid,
and privilege does not apply where the communications in issue are either
criminal in themselves or were made with a view to obtaining legal advice to
facilitate the commission of a crime.) In Descôteaux, Justice Lamer,
writing for the Court, stated the following with respect to legal advice privilege
at p 875 [citing to SCR]:
1. The confidentiality of communications between
solicitor and client may be raised in any circumstances where such
communications are likely to be disclosed without the client's consent.
2. Unless the law provides otherwise, when and to
the extent that the legitimate exercise of a right would interfere with another
person's right to have his communications with his lawyer kept confidential,
the resulting conflict should be resolved in favour of protecting the
confidentiality.
3. When the law gives someone the authority to do
something which, in the circumstances of the case, might interfere with that
confidentiality, the decision to do so and the choice of means of exercising
that authority should be determined with a view to not interfering with it
except to the extent absolutely necessary in order to achieve the ends sought
by the enabling legislation.
4. Acts providing otherwise in situations under
paragraph 2 and enabling legislation referred to in paragraph 3 must be
interpreted restrictively.
[19]
To
somewhat similar effect, in Stevens this Court determined, and the Federal
Court of Appeal affirmed, that legal advice privilege extended to accounts of
solicitors tendered to the Privy Council Office by commission counsel.
[20]
In
Pritchard, the Supreme Court of Canada held that a legal opinion
provided by counsel to the Human Rights Commission was immune from disclosure
because it was privileged. In so deciding, Justice Major noted at para 16 that:
Generally, solicitor-client privilege will apply as
long as the communication falls within the usual and ordinary scope of the
professional relationship. The privilege, once established, is considerably
broad and all-encompassing. In Descôteaux… the scope of the privilege
was described, at p. 893, as attaching "to all communications made within
the framework of the solicitor-client relationship, which arises as soon as the
potential client takes the first steps, and consequently even before the formal
retainer is established." The scope of the privilege does not extend to
communications (1) where legal advice is not sought or offered, (2) where it is
not intended to be confidential, or (3) that have the purpose of furthering
unlawful conduct... [citations omitted].
[21]
Likewise,
in Canada (Privacy Commissioner) v Blood Tribe Department of Health,
2008 SCC 44 at para 10, [2008] 2 S.C.R. 574 [Blood Tribe], Justice Binnie,
writing for the Court, noted that legal advice privilege “… is now
unquestionably a rule of substance applicable to all interactions between a
client and his or her lawyer when the lawyer is engaged in providing legal
advice or otherwise acting as a lawyer rather than as a business counsellor or
in some other non-legal capacity.” He accordingly held that legislative
language that could be interpreted broadly to impinge upon legal advice privilege
must be narrowly construed (at para 11).
[22]
Legal
advice privilege is afforded such a high degree of protection because it is one
of the cornerstones of our legal system and of the rule of law. As stated by
Justice Major in R v McClure, 2001 SCC 14 at para 2, [2001] 1 S.C.R. 445:
[…] This privilege is fundamental to the justice
system in Canada. The law is a complex web of interests, relationships and
rules. The integrity of the administration of justice depends upon the unique
role of the solicitor who provides legal advice to clients within this complex
system. At the heart of this privilege lies the concept that people must be
able to speak candidly with their lawyers and so enable their interest to be
fully represented.
[23]
Counsel
for the respondents asserts that once a solicitor-client relationship exists,
all communications that occur between the solicitor and the client are
privileged and, accordingly, as there was a solicitor-client relationship
between the DOJ and the RCMP in respect of the issues covered by the Protocol,
the Protocol must also be privileged. I do not agree. The case law does not
recognize such a sweeping scope for legal advice privilege, and it is erroneous
to equate the need to construe exceptions to legal advice privilege narrowly
with an expanded definition of what types of communications may attract
privilege in the first place. Where, as here, what is in issue is whether a
document is privileged (as opposed to a situation where an exemption to
privilege is claimed to apply), the court must apply the criteria from Solosky,
which require that each communication in respect of which privilege is invoked
be examined individually.
[24]
In
Solosky at para 28, Justice Dickson noted that “… privilege can only be
claimed document by document, with each document being required to meet the
criteria for privilege…” The Solosky test for privilege has been
consistently applied and, contrary to what counsel for the respondent asserts, the
case has not been overturned or overtaken by subsequent jurisprudence. In its
recent decisions in Blood Tribe and Pritchard (both cited above) the
Supreme Court of Canada relied upon and applied the test from Solosky.
Likewise, this test has been consistently applied by this Court and the Federal
Court of Appeal (see e.g. Telus Communications Inc v Canada (Attorney
General), 2004 FCA 380 at para 11, [2004] FCJ No 1918; Stevens (FCA)
at paras 19-21; Abi-Mansour v Canada (Revenue Agency), 2012 FC 376 at
para 2; Slansky v Canada (Attorney General), 2011 FC 1467 at para 37, 211
ACWS (3d) 288).
[25]
In
applying the tripartite test from Solosky to the Protocol, it is my view
that the Protocol fails to meet the second branch of the test in that it is not
a communication involving the seeking or provision of legal advice. As counsel
for the Commissioner correctly notes, the Protocol was negotiated; legal advice
is not the subject of negotiation between solicitor and his or her client. In
addition, the Protocol is signed by both the putative lawyer (the DOJ) and the
putative client (the RCMP); a communication providing or seeking legal advice
is not typically signed by both the client and the lawyer. Most importantly,
though, the Protocol on its face is in no way concerned with the seeking or
provision of legal advice and does not contain any advice. Rather, it is an
agreement which is drafted mandatory language and purports to cast obligations
on both the DOJ and the RCMP. In other words, in the agreement, the
parties have moved past the stage of seeking or providing advice and have
entered into a document that reflects their understandings as to their
respective roles and obligations regarding the way in which they will operate
when the RCMP is in possession of documents, obtained through its criminal
investigative powers, that might be relevant in civil litigation against the
federal Crown. In this regard, it is no different from the other MOUs counsel
for the applicant referred to or, indeed, from any other agreement that the DOJ
might enter into with any other branch of government or entity.
[26]
This
is evident from the purpose clause in paragraph 4 of the “whereas clauses” of
the Protocol, which provides that the Protocol is “… intended to provide a
mechanism to enable the Attorney General of Canada and the RCMP to discharge
their respective roles when the RCMP has documents in its criminal
investigative files that may be relevant civil litigation involving the federal
Crown as a party”. This clause clearly reflects that the Protocol is and is
intended to be an agreement, detailing the two entities' understandings as to
their respective roles and obligations, as opposed to a piece of legal advice
or a communication involved with the seeking or provision of legal advice.
[27]
Counsel
for the respondents asserts that the Protocol is on all fours with the instructions
to counsel referred to in Ministry of Community and Social Services v
Cropley et al (2004), 70 OR (3d) 680, Order PO-2719 and Order PO-2784,
which were found to be privileged and thus exempt from disclosure under
Ontario access to information legislation. I disagree and view the documents in
those cases as being fundamentally different from the Protocol. The Ontario
cases all involved requests for disclosure of standing instructions and advice
to counsel regarding the way in which litigation was to be conducted, which were
drafted by in-house counsel for the Ministry and were intended to be provided
to counsel retained to act on behalf of the Ministry. Here, on the other hand,
the Protocol does not provide advice or instructions, but, as noted, reflects
an agreement between the DOJ and the RCMP regarding their respective roles and
responsibilities.
[28]
The
fact that the Protocol was marked "Confidential and Solicitor-Client Privileged",
prior to being signed is not in any way determinative of whether or not it
constitutes a privileged communication. In this regard, it is self-evident that
a mere claim of privilege over a document does not render it subject to
solicitor-client privilege (see e.g. British Columbia (Securities
Commission) v S (BD), 2003 BCCA 244 at para 45, 226 DLR (4th) 393; Ferlatte v
Ventes Rudolph Inc,
[1999]
QJ No 2735, JE 99-1704 (Qc Sup Ct) at para 13). In addition, as counsel for the
Commissioner correctly notes, drafts of agreements or pleadings (shared between
lawyer and client) are typically privileged, but the privilege lapses when the
final agreement is signed (or when the draft agreement is exchanged with the
other party). For example, in In Re David Sokolov, [1968] CTC 414, 68
DTC 5266 (MCQB), an unexecuted version of an agreement (exchanged between a
lawyer and his client) was found to be privileged, but the Court noted at para
20 that had it been signed, it would not have been privileged. (See also Simpson
v The Queen, [1996] 2 CTC 2687, [1996] TCJ No 391 at para 70; Dixon v
Canada (Deputy Attorney General), [1991] OJ No 1735, [1992] 1 CTC 109 (Ont
Sup Ct) at subpara 36(h) to similar effect).
[29]
The
Protocol, therefore, fails to meet the second portion of the test from Solosky
as it does not constitute a communication involving the seeking or provision of
legal advice. Given this determination, it matters not whether or not the
parties intended to treat the Protocol as being a confidential document as each
of the criteria from Solosky must pertain in order for a document to be
subject to legal advice privilege.
Does
the Protocol contain information that is advice or recommendations developed by
or for a government institution?
[30]
Paragraph
21(1)(a) of the ATIA, allows for the exemption from disclosure of documents
that contain information that is “advice or recommendations” developed by or
for a government institution.
[31]
The
purpose of the exemption in paragraph 21(1)(a) of the ATIA has been stated to
be the “removing [of] impediments to the free and frank flow of communications
within government departments and ensuring that the decision-making process is
not subject to the kind of intense outside scrutiny that would undermine the
ability of government to discharge its essential functions” (Telezone, cited
above, at para 51; see also Canadian Council of Christian Charities v Canada
(Minister of Finance), [1999] 4 FC 245, 168 FTR 49 at paras 30-32). In Telezone,
the Federal Court of Appeal noted that “advice” is a broader concept than
recommendation and would include expressions of opinion on policy-related
matters, except those of a largely factual nature (at paras 50 and 52). A
recommendation, on the other hand, sets out a suggested course of action to the
government institution.
[32]
It
is common ground between the parties that the RCMP is a government institution
under the ATIA. However, they differ as to whether or not the Protocol
constitutes “advice”. For the same reasons that the Protocol does not
constitute legal advice, it likewise does not represent advice given to the
RCMP and, therefore, is not protected from disclosure under paragraph 21(1)(a)
of the ATIA. In this regard, as noted above, the Protocol lacks the hallmark of
advice in that as opposed to containing advice on how to deal with documents in
question, it is rather an agreement between the DOJ and the RCMP, setting out
their respective roles and responsibilities. Moreover, in reading the Protocol,
one has no idea as to whether or not it actually reflects the advice that the
DOJ gave to the RCMP on the issue. Thus, its disclosure would in no way limit
the free and frank flow of information essential to the decision-making process
in government and would not harm the interests that the exemption in paragraph
21(1)(a) of the ATIA is designed to protect.
[33]
Counsel
for the respondent argues that the Protocol is akin to a document found to fall
within the scope of the paragraph 21(1)(a) exemption in Telezone. The document in question in the Telezone
case was a memo from a senior departmental official to the Minister, setting
out advice and incorporating the Minister’s decision. Telezone argued that at
least that portion of the document which reflected the final decision ought to
be disclosed as it was no longer advice. The argument was rejected because the
documents in question contained both advice and a record of the final decision,
which could not be excised from each other. The Court of Appeal, however, noted
that if the final decision had been contained in a separate document, it might
well be subject to disclosure under the Act, stating that “[t]he situation
might well have been different if, after the receipt of the official's report,
a separate document had been created setting out the bases of the Minister's
decision…” (at para 74).
[34]
Effectively,
what we have here is a situation where a separate document was created, which
may or may not reflect the advice that was given. The Protocol, therefore, does
not fall within the exemption contained in paragraph 21(1)(a) of the ATIA.
[35]
In
light of the foregoing, these applications will be granted and the respondent
will be required to disclose the Protocol because it does not fall within
either of the claimed exemptions under the ATIA.
Request for removal
of the Confidentiality Order
[36]
As
noted, the parties jointly requested that they be allowed to file written
submissions on the issue of what portions of the record should remain
confidential following my decision on the merits as their positions will be
impacted by the decision on the merits. This approach makes sense. Accordingly,
counsel for the parties shall consult with each other to agree upon the dates
for exchange of their submissions and shall inform the Court of their agreement
(or inability to reach an agreement on the dates for exchange of their
submissions on the confidentiality issue) by no later than September 7, 2012.
Costs
[37]
The
parties shall file submissions on costs by no later than September 7, 2012 of
no more than 10 pages. Each party may have two weeks to file a reply of up to 5
pages to the other’s costs submissions.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
These
applications are granted;
2.
The
respondents shall disclose the Protocol to Ms. Boudreau;
3.
The
parties shall advise the Court by no later than September 7, 2012 of whether
they have agreed on dates for the exchange of submissions respecting what
portions of the record shall remain confidential;
4.
The
parties shall file costs submissions of no more than 10 pages by no later than
September 7, 2012 and may file replies to each other’s costs submissions, if they
wish, of no more than 5 pages by no later than September 21, 2012.
"Mary
J.L. Gleason"
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