PAUL ABI-MANSOUR Appellant v. CANADIAN HUMAN RIGHTS COMMISSION, 2014 FCA 74

Date: 20140319 Docket: A-288-13 Citation: 2014 FCA 74 CORAM: BLAIS C.J. GAUTHIER J.A. MAINVILLE J.A. BETWEEN: PAUL ABI-MANSOUR Appellant and CANADIAN HUMAN RIGHTS COMMISSION Respondent Heard at Montréal, Quebec, on March 19, 2014. Judgment delivered from the Bench at Montréal, Quebec, on March 19, 2014. REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. Date: 20140319 Docket: A-288-13 Citation: 2014 FCA 74 CORAM: BLAIS C.J. GAUTHIER J.A. MAINVILLE J.A.

BETWEEN: PAUL ABI-MANSOUR Appellant andCANADIAN HUMAN RIGHTS COMMISSION Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Montréal, Quebec, on March 19, 2014). GAUTHIER J.A. [1] Mr.

Abi-Mansour (the appellant) appeals from the order of Mosley J. of the Federal Court, dated August 23, 2013 in file T-924-11, granting the motion of the Canadian Human Rights Commission (the Commission) and ordering the appellant to return to theCommission an inadvertently disclosed document protected by solicitor-client privilege. [2] In an earlier proceeding in file T-924-11, Prothonotary Tabib concluded that this very document or communication wascovered by solicitor-client privilege (Appeal Book, p. 57, para 3), a decision that was later upheld by Tremblay-Lamer J. of the FederalCourt (Appeal Book, p. 62, para 2).

Our Court in Abi-Mansour v. Canada Revenue Agency, 2013 FCA 27 (“Abi-Mansour”) (leave toappeal to the Supreme Court of Canada denied on July 11, 2013) confirmed the Federal Court decision. In Abi-Mansour, theCommission who by then had been made a party to the proceeding (at least in appeal) had filed a cross-appeal and was asking this Courtto intervene and order the return of the said inadvertently disclosed document. Our Court noted that the Federal Court is master of itsown procedure.

Thus, as required by Tremblay-Lamer J., in order to obtain such an order, the Commission had to file a motionrequesting the return of the privileged document. This is precisely what the Commission did before Mosley J. [3] Whether or not the Commission should have formally sought to be joined as a party to the underlying judicial reviewproceedings in order to submit its motion to Mosley J., in the overall circumstances of these proceedings, no prejudice or injustice hasresulted.

It would be an abuse of the judicial process to overturn Mosley J.’s order on such procedural formalities. [4] There is no question that the document is protected by solicitor-client privilege. The only issue is whether this privilege hasbeen waived. Inadvertent disclosure of privileged documents does not automatically result in the waiver of privilege: ChapelstoneDevelopments Inc. v. Canada, 2004 NBCA 96 at paragraph 55; Stevens v. Canada, (FCA), [1998] F.C.J. No. 794 atparagraph 50 (F.C.A.). A case-by-case assessment must be made to determine whether the inadvertent disclosure resulted in a loss ofprivilege.

At best, this is a question of mixed fact and law, reviewable on the standard of palpable and overriding error. Having reviewedthe record and the parties’ submissions, and considering their oral argument, the appellant has not persuaded us that the judge erred inordering the return of the document. [5] In addition, it is difficult to understand why the appellant insists on keeping this document given that it cannot be used in theprocedures in which he is involved.

This Court in Abi-Mansour at paragraph 5 already stated that the redacted portions of this documentcould be of no use to support the appellant’s allegations of wrongdoing. The same can be said about the unredacted parts. [6] For these reasons, the appeal will be dismissed. “Johanne Gauthier” J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-288-13 (APPEAL FROM AN ORDER OF MOSLEY J. OF THE FEDERAL COURT DATED AUGUST 23, 2013, DOCKET NO. T- 924-11) STYLE OF CAUSE: PAUL ABI-MANSOUR v. CANADIAN HUMAN RIGHTS COMMISSION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: March 19, 2014 REASONS FOR JUDGMENT OF THE COURT BY: BLAIS C.J. GAUTHIER J.A. MAINVILLE J.A. DELIVERED FROM THE BENCH BY: GAUTHIER J.A. APPEARANCES : Paul Abi-Mansour ON HIS OWN BEHALF Fiona Keith Marion Van de Wetering For The Respondent SOLICITORS OF RECORD : Canadian Human Rights Commission Litigation Services Division Ottawa, Ontario For The RESPONDENT