Date: 19990219
Docket: T-1817-98
OTTAWA, ONTARIO, FEBRUARY 19, 1999
Before: J.E. DUBÉ J.
Between:
LES ALIMENTS PRINCE FOODS INC.,
Plaintiff,
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA,
Defendant.
ORDER
The motion to dismiss is dismissed.
_________________________
| Judge |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990219
Docket: T-1817-98
Between:
LES ALIMENTS PRINCE FOODS INC.,
Plaintiffs,
and
DEPARTMENT OF AGRICULTURE AND
AGRI-FOOD CANADA,
Defendant.
REASONS FOR ORDER
DUBÉ J.
[1] This motion by the plaintiff asks the Court to rule that the appearance by the defendant ("the Department") in the case at bar is inadmissible as it does not have sufficient interest to act.
[2] This motion to dismiss is based on art. 55 of the Quebec Code of Civil Procedure ("the Code") regarding interest to bring an action at law. That article is pleaded pursuant to s. 4 of the Federal Court Rules, 1998 ("the Rules") providing that matters not provided for may be provided for by reference to the practice of the Superior Court of the province in question, here the province of Quebec.
1. Facts
[3] On May 11, 1998 Bernard Drainville of Société Radio-Canada made an application for access to information from the Department. On July 27, 1998 the Department's Access to Information and Privacy Services Manager, Denise Brennan, informed the plaintiff that she had received an application pursuant to the Access to Information Act ("the Act")1 in connection with documents containing information about the plaintiff. On July 28, 1998 Ms. Brennan granted access to information regarding the said documents. On September 17, 1998 the plaintiff filed in the Registry of this Court an application for judicial review of the aforesaid decision, made pursuant to s. 18.1 of the Federal Court Act and s. 44 of the Act. As appears from the record the plaintiff designated the Department as the defendant. On September 25, 1998 the Deputy Attorney General of Canada filed a notice of appearance in accordance with Rule 305 of the Rules.
2. Plaintiff's arguments
[4] The plaintiff alleged that the Act does not provide that a federal institution which rendered the decision may be considered a party and does not grant such capacity to defend its decision or interest to bring an action at law. The plaintiff based its motion on six points of law: (1) lack of interest; (2) lack of locus standi; (3) the Department's status; (4) comparative law; (5) the record; and (6) the legislation. For the purposes of this motion the points are summarized as follows.
(i) Lack of standing
[5] The person principally concerned is Bernard Drainville of Radio-Canada, who has standing to obtain the information in question. At the same time, the Department has no standing to accept or disclose this information. Article 55 of the Code reads as follows:
| 55. Whoever brings an action at law, whether for the enforcement of a right which is not recognized or is jeopardized or denied, or otherwise to obtain a pronouncement upon the existence of a legal situation, must have a sufficient interest therein. |
[6] The Department does not have sufficient standing since it has already rendered its decision and does not have to defend it, unless its jurisdiction is challenged. That is not the case here. Only Bernard Drainville of Radio-Canada and the plaintiff have sufficient standing to act.
(ii) Lack of locus standi
[7] The Department has no locus standi. In Joseph Borowski v. Canada (Attorney General)2 the Supreme Court of Canada held that the appellant Borowski had no standing to act. The Court based this decision on three judgments dealing with challenges to legislation (Thorson v. Attorney General of Canada,3 Nova Scotia Board of Censors v. McNeil4 and Borowski5). Section 52(1) of the Constitution Act, 1982 should be limited to challenges to legislation or an act of the government made pursuant to a power conferred by law. Borowski was not challenging either legislation or a governmental act. Accordingly, as for Borowski, the initial basis of the Department's standing to act disappeared.
(iii) Department's status
[8] As Ms. Brennan had already rendered the reasons for her decision she no longer had to defend the said decision, even if the Department was named as defendant. In this connection the plaintiff referred to four decisions and two scholarly texts dealing primarily with administrative tribunals.6
(iv) Comparative law
[9] With respect to comparative law, the Act respecting administrative justice7 provides in s. 101 that:
| 101. The parties to a proceeding are, in addition to the person and administrative authority or decentralized authority directly interested therein, any person so designated by law. |
[10] Additionally, the federal Access to Information Act does not provide for participation of the federal institution when disclosure has been denied.
(v) The record
[11] As to the argument based on the record, the plaintiff maintained that as Mr. Drainville had already appeared he could not intervene without participation by the Minister.
(vi) Legislation
[12] The plaintiff further submitted that the Court should determine at the outset whether the decision in question is judicial, quasi-judicial or administrative. Under s. 18.1 of the Federal Court Act dealing with applications for judicial review, a federal board, commission or other tribunal whose decision is challenged does not have to justify its decision to the Federal Court.
[13] In Coopers and Lybrand the Supreme Court of Canada held that a decision is legally subject to a judicial or quasi-judicial process when it contemplates a hearing, it affects the rights of persons or it involves an adversary process or an obligation to apply substantive rules.8
[14] In their Traité de droit administratif the writers René Dussault and Louis Borgeat deal (at p. 316) with the judicial decision, which [TRANSLATION] "is characterized by the exercise of some discretion in weighing the law and the facts and always involves legal consequences for the person concerned". The writers also cite Le contrôle judiciaire de l'action gouvernementale by D. Lemieux, which (at p. 320) defines this word as [TRANSLATION] "any decision-making process where an administrative authority exercises a discretionary power while observing certain aspects of an adversary procedure, whether such guarantees are required by legislation or by the general principles of law".
[15] From this the plaintiff concluded that Ms. Brennan's decision was a quasi-judicial decision and that therefore the Department did not have the right to defend it unless its jurisdiction was questioned.
3. Defendant's arguments
[16] The defendant alleged that the rule relied on by the plaintiff to limit intervention by the Department to purely jurisdictional matters pertains to judicial review of and statutory appeal from the decisions of administrative tribunals under s. 18.1 of the Federal Court Act. Here, on the other hand, the Court is concerned with a judicial remedy under the Act which is in the nature of a de novo proceeding.9
[17] In Air Atonabee10 McKay J. of this Court said essentially that judicial review under s. 44 of the Act is not an appeal or judicial review in the traditional sense. On the contrary, the Court must undertake a new and independent review of the entire matter, comparable to a trial de novo, and the third party is free to submit additional evidence. Three sections of the Act are involved. A person who has been denied disclosure of a document may request a review under s. 41. Under s. 44, a third party objecting to disclosure of the information is entitled to a review proceeding. Section 42 allows the Information Commissioner to initiate a review proceeding in the event of rejection.
[18] In light of the precedents on the point there is now no doubt that the Court's function is to review the matter de novo, including a detailed review of the record, document by document if necessary.
[19] It is thus of the very essence and structure of the Act that the federal institution in possession of the documents disclosure of which is requested should be a full party to the judicial review process provided for in the Act, and that it should inform the Court of its position on the "disclosability" of the documents in question. This is true whether the objection is made by a third party, as here, or by the institution itself, in which case the Act imposes on the latter a clear burden to establish the merits of its position.
[20] There has never been any question that the federal institution concerned can appear, file its evidence, hold cross-examinations on affidavits, submit memoranda of facts and law and argue orally on all the questions before the Court, as set out by McKay J. in the above-cited case. This is so clear that no one has ever questioned it.
[21] As noted earlier, the authorities submitted by the plaintiff apply only to administrative tribunals exercising judicial or quasi-judicial functions. Such tribunals decide on the rights of the parties appearing before them at the conclusion of an adversary proceeding, which is clearly not the case with the federal institution. We are not concerned here with a tribunal whose decision is disputed between the parties at the conclusion of an adversary and quasi-judicial proceeding. Naturally, in the latter case the tribunal could only intervene if its jurisdiction was challenged.
[22] Quite recently, my brother Nadon J. held in Desjardins and Department of Finance of Canada11 that in his opinion [TRANSLATION] "ss. 44 and 48 of the Access Act leave no doubt that the federal institution can participate fully in discussions regarding the disclosure or non-disclosure of the information sought".* To clarify this, he went on, at 11 and 12:
| [TRANSLATION] |
| Section 48 expressly provides that a federal institution which denies disclosure has the burden of establishing that its denial is valid. Consequently, s. 48 authorizes the federal institution to take part in the discussion. When the federal institution agrees to disclosure, it is s. 44 that applies. I feel certain that in such a case the federal institution can also participate fully in the discussion. In my opinion, it would be logical to allow the federal institution to participate fully only when it denies disclosure. |
[23] I note the fact that this decision was not appealed because, according to counsel for the plaintiff, as the media had disclosed the information in question to the general public an appeal would have been purely academic.
4. Analysis
[24] I entirely concur that the procedure set out in s. 44 of the Act is different from that specified in s. 18.1 of the Federal Court Act with respect to an application for judicial review of a federal board, commission or tribunal. Section 44 of the Act provides for a de novo proceeding. As defendant, the federal institution must appear to the third party notice in support of its decision. This is also what was found by my brother McKeown J. in Canada Post Corporation,12 at 238:
| [14] As the remedy within s. 44 of the Access Act involves a review in the nature of a trial de novo, s. 18.5 of the Federal Court Act provides an effective bar to any judicial review proceedings the applicant seeks to commence. |
[25] Section 18.5 of the Federal Court Act in question provides that where provision is expressly made by an Act of Parliament for an appeal to the Federal Court from a decision of a federal board, commission or other tribunal, that decision is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. McKeown J. concluded that the proceeding in question should be held under s. 44 of the Act.
[26] In conclusion, the Department made a decision authorizing the disclosure of the information requested and required the defendant to respond to notice of an application to review that decision by the plaintiff under the system contained in the Act. The Department is entitled and has a duty to participate fully in the discussions regarding disclosure of the information in question.
[27] The motion to dismiss is accordingly dismissed.
_______________________
| Judge |
OTTAWA, ONTARIO
February 19, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1817-98
STYLE OF CAUSE: Les Aliments Prince Foods Inc. v. Department
of Agriculture and Agri-Food
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 11, 1999
REASONS FOR ORDER BY: Dubé J.
DATED: January 19, 1999
APPEARANCES:
Martin Bédard and Louis Masson for the plaintiff
Rosemarie Millar for the defendant
SOLICITORS OF RECORD:
Joli-Coeur, Lacasse, Lemieux, Simard, St-Pierre for the plaintiff
Sillery, Quebec
Department of Justice for the defendant
Ottawa, Ontario
__________________1 R.S.C., s. A-1.
2 [1989] 1 S.C.R. 342.
3 [1975] 1 S.C.R. 138.
4 [1976] 2 S.C.R. 265.
5 Supra, note 2.
6 Labour Relations Board, Sask v. Dominion Fire Brick and Clay Products Ltd., [1947] S.C.R. 336; Central Broadcasting Co. v. C.L.R.B., [1977] 2 S.C.R. 112; Northwestern Utilities Ltd. v. Edmonton, [1979] 1 S.C.R. 684; CAIMAW v. PACCAR of Canada Ltd., [1989] 2 S.C.R. 983; AQUIN F. and CHÉNARD D., "Les tribunaux administratifs devant les cours supérieures : Études des principes juridiques applicables à leur qualité pour agir", (1986), 16 D.D.U.S. 781 and DUSSAULT R. and BORGEAT L., Traité de droit administratif, 2d ed., Tome 1, Les Presses de l'Université Laval, 1984, pp. 316 to 325.
7 S.Q. 1966, c. 54.
8 See M.N.R. v. Coopers and Lybrand, Studio A Enterprises Ltd. v. Pierre Roy, [1979] 1 S.C.R. 495, at 504, J.E. 88-208 (S.C.).
9 See Canada Post Corporation v. Canada (Minister of Public Works) (1994), 68 F.T.R. 235, and Air Atonabee v. Min. of Transport (1989), 27 F.T.R. 194.
10 Ibid.
11 T-912-98, November 20, 1998, not reported.
* No official English version available on date of this translation - TR.
12 Supra, note No. 9.