Blank v. Canada (Minister of Justice), (2006) 352 N.R. 201 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court of Canada
• Case Date: Friday September 08, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 352 N.R. 201 (SCC);2006 SCC 39

Blank v. Can. (2006), 352 N.R. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.R. TBEd. SE.002

Minister of Justice (appel­lant) v. Sheldon Blank (respondent) and Attorney General of Ontario, The Advocates' Society and Information Commissioner of Canada (intervenors)

(30553; 2006 SCC 39; 2006 CSC 39)

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

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ.

September 8, 2006.

Summary:

In October 1997 Blank, a di­rector of Gate­way Industries, applied under the Access to Informa­tion Act to obtain all records pertain­ing to his pros­ecution and the prosecution of Gateway In­dus­tries for regula­tory offences under the Fisher­ies Act and Pulp and Paper Ef­fluent Regu­lations. Blank was never con­victed as the initial charges were quashed and a sec­ond set of charges were ul­ti­mately stayed by the Crown. Blank and Gate­way sued the fed­eral government for dam­ages, al­leging fraud, conspiracy, perjury and abuse of its prose­cutorial powers. It was in both the con­text of the penal prose­cution and the civil lawsuit that Blank sought to access govern­ment records pur­suant to the Access to Informa­tion Act. Cer­tain material was released, however docu­ments relating to the penal proceedings were de­nied un­der the Act on various grounds includ­ing solici­tor-client privilege (s. 23). Blank com­plained to the Information Com­missioner (Com­missioner) which resulted in the release of some, but not all, of the requested material. Blank sought a review of this deci­sion under s. 41 of the Act.

The Federal Court of Canada, Trial Divi­sion, ordered the additional release of cer­tain, but not all the remaining docu­ments. The motions judge held that documents excluded from disclosure on the basis of lit­igation privilege should be re­leased where the litigation to which the record related had ended. Blank appealed, raising, inter alia, an issue relating to the application of solici­tor-client privilege under s. 23 of the Act. The Crown cross-appealed on the issue of whether liti­gation privilege within the mean­ing of s. 23 expired when litigation ended.

The Federal Court of Appeal, in a decision re­ported 325 N.R. 315, dismissed the appeal, ex­cept with respect to an issue respecting sever­ance. The court, Létourneau, J.A., dissenting, dismissed the cross-appeal. The court was di­vided on the duration of the privilege. Pelletier, J.A., for the majority on this point, found that litigation privilege, unlike legal advice privilege, expired with the end of the litigation that gave rise to the privilege, "subject to the possibility of defin­ing ... litigation ... broadly". He therefore held that s. 23 of the Access Act did not apply to the documents for which a claim of litigation privilege was made in this case because the crim­inal prosecution had ended. Létourneau, J.A., dissenting on this point, found that the privilege did not necessarily end with the termi­nation of the litigation that gave rise to it. He would have upheld the privilege in this case. The Minister of Justice appealed, raising the issue of litigation privi­lege (i.e., whether documents once subject to the litigation privilege remain privi­leged when the litigation ended).

The Supreme Court of Canada dismissed the ap­peal. The court stated that the Minis­ter's claim of litigation privilege failed in this case because the privilege claimed had expired when the liti­gation relating thereto had terminated. The files to which Blank sought access related to penal pro­ceedings that had long since terminated. By seeking civil redress for the manner in which those pro­ceedings were conducted, Blank had given them neither fresh life nor a posthum­ous and parallel existence.

Crown - Topic 7203

Examination of public documents - Free­dom of in­formation - Bars - Solicitor-client privilege (incl. Crown counsel) - Section 23 of the Ac­cess to Information provided that "the head of a government institution may refuse to disclose any record re­quested under this Act that con­tains infor­mation that is subject to solicitor-client privilege" - The Supreme Court of Can­ada stated that in interpreting and apply­ing the Act, the phrase "solicitor-client privi­lege" in s. 23 should be taken as a reference to both legal advice privilege and litigation privi­lege - See paragraph 4.

Crown - Topic 7203

Examination of public documents - Free­dom of in­formation - Bars - Solicitor-client privilege (incl. Crown counsel) - In a case involving so­licitor-client privilege under s. 23 of the Ac­cess to Information Act, the Min­ister of Justice contended that the solicitor-client privilege had two "branch­es", one con­cerned with confiden­tial com­munications between lawyers and their clients (legal advice privi­lege) and the other relating to information and materials gathered or created in the litigation context (litigation privilege) - The Supreme Court of Canada, per Fish, J., stated that "bearing in mind their different scope, purpose and rationale, it would be prefer­able, in my view, to recognize that we are dealing here with distinct conceptual ani­mals and not with two branches of the same tree. Ac­cordingly, I shall refer in these reasons to the solicitor-cli­ent privi­lege as if it in­cludes only the legal advice privilege, and shall in­deed use the two phrases -- solici­tor-client priv­ilege and legal advice privi­lege -- synony­mously and interchangeably, except where other­wise indi­cated. As a matter of substance and not mere terminol­ogy, the distinction be­tween litigation privilege and the solicitor-client privilege is decisive in this case. The for­mer, unlike the latter, is of temporary dura­tion. It expires with the litigation of which it was born. Charac­terizing litigation privilege as a 'branch' of the solicitor-­client privilege, as the Minister would, does not envelop it in a shared cloak of per­manency." - See paragraphs 6 to 8.

Crown - Topic 7203

Examination of public documents - Free­dom of in­formation - Bars - Solicitor-client privilege (incl. Crown counsel) - In Octo­ber 1997 Blank, a company director, ap­plied under the Ac­cess to Information Act for records pertain­ing to his and his com­pany's prosecution under fisheries legisla­tion - Blank was never con­victed as the charges were quashed or stayed - Blank thereafter sued the federal government for damages, alleging fraud, conspiracy, etc. - It was in both the context of the penal pros­ec­ution and the civil lawsuit that Blank sought to access the records - The Minister of Justice withheld certain documents claim­ing solicitor-client privilege under s. 23 of the Act - The Su­preme Court of Canada stated that "the Min­ister's claim of litigation privilege fails in this case be­cause the privilege claimed, by what­ever name, has expired: The files to which the respondent [Blank] seeks access relate to penal proceedings that have long termin­ated. By seek­ing civil redress for the man­ner in which those proceedings were con­ducted, the respon­dent has given them neither fresh life nor a posthumous and parallel existence." - See para­graph 9.

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege (incl. Crown counsel) - The Su­preme Court of Can­ada held that the com­mon law litigation privilege comes to an end, absent closely re­lated proceedings, upon the termination of the litigation that gave rise to the privilege - The court adopted a broad definition of "litiga­tion" for the purpose of determining when privi­lege ended - The court held that this ex­tended defi­nition of litigation applied no less to the gov­ernment than to private liti­gants (i.e., in the context of litigation privilege as pro­tected by s. 23 of the Ac­cess to Information Act) - The court stated, inter alia, that nothing in the Act suggested that Parliament intended to extend the life­span of the litigation privi­lege when a member of the public sought access to gov­ern­ment documents - See paragraphs 51 to 54.

Practice - Topic 4577

Discovery - Documents - What documents must be produced - Privileged documents -At­torney-client communications (legal ad­vice privilege) - The Supreme Court of Can­ada stated that solicitor-client privilege and litiga­tion privi­lege often co-exist and one is some­times mistakenly called by the other's name, but they are not coterminous in space, time or meaning - See paragraph 1.

Practice - Topic 4577

Discovery - Documents - What documents must be produced - Privileged documents -At­tor­ney-client communications (legal ad­vice privilege) - The Supreme Court of Can­­ada dis­tinguished between solicitor cli­ent (legal advice privilege) and litigation privilege - The court rejected the notion that solicitor-client privilege had two branches, legal advice privi­lege and liti­ga­tion privilege - Rather, the court stated that it was preferable to recognize that these were "distinct conceptual animals and not with two branches of the same tree" - The court stated that litigation privilege, unlike sol­icitor-client privilege, was of temporary dura­tion and expired with the litigation of which it was born - See paragraphs 6 to 9 and 26 to 41.

Practice - Topic 4577

Discovery - Documents - What documents must be produced - Privileged documents -At­torney-client communications (legal ad­vice privilege) - The Supreme Court of Can­ada dis­tinguished between solicitor cli­ent (legal advice privilege) and litigation privilege - The court stated, inter alia, that "unlike the solici­tor-cli­ent privilege, the litigation privilege arises and operates even in the absence of a solicitor-cli­ent relation­ship, and it applies indiscriminately to all litigants, whether or not they are repre­sented by counsel ... Another important dis­­tinc­tion leads to the same conclu­sion. Con­fi­den­tiality, the sine qua non of the solicitor-cli­ent privilege, is not an essential component of the litigation privilege. In pre­­paring for trial, lawyers as a matter of course obtain informa­tion from third par­ties who have no need nor any expecta­tion of confidentiality; yet the litigation privi­lege attaches nonetheless. In short, the lit­i­gation privilege and the solici­tor-client privilege are driven by different policy considerations and generate different legal consequences" - See paragraphs 32 and 33.

Practice - Topic 4577

Discovery - Documents - What documents must be produced - Privileged documents -At­torney-client communications (legal ad­vice privilege) - Documents prepared in con­­tem­pla­tion of litigation (litigation privi­lege or work product privilege) - The Su­preme Court of Can­ada stated that "... the common law litiga­tion privilege comes to an end, absent closely related proceed­ings, upon the ter­mi­nation of the litigation that gave rise to the privilege ... Thus, the prin­ciple 'once privi­leged, always privi­leged", so vital to the solici­tor-client privi­lege, is foreign to the litigation privilege. The liti­ga­tion privi­lege, unlike the solici­tor-cli­ent privilege, is neither absolute in scope nor per­manent in duration" - See para­graphs 36 and 37.

Practice - Topic 4578

Discovery - Documents - What documents must be produced - Privileged documents -Docu­­ments prepared in contemplation of liti­gation (litigation privilege or work product privilege) - [See all Practice - Topic 4577].

Practice - Topic 4578

Discovery - Documents - What documents must be produced - Privileged documents -Docu­ments prepared in contemplation of litigation (litigation privilege or work product privilege) - The Supreme Court of Canada adopted the dominant purpose of the litigation test (as opposed to the sub­stantial purpose or sole purpose test) for determining when litiga­tion privilege should attach to documents - The court, per Fish, J., stated that "I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me con­sistent with the notion that the litigation privilege should be viewed as a limited ex­ception to the prin­ciple of full disclosure and not as an equal partner of the broadly interpreted solici­tor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring in­creased disclosure ..." - See paragraphs 59 and 60.

Practice - Topic 4578

Discovery - Documents - What documents must be produced - Privileged documents -Docu­ments prepared in contemplation of liti­­gation (litigation privilege or work product privilege) - The Supreme Court of Canada held that the common law litiga­tion privilege comes to an end, absent close­ly related proceedings, upon the ter­mi­nation of the litigation that gave rise to the privilege - The court adopted a broad definition of "litigation" for the purpose of determining when privileged ended - The court, per Fish, J., stated that "at a mini­mum, it seems to me, this enlarged defini­tion of 'liti­gation' includes separate pro­ceedings that in­volve the same or related par­ties and arise from the same or a related cause of action (or 'juridical source'). Pro­ceedings that raised issues common to the ini­tial action and share its essential purpose would in my view qualify as well. As a mat­ter of principle, the bounda­ries of this ex­tended meaning of 'litigation' are limited by the purpose for which litigation priv­ilege is granted, namely, as mentioned, 'the need for a protected area to facilitate in­vestigation and preparation of a case for trial by the adversarial advocate' ..." - See para­graphs 39 and 40.

Practice - Topic 4578

Discovery - Documents - What documents must be produced - Privileged documents -Docu­ments prepared in contemplation of liti­gation (litigation privilege or work product privilege) - The Supreme Court of Canada recognized that there was conflict­ing appellate opinion on the issue of whether litigation priv­ilege attached to documents gathered or cop­ied, but not cre­ated, for the purpose of litiga­tion - The court left the issue to be re­solved in a case where the issue was explicitly raised and ful­ly argued, but Fish, J., stated that "... ex­­tending the privilege to the gathering of docu­ments resulting from research or the ex­er­cise of skill and knowledge does a­ppear to be more consistent with the ra­tionale and purpose of the litigation privi­lege. That being said, I take care to men­tion that assigning such a broad scope to the litigation privilege is not intended to automatically exempt from dis­closure any­thing that would have been subject to dis­covery if it had not been remitted to coun­sel or placed in one's own litigation files. Nor should it have that effect" - See para­graph 64.

Words and Phrases

Solicitor-client privilege - The Supreme Court of Canada discussed the meaning and scope of the phrase "solicitor-client privilege" as used in s. 23 of the Access to Information Act, R.S.C. 1985, c. A-1 - See paragraph 4.

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. 14].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [paras. 24, 68].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 24].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 24].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 24].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 24].

Ontario (Minister of Correctional Services) v. Goodis et al. (2006), 350 N.R. 154; 214 O.A.C. 377; 2006 SCC 31, refd to. [para. 24].

Hodgkinson v. Simms (1988), 33 B.C.L.R.(2d) 129 (C.A.), refd to. [para. 29].

Lifford Wine Agencies Ltd. v. Alcohol and Gaming Commission (Ont.) (2005), 76 O.R.(3d) 401 (C.A.), refd to. [para. 29].

Ontario (Attorney General) v. Big Canoe et al. (2002), 167 O.A.C. 125; 62 O.R.(3d) 167 (C.A.), refd to. [para. 29].

College of Physicians and Surgeons (B.C.) v. Information and Privacy Commis­sioner (B.C.) et al. (2002), 176 B.C.A.C. 61; 290 W.A.C. 61; 9 B.C.L.R.(4th) 1; 2002 BCCA 665, refd to. [para. 29].

Gower v. Tolko Manitoba Inc. (2001), 153 Man.R.(2d) 20; 238 W.A.C. 20; 196 D.L.R.(4th) 716; 2001 MBCA 11, refd to. [para. 29].

Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. et al. (2000), 188 N.S.R.(2d) 173; 587 A.P.R. 173; 2000 NSCA 96, refd to. [para. 29].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [paras. 29, 72].

L., Re, [1997] A.C. 16; 195 N.R. 344 (H.L.), refd to. [para. 30].

Three Rivers District Council v. Governor and Company of the Bank of England (No. 6), [2004] Q.B. 916; [2004] E.W.C.A. Civ. 218, refd to. [para. 30].

Hickman v. Taylor (1947), 329 U.S. 495, refd to. [para. 30].

Alberta (Treasury Branches) v. Gher­me­zian (1999), 242 A.R. 326; 1999 ABQB 407, refd to. [para. 32].

Boulianne v. Flynn, [1970] 3 O.R. 84 (H.C.), refd to. [para. 36].

Wujda et al. v. Smith (1974), 49 D.L.R.(3d) 476 (Man. Q.B.), refd to. [para. 36].

Meaney v. Busby (1977), 15 O.R.(2d) 71 (H.C.), refd to. [para. 36].

Canada Southern Petroleum Ltd. et al. v. Amoco Canada Petroleum Co. et al. (1995), 176 A.R. 134 (Q.B.), refd to. [para. 36].

Miller (Ed) Sales & Rentals Ltd. v. Cater­pillar Tractor Co. et al. (1988), 90 A.R. 323 (C.A.), refd to. [para. 38].

Waugh v. British Railways Board, [1979] 2 All E.R. 1169 (H.L.), refd to. [para. 59].

Davies v. Harrington (1980), 39 N.S.R.(2d) 258; 71 A.P.R. 258; 115 D.L.R.(3d) 347 (C.A.), refd to. [para. 59].

Voth Brothers Construction (1974) Ltd. v. Board of Education of School District No. 44 (North Vancouver) (1981), 29 B.C.L.R. 114 (C.A.), refd to. [para. 59].

McCaig and McCaig v. Trentowsky (1983), 47 N.B.R.(2d) 71; 124 A.P.R. 71; 148 D.L.R.(3d) 724 (C.A.), refd to. [para. 59].

Nova, An Alberta Corp. v. Guelph Engi­neer­ing Co. et al. and Daniel Valve Co. et al. (1984), 50 A.R. 199; 5 D.L.R.(4th) 755 (C.A.), refd to. [para. 59].

Lyell v. Kennedy (1884), 27 Ch. D. 1 (C.A.), refd to. [para. 62].

Interprovincial Pipe Line Inc. et al. v. Minister of National Revenue, [1996] 1 F.C. 367; 102 F.T.R. 141 (T.D.), refd to. [para. 68].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487; 69 C.C.C.(2d) 31, refd to. [para. 69].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 23 [para. 21].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, L., The Law of Evidence (3rd Ed. 2002), pp. 197, 198 [para. 30].

Royer, Jean-Claude, La preuve civile (3rd Ed. 2003), pp. 868 to 871 [para. 30].

Sharpe, Robert J., Claiming Privilege in the Discovery Process, in Law in Tran­si­tion: Evidence, [1984] Spec. Lect. L.S.U.C. 163, pp. 164 [para. 28]; 165 [paras. 28, 40].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 745, 746 [para. 30].

Sullivan, Ruth, Sullivan and Driedger on the Construction on Statutes (4th Ed. 2002), pp. 358 to 360 [para. 69].

Watson, Garry D., and Au, Frank, Solici­tor-Client Privilege and Litigation Privi­lege in Civil Litigation (1998), 77 Can. Bar Rev. 315, generally [para. 30].

Wilson, J. Douglas, Privilege in Experts' Working Papers (1997), 76 Can. Bar Rev. 346, generally [para. 30].

Wilson, J. Douglas, Privilege: Watson & Au (1998), 77 Can. Bar Rev. 346, gener­ally [para. 30].

Wilson, J. Douglas, Rejoinder: It's Ele­mentary My Dear Watson (1998), 77 Can. Bar Rev. 549, generally [para. 30].

Counsel:

Graham Garton, Q.C., and Christopher M. Rupar, for the appellant;

Sheldon Blank, on his own behalf;

Luba Kowal, Malliha Wilson and Chris­topher P. Thompson, for the intervenor, the Attor­ney General of Ontario;

Wendy Matheson and David Outerbridge, for the intervenor, The Advocates' So­ciety;

Raynold Langlois, Q.C., and Daniel Bru­net, for the intervenor, the Information Commis­sioner of Canada.

Solicitors of Record:

Attorney General of Canada, Ottawa, On­tario, for the appellant;

Attorney General of Ontario, Toronto, On­tario, for the intervenor, the Attorney General of Ontario;

Torys, Toronto, Ontario, for the intervenor, The Advocates' Society;

Information Commissioner of Canada, Ot­tawa, Ontario, for the intervenor, the In­for­mation Commissioner of Canada.

This appeal was heard on December 13, 2005, before McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella, and Char­ron, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Can­ada was delivered in both official lan­guages on September 8, 2006, and the fol­lowing opinions were filed:

Fish, J. (McLachlin, C.J.C., Binnie, Deschamps and Abella, JJ. concurring) - see paragraphs 1 to 65;

Bastarache, J., concurring in the result (Charron, J., concurring) - see para­graphs 66 to 75.