Date: 20110608
Docket: T-1671-09
Citation: 2011 FC 649
Ottawa, Ontario, June 8,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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PUBLIC SERVICE ALLIANCE OF CANADA
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, the Public Service Alliance of Canada, seeks review pursuant to
section 41 of the Access to Information Act, RSC 1985, c A-1 (the Act)
of an access to information request made to the Department of Justice (the
Department) dated June 5, 2009. The applicant seeks a declaration that the
extension of time requested by the respondent is unreasonable and amounts to a deemed
refusal of access to the requested information, and an order compelling the respondent
to disclose the information requested in a timely fashion.
[2]
For
the reasons that follow, I am of the view that the application for judicial
review should be dismissed.
Facts
[3]
On
January 27, 2009, the Federal Government introduced the Public Sector
Equitable Compensation Act (PSECA) as a part of the Budget
Implementation Act, 2009, SC 2009, c 2. (PSECA), a
new regime for pay equity disputes which will replace employees’ rights to
bring pay equity complaints under the Canadian Human Rights Act, RSC 1985, c H-6.
[4]
The
applicant is a union which represents approximately 150,000 federal public
service employees and has acted for its members in numerous pay equity
disputes and related litigation. The applicant was unaware of PSECA
until it was introduced, and immediately began a campaign opposing the changes.
The applicant has also filed a lawsuit in the Ontario Superior Court of Justice
alleging that PSECA and other parts of the Budget Implementation Act, 2009
are unconstitutional. On March 20, 2009, to assist with its campaign and to
better inform its members, the applicant filed an access to information request
with the Department seeking information about the development of PSECA.
[5]
When
the Department responded that it would require a five year extension to respond
to this request, the applicant agreed to split the request into several smaller
ones. One of those requests sought all records, including notes, briefing
notes, agendas, minutes, memoranda, reports, assessments, emails, letters, deck
presentations, summaries, handouts, or other correspondence concerning the
scheduling or conduct of any meetings, presentations or consultations dealing
with policy or legislative development or amendments concerning pay equity, equitable
compensation, or the Public Sector Equitable Compensation (and
any related regulations) from January 1, 2006 to January 26, 2008, held by the
Public Law Sector; the request did not include matters pertaining to ongoing
pay equity complaints, settlements, or related litigation. It is this request
that is the subject of this application.
[6]
The
request was assigned to an analyst on June 30, 2009. Following a meeting of all
access to information office staff to discuss requests dealing with pay equity,
the Department determined that, pursuant to section 9 of the Act, it required
an extension of 760 additional days or 25 months to respond to the request.
That extension was to include 11 months for document review and 14 months for
consultation with other government institutions. The Department advised the applicant
of the extension on July 8, 2009.
[7]
On
July 10, 2009, the applicant contacted the Information Commissioner (the
Commissioner) to file a complaint about the extension, which it claimed was
unreasonable. The Commissioner investigated the complaint and on August 25,
2009, advised that it was in the process of negotiating with the Department to
try and expedite the processing of the request.
[8]
On
August 27, 2009, the applicant received a letter from the Commissioner dated
August 24, 2009 which stated that the Commissioner had determined that the
complaint was not substantiated and that it was therefore dismissed. The applicant
filed the application for judicial review on October 8, 2009.
The issues
[9]
The
issues in this application are as follows:
a. Does the
Court have jurisdiction to hear this application?
b. If so, was
the extension unreasonable?
a. Does the Court have
jurisdiction to hear this application?
Applicant’s arguments
[10]
The
applicant acknowledges that this Court has been divided as to whether section
41 of the Act includes the jurisdiction to review an extension. The applicant
argues, however, that an interpretative approach to this issue and the
consideration of Charter issues lead to the conclusion that a meaningful
right to timely access requires this Court to have the jurisdiction to review
extensions and to compel disclosure where an extension is unreasonable.
[11]
The
applicant relies on the decision of Justice Jerome in Canada (Information
Commissioner) v Canada (Minister of External Affairs), [1989] 1 FC 4, [1988]
FCJ No 383 and the related decision of Justice Muldoon in Canada
(Information Commissioner) v Canada (Minister of External Affairs), [1990]
3 FC 514, [1990] FCJ No 721 (collectively, External Affairs); those
decisions relate to the same application, and in both instances, the Court
found that it had the jurisdiction to determine whether that extension amounted
to a deemed refusal.
[12]
The
applicant argues that the more recent decisions to the contrary fail to
consider the quasi-constitutional nature of the Act and the presumptive right
of access enshrined in the Act. The applicant underlines that the
decision in X v Canada (Minister of National
Defence),
[1991] 1 FC 670, [1990] FCJ No 1081 is premised upon an incorrect
characterization of the Act as purely administrative.
[13]
The
applicant further submits that the approach taken by this Court in X and
in Canada (Attorney General) v Canada (Information Commissioner), 2002
FCT 136, [2002] 4 FC 110 (Attorney General) leaves complainants without
recourse when faced with extensions and delay, as the Commissioner cannot compel
disclosure even if a complaint is substantiated.
[14]
The
applicant quotes various statements from the above decisions to support its
argument that excessive delay amounts to a deemed refusal and also relies on a
freedom of information decision from the United States District Court, Southern
District of New York.
[15]
The
applicant cites the recent decision from the Supreme Court of Canada in Canada (Information Commissioner) v Canada
(Minister of National Defence), 2011 SCC 25, [2011] SCJ No 25, which confirmed the
quasi-constitutional nature of the Act, and relies on the statement in paragraph
54 of that decision that “the notion of control must be given a broad and
liberal interpretation in order to create a meaningful right to access to
government information.”
[16]
Finally, the applicant
argues that the extension at issue has not been justified and that it is
unreasonable because all of the searches required to respond to the request
were completed by October 20, 2009. The applicant further contends that, according
to the evidence of the analyst who is processing the request, it is extremely
unlikely that a response will be received by August 4, 2011, when the extension
expires.
Respondent’s arguments
[17]
The
respondent says that this Court does not have the jurisdiction to hear this application.
It takes the position that, until the extension has expired without a response
to the request, there can be no refusal and therefore no review pursuant to
section 41 of the Act.
[18]
The
respondent advances that the Court should not give any weight to the decisions
in External Affairs, as those decisions were based on concessions made
by the Crown which have not been made in this case. It underscores that External
Affairs can be distinguished from this application because by the time that
application came before the Court, the extension had lapsed without a response
to the request and so there was a deemed refusal pursuant to subsection 10(3)
of the Act.
[19]
The
respondent relies on X, which found that it was not the Court’s role to
second-guess government institutions as to whether an extension beyond the
statutory limit of 30 days was reasonable. It cites also Attorney
General, which adopted the X reasons and found that there could be
no deemed refusal of a request until the extension had expired without a
response being received.
[20]
The
respondent urges that the applicant’s position in pleading that an unreasonably
long extension amounts to a deemed refusal is not supported by the
wording of the Act. Section 10(3) addresses deemed refusals and section
41 limits this Court’s jurisdiction to instances where there has been a
refusal. The respondent argues that this interpretation is supported by the
grounds for a complaint to the Commissioner set out in subsection 30(1) of the
Act, which distinguish between complaints based on a refusal and complaints
based on an extension that the complainant considers unreasonable.
Analysis
[21]
In
my view, there can be no refusal and therefore no review pursuant to section 41
of the Act until the deadline for processing a request has passed. The language
of the Act clearly limits this Court’s jurisdiction to the review of refusals,
whether actual or deemed, and leaves no room for the review of extensions. As
this Court found in Attorney General, at para 25:
[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.
[22]
I
am further persuaded by the reasoning in X in which the Court found at
paragraph 13 that, except where there is an ongoing refusal of access, “it is
not the role of the Court to immerse itself in the reasonability of the conduct
of the internal affairs of a government department.”
[23]
I
acknowledge that the decisions in External Affairs support the
applicant’s case, but I am not persuaded by them. In External Affairs the
Crown conceded that an unreasonable extension amounted to a deemed refusal.
No
such concession has been made here, and in any event the Commissioner has found
that the extension in the instant application was reasonable. Therefore, I am
unable to find that the extension amounts to a deemed refusal that would give
me jurisdiction to hear this application.
[24]
If,
as the applicant argues, no response is received by the conclusion of the
extension, the applicant can complain to the Commissioner. However, there has
not yet been a refusal and, as such, the Court does not now have the
jurisdiction to decide the merits of this application.
b. If so, was the
extension unreasonable?
[25]
In
light of my conclusions above, it is unnecessary to address the second issue.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
The
applicant shall pay costs to the respondent by way of a lump-sum for an amount
of $4,500 inclusive of disbursements.
“Michel
Beaudry”
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