Indexed as Energy Probe v. Canada (Attorney General)
May 1, 1992
Energy Probe, Plaintiffs, and
The Attorney General for Canada, Defendant, and
Ontario Hydro and New Brunswick Power Corporation, Intervenors
 O.J. No. 892
Action No. 46878/90Q
Also reported at:
10 C.P.C. (3d) 58
Ontario Court of Justice – General Division
Heard: February 5 and March 24, 1992
Judgment: May 1, 1992
Practice — Discovery — Production of documents — Government documents — Cabinet documents — Defences — Crown privilege — Public interest privilege — Statutory limits — Division of powers.
Application for production of federal cabinet and interprovincial cabinet documents in a challenge of the Nuclear Liability Act.
HELD: Application dismissed. The tenuous relevance of the documents was insufficient to justify disclosure. To routinely order production of such documents because it could do no harm or merely because the documents were vaguely relevant would potentially do serious harm to the future of cabinet and intergovernmental discussions and would fly in the face of the test in section 37 of the Canada Evidence Act. There was no jurisdiction to order production of a Privy Council document, as section 39 provided that this was entirely within the Clerk’s jurisdiction.
STATUTES, REGULATIONS AND RULES CITED:
Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37(2), 39. Nuclear Liability Act, R.S.C. 1985, c. N-28.
Theresa McClenaghan, for the Plaintiff.
David Sgayias, Q.C., for the Defendant.
Neil Finkelstein and Jeff Galway, for the Intervenors.
JARVIS J.:— This application initially proceeded before me on February 5, 1992. Involved was the production of Federal Cabinet and Inter-Provincial Cabinet documents regarding the question of nuclear energy in Canada. The action involves a challenge to the Nuclear Liability Act R.S.C. 1985, c. N-28, which came into force in 1970. Energy Probe alleges that the Act is ultra vires the legislative jurisdiction of the Federal Government and violates several of the protections of the Canadian Charter of Rights and Freedoms.
Energy Probe took the position that the documents are relevant to the issues in this action and should be produced. The Attorney General for Canada responded that the documents, while marginally relevant, ought not to be produced as a matter of Crown privilege. The reason advanced for non-production, as set out in the Attorney General’s factum, was the protection of the
public interest in maintaining the integrity of communications, discussions and deliberations between the provinces and the government of Canada and thereby encouraging relations between the two levels of government.
Disclosure of such documents is argued to be antithetical to the frankness and candour that is vitally important to such deliberations. In our present political climate the importance of these relations can not be ignored.
When the motion initially proceeded on February 5, 1992, counsel for Energy Probe advanced her argument for production of the documents without having had the benefit of access to the documents themselves. As her argument proceeded, it occurred to me that it might be more helpful if she had access to the actual documents. Eventually an agreement was reached whereby copies of the documents could be provided to her and to the Court on stringent terms as to their use. My order included terms that only the counsel actually engaged in this application on behalf of Energy Probe could have access to the documents and also that the documents would not be referred to in any way in written submissions to the Court.
When the matter returned before me on March 24, 1992, counsel for Energy Probe was able to argue her position with reference to the actual documents. Argument was thereby more focused than it could otherwise have been.
While there are many obvious situations in which interim production of privileged documents of this nature might not be advisable, it was beneficial in this case and I commend the use of this device where the Crown agrees.
The test for disclosure of documents, such as those in question, is set out in s. 37(2) of the Canada Evidence Act R.S.C. 1985, c. C-5. A court can order disclosure,
subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest. [emphasis added]
The Supreme Court of Canada in Carey v. The Queen,  2 S.C.R. 637, set out what factors the court is to consider when determining the public interest in disclosure and the public interest in Crown Privilege. These factors are:
1) the level of the decision-making process
2) the nature of the policy concerned
3) the particular contents of the documents
4) the time when disclosure is sought
5) the importance of producing documents in the interests of the administration of justice having regard to:
i) the importance of the case
ii) The need or desirability of producing documents to ensure adequately and fairly represented.
iii) the ability to ensure that only the particular facts relating to the case are revealed
6) any allegation of improper conduct by the executive branch towards a citizen.
In Leeds et al. v. The Queen in right of Alberta (1990), 69 D.L.R. (4th) 681 the Alberta Queen’s Bench held that the court should consider these same principles when making a determination under s. 37.
The documents in question were styled “Cabinet Documents”. They were largely Minutes of meetings between Federal/Provincial ministry officials and correspondence passing between Ministers and their representatives on the nuclear issue. The date of origin of the documents ranged from 1978 to 1988.
Energy Probe claimed that the documents were relevant in the following ways:
– to reflect the Provincial concerns with respect to conflicting jurisdiction over this important question;
– to indicate that alternatives have been considered to nuclear power and that such alternatives, in fact, exist;
– to indicate that the Federal Government’s resolve to properly fund nuclear research and development was less than firm.
– to demonstrate that the review by the Federal Government of the Chernobyl nuclear disaster was inadequate.
In response, the Attorney General argued that many of the documents were too old to be of assistance, that they predated the legislation in question and were in no way part of the process which led to the passing of the Nuclear Liability Act. Some of the documents refer to other legislation which did not proceed. The Attorney General also submitted that many of the documents concerned continuation of the Candu reactor programme and that this was essentially irrelevant to consideration of the legislation in question. Insofar as Chernobyl was concerned, the Attorney General submitted that a review did, in fact, take place and the subsequent report is a public document. Any Minutes of discussions which might have taken place before the investigation was convened are of extremely limited utility. In addition, it was submitted that other evidence is available to support the argument of the plaintiff with respect to this issue.
In general, it was submitted that the relevance of the Cabinet documents to the issues in the action, and their utility, is so slight as to overwhelmingly militate in favour of non-production. In other words, the public interest in disclosure does not outweigh the specified public interest which is the protection of the sanctity of Federal/Provincial communications and negotiations.
On the basis of my own review of the case law and the documents for which production is sought and on the basis of the submissions made, I find that the Crown privilege should be honoured in the circumstances of this case. The documents are of tenuous relevance at best. It is trite to say that government funding of research and development is uncertain, that nuclear energy is dangerous in nature, that alternative energy sources are available and that arguments can be made to construe nuclear energy as an issue falling within the jurisdiction of either the federal or provincial governments. Confidential government documents are hardly required to demonstrate such assertions.
Counsel for Energy Probe did not attempt to make light of the importance of the confidentiality of Federal/Provincial ministry discussions. It was not suggested that I should not give serious consideration to this reality. I am convinced that to routinely order production of such documents merely because they can do no harm or merely because they are only vaguely relevant would potentially do serious harm to the future of such discussions and to fly in the face of the test set out in Section 37 of the Canada Evidence Act.
In addition, I was asked to rule on several disputes arising on the examinations for discovery. The document which purported to have originated with the Privy Council had been referred to in an article of the Toronto Globe & Mail. Energy Probe submitted that the privilege had been lost in view of the possession of the document by a third party. I take the view that I have no jurisdiction to order production of the document as this is a matter entirely under the jurisdiction of the Clerk of the Privy Council under Section 39(1) of the Canada Evidence Act. The Attorney General takes the position that the decision of the Clerk is final and I have no jurisdiction to go beyond it and I accept that proposition.
The final question arose on the examination for discovery of a representative of the Government of New Brunswick. That representative had refused to compare the plans of the Chernobyl plant and the plans of a New Brunswick facility and give an opinion as to whether or not the New Brunswick plant was built to withstand a greater force than that which occurred at Chernobyl. I take the view that this calls for an expert opinion based upon an hypothesis and for this reason the question was improper.
For these reasons the application is dismissed. The
documents in the hands of Energy Probe shall be destroyed. I
may be spoken to regarding costs.