Nunavut (Department of Community and Government Services) v. Northern Transportation Company Ltd., 2011 NUCJ 04

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut (Department of Community and Government Services) v. Northern Transportation Company Ltd., 2011 NUCJ 04 Date of Judgment (YMD): 201102010 Docket Number: 08-04-172-CVC Registry: Iqaluit Plaintiff: THE GOVERNMENT OF NUNAVUT AS REPRESENTED BY THE DEPARTMENT OF COMMUNITY AND GOVERNMENT SERVICES and THE DEPARTMENT OF FINANCE -and- Defendants: NORTHERN TRANSPORTATION COMPANY LIMITED and REFINERY ASSOCIATES OF TEXAS, INCORPORATED ____________________________________________________________________ Before: The Honourable Mr.

Justice E. Johnson Counsel (Plaintiff): Lou Brzezinski, John Polyzogopoulous Counsel (Defendant NTCL): Edward R. Feehan Counsel ( Defendant RAOT): Jonathan L.S. Hodes Location Heard: Iqaluit, Nunavut Date Heard: December 16, 2010 Matters: Judicature Act, Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010- 96 , rr. 251(1), (2) and (4), as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 .

REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Corrected judgment: A corrigendum was issued on February 14, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment.

I. INTRODUCTION [1] In the related judgment Nunavut (Department of Community and Government Services) v. Northern Transportation Company Ltd.,2010 NUCJ 5 , 2010 NUCJ 05, [2010] Nu. J. No. 1, I indicated that I would postpone one issue until a later date. That issuewas in regard to the Plaintiff’s claim of public interest immunity privilege over a number of documents.

I address that remaining issue inthis judgment. [2] At that time, the Plaintiff agreed to complete a search of its records and to provide the Court with copies of those documents so thata further motion could be heard on that issue. [3] Consequently, the Plaintiff provided the Court with a motion record containing the pleadings and the affidavit of Stephen Mansell.Attached as exhibits to the affidavit, the Plaintiff also provided thirty-five documents that the Plaintiff claims it is not required to producebecause the documents are protected from disclosure by the public interest immunity privilege. [4] The Plaintiff also filed two supplementary affidavits of Mr.

Mansell. The first one claimed privilege over document NU00915A,which had been produced to the Defendants in error. The second affidavit contained a copy of an

article from the Nunatsiaq News aboutthis litigation, as well as two transcripts of debate from the Nunavut Legislative Assembly. [5] I heard arguments on the motion on December 16, 2010, and reserved judgment. [6] When required, I refer to the Defendant, Northern Transportation Company Limited, as “NTCL” and to the Defendant, RefineryAssociation of Texas, Incorporated, as “RAOT”. II. LAW ON PUBLIC INTEREST IMMUNITY [7] All parties agree on the applicable law. The leading case is Carey v Ontario, (SCC), [1986] 2 S.C.R. 637, 35 D.L.R.(4th) 161 [Carey].

In that case, the Government of Ontario gradually became financially involved with Minaki Lodge, a resort innorthwestern Ontario, and eventually became its owner. Its dealings with the appellant, the principal and later controlling shareholder ofthe lodge, gave rise to the action. On examination for discovery, the defendants' witnesses claimed an absolute privilege respecting alldocuments that went to, or emanated from, Cabinet and its committees. The claim was not based on the contents of the documents, but onthe class to which they belonged.

Production, it was alleged, would breach confidentiality and inhibit Cabinet discussion of matters ofsignificant public policy. An application by the Government to quash the subpoena duces tecum was granted, notwithstanding the judge'sassumption that the documents would be relevant to the matters in issue. Both the Divisional Court and the Court of Appeal upheld thatdecision.

At issue was whether the Government of Ontario’s refusal to produce Cabinet documents, as a class, was valid, and whether itwas necessary for the appellant to prove not only that the documents were relevant, but also that they would assist the appellant’s case. [8] The Supreme Court of Canada confirmed that certain information regarding governmental activities should not be disclosed, in thepublic interest, and described the privilege as public interest immunity.

However, the Court also noted that this interest had to bebalanced against maintaining the integrity of the judicial system, and public confidence in it, by requiring full disclosure within theframework of the rules of evidence. [9] The rationale for the public interest immunity rule from Carey was the candour argument.

LaForest J. described it as follows: “[44] The principal argument for withholding the documents described in the affidavit is that their disclosure would lead to a decrease incompleteness, in candour and in frankness of such documents if it were known that they could be produced in litigation and this in turnwould detrimentally affect government policy and the public interest. The familiar "candour argument" is combined with the need ofcompleteness and the fear that the freedom of Cabinet members to discuss matters of significant public concern and policy might bediminished.

This may simply mean that the setting in which confidential statements are made may make them different in kind fromothers.”

[10] In Leeds v. Alberta (Minister of Environment), (AB KB), 1990 CarswellAlta 631, 69 D.L.R. (4th) 681 (Q.B.)[Leeds], the plaintiffs brought an action for damages against the defendant provincial government. The government had designatedcertain lands as “restricted development areas” (RDA), and subsequently expropriated them. The defendant’s statement of claim did notstate that any documentation about the RDA designation or expropriation was subject to the public immunity privilege, and disclosednumerous documents to the plaintiffs.

Counsel for the plaintiffs did extensive examination based on the disclosed documents. Prior totrial, the defendant filed a motion to remove the disclosed documents based on the public immunity privilege, as well as on the basis ofrelevancy. [11] Miller J. considered the criteria outlined in Carey, which should be examined by a court in considering a claim for public interestimmunity, and refused to correct the Crown’s production of documents. [12] The factors were summarized by McDonald J. in Pocklington Foods Inc. v.

Alberta (Provincial Treasurer), (ABKB), 1993 CarswellAlta 501, 147 A.R. 141, and were approved by Vertes, J. in Fullowka v. Royal Oak Mines Inc.,(NWT SC), [1998] N.W.T.R. 217, 79 A.C.W.S. (3d) 694 (Sup. Ct.). [13] In Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2002 BCSC 1509, 8 B.C.L.R. (4th) 281[Health Services], Burnyeat J. conducted a helpful review of the case law and academic writing on public interest immunity. He adoptedthe factors described in The Law of Evidence in Canada. III.

ISSUES [14] The factors outlined by the courts in each of the above cases were similar, and many were listed in multiple judgments. In the caseat Bar, Counsel for the Defendants accepted the

summary provided at paragraph 22 in the Plaintiff’s Pre-Hearing Brief. Argumentswere advanced accordingly, as follows: (

i) the level of the decision-making process; (ii) the nature of the policies concerned; (iii) the time when a document is to be revealed; (iv) whether the government has previously disclosed the records; (

v) whether or not the issues in the litigation concern an allegation of governmental misconduct which would merit disclosure ofprivileged records; (vi) the importance of producing the documents for the administration of justice, with particular consideration of o the importance of the litigation; o the necessity of the evidence for the correct determination of the disputed facts; o the fairness of the hearing as seen by the litigant and the public. A.

The Level of the Decision-Making Process A.1 Plaintiff’s Argument [15] The Plaintiff argues that the documents are precisely the kind of high-level policy documents contemplated in Carey, becauseMinisters and advisors created most of the records at the policy formation stage. [16] Exhibits A-C, E, F, CC, EE and FF are briefing notes from high level policy advisers at the Department of Finance and theDepartment of Public Works & Services that contain recommendations on procedural policy formation and legal considerations. [17] Exhibits G-I, M-P, T, U, X, Y, AA and DD are requests for Cabinet decisions from Ministers and high level advisers at the

Department of Finance and the Department of Community and Government Services. These outline the issues requiring Cabinet’sattention and the various options available to Cabinet. They provide recommendations to Cabinet on the most appropriate decisions. [18] Exhibits J, Q, V, W and GG are confidential advice and recommendations to Cabinet from the Department of the Executive andIntergovermental Affairs (EIA).

The EIA provides advice and support to Cabinet under the direction of the Premier. [19] Exhibits D, K, R, S, BB, HH and JJ are correspondence including letters, agendas and Cabinet memoranda, between Ministers andCabinet, regarding Cabinet deliberations and decisions. A.2 Defendants’ Argument [20] The Defendants argue that some of the documents were created at the bureaucratic level.

For example, Exhibit B contains adecision paper by Ross Mrazek and Susan Makpah who are bureaucrats not Ministers. [21] Exhibits E, F, G, H and I are described as being documents prepared for the Department of Public Works & Services. Because theauthors are not identified, the Defendants submit it is reasonable to assume they were prepared below the Cabinet level. [22] Exhibits M and N and a few others were prepared by David Ramsden, who was a consultant hired by the Plaintiff to deal with thefuel issues.

He was not a Cabinet Minister either. [23] The Defendants submit that even if the documents were created at the ministerial level, this legal action is unique because theactions taken by the Ministers and the advice they received, and did or did not act upon, will have a direct bearing on the issues in thiscase.

A.3 Analysis [24] As noted in Crown Privilege, high level policy documents are treated differently than lower level policy documents: “Cabinet Documents:82 Executive claims for non-disclosure of high level policy documents are usually afforded a substantial degree ofdeference by the courts.83 Policy discussions do not, however, form a homogeneous class;84 the degree of deference is proportional tothe level at which the discussions take place.85 But no factor is determinative.86 Where the policy formulation or deliberation stage87can be distinguished from the implementation phase of policy development the former will be afforded a greater latitude of judicialdeference.”88 [25] Footnote 87 states: “American authors Carlson, Imwinkelried and Kionka, Materials for the Study of Evidence 2nd ed. (Virginia, The Michie Co., 1986), p.716, state that: “to be protected, a document must be both predecisional and deliberative; that is, the document must be generated as partof a decision-making process resulting in a final governmental action, and the document must reflect the ‘give and take’ of opinions inthe decision-making process.

In Commonwealth jurisdictions this statement may be qualified so as to refer to Cabinet documents; lesserprotection may be given to documents which do not meet this standard.” [26] Footnote 88 states: “In Carey v. Ontario (1986), (SCC), 35 D.L.R. (4th) 161 at p. 187 (S.C.C.), La Forest J. poses the question: … are we really dealing with the formulation of policy on a broad basis, or are we simply concerned with a transaction made in theimplementation of that policy?..

Policy and implementation may well be intertwined but a court is empowered to reveal only somuch of the relevant documents as it feels it is necessary or expedient to do following an inspection.”

[27] Exhibits A and C are both signed by the Minister and Deputy Minister of the Department of Public Works & Services. Exhibit A isan Information Item for the Financial Management Board (FMB). It concerns the financial implications of the proposals received for thebulk fuel re-supply of 27 communities in the Baffin, Keewatin and Kitikmeot regions, and 18 communities in the western Arctic.

Exhibit C is an Information Plan for Cabinet to develop strategies for two Requests for Proposals calls for the continuation of the supplyand transportation of Bulk Refined Petroleum Products, for Nunavut, for the resupply year 2003 and beyond. Exhibit B is a MinisterialBriefing Note/Decision Paper requesting approval from Cabinet to proceed with a contract extension for the fuel supply contract. [28] I am satisfied that all three documents pertain to policy formation by the Cabinet.

The FMB is a statutory committee of theExecutive Council under section 3(1) of the Financial Administration Act, R.S.N.W.T. 1988, c. F-4, as duplicated for Nunavut by s. 29of the Nunavut Act, S.C. 1993, c. 28. [29] Exhibit E is a draft Cabinet Information Item similar to Exhibit A, on issues related to problems with the quality of the fuel suppliedin 2001. Then Principal Secretary to the Premier, Anne Crawford, drafted it with the assistance of legal counsel, Cal Clark, for thesignatures of the Minister and the Deputy Minister of Public Works and Services.

It provides advice about the steps that should be takento deal with the problems. Although unsigned, I am satisfied it is a document pertaining to policy formulation by the Cabinet. [30] Exhibit F is a similar Cabinet Information Item, but is signed by the Minister and I am satisfied it is a document pertaining to policyformulation by the Cabinet. [31] Exhibit G consists of a series of e-mails between legal counsel Cal Clark, Douglas Wallace, Ross Mrazek and others, with variousrevisions to a Request for Decision from Cabinet, to be signed by the Minister and the Deputy Minister.

The request regards theformulation of the Cabinet strategy to deal with the problems with the quality of the fuel supplied in 2001.

I am satisfied that it is adocument pertaining to policy formulation by the Cabinet. [32] Exhibit H is another draft of the same Request for Decision that Exhibit G relates to, and it is therefore a document pertaining topolicy formulation by the Cabinet. [33] Exhibit I is the final version of the Request for Decision addressed in Exhibits G and H, signed by the Minister and DeputyMinister, and an actual Cabinet Document. [34] Exhibits M and N are a draft and final version of a Decision Paper prepared by consultant David Ramsden.

This document falls intothe same category of document as that described by Wallace J. in British Columbia Assn. v. British Columbia, (BCSC), 1983 CarswellBC 10, 144 D.L.R. (3d) 374 at 374. He stated: “[14] In the light of my categorizing the document as an opinion expressed by some government advisor for the consideration of cabinetrespecting proposed legislation, I am of the view that such documents are of a confidential character and that it is clearly in the publicinterest that they be privileged from disclosure when the validity of that legislation is being questioned in court.

The principle of "thepublic interest in the administration of justice" has no application to documents of this nature. Accordingly, I would also refuse thedemand for production on the ground of privilege.” [35] I am satisfied that Exhibits M and N fall into the category of documents pertaining to policy formulation by the Cabinet. Thisfactor suggests the documents are protected by the public immunity privilege. B.

The Nature of the Policies Concerned B.1 Plaintiff’s Argument [36] The Plaintiff asserts the public interest immunity with respect to four policies concerned with fuel management, listed at paragraph28 of its Pre-Hearing Brief:

(

i) The control of the fuel supply to Nunavut; (ii) The determination of fuel prices in Nunavut; (iii) The management of the quality of fuel in Nunavut; and (iv) The creation and administration of the “bad fuel” compensation program for Nunavut to deal with the issue of the bad gasoline sold by the defendants. [ 37 ] The Plaintiff relies on Peigan Indian Band v. Alberta, 1998 ABCA 206 , [1998] A.J. No. 1467 [Peigan Indian Band] to argue that the public interest immunity is not limited to issues of national security and defence.

In that case, the immunity was extended to water management issues. [ 38 ] While the Plaintiff admits, in paragraph 27 of its Pre-Hearing Brief, that some of the documents pertain to the implementation rather than formulation of policies, it argues they contain instructions from Cabinet and are inextricably linked to the policy formation documents. B.2 Defendants’ Argument [ 39 ] The Defendants argue that the descriptions of the policies in the Plaintiff’s affidavit material are so vague and generic that they are meaningless in the context of this application.

Carey obliges the Plaintiff to describe the precise policy matters in detail. The fourth policy identified is the creation of a compensation program. It was submitted by the Defendants that this program was an operational response to the fuel issues that arose at that time rather than the creation of a policy [ 40 ] Their position is that Exhibits A and B relate to specific transactions rather than to a policy. The RFP and the extension of NTCL’s contract are transactional documents. Almost all documents from Exhibit P forward arose after the gasoline issue appeared.

Each one relates to the Plaintiff’s handling of the fuel problem and concerns the implementation rather than the creation of policy, as admitted at paragraph 27 of the Plaintiff’s Pre-Hearing Brief. B.3 Analysis [ 41 ] In Carey, La Forest J. noted that the basic rule in assessing a claim of public interest immunity is that requested Cabinet documents must be disclosed unless that disclosure would interfere with the public interest: “[79] The foregoing authorities, and particularly, the Smallwood case, are in my view, determinative of many of the issues in this case.

That case determines that Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest. The fact that such documents concern the decision-making process at the highest level of government cannot, however, be ignored. Courts must proceed with caution in having them produced. But the level of the decision-making process concerned is only one of many variables to be taken into account.

The nature of the policy concerned and the particular contents of the documents are, I would have thought, even more important.” [ 42 ] He went on to exempt documents that relate to policies dealing with national defence and security as being documents that should not be disclosed in the public interest: “[81] I would repeat that no claim is made here on the basis of the nature of the policy discussed in the documents.

If the certificate had particularized that their divulgence should be withheld on the ground, for example, that they relate or would affect such matters as national security or diplomatic relations, that would be another matter.” [ 43 ] However, he put the development of a tourist policy in an entirely different category, stating: “[82] In the present case, however, we are dealing with a claim based solely on the fact that the documents concerned are of a class whose revelation might interfere with the proper functioning of the public service.

It is difficult to see how a claim could be based on the policy or contents of the documents. We are merely dealing with a transaction concerning a tourist lodge in northern Ontario. The

development of a tourist policy undoubtedly is of some importance, but it is hardly world-shaking.

Apart from this, are we really dealingwith the formulation of policy on a broad basis, or are we simply concerned with a transaction made in the implementation of thatpolicy?” [44] The words “hardly world-shaking”, used by La Forest J. in Carey to describe a tourist policy, were adopted by Miller J. in Leeds todescribe the policy of developing the transportation and utility corridors around the cities of Edmonton and Calgary. [45] Miller J. also noted that granting the immunity was not justified simply because the action involved a large sum of money: “[26] Now it is true that the plaintiffs' action involves considerable sums of money and may, if successful, create a precedent which willbe costly to the public purse if the government pursues the present concept of the R.D.A. but our senior courts have consistently said thatthis was not to be the basis for granting public interest immunity.

A statement by Lord Blansburgh in Robinson v. State of SouthAustralia (No. 2), (UK JCPC), [1931] A.C. 704 (P.C.) at 716, quoted by Mr.

Justice La Forest in Carey at 171 is veryapt here: "In truth, the fact that the documents, if produced might have any such effect upon the fortunes of the litigant is of itself acompelling reason for their production - one only to be overborne by the gravest considerations of State policy or security."” [46] Unfortunately, the Peigan Indian Band case does not reveal the background facts to properly understand the decision of the court.Moore J., the trial judge, described the litigation in 1998 ABQB 850, [1998] A.J.

No. 1108 as follows: “[1] Peter Yellowhorn, Chief of the Peigan Indian Band (the "Band") started this action in 1986 against Her Majesty the Queen in Rightof the Province of Alberta ("Alberta"). The underlying action is a claim by the Band and a counterclaim by Alberta. Both claim rightswithin Peigan Indian Reserve No. 147 (the "Reserve") to water flowing in the Oldman River and to the land underlying the River. Theclaim was triggered by Alberta's proposed construction of a dam and reservoir upstream from the Reserve.

Each of the Band and Albertaasks for a declaration that it has rights to the water and the underlying land for the portion of the River that is located within theReserve.” [47] The subject matter in Peigan Indian Band was properly classified as a sensitive policy matter of national interest similar to nationaldefence, security and diplomatic negotiations.

It concerned a dispute over the control of a natural resource overlapping the jurisdictionsof the Federal and Provincial Governments. [48] In the case at Bar, three documents touch on long term fuel supply policy, while the remaining thirty-two are primarily concernedwith developing and implementing a compensation scheme for the residents of Nunavut who suffered damages from poor quality gassupplied by the Defendants. As a result, I am satisfied that these thirty-two fall into the same category as those in Carey and Leeds, andare not covered by the public interest immunity privilege. C.

The Time When the Documents Are To Be Produced C.1 Plaintiff’s Argument [49] The Plaintiff argues that the continuous supply of fuel to Nunavut and its three regions has always been a significant concern to theformer Government of the Northwest Territories and to the Plaintiff, since the creation of Nunavut.

Because of the unique nature of theenvironment and the short window of opportunity available to deliver fuel to the communities, the fuel must be purchased in bulk for theentire Territory and then stored for use during the rest of the year. [50] The Plaintiff submits that questions in the Legislative Assembly on June 2 and 3, 2010 illustrate the point that the supply of fuel tothe communities of Nunavut is a matter of continuous, ongoing concern to the Plaintiff and to Nunavummiut. That the events of the caseat Bar took place in 2001 and 2002 does not mean that the related policy issues are limited to that time.

Rather, there has been a historicalevolution of the policy since then based on the facts that arose at that time. [51]

Section 13 of the Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20, as duplicated for Nunavut by s. 29 ofthe Nunavut Act, S.C. 1993, c.28 [ATIPP], buttresses the historical argument. It provides that documents pertaining to Cabinetconfidences are to remain privileged for 15 years. The legislation also applies the 15 year currency date to briefings, advice andrecommendations prepared for the Executive Council or the FMB, and to their decisions.

[ 52 ] As noted in Jaslowski v. Manitoba (Minister of Justice), 1999 CarswellMan 376, 90 A.C.W.S. (3d) 666 , Cabinet document exemptions in access to information laws are designed to facilitate clear and open discussion among public officials and Ministers. [ 53 ] While ATIPP deals with access to documents by the public in general rather than in the context of a legal action, the Plaintiff asserts that the statute reflects the Legislature’s conclusion on the generally appropriate length of time to protect Cabinet documents.

They submit that this Court should not accord any lesser protection for Cabinet confidences at common law than the 15 year period already determined necessary by the statute. [ 54 ] As noted in Carey, when there is a keen public interest in the subject matter, revelations about Cabinet discussion and planning at the developmental stage might seriously inhibit the proper functioning of Cabinet government. [ 55 ] The Plaintiff submits that not only should the confidences be protected for 15 years, but for as long as there remains a keen public interest in the matter.

They argue that the above-noted questions in the Assembly and a recent

article in the April 1, 2010, issue of the Nunatsiaq News demonstrate that there remains a keen public interest in this matter. [ 56 ] The Plaintiff’s position is that the media coverage is an indication of the public interest in these issues. Therefore, production of the documents in question and the unavoidable news coverage about the contents of these records would inevitably and unnecessarily jeopardize the Plaintiff’s ability to openly and honestly internally discuss these issues on an ongoing basis.

C.2 Defendants’ Argument [ 57 ] The Defendants argue that the documents sought do not concern general government policy toward gasoline procurement, but rather that they relate to the Plaintiff’s response to a very specific issue that arose in a short time frame in 2002. Thirty-three of the thirty- five documents included with the Mansell affidavit were created over a seven month period from March to October, 2002.

Most of them deal with the administration of a one-time unique issue, namely the bad gas and the resulting compensation scheme. [ 58 ] The Defendants claim the Mansell affidavit is deficient in the same way as the one used in Health Services.

In that case, the court had difficulty understanding how disclosure of the documents in question would interrupt any ongoing negotiations of which the court had no evidence, since all of the documents predated the legislation coming into force. [ 59 ] NTCL argues that the Plaintiff failed to articulate how the documents prepared in 2002 pertain to fuel supply, pricing or quality in 2010 or 2011. [ 60 ]

Section 13 of ATIPP is directed at preventing a constant barrage of requests by the public that could legitimately impede the functioning of government. It is not designed to protect the government from producing relevant documents in the course of a lawsuit that it has commenced. Sections 3(2) (

c) and (

d) of ATIPP state specifically that the Act “does not limit the information otherwise available by law to a party to a legal proceeding” and “does not affect the power of any court or tribunal to compel a witness to testify or to compel production of documents.” [ 61 ] The documents were more than 12 years old in Carey and the court in that case noted the period of protection for government decision-making must be relatively short. The Defendants submit that the 15 year period set out in ATIPP is purely arbitrary and should not be applied to a case contrary to the principles established by the case law. [ 62 ] The newspaper

article in the Nunatsiaq News and the question in the Assembly were primarily a commentary on the length of time this litigation is taking. The only public interest is a general curiosity about when the case will end. [ 63 ] The Defendants’ argue that any potential problems concerning media coverage about the contents of the documents are addressed by the implied undertaking applicable in every lawsuit, i.e the documents produced cannot be used except for the purposes of the litigation. The discovery process is not accessible by the media and the only possible public disclosure would occur if the documents

were introduced as exhibits during the trial. The Defendants submit that the Plaintiff assumed this risk when it commenced the litigation C.3 Analysis [ 64 ] In Carey, La Forest noted that the protection period for Cabinet documents would be relatively short: “[82] I turn now to the length of time since the transaction in question occurred. Recent cases make clear that if Cabinet documents may be given protection as a class, that protection need not be continued until they are only of historical interest.

Rather, these cases indicate that the period of protection solely for preserving the confidentiality of the government decision-making process will be relatively short. While it may be true as the Court of Appeal states that the government policy concerned -- the tourist and recreational industry in northwestern Ontario -- may still be ongoing, I find it difficult to accept its conclusion that the advice given and decisions taken respecting the transaction involved in this case have not so lost their immediacy that a court must concern itself about them.

We are talking about a transaction that took place over twelve years ago in connection with what by any measure can scarcely be regarded as high level government policy.” [ 65 ] The documents in Leeds were over 15 years old while those in Health Services were 10 to 20 months old. In the case at Bar, the documents were created over 8 years ago. The 15 years specified in ATIPP is purely arbitrary and is not helpful. The common law rules continue to apply to litigation. [ 66 ] I am satisfied that the documents are old enough to protect the concern for the candour of Cabinet meetings.

The bad fuel issue ceased to be a matter of public concern after all of the related claims were paid out. The Nunatsiaq News

article is a short, straightforward description of the earlier judgment in this action, released last March. The June 2, 2010, Legislative Assembly question in Hansard is about a problem with the hamlet of Pangnirtung running out of fuel in 2009. The June 3, 2010, question simply asks the Minister of Justice when the Government believes this action will be resolved. [ 67 ] Any concerns about the information becoming public can be addressed by using the type of order used in the Health Services case. [ 68 ] This factor suggests the documents are not covered by the privilege. D.

Previous Disclosure and Inadvertent Production of Documents D.1 Plaintiff’s Argument [ 69 ] All but one of the documents has been kept in confidence by the Plaintiff. Document NU00915A was inadvertently released to the Defendants. The court may order the return of a confidential document that has been inadvertently released to another party, and the factors to consider are set out in Babcock v. Canada (Attorney General), 2004 BCSC 1311 , 246 D.L.R. (4th) 549 [Babcock].

D.2 Defendants’ Argument [ 70 ] RAOT argues the document does not reveal any candid discussions leading to recommendations nor does it disclose legal advice. However, it does shed some light on the Plaintiff’s conduct and is very relevant to the issues. [ 71 ] NTCL referred to answers given at examination for discovery by the officer of the Plaintiff. The officer described the document as being for information purposes, as opposed to a Request for Decision. It was a routine document prepared for every Cabinet meeting. D.3 Analysis

[72] The document is called a Cabinet Information Item. It recommends that the Plaintiff carry out testing of the tainted fuel and,depending on the results, set up a compensation scheme. It is similar to Exhibit F. It is a document that seems to be of lesser importancethan many others called Requests for Decisions. [73] Babcock held that it is open to a court to retroactively consider the Carey rules when there has been inadvertent disclosure.Therefore, it should be considered with all of the other documents and be dealt with accordingly. E.

Government Misconduct E.1 Plaintiff’s Argument [74] The Defendants do not allege any governmental misconduct such as which occurred in Carey and Leeds. In Carey, the plaintiffalleged unconscionable conduct by Cabinet, while in Leeds, the plaintiffs alleged tortuous misconduct. E.2 Defendants’ Argument [75] While admitting there is no serious misconduct, the Defendants argue there are serious issues of contributory negligence that mayborder on recklessness. In other words, the conduct of the Plaintiff is very much in play in the litigation.

E.3 Analysis [76] In Carey, La Forest J. thought the conduct alleged was a significant factor to consider, stating: “[84] There is a further matter that militates in favour of disclosure of the documents in the present case. The appellant here allegesunconscionable behaviour on the part of the government. As I see it, it is important that this question be aired not only in the interests ofthe administration of justice but also for the purpose for which it is sought to withhold the documents, namely, the proper functioning ofthe executive branch of government.

For if there has been harsh or improper conduct in the dealings of the executive with the citizen, itought to be revealed. The purpose of secrecy in government is to promote its proper functioning, not to facilitate improper conduct by thegovernment. This has been stated in relation to criminal accusations in Whitlam, and while the present case is of a civil nature, it is onewhere the behaviour of the government is alleged to have been tainted.” [77] Any improper conduct by the Plaintiff is on the low end of the severity scale. This factor suggests the documents are protected bythe privilege. F.

The Importance of Producing the Documents for the Administration of Justice (

i) The Importance of the Litigation F.i.1 Plaintiff’s Argument [78] The Plaintiff notes that Carey held that the public interest in the proper administration of justice must be weighed in the context ofthe litigation at issue. While civil cases are important, courts will generally give greater weight to the public interest in the administrationof justice in criminal cases, as held in R. v. Elias, (NWT SC), [1992] N.W.T.R. 215, 16 W.C.B. (2d) 169 (Sup. Ct.).

[ 79 ] The case at Bar is a civil case. While there may be keen public interest, the legal significance is minimal. There are no novel legal issues, no one’s liberty is at stake and there are no Charter rights at stake.

This case does not concern the potential loss of livelihood, as in Carey, nor is it a case that has the potential to affect a large number of people, as in Leeds. [ 80 ] On the other hand, there is more at stake for the public if Cabinet confidences are revealed and their ability to engage in open discussion about fuel issues is compromised. [ 81 ] Continued candid dialogue by Cabinet on fuel supply is important for Nunavummiut because they are especially dependant on fuel for their livelihoods and for their very survival. The Plaintiff is the sole supplier of gasoline to the people of Nunavut.

Shipments are made only once each year and there is little margin for error. One bad shipment will seriously impact the citizens for an entire year. The Cabinet relies on confidentiality to ensure candid and effective communication among its members and advisors, in the continued development of public policy in relation to fuel. Public disclosure of these policies may inhibit candid and open dialogue about ongoing fuel issues today and in the future. F.i.2 Defendants’ Argument [ 82 ] The Defendants dispute the Plaintiff’s contention that there are no novel legal issues in this case.

The Defendants submit that the case has the potential to be precedent-setting, in relation to a government’s duty of care and in regard to resource procurement. Further, that the development of the proper specifications and the question of whether the industry standards in the bulk fuel-trading arena are sufficient to meet a trader’s duty of care is a very significant issue. [ 83 ] They submit that future governments and bulk fuel traders have the potential to be guided by the decision in this case.

On the other hand, the public interest in protecting documents about a compensation scheme that took place in 2002 is primarily historical. [ 84 ] NTCL noted the distinction made in Leeds, for situations in which the Crown has a vested interest in the outcome of the litigation. In those situations, a court should be reticent to allow the Crown to hide behind the public immunity privilege.

F.i.3 Analysis [ 85 ] In Leeds, Miller J. commented on the significance of the Crown being a party to the litigation, stating: “[24] This general trend towards full disclosure has been even more evident in Canadian court decisions when the Crown is a party to the litigation and has a direct interest in seeking immunity to perhaps bolster its position in the litigation. The reasoning behind this trend was given by Lord Edmund Davies in the English decision of Burnah Oil Co. Ltd. v.

Bank of England, [1979] 3 All E.R. 700 (H.L.) when he stated at 720: Accordingly, since not only justice itself but the appearance of justice is of considerable importance, the balancing exercise is bound to be affected to some degree where the party objecting to discovery is not a wholly detached observer of events in which it was in no way involved. This passage was cited by Madam Justice Wilson at p. 408 in the Smallwood case, after noting that the Crown in Burmah Oil was not a party to the original action.

In my opinion, the rationale given by Lord Edmund Davies applies even more forcefully whenever the Crown is an original party to the action. As a defendant in the case at Bar, the Crown's interest in the outcome of litigation is both obvious and undeniable. Any claim by the Crown that it should not be subject to full discovery by the opposing party must therefore be carefully scrutinized.

As a party, the Crown is subject to "...the general principle that in a court of justice every person and every fact must be available to the execution of its supreme functions" unless an overriding public interest is established: Rand, J. at page 482 of R. v. Snider, supra.” [ 86 ] In the case at Bar, the Plaintiff is a government seeking $7,500,000 in damages from the Defendants. It has a strong interest in the outcome of the litigation, and therefore, its claim should be carefully scrutinized. The amount of money by itself makes the claim important.

The pleadings suggest that there will be significant issues of contract law, such as representations and warranties, fundamental breach and the Sale of Goods Act, R.S.N.W.T. 1988, c. E-2 , as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 . There are also issues of negligence, conflicts of law and damages. Finally, there is the

interpretation of the Environmental Protection Act, R.S.N.W.T. 1988, c. E-7 , as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 and of the Transportation of Dangerous Goods Act, R.S.N.W.T. 1988, c.81, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28.

[87] Any judgment on these issues, which are conceded by the Plaintiff to be important, will have a significant impact on the supply offuel to Nunavut and to the western Northwest Territories. [88] On the other hand, I am satisfied that production of the documents will have a minimal impact on candid dialogue in the Cabinet.Furthermore, the documents can be protected from the public by the type of order made in the Health Services case. (ii) The Necessity of the Evidence for the Correct Determination of the Disputed Facts F.ii.1.

Plaintiff’s Argument [89] The Plaintiff argues that there will be a minimal impact on the Defendants’ case if the documents are not produced. The factualinformation is likely available elsewhere and the policy decisions and actions of the Plaintiff are fully known to the Defendants.

Theinternal reasons for why certain policy decisions were made are not relevant to the action. [90] It is submitted by the Plaintiff that the information is probably available in the 18,517 documents that have already been produced,or from information gathered from examinations for discovery. [91] Further, the Plaintiff claims that the information is minimally relevant. The documents are not primary factual documents but ratherdeliberations, advice and recommendations. [92] In addition to public immunity privilege, the Plaintiff asserts litigation privilege over Exhibits II and JJ.

This privilege is differentfrom solicitor/client privilege and, as held in Moseley v. Spray Lakes Sawmills Ltd. (1980), 1996 ABCA 141 , 135 D.L.R. (4th)69 at para. 21, 184 A.R. 101 (C.A.) [Moseley], it may attach to documents “even where no lawyer is to be briefed”. As set out in thatcase, statements and documents will fall within the protection of the litigation privilege where the dominant purpose for their creationwas, at the time they were made, for use in contemplated or pending litigation.

F.ii.2 Defendants’ Argument [93] The Defendants argue the documents are relevant to the issue of whether or not the Plaintiff was contributorily negligent. [94] The Defendants acknowledge the voluminous document production and information from the examinations for discovery.However, the witnesses were generally incapable of answering most of the questions relating to the Plaintiff’s reasons for their actions.The Defendants are unable to determine the relevance of the documents without seeing them. [95] NTCL noted the statement in the Mansell affidavit that the factual information contained in the Cabinet documents is containedelsewhere in the 18,000 documents produced to date.

Unfortunately, the Defendants, who have not seen the documents, do not knowwhere to look for the answers. [96] The Defendants argue that the Plaintiff has misunderstood the Moseley test. The test set out at paragraph 17 of that case requiresthat the document must be prepared “for submission to a legal adviser… for advice and use in litigation.” The Mansell affidavit does notsay that the documents were created for use in contemplated litigation nor does it say they were created for submission to a legal advisor. F.ii.3 Analysis [97] In Carey, La Forest J. noted that the court in Air Canada v.

Secretary of State for Trade (No 2), [1983] 2 A.C. 394, 2 W.L.R. 494

(H.L.) held the documents in that case could not be inspected or disclosed, in part because they were available from other sources.

LaForest J. then disagreed with the observation of the Court of Appeal in Carey, about their acceptance of: “[98]”a bare unsupported assertion... that something to help him may be found” in the documents; Carey's case stopped far short ofshowing “some concrete ground for belief” which would take the case beyond mere speculation.” [98] La Forest J. then explained the difficulty with this approach, stating: “[99] What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedlyrelevant, can be of assistance. How can he do that?

He has never seen them; they are confidential and so unavailable. To some extent,then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and whatone party was doing in relation to the relevant transactions at the time.” [99] Finally, he described a low threshold for relevancy, stating: “[105] I should add that I much prefer the approach of Lord Scarman and Lord Templeman in the Air Canada case that the court mayunder R.S.C.

Order 24, r. 13 inspect the document and, if not found to be outbalanced on the basis of some public interest, produced notonly when this is likely to assist the plaintiff's case or damage the defendant's, but also where it may assist any of the parties to theproceedings. Disclosure may as they indicate be necessary for a fair determination of the issues and for saving costs even when it doesnot directly assist the plaintiff's case; see for example Lord Scarman at p. 535.” [100] In Leeds, counsel for the plaintiffs was able to inspect the documents because they had been produced before the privilege wasclaimed.

As a result, counsel for the plaintiffs was in a position to comment knowledgeably on the importance of the documents to theplaintiff’s ability to fully place their case before the courts. In Leeds, Miller J. also applied this low threshold for relevancy at paragraph32, stating: “The Supreme Court of Canada at p. 194 of Carey has established that a plaintiff will not be rigorously required to prove that thedocuments are of direct assistance to his case or damaging to the defendant: “[d]isclosure may… be necessary for a fair determination ofthe issues and for saving costs".

The plaintiff in the case at Bar has satisfied me that the documents are necessary for the fair and fullpresentation of the case.” [101] In the case at Bar, the Plaintiff is claiming approximately $4,500,000 for recovery of money paid out to residents of Nunavut,pursuant to a compensation program created to pay for the damages caused by the bad fuel. Thirty-two of the thirty-five documents go tothe heart of why and how this program was set up. It is unclear if the information is available from other sources.

I am satisfied that allbut three of the documents are relevant to the issues and are necessary for the correct determination of the facts. [102] I am satisfied that Exhibits II and JJ do not fall within the litigation privilege. As noted in Moseley, litigation privilege is separatefrom solicitor/client privilege and is directed at the protection from disclosure, of those statements or documents that are obtained orcreated particularly to prepare for litigation.

While the document is usually prepared at the request of a lawyer, the parties sometimesinitiate certain investigations with a view to providing information for the ‘lawyer’s brief’. Conrad J. summarized the rule as follows: “[24] The key is, and has been since this Court adopted the dominant purpose test in Nova, that statements and documents will onlyfall within the protection of the litigation privilege where the dominant purpose for their creation was, at the time they were made, foruse in contemplated or pending litigation.

While a lawsuit need not have been initiated, and while a lawyer need not have been retained atthe time the statement or document was made, the party claiming privilege must establish that at the time of creation the dominantpurpose was use in litigation. The words "by reason of an intention to provide information to solicitors" are not superfluous. The test is astrict one. As has often been stated, it is not enough that contemplated litigation is one of the purposes.

So litigation privilege will notautomatically apply to statements taken or reports made by insurance adjusters investigating serious personal injury accidents. Theconverse, however, is also true. It will not automatically fail to apply in such circumstances, as suggested by the appellant. He urges thisCourt to follow the British Columbia Court of Appeal's decision in Hamalainen (Committee of) v.

Sippola (1991), (BCCA), 3 C.P.C. (3d) 297 [(B.C.C.A.)] and hold that early on in the investigation of every serious accident there is an "informationgathering" stage before any litigation is actually anticipated.” [Italics in original]

[ 103 ] Exhibit II is titled “Information Item for Cabinet” and its purpose is stated to be to provide the Cabinet with information regarding the recently registered claim against NTCL, concerning the recovery of all unclaimed losses and administrative expenses associated with the Plaintiff’s Gasoline Compensation Program. Although the document discusses possible legal action, its dominant purpose was to inform Cabinet and not for purposes of litigation.

Exhibit JJ is simply the authorization by the Cabinet to pursue recovery of the expenses. [ 104 ] On this factor, the documents are not protected from disclosure by the public immunity privilege. (iii) The Fairness of the Hearing as seen by the Litigant and the Public F.iii.1 Plaintiff’s Argument [ 105 ] The final submission of the Plaintiff is based on the candour argument set out in Carey, as discussed above. It is premised on the idea that the documents in question are not necessary for the Defendants to make full answer and defence.

The Plaintiff argues that the disclosure of the documents would be unfair to the Plaintiff and to the public interest because of the “chilling effect [it would have] on the frank consultation and analysis that is necessary for effective and consistent decision-making by cabinet and high-ranking public servants today and in the future.”(Plaintiff’s Pre-Hearing Brief, para. 79) F.iii.2 Defendants’ Argument [ 106 ] The Defendants argue that while the decisions of the Plaintiff are known, the reasons for those decisions are not known, and that the Plaintiff’s witnesses could not provide them.

Fairness requires that documents that may reveal those reasons should be provided to the Defendants. As noted in Health Services, a positive public perception is assisted by the knowledge that there is not one rule in effect for the government in litigation, and a separate rule for a private litigant. F.iii.3 Analysis [ 107 ] While acknowledging some weight should be attached to the candour argument, La Forest J. noted in Carey that many courts had significantly limited its application, stating: “[46] I am prepared to attach some weight to the candour argument but it is very easy to exaggerate its importance.

Basically, we all know that some business is better conducted in private, but generally I doubt if the candidness of confidential communications would be measurably affected by the off-chance that some communication might be required to be produced for the purposes of litigation. Certainly the notion has received heavy battering in the courts.” [ 108 ] The documents are old, fact specific and relevant to the litigation.

I am satisfied that revelation of the documents to the Defendants will have a minimal effect on the ability of the Cabinet to effectively operate in the future, in developing fuel or any other policies. It would be unfair to the Defendants if they were not produced. IV. CONCLUSION [ 109 ] Exhibits A, B and C deal with overall fuel supply policies and are not concerned with the bad gas issue.

I find they are protected from disclosure by the public immunity privilege and do not have to produced to the Defendants. [ 110 ] I am satisfied, after considering all of the factors, that the scales tip in favour of the disclosure of the remaining documents. They will be produced to the Defendants within 30 days. They will have the same conditions attached to them as those found in

Schedule 1 of the Health Services judgment, with the necessary modifications. These conditions are attached as part of this judgment.

[ 111 ] The Defendants are awarded lump sum party-party costs of $1,250 each, inclusive of disbursements that are in the cause. Dated at the City of Iqaluit this 10th day of February, 2011. _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice ______________________________________________________ Corrigendum of the Reasons for Judgment Reserved of The Honourable Mr. Justice E. Johnson _______________________________________________________ In paragraph [4] the sentence “two supplementary affidavits of Mr. Manzell” has been corrected to read “Mr. Mansell”.

In paragraph [106] the term “litigant has been corrected from “litiga” to “litigant.”. Please replace the amended pages in your hard copy of the judgment.

SCHEDULE 1 TO THE JUDGMENT OF MR. JUSTICE EARL D. JUSTICE OF FEBRUARY 01, 2011 IN THE NUNAVUT COURT OF JUSTICE NO. 08-04-172-CVC IQALUIT REGISTRY CONDITIONS ON DISCLOSURE AND USE OF CABINET DOCUMENTS ORDERED PRODUCED 1. Each Cabinet document produced pursuant to the direction of Mr. Justice Earl D. Johnson shall be clearly stamped or marked on the first page with the following notation:

"This is a confidential government document. By a February 09, 2011 Order of the Nunavut Court of Justice, the contents of this document shall not be disclosed to or referred to by any person other than parties to the litigation in Nunavut Court of Justice Docket No. 08-04-172-CVC (Iqaluit Registry), Government of Nunavut as represented by the Department of Community and Government Services and the Department of Finance v. Northern Transportation Company Limited and Refinery Associates of Texas, Incorporated, or their respective counsel." 2.

Every Cabinet document, or any copy or copies thereof, which may be entered in evidence during the trial of this action is to be segregated from other documents and retained by the Clerk of the Court in a separate binder. The binder containing Cabinet documents or copies thereof is to be clearly marked "Confidential Documents - Not to be Disclosed without leave of the Court". It shall not be made available or disclosed to the public without an Order of the Court, and is to be held by the Court separately from the remaining contents of the court file.

Following the expiration of any appeal period, any binder containing Cabinet documents is to be delivered up by the Court to counsel for the Government of Nunavut, as represented by the Department of Community and Government Services and the Department of Finance. 3.

Before producing a Cabinet document for the purposes of viva voce evidence at the trial of this action, or before reading any part of a Cabinet document into the record, counsel for the party intending to do so shall inform counsel for the Government of Nunavut as represented by the Department of Community and Government Services and the Department of Finance, whereupon counsel may make submissions to the Court concerning procedures to be adopted to safeguard the confidentiality of the Cabinet document or the contents thereof. 4.

Tapes and recordings of proceedings at the trial of this action which reference the Cabinet document(s), or any information contained therein, are to be retained by the Court in the manner prescribed in paragraph 2 above. No transcript of any tape or any part of the proceedings which reference the Cabinet document(s), or any information contained therein, may be made available to a member of the public without an Order of the Court.

Any transcript of any tape or any part of the proceedings which reference the Cabinet document(s), or any information contained therein, made at the request of counsel to a party to these proceedings shall be treated as a Cabinet document and be subject to the conditions set out herein. 5.

The contents of Cabinet documents may be discussed with, and copies of Cabinet documents provided to officers of a party, to counsel for that party, and to independent professional advisers retained by counsel for the party in connection with this action, but only after that officer, party or professional adviser has signed a written undertaking to this Court not to divulge the contents of the Cabinet document (in the form "B" attached).

Any copies of Cabinet documents, and all notes or work product making reference to Cabinet documents or any information contained therein which is in the possession of officers of parties will be, following the expiration of any appeal period in this action, returned to counsel for the party and destroyed or surrendered to counsel for Government of Nunavut, as represented by the Department of Community and Government Services and the Department of Finance and no copies shall be retained. 6.

If counsel for a party considers it necessary to obtain advice in connection with this action, a Cabinet document may be shown to other persons, and the contents thereof may be discussed with them, but only after those persons have signed a written undertaking to this Court in the form attached hereto as

Schedule "C". Cabinet documents or copies of Cabinet documents shall not be given to those persons with whom the contents are discussed pursuant to this condition. Upon the expiration of any appeal period in this action, counsel for a party who has shown or discussed Cabinet documents with any person from whom an undertaking in the form attached hereto as

Schedule "C" shall obtain from that person, all notes or work product of that person making reference to Cabinet documents or the confidential government information, and shall forthwith destroy the material or surrender it to counsel for Government of Nunavut, as represented by the Department of Community and Government Services and the Department of Finance. 7. Cabinet documents may be referred to and marked by legal counsel for the parties in examinations for discovery in this action, but no officer of any party and no party may be present during that examination unless they shall have first signed a written undertaking to this Court in the form attached hereto as

Schedule "C", not to use the information discovered for any purposes other than this action, and not to disclose in any manner any Cabinet documents or any evidence relating to the documents or their contents given on discovery. The court reporter on the examination for discovery shall sign an undertaking in the form attached hereto as Schedule"A". 8. Counsel for any party shall not in any manner disclose the contents of evidence given on an examination for discovery of any party with respect to any Cabinet document, except to the persons described above and then only on the terms prescribed above.

9. Counsel for any party shall deliver to the Court, any undertakings signed pursuant to these conditions within 10 days of the date upon which they are signed. 10. Counsel for the parties shall account for and deliver up to counsel for the Defendant , the Government of Nunavut, as represented by the Department of Community and Government Services and the Department of Finance at the conclusion of the trial, or any appeal, all copies of Cabinet documents produced in the course of these proceedings.

Counsel for the parties shall at the conclusion of the trial or any appeal in this action, destroy all notes or work product making reference to the Cabinet documents or any information contained therein, including any such material which is returned to counsel by professional advisors, representatives of the parties, or the parties.

SCHEDULE "A" ACKNOWLEDGMENT I HEREBY ACKNOWLEDGE that, in the course of recording or transcribing evidence in the Nunavut Court of Justice Docket No. 08- 04-172-CVC (Iqaluit Registry), Government of Nunavut as represented by the Department of Community and Government Services and the Department of Finance v. Northern Transportation Company Limited and Refinery Associates of Texas, Incorporated, I have access to confidential government information.

I hereby acknowledge that, except as required by law, I will not disclose the contents of documents or the nature or substance of any evidence which I may hear, to any person other than the parties to the litigation, their counsel, or to the Nunavut Court of Justice. Dated at __________________, in the Territory of Nunavut, this ____ day of _____________, 201__. (Signature) (Print Name)

SCHEDULE "B" UNDERTAKING I HEREBY UNDERTAKE TO THE NUNAVUT COURT OF JUSTICE, that I will not use any information which I may receive in connection with any Cabinet document(

s) disclosed pursuant to the February 09, 2011 Order of Mr. Justice Earl D. Johnson for any purposes other than providing evidence with respect to the matters in issue in Nunavut Court of Justice Docket No. 08-04-172-CVC (Iqaluit Registry), Government of Nunavut as represented by the Department of Community and Government Services and the Department of Finance v. Northern Transportation Company Limited and Refinery Associates of Texas, Incorporated ("Action").

I HEREBY FURTHER UNDERTAKE not to disclose in any manner any portion of such Cabinet document(s), or any knowledge which I may receive in connection with such Cabinet document(s), to any person other than legal counsel in the Action or to the Court. Any copies made of the Cabinet documents and all notes or work product making reference to the Cabinet documents or any information contained therein will be, following the expiration of any appeal period, sent to counsel from whom it was received. I ACKNOWLEDGE that a copy of this undertaking will be filed with the Nunavut Court of Justice within 10 days.

Dated at ________________, in the Territory of Nunavut, this ____ day of ____________, 201__. (Signature) (Print Name)

SCHEDULE "C' UNDERTAKING I HEREBY UNDERTAKE TO THE Nunavut Court of Justice, that I will not use any information which I may receive in connection with any Cabinet documents(

s) disclosed pursuant to the February 09, 2011 Order of Mr. Justice Earl D. Johnson for any purposes other than providing evidence with respect to the matters in issue in Nunavut Court of Justice Docket No. 08-04-172-CVC (Iqaluit Registry), Government of Nunavut as represented by the Department of Community and Government Services and the Department of Finance v. Northern Transportation Company Limited and Refinery Associates of Texas, Incorporated ("Action"). I HEREBY FURTHER UNDERTAKE not to disclose in any manner any portion of such Cabinet document(

s) or any knowledge which I may receive in connection with such Cabinet document(s), to any person other than legal counsel in the Action or to the Court. Any notes or work product making reference to the Cabinet documents or the confidential government information contained therein will be, following the expiration of any appeal period, returned to counsel for the party which contacted me in connection with the Action. I ACKNOWLEDGE that a copy of this undertaking will be filed with the Nunavut Court of Justice within 10 days. Dated at _________________, in the Territory of Nunavut, this _____ day of ______________, 201__. (Signature) (Print Name)