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Info Source Bulletin Number 27
The Blood Band v. Her Majesty the Queen in Right of
Canada as represented by the Minister of Indian Affairs and Northern Development
Indexed as: Blood Band v. Canada
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File No.: |
T-1140-01 |
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References: |
2003 FC 1397; [2003] F.C.J. No. 1794 (QL) |
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Date of decision: |
November 28, 2003 |
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Before: |
Lemieux J. |
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Sections of ATIA/PA: |
Ss. 20(1)(b), (c), (d), 23, and 44 |
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Other statute: |
S. 18.1 Federal Court Act |
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Abstract
- Settlement negotiations privilege protected by para. 20(1)(d) ATIA
but not by s. 23 ATIA - To assert the settlement negotiations privilege under para. 20(1)(d) ATIA, applicant must bring evidence that the disclosure of the requested records could reasonably be expected to interfere with settlement negotiations
Issue
Do settlement negotiations fall within the purview of para. 20(1)(d) ATIA?
Facts
The Blood Band ("Band") objected to a decision of the Department of Indian Affairs and Northern Development (DIAND) Access Coordinator to sever and release parts of documents to which a requestor sought access from DIAND under the rubric "Land Claim of the Blood Indian Band." The Access Coordinator had determined that parts of the requested documents qualified for exemption under certain paragraphs of s. 20 of the ATIA. These documents included: (1) a 1994 historical report by a consultant to the Band; (2) a 1996 land claim submission to DIAND prepared by solicitors retained by the Band; and (3) a 1998 confirmation report prepared by a DIAND official assessing and summarizing the position of the parties. The Access Coordinator gave the Band a s. 27 ATIA notice stating the Department's intention to release the documents in severed form.
The Band objected to the release of the first two documents, saying that they were prepared in contemplation of litigation by the Band and were placed in DIAND's hands in without prejudice settlement negotiations of its legal action which included negotiations related to the acceptance of the Band's claim for negotiation as a specific claim. The Band argued that their release would interfere with settlement efforts, as well as with the specific claims eligibility negotiations between the Band and the federal government. The Band objected to the release of the third document on the grounds that it was prepared in contemplation of or was relevant to ongoing litigation between the parties and its disclosure might well interfere with the Band's prosecution of its action against Canada, as well as any future settlement negotiations.
The Access Coordinator argued in response that portions of each of the documents consisted of historical or factual data whose disclosure would not prejudice the Band's position. This was communicated to the Band by letter on June 16, 2001. The Band then initiated an action under s. 18.1 of the Federal Court Act, a procedure to which the federal Crown objected.
In oral argument, counsel for the Band argued that documents provided to the government in the context of settlement negotiations are privileged and are not covered by the Act—they are not within the control of a government institution and this is why he argued that his s. 18 Federal Court Act proceeding was well‑founded. Counsel for the Band argued in the alternative that if the ATIA applied then paras. 20(1)(b), (c), and (d) provided appropriate exemptions. Counsel for the Band argued there was a crossover between these sections and s. 23 of the Act which specifically deals with solicitor-client privilege.
Decision
The application was allowed. The documents are protected from disclosure in their entirety on the basis of para. 20(1)(d).
Reasons
Settlement negotiations privilege attaches to documents created or exchanged during negotiations carried on for the purpose of settling an action or avoiding litigation. Settlement negotiations are within the purview of para. 20(1)(d) ATIA and are not covered by the solicitor-client exemption stated in s. 23 ATIA. Consequently, the Court was able to avoid deciding whether a third party could raise an exemption outside s. 20 and concluded that the matter must be heard under s. 44 ATIA and not under s. 18.1 of the Federal Court Act.
In the context of the ATIA, unlike the situation which prevails in civil litigation, it is insufficient simply to assert the privilege of settlement negotiations to fit within para. 20(1)(d). Parliament framed the third-party exemptions in paras. 20(1)(c) and (d) in terms of what "could reasonably be expected to" result in material financial loss or to prejudice the competitive position or to interfere with contractual or other negotiations of a third party. Thus, the applicant must bring evidence that the disclosure of the requested records could reasonably be expected to interfere with settlement negotiations.
On reviewing the three documents in question, the Court concluded that the entire documents qualified for exemption under para. 20(1)(d) and that severance was inappropriate. The Court found first that the documents had arisen in the context of settlement negotiations. Second, while some of the events referred to in the documentation necessarily were in the public domain, what the Access Coordinator had coined as historical facts were in reality the very evidence which the Band asserted is needed to prove its Federal Court action and could not but prejudice the Band vis-à-vis a third party.
The Court rejected arguments that the settlement negotiations were off and therefore there could not be any interference with them within the meaning of para. 20(1)(d). First, what DIAND had decided is that it would not recognize the Band's claim as being eligible for negotiation within the specific claims process. That is the very issue that is being reviewed by the Indian Land Claims Commission. Second, the Board's action in the Federal Court was still alive and, if it were to go forward after discovery were to take place, settlement discussions would take place as mandated by Rule 257 of the Federal Court Rules, 1998.
Finally, disclosure of these documents, in this context, would result in both the Band and DIAND losing control of the prevailing circumstances (the action and settlement efforts) by opening up the process to outside intervention, a process which heretofore has been carefully managed by the Band and DIAND. Such a consequence, in the Court's view, could not but interfere with the realities of settlement negotiations of an action.
