Date: 20091211
Docket: T-1402-09
Citation: 2009 FC 1265
Ottawa, Ontario, this 11th
day of December 2009
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
MICHAEL
DAGG
Applicant
and
MINISTER OF INDUSTRY
Respondent
REASONS FOR ORDER
AND ORDER
[1]
On
November 26, 2009 the applicant brought a motion for declaratory relief and for
costs pursuant to Rule 359 of the Federal Courts Rules, SOR/DORS/98-106.
The matter was heard on December 1, 2009.
[2]
The
underlying application for judicial review was filed on August 21, 2009 pursuant
to section 41 of the Access to Information Act, R.S.C. 1985, c. A-1, (the
“Act”) in respect of an alleged decision by Industry Canada refusing the
applicant’s right to access records requested under subsection 4(1) of the Act.
Issues and Analysis
(1) Jurisdiction: Did the respondent refuse to
disclose the records requested by the applicant such that the Federal Court had
jurisdiction to review the matter pursuant to section 41 of the Act at the time
the application was filed?
[3]
There
are three necessary conditions that must be satisfied in order for this Court
to acquire jurisdiction to review the decision of the head of a government
institution to deny a request pursuant to section 41 of the Act:
i.
A party
has been refused access to a record requested under the Act in whole or in
part;
ii.
The party
has complained to the Information Commissioner in respect of the refusal; and
iii.
The
results of an investigation of the complaint by the Information Commissioner
are reported to the complainant pursuant to subsection 37(2).
[4]
From
the date of receipt of the Information Commissioner’s report, the applicant has
45 days to file an application for review of the matter.
[5]
On
this motion, only the first condition, whether there has been a refusal by the
respondent to provide access to a record, is disputed by the parties.
[6]
On
January 15, 2008, the applicant made a request for access to information to
Industry Canada, the
respondent, which was received on February 6, 2008. Pursuant to section 7 of
the Act, the respondent then had 30 days to notify the applicant of its
response. The respondent invoked its discretion under subsection 9(1) of the Act
to extend the time limit in respect of the request. On March 13, 2008, the
respondent informed the applicant that it required an additional 150 days in
order to process the request, which the applicant did not oppose. On October
27, 2008, some two months after the expiration of the additional 150-day delay,
the applicant complained to the Office of the Information Commissioner of Canada (the “OIC”)
regarding the failure of the respondent to disclose the records requested.
[7]
The
OIC proceeded to investigate the complaint and nine months later, on July 10,
2009, the OIC informed the applicant that indeed, the respondent had no “lawful
justification” for failing to meet the deadline of 180 days and this action
placed the respondent in a state of deemed refusal pursuant to subsection 10(3)
of the Act. The OIC informed the applicant that the respondent had provided the
OIC with a work plan and commitment date for responding to the request: “[the
respondent] is making every effort to respond to your request by September 28,
2009”. On the basis of the commitment date and the work plan, the OIC deemed
the complaint to be resolved.
[8]
In
concluding the report to the applicant, the OIC described two potential avenues
of recourse that the applicant could elect to take depending on the
circumstances:
Should you not receive a final response
on or by the date provided, you may wish to file a new delay complaint
with our office. Or if you do not agree with our assessment that the
commitment given to us by the IC constitutes a reasonable resolution to your
complaint, you do, of course, have another avenue of recourse. Having
now received the report of our investigation, you have the right under
section 41 of the Act to apply to the Federal Court for a review of Industry Canada’s decision to deny you access
to requested records.
Such an application should name the Minister of Industry as respondent and it
must be filed with the Court within 45 days of receiving this letter.
(Emphasis
is mine.)
[9]
The
applicant did not wait to see if the respondent would comply with the
commitment date, which was some 35 days after the expiration of the 45-day time
limitation noted in the report. Rather, on August 21, 2009, the applicant chose
to bring an application for judicial review to comply with the 45-day time
limitation. Importantly, the respondent ultimately complied with the request
for access to records on September 28, 2009. The records were sent by regular
mail and the applicant received them sometime in early October 2009.
[10]
The
applicant has chosen not to discontinue the application but rather to seek a
declaration that his application has become moot and to request costs of the
application pursuant to section 53 of the Act and Rule 400 of the Federal
Courts Rules, on the basis that but for the respondent’s unlawful delay,
the applicant would not have brought a section 41 application and incurred the
legal costs of doing so.
[11]
The
purpose of the Act is to provide a right of access to information, on request, to
any record under the control of a government institution subject to
other sections in the Act (see sections 2 and 4). The Act sets out the
timelines by which the government must respond to the requesting party as to
whether or not access will be granted (see sections 7 and 9). All manner of
information, except those limited exemptions or exclusions to the Act, may be
released (see sections 13 to 26). Subsection 10(3) is a deemed refusal
provision that applies where an institution fails to provide access within the
time limits set out in the Act:
|
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.
|
10. (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.
|
There are three cases that provide
instructive discussion on the legal significance of a deemed refusal.
[12]
In
X v. Canada (Minister of National Defence) (1990), 41
F.T.R. 16, (referred to as X(1) from now on) Justice Jean-Eudes Dubé
interpreted subsection 10(3) as signalling Parliament’s intent that the Act not
be “frustrated by bureaucratic procrastination: foot-dragging equates refusal.”
The Court set out its reasons as follows at paragraph 8:
The
purpose of the Access to Information Act, as stipulated under section 2,
is to provide the right of access to information in records under the control
of a government institution in accordance with the principle that government
information should be available to the public. In keeping with that general
intent, subsection 10(3) provides that where the head of a government
institution fails to give access to a record requested within the time limits
set out in the Act, he shall be deemed to have refused to give access. Thus the
intention of the Act, as framed, is clearly to ensure that the requestors’
access to information is not frustrated by bureaucratic procrastination:
foot-dragging equates refusal.
[13]
Justice
Dubé declined to grant judgment because access to the records had been provided
by the time of the hearing and further declined to grant declaratory relief.
Thus, the Court denied the application but nevertheless ordered taxable legal costs that
“may have been incurred by the applicant” payable by the respondent.
[14]
The
same applicant as in X(1), supra, brought another application
against the Department of National Defence requesting that the Court consider
the reasonableness of the Department to invoke section 9 of the Act and extend
the time limit for providing access by 270 days (X v. Canada (Minister of
National Defence), [1991] 1 F.C. 670, referred to from now on as X(2)).
The respondent argued that the Court had no jurisdiction to hear the
application because the role of the Court is to hear applications by persons
who have actually been refused access to a record. Prior to the hearing there
had been disclosure of the records and the disclosure was prior to the
self-imposed deadline the respondent had invoked through section 9 of the Act.
[15]
Justice
Barry Strayer, in X(2), dismissed the application because it was clear
to the Court that the decision a government institution makes to invoke
subsection 9(1) is not reviewable at the Federal Court under section 41 of the Act:
. . . 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.
[16]
The
Court acknowledged that not every decision taken by heads of institutions is
subject to judicial review. Justice Strayer determined that the Federal Court
has been granted a narrow scope of review under the Act at pages 677 and 678:
This
history and framework confirms the somewhat narrow scope of the new powers
specifically given to the Federal Court: under section 41, it can hear the
application of a person (or, under section 42, of the Information Commissioner)
where there has been actual or deemed refusal of access to a record; and
under section 44 it can hear the application of a “third party” who objects to
disclosure by the head of an institution of a record which may affect that
third party. The applicant here does not come within section 41, the only
section relevant to the present situation and the one on which he relies,
because he has not been refused access: access was delayed but in fact has long
since been given to him and within the time limits permitted by the statute.
That being the case there can be no remedy granted under sections 49 or 50, the
sections authorizing appropriate orders by the Court, because those remedial
powers arise only where the Court finds a refusal to disclose a record. . . .
(Emphasis
is mine.)
Consequently, a deemed refusal situation is
one of the two grounds upon which an applicant can seek judicial review: the
other ground is an actual refusal. In X(2) the Court concluded that
there was “neither refusal of access nor deemed refusal of access, because
access was given before even half of the extended time period had expired”. The
extended time period refers to the section 9 extension the Minister had invoked
in this case. The only remedies permitted by sections 49 and 50 relate to the
disclosure of the record. The application was consequently dismissed.
[17]
The
third case that discusses the Court’s jurisdiction to hear an application in a
deemed refusal situation is Justice Yves de Montigny’s recent decision in Statham v.
President of the Canadian Broadcasting Corporation et al., 2009 FC
1028. In Statham, it is significant that the Court interprets the Act as
granting the power to cure a deemed refusal to the Office of the Information
Commissioner upon conclusion of its investigation. This conclusion effectively
precludes the applicant from applying to the Federal Court under section 41 of
the Act if the OIC has approved a future commitment date from the government
institution.
[18]
The
facts of Statham are similar to the case at bar. Mr. Statham applied to
the Federal Court pursuant to section 41 of the Act for an order that
the President of the CBC disclose documents requested and a declaration that
CBC had acted unreasonably during the events that lead to the application. Mr.
Statham submitted approximately 400 Access to Information requests to the CBC
between September 1, 2007 and December 12, 2007. The CBC failed to acknowledge
receipt of these requests within the 30-day limit mandated by section 7 of the
Act. Unlike the present case it did not claim an extension of time under
section 9 of the Act. Because of the failure to respond Mr. Statham filed
a number of complaints to the OIC. The OIC initiated an investigation of the
CBC on January 9, 2008. The Court noted that CBC repeatedly failed to provide
the OIC with an action plan and frequently changed its commitment date for
responding to requests. At paragraph 7 the Court found that in a meeting
between representatives of the OIC and the CBC on March 28, 2008, the OIC
“proposed what they thought was a reasonable and realistic goal of April 1,
2009” at which time the CBC would be expected to respond to every outstanding
request.
[19]
On
March 31, 2008, the OIC sent three letters to Mr. Statham to report on the
results of the investigation of his complaints. As in the case at bar the OIC
affirmed in the third letter that the institution’s failure to respond to the
requests meant that it was in a “deemed-refusal situation pursuant to
subsection 10(3) of the Act”. As stated in Statham, at paragraph 8, the
OIC also used similar language to indicate why it had concluded the complaint
to be resolved:
. . . the institution has provided
assurances to our office that, through its best efforts, it will respond to all
of the requests […] on or before April 1, 2009. […] I consider this to be a
reasonable commitment on CBC’s part to finalize the processing of all your
listed requests.
While your complaints are valid, I
conclude that they are resolved on the basis that CBC has undertaken to respond
to each request on or before April 1, 2009. As each response is provided to you
by the CBC, in the coming months, you do of course have the right under section
31 of the Act to complain to this office.
In accordance with paragraph 30(1)(a)
and subsection 37(5) of the Act, please be advised that having now received our
report on the results of our investigation with respect to these
deemed-refusals to disclose records requested under the Act, section 41
provides that you have the right to apply to the Federal Court for a review of
the Canadian Broadcasting Corporation’s deemed-refusal to deny you access to
the records you requested. Such an application should name the President of the
Canadian Broadcasting Corporation as respondent and it must be filed with the
Court within 45 days of receiving this letter.
[20]
As
in the facts of the present case, Mr. Statham did not wait to find out
whether CBC would comply with the commitment date, but filed an application for
judicial review on May 18, 2008 in compliance with the 45-day limit to apply to
the Federal Court triggered upon receipt of the OIC report. Also similar to the
present case (as well as X(1), supra and X(2), supra),
the institution had responded to all of the requests by the time of the hearing.
[21]
Justice
de Montigny found the matter to be moot due to the disclosure and exercised his
discretion to hear the application nonetheless (Statham, at paragraph 30).
[22]
I
note, first, that Justice de Montigny appears to narrow the scope of review of
refusals by the Federal Court such that a deemed refusal pursuant to subsection
10(3) is not a refusal for the purposes of section 41. The following paragraphs
of Statham, supra, are important:
[39] . . .
It seems to me the applicant
could not apply to the Court while the CBC was still within the time frame set
by the Commissioner. The Commissioner could have chosen to initiate his
investigation, upon the complaint of the applicant, as if there had been a true
refusal. Just as in the case of Canada Information Commissioner v. Minister
of National Defence, supra, he chose instead to split his
investigation and to try to get a response from the institution, leaving for a
second stage the examination of the merits of whatever response might be
provided. As a result, the applicant could not apply to the Court until April
1, 2009, as it could not yet be said until the expiry of that delay period
granted by the Commissioner that the CBC had refused access to the records.
[40] Section
41 of the Act states that an applicant may apply to the Court if he or she has
been refused access to a record and has complained to the Commissioner in
respect of that refusal. It is clear from the context of the Act read as a
whole and from the wording of that section that the Court was granted
jurisdiction in cases where access to the record had been denied, in whole or
in part. This is consistent with section 37 of the Act, focused as it is on the
actual content of the response provided by a government institution and its
conformity with the Act.
[41] Of
course, the Commissioner could have initiated his investigation as if there had
been a true refusal, without giving the CBC any further delay to respond. In
such a scenario, the applicant could have come to the Court and sought a review
if the CBC had not complied with the findings and recommendations of the
Commissioner. But this was not the course of action chosen by the Commissioner.
Accordingly, it was premature to come to the Court before April 1, 2009. In
other words, I do not think this Court has jurisdiction to judicially review
the determination of a delay for answering ATI requests approved by the OIC in
the exercise of its power under the Act.
[42] While
I have been unable to find any precedent dealing specifically with this issue,
there have been cases where an applicant brought an application to the Court
after a government institution, despite having sought a time extension, had
failed to respond before the expiry of the extended deadline. In the first
decision, the Court concluded that it had jurisdiction to entertain a judicial
review even if the response was provided before the hearing: Canada
(Information Commissioner) v. Canada (Minister of External Affairs), [1990] 3 F.C. 514. This interpretation,
however, was rejected in two subsequent decisions: see X v. Canada (Minister of National Defence), (1990) 41 F.T.R.16 and X v. Canada (Minister of National Defence), [1991] 1 F.C. 670 (F.C.T.D.). In that
last decision, Justice Strayer explicitly endorsed the approach taken by Dubé,
J. in the preceding case and wrote that “...unless there is a genuine and
continuing refusal to disclose and thus an occasion for making an order for
disclosure or its equivalent, no remedy can be granted by this Court”.
[43] I
am therefore reinforced in my view that this Court does not have jurisdiction
to entertain the application filed by the applicant. Even if the CBC was
initially in a deemed refusal situation, it could not be said at the time of
the hearing that the applicant had a genuine and continuing claim of refusal of
access. Further, it is not much of a stretch to add that the applicant did
not have a genuine and continuing claim of refusal of access either during the
extension period given to the CBC to respond to his requests.
(Emphasis
is mine.)
[23]
Justice
de Montigny appears to have relied on the language of Justice Strayer in X(2)
that unless there is a “genuine and continuing refusal to disclose” the Court
will not have jurisdiction under section 41 of the Act. However, in my opinion
Justice Strayer was distinguishing from a delay period invoked by section 9 and
this language was not meant to apply to a deemed refusal situation. Earlier in
his reasons he affirms that a “deemed refusal” is one of the two grounds upon
which an applicant may make an application to the Court pursuant to section 41
of the Act.
[24]
However,
this is not determinative in the present case as there is another legal issue
that is not discussed in X(1), supra, or X(2), supra,
and which is significant to this motion.
[25]
In
his reasons, Justice de Montigny determined that subsection 37(1) of the Act
grants the OIC the power to issue recommendations that it considers appropriate
to solve such complaints. This power “encompasses the right to set a time
frame” such that section 9 is superseded. “It is for the Commissioner to assess
the circumstances and to determine a reasonable extension of time to comply
with its recommendations” (Statham, at paragraph 36). The practical
effect of this power is that the OIC can cure a deemed refusal by approving a
“commitment date”. Thus, the commitment date becomes a time limit set out in
this Act referred to in subsection 10(3). If this interpretation is applied to
the present case then the respondent could not have been in a deemed refusal
situation when the applicant filed his application for judicial review and
consequently the Court would not have jurisdiction. Consequently I would, on
the basis of this interpretation dismiss the motion.
[26]
Counsel
for the applicant presented forceful and interesting arguments that the finding
in Statham undermines the purpose of the Act to provide access to
records in a timely fashion. I note that the applicant in Statham filed
a Notice of Appeal of that decision on November 12, 2009 in the Federal Court
of Appeal.
[27]
In
the circumstances, it is appropriate to defer to my colleague’s interpretation
of subsection 37(1) of the Act as set out in Statham, supra and
apply it to the facts of this motion. Accordingly, the OIC cured the deemed
refusal when it approved a new delay period, ending on September 28, 2009, for
the respondent to comply with the request. The applicant’s application for
judicial review was premature as there was no refusal for the purpose of
section 41.
(2) Discretion to Award Costs:
Should the
Court exercise its discretion pursuant to section 53 of the Act and Rule 400 of
the Federal Courts Rules to award costs?
[28]
Because
I have concluded, on the basis of Statham, supra, that this Court
had no jurisdiction to hear the underlying application for judicial review
pursuant to section 41 of the Act, but the law in this area has yet to be
determined by the Court of Appeal, I do not award costs against either party.
ORDER
The motion is dismissed without
costs. The applicant remains free to file a notice of discontinuance with
respect to the underlying application based on section 41 of the Access to
Information Act.
“Yvon
Pinard”
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