Blank v. Canada (Minister of Justice), (2009) 373 F.T.R. 1 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: July 08, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 373 F.T.R. 1 (FC);2009 FC 1221

Blank v. Can. (2009), 373 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. NO.052

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

(T-1577-08; 2009 FC 1221)

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

Federal Court

de Montigny, J.

November 30, 2009.

Summary:

The applicant sought access to records pursuant to the Access to Information Act (Can.). The Minister of Justice (Can.) disclosed some records but withheld others on the basis of the solicitor-client privilege exemption set out in s. 23. The applicant sought judicial review, arguing that the Minister kept improper records, processed his access request in bad faith and waived privilege.

The Federal Court dismissed the application.

Crown - Topic 7165

Examination of public documents - Freedom of information - Legislation - Waiver - Criminal proceedings against the applicant and his company for fisheries offences came to nothing - The applicant then sued the federal government for fraud, conspiracy, perjury and abuse of its prosecutorial powers - He sought access to records pursuant to the Access to Information Act (Can.) - The Minister of Justice (Can.) disclosed some records but withheld others on the basis of the solicitor-client privilege exemption set out in s. 23 - The applicant sought judicial review, arguing that the Minister had waived the privilege since its counsel had made representations in the criminal proceedings about the ministerial awareness of, and the limitation period for, the fisheries offences charges - The Federal Court rejected the argument and dismissed the application - Counsel's representation could in no way be assimilated to an explicit or even an implicit waiver of the documents withheld by the Minister - See paragraph 46.

Crown - Topic 7165

Examination of public documents - Freedom of information - Legislation - Waiver - The applicant contended that once a document had been obtained in the context of another request for information under the Access to Information Act (Can.), the s. 23 solicitor-client privilege that could attach to it had to be taken to have been waived for all intents and purposes - The Federal Court held that this could not be so - It was at least conceivable that a specific document could be found to be releasable in one Access request and not releasable in another, without there being any improper use of the discretion conferred by s. 23 - In addition, the respondent Minister of Justice (Can.) did not have the obligation to cross-reference all the documents released as a result of other Access requests filed by the applicant with the documents considered in the Access request underlying the present case - See paragraphs 47 and 48.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - The Federal Court noted that the solicitor-client privilege found in s. 23 of the Access to Information Act included both legal advice privilege and litigation privilege - The court added that there was often a potential overlap of legal advice privilege and litigation privilege in the litigation context - Legal advice privilege could continue to apply to material to which litigation privilege no longer attached - This was true, in particular, of draft court documents or submissions - These draft documents remained protected by legal advice privilege under s. 23 even though the final version of these documents could have been released once the litigation privilege that applied to them had ended - Draft court documents, while being drafted, represented an interchange between solicitor and client, wherein the solicitor provided the client with direction or options as to the legal position to be taken in pending litigation - The client, in turn, commented on that legal advice, provided further instructions, and so forth - Draft court documents and submissions were, by their very nature, intended to be confidential - It was only the final version that was filed with, or submitted to, the court that was not so intended - See paragraphs 34 to 39.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - [See second Crown - Topic 7165 ].

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - The Federal Court discussed what constituted a reasonable severance for the purposes of s. 25 of the Access to Information Act (Can.), which provided that once it was determined that records were exempt from disclosure pursuant to the solicitor-client privilege exemption provided by s. 23, the head of a government institution was required to determine whether any part of the record could be reasonably severed - See paragraphs 32, 33, and 42 to 44.

Crown - Topic 7242

Examination of public documents - Freedom of information - Judicial review and appeals - Considerations - Criminal proceedings against the applicant and his company for fisheries offences came to nothing - The applicant then sued the federal government for fraud, conspiracy, perjury and abuse of its prosecutorial powers - He sought access to records pursuant to the Access to Information Act (Can.) - There were 20 boxes of records to go through, requiring 200 hours of searching - The Minister of Justice (Can.) disclosed some records but withheld others on the basis of the solicitor-client privilege exemption set out in s. 23 - The applicant also filed complaints to the Office of the Information Commissioner of Canada (OICC) - OICC staff searched up to 40 boxes of documents - The OICC (a) agreed with the Minister that the records exempted qualified as solicitor-client privilege for the purposes of s. 23 of the Act, and (b) found that the Minister and his staff had done "everything possible to find relevant records and review them for possible release" to the applicant - The applicant sought judicial review of the Minister's disclosure decision - The Federal Court, in dismissing the application, stated that the considered opinion of the Commissioner was a factor to be considered - See paragraphs 41 and 50.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - At issue was the standard of review of a decision to refuse disclosure of information on the basis of the discretionary solicitor-client privilege exemption set out in s. 23 of the Access to Information Act (Can.) - The Federal Court held that the court "must apply the correctness standard to review the decision that the withheld information falls within the s. 23 statutory exemption, and the standard of reasonableness to the discretionary decision to refuse to release exempted information. Of course, the Court must also consider whether the discretion was exercised in good faith and for a reason rationally connected to the purpose for which it was granted" - See paragraphs 27 to 31.

Cases Noticed:

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. 3].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, consd. [para. 14].

Reyes v. Canada (Secretary of State) (1984), 9 Admin. L.R. 296 (F.C.T.D.), refd to. [para. 24].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2004), 255 F.T.R. 56; 2004 FC 431, revd. (2005), 335 N.R. 8; 2005 FCA 199, refd to. [para. 26].

Gordon v. Canada (Minister of Health) (2008), 324 F.T.R. 94; 2008 FC 258, refd to. [para. 26].

Blank v. Canada (Minister of Justice) (2005), 344 N.R. 184; 2005 FCA 405, refd to. [para. 26].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), affd. (1993), 154 N.R. 319 (F.C.A.), consd. [para. 27].

3430901 Canada Inc. et al. v. Canada (Minister of Industry), [2002] 1 F.C. 421; 282 N.R. 284; 2001 FCA 254, consd. [para. 28].

Thurlow v. Canada (Solicitor General) et al. (2003), 242 F.T.R. 214; 2003 FC 1414, refd to. [para. 29].

Elomari v. President of the Canadian Space Agency, [2006] F.T.R. Uned. 896; 2006 FC 863, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, consd. [para. 35].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, consd. [para. 36].

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), consd. [para. 43].

Blank v. Canada (Minister of Justice) (2004), 325 N.R. 315; 2004 FCA 287, affd. [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 43].

X v. Canada (Minister of National Defence) (1992), 58 F.T.R. 93 (T.D.), consd. [para. 51].

Blank v. Canada (Minister of the Environment) (2006), 300 F.T.R. 273; 2006 FC 1253, consd. [para. 54].

R. v. Gateway Industries Ltd. et al. (2002), 169 Man.R.(2d) 300; 2002 MBQB 285, refd to. [para. 54].

Blank v. Canada (Minister of Environment), [2000] F.T.R. Uned. 689; 100 A.C.W.S.(3d) 377 (T.D.), refd to. [para. 55].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 23 [paras. 1, 34]; sect. 25 [para. 42].

Counsel:

Sheldon Blank, on his own behalf;

Dhara Drew, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Winnipeg, Manitoba, on July 8, 2009, by de Montigny, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on November 30, 2009.