Date: 20070917
Docket: A-515-06
Citation: 2007 FCA 289
CORAM: NOËL
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
SHELDON BLANK
Appellant
and
THE MINISTER OF THE
ENVIRONMENT
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
Following
the collapse of the Crown's prosecution of Mr. Blank and his company Gateway
Industries Ltd., Mr. Blank commenced an action for malicious prosecution. In support
of that action, Mr. Blank filed various requests for disclosure under the Access
to Information Act, R.S.C. 1985, c. A-1 (the Act). The last of those
requests was disposed of by Russell J. of the Federal Court in a decision
reported at 2006 FC 1253, [2006] F.C.J. No. 1635 (Blank v. Canada (Minister
of the Environment). Mr. Blank now appeals from that decision on grounds
which have become familiar to this Court, namely the adequacy of the severance
ordered by the Court, the allegation that the Crown is using solicitor-client
privilege to conceal evidence of its own wrong-doing, and the public interest
in disclosure notwithstanding the existence of a claim of privilege.
[2]
Mr. Blank
complains as well that documents which were ordered disclosed, and which were
disclosed in other proceedings, have been declared exempt in these proceedings
when they have lost their exempt status. This matter was argued before Russell
J. on June 1, 2006, and his decision rendered on October 19, 2006. The Supreme
Court heard argument on Mr. Blank's appeal with respect to litigation privilege
on December 13, 2005, and rendered its decision on September 8, 2006. Thus, at
the time the matter was argued before Russell J., the status of documents
subject to a claim of litigation privilege had not been decided, as a result of
which the Crown maintained its position with respect to those documents. Mr.
Blank's complaint relates to a list of documents which the Minister of the
Environment forwarded to the Minister of Justice in respect of which a claim of
privilege had been made. Some of those documents were released to Mr. Blank
following the decision of the Supreme Court. Mr. Blank believes that some of
the documents appearing on the list in question, which appears at pages 55 to
59 of Volume II of the Appeal Book, were released to him following the decision
of the Supreme Court but were nonetheless declared to be exempt from disclosure
by Russell J.
[3]
One answer
to Mr. Blank's complaint is that if the documents were disclosed to him in another
file, then he has the documents and the purposes of the legislation have been
met. Mr. Blank has a different concern. He is unable to cross-reference the
documents which were released to him following the Supreme Court's decision
with those which Russell J. declared to be exempt. As a result, he is unable to
satisfy himself that he has all the documents to which he is entitled in the
present file.
[4]
As a
result, Mr. Blank says that Russell J. was bound to review the list of
documents which were forwarded to the Department of Justice and to satisfy
himself that the documents which he declared exempt were not on that list. I
disagree. Russell J. was required to rule on the disclosure of the documents
which were before him. He carefully catalogued them and identified those which
were in issue. He distinguished between documents where litigation privilege
was claimed and those where legal advice privilege was claimed, as well as
those where the claim of privilege did not distinguish between the two types of
privilege. He then reviewed the contentious documents and ruled on their
disclosure on the strength of the information which the parties provided him. He
ordered disclosure of all documents where the claim of exemption was based on
litigation privilege. Where the exemption claimed did not distinguish between
the two branches of privilege, he reviewed the documents to satisfy himself
that a valid exemption existed. All of this is carefully recorded in Schedules
A and B to his decision. In light of those circumstances, the fact that further
documents were exchanged between the parties after they appeared before him
was, for his purposes, immaterial.
[5]
Mr. Blank
has a deeply flawed view of the effect of section 25 of the Act which deals
with severance. Invoking notions of statutory interpretation and parliamentary
supremacy, he argues that the obligation to sever protected information set out
in section 25 can be used to limit the exemption in favour of solicitor client
privilege. Section 25 is a straight-forward disposition:
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25. Notwithstanding
any other
provision of this Act, where a request is made to a government institution
for access to a record that the head of the institution is authorized to
refuse to disclose under this Act by reason of information or other material
contained in the record, the head of the institution shall disclose any part
of the record that does not contain, and can reasonably be severed from any
part that contains, any such information or material.
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25. Le responsable d'une
institution fédérale, dans les cas où il pourrait, vu la nature des
renseignements contenus dans le document demandé, s'autoriser de la présente
loi pour refuser la communication du document, est cependant tenu, nonobstant
les autres dispositions de la présente loi, d'en communiquer les parties
dépourvues des renseignements en cause, à condition que le prélèvement de ces
parties ne pose pas de problèmes sérieux.
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[6]
Section 25
is designed to avoid the possible non-disclosure of an entire record on the
ground that a part of the record contains exempt information. All that section
25 requires is that the exempt information be severed from the record and that the
balance of the record be disclosed. This Court has specified that where the
exemption is challenged, the requester must be given sufficient identifying
information with respect to the document to be able to identify it and to
challenge the claimed exemption: see Blank v. Canada (Minister of the Environment), 2001 FCA 374, [2001] F.C.J.
No. 1844. This does not include information which would disclose the subject
matter of the privileged communication: see Blank v. Canada (Minister of Justice), 2007 FCA 147, [2007] F.C.J.
No. 523, at para. 7.
[7]
None of
this supports the view that section 25 somehow reduces the scope to be given to
the exemptions provided for in the Act. Once the reviewing authority concludes
that a record contains exempt information, it must then address its mind to the
possibility of excising the exempt information from the record and disclosing
the balance of the document, subject to the requirement that the remaining
parts retain some coherence: see Blank v. Canada (Minister of Justice), 2005 FC 1551, [2005] F.C.J.
No. 1927, at para. 36. There is no possible conflict between section 25 and the
provisions of the Act which provide exemptions to disclosure. Section 25 simply
provides that those parts which are not exempt continue to be subject to
disclosure if disclosure is meaningful. The fact that exemption in favour of
solicitor-client privilege has its origins in the common law is irrelevant to
the operation of section 25. It is the fact of exemption which is material not
the source of the exemption.
[8]
Russell J.
reviewed each of the documents listed in Schedule B and determined that the
claim of litigation privilege was to be set aside and ordered disclosure of
portions of records for which a claim of legal advice privilege was made. Given
that Russell J. properly stated the test for severance and applied it to each
of the documents in issue, it is not necessary for us to review his work on the
basis of Mr. Blank's mistaken views as to the effect of section 25.
[9]
Mr. Blank
argues in this case, as he has in each of the other cases he has pursued to
this Court, that the Crown is using solicitor-client privilege to conceal
evidence of its wrongdoing. In a related argument, he complains that Russell J.
erred in imposing on him the burden of proving that disclosure was required
rather than giving effect to the Act's premise that disclosure rather than
non-disclosure was the norm. In effect, Mr. Blank complains that the Court is
not sufficiently attuned to the problem which confronts him, namely that the
evidence of the Crown's wrongdoing is in files which the Crown, the alleged
wrong-doer, refuses to disclose on grounds of solicitor-client privilege.
[10]
On at
least two occasions, this Court has reviewed documents which were the subject
of the same argument and in both cases found that there were no grounds for
breaching solicitor-client privilege: see Blank, 2007 FCA 147, [2007]
F.C.J. No. 523, at para. 19 and Blank v. Canada (Minister of Justice) 2004 FCA 287, [2004] F.C.J.
No. 1455, at para. 64. It is not sufficient to allege wrongdoing and to insist
upon a review of the documents for which the Crown claims an exemption. The
onus is upon Mr. Blank to demonstrate a basis for his allegation of wrongdoing.
To date, he has failed to do so.
[11]
Mr. Blank's
argument as to the public interest in disclosure is essentially the same
argument. It assumes that where there is a challenge to the Crown's claim of
privilege, the privilege must yield because of the public interest in
disclosure. The premise which underlies this reasoning is that there is no
principled reason which would justify the Crown standing on its privilege. We have
not been given any reason to believe that the claim of privilege has not been
exercised appropriately in this case.
[12]
For these
reasons, we are of the view that this appeal should be dismissed with costs.
"J.D.
Denis Pelletier"
"I
agree
Marc Noël J.A."
"I
agree
M.
Nadon J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-515-06
(APPEAL FROM
AN ORDER OF THE FEDERAL COURT DATED OCTOBER 16, 2006, NO. T-567-05)
STYLE OF CAUSE: SHELDON BLANK v. THE
MINISTER OF THE ENVIRONMENT
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: September 12, 2007
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
DATED: September 17, 2007
APPEARANCES:
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Sheldon Blank
|
ON HIS OWN BEHALF
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Dhara Drew
Duncan Fraser
|
FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
|
|
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
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