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CIVIL PROCEDURE - Discovery - Production and inspection of documents - Privileged documents - Crown privilege or public interest

Tuesday, December 05, 2017 @ 8:35 AM  

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Appeal by the parties from three orders related to document discovery. The plaintiff was an inmate transferred to a federal penitentiary. The following day he was brutally assaulted by other inmates, resulting in severe injuries. The assault occurred in the prison yard with no guards present, in an area without video surveillance. The plaintiff sued the Crown and individual penitentiary employees on the basis of occupier's liability and negligence. The claim alleged the defendants ought to have known that the plaintiff, as a criminal gang member, was susceptible to a retributive attack by rival gang members housed at the same penitentiary. Document disclosure included 860 documents, of which 111 included redacted information. The defendants took the position that the redacted information would compromise confidential informer privilege, or was justified by the doctrine of public interest immunity. In the first order under appeal, a chambers judge refused disclosure of documents redacted due to informer privilege or public interest immunity. In the second order under appeal, a different case management judge ordered the defendants to answer certain discovery questions on the basis informer privilege did not justify refusal. In the third order under appeal, the first chambers judge declined to re-open the first decision. The plaintiff appealed the first and third orders. The defendants appealed the second order.

HELD: Plaintiff's appeal dismissed and defendants' appeal allowed. Confidential informer privilege applied to civil proceedings without alteration to the underlying principles and procedures. The Crown was not at liberty to disclose information that would give a party the means to identify a confidential informer. The chambers judge's analysis disclosed no reversible errors. She appropriately outlined the requirements for public interest immunity and for confidential informer privilege. Her reasons contained limited detail, but were adequate to explain the tests applied and conclusions reached. Ample evidence supported the chambers judge's conclusions that public interest immunity or confidential informer privilege existed in each case where it was asserted. The procedural irregularity of a changed affidavit by the defendants did not affect the proceedings or result, and did not justify re-opening the first ruling. With respect to the second ruling, the case management judge failed to fully analyze the scope and rationale of the chambers judge’s prior order, and therefore the extent to which issue estoppel was applicable. The case management judge's ruling to answer three discovery questions related to a surveillance video failed to appreciate whether the video was subject to confidential informer privilege. The related questions were returned to the case management judge for further consideration.

Iser v. Canada (Attorney General), [2017] B.C.J. No. 2316, British Columbia Court of Appeal, H. Groberman, S. Stromberg-Stein and P.M. Willcock JJ.A., November 3, 2017. Digest No. TLD-December42017004