Date: 20040126
Docket: T-1221-02
Citation: 2004 FC 119
Ottawa, Ontario, this 26th day of January 2004
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
STEPHEN M. BYER
Applicant
and
THE HON. JOHN M. REID
(The Information Commissioner of Canada)
Respondent
- and -
J.G.D. (DAN) DUPUIS
(The Director General of Investigations and Reviews of the
Office of the Information Commissioner of Canada)
Respondent
- and -
DONNA BILLARD
(Investigator in the Office of the Information
Commissioner of Canada)
Respondent
- and -
THE HON. LUCIENNE ROBILLARD
(The President of the Treasury Board of Canada)
Respondent
- and -
JOCELYNE SABOURIN
(Co-ordinator of the Access to Information and Privacy
Communications and Executive Services of the
Treasury Board of Canada Secretariat)
Respondent
- and -
THIERRY TERRACOL
(Analyst of the Access to Information and Privacy for the
Treasury Board of Canada Secretariat)
Respondent
- and -
THE HON. MARTIN CAUCHON
(The Attorney General and Minister of Justice of Canada)
Respondent
- and -
ROBERT L. BYER
Respondent
REASONS FOR ORDER AND ORDER
TABIB P.
[1] The Applicant has commenced an application against various representatives of the Treasury Board of Canada Secretariat (hereinafter the "TBS") and of the office of the Information Commissioner of Canada (hereinafter the "Commissioner") seeking the review of their decisions in relation to the partial refusal of the Applicant's request for access to information under the Access to Information Act, R.S.C., 1985, c.A-1 (the "Act").
[2] In this context, I am seized of the following five motions:
1. The Applicant's motion for leave to amend his notice of application.
2. The Commissioner's motion for an order striking the notice of application or ordering that it proceed as two separate applications.
3. The Applicant's motion to rule on the Commissioner's objections to the Applicant's request for production pursuant to Rules 317 and 318.
4. The TBS's motion for leave to file a confidential affidavit.
5. The TBS's motion to amend the designation of the responding parties.
[3] All motions were heard on the same day, in the order in which they are listed. The first three motions are interrelated and the parties have agreed that the order in which these motions were heard and are to be considered is appropriate.
The Proceedings:
[4] These proceedings arise out of the Applicant's request for access to the TBS's minutes # 816967 and # 816968 concerning the Treasury Board's policy on claims and ex-gratia payments, and all discussion papers, including background explanations, analysis of problems or policy options, presented for consideration in adopting this policy. The TBS refused to provide access to all but 6 of the 95 pages of the material corresponding to the Applicant's request, on the basis that they fell within the purview of subsection 69(1) of the Act. The Applicant therefore made a complaint to the Commissioner, who investigated the complaint and concluded that it was not well founded because the Applicant, inter alia, had been provided with all of the records to which he was entitled.
[5] The main issue in this matter is whether certain documents or parts thereof were withheld pursuant to paragraphs 69(1)(a), (e) or (g) of the Act, when they should properly have been severed from other document and disclosed in accordance with paragraph 69(3)(b) as "discussion papers". This process involves the application of the principles set forth by Justice Blanchard in The Information Commissioner v. The Minister of the Environment Canada and Ethyl Canada Inc., [2001] 3 F.C. 514 (hereinafter "Ethyl Canada").
[6] It is not clear from the record before me whether the principles of the Ethyl Canada decision were in fact taken into account by TBS or the Commissioner in this instance, or if they weren't, whether their application would have made a difference to TBS's decision as to access. What is clear is that neither the TBS's response or the Commissioner's report make any mention of the Ethyl Canada guidelines, and that on September 26, 2002, after the present application had been commenced, counsel for the Commissioner wrote to the Applicant and made the following concession and comment:
"(...) that it would have been appropriate, in your case, to make a recommendation consistent with the order issued by Justice Blanchard in the above-referenced case and to report to the head of the government institution and to you accordingly. It is the Information Commissioner's position, however, that the doctrine of functus officio prevents him in these specific circumstances from re-opening the investigation in his own volition."
[7] The wording of the Commissioner's letter implies that the position stated in this letter constitutes a change from the position it took during the course of the investigation.
[8] The Applicant had from the inception of this application taken the position that TBS and the Commissioner had willfully and in bad faith refused to take into account the Ethyl Canada decision in reaching their decisions. The Applicant takes the September 26 letter of the Commissioner and the change in position as further evidence of bad faith on the part of the Commissioner in the conduct of its investigation and in reaching its conclusion.
[9] The Applicant's initial notice of application seeks the following remedies:
"1. The review by this Honourable Court of the decision made by the Information Commissioner of Canada to accept the decisions of the Treasury Board of Canada, as made by the Treasury Board of Canada Secretariat, pursuant to the provisions of the Access to Information Act and to order the release of the records to the Applicant that have been wrongfully and illegally withheld by the Respondent(s).
2. The issuance of a writ of Mandamus by this Honourable Court, ordering the Respondents to immediately release and give to the Applicant the following documents, namely:
[a] All discussion papers related to Treasury Board minute(s) numbers 816967 and 816968, the purpose of which was to present background explanations, analyses of problems or policy options to council for consideration by council in making decisions concerning the Treasury Board of Canada Secretariat's Policy on Claims and Ex gratia Payments, issued September 5, 1991 and later revised on June 1, 1998 in accordance with Section 69(3)(b)i, of the Access to Information Act R.S. 1985 c.A-1, s. 69; 1992 c.1 s. 144 (F).
[b] All the content of the documents and/or pages of information (regardless of format) deemed "relevant" by the Treasury Board Secretariat, to the Applicant's request for access to information dated October 23, 2001, that were withheld, to include the following:
(...)
The Applicant appeals to the Federal Court of Canada (Trial Division), from the decision of the Information Commissioner of Canada, the Hon. John M. Reid, P.C., dated July 17, 2002 (received by the Applicant on July 22, 2002), regarding the access to information request made by the Applicant dated October 23, 2001 and identified by the Information Commissioner of Canada as follows: Our file: 3100-16738/001 and Institution File: A-2001-00161-tt (* Note - the Commissioner's omission of Institution File: A-2001-00244-js). The decision of the Information Commissioner of Canada is that he is satisfied that the Applicant has been given access to all records to which the Applicant is entitled under the Access to Information Act and that based upon this finding, he considers the Applicant's complaint to be resolved."
[10] The grounds stated in the original notice of application in relation to the Commissioner are essentially that the Commissioner's conclusions are at odds with the decision of the Court in Ethyl Canada. Because the Commissioner was a party to the Ethyl Canada case, and moreover, was the party urging the conclusion eventually reached by Justice Blanchard, the Applicant concludes that the Commissioner was in bad faith in failing in this instance to apply the same principles.
[11] While the grounds stated in support of the notice of application therefore appear to take issue with the manner in which the Commissioner conducted its investigation, the remedies sought are clearly limited to the review of the "decision" of the Commissioner and to an order directed, inter alia, against the Commissioner to release the information sought by the Applicant. The relief sought does not include an order returning the matter to the Commissioner so that a new and/or "proper" investigation and report be completed.
The Applicant's Motion to Amend:
[12] The amendments which the Applicant seeks leave to make to his notice of application for the most part relate solely to the Commissioner. They can generally be classified as follows:
a) amendments to include reference to the Commissioner's letter of September 26, 2002; the purpose of these amendments is to "review" the position taken by the Commissioner in that letter that he was functus officio to amend his recommendation and to introduce the letter as further evidence of bad faith;
b) amendments to include reference to the Court record in Federal Court files no. T-1125-99, A-761-99 and A-762-99, as evidence of bad faith by the Commissioner;
c) amendments to modify the designation of the "decision" of the Commissioner under review so that it reads: "the alleged continuing investigation and subsequent report and its conclusion". This, it seems, is done to take the letter of September 26, 2002 into account as forming part of a continuing investigation and reporting process of the complaint by the Commissioner;
d) miscellaneous amendments which are not opposed by the Respondents (to: page 6, paragraph 2 and subparagraph 2[b]; page 8, paragraph 3 in fine (reference to documents subsequently received from TBS); and page 10, paragraphs 8 and 9 of the proposed amended application).
[13] To the extent that these proposed amendments, if allowed, could be said to clarify or even expand the scope of the application as against the Commissioner so that allowing them could affect the outcome of the Commissioner's motion to strike, it is appropriate that the motion for leave to amend be considered before the motion to strike. However, if I find that, even as amended, the application ought to be struck as against the Commissioner, there would be no point in granting leave to make amendments which relate only to the application as directed against the Commissioner. As I have concluded that the application, as directed against the Commissioner, should be struck, my reasons on the motion to amend will be brief.
[14] If the application had been allowed to proceed against the Commissioner, I would have allowed all amendments, with the exception of the amendments at page 12, paragraph 9 and page 13, paragraphs 3 and 4 of the proposed amended notice of application, relating to the Court record in files T-1125-99, A-761-99 and A-762-99. The Court files referred to are the proceedings from which the Ethyl Canada decision arose. The decision of the Court in Ethyl Canada is a matter of law and of public record. To the extent that it may be relevant to the application, the position taken by the Commissioner in these proceedings is of public record and appears from the decision. The Applicant has not explained or demonstrated how the pleadings and proceedings leading to the decision and filed into Court in that matter could have any relevance to this application or add anything to the debate herein.
[15] While the necessity of amending the notice of application to include specific reference to the Commissioner's letter of September 26, 2002 may be questioned, the letter would clearly be relevant in the context of a judicial review of the Commissioner's investigation and report and the amendment would not cause any prejudice to the parties. Indeed, the Commissioner itself filed a copy of the letter in this matter. Amendments referring to the letter, including consequential amendments, would therefore have been allowed.
[16] Finally, the miscellaneous amendments referred to in paragraph 12(d) above and which do not relate solely to the application as against the Commissioner were not specifically opposed by the Respondents and will be allowed in any event.
The Commissioner's Motion to Strike:
[17] In setting out the relief sought in the original notice of application, I noted that the sole relief sought as against the Commissioner was a review of its "decision" and an order that the Commissioner disclose to the Applicant the information requested. None of the Applicant's proposed amendments would have changed the nature of the orders sought against the Commissioner.
[18] While the striking of an application for judicial review is a discretionary remedy that should be used only in exceptional circumstances and in the clearest of cases (David Bull Laboratories v. Pharmacia [1995] 1 F.C. 588 (FCA)), I am satisfied that this is such a case.
[19] It is abundantly clear from the Act and from the jurisprudence of this Court and of the Federal Court of Appeal that this Court does not have jurisdiction to review the Commissioner's findings and recommendations pursuant to section 41 of the Act, and that a motion to strike an application seeking such a review must be granted:
"In short, the Court has no jurisdiction, pursuant to section 41, to conduct a judicial review of the Information Commissioner's findings and recommendations. It was therefore not open to the motions judge to allow the application for judicial review to continue."
(Canada (Attorney General) v. Bellemare [2002] F.C.J. No. 2077 (F.C.A.), at par. [13]).
[20] The case law does recognize that the conduct of the Commissioner's investigation remains, in appropriate cases, subject to judicial review under section 18.1 of the Federal Courts Act (Canada (Attorney General) v. Canada (Information Commissioner) [1998] 1 F.C. 337 and Yeager v. Canada (Correctional Services) [2000] F.C.J. No. 537). However, it is clear in this case that, notwithstanding the allegation that the Commissioner acted in bad faith in conducting its investigation, the application seeks only to review the decision of the Commissioner and to obtain communication of the information. Indeed, as the application is also clearly framed as a review of the TBS's decision to refuse access pursuant to s. 41 of the Act, I cannot see how a judicial review of the Commissioner's investigation or report would serve any useful purpose, nor has any been suggested by the Applicant.
[21] Furthermore, I agree with the representations of the Commissioner, to the effect that through the application of the principles expressed in Karavos v. Toronto (City) [1948] 3 D.L.R. 294 (Ont. C.A.) and Rubin v. Canada (Privy Council) [1994] F.C.J. No. 316 (F.C.A.), a mandamus cannot be issued against the Commissioner to give access to or disclose a document which is the object of a request for access, since there is no "clear, legal right" to have the information disclosed to the Applicant by the Commissioner. Any duty of disclosure or of providing access to information under the Act is clearly a duty owed by the head of the government institution concerned, not by the Commissioner.
[22] Accordingly, since the decision of the Commission is not open for judicial review, and that a mandamus cannot be issued against the Commissioner for disclosure, it follows that the application, as directed against the Commissioner, is so clearly improper as to be bereft of any possibility of success and must be struck.
Motion to Rule on the Commissioner's Objection to the Applicant's request under Rules 317 and 318:
[23] Rule 317 of the Federal Court Rules, 1998 contemplates only the communication of material in the possession of the tribunal "whose order is the subject of the application". As I have determined that the application, as it relates to a judicial review of the Commissioner's "decision", is to be struck, it follows that there can be no valid request for communication of any material from the Commissioner under Rule 317. The Applicant's motion to rule on the Commissioner's objection is therefore dismissed.
TBS's Motion to File a Confidential Affidavit:
[24] The Applicant did not file a motion record in response to the TBS's motion for leave to file a confidential affidavit comprising of communications between the Commissioner and TBS. On oral argument before me, the sole argument advanced by the Applicant was that any right to privacy or non-disclosure established by the Act is lost when the party seeking to rely on the right to privacy was acting in bad faith. Without even considering whether the argument is founded in law, it is clear that to order the production of material which would otherwise be protected before the alleged bad faith has even been proven would be to rob the protection of any practical effect. In the present case, the TBS's alleged bad faith is no more than a bare allegation. There are no particulars given, and no evidence has been led before me that would support such a finding. The Applicant's objections on that ground cannot be retained.
[25] The Respondent has not contested, and indeed I am satisfied, that the TBS's request meets the criteria developed in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522. As the TBS has further undertaken to provide access to the confidential material to counsel for the parties (including the Applicant's counsel if one is appointed) upon a proper undertaking by them being signed, the TBS's motion will therefore be granted.
Motion on Behalf of TBS to Amend the Style of Cause:
[26] Again, the Applicant has not filed a responding record to that motion, and no argument has been made by the Applicant at the hearing other than the desirability of persons in public office to be made personally accountable for their action. I am satisfied, on the record presented and arguments made on behalf of the TBS, that the only proper respondent to the application is the President of the Treasury Board.
ORDER
IT IS ORDERED THAT:
1. The application, as directed against the Respondents the Hon. John M. Reid (the Information Commissioner of Canada), J.G.D. (Dan) Dupuis (the Director General of Investigations and Reviews of the Office of the Information Commissioner of Canada) and Donna Billard (Investigator in the Office of the Information Commissioner of Canada) is struck, and the aforementioned Respondents shall be removed from the style of cause.
2. The Respondents, the Hon. Lucienne Robillard (the President of the Treasury Board of Canada), Jocelyne Sabourin (Coordinator of the Access to Information and Privacy Office for the Treasury Board of Canada Secretariat), Thierry Terracol (Analyst of the Access to Information and Privacy Office for the Treasury Board of Canada Secretariat) and the Hon. Martin Cauchon (The Attorney General and Minister of Justice Canada) shall be removed from the style of cause and replaced with the "President of the Treasury Board" as Respondent.
3. The Applicant shall serve and file an amended notice of application bearing the new style of cause, making such amendments as are required to comply with paragraph 1 of this order. The proposed amendments shall be submitted to counsel for the President of the Treasury Board for approval prior to filing. If approval is not given, the proposed amended notice of application shall be submitted to the case management prothonotary for direction.
4. The Applicant has leave to include in his amended notice of application, the amendments referred to at sub-paragraph 12(d) of these reasons.
5. The Respondent's motion for leave to file a confidential affidavit is granted. The Respondent shall submit a draft order setting out the manner in which the confidential affidavit is to be treated, with the Applicant's consent as to form and content. If the parties cannot agree, they shall each provide brief written submissions to the Court, no later than February 13, 2004.
6. The parties shall seek directions from the case management judge or prothonotary as to the further steps to be taken in this proceeding and the schedule therefore.
"Mireille Tabib"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1221-02
STYLE OF CAUSE: Stephen M. Byer v. The Hon. John M. Reid and others
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 12, 2004
REASONS FOR ORDER: Madam Prothonotary Mireille Tabib
APPEARANCES:
Mr. Stephen M. Byer Applicant appearing on his own behalf
Mr. Daniel Brunet for the Information Commissioner of Canada
Ms. Patricia Boyd Respondents
Mr. Christopher Rupar. for the Respondents - The Honourable Lucienne Robillard, Jocelyn Sabourin, Thierry Terracol and The Honourable Martin Cauchon
Mr. Robert L. Byer Respondent appearing on his own behalf
SOLICITORS OF RECORD:
Office of the Information for the Information Commissioner of Canada
Commissioner of Canada Respondents
Legal Services
Ottawa, Ontario
Morris Rosenberg for the Respondents - The Honourable Lucienne
Deputy Attorney General of Canada Robillard, Jocelyne Sabourin, Thierry Terracol and
Ottawa, Ontario The Honourable Martin Cauchon