Date: 20040428
Docket: T-676-03
Citation: 2004 FC 626
Montréal, Quebec, the 28th day of April 2004
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
MAMIDIE KEÏTA and
BERNARD MICHAUD
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
and
CANADA PRIVACY COMMISSIONER
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Minister of Citizenship and Immigration Canada (the Minister) to refuse to disclose certain information to the applicants. The application also seeks review of the recommendations of the Privacy Commissioner (the Commissioner) that the applicants' questions of March 18, 2003, not be answered.
FACTS
[2] On June 26, 2001, the applicants filed applications for access to certain personal information.
[3] On August 16, 2001, the Minister gave the applicants some of the documents sought. Further replies were subsequently sent on October 23, November 5 and December 3, 2001, and January 14, December 2 and December 6, 2002.
[4] The applicants were not satisfied with the information sent by the Minister and filed a complaint with the Commissioner.
[5] The Commissioner conducted an inquiry to determine the validity of the applicants' complaint pursuant to paragraph 29(1)(b) of the Privacy Act, R.S.C. 1985, c. P-21 (the Act). As required in subsection 35(1) of the Act, the Commissioner on March 7, 2003, sent his findings to the applicants, informing them that their complaints were valid but that since the Minister had given them the missing personal information after the complaint was filed it was regarded as settled.
[6] On the information requested but not disclosed by the Minister, the Commissioner informed the applicants that this was information relating to third parties and was therefore exempt under section 26 of the Act.
[7] The Commissioner further informed them that the Embassies of Abidjan and Conakry had no other personal information about them. Visitors' files were only kept for a maximum period of two years after a proceeding. Since this deadline had expired, additional information could not be disclosed since it had been destroyed.
[8] Following receipt of this report by the Commissioner, the applicants, in a letter dated March 18, 2003, sought review of the processing of their personal information applications. The applicants wished the Commissioner to complete a report and answer the questions they raised in their correspondence.
[9] On March 28, 2003, the Commissioner acknowledged receipt of their letter, but stated that the investigation would not be reopened.
[10] On November 17, 2003, the applicants filed the instant application for judicial review pursuant to section 41 of the Act.
[11] The applicants indicated in their notice of application that they were seeking the following relief:
(1) direct the Commissioner to answer all the applicants' questions and sub-questions included in their letter of March 18, 2003;
(2) review the decisions made by the respondents;
(3) direct the Minister to disclose to the applicants information the disclosure of which was denied and to make understandable certain information disclosed in coded form and/or in a language other than that of their application for information;
(4) direct the Minister that all lies, slanders, inaccuracies and incorrect information contained in the applicants' files and any other file or data source of the Minister circulated within the Department of Citizenship and Immigration be corrected or deleted, and that certified true copies of the implementation of this order be submitted to the Court and to the applicants within a maximum period of 30 days;
(5) direct the Minister to submit to the applicants an official letter of apology signed by the Minister himself for all the moral suffering and hardship they have undergone;
(6) direct the Minister to pay the applicants reparations in the form of net monetary compensation of $25,000, awarded in equal shares to each of the applicants, and order the Minister to pay all the costs of this application and reimburse the applicants for all costs, counsel's fees, loss of salary and interest incurred from this application until its conclusion;
(7) direct the Minister to invite the applicants to a meeting at his expense with a sufficiently senior and impartial person with authority to arbitrate and to make decisions, so as to reverse the decision of the Minister's staff and finally put an end to the treatment to which the Minister has unfairly subjected the applicants;
(8) direct the Commissioner to send the applicants an official letter of apology regarding the careless way in which their complaint was handled and the bias shown against them;
(9) issue a severe written reprimand to the Commissioner reminding him of his purpose and his duty to maintain credibility and impartiality in carrying out his functions.
[12] First, it is important to note that this Court's only power in such a matter is to order the disclosure of information when disclosure has been denied contrary to the provisions of the Act (Connolly v. Canada Post Corporation (2000), 197 F.T.R. 161).
[13] It follows that several of the conclusions sought by the applicants clearly cannot be allowed in connection with their application for judicial review. These are the conclusions for damages, a letter of apology from the Minister, the meeting with a [TRANSLATION] "sufficiently senior" person and the request that the content of Citizenship and Immigration Canada's files be amended.
[14] As to the disclosure of documents [TRANSLATION] "in coded form", these are computerized documents. I could not help noticing that the applicants ticked the box "as it is" on the Personal Information Request Form and so this is what the Minister gave them.
[15] As regards the disclosure of certain personal information involving third parties, section 26 of the Act is fully applicable here.
[16] Section 26 reads as follows:
| 26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8.
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26. Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui fait la demande et il est tenu de refuser cette communication dans les cas où elle est interdite en vertu de l'article 8.
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[17] In Mislan v. Canada (Minister of Revenue) (1998), 148 F.T.R. 121, Rothstein J. indicated that the discretionary power exercised under section 26 of the Act to refuse disclosure takes priority over the right of an individual applying for information to have access to the latter.
[18] That is the situation in the case at bar. I am accordingly satisfied that the Minister acted in good faith and in accordance with the Act in processing the access application.
[19] The applicants also sought by their judicial review under section 41 of the Act to obtain review of the Commissioner's recommendations.
[20] The validity of the Commissioner's recommendations is not subject to the Court's powers of review. The precedents on this point are clear and ample.
[21] In a recent case dealing with a similar system covered by the Access to Information Act, the Federal Court of Appeal concluded in Canada (Attorney General) v. Bellemare, [2000] F.C.J. No. 2077 that the Court did not have jurisdiction under section 41 to undertake judicial review of the Commissioner's recommendations. Noël J.A. said:
The application is directed against the decisions of the Information Commissioner refusing to give effect to the complaint against the government institutions concerned. The Act as whole and in particular sections 7, 19, 43, 48, 49 and 50 make it clear that it is the government institution concerned, not the Information Commissioner which, having refused to disclose information requested under the Act, is called upon to justify the refusal. As Stone J.A. stated in Rubin v. Canada (Clerk of the Privy Council), [1974] 2 F.C. 707, at 713:
Nothing in this section appears to bind the head of a government institution to implement any recommendation of the Information Commissioner. The recourse left to a complainant is to apply to the Trial Division for review of the matter, pursuant to section 41 of the Act, whenever the head of a government institution persists in denying a request despite a recommendation made by the Information Commissioner to the contrary.
Section 41 does not provide for a recourse against the Information Commissioner (Wells v. The Minister of Transport et al., T-1729-92, April 19, 1993).
In Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at 421, La Forest J., writing for the majority stated that: "section 41 of the Access to Information Act provides for the review of a decision to refuse access to a record." In Canadian Council of Christian Charities v. Canada, [1999] 4 F.C. 245 at 255, Evans J. (then sitting in the Trial Division) considered the legal principles governing section 41 and held that the decision being reviewed thereunder was the decision of the head of the institution to refuse access, not the Information Commissioner's findings:
. . . it is necessary to consider the standard of review applicable to the Minister's refusal to disclose the information in question. Unlike some analogous provincial statutes, the federal Access to Information Act does not give the Information Commissioner of Canada the statutory authority to decide whether a particular document should be disclosed. Instead, it confers on the Information Commissioner the power to investigate refusals and to make recommendations to the head of the government institution . . . Since the Commissioner's recommendations are not legally binding the decision reviewed by the Federal Court under section 41 is the Minister's not the Information Commissioner's.
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. [Emphasis added.]
[22] These comments are fully applicable here. The applicants cannot by means of their judicial review regarding the Minister's refusal to disclose the information sought obtain judicial review of the Commissioner's recommendations.
[23] Although I understand the applicants' frustrations regarding the cumbersome nature of government, I have to accept the limits of my jurisdiction when dealing with judicial review under section 41 of the Act. I have found no reason to justify intervention by the Court in the case at bar.
[24] For these reasons, the application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed without costs.
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"Danièle Tremblay-Lamer"
J.F.C.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-676-03
STYLE OF CAUSE: MAMIDIE KEÏTA and
BERNARD MICHAUD Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA and
CANADA PRIVACY COMMISSIONER Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 27, 2004
REASONS FOR ORDER AND ORDER BY:
THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
DATED: April 28, 2004
APPEARANCES:
Mamidie Keïta FOR THE APPLICANTS
Bernard Michaud
(for themselves)
Daniel Latulippe FOR THE RESPONDENT
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Sean McGee FOR THE RESPONDENT
Annie G. Berthiaume PRIVACY COMMISSIONER OF CANADA
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada MINISTER OF CITIZENSHIP
Montréal, Quebec AND IMMIGRATION
Nelligan, O'Brien, Payne FOR THE RESPONDENT
Ottawa, Ontario PRIVACY COMMISSIONER OF CANADA
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