Review Success Leads to Release of Documents

Lower mainland citizens living around Burrard Inlet may soon hear a lot more about their brewing sewage problems. With assistance from ELC student Keyvan Monsef, Ecojustice recently obtained two orders from the Office of the Information and Privacy Commissioner directing the release of important documents from a private prosecution they launched that was subsequently stayed by the Attorney General of Canada.

In 2007, Ecojustice mounted a private prosecution against Greater Vancouver Regional District (GVRD), the Greater Vancouver Sewerage and Drainage District (GVDD) and the Province of BC. The case involved the alleged release of toxins from the Lions Gate Wastewater Treatment Plant into the Burrard Inlet. Ecojustice charged that the treatment plant was in contravention of the federal Fisheries Act, which prohibits the release of harmful substances into any fish-bearing waters.

Later that year, the private prosecution was quashed by Attorney General of Canada (AG Canada). A prosecutor from the Department of Justice claimed in a letter that the evidence did not “demonstrate a reasonable prospect of conviction and it was not in the public interest to continue these proceedings.”

Ecojustice responded by making a request under the Freedom of Information and Protection of Privacy Act (FOIPPA) for the AG Canada to release the information explaining how the decision was made. This request was denied on the basis of solicitor-client privilege and the risk of revealing information regarding prosecutorial discretion. Ecojustice appealed the matter.

Keyvan assisted Ecojustice by preparing submissions and writing two memos. The lawyer working with Keyvan had this to say about his work: I’m absolutely bowled over by the strength of this draft submission. I’ve never seen such cogent drafting by a law student before, especially on a legal issue that is quite challenging due to the unique private prosecution context and the intersection of so many areas of statutory and common law. You are a great legal writer! The quality of this is at the level of a first year lawyer.

In January 2010, the Office of the Information and Privacy Commissioner ordered that the requested information be released. In a summary released with the Order, the Adjudicator noted: Legal professional privilege does not apply because the records were communications between a lawyer and a third party. Litigation privilege, if it existed, expired because litigation between the parties ended and the possibility of future related litigation was entirely speculative.

The ELC was pleased to assist Ecojustice in this matter and hopes the documents in question are released in the near future.

Link to Orders:

ELC clinic student Keyvan Monsef In the summer of 2008, I was a caseworker at the ELC and enjoyed a rewarding experience. I had just finished my first year at Queen’s Law and had no idea what to expect from a clinic course. The case that I was assigned turned out to be much more complex than I could have anticipated. It was a judicial review of a denied application for document disclosure pursuant to the Freedom of Information and Protection of Privacy Act, relating to a wastewater treatment plant in West Vancouver. Having never taken a course in administrative or privacy law, I had to essentially learn everything from scratch. I had the pleasure of working with Lara Tessaro, a lawyer at Ecojustice in Vancouver. On behalf of Ecojustice, I drafted submissions that were subsequently presented to the Office of the Information and Privacy Commissioner for British Columbia. Just recently, Ecojustice and the ELC were notified that the OIPC ordered disclosure of the documents. As I look back nearly two years later, I am now able to appreciate the experience in a new light. It was my first chance to apply myself to a real-world legal issue, particularly one that related to the maintenance of the waters and beaches in my hometown. It helped to prepare me for the rigours of a career beyond law school, one marked by a new kind of responsibility. I also learned that in the practice of public interest law, often issues in cases hinge on a variety of areas of law, as they did in my case. Not all environmental issues find their answers in so-called “environmental law.” Therefore it is always important for young lawyers to learn as much law as possible, even if some areas may appear to be unrelated to one’s future practice. I am grateful to my classmates and the staff at the ELC and Ecojustice. As one of the few out-of-province students at the clinic, it did not take long for me to feel at home. I am particularly thankful to Calvin Sandborn and Holly Pattison for being supportive and helpful throughout the summer, and keeping me updated as the case progressed. Keyvan Monsef 10 March 2010