Date: 20010119
Docket: T-1096-95
BETWEEN:
ANDERSEN CONSULTING
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
HUGESSEN J.:
[1] This motion brought by the plaintiff seeks an order for the return or destruction of a very large number of documents which were copied by the plaintiff and turned over to the defendant as part of the discovery process in an action between the parties in this Court. The action was settled before trial on the payment of an undisclosed sum of money, which included a sum for costs, by the defendant. The documents in question were never produced in evidence and never became part of the public record.
[2] Following settlement of the action, the solicitors for the two parties entered into correspondence regarding the documents. Lawyers for the Department of Justice asked for the return of the documents which they had produced to the plaintiff and sought the latter's instructions regarding the plaintiff's documents. Shortly thereafter, however, Justice apparently had a change of heart and informed plaintiff's solicitors that it could neither destroy nor return the documents, as plaintiff had requested, but were obliged by law to retain them and in due course turn them over to the archives under the terms of the National Archives of Canada Act, R.S., 1985, c. 1 (3rd Supp.)
[3] Following a number of efforts to resolve the matter amicably and in a manner consistent with plaintiff's view that the documents contained a great deal of sensitive commercial information which should not be made available to its competitors, (or even to the Crown itself, with whom the plaintiff is engaged in other litigation) this Court made an interim conservatory order placing the documents under the Court's protection pending the bringing and disposition of this motion.
[4] It is common ground that the documents in question were given to the lawyers for the Crown under the terms of the so called "implied undertaking" under which all information obtained in the process of discovery in a civil action in this Court is only to be used by the party to whom it is given for the purposes of the action and is not to be disclosed or otherwise made use of unless and until it is produced in evidence and becomes part of the public record. A much-quoted statement, approved by the Ontario Court of Appeal in Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.), at pp. 363-4, is as follows:
| Where a party has obtained information by means of a court compelled production of documents or discovery, which information could not otherwise have been obtained by legitimate means independent of the litigation process, the receiving party impliedly undertakes to the court that the private information so obtained will not be used, vis-à-vis the producing party, for a purpose outside the scope of the litigation for which disclosure was made, absent consent of the producing party or with leave of the court; any failure to comply with the undertaking shall be a contempt of court. |
| This rule shall remain in effect unless and until the private information is revealed in open court. |
[5] The Court also briefly addressed the rationale of the principle in the following words (at p. 367):
| [T]he principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the court. The necessary corollary is that this intrusion should not be allowed for any purposes other than that of securing justice in the proceeding in which the discovery takes place. |
[6] The undertaking is not a mere matter of contract but is imposed by the Court itself on a litigant who takes advantage of the discovery process. Since the undertaking is given to the Court, it may be enforced by the Court through the use of the contempt power. As a matter of practice, at least in my experience in this Court, it usually includes an obligation on the part of the receiving party to return or destroy the documents (those which have not become part of the public record) at the conclusion of the litigation.
[7] Clearly, other things being equal, the Crown would be obliged to return or destroy the copies of which it has obtained possession in this matter.
[8] But, says Mr. Lester for the Crown, other things are not equal. The Crown's solicitors, as members of the Department of Justice, a "government institution", are subject to an overriding statutory obligation imposed by the terms of the National Archives Act and particularly sections 2 and 5 thereof as follows :
"2. In this Act [...]
"record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof.
5. (1) No record under the control of a government institution and no ministerial record, whether or not it is surplus property of a government institution, shall be destroyed or disposed of without the consent of the Archivist."
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2. Les définitions qui suivent s'appliquent à la présente loi. (...)
« documents » Tous éléments d'information, quels que soient leur forme et leur support, notamment correspondance, note, livre, plan, carte, dessin, diagramme, illustration ou graphique, photographie, film, microforme, enregistrement sonore, magnétoscopique ou informatisé, ou toute reproduction de ces éléments d'information.
5. (1) L'élimination ou l'aliénation des documents des institutions fédérales et des documents ministériels, qu'il s'agisse ou non de biens de surplus, est subordonnée à l'autorisation de l'archiviste.
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[9] Since, in the event the documents were turned over to the archives they would be in the control of the latter and arguably no longer subject to the constraints accepted by the Crown's lawyers, the provisions of the Access to Information Act, R.S.C. 1985, c. A-1, are also relevant. The most pertinent sections read:
| 3. 'record' includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microfilm, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or,
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
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3. « document » Tous éléments d'information, quels que soient leur forme et leur support, notamment correspondance, note, livre, plan, carte, dessin, diagramme, illustration ou graphique, photographie, film, microformule, enregistrement sonore, magnétoscopique ou informatisé, ou toute
reproduction de ces éléments d'information.
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande:
a) les citoyens canadiens;
b) les résidents permanents au sens de la Loi sur l'immigration.
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[10] This appears to be the first time that a question of this sort has arisen. In the past, when litigation has been settled or otherwise concluded, parties have routinely returned or destroyed all documents obtained on discovery which have not been used in evidence. This has been the case as much for the Crown as for private litigants and the initial position taken by the Department of Justice in this case appears in conformity with past practice. The emergence of the National Archives Act as a barrier to conforming to such practice is new, although the legislation itself has been on the books for many years.1
[11] It is also disturbing that the Department of Justice has apparently chosen to wait until this time to raise its alleged obligations under the National Archives Act. If, as Mr. Lester contends, those obligations operate to prevent Justice lawyers from returning or destroying documents obtained in the discovery process, it seems to me that they had a clear obligation to make that fact known at the beginning of the process and not to wait until they had had the advantage of the intrusive elements of document discovery before maintaining that they could not deliver on the quid pro quo. I shall return to this matter later.
[12] I also note that the obligations imposed by the implied undertaking are in many respects very similar to those contained in the express undertaking required in the analagous situation where solicitors are allowed to inspect material produced in confidence in accordance with the provisions of Rules 151 and 152. If materials so obtained by Justice lawyers are subject to the constraints of the National Archives Act, then those lawyers would equally not be able to respect their undertakings in regard to them either, with consequences which might prove very unpleasant indeed for them.
[13] The defendant argues, however, that the statutory obligation is clear : the applicable section of the National Archives Act uses the same word "control" and is cast in similar terms to the equivalent section in the Access to Information Act.
[14] While there appears to be virtually no jurisprudence under the National Archives Act, the cases under the Access to Information Act have taken a generous view of the sense to be given to the concept of control. In particular, it has been held that an obligation of confidentiality imposed by the originator of the document (Tucker v. Canada , [1986] S.C.J. No. 196, (T.D.), by the governmental recipient (Canada Information Commissioner v. Canada (Immigration and Refugee Board), [1997] F.C.J. No. 1812 (T.D.), or by a party entering into contractual relations with the government (Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110 (C.A.), do not operate to remove such documents from being in the "control" of a government department within the meaning of that statute.
[15] In my view, and despite the similarity of the statutory language, the cases under the Access to Information Act are not governing. The two statutes are not in pari materia. Their objectives are different, the one being to provide for access by the public to the workings of an open and accountable government and the other being to ensure that a historical record of government operations is preserved.
| Access to Information Act
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
National Archives Act
4. (1) The objects and functions of the National Archives of Canada are to conserve private and public records of national significance and facilitate access thereto, to be the permanent repository of records of government institutions and of ministerial records, to facilitate the management of records of government institutions and of ministerial records, and to encourage archival activities and the archival community.
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| Loi sur l'accès à l'information
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
Loi sur les archives nationales du Canada
4. (1) Les Archives nationales du Canada conservent les documents privés et publics d'importance nationale et en favorisent l'accès. Elles sont le dépositaire permanent des documents des institutions fédérales et des documents ministériels. Elles facilitent la gestion des documents des institutions fédérales et des documents ministériels et appuient les milieux des archives.
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[16] It is a fair inference that Parliament's interest in creating the public archive was primarily in ensuring that the archives should contain those documents relating to the actual operations of government as such rather than to government in its incidental role as plaintiff or defendant in civil litigation.
[17] More important, the cases under the Access to Information Act do not deal with a situation where the law itself imposes a condition upon the government institution which receives a document. This is critical. Documents received by Justice in the discovery process are not subject to a merely voluntary condition. Lawyers for the Crown do not have the option of refusing to give the implied undertaking : by accepting the documents they are bound towards the Court to deal with them only in the way permitted by the undertaking. That condition is imposed upon the solicitors and upon the department and the government they serve prior to the documents ever coming into their possession. Furthermore, the undertaking extends not only to the documents themselves but, much more significantly, to all information obtained as a result of the discovery process, e.g. through answers to oral questions. The Court in extracting the undertaking is concerned not so much with the documents as pieces of paper but rather, and significantly, with the information they may contain. That information is to remain private unless and until it comes out in open Court. While the point does not arise for decision herein, I seriously doubt that it could be called "government information". It is not in the government's control because the latter's possession of it is constrained and restricted by law.
[18] But Mr. Lester has another string to his bow : in a little noted case, which as far as counsel have been able to discover, has been neither noted nor followed, Harman J. held, in Brue Ltd. v. Solly (1988), Times, 9 February 1988 (Ch. D.), that a third party whose private diary was in the hands of the defendant who had produced a copy of it on discovery, was not entitled to have that copy either destroyed or returned to him after the case was over. Harmon J. placed his decision upon two grounds : first, that the ownership in the chattel, or piece of paper upon which the copy was reproduced, was in the defendant who had made the copy, and second, that the defendant was a "gentleman" who was not likely to breach the undertaking of which he was well aware.
[19] The second point makes the case of Brue readily distinguishable from the situation here since the whole burden of the argument put forward by Mr. Lester is that the Department of Justice, notwithstanding its awareness of the implied undertaking, proposes to breach it and to turn the documents in question over to the archives. There is thus a real threat that the confidentiality of the information obtained on discovery will be lost. It is also by no means clear that the defendant here has any property rights in the documents : the copies were made by the plaintiff and certainly belonged at one time to it. Mr. Lester argues that I should infer from the fact that the settlement payment included a sum for costs that property in the documents thereupon passed to the Crown. I can draw no such inference; on the contrary, it seems to me to be far more likely that it was an implied term of the settlement agreement that the documents would be destroyed or returned in accordance with the wishes of the party who had produced them in the first place, a course which was originally proposed by the Crown's lawyers themselves.
[20] But, with respect, it is my view that the authority of Brue is very dubious on other grounds. To rely on the ownership of the chattel, the piece of paper, as defeating the far more fundamental right to the privacy of the information contained therein, seems to me to place an inordinate value on the right of property in an object with virtually no inherent value and to wholly overlook the modern concept of privacy as a right which the law should both foster and protect. Balancing those two rights, property and privacy, against one another in the context of the present case, I have no difficulty in concluding that the latter must prevail and that the plaintiff is entitled to the order which it seeks for the return or destruction of the documents.2
[21] I would add that I have not overlooked the fact that in the event that the documents were turned over to the archives and a subsequent request for access under the Access to Information Act were made, the plaintiff might be able successfully to oppose the application under the terms of that statute. That does not seem to me to be an answer; the present litigation is over and the plaintiff should not have to anticipate that for years to come it may have to continue to defend its privacy rights at its own expense simply because it was unwise enough to sue the government and to achieve a successful settlement. The case would be even more striking for a defendant who had successfully resisted an action brought by the Crown if the documents which he had disclosed on discovery were viewed as having fallen under the "control" of the Department of Justice and being subject in consequence to demands under the Access to Information Act.
[22] I conclude accordingly that the documents here in question were not and are not under the control of the Department of Justice and continue to be subject to the terms of the undertaking. They must be returned.
[23] On the question of costs, I have previously adverted to the conduct of the Crown's lawyers. I consider it to be wholly unconscionable that they should have acted as they did. Even if, as I suspect to be the case, the idea of the National Archives Act as trumping their obligations under the implied undertaking only came to them after the case was settled, that cannot excuse their taking a position which is wholly incompatible with their obligations previously undertaken to the Court and the plaintiff. They have forced the plaintiff to fight a long and unnecessary battle, and one which is no doubt costly. Even if they had been right in their view of the law, I would have ordered that the plaintiff should recover the costs of this motion. In my opinion, the plaintiff should be compensated for their legal costs associated with this matter in their entirety. Thus, costs to the plaintiff are to be assessed on a solicitor and client basis.
ORDER
All documents obtained by the defendant on discovery and not forming part of the public record are to be returned to the plaintiff within ten (10) days of this Order. The plaintiff shall have its costs of this motion to be assessed on a solicitor and client basis.
Judge
Ottawa, Ontario
January 19, 2001
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1 The National Archives of Canada Act , S.C. 1987, c. N-1, replaced the Public Archives Act, dating back to 1912 (S.C. 1912, c. 4).
2 See R. v. Stewart , [1988] 1 S.C.R. 963, at par. 28, where the Supreme Court alluded to the necessity of balancing the parties' interests in determining the type of protection to be afforded by the Courts.
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