Paul Slansky v. Attorney General of Canada, et al.

(Federal) (Civil) (By Leave)


Administrative law - Judicial review, Evidence, Civil procedure, Discovery.


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Administrative law – Judicial review – Evidence – Civil procedure – Discovery – Solicitor-client and public interest privilege – Applicant lawyer bringing application for judicial review of respondent Judicial Council's decision to dismiss his complaint about conduct of a Superior Court judge – Judicial Council refusing to disclose report from counsel retained to make further inquiries into applicant’s allegations – Whether judicial reviews can be conducted if applicant and court are deprived of entirety of evidentiary tribunal record – Whether solicitor-client or public interest privilege can attach to report of a fact-finding investigation, conducted by very tribunal charged with rendering a decision – Whether Federal Court of Appeal misapplied solicitor-client and public interest privilege – Whether invocation of government agency solicitor client/public interest privilege by a statutory tribunal can trump applicant’s constitutional right to judicial review.

The applicant complained to the respondent Judicial Council that a Superior Court judge had been guilty of serious misconduct during a first-degree murder trial in which the applicant was representing the accused. The Chairperson dismissed the complaint and closed the file without referring it to a hearing panel of the Council. In making his decision, the Chairperson relied on a report from counsel whom he had retained to make further inquiries into the applicant’s allegations. When the applicant brought an application for judicial review, the Council refused to disclose the report as part of the tribunal record requested, claiming that the report was protected by solicitor-client privilege, and was also subject to public interest privilege. Subject to the redaction of pages in the report that she considered to be legal advice, the prothonotary granted the applicant’s motion to compel disclosure of the report. The Federal Court reversed that decision. The Federal Court of Appeal, in a majority decision, dismissed the applicant’s appeal.