O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat),

• Jurisdiction: Nova Scotia
• Judge: MacDonald
• Neutral Citation: 2001 NSSC 6
• Citation: (2000), 191 N.S.R.(2d) 103 (SC),2001 NSSC 6,10 CPR (4th) 129,191 NSR (2d) 103,191 NSR(2d) 103,(2000), 191 NSR(2d) 103 (SC),191 N.S.R.(2d) 103
• Date: 29 November 2000
• Court: Supreme Court of Nova Scotia (Canada)

O'Connor v. N.S. (2000), 191 N.S.R.(2d) 103 (SC);

 596 A.P.R. 103

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. JA.009

IN THE MATTER OF an appeal pursuant to section 41 of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5;

Daniel O'Connor (appellant) v. Her Majesty the Queen in the Right of Nova Scotia as represented by Dr. Patricia Ripley Deputy Minister of the Priorities & Planning Secretariat (respondent)

(SH No. 165903; 2001 NSSC 6)

Indexed As: O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat)

Nova Scotia Supreme Court

MacDonald, A.C.J.

November 29, 2000.

Summary:

The Nova Scotia Government undertook a critical review of all existing programs. Eighty-six of 1126 programs were elimi­nated. O'Connor sought the release of infor­mation respecting the review under the Freedom of Information and Protection of Privacy (FOIPOP) Act. The Government released some information. O'Connor sought the assistance of the FOIPOP Review Officer. More information was released but the Government withheld some information alleging it was protected by Cabinet confi­dentiality. O'Connor appealed.

The Nova Scotia Supreme Court ordered the release of information respecting the 86 eliminated programs but held that the infor­mation respecting the remaining programs was properly withheld.

Crown - Topic 7211.1

Examination of public documents - Free­dom of information - Bars - Cabinet confi­dences - Section 13(1) of the Freedom of Information and Protection of Privacy Act permitted the withholding of information that "would reveal the substance of deliber­ations of the Executive Council or any of its committees" - The Nova Scotia Supreme Court held that to interpret the "substance of deliberations" as protecting all information forming the basis of Cabi­net deliberations would paint Cabinet confidentiality with too broad a brush - However, s. 13(1) protected more than actual deliberations - It protected infor­mation that would infer the substance of Cabinet deliberations - Advice was part of the deliberation process and deserved s. 13(1) protection - However, the facts upon which the advice was based need not be protected - See paragraphs 10 to 26.

Crown - Topic 7211.1

Examination of public documents - Free­dom of information - Bars - Cabinet confi­dences - Section 13(1) of the Freedom of Information and Protection of Privacy Act permitted the withholding of information that "would reveal the substance of deliber­ations of the Executive Council or any of its committees" - Section 13(2)(c) provided that s. 13(1) did not apply to background information used in making a decision if, inter alia, the decision had been made public or had been implemented - Section 3(a)(i) defined background information as "any factual material" - Section 3(a)(ii) to (xii) defined background information to in­clude such information as a public opinion poll, statistical survey, appraisal, report, study, etc. - The Nova Scotia Supreme Court stated that, to avoid redun­dancy, the information referred to in s. 3(a)(ii) to (xii) must mean more than factual material - See paragraphs 38 and 39.

Crown - Topic 7211.1

Examination of public documents - Free­dom of information - Bars - Cabinet confi­dences - The Nova Scotia Government undertook a critical review of all existing programs and eliminated 86 programs - The information was prepared by the secretariat of Cabinet's Priorities and Planning Committee - O'Connor sought the release of information respecting the review under the Freedom of Information and Protection of Privacy Act - The Gov­ernment withheld some information alleg­ing it was protected by Cabinet confiden­tiality (s. 13(1)) - The Nova Scotia Supreme Court held that the withheld information constituted advice given and/or recommendations made to a Cabinet com­mittee and was protected - However, as advice and recommendations respecting the 86 eliminated programs had already been acted upon, relevant "background infor­mation" respecting those programs could be released (s. 13(2)(c)) - See paragraphs 10 to 43.

Crown - Topic 7211.1

Examination of public documents - Free­dom of information - Bars - Cabinet confi­dences - The Nova Scotia Government undertook a critical review of all existing programs - The information was prepared by the secretariat of Cabinet's Priorities and Planning Committee - O'Connor sought the release of information respect­ing the review under the Freedom of Infor­mation and Protection of Privacy Act - The Government withheld some informa­tion alleging it was protected by Cabinet confidentiality (s. 13(1)) - Some of the members of the relevant Cabinet subcom­mittees were not in Cabinet - O'Connor argued that because the material was shared beyond Cabinet, the Government had waived its right to Cabinet confiden­tiality - The Nova Scotia Supreme Court rejected the argument - Sharing this infor­mation with fellow caucus members out­side of Cabinet did not undermine the purposes of Cabinet confidentiality - There was no basis to transform this limited disclosure to public disclosure - See para­graphs 44 to 48.

Words and Phrases

Substance of deliberations - The Nova Scotia Supreme Court discussed the mean­ing of this phrase as used in s. 13(1) of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 - See para­graphs 28 to 26.

Cases Noticed:

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81; 35 D.L.R.(4th) 16, refd to. [para. 15].

Aquasource Ltd. v. Freedom of Infor­mation and Protection of Privacy Com­missioner (B.C.) et al. (1998), 111 B.C.A.C. 95; 181 W.A.C. 95 (C.A.), refd to. [para. 20].

Jaslowski v. Manitoba (Minister of Justice) (1999), 140 Man.R.(2d) 112 (Q.B.), refd to. [para. 24].

Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada et al. (2000), 189 N.S.R.(2d) 290; 590 A.P.R. 290 (S.C.), refd to. [para. 45].

R. v. Chief Constable of the West Mid­lands Police, [1994] H.L.J. No. 35, refd to. [para. 46].

Stevens v. Prime Minister (Can.), [1997] 2 F.C. 759; 127 F.T.R. 90; 144 D.L.R.(4th) 353 (T.D.), refd to. [para. 47].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, sect. 3(a) [para. 38]; sect. 13(1), sect. 13(2) [para. 4].

Authors and Works Noticed:

Dreidger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 131 [para. 10].

Counsel:

Graham J. Steele, for the appellant;

Louise W. Walsh Poirier, for the respon­dent.

This appeal was heard at Halifax, Nova Scotia, before MacDonald, A.C.J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 29, 2000, with written release on January 12, 2001.