Judgments

[2001] 1 F.C. 156

T-2682-87

Sinclair M. Stevens (Plaintiff)

v.

The Attorney General of Canada (Defendant)

Indexed as: Stevens v. Canada (Attorney General) (T.D.)

Trial Division, Lafrenière P.—Toronto, May 29 and August 8, 2000.

Practice — Discovery — Examination for discovery — Motion for leave to examine Commissioner, appointed under Inquiries Act, pursuant to r. 238 — Action brought in which Commissioner, Attorney General named as party defendants — F.C.A. ordering Commissioner struck as party defendant — No undue delay, inconvenience, prejudice to parties, Commissioner should leave be granted under r. 238 — Limited discovery proposed by plaintiff not unduly lengthening proceedings — All reasonable means not exhausted by plaintiff to obtain required information from other sources — No evidence other persons present during discussions regarding role of Commission counsel in report-drafting phase approached informally by plaintiff — Only issue meeting all conditions in r. 238(3) that of role of Commission counsel after public hearings phase as information unavailable to plaintiff through other sources — Discovery denied on ground of deliberative secrecy.

Practice — Privilege — Commissioner, appointed under Inquiries Act, objecting to examinationfor discovery regarding role of Commission counsel, other issues on basis of solicitor-client privilege — Privilege protecting communications between solicitor and client, not facts contained in communication, or acts performed by solicitor on behalf of client — Objection upheld only with respect to communications, not activities of Commission counsel.

Inquiries — Commissioner appointed under Inquiries Act to inquire into alleged conflict of interest — Commissioner, Attorney General sued for defamation over inquiry report — Commissioner struck as party — Commissioner opposing motion for examination for discovery on basis of deliberative secrecy — Plaintiff submitting rules of natural justice not followed by Commissioner — Facts alleged failing to meet high threshold for piercing deliberative secrecy, not raisingserious questions of denial of natural justice — Speculation by plaintiff Commission counsel may have been involved in writing Commission report not valid reason for lifting deliberative secrecy.

Judges and Courts — C.J. of S.C.O., High Court Division, appointed Commissioner to inquire into alleged conflict of interest — Commissioner, Attorney General sued for defamation over inquiry report — Commissioner struck as defendant — Commissioner objecting to motion for leave to examine him for discovery on grounds of judicial independence, deliberative secrecy — Quasi-judicial tribunals, such as commissions of inquiry, not having high level of immunity enjoyed by judiciary against being compelled to testify — Deliberative secrecy lifted where valid reasons for believing natural justice rules not adhered to — Commissioner not compellable witness as not exceptional case warranting Court’s intervention.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1.

Federal Court Rules, 1998, SOR/98-106, rr. 238, 271.

Inquiries Act, R.S.C., 1985, c. I-11.

CASES JUDICIALLY CONSIDERED

APPLIED:

Smith v. Jones, [1999] 1 S.C.R. 455; (1999), 169 D.L.R. (4th) 385; [1999] 8 W.W.R. 364; 120 B.C.A.C. 161; 62 B.C.L.R. (3d) 209; 132 C.C.C. (3d) 225; 22 C.R. (5th) 203; 236 N.R. 201; In the Matter of an Application under section 441.1(3)(c) of the Criminal Code, CC881107, Hollinrake J., judgment dated 21/2/90 (B.C.S.C.), not reported; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169; Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) (1993), 99 D.L.R. (4th) 682; 9 Admin. L.R. (2d) 61; 60 O.A.C. 161 (Ont. Div. Ct.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 2 F.C. 668 (1996), 133 D.L.R. (4th) 565; 37 Admin. L.R. (2d) 241; 109 F.T.R. 96 (T.D.).

CONSIDERED:

Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 (1998), 228 N.R. 133 (C.A.); Edwards v. Canada (Attorney General) (1999), 46 O.R. (3d) 447; 182 D.L.R. (4th) 736 (S.C.).

AUTHORS CITED

Canada. Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report. Ottawa: Minister of Supply and Services Canada, 1987 (Commissioner: William D. Parker).

MOTION by plaintiff for leave to examine for discovery the Honourable W. D. Parker pursuant to rule 238 of the Federal Court Rules, 1998. Motion dismissed.

APPEARANCES:

Peter R. Jervis for plaintiff.

Richard A. Kramer for defendant.

Eleanore A. Cronk for Commissioner Parker.

SOLICITORS OF RECORD:

Lerner & Associates, Toronto, for plaintiff.

Deputy Attorney General of Canada for defendant.

Lax O’Sullivan Cronk, Toronto, for Commissioner Parker.

The following are the reasons for order and order rendered in English by

[1]        Lafrenière P.: This is a motion by the plaintiff for leave to examine for discovery the Honourable W. D. Parker (Commissioner Parker) pursuant to rule 238 of the Federal Court Rules, 1998 [SOR/98-106]. In addition or in the alternative, the plaintiff seeks an order pursuant to rule 271 allowing the examination for trial of Commissioner Parker out of Court.

[2]        Commissioner Parker resists the motion on the grounds that the discovery proposed by the plaintiff relates to matters that cannot be divulged without breaching solicitor-client privilege and deliberative secrecy. He also contends that the plaintiff has not satisfied all of the requirements of rules 238 and 271 of the Federal Court Rules, 1998. The defendant, the Attorney General of Canada, joins in opposing the relief sought by the plaintiff.

BACKGROUND

[3]        On May 15, 1986, the Honourable W. D. Parker, then Chief Justice of the Supreme Court of Ontario, High Court Division, was appointed a Commissioner under Part I of the Inquiries Act, R.S.C., 1985, c. I-11 by order in council with a mandate to conduct an inquiry into:

a) the facts following allegations of conflict of interest made in various newspapers, electronic media and the House of Commons, with respect to the conduct, dealings or actions of the Honourable Sinclair M. Stevens; and

b) whether the Honourable Sinclair M. Stevens was in real or apparent conflict of interest as defined in the Conflict of Interest and Post Employment Code for Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985.

[4]        Commissioner Parker submitted his report concerning the inquiry to the Governor General in Council on December 3, 1987 [Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report].

[5]        On December 18, 1987, the plaintiff instituted the present action in which he named both Commissioner Parker and the Attorney General of Canada as party defendants. The plaintiff alleges that the report which emanated from the inquiry has caused him injury and damaged his reputation in the community.

[6]        Paragraph 5 of the statement of claim alleges that Commissioner Parker “acted outside of and in excess of his jurisdiction and failed to act in accordance to the principles of natural justice” in conducting the inquiry, and in particular:

(1)  The Commissioner exceeded his terms of reference and jurisdiction and erred in law:

(a)  in defining what constitutes a conflict of interest within the meaning of the guidelines for public office holders;

(b)  in treating alleged breaches of the blind trust, per se, as an issue to be inquired into and reported on; and

(c)  in treating the mingling of private and public business as an allegation of conflict of interest.

(2)  The procedure adopted violated the rules of procedural fairness and the Charter of Human Rights and Freedoms and in particular s. 7 thereof, as follows:

(a)  no adequate notice was given of the matters to be inquired into;

(b)  section 13 of the Inquiries Act, R.S.C. 1970, c. I-13 was not complied with;

(c)  in the alternative, if s. 13 was complied with, the procedure so authorized contravenes s. 7 of the Charter; and

(d)  the role performed by Commission Counsel was contrary to the principles of fundamental justice and deprived the applicant of his right to a determination by a fair and impartial tribunal.

[7]        In his prayer for relief found at paragraph 7 of the statement of claim, the plaintiff seeks a declaration that the Commissioner’s report be set aside and declared to be of no force and effect.

[8]        In March 1997, Commissioner Parker brought a motion to be struck as a party defendant in the action. The plaintiff took the position that the presence of Commissioner Parker as a defendant was necessary in order to have full and complete discovery. The motion was unsuccessful at first instance, however the Federal Court of Appeal allowed an appeal on June 5, 1998 and ordered Commissioner Parker struck as party defendant. Stone, J.A., for the Court, wrote:[1]

It would appear that the respondent’s primary interest in joining the appellant Parker is to ensure his availability for discovery as a party defendant. Thus in paragraph 38 of the respondent’s written argument, he contends that the appellant Parker must remain a party so as to “be subject to the usual discovery obligations of a party to an action” …. It may well be that the evidence of the appellant will be needed at trial but that, by itself, is not a sufficient reason for requiring him to remain as a party defendant.

It is to be noted as well that it is no longer the case that a non-party is absolutely immune by our rules of civil procedure from discovery by a party in an action. The Federal Court Rules, 1998 … themselves provide for the examination for discovery of, and the production of a document by, a non-party. By Rule 238 the Court may grant leave to a party to examine a non-party “who might have information on an issue in the action” if it is satisfied “that the party has been unable to obtain the information informally … or from another source by any other reasonable means”, that “it would be unfair not to allow the party an opportunity to question … before trial” and that the questioning “will not cause any undue delay, convenience [sic] or expense to the person or to the other parties”. By Rule 233 the Court may order the production of any document in the possession of a non-party “if the document is relevant and its production could be compelled at trial”. The potential is thus available under these two rules for the respondent to secure a measure of discovery of the appellant Parker even though he may not be a party to the action.

Moreover, the respondent would be entitled to subpoena the appellant Parker to testify at trial and, for the same purpose, to subpoena other persons who were present at the meeting referred to in paragraph 16 of the respondent’s affidavit.

[9]        The plaintiff attempted to examine Commissioner Parker in writing prior to his removal as a party to the action. Commissioner Parker declined to answer the written interrogatories pending a final decision with respect to his involvement in the action. Since his removal as a party, Commissioner Parker has resisted any further discovery attempts by the plaintiff.

[10]      The plaintiff tried to obtain information requested of Commissioner Parker through the discovery of the representative of the defendant, however the government deponent had no knowledge of the internal workings of the Commission. The plaintiff also made a request pursuant to the Access to Information Act [R.S.C., 1985, c. A-1]. This recourse proved ineffective due to statutory exemptions which greatly restricted the extent of disclosure.

[11]      The plaintiff now seeks to examine Commissioner Parker as a non-party with respect to four areas of interrogation namely:

(a) the role and activities of Commission counsel following the public hearings phase of the inquiry;

(b) the understanding between Commissioner Parker and Commission counsel and the discussions between the Commissioner and all counsel involved in the Commission of Inquiry to the effect that Commission counsel would not participate in drafting the Commissioner’s report;

(c) issues concerning the concept of “conflict of interest” as defined and adopted by the Commission; and

(d) particulars of notice given to the plaintiff with respect to the scope of inquiry and the standards against which the plaintiff’s conduct would be measured.

ISSUE

[12]      The issue before the Court is whether the plaintiff should be granted leave to examine for discovery Commissioner Parker, a non-party to the action. A determination of this issue requires consideration of the following questions: (1) whether the plaintiff has met the requirements of rules 238 and 271; (2) whether answers to the questions proposed by the plaintiff are protected by solicitor-client privilege; and (3) whether the principles of judicial independence and deliberative secrecy apply so as to preclude Commissioner Parker from being compellable to testify.

I-Examination of non-parties with leave (rule 238)

[13]      Subsection 238(1) provides that a party may apply to the Court for leave to examine any person not a party to the action who might have information on an issue in the action. Subsection 238(3) sets out four factors which the Court must consider before granting leave. In exercising its discretion, the Court must be satisfied that:

(a) the person may have information on an issue in the action;

(b) the party has been unable to obtain the information informally from the person or from any source by any other reasonable means;

(c) it would be unfair not to allow the party an opportunity to question the person before trial; and

(d) the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.

[14]      The plaintiff submits that he has exhausted all efforts to obtain the information he now seeks from Commissioner Parker. He contends that there is no other source from which the information can reasonably be obtained.

[15]      The plaintiff says it would be unfair to deny him an opportunity to discover Commissioner Parker, particularly since the Federal Court of Appeal, in deciding to remove Commissioner Parker as a party to the action, took into account the possibility he could be examined for discovery as a non-party. In addition, the plaintiff contends that since the defendant joined with Commissioner Parker in moving to have him struck as a party, it can be inferred that the defendant has or will be given information which the plaintiff requires for trial. He submits that fairness dictates that both parties should have access to the same witnesses.

[16]      Finally, the plaintiff says that the proposed questioning would not occasion any significant delay, inconvenience or expense to the parties or Commissioner Parker.

[17]      Commissioner Parker responds that the plaintiff has not satisfied all four conditions set out in subsection 238(3). He does not deny that he may have information being sought by the plaintiff, but argues that the plaintiff has not established that the information cannot be obtained from others. Furthermore, he maintains that there has been undue delay which would cause him significant inconvenience and prejudice.

[18]      I see no merit to the argument by Commissioner Parker that there would be undue delay, inconvenience and prejudice to the parties or himself should leave be granted pursuant to rule 238. The delay contemplated by the rule is that occasioned by the questioning, and not the plaintiff’s previous delay in prosecuting his action. The limited discovery proposed by the plaintiff would not, in my view, unduly lengthen the proceedings. As for inconvenience or prejudice to the parties or Commissioner Parker, none of any significance has been established before me.

[19]      I decline to infer, as the plaintiff would have me do, that Commissioner Parker has or will be providing the defendant with information to which the plaintiff would not have access. There is simply no evidence before me to justify such an inference. In fact, Commissioner Parker has asserted privilege as against both parties.

[20]      I find that the plaintiff has met conditions (a), (c) and (d) set out in subsection 238(3). However, I am not satisfied that all reasonable means have been exhausted by the plaintiff to obtain the required information from other sources. Questions having to do with the scope of the inquiry’s terms of reference and the definition of the term “conflict of interest” should and could have been directed to the defendant.

[21]      As for the discussions between the Commissioner and counsel involved in the inquiry regarding the role of Commission counsel during the report-drafting phase, there is no evidence before me that other persons who were present during the discussions were approached informally by the plaintiff. In fact, the plaintiff received some particulars during his discovery of the defendant.

[22]      Moreover, the plaintiff must surely have knowledge as to how he was notified with respect to the scope of inquiry. The plaintiff could serve a request to admit facts regarding notice which the defendant will have difficulty disputing.

[23]      As for the standards against which the plaintiff’s conduct were measured, these are set out in the Commissioner’s report which speaks for itself. The standards will no doubt be the subject of scrutiny in this action and I see no reason to call the author of the report to expand on his conclusions.

[24]      I conclude that the only area of examination proposed by the plaintiff which meets all the conditions in subsection 238(3) is in relation to the role and activities of Commission counsel following the public hearings phase of the inquiry. This information is clearly unavailable to the plaintiff through other sources.

[25]      I therefore turn to the responding parties’ objections based on solicitor and client privilege and deliberative secrecy before determining whether I should exercise my discretion in favour of the plaintiff.

II-Solicitor-client privilege

[26]      Commissioner Parker submits that the proposed areas of examination are protected by solicitor-client privilege and that the privilege has not been waived.

[27]      In Smith v. Jones,[2] the Supreme Court of Canada held that solicitor-client privilege is the highest privilege recognized by the Court. Cory J., speaking for the majority, defined the nature of the privilege as follows:

Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step.

[28]      Counsel asserts that privilege applies to all communications between Commissioner Parker and his legal advisers, as well as their assigned activities, on matters related to any phase of the inquiry, including the report-writing stage. Consequently, she claims that it would be inappropriate to compel her client to answer any of the proposed questions, either on discovery or by examination out of court for trial.

[29]      The plaintiff responds that solicitor and client privilege does not apply to the acts of counsel, including the act of writing or participating in the preparation of the final report of the Commission. A lawyer’s acts, even though they stem from a client’s instructions, are not communications, but rather matters of fact to which no privilege attaches.

[30]      I agree with the plaintiff that solicitor and client privilege protects communications between a solicitor and his or her client, but not the facts contained in the communication, or the acts a solicitor performs on behalf of his or her client. As Hollinrake J. explained in In the Matter of an Application under section 441.1(3)(c) of the Criminal Code:[3]

What is protected is communications. The privilege is for the protection of the client to enable him to confide in his legal adviser. The acts of the solicitor are facts which, indeed, may proceed from the instructions of the client, but is no wise [sic] confidential communications by the client to the solicitor. Cheques, ledgers, deposit slips, documents of that nature, are not communications between solicitor and a client, but are, rather, documents forming part of the solicitor’s records and they are a report of acts, not communications.

[31]      The plaintiff seeks information regarding the role and activities of Commission counsel following the public hearings phase of the inquiry. Such information could be provided without in any way breaching the privileged communications between solicitor and client. Commissioner Parker’s objection based on solicitor and client privilege is therefore upheld only to the extent that it covers communications and not the activities of Commission counsel.

Judicial independence and deliberative secrecy

[32]      As an additional argument, Commissioner Parker submits that his process of decision making, the formulation of his findings and his consultations with his legal advisers, including their activities, are protected by deliberative secrecy. He submits that the integrity of the principle of judicial independence requires that commissions of inquiry enjoy complete testimonial immunity in respect of their adjudicative function. The plaintiff points out however that the common law protection of deliberative secrecy is not absolute.

[33]      In MacKeigan v. Hickman,[4] the Supreme Court of Canada confirmed the principle of immunity of judges from testifying on the grounds of judicial independence. However, the Court also recognized that exceptional cases could arise where the qualified privilege of immunity from testifying would have to give way; such as when it is necessary to reaffirm public confidence in the administration of justice.

[34]      In Edwards v. Canada (Attorney General),[5] Lax J. concluded that judges do not enjoy absolute testimonial immunity and can be compelled to testify to matters unrelated to their judicial function. However, they cannot be compelled to testify to matters arising in the course of their exercising their judicial function. At page 457, he states:

Judges … must be free to perform their judicial duties without concern that decisions made in “the bona fide exercise of [their] office” are subject to subsequent scrutiny or elaboration: Friedland, supra, at p. 34. An independent judiciary is central to a free and democratic society, and judicial immunity is one of its safeguards.

[35]      However, quasi-judicial tribunals, such as commissions of inquiry, have not been given the same absolute immunity against being compelled to testify. Such was the conclusion of Gonthier J., speaking for the Supreme Court of Canada, in Tremblay v. Quebec (Commission des affaires sociales):[6]

Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may none the less be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.

[36]      In Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal),[7] O’Leary J. came to the same conclusion, that “valid reasons for believing that the rules of natural justice were not followed” needed to be established before deliberative secrecy would be lifted:

In my view, the common law principle involved here is more accurately stated as follows. A judge cannot be forced to testify as to how or why he or any other judge arrived at a decision; a member of a quasi-judicial tribunal can only be required to testify as to how and why he or any member of a panel arrived at a decision when there is compelling and overriding reason that he should testify.

…

In short, it is the common law testimonial privilege, not a statutory testimonial privilege, that will protect a tribunal member from having to testify, when the tribunal’s jurisdiction is being judicially reviewed. But even that common law protection does not apply where as here there are valid reasons for believing that the rules of natural justice were not followed by the tribunal.

The reasons why the common law imposes a rule of deliberative secrecy upon a tribunal are too obvious, especially in the case of a tripartite tribunal, to require enumeration. The integrity of the deliberative process can only be insured if the rule is all but absolute. But absolute it cannot be. Where, as in this case, it becomes necessary to pierce that secrecy to ensure that natural justice has not been denied, then that secrecy will be pierced.

[37]      The plaintiff submits that he has “valid reasons” for believing that the rules of natural justice were not followed by Commissioner Parker. He points to three facts to support his contention:

(1) An article appeared in the Globe and Mail in November 1986 which reported that Mr. Scott (Commission counsel) said that he would help Commissioner Parker write his report;

(2) A meeting subsequently took place with counsel appearing at the inquiry and Commissioner Parker to deal with concerns regarding the role of Commission counsel; and

(3) Commission counsel docketed over 1,700 hours of work and billed over $230,000 in fees after the completion of the public hearings between February 1987 and December 1987.

[38]      I am not persuaded that the above facts constitute sufficient or valid reasons to meet the very high threshold for piercing deliberative secrecy. The plaintiff obviously has access to the article which appeared in the Globe and Mail. He has also been provided with some information by the defendant in answer to undertakings given during discovery regarding the meeting which took place between counsel and Commissioner Parker.

[39]      The fact that Commission counsel performed significant work after the conclusion of the public phase of the inquiry is not suspect in itself, even in light of the Globe and Mail article and the meeting between counsel and Commissioner Parker. Would an informed person conclude that the above facts raise serious questions of denial of natural justice? I think not.

[40]      I am not satisfied that speculation by the plaintiff that Commission counsel may have been involved in writing the Commission report constitutes a valid reason for lifting deliberative secrecy. As was stated by Richard J. (as he then was) in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System):[8]

The Supreme Court of Canada has recognized that administrative tribunals can rely on deliberative secrecy, albeit to a lesser extent than judicial tribunals. The Federal Court of Appeal has ruled that the former Rule 1402 does not provide a discovery procedure, nor is it intended to authorize a fishing expedition.

[41]      The plaintiff is evidently grasping at straws, searching for some evidence that Commission counsel acted improperly in his subsequent dealings with Commissioner Parker. This is not in my view an exceptional case which warrants the Court’s intervention. Therefore, I uphold Commissioner Parker’s objection that he is not compellable as a witness based on deliberative secrecy.

[42]      In light of the above, it is not necessary to deal with the plaintiff’s request to examine Commissioner Parker out of Court pursuant to rule 271. In any event, I am not satisfied that the mere fact that

ORDER

[43]      The plaintiff’s motion is dismissed. If the parties are unable to agree on costs of this motion, they shall serve and file concise written representations within 10 days of the date of these reasons for my consideration.

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