T-2204-72
Leo A. Landreville (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, August 4
and 10, 1976.
Practice—Crown privilege Plaintiff seeking order under
Rule 451 requiring production of certain documents—Plaintiff
also seeking reattendance pursuant to Rule 465(18) of defend
ant's officer to answer questions that he failed or refused to
answer in examination for discovery—Federal Court Act, s.
41(2) Federal Court Rules 451 and 465(18).
Plaintiff, suing for declaratory judgment that he is entitled to
an annuity under section 23(1)(c) of the Judges Act, requires
production of certain documents referred to in the examination
for discovery of the defendant's officer and the reattendance of
that officer to answer questions which he failed or refused to
answer during that examination. Documents consist of minutes
of certain specified Cabinet meetings and memoranda to Cabi
net by the Minister of Justice and to the Prime Minister from
Mr. Pitfield of the Privy Council Office.
Held, the motion pursuant to Rule 451 is denied; the motion
pursuant to Rule 465(18) is allowed in respect of certain
specified questions. Refusal to produce documents was on
grounds that to do so would be to disclose a confidence of the
Privy Council of Canada and an affidavit sworn by Mr. Drury,
a Minister of the Crown, certified that that would be the case.
Under section 41(2) of the Federal Court Act such certification
is final. Questions 6 and 9, which must be answered, are to be
considered in the context of the pleadings since the examination
for discovery was not disposed of but merely adjourned sine die.
The answer to question 6 was refused on the grounds that the
question did not come within the scope of the order made at the
previous examination for discovery. This is clearly ill-founded
as is the defendant's argument that the question was hypotheti
cal and irrelevant. The answer to question 9 was refused on the
grounds that the defendant's officer did not know it and, on
advice of counsel, refused to find out. Since the question is on a
matter of fact it should be answered. Questions 12 and 25 are
questions of law and should not be answered. Questions 30 and
33 are merely argumentative and serve no useful purpose.
Question 61 has been answered and questions 122, 123 and 124
all seek to ascertain information which the defendant has or
had at the time the plaintiff resigned. The grounds for refusing
to answer them are improperly evasive. However, in view of the
answers to subsequent questions the plaintiff has not been
denied full and proper discovery of the subject.
Duncan v. Cammell, Laird & Co. Ltd. [1942] A.C. 624
and Conway v. Rimmer [1968] A.C. 910, discussed.
APPLICATION for discovery.
COUNSEL:
Gordon F. Henderson, Q.C., and Y. A. George
Hynna for plaintiff.
George Ainslie, Q.C., and L. S. Holland for
defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff seeks orders under
Rules 451 and 465(18), respectively, requiring (1)
the production of certain documents referred to in
the examination for discovery of the defendant's
duly nominated officer and (2) the reattendance of
that officer to answer questions which he failed or
refused to answer when so examined. The plaintiff
is suing for a declaratory judgment that he is
entitled to an annuity under section 23(1)(c) of the
Judges Act' ensuing upon his resignation, in June
1967, from his office as a judge of the Supreme
Court of Ontario.
23. (1) The Governor in Council may grant to
(c) a judge who has become afflicted with some permanent
infirmity disabling him from the due execution of his office,
if he resigns his office ...
an annuity not exceeding two-thirds of the salary annexed to
the office held by him at the time of his resignation, ... .
The documents which the plaintiff seeks to have
produced, as set forth in the notice of motion, are
referred to in questions 93 to 97 inclusive of the
transcript of the continuation of the examination
for discovery held March 17, 1976. They are:
1. Minutes of meetings of the Cabinet relating
generally to the consideration by the Cabinet of
' R.S.C. 1952, c. 159 as amended by S.C. 1960, c. 46, s. 3.
the grant of a judge's pension to the plaintiff.
Those Cabinet meetings were held April 6, May
4, June 8, June 29, October 17 and October 26,
1967 and March 7, 1968. (Q.93)
2. Minutes of meetings of the Cabinet relating
specifically to the plaintiff's application, by
letter of June 23, 1967 to the Minister of Jus
tice, for such a pension. Those meetings were
held June 29, October 17, October 26, 1967 and
March 7, 1968. (Q.94 and 95)
3. Memoranda to Cabinet from the Minister of
Justice dated May 5 and October 6, 1967 and a
memorandum to the Prime Minister from Mr.
P. M. Pitfield of the Privy Council Office dated
November 1, 1967. (Q.96 and 97).
The refusal to produce each of the foregoing docu
ments at the examination for discovery was for the
stated reason that to do so would be to disclose a
confidence of the Privy Council for Canada
(Q.99). Subsequent to the filing of the notice of
motion herein an affidavit, sworn by Charles Mills
Drury, a Minister of the Crown, was filed depos
ing, inter alia, that he had had produced to him
and had carefully read each of the above docu
ments as well as the Records of Cabinet Decisions
for each of the dates in issue, and certifying that
the production or discovery of them or their con
tents "would disclose a confidence of the Queen's
Privy Council for Canada".
Section 41(2) of the Federal Court Act 2
provides:
41. (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, na
tional defence or security, or to federal-provincial relations, 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.
This provision had no counterpart in the Excheq
uer Court Act 3 . Prior to the enactment of section
41(2) in 1970, "Crown privilege" as it pertains to
the Crown in right of Canada was determined by
the common law.
Bearing in mind the fact that the House of
Lords rendered its unanimous decision in Conway
2 R.S.C. 1970 (2nd Supp.) c. 10.
3 R.S.C. 1970, c. E-11.
v. Rimmer 4 in February 1968, it is apparent that
Parliament deliberately codified the common law
as stated in Duncan v. Cammell, Laird & Co.
Ltd. 5 to forestall application of Conway v. Rimmer
in Canada. "A comparison of section 41(2) to the
following passage from the speech of Viscount
Simon L.C., in Duncan v. Cammell, Laird & Co.
Ltd. leaves no room for doubt as to the paternity of
the section.
The minister, in deciding whether it is his duty to object ...
ought not to take the responsibility of withholding production
except in cases where the public interest would otherwise be
damnified, for example, where disclosure would be injurious to
national defense, or to good diplomatic relations, or where the
practice of keeping a class of documents secret is necessary for
the proper functioning of the public service. When these condi
tions are satisfied and the minister feels it is his duty to deny
access to material which would otherwise be available, there is
no question but that the public interest must be preferred to
any private consideration. 6
That codification precludes the evolution in
Canada of a Crown privilege where the final deci
sion on production in litigation of relevant docu
ments rests with an independent judiciary rather
that an interested executive, recognizing that the
conflict, in such circumstances, is not between the
public interest and a private interest but between
two public interests. As stated by Lord Reid, in
Conway v. Rimmer':
There is the public interest that harm shall not be done to the
nation or the public service by disclosure of certain documents,
and there is the public interest that the administration of justice
shall not be frustrated by the withholding of documents which
must be produced if justice is to be done.
While I should not think that the result would be
at all likely to be different in the case of this
particular application, dealing as it does with (1)
Cabinet minutes, (2) memoranda to Cabinet from
a Minister and (3) a memorandum from an offi
cial to his Minister in respect of a matter before
Cabinet, I am spared the necessity of exercising
any discretion in reaching that result.
Section 41(2) of the Federal Court Act renders
the Court powerless in the face of a properly
composed ministerial objection to production. That
is certainly the case where the documents are
plainly of a class, as these are, appropriate to the
[1968] A.C. 910.
5 [1942] A.C. 624.
6 Ibid at 642.
7 [1968] A.C. at 940.
basis upon which the claim of Crown privilege is
asserted. However, Mr. Drury's affidavit went on
to assert privilege in respect of certain Records of
Cabinet Decisions solely on the basis that the
production or discovery of such documents or their
contents "would disclose a confidence of the
Queen's Privy Council for Canada". Since the
plaintiff, in his notice of motion, does not seek
these documents, I can not deal with them. I
should not wish silence to be taken as acquiescence
in the proposition that it is not open to the Court
to adjudicate whether or not documents for which
such a claim is asserted are, in fact, of a class
amenable to the claim and I regard as open the
following questions:
In Canada, today, where a Cabinet decision itself concludes
the discharge by the Governor in Council of a statutory duty to
an individual or, for that matter, to the public at large is that
decision amenable to privilege only because its publication
would disclose a confidence? If not, can the same claim be
asserted in respect of the document that records the decision?
Before I leave this subject, I should note that the
defendant's counsel volunteered an explanation as
to why Mr. Drury, Minister of State for Science
and Technology and Minister of Public Works,
had asserted the claim of privilege. Counsel felt an
explanation desirable in that Mr. Drury's minis
terial responsibilities are not obviously related to
the subject matter of this action'. It is the policy of
the Privy Council Office not to disclose the Cabi-
8 An incomplete but extensive survey of reported English and
Scottish cases indicates that it has been taken for granted by
the Crown in Great Britain that a minister asserting Crown
privilege should be the "appropriate" or "responsible" minister.
This has been so whether the privilege has been asserted on the
basis of the contents or the class of the documents. Perhaps as a
result, their courts too seemed to have assumed that such would
be the case without actually deciding the specific question.
For example, in Conway v. Rimmer, a "class" case, one finds
in the summary of the Attorney-General's argument, at page
927, the assertion: "The Home Secretary is the appropriate
Minister to deal with documents of this sort". In the speeches
of the Law Lords, the following phrases occur in relevant
contexts: "the view of the responsible Minister" (Lord Reid at
p. 943); "If a responsible Minister stated" (Lord Morris of
Borth-y-Gest at p. 956); "the Minister in whose hand the
documents might be" (Lord Hodson at p. 976). It may, of
course, be that more than one minister is "appropriate" or,
indeed, that all ministers are, given the documents in question
and the basis upon which privilege is asserted.
net documents generated during the tenure of a
particular Prime Minister to ministers who did not
serve during that tenure. The documents in ques
tion were generated while the Rt. Hon. L. B.
Pearson was Prime Minister. Mr. Drury is among
the limited number of present Ministers of the
Crown who served as such under Mr. Pearson. No
explanation was required; no objection was taken
to the claim on the basis that Mr. Drury was not
the appropriate Minister to assert it.
I now turn to the particular questions for which
an order to reattend is sought. The officer nomi
nated by the defendant was first examined for
discovery on August 22, 1975. The continuation of
the examination on March 17, 1976 followed an
order made by my brother Gibson requiring his
reattendance to answer the following questions
(and any questions logically arising out of the
answers to such question), namely:
(1) whether or not there is a Cabinet minute or other Cabinet
document applicable generally to the application of the plaintiff
to the Governor in Council for a pension; and (2) whether or
not there is a Cabinet minute or other Cabinet document
applicable specifically to the written request of the plaintiff for
a pension or annuity pursuant to the provisions of section 23 of
the Judges Act.
It will be apparent from what has preceded that on
the re-examination the plaintiff did elicit affirma
tive answers and obtain the dates of the Cabinet
meetings to which such minutes pertained. It is
also clear from the transcript of August 22, 1975
that the examination was not concluded subject
only to the application disposed of by Gibson J.; it
was simply adjourned sine die. It is therefore
necessary to consider this application in the con
text of the pleadings and not the order. The ques
tions for which reattendance to answer is sought,
all from the transcript of March 17, 1976, are
Nos. 6, 9, 12, 25, 30, 33, 61, 122, 123 and 124.
1. Q.6 ... identify for me the steps that are taken in the
ordinary course in relation to the exercise of the power under
section 23 of the Judges Act by the Governor in Council.
An answer was refused on the ground that the
question did not come within the scope of the order
made by Gibson J. The refusal on that basis was
ill-founded. Counsel for the defendant argued
before me that the question was hypothetical and
irrelevant. It is neither and should be answered.
2. Q.9 ... is there a difference between a Cabinet Commit
tee, and the full Cabinet?
The witness replied that he did not know and, on
advice of counsel, refused without stated reason to
undertake to find out. The existence of and distinc
tion between the Cabinet and various Cabinet
Committees are, I think, largely, if not entirely,
matters of fact rather than law. I cannot say that
the question is irrelevant. It should be answered.
3. Q.12 Is there a difference between a committee of the
Privy Council and the Privy Council itself?
I agree with the defendant's counsel that this is a
question of law and ought not be answered.
4. Q.25 What is an Order-in-Council?
This, too, is a question of law and ought not be
answered.
5. Q.30 ... could I ask you whether it is considered a
confidence of the Queen's Privy Council for Canada that an
application was made by Mr. Landreville for an annuity?
6. Q.33 Is the application considered by the respondent a
confidence of the Queen's Privy Council for Canada?
I fail to see any useful purpose to be served by the
pursuit of these questions inasmuch as the plaintiff
has pleaded and the defendant admitted that the
application was made. (Declaration: paragraph 6;
statement of defence: paragraph 1.) Under the
circumstances, the questions are argumentative.
7. Q.61 Would you explain to me why the letter from Mr.
Trudeau of March 5th predates the Order-in-Council of March
7th, 1968, to which you have reference?
The letter, which is on the record of the examina
tion for discovery, was written to the plaintiff by
the Minister of Justice. The question, as put, has
been answered: there is no such Order in Council.
This matter was gone into during both examina
tions. If counsel for the plaintiff had intended to
refer to the Cabinet meeting, rather than the
Order in Council, of March 7, 1968, he had ample
opportunity, in the interval between the examina
tions, to get the question straight.
Questions 122, 123 and 124 all seek to ascertain
the information, or knowledge, which the defend-
ant (a) now has, and (b) had at the time of the
resignation, of the plaintiff's infirmity or perma
nent disability which was his stated reason for
resigning from the bench. The refusal to answer
the particular questions because to do so would
imply an admission that there had existed, at the
time of resignation, such an infirmity or perma
nent disability is improperly evasive. That said, I
really do not see, in view of the answers to ques
tions 133 through 138, that the plaintiff has been
denied full and proper discovery of the subject.
The witness' evidence is that the defendant's only
information was that conveyed by the plaintiff. He
knows what he conveyed.
ORDER
1. The motion, pursuant to Rule 451, to require
the production of the documents referred to in
questions 93 to 97, inclusive, of the examination of
Solomon Samuels dated March 17, 1976 is denied.
2. The motion pursuant to Rule 465(18) is
allowed only to the following extent: Solomon
Samuels shall, at his own expense, reattend his
examination for discovery to answer questions 6
and 9 which he declined to answer on his examina
tion for discovery of March 17, 1976 and such
further questions as may reasonably arise from his
answers to those questions.
3. Costs, on the basis of this having been a single
motion, shall be in the cause.
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.