Federal Appeal


Distinction between confidentiality and immunity from having to produce document

Appellants claimed Sage-grouse was endangered species and wrote to Environment Minister, demanding he recommend emergency order under s. 80 of Species at Risk Act (Can.) (“SRA”), and identify further critical habitat through amendment to recovery strategy. Minister failed or refused so appellants commenced application requesting order of mandamus in relation to failure to recommend emergency order or amend recovery strategy as well as judicial review of Minister’s refusals, concluding with request for document production. Respondents provided certification and objection, claiming government’s decision not complete so premature to conclude Minister refused or failed to exercise duty. Certification and objection stated Governor-in-Council has power to make emergency order, but decision protected by cabinet confidentiality. Certification and objection stated that documents before Minister in relation to s. 80 subject to cabinet confidence and objected to production. Appellants filed motion seeking order directing respondents to advise whether Minister had made decision and order declaring certification and objection invalid. Prior to hearing, respondents filed certificate pursuant to s. 39 of Canada Evidence Act (“CEA”), objecting to production of memorandum regarding consideration of emergency order and proposals to council on basis they contained confidences of Queen’s Privy Council. Motion dismissed, but appellants’ appeal allowed. Order for document production under Rule 317 of Federal Court Rules (Can.), cannot be made where no order which can be subject of application. In context of mandamus, only failure to make decision is in issue and documents before decision-maker, therefore was irrelevant. Appellants not entitled to document production under Rule 317. There is distinction between confidentiality and immunity from having to produce document or communication for purposes of litigation. Confidentiality alone does not confer privilege or immunity. Respondents claimed Crown immunity solely on basis of s. 39 of CEA, but s. 80 of SRA leaves open possibility that Minister may not be satisfied that species faces imminent threat, in which case Minister entitled to decide that no recommendation for emergency order should be made. Minister’s decision not to make recommendation not within terms of s. 39 of CEA. Nor does s. 39 apply if Minister not yet decided whether to make recommendation. No legal basis for Minister’s refusal to disclose whether or not decision had been made.

Alberta Wilderness Assn. v. Canada (Attorney General) (Aug. 1, 2013, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and Robert M. Mainville J.A., File No. A-322-12) 229 A.C.W.S. (3d) 874.

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