Date: 20000818
Docket: T-877-00
BETWEEN:
CANADIAN TOBACCO MANUFACTURERS" COUNCIL
A and B (Confidential)
Applicants
- and -
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
LEMIEUX J.:
[1] Pursuant to Rule 369 of the Federal Court Rules, 1998, (the "Rules"), the Information Commissioner of Canada (the "Information Commissioner") moves the Court in writing for leave to appear as a party in this judicial review proceeding as required by paragraph 42(1)(c) of the Access to Information Act (the "Act") and, if leave is granted, an order dealing with consequential procedural issues including a modification of the confidentiality order issued by Prothonotary Lafrenière on May 29, 2000.
[2] The applicants, Canadian Tobacco Manufacturers" Council, A and B (Confidential), oppose the granting of party status to the Information Commissioner; if leave is granted, they suggest modifications to the procedural order sought by him. The basis for the applicants" resistence is three-fold: duplication, lateness and irrelevance.
[3] The applicants argue duplication because the respondent, the Minister of National Revenue, has decided to release all of the documents sought by the requestor Robert Cunningham, who filed a notice of appearance in these proceedings. The applicants argue the respondent"s position is identical to the view taken by the Information Commissioner after his investigation concluded after the respondent had decided to release.
[4] The applicants argue lateness because they filed their notice of application on May 17, 2000 and served the Information Commissioner forthwith. Yet, the applicants argue, the Information Commissioner only seeks to appear two months thereafter and after the applicants have filed their affidavits and documentary exhibits pursuant to Rule 306.
[5] The applicants argue irrelevance because they say the issues the Information Commissioner wishes to make or put forward to the Court are not relevant on this section 44 Act review.
[6] I am satisfied the Information Commissioner should be granted leave to appear as a party in this proceeding because I am convinced his participation will be of assistance to the Court and this for two reasons.
[7] First, the Commissioner has investigated Mr. Cunningham"s complaint against the Minister"s initial decision to withhold requested documents. The Information Commissioner took evidence during his investigation. In this context, the Information Commissioner"s participation in this proceeding will ensure that the Court will have all of the necessary and complete facts before it.
[8] Second, the Information Commissioner"s knowledge and background of the statute, its jurisprudence and the legal issues in this case will be instructive to the Court in terms of applicable legal principles.
[9] I now turn to certain procedural matters raised by the applicants and the Information Commissioner in these proceedings.
[10] I agree with counsel for the applicants that paragraph 4(a) of the draft order proposed by the Information Commissioner varying Prothonotary Lafrenière"s confidentiality order is unnecessary. As is, this confidentiality order will not stifle public access because what is to remain confidential is part of the sealed record (the documents or third party information) or facts in such sealed record.
[11] I see no need, as requested by the Information Commissioner in his draft order, to restrict access to the materials to be filed by him under Rules 151 and 152 only to counsel for the applicants and the respondent to the exclusion of the two parties themselves. Robert Cunningham is in a different position. He is the requestor and cannot be granted access to the sealed records or confidential material because such access would defeat the very purpose of the applicants" judicial review application.
[12] Subject to appropriate undertakings as to confidentiality, the applicants and the respondent themselves as well as their counsel should be permitted to know each other"s material gathered by the Information Commissioner during his investigation.
[13] The applicants served and filed their affidavits and documentary exhibits on June 30, 2000. Under the Information Commissioner"s draft order, he will serve and file his affidavit evidence ten days after this order. The applicants want the opportunity of putting further affidavit material to respond to any material filed by the Information Commissioner. It is my view that this request is premature and should only be made after the Information Commissioner has filed his material (see Rule 312(a)).
[14] Finally, under the Information Commissioner"s draft order, he will be granted the right to cross-examination. Counsel for the applicant points out that the respondent Minister and the Information Commissioner have the same position. He says any cross-examination of the applicants by the Information Commissioner should follow the cross-examination by counsel for the Minister and should be limited to issues relating to this proceeding that have not already been covered in counsel for the Minister"s cross-examination. I accept part of counsel for the applicants" submissions but I find it inappropriate to make a direction that such cross-examination should be limited to issues framed by the applicants and the respondent. Such an order would straightjacket the Information Commissioner in a manner inconsistent with his appearance as a party and not simply as an intervenor. Counsel for the applicants has appropriate remedies during cross-examination and thereafter if he believes counsel for the Information Commissioner has strayed beyond proper limits.
[15] Finally, I agree with counsel for the applicants that paragraph 8 of the Information Commissioner"s draft order is redundant. Moreover, section 6 of that draft is also redundant because of this ruling and the revised order issued as a result.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
AUGUST 18, 2000