CIVIL PROCEDURE - Discovery - Production and inspection of documents - Privileged documents

Law360 Canada (January 10, 2023, 6:45 AM EST) -- Motion by the Applicants to order the production of records. The Applicants filed an Application for judicial review in relation to the Proclamation Declaring a Public Order Emergency. In their Notice of application, they requested the production of records. The Interim Clerk of the Privy Council certified the information contained in those records constituted a confidence of the Queen’s Privy Council for Canada. The Applicants argued the Certificate did not prima facie comply with the applicable legislation and common law since the calendar date of the records was not provided. By not providing a valid certificate with dates as required, the Certificate obfuscated and thwarted public inquiry. Compliance with calendar date requirements could not lead to a substantial likelihood that the content of the documents could be deduced. They also argued nothing in the Respondents’ Written Representations absolved them of the burden to produce a Certificate compliant with legislation. The Respondents argued disclosing the specific date of the documents would undermine the purpose of the legislation by revealing information about the documents themselves. The Respondents’ position was that the Certificate provided a description of the documents that was sufficient on its face to show that the information for which immunity was claimed fell within the applicable legislation and the exercise of discretionary power was proper....
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