2014 NUCJ 1, 2014 NUCJ 1

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Nunavut Tunngavik Inc. v Canada (Attorney General), 2014 NUCJ 01 Date of Judgment (YMD): 20140115 Docket Number: 08-06-713-CVC Registry: Iqaluit Applicants: The Inuit of Nunavut as Represented By Nunavut Tunngavik Incorporated -and- Respondent: Attorney General of Canada Third Parties: -and- The Commissioner of Nunavut as Represented by the Government of Nunavut and the Government of Nunavut ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicants): Dougald Brown Counsel (Respondent): Kevin P. Kimmis Counsel (Third Parties) Barbara McIsaac Location Heard: Iqaluit, Nunavut Date Heard: December 13, 2013 Matters: Canada Evidence Act, RSC 1985, c C-5 , s 39 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The Applicant Plaintiff [Plaintiff] and Third Parties apply for an Order under

section 39 of the Canada Evidence Act, RSC 1985, c C-5 [CEA] compelling the Respondent Defendant [Defendant] to produce by March 31, 2014 the Certificate setting out the documentary information that the Defendant claims are confidential because they constitute a confidence of the Queen’s Privy Council of Canada. [ 2 ] The Defendant argues that the March 31, 2014 timeline is impossible to meet because of the volume of documentation involved and other similar commitments of the Privy Council Office [PCO]. It argues that December 31, 2014 is a more appropriate date. II.

FACTUAL BACKGROUND [ 3 ] On December 7, 2006 the Plaintiff commenced a billion dollar legal action against the Defendant alleging breaches of the 1993 Agreement between the Inuit of the Nunavut Settlement and her Majesty the Queen in Right of Canada. [ 4 ] Examinations for discovery commenced in January, 2009.

Due to the volume of documentary productions, the parties agreed to proceed with oral examinations for discovery as document productions proceeded. [ 5 ] Following 26 days of oral discovery, the examination of the Defendant's representative was adjourned in November 2010, pending completion of the Defendant's production of documents. [ 6 ] Since November 2010, the Defendant has completed some 35 days of oral examination of the Plaintiff's representative.

The Defendant is scheduled to complete its oral examination for discovery of the Plaintiff on January 30, 2014 and the Plaintiff is scheduled to have a further six days of oral examination of the Defendant's representative in February and March of 2014. [ 7 ] The Plaintiff delivered its Statement as to Documents on December 3, 2012 and a Supplementary Statement as to Documents on August 7, 2013. [ 8 ] In September, 2013 all parties agreed on a litigation timetable that was incorporated in Case Management Memorandum No. 4 [Memorandum] issued by the Court on October 16, 2013.

The timetable requires the Defendant to file a Statement as to Documents no later than December 31, 2013, that will bring its documentary production current to December 31, 2012. [ 9 ] During examinations for discovery, counsel for the Defendant frequently stated that the Defendant would have to review various documents to determine whether it would advance a claim of privilege under

section 39 of the CEA . The Defendant has determined that as of November 28, 2013 there are approximately 3,200 documents that could qualify for the privilege claim. That number is likely to increase as the Defendant completes its review of documents for inclusion in the List of Documents to be produced by December 31, 2013. [ 10 ] The usual practice of the PCO is that it does not review the documents for a claim of privilege until litigation counsel has completed an initial review.

Upon completion of the review by litigation counsel the PCO then analyzes each document to determine whether a cabinet confidence privilege could apply. The reason for proceeding in this fashion is that the PCO cannot reasonably assess whether it is in the public interest to object to the disclosure of information constituting cabinet confidences without putting the information in the proper context.

[ 11 ] As a result, none of the documents identified during the examinations have been submitted to the PCO. However, as a result of this application the PCO has agreed to accept a submission of documents produced up to December 31, 2012.

It will accept a separate submission of documents produced after December 31, 2013 and the timing of subsequent certificates will depend on the number of documents reviewed. [ 12 ] Before the Clerk of the PCO makes a final determination the Office of Counsel in the PCO [PCO Counsel] carefully analyzes each document in the submission and prepares detailed descriptions and legal analysis to provide independent legal advice to the Clerk.

PCO Counsel requires that the documents submitted for review be provided in a specific format with sufficient information to prepare its submission to the Clerk. [ 13 ] PCO Counsel currently has two lawyers and one support staff dealing with a high volume of requests for review under

section 39 of the CEA , as well as requests for review of documents for the application of

section 69 of the Access to Information Act, RSC 1985, c A- 1 [ATIA] and relevant sections of the Privacy Act, RSC 1985, c P-21 . It is also handling requests from the Office of the Auditor General and providing legal advice on these issues to the whole of government.

There are currently 51 requests under CEA containing approximately 7,000 documents and approximately 100,000 pages; 185 requests under ATIA containing 3,898 documents and 46,492 pages; and finally 8 Auditor General requests containing 59 documents and 1,878 pages. [ 14 ] Although supported by PCO Counsel, the Clerk must decide whether the information in the documents constitutes a Cabinet confidence and whether in the circumstances of the particular litigation he should object to its disclosure.

This process requires the Clerk to conduct a detailed and complex analysis of the documents that takes into account the context in which the documents were prepared and involves the balancing of competing public interests.

The Clerk cannot delegate this responsibility. [ 15 ] The task of reviewing documents to prepare a certificate is time consuming because the Clerk must ensure the documents are treated consistently throughout the entire submission, are consistent with other litigation files and access to information requests, and that there is no duplication of documents. [ 16 ] The litigation timetable set out in the Memorandum also set out that the trial of the action was to provisionally commence on March 15, 2015. It would continue for twenty weeks in four weeks segments with two weeks off between each segment.

Assuming the time estimate is accurate the trial would be completed on September 25, 2015. III. ARGUMENTS A. Plaintiff [ 17 ] Relying on Babcock v Canada (Attorney General), 2002 SCC 57 at paras 27-28 , [2002] 3 SCR 3 [Babcock] , the Plaintiff notes the comments of Chief Justice McLaughlin that the Clerk must answer two questions before certifying information. First, is it a Cabinet confidence within the meaning of sections 39(1) and 39(2) of the CEA . Second, is it information that the government should protect taking into account the competing interests in disclosure and retaining confidentiality?

A valid certification must meet the following conditions: (

a) the certification must be done by the Clerk of the Privy Council or a minister of the Crown; (

b) the information must fall within the categories described in s. 39(2); (

c) certification must be for the bona fide purpose of protecting Cabinet confidences in the broader public interest and not gain tactical advantage in the litigation; and (

d) certification must be to prevent disclosure of confidential information.

[ 18 ] The Plaintiff argues that Samson Indian Band and Nation v Canada, [1997] FCJ No 1328 , 220 NR 41 [Samson] , dealt with a matter that was analogous to the issue before this Court in this motion. That case was also a long-running case that involved voluminous productions and where counsel for the Crown was unable to advise the Court when an affidavit of documents could be delivered. [ 19 ] The Federal Court of Appeal in paragraph 11 of Samson noted that a case management judge is required to approach the normal requirements for documentary production “with some degree of flexibility”.

The Court also noted that the judge must do “as much as possible” to avoid pre-trial delay. In balancing these considerations the Court held the Crown should be given a further three months to deliver an affidavit of documents and that any further extension could be granted by the judge only on a motion supported by affidavit evidence setting out the reason an extension was needed and the amount of time required to complete the process. [ 20 ] The Plaintiff argues that this Court should similarly impose a deadline for the delivery of the

section 39 certificate for the following reasons: (

a) this proceeding is now seven years old; (

b) the existence of documents that might give rise to an objection to disclosure has been known for several years; (

c) no steps have yet been taken to provide documents to the Privy Council Office for review; (

d) the Defendant has not provided any evidence as to when documents will be provided to the Privy Council Office or when the Clerk's review is likely to be completed; (

e) the scope of the Defendant's documentary production cannot be finally ascertained until any

section 39 certificate is delivered; and (

f) the trial of this proceeding should not be delayed by reason of the Defendant’s inaction. [ 21 ] Taking these reasons into consideration this Court should impose a deadline of March 31, 2014 to deliver any Certificate under

section 39 of the CEA . B. Third Parties [ 22 ] The Third Parties adopted the arguments of the Plaintiff and added that the potential for trial delay was increased because of the possibility that the Plaintiff and/or Third Parties may seek judicial review challenging the Certificate as stated in paragraph 43 of Babcock. C. Defendant [ 23 ] Given the facts noted in paragraphs 10 to 15 above the Defendant argues that the date proposed by the Plaintiff and Third Parties is insufficient to allow for litigation counsel to provide the documents to the PCO with the required contextual information and for the Clerk to meet his personal review obligations under

section 39 of the CEA . To the date of argument the Defendant had identified approximately 3,200 documents that may be subject to a claim of Cabinet privilege. It is likely that further documents will be identified when the Defendant completes its List of Documents on December 31, 2013 that could raise the number to as high as 6,000 documents. [ 24 ] The Defendant acknowledges the need to expedite the review process by the PCO in order to meet the trial deadline but argues that the March 31, 2014 timeline is impossible to meet because of the complexity of the review process.

Before litigation counsel provides the documents to the PCO Counsel to apply the two-part process outlined in Babcock , litigation counsel must spend time to provide sufficient background and context to indicate whether they are Cabinet confidences. After receipt of the documents with the background and context, PCO Counsel must advise the Clerk if the information falls under one of the categories described in section 39(2) of the CEA .

The Clerk must then determine whether it is desirable that confidentiality over the confidence be retained taking into account the competing interests in disclosure and retaining confidentiality. To carry out the first step the Clerk must provide a description of the document sufficient to establish on its face that the information contained therein is a Cabinet confidence within the meaning of section 39(2) . [ 25 ] As held in Babcock , judicial review of the Clerk’s certificate is very limited. The court cannot review the documents described in the certificate.

The certificate can only be challenged on the basis of the sufficiency of the document descriptions in the certificate or in

the wrongful exercise of the Clerk’s authority.

As held in Pelletier v Canada (Attorney General), 2005 FCA 118 at paras 18-21 , [2005] 3 FCR 317 , the most common remedy is an order requiring the Clerk to provide a more complete description of the documents. [ 26 ] The March 31st deadline also fails to take into account that the Clerk must personally review each document to determine if a Cabinet confidence exists, and if it does, whether the public interest dictates that he should object to the disclosure of the information. [ 27 ] It also fails to recognize the Clerk’s other obligations with respect to other applications.

PCO Counsel is currently dealing with more than 200 submissions that involve the review of Cabinet confidences that comprise in excess of 11,000 documents and some 150,000 pages. The application before the court is the larger of two exceptionally large applications being reviewed by the Clerk. Finally the Clerk has numerous other duties related to his role as the Head of the Public Service and the Deputy Prime Minister of Canada. [ 28 ] Taking all these considerations into account, it is impossible for the Defendant to meet a March 31, 2014 deadline.

To get documents into the hands of counsel for the Plaintiff and Third Parties as expeditiously as possible, the Defendant proposes that the ongoing review of relevant documents for Cabinet confidences be conducted without the provision of a

section 39 certificate by the Clerk. Rather, PCO Counsel will review the documents and provide a detailed list of those constituting or containing Cabinet confidences within the meaning of section 39(2) . It is further proposed that the documents be reviewed, and the detailed list be provided to the Plaintiff and Third Parties counsel, along with any documents not found to be Cabinet confidences following review, in tranches starting with 60 documents that will be reviewed by January 15, 2014.

The timing for production of the list of documents constituting or containing Cabinet confidences, will be subject to ongoing discussion and collaboration with Plaintiff and Third Parties counsel as to the appropriate scope of production. In addition, it is submitted that the review of Cabinet confidences be supervised on an ongoing basis by the Court as part of case management. [ 29 ] As an alternative the Defendant proposes that any certificate be delivered on or before December 15, 2014.

That date balances the time for litigation counsel to provide the documents to PCO and for the Clerk to complete his review of the documents on the one hand, with the time required by the Plaintiff and Third Parties to examine Canada’s deponent on documents released as a result of that review on the other, as well as time to bring a judicial review application on the limited basis allowed for in Babcock . [ 30 ] For documents produced in the two subsequent Lists of Documents contemplated by the litigation plan (June 30, 2014 and December 31, 2014 respectively), the Defendant proposes that the timing and approach regarding Cabinet confidences be determined by way of case management.

Because those lists will encompass documents created in 2013 and 2014 respectively, the number of documents that may be or may contain Cabinet confidences should be significantly lower. However, deadlines for those Lists of Documents should not be set until the number of documents to be reviewed by the Clerk is known. Those numbers will not be available until those lists are produced. D. Oral Argument [ 31 ] Recognizing the Clerk’s onerous responsibilities the Plaintiff and Third Parties were not opposed to the proposed staged approach in tranches with several updated certificates.

However, both were concerned by the Defendant’s delay in providing the Clerk with the documents concerned and any necessary background and context. The Defendant’s interest in having the maximum time available does not trump the Plaintiff’s interest in getting the discovery phase of this case completed so that it and the Third Parties can prepare for trial in an orderly way.

Both suggested that the tranches of documents be carried out at a pace that would see the process completed by June 30, 2014. [ 32 ] The Defendant argued in response that the shorter time limit proposed by the Plaintiff and Third Parties could result in the production of a certificate that would not meet the requirements of Babcock. The Defendant emphasized that even if the Clerk filed a formal certificate by June 30 there would likely be other documents that would be identified as being subject to the privilege because there was ongoing document production in 2014.

There was also further document production that could result from the 2014 discoveries.

IV. ANALYSIS [ 33 ] I accept that the Clerk has a significant workload in completing the documentary review and issuing the certificate under

section 39 . However, this court has committed more trial time to this action in 2015 than any trial since this court was created in 1999. In addition to committing the time of a judge there will be significant demands on the civil court staff and the Government of Nunavut in providing a courtroom to handle the trial. There will also be a requirement for electronic technical support to handle the documents necessary for the trial.

Now that the cast has been set with agreement of all counsel there cannot be any delay in commencement of the trial. [ 34 ] I am satisfied that the Defendant’s date of December 15, 2014 to provide a Certificate will not allow sufficient time to deal with any potential applications for judicial review nor for trial preparation. I am also satisfied that a significant amount of the time requested will be devoted to identifying those documents that are potentially subject to privilege and providing the necessary background and context for PCO Counsel.

This work should have been substantially completed by the date the motion was heard leaving a much lesser burden for the 2014 document productions. However, regardless of the cause of the problem I have to find a solution that will preserve the integrity of the trial date and meet the requirements of

section 39 . [ 35 ] The informal option of providing the Plaintiff and Third Parties with a list of documents as they are reviewed by PCO Counsel in tranches on an ongoing basis and delaying the production of the certificate is the best approach under the circumstances. As I understand the proposal, after PCO Counsel have reviewed each tranche of documents litigation counsel will provide a list to the Plaintiff and Third Parties of those documents that will list those documents that are subject to a claim of privilege and those that will be produced with the list.

The Clerk will not be involved in the process and there will be room for some negotiation between counsel with my participation where required. At the end of the process the Clerk will produce the formal certificate so that counsel may make a judicial review application if necessary. [ 36 ] However, at this time I am not going to set a specific date for the production of the certificate.

That date will depend on the progress made by the Defendant between now and civil chambers on June 9th at 1:30 and this motion is adjourned to that date. [ 37 ] The Defendant’s proposal to produce 60 documents per month is not acceptable. It will have to devote more resources to this task and set a more robust pace to avoid a date before December 15th being set for the production of the certificate. [ 38 ] Counsel will advise the Administrator of Judicial Services, Denise Murphy, for any case management conferences that may be required before the return of the motion in June.

Counsel will also communicate with Ms. Murphy about a convenient date in the near future for a case management conference with the Senior Judge about the electronic document management required for the trial. Dated at the City of Iqaluit this 15th day of January, 2014. (original signed by Justice Johnson) Justice Earl D. Johnson Nunavut Court of Justice