Clearwater v. Canada (Minister of Canadian Heritage), docket T-1-99

Date: 19991012

Docket: T-1-99

BETWEEN:

     JOHN MURRAY CLEARWATER

Applicant

-and-

THE MINISTER OF CANADIAN HERITAGE

Respondent

     AMENDED REASONS FOR ORDER

CULLEN, J.:

[1]      This is an application for an order directing the respondent ministries to withdraw certain fees charged pursuant to the Access to Information Act, R.S.C 1985, c. A-1, as amended (hereinafter Act), for documents the applicant requested from the National Archives in 1997 and 1998. The applicant also seeks an order requiring the National Archives to change its policy regarding future fee assessments so as to bring it in line with Treasury Board policy.

---

Facts

[2]      The applicant, John Murray Clearwater, requested copies of documents held by the National Archives of Canada (hereinafter the "NAC") in 1997 and 1998. On receiving each of the applicant"s requests, the NAC wrote to the applicant advising that there would be a fee levied for the processing of the applicant"s requests. The applicant was advised that he would be charged $350 for his 1997 request (request no. 1027-97-A-0079). The material requested amounted to over two thousand pages, and approximately 35 hours of "Preparation time" was assessed by the NAC to process it. The amount charged for his 1998 request (request no. 1027-98-A-00118) was $248.40 and included $70 for the "search/preparation" of almost nine hundred pages of material.

[3]      The applicant filed complaints to the Information Commissioner (hereinafter the "Commissioner") disputing first, the 1997 charges for "Preparation" time (file no. 3100-10238/001) and second, the 1998 charges for "search/preparation" time (file no. 3100-11650/001). The Commissioner found against the applicant in both cases. The applicant filed his Notice of Application with the Court January 4^th , 1999, 42 days after the Commissioner"s findings concerning the 1998 charges and approximately 425 days after the Commissioner"s 1997 findings.

[4]      The documents requested by the applicant in 1997 and in 1998 were classified. Several steps would be involved, therefore, in processing both of the applicant"s requests. Both parties agree that, first, a search might have to be made of the requested documents. Once located, the documents would be reviewed, that is, read by officials. The officials would then highlight any passage(s) deemed sensitive. In the case at bar, these officials were from the Department of National Defence and CSIS. While reviewing and highlighting, the officials might have to produce several copies of the document to help in reviewing it and to serve as file copies; they may be required to incorporate comments made in deciding what is to be severed and they might have to track the document.

[5]      The applicant believes that he was improperly charged in 1997 and 1998 for one or more of the activities mentioned above. He relies on a statement made to him by the President of the Treasury Board [see applicant"s Exhibit L], who wrote, "[u]se of advanced technologies generally reduces the time spent to make documents available to applicants ...". The Department of Justice also wrote the applicant [see applicant"s Exhibit K], stating, "... I agree with you that new technologies, generally speaking, should reduce money and time spent on preparation ... ". The applicant also alluded, at paragraph 5 of his Affidavit, to a conversation in which he alleges he was told that part of the charge assessed against him in 1997 was for time spent incorporating recommendations of CSIS or DFAIT. The applicant, however, offered no evidence at the hearing to support this last allegation.

[6]      The respondent submitted that the applicant, in both 1997 and 1998, was charged for activities other than those mentioned above. What were these charges levied for? Both parties agree that, once the highlighting is complete, a special photocopier, known as an "automatic severing photocopier", is then used to copy each page of the document (through the use of a laser, however, the photocopier would delete, or sever, any of the sensitive, highlighted passages). Although the applicant began by stating that little more than feeding the pages through this photocopier was required, he eventually relented, admitting that certain activities, which he characterized as "quality control", were necessary. It is for this type of activity, the respondent submitted, that the applicant must have been charged for.

[7]      The other activities necessary in preparing a sensitive document for public access were identified by the respondent"s witness, the Director of the Access to Information and Privacy Division of the NAC, in her Affidavit at paragraph 6:

iii) since this machine [the automatic severing photocopier] is now bordering on obsolescence, it is necessary for the clerk to re-examine the severed pages and additional severances may be identified. This additional check is to ensure accuracy and entails additional rephotocopying of pages.

iv) preparation is carried out by hand to completely remove pages where information has been exempted or excluded in entirety. In place of the removed information a page is inserted denoting that the original page has been removed completely and this page is stamped to mark either an exemption or exclusion.

v) the entire release package is then stamped to denote where information had been removed (either exempted or excluded - this includes where sentences or paragraphs have been removed).

With respect to the 1998 charges in particular, this witness also asserted in her Affidavit, at paragraph 11:

... the activities which I considered to be chargeable were those that related directly to the time spent rendering documents available for disclosure which I refer to as the "physical" or "material" preparation of the severed information. In this case, the "preparation" activity is solely "cut and paste" operations.

Legal Issues

[8]      Prior to addressing the issues, I note that the applicant, both in his written submissions and at the hearing, did not pursue the review of the 1997 charges. Despite this, his application does raise the matter of the 1997 charges and their review will, therefore, be dealt with in my reasons for judgment. Accordingly, there are five issues that I will address: first, whether a complaint concerning fees charged under the Act can be properly brought before this Court; second, whether this application as regards the 1997 charges in particular is properly before the Court; third, whether the 1998 charges were properly assessed; fourth, whether section 48 of the Act reverses the onus of proving the legitimacy of the fees onto the shoulders of the respondent and; fifth, costs.

[9]      The applicant applies to the Court pursuant to section 41 of the Act. The first issue before the Court is whether the wording of this provision allows for an appeal of a complaint regarding fees. It should be noted that this was not a contentious issue between the parties. As a jurisdictional issue, however, the Court must address the matter. Section 41 provides:

Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

[10]      On its face, section 41 allows for appeals from the Commissioner only with regards to a refusal of access to a record requested under the Act. In the case at bar, however, the applicant is appealing the levying of a fee, not a refusal of access. The applicant did not address this issue while the respondent cited Rubin v. Canada (Minister of Finance) (1987), 35 D.L.R. (4^th) 517 (F.C.T.D.) (hereinafter Rubin). In that case, Jerome A.C.J. posited, at 521, that complaints dealing with fees might be allowed under section 41.

Without making a formal determination, let us assume that for the purposes of this argument the phrase "a review of the matter" in s. 41 is wide enough to permit me to deal with the present application [concerning fees].

[11]      Being a mere presumption, his Lordship cited no legal precedent; rather he supported this assumption, at 521, with the observation that allowing for appeals concerning fees seemed "quite appropriate". Subsection 10(3) of the Act , however, provides greater support for his Lordship"s position. This provision provides:

10(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.

---

[12]      The time limit relevant to this application is set out in section 7 of the Act, which provides:

7. Where access to a record is requested under this Act, the head of the government institution to which the request is made shall ... within thirty days after the request is received, ...

(b)_if access is to be given, give the person who made the request access to the record or part thereof.

[13]      The applicant requested from the NAC access to certain documents in late August of 1997. Pursuant to section 7, therefore, the NAC had until late in September, assuming no deadline extensions, to give access to the requested documents. Failing this, the NAC would have been deemed by subsection 10(3) to have refused to give access. Because the applicant failed to pay for the assessed levy of $350, the NAC failed to give access to the documents within this period. The NAC must be deemed, therefore, to have refused to give access. Having been deemed to have been refused access, the applicant was right to apply to the Court under section 41.

[14]      The second issue before the Court concerns whether the applicant"s appeal of the 1997 charges has missed the limitation period set out in section 41. Pursuant to this section, the clock begins "after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant" and runs for forty-five days. The Commissioner reported the results of his investigation in a letter to the applicant dated November 3^rd , 1997. It was approximately four hundred and twenty-five days later, on January 4^th, 1999, that the applicant filed his Notice with the Court. This overshoots the forty-five day deadline by over a year. The limitation period may continue to run beyond forty-five days, however, for "such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow."

[15]      There are no cases addressing the principles which govern the discretion to extend the limitation period given to the Court by section 41. As section 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 (as amended by S.C. 1990, c.8, s.5) contains wording, however, that is similar to that found in section 41 of the Act, the former"s jurisprudence is persuasive authority for the principles which the Court is looking for. Section 18.1(2) provides:

18.1(2) An application for judicial review ... shall be made within thirty days ... or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

[16]      In Grewal v. M.E.I., [1985] 2 F.C. 263 (hereinafter Grewal) Thurlow C.J., at 277, listed several criteria relevant in determining whether the Court should exercise its subsection 18.1(2) discretion to extend time, including: 1) whether the applicant intended to apply to the Court within the limitation period set out in the relevant section; 2) the length of the period for which an extension would be required; and 3) whether any and what prejudice to an opposing party would result from an extension being granted. To this list must be added 4) whether the applicant has an arguable case: Council of Canadians v. Canada (Director of Investigation and Research, Competition Act), [1997] F.C. 48.    Note, however, that this list is not exhaustive; as Thurlow C.J. stated, at 277-278:

But, in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered.

[17]      Looking at the first criteria, there was no evidence adduced by the applicant that he intended to apply to the Court within the limitation period set out in section 41 of the Act. Indeed, the evidence shows that, despite being made aware of his right to appeal to this Court in a letter dated November 3^rd, 1997, the applicant was more interested in initiating a writing campaign aimed against various ministries (see applicant"s Exhibits F, G, H, I, M and P). With regard to the second criteria, the period of extension that would be necessary to accommodate the review of the 1997 charges would be over a year. Both of these factors militate against extending the time limit.

[18]      With regard to the third criteria, there was no evidence adduced showing that the respondents would be prejudiced by the granting of an extension. This makes the Court more amenable to granting an extension. Finally, does the applicant have an arguable case?

[19]      The applicant applied for a review of the preparation fee that he was assessed by the NAC for access to certain documents. His grounds for the review are that the respondent ministry "erred in relying upon subsection [sic] 11 of the Act to apply fees."

[20]      Section 11(2) of the Act provides:

11. (2) The head of a government institution to which a request for access to a record is made under this Act may require, in addition to the fee payable under paragraph (1)(a), payment of an amount, calculated in the manner prescribed by regulation, for every hour in excess of five hours that is reasonably required to search for the record or prepare any part of it for disclosure, and may require that the payment be made before access to the record is given.

Treasury Board policy, as found in Implementation Report No. 49 (June 23, 1995) Item 3-Fees, denotes what activities can and cannot be assessed for "preparation" charges:

Determining what constitutes preparation, on the other hand, appears to be somewhat more problematic. Chargeable preparation activities are those that relate directly to the time spent rendering documents available for disclosure to the applicant. This includes the "cut and paste" operations. Time spent on administrative processes, such as producing copies for review purposes, incorporating comments provided during the decision-making process, document tracking and producing file copies of documents, are not considered part of preparation and are therefore not chargeable.

When a document is disclosed in its entirety, both preparation and reproduction activities are reasonably straightforward. Only when the requester has asked for a copy, rather than exercising the right to view the original, would reproduction fees apply. The process becomes more complex when it is determined that the document is likely to contain exemptions. To render the document available for viewing, institutions may have to produce copies so as not to compromise the integrity of the original. While no copying charges can be applied to copies made for review, the time spent preparing the copies to be viewed by the requester could be considered part of the preparation time.

[21]      The applicant is worried that he was charged not for "preparation" activities but for "review" activities. As there is no provision in the Access to Information Regulations , SOR/83-507, as amended, for levying a charge for "review", activities no fee may be levied by the NAC for this type of work. The applicant"s worry seems to have its genesis in two separate opinions. First, the applicant alleged that all activities leading up to photocopying, including highlighting, are part of the "review" process and therefore not assessable. Second, the applicant alleged that no "preparation" activities are required when using an automatic severing photocopier. In the face of the respondents submissions, however, he relented, admitting that some "quality control" might be required during this later, "preparation" phase.

[22]      As evidence supporting his submissions, the applicant seems to have relied on two general statements issued by separate government officials and stating that automatic severing photocopiers can reduce the time it takes for "preparation" activities. He also relied on a statement that he alleges a government official made to him admitting that part of the charge assessed against him in 1997 was for time spent "incorporating recommendations" of CSIS or DFAIT - clearly an activity which falls under the "review" heading and which is, therefore, non-assessable. Finally, he continued to assert that, logically, he must have been improperly charged for review activities as there were minimal, if any, preparation activities - including "quality control", to be charged for.

[23]      The Commissioner asserted in a letter to the applicant dated November 3^rd, 1997 that automatic severing photocopiers in general continued to leave some preparation work to do. The respondents" witness also stated in her Affidavit at paragraph 6:

iii) since this machine [the automatic severing photocopier] is now bordering on obsolescence, it is necessary for the clerk to re-examine the severed pages and additional severances may be identified. This additional check is to ensure accuracy and entails additional rephotocopying of pages.

iv) preparation is carried out by hand to completely remove pages where information has been exempted or excluded in entirety. In place of the removed information a page is inserted denoting that the original page has been removed completely and this page is stamped to mark either an exemption or exclusion.

v) the entire release package is then stamped to denote where information had been removed (either exempted or excluded - this includes where sentences or paragraphs have been removed).

[24]      The applicant offered an opinion of what the process entails but cited as support only ambiguous, sweeping, statements from Ministers and the President of the Treasury Board. He also alleged that an official admitted that he was being charged for "review" activities but offered no evidence of this admission. This is very little on which to conclude that the applicant was charged for anything other than "preparation" time, especially in light of the evidence adduced by the respondent"s witness describing in detail how there continues to be ample "preparation" activity to do despite that the NAC uses an automatic severing photocopier. Added to this, the applicant agreed that some "preparation" activities remain to complete despite the use at the NAC of the high-tech photocopier.

[25]      As mentioned above, the applicant"s case must be arguable for the Court to exercise its discretion to extend time. In LeBlanc v. National Bank of Canada , [1994] 1 F.C. 81, MacKay J. wrote, at p. 92:

While the Court, in considering an extension of time, must not weigh finally the merits of the case, the case law is clear that the Court must be persuaded that the applicant has a reasonable chance of success in an arguable case.

Unfortunately for the applicant, there is very little evidentiary basis to his claim of a breach of section 11. The strongest evidence buttressing the applicant"s allegations concerning "Preparation" charges amounts only to conjecture. The statements made by the Ministers add nothing. There must be more evidence before there can be a reasonable chance of the applicant proving that he was assessed for activities that fall outside those envisioned by section 11 and Treasury Board policy. Furthermore, as the applicant never intended to apply to the Court within the limitation period set out in section 41 of the Act and as a year"s extension would be required, it is clear that this is not an occasion for the Court to exercise its discretion, under section 41, to extend the limitation period.

[26]      The next issue before the Court concerns the 1998 charges levied against the applicant for which he seeks a review. As the same evidentiary inadequacies exist with regards to the 1998 section of the review as with those concerning the 1997 charges, much of what has been written already can be applied to the 1998 charges. In fact, while the applicant has the same dearth of evidence, the respondent"s witness submitted evidence, in her Affidavit at paragraph 11, relating in particular to the 1998 charges:

... the activities which I considered to be chargeable were those that related directly to the time spent rendering documents available for disclosure which I refer to as the "physical" or "material" preparation of the severed information. In this case, the "preparation" activity is solely "cut and paste" operations.

It is true that the Commissioner"s 1998 findings allude to the applicant being charged for "marking pages to be photocopied" (see applicant"s Exhibit U). The applicant, too, asserted that he must have been charged for "marking" and further submitted that marking is not assessable as it is merely the physical manifestation of an "intellectual process" (by which I understand him to mean reading or reviewing). If the NAC did, indeed, charge for "marking", however, Treasury Board policy clearly allows them to do so:

To render the document available for viewing, institutions may have to produce copies so as not to compromise the integrity of the original. While no copying charges can be applied to copies made for review, the time spent preparing the copies to be viewed by the requester could be considered part of the preparation time.

In any event, nothing that the applicant asserted could shake the clear evidence in the Affidavit of the respondent"s witness. I find, therefore, that the applicant was charged for the activities as set out in paragraph 11 of the Affidavit and I find that "cut and paste" activities fall within section 11 of the Act and the relevant Treasury Board policy as assessable activities.

[27]      The fourth issue before the Court concerns the reverse onus which section 48 of the Act imposes on the respondent and to which the applicant alludes to in his application. This section provides:

48._In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.

The applicant made no submissions with regards to this matter and it is not clear that it is relevant to the case at bar. Only by analogizing a "refusal to disclose" with the "levying of fees" could section 48 be relevant and force the burden of establishing the legitimacy of the fees onto the respondent. There is, however, no authority for making such an analogy and, in the absence of submissions, the Court makes no finding concerning the matter.

[28]      In addition to the withdrawal of fees, the applicant asked for an order requiring the NAC to change its policy regarding future fee assessments. As this type of relief is beyond the purview of the Court"s authority, this order cannot be considered.

[29]      Based on the foregoing analysis, I conclude that this application for judicial review must be dismissed in its entirety.

[30]      As to the issue of costs, the applicant submitted that the Court should award him costs pursuant to subsection 53(2) of the Act. Subsection 53(2) provides:

(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.

The application did broach the issue of whether fee complaints can be accommodated under section 41 of the Act. This issue, however, as witnessed by Rubin, supra, is not new to the Court. Neither is the issue of whether to extend time pursuant to section 41 of the Act, as witnessed by Grewal, supra. In addition, the applicant seems to have become confused with the proper focus of this review, wanting the Court, at times, to censure various Ministers rather than the Commissioner"s decisions. In contrast, I was impressed with both the oral and written submissions of counsel for the respondent. Naturally, they too asked for costs. I do not consider, however, that the circumstances require the assessment of costs.

Ottawa, Ontario

October 12, 1999.

B. Cullen

J.F.C.C.