T-1348-04
T-1789-04
T-1874-04
T-2059-04
T-263-05
Ottawa, Ontario, March 23, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
NAUTICAL DATA INTERNATIONAL INC.
and
MINISTER OF FISHERIES AND OCEANS
REASONS FOR ORDER AND ORDER
[1] The applicant, Nautical Data International, Inc. ("NDI"), brought several applications pursuant to section 44 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "ATIA") to preclude the respondent, the Minister of Fisheries and Oceans, from disclosing certain information to third parties. Five of these proceedings have been consolidated (T-787-04, T-1348-04, T-1789-04, T-1874-04, T-2059-04), and one other, commenced at a later date, remains on its own (T-263-05). Before this Court, the applicant brings a motion for a stay of all six of those proceedings pursuant to subsection 50(1) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[2] At present then, the sole issue is whether this stay should be granted in respect of the consolidated proceedings and T-263-05.
[3] The correctness for determining the availability of a stay in respect of these proceedings, is the two-part test set out in Mon-Oil Ltd. v. Canada (1989), 26 C.P.R. (3d) 379 (F.C.T.D.); Canadian Pacific Railway Co. v. Sheena M (The), [2000] 4 F.C. 159 (F.C.T.D.). The applicant must demonstrate that (1) "a continuation of the action would cause prejudice or injustice and not merely an inconvenience or extra expense to the party seeking the stay"; and (2) "a stay would not be unjust to the other side": The Sheena M, supra at para. 23.
[4] At the outset, the applicant suggests that the automatic stay available under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "BIA"), in respect of actions brought against insolvents persons should apply by analogy.
[5] I do not share this view. Put simply, the provisions of the BIA contemplating an automatic stay are intended to provide for the orderly and fair distribution of the property of a bankrupt among its creditors, not to protect an insolvent person from legal relief in matters unrelated to the assets subject to the bankruptcy protection.
[6] Turning to the first part of the two-test for a stay espoused in The Sheena M, supra and Mon-Oil, supra, the applicant essentially submits that devoting its limited resources to meeting the requirements of the proceedings under the ATIA - providing evidence and attending for cross examination - would prejudice its ability to deal with the matters relating to its proposal under the BIA. If NDI cannot direct its resources towards restructuring the company, it will not remain a viable entity thus resulting in "extreme prejudice" in its opinion.
[7] With respect, I cannot agree. Notwithstanding that NDI may have limited resources the type of hardship that the applicant describes amounts to inconvenience and expense rather than "extreme prejudice". Even assuming it is close to the line, stays are only appropriate in the "clearest of cases" (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at para. 59) and "the onus of convincing a court that there ought to be a stay is a heavy one" (The Sheena M, supra at para 21). Thus I find that the first element required to justify a stay of proceedings has not been shown.
[8] Moreover, in my view, contrary to the applicant's submissions, the respondent would suffer an injustice if the stay was granted. The respondent has an obligation under the ATIA to provide access to information to requesting third parties, unless certain statutory exceptions come into play. And this right to access information has been held to be very important, indeed quasi-constitutional (Canada(Attorney General) v. Canada(Information Commissioner), [2004] 4 F.C.R. 181 (F.C.) at para. 194), and therefore not to be readily interfered with.
[9] Granting the stay would cause significant delay in access to the information and prejudice the respondent's ability to fulfill its obligations under the ATIA.
[10] Thus neither element of the two-part test for the stay is met. The Court does not find it is in the interest of justice that the proceedings be stayed. Accordingly, the motion is dismissed with costs.
ORDER
THIS COURT ORDERS that the motion be dismissed with costs.
J.F.C.