Date: 19990608
Docket: T-85-97
OTTAWA, ONTARIO, THIS 8th DAY OF JUNE 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
SIERRA CLUB OF CANADA, a national organization
concerned with environmental protection and restoration
and a non-profit corporation duly constituted on April 7, 1992
by Letters Patent under the Canadian Corporation Act
Applicant
- and -
THE MINISTER OF FINANCE OF CANADA
THE MINISTER OF FOREIGN AFFAIRS OF CANADA
THE MINISTER OF INTERNATIONAL TRADE OF CANADA and
THE ATTORNEY GENERAL OF CANADA
Respondents
- and -
ATOMIC ENERGY OF CANADA LIMITED (AECL)
Intervenor
DIRECTIONS
[1] A case management conference was held on May 31, 1999 at the request of counsel for Atomic Energy of Canada Limited (AECL) for the purpose of discussing a proposed motion to be brought by AECL seeking to put certain documents into the record under a confidentiality order. The need for the case management conference arises from the fact that AECL wishes the application itself to be confidential. AECL proposes to file affidavits on its motion which would contain confidential information. The confidential documents would be included as Exhibits to the affidavits but, significantly, would not be disclosed to the representatives of the other parties unless a confidentiality order were made as a result of the motion.
[2] The Sierra Club objects to this procedure. The Sierra Club"s basic objection is that this is a matter of public interest, and that the Courts generally and this Court in particular are under a "constitutional imperative" to be open public courts. The Sierra Club fears that the introduction of any element of confidentiality in these proceedings would inevitably lead to the entire proceedings, or significant portions thereof, being drawn within the circle of confidentiality.
[3] I have considerable sympathy for the position being advanced by the Sierra Club. On the other hand, it is not necessary for me to decide the confidentiality issue any further than is necessary to allow AECL"s motion to be brought. For that reason, I am prepared to give the directions sought, subject to some modifications.
[4] AECL proposed to file the Confidential Documents themselves without providing copies to the other parties until a Confidentiality Order is made. I am not prepared to create a situation in which the Court has before it documents which are not before all parties to the proceeding . In any event, I do not believe that the documents themselves would assist me in determining if a Confidentiality Order is required as I am unable to assess these documents in context. The Confidential Documents shall not be filed unless they are provided to all parties upon such terms as AECL and the parties are able to agree.
[5] Finally, I do not agree that the giving of these directions need be the subject of any confidentiality. While the need for confidentiality occasionally creates an exception to the principle of open justice, it is an exception which should be crafted as narrowly as possible. In particular, there is no compelling reason why the public should not know what it is not allowed to know. These directions will form part of the public file.
DIRECTIONS
UPON THE REQUEST OF the Intervenor Atomic Energy of Canada Limited made at a case management meeting (the "Case Management Meeting") held in Ottawa on May 31, 1999 for directions regarding procedures applicable to a motion (the "Confidentiality Motion") to be brought by AECL seeking an order the ("Confidentiality Order"):
| (a) granting leave to AECL to file a supplementary affidavit (the "Supplementary Affidavit") exhibiting certain documents (collectively the "Confidential Documents"); and |
| (b) pursuant to Rule 151(1) of the Federal Court Rules, 1998, requiring that the Supplementary Affidavit and the Confidential Documents be treated as confidential for the purposes of the Application; |
AND UPON HEARING the submission of counsel for AECL, counsel for the Applicant and counsel for the Respondent Ministers;
| (1) The Confidentiality Motion shall be heard in camera. |
| (2) The Supplementary Affidavit, the Confidential Documents and all other materials (the "Other Materials") if any, served and/or filed by AECL in support of the Confidentiality Motion shall be treated as confidential under Rule 151 (1) of the Federal Court Rules, 1998 for the purposes of the Confidentiality Motion. |
| (3) AECL shall serve the Applicant and the Respondent with |
| (a) the Supplementary Affidavit, |
| (b) the Other Materials, if any, |
| and file those documents with the Court with proof of service at least 7 days before the day set out in the notice of motion for the hearing of the Confidentiality Motion, sealed and clearly marked with the following legend: "Material to be Treated as confidential Pursuant to paragraph 3 of the Directions of the Honourable Mr. Justice Pelletier dated June 8, 1999". |
| (4) Unless otherwise ordered by this court, access to the Supplementary Affidavit and the Other Materials, if any, shall be limited to such of the following persons only: |
| (a) the respective solicitors of record for the Applicant and the Respondents and any solicitors assisting such solicitors in the proceeding (collectively, the "solicitors"), provided that each of said Solicitors provides a written undertaking to the Court in accordance with Rule 152(2) of the Federal Court Rules, 1998 ; |
| (b) students-at-law and necessary secretarial and clerical personnel employed by the respective solicitors; |
| (c) Ms. Elizabeth May, Executive Director of the Applicant; |
| (d) a maximum of one expert or consultant retained by the Applicant or the Respondents (an "expert" for the purposes of this proceeding; and |
| (e) any necessary secretarial and clerical personnel employed by such expert; |
| (I) who have agreed, in writing in the form attached hereto as Annex "A"; |
| (i) to be bound by the terms and conditions of this Order; |
| (ii) to submit themselves to the jurisdiction of this Court for enforcement thereof; and |
| (iii) that they have received, read and understood, a copy of this Order, and |
| (II) in respect of whom each such agreement is dated and delivered to Osler, Hoskin & Harcourt, solicitors for AECL, prior to the disclosure of the Supplementary Affidavit and the Other Materials, if any, to that person. |
| (5) The following provisions shall apply to any cross-examination ("Cross-Examination") on the material filed in the Confidentiality Motion: |
| (a) the information disclosed at and the transcript of the Cross-Examination shall be treated as confidential pursuant to Rule 151(1); |
| (b) the following persons only are entitled to attend at the Cross-Examination: |
| (i) the solicitors for AECL and such other representatives of AECL as AECL may deem advisable; |
| (ii) (A) the court reporter, |
| (B) solicitors for the Applicant and the Respondents, and |
| provided that such persons have agreed in the form attached hereto as Annex "A" |
| (i) to be bound by the terms and conditions of these Directions, |
| (ii) to submit themselves to the jurisdiction of this Court for enforcement thereof and |
| (iii) that they have received, read and understood, a copy of these Directions, and in respect of whom each such agreement is dated and delivered to Osler, Hoskin & Harcourt, solicitors for AECL, prior to the commencement of the Cross-Examination; and |
| (c) AECL shall file the transcript of the Cross-Examination with the Court at least 7 days before the day set out in the notice of motion for the hearing of the Confidentiality Motion, sealed and clearly marked with the following legend: "Material to be Treated as Confidential Pursuant to paragraph 5 of the Directions of the Honourable Mr. Justice Pelletier dated June 8, 1999". |
| (6) AECL shall not file the Confidential Documents with the Court unless the Confidential documents are also provided to the other parties upon such terms as the parties are able to agree. If the parties are able to agree, AECL shall file the Confidential Documents separately with the Court at least 7 days before the day set out in the notice of motion for the hearing of the confidentiality Motion, sealed and clearly marked with the following legend: "Material to be Treated as Confidential Pursuant to paragraph 6 of the Directions of the Honourable Mr. Justice Pelletier dated June 8, 1999". |
| (7) If, at the conclusion of the hearing of the Confidentiality Motion, the Court declines to issue the Confidentiality Order: |
| (a) the Confidential Documents if filed with the Court shall be returned forthwith to the solicitors for AECL; |
| (b) the Applicant and the Respondents shall return forthwith to AECL all copies of the Supplementary Affidavit, the Confidential Documents if provided to them, and any other materials served upon them by AECL in connection with the Confidentiality Motion, and the solicitors for AECL shall provide a receipt evidencing their return; and |
| (c) the Court file in respect of the confidentiality Motion will be sealed and not form part of the Record on the Application. |
| (8) Notwithstanding any other provision of these Directions, these Directions shall not preclude AECL from dealing with the Confidential Documents, the Supplementary Affidavit and the Other Materials, if any, in any manner it deems appropriate. |
| (9) Matters disclosed in the Case Management Meeting shall be treated as confidential pursuant to Rule 151(1), and shall not amount to a waiver of rights of privilege and/or confidentiality which may be asserted in this Application or another proceeding or context. |
| (10) These Directions shall continue in effect after the final disposition of the Confidentiality Motion, including any appeal thereof, and this Honourable Court shall retain jurisdiction to deal with any issues relating to these Directions, including, without limitation, their enforcement. |
| (11) Any of the Applicant, the Respondents and AECL may bring a motion at any time to modify any aspect of these Directions. Further, this Honourable Court may modify any aspect of these Directions on its own initiative, after giving notice to the parties and hearing any submissions counsel may wish to make. |
"J.D. Denis Pelletier"
Judge
ANNEX "A"
| TO: OSLER, HOSKIN & HARCOURT |
The undersigned hereby acknowledges, covenants and agrees that [he/she]:
| (a) has received a copy of the Directions of Pelletier J. of June 8, 1999 in Federal Court File No. T-85-97 (the "Directions") attached hereto as Schedule "A" and has read and understood the terms thereof; |
| (b) is a person described in subparagraph 4(a),(b),(c)(d) or (e) of the Directions; |
| (c) is bound by and subject to the terms of the Directions; and |
| (d) submits [himself/herself] to the jurisdiction of the Federal Court of Canada in respect of the enforcement of the Directions. |
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