Canada (Attorney General) v. Canada (Information Commissioner), 2002 FCT 136

                                                                    Date: 20020206

                                                                Dockets: T-2276-00

                                                                         T-2358-00

                                                 Neutral Citation: 2002 FCT 136

BETWEEN:

             ATTORNEY GENERAL OF CANADA and JANICE COCHRANE

                                                                         Applicants,

                                      - and -

                     INFORMATION COMMISSIONER OF CANADA

                                                                        Respondent.

                                REASONS FOR ORDER

KELEN J.

[1]    This matter involves two applications for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7 to set aside the respondent's two subpoenas duces tecum directed to Ms. Janice Cochrane, Deputy Minister, Department of Citizenship and Immigration.

THE TWO SUBPOENAS

[2]    The two subpoenas ducus tecum which are the subject of each respective application for judicial review are:

• i.                       Order with Respect to Production of Records to Janice Cochrane, Deputy Minister, Citizenship and Immigration Canada dated November 22, 2000 from J. Alan Leadbeater, Deputy Information Commissioner of Canada; and,
• ii.                     Order with Respect to Production of Records to Ms. Janice Cochrane, Deputy Minister, Citizenship and Immigration Canada dated December 11, 2000 from J. Alan Leadbeater, Deputy Information Commissioner of Canada.

Both of the Orders with Respect to Production of Records, the subpoenas duces tecum here in question, require production of the same information.

FACTS

(a) Access requests and extension of time

[3]         In March, 2000, a person who will be referred to as the "access requester", filed with the Department of Citizenship and Immigration ("CIC"), 55 requests for access to records under the Access to Information Act, R.S.C. 1985 c. A-1 ("the Act"). The parties agreed that these requests involve approximately 270,000 pages of documents. Under section 7(a) of the Act, CIC has 30 days after the request is received to give written notice to the access requester. CIC extended the time limit to three years under subsection 9(1)(a) of the Act which reads:

Extension of time limits

9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if

(a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,

Prorogation du délai

9.(1) Le responsable d'une institution fédérale peut proroger le délai mentionné à l'article 7 ou au paragraphe 8(1) d'une période que justifient les circonstances dans les cas où :

(a) l'observation du délai entraverait de façon sérieuse le fonctionnement de l'institution en raison soit du grand nombre de documents demandés, soit de l'ampleur des recherches à effectuer pour donner suite à la demande;

(b) The Complaints

[4]    Pursuant to subsection 30(1)(c) of the Act, the access requester filed complaints with the Information Commissioner that the extended time limits are unreasonable. Subsection 30(1)(c) reads:

Receipt and Investigation of Complaints

30. (1) [...] the Information Commissioner shall receive and investigate complaints

(c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable.

Réception des plaintes et enquêtes

30. (1) [...] le Commissaire à l'information reçoit les plaintes et fait enquête sur les plaintes :

(c) déposées par des personnes qui ont demandé des documents don't les délais de communication ont étéprorogés en vertu de l'article 9 et qui considèrent la prorogation comme abusive;

(c) First Investigation

[5]    The respondent conducted an investigation and on September 20, 2000 sent a letter to the Deputy Minister, Ms. Janice Cochrane, which states:

I write to report the results of my investigation of 35 unresolved complaints against your department under the Access to Information Act (the Act).

[6]    The letter further states:

Specifically, your department continues to take the position that the majority of the requests require three-year extensions for processing. In my view, extensions of this length would be unnecessary if reasonable resources were devoted to the task.

This letter clearly is a report of the results of the investigation into the complaints that the extension of the time limits are unreasonable. The report divided the complaints into two categories contained in Annex A and Annex B. With respect to both categories, the respondent recommended in his letter:

I find the complaints to be well-founded and recommend that CIC ... respond to the requests for documents in Annex A by November 6, 2000 and in Annex B by December 6, 2000.

[7]    In the letter, the respondent advised the Deputy Minister that he will compel the production of the records if his recommendation is not followed:

If the requests listed in Annex' A and B have not been answered by the recommended dates, I will have no choice but to compel your Minister or delegate to provide the relevant records to me along with a detailed line-by-line justification for the refusal to disclose. This way of proceeding is my only option as a result of the Decision of the Federal Court of Appeal in Information Commissioner of Canada v. Minister of National Defence, (A-785-96)."

[8]    On September 29, 2000 the Deputy Minister replied to the respondent that CIC will respond to the requests in Annex A by November 6, 2000 as recommended, but that the requests in Annex B involve a volume of materials which:

[...]when taken together, totals more than half a million pages [...] thus, I must respectfully inform you that we cannot commit to the processing of all Annex B documents by December 6, 2000 as you recommend. The volume of documents covered in this Annex is extremely high and far exceeds the annual processing capacity of our Public Rights Directorate. In addition, it would significantly

impact on the operation of the program. We are therefore maintaining the three-year extensions for this group of files.

(d) First Subpoena

[9]    On November 22, 2000 the respondent subpoenaed the records in the form of an "Order With Respect to Production of Records", pursuant to section 36 of the Act, requiring the Deputy Minister produce all of the records to the respondent by December 7, 2000.

[10] On December 7, 2000 the applicants commenced this application to set aside the subpoena. The respondent's deputy, Mr. Alan Leadbeater, sent a letter to the Deputy Minister dated December 7, 2000 which stated:

[...] I understand that you have instructed the Attorney General of Canada to challenge the lawfulness of the order (Order for Production of documents dated November 22) on the ground that the related investigations are closed and, therefore, the Information Commissioner has no authority to exercise his section 36 powers (the power to summon witnesses, documents, inter alia).

and,

[...] for greater certainty, and to avoid further delays, I have decided to exercise the power in subsection 30(3) to initiate complaints with respect to the files listed in Annex A to my Order of November 22^nd. I am satisfied that there are reasonable grounds to investigate your department's deemed refusal to disclose the requested records in some cases and the actual refusal to disclose requested records in others. (underling added)

In this letter the respondent advised the Deputy Minister that he will commence a new investigation to avoid the legal challenge that his first investigation has been completed so that he did not have the jurisdiction to issue the first subpoena.                   

(e) Second Investigation and Subpoena for Production of Documents

[11] Four days after the legal action, on December 11, 2000, the respondent's Deputy, Mr. Alan Leadbeater, issued a second subpoena (Order with respect to Production of Records) directed to Ms. Janice Cochrane, Deputy Minister, ordering that the same documents referred to in the first Order be produced by December 14, 2000.

[12] The respondent states that he self-initiated a new complaint with respect to the matter in accordance with his authority under subsection 30(3) of the Act, which reads:

Information Commissioner may initiate complaint

30. (3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under the Act, the Commissioner may initiate a complaint in respect thereof.

Plaintes émanant du Commissaire l'information

30. (3) Le Commissaire à l'information peut lui-même prendre l'initiative d'une plainte s'il a des motifs raisonnables de croire qu'une enquête devrait être menée sur une question relative à la demande ou à l'obtention de documents en vertu de la présente loi.

The first complaint and investigation was pursuant to subsection 30(1)(c), i.e. whether the extension period was unreasonable. The self-initiated second complaint is whether the unreasonable extension constitutes a "deemed refusal" to give access to the records.                      

[13] On December 20, 2000 the application for judicial review was filed to review the second subpoena. (Mr. Justice Nadon ordered a stay of the two Orders for production of records pending the resolution of these applications for judicial review.)

ISSUES

[14] Is the first subpoena duces tecum dated November 22, 2000 in excess of the jurisdiction of the respondent in that the respondent had completed his investigation when he reported the results of his investigation on September 20, 2000; and thereby had exercised and exhausted his jurisdiction in relation to that investigation so that the Information Commissioner no longer has the power under section 36 to subpoena in relation to that investigation?

[15] Did the respondent have the jurisdiction to issue the second subpoena duces tecum dated December 11, 2000 on the basis that the respondent self-initiated a new complaint pursuant to subsection 30(3) of the Act, arising from the results of his first investigation, namely that the extension of time was unreasonable and therefore constituted a "deemed refusal"? The underlying question is whether an "unreasonable extension" is a "deemed refusal" under the Act.

STANDARD OF REVIEW

[16]       The appropriate standard of review for decisions of the Information Commissioner to proceed with an investigation was set out by Campbell J. in Rowat v. Canada (Information Commissioner), [2000] F.C.J. No. 832 (F.C.T.D.):

Mr. Rowat argues that s.30(1)(f) does not provide jurisdiction to investigate the complaints made and the standard of review of the Commissioner's decision to proceed, being one of jurisdiction, is correctness. I agree with this submission [See C.P. Ltd. v. Matsqui Indian Bands, [1995] 1 S.C.R. 3 at pp. 25-26].

[17] The Supreme Court of Canada in the C.P. case held that administrative tribunals can examine the boundaries of their jurisdiction although their decisions in this regard lack the force of res judicata. Their determinations are reviewable on a correctness standard and will generally be afforded little deference. Therefore, the appropriate standard of review in this matter is that of correctness.

ANALYSIS

(a) First subpoena

[18] Under subsection 9(1)(a) of the Act, the government institution may extend the time for a reasonable period if the request is for a large number of documents, necessitates a search through a large number of files, and meeting the original time limit would unreasonably interfere with the operations of the government department. In this case, the 55 access requests involve processing approximately 270,000 pages. The CIC decided upon the extension of time in view of the number of documents to be processed and the 5000 other access requests which CIC had received in that fiscal year.

[19] The access requester filed complaints with the respondent under subsection 30(1)(c) of the Act that the extension was unreasonable.

[20] The respondent investigated the complaint and provided the government institution with a report dated September 20, 2000 containing the findings of the investigation and recommendations in accordance with subsection 37(1) of the Act which reads:             

Findings and recommendations of

Information Commissioner

37. (1) If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the

Commissioner shall provide the head of the government institution that has control of the record with a report containing

(a) the findings of the investigation and any recommendations that theCommissioner considers appropriate; and

(b) where appropriate, a request that, within a time specified in the report, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.

Conclusions et recommandations du Commissaire à l'information

37. (1) Dans les cas où il conclut au bien-fondé d'une plainte portant sur un document, le Commissaire à l'information adresse au responsable de l'institution fédérale de qui relève le document un rapport où :

a) il présente les conclusions de son enquête ainsi que les recommandations qu'il juge indiquées;

b) il demande, s'il le juge à propos, au responsable de lui donner avis, dans un délai déterminé, soit des mesures prises ou envisagées pour la mise en oeuvre de ses recommandations, soit des motifs invoqués pour ne pas y donner suite.

The report in a letter dated September 20, 2000 from the respondent to the Deputy Minister reported that the three-year extension was an unreasonable length of time, and recommended that the documents be produced by December 6, 2000.

[21] The response dated September 29, 2000 from the Deputy Minister advised that it would not be possible to comply with the recommendation that the documents be produced by December 6, 2000. The respondent issued the "Order With Respect to Production of Records"dated November 22, 2000 pursuant to the authority of the respondent's power in section 36 of the Act to summons persons and documents in the course of an investigation of complaints.

[22] The power of the respondent to subpoena documents is set out in subsections 36(1)(a) and 36(2) of the Act:

Powers of Information Commissioner in carrying out investigations

36. (1) The Information Commissioner has, in relation to the carrying out of the investigation of any complaint under this Act, power

(a) to summon and enforce the appearance of persons before the Information Commissioner and compel them to give oral or written evidence on oath and to produce such documents and things as the Commissioner deems requisite to the full investigation and consideration of the complaint, in the same manner and to the same extent as a superior court of record;

Access to records                  

36. (2)Notwithstanding any other Act of Parliament or any privilege under the law of

evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

Pouvoirs du Commissaire à l'information pour la tenue des enquêtes

36. (1) Le Commissaire à l'information a, pour l'instruction des plaintes déposées en vertu de la présente loi, le pouvoir :

a) d'assigner et de contraindre des témoins à comparaître devant lui, à déposer verbalement ou par écrit sous la foi du serment et à produire les pièces qu'il juge indispensables pour instruire et examiner à fond les plaintes don't il est saisi, de la même façon et dans la même mesure qu'une cour supérieure d'archives;

Accès aux documents

36. (2) Nonobstant toute autre loi fédérale et toute immunité reconnue par le droit de la preuve, le Commissaire à l'information a, pour les enquêtes qu'il mène en vertu de la présente loi, accèss à tous les documents qui relèvent d'une institution fédérale et auxquels la présente loi s'applique; aucun de ces documents ne peut, pour quelque motif que ce soit, lui être refusé.

[23] The subpoena power is "in relation to the carrying out of the investigation". In my opinion, when the investigation is completed, the subpoena power is exhausted. I find that the investigation with respect to the complaints that the extensions were unreasonable was completed on September 20, 2000, and that the respondent no longer had the jurisdiction to issue the subpoena on November 22, 2000 ordering the production of the records subject of the access requests.

(b) Second Subpoena     

[24] When the applicants challenged the first subpoena on December 7, 2000 on the ground that the respondent exceeded his jurisdiction because the investigation was complete, the respondent advised by letter that he would commence a second investigation under subsection 30(3) of the Act. The respondent's letter to the Deputy Minister dated December 7, 2000 states that the basis of the second investigation is "your department's deemed refusal" to disclose the records. Under the Act, the only "deemed refusal to give access" is in subsection 10(3) of the Act which provides:

Where access is refused

10. (1) Where the head of a government institution refuses to give access to a record requested under this Act or a part thereof, the head of the institution shall state in the notice given under paragraph 7(a)

   (3) Where the head of a government institution fails to give access to a record requested under this Act or a part thereof within the time limits set out in this Act, the head of the institution shall, for the purposes of this Act, be deemed to have refused to give access.

Refus de communication

10. (1) En cas de refus de communication totale ou partielle d'un document demandé en vertu de la présente loi, l'avis prévu à l'alinéa 7a) doit mentionner, d'une part, le droit de la personne qui a fait la demande de déposer une plainte auprès du Commissaire à l'information et, d'autre part :

       (3) Le défaut de communication totale ou partielle d'un document dans les délais prévus par la présente loi vaut décision de refus de communication.

[25] Parliament has clearly provided for "deemed refusals" in section 10(3), but not elsewhere in the Act. A "deemed refusal" is when the department fails to give access to the record within the time limits set out in the Act, i.e. either 30 days as provided in section 7 or an extended time limit under section 9. In my opinion, in this case, the extended time limit has not expired so that there can be no "deemed refusal" to give access. Under the Act there is no provision for the respondent to deem an unreasonable extension of time as a refusal.

(c) Jurisprudence regarding "deemed refusal"

[26] The respondent relies upon Commissionaire à l'information du Canada v. Canada (Ministre de la defence national), [1999] F.C.J. No. 522 (F.C.A.) as the authority for finding that the extension of time is a "deemed refusal". In that case, the Federal Court of Appeal considered a completely different factual scenario, i.e. the government institution extended by 120 days the time limit of 30 days set out in the Act. Upon expiration of the extended time limit, the institution still had not made its decision about access. The access requester made complaints to the respondent on the ground that the institution had not met the extended deadline. Madam Justice Desjardins, giving the Reasons for Judgment of the Court, held at paragraph 19:

Under the terms of section 10(3) of the Act, where a government institution fails to give access to a record within a time limit 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.

In that case, the government institution had failed to give access within the 120 day extended time limit. Thereafter there is a "deemed refusal to give access" in accordance with subsection 10(3) of the Act. In the case at bar, the time limit for giving access has been extended to three years and that time period has not yet passed. Accordingly, there is no "deemed refusal to give

access"since the government institution has not refused to give access within the extended time limit.

[27] Similarly, Mr. Justice Strayer in X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (T.D.) held at page 676:

[...] but that does not mean that the Federal Court has the responsibility of second-guessing the department head on such matters as whether a delay beyond 30 days, as in this case, was reasonable. The Court has power to entertain an application by a private party in support of access only under section 41, and under that section only by "person has been refused access to a record".

It is clear by subsection 9(1) that an extension of time for response by the head of an institution is not a refusal of access. It is obviously not on its face a refusal to disclose. It only leads to a "deemed refusal" under subsection 10(3) if no decision is taken within the extended time period and no disclosure is made.

In X v. Canada, supra, the time period had been extended to 270 days, and the Court held until the extended time period expires, there is no "deemed refusal". Justice Strayer held that the Federal Court does not have the responsibility to "second-guess"whether the extension is reasonable. The respondent has the power to receive and investigate a complaint that an extension of time is not reasonable. But the respondent does not have power beyond reporting his findings and recommendations with respect to the reasonableness of the extension.

[28] The respondent made such a report with his findings and recommendations in this case on December 20, 2000. That was the end of the respondent's jurisdiction with respect to the investigation of the requester's complaints.

[29] Accordingly, the respondent did not have the jurisdiction to self-initiate a complaint with respect a "deemed refusal", and did not have the jurisdiction to issue the second subpoena in relation to the second investigation. If the second investigation is illegal so is the second subpoena.

(d) Allegation of Abuse

[30] The Attorney General of Canada alleges that the subpoenas to produce documents are an abuse of process in that:

i.     the respondent cannot initiate his own complaint into the same matter on which he has just concluded an investigation;

ii.    the purpose of the second investigation is not to investigate new facts, but to issue a subpoena since the first subpoena is illegal; and,           

iii. the subpoena "is nothing but a disguised attempt [...] to enforce compliance with ... (the Respondent's) recommendation when the Act does not grant him this power".

The Court agrees that it is not proper for the respondent to initiate a new complaint, and launch a new investigation, into the same matter on which the respondent has just concluded a first investigation. The Court also agrees that it is not proper use of the subpoena power to summon the 270,000 pages of documents which CIC stated it could not process on an immediate basis.    The respondent is effectively requiring the department to produce the documents which the respondent had recommended be produced by December 6, 2000, but which the Deputy Minister respectfully said was not possible.

(e) Role of Respondent

[31] In Rowat v. Canada (Information Commissioner), [2000] F.C.J. No. 832, (F.C.T.D.), Campbell J. at paragraph 28 referred to the role of the respondent by quoting from the respondent's argument in that case:

The Commissioner is a neutral and independent ombudsofficer charged with supervising the administration of the Access to Information Act and government action in relation thereto and is limited to making recommendations to government institutions or to Parliament regarding the disclosure of government information and the administration of the Act.

The Commissioner is not empowered to order government institutions to implement his recommendations. His role is that of a fact-finder who makes recommendations to settle disputes [...]

In the case at bar, the respondent overstepped his role and legal jurisdiction by ordering a government institution to implement his recommendations when the government institution indicated that it would not be able to implement the recommendations.

(f) Respondent's Power to Report to Parliament

[32] The respondent has power in sections 38 and 39 of the Act to report to Parliament on any matter within the scope of his powers, duties, and functions. The respondent is an independent ombudsman-type officer who can receive complaints, initiate complaints, and carry out investigations which can then be followed by discussions with departments with a view to resolving the problem. The respondent also reports to Parliament and designated committees of both Houses. In the case of complaints that an extension of time is unreasonable, the respondent

has the power to investigate such complaints and make findings and recommendations to the department involved. The respondent does not have the power to seek judicial review of whether an extension of time is unreasonable. The only other power the respondent has is to report to Parliament that a particular department is not acting in a reasonable manner with respect to the objectives of the Act. See X v. Canada (Minster of National Defence), supra, at 677 per Strayer J. (as he then was). The respondent can publically make highly critical comments about government departments.

[33] In this case, the respondent made a Special Report to Parliament dated May, 2000 which identified CIC as causing serious delays, and gave CIC a failing mark for its performance. The Report stated:

Six departments were identified [...] as departments with serious delay problems. The departments were Citizenship and Immigration Canada (CIC) [...] In the 1999 report card, CIC received a grade of F [...]

The Report noted that CIC has allocated additional resources to its Access to Information Branch, but that for the past two years the number of access requests has increased substantially. The respondent has investigated the alleged unreasonable extensions of time, has made recommendations and has reported the problem to Parliament. That is the end of the respondent's jurisdiction with respect to reasonableness of the extension of time.

CONCLUSION

[34] I have found that:

i.     the first subpoena or Order to produce documents is outside the jurisdiction of the respondent because the respondent had completed his investigation pursuant to subsection 30(1)(c) with respect to the complaints that the three year extension of time was unreasonable;

ii.                     there was no "deemed refusal to provide access" because the extended time periods had not elapsed;

iii.                    the respondent did not have jurisdiction to self-initiate a complaint and investigation pursuant to subsection 30(3) with respect to a "deemed refusal to provide access" because there was clearly no "deemed refusal to provide access" under the Act; and,

iv.                   that the second subpoena or Order to produce documents is outside the jurisdiction of the respondent.

[35]       For these reasons the two subpoenas or Orders for the production of documents were made without jurisdiction and are therefore set aside. Accordingly, these applications for judicial review are allowed with costs to the applicants.

       "Michael A. Kelen"        __________________________

                    Judge                      

Ottawa, Ontario

February 6, 2002