Nunavut Tunngavik Inc. v. Canada

Cabinet confidence - Privilege - Document production - Nunavut Land Claims Agreement

The Nunavut Court of Justice released a decision on November 11, 2014 in Nunavut Tunngavik Inc. v. Canada, ordering the defendant Attorney General of Canada ("Canada") to produce its final statement of documents and make these documents available to the other parties to this litigation by January 5, 2014. If Canada wishes to claim privilege over any of these documents on the basis that constitute Cabinet confidences it must also file a certificate under section 39 of the Canada Evidence Act (the "Act") by the same date. This order arises from the latest case management conference in Nunavut Tunngavik Inc.'s billion dollar civil suit against Canada over alleged breaches of the Nunavut Land Claims Agreement entered into between Canada and the Inuit of Nunavut in 1993.

Section 39 of the Act can be invoked by the Crown for Cabinet information that "constitutes a confidence of the Queen's Privy Council for Canada" and protects this information from disclosure before a court, person or body with jurisdiction to compel the production of information, but it requires certification in writing by a minister of the Crown or the Clerk of the Privy Council. The plaintiff commenced its lawsuit against Canada on December 7, 2006 and due to the voluminous amount of documentary production involved in this lawsuit the parties agreed to proceed with oral examinations for discovery as document productions proceeded. Following 26 days of oral discovery, the examination of Canada's representative was adjourned in November 2010, pending completion of Canada's production of documents. During oral discovery of Canada's representative Crown counsel frequently stated that Canada would have to review various documents to determine whether it would advance a claim of Cabinet confidence privilege over them. In December of 2013 the plaintiff and third party to this litigation applied for an order to compel Canada to produce a section 39 certificate for all documents it sought to claim Cabinet confidence over, but the Court declined to set a firm deadline for the filing of a certificate and adjourned the motion until June. In June of this year the Court noted that Canada would need to increase its rate of document vetting and again adjourned the motion until August. Then in August the Court again "exhorted Canada to pick up the pace" and ordered Canada to produce a progress report on document production by October 22, 2014 in advance of a case management conference on October 29th, and this decision comes from the results of that case management conference.

The Court has once more chastized Canada for the delays resulting from what began as a "leisurely pace" of document vetting and has only increased in efficiency "at the eleventh hour". The Court noted that it has committed more trial time to this action in 2015 than any trial since it was created in 1999 and for this reason there can be no delay to the trial date set for March 9, 2015.

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