The appellant provincial government appealed from a declaration that the Attorney General's confidential Cabinet report to the Lieutenant Governor in Council must form part of the record on judicial review of the government's response to a judicial compensation commission's recommendations.
Applying the framework developed in the companion appeal, the Court held that the party seeking production of a confidential Cabinet document must first establish some basis to believe the document may contain evidence tending to show the government failed to meet a Bodner requirement.
Upon inspection, only two components of the report — the discussion of government-wide implications and the communications plan — provided such evidence, as they referenced labour relations considerations and political communications concerns that may not constitute legitimate bases for departing from the commission's recommendations.
The Court further held that the public interest in disclosure of those two components outweighed the public interest in their continued confidentiality, given their importance to the reviewing court's ability to assess the merits of the Bodner review.
The appeal was allowed in part to narrow the scope of the required production accordingly.
