T-582-01
2002 FCT 128
The Attorney General of Canada and Bruce Hartley (Applicants)
v.
The Information Commissioner of Canada (Respondent)
Indexed as: Canada (Attorney General) v. Canada (Information Commissioner) (T.D.)
Trial Division, McKeown J.--Toronto, November 19, 20, 2001; Ottawa, February 1, 2002.
Barristers and Solicitors -- Information Commissioner seeking removal of counsel with law firm, law firm itself as solicitors of record for Attorney General of Canada, individual applicants -- Applicants asking Commissioner to provide them with transcripts, other information under r. 317 -- Attorney General joining with witnesses in challenging conduct of investigation by Information Commissioner -- No appearance of impropriety in law firm continuing to act for all parties -- Right to choose own counsel important principle of law, quasi-constitutional principle -- In view of cost of litigation, waste ot time, money, resulting delay, solicitors removed only in clear cases.
Practice -- Parties -- Standing -- Information Commissioner seeking to have Attorney General of Canada struck as party to certain court files -- Attorney General having standing to assert claim for declaratory relief to protect public interest -- Also acting under authority to regulate, conduct all litigation for, against Crown or any department -- Seeking to have confidential information reviewed by Court to determine whether abuse of discretionary powers by Information Commissioner -- Attorney General having standing as of right to bring applications for judicial review.
The Information Commissioner sought the removal of certain Borden Ladner Gervais LLP (BLG) counsel, and the law firm itself as solicitors of record for the Attorney General of Canada and for the individual applicants in certain court files. He also sought to have the Attorney General of Canada struck as a party from certain files and a stay of proceedings in certain court files. In 29 applications for judicial review, the Attorney General of Canada and the individual applicants, as represented by counsel from BLG, have asked the Information Commissioner, under rule 317 of the Federal Court Rules, 1998, to provide them with transcripts and other information gathered during his private investigation. The individual applicants, all clients of BLG, appeared before the Information Commissioner's delegate pursuant to subpoenas issued by his office. As legal counsel for the individual witnesses, counsel from BLG signed an undertaking not to disclose confidential information to any third parties. The Attorney General of Canada was seeking to join with some of the witnesses in challenging the conduct of the investigation by the Information Commissioner. The latter had two concerns. First, how could the Attorney General of Canada give enlightened instructions to counsel to embark on applications for judicial review without knowing what is in the witnesses' transcripts? The second concern of the Information Commissioner related to disclosure of information. He brought two motions intended: (1) to remove BLG as solicitor of record in most of the applications and (2) to strike the Attorney General of Canada as an applicant in all applications.
Held, both motions should be dismissed.
(1) The Information Commissioner's role is not to order the disclosure of any records to the complainant, but to make recommendations to government institutions and to report to Parliament and to the complainant. As a fact-finder, the Commissioner is provided with the jurisdiction to investigate all complaints made under section 30 of the Access to Information Act. The overreaching obligation of the Commissioner to protect the private nature of his investigations accords fully with his role. The Attorney General of Canada should not be informed about the Information Commissioner's investigation but the confidentiality orders and undertakings by counsel adequately protected the Information Commissioner in this respect. The latter was concerned that, if counsel for the Attorney General could obtain information through representation of other clients, the Attorney General might benefit from that information. It was wrong to suggest that the Court should not condone a situation where BLG has come into the possession of information pursuant to its representation of various witnesses under the Access to Information Act while now simultaneously being retained by the Attorney General of Canada and these witnesses in the judicial review applications. There was no appearance of impropriety in BLG continuing to act for all parties. The right to choose one's own counsel is an important principle of law. It is also a quasi-constitutional principle, just as the Access to Information Act is quasi-constitutional legislation. All of the individual clients, with the exception of the Clerk of the Privy Council, provided written instructions that they wished BLG to continue representing them and the Attorney General of Canada in these applications for judicial review. Rule 2.04 of the Rules of Professional Conduct of the Law Society of Upper Canada which, according to the Information Commissioner, has been breached by the applicants, means that clients who enter a joint retainer with a solicitor can have no privileges between themselves in respect of information they communicate to the lawyer for the purpose of receiving legal advice and representation. There was no suggestion that counsel for the applicants have breached any obligations contained in the confidentiality orders which prohibit them from disclosing, to anyone other than other counsel, all information disclosed during the confidential testimony of each witness. In view of the expense of litigation, the waste of time and money and the substantial delay which can result therefrom, courts should issue orders removing solicitors only in clear cases. They are reluctant to interfere in the rights of a party to choose solicitors best suited to their needs and to assume responsibility for the strategy in any lawsuit.
(2) The Information Commissioner also sought to have the Attorney General of Canada struck as a party to certain court files, which raised the issue of standing. The Attorney General of Canada has standing to bring applications for judicial review as of right. He has standing to assert a claim for declaratory relief to protect the public interest. The Attorney General is also acting pursuant to his authority to regulate and conduct "all litigation for or against the Crown or any department". In this case, the Attorney General was not seeking access to confidential information but to have this information reviewed by a court in order to determine whether there has been an abuse of discretionary powers by the Information Commissioner. He was also seeking to have judicial review of the procedural role of the Information Commissioner. He had the right to bring these applications for judicial review.
statutes and regulations judicially
considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 30(1)(a),(f), 35, 36 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187), 37, 38, 41, 42, 49, 50, 51, 62, 63 (as am. idem), 64.
| Department of Justice Act, R.S.C., 1985, c. J-2, s. 5. |
| Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(1) (as enacted by S.C. 1990, c. 8, s. 5), 18.3(1) (as enacted idem). |
| Federal Court Rules, 1998, SOR/98-106, rr. 151, 152, 317. |
cases judicially considered
considered:
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 148 D.L.R. (4th) 385; 46 Admin. L.R. (2d) 155; 213 N.R. 161; Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707; (1994), 113 D.L.R. (4th) 275; 25 Admin. L.R. (2d) 241; 54 C.P.R. (3d) 511; 167 N.R. 43 (C.A.); Booth v. Huxter (1994), 16 O.R. (3d) 528; 111 D.L.R. (4th) 111; 69 O.A.C. 1 (Div. Ct.); Moffat v. Wetstein (1996), 29 O.R. (3d) 371; 135 D.L.R. (4th) 298; 5 C.P.C. (4th) 128; 4 O.T.C. 364 (Gen. Div.); Attorney General v. Blake, [1997] E.W.J. No. 1320 (C.A.) (QL).
referred to:
Hunter v. Canada (Consumer and Corporate Affairs), [1991] 3 F.C. 186; (1991), 29 C.P.R. (3d) 321; 35 F.T.R. 75 (C.A.); Essa (Township) v. Guergis; Membery v. Hill (1993), 15 O.R. (3d) 573; 52 C.P.R. (3d) 372; 22 C.P.C. (3d) 63 (Div. Ct.); Merck & Co. v. Interpharm Inc. (1993), 46 C.P.R. (3d) 513; 61 F.T.R. 1 (F.C.T.D.); Merck & Co. v. Interpharm Inc., [1992] 3 F.C. 774; 44 C.P.R. (3d) 440; 57 F.T.R. 306 (T.D.); Baumgartner v. Baumgartner (1995), 122 D.L.R. (4th) 542; [1995] 5 W.W.R. 289; 2 B.C.L.R. (3d) 126; 55 B.C.A.C. 277 (C.A.); Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337; (1997), 5 Admin. L.R. (3d) 237; 135 F.T.R. 254 (T.D.); Canada (Attorney General) v. Canada (Information Commissioner) (2000), 187 F.T.R. 1 (F.C.T.D.).
authors cited
De Smith, S.A. et al. Judicial Review of Administrative Action, 5th ed. London: Sweet & Maxwell, 1995.
Law Society of Upper Canada. Rules of Professional Conduct. Adopted by convocation on June 22, 2000, as amended to June 28, 2002.
MOTIONS to remove certain counsel of a law firm and the law firm itself as solicitors of record for the Attorney General of Canada and for the individual applicants in certain court files, and to strike the Attorney General of Canada as a party to certain court files. Motions dismissed.
appearances:
Peter K. Doody for applicants.
Daniel Brunet, Emily McCarthy and Marlys A. Edwardh for respondent.
solicitors of record:
Borden Ladner Gervais LLP, Ottawa, for applicants.
Office of the Information Commissioner, Ottawa, for respondent.
The following are the reasons for order rendered in English by
[1]McKeown J.: The Information Commissioner seeks to remove certain counsel from a law firm and the law firm itself as solicitors of record for the Attorney General of Canada and for the individual applicants in certain court files. Furthermore, the Information Commissioner is not challenging the propriety of counsel from the firm continuing to represent individual witnesses before the Commissioner during the investigation process in accordance with the orders issued and the related undertakings that the Commissioner deemed necessary to ensure the integrity and privacy of his investigation. The Commissioner is also seeking to strike the Attorney General of Canada as a party from certain files and a stay of the Attorney General of Canada proceedings in certain court files.
[2]The motion is brought in response to 29 applications for judicial review brought by the Attorney General of Canada and named individuals. They all arise out of four access requests which have resulted in complaints to the Information Commissioner, who has commenced investigations. In all of these applications for judicial review, the Attorney General of Canada and the individual applicants as represented by counsel from Borden Ladner Gervais LLP (BLG) have asked that the Commissioner provide them with transcripts and other information gathered during this private investigation pursuant to rule 317 of the Federal Court Rules, 1998 [SOR/98-106]. In certain of the applications the applicants also seek an interim order setting aside the confidentiality orders issued by the Commissioner in relieving counsel from BLG of the undertakings with respect to confidentiality of the witnesses' evidenc e which they undertook in their capacity as counsel for the applicants/witnesses before the Commissioner during his investigations.
[3]The individual applicants, all clients of BLG, appeared before the Information Commissioner's delegate, Al an Leadbeater, pursuant to subpoenas issued by his office on the following dates and gave evidence before him:
(a) March 7 and 30, 2001 -- Bruce Hartley, the Execut-ive Assistant to the Prime Minister;
(b) April 11 -- Jean Pelletier, then the Prime Minister's Chief of Staff;
(c) April 25 -- the Honourable Art Eggleton, the Minister of National Defence;
(d) April 26 -- Emechete Onuoha, then the Executive Assistant to the Minister of National Defence;
(e) April 26 -- Meribeth Morris, Director of Operations in the Office of the Minister of National Defence;
(f) April 30 -- Randy Mylyk, Director of Communica-tions in the Office of the Minister of National Defence;
(g) May 15 -- Sue Ronald, the Executive Assistant to the Minister of Transport;
(h) June 12 and June 21 -- Mel Cappe, the Clerk of the Privy Council
[4]The Commissioner agreed to such appearance of counsel for the individual witness only upon the issuance of a confidentiality order against the witness stating that the information concerning the interview could be disclosed only to legal counsel and only if legal counsel undertook not to disclose such information to any third parties. As legal counsel for the individual witnesses, counsel from BLG signed an undertaking not to disclose confidential information to any third parties.
[5]Paragraph 17 of the written representations of the Information Commissioner of Canada on this motion is as follows:
Counsel from BLG appeared with the individual witnesses before the Commissioner, after it was made clear that such appearance was as legal counsel solely for the witness in question and not as legal counsel for any other party, and more particularly, the Attorney General of Canada.
[6]The confidentiality order issued in respect of the March 7 evidence of Meribeth Morris, Emechete Onuoha, Randy Mylyk and Micheline Langlois, lists the clients of BLG as:
The Minister of National Defence, the Deputy Attorney General of Canada, the Clerk of the Privy Council Office, the Director, Legal Operations/Counsel, LHPC of the Privy Council Office, Mr. Michael Peirce, the Assistant Secretary to the Cabinet, LHPC of the Privy Council Office, Ms. Oonagh Fitzgerald, Senior General Counsel HRDC, Mr. Dick Fadden, Deputy Clerk of the Privy Council and Counsel and Ms. Andrea Neill, General Counsel, Legal Services Unit, Department of National Defence.
[7]On March 29, 2001, Mr. Brunet, General Counsel to the Information Commissioner wrote to Mr. Doody of BLG stating, in part:
The first matter raised in your letter of March 27 concerns your attendance as counsel to Mr. Hartley during the confidential testimony of Mr. Hartley. As you are well aware, the Information Commissioner is conducting his investigation in private and on an ex parte basis of complaints related to the refusal by the head of the Privy Council Office to give access to records requested by a person on June 25, 1999. It appears that Mr. David Scott, yourself and Mr. Lawrence Elliot are counsel for Mr. Hartley and for the head of the Privy Council Office, the Prime Minister of Canada and of several other officials involved in this matter such as the Attorney General of Canada, the Deputy Attorney General of Canada, the Clerk of the Privy Council, Mr. Mel Cappe and the Chief of Staff of the Prime Minister, Mr. Jean Pelletier. In this situation, special confidentiality requirements are necessary to preserve the integrity of the investigation and the confidentiality of the Information Commissioner's proceedings.
[8]In a subsequent letter on April 2, 2001, Mr. Doody wrote to Mr. Leadbeater, stating inter alia, with respect to Mr. Leadbeater's request to identify persons with whom Mr. Doody, Mr. Scott and Mr. Elliot have a solicitor/client relationship:
We are solicitors to the Prime Minister of Canada, the Crown, the Attorney General of Canada, and Mr. Hartley.
[9]Confidentiality orders were issued with respect to all the witnesses listed in paragraph 3 above.
[10]The wide gulf between the two parties in this matter can be shown in how they approach this motion. The Information Commissioner relies on the purpose of the Access to Information Act [R.S.C., 1985, c. A-1] and the role and powers and duties of the Commissioner. Section 2 of the Access to Information Act sets out the purpose as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
[11]In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 61, per La Forest J. dissenting but not on this point, he stated:
The overarching purpose of access to information legislation . . . is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.
[12]The Access to Information Act provides a two- tiered review of a decision of the head of a government institution who has refused access to records of information pursuant to the Act. The first level of review, namely an investigation, must be completed before a complainant may seek an order requiring the disclosure of the requested records. This is the responsibility, and indeed the statutorily mandated duty, of the Commissioner (paragraphs 30(1)(a), (f) and sections 41 and 42).
[13]The Commissioner's role is not to order the disclosure of any records to the complainant. Such power to order the disclosure of records is reserved to the Federal Court of Canada pursuant to sections 49 to 51 of the Act. Rather, the Commissioner's role is that of a fact-finder who reports directly to Parliament. The Commissioner's role is limited to making recommendations to government institutions, reporting to Parliament and reporting to the complainant.
[14]As a fact-finder, the Commissioner is provided with the jurisdiction to investigate all complaints made pursuant to section 30 of the Act, including any matter relating to requesting or obtaining records under the Act. The breadth of power provided to the Commissioner is further described in section 36 [as am. by R.S.C., 1985 (1st Supp.), ch. 27, s. 187] of the Act which has been described by Stone J.A. in Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.), at page 712 as follows:
The powers of the Information Commissioner in relation to his investigation of a complaint are set forth in section 36 . . . . These include the summoning and enforcing the attendance of persons and their compellability to give evidence on oath and to produce documents and things; and the administration of oaths and the reception of evidence and other information "whether on oath or by affidavit or otherwise" as the Information Commissioner sees fit, whether the evidence is or would be admissible in a court of law.
[15]While the Commissioner has a broad scope of power and discretion to investigate complaints under the Act, the Commissioner stresses the requirement to protect the private nature of his investigations pursuant to the Act. The private ("secrète") nature of the investigative process is clearly set forth in section 35 as follows:
35. (1) Every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private.
[16]Section 35 is reinforced in its effect by sections 62 through 64 [section 63 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 187], which together prohibit the Commissioner and every person acting on behalf or under the direction of the Commissioner from disclosing any information that comes to their knowledge during an investigation, save in exceptional circumstances, namely:
(a) where such disclosure is, in the opinion of the Commissioner, required to carry out an investigation or establish the grounds for findings and recommendations contained in the Commissioner's report;
(b) in the course of a prosecution for an offence under the Act, a prosecution for perjury in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom;
(c) where, in the opinion of the Commissioner, there is evidence that an officer or employee of a government institution has violated the law, in which case disclosure may be permitted to the Attorney General of Canada.
[17]The overreaching obligation of the Commissioner to protect the private nature of his investigations accords fully with the Commissioner's role, which, as stated above, is not one of disclosing or ordering the disclosure of documents, but rather of making recommendations to government institutions, reporting to Parliament and reporting to the complainants.
[18]On the other hand, BLG attacks the Information Commissioner with respect to his motives and states to the Court that the motives of the Information Commissioner are important to the Court's determination. The Attorney General of Canada states that these motions (to strike the Attorney General of Canada as an applicant in all applications, stay the Attorney Gener al from proceeding with all applications, and remove BLG as solicitor of record in all applications except the sections 37 and 38 applications) "are tactical manoeuvres which raise to new levels a series of steps by the Information Commissioner intended to shield his Office from any effective judicial review of the actions of his delegate". They further allege:
The Information Commissioner or his delegate, who act as investigator, advocate, and judge in the investigations, seek to avoid being held to an appropriate legal standard in the exercise of their investigative powers by impeding effective legal representation of witnesses, refusing to place the record of proceedings before him in front of the Court, and now by seeking to prevent the Attorney General from even bringing these matters before the Court.
[19]The Attorney General of Canada concludes that by bringing these two motions before the Court, the Information Commissioner has taken the position that:
(i) the Attorney General of Canada has no right to protect either the public interest in ensuring that this inferior tribunal is not abusing its discretion or exceeding its jurisdiction, or to protect the interests of the Crown in ensuring that Crown documents, or documents in the Office of the Prime Minister or a minister of the Crown, are treated in accordance with the law; and
(ii) attempt, at a crucial time in the proceedings, to prevent the representation of the applicants before the courts by the lawyers who have been acting, with the knowledge and concurrence of the Information Commissioner's delegate, for all of the applicants, both before the Information Commissioner's delegate and in the courts, for over a year.
[20]While I recognize the Access to Information Act is quasi-constitutional legislation and the Information Commissioner has an important role to play in our society, I do not believe without specific statutory provisions that it would preclude the Attorney General of Canada from having the right to protect the public interest and to represent the interests of the Crown in judicial review proceedings. The Information Commissioner raises two legitimate concerns. The first is how can the Attorney General of Canada give enlightened instructions to counsel to embark on applications for judicial review without knowing what is in the witnesses' transcripts. I agree that the Attorney General of Canada should not be informed about the Information Commissioner's investigation but the confidentiality orders and undert akings by counsel adequately protect the Information Commissioner in this respect. The Information Commissioner acknowledges that there has been no voluntary breach of the undertaking but it is the interpretation of the undertaking that is the problem. The second concern of the Information Commissioner relates to disclosure of information. The Commissioner is concerned about the disclosure of certain information relating to the BLG clients in these matters and the names of the four lawyers from BLG who were acting, together with the letter referred to in paragraph 32 of the factum. The Commissioner is also concerned about disclosure of correspondence between Mr. Leadbeater and counsel regarding a request for a witness to be allowed to communicate confidential information described in the confidentiality order to the Prime Minister of Canada. Further, the Commissioner is concerned about a breach of confidentiality by describing what happened at the hearings with respect to the Information Commissioner's view of counsel for the witnesses' role. I am satisfied that disclosure of any of this information would not be in contradiction to the confidentiality order.
[21]I note that BLG was granted access to information at the hearing in the context of the private nature of the hearing. In an abundance of caution, in addition to the issuance of the confidentiality order, the Information Commission required specifically named counsel at BLG to enter an undertaking to abide by the provisions of the confidentiality order.
[22]In order to obtain some idea of the type of order with respect to undertakings of confidentiality, I am setting out a copy of the order with respect to Mr. Bruce Hartley and Mr. David Scott.
Mr. Bruce Hartley
y
| (i) I, Mr. Bruce Hartley, do hereby undertake not to reveal in any manner to any person, firm or corporation, either directly or indirectly, any questions asked and answers given during my confidential testimony in this matter; |
| (ii) I will not use the said information nor permit the same to be revealed or used for any purpose; |
| (iii) I will take all reasonable and necessary precautions to ensure that all my notes made on the said information are retained under my control and possession and in such storage facility as to ensure no person other than myself will have access to it and I will destroy these notes when the Information Commissioner's inquiry is over; |
| (iv) I acknowledge and understand that I am bound by this undertaking until such time I am released thereof by Order of the Information Commissioner. |
Mr. David Scott
| (i) I, Mr. David Scott, barrister and solicitor, member of, Law Society of Upper Canada and counsel for Mr. Bruce Hartley, Ms. Micheline Langlois and the Prime Minister of Canada do hereby undertake not to reveal in any manner to any person, firm or corporation, either directly or indirectly, the confidential testimony of Mr. Bruce Hartley and Ms. Micheline Langlois; |
| (ii) I will not use the said information nor permit the same to be revealed or used for any purpose save in reporting to my clients the Prime Minister of Canada, the Deputy Attorney General of Canada, the Clerk of the Privy Council Office, the Chief of Staff of the Prime Minister's Office, Mr. Jean Pelletier, the Director, Legal Operations/Counsel, LHPC of the Privy Council Office, Mr. Michael Peirce, the Assistant Secretary to the Cabinet, LHPC of the Privy Council Office, Senior General Counsel HRDC, Ms. Oonagh Fitzgerald and Mr. Dick Fadden, Deputy Clerk of the Privy Council and Counsel; |
| (iii) I will take all reasonable and necessary precautions to ensure that all my notes made on the said information are retained under my control and possession and in such storage facility as to ensure no person other than myself will have access to it and I will destroy these notes when the Information Commissioner's inquiry is over; |
| (iv) I acknowledge and understand that I am bound by this undertaking until such time I am released thereof by Order of the Information Commissioner. |
[23]I will now set out the order with respect to undertakings of confidentiality with respect to Ms. Sue Ronald and Messrs. David Scott, et al.
| 1. In conformity with sections 34, 35, 36 and 64 of the Access to Information Act and the powers of a superior court of record that he has, the Deputy Information Commissioner orders Ms. Sue Ronald not to reveal, either directly or indirectly, any information disclosed during her confidential testimony in this matter including her testimony, in any manner to any person, firm or corporation with the exception of counsel for Ms. Ronald: Messrs. David W. Scott, Peter K. Doody, Lawrence Elliot and Guy Pratte once each respective individual has executed and returned to the Information Commissioner, General Counsel, an undertaking of confidentiality in the form prescribed by the Deputy Information Commissioner; |
| 2. In conformity with sections 34, 35, 36 and 64 of the Access to Information Act and the powers of a superior court of record that he has, the Deputy Information Commissioner orders counsel for Ms. Ronald: Messrs. David W. Scott, Peter K. Doody, Lawrence Elliot and Guy Pratte to keep confidential all information disclosed during the testimony of Ms. Ronald including the testimony of Ms. Ronald in this matter, in compliance with the terms of the following undertakings of confidentiality; |
Messrs. David W. Scott, Peter K. Doody, Lawrence Elliot and Guy Pratte
| (i) I, barrister and solicitor, member of Law Society of Upper Canada and counsel for Sue Ronald do hereby undertake not to reveal, either directly or indirectly, in any manner to any person, firm or corporation with the exception of Ms. Ronald, and counsel for Ms. Ronald, referred to in the Order of Deputy Information Commissioner dated May 15, 2001, once each respective counsel has executed and returned to the Information Commissioner, General Counsel, an undertaking of confidentiality in the form prescribed by the Deputy Information Commissioner, any information disclosed during the testimony of Ms. Ronald including the testimony of Ms. Ronald; |
| (ii) I will take all reasonable and necessary precautions to ensure that all my notes made on the said information are retained under my control and possession and in such storage facility as to ensure no person other than myself will have access to it and I will destroy these notes when the Information Commissioner's Inquiry is over; |
| (iii) I acknowledge and understand that I am bound by this undertaking until such time I am released thereof by Order of the Information Commissioner or by a court of competent jurisdiction. |
[24]The order related to Mr. Hartley is the subject of a letter from Mr. Brunet, the General Counsel to the Information Commissioner, to Mr. Doody dated March 29, 2001 wherein he stated:
In the afternoon of March 28, 2001, you requested access to Mr. Hartley's confidential transcript of his testimony concerning preliminary matters held in camera before the Deputy Information Commissioner on March 7, 2001 to be reviewed by Mr. Hartley and by you. The Order of Confidentiality dated March 7, 2001 has been amended to enable you and Mr. Hartley to have access to confidential transcripts on the same date as Mr. Scott and Mr. Elliot. A more restrictive order of confidentiality will require the substantive confidential testimony of Mr. Hartley.
[25]The orders were issued. The Information Commissioner stated at that time that he had no idea that the Attorney General of Canada would join with some of the witnesses in challenging the conduct of the investigation itself. The Information Commissioner concedes that BLG were acting for the Attorney General of Canada but states there is no res judicata. The difference in the type of case that the Attorney General of Canada is now involved in is that she is actually seeking to join in with witnesses questioning the conduct of the investigation by the Information Commissioner. It is only when this happened that the problem arose. The Information Commissioner also submits that it was different as well for the Attorney General to decide to seek consolidation of all the applications. The Information Commissioner submits that he is maintaining the integrity of the process of investigating complaints. However, there is nothing in the record to indicate that Parliament intended to exclude the courts from their usual supervisory powers over federal bodies. The Information Commissioner submits that it is his overarching obligation to protect the private nature of an investigation as his role is not one of disclosing or ordering the disclosure of documents but rather making recommendations to government institutions reporting to Parliament and reporting to the complainants.
[26]The Information Commissioner seeks to distinguish the normal rules respecting lawyers restricting the disclosure of knowledge they have to their clients because they are protecting the information for the benefit of a third party. The Information Commissioner submits that the confidential information is protected here in the public interest and by reason of the public statute. I cannot agree. Furthermore, in my view, there is no appearance of impropriety in BLG continuing to act for all parties. There is a genuine concern that by allowing the lawyer for the Attorney General to have information obtained through representation of other clients, the Attorney General may be permitted to benefit by that information.
[27]The Information Commissioner submits that if the lawyer is prevented from interacting professionally with a client, the lawyer is not permitted to take the retainer. In Booth v. Huxter (1994), 16 O.R. (3d) 528 (Div. Ct), Moldaver J. stated at page 543:
In deciding the issue, coroner Young referred to the reasons of Dubin J.A. (now C.J.O.) in the case of R. v. Speid, supra, where, at p. 600, His Lordship said:
| Mr. Speid has a right to counsel. He has a right to professional advice, but he has no right to counsel who, by accepting the brief, cannot act professionally. A lawyer cannot accept a brief if, by doing so, he cannot act professionally, and if a lawyer so acts, the client is denied professional services. |
However, in my view, the right to choose one's own counsel is a very important principle in law. It is also a quasi-constitutional principle, just as the Access to Information Act is quasi-constitutional legislation. It is important to note in this case that all of the individual clients, with the exception of the Clerk of the Privy Council, provided written instructions after having been provided with an opportunity to obtain legal advice in which they have instructed that they wish BLG to continue as their lawyers representing all of them and the Attorney General of Canada in these applications for judicial review. The Clerk of the Privy Council was out of the country but confirmed by telephone that he wished BLG to continue to act as his counsel in these proceedings.
[28]The applicants take the position that, of course, BLG will comply with the confidentiality order. The case of Hunter v. Canada (Consumer and Corporate Affairs), [1991] 3 F.C. 186 (C.A.) states that you cannot discuss subject-matter which is confidential, but there is no need to discuss the information subject to the order when the submissions are that the questions of the Information Commissioner are beyond his jurisdiction. As the applicants point out, they are seeking to have the Court, and not the Attorney General, look at the information, to decide if the questions go beyond the jurisdiction of the Information Commissioner. The applicant is mixing up the protection of information with the secrecy of the occasion. The information is protected. In my view, there is nothing in the Access to Information Act which makes the Information Commissioner the sole public body in the country which is not subject to the supervision of the courts. Surely, if the Information Commissioner takes the position that a lawyer cannot ask any questions then this is not information protected under the Act. It may be that this is a reasonable position for the Information Commissioner to take but it can only be done if the supervising court has a look at the context of the subject-matter.
[29]The Attorney General also wishes to challenge the extent of the confidentiality orders to determine if the terms therein represent an excess of jurisdiction.
[30]I also point out that CSIS matters are secret but again this does not mean that CSIS decisions are beyond review of the Court. In a democratic society there must be judicial review of secret investigations. That is not to say that the Information Commissioner is not entitled to considerable leeway in conducting the investigation but surely it must be subject to review. The allegation by the Attorney General of Canada is that the process followed by the Information Commissioner amounts to an abuse of power.
[31]The applicants raised the question of timeliness in relation to the Information Commissioner's position that he had no way of knowing that the Attorney General would make these challenges. Since the middle of May of the year 2000, the Information Commissioner was aware of who BLG were acting for. The Informa-tion Commissioner was aware that the Attorney General of Canada launched challenges to the confidentiality orders in April 2001. The Information Commissioner continued to proceed and nothing was said about it being inappropriate for BLG to act for witnesses over the summer. There was no suggestion until August that BLG should be removed from the record, even though they had known for at least five months.
[32]In my view, it is incorrect to say that the Court should not condone a situation where BLG has come into the possession of information pursuant to its representation of various witnesses pursuant to the Access to Information Act while now simultaneously being retained by the Attorney General of Canada and these witnesses in the judicial review applications. The Information Commissioner is adequately protected by the confidentiality orders and undertakings. This was recognized by Mr. Brunet in his letter of March 29, 2001, to Mr. Doody wherein he stated in part:
The first matter raised in your letter of March 27 concerns your attendance as counsel to Mr. Hartley during the confidential testimony of Mr. Hartley. As you are well aware, the Information Commissioner is conducting his investigation in private and on an ex parte basis of complaints related to the refusal by the head of the Privy Council Office to give access to records requested by a person on June 25, 1999. It appears that Mr. David Scott, yourself and Mr. Lawrence Elliot are counsel for Mr. Hartley and for the head of the Privy Council Office, the Prime Minister of Canada and of several other officials involved in this matter such as the Attorney General of Canada, the Deputy Attorney General of Canada, the Clerk of the Privy Council, Mr. Mel Cappe and the Chief of Staff of the Prime Minister, Mr. Jean Pelletier. In this situation special confidentiality requirements are necessary to preserve the integrity of the investigation and the confidentiality of the Information Commissioner's proceedings.
As stated earlier, counsel for the respondent acknowledges there has been no breach of undertaking by any of the officers of the Court and it is the professional business of BLG to retain these matters in confidence.
[33]There are allegations against the Information Commissioner's delegate with respect to his restriction of counsel's ability to assist the witness. A court cannot make any ruling on the restrictions without access to the transcripts.
[34]The applicants submit that the Court should see the transcripts of proceedings before the Information Commissioner prior to ruling on the motions to remove BLG as solicitor of record. It is clear that when the motion was made to remove the solicitor of record, the motives of the applicant may be examined and the Court must consider all of the circumstances of the case. Granger J. stated in Moffat v. Wetstein (1996), 29 O.R. (3d) 371 (Gen. Div.), at page 408:
Although it may appear obvious, where a motion is brought which appeals to the court's equitable jurisdiction to remove a solicitor of record, the relief should only be granted where the motion has proceeded on the basis of a genuine concern with respect to the merits of the alleged conflict. In other words, where a motion to remove a solicitor of record is brought for the purpose of frustrating or delaying one's opponent or to otherwise secure a tactical advantage in the course of litigation, the motion should be dismissed.
In this case, however, I do not need to view the transcripts to decide this issue.
[35]The Information Commissioner also submits that the applicants have breached the Rules of Professional Conduct of the Law Society of Upper Canada and cites rule 2.04 which provides at subrule 6:
2.04 (6) Before a lawyer accepts employment for more than one client in a matter or transaction, the lawyer shall advise the clients that:
(a) the lawyer has been asked to act for both or all of them,
(b) no information received in connection with the matter from one can be treated as confidential so far as any of the others are concerned, and
(c) if a conflict develops that cannot be resolved, the lawyer cannot continue to act for both or all of them and may have to withdraw completely.
In my view, this rule means that clients who enter a joint retainer with a solicitor can have no privileges between themselves in respect of information they communicate to the lawyer for the purpose of receiving legal advice and representation. It does not, explicitly or implicitly, state that a lawyer acting for clients on a joint retainer is required to breach any applicable order of a court or tribunal which prohibits the transmission to the client of relevant information. Furthermore, there has not been any suggestion that counsel for the applicants have breached any obligations contained in the confidentiality orders which prohibit them from disclosing, to anyone other than other counsel, all information disclosed during the confidential testimony of each witness. It is also clear that the Rules of Professional Conduct cannot require counsel to breach an order of a court. The codes of professional conduct do not govern orders of courts.
[36]Rules 151 and 152 of the Federal Court Rules, 1998 provide for the Court to make orders requiring material to be filed to be treated as confidential. Where such an order is made, unless otherwise ordered by the Court, only a solicitor of record or a solicitor assisting in the proceeding who is not a party, is entitled to have access to the confidential material.
[37]I note that in view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should do so only in clear cases. See: Essa (Township) v. Guergis; Membery v. Hill (1993), 15 O.R. (3d) 573 (Div. Ct.), at page 582.
[38]Courts are reluctant to interfere in the rights of a party to choose solicitors best suited to their needs and to assume responsibility for the strategy in any lawsuit. See: Merck & Co. v. Interpharm Inc. (1993), 46 C.P.R. (3d) 513 (F.C.T.D.), at page 515.
[39]A solicitor should not be removed merely because he or she might or could wrongfully deploy information subject to an implied undertaking of confidentiality. See: Merck & Co. v. Interpharm Inc., [1992] 3 F.C. 774 (T.D.), at page 777; affirmed by (1993), 46 C.P.R. (3d) 513 (F.C.T.D.).
[40]Delay is also to be considered as a factor which can be considered by a court in determining whether or not to exercise its discretion to remove a solicitor of record. See: Baumgartner v. Baumgartner (1995), 122 D.L.R. (4th) 542 (B.C.C.A.), at page 549.
[41]Furthermore, this motion for removal of BLG as solicitor of record for the applicants comes at a crucial time in the proceedings, when the affidavit evidence will shortly have to be filed and a short timetable imposed.
[42]Accordingly, the motion to remove BLG as solicitors of record is denied.
[43]On the issue of standing, the Information Commissioner submits that the Attorney General comes to court either on behalf of government departments or where the Attorney General upholds the public interest. The cases of Rubin v. Canada (Clerk of the Privy Council), [1994] 2 F.C. 707 (C.A.) and Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337 (T.D.) [hereinafter referred to as Petzinger] are cited to show that the Information Commissioner, by law, is not allowed to have any adversarial contact with the Attorney General over any process during an investigation. (See Petzinger, at paragraph 65, last sentence.)
[44]In deciding whether the Attorney General of Canada has a right to bring these applications for judicial review, it is necessary to look at section 5 of the Department of Justice Act [R.S.C., 1985, c. J-2] which provides in part as follows:
5. The Attorney General of Canada
(a) is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada, and also with the powers and duties that, by the laws of the several provinces, belonged to the office of attorney general of each province up to the time when the Constitution Act, 1867, came into effect, in so far as those laws under the provisions of the said Act are to be administered and carried into effect by the Government of Canada;
. . .
(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; . . . .
[45]Subsection 18.1(1) of the Federal Court Act [R.S.C., 1985, c . F-7 (as enacted by S.C. 1990, c. 8, s. 5)] is as follows:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
[46]Unlike the attorneys general of the provinces, the Attorney General of Canada has standing to bring applications for judicial review as of right.
[47]Subsection 18.3(2) [as enacted idem] of the Federal Court Act, which authorizes the Attorney General to refer a question of the constitutional validity, applicability or operability of an Act of Parliament to the Trial Division, in no way limits the Attorney General's rights pursuant to subsection 18 .1(1).
[48]The Attorney General has standing which cannot be brought into question in the courts to assert a claim for declaratory relief to protect the public interest. De Smith et al. in Judicial Review of Administrative Action (5th ed., 1995), at page 147 has provided the following explanation of the broad limits on the "public interest" in respect of which the Attorney General can seek declaratory relief:
What are the limits of the public interest is almost impossible to accurately define. Examination of a large number of authorities would indicate the wide range of situations in which the public interest has been accepted by the courts as being involved, however, the courts have, probably deliberately, refrained from spelling out its boundary. Certainly, however, any interference with the rights of the public (for example, in the highway), failure to perform or unsatisfactory performance of duties by public bodies for the benefit of the public, abuse of discretionary powers and illegal acts of a public nature will be regarded as raising issues of public interest.
[49]The English Court of Appeal has also stated [Attorney General v. Blake, [1997] E.W.J. No. 1320 (C.A.) (QL), at paragraph 46]:
In advancing . . . a claim for relief in public law, the Attorney is performing a different role. He is not merely a convenient nominal plaintiff representing the Crown. He is seeking relief in his historic role as guardian of the public interest. This gives the Attorney a special status in relation to the courts. He has a particular role and a particular responsibility. The role extends well beyond the field of criminal law, for example to the fields of contempt of court, charities and coroners' inquisitions. Its sources in some instances is derived from statute. However, in relation to other functions, the role is an inherent part of his ancient office. It is the inherent power flowing from his office which enables the Attorney either to bring proceedings ex officio himself or to consent to the use of his name . . . .
[50]In all the applications for judicial review in which the Attorney General is an applicant, remedies are sought to curb [See: De Smith, supra, at page 147]:
. . .unsatisfactory performance of duties by public bodies for the benefit of the public, abuse of discretionary powers and illegal acts of a public nature. . . .
[51]The Attorney General, as well as seeking remedies in all these applications pursuant to her obligation to ensure that the public interest is protected, is also acting pursuant to her authority to regulate and conduct "all litigation for or against the Crown or any department". The documents in question before me are government documen ts, not those of private public servants. In the case before me the Attorney General is not seeking access to the confidential information but rather to have the confidential information reviewed by a court in order to determine whether there has been an abuse of discretionary powers by the Information Commissioner. The Attorney General is also seeking to have judicial review of the procedural role of the Information Commissioner. In my view, the Attorney General of Canada has the right to bring these applications for judicial review. Furthermore, with respect to Court files T-1640-00 and T-1641-00 [Canada (Attorney General) v. Canada (Transportation Commissioner) (2000), 187 F.T.R. 1 (F.C.T.D.)], the Court struck out the application by the Information Commissioner seeking to strike out the notices of application in these files and the Federal Court of Appeal dismissed the appeal of the Information Commissioner from that portion of my order. All the arguments upon which the Information Commissioner now relies seeking to strike the Attorney General were either made or should have been made in the earlier unsuccessful attempt to strike these applications. Consequently, the doctrine of res judicata and cause of action estoppel prevents these arguments from being raised anew. The Court has determined that the Attorney General of Canada may bring these applications -- T-1640-00 and T-1641-00.
[52]The Information Commissioner's motions with respect to removing certain counsel as solicitors of record and to strike the Attorney General of Canada as a party are dismissed.