Date: 20020619
Docket: T-2029-99
Neutral citation: 2002 FCT 692
OTTAWA, ONTARIO, JUNE 19, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
NEWFOUNDLAND POWER INC.
Plaintiff
- and -
MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER AND ORDER
[1] Newfoundland Power Inc. (the "plaintiff") is asking the Court, pursuant to s. 41 of the Access to Information Act, R.S.C. 1985, c. A-1 (the "Act"), to review a decision by the Minister of National Revenue (the "defendant") refusing it complete disclosure of an internal memorandum (the "memorandum") signed jointly by two managers employed by the defendant.
[2] The defendant relied on the exemption contained in paragraph 21(1)(b) of the Act, which reads as follows:
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21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
[...]
(b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown,
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21. (1) Le responsable d'une institution fédérale peut refuser la communication de documents datés de moins de vingt ans lors de la demande et contenant:
[...]
b) des comptes rendus de consultations ou délibérations où sont concernés des cadres ou employés d'une institution fédérale, un ministre ou son personnel;
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[3] As Evans J., as he then was, noted in Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245, at 262:
. . . most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or in (b) of subsection 21(1).
[4] Additionally, in Le Nouveau Petit Robert (text revised and expanded under the supervision of Josette Rey-Debove and Alain Rey, Paris, 1993), there is the following definition of the word "délibération" [deliberation]:
[TRANSLATION]
1. Action of deliberating with other persons. Putting a question for deliberation. Decision taken after deliberation. Deliberation of an assembly, jury. Interminable deliberations. 2. Conscious, careful consideration before deciding whether act seen as possible should be done. Decision taken after mature deliberation. Without deliberation: without thinking.
[5] I consider that the analysis of various strategic or legal alternatives, and any recommendation made by managers or employees of the defendant regarding the position the latter should take on a taxpayer's notice of objection, are clearly covered by paragraph 21(1)(b) of the Act. Having reviewed the content of the memorandum, I conclude that it contains "deliberations" and that the defendant may legally refuse to disclose it under paragraph 21(1)(b) of the Act.
[6] According to the evidence entered in the record by the person responsible, Bernice B. Gorner, it appears that the latter undertook a painstaking examination of the memorandum to determine what information was exempt under paragraph 21(1)(b) of the Act. She also applied the severance principles as required s. 25 of the Act, which reads as follows:
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25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
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25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
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[7] In this regard, Ms. Gorner indicated in her second confidential affidavit that certain parts of the memorandum could now be disclosed to the plaintiff without adversely affecting the deliberations and consultations of the defendant's managers or employees in the process undertaken to resolve outstanding matters in dispute with the taxpayer. Since the instant application was filed the defendant, exercising his discretion under paragraph 21(1)(b) of the Act, has accordingly disclosed to the plaintiff the information which was not included when an initial edited version of the memorandum was earlier released.
[8] In the case at bar, as there is no contrary evidence and no evidence of bad faith by the defendant, I feel that the latter properly exercised his discretionary authority. The way in which he exercised his discretion under paragraph 21(1)(b) seems to me to be completely consistent with the applicable rules of law: Canadian Council of Christian Charities, supra, at 256-257; Rubin v. Canada (Canadian Mortgage and Housing Corporation), [1989] 1 F.C. 265 (F.C.A.), at 274-75; Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at 457-58; Rubin v. Canada (Minister of Health), [2001] F.C.J. No. 1298, at para. 54.
[9] As I have found that the defendant's refusal to disclose the entire content of the memorandum was justified under the Act, the plaintiff's application must be dismissed. The defendant will accordingly be entitled to his costs.
ORDER
The application for review made by the defendant pursuant to s. 41 of the Access to Information Act is dismissed, with costs to the defendant.
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"Luc Martineau"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-2029-99
STYLE OF CAUSE: Newfoundland Power Inc. and Minister of National Revenue
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 13, 2002
REASONS FOR ORDER AND ORDER BY: MARTINEAU J.
DATED: June 19, 2002
APPEARANCES:
Jean Groleau PLAINTIFF
Bernard Letarte DEFENDANT
SOLICITORS OF RECORD:
Jean Groleau PLAINTIFF
Montréal, Quebec
Morris Rosenberg DEFENDANT
Deputy Attorney General of Canada
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