Date: 20000406
Dockets: A-761-99
A-762-99
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
MALONE J.A.
A-761-99
BETWEEN:
THE MINISTER OF ENVIRONMENT CANADA
Appellant
AND:
THE INFORMATION COMMISSIONER OF CANADA
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
A-762-99
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
AND:
THE MINISTER OF THE ENVIRONMENT
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
Heard at Ottawa, Ontario, Thursday, April 6, 2000
Judgment delivered from the Bench at Ottawa, Ontario, Thursday, April 6, 2000
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20000406
Dockets: A-761-99
A-762-99
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
MALONE J.A.
A-761-99
BETWEEN:
THE MINISTER OF ENVIRONMENT CANADA
Appellant
AND:
THE INFORMATION COMMISSIONER OF CANADA
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
A-762-99
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
AND:
THE MINISTER OF THE ENVIRONMENT
Respondent
- and -
ETHYL CANADA INC.
Added Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Thursday, April 6, 2000)
LÉTOURNEAU J.A.
Proceedings in files A-761-99 and A-762-99 involved appeals by the Minister of the Environment (Minister) and the Information Commissioner of Canada (Commissioner). By order of Rothstein J.A., dated January 19, 2000, the two appeals were consolidated. Subsequently, the Commissioner abandoned his appeal in file A-762-99. The appeal by the Minister in file A-761-99 is from the following conclusions of a motions judge:
| a) that subsection 36(2) and section 46 of the Access to Information Act, R.S.C. 1985, c. A-1 (Act) allow the Commissioner to file on the Court record, for possible use as evidence, documents that are protected by solicitor-client privilege where these documents were not the subject of an applicant"s request under the Act; |
| b) that the issue of solicitor-client privilege and the admissibility of these documents should be left to the judge hearing the review application on its merits; and |
| c) that counsel for the respondent, Ethyl Canada Inc. (Ethyl), be given access to the solicitor-client communications on an undertaking of confidentiality. |
Subsection 36(2) and section 46 read:
36. (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.
36. (2) Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, le Commissaire à l"information a, pour les enquêtes qu"il mène en vertu de la présente loi, accès à tous les documents qui relèvent d"une institution fédérale et auxquels la présente loi s"applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé.
46. Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Court may, in the course of any proceedings before the Court arising from an application under section 41, 42 or 44, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.
46. Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, la Cour a, pour les recours prévus aux articles 41, 42 et 44, accès à tous les documents qui relèvent d"une institution fédérale et auxquels la présente loi s"applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé.
FACTS AND PROCEDURE
The Initial Request for Information
In 1995, the Government introduced Bill C-94, the Manganese-based Fuel Additives Act, which was adopted by Parliament on 19 May 19971.
In 1997 a request was made to the Minister on behalf of Ethyl for access to Cabinet "discussion papers" relating to decisions made in respect of a gasoline additive, Methylcyclopentadienyl Manganese Tricarbonyl (MMT). The request was stated as being made for:
| Discussion Papers, the purpose of which is to present background explanations, analyses of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen"s Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT).2 |
The Minister denied the request for two reasons. First, "discussion papers" are no longer used by Cabinet: in other words, the requested documents do not exist3. Secondly, to the extent that documents of other kinds exist on the topic of MMT, such documents are exempt from disclosure on the basis of section 69 of the Act, which states that the Act does not apply to confidences of the Queen"s Privy Council for Canada (Cabinet)4.
The Information Commissioner"s Investigation
Ethyl filed a complaint, which the Commissioner investigated. The Commissioner requested and obtained from the Privy Council Office copies of documents not covered by the request. These documents were not discussion papers, but were documents concerning the use of discussion papers within the Cabinet paper system. Some of the documents the Commissioner obtained are said by the Minister to be protected by solicitor-client privilege5.
In his decision, the motions judge clarified the relation between these documents and those sought by Ethyl and the Commissioner, at first by means of a request to the Minister and then by means of judicial review of the Minister"s refusal:
| These documents are not the documents sought to be accessed by the Information Commissioner in his application under section 42 of the Access to Information Act. The documents in issue on this motion are those already obtained by the Information Commissioner during the course of his investigation which he now seeks to file with the Court in support of his application.6 |
The present appeal is in relation to these same documents already obtained by the Commissioner.
The Application for Review
The Commissioner applied under paragraph 42(1)(a) of the Act for judicial review of the refusal by the Minister to disclose the Cabinet discussion papers requested by Ethyl7. The Commissioner indicated that he intended to support his application by placing before the Court all documents obtained during his investigation, including those protected by solicitor-client privilege8.
The Motion for the Return or to Prevent Filing of Documents
The Minister brought a motion for an order directing the Commissioner to return to him a document that was mistakenly disclosed to the Commissioner during the course of the investigation. Alternatively, the Minister requested an order prohibiting the filing of that document into the public record. The Minister also sought an order to prevent the Commissioner from filing and using, before the reviewing Court, documents protected by solicitor-client privilege9. Finally, the Minister requested that all documents obtained by the Commissioner in the course of his investigation of the complaint by Ethyl be treated as confidential and that an order be issued accordingly. Before the motions judge, the Commissioner agreed that some portion of the documents may be privileged and, consequently, did not object to having the documents filed in confidence in accordance with rules 151 and 152 of the Federal Court Rules, 1998, SOR/98-106.
Analysis of the motions judge"s decision
Assuming that the motions judge found that the Commissioner may, as a matter of principle, file before the Court, in the review proceedings that he has initiated, the documents that he has obtained in the course of his investigation and for which the appellant claims a solicitor-client privilege, we see no reason to interfere with his finding10.
If these documents had been requested from the Government by Ethyl and the appellant had claimed a solicitor-client exemption from disclosure pursuant to section 23 of the Act, the material would have been filed before the Federal Court for a review, pursuant to sections 41 or 42 of the Act, of the Minister"s refusal to disclose. The reviewing Court must examine the material in which solicitor-client privilege is claimed to see if the privilege was properly invoked. Indeed, section 46 expressly states that "notwithstanding any other Act of Parliament or any privilege under the law of evidence , the Court may... examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Court on any ground" (emphasis added). The Act clearly gives the Court authority to interfere with solicitor-client confidentiality. This is consistent with one of the purposes of the Act stated in subsection 2(1), namely "that decisions on the disclosure of government information should be reviewed independently of government"11. In short, solicitor-client information is admissible as evidence for the reviewing judge to consider confidentially for the purposes of deciding whether the section 23 exemption has been properly invoked. The power granted by section 46 of the Act to Courts to "examine" privileged records goes beyond a mere inspecting power: it includes the ability for the Courts to use privileged communications as evidence to decide the merits of the exemption claimed and the legality of the refusal to disclose.
That being so, we fail to see how, in the present circumstances, the documents obtained by the Commissioner in the course of his investigation could not be filed with the reviewing judge in the judicial review proceedings.
Indeed, the Minister refused to disclose the Discussion Papers on the ground that such documents did not exist and gave to Ethyl notice to that effect pursuant to paragraph 10(1)(a) of the Act. Under paragraph 42(1)(a) of the Act, the Commissioner may apply for judicial review of "any refusal" to disclose a record requested under the Act. Thus, the Court has jurisdiction to review a refusal to disclose based on the allegation of non-existence of documents. However, where documents are alleged by the head of an institution not to exist, the reviewing Court obviously cannot resort to its ordinary method of reviewing a refusal decision. Unlike the situation where an exemption from disclosure is claimed, it cannot review the withheld documents to establish whether these documents truly fall within the exempt category. In such a case, we believe it is proper for the applicant or the Commissioner to proceed to file ancillary documents that are relevant to the existence of the requested documents and that can assist the Court in its independent review function of the government"s refusal to disclose. In our view, Parliament cannot have intended that the Court would have the relevant evidence to exercise its supervisory function only in the case of refusals based on statutory exemptions, but not in the case of refusals based on non-existence. We are comforted in this view by paragraph 63(1)(b ) of the Act which allows the Commissioner to disclose information that is necessary to a review, sought under the Act, of a refusal to disclose. Paragraph 63(1)(b) reads:
63. (1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information
[...]
(b) in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom.
63. (1) Le Commissaire à l"information peut divulguer, ou autoriser les personnes agissant en son nom ou sous son autorité à divulguer, les renseignements:
[...]
b) dont la divulgation est nécessaire, soit dans le cadre des procédures intentées pour infraction à la présente loi ou pour une infraction à l"article 131 du Code criminel (parjure) se rapportant à une déclaration faite en vertu de la présente loi, soit lors d"un recours en révision prévu par la présente loi devant la Cour ou lors de l"appel de la décision rendue par celle-ci.
The disclosure can be by way of filing the information before the reviewing judge.
As we have already mentioned, Parliament expressly stated as a key objective of the Act the need for an independent review of government disclosure decisions. This explains the clear and broad permission given to Courts in section 46 of the Act to look at any record, even one that is privileged, in applications for judicial review. Indeed, section 46 is a clear statement of intent to strip a wide variety of privileged records of their ordinary protection from use in Court. Where documents that are ancillary to an access request are the only kind of relevant evidence available in a judicial review of a refusal based on non-existence of records, there is no doubt that these documents, if they are not privileged, are admissible if they relate to the issue of existence of the requested documents. The fact that they could be privileged makes no difference since the obstacle of privilege is eliminated by the clear wording of section 46.
We believe that the documents obtained by the Commissioner, if they relate to the use of "discussion papers" within Cabinet as alleged, are in principle admissible in the review proceedings. They should be admitted if the reviewing judge is satisfied that they can be of assistance in determining the merits and legality of the government"s refusal to disclose based on the claim that, since 1984, Cabinet no longer used or maintained "discussion papers".
With respect to the appellant"s second ground of appeal, we are of the view that the motions judge properly exercised his discretion when he referred to the reviewing judge the issue of the admissibility of the documents held by the Commissioner.
Like him, we are preoccupied by the inherent delay resulting from the use of interlocutory proceedings in a judicial review process designed to be expeditious and summary12. This case is a good and vivid example of the very problem that ought to be avoided. The motions judge"s decision was rendered on November 15, 1999 and, almost five months later, the review on the merits has still not taken place.
There is another reason why interlocutory proceedings dealing with the admissibility of evidence ought to be discouraged in this type of proceedings. The decision of the reviewing judge on the issue of admissibility or on the merits of the application for review may prove to be satisfactory to the parties, thereby evidencing either the lack of merit of the objection made or the unnecessariness of a prior interlocutory challenge13.
This brings us to the appellant"s last ground of appeal, which is that the Act does not abrogate solicitor-client privilege in documents that are not the subject of the access request and, therefore, that it does not allow their disclosure to the requesting party. What the Act authorizes, the appellant submits, is an examination by the Commissioner and the reviewing Court.
This Court in Hunter v. Canada (Consumer and Corporate Affairs)14 has recognized that, in appropriate circumstances, counsel for a requesting party should be given conditional access to confidential information or enough relevant information to enable him to argue the application, subject to variance in specific circumstances. Décary J.A. mentioned as possible examples of instances where access could be denied: frivolous and extravagant requests amounting to endless fishing expeditions, matters dealing with international affairs, and defence and subversive activities15. This approach was reiterated in a passing off and trade-mark infringement action by a unanimous Court in Molson Breweries v. Labatt Brewing Co.16. A confidential order had been issued by the motions judge and Labatt challenged the order. With respect to access, the Court stated:
| [T]he normal way of reconciling the conflicting demands of openness and confidentiality, where required with respect to documents, is to disclose to parties" counsel any confidential information, on their undertaking that they will maintain that confidentiality even from their clients. |
However, the factual situation is quite different in the present instance. The motions judge"s order goes beyond granting counsel for Ethyl access to confidential information. It includes granting access to documents to which a solicitor-client privilege attaches. As Linden J.A. said in Stevens v. Canada (Prime Minister)17, the protection given to the solicitor-client privilege is very strong, as long as the person claiming the privilege is within the framework of a solicitor-client relationship. The solicitor-client privilege is not a claim as broad as a claim for confidentiality, but, in our view, it deserves greater and better protection. When discussing the broad question of solicitor-client privilege, the motions judge, quoting from Lamer J. in Descôteaux v. Mierzwinski18, stated as a rule that this privilege should only be interfered with to the extent absolutely necessary to achieve the ends of the Act.
Applying this principle to the case at bar, we do not see, however, how granting to counsel for Ethyl access to solicitor-client privileged information is absolutely necessary in the circumstances. The reviewing judge will see the privileged documents. In addition, the Commissioner has already seen the documents. He is the moving party in the review proceedings and he ably represents the interest in the disclosure of the requested documents. This is not a case, as Décary J.A. said in Hunter19, where it is necessary to allow counsel access to confidential material to avoid the unfairness of forcing the court to make important decisions "having heard one side of the argument only".
For these reasons, the appeal will be allowed in part. In view of the fact that the documents that are the subject of the confidentiality order are exclusively documents for which a solicitor-client privilege is invoked, paragraph 8 of the motions judge"s order, dated November 15, 1999 will be deleted subject to the reviewing judge"s power, on such conditions and undertakings as he sees fit, to grant counsel for Ethyl access to the material that is found not to be so privileged. There will be no order as to costs.
"Gilles Létourneau"
J.A.
__________________
1 Appeal Book, Vol. 2, at p. 2.
2 Ibid.
3 Ibid., Tab 7. This position is further explained in a letter from the Privy Council Office to the Commissioner: ibid., Tab 13.
4 Ibid., Tab 7.
5 AB, Vol. I, at p. 56. The documents in question are described and listed in Exhibit "D" of Katharine MacCormick's affidavit. See at p. 73ff.
6 Ibid., at p. 24.
7 Notice of Application, ibid., at pp. 46-48.
8 Sluzar Affidavit, AB, Vol. 2, Tab 11.
9 Notice of Motion, AB, Vol. 1, at p. 52, para. (b).
10 There is a disagreement among the parties as to whether the motions judge made this kind of finding or simply referred the whole matter to the reviewing judge for adjudication. Paragraph 64 of the motions judge"s decision, which concludes a fundamental review of the scope of application of sections 36 and 46 of the Act, reads: "As such, I am of the opinion that the privilege asserted in this case cannot operate so as to prevent the Information Commissioner from introducing them into the record". It is not unreasonable to conclude that he found that the solicitor-client privilege was no obstacle to the filing of documents, but that he left it to the reviewing judge to determine whether the very documents in issue in this case should be admitted as evidence before him. At paragraph 69 of his decision, he wrote: "The question of solicitor-client privilege and admissibility of such documents is a question of evidence which should be left to the judge hearing the application on its merits.
11 Subsection 2(1) in its entirety reads:
12 Section 45 of the Act declares that section 42 applications "shall be heard and determined in a summary way".
13 Szczecka v. Canada (Min. of Employment & Immigration), (1993), 170 N.R. 58 (F.C.A.).
14 [1991] 3 F.C. 186 (F.C.A.).
15 Id., at p. 211.
16 [1992] 3 F.C. 78, at p. 84 (F.C.A.).
17 [1998] 4 F.C. 89, at p. 105.
18 [1982] 1 R.C.S. 860, at p. 875.
19 [1991] 3 F.C. 186, at p. 203.
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