Date: 19990427
Docket: T-1111-98
BETWEEN:
SHELDON BLANK & GATEWAY INDUSTRIES LTD.,
Applicant,
- and -
THE MINISTER OF THE ENVIRONMENT
Respondent.
REASONS FOR ORDER
REED J.
[1] Counsel for the applicant brings a motion for access to certain documents that the Minister of Environment refuses to disclose under the Access to Information Act on the ground of solicitor-client privilege. Counsel seeks disclosure to allow him to argue that the documents are not subject to privilege.
[2] The applicant commenced a request on February 14, 1997 pursuant to the Access to Information Act for:
| "Documents distributed in advance of the new Pulp and Paper Mill Effluent Regulations P.C. 1992-961 9 May 1992. The distribution list itself. |
| Communications between Environment Canada and D.F.O. with regards to possible prosecution of S. Blank and Gateway Industries Ltd. The contents of the following files: 4186-NW 2978, 4236-3, 4236-37/A151, ISB/RRD#51816. CAN/CSA-2731-M91.4236-37/G196, 4236-37/G, 4808-1, 4236-1, 4236-1 (W & N.R.), 4192-1, 4808-6(H.Q.)" |
He subsequently asked for disclosure of the content of additional files:
| 1. the content of file number 4192-12 entitled "investigations" for the period of May 7/92 to the present. |
| 2. the content of file number 4236-37/G151 entitled "Abitibi-Price Paper Co." from 1990 to the present. However, you indicated you only want the information pertaining to the Abitibi-Price Pinefalls mill. |
| 3. the content of file number 4236-37/G196 entitled "Gateway Industries Papermill Ltd." for the period of 1984 to the present. |
[3] This led to copies of some documents being provided to him. Others were not provided on the ground that they were exempt from disclosure under the terms of the Act. Complaints were made to the Information Commissioner and additional documents were disclosed but some were still determined to be exempt. It is these that are the focus of the present motion.
[4] The majority decision of the Federal Court of Appeal in Hunter v. Canada (Minister of Consumer and Corporate Affairs) (1991), 127 N.R. 214, esp. at 228 applies:
| "In most cases, however, the court should tend to give counsel, if not access, at least enough relevant information to enable him/her to argue the application . . . "a minimum standard of disclosure ought to be instituted . . ." |
[5] Mr. Justice Decary, speaking for a majority of the Court in the Hunter case went on to note that in that case it was the nature of the information, rather than its specific content that was in issue and, therefore, "counsel need not see the actual information at issue in order to prepare adequately." He stated that what constitutes the "minimum standard of disclosure" will be a question of fact in each case, and that partial access could be granted and conditions could be imposed. At page 228, he stated:
| . . . The Court has the power to control access to counsel, the extent of that access and the conditions of that access. It can refuse access to the actual information and be satisfied, as it should have in this case, with the communication to counsel of a summary or a general description of the actual information. It can grant counsel access to the actual information, in whole or in part. It can impose conditions of access that vary according to the nature or sensitivity of the information, ranging from allowing counsel to examine the documents in his/her office and keep them in a safe, to allowing counsel to examine the documents under surveillance in the Court House. In cases where access is given to the actual information at issue, counsel would be expected to provide an undertaking that he/she will not disclose it to his/her client. Where the information at issue is of the "secret" type, only counsel with security cleared status would be entitled to examine it. In brief, there is no magic formula. The objective in each case is to protect the confidentiality of the information while allowing an intelligent debate on the question of its disclosure. |
[6] I have reviewed the documents in issue and have concluded that the appropriate disposition of the motion is to require the Respondent to provide more detailed information concerning the documents for which non-disclosure on the basis of solicitor-client privilege is asserted. I understand that it is only the documents or parts thereof alleged to be covered by section 23 of the Access to Information Act that are in issue. Disclosure to counsel of other documents, on his signing of an undertaking, has or will occur except for the documents covered by section 15 (disclosure that could reasonably be expected to be injurious to the conduct of international affairs) and 69 (the disclosure of cabinet confidences). Counsel for the applicant does not contest the non-disclosure to him of the documents that it is asserted fall within these last two categories.
[7] An order will issue, then, requiring the respondent to prepare a list of the documents for which it is alleged solicitor-client privilege pertains, disclosing the addressee of the documents, the addressor, the date, the title, and a brief description of why solicitor-client privilege is being claimed. This last will likely require a brief description of the content of the documents. I am not persuaded that counsel for the applicants needs more information than this to assist in making his legal argument.
Winnipeg, Manitoba
April 27, 1999
"B. Reed"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1111-98
| STYLE OF CAUSE: SHELDON BLANK & GATEWAY INDUSTRIES LTD. v. THE MINISTER OF THE ENVIRONMENT |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: April 26, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Madame Justice Reed
DATED: April 27, 1999
APPEARANCES
Mr. Mark M. Schulman, Q.C. for the Applicant
Mr. Robert B. Lindey
Dept. of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Respondent
SOLICITORS OF RECORD
Schulman & Schulman
Barristers & Solicitors
740 Centra Gas Building
440 St. Mary Avenue
Winnipeg, Manitoba
R3C 3T1 for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent