Judgments

[1996] 2 F.C. 483

T-2022-89

Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and The Samson Indian Band and Nation (Plaintiffs)

v.

Her Majesty the Queen in right of Canada and The Minister of Indian Affairs and Northern Development and The Minister of Finance (Defendants)

T-1386-90

Chief Jerome Morin acting on his own behalf as well as on behalf of all the other Members of Enoch’s Band of Indians and the Residents Thereof on and of Stony Plain Reserve No. 135 (Plaintiffs)

v.

Her Majesty the Queen in right of Canada (Defendant)

T-1254-92

Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn, the elected Chief and Councillors of the Ermineskin Indian Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation (Plaintiffs)

v.

Her Majesty the Queen in right of Canada and The Honourable Thomas R. Siddon, Minister of Indian Affairs and Northern Development and The Honourable Donald Mazankowski, Minister of Finance (Defendants)

Indexed as: Samson Indian Nation and Band v. Canada (T.D.)

Trial Division, MacKay J.—Calgary, November 22, 1995; Vancouver, March 14, 1996.

Evidence — Application for order Canada Evidence Act, s. 39 certificate insufficient, and for production of documents listed — Initial affidavits of documents not claiming immunity from disclosure on ground Cabinet confidences — Amended affidavit listing 68 documents under review to determine whether subject to s. 39 production — Documents identified by date, brief description of nature, addressee, addressor — S. 39 certificate later filed certifying 37 documents as containing Cabinet confidences — Identified by generic description tracking language of s. 39(2), bearing no relationship to document numbers in earlier affidavit — S. 39 strictly construed — Certificate not insufficient for matters of form — As no specific requirements as to form in s. 39, form determined by Clerk of Privy Council — Certificate deficient in failure to provide identifying reference, by number or descriptive detail, between documents listed in certificate and those in earlier affidavits of documents — Deficiency remedied if counsel for plaintiffs providing identifying information to Court within reasonable time — Certificate otherwise meeting requirements of s. 39.

Crown — Prerogatives — Crown as party to litigation — Whether still vested with residue of prerogative authority — Responsibility to protect public interest, immunity from disclosure of Cabinet confidences — Rules relating to discovery of documents apply to Crown — Crown Liability and Proceedings Act providing, except as otherwise provided by Act, Regulations, rules of practice, procedure of court in which proceedings taken apply — No exceptions provided.

Practice — Discovery — Production of documents — Documents allegedly constituting Cabinet confidences produced, not yet included in Canada Evidence Act, s. 39 certificate rendering them immune from disclosure — Certificate precluding Court from compelling disclosure whenever filed — In accordance with R. 448, requiring full disclosure by affidavit of documents listing all relevant documents known to party, Crown must provide affidavit with “lists and sufficient descriptions of all documents relevant to any matter in issue” for which no privilege claimed, privilege claimed and in latter case, provide statement of grounds for each claim of privilege — S. 39 not providing for return of documents already produced.

Practice — Discovery — Examination for discovery — Documents allegedly constituting Cabinet confidence produced, not yet included in Canada Evidence Act, s. 39 certificate, rendering them immune from disclosure — Only certificate filed in accord with s. 39 precluding Court from ordering disclosure by answering questions upon discovery — Certificate precluding disclosure whenever filed — Objection to questions relating to document not yet certified on ground answers revealing Cabinet confidences must be confirmed by s. 39 certificate within reasonable time.

This was an application for an order that a Canada Evidence Act, section 39 certificate was insufficient, for production of the documents listed therein, and requiring the defendants’ witnesses at examinations for discovery to answer questions in relation to documents produced, but not yet included in a section 39 certificate. The defendants sought an order for the return of documents produced that were later included in a certificate filed under section 39.

Section 39 provides that where a Minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council (Cabinet), disclosure shall be refused without examination or hearing of the information by the court. Subsection 39(2) elaborates what constitutes such a confidence. Paragraph 39(4)(a) exempts from certification a Cabinet confidence that has been in existence for more than 20 years.

The claims related to alleged breaches of duty dating back almost 50 years. Document production has been an ongoing process, anticipating a series of affidavits of documents. The initial affidavits of documents did not claim immunity from disclosure on the ground that any document contained Cabinet confidences. Thereafter defendants’ counsel realized that certain documents, some of which had already been produced to the plaintiffs, ought to be withheld since they included Cabinet confidences. An amended affidavit of documents was filed which listed 68 documents then under review to determine whether they were subject to production under section 39. That list described each document by date, a brief description of the nature of the document, addressee and addressor. The section 39 certificate, filed later, certified 37 documents as containing Cabinet confidences. None of the detailed descriptive information of earlier document lists was included for any of those documents, which were described in generic terms tracking the wording of the various paragraphs of subsection 39(2). The numbers on the list bore no relationship to document numbers in the affidavits of documents earlier filed. The plaintiffs were unable to determine which documents originally listed as relevant were claimed under section 39, and the certificate was of no assistance to the Court. None of the 37 documents has been produced.

The issues were: (1) whether section 39 should be narrowly construed; (2) whether the Crown as a litigant was subject to requirements of the Federal Court Rules as to time or production of documents; (3) whether the section 39 certificate was sufficient in terms of form and substance; (4) whether the plaintiffs were entitled to oral discovery by examination with regard to information in documents that have been produced, but have not yet been included in a section 39 certificate.

Held, the motion should be allowed in part.

(1) Section 39 should be strictly construed. Parliament restricted Crown immunity by providing for actions against the Crown, and narrowing the absolute nature of the Crown’s claim to public interest immunity in regard to evidence.

(2) The Rules relating to discovery of documents are applicable to the Crown when it is a litigant. In relation to document discovery the Crown Liability and Proceedings Act as amended in 1990 provides that, except as otherwise provided by the Act or the regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings. The Act makes no exception from the Rules for the Crown as a party. Thus, in accord with Rule 448, which requires full disclosure by an affidavit of documents listing all relevant documents known to a party, the Crown must provide an affidavit or affidavits with “lists and sufficient descriptions of all documents relevant to any matter in issue”, for which no privilege is claimed and for which privilege is claimed, and in the latter case it must provide a statement of the grounds for each claim of privilege in respect of a document.

(3) The certificate was not insufficient for any of the matters of form. Section 39 does not include any specific requirements as to form, which is therefore determined by the Clerk, provided the certificate is in a form that is readily seen as a certificate within section 39.

As to substantive deficiencies, the certificate was deficient in its failure to provide any identifying reference, by number or descriptive detail, between the documents as listed in the certificate and those listed in affidavits of documents previously filed. That deficiency may be remedied by provision of information to counsel for the plaintiffs and to the Court that will identify the documents now certified. If information identifying the 37 documents certified, by reference to the documents included in earlier lists, is not provided within such reasonable time as agreed to by the parties or as determined by the Court, the defendants shall produce the documents forthwith.

The certificate otherwise met the requirements of section 39 and of the Court’s Rules. The certificate referred to the documents as “confidences of the Queen’s Privy Council … for the reasons set out in the Schedule”, which listed the documents described by general words tracking the relevant paragraphs of subsection 39(2). As such, the wording was substantially similar to that approved by the Court of Appeal in Canada (Attorney General) v. Central Cartage Co. and any differences were not sufficient to warrant a conclusion that the certificate was deficient.

The certificate certified that paragraph 39(4)(a) did not apply as none of the documents had been in existence for more than 20 years. The plaintiffs argued that information contained in a document may be more than 20 years old, even if the document itself was not. By the definition in subsection 39(2), Parliament intended to permit objection to disclosure of information as it is found in the types of documents therein described, not information at large. In the application of paragraphs 39(4)(a) and (b), relying upon the definition of a confidence as provided by subsection 39(2), the certificate met the statutory requirement.

It was also urged that the certificate should clearly indicate that the information would not be more than 20 years old by the time of the trial of these actions. The application of subsection 39(4) can only be made with reference to the date of the certificate objecting to disclosure, not to an uncertain date in future when the litigation may be ended. In that sense also the certificate met the statutory requirement. The date at which a document said to contain Cabinet confidences becomes 20 years old would be evident, permitting a party once denied access to later claim access, if the age of the confidence comes to exceed 20 years before the trial ends.

(4) A certificate made in accord with section 39 may be filed at any time, before or after disclosure of documents by affidavits of documents or production of the documents themselves, and before questions about them are answered in oral discovery. Aside from very exceptional circumstances, whenever a certificate is filed it effectively precludes the Court thereafter from examining the information or compelling its disclosure, but only a certificate in accord with section 39 can preclude the Court from ordering disclosure by production of documents or by answering questions upon discovery.

The defendants’ representatives were directed to answer questions asked at discovery so far as the answers do not reveal information constituting Cabinet confidences. If the answers require revelation of such information, any objection relating to a document not already certified must be confirmed by inclusion in a section 39 certificate filed within a reasonable time.

Section 39 does not provide for the return of documents already produced. All documents produced are subject to an implied undertaking restricting their use to the action and to the confidentiality order earlier issued.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3 (as enacted by S.C. 1980-81-82-83, c. 111, s. 4).

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38, 39.

Crown Liability Act, S.C. 1952-53, c. 30.

Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 27 (as am. idem, s. 31), 34 (as am. idem, s. 32).

Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604.

Federal Court Rules, C.R.C., c. 663, RR. 447 (as am. by SOR/90-846, s. 15), 448 (as am. idem), 449 (as am. idem), 450 (as am. idem), 451 (as am. idem), 452 (as am. idem), 453 (as am. idem), 454 (as am. idem), 455 (as am. idem), 456 (as am. idem), 457 (as am. idem), 458 (as am. idem), 459 (as am. idem), 460 (as am. idem), 461 (as am. idem), 462 (as am. idem), 463 (as am. idem), 464 (as am. idem), 465 (as am. idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Puddister Trading Co. et al. v. Canada et al. (1995), 95 F.T.R. 92 (F.C.T.D.); Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1992] 2 F.C. 130 (1991), 87 D.L.R. (4th) 730; 135 N.R. 217 (C.A.); I.L.W.U. v. Canada, [1989] 1 F.C. 444(T.D.).

DISTINGUISHED:

Canada (Attorney General) v. Central Cartage Co., [1990] 2 F.C. 641 (1990), 71 D.L.R. (4th) 253; 45 Admin. L.R. 1; 109 N.R. 357 (C.A.); Best Cleaners and Contractors Ltd. v. The Queen, [1985] 2 F.C. 293 (1985), 58 N.R. 295 (C.A.); Leeds et al. v. Alberta (Minister of Environment) et al. (1990), 106 A.R. 105; 69 D.L.R. (4th) 681; 43 L.C.R. 145 (Q.B.).

CONSIDERED:

Carey v. Ontario, [1986] 2 S.C.R. 637; (1986), 58 O.R. (2d) 352; 35 D.L.R. (4th) 161; 22 Admin. L.R. 236; 30 C.C.C. (3d) 498; 14 C.T.C. (2d) 10; 72 N.R. 81; 20 O.A.C. 81; Smith, Kline & French Laboratories Limited v. Attorney General of Canada, [1983] 1 F.C. 917 (1983), 38 C.P.C. 182; 76 C.P.R. (2d) 192 (T.D.).

REFERRED TO:

Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762 (1995), 125 D.L.R. (4th) 294; [1995] 3 C.N.L.R. 18; 184 N.R. 139 (C.A.); R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Air Canada v Secretary of State for Trade (No 2), [1983] 1 All ER 910 (H.L.); Makanjuola v Comr of Police of the Metropolis, [1992] 3 All ER 617 (C.A.).

APPLICATION for an order that a Canada Evidence Act, section 39 certificate was insufficient, for production of documents listed therein, and requiring the defendants’ witnesses at examinations for discovery to answer questions in relation to documents produced, but not yet included in a certificate. Application allowed in part.

COUNSEL:

James A. O’Reilly for plaintiffs in T-2022-89.

Edward H. Molstad, Q.C. for plaintiffs in T-2022-89.

Judy D. MacLachlan for plaintiffs in T-2022-89.

No one appearing for plaintiffs in T-1386-90.

Malcolm O. Maclean for plaintiffs in T-1254-92.

Alan Macleod, Q.C., Mary E. Comeau and Mark E. Tysowski for defendants.

Barbara S. Ritzen and Eric A. Bowie for defendants.

SOLICITORS:

O’Reilly & Associés, Montréal, for plaintiffs in T-2022-89.

Parlee McLaws, Edmonton, for plaintiffs in T-2022-89.

Rae & Company, Calgary, for plaintiffs in T-2022-89.

Biamonte, Cairo & Shortreed, Edmonton, for plaintiffs in T-1386-90.

Blake, Cassels & Graydon, Vancouver, for plaintiffs in T-1254-92.

Macleod Dixon, Calgary, for defendants.

Deputy Attorney General of Canada for defendants.

The following are the reasons for order rendered in English by

MacKay J.:

Issues concerning a certificate under section 39 Canada Evidence Act

The Samson Indian Band and Nation as plaintiffs in one action (T-2022-89), being dealt with in preparations for trial together with the other two actions ordered to be heard at the same time, seek an order that a certificate issued and filed herein pursuant to section 39 of the Canada Evidence Act[1] (the Act), is insufficient, and that documents listed in the certificate be produced to plaintiffs.

The plaintiffs also seek an order that the defendants’ witnesses at examinations for discovery be required to answer questions in relation to documents produced in these actions, in some cases already marked as exhibits, for which no claim has been made by a section 39 certificate that the documents are confidences of the Queen’s Privy Council for Canada.

The plaintiffs in T-2022-89 are supported by the plaintiffs in T-1386-90 (the Enoch Band) and the plaintiffs in T-1254-92 (the Ermineskin Band) in their submissions, for the documents and oral evidence in discovery are generally relevant in all three actions.

In written submissions for the defendants, the issues raised by the motion in regard to section 39 of the Act are expressed as follows:

1.   Where documents have been listed in an Affidavit of Documents, but copies of them have not been furnished to opposing counsel, and those documents are subsequently made the subject of a Certificate issued under s. 39, is that Certificate effective to preclude further disclosure of the information contained in them?

2.   Where documents have been listed in an Affidavit of Documents and copies of them have been furnished to opposing counsel, and it is subsequently discovered that they contain information which constitutes a confidence of the Queen’s Privy Council for Canada (hereafter “a cabinet confidence”), can the documents then be made the subject of a Certificate issued under s. 39, and if so what is the effect of that Certificate? Specifically, is a Crown deponent at an examination for discovery required to answer questions about the information contained in the documents?

The issues thus described and those implied by the plaintiffs’ motion do not include all of the questions raised in argument when the motion was heard. For example, the defendants ask the Court to order return of documents produced that are later included in a certificate filed under section 39 of the Act. There are different perceptions of the requirements for a certificate under section 39 of the Act in the circumstances of these cases, and differences as to the effects of that certificate under the Act. I propose to deal with the questions raised when the motion was heard. These are discussed in relation to underlying principles, the sufficiency of the certificate filed, and the application of section 39 in relation to documents already produced, but only after a brief overview to the background, the text of section 39 and of the certificate filed in this case.

The background

Trial of these three actions is now scheduled to commence in spring 1997. In the actions various forms of relief are claimed against Her Majesty the Queen and certain of her officers. The claims relate to alleged breaches of trust and of fiduciary duties concerning the management of oil and gas resources on the respective reserve lands of the three plaintiff bands (the oil and gas issues), concerning the management of revenues derived as royalties from those resources (the money management issues), and concerning the provision of services to the three bands (the programs and services issues). The claims relate to alleged breaches of duty extending back almost fifty years, to the mid-to-late 1940s.

The nature of the claims, extending over many years, presents major difficulties for document production in accord with the Court’s Rules [Federal Court Rules, C.R.C., c. 663], particularly for the defendants, who early found that records of more than one government department or agency required examination for relevant documents. With the Court’s directions in case management, initiated under the Associate Chief Justice, the parties developed a process for document production as a continuing process anticipating a series of affidavits of documents. Counsel for Her Majesty and the other defendants established processes to facilitate document production to assist all parties and to meet the Court’s pre-trial procedures. This has been a major task for, as noted in the affidavit of Gregor MacIntosh, sworn and filed October 20, 1994, the computer system developed to manage documents in these actions by that time contained records of more than 50,000 documents retrieved from files in Ottawa, Calgary and Edmonton.

Thus, for example, after the first affidavits of documents were filed in the spring of 1994 as directed by the Court, access to documents and production of copies was initiated and carried on as documents became available and were processed by defendants’ counsel. That process has made it possible to commence examinations for discovery before all documents were produced. As we shall note, supplementary affidavits have since been filed as directed by the Court, and the process of document production is on-going.

In accord with directions of the Court, affidavits of documents were first filed by the defendants on March 3, 1994, for the money management issues, on March 30, 1994 for the oil and gas issues, and on June 15, 1994 for programs and services issues. In these affidavits no limit or qualification on disclosure is expressed in relation to section 39 of the Act. That is, no documents are claimed as immune from disclosure on grounds that they contain confidences of the Queen’s Privy Council.

Of the documents listed as relevant in the initial affidavits, more than a thousand were claimed as privileged on the basis of solicitor-and-client privilege. After the affidavits of documents were filed, defendants’ counsel realized that certain documents, some of which had already been produced to the plaintiffs, ought to be withheld and not produced in the action since, upon review, they include matters of Cabinet confidence, disclosure of which should be objected to pursuant to section 39 of the Act.

The parties were unable, after filing of the first affidavits of documents, to resolve differences between them concerning production of the documents claimed as privileged or suggested as subject to the possible application of section 39. After hearing counsel, on September 9, 1994, I ordered that the defendants file by October 20, 1994 an amended affidavit or affidavits of documents which, inter alia, would indicate,[2] in a Schedule IIB, all documents previously listed or subsequently discovered

… for which privilege is claimed in accord with s. 39 of the Canada Evidence Act under a certificate filed in compliance with that section on or before October 20, 1994; if no such certificate is filed by that date any documents that might have been claimed as privileged in accord with s. 39 shall be produced forthwith.

That order was appealed but not with respect to the directions concerning a certificate under section 39. In passing, in the decision of the Court of Appeal, Justices MacGuigan and Décary noted that those directions as to compliance with section 39 of the Act were not appealed.[3]

An amended affidavit of documents was filed on October 20, 1994. In a Schedule IIB to that affidavit the defendants’ affiant, Mr. MacIntosh, listed some 68 documents as subject to review to determine whether “they are subject to the protection of section 39” of the Act. Completion of that review and filing of a certificate under that section had not been possible by October 20. The date for filing the certificate was then further extended by orders, first to November 30, 1994, and ultimately to December 16, 1994 when a certificate was filed under section 39, certifying 37 documents as containing confidences of the Queen’s Privy Council for Canada and not to be disclosed.

Document production, by the defendants in particular, has been on-going. Thus, after the first affidavits of documents were filed, the defendants’ processes resulted in production of further documents as these were processed, whether or not they were included in the first affidavits, in the expectation that supplementary affidavits would include any documents not previously included in an affidavit list. In accord with the Court’s directions the amended affidavit of documents was filed October 20, 1994, the certificate was filed under section 39 on December 16, 1994, and supplemental affidavits of documents were filed in December 1995. Additional supplementary affidavits of documents are expected, for document production is not yet complete.

In the defendants’ document production, after late 1994, the procedures were changed so that only after documents have been screened by Crown officers, to identify and withhold those considered to contain information to be protected from release under section 39 of the Act, are documents provided to counsel for defendants for classification in regard to the issues raised, for entry in the computer based system, and ultimately for production to plaintiffs. Previously, screening for information considered as confidences of Cabinet within section 39 was done only after documents had already been listed in the first affidavits of documents or otherwise produced to the plaintiffs. In the result, as I understand it, the defendants now suggest there will be a further section 39 certificate or certificates concerning documents produced to plaintiffs prior to December 1994 which are not included under the one certificate already filed. Counsel for defendants believes that documents produced after December 1994 ought not to include information that may be claimed under section 39 certificates.

I have noted that by the affidavit filed October 20, as directed by the Court, the defendants’ affiant sets out a list of 68 documents then under review to determine whether they are subject to production under section 39 of the Act. That list, in Schedule IIB to the affidavit, describes each by date, by brief description of the nature of the document, by addressee and addressor, in a manner similar to that by which the document would have been listed, if it was, in the original affidavits of documents. For each document listed in that Schedule IIB of the October 20, 1994 affidavit, a separate notation is entered: “This document is protected pursuant to section 39 of the Canada Evidence Act”. In the original lists most of those 68 documents would have been listed as relevant, and producible, except for a few that might also have been listed as privileged. None of the detailed descriptive information of earlier document lists is included for any document listed in the Schedule A to the section 39 certificate of the Clerk of the Privy Council filed in December 1994. As we shall see the documents are there described in generic terms reflecting the words of various paragraphs in subsection 39(2) of the Act, a description which is simply not related in any manner to the earlier descriptions of documents in the original affidavits of documents or to earlier numbers assigned to the documents in the defendants’ document record system. That is one factor which leads the plaintiffs to argue the certificate is insufficient in this case. I add that from the face of the section 39 certificate there is no way of tracing to determine whether the documents included have already been produced to the plaintiffs.

There was clarification at the hearing of this application of some factors known to counsel for defendants, but not known to other counsel and not discernible from the certificate and affidavits earlier filed. These factors help to clarify the circumstances and they underline some aspects of these reasons. Thus, it was confirmed at the hearing that the 37 documents included in the schedule to the section 39 certificate are all documents within the 68 listed in Schedule IIB in the affidavit filed October 20, 1994. None of the 37 documents listed with the certificate has been produced to the plaintiffs, but they have been included in the original lists of documents by detailed description and in Schedule IIB in the October 20, 1994 affidavit with similar detail, as earlier noted. The other 31 documents listed in the IIB Schedule to that affidavit, which are omitted from the list included with the Clerk’s certificate, have now been produced or are intended to be produced to plaintiffs, unless they are also classified as subject to a claim of solicitor-and-client privilege.

To sum up, the section 39 certificate filed in December 1994 included 37 documents containing information constituting confidences of the Queen’s Privy Council for Canada. None of these have been produced to the plaintiffs, though they are included with minimal descriptive detail in affidavits of documents.

The Legislative provision[4]

The Act provides for immunity from production of evidence concerning information about Cabinet confidences, as follows:

39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

(2) For the purpose of subsection (1), “a confidence of the Queen’s Privy Council for Canada” includes, without restricting the generality thereof, information contained in

(a) a memorandum the purpose of which is to present proposals or recommendations to Council;

(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c) an agendum of Council or a record recording deliberations or decisions of Council;

(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and

(f) draft legislation.

(3) For the purposes of subsection (2), “Council” means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.

(4) Subsection (1) does not apply in respect of

(a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or

(b) a discussion paper described in paragraph (2)(b)

(i) if the decisions to which the discussion paper relates have been made public, or

(ii) where the decisions have not been made public, if four years have passed since the decisions were made.

The Certificate filed

In this case the certificate filed pursuant to section 39 of the Act is signed by Jocelyne Bourgon, Clerk of the Privy Council. It includes a certificate and an attached schedule listing 37 documents there described. The certificate itself states as follows:

C E R T I F I C A T E

I, the undersigned, Jocelyne Bourgon, residing in the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, in the Province of Ontario, do certify and say:

1. I am the Clerk of the Queen’s Privy Council for Canada and Secretary to the Cabinet.

2. I have personally examined and carefully reviewed the documents listed in Schedule “A” attached hereto for the purpose of determining whether they contain information constituting confidences of the Queen’s Privy Council for Canada pursuant to section 39 of the Canada Evidence Act, R.S.C. 1985, C-5.

3. I certify to this Honourable Court pursuant to subsection 39(1) of the Canada Evidence Act, R.S.C. 1985, C-5, that all of the documents referred to in the said Schedule are confidences of the Queen’s Privy Council for Canada for the reasons set out in the Schedule attached hereto and I object to the disclosure of these documents and the information contained therein.

4. I further certify to this Honourable Court that paragraph 39(4)(a) of the Canada Evidence Act does not apply in respect of any of these documents as none of the documents have been in existence for more than twenty years and that paragraph 39(4)(b) of the said Act does not apply in respect of any of the documents.

5. If oral evidence were sought to be given on the contents of the documents to the disclosure of which I have in this certificate objected, I would object to such evidence on the same grounds as those herein before set out in relation to the documents in question.

The certificate is then signed by Jocelyne Bourgon, Clerk of the Queen’s Privy Council for Canada and Secretary to the Cabinet. The certificate is accompanied by an affidavit sworn by Roseline MacAngus, Office Assistant of Jocelyne Bourgon, Clerk of the Queen’s Privy Council for Canada and Secretary to the Cabinet, who attests that she witnessed Ms. Bourgon sign the certificate, and that the signature on the certificate is that of Ms. Bourgon.

In the Schedule “A” to the certificate, 37 documents are listed, as noted by a general description that is related to the descriptions of documents included within certain paragraphs of subsection 39(2). Thus, for example, three of the documents listed in Schedule “A” are described as follows:

1.   Document #1 is a copy of agenda(um) of Council or a record recording deliberations or decisions of Council within the meaning of paragraph 39(2)(c) of the said Act. [Note: this description is provided for each of documents 1, 8, 15, 18, 21.]

…

9.   Document #9 is a copy of a memorandum the purpose of which is to present proposals or recommendations to Council within the meaning of paragraph 39(2)(a) of the said Act. [Note: this description is provided for each of documents 2, 3, 5, 7, 9, 14, 16, 19, 22, 29, 30, 33, 35.]

…

34. Document #34 is a copy of a record used for or reflecting communications or discussions between Ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy within the meaning of paragraph 39(2)(d) of the Act. [Note: this description is provided for each of documents 10, 11, 25, 34.]

Within that Schedule the documents certified are listed by a number, from 1 to 37, which bears no relationship to any document number in the affidavits of documents earlier filed, or to any locator number assigned to documents in the defendants’ system for document production. The description of each document listed is taken from the generic descriptions of documents within paragraphs (a), (c), (d), (e) and (f) of subsection 39(2). Thus in document 1 above, the description, “a copy of agenda(um) of Council or a record recording deliberations or decisions of Council”, is in words taken directly from paragraph 39(2)(c ). Each document description concludes with the words “within the meaning of paragraph 39(2) [(a), or (c), or (d), or (e), or (f)] of the said Act”. The Schedule contains only 5 basic descriptions, two of which have modest variations, and, as noted with the example descriptions above, several documents are described, except for the numbers assigned within the Schedule, in the same words. Within each group of documents similarly described there is thus no means of distinguishing one document from another.

For the defendants, counsel notes that the certificate filed in this case is substantially the same as that quoted and given approval by the Court of Appeal in Canada (Attorney General) v. Central Cartage Co.[5] For this reason it is said, as in Central Cartage, the Court must accept the certificate, it may not examine the documents certified as immune from disclosure and it may not require more detail about those documents. In Central Cartage, where the certificate filed tracked the wording of section 39 of the Act, the Court of Appeal allowed the appeal from the order of the Motions Judge, who had directed that the certificate should state the date of the document, from whom and to whom it was sent and its subject-matter.

The issues

In argument the parties differed in regard to a number of issues which I classify in three general topics. The first concerns underlying principles which provide a framework for resolution of the other issues. These underlying principles include the appropriate approach to construction of section 39 of the Act, and the obligations of the Crown under the Court’s Rules, here for pre-trial discovery. The second issue concerns the sufficiency of the certificate filed under section 39 in light of the terms of that provision, an issue which the plaintiffs contend involves both considerations of form and of substance. The third issue concerns oral discovery by examination of the defendants’ representatives, particularly with regard to information in documents that have been produced to the plaintiffs and that, upon subsequent review, are later considered to contain Cabinet confidences, but the documents have not yet been included in a certificate filed in accord with section 39.

I turn to these general issues, and to minor issues dealt with in argument which relate to one or other of the general issues.

Underlying Principles—A Framework for Resolving Issues

In my view the parties differ in their views of basic underlying principles here applicable. The first difference concerns their respective approaches to the interpretation of section 39. In the plaintiffs’ view the provision for absolute immunity from disclosure of information properly certified under section 39 is an extraordinary feature that is contrary to the modern open approach to litigation, even litigation involving the Crown, and it adversely affects the position of the subject involved in litigation, particulary where that is against the Crown. In this regard the plaintiffs express particular concern for adverse effects upon aboriginal rights arising from the construction of statutes, a matter referred to by the Supreme Court of Canada in Sparrow.[6] For these reasons, it is said section 39 ought, in these circumstances, to be strictly construed and given narrow application.

In the Crown’s view, on the other hand, the longstanding recognition in the courts of public interest immunity, within which Cabinet confidences have a place of special importance, warrants a liberal interpretation consistent with the importance of maintaining that immunity. The defendants refer to English cases[7] which speak of the Crown’s responsibility to protect matters of public interest especially Cabinet confidences, by claiming immunity from disclosure.

In this country, at least for the federal Crown, Parliament has limited that responsibility and the significance of a claim to immunity, even with regard to confidences of Cabinet, except in limited circumstances. The Crown’s general immunity has been reduced, in part by providing for actions against the Crown,[8] and in part by subsequently narrowing the absolute nature of the Crown’s claim to public interest immunity in regard to evidence. The evolution of the latter restriction, in regard to evidentiary matters, is traced by Mr. Justice La Forest in Carey v. Ontario,[9] in regard to common law developments. There, in the absence of a statutory base comparable to section 39 of the Act, the courts have moved to examining documents claimed as immune from production, balancing the public interests in maintaining confidence and in disclosing documents in the administration of justice.

The evolution of public interest immunity as an evidentiary matter concerning the federal Crown is traced by Mr. Justice Strayer in Smith, Kline & French Laboratories Limited v. Attorney General of Canada.[10] In light of that evolution it seems clear that Parliament has moved to restrict Crown immunity, and section 39 of the Act, preserving that immunity where a certificate drawn in accord with the Act is filed. Section 39 does not create an immunity for Cabinet confidences. Rather, those confidences are immune from ordered production of documentary or oral evidence relating to them, provided the requirements of the section are met. In these circumstances, section 39 is to be strictly construed, in my opinion.

The second matter on which the parties’ views appear to differ, though this was not directly discussed in argument on the motion, is in regard to the obligations of the Crown as a party to litigation under the Court’s Rules. Implicit in the submissions of the plaintiffs is the principle that the Crown as a party to litigation is subject to the Court’s Rules, in pre-trial preparations as in other matters, in the same way as other parties, unless there be a specific statutory or regulatory exception. For the defendants it is uncertain whether they perceive that the Crown is still vested with some residue of prerogative authority, beyond statutory provisions, that affect its position in litigation. My uncertainty arises from the emphasis of counsel for the defendants upon the Crown’s special responsibility to protect and preserve the public interest and immunity of Cabinet confidences from required disclosure, a responsibility that should not be lost through mere inadvertence, as Crown counsel described the production of documents in this case, a description with which I disagree. My uncertainty arises also from counsel’s suggestions that section 39 of the Act is not subject to requirements of the Court’s Rules as to time or otherwise, as if enforcement of the Court’s Rules somehow was in conflict with section 39, and from the suggestion of counsel that an amended affidavit of documents should be filed by defendants, omitting those documents certified under section 39. Interestingly, it was only in connection with that suggestion and the request that the plaintiffs be directed to return documents that once produced might later be included under a section 39 certificate, that counsel indicated defendants would be prepared to identify the documents certified, by reference to descriptions or numbers earlier assigned to them.

With respect, these comments might be taken to suggest counsel is not aware of, or is not prepared to accept as applicable to the Crown, the Court’s Rules relating to production of documents particularly as these were changed in 1990 by Amending Order 13.[11] Prior to that change, document discovery, subject to the Court’s order otherwise, merely required a list of documents which might advance a party’s case or rebut that of an opponent. Since 1990, Rule 448 requires full disclosure by an affidavit of documents listing all relevant documents known to a party. The affidavit is sworn and the Rules require a certificate of the solicitor that the necessity of full disclosure has been explained and the possible consequences of failing to provide it have been set out to the affiant.

The Rules relating to discovery of documents, in my opinion, are fully applicable to the Crown when it is a litigant. That was specified in the Rules as they existed up to 1990, for the former Rule 447 provided in part:

Rule 447. (1) After the close of pleadings, there shall, subject to an in accordance with the provisions of these Rules, be discovery (including the giving of an opportunity to inspect and make copies) of documents by the parties to an action (including the Crown when it is such a party)….

While the Rules as amended in 1990 no longer specify that they are applicable to the Crown, in relation to document discovery, the Crown Liability and Proceedings Act, as amended in 1990[12] now provides:

27. Except as otherwise provided by this Act or the regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings.

That Act itself makes no exception from the Rules for the Crown as a party. Section 34 [as am. idem, s. 32] of that Act authorizes the Governor in Council to make regulations, inter alia, prescribing rules of practice and procedure in respect of proceedings by or against the Crown, or making applicable to any proceedings against the Crown all or any of the rules of evidence applicable in similar proceedings. Regulations enacted thus far include the Crown Liability and Proceedings (Provincial Court) Regulations,[13] which effectively place the federal Crown in the same position as any other party litigant in provincial courts in regard to filing lists of documents, subject to sections 37 to 39 of the Canada Evidence Act. There simply is no statutory or regulatory exception for the Crown from the application of the Court’s Rules.

While a case like this, involving a vast array of documents, presents special problems for the Crown, in my opinion, as a party it is bound by the Rules of this Court in regard to document discovery. Thus, in accord with Rule 448 the Crown must provide an affidavit or affidavits with “lists and sufficient descriptions of all documents relevant to any matter in issue”, inter alia, for which no privilege is claimed, and for which privilege is claimed, and in the latter case it must provide a statement of the grounds for each claim of privilege in respect of a document.

In this case, the original affidavits were properly drawn so far as they included relevant documents that were later perceived as containing information of Cabinet confidences, though the defendants did not then, as they might have done, claim immunity or privilege for certain documents under section 39 of the Act. That claim having emerged, but not having been reduced to a formal certificate, the Court’s order of September 9, 1994, directing filing of a certificate that is now in question, was designed to facilitate filing of an appropriate amended affidavit of documents. That would state, for all parties, any claims of privilege pursuant to section 39 of the Act while ensuring compliance with the Court’s Rules, in particular Rule 448 for full disclosure of relevant documents. That goal of facilitating compliance with the Court’s Rules for full disclosure was to have been met, with some further delay, by filing of the certificate on December 16, 1994, in so far as that certificate is consistent with requirements under section 39, and with the Court’s Rules.

I add two further notes. First, Rule 448 requires lists of documents with “sufficient descriptions of all documents relevant to any matter in issue”. In my view, the inclusion of detailed descriptive information concerning each document listed in the defendants’ original affidavits of documents was consistent with this provision, even for those documents that later became certified under section 39 of the Act. The inclusion of documents in the section 39 certificate by a description that is meaningless in relation to previous lists of documents raises another question dealt with in considering the sufficiency of the certificate. My second note is that I am not persuaded that application of the Court’s Rules in relation to discovery of documents in any way conflicts with section 39 of the Canada Evidence Act.

Sufficiency of the Certificate Filed

For the plaintiffs it is urged that the certificate filed in this case on December 16, 1994, is insufficient, both in form and substance, to qualify as an appropriate certificate under section 39 of the Act. The defendants urge that the certificate is drawn in substantially the same form as was expressly approved by the Court of Appeal in Central Cartage.[14] The certificate is said to track the language of section 39, a formal requirement in accord with the decision of Mr. Justice Strayer in Smith, Kline & French,[15] approved in Central Cartage.[16] As Strayer J. noted, that language at least assures that the Clerk, in making the certificate, has addressed her mind to the criteria and limitations set out in section 39. We should take note that both of these decisions were rendered in relation to a certificate filed under section 39 under the Court’s Rules prior to 1990 which did not require full disclosure of documents.

I am not persuaded the certificate here can be considered insufficient for any of the matters of form in which it is said to be deficient by the plaintiffs. Those deficiencies are said to be a lack of any descriptive title on the certificate referring to section 39 of the Act, the lack of any seal, particularly a seal of the Office of Clerk of the Privy Council, the lack of identification of the Clerk except by her own certificate and the affidavit of her assistant, attesting to witnessing her signature. I note that section 39 includes no specific requirements of this nature for a certificate. This Court can take judicial notice of who serves as Clerk of the Queen’s Privy Council, and the form of the certificate in my view is a matter for determination by the Clerk, provided it be in a form that is readily seen as a certificate within section 39. In my view none of the deficiencies of form here suggested would raise any serious question that the form is not within section 39.

The plaintiffs’ claims of substantive deficiencies warrant more consideration. There are essentially three such claims.

First it is urged that the certificate filed does not address the question of objection to the disclosure of information, except implicitly as information may be included in the documents certified in paragraph 3 of the certificate as “confidences of the Queen’s Privy Council for Canada”. Moreover, that paragraph is contrasted with its counterpart in the certificate approved by the Court of Appeal in Central Cartage[17] where the comparable paragraph certified that the documents referred to “are confidences of the Queen’s Privy Council for Canada as they constitute information contained in” and then there follow 3 generic descriptions tracing the words of what are now paragraphs 39(2)(a),(d) and (e) of the Act. Thus, the wording is different, but in the certificate in this case the comparable paragraph refers to the documents as “confidences of the Queen’s Privy Council for Canada for the reasons set out in the Schedule attached hereto” (which is the list of documents described by general words tracking the relevant provisions of subsection 39(2)). Moreover, paragraph 2 of the certificate in this case notes not only that the documents listed in the Schedule have been reviewed, but also that the purpose of the review was to determine whether they “contain information constituting confidences of the Queen’s Privy Council for Canada pursuant to section 39” of the Act. I agree with counsel for the defendants that the certificate in this case is substantially similar in wording to that approved by the Court of Appeal in Central Cartage and that the differences that do exist do not in themselves warrant a conclusion that the certificate in this case is deficient in light of the requirements of section 39.

The plaintiffs’ argument properly stresses that it is the information and not the document that ultimately constitutes the confidence to be protected from disclosure by proper objection. Yet, in recognition that as a practical matter it may often be difficult to separate the information from the document containing it, subsection 39(2) defines a confidence of the Queen’s Privy Council for Canada as including information contained in various forms of documents described in paragraphs (a) to (f) in that subsection. The certificate filed under section 39 must be read as informed by that definition.

That definition in subsection 39(2) also has significance for one aspect of the plaintiffs’ second ground of alleged substantive deficiency of the certificate filed. In so far as paragraph 4 of the certificate, certifying “that paragraph 39(4)(a) … does not apply in respect of any of these documents as none of the documents have been in existence for more than twenty years”, relates to “documents” and not to “information”, the essence of Cabinet confidences, the certificate is said to be insufficient. The plaintiffs argue that information contained in a document may be more than twenty years old even if the document itself is not. While that is possible it seems clear to me that by the definition in subsection 39(2) Parliament intended to permit objection to disclosure of information as it is found in the types of documents there described, not information at large, or in some document more than twenty years old, which is excluded from certification by paragraph 39(4)(a). As a practical matter objection to disclosure of information may most readily be made by describing the information with reference to certain kinds of documents in which the information is contained. That appears to be what Parliament has here done by subsection 39(2). In the application of paragraphs (a) and (b) of subsection 39(4), relying upon the definition of a confidence as provided by subsection 39(2), the certificate here filed, by its paragraph 4, does meet the statutory requirement.

It was urged that in another sense the application of paragraph 39(4)(a) was here not adequately addressed by the certificate filed. The submission was made that the certificate should clearly indicate that the information in the documents here containing confidences of the Privy Council would not be more than twenty years old by the time trial of these actions ended, now expected by late 1997 or early 1998. It may well be argued that documents containing confidences which are more than twenty years old before the end of the trial should then be accessible to the plaintiffs. Nevertheless, the end of the trial is an uncertain date in future. All section 39 does specify in regard to the “aging” of confidences, is as set out in subsection 39(4), that a confidence in existence for more than twenty years, or one contained in a discussion paper within paragraph 39(2)(b) a maximum of four years from the date of decision made, is not subject to objection against disclosure.

In my view the application of subsection 39(4) can only be made with reference to the date of the certificate objecting to disclosure, not to an uncertain date in future when the litigation may be ended. In that sense also paragraph 4 of the certificate filed, in my opinion, meets the statutory requirement. However, if my view of the third claim of the plaintiffs is sound, as set out in the following paragraphs, the date at which a document, said to contain information constituting a Cabinet confidence, becomes twenty years old would be evident, permitting a party once denied access to later claim access, if the age of the confidence comes to exceed twenty years before the trial ends.

The plaintiffs’ third claim that the certificate filed is substantively insufficient arises from the lack of reference in the certificate, or the Schedule A list appended to it, to any previous number or description of documents in either the original affidavits of documents or the amended affidavit filed October 20, 1994. There is no way of identifying from the certificate any document earlier listed and now claimed as immune from disclosure under section 39. The plaintiffs urge that the certificate filed is not in accord with the order of this Court dated September 9, 1994, which directed the defendants to file, by a date subsequently extended to December 16, 1994, an amended affidavit of documents which “shall include in Schedule II all documents previously listed (or subsequently discovered) in separate lists or classifications, as follows: (inter alia)

Schedule IIB—Documents listed for which privilege is claimed in accord with s. 39 of the Canada Evidence Act under a certificate filed in compliance with that section on or before [the date set, as extended]….

As earlier noted the defendants urge that the certificate filed in this case is substantially similar to the certificate approved by the Court of Appeal in Central Cartage. Moreover, in reliance on that case they assert that once a certificate in this form is filed the Court has no authority to go behind it or to require the provision of descriptive detail such as the date, the addressee and addressor and the nature of the document in question. Thus it is said the Court may not require the minimal routine descriptive data it could require from any other party in relation to documents in discovery.

Central Cartage does appear to support that proposition. Yet that decision must be read in the context in which it was rendered, with reference to questions asked in oral discovery where the then Clerk certified that documents as described in his certificate were confidences of the Queen’s Privy Council for Canada. Those documents had not previously been included in any list of documents provided by the Crown and at the time of the decision, 1988, there was no obligation on the Crown under the Court’s Rules to provide full disclosure by separate lists and sufficient descriptions of all documents relevant to any matter in issue … for which no privilege is claimed … (and those) for which privilege is claimed, with a statement of the grounds for each claim of privilege in respect of a document (to paraphrase subsection 448(2) of the Court’s Rules).

In my view the circumstances of this case are very different. The Crown now has an obligation to fully disclose all documents, with “sufficient description”, relevant to any issue. Initially, it appears, the Crown took that obligation seriously and, in the affidavits filed in March to June 1994 or in the amended affidavit of Gregor MacIntosh filed October 20, 1994, it did list documents with sufficient descriptive detail that they could be identified. Now it claims certain of those documents listed contain Cabinet confidences to be protected from disclosure, but declines to identify the documents in any meaningful way that is of assistance to anybody in this litigation. Clearly the certificate filed can serve no useful purpose for it can mean nothing to the plaintiffs who cannot be expected to comprehend which documents, originally listed as relevant and mostly producible, are now claimed under section 39 of the Act.

Moreover, the certificate which fails to identify documents already listed or to provide any identification of the individual documents to which it refers, is of no assistance to the Court, which cannot refuse to order disclosure of documents in appropriate circumstances if it is not informed which documents are now claimed to constitute Cabinet confidences. In short, since information identifying documents has already been included in lists of documents disclosed by affidavits, the purpose of section 39 cannot be served unless the Court knows which documents are included in the Clerk’s certificate.

In Puddister Trading Co. et al. v. Canada et al.,[18] a recent case dealing with somewhat similar circumstances, the Crown had included in its list of privileged documents, in an affidavit of documents under Rule 448, an entry in the following terms:

5. Documents subject to a confidence of the Queen’s Privy Council of Canada and in respect of which a certificate will be filed pursuant to s. 39 of the Canada Evidence Act.

The documents referred to in item 5 were not described, but the certificate mentioned in that item was filed and provided to plaintiffs’ counsel just before the trial was to resume, following a recess after the first three days of trial. The certificate appears to have been drawn in the same form as that filed in this case, with a schedule “A” listing documents only by the generic descriptions of paragraphs within subsection 39(2) and without any other identifying information referable to any documents or list. In that case, my colleague Madam Justice Simpson said, in part [at pages 95-96]:

… even if the documents for which privilege is claimed had been properly produced in the affidavit on production, the privilege would not have been sustained at trial because it is my view that the Certificate is of no force and effect. This is so because the documents it lists simply cannot be identified. Had the documents described in the text of Schedule “A” to the Certificate in fact tracked the listing in the affidavit of documents, I would have upheld the Certificate, even though on its face it does not give a source for the document numbers it uses. However, when no source reference is given in the Certificate and when the 14 document references in fact have no identifiable source in any of the materials filed in court, the Certificate cannot stand because it is meaningless.

… I am unable to conclude that the Certificate in this case makes any assertion at all because the documents containing the information for which confidence is asserted are unknown.

In the result, Simpson, J. ordered production of documents sought by the plaintiffs since the claim to executive privilege failed.

In part the issues in Puddister were similar to some in this case, that is in so far as the certificate filed pursuant to section 39 did not identify the documents certified with any reference to any information before the Court. It is the only case discovered that appears to deal with the sufficiency of a certificate filed under section 39 as it relates to an affidavit of documents filed under the current Rule 448, which provides for full disclosure.

At the hearing of the motion now before the Court counsel for the Crown confirmed, as had been indicated in the written submissions, that in the circumstances of this case advice would be provided to plaintiffs to identify, with reference to earlier lists of documents, which ones are included under the certificate filed December 16, 1994. In my view that would be appropriate. It would meet the spirit of the order requiring documents listed in earlier affidavits to be claimed pursuant to section 39 by filing of an appropriate certificate. I consider the terms of that order are met when the certificate filed is supplemented by counsel’s advice identifying the documents earlier listed which are covered by the certificate. That would also meet what I perceive to be the Crown’s obligations under the Rules now providing for document discovery by full disclosure of relevant documents while providing a realistic means of exercising its discretion to object to the release of any relevant document on the ground it contains information constituting a confidence of the Queen’s Privy Council under section 39 of the Act.

In sum, my opinion is that in the circumstances of this case, where documents have previously been listed in an affidavit of documents, with the usual minimum descriptive detail, even though the documents themselves or copies have not been produced to the plaintiffs, and the defendants now seek to certify some of the documents previously listed as constituting confidences of Cabinet pursuant to section 39 of the Act, that certificate, in addition to tracking the language of subsection 39(2), should include, or counsel must arrange to provide, sufficient information to identify the particular documents claimed under the certificate.

If it were otherwise, in an era of full disclosure of relevant documents, the certificate would not provide information that would avoid the necessity for further exercise of the Crown’s claim to object to disclosure whenever a document is sought, or information about a document is sought in oral discovery, by the plaintiff in this litigation. If it is sought, and objected to, the Crown with each objection will in effect identify a document it claims not to be required to disclose under section 39 of the Act. Ultimately identification of all such documents would be acquired by tenacious counsel, but in two steps, wasting time and energy that could be put to better use.

I conclude that in this case, the certificate filed, by failing to identify the documents included in the certificate with reference to documents included in earlier lists of affidavits, was insufficient to meet the requirements of an objection under section 39. That deficiency could be addressed by the defendants providing information identifying the documents earlier listed which are now claimed as confidences of the Privy Council under section 39.

S. 39 in Relation to Documents Produced

The final matter of serious difference between the parties relates to the application of section 39, and its effects, in relation to documents which have already been produced to the plaintiffs. As we have seen, after a number of documents had been produced by the defendants, so that copies were in the hands of the plaintiffs, it appeared to the defendants that certain of them should not have been disclosed, but rather should have been certified under section 39 of the Act and objection made to their disclosure.

The position initially adopted by the Crown in relation to these documents was that once they had been disclosed by production to the plaintiffs the documents would not be claimed under a section 39 certificate. Counsel, however, would instruct the defendants’ deponents in examination for discovery not to answer any question about any of these documents since it was a document that could have been subject to being objected to under section 39. The document so identified in discovery might speak for itself, but no information would be provided in response to any question arising in relation to such a document. That position was adopted by counsel for the defendants and their deponents declined to answer questions in discovery about any document so identified.

A few days before the hearing of this motion counsel for the Crown advised that its position had changed. It now planned, while continuing to object and to decline to answer questions in discovery about documents that might have been, but were not yet, the subject of a certificate under section 39, to file one or more additional certificates pursuant to that provision, certifying the documents in question as constituting confidences of the Queen’s Privy Council for Canada. Moreover, it sought return from the plaintiffs of copies of documents once they were included as documents in a certificate filed pursuant to section 39. I note that the documents now to be certified would have to be identified if they were to be recovered, as the defendants here seek to do.

The plaintiffs take the position that once documents have been produced to them it is too late to claim that they constitute Cabinet confidences under section 39. That section, it is said, permits the Crown to claim immunity from disclosure, but the claim must be timely and it must be made before there is disclosure in fact. By analogy once the horse is out of the barn, it is too late to prevent its escape by closing the door. Once a confidence is disclosed, it is said the purpose of section 39 is frustrated, that purpose being to protect confidences of Cabinet from disclosure. The plaintiffs rely in particular upon Best Cleaners and Contractors Ltd. v. The Queen,[19] which the defendants urge is distinguishable, or if not, it was wrongly decided. Plaintiffs also refer to Leeds et al. v. Alberta (Minister of Environment) et al.[20]

In Best Cleaners, Mr. Justice Mahoney for the Court of Appeal majority held, inter alia, that a certificate filed on the eve of trial by the Clerk of the Privy Council, pursuant to then subsection 36.3(1) [R.S.C. 1970, c. E-10 (as enacted by S.C. 1980-81-82-83, c. 111, s. 4)], now subsection 39(1), of the Act, in relation to documents and information freely disclosed by the Crown in discovery, in the circumstances of that case, was not a bar to admission in evidence of documents if they had been produced on discovery, nor was it a bar to evidence from oral discovery about the documents. In the course of his decision Mahoney J.A. commented as follows:[21]

Section 36.3 is predicated on the notion that Her Majesty’s Privy Council for Canada will be astute in not divulging information it deems confidential and that it requires a statutory right to maintain confidentiality only in the face of “a court, person or other body with jurisdiction to compel the production of information”. On a fair reading of the section, it is the compulsion of the disclosure of the information that is protected against, not the receipt of the information in evidence if it is available otherwise than by exercise of the tribunal’s power to compel its production.

There is a large measure of unreality in the proposition that the filing of a certificate has the effect of undoing the disclosure of information already lawfully disclosed to the opposing party in a legal proceeding. Everyone with a legitimate interest in the information has it except the Court. Maintenance of confidentiality against only the Court in such a case implies a Parliamentary intention to permit the filing of a certificate to obstruct the administration of justice while serving no apparent legitimate purpose. No such intention is expressed by Parliament; to infer it is repugnant.

In Leeds, Associate Chief Justice Miller of the Alberta Court of Queen’s Bench followed the decision of Mahoney J.A. in Best Cleaners, in circumstances where the Crown in right of Alberta had voluntarily and pursuant to an order disclosed a large number of documents, including Cabinet documents, and had not objected to discovery upon them. Shortly before trial the Crown brought a motion for leave to remove many of the documents on the ground they were irrelevant to the issues or were covered by a public interest immunity. The case was not concerned with section 39 of the Act or any provincial statutory equivalent.

Both those cases, in a general way, support the principle that once the Crown discloses documents it can no longer raise a claim to public interest immunity to have them excluded from evidence. Nevertheless, I believe that is too broad a reading of the decision in Best Cleaners when one considers the text of section 39. In light of the text, which includes no reference to the time when an objection is to be made by filing a certificate, in my opinion Best Cleaners must be read as related to its facts including the prior disclosure in oral discovery of information subsequently certified under section 39, and including the filing of the certificate late on the day before trial was set to commence.

In my opinion subsection 39(1) is clear in its intent: a court or other body with jurisdiction to compel the production of information shall refuse to order disclosure of information, without itself examining it, where disclosure is objected to and the information is certified in writing, by a minister or the Clerk of the Privy Council for Canada. The rest of section 39 sets out definitions and descriptions of documents that may contain such information and restricts the application of subsection 39(1) to information that has been in existence only for a limited period. As we have seen in Best Cleaners Mahoney J.A., referring to the same statutory provision, but then section 36.3, emphasized that “it is the compulsion of the disclosure of the information that is protected against, not the receipt of the information in evidence if it is available otherwise than by exercise of the tribunal’s power to compel its production”.[22] In Canadian Assn. of Regulated Importers v. Canada (Attorney General)[23] MacGuigan J.A., describes the purpose of section 39 as follows:

The wording of section 39 of the Act seems to me to be clear enough: an objection to the disclosure of information by a minister of the Crown or the Clerk of the Privy Council is determinative of the matter where the minister or the Clerk certifies in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada; in that case disclosure of the information is to be denied without further examination.

The section does not create confidences of the Queen’s Privy Council. It does not direct how these are to be protected, except to preclude this Court or any other from ordering disclosure of information once a certificate is issued and filed, whenever that may be done in relation to the Court’s own processes for discovery or for the taking of evidence. In my opinion section 39 may be applied at any stage and, aside from the exceptional circumstances of Best Cleaners, once a certificate in compliance with the Act and the Court’s Rules is filed, the Court, and the parties to an action, may not thereafter examine the information that is certified. Here the certificate filed, subject to provision of information identifying documents as they were already listed in affidavits of documents, was effective and the Court may not order production or examination of the 37 documents certified, once it can identify those. None of those have been produced and the Crown’s deponents have not answered questions about them in discovery. Similarly, documents already produced may yet be subject to inclusion in a further section 39 certificate or certificates. Any certificate filed hereafter, which identifies the documents, with reference to descriptive numbers for information already assigned to them, will be given effect by the Court.

In argument, it was urged that this permits the Crown to apply section 39 with retroactive effect. In my view that is not the case. A certificate, when filed, has effect only from and after the date it is filed. If a document is produced voluntarily by the Crown, that does not limit the Crown’s capacity to change its mind and object under section 39 to disclosure of Cabinet confidences.

That, however, provides no protection against ordered disclosure until a certificate, in compliance with the Act, is filed. Once documents are included in an affidavit of documents and not claimed as privileged, or if claimed as privileged under section 39, but not claimed within a certificate filed in accord with that section, the plaintiffs are entitled under the Rules to examine the defendants’ deponents in relation to those documents.

Of course, in an examination for discovery there may be objection or refusal to answer questions. If there is objection or refusal by representatives of the defendants on grounds that to answer a question in relation to a document, or to answer another question, would disclose a confidence of the Queen’s Privy Council for Canada and the document in question or the information sought is not yet included in a certificate under section 39, then completion and filing of a certificate should be done as a matter of course without unreasonable delay. In I.L.W.U. v. Canada,[24] Mr. Justice McNair set out a process for certification by the Clerk of the Privy Council of objections to disclosure of information constituting Cabinet confidences sought by questions in discovery. That seems to me appropriate here, subject to establishment of a process, after consultation with counsel, for a necessary certificate to be filed without unreasonable delay.

A similar process with a time established for filing of a certificate or certificates may be useful, upon consultation with counsel, in relation to any proposed filing of section 39 certificates in regard to

a) documents produced to plaintiffs prior to December 1994;

b) documents that, after December 1994 were added to the defendants’ production process, but may or may not have been included in supplementary affidavits of documents filed in mid-December 1995, either as producible documents or as documents for which privilege is claimed under section 39 of the Act; or

c) documents processed in the defendants’ ongoing process after mid-December 1995.

Conclusion

In the result, the plaintiffs’ motion is allowed in part only. The certificate filed on December 16, 1994, is deficient in its failure to provide any identifying reference, by number or descriptive detail, between the documents as listed in the certificate and those listed in affidavits of documents previously filed. That deficiency may be remedied by provision of information to counsel for the plaintiffs and to the court that will identify the documents now certified. The deficiency arises because, without identifying the documents certified by reference to document descriptions or numbers previously assigned in this action, the Court is in no position to refuse to order disclosure of documents previously listed, unless they be privileged on some other ground. The certificate otherwise meets the requirements of section 39 and of the Court’s Rules. If the information identifying the 37 documents certified, by reference to the documents included in earlier lists, is not provided to counsel for the parties within such reasonable time as counsel may agree, or failing agreement as may be set by this Court, then defendants shall produce the documents to the plaintiffs forthwith.

In my opinion a certificate made in accord with section 39 of the Act may be filed at any time, before or after disclosure of documents by affidavits of documents or production of the documents themselves, and before questions about them are answered in oral discovery. Aside from very exceptional circumstances such as those in Best Cleaners, whenever a certificate is filed it effectively precludes the Court thereafter from examining the information or compelling its disclosure, but only a certificate in accord with section 39 can preclude the Court from ordering disclosure by production of documents or by answering questions in discovery. Only a certificate that identifies the documents to the Court, and the parties, can be expected to be effective in having the Court refuse to order disclosure.

The defendants’ representatives are directed to answer questions asked in discovery so far as the answers do not reveal information constituting a confidence of the Queen’s Privy Council for Canada. If the answers are deemed to require revelation of such information any objection that is not related to a document already certified can only properly be confirmed by inclusion in a certificate made in accord with section 39 of the Act, and filed within such reasonable time after the objection or refusal is made as the parties may agree upon or this Court by order will direct.

It may be, as the defendants say, that documents which, after their production, are included in a section 39 certificate are of no use to the plaintiffs for they are subject to an implied undertaking not to use them for any reason other than this litigation, and once certified under section 39 they may not be ordered to be examined or disclosed. Nevertheless, section 39 itself makes no provisions for the return of documents that have been produced. The Court is not disposed to order that documents, once they are produced, be returned to the defendants if they are included under a section 39 certificate. As noted, all documents produced are subject to an implied undertaking restricting their use other than for this action. They are also subject to a confidentiality order earlier issued in these proceedings. The parties may agree upon return of such documents now or after trial.

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