Date: 20100217
Docket: A-384-09
Citation: 2010 FCA
47
Present: TRUDEL J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
RUDY
QUADRINI
Respondent
Dealt with in
writing without appearance
of parties
Order delivered at Ottawa, Ontario,
on February 17, 2010.
REASONS
FOR ORDER BY: TRUDEL
J.A.
Date: 20100217
Docket: A-384-09
Citation: 2010 FCA 47
Present: TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
RUDY QUADRINI
Respondent
REASONS FOR ORDER
TRUDEL J.A.
Background
[1]
These are
two motions brought on behalf of the applicant, the Attorney General of Canada
for:
(a) an Order staying and
suspending the effect of the order contained in paragraph 106 of a decision
made by the Public Service Labour Relations Board (PSLRB) on 28 August 2009; and
(b) an Order striking out portions
of the respondent’s affidavit filed under Rule 307, along with an Order
striking out portions of the respondent’s written examination in Form 99A.
[2]
The
parties are engaged in a proceeding in front of the PSLRB regarding a complaint
made by the respondent under section 190 of the Public Service Labour
Relations Act, S.C. 2003, c. 22, s.2 (the Act).
[3]
During the
course of the proceeding, the employer asserted solicitor-client privilege and
objected to the disclosure of some pages of a document that the respondent
sought to obtain. The missing pages were part of a document that the
respondent had received as the result of an access-to-information request and
had been removed by the Canada Revenue Agency’s Access to Information and
Privacy Directorate pursuant to sections 26 and 27 of the Privacy Act,
R.S.C. 1985, c. P-21.
[4]
Having
considered the employer’s objection, the Board member delivered a 30-page
decision whereby he ordered as follows:
[104] The
respondents’ objection that the Board has no authority to satisfy itself as to
the validity of a claim of solicitor-client privilege is dismissed.
[105] The
Registry of the Board will consult with the parties on appropriate dates to
reconvene the hearing.
[106] No
later than 10 days before the hearing, the respondents will provide to the
Board, and copy to the complainant, an affidavit sworn by their solicitor that
clearly establishes the nature of the contents of pages 000007 to 000011 of
Exhibit C-40 and the reasons they are subject to solicitor-client privilege.
[107] The
parties should be prepared to continue with all remaining phases of the hearing
when the hearing reconvenes.
[5]
On 28
September 2009, the applicant commenced an application for judicial review of
the Board’s interim decision.
[6]
The
pending application for judicial review raises questions of law. The grounds
for application are limited to the following:
. The Board
erred in law or exceeded its jurisdiction by dismissing the Applicant’s
objection that it had no authority as to the validity of a claim of solicitor
client privilege;
. The Board
erred in law or exceeded its jurisdiction by deciding that it was the
Applicant’s responsibility to produce an affidavit by the solicitor who
authorized the communications for which privilege is denied;
[7]
In support
of its application, the applicant served and filed the supporting affidavit and
documentary material of Ms. Anne Ross. The respondent later filed his own
affidavit and an 18‑page written examination containing 112 questions and
sub-questions in respect of the affidavit of Ms. Ross. Ensued the motions under
examination.
[8]
The
affidavit of Ms. Ross limits itself to the necessary factual background that could
be of assistance to this Court in determining the above-mentioned issues,
whereby the respondent’s affidavit mainly addresses the merits of his
complaint, which are not at play at this stage of the file. I should add that
aside from the property or relevance of portions of the respondent’s affidavit
and written examination, the language used is often abusive.
[9]
As an
alternate way to dispose of the second motion, the applicant seeks permission
to withdraw Ms. Ross’ affidavit. If granted, there would be no need to rule on
the respondent’s written examination.
Analysis
A. Motion for stay
[10]
On the
merits, the only issue in this application is whether the provisions of the Act
extend the jurisdiction of the PSLRB into matters of solicitor-client
privilege, even for the limited purpose of determining whether the privilege is
properly claimed.
[11]
This
question is important as solicitor-client privilege is fundamental to the
proper functioning of our legal system. Adjudication of a claim of privilege
outside the realm of the enabling statute would be an infringement of the privilege.
[12]
Here, the
applicant argues that the purpose of the stay pending appeal is to preserve the
rights of the parties. To deny the requested stay would effectively render the
application for judicial review moot by forcing the employer to reveal
information that is the subject matter of the claim to solicitor-client
privilege. The applicant also notes that denying the stay would have a
deleterious effect on similar claims in the context of PSLRB hearings.
[13]
Moreover,
the applicant argues that preserving the status quo would serve the interests
of both parties.
[14]
The
applicant’s arguments have persuaded me that the three-stage test in RJR –
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 has been
satisfied. There is a serious question to be tried; the applicant will suffer
irreparable harm if the relief is not granted; and the balance of inconvenience
favours him.
[15]
Having
decided to grant the requested stay, I now turn my attention to the motion
regarding the respondent’s affidavit and written examination.
[16]
This file
is quite simple. The legal question at issue is limited and well defined. An
applicant for judicial review does not have to file an affidavit, especially
when the legal error asserted appears on the face of the record.
[17]
I therefore
accept the applicant’s proposal to withdraw Ms. Ross’ affidavit, hence
eliminating the need for discovery.
[18]
The
question of the respondent’s affidavit remains. As a general rule, the
affidavit must contain relevant information which would be of assistance to the
Court in determining the application. As stated by our Court in Dwyvenbode
v. Canada (Attorney General), 2009 FCA 120, the purpose of
an affidavit is to adduce facts relevant to the dispute without gloss or
explanation. The Court may strike affidavits, or portions of them, where
they are abusive or clearly irrelevant, where they contain opinion, argument or
legal conclusions, or where the Court is convinced that admissibility would be
better resolved at an early stage so as to allow the hearing to proceed in a
timely and orderly fashion (McConnell v. Canadian Human Rights Commission,
2004 FC 817, affirmed 2005 FCA 389).
[19]
Applying
these principles to a thorough examination of the respondent’s 46-paragraph
affidavit, I conclude that very large portions of it must be struck out. Copy
of the affidavit with the irrelevant and offensive portions removed is appended
to these reasons.
[20]
Finally, I
must deal with two procedural matters. Firstly the respondent has listed eleven
issues to be determined on the stay motion (see paragraph 23 of his Motion
Record). I have already considered those that were relevant and simply ignored
sub-paragraphs (d) (e) (f) (g) (h) (j) and (k) as being irrelevant.
[21]
Secondly,
I note that the respondent’s written representations included in his Motion
Record exceed 30 pages. The Registry shall inform the respondent of this
Court’s requirements to avoid in the future the possible return of his
documents.
Conclusion
Accordingly, on the motion to stay:
[22]
The motion
to stay and suspend the effect of the order contained in paragraph 106 of the
decision made by the PSLRB on 28 August 2009 will be granted until the final
disposition of the application in this Court.
On the motion to strike-out portion of
the respondent’s affidavit and written examination:
[23]
The
applicant will be authorized to withdraw the affidavit of Anne Ross and it
shall therefore be removed from the Record.
[24]
The
respondent’s Record shall be considered to have been duly served and filed;
[25]
The
respondent’s affidavit, as served and filed, shall be removed from the Record
and replaced by the one appended to these reasons.
[26]
The
respondent’s written examination shall also be removed from the Record.
[27]
Costs of
this motion to follow the event.
"Johanne
Trudel"
Court File No.: A-384-09
FEDERAL COURT OF APPEAL
BETWEEN
ATTORNEY GENERAL OF CANADA
Applicant
and
RUDY M. QUADRINI
Respondent
AFFIDAVIT OF RUDY M. QUADRINI
I, Rudy Moreno Quadrini, Ontario public servant of the town of
Aurora, in the Regional Municipality of York, in the Province of Ontario, SWEAR THAT:
1.
I am the
complainant in an unfair labour practice complaint against Mr. Larry Hillier
and the Canada Revenue Agency (“CRA”) (both “respondents”) before the Public
Service Labour Relations Board (“PSLRB”) (File: 561-34-196) initiated over 2
years ago on November 9, 2007. Hearings for this proceeding are continuous and
scheduled to resume again on February 15, 2010. There is literally no end in
sight to this federal case, which primarily involves a very
straightforward, negligent breach of contracts.
Nature of the proceeding
2.
The matter
before you is isolated to a judicial review application of the PSLRB’s
interlocutory decision, wherein, the PSLRB ordered (at p. 30 of Exhibit “A” to
the Applicant’s affidavit):
a.
the
dismissal of the respondents’ objection to the PSLRB’s authority to satisfy
itself that a document is subject to solicitor-client privilege
(hereinafter, “privilege”) in the context of a complaint filed under section
190 of the Public Service Labour Relations Act (PSLRA”), (as ruled on at
para. 95 respecting para. 2.1 of Exhibit “A” supporting the Applicant’s
affidavit);
and
b.
the
respondents to provide both the PALRB and myself with a sworn affidavit that
clearly establishes the nature of the contents of the documents for which
privilege was claimed and the reasons they are subject to privilege.
3.
Rule
301(d) required the Applicant to set out a precise statement of the relief
sought in its Notice of Application but it failed to do so. I can only presume
the Applicant seek the PSLRB’s order to be overruled or overturned. I
respectfully request that this Honourable Court sustain the order.
4.
[…]
5.
[…]
6.
[…]
7.
[…]
The Nature of the Order and
the Objection
8.
The PSLRB
has not ordered the respondents to disclose or product certain documents
in question nor effectively waived any privilege claim attached to them
as alleged by the Applicants in their affidavit. (Specifically, see para. 10-13
of Applicant’s Exhibit “A” on this point). As the respondents had proposed in
argument, and I agreed in counter-argument, the PSLRB ordered only a
descriptive and detailed affidavit of the nature and contents of these
documents from the respondents to substantiate their alleged privilege claim.
(Specifically, see para. 96-102 of Applicant’s Exhibit “A” on this point). I
also deny the PSLRB member’s suggestion (at para. 98 thereof) that my proposal
to modify the subject procedure was because he is not a lawyer. Both the PSLRB
member and the Applicants will note that it was the PSLRB member who had raised
this very issue at the last hearing when he said that a procedure might have to
be designed because I am not a lawyer. […]
The Narrow Nature of the
Underlying Proceeding and my Legal Rights
9.
[…]
10.
[…]
11.
In
contrast, the PSLRB has included in a list of its roles and responsibilities as
a quasi-judicial tribunal (at para. 89, 90 & 95 of Exhibit “A” to the
Applicant’s affidavit), ordering “…the disclosure of documents or things”,
applying “… legal principles to individual cases, observing the requirements
of due process and natural justice”, “deciding diverse points of law up
to, and including, questions that arise from constitutional and
quasi-constitutional authorities”. It also says, “It is neither legally
sound nor effective policy to hold that it cannot determine all classes of
issues concerning the disclosure of evidence that come before it, including…”
privilege.
12.
[…]
13.
[…]
14.
[…]
15.
[…]
16.
[…] So,
since October 3, 2007, I have unsuccessfully sought, both directly from the
respondents, and indirectly through various other channels, the legal basis I
thought must exist to support their position to deny me an offer they seem to
have admitted I was entitled to in the letter.
17.
[…] My
initial decision to pursue then not pursue further recourse under the Privacy
Act to challenge the exemptions is irrelevant for purposes of both the
complaint and this proceeding.
18.
[…]
19.
[…]
Quest for the Truth, Finality
and Fairness
20.
[…]
21.
[…]
22.
[…]
23.
[…]
24.
I seek the
documents in question […] to confirm or dispel any illegal acts, as are pivotal
to my case. The documents in question are also necessary to identify every
responsible party or person involved in the refusal that may be subject to
punitive prosecution under section 205 of the PSLRA; (refer to para. 65-70 and
74 of Exhibit “B” supporting the Applicant’s affidavit). Although the PSLRB has
discouraged such a prosecution, it has been held in abeyance until a finding is
made on the complaint.
25.
The
documents in question are central to this proceeding and the PSLRB complaint.
They are vital to the finality of the Settlement Agreement based upon its
terms. […]
26.
[…]
Background Information
27.
[…]
28.
[…]
29.
[…]
30.
[…]
31.
[…]
The Letter of September 13
32.
[…]
The Settlement Agreement
33.
[…]
The HRA and Collective Agreement
34.
[…]
35.
[…]
36.
[…]
37.
[…]
38.
[…]
39.
[…]
Nature of the Documents at
Issue
40.
Despite
all my legal rights and entitlements to a job offer, the CRA has refused to
give me one for no apparent legitimate reason. In law, and under principles of
natural justice, I’m entitled to know the legal basis, if any, supporting such
an action taken against me. Their refusal is unfounded, personally motivated
and detrimental to me.
41.
[…]
42.
[…]
43.
[…]
44.
[…]
45.
[…]
46.
I make
this affidavit in support of my notice of appearance on the application and for
no other or improper purpose.
Sworn before me at the City of
Toronto in the Province of Ontario on November 27, 2009.
(s)
____________________________
Commissioner for Taking Affidavits
Or as the case may be)
(s) Rochelle S. Dickenson
Registry officer
___________________________
(Signature of Deponent)
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-384-09
STYLE OF CAUSE: Attorney
General of Canada v.
Rudy Quadrini
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE
OF PARTIES
REASONS FOR ORDER BY: TRUDEL J.A.
DATED: February 17, 2010
WRITTEN REPRESENTATIONS BY:
|
Caroline Engmann
|
FOR THE APPLICANT
|
|
Rudy
Quadrini
|
ON HIS OWN BEHALF
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE APPLICANT
|
|
|
|
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