A-167-87
Solicitor General of Canada (Appellant)
(Respondent)
v.
Neil Anderson Davidson (Respondent) (Appli-
cant)
INDEXED AS: DAVIDSON V. CANADA (SOLICITOR GENERAL)
Court of Appeal, Mahoney, Stone and MacGuigan
JJ.A.—Vancouver, January 26; Ottawa, February
6, 1989.
Privacy — Access to personal information in RCMP files
refused — Institutional head bound by grounds originally
stated in notice of refusal, with no possibility of later amend
ment — Canada Evidence Act s. 36.1 irrelevant to disclosure
of information to person not "court, person or body with
jurisdiction to compel production of information" — Common
law rule against disclosure of identity of police informers not
abrogated by Act s. 22(1).
Constitutional law — Charter of Rights — Equality rights
— Taxation of costs where successful party lawyer acting on
own behalf — Concept of equality before law requiring all
self-represented litigants be treated on same basis.
Practice — Costs — Award of costs where successful party
lawyer acting on own behalf — Treated as self-represented
litigant for taxation of costs — To be treated otherwise
offensive to concept of equality before law.
Following an investigation, which did not lead to the laying
of criminal charges, into alleged illegal activities by him as
Mayor of Vernon, British Columbia, the respondent sought
access to any personal information about him contained in
operational case records of the RCMP. This request was denied
under subsection 22(2) of the Privacy Act—the existence of an
arrangement between the RCMP and British Columbia not to
disclose personal information acquired while performing police
services for the Province. It was discovered, on the eve of the
hearing of the application for review of the dismissal of the
complaint to the Privacy Commissioner, that no such arrange
ment existed at the relevant time.
This is an appeal from the Trial Judge's decision allowing the
application and ordering disclosure with the deletions necessary
to protect the identity of the police informer(s) and a cross-
appeal from the restriction to the disclosure. The respondent
being a lawyer acting on his own behalf, the parties also seek
directions as to taxation of costs.
Held, the appeal and cross-appeal should be dismissed with
taxation of costs on the basis that the respondent is a self-repre
sented litigant.
The institutional head was bound by the grounds originally
stated in the notice of refusal, with no possibility of subsequent
amendment. To permit new grounds of exemption to be
advanced at trial would deny the complainant the benefit of the
Privacy Commissioner's investigative procedures and assist
ance. Sections 48 and 49 of the Act, which allow the Court to
make such order as it deems appropriate, were not meant to
allow the Court to send back to the Commissioner a matter he
had just finished investigating.
Section 36.1 of the Canada Evidence Act, which allows the
Government to object to the disclosure of information before a
court, person or body with jurisdiction to compel the production
of information, does not apply in the present case. Neither the
circumstances nor the recipient of the information herein are
covered by that section.
With respect to the cross-appeal, in ordering disclosure sub
ject to deletions to protect the identity of the police informer(s),
the Trial Judge arrived at the right result for the wrong reason.
The substantive common law rule against disclosure of the
identity of police informers remains intact and is the basis
justifying, indeed imposing, the restriction upon the disclosure.
It was neither codified nor abrogated by subsection 22(1) of the
Act. The restriction was, therefore, not an exercise of the
Judge's discretionary power under section 48; it was required
by law.
For the purposes of taxation, the respondent should be
considered as any successful self-represented litigant. The con
cept of equality before the law as protected by section 15 of the
Charter requires that all self-represented litigants be treated
the same, even though some may be barristers and solicitors.
The respondent is therefore entitled to all costs normally
awarded to a successful self-represented party, and not to those
expressed to be for services of solicitors and counsel (Tariff B,
subsection 2(1)).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.1 (as
added by S.C. 1980-81-82-83, c. Ill, s. 4).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 15.
Code of Civil Procedure, R.S.Q., c. C-25, art. 308.
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II, ss.
2, 19(1), 22(2), 29(1)(b), 31, 33(2), 34, 35, 41, 42, 45,
48, 49.
CASES JUDICIALLY CONSIDERED
APPLIED:
Smith, Kline & French Laboratories Ltd. v. Canada
(Attorney General), [1987] 2 F.C. 359 (C.A.); Bisaillon
v. Keable, [1983] 2 S.C.R. 60; Ternette v. Solicitor
General of Canada, [1984] 2 F.C. 486 (T.D.).
CONSIDERED:
Rentokil Group Ltd. v. Barrigar & Oyen (1983), 75
C.P.R. (2d) 10 (F.C.T.D.); McBeth v. Governors of
Dalhousie College & University (1986), 26 D.L.R. (4th)
321 (N.S.C.A.).
REFERRED TO:
Information Commissioner (Canada) v. Canada (Minis-
ter of Employment and Immigration), [1986] 3 F.C. 63;
(1986), 5 F.T.R. 287 (T.D.).
COUNSEL:
H. J. Wruck and Jacques Courteau for appel
lant (respondent).
Neil A. Davidson, Q.C. on his own behalf.
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Davidson & Company, Vernon, British
Columbia, for respondent (applicant).
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: I have had the advantage of
reading in draft the reasons for judgment of Mr.
Justice MacGuigan herein. I agree with them and
with the disposition he proposes of the appeal and
cross-appeal. I will deal only with the question as
to taxation of costs on which the parties sought
directions.
The respondent is a barrister and solicitor acting
on his own behalf. He was awarded costs in the
Trial Division and asks for his costs here. He says
he is entitled on taxation to amounts allowed by
subsection 2(1) of Tariff B [Federal Court Rules,
C.R.C., c. 663] "For services of solicitors and
counsel", as well as disbursements under subsec
tion 2(2).
The only reported decision dealing with this
subject appears to be that of Cattanach J., of the
Trial Division, who stated, in Rentokil Group Ltd.
v. Barrigar & Oyen (1983), 75 C.P.R. (2d) 10
(F.C.T.D.), at page 20:
For the foregoing reasons the appeal is dismissed. The firm
of solicitors, which was properly named as the respondent
appeared on its own behalf and, accordingly, should not be
entitled to costs as for services performed on behalf of a client.
The costs of the respondent shall therefore be limited to
disbursements laid out to the Registrar of Trade Marks on the
request for the notice and for fees paid to the court registry.
That accurately stated and applied the practice in
this Court.
However, the decision of the Nova Scotia Court
of Appeal in McBeth v. Governors of Dalhousie
College & University (1986), 26 D.L.R. (4th) 321,
at page 328 ff, requires a reconsideration of the
practice. That case concerned a successful litigant
who was not a barrister and solicitor. The Trial
Judge had denied costs except for disbursements.
The Court of Appeal concluded that the practice
was contrary to section 15 of the Canadian Chart
er of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)] and not saved by section
1. The nub of its reasoning is set out at page 329.
... the common law practice of denying costs to a litigant who
appears in person when such costs follow the cause in the case
of those litigants who are represented by counsel is clearly
discriminatory. The treatment of the litigant who appears in
person is uneven. The litigant is denied costs which are avail
able to the litigant with counsel. It may in the long run
discriminate against the litigant to the extent that he or she
would hesitate to take a matter to court without counsel.
The actual award of costs was stated as follows, at
page 330:
... I direct that the appellant shall have her costs in this Court
and in the court below to be taxed on a party-and-party basis in
accordance with the tariff as to costs and fees. It may well be
that the taxing master will have difficulty in allowing certain
costs that would be peculiar to legal counsel. That, however, is
a matter that will be determined by the taxing master and
perhaps subsequently by the courts.
Three distinct categories of taxable costs appear to
have been recognized: (1) disbursements, to which
a successful self-represented litigant is ordinarily
entitled even at common law; (2) "costs that would
be peculiar to legal counsel", which, evidently,
ought not be allowed a successful self-represented
lay litigant; and (3) costs, neither disbursements
nor "peculiar to legal counsel", which ought to be
allowed that litigant.
As I understand that, the present practice of this
Court as to self-represented lay litigants is not
called into question since all of the tariff items
under subsection 2(1) of Tariff B are expressed to
be "For services of solicitors and counsel". As
such, they seem to me, by definition, to be clearly
"peculiar to legal counsel". The only other costs
contemplated to be allowed are disbursements.
However, here, we do not have a layman but a
barrister and solicitor representing himself.
Section 15 of the Charter provides:
15. (I) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
This Court's basic approach to the interpretation
of that section was stated in Smith, Kline &
French Laboratories Ltd. v. Canada (Attorney
General), [1987] 2 F.C. 359 (C.A.), at page 368.
[Section 15] only proscribes discrimination amongst the mem
bers of categories which are themselves similar. Thus the issue,
for each case, will be to know which categories are permissible
in determining similarity of situation and which are not. It is
only in those cases where the categories themselves are not
permissible, where equals are not treated equally, that there
will be a breach of equality rights.
The issue here is whether a barrister and solicitor
who represents himself in litigation is most similar
in the context of section 15 to a self-represented
lay litigant or to a professionally represented
litigant.
In my opinion, that barrister and solicitor is
primarily a self-represented litigant and, for pur
poses of taxation of costs, is to be so treated. It
seems to me patently more offensive to the concept
of equality before the law to treat one self-repre
sented litigant differently from another only
because one is a barrister and solicitor than to
treat two self-represented litigants the same even
though one is a barrister and solicitor.
I would therefore direct that, in taxing his costs,
here and in the Trial Division, the respondent is
not entitled to costs under Tariff B, subsection
2(1).
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This is an appeal from a
decision of the Associate Chief Justice [[1987] 3
F.C. 15] relating to an application for review
under section 41 of the Privacy Act [S.C. 1980-81-
82-83, c. 111, Schedule II] ("the Act"). Following
newspaper reports that the Royal Canadian
Mounted Police ("RCMP") was conducting an
investigation into alleged illegal and unethical
activities by him as Mayor of the City of Vernon
in British Columbia, an investigation which never
led to the laying of any criminal charges, the
respondent sought access to any personal informa
tion about him contained in operational case
records of the RCMP. This request was denied in
a letter of December 9, 1983, signed by Chief
Superintendent P. E. J. Banning of the RCMP on
the ground specified in subsection 22(2) of the
Act, viz. the existence of an arrangement between
the RCMP and the Province of British Columbia
not to disclose any personal information acquired
while performing police services for the Province.
It was discovered by the appellant on the eve of the
trial hearing, and immediately disclosed, that no
such agreement not to disclose information existed
at the relevant time, and it was admitted by the
appellant both at trial and on this appeal that he
could not rely upon this ground of exemption.
In the meantime, after the initial refusal of his
request, the respondent filed a complaint with the
Privacy Commissioner ("the Commissioner"), who
conducted an investigation as required by para
graph 29(1)(b) of the Act and found that the
respondent's complaint was not justified. The
respondent subsequently brought this section 41
application for review.
On the principal issue before him the learned
Trial Judge held, following Strayer J. in Ternette
v. Solicitor General of Canada, [1984] 2 F.C. 486
(T.D.), at page 497, that the head of a government
institution is bound by the grounds initially assert
ed in the notice of refusal. In the words of Strayer
J.:
By paragraph 16(1)(b) of the Act the institution head is
obliged, if refusing access, to state the specific provision of the
Act on which the refusal is based. In my view it is fundamental
to the exercise of all subsequent remedies by the applicant that
the head be bound by the grounds he asserts in his notice of
refusal.
The Trial Judge also relied on his own decision on
the somewhat parallel legislation considered in
Information Commissioner (Canada) v. Canada
(Minister of Employment and Immigration),
[1986] 3 F.C. 63; (1986), 5 F.T.R. 287 (T.D.).
The appellant argued that the Trial Judge erred
in law in so holding and that he ought to have
allowed him to substitute the other grounds of
exemption contained in Chief Supt. Banning's sup
plementary affidavits of November 18 and Decem-
ber 20, 1985 (Appeal Book, at page 104 ff). In his
view no prejudice would thereby be suffered by the
respondent since the latter would have ample
notice of the new grounds relied upon by the
RCMP before having to file his written argument.
The appellant also emphasized the breadth of the
power he argued was possessed by the Trial Judge
under sections 48 and 49 to do full justice to the
respondent.
What this argument fails to take into account, it
seems to me, is the extent to which a person
seeking access to personal information is entitled
to rely upon the complaint mechanism provided
through the Commissioner. The complainant may
lodge a complaint about a denial of access to
personal information with the Commissioner
(paragraph 29(1)(b)), who will undertake an
investigation (section 31 ff.), which will allow both
the complainant and the head of the government
institution concerned to make representations
(subsection 33(2)) and which may involve the
Commissioner in entering government premises,
examining government records, and obtaining evi
dence under oath (section 34). Following the inves
tigation, the Commissioner may, in addition to
reporting to the complainant, make recommenda
tions to the head of the government institution,
including a request for notification of implementa
tion of recommendations (section 35).
It is no doubt true, as the appellant argued, that
a Federal Court trial judge, on a review of a
refusal of access by an institution head which, as
here, is upheld by the Commissioner, has adequate
powers of review over the decision of the institu
tion head, though it must be said that a judge
sitting in Court lacks the investigative staff and
flexibility of the Commissioner. More important, if
new grounds of exemption were allowed to be
introduced before the judge after the completion of
the Commissioner's investigation into wholly other
grounds, as is the issue in the case at bar, the
complainant would be denied entirely the benefit
of the Commissioner's procedures. He would thus
be cut down from two levels of protection to one.
No case could better illustrate than the present
one the advantages of a two-stage process, because
it was only at the second stage that the fatal flaw
in the initial ground was discovered.
But in my view the ultimate reason a complai
nant cannot be denied recourse to the Commis
sioner's stage is that, if the Commissioner finds in
his favour but the institution head remains obdu
rate, the complainant may have the benefit, in the
discretion of the Commissioner, of the Commis
sioner's appearing in Court in his stead or as a
supporting party (section 42).
The appellant contended that the Court's power,
in sections 48 and 49, to "make such other order as
the Court deems appropriate" would enable the
Court, following a substitution of grounds before
it, to send the matter back to the Commissioner at
that time for an investigation. But the Court's
power to review under section 41 is premised on a
complaint to and an investigation by the Commis
sioner. It would make no sense to send back to the
Commissioner a matter he had just finished inves
tigating. Such an "aspect doctrine" would be far
too tortuous to contemplate as Parliament's inten
tion, even if it could be made logically coherent.
The appellant's approach seems to be based
upon a conception of the Act as one in which the
government's right to withhold personal informa
tion is nicely balanced against the people's right to
personal information about themselves. But that is
not, in fact, the scheme of the Act. Section 2 states
the purpose of the Act only in terms of access to
personal information:
2. The purpose of this Act is to extend the present laws of
Canada that protect the privacy of individuals with respect to
personal information about themselves held by a government
institution and that provide individuals with a right of access to
such information.
Section 12 repeats the same thrust in a more
detailed manner. The exemptions are just that, and
must be interpreted strictly as exceptions to the
general purpose.
All of these considerations persuade me of the
Trial Judge's wisdom in holding that the institu
tional head was bound by the grounds originally
stated in the notice of refusal, with no possibility
of subsequent amendment.
The only possible exception to the generality of
this rule that appears to me is with respect to the
mandatory grounds of exemption contained in sub
section 19(1) ("the head of a government institu
tion shall refuse to disclose"). Paragraph 19(1)(c),
personal information "obtained in confidence from
. the government of a province", was relied on in
Chief Supt. Banning's supplementary affidavit of
November 18, 1985, but was later abandoned by
the appellant. It has therefore not been necessary
to consider whether an institution head should
have the right to add a mandatory ground of
exemption under subsection 19(1) and I express no
opinion on this point.
The appellant also argued that the Trial Judge
erred in law in holding that section 36.1 of the
Canada Evidence Act [R.S.C. 1970, c. E-10 (as
added by S.C. 1980-81-82-83, c. 111, s. 4)] is not
applicable to the case at bar. However, section
36.1 is in my view completely irrelevant. It would
allow the Government to "object to disclosure of
information before a court, person or body with
jurisdiction to compel the production of informa
tion". But there was no question here of the disclo
sure of information in such circumstances. No
information was disclosed or looked at in any way
in the Trial proceeding. All that could be said is
that the effect of the proceeding was to compel the
disclosure of information, but the recipient of the
information, the respondent, is not "a court,
person or body with jurisdiction to compel the
production of information". If, by an impossible
hypothesis, section 36.1 were somehow relevant, it
would in any event by superseded by section 45 of
the Privacy Act, as held by the Trial Judge.
The appellant's final submission, viz. that the
Trial Judge did not recognize that the common
law police informer secrecy rule continues to exist
despite the Privacy Act, is really an argument
against the Trial Judge's reasons, rather than
against his decision, since in his decision he
ordered that "the information be disclosed to the
applicant with such deletions as will ensure that
the identity of the informer(s) is not revealed." An
objection to the reasons for a decision, is not of
course a valid ground of appeal. To the extent
needed, this issue will be referred to again on the
cross-appeal.
The appeal must therefore be dismissed with
costs.
As to the cross-appeal, I am of the view that in
directing that the information to be provided to the
respondent (cross-appellant) be subject to dele
tions to ensure that the identity of the police
informer(s) is not revealed, the learned Trial
Judge arrived at the right result for the wrong
reason. In my opinion, subsection 22(1) of the Act
is no more a codification expressly and unequivo
cally abrogating the substantive common law rule
against disclosure of the identity of police inform
ers than was article 308 of the Code of Civil
Procedure [R.S.Q., c. C-25], considered in Bisail-
lon v. Keable, [1983] 2 S.C.R. 60, at page 93
where Beetz J. held that "the secrecy rule regard
ing police informers' identity ... is a legal rule of
public order by which [a] judge is bound." The
learned Trial Judge was, with respect, obliged by
law to make the direction that he did; it was not,
as he apprehended, a discretionary order author
ized under section 48 of the Act. The notion that a
person who was the subject of police investigation
but who was never charged may invoke an excep
tion to the rule in subsequent non-criminal pro
ceedings is simply untenable.
Given the deletions ordered by the Trial Judge,
the cross-appeal must therefore also be dismissed
with costs.
I agree with the reasons for judgment and the
disposition proposed by Mr. Justice Mahoney on
the taxation of costs issue.
STONE J.A.: I agree.
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.