Les Leyne: Appeal Court ruling closes door on cabinet documents

Les Leyne mugshot genericJust to finish off the comprehensive dismantling of previous B.C. Teachers’ Federation legal victories, the Court of Appeal also this week reversed an earlier ruling about publication of cabinet documents.

The union had managed to get a restricted and qualified peek at documents that reflected the provincial cabinet’s thinking during the tense contract negotiations of a few years ago that prompted the BCTF’s Supreme Court action.

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The documents clearly influenced Justice Susan Griffin’s decision that the government had negotiated in bad faith during that round. They would have made for an interesting read had they been fully released.

But just as the Appeal Court reversed the bad-faith decision in favour of the BCTF, it also re-closed the door to making confidential cabinet deliberations public. While the main case was decided 4-1, the secondary ruling on cabinet confidentiality was unanimous.

The government originally waived its privilege claim on the cabinet deliberations, on condition that they could be discussed during proceedings, but not made public. During its closing argument, the BCTF filed submissions that quoted from the documents at length, which prompted an objection from the government.

The union applied to vary the previous restrictions on their use, so it could make the closing arguments — with all those references to cabinet deliberations — available to more than 40,000 members.

Griffin noted the competing interests of fostering free and open debate between cabinet ministers in private meetings versus the public interest in an open-court process. Then she ruled that the documents had been created with the expectation that they would not remain confidential if litigation ensued. For that and other reasons, she granted the BCTF permission to use the documents publicly.

The government later won a stay while filing an appeal on the main decision, which included a block on disseminating the information. So the union cautiously posted a redacted version of the closing arguments — minus the cabinet references — on a website open only to union members.

This week, the Court of Appeal upheld the government’s objection. It said varying the original confidentiality order requires a material change in circumstances, but there was no such change in this case.

“While cabinet members may have expected the documents would be disclosed in litigation, there would also be an expectation that any documents disclosed would be kept confidential.

“The fact that counsel for BCTF read out portions of the confidential documents in open court does not change this result.”

The BCTF argued that because some cabinet documents were read out during the trial, they had already become public record, something the Appeal Court described as “the horse was out of the barn” argument.

It rejected that, as well, saying the BCTF lawyer reading out long passages shouldn’t negate the carefully crafted earlier arrangements on how to treat the cabinet records.

“Their whole tenor was that disclosure was made only to the extent necessary to try issues … on the understandings that cabinet documents would be identified and marked as confidential; that no transcript … would be made available to the public without a court order.”

The deal also requires that all the documents and copies be returned to the government and any notes referring to the documents be destroyed, at the end of the trial and any appeal.

The NDP Opposition obtained a transcript from the court by error that referred to some of the documents, and made guarded references to them in the legislature last year, before returning them to the court.

It’s not clear if the BCTF will ask for leave to take the side issue to the Supreme Court of Canada along with the main argument.

lleyne@timescolonist.com

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