Date: 20001011
Docket: T-1571-00
B E T W E E N:
CANADIAN HUMAN RIGHTS COMMISSION
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
Applicants
- and -
GOVERNMENT OF THE NORTHWEST TERRITORIES
Respondent
Docket: T-923-00
B E T W E E N:
GOVERNMENT OF THE NORTHWEST TERRITORIES
Applicant
- and -
PUBLIC SERVICE ALLIANCE OF CANADA
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDERS
MacKAY J.
[1] These are two applications arising from proceedings of a Canadian Human Rights Tribunal that are still on-going, concerned with a complaint against the Government of the Northwest Territories ("GNWT"), filed by the Public Service Alliance of Canada ("PSAC"). The complaint alleged that the government, as employer, discriminated in classification and pay of employees in female-dominated groups when related to male-dominated groups, in violation of ss. 7, 10 and 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended.
[2] The applications were heard together on September 7 and 8 in Ottawa. The first, ordered by Prothonotary Roza Aronovitch to be heard first, in Court file T-1571-00, is a motion brought jointly by the applicants, PSAC and the Canadian Human Rights Commission ("CHRC"), which is also a party in the proceedings of the Tribunal. This is an application pursuant to s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 as amended, (the "CEA") for an order dismissing an objection by the GNWT to the disclosure of certain documents on grounds of executive privilege, considered by all parties in these proceedings as a claim to public interest immunity. Further, the applicants seek an order for disclosure of the documents in issue.
[3] The second application is one for judicial review brought by the GNWT for review of a decision by the Tribunal, made on May 19, 2000, in relation to issues arising in continuing production of documents, in this case a ruling that the GNWT produce to the Tribunal, for its inspection, copies of 20 documents for which the GNWT claimed executive privilege. Those are the documents subject to the objection at issue in the application in file T-1571-00, an application brought with a view to expediting the process of the Tribunal. It is the ruling by the Tribunal that is questioned in the application by the GNWT for judicial review in file T-923-00.
[4] Before dealing with the motions in turn, I set out some of the background common to both.
The Background
[5] The complaint by PSAC which is under consideration before the Tribunal was filed in March 1989. At issue before the Tribunal is whether the employer has established or maintained differences in wages between female and male employees engaged in work of equal value. Job evaluation and classification systems applied in years leading up to the complaint and since, for the period March 1988 to March 1998 for which a remedy is sought, are said to be matters for investigation by the Tribunal.
[6] In accord with the Tribunal's procedures the parties were required to produce lists of documents relevant to the matters in issue, including documents which the producing party considered to be subject to a claim of privilege. Document disclosure is on-going with further lists produced during the summer months in 2000 when the Tribunal's hearings have been in recess. In lists it produced prior to May 2000 the GNWT had claimed some 4000 documents as privileged on various grounds. Discussions between the parties ultimately reduced the numbers to some 23; and in the motion now before me there are 20 of those documents at issue for which the GNWT claims that they are privileged from disclosure by public interest immunity. Document lists produced after May 2000 contain additional claims for immunity, not yet considered by the Tribunal and not in issue here.
[7] CHRC and PSAC moved jointly before the Tribunal to challenge the remaining 20 claims for privilege on grounds of public interest immunity. They sought an order from the Tribunal that the 20 documents in issue be disclosed. In response to their motion, the GNWT filed two affidavits dated April 24, 2000, of Gerald Lewis Voytilla, Secretary to the Financial Management Board and Comptroller General for the GNWT, in support of its claims to executive privilege or public interest immunity. On May 19, 2000, the Tribunal ruled that the GNWT shall provide the documents in issue to the Tribunal so that it could inspect the documents and determine whether the claim for public interest immunity should be upheld. In making that ruling the Tribunal found the affidavits of Mr. Voytilla, for the GNWT, were insufficient to enable it to determine whether the claimed immunity should be recognized. The ruling led to the application by the GNWT for judicial review in Court file T-923-00, and subsequently to the joint motion pursuant to s. 37 of the Canada Evidence Act ("CEA") by CHRC and PSAC that the objection to disclosure by GNWT be dismissed in Court file T-1571-00. I note that the Tribunal's original Order was subsequently varied twice, postponing the date for disclosure to it to October 7, 2000.
The application under s. 37 of the Canada Evidence Act (T-1571-00)
[8] I note two other factors the parties raised for consideration in relation to this motion. The applicants urge that the documents here in issue must be scrutinized closely to ensure they are not simply relevant to allegations by the GNWT of bad faith conduct on the part of PSAC or to the timing of the GNWT's knowledge of the perceived discriminatory impact of its job classification plans and pay practices.
[9] For GNWT it is urged that a factor to be borne in mind in any review of the documents is the significance to it of anticipated costs it will be required to defray if PSAC's complaint is ultimately upheld, costs which GNWT estimates at $150 million or half of its annual operating budget. That factor, it is said, explains why the complaint and the matters of job classification and rates of pay continue to be of ongoing concern and discussion within the cabinet and senior government levels since before 1989. That explanation is interesting but I agree with the applicants, PSAC and CHRC, that any speculation about the costs the GNWT may ultimately face, and the possible impact of those costs on government operations and government supported programs, are not relevant to the issues to be resolved in this application under s. 37 of the CEA. Whatever those costs may ultimately be, costs alone cannot constitute a basis for determining whether or not the matter is one of such public interest that immunity from disclosure should apply.
[10] Jurisprudence in this Court in dealing with objections to claims of public interest immunity pursuant to s. 37 of the CEA has established a two stage procedure1, the first directed to the issue whether the Court should examine the documents claimed as privileged under public interest immunity, and if the Court determines that issue in the affirmative, it then reviews the information claimed as privileged and hears further submissions concerning the balancing of public interests at stake, before determining whether any, and if so what, of the information in question should be produced. In those cases the party claiming immunity has opposed the Court's examination of the documents at the first stage, and if the Court should determine to examine the documents, that party has also opposed release of any document.
[11] In this case when the matter was heard counsel for the GNWT clearly affirmed that his client did not oppose this Court's examination of the documents. The GNWT perceived its responsibility was to claim the immunity, and if that claim, when contested before the Court, was not accepted, so be it.
[12] The GNWT did ask that if the Court did not accept the claim to immunity for any document, the matter should be returned to the Tribunal for consideration of other possible claims to privilege in relation to some or all of the documents. That request was opposed by PSAC and CHRC since other possible claims to privilege were not formally advanced, until other claims were referred to in the affidavit of Mr. Voytilla sworn April 24, 2000, opposing disclosure. Consideration of other possible bases of privilege for the documents in issue, it is suggested, might not be welcomed by the Tribunal which in its decision of May 19, 2000 commented, inter alia:
| . . . we should note that the Government has attempted to introduce new heads of privilege, in objecting to the production of the documents. Although we are not prepared to entertain new claims of privilege, in the absence of exceptional circumstances, it seems inevitable that the different heads of privilege tend to merge in the context of cabinet documents.2 |
. . .
| In our view it would be a mistake, in a process characterized by fairness, to place too much emphasis on the species of protection that the Government is claiming. The present claim of immunity rests on the principle that the confidentiality of cabinet documents protects and facilitates the inner workings of government. It is apparent, however, that the kind of considerations that apply in the instance of other claims of privilege may provide additional reasons for extending an immunity to such documents. All of this, in our view, can be dealt with under the public interest.3 |
[13] Undoubtedly where privilege is recognized on the ground of public interest immunity, any other basis for a possible claim of privilege may be ignored, but for documents classified as privileged which are ultimately found not immune from production on grounds of public interest, other grounds for claims of privilege, it seems to me, cannot be dismissed without having been heard. I return to this matter of disposition for that information which, after examination, I determine is not protected from disclosure on grounds of public interest immunity.
[14] While the respondent GNWT does not object to the Court's examination of the documents in question, I note for the record that on the basis of the evidence in the public record, constituted by affidavits of Gerald Lewis Voytilla, on behalf of the GNWT, one sworn April 24, 2000, a Supplementary Affidavit sworn on April 28, 2000 and Affidavit No. 1 sworn on August 24, 2000 in responding to the motion of the applicants in this Court, I am not persuaded that the claim to public interest immunity can be upheld without examination of the documents in question. The two affidavits of April 24, which the Tribunal found insufficient to establish a basis of immunity, essentially describe the GNWT and its operations as akin to provincial governments for purposes of establishing a basis for a claim to public interest immunity, and set out that claim with respect to each of the documents, which are described, and the importance of not producing the information if the necessary flow of candid information for Cabinet government is not to be threatened.
[15] The first of the affidavits includes the opinion of the affiant, a senior public servant of the respondent government, that it would be against the public interest if these documents relating to the process of providing Ministers and the Executive Council with candid advice on matters of high level policy, were to be subject to disclosure. Public disclosure would adversely affect the inner workings of government, so it is said. The background of government operations within the GNWT, policy considerations arising from PSAC's complaint including implications of costs estimated at up to $150,000,000. if the complaint be upheld, and the possible effects of such costs on public finance in the Northwest Territories, are dealt with in Affidavit No. 1 of August 24, 2000, and the first part of Affidavit No. 2 of the same date. The affidavits do not specify the public interests at stake, other than a perception of the importance of non-disclosure in matters concerning personnel policy, collective bargaining, job classification, pay rates and pay equity in light of the on-going inquiry into PSAC's complaint and successive rounds of collective bargaining since the complaint was filed.
[16] The two affidavits of April also briefly describe the documents at issue, but in a generic way, identifying their relevance by general reference to their content, without specifics, and their general purposes, without reference to the public interest that would be affected by their disclosure or to particular prejudice to the GNWT that might be caused, aside from an implied harm in disclosure of documents used for high level government planning or policy in relation to such matters. For example, a document identified as Row 226, No. 31435 is described in part thus,
| 38. This document is a letter of December 8, 1987 from J.A. Heron, Deputy Minister, Personnel, to the Honourable Gordon Wray, Minister, Personnel. |
| 39. This document appears to be a report prepared in response to a request by the Minister for a status report on the Territorial classification system and would, in the normal course, be used in the formulation of government strategy and policy. |
| 40. The issue of equal pay is specifically addressed therein. |
| 41. The Government claims public interest immunity and litigation privilege over this document. |
[17] Those affidavits, except for each document's description, deal with the documents, as a class, prepared for consideration of government at the highest levels. The descriptions of individual documents are in general terms, except for the statements that they deal with certain relevant matters, such as classification systems, equal pay, or collective bargaining. No other public interest is identified. The general public interest in maintenance of confidential documents for efficient working of Cabinet government, without some other identified public interest, does not outweigh the public interest in the administration of justice, here involved in the Tribunal's inquiry into a major complaint of unlawful discriminatory treatment of certain employees.
[18] There is no blanket claim to immunity for a class of documents like those here described, and no evidence is adduced of a particular prejudice by release of any document here in question ([1982] 2 S.C.R. 686">Smallwood v. Sparling, [1982] 2 S.C.R. 686 at 707-708). Both those limitations on a claim of public interest immunity and others are affirmed by Mr. Justice La Forest, speaking for the Supreme Court of Canada in Carey v. Ontario4, a case which all parties to this application accept as establishing the principles for assessing a claim of public interest immunity. Interestingly, the case was concerned with immunity for Cabinet documents claimed by the Government of Ontario on grounds of public interest, under the common law, not a proceeding pursuant to s. 37 of the Canada Evidence Act.
[19] In Carey, La Forest J. affirmed5:
| - that Cabinet documents like other evidence must be disclosed unless disclosure would interfere with the public interest; |
| - that in assessing whether such documents should be ordered to be produced the Court should proceed cautiously, considering the level of the decision-making process concerned, the nature of the policy involved, the particular content of the documents and the time when a document or information is to be revealed in relation to the level of public interest which might seriously inhibit proper functioning of Cabinet government, and that this assessment must be weighed with the importance of producing the documents in the interests of the administration of justice in the case at hand, in particular in light of the public interest in ensuring a claim is fully and fairly presented. |
[20] In that case, his lordship further commented that the significance of the government policy dealt with in the documents is to be considered, and finally that "a court is empowered to reveal only so much of the relevant documents as it feels it is necessary or expedient to do following an inspection".
[21] That description of the Court's role in dealing with an objection to disclosure of government information, including its responsibility to reveal any portion of relevant documents considered appropriate after an inspection, in my opinion is reflected in s. 37 of the Canada Evidence Act which provides, in part:
| Objection to disclosure of information
37(1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
Where objection made to superior court
(2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.
Where objection not made to superior court
(3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by
(a) the Federal Court-Trial Division, in the case of a person or body vested with power to compel production by or pursuant to an Act of Parliament if the person or body is not a court established under a law of a province; or
(b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.
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Opposition à divulgation
37. (1) Un ministre fédéral ou toute autre personne intéressée peut s'opposer à la divulgation de renseignements devant un tribunal, un organisme ou une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que ces renseignements ne devraient pas être divulgués pour des raisons d'intérêt public déterminées.
Opposition devant une cour supérieure
(2) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant une cour supérieure, celle-ci peut prendre connaissance des renseignements et ordonner leur divulgation, sous réserve des restrictions ou conditions qu'elle estime indiquées, si elle conclut qu'en l'espèce, les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public invoquées lors de l'attestation.
Opposition devant une autre instance
(3) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant le tribunal, un organisme ou une personne qui ne constituent pas une cour supérieure, la question peut être décidée conformément au paragraphe (2), sur demande, par :
a) la Section de première instance de la Cour fédérale, dans les cas où l'organisme ou la personne investis du pouvoir de contraindre à la production de renseignements en vertu d'une loi fédérale ne constituent pas un tribunal régi par le droit d'une province;
b) la division ou cour de première instance de la cour supérieure de la province dans le ressort de laquelle le tribunal, l'organisme ou la personne ont compétence, dans les autres cas.
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[22] The section deals with government information, not specifically with documents, and in my view, the documents identified as relevant by the GNWT in this case are to be released except where information contained in them is privileged by an identified public interest other than that in maintaining Cabinet level documents as confidential.
[23] In weighing the public interests at issue in the question of disclosure of the questioned documents, the interests espoused by the GNWT in planning for collective bargaining and related matters must be weighed against the important public interest in the administration of justice, here in the conduct of an inquiry by the Tribunal in regard to a complaint of failure to meet requirements under the Canadian Human Rights Act for equal pay for work of equal value among women and men employees, a requirement established by Parliament consistent with equality rights guaranteed by the Charter of Rights and Freedoms.
[24] Here the public interest identified by the GNWT is in effective collective bargaining with public sector employees' unions, and with related matters affecting employees' interests, such as job classification systems. I concede the necessity to protect from disclosure the strategy and planning for matters within the normal scope of collective bargaining when bargaining is in the offing or is underway, but public interest immunity in that information, without some greater explanation or evidence of prejudice, would not extend beyond conclusion of a collective agreement, unless the information concerns an ongoing matter of difference that is likely to be the subject of bargaining in a future round. A report on matters that have been agreed upon in the bargaining could hardly qualify as privileged on grounds of public interest some months or years after the agreement reported upon is in effect, in my opinion. The public interest in information generally concerning collective bargaining or job classification systems, unless it be perceived as dealing with specifics of current or upcoming bargaining or as admissions against interest at stake before the Tribunal, cannot outweigh in the balance the importance of open and fair proceedings in dealing with PSAC's complaint before the Tribunal, that is, in the administration of justice through the Tribunal's process.
[25] Yet any such information may be privileged in this case as concerned with strategy for collective bargaining within a separate privilege claim already accepted by the Tribunal. The claim for privilege in relation to collective bargaining strategy, or litigation privilege or solicitor client privilege in relation to matters before the Tribunal, for documents or portions of documents now directed to be produced to the Tribunal is to be determined by the Tribunal, after consideration, before documents or portions of them are released to the applicant CHRC and PSAC. The Tribunal's comments in its ruling of May 19, 2000, that, for the documents in issue, claims to privilege other than public interest immunity should not be considered at that stage are in effect set aside by my decision in judicial review of that decision in a related file, Court file T-923-00. The Tribunal is directed to consider the claims to privilege advanced by GNWT, other than public interest immunity, in relation to the documents in issue.
[26] An Order issued on October 2, 2000, in effect allowing the application in relation to much of the information in the documents which the GNWT claimed as privileged on grounds of public interest immunity. Most of that information is ordered to be produced, except for portions specified by the Court in the Order as privileged from production on grounds of public interest. The documents with the specified exceptions excised from them are to be produced to the Tribunal for its consideration of any other claim of privilege, in particular as set out in the affidavit sworn April 24, 2000, by Mr. Voytilla.
[27] I note that as a general principle where documents are produced in relation to litigation, there is an implied undertaking by counsel and the parties that it is for use in the litigation in relation to which it is produced. In this case the Order issued sets that implied undertaking as a condition of production of the information here in issue.
[28] I turn to the application of the GNWT for judicial review and an order setting aside the decision or ruling of the Tribunal made May 19, 2000.
The application for Judicial Review (T-923-00)
[29] When the application for judicial review of the Tribunal's decision came on for hearing PSAC and the CHRC raised as a preliminary matter that the application ought to be dismissed on the ground that it was premature, dealing with an interlocutory ruling on evidentiary issues by the Tribunal. As respondents to the motion for judicial review they relied upon the recent decision of the Court of Appeal in Citron v. Zundel where Mr. Justice Sexton, speaking for the Court, reaffirmed a well-established principle in the following terms:
| . . . as a general rule, absent jurisdictional issues, rulings made during the course of a tribunal proceeding should not be challenged until the Tribunal's proceedings have been completed. The rationale for this rule is that such application for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. . . .As this Court held in Re Anti-Dumping Act, "a right vested in a party who is reluctant to have the Tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a Tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the Tribunal.6 |
Further, his lordship commented, in relation to evidentiary rulings:
| . . .such rulings are made constantly by trial courts and tribunals and if interlocutory appeals were allowed from such rulings, justice could be delayed indefinitely.7 |
That principle was also followed by my colleague Mr. Justice Pelletier in Bell Canada v. Canadian Telephone Employees' Association8and by my colleague Mr. Justice Campbell in dismissing three other applications for judicial review filed by GNWT9in regard to the proceedings before the Tribunal.
[30] In none of these cases, relied on to urge dismissal of the application for judicial review, were the courts concerned dealing with objections raised to the disclosure of government information, a matter specifically provided for under ss. 37 to 39 of the CEA. Section 37 specifically provides a process for dealing with objections to production of federal government information on grounds of public interest.
[31] In my opinion, the circumstances raised before the Tribunal by the objection of the GNWT to disclosure of the documents here in issue are specifically covered by s. 37 and the procedure for dealing with that objection is set out in s-ss. (2) and (3). Paragraph (a) of s-s. (3) deals with an objection raised before a body, such as the Tribunal, which is a "body vested with power to compel production by or pursuant to an Act of Parliament" and which is not a court established under the law of a province, or a superior court.
[32] PSAC and the CHRC argue that amendments in 1988 to the Canadian Human Rights Act authorize a Tribunal to act as a superior court and determine objections under s. 37 of the CEA. They refer in particular to section 50, which provide in part:
Power to determine questions of law or fact
50. (2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.
Question de droit de fait
50. (2) Il tranche les questions de droit et les questions de fait dans les affaires dont il est saisi en vertu de la présente partie.
Additional powers
(3) In relation to a hearing of the inquiry, the member or panel may
(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;
(b) administer oaths;
(c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that
evidence or information is or would be admissible in a court of law;
(d) lengthen or shorten any time limit established by the rules of procedure; and
(e) decide any procedural or evidentiary question arising during the hearing.
Limitation in relation to evidence
(4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
Pouvoirs
(3) Pour la tenue de ses audiences, le membre instructeur a le pouvoir :
a) d'assigner et de contraindre les témoins à comparaître, à déposer verbalement ou par écrit sous la foi du serment et à produire les pièces qu'il juge indispensables à l'examen complet de la plainte, au même titre qu'une cour supérieure d'archives;
b) de faire prêter serment;
c) de recevoir, sous réserve des paragraphes (4) et (5), des éléments de preuve ou des renseignements par déclaration verbale ou écrite sous serment ou par tout autre moyen qu'il estime indiqué, indépendamment de leur admissibilité devant un tribunal judiciaire;
d) de modifier les délais prévus par les règles de pratique;
e) de trancher toute question de procédure ou de preuve.
Restriction
(4) Il ne peut admettre en preuve les éléments qui, dans le droit de la preuve, sont confidentiels devant les tribunaux judiciaires.
[33] They urge that these provisions provide that a Human Rights Tribunal may determine all questions of law necessary to determine the matter before it, including determination of objections raised under public interest immunity claims, that is, the Tribunal may determine the objections in the same manner as a superior court of record, just as it may decide any procedural or evidentiary question arising during a hearing.
[34] In my opinion, the Tribunal's powers to deal with evidence and to order production of documents as set out in s. 50 of the Canadian Human Rights Act, or s-s. 48.9(2) which authorizes the making of rules of procedure governing discoveries, simply qualifies the Tribunal within s-s. 37(3)(a) of the CEA, as a "body vested with power to compel production by or pursuant to an Act of Parliament".
[35] In my view, while these amendments clarify the role of a tribunal in dealing with evidentiary matters and the amendments were enacted later than the CEA provision, s. 37, the latter deals specifically with objections to disclosure of government information, and limits the role of a federal tribunal in dealing with objections to disclosure of federal government information. In my opinion, in the case of objections to disclosure of information by the federal government or its agencies, in which I would include the Government of the Northwest Territories which acts pursuant to federal statutes, the general provisions of the Human Rights Act do not, in my opinion, create an exception to the application of ss. 37 to 39 of the CEA. When the objection was here raised by the GNWT with the Tribunal the latter had no authority, in my view, but to leave to the determination of this Court whether the objection on grounds of public interest immunity should be respected.
[36] In my view, that interpretation is consistent with the application of s. 58 of the Human Rights Act, as provided by the 1998 amendment which provides as follows:
| Application respecting disclosure of information
58. (1) If an investigator or a member or panel of the Tribunal requires the disclosure of any information and a minister of the Crown or any other interested person objects to its disclosure, the Commission may apply to the Federal Court for a determination of the matter.
Certificate
(2) Where the Commission applies to the Federal Court pursuant to subsection (1) and the minister of the Crown or other person interested objects to the disclosure in accordance with sections 37 to 39 of the Canada Evidence Act, the matter shall be determined in accordance with the terms of those sections.
No certificate
(3) Where the Commission applies to the Federal Court pursuant to subsection (1) but the minister of the Crown or other person interested does not within ninety days thereafter object to the disclosure in accordance with sections 37 to 39 of the Canada Evidence Act, the Court may take such action as it deems appropriate.
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| Divulgation de renseignements
58. (1) Dans les cas où un ministre fédéral ou une autre personne intéressée s'opposent à la divulgation de renseignements demandée par l'enquêteur ou le membre instructeur, la Commission peut demander à la Cour fédérale de statuer sur la question.
Opposition
(2) Dans le cas où le ministre ou l'autre personne intéressée se prévalent du droit d'opposition à la divulgation, prévu aux articles 37 à 39 de la Loi sur la preuve au Canada, la Cour fédérale statue sur la demande prévue au paragraphe (1) conformément à ces articles.
Absence d'opposition
(3) Dans les cas où le ministre ou l'autre personne intéressée ne se prévalent pas du droit d'opposition à la divulgation, prévu aux articles 37 à 39 de la Loi sur la preuve au Canada, dans les quatre-vingt-dix jours suivant la demande, la Cour fédérale prend les mesures qu'elle juge indiquées.
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[37] These provisions authorize the CHRC to apply to this Court for a determination of an objection to disclosure of government information. That may be done when an investigator, or a member or panel of the Tribunal seeks disclosure of information and is refused. I agree with the tribunal that the section was not engaged at the time it considered the objection in this case since at that stage the Commission had not made application to this Court. It has since done so, in a joint application with PSAC, dealt with earlier in these Reasons in relation to Court file T-1571-00.
[38] In the result, in my opinion, the application for judicial review in this case, initiated by the GNWT, in relation to the Tribunal's ruling in regard to GNWT's objections to disclosure of information can hardly be considered as premature at the time the application was filed. It did not subsequently become premature by reason of the later application by the other parties for a determination concerning the objection to disclosure. While it might have been open for the GNWT to have raised the issue of its objections in an application to this Court, that in itself would not necessarily set aside all aspects of the decision by the Tribunal, for example, its determination that at that stage it would not consider other possible grounds of immunity, and that it was authorized by statute to determine whether or not the objection of the GNWT should be upheld.
[39] The application for judicial review does permit the setting aside of the entire decision by the Tribunal, a preferred result in this case. Thus, I am not persuaded that the application should be dismissed on the ground it was premature.
[40] Further, I am persuaded that the application should be allowed on its merits. Thus, I allow the application for judicial review, for I find that the Tribunal erred in law in its determination that it has authority to determine objections to production of government information on grounds of public interest immunity when claimed by the federal government or one of its agencies. An objection of that sort is to be dealt with pursuant to ss. 37 to 39 of the CEA, as I interpret those provisions and provisions of the Human Rights Act to which the respondents, PSAC and CHRC, refer.
Conclusion
[41] For the reasons set out, I allowed the application by the GNWT for judicial review in Court file T-923-00. An Order issued setting aside the ruling of the Tribunal dated May 19, 2000.
[42] I also allowed, in substantial part, the application of PSAC and the CHRC, in Court file T-1571-00, in relation to the objection by the GNWT, on grounds of public interest immunity, to disclosure of the information in the documents in question, so that those documents with exceptions specified by the Court's Order are to be produced to the Tribunal. The Order issued directs the Tribunal to consider any other ground of privilege claimed by the GNWT in relation to the documents, and to release to the parties the documents it finds are not subject to the privileges claimed.
[43] Separate Orders were issued for files T-923-00 and T-1571-00, respectively. Since these Reasons deal with both applications I direct that a copy of the Reasons be filed on both files.
(signed)W. Andrew MacKay
JUDGE
OTTAWA, Ontario
October 11, 2000.
__________________
1 See Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.) aff'd [1983], 2 F.C. 463 (C.A.) and see Khan v. Canada, [1996] 2 F.C. 316 (T.D.) at para. 28 where Rothstein J. summarizes jurisprudence of this Court.
2 Decision: Ruling on the Respondent's Claim of Immunity, Canadian Human Rights Tribunal, Ruling No. 7, 2000/05/19, at p. 6. (Applicant's Record, Tab 10, p. 85).
3 Id., at pp. 6-7. (Applicant's Record, Tab 10, pp. 85-86).
4 [1986] 2 S.C.R. 637 at 670-672.
5 Id., at pp. 670-671.
6 May 18, 2000, Court file Nos: A-258-99 and A-269-99 (F.C.A.), at para. 10.
7 Id., at para. 15.
8 June 20, 2000, Court file T-756-00 (F.C.T.D.).
9 Government of the Northwest Territories v. Public Service Alliance of Canada and the Canadian Human Rights Commission, June 7, 2000, Court File Nos.: T-621-99, T-814-99, and T-977-99 (F.C.T.D.).
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