Date:
20100329
Docket: A‑519‑08
Citation:
2010 FCA 88
CORAM: BLAIS C.J.
NADON J.A.
TRUDEL J.A.
BETWEEN:
MAURICE PHILIPPS
Appellant
and
LIBRARIAN AND ARCHIVIST OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
In 1978, Montréal lawyer Louis M. Bloomfield,
who died on July 19, 1984, transferred a significant collection of
documents (the “Bloomfield Fund”) to Library and Archives Canada (LAC), on the condition
that the public not have access to the documents until 20 years after his
death.
[2]
On August 10, 2004, the appellant requested
that LAC give him access to the Bloomfield Fund. However, on August 31,
2004, Mrs. Bloomfield, the widow of Mr. Bloomfield, requested that
LAC restrict access to the Bloomfield Fund until 10 years after her own death, owing
to concerns for her privacy and the reputation of her spouse.
[3]
On April 20, 2005, LAC decided to extend
the no‑access period applying to the Bloomfield Fund to 25 years after Mrs. Bloomfield’s
death.
[4]
On August 8, 2005, the appellant filed an
application for judicial review. That application was allowed by Mr. Justice
Simon Noël of the Federal Court, who stated, in his November 14, 2006
decision that, in his view, LAC had erred in extending the no-access period
because it had attributed disproportionate importance to Mrs. Bloomfield’s
wishes.
[5]
Consequently, Noël J. concluded that LAC’s
decision was unreasonable and referred the file back to LAC for it to reconsider
the appellant’s request by taking into account his Reasons, the Library and
Archives of Canada Act, 2004, c. 11, and the Guidelines and
Procedures for the Establishment and Management of Access Conditions relating
to Funds held by Manuscript Division.
[6]
On June 8, 2007, LAC made a new decision,
according to which the Bloomfield Fund would be made publicly accessible as of
July 2009, except for certain documents that, in LAC’s opinion, were covered
by solicitor‑client privilege and would therefore not be made accessible to
the public for an additional period of up to 50 years.
[7]
LAC’s decision is found in a letter addressed to
the appellant and dated June 8, 2007. The letter reads as follows:
[translation]
Library and Archives of Canada (LAC)
undertook to make a decision on the situation of the Louis M. Bloomfield Fund prior
to June 8, 2007. In arriving at the decision mentioned below, an internal
review of the collection was undertaken in accordance with the guidelines
proposed by Mr. Justice Simon Noël in his decision dated November 14,
2006.
In his decision, Noël J. indicated that
restricting access to the Fonds until 2014 was a reasonable measure in this
case. Based on their review of the records in the Fund, LAC officials
decided that the Fund would remain closed for a period of five years starting
in 2004, and would therefore open the collection to researchers during the
first week of July 2009. Once this period has elapsed and the Fund is
open, LAC reserves the right, in accordance with sections 7 and 8 of the Library
and Archives of Canada Act, to limit access to the material that is
protected by solicitor-client privilege for an additional period of up to 50
years after the latest date in the file.
[Emphasis added.]
[8]
On June 26, 2008, the appellant filed an
application for judicial review, seeking to set aside LAC’s decision and make
the Bloomfield Fund accessible to the public immediately. As his application
for judicial review made clear, the appellant criticized LAC for having failed
to take Justice Noël’s Reasons into account and for not providing reasons for
its decision.
[9]
On September 16, 2008, Mr. Justice de Montigny
of the Federal Court dismissed the appellant’s application for judicial review
(decision 2008 FC 1028). According to de Montigny J., LAC’s decision was
“reasonable and consistent with the Library and Archives of Canada Act,
the Guidelines adopted thereunder, and the reasons given by Noël J. in his
decision on the first application for judicial review in this matter”
(paragraph 41 of the Judge’s Reasons).
[10]
In addition, in light of the Supreme Court of
Canada’s decision in Baker v. Canada (MCI), [1992] 2 R.C.S. 817, Justice
Montigny found that LAC had met its obligation to provide reasons for its
decision.
[11]
On October 14, 2008, the appellant filed a
Notice of Appeal in this Court.
[12]
The respondent drew this Court’s attention to
the fact that since July 1, 2009, 75 percent of the documents have
been accessible to the public. Therefore, according to the respondent, the
appeal is moot. In my opinion, there can be no doubt that the appeal has no
basis with respect to these documents.
[13]
As for the documents covered by solicitor-client
privilege, which documents will not be made publicly accessible for an
additional period [translation] “of
up to 50 years after the latest date in the file”, the respondent submits, inter
alia, that neither before Justice Noël nor before Justice de Montigny did
the appellant raise the issue of whether those documents were in fact covered
by solicitor-client privilege. My reading of the application for judicial
review before us in this appeal does indeed confirm that the appellant did not
raise this issue at trial. Moreover, this issue is not raised in the Notice of Appeal
filed by the appellant.
[14]
The respondent submits that since the appellant
did not raise the issue of solicitor-client privielge at trial, he cannot file
the appropriate evidence concerning that issue. In my opinion, considering that
the appellant did not raise the issue of solicitor-client privilege, he cannot
ask this Court to address it and to dispose of this appeal on that basis. In
addition, I am satisfied that this Court’s allowing the appellant to proceed on
that issue would seriously prejudice the respondent, who was deprived of his
right to file evidence on that issue.
[15]
Accordingly, I would dismiss the appeal, but
without costs, since the Attorney General of Canada has waived his costs before
this Court and those to which he would have been entitled owing to the decision
of Justice Montigny.
“M. Nadon”
“I agree.
Pierre Blais C.J.”
“I agree.
Johanne Trudel J.A.”
Certified true
translation
Sarah Burns
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