Date: 20010212
Docket: T-2834-96
Neutral citation: 2001 FCT 51
BETWEEN:
ATTORNEY GENERAL OF QUEBEC
Plaintiff
- and -
HER MAJESTY THE QUEEN in right of Canada
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion by the defendant opposing the privileges of non-disclosure claimed by the plaintiff.
FACTS
[2] The plaintiff brought an action by statement of claim to determine the scope of the defendant's obligations pursuant to the Canada Assistance Plan, R.S.C. 1985, c. C-1.
[3] In accordance with Rule 223 of the Federal Court Rules, 1998, the parties exchanged their respective affidavits of documents and the documents listed therein, except for those in respect of which the parties claimed a privilege of non-disclosure.
[4] The plaintiff served on the defendant three affidavits of documents, namely the affidavit of Serge Audet, the affidavit of Claude Wallot and the affidavit of Jacques Lafontaine.
[5] The defendant challenged the privileges of non-disclosure claimed by the plaintiff on 71 documents, a list of which was submitted to the Court at the hearing.
[6] The privileges claimed by the plaintiff in respect of these 71 documents were claimed as solicitor-client privilege and negotiating strategy, as negotiating strategy and/or internal analysis and as documents intended for the provincial Cabinet.
[7] A [TRANSLATION] "notice of constitutional question" was served but it was mutually agreed that it was not necessary to raise this question at the hearing.
DEFENDANT'S ARGUMENTS
[8] The defendant maintained that pursuant to Rule 227 of the Federal Court Rules, 1998 this Court has the power on motion by the parties to the case to inspect the adequacy or accuracy of an affidavit of documents and if necessary to direct that an adequate or accurate affidavit be served and filed.
[9] That argument was not disputed by the plaintiff.
[10] The defendant maintained that the substantive rules relating to determination of the merits of the plaintiff's claims of privilege should be applied pursuant to art. 308 of the Quebec Code of Civil Procedure. That was also not disputed by the plaintiff.
[11] Accordingly, in the defendant's submission, the Court must balance the opposing interests of confidentiality in governmental matters on the one hand and the proper administration of justice on the other. To do this, the Court will consider in general, but not exclusively, six factors:
[TRANSLATION]
(a) the relevance of the information and documents in question and the feasibility of filing them so that the case can be adequately and fairly argued;
(b) the decision-making level in question;
(c) the exact nature of the public interest protection of which is sought by non-disclosure;
(d) the precise content of the information and documents in question;
(e) the time that has elapsed since the documents in question or the information sought originated;
(f) the importance of the issue.
[12] The defendant maintained that the burden of establishing the validity of a claim of privilege rests on the party relying on the privilege.
[13] The defendant alleged that this burden of proof required the filing of detailed affidavits to show:
[TRANSLATION]
(i) the precise nature of the public interest likely to be affected by the disclosure of information in respect of which a privilege is claimed;
(ii) how that public interest would be affected by the disclosure of the information in question; and
(iii) how the public interest should take priority over the interests of the proper administration of justice.
[14] The defendant maintained that simply having the opinion of a Minister and that of a public servant do not suffice to meet the burden of proof imposed on the party claiming privilege.
[15] The defendant alleged that the plaintiff had not discharged his burden of proof. According to the defendant, the four affidavits filed by the plaintiff in response to the instant motion essentially contain [TRANSLATION] "standard form" opinions of their respective authors that disclosure of the documents concerned in the motion:
[TRANSLATION]
(i) would confer an unfair advantage on the defendant in the event of a settlement of the case at bar; or
(ii) would probably adversely affect the conduct of federal-provincial relations;
(iii) would in some cases adversely affect the principle of confidentiality of documents intended for the Cabinet.
[16] The defendant maintained that the affidavits in reply cast no light on the facts or explanations which might support the opinions given therein.
[17] Accordingly, the four affidavits in reply submitted by the plaintiff should only have a very low evidentiary value in this Court.
[18] She accordingly argued that the plaintiff had not discharged his burden of showing that disclosure of the documents would give the defendant an unfair advantage in the event that the case at bar is settled or that disclosure would be likely to adversely affect the conduct of federal-provincial relations.
[19] The defendant also added that suggesting that a document falls within the class of Cabinet documents is not as such sufficient to justify denying its release for purposes of litigation.
[20] According to the defendant, the plaintiff, in order to justify its claim of privilege for the documents intended for the Quebec Cabinet, must show as a matter of fact:
(i) the precise nature of the public interest likely to be affected by the disclosure;
(ii) how that public interest would be affected by the disclosure; and
(iii) how the public interest should take priority over the interests of the proper administration of justice.
PLAINTIFF'S ARGUMENTS
[21] The plaintiff maintained that the following portions of the affidavits in reply of Jacques Lafontaine, Serge Audet, Claude Wallot and Pierre Roy set out the specific reasons supporting the claim of the privilege of non-disclosure in respect of the documents or part of documents mentioned by the defendant:
(i) [TRANSLATION] "disclosure would give the federal government an unfair advantage if the case at bar is settled. It would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government;
(ii) the documents should [TRANSLATION] "be covered by the privilege of confidentiality as documents intended for members of the Cabinet of the Government of Quebec";
(iii) the documents include [TRANSLATION] "legal opinions and discussions of legal opinions, which should benefit from the privilege of confidentiality as professional secrets between a solicitor and his client".
[22] The plaintiff maintained that the nature and the scope of the immunity of the Crown in right of Quebec, guaranteed by s. 308 of the Quebec Code of Civil Procedure, should be interpreted in light of the common law precedents on the point.
[23] The plaintiff cited the applicable tests set out in Carey v. Ontario, [1986] 2 S.C.R. 637, and indicated that the following tests should be considered:
[TRANSLATION]
(a) the decision-making level;
(b) the nature of the policy concerned and the particular contents of the documents;
(c) the time when disclosure is requested;
(d) the interests of the administration of justice in the production of the documents (the importance of the case, the need and desirability of producing the documents to ensure that the case can be adequately and fairly presented).
[24] On the decision-making level, the plaintiff alleged that several of the documents sought are intended for the highest decision-making level of the Government of Quebec, namely the Cabinet.
[25] Although it is true that a majority of the documents sought were prepared by professionals working on the administration of the federal-provincial agreements on health and social services, that should not have the effect of diminishing the importance of the documents.
[26] As to the nature of the policy concerned and the precise contents of the documents, the plaintiff maintained that the policy affected the conduct of relations. The great majority of the documents consisted of analyses and recommendations regarding the position the Government of Quebec should adopt on federal government decisions dealing with the sharing of health and social services costs.
[27] In the plaintiff's submission, the public interest favoured preserving the confidentiality of the documents concerned by the motion, which are likely to directly affect present and future federal-provincial relations.
[28] The plaintiff further argued that in most of the cost-sharing agreements between the federal government and the governments of the provinces, the provinces have a duty to justify their claims in order to obtain reimbursement from federal funds. As the federal government does not always give reasons for refusing to reimburse the expenditures claimed, access by the defendant to the documents sought would give the latter an unfair advantage.
[29] Further, disclosure of the documents sought could endanger the principle of the duality and autonomy of the Crown and destroy the political balance that should exist in a federal system.
[30] The plaintiff argued that the conduct of federal-provincial relations was a policy of the same type as diplomatic relations, which have consistently justified confidentiality of documents associated with that kind of policy.
[31] The plaintiff argued that the documents sought by the defendant related to the judicial proceeding between them in the principal case, although that does not make them relevant.
[32] The information contained in these documents thus preserves an actual and ongoing interest because the parties are still opposed in the principal proceeding.
[33] The fact that since March 31, 1996 the agreement is no longer in effect and that certain documents were prepared in 1972 does not in any way alter the fact that the information is important.
[34] In the plaintiff's submission, disclosure of the documents would give the defendant an unfair advantage both in prosecuting the case and in the event that the parties initiate discussions
to settle the issue.
[35] Further, the documents requested by the defendant are not relevant to the evidence that should be presented by the parties to the case. The documents do not provide evidence in themselves as they are opinions.
[36] In the plaintiff's submission, it is neither necessary nor useful for the defendant to use the documents to establish the validity of its refusal to reimburse the cost of the services provided.
[37] The plaintiff explained that the fact the documents are listed in its affidavits of documents does not constitute an admission of their relevance.
[38] The plaintiff argued that the question of relevance in public interest matters should be decided by different tests from those set out in the Federal Court Rules, 1998. That decision should actually be made at a later stage, thus allowing the opposing party to be aware of the actual existence of the documents.
[39] According to the plaintiff, the affidavits in reply are quite sufficient to allow the parties to argue the points raised. Further, the affidavits in reply could hardly be more detailed, as they would then be likely to impinge on the privilege of non-disclosure.
[40] The plaintiff maintained that the defendant's argument reflected excessive and somewhat archaic formalism when it required that each of the plaintiff's documents repeat the following formula:
[TRANSLATION]
(i) the precise nature of the public interest likely to be affected by the disclosure; (ii) how that public interest would be affected by the disclosure; and (iii) how the public interest should take priority over the interests of the proper administration of justice.
[41] The plaintiff further added that it is in the very nature of an affidavit in reply to contain an opinion on the privilege of the documents and that this objection by the defendant is not valid. However, the plaintiff admitted that this opinion is not binding on this Court.
DEFENDANT'S REPLY TO PLAINTIFF'S ARGUMENTS
[42] Contrary to what was argued by the plaintiff, the defendant maintained that as the documents did not fall in the class of Cabinet documents they should not be given a confidentiality rating equivalent to what the latter are usually given.
[43] The defendant also noted that the sole purpose of the rule that Cabinet documents are confidential is to safeguard [TRANSLATION] "the confidentiality of the government's decision-making process", a rule which clearly does not apply to government documents not intended for the Cabinet, and in the plaintiff's submission these make up a [TRANSLATION] "majority" of the documents concerned in the motion.
[44] In this connection the defendant noted that only nine of the 101 documents the plaintiff wishes to cover by privilege are Cabinet documents.
[45] The defendant maintained that in the current state of the law the rules applicable to privileged information dealing with the conduct of diplomatic relations cannot in any way be likened to those governing information on the conduct of federal-provincial relations.
[46] In the defendant's submission, it is well settled that information on the conduct of federal-provincial relations does not fall into the class of information (national security, defence, diplomatic relations and Cabinet secrets) which the courts generally treat with special sensitivity when an objection is made to their release.
[47] On the question of the "time of disclosure", the defendant noted that this factor was not developed by the courts in order to protect a party to litigation from the disclosure of information that might be prejudicial to its case.
[48] The factor exists in order to protect the confidentiality of information prepared in developing a governmental project or policy which is being worked out at the time their disclosure is sought, or the content of which is of such importance at that time to the public that disclosing it would be likely to interfere with the functioning of government.
[49] According to the defendant, this factor is of no assistance to the plaintiff since the case at bar turns essentially on the administration of a federal-provincial program which ceased in March 1996 and the first indications of which date back over 30 years.
[50] Further, the fact that disclosure of the documents concerned in the motion could be harmful to the plaintiff's case is not a defence under the Federal Court Rules, 1998 and so cannot serve as a basis for his claim of privilege.
[51] As to the relevance of the documents at issue, the defendant maintained that at this stage of the proceeding the Court is not required to consider the admissibility or evidentiary value of a document, which is in any case found to be relevant at the "discovery" stage by the party refusing disclosure.
[52] The defendant added that it is well settled that a government which has an interest in the outcome of litigation and objects to the disclosure of certain information in connection with that litigation is in a potential conflict of interest situation and this affects whether justice is seen to be done.
[53] Consequently, the courts should exercise great caution when a government which has entered into litigation claims privilege.
POINT AT ISSUE
[54] Should the documents in question be disclosed by the plaintiff?
ANALYSIS
Should the documents in question be disclosed by the plaintiff?
General rules regarding privilege
[55] Article 308 of the Quebec Code of Civil Procedure provides:
| Similarly, government officials cannot be obliged to divulge what has been revealed to them in the exercise of their functions provided that the judge is of the opinion, for reasons set out in the affidavit of the Minister or deputy minister to whom the witness is answerable, that the disclosure would be contrary to public order.
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De même, ne peut être contraint de divulguer ce qui lui a été révélé dans l'exercice de ses fonctions le fonctionnaire de l'État, si le juge est d'avis pour les raisons exposées dans la déclaration assermentée du ministre ou du sous-ministre de qui relève le témoin, que la divulgation serait contraire à l'ordre public.
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[56] Article 308 of the Quebec Code of Civil Procedure codified the common law rule relating to privilege.
[57] In Carey v. Ontario, [1986] 2 S.C.R. 637, the Supreme Court of Canada explained the basis for the privilege for non-disclosure:
It is obviously necessary for the proper administration of justice that litigants have access to all evidence that may be of assistance to the fair disposition of the issues arising in litigation. It is equally clear, however, that certain information regarding governmental activities should not be disclosed in the public interest. The general balance between these two competing interests has shifted markedly over the years. At times the public interest in the need for government secrecy has been given virtually absolute priority, so long as a claim to non-disclosure was made by a Minister of the Crown. At other times a more even balance has been struck.
This difference in emphasis resulted in part from the manner in which the interests collided in particular cases. The need for secrecy in government operations may vary with the particular public interest sought to be protected. There is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction. On the other side of the equation, the need for disclosure may be more or less compelling having regard to the nature of the litigation (e.g. between a criminal and civil proceeding) and the extent to which facts may be proved without resort to information sought to be protected from disclosure.
[58] Article 308 of the Quebec Code of Civil Procedure was also explained by the Supreme Court of Canada in [1983] 2 S.C.R. 60">Bisaillon v. Keable, [1983] 2 S.C.R. 60:
I do not dispute that art. 308 is a codification of the common law, as is s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, then in force, subject to the special features of the latter provision, which is limited to the production of documents and which resolves in a slightly different manner the question of whether the executive or judiciary is supreme: my brother Chouinard J., who wrote the unanimous reasons of the Court in [1982] 1 S.C.R. 215">Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215, recognized this at pp. 225 and 226. What is to be determined here, however, is the scope of this codification.
The way I see it, art. 308 was intended to solve two problems.
First, it recognized the supremacy of the judiciary over the executive as regards the priority that must be given to either Crown privilege or the administration of justice, in the event of a conflict between them. The Quebec legislator thus adopted the constitutional rule which this Court had indicated a preference for in [1954] S.C.R. 479">R. v. Snider, [1954] S.C.R. 479, and Gagnon v. Commission des Valeurs Mobilières du Québec, and it rejected the solution adopted by the Quebec Court of Appeal in Minister of National Revenue v. Die-Plast Co. and by the House of Lords in Duncan v. Cammell, Laird and Co. before the latter changed its opinion in Conway v. Rimmer, [1968] A.C. 910.
Second, article 308 of the Code of Civil Procedure ratifies, for cases where it is appropriate, the procedure of an affidavit of the Minister which had often been used in practice in claiming Crown privilege, and which had already been outlined in the paragraph added to art. 332 in 1958.
[59] It is accordingly the function of the judiciary to determine what should be disclosed. In order to arrive at a conclusion in this regard, the Court may direct that the disputed documents be entered in court for inspection by the Court. In Carey, supra, the Supreme Court of Canada
indicated:
I would, therefore, order disclosure of the documents for the court's inspection. This will permit the court to make certain that no disclosure is made that unnecessarily interferes with confidential government communications. Given the deference owing to the executive branch of government, Cabinet documents ought not to be disclosed without a preliminary judicial inspection to balance the competing interests of government confidentiality and the proper administration of justice.
. . . . .
It seems to me that in a claim of public interest immunity which, like the present, seems doubtful, the court should feel free to examine the documents. There has, for a long period now, been a far more open and flexible attitude towards discovery in this country than in England. I think deciding the issue on a bare prima facie case of a public interest in non-disclosure, such as the Court of Appeal did here, is out of place in Canadian practice.
[60] Although this was said with reference to Ontario, the rules indicated above are applicable for purposes of art. 308. In Fabien v. Dimanche-Matin Ltée, [1979] S.C. 879, Chevalier J. indicated:
[TRANSLATION]
The rules relating to art. 308 C.C.P. may be summarized as follows:
(1) as the body responsible for public safety and well-being, the government has a duty to see that no facts are disclosed either by witnesses or by the filing of documents which in its opinion would affect those public interests;
. . . . .
(7) it is well settled that the courts have the necessary authority to conduct a preliminary ex parte inspection of documents and evidence which a litigant intends to submit or file in order to decide on the importance or priority that should be given to the public interest as against that of the litigant.
[61] In Carey, supra, the Supreme Court agreed with the remarks of Woodhouse P. in the New Zealand case Fletcher Timber Ltd. v. Attorney General, [1984] 1 N.Z.L.R. 290 (C.A.):
At page 295, he made the following statement with which I am in total agreement:
If the balance of public interest can be seen to support the claim of immunity without prior inspection by the Judge then the consequential decision against production will be made without further ado. In that regard the certificate itself should demonstrate with sufficient particularity what is the nature and the significance of the documents both in terms of any need to preserve their confidentiality on the one hand and for the actual litigation on the other. But where this is not the position, where the Judge has been left uncertain, it is difficult to understand how his own inspection could affect in any way the confidentiality which might deserve protection. And in that situation I think it would be wrong to put aside such a direct and practical means of resolving the difficulty. Indeed if it were to happen the primary responsibility of the Courts to provide informed and just answers would often depend on processes of sheer speculation, leaving the Judge himself grasping at air. That cannot be sensible nor it is necessary when by the simple act of judicial reconnaissance a reasonably confident decision could be given one way or another.
See also Richardson J., especially at pp. 301-02 and McMullin J., especially at pp. 307-08. These judges make it clear, in McMullin J.'s words at p. 308, that:
. . . once the documents are admitted to relate to the case, as they are here, they should be available for inspection unless there is some reason shown why in the interests of public policy that course should not be followed. And the onus of establishing that they should not be produced for inspection must lie on the party which seeks a departure from the general rule.
[62] The Court will consider several factors in weighing the opposing interests of the proper administration of justice and the public interest in confidential information on government activities not being disclosed. These factors were listed in Quebec (Procureur général) v. Dorion, [1993] R.D.J. 88 (C.A.):
[TRANSLATION]
First, I think it is now well established that it is not for the Crown to ultimately decide what may and must remain confidential, but for the Court hearing the case. The Supreme Court has rejected the argument that certain classes of document are secret as such. For example, it has acknowledged, as La Forest J. wrote in Carey, echoing in this Wilson J.'s opinion in Smallwood, "that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest". Accordingly, it is the public interest which must be the judge's
guide and this assessment will involve the inspection and consideration of several points, such as the decision-making level, the exact contents of the document, the time of its disclosure, its importance to the administration of justice and the reasons for non-disclosure. In this connection, La Forest J. made an important reservation when documents deal with areas such as national security or diplomatic relations: in that event, the judge may then agree to exclude them, even without inspecting them, since, he wrote, "on such issues, it is often unwise even for members of the judiciary to be aware of their contents, and the period in which they should remain secret may be very long". In any event, the judge must act with caution before ordering the filing of documents which should be kept confidential in the public interest.
In the case at bar, I do not doubt that the judge had the power and the right to inspect the document the filing of which was sought. The Court can only decide if the document, whether issued by the office of the Attorney General or by that of a Minister, is confidential, and if so, whether there is an overriding public interest that it be excluded from the evidence.
[63] In Carey, supra, the Supreme Court of Canada said on this point:
That case determines that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest. The fact that such documents concern the decision-making process at the highest level of government cannot, however, be ignored. Courts must proceed with caution in having them produced. But the level of the decision-making process concerned is only one of many variables to be taken into account. The nature of the policy concerned and the particular contents of the document are, I would have thought, even more important. So far as the protection of the decision-making process is concerned, too, the time when a document or information is to be revealed is an extremely important factor. Revelations of Cabinet discussion and planning at the developmental stage or other circumstances when there is keen public interest in the subject matter might seriously inhibit the proper functioning of Cabinet government, but this can scarcely be the case when low level policy that has long become of little public interest is involved.
To these considerations, and they are not all, one must, of course, add the importance of producing the documents in the interests of the administration of justice. On the latter question, such issues as the importance of the case and the need or desirability of producing the documents to ensure that it can be adequately and fairly presented are factors to be placed in the balance. In doing this, it is well to remember that only the particular facts relating to the case are revealed. This is not a serious departure from the general regime of secrecy that surrounds high level government decisions.
[64] Accordingly, whatever the class of documents the factors mentioned above will be considered in weighing the opposing interests.
[65] In the case at bar, the parties discussed the fact that several documents were intended for the highest decision-making level of the Quebec government, namely the Cabinet. However, most of the documents were prepared by public servants working for lower levels of the government.
[66] The defendant argues that since most of the documents were prepared by public servants working for lower levels of the government, there should not be a claim of privilege for the documents.
[67] The plaintiff argued that the fact that the documents were prepared by public servants working for lower levels of the government should not have the effect of reducing the importance of those documents, since their purpose was primarily to define the Quebec government's position in relation to the government.
[68] In this regard, I feel that the Supreme Court has dealt with the parties' concerns in Carey, supra. The Supreme Court of Canada indicated that the fact that documents may concern the decision-making process at the highest level of government cannot be ignored. Accordingly, the courts must proceed with caution when ordering that they be produced. However, the Supreme Court added that the level of the decision-making process is only one of the variables to be taken into account.
[69] As a result this test, though important, does not necessarily take priority over the other tests. Indeed, in Carey, supra, the Supreme Court indicated:
Rather, these cases indicate that the period of protection solely for preserving the confidentiality of the government decision-making process will be relatively short. While it may be true as the Court of Appeal states that the government policy concerns - the tourist and recreational industry in northwestern Ontario - may still be ongoing, I find it difficult to accept its conclusion that the advice given and decisions taken respecting the transaction involved in this case have not so lost their immediacy that a court must concern itself about them. We are talking about a transaction that took place over twelve years ago in connection with what by any measure can scarcely be regarded as high government policy.
Sworn statements by Minister or Deputy Minister mentioned in art. 308 of Quebec Code of Civil Procedure, affidavits of documents and affidavits in reply
[70] Article 308 of the Quebec Code of Civil Procedure provides that the Minister or Deputy Minister to whom the witness is answerable shall set out in an affidavit the reasons why the disclosure would be contrary to public order.
[71] The defendant argued that the Deputy Minister's statement in the case at bar is only a general opinion, essentially the same as those given in the other three affidavits in reply, without specific reference to the documents covered by the motion and based, first, on a partial review of the documents concerned and, second, on what was reported to him by Messrs. Audet, Lafontaine and Wallot, who allegedly [TRANSLATION] "explained the content of the documents sought by the motion".
[72] According to the defendant, this statement is lacking in real evidentiary value.
[73] In [1965] S.C.R. 73">Gagnon v. Quebec (Commission des valeurs mobilières), [1965] S.C.R. 73, the Supreme Court of Canada said concerning notices given pursuant to art. 332 of the Quebec Code of Civil Procedure (now art. 308):
[TRANSLATION]
In my view - and this makes it unnecessary for me to consider any other point - the written certificate provided by the Attorney General, relying on the exception to the rule, does not entirely and fully meet the requirements of the foregoing questions. I concur with the opinion of Hyde J. and would say that the precise questions which the trial judge ordered the secretary of the Commission to answer did not by themselves indicate that public order was concerned, and like the learned judge I feel that, in his words, the Attorney General's certificate was not related to the facts on which the appellant wished to examine the witness, as it ought to be in order to meet the requirement for there to be privilege, but is a general formula applicable to all cases, regardless of the facts on which a witness is to be questioned.
[74] In Carey, supra, the Supreme Court said regarding affidavits pleading public interest immunity with reference to Ontario:
In making a claim of public interest immunity, the Minister (or official) should be as helpful as possible in identifying the interest sought to be protected. Examples of how this should be done appear in Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.), and Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), where the Minister described with as much detail as the nature of the subject matter would allow the precise policy matters sought to be protected from disclosure.
Counsel for Carey argued that Dr. Stewart's affidavit is inadequate in that it does not set forth with sufficient particularity the interests sought to be protected. I suppose the point may be put in this way. Certainly the grounds advanced for protection are, as some cases have put it, somewhat amorphous and as Thorson J.A. pointed out, less helpful than they might be. Nonetheless, it seems to me that Thorson J.A. was correct in his view that in substance what was sought was the protection as a class of what he generally described as "Cabinet documents", i.e. documents prepared by government departments and agencies in formulating government policies, decisions made by Cabinet, and the like. That being so, Dr. Stewart did not see it as necessary to particularize the nature of the information sought to be protected as would necessary if the claim for protection was based on the nature of the contents of the documents. Essentially what the certificate argues is that the process by which government policy is determined by the Executive Council must remain confidential whatever the policy may be and however much time (save when it has become of historical interest only) has elapsed since the policy was developed . . .
So viewed, the question is not so much whether the affidavit is insufficient as whether the substance of the claim is one to which the courts should give effect.
[75] The question for the Court here is whether the plaintiff's claims regarding the public interest justify granting a privilege of non-disclosure for the documents concerned.
[76] The Court must make its decision by applying various tests. However, the defendant's arguments on these tests are very relevant. For example, the defendant properly maintained that several documents date from some thirty years ago and that the plaintiff presented no evidence by affidavits of documents and affidavits in reply that it was in the public interest not to disclose
them.
[77] Nonetheless, the plaintiff's affidavits of documents indicate the name of the documents and date and the affidavits in reply give an explanation of the privilege claimed. However, this explanation is framed in general terms and it may be that those general terms do not suffice to identify the document in the affidavits of documents. Also, the explanation may not be sufficient in view of the aforementioned tests. For example, when the document is nearly thirty years old does it suffice for the explanation to be framed in general as follows:
[TRANSLATION]
Document No. 16 of my affidavit of documents should in part be covered by the privilege of confidentiality because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled. It would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
[78] Document No. 16 is that which appears in Serge Audet's affidavit and which is identified as follows:
[TRANSLATION]
16. 71-05-19 Memorandum explaining draft order - Negotiating strategy - Legal opinion
[79] It may in fact be difficult to decide, without consulting the documents, whether these documents should be covered by privilege.
[80] At the hearing counsel for the plaintiff filed the 71 documents in question with the Court
under confidential seal. The parties agreed that if the judge came to the conclusion that he had to inspect the documents in order to decide on their disclosure, he would make his decision in general terms both as to the relevancy of the documents and individually as to their disclosure.
[81] I dit not accept either the plaintiff's argument that the documents were related to the case although not relevant or the contention that the information contained in those documents had some interest for the case although they could not be disclosed.
[82] I accordingly conclude that prima facie relevance was established by the defendant for all the 71 documents in question.
[83] I therefore concluded that I should inspect each of the documents individually to decide whether the Court should grant the privilege of confidentiality for any of them.
[84] Before proceeding to the individual analysis of each document, I should mention that in some cases they constitute legal opinions, documents intended for Cabinet, exchanges between various public servants and documents containing appendices and that those documents extend over a period of more than 25 years.
[85] It was easier to decide when the documents were legal opinions or discussions of legal opinions, or were ministerial documents for the Cabinet.
[86] It was less easy to determine the need to preserve the confidentiality of certain documents which in some cases were a medley of financial documents, strategic opinions and continual updates of a federal-provincial interplay lasting over 30 years and involving para-governmental organizations which have since disappeared and the implementation of a federal-provincial agreement which has not been in force for five years now.
[87] I have therefore decided not to combine the questions but to give an individual decision on each document.
AFFIDAVIT OF SERGE AUDET
Document No. 17
[88] This is an internal memorandum from the Associate Deputy Minister to the Deputy Minister regarding the draft order. The memorandum is dated July 1, 1971. In my view, there is no need for this document to be covered by the confidentiality privilege claimed, as I am not persuaded that its disclosure could give the federal government an unfair advantage if the case at bar is settled. The disclosure of this document also does not appear to me to adversely affect the conduct of relations between the Government of Quebec and the federal government. I also could see in this document no legal opinion or discussion of a legal opinion indicating that the document should be covered by the confidentiality privilege as a professional secret between a solicitor and his client.
Document No. 23
[89] This is a memorandum on the position Quebec was to take in a forthcoming federal-provincial conference, and the document is dated November 27, 1973: I do not feel that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled. The disclosure would not in my opinion adversely affect the conduct of relations between the Government of Quebec and the federal government and the document contains no discussion of a legal opinion to justify coverage by the confidentiality privilege as a professional secret between a solicitor and his client.
Document No. 24
[90] This is a memorandum from Paul Périard to the Minister of Social Affairs titled [TRANSLATION] "for reference" and dated March 12, 1974. Although this document originates at the Department of Justice, the signatory does not appear to be a lawyer and the document does not appear to be a legal opinion in whole or in part. I was not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage in the event that the case at bar is settled or that a disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 35
[91] This is a letter from the Minister of Social Affairs seeking a legal opinion following the receipt of a letter from the federal Minister of Health. In my opinion, this is a request for a legal opinion, which should be covered by the confidentiality privilege as a professional secret between a solicitor and his client. The confidentiality privilege will therefore be granted.
Document No. 38
[92] This is a memorandum dated November 12, 1974 and addressed to the Associate Deputy Minister, Planning, Young Offenders Act, Aubert Ouellet, by Paul Périard, director. It is a document which reviews the background to the problem and a possible strategy for the Government of Quebec. The document was prepared over 26 years ago and I am not persuaded that the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that the disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 128
[93] This is a memorandum from Michel Hamelin of the federal-provincial agreements branch to André Bédard and Claude Turgeon, whose department is not identified. I am not persuaded that this document and the paragraph identified should be covered in whole or in part by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that the disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 131
[94] This is a memorandum by Jean-Claude Deschênes, Deputy Minister at the Department of Social Affairs, prepared for the Minister of Social Affairs and dated February 16, 1993. It is an internal memo on strategy with a problem outline and recommendations on the position the Government of Quebec should take toward the federal government.
[95] On reading the document I am persuaded that this document should be covered by the confidentiality privilege as a document intended for members for the Government of Quebec's Cabinet. I also agree that the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and that disclosure could adversely affect the conduct of relations between the Government of Quebec and the federal government. The confidentiality privilege will therefore be maintained.
Document No. 132
[96] This is a covering letter signed by the director of social service policies at the social services programs branch of the Quebec Department of Social Affairs dated February 16, 1983 to Jeanne d'Arc Vaillant, Associate Deputy Minister at the Department of Social Affairs: a draft memorandum for the signature of the Deputy Minister Jean-Clause Deschênes, addressed to Pierre-Marc Johnson, Minister of Social Affairs, is attached.
[97] This is a document for a Cabinet member dealing very intimately with Quebec's position and the Government of Quebec's strategy toward the federal government and I am persuaded that the covering letter and the draft memorandum should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government. The confidentiality will therefore be maintained.
Document No. 141
[98] This is a summary of a meeting held on April 26, 1983. Five persons were present at the meeting, representing four different departments. The meeting was to take action on a letter written by the Deputy Minister, though this was not the subject of a claim for confidentiality since it also appears in the list attached to the affidavit of documents, with No. 139. As the Deputy Minister Deschênes' letter has already been disclosed, there is nothing in document No. 141 that could convince me that disclosure of the document would give the federal government an unfair advantage if the case at bar is settled or that it could adversely affect the conduct of relations between the Government of Quebec and the federal government. The confidentiality privilege will therefore be disallowed in this case.
Document No. 144
[99] This is a telex sent to Jean-Claude Deschênes, Deputy Minister at the Department of
Social Affairs, by R.M. MacDonald, Deputy Minister, Ontario Ministry of Community and Social Services, and a letter from R.M. MacDonald, Deputy Minister, to Germain Hallé, Associate Deputy Minister, Administration, at the Quebec Department of Justice.
[100] The letter concerns the negotiating strategy to be used by the various provinces in dealing with the federal government.
[101] I am persuaded that these two documents should be covered by the confidentiality privilege because the disclosure of this document could give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government. Document No. 144 must therefore be covered by the confidentiality privilege.
Document No. 151
[102] This is an unsigned document dated June 9, 1983 which originated with the federal-provincial agreements branch. This document, described as a strategy document, in fact discusses an action plan. However, I was not persuaded that the document should be covered by the confidentiality privilege and that its disclosure could give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 153
[103] This is a document titled [TRANSLATION] "note to file" signed by Michel Hamelin and dealing with a meeting of responsible Deputy Ministers in Ottawa on June 22, 1983. The document covers discussions with the Deputy Minister of Social Affairs as well as Germain Hallé, Associate Deputy Minister, administration, at the Department of Justice.
[104] I was persuaded from reading this document that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government. Document No. 153 will therefore remain confidential.
Document No. 154
[105] This document is an identical copy of document No. 153 and, contrary to their designation in the affidavit of documents, of the same date, that is with respect to a meeting held on June 22, 1983, but both dated June 23, 1983. Document No. 154 will remain confidential for the reasons given in the preceding paragraph.
Document No. 172
[106] This is an internal memorandum from Jacques Lamonde, Deputy Minister, budget and financial control,* to Jean-Claude Deschênes, Deputy Minister, and the memo is dated August 18, 1983. It is a document setting out the situation and negotiating strategy with the federal government, and reading the document persuaded me that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 174
[107] This is a letter from the Deputy Minister of Social Affairs, Jean-Claude Deschênes, to Robert Normand, Deputy Minister of Finance, dated September 7, 1983. It is a document on negotiating strategy which mentions discussions between several Ministers in the Quebec government. Reading the document persuaded me that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 181
[108] This is a letter from Jean-Claude Deschênes, Deputy Minister of Social Affairs, to Robert Normand, Deputy Minister of Finance. This letter, which is a follow-up to the preceding one, also refers to discussions between members of the Cabinet and to the Government of Quebec's particular strategy. Reading the document persuaded me that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 185
[109] This is a document titled [TRANSLATION] "analysis of the progress of federal-provincial discussions on young offenders" and is signed by Michel Hamelin of the federal-provincial agreements branch, dated October 11, 1983. As its title indicates, it is an analytical document and I am not persuaded that this document should be covered by the confidentiality privilege, that its disclosure could give the federal government an unfair advantage if the case at bar is settled or that it adversely affects the conduct of relations between the Government of Quebec and the federal government. The document will not therefore be privileged.
Document No. 205
[110] This document, dated February 13, 1984, also originated with Michel Hamelin of the federal-provincial agreements branch and is a summary of the situation at February 10, 1984. Reading the document did not persuade me that it should be covered by the confidentiality privilege because its disclosure could give the federal government an unfair advantage if the case at bar is settled or that disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government. The document will not therefore be privileged.
Document No. 208
[111] This is a memorandum for the Cabinet prepared jointly by the Minister of Justice, the
Minister of Social Affairs and the Minister of Intergovernmental Affairs and dated February 23, 1984. The purpose of the document is to define the mandate of the Quebec delegation to the [TRANSLATION] "Conference of Ministers Responsible for Justice Affecting Young Persons" to be held on February 28, 1984.
[112] In my opinion, this document should be covered by the privilege of confidentiality because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct [of] relations between the Government of Quebec and the federal government.
Document No. 210
[113] This is a document prepared by the federal-provincial agreements branch and dated February 23, 1984. It is titled [TRANSLATION] "summary of negotiations for a new cost-sharing agreement". I have inspected the document and in my opinion I was not persuaded that the document should not be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government. There was also no mention that the document was intended for members of the Government of Quebec's Cabinet, nor was it signed or addressed to anyone in particular.
Document No. 216
[114] This is one paragraph from a five-paragraph letter for which confidentiality was sought. It was a letter signed by the Deputy Minister of Finance Robert Normand and addressed to the Deputy Minister of Social Affairs, Jean-Claude Deschênes, on March 20, 1984.
[115] This paragraph mentions discussions between the Quebec Minister of Finance and the federal Minister of Finance and I was persuaded from reading the document that the paragraph should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government. The second paragraph of the letter will therefore be covered by the confidentiality privilege.
Document No. 218
[116] This is a memorandum on the state of negotiations with the federal government on the Young Offenders Act at March 23, 1984: the said document was signed jointly by Michel Hamelin of the Department of Social Affairs, Anne Marek of the Department of Justice with the assistance of Alain Gauthier of the Department of Finance, and Jean Chouinard of the Department of Canadian Affairs, dated March 23, 1984. The document contains a description of the background to the problem and an assessment of the federal government's proposal as well as certain recommendations. However, I was not persuaded that this document should be covered by the confidentiality privilege because its disclosure could give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 222
[117] This is a document signed by Michel Hamelin of the federal-provincial agreements branch, dated April 6, 1984 and titled [TRANSLATION] "note to young offenders file". It is a general memorandum following a meeting between the two Ministers, federal and provincial, in Ottawa on the preceding April 4. Reading the document did not persuade me that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 223
[118] This is a memorandum regarding the signature by Quebec of the agreement in principle proposed by the federal government in connection with the Young Offenders Act and the provisions for implementing a final agreement on young offenders. This unsigned document was prepared by the federal-provincial agreements branch and dated April 17, 1984. The document discusses possible implementation provisions, recommendations and a number of points raised if the document is signed. Reading the document did not persuade me that it should be covered in whole or in part by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 224
[119] This is a letter from the Deputy Minister of Social Affairs, Jean-Claude Deschênes, to Daniel Jacoby, Deputy Minister of Justice, with a copy to Robert Normand, Deputy Minister of Finance. The letter is also accompanied by a memorandum on federal cost-sharing for young offenders from 1979 to 1984, prepared by the federal-provincial agreement branch and dated April 13, 1984. Reading these two documents persuades me that they should be covered by the confidentiality privilege since [their] disclosure could give the federal government an unfair advantage if the case at bar is settled and disclosure could adversely affect the conduct of relations between the Government of Quebec and the federal government. Further, the document contains a discussion of a legal opinion and a request for a legal opinion which should be covered by the confidentiality privilege as a professional secret between a solicitor and his client. The document will therefore be privileged.
Document No. 225
[120] This is the same letter from Mr. Deschênes to Mr. Jacoby, with a copy to Mr. Normand, dated April 19, 1984. However, no document is attached. For the reasons given in the preceding paragraph, reading the document persuaded me that it should be covered by the confidentiality privilege.
Document No. 230
[121] This is a letter to the Minister of Justice from the budget and financial control branch of the Department of Social Affairs, the signatory of which is not identified. Attached to this letter is a summary memorandum to the Minister of Justice from the federal-provincial agreements branch of the Department of Social Affairs, dated May 24, 1984. I have examined both documents and am persuaded that they should be covered by the confidentiality privilege because [their] disclosure would give the federal government an unfair advantage if the case at bar is settled and disclosure would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 234
[122] This is a memorandum from Jean Chouinard, Cabinet counsel, to the Canadian Intergovernmental Affairs Secretariat, addressed to Jean-Louis Desrochers, director of the DASEC, dated August 9, 1984 and relating to a reply by the federal Minister to a letter from the
Quebec Minister of Justice regarding the agreement on young offenders.
[123] I have inspected the document and I am not persuaded that the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 255
[124] This is an internal memorandum from Michel Hamelin to Jean-Louis Desrochers regarding an interdepartmental meeting between the Department of Social Affairs, the Department of Justice, the Department of Finance and the Canadian Intergovernmental Affairs Secretariat held on June 12, 1985 about the young offenders question. It is an internal memorandum noting the federal government's refusal to negotiate further. On reading the document I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 256
[125] This document is identical to document 255. I accordingly conclude that it should be covered by the confidentiality privilege, for the reasons mentioned in the preceding paragraph.
Document No. 257
[126] This is a memorandum from Madeleine Farley to Marc Boucher, director, federal-provincial agreements branch, and dated September 4, 1985. It is a legal opinion prepared by counsel. The document should therefore be covered by the confidentiality privilege as a professional secret between a lawyer and her client.
Document No. 279
[127] This is a legal opinion prepared by Madeleine Farley for Marc Boucher, director, federal-provincial agreements branch, which as a legal opinion should be covered by the confidentiality privilege as a professional secret between a lawyer and her client.
Document No. 281
[128] This is a legal opinion prepared by Thomas Dupéré and addressed to Germain Hallé, Associate Deputy Minister. The legal opinion is attached to a Cabinet memorandum regarding the federal-provincial sharing of costs for services to young offenders.
[129] In my view, the legal opinion should be covered by the confidentiality privilege as a professional secret between a lawyer and his client and the Cabinet memorandum should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 283
[130] This is a document prepared by Madeleine Farley, counsel to the federal-provincial agreements branch, and is a note to file attached to another information document titled [TRANSLATION] "Probation in Quebec".
[131] The note to file signed by Ms. Farley is not a legal opinion and should not be covered by the confidentiality privilege. However, the paragraph identified on page 1 of the document [TRANSLATION] "probation in Quebec" should be covered by the confidentiality privilege as a professional secret between a lawyer and her client. That part of the document will therefore not be disclosed.
Document No. 298
[132] This is an internal memorandum consisting of a report on a federal-provincial meeting on multi-functional institutions prepared by André D'Astous, acting Director General, budget and administration, for Réjean Cantin, Deputy Minister. The document attached is a note on the meeting in Quebec of various officials, and was prepared by Marc Boucher of the federal-provincial agreements branch.
[133] I inspected both documents and was not persuaded that these documents should be covered in whole or in part by the confidentiality privilege because [their] disclosure would give the federal government an unfair advantage if the case at bar is settled or that they would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 299
[134] This is a document titled [TRANSLATION] "Notes on the special Quebec-Ottawa meeting of December 10, 1986" in Ottawa, mentioning the presence of six officials, which is not signed and dated December 15, 1986; however, the letters "MB" could suggest that the document was signed by Marc Boucher. In any event, I inspected the document and was not persuaded that the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 302
[135] This document is identical to document No. 299 and, for the same reasons, the document should not be covered by the confidentiality privilege.
Document No. 304
[136] This document is identical to document No. 298 above and, for the same reasons given earlier, I do not feel that this document should be covered by the confidentiality privilege.
Document No. 305
[137] This is a document entitled [TRANSLATION] "rough notes on certain discussion points
with Ottawa representatives regarding the multi-functional CAR": the document is dated January 7, 1987 and not signed, but has the initials "MB" at the end.
[138] I was not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 306
[139] This is a document prepared by Mireille Fillion, director of community, family and youth services, and addressed to Paulin Dumas, acting Director General, prevention and community services and André D'Astous, acting Director General, budget and administration, and dated January 8, 1987.
[140] The document is a memorandum in preparation for the federal-provincial meeting of January 9, 1987 on the qualification of Quebec for the CAP program on cost sharing in multi-functional CAR. I do not think the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would be likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 308
[141] This is a document titled [TRANSLATION] "notes in preparation for the meeting of the Minister of Health and Social Services with federal Ministers, Jake Epp of Health and Welfare and James Kelleher, Solicitor General", dated January 21, 1987. This document contains several handwritten additions and personal notes in the margin. The document is signed by Michel Hamelin and dated January 19, 1987. I do not think that this document contains privileged information which, after fourteen years, should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 318
[142] This is a document signed by Serge Audet and Jean-Marc Neault of the federal-provincial
agreements branch and dated September 9, 1987, titled [TRANSLATION] "points that must be covered by a reserve clause". According to the plaintiff's reply record and the certificates of members in good standing of the Quebec Bar filed, it would not appear that Serge Audet was a member of the Quebec Bar. I therefore cannot conclude that this document, signed both by a lawyer and by someone who is not a member of the Bar, could be regarded as a legal opinion or even a discussion of a legal opinion.
[143] I have inspected the document and I also do not feel that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 327
[144] This is an internal memorandum to Michel Hamelin, dated January 22, 1988 and signed by Marc Boucher, chief of the agreements administration and negotiation section. The document refers both to a memorandum by Jean-Paul Dupéré and another note by Jeanne Houde of the Department's legal services, dated the day before.
[145] This document discusses several points contained in two legal opinions and should be covered by the confidentiality privilege as a professional secret between a solicitor and his client.
Document No. 332
[146] This is a memorandum to the Cabinet prepared by Thérèse Lavoie-Roux, Minister of Health and Social Services, and Gilles Rémillard, Minister responsible for Canadian Intergovernmental Affairs, dated March 16, 1988.
[147] As this document was intended for members of the Quebec government's Cabinet and contains a discussion of legal opinions, it should also be covered by the confidentiality privilege as a professional secret between a solicitor and his client, because its disclosure would give the federal government an unfair advantage if the case at bar is settled, and would adversely affect
the conduct of relations between the Government of Quebec and the federal government.
Document No. 338
[148] This is an internal memorandum from Pierre-Paul Veilleux to André d'Astous of the budget and administration branch, dated July 19, 1989. Several handwritten annotations appear in the margins of the document. The memorandum is first a covering letter for another document which consists of a memorandum from Jean-Marc Neault, attorney, to Pierre-Paul Veilleux, and the latter document is further to a legal opinion already given to the Department on "sharing" under the CAP and the cost of YOA services for the period 1979-84.
[149] I have no hesitation in saying that the document should be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
Document No. 339
[150] This is a letter from André D'Astous, Associate Deputy Minister, budget and administration, at the Department of Health and Social Services, to Diane Wilhelmy, Secretary General at the Canadian Intergovernmental Affairs Secretariat and dated August 31, 1989.
[151] Another identical letter, dated the same day, is addressed to Jacques Chamberland, Deputy Minister of the Department of Justice, and Claude Séguin, Deputy Minister at the Department of Finance.
[152] These three letters set out a legal opinion obtained from the Department of Justice and I have no hesitation in concluding that three documents should be covered by the confidentiality privilege because their disclosure would give the federal government an unfair advantage if the case at bar is settled, and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 340
[153] This document is titled [TRANSLATION] "comments by the Quebec Department of Finance on the document for presentation to the CIRB concerning Quebec's claim to the CAP for the YOA". This document originated with the federal-provincial financial policy branch and is dated November 23, 1989, not signed and has the notation [TRANSLATION] "preliminary" at the top of the document. The document is over eleven years old and not signed or addressed. I am therefore persuaded that this document should not be covered by the confidentiality privilege.
Document No. 341
[154] This is a memorandum from the Government of Quebec's committee for coordination and intergovernmental relations. The document contains sensitive notes regarding the Government of Quebec's negotiating strategy and it seems to me that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, and is likely to adversely affect the conduct of relations between the Government of Quebec and the federal government. Additionally, the document refers at length to a legal opinion from the Department of Justice dated April 14, 1989 and should also be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
Document No. 347
[155] This is a memorandum from Pierre-Paul Veilleux to André D'Astous, Associate Deputy Minister, dated February 11, 1992. I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 350
[156] This is an internal memorandum from Serge Audet to Jeanne Houde of legal services requesting a legal opinion on Quebec probation services.
[157] I am persuaded that this document contains both a discussion of a legal opinion and a request for legal opinion, which should be covered by the confidentiality privilege as a professional secret between a lawyer and her client.
Document No. 354
[158] This is a letter from Jean-Roch Pelleter of federal-provincial affairs to the budget and administration branch, addressed to Julie Grignon of the Department of Finance, and the documents accompanying it are a legal opinion by Jean Demontigny of the Department of Justice, a memorandum prepared pursuant to that legal opinion by the Department of Justice, a summary of the legal opinion and a summary of the status of the file.
[159] I have no hesitation in considering that all the documents should be covered by the confidentiality privilege, and just as document No. 341 above was covered by the confidentiality privilege, all the documents, which contain both a discussion of a legal opinion and a legal opinion and other documents likely to give the federal government an unfair advantage, should be covered by the confidentiality privilege.
Document No. 355
[160] I have inspected the document titled [TRANSLATION] "summary analysis" which gives a description of events occurring in the file from 1983 to 1995, with reference to a number of documents which were produced after that date. The document is not signed and there is also no addressee. I was not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 359
[161] This is an internal memorandum from Associate Deputy Minister Cécile Cléroux to Luc M. Malo, Deputy Minister at the Department of Health and Social Services, dated January 26, 1996. I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it is likely to adversely affect the conduct of relations between the Government of Quebec and the federal government. Additionally, Associate Deputy Minister Cléroux makes only a passing reference to the fact that legal opinions favourable to the defence of Quebec's position have been received, giving no further details and not identifying who drafted these legal opinions and when. This document therefore does not have to be regarded as a discussion of a legal opinion which should be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
Document No. 363
[162] This is an internal memorandum from Marcel Gagné to John Gauvreau of the Department of Health and Social Services, dated May 7, 1996. In my opinion, it is simply a letter from one official to another, asking that the file be activated, and I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it is likely to adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 369
[163] This is an information note to the Cabinet concerning the CAP, prepared by Jean Rochon, Minister of Health and Social Services, Bernard Landry, Quebec's Minister of State for the Economy and Finance, and Jacques Brassard, Minister responsible for Canadian Intergovernmental Affairs, and it is dated October 1996. This information note contains a number of appendices all relating to Quebec's position and the various legal opinions to the government in support of its position. I am therefore persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, and would adversely affect the conduct of relations between the Government of Quebec and the federal government, and it is also a document intended for the Quebec Cabinet members and contains a discussion of legal opinions, which should be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
Document No. 370
[164] This is an explanatory note for the Cabinet session of December 3, 1996. The said note was to be used as a reference document for the Minister of State for the Economy and Finance and the Minister responsible for Canadian Intergovernmental Affairs. This document also contains a discussion of legal opinions directly related to the Government of Quebec's position.
[165] I have no hesitation in considering that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, and it would adversely affect the conduct of relations between the Government of Quebec and the federal government, and it also contains a discussion of legal opinions and thus should be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
AFFIDAVIT OF JACQUES LAFONTAINE
Document No. 40
[166] This is a memorandum from Jean-Roch Pelleter to Pierre-Paul Veilleux, director of federal-provincial affairs at the Department of Health and Social Services, dated November 16, 1992 and dealing with a proposal to the CAP on housing resources. I have inspected the document and it is essentially an analytical document and a summary of the situation with regard to [TRANSLATION] "housing resources". Although the document contains certain proposals, it is an exchange of information between two officials and is not legal in nature. I do not feel that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 80
[167] This is essentially the same document as document No. 369, attached to the affidavit of Serge Audet, which was regarded in its entirety as a document to be covered by the confidentiality privilege. Document No. 80 will therefore also be covered by the confidentiality privilege for the same reasons.
AFFIDAVIT OF CLAUDE WALLOT
Document No. 57
[168] This is a memorandum from André Bédard to Claude Garcia, Associate Deputy Minister, planning, which is dated November 22, 1977. I have inspected the document, and in particular the last part of the final paragraph of the letter, for which confidentiality is sought. This is a comment on the percentage of eligible activities or of probable eligible clientele (my emphasis). This document originated over 23 years ago and I am not persuaded that a part of the document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 60
[169] This is a letter dated December 9, 1977 from Thomas Dupéré to Claudine Sotiau, with a copy to André Bédard.
[170] This document was prepared over 23 years ago and consists essentially of comments on the federal-provincial sharing of SSC costs. Although Thomas Dupéré is a lawyer, I cannot come to the conclusion that all or part of this document is a legal opinion from Thomas Dupéré and that it should accordingly be regarded as privileged. I therefore conclude that this document should not be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government, nor that all or part of the document is a legal opinion from Thomas Dupéré and may be covered by the confidentiality privilege as a professional secret between a lawyer and his client.
Document No. 63
[171] This is a memorandum from André Bédard, Chief, federal-provincial agreements section, to Claude Garcia, Associate Deputy Minister, planning, on January 18, 1978 with regard to LCSC sharing under the CAP. This document consists essentially of an evaluation of the services provided by the LCSCs and a description of methodology.
[172] The parts identified as requiring privilege are essentially only the percentages established from surveys made in the LCSCs and recommendations regarding the possible participation of the federal government. Appendix C is an estimate of the cost of operating the LCSCs and the federal contribution for the 1971-1972 and 1977-1978 fiscal years. I was not persuaded that the parts of this document and Appendix C should be covered by the confidentiality privilege because [their] disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 64
[173] This document is dated January 24, 1978 and is a reply by Claude Garcia, Associate Deputy Minister, to André Bédard, chief, federal-provincial agreements section. It is essentially an answer to the letter received earlier (document No. 63) and a comment on the negotiation with the federal government.
[174] I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 71
[175] This is a memorandum from André Bédard to Gilles Desrochers, dated April 21, 1978. It is an internal analysis made over 22 years ago of a reply received from the federal government, which has several handwritten notes and at the very end indicates the desire to discuss the question further.
[176] I am not persuaded that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 116
[177] This is an internal memorandum from Jacques Lamonde, Associate Deputy Minister, budget and financial control, to Jean-Claude Deschênes, Deputy Minister at the Department of Social Affairs, dated March 24, 1982. The document deals with social services in schools and
contains a highly strategic comment on negotiating related to an assessment of the arguments of the two parties concerned.
[178] In the circumstances, I consider that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled and would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 119
[179] This is a letter from Roger Ladouceur, executive assistant to the Deputy Minister of Social Affairs, addressed to Jacques Lamonde, Associate Deputy Minister, budget and financial control. The document deals with social services in the schools. As the previous document, No. 116, was regarded as privileged and this letter from Mr. Ladouceur is a reply to the previous letter, and also refers to the points discussed in Mr. Lamonde's letter to Mr. Deschênes, I consider that this document should also be covered by the confidentiality privilege for the reasons given above.
Document No. 127
[180] This is a letter from André Bédard, Director, federal-provincial agreements, to Jacques Lamonde, Associate Deputy Minister, at the budget and financial control branch of the Department of Social Affairs, dated May 9, 1984, on the subject of federal cost sharing for SSCs and LCSCs.
[181] I have inspected the document, which was written over 16 years ago, and which discusses in particular the possibility of conducting surveys among SSC and LCSC users, and in particular suggests continuing discussions in this regard. I conclude that this document should be covered by the confidentiality privilege since its disclosure would not give the federal government an unfair advantage if the case at bar is settled, nor would it adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 131
[182] This is a letter from André V. Bergeron, chief, agreement administration section, to Marc Lecours, Director, financial system and policy, at the Department of Health and Social Services, which is dated August 31, 1988. It is an exchange between two officials on the possibility of reviewing the allocation of social service costs in the schools. This memo is over twelve years old and ultimately contains only a suggestion that there should be consultations about a particular problem.
[183] I do not think that this document should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 132
[184] This is a memorandum from Jean-Guy Tremblay, intergovernmental negotiation and coordination, to Jean-Roch Pelletier, the subject of which is [TRANSLATION] "social services in the schools". It is essentially an internal analysis of school social services which could possibly become part of the negotiation. The document is nine years old and I am not persuaded that it should be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 133
[185] This is a memorandum from Diane Grenier to Jean-Roch Pelletier on social services in the schools, dated January 16, 1992. Confidentiality was requested for pages 13 and 14 of the document. Those pages are an internal analysis of various aspects of the question of social services in the schools and the various financial results associated with these costs. It is essentially an analytical document communicated between two officials with the possibility of discussion with such partners as the Fédération des CLSC et des CSS de Montréal. The document was prepared over nine years ago and I am not persuaded that it should be covered in part by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 135
[186] This is a memorandum from Pierre-Paul `Veilleux to Léonard Gilbert, dated December 9, 1992, dealing with social services in the schools. Once again, it is an internal analytical document sent by one official to another on possible action to be taken in the schools in future. This document does not refer to a legal opinion or to specific recommendations on negotiation. I conclude that this document should not be covered by the confidentiality privilege because its disclosure would give the federal government an unfair advantage if the case at bar is settled, or that it would adversely affect the conduct of relations between the Government of Quebec and the federal government.
Document No. 138
[187] This document is an identical copy of document No. 369 in the affidavit of documents of Serge Audet and document No. 80 in the affidavit of documents of Jacques Lafontaine.
[188] These two documents were held to be confidential and, for the reasons mentioned above with regard to the other two documents, document No. 138 should also be covered by the confidentiality privilege. I note also that the notification dated November 23, 1996, signed by the three Ministers Rochon, Landry and Brassard, and addressed to the three Ministers Pettigrew, Martin and Dion, and the page attached, will not be covered by the confidentiality privilege for obvious reasons.
[189] Accordingly, THE COURT ORDERS the plaintiff to serve on the defendant within ten days of expiry of the appeal deadline the documents for which the claim of privilege has not been approved.
[190] Those of the documents inspected by the Court for which privilege was approved will be returned to the plaintiff within ten days of expiry of the appeal deadline.
[191] The other documents will be retained in the Court's file under seal marked [TRANSLATION] "confidential" until the conclusion of the instant proceeding, or until the Court decides otherwise.
[192] The whole without costs on the motion, in view of the special circumstances of the case.
OTTAWA, ONTARIO
February 12, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-2834-96
STYLE OF CAUSE: ATTORNEY GENERAL OF QUEBEC
- and -
HER MAJESTY THE QUEEN in right of Canada
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: January 10 and 11, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: February 12, 2001
APPEARANCES:
Luc Chamberland FOR THE PLAINTIFF
René Leblanc FOR THE DEFENDANT
Vincent Veilleux
SOLICITORS OF RECORD:
Saint-Laurent, [1965] S.C.R. 73">Gagnon FOR THE PLAINTIFF
Québec, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
* French reads "Budget des contrôles financiers" - TR.
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