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IV. Cases in progress – Information Commissioner as an Intervener

The Attorney General of Canada

v. H.J. Heinz Co. of Canada Ltd. and The Information Commissioner of Canada, SCC 30417, Supreme Court (See Annual Report 2004-2005, pp. 64-65 for more details)

The principal question is whether or not third parties are entitled to raise exemptions, other than section 20, during the course of a section 44 court review of a department’s decision to disclose requested records. This appeal was heard on November 7, 2005. The outcome of this appeal will be reported in next year’s annual report.

Minister of Justice

v. Sheldon Blank, the Attorney General for Ontario, the Advocates’ Society and the Information Commissioner of Canada
, SCC 30553, Supreme Court

Nature of Proceedings

This was an appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal in Blank v. Canada (Department of Justice), 2004 FCA 287.

Factual Background

Sheldon Blank, the owner and operator of a pulp and paper mill, had sought the release of a large number of documents related to charges of regulatory offences laid against him by the federal government. Thirteen charges had been laid against him and his company, Gateway Industries Ltd., in 1995. Eight of these charges were quashed by the Manitoba Provincial Court in 1997, and five were quashed by the Manitoba Queen’s Bench Court in April 2001. The Crown then laid new charges in July 2002 by way of indictment, but stayed them in February 2004 and declared it would not pursue the prosecution. Mr. Blank and his company sued the federal government for damages for alleged fraud, conspiracy, perjury, and abuse of prosecutorial powers. Mr. Blank’s access requests related to obtaining information about how the charges against him had been handled internally.

The first of Mr. Blank’s requests yielded the release of approximately 2,297 pages of material, with another 1,226 pages withheld, and 36 pages partially withheld. In May 1999, he filed a second request for all the pages that had been exempted under the first request. He did obtain release of another few hundred pages, but otherwise the exemptions were maintained. He then filed a complaint with the Information Commissioner. During the investigation, an additional few hundred pages of documents were released in whole or in part. However, some pages remained withheld, particularly those for which solicitor-client privilege under section 23 of the Act had been claimed. Mr. Blank filed for judicial review in the Federal Court concerning the remaining pages.

Justice Campbell of the Federal Court upheld most of the claimed exemptions in the trial decision, Blank v. Canada (Department of Justice), 2003 FC 462, but ordered the release of some additional documents, including three that were covered by litigation privilege. Justice Campbell found that litigation privilege ends when the litigation in question terminates. He ruled that, since the charges against Mr. Blank had long been stayed, there was no remaining protection for documents that were subject to litigation privilege only. Justice Campbell acknowledged that litigation privilege is considered part of solicitor-client privilege under section 23 of the Act and therefore subject to exemption where it applies. However, once litigation privilege ceases at common law, it is no longer applicable under the Act.

Mr. Blank appealed this decision to the Federal Court of Appeal, seeking the release of further documents that had continued to be exempted. The Crown cross-appealed on the issue of whether litigation privilege terminates with the litigation and is, at that point, no longer applicable under section 23 of the Act. The Federal Court of Appeal was unanimous in dismissing Mr. Blank’s appeal, but split on the cross-appeal. Justices Pelletier and Décary agreed that litigation privilege, while included in section 23 of the Act, is of limited duration and ends with the litigation itself. Justice Létourneau disagreed and stated in dissent that, while litigation privilege is indeed included under section 23 of the Act, any time limit at common law would not apply in the access context.

In Justice Létourneau’s dissenting view, since section 23 is discretionary, there cannot be an involuntary termination of the privilege, since that would nullify or at least restrict the government’s discretion as granted to them by the Act. He concluded that, for policy reasons, access requesters should not be able to use the Act to seek documents that would not normally be available to them through regular disclosure. He noted that there were particular problems with allowing people to access litigation documents for the kind of actions that the government pursues on a regular basis, especially in cases of criminal prosecution, since the Crown might re-use the same strategy with more than one litigant, who could then gain a strategic advantage by making an access request. He recommended that the competing interests be assessed on a case-by-case basis with each claim under the Act. However, he noted that the Crown had not put forward any evidence justifying the exercise of its refusal to disclose in this particular case for the Court to weigh.

The further issue of whether those documents that were subject to solicitor-client privilege could be severed under section 25 of the Act was sent back to the Federal Court for re-determination, where it was concluded by Justice Mosley in Blank v. Canada (Department of Justice), 2005 FC 1551, that:

  • Despite the paramount nature of section 25 of the Act, it is not reasonable to expect severance of disconnected snippets of information. Where documents covered by solicitor-client privilege only contain a few words or phrases that would not be privileged, there is no need to sever them. Severance under section 25 is only required where it is reasonable.
  • Substantive information contained in the privileged documents, such as, in this case, a list of other documents that may not be covered by privilege, can be severed and disclosed. However, it must be discrete and coherent data for which there is no reasonable basis to claim privilege.
  • Since disclosure by the Crown is mandatory in criminal proceedings, this cannot be considered a voluntary or implied waiver of privilege.
  • In the context of the Act, a partial waiver of privilege cannot be considered a full waiver for disclosure purposes.

Meanwhile, the Crown sought and received leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada. Leave was granted in April 2005, and the hearing was held in December 2005. The Information Commissioner appeared as an intervener, as did the Advocates’ Society and the Attorney-General of Ontario. Mr. Blank was self-represented.

Issues Before the Court

Is litigation privilege, as encompassed in section 23 of the Act, subject to a durational limit?

Arguments

The Information Commissioner argued that, according to the federal jurisprudence, solicitor-client privilege has two branches. The first is the traditional legal advice privilege, which protects communications between counsel and client. The second is litigation privilege, which protects the counsel and client’s preparation for litigation and terminates once that litigation is over. The Information Commissioner agreed with the other parties that both were covered by section 23 of the Act. The Information Commissioner also agreed with the Federal Court of Appeal’s position that the application of the privilege is governed by the common law and the duration limit applies.

The Information Commissioner argued that any notion that the litigation preparations of Crown counsel should be given indefinite protection would be inconsistent with the purpose of the Act and the fact that exceptions to access must be limited and specific. The Information Commissioner also argued that the discretion to disclose under section 23 must be exercised in accordance with these principles as well. The Information Commissioner noted that any client-counsel communications exchanged as part of preparation for litigation would be covered by the indefinite legal advice branch of the privilege, so there was no need to worry that they would be disclosed under the Act anyway.

The Crown argued at the hearing for a single underlying rationale for both branches of the privilege which did not justify the imposition of a durational limit on the litigation branch of the privilege. The Attorney-General of Ontario supported this position. The Advocates’ Society, on the other hand, took the view that the two privileges were so different in rationale and scope as to almost constitute two separate privileges, although it acknowledged that both were covered under section 23 of the Act. The Advocates’ Society also requested from the Court a set of principled guidelines for applying litigation privilege and identifying the type of documents that fall under it, in keeping with the demands of modern litigation.

Mr. Blank argued for the maximum disclosure possible under the law.

Outcome

The Supreme Court took its decision under reserve, and the outcome will be reported in next year’s annual report.

IV. Cases in progress – Information Commissioner as an Intervener



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