A-273-90
Consumer and Corporate Affairs (Appellant)
v.
Iain Hunter (Respondent)
INDEXED AS: HUNTER V. CANADA (CONSUMER AND CORPO-
RATEAFFAIRS) (CA.)
Court of Appeal, Pratte, Mahoney and Décary
JJ.A.—Ottawa, January 9 and March 26, 1991.
Access to information — Application for access to declara
tions made by ministers and senior officials under Conflict of
Interest and Post-Employment Code — Review by Federal
Court under s. 41 — Whether Court may order confidential
access by counsel for purpose of arguing application — Act, s.
47, requiring Court to take every reasonable precaution to
avoid disclosure — Common law practice of giving counsel
confidential access — Parliament creating array of provisions
for access and secrecy — S. 47 giving court discretion as to
access to counsel, means of protecting confidentiality — Trial
Judge erred in ordering access without first viewing
documents.
Practice — "Gap" rule — Access to Information Act, s. 45
providing application to be heard under rules made by Court
— Court not having adopted such rules — R. 1402(8) applied,
by analogy, to applications under Act, s. 41.
This was an appeal and cross-appeal from a Trial Division
order that the defendant give the plaintiff's counsel access to
records which the defendant claims to be exempt from disclo
sure under the Access to Information Act but not requiring that
the deponent of an affidavit answer questions upon his
cross-examination.
The plaintiff applied for access to the declarations filed by
the Prime Minister, cabinet ministers and senior officials pur
suant to the government's conflict of interest and post-employ
ment guidelines. Those guidelines require federal office holders
to report certain property and investments. The appellant
rejected the request, asserting the exemption for confidential
personal records under subsection 19(1). Respondent's com
plaint to the Information Commissioner having failed, he
applied to the Trial Division for a review under section 41 of
the Act.
In the Trial Division, the appellant filed an affidavit of the
Assistant Deputy Registrar General of Canada. The deponent
was examined, but declined to answer questions requesting him
to produce the records at issue, to identify the persons whose
records were affected, or to detail disciplinary measures taken
against persons who had contravened the guidelines. On the
basis of Trial Division case law, and considering that the
respondent's counsel held a security clearance, Madam Justice
Reed ordered that counsel be given access, but not that the
questions be answered.
Held, the appeal should be allowed, and the cross-appeal
dismissed.
Per Pratte J.A. (concurring in the result): The Court may, in
general, order a party to produce relevant evidence in its
possession for inspection by other parties. The Court may not,
however, exercise that power where to do so would imply a
determination of the very issue before the Court, or where the
law forbids it. The Access to Information Act, s. 47, explicitly
requires the Court to "take every reasonable precaution ... to
avoid disclosure" of the record in question until it has been
determined that the information must be disclosed under the
Act.
The questions put to the deponent on disciplinary measures
for breach of the conflict of interest policy were irrelevant, as
the only issue before the Court was whether the Act authorized
the appellant to refuse to disclose the records.
Per Décary J.A.: The common law rule that hearings should
not be held in camera, that representations should not be made
ex parte and that parties should not be denied access to
material relevant to the Court's decision arose from three
fundamental premises on which our judicial system is based:
that trials are in open court, that the procedure is adversarial,
and that the rules of natural justice apply, including the rule
that each party sees everything relevant to the decision. One of
the exceptions to the rule occurs in proceedings where what is
at issue is the confidentiality of a document. One method
developed by the courts to protect confidential information,
while preserving the fundamental principles of the judicial
system, is to give counsel access upon their undertaking not to
reveal the information, even to their clients.
Parliament has, in a number of statutes, legislated an array
of techniques for balancing the protection of sensitive informa
tion against the possibility for the public, or affected parties, to
challenge the claim to confidentiality. Where it considered the
needs of the state required it, it has excluded any challenge; it
has dictated specific techniques for protecting information; and,
in some statutory regimes, it has left it to the courts to choose
the most appropriate technique. When the legislator provides
for various techniques in a single statute, it intends particular
approaches to apply to particular situations.
Section 47 of the Act, the ambiguity of which was the only
certain thing about it, was to be interpreted in the context of
the entire Act. The purpose of the Act is stated, in section 2, to
be "to provide a right of access to information ... in accord
ance with the principle that government information should be
available to the public ... and that decisions on the disclosure
of government information should be reviewed independently of
government". The Act, in section 48, places upon the govern
ment institution the burden of justifying a refusal to disclose. It
provides, most unusually, for unsuccessful applications to have
their costs where an application "has raised an important new
principle".
The Act stipulates some situations in which refusal to dis
close is mandatory, others where it is optional. If Parliament
had intended to direct the Court to deny all access to counsel
pending the determination of disclosure, it would have said so
in language like that in sections 35 and 52, or in the wording
used in the Canadian Security Intelligence Service Act and the
Immigration Act. That Parliament did not explicitly put aside
principles of openness and adversarial process in section 47
commands a narrower construction thereof. Any ambiguity in
section 47 should, therefore, be resolved in such a way as to
encourage adversarial proceedings, to favour disclosure, to give
meaning to the burden of proof, and to ensure that judicial
review is carried out "independently of government". The
construction which empowers the Court to grant counsel access
for the purpose of arguing the application is the only one
consistent with the purpose, the scheme and the wording of the
Act.
Since the Court has not adopted the "special rules" it was
directed by section 45 to make, resort may be had to the "gap"
rule, Rule 5. The procedure under Rule 1402 for providing
evidence in confidence to counsel in anti-dumping cases may be
adopted by analogy, as may the practice of protective orders in
patent cases. The minimum standard of disclosure is a question
of fact in each case. Where it is the nature of the information
which is at issue, rather than its contents, counsel need not see
the actual record. The Court can require the communication to
counsel of a summary or a general description of the record.
That is what should have been done in this case. In other cases,
the Court can impose conditions of access that vary according
to the nature of sensitivity of the information. Where, for
example, the information is classified "secret", only counsel
holding a corresponding security clearance may be given access.
The Court below erred in making an order for access without
first viewing the documents. The Court can decide that access
should be granted and determine the extent and conditions
thereof only after having examined the record at issue.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1),
4, 13, 19, 30, 35, 41, 45, 46, 47, 48, 49, 50, 52, 53.
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37,
38, 39.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] s. 2(b).
Canadian International Trade Tribunal Act, R.S.C.,
1985 (4th Supp.), c. 47, ss. 32, 43, 44, 45, 46, 47,
48, 49.
Canadian Security Intelligence Service Act, R.S.C.,
1985, c. C-23, ss. 48, 49, 50.
Canadian Transportation Accident Investigation and
Safety Board Act, S.C. 1989, c. 3, ss. 28(6), 30(5).
Federal Court Rules, C.R.C., c. 663, RR. 5, 1402(8) (as
am. by SOR/90-846, s. 23).
Immigration Act, R.S.C., 1985, c. I-2, ss. 29(3) (as am.
by R.S.C., 1985 (1st Supp.), c. 31, s. 99), 40.1 (as
enacted idem (4th Supp.) c. 29, s. 4).
National Defence Act, R.S.C., 1985, c. N-5, s. 236.
Patent Act, R.S.C., 1985, c. P-4, s. 20(4).
Petroleum and Gas Revenue Tax Act, R.S.C., 1985, c.
P-12, s. 25.
Privacy Act, R.S.C., 1985, c. P-21, ss. 3, 8(2)(m)(î), 33,
44, 45, 46, 47, 48, 49, 50, 51, 52.
Special Import Measures Act, R.S.C., 1985, c. S-15, s.
75 (rep. by R.S.C., 1985 (4th Supp.) c. 47, s. 52).
Tax Court of Canada Act, R.S.C., 1985, c. T-2, s. 16 (as
am. by R.S.C., 1985 (1st Supp.), c. 48, s. 1; (4th
Supp.), c. 52, s. 5).
CASES JUDICIALLY CONSIDERED
REVERSED:
Hunter v. Canada (Minister of Consumer and Corporate
Affairs) (1990), 29 C.P.R. (3d) 321; 35 F.T.R. 75
(F.C.T.D.).
CONSIDERED:
Nokes v. Doncaster Amalgamated Collieries Ld., [1940]
A.C. 1014 (H.L.); C.D. v. Minister of National Revenue,
[1991] 2 F.C. 412 (C.A.).
REFERRED TO:
Maislin Industries Limited v. Minister for Industry,
Trade and Commerce, [1984] 1 F.C. 939; (1984), 10
D.L.R. (4th) 417; 8 Admin. L.R. 305; 27 B.L.R. 84
(T.D.); Robertson and Minister of Employment and
Immigration (1987), 42 D.L.R. (4th) 552; 13 F.T.R. 120
(F.C.T.D.); Bland v. Canada (National Capital Comm.
of Canada) (1988), 32 Admin. L.R. 69; 20 F.T.R. 236
(F.C.T.D.); Attorney General of Nova Scotia et al. v.
Maclntyre, [1982] 1 S.C.R. 175; (1985), 49 N.S.R. (2d)
609; 132 D.L.R. (3d) 385; 96 A.P.R. 609; 65 C.C.C. (2d)
129; 26 C.R. (3d) 193; 40 N.R. 181; Warner-Lambert
Co. v. Glaxo Laboratories Ltd., [1975] R.P.C. 354
(C.A.); Reichmann v. Toronto Life Publishing Co.
(1990), 71 O.R. (2d) 719; 44 C.P.C. (2d) 206 (H.C.); In
re K. (Infants), [1963] Ch. 381; In re K. Infants, [1965]
A.C. 201 (H.L.); Rubin v. Canada (Canada Mortgage
and Housing Corp.), [1989] 1 F.C. 265; (1988), 52
D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.);
Canada Packers Inc. v. Canada (Minister of Agricul
ture), [1989] 1 F.C. 47; (1988), 53 D.L.R. (4th) 246; 32
Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 8 (C.A.);
DMR & Associates v. Minister of Supply and Services
(1984), 11 C.P.R. (3d) 87 (F.C.T.D.); Piller Sausages &
Delicatessens Ltd. v. Canada (Minister of Agriculture),
[1988] 1 F.C. 446; (1987), 38 B.L.R. 19; 18 C.P.R. (3d)
356; 14 F.T.R. 118 (T.D.); Air Atonabee Ltd. v. Canada
(Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27
F.T.R. 194 (F.C.T.D.); Burns Meats Ltd. v. Canada
(Minister of Agriculture), T-1140-85, Jerome A,C.J.,
order dated 17/1/86 F.C.T.D., not reported; Paulson v.
The King (1915), 52 S.C.R. 317; 27 D.L.R. 145; 9
W.W.R. 1099; Spooner Oils Ltd. et al. v. The Turner
Valley Gas Conservation Board, [1933] S.C.R. 629;
[1933] 4 D.L.R. 545; Bayshore Shopping Centre Limited
v. Corporation of the Township of Nepean et al., [1972]
S.C.R. 755; (1972), 25 D.L.R. 443; Burnell v. Interna
tional Joint Commission, [1977] 1 F.C. 269; (1976), 71
D.L.R. (3d) 725 (T.D.); Proctor & Gamble Co. et al. v.
Kimberly-Clark of Canada Ltd. (1987), 15 C.I.P.R. 16;
16 C.P.R. (3d) 114; 15 F.T.R. 46 (F.C.T.D.); Proctor &
Gamble Co. v. Kimberly-Clark of Canada Ltd., F.C.A.,
A-158-88, lacobucci C.J., judgment dated 21/2/89, not
reported; Upjohn Inter-American Corporation v. Canada
(Minister of National Health and Welfare and Attorney
General) (1987), 14 C.P.R. (3d) 50; 10 F.T.R. 37
(F.C.T.D.).
AUTHORS CITED
Côté, Pierre-André, Interprétation des lois, 2' éd., Mont-
réal: Editions Yvon Biais Inc., 1990.
Maxwell on The Interpretation of Statutes, 12th ed. by
P. St. J. Langan, London: Sweet & Maxwell Ltd.,
1969.
Schneiderman David, "The Access to Information Act: A
Practical Review" (1986-87), 7 Advocates Q. 474.
COUNSEL:
Barbara A. Mcisaac, Q.C., for the appellant.
Richard D. Dearden for the respondent.
SOLICITORS:
Deputy Attorney of Canada for the appellant.
Gowling, Strathy & Henderson, Ottawa, for
the respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.A. (concurring in the result): Both
parties to this appeal attack an order of the Trial
Division (Reed J.) [(1990), 29 C.P.R. (3d) 321]
allowing in part a motion made by the respondent
in the course of proceedings under section 41 of
the Access to Information Act [R.S.C., 1985, c.
A-1]. By that order, the Court directed that coun
sel for the respondent be given access to certain
records under the control of the appellant for the
sole purpose of enabling them to argue the applica
tion made by the respondent under section 41; the
Court, however, rejected the respondent's request
that Jean-Pierre Kingsley, the author of an affida
vit filed in the section 41 proceedings, be ordered
to answer certain questions that he had refused to
answer during the cross-examination. The appel
lant appeals from the first part of the order while
the respondent cross-appeals from the second part.
In order to understand the issues, it is necessary
to have in mind certain provisions of the Access to
Information Act.
Section 4 gives every person (other than a non-
Canadian who is not a permanent resident) the
right to be given, on request, access to any record
under the control of a government institution.
Sections 13 and following, however, provide for
exceptions to that rule. One of these exceptions is
of interest here; it is found in section 19:
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.
(2) The head of a government institution may disclose any
record requested under this Act that contains personal informa
tion if
(a) the individual to whom it relates consents to the
disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the
Privacy Act.'
Section 6 requires that a request for access to a
record be made in writing. The head of the govern
ment institution concerned must, within 30 days
after the request, indicate in writing whether he
will accede to it and, in case of refusal, specify the
specific provision of the statute on which the refus
al is based. If the person whose request has been
turned down wishes to pursue the matter further,
he may make a complaint to the Information
Commissioner under section 30; if the intervention
of the Commissioner does not give him satisfaction
he may, under section 41, apply to the Trial
Division of the Court "for a review of the matter".
Sections 45 to 50 of the Act relate to that review:
45. An application made under section 41, 42 or 44 shall be
heard and determined in a summary way in accordance with
any special rules made in respect of such applications pursuant
to section 46 of the Federal Court Act.
46. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, in the
' The relevant provisions of the two sections of the Privacy
Act [R.S.C., 1985, c. P-21] referred to in section 19 read as
follows:
3. In this Act,
"personal information" means information about an identifi
able individual that is recorded in any form including,
without restricting the generality of the foregoing,
(b) information relating to ... financial transactions in
which the individual has been involved,
but, for the purposes of ... section 19 of the Access to
Information Act, does not include
(j) information about an individual who is or was an
officer or employee of a government institution that
relates to the position or functions of the individual ... .
8. ...
(2) Subject to any other Act of Parliament, personal infor
mation under the control of a government institution may be
disclosed
(m) for any purpose where, in the opinion of the head of
the institution,
(i) the public interest in disclosure clearly outweighs
any invasion of privacy that could result from the
disclosure ....
course of any proceedings before the Court arising from an
application under section 41, 42 or 44, examine any record to
which this Act applies that is under the control of a government
institution, and no such record may be withheld from the Court
on any grounds.
47. (1) In any proceedings before the Court arising from an
application under section 41, 42 or 44, the Court shall take
every reasonable precaution, including, when appropriate,
receiving representations ex parte and conducting hearings in
camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which
the head of a government institution would be authorized to
refuse to disclose a part of a record requested under this Act;
or
(b) any information as to whether a record exists where the
head of a government institution, in refusing to disclose the
record under this Act, does not indicate whether it exists.
(2) The Court may disclose to the appropriate authority
information relating to the commission of an offence against
any law of Canada or a province on the part of any officer or
employee of a government institution, if in the opinion of the
Court there is evidence thereof.
48. In any proceedings before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a government institution is authorized to refuse
to disclose a record requested under this Act or a part thereof
shall be on the government institution concerned.
49. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of a provision of this Act not referred to in section 50,
the Court shall, if it determines that the head of the institution
is not authorized to refuse to disclose the record or part thereof,
order the head of the institution to disclose the record or part
thereof, subject to such conditions as the Court deems appro
priate, to the person who requested access to the record, or shall
make such other order as the Court deems appropriate.
50. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18
(d), the Court shall, if it determines that the head of the
institution did not have reasonable grounds on which to refuse
to disclose the record or part thereof, order the head of the
institution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who
requested access to the record, or shall make such other order
as the Court deems appropriate.
I now turn to the facts which ultimately gave
rise to this appeal.
On June 13, 1986, the respondent made a
request to the appellant for access to the records
containing the information provided by the Prime
Minister, Cabinet ministers and other senior gov
ernment officials pursuant to the Conflict of Inter
est and Post-Employment Code for Public Office
Holders. That Code is a document which the
Prime Minister tabled in the House of Commons
on September 9, 1985; it requires members of the
Cabinet and other public office holders to provide
to the Assistant Deputy Registrar General infor
mation about their personal financial situation and
their present and past activities. The respondent's
request was immediately rejected on the ground
that the information contained in those records
was personal information, the disclosure of which
was prohibited by subsection 19(1). After having
unsuccessfully made a complaint to the Commis
sioner, the respondent took advantage of section 41
and applied to the Trial Division for a review of
the matter. In answer to that application, the
appellant filed the affidavit of Jean-Pierre Kings-
ley who was then the Assistant Deputy Registrar
General of Canada. In that affidavit, Mr. Kingsley
placed before the Court a copy of the Conflict of
Interest and Post-Employment Code for Public
Office Holders and described the kind of informa
tion provided under the Code. He was cross-exam
ined on that affidavit and, during that cross-
examination, refused to answer questions request
ing him to produce the records in issue, to identify
by name the persons whose records were in issue
and specify the manner in which they had attempt
ed to comply with the Code and, finally, to give
details about the disciplinary measures taken
against those who had failed to comply with the
Code.
The respondent then applied to the Trial Divi
sion for an order directing Mr. Kingsley to answer
those questions and, also, for an order giving his
two counsel access to the records in issue on their
giving an undertaking to the Court not to disclose
their contents to anyone. That application was
supported by an affidavit asserting that respond
ent's counsel required "access to the records in
issue to properly prepare for the hearing of [the
section 41] Application in respect of the argument
that the information should be disclosed pursuant
to section 19(2)(c) of the Access to Information
Act and section 8(2)(m)(i) of the Privacy Act in
that the public interest in disclosure clearly out-
weighs any invasion of privacy that could result
from the disclosure."
As I have already said, Reed J. granted only the
second part of that motion; she directed that the
respondent's counsel be given access to the
"records in issue" but did not order Mr. Kingsley
to answer the questions. With respect to the
request that counsel be given access to the records,
she first said [at page 324]:
There is no doubt that personal information has been dis
closed to counsel in the past, on a confidential basis, to allow
them to properly argue their clients' request for disclosure
under the terms of the Access Act: see Re Maislin Industries
Ltd. and Minister for Industry, Trade and Commerce
(1984), 80 C.P.R. (2d) 253, 10 D.L.R. (4th) 417, [1984] 1
F.C. 939 (T.D.); Re Robertson and Minister of Employment &
Immigration (1987), 42 D.L.R. (4th) 552, 13 F.T.R. 120
(T.D.); Bland and Canada (National Capital Commission)
(1988), 32 Admin. L.R. 69, 20 F.T.R. 236, 11 A.C.W.S. (3d) 2
(T.D.). That the particular counsel seeking access in this case
can be relied upon to respect the confidentiality of the docu
ments if they are given access is also not disputed.
After quoting from the Maislin [Maislin Indus
tries Limited v. Minister for Industry, Trade and
Commerce, [1984] 1 F.C. 939 (T.D.)]; Robertson
[Robertson and Minister of Employment and
Immigration (1987), 42 D.L.R. (4th) 552
(F.C.T.D.)]; and Bland [Bland v. Canada (Na-
tional Capital Comm. of Canada) (1988), 32
Admin. L.R. 69 (F.C.T.D.)] decisions, she con
cluded [at page 327]:
In the light of this jurisprudence I think there are a number
of factors which the court takes into account in deciding
whether counsel should be given access, for the purposes of
argument only, to the documents which are the subject of an
access refusal review. Some of these are: the extent to which
counsel will be impeded in making argument if the documents
are not disclosed to him; the nature or sensitivity of information
contained in the documents; the extent to which the proceed
ings before the court will operate more smoothly and fairly if
access is granted; the type of assurances which counsel can give
that the documents will not be disclosed inadvertently (e.g., in
this case counsel referred to his security cleared status and the
special vault facilities in his office).
It is my view that the facts in this case fall within the type of
situations in which access to documents has been given to
counsel for the purposes of argument in the past. When the
criteria set out above are applied to the facts of this case, they
lead to the conclusion that access should be granted.
Turning to the questions that Mr. Kingsley has
refused to answer during cross-examination, Reed
J. did not order that the questions relating to the
records in issue and their contents be answered
because she considered that counsel, after having
had access to those records, would know the
answers to these questions. As to the other ques
tions, relating to the persons who were disciplined
for non-compliance with the Code, she was not
convinced that they were relevant and, according
ly, was not prepared, to order that they be
answered.
The first question to be resolved on this appeal is
whether the Trial Division may, when it is seized
of a section 41 application, order the head of the
federal institution concerned to give to the appli
cant's counsel confidential access to the records in
issue for the sole purpose of enabling him (or
them) to prepare argument in support of the
application. That question was not discussed in the
Court below. Both parties as well as the judge
assumed the correctness of the decisions made in
Maislin, Robertson and Bland. The oral argument
of the appeal proceeded on the same basis; after
the hearing, however, both parties were asked to
submit written argument on that issue. In her
submission, counsel for the appellant did not really
take a firm position; respondent's counsel, how
ever, argued that the power of the Court to make
that kind of an order flows from its inherent
jurisdiction to control its own process and records
as well as from its rules and practice; he also
submitted that the "interpretation of the structure
and wording of the Access to Information Act
allows for such a practice."
There is no doubt that, as a rule, the Court may,
in order to ensure a fair determination of the
matter before it, order a party to produce relevant
evidence in its possession for inspection by the
other parties. It is equally clear, however, that this
power may not be used when its exercise would
imply a determination of the very issue before the
Court. 2 It cannot be used, either, when the law
forbids it. That is the case here.
Section 47 of the Access to Information Act
imposes on the Court that is seized of a section 41
application the duty to "take every reasonable
precaution ... to avoid the disclosure by the Court
or any person of any information ... on the basis
of which the head of a government institution
would be authorized to refuse to disclose a part of
a record requested under this Act". It necessarily
follows that the Court is prohibited from ordering
the disclosure of information contained in a record
without having first determined that the informa
tion in question must be disclosed. As the section
does not distinguish between disclosure to an
applicant, his counsel and the public, this implied
prohibition applies to any disclosure including con
fidential disclosure to an applicant or his counsel.
The Court has no discretion to order or authorize
disclosure if it deems it necessary or useful; it has
the absolute duty to take the necessary precautions
to avoid the disclosure. The only discretion that
section 47 gives to the Court relates to the choice
of the means to avoid the disclosure. It is easy to
understand why Parliament has given that discre
tion to the Court rather than impose the obligation
to proceed ex parte or in camera in all cases.
Indeed, very often, these measures will not be
necessary to avoid the disclosure. In many cases,
once the Court has examined the records, it will be
possible to argue the section 41 application with
out disclosing the information contained in those
records. In other instances (for example, when the
application for a review is made by the Informa
tion Commissioner), all parties to the proceedings
may already have had access to the records so that
the imposition of an ex parte hearing would be a
useless precaution.
2 For instance, a court that has to rule on a claim of privilege
with respect to the production of a document may not order
that the document be produced in order to facilitate the
argument on the question of privilege.
I am therefore of opinion that the Trial Division
should not have ordered that the applicant's coun
sel be given access to the records in issue.
I now turn to the respondent's cross-appeal
against the refusal of the Court below to order Mr.
Kingsley to answer the three groups of questions
that he had failed to answer during his
cross-examination.
It is clear from what I have already said that the
Court could not, without violating section 47,
order that the first two groups of questions be
answered since they requested the production of
the records in issue and information contained in
those records.
As to the last group of questions, it related to
the disciplinary measures taken against those who
had failed to comply with the Code. Those ques
tions were completely irrelevant since the only
issue before the Court was whether the Access to
Information Act authorized the appellant to refuse
to disclose the records requested by the respond
ent.
I would allow the appeal, dismiss the cross-
appeal and substitute for the order made by the
Trial Division an order dismissing the respondent's
application. Costs in the Trial Division and in this
Court shall be in the case.
* * *
The following are the reasons for judgment
rendered in English by
DÉCARY J.A.: I agree with my colleague Pratte
that the appeal should be allowed, but I do so for
substantially different reasons.
In brief, I hold the view that section 47 of the
Access to Information Act' empowers the Court to
grant access to counsel for the purpose of arguing
the application for disclosure on the undertaking
that he/she will not disclose the information at
issue to anyone including his/her client, but that in
3 R.S.C., 1985, c. A-1.
the instant case the circumstances are not appro
priate for the issuance of such a confidential order.
The facts have been recited by my colleague and
I need not repeat them. It will be useful, however,
to reproduce some of the sections of the Act to
which I intend to refer. They are:
2. (1) The purpose of this Act is to extend the present laws of
Canada to provide a right of access to information in records
under the control of a government institution in accordance
with the principles that government information should be
available to the public, that necessary exceptions to the right of
access should be limited and specific and that decisions on the
disclosure of government information should be reviewed
independently of government.
35. (1) Every investigation of a complaint under this Act by
the Information Commissioner shall be conducted in private.
(2) In the course of an investigation of a complaint under
this Act by the Information Commissioner, a reasonable oppor
tunity to make representations shall be given to
(a) the person who made the complaint,
(b) the head of the government institution concerned, and
(c) where the Information Commissioner intends to recom
mend under subsection 37(1) that a record or a part thereof
be disclosed that contains or that the Information Commis
sioner has reason to believe might contain
(i) trade secrets of a third party,
(ii) information described in paragraph 20(1)(b) that was
supplied by a third party, or
(iii) information the disclosure of which the Information
Commissioner could reasonably foresee might effect a
result described in paragraph 20(1)(c) or (d) in respect of
a third party,
the third party, if the third party can reasonably be located,
but no one is entitled as of right to be present during, to have
access to or to comment on representations made to the Com
missioner by any other person.
45. An application made under section 41, 42 or 44 shall be
heard and determined in a summary way in accordance with
any special rules made in respect of such applications pursuant
to section 46 of the Federal Court Act.
46. Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, the Court may, in the
course of any proceedings before the Court arising from an
application under section 41, 42 or 44, examine any record to
which this Act applies that is under the control of a government
institution, and no such record may be withheld from the Court
on any grounds.
47. (1) In any proceedings before the Court arising from an
application under section 41, 42 or 44, the Court shall take
every reasonable precaution, including, when appropriate,
receiving representations ex parte and conducting hearings in
camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which
the head of a government institution would be authorized to
refuse to disclose a part of a record requested under this Act;
or
(b) any information as to whether a record exists where the
head of a government institution, in refusing to disclose the
record under this Act, does not indicate whether it exists.
(2) The Court may disclose to the appropriate authority
information relating to the commission of an offence against
any law of Canada or a province on the part of any officer or
employee of a government institution, if in the opinion of the
Court there is evidence thereof.
48. In any proceedings before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a government institution is authorized to refuse
to disclose a record requested under this Act or a part thereof
shall be on the government institution concerned.
52. (1) Any application under section 41 or 42 relating to a
record or a part of a record that the head of a government
institution has refused to disclose by reason of paragraph
13(1)(a) or (b) or section 15 shall be heard and determined by
the Associate Chief Justice of the Federal Court or by such
other judge of the Court as the Associate Chief Justice may
designate to hear such applications.
(2) An application referred to in subsection (1) or an appeal
brought in respect of such application shall
(a) be heard in camera; and
(b) on the request of the head of the government institution
concerned, be heard and determined in the National Capital
Region described in the schedule to the National Capital
Act.
(3) During the hearing of an application referred to in
subsection (1) or an appeal brought in respect of such applica
tion, the head of the government institution concerned shall, on
the request of the head of the institution, be given the opportu
nity to make representations ex parte.
53....
(2) Where the Court is of the opinion that an application for
review under section 41 or 42 has raised an important new
principle in relation to this Act, the Court shall order that costs
be awarded to the applicant even if the applicant has not been
successful in the result.
I wish to state at the outset that section 47,
when read together with sections 35 and 52, con
stitutes a most unsatisfactory piece of legislation
as regards the powers and duties of the Court in
proceedings dealing with access to information.
What makes matters even more complicated is the
fact that Parliament has used slightly or substan-
tially different language in other Acts 4 to deal
with somehow comparable situations and the fact
that the Court has yet, notwithstanding the
requirement of section 46, to make special rules to
deal with this sort of proceedings.'
In interpreting section 47 of the Access to
Information Act, reference should be made to the
principles developed at common law with respect
to the protection of confidential information, to the
practice adopted by the courts, to the various
statutory mechanisms established by Parliament
and to the advent of the Charter [Canadian
Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada
4 Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37 to 39;
Canadian Transportation Accident Investigation and Safety
Board Act, S.C. 1989, c. 3, ss. 28(6) and 30(5); Canadian
International Trade Tribunal Act, R.S.C., 1985 (4th Supp.), c.
47, ss. 43 to 49; Canadian Security Intelligence Service Act,
R.S.C., 1985, c. C-23, ss. 48 to 50; Immigration Act, R.S.C.,
1985, c. I-2, ss. 29(3) (as am. by R.S.C., 1985 (1st Supp.), c.
31, s. 99) and 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c.
29, s. 4); National Defence Act, R.S.C., 1985, c. N-5, s. 236;
Patent Act, R.S.C., 1985, c. P-4, s. 20(4); Petroleum and Gas
Revenue Tax Act, R.S.C., 1985, c. P-12, s. 25; Privacy Act,
R.S.C., 1985, c. P-21, ss. 33, 44 to 52; Special Import Meas
ures Act, R.S.C., 1985, c. S-15, s. 75 (rep. by R.S.C., 1985 (4th
Supp.), c. 47, s. 52); Tax Court of Canada Act, R.S.C., 1985,
c. T-2, s. 16 (as am. by R.S.C., 1985 (1st Supp.), c. 48, s. 1.
5 Section 47 is poorly phrased. While there appears to be
general agreement that it directs the Court to take precautions
against the disclosure of the very record at issue as well as
against the disclosure of any exempted information (see David
Schneiderman, "The Access to Information Act: A Practical
Review" (1986-87), 7 Advocates Q. 474, at p. 488), I must
admit that this comprehensive interpretation has given me some
concern. A close reading of subsection 47(1) could lead one to
conclude that Parliament had in mind not the "record"
("documents" in the French text) at issue, the disclosure of
which has been actually refused, but "any information or other
material" ("des renseignements" in the French text) that might
accidentally show up during the proceedings and with respect
to which the head of a government institution, if properly
informed of the risk of its disclosure, "would be authorized to
refuse to disclose". Should that be the proper interpretation,
section 47 would not, of course, stand as a statutory prohibition
to grant counsel conditional access to the record at issue. I need
not, however, pursue this matter further because, even in
following the generally adopted comprehensive interpretation, I
am of the view that section 47 does not direct the Court to
refuse counsel such access.
Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44]]. It is, in my view, in that
larger context only that the true meaning of the
section can be sought.
Confidentiality at common law
It can be safely said that three fundamental
premises on which our judicial system is based, are
(1) that trials take place in open court, (2) that the
procedure followed is an adversarial one, and (3)
that rules of natural justice apply, amongst which
is the rule that each party is entitled to see every
thing which is relevant to the Court's decision.
It is a combination of these three principles
which is at the source of the rule that hearing
should not be conducted in camera, even less in
private, that representations should not be made
ex parte and that parties and their counsel should
not be denied access to the material that is rele
vant to the Court's decision.
That rule, as most rules, is not an absolute one.
The courts, albeit reluctantly, have softened it "in
exceptional cases, where the administration of jus
tice would be rendered impracticable by the pres
ence of the public" 6 and, in some cases, one may
add, by the presence of all the parties. One of
these exceptional cases, most certainly, is proceed
ings where the confidentiality of a document is
precisely what is at stake. To allow the public and
the parties to see the document before the question
of its disclosure is decided might well render the
whole process utterly useless and frustrate the end
result of the proceedings.'
Practice with respect to the protection of
confidentiality
In proceedings where there is a need to protect
the integrity of confidential information, one of the
means developed by the courts to preserve to the
greatest possible extent the openness and the
adversarial nature of the judicial system and to
enable the parties to properly argue their case, is
to provide counsel for the parties with access to the
6 Attorney General of Nova Scotia et al. v. Maclntyre,
[1982] 1 S.C.R. 175, at p. 188, Dickson J. [as he then was].
7 For a most recent analysis of the principle of openness of
judicial proceedings, see C.D. v. Minister of National Revenue,
[1991] 2 F.C. 412 (C.A.).
information subject to various conditions including
the provision by counsel of undertakings to main
tain the confidentiality of the information even
with respect to their clients. 8
As noted by Anderson J. in Reichmann, most of
the authorities deal with disputes over patents or
other secret processes, in which the litigants were
direct commercial competitors, but in a case where
the confidentiality of a government document was
at stake, it has been held that it "is an excellent
and common sense practice" to disclose to the
parties' legal advisors the contents of the confiden
tial reports provided they are not disclosed to the
parties personally. 9
I might add that while this practice has general
ly been justified in terms of natural justice and
advantage to counsel, it has also proved most
useful to judges. Issues in which confidential docu
ments are at risk tend to be rather complex, either
technically, as in commercial matters, or legally,
as in public interest matters, and it is not always
fair to the Court to force it to make important
decisions when having heard one side of the argu
ment only.
Apart from the practice developed by the courts,
Parliament has suggested or imposed various tech
niques to protect confidential information. The
techniques extend to judicial as well as to non-
judicial proceedings. The more sensitive the issue
is, the more stringent the requirements are. Here is
a non-exhaustive list of techniques developed so
far, some of which are occasionally combined.
— No examination of the confidential information and no
hearing by the Court and disclosure refused automatically:
8 See Warner-Lambert Co. v. Glaxo Laboratories Ltd.,
[1975] R.P.C. 354 (C.A.), Buckley L.J., regarding confidential
information in patent cases; Reichmann v. Toronto Life Pub
lishing Co. (1990), 71 O.R. (2d) 719 (H.C.), regarding confi
dential information in a libel action.
9 In re K. (Infants), [1963] Ch. 381; this point affirmed In re
K. Infants, [1965] A.C. 201 (H.L.), at p. 221, Lord Evershed.
— Canada Evidence Act, s. 39(1) (confidence of the
Privy Council)
— Hearings shall be conducted in private ("en secret"):
— Canadian Security Intelligence Service Act, s. 48(1)
(investigation by Review Committee)
— Access to Information Act, s. 35(1) (investigation by
Information Commissioner)
— No right to be present during, to have access to or to
comment on representations made by another party:
— Canadian Security Intelligence Service Act, s. 48(2)
(investigation by Review Committee)
— Access to Information Act, s. 35(2) (investigation by
Information Commissioner)
— Immigration Act, s. 40.1(4)(a) (inquiry by immigra
tion officer)
— Hearing shall be conducted by Chief Justice, Associate
Chief Justice or judge designated:
— Canada Evidence Act, s. 38(1) (international rela
tions, national defence, security)
— Access to Information Act, s. 52(1) (international
affairs, defence, subversive activities)
— Immigration Act, s. 40.1(4) (security or criminal
intelligence reports)
— Hearings shall be conducted in camera, with the opportu
nity being given to a party to make representations ex
parte:
— Canada Evidence Act, s. 38(5), (6) (disclosure of
government information)
— Access to Information Act, s. 52(2), (3) (international
affairs, defence, subversive activities)
— Summary of information to be given:,
— Immigration Act, s. 40.1(4)
— On request for production of statement alleged to be
privileged, Court shall examine statement in camera and,
if it concludes that the public interest in the proper
administration of justice outweighs in importance the
privilege attached to the statement, the Court shall order
its production and discovery, subject to such restrictions or
conditions as the Court deems appropriate:
— Canadian Transportation Accident Investigation and
Safety Board Act, s. 30(5)
— Hearings shall be held in camera on request by party:
— Patent Act, s. 20(4)
— Petroleum and Gas Revenue Tax Act, s. 25
— Hearings shall be conducted in camera, unless it is estab
lished that the conduct of the inquiry in public would not
impede the inquiry and would not adversely affect the
applicant:
— Immigration Act, s. 29(3)
— Hearings may be conducted in camera:
— Canadian International Trade Tribunal Act, s. 32
— National Defence Act, s. 236(2)
— Special Import Measures Act, s. 75(2)
— Tax Court of Canada Act, s. 16
— Confidential information may be disclosed to counsel only,
subject to counsel providing an undertaking of confiden
tiality:
— Canadian International Trade Tribunal Act, s. 45(3)
— Confidential information shall not knowingly be disclosed
in any manner that is calculated or likely to make it
available for the use of business competitor.
— Special Import Measures Act, s. 75(3)
It is obvious, when going through these statutes,
that Parliament has sought to balance the need of
the state and of private parties to protect the
integrity of confidential information with the pos
sibility for the public and the opposing parties to
challenge the alleged confidentiality. When Parlia
ment felt that the need of the state was such as to
exclude any form of challenge or as to restrict
severely any access to the confidential information
at issue, it did not hesitate to do so. When Parlia
ment decided to impose a particular "technique",
it did so. When Parliament decided that courts
could choose the most appropriate "technique", it
did so. When Parliament, in a single statute, has
imposed various "techniques" to deal with differ
ent situations, it presumably wanted a particular
technique to be applied to a particular situation.
Section 47 of the Access to Information Act
Section 47, whose ambiguity is the only certain
thing about it, is to be interpreted in the context of
the entire Act, i.e. in the context of an Act whose
purpose, under section 2, is "to provide a right of
access to information in records under the control
of a government institution in accordance with the
principles that government information should be
available to the public, that necessary exceptions
to the right of access should be limited and specific
and that decisions on the disclosure of government
information should be reviewed independently of
government", in the context of an Act which
expressly and conclusively discards the adversarial
nature of proceedings when it wants to do so
(sections 35 and 52), in the context of an Act
which imposes on the government institution the
burden of establishing that the refusal to disclose
is authorized (section 48) and in the context of ar.
Act which specifically and most unusually provides
that unsuccessful applicants will be entitled tc
their costs when their application "has raised an
important new principle".
Any ambiguity in section 47 should therefore be
resolved in such a way as to encourage adversarial
proceedings, as to favour the party seeking disclo
sure, as to give a real meaning to the burden of
proof imposed on the government institution, and
as to best ensure that the judicial review is really
made "independently of government". I have great
difficulty in giving any weight to that burden of
proof and to that independent review if, in all
judicial proceedings commenced under section 41,
the Court is given no discretion whatsoever to
grant counsel, in appropriate circumstances, some
form of access to the record at issue in order to
enable him/her to argue the merit of the applica
tion. The Act might well prove to be unworkable if
the Court is systematically at the mercy of those
from whom it is declared to be independent and on
whom the burden of proof rests.
Further, as the Act is intended to increase the
visibility and independence of the judicial review,
any interpretation of section 47 that would result
in the incorporation into that section of the covert-
ness identified with the investigation by the Infor
mation Commissioner (section 35) or identified
with proceedings dealing with international affairs,
defence or subversive activities (section 52) would
do violence to the express purpose of the Act.
To see in section 47 an absolute and universally
applicable rule of non-access to counsel, is to
forget that the Act contemplates various situa
tions, including those referred to in section 52:
there are cases where the head of a government
institution "may refuse to disclose", others where
he "shall refuse to disclose". There are, in the Act
itself, different degrees of confidentiality that
invite flexibility rather than rigidity.
Had Parliament intended to prevent any form of
access by counsel during the judicial review, it
would have been easy to say so in very few words.
But why refer to "reasonable" precaution, why say
"including", why add "when appropriate", why
give two examples, i.e. ex parte representations
and hearings in camera, if the purpose is to impose
upon the Court the absolute duty, in all proceed
ings, whatever the record at issue, whatever the
party, whatever the counsel, to ensure that the
information will not be communicated to anyone?
If Parliament had intended to give the Court no
choice but to close the door on any form of com
munication pending the proceedings, wouldn't it
have used in section 47 a language similar to that
used in sections 35 and 52, or to that used in the
Canadian Security Intelligence Service Act or in
the Immigration Act?
Parliament did not want to be as specific when it
came to section 47 as it was when it came to
sections 35 and 52. Parliament refrained from
putting aside totally the openness of the proceed
ings and the contradictory nature of the proceed
ings. That reluctance to put aside these fundamen
tal principles commands a narrower construction
of the section. As stated by Viscount Simon in
Nokes v. Doncaster Amalgamated Collieries,
Ld.: 10
Judges are not called upon to apply their opinions of sound
policy so as to modify the plain meaning of statutory words, but
where, in construing general words the meaning of which is not
entirely plain there are adequate reasons for doubting whether
the Legislature could have been intending so wide an interpre
tation as would disregard fundamental principles, then we may
be justified in adopting a narrower construction.
In the instant case, that narrower construction is
the only one consistent with the purpose, the
scheme and the wording of the Act."
There is an additional reason which leads me to
conclude that this is the proper interpretation to be
given. In these proceedings as well as in other
proceedings where the issue of disclosure arose, 12 it
is conceded by the appellant that the Minister
° [1940] A.C. 1014 (H.L.), at p. 1022.
11 See Rubin v. Canada (Canada Mortgage and Housing
Corp.), [1989] 1 F.C. 265 (C.A.), at pp. 271-278, Heald J.
12 Maislin Industries Limited v. Minister for Industry, Trade
and Commerce, [1984] 1 F.C. 939 (T.D.); Robertson and
Minister of Employment and Immigration (1987), 42 D.L.R.
(4th) 552 (F.C.T.D.); Canada Packers Inc. v. Canada (Minis-
ter of Agriculture), [1989] 1 F.C. 47 (C.A.); Bland v. Canada
(National Capital Comm. of Canada) (1988), 32 Admin.
(Continued on next page)
involved, represented by the Attorney General of
Canada, had agreed to or had not opposed disclo
sure for the purpose of the proceedings. While it is
common ground that courts should not look at
administrative practice that goes against the intent
or the requirements of a statute in order to inter
pret it, I am prepared to refer to an administrative
practice, in an ancillary way, when such practice is
that of such a high authority as that of the Attor
ney General of Canada, when it has been estab
lished in legal proceedings in which the Attorney
General has actively participated, when it is fully
consistent with the purpose, the scheme and the
wording of the Act and when it confirms an inter
pretation which an ambiguous provision may rea
sonably bear. 13
The impact of the Charter
In C.D. v. Minister of National Revenue 14 this
Court had the opportunity, recently, to examine
the impact of the Charter on the practice and
statutory provisions permitting hearings in
camera. It was there stated that:
... with the advent of the Charter and more specifically with
the recognition in its paragraph 2(b) of the freedom of the
press, openness of the courts became an even better recognized
and protected principle than it was at common law. As Cory J.
stated in Edmonton Journal v. Alberta (A.G.):
It seems that the rights enshrined in s. 2(b) should therefore
only be restricted in the clearest of circumstances.
(Continued from previous page)
L.R. 69 (F.C.T.D.). See, also, DMR & Associates v. Minister
of Supply and Services (1984), 11 C.P.R. (3d) 87 (F.C.T.D.),
at p. 88; Piller Sausages & Delicatessens Ltd. v. Canada
(Minister of Agriculture), [1988] 1 F.C. 446 (T.D.), at p. 457;
Air Atonabee Ltd. v. Canada (Minister of Transport) (1989),
27 C.P.R. (3d) 180 (F.C.T.D.); Burns Meats Ltd. v. Canada
(Minister of Agriculture) F.C.T.D., T-1140-85, Jerome A.C.J.,
order dated 17/1/86, not reported.
"See Paulson v. The King (1915), 52 S.C.R. 317, at p. 336,
Duff J.; Spooner Oils Ltd. et al. v. The Turner Valley Gas
Conservation Board, [1933] S.C.R. 629, at p. 642, Duff c. J.;
Bayshore Shopping Centre Limited, v. Corporation of the
Township of Nepean et al., [1972] S.C.R. 755, at p. 167,
Spence J.; Maxwell on The Interpretation of Statutes, 12th ed.
(London: Sweet & Maxwell, 1969) at p. 264; P.A. Côté,
Interprétation des lois, 2nd ed. (Montréal: Yvon Blais, 1990)
at pp. 521 ss.
14 Supra, note 7.
Therefore, a statutory provision permitting in camera proceed
ings will only be constitutionally valid "in the clearest of
circumstances", which may well be, to use the words of Dickson
J. in Maclntyre, "where there is present the need to protect
social values of superordinate importance." In that sense I
would say that the Charter has reinstated the principle of
openness in its original dimension, if that principle had at all
been diluted through statutory exceptions.
While I have no doubt that Parliament may opt
for some form of covertness in cases dealing with
confidential information and that its choice of
technique is not for the courts to question, absent a
constitutional attack, yet wherever that choice has
been expressed in ambiguous words, courts should
not hesitate to "read down" the limitations
imposed and to favour the interpretation that least
restricts the openness of the proceedings.
Confidential orders in the Federal Court
As I hold the view that section 47 does not
direct the Court to deny access to counsel, condi
tional access to counsel becomes one of the "rea-
sonable precautions" the Court might take to
avoid disclosure to the public. There being statu
tory authority for the Court so to do, I need not
rely, as counsel for the respondent suggested we
should, on the Court's alleged inherent jurisdiction
to control its own process 15 and to enforce under
takings given to the Court 16 or, more generally, on
an alleged inherent jurisdiction or implied duty to
secure that justice is done.
15 Burnell v. International Joint Commission, [1977] 1 F.C.
269 (T.D.) at pp. 273-274, Thurlow A.C.J.
16 In re K. (Infants); supra, note 9 at p. 397. (Counsel for the
respondent also referred to the Court's inherent jurisdiction in
its own records, which gives the Court "a supervisory and
protecting power over its own records". Attorney General of
Nova Scotia et al. v. Maclntyre, [1982] 1 S.C.R. 175, at p.
185, Dickson J. It is true that the Federal Court is a court of
record (section 3 of the Federal Court Act [R.S.C., 1985, c.
F-7], but that question does not arise here because the record at
issue has not been made part of the records of the Court, the
Motions Judge not having requested access to it. Even if she
had, it is unclear whether the record at issue would have
automatically become part of the records of the Court. Disclo
sure of the record at issue to counsel would not necessarily
make that record part of the records of the Court.)
Things would have been made easier for practi
tioners had the Court adopted the "special rules"
it was directed to make by section 45 of the Act.
Should there be a need to rely on a specific rule of
the Federal Court Rules [C.R.C., c. 663] even
when the statutory authority to make confidential
orders is determined, I would rely on Rule 5, the
so-called "gap" rule, and adopt by analogy the
practice dictated by Rule 1402(8) [as am. by
SOR/90-846, s. 23] " with respect to applications
made pursuant to the Special Import Measures
Act and the Canadian International Trade Tri
bunal Act, the practice of protective orders devel
oped in patent cases' 8 and the practice adopted
with respect to cross-examination upon an
affidavit. 19
Access to counsel in appropriate circumstances
While Parliament did not, in my view, go as far
as denying systematically access to counsel in pro-
"Rule l402....
(8) Notwithstanding the other provisions of this rule,
having regard to section 29(3) of the Anti-Dumping Act and
to section 4(10) of the Tariff Board Act, when copies of the
material for a section 28 application in respect of a decision
or order under one of those statutes are prepared under this
rule,
(a) copies of the material comprising the transcript of any in
camera hearing and all confidential exhibits shall be bound
separately from all other material and clearly marked
confidential;
(b) subject to any contrary direction from the Court, no more
than one copy of such confidential material shall be sent to
any interested party and such copy shall only be given to one
counsel for such party on his providing an undertaking in
writing to the Court
(i) that he will keep such copy confidential (except as
regards himself and counsel associated with him) except in
the course of argument under direction of the Court, and
(ii) that he will deliver such copy to the Anti-dumping
Tribunal or to the Tariff Board, as the case may be, when
it is no longer required for the purposes of the section 28
application; and
(c) subject to any contrary direction of the Court, such
confidential material shall be withheld from the public.
18 See Procter & Gamble Co. et al. v. Kimberly-Clark of
Canada Ltd. (1987), 15 C.I.P.R. 16 (F.C.T.D.); same parties,
F.C.A., A-158-88, lacobucci C.J., judgment dated 21/ 2 / 8 9, not
reported.
19 Upjohn Inter-American Corporation v. Canada (Minister
of National Health and Welfare and Attorney General) (1987),
14 C.P.R. (3d) 50 (F.C.T.D.), at p. 55.
ceedings commenced under the Access to Infor
mation Act, it did not either go as far as granting
systematically access to counsel. In identifying
amongst those reasonable precautions which might
be taken by the Court that of "receiving represen
tations ex parte", Parliament must have intended
that counsel be denied access in a given case.
There will be cases, for example, where the
application for disclosure is prima facie so frivo
lous or so extravagant or so tantamount to an
endless fishing expedition, that the Court will in a
position to dismiss it summarily, without even
having seen the information at issue and, of
course, without giving any access to counsel. There
will be cases dealing with international affairs,
defence and subversive activities where the head of
the department will take advantage of the provi
sions of section 52 and request that representations
be received ex parte.
In most cases, however, the Court should tend to
give counsel, if not access, at least enough relevant
information to enable him/her to argue the
application. As suggested by Schneiderman, 20 "[a]
minimum standard of disclosure ought to be
instituted by the Federal Court of Canada." The
present case is a good illustration of that "mini-
mum standard of disclosure." As noted by my
colleague, the appellant has provided the Court
and the respondent with a copy of the Conflict of
Interest and Post-Employment Code for Public
Office Holders and described rather extensively
the kind of information provided under the Code.
In a case such as this one, where it is the nature of
the information collected rather than its specific
content which is at issue in the main proceeding to
have the contested documents disclosed, counsel
need not see the actual information at issue in
order to prepare adequately for the application. I
am therefore of the view that the Motions Judge
20 Supra, note 5, at p. 489.
erred in granting access to counsel and that the
appeal should be allowed.
What constitutes the "minimum standard of
disclosure" will be a question of fact in each case.
The Court has the power to control access to
counsel, the extent of that access and the condi
tions of that access. It can refuse access to the
actual information and be satisfied, as it should
have in this case, with the communication to coun
sel of a summary or a general description of the
actual information. It can grant counsel access to
the actual information, in whole or in part. It can
impose conditions of access that vary according to
the nature or sensitivity of the information, rang
ing from allowing counsel to examine the docu
ments in his/her office and keep them in a safe, to
allowing counsel to examine the documents under
surveillance in the Court House. In cases where
access is given to the actual information at issue,
counsel would be expected to provide an undertak
ing that he/she will not disclose it to his/her client.
Where the information at issue is of the "secret"
type, only counsel with security cleared status
would be entitled to examine it. In brief, there is
no magic formula. The objective in each case is to
protect the confidentiality of the information while
allowing an intelligent debate on the question of its
disclosure.
There is a last point I wish to make. In the case
at bar, Reed J. granted access to counsel and set
out the conditions of access without having first
examined herself the documents at issue. This, in
my view, is a serious flaw. The Court cannot be
satisfied that access can be granted to counsel nor
can it determine the extent and conditions of
access if it has not previously examined the docu
ments. Consent by the Crown does not relieve the
Court from its duty to protect confidentiality and
the Court cannot be said to have judicially taken
"every reasonable precaution to avoid disclosure"
if it blindly granted counsel access to all the
information.
With respect to the cross-appeal, I am of the
view that answers to the three groups of questions
that were not answered during the cross-examina
tion of Mr. Kingsley are either unnecessary or
irrelevant with respect to the main proceeding.
The appeal should be allowed and the cross-
appeal should be dismissed.
MAHONEY J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.