Docket: T-1904-13
Citation:
2015 FC 789
Ottawa, Ontario, June 24, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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INFORMATION COMMISSIONER OF CANADA
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Applicant
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and
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THE MINISTER OF HEALTH
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Respondent
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PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
(Confidential
Reasons for Judgment and Judgment issued April 28, 2015)
[1]
This is an application by the Office of the
Information Commissioner of Canada (OICC) for judicial review pursuant to
paragraph 42(1)(a) of the Access to Information Act, RSC 1985, c A-1
[the Act], in respect of the Minister of Health’s decision to refuse to
disclose information responsive to Apotex’s request (the requester or Apotex)
under the Act for records related to the processing of an Abbreviated New Drug
Submission (ANDS) and issuance of a notice of compliance with respect to
Apo-Pantoprazole.
[2]
The OICC (the applicant) requests an order
directing the Minister of Health to disclose the records at issue to the
requester. If this Court finds that only some of the records are subject to the
section 23 exemptions, the OICC requests an order directing the Minister of
Health to re-exercise discretion on the portion of the records over which the
privilege has been found to apply, taking into account this Court’s reasons and
the nature of the records that have been ordered to be disclosed.
I.
Background
[3]
In order for a drug manufacturer to market a new
drug in Canada, it must first obtain a notice of compliance (NOC) issued by the
Minister of Health, pursuant to the Food and Drug Regulations, CRC, c
870. To obtain a NOC, a drug manufacturer must file a submission with the
Minister. An ANDS is available under the Regulations to generic drug
manufacturers who wish to obtain a NOC for a generic drug that is the
bioequivalent to a previously approved drug.
[4]
[…].
[5]
[…].
[6]
In 2007, Apotex commenced litigation against the
government (Apotex Inc v Attorney General of Canada, CV-344635PD1)
alleging that it suffered damages due to Health Canada’s refusal or delay in
approving drug submissions with respect to six drugs. In March 2010, Apotex
amended its statement of claim to include further allegations in relation to
five other drugs, Apo-Pantoprazole being one of them.
[7]
On July 12, 2010, Health Canada’s Access to Information and Privacy (ATIP) Division received an access to
information request from Dr. Barry Sherman, chairman and chief executive
officer of Apotex Inc., for copies of all documents related to the processing
of ANDS and issuance of the March 5, 2008 NOC.
II.
Decision Under Review
[8]
This judicial review is for Health Canada’s (the
respondent) refusal to disclose eight pages of documents. The timeline of its disclosure
refusal is as follows.
[9]
After receiving the request for disclosure, on
May 20, 2011 Health Canada provided 47 pages in their entirety and a redacted
version of eight pages for a total of 55 pages of documents. Portions of the
eight pages at issue were withheld from disclosure on the basis of
solicitor-client privilege pursuant to section 23 of the Act.
[10]
On June 14, 2011, the OICC received a complaint
from the requester concerning Health Canada’s application of section 23 of the
Act as a basis for refusal to disclose. During the course of the OICC’s
investigation, it sought and obtained an unredacted copy of the documents at
issue, as well as Health Canada’s file relating to the processing of the
requester’s access file.
[11]
The eight pages of redacted record contain the
following information: 1) five out of eight pages contain email strings bearing
the subject line […]; 2) one page of search results for Pantoloc in the Patent
Register […]; and 3) the last two out of eight pages contain email strings
bearing the subject line […] involving a counsel at the civil litigation
section at the Department of Justice (DOJ) and a senior counsel at Health
Canada Legal Services.
[12]
On January 26, 2012, the OICC wrote a letter
acknowledging that the communications between Health Canada and the DOJ were
between the client institution and the solicitor. […]. It recommended the
release of the eight pages of record at issue. Further, the OICC investigator
asked Health Canada to provide answers to the following questions: i) what was
the legal advice sought? ii) what was the legal advice given? and iii) what is
the harm or injury if the information was released and provide rationale for
the continued exemptions on the records?
[13]
On March 5, 2012, Health Canada provided its
answer to the OICC stating that: 1) […]; 2) section 23 of the Act does not
require an injury test. A class test applies where a government institution is
satisfied that information falls within the class specified. It is a sufficient
basis to refuse disclosure. Health Canada concluded that it maintains its
original assessment that these records are communications between counsel and
client to obtain or provide legal advice.
[14]
On July 31, 2012, the OICC wrote to Health
Canada pursuant to paragraph 35(2)(b) of the Act asking for all evidence and
arguments Health Canada relied on to reach its conclusion. On September 4,
2012, Health Canada responded with the same rationales as its March 5, 2012
letter.
[15]
On April 23, 2013, the OICC wrote to Health Canada stating that Health Canada had not established that the withheld information
qualifies as being subject to solicitor-client privilege and that even if the
privilege could apply, the evidence did not establish that discretion had been
properly exercised.
[16]
On May 24, 2013, Health Canada informed the OICC that it maintains its position that the solicitor-client privilege
exemption applies.
[17]
The OICC reported the result of its
investigation to the requester. With the requester’s consent, it initiated this
application for review pursuant to paragraph 42(1)(a) of the Act.
III.
Issues
[18]
The applicant submits three issues for my
review:
1.
Has Health Canada satisfied its onus of
establishing that the portions of the record it has refused to disclose are
subject to solicitor-client privilege?
2.
If Health Canada has demonstrated that any
portion of the withheld records are subject to solicitor-client privilege, did
the Minister properly exercise its discretion not to disclose the records
pursuant to section 23 of the Act?
3.
If Health Canada is authorized to refuse to
disclose any of the records, has it met its obligation of disclosing all parts
of those records that do not contain and can reasonably be severed from any
part that contains the information that is exempted from disclosure, in
accordance with section 25 of the Act?
[19]
In response, the respondent submits two issues:
1.
Do the records contain information that is
subject to solicitor-client privilege such that the Minister was authorized to
refuse to disclose it under section 23 of the Act?
2.
If yes, did the Minister reasonably exercise its
discretion in refusing disclosure of portions of the records?
[20]
In my view, there are four issues:
A.
What is the standard of review?
B.
Do any of the records contain information that
is subject to solicitor-client privilege?
C.
If yes, did the Minister reasonably exercise its
discretion in refusing disclosure of portions of the records?
D.
Was the severance of information reasonable
under section 25 of the Act?
IV.
Applicant’s Written Submissions
[21]
The applicant submits the question of whether
the exemption under section 23 of the Act has been properly applied by the
Minister is reviewable on a standard of correctness, while the Minister’s
discretionary decision to refuse disclosure is reviewable on a standard of
reasonableness (see Canada (Information Commissioner) v Canada (Minister of
Industry), 2001 FCA 254 at paragraph 47, [2001] 1 FC 421[Industry]; Blank
v Canada (Minister of Justice), 2009 FC 1221 at paragraph 31, [2009] FCJ No
1509 [Blank]; and Canada (Information Commissioner) v Canada
(Minister of Public Safety and Emergency Preparedness), 2012 FC 877, [2012]
FCJ No 1527 [MPSEP]).
[22]
The applicant starts by submitting that the
general principles underlying the regime of the Act is to facilitate the right
of access to requestors (see Canada (Information Commissioner) v Canada
(Minister of National Defence), 2011 SCC 25 at paragraph 15, [2011] 2 SCR
306 [National Defence]) and to facilitate democracy by ensuring that
citizens have the information required to participate meaningfully in the
democratic process (see Dagg v Canada (Minister of Finance) [1997] 2 SCR
403 at paragraph 61, [1997] SCJ No 63 [Dagg]). It submits the
burden of demonstrating that a denial of access to records is appropriate rests
on the party opposing disclosure (see Toronto Sun Wah Trading Inc v Canada
(Attorney General), 2007 FC 1091 at paragraph 9, [2007] FCJ No 1418 [Toronto
Sun]; and Rubin v Canada (Canada Mortgage and Housing Corp), [1989]
1 FC 265, [1988] FCJ No 610). It argues exceptions to non-disclosure must be
interpreted strictly (see Rubin v Canada (Minister of Transport), [1998]
2 FC 430 at paragraph 23, [1997] FCJ No 1614 [Rubin]).
[23]
Then, the applicant submits the respondent has
not satisfied the onus of demonstrating that section 23 applies. It states
there are two types of solicitor-client privilege under section 23 of the Act,
litigation privilege and legal advice privilege (see Leahy v Canada
(Minister of Citizenship and Immigration), 2012 FCA 227 at paragraph 82,
[2014] 1 FCR 766). Litigation privilege is no longer in issue. For legal advice
privilege, it can be claimed document by document with each document being
required to meet three criteria: i) a communication between solicitor and
client; ii) which entails the seeking or giving of legal advice; and iii) which
is intended to be confidential by the parties (see Solosky v The Queen,
[1980] 1 S.C.R. 821 [Solosky]). The applicant argues that not everything
uttered by a lawyer to a client is privileged.
[24]
Insofar as the applicant’s first issue is
concerned, it submits that legal advice privilege does not apply to the records
at issue.
[25]
First, the applicant argues that the
respondent’s September 4, 2012 letter referred to only legal advice privilege
in explaining its rationale for withholding the records and the May 24, 2013
letter only referred to the content in the September 4, 2012 letter.
[26]
Second, the applicant argues the three Solosky
criteria were not met under the legal advice privilege.
[27]
For the first element, it argues that many of
the emails did not involve anyone who has been identified as a solicitor and
these were communications among Health Canada employees which do not constitute
communications between a solicitor and a client. Although a lawyer was copied
on these communications, providing a copy of a record to a lawyer is not
sufficient to turn that record into a privileged communication. It states the only
documents that met this requirement were the ones involving the counsel from
the respondent and the counsel from the DOJ.
[28]
For the second element, the applicant argues
solicitor-client privilege does not apply to communications where legal advice
is not sought or offered, or advice is given by lawyers on matters outside the
solicitor-client relationship (see Pritchard v Ontario (Human Rights
Commission), 2004 SCC 31 at paragraph 16, [2004] 1 S.C.R. 809 [Pritchard];
and R v Campbell, [1999] 1 S.C.R. 565 at paragraph 50, [1999] SCJ No 16).
It argues that ongoing solicitor-client relationships between a government
institution and their lawyers entail highly diverse activities and frequently
include communications that do not entail the seeking or giving of legal advice
(see Foster Wheeler Power Co v Société
intermunicipale de gestion et d’élimination des déchets Inc, 2004 SCC 18 at paragraph 43, [2004]
1 SCR 456 [Foster]). The applicant argues that the email string bearing
the title […] does not meet the criteria because this kind of knowledge would
have extended to a party outside the solicitor-client relationship. […]. As for
the rest of the documents, the applicant further argues that page six
containing the patent search results is also […] related and does not constitute
the seeking or giving of legal advice. The email between the counsels also
concerns another point on OPML which has nothing to do with Apo-Pantoprazole.
[29]
For the third element, the applicant argues the
records were not intended to be confidential by the parties involved. It argues
[…] except for the email exchanged between counsel.
[30]
Insofar as the applicant’s second issue is
concerned, it submits the respondent did not exercise its discretion to waive
the exemption reasonably. […] “there is nothing in
Ottawa.” It submits that in the event this Court finds that a portion of
the records are properly subject to solicitor-client privilege, it should
follow the approach of the Federal Court of Appeal in Canada (Information
Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness),
2013 FCA 104 at paragraphs 46 to 48, [2013] FCJ No 439 [Public Safety].
In that case, the Court of Appeal invited the decision makers to re-exercise
their discretion in light of the Court’s reasons, which had found that the vast
majority of the record was not exempt from disclosure.
[31]
Insofar as the applicant’s third issue is
concerned, it submits that if this Court finds only part of a communication is
privileged, section 25 of the Act provides that the head of the institution is
required to sever the privileged portion and disclose the remainder.
V.
Respondent’s Written Submissions
[32]
The respondent agrees with the applicant’s
position on the standard of review. It submits the onus is on the Minister to
establish that the exemption under section 23 of the Act applies on a balance
of probabilities (see Merck Frosst Canada Ltd v Canada (Health), 2012
SCC 3 at paragraph 94, [2012] 1 S.C.R. 23 [Merck]).
[33]
The respondent concedes that it has the onus of
proof on a balance of probabilities. It first reviews the general principles of
the Act, stating that the statute expressly recognizes that information in the
hands of government institutions “should be available
to the public” but the right to access is subject to “necessary exceptions” (National Defence at paragraphs
15 and 16). In response to the applicant’s argument of a strict interpretation,
the respondent submits unlike the Rubin case which required the
interpretation of the word “investigation,” there is no ambiguity in the
meaning of the term solicitor-client privilege.
[34]
About solicitor-client privilege, the respondent
argues this privilege is to be protected in virtually all circumstances and
infringements should be kept to an absolute minimum (see Descôteaux et al v
Mierzwinski, [1982] 1 S.C.R. 860 at paragraph 27 [Descôteaux]). This privilege protects
all communications between solicitor and client and third parties that directly
relate to the seeking, formulating or giving of legal advice (see AFS and Co
v Canada, 2001 FCT 422 at paragraph 21, [2001] FCJ No 669). It cites the
three criteria of Solosky and argues that these have been met for solicitor-client
privilege to apply.
[35]
The respondent submits the Minister was
authorized to refuse to disclose the records. It states i) the information
contained in these records is solicitor-client privileged; ii) the communications
contained legal advice; and iii) the email communications were intended to be
confidential.
[36]
Firstly, the record containing the communication
among the Health Canada employees and DOJ employees and the Patent Register
printout are communications between Health Canada, the client and the DOJ, the
solicitor. The respondent argues the Minister of Justice presides over the DOJ
and is by law, the legal advisor to the executive branch of government which in
other words, the DOJ is the government’s law firm, the Attorney General of
Canada is the solicitor and the individual departments are its clients.
[37]
The protection of communication is not limited
to only those exchanged between the solicitor and client, but also those made
in the context of that relationship and for the purpose of obtaining legal
advice (Descôteaux at paragraph 21) such as those made with the clerks and subordinates
of the solicitor (see Wheeler v Le Marchant (1881), 17 Ch D 675 [Wheeler]) and those in the format of
emails (see R v Gateway Industries Ltd, 2002 MBQB 285 at paragraph 14,
[2002] MJ No 473).
[38]
In specifics to the records, the respondent
submits the email strings bearing the subject line […] involve nine people
within the DOJ who formed part of […] including counsel David Cowie […] ultimately
advised to issue the NOC in the email strings bearing the subject line […]. This was conducted within the usual and ordinary
scope of the professional relationship (Pritchard at paragraph 16). It
submits given that the request for access was only for certain records, these
are only snapshots of […] which the DOJ was involved continually in providing
legal advice leading up to March 5, 2012. Further, even the OICC concurred that
the communication was made between the client Health Canada and its solicitor
DOJ in one of its letters (January 26, 2012 letter).
[39]
Secondly, about the contents of the
communications, the respondent argues the second prong of the Solosky
test on the seeking or giving of “legal advice” is not to be applied
restrictively. It cites Descôteaux regarding the breadth of the communications
protected from disclosure “all information which a
person must provide in order to obtain legal advice and which is given in
confidence for that purpose enjoys the privileges attached to confidentiality.”
This includes the communication made within “the
continuum of communications” in tendering advice such as those made in
the present case (see Samson Indian Band v Canada, [1995] 2 FC 762 at
paragraph 8, [1995] FCJ No 734 [Samson]; and Public Safety at
paragraph 26). The respondent submits, therefore, while a specific
communication looked at in isolation may not appear to be solicitor-client
privileged, it may nevertheless be privileged because it falls within the
continuum of communications between client and solicitor. It argues such is the
situation in the present case.
[40]
[…]. This is due to the highly competitive
nature of the pharmaceutical industry. Here, the requester had already
initiated a number of legal proceedings against the respondent and the records
at issue relate to the issuance of a NOC for Apo-Pantoprazole. The respondent […].
The applicant proposes too narrow a construction of the privilege in arguing
the records […].
[41]
[…].
[42]
[…] (see Maranda v Richer, 2003 SCC 67 […]
[2003] 3 S.C.R. 193 [Maranda]). It cites Ontario
(Attorney General) v Ontario (Assistant Information and Privacy Commission),
[2005] OJ No 941, 251 DLR (4th) 65 (ON CA); and Legal Services Society v
British Columbia (Information and Privacy Commissioner), 2003 BCCA 278,
[2003] BCJ No 1093 for support. The respondent argues if the records were to be
disclosed in this case, they would allow the requester to deduce
solicitor-client privileged information […].
[43]
Thirdly, as for the marking of the communication
being confidential, the respondent submits simply because the emails are not
marked by words like “privileged” and “confidential”, it does not mean that the
client did not intend them to be confidential. It argues since the
communications were sent to a limited circle of individuals, it was
presumptively confidential absent any evidence of a contrary intention. The
element of confidentiality is inferred on the basis of the subject of the communication
and the surrounding circumstances (see Sheldon Blank & Gateway
Industries Ltd v Canada (Minister of the Environment), 2001 FCA 374 at
paragraph 29, [2001] FCJ No 1844 [Gateway]). Therefore, in this case,
confidentiality should be inferred from the email recipient list.
[44]
Next, the respondent submits the Minister’s
exercise of discretion in declining to release the emails in their entirety was
reasonable. It argues that as long as there is evidence that the discretion was
in fact exercised, a refusal to disclose is not subject to any further inquiry.
The nature of the privilege is so close to absolute. It states the Minister’s
response letter to the OICC included the following factors in its consideration
of exercising discretion: i) the context in which the records were created and
the relationship between the communicators; ii) the nature of work involving […];
iii) the way in which advice is provided; iv) the harm that could result […] if
records were disclosed; and v) the purpose and intent of the Act. Therefore,
these were evidence of the Minister’s reasonable exercise of discretion.
[45]
Third, the respondent submits the information
was reasonably severed pursuant to section 25 of the Act. It argues when
applying the severance principle under section 25, the disclosure must still be
meaningful (see Blank v Canada (Minister of the Environment), 2007 FCA
289 at paragraph 7, [2007] FCJ No 1218 [Blank 289]) and reasonably
fulfill the purposes of the Act (Merck at paragraph 237). It submits the
portions the applicant suggests to be severed would be “disconnected
snippets of meaningless information” which does not fulfill the purpose
of the Act. It urges this Court to not strain to surgically excise parts from a
privileged communication, though of a general nature, are nonetheless part of
that communication (see Blank v Canada (Minister of Justice), 2007 FCA
147 at paragraph 3, [2007] FCJ No 523, [Blank 147]).
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[46]
In the present case, the applicant and the
respondent both agree on the applicable standards of review. First, the
question of whether the Minister properly applied the exemption of
solicitor-client privilege under section 23 of the Act is reviewable on the
standard of correctness. Second, the reasonableness of the Minister’s
discretionary decision to refuse disclosure is reviewable on the standard of
reasonableness (Industry at paragraph 47; Blank at paragraph 31;
and MPSEP).
B.
Issue 2 - Do any of the records contain
information that is subject to solicitor-client privilege?
[47]
The Access to Information Act serves to
facilitate the right of access to information by requesters (National Defence
at paragraph 15). It is fundamental to Canada’s democratic process (Dagg
at paragraph 61). The Act recognizes that the information in the hands of
government should be available to the public, but this right to access is
subject to necessary exemptions (National Defence, at paragraphs 15 and
16). Section 23’s solicitor-client privilege is a discretionary, class
exemption. The exemption in section 23 ensures that the government has the same
protection for its legal documents as persons in the private sector. It permits
the head of a government institution to refuse to disclose records containing
information subject to solicitor-client privilege. The burden of proving that
an exemption applies rests on the party opposing disclosure (Toronto Sun
at paragraph 9), which in this case is the respondent, Health Canada.
[48]
I agree with the respondent that the
solicitor-client privilege should be analyzed in a continuum of communication
and documents should not be examined in isolation. I find all except for one
part of the records under judicial review are subject to the solicitor-client
privilege. I will explain my reasons below.
[49]
Regarding statutory interpretation of section
23, the applicant submits a strict interpretation of solicitor-client privilege
should be applied and the respondent counters the applicant’s argument is
flawed because statutory interpretation is not at issue since there is no
ambiguity in the meaning of the term solicitor-client privilege. In my view,
the respondent is right to argue the Rubin case relied on by the
applicant can be distinguished because the Court of Appeal’s interpretation was
based on the ambiguity of the word “investigation.” In that case, the Court of
Appeal found the adoption of a broad interpretation of the word “investigation”
would make the associated time limit in the statute meaningless (Rubin
at paragraph 26). Here, however, the term solicitor-client privilege is not
ambiguous and it is well defined in case law.
[50]
Solicitor-client privilege is considered to be a
cornerstone principle of the legal system (Pritchard at paragraph 14).
It does not cover merely the opinions provided by counsel, but also applies to
all the communications made to counsel by the client to obtain that advice, as
well as advice given in the preparation of litigation. The Supreme Court of
Canada has described this privilege as “nearly absolute”
(see Lavallee, Rackel and Heintz v Canada (Attorney General), 2002 SCC
61 at paragraph 36, [2002] 3 S.C.R. 209, citing with approval the decision of
Dickson, J. in Hunter v Southam Inc, [1984] 2 S.C.R. 145). Here, only one category
of solicitor-client privilege is at issue: legal advice privilege.
[51]
Insofar as the legal advice privilege is
concerned, the Supreme Court of Canada stated in Solosky that it can be
claimed document by document with each document being required to meet three
criteria: i) a communication between solicitor and client; ii) which entails
the seeking or giving of legal advice; and iii) which is intended to be
confidential by the parties. In my view, all except for one part of the
documents at issue meet these criteria.
[52]
For the first prong of the Solosky test,
I agree with the respondent that all the documents at issue contain
communication between solicitor and client. Here, the applicant argues that
many of the communications did not involve anyone who has been identified as a
solicitor. The respondent argues the documents at issue contain communication
between Health Canada as the client and the DOJ as the solicitor.
[53]
The protection of communication under the
solicitor-client privilege is not limited to only those exchanged between the
solicitor and client, but also those made in the context of that relationship
and for the purpose of obtaining legal advice (Descôteaux at paragraph 21). This includes
communications made with the clerks and subordinates of the solicitor (Wheeler).
[54]
Here, I find the communication was conducted
within the usual and ordinary scope of the professional solicitor-client
relationship (Pritchard at paragraph 16). For example, the email strings
bearing the subject line […] involved nine people, some from the DOJ, among
which was counsel David Cowie […] in the email bearing the subject line […]. Further, the respondent correctly points out that on
examination of the submitted material, it reveals that on one of the OICC’s
earlier letters written to Health Canada dated January 26, 21012 acknowledged
the communication was exchanged between Health Canada as the client and the DOJ
as the solicitor. This shows that the applicant conceded the first prong of the
test in its evidentiary document. Therefore, I find the documents at issue are
between solicitor and client to meet the first prong of the test.
[55]
For the second prong of the Solosky test,
with respect to all except for one part of the documents, I agree with the
respondent that when the documents are examined in context, they qualify as legal
advice. Here, the applicant argues that some of the communications do not
qualify as legal advice sought or given because […]. On the other hand, the respondent
argues this Court should examine the documents in the continuum of
communications in tendering legal advice. It also argues, […].
[56]
Information should be
examined not in isolation, but in a continuum of communication to consider the
proper context (Samson at paragraph 9; Public Safety at paragraph
26). In this case, if the individual documents such as the emails and the
patent search result are examined on their own, it does seem to me that […].
However, within a continuum of communication, […]. The background provided by
the respondent shows […].
[57]
In support, the respondent submits the following
[…].
[58]
[…] I agree with the respondent that if these
documents were disclosed, it would likely allow the requester to deduce
solicitor-client privileged information regarding the Minister’s legal
authority to issue the NOC.
[59]
I find all except for one part of these
documents relate to legal advice. The email string bearing the subject line […]
involves a counsel at the civil litigation section at the DOJ and a senior
counsel at the Health Canada Legal Services. […]. It also contains information
on OPML which the applicant argues has nothing to do with Apo-Pantoprazole and
rather, it is related to staffing. The respondent provides no response to what
OPML is about. Therefore, if the applicant is right about what OPML means, this
part of the document would not meet the second prong of the Solosky test
and hence, not subject to the exemption under solicitor-client privilege.
[60]
For the third prong of the Solosky test,
I agree with the respondent that the documents at issue contain confidential
subject matter. On one hand, the applicant argues […]. On the other hand, the
respondent argues confidentiality should be based on the subject matter, not
the associated markings.
[61]
The Federal Court of Appeal stated in Gateway
at paragraph 29 that, “[i]n the case of most
solicitor-client communications . . . the element of confidentiality is
inferred on the basis of the subject of the communication and the surrounding
circumstances.” Here, except for the email string bearing the subject
line […] which involves a counsel from Health Canada and a counsel from the
DOJ, […]. However, […] in my view, the subject matter of the communications in
these undisclosed documents is confidential in nature. Therefore, the third
prone of the Solosky test is met.
[62]
Since all except for one part of the documents
meet each of the three prongs of the Solosky test, I find all the
documents at issue except for the part relating to OPML are subject to the
protection of the solicitor-client privilege and hence, exempted from
disclosure.
C.
Issue 3 - If yes, did the Minister reasonably
exercise its discretion in refusing disclosure of portions of the records?
[63]
As I have found above that all but one part of
the documents properly fall under the solicitor-client privilege exemption, I will
now examine the reasonableness of the Minister’s exercise of discretion for
waiving this exemption. The section 23 exemption was made discretionary to
parallel the common law rule that the privilege belongs to the client, who is
free to waive it.
[64]
The applicant argues the Minister failed to
exercise its discretion reasonably because it […] “…
there is nothing in Ottawa.” It further argues in the event that I find
the documents do qualify under the solicitor-client privilege, I should invite
the decision maker to re-exercise its discretion pursuant to the Public
Safety case.
[65]
On the other hand, the respondent argues the
Minister reasonably exercised its discretion in declining the release and
provided sounded reasons for its consideration. It argues that since the nature
of the solicitor-client privilege is so close to absolute, the Minister meets
its obligation to exercise discretion as long as there is evidence that
discretion was exercised.
[66]
I agree with the respondent that the Minister’s
discretion should be afforded deference. In this case, as demonstrated by the
correspondence between Health Canada and the OICC, Health Canada did provide reasons on why it refused to accept the OICC’s recommendation to
disclose the documents at issue. Also, there is no evidence of any abuse of
discretion. Therefore, I am satisfied that the Minister reasonably exercised
its discretion.
D.
Issue 4 - Was the severance of information
reasonable under section 25 of the Act?
[67]
This Court should not strain to surgically excise
parts of a privileged communication, though of a general nature, are
nonetheless part of that communication (see Blank v Canada (Minister of
Justice), 2007 FCA 147 at paragraph 3, [2007] FCJ No 523). Also, the
exercise of the severance principle under section 25 needs to ensure the
disclosure is meaningful (see Blank 289 at paragraph 7) and reasonably
fulfills the purposes of the Act (Merck at paragraph 237).
[68]
Here, the only part of the documents that would
be subject to disclosure is the sentence relating to OPML in the email titled […]
exchanged between counsel. I am of the view that severance was properly
exercised except that the above noted sentence should be severed.
[69]
For the reasons above, I would deny this
application with the exception referenced in paragraphs 59 and 68 of these
reasons.
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