The B.C. gov't has been ordered to produce an affidavit identifying documents not yet produced in a lawsuit challenging a ban on mink farms.
The B.C. government has been ordered by a judge to provide more information related to the Cabinet’s COVID-related decision to ban mink farms in the province.
Last November, Victoria announced that it was beginning a process to phase out mink farming due to public health risks associated with the coronavirus. There had been a moratorium on new mink farms announced earlier in 2021 when mink on three of B.C.’s nine mink farms tested positive for the virus. About 12 people on farms had also tested positive during the pandemic.
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In response to Cabinet’s decision to phase out all mink farming operations by 2025, six mink farmers and two industry associations launched a court petition earlier this year seeking a judicial review. They are arguing for various reasons that the ban should be suspended and declared to be of no effect.
The government, which is opposing the petition, produced in their responding material what they admitted was only part of the record that was before Cabinet when the decision was made. It claims that the material that has been withheld is “confidential policy advice,” or information subject to Cabinet privilege.
The petitioners applied for an order to direct the government to file the complete record with the court or deliver an annotated list of documents being withheld, produce those documents on a confidential basis, and then convene an in-camera hearing to address the balance of the application.
The government opposed the application and argued that documents subject to public interest immunity should not be ordered to be produced for inspection by the court unless the applicant has established a basis to believe the materials have relevant evidence.
The government said the materials sought are not relevant and claimed that some of the documents were never part of the record and should not be considered during the judicial review.
But B.C. Supreme Court Justice Warren Milman has concluded that the petitioner’s application should be allowed in part.
The judge directed the government to prepare and deliver within 30 days a detailed affidavit identifying the documents, not already produced, reflecting information or submissions that were directly or indirectly considered by Cabinet in their decision.
The government should also provide the basis for their assertion of public interest immunity in each case, added the judge.
“Thereafter, if the parties are still unable to agree on what must be produced and on what terms, they are to schedule an in-camera hearing before me to address that issue. In advance of the in-camera hearing, if there is to be one, the respondents are to file the disputed documents with the court under seal.”
kfraser@postmedia.com