Docket: A-425-16
Citation: 2017 FCA 35
Present: STRATAS
J.A.
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BETWEEN:
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ELIZABETH
BERNARD
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Applicant
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and
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PUBLIC SERVICE
ALLIANCE OF CANADA and TREASURY BOARD
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
The applicant has applied for judicial review of
a decision of the Public Service Labour Relations and Employment Board. The
applicant filed a request for disclosure of documents from the Board under Rule
317 of the Federal Courts Rules, SOR/98-106. Under Rule 318, the Board
has objected to disclosing certain documents. It says the documents are covered
by legal professional privilege.
[2]
By direction, another judge of this Court asked
for submissions on whether disclosure of these documents is necessary to allow
the applicant to file an affidavit in support of her judicial review. The
parties have provided their submissions. The Court thanks the parties.
[3]
Both the applicant and the Attorney General of
Canada (representing the Board) correctly state that if the documents are
covered by legal professional privilege, the applicant cannot see them. It is
apparent from the parties’ submissions, particularly those of the applicant,
that the real dispute is whether the documents in fact are privileged.
[4]
The Board has only asserted that the documents
are privileged. It says that “the Applicant has not
provided any plausible or cogent basis to doubt the veracity or legitimacy of
the Board’s claim to privilege based on the description provided by Board
Counsel.” In effect, the Board is telling the applicant she should just
trust counsel’s description.
[5]
In response, the applicant suggests that this
insufficient. She basically asks, “Where’s the evidence
that supports the assertion of legal professional privilege?”
[6]
The applicant’s question is salient and
well-founded in law. The general rule is that a court can act only on the basis
of evidence. Legal professional privilege may be a very important matter and “must remain as close to absolute as possible” (see Lavallee,
Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3
S.C.R. 209), but this does not relieve litigants of the need to prove its
existence in a particular case.
[7]
In Canada v. Kabul Farms, 2016 FCA 143,
this Court put it this way (at para. 38):
The general rule is that this Court can only act on evidence in the
record before it unless some exception applies. Two exceptions are legislative
provisions that create factual presumptions and the doctrine of judicial notice
as discussed in authorities such as R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.
[8]
In Pfizer Canada Inc. v. Teva Canada Limited,
2016 FCA 161, 483 N.R. 275, this Court expressed this same principle (at paras.
79-80):
We start with a fundamental general
principle: facts must be proven by admissible evidence: see R. v. Schwartz, [1988] 2 S.C.R. 443 at
pp. 476-77, 55 D.L.R. (4th) 1; Canadian Copyright
Licensing Agency (Access Copyright) v. Alberta,
2015 FCA 268, 392 D.L.R. (4th) 563 at para. 20; Canada
v. Kabul Farms Inc., 2016 FCA 143 at para. 38. Put
another way, a court can act only on the basis of facts proven by admissible
evidence or evidence whose admissibility has not been contested: Kahkewistahaw First Nation v. Taypotat,
2015 SCC 30, [2015] 2 S.C.R. 548 at paras. 26-27.
There are rarely-occurring exceptions to
this. These include circumstances where facts are subject to judicial notice
(see, e.g., R. v. Spence, 2005 SCC 71, [2005] 3
S.C.R. 458), facts are deemed or presumed by legislation to exist, facts have
been found in previous proceedings in circumstances where they bind the court
(see, e.g., Danyluk v. Ainsworth Technologies Inc.,
2001 SCC 44, [2001] 2 S.C.R. 460), and facts have been stipulated or agreed to.
See also Canada (Citizenship and
Immigration) v. Ishaq, 2015 FCA 151, 474 N.R. 268 at paras. 18-23; Canadian
Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268,
[2016] 3 F.C.R. 19 at para. 20.
[9]
This sort of issue has arisen before in the
context of a Rule 318 objection: Lukács v. Canada (Transportation Agency),
2016 FCA 103, an authority also useful regarding the Court’s remedial
flexibility in dealing with the objection; see also Canadian Copyright
Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268, [2016] 3
F.C.R. 19, an authority offering general guidance on Rules 317 and 318 and how
they work procedurally in the broader context of a judicial review.
[10]
Lukács is most
relevant here. It tells us that in some cases an objection to disclosure under
Rule 318 can indeed be dealt with on the basis of an exchange of letters
containing submissions, nothing more. In such cases evidence does not need to
be filed: sometimes, for example, the parties agree on the facts relevant to
the objection and so there is no need for evidence to be filed; sometimes the
facts set out in their submissions letters concerning the Rule 318 objection
are not in dispute; sometimes, given the nature of the objection, there is no
need for a factual basis other than the Rule 317 request itself.
[11]
But Lukács also tells us that sometimes
the facts are in dispute and so evidence must be filed.
[12]
In Lukács this Court explained the
relevant principles in the following way (at paras. 8-10):
Now to objections under Rule 318(2). Where
the relevant administrative decision-maker, here the Agency, objects under Rule
318(2) to disclosing some or all of the material requested under Rule 317 and
the applicant does not dispute the objection, then the material is not
transmitted. However, if, as here, the applicant disputes the objection, either
the applicant or the administrative decision-maker may ask the Court for
directions as to how the objection should be litigated: see Rule 318(3).
In response to a request for directions, the
Court may determine that the objection cannot succeed solely on the basis of
the reasons given by the administrative decision-maker under Rule 318(2). In
that case, it may summarily dismiss the objection and require the
administrative decision-maker to transmit the material under Rule 318(1) within
a particular period of time.
In cases where the Rule 318(2) objection
might have some merit, the Court can ask for submissions from the parties on a
set schedule. But sometimes the Court will need more than submissions: in some
cases, there will be real doubt and complexity and sometimes evidence will have
to be filed by the parties to support or contest the objection. In cases like
these, the Court may require the administrative decision-maker to proceed by
way of a written motion under Rule 369. That Rule provides for motion records,
responding motion records and replies, and also the deadlines for filing those
documents. The motion records require supporting affidavits and written
representations.
[13]
In this case, the applicant does not accept that
the documents are privileged. The burden of proving the documents are
privileged lies on the Board. The say-so of the Board does not discharge that
burden.
[14]
Even if we accepted the say-so of the Board, it
does not go far enough. The Board says the documents were sent to and from its
legal services branch. That’s fine as far as it goes. But that alone does not
establish legal professional privilege. For example, the dominant purpose of the
creation of the documents must be proven. The dominant purpose may be something
other than providing legal advice, such as the communication of general Board
business.
[15]
In this case, the Board was asked to supply
submissions, nothing more. It was not allowed to file evidence. Further, the
issue on which it was asked to file submissions was whether disclosure of the
documents is necessary for the applicant to prepare her affidavit in support of
her application for judicial review. In substance, the Board has never had an
opportunity to file evidence on the existence of the privilege. And the
applicant also has not had an opportunity to file evidence on that issue and,
if necessary, cross-examine on the evidence offered by the Board.
[16]
The solution, as counselled by Lukács, is
for the Board to bring a motion under Rule 369 for an order upholding its Rule
318 objection, i.e., its claim of legal professional privilege. The
Board is the proper party to bring the motion as it bears the burden of proving
its claim of legal professional privilege. The motion process solves the problems
identified in the preceding paragraph: it allows the parties a full opportunity
to file evidence and, if necessary, to test it.
[17]
An order will issue requiring the Board to bring
a motion if it intends to maintain its Rule 318 objection. The order will also
regulate ancillary matters. When the filings are complete, the motion may be
returned to me for determination.
[18]
Before concluding, I note that the style of
cause appears to be irregular. Under Rule 303(2), the government respondent
should be the Attorney General of Canada, not the Treasury Board. Unless the
parties persuade me to the contrary in their written representations on the
motion, I shall also amend the style of cause.
“David Stratas”
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