Date: 20061019
Docket: T-567-05
Citation: 2006 FC
1253
Ottawa, Ontario,
this 19th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SHELDON
BLANK
Applicant
and
THE
MINISTER OF THE ENVIRONMENT
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application under section 41 of the Access to Information Act,
R.S.C. 1985, c.A-1(Act) for judicial review of the refusal by the Access to
Information and Privacy Office of Environment Canada (ATIP-EC) to disclose
certain records in response to the Applicant’s request for access under section
6 of the Act (Request for Access).
BACKGROUND
[2]
The
Applicant, Mr. Sheldon Blank, made his Request for Access on September 5, 2001.
He sought the following:
All
records not provided to me, from my prior ATIP request, being your file number
A-2000-0091/lr. Also, please provide me with all new records from Garnet
Murray’s file from the date of my previous request on June 20, 2000 to present.
For
reference purposes I note that my prior ATIP request was for the “File of
Garnet Murray as identified in the accompanying memorandum,” acknowledged
received by your office on June 20, 2000.
[3]
The
Applicant’s “prior ATIP request” arose from the criminal prosecution of the
Applicant and Gateway Industries Ltd. (a Winnipeg pulp and paper company of
which the Applicant was a controlling Director) under the Fisheries Act,
R.S.C., 1985, c. F-14 and the Pulp and Paper Effluent Regulations, SOR/92-269
in July 1995 (Prosecution). The Crown ultimately abandoned the Prosecution in
February 2004, at which time the Applicant brought an action against the Crown
for alleged fraud, conspiracy, perjury and abuse of prosecutorial powers. That
action is ongoing. The Applicant seeks further access to government records for
purposes of his civil law suit.
[4]
Under
cover letter to the Applicant dated October 29, 2001, ATIP-EC enclosed a
“complete release package,” consisting of approximately 90 pages of material,
in response to the Request for Access. ATIP-EC advised the Applicant that “some
information has been withheld in accordance with section 23 of the Act,” and
that he could file a complaint with the Office of the Information Commissioner
of Canada (OIC) if he was not satisfied with ATIP-EC’s handling of the Request
for Access.
[5]
By
letter dated November 5, 2001, the Applicant wrote to OIC requesting that it
“investigate both the inappropriate withholding of documents exempted in the
October 29th release, and for neither providing nor identifying records
requested by me in this file” (Complaint).
[6]
It
appears that OIC did not initiate its investigation into the Complaint until
October 2004. OIC explained the delay as follows in its report to the Applicant
of February 15, 2005:
While
it has taken an inordinate length of time to complete this investigation –
which I regret – I can assure you that your complaint was not neglected. On the
contrary, it was precisely because we wanted to ensure that you received all
the information you are entitled to under the Act. As you are aware, over the years
you submitted numerous requests at various departments. Occasionally, the
information sought was similar and overlapped from one request to another. In
other instances, the same pages existed in more than one file.
[7]
Consultations
between ATIP-EC and the Department of Justice led to the release of additional
documents to the Applicant. Under cover letter to the Applicant dated January
31, 2005, ATIP-EC enclosed “additional information which can now be disclosed,”
and advised that “some information remains withheld in accordance with sections
14 and 23, subsection 19(1) and paragraphs 16(1)(a), 16(1)(b),
16(1)(c), 20(1)(b), 20(1)(c), 21(1)(a), 21(1)(b),
and 69(1)(g) of the Act.”
[8]
By
letter dated February 15, 2005, OIC wrote to the Applicant to report the results
of its investigation into the Complaint. OIC expressed its view that records
were properly withheld under subsection 19(1) and paragraphs 14(b),
16(1)(a), 16(1)(b), 16(1)(c), 20(1)(b), 20(1)(c),
21(1)(a) and 21(1)(b) of the Act. OIC indicated that its findings
on the applicability of section 69 of the Act would be reported separately.
[9]
OIC
concluded that the Complaint was “well-founded with respect to some portions of
the requested records” which were “not properly exempted under section 23 of
the Act.” On the basis of that conclusion, OIC requested the Applicant’s
consent to apply to this Court, pursuant to paragraph 42(1)(a) of the
Act, for a review of ATIP-EC’s refusal to release the records in question. OIC
also advised the Applicant of his right to apply to the Court independently
pursuant to section 41 of the Act.
[10]
The
Applicant opted to carry the matter forward himself, and filed the present
application in this Court on March 24, 2005.
[11]
Under
cover letter to the Applicant dated June 1, 2005, ATIP-EC enclosed “additional
information which can now be disclosed to you.”
[12]
During
the course of the hearing for the present application that took four days of
Court time, the parties refined even further the documents and information that
remain undisclosed and in dispute. The Court requested and received a modified
May 31, 2006 list of outstanding documents that the Respondent still refuses to
disclose. At the final day of the hearing the Respondent informed the Court
that the exemption claimed for document 5863 should be 21(a) and (b) of the
Act, and not the section 23 exemption referred to in the attached list.
Following the hearing, the Court’s own review of the listed documents revealed
various discrepancies and problems associated with identifying a definitive
list of documents in dispute. I have referred to those problems in Schedule “A”
to these reasons and my own conclusions as to what remains in dispute.
[13]
The
Applicant takes the view not only that the documents in this list are unlawfully
withheld, but also that the Respondent has yet to disclose a complete list of
documents encompassed by the Request for Access. There are also attachments,
enclosures, and identifying information related to the documents withheld that
the Applicant says have been exempted in their entirety and have not been
identified and /or severed in accordance with section 25 of the Act. The
Applicant also raises a variety of other arguments to nullify the exemption
claimed, all of which I have attempted to address in my reasons.
[14]
Since
the Court heard this matter in June, 2006, the Supreme Court of Canada has
released its decision in Blank v. Canada (Minister of Justice) 2006 SCC
39, [2006] S.C.J. No. 39. I have taken that decision into account and, in
particular, I have followed the guidance of the Supreme Court with regard to
the issue of litigation privilege.
ISSUE
[15]
The
principal issue in this application is whether the claimed exemptions from
disclosure are properly invoked. The Applicant also raises in a collateral way
whether ATIP-EC has fully complied with his Request for Information.
SUBMISSIONS
The Applicant
[16]
The
Applicant points out that the Respondent bears the onus of demonstrating that
the claimed exemptions from disclosure were properly invoked: see Canada
(Minister of Public Works and Government Services) v. Hi-Rise Group Inc., (2004),
318 N.R. 242, 2004 FCA 99 at paragraph 19.
[17]
The
Applicant also repeats OIC’s conclusion that the Complaint was “well-founded”
but he neglects to add that this was only with respect to only some portions of
the requested records which were not properly exempted under section 23 of the
Act.
[18]
With
reference to the long and harrowing background to this application, the
Applicant also raises a range of considerations that he says nullify reliance
upon exemptions that might otherwise apply. Those considerations include such
matters as waiver and the illegal and otherwise inappropriate actions of
various individuals and government departments involved in the Prosecution, as
well as the investigation and preparation that led to the Prosecution.
[19]
Many
of the issues and arguments raised by the Applicant are complex. Unfortunately,
the Applicant is not a lawyer and he represented himself throughout in the
application before me. This meant that some of the points he made were not
adequately supported by sufficient evidence, full argument or legal authority.
The Applicant is obviously deeply resentful and suspicious of the Prosecution
that was conducted against him and Gateway for many years and was then
abandoned. He may be entirely right in this regard, but at this stage he
appears to assume that the Court can and should merely adopt his view of the
whole saga. However, as the Applicant has already been told by the Federal
Court of Appeal, “in considering whether appropriate disclosure had (sic)
been made under the Act, the Court should consider only the Act and the
jurisprudence guiding its interpretation and application.” See Blank v. Canada (Minister of Justice), [2005] 1 F.C. 4031,
2004 FCA 287 at para. 14, aff’d 2006 SCC 39 (Blank Appeal A).
The Respondent
[20]
The
Respondent submits that the claimed exemptions under the Act were properly
invoked and that no further severance of information can reasonably be
accomplished.
[21]
The
Respondent repeats OIC’s agreement with ATIP-EC’s reliance on the exemptions
provided for in sections 14, 16, 19, 20 and 21 of the Act, and with its
reliance on section 23 with respect to the “majority of the information that
remains withheld under this section.”
[22]
The
Respondent says that it cannot be held responsible for delays that have
occurred during the course of the Applicant’s quest for information and
documents related to the Prosecution, or for the actions of other government
departments and individuals involved in the long history of this matter.
[23]
The
Respondent also says that the Applicant has produced no evidence to suggest
wrong-doing by government officials or anything else that might vitiate the
exemptions claimed for the remaining documents in dispute.
ANALYSIS
Standard of Review
[24]
As
Justice Strayer explained in Kelly v. Canada (Solicitor General) (1992),
53 F.T.R. 147, 6 Admin L.R. (2d) 54, aff’d (1993), 154 N.R. 319 (F.C.A.) a
determination to either release or refuse to release information pursuant to a
discretionary exemption in the Act involves two steps:
…first,
a factual determination as to whether the material comes within the description
of material potentially subject to being withheld from disclosure; and second,
a discretionary decision as to whether that material should nevertheless be
disclosed.
[25]
The
standards of review applicable in the case at bar were set out by the Federal
Court of Appeal in 3430901 Canada Inc. v. Canada (Minister of Industry),
[2002] 1 F.C. 421, 2001 FCA 421 at para. 47, leave to appeal to S.C.C. refused
[2001] S.C.C.A. No. 537, (per Justice Evans):
In
reviewing the refusal of a head of a government institution to disclose a
record, the Court must determine on a standard of correctness whether the
record requested falls within an exemption. However, when the Act confers on
the head of a government institution a discretion to refuse to disclose an
exempted record, the lawfulness of its exercise is reviewed on the grounds
normally available in administrative law for the review of administrative
discretion, including unreasonbleness. […]
[26]
Following
the decision in 3430901 Canada Inc., in Thurlow v. Canada (Solicitor General), 2003 FC 1414 at para.
28, Justice O’Keefe applied a pragmatic and functional analysis and concluded
that a decision as to whether a requested document falls within a statutory
exemption should be reviewed on a standard of correctness, and the
discretionary decision to refuse to disclose an exempted record should be
reviewed on a standard of reasonableness simpliciter. Justice O’Keefe’s
decision was followed by Justice Tremblay-Lamer in the recent decision Samir
Elomari v. President de L’Agence Spatiale Canadienne, 2006 CF 863 at para.
21.
[27]
With
respect to the degree of deference to which OIC’s conclusions are entitled, the
Federal Court of Appeal noted in Blank v. Canada (Minister of Justice), (2005),
344 N.R. 184, 2005 FCA 405 (Blank Appeal B) at para. 12 (per Justice Rothstein)
as follows:
It
has been held that the considered opinion of the Information Commissioner
should not be ignored by the Court (see Rubin v. Canada Mortgage and Housing
Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), at 272 per
Heald J.A.) and that the Information Commissioner has expertise not possessed
by the Court with respect to access to information (see Canada (Information
Commissioner)(Can.) v. Prime Minister (Can.), (T.D.) [1993] 1 F.C. 427; 57
F.T.R. 180 (T.D.) at 499 (T.D.)…
[28]
Justice
Evans in 3430901 Canada Inc., above at para. 42, noted that the Court should
carefully consider the Information Commissioner’s reports, but also noted as
follows:
…the
Court is entitled to differ from the Commissioner on questions of law, and of
mixed law and fact, without having first to satisfy itself that the
Commissioner’s conclusion was unreasonable: the Court is charged with reviewing
refusals by heads of government institutions, not the Commissioner’s
recommendations.
General Principles
[29]
Before
embarking upon an analysis of the specific exemptions claimed under the Act and
the objections to their applicability raised by the Applicant, there are
certain general interpretive principles that have to be kept in mind.
[30]
First
of all, the Act must be interpreted in the light of the fundamental principle
that government information should be available to the public, and that
exceptions to the public’s right of access should be “limited and specific”:
see subsection 2(1) of the Act and Canada Packers Inc. v. Canada (Minister
of Agriculture), [1989] 1 F.C. 47 at 60, 87 N.R. 81 (F.C.A.).
[31]
Secondly,
public access to government information should not be frustrated by the courts
except upon the clearest of grounds. Any doubt should be resolved in favour of
disclosure, with the burden of persuasion resting upon the party resisting
disclosure: see Maislin Industries Limited v. Minister for Industry, Trade
and Commerce, [1984] 1 F.C. 939 at 943, 10 D.L.R. (4th) 417
(F.C.T.D.).
[32]
Thirdly,
although the Act creates a right of access, that right is not absolute. It
must be examined in light of other provisions of the Act and the specific exemptions
claimed: see Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C.
707 at 712, 167 N.R. 43 (F.C.A.), aff’d, [1996] S.C.J. No. 4 (S.C.C.).
Special Matters Raised
By the Applicant
[33]
A
review of the documentation withheld in this case is complicated by special
considerations raised by the Applicant. He says that the Respondent cannot rely
upon the claimed exemption for one or more of the following reasons:
a.
Severance
The Respondent is
required to comply with its severance obligations as directed by the Federal
Court of Appeal in Blank Appeal A. This means that the Respondent must sever
and provide general identifying information such as: the description of the
document; the name, title and address of the person to whom the communication
was directed; the closing words of the communication and the signature block. Justice
Létourneau referred to the earlier Federal Court of Appeal decision in Blank
v. Canada (The Minister of the
Environment),
[2001] F.C.J. No. 1844, 2001 FCA 374 (Blank Appeal C) at para. 23. In that
decision, Justice Sharlow held this kind of information must be disclosed so
that the Applicant can know “that a communication occurred between certain
persons at a certain time on a certain subject, but no more.” (para. 66) The
Applicant says that proper severance has not occurred in this case and the
Court must now review each of the documents in dispute to ensure that it does.
The Respondent points
out that general identifying information should be severed and released except
where to do so would reveal the privileged information. See Rubin v. Canada
(Canada Mortgage and Housing
Corp.),
[1989] 1 F.C. 265 at 271, 86 N.R. 186 (F.C.A.) and Blank Appeal A, above. The
Respondent also says that severance is not reasonable where what remains of the
document is meaningless or misleading because the remaining information is
taken out of the context of the document as a whole. See Canada (Information
Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 at
558, 559, 20 F.T.R. 314 (F.C.T.D.) and Ottawa Football Club v. Canada (Minister of Fitness
and Amateur Sport),
[1989] 2 F.C. 480 at 488, 24 F.T.R. 62 (F.C.T.D.)
As regards the documents
in dispute in this case, the Respondent says that appropriate severance has
occurred and the Applicant has, in fact, received all the information he is
entitled to without revealing privileged information.
The Federal Court of
Appeal has already provided clear guidance on severance in Blank Appeal A,
above at paras. 66-67:
An earlier contention of the respondent that a
record that is subject to solicitor-client privilege is not subject to the
severance provision in section 25 has been unequivocally rejected by this Court
in Blank v. Canada (Minister of the Environment) (2001), 41 C.E.L.R.
(N.S.) 59 (F.C.A.) at paragraph 13: see also College of Physicians of
British Columbia v. British Columbia (Information and Privacy Commissioner),
[2003] 2 N.W.R. 279 (B.C.C.A.), 665, at paragraphs 65-68. The words “[n]otwithstanding
any other provision of this Act” employed in section 25 make it a paramount
section: see Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989]
1 F.C. 265 (C.A.) at page 271. Therefore, general identifying information such
as the description of the document, the name, title and address of the person
to whom the communication was directed, the closing words of the communication
and the signature block can be severed and disclosed. As this Court pointed out
in Blank at paragraph 23, this kind of information enables the requester
“to know that a communication occurred between certain persons at a certain
time on a certain subject, but no more.”
Counsel for the respondent submits that his
client has abided by these principles in this case and that the records in
question have properly been severed. The appellant’s argument appears to have
been raised for the first time before us on appeal. If it was raised before the
Motions Judge, he never dealt with it. We have no way of knowing whether
severance has been effected and, if so, whether it has been effected properly.
Therefore, I would send the matter back to the Federal Court for a review of
the records with a view to ascertaining whether the mandatory requirements of
section 25 of the Act have been complied with.
Following the decision
of the Federal Court of Appeal, Justice Mosley considered severance in Blank
v. Canada (Minister of Justice) 2005 FC 1551. Justice
Mosley at para. 33 relied on the reasons of Jerome A.C.J. in Canada
(Information Commissioner) v. Canada (Solicitor General), cited above, at
paragraphs 14 and 15, which suggest that there are two problems with surgically
separating disconnected phrases that do not contain exempt information from a
document:
First,
the resulting document may be meaningless or misleading as the information it
contains is taken totally out of context. Second, even if not technically
exempt, the remaining information may provide clues to the content of the
deleted portions. Especially when dealing with personal information, in my
opinion, it is preferable to delete an entire passage in order to protect the
privacy of the individual rather than disclosing certain non-exempt words or
phrases.
Indeed,
Parliament seems to have intended that severance of exempt and non-exempt
portions be attempted only when the result is a reasonable fulfillment of the
purposes of these statues […]
Justice Mosley concluded
at paragraph 36 as follows:
From
these cases, I would derive and apply the principle that severance within a
document under section 25 is only to be affected where it is reasonable to do
so. Reasonableness requires that the severed information be capable of standing
independently and that severance must not result in the release of meaningless
words and phrases out of context or provide clues to the content of the
exempted portions. Severance must be done bearing in mind the importance of
impairing solicitor-client privilege as little as possible.
At paragraph 39, Justice
Mosley also held as follows:
[…]
It would appear from the case law that any information, including a list of
other documents, which can reasonably be severed from the privileged
communication, should be severed under section 25 of the Act… If
solicitor-client privilege is claimed for one or more of the listed documents,
disclosure of the list should not compromise the privilege claimed in that
document.
Justice O’Keefe also
considered the issue of severance in Blank v. Canada (Minister of Justice)
2006 FC 841, and accepted the conclusions of Justice Mosley set out above.
In my view, the general
principle articulated by the jurisprudence is that any non-privileged
information contained in a privileged document should be severed and disclosed
except to the extent that such information would be so disjointed as to be
nonsensical once severed, or to the extent that the severed information would
provide clues about the privileged information.
So the obligations of
the Court on this issue are to examine each of documents in dispute to
determine whether, in fact, full and appropriate severance has been exercised
in each case in accordance with the principles set out above. That is what I
have done.
b.
Waiver
The Applicant is of the
view that the Respondent has waived its right to claim solicitor client
privilege. He says that there can be waiver by “implication,” by which he appears
to mean that waiver may occur even in the absence of any intention to waive the
privilege. This can occur, for example, if the Respondent has taken positions
which make it inconsistent to maintain the privilege. The Applicant is
self-represented and he has not explained clearly in his materials or his oral
presentation how waiver by implication may have occurred in the present case. I
have reviewed each of the examples contained in the excerpts from Sopinka,
Lederman and Bryants’ The Law of Evidence in Canada which he filed as
part of his record for this application, but I cannot connect any of the
examples given with the facts as presented in the evidence before me. I have to
conclude, therefore, that no adequate evidentiary or legal basis for waiver has
been presented by the Applicant.
c.
Litigation
Privilege
The Applicant points out
that there are two branches of solicitor and client privilege: legal advice
privilege and litigation privilege. He says that litigation privilege ends with
the litigation to which it relates.
The decision in Blank
Appeal A was appealed to the Supreme Court of Canada, which rendered its
decision on September 8, 2006 in Blank v. Canada (Minister of Justice),
2006 SCC 39 (Blank Supreme Court Appeal). The majority decision was written by
Justice Fish, who affirmed both of these principles (see paras. 4, 34).
In the present case, the
Applicant says that the litigation for which the disputed documentation was
prepared ended when the summary proceedings against the Applicant and his
company were declared a nullity by Justice Kennedy in April, 2001, or at least
in February 2004, when the Crown made its decision to stay the indictable
proceedings. The Supreme Court explored the scope of litigation privilege and
further affirmed at paragraph 34 the majority decision of the Federal Court of
Appeal that litigation privilege continues to apply to protect information from
disclosure in “related proceedings.” However, Justice Fish conclusively
determined at paragraph 43 that the Applicant’s civil proceedings do not
constitute related proceedings, but rather are separate and distinct from the
criminal prosecution. For that reason, any litigation privilege attaching to
the documents from the criminal prosecution expired when the criminal
prosecution ended.
The Respondent’s
position is that the Federal Court of Appeal confirmed in Blank Appeal A,
above, that the section 23 exemption applies to both legal advice privilege and
litigation privilege, which, as stated above, was affirmed by the Supreme Court
in the Blank Supreme Court Appeal at paragraph 4. The Respondent argues that
the documents for which it claims the s. 23 exemption clearly either deal with
advice provided by legal officers of the Crown or fall within the definition of
litigation privilege accepted by the Court of Appeal. Given the decision of the
Supreme Court in the Blank Supreme Court Appeal, this latter argument no longer
needs to be considered. I have followed the Supreme Court of Canada decision on
the issue of litigation privilege.
d.
Piercing
the Veil
The Applicant argues
that solicitor-client privilege cannot be invoked for the purpose of assisting
a person in the furtherance of a crime, and alleges that the Respondent either
has committed, or intended to commit, actions that are criminal in nature.
The Applicant cites Solasky
v. Canada, [1980] 1 S.C.R. 821 at 835 - 836, 105 D.L.R. (3d) 745 for the
proposition that “if a client seeks guidance from a lawyer in order to
facilitate the commission of a crime or fraud, the communication will not be
privileged and it is immaterial whether the lawyer is an unwitting dupe or
knowing participant.” The rationale for this position is that a “communication
in furtherance of a criminal purpose does not occur ‘in the ordinary scope of
professional employ’”. See R. v. Cox and Railton (1884), 14 Q.B.D. 153
at 167.
On the present facts,
the Applicant says that the Court must ask itself whether there is “something
to give colour to the charge” in accordance with the approach taken in K-West
Estates Ltd. v. Limemayr, [1984] 4 W.W.R. 375, 54 B.C.L.R. 60, (B.C.S.C.).
The Respondent agrees
that solicitor/client privilege cannot protect communications that are
themselves criminal or are made with a view to obtaining legal advice to
facilitate the commission of a crime. The Respondent, however, also points out
that the suggestion of criminal or fraudulent activity is a serious allegation
and requires an evidentiary foundation.
The Applicant has raised
two concerns with respect to the Crown’s conduct during the criminal
prosecution. First, that the Crown unlawfully prosecuted the Applicant and his
company. Second, the Crown failed to provide proper disclosure during the
criminal proceedings. The Applicant has not further clarified these
allegations, or presented convincing arguments on the issue of whether the
Respondent’s conduct was of a criminal nature.
During the Prosecution,
the Applicant brought a motion for certiorari and prohibition. The Court
decided that motion was premature on the basis that the Crown asserted that it
was in a position to produce a minister’s certificate; the Crown later
acknowledged that a minister’s certificate would not be available. The motion
was ultimately re-heard, and the Court determined that the entire proceeding
was a nullity, and that ministerial awareness was a judicial pre-requisite.
In separate proceedings,
the Applicant has brought an action against the Crown alleging fraud,
conspiracy, perjury and abuse of prosecutorial powers.
On the present facts,
the Respondent says the Applicant has failed to establish any evidentiary basis
for criminal or fraudulent conduct on the part of the various government
officers involved. He has merely made allegations. In Blank Appeal A, the
Federal Court of Appeal had the following to say about the criminal allegations
made by the Applicant at that time at paras. 63 - 64:
The Motions Judge reviewed the material
before him and concluded that there was on these records no evidence of the
criminal activity alleged by Mr. Blank against the Government of Canada
officials and counsel acting on their behalf, i.e. obstruction, perjury,
extortion, conspiracy, fraud or trespass. In other proceedings before the
Manitoba Courts, the Manitoba Queen’s Bench found no evidence of the
alleged fraud: see R. v. Gateway Industries Ltd., [2003] 2 W.W.R. 671,
at paragraph 32.
No serious evidentiary basis has been
provided to us in support of the allegations of fraud and criminal activity on
the part of the Government of Canada or its officials or lawyers. Therefore,
there was for the Motions Judge, and there is for us, no need to review the
documents subject to the privilege. However, since the Motions Judge has
reviewed them and made a conclusion which is under attack, we have reviewed the
records and we are satisfied that he has reached the right conclusion.
Likewise, the Applicant
in this application has not provided the Court with any evidentiary basis for
the criminal allegations he makes. The Court understands that he feels
aggrieved by the Prosecution that was eventually abandoned after so many years
and that he harbours deep suspicions about certain aspects of the investigation
and prosecution process.
To the extent that this
argument relates to the failure of the Respondent to provide adequate
disclosure during the criminal proceedings, I note that the right to adequate
disclosure is protected by section 7 of the Canadian Charter of Rights and
Freedom, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982, (U.K.), 1982, c. 11 (Charter) in criminal
proceedings based on a defendant’s right to make a full answer and defence.
Inadequate disclosure may be improper, and may be a breach of a defendant’s
Charter rights, but is not specifically criminal conduct. I would also refer
the Applicant to the comments of Justice Sharlow in Blank v. Canada (Minister of the
Environment)
(2001), 281 N.R. 388, 2001 FCA 374 at paragraphs 11 and 12:
The disclosure right recognized in Stinchcombe
is critically important to persons facing a criminal trial, but it is a right
that must be administered by courts having jurisdiction in criminal
proceedings. To try to apply the Stinchcombe rules in the context of
proceedings under the Access to Information Act would be to invite the
Information Commissioner, and ultimately this Court, to try to anticipate
decisions that ought to be made, or to review decisions that have already been
made, by a criminal court. In this case, for example, a Manitoba trial judge has already ruled on certain motions relating
to Stinchcombe disclosures.
I conclude that in determining whether
the appropriate disclosures have been made under the Access to Information
Act, the Court should consider only the Act and the jurisprudence guiding
its interpretation and application. Laws requiring disclosure in other legal
proceedings cannot narrow or broaden the scope of disclosure required by the Access
to Information Act.
I
have followed the guidance of Justice Sharlow in the present application.
e.
Mr.
Murray’s Position
As well as saying that
the documents in dispute should have been disclosed by the Respondent in
accordance with R. v. Stinchcombe, [1991] 3 S.C.R. 326, 130 N.R. 277 as
part of the Prosecution against the Applicant and his company, the Applicant
raises an additional argument to avoid the consequences of Justice Sharlow’s
reasons referred to above. The Applicant takes particular issue with the
conduct of Mr. Garnet Murray of Environment Canada who guided the investigation
and gathered evidence to be used in the Prosecution. The Applicant points to
various matters handled by Mr. Murray (ministerial awareness, lack of
disclosure, dishonesty in dealing with the Applicant, illegally obtaining a
search warrant) that he alleges were dishonest and even criminal in nature. His
concern is that now, as part of the Applicant’s efforts to secure disclosure
under the Act, Mr. Murray is the one who is making the decisions as to what
should be disclosed from his own files, and Mr. Murray has a vested interest in
ensuring that his own conduct is not brought out into the light of day.
This is not the first
time the Applicant has raised these arguments in court proceedings. As
discussed by the Federal Court of Appeal in Blank Appeal A, at paragraph 14, when
he appeared in the Federal Court of Appeal on the refusal by the federal
information commissioner to order the release of certain documents under the
control of the Minister of the Environment (in Blank Appeal C), he was told the
following by the Court in its reasons:
Subsequently, in a case involving
the appellant, Blank v.Canada (Minister of the Environment) (2001), 41
C.E.L.R. (N.S.) 59 (F.C.A.), Sharlow J.A. rejected a contention by the
appellant that the material that should have been disclosed in his criminal
trial pursuant to the Stinchcombe principles (R. v. Stinchcombe,
[1991] 3 S.C.R. 326) should now be disclosed under the Act. She reasserted for
the Court, at paragraph 12, that in considering whether appropriate disclosure
had been made under the Act, the Court should consider only the Act and the
jurisprudence guiding its interpretation and application. “Laws requiring
disclosure in other legal proceedings cannot narrow or broaden the scope of
disclosure required by the Act.”
I do not have clear
evidence before me concerning what the Applicant did or did not receive as part
of the Prosecution process, or why disclosure in those proceedings was not
handled as part of those proceedings. The Applicant says he was kept in the
dark about what was happening during the Prosecution. However, I believe the
Federal Court of Appeal has made it clear that I should consider “only the Act
and the jurisprudence guiding its interpretation and application.” (Blank
Appeal A at para. 14, referring to Justice Sharlow’s decision in Blank Appeal
C) Likewise, as regards Mr. Murray’s conduct in disclosing the contents of his
own files, I have no evidence before me to suggest that he is dishonestly
withholding information in order to shield his own past misconduct.
f.
The
Shelley Emmerson Affidavit
With respect to the
affidavit of Shelley Emmerson sworn on June 2, 2005 (the Emmerson Affidavit),
the Applicant asserts that it is inconsistent for the Respondent to maintain
privilege in relation to documents that were not the subject of the Request for
Access.
The Respondent brought a
motion in writing on June 14, 2005 for an order allowing it to file the
Emmerson Affidavit confidentially. There were three types of document appended
to, or discussed within, the Emmerson Affidavit: communications between the
Information Commissioner and the Respondent relating to the Information
Commissioner’s investigation; documents that the Applicant is seeking access to,
which the Respondent claims are subject to solicitor-client privilege; and
other records which the Applicant is seeking. The Applicant’s argument appears
to relate to the first type of document: communications between the Information
Commissioner and the Respondent relating to the Information Commissioner’s
investigation.
The Respondent sought to
protect these documents on the basis that section 35 of the Act mandates that
every investigation by the Information Commissioner be conducted in private.
The Respondent also relies on section 47 of the Act. The Applicant consented,
albeit reluctantly, to the Respondent’s motion on the condition that the judge
hearing the present application would be able to decide whether the information
contained in the Emmerson Affidavit should continue to be confidential. The
Applicant also noted that at that time a decision from the Federal Court of
Appeal was pending in Blank Appeal B, above, which might have some bearing on
the situation.
Subsequent to the
decision of Prothonotary Tabib on the Respondent’s motion, the decision of the
Federal Court of Appeal in Blank Appeal B was released. This dealt with
applications brought by the Applicant under section 41; the Applicant was
seeking disclosure of those portions of the Respondent’s affidavits that were
not specifically the subject matter of the section 41 applications, including
documents relating to the Information Commissioner’s investigation.
Justice Rothstein,
writing for the Court, held that section 35 of the Act imposes an obligation of
confidentiality on the Information Commissioner, but does not prevent the
government from making its exchanges with the Information Commissioner public
should it choose to do so. Noting the public interest in open court
proceedings, Justice Rothstein held that the Minister may file material
pertaining to the investigation by the Information Commissioner, but that
section 35 will not entitle him to have that evidence treated as confidential.
If the Minister wishes to have that evidence treated as confidential, section
47 and rules 151 and 152 will apply. (paras. 14-17)
Subsection 47(1) of the
Act provides as follows:
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47. (1) In any proceedings before the Court
arising from an application under section 41, 42 or 44, the Court shall take
every reasonable precaution, including, when appropriate, receiving
representations ex parte and conducting hearings in camera, to
avoid the disclosure by the Court or any person of
(a) any
information or other material on the basis of which the head of a government
institution would be authorized to refuse to disclose a part of a record
requested under this Act; or
(b) any information as to whether a record exists
where the head of a government institution, in refusing to disclose the
record under this Act, does not indicate whether it exists.
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47. (1) À l’occasion des procédures relatives aux recours prévus aux
articles 41, 42 et 44, la Cour prend toutes les précautions possibles,
notamment, si c’est indiqué, par la tenue d’audiences à huis clos et
l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient
divulgués de par son propre fait ou celui de quiconque :
a) des renseignements qui, par leur
nature, justifient, en vertu de la présente loi, un refus de communication
totale ou partielle d’un document;
b) des renseignements faisant état de
l’existence d’un document que le responsable d’une institution fédérale a
refusé de communiquer sans indiquer s’il existait ou non.
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Rule 151 provides as
follows:
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151(1) On
motion, the Court may order that material to be filed shall be treated as
confidential.
(2)
Before making an order under subsection (1), the court must be satisfied that
the material should be treated as confidential, notwithstanding the public
interest in open and accessible court proceedings.
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151(1)
La Cour peut, sur requête, ordonner que des documents ou éléments matériels
qui seront déposés soient considérés comme confidentiels.
(2)
Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit
être convaincue de la nécessité de considérer les documents ou éléments
matériels comme confidentiels, étant donné l'intérêt du public à la publicité
des débats judiciaires.
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Rule 152 sets out
requirements for the filing of confidential material.
Justice Rothstein in
Blank Appeal B at paragraph 18 stated that section 47
[…] is intended to protect against
unintended disclosure until the Court makes a substantive ruling on the
question of confidentiality. As such, the section must apply not only to the
record that is the subject of the section 41 or 42 application but to other
material or information which, if disclosed in the course of proceedings, would
disclose some or all of the contents of the record itself.
It appears, therefore,
that the only material in the communications between the Information Commissioner
and the Respondent which should be treated as confidential is that material
which would disclose some or all of the contents of documents whose
confidentiality is the subject of the present application.
As Justice Rothstein
noted, an order for disclosure of this material at the time of the hearing will
be too late to be useful to an applicant in pursuing his case; such an order
should be made by the motions judge. It is clearly too late for the Applicant
to benefit from disclosure of the communications between the Information
Commissioner and the Respondent in his pursuit of the present application.
Based on the application of subsection 47(1) and rule 151, however, those
portions of the Emmerson Affidavit that do not disclose material that is the subject
of the present application should not have been made confidential. In my view,
then, that material should now be released to the Applicant.
g.
Conclusions
on General Objections
My conclusions on the
special points raised by the Applicant in this application to defeat the
exemptions relied upon by the Respondent are, generally speaking, that the
Applicant has not provided the Court with a sufficient evidentiary basis that
would nullify any of the exemptions claimed. The Applicant’s deep sense of grievance
and his suspicions, although understandable after all he has been through,
cannot merely be adopted by the Court to justify setting the exemptions aside.
The principal role of the Court in this application is to review the disputed
documentation against the applicable exemption to make sure that the conditions
for the exemption claimed exist, and to ensure that severance has been effected
properly in accordance with section 25 of the Act. That is what I have
attempted to do.
The Exemptions from
Disclosure Claimed under the Act
[34]
As
can be seen from the attached Schedule of contested documents, the principle
exemption invoked by the Respondent is solicitor/client privilege under section
23 of the Act. There is also a handful of documents that raise the exemptions
available under sections 16(1)(b), 19, 20(1)(b), 21(1)(a)
and 21(1)(b) of the Act.
[35]
OIC
was of the view that all exemptions had been appropriately used (section 69 was
not addressed) except for certain portions of the requested records that were
not properly exempted under section 23. OIC provided its own list of the
inappropriately exempted portions under section 23.
(i)
Subsection 16(1)(b) - Law Enforcement and Investigations
[36]
Paragraph
16(1)(b) provides a discretionary exemption from disclosure of records
containing information relating to investigative techniques or plans for
specific lawful investigations and reads as follows:
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(b)
information relating to investigative techniques or plans for specific lawful
investigations;
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b)
contenant des renseignements relatifs à des techniques d'enquêtes ou à des
projets d'enquêtes licites déterminées;
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[37]
Based
on my review of the contested documents, and bearing in mind the discretionary
nature of the subsection 16(1)(b), as well as OIC’s assessment, I conclude
that this exemption was applied correctly to all documents to which it relates.
(ii)
Section 19 - Personal Information
[38]
Subsection
19(1) provides for the mandatory exemption from disclosure of records
containing “personal information” / « renseignements personnels » as defined in
section 3 of the Privacy Act, R.S.C. 1985, c. P-21 (Privacy Act).
[39]
Subsection
3 of the Privacy Act defines personal information under subsection (i) as information
about an identifiable individual which, where it appears with other personal
information relating to the individual, or where the disclosure of the name
itself would reveal information about the individual, subject to listed
exceptions for purposes of section 19 of the Act.
[40]
Notwithstanding
the above, subsection 19(2) of the Act provides for the discretionary
disclosure of records that contain personal information, in circumstances
where:
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(a) the
individual to whom it relates consents to the disclosure;
(b) the
information is publicly available; or
(c) the disclosure
is in accordance with section 8 of the [Privacy Act.]
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a)
l'individu qu'ils concernent y consent;
b)
le public y a accès;
c)
la communication est conforme à l'article 8 de la
[Loi
sur la protection des renseignements personnels.]
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[41]
Section
8, paragraph 8(2)(m) of the Privacy Act independently provides for the
discretionary disclosure of records containing personal information.
[42]
In Dagg
v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, 213 N.R. 161, Justice La Forest stated (with the
approval of the majority of the Court) at paragraph 68 as follows:
[…]
I will now consider whether the information requested by the appellant
constitutes personal information under s. 3 of the Privacy Act. In
its opening paragraph, the provision states that “personal information” means
“information about an identifiable individual that is recorded in any form
including, without restricting the generality of the foregoing”. On
a plain reading, this definition is undeniably expansive. Notably, it
expressly states that the list of specific examples that follows the general
definition is not intended to limit the scope of the former. As this
Court has recently held, this phraseology indicates that the general opening
words are intended to be the primary source of interpretation. The
subsequent enumeration merely identifies examples of the type of subject matter
encompassed by the general definition; see Schwartz v. Canada, [1996] 1
S.C.R. 254, at pp. 289-91. Consequently, if a government record is
captured by those opening words, it does not matter that it does not fall
within any of the specific examples.
[43]
Justice
LaForest went on to state in Dagg at paragraph 86 that, in the case
before him, “disclosure of the names themselves would reveal ‘personal’
information.”
[44]
In
the case at bar, OIC concluded that “the withheld information is personal to
others” and that “disclosure is not authorized by subsection 19(2), there being
no consent for release, no overriding public interest in disclosure, and the
information is not otherwise publicly available.” By its reference to the
absence of an “overriding public interest in disclosure,” OIC apparently
considered only subparagraph 8(2)(m)(i) of the Privacy Act in the
context of paragraph 19(2)(c) of the Act.
[45]
The
Respondent submits that the records in question are “clearly within the
definition of personal information, including instances that reveal the name(s)
of an individual(s).”
[46]
Based
on my review of the contested documents, and bearing in mind the broad
mandatory exemption provided for in subsection 19(1), the discretion to
disclose provided for in subsection 19(2), and OIC’s assessment, I conclude
that this exemption is correctly claimed in relation to all documents to which
it relates.
(iii)
Subsection 20(1)(b) - Third Party Information
[47]
Paragraph
20(1)(b) of the Act provides for the mandatory exemption from disclosure
of records containing financial, commercial, scientific or technical
information that is confidential information supplied to a government
institution by a third party and is treated consistently in a confidential
manner by the third party.
[48]
In Montana
Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989]
1 F.C. 143, at 153 – 154, 51 D.L.R. (4th) 306, Jerome A.C.J. identified
the four criteria for the application of paragraph 20(1)(b) of the Act:
(1) the records in question must contain financial, commercial, scientific or
technical information; (2) the information must be “confidential” by some
objective standard (see Maislin, above); (3) the information must be
supplied to a government institution by a third party; and (4) the information
must have been treated consistently in a confidential manner by the third
party.
[49]
Notwithstanding
the above, subsection 20(6) - like subsection 19(2) - provides for the
discretionary disclosure of records that contain information described in
paragraphs 20(1)(b):
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[…] if that
disclosure would be in the public interest as it relates to public health,
public safety or protection of the environment and, if the public interest in
disclosure clearly outweighs in importance any financial loss or gain to,
prejudice to the competitive position of or interference with contractual or
other negotiations of a third party.
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[…]
pour des raisons d’intérêt public concernant la santé et la sécurité
publiques ainsi que la protection de l’environnement; les raisons d’intérêt
public doivent de plus justifier nettement les conséquences éventuelles de la
communication pour un tiers : pertes ou profits financiers, atteintes à sa
compétitivité ou entraves aux négociations qu’il mène en vue de contrats ou à
d’autres fins.
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[50]
With
respect to the exemption claimed under paragraph 20(1)(b), OIC concluded
that the latter three criteria identified in Montana Band of Indians, above,
were satisfied. OIC did not comment on the character of the information,
however, stating only that it “qualifies for exemption.”
[51]
OIC
did not address the question of discretionary disclosure under subsection
20(6).
[52]
With
reference to paragraph 20(1)(b), the Respondent submits that “the
information disclosed in the records at issue, on its face, demonstrates its
confidential nature, such that it falls within the scope of these exemptions.”
[53]
Based
on my review of the contested documents, and, bearing in mind the mandatory
nature of the claimed exemptions, the discretion to disclose provided for in
subsection 20(6), as well as OIC’s assessment, I conclude that this exemption
is correctly claimed for all documents to which it relates.
(iv)
Subsection 21(1) - Operations of Government
[54]
Paragraph
21(1)(a) provides for the discretionary exemption from disclosure of
records containing advice or recommendations developed by or for a government
institution or a minister of the Crown.
[55]
In
relation to this provision, in 3430901 Canada Inc., above, the Federal
Court of Appeal stated at paragraph 51 (per Justice Evans) as follows:
[…]
the exemption [contained in paragraph 21(1)(a)] must be interpreted in
light of its purposes, namely, removing impediments to the free and frank flow
of communications within government departments, and ensuring that the
decision-making process is not subject to the kind of intense outside scrutiny
that would undermine the ability of government to discharge its essential
functions: Canadian Council of Christian Charities, supra, at
paragraphs 30-32.
[56]
The
following additional guidance is provided at paragraph 52:
On
the basis of these considerations, I would include within the word “advice”, an
expression of opinion on policy-related matters, but exclude information of a
largely factual nature, even though the verb “advise” is sometimes used in
ordinary speech in respect of a communication that is neither normative, nor in
the nature of an opinion. […]
[57]
Paragraph
21(1)(b) provides for a discretionary exemption from disclosure of
records containing an account of consultations or deliberations involving
officers or employees of a government institution, a minister of the Crown or
the staff of a minister of the Crown.
[58]
In Canadian
Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245, 168
F.T.R. 49 (F.C.T.D.), Justice Evans provided the following guidance at
paragraph 39:
It
is difficult to avoid the conclusion that the combined effect of paragraphs
21(1)(a) and (b) is to exempt from disclosure under the Act a
very wide range of documents generated in the internal policy processes of a
government institution. Documents containing information of a factual or
statistical nature, or providing an explanation of the background to a current
policy or legislative provision, may not fall within these broad terms.
However, most internal documents that analyse a problem, starting with an
initial identification of a problem, then canvassing a range of solutions, and
ending with specific recommendations for change, are likely to be caught within
paragraph (a) or (b) of subsection 21(1).
[59]
In
respect of the exemption claimed under subsection 21(1)(a), OIC
concluded that the material in question “constitutes […] advice or
recommendations developed by or for a government institution” and that “EC
officials have properly exercised the discretion contained in this paragraph.”
OIC concluded that the discretion contained in paragraph 21(1)(b) was
also “properly exercised,” as the records exempted under that provision
constitute “an account of consultations or deliberations involving officers or
employees of a government institution.”
[60]
The
Respondent submits that the contested documents are “well within the
definitions set out [in paragraphs 21(1)(a) and (b)] in that they
show advice being provide [sic] or received as well as an account of
deliberations.” The Respondent adds that the documents in dispute “quite
naturally” are “often overlapped by the solicitor client privilege exemption.”
[61]
Based
on my review of the documents in dispute, and bearing in mind the discretionary
nature of the exemptions as well as OIC’s assessment, I conclude that the section
21(1) exemption is correctly applied to the documents to which it relates other
than in relation to 5863 which, in my view, is not the kind of internal
deliberation or policy and opinion that the cases suggest is caught by this
exemption.
(v)
Section 23 - Solicitor-Client Privilege and Litigation Privilege
[62]
Section
23 provides for the discretionary exemption from disclosure of records
containing information that is subject to solicitor-client privilege.
[63]
As
stated by the Supreme Court of Canada in Pritchard v. Ontario (Human Rights
Commission),
[2004] 1 S.C.R. 809, 2004 SCC 31 at paragraph 17 (per Justice Major),
solicitor-client privilege is “jealously guarded and should only be set aside
in the most unusual circumstances, such as a genuine risk of wrongful
conviction.” The Supreme Court went on to note at paragraph 19 of Pritchard
that the privilege “has been held to arise when in-house government lawyers
provide legal advice to their client, a government agency: see R. v.
Campbell, [1999] 1 S.C.R. 565 at para. 49.”
[64]
In
addition, as noted above, the Supreme Court in the Blank Supreme Court Appeal, at
paragraph 4, has held that solicitor-client privilege in section 23 of the Act
includes both the legal advice privilege and the litigation privilege.
[65]
Legal
advice privilege is of indefinite duration: see R. v. McClure, [2001] 1
S.C.R. 445, 2001 SCC 14 at paragraph 36-37.
[66]
In the
Blank Supreme Court Appeal, however, and as I have already discussed, the
Supreme Court held at paragraph 34 that litigation privilege is limited in time
to the duration of the proceedings that gave rise to the privilege, absent the
existence of related proceedings. Justice Fish determined that the civil
proceedings instituted by the Applicant do not constitute related proceedings
(paragraph 43). As a result, it is my view that no litigation privilege applies
to the documents withheld by the Respondent in this application.
[67]
As
regards solicitor-client privilege, I note that section 23 was the only
exemption in respect of which OIC described the Complaint as “well-founded.”
Although OIC concluded that “the majority of the information that remains
withheld under this section […] qualifies for exemption,” it found that
“portions of the requested records are not properly exempted under section 23
of the Act.” In particular, OIC concluded that “section 25 of the Act was not
properly applied to sever and disclose” portions of records claimed to be
exempt under section 23.
[68]
Section
25 provides as follows:
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Notwithstanding
any other provision of this Act, where a request is made to a government
institution for access to a record that the head of the institution is
authorized to refuse to disclose under this Act by reason of information or
other material contained in the record, the head of the institution shall
disclose any part of the record that does not contain, and can reasonably be
severed from any part that contains, any such information or material.
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Le
responsable d’une institution fédérale, dans les cas où il pourrait, vu la
nature des renseignements contenus dans le document demandé, s’autoriser de
la présente loi pour refuser la communication du document, est cependant
tenu, nonobstant les autres dispositions de la présente loi, d’en communiquer
les parties dépourvues des renseignements en cause, à condition que le
prélèvement de ces parties ne pose pas de problèmes sérieux.
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[69]
OIC
advised the Applicant in its report on the Complaint that it had recommended
that ATIP-EC disclose “the general identifying information” pertaining to
certain records exempted under section 23. OIC also advised that ATIP-EC
“agreed to follow some but not all” of OIC’s recommendations, resulting in some
additional disclosure to the Applicant on January 31, 2005.
[70]
The
Respondent submits that “the application of s. 23 is justified in each case.”
[71]
In
respect of section 25, the Respondent indicates in Exhibit 30 to its Affidavit
materials where a document claimed to be exempt from disclosure under section
23 has been “disclosed in part,” Exhibit 30 also provides some “general
identifying information” pertaining to the contested record, albeit very little
in some cases.
[72]
The
Respondent submits that severance is not reasonable where what remains would be
meaningless or misleading as a result of being taken out of context of the
document as a whole: see Canada (Information Commissioner) v. Canada
(Solicitor General), [1988] 3 F.C. 551 at 558, 20 F.T.R. 314. With respect
to the documentation in question, the Respondent submits that “the Applicant
has received all information that he is entitled to without revealing
privileged information.”
[73]
Based
on my review of the contested documents, and bearing in mind the discretionary
nature of the section 23 exemption, the requirement of severance in section 25,
as well as OIC’s negative assessment regarding “portions of the requested
records,” and the majority decision on the duration of litigation privilege by
the Supreme Court of Canada in Blank Supreme Court Appeal, above, I conclude as
follows:
a)
As regards
those documents for which solicitor/client advice privilege is claimed, I have
concluded that the exemption has been properly applied except in relation to
those documents or portions of documents set out in the order to these reasons,
which should now be disclosed.
b)
As regards
those documents for which litigation privilege alone is claimed, I have
concluded that, in light of the Supreme Court of Canada decision in Blank
Supreme Court Appeal, above, that those documents should now be released to the
Applicant if this has not already occurred.
ORDER
THIS COURT ORDERS that
1.
Those
portions of the Emmerson Affidavit that do not disclose material that is the
subject of the present application should be released to the Applicant;
2.
Those
documents for which section 23 litigation privilege alone was claimed should be
released to the Applicant;
3.
Those
documents for which an exemption other than section 23 solicitor/client
privilege was claimed need not be disclosed to the Applicant except for 5863
which should be disclosed to the Applicant;
4.
All
documents which, during the course of this Application, the Respondent has
indicated can be released to the Applicant should be released to him to the
extent that this has not already occurred;
5.
Those
documents for which section 23 solicitor/client advice privilege was claimed
need not be disclosed to the Applicant except for those documents or portions
of documents referred to in Schedule B to these reasons, which documents or
portions should now be disclosed to the Applicant.
6.
The
parties are at liberty to address the Court on the issue of costs.
“James
Russell”
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