T-697-97
Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependant (Applicants)
v.
The Commissioner of the Royal Canadian Mounted Police (Respondent)
Indexed as: Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependantv. Canada (Commissioner of the Royal Canadian Mounted Police) (T.D.)
Trial Division, Reed J."Toronto, September 29 and November 4, 1997.
Administrative law — Judicial review — Certiorari — Decision of RCMP Commissioner denying admission to Witness Protection Program — Allegation of bias and that Commissioner more concerned with impact of decision on Ontario Court of Justice (General Division) action than on merits — Lawyer defending Ontario action also acting as counsel to Commissioner in making impugned decision — Allegation counsel wrote Commissioner's decision — Legal opinions provided to adjudicative tribunal not always privileged — Whether applicants thwarted by solicitor-client privilege rule from ascertaining counsel's role in Commissioner's decision — No longer unacceptable that reasons of quasi-judicial or administrative tribunal be written by other than decision maker — Commissioner's workload such that assistance required in writing reasons — Commissioner must retain control of decision-making process, avoid appearance of bias, lack of independence — Commissioner relying on case law working papers, staff opinions not relevant to impugned decision — Reliance of administrative tribunals on deliberative secrecy — Extent of counsel's involvement in writing of reasons, making recommendations, relevant to apprehension of bias allegation — Staff papers producible if relating to ground of claim — Applicants entitled to know extent of counsel's involvement — Applicants could have asked filing of documents —for Court's eyes only— — Commissioner ordered to review documents to ensure indeed privileged, produce any dealing with merits rather than being legal opinion.
RCMP — Applicants provided local police force with information leading to cocaine seizure — Local police requesting applicants' admission to RCMP Witness Protection Program — RCMP declined to pay associated costs as not involved in investigation — Applicants sued local police, Attorney General of Canada for damages, protection in O.C.J. — Whether O.C.J. having jurisdiction to review decisions of RCMP Commissioner — Applicants seeking judicial review in F.C.T.D. — Allegation Commissioner's decision tainted as lawyer defending RCMP in O.C.J. case advising Commissioner, writing decision denying access to Program — If Commissioner's workload excessive, may have assistance in writing reasons — Must retain control of decision-making process, not create appearance of bias — Commissioner ordered to review documents for which privilege claimed, produce any going to merits of decision, not being legal advice.
Practice — Discovery — Production of documents — Motion pursuant to Federal Court Rules, RR. 1612, 1614 to compel production of documents considered in reaching decision to refuse to admit applicants to RCMP Witness Protection Program — Counsel advising Commissioner also defending RCMP in related provincial court action — Application for judicial review of refusal alleging bias — Applicants alleging Commissioner more concerned with impact of decision on provincial court action than merits — Also alleging counsel writing decision — Documents relevant to grounds of review should be produced under R. 1612 — Extent of counsel's involvement in writing reasons, making recommendations thereon, relevant to allegation of bias — Applicants entitled to know extent of counsel's involvement in formation, writing of decision on merits.
Practice — Privilege — Motion pursuant to Federal Court Rules, RR. 1612, 1614 to compel production of legal opinion, correspondence considered in reaching decision to refuse to admit applicants to RCMP's Witness Protection Program — Counsel advising Commissioner also advising RCMP in related provincial court action — Application for judicial review of refusal alleging Commissioner more concerned with impact of decision on provincial court action than merits — Also alleging counsel writing decision — Applicants entitled to know extent of counsel's involvement in formation, writing of decision on merits — Not everything lawyer writes protected by privilege — Any document or part thereof dealing with merits of decision, not legal opinion, relevant to counsel's involvement in decision-making process, must be produced.
This was a motion pursuant to Federal Court Rules, Rules 1612 and 1614 to compel production of any legal opinion or correspondence provided to the Commissioner that was considered in the reaching of the decision to refuse to admit the applicants to the RCMP Witness Protection Program. The applicants had provided the local police force with information that led to a seizure of cocaine. The local police force requested that the applicants be admitted to the RCMP Witness Protection Program, but the RCMP refused to accept any responsibility for the applicants' protection since it had not been involved in the investigation leading to the disclosure. The applicants commenced an action in provincial court against the local police and the Attorney General of Canada for damages and injunctive relief to ensure that they would be provided protection. Request for admission to the program was subsequently made and the negative response " the decision under review " was given. The applicants alleged that disclosure will strengthen their claim that the Commissioner was biased when he made his decision, because the counsel who was advising him was also defending the RCMP in the provincial court action. The applicants alleged that the documents sought would disclose that the Commissioner focused on the impact that his decision would have on the pending provincial court action, rather than on the merits of the situation. It was also alleged that that same counsel had written the decision.
The Commissioner asserted that all documentation that was before him had been produced, except legal opinions prepared by counsel that were covered by solicitor-client privilege. The applicants argued that the use of the solicitor-client privilege rule was preventing them from ascertaining the scope of the role counsel had played in the Commissioner's decision.
Held, the motion should be allowed in part, "such . . . other relief" as the "Court deems just" being granted.
Legal opinions provided to an adjudicative tribunal may not in all instances be privileged. But the Commissioner is entitled to seek legal advice as to the scope of his jurisdiction when deciding whether to admit persons to the witness protection program, and to have such advice protected by solicitor-client privilege.
It is no longer necessarily the case that reasons for decision written by someone other than the decision maker indicate a delegation of decision-making authority. The Commissioner's workload is such that, as a matter of necessity he requires assistance in writing the reasons. The case law is clear that a decision maker in the Commissioner's position may use someone else to write reasons for his decision provided he retains control of the decision-making process and that such decision written by another "not . . . create an appearance of bias or lack of independence". The Commissioner relied on case law that has held that working papers and staff opinions are not relevant to an impugned decision, and noted that administrative tribunals can rely on deliberative secrecy.
Documents relevant to the grounds of review asserted by an applicant, in this case reasonable apprehension of bias, should be produced under Rule 1612. The extent of counsel's involvement in the writing of reasons on the merits and the making of recommendations thereon were relevant to the allegation of reasonable apprehension of bias. He was involved from the beginning in defending the provincial court action. He was reported as having told counsel for the applicants that he would not recommend acceptance of the applicants into the Witness Protection Program unless they dropped their court action. The writing of a decision maker's reasons for decision by another is limited by the requirement that it not affect the fairness of the proceedings. Staff papers are producible if they relate to a ground of the applicant's claim. The applicants were entitled to know the extent of counsel's involvement in the formation and writing of the decision on the merits. If he was acting as both legal advisor and delegated decision writer with respect to the merits, the applicants were entitled to know that such was the case. Not everything a lawyer writes is protected merely because he is a lawyer.
The respondent was not asked to file the documents in Court, on a "for the Court's eyes only" basis. But the motion did request "such . . . other relief" as the "Court deems just". Therefore the Commissioner was ordered to review the documents for which privilege was claimed to ensure that they were privileged. Any document or part thereof that dealt with the merits of the decision, and not with a legal opinion, and that was relevant to counsel's involvement in the decision-making process was required to be produced. Whether counsel's involvement in the merits of the decision resulted in a reasonable apprehension of bias can only be assessed after the extent of that involvement is known.
statutes and regulations judicially considered
Federal Court Rules, C.R.C., c. 663, RR. 1612 (as enacted by SOR/92-43, s. 19), 1613 (as enacted idem), 1614 (as enacted idem).
Witness Protection Program Act, S.C. 1996, c. 15, s. 5.
cases judicially considered
applied:
Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641; 94 D.L.R. (4th) 193; 11 Admin. L.R. (2d) 147; 76 C.C.C. (3d) 10; 57 O.A.C. 115 (C.A.); Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 2 F.C. 356; (1994), 73 F.T.R. 81 (T.D.).
considered:
Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432; (1984), 8 Admin. L.R. 177; 54 N.R. 303 (C.A.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (1996), 37 Admin. L.R. (2d) 241 (F.C.T.D.).
referred to:
Melanson v. Workers' Compensation Board (N.B.) (1994), 146 N.B.R. (2d) 294; 114 D.L.R. (4th) 75; 374 A.P.R. 294; 25 Admin. L.R. (2d) 219 (C.A.); Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455; (1995), 180 N.R. 152 (C.A.); Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169.
APPLICATION to compel production of any legal opinion or correspondence that was considered in reaching the decision to refuse to admit the applicants to the RCMP Witness Protection Program. Order to go requiring Commissioner to review documents in respect of which privilege is claimed and to produce any document, or part thereof, dealing with the merits rather than being a legal opinion.
counsel:
Marshall A. Swadron and S. Flam for applicants.
James W. Leising and Jordon Solway for respondent.
solicitors:
Swadron Associates, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Reed J.: Counsel for the applicants brings a motion pursuant to Federal Court Rules [C.R.C., c. 663], Rules 1612 [as enacted by SOR/92-43, s. 19] and 1614 [as enacted idem] seeking an order to compel "the respondent to produce any legal opinion or correspondence provided to the Commissioner" that was "considered in the reaching of the decision to be reviewed". The decision to be reviewed is one dated May 23, 1997, in which the Commissioner of the Royal Canadian Mounted Police (RCMP), through his delegate Assistant Commissioner Ryan, refused to admit the applicants to the RCMP Witness Protection Program.1 For the purposes of these reasons, I will refer to the Commissioner, although it was Assistant Commissioner Ryan who was involved.
The factual background to this application, as I understand it, follows. In March of 1996 the applicants, pursuant to agreements reached with the Waterloo Regional Police and perhaps also the Ontario Provincial Police, provided information that led to a seizure of cocaine, which was hidden in mops located in a Cambridge, Ontario, business premise. The Waterloo Regional Police subsequently wrote to the RCMP asking that the applicants be protected under the RCMP Witness Protection Program. The initial response from the RCMP was that the request deserved consideration. The RCMP wrote offering to assist the Waterloo Regional Police on a cost recovery basis. The Waterloo Regional Police did not pursue this offer but proposed other arrangements to the applicants, which were not acceptable to them. The Waterloo Regional Police rejected the proposition that the costs associated with the use of the Witness Protection Program should be borne by the Waterloo Regional Police. The RCMP rejected the claim that it had any responsibility for the protection of the applicants since it had not played a role in the investigation that led to the applicants disclosing the information in question, nor had it made any commitment to the applicants concerning protection. The RCMP subsequently suggested a cost sharing agreement; this the Waterloo Regional Police also rejected.
On February 10, 1997, the applicants commenced an action in the Ontario Court of Justice (General Division) against the Waterloo Regional Police Board, the Attorney General of Canada and two individuals, one of whom is a member of the OPP, the other a member of the Waterloo Regional Police Board. The Attorney General of Canada's participation is, of course, in relation to the actions of the RCMP and for ease of reference that organization will hereinafter be referred to as the defendant. The action claims damages in the amount of $4,500,000. It seeks an injunction to ensure that the plaintiffs are provided with protection, pursuant to assurances that had been given to them. The injunctive remedy in so far as it was sought against the RCMP was dismissed by the Ontario Court (General Division) on July 31, 1997. The damage claims against the RCMP were stayed, on the same date, pending disposition by the Federal Court of the application that by then had been filed in this Court by the applicants, to set aside the decision of the Commissioner refusing to admit them to the Program.
I turn then to the proceeding in the Federal Court. Counsel for the applicants became aware, by no later than March 24, 1997, that the RCMP was taking the position that the Ontario Court (General Division) did not have jurisdiction to review decisions made by the Commissioner of the RCMP pursuant to the Witness Protection Program Act. Counsel for the applicants then moved to commence an action in this Court. On April 21, 1997, Mr. Justice McKeown granted the applicants' motion that they be allowed to commence an application for judicial review under the pseudonyms set out in the style of cause. An order requiring the respondent to produce the record of the decision for which judicial review was being sought was refused, because as of that date there had been no decision by the Commissioner. Not only had there been no decision, there had been no request by the applicants to the Commissioner that they be given protection under the Witness Protection Program.
A request for admission to the Program was made on May 1, 1997. A response was given, as noted above, on May 23, 1997. It is that decision that is now under review; and it is with respect to that decision that the production of "any legal opinion or correspondence provided to the Commissioner" is sought. The Commissioner asserts that all documentation that was before him has been produced except legal opinions prepared by counsel that would be covered by solicitor-client privilege. I was not asked by counsel for the applicants to review the documents, for which privilege is claimed, to see if they fall within the category claimed.
Counsel for the applicants seeks disclosure of the documents because he thinks they will assist his challenge to the May 23, 1997 decision. He thinks they will strengthen his claim that the Commissioner was biased when he made his decision, biased because the counsel who advised him, Mr. Leising, was also defending the RCMP in the Ontario Court (General Division) action. He thinks that disclosure of the documents will show that Mr. Leising wrote much of the Commissioner's May 23, 1997 decision, that the Commissioner relied very heavily on counsel's advice in reaching that decision. He thinks the documents will disclose that the Commissioner focussed on the impact that a decision favourable to his clients would have on the action pending in the Ontario Court (General Division) rather than on the merits of the applicants' situation.
As noted, the assertion that the Commissioner's decision was biased or tainted, is based on the fact that Mr. Leising was counsel defending the RCMP in the Ontario Court (General Division) action while, at the same time, he was acting as counsel for the Commissioner when he was making his decision pursuant to section 5 of the Witness Protection Program Act. It is argued that acting in the two roles taints the section 5 decision, but without the production of the documents sought, the applicants are unable to ascertain the scope of Mr. Leising's involvement in the section 5 decision-making process.
Counsel for the applicants alleges that not only did Mr. Leising act as legal advisor to the Commissioner when the section 5 decision was being made but he wrote the Commissioner's decision or significant parts of it. Counsel for the applicants argues that Mr. Leising wrote the reasons for decision because (1) Mr. Leising told counsel for the applicants that the Commissioner had requested a legal opinion, which Mr. Leising was preparing; (2) the reasons speak in the first person when counsel for the applicant has had no contact with the Commissioner but only with Mr. Leising; (3) there is a statement in the reasons that:
. . . the applicants have chosen to engage in a public relations campaign exaggerating their situation and if anything, aggravating the potential for risk by publicly proclaiming themselves to be informants. All of this suggests an agenda quite independent of obtaining reasonable and appropriate protective services. This conduct suggests to me an immaturity and complete lack of judgment that leads me to conclude that [there] is no reasonable program of protective services that they would be able to adjust to.
The record contains copies of two articles from Macleans Magazine, alleging that the RCMP was not protecting its informants adequately. One of the articles was based on an interview, by a reporter, of the male applicant using his pseudonym. It carries a very large picture of counsel for the applicants over the caption "Toronto Lawyer Swadron: Police Forces `Squabbling Over Who Should Pay the Bill'". After this article appeared Mr. Leising wrote to Mr. Swadron, in a letter dated April 29, 1997:
I can't help but think that your efforts to date represent the worst possible way to go about obtaining protective services for your clients. Presuming that there is a legitimate need for some level of protective services, and assuming that your efforts really are about obtaining such services and not optimising your personal media exposure, may I respectfully suggest that you try another tact. I suggest specifically that you expend your efforts and the public's funds on negotiating a resolution to the dispute with the assistance of a professional mediator. My clients are prepared to engage in some form of alternate dispute resolution if you and the other parties are.
Counsel argues that because the Commissioner's reasons refer to a public relations campaign, and this reflects the sentiments expressed by Mr. Leising in his letter of April 29, 1997, Mr. Leising wrote the Commissioner's reasons or influenced him to characterize what had occurred as he did, and take that characterization into account in rendering his decision. The reference by the Commissioner to the publicity, which had been encouraged by the male applicant and by counsel, is not enough to lead to a conclusion that Mr. Leising played the role counsel suggests. The magazine articles were part of the record. The Commissioner had been encouraged by counsel for the applicants to take the media reports into account. Also, it defies common sense to think that the Commissioner would have no knowledge of these reports unless Mr. Leising had brought them to his attention, or that without Mr. Leising's encouragement he would not have drawn a conclusion that there was an immaturity and lack of judgment involved in persons who are seeking witness protection allowing themselves to be interviewed by the media.
With respect to reliance on the fact that Mr. Leising told counsel for the applicants that he had been asked for and was preparing a legal opinion, this does not demonstrate that Mr. Leising was the drafter of all of the Commissioner's reasons. Those reasons are divided into two different sections. The first states that the Commissioner is without jurisdiction to admit the applicants to the Program because they were not part of an RCMP investigation and there is no agreement in place covering them. The second is an assessment of their claim on the merits, which is stated to be given in case the Commissioner's legal position with respect to lack of jurisdiction is wrong. The Commissioner's decision on the merits contains considerable comment on the applicants' unsuitability for the program because of their lack of judgment and other personal characteristics.
The legal position that the Commissioner has taken, presumably on the advice of Mr. Leising, will be assessed by the Court when this application is heard on the merits. Whether Mr. Leising provided that advice or whether it was provided by someone else is irrelevant. It will be the Court that will eventually assess its correctness.
I accept the argument that legal opinions provided to an adjudicative tribunal may not in all instances be privileged.2 But I am not persuaded that legal opinions provided to the Commissioner with respect to the scope of his jurisdiction when deciding whether to admit persons to the witness protection program fall into that category. The Commissioner (as client) is surely entitled to seek legal advice on such a matter and to have the advice so given protected by solicitor-client privilege. Also, as noted above, the content of such an opinion is irrelevant since the Court will in any event decide that legal issue.
I turn, then, to counsel for the applicants' argument that his clients are being prevented by the use of the solicitor-client privilege rule from ascertaining the scope of the role that Mr. Leising played in the section 5 decision. Counsel asserts that Mr. Leising not only gave the Commissioner legal advice but also either wrote or played a crucial role in advising the Commissioner with respect to the decision on the merits of the applicants' request. As I understand the respondent's response, it is that whatever the scope of that role, it is irrelevant.
At one time it was thought that at the judicial level, at least, reasons for decision that were written by anyone other than the decision maker ran the risk of being treated as evidence that a delegation of decision-making authority had occurred. It is my perception that this is no longer necessarily taken to be the case. There is greater acceptance now of reasons being written by someone other that the decision maker. If this is acceptable at the judicial level, it is even more likely to be acceptable with a quasi-judicial or administrative decision maker.
In Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (C.A.), at page 672, it was held that a decision-making body composed of several members, i.e. a committee, was entitled to avail itself of counsel's assistance during the drafting process. I will set out below excerpts from the decision that are particularly pertinent. The part of the decision, as a whole, from which they are taken, is added as an appendix to these reasons. The particularly pertinent passages are:
The Committee's ultimate responsibility for the authorship of the reasons is not inconsistent with the Committee availing itself of counsel's assistance during the drafting process.
. . .
The debate must fix, not on the Committee's entitlement to assistance in the drafting of reasons, but on the acceptable limits of that assistance.
The line between permissible assistance and that which is forbidden must be drawn by regard to the effect of counsel's involvement in the drafting process, on the fairness of the proceedings and the integrity of the overall . . . process.
The analysis set out in the Khan decision was adopted in Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police), [1994] 2 F.C. 356 (T.D.), at page 381 ff. The analysis was applied to a decision by one person, the Commissioner of the RCMP. The use of others to draft his reasons was justified on the ground that: the Commissioner, as a decision maker, did not have to hear witnesses or decide questions of credibility after an in-person hearing; the Commissioner was acting as an appeal court; the Commissioner had many functions to perform, only one of which was the decision-making function in question; the individual who wrote the Commissioner's reasons was not involved in the proceedings that were before the Commissioner; the workload of the Commissioner is such that, as a matter of necessity, he required assistance in writing the reasons.
The jurisprudence is clear, then, that a decision maker in the position of the Commissioner may use someone else to write reasons for his decision providing he retains control of the decision-making process and providing that such decision written by another "not . . . create an appearance of bias or lack of independence".3
Part of counsel for the respondent's argument that the documents being sought by the applicants are not producible is based on the jurisprudence that has held that working papers and staff opinions are not relevant to an impugned decision. In Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432 (C.A.) it was held that staff papers prepared for consideration by the National Energy Board, in rendering a decision, did not form part of the record of the decision under review. It was held that such documents were irrelevant and need not be produced under the then subsection 1402(3) of Federal Court Rules. The headnote reads in part [at pages 433-434]:
However, where the decision of a tribunal can be shown to have been based on staff reports it may well be possible to make out a case for requiring their inclusion.
. . . there is nothing in the material before the Court showing that the papers sought to be produced relate to any of the applicant's proposed grounds of appeal.
The text of the decision reads, in part [at page 443]:
. . . I do not think the order so made should be regarded as authority for a general proposition that staff reports prepared for the assistance of members of a tribunal either in the course of a proceeding or in the judgment-making process are papers that must be included in the material on which the tribunal's decision is to be reviewed. As it appears to me, where the decision of a tribunal can be shown to have been based on staff reports to which the parties have not had access containing evidentiary material to which the parties have not had an opportunity to respond, it may well be possible to make out a case for requiring that they be included in the case for review. Further, in such a situation the fact that the reports were prepared and submitted on a confidential basis, in my view, would not afford them protection. But no such case has been made out here.
The applicant's memorandum indicates that the principal reason for seeking the inclusion of staff memoranda in the case is to attempt to establish the Board's reasons for decision. The analysis and opinion in staff memoranda are irrelevant to the ascertainment of the Board's reasons for decision because they cannot be assumed to have been adopted by it as its reasons. The Board's reasons for decision are those which it chooses to express or which can otherwise be clearly shown from its own words or actions to have been its reasons.
In Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) (1996), 37 Admin. L.R. (2d) 241 (F.C.T.D.) an order to produce documents was refused. It was held that the analysis and opinions set out in staff memoranda were irrelevant to the tribunal's reasons for decision since it could not be assumed that they had been adopted. In order for these to be relevant, the Court held it would have to be shown that they amounted to additional evidence. Counsel for the respondent also notes that administrative tribunals can rely on deliberative secrecy; see Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, at page 965.
At the same time, documents relevant to the grounds of review asserted by an applicant (in this case reasonable apprehension of bias) should be produced under Rule 1612:
A document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent.4
The extent of Mr. Leising's involvement in the writing of reasons on the merits, and the making of recommendations thereon, are relevant to counsel for the applicants' allegation of a reasonable apprehension of bias. Mr. Leising was involved from the beginning in defending the applicants' action in the Ontario Court. He is reported as having told counsel for the applicants, on March 1997, that he would not recommend acceptance of the applicants into the Program unless they dropped their Court action. The jurisprudence cited above indicates that the writing of a decision maker's reasons for decision by another is limited by the requirement that it not affect the fairness of the proceedings. The jurisprudence also indicates that staff papers are producible if they relate to a ground of the applicants' claim. The applicants are entitled to know the extent of Mr. Leising's involvement in the formation and writing of the decision on the merits. If he was acting in two capacities, that is, as both legal advisor and delegated decision writer with respect to the merits, the applicants are entitled to know. Not everything a lawyer writes is protected merely because he is a lawyer.
Rules 1612 and 1613 [as enacted by SOR/92-43, s. 19] do not set out any procedure for dealing with applications for the production of documents within the possession of a tribunal which that tribunal declines to produce. Rule 1612 specifies that the request be a "written request" and subsection 1613(2) states that an objection should be made "in writing". Subsection 1613(3) states that a judge may give directions with respect to the procedure for making submissions with respect to the objection. As noted earlier, the applicants did not seek any directions pursuant to this subsection. The respondent was not asked to file the documents in Court, on a "for the Court's eyes only" basis, as might have been done. When a claim for solicitor-client privilege is asserted in the context of an action and it is objected to by the opposing party, it is normal for the Court to review the documents to assess the claim.
The Commissioner has asserted that the documents that have not been produced are all covered by solicitor-client privilege. The applicants' motion, as presented to the Court, seems to accept that characterization but asserts that the documents, nevertheless, should be produced. Yet counsel's arguments on the hearing of the motion raised the question of whether all the documents were in fact covered by solicitor-client privilege. It is this discrepancy between the text of the motion and the content of the arguments that has created difficulty in not rendering a decision more speedily. In any event, the motion does request "such . . . other relief" as the "Court deems just". I have decided that in the circumstances, an order should go requiring the Commissioner to review the documents for which privilege has been claimed, again, with the assistance of counsel, to ensure that they all fall within the claimed category. Any document or part thereof that deals with the merits of the decision, and not with a legal opinion, and that is relevant to Mr. Leising's involvement in the decision-making process must be produced. If counsel was acting in two capacities, that is, as both legal adviser and drafter or primary recommender of the decision on the merits, the applicants are entitled to know.
I emphasize that these reasons do not constitute a finding that Mr. Leising's involvement, if any, in the merits of the decision necessarily results in a tainted decision (a reasonable apprehension of bias). This is an assessment that can only be made once the extent of that involvement is known. The present decision only requires the production of documents to enable an open and fair consideration of the position that counsel for the applicants is attempting to put before the Court.
1 Witness Protection Program Act, S.C. 1996, c. 15.
2 Melanson v. Workers' Compensation Board (N.B.) (1994), 146 N.B.R. (2d) 294 (C.A.).
3 Khan, at p. 674.
4 ;Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.), at p. 460.
APPENDIX
[Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (C.A.), at pages 672-673]
The Committee's ultimate responsibility for the authorship of the reasons is not inconsistent with the Committee availing itself of counsel's assistance during the drafting process. It is well established that a tribunal such as the Committee may look to outside sources for assistance in the preparation of its reasons: Spring v. Law Society of Upper Canada (1988), 64 O.R. (2d) 719, 50 D.L.R. (4th) 523 (Div. Ct.); Macaulay, Practice and Procedure Before Administrative Tribunals (1988), at pp. 22-10 to 22-10.21. That assistance should be discouraged or deprecated. In IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, 38 O.A.C. 321, at p. 327 S.C.R., p. 347 O.A.C., Gonthier J., for the majority, observed that tribunals must marry their use of "outside" assistance with procedural fairness.
The rules of natural justice should not discourage administrative bodies from taking advantage of the accumulated experience of its members. On the contrary, the rules of natural justice should in their application reconcile the characteristics and exigencies of decision making by specialized tribunals with the procedural rights of the parties.
That same reconciliation must be achieved during the drafting of reasons. The ultimate aim of the drafting process is a set of reasons which accurately and fully reflects the thought processes of the Committee. To the extent that consultation with counsel promotes that aim, it is to be encouraged. The debate must fix, not on the Committee's entitlement to assistance in the drafting of reasons, but on the acceptable limits of that assistance.
The line between permissible assistance and that which is forbidden must be drawn by regard to the effect of counsel's involvement in the drafting process, on the fairness of the proceedings and the integrity of the overall discipline process. Without attempting an exhaustive description of these concepts, fairness includes considerations of bias, real or apprehended, independence, and each party's right to know the case made against them and to present their own case. Integrity concerns encompass those fairness concerns, but include the broader need to ensure that the body charged with the responsibility of making the particular decision in fact makes that decision after a proper consideration of the merits. If the reasons presented for the decision are not those of the decision-maker, or do not appear to be so, it raises real concerns about the validity of the decision and the genuineness of the entire inquiry.
There is no single formula or procedure referrable to the drafting process that can be uniformly applied across the very broad spectrum of decision-making, when determining whether the involvement of the non-decision-maker in the drafting process compromises the fairness or the proceedings or the integrity of the process. The nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal's workload, and other factors will impact on the assessment of the propriety of procedures used in the preparation of reasons. Certainly, the judicial paradigm of reason writing cannot be imposed on all boards and tribunals: IWA v. Consolidated-Bathurst Packaging Ltd., supra, at pp. 323-24 S.C.R., pp. 342-43 O.A.C.
It must also be recognized that the volume and complexity of modern decision-making all but necessitates resort to "outside" sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any "outside" influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic but also destructive of effective reasons-writing.
In deciding whether the involvement of counsel in the drafting of the reasons operated unfairly against Dr. Khan or appeared to do so, I take the words of Gonthier, J., in Tremblay v. Quebec (Commission des affaires sociales), a decision of the Supreme Court of Canada released April 16, 1992 (now reported [1992] 1 S.C.R. 952, 90 D.L.R (4th) 609), at pp. 18-19 (of reasons; p. 971 S.C.R., p. 623 D.L.R.), as an appropriate starting place:
A consultation process by plenary meeting designed to promote adjudicative coherence may thus prove acceptable and even desirable for a body like the Commission, provided this process does not involve an interference with the freedom of the decision makers to decide according to their consciences and opinions. The process must also, even if it does not interfere with the actual freedom of the decision makers, not be designed so as to create an appearance of bias or lack of independence. (Emphasis added.)