IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, |
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2018 BCSC 1390 |
Date: 20180816
Docket: S1711757
Registry: Vancouver
Between:
Attorney General of British Columbia
Appellant
And
Provincial Court Judges’ Association of British Columbia
Respondent
Before: The Honourable Chief Justice Hinkson
On appeal from: An order of the Supreme Court of British Columbia, dated July 16, 2018 (Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), 2018 BCSC 1193, Docket # S1711757).
Reasons for Judgment
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Counsel for the Appellant: |
Andrew D. Gay Q.C. Clayton R.J. Gallant |
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Counsel for the Respondent: |
Alison M. Latimer |
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Place and Date of Hearing: |
Vancouver, B.C. August 13, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. August 16, 2018 |
[1] On March 2, 2018, the Provincial Court Judges’ Association of British Columbia (“Association”) asked the appellant to produce a copy of what it described as “the Cabinet submission relied on in formulating the government’s response” to the 2016 Judicial Compensation Commission (“JCC”) recommendations. The Attorney General of British Columbia (“Attorney”) has conceded through his counsel that such a submission was signed by him and provided to the Cabinet prior to his motion which led to the British Columbia Legislative Assembly’s (“Legislature”) impugned resolution.
[2] When the document was not produced to the respondent, application was made to the Court for its production.
[3] The application was heard by a Master on June 28, 2018, and in written reasons for judgment dated July 16, 2018 and indexed at 2018 BCSC 1193, the Master allowed the application and ordered the production of the Cabinet submission to the Association.
[4] The Attorney appeals the order of the Master.
[5] The JCC is an independent tribunal formed in British Columbia every three years with a mandate under the Judicial Compensation Act, S.B.C. 2003, c. 59 to report to the Attorney and the Chief Judge of the Provincial Court on all matters respecting the remuneration, allowances and benefits of the judges of the Provincial Court, and to make recommendations with respect to those matters: s. 5(1). The Legislature is not bound by a report of a JCC: s. 6(2).
[6] In 2010, a JCC reported to the Attorney and the Chief Judge. The JCC’s report was rejected in part by the Legislature, and that rejection was the subject of a Judicial Review by Mr. Justice Macaulay. Before he heard the petition, Macaulay J. heard an application by the Association for disclosure of the Cabinet summary prepared by Neil Reimer, a senior policy and legislation analyst with the Ministry of the Attorney General for the then Attorney. His reasons for judgment on this application are indexed as Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General), 2012 BCSC 244.
[7] The Association’s petition with respect to the Legislature’s response to the 2010 JCC recommendations was then heard by Macaulay J. who allowed the petition in reasons for judgment indexed at 2012 BCSC 1022.
[8] After the reconsideration of the 2010 report, the Legislature again rejected the report, in part, and the Association sought a Judicial Review of that rejection. This second review was undertaken by Mr. Justice Savage, whose reasons for judgment are indexed as Provincial Court Judges’ Assn. of British Columbia v. British Columbia (Attorney General), 2014 BCSC 336.
[9] In 2013, another JCC reported to the Attorney and the Chief Judge of the Provincial Court, and the Legislature again rejected the recommendations in the report in part. That rejection resulted in another Judicial Review application by the Association which was undertaken by Mr. Justice Grauer, whose reasons for judgment are indexed as Provincial Court Judges’ Assn. of British Columbia v. British Columbia (Attorney General), 2016 BCSC 1420.
[10] In September 2017, a JCC delivered the 2016 JCC report to the Attorney and the Chief Judge. As indicated above, the Attorney moved that the Legislature accept eight and reject two of the ten recommendations of the 2016 JCC. Appended to his motion was a copy of the Government's Proposed Response to the Report of the 2016 Judicial Compensation Commission.
[11] On October 25, 2017, the Attorney moved that the Legislature accept eight and reject two of the ten recommendations of the 2016 JCC report for the compensation of Judges of the Provincial Court of British Columbia. The motion was passed by a resolution of the Legislature.
[12] Prior to the vote of the Legislature on the 2016 JCC report, both the Attorney and the opposition justice critic spoke to the motion, explaining their support for it. The motion was supported by the opposition and was passed.
[13] On December 20, 2017, the respondent Association filed a petition asking the Court to set aside the Legislature’s resolution.
[14] In its petition, the Association asserts that the Legislature’s response failed to comply with three constitutionally mandated criteria which it described as follows:
The constitutional principle of judicial independence dictates that the Government and the Legislative Assembly must not reject or vary the recommendations of the JCC unless:
a. the Government articulates a legitimate reason for departing from the Commission's recommendations;
b. the Government's reasons rely upon a reasonable factual foundation; and
c. viewed globally, the Commission process has been respected and the purposes of the Commission - preserving judicial independence and depoliticizing the setting of judicial remuneration - have been achieved.
[15] The Attorney contends that the Master erred by misinterpreting the decision of the Supreme Court of Canada in Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44 ("Bodner"), and says that because the impugned decision is that of the Legislature, whose members were not shown a copy of the Cabinet submission, the submission has no relevance in this proceeding.
[16] Alternatively, the Attorney argues that the Master erred by failing to protect the Cabinet submission from disclosure on public interest immunity grounds.
[17] The Attorney contends that the correct standard of review from the decision of the Master on the application of Bodner is that of correctness, but concedes that if the Master did not err in that application, he must show that she was clearly wrong with respect to the issue of public interest immunity.
[18] The Association did not disagree with the standard of review articulated by the Attorney which I accept, as it has support in the decision of Mr. Justice Williams in Joubarne v. Sandes, 2009 BCSC 1413 where he held at paras. 14 - 16:
14 Nevertheless, even though I will treat the decision as interlocutory in character, this Court is not necessarily obliged to defer to the master's conclusion. If the decision is one of straightforward discretion, then, certainly, substantial deference is required. However, if the decision of the master involves a question of law, the standard of review must be correctness even though the matter involves an interlocutory issue such as the production of documents.
15 I find authority for that in the decision of Fraser J. in Northland Properties Ltd. v. Equitable Trust Co., 71 B.C.L.R. (2d) 124 (S.C.). Referring to the decision of Macdonald J. in Abermin, he said this:
The authorities reviewed by Macdonald J. deal with the appellate role in reviewing a discretion exercised by a Master. There is a different procedural dynamic in a judgment involving the exercise of discretion than there is in a decision on a point of law, such as the one appealed from here. A decision involving an exercise of discretion always involves consideration of the facts and rarely has implications for the general law. The "clearly wrong" standard recognizes this and is based on practical considerations having to do with the proper allocation of court time. A decision on a point of law, by contrast, has implications for other cases and other litigants. To adopt the "clearly wrong" standard on an appeal from a decision on a point of law would mean that an incorrect (but not clearly wrong) interpretation by a Master of a point of law would stand and presumably be binding on other Masters but would remain vulnerable to a different interpretation by a judge, in a later case. Why, the defendants ask, should the correct interpretation await a later case? I find no answer to this question.
The policy concerns which call for limited judicial review of the decisions of Masters do not apply to decisions of pure law. I conclude that a judge of this court sitting in appeal on a point of law from a Master has a conventional appeal jurisdiction, in which the legal issue may be argued and decided on the merits.
16 In the present case, the master made his decision based upon an interpretation of the law as set out in the decision of the Supreme Court of Canada in Juman. In my view, it follows that this Court, sitting on appeal, should exercise a conventional appellate jurisdiction in which the legal issues may be considered and decided on their merits.
[19] Judicial remuneration was considered by the Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (“Reference”), where the Court held that independent Commissions were required to improve the process designed to ensure judicial independence but that the Commissions' recommendations need not be binding.
[20] When the issue of judicial remuneration was reconsidered by the Supreme Court of Canada in Bodner, the Court concluded that while the Commissions were intended to remove the amount of judges' remuneration from the political sphere and to avoid confrontation between governments and the judiciary, the Reference had not provided the anticipated solution.
[21] At para. 19 in Bodner, the Court discussed the term “meaningful effect” which had been referred to in the Reference:
What is a "meaningful effect"? Some of the appellants submit that "meaningful effect" means a binding effect on the government. A number of Attorneys General, by contrast, submit that "meaningful effect" requires a public and open process of recommendation and response. They urge that governments be permitted to depart from the report for a rational reason, but not to manipulate the judiciary. The essence of this appeal depends on whether "meaningful effect" means a binding effect or refers to an open process. For the reasons that follow, we conclude that it is the latter.
[22] At paras. 31 – 33 and 38, the Court articulated the three stage test to be applied to determine the rationality of government response to recommendation of independent Commissions:
31 In the Reference, at para. 183, a two-stage analysis for determining the rationality of the government's response is set out. We are now adding a third stage which requires the reviewing judge to view the matter globally and consider whether the overall purpose of the commission process has been met. The analysis should be as follows:
(1) Has the government articulated a legitimate reason for departing from the commission's recommendations?
(2) Do the government's reasons rely upon a reasonable factual foundation? and
(3) Viewed globally, has the commission process been respected and have the purposes of the commission -- preserving judicial independence and depoliticizing the setting of judicial remuneration -- been achieved?
32 The first stage of the process described in the Reference is a screening mechanism. It requires the government to provide a "legitimate" reason for any departure from the commission's recommendation. What constitutes a "legitimate" reason is discussed above (paras. 23-27).
33 The second stage of the review consists of an inquiry into the reasonableness and sufficiency of the factual foundation relied upon by the government in rejecting or varying the commission's recommendations. The Reference states that this inquiry is to be conducted in a manner similar to the Court's assessment of the "economic emergency" in Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373 ("Anti-Inflation Reference").
…
38 At the third stage, the court must consider the response from a global perspective. Beyond the specific issues, it must weigh the whole of the process and the response in order to determine whether they demonstrate that the government has engaged in a meaningful way with the process of the commission and has given a rational answer to its recommendations. Although it may find fault with certain aspects of the process followed by the government or with some particular responses or lack of answer, the court must weigh and assess the government's participation in the process and its response in order to determine whether the response, viewed in its entirety, is impermissibly flawed even after the proper degree of deference is shown to the government's opinion on the issues. The focus shifts to the totality of the process and of the response.
[Emphasis added]
[23] In 2012 BCSC 244 at para. 8, Macaulay J. referred to the Association’s petition then before him which alleged in part that:
9. The Government's rejection of the recommended salary increase for judges was also based, in part, on the cost consequences to the Government of a 12-year collective agreement with the Crown Counsel Association which provides for annual salary increases based on what judges obtain through the JCC process plus 1.27%, which consideration was irrelevant and inappropriate given that it formed no part of the JCC proceedings or Government's Response to the JCC Report.
...
14. The Government's change to the recommendation by the JCC that long-term disability be extended to age 75, so as to commence April 1, 2013 was based on an absolute net-zero policy, without regard to the actual cost, benefit, fairness or reasonableness of the recommendation.
...
19. The Government's change to the recommendation by the JCC that judges be enrolled in the flexible benefits plan, so as to commence April 1, 2013, is based on an absolute net-zero policy, without regard to the actual cost, benefit, fairness or reasonableness of the recommendation.
[24] The Attorney’s counsel on the application before me accepted as accurate, the observation of Macaulay J. at para. 12 in 2012 BCSC 244, that a Judicial Review of the Legislature’s response to a JCC report:
… is not a typical administrative law review, although it is carried out under the Judicial Review Procedure Act, R.S.B.C. 996, c. 241. Many administrative law reviews are brought forward at the behest of a citizen who has a complaint about the exercise of a statutory decision-making power. This application is complicated because it, at least potentially, engages the political, constitutional and legal aspects of the relationships between the executive, legislative and judicial branches of government as they relate to determining judicial remuneration.
[25] Macaulay J. noted that the Attorney had filed an affidavit referring to a Cabinet submission in support of its position that the Bodner criteria had been met. He found that the Cabinet submission was relevant to the issues raised in the petition.
[26] The Attorney’s position is that relevance must be determined by reference to the pleadings. There is support for this view in the decision of Chief Justice Finch, for the Court, in the decision in the appeal from the decision of Macaulay J., indexed at 2012 BCCA 157, where he stated at para. 12:
In my view, it is not entirely correct to say, as the Attorney General does, that relevance in this context is to be defined by the statutory scheme. Although the statutory scheme sets the general framework, relevance for the purposes of this judicial review is to be determined by the issues that arise from the petition, and from the Attorney General's response to the petition. The Attorney General supports its response, in part, by the evidence contained in Mr. Reimer's affidavit.
[27] The Attorney contends that the Association’s present petition simply asserts that the Legislature failed to apply the principles set out by the Supreme Court of Canada without explaining what the failures were, and fails to offer any basis upon which the Cabinet submission would or could be relevant.
[28] While that is so, I do not accept that the statement by Finch C.J.B.C. in 2012 BCCA 157 can be viewed as a rejection of the importance of the statutory scheme in favour of the pleadings in determining the relevance of the Cabinet submission. Indeed the importance of the scheme in the analysis was highlighted at para. 38 in Bodner, set out above.
[29] In 2014 BCSC 336, Savage J., as he then was, noted that the parties before him did not agree on what amounted to relevant evidence. At paras. 26 – 27 and 29 he found that:
26 The respondent argues that Macaulay J.'s reasoning is flawed because he did not "grapple with the doctrine of deliberative secrecy and the basic tenet that it is the decision, not the deliberations, that is reviewable": see, for example, Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, which followed Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952. The respondent thus submits that the 2013 Response should be assessed on a stand-alone basis as the material forming part of the deliberations may not have led to the final reasons or determined the rationale behind them.
27 In my opinion, Justice Macaulay was fully aware of this issue. He specifically noted that the 2011 Cabinet Submission was only "background information".
…
29 In my view the importance of an open and transparent process outweighs the interest in maintaining confidentiality in this case. This is particularly so because this is the second judicial review of the LA's response to the 2010 JCC Report. As in the First Judicial Review and the decisions in Leeds and Carey, there is no affidavit before me asserting that any particular harm would flow from disclosure of the 2013 Cabinet Submissions. Having reviewed them, I find the 2013 Cabinet Submissions to be relevant, with the proviso noted by Macaulay J. that they are what they are: background information for consideration by the Cabinet in formulating the 2013 Response.
[30] The Master addressed the allegations in the respondent’s petition at paras. 18 – 20 of her reasons:
18 The Attorney General distinguishes the decision of Macaulay J. in the 2012 petition proceeding on the basis that the petition before me and the evidence of Mr. Reimer in support make no reference to the Cabinet submission.
19 The petition, however, presents the same position that was before Macaulay J. in the 2012 petition proceeding -- that is, that the government, inter alia, did not rely upon a reasonable factual background in its response and hence the decision by the Legislative Assembly was flawed.
20 That directly engages the "global perspective" referenced in the cited passage from Bodner, set out above, and entitles the PCJA to investigate the factual underpinnings of the decisions made.
[31] At para. 9 of her reasons for judgment, the Master made what I consider to be an important finding that:
It is not disputed that the government response is routinely informed by a detailed submission to Cabinet, nor was there evidence that such a submission was not done in this instance. However, neither the petition, the response to petition, nor any of the affidavits filed in support of either, make any mention of a Cabinet submission.
[32] Her finding in this regard is consistent with the important finding of Macaulay J. at paras. 13 – 16 in 2012 BCSC 1022 where he wrote:
13 The current statutory scheme may be traced back in its essential form to at least the enactment of s. 13 of the Provincial Court Act, R.S.B.C. 1996, c. 379. This is significant because the model predates the decision in PEI Reference. I will discuss the impact of PEI Reference and other more recent Supreme Court of Canada authority later in my reasons.
14 In fact, the Cabinet plays, and did play in this case, an important role in the process. After receiving a submission from the Attorney General, Cabinet considered and formulated the government response to the final report of the 2010 JCC.
15 This resulted in the Government Response to the Report of the 2010 JCC dated May 2011.
16 The government response opens, as follows:
This document supplements the corresponding motion by presenting the reasons of the government of British Columbia ("government") for the rejection of, and substitution of, recommendations contained in the Final Report of the 2010 British Columbia Judges Compensation Commission ("the Commission Report") and is prepared pursuant to the requirements of section 6(2) of the British Columbia Judicial Compensation Act (the "Act").
As I have already pointed out, s. 6(2) does not require a response from Cabinet on behalf of the government, although nothing in the JCA precludes Cabinet from formulating and advising the LA of the government's response to assist the latter in reaching a statutory decision. It is not open, however, to Cabinet, in doing so, to then shield its own participation in the process from scrutiny upon judicial review.
[33] At paras. 50 – 52, Macaulay J. elaborated:
50 In discussing the law as it applies to the obligation of government to respond to the report of the JCC, I am alive to the different roles in the process that may be assigned to the executive, or Cabinet, and the LA by the legislation in the particular jurisdiction. I recognize that, in this province, the LA is ultimately responsible for determining the salaries and benefits of PCJs.
51 However, it is Cabinet that developed the government response to the report of the JCC. The Attorney General then placed that response before the LA, along with the report. The LA accepted and thereby, in my view, clearly adopted the response as its basis for departing from the recommendations of the JCC.
52 As a result, the three-part Bodner test must focus on the government response to the JCC report that Cabinet developed and the LA ultimately adopted. The requisite good faith and commitment on the part of both the Cabinet and the LA necessarily applies to the whole of the process. Accordingly, it is relevant to consider the evidence respecting what took place before Cabinet.
[34] I find that the Master’s conclusions at paras. 18 – 20 set out above were informed by her finding at para. 9, and that she recognized that whilst the petition in this case made no mention of the Cabinet submission, that submission was nonetheless a relevant factor to be considered in weighing the whole or totality of the process engaged in by Government that led to the motion placed before the Legislature by the Attorney, and the response to the recommendations of the JCC.
[35] In the result, I reject the submission that the Master erred in her application of the principles set out in Bodner.
[36] This principle was discussed by the Supreme Court of Canada in Carey v. Ontario, [1986] 2 S.C.R. 637, where, at 654, Mr. Justice La Forest, for the Court, wrote that:
In making a claim of public interest immunity, the Minister (or official) should be as helpful as possible in identifying the interest sought to be protected. Examples of how this should be done appear in Burmah Oil Co. v. Bank of England, [1979] 3 All E.R. 700 (H.L.), and Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), where the Minister described with as much detail as the nature of the subject matter would allow the precise policy matters sought to be protected from disclosure.
[Emphasis added]
[37] At 657 he noted that:
46 I am prepared to attach some weight to the candour argument but it is very easy to exaggerate its importance. Basically, we all know that some business is better conducted in private, but generally I doubt if the candidness of confidential communications would be measurably affected by the off-chance that some communication might be required to be produced for the purposes of litigation. Certainly the notion has received heavy battering in the courts.
47 The House of Lords had occasion to deal with the candour argument in Conway v. Rimmer, albeit at a lower level of government. Lord Reid dismissed it so far as it concerned routine documents like the probation and other reports in question in that case. He failed to see how such an argument could apply to such communications within a government department when similar communications within public corporations would not be so protected. Lord Morris of Borth-Y-Gest found the proposition that candour would be affected by the knowledge that by some remote chance a document might be the subject of possible enforced production one of "doubtful validity" (p. 957). To Lord Hodson, it seemed strange that civil servants alone are supposed to be unable to be candid without the protection denied other people (p. 976). Lord Pearce indicated that there were many circumstances where the possibility of disclosure would make the writer more candid (p. 987). And Lord Upjohn found it difficult to justify non-disclosure of class documents simply on the basis of the candour argument when equally important matters of confidence in relation to security and personnel matters in other walks of life were not similarly protected (p. 995).
[38] At 671 – 672, he concluded that:
In the present case, however, we are dealing with a claim based solely on the fact that the documents concerned are of a class whose revelation might interfere with the proper functioning of the public service. It is difficult to see how a claim could be based on the policy or contents of the documents. We are merely dealing with a transaction concerning a tourist lodge in northern Ontario. The development of a tourist policy undoubtedly is of some importance, but it is hardly world-shaking. Apart from this, are we really dealing with the formulation of policy on a broad basis, or are we simply concerned with a transaction made in the implementation of that policy? Such a distinction was accepted by a majority of the House of Lords in Burmah Oil in relation to far more sensitive policy issues, i.e., major financial and economic policies of the nation. Policy and implementation may well be intertwined but a court is empowered to reveal only so much of the relevant documents as it feels it is necessary or expedient to do following an inspection.
[39] In her reasons at para. 22, the Master made reference to paras. 21 - 24 of 2012 BCSC 244, where at para. 21 Macaulay J. referred to the decision of the Supreme Court of Canada in Babcock v. Canada (Attorney General), 2002 SCC 57, and the alter decision of Madam Justice Smith in Babcock v. Canada (Attorney General), 2004 BCSC 1311. In 2002 SCC 57, the Court returned to the issue of disclosure of Cabinet documents. At paras. 15 and 18 - 19, Chief Justice McLachlin, for the majority, wrote:
15 Cabinet confidentiality is essential to good government. The right to pursue justice in the courts is also of primary importance in our society, as is the rule of law, accountability of the executive, and the principle that official actions must flow from statutory authority clearly granted and properly exercised. Yet sometimes these fundamental principles conflict. How are such conflicts to be resolved? That is the question posed by this appeal.
18 The British democratic tradition which informs the Canadian tradition has long affirmed the confidentiality of what is said in the Cabinet room, and documents and papers prepared for Cabinet discussions. The reasons are obvious. Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny: see Singh v. Canada (Attorney General), [2000] 3 F.C. 185 (C.A.), at paras. 21-22. If Cabinet members' statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect. The rationale for recognizing and protecting Cabinet confidences is well summarized by the views of Lord Salisbury in the Report of the Committee of Privy Counsellors on Ministerial Memoirs (January 1976), at p. 13:
A Cabinet discussion was not the occasion for the deliverance of considered judgements but an opportunity for the pursuit of practical conclusions. It could only be made completely effective for this purpose if the flow of suggestions which accompanied it attained the freedom and fulness which belong to private conversations -- members must feel themselves untrammelled by any consideration of consistency with the past or self-justification in the future... . The first rule of Cabinet conduct, he used to declare, was that no member should ever "Hansardise" another, -- ever compare his present contribution to the common fund of counsel with a previously expressed opinion…
The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly. In addition to ensuring candour in Cabinet discussions, this Court in Carey v. Ontario, [1986] 2 S.C.R. 637, at p. 659, recognized another important reason for protecting Cabinet documents, namely to avoid "creat[ing] or fan[ning] ill-informed or captious public or political criticism". Thus, ministers undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.
19 At one time, the common law viewed Cabinet confidentiality as absolute. However, over time the common law has come to recognize that the public interest in Cabinet confidences must be balanced against the public interest in disclosure, to which it might sometimes be required to yield: see Carey, supra. Courts began to weigh the need to protect confidentiality in government against the public interest in disclosure, for example, preserving the integrity of the judicial system. It follows that there must be some way of determining that the information for which confidentiality is claimed truly relates to Cabinet deliberations and that it is properly withheld. At common law, the courts did this, applying a test that balanced the public interest in maintaining confidentiality against the public interest in disclosure: see Carey, supra.
[40] In 2004 BCSC 1311 at para. 20, Smith J., as she then was, summarized the factors to be considered when considering a claim of public interest immunity, that Macaulay J. applied 2012 BCSC 244 as follows:
(i) the nature of the policy concerned;
(ii) the particular contents of the documents;
(iii) the level of the decision-making process;
(iv) the time when a document or information is to be revealed;
(v) the importance of producing the documents in the administration of justice, with particular consideration to:
- the importance of the case,
- the need or desirability of producing the documents to ensure that it can be adequately and fairly represented,
- the ability to ensure that only the particular facts relating to the case are revealed.
(vi) any allegation of improper conduct by the executive branch towards a citizen.
[41] The Master referred to, but did not examine each of these criteria in her reasons.
[42] I accept the submission of the Association that while the level of the decision-making process favours non-disclosure of the Cabinet submission, the other factors are either relatively neutral, or favour disclosure.
[43] In 2014 BCSC 336, Savage J. noted, at para. 29, as I do here, that the Attorney did not file an affidavit asserting that any particular harm would flow if the Cabinet submission were disclosed. He commented:
In my view the importance of an open and transparent process outweighs the interest in maintaining confidentiality in this case. This is particularly so because this is the second judicial review of the LA's response to the 2010 JCC Report. As in the First Judicial Review and the decisions in Leeds and Carey, there is no affidavit before me asserting that any particular harm would flow from disclosure of the 2013 Cabinet Submissions. Having reviewed them, I find the 2013 Cabinet Submissions to be relevant, with the proviso noted by Macaulay J. that they are what they are: background information for consideration by the Cabinet in formulating the 2013 Response.
[44] In British Columbia Teachers’ Federation v. British Columbia, 2013 BCSC 1216 at para. 24, Madam Justice Griffin adopted the governing principles regarding the production of Cabinet documents summarized by Burnyeat J. in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2002 BCSC 1509:
24 In the Health Services Document Decision, Burnyeat J. set out the law on the production of documents subject to a public interest immunity claim as follows at para. 20:
The learned authors of The Law of Evidence in Canada (Toronto: Butterworths, 1999) summarize the factors which the Courts have considered in weighing the balance between disclosure and immunity:
The judge must weigh the competing public interests by considering such factors as: (a) the probative value of the evidence in the particular case and how necessary it will be for a proper determination of the issues, (b) the subject-matter of the litigation, (c) the effect of non-disclosure on the public perception of the administration of justice, (d) whether the claim or defence involves an allegation of government wrongdoing (in which case the claim for immunity may be motivated by self-interest and not a genuine concern for the secrecy of the information), (e) the length of time that has passed since the communication was made, (f) the level of government from which the communication emanated, and (g) the sensitivity of the contents of the communication (including whether and the extent to which there has been prior publication of the information). The court, therefore, must balance the possible denial of justice that could result from non-disclosure against the injury to the public arising from disclosure of public documents which were never intended to be made public.
[45] The factors listed by Mr. Justice Burnyeat were not commented on by the Master, but without reviewing the Cabinet submissions, the probative value of the information contained in it and the effect of its non-disclosure cannot be assessed.
[46] The Cabinet submission does relate to the subject matter of the litigation, and absent an affidavit asserting that any particular harm would flow if the Cabinet submission were disclosed, it is difficult to determine whether the claim for immunity may be motivated by self-interest and not a genuine concern for the secrecy of the information.
[47] I have already accepted that the level of government involved is a factor favouring non-disclosure of the submissions, but I am unable to determine the sensitivity of the submissions, save to return to the finding of the Master that the government response is routinely informed by a detailed submission to Cabinet.
[48] The Master dealt with the Attorney’s assertion that public interest immunity mitigated against the disclosure of the Cabinet submission. After referring to the decision of Macaulay J. in 2012 BCSC 244, she concluded at paras. 23 – 28 that:
23 As we are dealing with the same process, the considerations are virtually identical. Similarly here, there is no evidence that any harm would flow from production of the document. I conclude, as did Macaulay, J., that the high level of importance and the need to ensure transparency in this process require that this document be produced.
24 The Attorney General argues that granting the order sought would result in routine production of Cabinet submissions in every future application for judicial review regarding judicial remuneration.
25 In my view, that would only be so if the future petition attacked the factual underpinnings of the decision, if the decision-making process remained unchanged, i.e. informed by a Cabinet submission, and if no harm would flow from its production.
26 The Attorney General relied upon British Columbia Teachers' Federation v. British Columbia, 2013 BCSC 1216, which at para. 26 cited Carey v. Ontario, [1986] 2 S.C.R. 637, para. 657, "some business is better conducted in private" and argued that routine production would have a negative impact on the ability of the persons involved to be candid.
27 In the circumstances here, however, the need for transparency must trump the potential impact of routine disclosure on the candidness of the persons involved.
28 Thus, I conclude that the Cabinet submission is producible and order that the respondent, Attorney General, produce a copy of the Cabinet submission relied on in formulating the government response referred to in affidavit #1 of Neil Reimer, sworn March 1, 2018.
[49] As counsel for the Attorney did before the Master (who was not counsel before me), counsel for the Attorney before me contended that if the Master’s Order for disclosure of the Cabinet submission was upheld, then such submissions would have to be disclosed as a matter of routine whenever the recommendations of a JCC were not adopted by the Legislature, with the result that such submissions would then be prepared with such knowledge and tailored in a manner that was less helpful in encouraging frank discussion by Cabinet with respect to JCC recommendations.
[50] I find such a submission troubling in a light of the Master’s finding that the detailed submission to Cabinet routinely informed the government response. That routine information is what mandates its disclosure, “if the future petition attacked the factual underpinnings of the decision, if the decision-making process remained unchanged, i.e. informed by a Cabinet submission, and if no harm would flow from its production” as described by the Master.
[51] Further, the Supreme Court of Canada has endorsed the need to weigh and assess the government’s participation in the whole of the process in order to determine if the government has meaningfully engaged and whether it has given a rational answer. If the government’s participation in the process is to be weighed and assessed, it is reasonable to expect that any Cabinet submission will not be tailored to mask that participation.
[52] I find that the Master was not wrong, let alone clearly wrong, in finding that the principle of public interest immunity did not mitigate against the disclosure of the Cabinet submission.
[53] The appeal of the Master’s decision is dismissed, with costs to the Association at Scale B, in any event of the cause.
The Honourable Chief Justice Hinkson