Blank v. Can., [2015] F.T.R. TBEd. AU.031

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: August 07, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.031;2015 FC 956

Blank v. Can., [2015] F.T.R. TBEd. AU.031

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Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. AU.031

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

(T-955-10; 2015 FC 956)

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

Federal Court

Russell, J.

August 7, 2015.

Summary:

In 2004, Blank made a request for disclosure under the Access to Information Act for records held by the Department of Justice related to a prosecution of Blank and his company. The request was processed and 798 pages were released. Portions of the materials were not released under ss. 21(1) (government advice, recommendations, consultation or deliberation) and s. 23 (solicitor and client privilege) of the Act. Blank applied under s. 41 of the Act for a review of the undisclosed records, challenging the Department's use of the ss. 21(1) and 23 exemptions, its exercise of discretion not to disclose the records and the application of s. 25 (severability).

The Federal Court dismissed the application.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - In 2004, Blank made a request for disclosure under the Access to Information Act for records held by the Department of Justice related to a prosecution of Blank and his company - The request was processed and 798 pages were released - Portions of the materials were not released under ss. 21(1) (government advice, recommendations, consultation or deliberation) and s. 23 (solicitor and client privilege) of the Act - Blank applied under s. 41 of the Act for a review of the undisclosed records, challenging the Department's use of the ss. 21(1) and 23 exemptions, its exercise of discretion not to disclose the records and the application of s. 25 (severability) - The Federal Court dismissed the application, rejecting Blank's assertion that the prosecutorial misconduct that he had been subjected to was so egregious that it vitiated the ss. 21 and 23 exemptions - Solicitor and client legal advice privilege was absolute in scope and permanent in duration unless the communications in question were criminal in themselves or were intended to further criminal purposes - An exception for misconduct had been explicitly rejected by the Federal Court of Appeal - The exemptions here were not vitiated by any kind of wrongdoing, but were correctly claimed and the discretion was reasonably exercised - Disclosure of the documents at issue was not granted - For those documents in which severance was applied, reasonable severance occurred - See paragraphs 35 to 60.

Crown - Topic 7208.1

Examination of public documents - Freedom of information - Bars - Advice, proposals, analyses or policy options developed for government or public body - [See Crown - Topic 7203 ].

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Severability (redaction) - [See Crown - Topic 7203 ].

Practice - Topic 3604.6

Evidence - Affidavits - General - Supplementary or reply affidavits - In 2004, Blank made a request for disclosure under the Access to Information Act for records held by the Department of Justice related to a prosecution of Blank and his company - The request was processed and 798 pages were released - Portions of the materials were not released under ss. 21(1) (government advice, recommendations, consultation or deliberation) and s. 23 (solicitor and client privilege) of the Act - Blank applied under s. 41 of the Act for a review of the undisclosed records - The Crown objected to the admission of two affidavits filed by Blank on the grounds that they were affirmed and filed in a previous interlocutory motion - The Federal Court agreed with the Crown, stating, "[Blank] is simply attempting to supplement his record years after cross-examination on an issue that has been central to his application since the outset. He has provided no real justification for this and the problem has been brought to his attention before. Under these circumstances, to accept these affidavits as being properly before the Court does not serve the interests of justice" - See paragraphs 29 to 34.

Cases Noticed:

Blank v. Canada (Minister of Justice) (2004), 325 N.R. 315; 2004 FCA 287, refd to. [para. 3].

Blank v. Canada (Minister of Justice) (2006), 352 N.R. 201; 2006 SCC 39, refd to. [para. 15].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 15].

Krieger et al. v. Law Society of Alberta (2002), 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 15].

R. v. Nixon (O.) (2011), 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 16].

Singh v. Montreal (City), 2014 QCCA 307, refd to. [para. 16].

X v. Canada (Minister of National Defence), [1991] 1 F.C. 670; 41 F.T.R. 73 (T.D.), refd to. [para. 19].

Connolly v. Canada Post Corp. et al. (2000), 197 F.T.R. 161 (T.D.), affd. [2002] N.R. Uned. 24; 2002 FCA 50, refd to. [para. 19].

Blank v. Canada (Minister of the Environment), [2000] F.T.R. Uned. 689 (T.D.), refd to. [para. 19].

Blank v. Canada (Minister of the Environment) (2006), 300 F.T.R. 273; 2006 FC 1253, affd. (2007), 368 N.R. 279; 2007 FCA 289, refd to. [para. 19].

Blank v. Canada (Minister of Justice) (2009), 373 F.T.R. 1; 2009 FC 1221, affd. (2010), 409 N.R. 152; 2010 FCA 183, refd to. [para. 20].

Blank v. Canada (Minister of Justice) (2005), 344 N.R. 184; 2005 FCA 405, refd to. [para. 20].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), affd. (1993), 154 N.R. 319 (F.C.A.), refd to. [para. 21].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 21].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al. (2008), 376 N.R. 327; 2008 SCC 44, refd to. [para. 23].

Blank v. Canada (Minister of Justice), [2015] F.T.R. TBEd. AP.036; 2015 FC 460, refd to. [para. 32].

Pfizer Canada Inc. et al. v. RhoxalPharma Inc. et al., [2004] F.T.R. Uned. A52; 2004 FC 1685, refd to. [para. 33].

Inverhuron & District Ratepayers' Association v. Canada (Minister of the Environment) et al. (2000), 180 F.T.R. 314 (T.D.), refd to. [para. 33].

Blank v. Canada (Minister of Justice), [2015] F.T.R. TBEd. JL.013; 2015 FC 753, refd to. [para. 34].

Goldman, Sachs & Co. v. Sessions (1999), 26 B.C.T.C. 49; 38 C.P.C.(4th) 143 (S.C.), refd to. [para. 42].

Dublin v. Montessori Jewish Day School of Toronto et al., [2007] O.T.C. Uned. 332; 85 O.R.(3d) 511; 281 D.L.R.(4th) 366 (Sup. Ct.), refd to. [para. 42].

Bronskill v. Canada (Minister of Canadian Heritage) (2011), 395 F.T.R. 165; 2011 FC 983, refd to. [para. 42].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 49].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security) (2010), 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 51].

Blank et al. v. Canada (Minister of the Environment) (2001), 281 N.R. 388; 2001 FCA 374, refd to. [para. 59].

Blank v. Canada (Minister of Justice) (2007), 363 N.R. 378; 2007 FCA 87, refd to. [para. 59].

Counsel:

Sheldon Blank, on his own behalf;

John Faulhammer, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application was heard at Winnipeg, Manitoba, on June 15 and 16, 2015, by Russell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on August 7, 2015.