Date: 20010906
Docket: A-638-00
Neutral citation: 2001 FCA 259
CORAM: ROTHSTEIN J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
GOVERNMENT OF THE NORTHWEST TERRITORIES
and PUBLIC SERVICE ALLIANCE OF CANADA
Respondents
Heard at Ottawa, Ontario, on September 5, 2001.
Judgment delivered at Ottawa, Ontario, on September 6, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
Date: 20010906
Docket: A-638-00
Neutral citation: 2001 FCA 259
CORAM: ROTHSTEIN J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Appellant
and
GOVERNMENT OF THE NORTHWEST TERRITORIES
and PUBLIC SERVICE ALLIANCE OF CANADA
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal from the decision of a Motions Judge, reported at (2000), 191 F.T.R. 266, granting in part a motion for disclosure of the contents of certain documents referred to in a document list produced by the Government of the Northwest Territories ("GNWT") in the course of complex and lengthy proceedings before the Canadian Human Rights Tribunal ("Tribunal") arising from a pay equity complaint by the Public Service Alliance of Canada ("PSAC").
[2] With respect to 20 of those documents, the GNWT claimed immunity from disclosure on the basis of section 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The Motions Judge disallowed the immunity claim with respect to two of the documents and allowed it with respect to one of the documents. He allowed the immunity claim with respect to portions of the remaining 17 documents. The Canadian Human Rights Commission ("Commission"), supported by PSAC, has appealed that decision, seeking full disclosure of all of the documents.
[3] Counsel representing the Commission and PSAC consented to the GNWT's putting into the record documents that they had not seen: the material in dispute and a confidential affidavit by Mr. Voytilla, a very senior official of the GNWT, explaining the nature of the individual documents and spelling out the bases of the public interest immunity claim made for them. This affidavit is much more detailed and specific than his affidavits in the public part of the record.
[4] Counsel for the appellant focussed his argument on the following passage in the Motions Judge's reasons, where he said (supra, at paragraph 24):
The public interest in information generally concerning collective bargaining or job classification systems, unless it be perceived as dealing with specifics of current or upcoming bargaining or as admissions against interest at stake before the Tribunal, cannot outweigh in the balance the importance of open and fair proceedings in dealing with PSAC's complaint before the Tribunal, that is, in the administration of justice through the Tribunal's process. (Emphasis added)
[5] Counsel submitted that this passage reveals that the Motions Judge committed two errors of law. First, contrary to the assertion by the Motions Judge, the fact that a document contains an admission against interest is not a basis upon which a claim for public interest immunity can be based. On the contrary, such a document should be disclosed, except for the most pressing reasons.
[6] I agree with the submissions made by counsel on behalf of the Commission and PSAC that the Motions Judge appears to have erred in concluding that a document could be the subject of a public interest immunity claim merely because it contained an admission against interest: Carey, supra, at page 649; Leeds v. Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 682, at 689 (Alta. Q.B.). Nonetheless, this error was not material, since an examination of the disputed documents indicates that none constituted an admission against interest. I would only add that a document containing an admission against interest may be inadmissible because, for other reasons, it falls within the scope of public interest immunity, or some evidential privilege.
[7] The second argument advanced by counsel was that a government's interest in preserving its bargaining position with its employees is not in law capable of supporting a claim for public interest immunity. When a government is acting in its capacity as an employer, it is entitled to no more protection than a private sector employer for the confidentiality of its bargaining strategy.
[8] In my view, however, for the purpose of public interest immunity, the categories of public interest that may be damaged by the disclosure of documents are not closed. I am not prepared to say that a government can never establish a public interest immunity claim by invoking the possibility that the public interest will be harmed by the disclosure of its future negotiating strategy with its employees, or of the position that it proposes to adopt on certain issues in upcoming negotiations.
[9] As counsel pointed out, the GNWT has an obligation to provide services to the public, and, in view of its limited financial resources and small population, and the substantial size of the amounts that may be the subject of bargaining with its employees as a result of the pay equity claim, the disclosure of material that could undermine the GNWT's ability to bargain effectively might have serious repercussions for residents of the NWT. Although the evidential basis of the claim that disclosure would jeopardise the GNWT's position in future negotiations was not strong, there is evidence in the confidential material on which the Motions Judge's conclusion can be supported.
[10] Once it is accepted that the protection of the GNWT's bargaining strategy is in law capable of supporting a claim for public interest immunity, then it is matter for the Motions Judge's discretion whether the harm that may be caused by disclosure outweighs the damage to the due administration of justice before the Tribunal if the material in dispute is not disclosed.
[11] The Motions Judge correctly identified the factors adumbrated in Carey v. Ontario, [1986] 2 S.C.R. 637, at 670-71, that a judge must consider in weighing these competing heads of public interest. Further, when the reasons of the Motions Judge and the record, including the confidential parts of it, are read in their entirety, I am not satisfied that he committed any error that would warrant the intervention of this Court. I would only add that the disputed material appears to have only a marginal relevance to the merits of the pay equity claim.
[12] For these reasons, I would dismiss the appeal with costs.
"John M. Evans"
J.A.
"I agree
Marshall Rothstein"
"I agree
K. Sharlow"
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