Federal Court Decisions

Date: 20040609

Docket: T-1214-02

Citation: 2004 FC 833

Ottawa, Ontario, this 9th day of June, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                         JOAN A. WILLIAMSON

                                                                                                                                            Applicant

                                                                         - and -

                                         THE ATTORNEY GENERAL OF CANADA

representing the Minister designated under the

Cultural Property Export and Import Act

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is a motion by Joan Williamson (the "applicant"), to compel the deponents put forward by the Attorney General of Canada (the "respondent"), Victoria Baker and Michel Francoeur, to answer a number of written cross-examination questions that were objected to on the grounds of solicitor-client privilege.

[2]                The applicant seeks:

1.          An order compelling Virginia Baker and Michel Francoeur to answer cross-examination questions pursuant to Rules 99, 100 and 97 of the Federal Court Rules, 1998, S.O.R./98-166;

2.          Alternatively, directions of this Court with respect to the objections of Victoria Baker and Michel Francoeur pursuant to Rule 318; and

3.          Costs of this motion.

[3]                The applicant's notice of motion dated November 12, 2003 also requests an order compelling the disclosure of two documents which the respondent claims are protected by solicitor-client privilege. Both parties made arguments relating to those documents in their written submissions. At the oral argument of this motion, however, the parties proceeded on the understanding that this motion would only settle the dispute regarding the propriety of the applicant's cross-examination questions. The question of whether solicitor-client privilege attaches to the documents requested by the applicant is left to be answered at a later date.

Background

[4]                The applicant donated property to the Fort Saskatchewan Historical Society, which in turn applied for designation of the property pursuant to the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51. Such designation, if granted, could have had certain favourable tax consequences for the applicant.

[5]                In a letter dated July 3, 2002, the request for designation was refused by Virginia Baker ("Ms. Baker"), who at that time was the Acting Manager of the Movable Cultural Property Program, Heritage Policy Branch with the Department of Canadian Heritage.

[6]                The applicant sought judicial review of Ms. Baker's decision and requested production of the tribunal record pursuant to Rule 317 of the Federal Court Rules, 1998, S.O.R./98-166 as follows:

(1) The minutes, transcript and all notes of the Minister, the Cultural Property Program, Heritage Policy Branch and/or the Cultural Property Directorate related to this matter;

(2) All of the evidence before the Minister, the Cultural Property Program, Heritage Policy Branch and/or the Cultural Property Directorate related to this matter;

(3) All materials considered by the Minister, the Cultural Property Program, Heritage Policy Branch and/or the Cultural Property Directorate related to this matter;

(4) All other materials related to donation to the Fort Saskatchewan Museum and Historic Site.

[7]                Pursuant to Rule 318, the respondent objected to the production of one document on the basis of solicitor-client privilege. The applicant then brought a motion to compel production of the challenged document. The applicant's motion was granted by Justice Heneghan on the grounds that the respondent, in not filing any affidavit evidence, had not met its burden of establishing that the document was privileged: [2002] F.C.J. No. 1689 (QL), 2002 FCT 1234. The Federal Court of Appeal agreed that the respondent had not established privilege, but allowed the appeal so as to permit the respondent time to file affidavit evidence to establish privilege and have the applicant's motion redetermined by this Court: [2003] F.C.J. No. 1425 (QL), 2003 FCA 361.

[8]                Pursuant to the Federal Court of Appeal's judgment, the respondent filed two affidavits: one from the decision-maker, Ms. Baker, the other of Michel Francoeur ("Mr. Francoeur"), General Counsel and Director of the Legal Services Unit at the Department of Canadian Heritage.

[9]                The affidavit of Ms. Baker, sworn October 17, 2003, states as follows:

2. In regard to the application on which I made my decision I asked my director, Catherine Jensen, to contact our legal services unit on my behalf as I required legal advice. She contacted Michel Francoeur with my request for legal advice. Philippe Madgin was assigned to provide me the legal advice I requested. I understood from him at that time that he was the lawyer within the Legal Services Unit of the Department of Canadian Heritage.

3. At the time that I received the requested advice from Philippe Madgin, I expected the communication between us to be and to remain confidential.

4. The advice I received from Philippe Madgin has not been produced in the Certified Documents of the Respondent on the ground that the advice is solicitor-client privileged. The document over which privilege is claimed has previously been filed with the Court in a sealed envelope.

[10]            The second affidavit filed by the respondent was sworn on October 17, 2003 by Mr. Francoeur, a lawyer with the Department of Justice, and states as follows:

3. Through a Memorandum of Understanding between the Departments of Justice and Canadian Heritage, lawyers employed by the Department of Justice are physically located in the Department of Canadian Heritage headquarters in Gatineau, Quebec in the Legal Services Unit. The Legal Services Unit provides professional legal advice to the Department of Canadian Heritage, and includes legal advice on legislation, regulations, directives, cabinet decisions, programs and policies involved in departmental operations.

4. When someone in the Department of Canadian Heritage headquarters requires legal advice, the request is to be made directly to me as the Director of the Legal Services Unit. I then assign a lawyer in the Legal Services Unit to provide the requested legal advice. In some cases the legal advice request may be made directly by a representative of the Department of Canadian Heritage to a lawyer in our Legal Services Unit.

5. I received a request for legal advice from Catherine Jensen, who was Acting Director of the Cultural Property Directorate, forwarded on behalf of Victoria Baker, who was Acting Manager, Movable Cultural Property Program. Ultimately, Philippe Madgin, who was at that time a lawyer in the Legal Services Unit of the Department of Canadian Heritage, was assigned to provide the legal advice requested. Our records indicate that such advice was provided by Philippe Madgin to Victoria Baker.

[11]            The applicant conducted written cross-examination of both of the respondent's deponents. The applicant included questions regarding a November 8, 2001 letter that applicant's counsel had written to Ms. Baker regarding the proposed designation.

[12]            In its written response, dated November 3, 2003, the respondent objected to the following three questions asked of Ms. Baker on the grounds of solicitor-client privilege:

Question 3: Did you provide the letter from Parlee McLaws dated November 8, 2001 to your "legal services unit" either with your request or alternatively at any point thereafter in your review process?

Question 4: Did you directly, or indirectly through Catherine Jensen, request "legal advice" from Michael [sic] Francoeur or Philippe Madgin with respect to any of the matters stated in the letter dated November 8, 2001 from Parlee McLaws?

Question 5: In the written response of Philippe Madgin, was there any reference to the letter dated November 8, 2001 from Parlee McLaws or to any of the matters raised in that letter dated November 8, 2001 from Parlee McLaws?

[13]            The respondent objected to one question Ms. Baker was asked on the basis that it was irrelevant to the issue of whether the document she received is protected by solicitor-client privilege:

Question 2: Were you, on the date of this request, acting as the Minister pursuant to the Cultural Property legislation [section 32(2)] and reviewing the designation of "any institution or public authority" under the legislation?

[14]            Furthermore, the respondent objected to four of the applicant's questions for Mr. Francoeur on the basis that the information sought was protected by solicitor-client privilege. The challenged questions were:

Question 3: Did you provide the letter from Parlee McLaws dated November 8, 2001 to "Philippe Madgin" at any point in his review either with your request or alternatively at any point thereafter in this request process?

Question 4: Were you directly, or indirectly through Catherine Jensen, requested to provide "legal advice" with respect to any of the matters stated in the letter dated November 8, 2001 from Parlee McLaws?

Question 5: In the written response of Philippe Madgin, was there any reference to the letter dated November 8, 2001 from Parlee McLaws?

Question 6: In the written response of Philippe Madgin, was there any reference to any of the matters raised in that letter dated November 8, 2001 from Parlee McLaws?

[15]            The applicant has brought this motion to compel the respondent's deponents to answer the challenged questions which the respondent resists answering on the basis of solicitor-client privilege.

The Applicant's Submissions (Moving Party)

[16]            The applicant submits that the questions asked of Ms. Baker and Mr. Francoeur do not require disclosure of privileged communications, but rather request information that is specific to the issue of whether or not the request to Philippe Madgin or his reply to Ms. Baker referred to the letter from the applicant's counsel. The applicant argues that this Court should order the deponents to answer the questions to which the respondent raises objections.

[17]            The applicant takes issue with the form of the respondent's objection to answering cross-examination questions. In the applicant's view, Rule 99(2), which states that "[a] person who objects to a written examination question may bring a motion to have the question struck out" requires that a motion be brought in order for a party to resist answering questions. Since, on the facts, the respondent has not brought such a motion, the applicant submits that the challenged questions must be answered.

[18]            Relying on Rule 97, the applicant submits that this Court should order the challenged questions to be answered or, in the alternative, strike the affidavits of Ms. Baker and Mr. Francoeur on the ground that they do not establish solicitor-client privilege.

[19]            The applicant further submits that she has been seeking the production of two withheld documents, not simply one document as referred to by Justice Heneghan and the Federal Court of Appeal in earlier proceedings.

[20]            On the issue of solicitor-client privilege, the applicant states that not everything that is done by government lawyers attracts solicitor-client privilege: R. v. Campbell, [1999] 1 S.C.R. 565; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Chan, [2002] A.J. No. 363 (Q.B.)(QL).

[21]            Furthermore, the existence of privilege is premised on a solicitor-client relationship, which the applicant submits did not exist in this case. Instead, the applicant submits that the relationship was that the requested documents were before Ms. Baker when she refused designation. The applicant argues that solicitor-client privilege has no place with the administrative decision-maker in the administrative decision-making process and that in this case, everything in the administrative review process from November 8, 2001 (the date of the letter from applicant's counsel) to when the decision was made on July 3, 2002, is not privileged.

[22]            Relying on Campbell, supra, the applicant argues that she is entitled to make inquiries of Ms. Baker and Mr. Francoeur in relation to at least three subject matters: the nature of their relationship, the subject matter of the legal advice and the circumstances in which it was sought and rendered. These factors, the applicant submits, are relevant to determining whether or not solicitor-client privilege attaches in the circumstances and are therefore proper questions to ask and have answered.   

[23]            The applicant states that Question 2 asked of Ms. Baker is clearly relevant to establishing the nature of the relationship between her and Mr. Francoeur and is also relevant to the capacity in which Ms. Baker was acting when she contacted the Legal Services Unit. Therefore, the applicant argues that the respondent's resistance to answering this question is improper.

[24]            Relying on Chan, supra, the applicant states that the burden to prove irrelevance lies with the respondent, who has not discharged this burden. Furthermore, the applicant submits that when dealing with objections based on irrelevance, it is appropriate for this Court to err on the side of allowing the challenged question.

[25]            The remainder of the challenged questions, in the applicant's view, should be answered because they speak to the second permissible topic set out in Campbell, supra, namely, the subject matter of the legal advice that was sought. The applicant notes that the cross-examination questions she asked Ms. Baker and Mr. Francoeur did not request disclosure of the substance of any legal opinion. Instead, the questions asked whether the advice sought related to the applicant's November 8, 2001 letter to Ms. Baker and/or the issues raised by that letter. In the applicant's view, ordering the challenged questions to be answered strikes an appropriate balance between a need for procedural fairness and the requirements of solicitor-client privilege: Baltruweit v. Canada (Attorney General), [2002] F.C.J. No. 1615 (QL), 2002 FCT 2000.

[26]            Finally, the applicant submits that if Ms. Baker's February 6, 2002 request for legal services exists in written form, it should be added to the sealed document dated May 2, 2002 that has already been provided to the Court. The applicant requests that the respondent be ordered to either inform the Court that no such document exists, or to file the request for legal services with the Court, whether it takes the form of a letter, memorandum or any other document.

The Respondent's Submissions (Responding Party)

[27]            The respondent disputes that it was obliged to bring a motion to have the applicant's objectionable cross-examination questions struck out. By virtue of Rule 100, which states that certain rules relating to oral examination apply to written examination with such modifications as are necessary, the respondent argues that Rule 95 permits it to state the grounds for an objection on the record as an alternative to bringing a motion to strike out questions. The respondent agrees that if this Court determines the challenged questions are proper, it has the authority pursuant to Rule 97 to order them to be answered.

[28]            The respondent submits that Question 2 asked of Ms. Baker is irrelevant because whether she was acting as the Minister has no bearing on the question of whether the document sought by the applicant is protected by solicitor-client privilege. The respondent submits that based on the affidavit evidence of Mr. Francoeur regarding the relationship between the Department of Justice and the Department of Canadian Heritage, it is irrelevant whether Ms. Baker was acting as the Minister. As long as Ms. Baker was an employee of the Department of Canadian Heritage seeking legal advice from a lawyer in the Legal Services Unit, the respondent states that solicitor-client privilege attaches and therefore the questions were properly left unanswered.

[29]            The respondent submits that the remaining challenged questions query privileged communications between solicitor and client regarding which documents Ms. Baker provided to Philippe Madgin, the government lawyer who provided her with legal advice, what specifically Ms. Baker requested of Mr. Madgin and the substance of Mr. Madgin's response. Citing Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, the respondent submits that solicitor-client privilege attaches to the information sought by the applicant either because it was communications relating to obtaining legal advice, or was the substance of the legal advice itself.

[30]            The respondent submits that all three of the Campbell factors relied on by the applicant are addressed by the Baker and Francoeur affidavits. The respondent states that the affidavit evidence sets out that firstly, Ms. Baker was an employee of the Department of Canadian Heritage and Philippe Madgin was a lawyer with the Legal Services Unit, secondly that Ms. Baker was seeking advice with respect to the applicant's file that was before her; and thirdly, provides some information regarding the circumstances of the request for legal advice.

[31]            The respondent submits that the applicant's questions are either improper, for probing privileged matters, or at the very least premature, since this Court has not yet determined whether the documents sought are privileged. The respondent further submits that compelling answers to be provided now may lead to a potential waiver of solicitor-client privilege.

[32]            The respondent submits that although its deponents' affidavit evidence states that February 6, 2002 was the date Mr. Francoeur received Ms. Baker's request for legal services, there is no evidence to indicate that a letter or other written form of the request exists. Alternatively, the respondent submits that even if a letter exists, it is either irrelevant to the judicial review proceeding and therefore not compellable under Rule 317, or is protected by solicitor-client privilege because it constitutes communication to obtain legal advice.

[33]            The respondent urges this Court to decide that it need not answer the challenged questions asked by the applicant. The respondent submits that first, Canadian Jewish Congress v. Canada (Minister of Employment and Immigration) (1995), 93 F.T.R. 172 (T.D.) establishes that solicitor-client privilege can apply when, as here, the client is a department of government and the advising solicitor is employed by the Department of Justice. Second, relying on Pritchard v. Ontario Human Rights Commission (2003), 63 O.R. (3d) 97 (C.A.), aff'd [2004] S.C.J. No. 16 (QL), 2004 SCC 31, the respondent states that statutory decision-makers such as Ms. Baker are entitled to receive confidential legal advice that need not be produced in the course of a subsequent judicial review proceeding. Third, in the respondent's view, the affidavit evidence of Ms. Baker and Mr. Francoeur establishes that Mr. Madgin was acting in his capacity as a professional legal advisor, that the May 2, 2002 document constituted legal advice, and that Ms. Baker expected the information to remain confidential. Since there is no evidence suggesting communication for the purpose of furthering a crime or fraud which would negate otherwise subsisting privilege, the respondent submits that this Court should conclude that the questions asked by the applicant probe areas protected by privileged and therefore need not be answered.

[34]            The respondent requests that this motion be dismissed with costs.

Issue

[35]            Should the respondent's deponents be compelled to answer the cross-examination questions to which the respondent objected?

Relevant Statutory Provisions and Regulations

[36]            Rules 95, 97, 99 and 100 of the Federal Court Rules, supra, provide:

Analysis and Decision

[37]            In her written representations, the applicant submitted that the respondent ought to have brought a motion pursuant to Rule 99(2) of the Federal Court Rules, supra to strike out the objectionable questions. The respondent addressed this argument in its written representations. However, since this issue was not argued or referred to before me by either party, I do not propose to deal with the issue.

[38]            For ease of reference, the objected to written questions asked of Victoria Baker and Michel Francoeur and their responses are as follows:

Victoria Baker

(Question from Written Exam.) 2.    Were you, on the date of this request, acting as the Minister pursuant to the Cultural Property legislation [section 32(2)] and reviewing the designation of "any institution or public authority" under the legislation?

(Response) 2. Tracy King, solicitor for the respondent, objects to me answering this question as it is irrelevant to the issue of whether or not the document I received from Philippe Madgin is solicitor-client privileged.

(Question from Written Exam.) 3. Did you provide the letter from Parlee McLaws dated November 8, 2001 to your "legal services unit" either with your request or alternatively at any point thereafter in your review process?

(Response) 3. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that any information or document I provided to the legal services unit is communication between solicitor and client for the purpose of obtaining legal advice and is therefore privileged.

(Question from Written Exam.) 4. Did you directly, or indirectly through Catherine Jensen, request "legal advice" from Michael [sic] Francoeur or Philippe Madgin with respect to any of the matters stated in the letter dated November 8, 2001 from Parlee McLaws?

(Response) 4: Tracy King, solicitor for the respondent, objects to me answering this question on the basis that communication between solicitor and client for the purpose of obtaining legal advice is privileged.

(Question from Written Exam) 5. In the written response of Philippe Madgin, was there any reference to the letter dated November 8, 2001 from Parlee McLaws or to any of the matters raised in that letter dated November 8, 2001 from Parlee McLaws?

(Response) 5. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that the content of the document I received from Philippe Madgin is communication between solicitor and client for the purpose of giving legal advice and is therefore privileged.

Michel Francoeur

(Question from Written Exam.) 3. Di you provide the letter from Parlee McLaws dated November 8, 2001 to "Philippe Madgin" at any point in his review either with your request or alternatively at any point thereafter in your request process?

(Response) 3. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that any information or document Victoria Baker provided to the legal services unit is communication between solicitor and client for the purpose of obtaining legal advice and is therefore privileged.

(Question from Written Exam.) 4. Did you directly, or indirectly through Catherine Jensen, requested to provide "legal advice" with respect to any of the matters stated in the letter dated November 8, 2001 from Parlee McLaws?

(Response) 4. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that communication between solicitor and client for the purpose of obtaining legal advice is privileged.

(Question from Written Exam.) 5. In the written response of Philippe Madgin, was there any reference to the letter dated November 8, 2001 from Parlee McLaws or to any of the matters raised in that letter dated November 8, 2001 from Parlee McLaws?

(Response) 5. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that the content of the document Victoria Baker received from Philippe Madgin is communication between solicitor and client for the purpose of giving legal advice and is therefore privileged.

(Question from Written Exam.) 6. In the written response of Philippe Madgin, was there any reference to any of the matters raised in that letter dated November 8, 2001 from Parlee McLaws?

(Response) 6. Tracy King, solicitor for the respondent, objects to me answering this question on the basis that the content of the document Victoria Baker received from Philippe Madgin is communication between solicitor and client for the purpose of giving legal advice and is therefore privileged.

[39]            The respondent objected to answering written question number two asked of Victoria Baker because the respondent stated that it was irrelevant whether Ms. Baker was acting as Minister pursuant to the Cultural Property Export and Import Act, supra, for the purpose of determining solicitor-client privilege in this motion. I agree with the respondent.

[40]            Whether or not Ms. Baker is acting as the Minister matters not for the determination of solicitor-client privilege. This is not to say that the issue of what capacity Ms. Baker was acting in is not relevant on the underlying judicial review application.

[41]            The remainder of the questions objected to by the respondent relate to the issue of solicitor-client privilege. The courts have not hesitated to uphold solicitor-client privilege, as broad and all-encompassing subject to limited exceptions. In Descôteaux, supra, Lamer J. (as he then was) stated at page 893:

In summary, a lawyer's client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

[42]            More recently in Pritchard v. Ontario (Human Rights Commission), [2004] S.C.J. No. 16, 2004 SCC 31, Major J. for the Court stated at paragraphs 15, 16, 17 and 18:

15. Dickson J. outlined the required criteria to establish solicitor-client privilege in Solosky v. The Queen [1980] 1 S.C.R. 821, at p. 837, as: "(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii) which is intended to be confidential by the parties". Though at one time restricted to communications exchanged in the course of litigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not: see Solosky, supra, at p. 834.

16. Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of the professional relationship. The privilege, once established, is considerably broad and all-encompassing. In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching "to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established". The scope of the privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct: see Solosky, supra, at p. 835.

17. As stated in R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 2:

Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

The privilege is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful conviction.

18. In Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, this Court confirmed that the privilege must be nearly absolute and that exceptions to it will be rare. Speaking for the Court on this point, Arbour J. reiterated what was stated in McClure, supra:

... solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances and does not involve a balancing of interests on a case-by-case basis. [Emphasis in original.]

(Arbour J. in Lavallee, supra, at para. 36, citing Major J. in McClure, supra, at para. 35.)

[43]            Further, at paragraphs 20 and 21:

20. Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Campbell, supra, at para. 50.

21. Where solicitor-client privilege is found, it applies to a broad range of communications between lawyer and client as outlined above. It will apply with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is "in-house" does not remove the privilege, or change its nature.

[44]            It is with this jurisprudence in mind that the questions objected to by the respondent must be assessed.

[45]            After having reviewed the challenged questions, I am of the opinion that solicitor-client privilege applies and the questions need not be answered by the respondent. Basically, the questions deal with what was requested by Ms. Baker, what was given and what references were contained in the legal opinion to the November 8, 2001 letter from the applicant's solicitor to Ms. Baker. These relate to communications between solicitor and client which involve the giving or seeking of legal advice and which were intended to be confidential. It was therefore proper for the respondent to resist answering these questions.

[46]            The applicant, in her notice of motion, also asked for the disclosure of a document dated February 6, 2002 and a document dated May 2, 2002. The May 2, 2002 document was filed in a sealed envelope with the Court. However, at the hearing, the applicant indicated that whether this Court should compel the respondent to disclose these documents was an issue not for this application but for the next application. Accordingly, I will not deal with these matters in these Reasons. However, if a document dated February 6, 2002 (presumably requesting legal advice) exists, it should be produced to the Court in a sealed envelope for the Court's use if the issue of the applicability of solicitor-client privilege is brought before the Court.

[47]            The applicant also sought, in the alternative, directions relating to the respondent's objections, pursuant to Rule 318. The applicant did not address this issue at the hearing of the motion. Consequently, I will not deal with this matter either.

[48]            If I have misunderstood the position of counsel with respect to the issues in paragraphs 46 and 47 of these Reasons, I retain jurisdiction to deal with these matters.

[49]            The applicant's motion is otherwise dismissed, with costs to the respondent.

                                               ORDER

[50]            THIS COURT ORDERS that the applicant's motion is dismissed with costs to the respondent, subject to my retention of jurisdiction as noted in paragraph 49.

              "John A. O'Keefe"               

J.F.C.

Ottawa, Ontario

June 9, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1214-02

STYLE OF CAUSE: JOAN A. WILLIAMSON

- and -

THE ATTORNEY GENERAL OF CANADA

                                                     

PLACE OF HEARING:                                 Edmonton, Alberta

DATE OF HEARING:                                   December 15, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     June 9, 2004

APPEARANCES:

Nathan Whitling

FOR APPLICANT

Tracy King

FOR RESPONDENT

SOLICITORS OF RECORD:

Parlee McLaws LLP

Edmonton, Alberta

FOR APPLICANT

Department of Justice

Edmonton, Alberta

FOR RESPONDENT