The Application seeks an order in the nature of certiorari, quashing the changes to the self-identification provisions and remitting the matter to the Minister for redetermination, as well as declaratory relief related to the Education Act, the Human Rights Act, and the Canadian Charter of Rights and Freedoms. [...] In Enbridge, the Court of Appeal distilled the factors for determining when the public interest in non-disclosure will override the ordinary right of a party to access relevant evidence: a) The nature of the policy; b) The contents of the documents; c) The level of the decision-making process and the need to protect the confidences of Cabinet; d) The importance of producing the documents to the ad. [...] Neither the Court nor the Applicant has any information regarding the contents of the documents beyond the descriptions in the index to the Record and the one briefing note that was publicly released (albeit with redactions). [...] While acknowledging that the documents related to that process were before the Minister when he made the decisions under review, the Respondent is attempting to keep the reasoning process secret from the CCLA, the Court, and the public. [...] The Applicant submits that pursuant to Carey and Enbridge, the proper process is for the Respondent to submit the withheld documents to the Court under seal, and the Court should review the documents to determine if the documents, or a portion of them, were properly withheld on the basis of public interest immunity.
- Pages
- 42
- Published in
- Canada
- Title in English
- Court File No. FM-76-23 IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK [from PDF fonts]
Table of Contents
- PART I – OVERVIEW 5
- PART II – FACTS 6
- A. The decisions, Application, and record on judicial review 6
- B. Information in the Record regarding the Minister’s review of Policy713 8
- C. The post-decision process and the Minister’s second decision 14
- PART III – ISSUES 15
- PART IV – LAW & ARGUMENT 16
- A. The Court may order production to fix deficiencies in the Record 16
- B. The briefing notes and related communication are the Minister’sreasons for decision 18
- C. Claims of “Crown/Public Interest Privilege” 19
- Nature of public interest immunity 19
- Procedure for assessing public interest immunity claims 21
- Factors for analyzing public interest immunity claims 23
- (a) The nature of the policy 24
- (b) The contents of the documents 25
- (c) The level of decision-making 26
- (d) The importance of the documents to the administration of justice 27
- (e) Time that has elapsed, (g) policy formation vs implementation,and (h) “present policy” 28
- (f) Allegations of improper conduct 29
- Summary on Enbridge Factors 31
- D. Redactions to the Record 31
- E. The “review process” parts of the Record are incomplete 32
- PART V – RELIEF SOUGHT 1
- PART VI – LIST OF AUTHORITIES 35
- Excerpts of Statutes and Rules 37
- Education Act, SNB 1997, c E-1.12 37
- Human Rights Act, RSNB 2011, c 171 38
- Rules of Court, NB Reg 82-73 39
- The Law of Evidence in Canada, excerpt 40
