This case involved a damage action against the Federal Government alleging trespass, assault and negligent navigation arising out of the seizure of the Spanish fishing vessel “Estai” on the high seas in 1995. The decision involved a pre-trial application for an order that a Crown official answer a number questions with respect allegations that the Canadian Government was involved in vote buying in order to get the support of Cuba and other countries to support it in its successful bid at a N.A.F.O. meeting to obtain a large share of the Greenland halibut quota in 1995. The Crown opposed the application on the basis that disclosure would be contrary to the public interest and as such was exempt from disclosure pursuant to ss. 37 and 38 of the Canada Evidence Act.
At first instance (2001 FCT 1434 (Fed. Ct. T.D.) (Nadon, J.)), the court denied the Plaintiff’s application on the ground that disclosure would have a “chilling effect” on Canada’s international relations. It also concluded that the answers sought from the Crown were irrelevant to the issues before the court.
Upon appeal, the Federal Court of Appeal allowed the appeal and required the questions to be answered with Canada being given the right to file a new certificate because the current certificate was filed before the questions were asked and did not state the release of information would be injurious to Canada’s international relations. Even though the Court of Appeal agreed with the motions judge that “the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs case” (one of the factors to be considered in the test set out in R. v. Kahn, [1996] 2 F.C. 316 (T.D.)), it decided to allow the appeal.