Southern First Nations Network of Care et al. v. Hughes, 2012 MBCA 99

• Judge: Scott, C.J.M., Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 09, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBCA 99;(2012), 284 Man.R.(2d) 298 (CA)

Southern First Nations v. Hughes (2012), 284 Man.R.(2d) 298 (CA);

      555 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.046

The Southern First Nations Network of Care, The General Child and Family Services Authority, The First Nations of Northern Manitoba Child and Family Services Authority and Child and Family Services All Nations Coordinated Response Network (The "Authorities and ANCR") (appellants) v. The Honourable Edward Hughes, in his capacity as Commissioner under the Manitoba Evidence Act and as appointed pursuant to Order in Council No. 89-2011, dated the 23 rd day of March, 2011 (respondent)

(AI 12-30-07838; 2012 MBCA 99)

Indexed As: Southern First Nations Network of Care et al. v. Hughes

Manitoba Court of Appeal

Scott, C.J.M., Steel and Hamilton, JJ.A.

October 22, 2012.

Summary:

The applicants, agencies involved in child protection and care throughout Manitoba, applied for an order directing the Commissioner in the Inquiry into the circumstances surrounding the death of Phoenix Sinclair to state a case for the Court of Appeal. The issue to which the stated case related was the Commissioner's decision not to order disclosure of transcripts of interviews that the Inquiry's counsel had conducted with witnesses in preparation for public hearings.

The Manitoba Court of Appeal, per Monnin, J.A., in a decision reported at 280 Man.R.(2d) 307; 548 W.A.C. 307, concluded that a case should be stated with respect to disclosure. The Commissioner consequently prepared a stated case with respect to the following two questions: "1. Do the Commission's Amended Rules of Procedure and Practice require the disclosure of witness interview transcripts to the Parties and Intervenors? 2. Do the principles of natural justice and procedural fairness require the disclosure of witness interview transcripts to the Parties and Intervenors?"

The Manitoba Court of Appeal answered "No" to both questions. The court also commented regarding the role of all counsel in public inquiries.

Administrative Law - Topic 7912

Public inquiries - General - Procedural fairness (incl. bias) - [See second Administrative Law - Topic 7997 ].

Administrative Law - Topic 7913

Public inquiries - General - Role of counsel - The Manitoba Court of Appeal commented on the role of all counsel in public inquiries, "to give guidance as to what this court expects from counsel going forward" - The court's comments included that "[I]t is commission counsel who has the primary responsibility to vigorously and completely represent the public interest, including the interests, issues and theories of all parties. In order to do so, commission counsel needs to foster effective communication with all of the parties to the Inquiry. ... Counsel for parties and intervenors with standing should endeavour to assist commission counsel by communicating any issues that are of concern to them and their clients ... While the courts are available to remedy a breach of procedural fairness, it is important that counsel work together toward the common goal of facilitating the important work of a commission of inquiry." - See paragraphs 76 to 82.

Administrative Law - Topic 7965

Public inquiries - Powers of - Re documents - [See first and second Administrative Law - Topic 7997 ].

Administrative Law - Topic 7993

Public inquiries - Practice - Rules of procedure - [See first Administrative Law - Topic 7997 ].

Administrative Law - Topic 7997

Public inquiries - Practice - Documents and reports - Disclosure and use of - The issue to which this stated case related was the Commissioner's decision not to order disclosure of transcripts of interviews that the Inquiry's counsel had conducted with witnesses in preparation for public hearings - The Commissioner submitted that his conclusion that Commission Rule 26 did not cover the transcripts and that Rules 21 to 24 exclusively addressed the disclosure of information obtained through the pre-hearing interview process was a reasonable interpretation of the Rules - The Manitoba Court of Appeal found that the Commissioner's decision to the effect that Rule 26 did not apply to the transcripts was a reasonable interpretation - Consequently, the court answered "No" to the following question: "Do the Commission's Amended Rules of Procedure and Practice require the disclosure of witness interview transcripts to the Parties and Intervenors?" - For the same reasons, Commission Rule 16 did not apply to the transcripts, as argued by the intervenors - See paragraphs 25 to 30.

Administrative Law - Topic 7997

Public inquiries - Practice - Documents and reports - Disclosure and use of - The issue to which this stated case related was the Commissioner's decision not to order disclosure of transcripts of interviews that the Inquiry's counsel had conducted with witnesses in preparation for public hearings - The second question in the stated case was: "Do the principles of natural justice and procedural fairness require the disclosure of witness interview transcripts to the Parties and Intervenors?" - The Manitoba Court of Appeal answered the question in the negative, balancing all of the Baker factors in the context of this case - Procedural fairness, in this instance, was satisfied by the provision of detailed, meaningful summaries of the witnesses' evidence and, therefore, the disclosure of the transcripts was not required - See paragraphs 31 to 39.

Cases Noticed:

Hudson Bay Mining and Smelting Co. v. Cummings, P.C.J. (2006), 208 Man.R.(2d) 75; 383 W.A.C. 75; 2006 MBCA 98, dist. [para. 24].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 28].

Anderson et al. v. Manitoba et al. (2010), 262 Man.R.(2d) 96; 507 W.A.C. 96; 2010 MBCA 113, refd to. [para. 28].

Darcis et al. v. Manitoba et al. (2012), 280 Man.R.(2d) 160; 548 W.A.C. 160; 2012 MBCA 49, refd to. [para. 28].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 28].

2127423 Manitoba Ltd. v. Unicity Taxi Ltd. et al. (2012), 280 Man.R.(2d) 292; 548 W.A.C. 292; 2012 MBCA 75, refd to. [para. 35].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 35].

Friesen (Brian Neil) Dental Corp. et al. v. Director of Companies Office (Man.) et al. (2011), 262 Man.R.(2d) 197; 507 W.A.C. 197; 2011 MBCA 20, refd to. [para. 35].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 37].

Clifford v. Ontario (Attorney General) et al. (2008), 90 O.R.(3d) 742 (Div. Ct.), revsd. on other grounds (2009), 256 O.A.C. 354; 98 O.R.(3d) 210; 2009 ONCA 670, refd to. [para. 47].

Canada (Attorney General) v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321, refd to. [para. 68].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269, refd to. [para. 70].

Chrétien v. Gomery et al., [2009] 2 F.C.R. 417; 333 F.T.R. 157; 2008 FC 802, refd to. [para. 70].

Chrétien v. Canada (Ex-Commissioner, Commission of Inquiry into the Sponsorship Program and Advertising Activities) - see Chrétien v. Gomery et al.

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (5th Ed. 2011), p. 37 [para. 38].

O'Connor, Dennis, The Role of Commission Counsel in a Public Inquiry (2003) 22: Advocates' Soc. J. 9, paras. 18-19 [para. 45].

Ratushny, Ed, The Conduct of Public Inquiries: law, policy, and practice (2009), pp. 220 [para. 77]; 221-22 [para. 78]; 257 [para. 80].

Ruel, Simon, The Law of Public Inquiries in Canada (2010), p. 73 [para. 44].

Counsel:

K.M. Saxberg and S.C. Scarcello, for the appellants;

S.M. Walsh and S. Ruel, for the respondent;

J.J. Gindin and D.A. Ireland, for the intervenors, N. Sinclair and K. Edwards;

R.D. Buchwald and N.D.M. Hamilton, for the intervenor, D. De Gale.

This appeal, as a stated case, was heard on October 9, 2012, before Scott, C.J.M., Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. In reasons written by Steel, J.A., the Court delivered the following judgment, dated October 22, 2012.