Docket: T-2052-16
Citation: 2018 FC 344
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 28, 2018
PRESENT: The Honourable Mr. Justice Annis
| BETWEEN:
|
| PMG TECHNOLOGIES INC.
|
| Applicant
|
| and
|
| TRANSPORT CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review dated November 29, 2016, under section 44 of the Access to Information Act , RSC 1985, c. A-1 [ATIA], of the decision [Decision] made by the respondent, Transport Canada [Transport Canada], and communicated to the applicant, PMG Technologies Inc. [PMG], in a letter dated November 2, 2016, to disclose to a third party the documents attached to said decision, in the context of access to information request A-2016-00032 [the Access to Information Request].
[2]
For the following reasons, the application is allowed in part.
II.
The facts
[3]
The applicant operates the Centre d’essais de véhicules automobiles [CEVA] under an operating agreement with Transport Canada dated October 25, 2007, for the CEVA site.
[4]
As a contractor operating a government institution, PMG communicates with Transport Canada representatives on a regular basis regarding the CEVA’s activities.
[5]
On July 10, 2014, the City of Blainville provided formal notice to PMG, Transport Canada and G1 Tour, a PMG customer, to stop or have stopped all luxury sport car rental events by G1 Tour or anyone else. According to the City, the named parties were violating municipal noise and zoning by-laws. After failing to comply with the formal notice, counsel for the City of Blainville stated that they were given the mandate to undertake legal proceedings.
[6]
On July 21, 2014, the City of Blainville and five residents filed a motion for an interim injunction, an interlocutory motion and a permanent injunction before the Terrebonne Superior Court against PMG and G1 Tour. Transport Canada was not named as a respondent in the motion.
[7]
By letter dated May 26, 2016, the Transport Canada Chief, Access to Information and Privacy, notified the director general of PMG that an Access to Information Request had been filed and that it was intended to obtain [translation] “correspondence between Transport Canada and PMG as part of their landlord–tenant relationship with respect to the use of the leased premises and, incidentally, its total or partial subletting”
, as well as correspondence with the applicant regarding to the rental activities as advertised on its website.
[8]
Transport Canada subsequently invited PMG to file its written submissions to show cause why the documents attached to the letter dated May 26, 2016, should not be subject to full disclosure.
[9]
PMG sent its submissions to Transport Canada by letter dated June 30, 2016, raising several counts of exception to disclosure, including litigation privilege.
[10]
Negotiations between PMG and Transport Canada regarding what was to be disclosed took place on August 17, 2016, and August 22, 2016.
[11]
By a final letter dated November 2, 2016, Transport Canada informed PMG of the Decision, following the further submissions filed by the applicant. This decision involves disclosing to the author of the Access to Information Request documents attached to the letter dated November 2, 2016, [the Documents] and not having the reference consult witheld [sic].
[12]
Before the hearing, the parties agreed that certain communications were in fact subject to litigation privilege. Accordingly, this application for judicial review involves disclosure of redacted copies of communications between the parties including pages 1, 8, 24, 34, 36, 37 and 38, and full exclusion of the internal memo on pages 40, 41 and 42 of the Documents.
III.
Legislative framework
[13]
Section 23 of the ATIA is relevant in this case:
| Solicitor-client privilege
|
Secret professionnel des avocats
|
| 23 The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
|
23 Le responsable d’une institution fédérale peut refuser la communication de documents contenant des renseignements protégés par le secret professionnel qui lie un avocat à son client.
|
IV.
Issues and standard of review
[14]
At the hearing, the respondent stated that it would not attempt to exercise its discretion as to whether it was nonetheless appropriate to disclose the Documents, even though it has been established that they are privileged. Consequently, the sole issue before this Court is whether the applicant discharged its burden of proof with respect to litigation privilege applicable to the Documents or certain excerpts thereof.
[15]
Nothwithstanding the primary purpose of the ATIA, discretion exercised by a federal institution must be consistent with the objectives of the effective administration of justice and the protection essential to the proper operation of the adversarial process, which includes applying the principles of litigation privilege. It is common ground that this issue is subject to the correctness standard: Blank v. Canada (Justice), 2006 SCC 39 at paras 27−31 [Blank]; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 FC 268.
V.
Analysis
A.
State of the Law
[16]
Litigation privilege “[…] is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process) ”
. Blank, supra above at para 28, citing R. J. Sharpe (now judge of the Court of Appeal), “Claiming Privilege in the Discovery Process”
(1984) Spec Lect of the LSUC, 163 at pp 164−165.
[17]
The party invoking litigation privilege must demonstrate its existence. To do so, it must establish that the primary or dominant purpose of the documents in question is preparation for litigation and that this litigation is ongoing or reasonably apprehended: Lizotte v. Aviva Insurance Company of Canada, [2016] 2 S.C.R. 521 at para 19; Blank, above, at para 60.
[18]
The British Columbia Court of Appeal recently set out the parameters required for a claim to privilege in Gichuru v. British Columbia (Information and Privacy Commissioner), 2014 BCCA 259 at para 32 [Gichuru], citing Keefer Laundry Ltd v. Pellerin Milnor Corp et al, 2006 BCSC 1180 at paras 96−99, which the Court also adopts, as follows:
[96] Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed:
1. that litigation was ongoing or was reasonably contemplated at the time the document was created; and
2. that the dominant purpose of creating the document was to prepare for that litigation.
(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 (CanLII) at paras. 43-44.)
[97] The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)
[98] To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.
[19]
In Gichuru, the Court also recognized at paragraphs 38 and 39 that these requirements were not necessary if the dominant purpose is plain and obvious on the face of the documents.
[20]
The respondent’s main objection in this case is that based on the Documents under review, the applicant has failed to sufficiently establish the circumstances to support a litigation privilege claim.
[21]
The Court agrees with the respondent that the explanation for the privilege claim provided by the applicant, as stated in paragraph 41 of Gilles Marleau’s confidential affidavit dated January 31, 2017, lacks detail. The affidavit states that the Documents deal with [translation] “communications between PMG representatives and Transport Canada representatives that relate to analyses by PMG’s counsel regarding the state of the law, details of defence strategies and collaboration between PMG and Transport Canada to defend against the City of Blainville’s proceedings.”
Accordingly, unless the Court finds that the Documents demonstrate on their face their dominant purpose of the ongoing litigation between the applicant and the City of Blainville, the privilege claim should be dismissed.
[22]
Despite this, the Court finds that the respondent has come a long way in implicitly supporting the applicant’s cause by agreeing to redact extensive excerpts of most of the Documents in issue (including those on pages 013, 018, 024-025, 028-029, 038 and 042). These redactions can only be based on the acceptance that their contents merit protection by litigation privilege.
[23]
Although the respondent did not implicitly recognize the application of litigation privilege, the Court is of the view that there is sufficient evidence of the plain and obvious dominant purpose of the ongoing litigation in the majority of the contentious correspondence between the applicant and Transport Canada officials. This correspondence demonstrates that the parties share a common interest in a potential negative outcome arising from the litigation as a result of zoning changes or other restrictions that could result in the continuation of the application for a permanent injunction. The corrective action sought by the municipality could have an adverse effect on the use of the property owned by Transport Canada and used by the applicant.
[24]
The Court finds that the applicant and Transport Canada shared a common interest in defending themselves against Blainville’s legal proceedings. Thus, the principles of common interest privilege apply in the same way, such that the disclosure of information by the applicant to Transport Canada does not constitute a waiver to any privileged information: Buttes Gas and Oil Co v Hammer, [1980] 3 All ER 475 (HL); Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 at paras 23−24. The Court also entertains that the Documents in question make their purpose plain and obvious based on their start date, July 11, 2014, when the applicant attempted to convince Transport Canada to participate in its dispute against the municipality. The communications intended to obtain the support of interested parties, namely to intervene as a co-respondent or simply to provide help with the dispute, are certainly protected by litigation privilege.
[25]
The Court’s only concern is whether a disclosure by a client to a third party concerning involvement and assistance with a dispute, not by the client’s counsel, or sufficiently detailed to be made at the request of the client’s counsel, is subject to litigation privilege. Privilege applies both to counsel and persons who are not represented, but there does not appear to be any cases where a represented client undertakes on their own initiative to discuss privileged information with a third party. In the Court’s view, privilege should be upheld, perhaps even on the basis of an involuntary waiver of privilege. In any event, given the respondent’s acceptance of the litigation privilege applicable to the other communications, without raising any issue relating to waiver of shared interest privilege, the Court declines to deal with the matter in this case.
[26]
In summary, the Court finds that the respondent’s arguments with respect to the adequacy of the dominant purpose evidence do not apply, since it recognizes that the extensive correspondence between the applicant and Transport Canada is protected by litigation privilege, and the correspondence itself clearly indicates that the disputed information was created for the purpose of defending a shared interest against the ongoing dispute with the municipality. The Court’s analysis is therefore limited to considering the objections in the disputed Documents, namely whether each specific piece of correspondence should be recognized as falling within the area of personal privacy created by litigation privilege.
B.
Analysis of correspondence in the Documents allegedly protected by litigation privilege
[27]
The dispute between the parties deals with the disclosure of specific excerpts found in the Documents involving exchanges between the applicant and Transport Canada, as well as the disclosure of an internal memo containing the applicant’s instructions to an employee for the purpose of obtaining details relevant to the municipality of Blainville. The specific pages of the Documents are listed in paragraph 13 of Gilles Marleau’s confidential affidavit dated March 23, 2017, in Attachment GMC-3.
(1)
Applicant’s email to Transport Canada dated July 11, 2015 (page 001 of GMC-3)
[28]
The respondent already redacted short excerpts on the page as being protected by litigation privilege.
[29]
The Court accepts that the disputed excerpt beginning with “PMG entered”
and ending with “the complaints”
is not protected by litigation privilege. The correspondence provides basic facts that should be disclosed during the discovery process beforehand or the trial.
[30]
The rest of the document, which already includes some excerpts protected by litigation privilege, is protected as a work product of the applicant regarding the dispute with Blainville. Furthermore, it is noted that the paragraph starting with “Of concern”
describes that shared interest of the parties in the dispute, as well as the involvement of counsel.
(2)
Series of emails between the applicant and Transport Canada dated from July 21 to 23, 2014 (pages 008-9 of GMC-3)
[31]
The Court finds that the excerpts to whose disclosure the applicant objects should be subject to litigation privilege. The exchange of emails refers to the action taken by the applicant with respect to the dispute and Transport Canada’s questions regarding matters relating to the dispute.
(3)
Emails between the applicant and Transport Canada dated July 25 and 28, 2014 (page 024 of GMC-3)
[32]
The majority of page 024, which includes parts of page 025, was redacted as privileged. Likewise, the first two paragraphs from the Transport Canada employee relate to the strategy that addresses the shared concerns about the litigation outcomes and the positive leverage factors in in support of the applicant’s case.
(4)
Applicant’s email to Transport Canada dated August 26, 2014 (page 034 of GMC-3)
[33]
The Court dismisses the claim to litigation privilege as requested with respect to this document, insofar as its primary purpose is to provide responses to complaints contained in a briefing note to the Minister.
(5)
Transport Canada emails to the applicant dated August 25 and 26, 2014 (page 036 of GMC-3)
[34]
The excerpts beginning with the words “As you point out”
in the third paragraph until the words “their noise case”
at the end of the fifth paragraph, which contain previously redacted information in each of the three paragraphs, also constitute correspondence protected by litigation privilege. The impugned portions of the paragraphs refer to shared concerns and assistance from Transport Canada, as well as shared action taken or to be taken.
(6)
Email between Transport Canada and the applicant dated August 25, 2014 (page 037 of GMC-3)
[35]
Once again, the important portions of the Document were drafted in recognition of the fact that it was privileged communication. Transport Canada asked for an update through a series of questions to which the applicant responded, all relating to the ongoing dispute and strategic concerns. The communication is protected by litigation privilege.
(7)
Applicant’s email to Transport Canada dated May 7, 2015 (page 038 of GMC-3)
[36]
The first two paragraphs are not protected by litigation privilege, insofar as they merely relate facts that should be disclosed as part of examinations for discovery or the trial and whose disclosure does not constitute an incursion in the privileged area of the dispute.
[37]
The following three paragraphs beginning with the words “Afin d'éviter”
[translation] “In order to avoid”
and ending with “Transport Canada”
are protected by litigation privilege. They describe problems and intervention strategies, tasks to be completed within a certain timeframe and requests for assistance from Transport Canada. All this information relates to strategies and the conduct of the ongoing dispute.
[38]
The last two paragraphs, including the reference to the attached summary, which comprises the three last pages (040–042) containing the impugned communications, are not challenged as being subject to litigation privilege.
(8)
Internal memo from the applicant dated May 5, 2015, attached to the email dated May 7, 2015 (pages 040 to 042 of GMC-3)
[39]
The memo was prepared specifically for the dispute and already contains extensive portions that were redacted in recognition of the fact that the communication is protected by litigation privilege. It is not obvious to the Court why the entire Document, which was prepared specifically for the purposes of a dispute and communicated to Transport Canada along with the analysis carried out by counsel for the applicant, should not be subject to litigation privilege.
VI.
Conclusion
[40]
Since the results are somewhat mixed, although primarily in favour of the applicant, the applicant shall be awarded 75% of its costs, in accordance with Column III of the Federal Court tariff: Federal Courts Rules, SOR/98-106, s. 407, Tariff B. If the parties are unable to agree on the costs, brief submissions may be filed to the Court for review.
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