Date: 20030930
Docket: A-679-02
Citation: 2003 FCA 361
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA representing the
Minister designated under the
Cultural Property Export and Import Act
Appellant
(Respondent)
and
JOAN A. WILLIAMSON
Respondent
(Applicant)
Heard at Edmonton, Alberta, on Tuesday, September 30, 2003.
Judgment delivered from the Bench at Edmonton, Alberta, on Tuesday, September 30, 2003.
REASONS FOR JUDGMENT: SEXTON J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
Date: 20030930
Docket: A-679-02
Citation: 2003 FCA 361
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA representing the
Minister designated under the
Cultural Property Export and Import Act
Appellant
(Respondent)
and
JOAN A. WILLIAMSON
Respondent
(Applicant)
REASONS FOR JUDGMENT
(Delivered from the Bench at Edmonton, Alberta, on September 30, 2003.)
SEXTON J.A.
[1] The Attorney General of Canada appeals from the Order of the Federal Court ordering production of a document upon which the Attorney General of Canada claims solicitor-client privilege.
[2] The Respondent donated property to the Fort Saskatchewan Historical Society which in turn applied for Designation pursuant to the Cultural Property and Import Act. Such designation, if obtained, could have produced certain favourable tax consequences for the Respondent.
[3] The request for designation was refused.
[4] The Respondent filed an application for judicial review of that decision which application contained a request for certified documents which were before the decision maker.
[5] The Appellant refused to produce one document, on the basis of solicitor-client privilege.
[6] The Prothonotary gave the following direction on September 9, 2002:
"1. The Tribunal shall have ten (10) days from the date of this direction, to serve and file supplementary objections by reference to the specific items sought by the applicant.
2. The applicant shall have twenty (20) days from service of the Tribunal's further objections to serve and file a response to the objections.
3. The Tribunal shall have ten (10) days from service of the response to serve and file a reply, if any.
4. Either party may request or the Court may direct that the matter be heard."
[7] The September 9, 2002, Order was amended on October 3, 2002 to read as follows:
(a) The applicant shall have until no later than October 22, 2002, to serve and file a response to the objections.
(b) The Attorney General shall have ten (10) days from service of the response to serve and file a reply, if any.
(c) The applicant will set the matter down for hearing, at General Sitting, following receipt of the reply or the date on which the reply is due.
(d) The Attorney General has leave to file copies of the documents for which privilege is claimed under seal, for the purposes of the hearing judge or prothonotary.
(e) If not filed with the Attorney General's further objections, the privileged documents shall, in any case, be filed no later than ten (10) days prior to the hearing date.
[8] In accordance with the Direction, the document for which solicitor-client privilege is claimed was filed in a sealed envelope with the Court.
[9] No affidavit evidence was filed by the Attorney General of Canada to support the assertion that the document is subject to solicitor-client privilege. The Attorney General of Canada did file the document itself in a sealed envelope, and the letter of objection dated September 18, 2002.
[10] The Motions Judge said in the Reasons:
"The Respondent submitted no evidentiary foundation to support the assertion that the challenged document is subject to solicitor-client privilege. The document was produced to the Court in a sealed envelope. I have reviewed the document and, in the absence of an affidavit from the Respondent setting forth the relevant facts and circumstances relating to the document, I am unable to conclude that the document reflects legal advice as opposed to a legal argument, as alleged by the Applicant. The affidavit of Ms. Romans fails to show otherwise."
[11] The law is clear that the burden of establishing solicitor-client privilege lies with the person who seeks to invoke the privilege.
[12] The Attorney General of Canada argues that the document for which privilege is claimed is obviously privileged on its face.
[13] The Court, having examined the document, is of the view that it may well be privileged but we are unable to conclude that Madam Justice Heneghan made a palpable and overriding error in concluding there was insufficient evidence to establish this. What is arguably lacking is evidence from the Appellant that it was seeking legal advice and that such advice was obtained as evidenced by the particular document in question, and that it was at all times contemplated by the Appellant that the advice obtained would be confidential. In particular, there was lacking evidence of a solicitor-client relationship between the decision maker and the author of the document in question.
[14] The Appellant, however, alleges that the direction issued by the Prothonotary dated September 9, 2002, did not contemplate the filing of affidavit evidence and for this reason none was filed.
[15] While it might be argued that the Appellant should have filed an affidavit containing the required information, in spite of the Direction, we are of the view, because of the importance of the principle of solicitor-client privilege, that the Appellant should not be deprived of the opportunity to do so now.
[16] The Appellant requested, as alternate relief on the appeal, that it be given the opportunity, and we agree it should be provided in the circumstances.
[17] The Respondent argued that such document would, in any event, constitute legal argument before the Minister and would therefore be produceable. This question will only be resolved once the Appellant has provided affidavit evidence.
[18] It is clear, however, that solicitor-client privilege can apply when the client is a department of government and the advising solicitors are in the employ of the Department of Justice.
Canadian Jewish Congress v. Canada (1995)
93 F.T.R. 172 (T.D.)
[19] The appeal will therefore be allowed and the matter will be returned to the Federal Court for redetermination following the filing of any affidavit evidence which the Appellant may wish to file. The Appellant shall have until October 20, 2003, to file such Affidavit.
[20] There will be no costs.
"J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-679-02
(APPEAL FROM AN ORDER OF THE FEDERAL COURT, TRIAL DIVISION DATED NOVEMBER 28, 2002, IN COURT FILE NO. T-1214-02)
STYLE OF CAUSE: AGC v. JOAN A. WILLIAMSON
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: September 30, 2003
REASONS FOR JUDGMENT OF THE COURT: ROTHSTEIN, SEXTON, SHARLOW JJ.A.
DELIVERED FROM THE BENCH BY: SEXTON, J.A.
APPEARANCES:
|
Tracy King
|
FOR THE APPELLANT
|
|
Priscilla Kennedy
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, ON
|
FOR THE APPELLANT
|
|
Parlee McLaws, Edmonton, AB
|
FOR THE RESPONDENT
|
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