Date: 19980427
Docket: T-146-98
BETWEEN:
OCCAM MARINE TECHNOLOGIES LIMITED
Applicant
- and -
THE NATIONAL RESEARCH COUNCIL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant Occam Marine Technologies Limited seeks an Order for directions with respect to the accessibility of the applicant to a Supplemental Confidential Affidavit of Huguette Brunet, the Access to Information and Privacy Co-ordinator for the respondent National Research Council ("N.R.C."), received in a sealed envelope by the Registry of the Court and filed on March 9, 1998.
[2] That Affidavit is in addition to a public Affidavit of Ms. Brunet, also filed on March 9, 1998, on behalf of the respondent N.R.C. in reply to the applicant's Originating Notice of Motion filed January 29, 1998, applying for review, pursuant to s.41 of the Access to Information Act, R.S.C. 1985, c. A-1, of the decision of the Minister of Industry Canada not to release to the applicant the full text of the minutes of the IRAP-M Committee Meeting No. 78 held on June 26, 1991.
[3] This application for direction was heard in Halifax on April 6, 1998, when Dan R. Pace, Director of the applicant corporation represented the applicant, as he has been authorized to do by Order of Madam Justice Reed, dated February 10, 1998. By that Order, directions were also set out for the arrangement, including filing dates, for preparations leading to hearing of the Applicant's application for judicial review.
[4] Those directions included provision for filing of "any confidential affidavit or other material alleged to contain confidential information filed by the respondent" to be identified and filed in a sealed envelope that is to be kept separate and apart from the public Court files of this application until otherwise ordered by the Court. After those directions issued, the respondent did file a confidential affidavit in a sealed envelope.
[5] This motion is for directions, concerned to have access for the applicant to the sealed supplementary affidavit at this stage in this proceeding or for that affidavit to be struck from the record. In the applicant's Notice of Motion a number of questions are set out, and additional questions are set out in the affidavit of Dan R. Pace in support of the motion. The questions concern the admissibility as evidence in this proceeding of the sealed Confidential Affidavit, whether "correct procedures" have been followed in withholding the sealed affidavit from the applicant, whether the Order of Madam Justice Reed of February 10, 1998 has been followed by the respondent, whether in the "interests of justice" the information in the sealed affidavit should be made available to the applicant, or alternatively struck from the record, at this stage. The applicant's concern is said to be whether there is information in the sealed Confidential Affidavit to which it should be entitled to have access for purposes of argument in its application for judicial review, or information reflecting negatively upon the applicant corporation to which it should have opportunity to respond. The applicant also seeks direction from the Court to ensure, under the Court's protection, preservation of all copies of the records to which the applicant seeks access, pending determination of the application of judicial review.
[6] The applicant's issues, for the most part, concern matters for which determination will only be made when the application for review is heard, or as a consequence of the decision following that hearing.
[7] Following the hearing of the applicant's motion, I opened the sealed envelope, reviewed the Confidential Affidavit of Ms. Brunet, and again sealed it in its envelope to be retained on file as directed by the Order of February 10, 1998. I am satisfied that:
| 1) the Confidential Affidavit was filed in a sealed envelope in accord with the Order of February 10, 1998; |
| 2) the Confidential Affidavit, which refers to the information not disclosed to the applicant that is the subject of the decision of concern in the applicant's Originating Notice of Motion, should not, at this stage, be made available or accessible to the applicant and should not be struck from the record; |
| 3) the Court should make no order to require that all copies of the document to which the applicant seeks access be filed with the Court, pending determination of the review process initiated by the applicant. It is the responsibility of the respondent N.R.C. and the Minister concerned to preserve the N.R.C.'s records. There is no evidence that responsibility is not being met which would warrant an unusual order of the Court that the document and copies of it be preserved by the Court as the applicant requested at the hearing. At the hearing, counsel for the respondent was directed, however, to advise his client that the Court expects that its responsibility for preservation of records would be met. |
[8] The Court is not persuaded that directions as sought by the applicant's motion are warranted at this stage.
[9] The schedule established by Order of Madam Justice Reed dated February 10, 1998, provides a timetable to facilitate an expeditious hearing of the applicant's motion for review. It will permit determination of the applicant's right of access to the records it seeks, but has thus far been refused, under the Access to Information Act.
[10] An Order goes dismissing the applicant's motion.
W. Andrew MacKay
_________________________
Judge
Ottawa, Ontario
April 27, 1998