Case information

Administrative law — Judicial review — Record of proceedings — Production order — Provincial cabinet amending regulations via order in council to phase out mink farming in British Columbia — Respondent mink farmers and industry associations bringing application for judicial review of order in council — Part of record of proceedings withheld as confidential policy advice or subject to cabinet privilege — Legal framework for judicial review of promulgation of regulations by Cabinet — Scope of record on judicial review of Cabinet regulation — Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 17<br>

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By way of an Order in Council made under the Animal Health Act, S.B.C. 2014, c. 16, the applicant Lieutenant Governor in Council of British Columbia (hereafter, “Cabinet”) amended certain regulations with a view to phasing out all mink farming operations in the province.

The respondent mink farmers and industry associations (hereafter, the “farmers”) sought judicial review of the regulatory amendment. In response, Cabinet produced only part of the record that had been before it; the remainder was withheld on the basis that it constituted confidential policy advice or was subject to Cabinet privilege.

The farmers then applied for an order for production of the record of the proceeding. The farmers sought all documents considered, either directly or indirectly, by Cabinet in making the Order in Council; all correspondence about the decision-making process; and all documents relating generally to the decision-making process of Cabinet, including background policies, briefing notes, memoranda prepared by ministries, and Cabinet decision documents.

The application was granted in part. The application judge ordered the applicants to produce a detailed affidavit identifying the documents not already produced that were directly or indirectly considered by Cabinet and the basis for the assertion of public interest immunity in respect of each document.

The Court of Appeal allowed the appeal in part and struck the words “or indirectly” from the application judge’s order: only those documents that were before Cabinet when the decision was made to pass the Order in Council were required to be listed in the affidavit.