Murchison v. Export Development Canada

Murchison v. Export Development Canada

The Court held that delay in responding within 30 days does not forfeit an institution's statutory right to claim exemptions; many of EDC's claimed s.27 solicitor-client exemptions were invalid because documents were non-privileged attachments, copies to in-house lawyers in non-legal roles or emails not seeking/providing legal advice, some exemption letters lacked delegated authority and are of no effect, and redactions must be reasonably limited; accordingly numerous redacted portions listed in Schedule A were ordered disclosed, subject to a 30-day window for EDC to re-establish any prior valid solicitor-client claims for specific pages.

Citation
2009 FC 77
Parties
Applicant: Keith N. Murchison; Respondent: Export Development Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
26 January 2009
Procedural Posture
Application for Review Under S.41 Privacy Act / Reasons for Order and Order (final Federal Court Decision)
Outcome
Application allowed in part; many withheld documents ordered disclosed; partial success for applicant; no costs awarded to either party
Legal Topics
Privacy Act S.12(1) Access, S.27 Solicitor Client Privilege, Timeliness/deemed Refusal, Treasury Board Guidelines Compliance, Redaction and Severance, Delegation of Authority
Source Language
English
Privacy Law Administrative Law Access to Information Solicitor Client Privilege Employment Law Privacy Act S.12(1) Access S.27 Solicitor Client Privilege Timeliness/deemed Refusal +3 more

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Parties

Keith N. Murchison

Applicant

Export Development Canada

Respondent

Procedural Posture

Application for Review Under S.41 Privacy Act / Reasons for Order and Order (final Federal Court Decision)

Legal Issues

  1. 1 Whether respondent waived or lost right to claim exemptions by missing 30-day response deadline
  2. 2 Whether claimed solicitor-client privilege (including in-house counsel communications) was valid
  3. 3 When litigation privilege attaches for contemplated litigation

Ratio Decidendi

The Court held that delay in responding within 30 days does not forfeit an institution's statutory right to claim exemptions; many of EDC's claimed s.27 solicitor-client exemptions were invalid because documents were non-privileged attachments, copies to in-house lawyers in non-legal roles or emails not seeking/providing legal advice, some exemption letters lacked delegated authority and are of no effect, and redactions must be reasonably limited; accordingly numerous redacted portions listed in Schedule A were ordered disclosed, subject to a 30-day window for EDC to re-establish any prior valid solicitor-client claims for specific pages.

Court Disposition

Application allowed in part; many withheld documents ordered disclosed; partial success for applicant; no costs awarded to either party

Orders

  • Release of information listed in Schedule A to the Order to the extent indicated, subject to respondent establishing valid prior solicitor-client claims for certain pages within 30 days
  • Disclosure need not be made for 30 days to permit filing of an appeal