Date: 19990604
Docket: T-827-99
BETWEEN:
FREDERICK GORDON PEET,
Applicant,
- and -
MINISTER OF NATURAL RESOURCES CANADA,
Respondent.
REASONS FOR ORDER
REED J.
[1] The applicant filed a Notice of Application on May 12, 1999, seeking review of the respondent's refusal to provide certain documents in response to a request he had made under subsection 12(1) of the Privacy Act, R.S.C. 1985, c. P-21. On the same date, he filed the present motion for further information concerning those documents.
[2] The respondent had refused to disclose the requested documents on the ground that they were subject to solicitor/client privilege. The applicant seeks information about the documents similar to that that must be provided when privilege is asserted by a party, as part of the document disclosure required for the purposes of an action. The applicant asserts that without such information he cannot properly and completely prepare his case. The applicant's Notice of Motion reads as follows:
| THE MOTION IS FOR the respondent to provide to the applicant and to the Court, for each document listed in the NOTICE OF APPLICATION, the following information together with any additional information the Court may require: |
| (1) the name of the originator of the document |
| (2) the name(s) of the recipient(s) of the documents |
| (3) the names of those to whom the documents were copied |
| (4) the date of the document |
| (5) the subject of the document |
| (6) the means of sending the document (e.g. e-mail, sealed envelope) |
| (7) the nature of the document |
| (8) other particulars sufficient to identify the document |
| (9) the grounds for the claim for solicitor-client privilege |
| and, that this information be provided at the time the respondent provides his Notice of Appearance, if he intends to oppose the Application. |
| THE GROUNDS FOR THE MOTION ARE that in order to properly and completely prepare his case, the applicant needs to receive the explanations required by Section 47 of the Privacy Act prior to the submission of his supporting affidavits and documentary exhibits and prior to the submission of his memorandum of fact and law rather than at some later time. |
[3] The cases cited by the applicant, all of which deal with the information that is required with respect to documents for which privilege is claimed in an affidavit of documents prepared for an action, are: Grossman v. Toronto General Hospital (1983), 41 O.R. (2d) 457 (H.C.J.); Creaser v. Warren (1987), 36 D.L.R. (4th) 147 (N.S.C.A.); Gilbert v. Brown, [1991] F.C.J. No. 1164 (T-1457-90); Jones (Guardian ad litem of) v. Stephens (1992), 66 B.C.L.R. (2d) 31.
[4] Counsel for the respondent argues that to give the applicant the information he seeks is to give him disclosure of the documents. I am not persuaded that this is so. The information is of a type that is likely to be publicly disclosed on the hearing of the application on its merits. This would not include, of course, detailed information as to the contents of the document, that would undercut a valid claim to privilege.
[5] I am not persuaded that the applicant's present motion can succeed. As noted, the cases he cites relate to claims for privilege set out in affidavits of documents (see Federal Court Rule 223). The requirement for particularity in an affidavit of documents filed for the purposes of an action is described in the Gilbert case, by Mr. Justice Joyal, as being to give the plaintiff an opportunity "to decide if indeed there is a prima facie case for privilege". That is, the requirement relates to a step in the proceeding prior to any challenge to a claim of privilege. The requirement is designed to assure opposing counsel that the claim for privilege is, at least, on its face reasonable. If opposing counsel is not satisfied that the claim is a valid one, then, a challenge to the claim may be commenced by motion to the Court, and the documents will be filed in the Court for a determination.
[6] In the present case, the privileged nature of the documents has already been challenged by the filing of the application for judicial review. The documents will be placed before the Court and a determination of the validity of the claim will be made. There is no need in that context for the respondent to demonstrate that a prima facie claim for privilege exists. The privilege has been asserted and the assertion has been challenged.
[7] In addition, preliminary motions, in general, are discouraged in judicial review applications because of the summary nature of those proceedings; see Pharmacia Inc. v. Minister of National Health and Welfare (1994), 58 C.P.R. (3d) 209, esp. at 215 (F.C.A.). Importing the requirements that pertain to affidavits of documents, filed pursuant to Federal Court Rule 223, into the application for judicial review that is used to challenge the non-disclosure of documents under either the Access to Information Act, R.S.C. 1985, c. A-1, or the Privacy Act would be to add an unnecessary step to that procedure.
[8] There is jurisprudence that in some circumstances the disclosure of the documents that are in dispute in these types of applications will be granted to an applicant's counsel in order to allow counsel to argue; see Hunter v. Canada (Consumer and Corporate Affairs), [1991] 3 F.C. 186 (C.A.) and Stienhoff v. Canada (Minister of Communications) (1996), 114 F.T.R. 108.
[9] Those cases do not deal with a situation in which an applicant is acting for himself " when counsel is given access to the documents he or she is required to give an undertaking to the Court that the documents in question will not be disclosed to anyone, including his or her client. Also, those cases do not deal with claims of solicitor-client privilege but with non-disclosure for other reasons described in the exemptions set out in the Access Act . The cases also concern requests for disclosure of the whole document not merely limited information relating thereto. At the same time, it is clear when deciding whether to grant conditional disclosure for the purposes of arguing a privacy or access case, the Court must have the disputed documents before it in order to determine whether the disclosure that is sought is really necessary. The documents in dispute in the present case have not, at this stage of the proceeding, yet been filed with the Court. Such will occur in the normal course when the respondent responds to the applicant's affidavit.
[10] In summary, incorporating rules that apply to claims for solicitor-client privilege in affidavits of documents filed in actions into the present proceeding will unnecessarily complicate and lengthen that proceeding. Also, I cannot conclude on the basis of the record that the additional information sought by Dr. Peet is necessary to enable him to properly pursue his application.
[11] The motion will therefore be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
4 June 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-827-99
STYLE OF CAUSE: Frederick Gordon Peet
v.
The Minister of Natural Resources Canada
REASONS FOR ORDER OF REED J.
dated June 4, 1999
APPEARANCES BY:
| Dr. F. Peet on his own behalf |
| Mr. J. Hayes on behalf of the Respondent |
| Worthington, Simm & David |
SOLICITORS OF RECORD:
| Mr. Morris Rosenberg on behalf of the Respondent |
| Deputy Attorney General |
of Canada