Date: 20090210
Docket: T-1529-07
Citation: 2009
FC 131
Ottawa, Ontario,
February 10, 2009
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ENVIRONMENTAL
DEFENCE CANADA,
GEORGIA STRAIT ALLIANCE,
WESTERN CANADA WILDERNESS COMMITTEE
and DAVID SUZUKI FOUNDATION
Applicants
and
MINISTER OF FISHERIES
AND OCEANS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
respondent Minister of Fisheries and Oceans (the Minister) appeals the order of
Prothonotary Lafrenière dated November
4, 2008. The
prothonotary ordered the Minister to provide the applicants with a certified
unredacted copy of the Memorandum for the Deputy Minister of Fisheries and
Oceans dated July 18, 2007 (the Action Memorandum). Prothonotary Lafrenière
concluded that the Minister had failed to establish that the redacted passage
is protected by solicitor-client privilege. I am of the same view. Therefore,
the Minister’s motion will be dismissed.
Background
[2]
The
Nooksack dace is a small freshwater minnow that is known to inhabit four rivers
in the Fraser Valley area of British Columbia. In 1996, the Nooksack dace
was designated as an endangered species by the Committee on the Status of
Endangered Wildlife in Canada. As a result, it was
included on the List of Wildlife Species at Risk in Schedule 1 of the Species
at Risk Act, S.C. 2002, c. 29 (SARA) when the provisions of the SARA
dealing with recovery planning came into force. This inclusion triggers
various obligations under the SARA. One such obligation requires the Minister,
within specified timelines, to prepare a recovery strategy for extirpated,
endangered or threatened species and a management plan for species of special
concern.
[3]
The
underlying judicial review application arises from the July 23, 2007 decision of the Deputy
Minister to approve a recovery strategy for the Nooksack dace. More
specifically, the applicants (environmental groups that work to advance the
conservation of species-at-risk in Canada)
claim that the recovery strategy fails to comply with paragraph 41(1)(c) of the
SARA in that it did not identify the Nooksack dace’s critical habitat to the
extent possible. The applicants claim that the Minister lacks authority to
remove scientists’ critical habitat maps from recovery strategies for the
purpose of enabling the Department of Fisheries and Oceans (DFO) to first
internally ‘peer review’ this information.
[4]
In their
notice of application for judicial review, the applicants requested the record
of material that was before the Minister and DFO relevant to the preparation
and approval of the Nooksack dace recovery strategy. Mr. Pardeep Ahluwalia, on
behalf of the Minister, transmitted to the Court and to the applicants pursuant
to Rule 318 of the Federal Courts Rules, SOR/98-106, a certified copy of
the material relevant to the application that was in the possession of the
Minister and not in the possession of the applicants (the Record). The Record
includes the Action Memorandum of slightly more than three pages in length.
Two sentences comprising six lines of the Action Memorandum are redacted. The
Minister claims solicitor-client privilege with respect to the redacted
portion.
[5]
Before the
prothonotary, the applicants challenged, among other things, the Minister’s
claim to solicitor-client privilege. The prothonotary examined the redacted
portion of the Action Memorandum and concluded that it was not privileged. He
noted that the memorandum had not been prepared by a solicitor and that the
source and content of the legal advice could not be determined. In the prothonotary’s
view, the Minister had failed to establish that the impugned passage is
confidential and directly related to seeking, formulating or giving legal
advice. Further, he held that any privilege that may have existed had been
waived by the disclosure of closely-related information in the remainder of the
Action Memorandum.
[6]
On the
return of this motion, the applicants seek to introduce new evidence,
specifically the affidavit of Ranj Dhaliwal, affirmed December 19, 2008, to
which is exhibited an Action Memorandum in another proceeding (Court File No.
T-1552-08). This Action Memorandum came into the applicants’ possession on
November 6, 2008, two days after Prothonotary Lafrenière’s order.
Issues
[7]
The
factual context gives rise to three issues:
(a) the proposed
admission of the “new evidence”;
(b) the standard of
review applicable to Prothonotary Lafrenière’s decision; and
(c) the
alleged error of the prothonotary in failing to find the redacted portion of
the Action Memorandum is protected by solicitor-client privilege.
New Evidence
[8]
The
criteria for filing new evidence are delineated in Atlantic Engraving Ltd.
v. Lapointe Rosenstein (2002), 299 N.R. 244 (F.C.A.) (Atlantic Engraving).
The applicants must demonstrate that the evidence to be adduced will serve the
interests of justice, will assist the court and will not cause substantial or
serious prejudice to the other side. Additionally, it must be shown that the
evidence was not available before cross-examination. The discretion of the
Court to permit the filing of additional material should be exercised with
great circumspection: Mazhero v. Canada (Industrial Relations Board) (2002), 292 N.R. 187 (F.C.A.)
(Mazhero).
[9]
Although
the applicants have satisfied me that Exhibit “A” to the Dhaliwal affidavit was
not previously available to them, I am not persuaded that its admission will
serve the interests of justice or that it will assist the court. First, the
admission of the document is not essential to demonstrate the purpose for which
it is tendered. The label describing a document is not determinative; it is
merely a factor to be considered: Abrams v. Grant, [1978] O.J. No. 2283;
5 C.P.C. 308 (Abrams). Moreover, the jurisprudence contains sufficient
reference to the “labelling” of Action Memoranda to enable the applicants to
make their point: Chatham-Kent (Municipality) v. Canada (Minister of Indian Affairs
and Northern Development),
[2002] 1 C.N.L.R. 103 (Fed. T.D.), aff’d. (2002), 289 N.R. 123 (F.C.A.) (Chatham-Kent);
Telus Communications Inc. v. Canada (Attorney General) (2002), 329 N.R. 96 (F.C.A.)
(Telus). The “new” Action Memorandum was not before the Minister, it
was drafted one year after the Action Memorandum in question, it relates to a
different species under a different section of the SARA. Its relevance, if
any, is marginal. For these reasons, the applicants’ motion is dismissed.
The Standard of Review
[10]
Discretionary
orders of prothonotaries ought not to be disturbed on appeal to a judge unless
the questions raised in the motion are vital to the final issue of the case or
the orders are clearly wrong in the sense that the exercise of discretion by
the prothonotary was based on a wrong principle or upon a misapprehension of
the facts: Merck & Co. Inc. v. Apotex Inc., [2004] 2 F.C.R. 459
(C.A.) (Merck), leave to appeal dismissed, [2004] S.C.C.A. No. 80; Canada
v. Aqua-Gem Investments Ltd., [1993] 2 F.C.R. 425 (C.A.) (Aqua-Gem). There is no
suggestion that the prothonotary’s determination is vital to the final issue in
this matter.
[11]
The
Minister claims that the decision is clearly wrong because it is based on an
error of law and a misapprehension of the facts. Therefore, it ought to be
reviewed de novo. The applicants contend that since the prothonotary
made no error of legal principle and did not misapprehend the facts, it makes
no difference whether the order is reviewed under the de novo standard
or otherwise. The applicants note that determination as to whether the redacted
passage is subject to solicitor-client privilege is hardly a discretionary
matter. Thus, it takes no exception to a de novo review. Because I
arrive at the same result as the prothonotary, I see no need to dwell on this
issue.
Solicitor-Client Privilege
[12]
The basic
principles underlying the concept of solicitor-client privilege are not in
dispute. It is common ground that the Supreme Court has repeatedly recognized
the sanctity of solicitor-client privilege: Descôteaux v. Mierzwinski,
[1982] 1 S.C.R. 860 (Descôteaux); R. v. Campbell, [1999] 1 S.C.R.
565 (Campbell); R. v. McClure, [2001] 1 S.C.R. 445 (McClure);
Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3
S.C.R. 209 (Lavallee); Pritchard v. Ontario (Human Rights Commission),
[2004] 1 S.C.R. 809 (Pritchard); Goodis v. Ontario (Ministry of
Correctional Services), [2006] 2 S.C.R. 32 (Goodis); Minister of
Justice v. Blank et al, [2006] 2 S.C.R. 319 (Blank).
[13]
The noted
jurisprudence establishes that solicitor-client privilege is a substantive
right. It is a privilege that exists between a client and his or her lawyer.
It will generally apply as long as the communication falls within the usual and
ordinary scope of the professional relationship. Once established, the
privilege is broad and nearly all-encompassing. The principle “once privileged,
always privileged” applies. However, the privilege is not absolute and it will
yield in some narrowly prescribed circumstances that are not relevant here.
[14]
In the
private sector, the relationship between a lawyer and his or her client is
usually evident. In circumstances involving public lawyers in government
agencies, the relationship must be assessed on a case-by-case basis. In Campbell, Justice Binnie explained
that, owing to the nature of the work, in-house counsel will often have both legal
and non-legal responsibilities. Where government lawyers give policy advice
outside the realm of their legal responsibilities, such advice is not protected
by solicitor-client privilege. Only those communications directly related to
the seeking, formulating or giving of legal advice are protected.
[15]
Privilege
is a subject with which judges are acquainted: Goodis. In adjudicating
a claim of privilege, the court must examine the actual statements said to be
privileged in order to draw a conclusion as to whether privilege arises or
whether it has been waived. The onus lies on the party claiming the privilege
to demonstrate that the privilege exists: 1185740 Ontario Ltd. v. Canada (Minister of National
Revenue)
(1999), 247 N.R. 287 (F.C.A.) (1185740); British Columbia (Securities
Commission) v. B.D.S. (2003), 13 B.C.L.R. (4th) 107 (C.A.) (B.D.S).
[16]
Guided by
these principles, I turn to the circumstances of this matter. Notably, in my
view, this case is not about whether communications that are protected by
solicitor-client privilege should yield to a greater interest. Put another
way, this case is not an exercise in balancing interests. The Minister’s
forceful submissions regarding the paramountcy of solicitor-client privilege
are accurate and are not disputed. However, that is not what concerns us. The
issue is whether solicitor-client privilege does exist in relation to two
redacted sentences in the Action Memorandum. That is a threshold question and
the burden is on the Minister to demonstrate that the conditions precedent to
sustain the claim of solicitor-client privilege are met.
[17]
The
prerequisites for a valid claim of solicitor-client privilege were delineated
by Mr. Justice Dickson, as he then was in Solosky v. R., [1980] 1 S.C.R.
821 (Solosky) at p. 837.
They are:
(i) a communication between solicitor and
client; (ii) which entails the seeking or giving of legal advice; and (iii)
which is intended to be confidential by the parties.
[18]
In Solosky,
an inmate attempted to invoke solicitor-client privilege to prevent the
Director of Millhaven Institution from censoring his correspondence with his
lawyer. The solicitor-client relationship was not an issue. As noted earlier,
this is not always so for government lawyers.
[19]
Mr.
Ahluwalia’s affidavit details his perception regarding the redactions.
Paragraphs one to three contain identifying information such as his role as the
Director General of the DFO Species at Risk Directorate and his involvement in
the preparation of the Action Memorandum. Paragraphs four and five read as
follows:
The redacted portion of the Memorandum
reflect the legal advice obtained from counsel with the Department of Justice
(“DOJ”) requested by the DFO in confidential communications between myself and
other DFO officials and the DOJ counsel for the purposes of seeking and
obtaining legal advice.
I expected these communications between
the DOJ counsel and the DFO officials to be and to remain confidential.
[20]
These statements
track the wording of the conditions precedent prescribed by Justice Dickson.
In my view, the comments are not dispositive.
[21]
Whether
solicitor-client privilege is properly claimed is a substantive issue to be
determined by the court: Goodis. If I were to accept paragraphs four
and five of Mr. Ahluwalia’s affidavit as conclusive, I would be abdicating my
judicial responsibility to determine the substantive issue. That is not to say
that Mr. Ahluwalia’s evidence is to be disregarded. Rather, it is a question
of the weight that ought to be assigned to it.
[22]
I agree
with Prothonotary Lafrenière that, on its face, the redacted portion of the
Action Memorandum does not appear to be privileged. The Minister is correct
that the memorandum need not be authored by a solicitor: Telus.
Additionally, as stated earlier, the label describing the document as
“unclassified” is but a factor to consider although I note that the Minister’s
affiant, Ms. Webb, on cross-examination, stated that the document was not
confidential.
[23]
These
circumstances involve government lawyers. In Pritchard, Mr. Justice
Major referred to Justice Binnie’s comments in Campbell and reiterated
the indicia for determining claims of solicitor-client privilege in
circumstances when government in-house counsel are involved. At paragraph 20,
he stated:
Owing to the nature of the work of
in-house counsel, often having both legal and non-legal responsibilities, each
situation must be assessed on a case-by-case basis to determine if the
circumstances were such that privilege arose. Whether or not the privilege
will attach depends on the nature of the relationship, the subject-matter of
the advice, and the circumstances in which it is sought and rendered. (my
emphasis)
[24]
The
Minister, in my view, has fallen short of this standard and has failed to
provide the information required for a proper assessment. Regarding the
Minister’s submission that disclosure of the name of the lawyer is tantamount
to disclosure of that which is subject to solicitor-client privilege, I would
think that if that were so, it ought to have been stated in Mr. Ahluwalia’s
affidavit. Simply put, the Minister has not met the burden of establishing the
existence of solicitor-client privilege with respect to the redacted passage of
the Action Memorandum. The prothonotary did not err as alleged.
Waiver
[25]
My
determination regarding solicitor-client privilege is dispositive. However,
Prothonotary Lafrenière concluded that, even if the privilege exists, it was
waived. Therefore, I will briefly address the issue of waiver.
[26]
Waiver
of solicitor-client privilege is established when it is demonstrated that the
possessor of the privilege knows of the existence of the privilege and
voluntarily evinces an intention to waive it: K.F. Evans Ltd. v. Canada (Minister of
Foreign Affairs) (1996), 106 F.T.R. 210 (T.D.) (K.F. Evans).
Waiver may also occur by implication. The latter concept is addressed in
Sopinka, Lederman and Bryant, The Law of Evidence in Canada 2d ed. (Toronto: Butterworths,
1999) at 758:
As to what constitutes waiver by implication, Wigmore said:
Judicial decision gives no clear answer to this question.
In deciding it, regard must be had to the double elements that are predicated
in every waiver, i.e. not only the element of implied intention, but also the
element of fairness and consistency. A privileged person would seldom be found
to waive, if his intention not to abandon could alone control the situation.
There is always also the objective consideration that when his conduct touches
a certain point of disclosure, fairness requires that his privilege shall cease
whether he intended that result or not. He cannot be allowed, after disclosing
as much as he pleases, to withhold the remainder. He may elect to withhold or
to disclose, but after a certain point his election must remain final.
[27]
In
S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd.
(1983), 35 C.P.C. 146, 45 B.C.L.R. 218 (S.C.) (S&K) , Madam Justice
McLachlin, as she then was, described it in this way:
(W)aiver may also occur in
the absence of an intention to waive, where fairness and consistency so
require. Thus waiver of privilege as to part of a communication will be held to
be waiver as to the entire communication. Similarly, where a litigant relies on
legal advice as an element of his claim or defence, the privilege which would
otherwise attach to that advise is lost: Rogers v. Hunter, [1982] 2
W.W.R. 189.
...
[10] ... In the cases where
fairness has been held to require implied waiver, there is always some
manifestation of a voluntary intention to waive the privilege at least to a
limited extent. The law then says that in fairness and consistency, it must be
entirely waived ...
[28]
In
Bank Leu Ag v. Gaming Lottery Corp. (1999), 43 C.P.C. (4th)
73 (Ont. S.C.) (Bank
Leu Ag), at paragraph 5, Mr. Justice Ground stated that privilege “will be
deemed to have been waived where the interests of fairness and consistency so
dictate or when a communication between a solicitor and client is legitimately
brought into issue in an action”.
[29]
In
Apotex Inc. v. Canada (Minister of Health), [2004] 2
F.C.R. 137 (F.C.) (Apotex), Mr. Justice Lemieux concluded that the
jurisprudence does not support the proposition that reliance on the contents or
substance of the legal advice received is conclusive. Further, fairness to a
party is a guiding principle when determining whether solicitor-client
privilege is deemed to have been waived. Balancing that element of fairness
against the values underlying the privilege depends on the circumstances.
[30]
Prothonotary
Lafrenière found that any privilege that may have existed with respect to the
redacted portion of the Action Memorandum was waived because of the disclosure
of closely-related information. I am of the same mind.
[31]
I
accept the Minister’s position that there is no explicit reference to legal
advice to be found in the unredacted portion of the Action Memorandum, or for
that matter, in any of the Minister’s documentation. However, the record,
particularly Ms. Webb’s affidavit and to a lesser extent her cross-examination,
contains information akin to the redacted sentences of the Action Memorandum.
[32]
It
is not open to the Minister to assert that the content of the redacted portion
contains legal advice and is therefore privileged and, at the same time, assert
that the same information contained elsewhere in the Minister’s record is not a
disclosure of legal advice. The Minister argues that there was no implied
waiver because the Minister’s pleadings do not rely on the legal advice
contained in the redaction, as was the situation in K.F. Evans and Campbell.
I reject that argument. Reliance is not, in and of itself, determinative of
the issue of implied waiver: Bank Leu Ag; Apotex.
[33]
In
my view, given the Minister’s disclosure, elsewhere in the record, of
information closely-related to that in the redacted sentences, it would be
unfair and inconsistent for the Minister to withhold the redacted portion of
the Action Memorandum. Consequently, the prothonotary was quite right to
conclude that any privilege that exists in the redacted sentences has been
implicitly waived by the Minister.
JUDGMENT
The motion is dismissed. The
redacted sentences contained in the Action Memorandum will remain redacted
pending the expiration of the appeal period, or if an appeal is taken, until
the appeal is determined by the Federal Court of Appeal.
“Carolyn
Layden-Stevenson”
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