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My Favourite Case

My Favourite Case

The comedian Billy Connolly has this bit where he wonders aloud about the Queen of England: Does she think the world smells like fresh paint?

The thinking is that wherever the Queen goes, it is a special occasion for those who welcome her. They repaint their walls so everything looks nice. And therefore everywhere the Queen visits, it smells like fresh paint.

Connolly’s Queen comment is an example of what is commonly called “living in a bubble”. You think the world is a certain way because that is how you experience it, but it actually isn’t. And then one day, the bubble gets popped, you fall out into the world, and you realize that all the information you collected about the world was tainted by your limited perspective.

The bubble metaphor is often associated with discovery. For example, the discovery that the earth is round, or that the earth revolves around the sun, totally disrupted the previous view of the world. But scientific discoveries like these are relatively rare. Small discoveries happen all the time, but big, bubble-popping, world-view disrupting discoveries are unique events in human history.

At a personal level, once you reach a certain age, you get relatively comfortable in your bubble, and it is not often popped. The bubble around you hardens and becomes a sort of a lens through which you confidently view the outside world. The bubble contains your cognitive biases; it determines how you process information.

All this is at the core of how litigation operates at a practical level. Usually it goes unnoticed, because the two sides live in the same bubble. This should not be surprising: lawyers live in the same legal system, use a common vernacular to understand the world around them, and operate based on the same rules and precedents. For the most part, lawyers agree with each other on governing principles.

But sometimes there is bubble-popping litigation. Sometimes one of the parties shows up at Court, points to the other side, and says, “You think the world smells like fresh paint. But it doesn’t.”

And that brings us to my favourite case.

Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 is my favourite case because it’s a bubble-popper where you least expect it. It doesn’t deal with new legal concepts or new factual situations. In other words, it isn’t a case where everyone’s bubble presents as thin and uncertain. Goodis takes a bubble that has already hardened, and pops it.

The case started with a request from a journalist to Ontario Ministry of Correctional Services pursuant to the Access to Information Act. An adjudicator in the office of the Commissioner ordered disclosure of a certain number of pages over which the Ministry claimed solicitor-client privilege.

On judicial review of that decision before a judge of the Divisional Court, the attorney for the journalist requested that she herself be given access to the privileged documents. The judge granted her access, subject to a confidentiality undertaking. The Ministry asked the Divisional Court to set aside the order; they refused. The Ministry appealed to the Court of Appeal; they dismissed the appeal.

The full reasons of the Ontario Court of Appeal given by endorsement read as follows:

[1]               The Divisional Court found that Blair J. sitting as a judge of that court had jurisdiction to control the process of the court and to ensure procedural fairness to all parties.  In our view, Blair J.’s order was a discretionary one made within his jurisdiction.

[2]               The Divisional Court found no basis for interfering with his order, nor do we.  The appeal is therefore dismissed.  The Requestor is entitled to her costs fixed in the total amount of $9,400.00 including the costs of the application for leave to appeal.

The message of the decision is clear: This is not an issue of great controversy to everyone in the bubble. Every decision-maker affirmed that the requester’s counsel could be granted access to the privileged documents. This process was described in Fuda v. Ontario (Information and Privacy Commissioner), 2003 CanLII 12661, which was relied upon by the Divisional Court judge in Goodis who dismissed the judicial review:

Usual Practice

[4] As has become the usual practice, prior to filing its record, the Commissioner brought this motion to seal those parts of the record that are private to ensure that the judicial review is not rendered moot by disclosure of the very records that are at issue. The public record contains the balance of the Commissioner’s records including relevant correspondence, the file’s formal documents, the non- confidential portions of submissions and the Commissioner’s order.

[5] Where parties are represented by counsel, the proposed sealing order usually provides for counsel’s access to the private record for the purpose of preparing for and presenting argument. Access to the record is subject to counsel signing a form of undertaking to keep the contents of the private record confidential even from their own client, and, upon disposition of the judicial review, to return the material to the Commissioner. Such a sealing order, with access to counsel, usually issues on consent.

[6] There are exceptions to such access. Counsel have been denied access to the private record where counsel is also retained by the party in a related civil action and the information is relevant to the other proceeding. Access has also been denied to an in-person litigant because disclosure would be dispositive of the issue.

This is how the system worked.

The Ministry appealed. And the Supreme Court agreed with the Ministry. The Ministry’s privilege claim changed everything.

Indeed, because the Ministry was claiming solicitor-client privilege on the materials in question, the “usual practice” of providing disclosure to counsel based on an undertaking of confidentiality was unacceptable to the Supreme Court.

Holding that privileged materials cannot be disclosed – to a requester or to her counsel – unless “absolutely necessary”, a unanimous bench allowed the appeal and quashed the orders of the courts below. The bubble was burst.

But in legal circles, bubbles don’t burst because of objectively important discoveries. There was no Copernican moment when the parties looked around the courtroom and realized: this case is all about the importance of privilege. In law, it is the independent analysis of the courts that bursts bubbles. Goodis was only a privilege case because the Supreme Court said it was. Until then, at four levels of decision-makers, it was a case about case management and access to information.

And that is the wonder – and the danger – of litigation more generally. You see your case as a straightforward access to information disclosure matter, and then the Court comes in and bursts your bubble. It was a privilege case all along.

 

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