Date: 20050111
Docket: T-817-04
Citation: 2005 FC 22
Toronto, Ontario, January 11th, 2005
PRESENT: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
SHELDON BLANK
Applicant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by The Minister of Justice (the respondent in the main application), for an order allowing the filing of the confidential affidavit of Kerri Clark, sworn June 24, 2004.
[2] The applicant brought an application for judicial review of the respondent's decision to exempt certain records or portions of records, related to the applicant's request made under the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act").
[3] The Minister of Justice refused to release certain information on the basis that the information was used in the investigation by the Information Commissioner (pursuant to section 35 of the Act) and on the basis that the information need not be disclosed because of solicitor-client privilege (section 23 of the Act).
[4] Whether or not the information is exempt from disclosure will be determined on the main application made pursuant to section 41 of the Act. The purpose of this motion is to request an order allowing the confidential filing of the information, which information, will be reviewed by the Judge hearing the section 41 application. That Judge will rule on whether the information is exempt from disclosure.
[5] The Minister of Justice has stated that paragraphs 14, 19, 31, 33, 35, 36 to 38, and 40 to 42 should be kept confidential because of section 35 of the Act, which states that the investigation of a complaint under the Act shall be held in private.
[6] As well, the Minister maintains that many of the documents are exempt from disclosure because they are subject to solicitor-client privilege (section 23 of the Act). In Blank v. Canada (Minister of the Environment), [2001] F.C.J. No. 1844, Sharlow J. A., writing for the Court, stated at paragraphs 14 to 18:
14. Counsel for the appellant, in attempting to determine whether the order under appeal was based on any error that would require the intervention of this Court, was operating at a significant disadvantage. He was denied access to the documents. He had only a list of particulars provided by counsel for the Minister.
15. The appellants argue that the Minister should have been required to provide further and better particulars of the documents for which solicitor-client privilege was claimed. Having reviewed all of the documents against the revised list of particulars, I have concluded that the disclosure in the statement of particulars is sufficient, and is also accurate except with respect to one document that I will refer to below.
16. Another ground of appeal is that counsel for the appellants should be permitted to examine the material for which solicitor-client privilege has been claimed in order to determine for himself whether any argument can be made that the solicitor-client privilege does not apply. He acknowledges that he would be obliged to give appropriate undertakings to keep confidential what he may learn from examining the documents. However, the party claiming the privilege cannot be sure that counsel for the opposing party, however willing and conscientious, will be able to erase knowledge gained from the documents. As a practical matter, to permit opposing counsel to view the documents would risk destroying the privilege.
17. Claims of solicitor-client privilege are typically dealt with as they have been in this case, with the party challenging the privilege being given particulars about the documents rather than access to the documents themselves. The result is that the documents are reviewed in detail only by the Court. In the first instance, the challenging party is compelled as a matter of necessity to rely on the judge or, as in this case, commence an appeal without being able to specify what errors might have been committed. The appellate court is then forced to look over the shoulder of the judge at first instance and reach its own conclusion as to whether the privilege applies. No other procedure has been devised that can ensure a reasonable review of the solicitor-client privilege claim without destroying it. There is no reason to depart from that practice in this case.
18. Accordingly, this Court has reviewed all of the documents in issue with a view to considering anew the Minister's claims for solicitor-client privilege. For the reasons below, the claims should be upheld except with respect to record 1878.
[7] I am of the view that this procedure applies in the present case. Accordingly, I am of the belief that an order allowing the filing of the confidential affidavit of Kerry Clerk, sworn June 24, 2004 should issue. The order would be subject to any rulings made by the Judge hearing the application, which would allow the disclosure of information or documents.
[8] Sheldon Blank, the applicant, submitted that The Minister of Justice did not provide him with a list describing certain of the documents not produced. The Minister of Justice submitted that the particulars of the documents not produced are included in the public version of the confidential affidavit of Kerri Clark, sworn June 24, 2004.
[9] I have reviewed the affidavit and I am of the view that The Minister of Justice should provide to the applicant and to the Court, a list of the documents that it declines to produce as a result of s. 23 of the Act, supra (Solicitor-Client Privilege). This list should contain the information ordered by Gibson J. of this Court in Blank v. The Minister of Justice (Order dated February 26, 2001 in Court file T-2073-00).
[10] The motion is allowed permitting the respondent to file the confidential affidavit of Kerri Clark, subject to the conditions contained in paragraph 7 of these reasons.
ORDER
THIS COURT ORDERS that:
1. The respondent is permitted to file the confidential affidavit of Kerri Clark, sworn
June 24, 2004. The order is subject to any rulings made by the Judge hearing the application, which would allow the disclosure of information or documents.
2. The Minister of Justice provide to the applicant, Sheldon Blank, and to the Court by February 1, 2005, a list of the documents that it declines to produce as a result of s. 23 of the Act, supra (Solicitor-Client Privilege). This list should contain the information ordered by Gibson J. of this Court in Blank v. The Minister of Justice, supra.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-817-04
STYLE OF CAUSE: SHELDON BLANK
Applicant
and
THE MINISTER OF JUSTICE
Respondent
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: July 12, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: January 11, 2005
APPEARANCES:
Sheldon Blank,
Self-Represented FOR APPLICANT
Jessica Cogan
Kevin Staska FOR RESPONDENT
SOLICITORS OF RECORD:
Sheldon Blank, Self-Represented
Winnipeg, Manitoba FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
Date: 20050111
Docket: T-817-04
BETWEEN:
SHELDON BLANK
Applicant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR ORDER
AND ORDER
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