Date: 19990419
Docket: A-785-96
OTTAWA, ONTARIO, MONDAY, APRIL 19, 1999
| CORAM: DESJARDINS J.A. |
| DÉCARY J.A. |
| NOËL J.A. |
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant (Applicant)
- and -
MINISTER OF NATIONAL DEFENCE
Respondent (Respondent)
JUDGMENT
The appeal is dismissed without costs.
Alice Desjardins
J.A.
Certified true translation
M. Iveson
Date: 19990419
Docket: A-785-96
| CORAM: DESJARDINS J.A. |
| DÉCARY J.A. |
| NOËL J.A. |
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant (Applicant)
- and -
MINISTER OF NATIONAL DEFENCE
Respondent (Respondent)
Hearing held at Ottawa, Ontario, on Tuesday and Wednesday, April 13 and 14, 1999
Judgment delivered at Ottawa, Ontario, on Monday, April 19, 1999
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 19990419
Docket: A-785-96
CORAM: DESJARDINS J.A.
| DÉCARY J.A. |
| NOËL J.A. |
BETWEEN:
INFORMATION COMMISSIONER OF CANADA
Appellant (Applicant)
- and -
MINISTER OF NATIONAL DEFENCE
Respondent (Respondent)
REASONS FOR JUDGMENT
THE COURT
[1] The Information Commissioner of Canada (the Commissioner) is appealing from a decision of a Trial Division judge who dismissed his application for review under paragraph 42(1)(a) of the Access to Information Act1 (the Act) on the ground that it was premature.
[2] A summary of the history of this case is required.
[3] In August 1994, Michel D.W. Drapeau (the complainant) asked the Department of National Defence (the government institution, or the institution) to give him access to a report prepared by Major General Gauthier. Using the provisions of section 9 of the Act, the government institution extended by 120 days the time limit of 30 days set out in the Act for notifying the complainant "as to whether or not access to the record or a part thereof w[ould] be given" (paragraph 7(a ) of the Act).
[4] At the expiration of the time limit on January 5, 1995, the institution had still not made its decision known. On January 16, 1995, the complainant made two complaints to the Information Commissioner on the ground that the institution had not met the deadline it had given itself.
[5] On January 30, 1995, the Commissioner informed the complainant that in light of the institution"s commitment to respond by February 15, 1995, he considered the complaints to be resolved.
[6] When he was informed of the institution"s continuing failure to respect its commitments, the Commissioner initiated two new complaints on his own behalf on March 17, 1995, pursuant to subsection 30(3) of the Act. He then proceeded to discuss with the institution how the issue could be resolved, and it was agreed that the cut-off date would be postponed until August 24, 1995.
[7] As an answer had still not been provided, the Commissioner informed the institution on November 28, 1995, of the [TRANSLATION] "new approach" he had developed in concert with the institution, namely:
. . . if an answer is not provided by the date recommended by my office on consultation with yours, we will, with the consent of the complainant, make application to the Federal Court of Canada for a review of National Defence"s "deemed" refusal to answer the request.2
[8] The Commissioner added the following:
Annex "A" to this letter lists complaint cases in which ND failed to respect the response commitments it made to me and which I accepted as resolutions of those cases. Hence, I hereby formally inform you that I have initiated complaints against ND in all these cases, in order to reinstate my powers. This letter also constitutes my report to you of the results of the investigation of these self-initiated complaints. I find the complaints to be well-founded and recommend that ND respond to these requests within 15 days of the date of this letter.
[9] On November 30, 1995, the Commissioner wrote to the complainant as follows:3
As you know, ND failed to respect its commitment to my office and to you. Consequently, on November 28, 1995, pursuant to subsection 30(3) of the Act, I initiated complaints against ND in all these cases. On that same date, I reported to ND my finding that the complaints are well-founded and recommended that answers be given within 15 days of the date of my letter.
It is my hope that ND will follow my recommendations. However, should answers not be given by the recommended dates, I have concluded that it would be appropriate for me, with your consent, to pursue the matter in Federal Court. If you agree, please complete the enclosed Consent Form and return it to me immediately.
[10] On December 13, 1995, and therefore within the time limit the Commissioner had set in his letter of November 28, 1995, the institution sent the following response to the complainant:4
On 06 April 1995 I released to you 31 pages pertaining to the duties, classification, and salary range of General Gauthier while employed at Dhist. I was unable then to release his "work", as consultations were required with other Government departments.
I regret to advise you that that process is not yet completed, although I expect it to be shortly. Notwithstanding, I am prepared to undertake a partial release of that portion of the records on which consultations are complete.
General Gauthier's "work" was in fact a Report on the Formulation of Defence Policy from 1970 to 1990. It is a seven volume manuscript held on deposit at Dhist in anticipation of preparation of an official history of the post-Second World War Canadian Forces. As it is a valuable source for all historians of the period, I have endeavoured to apply minimal exemptions to the manuscript. Still, you will note that certain sections are exempted pursuant to sections 13(1)(a) (b), 15(1) (International Affairs) (Defence), 19(1) and 21(1)(a) (b); other portions are excluded pursuant to section 69(1)(g) re (a) (c) (d).
[11] On December 22, 1995, the Commissioner filed a notice of application for review in the Trial Division of this Court pursuant to paragraph 42(1)(a) of the Act, in which he sought the following relief:
[TRANSLATION]
- that the Court order the Minister of National Defence, on the conditions it considers appropriate, to give written notice to the applicant as to whether or not access to each of the requested records or a part thereof will be given,
and notwithstanding the above
- that, if the Court finds that the respondent did not establish the merits of the refusal to give access to each of these records, the Court order the Minister of National Defence to give the applicant access to each of the requested records for which the Minister of National Defence is deemed because of his failure to give written notice to the applicant to have decided to refuse access.
[12] At trial, counsel for the Commissioner limited the scope of this second conclusion as follows:5
[TRANSLATION]
Mr. Brunet: Disclosure, on the condition that my client, after having carefully considered it . . . the position we wish to take before you must be very clear. We are not suggesting that the government institution is time-barred from invoking the mandatory exemptions set out in the Access to Information Act, but clearly this must be fully proven.
It is barred from raising discretionary exemptions, however with respect to the mandatory exemptions set out in the Act, our position before you is that we are not claiming it is barred from raising those exemptions, subject to the requirements of the law of evidence and the burden imposed by the Access to Information Act. That is the position we are taking at the Federal Court for the purposes of this case, considering the mandate of the Information Commissioner, who represents the public interest.
[13] At the time the proceeding was filed, the institution was still in default with respect to 155 of the 1,204 pages of the Gauthier report.
[14] On January 12, 1996, twenty days after the application was filed in the Federal Court, the institution informed the complainant of its final decision refusing to give access to the final 22 pages of the requested record.
[15] In dismissing the review application on the ground it was premature, the trial judge held that the decision of the government institution dated January 12, 1996, did not constitute a deemed refusal to disclose based on the government institution"s continuing failure to give access,6 but rather a final disclosure out of time. A disclosure out of time did not necessarily nullify the government institution"s right to avail itself of the exemptions and exceptions provided by the Act, as the Commissioner still had the opportunity to consider the merits of the exemptions and exceptions and to solicit the comments of the government institution.
[16] The Commissioner submits that the trial judge erred in finding the proceeding before him premature. According to the Commissioner, this proceeding was valid, as all of the conditions for the application of sections 41 and 42 of the Act had been met. Following a complaint by Mr. Drapeau with respect to the 120-day extension of the time limit by the government institution pursuant to section 9 of the Act, the Commissioner found this extension of time unjustified and reported this finding to the complainant and the government institution. On March 17, 1995, the Commissioner initiated a complaint under subsection 30(3) of the Act and notified the government institution. As he explained in his letter of November 28, 1995, the Commissioner decided to initiate a complaint because of the institution"s continuing failure to meet the time limits it had set for itself.
[17] The Commissioner submits that as indicated in his letter of November 28, 1995, he carried out the investigation required under section 42 of the Act and met all of the conditions precedent to filing an application for review in the Trial Division of this Court.
[18] We do not believe this is so.
[19] Under the terms of subsection 10(3) of the Act, where a government institution fails to give access to a record within the time limits set out in the Act, there is a deemed refusal to give access, with the result that the government institution, the complainant and the Commissioner are placed in the same position as if there had been a refusal within the meaning of section 7 and subsection 10(1) of the Act.
[20] The Commissioner may then initiate a complaint under section 30 of the Act. He notifies the head of the institution (section 32). He conducts the investigation, in the course of which the institution is given a reasonable opportunity to make representations (subsection 35(2)) and for the purposes of which the Commissioner has extraordinary powers (section 36), including the power to summon and enforce the appearance of persons in the same manner and to the same extent as a superior court of record (paragraph 36(1)(a)), to enter any premises occupied by the government institution (paragraph 36(1)(d)) and to examine any record, as no record may be withheld from him on any grounds (subsection 36(2)). He provides the head of the institution with a report containing his findings and recommendations (paragraph 37(1)(a)). He may specify the time within which the head is to give him notice of any action taken or proposed to be taken to implement the recommendations or reasons why no such action has been or is proposed to be taken (paragraph 37(1)(b)); and reports the findings of his investigation to the complainant (subsection 37(2)), but where a notice has been requested under paragraph 37(1)(b) no report shall be made until the expiration of the time within which the notice is to be given to the Commissioner.
[21] In the instant case, as soon as the institution failed to comply with the time limit, the Commissioner could have initiated his investigation as if there had been a true refusal. He does have powers to investigate including, at the beginning of an investigation, the power to compel the institution to explain the reasons for its refusal. The Commissioner, who is master of his procedure pursuant to section 34 of the Act, chose another approach. He hoped to persuade the institution to voluntarily give the notice required under sections 7 and 10. He tried to transform, as it were, what was then a deemed refusal into a true refusal. For all practical purposes, he split his investigation into two parts, initially trying to get an answer from the institution, so he could then consider the merits of whatever answer might be provided.
[22] On November 28, 1995, while he was still working on the first part of his investigation, the Commissioner lost patience. He gave the institution fifteen days to give its notice of refusal, or else he would pursue the matter in the Federal Court of Canada. He immediately initiated a new complaint (the letter of November 28, 1995 refers to this new complaint, however this complaint is not in the record), which he says he accepted at once, and advised the institution to respond to these requests for access "within 15 days of the date of this letter". It is clear from the tone of this letter and the one he sent the complainant on November 30, 1995, that at this point the Commissioner was still only concerned with having the institution take a position on the requests for access. There was never any question of considering the merits of the refusal, and the Commissioner"s recommendation dealt with the answer to be given, not at all with access to the record. That is in fact evidenced in the first conclusion sought in the review application, namely that the institution notify the complainant of its decision whether or not to give access to the record. It was only in his review application dated December 22, 1995, that the Commissioner brought up the issue of disclosure itself for the first time in the second conclusion, and was seen above, this conclusion was substantially watered down during the hearing of the application on September 23, 1996.
[23] It is clear on the face of the letter of November 28, 1995, that the Commissioner could not do what he did " file a complaint and decide on it immediately " without even giving the institution involved the chance to respond. It would be one thing if the Commissioner were content to argue that his recommendation was limited to the first part of his investigation; we could probably accept that the institution had had more than enough opportunity to explain its delay in giving notice, however that is not the issue.
[24] In fact, the Commissioner goes much further. He submits that the effect of the deemed refusal is to prevent the institution from subsequently invoking the exceptions set out in the Act and consequently that the Commissioner"s initial investigation allowed him to decide on the merits of the complaint. This argument cannot succeed. The Commissioner was in fact still at the first stage of his investigation. The dispute between himself and the institution had never turned on the subject of actual disclosure of the report. In short, by applying to the Federal Court, the Commissioner skipped a step. He acted as if he had investigated the merits of what until that time had been a deemed refusal, although he had not yet done so.
[25] Therefore, at the hearing of the review application, it was clear that the first conclusion sought, that is to compel the institution to give the required notice, had become moot, because the institution had finally complied with the Commissioner"s request on January 12, 1996. The trial judge accordingly had complete discretion to decline to hear the application on this issue.
[26] Moreover, as the second part of the investigation concerning the merits of the refusal to give access " either deemed or, since January 12, 1996, true " had still not been undertaken at the time of the hearing at trial and had accordingly not yet been investigated, it necessarily followed that the Court could not grant the Commissioner"s request [TRANSLATION] "to order the Minister of National Defence to give access . . .". As Mr. Justice Dubé properly found, the application was premature.
[27] The investigation the Commissioner must conduct is the cornerstone of the access to information system. It represents an informal method of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power to make recommendations to the institution involved. The importance of this investigation is reinforced by the fact that it constitutes a condition precedent to the exercise of the power of review, as provided in sections 41 and 42 of the Act.
[28] Accordingly, the Commissioner could not properly apply to the Trial Division of this Court for review as he had not fulfilled the condition precedent required in paragraph 42(1)(a), which provides:
| 42. (1) The Information Commissioner may (a) apply to the Court, within the time limits prescribed by section 41, 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; [Our emphasis] |
42. (1) Le Commissaire à l'information a qualité pour: a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, 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; [Nous soulignons] |
[29] The remedy set out in section 41 is judicial review:
| 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 within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow. [Our emphasis] |
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, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation. [Nous soulignons] |
[30] In the alternative, the Commissioner submits that the government institution can no longer invoke the discretionary exemptions based on subsection 15(1) and paragraphs 21(1)(a) and (b) of the Act once an application for review has been filed in the Federal Court. He specified that he was not challenging the government institution"s authority to invoke the mandatory exceptions provided in subsections 13(1) and 19(1) of the Act even after the filing of the review application.
[31] In Davidson,7 this Court essentially held that a government institution cannot invoke discretionary exemptions after the Commissioner"s investigation is complete, because in so doing the complainant would be deprived of the benefit of this investigation, which constitutes the first of two safeguards, the second being judicial review.
[32] In the instant case, as this first step has not yet been undertaken, if the government institution intends to invoke any discretionary exemptions, it must do so during the Commissioner"s investigation.
[33] Last, the Commissioner submits that the trial judge erred in holding that a party which claims that its right to a full cross-examination on the affidavits of the adverse party"s witnesses has been breached cannot raise this during the hearing of the review application, but must do so by interlocutory motion under former Federal Court rule 332.1 (since replaced by rules 83, 84 and 85).
[34] We are of the view that the trial judge properly exercised his discretion on this issue and that the Commissioner had all the time required between the cross-examination of witness B.J. Petzinger on February 27, 1996, and the hearing of the review application on September 23, 1996, to file an interlocutory motion.
[35] For all of these reasons, this appeal should be dismissed.
[36] The appellant submits that he is entitled to costs even if the appeal is dismissed. He relies on section 53 of the Act, which requires the "Court" to award costs to the applicant "[w]here the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act". This section does not apply to costs of the appeal, as "Court" is defined in section 3 of the Act as "the Federal Court"Trial Division". We are not satisfied, in any event, that there is "an important new principle" here. The Commissioner is largely responsible for the confusion he has asked the Court to clear up. That being said, the respondent"s considerable delay in responding to the requests by the complainant and the Commissioner remains the primary cause of this dispute, and we do not believe it is appropriate to make the Commissioner responsible for the costs of the appeal. The appeal should accordingly be dismissed without costs.
Alice Desjardins
J.A.
Robert Décary
J.A.
| Marc Noël |
J.A.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-785-96
APPEAL FROM A TRIAL DIVISION JUDGMENT DATED OCTOBER 4, 1996. FILE NO. T-2732-95.
STYLE OF CAUSE: Information Commissioner of
| Canada v. Minister of National |
Defence
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 13 and 14, 1999
REASONS FOR JUDGMENT OF THE COURT: (Desjardins, Décary, Noël, JJ.A.)
DATED: April 19, 1999
APPEARANCES:
Daniel Brunet for the appellant
Nathalie Daigle
Alain Préfontaine for the respondent
SOLICITORS OF RECORD:
Daniel Brunet for the appellant
General Counsel
Office of the Information Commissioner of Canada
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________2 Appeal Book, vol. I at p. 65.
3 Appeal Book, vol. I at p. 69.
4 Appeal Book, vol. I at p. 73.
5 Appellant"s memorandum, Appendix A at p. 6.
6 See subsection 10(3) of the Act.
7 Davidson v. Canada (Attorney General), [1989] 2 F.C. 341 (F.C.A.).