Date: January12, 2001

Docket: SH No. 165903

2000
IN THE SUPREME COURT OF NOVA SCOTIA
[Cite as 2001 NSSC 6]

In the Matter of an appeal pursuant to Section 41

2001 NSSC 6 (CanLII)

of the Freedom of Information and Protection of
Privacy Act, S.N.S. 1993, c. 5

Between:

DANIEL O’CONNOR,
Appellant

-and-

HER MAJESTY THE QUEEN

IN THE RIGHT OF NOVA SCOTIA
as represented by DR. PATRICIA RIPLEY
Deputy Minister of the
Priorities & Planning Secretariat,

Respondent

DECISION (APPEAL)

Heard Before: the Honourable Associate Chief Justice Michael MacDonald at

Halifax, Nova Scotia

Date Heard: November 29, 2000

Written Release of
Decision: January 12, 2001

Counsel: Graham J. Steele, Barrister & Solicitor

for the Appellant

Louise W. Walsh Poirier. Department of Justice (NS)

for the Respondent
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[1] The Provincial Government, through its Priorities and Planning Secretariat, has undertaken

a critical review of all its existing programs. In its two-phased approach, it identified the

purpose, cost and policy objectives of each program (phase one) culminating with these

2001 NSSC 6 (CanLII)

programs being categorized according to their merit (phase two). The assigned category,

(either essential, necessary or discretionary) would in turn dictate the program’s future.

[2] Pursuant to the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c.5,

(FOIPOP Act), the Appellant Mr. Dan O’Connor asked the Respondent Government to

release detailed information pertaining to this review. While some information was

forthcoming, the same was insufficient from Mr. O’connor’s perspective. Mr. O’Connor

therefore sought the assistance of the FOIPOP Act Review Officer, Mr. Darce Fardy.

Following Mr. Fardy’s report, more information was forthcoming but the Government

refused to produce everything sought by Mr. O’Connor. It maintained that the undisclosed

information was protected by Cabinet confidentiality. The Appellant disagrees and therefore

appeals to this Court for full production.

Issues

[3] The main issue in this case is an interesting one. It involves the balancing of two conflicting

aspects of good government. On the one hand we have the public’s interest in a government

that is accountable. This means a government that is open and transparent. Thus we have the
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need for broad disclosure of government records. On the other hand, government must be

efficient and manageable. Thus the need for confidentiality at the highest level (the Cabinet).

2001 NSSC 6 (CanLII)

[4] The Nova Scotia Legislature’s attempt to achieve this balance is reflected the FOIPOP Act.

After providing for presumed accessibility (s.5), s. 13 deals with the exemption for Cabinet

confidentiality:

Deliberations of Executive Council

13 (1) The head of a public body may refuse to disclose to an
applicant information that would reveal the substance of deliberations of the
Executive Council or any of its committees, including any advice,
recommendations, policy considerations or draft legislation or regulations
submitted or prepared for submission to the Executive Council or any of its
committees.

Exceptions
(2) Subsection (1) does not apply to

(a) information in a record that has been in existence for ten or

more years;

(b) information in a record of a decision made by the Executive

Council or any of its committees on an appeal pursuant to an Act; or

(c) background information in a record the purpose of which is

to present explanations or analysis to the Executive Council or any of
its committees for its consideration in making a decision if

(i) the decision has been made public,

(ii) the decision has been implemented, or

(iii) five or more years have passed since the decision was
made or considered. 1993, c.5, s. 13

[5] Thus under a regime of presumed openness, s. 13(1) allows the Government to shield

information that would otherwise reveal the substance of Cabinet deliberations. In turn s.
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13(2) limits this shelter by listing that which is not protected by s.13(1). To withhold the

subject information, the Government must therefore establish:

2001 NSSC 6 (CanLII)

1. That it meets the requirements set out in s. 13(1), and

2. That it is not the type of information described in s.13(2).

Procedural Matters

[6] Before assessing the issues, first I will address some procedural matters.

[7] Section 41(1) of the FOIPOP Act establishes my jurisdiction to hear this appeal:

Appeal to Supreme Court

41 (1) Within thirty days after receiving a decision of the head of a
public body pursuant to Section 40, an applicant or a third party may appeal that
decision to the Supreme Court in such form and manner as may be prescribed by the
Nova Scotia Civil Procedure Rules or by the regulations.

[8] Section 42 (1) sets out my authority on appeal. It provides in part:

Powers of Supreme Court

42 (1) On an appeal, the Supreme Court may

(a) determine the matter de novo; and

(b) examine any record in camera in order to determine

on the merits whether the information in the record
may be withheld pursuant to this Act.
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[9] In the case at bar I have decided to resolve this matter de novo. I have as well reviewed the

subject information in camera. Furthermore, although Mr. O’Connor is the named

Appellant, I confirm that the Respondent, bears the burden of justifying its refusal. Section

2001 NSSC 6 (CanLII)

45(1) provides:

Burden of proof on head of public body

45 (1) At a review or appeal into a decision to refuse an applicant
access to all or part of a record, the burden is on the head of a public body to
prove that the applicant has no right of access to the record or part.

Section 13(1) - Cabinet Confidentiality

Overview

[10] My initial task is to determine the actual meaning of s. 13(1). I am guided by Driedger on the

Construction of Statutes (Butterworths Canada Ltd. 1994, 3rd ed.). At page 131, the author

confirms a modern rule that is rooted in pragmatism:

The modern rule. There is only one rule in modern interpretation, namely, courts are
obliged to determine the meaning of legislation in its total context, having regard to the
purpose of the legislation, the consequences of proposed interpretations, the
presumptions and special rules of interpretation, as well as admissible external aids.
In other words, the courts must consider and take into account all relevant and
admissible indicators of legislative meaning. After taking these into account, the court
must then adopt an interpretation that is appropriate. An appropriate interpretation
is one that can be justified in terms of (a) its plausibility, that is, its compliance with the
legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c)
its acceptability, that is, the outcome is reasonable and just.
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[11] I am as well guided by s. 9(5) of the Interpretation Act, (1989) R.S.N.S. c. 235 which

confirms a purposive approach to statutory interpretation:

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9(5) Every enactment shall be deemed remedial and interpreted to insure the
attainment of its objects by considering among other matters

(a) the occasion and necessity for the enactment;

(b) the circumstances existing at the time it was passed;

(c) the mischief to be remedied;

(d) the object to be attained;

(e) the former law, including other enactments upon the same or similar
subjects;

(f) the consequences of a particular interpretation; and

(g) the history of legislation on the subject.

[12] The purpose of the FOIPOP Act generally is set out in s. 2:

2 The purpose of this Act is

(a) to ensure that public bodies are fully accountable to the public by

(i) giving the public a right of access to records,

(ii) giving individuals a right of access to, and a right to correction

of, personal information about themselves,

(iii) specifying limited exceptions to the rights of access,

(iv) preventing the unauthorized collection, use or disclosure of

personal information by public bodies, and

(v) providing for an independent review of decisions made

pursuant to this Act; and

(b) to provide for the disclosure of all government information with

necessary exemptions that are limited and specific, in order to
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(i) facilitate informed public participation in policy formulation,

(ii) ensure fairness in government decision-making,

(iii) permit the airing and reconciliation of divergent views;

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(c) to protect the privacy of individuals with respect to personal
information about themselves held by public bodies and to provide
individuals with a right of access to that information. 1993, c.5, s.2

[13] Thus the FOIPOP Act’s fundamental goal is to promote open government. It should

therefore be interpreted broadly as other Nova Scotia cases have confirmed. This has been

accurately set out in the Appellant’s brief at paragraphs 11 to 13:

11. It is well-established that Freedom of Information legislation is to be

interpreted liberally in favor of disclosure. In Donham v. Nova Scotia (Attorney
General), Justice Edwards of this Honourable Court summarized the
applicable principles as follows (at p. 325):

(a) The exemptions must be strictly interpreted: Marchand v. Manitoba

(1990), 69 Man.R. (2d) 303; 74 D.L.R. (4th) 186 (Q.B.).

(b) The onus is on the Minister to prove that the information denied falls
within a specific and limited exemption: Davidson v. Canada (Solicitor
General) (1986) 98 N.R. 126 (F.C.A.).

(c) Any doubt ought to be resolved in favour of disclosure: Cyanamid

Canada Inc. v. Canada (Minister of National Health and Welfare)
(1992), 52 F.T.R. 22 (T.D.).

12. The Nova Scotia Court of Appeal has not often had the opportunity to
comment on freedom of information legislation, but in McLaughlin v. Halifax-
Dartmouth Bridge Commission (1993), 125 N.S.R. (2d) 288 (C.A.), the Court
stated (at p. 293): “The Nova Scotia Freedom of Information Act should be
construed liberally in light of its stated purpose.” Although decided under
predecessor legislation, MacLaughlin is still leading FOI case in Nova Scotia.

13. Shortly after the MacLaughlin case, the legislation was re-written and enacted
as S.N.S. 1993, c. 5. Commenting on the new legislation, Justice Kelly of this
Honourable Court noted that “the legislative intent of the current Act is for
even broader public disclosure of information relating to the legislative,
executive and judicial branches of government” (emphasis added): Atlantic
Highway Corp. v. Nova Scotia (1997), 162 N.S.R. (2d) 30 (S.C.) at p. 32.
 Page: 8

[14] At the same time, it is equally clear that the purpose of s. 13(1) is to protect Cabinet

confidentially as an important exception to broad disclosure.

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[15] La Forest, J. in Carey v. Ontario [1986] 2 S.C.R. 637, dealt with the importance of Cabinet

confidentiality in some detail (albeit in the context of government litigation). Beginning at

paragraph 49, he explains its fundamental purpose:

49 ...But I do not think that many people would give as the reason that premature
disclosure would prevent candour in the Cabinet. To my mind the most important
reason is that such disclosure would create or fan ill-informed or captious public or
political criticism. The business of government is difficult enough as it is, and no
government could contemplate with equanimity the inner workings of the government
machine being exposed to the gaze of those ready to criticize without adequate
knowledge of the background and perhaps with some axe to grind. And that must, in
my view, also apply to all documents concerned with policy making within departments
including, it may be, minutes and the like by quite junior officials and correspondence
with outside bodies. Further it may be that deliberations about a particular case
require protection as much as deliberations about policy. I do not think that it is
possible to limit such documents by any definition.

50 While some of these remarks may seem somewhat dated, I would agree that the
business of government is sufficiently difficult that those charged with the responsibility
for running the country should not be put in a position where they might be subject to
harassment making Cabinet government unmanageable. What I would quarrel with
is the absolute character of the protection accorded their deliberations or policy
formulation without regard to subject matter, to whether they are contemporary or no
longer of public interest, or to the importance of their revelation for the purpose of
litigation. Subsequent cases have addressed these issues.

[16] In the end Justice La Forest promotes a balanced approached. I refer to paragraph 79:

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
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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

2001 NSSC 6 (CanLII)

thought, even more important. So far as the protection of the decision-making process
is concerned, too, the time when a document or information is to be revealed is an
extremely important factor. Revelations of Cabinet discussion and planning at the
developmental stage or other circumstances when there is keen public interest in the
subject matter might seriously inhibit the proper functioning of Cabinet government,
but this can scarcely be the case when low level policy that has long become of little
public interest is involved.

Analysis

[17] Because Mr. O’Connor has not seen the subject material, it is important that I provide some

detail as to how I approached my review.

[18] The subject information was prepared by the secretariat of Cabinet’s Priorities and Planning

Committee; thus making s. 13(1) applicable if such information “...would reveal the

substance of [that committee’s] deliberations...”.

[19] The issue therefore becomes whether or not the subject information would reveal the

“...substance of [cabinet] deliberations...”. The key word is “substance”. While, based on

Carey, supra, it is safe to presume that Cabinet’s actual deliberations are confidential, does

the reference to “substance” broaden or limit that which is to be protected?

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[20] In this context, the word “substance” may allow two potentially conflicting interpretations.

It could broaden the meaning of “deliberations” to include all information upon which the

deliberations are based. That was the approach taken by the British Columbia Court of

2001 NSSC 6 (CanLII)

Appeal in Aquasource Ltd. v. B.C. (Information and Privacy Commissioner), [1998] B.C.J.

No. 1927 when interpreting British Columbia’s equivalent provision. I refer specifically to

paragraphs 39 and 48 where Donald J.A. noted:

39 I do not accept such a narrow reading of s. 12(1). Standing alone, “substance

of deliberations” is capable of a range of meanings. However, the phrase becomes
clearer when read together with “including any advice, recommendations, policy
considerations or draft legislation or regulations submitted ...”. That list makes it plain
that “substance of deliberations” refers to the body of information which Cabinet
considered (or would consider in the case of submissions not yet presented) in making
a decision. An exception to this is found in s. 12(2)(c) relating to background
explanations or analysis which I will discuss later.

48 What then is a workable test for s. 12(1) questions? The Attorney General
argues, and I agree, that the Commissioner took the right approach in another case:
Inquiry Re: A Request for Access to Records about the Premier’s Council on Native
Affairs (2 February, 1995), Order No. 33-1995, where he said at p. 5 of the decision:

The public bodies offered useful descriptions of each type of

record at issue in this dispute. A “Cabinet submission” and a
Treasury Board Chairman’s report contain some information, now
severed, that would necessarily be the object of Cabinet’s deliberation
with respect to “recommendations,” “advice,” and outlining a
suggested course of action. The internal evidence of the language used,
the public bodies argue, supports this argument. Furthermore, they
argue, “a Cabinet submission, by its nature and content, comes within
the ambit of s. 12(1).”

It is prepared for Cabinet and its committees. The

information contained in Cabinet submissions forms the basis
for Cabinet deliberation and therefore disclosure of the
record would ‘reveal’ the substance of Cabinet deliberations
[,] because it would permit the drawing of accurate inferences
with respect to the deliberations. (Argument for the Public
Bodies, pp. 9-10)

I agree with this general characterization of Cabinet submissions and

apply it specifically below.

[emphasis added]
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From that acceptance there emerges this test: Does the information sought to be
disclosed form the basis for Cabinet deliberations?

2001 NSSC 6 (CanLII)

[21] On the other hand, “substance” could refer to Cabinet’s actual deliberation process. In other

words, only that information touching on the actual deliberations would be protected. This

view would significantly limit the s. 13(1) exception in favour of more Government

disclosure.

[22] With respect, when comparing the two approaches, I prefer the latter interpretation. To

interpret the “substance of deliberations” as protecting all information “form [ing] the basis

of Cabinet deliberations”, would paint Cabinet confidentiality with too broad a brush.

Cabinet may base its deliberations on a variety of data, some of which deserves no protection

at all. In fact in the case at bar, the Respondent released to the Appellant information that

arguably could have “formed the basis for Cabinet’s deliberations”. Let me use a refer to

example. The cost of each program is no secret. In fact the Respondent, properly released

each program’s actual costs and future projected costs. Yet this uncontested information

would have clearly “form[ed] the basis for Cabinet deliberations”.

[23] However, at the same time s. 13(1) protects more than Cabinet’s actual deliberations (in a

verbatim sense). It would also protect information that would infer the “substance of cabinet

deliberations” (in a tangential sense). As the subsection provides, this would include
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“...advice [or] recommendations...prepared for submission to Cabinet or any of its

committees...”.

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[24] However, as earlier stated, a distinction must be made between advice (which is protected)

and mere factual information (which must be disclosed). This distinction was recognized

recently by the Manitoba Court of Queen’s Bench in Jaslowski v. Manitoba (Minister of

Justice) [1999] M.J. No. 348 when considering a similar advice and recommendation

exemption, Clearwater J. at paragraph 10 noted:

The subsection 23(1)(a) and (b) exemption (advice to a public body – sections 38, 39 and
41 of the old Act) has been considered by this court on more than on occasion [see
Brousseau v. Manitoba (Minister of Industry, Trade and Tourism (1996), 116 Man.R. (2d)
8 and Pollock v. Manitoba (Minister of Justice) (1995), 103 Man.R. (2d) 64]. The
purpose of this exemption is [to] promote open and candid discussion and advice
internally within the government with respect to the deliberative and decision-making
process. The “advice” referred to in s. 23(1)(a) and (b) must contain more than mere
information [see a decision of the Ontario Access and Privacy Commission dealing with
a similar provision in Ontario’s Freedom of Information and Protection of Privacy Act,
1987, in order #118 (appeal 890172)]. [Emphasis added]

[25] Clearwater J.’s reference to Ontario’s Order #118 is to a decision of Commissioner Sidney

B. Linden (as he then was) dated November 15, 1989. Beginning at page 2, Commissioner

Linden after referring to the relevant Ontario legislation and opined as follows:

Subsection 13(1) of the Act provides that:

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13. (1) A head may refuse to disclose a record where the

disclosure would reveal advice or recommendations of a public
servant, any other person employed in the service of an institution or
a consultant retained by an institution.

...The general purpose of the section 13 exemption has been discussed in Order 94

2001 NSSC 6 (CanLII)

(Appeal Number 890137) released on September 22, 1989. At page 5, I stated that:

...in my view, section 13 was not intended to exempt all

communications between public servants despite the fact that many
can be viewed, broadly speaking, as advice or recommendations. As
noted above, section 1 of the Act stipulates that exemptions from the
right of access should be limited and specific. Accordingly, I have
taken a purposive approach to the interpretation of subsection 13(1)
of the Act. In my opinion, this exemption purports to protect the free
flow of advice and recommendations within the deliberative process
of government decision-making and policy-making....

...In my view, “advice”, for the purposes of subsection 13(1) of the Act, must contain more
than mere information. Generally speaking, advice pertains to the submission of a
suggested course of action, which will ultimately be accepted or rejected by its recipient
during the deliberative process.

My interpretation of “advice”would appear to be consistent with the way in which the

word has been defined by the Quebec Commission d’accès à l’information (the
“Commission”) when interpreting a similar provision in its legislation entitled, An Act
respecting Access to documents held by public bodies and the protection of personal
information, R.S.Q. Chapter A-2.1. According to an analysis by Dussault and Borgeat
in Administrative Law, A Treatise, 2nd Edition, Vol. 3, Carswell, 1989 at page 347 the
Commission defined “advice” in its decision in the case of J. v. Commission scolaire
Jacques-Cartier (1985) 1 C.A.I. 82 as follows:

...advice is “an opinion expressed during debate”, the action of debating being
the fact of “studying in view of a decision to be made”. Advice is thus not an
opinion “that a person is made aware of to keep him informed”, but rather “to
invite that person to do or not to do a certain thing”. Considering therefore,
that advice implies a decision-making process in progress, the Commission
concluded “advice is counsel or a suggestion as to a line of conduct to adopt
during the process. Logically, it takes place after research and examination
into the facts, i.e. study, has taken place” [Tr.]
[Emphasis added]

[26] I accept Commissioner Linden’s analysis completely. Advice is part of the deliberation

process. It deserves s. 13(1) protection. The facts upon which the advice is based need not

be protected.
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[27] With this backdrop, I have in my Chambers reviewed the subject material. In so doing, I find

that all the withheld material constitutes advice given and/or recommendations made to

2001 NSSC 6 (CanLII)

Cabinet’s Priorities and Planning Committee by its secretariat. This includes:

a. The results of the above categorization process (with supporting

commentary), and

b. Each program’s alignment with the Government’s platform.

[28] This type of information, by its very nature, involves advice and/or recommendations. All

other information has been released to the Appellant. Subject to s. 13(2), therefore the held

information is exempt from disclosure.

Section 13(2) - Exceptions to Cabinet Confidentiality

Overview

[29] In keeping with the Act’s theme of openness, s. 13(2) recognizes that Cabinet confidentiality

is less significant with the passage of time and when advice has been acted upon by Cabinet.

La Forest, J. recognized this in Carey, supra (at paragraph 79).

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[30] Specifically, the Appellant asserts that even if the held information is exempt under s. 13(1),

it should nonetheless be released now because the relevant advice and/or recommendations

have been acted upon. Section 13(2)(c)(i) and (ii) are the relevant provisions:

2001 NSSC 6 (CanLII)

13(2) Subsection (1) does not apply to

(c) background information in a record the purpose of which is to present

explanations or analysis to the Executive Council or any of its committees for its
consideration in making a decision if

(i) the decision has been made public,

(ii) the decision has been implemented, ...

[31] This submission is based in part upon the following:

a. Deputy Minister Patricia Ripley’s letter of July 14, 2000 (Exhibit 21

of O’Connor affidavit) confirming that the program analysis was used as a

basis for the Government’s June, 2000 budget.

b. The Governments’s June, 2000 release of its policy brochure entitled

“Charting the Course” which was essentially an update on the PAO program.

[32] With the release of this document and with the June, 2000 budget being passed, the

Appellant contends that the subject advice and/or recommendations have now been acted

upon.
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[33] For its part, the Respondent maintains that the program review is an ongoing endeavour

that will be updated and relied upon in the future. In other words, the June 2000 budget was

just the start. This is explained in paragraph 2 of assistant deputy Finance Minister Ramsey

2001 NSSC 6 (CanLII)

Duff’s affidavit:

2. THAT a Program Analysis and Options Exercise was initiated by Cabinet to

review government programs and services in the context of its annual business
planning and budgeting cycles, starting with its 2000-01 business and budgeting exercise.

[emphasis added]

[34] This position was repeated in Mr. Duff’s viva voce testimony before me.

Analysis

[35] In reviewing all the materials both released and unreleased, and all the evidence before me,

I find that the program review is very much a work in progress. Except for 86 programs that

have been eliminated, it is not something upon which a final decision has been

“implemented or made public”. From the information that has been released, I note, for

instance, that for each program, the cost and work force projections are made to the fiscal

year 2001/2002.

[36] Therefore I find that s. 13(2) has no possible application vis à vis the Respondent’s ongoing

programs. To release this type of advice while an exercise is “in stream” would risk the
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orderly process of government which s.13(1) is designed to protect and for which La Forest,

J. expressed concern in Carey, supra.

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[37] However for the 86 programs that have been eliminated, any advice and/or recommendations

have certainly been acted upon. Section 13(2)(c) would therefore apply to them with the

relevant “background information” being released.

Background Information

[38] Thus, I must determine whether or not any of the subject documentation would be

considered “background material”. In this regard, I have the benefit of a specific definition.

Section 3(a) provides:

(a) “background information” means

(i) any factual material,

(ii) a public opinion poll,

(iii) a statistical survey,

(iv) an appraisal,

(v) an economic forecast,

(vi) an environmental-impact statement or similar information,

(vii) a final report or final audit on the performance or efficiency

of a public body or on any of its programs or policies,

(viii) a consumer test report or a report of a test carried out on a

product to test equipment of a public body,

(ix) a feasibility or technical study, including a cost estimate,

relating to a policy or project of a public body,
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(x) a report on the results of field research undertaken before a

policy proposal is formulated.

(xi) a report of an external task force, advisory board or similar

body that has been established to consider any matter and make reports or

2001 NSSC 6 (CanLII)

recommendations to a public body, or

(xii) a plan or proposal to establish a new program or to change

a program, if the plan or proposal has been approved or rejected by the head
of the public body;

[39] As an aside, I note with interest that under s. 3(a)(i) “background information means “any

factual materials”. Arguably, therefore, factual material is protected under s. 13(1).

Otherwise why would it be a s. 13(2) exception? Despite this seeming inconsistency, for

reasons discussed above, I decline to interpret 13(1) as protecting factual material from the

public domain. To do so would be contrary to the spirit of openness upon which the Act is

based. It would in my mind be illogical and contrary to Driedger’s aforesaid modern rule

of interpretation. At the same time, to avoid redundancy, I conclude that the information

referred to in s. 3(a)(ii) to (xii) must mean more than factual material (as already included

in 3(a)(i).

[40] I now turn to the issue at hand. While other subsections may have relevance, it is clear to

me that at least s.3(a)(ix) applies in this case. The program review is essentially “a

feasibility...study ...relating to a project of a public body”. The held information is an

integral part that study. It is therefore “background material” for the purposes of s. 13(2).

[41] At the same time it is important to remember that s. 13(2)(c) does not open the door to

unlimited disclosure as the Respondent may fear. It does not apply to all background
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information. It is restricted to “background information...the purpose of which is to

present...analysis to the Executive Council or [one] of its committees...”. It applies only to

documents that have been presented to Cabinet for its consideration. In other words it

2001 NSSC 6 (CanLII)

applies only to advice given to Cabinet. It does not apply to Cabinet’s actual deliberations.

Disposition

[42] Although I have only viewed a sampling, the disputed materials appear to be no more than

that envisaged by 13(2)(c); namely advice and/or recommendations presented to cabinet for

its consideration. Nothing about Cabinet’s actual deliberations would (or should ) therefore

be revealed .

[43] Therefore, according to s.3(a)(ix) and s.13(2)(c) the held information (only as it applies to

the 86 eliminated programs) is to be released and I so order. Subject to Mr. O’Connor’s

submission on waiver, all other subject information may be withheld.

WAIVER

[44] Alternatively, Mr. O’Connor submits that regardless of s. 13, the Respondent Government

waived its right to Cabinet confidentiality. During the hearing before me, it became evident

that the relevant “Cabinet” sub committees had membership outside of Cabinet. Each had
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one or more additional caucus member. Mr. O’Connor therefore asserts that because the

subject material was shared beyond Cabinet, any privilege pertaining to these documents has

been waived.

2001 NSSC 6 (CanLII)

[45] I disagree. This type of limited disclosure should not automatically vitiate cabinet

confidentiality. Instead I must consider the effect of this limited disclosure when balancing

the aforesaid competing aspects of good government. In essence the issue is grounded in

fairness. This was recently recognized by Wright J. of this Court in Nova Scotia (Attorney

General) v. Royal and Sun Alliance Insurance Company of Canada et al.,[2000] N.S.J. No.

404 (again the context of civil litigation). At paragraph 27 he noted:

[para28] As further argued on behalf of the Province, when it comes to solicitor-client

privilege, in order for waiver to be implied the court must be satisfied that the client's
conduct demonstrates an intention to waive privilege. I refer to the following passage
from the well-known text on Solicitor-Client Privilege In Canadian Law (Butterworths,
1993) by the authors Manes and Silver at page191:

1.03 Generally, waiver can be implied where the court finds

that an objective consideration of the client's conduct
demonstrates an intention to waive privilege. Fairness is the
touchstone of such an inquiry.

One of the best expressions on implied waiver of solicitor-client

privilege is that of McLachlin J. (as she then was) in S & K
Processors, [1983] B.C.J. No. 1499, (1983) where she said:

Waiver of privilege is ordinarily established where it

is shown that the possessor of the privilege (1) knows
of the existence of the privilege, and (2) voluntarily
evinces an intention to waive that privilege. However,
waiver may also occur in the absence of an intention
to waive, where fairness and consistency so require.
Thus waiver of privilege as to part of a
communication, will be held to be waiver as to the
entire communication. Similarly, where a litigant
relies on legal advice as an element of his claim or
defence, the privilege which would otherwise attach to
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that advice is lost: Hunter v. Rogers, [1982] 2 W.W.R.

189, 34 B.C.L.R. 206 (S.C.).

[para28] This passage was recently cited with approval by the Nova Scotia Court of
Appeal in Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. Ltd. et al., [2000] N.S.J.
No. 258, 2000 NSCA 96.

2001 NSSC 6 (CanLII)

[para29] What happened in the present case is that the Province, as I have already
found, voluntarily provided copious documents to the Auditor General (including those
documents over which solicitor-client privilege is now claimed) to facilitate his statutory
audit, the focus of which was on Departmental operations with respect to the ADR
Program. There was certainly no express waiver given when it did so, nor does an
objective consideration of its conduct demonstrate any intention to waive privilege.
Having inspected the subject documents, I find it inconceivable that there was any
intention on the part of the Province to waive solicitor-client privilege in releasing the
documents as it did. Fairness is said to be the touchstone and the touch of fairness here
defeats the argument of implied waiver of privilege over these documents.
[Emphasis added]

[46] See also Regina v. Chief Constable of the West Midlands Police, [1994] H.L.J. No. 35 at

paragraphs 52 and53.

[47] Furthermore in the context of solicitor-client privilege it has been held that disclosure within

Government does not constitute waiver. I refer to the decision of Rothstein J.in Stevens v.

The Prime Minister of Canada (The Privy Council), [1997] 2 F.C. 759 (F.C.C.T.D.) where

at paragraph 23 he states:

[para23] In general, with respect to solicitor-client privilege as between government

institutions, "[t]he release of privileged information by one institution to another would
not normally constitute a waiver as this action is internal to the government, the
ultimate beneficiary of the privilege" see: McNairn and Woodbury, Government
Information: Access and Privacy (Scarborough, Ont.: Carswell, 1992) at page 3-36.
 Page: 22

[48] Therefore, as stated in Carey, supra, the purpose of Cabinet confidentially is to promote

candid Cabinet deliberations and smooth government generally. Sharing this information

with fellow caucus members outside of Cabinet does not undermine these dual purposes.

2001 NSSC 6 (CanLII)

Thus I find no basis to transform this limited disclosure to public disclosure.

The Relevant Format

[49] An added issue involves the format in which the information ought to be released. The

information provided to date has been forwarded electronically in a portable document

format (PDF). This format is much less “user-friendly” than the “access” format in which

the database was originally created. Mr. Matt Hebb explains at paragraph 13 of his affidavit:

13. The difference, then, between a database file, such as Access, and Portable
Document Format is that the former allows users the continued ability to
organize, access and analyze information with ease and flexibility. A PDF
allows users to see information in a published state, just like a book, but it
greatly or completely (depending on security set by the creator of the
document) restricts access to the information in the document.

[50] Understandably, the Appellant prefers the more “user- friendly access” format. It makes no

difference to the Respondent because one format is as easy to relay as the other. Thus, it only

makes sense to provide all the relevant information in “access” format and I so order. By

doing so I am not saying that all FOIPOP Act applicants shall have their choice of formats.

This aspect of my ruling is specific to the facts of this case.

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Stay of Execution

[51] Immediate release of the subject documentation would effectively deny the Respondent any

2001 NSSC 6 (CanLII)

right of appeal to the Nova Scotia Court of Appeal. Therefore, pursuant to s. 42(5)(b), I

direct that it remain sealed for a period of thirty days after my Order is issued; pending any

further Order of this Court or the Nova Scotia Court of Appeal.

Costs

[52] I trust that the parties can agree on costs. Since there has been mixed success, my inclination

would be to have each party bear its own costs. However, in the event of disagreement I

invite written submissions by Ms. Poirier, on or before January 22nd, 2001 and in reply by

Mr. Steele, on or before January, 31st , 2001.

[53] If agreement is reached on costs, I invite Ms. Poirier to prepare the Order for presentation

to me (after both counsel have consented as to form).

Michael MacDonald
Associate Chief Justice