Certain requested records were protected by litigation privilege

Federal appeal | Administrative Law

Freedom of information

Certain requested records were protected by litigation privilege 

Document requester and his paper mill were charged with 13 violations of Fisheries Act (Can.). All charges were ultimately declared nullities. Requester and company commenced action against federal government and others alleging fraud, conspiracy and perjury. Requester submitted request under Access to Information Act (Can.) (AIA) for all documents from, to, or created by Crown prosecutor, G. Federal government provided number of documents but claimed various exemptions, including litigation privilege. Requester’s application for judicial review was dismissed by Federal Court (FC) judge who held, among other things, that certain portions of documents were protected by litigation privilege. Requester appealed. Appeal dismissed. FC judge did not err in deciding that certain records were protected by litigation privilege. Majority of withheld records (or portions thereof) were communications either to or from counsel with Department of Justice (DOJ) or law firm defending requester’s civil claim which discussed civil litigation. Since civil lawsuit was currently before court, litigation was still alive and litigation privilege still existed and applied. Records created in course of prosecution but intertwined with discussions of civil claim were also protected from disclosure by litigation privilege. Exemptions claimed under s. 23 of AIA were correctly invoked and DOJ reasonably exercised discretion not to disclose withheld portions. 

Blank v. Canada (Minister of Justice) (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., C. Michael Ryer J.A., and Yves de Montigny J.A., A-378-15) Decision at 256 A.C.W.S. (3d) 505 was affirmed. 268 A.C.W.S. (3d) 2. 


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