Sunday, 20 October 2013

Good Record Management Again: the Lori Douglas Affair

There is another interesting Federal Court case which followed hot on the heels of the Slansky case I posted about hereDouglas v. Canadian Judicial Council. The theme is similar: what sort of material can a decision-maker be compelled to produce?

The underlying inquiry is into the Associate Chief Justice of the Manitoba Court of the Queen's Bench. Further details can be found at the links grouped here. During the inquiry, the independent counsel resigned, apparently because of the conduct of the Inquiry Committee.

Douglas asked the Committee to recuse itself; the underlying judicial review is of the Committee's refusal to do so. Douglas also asked to see the independent counsel's resignation letter, presumably because it expresses concerns about the Committee's conduct of the inquiry. The Committee refused to release the letter.

One of the questions was whether this refusal was a reviewable decision. Prothonotary Tabib held that it was:
The Court, however, on a preliminary motion such as this, should be careful that it does not, through an unduly narrow reading of a notice of allegation, prevent the Applicant from asserting and the Court from considering all arguments and relief that fairly arise from the notice of application and the grounds raised therein, provided that they present a reasonably arguable case. The Applicant’s arguments, as briefly outlined above and more fully developed in the Applicant’s motion record, as to whether a solicitor-client relationship can or did properly arise and whether privilege can properly be claimed in the present case, as to whether an inference can be drawn from the circumstances that the CJC instructed Mr. Pratte to discontinue his judicial review, and whether such instructions, if given, would be inappropriate and give rise to a reasonable apprehension of institutional bias, raise serious, arguable issues that are rationally connected to and arise from the facts alleged and the grounds raised in the Notice of Application.
Thus, "communications between the CJC and the Independent Counsel properly constitute the record of that decision, and are amenable to disclosure..."

Prothonotary Tabib preferred not to make a determination on the merits of the assertion of privilege, as this was properly a matter for the judge of the underlying application for judicial review. The letter was treated as part of the record, but under seal, for the review by the reviewing judge:
I therefore conclude that while the communications between Mr. Pratte and the CJC, as contained in the sealed envelope filed by the CJC on this motion, properly constitute the record relevant to the judicial review of the CJC’s assertion of a solicitor-client relationship and should in any event be put before the Court as relevant to the determination of the issues of institutional bias raised in this application, they are to be filed under confidential seal and not disclosed to the public or to the Applicant pending the determination of the Court on the merits of the application.

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