MICHAEL AARON SPIDEL Appellant v. CANADA, 2012 FCA 274

Date: 20121101 Docket: A-6-12 Citation: 2012 FCA 274 CORAM: BLAIS C.J.A. SHARLOW J.A. MAINVILLE J.A. BETWEEN: MICHAEL AARON SPIDEL Appellant and CANADA (ATTORNEY GENERAL) Respondent Heard at Vancouver, British Columbia, on October 31, 2012. Judgment delivered at Vancouver, British Columbia, on November 1, 2012. REASONS FOR JUDGMENT BY: MAINVILLE J.A CONCURRED IN BY: BLAIS C.J. SHARLOW J.A Date: 20121031 Docket: A-6-12 Citation: 2012 FCA 274 CORAM: BLAIS C.J.A. SHARLOW J.A. MAINVILLE J.A. BETWEEN: MICHAEL AARON SPIDEL

Appellant and CANADA (ATTORNEY GENERAL) Respondent REASONS FOR JUDGMENT MAINVILLE J.A. [1] This concerns an appeal from an order of Justice Barnes of the Federal Court dismissing an appeal from an order ofProthonotary Lafrenière. [2] The Prothonotary ordered the appellant to return to the respondent privileged documents which had inadvertently beenprovided to him.

He also ordered that certain paragraphs and exhibits be struck from the appellant’s affidavit sworn in support of anapplication for judicial review filed in the Federal Court. [3] The appellant acknowledges that the concerned documents are privileged communications, and he has accordingly returnedthese documents to the respondents.

He also acknowledges that the judicial review proceedings underlying the order have been resolved. [4] The only ground of appeal pursued by the appellant concerns a challenge to the jurisdiction and authority of the FederalCourt to issue the order for the return of the privileged documents. In the circumstances at hand, where privilege is acknowledged, thedocuments have been returned, and the underlying litigation has been resolved, this is now an academic issue. [5] Moreover, none of the factors set out in Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R.342 militate in favour of exercising our discretion to decide this issue despite it being moot. There is no longer an adversarial contextbetween the parties, and neither judicial economy nor the public interest militate in favour of deciding the issue in this appeal,particularly in light of this Court’s decision in Sellathurai v.

Canada (Minister of Public Safety and Emergency Preparedness), 2011FCA 223, [2012] 2 F.C.R. 243. [6] Furthermore, the appellant no longer challenges in this appeal that part of the Federal Court judge’s order confirming, withcertain corrections, the Prothonotary’s order striking out certain portions of the appellant’s affidavit. [7] This appeal should consequently be dismissed with costs in the lump sum amount of $900, including disbursements andtaxes. "Robert M. Mainville" J.A. “I agree Pierre Blais C.J.” “I agree

K. Sharlow J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-6-12 STYLE OF CAUSE: Michael Aaron Spidel v. Canada (Attorney General) PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: October 31, 2012 REASONS FOR JUDGMENT BY: MAINVILLE J.A. CONCURRED IN BY: BLAIS C.J. SHARLOW J.A. DATED: November 1, 2012 APPEARANCES : Michael Aaron Spidel FOR THE APPLICANT Liliane Bantourakis FOR THE RESPONDENT SOLICITORS OF RECORD :

N/A FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT