The Certified Tribunal Record (CTR) contains photocopies of only those documents related to the decision. Documents received after the date of the decision are not relevant to the decision being challenged in the Federal Court and must not be included in the CTR.
Type of documents to be excluded from the CTR
Examples of sensitive documents which should be protected from disclosure can be found in the Checklist of Documents Excluded from the Certified Tribunal Report (CTR).
If any material in the file appears to fall into any of the below categories, do not create or distribute the CTR until you have discussed these documents with BCL and/or DOJ, in order that an informed decision can be made on how best to proceed.
Procedures for maintaining confidentiality of the documents
Depending on which of the following two categories the documents fall into, a different procedure must be followed to maintain their confidentiality from disclosure:
Solicitor-client privileged communications
This can include e-mails, letters, copies of draft affidavits, legal opinion, etc.
These documents can be protected from disclosure by the litigation counsel writing to the Court, pursuant to the applicable Federal Court Rule, informing the Court that an objection is being made to the production of documents based on solicitor-client privilege;
Documents from sections 37 and 38 of the Canada Evidence Act
The materials must be protected through an application by litigation counsel to the Court, supported by "a Minister of the Crown" or other interested person certifying orally or in writing to the Court that the information should not be disclosed, and objecting to its disclosure.
The Court will determine if it must be disclosed or not. In accordance with section 39, the information is protected without the necessity of an application to the Court, but still requires a Minister of the Crown or the Clerk of the Privy Council to object to the disclosure by certifying such objection in writing.
On occasion, unsolicited third party information (also called "snitch letters", "tips", "poison pen letters", etc.) is received by offices advising of some unfavourable information concerning the applicant.
These letters may contain personal information about the person providing the information and should not be divulged or edited before disclosure. It is advisable to discuss these types of materials with BCL and/or the litigation counsel prior to releasing such material through the distribution of the CTR.
Litigation counsel should take action to secure protection from disclosure of this kind of information. It is crucial to carefully review all the documents and information in your file before preparing the CTR, immediately bringing to the attention of BCL and/or the litigation counsel documents or information which should not be included in the CTR.
See samples of cover letters or memorandum for documents that have been excluded from the Certified Tribunal Record.
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