Blank v. Canada (Minister of Justice), 2015 FC 753

• Judge: Brown, J.
• Court: Federal Court (Canada)
• Case Date: June 16, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 753;(2015), 483 F.T.R. 14 (FC)

Blank v. Can. (2015), 483 F.T.R. 14 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.013

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

(T-2065-09; 2015 FC 753)

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

Federal Court

Brown, J.

June 16, 2015.

Summary:

In 2002, the applicant and Gateway Industries Ltd. commenced a civil action against several individuals and entities of the Federal Government, alleging fraud, conspiracy, perjury, abuse and intent to injure in relation to 13 charges laid against them. The applicant requested certain documents from the Department of Justice dealing with that lawsuit, which was still in progress in the Manitoba Court of Queen's Bench. The applicant applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny the applicant access to portions of the records requested by the applicant.

The Federal Court dismissed the application.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The applicant applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny the applicant access to portions of certain records requested by the applicant - The Federal Court held that two affidavits filed by the applicant in support of interlocutory motions before a prothonotary should not be considered in support of this application for judicial review - The affidavits filed by the applicant in support of interlocutory motions became spent when those motions were decided - They did not form part of his record on this application for judicial review - First, the applicant did not file them for that purpose - Second, while the court might allow the filing of supplementary affidavits on judicial review, such filing could only be done on specific request, on proper notice and with argument and material in support - No such proper request had been made - Such application would also have had to be made on a timely basis - To allow the filing of these documents at this time would constitute a serious unfairness and injustice to the respondent who had no notice of the applicant's intent to file the two affidavits until they appeared in his record, no opportunity to cross-examine on the affidavits for the purposes of the application, and no opportunity to file responding material - See paragraphs 32 to 41.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - In 2002, the applicant and Gateway Industries Ltd. commenced a civil action against several individuals and entities of the Federal Government, alleging fraud, conspiracy, perjury, abuse and intent to injure in relation to 13 charges laid against them - The applicant requested certain documents from the Department of Justice dealing with that lawsuit, which was still in progress in the Manitoba Court of Queen's Bench - The applicant applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny the applicant access to portions of the requested records - The Federal Court held that the exemptions under s. 23 of the Act (solicitor-client privilege) were correctly claimed, and the Department of Justice reasonably exercised its discretion - The court's review disclosed no evidence of abuse of process or similar blameworthy conduct - Nor did it disclose any evidence that prima facie showed actionable misconduct by the Crown in relation to the civil proceedings, or evidence that prima facie showed actionable misconduct in relation to the now completed criminal proceedings, being the tests referred to by the Supreme Court of Canada in Blank v. Canada (Minister of Justice) (2006 SCC) - The court found no evidence of wrongdoing - The court added that it found no evidence of "communications criminal in themselves or intended to further criminal purposes" and no evidence of communications to perpetuate a tort - See paragraphs 60 to 82.

Crown - Topic 7217

Examination of public documents - Freedom of information - Bars - Inseverability - The applicant applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny the applicant access to portions of the records requested by the applicant - One issue was whether the Department of Justice erred in severing the records pursuant to s. 25 of the Act - The Federal Court concluded that severance was in accordance with the Act and was properly applied - Additional material could not be severed without revealing the nature of the litigation privileged material, or impairing the solicitor-client privilege by providing clues to the content of the exempted portions or resulting in the release of meaningless out of context words and phrases - See paragraphs 86 to 90.

Crown - Topic 7244

Examination of public documents - Freedom of information - Judicial review and appeals - Jurisdiction - The applicant applied under s. 41 of the Access to Information Act for judicial review of the Department of Justice's decision to deny the applicant access to portions of the records requested by the applicant by access request dated November 30, 2006 and subsequent complaint dated March 16, 2007 - After the applicant filed the application for judicial review the respondent discovered and disclosed an additional 84 pages of material, much of which was redacted or withheld - The applicant did not ask the Information Commissioner to review or report on the redactions in the 84 pages - Instead, the applicant placed those pages directly before the court and asked the court to proceed under s. 41 in the absence of any review or report of the Information Commissioner - The Federal Court held that the applicant's failure to file a complaint with the Information Commissioner in relation to the 84 pages had the effect of barring him from seeking the court's review of those documents because his application was premature in that respect - Without a complaint to and a review and report by the Information Commissioner regarding the Department of Justice's disclosure, the court lacked jurisdiction to engage in judicial review of the relevant records by virtue of s. 41 of the Act - See paragraphs 42 to 55.

Crown - Topic 7294

Examination of public documents - Freedom of information - Practice - Judicial review - [See Crown - Topic 7244 ].

Cases Noticed:

R. v. Gateway Industries Ltd., [1997] M.J. No. 185, refd to. [para. 4].

R. v. Gateway Industries Ltd. et al. (2001), 155 Man.R.(2d) 74; 2001 MBQB 106, refd to. [para. 5].

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. 26].

Blank v. Canada (Minister of Justice) (2009), 373 F.T.R. 1; 2009 FC 1221, refd to. [para. 27].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 31].

Commissaire à l'information du Canada v. Canada (Ministre de la Défense nationale) (1999), 240 N.R. 244 (F.C.A.), refd to. [para. 47].

Statham v. Canadian Broadcasting Corp. (President) et al., [2012] 2 F.C.R. 421; 409 N.R. 350; 2010 FCA 315, refd to. [para. 48].

Whitty v. Canada (Attorney General) (2014), 460 N.R. 372; 2014 FCA 30, refd to. [para. 49].

Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245; 168 F.T.R. 49 (T.D.), refd to. [para. 56].

Blank v. Canada (Minister of Justice) (2005), 344 N.R. 184; 2005 FCA 405, refd to. [para. 56].

Blank v. Canada (Minister of Justice) (2010), 409 N.R. 152; 2010 FCA 183, refd to. [para. 56].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 64].

Blank v. Canada (Minister of Environment), [2000] F.T.R. Uned. 689; 100 A.C.W.S.(3d) 377 (T.D.), refd to. [para. 70].

Blank v. Canada (Minister of Justice) (2004), 325 N.R. 315; 2004 FCA 287, refd to. [para. 70].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 73].

Blank v. Canada (Department of Justice), 2003 FCT 462, refd to. [para. 80].

Blank v. Canada (Minister of Justice), [2006] F.T.R. Uned. 892; 2006 FC 841, refd to. [para. 80].

Blank v. Canada (Minister of the Environment) (2006), 300 F.T.R. 273; 2006 FC 1253, refd to. [para. 80].

Blank v. Canada (Minister of Justice), Cite As: [2007] N.R. Uned. 82; 2007 FCA 147, refd to. [para. 80].

Blank v. Canada (Minister of the Environment) (2007), 368 N.R. 279; 2007 FCA 289, refd to. [para. 80].

Blank v. Canada (Minister of Justice) (2007), 363 N.R. 378; 2007 FCA 87, refd to. [para. 89].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 19(1) [para. 57]; sect. 21(1)(a), sect. 21(1)(b) [para. 83]; sect. 23 [para. 60]; sect. 25 [para. 86]; sect. 41 [para. 45].

Federal Courts Rules, rule 312 [para. 38]; rule 363 [para. 39].

Counsel:

Sheldon Blank, for the applicant (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 on April 7 to 9, 2015, at Winnipeg, Manitoba, before Brown, J., of the Federal Court, who delivered the following decision on June 16, 2015.