Nova Scotia v. O'Connor

Nova Scotia v. O'Connor Court Court of Appeal Date 2001-03-02 Citation 2001 NSCA 47 Docket CA 169637 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice) Document Type Decision Decision Content Date: 20010302 Docket: CA 169637 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia v. O’Connor, 2001 NSCA 47 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA as represented by DR. PATRICIA RIPLEY Deputy Minister of the Priorities and Planning Secretariat Appellant - and - DANIEL O’CONNOR Respondent D E C I S I O N Counsel: Louise Walsh Poirier for the appellant Graham J. Steele for the respondent Application Heard: March 1st, 2001 Decision Delivered: March 2nd, 2001 BEFORE THE HONOURABLE JUSTICE CROMWELL IN CHAMBERS CROMWELL, J.A.: (in chambers) [1] This is an application by the appellant for a stay of execution of the order under appeal. [2] Her Majesty the Queen in right of Nova Scotia has appealed the decision and order of MacDonald, A.C.J.S.C., in which he decided an appeal to the Supreme Court under the Freedom of Information and Protection of Privacy Act, S.N.S. 1993 c. 5. Broadly stated, the proceedings before the chambers judge concerned whether access to documents prepared for a review of some 1100 government programs carried out by the Priorities and Planning Secretariat could be refused on the basis that they were covered by the deliberations of the executive council exemption in s. 13 of the Act. [3] The judge ordered the production of information relating to the review of 86 government programs which have been eliminated. He held that the material constituted advice given and/or recommendations made to Cabinet’s Priorities and Planning Committee by its Secretariat, but that access to it should be granted because the material sought in relation to these 86 discontinued programs constituted background information for the purpose of presenting explanations or analysis to cabinet for consideration in making a decision that has been implemented. The judge upheld the refusal of access to material concerning the roughly 1000 other programs which had been reviewed. [4] The judge stayed his order for 30 days pending any further order of the Supreme Court or the Court of Appeal. He did so with the stated intention of preserving the appellant’s right of appeal. The appellant applies, in essence, for continuation of that stay. [5] Since the judge’s order, the appellant has advised that it intends to release the material relating to 85 of the 86 programs but is continuing to resist disclosure of the material relating to one of them, chosen at random, in order to preserve its right of appeal. [6] The appellant accepts that, for the stay to be granted, it must meet the three part test set out in Fulton Insurance Agencies Ltd. v . Purdy (1990), 100 N.S.R. (2d) 341 (S.C. A.D. Chambers) at 346 - 347. It is submitted that there is (i) an arguable issue raised on the appeal; (ii) that if the stay is not granted, the appellant will suffer irreparable harm; and, (iii) that the balance of convenience between the appellant and the respondent favours granting the stay. [7] The respondent does not take serious issue with either the first or the third aspects of the test. It is common ground that the issues raised by the appeal have not been addressed by this Court. I accept that the notice of appeal raises arguable issues for the purposes of the Fulton test. As for the balance of convenience, there is no evidence before me and there is nothing in the reasons of the chambers judge suggesting that the respondent would suffer irreparable or any harm if the stay were to be granted. [8] The main point of contention is with respect to the second branch of the test, namely, whether the appellant will suffer irreparable harm if the stay is refused and the appeal were to be allowed. [9] The appellant alleges two types of irreparable harm. The appellant’s position on the merits of the appeal is that the material ordered to be produced falls within s. 13(1) of the Act and, therefore, that the head of a public body has a discretion to refuse its disclosure. Where such a discretion exists, the head of the public body cannot be ordered to give access: s. 45(2). Whether that discretion exists in relation to this material is the main issue on appeal. The discretion which the appellant claims for the head of the public body has been exercised to release 85 of the 86 sets of material ordered released, but has also been exercised to withhold one of them. It is submitted that the effect of denying the stay would be to override the exercise of the claimed discretion without permitting its legality to be tested on appeal. In other words, the denial of the stay would, in effect, decide the point of law raised by the appeal against the appellant. Moreover, refusal of the stay might render the appeal moot which, of itself, may constitute irreparable harm. [10] The respondent says there is no irreparable harm because the Crown is no longer concerned about whether the information in issue becomes known, but simply with the interpretation of the Cabinet confidentiality provisions of the Act. It follows, argues the respondent, that release of the information cannot constitute irreparable harm because it is clear no harm will be caused by its release. The respondent also says that, given the willingness to grant access to virtually all of the material sought, the appeal no longer concerns a concrete dispute but rather raises hypothetical issues. [11] To evaluate these interesting and, I think, novel arguments, it is necessary to consider the meaning and purpose of the requirement for irreparable harm as a condition of obtaining a stay pending appeal. [12] The term “irreparable harm” comes to us from the equity jurisprudence on injunctions. In that context, it referred to harm for which the common law remedy of damages would not be adequate. As Cory and Sopinka, JJ. pointed out in RJR — MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 312 at 341, the traditional notion of irreparable harm is, because of its origins, closely tied to the remedy of damages. [13] However, in situations like this one which have no element of financial compensation at stake, the traditional approaches to the definition of irreparable harm are less relevant. As Robert J. Sharpe put it in his text, Injunctions and Specific Performance (Looseleaf edition, updated to November, 2000) at § 2.450, “... irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case.” [14] It is, therefore necessary to consider the risk of harm in the specific context of an access to information case in which an order granting access has been made and is being appealed. In that situation, the risk if a stay is not granted pending appeal is that the information will be released and thereafter, if the appeal succeeds, that release will be found to have been unlawful. In my view, such wrongful release may constitute irreparable harm in at least three ways. [15] First, the release of the information may injure the persons affected by its release in ways which cannot be compensated by money. [16] Second, once access to information is granted, it cannot be undone if the order for access is subsequently reversed on appeal. The harm is irreparable in the sense that a legal wrong has been committed which cannot be compensated or reversed. In some cases, the injury resulting from disclosure will be minimal, but that does not detract, in my view, from the proper characterization of the wrongful disclosure as constituting irreparable harm. As Cory and Sopinka, JJ. said in RJR — MacDonald, supra, irreparable refers to the nature of the harm rather than its magnitude. The essence of the concept is a wrong which cannot be undone or cured. The unlawful disclosure of information, even where it does not injure anyone, is a wrong which cannot be undone or cured and is, therefore, capable of being “irreparable” for the purposes of a stay pending appeal. [17] Third, the disclosure of the contested information will generally render the effects of a successful appeal nugatory. There is ample authority for the proposition that where that is the result of the refusal of a stay pending appeal or judicial review, irreparable harm has been shown: see, for example, National Financial Services Corp. v. Wolverton Securities (1998), 160 D.L.R. (4th) 688 (B.C. C.A. Chambers) at § 29 and 32; Suresh v. Canada (Minister of Citizenship and Immigration) (1999), 176 D.L.R. (4th) 296 (Fed. C.A. Chambers) at pp. 305 - 307; Gaudet v. Ontario (Securities Commission) (1990), 38 O.A.C. 216 (Div. Ct.); Re Hayles and Sproule (1980), 29 O.R. (2d) 500 (Ont. Div. Ct.). [18] In this case, only the second and third of these considerations are relevant. There is no suggestion that granting access to the information risks injury to anyone. The argument is that if the release of the information is found on appeal to have been wrong, that wrong cannot be undone if a stay is refused and that the refusal of the stay renders the appeal academic. [19] This case has an added feature which, in the respondent’s submission, takes away the foundation for the appellant’s claim of irreparable harm. As noted, the appellant has advised the respondent that it intends to grant access to the material relating to 85 of the 86 programs and resists giving access only to one chosen at random. The clear inference is that the appellant is not concerned about the contents of the information becoming public. If that is the case, the appeal raises hypothetical issues and a stay should not be granted for the purpose of preserving a facade of a real issue when none, in fact, exists. [20] I cannot accept this submission. In my view, the respondent’s argument focuses, incorrectly, on the injury ( or lack of it) that may be caused by the information becoming public. As the analysis above shows, the risk of actual injury caused by wrongful disclosure may constitute irreparable harm. That is not the only way, however, that wrongful disclosure may constitute irreparable harm. In my view, the forced disclosure of information, if subsequently proved to have been wrongful, itself constitutes irreparable harm. The forced disclosure is an action taken under compulsion which is later proved to have been unlawful. The wrongful disclosure cannot be undone or compensated by money damages. Once disclosure has been made, the right of appeal becomes academic. In my opinion, the refusal of a stay in this case exposes the appellant to irreparable harm in these two senses of the term. [21] Moreover, I think that acceptance of the respondent’s argument would tend to defeat, rather that further, the objects of the Act. Two of those objects are to ensure that public bodies are fully accountable to the public by giving a right of access to records and to provide disclosure of government information. The respondent’s argument amounts to saying that the appellant would be in a better position on the stay application and at less risk of its appeal being found to be moot if the appellant had simply persisted in its refusal to give access to any of the information ordered disclosed by the judge and sought a stay of his order in its entirety. Acceptance of the respondent’s argument, therefore, could only encourage persistent refusal to disclose pending appeal rather than to encourage substantial disclosure in accordance with the objects of the Act as has happened here. [22] Of course, the question of irreparable harm must also be considered from the perspective of the respondent. In this case, there is no suggestion of any harm to the respondent if access to the information is denied pending the hearing of the appeal. [23] For these reasons, I continue the stay granted by MacDonald, A.C.J.S.C. until June 12, 2001, the day set for the hearing of the appeal. I select that date rather than the more usual order lasting until the final disposition of the appeal because there was some suggestion that the granting or withholding of the stay could affect the issue of whether the appeal is moot. As the question of mootness, if raised, is one that must be decided by a panel of the Court and not by a single judge, I think it appropriate to leave the question of any continuance of the stay beyond the date set for the hearing of the appeal to the panel which will deal with the merits. I also make the stay conditional on the appellant complying with the filing dates for the Appeal Book and appellant’s factum which were established in chambers, that is, April 9 for the Appeal Book and April 23 for the factum. I would ask the appellant’s counsel to submit a redrafted order reflecting my decision approved as to form by counsel for the respondent. [24] As the point raised on this application was a novel one, I would not award costs for or against either party. Cromwell, J.A.