Desjardins v. Canada (Attorney General)

Desjardins v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-07-17
Neutral citation
2020 FCA 123
File numbers
A-316-18
Notes
Digest
Decision Content
Date: 20200717
Docket: A-316-18
Citation: 2020 FCA 123
[ENGLISH TRANSLATION]
CORAM:
NADON J.A.
RENNIE J.A.
RIVOALEN J.A.
BETWEEN:
GENEVIÈVE DESJARDINS
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE PUBLIC SECTOR INTEGRITY COMMISSIONER
Third Party
Heard at Ottawa, Ontario, on November 14, 2019.
Judgment delivered at Ottawa, Ontario, on July 17, 2020.
REASONS FOR JUDGMENT BY:
NADON J.A.
CONCURRED IN BY:
RENNIE J.A.
RIVOALEN J.A.
Date: 20200717
Docket: A-316-18
Citation: 2020 FCA 123
CORAM:
NADON J.A.
RENNIE J.A.
RIVOALEN J.A.
BETWEEN:
GENEVIÈVE DESJARDINS
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE PUBLIC SECTOR INTEGRITY COMMISSIONER
Intervener
REASONS FOR JUDGMENT
NADON J.A.
I. Introduction
[1] This is an appeal from a decision of Justice Grammond (the Judge) of the Federal Court dated September 20, 2018 (2018 FC 938) allowing an appeal from a decision rendered by Prothonotary Tabib (the Prothonotary) on April 27, 2018 (T-1308-18).
[2] More specifically, the Judge held that the Prothonotary had erred in dismissing a motion filed by the Public Sector Integrity Commissioner of Canada (the Commissioner) pursuant to Rule 151 of the Federal Courts Rules, SOR/98-106 (the Rules) for a confidentiality order with respect to certain aspects of the supplementary certified record, the filing of which was ordered by the Prothonotary on January 25, 2018.
[3] For the reasons that follow, I find that the Judge was wrong to intervene and, therefore, I would restore the order made by the Prothonotary.
II. Facts and proceedings
[4] In March 2014, the appellant became vice-president of communications and public affairs for the Canadian Food Inspection Agency (the Agency).
[5] On February 5, 2015, employees filed two psychological harassment complaints against the appellant with the Agency’s human resources branch. The next day, a former employee of the Agency filed a similar complaint against the appellant.
[6] On October 27, 2015, pursuant to the Public Servants Disclosure Protection Act, S.C. 2005 c. 46 (the Act), one or more people sent the Commissioner a disclosure of alleged wrongdoings by the appellant. After a preliminary review of the disclosure, the Commissioner decided, on January 26, 2016, to conduct an investigation and he notified the appellant of the investigation by way of a letter dated February 12, 2016.
[7] During the investigation conducted by the Commissioner, 31 witnesses were interviewed, including the person(s) who made the disclosure and the appellant.
[8] On July 25, 2017, the appellant received a letter from the Commissioner dated July 24, 2017, informing her that there had been a finding of wrongdoing. More specifically, the Commissioner had found that the appellant had committed wrongdoings within the meaning of the Act, in particular that her interactions with her employees had been unacceptable, that she had deliberately and frequently been rude and disrespectful to them, and that her behaviour had had a negative impact on the well-being of a number of her employees.
[9] On August 22, 2017, the appellant filed an application for judicial review of the Commissioner’s decision. The appellant claimed that the disclosure of wrongdoings against her (file PSIC-2015-D-0173) was untrue and resulted from the bad faith of the persons who made the disclosure. She also claimed that there was a reasonable apprehension of bias on the part of the Commissioner because of certain public statements allegedly made by the Commissioner. She also stated that the Commissioner’s investigator had shown obvious bias during the investigation and had been incompetent in the performance of his duties.
[10] In her application for judicial review, the appellant, pursuant to Rule 317 of the Rules, requested a copy of all of the documents and information in the Commissioner’s possession that were the subject of the investigation and the decision. The appellant supported her request with a list of the specific information and documents that she wanted to obtain.
[11] On October 2, 2017, the Commissioner sent the appellant a copy of the documents and information upon which he had based his decision of July 24, 2017 (the certified record). Not satisfied with the contents of the certified record, the appellant, on October 13, 2017, requested the entire investigation file from the Commissioner.
[12] Following that request, the Commissioner filed an objection pursuant to Rule 318(2) with respect to the appellant’s request for material.
[13] On January 25, 2018, the Prothonotary made an order in respect of the objection filed by the Commissioner. Specifically, the Prothonotary found that the Commissioner’s objection was ill-founded in regard to certain documents and, therefore, she made the following order:
[translation]
THE COURT ORDERS that:
1. The Commissioner’s objections to providing the following documents are dismissed, and the Commissioner will provide the Court and the applicant with a supplementary certified record responding to those requests within 20 days of the date of this order.
(a) The list of all of the witnesses who participated in the investigation (category 6).
(b) Transcripts of all witness interviews (category 7).
(c) The documents identified in paragraphs 20(a) to (f) of the Commissioner’s written submissions dated November 10, 2017 (category 8, in part).
(d) The recordings and discussion notes relating to the investigation between the Commissioner, members of his staff and his investigators and the complainants, as well as all of the witnesses who were interviewed, except for internal communications over which solicitor-client privilege is claimed, in which case the certificate will describe the document and state the facts giving rise to the privilege claimed (category 9).
(e) Complete copy of Tim Connor’s employee file consulted by the Commissioner (category 11, in part).
(f) Copy of all of the emails and/or electronic or paper communications between the witnesses or the complainants in the Commissioner’s possession (category 12).
[Emphasis added.]
[14] By order of February 16, 2018, the Prothonotary extended the Commissioner’s deadline for sending the supplementary certified record to March 7, 2018, and advised the Commissioner that any motion for a confidentiality order had to be served and filed no later than March 7, 2018.
[15] On March 9, 2018, the Commissioner requested that the Court issue a confidentiality order in accordance with the terms of a draft confidentiality order attached to the motion relating to the use, disclosure and dissemination of certain confidential material and information in the certified record, transmitted on October 2, 2017, pursuant to Rule 318, and the supplementary certified record dated March 7, 2018, transmitted following the order made by the Prothonotary on January 25, 2018.
[16] Specifically, the Commissioner sought a confidentiality order to keep a limited amount of the information in his investigation file confidential. The order sought by the Commissioner included three versions of the certified record and the supplementary certified record:
(a) a complete, unredacted and fully confidential version for the Court and for counsel for the parties (the confidential version for the Court and counsel for the parties); and
(b) a redacted version for filing in the public record of the Court (public version). This public version would not include the names of the witnesses or the persons who made the disclosure or any information that could identify them, the audio recordings of the witness interviews, the investigators’ handwritten notes, an Agency employee’s file, as well as an audio recording of a conversation between the investigator and the appellant’s first counsel;
(c) a partially redacted version for the parties (confidential version for the parties). This version would include all of the elements of the file, with the exception of the audio recordings of the interviews and the names of the persons who made the disclosure as well as any information that could identify them.
[17] By her order of April 27, 2018, except with regard to certain privileged documents and personal information in an Agency employee’s file, the redaction of which the appellant did not object to, the Prothonotary dismissed the Commissioner’s confidentiality motion.
[18] On May 8, 2018, pursuant to Rule 51, the Commissioner appealed the Prothonotary’s order.
[19] On September 20, 2018, the Judge reversed the Prothonotary’s order and made the order sought by the Commissioner, except with regard to the disclosure to the appellant of the audio recordings of the witness interviews, subject to redaction of any information that could reveal to the appellant the identity of the persons who made the disclosure.
III. The Prothonotary’s decision of April 27, 2018
[20] On page 2 of her reasons, the Prothonotary described the nature of the issues raised by the Commissioner’s confidentiality motion. In particular, she explained that the order sought by the Commissioner involves two levels of confidentiality.
[21] First, the order sought would prevent public disclosure of any information that could reveal the identity of the persons who made the disclosure and the witnesses who participated in the investigation, as well as the personal opinions provided by those witnesses during the investigation. Also, the personal data in an Agency employee’s file would not be disclosed.
[22] Second, the order sought would not allow the identity of the person(s) who made the disclosure to be disclosed to the parties. Finally, counsel for the parties and the Court would have access to the complete, unredacted file.
[23] The Prothonotary began her analysis by stating that the principle of [translation] “open and accessible court proceedings is one of the foundations of a democratic society.” (Reasons of the Prothonotary, p. 3). According to the Prothonotary, it follows that a confidentiality order should not be issued unless the Court is satisfied that the order is necessary to prevent a serious risk to an important interest and that the order’s salutary effects outweigh its deleterious effects.
[24] The Prothonotary also stated that the burden of establishing that there is a real and substantial risk to an important interest rests with the moving party. She also stated that, according to the Commissioner, the important public interest in this case is the protection of the persons who made the disclosure and the witnesses against possible reprisals and Parliament’s will to encourage public servants to report wrongdoings within the public service.
[25] The Prothonotary was of the view that the interest advanced by the Commissioner is an important public interest but added that it is necessary to show that publishing the information for which the Commissioner sought a confidentiality order [translation] “represents a real and substantial risk to that interest.” (Reasons of the Prothonotary, p. 4).
[26] According to the Prothonotary, the Commissioner failed to demonstrate that publishing the information in question represented a real and substantial risk to the interest that the Commissioner wanted to protect. The Prothonotary’s reasons for this finding are as follows.
[27] The first ground raised by the Prothonotary in support of her conclusion is that despite the fact that the application for judicial review filed by the appellant identified two of the persons who made the disclosure and a number of witnesses, there is no evidence that those persons had suffered reprisals or were at risk of suffering reprisals. In addition, according to the Prothonotary, any risk of reprisals would necessarily be directed at the persons who made the disclosure by the appellant herself. According to the Prothonotary, this finding and the fact that the Commissioner did not object to the appellant receiving the list of all of the witnesses interviewed during the investigation were such that disclosing that list to the public would not put those people at risk.
[28] The Prothonotary ended her comments on her first ground by asserting that [translation] “neither the evidence nor the application of reason or logic supports the finding that there is a serious risk of reprisals in this case requiring that the public’s or the applicant’s access to the identity of the witnesses or the persons who made the disclosure be restricted.” (Reasons of the Prothonotary, p. 5).
[29] As a second ground, the Prothonotary indicated that the Commissioner failed to demonstrate, to the satisfaction of the Court, how publicly disclosing the identity of the persons who made the disclosure or the witnesses could have a deterrent effect on disclosure in general and on potential witnesses. At page 5 of her reasons, the Prothonotary stated the following:
[translation]
. . . The risk of such a deterrent effect is even more difficult to understand when the identity of the persons who made the disclosure or the witnesses is revealed at the judicial review stage, when the Commissioner’s investigation is done, the complaints have been found to be justified and the report has been made public, and in circumstances where two of the persons who made the disclosure and several witnesses have already been publicly identified during the proceedings.
[30] Consequently, the Prothonotary found that the confidentiality order sought by the Commissioner was not justified in the circumstances.
[31] Before concluding her reasons, the Prothonotary pointed out that the Commissioner’s argument was essentially based on sections 11, 22 and 44 of the Act, which require chief executives in the public service, the Commissioner, and every person acting under the direction of the Commissioner, to protect the identity of persons making disclosures and witnesses of wrongdoings. According to the Prothonotary, it was important to note that the obligation of confidentiality required by those provisions is subject to exceptions arising from the operation of any other Act of Parliament and the rules of law that are in force. Therefore, in her view, it would be wrong to say that persons who make a disclosure and witnesses could have a reasonable expectation that their identity would remain confidential [translation] “outside the scope of the Commissioner’s investigation.” (Reasons of the Prothonotary, p. 6).
[32] According to the Prothonotary, Parliament did not see fit to extend the obligation of confidentiality to the Federal Court when it exercises its judicial review powers as it did for information subject to the Access to Information Act, R.S.C. 1985, c. A-1, section 47 and the Privacy Act, R.S.C. 1985, c. P-21, section 46, in the course of reviews under those Acts.
[33] For these reasons, the Prothonotary dismissed the Commissioner’s motion with costs.
IV. The Judge’s decision dated September 20, 2018
[34] The Judge found that the Prothonotary erred in dismissing the Commissioner’s motion for a confidentiality order. According to the Judge, the motion should have been granted. In particular, he found that the Prothonotary made two errors in concluding as she did.
[35] First, although the Judge was of the opinion that the Prothonotary properly understood the principles regarding open courts and confidentiality orders, he was of the view that the Prothonotary imposed on the Commissioner a greater burden of proof than that set out by the Supreme Court of Canada in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567 [Bragg]. Specifically, the Judge stated that he disagreed with the Prothonotary, who, relying on the Supreme Court’s decision in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R 522 [Sierra Club], stated that the party seeking a confidentiality order must [translation] “establish a real and substantial risk, well grounded in the evidence, that poses a serious threat to the interest in question” (Reasons of the Prothonotary, p. 3, citing paragraph 54 of Sierra Club).
[36] According to the Judge, the Prothonotary failed to consider the Supreme Court’s decision in Bragg, where the Court stated the following at paragraphs 15 and 16:
[15] The amicus curiae pointed to the absence of evidence of harm from the girl about her own emotional vulnerability. But, while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm.
[16] This Court found objective harm, for example, in upholding the constitutionality of Quebec’s Rules of Practice that limited the media’s ability to film, take photographs, and conduct interviews in relation to legal proceedings (in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19), and in prohibiting the media from broadcasting a video exhibit (in Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65). In the former, Deschamps J. held (at para. 56) that the Dagenais/Mentuck test requires neither more nor less than the one from R. v. Oakes, [1986] 1 S.C.R. 103. In other words, absent scientific or empirical evidence of the necessity of restricting access, the court can find harm by applying reason and logic: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 72; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 91.
[37] Relying on Bragg, the Judge stated that it was “not always necessary to provide evidence in support of a motion for a confidentiality order.” (Reasons of the Judge, para. 10). More particularly, the Judge found that the Prothonotary had erred by requiring the Commissioner to demonstrate the deleterious effects of public disclosure of the identity of the persons who made the disclosure and the witnesses. According to the Judge, in this case, the harm is “objectively discernable” based on “the analysis of the legislative scheme in question and [based on] Parliament’s purpose . . .” (Reasons of the Judge, para. 11). In other words, in light of the Act and its purposes, disclosure would threaten or compromise the public interest pursued by Parliament.
[38] Second, the Judge addressed the Prothonotary’s interpretation of the Act whereby the Act “does not, in any way, guarantee confidentiality to persons making disclosures or witnesses where an investigation is the subject of an application for judicial review before this Court.” (Reasons of the Judge, para. 14).
[39] After having reviewed the relevant provisions of the Act, the Judge found that there could be no doubt that Parliament considered the confidentiality of disclosures and testimony as essential for the purposes of the Act. At paragraph 24 of his reasons, the Judge stated the following:
To summarize, the purpose, scheme and wording of the Act, combined with a dose of “reason and logic,” show that Parliament considered that the public disclosure of whistleblowers’ identity would risk thwarting the purposes of the Act, particularly the purpose of ensuring effective disclosure procedures. In my view, nothing more is required to demonstrate the need for a confidentiality order.
[Emphasis added.]
[40] For these reasons, the Judge found that the Commissioner had demonstrated that the order sought was necessary to ensure the anonymity of the witnesses and the persons who made the disclosure. With the exception of a part of the proposed order aimed at preventing the appellant from having access to the audio recordings of the witness interviews, the Judge stated that he agreed with the order sought, which, in his view, was a minimal infringement on the principle of open and accessible court proceedings and procedural fairness.
V. The appellant’s arguments
[41] The appellant challenges the Judge’s decision for the following reasons.
[42] First, the appellant states that the assurances and protections found in the Act are not absolute and that they, given the allegations in the application for judicial review and the nature of the case [translation] “may yield to the duties of natural justice and procedural fairness” (Memorandum of Fact and Law of the appellant, para. 58).
[43] The appellant adds that because she no longer holds the same position within the public service of Canada, she has no power to take reprisals against the witnesses and the persons who made the disclosure. The risk of harm to the witnesses and the persons who made the disclosure is, for all intents and purposes, non-existent.
[44] According to the appellant, the confidentiality order, if upheld, will prevent the public from understanding the issues in her case and from passing judgment on the relevant facts. She adds that publication of the names of the witnesses and the persons who made the disclosure is of particular importance because publication will induce the witnesses and the persons who made the disclosure to tell the truth. In support of this argument, the appellant stated the following at paragraph 61 of her memorandum of fact and law:
[translation]
Considering the facts of this case, this is a substantial argument. The applicant claims, using plausible and consistent arguments, that the complaints against her are untrue and were completely fabricated by a group of employees dissatisfied with changes proposed by the applicant. The changes included the applicant’s proposed plan to change the linguistic profile of certain positions, to change the overtime policies and to require that a formal budget be submitted for spending allocated funds. The persons who made the disclosure and the witnesses, who remain anonymous, are entirely insulated from public scrutiny and the judicial process. They can therefore continue their crusade against the applicant without fear.
[45] Also, according to the appellant, the anonymity of the witnesses and the persons who made the disclosure will negatively affect her ability to mount a full defence. According to her, the identity of the witnesses and the persons who made the disclosure is crucial because that information will allow her to demonstrate the bias of the investigator and the Commissioner, an issue that she raised in her application for judicial review.
[46] Finally, relying on the Supreme Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC), at paragraphs 23 to 28, the appellant argues that the Judge erred in his interpretation of the Act and failed to consider the scope of her right to procedural fairness and the principles of natural justice. According to the appellant, protecting the confidentiality of the identity of the witnesses and the persons who made the disclosure remains subject to procedural fairness and the rules of natural justice.
VI. Legislation
[47] The relevant provisions of the applicable legislation are as follows:
Federal Court Rules, SOR/98-106
Règles des Cours fédérales, DORS/98-106
Motion for order of confidentiality
Requête en confidentialité
151(1) On motion, the Court may order that material to be filed shall be treated as confidential.
151(1) La Cour peut, sur requête, ordonner que des documents ou éléments matériels qui seront déposés soient considérés comme confidentiels.
151(2) Before making an order under subsection (1), the Court must be satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
151(2) Avant de rendre une ordonnance en application du paragraphe (1), la Cour doit être convaincue de la nécessité de considérer les documents ou éléments matériels comme confidentiels, étant donné l’intérêt du public à la publicité des débats judiciaires.
Public Servants Disclosure Protection Act, S.C. 2005, c. 46
Loi sur la protection des fonctionnaires divulgateurs d’actes répréhensibles, L.C. 2005, ch. 46
Preamble
Préambule
Recognizing that
Attendu :
the federal public administration is an important national institution and is part of the essential framework of Canadian parliamentary democracy;
que l’administration publique fédérale est une institution nationale essentielle au fonctionnement de la démocratie parlementaire canadienne;
it is in the public interest to maintain and enhance public confidence in the integrity of public servants;
qu’il est dans l’intérêt public de maintenir et d’accroître la confiance du public dans l’intégrité des fonctionnaires;
confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings, and by establishing a code of conduct for the public sector;
que la confiance dans les institutions publiques ne peut que profiter de la création de mécanismes efficaces de divulgation des actes répréhensibles et de protection des fonctionnaires divulgateurs, et de l’adoption d’un code de conduite du secteur public;
public servants owe a duty of loyalty to their employer and enjoy the right to freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms and that this Act strives to achieve an appropriate balance between those two important principles;
que les fonctionnaires ont un devoir de loyauté envers leur employeur et bénéficient de la liberté d’expression garantie par la Charte canadienne des droits et libertés et que la présente loi vise à atteindre l’équilibre entre ce devoir et cette liberté;
the Government of Canada commits to establishing a Charter of Values of Public Service setting out the values that should guide public servants in their work and professional conduct;
que le gouvernement du Canada s’engage à adopter une charte des valeurs du service public énonçant les valeurs qui guident les fonctionnaires dans leur conduite et leurs activités professionnelles,
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Sa Majesté, sur l’avis et avec le consentement du Sénat et de la Chambre des communes du Canada, édicte :
. . .
. . .
Duty of chief executives
Obligations de l’administrateur général
11(1) Each chief executive must
11(1) L’administrateur général veille à ce que :
(a) subject to paragraph (c) and any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
a) sous réserve de l’alinéa c) et de toute autre loi fédérale applicable, de l’équité procédurale et de la justice naturelle, l’identité des personnes en cause dans le cadre d’une divulgation soit protégée, notamment celle du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible;
(b) establish procedures to ensure the confidentiality of information collected in relation to disclosures of wrongdoings; and
b) des mécanismes visant à assurer la protection de l’information recueillie relativement à une divulgation soient mis en place;
(c) if wrongdoing is found as a result of a disclosure made under section 12, promptly provide public access to information that
c) dans les cas où il est conclu par suite d’une divulgation faite au titre de l’article 12 qu’un acte répréhensible a été commis, soit mise promptement à la disposition du public de l’information faisant état :
(i) describes the wrongdoing, including information that could identify the person found to have committed it if it is necessary to identify the person to adequately describe the wrongdoing, and
(i) de l’acte répréhensible, y compris l’identité de son auteur si la divulgation de celle-ci est nécessaire pour en faire état adéquatement,
(ii) sets out the recommendations, if any, set out in any report made to the chief executive in relation to the wrongdoing and the corrective action, if any, taken by the chief executive in relation to the wrongdoing or the reasons why no corrective action was taken.
(ii) des recommandations contenues, le cas échéant, dans tout rapport qui lui a été remis et des mesures correctives prises par lui-même ou des motifs invoqués pour ne pas en prendre.
Exception
Exception
11(2) Nothing in paragraph (1)(c) requires a chief executive to provide public access to information the disclosure of which is subject to any restriction created by or under any Act of Parliament.
11(2) L’alinéa (1)c) n’oblige pas l’administrateur général de mettre à la disposition du public de l’information dont la communication est restreinte sous le régime d’une loi fédérale.
. . .
. . .
Duties
Attributions
22 The duties of the Commissioner under this Act are to
22 Le commissaire exerce aux termes de la présente loi les attributions suivantes :
. . .
. . .
(e) subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings;
e) sous réserve de toute autre loi fédérale applicable, veiller, dans toute la mesure du possible et en conformité avec les règles de droit en vigueur, à ce que l’identité des personnes mises en cause par une divulgation ou une enquête soit protégée, notamment celle du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible;
. . .
. . .
Confidentiality
Secret
44 Unless the disclosure is required by law or permitted by this Act, the Commissioner and every person acting on behalf of or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties under this Act.
44 Sauf si la communication est faite en exécution d’une obligation légale ou est autorisée par la présente loi, le commissaire et les personnes agissant en son nom ou sous son autorité sont tenus au secret en ce qui concerne les renseignements dont ils prennent connaissance dans l’exercice des attributions que leur confère la présente loi.
. . .
. . .
Access to Information Act, R.S.C. 1985, c. A-1
Loi sur l’accès à l’information, L.R.C. (1985), ch. A-1
. . .
. . .
Court to take precautions against disclosing
Précautions à prendre contre la divulgation
47(1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
47(1) Dans les procédures découlant des recours prévus aux articles 41 et 44, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or
a) des renseignements qui, par leur nature, justifient, en vertu de la présente partie, un refus de communication totale ou partielle d’un document;
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists.
b) des renseignements faisant état de l’existence d’un document que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’il existait ou non.
Disclosure of offence authorized
Autorisation de dénoncer des infractions
47(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Court’s opinion, there is evidence of such an offence.
47(2) Si, à son avis, il existe des éléments de preuve touchant la perpétration d’une infraction fédérale ou provinciale par un administrateur, un dirigeant ou un employé d’une institution fédérale, la Cour peut faire part à l’autorité compétente des renseignements qu’elle détient à cet égard.
. . .
. . .
Privacy Act, R.S.C. 1985, c. P-21
Loi sur la protection des renseignements personnels, L.R.C. (1985), ch. P-21
Court to take precautions against disclosing
Précautions à prendre contre la divulgation
46(1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
46(1) À l’occasion des procédures relatives aux recours prévus aux articles 41, 42 ou 43, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
(a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or
a) des renseignements qui justifient un refus de communication de renseignements personnels demandés en vertu du paragraphe 12(1) ou de renseignements contenus dans un document demandé sous le régime de la Loi sur l’accès à l’information;
(b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists.
b) des renseignements faisant état de l’existence de renseignements personnels que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’ils existaient ou non.
Disclosure of offence authorized
Autorisation de dénoncer des infractions
46(2) The Court may disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Court’s opinion, there is evidence of such an offence.
46(2) Si, à son avis, il existe des éléments de preuve touchant la perpétration d’une infraction fédérale ou provinciale par un administrateur, un dirigeant ou un employé d’une institution fédérale, la Cour peut faire part à l’autorité compétente des renseignements qu’elle détient à cet égard.
VII. Issues
[48] The only issue in this case is whether the Judge committed an error of law or a palpable and overriding error in allowing the appeal from the Prothonotary’s decision.
VIII. Analysis
[49] There is no dispute between the parties regarding the applicable standards of review in this case. In Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331, this Court found that the discretionary decisions of prothonotaries and judges of the Federal Court were subject to the standards set out by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, that is, the standard of correctness for questions of law and questions of mixed fact and law, where there is an extricable question of law, and the standard of palpable and overriding error for questions of fact and questions of mixed fact and law raising no question of law.
[50] As I indicated at the beginning of my reasons, I am of the opinion that the Judge was wrong to intervene. Before I explain why I reached this conclusion, it is helpful to review the principles applicable to orders of confidentiality that may be made pursuant to Rule 151 of the Rules. Rule 151 stipulates that the Court may make such an order, notwithstanding the public interest in open and accessible court proceedings, if it is satisfied that the material in question should be treated as confidential.
[51] I will therefore focus primarily on two Supreme Court of Canada decisions: Sierra Club and Bragg.
[52] In Sierra Club, the Supreme Court had to decide whether the Federal Court and this Court had erred in refusing to issue a confidentiality order in respect of commercial documents that contained, according to the appellant (Atomic Energy of Canada Limited), confidential information. At paragraph 35 of his reasons for the Court, Justice Iacobucci stated the issues as follows:
A. What is the proper analytical approach to be applied to the exercise of judicial discretion where a litigant seeks a confidentiality order under Rule 151 of the Federal Court Rules, 1998?
B. Should the confidentiality order be granted in this case?
[53] After providing a summary of the reasons of the Federal Court and of this Court in support of those decisions to refuse to issue the confidentiality order, Justice Iacobucci, relying on Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 1996 CanLII 184 (SCC), para. 23 [New Brunswick], stated that, in his opinion, because the link between openness in judicial proceedings and freedom of expression has been firmly established in our law, the order sought by the appellant to limit public access to confidential documents would clearly infringe the guarantee found in paragraph 2(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[54] Justice Iacobucci went on to state that the analytical approach to the exercise of discretion under Rule 151 must echo the principles laid out in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 1994 CanLII 39 (SCC) [Dagenais] and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 [Mentuck] and must be tailored to the rights and interests engaged in the case.
[55] After reviewing the principles laid out in Dagenais, New Brunswick and Mentuck, Justice Iacobucci stated, at paragraph 53 of his reasons, that a confidentiality order issued under Rule 151 should only be granted when
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
[56] Also, at paragraph 54 of his reasons, Justice Iacobucci stated, as he did at paragraph 34 of his reasons in Mentuck, that the first branch of the test contained several important elements, including that the risk in question had to be a serious one or, as stated by Chief Justice Lamer at page 878 of Dagenais, the risk had to be “real and substantial”, that the risk in question had to be well grounded in the evidence, and that the risk had to, in that case, pose a serious threat to the appellant’s commercial interest relating to the objective of preserving contractual obligations of confidentiality in respect of confidential documents. It should be noted that in Sierra Club, the appellant claimed that the disclosure sought would cause irreparable harm to its commercial interests.
[57] Given the conclusion of the motions judge, not contradicted by this Court on appeal from his decision, that the information contained in the documents in question was clearly of a confidential nature and would be of interest to the appellant’s competitors, Justice