Her Majesty in Right of Newfoundland v. Labrador, 2021 NLSC 79

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador (Indigenous Affairs and Reconciliation) v. Newfoundland and L abrador (Information and Privacy Commissioner) , 2021 NLSC 79 Date : June 2, 2021 Docket : 202001G4584 Between: Her Majesty in Right of Newfoundland and Labrador as represented by the Minister of the Office of Indigenous Affairs and Reconciliation Applicant And: Michael Harvey, in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador RESPONDENT AND: INNU NATION INC. INTERVENOR Before: Justice Daniel M.

Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 3, 2021

Summary: In support of an application for a declaration that it did not need to comply with the Commissioner’s recommendation to release records under ATIPPA, 2015 , the Government filed two Affidavits. The Intervenor applied to strike portions of the Affidavits because they contained unqualified opinion, legal argument or opinion, speculation, or scandalous or irrelevant assertions.

The Court struck opinions related to third party interests but dismissed the Application in respect of opinions regarding matters within the ambit of Government expertise; struck legal argument; declined to decide whether certain opinions constituted impermissible speculation; and struck irrelevant assertions of fact.

Appearances: David G. Rodgers Appearing on behalf of the Applicant Julia Brown Appearing on behalf of the Intervenor Andrew A. Fitzgerald Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Bellows v. Quik Cash Ltd., 2004 NLSCTD 191; R. v. Mohan, 1994 SCC 80; White Burgess Langille Inman v.Abbott and Haliburton Co., 2015 SCC 23; R. v. Bingley, 2017 SCC 12; Canadian Broadcasting Corp. v. Newfoundland and Labrador(Department of Child, Youth and Family Services), 2013 NLTD(G) 175; Mastropietro v.

Newfoundland and Labrador (Minister of theDepartment of Education), 2016 NLTD(G) 156; Merck Frosst (Canada) Ltd. v. Canada (Health), 2012 SCC 3; Canada (InformationCommissioner) v. Canada (Prime Minister), (FC), 1992 CarswellNat 185, [1993] 1 F.C. 427; Canada Post Corp. v.Canada (Minister of Public Works & Government Services), 2004 FC 270; Brainhunter (Ottawa) Inc. v. Canada (Attorney General),2009 FC 1172; Westerhof v. Gee Estate, 2015 ONCA 206; Kon Construction Ltd. v. Terranova Developments Ltd., 2015 ABCA 249;Laing v. Sekundiak, 2015 MBCA 72; Saskatchewan v. Racette, 2020 SKCA 2; Air Atonabee Ltd. v.

Canada (Minister of Transport),1989 CarswellNat 585, [1989] F.C.J. No. 453; Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA52; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015 c. A-1.2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is an evidentiary ruling in an access to information matter.

The Intervenor has applied for an Order striking portions ofthe Affidavit evidence filed by the Government in support of its Application for a declaration that certain documents are exempt fromdisclosure. [2] The Innu Nation requested disclosure of documents in the hands of the Government. The documents were all cited in a reportpublished by the NunatuKavut Community Council (“NCC”). The Government responded to the request by providing some of thedocuments but refusing to disclose 16 others. The Government released some of the requested documents but not others. The InnuNation complained to the Commissioner.

The Commissioner conducted a formal investigation and then released a report in which herejected the Government arguments against disclosure and recommended that the records be released to the Innu Nation. [3] The Government applied to this Court under the Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015 c. A-1.2, (ATIPPA, 2015), s. 50(2) for a declaration that it is not required to comply with the recommendation because it is authorized orrequired to refuse access to the records.

ATIPPA, 2015 accords the Innu Nation, as requestor of the records, the status of Intervenor inthis proceeding. [4] The access to information regime encoded in the Act provides citizens with a right of access to records held by Government,with limited specified exceptions to preserve the efficient functioning of Government, to accommodate rights and privileges of others,and to protect confidential proprietary and other rights of third parties. [5] The Government’s position is that the documents requested by the Innu Nation fall within the exemptions in the Act intendedto protect relations between the Government and other governments, or to protect the confidential information of a third party. [6] The Government filed two Affidavits in support of its position.

The Innu Nation applies to strike portions of those Affidavitson the ground that the paragraphs in question are inadmissible because they contain unqualified opinion, legal argument, speculation, orscandalous or irrelevant assertions. [7] In order to decide this evidentiary application, I had to consider the procedural framework for the hearing of the Governmentapplication for a declaration and define the issues that I will have to resolve on that application.

Having scrutinized the GovernmentAffidavits against the issues within that framework, I have decided that some portions of the Affidavits ought to be struck.

ISSUES 1. Should certain paragraphs of the Gover and Mellor Affidavits be struck because they contain opinion that is not qualified under the Mohan criteria? 2. Should certain paragraphs of the Gover and Mellor Affidavits be struck because they contain legal argument or opinion? 3. Should certain paragraphs of the Gover and Mellor Affidavits be struck because they constitute speculation? 4. Should certain paragraphs of the Gover and Mellor Affidavits be struck because they set out irrelevant or scandalous assertions?

ANALYSIS Procedural Framework [ 8 ] ATIPPA, 2015 says that a person may request access to any record in the custody of a public body. The decision as to whether to provide access to the record is made by the head of the public body, as defined in the Act . The head can decide to provide or refuse to provide access to the record. Access is the general rule and that rule can only be disregarded on the basis of defined exceptions. A requestor who is not given access may make a complaint to the commissioner, who is required to investigate the complaint.

On that investigation, the public body has the burden to prove that the requestor has no right of access to the record or part of the record. The commissioner may agree with the public body, or recommend that the requestor be granted access, or that the decision be reconsidered. [ 9 ] If the commissioner recommends that the public body provide access to the requested record, then under ATIPPA , 2015 s. 50, the public body can either comply with the recommendation or apply to this Court for a declaration that it is not required to comply with the recommendation.

This is the process invoked by the Government in this proceeding. [ 10 ] The procedure on an application for a declaration is, according to s. 50(5), the same (with necessary modifications) as the process for appeals by a requestor or a third party. The salient sections of the Act are as follows: 57. Practice and procedure The practice and procedure under the Rules of the Supreme Court, 1986 providing for an expedited trial, or such adaption of those rules as the court or judge considers appropriate in the circumstances, shall apply to the appeal. 59.

Conduct of appeal 59(1) The Trial Division shall review the decision, act or failure to act of the head of a public body that relates to a request for access to a record or correction of personal information under this Act as a new matter and may receive evidence by affidavit. 59(2) The burden of proof in

section 43 applies, with the necessary modifications, to an appeal. 60. Disposition of appeal 60(1) On hearing an appeal the Trial Division may (

a) where it determines that the head of the public body is authorized to refuse access to a record under this Part and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, dismiss the appeal; (

b) where it determines that the head of the public body is required to refuse access to a record under this Part, dismiss the appeal; or (

c) where it determines that the head is not authorized or required to refuse access to all or part of a record under this Part, (

i) order the head of the public body to give the applicant access to all or part of the record, and (ii) make an order that the court considers appropriate.

60(2) Where the Trial Division finds that a record or part of a record falls within an exception to access under this Act and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, the court shall not order the head to give the applicant access to that record or part of it, regardless of whether the exception requires or merely authorizes the head to refuse access. [ 11 ] ATIPPA, 2015 , s. 57, provides that this matter must proceed, with appropriate adaptation, as an expedited trial.

The Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D , provides that on expedited trial the Court may make certain specified procedural orders, intended to make the process more efficient. [ 12 ] I have not been asked to date to make any orders regarding the conduct of this proceeding.

For the purposes of the evidentiary Application now before me, the most important procedural points flowing from ATIPPA, 2015 and Rule 17A.09 are as follows: • The Court is to review the decision to refuse access to the records as a new matter; • The burden of proof is on the Applicant as head of the public body to prove that the Intervenor has no right of access to the record it requested; • Evidence will be adduced by Affidavit. [ 13 ] As to the latter point, the Rules make express provision governing the use of Affidavits in this Court. 48.02 Contents of Affidavit 48.02(1) An affidavit used on an application may contain statements as to the belief of the deponent with the sources and grounds thereof. 48.02(2) Unless the Court otherwise orders, an affidavit used on a trial shall contain only such facts as the deponent is able of his or her own knowledge to prove. 48.05 Affidavit of body corporate or partnership 48.05(1) An affidavit may be made on behalf of a body corporate or association by an officer, servant or agent thereof. [ 14 ] An expedited trial is still a trial.

Therefore, Rule 48.02(1) governs and Affidavit evidence may generally only state such facts as the deponent is able of his or her own knowledge to prove. [ 15 ] However, that general rule must be read with Rule 48.05(1) that provides that an affidavit on behalf of an association such as the public body may be made by an officer. The provision for an affidavit to be made on behalf of an association by an officer allows for the officer to include statements that are within the knowledge of the association, although not directly within the knowledge of the officer.

The knowledge must be within the association; Rule 48.05(1) is not a general license for hearsay. The Issues Raised on the Application for a Declaration [ 16 ] The access to information regime provides that access is the general rule and can only be refused if one of the exceptions in the Act apply. The public body has the burden to prove that the records requested fall within one of the exceptions. [ 17 ] The Province relies in the alternative on these exceptions: • Section 34(1)(a): The disclosure could reasonably be expected to harm intergovernmental relations; • Section 34(1)(

b) and s. 39(1)(b): The disclosure would reveal information received in confidence; • Section 35(1)(d), s. 39(1)(c)(

i) and (iii): The disclosure could reasonably be expected to harm a third party; • Section 35(1)(

g) and (h): The disclosure could reasonably be expected to harm the economic or financial interests of the Province; • Section 39(1)(c)(ii): The disclosure could result in similar information no longer being supplied to the Province. [ 18 ] The Province filed two Affidavits in support of its Application for a declaration. The first Affiant is Aubrey Gover, Q.C., Deputy Minister of Indigenous Affairs and Reconciliation, who was head of the public body for the purpose of the ATIPPA request. The second is Justin Mellor, a solicitor in the Department of Justice.

This Application to Strike [ 19 ] The Innu Nation applies to strike almost all of the Gover Affidavit and some paragraphs of the Mellor Affidavit that it says are inadmissible opinion, speculation or hearsay; are legal argument; or are scandalous or irrelevant. This Application is grounded in Rule 48.11: 48.11 Scandalous, etc., matter in affidavit The Court may order any matter that is scandalous, irrelevant or otherwise oppressive to be struck out of an affidavit.

[20] In general, the position of the Province is that the impugned paragraphs of the Affidavits ought to be admitted as evidence ofthe beliefs and facts that informed the decision to refuse access to the records. [21] For context, it is noteworthy that a foundational assertion running through the Affidavit evidence filed by the Province is thatthe Innu Nation and NCC have competing land claims and disclosure of work done by NCC would give the Innu Nation an undueadvantage in that competition. [22] The parties agree that the following statement of legal principles, adopted and applied by Goulding, J. in Bellows v.

Quik CashLtd., 2004 NLSCTD 191, at paras. 34 and 35, apply to guide the Court in determining whether to strike the impugned portions of theAffidavits: 34 In Adelaide Capital Corp. v. Smith's Field Manor Development Ltd., 1994 CarswellNS 136 (N.S. S.C.) Saunders, J. found that"scandalous, irrelevant or otherwise oppressive" is disjunctive and therefore, either scandalous or irrelevant or some other oppression willsuffice in order to reject a defective affidavit (par. 25). 35 The principles with respect to affidavit evidence are succinctly summarized by Shaughnessy, J. in Chopik v.

Mitsubishi PaperMills Ltd., [2002] O.J. No. 2780 (Ont. S.C.J.) as follows: [26] 1. Affidavits on a motion that fail to state the source of the deponent's information and belief will be struck if the paragraphdeals with a contentious matter; but it may be saved by Rule 1.04 if it deals with non-contentious matters and the exhibits to theaffidavit or other evidence filed on the motion reveal the source of the information and belief. (Cameron v. Taylor (1992), (ON SC), 10 O.R. (3d) 277 Ont. Ct. (Gen. Div.). 2. Improper hearsay, argument and irrelevant information should not be contained in an affidavit.

Similarly, legal argumentbelongs in a factum or brief, not an affidavit. Legal submissions contained in affidavits are superfluous and should be struck.(Canada Post Corp. v. Smith (1994), (ON SC), 20 O.R. (3d) 173 at 188 (Div. Ct.) And Czak v. Mokos (1995), (ON SC), 18 R.F.L. (4th) 161 at 165 (Master). 3. Offensive allegations made for the purposes of prejudicing another party and inflammatory rhetoric directed at a party arescandalous and should also be struck. (Ontario (Ministry of Natural Resources) v. Ontario Federation of Anglers andHunters (2001), 143 O.A.C. 103 at 111-112 (S.C.J.) Aff'd. [2001] O.J.

No. 5320 (Div. Ct.)." 4. Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to thefair hearing of the motion or application. A party should not be put to the needless expenditure of time and resources inresponding to evidence which can have no impact on the outcome of the proceeding. (Noble China Inc. v. Lei) (1998), (ON SC), 42 O.R. (3d) 69 at 94-95 (Gen.

Div.). … Opinion [23] The Innu Nation says that 50 paragraphs of the Gover Affidavit and four paragraphs in the Mellor Affidavit constituteinadmissible opinion. [24] The Province asserts a twofold response. First, it says that the paragraphs in issue are not opinion but mere statements of thefacts relied upon by the Province in deciding to refuse access to the records and to not comply with the recommendation of theCommissioner.

Second, the Province says that even if these paragraphs contain opinions, then the Affiants are qualified to express them. [25] As a general rule, witnesses are only permitted to testify as to matters of fact within the perception of their senses. Testimonythat goes beyond perception to include deductions, inferences, impressions or conclusions drawn from facts is inadmissible.

There areexceptions to this general rule, most notably the recognition that on limited topics lay people, and, on topics requiring specializedexpertise a properly qualified expert, ought to be able to express opinion. [26] The paragraphs in issue do contain expressions of opinion. These assertions go beyond statements of fact and includedeductions, inferences, impressions or conclusions. [27] The Innu Nation says that the Affiants could not be qualified as experts under the modern two-stage test for reception of expertevidence set down by the Supreme Court of Canada in R. v.

Mohan, 1994 SCC 80 and White Burgess Langille Inman v. Abbott andHaliburton Co., 2015 SCC 23, and recently summarized by that Court in R. v. Bingley, 2017 SCC 12, at paras. 13-17. [28] The Innu Nation says that on application of that two stage analysis the opinions of Mr. Gover and Mr. Mellor are notadmissible because they are not relevant, are not necessary and are not the product of independent, unbiased experts.

[29] Evidence of witnesses from a public body or from a third party regarding the application of exemptions and particularly on theeffect on government operations or relations, or on harm to third party interests has been routinely accepted in access to informationcases without being subjected to the Mohan criteria. Counsel did not cite any case where the admissibility of such evidence has beenexpressly considered. However, merely saying that such evidence has been uncritically accepted in the past is not sufficient to deal withthe objection to admissibility.

The position of the Innu Nation in this evidentiary application demands principled consideration as towhy such evidence has been accepted without application of the Mohan criteria. [30] I begin my analysis of this question by noting this admonition from the Supreme Court in Bingley: 17 The expert opinion admissibility analysis cannot be "conducted in a vacuum": Abbey, at para. 62. Before applying the two-stageframework, the trial judge must determine the nature and scope of the proposed expert opinion.

The boundaries of the proposed expertopinion must be carefully delineated to ensure that any harm to the trial process is minimized: see Abbey, at para. 62; R. v.

Sekhon, 2014SCC 15, [2014] 1 S.C.R. 272 (S.C.C.), at para. 46. [31] The nature and scope of the proffered opinion evidence in this case must be considered within the structure of ATIPPA, 2015and the application for a declaration under s. 50 of the Act sought by the Province. [32] The role of the Court on this application was succinctly described by Butler, J. of this Court in Canadian Broadcasting Corp. v.Newfoundland and Labrador (Department of Child, Youth and Family Services), 2013 NLTD(G) 175, at para. 4: 4 Counsel are also agreed that by virtue of both s. 63 (2) of ATIPPA and the Supreme Court of Canada's decision of Merck FrosstCanada Ltée c.

Canada (Ministre de la Santé), 2012 SCC 3 (S.C.C.) at para. 53, my determination of these issues involves a hearing denovo. I accept that my role in this case is to determine whether the appropriate exemption has been applied correctly to the contestedrecord. [33] I agree with the finding by Murphy, J. in Mastropietro v.

Newfoundland and Labrador (Minister of the Department ofEducation), 2016 NLTD(G) 156 at para. 23 that the description by Butler, J. of the process under the predecessor legislation applies tothe process under ATIPPA, 2015. [34] As the Supreme Court of Canada pointed out in the leading case of Merck Frosst, Canada (Information Commissioner) v.Canada (Prime Minister), (FC), 1992 CarswellNat 185, [1993] 1 F.C. 427, at para. 97, the exemptions under the Actmay be broadly classified as either class-based or harm-based.

Where a party relies on a class-based exemption, then that party mustdemonstrate that the record at issue fits in that class. This will usually be a matter of fact. [35] However, where the exemption at issue is harm-based, then whether the exemption applies depends on prediction of futureconsequences. It is axiomatic that future consequences cannot be established as a matter of fact.

The question then arises as to themanner in which the party advocating for the application of an exemption predicated on future consequences must establish the basis forits position. [36] Clearly, the party advocating for an exemption can establish facts on which a prediction of future consequences could bebased.

The questions raised by this application are whether that is all that can be adduced in evidence, or whether the party advocatingfor the exemption should be allowed to introduce evidence that suggests or articulates inferences that can be drawn from established fact,and, if so, by whom. [37] In a relatively early access to information case, although one cited with approval by the Supreme Court of Canada in MerckFrosst, 427, at para. 34, Rothstein, J., then of the Federal Court, distilled from the Canadian access to information jurisprudence a non-exhaustive list of “guidelines that can be useful in assessing whether or not there is a reasonable expectation of probable harm fromdisclosure in a given situation and the procedures to be followed”.

He included in this list: 34 … 10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record: Ternettev. Canada (Solicitor General) (T-522-84) November 22, 1991, at p. 31 (T.D.) [reported at (FC), [1992] 2 F.C. 75 ]and Merck Frosst Canada Inc. v.

Canada (Department of Health & Welfare, Protection Branch ) (T-1442-87) June 21, 1988 at p. 3(T.D.) [reported at 22 C.P.R. (3d) 177 ]. [38] Rothstein J. had this further to say about the nature of proof required to show an expectation of harm: 122 In the case at bar, what is being considered is the validity of an opinion of a government official that disclosure of specificgovernment documents could reasonably be expected to result in harm to the Government's conduct of federal-provincial affairs.

Whileno general rules as to the sufficiency of evidence in a s. 14 case can be laid down, what the court is looking for is support for thehonestly held but perhaps subjective opinions of the Government witnesses based on general references to the record. Descriptions ofpossible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between thedisclosure of specific information and the harm alleged. The court must be given an explanation of how or why the harm alleged wouldresult from disclosure of specific information.

If it is self-evident as to how and why harm would result from disclosure, littleexplanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specificand substantiated the evidence, the stronger the case for confidentiality.

The more general the evidence, the more difficult it would befor a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged. [39] The practice implicit in the reported cases is consistent with this requirement to provide affidavit evidence of clear rationale forthe application of harms-based exemptions. To the extent that the content of that requirement has come up at all, it has been in adescription of the kind of evidence that does not fulfill this requirement. It has been decided that mere speculation as to future harm is

insufficient (see, e.g. Canada Post Corp. v. Canada (Minister of Public Works & Government Services) , 2004 FC 270 at paras. 45 and 46 ) and that a bare assertion in an affidavit that harm will result is not enough to meet the burden (see, e.g., Brainhunter (Ottawa) Inc. v. Canada (Attorney General) , 2009 FC 1172 ). [ 40 ] If neither speculation nor bare assertion meet the evidentiary burden for the application of an exemption, then the question follows as to what can fill the gap. Sometimes legal argument might be sufficient.

However, there are times when applying logic and common sense to bare fact may still be insufficient to allow for informed application of the exemptions. In those cases, understanding the harm asserted requires the application of expertise or experience beyond that possessed by the ordinary person. [ 41 ] It will be necessary in those cases for the party advocating for an exemption to provide opinion evidence that explains the rationale for the projection of harm.

Opinion evidence regarding projected harm is therefore admissible. [ 42 ] The next question is whether the opinion of the public body decision maker, or of affected third parties, on projected harm must meet Mohan criteria for admissibility. [ 43 ] The Supreme Court of Canada, in the cases I previously identified, has addressed the admissibility of expert evidence. The Court in those cases said that in order for expert evidence to be admitted, it must satisfy a two part test applied by the trial judge as gatekeeper.

First, the evidence must meet the threshold requirement based on four factors (relevance; necessity in assisting the trier of fact; absence of an exclusionary rule; and a properly qualified expert) set out in Mohan. If the threshold is passed, then the trial judge should nevertheless exclude the evidence if the cost of admitting the evidence outweighs its benefits. The impartiality and independence of the expert is addressed at both stages of the admissibility analysis.

Moreover, even if admitted, the relative bias of the expert due to concerns regarding impartiality and independence can still be dealt with by the trial judge when considering the weight to be attributed to the opinion of the expert. [ 44 ] The jurisprudence relating to the admissibility of expert evidence has found its way into Rules amendments in some jurisdictions (not this one) which require that expert witnesses must declare in formal documents their independence and ability to provide unbiased opinion to the Court. [ 45 ] Several provincial appellate Courts have decided that the requirement (as a rule of evidence or procedure) that a witness be independent and unbiased before offering opinion testimony applies only to litigation experts, hired by one of the parties to provide opinion in support of their case: Westerhof v.

Gee Estate , 2015 ONCA 206 ; Kon Construction Ltd. v. Terranova Developments Ltd ., 2015 ABCA 249 ; Laing v. Sekundiak , 2015 MBCA 72 ; Saskatchewan v. Racette , 2020 SKCA 2 . [ 46 ] Those cases, and lower Court decisions in those and other provinces that have followed them, determined that both the procedural requirement, and the evidentiary admissibility analysis required by Mohan and White, Burgess, apply only in the case of the “external expert witness who is retained to provide an opinion to assist the court.”: Kon Construction , at para. 33.

The cases go on to describe three categories of “witnesses with expertise” (independent experts, participant experts and litigant experts), as described by the Alberta Court of Appeal in Kon Construction, at paras. 36-40: 36 The first category of "independent experts" must always be qualified by the trial judge under the Mohan procedure, and advance notice of their opinions must be given under the Rules of Court. External witnesses who are not so qualified are not permitted to give opinion evidence requiring specialized expertise.

External expert witnesses are expected to display a basic level of independence and objectivity. 37 It is sometimes argued that the evidence of witnesses in the second category is not "opinion" evidence: Westerhof at paras. 60-1 . To some extent they are testifying about what they observed, and what they actually did. In that sense, they are not opinion witnesses. On the other hand, it is challenging for them to explain why they acted as they did without engaging their professional expertise.

For example, the family doctor cannot explain why he or she endorsed any particular treatment without expressing a medical opinion about it. It is difficult to set the boundary between what they did and their expert opinions about what should have been done. Where witnesses with expertise (who are not litigants) are to testify about events within the scope of their expertise, it is generally prudent to have them formally qualified as expert witnesses, particularly when they propose to express opinions on collateral issues like the employment prospects of the patient.

Further, the overall objective of comprehensive disclosure found in R. 5.1(1)(c &

d) supports the pre-trial disclosure of the opinions of participating experts. 38 The final category of litigant-witnesses with expertise does not fall neatly into the White Burgess and Mohan analysis. First of all, it is unnecessary to prove that such a witness is "impartial, independent, and unbiased" as discussed in White Burgess Langille Inman . Litigants are no longer disqualified as witnesses because of their obvious interest in the case. 39 Under the common law, no witness with an interest in the outcome of the case was allowed to testify, on the assumption that their evidence was somehow "tainted": J.H.

Baker, An Introduction to English Legal History, (4th ed.) (London: Butterworths, 2002) at p. 91. Thus, the parties to the litigation (who usually knew the most about the case) could not testify, and even the accused in a criminal case could not testify in his own defence. These rules were gradually stripped away by statute, and those provisions still exist in the Alberta Evidence Act, RSA 2000, c. A-18 : 3(1) No person offered as a witness in an action shall be excluded from giving evidence by reason of any alleged incapacity from crime or interest.

(2) A person offered as a witness shall be admitted to give evidence notwithstanding that the person has an interest in the matter inquestion or in the event of the action or that the person has been previously convicted of a crime or offence. 4(1) The parties to an action and the persons on whose behalf the action is brought, instituted, opposed or defended are, except asotherwise provided in this Act, competent and compellable to give evidence on behalf of themselves or of any of the parties.

(2) The spouses and adult interdependent partners of the parties and persons mentioned in subsection (1) are, except as otherwiseprovided in this Act, competent and compellable to give evidence on behalf of any of the parties.

(3) Nothing in this

section makes the defendant in a prosecution under

an Act of the Legislature compellable to give evidence for oragainst himself or herself.

The rule in White Burgess Langille Inman requiring external expert witnesses to have some level of independence and objectivity beforethey will be permitted to express opinions on matters requiring specialized knowledge is properly regarded as a narrow exception to theseprovisions, arising as a precondition to them giving opinion evidence. 40 Secondly, it is generally not necessary to qualify the last class of witnesses with expertise as "experts" under the Mohan procedure.As parties to the litigation they are entitled to testify, and generally they will have the most direct and relevant evidence about the issues.The truth finding function of a trial requires that their evidence be received.

Since they were often only involved in the underlying eventsbecause of their expertise, it makes no sense to hold that they cannot explain why they acted as they did, if they stray into their expertise.Their opinions explain why they acted as they did. Since these witnesses are available for pre-trial questioning, formal advance notice oftheir opinions or their evidence is not needed. [47] The Province argues that Mr. Gover and Mr. Mellor should be considered either participant experts or litigant experts becausethey have expertise and were involved in the events leading to this litigation.

In my view, they do not fit in either of those categories. The position of the Province is based on the argument that in order to decide the main application, I must understand the basis for theinitial decision of Government. However, the role of the Court is to consider the application of the exemptions as a new matter. This isnot a judicial review of an administrative decision where the reasons for that decision would be the focus of attention. Therefore, theopinions of Mr. Gover and Mr. Mellor are not admissible as explanations of their actions or of the decision under review.

Their opinionsare not those of participant or litigation experts in the sense that those terms are used in the appellate cases I cited. [48] Nonetheless, there is analogous rationale supporting the reception of the opinions of these Government experts on at least someof the issues in this proceeding. [49] The two stage analysis for the reception of opinion evidence was developed in response to perceived perils to the trial processresulting from the use of expert witnesses.

These dangers were described by the Supreme Court of Canada in White Burgess at paras. 17-18: 17 We can take as the starting point for these developments the Court's decision in R. v. Mohan, (SCC), [1994] 2S.C.R. 9 (S.C.C.). That case described the potential dangers of expert evidence and established a four-part threshold test foradmissibility. The dangers are well known. One is that the trier of fact will inappropriately defer to the expert's opinion rather thancarefully evaluate it. As Sopinka J. observed in Mohan: There is a danger that expert evidence will be misused and will distort the fact-finding process.

Dressed up in scientific language whichthe jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by thejury as being virtually infallible and as having more weight than it deserves. [p. 21] (See also D.D., at para. 53; R. c. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600 (S.C.C.), at paras. 25-26; R. v. Sekhon, 2014 SCC 15,[2014] 1 S.C.R. 272 (S.C.C.), at para. 46.) 18 The point is to preserve trial by judge and jury, not devolve to trial by expert.

There is a risk that the jury "will be unable to makean effective and critical assessment of the evidence": R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330 (Ont. C.A.), at para. 90, leave toappeal refused, [2010] 2 S.C.R. v (note) (S.C.C.). The trier of fact must be able to use its "informed judgment", not simply decide on thebasis of an "act of faith" in the expert's opinion: J. (J.-L.), at para. 56. The risk of "attornment to the opinion of the expert" is alsoexacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.(D.), at para. 54.

The cases address a number of other related concerns: the potential prejudice created by the expert's reliance onunproven material not subject to cross-examination (D. (D.), at para. 55); the risk of admitting "junk science" (J. (J.-L.), at para. 25); and

the risk that a "contest of experts" distracts rather than assists the trier of fact ( Mohan , at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan , at p. 21; D.D. , at para. 56; Masterpiece Inc. v.

Alavida Lifestyles Inc. , 2011 SCC 27 , [2011] 2 S.C.R. 387 (S.C.C.) , at para. 76 . [ 50 ] The exceptions from the Mohan analysis for litigant and participant experts developed because these categories of experts do not present the same perils as do experts retained to provide opinion in respect of the litigation: Westerhof , at paras. 74-86 . Litigant and participant experts do not develop their opinions after the litigation has started, and therefore they come to Court without the same inherent credibility problems as experts retained only to testify.

There is no concern with the proliferation of an industry of experts who could potentially overwhelm the trial process. The exclusion of these witnesses or the requirement that they be tested in accordance with Mohan criteria before testifying as to their opinion, could actually exacerbate, rather than reduce, the cost and time involved in trying cases. [ 51 ] The same considerations militate in favour of accepting evidence from public body employees or affected third parties regarding the application of ATIPPA, 2015 exemptions.

As I noted previously, those advocating for harm-based exemptions are required to provide an explanation as to why records fit within the exemptions. To require that such explanations be provided by independent experts would greatly add to the expense and time required to deal with ATIPPA proceedings. [ 52 ] Moreover, I have doubt as to whether a truly independent expert could provide direct evidence of the nature needed in a proceeding such as this, which requires insight into the interests of affected third parties or of Government.

The need for such insight means that third parties opposed to the disclosure of records on the basis of projected harm may provide evidence projecting the harm (see Air Atonabee Ltd. v. Canada (Minister of Transport), 1989 CarswellNat 585, [1989] F.C.J. No. 453 at paras. 27-32 ; Corporate Express Canada Inc. v. Memorial University of Newfoundland , 2015 NLCA 52 . It also allows for the evidence of Government employees or officials concerning certain specific harm-based exemptions, because those employees or officials have expertise in those areas: H.J. Heinz Co. of Canada Ltd. v.

Canada (Attorney General) , 2006 SCC 13 , at para. 51 . [ 53 ] I therefore find that the opinions of Mr. Gover and Mr. Mellor that discuss the application of the exemptions in s. 34(1)(a) (the disclosure could reasonably be expected to harm intergovernmental relations) and 35(1)(

g) and (h) (the disclosure could reasonably be expected to harm the economic or financial interests of the Province) are admissible.

That those opinions may be biased or influenced by considerations in the interest of Government but not the public interest are factors that may continue to be taken into account in assessing the weight to be attributed to their opinions. [ 54 ] The Application of the Innu Nation to strike paragraphs 13 and 14 of the Mellor Affidavit and following paragraphs of the Gover Affidavit because they contain inadmissible opinion is therefore dismissed: 50-58, 61, 62, 63, 64, 65, 66, 67, 68, 72, 73, 74, 75, 76, 77, 78, 79, and 90. [ 55 ] However, the Affidavits of Mr. Gover and Mr.

Mellor go further than expressing opinion regarding matters within the ambit of expertise expected of Government employees. They also express opinion regarding the application of the exemption in s. 35(1)(

d) and s. 39(1)(c)(

i) and (iii), based on the proposition that the disclosure could reasonably be expected to harm the interests of a third party. In certain cases, Government employees might be in a position to assess potential harm to third parties. For instance, in Canadian Broadcasting Corp . the Affidavit of a social worker attesting to potential harm from publicity to families who were the subject of a report of Child, Youth and Family Services. However, as the Supreme Court of Canada pointed out in H. J.

Heinz at para. 51: … In the case of confidential business information, however, the assistance of the third party is necessary for the government institution to know how, or if, the third party treated the information as confidential. Indeed, the third party's information management practices may be an important means of determining whether the information actually meets the definition of "confidential": Canadian Tobacco Manufacturers' Council v. Minister of National Revenue (2003), 239 F.T.R. 1, 2003 FC 1037 (F.C.) , at para. 114 ; Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194 (Fed.

T.D.), at para. 37 ; Brookfield Lepage Johnson Controls Facility Management Services v. Canada (Minister of Public Works & Government Services) , [2003] F.C.J. No. 348, 2003 FCT 254 (Fed. T.D.) , at para. 13 . Whether the information is confidential cannot be determined without representations from the third party. [ 56 ] Mr. Gover expresses opinions regarding the interests of the Nunatsuivut Government and the Innu Nation. I find that his opinion is not admissible in that regard. Two paragraphs of Mr. Mellor’s Affidavit express similar opinions.

The Application of the Innu Nation to strike paragraphs 10 and 11 of the Mellor Affidavit and the following paragraphs of the Gover Affidavit as containing inadmissible opinion is allowed: 8, 10, 11, 14, 19, 20, 22, 23, 32, 35, 36, 37, 40, 41, 42, 43 44, 45, 46, 47, 48, 49, 50, 59, and 60. Speculation [ 57 ] I have already noted that mere speculation as to future consequences is insufficient to meet the burden on the province to demonstrate that a harm-based exemption applies.

However, whether an assertion in an Affidavit amounts to mere speculation or rational explanation ought not be decided on this evidentiary motion. [ 58 ] The Application of the Innu Nation to strike paragraphs of the Gover Affidavit because those contain speculation is dismissed. Legal Argument [ 59 ] Mr. Gover is a member of the Law Society. However, opinions on matters of domestic law are not admissible.

As Goulding, J. accepted in Bellows at para. 34 , legal argument belongs in a factum or brief and not in an affidavit. [ 60 ] The Application of the Innu Nation for an Order striking the following paragraphs of the Gover Affidavit as containing legal argument is allowed; 3,4, 5, 6, 7, 21, 33, 34, 42, 65, 69, 82, 86, 87, 88, 89, 92, 95, 96, 97, 98 and 100. As to paragraphs 2, 11, 13, 39, 43, 73, 74, 75, 76, 77, 78, 79, 80, 83, 84, and 85, these paragraphs are not obviously legal opinion or argument and the Innu Nation did not demonstrate that they should be considered as such.

These paragraphs set out opinion regarding policy or matters of fact related to the application for disclosure. The Application to strike those paragraphs as constituting legal argument or opinion is dismissed.

Scandalous and Irrelevant [ 61 ] Several of the paragraphs in the Gover Affidavit that the Innu Nation seeks to have struck as either scandalous or irrelevant are also paragraphs that the Innu Nation says contain inadmissible opinion. Where I have decided that a paragraph should be struck as containing inadmissible opinion or legal argument, I will not go on to address whether those paragraphs contain scandalous or irrelevant statements; where I have decided that those paragraphs contain admissible opinion, I have done so as I consider that the opinions stated are necessary and relevant.

Therefore, the application to strike those paragraphs as scandalous or irrelevant is dismissed. [ 62 ] Several of the impugned paragraphs of the Gover Affidavit contain assertions of fact that the Innu Nation says are scandalous and irrelevant. To the extent that these paragraphs either seek to set out a factual basis to explain the motive of the Innu Nation in requesting access to the records, I find that they are indeed irrelevant because the identity of the requestor is generally irrelevant to determination of an access request under ATIPPA, 2015 .

In fact, ATIPPA, 2015 , s. 12 provides that a person who requests access to a record under the Act is generally entitled to anonymity. This makes sense given the structure and purpose of the Act which allows all citizens access, subject to the exemptions, to government records in order to facilitate the functioning of a robust democracy. [ 63 ] The following paragraphs of the Gover Affidavit contain irrelevant assertions of facts and the application of the Innu Nation to strike those paragraphs is allowed: 15, 16, 17, 18, 26, 27, 28, 29, 30, 31, and 32.

Paragraph 63 sets out an assertion of fact relevant to the interests of NCC which may bear on the resolution of the application for a declaration and therefore the application to strike that paragraph is dismissed.

CONCLUSION and DISPOSITION [ 64 ] The Application of the Innu Nation to strike the following paragraphs of the Gover Affidavit is allowed and these paragraphs are struck: 3, 4, 5, 6, 7, 8, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 59, 60, 65, 69, 82, 86, 87, 88, 89, 92, 95, 96, 97, 98 and 100. [ 65 ] The Application of the Innu Nation to strike paragraphs 10 and 11 of the Mellor Affidavit is allowed and those paragraphs are struck. [ 66 ] The Application of the Innu Nation to strike the following paragraphs of the Gover Affidavit is dismissed: 2, 13, 39, 51, 52, 53, 54, 55, 56, 57, 58, 61, 62, 63, 64, 66, 67, 68, 72, 73, 74, 75, 76, 77, 78, 79, 80, 83, 84, 85, and 90. [ 67 ] The Application of the Innu Nation to strike paragraphs 13 and 14 of the Mellor Affidavit is dismissed. [ 68 ] As the Innu Nation has largely been successful in this Application, it is entitled to its costs, taxed on Rule 55, Appendix 1, Column 3 of the Rules of the Supreme Court, 1986 . _____________________________ Daniel M.

Boone Justice