Date: 20100708
Dockets: A-519-09
Citation: 2010 FCA 183
CORAM: BLAIS
C.J.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
SHELDON BLANK
Appellant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
This is an
appeal from the judgment of Justice de Montigny of the Federal Court: 2009 FC
1221. The Federal Court dismissed the appellant’s application for judicial
review.
[2]
In his
application for judicial review and in this appeal, the appellant seeks access
to records under the Access to Information Act, R.S. 1985, c. A-1 (the
“Act”). He raises several grounds of review. For the reasons set out below, I
would dismiss the appeal, with costs.
A. The facts
[3]
On January
21, 2002, the appellant first sought records from the respondent. The records
concerned the respondent’s conduct of a prosecution, later dropped, against the
appellant and Gateway Industries Ltd. under the Fisheries Act, R.S.
1985, c. F-14.
[4]
The
Federal Court has set out, in great detail (at paragraphs 4-21), the
complicated history of the dealings among the appellant, the respondent and the
Office of the Information Commissioner of Canada stretching all the way back to
2002. This history shows some of the factors that made this matter complicated
and lengthy.
[5]
Although
the first request was in January 21, 2002, by January 30, 2003 the appellant
had made a total of 67 requests under the Act, and also the Privacy
Act, R.S. 1985, c. P-21. The Department of Justice says that it has
reviewed 60,000 pages of material in response; the appellant says less was
reviewed, but he still estimates it at over 25,000 pages. Since many pages were
concerned with or were related to the conduct of the prosecution, issues of
solicitor-client privilege frequently arose. The resulting page-by-page review took
much time.
[6]
The
appellant involved the Office of the Information Commissioner of Canada by way of two complaints. The
first was on October 2, 2002 and concerned alleged delay by the respondent. The
second, on November 7, 2002, was broader and concerned the respondent’s failure
to identify all of the documents responsive to his request and its improper
application of exemptions under the Act.
[7]
The Office
of the Information Commissioner is an independent and impartial agency charged
with the responsibility of investigating complaints under the Act. In this
case, it has been investigating issues such as whether the respondent has been acting
in bad faith, the timeliness of the respondent’s response, the discrepancy
between the numbers of documents originally identified as responsive and the
number of documents released, missing documents, the respondent’s identification
of the documents, and the respondent’s assertions of exemptions, in particular
solicitor-client privilege. The scope and application of that privilege was
taken to the Supreme Court of Canada: Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006
SCC 39.
[8]
The
Office’s investigation stretched over five years. Of note is that in his oral
and written submissions in this Court, the appellant did not complain about the
conduct of the Office in its lengthy investigation.
[9]
On
September 5, 2008, the Office released an investigation report. Two of the
issues considered in the report were highly relevant to the appellant’s
application for judicial review in the Federal Court: the application of the
solicitor-client privilege exemption in section 23 of the Act, and missing
records.
[10]
On the
solicitor-client privilege issue, the Office concluded that “[w]e are satisfied
that the records which remained exempted qualify as solicitor-client privilege
for the purposes of section 23.” It added that “proper discretion was
exercised” and “the privilege was not waived.”
[11]
On the
missing documents issue, the Office observed that it sent one of its
investigators to Winnipeg “to search through some 40
boxes of records to locate additional records” and that it found and released
some records to the appellant. Later, after receiving a final release of
documents, the appellant provided additional evidence to the Office suggesting
that documents were missing. The Office made a second trip to Winnipeg for a follow-up search. In
the end, on the missing documents issue, the Office wrote the following in its investigation
report:
Our investigation has
revealed that, by their own admission, Justice officials cannot guarantee that
all the records created were retained. Nor were we able to determine with
certainty which records were, or could, be responsive to your request.
Based on the above, we
are unable to definitively report to you that you have received all of the
records to which you are entitled under the Act. We assure you that we have
done everything possible to find relevant records and review them for possible
release to you.
[12]
Soon after
receiving this report, the appellant commenced an application for judicial
review in the Federal Court. As mentioned above, the Federal Court dismissed
the appellant’s application for judicial review. Its reasons for doing so will
be set out below, as I consider each of the grounds for appeal raised by the
appellant in this Court.
B. The appellant’s grounds for
appeal
[13]
In his
notice of appeal to this Court, the appellant has raised many overlapping
grounds of appeal. He asks this Court to reverse a number of the Federal
Court’s rulings and correct its reasons.
[14]
A consideration
of the appellant’s written and oral submissions has served to clarify the
issues. Further, at the hearing of this appeal, the Court permitted the
appellant to file seven compendia of documents from the appeal record, each of
which was devoted to a particular issue in the notice of appeal. These
materials have given the Court an even clearer picture of the precise issues
being raised on appeal by the appellant and his submissions on each. The Court
is grateful to the appellant for providing these compendia to us.
[15]
The
grounds of appeal and submissions made by the appellant can be grouped into
four categories:
(1) The
interpretation and application of the exemption for solicitor-client privilege
under section 23 of the Act and whether the privilege was waived (paragraphs 1,
5, 6, 7 and 8 of the relief sought in the notice of appeal).
(2) Whether
the Department engaged in bad faith or otherwise misconducted itself in
carrying out its responsibilities under the Act (paragraphs 3 and 6 of the
relief sought in the notice of appeal).
(3) The
issue of missing and unprocessed documents and whether the appellant has
received everything to which he is entitled under the Act (paragraphs 2 and 4
of the relief sought in the notice of appeal).
(4) Issues
relating to costs (paragraph 9 of the relief sought in the notice of appeal).
C. Analysis
(1) The interpretation
and application of the exemption for solicitor-client privilege under section
23 of the Act and whether the privilege was waived
[16]
In this
case, the respondent invoked the solicitor-client privilege exemption under
section 23. Following an analysis of the relevant case law (especially this
Court’s decision in 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 F.C.
421 and Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9), the
Federal Court set out the standard of review of the respondent’s decision as
follows (at paragraph 31):
…two different standards
of review [are to be followed] with regard to the respondent’s decision to
refuse to release information pursuant to the solicitor-client privilege
exemption in s. 23 of the Act. It must apply the correctness standard to review
the decision that the withheld information falls within the s. 23 statutory
exemption, and the standard of reasonableness to the discretionary decision to
refuse to release exempted information. Of course, the Court must also consider
whether the discretion was exercised in good faith and for a reason rationally
connected to the purpose for which it was granted.
[17]
For the
purposes of this appeal, we accept this as the standard of review.
[18]
The
Federal Court (at paragraphs 34-44) concluded that the respondent was justified
in claiming solicitor-client privilege over many documents. It added that the
respondent appropriately severed privileged material from the documents,
allowing portions of the documents to be revealed to the appellant. I agree
with the Federal Court’s conclusion and I see no reviewable error in its
reasons on this point.
[19]
On the
solicitor-client privilege issue, the appellant alleged that three particular
pages withheld from him were not privileged because they “demonstrate
misconduct.” At a general level, the misconduct alleged by the appellant
concerns certain matters in the earlier criminal prosecution: the improper
swearing of an affidavit, the failure of the Crown to give him disclosure,
limitations issues, and other irregularities in the prosecution. Having not
seen these documents, the appellant’s assertion that the documents “demonstrate
misconduct” is purely speculative. I would add that the appellant raised much
of this alleged misconduct before Manitoba Court of Queen’s Bench in his
prosecution. That court’s reasons for judgment show no findings that can be
said to constitute misconduct.
[20]
Further,
“misconduct” by itself is not a recognized exception to the privilege that the
respondent asserts over the three pages. There is an exception for “communication[s]
in furtherance of a criminal purpose” or to perpetuate a tort: Solosky v.
Canada, [1980] 1 S.C.R. 821 at pages 755-757 and Alan W. Bryant, Sidney N.
Lederman and Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed.
(Markham: LexisNexis Canada, 2009) at pages 937-939. Where clients seek out a
lawyer “for the purpose of assisting [them] to perpetuate a crime or fraud,
there [is] no privilege”: Bryant et al., supra at page 937.
[21]
This
exception does not apply to the three pages that the appellant seeks. During
the course of the hearing, the appellant invited the Court to examine these
three pages, which were appended to a confidential affidavit before this Court.
The respondent did not object to this Court reviewing these pages. Having
reviewed these pages, I conclude that there is no basis for this Court overturning
the Federal Court’s conclusion that these pages are privileged. Further, these pages
are not “communication[s] in furtherance of a criminal purpose” or to
perpetuate a tort and so the documents remain privileged.
[22]
On the
issue of waiver of privilege, the appellant submitted that the respondent lost
its right to claim solicitor-client privilege over the entire prosecution file
because the Crown made submissions on the issues in open court in the
prosecution. The Federal Court concluded (at paragraph 46) that it was “unable
to find any evidence that would support a claim for waiver” that would result
in the whole file being released. This is a factual finding and can be set
aside only on the basis of palpable and overriding error, which the appellant
has not demonstrated. In addition, as a matter of law, submissions in open
court that reveal advice otherwise covered by solicitor-client privilege could
waive any privilege attached to that advice, absent any possible defence such
as inadvertence; but the waiver would extend only to that specific advice, and
certainly not to the entire prosecution file: Bryant et al., supra at
pages 957 to 959.
[23]
Before the
Federal Court, the appellant suggested that the respondent’s inconsistent
approach to solicitor-client privilege gave rise to waiver: the respondent
claimed that some documents responsive to access requests were covered by
solicitor-client privilege, but it released these same documents in response to
other access requests without asserting privilege. The Federal Court concluded (in
paragraph 47) that, as a matter of law, waiver would not apply. It added that,
in any event, a number of documents affected by this issue were released during
the hearing.
[24]
The issue
is now moot. The appellant already has these documents under other access
requests and perhaps also at the hearing in the Federal Court. Nothing in the
record or submissions suggests that there is still a live controversy with
practical import for the parties concerning these documents. I would add that
the material before the Court is insufficient to determine these issues. The
appellant has raised this issue in general terms, but in his notice of appeal
and his submissions has failed to particularize what documents, if any, are
still in issue. He has also failed to identify the factual circumstances
relevant to waiver pertaining to each document or category of documents. The
transcript of the proceedings, the appellant’s compendia and the memorandum of
the respondent shed no further light on the matter. As it is unnecessary to do
so, I refrain from comment on the Federal Court’s legal conclusion that, as a
matter of law, waiver would not apply in these circumstances.
(2) Whether
the Department engaged in bad faith or otherwise misconducted itself in
carrying out its responsibilities under the Act
[25]
The
appellant submitted, both in the Federal Court and in this Court that the
respondent’s decision was made in bad faith by Crown officials who have the
most to lose in the appellant’s ongoing civil action for damages against the
Crown for fraud, conspiracy, perjury and abuse of powers. Related to this, the
appellant submitted that under the Act the respondent should have disclosed to
him material that was improperly withheld from him in the criminal prosecution,
contrary to R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1992] 1 W.W.R. 97.
[26]
The
Federal Court rejected these submissions. It began by acknowledging that it was
bound to consider whether the respondent exercised its discretion concerning
the appellants’ access requests in good faith and for rational reasons (at
paragraph 52). The Federal Court noted that the appellant had previously made
these submissions to some extent, unsuccessfully: Blank v. Canada (Minister of the Environment), 2006 FC 1253, 300 F.T.R. 273;
R. v. Gateway Industries Ltd., 2002 MBQB 285, [2003] 2 W.W.R. 671 (one
of the rulings in the appellant’s prosecution). The Federal Court added that
the appellant adduced no concrete evidence to support his allegations of bad
faith and that it was not the role of the Federal Court to decide whether the Crown
had fulfilled its disclosure obligations in the criminal prosecution.
[27]
I substantially
agree with the reasons of the Federal Court on this point. On the issue of whether
there was bad faith in the respondent’s processing of the access requests, the
Federal Court had evidence capable of supporting the conclusion it made. I
would add that if the respondent were acting in bad faith concerning the
appellants’ access requests, the Office likely would have detected it in its
five-year investigation and would have condemned it in its investigation report.
It did not.
(3) The
issue of missing and unprocessed documents and whether the appellant has
received everything to which he is entitled under the Act
[28]
Both in
the Federal Court and in this Court, the appellant submitted that the
respondent deliberately failed to locate and process all of the records that
were responsive to his request.
[29]
Although
there is no evidence whatsoever to support deliberate misconduct by the
respondent, the appellant’s submission gains some force from the findings in
the Office’s investigation report. As noted above, the Office reported that “by
their own admission, Justice officials cannot guarantee that all the records
created were retained” and that the Office could not “determine with certainty
which records were, or could be responsive…”. It added that it was “unable to
definitively report to you that you have received all of the records to which
you are entitled under the Act.” It concluded that it had “done everything
possible to find relevant records and review them for possible release…”.
[30]
The
Federal Court rejected the appellant’s submission, finding that the efforts of
the respondent and the Office were significant and that they did everything
they could to locate and produce documents to the appellant (at paragraph 50):
Despite the applicant’s
assertions, the facts prove otherwise. The respondent, in fact, went to great
lengths to locate and process all of the documents relevant to the request,
albeit not as expeditiously as it should have done. Several consultations with
the Winnipeg Regional Office and other departments were held to determine what
could be released. The DOJ ATIP Office also cross-referenced numerous pages
released in other requests or as the result of other court proceedings, and
cooperated with the Information Commissioner investigators. As a result, three
further releases of documents were made to the applicant between 2002 and 2008,
thereby providing him with another 800 pages or so. While not all documents
were collected and released at first, subsequent searches and releases ensured
that the applicant was provided with most of the information to which he is
entitled. It may well be that some documents created by the respondent were not
retained or located, as admitted by the respondent itself. But I am satisfied
that everything that could realistically be done to comply with the applicant’s
Access request has been done. Indeed, the [Office of the Information
Commissioner] itself reported that they have done “everything possible to find
relevant records and review them for possible release” to the applicant,
therefore recording his complaint as resolved. Once again, the considered
opinion of the Commissioner is a factor to be considered on judicial review.
[31]
The
Affidavit of Francine Farley is the primary basis for the Federal Court’s
factual findings in this passage. Many of the statements in the affidavit,
particularly the important statements that appear in paragraph 25 of the
affidavit, are based not on personal knowledge or actual experience, but only
on a “review of the file.” As for the Federal Court’s conclusion that
“everything that could realistically be done to comply with the [appellant’s]
access request has been done,” another judge of that Court looking at the
somewhat brief and unparticularized evidence in the affidavit might not have
reached that conclusion with the same level of certainty, or might have reached
a different conclusion.
[32]
However,
this is an appeal from a judgment on an application for judicial review. In
such a matter, this Court is not allowed to reweigh the evidence or retry the
facts. This Court cannot interfere just because another judge might have made
different findings of fact on this evidentiary record. The threshold for
interference by this Court is much higher than that: Housen v. Nikolaisen,
[2002] 2 S.C.R. 235, 2002 SCC 33.
[33]
The facts
as found by the Federal Court must be accepted by this Court, unless the
appellant demonstrates palpable and overriding error: Housen, supra.
Examples of palpable and overriding error include a total absence of evidence
in support of a factual finding, or a factual finding that cannot be made
rationally or as a matter of logic on the basis of the evidence in the record: H.L.
v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25.
[34]
The
appellant has failed to demonstrate palpable and overriding error. There was
evidence upon which the Federal Court could find that the respondent was
compliant with its obligations to search, review, evaluate and produce
available and releasable documents.
[35]
It is true
that in its investigation report the Office found that documents were missing and
that it had difficulty in determining with certainty which records were or
could be responsive. This is not necessarily evidence that shows that the
respondent is breaching its obligations under the Act. It must be remembered
that, as mentioned in paragraphs 4 and 5, above, this was a most complex and
challenging matter, with 67 access to information requests triggering a review
of tens of thousands of pages of documents located at multiple locations,
including sealed court files. In addition, as the Federal Court noted, an
important piece of evidence before it was the investigation report of the
independent and impartial Office, which had been investigating this matter for
approximately five years. That report deserves significant weight: Blank v. Canada (Minister of Justice), 2005 FCA 405, 344 N.R. 184
at paragraph 12. As mentioned above, the Office reported that “everything
possible to find relevant records and review them for possible release” to the
appellant had been done. Finally, the appellant cross-examined Ms. Farley on
her affidavit and a transcript of that cross-examination was before the Federal
Court and this Court. That cross-examination did not reveal instances of
non-compliance that the Federal Court needed to address.
[36]
I would
add that, in making its factual findings based on the evidence, the Federal
Court was mindful of the importance of the appellant’s rights under the Act. At
the outset of its reasons (at paragraphs 23-25), it correctly stated that one
of the purposes of the Act, as expressed in subsection 2(1), “is to provide the
public with a right of access to information contained in records held by the
government” and that this right should be facilitated, not frustrated, within
the limits of the law: see Dagg v. Canada (Minister of Finance), [1997]
2 S.C.R. 403, 148 D.L.R. (4th) 385 at paragraphs 59-63. The Federal
Court evaluated the appellant’s submissions with those purposes very much front
of mind, but rejected the appellant’s submissions, based on a rational review
of the evidence in the record, without any legal error.
(4) Issues relating to
costs
[37]
In the
Federal Court, the appellant submitted that a significant penalty should be
imposed upon the respondent because of its heinous conduct. The Federal Court
rejected the appellant’s submission and, instead, ordered costs against the
appellant, consistent with the result on the application and the factual
findings it made. The appellant appeals this costs award.
[38]
There are
no grounds to interfere with the Federal Court’s discretionary, fact-based
costs decision. Like the Federal Court, I would also order that costs follow
the result of this appeal.
D. Proposed disposition
[39]
Therefore,
for the above reasons, I would dismiss the appeal, with costs.
"David
Stratas"
“I
agree
Pierre Blais C.J.”
“I agree
Eleanor R. Dawson J.A.”
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