Executive Summary: Key Legal and Evidentiary Issues

• The Attorney General of Canada sought to prohibit disclosure of sensitive information under section 38 of the Canada Evidence Act, citing injury to international relations.

• The disputed documents pertained to bilateral discussions and internal strategies related to the Ambassador Bridge and the Gordie Howe International Bridge.

• The Canadian Transit Company opposed the confidentiality claims, asserting the documents were crucial to its civil case in Ontario.

• The Court applied the Ribic test to determine the balance between public interest in disclosure and potential harm to international relations.

• Disclosure was permitted for some documents through redacted summaries, while full non-disclosure was upheld for others.

• No costs or damages were awarded, and the outcome reflects a judicial compromise prioritizing transparency and diplomatic sensitivity.

Facts and outcome of the case

This case involves a national security proceeding brought under section 38 of the Canada Evidence Act by the Attorney General of Canada (AGC) against the Canadian Transit Company (CTC). The AGC sought to prohibit the disclosure of information in 21 government documents provided to the CTC during a separate civil action in Ontario concerning control over the Ambassador Bridge, which connects Windsor, Ontario, and Detroit, Michigan.

The CTC and its parent company, Detroit International Bridge Company, privately own the Ambassador Bridge. They alleged that the Government of Canada was attempting to seize control of the bridge and divert traffic and toll revenues to its own competing project, the Gordie Howe International Bridge (GHIB). As part of that civil dispute, CTC claimed that Canada’s regulatory requirement that CTC demolish the historic Ambassador Bridge after constructing a replacement span (the “Demolition Condition”) was illegitimately imposed to sabotage CTC’s modernization plan in favor of the GHIB project.

The federal documents at issue included internal communications, diplomatic briefings, and strategy memos involving Canadian and U.S. officials. The AGC argued that releasing this information would be injurious to Canada’s international relations, revealing sensitive diplomatic strategies and possibly undermining trust between Canadian and U.S. governments.

The Court analyzed the matter under the three-part Ribic test: (1) whether the information is relevant to the civil proceeding, (2) whether its disclosure would be injurious to national security or international relations, and (3) whether the public interest in disclosure outweighs the public interest in non-disclosure. The Court found that most of the information was indeed relevant and that portions of it, if disclosed, would likely harm Canada’s ability to conduct foreign relations—particularly because the GHIB was still incomplete and diplomatic tensions with the U.S. persisted.

However, the Court also concluded that in some instances, the public interest in limited disclosure outweighed the potential harm. Therefore, it ordered that summaries of certain redacted information be disclosed to the CTC for use in the underlying Ontario litigation. The remainder of the redactions were upheld, especially where the content involved foreign officials' statements made in confidence or disclosed specific diplomatic strategies.

The decision represents a nuanced outcome. The AGC partially succeeded in maintaining confidentiality over the most sensitive material, while the CTC gained access to some information necessary to support its civil claims. No party was awarded costs or damages, and the judgment reflects a careful judicial effort to balance transparency in litigation with the protection of international diplomacy.