Blank v. Canada (Minister of Justice), 2016 FCA 189

• Judge: Dawson, Ryer and de Montigny, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 29, 2016
• Jurisdiction: Canada (Federal)
• Citations: 2016 FCA 189;(2016), 486 N.R. 330 (FCA)

Blank v. Can. (2016), 486 N.R. 330 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. JL.002

Sheldon Blank (appellant) v. The Minister of Justice (respondent)

(A-378-15; 2016 FCA 189)

Indexed As: Blank v. Canada (Minister of Justice)

Federal Court of Appeal

Dawson, Ryer and de Montigny, JJ.A.

June 23, 2016.

Summary:

Blank and his company commenced a civil action against the Minister of Justice and certain of her employees and agents alleging abuse of process in respect of criminal charges that had been brought against Blank and his company. Blank made a request under the Access to Information Act for records and communications dealing with or referring to the civil litigation from or to Rod Garson, including Garson's notes on the subject. Garson was the Crown counsel with the Federal Prosecution Service who, at least for some period of time, was responsible for carriage of the prosecution. Blank applied under s. 41 of the Act for judicial review of the Department of Justice's decision to deny Blank access to portions of the requested records.

The Federal Court, in a decision reported at (2015), 483 F.T.R. 14, dismissed the application. The court fixed and awarded costs payable by Blank to the Minister in the amount of $7,000 all inclusive. Blank appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - Blank applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny Blank access to portions of certain records requested by Blank - The Federal Court dismissed the application - The judge did not consider two affidavits which had been filed by Blank in support of prior interlocutory motions - Those affidavits had become spent when the motions were decided and no proper request to introduce them in the record of the current application had been made - In the judge's view the respondent was entitled to know the case it had to respond to - In addition, Blank waited until the end of the hearing before requesting leave to file the affidavits, which, in the judge's opinion, was far too late - On appeal, the Federal Court of Appeal saw no reviewable error in the judge's ruling not to consider the affidavits - See paragraphs 26 to 28.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - Blank and his company commenced a civil action against the Minister of Justice and certain of her employees and agents alleging abuse of process in respect of criminal charges that had been brought against Blank and his company - Blank made a request under the Access to Information Act for records and communications dealing with or referring to the civil litigation from or to Rod Garson, including Garson's notes on the subject - Garson was the Crown counsel with the Federal Prosecution Service who, at least for some period of time, was responsible for carriage of the prosecution - Blank applied for judicial review of the decision of the Department of Justice to deny him access to portions of the requested records - The Federal Court dismissed the application - Blank appealed - Blank argued that the judge erred in finding that the exempted or redacted portions of the records fell within the solicitor-client exemption in s. 23 of the Act for two reasons - First, the privilege was spent since those documents were created for the dominant purpose of the criminal proceedings and those proceedings had been stayed - Second, Blank contended that the privilege had been vitiated by an abuse of process to the extent that the Crown agent made an inappropriate offer to withdraw the charges in the criminal proceedings in exchange for a withdrawal of the civil liability claims - The Federal Court of Appeal dismissed the appeal - The litigation at issue was not the criminal prosecution, but the civil claim - Since that litigation was still outstanding, litigation privilege still applied - As for the few documents pertaining exclusively to the criminal prosecution, notwithstanding the expiry of litigation privilege, those documents were nevertheless protected from disclosure by legal advice privilege - All of those records were letters, memoranda and e-mail communications that contained or referred to legal advice between government lawyers, Crown agents and departmental officials - As such, they fell within the ambit of legal advice privilege, which was permanent in duration - Further, the judge did not err in finding that the evidence did not disclose any misconduct or attempted cover up of blameworthy conduct or abuse of process - The judge did not err in finding that the redacted portions of the record were protected by solicitor-client privilege - See paragraphs 37 to 61.

Crown - Topic 7244

Examination of public documents - Freedom of information - Judicial review and appeals - Jurisdiction - Blank applied under s. 41 of the Access to Information Act for judicial review of a decision of the Department of Justice (DOJ) to deny Blank access to portions of certain records requested by Blank - The DOJ subsequently disclosed 111 pages of documents that were attachments to previously released documents - All but 27 of the 111 pages were redacted as the DOJ continued to claim the same exemptions under the Act - Blank had not made a complaint to the Commissioner in respect of the redacted attachments - The Federal Court judge held that Blank was barred from seeking the court's review of the disclosure of the attachments because, according to s. 41 of the Act, a complaint to the Commissioner was a condition precedent to the court's jurisdiction - On appeal, the Federal Court of Appeal stated that "Section 41 of the Act makes it clear that the Federal Court may only review a refusal to access personal information after the matter has been investigated by the Privacy Commissioner. Accordingly, the Judge correctly concluded he was without jurisdiction to review the documents disclosed after the Commissioner's report" - See paragraphs 29 to 32.

Crown - Topic 7244

Examination of public documents - Freedom of information - Judicial review and appeals - Jurisdiction - Blank applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny Blank access to portions of certain records requested by Blank - The Federal Court dismissed the application - Blank appealed - One issue was whether the judge erred by concluding that the Federal Court lacked jurisdiction to order a further search - The Federal Court of Appeal stated that "The appellant made allegations before both the Commissioner and the Federal Court that documents may be missing or could have been tampered with. ... As a result, he asked both the Federal Court and this Court to order 'a new and proper search for the records relevant to the request'. ... the Judge found that the Court had no jurisdiction to make such an order in the absence of any grounds to believe that the integrity of the records had been tampered with. Having carefully read the unredacted version of the documents relied upon by the appellant in support of his allegation that the respondent did not act in good faith, I am unable to find in his favour. ... On the basis of the confidential record that is before me, I have been unable to find evidence that would lead me to believe, on reasonable grounds, that there has been any attempt to tamper with the integrity of the records. Accordingly, the Judge did not err in concluding that he lacked jurisdiction to order a further search of the records" - See paragraphs 33 to 36.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - Blank applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny Blank access to portions of certain records requested by Blank - The Federal Court dismissed the application - Blank appealed - The Federal Court of Appeal stated that "When reviewing a decision to withhold information pursuant to section 23 of the Act, it is well established that two standards of review must be applied as two separate determinations must be made: correctness for the decision that the withheld information falls within the statutory exemption, and reasonableness for the discretionary decision to refuse to release exempted information ... The Judge correctly identified those standards of review at paragraph 27 of his reasons, and the appellant has not challenged that portion of his decision. As for the other issues raised in this appeal, they pertain to decisions made by the Judge himself and not to his review of decisions made by the respondent. Accordingly, the applicable standard of review for those issues is the appellate standard of review stated in Housen v. Nikolaisen, ... Therefore, to succeed on this appeal the appellant must persuade us that the Federal Court erred on a pure question of law or on a question of law that can be extracted from a question of mixed fact and law. In the absence of this sort of legal error the appellant can succeed only if he demonstrates palpable and overriding error" - See paragraphs 24 to 25.

Crown - Topic 7285

Examination of public documents - Freedom of information - Practice - Costs - Blank applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny Blank access to portions of certain records requested by Blank - The Federal Court dismissed the application - The judge fixed and awarded costs payable by Blank to the respondent Minister of Justice in the amount of $7,000 all inclusive - Blank appealed - Blank submitted that the judge erred in law by not recognizing that an award of costs of $7,000 would act as a deterrent to citizens who desired to exercise their right for an independent review of a refusal by the government to disclose records - He also suggested that an award of costs could have been made in his favour, pursuant to s. 53(2) of the Act, in light of the fact that he raised an important new principle - The Federal Court of Appeal stated that "Subsection 53(2) of the Act does contemplate an award of costs to an unsuccessful applicant where the Court is of the opinion that the application raises an important new principle in relation to the Act. The Judge noted, however, that the application concerned the same core argument that had been raised in numerous cases before this Court and the Federal Court, namely that solicitor-client privilege is being used to shield disclosure of evidence of misconduct. As for subsection 4(2.1) of the Act, which speaks to the increased responsibility of government institutions to assist the person making an access request and to respond accurately, completely and in a timely fashion, I agree with the respondent that it does not expand the scope of a section 41 application. As a result, the Judge could rely on subsection 53(1) of the Act to order that costs follow the event. Bearing in mind that the application of the default tariff would have entailed an award of costs to the respondent in the amount of $20,790 exclusive of disbursements, and considering the seriousness of the allegations made by the appellant and their rejection by the Court as well as the time and complexity involved, the Judge's exercise of discretion in awarding costs in the amount of $7,000 was neither plainly wrong nor an error in principle" - See paragraphs 62 to 65.

Counsel:

Joseph Irving, for the appellant;

John Faulhammer and Scott Farlinger, for the respondent.

Solicitors of Record:

J.W. Irving & Company, Mississauga, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on February 29, 2016, at Winnipeg, Manitoba, before Dawson, Ryer and de Montigny, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by de Montigny, J.A., on June 23, 2016.