3430901 Canada Inc. v. Canada (Minister of Industry) (C.A.) [2002] 1 F.C. 421
Date: 20010829
Docket: A-824-99
A-832-99
Neutral citation: 2001 FCA 254
CORAM: STRAYER J.A.
BETWEEN:
A-824-99
THE INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE MINISTER OF INDUSTRY CANADA
Respondent
A-832-99
3430901 CANADA INC. and TELEZONE INC.
Appellants
and
THE MINISTER OF INDUSTRY CANADA
Respondent
Heard at Ottawa, Ontario, on May 29, 2001.
Judgment delivered at Ottawa, Ontario, on August 29, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STRAYER J.A.
DÉCARY J.A.
Date: 20010829
Docket: A-824-99
A-832-99
Neutral citation: 2001 FCA 254
CORAM: STRAYER J.A.
DÉCARY J.A.
EVANS J.A.
BETWEEN:
A-824-99
THE INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE MINISTER OF INDUSTRY CANADA
Respondent
A-832-99
3430901 CANADA INC. and TELEZONE INC.
Appellants
and
THE MINISTER OF INDUSTRY CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] In response to a general invitation, Telezone Inc. and its successor, 3430901 Canada Inc., ("Telezone") applied to the Minister of Industry for a licence to provide personal communications services, principally wireless telephone services. Four licences were issued, but not to Telezone.
[2] Telezone requested Industry Canada to disclose information about the decision-making process. The request was in large part refused, on the ground that the material sought was exempted from the general duty to disclose imposed by the Access to Information Act, R.S.C. 1985, c. A-1. Telezone complained to the Information Commissioner, who investigated the refusal, and recommended that most of the information and records sought by Telezone should be disclosed. After considering these recommendations, the Minister made further disclosures, but continued to withhold some of the material requested, particularly that relating to the weight assigned to the various criteria by which licence applications had been assessed.
[3] The Information Commissioner and Telezone applied to the Federal Court to review the Minister's refusal. The Trial Division Judge, Sharlow J., as she then was, dismissed the applications: (1999), 177 F.T.R. 161. The appellants have appealed from this decision.
[4] Telezone has never instituted judicial review proceedings to challenge the Minister's decision not to award it a licence and that is not a matter that is before us. Rather, these consolidated appeals arise out of the Minister's refusal to disclose records relating to the licensing process that were requested by the Commissioner and Telezone. They raise three issues of importance to the administration of the Access to Information Act and, in particular, to the scope of paragraph 21(1)(a) which exempts "advice or recommendations developed ... for a minister of the Crown" from the duty of the heads of government institutions to disclose records requested under the Act.
[5] First, were the weightings initially assigned to the criteria on which the discretionary award of the licences was based, properly characterised as "advice or recommendations", or as the factual basis of the conclusions of the officials who assessed the applications?
[6] Second, when the Minister rejected some of those weightings and directed a reassessment in the light of the weightings approved by the Minister, did those final weightings cease to be "advice or recommendations" and become, instead, the basis or reasons for the decision?
[7] Third, if the weightings were properly characterised at all material times as "advice or recommendations", was the burden of establishing that the institutional head lawfully exercised the statutory discretion to disclose them borne by the person seeking disclosure or by the head of the government institution?
[8] These reasons will be filed in both appeal files and will dispose of both appeals.
B. FACTUAL BACKGROUND
[9] In June 1995, the Minister of Industry called for applications for licences from those interested in providing public personal communications services in the 2 Ghz frequency range. The announcement stated that the Minister expected to issue as many as six licences, although he might issue fewer. Applicants were provided with information about the policy and process frameworks within which Industry Canada would make the decisions, including the objectives of the Department's spectrum and communications program which comprised some of the criteria by which applications would be assessed. Seventeen applications were received, including one from Telezone.
[10] The first stage of the decision-making process was a review of all the applications by a working group that was composed of officials from the spectrum and communications program at Industry Canada who consulted with experts from elsewhere in the Government of Canada and from the private sector. Its task was to evaluate the applications against the evaluation criteria and weightings approved by the Assistant Deputy Minister in a document dated September 14, 1995, to assign scores to the applications and to report its findings to the selection panel, including its recommendations of the applicants to whom the Minister should grant a licence.
[11] Over the course of a few days in mid-November 1995, the working group orally reported its conclusions to a second body, the selection panel, and provided it with a document containing the scores assigned to each of the applicants by the working group.
[12] The selection panel, which consisted of senior managers from the spectrum and communications program at Industry Canada, met for two days at the end of November or beginning of December, and prepared notes and memoranda for the Minister. The panel ranked the applications according to the same criteria and weightings that had been used by the working group and, based on this material, produced a spreadsheet showing the scores of the top four applicants.
[13] The Minister was given the spreadsheet early in December at a meeting with senior departmental officials; after asking to see the evaluation criteria, he directed that the terminology of some of the criteria be changed and that some of the weightings be altered. An official was asked to adjust the scores so as to reflect the new weightings. It is conceded that the changes made by the Minister to the percentages assigned to the factors in question affected the outcome. Soon after giving these instructions, the Minister announced the four successful applicants, who did not include Telezone.
[14] Dissatisfied with the decision not to award it a licence, Telezone commenced a letter-writing campaign and contacted several officials of Industry Canada. In January 1996, it made a request under the Access to Information Act for the disclosure of records relating to the award of the licences.
[15] The request was handled by Mr. Pierre Trottier, the Co-ordinator of the Access to Information and Privacy ("ATIP") office of Industry Canada, and by Ms. Micheline Payant, a senior advisor in that office. Mr. Trottier had been delegated the power to exercise any statutory discretion vested in the Minister to disclose records falling within an exemption. In March 1997, some fourteen months after Telezone's request, Industry Canada released portions of the requested records, but continued to withhold others.
[16] Following a complaint by Telezone, the Information Commissioner investigated the refusal and, after receiving written representations from the complainant and the Department, issued a report to the Deputy Minister in November 1997. The report upheld the complaint in part and recommended that the Department should exercise its statutory discretion to disclose more of the material that fell within the exemptions.
[17] As a result, the Department released more information in December 1997, and in February and March 1998. However, it still did not release all the information recommended by the Information Commissioner. After receiving the Information Commissioner's report in February 1998, Telezone authorized the Commissioner to institute a proceeding for judicial review of the Department's refusal to disclose all the records that it had requested.
C. DECISION OF THE TRIAL DIVISION
[18] The Applications Judge reviewed on a standard of correctness the Minister's claim that the disputed records were exempted from disclosure either as "advice or recommendations developed by or for a government institution or a minister of the Crown", or as "an account of consultations or deliberations involving officers or employees of a government institution or a minister of the Crown" within the meaning of paragraphs 21(1)(a) and (b). After examining the documents, she held that Industry Canada had correctly concluded that the documents fell within these exemptions.
[19] The Judge further held that the applicants had the burden of proving that the Minister had unlawfully exercised his discretion not to disclose the exempted records. However, the Judge considered the propriety of the Minister's exercise of discretion on the basis of all the material in the record on this issue, including hearsay evidence that came into the record through the Commissioner. She concluded that the evidence was sufficient to justify the exercise of the Minister's discretion not to disclose.
D. LEGISLATIVE FRAMEWORK
Access to Information Act, R.S.C. 1985, c. A-1
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2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government. |
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif. |
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4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person ... has a right to and shall, on request, be given access to any record under the control of a government institution. |
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande_ ... |
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21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains (a) advice or recommendations developed by or for a government institution or a minister of the Crown, ...
if the record came into existence less than twenty years prior to the request. |
21. (1) Le responsable d'une institution fédérale peut refuser la communication de documents datés de moins de vingt ans lors de la demande et contenant_: a) des avis ou recommandations élaborés par ou pour une institution fédérale ou un ministre;
...
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(2) Subsection (1) does not apply in respect of a record that contains (a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or |
(2) Le paragraphe (1) ne s'applique pas aux documents contenant_: a) le compte rendu ou l'exposé des motifs d'une décision qui est prise dans l'exercice d'un pouvoir discrétionnaire ou rendue dans l'exercice d'une fonction judiciaire ou quasi judiciaire et qui touche les droits d'une personne; |
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25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. |
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux. |
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41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter ... |
41. La personne qui s'est vu refuser communication totale ou partielle d'un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l'information peut, ... exercer un recours en révision de la décision de refus devant la Cour ... |
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42. (1) The Information Commissioner may (a) apply to the Court,... for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record; |
42. (1) Le Commissaire à l'information a qualité pour_: a) exercer lui-même, à l'issue de son enquête ... le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document; |
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48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned. |
48. Dans les procédures découlant des recours prévus aux articles 41 ou 42, la charge d'établir le bien-fondé du refus de communication totale ou partielle d'un document incombe à l'institution fédérale concernée. |
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49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate. |
49. La Cour, dans les cas où elle conclut au bon droit de la personne qui a exercé un recours en révision d'une décision de refus de communication totale ou partielle d'un document fondée sur des dispositions de la présente loi autres que celles mentionnées à l'article 50, ordonne, aux conditions qu'elle juge indiquées, au responsable de l'institution fédérale dont relève le document en litige d'en donner à cette personne communication totale ou partielle; la Cour rend une autre ordonnance si elle l'estime indiqué. |
Radiocommunication Act, R.S.C. 1985, c. R-2
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5. (1) Subject to any regulations made under section 6, the Minister may, taking into account all matters that the Minister considers relevant for ensuring the orderly establishment or modification of radio stations and the orderly development and efficient operation of radiocommunication in Canada, (a) issue
...
(i.1) spectrum licences in respect of the utilization of specified radio frequencies within a defined geographic area, ... |
5. (1) Sous réserve de tout règlement pris en application de l'article 6, le ministre peut, compte tenu des questions qu'il juge pertinentes afin d'assurer la constitution ou les modifications ordonnées de stations de radiocommunication ainsi que le développement ordonné et l'exploitation efficace de la radiocommunication au Canada_: a) délivrer et assortir de conditions_:
...
(i.1) les licences de spectre à l'égard de l'utilisation de fréquences de radio-communication définies dans une zone géographique déterminée, ... ... |
E. ANALYSIS
[20] In the Court below, Telezone made various complaints about the manner in which Industry Canada had handled its access request. The Judge did not regard these complaints as relevant to any of the issues before her. I agree and need say no more about them.
[21] By the time that the appeal was heard, the appellants had reduced the number of documents that they were requesting. The records or portions of the records that the Information Commissioner sought concern: (i) the weighting percentages attributed to the evaluation criteria used by the working group in the initial evaluation of the licence applications; (ii) the weighting percentages attributed to the final evaluation criteria used by the Department to rank and select the successful applicants; and (iii) portions of four other documents identifying for the Minister the policy options available to him. Telezone's list was substantially longer, but largely focussed on the methods of evaluating the licence applications and the scores assigned for the various criteria.
[22] On the other side, counsel for the Minister was able to narrow the issues by advising the Court that he intended to justify the refusals by relying only on paragraph 21(1)(a).
Issue 1: Interpreting the Access to Information Act
[23] The appellants argue that the Applications Judge erred by failing to follow the approach to the interpretation of the Act that has been established in the jurisprudence of both this Court and the Supreme Court of Canada. In particular, they say, the Judge did not frame her analysis by reference to the two fundamental principles applicable to the interpretation of the Access to Information Act: the right of public access to information under the control of government institutions should be construed broadly in light of the statutory purpose set out in subsection 2(1) and, correspondingly, the exceptions should be given as narrow a meaning as is consistent with their purpose and the statutory language in which they are expressed.
[24] In my opinion, it is clear from paragraph 44 of her reasons that the Judge did not err in law by overlooking the need to interpret statutory exceptions in light of both the purpose of the Act, and the countervailing values that underlie the exceptions relied on, especially, in regard to paragraph 21(1)(a), the preservation of a full and frank flow of interchanges among public officials participating in the decision-making process. However, given the importance of the interpretative framework to the interpretation of specific provisions in the Act, it is appropriate to refer briefly here to some pertinent judicial observations.
[25] First, in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 62, La Forest J. articulated the constitutional nature of the Act when he said:
Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to "any record under the control of a government institution" (s. 4(1)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.
[26] Second, in Canada Post Corp. v. Canada (Minister of Public Works), [1995] 2 F.C. 110, at 128 (C.A.), Létourneau J.A. said that it was the duty of the courts to give the same kind of "liberal and purposive construction" to the interpretation of the public right to access that they give to statutory rights to be free from discrimination. Hence, he added (at page 129), relying also on the notwithstanding clause contained in subsection 4(1), which gives the Act priority over any conflicting legislation:
... Parliament intended the Act to apply liberally and broadly with the citizen's right of access being denied only in limited and specific exceptions. (Emphasis added)
[27] Third, addressing the interpretation of the exceptions to the general right of disclosure, McDonald J.A. said in Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430, at paragraph 24 (C.A.):
It is important to emphasize that this does not mean that the Court is to redraft the exemptions found in the Act in order to create more narrow exemptions. A court must always work within the language it has been given. If the meaning is plain, it is not for this Court, or any other court, to alter it. Where, however, there is ambiguity within a section, that is, it is open to two interpretations (as paragraph 16(1)(c) is here), then this Court must, given the presence of section 2, choose the interpretation that infringes on the public's stated right to access to information contained in section 4 of the Act the least.
Issue 2: Standard of review
(i) "advice or recommendations": interpretation and application
[28] Counsel for the Minister argued that the Judge erred in holding that the Minister's interpretation of the scope of a statutory exemption to the duty to disclose was reviewable on a standard of correctness. He noted that the Judge had selected the standard by consulting a narrower range of factors than those prescribed in the pragmatic or functional analysis elaborated by the Supreme Court of Canada, especially in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[29] More recently, the Court has confirmed the parameters of the inquiry into the appropriate standard of review approved in these cases, observing also, however, that Pushpanathan, supra, should be understood as a synopsis, not a modification, of its previous jurisprudence: Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37, (2001), 199 D.L.R. (4th) 577, at paragraph 48; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, (2001), 199 D.L.R. (4th) 598, at paragraphs 23-33.
[30] Counsel argued that the Judge had erred by relying for her conclusion almost exclusively on Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D). I had held in that case (at paragraphs 12-13) that correctness was the applicable standard of review because, unlike the situation under many provincial access to information statutes, the administrative action typically reviewed in the federal scheme is the refusal of a head of a government institution to disclose a document, not of the Information Commissioner, an officer of Parliament who is independent of the Executive. Heads of government institutions are not disinterested in the interpretation and application of the Access to Information Act and are likely to have an institutional predisposition towards restricting the public right of access and construing the exemptions broadly.
[31] However, the somewhat meandering trail of the pragmatic or functional analysis leads, in this case, to exactly the same destination as the shorter path taken in Canadian Council of Christian Charities, supra, which was explicitly directed towards the purposes of the statute and the nature of the decision-maker.
[32] As to the factors of the pragmatic or functional analysis not expressly considered in the Court below, I note, first, that the Act contains neither a privative clause protecting from review, nor a right of appeal from, a refusal of an institutional head to disclose information in response to a request. The absence of the former has been said to be an indication that Parliament intended the Court to retain its "general supervisory jurisdiction" (Canada (Attorney General ) v. Mossop, [1993] 1 S.C.R. 554, at 583).
[33] It could, of course, equally be said that the absence of a statutory right of appeal is indicative of a deferential standard of review, just as a glass filled to half its capacity may be described as either half-full or half-empty. However, in subsection 2(1), the purpose clause of the Access to Information Act, Parliament has expressly provided for a review of refusals of access "independently of government." I take this to refer both to review by the Information Commissioner, and by the Court under section 41.
[34] Hence, the absence of a privative clause, the explicit provision for the Court to review refusals, and the importance ascribed by the Act to independent review, are indicative of a Parliamentary intention that the Court should review at the correctness end of the spectrum questions of law decided by the Minister.
[35] Second, turning to the expertise of the decision-maker, I acknowledge that, like other institutional heads handling access requests, the Minister of Industry has available the experience of the members of a specialized departmental unit who regularly have to interpret and apply the Access to Information Act in the course of their work. Further, the Minister and his advisers are well placed to assess whether, if government is to operate effectively to advance the public interest, it is necessary for the effective working of the internal processes of government to maintain a measure of secrecy for communications between officials, and between officials and the Minister, in the course of developing policy.
[36] However, this expertise must be balanced against the primary purpose of the Act, namely, the provision of a public right of access to government records, albeit one that is limited by other considerations, and the creation of mechanisms for independent review as the means by which the statutory purpose is pursued. The key to interpreting the scope of the right of access and of the exemptions is to be found in striking an appropriate balance between the competing legislative policies that underlie them, a function for which a body independent of the Executive is better suited than the institution resisting the request for access. As counsel for the Information Commissioner pithily put it in the course of argument, if the Court were to confine its duty under section 41 to review ministerial refusals of access requests by deferring to ministerial interpretations and applications of the Act, it would, in effect, be putting the fox in charge of guarding the henhouse.
[37] Third, I am satisfied that the nature of the questions to be decided in this case points to a standard of review at the correctness end of the spectrum. The principal argument made by the appellants in attacking the Minister's refusal to disclose was that, in light of the interpretative framework within which this legislation should be construed, the Minister had interpreted the words "advice or recommendations" in a way that failed to give an appropriately narrow scope to the exemption in paragraph 21(1)(a). In addition, it was said, the affidavit sworn by an official who had no firsthand knowledge of the handling of Telezone's access request was insufficient to discharge the burden on the Minister to demonstrate that he had lawfully exercised his discretion not to disclose material falling within the exemption.
[38] The meaning of the words "advice or recommendations" is a question of statutory interpretation that turns on an understanding of the fundamental principles underlying the statutory scheme. The same is true, although to a somewhat lesser degree, of the question of whether the appellants or the Minister bear the burden of proving the propriety of the Minister's exercise of discretion not to disclose records exempted by paragraph 21(1)(a). These questions respecting the operation of the statute seem to me to possess a sufficient degree of generality to indicate that, in the absence of factors pointing to a different conclusion, correctness is the appropriate standard of review, especially given that the decision under review is that of a protagonist, not of an independent agency.
[39] I accept that determining whether documents, or portions of documents, fall within the exemption, properly interpreted, whether severability has been duly considered, and whether the evidence was sufficient to discharge the Minister's burden of proof, are specific to this case and contain factual elements. Nonetheless, when all the other aspects of the pragmatic or functional analysis are considered, particularly the importance of an independent review, I am not satisfied that the nature of these questions is either sufficiently within the expertise of the Minister, or so outside that of the reviewing Court, as to indicate a deferential standard of review, particularly given the general importance of the right to which they relate.
[40] I need only add that the fact that courts have applied a deferential standard of review under Ontario's freedom of information statute (see, for example, John Doe v. Ontario (Information and Privacy Commissioner) (1993), 106 D.L.R. (4th) 140 (Ont. Div. Ct.)) has little relevance, if any, to the federal access statute because, as already noted, under the Ontario Act, the decisions being reviewed are those of the independent Information Commissioner, not of the institutional head. Indeed, even under Ontario's statutory scheme, the courts have sometimes subjected the Commissioner's interpretation of the Act to review for correctness: see, for example, Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.).
[41] Fourth, for the reasons already canvassed, the purpose of the Access to Information Act, and the importance of an independent scrutiny of access refusals identified in subsection 2(1) for furthering the statutory purpose, favour the Court's reviewing the Minister's interpretation and application of the Act on a standard of correctness. Indeed, by virtue of the independence, legal powers, process and expertise of the Information Commissioner, the conclusions of law, and of law and fact, on which he bases his reports and recommendations have a greater claim to judicial deference than those of a minister.
[42] Nonetheless, while the Court will consider the Commissioner's reports with care, the Court is entitled to differ from the Commissioner on questions of law, and of mixed law and fact, without having first to satisfy itself that the Commissioner's conclusion was unreasonable: the Court is charged with reviewing refusals by heads of government institutions, not the Commissioner's recommendations.
(ii) exercise of discretion
[43] Another question to be decided concerns the exercise of the Minister's statutory discretion. Since the Access to Information Act leaves the disclosure of records falling within paragraph 21(1)(a) to the discretion of the Minister, and imposes no express limitations on its exercise, it is not for the Court to substitute its view for that of the Minister on how the discretion should be exercised: Canadian Council of Christian Charities, supra, at paragraphs 18-19; and, on analogous provisions under the Privacy Act, R.S.C. 1985, c. P-21, see Kelly v. Canada (Solicitor General) (1992), 53 F.T.R 147, at 149 (per Strayer J.), approved in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paragraph 110 (per La Forest J.).
[44] However, in light of Baker, supra, the grounds on which the legality of the Minister's discretionary decision not to disclose records is reviewable must be considered to have been expanded from those set out in Dagg, supra, at paragraph 111, where they were limited to bad faith, breach of natural justice and the relevancy of the considerations relied on by the decision-maker.
[45] In my opinion, the Minister's exercise of discretion under subsection 21(1)(a) is now also subject to review for unreasonableness. Further, "unreasonableness simpliciter", not patent unreasonableness, is the relevant variant of rationality review applicable to the discretionary decision in this case. The expertise available to the Minister in making the decision, and his accountability to Parliament, are outweighed by the importance afforded by the Act to the right affected, namely, the public right of access to government records secured by an independent review of refusals to disclose, and by the case-specific nature of the policy decision made.
[46] In my opinion, this case is readily distinguishable from Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, where the Court held that the exercise by a municipality of a power to order the removal of a nuisance could only be set aside for irrationality if shown to have beenpatently unreasonable, and not merely unreasonable simpliciter. Thus, the Court observed (at paragraph 35) that, in making this discretionary decision, councillors would have taken into account local circumstances and that, since they were better placed in this regard than the Court, their decision should be afforded maximum curial deference. The fact that municipal legislation commonly precludes the review of bylaws and resolutions for unreasonableness was another indication to the Court (at paragraph 39) that the legislature should be understood to have limited rationality review to review for patent unreasonableness. Finally, the property rights affected by a decision to order the removal of a pile of soil hardly rise to the same level of quasi-constitutional significance as the limitation imposed on the right of public access to government information by a discretionary refusal to disclose.
(iii) conclusions
[47] In reviewing the refusal of a head of a government institution to disclose a record, the Court must determine on a standard of correctness whether the record requested falls within an exemption. However, when the Act confers on the head of a government institution a discretion to refuse to disclose an exempted record, the lawfulness of its exercise is reviewed on the grounds normally available in administrative law for the review of administrative discretion, including unreasonableness. I would only note that these conclusions are identical to those of La Forest J. in Dagg, supra, without conducting a functional or pragmatic analysis.
Issue 3: "Advice or recommendations"
[48] The appellants argue that the Judge erred in law in treating certain of the records in question as containing "advice" for the purpose of paragraph 21(1)(a). It will be convenient to deal separately with the different categories of document that are alleged to contain advice. However, counsel for the appellants submitted that, with respect to all the documents, the Court should ascribe a meaning to "advice" that is consistent with the statutory context in which the word is used.
[49] In other words, because "advice" appears in a paragraph limiting the right of access to government records, it should be given a narrow meaning in accordance with the provision in subsection 2(1) that exemptions from the right of access "should be limited and specific". It is irrelevant that, in other contexts, including every-day speech, "advice" is capable of a broader connotation.
[50] I certainly have no difficulty with this proposition as a matter of general principle. However, an examination of the statutory context in which the word "advice" is used is not altogether helpful to the appellants. For example, by exempting "advice or recommendations" from disclosure, Parliament must be taken to have intended the former to have a broader meaning than the latter, otherwise it would be redundant.
[51] In addition, the exemption must be interpreted in light of its purposes, namely, removing impediments to the free and frank flow of communications within government departments, and ensuring that the decision-making process is not subject to the kind of intense outside scrutiny that would undermine the ability of government to discharge its essential functions: Canadian Council of Christian Charities, supra, at paragraphs 30-32.
[52] On the basis of these considerations, I would include within the word "advice", an expression of opinion on policy-related matters, but exclude information of a largely factual nature, even though the verb "advise" is sometimes used in ordinary speech in respect of a communication that is neither normative, nor in the nature of an opinion. Thus, a police officer may say that she advised the suspect of his legal rights or, when the person in custody asked her the time, the officer advised him that it was two o'clock.
[53] I turn now to consider the arguments made in connection with the different categories of document that the Minister says are exempt, in whole or in part, because they contain "advice or recommendations" within the meaning of paragraph 21(1)(a).
(i) weightings of the working group
[54] Counsel for the appellants submitted that the records containing the percentage weightings ascribed by the working group to the various criteria for evaluating the licence applications were no more than a factual account of how the group had gone about its task, and that facts are not advice.
[55] As I have already indicated, I accept that the benefit of paragraph 21(1)(a) should be reserved for the opinion, policy or normative elements of advice, and should not be extended to the facts on which it is based. I also accept that, whenever reasonably practicable, the factual component of advice must be severed under section 25 and disclosed, although, as the Judge observed at paragraph 58 of her reasons, advice and facts may be so intertwined as to preclude this.
[56] However, it is in my view untenable to characterise as essentially factual the documents emanating from members of the working group that deal with the percentage weightings. The reason for the group's informing the selection panel, and ultimately the Minister, of the bases of their evaluations was to suggest to the Minister the appropriate rankings of the applications, and not just to give an account of how they had gone about their work. The percentages represented the working group's view, approved by the Assistant Deputy Minister, of the relative importance of the various government objectives being pursued through the allocation of the licences.
[57] In my opinion, the content of the documents is predominantly normative, rather than merely factual, and thus brings them within the rationales underlying paragraph 21(1)(a) for exempting records from disclosure. This conclusion is not affected by the fact that the working group was implicitly, rather than expressly, advising the Minister of the relative importance that should be attached to the various evaluative factors in making the ultimate decision.
[58] Accordingly, the Minister was correct to treat as falling within paragraph 21(1)(a) any records or parts of records emanating from the working group and selection panel that contain the percentages ascribed by the working group to the various evaluative criteria, the descriptions of the criteria that have not been disclosed by the Minister, and the numerical scoring of Telezone's application.
(ii) uncommunicated advice
[59] Counsel for Telezone also argued that, at least for the purpose of this Act, the content of a record could only constitute advice if it was communicated for the purpose of advising another person. The Minister was therefore wrong to exempt under paragraph 21(1)(a) documents containing personal notes made by a member of the working group in preparation for the meeting of the group and working papers prepared by members of the group prior to the meeting, which, if communicated at all, were communicated only to other members of the group for the purpose of providing an update on the progress of the group's evaluation of the applications.
[60] I do not accept this argument. Paragraph 21(1)(a) speaks of advice "developed by or for a government institution or a minister of the Crown". It follows, in my view, that a record otherwise falling within the category of "advice", still contains advice even if it was only intended to assist participants in the decision-making process to formulate the advice or recommendations that they would ultimately give to the final decision-maker. These documents form an integral part of the process by which policy advice was developed within Industry Canada on the selection of the successful applicants for licences.
(iii) inconclusive advice
[61] Other records sought by Telezone identify for the Minister the most important aspects of the licence applications, inform the Minister of issues that require a decision, and set out the options available to him in making a decision, together with the arguments for and against adopting them. It was argued that a public official is not giving "advice" when she simply identifies a matter for decision and sets out the options, without reaching a conclusion as to how the matter should be decided or which of the options should be selected.
[62] I do not agree. First, in insisting that advice must urge a specific course of action, counsel seems to be equating "advice" with "recommendations", even though, by using both words in paragraph 21(1)(a), Parliament clearly indicated that records that do not contain "recommendations" may still fall within the exemption.
[63] Second, a memorandum to the Minister stating that something needs to be decided, identifying the most salient aspects of an application, or presenting a range of policy options on an issue, implicitly contains the writer's view of what the Minister should do, how the Minister should view a matter, or what are the parameters within which a decision should be made. All are normative in nature and are an integral part of an institutional decision-making process. They cannot be characterized as merely informing the Minister of matters that are largely factual in nature. Nor do I think that the use in the French text of paragraph 21(1)(a) of the word "avis", which is generally translated into English as "opinion", conveys a narrower meaning in this context than the word "advice" in the English version.
[64] Hence, the records sought fall within the mischiefs at which paragraph 21(1)(a) are aimed, namely the danger that disclosure would endanger the unimpeded flow of discussion within government that is essential to effective decision-making, and would erode the ability of government to govern.
(iv) final weightings
[65] The appellants also argued that "advice" for the purpose of paragraph 21(1)(a) does not include the content of a document prepared by an official after the Minister had instructed him to recalculate the scores and rankings of the applicants by using percentage weightings for some of the evaluative criteria different from those used by the selection panel. The argument was that, by accepting the rankings produced by the official and allocating the licences accordingly, the Minister converted what may previously have been "advice" into the basis of the decision. Hence, an applicant, such as Telezone, should have access to the record, or to the relevant part of it, containing its final scores on the various evaluative criteria, along with the percentage weightings that were finally ascribed to them.
[66] The Applications Judge rejected this argument at paragraph 79 of her reasons, on the ground that the principal document containing this information, a memorandum dated December 15, 1995 from the Assistant Deputy Minister to the Minister, was, when considered in its entirety, "intended to convey advice and recommendations to the Minister" on the allocation of licences. She did not accept that the nature of the document changed as a result of the Minister's adopting it as the basis of his decision.
[67] I agree. Were it otherwise, it would be inferred from a minister's refusal to disclose the document on which she or he had based a decision that it was not in accordance with official advice. This is precisely the kind of mischief at which paragraph 21(1)(a) is aimed.
[68] In an attempt to recharacterise the content of the documents, counsel relied on paragraph 21(2)(a). This excludes from the exemptions in subsection (1) "an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power ... and that affects the rights of a person". Hence, it was argued, Telezone is entitled to access to any records sought that can be characterised as an account or statement of the reasons for the exercise of the Minister's allocation of the licences within the meaning of paragraph 21(2)(a).
[69] In my opinion, this argument cannot succeed. Paragraph 21(2)(a) only applies when a decision has been made that affects the rights of a person. As an applicant for a licence, Telezone no doubt had an interest in the decision to award licences that might well have entitled it to the benefit of procedural fairness, an entitlement that is no longer confined to those whose legal rights are adversely affected by administrative action: Cardinal v. Director of Kent Institution, [1986] 2 S.C.R. 643, 653. Telezone's interest in the matter may also have been sufficient to have conferred standing on it to challenge the legality of the Minister's decision. However, this appeal does not arise from an application by Telezone for judicial review of the Minister's decision to award licences to other applicants.
[70] I cannot interpret the word "rights" in paragraph 21(2)(a) as meaning anything other than "legal rights". And, since Telezone had no legal right to be awarded a discretionary licence, and it cannot be said that it had any other rights that were adversely affected by the decision, paragraph 21(2)(a) does not remove from the ambit of paragraph 21(1)(a) a record otherwise exempt from disclosure because it contains "advice".
[71] In paragraph 21(2)(a) Parliament has expressly provided that a record otherwise falling within paragraph 21(1)(a) must be disclosed if it contains a statement of reasons for a decision that affects the rights of a person. It is not open to the courts to expand the scope of paragraph 21(2)(a) by applying it to a document that contains a statement of the reasons for a discretionary decision that does not affect the rights of a person, even though, as a disappointed applicant for a discretionary licence, the person may be regarded as sufficiently adversely affected for the purpose of the duty of fairness or the law of standing.
[72] Indeed, the inclusion of paragraph 21(2)(a) in the statutory scheme lends support to the Minister's contention that a document containing advice when created does not cease to contain advice once it is accepted by a decision-maker as the basis of a decision. Statements of reasons for decisions would only have to be exempted from the scope of paragraph 21(1)(a) if they otherwise would have fallen within that paragraph because they constituted "advice".
[73] In my view, the appellants can only succeed by establishing that the content of the document containing the final weightings, the undisclosed evaluation criteria, and the applicants' scores, never brought it within paragraph 21(1)(a). The documents in dispute in this case all emanated from the official who was charged with the responsibility for carrying out the Minister's instructions by reworking the scores on the basis of the amended weightings and by revising the terminology used to describe some of the criteria. Since the information in these documents was prepared for the purpose of assisting the Minister to make a decision, it was undoubtedly "advice".
[74] The situation might well have been different if, after the receipt of the official's report, a separate document had been created setting out the bases of the Minister's decision, including the weightings of the various criteria and the scores of the applicants. Even if a separate document containing the decision and its bases had been entirely based on advice given by an official, it might well not have been "advice" within the meaning of paragraph 21(1)(a), so that the limitation on the scope of paragraph 21(2)(a) would have been irrelevant.
[75] In my opinion, the relaxed view taken in Baker v. Canada (Minister of Citizenship and Immigation), [1999] 2 S.C.R. 817 toward what can constitute reasons for an administrative decision does not assist the appellants. The problem in the present case is not whether the document in question contained "reasons" for the Minister's decision to grant licences, but whether that decision "affected the rights of a person" for the purpose of paragraph 21(2)(a), or the content of the document ever brought it within subsection 21(1).
[76] Accordingly, I have concluded that the Applications Judge was correct to hold that paragraph 21(1)(a) exempted from disclosure the documents containing the final weightings, the undisclosed nomenclature of the criteria and Telezone's scores. Further, having examined the documents containing information exempted by paragraph 21(1)(a), I am satisfied that, in not severing any of the documents in question, the Applications Judge committed no error that would warrant the intervention of this Court.
Issue 4: Exercise of discretion and burden of proof
[77] The head of a government institution has a discretion to disclose records exempted from the right of access by paragraph 21(1)(a). The appellants argue that the Minister bears the burden of proving that the discretion was exercised in accordance with law. They allege that the Minister's discretion had been exercised improperly because no account appears to have been taken of the purposes of the Act and no attempt made to balance the harm likely to be caused to the public right to disclosure, against that likely to be caused to the effective operation of government as a result of disclosure.
[78] The Minister, on the other hand, takes the position that the burden is on the appellants to demonstrate that the discretion was exercised unlawfully. In any event, counsel submitted, material in the record shows that no impropriety occurred.
[79] In support of their contention that the Minister has the burden of proving that the discretion was exercised lawfully, the appellants rely on section 48 of the Access to Information Act. This provides that, in review proceedings such as these, the head of the government institution bears the burden of proving that she or he "is authorized to refuse to disclose" a record requested under the Act.
[80] It is agreed that section 48 places on the head of the government institution the burden of proving that a record is within an exemption, because, for example, it contains advice or recommendations for the purpose of paragraph 21(1)(a). The issue in dispute is whether the head of the government institution also has the burden of proving that the decision not to disclose the exempted documents was made lawfully in the exercise of the statutory discretion.
[81] Counsel for the Commissioner referred us to statements in Rubin v. Canada (Canada Mortgage and Housing Corporation), [1989] 1 F.C. 265, at 276-77 (C.A.) which, he submitted, support him on this issue. However, I am not satisfied that they were really directed to the point that has arisen here. Moreover, the usefulness of Rubin, supra, on this issue is weakened by the fact that it was decided before Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54 (F.C.T.D.); aff'd. (1993), 13 Admin, L.R (2d) 304 (F.C.A.) and Dagg, supra. In those cases it was held that, in determining whether a document had properly been withheld pursuant to a permissive exemption, the reviewing Court must answer two distinct questions: did the record fall within the exemption and, if it did, was the discretion to disclose it lawfully exercised?
[82] The opinion of La Forest J. in Dagg, supra, has an immediate relevance to the location of the burden of proof. The principal issue in that case was whether certain records contained "personal information" as defined by section 3 of the Privacy Act, R.S.C. 1985, c P-21, and, as such, were exempt from disclosure by virtue of subsection 19(1) of the Access to Information Act. Subsection 19(2) sets out the circumstances in which the head of a government institution may disclose a record containing personal information, including information that may be disclosed pursuant to section 8 of the Privacy Act. Subparagraph 8(2)(m)(i) of that Act provides that personal information may be disclosed where, in the opinion of the head of a government institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from disclosure.
[83] Writing for the majority of the Court, Cory J. held that the information in the requested documents was not "personal" and ordered disclosure of the disputed documents. Having reached the opposite conclusion, La Forest J. proceeded to consider whether the Minister had lawfully exercised the discretion contained in subparagraph 8(2)(m)(i) of the Privacy Act.
[84] La Forest J.'s principal conclusion on this aspect of the case, with which Cory J. agreed "[i]n general" (paragraph 16), was that, while it was the function of the reviewing Court to determine for itself whether the information contained in the requested document was "personal information" within the meaning of section 3 of the Privacy Act, the Court was not also to review de novo the exercise of the Minister's discretion not to disclose a document containing personal information. Since he was satisfied that the Minister had weighed the conflicting interests, La Forest J. held that there were no grounds on which the Court could impugn the discretionary refusal to disclose.
[85] La Forest J. interpreted section 49 of the Access to Information Act as expressly mandating the Court to undertake a de novo review of whether the document fell within the exempted class. This provision empowers the reviewing Court to order the disclosure of a record or part of a record, or to make any other order that it deems appropriate, "if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof ... ". However, La Forest J. stated (at paragraph 107) that section 49 did not apply to the review of the Minister's discretion to disclose exempted documents:
Section 49 of the Access to Information Act, then, only permits the court to overturn the decision of the head of the institution where that person is "not authorized" to withhold a record. Where, as in the present case, the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in section 49 is exhausted.
[86] La Forest J. also considered whether the Minister had erred in law when he replied to the appellant's request to disclose the documents in the exercise of his discretion by saying: "I do not believe that you have demonstrated that if there were any public interest that it clearly overrides the individual's right to privacy." In concluding that section 48 was inapplicable to the Minister's exercise of discretion in response to a request to disclose, La Forest J. said (at paragraph 115):
That provision states that the head of government institution has the burden of establishing that he or she is "authorized to refuse" to disclose a requested record. As I have discussed in relation to s. 49 of the Act, the Minister satisfied this burden when he showed that the information in the sign-in-logs constituted "personal information". Once that fact is established, the Minister's decision to refuse to disclose pursuant to subparagraph 8(2)(m)(i) of the Privacy Act may only be reviewed on the basis that it constituted an abuse of discretion. The Minister did not have a "burden" to show that his decision was correct because that decision is not reviewable by a court on the correctness standard.
[87] On the basis of the material before him, La Forest J. was satisfied that the Minister had discharged his statutory duty by carefully weighing the conflicting interests. He concluded that, in essence, the appellant's complaint was that the Minister had failed to give reasons for his decision not to disclose, but that since the absence of detailed reasons "did not work any unfairness upon the appellant" (paragraph 114), judicial intervention on this ground was not warranted.
[88] Because he had held that the documents did not fall within the exemption for personal information, Cory J. did not have to address the legality of the Minister's exercise of discretion. However, he said (at paragraph 18) that the terms in which the Minister had replied to the request for disclosure could have led to the conclusion that he had "committed an error in principle resulting in a loss of jurisdiction" by imposing an onus on the requester to demonstrate that the public interest in disclosure outweighed that in privacy. He observed that section 8 of the Privacy Act did not mention onus, but simply required the Minister to be satisfied that the public interest in disclosure outweighed the privacy interest.
[89] In my opinion, it is an inescapable conclusion from the reasoning of La Forest J. in Dagg, supra, with which the majority agreed, that, when in review proceedings instituted under section 41 or 42 the Minister has discharged the burden of establishing that a document falls within an exemption, the proceeding must be dismissed unless the applicant satisfies the Court that the Minister failed lawfully to exercise the discretion to refuse to disclose an exempted document. This is because La Forest J. stated that the words in section 49, "is not authorized to refuse to disclose", refer only to the question of whether a document falls within an exemption, and not also to whether the head of the government institution lawfully exercised the discretion to withhold.
[90] I recognise that the meaning of words can vary according to the context in which they are used, and that while section 49 concerns the standard of review, section 48 deals with the different matter of the burden of proof in review proceedings. Nonetheless, I cannot conclude that the very same phrase, "authorized to refuse to disclose", in adjacent sections of the same Act, both dealing with aspects of the review process, were intended by Parliament to have different meanings. Indeed, La Forest J. clearly treated the sections as similar, in that he relied on his interpretation of "not authorized to refuse to disclose"in section 49 to support his conclusion that section 48 did not reverse the onus of proof and require the Minister to satisfy himself that the interest in privacy outweighed that in the disclosure of an exempt document when he was requested to disclose it in the exercise of his discretion.
[91] In contrast, Cory J. thought that the Minister could have erred if he had imposed the burden of proof on the person requesting disclosure to demonstrate that the public interest in disclosure outweighs the privacy interest. However, this was not because he took a different view of section 48 from that advanced by La Forest J., but because, in his opinion, section 8 of the Privacy Act did not address the burden of proof issue, but simply required the Minister to be satisfied that the interest in disclosure outweighed that in privacy before exercising his discretion to disclose. Hence, I do not regard Cory J. as disagreeing with La Forest J. on any issue pertinent to the disposition of this appeal.
[92] Counsel for the Commissioner relied on the more recent decision by this Court in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.) to support his position on the burden of proof. He argued that in Ruby, supra, the Court decided that a person challenging a discretionary refusal to disclose personal information about the requester "cannot be made to assume an evidential burden of proof" (paragraph 38). Further, the Court stated (at paragraph 39), such a person "by definition, questions the validity of the exercise of discretion by that institution and nothing more is required from him or her."
[93] In reasons concurred in by Sexton J.A., Létourneau and Robertson JJ.A. explained (at paragraph 30) why the normal rule imposing the burden of proof on the party seeking judicial review did not apply to the case before them:
However, the situation is different in matters of access to confidential information since section 47 of the Act puts on the head of a government institution the burden of proving an exemption. We shall come back to the scope of this burden later on. Suffice it to say for the time being that, in our view, it encompasses both the burden of proving that the conditions of the exemptions are met and that the discretion conferred on the head of a government institution was properly exercised.
Sections 47 and 48 of the Privacy Act are not materially different from sections 48 and 49 of the Access to Information Act.
[94] After noting that the appellant in that case had not been told whether the personal information banks to which he had requested access contained information about him, the Court stated (at paragraph 36) the rationale for its conclusion on the burden of proof:
Even if a person is informed that a bank does contain personal information about him or her, how can that person, who does not know what the information is, meet an evidential burden of questioning the exercise of discretion by the government authority who refuses access to it?
[95] In my opinion, however, the statements in Ruby, supra, on the burden of proof must be read in light of what the Court regarded (at paragraph 38) as the "peculiar circumstances" of the case, namely,
... where accessibility to personal information is the rule and confidentiality the exception, where an applicant has no knowledge of the personal information withheld, no access to the record before the court and no adequate means of verifying how the discretion to refuse disclosure was exercised by the authorities, and where section 47 of the [Privacy] Act clearly puts on the head of a government institution the burden of establishing that it was authorized to refuse to disclose the personal information requested and, therefore, that it properly exercised its discretion in respect of a specific exemption it invoked ...
[96] Some of these circumstances are not present in the case before us. In particular, the Commissioner and Telezone are well aware of the nature of the information about the decision-making process that Industry Canada has refused to disclose. In addition, the Commissioner and counsel for Telezone know the content of the material filed in confidence with the Court, including explanations by officials of Industry Canada of the factors considered in the exercise of the discretion to disclose. The essence of the appellants' complaint is that, in the absence of an affidavit by the Minister's delegate who decided not to disclose the requested documents, they have effectively been deprived of an opportunity to conduct a cross-examination.
[97] Moreover, after considering the approach to the exercise of the statutory discretion by heads of government institutions (at paragraphs 118-123), the Court in Ruby, supra, referred the matter back to the Trial Division because it could not determine from the Judge's decision whether the institution had attempted to balance the public interest in disclosure and privacy (at paragraphs 124-125). In our case, in contrast, it is quite clear that the Trial Division Judge found that Industry Canada had considered the exercise of discretion: the issue in dispute was whether, in so doing, the responsible officials had considered all the factors that they were obliged by law to consider.
[98] In view of La Forest J.'s reasoning in Dagg, supra, the Court in Ruby, supra, should not be taken to have intended to establish the broader proposition that, in all cases, section 47 of the Privacy Act and, by implication, section 48 of the Access to Information Act, reverse the normal burden of proof when the validity of the exercise of an administrative discretion is challenged in review proceedings by imposing it on the institutional head.
[99] Accordingly, while I do not agree with the Applications Judge's statement (at paragraph 97) that to interpret section 48 as extending to the exercise of discretion would involve circular reasoning, I agree with her conclusion that the burden of proof was on the appellants to establish that the Minister had failed to exercise according to law the statutory discretion to disclose the documents containing advice and recommendations within the meaning of paragraph 21(1)(a).
Issue 5: Was the Minister's discretion exercised lawfully?
[100] Nonetheless, I am sensitive to the concern expressed in Ruby, supra, that the Court cannot effectively exercise its statutory function of reviewing refusals to disclose information without some knowledge of the discretionary decision-making process. In my opinion, this concern can be met by imposing on the head of the government institution concerned a legal obligation to give reasons for the discretionary refusal to disclose, when reasons are requested and fairness requires that they be given.
[101] Indeed, in Dagg, supra, La Forest, J. canvassed this possibility (at paragraph 114), but concluded that, even if, in the absence of a statutory requirement, the Court could require reasons as part of the duty of fairness, "the Minister's failure to give extensive, detailed reasons for his decision did not work any unfairness upon the appellant." Of course, since Dagg, supra, was decided, the Supreme Court of Canada has held in Baker, supra, that the duty of fairness can indeed include an obligation to give reasons: as L'Heureux Dubé J. noted (at paragraph 39), an important benefit of reasons is that they
allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review.
[102] In determining whether the duty of fairness requires that reasons for decision be given, a Court must consider the significance of the interests adversely affected by the administrative decision under review and the existence of a statutory right of appeal: Baker, supra, paragraph 43. Since the right of access to information under the control of the government has been compared in importance to the quasi-constitutional statutory rights created by human rights legislation (Canada Post Corp., supra), it is certainly arguable that an institutional head is obliged to give reasons for the exercise of the discretion not to disclose when, without reasons, the Court could not effectively discharge its statutory duty to review the legality of the refusal.
[103] I am willing to assume for the purpose of this appeal, but need not decide, that Industry Canada was obliged to provide reasons for its discretionary refusal to disclose the documents requested by Telezone and the Information Commissioner. The question is whether that duty has been discharged. The answer to this question depends, in turn, on the answers to two other questions: were the documents relied on by the Minister capable of constituting reasons and, if so, were they sufficient to enable the Court to determine whether the Minister's discretion to disclose had been lawfully exercised?
(i) are there reasons for the refusal?
[104] The record does not contain an affidavit in which Mr. Trottier, the official in Industry Canada responsible for exercising the Minister's discretion with respect to the documents in dispute in this case, explained the basis of the decision. Mr. Trottier appears to have been indisposed at the times scheduled for the cross-examinations.
[105] Instead, in order to demonstrate the basis on which the discretion to refuse disclosure had been exercised, the Minister relied on documents attached as exhibits to the public and confidential affidavits of the investigator with the Office of the Information Commissioner assigned to the Telezone complaint. The public documents consist of letters written by departmental officials, including Mr. Trottier, to Telezone and to the Commissioner in the course of the investigator's inquiries into Telezone's complaint. The confidential documents are internal Industry Canada memoranda relating to Telezone's request for disclosure and to the Information Commissioner's investigation, as well as additional letters to the Commissioner.
[106] An affidavit by Mr. Trottier's successor provided background information about departmental practice on the exercise of discretion. However, because the affiant did not purport to know the basis of Mr. Trottier's refusal in this case, I have excluded her affidavit from consideration.
[107] In Baker, supra, the Court emphasised (at paragraph 44) that to require a decision-maker to provide a formal statement of reasons for administrative decisions taken outside relatively formal adjudicative contexts would be to ignore the realities of the day-to-day working of public administration. Thus, the Court in that case attributed to the decision-maker as the reasons for decision the notes of the immigration official who had recommended that he refuse the appellant's request for a humanitarian and compassionate exemption from normal immigration requirements.
[108] The formal letters in the case at bar, including those by Mr. Trottier, are not very specific about the basis on which the discretion to refuse was exercised. In my view, the key documents are the internal documents describing with some particularity why disclosure would be damaging. Perhaps the most significant of the memoranda are dated early in March 1996, some two months after Telezone requested the disclosure of documents, but before Telezone complained to the Commissioner in July. They are addressed to Mr. Trottier, and contain specific explanations and recommendations with respect to the disclosure of the requested documents, as does a position paper from Ms. Payant.
[109] In view of the flexibility of the content of the duty to provide reasons that the Court mandated in Baker, supra, I am satisfied that these materials should together be regarded as the reasons for Mr. Trottier's refusal to disclose the documents in the exercise of the Minister's discretion that had been delegated to him. Like the notes of the recommending officer in Baker, supra, the material in the case at bar was provided in the course of advising the person responsible for making the final decision.
[110] It is also important to note that disclosure was not a one-time decision, but took place over several months as Industry Canada released more documents in response to submissions from the Commissioner and to advice from various departmental officials. Hence, the fact that some of the memoranda in the record were written after the Commissioner started his investigation should not preclude them from being regarded as part of the reasons for the decision.
[111] Nor does the absence of a supporting affidavit from the authors of the memoranda prevent them from constituting reasons. It would appear that the officer's notes in Baker, supra, came before the Court as part of the decision-maker's record and were not supported by an affidavit on which the officer could be cross-examined. I would also note that the memoranda in the case at bar had been produced to the Commissioner during his investigation, and they, together with the correspondence with the appellants, were included in the common appeal book as attachments to an affidavit of one of the Commissioner's investigators. I therefore do not accept the appellants' objection that these documents are inadmissible as hearsay.
(ii) sufficiency of the reasons
[112] The question here is whether the reasons provide a sufficient explanation for the refusal to disclose so as to enable the Court to perform its reviewing function, or reveal that the Minister's discretion to withhold documents exempted under paragraph 21(1)(a) was not exercised according to law.
[113] The documents on which the Minister relies are directed generally to the harm that the writers believe was likely to flow from disclosure. It is not altogether clear whether these explanations are being put forward as a rationale for why the documents fall within exempted categories, or as the basis of the exercise of discretion to withhold exempt documents. However, on reading the documents, I am satisfied that the writers understood that there was a discretion to disclose and that their recommendations encompassed that issue.
[114] Further, when they are read as a whole and in context, the correspondence and memoranda provide a sufficiently clear account of why the officials were opposed to disclosure as to enable the appellants to understand the basis of the decision and the Court to perform its review function.
[115] I do not accept the submission of the Commissioner that the reasons must state explicitly that the Minister or his delegate considered the purposes of the Act and determined that the harm of disclosure outweighed the public interest in disclosure. In my view, this is not what Heald J. required when he stated in Rubin, supra, at page 274, that the Minister must have regard to the policy and objects of the Act. Moreover, to insist on such language as a legal requirement to the valid exercise of the discretion conferred by subsection 21(1) would be unduly formalistic and contrary to the contextual approach to the adequacy of reasons sanctioned in Baker, supra.
[116] I am prepared to infer from the materials and from the ongoing disclosures that the officials were in fact balancing the competing interests. Further, at least two of the letters expressly referred to the principles of the Act, albeit in general terms, while another stated that the exercise of the discretion to withhold involved a balancing exercise. Consequently, having had regard to the materials in the record, I find that adequate reasons for the refusal to disclose the exempt documents were given and that the appellants have failed to establish that the Minister's discretion was exercised unlawfully.
[117] Finally, I note that it is not apparent from the record that Mr. Trottier specifically turned his mind to whether the final weightings could be disclosed in the exercise of his discretion. Counsel did not argue that this vitiated the refusal. Accordingly, I have assumed that the factors considered by Mr. Trottier in connection with the same issue in Canada (Minister of Industry) v. Canada (Information Commissioner) and McIntyre ("McIntyre"), 2001 FCA 253, formed the basis of his refusal in the case at bar and that for the reasons given in McIntyre, supra, at paragraphs 14-22, the refusal to disclose the final weightings was not an unlawful exercise of discretion.
F. CONCLUSIONS
[118] For these reasons, I would dismiss both appeals with costs.
"John M. Evans"
J.A.
"I agree
B.L. Strayer J.A."
"I agree
Robert Décary J.A."