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Date: 20040504

Docket: T-653-02

Citation: 2004 FC 655

Ottawa, Ontario, this 4th day of May, 2004

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                   ROBERT GILLES GAUTHIER

and NATIONAL CAPITAL NEWS

                                                                                                                                           Applicants

                                                                           and

                                                    THE MINISTER OF JUSTICE

                                                                                                                                        Respondent

and

THE PRIVACY COMMISSIONER OF CANADA

Intervener

REASONS FOR ORDER AND ORDER

[1]                Mr. Robert Gilles Gauthier (the "applicant") seeks judicial review, pursuant to section

41 of the Privacy Act, R.S.C. 1985, c. P-21, of the decision of the Access to Information and Privacy ("ATIP") Director of the Department of Justice ("DOJ"), dated February 13, 2001.

In that decision, the ATIP Director, acting as the Minister of Justice's delegate, denied


Mr. Gauthier's request under section 12 of the Privacy Act for disclosure of certain documents

containing personal information pertaining to himself and his company, the National Capital News. Disclosure was denied primarily on the grounds that certain documents were exempt from disclosure pursuant to sections 26 and 27 of the Privacy Act. The applicant seeks an order pursuant to section 48 of the Privacy Act that DOJ disclose the requested personal information to him, subject only to any conditions that the Court deems appropriate. The applicant also seeks an order pursuant to section 52 of the Privacy Act, requiring that the respondent pay costs.

BACKGROUND

[2]                Mr. Gauthier founded the newspaper, the National Capital News, in 1982. Since that time, he has sought active membership in the Parliamentary Press Gallery, a private association which administers access to the Press Gallery's precincts and facilities at Parliament, through a system of accreditation of journalists. The Ontario courts, as well as this Court, following New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319, have held that the ultimate authority to allow access to the Parliamentary facilities is a matter of parliamentary privilege of the Speaker of the House of Commons and not subject to review of the Court.[1]

[3]                In the past twenty years Mr. Gauthier has initiated numerous legal challenges to his denial of full membership in this association. Notably, the applicant pursued a complaint to the United Nations' Human Rights Committee for the International Covenant on Civil and Political Rights, arguing that his right to freedom of expression, including the right to seek, receive and impart information, as set out in article 19 of that international covenant, was violated through his denial of access to the Press Gallery at Parliament. The Committee in its "Views" released in April 1999 agreed with the applicant. It found that the applicant's right to receive and impart information was restricted in such a way that was not justified by law, in this case, the doctrine of parliamentary privilege. While the government of Canada could rely on a private organization to control and restrict access to the parliamentary press facilities, such restrictions were not shown to be necessary and proportionate to the goal of ensuring the effective operation of Parliament and the safety of its members. The Committee stated that the scheme for access to the parliamentary press facilities should be fair and reasonable, and the application of such should be transparent with an effective system of recourse.

[4]                In seeking his personal information held at DOJ, the applicant attests in an affidavit filed in this proceeding that he desires to correct what he believes are certain misrepresentations and prejudicial or inaccurate information about him contained in files held by the DOJ. The applicant believes that such information is affecting the manner in which the government has responded and continues to respond to his inquiries in regards to Press Gallery access.

[5]                On September 5, 2000 the applicant made a request pursuant to section 12 of the Privacy Act for information related to him personally, and to his company, the National Capital News, which was held by the DOJ. The ATIP office interpreted his request for information as applying to the time after his last access to information request, that is August 22, 1998 up to and including September 5, 2000.

[6]                The ATIP office of the DOJ provided the applicant with a preliminary package of 531 pages of information on October 10, 2000. The ATIP office informed the applicant that it was waiting for responses to consultations in relation to further records and the applicant would be informed as soon as the consultation responses were received. The ATIP office proceeded to review the responses from various sections of the DOJ where information relative to the applicant's request had been located.

[7]                By letter dated February 13, 2001, the ATIP office provided a final package of 154 additional pages relevant to Mr. Gauthier's request. In this letter, signed by Anne Brennan, Director of the ATIP office, it was noted that some pages and portions thereof were found exempt from release pursuant to section 26 (personal information of another individual) and section 27 (solicitor-client privilege) of the Privacy Act.


[8]                By letter dated March 14, 2001, the office of the Privacy Commissioner of Canada informed the ATIP office of DOJ that the Privacy Commissioner had received a complaint from Mr. Gauthier on February 22, 2001, alleging that he did not receive all the personal information he was entitled to receive and that his privacy request was not processed in a reasonable amount of time.

[9]                In a letter dated June 12, 2001, the office of the Privacy Commissioner of Canada informed the ATIP office of the results of their investigation into the applicant's complaint. The Privacy Commissioner found that the ATIP office had not provided the applicant with the requested information within the time limit set out in the Privacy Act and that the applicant had not been provided with a notice of extension of the 30-day time period set out in the Privacy Act. The Privacy Commissioner concluded that this aspect of the applicant's complaint was well-founded.

[10]            Throughout November and December 2001, the Privacy Commissioner's office reviewed the pages that were released in part and the pages that were exempted in their entirety and requested that the Director of the ATIP office review pages 1, 5 and 697 for disclosure.    The ATIP office undertook further consultations with various divisions of the DOJ.

[11]            Under cover letter dated January 11, 2002, the Director of the ATIP office released six additional pages to the applicant, five were released in their entirety and one was released in part. After such disclosure, there remained a total of 74 pages which were not released either in their entirety or in part. This information can be categorized as follows:

(a) 52 pages were found entirely exempt pursuant to sections 26 and/or 27 of the          Privacy Act;


(b) 17 pages were found exempt in part pursuant to sections 26 and/or 27 of the Privacy Act;

(c) 2 pages were duplicates (pages 812 and 699);

(d) 3 pages were not relevant and did not contain personal information in regards to the applicant (pages 359, 363 and 469)

[12]            By letter dated March 7, 2002, the Privacy Commissioner of Canada informed the applicant of its findings in relation to his complaint that the DOJ had improperly withheld personal information from him pursuant to sections 26 and 27 of the Privacy Act. The Privacy Commissioner agreed with DOJ's decision to refuse to disclose the information to the applicant on the basis of both sections 26 and 27.

[13]            The Privacy Commissioner concluded that after careful review of the information withheld under section 27, the Director of the ATIP office of DOJ was authorised to refuse disclosure of this information. The Privacy Commissioner found that it was evident that all of the information qualified for the section 27 exemption as "information prepared by or for a solicitor for the purpose of providing advice, or for litigation purposes." The Commissioner had requested that DOJ reconsider the exercise of its discretion to exempt with respect to some of the information, resulting in the January 11, 2002, disclosure of six additional pages of information, referred to above.

[14]            The respondent has filed two affidavits in this proceeding. The first from Kerri Clark, who commenced managing the ATIP office of DOJ in November 2001 and has the delegated authority pursuant to section 73 of the Privacy Act to make decisions on behalf of the Minister of Justice regarding the application of Privacy Act exemptions. The second affidavit is from Anne Brennan who was Director of the ATIP office with the DOJ from 1998 until March 7, 2001, and had delegated section 73 authority.

[15]            Pursuant to the order of Justice Martineau of this Court, dated August 6, 2002, these affidavits have been filed with the Court in both a public and confidential form. The confidential affidavit of Kerri Clark contains the records, found at Exhibits 23 and 24, which the respondent has refused to disclose. The confidential affidavits were provided for the Court's review, but pursuant to the August 6, 2002 order, were not provided to the applicant.

[16]            The Privacy Commissioner of Canada sought leave to be added as a party to this judicial review, pursuant to subsection 42(c) of the Privacy Act, due to the position taken by the applicant in his pleadings that the Court has the jurisdiction to review the findings of the Privacy Commissioner on judicial review by way of section 41 of the Privacy Act. This Court granted the request for party status by order dated October 9, 2003, and therefore the Privacy Commissioner of Canada filed written submissions and appeared as a respondent at the hearing.


[17]            At the outset of the hearing, the applicant conceded that the Court lacked the claimed jurisdiction to review the Privacy Commissioner's findings in this judicial review and the proceedings thereafter were confined to a review of the Minister's delegate's decision. References to the respondent, hereafter in these reasons, are solely to the Minister of Justice.

ISSUES

[18]            1. What is the appropriate standard of review in this case?

2. Did the Minister's delegate err in determining that the records in question were exempt from disclosure to the applicant due to solicitor-client privilege?

3. Should costs be awarded to the applicant?

PARTIES' POSITIONS AND ANALYSIS

[19]            The purpose of the Privacy Act, as set out in section 2 of that Act, is to protect the privacy of individuals with respect to their personal information that is held by the government of Canada and also provide a right of access to such personal information. The Privacy Act must be interpreted in harmony, as a "seamless code", with provisions of the Access to Information Act, R.S.C. 1985, c. A-1 ("Access Act"): see Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66 at paras. 21-22.

[20]            Subsection 12(1) of the Privacy Act, coupled with Privacy Act Extension Order, No. 2, SOR/89-206, provides that all individuals present in Canada have a right to access any personal information which is under the control of a government institution, subject only to the specific exemptions to disclosure as set out in the Privacy Act.

[21]            The jurisprudence of this court has held that access to information should not be frustrated except in the clearest of circumstances, and that exemptions to access should be strictly construed: Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), Canada (Information Commissioner) v. Canada (Immigration and Refugee Board) (1997), 140 F.T.R. 140 and Lavigne v. Canada (Commissioner of Official Languages) (1998), 157 F.T.R. 15, aff'd (2000), 261 N.R. 19 (F.C.A.), aff'd [2002] 2 S.C.R. 773.

[22]            The burden of proof, on a balance of probabilities, in demonstrating that information is exempted from disclosure rests on the party resisting disclosure; in this case, the respondent bears the burden of proof: Reyes v. Canada (Secretary of State) (1984), 9 Admin. L.R. 296 at 299 (F.C.T.D.) and also section 47 of the Privacy Act.                       

[23]            The review process for government department decisions relating to refused disclosure after a subsection 12(1) request under the Privacy Act requires the submission of a complaint to the Privacy Commissioner of Canada pursuant to section 29 of that Act. Then, if the results of that investigation are not satisfactory to the complainant, a right of review to the Federal Court exists by virtue of section 41.


Standard of Review

[24]            In the present case, the respondent refused to disclose certain records after finding that they were exempt from disclosure pursuant to sections 26 and 27 of the Privacy Act. The propriety of the section 26 exemption has not been argued by counsel in this application and the submissions have instead focussed on the refusal of disclosure based on the solicitor-client exemption found in section 27. Section 27 provides:


27. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege.

27. Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui sont protégés par le secret professionnel qui lie un avocat à son client.


[25]            The applicant submits that after applying the pragmatic and functional approach, as recently confirmed by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the appropriate standard of review in this case should be correctness.


[26]            The applicant characterizes the decision of whether a document is subject to solicitor-client privilege to be a question of mixed fact and law and that in such decisions the Court has more experience than that of the decision-maker, the Director of the ATIP office of DOJ. The applicant refers to Gold v. Canada (Solicitor General) (1992), 55 F.T.R. 102 where it was held that assessing whether documents fall under a claim of solicitor client privilege is a matter particularly within the ability of the court to determine.

[27]            The respondent department submits that the section 27 exemption grants a discretionary power to a government institution to refuse disclosure, as evidenced by the word "may" in section 27. The respondent relies on Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, cited with approval by Justice LaForest, in dissent but with the support of the majority on this point, in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.

[28]            In Kelly, supra, it was held that discretionary exemptions involve two determinations by the government institution, the first involving a factual determination, which the court may review on a correctness standard, and the second determination involving a discretionary decision as to whether the material should nonetheless be disclosed, where the court should not attempt to exercise such discretion de novo. The respondent also refers to Cemerlic v. Canada (Solicitor General) (2003), 228 F.T.R. 1, where the Kelly, supra, reasoning was recently applied by this court and it was held that factual determinations within discretionary exemptions, as well as mandatory exemptions, are subject to the correctness standard.


[29]            The respondent also relies on Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.) at para. 39, reversed in part, 2002 SCC 75 and Rubin v. Canada (Canada Housing and Mortgage Corp.), [1989] 1 F.C. 265 (C.A.) at 276, in arguing that the standard of review in regards to discretionary exemptions is whether the discretion was exercised "within its proper limits and on proper principles" and "in good faith and for some reason which is rationally connected to the purpose for which the discretion is granted".

[30]            In my opinion, the appropriate standard of review in this case is correctness. The pragmatic and functional approach directs that four factors must be considered by the Court in determining the appropriate standard of review for a particular administrative decision: (1) the existence of any privative clause or statutory right of appeal, (2) the expertise of the tribunal relative to that of the reviewing court in regards to the question at issue, (3) the purpose(s) of the legislation as a whole and the provisions at issue in particular, and (4) the nature of the question- being law, fact or mixed fact and law. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, Dr. Q., supra, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[31]            Turning to the first factor, the Privacy Act explicitly provides a right of review to the Federal Court, by virtue of section 41, if a complaint to the Privacy Commissioner has already been made:


41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

41. L'individu qui s'est vu refuser communication de renseignements personnels demandés en vertu du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à la protection de la vie privée peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 35(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation.


Therefore, this factor points to a minimal degree of deference to the ATIP decision.


[32]            Secondly, the decision-maker, the Director of the ATIP office, does not have a greater amount of expertise relative to the Court on the issue of whether documents are subject to solicitor-client privilege. Such a matter is clearly within the particular expertise of the Court: see Gold, supra.    Further, in the context of a section 41 application for review, the government institution is regarded as having lesser expertise regarding the interpretation of legal questions in comparison to the Court: see Canada v. RCMP, supra, in the context of a judicial review involving the Access Act.

[33]            I note that the section 27 exemption implies that the decision-maker has an element of discretion in determining whether a document that is found to be solicitor-client privileged may nonetheless be disclosed. This is evidenced by the words "may refuse to disclose" rather than "shall refuse to disclose". In my opinion, while section 27 does involve some discretion, the determination of whether the documents are subject to solicitor-client privilege relates to only the first stage of the analysis as set out in Kelly, supra, pp. 148-9 and Cemerlic, supra, paras. 13-14. Such determination is not a discretionary one.

[34]            Moving to the third factor of the pragmatic and functional approach, one of the primary purposes of the Privacy Act, as set out in section 2, is to allow individuals access to their personal information that is held by the government of Canada. That section states:



2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.

2. La présente loi a pour objet de compléter la législation canadienne en matière de protection des renseignements personnels relevant des institutions fédérales et de droit d'accès des individus aux renseignements personnels qui les concernent.


[35]            As stated by the Supreme Court of Canada in Lavigne, supra, andDagg, supra, the "overarching purpose" of access to information legislation is to ensure a citizen's meaningful participation in the democratic process and privacy legislation is to be viewed as necessary in order to preserve the autonomy of the individual in a free and democratic society.

[36]            The purpose of the particular provision at issue in this judicial review, section 27 of the Privacy Act, must also be regarded as fundamental to our society. Shielding information developed in the solicitor-client relationship from disclosure is a central underpinning within the administration of justice and the functioning of the rule of law. The balancing of these interests points to a less deferential standard of review, in that an independent review by the court will be required when such important interests are at stake.    

[37]            Finally, the nature of the question at issue in the present case is one of mixed fact and law, that is involving the interpretation of the legal definition of solicitor client privilege, followed by its application to the information at dispute, the critical information being what is contained within the 69 pages of material found to be exempt from disclosure pursuant to section 27 of the Privacy Act.

Solicitor-Client Privilege Exemption

[38]            The applicant refers to the description of solicitor client privilege in the Canada Evidence Act, R.S.C., 1985, c. C-5, section 91 and also to descriptions of this term in the jurisprudence. The applicant submits that two problems arise in the application of the privilege in this case, the first being a "question of legitimate purposes and lawful advice" and the second dealing with "the propriety of the claim for privilege unattached to an owner".

[39]            The applicant argues that some of the disclosed information indicates that lawyers with the DOJ "trivialized" or "minimized" the Human Rights Committee's Views and demonstrates an effort to avoid compliance with Canada's obligations under international law. The applicant submits that this leads to a reasonable apprehension that at least some of the lawyers involved in creating the documents sought by the applicant were operating outside their professional obligation to uphold the law. The applicant submits that solicitor-client communications will not be privileged when such communications are not for a legitimate purpose or for lawful advice, the example being if a client attempts to obtain legal advice that would facilitate a crime or fraud, such advice is not protected by the doctrine of solicitor-client privilege.

[40]            The respondent submits that the exemption set out in section 27 of the Privacy Act protects both solicitor-client advice and litigation privilege. The respondent cites cases which have interpreted the similar exemption in section 23 of the Access Act as protecting both types of privilege. The respondent refers to the importance of solicitor-client privilege in the administration of justice, and its importance for fostering an open relationship between a lawyer and her client, in which both can communicate freely.


[41]            The term "solicitor-client privilege" used in section 27 of the Privacy Act is not defined in that statute. Accordingly, the common law principles of this term should be applied. The importance of and rationale for solicitor-client privilege, that is recognized as a fundamental, substantive rule of law in Canada, has been set out on numerous occasions: see R. v. McClure, [2001] 1 S.C.R. 445 at 453-9, Solosky v. The Queen, [1980] 1 S.C.R. 821 and Smith v. Jones, [1999] 1 S.C.R. 455 at 474-6.

[42]            There are only a few, clearly defined exceptions to this privilege. The two raised by the applicant in this proceeding are communications between a solicitor and client which are directed towards an unlawful purpose, i.e. communications that facilitate the commission of a crime or fraud, and secondly, the issue of the existence of a client who may have waived the privilege.

[43]            The applicant submits that he has been able to glean from some of the disclosed information that the solicitors at the DOJ had "trivialized" or "minimized" the UN Human Rights Committee's Views and were attempting to avoid compliance with Canada's international obligations under the International Covenant on Civil and Political Rights. I respectfully disagree. The information to which the applicant refers, particularly one document released to him whereby a solicitor with DOJ indicates that her client did not want the summary of the Views decision of Mr. Gauthier's case to stand alone on the government's public website, does not give rise to the apprehension that the records at issue in this proceeding were communicated for the purpose of providing advice that would facilitate the breaking of any law.


[44]            Solicitor-client privilege as set out in section 27 of the Privacy Act includes both solicitor-client communications as well as litigation privilege, that is documents which were produced when there was a reasonable prospect of litigation and produced for the "dominant purpose" of preparing for such litigation: General Accident Assurance Co. v. Chruz (1999), 180 D.L.R. (4th) 241 (O.C.A.) and Commercial Union Assurance Co. PLC v. M.T. Fishing Co. (1999), 162 F.T.R. 74, aff'd (1999), 244 N.R. 397 (F.C.A.). See also Weiler v. Canada Minister of Justice), [1991] 3 F.C. 61 (T.D.) where this court held that the solicitor-client privilege exemption contained in the Privacy Act included both communication and advice between a lawyer and her client and litigation privilege, and Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.) where both types of privilege were found to be included in the Access Act's solicitor-client privilege exemption.


[45]            I have reviewed the exempted records attached to the confidential affidavit of Kerri Clark at Exhibits 23 and 24, and I am satisfied, with a few specific exceptions that are described below, that the records contain information which involves solicitor-client advice or notes and recommendations prepared in contemplation of litigation, that is the government's response to the Human Rights Committee's decision and also in response to a variety of other legal proceedings initiated by the applicant. Secondly, I am satisfied that they do not contain advice directed towards an unlawful purpose or end. The applicant's argument that the information disclosed to him indicates that the DOJ allegedly minimized the United Nation's Committee's Views on Mr. Gauthier's case is not akin to a situation where a lawyer provides advice to a client that would facilitate a crime or fraud, therefore, an exception to solicitor-client privilege is not warranted on this ground.

[46]            The applicant's second challenge to the privilege maintained by the respondent is that solicitor-client privilege cannot apply in the absence of an "owner" of the privilege. The applicant argues that a client must exist in order for the privilege to arise, as only the client has the right to consent to disclosure. The applicant refers to the public affidavit of Anne Brennan and argues that this affidavit does not reveal that the client(s) of the solicitors at the DOJ had any input into whether the disputed documents would be disclosed, but rather the consultations which occurred were primarily between different lawyers within various sections at the DOJ. The applicant says that the public affidavit of Kerri Clark is similarly flawed, in that there is no mention of any "client" being consulted. The applicant acknowledges that client consultations may be revealed in the confidential affidavit of Kerri Clark, to which the applicant does not have disclosure.

[47]            The applicant submits that the solicitors at the DOJ appear to have overstepped their authority either by asserting privilege without a client having claimed it, or by not giving the client an opportunity to determine if the privilege would be waived.


[48]            The respondent submits that a client clearly exists in this situation, that is the executive branch of the Government of Canada which includes the various departments for whom the Minister and the lawyers who work in the DOJ act as solicitor. The respondent relies on R. v. Campbell, [1999] 1 S.C.R. 565 and Stevens v. Canada (Prime Minister), [1998] 4 F.C. 89 (C.A.), where it was held that solicitor-client privilege equally applies to the provision of legal services for the government by government lawyers, as it does to lawyers involved in providing services in private practice and is of great importance to the government in performing its mandate.

[49]            As held in Campbell, supra, Stevens, supra, and Weiler, supra, solicitor-client privilege attaches to legal advice provided by "in-house" lawyers to their client(s) in various departments of the government, as well as to documents prepared in anticipation of litigation. As stated by Linden J.A. in Stevens, supra, at paragraph 22:

A second preliminary matter that must be considered in resolving the problem before us is that the identity of the client is irrelevant to the scope or content of the privilege. Whether the client is an individual, a corporation, or a government body there is no distinction in the degree of protection offered by the rule. In the case of a corporation or government the precise identity of the client may be more problematic, which may give rise to difficulties in determining whether or not the privilege has been waived. Also, it may be difficult to determine whether the privilege has been lost in some cases, where it is unclear who may claim the privilege and who may waive it within a corporate or a government context. However, these difficulties do not affect the substance of the right. Furthermore, I can find no support for the proposition that a government is granted less protection by the law of solicitor-client privilege than would any other client. A government, being a public body, may have a greater incentive to waive the privilege, but the privilege is still its to waive.

[Emphasis added]

[50]            It is trite law that the privilege belongs to the client and can only be waived by the client and not the solicitor: see McClure, supra, Solosky, supra.    In the present case, a client clearly exists, namely the Government of Canada as represented by the Department of Justice, therefore, the first branch of the applicant's argument in this regard is without merit.

[51]            Next, I do not accept the second branch of the applicant's submission. In order to accept it, I would have to find that the DOJ solicitors failed to consult with the several departments concerned in order to determine if solicitor-client privilege would be waived, and that such failure then invalidates the privilege as asserted by the ATIP Director of the DOJ pursuant to section 27 of the Privacy Act. It is clear that solicitor-client privilege exists whether or not the client is aware of the exact parameters of such obligation of confidentiality, and until instructions to waive the privilege have been received from the client, a lawyer must maintain the privilege. The question that the applicant raises in the present case is whether a lawyer is bound to inquire or consult with their client about a request for disclosure of solicitor-client privileged information and receive an answer as to whether the client will waive such privilege. On this particular issue, neither the applicant nor the respondent has provided any case authority.

[52]            As noted in Stevens, supra, in circumstances where the client is the government, certain difficulties in determining whether or not the privilege has been waived may arise. However, I am of the view that these difficulties do not lead to a presumption that a solicitor of the government has acted without instructions from his client and has failed to keep his client informed of the ongoing developments in a case, even where there is no explicit evidence of the government having turned its mind to the possibility of waiving the privilege. Such a presumption would have to be made in this case in order for this Court to accept the applicant's argument.

[53]            The respondent's affidavit evidence relied on by the applicant does not indicate that the mentioned solicitors failed, as part of their professional obligations, to confer with their clients about the applicant's request for information. Unless clear evidence to the contrary is shown, a solicitor is presumed to have relayed all information about a particular case to his or her client. If the client had desired to waive its privilege, then the solicitors at the DOJ would be obliged to carry out their client's wishes. The lack of reference to waiver must be regarded as the client failing to assert such waiver.

Review of the Exempted Material

[54]            As noted above, I have reviewed the 52 pages exempted in their entirety in Exhibit 23 of Ms. Clark's confidential affidavit and the 17 pages exempted in part found in Exhibit 24. I find that in Exhibit 23, one page, #131 should not have been exempted as it contains no privileged information and merely states facts available on the public record, namely that an earlier challenge by the applicant had been dismissed for delay by the Federal Court.

[55]            Of the 17 pages exempted in part that were disclosed to the Court in Exhibit 24, I find that six should not have been withheld from the applicant. These pages are described in the schedule attached to these reasons, all page references in this schedule being to the respondent's application record.


Costs

[56]            The applicant has sought costs of this application, pursuant to section 52 of the Privacy Act. Subsection 52(2) permits the award of costs even where an applicant is unsuccessful if the Court is of the opinion that the application "raised an important new principle in relation to this Act". The respondent opposes the award of costs, arguing that the applicant has failed to raise any important new principle in relation to the interpretation of any provision of the Privacy Act.

[57]            In my opinion, no costs should be awarded to the applicant, as he failed to raise any important, new principle in relation to the interpretation of section 27 of the Privacy Act and he has achieved, at best, limited success in obtaining further disclosure. However, given the mixed result, pursuant to my discretion under section 52(1) of the Privacy Act and Rule 400 of the Federal Court Rules, 1998, SOR/98-106, I decline to order costs for the respondent.


ORDER

THIS COURT ORDERS that this application for judicial review is allowed only in part. It is directed that:

1. The respondent is to disclose to the applicant page 131 found in Exhibit 23 to the confidential affidavit of Kerri Clark;

2. The respondent is to disclose to the applicant the pages noted in the attached schedule found in Exhibit 24 to the confidential affidavit of Kerri Clark;

3. Disclosure of these materials need not be made for a period of thirty (30) days after the date of this Order in case an appeal is filed;

4. No order as to costs.

   "Richard G. Mosley"

F.C.J.


SCHEDULE

Page Number and Description of Document

Reason why it is not exempt pursuant to s. 27 of the Privacy Act

183: Memo concerning the applicant' privacy request

No legal advice contained within the document and document not prepared for litigation

184: Continuation of above document

Simply descriptive, no substantive comment that may be subject to solicitor-client privilege

188: Part of email asking when the UN is likely to issue its decision

No legal advice or formulation of litigation strategy involved

189: Summary of UN's decision

Mere summary of the findings of the UN. There is no legal advice, nor is the document prepared for litigation

194: Sentence exempted referring to consultation with legal counsel

Not legal advice or communication or prepared for litigation

195: Same letter as above, different date and "CC'd" to different individuals

Same comments as above


FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:T-653-02

STYLE OF CAUSE:ROBERT GILLES GAUTHIER and

NATIONAL CAPITAL NEWS AND

THE MINISTER OF JUSTICE,

THE PRIVACY COMMISSIONER OF CANADA

PLACE OF HEARING:Ottawa, Ontario

DATE OF HEARING:March 31, 2004

REASONS FOR ORDER

AND ORDER BY:The Honourable Mr. Justice Mosley

DATED:May 4, 2004

APPEARANCES:

Terrance J. GreenFOR THE APPLICANT

Alexander GayFOR THE RESPONDENT

Steven WelchnerFOR THE INTERVENER

SOLICITORS OF RECORD:

TERRANCE J. GREENFOR THE APPLICANT

Barrister & Solicitor

Ottawa, Ontario

MORRIS ROSENBERGFOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

STEVEN WELCHNERFOR THE INTERVENER

Barrister & Solicitor

Nelligan O'Brien Payne LLP

Ottawa, Ontario



[1] See: Gauthier (c.o.b. National Capital News Canada) v. Canada (House of Commons), [2004] F.C.J. No. 83 (C.A.)(QL), Gauthier v. Canadian Press Gallery, [1996] O.J. No. 10 (Gen. Div.)(QL) and Gauthier v. Canada (Speaker of the House of Commons) (November 30, 1994)(Unreported)(Ont. Gen. Div.).


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Date Modified: 2014-04-23