Information Commissioner of Canada v. Canada (Minister of Public Safety and Emergency Preparedness), (2013) 444 N.R. 268 (FCA)

• Judge: Evans, Stratas and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 09, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 444 N.R. 268 (FCA);2013 FCA 104

Information Commr. v. Can. (2013), 444 N.R. 268 (FCA)

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[French language version follows English language version]

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

Temp. Cite: [2013] N.R. TBEd. AP.025

The Minister of Public Safety and Emergency Preparedness and The Minister of Justice of Canada (appellants) v. The Information Commissioner of Canada (respondent)

(A-375-12; 2013 FCA 104; 2013 CAF 104)

Indexed As: Information Commissioner of Canada v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court of Appeal

Evans, Stratas and Near, JJ.A.

April 17, 2013.

Summary:

A requester asked for disclosure of a protocol from the Department of Justice and the RCMP under the Access to Information Act. Both respondents refused her request on the basis of exemptions to disclosure set out in the Act. The Information Commissioner of Canada applied under s. 42 of the Act for a review of the respondents' decision.

The Federal Court, in a decision reported at 415 F.T.R. 167, allowed the application and ordered the respondents to disclose the protocol. The respondents appealed.

The Federal Court of Appeal allowed the appeal in part. The court ordered disclosure of all but a small portion of the protocol. The small portion was remitted to the access coordinators for their reconsideration.

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege - A requester asked for disclosure of a protocol entered into by the Department of Justice and the RCMP (respondents) - The respondents refused her request on the basis of, inter alia, a solicitor-client privilege exemption (s. 23 of the Access to Information Act) - The Information Commissioner of Canada applied for a review of the respondents' decision - The Federal Court allowed the application and ordered the respondents to disclose the protocol - The protocol did not contain legal advice and was not within the continuum of legal advice - It was an agreement between the respondents setting out their respective roles and responsibilities when the RCMP possessed documents that were relevant to civil litigation against the Crown - The respondents appealed - The Federal Court of Appeal allowed the appeal in part - The protocol consisted of 17 paragraphs - The last 14 paragraphs were not privileged - They were a negotiated and agreed-upon operational policy formulated after any legal advice had been given and after any continuum of communication that needed to be protected - They did not necessarily embody or reflect any advice previously given - The first three paragraphs embodied legal advice and were privileged - They memorialized, as background, the content of certain legal obligations of the Crown for the benefit of the respondents' personnel who were engaged in document management - The court remitted to the access coordinators the question of whether, as a matter of discretion, the first three paragraphs should be disclosed.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 19].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 19].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 23].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 23].

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. 23].

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. 23].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 25].

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. 25].

Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 2 F.C. 762; 184 N.R. 139 (F.C.A.), refd to. [para. 26].

Samson Indian Nation and Band v. Canada - See Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Balabel and Another v. Air India, [1988] 2 W.L.R. 1036 (C.A.), refd to. [para. 27].

Three Rivers District Council et al. v. Bank of England (2004), 329 N.R. 298; [2004] UKHL 48, refd to. [para. 27].

Ontario (Minister of Community and Social Services) v. Cropley et al. (2004), 186 O.A.C. 187; 70 O.R.(3d) 680 (Div. Ct.), dist. [para. 29].

Criminal Lawyers' Association (Ont.) v. Ontario (Minister of Public Safety and Security), [2010] 1 S.C.R. 815; 402 N.R. 350; 262 O.A.C. 258; 2010 SCC 23, refd to. [para. 49].

Counsel:

Brian Harvey, for the appellants;

Jill Copeland and Allison Knight, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellants;

Sack Goldblatt Mitchell LLP, Toronto, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on April 9, 2013, before Evans, Stratas and Near, JJ.A., of the Federal Court of Appeal. Stratas, J.A., delivered the following judgment for the court at Toronto, Ontario, on April 17, 2013.