Gerard Blais (Applicant)
v.
Honourable Robert Andras (Respondent)
Court of Appeal, Thurlow, Gibson and Heald
JJ.—Ottawa, August 30 and 31, 1972.
Crown—Evidence—Crown documents, production of in
Court—Claim of privilege—Federal Court Act, section 41—
Whether need for candour outweighs public interest in
administration of justice.
Following a report by the Superintendent of Bankruptcy
on the conduct of a licensed trustee in bankruptcy the
Minister restricted the trustee's licence to the administration
of estates then in his hands. The trustee attacked that
restriction by a proceeding under section 28 of the Federal
Court Act. In that proceeding the Minister claimed privilege
from production under section 41 of the Federal Court Act
of the report made by the Superintendent on the ground that
if such reports were made public the candour of such
communications would be prejudiced and confidential
sources of information would dry up. The report, which was
examined by the Court, contained nothing which could
adversely affect any public interest.
Held, the report must be produced. Neither the public
interest in securing candour and completeness in such
reports nor in protecting confidential sources of information
outweighed the public interest in the administration of jus
tice, viz, in this case to ensure that the trustee has access to
what has been alleged against him to afford him a proper
opportunity of challenging it so that justice may manifestly
appear to be done.
Conway v. Rimmer [1968] 2 W.L.R. 998; R. v. Lewes
Justices [1971] 2 All E.R. 1156, approved.
MOTION for judicial review.
Pierre Lamontagne for applicant.
Robert Cousineau for respondent.
The judgment of the Court was delivered by
THURLOW J.—This is an application for
determination of a claim by the respondent for
privilege from production in these proceedings
of a report made on September 8, 1967, by the
Superintendent of Bankruptcy addressed to the
Honourable John Turner, then Registrar Gener
al of Canada and as such the Minister respon
sible for the administration of the Bankruptcy
Act. It is common ground that the report was
made pursuant to what is now section 5(8) of
the Bankruptcy Act, that it dealt with the con
duct of the affairs of a bankrupt estate by the
applicant as trustee, and that in it the Superin
tendent recommended that the licence of the
applicant to act as a trustee in bankruptcy be
cancelled. As a result of the investigation which
led to the report, the report itself and certain
further investigations carried out thereafter the
applicant's licence for the year 1968 to act as a
trustee in bankruptcy was, with his concur
rence, restricted to dealing with estates then
under his administration and the same restric
tion has since been incorporated in his licence
for each of the years 1969, 1970, 1971 and
1972.
Since the imposition of the restriction the
applicant has endeavoured on several occasions
to have the restriction removed, but without
success. In the latter part of 1971 the refusal of
the then Minister to remove it led to a proceed
ing in this Court under section 28 of the Federal
Court Act, which was settled and withdrawn
earlier this year. (Vide Blais v. Basford [1972]
F.C. 151.) Thereafter written representations
were made by the applicant and he and his
solicitor appeared before the present Minister
and made oral representations but the Minister
by a letter dated June 9, 1972, upheld the
restriction and declined to remove it. It is that
decision which is attacked in this proceeding.
On the hearing of the present motion the
materiality in the present proceeding of the
report in question was the subject of some
argument by counsel for the Minister but to my
mind that point is not before us on this motion.
The report in question was included by agree
ment of counsel in the list of documents set out
in the order for directions made on July 20,
1972 settling the material that would constitute
the case for decision and by that order the
respondent was required to file the report in the
Court Registry on or before July 28, 1972,
unless on or before that date he objected there
to by affidavit under section 41 of the Federal
Court Act. Reference was made by counsel to
the grounds of attack set out in the applicant's
notice of motion under section 28, but the rules
do not require that grounds of attack be set out
in the notice and it has not been the practice of
this Court to limit the grounds of the review
under section 28 to those set out in the notice
but to leave it to the applicant to state the
grounds for his application in his memorandum
of argument.
Section 41 of the Federal Court Act reads as
follows:
41. (1) Subject to the provisions of any other Act and to
subsection (2), when a Minister of the Crown certifies to
any court by affidavit that a document belongs to a class or
contains information which on grounds of a public interest
specified in the affidavit should be withheld from produc
tion and discovery, the court may examine the document
and order its production and discovery to the parties, sub
ject to such restrictions or conditions as it deems appropri
ate, if it concludes in the circumstances of the case that the
public interest in the proper administration of justice out
weighs in importance the public interest specified in the
affidavit.
(2) When a Minister of the Crown certifies to any court
by affidavit that the production or discovery of a document
or its contents would be injurious to international relations,
national defence or security, or to federal-provincial rela
tions, or that it would disclose a confidence of the Queen's
Privy Council for Canada, discovery and production shall
be refused without any examination of the document by the
court.
Within the time limited by the order for direc
tions an affidavit of the Minister was filed read
ing as follows:
I, ROBERT KNIGHT ANDRAS, of the City of Ottawa,
in the Province of Ontario, make oath and say as follows:
1. I am the Minister of Consumer and Corporate
Affairs, in the Government of Canada and, as such, I
have knowledge of the facts hereinafter deposed.
2. I am informed that Appellant has requested and this
Court has ordered, subject to the filing of an affidavit by
me, that a report of the Superintendent of Bankruptcy,
addressed to the Honourable John Turner, then Registrar
General of Canada, dated September 8, 1967, be pro
duced before this Court.
3. I have read this report and I certify that it forms part
of a class of documents, the production of which would
be contrary to the public interest, and therefore should be
withheld from production and discovery, namely com
munications between the Superintendent of Bankruptcy
and the Minister concerning the administration of the
Bankruptcy Act, including the character, reputation, fit
ness and conduct of trustees; the candour and complete
ness of the information, comments and remarks contained
in such communications would be prejudiced, if they
were liable to be made public and I object to their
production accordingly.
4. I further object to the production of such reports of
the Superintendent of Bankruptcy of an investigation into
the character, fitness, reputation or conduct of trustees,
on the ground that such reports are generally based on
information of a confidential nature obtained by the
Superintendent from many sources, both inside and out
side his office, including police sources, and if such
information and sources are liable to disclosure, it would,
in my view, make it difficult for the Superintendent to
obtain such information and would seriously hamper him
in the performance of his duties.
5. The Appellant in this case was fully informed of the
reasons for the action taken with respect to his licence in
a letter, dated May 10, 1972, a copy of which is annexed
hereto, from the Assistant Deputy Minister of the Depart
ment of Consumer and Corporate Affairs to his counsel
and was given full opportunity to reply in writing and also
at a meeting in my office, which in fact took place on
May 25th, 1972, in the presence of the said counsel.
It will be observed that the class of docu
ments for which privilege is claimed both in
paragraphs 3 and 4 of this affidavit, and of
which the report in question is said to form
part, is defined as being:
.. communications between the Superintendent of Bank
ruptcy concerning the administration of the Bankruptcy
Act, including the character, reputation, fitness and conduct
of trustees".
and that the reasons put forth for privilege for
this whole class are:
(1) that the candour and completeness of the
information, comments and remarks con
tained in such communications would be pre
judiced, if they were liable to be made public,
and
(2) that the reports of an investigation into
the character, fitness, reputation or conduct
of trustees are generally based on information
of a confidential nature obtained from many
sources and if such information and sources
are liable to disclosure it would be difficult
for the Superintendent to obtain such infor
mation and would seriously hamper him in
the performance of his duties.
After hearing argument by counsel for the Min
ister both as to why the claim for privilege
should be upheld and as to why we should not
examine the report in question for the purpose
of determining the question of privilege the
Court was of the opinion that it should exercise
its authority under section 41(1) of the Federal
Court Act to examine the report and it was
thereupon produced by counsel for the Minister
and examined by the Court. In my view there is
nothing in it the disclosure of which could con
ceivably affect adversely any public interest.
Nor did counsel contend that there was any
thing of the sort in it. Nor is there in it anything
which appears to be confidential or to disclose
any source of confidential information. Thus
the only possible basis, as I see it, for withhold
ing the report from production is that the whole
of the defined class, of which it forms part,
should be protected for the reasons stated in the
affidavit notwithstanding that no harm to any
public interest will be caused by disclosure of
the particular document. It is therefore the
public interest to be served by the protection of
the whole class that is to be weighed by the
Court pursuant to section 41 against the public
interest in the due administration of justice in
the applicant's case.
In my view, with due respect for the contrary
view expressed by the Minister's affidavit, nei
ther the public interest in securing candour and
completeness of information and comments in
all such communications nor the public interest
in protecting confidential information and its
sources, which may at times appear in some of
such communications, is of sufficient impor
tance to warrant protecting from production the
whole class of such communications as defined
by the affidavit, without regard to whether the
content of the particular communication is such
as to require such protection. There may be
communications between the Superintendent
and the Minister which do require protection
but the definition is a broad one embracing
every sort of communication on a very broadly
defined subject. It may be important to protect
such communications on questions of general
policy for the purpose of ensuring candour and
completeness of information and comment but I
find it difficult to conceive of the report of a
Superintendent in Bankruptcy made in the
course of his statutory duties on the conduct by
a trustee of the affairs of a bankrupt estate
being less candid or complete by reason of his
knowing that his report might be subject to
disclosure. Moreover, whenever confidential
information or its sources are likely to be
endangered by production it is open to the
Minister to claim privilege in respect of the
contents of the particular document on that
basis.
In Conway v. Rimmer [1968] 2 W.L.R. 998 at
p. 1051, Lord Upjohn said of an objection on
similar grounds:
Then within the "class" cases we come to the "candour"
cases pure and simple. For my part I find it difficult to
justify this when those in other walks of life which give rise
to equally important matters of confidence in relation to
security and personnel matters as in the public service can
claim no such privilege. Here let me turn to police reports
which play some part in the last document before your
Lordships for which privilege is claimed. No one can doubt
that a police report dealing with a suspected crime or with
matters which might be of conceivable use to the under
world must be privileged, but for my part I think privilege
should be claimed under the "contents" side if in fact the
documents could be of the slightest use to the
underworld... .
and in R. v. Lewes Justices [1971] 2 All E.R.
1126 at p. 1130, Lord Parker, C.J., said:
The first thing that is clear from Conway v. Rimmer, and I I
do not propose to read it or passages from it in any detail, is
that what was always looked on originally as the sanctity of
the certificate of the Minister has gone. Secondly, it is clear
that privilege can no longer be claimed alone, as it were, on
the grounds so often put forward in these cases that unless
privilege is upheld, no one will give a frank, honest and full
reply to a question, or make a frank report. Such cases have
conveniently from time to time been referred to as "can-
dour" cases. Unless privilege is claimed, it is said that those
responsible for making reports, minutes and giving informa
tion will not be candid and frank in their replies.
Further, in Conway v. Rimmer it was decided that in each
case it was necessary to balance rival public interests, the
public interest that might result from disclosure and the
public interest involved in denying a litigant material evi
dence, whether in civil or criminal proceedings. In the
present case this evidence consists of the very document on
which his case is based.
Further on on the same page the learned Judge
said:
The second point taken is that this claim for privilege is
really within the "candour" class of case. It is suggested
that the claim is really this, that unless the police are
protected, they will not give honest and frank information.
It is true that their Lordships in all the speeches in the
House of Lords thought little of the claim for privilege
based on this type of case, the "candour" case. The Attor-
ney-General, in answer to one of my Lords in the course of
argument, said that the claim for privilege, to put it general
ly, on the grounds of candour or lack of candour had gone. I
am by no means prepared to go to that length, although I
think that it is clear from all the speeches of their Lordships
that an argument based on candour alone had very little
validity.
In the present case, in my view, the public
interest in the proper administration of justice
outweighs in importance any public interests
that might be protected by upholding the claim
for privilege for the whole class. The report in
question is not a communication dealing with a
question of policy or administration of the
Bankruptcy Act in general but a report made
under a particular provision of that Act, that is
to say section 5(8), following an investigation
into the applicant's conduct of the affairs of a
bankrupt estate. The Superintendent's letter of
the same date to the applicant indicates that the
report is being made and that it recommends the
cancellation of the applicant's licence and the
order of the Minister made on May 2, 1968,
recites the existence of the report and the
recommendation. This report was thus, to put it
at its lowest, involved in the original decision to
restrict the applicant's licence which the deci
sion now under attack holds to have been
appropriate in the circumstances. It seems to
me, therefore, that the need of the applicant for
discovery of such a document for the purposes
of the present proceeding is apparent in the
circumstances and that only a strong public
interest to be protected by withholding it from
production, which in my view that put forward
in the claim for privilege is not, could avail to
outweigh the obvious public interest in the
proper administration of justice in the case both
from the point of view of ensuring that the
applicant has had access to whatever has been
alleged against him and has been afforded a
proper opportunity to challenge the validity of
the proceeding before and decision of the Min
ister and from the point of view of justice
manifestly appearing to have been done in his
case.
I should add that in my opinion paragraph 5
of the Minister's affidavit, which appears to
have been inserted for the purpose of persuad
ing the Court that there was no sufficient need
of the applicant for discovery of the report to
outweigh the public interest in respect of which
the privilege was claimed cannot conclude the
matter as against the applicant. The paragraph
besides being in my opinion ambiguous, as to
whose action is referred to—there being at least
three possibilities—does not purport to state
that the appellant was fully informed by the
letter of May 10, 1972, of what was alleged
against him in the report in question and in
effect seeks to preclude the applicant from
seeking a review of what has brought about the
decision under attack by a statement that he
was fully informed by letter of the matters
considered. In my view such a statement could
scarcely be expected to conclude the matter
unless the information referred to could be
shown to have included everything contained in
the report itself.
I would order production of the report in
question.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.