Date: 20030824
Citation: 2004 FCA 277
Docket: A-417-04
BETWEEN:
CLERK OF THE PRIVY COUNCIL
Appellant
and
JEAN PELLETIER
and
ATTORNEY GENERAL OF CANADA
Respondents
A-418-04
BETWEEN:
CLERK OF THE PRIVY COUNCIL
Appellant
and
MICHEL VENNAT
and
ATTORNEY GENERAL OF CANADA
Respondents
Hearing held at Montréal, Quebec, on August 20, 2004.
Order delivered at Ottawa, Ontario, on August 23, 2004.
REASONS FOR ORDER: NADON J.A.
Date: 20030824
Citation: 2004 FCA 277
Present: NADON J.A.
Docket: A-417-04
BETWEEN:
CLERK OF THE PRIVY COUNCIL
Appellant
and
JEAN PELLETIER
and
ATTORNEY GENERAL OF CANADA
Respondents
A-418-04
BETWEEN:
CLERK OF THE PRIVY COUNCIL
Appellant
and
MICHEL VENNAT
and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
NADONJ.A.
[1] Last August 4, Hugessen J. of the Federal Court dismissed an objection by the appellant under section 39 of the Evidence Act, R.S. 1995, c. C-5, against a request for material filed by the respondents, Jean Pelletier and Michel Vennat, pursuant to rule 317 of the Federal Court Rules, 1998.
[2] Accordingly, Hugessen J. ordered that the materials be produced within 10 days of his decision.
[3] The very day of the decision by Hugessen J., the appellant filed his notices of appeal before this Court. In his motion, the appellant asked the Court to stay the order by Hugessen J. pending our decision on his appeal. For the following reasons, the application for a stay will be allowed.
[4] To succeed, the appellant must meet the three criteria identified by the Supreme Court of Canada in RJR Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, i.e. that there is a serious issue to be tried, that irreparable harm will result if the stay is not granted and, finally, that the balance of convenience favours him.
[5] First, I am persuaded that the appellant will suffer irreparable harm if the stay is not granted, since the production of material would result in the loss of their confidentiality. The appeal will then be illusory and moot.
[6] With regard to the balance of convenience, it clearly leans toward the appellant since the there will be no harm to the respondents, except that they will have to wait several months before obtaining the material in the event that the appeal is dismissed.
[7] I now turn to the serious issue. According to the appellant, that involves determining the sufficiency of the description of the confidential information of the Cabinet mentioned in the certifications of the Clerk of the Privy Council, Alex Himmelfarb, dated May 26, 2004.
[8] Hugessen J., relying on the decision of the Supreme Court of Canada in Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3, determined at paragraph 5 of his reasons that:
[5] . . . it is clear beyond the shadow of a doubt that the two documents described by the Clerk in his schedule in the Vennat case, above, and the first document described in his schedule in the Pelletier case, have formal and fatal defects . . .
[9] According to the respondents, here there is no prima facie case or even a serious issue. They add that there is no doubt that the certifications of the Clerk of the Privy Council do not meet the minimum criteria advanced by the Supreme Court in Babcock, supra, namely the author, title and date of the documents with regard to which confidentiality has been raised. Specifically, the respondents rely on the following passage in Babcock, found at paragraph 28, where the Supreme Court states the following:
It may be useful to comment on the formal aspects of certification. As noted, the Clerk must determine two things: (1) that the information is a Cabinet confidence within s. 39; and (2) that it is desirable that confidentiality be retained taking [page20] into account the competing interests in disclosure and retaining confidentiality. What formal certification requirements flow from this? The second, discretionary element may be taken as satisfied by the act of certification. However, the first element of the Clerk's decision requires that her certificate bring the information within the ambit of the Act. This means that the Clerk or minister must provide a description of the information sufficient to establish on its face that the information is a Cabinet confidence and that it falls within the categories of s. 39(2) or an analogous category; the possibility of analogous categories flows from the general language of the introductory portion of s. 39(2). This follows from the principle that the Clerk or minister must exercise her statutory power properly in accordance with the statute. The kind of description required for claims of solicitor-client privilege under the civil rules of court will generally suffice. The date, title, author and recipient of the document containing the information should normally be disclosed. If confidentiality concerns prevent disclosure of any of these preliminary indicia of identification, then the onus falls on the government to establish this, should a challenge ensue. On the other hand, if the documents containing the information are properly identified, a person seeking production and the court must accept the Clerk's determination. The only argument that can be made is that, on the description, they do not fall within s. 39, or that the Clerk has otherwise exceeded the powers conferred upon her.
[10] If today I had to decide the issue of the merits, I would be inclined to decide in favour of the respondents. Furthermore, after a careful review of Babcock, supra, I cannot find - as the respondents are asking me to find - that the appellant's arguments are devoid of any merit and that he could never be successful on appeal.
[11] In my opinion, therefore, the appellant has satisfied the three criteria identified by the Supreme Court in RJR MacDonald, supra.
[12] There is only one point raised by the respondents left to be addressed: whether I should not exercise my discretion in the appellant's favour, since the appellant failed to produce the documents in the time limit prescribed by Hugessen J. in his order dated August 4, 2004, i.e. within 10 days of the date of the decision.
[13] In support of their arguments, the respondents refer me to a decision by Hugessen J. in Canada (Director, Investigation and Research) v. Warner Music Group Ltd., docket number T-1959-97, dated October 29, 2004, and specifically, to the words of Hugessen J. at paragraph 8 of his reasons:
[8] Before leaving this case, there is one comment that I wish to make on a matter which I explored with counsel but which, because of the findings I have made on the three part test, is not strictly relevant to my decision today . The point is this; the order being appealed required the production of the information and documents by 5h00 p.m. on October 21st, this year. That is just one week ago. That order has not been complied with. The appellant does not come before the Court in the classic expression with "clean hands". In my view, when a party seeks a discretionary exercise by a Court, that party is well advised not to be in default of the performance of any obligations it may have under Court orders. I appreciate, and counsel argued, that time was short. Mr. Justice Lutfy's revised order was issued on October 15, 1997, and compliance therewith was required only six days later. However, given that the appellant was conscious and aware of the requirement to comply on the 21st of October, at 5h00 p.m., it was the appellant's duty to move this Court prior to that time to be relieved, even temporarily, of the duty of compliance. This Court is always available. An application of that sort might even be accepted ex parte. It could certainly be made on short notice and, indeed, I would hazard a guess at saying that it might even be the subject of a consent extension for a short period of time pending the hearing of an application to stay such as this one. As I say, the point is not critical to my decision today, but I think it is something that counsel should bear in mind, because parties who are in non-compliance with Court orders will find considerable difficulty in persuading the Court that they should be the subject of a discretionary order in their favour.
[14] Even if I were to agree entirely with the statements of Hugessen J., I am prepared under the circumstances of this case to exercise my discretion in the appellant's favour. Accordingly, the motion will be granted and Hugessen J.'s decision dated August 4, 2004, will be stayed pending this Court's decision on the appeals filed against that judgment.
[15] Furthermore, given that the appellant should have filed this motion within the 10-day limitation period to file those documents and that no reasonable explanation was offered to justify that omission, the respondents shall be entitled to their costs.
"M. Nadon"
J.A.
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-417-04
STYLE OF CAUSE: Clerk of the Privy Council v. Jean Pelletier et al
PLACE OF HEARING Montréal, Quebec
DATE OF HEARING: August 20, 2004
REASONS FOR ORDER: Nadon J.A.
DATE OF REASONS: August 24, 2004
APPEARANCES:
|
Brian Saunders
Patrick Girard Geneviève Magnan |
For the appellant
For the respondent, Jean Pelletier |
|
Alberto Martinez |
For the respondent, AGC |
SOLICITORS OF RECORD:
|
Ministère de la Justice Canada Ottawa, Ontario
Stikeman Elliott Montréal, Quebec |
For the appellant
For the respondent, Jean Pelletier |
|
Deslauriers Jeansonne Montréal, Quebec |
For the respondent, AGC |
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-418-04
STYLE OF CAUSE: Clerk of the Privy Council v. Michel Vennat et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 20, 2004
REASONS FOR ORDER: Nadon J.A.
DATE OF REASONS: August 24, 2004
APPEARANCES:
|
Rosemary Millar Brian Saunders
Patrick Girard Geneviève Magnan |
For the appellant
For the respondent, Michel Vennat |
|
Alberto Martinez |
For the respondent, AGC |
SOLICITORS OF RECORD:
|
Department of Justice Canada Ottawa, Ontario
Stikeman Elliott Montréal, Quebec |
For the appellant
For the respondent, Michel Vennat |
|
Deslauriers Jeansonne Montréal, Quebec |
For the respondent, AGC |