Canada (Information Commissioner) v. Canada (Minister of The Environment), docket T-1125-99

Date: 19991115

Docket: T-1125-99

OTTAWA, ONTARIO, THE 15th DAY OF NOVEMBER 1999

PRESENT:      THE CHIEF JUSTICE

BETWEEN:

     THE INFORMATION COMMISSIONER OF CANADA

     Applicant

     - and -

     THE MINISTER OF ENVIRONMENT CANADA and

ETHYL CANADA INC.

     Respondent

    

- and -

ETHYL CANADA INC.

Added Respondent

     ORDER

     UPON motion on behalf of the respondent, the Minister of Environment Canada for:

(a)      an order directing the applicant to return to the respondent, or alternatively prohibiting the applicant from introducing onto the public record, a document protected by section 39 of the Canada Evidence Act which was mistakenly disclosed to the applicant during the course of his investigation into the complaint which underlies this proceeding;

(b)      an order prohibiting the applicant from filing with the Court and using any documents obtained from the respondent during the course of his investigation that are subject to solicitor-client privilege;

(c)      an order pursuant to rules 151 and 152 of the Federal Court Rules, 1998 that all documents obtained by the applicant during the course of his investigation into the complaint which underlies this proceeding be treated as confidential;

     AND UPON hearing the applicant and the added respondent, Ethyl Canada Inc.;

     IT IS ORDERED THAT:

1.      The applicant shall not file or use in this proceeding the original or any copy of the document entitled "Schedule of Excludable documents" and that the applicant return to the respondent, the Minister of Environment Canada, the original and all copies of the above document.

2.      The documents described and listed in Exhibit "D" of Katharine MacCormick"s affidavit dated September 24, 1999 for which solicitor-client privilege has been asserted, be filed and treated as confidential in accordance with Rules 151 and 152 of the Federal Court Rules, 1998 , subject to any order to be made by the judge hearing the application.

3.      All remaining documents referred to as Exhibits "B" and "D" in the affidavit of George Sluzar (no. 3) dated October 4, 1999, which are not subject to the above confidentiality order, be filed on the public record.

4.      On consent, all material referred to as Exhibits "A" and "C" in the affidavit of George Sluzar (no. 3) dated October 4, 1999 be filed on the public record.

5.      The added respondent, Ethyl Canada Inc., serve and file affidavits and documentary exhibits within 30 days of the date of this order and subsequently follow the timetable applicable to the applicant under the Federal Court Rules, 1998.

6.      The respondent serve and file affidavits and documentary exhibits within 30 days after service of the added respondent"s affidavits and documentary exhibits.

7.      All subsequent steps in this proceeding follow the timetable and the procedure set out in the Federal Court Rules, 1998.

8.      Counsel for the added respondent be given access to the confidential material for the purposes of this application upon filing a written undertaking in accordance with the provisions of rule 152(2) of the Federal Court Rules, 1998.

     ____________________________

                                     Chief Justice

Date: 19991115

Docket: T-1125-99

BETWEEN:

     THE INFORMATION COMMISSIONER OF CANADA

     Applicant

     - and -

     THE MINISTER OF ENVIRONMENT CANADA

     Respondent

     - and -

     ETHYL CANADA INC.

     Added Respondent

    

     REASONS FOR ORDER

RICHARD C.J.:

---

BACKGROUND

On September 13, 1999, the applicant brought a motion for an order pursuant to section 47 of the Access to Information Act1 and to Rules 54, 151, 152 and 384 of the Federal Court Rules, 19982, for directions with respect to the hearing of an application made pursuant to the provisions of paragraph 42(1)(a) of the Access to Information Act, and more particularly:      1.      to amend the style of cause to include Ethyl Canada Inc. as an added party to these proceedings;

2.      to determine whether there is confidential material to be filed by the applicant or the respondent, pursuant to Rules 151 and 152;

3.      to determine whether counsel for the added party, Ethyl Canada Inc., may have access to the confidential material, if there is any;

4.      to give directions, pursuant to Rules 54 and 384, with respect to the procedures to be followed by the parties until hearing of the application for review under section 42 of the Access to Information Act.

The motion adds that the following matters should be discussed during the hearing for directions:      -      Who are the necessary and proper parties to the application? Do they have notice of the application?

-      Have the applicant and the respondent complied with applicable statutory notice provisions (i.e., subsections 43(1) and 44(2) of the Access to Information Act and rule 304(3))?

-      What interveners, if any, are anticipated?

-      What issues are involved in the application?

                    

-      What issues, if any, are likely to be resolved before the hearing?

-      What directions concerning confidential material are required (rules 151 and 152)?

-      What directions concerning reply affidavit and cross-examination on affidavits are required (rule 312)?

-      Whether the case should be specially manage under rule 384?

-      How much time is required by each party to prepare the case for a hearing on the merits?

In response, the respondent filed a motion record on the applicant"s motion for directions and submitted that the Court should limit itself to making the following order:      (a)      amending the style of cause to include Ethyl Canada Inc. as an added party;

(b)      providing that Ethyl Canada Inc. is to meet the deadlines applicable to the applicant; and

(c)      setting the time for service and filing of affidavits by the applicant and Ethyl Canada Inc.

The respondent submitted that the applicant"s motion should be otherwise dismissed on the grounds that:      (a)      this is not a proceeding that needs to be specially managed or that merits a special timetable;

(b)      the request for leave to file reply affidavit evidence is premature;

(c)      the proposed directions as to the conduct of any cross-examination that might be conducted on any affidavits that might be filed are premature and unnecessary; and

(d)      there is no compelling reason to give this case priority by setting a date for hearing in advance of the perfection of the application.

On September 27, 1999, the respondent brought a motion for:      (a)      an order directing the applicant to return to the respondent, or alternatively prohibiting the applicant from introducing onto the public record, a document protected by section 39 of the Canada Evidence Act3 which was mistakenly disclosed to the applicant during the course of his investigation into the complaint which underlies this proceeding;

(b)      an order prohibiting the applicant from filing with the Court and using any documents obtained from the respondent during the course of his investigation that are subject to solicitor-client privilege;

(c)      an order pursuant to rules 151 and 152 of the Federal Court Rules, 1998 that all documents obtained by the applicant during the course of his investigation into the complaint which underlies this proceeding be treated as confidential; and

(d)      such further and other relief as to this Honourable Court seems just.

In response, the applicant filed a motion record and submitted that:      1)      the respondent"s motion should be dismissed;

2)      the confidential issue should be dealt with under the Information Commissioner"s motion for directions as follows:

(a)      the Schedule of excludable documents shall be filed on the public record unless the respondent establishes otherwise;

(b)      the records under the control of a government institution claimed to be subject to solicitor-client privilege shall be filed in confidence in accordance with section 47 of the Access to Information Act; and

(c)      all other material contained in nine (9) volumes should be filed on the public record.

Ethyl Canada Inc. also filed a motion record on the applicant"s motion for directions and the respondent"s motion on documents. It submitted that the Court should make an order:      (a)      confirming that Ethyl Canada Inc. is to be included in the style of cause as an added party;

(b)      giving directions, pursuant to rules 3, 54 and 384, with respect to the procedures and schedule to be followed by the parties until the hearing of the application for review under section 42 of the Access Act;

(c)      dismissing the respondent"s motion for a confidentiality order, or in the alternative, identifying the specific documents to be treated as confidential in these proceedings and if necessary determining appropriate conditions with respect to access to that confidential material.

These motions first came before me on October 5, 1999 and were adjourned for completion of oral argument to October 12, 1999. Following the hearing on October 12, 1999, the parties were granted further time to file additional written submissions on the issue of confidentiality.

The Court received further written submission from the parties by October 22, 1999.

This all arises out of an application for judicial review under paragraph 42(1)(a) of the Access to Information Act.

The Notice of Application dated July 6, 1999 states:      This application is made with the consent of the requester, Josephina D. Erzetic, who made the access request on behalf of Ethyl Canada Inc., and with the consent of Ethyl Canada Inc., after a report dated May 26, 1999 of the results of the investigation of a complaint (3100-10904/001) by the Information Commissioner of Canada with respect to the refusal by the Minister of Environment Canada (the "head of the government institution") to disclose records requested by Josephina D. Erzetic on behalf of Ethyl Canada, by access request dated September 16, 1997 with respect to:

Discussion Papers, the purpose of which is to present background explanations, analyses of problems or policy options to the Queen"s Privy Council for Canada for consideration by the Queen"s Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Manganese Tricarbonyl (MMT).

The applicant makes an application for:

     an order directing that the records or portions of records, relating to MMT which contain background explanations, analysis of problems or policy options presented to Council for consideration by Council in making decisions, be disclosed to the requester, or such further and other order as the Court deems appropriate.

The grounds for the application are:

1.      The respondent erred in relying upon paragraphs 69(1)(a) and 69(1)(e) of the Act to refuse to disclose the requested records.

2.      The respondent has the burden of establishing in fact and in law before the Federal Court that the withheld records are excluded from the application of the Act.

A notice to the requester accompanied the notice of application. It reads as follows:      NOTICE TO THE REQUESTER

     (Subsection 42(2) of the Access to Information Act)

TO:      Ms. Josephina D. Erzetic              Ethyl Canada Inc.

Genest Murray DesBrisay Lamek          101-5045 South Service Road

Barristers & Solicitors              Burlington ON

130 Adelaide Street West, Suite 700          L7L 6M9

     Toronto ON M5H 4C1

Take notice that the Information Commissioner of Canada has made an application for review pursuant to paragraph 42(1)(a) of the Access to Information Act. Paragraph 42(2) of the Act gives Ethyl Canada Inc. the right to appear as a party to the review of the refusal of the Minister of Environment Canada to disclose records you requested on behalf of your client under this Act. If Ethyl Canada Inc. wishes to appear as a party to the review, it must prepare a notice of appearance as a party to the review and serve it on the applicant"s solicitor, Mr. Daniel Brunet, and to the respondent within 10 days after being served with this notice of application, in order to permit the Information Commissioner to take it into account in the preparation of his Notice of Motion for Directions that will be made by the Information Commissioner to be heard by way of personal appearance before a Judge of the Federal Court (Trial Division) at 9 h 30 a.m. on Thursday, August 5, 1999 at the Federal Court at Ottawa.

On July 14, 1999, Ethyl Canada Inc. filed a notice of appearance as a party, as it was entitled to under the Act. Neither the applicant or the respondent object to Ethyl Canada Inc. being added as a party to the application.

The applicant"s affidavit in support of the application was filed on September 13, 1999. No further steps have been taken by the parties.

NATURE OF THE PROCEEDING

Part 5 of the Federal Court Rules, 1998, governs all proceedings brought by way of application. Pursuant to rule 61(2), any proceeding referred to in rule 300 must be brought as an application.

Proceedings under section 42 of the Access to Information Act are referred to in rule 300(b) and are therefore governed by Part 5 of the Rules.

Rules 304 to 314 specifically set out the time frame for each procedural step in an application. This is intended to ensure that the application is heard and determined in an expeditious and summary manner while respecting procedural fairness for all parties.

Rules 151 and 152 which deal with the confidentiality of material and with access to confidential material apply to applications governed by Part 5 of the Rules.

Since these rules provide a framework for all applications, including those under section 42 of the Access to Information Act, the Practice Direction from the Court dated December 2, 1993 governing applications under the Access to Information Act and Privacy Act, is no longer applicable. Accordingly, there is no need to bring a motion for directions.

A party who wishes to vary the requirements of rules 304 to 314 or to obtain leave to take additional steps under the provisions of rule 312, may do so by bringing a motion, by personal appearance, at any general sitting of the Court or without personal appearance, under the provisions of rule 369.

The assignment of the time and place of a hearing is made by the Associate Chief Justice or by the Judicial Administrator (Trial Division), in accordance with any instructions given by the Associate Chief Justice.

Rule 384 of the Federal Court Rules, 1998, provides that a party to a proceeding may at any time bring a motion to have the proceeding managed as a specially managed proceeding. Given that the Part 5 rules themselves set out a timetable to move an application through the system quickly, such a request should not be made routinely and there must be a substantial reason justifying that proceeding being removed from the timetable set out in Part 5.

The addition of the requester as a party to the proceedings is a non-controversial procedure since subsection 42(2) of the Access to Information Act gives such person the right to appear as a party to the application. It should normally be done by a written motion, on consent, to add the requester as a respondent in the application. The draft order should provide firstly, that the style of cause is amended by adding the requester as an added respondent and, secondly, that the added party serve and file its material in the same manner as is provided by the rules for the applicant.

A motion for the filing of confidential material can be dealt with in writing and without personal appearance if it is supported by an affidavit demonstrating the need for confidentiality and no party objects. Otherwise, it can be brought on for hearing at any general sitting of the Trial Division. Such sittings are held in Ottawa every Tuesday and Thursday and at Montreal, Toronto and Vancouver, every Monday.

When an order of confidentiality is made, it should be accompanied by provisions concerning the conditions under which counsel for the parties may have access to such material.

The head of a government institution, who is the respondent in the application, has the burden of establishing that the refusal to disclose is authorized. This justification will normally be made in the respondent"s material filed after the applicant has filed its material. In these circumstances, where such material is filed by the respondent, it is open to the applicant to bring a motion to file additional material under rule 313.

Finally, the parties should observe the requirements of rule 314 concerning the requisition for a hearing. An expedited hearing may be granted in exceptional circumstances.

At the hearing on October 5, 1999, counsel for the applicant amended the motion for directions to a motion to add Ethyl Canada Inc. as a respondent, which I granted without objection, and to order that the proceeding be specially managed. Given the particular circumstances and history of this proceeding, I granted an order that the proceeding be managed as a specially managed proceeding.

DOCUMENTS

There remains before me, for disposition, the respondent"s motion concerning documents. There are three categories of documents which are the subject of this motion:      1)      a document which the respondent claims is protected by section 39 of the Canada Evidence Act and which was mistakenly disclosed to the applicant during the course of his investigation into the complaint which underlies this proceeding;

2)      documents obtained by the applicant from the respondent during the course of his investigation that the respondent claims are subject to solicitor-client privilege; and,

3)      certain documents obtained by the applicant during the course of his investigation that the respondent claims should be treated as confidential under rule 151 and rule 152 of the Federal Court Rules, 1998.

These documents are not the documents sought to be accessed by the Information Commissioner in his application under section 42 of the Access to Information Act. The documents in issue on this motion are those already obtained by the Information Commissioner during the course of his investigation which he now seeks to file with the Court in support of his application.

The "Schedule of Excludable documents" provided to the Information Commissioner by the Deputy Clerk of the Privy Council on March 19, 1999.

The first order sought by the respondent on this motion is an order directing the applicant to return to the respondent a document disclosed to the applicant during the course of the Information Commissioner"s investigation.

On March 11, 1999, the Deputy Information Commissioner issued an order under paragraph 36(1)(a) of the Access to Information Act to Nicole Jauvin, Deputy Clerk of the Privy Council Office, to produce within five days:all records under the control of the Privy Council Office containing information related to Discussion Papers (DP), within the Cabinet Papers Systems over the period of January 1, 1977 to December 31, 1986 [...]

In response to the order of March 11, the Deputy Clerk of the Privy Council Office sent a letter dated March 19, 1999 stating that certain of the documents requested contained information constituting Cabinet confidences and were therefore excluded from the operation of the Access to Information Act by section 69 of that Act. The Information Commissioner was given access to the documents sought, other than Cabinet confidences.

The letter of March 19 also enclosed two lists, one of which is entitled the "Schedule of Excludable Documents" (the "Schedule"). The Schedule is essentially one document which briefly describes and lists all the documents which the Privy Council Office did not produce pursuant to the order of March 11, 1999.

On March 22, 1999, the Deputy Information Commissioner wrote to the Deputy Clerk of the Privy Council requesting that the records referred to in the Schedule be produced unless she certified these documents as constituting cabinet confidences pursuant to section 39 of the Canada Evidence Act.

Section 39 of the Canada Evidence Act states the following:

Objection relating to a confidence of the Queen's Privy Council 39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

Opposition relative à un renseignement confidentiel du Conseil privé de la Reine pour le Canada 39. (1) Le tribunal, l'organisme ou la personne qui ont le pouvoir de contraindre à la production de renseignements sont, dans les cas où un ministre ou le greffier du Conseil privé s'opposent à la divulgation d'un renseignement, tenus d'en refuser la divulgation, sans l'examiner ni tenir d'audition à son sujet, si le ministre ou le greffier attestent par écrit que le renseignement constitue un renseignement confidentiel du Conseil privé de la Reine pour le Canada.

On March 29, 1999, the Clerk of the Privy Council issued a certificate under section 39 of the Canada Evidence Act which not only covered each record referred to in the Schedule but also claimed the Schedule itself as a cabinet confidence.

By letter dated September 9, 1999, the respondent"s counsel asked the applicant to return the Schedule. This request has not been complied with.

The parties do not dispute that the section 39 certificate issued on March 29, 1999 contemplates the Schedule. The issue is whether, in these circumstances, the certificate constitutes an effective bar to the filing and use of this document in this proceeding.

Subsection 39(1) of the Canada Evidence Act creates an absolute privilege against disclosure of confidential cabinet documents described in subsection 39(2) of this Act. In the case at bar, the applicant already has the Schedule and intends to produce it on the application under the Access to Information Act. It is the applicant"s contention that he has acquired this document in the course of his investigation and as such, he cannot be prohibited from producing it to the Court.

The applicant relies on Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 (F.C.A.) to assert that section 39 of the Canada Evidence Act cannot operate so as to prevent the production of information already produced.

In the Best Cleaners case the respondent had himself provided certain documents during discovery. On the eve of the trial, the respondent filed a certificate pursuant to section 36.3 of the Canada Evidence Act (now section 39) and subsequently sought to prohibit the production of these documents in court. Mahoney J.A., concluded in that case that the certificate was not an effective bar to the receipt of the documents by the court. He stated at p. 311:On a fair reading of the section, it is the compulsion of the disclosure of the information that is protected against, not the receipt of the information in evidence if it is available otherwise than by the exercise of the tribunal"s power to compel its production.

The respondent seeks to distinguish that case by virtue of the fact that the Schedule was inadvertently provided to the applicant and that the respondent promptly requested the return of the Schedule. The respondent draws the Court"s attention to the Affidavit of Katharine MacCormick, employee of the Privy Council Office, in which she deposes that in the rush to meet the applicant"s deadline, a clerical error occurred in which the Schedule was inadvertently provided to the applicant.     

The applicant disputes that the document was inadvertently disclosed by virtue of the fact that the respondent"s letter of March 19, 1999 specifically refers to the Schedule.

Furthermore, counsel for the applicant notes that the affidavit which supports the respondent"s contention that the Schedule was inadvertently provided was deposed by Katharine MacCormick. The applicant suggests that this issue should have been addressed by Nicole Jauvin, the Deputy Clerk of the Privy Council, or Elizabeth Renaud since both of these individuals were responsible for the production of the documents on March 19, 1999.

In these circumstances, the applicant relies on rule 81(2) of the Federal Court Rules, 1998 and submits that an adverse inference should be drawn from the failure of the respondent to provide evidence of persons having personal knowledge of material facts.

I am not prepared to draw such an inference in these circumstances. Rule 81(1) of the Federal Court rules, 1998 expressly permits statements of information and belief as evidence on motion. Although Ms. MacCormick did not prepare the documents in questions, as a senior official of the Privy Council Office, she is well placed to give evidence that the Privy Council Office never intended to disclose the Schedule. Moreover, there is additional evidence which strengthens the respondent"s contention that the Schedule was inadvertently produced.

The record shows that the respondent had only five business days to produce a total of 203 documents ordered by the Deputy Information Commissioner. It is entirely plausible that one document may have been inadvertently provided to the applicant. Further, where the applicant had doubts as to the genuineness of the respondent"s contention, it was open for him to cross-examine the affiant, which the applicant chose not to do. As such, I am of the opinion that the circumstances of this case differ from the Best Cleaners case in that the Schedule was inadvertently disclosed to the applicant during the course of his investigation into the complaint which underlies this proceeding.

Relying on Canadian Association of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130 (F.C.A.), at pp. 152-53, the respondent argues that the protection conferred by section 39 of the Canada Evidence Act is not lost or waived by the unintentional or inadvertent disclosure of a confidence. To this effect the Court of Appeal, citing the motions judge, stated:[t]he clear direction provided within this statutory provision cannot be overridden by an agent, or in this case, a solicitor of the Crown. (p. 153).

A section 39 certificate can be issued at any time during the proceeding and will have effect as of the date the certificate is issued. The statutory protection is not lost where the documents have been mistakenly or inadvertently disclosed. In such a situation, section 39 will operate so as to effectively preclude the Court from examining the documents. As stated by MacKay J. in Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 483 at pp. 522-523 (F.C.T.D.):In my opinion section 39 may be applied at any stage, and aside from the exceptional circumstances of Best Cleaners, once a certificate in compliance with the Act and the Court"s rules is filed, the Court, and the parties to an action, may not thereafter examine the information that is certified.

As such, the certificate in this case does constitute an effective bar to the production of this document to the Court. Consequently, it will not be examined by this Court on the application for judicial review under the Access to Information Act by virtue of section 39 of the Canada Evidence Act.

The applicant further argues that the Federal Court of Canada does not have the jurisdiction to compel the Information Commissioner to return the protected document to the Privy Council Office. However, in Canada (HRC) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, Bastarache J. stated that the general administrative jurisdiction of the Federal Court of Canada should not be interpreted in a narrow fashion.Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which included the interim measure to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction. (p. 659)

The Information Commissioner exercises statutory powers granted by the Parliament of Canada. The protected document was obtained through compulsion in the exercise of that statutory power. The document is protected as a matter of public policy under an enactment of the Parliament of Canada. The document has been found to have been produced by inadvertence. The return of the document was requested without delay. Accordingly, I order that the Schedule not be filed with the Court by the applicant and that it be returned to the respondent.

Documents obtained by the applicant from the respondent during the course of his investigation that the respondent claims are subject to solicitor-client privilege.

The applicant also seeks to file with the court, certain documents obtained by the Deputy Information Commissioner pursuant to the order to produce dated March 11, 1999. The documents in question are described and listed in Exhibit "D" of Katharine MacCormick"s affidavit.

The respondent asserts solicitor-client privilege for these documents and as such, argues that they should be protected from disclosure by way of an order directing the applicant not to use them or introduce them onto the record.

The applicant agrees that some portions of these records may indeed be subject to solicitor-client privilege. Nevertheless, the applicant asserts that the documents should be filed. The applicant does not object to having these documents filed in confidence in accordance with rules 151 and 152 of the Federal Court Rules, 1998.

Recognising the importance that solicitor-client privilege plays in the proper administration of justice, certain substantive rules have been formulated in order to assist the Courts in making determinations where conflicts emerge between the privilege and a piece of legislation which seeks disclosure. As articulated by Lamer J.(as he was then) in Descôteaux v. Mierzwinski, [1982] 1 R.C.S. 860:When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. (p. 875)

As such, solicitor-client privilege should only be interfered with to the extent absolutely necessary to achieve the ends of the Access to Information Act. To this effect, it is important to outline the purpose of the Access to Information Act and the means by which it carries out its mandate. Subsection 2(1) outlines the purpose of the Act:

Purpose of the Act 2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

Objet de la loi 2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

In order to fulfill this purpose, the Act confers broad powers of investigation and examination. For example, subsection 36(2) and section 46 of the Access to Information Act confer a broad power to both the Information Commissioner and the Court with respect to documents obtained in the course of an investigation. These sections read as follows:

Access to records 36(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds. Access to records 46. Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Court may, in the course of any proceedings before the Court arising from an application under section 41, 42 or 44, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.

Accès aux documents 36(2) Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, le Commissaire à l'information a, pour les enquêtes qu'il mène en vertu de la présente loi, accès à tous les documents qui relèvent d'une institution fédérale et auxquels la présente loi s'applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé. Accès aux documents 46. Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, la Cour a, pour les recours prévus aux articles 41, 42 et 44, accès à tous les documents qui relèvent d'une institution fédérale et auxquels la présente loi s'applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé.

Counsel for the respondent acknowledges that subsection 36(2) of the Access to Information Act gives the Information Commissioner a special and additional power to examine documents that would otherwise be privileged from production. However, counsel espouses a restrictive interpretation of "examine" so as to limit it to a power of inspection. Essentially, the respondent argues that subsection 36(2) does not nullify solicitor-client privilege or give the Information Commissioner the power to use or disclose documents that are otherwise privileged from production.

Similarly, the respondent is of the view that section 46 of the Access to Information Act confers to the Court a limited power of examination for the purposes of determining whether certain documents attract privilege or not.

However, this argument fails to give proper consideration to the entire wording of sections 36 and 46 in the context of the entire Access to Information Act. The power of examination conferred to the Court by virtue of section 46 of the Access to Information Act may takes place notwithstanding "any privilege under the law of evidence". This would include the solicitor-client privilege asserted by the respondent.

As noted by the applicant, the respondent"s interpretation of subsection 36(2) and section 46 would effectively preclude the judge hearing the application from examining the documents in question to determine whether or not they are legally withheld on account of privilege. As stated by Dickson J. (as he then was) in [1980] 1 S.C.R. 821">Canada v. Solosky , [1980] 1 S.C.R. 821:To make the decision as to whether the privilege attaches, the letters must be read by the judge, which requires, at a minimum, that the documents be under the jurisdiction of a court. Finally, the privilege is aimed at improper use or disclosure, and not at merely opening. (p. 837)

As such, I am of the opinion that the privilege asserted in this case cannot operate so as to prevent the Information Commissioner from introducing them into the record.

The respondent argues that the Court hearing the motion is a as good a position to determine whether the claim of solicitor-client privilege is well-founded as the Court that will hear the application of its merits. This argument however fails to consider that such an order would have the effect of preemptively excluding certain documents from the record by way of a preliminary motion, an exercise contrary to the general principle of an expeditious hearing set out in section 45 of the Access to Information Act.

Section 45 of the Access to Information Act provides that an application made under section 42 of this Act shall be heard and determined in a summary way.

Clearly, the policy objective is that applications to this Court under the Access to Information Act be heard and determined without delay and in a summary manner.

Time consuming interlocutory proceedings are not compatible with these provisions, particularly when the matter can be dealt with by the judge hearing the application. As articulated in Pharmacia Inc. v. Canada (Minister of National Health and Welfare)4, arguments which can be dealt with by the judge hearing the application should not be introduced by way of interlocutory motions. Dealing with the respondent"s motion to strike, Strayer J.A. states:This case illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one-half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail. The originating notice of motion itself can and will be dealt with definitively on its merits at a hearing before a judge of the Trial Division now fixed for January 17, 1995. (p. 215)

The question of solicitor-client privilege and admissibility of such documents is a question of evidence which should be left to the judge hearing the application on its merits.

This being said, the privilege asserted for the documents in question does satisfy this Court of the demonstrated need for confidentiality as required by rule 151of the Federal Court Rules, 1998. The latter states:

151(1) Motion for order of confidentiality On motion, the Court may order that material to be filed shall be treated as confidential. (2) Demonstrated need for confidentiality "Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings

151(1) Requête en confidentialité La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels. (2) Circonstances justifiant la confidentialité "Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l"intérêt du public à la publicité des débats judiciaires

As such, I order that the documents referred to in Exhibit "D" of Katharine MacCormick"s affidavit for which a claim of solicitor-client privilege is asserted be filed and dealt with confidentially in the manner set out by rules 151 and 152 of the Federal Court Rules, 1998 .

Certain documents obtained by the applicant in the course of his investigation that the respondent claims should be treated as confidential under rule 151 and rule 152 of the Federal Court Rules, 1998.

The last documents subject to this motion are the remaining documents which were obtained by the Information Commissioner in the course of his investigation. The applicant proposes to file these documents in the public record.

The respondent does not take issue with the fact that these documents should be part of the record. However, the respondent seeks to have these documents filed and treated confidentially.

Our judicial system rests on the principle of open justice. As stated by the Supreme Court of Canada in [1982] 1 S.C.R. 175">A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175:Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial document might be used for an improper use. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. (p.189)

The onus then rests on the respondent to demonstrate that the remaining material obtained during the Information Commissioner"s investigation should be treated confidentially. This principle is consistent with rule 151(2) the Federal Court Rules, 1998 which requires that the Court be satisfied "that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings".

The respondent offers the following evidence which supports his request for confidentiality. Katharine MacCormick deposes at paragraph 17 of her affidavit:Also included in the documents which the Applicant proposes to file with the Court are ones for which exemptions from public disclosure could be claimed under the Access to Information Act if a request were made. Since no request for access under the Access to Information Act has been made for these documents, they have not been reviewed by the head of the institution for possible exemptions under the Act.

The applicant argues that a mere statement that certain exemptions may be claimed is not sufficient to have these documents filed confidentially. A confidentiality order must have regard to section 47 of the Access to Information Act which sets out specific requirements for the disclosure of documents. This provision reads:

Court to take precautions against disclosing 47. (1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act;

Précautions à prendre contre la divulgation 47. (1) À l'occasion des procédures relatives aux recours prévus aux articles 41, 42 et 44, la Cour prend toutes les précautions possibles, notamment, si c'est indiqué, par la tenue d'audiences à huis clos et l'audition d'arguments en l'absence d'une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque_: a) des renseignements qui, par leur nature, justifient, en vertu de la présente loi, un refus de communication totale ou partielle d'un document;

Section 47 contemplates special precautions against disclosure where "the head of a government institution would be authorized to refuse disclosure". The affidavit of Ms. MacCormick only raises the possibility that the documents in questions could be subject to the exemptions of the Access to Information Act . I am not satisfied that this hypothetical situation is sufficient to justify that the material be filed confidentially.

Accordingly, the remaining documents will be filed on the public record.

     ____________________________

     Chief Justice

Ottawa, Ontario

November 15, 1999

__________________

     ¹      R.S.C. 1985, c. A-1.

     ²      SOR/98-106.

     ³      R.S.C. 1985, c. C-5.

     ⁴      (1994), 58 C.P.R. (3d) 209 (F.C.A.); see also Merck Frosst Canada Inc. v. Canada (Minister of Health) , [1999] F.C.J. No. 182 (F.C.A.).