PRACTICE |
Privilege |
Québec (Attorney General) v. Canada
T-2834-96
2001 FCT 51, Blais J.
12/2/01
74 pp.
In action by statement of claim to determine obligations of defendant pursuant to Canada Assistance Plan, motion by defendant challenging privileges of non-disclosure claimed by plaintiff--Latter relied on confidentiality of communications between solicitor and client, communications relating to negotiating strategy and/or internal analysis and communications intended for provincial Cabinet--Application of Quebec Code of Civil Procedure, art. 308--Defendant maintained six factors inter alia to be considered: relevance of information and documents and feasibility of filing them so case can be adequately and fairly argued; decision-making level; exact nature of public interest protection of which sought by non-disclosure; precise content of information and documents; time elapsed since documents in question or information sought originated; importance of issue--Defendant alleged plaintiff's affidavits must be detailed and show precise nature of public interest likely to be affected by disclosure of information in respect of which privilege claimed; how public interest would be affected by disclosure of information in question; how public interest should take priority over interests of proper administration of justice--Plaintiff maintained disclosure would give federal government unfair advantage if case at bar settled; likely to adversely affect conduct of relations between Quebec Government and federal government; documents covered by privilege of confidentiality as documents intended for members of Cabinet of Quebec Government; documents included legal opinions and discussions of legal opinions, which should benefit from privilege of confidentiality as professional secrets between solicitor and client--Motion allowed in part--Although documents prepared by public servants working for lower levels of government, this test not conclusive as fact documents may concern decision-making process at highest level of government cannot be ignored: Carey v. Ontario, [1986] 2 S.C.R. 637--Despite sworn statement by Deputy Minister in case at bar, mentioned in CCP, art. 308, Court must determine whether plaintiff's claim regarding public interest justifies granting privilege for documents concerned--Court must make decision by applying various tests--Necessary to inspect each of documents individually to decide whether Court should grant privilege of confidentiality for any of them--Consisted of legal opinions, documents intended for Cabinet, exchanges between various public servants and documents containing appendices which extended over period of more than 25 years--Privilege recognized for legal opinions, discussions of legal opinions and ministerial documents for Cabinet--Less easy to determine need to preserve confidentiality of certain documents which in some cases were medley of financial documents, strategic opinions and continual updates of federal-provincial interplay lasting over 30 years and involving para-governmental organizations which have since disappeared and implementation of federal-provincial agreement which has not been in force for five years--Privilege recognized in case where disclosure could give federal government unfair advantage if case at bar settled or could adversely affect conduct of relations between Quebec and federal governments--About 70 documents inspected--Code of Civil Procedure, R.S.Q. c. C-25.