3.18: Notice to obtain record of proceedings
5.11: Order for record to be produced

Case Summary

The Applicant sought Judicial Review of a decision of the Minister of Environment and Parks. In the meantime, the Applicant applied to obtain a Briefing Note that formed part of the records reviewed by the Minister to make the decision under appeal, and over which the Minister asserted crown/public interest privilege.

The Applicant sought disclosure of the Briefing Note under Rule 3.18(2)(e) and section 124 of the Public Lands Act, RSA 2000. Rule 3.18(2)(e) required the Respondent to send the Applicant “anything... relevant to the decision or act in the possession of the person or body” or provide an explanation as to why it could not be sent.

In the alternative, the Applicant asked the Court to review the Briefing Note under Rule 5.11(2)(a) to determine if it should be produced. Rule 5.11(2)(a) gives the Court permission to inspect a privileged record to determine whether the claim for privilege has been properly asserted.

Madam Justice Yungwirth considered the factors for balancing the public interest in confidentiality with the disclosure of documents concerning public decision making. The onus for establishing that a document should not be disclosed because of public interest privilege or immunity rested with the government. Her Ladyship applied the six factors listed by the Supreme Court of Canada in Carey v Ontario, [1986] 2 SCR 637 and held that the Crown failed to establish public interest privilege.

After finding that public interest privilege did not apply, Madam Justice Yungwirth followed the Supreme Court of Canada’s caution in British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 and inspected the Briefing Note in private, nonetheless. Yungwirth J held that the Briefing Note was relevant and material to the Minister’s decision and not subject to crown/public interest privilege. The Briefing Note was ordered to be produced under Rule 3.18(2)(e) as part of the Minister’s Certified Records of Proceedings for the Judicial Review.

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