Enbridge Gas New Brunswick Limited Partnership et al. v. New Brunswick, (2016) 447 N.B.R.(2d) 201 (CA)

• Judge: Richard, Green and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 01, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 447 N.B.R.(2d) 201 (CA);2016 NBCA 17

Enbridge Gas v. N.B. (2016), 447 N.B.R.(2d) 201 (CA);

    447 R.N.-B.(2e) 201; 1171 A.P.R. 201

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.021

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.021

Province of New Brunswick (appellant) v. Enbridge Gas New Brunswick Limited Partnership, as represented by its general partner, Enbridge Gas New Brunswick Inc., Enbridge Energy Distribution Inc. and Enbridge Inc. (respondents)

(63-15-CA; 2016 NBCA 17)

Indexed As: Enbridge Gas New Brunswick Limited Partnership et al. v. New Brunswick

Répertorié: Enbridge Gas New Brunswick Limited Partnership et al. v. New Brunswick

New Brunswick Court of Appeal

Richard, Green and Baird, JJ.A.

April 1, 2016.

Summary:

Résumé:

The plaintiff partnership (Enbridge) brought an action to recover losses and damages allegedly resulting from the defendant province's breach of the general franchise agreement (GFA) entered into between Enbridge and the province respecting the delivery of natural gas to the province. Enbridge alleged that the province breached its contractual duty of good faith and fair dealing throughout the tendering process and in the negotiation and performance of the GFA. Enbridge moved for production by the province of a number of disputed documents for which solicitor-client privilege and public interest immunity were claimed.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2015), 438 N.B.R.(2d) 1; 1141 A.P.R. 1, ordered the production of the 800 documents that remained in dispute. The province appealed.

The New Brunswick Court of Appeal allowed the appeal on the ground that the trial judge erred in ordering disclosure of the documents for which solicitor-client privilege and public interest immunity were claimed. For the documents for which solicitor-client privilege was claimed, the trial judge reversed the onus in a situation where the privilege was otherwise properly claimed. For the documents for which public interest immunity was claimed, the trial judge failed to take into account the unchallenged affidavit that sufficiently set out the basis for the immunity.

Crown - Topic 2208

Crown privilege or prerogative - General - Cabinet discussions - [See all Crown - Topic 2209 ].

Crown - Topic 2209

Crown privilege or prerogative - General - Public interest privilege - The New Brunswick Court of Appeal stated that "In summary, a claim of public interest immunity will generally be successful if there is evidence the communication was the result of 'high-level' policy deliberations at the policy formation stage, including confidential advice and recommendations to Cabinet, memoranda, letters, agendas and documents regarding Cabinet deliberations. The persuasive public policy argument against disclosure is the potential for a chilling effect on Cabinet deliberations, where clearly, candid and open dialogue concerning sensitive matters should not be tempered by the fear of later divulgation." - See paragraph 39.

Crown - Topic 2209

Crown privilege or prerogative - General - Public interest privilege - The plaintiff partnership (Enbridge) brought an action to recover losses and damages allegedly resulting from the defendant province's breach of the general franchise agreement (GFA) entered into between Enbridge and the province respecting the delivery of natural gas to the province - Enbridge alleged that the province breached its contractual duty of good faith and fair dealing throughout the tendering process and in the negotiation and performance of the GFA - Enbridge moved for production by the province of a number of disputed documents for which public interest immunity was claimed - The trial judge ordered production of the documents - There was no information as to why the documents came within public interest immunity - Alternatively, given the age of the documents, any public interest immunity would have passed - The court ordered that if it failed to recognize a confidential Cabinet document, which may be privileged if it revealed the substance of secret Cabinet discussions, the parties had leave to have such document inspected by the court - The New Brunswick Court of Appeal allowed the province's appeal on the ground that the trial judge erred in ordering disclosure of the documents for which public interest immunity was claimed - The trial judge failed to take into account the unchallenged affidavit that sufficiently set out the basis for the immunity - See paragraphs 36 to 56.

Crown - Topic 2209

Crown privilege or prerogative - General - Public interest privilege - The New Brunswick Court of Appeal stated that "the following important analytic criteria emerge when determining whether or not public interest immunity applies: i) The nature of the policy; ii) The contents of the documents; iii) The level of the decision-making process and the need to protect the confidences of Cabinet; iv) The importance of producing the documents to the administration of justice; v) The time that has elapsed; vi) Any allegation of improper conduct by the executive branch of government towards a citizen ... ; vii) Whether the document relates to policy formation or implementation; viii) Whether the document affects 'present policy'." - See paragraph 47.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - [See all Crown - Topic 2209 ].

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The plaintiff partnership (Enbridge) brought an action to recover losses and damages allegedly resulting from the defendant province's breach of the general franchise agreement (GFA) entered into between Enbridge and the province respecting the delivery of natural gas to the province - Enbridge alleged that the province breached its contractual duty of good faith and fair dealing throughout the tendering process and in the negotiation and performance of the GFA - Enbridge moved for production by the province of documents for which solicitor-client privilege was claimed - The documents were: "(1) 'Internal Employee Documents' for which 'solicitor-client privilege is claimed on the basis they transmit, comment upon or otherwise reveal the substance of legal advice'; (2) 'Solicitor Copied Documents', for which 'solicitor-client privilege is claimed on the basis the solicitor, both in-house, as well as the out-sourced solicitor, is named as a direct addressee of the communication, and the document was created for the "direct purpose" of "seeking or obtaining legal advice"'; (3) 'Communications through Intermediaries' for which 'solicitor-client privilege is asserted on the basis the documents involve communications involving "agents" of the Province of New Brunswick in furtherance of the solicitor-client relationship'" - The trial judge ordered production of the documents - Solicitor-client privilege required a communication between solicitor and client for the seeking or giving of legal advice and the communication must have been intended to remain confidential - Internal documents copied to counsel, without any information as to why the documents were copied or whether they were to solicit legal advice, were not protected by solicitor-client privilege - Copying a communication to counsel, by itself, did not result in solicitor-client privilege - Communications from third parties (consultant and accounting firm) were not protected by solicitor-client privilege where the third parties were not acting as conduits between the province and counsel and there was no evidence that the information assembled by the third parties was anything more than garnering information from sources and passing it on to the province or counsel - The New Brunswick Court of Appeal allowed the province's appeal on the ground that the trial judge erred in ordering disclosure of the documents for which solicitor-client privilege was claimed - The trial judge reversed the onus in a situation where the privilege was otherwise properly claimed - See paragraphs 8 to 35.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The New Brunswick Court of Appeal stated that the following communications had been found to be subject to solicitor-client privilege: "i) Legal advice prepared by lawyers in the Department of Justice, including confidential memorandums prepared for a specific purpose. In Idziak v. Canada (Minister of Justice) ... the Supreme Court extended the privilege to memoranda drafted by government lawyers to a Minister; ii) Legal advice provided by the Department of Justice lawyers for other government departments or agencies. ... In Pritchard, the legal advice was provided to a Human Rights Commission; iii) Legal advice provided by lawyers outside of government to government agencies ...; iv) Legal advice provided by private lawyers concerning the drafting of regulations ..." - See paragraph 18.

Evidence - Topic 4242

Witnesses - Privilege - Solicitor-client communications - Extent of privilege - Communications between solicitor and third party - [See both Evidence - Topic 4241 ].

Cases Noticed:

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Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, refd to. [para. 7].

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. 8].

R. v. Gruenke - see R. v. Fosty and Gruenke.

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 8].

Saint John Shipbuilding Ltd. v. Bow Valley Husky (Bermuda) Ltd. et al. (2002), 251 N.B.R.(2d) 102; 654 A.P.R. 102; 2002 NBCA 41, refd to. [para. 9].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266; 2006 SCC 36, refd to. [para. 10].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 10].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 10].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 10].

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, refd to. [para. 10].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 10].

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. 11].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 14].

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. 14].

MacKenzie v. Davis (2008), 338 N.B.R.(2d) 232; 866 A.P.R. 232; 2008 NBCA 85, refd to. [para. 15].

Lamey v. Rice (2000), 227 N.B.R.(2d) 295; 583 A.P.R. 295 (C.A.), refd to. [para. 16].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 18].

Canada (Ministry of Industry, Trade and Commerce) v. Central Cartage Co. et al. (No. 1) (1987), 23 F.T.R. 174 (T.D.), refd to. [para. 18].

McEwen v. British Columbia (Attorney General) et al., [2013] B.C.T.C. Uned. 517; 2013 BCSC 517, refd to. [para. 18].

Telus Communications Inc. v. Canada (Attorney General) (2004), 329 N.R. 96; 2004 FCA 380, refd to. [para. 18].

Quinn v. Canada (Minister of Justice) et al. (2008), 324 F.T.R. 304; 2008 FC 376, refd to. [para. 18].

Camp Development Corp. v. South Coast Greater Vancouver Transportation Authority, [2011] B.C.T.C. Uned. 88; 2011 BCSC 88, refd to. [para. 19].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356 (C.A.), refd to. [para. 21].

Corrier v. Seely (2009), 340 N.B.R.(2d) 262; 871 A.P.R. 262; 2009 NBCA 3, refd to. [para. 24].

Canadian Broadcasting Corp. v. New Brunswick Broadcasting Co. (1999), 222 N.B.R.(2d) 1; 570 A.P.R. 1 (Q.B.), refd to. [para. 24].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2007), 319 N.B.R.(2d) 14; 823 A.P.R. 14; 2007 NBQB 245, affd. (2007), 327 N.B.R.(2d) 1; 840 A.P.R. 1; 2007 NBCA 85, refd to. [para. 24].

051766 N.B. Ltd. v. Wilbur et al., [2004] N.B.R.(2d) Uned. 39; 2004 NBQB 122, refd to. [para. 28].

Melanson v. Léger et al. (2005), 279 N.B.R.(2d) 276; 732 A.P.R. 276; 2005 NBCA 19, refd to. [para. 33].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 36].

Leeds et al. v. Alberta (Minister of the Environment) et al. (1990), 106 A.R. 105 (Q.B.), refd to. [para. 38].

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Health Services and Support-Facilities Subsector Bargaining Association et al. v. British Columbia, [2002] B.C.T.C. 1509; 2002 BCSC 1509, refd to. [para. 38].

Bennett v. State Farm Fire and Casualty Co. (2013), 398 N.B.R.(2d) 290; 1032 A.P.R. 290; 2013 NBCA 4, refd to. [para. 41].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 82 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 48].

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Johnston and C.H.D. Investments Ltd. v. Prince Edward Island (1988), 73 Nfld. & P.E.I.R. 213; 229 A.P.R. 213 (P.E.I.T.D.), refd to. [para. 53].

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Nunavut (Department of Community and Government Services) v. Northern Transportation Co., 2011 NUCJ 4, refd to. [para. 53].

Counsel:

Avocats:

Catherine A. Lahey, Q.C., for the appellant;

David Duncan Young, for the respondents.

This appeal was heard on November 30, 2015, before Richard, Green and Baird, JJ.A., of the New Brunswick Court of Appeal.

On April 1, 2016, Baird, J.A., delivered the following judgment in both official languages for the Court of Appeal.